Maximilian Spiegel v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

FILED

Pursuant to Ind. Appellate Rule 65(D), Dec 08 2016, 9:05 am

this Memorandum Decision shall not be

CLERK

regarded as precedent or cited before any Indiana Supreme Court

Court of Appeals

court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Scott L. Barnhart Gregory F. Zoeller

Brooke Smith Attorney General of Indiana

Keffer Barnhart LLP

Angela N. Sanchez

Indianapolis, Indiana Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Maximilian Spiegel, December 8, 2016

Appellant-Defendant, Court of Appeals Case No.

49A02-1604-PC-773

v. Appeal from the Marion Superior

Court

State of Indiana, The Honorable Anne Flannelly,

Appellee-Plaintiff. Magistrate

Trial Court Cause No.

49G04-1108-PC-60510

Bailey, Judge.

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Case Summary

[1] Appellant-Petitioner Maximilian Spiegel (“Spiegel”) appeals the denial of his

petition for post-conviction relief, following his conviction for Child Molesting.

He presents the issue of whether he was denied the effective assistance of trial

counsel. We affirm.

Facts and Procedural History

[2] The relevant facts were recited by a panel of this Court on direct appeal, as

follows:

In April 2011, eighteen-year-old P.L. wrote a letter to her older

sister C.H., alleging that P.L. had been molested by “Uncle

Max” since she was in first grade and that the abuse had just

recently stopped. C.H. showed the letter to her mother, who

then telephoned her sister, Spiegel’s wife. Spiegel was referred to

as “Uncle Max.” Spiegel also spoke to P.L.’s mother during that

call, was crying, was extremely upset, and repeatedly threatened

to kill himself, but he did not deny P.L.’s allegations.

P.L.’s mother then informed P.L.’s father, J.L., of the

allegations. J.L. had previously been convicted of and

incarcerated for molesting his step-daughter, C.H. J.L.

telephoned Spiegel, who initially denied the allegations.

Subsequently, though, Spiegel stated that he “did do it” and was

“sorry for what he had done.”

At the time of P.L.’s allegations, C.H. worked for the Indiana

Department of Child Services. Spiegel telephoned C.H. several

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times beginning in May 2011. He inquired about DCS

procedures and what would happen next, said he would admit

what he had done, and apologized. During that time, Spiegel

also sent several text messages to C.H. In the texts, Spiegel said

he had “hurt everybody so bad[ly],” Exh. 9; apologized; and said

he was in three kinds of therapy. And in June, Spiegel asked

C.H. to encourage her mother and sister not to press criminal

charges. He offered to make “retribution in the form of gifts”

such as “paying for college or buying a vehicle for P.L.”

The State charged Spiegel with two counts of child molesting, as

Class A felonies, and one count of sexual misconduct with a

minor, as a Class B felony. The court held a jury trial on July 2,

2012. P.L. testified that she could not estimate how many times

Spiegel had molested her, but she testified that it began when she

was in first grade and continued for years. For example, she gave

details of two occasions when she was seven years old when

Spiegel blindfolded her and forced her to perform oral sex on him

in exchange for candy. She also described an occasion when she

was in eighth grade in which Spiegel picked her up on the

pretense of taking her to buy tennis shoes as a reward for her

team winning a championship. They stopped at his house, and

he asked her to come in. He turned the television on for her, and

pornography was playing. He left the room for a couple of

minutes, and, when he returned, he pulled his penis out. She

said she did not feel well, but he prayed over her and then made

her perform oral sex on him. Finally, P.L. described a particular

occasion when she was playing Barbie dolls with her cousin at

Spiegel’s house when Spiegel called to her from his bedroom.

P.L. went to the bedroom and found Spiegel lying on the bed

with his penis exposed through the zipper of his jeans. He stood

and instructed her to kneel and had her perform oral sex on him.

Spiegel also testified at trial. The prosecutor asked whether he

knew why his family believed P.L.’s allegations, and Spiegel

answered that he did not know. In response, the prosecutor

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commented, “You’re a good liar.” The trial court sustained

Spiegel’s objection and request to strike, and when he requested

that the court admonish the jury, the trial court stated, “so

admonished.” The trial court denied Spiegel’s request for a

mistrial.”

Later, in its rebuttal to closing argument, the State made the

following comment: “If you decide not to believe P.L., you go

back and deliberate and when you’re done you say, [‘]We

believed her but we needed more evidence,[‘] we might as well

just tell our children to just take it and shut up because that’s

what you’ll be saying.” Spiegel objected on the ground that it

was improper to “argue about … the effect on the community[.]”

