Donielle Sims v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
Dec 16 2014, 10:46 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DONIELLE SIMS GREGORY F. ZOELLER
Michigan City, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DONIELLE SIMS, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1404-PC-120
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence Murray, Judge
Cause No. 45G02-1111-PC-8
December 16, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Donielle Sims, pro se, appeals the post-conviction court’s denial of his petition for
post-conviction relief, raising one issue for our review: whether Sims was denied the
right to effective assistance of trial counsel. Concluding the post-conviction court
properly denied Sims’s petition, we affirm.
Facts and Procedural History
The facts relevant to Sims’s underlying convictions were recounted by this court
in a memorandum decision on Sims’s direct appeal:
The evidence most favorable to the conviction is that on December
17, 2008, as Tamicka Smith returned to her apartment in Gary, she was
approached by Sims, who was holding a gun and told her to hurry up and
open her door. When Smith was unable to open her door quickly, Sims
threatened to shoot her and punched her in the temple. After Smith opened
the door, Sims pushed her down onto a couch and began asking her where
her gun was. Sims apparently knew that Smith was employed as a security
guard, and she was carrying a handgun in a holster on her right hip. She
withdrew the gun from her holster as if she was going to give it to Sims, but
she shot him instead. Smith and Sims then exchanged several shots, each
hitting the other. Sims eventually fled from the apartment, screaming.
Smith was transported to a hospital. Before undergoing surgery, she
told police that she knew and had recognized her attacker from the way he
talked and that his name was Donny, but she could not remember his last
name. Smith later positively identified Sims as her attacker. Smith’s
surgery required the removal of part of her intestine, and she spent three
weeks recovering from her wounds.
Sims, meanwhile, sought treatment for his gunshot wounds at a
different hospital. When police asked him how he had sustained his
wounds, Sims claimed he had been shot by two Hispanic men. Police
managed to recover DNA from blood stains and a cap left in Smith’s
apartment, and the DNA matched Sims’s. In March 2009, Sims wrote
Smith a letter in which he asked her to forgive him for shooting her.
The State charged Sims with Class A felony attempted robbery,
Class A felony burglary, Class B felony criminal confinement, Class B
felony aggravated battery, and Class C felony battery. A jury trial was
conducted on January 11-13, 2010. Sims testified that he had agreed to be
2
Smith’s boyfriend in exchange for $500, but he decided he did not want to
be her boyfriend, which led to a confrontation in Smith’s apartment. Sims
essentially claimed he shot Smith in self-defense after she shot him first.
Sims was found guilty of all charges except the criminal confinement
charge. The trial court subsequently entered judgment of conviction only
for Class A felony attempted robbery and sentenced Sims to an executed
term of forty-five years.
Sims v. State, 937 N.E.2d 436 at *1, No. 45A03-1003-CR-140 (Ind. Ct. App. Nov. 12,
2010) (footnote omitted). Sims appealed and raised two issues before this court: (1)
whether the prosecutor committed misconduct during closing argument by focusing on
Sims’s prior felony conviction, and (2) whether the trial court abused its discretion in
sentencing Sims. Id. Rejecting those claims, this court affirmed Sims’s convictions and
sentence. Id.In November 2011, Sims filed his pro se petition for post-conviction relief,
alleging ineffective assistance of trial counsel. An evidentiary hearing was held on
August 23, 2013. On March 20, 2014, the post-conviction court denied Sims’s petition.
This appeal followed.
Discussion and Decision
I. Standard of Review
A petitioner seeking post-conviction relief bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
“A petitioner who is denied post-conviction relief appeals from a negative judgment,
which may be reversed only if the evidence as a whole leads unerringly and unmistakably
to a decision opposite that reached by the post-conviction court.” Collins v. State, 14
3
N.E.3d 80, 83 (Ind. Ct. App. 2014) (citation and quotation marks omitted). We defer to
the post-conviction court’s factual findings, unless they are clearly erroneous. Id.The Sixth Amendment’s “right to counsel is the right to the effective assistance of
counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a claim of ineffective
assistance of counsel, a convicted defendant must show (1) counsel’s performance was
deficient such that it fell below an objective standard of reasonableness based on
prevailing professional norms and (2) the defendant was prejudiced by counsel’s
deficient performance. Id. at 687. When considering whether counsel’s performance
was deficient, there exists a “strong presumption” that counsel’s performance was
reasonable. Id. at 689. A defendant is prejudiced if “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
The two prongs of the Strickland test—performance and prejudice—are
independent inquiries, and both prongs need not be addressed if the defendant makes an
insufficient showing as to one of them. Id. at 697. For instance, “[i]f it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed” without consideration of whether counsel’s performance was
deficient. Id.
