Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any 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:
STEPHEN T. OWENS GREGORY F. ZOELLER Public Defender of Indiana Attorney General of Indiana
LINDA G. NICHOLSON IAN MCLEAN
FILED Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana Oct 4 2012, 9:30 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
D.B., ) ) Appellant-Petitioner, ) ) vs. ) No. 20A05-1201-PC-18 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable Terry C. Shewmaker, Judge Cause No. 20C01-1003-PC-10
October 4, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issue
D.B. was convicted of murder, a felony, and sentenced to sixty years in prison
with five years suspended to probation. The post-conviction court denied his claim that
he received ineffective assistance of trial counsel. He raises one issue for our review,
which we restate as whether the post-conviction court erred in denying his petition for
post-conviction relief. Concluding the post-conviction court did nor err, we affirm.
Facts and Procedural History
On March 8, 2008, Elkhart police responded to a report of gunshots and found
Gerald Wenger dead with a single bullet wound. The State charged D.B. with murder, a
felony, and the juvenile court waived his charges to an adult felony court. A joint jury
trial was held for D.B. and codefendant Joshua Love. Among the evidence offered was
the testimony of jail house informer Mario Morris.
Morris testified that he spoke with D.B. and Love individually and on separate
occasions in prison. Morris recounted the details of the conversations for the jury,
explaining that each man separately confessed to his respective involvement in Wenger’s
murder, and that neither codefendant mentioned nor implicated the other in any way.
Although no objection was made during Morris’s testimony, D.B. moved for a mistrial
when Morris finished testifying, arguing that admitting Morris’s testimony was a
violation of D.B.’s constitutional rights under Bruton v. U.S. because he could not
compel Love to testify.1 Since Morris’s account of Love’s confession made no mention
of D.B., and vice versa, the trial court concluded that the defendants’ conversations did
not inculpate one another and thus denied the motion. D.B. was found guilty of murder, a
1 Bruton, 391 U.S. 123 (1968). Violation criteria will be explained in the discussion. 2 felony, and was sentenced to an aggregate term of sixty years in prison with five years
suspended to probation.
D.B. appealed his conviction on several issues, including a claim that the trial
court had abused its discretion in denying his motion for a mistrial on account of a Bruton
violation. This court found that no Bruton violation occurred and affirmed the trial court.
D.B. v. State, 916 N.E.2d 750, *3 (Ind. Ct. App. 2010)(Table), trans. denied.
D.B. thereafter filed a petition for post-conviction relief, claiming his trial counsel
was ineffective because he failed to file a motion to sever D.B.’s trial from that of his
codefendant. The post-conviction court concluded D.B. failed to establish his counsel
acted unreasonably, and it denied the petition. D.B. now appeals.
Discussion and Decision
I. Standard of Review
D.B. argues that the post-conviction court erred in denying his petition for post-
conviction relief. On post-conviction relief, the petitioner has the burden of establishing
his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule
1(5).
A petitioner who appeals the denial of PCR faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post-conviction court. The appellate court must accept the post-conviction court’s findings of fact and may reverse only if the findings are clearly erroneous. If a PCR petitioner was denied relief, he or she must show that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion than that reached by the post-conviction court.
Roberts v. State, 953 N.E.2d 559, 562 (Ind. Ct. App. 2011) (citations omitted), trans.
denied.
3 II. D.B’s Ineffective Assistance of Trial Counsel Claim
D.B. argues that he did not receive effective assistance of trial counsel based on
his counsel’s failure to move to sever D.B.’s trial from that of his codefendant.
In order to prevail on a claim of ineffective assistance of counsel, defendant must show that (i) defense counsel’s representation fell below an objective standard of reasonableness and (ii) there is a reasonable probability that the result of the proceeding would have been different but for defense counsel’s inadequate representation.
Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996) (citing Strickland v. Washington, 466
U.S. 668 (1984)).
D.B. argues that admission of Morris’s testimony of the two conversations was a
Bruton violation and that counsel, if acting reasonably, would have moved to sever the
trial from that of his codefendant. In Bruton, the Supreme Court found that “a defendant
is deprived of his Sixth Amendment right of confrontation when the facially
incriminating confession of a nontestifying codefendant is introduced at their joint
trial[.]” Richardson v. Marsh, 481 U.S. 200, 207 (1987) (citing Bruton, 391 U.S. at 135-
136). In our previous opinion on D.B.’s direct appeal, we recognized that, had a Bruton
violation occurred, trial counsel would have waived the right to appeal that issue by
failing to move to sever the trial from that of D.B.’s codefendant. Whether counsel’s
failure would have been unreasonable, however, is irrelevant as this court went on to
decide that no Bruton violation occurred.
