Opinion
No. 3:05cv0209 AS.
October 25, 2005
MEMORANDUM OPINION AND ORDER
On or about April 11, 2005, pro se petitioner, Charles E. Watkins, an inmate at the Miami Correctional Facility in Bunker Hill, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on August 10, 2005, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on September 6, 2005, and then asked for leave to file an amended Traverse on September 12, 2005. The amended Traverse was filed on October 5, 2005
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. At the time of the filing of this petition, he was incarcerated in the MCF in this district. He was convicted in the Tippecanoe Superior Court in 2001 of a series of offenses that resulted in an aggregate 28-year sentence. Much of this is more clearly explicated in an unpublished memorandum decision of the Court of Appeals of Indiana authored by Judge Friedlander, dated June 18, 2002. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein. It is to be noted that Judges Brook and Sharpnack concurred in that opinion. Certainly this petitioner is entitled to the benefits, if any of Houston v. Lack, 487 U.S. 266 (1988). It is also correct that with reference to the facts found by the second highest court in Indiana, there is a burden on the petitioner to rebut the presumption of correctness under 28 U.S.C. § 2254(e)(1).
Thereafter, there was post-conviction action in the state trial court which resulted in yet another memorandum opinion of the Court of Appeals of Indiana entered on July 21, 2005, which is marked as Appendix "B", attached hereto and incorporated herein. Certainly the provision of 28 U.S.C. § 2254(e)(1) also applies. It is also to be noted that with reference to the most recent opinion of the Court of Appeals of Indiana, the Supreme Court of Indiana denied transfer on March 17, 2005.
Mr. Watkins makes three claims in his petition. First, he alleges the trial court committed fundamental erred under Indiana law in not giving an instruction that the state was required to show that he didn't manufacture the controlled substance only for his personal use. Second, he alleges his trial counsel was ineffective. Third, he alleges his appellate counsel was ineffective.
Mr. Watkins' first claim was not raised on direct appeal. During the post-conviction proceedings, because it couldn't be cognizable otherwise, this claim was framed as an issue of ineffective assistance of counsel for failing to tender an instruction on the definition of "manufacture." Likewise, this claim will be considered along with the other ineffective assistance of counsel claims.
Mr. Watkins claims that his trial counsel was ineffective for failing to investigate and suppress his statement to Detective Davis, failing to file a motion to suppress the testimony regarding the telephone call from his wife, failing to impeach a state's witness with testimony from individuals identified to trial counsel, failing to investigate which caused him to present a non-participation defense without discussing options with Mr. Watkins, and failing to tender an instruction on manufacturing.
The applicable standards for review here are found in 28 U.S.C. § 2254(d) as well as Williams v. Taylor, 529 U.S. 362 (2000). Mr. Watkins issues are raised here under Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Mr. Watkins was required to establish that his counsel's performance was deficient and that absent those alleged deficiencies, there was a reasonable probability of a different outcome of the proceedings. United States v. Cronic, 466 U.S. 648 (1984), an opinion by Justice Stevens, involved the question of effectiveness of a criminal defense lawyer trying his first case. Both Cronic and Strickland are relevant here, and it is the view from here that the Court of Appeals of Indiana got that issue correct under the prevailing decisions of the Supreme Court of the United States.
In a series of recent decisions, the Court of Appeals in this circuit in dealing with effective assistance of counsel issues has certainly not envisioned 20-20 hindsight perfection. In fact, a series of decisions give defense counsel a fairly discretionary array of options to make the best arguments that had the opportunity to succeed. Here, certainly the decision of the Supreme Court in Michigan v. Mosley, 423 U.S. 96 (1975) was considered and followed.
In this case the Indiana Court of Appeals considered each of Mr. Watkins' allegations of ineffective assistance of counsel. First, Mr. Watkins alleges that his trial counsel failed to file a motion to suppress the statement he made to a police officer after he had invoked his right to remain silent. Mr. Watkins argues that because is trial counsel presented a non-participation defense, there was no rational justification for counsel's failure to make an attempt to suppress the statement. The respondent argues that the Indiana Court of Appeals was correct in finding that trial counsel was not ineffective for failing to suppress the statement.
Mr. Watkins' trial counsel testified that he believed there were no grounds to suppress the statement because Mr. Watkins initially declined to answer questions and did not invoke his right to counsel. Mr. Watkins was approached by a different officer more than thirty minutes after he initially declined to answer questions, and had not requested counsel. The state court relied on Michigan v. Mosely, 423 U.S. 96 (1975) in determining that Mr. Watkins' right to cut off questioning were scrupulously honored, and that trial counsel would not have succeeded in arguing otherwise. Mr. Watkins was given his Miranda rights, he had not invoked his right to counsel, and the statement was made to a different office more than 30 minutes after he first declined to make a statement. Mr. Watkins' trial counsel testified that he did not file a motion to suppress because he didn't believe there were grounds to do so. Mr. Watkins has not shown that if trial counsel had made the motion, the statement would have been suppressed. Mr. Watkins trial counsel was not ineffective for not attempting to suppress the statement.
Second, Mr. Watkins argues that trial counsel was ineffective for failing to make a proper objection and/or attempt to suppress an incriminating statement made by his wife on a cellular telephone call to Mr. Watkins when the phone was answered by a police officer. Mr. Watkins argues that his trial counsel was ineffective because counsel failed to make a proper objection to the admission of the statement or to have the statement suppressed based on the fact that the caller's identity was not authenticated. Mr. Watkins argues that if trial counsel had made a proper objection or moved to suppress the statement, the jury would not have heard the statement and the result of the proceedings would have been different. The respondent argues that trial counsel would not have succeeded in preventing the admission of the police officer's testimony regarding Mr. Watkins' wife's statement.
The Indiana Court of Appeals found that Mr. Watkins' trial counsel was not ineffective for failing to object to the wife's statements on the grounds of lack of foundation because such an objection would have not have been sustained. The court found that there was sufficient foundation given that the caller identified herself and had intimate knowledge of facts that only someone close to Mr. Watkins would know. The police officer's testimony as a whole was sufficient to establish the foundation for the admission of the statements made during the phone call. Mr. Watkins has not shown that he was prejudiced by his trial counsels failure to object on different grounds, specifically lack of foundation for the identity of the caller who made the statements, nor has he shown that the objection would have been sustained.
Mr. Watkins next alleges that trial counsel was ineffective for failing to tender an instruction on "manufacture" and failed to object when the trial court didn't give such an instruction. Further, he claims counsel was ineffective for failing to discuss possible defenses with Mr. Watkins. Mr. Watkins argues that there was no rational justification for trial counsel's failure to tender an instruction or to object to the trial court's failure to instruct the jury on every element of the crime charged. The respondent argues that the Indiana Court of Appeals correctly found that trial counsel was reasonable in not objecting to the trial court's instruction because the defense used did not warrant an instruction defining "manufacture" in addition to the court's instruction which correctly set fort the elements of the offense.
The Indiana Court of Appeals found that based on Mr. Watkins' trial counsel's testimony, it was reasonable for his counsel to not tender an instruction or to object to the trial court's final instructions on those grounds. The court reasoned that at the time of the trial the amended statute was not yet in effect. The trial court's instructions were proper given Mr. Watkins' defense was that he was simply at the wrong place at the wrong time and was not involved in the manufacturing process. Mr. Watkins has not established that a proper objection would have been sustained, or that trial counsel's failure to object was unreasonable and resulted in sufficient prejudice such that the outcome would have been different. This claim is without merit.
Mr. Watkins claims that his trial counsel failed to properly impeach Farrell, a witness for the state. Mr. Watkins says that there was no rational justification for trial counsel's failure to depose potential witnesses that would have provided valuable information to his defense, and that it was cannot be considered adequate representation or sound trial strategy not to question Farrell regarding threats made against his family by law enforcement officials. The respondent argues that Mr. Watkins has failed to show that his trial counsel's decision to elicit from Farrell that he expected lenient treatment in exchange for cooperation was ineffective assistance.
