McCary v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Steve Carter

Public Defender of Indiana Attorney General of Indiana

Anne-Marie Alward Christopher L. Lafuse

Deputy Public Defender Deputy Attorney General

Indianapolis, IN Indianapolis, IN

IN THE

SUPREME COURT OF INDIANA

BRIAN K. MCCARY, )

)

Appellant (Defendant Below), ) No. 49S02-0105-PC-00240

) In the Supreme Court

v. )

) No. 49A02-0004-PC-226

STATE OF INDIANA, ) In the Court of Appeals

)

Appellee (Plaintiff Below). )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Patricia J. Gifford, Judge

Cause No. 49G04-9309-CF-121825

January 18, 2002

SHEPARD, Chief Justice.

Appellant Brian McCary, who is serving a forty-year sentence

for attempting to kill a police officer, asks for a new trial. He contends

that his trial counsel was ineffective, but that question has already been

litigated and is res judicata against him. His claim that his appellate

counsel was ineffective is without merit. We affirm the denial of post-

conviction relief.

Facts and Procedural History

On the evening of September 20, 1993, Indianapolis Police Department

Officer Anthony Finnell was told at roll call to be on the lookout for a

particular blue and white Oldsmobile. As he began patrolling, Officer

Finnell spotted the car parked at a convenience store in the vicinity of

East 30th Street and North Sherman Drive. He watched as McCary and Antonio

Williams entered the car and drove away.

After following them for a short distance, Officer Finnell pulled the

vehicle over. McCary jumped from the car while it was still moving and ran

off. Finnell called for backup and began to handcuff Williams.

Finnell then heard gunshots coming from the spot where he had last

seen McCary. He dropped behind the Oldsmobile for protection, pulling

Williams down as well. After six shots were fired, Finnell drew his gun

and looked over the car. A man with a similar build and clothing to

McCary’s looked at Finnell and fled.

McCary ran to a nearby friend’s house. There, McCary said that he

had been followed by police, leapt from his car, and exchanged gunfire

after the police fired first.

The police apprehended McCary as he left the friend’s house in a

speeding car. McCary lied about his identity, but Williams was brought to

the arrest scene and positively identified McCary as the driver of the

Oldsmobile. Later that night at the police station, McCary told Officer

Finnell, “I wasn’t trying to hurt you.” (T.R. at 229.)

A jury found McCary guilty of attempted murder, a class A felony;[1]

resisting law enforcement, a class D felony;[2] and carrying an unlicensed

handgun, a class A misdemeanor.[3] The court sentenced him to concurrent

terms, with forty years on the lead charge.

McCary raised three claims on direct appeal, including ineffective

assistance of trial counsel. McCary v. State, No. 49A02-9412-CR-751,

memo. op. at 2 (Ind. Ct. App. Nov. 6, 1995). The Court of Appeals affirmed

the conviction.

In his post-conviction challenge, McCary focuses on ineffective

assistance of trial and appellate counsel. (Appellant’s Br. at 11-12.)

The post-conviction court rejected both claims. The Court of Appeals held

for McCary on both and reversed. McCary v. State, 739 N.E.2d 193, 201

(Ind. Ct. App. 2000). We granted transfer, and now affirm the post-

conviction court.

Post-Conviction Standard of Review

A post-conviction procedure is not an opportunity for a “super-

appeal.” Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind. 2000), cert.

denied, 122 S. Ct. 73 (2001). A petitioner who has been denied post-

conviction relief appeals from a negative judgment, and he must convince

the appellate court that the evidence as a whole leads unerringly and

unmistakably to a decision opposite that reached by the post-conviction

court. Prowell v. State, 741 N.E.2d 704 (Ind. 2001). In other words,

“[t]his Court will disturb a post-conviction court’s decision as being

contrary to law only where the evidence is without conflict and leads to

but one conclusion, and the post-conviction court has reached the opposite

conclusion.” Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert.

denied, 528 U.S. 1083 (2000) (citations omitted).

The High Hurdle for Ineffective Assistance Claims

A claim of ineffective assistance of counsel must satisfy two

components. Strickland v. Washington, 466 U.S. 668 (1984); accord Williams

v. Taylor, 529 U.S. 362, 390-91 (2000). First, 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. Id. at 687-88.

Second, 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. at 694.

Few points of law are as clearly established as the principle that

“[t]actical or strategic decisions will not support a claim of ineffective

assistance.” Sparks v. State, 499 N.E.2d 738, 739 (Ind. 1986). We afford

great deference to counsel’s discretion to choose strategy and tactics, and

strongly presume that counsel provided adequate assistance and exercised

reasonable professional judgment in all significant decisions. See

Strickland, 466 U.S. at 689-90.

Even the best and brightest criminal defense attorneys may disagree

on ideal strategy or the most effective approach in any given case. Id. at

689. Furthermore, “[i]solated mistakes, poor strategy, inexperience, and

instances of bad judgment do not necessarily render representation

ineffective.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citing

Bieghler v. State, 690 N.E.2d 188, 199 (Ind. 1997), cert. denied, 525 U.S.

