Opinion
24A-PC-1023
11-20-2024
Timothy L. Hall, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
APPELLANT PRO SE Timothy Hall Pendleton, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Allen Superior Court The Honorable Frances C. Gull, Judge Trial Court Cause No. 02D05-2309-PC-50
APPELLANT PRO SE Timothy Hall Pendleton, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE.
Case Summary
[¶ 1] Following a jury trial in 2015, Timothy Hall was convicted of three counts of child molesting, Class A felonies, one count of child molesting, a Class C felony, sexual misconduct with a minor, a Class B felony, and sexual misconduct with a minor, a Class C felony, for crimes committed against his daughter, B.B. Hall was also adjudicated to be an habitual offender. This Court affirmed Hall's convictions on direct appeal in 2016. Hall v. State, No. 02A03-1508-CR-1134 (Ind.Ct.App. June 10, 2016) (mem.), trans. denied. Hall then filed a pro se petition for post-conviction relief, which the post-conviction court ("PC Court") denied.
[¶ 2] Hall appeals this denial and argues that the PC Court clearly erred by rejecting Hall's claims that his trial counsel was ineffective by: (1) failing to object to the trial court's failure to give a proper jury unanimity instruction; and (2) failing to object under the doctrine of completeness to the admission of redacted letters that Hall wrote to B.B. from jail. We conclude that the PC Court did not clearly err by rejecting these claims. Accordingly, we affirm.
Issues
[¶ 3] Hall presents two issues for our review, which we restate as:
I. Whether the PC Court clearly erred by rejecting Hall's claim that his trial counsel was ineffective by failing to
object to the trial court's failure to give a proper jury unanimity instruction.
II. Whether the PC Court clearly erred by rejecting Hall's claim that his trial counsel was ineffective by failing to object under the doctrine of completeness to the admission of redacted letters that Hall wrote to B.B. from jail.
Facts
[¶ 4] In Hall's direct appeal, this Court set forth the underlying facts as follows:
On January 2, 2014, the State charged Hall with the following crimes involving his minor daughter, B.B.: counts I through VI, child molestation of a minor under age fourteen, as Class A felonies; count VII, child molesting of a minor under age fourteen, as a Class C felony; count VIII, sexual misconduct with a minor at least age fourteen but less than sixteen, as a Class B felony; and count IX, sexual misconduct with a minor at least age fourteen but less than sixteen, as a Class C felony. On April 25, the State also filed count X, alleging Hall is a habitual offender pursuant to Indiana Code Section 35-50-2-8(a). During a jury trial on June 30 and July 1, 2015, the parties submitted evidence of the following facts.
B.B. was born on October 27, 1997. Her mother is J.B., and her father is Hall. B.B. had no contact with Hall until she was approximately seven years old. Prior to that time, she had lived both with her mother and in foster homes in Allen County. On October 9, 2005, when B.B. was living with her mother and her mother's boyfriend, B.B.'s mother took her to the Fort Wayne Sexual Assault Treatment Center where B.B. was assessed due to her complaint that Hall had sexually abused her. The examination of B.B. was consistent with her complaint that she was sexually abused, and she was discharged into the care of the Indiana Department of Child Services ("DCS"). No evidence was presented as to what action DCS took regarding B.B.'s October 2005 allegation of sexual abuse.
In late 2005 or early 2006, DCS placed B.B. with Hall in Allen County. At trial, B.B. testified that Hall consistently had sexual intercourse with her and otherwise sexually abused her the entire time she had lived with him, which was until the end of 2012, except for a brief period of time when she was thirteen years old and placed in residential treatment. At the time of trial, B.B. was fifteen years old, and she testified that she knew what "sexual intercourse" meant. Tr. 191-92. She testified that she had slept in Hall's bed with him on a regular basis and that their relationship became one of husband and wife or boyfriend and girlfriend. B.B. testified that, when she was approximately eleven years old, Hall put her on birth control pills because he did not want her to get pregnant from having sex with him. Hall set an alarm clock for seven o'clock p.m. every day to remind B.B. to take the birth control pills. Hall enrolled B.B. in an on-line school rather than sending her to high school in the ninth grade. B.B. testified she did not tell DCS about the continuing sexual abuse because she had nowhere else to go; she did not want to go into foster care again, and she could not live with her mother due to her mother's on-going inability to properly care for her.
