Trondo L. Humphrey, Appellant (Petitioner below),
State of Indiana, Appellee (Respondent below).
from the Madison Circuit Court 3 Nos. 48C03-1206-PC-19 and
48D03-9511-CF-417 The Honorable Thomas Newman, Jr., Judge
Petition To Transfer from the Indiana Court of Appeals, No.
Attorneys for Appellant Stephen T. Owens Public Defender of
Indiana, John Arthur Pinnow Deputy Public Defender
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana, Brian Lee Reitz Deputy Attorney General, Andrew
A. Kobe Deputy Attorney General, Ellen Hope Meilaender Deputy
Attorney General Indianapolis, Indiana
claim of ineffective assistance of trial counsel, Trondo L.
Humphrey appeals the denial of his petition for
post-conviction relief. Concluding petitioner established his
grounds for relief by a preponderance of the evidence, we
reverse the judgment of the post-conviction court.
and Procedural History
was convicted of murder in 1996 and sentenced to a term of
sixty years. The underlying facts as set forth on direct
appeal before this Court are as follows:
On the night of April 28-29, 1995, Benjamin Laughlin and
Stephen Sites were driving around a neighborhood in Anderson
looking for crack cocaine. Sites' account of events is
summarized first. Sites was driving his truck. The two had
been circling the same neighborhood for thirty to forty-five
minutes when they saw three people in an alley. Believing the
three to be drug dealers, Laughlin told Sites to pull into
the alley. One of the three approached the truck on the
passenger side and Laughlin asked the dealer to get in the
cab to discuss a cocaine sale. As Sites drove, Laughlin and
the dealer quickly exchanged words, the dealer drew a gun,
Laughlin grabbed it, and the gun discharged. Sites saw the
barrel of the gun but did not see a "flash" because
the dealer "had the gun pushed up against
[Laughlin]." Record at 253. The single shot struck
Laughlin in the abdomen and the dealer jumped out of the
moving truck and ran away. Sites testified that the dealer
was young, black, had short hair, and was about five feet ten
inches tall. However, Sites was unable to provide a more
precise identification of the dealer and also could not
identify his two comrades waiting nearby. Sites estimated
that the dealer was in the truck for thirty to forty seconds.
Sites drove Laughlin to a nearby hospital where he eventually
died from the wound. A forensic technician examined
Sites' truck for fingerprints and blood spatters but was
unable to recover any physical evidence or discernable
fingerprints from the vehicle.
Donnie Smith testified that he was drinking and smoking
marijuana with the defendant and Roosevelt Brooks on the
night of the murder in Brooks' garage near the alley
where the shooting occurred. The garage door was open so the
three had access to the alley to sell drugs on the street. At
some point a truck stopped outside the garage and the
defendant went outside to greet it, indicating to Smith that
he believed the occupants were looking for cocaine. Smith
heard the door of the truck open and close in the alley but
testified that he did not hear any shots or actually see the
defendant approach or enter the truck. The truck then
"peel[ed] out" and the defendant returned to the
garage, telling Smith that the "dude" tried to
"gank him" or "get him." Record at 278.
Smith saw only the back of the truck and could not testify to
its color or whether it was the vehicle driven by Sites that
evening. At some point prior to this incident, but not in the
garage that night, Smith had seen the defendant carrying a
On June 16, 1995, Brooks, while in jail on an unrelated
charge, gave an unsworn written statement to a police
detective about the events of that night. According to the
statement, Brooks was in his garage with someone he
identified as the defendant from a photographic lineup
containing pictures of six black males. The defendant went
out to a blue truck with "white guys" inside,
Brooks heard a "noise, " and the defendant returned
soon thereafter, stating that he had shot one of the men.
Record at 310. At trial, Brooks testified that he knew the
defendant but was not with him or Smith on the night of the
shooting. Brooks repudiated the statement, which had been
admitted to impeach the credibility of his courtroom version,
and testified in essence that it was fabricated due to police
Humphrey v. State, 680 N.E.2d 836, 837-38 (Ind.
1997) [hereinafter Humphrey I] (footnotes omitted).
appealed raising several claims, including: (1) the trial
court abused its discretion when it admitted into evidence
Brooks' statement regarding Humphrey's participation
in the murder; and (2) the trial court erred when it did not
admonish the jury to consider the statement for impeachment
purposes only. This Court held that Brooks' prior
statement was admissible for impeachment purposes, and
regarding the admonishment we said, "[h]ad a proper
objection been lodged to the instruction, the court would
have been required to entertain it." Humphrey
I, 680 N.E.2d at 840. Ultimately, we affirmed the
conviction noting, among other things, "[t]here is no
claim of ineffective assistance of trial or appellate counsel
raised in this appeal." Id.
years later Humphrey filed a pro se petition for
post-conviction relief which was later amended by counsel.
