MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 12 2017, 10:15 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Christopher M. Macy Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher M. Macy, April 12, 2017 Appellant-Petitioner, Court of Appeals Case No. 49A05-1601-PC-100 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt M. Eisgruber, Appellee-Respondent Judge The Honorable Steven J. Rubick, Magistrate Trial Court Cause No. 49G01-0804-PC-71221
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 1 of 9 [1] Christopher Macy, pro se, appeals the judgment of the post-conviction court,
which denied his petition for post-conviction relief (PCR). He argues that he
received the ineffective assistance of trial and appellate counsel, and that the
PCR court erred by refusing to issue a subpoena. Finding that Macy did not
receive the ineffective assistance of counsel and no other error, we affirm.
Facts [2] Macy worked as a maintenance worker in the Keystone Towers apartments.
On March 26, 2008, he found that his tools were missing. He thought that
Darrick Mitchell had stolen them, and he began asking residents where he
could find Mitchell. He later found him; in front of at least three witnesses,
Macy repeatedly hit Mitchell on the head with a flashlight. Witnesses
recounted that Mitchell slumped over, started bleeding profusely, and made
gurgling noises. Although the police arrived within minutes, Mitchell could not
be saved, and he died from his wounds.
[3] On February 3, 2009, Macy was found guilty of voluntary manslaughter by
means of a deadly weapon, a class A felony. The trial court sentenced him to
forty-five years. Macy appealed, arguing that the trial court erred by admitting
several autopsy photographs into evidence, but we affirmed his conviction in a
memorandum decision. Macy v. State, No. 49A04-0903-CR-144, 2009 WL
3817903, at *1 (Ind. Ct. App. Nov. 16, 2009).
[4] Macy filed a petition for PCR on July 22, 2010, which he subsequently
amended. He argued that he had received the ineffective assistance of trial and
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 2 of 9 appellate counsel. His central claim was that his trial counsel should have
pursued a different trial strategy: he conceded that he hit Mitchell repeatedly
on the head with a flashlight, but thought that, in the intervening moments
between the end of his attack and the arrival of the police, someone else may
have snuck in the room and murdered Mitchell.
[5] The PCR court enabled Macy to subpoena several witnesses, including his trial
counsel and the deputy prosecutor involved in his case. He also received
answers to interrogatories served on his trial and appellate counsel. The PCR
court, however, declined to subpoena the trial court judge and the forensic
pathologist who testified at the trial, reasoning that neither would be able to
provide relevant testimony regarding Macy’s PCR arguments. On November
9, 2015, the PCR court issued its ruling, finding that Macy had not met his
burden to show that he had received the ineffective assistance of counsel.
Following a motion to correct error, which was denied, Macy now appeals.
Discussion and Decision [6] Macy has three arguments on appeal. First, he argues that the PCR court erred
by declining to subpoena the forensic pathologist; he claims that the
pathologist’s trial testimony opened a door to argue that a second weapon and
assailant were involved, and that this was relevant to his ineffective assistance
of counsel argument. Second, he argues that his trial counsel should have
pursued his preferred strategy at trial and that appellate counsel picked a weak
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 3 of 9 argument on appeal. Finally, he argues that the trial court improperly
sentenced him, and that the PCR court improperly upheld his sentence.
[7] The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006).
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 unless the evidence as a whole unerringly and
unmistakably leads to a conclusion opposite that reached by the post-conviction
court. Id.
I. Witness Subpoena [8] Pro se petitioners are entitled to request the issuance of subpoenas accompanied
by an affidavit stating the reason for calling the witness and the expected
testimony. Indiana Post-Conviction Rule 1(9)(b). That rule requires the PCR
court to order subpoenas to be issued “[i]f the court finds the witness’ testimony
would be relevant and probative,” but to refuse it otherwise. Id. The decision
to grant or deny a request for issuance of a subpoena is within the PCR court’s
discretion and will only be reversed if the decision is against the logic and effect
of the facts and circumstances. Collins v. State, 14 N.E.3d 80, 84 (Ind. Ct. App.
2014).
[9] We find that the PCR court was entirely correct to deny Macy’s request to
subpoena the forensic pathologist. Macy is required to “identify what
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 4 of 9 additional information would have been discovered and how he was prejudiced
by the absence of this information.” Williams v. State, 724 N.E.2d 1070, 1076
(Ind. 2000). His hypothesis that trial counsel would have elicited additional
information regarding the number of head wounds or the directions of the
strikes, and that this information would have convinced the jury that an as-yet
undiscovered third party snuck into the crime scene and murdered Mitchell, is,
at best, sheer fantasy. The PCR court made no error in this regard.