The State also presented the testimony of K.C., B.B.'s half-sister, who testified that, when B.B. was eight years old, B.B. told K.C. that Hall was touching her in sexual ways and that, when B.B. was eleven years old, B.B. told K.C. that Hall was having sexual intercourse with her.
In August 2013, Hall was arrested on charges of sexual misconduct with a minor (other than B.B.), and he was incarcerated. After Hall was arrested, B.B. was placed with her paternal grandmother. B.B. ran away from her grandmother's house and then began living with her mother, J.B. B.B. told her mother about the years of sexual abuse by Hall and, on November 13, 2013, J.B. and B.B. reported the sexual abuse to the Fort Wayne Police Department. While Hall was incarcerated and before B.B. had reported his sexual abuse, Hall wrote B.B. letters in which he made the following statements: "do you want us to have the same relationship as before I came here? . . . I love you and need things to be as they were but if your [sic] out there giving kitty away then it's over!," State's Ex.3; "don't leave these letters around where people can read them," Id.; "don't have dudes in our house!," Id.; "Please don't be that type of girl that love [sic] me when I'm around and a wild flirty girl when I'm not," id.; and "keep that thing tight for me," id.
The jury returned verdicts of "not guilty" as to counts I through III, and "guilty" as to counts IV through IX. After Hall's stipulation that he had also accumulated two prior felonies, the trial court found that he was a habitual offender. The court entered judgments of convictions as to counts IV through IX and, following a sentencing hearing, sentenced Hall to forty years for each of counts IV, V, and VI; four years for count VII; twenty years for count VIII; and four years for count IX. Counts VII and IX were concurrent with each other and with the previous counts. Count VIII was enhanced by thirty years due to Hall's habitual offender status....Hall, No. 02A03-1508-CR-1134, slip op. pp. 2-5.
Counts I through V alleged that Hall did perform or submit to sexual intercourse with B.B. "sometime" during the calendar years of 2006, 2007, 2008, 2009, 2010, respectively. Count VI alleged that Hall did perform or submit to sexual intercourse with B.B. between January 1, 2011, and October 26, 2011; Count VII alleged that Hall did perform of submit to fondling or touching with B.B. with the intent of arousing or satisfying Hall's or B.B.'s sexual desires between January 1, 2006, and October 26, 2011; Count VIII alleged that Hall did perform or submit to sexual intercourse with B.B. between October 27, 2011, and December 31, 2012; and Count IX alleged that Hall did perform of submit to fondling or touching with B.B. with the intent of arousing or satisfying Hall's or B.B.'s sexual desires between October 27, 2011, and December 31, 2012.
[¶ 5] On direct appeal, Hall argued that insufficient evidence supported his convictions, that the trial court erred by excluding certain evidence, and that his sentence was inappropriate; however, this Court rejected those arguments and affirmed Hall's convictions and sentence. See generally id.
[¶ 6] On September 18, 2023, Hall petitioned for post-conviction relief. Hall argued that his trial counsel was ineffective by: (1) failing to object to instructional errors regarding jury unanimity; and (2) failing to object to the admission of the letters under the doctrine of completeness.
[¶ 7] Regarding the jury unanimity instruction, Hall argued that the jury should have been instructed that "in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged." PC Appellant's App. Vol. II p. 22. Hall argued that trial counsel was ineffective by failing to object to the lack of this instruction. As for Hall's argument that trial counsel was ineffective by failing to object to the admission of the letters, Hall argued that the letters contain redactions and that "the redacted parts of the letters . . . indicated [Hall's] innocence of the offenses or provided context for the seemingly inappropriate comments." Id. at 23-24.