To establish a claim of ineffective assistance of counsel, Mr. Watkins must show that trial counsel's performance was unreasonable, and that he was prejudiced by the unreasonable performance. Mr. Watkins' trial counsel chose to impeach Farrell by bringing to light the fact that Farrell thought he would receive leniency from the State in exchange for his cooperation. Mr. Watkins says that his counsel should have subpoenaed a witness who could have testified that Farrell had been threatened by police in order to obtain his testimony. Mr. Watkins' counsel was aware of the allegation that Farrell had been threatened by the police, but counsel made a choice not to use the unsubstantiated information at trial. Mr. Watkins has not shown how trial counsel's performance was deficient or unreasonable, nor has he shown that he was prejudiced by the performance.
Finally, Mr. Watkins alleges that there was no rational justification for appellate counsel's failure to present as fundamental error the trial court's failure to instruct the jury on every element of the offense charged, specifically on the element of manufacturing. Mr. Watkins' appellate counsel says in answers to interrogatories (DE 13, part 12) he reviewed the instructions given to determine if there was reversible error, that he was aware of the "personal use" exemption, that he believed he raised the issues that had the best opportunity for a reversal of the conviction or modification of the sentence. He says he saw no evidence to indicate the defendant was making a personal use argument.
Mr. Watkins' trial counsel was not ineffective for failing to tender a jury instruction regarding "personal use" because the strategy of the case was that he did not use the drug and there was no case law at the time of the trial to support the personal use language. Likewise, appellate counsel was not ineffective for failing to raise the issue of ineffective trial counsel regarding the jury instruction related to "manufacture" and "personal use". Mr. Watkins' appellate counsel made a strategic decision based on the trial transcript. Mr. Watkins has not established that his appellate counsel was deficient, or that he was prejudiced by the decisions made.
For all of the reasons stated, the petition is DENIED.
IT IS SO ORDERED.
APPENDIX A
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precendent 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: ATTORNEYS FOR APPELLEE:
HAROLD E. AMSTUTZ STEVE CARTER
Lafayette, Indiana Attorney General of Indiana
JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CHARLES E. WATKINS, ) ) Appellant-Defendant, ) ) vs. ) No. 79A05-0109-CR-415 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. ) APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable George J. Heid, Judge Cause No. 79D02-0105-CF-66 June 18, 2002 MEMORANDUM DECISION — NOT FOR PUBLICATIONFRIEDLANDER, Judge
Following a jury trial, Charles E. Watkins was found guilty on six counts: Counts I and II, Dealing in a Schedule II Controlled Substance, class B felonies; Count III, Possession of a Schedule II Controlled Substance, a class D felony; Count IV, Conspiracy to Commit Dealing in a Schedule II Controlled Substance, a class B felony; Count V, Maintaining a Common Nuisance, a class D felony; and Count VIII, Illegal Drug Lab, a class D felony. Watkins was found not guilty on Count VI, Possession of Marijuana, a class A misdemeanor; and Count VII, Reckless Possession of Paraphernalia, a class A misdemeanor. The court declined to enter judgment of conviction on Counts III and VIII. He was sentenced to eighteen years each on Counts I, II, and IV, and three years on Count V. All sentences were ordered to be served concurrently, and Count IV was enhanced by ten years based on a finding by the court that Watkins was a habitual offender. He was sentenced to an aggregate twenty-eight-year sentence with three years suspended. Watkins presents the following restated issues for review:
1. Did the trial court err in refusing to retroactively apply the amendments to Ind. Code § 30-50-2-8 that limit the State's ability to seek a habitual offender enhancement against Watkins?
Ind. Code Ann. § 35-48-4-2 (West, PREMISE through 2001 1st Reg. Sess.).
IC § 35-48-4-7 (West, PREMISE through 2001 1st Reg. Sess.).
IC § 35-48-4-2 and Ind. Code Ann. § 35-41-5-2 (West 1998).
IC § 35-48-4-13 (West Supp. 2000).
IC § 35-48-4-14.5 (West, PREMISE through 2001 1st Reg. Sess.).
IC § 35-48-4-11 (West 1998).
IC § 35-48-4-8.3 (West 1998).
We caution Appellant's counsel to observe the strict rules of appellate procedure governing the form of briefs submitted to the court on appeal. Specifically, "[a]ll printing in the text shall be double-spaced except lengthy quotes and footnotes shall be single-spaced." Ind. Appellate Rule 4(E).
2. Was Watkins's sentence manifestly unreasonable?
3. Did the trial court properly admit statements made to the detective by Watkins's wife?
We affirm.
The facts most favorable to the convictions reveal that from February to May 2001, Watkins, Mike Farrell, and Dale Sanders manufactured methamphetamine in two separate locations on approximately forty to fifty occasions. One location was in the "mushroom hole", a densely wooded area off of County Road 600 West in West Point, Tippecanoe County, Indiana. The second location was the basement, workshop, and trailer at Rod Sanders's residence, located at 5818 Division Road, Tippecanoe County, Indiana. The three men purchased pseudoephedrine pills and lithium batteries at Wal-Mart, Dollar General, and CVS to manufacture methamphetamine. They also purchased Liquid Fire from Lutterlohs Garden Trap and True Value, and stole anhydrous ammonia from farmers' fields and the Co-op in Linden. Watkins and Sanders split the methamphetamine equally, but each gave Farrell a small amount for his assistance in obtaining the items and cleaning up. Both Watkins and Sanders sold and used the methamphetamine.
On May 3, 2001, West Lafayette Police Detectives Nancy Hetrick and Daniel Schumaker, both members of the Tippecanoe County Drug Task Force, met with a confidential informant. Following that meeting, a search was conducted of the "mushroom hole". Watkins's methamphetamine lab was discovered. A search warrant was obtained for the residence at 5818 Division Road. Upon execution of the search warrant, the second methamphetamine lab was discovered. Watkins was found by the officers hiding face-down in a pile of debris. He was in possession of .04 grams of methamphetamine. Watkins's vehicle, parked near the camper on the property, contained a fanny pack that held .03 grams of methamphetamine. Several other items were found in Watkins's vehicle: a heavy hose used to remove anhydrous ammonia, safety glasses, a one-half gallon container of Rooto drain cleaner, empty sufadrine boxes, six empty blister packs of pills, orange gloves, Red Devil lye, two cell phones, and a police scanner.
1.
Pursuant to Ind. Code Ann. § 35-50-2-8 (West, PREMISE through 2001 1st Reg. Sess.), the State may seek to have a person sentenced as a habitual offender. The statute, however, was recently amended to restrict the State from seeking to have a person sentenced as a habitual offender under certain specified conditions. Of particular relevance here, IC § 35-50-2-8(b)(3) restricts the State's ability to seek habitual offender status where all of the following conditions are met:
(A) The offense is an offense under IC 16-42-19 or 35-48-4.
(B) The offense is not listed in section 2(b)(4) of this chapter.
(C) The total number of unrelated convictions that the person has for:
(i) dealing in or selling a legend drug under IC 16-42-19-27;
(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(iii) dealing in a schedule I, II, III controlled substance (IC 35-48-4-2);
(iv) dealing in a schedule IV controlled substance (IC 35-48-4-3); and
(v) dealing in a schedule V controlled substance (IC 35-48-4-4); does not exceed one (1).
Although the amendment was not in effect at the time he committed the crime, Watkins argues that it should nevertheless be retroactively applied to his case on direct appeal. Accordingly, Watkins requests that his ten-year enhancement for being a habitual offender be "declared void and set aside." Appellant's Brief at 10.
