Pennycuff v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Jodi Kathryn Stein Karen M. Freeman-Wilson

Marion County Public Defender Attorney General of Indiana

Agency

Indianapolis, Indiana

Timothy W. Beam

Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

TERRY PENNYCUFF, )

)

Appellant (Defendant Below), ) 49S02-0104-CR-213

) in the Supreme Court

v. )

) 49A02-9902-CR-117

STATE OF INDIANA, ) in the Court of Appeals

)

Appellee (Plaintiff Below). )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Tanya Walton Pratt, Judge

Cause No. 49G01-9606-CF-088754

April 18, 2001

SHEPARD, Chief Justice.

A jury found appellant Terry Pennycuff guilty on two counts of

incest, three counts of child molesting, and one count of sexual misconduct

with a minor for carrying on a sexual relationship with his teenage

daughter over a three-year period. The Court of Appeals ordered a new

trial, holding that Pennycuff’s lawyer was ineffective for failing to

object to evidence that violated Pennycuff’s rights under Doyle v. Ohio.[1]

Pennycuff v. State, 727 N.E.2d 723 (Ind. Ct. App. 2000).

We conclude that the caselaw points to a different outcome.

How Pennycuff’s Trial Unfolded

The State’s first witness at trial was Pennycuff’s daughter, T.P.

(R. at 225.) T.P. described in detail numerous sexual advances by, and

contacts with, her father. (R. at 227-38, 244-54, 257-58.) Among other

things, T.P. accused her father of videotaping and photographing her in the

nude on two separate occasions. (R. at 233-34, 246.) She testified that

her father gave her money after some of their sexual encounters. (R. at

228, 234, 244.) She also said that some of these incidents occurred at

home while her brother was in another room, (R. at 245), although no one

besides herself actually witnessed any of the occurrences.

T.P. testified that Pennycuff had written words and initials on

certain pages of a calendar to memorialize some of these incidents. (R. at

250-51, 253-54.) For example, she testified that early on Christmas

morning in 1995, she had intercourse with her father before they woke her

brother and sister, and that Pennycuff entered an “I” in the calendar to

document the occurrence. (R. at 252-53.)

T.P. explained that she kept silent about her father’s misconduct

because he told her she could be jailed for prostitution, and that he would

kill them both if she spoke. (R. at 248-49.) She eventually disclosed

what had been going on because her father, by then divorced from T.P.’s

mother, described his new girlfriend’s daughter as “cute.” (R. at 260.)

T.P. became concerned for the safety of that child and of her own eight-

year-old sister. (Id.) T.P. testified that she got along well with this

new girlfriend. (R. at 256.) Regarding her relationship with her

father, T.P testified:

Q. [T.P.], how do you feel about your dad right now?

A. I love him.

Q. You still love him?

A. (No audible answer.)

THE COURT: You have to answer yes or no.

A. Yes.

Q. Is there any anger?

A. Yes.

Q. Why?

A. Because I want him to pay for what he did to me. I want him to

stop lying. I wish he’d tell the truth.

(R. at 263.)

On cross-examination, the defense methodically sought to undermine

T.P.’s credibility by delving into T.P’s relationship with each of her

parents. T.P.’s father first had inappropriate sexual contact with her in

May 1993. (R. at 226.) When her parents separated in October 1994,

however, T.P. elected to stay with her father (although her brother and

sister lived with their mother) because she and her mother did not get

along and even physically fought at times. (R. at 270, 280.) Appellant

Pennycuff got custody of T.P. and her brother in April 1995, but T.P. moved

back in with her mother during the summer of 1995 to avoid further

molestation by her father. (R. at 283.) However, T.P., who admitted to

being “rebellious,” (R. at 270), again quarreled with her mother, (R. at

284-85), and moved back in with her father in the fall of 1995, (R. at

286). Subsequently, T.P.’s relationship with her mother improved, although

T.P. still did not confide in her mother about the molestation for another

month or two. (R. at 296-97.)

After establishing this sequence of events, defense counsel asked

T.P., “During this period of time—you—you have always kind of just

vacillated between your mother and father, whichever—depending upon

whichever person kind of treated you the best; is that right?” (R. at 299-

300.) T.P. replied, “Yes.” (R. at 300.) Defense counsel went on to

establish that four months after T.P.’s accusations, T.P. paged her father

because she and her mother were fighting. (Id.) T.P. asked her father to

come over to her mother’s house where T.P. was staying, which he did. She

asked her father to take her home with him, but he declined because he was

under a no contact order. (R. at 301-02.)

The defense also attacked T.P.’s claim that her father paid her for

sex by eliciting admissions that T.P. helped with housework, (R. at 308),

and that he had given her money at times before the molestation began, (R.

at 307).

The State’s next witness was T.P.’s brother, who is a year and a half

younger than she. (R. at 225, 323.) He testified that Pennycuff sometimes

went into another room with T.P., and ordered the boy to stay in the living

room. (R. at 326-27.) He also testified that, although he had no

knowledge of any sexual relationship between Pennycuff and T.P., Pennycuff

had sometimes given T.P. money. (R. at 327.)

On cross-examination, the defense sought to elicit testimony from the

brother that T.P. disliked their father’s new fiancée, Jane, and had

threatened to ruin the planned wedding. (R. at 331.) The boy

acknowledged that T.P. had expressed dislike for Jane, but he denied having

heard T.P. make any such threat. (Id.)

The State next called Marion County Sheriff’s Department Detective

Sergeant Carmie Godan. (R. at 333.) Detective Godan testified about

T.P.’s demeanor when she gave her initial statement. (R. at 336.)

Detective Godan described T.P. as confused and embarrassed, and said that

T.P. blamed herself for the relationship. (Id.) Godan also testified

that, during a search of Pennycuff’s apartment, police found the calendar

that T.P. described. (R. at 340.)