The amended petition alleged trial counsel rendered
ineffective assistance for the following reasons: (1) failing
to object to the admission of Brooks' unsworn statement
on hearsay grounds; (2) failing to request an admonishment
that the jury may consider Brooks' unsworn statement for
impeachment purposes only; (3) failing to object to and
improperly endorsing the trial court's erroneous
instruction on prior inconsistent statements; and (4) failing
to offer in its place an instruction that reflected a correct
statement of the law.
State responded denying Humphrey's substantive claims and
also asserting they were barred by the doctrine of laches.
After a hearing, the post-conviction court concluded that
Humphrey's claims were not barred and denied relief on
the merits. On review, in a unanimous opinion, the Court of
Appeals agreed with the post-conviction court on the issue of
laches, but reversed on the substantive claims. In so doing
the Court concluded, among other things, "Humphrey was
prejudiced by counsel's errors that allowed the jury to
consider as substantive evidence the only evidence that
identified Humphrey as the shooter." Humphrey v.
State, 56 N.E.3d 84, 94 (Ind.Ct.App. 2016) [hereinafter
Humphrey II]. We agree with our colleagues on the
Court of Appeals and previously granted transfer to explore
further Humphrey's substantive claims. We summarily
affirm that portion of the court's opinion disposing of
the State's claim of laches. Additional facts are set
of Review for Post-Conviction Proceedings
petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence." Campbell v. State, 19 N.E.3d 271,
273-74 (Ind. 2014). "When appealing the denial of
post-conviction relief, the petitioner stands in the position
of one appealing from a negative judgment." Id.
at 274. In order to prevail on an appeal from the denial of
post-conviction relief, a petitioner must show that the
evidence leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court.
Weatherford v. State, 619 N.E.2d 915, 917 (Ind.
1993). Further, the post-conviction court in this case
entered findings of fact and conclusions of law in accordance
with Indiana Post-Conviction Rule 1(6). Although we do not
defer to the post-conviction court's legal conclusions,
"[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." Ben-Yisrayl v. State,
729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
of Review for Ineffective Assistance of Counsel
evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v.
Washington, 466 U.S. 668 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To
satisfy the first prong, "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." McCary v.
State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88). To satisfy the
second prong, "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. (citing
Strickland, 466 U.S. at 694).
findings and conclusions, the post-conviction court
determined that trial counsel did not render deficient
performance by failing to object on hearsay grounds to the
admission of Brooks' prior inconsistent statement.
Similarly, the post-conviction court determined trial counsel
did not render deficient performance by failing to request an
admonishment based on Evidence Rule 105, or failing to object
to the trial court's final instruction on prior
inconsistent statements or tender an instruction on prior
inconsistent statements. According to the post-conviction
court, "a limiting instruction may have done more harm
than good because it could have focused the jury on an
undesirable aspect of the evidence." App. at 81
(Post-conviction Findings of Fact and Conclusions of Law at
State elaborates on the post-conviction court's findings
contending counsel engaged in reasonable trial strategy.
According to the State, once trial counsel's objection on
foundation grounds was overruled counsel was left with two
choices: "(1) make a hearsay objection and request a
limiting instruction and thereby draw attention to the
evidence; or (2) decide not to call more attention to the
evidence. [Defense counsel] chose the latter[.]" Br. of
Appellee at 20-21 (footnote omitted). This contention is not
supported by the record. After the unsworn statement had been
admitted, defense counsel made repeated references to it
throughout the remainder of the trial. It was defense
counsel-not the State-who read aloud in court the portion of
Brooks' unsworn statement that identified Humphrey as the
closing argument, it was defense counsel who highlighted the
most damaging piece of information from Brooks' unsworn
statement to the jury. See R. at 474 ("Recall
where the testimony came regarding Trondo acknowledging
that he shot someone, that came from State's
witness, Brooks." (emphasis added)). This argument was
exacerbated when counsel urged the jury to "consider the
out-of-court statements as evidence in determining the guilt
or innocence of the defendant of the crime charged." R.
at 488-89. Based on this record, it could not have been
counsel's strategy-to decline to mount a hearsay
objection or request a limiting instruction-to avoid drawing
attention to Brooks' statement. This is so because
counsel repeatedly referred to that which the State claims
counsel did not want to draw attention.
similar fashion, the State also contends defense counsel
wanted Brooks' unsworn statement admitted to
comport with the "secondary trial strategy . . . to
focus on the prior inconsistent statements to sow reasonable
doubt." Br. of Appellee at 22. We note the following
flaws with this contention. First, assuming it was
counsel's intent to use the unsworn statement as part of
his defense ignores the fact that he attempted, albeit
unsuccessfully, to prevent the statement from being admitted
into evidence in the first place. See, e.g., R. at
308 (objecting to the admission of the statement on
foundation grounds); R. at 315 (objecting to the publication
of the statement to the jury). Second, the notion that
counsel wanted the unsworn statement admitted into evidence
directly contradicts the State's position that it was a
reasonable strategy not to object or request a limiting
instruction because counsel "decide[d] not to call more
attention to the evidence." Br. of Appellee at 21. The
State argues defense counsel "retreated to the
reasonable secondary defense of not drawing further attention
to evidence that was going to be admitted[, ]" but also
contends counsel "decided to meet that statement head-on
and use it to show the inconsistencies in the State's key
witnesses." Id. at 22-23 (citations omitted).