Where the retroactive application of a statute is involved, the general rule is that the law in effect when the crime is committed controls sentencing. Richards v. State, 681 N.E.2d 208 (Ind. 1997). The doctrine of amelioration is an exception to this general rule and allows a defendant, who is sentenced after the effective date of a statute that provides for more lenient sentencing, to take advantage of the more lenient statute rather than be sentenced under the more harsh statute that was in effect when the defendant was charged or convicted. Id. "Application of the doctrine is appropriate 'only if the legislature intended that the statute as amended apply to all persons to whom such application would be possible and constitutional.'" Hellums v. State, 758 N.E.2d 1027, 1028 (Ind.Ct.App. 2001) (quoting Turner v. State, 669 N.E.2d 1024, 1027 (Ind.Ct.App. 1996), trans. denied). In determining whether the statute as amended applies to an offense committed before its enactment, we look to legislative intent. Determining legislative intent is foremost in construing any statute and, wherever possible, this court will give deference to that intent. Tedlock v. State, 656 N.E.2d 273 (Ind.Ct.App. 1995).
Watkins argues that because the legislature deemed the issue an emergency and made the amendment effective May 11, 2001, rather than July 1, 2001, it is unclear whether the legislature intended for provisions of the new law to apply to Watkins. As such, Watkins urges that any ambiguity be resolved in favor of the defendant and against imposing penalty.
Contrary to Watkins's contention, we conclude that the legislative intent is unambiguous, specifically providing that: "IC 35-50-2-8(b)(3), as amended by this act, applies only if the last offense for which the state seeks to have the person sentenced as a habitual offender was committed after June 30, 2001." P.L. 291-2001, Sec. 228. Because the legislative intent is clear and unambiguous indicating that the amendment only be applied to an offense committed after June 30, 2001, we conclude that the general rule, and not the exception, applies to the sentencing of Watkins. The offense for which the State sought the habitual offender enhancement, conspiracy to commit dealing, was committed from February to May 2001. Thus, Watkins's sentence properly falls within the parameters of the statute in force at the time the offense was committed. Watkins was properly sentenced under the previous statute, and there is no merit to the argument that his sentence should be revised based on the recent amendment to IC § 35-50-2-8.
2.
Watkins further argues that his sentence of twenty-eight years was excessive and should be substantially reduced.
Sentencing decisions are entrusted to the sound discretion of the trial court, are given great deference, and will only be reversed for abuse of discretion. The trial court's sentencing discretion includes the determination of whether to increase presumptive penalties, impose consecutive sentences on multiple convictions, or both. In doing so, the trial court determines which aggravating and mitigating circumstances to consider, and is solely responsible for determining the weight to accord each of these factors.Perry v. State, 751 N.E.2d 306, 308-9 (Ind.Ct.App. 2001) (citations omitted). When imposing an enhanced sentence, the trial court must identify all significant aggravating and mitigating circumstances, include a specific reason why each circumstance is aggravating or mitigating, and weigh the mitigating circumstances against the aggravating circumstances. Love v. State, 741 N.E.2d 789 (Ind.Ct.App. 2001).
A person convicted of a class B felony may be sentenced to a presumptive term of ten years' imprisonment, with up to ten years added for aggravating circumstances and up to four years subtracted for mitigating circumstances. IC § 35-50-2-5 (West 1998). Watkins received eighteen years for each of the three class B felony convictions, three years for the class D felony convictions, and a ten-year enhancement for the habitual offender determination.
The sentencing order states in relevant part:
The Court finds as aggravating factors that the defendant has a criminal history. The defendant has had petitions to revoke probation filed. There have been attempts at rehabilitation. There were large quantities of methamphetamine for his own use and for sale. The defendant was involved in a sophisticated operation which included thefts of anhydrous ammonia and other equipment.
The Court finds as mitigating factors the defendant has family support. Imprisonment would be a hardship on his dependents.
The Court further finds that the aggravating factors outweigh the mitigating factors.Appellant's Appendix at 94.
Watkins contends that the trial court articulated only one aggravating circumstance, that being his criminal history. He further argues that because his prior criminal convictions were nonviolent crimes, consisting almost exclusively of traffic offenses, any enhancement based on this aggravating circumstance was improper.
While the absence of a "history of delinquency or criminal activity" is an expressly permitted mitigating consideration, the existence of a criminal history which is nonviolent is not specifically recognized as a mitigating factor. Mayo v. State, 681 N.E.2d 689 (Ind. 1997). A trial court may accord such matter mitigating weight, but there is no duty to make an affirmative finding expressly negating it as a mitigating circumstance. Id. While Watkins's prior convictions consist mainly of traffic offenses, the pre-sentence investigation report reveals an extensive criminal history, spanning almost two full pages. He has five prior felony convictions as well as several misdemeanors. Thus, we reject Watkins's contention that the trial court improperly included his criminal history as an aggravating circumstance. Furthermore, contrary to Watkins's contention that the trial court identified only one aggravating circumstance, the sentencing order indicates several valid aggravating circumstances including a significant criminal history, past violations of probation, and the sophisticated and dangerous nature of his drug operation. The court need list only one aggravating factor in order to support an enhanced sentence. Love v. State, 741 N.E.2d 789. The trial court did not abuse its discretion in sentencing Watkins.
Watkins also presents a less cogent argument that his sentence was manifestly unreasonable and should be substantially reduced. Although this court has the constitutional authority to revise and review sentences under article VII, section 6 of the Indiana Constitution, we will do so only when the sentence is manifestly unreasonable in light of the nature of the offense and the character of the defendant. Perry v. State, 751 N.E.2d 306; Ind. Appellate Rule 7(B). We have traditionally been reluctant to modify a sentence on appeal, provided that it falls within the statutory boundaries and there is no clear evidence of abuse. Perry v. State, 751 N.E.2d 306.
Watkins has indicated a clear disregard for the law as shown by his extensive criminal history. Furthermore, prior lenient treatment has had no deterrent effect, as Watkins has recently violated his probation, house arrest, and work release. While on probation, Watkins continued to commit other criminal offenses. He has also failed to successfully complete counseling programs for his alcohol and drug problems. Most recently, Watkins has been involved in the use of serious, dangerous chemicals in a sophisticated operation of methamphetamine production and sales. Given the nature of the offense and the character of the defendant, we cannot conclude that the trial court's imposition of the twenty-eight-year sentence was manifestly unreasonable.
3.
At trial, Watkins objected on the basis of hearsay to testimony regarding the contents of a cellular phone conversation where the caller, Watkins's wife, said that the police had gotten the methamphetamine lab in the woods by West Point and to "tell everybody to get the hell out of there, the cops are on the way." Appellant's Appendix at 20. The trial court admitted the statements under Indiana Evidence Rule 801(d)(2)(E), which provides that "a statement made by a co-conspirator of a party during the course and in furtherance of the conspiracy" is not hearsay.
We will reverse a trial court's hearsay ruling only for abuse of discretion, and we will affirm the ruling on any legal basis apparent in the record. See Ross v. State, 676 N.E.2d 339 (Ind. 1996). Under the facts of the instant case, we need not address Watkins's conspiracy arguments because we conclude that the statements made by Watkins's wife were admissible under the excited utterance exception to the hearsay rule. Indiana Evidence Rule 803(2) defines an "excited utterance" as '[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."
For a hearsay statement to be admitted as an excited utterance, three elements must be shown: 1) a startling event occurs; 2) a statement is made by a declarant while under the stress of excitement caused by the event; and 3) the statement relates to the event. Application of these criteria is not mechanical. Rather, . . . the heart of the inquiry is whether the statement is inherently reliable because the declarant was incapable of thoughtful reflection. The statement must be trustworthy under the influence of the particular case. The trial court should focus on whether the statement was made while the declarant was under the influence of the excitement engendered by the startling event.Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996) (citations omitted).
Here, Sherry Watkins, Watkins's wife, made a cellular call in an attempt to reach her husband after discovering that the police had just found the methamphetamine lab in the woods. Detective Schumaker was still present at the lab in the woods conducting investigations near Watkins's car when he heard Watkins's cellular phone ring. He answered the call. At trial, Detective Schumaker testified that the caller was very excited, saying that the police had gotten the lab in the woods by West Point and to "tell everybody to get the hell out of there, the cops are on the way." Appellant's Appendix at 20. Sherry was clearly under the stress of excitement caused by the discovery of the lab in the woods, and her statements relate directly to such event. Under the facts of the case, we conclude that the statements were inherently reliable. As such, the trial court did not err in admitting Sherry's statements.