The trial court responded that the statement was made during

closing argument and was not evidence, overruling the objection.

Subsequently in closing argument, the State referred to P.L.’s

father, who had previously been convicted of child molesting,

had gone to prison, and had been “set free in prison because it

changed his life when he went to prison” and “healed” him.

Then, referring to Spiegel, the prosecutor said, “That’s what

we’re asking for the defendant. We’re asking you to send a

message that he can live his life differently.” The trial court

overruled Spiegel’s objection. Finally, the prosecutor also said,

“You can’t be set free by hiring an attorney to get you off when

you know you’ve done wrong.” The trial court sustained

Spiegel’s objection and request to strike, and the prosecutor then

stated, “Oh, no; he has a right to counsel. Absolutely. I would

never want to do this without an attorney sitting over there.”

During deliberations, the jury sent two questions to the trial

court:

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1. Did the molestation have to occur between July 1999 and

June 2000 or (Rule/Instruction 5a) could the molestation

occur at any time prior to her turning 14.

2. Define “on or about.” How much time can be added to the

time frame July 19, 1999[,] and June 18, 2000.

Appellant’s App. at 101. The trial court discussed the

appropriate response with the parties. Spiegel initially objected

“to the entire process” on the ground that there was no difference

between the evidence at trial and the charging information 1 and,

therefore, an additional instruction was neither necessary nor

appropriate. The trial court noted the objection for the record but

did not rule on it. Initially, the trial court did not agree with the

State that there was a difference between the evidence and the

charging information. However, after further discussion, the trial

court concluded that there was a difference and that an

additional instruction was necessary. The court then determined

the language to be used in answering the jury questions and

discussed the method of communicating that to the jury:

The Court: You want me to tell them there’s a new instruction

when they come back out or do you just want to give it to them

without reading all this?

[State]: I would defer to [defense counsel] and what he feels

comfortable with.

1

At trial P.L. testified to multiple incidents of abuse by Spiegel spanning several years. At the close of

evidence, the State dismissed two counts, leaving only one count that charged Spiegel for molesting P.L. over

a span of dates when she was approximately seven years old. Spiegel argued to the trial court that any

confusion occasioned by the jury regarding dates, which was the basis for the jury question, arose after the

State dismissed the other two counts and, therefore, was the State’s own fault.

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[Defense]: Judge, I think – I think we add a new instruction,

we give them their instructions and –

The Court: Let them go back?

[Defense]: Let them go back.

The Court: Okay. Let’s make copies. When they come out –

[State]: Not read them to them? Is that what you’re saying,

you don’t need them read to the jurors?

The Court: I don’t need them read to the jurors. I mean, as

long as they have the instruction.

[State]: And as long as they know that there’s a new

instruction in there?

The Court: I’m just going to say we’ve reviewed your question

and we’ve come to a decision, all parties, concerning an answer

to your question or questions. There’s an additional 5B1

instruction in your packet of which [sic] you were just given.

This becomes part of your final – this becomes your preliminary

instructions additional [sic]. Please go back and deliberate.

Okay?

[Defense]: That procedure’s fine with me.

[State]: Fine with the State.

The Court: Okay? (court confers with staff.)

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[Defense]: Well, well –

The Court: You said that’s okay. Given [sic] them a copy of

the new instruction –

[Defense]: The new – the instructions. I think the issue is

handing them this instruction by itself is drawing – is the drawing

attention that I had concern about. Telling the jurors here’s the

instruction, you put it back in your packet, that’s – that’s the

drawing attention that I’m concerned about. I think – I think

they – they should be – the instructions should be inserted and

they should be given all the instructions.

The Court: (Court confers with staff.) All right, we’ll just make

copies and reinsert them.

JURY RETURNS TO THE COURTROOM

The Court: . . . In response to your question, the Court

responds as follows: There is an additional instruction in your

Court’s preliminary instruction booklet number 5A1. Continue

to deliberate. Good luck.

After deliberating further, the jury found Spiegel guilty of child

molesting, as a Class A felony. The trial court entered judgment

of conviction and sentenced Spiegel accordingly.

Spiegel v. State, No. 49A02-1208-CR-687, slip op. at 2-6, (Ind. Ct. App. April 18,

2013). (transcript citations omitted.)

