Antonio D. Rose v. State of Indiana ( 2014 )


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  •  Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before any
    court except for the purpose of
    Aug 21 2014, 9:28 am
    establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
    STEPHEN T. OWENS                                   GREGORY F. ZOELLER
    Public Defender of Indiana                         Attorney General of Indiana
    KATHLEEN CLEARY                                    BRIAN REITZ
    Deputy Public Defender                             Deputy Attorney General
    Indianapolis, Indiana                              Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    ANTONIO D. ROSE,                                   )
    )
    Appellant-Petitioner,                       )
    )
    vs.                                     )       No. 45A03-1312-PC-478
    )
    STATE OF INDIANA,                                  )
    )
    Appellee-Respondent.                        )
    APPEAL FROM THE LAKE SUPERIOR COURT
    The Honorable Thomas P. Stefaniak, Jr., Judge
    Cause No. 45G04-1211-PC-018
    August 21, 2014
    MEMORANDUM DECISION – NOT FOR PUBLICATION
    MATHIAS, Judge
    Antonio D. Rose (“Rose”) challenges the Lake Superior Court’s denial of his
    petition for post-conviction relief. On appeal, Rose presents three issues, which we
    restate as:
    I.     Whether the post-conviction court erred in concluding that Rose’s trial
    counsel was not ineffective for failing to preserve for appeal the issue of
    whether the trial court improperly limited Rose’s cross-examination of the
    State’s key witness regarding another, unrelated burglary charge pending
    against that witness;
    II.    Whether the post-conviction court erred in concluding that Rose’s appellate
    counsel was not ineffective for not presenting the issue of the trial court’s
    limitation of Rose’s cross-examination of this witness; and
    III.   Whether the post-conviction court erred in concluding that Rose was not
    deprived of due process of law when the State failed to disclose to Rose
    prior to his sentencing that it had reached a plea agreement with this
    witness in the unrelated burglary charge.
    We affirm.
    Facts and Procedural History
    The facts underlying Rose’s convictions were set forth in our memorandum
    decision in Rose’s direct appeal:
    On July 14, 2007, Larry Williams was walking by himself in Gary when he
    encountered Rose and William Pope, who intended to rob Williams. Pope
    struck Williams, and Williams pulled out a knife. Pope struck Williams
    again, and Williams fell to the ground. Pope kicked Williams in the head
    repeatedly, and Rose kicked Williams’ body several times. Rose also
    “stood on top of” Williams and hit him four times in the jaw. Finally, Pope
    took $12 from Williams, and Pope and Rose left the scene. Williams died
    as a result of his injuries.
    Rose v. State, No. 45A03-0808-CR-419, 
    2009 WL 588925
    , slip op. at 2 (Ind. Ct. App.
    Mar. 6, 2009) (record citation omitted).
    2
    As a result of this incident, on December 8, 2007 the State charged Rose with
    murder, felony murder, and robbery. On May 29, 2008, a jury found Rose guilty of
    felony murder, robbery, and the lesser included offense of aggravated battery, but the trial
    court entered judgment only on the felony murder conviction and sentenced Rose to fifty-
    six years executed. 
    Id.
    On direct appeal, Rose argued that there was no evidence that he knowingly or
    intentionally robbed Williams and that his felony murder conviction thereby could not
    stand. We rejected this argument, noting that both Pope’s testimony and Rose’s own
    testimony indicated that they had intended to rob Williams. 
    Id.,
     slip op. at 3. Rose also
    claimed that the trial court’s sentence constituted an abuse of discretion and was
    disproportionate to his role in the crime. We again rejected these claims, noting that
    Rose was a willing and active participant in a brutal, fatal beating of a man for $12. 
    Id.,
    slip op. at 4.
    Rose subsequently filed a pro se petition for post-conviction relief on November
    19, 2012. Rose filed an amended petition, by counsel, on May 28, 2013. The post-
    conviction court held an evidentiary hearing on Rose’s petition on July 25, 2013, and
    issued findings of fact and conclusions of law on November 14, 2013, denying Rose’s
    petition. Rose now appeals.