On cross-examination, Godan conceded that during their search the

police found no videotape or photographs showing T.P. nude. (R. at 355-

56.) Defense counsel also established that Pennycuff had no advance

warning of the search. (R. at 358.)

The State then called T.P.’s mother, who testified that the night

T.P. disclosed what Pennycuff had done, T.P. was upset and afraid of going

to jail. (R. at 390.) She said Pennycuff had given T.P. money at times

and that, when asked, he said he had paid T.P. for helping with various

household chores. (R. at 391-92.)

On cross-examination, T.P.’s mother admitted that before T.P. accused

Pennycuff of sexual misconduct, the mother herself had twice broached the

subject of molestation. (R. at 397-98.) The first time was during custody

negotiations, when the mother asked T.P. if her father had ever touched her

and T.P. responded that the mother was crazy for asking such a question.

(Id.) Then, about a year before her divorce, the mother asked T.P. in the

presence of a therapist whether there had been any molestation, and T.P.

said no. (R. at 398.)

The State’s final witness was a psychiatric social worker, (R. at

405), who testified about T.P.’s demeanor during their meetings, (R. at

407), and said that children who are sexually abused by a family member

rarely come forward immediately, (R. at 408).

When the State rested, then, the testimony of T.P. stood as the

centerpiece of its case. Pennycuff’s counsel managed to plant the seeds

for a defense focused on T.P.’s credibility.

To do this, the defense presented two witnesses: Pennycuff and his

second wife Jane (whom he married the same day that he was later served

with the search warrant based upon T.P.’s accusations). (R. at 417-18.)

Jane testified that she and Pennycuff had accelerated their wedding date,

and married in Louisville rather than locally, because of T.P.’s threats to

ruin the wedding. (R. at 418-19.) She also testified about the lock box

in which the calendar was found:

Q. And the lock box. Did [Detective Godan] ask [Pennycuff] for

the keys to this box?

A. I don’t know if it was her, but one of the detectives ask him

for the key.

Q. Did he cooperate?

A. Yes, he did.

Q. Give her the keys and everything?

A. Yes.

Q. All right.

A. He told them he had nothing to hide. That they could search

his apartment all they wanted to, that he had nothing to hide.

(R. at 421-22.)

On cross-examination, Jane admitted that she got along well with T.P.

and that T.P. had never directly told Jane that she disliked Jane or

opposed her marriage to Pennycuff. (R. at 427.)

Pennycuff then testified, to refute his daughter’s allegations. (R.

at 438.) He began by saying he had never been arrested prior to these

events, and had always maintained employment and supported his family. (R.

at 440.) He testified he had paid his daughter for helping around the

house, but never had a sexual relationship with her or paid her for sex.

(R. at 444.) Credibility and cooperation were part of Pennycuff’s theme on

direct examination:

Q. The night that the detectives came into your home and executed

a search warrant, that same day did Detective Godan take a

statement from you?[2]

A. Yes, she did.

Q. Did she ask you about any of these allegations that you’ve

heard about at the trial here?

A. Yes, she did. She sat at the table and did a—a little cassette

tape.

Q. And what did—

A. And see if I was going to do one. And I was having a sugar

attack.[3] I—I was in and out, kind of, you know, shaky and

dizzy. I had some stuff. I don’t remember it happening.

Q. All right. But you did cooperate and you did give a statement;

is that correct?

A. Yes, I did.

Q. You had nothing to hide? You said—

A. No, I told her I had nothing to hide in my apartment.

Q. And you—and you told her—and you answered every question she

asked you; is that correct?

A. Yes, I did.

Q. What did—what did you tell her that day regarding

whether—whether or not you had any sexual relationship?

A. Well she asked me if I’d had sexual relations with my daughter.

I told her, no, I didn’t.

Q. Did she ask you why she thought—why you thought your daughter

would—would make these allegations?

A. Yes, she did. Why would your daughter have these charges

against you if you hadn’t of been doin’ it to her.

Q. What did you say?

A. And I told her that the reason was that she wanted to be

emancipated and she’d asked me two or three times if she could

be emancipated so she could live with her mother. And I told

her she can go live with her mother all she wanted, but I had

custody of her. If she wanted to be emancipated then I was the

one that had to do it if she, you know, wanted out on her own.

And I told her, no, she wasn’t gonna run the streets on her own.

She wasn’t old enough and she wasn’t workin’.

(R. at 445-46.) He later testified about an exchange that occurred three

days before T.P. made her accusations:

[T.P.] said, yes, me and my mother are goin’ to ruin your wedding.

She said, why should you be happy if you won’t let me go out and be

happy on my own. I said, [T.P.], I told you you can go live with your

mom I said. And she said, well, she said, you know, more or less that

she wanted to go live with her mom. And I told her she could. And

she said that she just want—wanted to be happy on her own. She didn’t

wanna live with her mom. She said her mom would take her back as a

roommate and not a daughter.

(R. at 446, 448.)

Pennycuff’s counsel questioned him about the calendar entries that

supposedly recorded sexual contacts with his daughter. (R. at 449-56.)

Pennycuff provided alternative explanations for various entries. (Id.)

For example, he explained that the “I” noted on December 25 recorded a

missed insulin shot. (R. at 453.)

The prosecutor took up this topic while cross-examining Pennycuff:

Q. Detective Godan talked to you and asked you about those initials

on the calendar; didn’t she?

A. Ah—I don’t think she did.

Q. You don’t remember her mention a calendar and ask you about

those initials?

A. No, they took that stuff and walked out the door with it.

Q. My question is: You do not remember Detective Godan . . .

A. No, I don’t.

Q. . . . asking you about the initials?

A. No, I don’t.

Q. And you don’t remember her giving you a chance to explain those

initials?

A. No, I don’t.

Q. And you don’t remember not responding to her at that time?

A. No.

(R. at 493.)

