Corey L. Walton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 21, 2018
• Docket: 45A03-1709-PC-2111
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 21 2018, 9:01 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Jeffrey R. Wright George P. Sherman Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Corey L. Walton, March 21, 2018 Appellant-Petitioner, Court of Appeals Case No. 45A03-1709-PC-2111 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Natalie Bokota, Appellee-Respondent Magistrate The Honorable Diane Ross Boswell, Judge Trial Court Cause No. 45G03-1606-PC-0004

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018 Page 1 of 11 Case Summary [1] Corey Walton appeals the denial of his petition for post-conviction relief

challenging his convictions for attempted murder and attempted robbery.

Finding no error, we affirm.

Facts and Procedural History [2] One afternoon in July 2012, Henry Walker was at a park in Hammond when a

man he didn’t know approached him, pointed a gun at him, and demanded that

he hand over everything he had. After a short struggle, the man shot Walker

twice in the midsection and then fled. In a photographic lineup, Walker

identified Walton as the shooter. The State charged Walton with attempted

murder, attempted robbery, and battery.

[3] While Walton was in jail awaiting trial, two of his friends went to the jail and

spoke with him using the jail’s videoconferencing system. Walton said, “I need

you to do something for me” regarding “this f*** nig** who on my sh**.”

State’s Trial Ex. 10 (file 17198501, starting at 12:04). He then held a document

with Walker’s name and address up to the camera. He continued:

If this nig** show on a G, Cous’, I go to trial, if I get found guilty, it’s over with my nig**. They tryin’ to hit me with like thirty, forty years. Cuz you know, I got attempt. Know what I’m sayin’? So, uh, I wanted you to go, know what I’m sayin’, go see what’s good and sh** man. I’m just gonna give you this little address and sh**. Go holler, know what I’m sayin’? . . . I mean G, cuz if these nig**s show it’s over with, Cous’.

Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018 Page 2 of 11 Id. Walton stated the street address and described its general location before

adding:

If the nig** don’t show [inaudible] they gonna drop my case cuz they don’t got, they never caught me with sh**, no burner,[1] nothing. Know what I’m sayin’? Those nig**s don’t got sh** on me. They just got this, they just got nig**s telling on me. [Inaudible] and some f*** a** nig**, know what I’m sayin’? Hey, you blow in his ear.

Id. 2

[4] At trial, Walker was the State’s main witness, and when asked if the shooter

was in the courtroom, he identified Walton. In addition, the State moved to

have the video of the jail visit admitted into evidence. Walton’s attorney

objected on the ground that the video is “so absolutely inflammatory and that

it’s misunderstood, can be, and will likely be misunderstood. He says go holler.

He’s not saying go kill him. He’s saying go holler at this guy.” Trial Tr. p. 61.

She added, “And my client’s position is basically that why is this guy saying

this, that I did this when it wasn’t me.” Id. The trial court overruled the

objection and allowed the video to be played for the jury, finding it to be

“relevant and probative.” Id. at 62.

1 “Burner” is slang for gun. See Trial Tr. p. 178. 2 This is our transcription of the jail video. The State included a similar transcription in its brief, and Walton does not dispute its accuracy.

Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018 Page 3 of 11 [5] After all evidence was presented, the trial court gave each side ten minutes for

closing argument. The prosecutor argued, among other things, that the video of

the jail visit corroborated Walker’s identification of Walton:

[Y]ou have further information to corroborate that Mr. Walton is the perpetrator of this crime. You have a video that was played for you, and the video says certain things. You heard it and you saw Mr. Walton in that video. You saw Mr. Walton saying that it was the -- and I’m not going to use the term that he used, but it was the black guy. You heard Mr. Walton say that -- and hold up a piece of paper saying that he lived at an address on Nebraska Street. You heard the victim testify that he lived at an address on Nebraska Street. You heard Mr. Walton testify -- or not testify but say in the video that they never found a burner on him.

You heard the defendant say in that video that they never found a burner, and you learned what the term burner meant on the streets. It means a gun. You heard the defendant say that he lives near that park. Well, you know that this crime occurred in a park. You have everything that you need to reach a verdict of guilty on each and every count in this case, and that’s what I’m asking you to do. Thank you.

Id. at 220-21.

