Bronco Morgan v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 7, 2016
• Docket: 20A05-1508-PC-1159
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 07 2016, 10:13 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Scott King Gregory F. Zoeller Russell W. Brown, Jr. Attorney General of Indiana Scott King Group Merrillville, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bronco Morgan, April 7, 2016 Appellant-Defendant, Court of Appeals Case No. 20A05-1508-PC-1159 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Terry Shewmaker, Appellee-Plaintiff Judge Trial Court Cause No. 20C01-0903-FA-3 20C01-1203-PC-27

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016 Page 1 of 11 Case Summary [1] Appellant-Petitioner Bronco Morgan (“Morgan”) challenged his conviction of

Attempted Murder in a petition for post-conviction relief and also in a

subsequent motion, on remand from this Court, to set aside the post-conviction

order. He was denied relief and appeals those orders. We affirm.

Issues [2] Morgan presents two issues for review:

I. Whether he was denied the effective assistance of trial counsel; and

II. Whether he established a claim of newly-discovered evidence. 1

Facts and Procedural History [3] The facts were recited by a panel of this Court on direct appeal as follows:

1 Morgan articulates a third issue (incorporating his presumption that he established the credibility of a witness recantation), that is, whether his conviction was fundamentally unfair, having been obtained by perjured testimony. The post-conviction rules contemplate a narrow remedy for subsequent collateral challenges to convictions. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). The purpose of a petition for post-conviction relief is to provide petitioners the opportunity to raise issues not known or available at the time of the original trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). Moreover, collateral challenges to convictions must be based upon grounds enumerated in the post-conviction rules. Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006), trans. denied; see also Indiana Post-Conviction Rule 1(1). To the extent that Morgan attempted to raise a free-standing issue of trial error in the admission of evidence, this is not a proper issue to be addressed through post-conviction relief apart from his attempt to establish a claim of newly-discovered evidence. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002).

Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016 Page 2 of 11 During the early morning hours of June 17, 2008, Morgan and his half-brother, Craig Smith (“Smith”) were at a party at an apartment building in Elkhart. At some point, Morgan and Smith became involved in a physical altercation with a person called “Rat Boy.” (Tr. 400.) Smith held “Rat Boy” against a wall so that Morgan could strike him. Afterwards, “Rat Boy” left but announced that he “would be back.” (Tr. 401.) “Rat Boy” went into one of the nearby apartments and placed a call to his cousin, Varnell Dixon (“Dixon”).

Dixon arrived shortly thereafter and confronted Smith. Dixon shoved Smith and Smith struck Dixon in the face. Dixon “pulled his hand back behind him” and “started shooting.” (Tr. 339.) Smith was struck and killed by one of the bullets. Dixon fled.

Morgan rushed into an apartment which had a view of the street in front of the apartment building. Holding a gun, Morgan looked out the front window and said to Kevin Bush (“Bush”), “he must have went out the back.” (Tr. 484.) Morgan ran to the fire escape and emptied his gun. Dixon collapsed on the ground next to his vehicle.

Morgan returned to Bush’s apartment, handed Bush the gun, and directed him to dispose of it. Morgan told one of the party guests that he “got that m----- f-----“ because “he killed his brother.” (Tr. 405.)

Police officers responded to a 9-1-1 call reporting Smith’s death. During the initial investigation, Officer Jason Ray stepped onto the fire escape and heard someone gasping for air. His attention was drawn to a nearby parking lot. Officer Ray shined his flashlight in the area and found Dixon lying on the pavement, bleeding from a gunshot wound to his head.

Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016 Page 3 of 11 Morgan was charged with Attempted Murder, and a jury found him guilty as charged. He was sentenced to fifty years imprisonment, with one year suspended to probation.

Morgan v. State, No. 20A04-1008-CR-577, slip op. at 2-3 (Ind. Ct. App. Mar. 25,

2011). On appeal, Morgan raised two issues, challenging the admission of

evidence and his sentence. His conviction and sentence were affirmed. See id.

[4] On March 13, 2012, Morgan filed a pro-se petition for post-conviction relief.

The petition was later amended with the assistance of counsel, to allege that

Morgan had been denied the effective assistance of trial counsel and also had

newly-discovered evidence. On October 21, 2013, following a hearing at which

a recanting trial witness testified, the petition was denied. Morgan appealed.

