Opinion
No. 49A04-1008-PC-547
08-08-2011
JEROME WILLIAMS Appellant-Petitioner, v. STATE OF INDIANA Appellee-Respondent.
APPELLANT PRO SE : JEROME WILLIAMS Michigan City, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana MICHAEL GENE WORDEN 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.
APPELLANT PRO SE:
JEROME WILLIAMS
Michigan City, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION 4
The Honorable Lisa F. Borges, Judge
Cause No. 49G04-0003-PC-053499
MEMORANDUM DECISION - NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Petitioner, Jerome Williams (Williams), appeals the post-conviction court's denial of his petition for post-conviction relief.
We affirm.
ISSUES
Williams raises two issues on appeal, which we restate as follows:
(1) Whether Williams' trial counsel was ineffective by failing to raise the argument that Williams acted in self-defense; and
(2) Whether Williams' appellate counsel was ineffective when counsel failed to raise the argument that the trial court abused its discretion when it refused to appoint Williams new trial counsel.
FACTS AND PROCEDURAL HISTORY
We adopt this court's statement of facts as set forth in our opinion issued in Williams' direct appeal, Williams v. State, 782 N.E.2d 1039, 1044-45 (Ind. Ct. App. 2003), trans. denied (internal citations omitted):
On December 17, 1999, Frank Townsend (Townsend) was using his car to provide taxi services to earn extra money for the holidays. At approximately 11:00 p.m., Williams and his cousin, Cleve Williams (Cleve), left a friend's house and walked to a gas station. At the gas station, Williams used a payphone to call a cab. Both Williams and Cleve had handguns; Cleve had received one earlier that day from Williams. When Townsend arrived at the gas station, Williams sat in the front seat and Cleve sat in the back seat. Williams told Townsend to keep his hands on the steering wheel and drive.
A few minutes later, the car stopped near the intersection of North Beville and Coyner. Williams' and Cleve's aunt lived across the street from that location. Almost immediately after the car stopped, shooting started from
the front seat area of the car. Cleve then pulled out his gun and started shooting. When Cleve stopped shooting, he got out of the car through the back passenger's window and ran to his aunt's house. A few minutes after Cleve reached his aunt's house, Williams also entered his aunt's house and was bleeding. Cleve then left and went to his uncle's house.
Indianapolis police officer Brian Bethel (Officer Bethel) was patrolling the area of Brookside Parkway in Indianapolis at around 11:00 p.m. Initially, when Officer Bethel drove through the intersection of Beville and Coyner, he did not observe anything unusual. When he drove through a few minutes later at 11:16 p.m., Officer Bethel saw a car sitting in the road facing northeast on Coyner. The headlights of the vehicle were on, the car was running, and there was glass broken out of the driver's side window. Officer Bethel stopped to investigate and observed a person slumped in the driver's seat. As he approached the car, Officer Bethel saw that several of the windows had been broken out, all of the car's doors were closed, and that the man, who was later identified as Townsend, in the driver's seat appeared to be unconscious. Townsend had blood on him, and a handgun was lying a few inches away from his hand.
Officer Bethel moved the handgun for safety reasons and called in for backup. At that time, a woman came from 2214 Coyner and told Officer Bethel that there was another person shot inside the house. Another officer arrived at the scene and went with the woman to check on the person inside the house. Officer Bethel then returned to Townsend and noticed that he had stopped breathing. Officer Bethel pulled Townsend out of the car to assist him. The car began to move, so Officer Bethel quickly put the car in park. When Officer Bethel returned to Townsend, he was breathing again. The ambulance arrived shortly and took care of Townsend. Officer Bethel then went to the woman's house and saw Williams lying on the floor bleeding. Another ambulance arrived and took care of Williams.
Indianapolis Police Lieutenant Mark Rice (Lieutenant Rice) arrived at Wishard Hospital at 11:52 p.m., in response to a call regarding two people who had been shot at Beville and Coyner. Lieutenant Rice first checked on Townsend, who was the most critically injured. Townsend was being treated by the emergency room personnel. He had an oxygen mask over his mouth and had chest tubes inserted in his chest. Lieutenant Rice asked Townsend what had happened, and Townsend told him that two young men had tried to rob him. Townsend stated that one of the men had been in the front seat, and one had been in the back seat. He told Lieutenant Rice that he knew that the man in the front seat had shot him, and he was possibly shot by the man in the
back seat. The two men had also asked Townsend how much money he had. Townsend stated that he had a gun under his right leg and fired before the man in the front seat had. Townsend told Lieutenant Rice that he had picked up the two men at 1105 Jefferson.