[6] In her argument, Walton’s attorney focused on the absence of various State

witnesses, whether Walker was credible, and whether the photographic lineup

was reliable. Regarding the jail video, she argued that the case “doesn’t boil

down” to “you saw a nasty video so it must have been him.” Id. at 225. She

added that the issue is not whether the jury “like[d] the defendant” but whether

Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018 Page 4 of 11 the State had proven its case. Id. at 227. However, her time ran before she

addressed the video any further, resulting in the following exchange:

COURT: Time, [counsel].

DEFENSE COUNSEL: I’m sorry?

COURT: Time. Ten minutes up.

DEFENSE COUNSEL: I mean, up-up?

COURT: You can summary [sic].

DEFENSE COUNSEL: One quick? Thank you. The video, my client’s an idiot. My client’s an idiot. I’m not standing here telling you he’s not a fool --

COURT: [Counsel], that’s not a summary.

COURT: That’s not the -- that’s not summing it up.

DEFENSE COUNSEL: Oh.

COURT: You’re over time. Go ahead. Go ahead.

DEFENSE COUNSEL: Ladies and gentlemen, the bottom line, and I apologize, the burden has not been met and you should therefore find my client not guilty of all charges. Thank you.

Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018 Page 5 of 11 COURT: Thank you, [counsel].

Id. at 228.

[7] The jury found Walton guilty as charged. The trial court merged the battery

count into the attempted-murder count and sentenced Walton to concurrent

terms of thirty-five years for attempted murder and attempted robbery. Walton

appealed his convictions, and we affirmed. Walton v. State, No. 45A03-1409-

CR-320 (Ind. Ct. App. Apr. 24, 2015), trans. denied.

[8] In June 2016, Walton filed a petition for post-conviction relief. He initially

included a number of claims but eventually withdrew all of them except one:

that his trial attorney provided ineffective assistance by calling him “an idiot

and a fool,” tying this statement to “a video clip which the State had argued

corroborated the victim’s identification testimony,” and “offering no contrary

interpretation of the video clip th[a]n that advanced by the State of Indiana.”

Appellant’s App. Vol. II p. 76. At the evidentiary hearing on the petition,

Walton’s trial attorney testified as follows about her strategy with regard to the

jail video:

My strategy for dealing with that, it was going to be a difficult task -- I remember that -- given what appeared on the video. I was basically going to say my client didn’t have the sense to realize how what he was doing and saying on that video would appear to an outside person. I was just going to go with the strategy that what he was attempting to do was being misunderstood, that he had other intentions by what he was doing and saying in that video.

Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018 Page 6 of 11 * * * *

He may be a dummy for doing this, but he meant no harm was what my strategy was going to be, in terms of how I was going to speak to the jury.

PCR Tr. pp. 21-23. When asked specifically why she referred to Walton as an

“idiot” and a “fool,” she explained, “I have to be honest, I have prevailed in the

past by not trying to mislead a jury, by being frank with the jury. And my

client, for doing what he did, how he did it, and presenting that impression, was

idiotic and foolish.” Id. at 37.

[9] After the hearing, the post-conviction court denied Walton’s petition,

concluding that calling Walton an idiot and a fool was part of a “reasonable

trial strategy”—to “confront” the jail video, to be “frank” with the jury, and “to

gain the juror’s trust in her argument and to make the point that the defendant’s

video statements, while foolish, did not make him guilty of the underlying

charges.” Appellant’s App. Vol. II pp. 119-20. The court also concluded that,

even if the performance of Walton’s attorney in this respect could be considered

deficient, the evidence against Walton was “overwhelming,” so there is not a

reasonable probability that a better closing argument would have led to a

different result. Id. at 120.

[10] Walton now appeals.

Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018 Page 7 of 11 Discussion and Decision [11] A person 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.

[12] Walton contends that the post-conviction court should have granted him relief

on the basis that his trial attorney rendered ineffective assistance. When

evaluating such a claim, Indiana courts apply the two-part test set forth in

Strickland v. Washington, 466 U.S. 668 (1984): whether counsel performed

deficiently and whether that deficient performance prejudiced the defendant.

Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017). An attorney’s performance

is deficient if it falls below an objective standard of reasonableness—if the

attorney committed errors so serious that it cannot be said that the defendant

had “counsel” as guaranteed by the Sixth Amendment. Id. A defendant has

been prejudiced if there is a reasonable probability that the case would have

turned out differently but for counsel’s errors. Id.

