Opinion
23A-PC-940
05-24-2024
Sean Wayne Keith, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
APPELLANT PRO SE Sean Wayne Keith Pendleton, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Sierra A. Murray 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Steuben Superior Court The Honorable William C. Fee, Judge Trial Court Cause No. 76D01-0909-PC-4
APPELLANT PRO SE
Sean Wayne Keith
Pendleton, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
Tavitas and Weissmann concur.
MEMORANDUM DECISION
Mathias, Judge.
[¶1] Sean Wayne Keith was convicted in Steuben Superior Court of two counts of Class A felony child molesting and was ordered to serve an aggregate ninetyyear sentence. Keith subsequently filed a pro se petition for post-conviction relief alleging ineffective assistance of trial counsel. The post-conviction court denied Keith's petition, and he appeals. Concluding that Keith has not established ineffective assistance of trial counsel, we affirm.
Facts and Procedural History
[¶2] In the direct appeal affirming Keith's Class A felony child molesting convictions, our court recounted the following relevant facts:
Keith was married to the mother of R.K. R.K. was born on September 13, 1990, and was the oldest of seven children. On July 25, 2004, R.K.'s mother was arrested and taken to jail. Around midnight on that day, Keith came home drunk, forced his way into R.K.'s bedroom, took off his clothes, and asked R.K. to remove her clothes. When R.K. refused, Keith forced himself on top of the girl and had sexual intercourse with her. R.K. screamed and told Keith to stop, but he continued. When he had finished, Keith told R.K. not to tell anyone what had happened because if she did, "they would split up the family." Tr. p. 167. Three days later, on July 28, 2004, Keith again came home drunk, went into R.K.'s bedroom, and forced her to have sexual intercourse with him.
R.K. was eventually placed in a foster home due to her mother's incarceration, and her siblings were placed in another foster home. When R.K.'s foster mother told her that Keith was trying to obtain custody of her siblings, R.K. told her foster mother what Keith had done. R.K. explained that she "wasn't going to
put [her] siblings through it," meaning, "what [Keith] did to me." Tr. p. 173.Keith v. State, No. 76A05-0710-CR-592, 2008 WL 2498234, *1 (Ind.Ct.App. June 24, 2008) (mem.). On direct appeal, Keith unsuccessfully challenged the sufficiency of the evidence and whether his sentence was inappropriate.
[¶3] Keith filed his petition for post-conviction relief pro se on September 4, 2009, but the post-conviction court dismissed the petition without prejudice on September 26, 2019. Keith filed an amended petition pro se in April 2022 and alleged that his trial counsel had been ineffective. Appellant's App. Vol 2. pp. 20-21. In his petition, Keith claimed he was denied his right to the effective assistance of trial counsel because she had acted as a "de facto" prosecutor. Id. at 22. Specifically, he alleged that the prosecutor had failed to elicit testimony during R.K.'s direct examination that Keith penetrated her vagina with his penis, but that his trial counsel had elicited testimony proving penetration on cross-examination. Id. at 22-23. Keith also claimed his trial counsel was ineffective during closing arguments when she had failed to object to the prosecutor's opinion concerning R.K's credibility and when the prosecutor referred to Keith as an animal. Id. at 26-29. Keith argued that his trial counsel was also ineffective because she had failed to "request a record" on the instructions conference, to object to "innocence in instruction 13" and instruction 15, to call an expert, to request a missing witness instruction, and to ask R.K. about a vacation. Id. at 29-30.
[¶4] On August 15, the post-conviction court held a hearing on Keith's amended petition. In support of his petition, Keith submitted the trial record and a December 1, 2009, letter from his now-deceased trial counsel that included a list of "things [she] probably should have done and did not do" during Keith's trial. Ex. Vol. p. 5. This list included most of the trial counsel errors listed in Keith's petition. Keith also submitted his trial counsel's affidavit attaching her previous letter to Keith and an additional paragraph stating that she had "failed to object when the Prosecutor referred to Mr. Keith as 'an animal' at trial." PostConviction Tr. pp. 5-7; Ex. Vol. pp. 6-7.