During trial, the court similarly indicated that the statements could possibly be admitted under the excited utterance exception:
[Defense]:. . . . I object, that's hearsay as to what the caller was saying.
[State]:. . . . Statements made in this case would certainly be in furtherance of the conspiracy and again it's going to show that they were intended to elicit an opportunity to escape and avoid detection and would be in furtherance of the conspiracy because of that. And I think it would be admissible as an exception to that.
Court: And also possibly as an excited utterance. Objection overruled. You may answer.Record at 164.
Judgment affirmed.
BROOK, C.J., and SHARPNACK, J., concur.
APPENDIX B
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precendent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:CHARLES E. WATKINA STEVE CARTER
Bunker Hill, Indiana Attorney General of Indiana
JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CHARLES E. WATKINS, ) ) Appellant-Defendant, ) ) vs. ) No. 79A02-0406-PC-479 ) STATE OF INDIANA, ) ) Appellee-Respondent. ) APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-0301-PC-2 January 21, 2005 MEMORANDUM DECISION — NOT FOR PUBLICATIONNAJAM, Judge
STATEMENT OF THE CASE
Following a jury trial in June 2001, Charles Watkins was convicted of two counts of Dealing in a Schedule II Controlled Substance, as Class B felonies; Conspiracy to Commit Dealing in a Schedule II Controlled Substance, as a Class B felony; and Maintaining a Common Nuisance, as a Class D felony. The trial court also found Watkins to be an habitual offender and sentenced him to a total of twenty-eight years executed, with three years suspended. We affirmed Watkins' convictions on appeal in a Memorandum Decision. See Watkins v. State, Case No. 79A05-0109-CR-415 (Ind.Ct.App. June 18, 2002). Watkins then filed a pro se Petition for Post-Conviction Relief, which he later amended with the assistance of counsel. Following a hearing, the post-conviction relief ("PCR") court denied Watkins relief. Watkins now appeals and presents the following issues for review:
1. Whether Watkins' trial counsel was ineffective.
2. Whether Watkins' appellate counsel was ineffective.
3. Whether Watkins' post-conviction counsel was ineffective.
4. Whether the trial court denied Watkins a full and fair hearing on his petition.
We affirm.
FACTS AND PROCEDURAL HISTORY
This court set forth the relevant facts in our Memorandum Decision as follows:
[F]rom February to May 2001, Watkins, Mike Farrell, and Dale Sanders manufactured methamphetamine in two separate locations on approximately forty to fifty occasions. One location was in the "mushroom hole[,"] a densely wooded area off of County Road 600 West in West Point, Tippecanoe County, Indiana. The second location was the basement, workshop, and trailer at Rod Sanders' residence, located at 5818 Division Road, Tippecanoe County, Indiana. The three men purchased pseudoephedrine pills and lithium batteries at Wal-Mart, Dollar General, and CVS to manufacture methamphetamine. They also purchased Liquid Fire from Lutterlohs Garden Trap and True Value, and stole anhydrous ammonia from farmers' fields and the Co-op in Linden. Watkins and Sanders split the methamphetamine equally, but each gave Farrell a small amount for his assistance in obtaining the items and cleaning up. Both Watkins and Sanders sold and used the methamphetamine.
On May 3, 2001, West Lafayette Police Detectives Nancy Hetrick and Daniel Schumaker, both members of the Tippecanoe County Drug Task Force, met with a confidential informant. Following that meeting, a search was conducted of the "mushroom hole[."] Watkins' methamphetamine lab was discovered. A search warrant was obtained for the residence at 5818 Division Road. Upon execution of the search warrant, the second methamphetamine lab was discovered. Watkins was found by the officers hiding face-down in a pile of debris. He was in possession of .04 grams of methamphetamine. Watkins' vehicle, parked near the camper on the property, contained a fanny pack that held .03 grams of methamphetamine. Several other items were found in Watkins' vehicle: a heavy hose used to remove anhydrous ammonia, safety glasses, a one-half gallon container of Rooto drain cleaner, empty sufadrine boxes, six empty blister packs of pills, orange gloves, Red Devil lye, two cell phones, and a police scanner.Watkins, slip op. at 3-4. Thereafter, the State charged Watkins with nine counts: Counts I and II, Dealing in a Schedule II Controlled Substance; Count III, Possession of a Schedule II Controlled Substance; Count IV, Conspiracy to Commit Dealing in a Schedule II Controlled Substance; Count V, Maintaining a Common Nuisance; Count VI, Possession of Marijuana; Count VII, Reckless Possession of Paraphernalia; Count VIII, Illegal Drug Lab; and Count IX, Habitual Offender. A jury found Watkins guilty of Counts I, II, III, IV, V, and VIII. Watkins waived his right to a jury trial on the habitual offender charge, and the trial court determined him to be an habitual offender. The trial court then entered judgment of conviction on Counts I, II, IV, and V, sentenced him to eighteen years each on Counts I, II, and IV; three years on Count V; and ordered that he serve those terms concurrently. The court then enhanced that total term of eighteen years by ten years as a result of the habitual offender determination, for a total sentence of twenty-eight years. Finally, the court suspended three of those twenty-eight years to probation.
Watkins appealed his convictions and raised three issues for review: (1) whether under the doctrine of amelioration the trial court erred when it refused to apply retroactively certain amendments to the habitual offender statute; (2) whether his sentence was manifestly unreasonable; and (3) whether the trial court abused its discretion when it admitted, over Watkins' hearsay objection, statements his wife had made to a police officer during a cellular telephone conversation. We affirmed Watkins' convictions. See id. at 11.
In January 2003, Watkins filed his pro se PCR petition in which he raised several claims, including that he received ineffective assistance of both trial and appellate counsel. In October 2003, with the assistance of counsel, Watkins filed an amended petition in which he claimed that (1) his trial counsel was ineffective, and (2) his due process rights were violated because the trial court failed to instruct the jury regarding all of the essential elements of the crime of dealing in methamphetamine. Regarding his ineffective assistance of trial counsel claim, Watkins' amended petition alleged in relevant part:
a. Trial counsel failed to conduct pretrial discovery including but not limited to deposing potential witnesses.
b. Trial counsel failed to interview or subpoeana potential witnesses. Witnesses existed whose testimony would have shown Michael Farrell testified against the Petitioner as the direct result of threats against his family made by law enforcement officers. The Petitioner provided the name, addresses, and summary of testimony of these witnesses to trial counsel prior to trial. None of these witnesses were interviewed or called to testify by trial counsel.
c. Trial counsel failed to impeach Michael Ferrell during [cross-examination] regarding his testimony being as a result of the threats against his family made by law enforcement officers.
d. Trial counsel failed to consult with Petitioner prior to trial.
e. Trial counsel failed to investigate facts relevant to the Petitioner's defense including but not limited to that the manufacture of the methamphetamine was for personal use only.
f. Trial counsel failed to file a motion to suppress prior to trial or object during the trial to custodial statements allegedly made [by] the Petitioner after the Petitioner had exercised his right to remain silent in violation of the Fifth Amendment of the United States Constitution and Article I, Section 14 of the Indiana Constitution.
g. Trial counsel failed to file a motion to suppress prior to trial or object during trial to statements allegedly made by the Petitioner's wife to Det[ective] Shuma[k]er in a telephone conversation because the female voice was not properly authenticated to be that of the Petitioner's wife pursuant to Indiana Evidence Rule 901(b).
h. Trial counsel failed to object to the trial court's failure to give, or to tender on Petitioner's behalf, a jury instruction stating all of the specific elements of the crimes of Dealing and Conspiracy to Deal a Schedule II Controlled Substance charged by the State which it was required to prove beyond a reasonable doubt. Specifically, the definition of the manufacture of methamphetamine at the time of these offenses in part stated that it was not a criminal offense to manufacture a controlled substance for personal use and the State must prove beyond a reasonable doubt the manufacture of the methamphetamine was not for personal use.
