Opinion
No. 49A02-1010-PC-1242
09-08-2011
ROBERT JOHNSON, Appellant, v. STATE OF INDIANA, Appellee.
ATTORNEY FOR APPELLANT: JOSEPH M. CLEARY Collignon & Dietrick Indianapolis, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
JOSEPH M. CLEARY
Collignon & Dietrick
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa F. Borges, Judge
Cause No. 49G04-0305-PC-075500
MEMORANDUM DECISION - NOT FOR PUBLICATION
MATHIAS , Judge
Robert Johnson was convicted in Marion Superior Court of two counts of murder and ordered to serve an aggregate sentence of one hundred and ten years in the Department of Correction. Johnson's convictions and sentence were affirmed on direct appeal and he subsequently filed a petition for post-conviction relief alleging ineffective assistance of trial and appellate counsel. The post-conviction court denied Johnson's petition and he appeals. We reorder and restate the issues raised as:
I. Whether Johnson was denied the effective assistance of trial and appellate counsel; and,
II. Whether Johnson's claim of prosecutorial misconduct could have been raised on direct appeal and is therefore procedurally barred.
Concluding that the trial court properly denied Johnson's petition for post-convcition relief, we affirm.
Facts and Procedural History
The following facts discussed in Johnson's direct appeal of his murder convictions and sentence are recited below:
The facts favorable to the conviction are that Johnson lived with Tamnika Powell and their young son, Robert. Powell was pregnant and due to deliver on May 27, 2003. At about 5:00 a.m. on May 10, 2003, Johnson placed a 911 phone call and stated that he heard someone walking through his house when he woke up. He also stated that he had just shot his pregnant wife. Deputies Bill Carter and Gary Judd of the Marion County Sheriff's Department arrived at Johnson's house approximately three minutes after Johnson made the call. When the deputies arrived, Johnson was sitting calmly on the front porch holding Robert. Deputy Judd spoke with Johnson while Deputy Carter checked the house. He found Tamnika bleeding and laying face down in the bedroom. He did not detect a pulse. Emergency medical personnel arrived on the scene and attempted to resuscitate Tamnika, but were unsuccessful. Emergency personnel noted that Tamnika was eight or nine months pregnant, and she was transported to Wishard Memorial Hospital.Johnson v. State, No. 49A04-0402-CR-113, Slip op. at 1-4 (Ind. Ct. App. February 4, 2005), trans. denied.
At the hospital, Dr. Victoria Palmer-Smith performed an emergency Cesarean section on Tamnika's body and delivered a boy. The child was blue rather than pink in color, was in respiratory distress, did not move spontaneously, and his heartbeat was extremely slow for a newborn -approximately thirty beats per minute. He was immediately placed on a respirator and sent to neonatal intensive care. After he was transferred to neonatal intensive care, the baby experienced several episodes of cardio-respiratory arrest, and finally died on May 11, the day after his birth.
An autopsy was performed on Tamnika's body. It was determined that she had suffered a laceration on the back of her head that was consistent with being struck by a two-by-four board, as well as three gunshot wounds. At least one of the bullet wounds was inflicted while Tamnika was lying down. An autopsy on the baby's body showed that the infant was full term or nearly full term at the time of birth and was completely normal in development. The autopsy revealed the baby's organs were damaged as a result of lack of oxygen, and the cause of death was determined to be oxygen deprivation. As a result of the shooting, Johnson was charged with two counts of murder, one for each victim, i.e., Tamnika and her infant son.
Johnson was incarcerated at the Marion County Jail before trial. He shared a cell with Leon Smith, whom he had known for ten years. Smith had two D felony cases pending against him. One evening, Johnson told Smith that he (Johnson) had been out drinking one night with friends, one of whom told him that he (Johnson) might not be the father of the baby Tamnika was carrying. Johnson told Smith he and Tamnika argued when he got home, and the confrontation became physical. After throwing Tamnika around the laundry room, Johnson went to the bedroom and retrieved a pistol. When Tamnika came down the hallway, Johnson shot her twice with a pistol. After she had fallen to the floor, Johnson retrieved a rifle and shot her where she lay. According to Johnson, Tamnika was still alive when he called the police.
After Johnson had relayed the above information to Smith, Smith asked his girlfriend to contact the Marion County Prosecutor's Office (the Prosecutor's Office). After speaking with Smith, the Prosecutor's Office agreed to drop the two D felony charges against Smith in exchange for his testimony against Johnson at Johnson's trial. Thereafter, Smith obtained more information from Johnson and provided it to the Prosecutor's Office. Johnson was convicted as set out above following a jury trial.