After the defense rested, the prosecutor called Detective Godan back

to the stand for the following exchange:

Q. Did you ask the Defendant, Terry Pennycuff, about the calendar?

A. Yes, I did.

Q. Did you ask him about the initials?

A. Yes, I did.

Q. And how did he respond?

A. He didn’t give me any response.

Q. In fact, did you ask him whether or not—told him that this was

his chance to respond?

A. Yes.

Q. To that?

A. Yes, I did.

Q. And he did not. No further questions.

(R. at 498-99.)

The prosecutor spoke about the calendar during the rebuttal portion

of her closing argument:

Let’s talk about the calendar because that’s something that’s

just—it’s—you’ve gotta believe [the daughter] or the Defendant.

You’ve got to choose which one you’re going to believe. Okay. Who is

the more credible witness. I already talked about [the daughter’s]

credibility. Untouchable. Unbelievable. You can’t get a better

witness than that. Now let’s talk about the Defendant. Let’s talk

about what he had time to figure out what those initials stood for.

He didn’t tell the detective anything about it when he had an

opportunity to explain it. He gets up there and he had overnight to

think about it because we introduced some of these things.

(R. at 729.)

Pennycuff’s attorney did not object to any of the references to

Pennycuff’s non-responsiveness.

The actual transcript of the interview conducted during the search

reveals that Pennycuff gave no verbal response to five questions. (Supp.

R. at 205-08.) The first two times, Godan reacted “No? Okay.” and

continued the questioning.[4] The third time, when Godan asked “No?”

Pennycuff confirmed “No.”[5] The last two times, Pennycuff responded to

Godan’s “No?” with an inaudible response.[6] The last instance involved

the following exchange:

Q. Well, also, in there, she says that that book, it has the 49’ers

on it, that you would write in there different times with

different initials when you’d had sex with her.

A. (No verbal response).[7]

Q. No?

A. (Inaudible).

Q. Okay. Well, do you have any, anything to say on your behalf on

this?

A. Yeah. She’s lying just to get out of here.

(Supp. R. at 208.)

Post-Trial Proceedings

After his conviction, Pennycuff filed a Belated Motion to Correct

Errors. (Supp. R. at 61.) Among other things, he claimed that the State’s

references to his post-Miranda silence for impeachment purposes entitled

him to reversal under Doyle. (Appellant’s Br. at 9, 22.) The trial court

heard evidence and argument, then denied the motion in all respects.

(Supp. R. at 146-47, 154.)

On appeal, the Court of Appeals found no fundamental error,[8] but

held that Pennycuff’s counsel was ineffective in failing to object to the

references to Pennycuff’s silence. Pennycuff, 727 N.E.2d at 729. It found

a dispositive Doyle violation and ordered a new trial. Id. at 733-34. The

State seeks transfer to this Court.

Standard for Ineffective Assistance of Counsel

Our standard in evaluating claims of ineffective assistance of

counsel is straightforward:

Reversal for ineffective assistance of counsel is appropriate in cases

where a defendant shows both that counsel’s performance fell below an

objective standard of reasonableness and that said deficient

performance so prejudiced defendant as to deprive him of a fair trial.

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674. . . It shall be strongly presumed that counsel rendered

adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment. Judicial scrutiny of counsel’s

performance is highly deferential and should not be exercised through

the distortions of hindsight. Isolated poor strategy, inexperience,

or bad tactics do not necessarily amount to ineffectiveness of

counsel. If deficient performance of counsel can be proven, defendant

must further show a reasonable probability that it altered the outcome

of the case. Id.

Bellmore v. State, 602 N.E.2d 111, 123 (Ind. 1992) (citations omitted).

When evaluating ineffectiveness claims, courts must be cognizant of

the fact that “[t]here are countless ways to provide effective

assistance in any given case. Even the best criminal defense

attorneys would not defend a particular client in the same way.”

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 695.

Accordingly, when appellate courts are considering the claim of actual

ineffectiveness of counsel, they “must judge the reasonableness of

counsel’s challenged conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct.” Id. at 690, 104 S.Ct. at

2066, 80 L.Ed.2d at 695.

Thompson v. State, 671 N.E.2d 1165, 1168 (Ind. 1996).

When the claim is that defense counsel failed to object to certain

evidence or testimony:

This Court will not speculate about what may have been the most

advantageous strategy in particular cases. A deliberate choice made

by counsel for some tactical or strategic reason does not establish

ineffective assistance of counsel. Owens v. State (1984), Ind., 464

N.E.2d 1277. Moreover, the decision to forego perfunctory objections

having little chance of success or no direct or substantial

relationship to the main thrust of the defense is within the realm of

reasonable trial strategy. Bevill v. State (1985), Ind., 472 N.E.2d

1247. The appellant must show that counsel’s alleged failure to act

or his choice of strategy harmed the cause. Kelly v. State (1983),

Ind., 452 N.E.2d 907. When an ineffective assistance claim is

predicated on counsel’s failure to interpose an objection, appellant

has the burden to show that a proper objection would have been

sustained by the trial court. Kimble v. State (1983), Ind., 451

N.E.2d 302.

Hudson v. State, 496 N.E.2d 1286, 1295 (Ind. 1986).

The Claim of Cooperation

The Court of Appeals opinion does not address the significant events

at trial that preceded the prosecutor’s comments about Pennycuff’s non-

responsiveness. In response to his own attorney’s questions at trial,

Pennycuff claimed that he had fully cooperated when he was questioned by

the police during the search. (R. at 445.) Only after this assertion did

the prosecutor raise the issue of Pennycuff’s failure to respond to

questions about the calendar entries. (R. at 493.)