[13] Regarding the deficient-performance prong, Walton argues that his trial

attorney botched what we will call the “my client is an idiot but that doesn’t

make him a criminal” strategy with regard to the jail video. Specifically,

Walton contends that his attorney executed part one of the strategy—calling

Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018 Page 8 of 11 him “an idiot” and “a fool” for saying the things he said on the video, but then

failed to execute part two—explaining why Walton’s statements, while

seemingly incriminating, do not make him guilty of the crimes charged.

Walton acknowledges the trial court’s role in cutting off the argument, but he

asserts that his attorney could have finished part two if she had done one or

more of the following: (1) moved more quickly throughout her entire closing

argument; (2) asked the court for more time to finish the argument; or (3)

continued with the argument after the court said “Go ahead. Go ahead.” The

State, on the other hand, argues that considering the defense argument as a

whole, “it would have been apparent to the jury that trial counsel was stating

that Walton was foolish for making the statements on the video but that those

statements did not establish that Walton was the person that shot Walker.”

Appellee’s Br. p. 10.

[14] While the manner in which Walton’s attorney ended her argument certainly

wasn’t ideal, we are hesitant to say that her handling of the jail video amounted

to deficient performance. Before things unraveled as time expired, Walton’s

attorney was able to convey to the jury the idea that the case “doesn’t boil

down” to the jail video, “nasty” though it was. She also reminded the jury that

the issue was whether the State had proven its case, not whether the jury

“like[d] the defendant.” It would have been nice if she had wrapped up the

argument at the end; that said, we’re inclined to agree with the State that her

ultimate message—“my client is an idiot but that doesn’t make him a

criminal”—was apparent to the jury.

Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018 Page 9 of 11 [15] In any event, Walton has failed to convince us that there is a reasonable

probability that a different closing argument would have led to a different result,

and that alone is enough for us to affirm the denial of post-conviction relief. See

Baer v. State, 942 N.E.2d 80, 91 (Ind. 2011) (“If we can easily dismiss an

ineffective assistance claim based upon the prejudice prong, we may do so

without addressing whether counsel’s performance was deficient.”), reh’g denied.

Walton does not deny that the video looks very bad for him. Nonetheless, he

insists that the verdict might have been different if his attorney had presented a

contrary “interpretation” of the video. Appellant’s Br. p. 27. He doesn’t tell us

what interpretation might have made a difference, but at trial, Walton’s

attorney said that Walton’s position “is basically that why is this guy saying

this, that I did this when it wasn’t me.” In other words, Walton apparently

believed that the video should have been interpreted as an attempt by him to get

his friends to pay a friendly visit to Walker to have a civilized conversation with

him about how he had the wrong guy—not to kill, hurt, threaten, or otherwise

intimidate him. Having reviewed the video, we believe it is highly unlikely that

the jury would have accepted such an explanation. While Walton never

specifically indicated that he wanted the visit to be hostile, the fact that he

referred to Walker as a “f*** nig**” and a “f*** a** nig**” and told his friends

to “blow in his ear” strongly suggests that Walton wasn’t contemplating a

pleasant encounter. Therefore, any attempt by Walton’s attorney to put a

positive spin on the video surely would have damaged—not bolstered—her

credibility with the jury, and the post-conviction court did not err in concluding

that counsel’s failure to do so prejudiced Walton. Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018 Page 10 of 11 [16] Walton relies heavily on Christian v. State, 712 N.E.2d 4 (Ind. Ct. App. 1999).

There, a defendant charged with rape testified that the sexual contact between

him and his accuser was consensual and that, in any event, there was no

penetration, which is an element of rape. During closing arguments, however,

defense counsel conceded that penetration had occurred and instead argued

only that it was consensual. We held that counsel’s concession on the

contested issue of penetration—which directly contradicted his client’s own

testimony—constituted ineffective assistance of counsel. Id. at 7.

[17] Walton asserts that his attorney made a concession that was “strikingly similar”

to the one made in Christian. Appellant’s Br. p. 24. We disagree. Unlike the

attorney in Christian, Walton’s trial attorney did not concede any element of a

charged crime. The only thing she conceded was that Walton was an “idiot”

and a “fool” for asking his friends, on a recorded video feed, to “holler” at

Walker and “blow in his ear” in an effort to keep him from testifying against

Walton. Since there is no dispute that this was an incredibly ill-advised thing

for Walton to do, counsel’s concession was nothing like the critical concession

made in Christian.

[18] Affirmed.

May, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018 Page 11 of 11