Appellant's App. at 65-67. Regarding his due process claim, Watkins alleged that the trial court violated his due process rights by failing to instruct the jury that the State was required to prove beyond a reasonable doubt that Watkins' manufacturing of methamphetamine was not for personal use.
The PCR court conducted a hearing on Watkins' petition in January 2004. Watkins and his trial counsel both testified at that hearing. Watkins also submitted several exhibits, including an Affidavit of Trent Smith, who was a cellmate of Michael Farrell; a copy of Watkins' appellate brief; a copy of this court's Memorandum Decision; a copy of the State's charging informations; a copy of the trial court's preliminary and final jury instructions; and a copy of the trial court's sentencing order. At the conclusion of the evidence, Watkins' PCR counsel argued that Watkins' appellate counsel was also ineffective for failing to raise an issue of fundamental error on direct appeal, namely, that the jury was not instructed that the State had to prove that Watkins was not manufacturing methamphetamine for personal use. Both Watkins and the State submitted proposed findings of fact and conclusions of law. On April 14, 2004, the PCR court signed the State's proposed findings of facts and conclusions of law, which did not address Watkins' appellate counsel claim. Watkins now appeals.
DISCUSSION AND DECISION Standard of Review
Defendants who have exhausted the direct appeal process may challenge the correctness of their convictions and sentences by filing a post-conviction petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied. Post-conviction proceedings are civil proceedings, and a defendant must establish his claims by a preponderance of the evidence. Id. Because the defendant is now appealing from a negative judgment, to the extent his appeal turns on factual issues, he must convince this court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the PCR court. Id. In other words, the defendant must convince this court that there is no way within the law that the court below could have reached the decision it did.Id. (emphasis original). We do not defer to the PCR court's legal conclusions, but do accept its factual findings unless they are "clearly erroneous." Id.
In this case, the trial court entered the following general finding explaining certain facts relevant to Watkins' petition:
1. On the night of May 3, 2001, officers from multiple police agencies, headed up by detectives assigned to the Tippecanoe County Drug Task Force, served a search warrant on 5818 Division Road, West Lafayette, Indiana, County of Tippecanoe. Police suspected Rodney and Jennifer Sanders, who rented a house and surrounding property at that address, were running a methamphetamine manufacturing lab with Rodney's brother Dale and his wife Laurie, as well as several others. As police entered the property, Charles Watkins (hereinafter "Petitioner") was caught trying to flee [to] a camper trailer parked near the house. Inside the camper, police discovered evidence of an operational methamphetamine lab. Petitioner was arrested and led down a lane toward a police cruiser standing by to transport him to jail. Dan Shumaker, a Lafayette Police Department detective and member of the drug task force, was walking up the lane as Petitioner was being led to the cruiser. In passing, Detective Shumaker asked Petitioner if he would mind cooperating with the investigation. Petitioner declined to speak with police at that time, though he did not invoke his right to counsel, and Detective Shumaker immediately moved on to another suspect, Mike Ferrell, who was being led down the lane behind Petitioner. Some time later, Petitioner was given an opportunity to walk back up the lane to restrain his dog, which was causing a disturbance. When Petitioner returned down the lane, Freddie Davis, a Purdue University Police Department detective and member of the drug task force, read Petitioner his Miranda warnings again and asked if Petitioner would like to answer some questions. This time, Petitioner agreed. He admitted to using methamphetamine but denied knowing how to make it. Petitioner did admit, however, that he had watched others make the drug before and was involved in supplying various precursors to the Sanders family and others who would then manufacture methamphetamine and give petitioner some of the finished product in exchange for his assistance. It has not been established exactly how much time elapsed between the moment when Petitioner declined to speak with Detective Shumaker and when Detective Davis began asking questions of Petitioner. When Petitioner was searched incident to arrest and incarceration, he was found to be in possession of methamphetamine, and marijuana and drug paraphernalia were found in Petitioner's car. After Petitioner was transported from the scene, Detective Shumaker heard a cell phone ringing in Petitioner's car. When Detective Shumaker answered the phone, the female caller asked if Chuck was there and said she wanted to warn everybody there that the police were coming with a warrant and they should all get out of there. When Detective Shumaker identified himself as a police officer and asked for the caller's name, she identified herself as Sherry Watkins.
Appellant's App. at 16-17. We will address other findings of fact and any relevant conclusions of law as necessary throughout this decision.
Issue One: Trial Counsel
Watkins asserts that the PCR court erred when it concluded that his trial counsel was not ineffective. Specifically, he maintains that his trial counsel rendered ineffective assistance on the following grounds: (1) counsel failed to file a motion to suppress or object at trial to statements Watkins made to police in violation of his constitutional rights; (2) counsel failed to interview and/or subpoena certain witnesses who had information relevant to the impeachment of Michael Farrell, one of the State's primary witnesses; (3) counsel failed to file a motion to suppress or object at trial to a statement his wife allegedly made to Detective Shumaker during a cell phone conversation; and (4) counsel failed to object to the trial court's final jury instructions, and did not tender his own instruction, regarding the State's burden to prove that Watkins did not manufacture methamphetamine for personal use. We address his contentions in turn.
Watkins also includes a paragraph in his brief contending that his trial counsel failed to "investigate and consult" with Watkins prior to trial regarding his defense. Brief of Appellant at 10. But he has failed to cite any authority in support of that particular claim and, therefore, has waived that contention on appeal. See Bartley v. State, 800 N.E.2d 193, 196 (Ind.Ct.App. 2003) (stating party's failure to provide proper citation to authority waives argument for purposes of appellate review).
We review claims of ineffective assistance of counsel under the two components set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show that counsel's performance was deficient. Id. at 687. This requires a showing that counsel's representation fell below an objective standard of reasonableness and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment. See id. at 687-88. Second, the defendant must show that the deficient performance prejudiced him. See id. at 687. 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 have been different. See id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
In addition, counsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. Blanchard v. State, 802 N.E.2d 14, 34 (Ind.Ct.App. 2004) (citing Saylor v. State, 765 N.E.2d 535, 549 (Ind. 2002), sentence vacated on other grounds, 808 N.E.2d 646 (Ind. 2004)). Consequently, isolated poor strategy or bad tactics do not necessarily amount to ineffective assistance of counsel unless, taken as a whole, the defense was inadequate. Id. (citing Brown v. State, 698 N.E.2d 1132, 1139 (Ind. 1998)). Furthermore, we will not speculate as to choosing a trial strategy which, at the time and under the circumstances, seems best. Id. (quotations and citation omitted).
A. Watkins' Statements to Police
Watkins first asserts that his trial counsel was ineffective because he failed to file a motion to suppress or object at trial to the admission of statements he made to police as the officers were executing the search warrant for the Division Road property. "Where ineffective assistance of counsel is alleged for the failure to move to suppress or to object to the defendant's statement, we will find no deficient performance where no showing is made that any such motion or objection would have resulted in the suppression of the statement." Shields v. State, 699 N.E.2d 636, 640 (Ind. 1998).Initially, the PCR court entered the following relevant factual finding:
6. Defense counsel did not move to suppress the statements of Petitioner elicited by Detective Davis at the scene several minutes after Petitioner had declined to answer questions by Detective Shumaker. Defense counsel testified at trial of this cause that he believed there were no grounds to suppress the statement because Petitioner merely declined to answer questions and did not invoke his right to counsel. The Record of the criminal trial bears out th[e] fact that Petitioner never invoked his right to counsel, nor is there any evidence that police used coercive or deceitful tactics, threatened or harmed Petitioner in any way, or sought to wear Petitioner down in an attempt to overcome his earlier refusal. To the contrary, it is clear Petitioner was able to express his own will and carry it out, to a certain extent, even though he was under arrest at the time, as evidenced by the fact that he was given permission to return to the scene of the crime and assist in the restraint of his dog.
