Opinion
No. 27A05-1102-PC-99
10-19-2011
AYRON SAYLORS, Appellant-Petitioner, v. STATE OF INDIANA, Appellee-Respondent.
ATTORNEY FOR APPELLANT : DANIEL K. WHITEHEAD Yorktown, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana ANGELA N. SANCHEZ 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:
DANIEL K. WHITEHEAD
Yorktown, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE GRANT CIRCUIT COURT
The Honorable Mark E. Spitzer, Judge
Cause No. 27C01-0611 -FA-175
MEMORANDUM DECISION - NOT FOR PUBLICATION
RILEY , Judge
STATEMENT OF THE CASE
Appellant-Petitioner, Ayron Saylors (Saylors), appeals the post-conviction court's denial of his petition for post-conviction relief.
We affirm.
ISSUE
Saylors raises one issue on appeal, which we restate as follows: Whether the post-conviction court erred in finding that his trial counsel rendered him effective assistance.
FACTS AND PROCEDURAL HISTORY
In our Memorandum Opinion, we outlined the facts of this case as follows:
At approximately 3:00 a.m. on November 3, 2006, Candice Smith and Kylie Atkins were at a friend's house when Kevin Vandiver told them that he knew where they could get some prescription drugs. Smith, Atkins, and Vandiver drove to a nearby trailer park, and Vandiver pointed out Teresa and Leroy Rochester's trailer. Later, after Smith and Atkins dropped Vandiver off, the women agreed that they would break into the Rochesters' trailer and steal their prescription drugs. Smith and Atkins went to Smith's house to get dark clothing, and they purchased a BB gun at Wal-Mart. When they decided that they needed the assistance of a man, they called Saylors and asked him to help. He met with them a few minutes after their call.Saylors v. State, No. 27A02-0708-CR-664 (Ind. Ct. App. 2008), trans. denied (internal citations omitted).
Smith, Atkins, and Saylors drove Smith's vehicle to the Rochesters' trailer. They parked the car and put on dark clothes, gloves, and masks. Saylors was carrying the BB gun. He kicked open the trailer door, and the three intruders entered the trailer. Leroy stood in front of the bedroom door and attempted to block them from entering the room. Saylors hit Leroy in the head with the gun. Leroy fought back for a short time but then fell to the floor. Teresa sat on the bed and screamed. Saylors stood over Leroy with the gun and hit him in the head with it several times while Smith and Atkins searched the residence for prescription drugs. After finding several bottles of pills, Smith, Atkins, and Saylors left the trailer, ran to their vehicle, and drove away.
When Marion Police Department officers arrived at the crime scene,
Leroy told them that someone had kicked open his trailer door, waking him and Teresa. Leroy had seen three intruders, one man and two women. The man had instructed the women to find Oxycontin pills. Apparently, the Rochesters have numerous medical conditions, and they both take prescription painkillers.
Police also interviewed the Rochesters' neighbor, Mary Stevens. She had heard the car pull up, listened to the commotion coming from the Rochesters' trailer, and watched from her window as the intruders ran to their vehicle and drove away. She gave police the names of two former residents of the trailer park—Nick Smithson and a girl named Ashley—that she suspected might be involved in the crimes. She had also written down a partial license plate number and a description of the getaway car. Police matched this information to a vehicle registered to Ronald Smith. When police visited the address on the registration, Ronald's mother told them that he was away on military service and that Candice Smith was using the vehicle. When police located Smith, she was with Atkins. Both women agreed to go to the police station for interviews. While being questioned, Smith admitted to police that she, Atkins, and Saylors had broken into the Rochesters' trailer and stolen prescription drugs.
On November 9, 2006, the State [filed an Information charging] Saylors with [C]lass A felony burglary resulting in bodily injury, [C]lass B felony robbery with a deadly weapon, and [C]lass B felony conspiracy to commit robbery. Saylors'[] jury trial began on May 14, 2007. John Bowman, Saylors'[] close friend and his cousin's husband, testified that Atkins had called Bowman's house looking for Saylors in the early morning hours of November 3, 2006. Saylors took the call and told Bowman that Atkins "knew where he [could] go get some money or hit a lick [commit a robbery] or whatever." Saylors left Bowman's house right after the call from Atkins. He called Bowman later that morning, stating that he had "done something stupid" and "had to get out of town[."] Saylors also talked to Bowman about his plan to travel to Kentucky in an attempt to mislead police as to his whereabouts on the date of the crimes.
