Hosey L. Whitmore v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 13 2020, 10:29 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Hosey L. Whitmore Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Hosey L. Whitmore, February 13, 2020
Appellant-Petitioner, Court of Appeals Case No.
17A-PC-3039
v. Appeal from the
St. Joseph Superior Court
State of Indiana, The Honorable
Appellee-Respondent Elizabeth C. Hurley, Judge
Trial Court Cause No.
71D08-1506-PC-26
Vaidik, Judge.
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Case Summary
[1] Hosey Whitmore appeals the denial of his petition for post-conviction relief.
We affirm.
Facts and Procedural History
[2] The underlying facts of this case, taken from this Court’s opinion on direct
appeal, are as follows:
On the night of July 9, 2008, Whitmore, along with his friends,
Andrew Harvey and Shannon Dockery, was gambling at an
illegal gambling house run by Johnny Duke. After losing some
money gambling, Whitmore left, and he and his friends went to
the home of another friend, Jeffrey Winston. While there,
Whitmore suggested they all return to Duke’s and rob him.
Early the next morning, the four men left in Whitmore’s car,
heading to Duke’s, but the car ran out of gas on the way and the
men had to continue on foot. Winston and Harvey were armed
with a .38 caliber and a .45 caliber handgun respectively.
Whitmore and Dockery arrived at Duke’s house first, entered,
and began playing dice with Duke. Winston and Harvey arrived
a short time later. Harvey then drew his gun and pointed it at
Duke. Whitmore and Dockery walked out of the house as Duke
attempted to wrestle Harvey’s gun away from him. At some
point during the scuffle, or shortly thereafter, Winston shot Duke
twice, once in the head and once in the stomach. Harvey and
Winston then stole money from Duke and another person in the
house and fled. Duke died several days later from his injuries.
While fleeing the house, Winston discarded his gun in some
bushes. Later that day, Whitmore returned to retrieve the gun
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and hid it in a wall inside his home. At some point after the
shooting, Whitmore flagged down a police officer and reported
Duke had been shot, referring to Duke as his friend. Whitmore
was questioned by police on three separate occasions. Initially,
Whitmore lied to police about his involvement in the crime and
provided false identities for his co-conspirators.
Whitmore v. State, No. 71A03-0911-CR-507 (Ind. Ct. App. Mar. 25, 2010), trans.
denied.
[3] The State charged Whitmore and the three other men with felony murder and
Class A felony robbery. Winston and Harvey pled guilty to robbery, and the
State dismissed the felony-murder charges against them in exchange for their
testimony against Whitmore and Dockery. At Whitmore’s jury trial, the State
presented evidence that Dockery’s, Harvey’s, and Winston’s handprints were
found on Whitmore’s car. Trial Tr. pp. 722-27. Following trial, Whitmore was
found guilty of both charges. The trial court entered judgment of conviction for
felony murder only and sentenced Whitmore to fifty-five years.
[4] Whitmore was represented by counsel on direct appeal. Whitmore argued that
the evidence was insufficient to support his felony-murder conviction under an
accomplice-liability theory, the trial court abused its discretion in sentencing
him, and his sentence was inappropriate. We found that the evidence was
sufficient to support a finding that Whitmore knowingly and intentionally aided
and induced the robbery and therefore affirmed his felony-murder conviction.
See Whitmore, No. 71A03-0911-CR-507 (“[T]he evidence here indicates the
robbery was Whitmore’s idea. In addition, Whitmore attempted to drive the
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group to Duke’s to commit the robbery. After the robbery and shooting,
Whitmore recovered and hid the murder weapon.”). Although we found that
the trial court did not abuse its discretion in sentencing Whitmore, we found
that his fifty-five-year sentence was inappropriate because it was five years
longer than the maximum sentence that Winston—the shooter—faced.
Accordingly, we remanded the case for the trial court to suspend five years of
Whitmore’s sentence to probation.
