Opinion
49A02-1603-PC-612
10-15-2024
Trey Richardson, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
ATTORNEY FOR APPELLANT John Andrew Goodridge Evansville, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable Marc T. Rothenberg, Judge Trial Court Cause No. 49G02-0502-PC-19119
ATTORNEY FOR APPELLANT
John Andrew Goodridge
Evansville, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] Trey Richardson was convicted of murder in 2006. On direct appeal, in addition to challenging the admission of certain evidence at trial, Richardson argued that he had received ineffective assistance of trial counsel. We rejected that argument and affirmed Richardson's conviction. Years later, Richardson petitioned for post-conviction relief ("PCR"), arguing that he had received ineffective assistance of appellate counsel. The post-conviction court denied Richardson's PCR petition. We affirm.
Facts and Procedural History
[¶2] The facts, as laid out in our prior decision from Richardson's direct appeal, are as follows:
Prior to January of 2005, Crystal Freeman had known Darrell Graham for many years. Freeman had also known Richardson for a couple of months as she would buy drugs from him approximately three times a week. Freeman would meet Richardson at a house located at 516 East 33rd Street, which was located between Ruckle Street and Central Avenue in Indianapolis. On January 12, 2005, Freeman saw Richardson, along with several other individuals at this house. Taffia Mays, Graham's girlfriend and the mother of his two children, also saw Richardson at this house around 5:00 or 6:00 p.m. on January 12. After Mays and Patricia Gibbs (also known as "Susie") left the house together, Gibbs told Mays and a man that Graham was planning to commit a robbery at the house that evening. Graham had attempted to do so a week earlier, showing up with a gun, but Gibbs had been the only person present and the
attempt was aborted.
Around 4:00 a.m. on January 13, Freeman was in the vicinity of the house on 33rd Street when she saw Graham walking down the street. Graham asked Freeman if she knew where Mays was, and Freeman told Graham that she had seen Mays at the house earlier that evening. Graham then asked Freeman if she knew who was in the house on 33rd Street. Shortly thereafter, Freeman saw Graham walk up to the house, knock, and then enter the house. A few minutes later, Freeman saw Graham walking down the street again. Richardson and two other men came from between two houses and called to Graham. Richardson then fired four to five shots at Graham. A bullet entered the left side of Graham's back, passed through his chest cavity, piercing his left lung and both ventricles of his heart, and exited through his rib cage, causing extensive internal hemorrhaging and ultimately Graham's death.
Police officers dispatched to the scene on a report of shots fired initially found nothing unusual. A short time later, officers returned to the scene where they discovered Graham's dead body lying face down on the sidewalk on Ruckle Street. Detectives at the scene learned that Freeman may have information about the shooting. Freeman was eventually picked up by a police officer and taken to police headquarters. Freeman immediately told Detective Thomas Lehn that Richardson shot Graham. After Lehn's interview with Freeman, Detective Ronald Gray transported Freeman to the scene of the shooting where she described where she was standing when the shooting occurred and where Richardson was located. Later, Detective Gray returned to the scene, and near the location where Freeman indicated Richardson was standing when he fired the shots, Detective Gray found five spent shell casings on the street. Two of the casings were .9 mm and the other three were .380 caliber casings, all fired from a single gun. Upon being shown a photo array, Freeman identified Richardson as the shooter.
On February 9, 2005, the State charged Richardson with murder. Prior to trial, Richardson filed a motion in limine to exclude any Rule 404(b) evidence and specifically sought to exclude evidence related to his drug dealing or drug involvement. In response, the State asserted that Richardson's drug dealing was "contemporaneous with [the murder] and it's the motive for the murder." Transcript at 9. The trial court ruled that the State could introduce limited evidence of Richardson's drug dealing because it was relevant to motive. A jury trial was held January 9 through 11, 2006. At the conclusion of the evidence, the jury found Richardson guilty of murder. On February 1, 2006, the trial court sentenced Richardson to fifty-five years imprisonment.Richardson v. State, 2007 WL 188973 *1-2 (Ind.Ct.App. Jan. 26, 2007).