II. Ineffectiveness of Counsel [10] Our Supreme Court has summarized the standard applied to claims of
ineffective assistance of counsel as follows:
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); accord Williams v. Taylor, 529 U.S. 362, 390-91 (2000). First, the defendant must show that counsel’s performance was deficient. Strickland, 466 U.S. at 687. This requires a showing that counsel’s representation fell below an objective standard of reasonableness, id.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 12 2017, 10:15 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Christopher M. Macy Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher M. Macy, April 12, 2017 Appellant-Petitioner, Court of Appeals Case No. 49A05-1601-PC-100 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt M. Eisgruber, Appellee-Respondent Judge The Honorable Steven J. Rubick, Magistrate Trial Court Cause No. 49G01-0804-PC-71221
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 1 of 9 [1] Christopher Macy, pro se, appeals the judgment of the post-conviction court,
which denied his petition for post-conviction relief (PCR). He argues that he
received the ineffective assistance of trial and appellate counsel, and that the
PCR court erred by refusing to issue a subpoena. Finding that Macy did not
receive the ineffective assistance of counsel and no other error, we affirm.
Facts [2] Macy worked as a maintenance worker in the Keystone Towers apartments.
On March 26, 2008, he found that his tools were missing. He thought that
Darrick Mitchell had stolen them, and he began asking residents where he
could find Mitchell. He later found him; in front of at least three witnesses,
Macy repeatedly hit Mitchell on the head with a flashlight. Witnesses
recounted that Mitchell slumped over, started bleeding profusely, and made
gurgling noises. Although the police arrived within minutes, Mitchell could not
be saved, and he died from his wounds.
[3] On February 3, 2009, Macy was found guilty of voluntary manslaughter by
means of a deadly weapon, a class A felony. The trial court sentenced him to
forty-five years. Macy appealed, arguing that the trial court erred by admitting
several autopsy photographs into evidence, but we affirmed his conviction in a
memorandum decision. Macy v. State, No. 49A04-0903-CR-144, 2009 WL
3817903, at *1 (Ind. Ct. App. Nov. 16, 2009).
[4] Macy filed a petition for PCR on July 22, 2010, which he subsequently
amended. He argued that he had received the ineffective assistance of trial and
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 2 of 9 appellate counsel. His central claim was that his trial counsel should have
pursued a different trial strategy: he conceded that he hit Mitchell repeatedly
on the head with a flashlight, but thought that, in the intervening moments
between the end of his attack and the arrival of the police, someone else may
have snuck in the room and murdered Mitchell.
[5] The PCR court enabled Macy to subpoena several witnesses, including his trial
counsel and the deputy prosecutor involved in his case. He also received
answers to interrogatories served on his trial and appellate counsel. The PCR
court, however, declined to subpoena the trial court judge and the forensic
pathologist who testified at the trial, reasoning that neither would be able to
provide relevant testimony regarding Macy’s PCR arguments. On November
9, 2015, the PCR court issued its ruling, finding that Macy had not met his
burden to show that he had received the ineffective assistance of counsel.
Following a motion to correct error, which was denied, Macy now appeals.
Discussion and Decision [6] Macy has three arguments on appeal. First, he argues that the PCR court erred
by declining to subpoena the forensic pathologist; he claims that the
pathologist’s trial testimony opened a door to argue that a second weapon and
assailant were involved, and that this was relevant to his ineffective assistance
of counsel argument. Second, he argues that his trial counsel should have
pursued his preferred strategy at trial and that appellate counsel picked a weak
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 3 of 9 argument on appeal. Finally, he argues that the trial court improperly
sentenced him, and that the PCR court improperly upheld his sentence.
[7] The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006).
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 unless the evidence as a whole unerringly and
unmistakably leads to a conclusion opposite that reached by the post-conviction
court. Id.
I. Witness Subpoena [8] Pro se petitioners are entitled to request the issuance of subpoenas accompanied
by an affidavit stating the reason for calling the witness and the expected
testimony. Indiana Post-Conviction Rule 1(9)(b). That rule requires the PCR
court to order subpoenas to be issued “[i]f the court finds the witness’ testimony
would be relevant and probative,” but to refuse it otherwise. Id. The decision
to grant or deny a request for issuance of a subpoena is within the PCR court’s
discretion and will only be reversed if the decision is against the logic and effect
of the facts and circumstances. Collins v. State, 14 N.E.3d 80, 84 (Ind. Ct. App.
2014).
[9] We find that the PCR court was entirely correct to deny Macy’s request to
subpoena the forensic pathologist. Macy is required to “identify what
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 4 of 9 additional information would have been discovered and how he was prejudiced
by the absence of this information.” Williams v. State, 724 N.E.2d 1070, 1076
(Ind. 2000). His hypothesis that trial counsel would have elicited additional
information regarding the number of head wounds or the directions of the
strikes, and that this information would have convinced the jury that an as-yet
undiscovered third party snuck into the crime scene and murdered Mitchell, is,
at best, sheer fantasy. The PCR court made no error in this regard.