[3] Spiegel appealed, raising two issues: whether the prosecutor’s statements made

during cross-examination and closing argument constituted prosecutorial

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misconduct and whether the trial court abused its discretion when giving the

jury the additional instruction after deliberations had already begun. Slip op. at

2. A panel of this Court affirmed the conviction. Id. More specifically, this

Court concluded that: the prosecutor did commit misconduct when she called

Spiegel a good liar because attorneys are not permitted to offer a personal

opinion as to credibility; the comment did not subject Spiegel to grave peril in

light of the abundance of evidence of his guilt; Spiegel lacked cogent reasoning

to demonstrate fundamental error related to the prosecutor’s other objectionable

comments; and Spiegel did not preserve the jury instruction issue for review,

because he objected on one ground at trial and relied on a different ground on

appeal and he also invited alleged error. Id. at 8-11.

[4] Beyond that, the Court “expressed [the] belief” that certain comments

constituted misconduct. Id. at 10. The reference to telling the children to shut

up was not based upon the evidence and appeared to the Court to be an attempt

to play on the fears of the jurors. Id. Suggesting that Spiegel might be healed in

prison was an impermissible comment on possible penal consequences. Id.

Finally, the prosecutor should not have highlighted the disparate roles of

prosecutor and defense attorney. Id. at 11.

[5] Spiegel filed a petition for post-conviction relief on April 17, 2014, alleging

ineffectiveness of trial and appellate counsel. An evidentiary hearing was

conducted on February 24, 2015, at which Spiegel’s trial and appellate counsel

testified. On March 15, 2016, the post-conviction court entered its findings of

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fact, conclusions of law, and order denying Spiegel post-conviction relief. This

appeal ensued.

Standard of Review

[6] The petitioner in a post-conviction proceeding bears the burden of establishing

the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing

from the denial of post-conviction relief, the petitioner stands in the position of

one appealing from a negative judgment. Id. On review, we will not reverse

the judgment of the post-conviction court unless the evidence as a whole

unerringly and unmistakably leads to a conclusion opposite that reached by the

post-conviction court. Id. 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. Id. In this review,

findings of fact are accepted unless they are clearly erroneous and no deference

is accorded to conclusions of law. Id. The post-conviction court is the sole

judge of the weight of the evidence and the credibility of witnesses. Id.

Effectiveness of Trial Counsel

[7] Spiegel contends he was denied the effective assistance of trial counsel in four

respects: trial counsel (1) failed to adequately challenge statements made by the

deputy prosecutor during closing argument; (2) failed to object when P.L.’s

father was asked about having special expertise; (3) failed to object to the

procedure by which the jury was given an additional instruction during

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deliberation; and (4) failed to adequately challenge inappropriate commentary

on the part of the deputy prosecutor over the course of the trial.

[8] Effectiveness of counsel is a mixed question of law and fact. Strickland v.

Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

of ineffective assistance under the two-part test announced in Strickland. Id. To

prevail on an ineffective assistance of counsel claim, a defendant must

demonstrate both deficient performance and resulting prejudice. Dobbins v.

State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

Deficient performance is that which falls below an objective standard of

reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that

“there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

1996). The two prongs of the Strickland test are separate and independent

inquiries. Strickland, 466 U.S. at 697. 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.

[9] We “strongly presume” that counsel provided adequate assistance and

exercised reasonable professional judgment in all significant decisions. McCary

v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

considerable discretion in the choice of strategy and tactics. Timberlake v. State,

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753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the

facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring

reasonable professional judgment even if the strategy in hindsight did not serve

the defendant’s interests. Id. In sum, trial strategy is not subject to attack

through an ineffective assistance of counsel claim, unless the strategy is so

deficient or unreasonable as to fall outside the objective standard of

reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).

[10] Initially, Spiegel contends that the jury was “poisoned by comments” and his

trial counsel was ineffective for failure “to object or appropriate[ly] respond to

the deputy prosecutor’s unacceptable advocacy.” Appellant’s Brief at 15-16.

He further contends: “had trial counsel objected at various points during the

deputy prosecutor’s closing arguments, it would have or should have been

sustained.” Appellant’s Brief at 16. However, as the State points out, Spiegel

fails, in the corresponding argument, to direct our attention to specific instances

where counsel remained silent.