[5] In 2015, Whitmore, pro se, filed a petition for post-conviction relief, which he
later amended. Whitmore’s claims included ineffective assistance of trial and
appellate counsel. In order to support his claims, Whitmore asked the post-
conviction court to issue subpoenas to ten potential witnesses. The court
denied eight of the subpoenas and issued two—one for Whitmore’s trial counsel
and one for his appellate counsel. See Appellant’s P-C App. p. 92.
[6] The evidentiary hearing on Whitmore’s petition was held in February 2017. As
the hearing was getting ready to start, Whitmore told the post-conviction court
that when he was transferred from the DOC to the St. Joseph County Jail three
days earlier, the jail confiscated his legal documents, which he needed for the
hearing. P-C Tr. p. 3. The State agreed that Whitmore needed his documents.
The court took a break so that Whitmore’s documents could be brought over to
him from the jail. Once Whitmore had his documents, the hearing started.
Whitmore did not object. After the hearing, the post-conviction court entered
an order denying relief.
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[7] Whitmore, pro se, now appeals.
Discussion and Decision
[8] Whitmore appeals the denial of his petition for post-conviction relief. A
defendant who files a petition for post-conviction relief has the burden of
establishing the grounds for relief by a preponderance of the evidence. Hollowell
v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies
relief, and the petitioner appeals, the petitioner must show that the evidence
leads unerringly and unmistakably to a conclusion opposite that reached by
the post-conviction court. Id. at 269.
I. Fairness of Post-Conviction Hearing
[9] Whitmore first contends that he was denied “a full and fair evidentiary hearing”
because his legal documents were confiscated upon his arrival at the jail.
Appellant’s Br. p. 11. He also notes that when his documents were returned to
him, they were “out of context” with the paper clips and staples removed. Id. at
12. While Whitmore did not have his documents at the beginning of the
hearing, the post-conviction court took a break so that his documents could be
brought over to him from the jail. Once Whitmore had his documents, the
hearing started. Notably, Whitmore did not complain about the status of his
documents, object on grounds that this solution was somehow inadequate, or
request a continuance based on his inability to prepare for the hearing.
Accordingly, because Whitmore did not raise this issue in the post-conviction
court, it is waived. See Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004)
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(“[A]s a general rule, a party may not present an argument or issue on appeal
unless the party raised that argument or issue before the trial court.”).
II. Ineffective Assistance of Trial Counsel
[10] Whitmore next contends that his trial counsel was ineffective. When
evaluating a defendant’s ineffective-assistance-of-counsel claim, we apply the
well-established, two-part test from Strickland v. Washington, 466 U.S. 668(1984). Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019). The defendant
must prove that (1) counsel rendered deficient performance, meaning counsel’s
representation fell below an objective standard of reasonableness as gauged by
prevailing professional norms and (2) counsel’s deficient performance
prejudiced the defendant, i.e., but for counsel’s errors, there is a reasonable
probability that the result of the proceeding would have been different. Id.A. Failure to File Motion to Suppress
[11] Whitmore argues that trial counsel should have filed a motion to suppress the
evidence collected from the search of his car (handprints) on the basis that his
“car had been processed before any warrant was issued.” Appellant’s Br. p. 25.
Whitmore claims that the search warrant was obtained on July 17, 2008, but
that the police searched his car before interviewing him on July 14 and 15,
2008. The post-conviction court rejected this claim, finding that there was no
basis for trial counsel to have filed a motion to suppress because the evidence
showed that Whitmore’s “car was impounded, then searched after the officers
obtained the warrant.” Appellee’s P-C App. Vol. II p. 38.
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[12] Whitmore challenges this finding on appeal. Specifically, he points out that the
police asked him about Kristen Shelor during his July 14 and 15 interviews but
that there is no way the police would have known about Shelor unless they
searched his car before interviewing him (Shelor’s handprint was also found on
Whitmore’s car). Not only does Whitmore provide no basis upon which the
post-conviction court could have concluded that the police had no other reason
to ask him about Shelor, but the record shows that the fingerprint report wasn’t
completed until September 30, 2008—well after Whitmore’s July 14 and 15
interviews. See Trial Tr. p. 721. The post-conviction court properly denied
relief on this claim.
