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Lee v. State

Court of Appeals of Indiana

December 27, 2017

Dorian Lee, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent.

         Appeal from the St. Joseph Superior Court, The Honorable Jane Woodward Miller, Judge, Trial Court Cause No. 71D01-0305-PC-20.

          APPELLANT PRO SE Dorian Lee Carlisle, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana.

          BAILEY, JUDGE.

         Case Summary

         [¶1] Dorian Lee ("Lee") appeals, pro se, the post-conviction court's denial of his amended petition for post-conviction relief. We affirm.

         Issues

         [¶2] On appeal, Lee raises multiple ineffective assistance of trial and appellate counsel claims, which we restate as follows:

I. Whether Lee's trial counsel was ineffective for failing to object to jury instructions regarding accomplice liability for murder.
II. Whether Lee's trial counsel was ineffective for failing to object to jury instructions regarding attempted murder.
III. Whether Lee's trial counsel was ineffective for failing to object to jury instructions and prosecutor's statements regarding accomplice liability for attempted murder.
IV. Whether Lee's trial counsel was ineffective for failing to object to jury instructions that created a "mandatory presumption."
V. Whether Lee's trial counsel was ineffective for failing to raise the lack of evidence that Lee attempted to murder Janice Boyd.
VI. Whether Lee's trial counsel was ineffective for failing to properly impeach adverse witnesses.
VII. Whether Lee's trial counsel was ineffective for failing to properly conduct discovery.
VIII. Whether Lee's trial counsel was ineffective for failing to seek a trial separate from Lee's co-defendants.
IX. Whether Lee's trial counsel was ineffective for failing to object to the admission of a firearm because it was obtained pursuant to an illegal search.
X. Whether Lee's appellate counsel was ineffective for failing to raise Lee's trial counsel's ineffective assistance.

         Facts and Procedural History

         [¶3] The facts underlying Lee's convictions were set out in the Indiana Supreme Court's decision on Lee's direct appeal:

On June 12, 1995, [Lee], along with two armed men, Terrance Mitchem and Michael Greer, broke and entered a home occupied by four adults. [Lee] raped one of the female victims and participated in the shooting of all four victims. One victim was killed, [1] while the other three survived.[2]

Lee v. State, 684 N.E.2d 1143, 1145 (Ind. 1997). We will provide additional facts as needed.

         [¶4] Following a December 1995 jury trial in which Lee was tried jointly with co- defendants Terrance Mitchem ("Mitchem") and Michael Greer ("Greer"), Lee was convicted of murder;[3] burglary, as a Class B felony;[4] three counts of attempted murder, as Class A felonies;[5] and rape, as a Class A felony.[6] Lee filed a direct appeal in which our Supreme Court upheld his convictions. Lee, 684 N.E.2d at 1150.

         [¶5] On May 8, 2003, Lee filed a petition for post-conviction relief ("PCR"). On September 4, 2007, Lee filed a motion for an indefinite continuance of his PCR petition, and the trial court granted the motion. On May 1, 2015, Lee filed an amended petition for PCR in which he raised numerous allegations of ineffective assistance of trial and appellate counsel. The court held a post-conviction evidentiary hearing on May 27, 2016, and October 29, 2016. On January 11, 2017, the post-conviction court issued its order denying Lee's petition. This appeal ensued.

         Discussion and Decision

         Standard of Review

         [¶6] Lee appeals the post-conviction court's denial of his amended petition for post- conviction relief. Our standard of review is clear:

[The petitioner] bore the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Because he is now appealing from a negative judgment, to the extent his appeal turns on factual issues, [the petitioner] must convince this Court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post[-]conviction court. Harrison v. State, 707 N.E.2d 767, 773 (Ind. 1999) (citing Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995)). We will disturb the decision only if the evidence is without conflict and leads only to a conclusion contrary to the result of the post[-]conviction court. Id. at 774.
Post[-]conviction procedures do not afford a petitioner with a super-appeal, and not all issues are available. Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). Rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post[-]conviction rules. P C.R. 1(1); Rouster, 705 N.E.2d at 1003. If an issue was known and available, but not raised on direct appeal, it is waived. Rouster, 705 N.E.2d at 1003. If it was raised on appeal, but decided adversely, it is res judicata. Id. (citing Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994)). If not raised on direct appeal, a claim of ineffective assistance of trial counsel is properly presented in a post[-]conviction proceeding. Woods v. State, 701 N.E.2d 1208, 1215 (Ind. 1998). A claim of ineffective assistance of appellate counsel is also an appropriate issue for post[-]conviction review. As a general rule, however, most free-standing claims of error are not available in a post[-] conviction proceeding because of the doctrines of waiver and res judicata. Some of the same contentions, to varying degrees, may be properly presented in support of a claim of ineffective assistance of trial or appellate counsel.

Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001).