[11] Spiegel briefly summarized the four instances of prosecutorial misconduct

discussed by this Court on direct appeal. To the extent that he claims his

defense counsel acquiesced, the record does not support this contention. When

the deputy prosecutor called Spiegel “a very good liar,” counsel immediately

objected, made a successful motion to strike, and obtained a jury

admonishment. (Tr. at 319.) When the deputy prosecutor claimed “we might

as well just tell our children to just take it and shut up,” defense counsel

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objected and argued, albeit unsuccessfully, that it was improper argument about

effect upon the community. (Tr. at 396.) When the deputy prosecutor urged

the jury that prison could bring “healing” and she was asking that for the

defendant, defense counsel again objected. (Tr. at 399.) When the deputy

prosecutor argued, “You can’t be set free by hiring an attorney to get you off

when you know you’ve done wrong,” defense counsel objected and the trial

court ordered the commentary stricken. (Tr. at 407.) Indeed, as the post-

conviction court concluded, the record is replete with instances in which

defense counsel challenged the deputy prosecutor’s advocacy. A bald assertion

that defense counsel was not vigorous enough in opposing the State does not

adequately support a claim of ineffectiveness. See Woodson v. State, 961 N.E.2d

1035, 1041-42 (Ind. Ct. App. 2012) (“Strickland does not guarantee perfect

representation, only a reasonably competent attorney.”) (citation and quotation

marks omitted).

[12] Spiegel also contends that trial counsel was ineffective when he failed to object

or move for a mistrial after the deputy prosecutor asked P.L.’s father, J.L.,2

about his “special experience with these kinds of allegations.” (Tr. at 193.)

According to Spiegel, his counsel should have prevented the State’s elicitation

of opinion testimony by a lay witness not qualified under Indiana Evidence

2

We observe that J.L. is referred to in the trial transcript only by initials.

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Rule 701 or expert testimony by an expert witness not qualified under Evidence

Rule 702.

[13] Evidence Rule 701 provides:

If a witness is not testifying as an expert, testimony in the form of

an opinion is limited to one that is:

(a) rationally based on the witness’s perception; and

(b) helpful to a clear understanding of the witness’s testimony or

to a determination of a fact in issue.

[14] Evidence Rule 702 provides:

(a) A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of

an opinion or otherwise if the expert’s scientific, technical, or

other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue.

(b) Expert scientific testimony is admissible only if the court is

satisfied that the expert testimony rests upon reliable scientific

principles.

[15] With this legal background, we look to the testimony actually elicited from J.L.

When asked to describe his “experience” to the jurors, J.L. responded: “My

experience with this is that I did three and a half years in prison for the same

charges that Max is being charged with.” (Tr. at 193.) When J.L. was asked to

describe his experience in prison, defense counsel objected, but was overruled.

J.L. continued:

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First of all, when I went – first went, I was in total denial. A lot

of guilt – a lot of guilt. A lot of fear. Then I got involved in the

program in prison for people with my charges. … They held me

accountable.

(Tr. at 194.) Despite defense counsel’s continued objections as to relevance,

J.L. went on to testify that he had stayed out of trouble and reconciled with his

family. According to J.L., his past experience enabled him to speak to Spiegel

“in an understanding way” and urge Spiegel to “be truthful” so that “healing”

could begin. (Tr. at 196.)

[16] Spiegel claims the jury was invited to infer that, because J.L. was a convicted

child molester, he could identify Spiegel as such. However, J.L. did not offer

an “opinion” as to Spiegel’s guilt or innocence. His testimony of his own

personal experience was irrelevant to the determination of a fact in issue –

something which did not go unchallenged by defense counsel.

[17] J.L.’s testimony culminated with his describing admissions made by Spiegel

(that he “was sorry for what he had done,” that “he did do it” and he was

“meeting with his pastor and going through counseling.”) (Tr. at 197.) While

this was relevant as evidence tending to show Spiegel’s consciousness of guilt, it

is not opinion testimony. Spiegel has not shown that defense counsel failed to

challenge the admission of improper opinion testimony.

[18] Spiegel also claims that his trial attorney was ineffective for failing to object to

“the procedure and manner in which an instruction was given to the jury after

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deliberations had begun.” Appellant’s Br. at 20. During deliberations, the jury

asked two questions:

1. Did the molestation have to occur between July 1999 and

June 2000 or (Rule/Instruction 5A) could the molestation

occur at any time prior to her turning fourteen.

2. Define “on or about.” How much time can be added to the

timeframe July 19, 1999 and June 18, 2000.

(Tr. at 445-46.) A lengthy bench conference ensued, at which defense counsel

objected that additional instruction was unwarranted. After the trial court

decided that a new instruction would be given, defense counsel lodged a

continuing objection to giving the instruction but acquiesced to a particular

procedure. The juror’s instruction packets were collected and a new written

instruction was inserted. The trial court advised the jury: “There is an

additional instruction in your Court’s preliminary instruction booklet numbered

5A1.3 Continue to deliberate. Good luck.” (Tr. at 446.) 4

[19] Indiana Code § 34-36-1-6 provides:

If, after the jury retires for deliberation:

3

The trial court had also referenced the new instruction as 5B and 5B1.