B. Failure to Object to Opening Statement
[13] Whitmore argues that trial counsel was ineffective for failing to object to the
prosecutor’s comment during opening statement that Whitmore knew the
victim, Duke, because they were “neighbors.” See Trial Tr. p. 179. Whitmore
claims that this statement constituted prosecutorial misconduct because the
prosecutor knew that Whitmore and Duke weren’t neighbors. See Appellant’s
Br. p. 21.
[14] One purpose of an opening statement is to inform the jury of the anticipated
evidence. See Splunge v. State, 526 N.E.2d 977, 981 (Ind. 1988), reh’g denied.
The record shows that the prosecutor had a good-faith basis to call Whitmore
and Duke “neighbors” during opening statement. Notably, Whitmore doesn’t
dispute that he knew Duke. See Trial Ex. 31; P-C Ex. F. Moreover, Winston
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testified at trial that the house where Whitmore lived “[o]n and off” was “right
over the tracks” from the gambling house. Trial Tr. pp. 319-21. As the post-
conviction court found, “[t]his appears to be a factual dispute, not an instance
of misconduct.” Appellee’s P-C App. Vol. II p. 37. The post-conviction court
properly denied relief on this claim.
C. Failure to Introduce Video
[15] Whitmore argues that trial counsel was ineffective for failing to introduce a
video of him speaking to South Bend Police Department Officer Rick McGee at
the homicide office after the shooting. Whitmore claims that the video would
have shown that Whitmore was at the homicide office until 8:15 a.m., which
would have contradicted Winston’s trial testimony that Whitmore was
somewhere else around this time.
[16] Winston testified at trial that after the shooting, he, Whitmore, and Dockery
ran to Whitmore’s house and that he tossed his gun in some bushes. According
to Winston, the three men then parted ways, with Whitmore going to look for
Harvey and he and Dockery going to his house. Winston testified that later
that morning, “probably like” at 7:30 a.m., Whitmore stopped by his house and
told him that he had “just left” the homicide office. Trial Tr. p. 338. Whitmore
told Winston that he had retrieved the discarded gun from the bushes and put it
inside a wall in his house. Whitmore also told Winston that when he walked
outside after putting the gun inside the wall, he saw the police and flagged them
down. Whitmore then told the police about the shooting at the gambling
house, at which point he was transported to the homicide office for questioning.
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[17] Whitmore asserts that had trial counsel introduced the video of him speaking
with Officer McGee at the homicide office after the shooting, it “would have
shown that Whitmore could not have aided Jeffery Winston in the disposal of
any weapons, because Whitmore was in police custody at the time Jeffery
Winston claim[s] this took place.” Appellant’s Br. p. 18. Whitmore, however,
did not introduce this video into evidence at the post-conviction hearing.
Without the video, we can’t evaluate Whitmore’s claim. Whitmore has failed
to carry his burden of proof on this issue.
D. Failure to Call Witnesses at Trial
[18] Whitmore argues that trial counsel was ineffective for failing to call South Bend
Police Department Officers McGee, Jayson McNicholas, and Angela Kline as
defense witnesses at trial. He claims that had the officers testified, they would
have contradicted Winston’s trial testimony that (1) Whitmore ran to his house
after the shooting, retrieved the discarded gun from the bushes, and put the gun
inside a wall in his house and (2) Whitmore was at Winston’s house around
7:30 a.m.
[19] We first note that there is nothing in the record suggesting that these officers
would have testified as Whitmore claims. Whitmore first claims that Officer
McGee would have testified that Whitmore was at the homicide office until
8:15 a.m., which means that he could not have been at Winston’s house around
7:30 a.m. like Winston testified. In support, Whitmore cites Officer McGee’s
“Narrative Supplemental.” See P-C Ex. F. Although this report states that
Officer McGee interviewed Whitmore shortly after 4 a.m., it does not state
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when Whitmore left the homicide office, much less that he was there until
8:15 a.m.
[20] Whitmore next claims that Officer McNicholas would have testified that he
picked up Whitmore after the shooting and took him to the homicide office.