[¶3] On direct appeal, Richardson argued that the trial court had abused its discretion in admitting certain evidence and that his trial counsel had provided him with ineffective assistance. Concluding that the trial court had not abused its discretion in admitting the challenged evidence and that Richardson had "not met his burden to overcome the strong presumption that his [trial] counsel rendered adequate assistance," we affirmed Richardson's conviction. Id. at *8.
[¶4] Richardson filed a pro-se PCR petition on February 1, 2008, in which he again alleged that he had received ineffective assistance of trial counsel. This first PCR petition was dismissed without prejudice on October 21, 2009.
[¶5] Richardson filed a second PCR petition on May 31, 2013, in which he argued that he had received ineffective assistance of appellate counsel. The post-conviction court denied Richardson's PCR petition on January 29, 2016. In denying Richardson's PCR petition, the post-conviction court concluded that although it believed that Richardson's "appellate counsel was ineffective for raising ineffective assistance of trial counsel" on direct appeal, Richardson was not entitled to relief because he had "failed to meet his compound burden of also showing trial counsel's performance was deficient." Appellant's App. Vol. V p. 55, 54.
[¶6] Richardson initiated an appeal of the denial of his PCR petition on March 15, 2016. On September 8, 2016, Richardson's appeal was dismissed with prejudice. Richardson subsequently requested permission to file a successive PCR petition. On June 12, 2023, we granted Richardson's request, in part, and granted him permission to appeal the denial of his prior PCR petition.
Discussion and Decision
[¶7] "Post-conviction procedures do not afford the petitioner with a super-appeal." Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). "Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules." Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind.Ct.App. 1999), trans. denied.
[¶8] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, "leads unerringly and unmistakably to a decision opposite that reached by the postconviction court." Stevens, 770 N.E.2d at 745. "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 in original). "It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law." Godby v. State, 809 N.E.2d 480, 482 (Ind.Ct.App. 2004), trans. denied. "The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses." Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
I. Ineffective Assistance of Counsel
[¶9] "The right to effective counsel is rooted in the Sixth Amendment to the United States Constitution." Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). "'The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)). "'The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" Id. (quoting Strickland, 466 U.S. at 686).
[¶10] A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first prong, the petitioner must establish that counsel's performance was deficient by demonstrating that counsel's representation "fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the 'counsel' guaranteed by the Sixth Amendment." Id. (internal quotation omitted). "We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or most effective way to represent a client," and therefore, under this prong, we will assume that counsel performed adequately and defer to counsel's strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). "Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Id.
[¶11] Under the second prong, the petitioner must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by demonstrating that there is "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. (emphasis added, internal quotation omitted). A petitioner's failure to satisfy either prong will cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, "[a]lthough the two parts of the Strickland test are separate inquires, a claim may be disposed of on either prong." Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (citing Williams, 706 N.E.2d at 154).
[¶12] "The standard of review for appellate counsel is the same as for trial counsel in that the defendant must show appellate counsel was deficient in his or her performance and that the deficiency resulted in prejudice." Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). "[I]neffective assistance of appellate counsel claims generally fall into three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well." Hollowell v. State, 19 N.E.3d 263, 270 (Ind. 2014). Richardson acknowledges that his "allegation of his appellate counsel's ineffectiveness does not fit neatly within any one of these three categories, it touches on each in asserting that appellate counsel erred by raising ineffective assistance of trial counsel on direct appeal." Appellant's Br. p. 16.
[¶13] In Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998), the Indiana Supreme Court held that a litigant may raise a claim of ineffective assistance of trial counsel either on direct appeal or in post-conviction proceedings. The Woods Court warned, however, that a litigant may not divide an ineffectiveness claim between two proceedings, holding that "ineffective assistance of trial counsel is not available in postconviction [proceedings] if the direct appeal raises any claim of deprivation of [the] Sixth Amendment right to counsel." Id. Thus, the Woods Court stated that, as a practical matter, its ruling "will likely deter all but the most confident appellants from asserting any claim of ineffectiveness on direct appeal." Id.