[¶5] On March 29, 2023, the post-conviction court issued findings of fact and conclusions of law denying Keith's requested post-conviction relief. The court specifically addressed each of Keith's claims challenging the performance of trial counsel, and the court concluded that none of counsel's alleged errors constituted deficient performance. Appellant's App. Vol. 2, pp. 80-83. The court also concluded that, assuming for the sake of argument that trial counsel should have objected to the prosecutor's reference to Keith as "an animal," Keith was not prejudiced by counsel's failure to object. Id. at 83. Ultimately, the court concluded that Keith had not met his burden of establishing that he was subjected to ineffective assistance of trial counsel and denied Keith's petition.
[¶6] Keith now appeals.
Standard of Review
[¶7] Keith appeals the post-conviction court's denial of his petition for post conviction relief. Our standard of review is well-settled:
"The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence." Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014). "When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment." Id. at 274. In order to prevail on an appeal from the denial of post-conviction relief, a petitioner must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the postconviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court's legal conclusions, "[a] post-conviction court's 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." Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).
Ineffective Assistance of Trial Counsel
[¶8] Keith contends that the post-conviction court clearly erred when it found that he received effective assistance of trial counsel.
When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, "the defendant must show
deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the 'counsel' guaranteed by the Sixth Amendment." McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687-88). To satisfy the second prong, "the defendant must show prejudice: a reasonable probability (i.e.[,] a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different." Id. (citing Strickland, 466 U.S. at 694).Id. Failure to satisfy either of the two prongs will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Indeed, most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
[¶9] Before we address Keith's specific claims of deficient performance, we observe that "counsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption." Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). Counsel has wide latitude in selecting trial strategy and tactics, which we afford great deference. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). We "will not speculate as to what may have been counsel's most advantageous strategy, and isolated poor strategy, bad tactics, or inexperience does not necessarily amount to ineffective assistance." Sarwacinski v. State, 564 N.E.2d 950, 951 (Ind.Ct.App. 1991) (citation omitted).
Counsel's Cross-Examination of R.K. and the Investigating Detective
[¶10] Keith's first claim of deficient performance is that his trial counsel acted as a de facto prosecutor for the State. First, Keith observes that, after the State had elicited testimony from R.K. on direct examination that Keith had sexual intercourse with her, his trial counsel elicited testimony from R.K. on cross-examination that Keith had penetrated her vagina with his penis. Keith claims counsel's performance was deficient because, on direct examination, "the victim never stated that [Keith] placed his penis in her vagina and no explanation was given for her meaning of sex/sexual intercourse to clarify she understood that it required the penetration of the penis in her vagina." Appellant's Br. at 10.
[¶11] R.K. was thirteen years old when Keith molested her. And she was sixteen years old when she testified at trial. Given her age both when the offenses occurred and when she testified at trial, it was reasonable for the jury to infer that R.K. knew that "sex" is defined as the penetration of the vagina with a penis. On direct examination, R.K. testified that Keith took his clothes off and removed R.K.'s clothes. Trial Tr. pp. 165-66. She stated that he had "sex" with her. Id. at 166. R.K. testified that she asked Keith to stop, but he did not. Id. She then testified that, three days later, Keith had "sexual intercourse" with her for a second time after he removed their clothing. Id. at 168. R.K. stated that Keith "forced" her again. Id. R.K.'s testimony on direct examination was sufficient to prove penetration, and, therefore, trial counsel did not engage in deficient performance when she asked R.K. if Keith "stuck" his penis into her vagina. See id. at 185-86, see also id. at 198.
The trial court's preliminary and final instructions also "advised the jurors that the definition of 'sexual intercourse' included the element of 'penetration.'" Appellant's App. Vol. 2 p. 81 (quoting Trial Tr. pp. 149, 243).