It was perfectly reasonable for Pennycuff’s lawyer to put him on the

stand. Indeed, in light of the victim’s testimony, calling Pennycuff to

rebut her on the facts and to claim she was lying out of vengeance, and

trying to portray Pennycuff as a wronged man who had voluntarily provided

information to the police was about the only sensible defense. Because

there were no other witnesses to the alleged misconduct, Pennycuff’s

credibility in rebutting his daughter’s accusations was critical. Counsel

that performs in a reasonably effective manner, evaluated without the

distortion of hindsight, passes constitutional muster. Burr v. State, 492

N.E.2d 306, 307-08 (Ind. 1986). Although the claim of cooperation did

allow the State to point out that Pennycuff did not respond to the question

about the calendar, defense counsel acted reasonably in portraying

Pennycuff as cooperative and forthcoming, and in portraying T.P. as

manipulative and deceitful.

Having concluded that this basic trial strategy was reasonable under

the circumstances, we are led to the question of whether Pennycuff’s

counsel was ineffective in failing to object to the State references to

Pennycuff’s non-responsiveness. The basic message of Doyle is that

impeachment on the basis of a defendant’s silence is fundamentally unfair

and violates Due Process. Anderson v. Charles, 447 U.S. 404, 407 (1980).

Miranda warnings inform the accused of his right to remain silent, and

implicitly assure him that his silence will not be used against him. Id.

at 407-08.

In Doyle, however, the U.S. Supreme Court explicitly recognized that

post-arrest silence may be used “to contradict a defendant who testifies to

an exculpatory version of events and claims to have told the police the

same version upon arrest.” Doyle v. Ohio, 426 U.S. 610, 619 n.11 (1976)

(citing United States v. Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975)).

In Fairchild, the defendant’s counsel elicited testimony from a state

witness that the defendant had fully cooperated. Fairchild, 505 F.2d at

1383. The court then allowed testimony by another state witness that the

defendant had refused to make a statement following a Miranda warning.

Id. at 1382. The court held that a criminal defendant’s silence following

arrest and warning “is not excluded so that the defendant may freely and

falsely create the impression that he has cooperated with the police when,

in fact, he has not.” Id. at 1383. Applying this principle, the court

determined that “Fairchild opened the door to a full and not just a

selective development of the subject. . . . [O]nce [the defendant] did

broach [the subject of cooperation] the bar was lowered and he discarded

the shield which the law had created to protect him.” Id. (citations

omitted).

Subsequent federal authority continues to recognize an exception to

Doyle for claims of cooperation by a defendant. See, e.g., United States

v. Conlin, 551 F.2d 534, 537 (2nd Cir. 1977) (where defendant maintained he

had spoken throughout the incident at issue, government was allowed to

rebut this assertion with evidence of silence), cert. denied, 434 U.S. 831

(1977); United States v. Allston, 613 F.2d 609, 611-12 (5th Cir. 1980)

(defendant “opened the door” to cross-examination regarding his post-arrest

silence, and closing argument questioning why the defendant had not come

forward with information for a year carried the “lingering fragrance of

rebuttal”).

The Fairchild court explicitly limited this exception, so that a

claim of cooperation does not give a prosecutor carte blanche to use

silence as direct evidence of the defendant’s guilt. Fairchild, 505 F.2d

at 1383. The silence may be used only to rebut the impression of

cooperation. Id.

The Seventh Circuit discussed this same distinction in United States

v. Shue, 766 F.2d 1122 (7th Cir. 1985). Defendant Shue testified on direct

examination that he had cooperated by providing fingerprints and hair and

handwriting samples, and by participating in lineups. Id. at 1128. This

created an impression of general cooperation which, the court held, the

prosecution was entitled to rebut. On cross-examination, however, the

prosecutor asked Shue four times about his refusal to give a statement to

the authorities. Shue replied each time that he had been exercising his

right to remain silent. Id. In closing argument, the prosecutor

emphasized that “[Shue] refused to talk to the FBI, refused. And no one

ever heard of this preposterous, incredible story of a frame until he hit

the witness stand.” Id. at 1128-29. The court held that given these

facts, the prosecutor’s use of Shue’s silence was “an obvious reach beyond

fair limits to impeach his explanatory story as a recent fabrication.” Id.

at 1132.

Here, no such overreaching occurred. Pennycuff specifically claimed

credit not just for general cooperation, but for having answered each of

Detective Godan’s questions. (R. at 445.) The prosecutor’s questions to

Pennycuff and Detective Godan were relevant to counter the defense claim

that Pennycuff openly answered all queries, including those about the

calendar entries. After eliciting testimony refuting this claim the

prosecutor moved on without belaboring the point. (Id.) In closing

argument, the prosecutor referred only briefly to Pennycuff’s failure to

explain the calendar entries at his first opportunity. These references

were sufficiently related to Pennycuff’s claim of cooperation to qualify as

a rebuttal.

Because the State was entitled to point out and comment upon

Pennycuff’s non-responsiveness regarding the calendar, Pennycuff’s counsel

was not ineffective for failing to object. Applying the principles of

Strickland v. Washington, 466 U.S. 668 (1984), we have held that “a

decision to forego perfunctory objections having little chance of success

or no direct or substantial relationship to the main thrust of the defense

is within the realm of reasonable trial strategy.” Hudson v. State, 496

N.E.2d 1286, 1294-95 (Ind. 1986).

The risk that such might occur was simply a modest price to pay for

the benefit of counsel’s larger strategy of portraying his client as a

cooperative fellow who’d been done wrong.

What If Pennycuff Wasn’t Silent?

We have examined Pennycuff’s ineffective assistance claim on the

grounds that he has presented it to us: his lawyer failed to afford him

appropriate protection for his having not answered some of Detective

Godan’s questions. As the dissent points out, Pennycuff’s silence in

response to Detective Godan’s calendar query may be viewed another way. It

is possible that Pennycuff silently shook his head after the first question

and then, when prompted for an oral response, muttered unintelligibly.

This reaction is still insolubly ambiguous, because a headshake might have

signaled chagrin over learning the extent of the police’s knowledge as

easily as denial. If the former is true, our analysis that assumes non-

responsiveness is correct.