[¶14] With regard to a claim that appellate counsel had rendered ineffective assistance for raising a claim of ineffective assistance of trial counsel on direct appeal, the Indiana Supreme Court has stated that
[w]hen the claim of ineffective assistance is directed at appellate counsel for failing fully and properly to raise and support a claim of ineffective assistance of trial counsel, a defendant faces a compound burden on postconviction. The postconviction court must conclude that appellate counsel's performance was deficient and that, but for the deficiency of appellate counsel, trial counsel's performance would have been found deficient and prejudicial. Thus, [a petitioner's] burden before the postconviction court was to establish the two elements of ineffective assistance of counsel separately as to both trial and appellate counsel.Timberlake v. State, 753 N.E.2d 591, 604 (Ind. 2001). As the post-conviction court noted, Richardson attempted "to meet this burden of proof by claiming that his trial counsel was ineffective: 1) for failing to call two witnesses [i.e., Robert Lee Henry and Donald Davis]; 2) by failing to obtain nighttime photos of the crime scene; and 3) for advising Richardson not to testify." Appellant's App. Vol. V p. 52.
A. Failure to Call Witnesses
[¶15] Richardson argues that the post-conviction court erred in denying his PCR petition because he had established that trial counsel had provided ineffective assistance by failing to call Henry and Davis to testify at trial. Appellate Counsel raised the issue of whether trial counsel had provided ineffective assistance by failing to call Henry as a witness at trial, and we concluded that Richardson's trial counsel had not provided ineffective assistance in that regard. Richardson, 2007 WL 188973 at *7. To the extent that Richardson has attempted to claim for a second time that his trial counsel provided ineffective assistance for failing to call Henry to testify at trial, Richardson's claim is precluded by the doctrine of res judicata. See Timberlake, 753 N.E.2d at 597 (providing that if a claim was raised on direct appeal, but decided adversely, it is barred by the doctrine of res judicata).
[¶16] With regard to Davis, the post-conviction court noted that trial counsel had testified during the evidentiary hearing that
she and her co-counsel [had] interviewed these witnesses and determined that their stories were inconsistent, that they contradicted each other in important details. Consequently, she determined that calling them to testify at trial would have been tantamount to impeaching her own witnesses [i.e., Gibbs]. Additionally, based on the testimony of Det. Lehn, the Court finds specifically that Donald Davis's proffered trial testimony is completely inconsistent with statements he made shortly after the murder and so his testimony at the evidentiary hearing has virtually no credibility. Clearly, Davis'[s] testimony, with his inconsistent stories, the likelihood he'd impeach a more exonerating defense witness, his admissions he'd used crack that night, and his significant criminal history supports counsel's strategic decision. Accordingly[,] the court finds that Richardson has failed to make a clear showing of prejudice ... and consequently he has failed to meet his burden of proof.Appellant's App. Vol. V pp. 52-53. Upon review, we agree with the postconviction court.
[¶17] As we have previously stated, "in the context of an ineffective assistance claim, a decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess." Curtis v. State, 905 N.E.2d 410, 415 (Ind.Ct.App. 2009) (internal quotation omitted), trans. denied. Gibbs testified for the defense at trial that the operators of the drug house had not been looking for revenge on Graham and that Freeman had told her that she had been unable to identify the shooter on the night of the murder. After speaking with Davis, trial counsel determined that Davis's testimony would contradict Gibbs's testimony. We agree with the State that "[t]rial counsel was in the best position to talk to and observe the potential defense witnesses to gauge which potential witnesses a jury would be most likely to believe." Appellee's Br. p. 16; see generally Smith, 765 N.E.2d at 585 (providing that we defer to counsel's strategic and tactical decisions). Given her concerns that Davis's testimony would contradict another defense witness's testimony, we will not second-guess trial counsel's tactical decision to not call Davis to testify at trial. As such, we cannot say that the post-conviction court erred in finding that Richardson had failed to meet his burden of proof in this regard.
B. Nighttime Photographs
[¶18] Richardson next argues that the post-conviction court erred in denying his PCR petition because he had established that his trial counsel had provided ineffective assistance by failing to introduce nighttime photographs of the crime scene. Richardson raised an ineffectiveness claim relating to photographs of the crime scene on direct appeal, arguing that his trial counsel had provided ineffective assistance by failing to object to the admission of photographs taken at the crime scene during the daytime. In rejecting this claim, we noted that "[t]hroughout the trial, counsel consistently maintained and brought to the jury's attention that it was too dark for Freeman to have accurately perceived the events as they occurred or to have identified Richardson as the shooter." Richardson, 2007 WL 188973 at *7.
