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Jervis v. State

Court of Appeals of Indiana

April 7, 2015

Mark M. Jervis, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent

Page 362

Appeal from the Warrick Superior Court. The Honorable Robert R. Aylsworth, Judge. Cause No. 87D02-9707-PC-59.

Mark M. Jervis, APPELLANT, Pro se, Carlisle, Indiana.

FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, Indiana.

Riley, Judge. Vaidik, C. J. and Baker, J. concur.

OPINION

Page 363

Riley, J.

STATEMENT OF THE CASE

[¶ 1] Appellant-Petitioner, Mark Jervis (Jervis), appeals the post-conviction court's denial of his petition for post-conviction relief.

[¶ 2] We affirm.

Page 364

ISSUE

[¶ 3] Jervis raises two issues on appeal which we consolidate and restate as the following single issue: Whether Jervis was denied effective assistance of trial and appellate counsel.

FACTS AND PROCEDURAL HISTORY

[¶ 4] We adopt the recitation of facts as set forth in Jervis's direct appeal as follows:

On August 14, 1993, Terri Boyer went on a drinking spree with her husband, her brother and the brother's girlfriend. The four began in the early afternoon in Hatfield, their home town, and took the brother's truck to visit several bars, the last in Newburgh. In Newburgh, Boyer and her husband got into an argument that resulted in Boyer leaving the truck. The other three drove back to Hatfield, leaving an intoxicated Boyer to fend for herself. Just before 10 p.m. Boyer found her way to Frenchie's, a tavern in Newburgh, where she asked several patrons to give her a ride back to Hatfield. All refused. At some point, defendant Jervis entered the bar, met Boyer, and offered to take her to Hatfield. The two had no prior acquaintance.
Jervis and Boyer were seen leaving the bar together some time around midnight, but no one actually saw them drive away in Jervis's car.
Witness Terry Timberlake testified that he saw a car resembling
Jervis's station wagon pull into the Newburgh Cinema parking lot around 11:30 p.m. Timberlake stated that two people, one male and one female, appeared to be in the car, but he could not positively identify them as Jervis and Boyer. Approximately thirty minutes later,
Timberlake saw the station wagon leave the Cinema parking lot and park in an adjacent lot of a daycare center where it remained for about ten minutes. It then returned to the Cinema parking lot, and finally drove away. Jervis returned to Frenchie's alone around 12:30 to 1:30 a.m. the same night, telling those present that he was unable to take Boyer to Hatfield because his car had broken down. Jervis went home a half hour later. At approximately 12:30 p.m. the next day, the owner of Newburgh Cinema found Boyer's body on a grass strip next to the Cinema parking lot. Boyer was nude below her waist and her bra and shirt were pushed up to her shoulders. An autopsy concluded that Boyer had been strangled and had died around midnight.
On September 5, 1993, Jervis was charged [] with Boyer's murder.
The State's case against Jervis was largely circumstantial and included the following evidence: (1) an envelope, pencil and pen Boyer had been carrying in her purse were found in Jervis's trash can outside his apartment; (2) Boyer's driver's license and her daughter's library card were found in Jervis's car; and (3) DNA evidence established a strong likelihood that a blood stain on Jervis's shirt and a pubic hair found on his pants were Boyer's. Several witnesses also testified as to Jervis's whereabouts on the night in question. The jury was unable to reach a verdict in Jervis's first trial in 1994. The State retried Jervis in 1995 and a second jury convicted him.

Jervis v. State, 679 N.E.2d 875, 876-77 (Ind. 1997). Jervis filed a direct appeal challenging his conviction. In that appeal, Jervis raised several issues relating to the admission of several pieces of evidence and jury misconduct. On May 12, 1997, our supreme court affirmed Jervis's conviction. Id. On March 18, 2003, Jervis filed his pro se petition for post-conviction ...


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