    Post-Conviction Standard of Review
    Post-conviction proceedings are not “super appeals” through which convicted
    persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State,
    
    761 N.E.2d 389
    , 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners
    3
    a limited opportunity to raise issues that were unavailable or unknown at trial and on
    direct appeal. Davidson v. State, 
    763 N.E.2d 441
    , 443 (Ind. 2002). A post-conviction
    petitioner bears the burden of establishing grounds for relief by a preponderance of the
    evidence. Henley v. State, 
    881 N.E.2d 639
    , 643 (Ind. 2008). On appeal from the denial
    of post-conviction relief, the petitioner stands in the position of one appealing from a
    negative judgment. 
    Id.
     To prevail on appeal from the denial of post-conviction relief, the
    petitioner must show that the evidence as a whole leads unerringly and unmistakably to a
    conclusion opposite that reached by the post-conviction court. Id. at 643-44.
    Where, as here, the post-conviction court makes findings of fact and conclusions
    of law in accordance with Indiana Post-Conviction Rule 1(6), we must determine if the
    court’s findings are sufficient to support its judgment. Graham v. State, 
    941 N.E.2d 1091
    ,
    1096 (Ind. Ct. App. 2011), aff’d of reh’g, 
    947 N.E.2d 962
    . Although we do not defer to
    the post-conviction court’s legal conclusions, we review the post-conviction court’s
    factual findings under a clearly erroneous standard.      
    Id.
       Accordingly, we will not
    reweigh the evidence or judge the credibility of witnesses, and we will consider only the
    probative evidence and reasonable inferences flowing therefrom that support the post-
    conviction court’s decision. 
    Id.
    I. Assistance of Trial Counsel
    Rose’s first claim is that his trial counsel was ineffective. In Timberlake v. State,
    our supreme court summarized the law regarding claims of ineffective assistance of trial
    counsel as follows:
    4
    A defendant claiming a violation of the right to effective assistance of
    counsel must establish the two components set forth in Strickland v.
    Washington, 
    466 U.S. 668
     (1984). First, the defendant must show that
    counsel’s performance was deficient. This requires a showing that
    counsel’s representation fell below an objective standard of reasonableness,
    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. Second, the
    defendant must show that the deficient performance prejudiced the defense.
    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. A reasonable probability is a
    probability sufficient to undermine confidence in the outcome.
    Counsel is afforded considerable discretion in choosing strategy and
    tactics, and we will accord those decisions deference.             A strong
    presumption arises that counsel rendered adequate assistance and made all
    significant decisions in the exercise of reasonable professional judgment.
    The Strickland Court recognized that even the finest, most experienced
    criminal defense attorneys may not agree on the ideal strategy or the most
    effective way to represent a client. Isolated mistakes, poor strategy,
    inexperience, and instances of bad judgment do not necessarily render
    representation ineffective. The two prongs of the Strickland test are
    separate and independent inquiries. Thus, [i]f it is easier to dispose of an
    ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
    course should be followed.
    
    753 N.E.2d 591
    , 603 (Ind. 2001) (citations and quotations omitted).
    In the present case, Rose claims that his trial counsel’s performance was deficient
    because he failed to properly preserve for appeal the issue of whether the trial court erred
    in limiting the scope of Rose’s cross-examination of Pope.            For purposes of our
    discussion, we assume arguendo that Rose’s trial counsel failed to properly preserve the
    issue for appeal, and we can instead focus on the question of whether the trial court erred
    in limiting the scope of Rose’s cross-examination of Pope. Simply said, if the trial court
    did not err in limiting Rose’s cross-examination of Pope, then the fact that Rose’s trial
    5
    counsel did not preserve the issue for appeal is irrelevant, because even if the issue had
    been preserved, Rose would not have prevailed on direct appeal.
    Rose argues that the trial court erred by limiting the scope of his cross-
    examination of Pope with regard to an unrelated Class B felony burglary charge that was
    pending against Pope. Specifically, Pope was arrested on October 17, 2007, shortly after
    the attack in this case, and charged as a juvenile with Class C felony burglary. Then, on
    May 13, 2008—shortly before the trial in the present case—the juvenile burglary case
    was transferred to adult court, and the charge was amended to allege Class B felony
    burglary.1
    The trial court granted the State’s pre-trial motion in limine to prevent Rose from
    asking Pope about this unrelated charge. The State explained in a pre-trial hearing that it
    had no intention to give Pope any favorable consideration in the burglary case in
    exchange for his testimony against Rose. Indeed, the prosecuting attorney noted that
    Pope had already received a bargain for agreeing to plead guilty and testify against Rose
    in the murder case, and that “there [was] going to be no more consideration for his
    testimony [against Rose].” Tr. pp. 109-10.