[¶19] Likewise, in denying Richardson's claim in the instant post-conviction proceedings, the post-conviction court found that
trial counsel stated that in fact she did investigate the nighttime lighting conditions at the crime scene and that the [sic] she felt that the State's crime scene video fairly and adequately depicted the lighting conditions and that obtaining alternate photographs would have been duplicative. The court has reviewed the State's crime scene video and photographs contained in the appellate record, and the Court agrees with trial counsel that they adequately portray the lighting at the crime scene. If trial counsel had attempted to introduce additional photographs or video, such as ones proffered at the evidentiary hearing, the Court finds that such evidence would likely have been excluded as duplicative. Even if such additional evidence had been admitted, the court finds it unlikely that such additional evidence would have had a "reasonable probability of affecting the result" of the trial. [Woods, 701 N.E.2d at 1214]; State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997). Therefore Richardson has again failed to meet his burden of proof.Appellant's App. Vol. V p. 53.
[¶20] Richardson does not challenge the post-conviction court's determination that photographs of the crime scene at night would have been duplicative of other evidence in the record. Given this unchallenged determination and our prior notation on direct appeal that counsel had consistently argued at trial that it had been too dark for Freeman to have identified Richardson as the shooter, we conclude that Richardson has failed to establish prejudice, i.e., that there is a reasonable probability that the outcome of his trial would have been different but for trial counsel's failure to introduce photographs of the crime scene at night. See Reed, 866 N.E.2d at 769 (providing that a petitioner may show prejudice by demonstrating that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different). As such, we cannot say that the post-conviction court erred in this regard.
C. Advising Richardson Not to Testify
[¶21] Richardson last argues that the post-conviction court erred in denying his PCR petition because he had established that his trial counsel had provided ineffective assistance by "failing to call him as a witness." Appellant's App. Vol. V p. 54. In finding that Richardson had failed to meet his burden of proof, the post-conviction court found that
trial counsel testified that she did not specifically remember her reasons for not calling the defendant, nor does she recall if he even wanted to testify; however, she stated that in every case, it was her invariable practice to discuss the issue with each client. [Trial counsel] testified she always advises her clients about the danger of opening the door to any bad behavior. Richardson essentially agrees with trial counsel's testimony, in that he does not allege that his trial counsel refused to allow him to testify, rather his claim is that trial counsel erred by advising him to forgo testifying. The Indiana Supreme Court stated that
counsel's decision to not have the defendant testify is a trial tactic that should not be second guessed on appeal. [Ford v. State, 523 N.E.2d 742, 747 (Ind. 1988)]. Most fundamentally, in this postconviction context, Richardson has not identified any specific testimony that he could have provided that was not presented to the jury through the direct testimony or cross-examination of other witnesses and thus he has not established how he was prejudiced by his trial counsel's clearly strategic decision to not have him testify.Appellant's App. Vol. V p. 54.
[¶22] As the post-conviction court indicated, "[t]he determination of whether a defendant should testify is a matter of trial strategy." White v. State, 25 N.E.3d 107, 134 (Ind.Ct.App. 2014) (citing Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998)), trans. denied. "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." Id. On appeal, beyond claiming his innocence, Richardson has not identified any specific testimony that he could have provided at trial that was not offered by his defense. As such, like the post-conviction court, we conclude that Richardson has failed to prove that he was prejudiced by trial counsel's decision not to call him as a witness at trial. As such, we cannot say that the post-conviction court erred in this regard.
Richardson raised a similar claim on direct appeal, arguing that his counsel had provided ineffective assistance by failing to inform him that he had the right to testify on his own behalf, arguing that "he would have testified on his own behalf had his counsel properly informed him of such right." Richardson, 2007 WL 188973 at *7. In rejecting this claim, we noted that there was "absolutely nothing in the record to support Richardson's claim that defense counsel improperly advised him about his right to testify or the possible benefits of doing so." Id.
[¶23] The judgment of the post-conviction court is affirmed.
Bailey, J., and Foley, J., concur.