Appellant's App. at 18-19. The PCR court went on to conclude that Watkins' argument on this issue "fails as a matter of law." Id. at 24. Specifically, the court rejected Watkins' characterization of the holding in Michigan v. Mosley, 423 U.S. 96 (1975), and determined that he had failed to prove that "the police did not scrupulously honor his right to remain silent." Id. We agree with the PCR court.
The Fifth Amendment provides that "No person . . . shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law. . . ." Haviland v. State, 677 N.E.2d 509, 514 (Ind. 1997). The contours of a defendant's right to remain silent were delineated in Miranda v. Arizona, 384 U.S. 436 (1966), andMichigan v. Mosley, 423 U.S. 96 (1975). Id. In Allen v. State, 686 N.E.2d 760, 773-74 (Ind. 1997), cert. denied, our supreme court explained Mosley in relevant part as follows:
In Michigan v. Mosley, . . . the Court held that a confession obtained in an interrogation initiated some time after a suspect cut off earlier questioning did not violate [Miranda]. Evidence obtained in this way may be admissible even though a subsequent interview was initiated by an officer, as long as the police scrupulously honor the defendant's right. The Court reasoned that [Miranda] does not forever prohibit law enforcement officials from speaking to a suspect once she decides not to speak; room is left for the officer to inquire whether the suspect has changed her mind and decided to speak. When an officer ceases questioning at the time a suspect indicates she is not willing to answer and, prior to any subsequent questioning, the suspect is again advised of her rights, the suspect's rights have been respected if she then decides to speak.
(Citations omitted). Additionally, "[c]omplete and indefinite cessation of questioning is required only when the accused invokes his right to counsel." Borkholder v. State, 544 N.E.2d 571, 574 (Ind.Ct.App. 1989).
Here, Detective Shumaker testified at trial that after he had arrested Watkins, he asked him if he wanted to talk and "give [him] the opportunity to cooperate with us." Trial Transcript at 170. Watkins told the detective that he did not want to talk to him at that time. Detective Shumaker then "moved on" to Farrell, who had also been arrested. Id. Thus, Watkins did not invoke his right to counsel, nor did he express an absolute refusal to speak with police at some point in the future.
Thereafter, Watkins' "dog was creating a little havoc," and the officers at the scene gave him the opportunity to secure the dog.Id. at 219. Then, Detective Davis approached Watkins, advised him of his Miranda warnings, and asked if he wanted to talk. Watkins indicated that he understood his rights and then told the detective in part that he used methamphetamine but did not know how to make it. Watkins presented no evidence at the PCR hearing to show that his statements were not made voluntarily or were coerced in any way. In fact, Watkins has not argued that Detective Davis was aware of Detective Shumaker's prior attempt to talk with Watkins. We conclude that Watkins failed to show that Detective Davis failed to scrupulously honor his right to remain silent.
Still, Watkins asserts that only thirty minutes elapsed between when he refused to speak with Detective Shumaker and when Detective Davis read him Miranda warnings and asked if he would talk. He suggests that thirty minutes was an insufficient period of time and that his right to remain silent was therefore violated. But in support of his contention that only thirty minutes had elapsed, he relies on police reports which were not presented to the PCR court. In addition, even assuming only thirty minutes had elapsed, he still has not presented any argument to show how Detective Davis failed to scrupulously honor his right to remain silent. Therefore, Watkins has not established that the PCR court's conclusion is clearly erroneous.
B. Impeachment of Farrell
Next, Watkins maintains that his trial counsel was ineffective for failing to investigate and/or subpoena certain witnesses who could have testified that Farrell, one of the State's prime witnesses against Watkins, had been threatened by police to obtain his cooperation. Specifically, Watkins' argument on this issue is as follows:
The only evidence that Watkins had delivered any of the methamphetamine was provided through the testimony of Michael Farrell, a co-defendant, who testified that "yes, [Watkins has] mentioned he had gotten rid of some . . . sold it[.]" When questioned [on cross-examination,] Farrell readily admitted he was testifying in hope of receiving a more lenient sentence. Had counsel subpoenaed the witnesses that Watkins provided the names of, the jury would have been informed that Farrell was threatened by law enforcement to obtain his testimony. Failure to investigate material witnesses was deficient performance and ineffective assistance of counsel. Dowdell v. State, 720 N.E.2d 1146 (Ind. [Ct.] App. 1999).
Brief of Appellant at 13 (citations to Appellant's Appendix omitted). The PCR court rejected Watkins' claim in relevant part as follows:
17. Petitioner's specific contention that he received ineffective assistance of counsel because defense counsel did not impeach a prosecution witness based upon alleged threats made by the State to procure his testimony fails as a matter of law. In fact, defense counsel did impeach the witness, Mike Farrell, based upon Farrell's belief he would receive leniency from the State in exchange for his cooperation. The Court finds Petitioner's distinction as to how to impeach the witness is nothing more than an invitation to second[-]guess defense counsel's strategy. . . . Furthermore, the Court finds no prejudice insofar as Petitioner has failed to prove that the State could not have successfully rebutted any such impeachment testimony had it been offered. Therefore, petitioner has failed to carry his burden of proving his ineffective assistance of counsel claim, insofar as it is based on failure to impeach.
Appellant's App. at 25-26.
"Allegations that counsel failed adequately to consult with the [defendant] or failed to investigate issues and interview witnesses do not amount to ineffective assistance absent a showing of what additional information may have been garnered from further consultation or investigation and how that additional information would have aided in the preparation of the case." Coleman v. State, 694 N.E.2d 269, 274 (Ind. 1998). Here, Watkins tendered the Affidavit of Trent Smith to the PCR court, and in that affidavit, Smith stated in relevant part that: (1) he was incarcerated in the Tippecanoe County Jail with Farrell in 2001; and (2) Farrell told him that police had threatened to file criminal charges against his girlfriend if he refused to testify against his co-defendants.
Still, Watkins' claim on this issue fails for two reasons. First, his trial counsel testified at the post-conviction hearing that he was aware of allegations that police may have threatened to prosecute Farrell's girlfriend if Farrell chose not to cooperate. Although his counsel did not specifically recall the name "Trent Smith," counsel had knowledge of the very information Watkins now claims he had failed to uncover before trial. Thus, Watkins has not demonstrated that his counsel was ineffective to the extent that he asserts his counsel should have interviewed certain witnesses to discover the allegations that police had threatened Farrell.
In addition, to the extent that Watkins contends that his counsel was ineffective for failing to question Farrell about the alleged police threats, we agree with the PCR court that that argument amounts to an attack on counsel's trial strategy. As the PCR court pointed out, counsel did attempt to impeach Farrell's testimony by questioning him about his hopes to obtain leniency in exchange for his testimony. The decision not to further question Farrell about unsubstantiated threats is a reasonable strategic decision under the circumstances. See Blanchard, 802 N.E.2d at 34. Watkins has not shown that the PCR court's conclusion on this issue is clearly erroneous.
The following colloquy occurred at the post-conviction hearing between Watkins' post-conviction counsel and his trial counsel:
Q: Is there any reason why you would not have asked Mr. Farrell on cross if his testimony was pursuant to any type of perceived threat?
A: No, unless he just said it. I don't know.
PCR Transcript at 18. Although post-conviction counsel asked if there was any reason why counsel would not have asked about the perceived threat, trial counsel's answer suggests that he interpreted the question as whether there was any reason why hewould have asked Farrell about the perceived threat. In other words, when read in context, trial counsel stated that there was no reason he would have asked Farrell about the threats "unless he just said it." Id.