[5] During the pendency of the appeal, Morgan filed a petition for remand. He

asserted that he had obtained information that the recanting witness in his case

had been involved in a separate murder investigation, she had recanted

allegations, and the murder charge had been dismissed. Morgan was granted a

dismissal without prejudice and a remand to have the opportunity to develop an

evidentiary record in regard to the murder prosecution. On May 22, 2015,

Morgan filed a motion for relief from judgment, attacking the denial of post-

conviction relief. The post-conviction court conducted an evidentiary hearing

and, on July 17, 2015, again denied Morgan post-conviction relief. This appeal

ensued.

Discussion and Decision Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016 Page 4 of 11 Standard of Review [6] The petitioner in a post-conviction proceeding bears the burden of establishing

the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing

from the denial of post-conviction relief, the petitioner stands in the position of

one appealing from a negative judgment. Id. On review, we will not reverse

the judgment of the post-conviction court unless the evidence as a whole

unerringly and unmistakably leads to a conclusion opposite that reached by the

post-conviction court. Id. A post-conviction court’s findings and judgment will

be reversed only upon a showing of clear error, that which leaves us with a

definite and firm conviction that a mistake has been made. Id. In this review,

findings of fact are accepted unless they are clearly erroneous and no deference

is accorded to conclusions of law. Id. The post-conviction court is the sole

judge of the weight of the evidence and the credibility of witnesses. Id.

Effectiveness of Trial Counsel [7] Morgan contends he was denied the effective assistance of trial counsel because

counsel did not interview Michael Casey (“Casey”) or present Casey’s

testimony at trial. Casey, a resident of the building where Dixon was shot,

informally provided security there. He was one of fifty-eight potential witnesses

listed by the State, and he had given a police statement.

[8] Effectiveness of counsel is a mixed question of law and fact. Strickland v.

Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016 Page 5 of 11 of ineffective assistance under the two-part test announced in Strickland. Id. To

prevail on an ineffective assistance of counsel claim, a defendant must

demonstrate both deficient performance and resulting prejudice. Dobbins v.

State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

Deficient performance is that which falls below an objective standard of

reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates 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.”

Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

1996). The two prongs of the Strickland test are separate and independent

inquiries. Strickland, 466 U.S. at 697. 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.” Id.

[9] We “strongly presume” that counsel provided adequate assistance and

exercised reasonable professional judgment in all significant decisions. McCary

v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

considerable discretion in the choice of strategy and tactics. Timberlake v. State,

753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the

facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring

reasonable professional judgment even if the strategy in hindsight did not serve

Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016 Page 6 of 11 the defendant’s interests. Id. In sum, 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 the objective standard of

reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).

[10] “As a general proposition, the decision whether to call a particular witness is

encompassed within the attorney’s trial strategy.” Osborne v. State, 481 N.E.2d

376, 380 (Ind. 1985). Absent a clear showing of injury and prejudice, an

appellate court will not declare counsel ineffective for failure to call a witness.

Id.

[11] Morgan claims that his trial counsel failed to identify, interview, and subpoena

Casey, an “eyewitness to the crime.” (Appellant’s Br. at 6.) However, in his

post-conviction testimony, Casey made no claim that he had seen the shooting

of Dixon. Rather, he testified that he had seen a person other than Morgan run

downstairs with a gun tucked up his sleeve; that he had not seen Morgan armed

with a gun; and that he had heard no more shots after Morgan exited the fire

escape. According to Casey, he had given police a statement denying that he

had seen Morgan with a gun. This was contradicted by the post-conviction

testimony of Elkhart Police Captain Cris Seymore, who testified that Casey did

not even mention Morgan’s name in his police interview. As such, it is not

clear that Casey had made any pretrial statement tending toward exculpation of

Morgan. At most, he had claimed not to have seen Morgan with a gun.

Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016 Page 7 of 11 [12] On the other hand, defense counsel presented the trial testimony of a claimed

eyewitness, Maurice Starkey (“Starkey”). Starkey testified that he was, at the

time of Dixon’s shooting, a roommate of Bush. Starkey testified that he had a

“good view” and saw Bush fire “maybe six shots” at Dixon, but he had not

initially realized that Dixon had been struck. (Trial Tr. at 430, 643.) According

to Starkey, he took his hysterical girlfriend back to Chicago and while there he

first heard that there had actually been a fatal shooting and a non-fatal shooting.