Assuming that Pennycuff shook his head in denial, however, the

prosecutor’s reference to the fact that Pennycuff had time to think up

explanations for the suspicious calendar entries would not be objectionable

under Doyle, because Pennycuff did not stand silent. If Pennycuff did

respond, one thing we know for sure is that his lawyer was not ineffective

in failing to protect Pennycuff’s Doyle rights.

The question then becomes whether Pennycuff’s counsel was

constitutionally ineffective in failing to correct Detective Godan when the

detective stated at the trial that Pennycuff gave no response when queried

about the calendar.

Under Strickland, the answer can be yes only if this heat-of-the-

battle oversight was objectively unreasonable when viewed without the

benefit of hindsight, and if there is a reasonable probability that the

jury would have changed its verdict had this clarification occurred. The

second prong is dispositive. We deem it highly unlikely that the jurors

would have changed their verdict had they believed that Pennycuff

dissembled by shaking his head and then muttering a response rather than

that Pennycuff failed to answer the question.

Other Claims of Ineffective Assistance of Counsel

On appeal, Pennycuff raised three additional claims of ineffective

assistance of counsel. The Court of Appeals did not address these issues

because it ordered a retrial based on the lawyer’s failure to protect

Pennycuff’s Doyle rights. Because we conclude differently on that issue,

we proceed to address these additional claims.

The Therapist’s Hearsay Testimony. Pennycuff claims that his

attorney was ineffective in failing to object when T.P.’s therapist gave

hearsay testimony, as follows:

Q. Are you still seeing [T.P.]?

A. Yes, I am.

Q. Did she identify who the culpitraitor [sic] was?

A. Yes, she did.

Q. What was that?

A. She stated that it was her father.

(Appellant’s Br. at 19-20, R. at 407.)

Even assuming that an objection would have been sustained, a failure

to object does not constitute ineffective assistance of counsel if the

decision to remain silent “could well have been a strategic decision by

counsel.” Charlton v. State, 702 N.E.2d 1045, 1051 (Ind. 1998)(citation

omitted). Before the therapist testified, T.P. personally and

unequivocally testified that Pennycuff repeatedly molested her. In

Bannowsky v. State, 677 N.E.2d 1032, 1035 (Ind. 1997) we recognized that a

defense attorney might pass up an opportunity for an objection out of a

desire to avoid focusing the jury’s attention on a particular statement.

Here, Pennycuff correctly asserts that the therapist’s statement may

have bolstered T.P.’s credibility to some degree. The defense attorney may

well have decided, however, to let the brief statement pass unremarked

rather than to highlight it with even a sustainable objection. This course

of action did not exceed the bounds of reasonable performance by a lawyer,

so Pennycuff’s claim fails under the first prong of Strickland.

The X-Rated Stuff. When the State called Detective Godan to testify

about executing the search warrant at Pennycuff’s apartment, she explained

that it authorized seizing the calendar, any kind of child pornography, and

other pertinent items the victim had told police would be in the apartment

(like Polaroid pictures of her in the nude). (R. at 337, 355.) Defense

counsel objected to introduction of the whole calendar, and thus only parts

were admitted. (R. at 341, 344.)

On cross-examination, counsel extracted from the detective her

acknowledgements that much of what the victim had claimed the police would

find in the apartment was not there at all.[9]

Over the prosecutor’s objection, the defense managed to elicit the

detective’s confirmation that a background check revealed that Pennycuff

had never been arrested or recorded as involved in any prior incidents of

the sort for which he was on trial. (R. at 356-57.) Presumably

anticipating the State’s re-direct, counsel asked whether the officer had

found other items, like X-rated videos, magazines, and a collage of movie

stars in various stages of dress. (R. at 357, 360.) These were all in the

apartment on the day of Pennycuff’s wedding, counsel observed. (R. at

357.) Yes, said the officer. (Id.)

On re-direct, the State offered up the collage, a reasonably

inoffensive item, and the defense had no objection. (R. at 359.) The

prosecutor asked whether the detective drew any inferences from the

materials about Pennycuff and pedophilia based on her experience as a

detective in the field. (R. at 361.) Defense counsel objected, more than

once, to this effort, such that the prosecutor eventually abandoned it.

(R. at 361-66.) The prosecutor moved instead to admit a magazine named

Hawk, cover story “Mickey’s such a naughty young girl.” (R. at 367, 371.)

It bore descriptions such as “Purely 18 – The Innocent Babes You Crave!”

and “The youngest babes allowed by law!” (R. at 371.) Defense counsel

forcefully objected. (R. at 367-68.) The prosecutor said she was entitled

to use these to rebut the defense’s suggestion that Pennycuff was a “good

guy” with “no, you know, criminal history.” (R. at 368.) The court

overruled the objection. (R. at 369.)

Pennycuff contends his lawyer was ineffective for asking the

detective about the tapes and magazines, (Appellant’s Br. at 14-15), but it

seems that counsel’s objective was to emphasize that much of what the

victim had said to the police turned out to be unverifiable and to blunt

the effect of the videos and collage by noting that Pennycuff did not take

any effort to hide them, even from his new wife. As for Hawk, the magazine

featuring pubescent girls, counsel worked hard at keeping it out, but the

court saw it as relevant to the charge and the general defense that the

victim was lying about Pennycuff’s sexual interest in his young daughter.

All in all, we are not persuaded that Pennycuff has overcome the

presumption that his lawyer performed reasonably well on this score.

The Sexual Device. During direct examination, the prosecutor

questioned T.P. as follows:

Q. Now, [T.P.], did your father ever ask you to use any sexual

toys?

A. Yes, he did.

Q. Do you—tell—tell the jury what he did.

A. It was right before the divorce. He was going through a box of

personal items that him and my mother had had. He pulled out a

dildo and asked me if I would be interested in using it. And I

told him no. I never used it. . . .

Q. I’m going to show you what’s been marked for identification

purposes as State’s Exhibit One and ask you to identify this for

the jury.