In his direct appeal, Johnson raised the following issues:
1) whether the trial court abused its discretion when it refused to instruct the jury on the lesser-included offense of reckless homicide and tendered an instruction to the jury on intervening causation;Our court rejected Johnson's arguments and affirmed his convictions and sentence. See Id. at 4-22. Johnson's appellate counsel also filed a petition to transfer the case to our supreme court, but that petition was denied.
2) whether the trial court abused its discretion when it permitted cellmate Smith to testify that Johnson described his motive for and admitted to shooting Tamnika;
3) whether the trial court abused its discretion when it (a) allowed responding emergency personnel to testify concerning Johnson's demeanor when they arrived on the scene, (b) permitted Tamnika's mother to testify that Tamnika had planned to move to another residence after the child was born; and (c) admitted the testimony of the attending forensic pathologist; and
4) whether Johnson's 110-year aggregate sentence was inappropriate in light of the nature of the offense and the character of the offender.
On January 17, 2006, Johnson filed a pro se petition for post-conviction relief. Johnson, by counsel, filed an amended petition on June 15, 2009. The post-conviction court held evidentiary hearings on December 22, 2009, and January 25, 2010. After the parties submitted their proposed findings of fact and conclusions of law (over seven months after the last hearing), the post-conviction court entered its findings of fact and conclusions of law on September 30, 2010, and denied Johnson's petition for post-conviction relief.
Specifically, the post-conviction court concluded that trial counsel was not ineffective because Johnson:
1) failed to prove that trial counsel's investigation fell below an objective standard of reasonableness,
2) failed to prove that trial counsel's performance was deficient because he did not conduct professional interviews of Johnson and other defense witnesses,
3) failed to prove that trial counsel did not adequately advocate for the interests of his client, and
4) failed to prove that he was prejudiced because counsel did not file a motion to suppress evidence recovered during a warrantless search of Johnson's residence.
The post-conviction court further concluded that appellate counsel was not ineffective for
1) failing to raise the issue of prosecutorial misconduct,Finally, the post-conviction court rejected Johnson's free-standing claim of prosecutorial misconduct because it was known or available at the time of his direct appeal. Johnson now appeals. Additional facts will be provided as necessary.
2) failing to argue that the trial judge failed to remain a neutral arbitrator, and
3) failing to argue that the trial court should have excluded the pieces of wood found during the warrantless search of Johnson's home.
Standard of Review
Post-conviction proceedings do not grant a petitioner a "super-appeal" but are limited to those issues available under the Indiana Post-Conviction Rules. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001) (citing Ind. Post-Conviction Rule 1(1)). Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner who appeals the denial of PCR faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post-conviction court. Kien v. State, 866 N.E.2d 377, 381 (Ind. Ct. App. 2007), trans. denied. The appellate court must accept the post-conviction court's findings of fact and may reverse only if the findings are clearly erroneous. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). If a post-conviction petitioner was denied relief, he or she must show that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion than that reached by the post-conviction court. Ivy v. State, 861 N.E.2d 1242, 1244 (Ind. Ct. App. 2007), trans. denied.
I. Ineffective Assistance of Trial Counsel
Claims of ineffective assistance of trial counsel are generally reviewed under the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). That is, a defendant must demonstrate that his counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms and that his counsel's deficient performance resulted in prejudice. Strickland, 466 U.S. at 687-88. Prejudice occurs when the defendant demonstrates that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability arises when there is a "probability sufficient to undermine confidence in the outcome." Id.
A claim may be disposed of on either prong of the two-part Strickland test. Grinstead, 845 N.E.2d at 1031. An inability to satisfy either prong of the Strickland test is fatal to an ineffective assistance claim. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999). Generally, we need not evaluate counsel's performance if the defendant has suffered no prejudice. And most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id. Furthermore,
Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. The Strickland Court recognized that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.Timberlake, 753 N.E.2d at 603 (citations omitted).
First, Johnson argues that his trial counsel was ineffective for failing to file a motion to suppress two broken pieces of blood-stained wood found during a warrantless search of his residence. During Johnson's trial, Detective Gullion testified that he returned to Johnson's home after the shooting without a search warrant, and during the warrantless search he seized the broken pieces of wood. Johnson also argues that counsel was ineffective for failing to object to the admission of the wooden boards because they had been tampered with. Specifically, Johnson alleges that law enforcement officers moved the boards, and "it would have been very easy for blood to have gotten on the board through a transfer from the blood stain on the floor." Appellant's Br. at 10.
