MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 19 2019, 10:21 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Emmanuel J. Cain Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Emmanuel J. Cain, August 19, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-1979 v. Appeal from the Monroe Circuit Court State of Indiana, The Honorable Marc R. Kellams, Appellee-Respondent. Judge Trial Court Cause No. 53C02-1601-PC-140
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 1 of 9 Case Summary [1] Pro-se Appellant-Petitioner Emmanuel J. Cain (“Cain”) appeals the denial of
his petition for post-conviction relief, following his convictions for two counts
of Dealing in Cocaine. We affirm.
Issues [2] Cain presents two issues for review:
I. Whether he was denied the effective assistance of trial counsel; and
II. Whether he was denied the effective assistance of appellate counsel.
Facts and Procedural History [3] The relevant facts were recited by a panel of this Court on direct appeal, as
follows:
On July 18, 2013, confidential informant C.H. contacted Bloomington Police Department Detective Erich Teuton. Detective Teuton arranged to have C.H. buy drugs from Cain at a hotel in Bloomington and met her there at 8:30 p.m. Detective Teuton searched C.H. for drugs and money, and he provided her with a video recording device and money to buy drugs. C.H. then bought two half-gram bags of crack cocaine from Cain. The resulting buy video was of poor quality, and C.H. had entered another room before locating Cain.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 2 of 9 In order to obtain better quality, recorded evidence, C.H. and Detective Teuton conducted two similar controlled buys from Cain the following day, this time using a different recording device. The first buy on July 19 yielded two bags containing .27 grams and .19 grams of crack cocaine, and the second buy yielded two more bags containing .27 and .23 grams of crack cocaine. The Indiana State Crime Lab tested the larger bags from each buy and confirmed that both contained a cocaine base.
On August 15, 2013, the State charged Cain with three counts of dealing in cocaine, all as Class B felonies, each of which related to one of the three sales of crack cocaine that transpired on July 18 and 19. At his ensuing jury trial on April 14, 2014, the trial court admitted into evidence the video recordings of Cain’s sales to C.H. and Detective Teuton’s related testimony. Cain did not object to the admission of this evidence. However, after the jury had returned its verdicts, Cain for the first time complained that the State’s video evidence violated his Sixth Amendment rights.
Cain v. State, No. 53A01-1406-CR-242, slip op. at 1 (May 26, 2015), trans.
denied.
[4] Cain appealed, challenging his convictions and his twenty-year aggregate
sentence. He raised three issues: whether the trial court committed
fundamental error when it admitted recordings of Cain’s drug transactions and
testimony regarding those recordings; whether sufficient evidence supported his
convictions; and whether his sentence was inappropriate. See id. His
convictions and sentence were affirmed and the Indiana Supreme Court denied
transfer.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 3 of 9 [5] On January 22, 2016, Cain filed his petition for post-conviction relief, which
was amended on February 28, 2018. Also on February 28, the post-conviction
court conducted a hearing at which argument was heard but no testimony was
presented. On May 9, 2018, the post-conviction court entered its findings,
conclusions, and order denying Cain post-conviction relief. He now appeals.
Discussion and Decision 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.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 4 of 9 Effectiveness of Trial Counsel [7] Cain claims that his counsel was ineffective because (1) he failed to move to
suppress the videos on grounds that they were obtained in violation of Cain’s
rights under the Fourth Amendment to the United States Constitution and
Article 1, Section 13 of the Indiana Constitution and (2) he had a conflict of
interest precluding his effective representation of Cain.
[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
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 87).
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.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 5 of 9 [9] We “strongly presume” that counsel provided adequate assistance and
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 19 2019, 10:21 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Emmanuel J. Cain Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Emmanuel J. Cain, August 19, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-1979 v. Appeal from the Monroe Circuit Court State of Indiana, The Honorable Marc R. Kellams, Appellee-Respondent. Judge Trial Court Cause No. 53C02-1601-PC-140
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 1 of 9 Case Summary [1] Pro-se Appellant-Petitioner Emmanuel J. Cain (“Cain”) appeals the denial of
his petition for post-conviction relief, following his convictions for two counts
of Dealing in Cocaine. We affirm.
Issues [2] Cain presents two issues for review:
I. Whether he was denied the effective assistance of trial counsel; and
II. Whether he was denied the effective assistance of appellate counsel.
Facts and Procedural History [3] The relevant facts were recited by a panel of this Court on direct appeal, as
follows:
On July 18, 2013, confidential informant C.H. contacted Bloomington Police Department Detective Erich Teuton. Detective Teuton arranged to have C.H. buy drugs from Cain at a hotel in Bloomington and met her there at 8:30 p.m. Detective Teuton searched C.H. for drugs and money, and he provided her with a video recording device and money to buy drugs. C.H. then bought two half-gram bags of crack cocaine from Cain. The resulting buy video was of poor quality, and C.H. had entered another room before locating Cain.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 2 of 9 In order to obtain better quality, recorded evidence, C.H. and Detective Teuton conducted two similar controlled buys from Cain the following day, this time using a different recording device. The first buy on July 19 yielded two bags containing .27 grams and .19 grams of crack cocaine, and the second buy yielded two more bags containing .27 and .23 grams of crack cocaine. The Indiana State Crime Lab tested the larger bags from each buy and confirmed that both contained a cocaine base.
On August 15, 2013, the State charged Cain with three counts of dealing in cocaine, all as Class B felonies, each of which related to one of the three sales of crack cocaine that transpired on July 18 and 19. At his ensuing jury trial on April 14, 2014, the trial court admitted into evidence the video recordings of Cain’s sales to C.H. and Detective Teuton’s related testimony. Cain did not object to the admission of this evidence. However, after the jury had returned its verdicts, Cain for the first time complained that the State’s video evidence violated his Sixth Amendment rights.