    Importantly, although Rose was prevented from presenting to the jury any
    evidence of the pending burglary charge, he was able to cross-examine Pope regarding
    the plea agreement he had with the State in the murder case. Under cross-examination,
    Pope admitted that he had made a plea agreement in exchange for testifying against Rose
    1
    As discussed below, Pope later pleaded guilty to the lesser-included charge of Class D felony theft on
    July 15, 2008, just two days before Rose was sentenced.
    6
    and that he received a sentence of only thirty years, despite his more active, and arguably
    more culpable, role in the victim’s death.
    Rose now claims that the trial court’s ruling limiting his cross-examination of
    Pope regarding the burglary charge was a violation of his constitutional rights to cross-
    examine the witnesses against him. In support of his argument, Rose cites Davis v.
    Alaska, 
    415 U.S. 308
     (1974).
    In Davis the defendant was convicted of burglary and grand larceny after the trial
    court had prohibited him from cross-examining a key State witness with regard to the fact
    that the witness was on probation for a juvenile adjudication for burglary. The witness
    had identified Davis as one of the men he had encountered and spoke to as they stood
    next to a car near the scene of the burglary. The defense wanted to show that the
    witness’s fear of having his probation revoked influenced his testimony; that is, the
    defense wanted to capitalize on the witness’s fear of being considered a suspect and his
    fear that unfavorable testimony might affect his probationary status. The trial court had
    prevented Davis from questioning the witness in this regard, citing an Alaska rule
    prohibiting the admission of such juvenile records in a court proceeding. Because of the
    exclusion of this evidence, the witness provided deceptive testimony by denying that law
    enforcement officials had ever questioned him, and his testimony went unchallenged due
    to the trial court’s exclusion of the witness’s juvenile record. The United States Supreme
    Court granted certiorari in Davis and held that the trial court’s act of limiting Davis’s
    cross-examination of the juvenile witness regarding this impeaching evidence constituted
    7
    a denial of Davis’s Sixth Amendment right to confront the witnesses against him. 
    Id. at 317-18
    .
    Rose claims that Davis supports his claim that he had a Sixth Amendment right to
    question Pope regarding the pending burglary charge against him. We, however, find
    Davis to be distinguishable. The witness in Davis had provided deceptive testimony by
    denying that he had ever been questioned by the police. 
    Id. at 313-14
    .          And this
    testimony went unchallenged due to the trial court’s exclusion of the witness’s juvenile
    record. 
    Id.
     Here, however, there was nothing deceptive about Pope’s testimony. See
    Martin v. State, 
    736 N.E.2d 1213
    , 1220 (Ind. 2000) (distinguishing Davis by noting that
    there was nothing deceptive about the testimony of the witness at issue regarding his
    adjudications or prior encounters with law enforcement).
    Additionally, Rose’s trial counsel was able to thoroughly cross-examine Pope
    regarding his involvement with the robbery and murder of Williams and the favorable
    treatment he had received as a result of his plea agreement with the State. Thus, the jury
    was well aware of Pope’s biases and had the information it needed to question his
    credibility. Exposing the jury to the fact that Pope also had another pending charge
    would not have made his testimony any less credible or his bias any greater. In this
    respect, the facts of the present case are directly on point with those in Logan v. State,
    
    729 N.E.2d 125
     (Ind. 2000).
    In Logan, the trial court excluded evidence regarding the juvenile record of a
    State’s witness. On appeal, the defendant claimed that this was in violation of his Sixth
    Amendment right to confront this witness, citing Davis. Our supreme court rejected this
    8
    claim, noting that defense counsel was able to “vigorously” cross-examine the witness
    and impeach him regarding lies he had told to the police, his involvement with the crime,
    and his bias associated with his plea agreement. Id. at 134. The Logan court also
    rejected Logan’s claim that the admission of the juvenile record would have shown “extra
    incentive” for Harrison to testify against him:
    However, unlike this case, in Davis the trial court’s decision not to allow
    the introduction of a witness’s juvenile adjudication precluded the
    defendant from presenting any evidence of bias. Such is not the case here.