II. Ineffectiveness of Counsel [10] Our Supreme Court has summarized the standard applied to claims of
ineffective assistance of counsel as follows:
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); accord Williams v. Taylor, 529 U.S. 362, 390-91 (2000). First, the defendant must show that counsel’s performance was deficient. Strickland, 466 U.S. at 687. This requires a showing that counsel’s representation fell below an objective standard of reasonableness, id. at 688, 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, id. at 687. Second, the defendant must show that the deficient performance prejudiced the defense. Id. 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. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. Id. at Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 5 of 9 689. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690. 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. Id. at 689. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Bieghler v. State, 690 N.E.2d 188, 199 (Ind. 1997); Davis v. State, 598 N.E.2d 1041, 1051 (Ind. 1992); Ingram v. State, 508 N.E.2d 805, 808 (Ind. 1987).
Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001).
[11] Macy’s trial counsel testified at the PCR hearing regarding her trial strategy.
She noted that there was overwhelming evidence that Macy killed Mitchell.
She reasoned that Macy’s best strategy would be to defeat the murder charge by
convincing the jury that he acted in the heat of passion. In fact, Macy’s trial
counsel’s strategy worked: instead of being convicted of murder, he was
convicted of voluntary manslaughter.
[12] Macy posits that he merely battered Mitchell, and that someone else—“an
individual by the name of ‘Hitman’ who walked around with a stick”—sneaked
into the crime scene and murdered Mitchell. Appellant’s Br. p. 28. By arguing
that his trial counsel should have convinced the jury that, despite a complete
lack of evidence, a third party sneaked onto the scene and committed the crime,
Macy is demanding the impossible. Macy’s trial counsel more than met the
standard of performance required of attorneys; as such, Macy cannot meet his
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 6 of 9 burden of proving the first prong of the Strickland test, and his ineffective
assistance of trial counsel argument must fail.
[13] Macy also argues that his appellate counsel was ineffective because appellate
counsel declined to raise “at least eight (8) issues that could have been presented
on appeal,” which Macy sent to appellate counsel in a letter. Id. at 34.
[14] We give great deference to appellate counsel’s decisions regarding which
arguments to raise on appeal, which is “one of the most important strategic
decisions of appellate counsel.” Hampton v. State, 961 N.E.2d 480, 491 (Ind.
2012) (citing Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997)). Appellate
counsel’s performance, as to the selection and presentation of issues, will thus
be presumed adequate unless found unquestionably unreasonable considering
the information available in the trial record or otherwise known to the appellate
counsel. Id. at 491-92. Just as with trial counsel, Macy must show prejudice: a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014).
[15] Among the possible arguments Macy contends appellate counsel should have
raised are the following: that trial counsel was ineffective (we have already
found that she was not); that the trial court should have instructed the jury on
reckless homicide (there was no evidence, and Macy has never argued, that he
acted recklessly as opposed to knowingly); that the trial court began evaluating
final instructions after the defense’s final witness but before the defense had
formally closed its case (if this was error, we cannot see how Macy would have
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 7 of 9 been prejudiced by it); and that Indiana’s sentencing scheme is generally
unconstitutional (Macy relies on several cases decided before Indiana amended
its sentencing scheme in 2005).
[16] Searching through Macy’s proposed appellate arguments, we cannot say that
appellate counsel’s choice was unquestionably unreasonable. None of Macy’s
proposed appellate arguments have merit, and he has not convinced us that
appellate counsel would have achieved a different result by arguing them.
Macy’s claim of ineffective assistance of appellate counsel also fails.
III. Trial Court’s Sentencing Statement [17] At the sentencing hearing, the trial court rejected Macy’s argument that
Mitchell’s alleged provocation should be counted as a mitigating factor. He
argues that a finding by the jury that he committed voluntary manslaughter
necessarily indicates that he was provoked, and that therefore the trial court
erred.1
[18] Macy is incorrect. Voluntary manslaughter requires proof that a person
knowingly or intentionally killed another human being “while acting under
sudden heat.” Ind. Code § 35-42-1-3(a) (2008). The trial court simply noted
that, in the encounter, Macy walked straight into the room and began beating
1 We note that this argument was available at the direct appeal stage and is not properly before us at the PCR stage. Regardless, we will address it.
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 8 of 9 Mitchell without Mitchell saying or doing anything; therefore, it declined to
accept Macy’s proposed mitigating factor.
[19] In sum, the PCR court properly denied to subpoena a witness, when Macy
failed to specify what relevant information she would provide; Macy did not
receive the ineffective assistance of trial or appellate counsel; and the trial court
did not err in sentencing him.
[20] The judgment of the post-conviction court is affirmed.
Mathias, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017 Page 9 of 9