[¶ 8] The trial court ordered Hall to present his case by affidavit. Hall filed a "Designation of Evidence" on January 10, 2024, in which he designated, with fewer redactions, one of the redacted letters that the State offered as evidence at trial. Id. at 37. The State filed a response in which it argued that any error in the unanimity instruction was harmless and that, even if the redacted portions of the letter had been admitted, it would not have affected the outcome of the trial. Id. at 43-49.
[¶ 9] On March 28, 2024, the PC Court issued findings of fact and conclusions of law denying Hall's petition for post-conviction relief. The PC Court rejected Hall's argument that trial counsel was ineffective by failing to object to instructional errors regarding jury unanimity on the grounds that "the jury resolved the basic credibility dispute against" Hall and that trial counsel's failure to object to the instruction resulted in no prejudice to Hall. Id. at 14.
[¶ 10] The PC Court also rejected Hall's argument that trial counsel was ineffective by failing to object to the admission of the redacted letters. The PC Court found:
[C]ontrary to Mr. Hall's assertions, the redacted material contained no expressions of Mr. Hall's innocence . . ., and provided no context for his "seemingly inappropriate remarks"- nor did it display any effort to comfort B.B. or to show any "fatherly concern and sympathy." Rather, the redacted portions were concerned only with inquiries about the victim's incarceration and with Mr. Hall's efforts to enlist the victim to help him evade conviction in [a separate case]. Had the redacted portions been admitted, the jury would have had no more reason to doubt Mr. Hall's guilt of the charged offenses beginning in 2009 than it had when considering the redacted letters. As the admission of the redacted portions would not have changed the outcome of Mr. Hall's trial, [trial counsel] cannot be found
ineffective for failing to procure the admission of the redacted portions under Evidence Rule 106.Id. at 15. Hall now appeals.
Discussion and Decision
[¶ 11] Hall argues that the trial court clearly erred by denying his ineffective assistance of counsel claims. Hall argues that his trial counsel was ineffective for: (1) failing to object to instructional errors regarding jury unanimity; and (2) failing to object to the admission of the redacted letters under the doctrine of completeness. We conclude that the PC Court did not clearly err.
[¶ 12] Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), reh'g denied; Ind. Post-Conviction Rule 1(1)(b). "The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal." Gibson, 133 N.E.3d at 681. "Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata." Id. The petitioner bears the burden of establishing his claims by a preponderance of the evidence. Id.; P.-C.R. 1(5).
[¶ 13] When, as here, the petitioner "appeals from a negative judgment denying postconviction relief, he 'must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.'" Gibson, 133 N.E.3d at 681 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)). When reviewing the PC Court's order denying relief, we will "not defer to the post-conviction court's legal conclusions," and the "findings and judgment will be reversed only upon a showing of clear error- that which leaves us with a definite and firm conviction that a mistake has been made." Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019). When a petitioner "fails to meet this 'rigorous standard of review,' we will affirm the post-conviction court's denial of relief." Gibson, 133 N.E.3d at 681 (quoting DeWitt v. State, 755 N.E.2d 167, 169-70 (Ind. 2001)).
[¶ 14] Hall argues that his trial counsel was ineffective. To prevail on these claims, Hall must show that: (1) his counsel's performance fell short of prevailing professional norms; and (2) his counsel's deficient performance prejudiced his defense. Gibson, 133 N.E.3d at 682 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984)).
[¶ 15] A showing of deficient performance "requires proof that legal representation lacked 'an objective standard of reasonableness,' effectively depriving the defendant of his Sixth Amendment right to counsel." Id. (quoting Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007). We strongly presume that counsel exercised "reasonable professional judgment" and "rendered adequate legal assistance." Id. Defense counsel enjoys "considerable discretion" in developing legal strategies for a client. Id. This "discretion demands deferential judicial review." Id. Finally, counsel's "[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Id.