The post-conviction court concluded that the evidence would have been admissible under the inevitable discovery exception to the exclusionary rule because Detective Gullion later obtained a search warrant of the crime scene to search for additional evidence. Appellant's App. pp. 16-17 n.5.
The State used this evidence to argue that the injury to the back of the Tamnika's head was caused by blunt force trauma and hypothesized that Johnson must have struck Tamnika with the broken wooden board. Specifically, the State argued:
The two inch gash at the back of her head that caused this much bleeding. It wasn't an old wound. It was a new one and you heard Dr. Radentz tell you it wasn't caused by falling on this carpet. It was caused by blunt force trauma. . . . Is this an accident? This is no accident. This is taking a board and bashing it on the back of your girlfriend's head just before you plow her down with two different guns. That's what this is. This isn't an accident. Why, we don't know.Trial Tr. p. 427. In response, trial counsel argued that Tamnika's blood was likely found on the board because of the amount of blood in the bedroom, the movement of her body by emergency medical personnel, and the carelessness of law enforcement personnel who stepped in the blood at the scene. Id. at 436. Counsel also noted that there was no evidence of skin or hair follicles on the board and no evidence of wood splinters in the laceration on Tamnika's head. Id.
Trial counsel failed to file a motion to suppress but did move to exclude the blood stained pieces of wood and any other evidence obtained during the warrantless search. The motion was denied, and counsel did not contemporaneously object to the admission of the exhibits at trial. Assuming for the sake of argument that trial counsel's performance was deficient when he failed to either file a motion to suppress or object to the admission of the exhibits during trial, we cannot conclude that Johnson was prejudiced by the allegedly deficient performance.
The admission of the blood-stained pieces of wood certainly cast doubt on Johnson's claim of mistake of fact. But the other overwhelming evidence supporting his murder convictions renders his claim that he thought Tamnika was an intruder "implausible and incredible." See Appellant's App. p. 66.
The State presented evidence that Tamnika suffered blunt force trauma to her head, and that she was shot three times. By Johnson's own admission, he shot at Tamnika multiple times with a 9 millimeter handgun, and then "crawled into [his] closet, grabbed [his] rifle . . . and shot from the closet." Trial Tr. p. 377. The State presented evidence that Tamnika was likely laying on the ground when she was shot with the rifle. Johnson admitted that he did not try to render any aid to Tamnika after she was shot. Id. at 398.
Johnson also testified that in the eight months he lived at the residence it had not been burglarized, and the house had a surveillance system with cameras at the front door and an alarm. Johnson stated that the alarm was activated and the doors were locked. Id. at 388-89. Despite his home's security system, Johnson testified that when he heard the cracking sound in the hallway, he grabbed the handgun from the nightstand next to the bed and immediately started shooting.
No reasonable person could believe that Johnson would not have at least checked the bed he was sleeping in to determine whether his pregnant girlfriend and two-year old son remained in the bed with him before he started shooting at the bedroom door. To the contrary, the evidence presented leads only to the conclusion that Johnson intended to kill Tamnika when he shot her multiple times with two different firearms. For these reasons, Johnson was not prejudiced by his trial counsel's failure to file a motion to suppress and or object to the admission of the two blood-stained pieces of wood.
Next, Johnson argues that trial counsel was ineffective for failing to investigate the true identity of Johnson's cellmate who testified on behalf of the State. At trial, Johnson's cellmate testified that his name was Leon Smith, but he also admitted that he has used five or six aliases in the past, including the alias of Brian Johnson. Smith/Johnson also testified that he is a convicted robber and had pending Class D felony charges against him. He stated that he agreed to testify against Johnson in exchange for the State's promise to dismiss the pending Class D felony charges.
Despite the fact that Smith/Johnson's own testimony reflected poorly on his credibility, Johnson claims that if trial court had investigated Smith/Johnson's true identity, "the jury would have learned that Smith/Johnson was lying even about his real name." Appellant's Br. at 11. Because the jury was well aware that Smith/Johnson had used several aliases, we cannot conclude that Johnson was prejudiced because his trial counsel failed to discover that his cellmate's legal name was Brian Johnson and not Leon Smith. Moreover, in its closing argument, the State informed the jury that they could disregard Smith/Johnson's testimony because "he doesn't add anything to this case that's not proven by other means." Trial Tr. p. 445.