    Logan was able to present evidence of Harrison’s alleged bias to the jury.
    We fail to see how this alleged extra incentive was necessary for a fair
    determination of guilt or innocence. The jury was aware that Harrison
    received favorable treatment from the State in exchange for his testimony
    against Logan. The juvenile adjudication would have added little, if
    anything, to Logan’s impeachment of Harrison.
    Id. at 134-35 (emphasis added).
    The same is true here. Unlike in Davis, Rose was able to present ample evidence
    of Pope’s bias. And we fail to see how evidence regarding the pending, unrelated
    burglary charge against Pope would added much, if anything, to Rose’s impeachment of
    Pope. As in Logan, the jury was well aware that Pope had received favorable treatment
    from the State in exchange for his testimony against Rose.2
    Following Logan, we conclude that the trial court did not err in limiting the Rose’s
    cross-examination of Pope regarding the pending, unrelated burglary charge. Therefore,
    2
    For this reason, we also find Smith v. State, 
    721 N.E.2d 213
     (Ind. 1999), cited by Rose, to be
    distinguishable. In Smith, the court held that the trial court had erred by preventing the defendant from
    cross-examining two of the State’s witnesses regarding unrelated charges pending against them. Id. at
    219-20. In Smith, this prevented the defendant from exposing the biases of these witnesses. See id. Here,
    however, Rose had already clearly established the Pope’s bias and his motivation to testify against Rose.
    Thus, we find this case more similar to Logan than to Smith.
    9
    Rose’s trial counsel’s performance was not deficient for failing to preserve this issue for
    appeal, because even if it had been preserved, Rose would not have been successful on
    direct appeal. Accordingly, the post-conviction court did not clearly err in rejecting
    Rose’s claim of ineffective assistance of trial counsel.
    II. Assistance of Appellate Counsel
    Rose also claims that, if his trial counsel did properly preserve the issue of the trial
    court’s limitation of his cross-examination of Pope, then his appellate counsel was
    ineffective for failing to present this issue on direct appeal. When we review claims of
    ineffective assistance of appellate counsel, we use the same standard applied to claims of
    ineffective assistance of trial counsel. Harris v. State, 
    861 N.E.2d 1182
    , 1186 (Ind. 2007).
    That is, the post-conviction petitioner must show that appellate counsel’s performance
    fell below an objective standard of reasonableness and that there is a reasonable
    probability that but for the deficient performance of counsel the result of the proceeding
    would have been different. 
    Id.
    Here, Rose’s claim of ineffective assistance of appellate counsel is based wholly
    on his claim that the trial court erred in limiting his cross-examination of Pope regarding
    his pending, unrelated burglary charge. However, we have already concluded above that
    the trial court did not err in limiting Rose’s cross-examination of Pope. Therefore, even
    if Pope’s appellate counsel had presented this issue on appeal, it would not have been
    successful. Rose’s appellate counsel cannot be said to have been ineffective for failing to
    present a claim that would not have been successful. Accordingly, the post-conviction
    10
    court did not clearly err in rejecting Rose’s claim of ineffective assistance of appellate
    counsel.
    III. Denial of Due Process
    Lastly, Rose claims that he was denied the due process of law at the sentencing
    when the State failed to inform him that, in the unrelated burglary case, Pope agreed to
    plead guilty to the lesser offense of Class D felony theft on July 15, 2008, just two days
    prior to Rose’s sentencing. Rose does not couch this argument in terms of ineffective
    assistance of counsel. Instead, his argument is simply that the State’s failure to disclose
    Pope’s plea to Class D felony theft constitutes a Brady violation that deprived him of due
    process.
    In Brady v. Maryland, the United States Supreme Court held that “the
    suppression by the prosecution of evidence favorable to an accused upon
    request violates due process where the evidence is material either to guilt or
    to punishment, irrespective of the good faith of the prosecution.” 