[¶12] Keith also contends that his trial counsel's performance was deficient when she elicited testimony during R.K.'s cross-examination that, during R.K.'s deposition, she told counsel that Keith pulled her pants down in the garage of their West Otter Lake residence. Id. at 189. Counsel elicited this testimony to establish that R.K.'s statements to the investigating detective were not consistent. See id. at 187-89. This was a strategic decision and does not constitute deficient performance.
[¶13] Next, Keith argues that trial counsel acted as a de facto prosecutor when she questioned the investigating detective about his training and credentials, which Keith claims bolstered his credibility. Specifically, trial counsel elicited testimony that the detective had 480 hours of training at the Indiana Law Enforcement Academy, numerous in-service trainings, and training at the Reid School of Interviewing and Interrogation. Id. at 211. Trial counsel appears to have elicited this testimony, at least in part, to make the jury aware that the Reid School trains officers "to tell suspects things that are not true in an attempt to get them to confess," and the detective used that technique when he questioned Keith. Id. at 213-14. Trial counsel also elicited testimony from the detective showing that he did not verify certain facts during his investigation. Id. at 210. In addition, trial counsel elicited testimony that the detective did not ask Keith during the interview what Keith's educational background was, whether he was under the influence of substances, or whether he suffered from mental illness. Id. at 215. After reviewing trial counsel's cross-examination of the detective in its entirety, we conclude that trial counsel made a strategic decision to briefly question the detective about his training to attempt to discredit the detective's manner of interrogating Keith. Therefore, Keith has not established that trial counsel's performance was deficient.
[¶14] In sum, regarding the questioning discussed above, Keith has not established that his trial counsel acted as a de facto prosecutor, thus denying him counsel during the critical stages of his trial. Keith claims, and we agree, that the entirety of the State's case "hinged on the credibility of R.K." Appellant's Br. at 7. Trial counsel attempted to attack R.K.'s credibility to the best of her ability by pointing out to the jury the inconsistencies in R.K.'s statements at various stages of the investigation and during trial. Counsel's performance during cross-examination of the State's witnesses was not deficient, and Keith has not established that his trial counsel's performance was "so egregious that it failed to subject the State's case to meaningful adversarial testing ...." Id. at 14.
Throughout his Appellant's brief, Keith repeatedly claims that trial counsel failed to properly impeach R.K. with prior inconsistent statements made during her deposition and prior statements made to the investigating detective. Keith's claim is not supported by the record. Trial counsel attempted to impeach R.K. with multiple inconsistent pre-trial statements. See Trial Tr. pp. 186-90, 198-99.
In United States v. Cronic, 466 U.S. 648 (1984), the Supreme Court created a narrow exception to the Strickland analysis and concluded that in very limited circumstances "a presumption of ineffectiveness" may be justified and that the circumstances by themselves are "sufficient" to establish a claim of ineffective assistance "without inquiry into counsel's actual performance at trial." Id. at 662. These circumstances are the complete denial of counsel, a case where counsel entirely fails to subject the State's case to meaningful adversarial testing, and cases where the "surrounding circumstances are such that, although counsel is available to assist accused during trial, likelihood that any lawyer, . . . could provide effective assistance is so small that the presumption of prejudice is appropriate ...." See Minnick v. State, 698 N.E.2d 745, 752 (Ind. 1998). Keith argues that counsel's performance in this case failed to subject the State's case to meaningful adversarial testing. But trial counsel presented opening and closing arguments to the jury and cross-examined the State's witnesses. Counsel elicited testimony to show the jury that R.K.'s statements concerning the molestation and circumstances surrounding Keith's offenses were not entirely consistent. Counsel also objected to jury instructions and a statement made by the State during closing argument. For these reasons, Keith cannot establish a Cronic claim.
Counsel's Failure to Object During the State's Closing Argument
[¶15] Keith also asserts that his trial counsel's performance was deficient when she failed to object to certain statements made by the prosecutor during closing argument. "To prove ineffective assistance for failure to object to the State's closing argument, a defendant must prove that his objections would have been sustained, that the failure to object was unreasonable, and that he was prejudiced." Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997). Keith argues that his trial counsel should have objected during closing argument when the prosecutor improperly vouched for R.K.'s credibility and referred to Keith as an animal.