Not wanting to be labeled a “snitch,” he did not contact police. (Trial Tr. at

647.)

[13] In closing argument, defense counsel then invited the jury to conclude that

Bush, not Morgan, shot Dixon. That version of events was rejected by the jury.

Trial counsel’s efforts and strategy, although they did not ultimately achieve the

result desired by Morgan, were not so unreasonable as to constitute ineffective

assistance of counsel. See Badelle v. State, 754 N.E.2d 510, 539 (Ind. Ct. App.

2001) (deciding in relevant part that, when trial counsel’s efforts were “more

than adequate” to support a chosen defense, counsel’s decision not to seek out

additional witnesses was a judgment call within the wide range of reasonable

assistance), trans. denied.

[14] Morgan did not make a “clear showing of injury and prejudice,” such that trial

counsel may be considered ineffective for failure to call Casey as a witness.

Osborne, 481 N.E.2d at 380.

Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016 Page 8 of 11 Newly Discovered Evidence [15] Indiana Post-Conviction Rule 1(1)(a)(4) provides that one who has been

convicted of a crime may seek post-conviction relief to assert a claim “that there

exists evidence of material facts, not previously presented and heard, that

requires vacation of the conviction or sentence in the interest of justice.”

[16] A new trial on the basis of newly-discovered evidence is to be granted only

when nine requirements are demonstrated: (1) the evidence has been

discovered since the trial; (2) it is material and relevant; (3) it is not cumulative;

(4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due

diligence was used to discover it in time for trial; (7) the evidence is worthy of

credit; (8) it can be produced upon a retrial of the case; and (9) it will probably

produce a different result at retrial. Bunch v. State, 964 N.E.2d 274, 283 (Ind.

Ct. App. 2012), trans. denied.

[17] At Morgan’s trial, Dorothy Rogers (“Rogers”) testified for the State. She

testified that she had gone to the apartment building where the shootings

occurred in order to purchase drugs. Rogers further testified that Morgan “was

shooting,” from his position on the ground while others on the fire escape were

“running trying to get away from the bullets.” (Trial Tr. at 404, 409.)

According to Rogers, Morgan later told her that he had shot “that m----- f----

[who had] killed his brother.” (Trial Tr. at 405.) Rogers testified that she had

then made contact with police and indicated “that she had something she felt

like she needed to say.” (Trial Tr. at 406.)

Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016 Page 9 of 11 [18] By the time of the post-conviction hearing, Rogers asserted that she had an

improved memory and desired to recant her trial testimony. When she was an

active user of crack cocaine, Rogers had felt intimidated or harassed by the

police. Now sober, she claimed that her trial testimony against Morgan had

been coerced and was false. In her post-conviction testimony, Rogers explicitly

denied that she saw Morgan shooting. Thus, Rogers provided testimony in

impeachment of her trial testimony.

[19] In her recantation testimony, Rogers’ responses were selective. She claimed to

recall details of the shooting but at the same time claimed to be unable to recall

the substance of either her trial testimony or statement to police. She did not

recall approaching the police. She could not recall whether her statements and

trial testimony were consistent. The post-conviction court found that Rogers’

recantation was not worthy of credit.

[20] In general, whether a post-conviction witness’s testimony is worthy of credit is a

factual determination to be made by the trial judge who has the opportunity to

see and hear the witness testify. Bunch, 964 N.E.2d at 292. It is not within the

province of the appellate court to replace a trial judge’s assessment of credibility

with its own. Id. We thus accept the determination of the post-conviction court

that Rogers’ post-conviction testimony is not worthy of credit. Morgan did not

establish the nine prerequisites for a new trial on the basis of newly-discovered

evidence.

Conclusion Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016 Page 10 of 11 [21] Morgan was not denied the effective assistance of trial counsel. He did not

show entitlement to a new trial on a claim of newly-discovered evidence.

Accordingly, the post-conviction court properly denied the petition for post-

conviction relief.

[22] Affirmed.

Bradford, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016 Page 11 of 11