II. Assistance of Trial Counsel
A. Failure to Investigate
4
First, Sims argues that his trial counsel provided ineffective assistance by failing
to conduct an adequate investigation of his case and to present additional witnesses at
trial.1 “[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at
691. The Supreme Court has noted that “[t]he reasonableness of counsel’s actions may
be determined or substantially influenced by the defendant’s own statements or actions . .
. [and] inquiry into counsel’s conversations with the defendant may be critical to a proper
assessment of counsel’s investigation decisions . . . .” Id.
In its findings of fact, the post-conviction court found that “Sims did not advise
counsel that there were any other witnesses to interview. Hence, counsel conducted no
other interviews.” Appellant’s Appendix at 25. Furthermore, as discussed in more detail
below, Sims claimed to have shot the victim in self-defense and that no one else was
present at the time of the incident. We cannot say it was unreasonable for trial counsel to
neglect to track down and present witnesses who did not exist.
1
The State contends that Sims forfeited any argument that trial counsel was ineffective for failing to
conduct adequate pretrial investigation, because Sims did not plead the specifics of this argument in his petition for
post-conviction relief. The State cites Badelle v. State, which states the general rule that a failure to raise an alleged
error in a petition for post-conviction relief forfeits that issue for appeal. 754 N.E.2d 510, 528 (Ind. Ct. App. 2001),
trans. denied. However, the court in Badelle chose to address the petitioner’s argument despite the lack of
specificity in the post-conviction relief petition, recognizing that testimony relevant to the argument was presented
at the evidentiary hearing without objection and that this court prefers to address arguments on the merits where
possible. Id. Notwithstanding the State’s allegation of forfeiture in this case, we address Sims’s arguments
regarding pretrial investigation due to relevant evidence being presented at the evidentiary hearing, a relevant factual
finding made by the post-conviction court, the State’s apparent ability to address the merits of Sims’s argument in its
appellate brief, see Brief of Appellee at 11-13, and our desire to decide issues on the merits when possible.
5
Sims also argues that his counsel failed to discover certain facts regarding Sims’s
relationship with the victim and money the victim had loaned to Sims. He claims that a
jury armed with these facts would surely find the victim’s version of events “ridiculous.”
Appellant’s Brief at 7. What Sims does not acknowledge is that the jury was presented
with these facts through Sims’s testimony, and the jury nonetheless credited the victim’s
version of events. Furthermore, even if it could be said that trial counsel was deficient
for not presenting additional witnesses to corroborate the existence of a prior relationship
between Sims and the victim, there is no reasonable probability that such testimony
would bolster Sims’s self-defense claim and alter the result of his trial.
B. Failure to Prepare Sims for Trial and Present Self-Defense Theory
Next, Sims asserts that trial counsel failed to adequately prepare Sims’s trial
testimony. In a similar vein, he argues that counsel failed to develop Sims’s testimony
and present evidence of self-defense at trial.
Sims alleges that counsel did not advise him that evidence of his past convictions
could be presented by the State if Sims chose to testify. However, the post-conviction
court’s order pointed out that Sims neither questioned trial counsel on this point nor
testified himself at the evidentiary hearing. As noted above, it is the petitioner’s burden
to present evidence substantiating his claim of ineffective assistance of counsel. See Ind.
Post-Conviction Rule 1(5). Sims has failed in this respect by neglecting to present any
evidence supporting his allegation that counsel did not adequately prepare him to testify
at trial.
6
Sims also argues that trial counsel was deficient for failing to present evidence in
support of Sims’s self-defense claim. However, as noted above, the only witnesses to the
incident were Sims and the victim, and Sims did testify to a version of events in which
Smith shot first and Sims merely acted in self-defense. Moreover, as the State points out,
trial counsel argued in his closing argument that Sims acted in self-defense, and the trial
court provided the jury with a self-defense instruction. Sims has offered no evidence in
these post-conviction proceedings that would have bolstered his self-defense claim or
changed the outcome of his trial. Under these circumstances, we decline to find that trial
counsel provided ineffective assistance of counsel.
