Autrey v. State

700 N.E.2d 1140, 1998 Ind. LEXIS 504, 1998 WL 753481
Indiana Supreme Court·Decided October 28, 1998·No. 71S00-9612-CR-761·Published·Cited by 82 cases

Opinions

SELBY, Justice.

John Autrey, Jr. was convicted of murder and sentenced to a term of fifty-five (55) years.1 The only issue raised on appeal is whether defendant’s right to effective assistance of counsel under the Sixth Amendment of the United States Constitution was violated when trial counsel failed to tender instructions on the lesser included offenses of murder. We conclude that this failure was an intentional and permissible tactical decision by trial counsel and does not constitute ineffective assistance of counsel. We affirm the trial court.

FACTUAL BACKGROUND

The events at issue in this case took place on September 9,1995. The defendant was at the house of Josephine Flores, drinking beer and smoking “weed” with Reynaldo Torres, Angel Torres, Richard Mesaros, Jose Lugo, David Frohwerk, and Shannon Lyttle. Reynaldo and Frohwerk confronted Matthew Blankenship and his younger brother Brian who had just made a phone call from the corner phone booth. A dispute arose regarding Matthew’s cigarettes, and Reynaldo punched Matthew several times. Matthew and Brian returned to their father’s residence, while Frohwerk and Reynaldo returned to the Flores’ residence.

About ten minutes later, Matthew and his father James approached the Flores’ residence. James was holding a baseball bat and yelling. Some witnesses heard James yell racial slurs and others did not. Lyttle approached the Blankenships, followed by Frohwerk and defendant. A scuffle ensued in which Lyttle obtained the bat, Frohwerk fought with Matthew, and someone threw a bottle and brick at James. Eventually James was knocked to the ground, at which time he was kicked, beaten with a bat, and may have been struck with the cement brick. The witnesses provide widely disparate accounts of this scuffle.

Flores, Mesaros, Lugo, Ridel, and defendant testified that defendant threw the bottle. The neighbor Gonzales testified that someone other than defendant threw the bottle. Angel testified that the bottle hit James [1141] square in the face. Frohwerk saw the bottle skim James only. Matthew, Mesaros, Ridel, Lugo, and defendant testified that the bottle missed James. Gonzales testified that defendant hit James directly in the face with the-bottle.

Flores saw defendant throw the brick. Matthew saw the brick hit his father in the chest. Gonzales saw the brick dropped on top of James while James was on the ground, but did not see it hit James, because his view was obstructed by the car. Lugo saw the brick skim the face of James. Flores, Mesa-ros, Lugo, Frohwerk, and defendant saw Lyttle strike James with the bat while James was lying on the ground. Frohwerk, Ridel, and defendant testified that while James was on the ground, defendant was fighting with Matthew.

After the scuffle, Frohwerk, Lyttle, Mesa-ros, and defendant left the scene. Defendant took the bat, left on a bicycle, and threw the bat in a nearby creek. Defendant’s clothes were blood-stained. Tests later established that this blood matched the blood of James, but was not the blood of defendant, Lyttle, or Frohwerk. Defendant testified that the blood came from the bat, which he at no time used to hit James. Commander Trennery of the special crimes unit which had investigated these events stated that the blood on defendant’s clothing was a swipe, which he described as blood transferred from a cylindrical object onto defendant’s clothing.

The autopsy determined that James died from blunt trauma wounds to the head. The autopsy and Dr. Hoover’s autopsy report and testimony established that either a bottle, cement block, bat, or kicking could have caused each wound. For each wound, the doctor gave an opinion as to the type of object most likely to have caused the injury. Any of the head injuries above could have caused James’s death.

DISCUSSION

Defendant argues that trial counsel’s failure to tender any lesser included offense instructions amounted to ineffective assistance of counsel. To prevail on such a claim, a defendant must show both that counsel’s performance was deficient and that this deficient performance prejudiced defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). When we analyze deficiency of performance, we start with the presumption that counsel’s performance was effective. Potter v. State, 684 N.E.2d 1127, 1131 (Ind.1997). The defendant may rebut this presumption only by strong and convincing evidence. Id. Effectiveness is measured using “an objective standard of reasonableness under prevailing professional norms.” Smith v. State, 689 N.E.2d 1238, 1243 (Ind.1997).

After careful consideration of the record, we find that counsel acted effectively. The record contains numerous indications that trial counsel made the decision not to tender lesser included offenses as part of an “all or nothing” trial strategy. It is well-established that trial strategy is not subject to attack through an ineffective assistance of counsel claim, unless the strategy is so deficient or unreasonable as to fall outside of the objective standard of reasonableness. Garrett v. State, 602 N.E.2d 139, 142 (Ind.1992). This is so even when “such choices may be subject to criticism or the choice ultimately prove detrimental to the defendant.” Id.

Further, this Court has .previously held that a tactical decision not to tender a lesser included offense does not constitute ineffective assistance of counsel, even where the lesser included offense is inherently included in the greater offense. Page v. State, 615 N.E.2d 894, 895 (Ind.1993). In Page, we concluded: “It is not sound policy for this Court to second-guess an attorney through the distortions of hindsight.” Id. at 896. There is no reason to stray from this policy.

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Autrey v. State, 700 N.E.2d 1140, 1998 Ind. LEXIS 504, 1998 WL 753481 (Ind. 1998).

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