Cain v. State, No. 53A01-1406-CR-242, slip op. at 1 (May 26, 2015), trans.
denied.
[4] Cain appealed, challenging his convictions and his twenty-year aggregate
sentence. He raised three issues: whether the trial court committed
fundamental error when it admitted recordings of Cain’s drug transactions and
testimony regarding those recordings; whether sufficient evidence supported his
convictions; and whether his sentence was inappropriate. See id. His
convictions and sentence were affirmed and the Indiana Supreme Court denied
transfer.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 3 of 9 [5] On January 22, 2016, Cain filed his petition for post-conviction relief, which
was amended on February 28, 2018. Also on February 28, the post-conviction
court conducted a hearing at which argument was heard but no testimony was
presented. On May 9, 2018, the post-conviction court entered its findings,
conclusions, and order denying Cain post-conviction relief. He now appeals.
Discussion and Decision 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.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 4 of 9 Effectiveness of Trial Counsel [7] Cain claims that his counsel was ineffective because (1) he failed to move to
suppress the videos on grounds that they were obtained in violation of Cain’s
rights under the Fourth Amendment to the United States Constitution and
Article 1, Section 13 of the Indiana Constitution and (2) he had a conflict of
interest precluding his effective representation of Cain.
[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
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 87).
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.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 5 of 9 [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). The decision whether or not to file a motion
to suppress is a matter of trial strategy. See Monegan v. State, 721 N.E.2d 243,
251 (Ind. 1999).
[10] At the post-conviction hearing, Cain presented argument to the court, but no
witnesses. According to Cain, he had asked his trial counsel to make a motion
to suppress the incriminating video recordings and counsel had refused to do
so. Cain asserted that he had “expected privacy” and did not “give consent to a
warrantless search of his identity.” (P-C.R. Tr., pgs. 8-9.) He also claimed that,
after the trial court denied trial counsel’s request for withdrawal, counsel was
thereafter ineffective because of a conflict of interest. In denying Cain post-
conviction relief, the court observed that trial counsel had objected to the video
recordings as lacking adequate foundation or any authentication testimony
from C.H. The post-conviction court concluded that Cain had not shown
additional grounds for suppression, nor had Cain demonstrated that there was a
conflict of interest precluding his trial counsel from effectively representing him.
[11] On appeal from the denial of post-conviction relief, Cain asserts that he had an
“expectation of privacy from being videotaped inside [the] motel room” and
“the covert camera becomes [sic] a warrantless seizure of Cain’s identity.”
Appellant’s Brief at 13. He suggests that his affirmative consent to video
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 6 of 9 recording was a mandatory prerequisite to its admission as evidence, arguing:
“it must be shown, before [an] informant’s seizure can be upheld, that
defendant had consented to informant’s relevant actions where informant is
acting as [a] police agent.” Id. at 14.
[12] Our Indiana Supreme Court has “reject[ed] claims that the broadcast and
recording of private conversations from a microphone and transmitter carried
by a consenting participant in the conversation violates the rights of the other
participants against unreasonable searches and seizures guaranteed by the
Fourth Amendment.” Snellgrove v. State, 569 N.E.2d 337, 339-40 (Ind. 1991).
In so doing, the Court relied upon the reasoning of the plurality opinion of
United States v. White, 401 U.S. 745, 752 (1971):
If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case.
[13] Properly-authenticated video recordings may be offered as substantive evidence
under a “silent witness” theory. McHenry v. State, 820 N.E.2d 124, 128 (Ind.
2005). Cain offers no legal authority to support his contention that the absence
of his affirmative consent to video recording rendered it inadmissible. And
while Cain baldly asserts that, had trial counsel moved to suppress the video
recordings on Fourth Amendment or Indiana constitutional grounds, they
would have been excluded, again he provides no legal authority for his broad
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 7 of 9 propositions. Cain has not shown that a motion to suppress made by trial
counsel would have succeeded and probably changed the outcome of the trial.
[14] “Ineffective assistance of counsel can occur where counsel is burdened by a
conflict of interest,” that is, “a division of loyalties.” Johnson v. State, 948
N.E.2d 331, 334 (Ind. 2011). But merely alleging a personal conflict or a
history of tactical disagreements is not equivalent to allegations of divided
loyalty between a defendant and another client. Id. at 335. Here, at most, Cain
has alleged that he complained about his trial counsel’s strategy,1 trial counsel
moved to withdraw his representation, and the trial court denied that motion.
Cain has not alleged, much less demonstrated, that trial counsel had an actual
conflict or divergent interests that precluded his effective representation of Cain.
Effectiveness of Appellate Counsel [15] A defendant is entitled to the effective assistance of appellate counsel. Stevens v.
State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged standard for
evaluating the assistance of trial counsel first enunciated in Strickland is
applicable to appellate counsel ineffective assistance claims. Bieghler v. State,
690 N.E.2d 188, 192 (Ind. 1997). There are three basic categories of alleged
appellate ineffectiveness: (1) denying access to an appeal, (2) waiver of issues,
and (3) failure to present issues well. Here, the second category is implicated,
1 According to Cain, he insisted that trial counsel should depose C.H. and trial counsel disagreed that a deposition was necessary.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 8 of 9 as Cain claims that appellate counsel “prejudiced him for not raising grounds of
exclusion of inadmissible evidence.” Appellant’s Brief at 7. However, he fails
to develop a corresponding argument.
Conclusion [16] Cain has not demonstrated his entitlement to post-conviction relief on grounds
of ineffectiveness of trial or appellate counsel. The post-conviction court
properly denied the petition for post-conviction relief.
[17] Affirmed.
May, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019 Page 9 of 9