[¶ 16] To demonstrate prejudice from counsel's deficient performance, "the defendant must show a reasonable probability that, but for counsel's errors, the proceedings below would have resulted in a different outcome." Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
I. Jury Unanimity Instruction
[¶ 17] Hall first argues that trial counsel was ineffective by failing to object to the lack of a proper jury unanimity instruction. In Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011), our Supreme Court discussed Indiana's requirement that a jury "verdict of guilty in a criminal case must be unanimous." The Court explained, however, that "applying the rule of jury unanimity can present difficult challenges in charges of child molestation." Id.
[¶ 18] In cases where the abuser resides with the child, and the abuser perpetuates the abuse "so frequently that the young child loses any frame of reference in which to compartmentalize the abuse into distinct and separate transactions," the case rests only on "generic evidence." Id. In such cases, "a concern arises because the jury is not presented with a specific act upon which they unanimously may agree." Id. Another concern arises when "evidence is presented of a greater number of separate criminal offenses than the defendant is charged with." Id. at 1175. The Court explained that the procedure most commonly followed to address these concerns "has been described as the 'either/or' rule. That is to say, the defendant is entitled either to an election by the State of the single act upon which it is relying for a conviction or to a specific unanimity instruction." Id. at 1176 (italics in original).
[¶ 19] The Court adopted a modified version of the "either/or" rule and held as follows:
[T]he State may in its discretion designate a specific act (or acts) on which it relies to prove a particular charge. However if the State decides not to so designate, then the jurors should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.Id. at 1177 (emphasis added).
[¶ 20] Here, the State did not charge Hall with specific acts underlying his offenses. Rather, the State alleged that Hall committed the charged offenses "[s]ometime" between the various time frames set out in the charging information. Trial Appellant's App. Vol. II pp. 24-40. Because the State did not allege specific acts in support of Hall's charged offenses, pursuant to Baker, the jury should have been instructed that, to convict Hall, "they must either unanimously agree that [Hall] committed the same act or acts or that [Hall] committed all of the acts described by the victim and included within the time period charged." Baker, 948 N.E.2d at 1177. The trial court here tendered its own instructions, but did not give a unanimity instruction in accordance with Baker, and Hall's trial counsel did not object to the absence of this instruction.
[¶ 21] Even if we assume that Hall's trial counsel was deficient by failing to object to the trial court's instructions, we agree with the PC Court that the error did not prejudice Hall's defense. At trial, B.B. testified that Hall had sex with her "in every calendar year from 2005 to 2013." Trial Tr. Vol. I p. 232. Hall had sex with her "every day, more than once a day at times and really just depend[ing] on what he wanted." Id. at 218. B.B. described in detail the first time Hall had sex with her, which occurred when she was age seven or eight, by laying her down on a towel on the floor and removing her underwear. She described another instance when she was age thirteen where Hall had sex with her because "he wanted what he wanted and so [she] had to." Trial Tr. Vol. II p. 14. B.B. and Hall slept in the same bed in the various houses in which they lived. B.B. testified that she could "go on and on and on" about instances where Hall had sex with her. Id.
[¶ 22] B.B. further testified that Hall had her start taking birth control when she was "no younger than 11" to prevent her from getting pregnant by him. Trial Tr. Vol. I p. 198. Hall would set an alarm for 7:00 p.m. every night to remind B.B. to take her birth control. B.B.'s mother testified that she reentered B.B.'s life around 2008 or 2009 when B.B. was approximately eleven or twelve years old. When B.B.'s mother would visit B.B. at Hall's house, a timer would go off in the evening, Hall would tell B.B. "it's time for you to take your medicine," and B.B. would go into the bathroom. Trial Tr. Vol. II p. 67. B.B.'s mother found birth control in the bathroom. Hall admitted that B.B. was on birth control when she was twelve or thirteen years old.
