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Humphrey v. State

Supreme Court of Indiana

May 5, 2017

Trondo L. Humphrey, Appellant (Petitioner below),
State of Indiana, Appellee (Respondent below).

         Appeal from the Madison Circuit Court 3 Nos. 48C03-1206-PC-19 and 48D03-9511-CF-417 The Honorable Thomas Newman, Jr., Judge

         On Petition To Transfer from the Indiana Court of Appeals, No. 48A02-1508-PC-1238

          Attorneys for Appellant Stephen T. Owens Public Defender of Indiana, John Arthur Pinnow Deputy Public Defender Indianapolis, Indiana

          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

          RUCKER, JUSTICE.

         On a 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.

         Facts and Procedural History

         Humphrey 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 gun.
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 pressure.

Humphrey v. State, 680 N.E.2d 836, 837-38 (Ind. 1997) [hereinafter Humphrey I] (footnotes omitted).

         Humphrey 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.

         Fifteen 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.

         The 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 forth below.

         Standard of Review for Post-Conviction Proceedings

         "The 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).

         Standard of Review for Ineffective Assistance of Counsel

         When 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).


         I. Deficient Performance

         A. Trial strategy

         In its 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 4).

         The 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 shooter.

         In 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.

         In 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."[1]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.

         There 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 counsel's decision-making.

         B. Failure to object on hearsay grounds

         At 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 observed:

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 deficient.

         C. Failure to request an admonishment

         The 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 ...

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