For all of these reasons, we conclude that Johnson did not suffer any prejudice from trial counsel's alleged deficient performance, and therefore, his trial counsel was not ineffective.
II. Ineffective Assistance of Appellate Counsel
The standard of review for a claim of ineffective assistance of appellate counsel is the same as for trial counsel. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). There are three ways in which appellate counsel may be considered ineffective: (1) when counsel's actions deny the defendant his right of appeal; (2) when counsel fails to raise issues that should have been raised on appeal; and (3) when counsel fails to present claims adequately and effectively such that the defendant is in essentially the same position after appeal as he would be had counsel waived the issue. Grinstead, 845 N.E.2d at 1037.
The decision of what issues to raise on appeal is one of the most important strategic decisions made by appellate counsel. Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997). Thus, we give considerable deference to appellate counsel's strategic decisions and will not find deficient performance in appellate counsel's choice of some issues over others when the choice was reasonable in light of the facts of the case and the precedent available to counsel at the time the decision was made. Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). To establish deficient performance for failing to raise an issue, the petitioner must show that the unraised issue was "clearly stronger" than the issues that were raised. Bieghler, 690 N.E.2d at 194.
Johnson argues that his appellate counsel was ineffective for failing to appeal the warrantless seizure of the broken pieces of wood. Because trial counsel failed to object to the admission of this evidence, Johnson's appellate counsel would have had to argue that admission of the broken pieces of wood constituted fundamental error. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).
The fundamental error exception is "extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies theId. (citations omitted).
defendant fundamental due process." The error claimed must either "make a fair trial impossible" or constitute "clearly blatant violations of basic and elementary principles of due process." This exception is available only in "egregious circumstances."
In Brown, our supreme court made the following observations about the doctrine of fundamental error:
This doctrine has been applied, for example, to review a conviction without proof of an element of the crime despite the lack of objection. Smith v. State, 459 N.E.2d 355, 357 (Ind. 1984). But an error in ruling on a motion to exclude improperly seized evidence is not per se fundamental error. Indeed, because improperly seized evidence is frequently highly relevant, its admission ordinarily does not cause us to question guilt. That is the case here. The only basis for questioning Brown's conviction lies not in doubt as to whether Brown committed these crimes, but rather in a challenge to the integrity of the judicial process. We do not consider that admission of unlawfully seized evidence ipso facto requires reversal.
Id.
In this case, if we assume the detective's warrantless search was unlawful, we cannot conclude that admission of the broken pieces of wood constitutes fundamental error. The ultimate issue the jury was asked to resolve in this case was whether Johnson deliberately killed Tamnika or whether she was shot because he mistook her for an intruder. The pieces of wood were admitted to support the State's hypothesis that Johnson and Tamnika had fought before he shot her and he struck her in the head with the wooden board causing it to break.
As we previously noted, in its findings of fact and conclusions of law, the post-conviction court concluded that the evidence would have been admissible under the inevitable discovery exception to the exclusionary rule. See supra footnote 1.
It was undisputed that Tamnika suffered a laceration to her head likely caused by blunt force trauma. If the boards had not been admitted at trial, the remaining evidence, i.e. the laceration to Tamnika's head and the manner of the shooting, would be more than enough evidence to support Johnson's conviction for murder. Therefore, appellate counsel would not have prevailed had he raised the argument that admission of the broken pieces of wood constituted fundamental error. Because the unraised issue was not "clearly stronger' than the issues appellate counsel raised in Johnson's direct appeal, we conclude that Johnson was not subjected to ineffective assistance of appellate counsel.
III. Prosecutorial Misconduct
Reiterating his arguments concerning the tampering of the broken wooden boards and Smith/Johnson's testimony, Johnson argues that his trial was "rendered unfair by prosecutorial misconduct" because the State permitted the jury "to hear false or misleading testimony, which the State had a duty to correct[.]" Appellant's Br. at 15. Johnson may not raise freestanding claims of error in a post-conviction proceeding. Rather, in "post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal." Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002).
Here, Johnson has not demonstrated that his arguments were unavailable at the time of trial or direct appeal. Consequently, we will not address the arguments as freestanding claims. See Conner v. State, 829 N.E.2d 21, 26 (Ind. 2005) (holding that the petitioner's post-conviction claim "of trial court bias was not raised at trial or in [the petitioner's] earlier appeals, and [was] therefore procedurally defaulted").
Conclusion
For all of these reasons, we affirm the post-conviction court's denial of Johnson's petition for post-conviction relief.
Affirmed. KIRSCH, J., and VAIDIK, J., concur.