D.B. tries to revisit the issue of whether there was a Bruton violation. “[R]es
judicata bars relitigation of a claim after a final judgment has been rendered when the
subsequent action involves the same claim between the same parties[.]” Hermitage Ins.
Co. v. Salts, 698 N.E.2d 856, 859 (Ind. Ct. App. 1998). “The doctrine of res judicata 4 prevents the repetitious litigation of that which is essentially the same dispute.” Ben-
Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000) (emphasis and citations omitted)(cert.
denied, 534 U.S. 1164 (2002)).
D.B. tries to circumvent res judicata by arguing that the issue of ineffective
assistance of counsel is separate from the issue of whether a Bruton violation occurred.
However, “[a] petitioner for post-conviction relief cannot escape the effect of claim
preclusion merely by using different language to phrase an issue and define an alleged
error.” Shepherd v.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any 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:
STEPHEN T. OWENS GREGORY F. ZOELLER Public Defender of Indiana Attorney General of Indiana
LINDA G. NICHOLSON IAN MCLEAN
FILED Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana Oct 4 2012, 9:30 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
D.B., ) ) Appellant-Petitioner, ) ) vs. ) No. 20A05-1201-PC-18 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable Terry C. Shewmaker, Judge Cause No. 20C01-1003-PC-10
October 4, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issue
D.B. was convicted of murder, a felony, and sentenced to sixty years in prison
with five years suspended to probation. The post-conviction court denied his claim that
he received ineffective assistance of trial counsel. He raises one issue for our review,
which we restate as whether the post-conviction court erred in denying his petition for
post-conviction relief. Concluding the post-conviction court did nor err, we affirm.
Facts and Procedural History
On March 8, 2008, Elkhart police responded to a report of gunshots and found
Gerald Wenger dead with a single bullet wound. The State charged D.B. with murder, a
felony, and the juvenile court waived his charges to an adult felony court. A joint jury
trial was held for D.B. and codefendant Joshua Love. Among the evidence offered was
the testimony of jail house informer Mario Morris.
Morris testified that he spoke with D.B. and Love individually and on separate
occasions in prison. Morris recounted the details of the conversations for the jury,
explaining that each man separately confessed to his respective involvement in Wenger’s
murder, and that neither codefendant mentioned nor implicated the other in any way.
Although no objection was made during Morris’s testimony, D.B. moved for a mistrial
when Morris finished testifying, arguing that admitting Morris’s testimony was a
violation of D.B.’s constitutional rights under Bruton v. U.S. because he could not
compel Love to testify.1 Since Morris’s account of Love’s confession made no mention
of D.B., and vice versa, the trial court concluded that the defendants’ conversations did
not inculpate one another and thus denied the motion. D.B. was found guilty of murder, a
1 Bruton, 391 U.S. 123 (1968). Violation criteria will be explained in the discussion. 2 felony, and was sentenced to an aggregate term of sixty years in prison with five years
suspended to probation.
D.B. appealed his conviction on several issues, including a claim that the trial
court had abused its discretion in denying his motion for a mistrial on account of a Bruton
violation. This court found that no Bruton violation occurred and affirmed the trial court.
D.B. v. State, 916 N.E.2d 750, *3 (Ind. Ct. App. 2010)(Table), trans. denied.
D.B. thereafter filed a petition for post-conviction relief, claiming his trial counsel
was ineffective because he failed to file a motion to sever D.B.’s trial from that of his
codefendant. The post-conviction court concluded D.B. failed to establish his counsel
acted unreasonably, and it denied the petition. D.B. now appeals.
Discussion and Decision
I. Standard of Review
D.B. argues that the post-conviction court erred in denying his petition for post-
conviction relief. On post-conviction relief, the petitioner has the burden of establishing
his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule
1(5).
A petitioner who appeals the denial of PCR faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post-conviction court. The appellate court must accept the post-conviction court’s findings of fact and may reverse only if the findings are clearly erroneous. If a PCR petitioner was denied relief, he or she must show that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion than that reached by the post-conviction court.
Roberts v. State, 953 N.E.2d 559, 562 (Ind. Ct. App. 2011) (citations omitted), trans.
denied.