At the close of the evidence, the jury found Saylors guilty on all three Counts. On June 20, 2007, the trial court merged Count III with Count II and sentenced Saylors to forty years for Count I and 15 years for Count II, with sentences to run concurrently. On July 18, 2007, Saylors appealed his conviction, arguing that the trial court had abused its discretion in excluding Mary Stevens' statements to the police that the Rochesters sold pills and that she thought Nick Smithson and "Ashley" might be involved because she had heard that "Ashley" had bought pills from the Rochesters in the past. See id. at p. *2. After reviewing Saylors' arguments, we found that the trial court had not abused its discretion in excluding the statement and affirmed Saylors' conviction. Id.
Subsequently, on October 13, 2009, Saylors filed a petition for post-conviction relief, arguing, among other things, that he had been denied effective assistance of his trial counsel. He claimed that the State had improperly testified during its opening and closing arguments, vouched for the credibility of witnesses, made arguments beyond the evidence presented, and urged the jury members to convict based on their identification with the victim rather than Saylors' guilt. According to Saylors, his attorney should have objected to those statements. Because his attorney failed to object, Saylors claims he did not receive effective assistance.
On January 3, 2011, the post-conviction court conducted a hearing on Saylors' petition, and on January 24, 2011, the post-conviction court entered findings of fact and conclusions of law denying the petition. The post-conviction court found that the disputed statements in the State's opening, closing, and rebuttal arguments were within the reasonable bounds of advocacy. Moreover, even if the statements constituted misconduct, it was "highly unlikely" that they had influenced the jury because the trial court had instructed the jury not to consider the statements of counsel as evidence. (Appellant's App. pp. 17-18). The postconviction court also found that trial counsel had made a reasonable strategic decision not to object.
Saylors now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
On appeal, Saylors asks us to review the post-conviction court's determination that his trial counsel provided him with effective assistance despite failing to object during the State's opening, closing, and rebuttal arguments. On appeal from the denial of post-conviction relief, a petitioner stands in the position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497, 498 (Ind. 2011). In such cases, a petitioner must show that the evidence, taken as a whole, leads unerringly and unmistakably to a conclusion opposite that reached by the trial court. Id. We do not defer to the trial court's legal conclusions, but we will reverse only on a showing of clear error. Id. Moreover, this court will only consider the probative evidence and all reasonable inferences therefrom that support the post-conviction court's determination and will not reweigh the evidence. Bigler v. State, 732 N.E.2d 191, 194 (Ind. Ct. App. 2000), trans. denied.
The assistance of counsel is a right that is guaranteed to all criminal defendants by the Sixth Amendment to the United States Constitution and Article I, section 13 of the Indiana Constitution. In order to establish ineffective assistance of counsel, a defendant must fulfill both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh'g denied. Specht v. State, 838 N.E.2d 1081, 1087 (Ind. Ct. App. 2005), trans. denied. First, the defendant must prove that his or her counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and, second, that the deficient performance prejudiced the defense. Wesley v. State, 788 N.E.2d 1247, 1252 (Ind. 2003). To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different. Id. A reasonable probability is a probability sufficient to undermine confidence in the trial's outcome. Id.
When evaluating ineffectiveness claims, we will be cognizant of the fact that there are countless ways to provide effective assistance in any given case. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. "Because all criminal defense attorneys will not agree on the most effective way to represent a client, 'isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.' Thus, there is a strong presumption that counsel rendered adequate assistance and used reasonable professional judgment." Armstrong v. State, 932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010) (internal citations omitted). Our supreme court has held that the presumption that an attorney has discharged his duty fully is overcome for purposes of post-conviction relief only by showing that the attorney's action or inaction made the proceedings a mockery of justice and shocking to the conscience of the court. Whitlock v. State, 456 N.E.2d 717, 718 (Ind. 1983).
When, as here, a defendant bases an ineffective assistance claim on counsel's failure to object at trial, the defendant must further show that a proper objection would have been sustained. Nordstrom v. State, 627 N.E.2d 1380, 1384 (Ind. Ct. App. 1994), trans. denied. So long as under applicable law the trial court could have overruled the objection, the post-conviction court's conclusion that the trial court would have done so will be affirmed. Lambert v. State, 743 N.E.2d 719, 731 (Ind. 2001), reh'g denied.