Lucille Townsend (Lucille), Townsend's wife, also arrived at the hospital at approximately 11:45 p.m. and reached the hospital about thirty minutes after receiving the notification. When Lucille saw her husband, he was on a gurney in the emergency room and was in a lot of pain. There was blood on the floor and the bed, and Townsend had tubes and IVs sticking out of his body. Townsend told Lucille that he had picked up two young men at 10th and Jefferson. He stated that when the men entered the car they had their guns drawn, and they tried to rob him. Townsend said that he had pulled out his own gun, but it had jammed when he fired it.
On January 19, 2000, Townsend underwent major surgery, and his gallbladder was removed. For part of that hospitalization Townsend had a trach tube inserted to assist him with breathing. On March 4, 2000, Townsend was in pain and was disoriented. He had an elevated fever and high white blood cell count. On March 5, 2000, Townsend, while sitting in a chair, went into cardiac arrest when his trach tube became blocked by mucous. He did not recover from the lack of oxygen to his brain, and he was taken off of life support on March 8.
On March 31, 2000, the State filed an Information charging Williams with murder, a felony; attempted robbery, as a Class A felony; carrying a handgun without a license, as a Class A misdemeanor; and dangerous possession of a handgun, as a Class A misdemeanor. On October 22-24, 2001, a jury trial was conducted. At the close of the evidence, the jury found Williams guilty of murder, attempted robbery, and carrying a handgun without a license. The trial court merged the attempted robbery and carrying a handgun without a license convictions into the murder conviction and sentenced Williams to sixty-five years in the Department of Correction. Williams appealed and on February 7, 2003, the court of appeals affirmed the trial court's decision in Williams v. State, 782 N.E.2d 1039 (Ind. Ct. App. 2003), trans. denied. In his direct appeal, Williams raised five issues: (1) whether the trial court abused its discretion when it allowed two witnesses to testify to what the victim told them in the emergency room after the shooting; (2) whether the trial court abused its discretion when it allowed the medical examiner to testify as to why some of the victim's organs were not harvested; (3) whether the trial court abused its discretion by reading the jury a final instruction referring to accomplice liability; (4) whether there was sufficient evidence to support Williams' conviction for murder; and (5) whether Williams' sentence was inappropriate in light of the nature of the offense and the character of the offender.
On December 1, 2003, Williams filed his initial petition for post-conviction relief, but he was permitted to withdraw that petition without prejudice seventeen days later. On June 23, 2009, Williams filed the current amended petition for post-conviction relief. On August 5, 2009, the State filed its answer. On July 21, 2010, after conducting a hearing, the post-conviction court issued its findings of fact and conclusions of law denying Williams' petition.
Williams now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5; Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To succeed on appeal from the denial of relief, the post-conviction petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 975. The purpose of post-conviction relief is not to provide a substitute for direct appeal, but to provide a means for raising issues not known or available to the defendant at the time of the original appeal. Id. If an issue was available on direct appeal but not litigated, it is waived. Id.
II. Ineffective Assistance of Counsel
Williams argues that he was denied the effective assistance of trial and appellate counsel in violation of his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. The standard by which we review claims of ineffective assistance of counsel is well established. In order to prevail on a claim of this nature, a defendant must satisfy a two-pronged test, showing that: (1) his counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 80L.Ed.2d 674 (1984), reh'g denied.
Counsel's performance is presumed effective, however, and a defendant must offer strong and convincing evidence to overcome this presumption. Id. Moreover, we do not need to determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Id. To satisfy a showing for prejudice, Williams must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Little v.State, 819 N.E.2d 496, 501 (Ind. Ct. App. 2004), trans. denied.
Counsel is afforded considerable discretion in choosing strategy and tactics and we will accord those decisions deference. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), reh'g denied, cert. denied, 537 U.S. 839 (2002). A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. The Strickland Court recognized that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Id. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id. The two prongs of the Strickland test are separate and independent inquiries. Id. Thus, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. (quoting Strickland, 466 U.S. at 697).
A. Ineffective Assistance of Trial Counsel
First, Williams claims that his trial counsel was ineffective because he failed to raise the argument that Williams shot Townsend in self-defense. Specifically, Williams contends that his counsel's theory that Townsend's death was due to an intervening cause, i.e., the trach tube becoming blocked, "ultimately amounted to no defense." (Appellant's Br. p. 26). Instead, Williams maintains that his trial counsel should have better communicated with him so that his counsel would have discovered that he acted out of self-defense by shooting Townsend. In support of this argument, Williams point to his self-serving testimony during the post-conviction hearing, at which he stated that because of a prior disagreement over money between Williams and Townsend, Townsend was the initial aggressor on the night of the incident and shot Williams first.