4

The content of the additional instruction was discussed at some length, with the trial court refusing some

language proffered by the State. It appears that the jury was instructed: “When time is not an element of a

crime or ‘of the essence of the offense’ the State is only required to prove that the offense occurred anytime

within the statutory period of limitations. The State is not required to prove the offense occurred on the

precise date alleged in an information.” (Tr. at 433.)

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(1) there is a disagreement among the jurors as to any part of the

testimony; or

(2) the jury desires to be informed as to any point of law arising

in the case;

the jury may request the officer to conduct them into court,

where the information required shall be given in the presence of,

or after notice to, the parties or the attorneys representing the

parties.

[20] Once deliberations commence, the trial court should not give additional

instructions. Crowdus v. State, 431 N.E.2d 796, 798 (Ind. 1982). The rule exists

to prevent the trial court from giving special emphasis to a particular issue in

the case, whether the emphasis is inadvertent or otherwise. Id. Only where

there is a “legal lacuna,” an empty space or gap in the law, may the trial court

respond by means other than rereading the body of final instructions. Dowell v.

State, 973 N.E.2d 58, 60 (Ind. Ct. App. 2012). If the trial court decides to give

an additional instruction because a jury question relates to a legal lacuna, the

trial court must reread all of the instructions so that the additional instruction

will not be over-emphasized. Id.

[21] Here, even assuming a legal lacuna, the trial court did not reread all instructions

so as to alleviate emphasis on one. Although defense counsel mentioned at one

point: “I think the proper response is reread the instructions,” (Tr. at 412), and

later re-iterated “we would want it done that way,” (Tr. at 432), he did not

continue to insist upon follow-through with this procedure after the trial court

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decided to give a new instruction. Thus, Spiegel arguably did not receive

optimal representation in this matter. Nonetheless, to prevail upon his claim of

ineffectiveness, Spiegel must also show that he suffered prejudice, that is, a

reasonable probability of a different result sufficient to “undermine confidence

in the outcome” of the trial. Strickland, 466 U.S. at 694.

[22] Our review of the record leads us to conclude that there is not a reasonable

probability that Spiegel would have been acquitted had his defense counsel

insisted upon rereading of all instructions. P.L. testified that Spiegel had

molested her on multiple occasions, beginning when P.L. was in first grade.

P.L.’s mother testified that she confronted Spiegel and he became hysterical and

threatened suicide; however, he did not deny the allegation. P.L.’s father

testified that Spiegel admitted to molesting P.L., expressed remorse, and

claimed to be in counseling to address his behavior. P.L.’s sister testified that

she had communicated with Spiegel and he had assured her that he intended to

take responsibility for his actions and spare the family a trial. According to

P.L.’s sister, Spiegel encouraged her to influence P.L. not to pursue a criminal

conviction and offered to pay for P.L.’s tuition and a vehicle. Finally, the State

introduced into evidence various text messages from Spiegel to P.L.’s sister,

asking for mercy and forgiveness and offering financial incentives. In light of

this evidence, trial counsel’s failure to secure the rereading of all instructions

does not constitute prejudice within the dictates of Strickland.

[23] Finally, Spiegel argues that he is entitled to a new trial because of his counsel’s

cumulative failures to object and follow up with requests for admonishment and

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mistrial. However, our review of the record as a whole leads to the conclusion

that counsel’s performance did not fall below reasonable professional norms.

During the presentation of evidence, trial counsel was placed in a very difficult

position by testimony of Spiegel’s admissions to and communications with

P.L.’s family members. Moreover, although counsel did not object at every

conceivable juncture, he frequently objected to commentary, argument, or

questions propounded to witnesses. Trial counsel’s efforts and strategy,

although they did not ultimately achieve the result desired by Spiegel, were not

so unreasonable as to constitute ineffective assistance of counsel. See also Badelle

v. State, 754 N.E.2d 510, 539 (Ind. Ct. App. 2001) (deciding in relevant part

that, when trial counsel’s efforts were “more than adequate” to support a

chosen defense, trial counsel’s decision not to seek out additional witnesses was

a judgment call within the wide range of reasonable assistance), trans. denied.

Conclusion

[24] Spiegel did not establish that he was denied the effective assistance of trial

counsel.

[25] Affirmed.

Najam, J., and May, J., concur.

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