In total, Saylors objects to six of the State's statements—one made during the State's opening argument and five made during its closing and rebuttal arguments. First, Saylors draws our attention to the following statement from the State's opening argument:
Ladies and gentlemen[,] this case is about Leroy and Teresa Rochester, both disabled, both with serious and numerous medical problems. Being traumatized, robbed and beaten in their own home. Beaten by this man right here, Ayron Saylors. Ayron Saylors, along with Candice Smith and Kylie Atkins break into the Rochester home on November 3rd of 2006[,] approximately 8:40 a.m[.] Leroy's sleeping. Teresa, his wife, had just woke[n] up. She was still in the bedroom. They live in a house trailer. When all of a sudden they hear their front door being kicked in. Leroy wakes up. His first reaction is to try to shut their bedroom door so the people can't get into their . . . at least to them. Leroy pushes the bedroom door shut and that man right there shoves the door open and immediately hits Leroy in the head with a gun. Teresa Rochester again has severe medical problems. She was born deformed[.] [She] has a rod up in her back, just a tremendous amount of problems, screaming in the bedroom. Three people come in the bedroom. That man right there is beating her husband over the head. Leroy hits the ground, blood [is] running down his face and that man right there tells Teresa not to move or he's gonna kill her.(Trial Court Transcript p. 54). Saylors argues that because the State did not preface its statement with a phrase such as "the evidence will show," the statement was "prejudicial and inflammatory" and "took the effect of evidence." (Appellant's Br. pp. 6, 8).
We will not address the issue of whether this statement constituted prosecutorial misconduct because the failure of Saylors' counsel to object did not prejudice Saylors as required for an ineffective assistance of counsel claim. The trial court admonished the jury that the opening statements were "not evidence" and "should be considered only as a preview of what the attorneys expect the evidence will be." (Trial Court Tr. p. 49). Therefore, regardless of whether or not the prosecutor should have added a statement such as "the evidence will show," his failure to do so, and Saylors' counsel's failure to object, did not prejudice Saylors' trial. See Smith v. State, 678 N.E.2d 1152, 1157 (Ind. Ct. App. 1997), trans. denied (holding that defense counsel's failure to object to prosecutor's misstatement that intent could be presumed did not prejudice the defendant because the trial court properly instructed the jury regarding intent).
Next, Saylors contends that the State inappropriately vouched for its own witnesses and provided its own testimony during the following closing and rebuttal statements:
She has not signed one and she confessed so no matter if there's a plea agreement on the table or not, I would have called her to testify anyway.(Trial Court Tr. p. 488).
* * *
That's what we call cooberation (sic), which is what we look for. What we look for when we're investigating cases and prosecuting cases. I'm not asking you to [take] Kylie Atkins' word and nothing else and believe her, but I do want you to listen and think about their testimony, Candice and Kylie, with everything else and let's talk about that a little bit. Let's talk about cooberation (sic). Let's state . . . with the easiest. Candice and Kylie cooberate (sic) each other[.] . . . [J]ust talk about that for a minute. Candice and Kylie do cooberate (sic) each other.(Trial Court Tr. p. 490).
* * *
Who has a motive to lie in this? Candice? No. Candice has nothing to win or gain. She confessed the day of. She doesn't even know [Saylors] hardly. Kylie was best friends with [Saylors]. She could've picked any name. If she was going to lie, she could've picked any name. She runs with . . . I mean it could've been anybody, but she picks her best friend? She testified [Saylors] was involved with this because that's the truth. [Saylors] was involved in this.(Trial Court Tr. p. 494).
* * *
Uh, [Saylors] says oh I think John's involved. He says that because John testified against him and then they go well no maybe it's this Dan Tutis . . . Titus, something like that[,] that Kylie or Candice has called from the phone. Well, no[,] maybe it's just another friend that they're trying to protect."(Trial Court Tr. p. 505). Saylors also argues that the State improperly encouraged the jury to identify with the victim in the following statement:
Man, if somebody kicked my door in, I was in bed and you jump up and they're hitting you immediately and get you on the floor, I have . . . I would think that would be a big person. You can't blame Leroy Rochester in his description of not knowing the exact height and seize. This is so traumatizing right now. Can you imagine that going on in your home?(Trial Court Tr. p. 506).