[¶16] It is well-settled that "[i]t is improper for a prosecutor to make an argument that takes the form of personally vouching for a witness." See, e.g., Saylor v. State, 55 N.E.3d 354, 361 (Ind.Ct.App. 2015), trans. denied. "However, a prosecutor may comment on a witness's credibility if the assertions are based on reasons arising from the evidence presented at trial." Id.
[¶17] R.K.'s credibility was the main issue at trial. During closing argument, the prosecutor commented on R.K.'s demeanor during her testimony, i.e., that she feared Keith but did not appear to hate him, and stated, "[i]f that would have happened to me, I think I might be hateful." Trial Tr. p. 231. R.K. testified that Keith had helped support her family but also that she was afraid of Keith. Id. at 170-71. The prosecutor's comment was based on the evidence presented and his observation of R.K.'s demeanor during trial. For these reasons, we do not agree with Keith that the argument was improper vouching. The prosecutor also argued that R.K.'s motivation for disclosing the molestation was to prevent Keith from "do[ing] this to me again or to my sisters. Even my little sister." Id. at 239. This argument was based on R.K.'s testimony at trial and was not improper. See id. at 172-73.
Keith argues that the quoted argument was a request for the jury to convict Keith for a reason other than his guilt. Appellant's Br. at 17-18 (citing Ryan v. State, 9 N.E.3d 663, 671 (Ind. 2014)). But the argument was supported by the evidence establishing R.K.'s motivation for disclosing the molestation after nearly two years had elapsed. When we consider the statements within the context of the State's argument, we do not agree with Keith's assertion that the State was urging the jury to convict Keith to prevent future molestation of other children.
[¶18] During the State's rebuttal, the prosecutor described R.K. as the family caretaker and then generally commented on R.K.'s testimony, stating, "[t]his is not fabricated testimony." Id. Trial counsel objected on the grounds that the argument was improper vouching and requested a mistrial. Id. Keith claims that his trial counsel should have also objected that the prosecutor was "bolstering the victim" because she was acting like the responsible adult in the household. Appellant's Br. at 16. We cannot conclude that an objection for bolstering would have been sustained because the argument was based on R.K.'s testimony concerning her role in the household given her mother's drug problem.
[¶19] We now turn to Keith's argument that his trial counsel should have objected when the State called him an "animal." See Trial Tr. p. 231. Specifically, the State described him as an "animal" because he forced himself on thirteen-year-old R.K. Id. During trial, Keith elicited testimony from R.K. that Keith did not kiss or fondle R.K., and that he did not use a condom or lubricant. Defense counsel attempted to use this testimony to undermine R.K.'s credibility, as this is typically conduct that would occur during sexual activity. Defense counsel also argued that R.K.'s description of the molestation was less than credible because Keith could not have penetrated R.K. without lubricant. Id. at 235-36. The State's characterization of how Keith committed his crimes was in response to his defense that the molestation could not have occurred as R.K. described it and the argument is supported by the evidence presented. This was not improper. See Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006) (explaining that "[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable"). And even if the argument were improper, Keith has not established any resulting prejudice from being referred to as an "animal" during closing argument. See, e.g., Bowles v. State, 737 N.E.2d 1150, 1154 (Ind. 2000) (declining to find that the trial court abused its discretion when it allowed the State to characterize the defendant as a cockroach while analogizing the defendant's conduct to that portrayed by a cockroach in a poem read to the jury).
Failure to Investigate and Present Testimony of Additional Witnesses
[¶20] Keith claims that his trial counsel was ineffective when she failed to call R.K.'s brother as a witness and failed to depose or subpoena R.K.'s foster mother. Effective representation requires adequate pretrial investigation and preparation, but we also should resist judging an attorney's performance with the benefit of hindsight. Badelle v. State, 754 N.E.2d 510, 538 (Ind.Ct.App. 2001), trans. denied. Accordingly, "[w]hen deciding a claim of ineffective assistance of counsel for failure to investigate, we apply a great deal of deference to counsel's judgments." Boesch v. State, 778 N.E.2d 1276, 1283 (Ind. 2002). To establish failure to investigate as a ground for ineffective assistance of counsel, the petitioner must go "beyond the trial record to show what the investigation, if undertaken, would have produced." Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998). "This is necessary because success on the prejudice prong of an ineffectiveness claim requires a showing of a reasonable probability of affecting the result." Id.