    373 U.S. 83
    , 87, 
    83 S. Ct. 1194
    , 1196-97, 
    10 L.Ed.2d 215
    , 218 (1963). To prevail on
    a Brady claim, a defendant must establish: (1) that the prosecution
    suppressed evidence; (2) that the evidence was favorable to the defense;
    and (3) that the evidence was material to an issue at trial. Id.; United States
    v. Bagley, 
    473 U.S. 667
    , 685, 
    105 S. Ct. 3375
    , 3385, 
    87 L.Ed.2d 481
    (1985). Evidence is “material” only if there is a “reasonable probability
    that, had the evidence been disclosed to the defense, the result of the
    proceeding would have been different.” Bagley, 
    473 U.S. at 685
    , 
    105 S. Ct. at 3385
    , 
    87 L.Ed.2d at 496
    .
    Minnick v. State, 
    698 N.E.2d 745
    , 755 (Ind. 1998).
    11
    Here, even if we assume that the prosecution “suppressed” the evidence of Pope’s
    conviction,3 we still cannot say that Rose has established a Brady violation. This is so
    because we agree with the post-conviction court that Rose has not established that the
    evidence of Pope’s plea agreement was “material,” i.e., that there was a reasonable
    probability that, had Pope’s plea been disclosed to the defense, that the result of the
    proceeding—Pope’s sentencing hearing—would have been different.
    Rose claims that the information regarding the plea in the burglary case is proof
    that Pope did, in fact, receive favorable consideration in that case for testifying against
    Rose in the murder case. However, the post-conviction court clearly rejected this, finding
    that there was “no evidence that Pope received a deal in his burglary case in exchange for
    his testimony against Rose in the murder trial.” Appellant’s App. p. 96. Rose points us
    to no evidence that would cause us to conclude that this finding was clearly erroneous.
    The simple fact that Pope later pleaded guilty to a lesser offense in the burglary case does
    not prove, ipso facto, that the State agreed to this plea because of Pope’s testimony
    against Rose in the murder case.
    But even if Pope’s plea to Class D felony theft in the burglary case was evidence
    of a quid pro quo with the State for his testimony in Rose’s case, we still fail to see how
    this would have benefited Rose in such a manner as to lead to a different sentence. The
    3
    Rose notes that his trial counsel was unaware of Pope’s plea in the burglary case until shortly before the
    post-conviction hearing. We would note, however, that conviction records are generally a matter of
    public record and should be relatively easy to obtain. And we note that, here, Rose was well aware of the
    pending charges against Pope in the burglary case. Thus, this case is unlike State v. Hollin, 
    970 N.E.2d 147
    , 153-54 (Ind. 2012), where the court held that the State had committed a Brady violation by not
    disclosing to the defendant that the State’s witness had other pending charges against him and a pending
    petition to revoke his probation.
    12
    fact that Pope pleaded guilty to a lesser sentence in a wholly unrelated crime has little to
    no bearing on his role in the murder of Williams. As such, we cannot say that this
    information would have been significantly mitigating at Rose’s sentencing.4
    Because the information regarding Pope’s plea agreement in his burglary case was
    neither favorable nor material, there was no Brady violation even if we assumed the State
    “suppressed” this evidence. Therefore, the post-conviction court did not clearly err in
    denying Rose’s claim of a Brady violation when the State did not inform him that Pope
    had pleaded guilty immediately before Rose’s sentencing hearing.
    Conclusion
    The post-conviction court did not clearly err in rejecting Rose’s claims of
    ineffective assistance of trial counsel and ineffective assistance of appellate counsel
    because the trial court did not violate Rose’s constitutional rights to confrontation when it
    limited his cross-examination of Pope with regard to Pope’s pending, unrelated charge
    for burglary. Nor did the post-conviction court clearly err when it concluded that there
    had been no Brady violation when the State did not inform Rose that Pope had pleaded
    guilty in the unrelated crime before Rose’s sentencing hearing.
    Affirmed.
    RILEY, J., and CRONE, J., concur.
    4
    We note that Rose does not claim that there was a Brady violation by the fact that Pope’s plea in the
    burglary case was not disclosed to the defense before trial. At the time of the trial, Pope had not yet
    pleaded guilty in the burglary case. Thus, Rose can only claim that a Brady violation occurred with
    regard to his sentencing hearing.
    13