         Ineffective Assistance of Trial Counsel

         [¶7] Lee contends that his trial counsel was ineffective. As our Supreme Court has noted:

[t]his Court reviews claims of ineffective assistance of counsel under the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel's performance was deficient. Id. at 687, 104 S.Ct. 2052. This requires a showing that counsel's representation fell below an objective standard of reasonableness, id. at 688, 104 S.Ct. 2052, and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment, id. at 687, 104 S.Ct. 2052. Second, the defendant must show that the deficient performance prejudiced the defendant. Id. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002); see also Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001) (citation omitted) ("In order to prove ineffective assistance of counsel due to the failure to object, a defendant must prove that an objection would have been sustained if made and that he was prejudiced by the failure.").

         [¶8] We will not second-guess trial counsel's strategy and tactics unless they are so unreasonable that they fall outside objective standards. See, e.g., Benefield v. State, 945 N.E.2d 791, 797 (Ind.Ct.App. 2011). Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Wentz, 766 N.E.2d at 361. And if we can dispose of a claim of ineffective assistance of counsel by analyzing the prejudice prong alone, we will do so. Benefield, 935 N.E.2d at 797 (citing Wentz, 766 N.E.2d at 360).

         [¶9] Lee raises eight ineffective assistance of trial counsel claims, each of which we address in turn.

         1. Failure to object to jury instructions regarding accomplice liability for murder

         [¶10] Lee was charged, as a principal, with the murder of Victor Hill, and the State also tried Lee as an accomplice to that murder.[7] Lee contends that the jury instructions regarding accomplice liability for murder[8] were improper because they did not inform the jury that, in order to find Lee guilty as an accomplice, it must find that those whom he was aiding acted with the knowing or intentional mens rea for murder. In support, he cites the Court of Appeals case Taylor v. State, 820 N.E.2d 691, 695 (Ind.Ct.App. 2005). However, that decision was vacated by our Supreme Court, which specifically held that a defendant can be found guilty of murder for intentionally aiding and abetting a principal to kill a victim so long as the principal killed the victim and the defendant knew or intended that the victim would be killed. Taylor v. State, 840 N.E.2d 324, 335-36 (Ind. 2006). This is so even if the principal did not "knowingly or intentionally" kill the victim. Id. Thus, a defendant can be found guilty of a greater degree of homicide than the principal; in such a situation, the defendant's mens rea would be more culpable than that of the principal. Id. Therefore, the post-conviction court did not err in ruling that Lee's trial counsel was not ineffective for failing to object that the jury instructions regarding accomplice liability for murder did not require the jury to find that the principal had the specific mens rea to kill.

         2. Failure to object to jury instructions regarding attempted murder

         [¶11] Lee maintains that the jury instructions regarding attempted murder were improper because they included the information in six counts against Lee, including Counts III through V, which used the word "knowingly" in relation to the element of mens rea for attempted murder.[9] In support, he cites Spradlin v. State, which held that jury instructions regarding a charge of direct liability for attempted murder must inform the jury that the State must prove beyond a reasonable doubt that the defendant acted with the specific intent to kill and took a substantial step toward such killing. 569 N.E.2d 948, 950-51 (Ind. 1991); see also Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015) (noting that Spradlin related to direct liability, rather than accomplice liability, for attempted murder). The "Spradlin rule" is necessary because of "the higher sentence range for attempted murder in combination with the ambiguity involved in the proof of that crime." Ramsey v. State, 723 N.E.2d 869, 872 (Ind. 2000). Lee maintains that, because the instruction quoting the charging information on murder included the word "knowingly, " it erroneously led the jury to believe it could convict him of attempted murder upon a showing that he merely "knew" he was acting, regardless of his intent in acting. We disagree.

         [¶12] Lee is correct that an instruction that informs the jury that a "knowingly" mens rea, alone, is sufficient to establish guilt, as a principal, of attempted murder constitutes fundamental error. Spradlin, 569 N.E.2d at 950-51. However, that is not what the jury instructions regarding direct liability for attempted murder stated in Lee's case. We do not read segments of a jury instruction in isolation; rather, we consider the instructions as a whole. Price v. State, 765 N.E.2d 1245, 1252 (Ind. 2002). Here, the jury instructions as a whole informed the jury that, in order to find Lee guilty of attempted murder, "it is not enough that [he] engaged in the proscribed conduct, " i.e., that he acted knowingly. Tr. R. Vol. I at 156. The instruction then states that the jury must find the defendant acted "with the specific intention of accomplishing the killing" of another human being. Id. The instruction on attempted murder also stated that the State had to prove beyond a reasonable doubt Lee's "intent to kill" the victim. Id. at 153. Therefore, there was no Spradlin error in the jury instructions, and trial counsel was not ineffective for failing to object on that basis. See Ramsey v. State, 723 N.E.2d 869, 872-73 (Ind. 2000) (finding the jury instructions as a whole sufficiently informed the jury of the specific intent requirement for attempted murder, despite the use of the word "knowingly" in one of the instructions).

         3. Failure to object to jury instructions and prosecutor's statements regarding accomplice ...


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