We will not address the issue of whether these statements were improper because we find, as the post-conviction court did, that Saylors' counsel's decision not to object was strategic. We have previously held that the choice of defense theory is a matter of trial strategy. Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011). Counsel is given "significant deference in choosing a strategy which, at the time and under the circumstances, he or she deems best." Id. (quoting Potter v. State, 684 N.E.2d 1127, 1133 (Ind. 1997)). Trial strategy is not subject to attack through an ineffective assistance of counsel claim, unless the strategy is so deficient as to fall outside of the objective standard of reasonableness. Benefield, 945 N.E.2d at 799. This is so "even when such choices may be subject to criticism or the choice ultimately prove[s] detrimental to the defendant." Id. (quoting Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998)).
At the post-conviction hearing, Saylors' trial counsel testified that:
I don't typically object to anything in opening argument. It's awful[ly] early to start that, but if an objection [is] not going to get any traction either in front of the jury or in front of the [c]ourt of [a]ppeals, it's pointless. So I typically don't object to things that are given in argument. Unless it's something that I just feel like I have to because I want to preserve the record.(Post-Conviction Court Tr. p. 9). Then, the following exchange occurred between Saylors' trial counsel and post-conviction counsel:
[POST-CONVICTION COUNSEL]: And what about similar statements during the course of the trial? Transition statements or just different things that might be said during someone's actual testimony. Is that the same sort of philosophy in essence?(Post-Conviction Court Tr. p. 9).
[TRIAL COUNSEL]: Yeah. I let the State try their case and I like to try mine. [POST-CONVICTION COUNSEL]: And that's just a matter of fact with you basically?
[TRIAL COUNSEL]: Works pretty good.
These passages illustrate that Saylors' trial counsel made a strategic decision not to object too frequently, both during the State's opening argument and "during the course of the trial," which would include the State's closing and rebuttal arguments. (Post-Conviction Court Tr. p. 9). As we stated above, we afford such strategic decisions "significant deference." Benefield, 945 N.E.2d at 799. In its conclusions of law, the post-conviction court concluded that
trial counsel articulated in the post-conviction relief hearing the strategic reasons for not objecting during opening and closing. Trial counsel has tried at least 90 criminal trials for defendants over the course of 29 years of practice in criminal law. His decision-making fits well within the "strong presumption that counsel rendered adequate assistance and made all decisions by exercising reasonable professional judgment."(Appellant's App. p. 18) (internal citations omitted). We agree with the post-conviction court that these decisions are not so deficient or unreasonable as to fall outside of the usual presumption that counsel rendered adequate assistance.
We note that during the post-conviction hearing, Saylors' trial counsel admitted that when he reviewed the trial transcript he discovered that in hindsight he would have objected to two of the prosecutor's statements. However, we will not reverse the post-conviction court on this testimony, because we still find that counsel made a strategic decision during the trial not to object, regardless of whether he judged the circumstances differently at a later point. As we stated in Benefield, counsel is given significant deference in choosing trial strategies which, "at the time and under the circumstances," he or she deems best. Benefield, 945 N.E.2d at 799 (emphasis added).
Moreover, we note that it is unlikely that the State's arguments prejudiced Saylors. As the post-conviction court pointed out, the jury was given Preliminary Instruction 17 at trial, which stated: "When the evidence is completed, the attorneys may make final arguments. These final arguments are not evidence. The attorneys are permitted to characterize the evidence, discuss the law and attempt to persuade you to a particular verdict. You may accept or reject those arguments as you see fit." (Appellant's App. p. 17). In addition, the jury received Final Instruction 15, which stated that "[s]tatements made by the attorneys are not evidence." (Appellant's App. p. 17). In light of these admonishments, it is, as the post-conviction court concluded, "highly unlikely that the deputy prosecutor's statements put Saylors in [the] 'grave peril'" necessary for us to find that they prejudiced his defense. (Appellant's App. p. 18). Accordingly, we conclude that Saylors did not receive ineffective assistance of counsel.
CONCLUSION
Based on the foregoing, we conclude that the post-conviction court did not err in denying Saylor's petition for post-conviction relief.
Affirmed. NAJAM, J. and MAY, J. concur