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Pierce v. State

Court of Appeals of Indiana

November 14, 2019

Donald A. Pierce, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent.

          Appeal from the Crawford Circuit Court The Honorable Sabrina R. Bell, Judge Trial Court Cause No. 13C01-1204-PC-1

          ATTORNEY FOR APPELLANT A. David Hutson Hutson Legal Jeffersonville, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

          Najam, Judge.

         Statement of the Case

         [¶1] Donald A. Pierce appeals the post-conviction court's denial of his petition for post-conviction relief. Pierce raises five issues for our review, which we restate as the following two issues:

1. Whether the post-conviction court's findings and conclusions are adequate.
2. Whether the post-conviction court clearly erred when it found and concluded that Pierce had not received ineffective assistance from his trial counsel.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] The facts underlying Pierce's multiple child molesting convictions were detailed by this Court in his direct appeal:

The facts most favorable to the jury's verdict indicate that J.W. was born on October 10, 1995. Her parents eventually divorced, and J.W. lived with her mother, Michelle. Michelle began dating Donald A. Pierce, and around the time J.W. was turning ten years old, Pierce moved into the home J.W. shared with her mother. Due to Michelle's work schedule, Pierce regularly spent time alone with J.W.
One day, in April of 2006, Pierce was home alone with J.W. when he began touching her on her vagina through her clothes. Pierce then asked J.W. if she wanted to play a game. Pierce instructed J.W. to take off her clothes and lie on the couch. Pierce removed his clothes, laid on top of J.[W]., and put his "private" on her "private." Pierce then began to move up and down on top of J.W. After Pierce was finished, J.W. discovered that her "private" was all wet. J.W. felt disgusted.
Pierce and J.W. played that "game" again the following weekend. They played the game approximately every other weekend, when J.W. was not visiting her father, for over one year. On some occasions, Pierce put his mouth on J.W.'s "private." On some occasions, Pierce put his penis inside J.W.'s "private." And, on some occasions, Pierce touched J.W.'s "private" with his hand.

Pierce v. State, No. 13A04-0908-CR-480, 2010 WL 4253698, at *1 (Ind.Ct.App. Jan. 6, 2011) (citations omitted), summarily aff'd in relevant part and vacated on other grounds, 949 N.E.2d 349, 351 (Ind. 2011). On direct appeal, we affirmed Pierce's convictions and remanded with instructions for the trial court to correct a sentencing error. Id. However, on transfer, our Supreme Court exercised its discretion to revise Pierce's sentence pursuant to Indiana Appellate Rule 7(B). 949 N.E.2d at 352-53. In all other respects, our Supreme Court declined to review our Court's resolution of Pierce's appeal. Id. at 351.

         [¶4] Thereafter, Pierce filed an amended petition for post-conviction relief in which he alleged that he had received ineffective assistance from his trial counsel. In particular, Pierce first alleged he had received ineffective assistance because his

trial counsel failed to investigate potential exculpatory evidence. She failed to obtain medical and/or psychological notes and/or police reports that would have included information that could have been used to impeach J.W. Pierce's trial counsel failed to conduct a full fact investigation and to call witnesses who could have supported Pierce's innocence.

Appellant's App. Vol. 2 at 54. He further alleged that his trial counsel had rendered ineffective assistance when she had "failed to object to child abuse syndrome evidence and other prejudicial evidence." Id. And he alleged that his counsel had ineffectively failed to "withdraw from Pierce's representation when a personal conflict of interest arose during the trial." Id.

         [¶5] Following an evidentiary hearing, the post-conviction court rejected each of Pierce's three alleged bases of ineffective assistance of trial counsel. Regarding Pierce's claim that his trial counsel had failed to investigate, the post-conviction court found and concluded as follows:

28. Trial [c]ounsel testified that she believed she had obtained the child's mental health records and would have passed them on if she had them in her possession.
29. The counseling records were admitted as an exhibit at the post-conviction hearing. No evidence was admitted that showed that[, ] had the records been admitted, the outcome of the trial would have been different.
30. Trial counsel testified that she did not subpoena the Kosair [Hospital] records because, based on her experience, she did not expect anything useful to be found in those records. The records did not reveal anything that would indicate a change in the outcome of the trial.
31. Kosair Hospital records were admitted as an exhibit at the post-conviction hearing and contained the following information:
a. The records state that "Pt. disclosed to paternal grandparents that her mother's boyfriend had been in bed with her '3 or 4 times.' She states she woke up from sleep with him on top of her. Las[t] time was about 2 months ago. Had her first period about 1 month ago?["]
b. The records also state "11 y/o Caucasian . . . being allegedly sexually assaulted by mom's boyfriend. Has happened several times over last few months [indecipherable.] He puts his private in her private . . . puts [sic] like to have a baby . . . ."
** *
32. Trial [c]ounsel testified she attempted to have an expert witness, a psychiatrist from Indianapolis, to try to find something to say that what [Pierce] was saying was the truth.
33. Trial [c]ounsel testified she made the decision not to call the witness because his testimony would have been very damaging.
34. Further, she kept the information as attorney work product.
35. Trial [c]ounsel testified that Amy Razor admitted she would perjure herself and give [Pierce] an alibi.
36. Trial [c]ounsel testified her own witnesses had nothing to add.
** *
Failure to Subpoena Kosair Records
34. Trial counsel did not subpoena the child's medical records from Kosair Hospital[] because[, ] in her experience, there was nothing of consequence that would come from the records.
35. The records from Kosair Hospital were admitted at the post-conviction hearing. There was no evidence admitted that the admission of the records would have changed the outcome of the trial.
** *
Failure to Subpoena Counseling Records
37. Trial counsel believed she had obtained all of the child's mental health records, and [she] would have passed them on if she had them in her possession.
** *
39. Trial [c]ounsel testified that she did obtain the mental health records. There was no evidence presented that the mental health records would have been admitted into evidence or that the admission of the counseling records would change the outcome of trial.
[Failure to Call Witnesses]
40. Trial counsel's failure to call witnesses is a matter of strategy on counsel's part . . . .
41. Trial [c]ounsel chose not to call the previously mentioned witnesses because they had nothing to add and she had a duty to prevent putting what she knew to be false information before the Court.

Id. at 151-52, 159-60.

         [¶6] Regarding Pierce's claim that his trial counsel had rendered ineffective assistance by failing to object to the admission of certain evidence at trial, the post-conviction court found and concluded as follows:

21. Trial [c]ounsel testified the whole defense was that the victim was a liar.
22. Trial [c]ounsel testified that victim's therapist, Teresa Faulkner, believed the victim.
23. At trial, the State, without objection from trial counsel, elicited testimony from Teresa Faulkner . . . as to the types of behaviors exhibited in children who have been abused, the profile of a typical child molesting victim, and the way that abuse by a child molester begins.
24. Trial counsel did not object to this testimony because, based on her experience, including observations of that particular trial court judge, she did not think such an objection would be sustained.
25. Trial [c]ounsel testified she did not cross-examine the therapist and wanted her ...

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