According to Whitmore, because he was picked up after the shooting, there was
no time for him to run back to his house and hide the gun like Winston
testified. In support, Whitmore cites Officer McNicholas’s “Case Report.” See
P-C Ex. H. Although this report states that Officer McNicholas was dispatched
to the shooting, saw Whitmore running in the area, and picked him up, it does
not give any times. As such, Officer McNicholas’s statement that he picked up
Whitmore after the shooting doesn’t mean that Whitmore didn’t have time to
run back to his nearby house first.
[21] Finally, Whitmore claims that Officer Kline would have testified that she and
her K-9 searched Whitmore’s house and didn’t find a gun, which means that he
didn’t put the gun inside a wall in his house like Winston testified. As support,
Winston cites Officer Kline’s “Case Report.” See P-C Ex. O. This report,
however, only states that Officer Kline and her K-9 searched the house in order
to “look[] for other potential suspects.” In other words, Officer Kline did not
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search the house for a gun.1 Whitmore has failed to prove that trial counsel was
deficient for not calling these witnesses at trial.
[22] In any event, even if the officers would have testified like Whitmore claims,
Whitmore has failed to establish a reasonable probability that the result of his
trial would have been different. Whitmore was convicted of felony-murder as
an accomplice. Even if Whitmore did not dispose of the gun, as we explained
on direct appeal, there was other evidence establishing that Whitmore
knowingly and intentionally aided and induced the robbery. Winston and
Harvey testified at trial that the robbery was Whitmore’s idea, Whitmore drove
the group to the gambling house, Dockery’s, Harvey’s, and Winston’s
handprints were found on Whitmore’s car, and Whitmore told changing stories
to the police. The post-conviction court properly denied relief on this claim. 2
E. Failure to Request a Mistrial
[23] Whitmore argues that trial counsel was ineffective for failing to request a
mistrial based on the judge’s alleged bias.3 A mistrial is appropriate only when
1
Whitmore also claims that trial counsel should have called Earl Richmond as a defense witness at trial.
Richmond was at the gambling house when Duke got shot. Whitmore asserts that Richmond would have
testified that Whitmore tried to stop the robbery. Whitmore, however, cites no evidence to support this
claim. In fact, the only evidence in the record shows that Richmond identified Whitmore “as one of the
individuals who had been gambling with them earlier that evening, and who had returned and robbed
[Richmond] and Duke.” P-C Ex. O.
2
For these same reasons, Whitmore’s claim that the post-conviction court erred in failing to issue subpoenas
to these witnesses is without merit.
3
Whitmore also raises the judge’s bias as a freestanding claim. See Appellant’s Br. pp. 36-39. But as the
State argues on appeal and the post-conviction court found below, freestanding claims are not available on
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the questioned conduct is so prejudicial and inflammatory that the defendant
was placed in a position of grave peril to which he should not have been
subjected. See Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. 2008). The gravity
of the peril is measured by the conduct’s probable persuasive effect on the jury.
Id.[24] The record shows that before voir dire started, the judge told the parties that she
and her husband had “guardianship of [the] son of the half brother” of Winston
and that she had known Winston for eight years. Trial Tr. p. 6.4 The judge
explained that she recused herself in Winston’s case; however, she didn’t
“anticipate that to be problem in this case” because she was not the finder of
fact. Id. The judge asked the parties if they had “any problem” or wanted to
make a record, and they said no. Id. at 6-7.
[25] After Winston testified at trial, the judge recessed for lunch. After returning
from lunch, the judge disclosed to the parties that she did something “really
stupid” during the break. Id. at 479. That is, “after the court was over” and
“while the jury was back in the jury room,” the judge went and got a
photograph of the boy she had guardianship of and showed it to Winston, at
post-conviction. See Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002) (“In post-conviction proceedings,
complaints that something went awry at trial are generally cognizable only when they show deprivation of
the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.”).
Accordingly, we address the judge’s bias under ineffective assistance of trial counsel only.
4
The record is not entirely clear about the relationship between the child the judge has guardianship of and
Winston. Whitmore claims that the judge has guardianship of “Winston’s son’s brother.” Appellant’s Reply
Br. p. 3. Our decision would be the same under either relationship.