1021 (1998)).

Effectiveness of Trial Counsel

McCary argued on direct appeal that his trial counsel was

constitutionally ineffective. McCary, memo. op. at 6. His argument

failed. Id. at 11. He raises this same issue again in his petition for

post-conviction relief. (Appellant’s Br. at 1.)

It has long been the rule that a defendant who raises a claim of

ineffective assistance of trial counsel on direct appeal is foreclosed from

subsequently relitigating that claim. Woods v. State, 701 N.E.2d 1208,

1220 (Ind. 1998), cert. denied, 528 U.S. 861 (1999). See also Sawyer v.

State, 679 N.E.2d 1328, 1329 (Ind. 1997)(“[The defendant], having once

litigated his Sixth Amendment claim concerning ineffective assistance of

counsel, is not entitled to litigate it again, by alleging different

grounds.”); Morris v. State, 466 N.E.2d 13, 14 (Ind. 1984)(“Notwithstanding

the fact that petitioner gave several additional examples of his counsel’s

alleged ineffectiveness during the post-conviction hearing, a consideration

of the ineffectiveness issue would constitute review of an issue already

decided on direct appeal.”).

McCary’s claim of ineffective assistance of trial counsel is res

judicata.

II. Effectiveness of Appellate Counsel

McCary next asserts that his appellate counsel was ineffective for

raising the issue of ineffective assistance of trial counsel on direct

appeal. McCary’s trial counsel did not call Officer Tracey Murphy as a

witness. (T.R. at iii-vii.) McCary asserts that his appellate counsel’s

failure to “develop[] a record to show what the officer would have

testified to . . . doom[ed] the claim to failure and depriv[ed] McCary of

an effective appeal.” (Appellant’s Br. at 11-12.)

This argument stems from the probable cause affidavit, which was

available to both trial and appellate counsel. It stated that Officer

Murphy, who was at home and off duty, heard shots and chased but then lost

“the suspect.” (T.R. at 21.) McCary’s defense was that he did indeed flee

the police, but did not shoot. (P-C.R. at 255-64.)

McCary’s appellate lawyer suggested that the man Officer Murphy saw

was most likely Aaron Blanche, whom the defense had portrayed at trial as

the probable shooter. (P-C.R. at 208-09, 259, 261.) The Court of Appeals

rejected this argument as speculative, though it turned out to be

correct.[4]

In Timberlake, 753 N.E.2d at 604, we described the burden a party

must establish for a claim of this type:

When 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, Timberlake’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.

Id. (citing Ben-Yisrayl v. State, 738 N.E.2d 253, 261-62 (Ind. 2000)).

Of course, we review appellate counsel’s effort in its totality when

considering whether a defendant received constitutionally adequate

assistance. Bieghler, 690 N.E.2d at 194. The forty-three-page brief filed

for McCary’s appeal raised three major issues: sufficiency of the

evidence, improper communication between the court and jury in McCary’s

absence, and ineffective assistance of counsel. (P-C.R. at 172-214.)

Under the heading of ineffective assistance, appellate counsel argued

that trial counsel was deficient in three respects: by (1) failing to

conduct an adequate investigation, (2) failing to interview and call

certain witnesses, and (3) failing to respond properly to the

communications between the court and jury during jury deliberations. (P-

C.R. at 286.) Appellate counsel also argued that another attorney

specially appointed to represent McCary during a hearing on a pro se motion

to correct error was ineffective.[5] (P-C.R. at 205, 289.)

The heart of McCary’s claim about his appellate lawyer is that

counsel should not have raised the issue of trial counsel’s ineffective

assistance during the direct appeal because insufficient facts were

available about Officer Murphy to make the claim. The brief from that

appeal, however, contradicts this argument:

Consideration of the affidavit for probable cause yields further

concern with regard to witnesses who were not summoned. The affidavit

states that an Officer Murphy who lives in the area heard the shots,

came out of his home, and gave chase to “the suspect”, losing him in

the “area of 2800 North Gale.” We know from McCary, Castle and Tamara

Johnson that her address was 3053 North Olney – north of 30th Street.

We also know that McCary’s flight began in the alley east of Sherman

and just a few doors south of 30th Street, technically in the 2900

block. We also know that Aaron Blanche had been in the area, had a

gun and turned up; shortly after the shooting, at LaToya Harrison’s

house at 2835 North Gale near the middle of the block where Officer

Murphy was said to have lost the suspect he was chasing – the area of

2800 Gale near 28th and Gale. The result of this analysis is the

question “Why didn’t Murphy testify?” His testimony, it would seem,

would have made clear, when taken with other evidence that was heard

by the jury, that it was improbable that the person Murphy saw was

McCary and, at the same time, more probable than not that the person

was Aaron Blanche, a man we know had a gun.

On the record available here, we cannot know why Murphy did not

testify nor why the matter was not raised on cross of the police

witnesses with knowledge of this case.