A. That is the dildo he asked me if I would like to use.

(R. at 236.) Pennycuff claims ineffective assistance because his defense

counsel did not object to admission of the sexual device into evidence.

(Appellant’s Br. at 17.)

Pennycuff has not shown that he suffered prejudice over this failure

to object. T.P.’s mother testified that she purchased the device while

married to Pennycuff, because Pennycuff experienced difficulty getting an

erection. (R. at 399.)

The introduction of the device served to bolster Pennycuff’s

arguments, i.e. that he suffered from impotence and was therefore

physically incapable of having done some of the things his daughter

described. (R. at 715, 719.) Nonetheless, T.P.’s testimony about

Pennycuff’s inappropriate offer certainly painted Pennycuff in an

unflattering light. We accept Pennycuff’s claim that most lawyers would

have objected, and that it was error not to do so. Pennycuff has not

shown, however, that any damage outweighed the benefit he received in

increased credibility regarding his claim of impotence. This claim

therefore fails under the second prong of Strickland.

A Cumulative Recap. Errors by counsel that are not individually

sufficient to prove ineffective representation may add up to ineffective

assistance when viewed cumulatively. Williams v. State, 508 N.E.2d 1264,

1268 (Ind. 1987) (citation omitted). Here, however, that is not the case.

Defense counsel’s handling of the issues related to Pennycuff’s non-

responsiveness to the calendar question, to the therapist’s hearsay

testimony, and to the pornography collection all fell within the range of

reasonable trial performance. Counsel’s only error was in failing to

object to introduction of the sexual device, so our conclusion stands.

Differing Reasonable Doubt Instructions

Pennycuff asks for a new trial because the court gave different

preliminary and final reasonable doubt instructions, although he concedes

that both were correct statements of law.[10] (Appellant’s Br. at 6, 25.)

Defense counsel objected to the final instruction on the basis that an

inconsistency might confuse the jury. (R. at 500-01.)

We recently dealt with a very similar claim in Albrecht v. State, 737

N.E.2d 719 (Ind. 2000). In Albrecht, the court gave the same two

instructions that were given here, but gave both at the same time. Id. at

730.

Albrecht claimed, as Pennycuff claims, that the combination of

instructions confused the jury. Id., (Appellant’s Br. at 25.) We held

otherwise, noting that “[s]imply because the language of the instructions

differs, it does not necessarily follow that the definitions are

inconsistent or conflicting.” Id. at 731. We found no reasonable

likelihood that the different instructions led the jurors to convict

Albrecht based upon constitutionally insufficient proof of guilt. Id.

The gap in time between the two instructions here does not change our

conclusion. Pennycuff argues that, because different jurors may have

looked to different instructions for guidance, their verdict was not truly

unanimous. (Appellant’s Br. at 25-26.) We disagree. Each juror was

guided solely by correct statements of the law on reasonable doubt. Due

process does not demand that each juror’s subjective view of reasonable

doubt be identical. It demands only that each juror require a

constitutionally sufficient quantum of evidence to convict. Both the

instructions at issue meet this test. Pennycuff’s argument fails.

Conclusion

We grant the State’s petition to transfer and affirm the judgment of

the trial court.

Sullivan and Rucker, JJ., concur.

Dickson, J., dissents with separate opinion.

Boehm, J., dissents with separate opinion, in which Dickson, J.,

concurs in Part I.

In The

INDIANA SUPREME COURT

)

TERRY PENNYCUFF, )

Defendant-Appellant, )

)

v. ) 49S02-0104-CR-213

)

STATE OF INDIANA, )

Plaintiff-Appellee. )

)

________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Tanya Walton Pratt, Judge

Cause No. 49G01-9906-CF-088754

________________________________________________

On Petition To Transfer

April 18, 2001

DICKSON, Justice, dissenting.

I agree with the analysis of Justice Boehm in Part I of his

dissenting opinion. Because these considerations lead me to conclude that

the judgment of the trial court should be reversed, I express no opinion on

the remaining issues.

ATTORNEY FOR APPELLANT

Jodi Kathryn Stein

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson

Attorney General of Indiana

Timothy W. Beam

Deputy Attorney General

Indianapolis, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

TERRY PENNYCUFF, )

) Indiana Supreme Court

Appellant (Defendant Below), ) Cause No. 49S02-0104-CR-21

)

v. ) Indiana Court of Appeals

) Cause No. 49A02-9902-CR-117

STATE OF INDIANA, )

)

Appellee (Plaintiff Below). )

__________________________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Tanya Walton Pratt, Judge

Cause No. 49G01-9906-CF-088754

__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________

April 18 2001

BOEHM, Justice, dissenting.

I respectfully dissent and would deny transfer. I believe the Court

of Appeals reached the correct result, although not for the same reasons I

would give. I also believe that to the extent the majority opinion offers

guidance in future cases, it sets very dangerous precedents.

I.

It seems to me that this record supports the claim of ineffective

assistance of counsel. The “transcript” of Pennycuff’s kitchen interview

after Miranda warnings reveals several exchanges with the investigating

officer, Detective Godan, along the following lines:

Q [Godan]: Do you have any idea what [T.P.] is talking about?

A [Pennycuff]: (No verbal response)

Q [Godan]: No? Okay. She’s saying she, started when she was thirteen.

The prosecution contended that these “refusals to answer” rebutted

Pennycuff’s claim of cooperation with the investigation triggered by his

daughter’s allegations. The defense made no coherent response to this

portrayal of Pennycuff as a liar in his claim at trial to have cooperated

with the investigation. The Court of Appeals also viewed these exchanges

as refusals to answer, but found them protected by Doyle v. Ohio, 426 U.S.

610 (1976). The majority of this Court addresses the Doyle issue at

length, concluding that Pennycuff’s post-Mirandized silence in response to

Detective Godan’s question was admissible to rebut his claim of having

cooperated with the investigation of his daughter’s allegations.