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which point Winston started crying. Id. at 480. The judge told him that she
didn’t mean to make him cry. The judge told the parties that she didn’t think
what she did was grounds for a mistrial, because “[n]o one was there when I
did it”; however, she said it was very “impulsive” and “the wrong thing to do.”
Id. at 480. The judge asked the parties if they wanted to make a record, and
trial counsel responded that he wasn’t “going to make any further record” than
the one she already had made. Id. The jury was brought back in, and the trial
resumed.
[26] Whitmore’s claim that trial counsel should have requested a mistrial is based on
a misunderstanding of the facts. In his brief, Whitmore states that the judge
showed Winston the photo “while he was on the stand” and that Winston
started “crying in court.” Appellant’s Br. p. 23. As described above, this is not
what happened. Rather, the incident happened while the jury was in the jury
room. Although we agree with the judge’s characterization of her conduct,
because it occurred outside the presence of the jury, we conclude that
Whitmore was not placed in a position of grave peril.5 This is especially so
given trial counsel’s testimony at the post-conviction hearing that his decision
not to request a mistrial was most likely strategic as he remembered thinking
that the trial was going well. See P-C Tr. p. 47.
5
In an attempt to show that the judge exhibited bias against him in front of the jury, Whitmore cites some of
the judge’s evidentiary rulings. However, he makes no argument that these rulings were incorrect. In any
event, an adverse ruling alone is not sufficient to show that a judge was biased or prejudiced. See Flowers v.
State, 738 N.E.2d 1051, 1060 n.4 (Ind. 2000), reh’g denied.
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F. Failure to Consult with Whitmore on Plea Offer
[27] Whitmore argues that trial counsel was ineffective for failing to communicate to
him a second plea offer from the State. See P-C Ex. N. Trial counsel has the
duty to communicate formal offers from the State, and trial counsel’s failure to
do so is deficient performance. See Woods v. State, 48 N.E.3d 374, 381 (Ind. Ct.
App. 2015).
[28] At the post-conviction hearing, Whitmore asked trial counsel why he didn’t tell
him about the second plea offer from the State. Trial counsel testified that he
“believe[d]” he discussed the second offer with Whitmore. P-C Tr. p. 53.
Although trial counsel couldn’t remember the specifics of Whitmore’s case, he
said he would have discussed “any offers” with Whitmore “as part of [his]
normal practice.” Id. at 54. The post-conviction court chose to believe trial
counsel, concluding that Whitmore failed to prove that trial counsel did not
communicate the second offer to him. Appellee’s P-C App. Vol. II pp. 38-39;
see Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004) (“The post-conviction court
is the sole judge of the weight of the evidence and the credibility of witnesses.”).
We affirm the post-conviction court on this claim.
III. Ineffective Assistance of Appellate Counsel
[29] Finally, Whitmore contends that his appellate counsel was ineffective.
Although we generally consider claims of ineffective assistance of appellate
counsel as analogous to claims of trial counsel ineffectiveness, there are
significant and important differences between the roles of appellate counsel and
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trial counsel. Ben-Yisrayl v. State, 738 N.E.2d 253, 260 (Ind. 2000), reh’g denied.
To prevail on a claim of ineffective assistance of appellate counsel, a defendant
must show from the information available in the trial record or otherwise
known to appellate counsel that appellate counsel failed to present a significant
and obvious issue and that this failure cannot be explained by any reasonable
strategy. Id. at 261.
A. Failure to Challenge Admission of Letter
[30] Whitmore argues that appellate counsel was ineffective for not arguing on
direct appeal that the trial court erred in admitting a letter that Whitmore
allegedly sent to Harvey from jail. Whitmore claims that this letter should not
have been admitted without an exemplar of his writing for comparison. The
post-conviction court found that appellate counsel was not ineffective for not
raising this issue on direct appeal because trial counsel did not object to the
admission of Whitmore’s letter at trial:
At trial, [trial counsel] agreed to the Court’s handling of the
letters. When the parties were discussing the possibility of
putting into evidence the letter that [Whitmore] had written to
the Court for use as a handwriting exemplar to compare to the
other, unsigned, letter purportedly written by [Whitmore], [trial
counsel] stated that it wasn’t necessary because he was not going
to be arguing that [Whitmore] did not write the letter. According
to [trial counsel], he was going to offer an explanation to the jury
for the letter.