C. Wife's Statements
Watkins also asserts that his trial counsel was ineffective because he failed to file a motion to suppress or object at trial to the admission of certain statements his wife made to Officer Shumaker after the officer answered Watkins' cellular telephone. Specifically, while his counsel objected to the admission of the statements as hearsay, Watkins claims that his counsel should have objected on different grounds, namely, lack of foundation of the caller's identity. "When a claim of ineffective assistance of counsel is based on counsel's failure to object, the [petitioner] must show that a proper objection would have been sustained."Pinkins v. State, 799 N.E.2d 1079, 1094 (Ind.Ct.App. 2003),trans. denied. "Additionally, a petitioner must demonstrate that a failure to object resulted in prejudice to him." Id.
Our supreme court "has long required that a caller's identity be established as a foundation for the admission of the content of a telephone call." King v. State, 560 N.E.2d 491, 494 (Ind. 1990). The identity of the caller need not be proved beyond a reasonable doubt; identity of the declarant may be established by circumstantial evidence; and conflicts in the proof of the identity go to the weight of the evidence and not admissibility.Id. at 494-95. As the court in King explained:
[If] a witness has received . . . a telephone call out of the blue from one who identified himself as "X," this is not sufficient authentication of the call as in fact coming from X. The requisite additional proof may take the form of testimony by the witness that he is familiar with X's voice and that the caller was X. Or authentication may be accomplished by circumstantial evidence pointing to X's identity as the caller, such as if the communication received reveals that the speaker had knowledge of facts that only X would know.Id. at 495 (quoting McCormick on Evidence, § 226 at 697 (3d ed. 1984)) (emphasis added).
Here, Detective Shumaker testified that Watkins' cell phone "had been ringing throughout the evening" that the officers executed the search warrant at the Division Road residence. Trial Transcript at 164. He stated further that at approximately 11:00 p.m. that night as he was showing a deputy prosecutor around the property, the cell phone rang and he answered it. He stated that the caller asked for "Chuck," and then he replied that Chuck was on the other side of the trailer. Id. At that point, the caller, who was very excited, said that she had just seen on television that police had discovered the methamphetamine lab in the woods. The caller went on to say that police were obtaining "a search warrant for a camper" and further said "to tell everybody to get the hell out of there[;] the cops are on the way." Id. at 165. Next, Detective Shumaker testified that he identified himself to the caller and that the caller then identified herself as Sherry Watkins.
Following King, we agree with Watkins that had Detective Shumaker stated only that the caller had identified herself as Sherry Watkins, an insufficient foundation would have been established. But as we have stated, authentication may be accomplished by circumstantial evidence. See King, 560 N.E.2d at 495. And Detective Shumaker's other testimony regarding the caller's statements revealed that the caller had intimate knowledge of facts that only someone close to Watkins would know.See id. We conclude that Detective Shumaker's testimony as a whole was sufficient to establish a foundation for the admission of the content of the cell phone conversation. Therefore, Watkins has not established that had his trial counsel objected to the admission of his wife's statements for lack of foundation, such an objection would have been sustained.
D. Jury Instructions
Watkins' final ineffective assistance of trial counsel claim is that his counsel was ineffective for failing to object to the trial court's final jury instructions, and did not tender his own instruction, regarding the State's burden to prove that Watkins did not manufacture methamphetamine for personal use. To establish his trial counsel's failure to object to the jury instructions constitutes ineffective assistance, Watkins must first prove that a proper objection would have been sustained.See Dawson v. State, 810 N.E.2d 1165, 1177 (Ind.Ct.App. 2004), trans. denied. Moreover, he has to prove that trial counsel's failure to object was unreasonable and resulted in sufficient prejudice such that there exists a reasonable probability that the outcome would have been different. See id.
As we have explained, the State charged Watkins in part with dealing in a schedule II controlled substance by knowingly or intentionally manufacturing methamphetamine. See Ind. Code § 35-48-4-2(a)(1)(A). At the time of Watkins' trial in June of 2001, Indiana Code Section 35-48-1-18 defined "manufacture" in relevant part as:
(1) the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. It does not include the preparation or compounding of a controlled substance by an individual for his own use[.]
(Emphasis added). Although the legislature amended that statute to remove the language regarding the manufacturing of a controlled substance for one's own use, that amendment did not take effect until July 1, 2001. Watkins' trial concluded on June 29, 2001, which was just a few days before the amended statute took effect.
In its final instructions, the trial court provided the jury with the statutory elements of dealing in a schedule II controlled substance. See Appellant's App. at 268. Those instructions did not include the statutory definition of "manufacture," and Watkins' trial counsel did not tender an instruction regarding the definition of "manufacture." Watkins now asserts that his trial counsel was ineffective for failing to object to the court's final instructions and for failing to tender his own instruction that set forth the applicable definition of "manufacture." We cannot agree.
Initially, when asked at the post-conviction hearing whether there was any reason trial counsel did not tender an instruction regarding the definition of "manufacture," counsel stated that he did not "recall that being what Mr. Watkins was saying . . . as far as it being that [the methamphetamine] was for personal use." PCR Transcript at 20. Trial counsel further explained that Watkins had told him that he was present on the property that night to pick up a mower and that he just happened to be present when the officers executed the search warrant. Indeed, Watkins' defense at trial was that he was merely present on the premises, but he was not involved in the manufacturing process. Because Watkins did not present a defense that he had manufactured methamphetamine merely for his own personal use, it was reasonable for his counsel to not tender an instruction regarding personal use, and likewise, counsel had no reason to object to the trial court's final instructions on those grounds. See Harrison v. State, 707 N.E.2d 767, 707 (Ind. 1999) (concluding in part that trial counsel was not ineffective for failing to present evidence to show no arson occurred because that would have been inconsistent with his defense theory that he did not commit charged crimes).
To the extent that Watkins contends that his trial counsel was ineffective for failing to raise the "personal use" exception as a defense, that claim also lacks merit. As the PCR court noted, at the time of Watkins' trial in June 2001, no case law existed interpreting the "personal use" language under Indiana Code Section 35-48-1-18. Indeed, the first case to address the issue was Hatcher v. State, 762 N.E.2d 170, 172-73 (Ind.Ct.App. 2002), trans. denied, which was not handed down until late January 2002. In Hatcher, the majority rejected the defendant's suggestion that "manufacture," as defined in Indiana Code Section 35-48-1-18 prior to the July 1, 2001 amendment, requires the State to prove that the methamphetamine was not manufactured for personal use. Specifically, we stated that the "legislature could not have intended to enact a statute allowing one to be subjected to criminal liability for possession of the ingredients of methamphetamine, but to be excluded from liability if the ingredients were used to manufacture the finished product." Id. at 173. Ultimately, we observed that to conclude otherwise would "lead to an absurd result." Id. But see id. at 174-75 (Sullivan, J., concurring in result).
Still, Watkins directs us to two opinions decided afterHatcher, namely, Bradley v. State, 765 N.E.2d 204 (Ind.Ct.App. 2002), and Poe v. State, 775 N.E.2d 681 (Ind.Ct.App. 2002). In Bradley, 765 N.E.2d at 210-11, another panel of this court disagreed with the majority opinion's interpretation of Indiana Code Section 35-48-1-18 and, following Judge Sullivan's separate opinion in Hatcher, concluded that the clear language of that statute created an exemption for those who prepare or compound a controlled substance for personal use. In Poe, 775 N.E.2d at 685, yet another panel of this court followedBradley's determination that the definition of "manufacture" under Indiana Code Section 35-48-1-18 had created a "personal use" exception. But, again, none of those cases had been decided at the time of Watkins' trial, and we will not find trial counsel ineffective for failing to anticipate future decisions from this court. In other words, because the decisions in Bradley andPoe were not available to trial counsel in June 2001, counsel was not ineffective for failing to raise a "personal use" exception defense at trial, especially when Watkins had told counsel that he was not involved in manufacturing and was present when the officers executed the search warrant for reasons unrelated to drug activity. In sum, Watkins has not demonstrated that the PCR court's conclusion that his trial counsel was not ineffective is clearly erroneous.