3 II. D.B’s Ineffective Assistance of Trial Counsel Claim
D.B. argues that he did not receive effective assistance of trial counsel based on
his counsel’s failure to move to sever D.B.’s trial from that of his codefendant.
In order to prevail on a claim of ineffective assistance of counsel, defendant must show that (i) defense counsel’s representation fell below an objective standard of reasonableness and (ii) there is a reasonable probability that the result of the proceeding would have been different but for defense counsel’s inadequate representation.
Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996) (citing Strickland v. Washington, 466
U.S. 668 (1984)).
D.B. argues that admission of Morris’s testimony of the two conversations was a
Bruton violation and that counsel, if acting reasonably, would have moved to sever the
trial from that of his codefendant. In Bruton, the Supreme Court found that “a defendant
is deprived of his Sixth Amendment right of confrontation when the facially
incriminating confession of a nontestifying codefendant is introduced at their joint
trial[.]” Richardson v. Marsh, 481 U.S. 200, 207 (1987) (citing Bruton, 391 U.S. at 135-
136). In our previous opinion on D.B.’s direct appeal, we recognized that, had a Bruton
violation occurred, trial counsel would have waived the right to appeal that issue by
failing to move to sever the trial from that of D.B.’s codefendant. Whether counsel’s
failure would have been unreasonable, however, is irrelevant as this court went on to
decide that no Bruton violation occurred.
D.B. tries to revisit the issue of whether there was a Bruton violation. “[R]es
judicata bars relitigation of a claim after a final judgment has been rendered when the
subsequent action involves the same claim between the same parties[.]” Hermitage Ins.
Co. v. Salts, 698 N.E.2d 856, 859 (Ind. Ct. App. 1998). “The doctrine of res judicata 4 prevents the repetitious litigation of that which is essentially the same dispute.” Ben-
Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000) (emphasis and citations omitted)(cert.
denied, 534 U.S. 1164 (2002)).
D.B. tries to circumvent res judicata by arguing that the issue of ineffective
assistance of counsel is separate from the issue of whether a Bruton violation occurred.
However, “[a] petitioner for post-conviction relief cannot escape the effect of claim
preclusion merely by using different language to phrase an issue and define an alleged
error.” Shepherd v. State, 924 N.E.2d 1274, 1281 (Ind. Ct. App. 2010) (quoting Reed v.
State, 856 N.E.2d 1189, 1194 (Ind. 2006)), trans. denied. This is precisely what D.B. is
attempting to do, as the only error D.B. alleges counsel made was failing to avert a
Bruton violation.
D.B. also attempts to avoid res judicata by arguing that the Bruton issue was not
previously decided on the merits because this court did not address the holdings of Cruz
v. New York, 481 U.S. 186 (1987), and Lee v. Illinois, 476 U.S. 530 (1986). In Cruz, the
Supreme Court held:
where a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him.”
481 U.S. at 193 (reference omitted); see also Lee v. Illinois, 476 U.S. at 541 (stating “the
Court has spoken with one voice in declaring presumptively unreliable accomplices’
confessions that incriminate defendants.”). D.B. argues that Morris was an unreliable
informant and that his testimony lacked sufficient indicia of reliability under the Lee
standard. The Cruz and Lee analyses, however, only apply to a “nontestifying 5 codefendant’s confession incriminating the defendant.” Cruz 481 U.S. at 193 (emphasis
added). Neither Cruz nor Lee modify the Bruton violation requirement that the
codefendant’s pretrial statement be “facially incriminating” to the defendant.
Richardson, 481 U.S. at 207. As this court stated previously, “[e]ach codefendant
confessed to his respective involvement in the crime and provided essentially identical
details. Thus, each was implicated by his own statements to Morris alone, not by the
statements of the other codefendant.” D.B v. State, 916 N.E.2d at *3.
D.B. fails to prove his counsel’s representation fell below an objective standard of
reasonableness. As counsel’s representation has not been shown to have been
unreasonable, we need not address whether there is a reasonable probability that the
result of the proceeding would have been different but for defense counsel’s alleged
inadequate representation.
Conclusion
In support of his claim that he received ineffective assistance of trial counsel, D.B.
fails to raise any issue apart from that of an alleged Bruton violation, an issue already
decided and barred from reconsideration by res judicata. The post-conviction court did
not err when it denied D.B.’s petition for post-conviction relief. Therefore, we affirm the
denial of his petition.
Affirmed.
BAKER, J., and BRADFORD, J., concur.