We have held before that we "will not lightly speculate as to what may or may not have been an advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances seems best." Whitener v. State, 696 N.E.2d 40, 43 (Ind. 1998). Here, trial counsel presented the theory that Williams' gunshot was not the cause of Townsend's death, but rather that intervening medical factors caused his death. Given the evidence presented, we do not believe this to be an unreasonable strategy, even if it was not successful in the end.
Moreover, based on the facts before us, it could be argued that a claim of self-defense was doomed from the beginning. During the trial, the state presented evidence that the murder occurred while Williams and Cleve attempted to rob Townsend. See Williams, 782 N.E.2d at 1045.
There can be little dispute that killing someone during the commission of robbery prevents the perpetrator from being able to successfully assert that he acted in self-defense. To commit robbery, the perpetrator must use or threaten the use of force on the victim or put the victim in fear. By its very nature, robbery is a crime which precludes the use of self-defense if the killing occurs during the commission of a robbery.Henderson v. State, 795 N.E.2d 473, 481 (Ind. Ct. App. 2003), reh'g denied, trans. denied. Therefore, we conclude that trial counsel was not ineffective when he did not present a theory of self-defense.
III. Ineffectiveness of Appellate Counsel
Next, Williams contends that his appellate counsel rendered ineffective assistance. Specifically, he claims that appellate counsel's conduct was defective when he failed to assert that the trial court abused its discretion by refusing to appoint new trial counsel for Williams.
The standard by which we review claims of ineffective assistance of appellate counsel is the same standard applicable to claims of trial counsel ineffectiveness. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), reh'g denied, trans. denied. In Bieghler, our supreme court identified three categories of appellate counsel ineffectiveness claims, including: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Bieghler v. State, 690 N.E.2d 188, 193-95, reh'g denied, cert. denied, 525 U.S. 1021 (1998). Williams' claim is reviewed as a Bieghler type two issue.
Ineffectiveness is rarely found in Bieghler type two issues because the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel. Ritchie v. State, 875 N.E.2d 706, 723-24 (Ind. 2007). Thus, our review is particularly deferential to counsel's strategic decision to exclude certain issues in favor of others. Id. As we stated before, appellate counsel is not required to raise every possible claim, but must winnow out weaker arguments and focus on the most promising issues for review. Azania v. State, 738 N.E.2d 248, 251 (Ind. 2000). We first look to see whether the unraised issues were significant and obvious on the face of the record. Ritchie, 875 N.E.2d at 724. If so, then we compare these unraised obvious issues to those raised by appellate counsel, finding deficient performance only when ignored issues are clearly stronger than those presented. Id. If deficient performance by counsel is found, then we turn to the prejudice prong to determine whether the issues appellate counsel failed to raise would have been clearly more likely to result in reversal or an order for a new trial. Id.
Williams complains that appellate counsel failed to assert the trial court's refusal to grant him new counsel as a separate issue on direct appeal. Specifically, Townsend claims the existence of a conflict of interest between his trial counsel and himself. A criminal defendant's Sixth Amendment right to effective assistance of counsel includes the right to conflict-free representation. Shepherd v. State, 924 N.E.2d 1274, 1287 (Ind. Ct. App. 2010), trans. denied. To prevail on a claim of conflict of interest, the defendant must demonstrate to the post-conviction court that trial counsel had an actual conflict of interest and that the conflict adversely affected counsel's performance. Id.
In the case before us, Williams asserts that trial counsel refused to give him all discovery materials that he believed he should have been given; that trial counsel did not consult with him as much as he wanted to; that trial counsel did not pursue a defense strategy that Williams insisted on; and that trial counsel did not adequately investigate the case and prepare for trial. In sum, Williams states that these disagreements resulted "in a complete breakdown of communications[.]" (Appellant's Br. p. 42). Evaluating these allegations, we believe that Williams did not raise an actual conflict of interest but rather expresses dissatisfaction with trial counsel's handling of the case. Moreover, the trial court conducted a hearing on Williams' request for dismissal of his trial counsel on June 13, 2001 and Williams orally addressed the trial court with respect to that issue. The trial court denied the request. Based on this evidence, we find appellate counsel's performance not deficient as the breakdown of communications claim was not as strong as the issues actually raised on direct appeal.
We note that although the fact of the dismissal of attorney hearing was noted in the post-conviction court's findings of fact and conclusions of law, no transcript of this hearing was submitted. See Appellant's App. p. 217.
CONCLUSION
Based on the foregoing, we conclude that the post-conviction court properly denied Williams' petition for post-conviction relief.
Affirmed. DARDEN, J., and BARNES, J., concur.