Assuming Pennycuff did refuse to respond to Detective Godan, the

prosecutor’s use of that refusal is at best dubious under United States v.

Shue, 766 F.2d 1122 (7th Cir. 1985), cited by the majority. That case held

silence admissible to rebut a claim of cooperation, but not admissible as

evidence of guilt in the charged crime. See id. at 1132 (“The government

violated appellant’s right to due process by using his post-arrest silence

in an obvious reach beyond fair limits to impeach his explanatory story as

a recent fabrication.”). The latter is what happened here. The State’s

closing argument included:

Now let’s talk about the Defendant. Let’s talk about what he had time

to figure out what those initials stood for. He didn’t tell the

detective anything about it when he had an opportunity to explain it.

He gets up there and he had overnight to think about it because we

introduced some of these things.

The Court of Appeals concluded that failure to raise the Doyle issue was

ineffective assistance. Perhaps the majority is correct that this alone

did not rise to that level, but it gets worse.

The majority also acknowledges that this “transcript” may simply

reflect nonverbal negative responses. It seems to me the normal reading

of this interview is that Pennycuff did answer each of these questions, and

did so by a negative shake of the head or other clear nonverbal response

that communicated a negative answer to the questioner. In each case, the

claimed nonresponse is followed by the questioner’s apparently taking the

nonverbal response as a negative answer, and proceeding as if a negative

response had been given. If this had been a deposition, the interrogator

or the reporter would have said something like, “You need to give us a

verbal reply, so the tape can pick this up.” But this “transcript” is not

a reporter’s account of a court proceeding. It is simply a typed version

of an audio tape recording of an officer interview of the defendant in his

home, with no one else present. No one made a demand for audible

responses, but it seems fairly clear that Pennycuff was communicating with

his questioner. This is not only my reading of this typewritten account of

the tape-recorded interview. It is precisely what the questioner,

Detective Godan, said under oath in an affidavit filed in support of

Pennycuff’s belated motion to correct errors. Pennycuff v. State, __

N.E.2d __, __ n.7 (Ind. 2001).

The majority acknowledges that defense counsel did not raise this

fairly obvious response to the charge that Pennycuff was a liar. The

majority concludes that there was no prejudice from this exchange because

the jury could conclude either that Pennycuff had “dissembled” or that he

had refused to answer, both of which place him in a poor light. But the

majority’s characterization of “dissembling” responses is not the only

alternative reading of this transcript. The point of Pennycuff’s

contention is that he did neither. He claims he was forthright and did

respond to the questions. And he points to the fact that Detective Godan

took his answers as denials. If so, he was cooperating, not dissembling.

Similarly, his failure to recall not responding to the inquiries is

consistent with his claim that he did in fact respond. Thus, the jury was

presented with a defense that accepted the State’s characterization of this

exchange as Pennycuff’s refusal to answer. Pennycuff’s claim of truthful

answers was for the jury to resolve, but it was presented or discussed by

no one.

If counsel had read this “transcript” as I do, the contention would

not be that there is a Doyle problem. Rather, the contention would be that

the State was fabricating a refusal to answer when there was none.

Accordingly, the contention would be that Pennycuff was truthful in

claiming cooperation with the investigation. And his failure to recall “not

responding” is explained by the fact that it did not occur. None of this

was pointed out to the jury. In itself, that may be explained as a viable

strategy based on factors not evident from the record. But I do not agree

with the majority when it attributes counsel’s performance to a “heat of

battle” decision. Long before the trial began it must have been obvious

that the transcript was clearly in play and a subject of dispute. In any

event, the direct examination of Detective Godan plainly foreshadowed the

prosecution’s claim in closing argument that Pennycuff was not forthcoming.

Minimal preparation by trial counsel would have considered how to

handle this issue. If viewed as nonverbal negative responses, the defense

could have presented Pennycuff’s claim of cooperation as supported, not

rebutted, by the “transcript,” if not a Doyle violation. Perhaps rejection

of that alternative was a tactical call based on counsel’s assessment that

the claim to have given nonverbal responses would not be accepted. But,

for the reasons given by the Court of Appeals, counsel had to choose either

that route or a Doyle objection, and did neither.

II.

Regardless of the resolution of the issues raised by the transcript,

in the context of the other actions of trial counsel, I think ineffective

assistance was demonstrable. It was defense counsel, not the prosecution,

who introduced the “X-Rated Stuff.” This was after direct examination of

the detective had concluded without mention of the nature of the literature

seized in Pennycuff’s house. I think it obvious that possession of some of

these materials may have prejudiced some jurors against Pennycuff. The

majority suggests that this subject was brought out “anticipating the

State’s redirect.” I would think that its introduction would be highly

improper unless it were itself illegal material, which no one seems to

contend is the case. There was no need to anticipate an action by the

prosecution that did not occur on direct, should not have occurred on

redirect, and should not have been allowed by the trial court if it did.

After defense counsel had opened this subject, the prosecution offered

the September 1996 issue of “Hawk,” claiming to display, “The youngest

babes allowed by law!” to rebut Pennycuff’s claim that he was a law abiding

citizen. This publication was not shown to T.P. or involved in any of the

alleged incidents. Taking this magazine’s claim at face value, it is not

illegal. Even if it contained photos of underage subjects, its relevance

would be at best a marginal call under Evidence Rule 403. But it appears

to contain nothing but photos of adult women. Whatever one thinks of this

publication, it is of the genre openly displayed in many newsstands and

other retail outlets. We claim to base our criminal justice system on

proof of what the defendant has done, not who the defendant is. Yet

introduction of the defendant’s lawful materials, however tasteless,

without tying them to any issue in the case runs the risk of violating that

basic principle. The prosecutor’s closing argument played to this theme.