Issue Two: Appellate Counsel
Watkins maintains that his appellate counsel was ineffective for failing to argue on appeal that the trial court's failure to instruct the jury on the applicable definition of "manufacture" amounted to fundamental error. Initially, we note that Watkins did not include in his amended PCR petition a claim that his appellate counsel was ineffective. Instead, he raised that claim for the first time at the post-conviction hearing. Further, the PCR court did not issue findings of fact and conclusions of law on his ineffective assistance of appellate counsel claim.
Indiana Post-Conviction Rule 1(6) provides in part that the PCR court "shall make specific findings of fact, and conclusions of law on all issues presented, whether or not a hearing is held." However, the PCR court's failure to enter specific findings of fact and conclusions of law in ruling on a petition for post-conviction relief is not reversible error when the issues are sufficiently presented for review and addressed by the parties. See Jackson v. State, 676 N.E.2d 745, 750 (Ind.Ct.App. 1997) (citing Herman v. State, 526 N.E.2d 1183, 1184 (Ind. 1988), and Lowe v. State, 455 N.E.2d 1126, 1128 (Ind. 1983)). Here, both parties have sufficiently presented and addressed Watkins' ineffective assistance of appellate counsel claim, and we conclude that the PCR court's failure to comply with Post-Conviction Rule 1(6) on this single issue is not reversible error. We therefore address the merits of Watkins' assertion that his appellate counsel was ineffective.
The standard of review for a claim of ineffective assistance of appellate counsel is essentially the same as for trial counsel in that the defendant must show that appellate counsel was deficient in his performance and that the deficiency resulted in prejudice.Bieghler v. State, 690 N.E.2d 188, 192-93 (Ind. 1997) (citingStrickland, 466 U.S. at 668), cert. denied. Ineffective assistance of appellate counsel claims generally fall into three basic categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Id. 193-94. To show that counsel was deficient for failing to raise an issue on direct appeal, i.e., waiving the issue, the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential. Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002).
Our supreme court has adopted the following test to evaluate the performance prong of appellate counsel's performance: (1) whether the unraised issues are significant and obvious from the record; and (2) whether the unraised issues are "clearly stronger" than the raised issues. Bieghler, 690 N.E.2d at 194;Timberlake v. State, 753 N.E.2d 591, 606 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). If that analysis demonstrates deficient performance by counsel, the court then examines whether "the issues which . . . appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial." Bieghler, 690 N.E.2d at 194 (citation omitted). Further, the reviewing court must:
. . . consider the totality of an attorney's performance to determine whether the client received constitutionally adequate assistance[,] . . . [and] should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made.Id. Ineffectiveness is very rarely found in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal. Id. at 193 (citation omitted). One reason for this is that the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel. Id.
We have already determined that Watkins' trial counsel was not ineffective for failing to object to the jury instructions or to tender his own instruction regarding "personal use" of methamphetamine because (1) such strategy would have been inconsistent with the defense theory, and (2) no case law existed at the time of Watkins' trial which clarified the personal use language contained in the applicable definition of "manufacture." That second rationale applies equally to Watkins' claim that his appellate counsel was ineffective. Indeed, appellate counsel filed Watkins' appellate brief on December 11, 2001. As we have explained, none of the cases from this court concerning the meaning of the personal use language contained in Indiana Code Section 35-48-1-18 were decided until 2002. Appellate counsel has no more of an ability to predict decisions from this court than trial counsel. Based on the precedent available at the time appellate counsel filed Watkins' appellate brief, we cannot conclude that the "personal use" issue was significant and obvious from the record or that appellate counsel was deficient for failing to raise that issue on direct appeal. See Bieghler, 690 N.E.2d at 194.
In addition, even had those cases been decided at the time of his appeal, Watkins ignores the fact that we issued split decisions regarding whether, under the former definition of "manufacture," the State was required to prove that a defendant did not manufacture methamphetamine for personal use. And none of those cases held that the trial court's failure to sua sponte instruct the jury regarding the definition of "manufacture" amounts to fundamental error. Given the confusion over this particular point of law, Watkins has failed to demonstrate that a claim of fundamental error would have been successful, and, thus, he has not shown that the "personal use" issue is "clearly stronger" than the three issues appellate counsel raised on direct appeal. See id. We conclude that Watkins' ineffective assistance of appellate counsel claim must fail.
Issue Three: PCR Counsel
Watkins next asserts that his PCR counsel was ineffective. In particular, Watkins claims that his counsel was defective because he failed to include a claim of ineffective assistance of appellate counsel in his amended PCR petition. We cannot agree.
We note that in Bahm v. State, 789 N.E.2d 50, 60 n. 10 (Ind.Ct.App. 2003), clarified on other grounds on reh'g, 794 N.E.2d 444, trans. denied, we determined that a petitioner may raise a claim of ineffective assistance of PCR counsel for the first time on appeal from the denial of his PCR petition.
The right to counsel in a post-conviction proceeding is guaranteed neither by the Sixth Amendment of the United States Constitution nor Article I, Section 13 of the Indiana Constitution. Daniels v. State, 741 N.E.2d 1177, 1190 (Ind. 2001). Accordingly, the performance of post-conviction counsel is reviewed under the highly deferential standard set forth in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). See id. As the court inBaum explained, Indiana courts should review claims of ineffective assistance of post-conviction counsel under a standard that is "responsive more to the due course of law or due process of law principles which are at the heart of the civil post-conviction remedy." 533 N.E.2d at 1201. "[I]f counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court, it is not necessary to judge his performance by the rigorous standard set forth in Strickland[.]" Id.
Here, Watkins' contention that his PCR counsel was ineffective lacks merit because his PCR counsel filed an amended petition, appeared with Watkins at the hearing, presented witnesses on Watkins' behalf, and submitted multiple exhibits in support of Watkins' claims. Watkins' PCR counsel also submitted thorough proposed findings and conclusions which included a section regarding his ineffective assistance of appellate counsel claim. That PCR counsel failed to include an ineffective assistance of appellate counsel claim in the amended petition is of no import because counsel was nevertheless able to present that claim at the PCR hearing. Indeed, PCR counsel articulated the grounds for his ineffective assistance of appellate counsel claim to the PCR court, and even though the PCR did not issue specific findings and conclusions on that claim, we have reviewed the merits of that claim on appeal. In sum, Watkins has not met the difficult burden of showing that his PCR counsel was ineffective.
Issue Four: Fair Hearing
Finally, Watkins claims that the PCR court denied him a fair hearing by signing off on the State's proposed findings of fact and conclusions of law. In support, Watkins cites to a single, isolated sentence in Prowell v. State, 741 N.E.2d 704, 709 (Ind. 2001), in which our supreme court stated that when a trial court adopts a party's proposed findings, "there is an inevitable erosion of the confidence of an appellate court that the findings reflect the considered judgment of the trial court." However, Watkins ignores the discussion in Prowell which precedes that sentence:
It is not uncommon for a trial court to enter findings that are verbatim reproductions of submissions by the prevailing party. The trial courts of this state are faced with an enormous volume of cases and few have the law clerks and other resources that would be available in a more perfect world to help craft more elegant trial court findings and legal reasoning. We recognize that the need to keep the docket moving is properly a high priority of our trial bench. For this reason, we do not prohibit the practice of adopting a party's proposed findings.Id. at 708-09.
In support of his contention that he was denied a fair hearing, Watkins again points out that the PCR court's findings and conclusions do not address his ineffective assistance of appellate counsel claim. But that single oversight does not lead to the conclusion that the PCR court failed to fully consider Watkins' claims. Indeed, although the findings and conclusions did not address that claim, it was the PCR court that clarified during the PCR hearing that PCR counsel was, in fact, raising an ineffective assistance of appellate counsel argument. Therefore, we conclude that Watkins received a full and fair hearing on his petition.
CONCLUSION
The PCR court's conclusion that Watkins' trial counsel was not ineffective is not clearly erroneous, and Watkins has not demonstrated ineffective assistance of appellate counsel. In addition, Watkins' PCR counsel was not defective, and he received a fair hearing on his PCR petition.
Affirmed.
KIRSCH, C.J., and VAIDIK, J., concur.