These two proffered strategies advanced by the State directly
oppose each other. It defies credulity to say on the one hand
that defense counsel strategically elected not to mount a
hearsay objection or request a limiting instruction to
refrain from drawing attention to Brooks' unsworn
statement, but insist on the other hand that counsel wanted
to "use it to show the inconsistencies in the
State's key witnesses." Id. at 23. Third,
counsel rested without presenting any evidence to defend
against the charges-instead electing to argue that the State
had failed its burden to prove the identity of the shooter.
See R. at 460 ("The issue here is as the State
of Indiana has claimed, is whether or not Trondo L.
Humphrey . . . killed Benjamin Laughlin." (emphasis
added)). Permitting the jury to consider hearsay statements
as substantive evidence that directly supports Humphrey's
guilt is inconsistent with this strategy; thus, calling into
question the presumption that "counsel provided adequate
assistance and exercised reasonable professional
judgment."Permitting as substantive evidence an
otherwise impermissible unsworn statement claiming that
Humphrey admitted to the murder does not support the trial
strategy of arguing to the jury that the State had failed its
burden to prove that Humphrey was the shooter.
is no dispute that "tactical or strategic decisions will
not support a claim of ineffective assistance."
McCary, 761 N.E.2d at 392 (alteration and quotation
omitted). Also, we afford great deference to trial
counsel's discretion to choose strategy and tactics.
Id. And we "strongly presume that counsel
provided adequate assistance and exercised reasonable
professional judgment in all significant decisions."
Id. (citing Strickland, 466 U.S. at
689-90). But where the record contradicts the presumption
that counsel's performance was the result of strategic
and tactical planning, we will not afford such deference to
Failure to object on hearsay grounds
trial, defense counsel lodged an objection to the admission
of Brooks' written statement solely based on an improper
foundation. Specifically, defense counsel declared:
"It's improper, Your Honor. He's not been asked
proper [sic] question for foundation to offer that as an
exhibit." R. at 308. Because Brooks admitted to having
made the statement and admitted that the signature on the
document was his signature, this objection was overruled and
the written statement was admitted into evidence. At no point
did defense counsel object based on hearsay. As we previously
The statement in question is clearly hearsay if offered to
prove the facts contained because it was given out of court
notwithstanding that Brooks was on the stand. This is
precisely the point decided in Modesitt v. State,
578 N.E.2d 649 (Ind. 1991), which overruled Patterson v.
State, 263 Ind. 55, 324 N.E.2d 482 (1975).
Patterson had held that out-of-court statements not
given under oath could be considered as substantive evidence
so long as the declarant was available for cross-examination
at trial concerning the statement. In its place,
Modesitt adopted Federal Rule of Evidence 801(d)(1)
as the law of Indiana. The Indiana Rules of Evidence have
since been adopted, and accomplish by Rule what
Modesitt did by decision. Indiana Evidence Rule
801(d)(1)(A) provides that a statement is not hearsay if
"[t]he declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement, and
the statement is . . . inconsistent with the declarant's
testimony and was given under oath subject to the penalty of
perjury at a trial, hearing or other proceeding, or in a
deposition[.]" Because the prior statement was not under
oath, it was not admissible under this Rule or any other.
Humphrey I, 680 N.E.2d at 838. A defendant's
objection on grounds of hearsay is critical. This is so
because "[o]therwise inadmissible hearsay evidence may
be considered for substantive purposes and is sufficient to
establish a material fact at issue when the hearsay evidence
is admitted without a timely objection at trial."
Banks v. State, 567 N.E.2d 1126, 1129 (Ind. 1991).
Had a proper objection been raised to Brooks' written
statement the trial court would have been required to sustain
it. See Modesitt, 578 N.E.2d at 653-54. By failing
to raise a proper objection counsel's conduct fell below
an objective standard of reasonableness and was thus
Failure to request an admonishment
State contends counsel did not perform deficiently in failing
to request an admonishment. In this regard the State
essentially reprises its argument concerning trial strategy.
According to the State, "either requesting a limiting
instruction or objecting to the trial court's instruction
on prior inconsistent statements would have undermined the