It included the contention that, “What’s strange is that the Defendant had

sex with his daughter. It’s strange that he committed oral sex with his

daughter. It’s strange that he’s had barley [sic] legal magazines that he

reads.” (Emphasis added.) In short, introducing these materials was in my

view not a defensible defense strategy, and it produced the erroneous

admission of prejudicial materials.

The claim raised in this appeal is ineffective assistance for

introducing this material into the trial, not trial court error in

admitting the one item to which Pennycuff objected. The State defended its

admission on the ground that defense counsel had opened the door by

pointing out on cross-examination of Detective Godan that no photos or

videos of T.P. were found in the search and that Pennycuff had no criminal

record. The trial court, in ruling on Pennycuff’s motion to correct error,

found that it had ruled the materials admissible on that basis. In my

view, if the door was not opened, overruling the objection was error, see

Rafferty v. State, 610 N.E.2d 880, 883 (Ind. Ct. App. 1993). It seems

debatable that the door was opened wide enough to permit salacious but

irrelevant material, but the issue is not raised in this appeal as trial

court error. Rather, it is presented as ineffective assistance for opening

the door. I believe Pennycuff has established his claim of ineffective

assistance by showing that the defense opened the door to materials that

would otherwise have been ruled inadmissible.

Because this case turned substantially on the conflicting testimony of

Pennycuff and T.P., the introduction of these materials was prejudicial.

As the majority puts it, this “X-Rated Stuff” was used to show the

defendant’s interest in his own young daughter. Pennycuff, __ N.E.2d __ at

__. I think this use violates both prongs of the balancing test required

by Evidence Rule 403. It is highly prejudicial, because many would find

this magazine offensive or even, in the prosecutor’s term, “strange.” It

is also irrelevant. The defendant’s interest in photographs of somebody

else’s adult daughters is qualitatively different from the charge that he

was having sex with his own fourteen year old. In any event, its

appearance in this case was instigated by defense counsel and was

prejudicial. I would deny transfer and accept the result of the Court of

Appeals’ decision.

DICKSON, J., concurs in Part I.

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

[1] In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the U.S. Supreme Court held

that use for impeachment purposes of a defendant’s silence after arrest and

a Miranda warning violates the Due Process Clause of the Fourteenth

Amendment.

[2] Pennycuff received a Miranda warning and acknowledged it in writing

before this questioning. (Supp. R. at 51.)

[3] Jane Pennycuff had earlier testified that Pennycuff is diabetic. (R.

at 415.)

[4] Q. Okay. Um, I’m here because, like I was saying that, your

daughter, [T.P.] has come in and given me a statement on things that

happened between you and her. Okay? Um, she seems very upset. She’s

saying a lot of things that happened for the last three years. Do you

have any idea what she’s talking about?

A. (No verbal response).

Q. No? Okay. She’s saying she, started when she was thirteen.

That, you remember taking any kind of videos of her in a black slip?

A. I had a video camera, yeah. But, no.

Q. When you lived over on the other street on Midvail, or

something. You had a basement.

A. I had a basement.

Q. Um-huh (indicating yes). She said that you took her down there

with the video camera and, in this black slip that her mom got her.

A. (No verbal response).

Q. No? Okay. Um, have you noticed in the last three years or so,

that your daughter’s been going to the hospital a lot? You know why?

A. (Inaudible).

Q. Why’s she been going?

A. Cause she’s having sex.

Q. With whom?

A. Well, I, I don’t know . . . .

(Supp. R. at 205.)

[5] Q. Okay. Have you ever had sex with her?

A. No, I haven’t.

Q. Okay. She’s saying that you have for many years.

A. (No verbal response)

Q. No?

A. No.

(Supp. R. at 206.)

[6] The fourth exchange went as follows:

Q. Okay. She’s saying that you did things, you did things to her

in the bunkbeds. You taught her oral sex and all that stuff.

A. (No verbal response).

Q. No?

A. (Inaudible).

Q. And I asked her why that she hadn’t told a long time ago. She

said because you threatened to kill her.

A. No. She tried to kill herself.

(Supp. R. at 206.)

[7] During a hearing on a belated motion to correct error, Detective Godan

stated, based upon her follow-up question “No?”, that Pennycuff’s initial

“no response” was almost certainly a negative headshake. (Supp. R. at 211,

219.)

[8] We summarily affirm the Court of Appeals on this point. Ind. Appellate

Rule 58(A)(2).

[9] Q. Did you find a video tape of him filming her dancing in her

slip?

A. No.

(R. at 355.)

[10] The preliminary instruction stated, in pertinent part:

A reasonable doubt is a fair, actual and logical doubt that arises in

your mind after an impartial consideration of all the evidence and

circumstances in the case. It should be a doubt based upon reason and

common sense and not a doubt based upon imagination or speculation.

To prove the defendant’s guilt of the elements of the crime charged

beyond a reasonable doubt, the evidence must be such that it would

convince you of the truth of it, to such a degree of certainty that

you would feel safe to act upon such conviction without hesitation, in

a matter of the highest concern and importance to you.

(R. at 92.) The final instruction stated:

The State has the burden of proving the Defendant guilty beyond a

reasonable doubt. Some of you may have served as jurors in civil

cases, where you were told that it is only necessary to prove that a

fact is more likely true than not true. In criminal cases, the

State’s proof must be more powerful than that. It must be beyond a

reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly

convinced of the defendant’s guilt. There are very few things in this

world that we know with absolute certainty, and in criminal cases, the

law does not require proof that overcomes every possible doubt. If,

based upon your consideration of the evidence, you are firmly

convinced that the Defendant is guilty of the crimes charged, you

should find him guilty. If, on the other hand, you think there is a

real possibility that he is not guilty, you should give him the

benefit of the doubt and find him not guilty.

(R. at 131.) In Winegeart v. State, 665 N.E.2d 893, 902 (Ind. 1996), a

majority of this Court expressed a preference for the latter instruction.

However, acknowledging the differences of opinion within the Court, we

specifically declined to require the latter. Id.