C. Failure to Suppress Evidence
Sims contends his trial counsel was deficient for failing to have certain evidence
excluded from trial. Specifically, Sims argues that a letter he wrote to the victim after his
arrest and statements made to police at the hospital should have been excluded. To
prevail on a claim of ineffective assistance of counsel based on a failure to file a motion
or lodge an objection on a defendant’s behalf, the defendant must demonstrate that such
action would have been successful. See Moore v. State, 872 N.E.2d 617, 621 (Ind. Ct.
App. 2007), trans. denied.
1. Sims’s Letter to Victim
After his arrest, Sims wrote a letter to his victim apologizing for shooting her and
confessing that “[t]imes where [sic] hard for me and I knew you had a gun, which is no
excuse, but that was my motive.” State’s Exhibit 88. Sims argues his trial counsel was
ineffective for failing to have this letter excluded from evidence. However, Sims does
7
not present us with any legal basis for excluding the letter. In fact, it seems quite clear
that the letter was relevant and admissible as “not hearsay” under Indiana Evidence Rule
801(d)(2)(A) (statement made by opposing party). Therefore, trial counsel did not
perform deficiently by neglecting to object to the letter.
2. Sims’s Statements to Police
Sims also argues his trial counsel should have suppressed statements that Sims
made to a police officer without the provision of a Miranda warning. In the landmark
Miranda v. Arizona decision, the United States Supreme Court held “the prosecution may
not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” 384 U.S. 436, 444 (1966).
Those procedural safeguards have come to be known as “Miranda warnings.”2 See, e.g.,
Salinas v. Texas, 133 S.Ct. 2174, 2177 (2013); Kubsch v. State, 784 N.E.2d 905, 914
(Ind. 2003). Miranda warnings are required “where there has been such a restriction on a
person’s freedom as to render him ‘in custody.’” Stansbury v. California, 511 U.S. 318,
322 (1994) (citation omitted). Statements elicited in noncompliance with Miranda are
subject to suppression. Id.“In determining whether an individual was in custody, a court must examine all of
the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply
whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree
2
Miranda warnings given to a person subject to a custodial interrogation include, inter alia, an advisement
“that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that
he has a right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444.
8
associated with a formal arrest.’” Id. (quoting California v. Beheler, 463 U.S. 1121, 1125
(1983) (per curiam)) (brackets in original). In this case, Sims made statements to an
officer at the hospital where Sims had gone after being shot. According to the officer’s
trial testimony, he was made aware that a gunshot victim—Sims—was at the hospital,
and he found Sims at the hospital for the purpose of obtaining his identity and learning
how Sims sustained his injuries. The officer approached Sims, who was lying on a
gurney, and asked for his name and an explanation for what happened. At that point,
Sims identified himself and told the officer that he had been shot by two Hispanic men
who attempted to rob him. The post-conviction court concluded that these facts did not
amount to a custodial interrogation, and we agree. Because the circumstances of Sims’s
statement to police do not constitute a custodial interrogation, a motion to suppress
Sims’s statements would have been unsuccessful. Therefore, trial counsel did not
perform deficiently by failing to file a motion to suppress.
D. Failure to Object to Prosecutor’s Closing Argument
Finally, Sims argues he received ineffective assistance because his counsel failed
to object to statements made by the prosecutor in closing argument when the prosecutor
referred to Sims’s criminal history. This claim of prosecutorial misconduct is the same
argument made by Sims on direct appeal. See Sims, 937 N.E.2d 436 at *1-3. “If an issue
was raised on direct appeal, but decided adversely to the petitioner, it is res judicata.”
Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). “[W]here an issue, although
differently designated, was previously considered and determined upon a criminal
defendant’s direct appeal, the State may defend against defendant’s post-conviction relief
9
petition on grounds of prior adjudication or res judicata.” Id. (citation omitted)
(emphasis in original). Because the issue of prosecutorial misconduct was addressed on
direct appeal, it is not available to Sims in his post-conviction proceedings.
Conclusion
Concluding Sims did not receive ineffective assistance of counsel and that the
post-conviction court’s denial of Sims’s petition was not erroneous, we affirm.
Affirmed.
BAILEY, J., and BROWN, J., concur.
10