(Appellant’s Br. at 6-7) (internal citations omitted). McCary’s appellate

lawyer thus had a fair amount of evidence available on Murphy’s encounter.

The record also demonstrated to McCary’s appellate lawyer the

considerable effort trial counsel made in pointing to Blanche as the

perpetrator. For instance, the defense called Latoya Harrison, who lived

near the site of the attempted murder. (T.R. at 424.) She testified that

Blanche arrived on her doorstep that night, scared and covered with burrs

as if he had just run through bushes or a field. (T.R. at 425-26.)

Blanche used Harrison’s telephone twice, and Blanche gave Harrison’s friend

a handgun to keep for him until he picked it up early the following

morning. (T.R. at 426-29.)

Thus, the only fact about Officer Murphy that was not available when

the appellate lawyer chose to argue trial counsel’s ineffective assistance

was Officer Murphy’s confirmation during the post-conviction proceedings

that it was Blanche whom he had seen. This was, of course, a concrete

piece of additional information. But even McCary’s trial counsel,

testifying with the benefit of hindsight during the post-conviction

proceeding, thought it had so little probative value that he might not have

called Officer Murphy even if he had known it was Blanche Officer Murphy

had seen. [6]

The post-conviction court found that appellate counsel’s performance

did not deprive McCary of effective assistance of counsel on direct appeal.

The facts in this record do not point unerringly to the opposite

conclusion, the standard required for relief.

Conclusion

We affirm the denial of post-conviction relief.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

-----------------------

[1] Ind. Code Ann. §§ 35-41-5-1, 35-42-1-1 (1998).

[2] Ind. Code Ann. § 35-44-3-3(b)(1) (West 1998).

[3] Ind. Code Ann. § 35-47-2-23(c) (West 1998).

[4] The Court of Appeals said:

McCary has failed to set forth the prospective results of a more

thorough investigation. McCary speculates as to what certain

witnesses may have said if they had been interviewed and acknowledges

that “[p]erhaps trial counsel interviewed these witnesses and found

nothing, so elected not to explore the matter, but perhaps he did not.

On the record available here, we cannot know.” Having failed to

demonstrate what a more thorough investigation would have revealed,

McCary has failed to establish that he suffered prejudice as a result

of the allegedly inadequate investigation, and his claim of

ineffective assistance of counsel in this regard is without merit.

McCary contends that trial counsel rendered ineffective assistance in

failing to call certain witnesses at trial. Beyond mere speculation,

McCary has not set forth favorable testimony that would have been

elicited from persons who were not called as witnesses. Therefore, as

with the first allegation of ineffective assistance, McCary has not

demonstrated that he was prejudiced by the charged defects.

McCary, memo. op. at 7 (internal citations omitted). At the post-

conviction proceeding, Officer Murphy verified that the man he saw with a

gun that night was, indeed, Blanche. (P-C.R. at 141, 144, 153.)

[5] In the motion, McCary claimed that the prosecution should have

disclosed the results of a police-administered gunshot residue test, but

the only evidence of such a test was McCary’s own word, which was not

enough. (P-C.R. at 205, 289.)

[6] McCary’s trial attorney testified at the post-conviction proceeding as

follows:

Q. Did you interview Officer Murphy?

A. No.

Q. Had you discovered that Officer Murphy had seen a suspect coming

from the field in the alley with a gun and that he could identify

that person and that that person wasn’t McCary, is it fair to say

you would have called him as a defense witness?

A. Not necessarily.

Q. Would you explain your answer?

A. Why? It’s 30th and Sherman and a guy was found with a gun only in

the general area. I mean, how many guns do you think are there in

that area. I don’t know that there’s much connection.

Q. Okay. Had you known that Officer Murphy could identify Mr. Blanche

as the individual that he saw in the alley, would that change your

answer?

A. Well I think [McCary] testified that th[ere] might have been a guy

who had a gun in the area and so we presented it that way.

Q. Yes. So is it fair to say that if your client’s position it’s not

me, it’s Mr. Blanche and you have a police officer who’s willing to

say he saw Mr. Blanche with a gun running from the field in the

alley matching the description, are you telling this Judge that you

would not have called Officer Murphy as a defense witness?

A. I’m saying it didn’t make that much difference.

Q. Pardon me.

A. I’m saying it didn’t make that much difference.

[MCCARY’S ATTORNEY]: Okay. That’s all I have.

CROSS-EXAMINATION, QUESTIONS BY [STATE]:

Q. Mr. Rose, that last answer suggests to me -- please correct me if

I’m wrong, that you concluded as a matter of strategy or tactics

that there was no solid value in pursuing Officer Murphy as a

witness?

A. Not particularly.

Q. Is it a fair statement that you assessed his value as simply one

who could say he saw some other individual with a gun in the same

general geographic area as the incident your client was charged

with?

A. That’s right.

Q. You did make argument on that matter and bring light to that matter

at trial in this cause, did you not?

A. Yeah.

(P-C.R. at 160-62.) Even knowing that Murphy had seen Blanche did not

impress McCary’s trial counsel.