Gourley v. State

640 N.E.2d 424, 1994 Ind. App. LEXIS 1264, 1994 WL 513983
CourtIndiana Court of Appeals
DecidedSeptember 21, 1994
DocketNo. 28A04-9310-PC-392
StatusPublished
Cited by2 cases

This text of 640 N.E.2d 424 (Gourley v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gourley v. State, 640 N.E.2d 424, 1994 Ind. App. LEXIS 1264, 1994 WL 513983 (Ind. Ct. App. 1994).

Opinion

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

In 1988, Michael Gourley was convicted of robbery as a class A felony.1 His conviction was affirmed on direct appeal. He now appeals from the denial of his petition for post-conviction relief. We affirm.

ISSUE

Was Gourley denied his constitutional right to effective assistance of counsel when his trial counsel failed to object to the crime victim’s out-of-court and in-court identification testimony?

FACTS

The “evidentiary facts” giving rise to Gour- . ley’s charge and conviction were summarized by our supreme court as follows:

“On the evening of December 11, 1982, two men entered a liquor store in Linton, Indiana. Donald Evans, the store clerk, observed the two men for approximately five or six minutes. The men purchased a six-pack of beer and left. Approximately twenty minutes later, the two men reentered the store. One of the men had a club in his hand and stuck it into Evans’s stomach and ordered him to back up and raise his hands. Evans complied. The intruders unsuccessfully attempted to open the cash register, and ordered Evans to open it.' After Evans complied, one of the men struck Evans on the head with the club which was about three feet long and looked like an ax handle. Evans was then struck a second time on the back of the head, and the robbers left with cash from the register. Evans immediately telephoned the police, and then reclined back on the floor because he was dizzy.
Officers Bill Burress and Norman Watson were present at the Linton police station when Evans called to report that he had just been robbed and struck on the head. Burress immediately went to the scene of the crime and observed the victim near the phone, bleeding from the head. Before Evans was removed from the scene by ambulance, he described the two attackers. One was approximately six feet tall and had long dark hair and a mustache. The other man was slightly shorter, with light hair and wearing an army fatigue jacket. Evans also stated that he had been struck with an object similar to a baseball bat. Upon leaving the scene of the robbery, as Burress and Watson were driving past a local motel, they observed a change in position of a van which they had seen earlier in the evening. The van did not have a license plate, and the officers stopped to check the registration. There was a temporary Illinois registration on the windshield in Parr’s name. The officers then spoke with the motel manager and checked the motel register. They discovered that the driver was registered as ‘Perry’ and they returned to the van to get information from the registration. As they pointed a flashlight at the permit, it illuminated the interior of the van and the officers saw an object which appeared to be a large tool handle. It was, painted red and Watson thought the paint might be blood. The officers called for assistance and sev[426]*426eral officers including police chief Jesse Martin responded. The chief, accompanied by the motel manager, went to ‘Perry’s’ room and knocked on the door. Initially a woman answered, and then Parr, wearing a fatigue jacket, came to the door. The chief questioned him about his ownership of the van and about its registration. Parr and the chief walked to the van and Parr pointed out the temporary permit. At this point, the chief asked Parr if he owned the club in the back of the van and Parr answered affirmatively. The chief asked to examine the club and Parr consented. Parr opened the van, took out the handle and gave it to Chief Martin. When asked by the chief if he would be staying at the motel, Parr replied that he would be there until morning. The chief asked permission to keep the handle until the next morning, and Parr agreed. The chief radioed to other officers, instructing them to patrol the area closely to see if the van had left. When observed being driven shortly afterward, the van was stopped and found to be occupied by Parr and Gourley,2 who fit Evans’s description of his attackers. Parr and Gourley were placed in handcuffs and taken to the Linton police station.
After Evans was treated and released from the hospital later that night, he was driven to the police station by his employer’s wife. Chief Martin had left a message requesting him to view two suspects. Evans arrived at the police station about 1:00 a.m. on December 12, 1982, less than four hours after the robbery. He was placed in a police vehicle with its headlights aimed at an entrance to the station. Defendants, handcuffed and accompanied by two uniformed officers, were brought onto the steps at this entrance, a distance of ten to fifteen feet from Evans, who positively identified defendants as his assailants. During Evans’s testimony at trial, Parr and Gourley were again identified as the two men who robbed the store and injured Evans.”

Parr v. State (1987), Ind., 504 N.E.2d 1014, 1019-20.

Gourley’s trial counsel filed a motion to suppress admission of Evans’s identification of the defendants because of “unnecessarily suggestive” show-up procedures. R. at 42. A hearing was held; briefs were filed; the motion was denied.

At trial, Gourley’s counsel did not object when Evans’s out-of-court and in-court identification testimony was admitted. Gourley’s appellate counsel challenged only the trial court’s ruling on the motion to suppress; the supreme court found the issue waived because trial counsel had failed to object. Parr, supra.

The post-conviction court held an eviden-tiary hearing at which Gourley’s trial counsel testified that he decided not to object at trial because his strategy was to use the allegedly suggestive identification procedures to undermine the credibility of the prosecution witnesses: “the story we were getting about the ... show-up was exactly the story I wanted to hear and I wanted to argue to the jury.” P.C.R.R. at 124. “[Mjyself and co-counsel ... felt like the best approach to take in trying to put in question ... identification was to show the whole history of the identification process that went on that evening.” P.C.R.R. at 118-19. “[I]t was certainly enough to give the jury something serious to think about as to whether or not the victim in this case was truly making an independent observation of the defendant.” P.C.R.R. at 119. Gourley’s appellate counsel submitted an affidavit concerning his framing of the direct appeal. The record of Gourley’s original trial was made part of the record.

Gourley appeals denial of his petition for post-conviction relief, claiming his trial counsel was ineffective for having failed to object to testimony of the pretrial identification, the suggestiveness of which tainted the in-eourt identification. Accordingly, Gourley contends, his appellate counsel was also ineffective for failure to raise trial counsel’s ineffectiveness.

[427]*427 DISCUSSION AND DECISION

A claim of ineffective assistance, as violating the Sixth Amendment of the U.S. Constitution, is subject to a two-part test. In order to prevail, Gourley must show that 1) his counsel’s performance fell below an objective standard of reasonableness, and 2) there is a reasonable probability that but for counsel’s deficient performance the result of the proceedings would have been different. Stroud v. State

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Cite This Page — Counsel Stack

Bluebook (online)
640 N.E.2d 424, 1994 Ind. App. LEXIS 1264, 1994 WL 513983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gourley-v-state-indctapp-1994.