[¶ 23] B.B.'s friend, half-sister, and mother all described B.B. and Hall as having a flirtatious and touchy relationship closer to that of a boyfriend and girlfriend or husband and wife than one of a father and daughter. B.B.'s half-sister testified that B.B. twice disclosed Hall's inappropriate touching to her.
[¶ 24] Lastly, Hall's letters to B.B. from jail also suggest that he treated her like a sex partner. Hall wrote several letters to B.B. while he was in prison awaiting trial for sex offenses against another minor. The State presented three of Hall's letters, and in the third letter, Hall wrote to B.B.: "[I] love you and need things to be as they were but if you['re] out there giving kitty away then its over?!"; "[D]on't leave these letter[s] around so that people can read them[. P]ut them in your book bag take them home and don't have dudes in our house"; "Please don't be that type of girl that love me when I'm around and a wild flirty girl when I'm not"; and "[Y]ou better be working out keep that thing tight for me:)[.]" Trial Ex. Vol. I pp. 18-19.
[¶ 25] Hall argues that he was prejudiced because "in light of the fact that the jury acquitted Hall on three of the charges, the jury clearly did not believe all of the accusations made by B.B." Appellant's Br. p. 14. The fact that the jury found Hall guilty on some charges and not guilty on others merely demonstrates that the jury carefully considered the evidence relevant to each of the time periods in which the charged offenses were alleged to have occurred. Given the strength of the evidence against Hall in this case, we are not persuaded that a reasonable possibility exists that, absent trial counsel's errors, the outcome at trial would have been different.
II. Redacted Letter
[¶ 26] Hall next argues that trial counsel was ineffective by failing to object to the admission of the redacted letters at trial under the doctrine of completeness. Hall argues that the redactions removed sections "in which Hall indicated his innocence of the offenses or otherwise provided expanded context for the comments" and that the "redacted material would have changed the context of the letter from one of confession to arguably one of fatherly concern and sympathy for B.B." Appellant's Br. p. 18.
[¶ 27] Evidence Rule 106 provides, "If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part-or any other writing or recorded statement-that in fairness ought to be considered at the same time." This rule embodies the "'completeness doctrine.'" Hart v. State, 30 N.E.3d 1283, 1289 (Ind.Ct.App. 2015) (quoting Sanders v. State, 840 N.E.2d 319, 322 (Ind. 2006)), trans. denied. The doctrine's purpose "'is to provide context for otherwise isolated comments when fairness requires it.'" Id. (quoting Sanders, 840 N.E.2d at 323). "A court need not admit the remainder of the statement, or portions thereof, that are neither explanatory of nor relevant to the portions already introduced." Id. (citing Sanders, 840 N.E.2d at 323).
[¶ 28] The record does not support Hall's argument that trial counsel was ineffective by failing to object to the redacted letters under the doctrine of completeness. First, although Hall frames the argument as trial counsel's failure to object to the redacted letters at trial, the State introduced three letters that Hall wrote to B.B. from jail, and the third letter was not redacted. The third letter, quoted above, was admitted as State's Exhibit 3, and contains the most explicit suggestions that Hall treated B.B. like a sex partner. See Trial Ex. Vol. I pp. 1819.
[¶ 29] Hall has only provided us with a less-redacted version of one of the other letters, State's Exhibit 1. The redacted portions of this letter refer to B.B. being arrested and placed in jail and, in one instance, Hall claims there is "no evidence" against him in the case involving the other minor. PC Appellant's App. Vol. II pp. 37-41. Nothing in the redacted portions of this letter changes the context of Hall's statements in any meaningful way. The PC Court did not clearly err by rejecting Hall's ineffective assistance of counsel claim regarding the redacted letter.
In his Designation of Evidence, Hall labeled this letter as State's Exhibit 6. At trial, however, State's Exhibit 6 was not one of Hall's letters.
Conclusion
[¶ 30] The PC Court did not clearly err by rejecting Hall's ineffective assistance of counsel claims. Accordingly, we affirm.
[¶ 31] Affirmed.
May, J., and DeBoer, J., concur.