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Appellee’s P-C App. Vol. II p. 41 (citing Trial Tr. pp. 539-48). When the State
later offered the letter into evidence, trial counsel said, “No objection.” Trial
Tr. p. 559.
[31] On appeal, Whitmore does not acknowledge that trial counsel did not object
when the letter was offered into evidence. Failure to object when evidence is
introduced at trial waives the issue for appeal. See Delarosa v. State, 938 N.E.2d
690, 694 (Ind. 2010). Accordingly, the post-conviction court properly
concluded that Whitmore failed to prove that appellate counsel was ineffective
for not raising this waived issue on direct appeal.
B. Failure to Raise Ineffective Assistance of Trial Counsel
[32] Whitmore argues that appellate counsel was ineffective for failing to raise a
claim of ineffective assistance of trial counsel on direct appeal. As our Supreme
Court has explained, “a postconviction hearing is normally the preferred forum
to adjudicate an ineffectiveness claim.” Woods v. State, 701 N.E.2d 1208, 1219
(Ind. 1998), reh’g denied. This is so because presenting such claims often
requires the development of facts not present in the trial record. Rogers v. State,
897 N.E.2d 955, 964-65 (Ind. Ct. App. 2008), reh’g denied, trans. denied. If a
defendant raises ineffective assistance of trial counsel on direct appeal, the
doctrine of res judicata bars him from raising additional claims of ineffective
assistance of trial counsel on post-conviction. Timberlake v. State, 753 N.E.2d
591, 602 (Ind. 2001), reh’g denied.
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[33] Whitmore claims that he asked appellate counsel to argue on direct appeal that
trial counsel was ineffective for not objecting when the State played a redacted
version of his statements to police because the parties had agreed that the State
would play the full version. Appellate counsel testified at the post-conviction
hearing that he did not raise this issue on direct appeal because it required the
development of facts not in the record (i.e., the alleged video that was not
played) and therefore should be pursued on post-conviction. P-C Tr. pp. 24-25.
In light of this testimony, the post-conviction court concluded that appellate
counsel was not ineffective for failing to raise this undeveloped issue on direct
appeal. Appellee’s P-C App. Vol. II p. 42. The post-conviction court properly
denied relief on this claim.6
C. Conflict of Interest
[34] Whitmore argues that appellate counsel was ineffective because he had a
conflict of interest based upon his representation of Winston in another case.
To establish a conflict of interest amounting to a Sixth Amendment violation,
the defendant must establish that counsel had an actual conflict of interest and
that the conflict adversely affected counsel’s performance. Coleman v. State, 694
N.E.2d 269, 273 (Ind. 1998); Shepherd v. State, 924 N.E.2d 1274, 1287 (Ind. Ct.
App. 2010), trans. denied.
6
Notably, Whitmore himself doesn’t separately argue that trial counsel was ineffective for failing to object.
He only argues that appellate counsel should have raised the issue.
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[35] Even assuming that appellate counsel had an actual conflict of interest, the post-
conviction court found that Whitmore failed to establish that “he was in any
way prejudiced” by appellate counsel’s representation of Winston in the other
case. Appellee’s P-C App. Vol. II p. 42. On appeal, Whitmore maintains that
he was, in fact, prejudiced because appellate counsel “withdrew from [his]
direct appeal and stated he could not file the petition for transfer,” thereby
leaving him “in the middle of his direct appeal without counsel.” Appellant’s
Br. p. 44. The implication is that appellate counsel withdrew because of the
conflict of interest. But as appellate counsel testified at the post-conviction
hearing, he did not withdraw from Whitmore’s direct appeal because of any
conflict of interest; rather, he withdrew when the direct appeal was over
because the public defender’s office did not authorize him to seek transfer. P-C
Tr. p. 29. The post-conviction court properly denied relief on this claim.
[36] Affirmed.
Riley, J., and Bradford, C.J., concur.
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