[¶21] Here, there is nothing in the post-conviction or trial record to establish what testimony or evidence R.K.'s brother and her foster mother would have provided at trial. Keith did not subpoena R.K.'s brother or foster mother or present any other evidence at the post-conviction hearing to establish that if their testimony would have been presented it is reasonably likely that the outcome of his trial would have been different. Therefore, Keith has not demonstrated that he was denied effective assistance of trial counsel.
Failure to Object to Jury Instructions 13 and 15
[¶22] Jury Instruction 13 informed the jury that Keith could not be compelled to testify at trial and his failure to testify should not be "considered by the jury in determining the guilt or innocence of the defendant." Trial Appellant's App. Vol. 1, p. 86. Instruction 15 informed the jury, in relevant part, that "[y]our verdict must represent the considered judgment of each juror. In order to return a verdict of guilt or innocence, you must all agree." Id. at 88.
[¶23] Keith's trial counsel objected to the use of the word "innocence" in Instruction 13. Keith asked the court to use the phrase "not guilty." Trial Tr. p. 223. The trial court agreed but the instruction was not corrected, and ultimately, the court gave the instruction using the word innocence. Counsel did not renew her objection.
[¶24] Keith now argues that trial counsel was ineffective for failing to renew her objection to Instruction 13 and raise an objection to Instruction 15. But Keith does not explain how he was prejudiced by the instruction's use of the word "innocence" or how the result of the proceedings would have likely been different if the trial court had used the phrase "not guilty" in those instructions. Therefore, Keith has not established that he was denied the effective assistance of trial counsel.
Trial Counsel's Admissions that She Committed Errors During Trial
[¶25] Keith's trial counsel is now deceased and was therefore unable to testify at the post-conviction hearing. However, she sent Keith a letter briefly describing what she could have done differently at his trial. She also provided Keith with an affidavit incorporating her letter. However, contrary to Keith's claim in his brief, counsel did not admit that she had provided ineffective assistance of trial counsel. See Appellant's App. pp. 52-56.
[¶26] Moreover, Keith did not present any evidence or argument concerning three of counsel's possible errors, i.e. that she failed to call an expert, failed to request a missing witness instruction, and failed to ask R.K. about a vacation. See Ex. Vol. p. 5. The remaining alleged errors are discussed above, and Keith has not established that he suffered prejudice as a result of the alleged deficient performance.
Cumulative Error
[¶27] We acknowledge but also reject Keith's claim that the "cumulative effect" of counsel's errors deprived him of his right to the effective assistance of counsel. See Kubsch v. State, 934 N.E.2d 1138, 1154 (Ind. 2010) (quoting Reaves v. State, 586 N.E.2d 847, 858 (Ind. 1992)) (explaining that "[t]rial irregularities which standing alone do not amount to error do not gain the stature of reversible error when taken together"); see also Weisheit v. State, 109 N.E.3d 978, 992 (Ind. 2018) (stating that "[g]enerally, trial errors that do not justify reversal when taken separately also do not justify reversal when taken together"). Keith has not established that trial counsel's performance was deficient, but, even if he had, he has not persuaded us that the complained of errors prejudiced him such that when considered together it is reasonably likely that the outcome of his trial would have been different.
Conclusion
[¶28] Keith raised several claims alleging ineffective assistance of trial counsel in his petition for post-conviction relief. The trial court determined that Keith failed to meet his burden of establishing that he was deprived of his right to the effective assistance of trial counsel. And, on appeal, Keith has not convinced us otherwise. We therefore affirm the trial court's order denying Keith's petition for post-conviction relief.
[¶29] Affirmed.
Tavitas, J., and Weissmann, J., concur.