MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 08 2020, 8:46 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 Kenny Green Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana Evan M. Comer Angela Sanchez Caroline G. Templeton Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kenny Green, May 8, 2020 Appellant-Petitioner, Court of Appeals Case No. 49A02-1702-PC-494 v. Appeal from the Marion Superior Court State of Indiana The Honorable Mark D. Stoner, Appellee-Respondent. Judge The Honorable Jeffrey L. Marchal, Magistrate Trial Court Cause No. 49G06-1010-PC-80292
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 1 of 12 [1] Kenny Green (“Green”) is serving an aggregate forty-year sentence for his Class
A felony rape and Class D felony auto theft convictions. The Marion Superior
Court denied Kenny Green’s pro se petition for post-conviction relief of his rape
conviction. Green appeals and argues that he received ineffective assistance of
counsel at trial.
[2] We affirm.
Facts and Procedural History [3] In 2011, Green was convicted of Class A felony rape and Class D felony auto
theft. Green appealed his convictions and sentence, and the facts surrounding
his offenses were discussed in his direct appeal:
On May 18, 2009, P.E. met Green outside her apartment door and invited him inside because she was new to the apartment complex and wanted to meet other residents. P.E. had two other friends with her, and she and Green eventually drove P.E.’s friends to a nearby club. After P.E. and Green returned to P.E.’s apartment, they smoked crack cocaine. Green then left P.E.’s apartment but told her that he would be back.
Hours later, Green returned and asked P.E. if he could use her phone. As P.E. began to retrieve her phone from her purse, Green came up behind her and began to strangle her with a belt from her robe. After he threatened to cut her, Green forced P.E. to perform oral sex on him. Green then gagged P.E. with an electrical cord, pulled off her clothing, and raped her.
After raping P.E., Green took her car keys and cell phone from her purse. Green left P.E.'s apartment, and P.E. put on clothing and chased after him, but once outside, she saw Green driving
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 2 of 12 away in her car. P.E. then called 911 to report the rape and auto theft. P.E. told the responding officer that a man named K.G. had raped her and stolen her car. The officer observed that P.E. had red marks on the outside of her lips that extended down to her chin, red marks on her neck, an abrasion on her elbow, and bruising on her arms.
The officer sent P.E. to Methodist Hospital for a sexual assault examination. The forensic nurse examiner also observed the red marks near P.E.'s mouth, chin and neck, which she concluded were consistent with “marks made by strangulation by ligature.” The nurse examiner also observed injuries and abrasions to P.E.’s vagina, which were consistent with “blunt force trauma” and in the area of the vagina that is typically injured during a sexual assault.
On October 19, 2010, Green was charged with Class A felony rape, Class A felony criminal deviate conduct, Class B felony robbery, Class D felony strangulation, Class D felony criminal confinement, and Class D felony auto theft. After a two-day jury trial, Green was found guilty of rape, strangulation, criminal confinement, and auto theft, but was acquitted of criminal deviate conduct and robbery.
Green’s sentencing hearing was held on June 16, 2011. Although Green’s counsel did not argue for any mitigating circumstances, the trial court considered Green’s substance abuse as a mitigating factor. But the trial court determined that Green’s criminal history, consisting of several misdemeanor and felony convictions as well as probation revocations, outweighed that mitigating circumstance. The court then ordered Green to serve concurrent sentences of forty years for Class A felony rape and three years for Class D felony auto theft. The trial court declined to enter judgment on the strangulation and criminal confinement counts due to double jeopardy concerns. Green was also ordered
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 3 of 12 to register as a sex offender and found to be a sexually violent predator.
Green v. State, 49A02-1107-CR-611, 2012 WL 986646 at *1 (Ind. Ct. App. Mar.
22, 2012) (record citations omitted), trans. denied.
[4] In 2012, Green filed a pro se petition for post-conviction relief, and he filed an
amended petition in 2014. In his amended petition, he challenged the
effectiveness of both his trial and appellate counsel. Bifurcated hearings were
held on Green’s petition on November 19, 2015, and February 4, 2016. During
the hearings, Green elicited testimony from his trial counsel concerning the
victim’s inconsistent statements prior to trial and counsel’s advice regarding a
guilty plea offer. The trial court concluded that Green’s trial counsel and
appellate counsel were not ineffective and issued an order denying Green’s
petition for post-conviction relief on January 24, 2017. 1 Green now appeals pro
se challenging only the trial court’s conclusion that his trial counsel was not
ineffective.
Standard of Review [5] Our standard of review for claims of post-conviction court error is well settled:
1 Green’s appeal was initially dismissed by our court on October 4, 2017, because the transcript of the post- conviction hearing had not been filed, and Green had not filed a motion to compel the issuance of the Notice of Completion of Transcript within the time limits established by our appellate rules. One year later, our supreme court allowed Green to belatedly file a petition to transfer. On November 13, 2018, the court granted Green’s petition to transfer. In its order, the supreme court remanded Green’s appeal to our court with instructions to vacate our order of dismissal and to establish a briefing schedule for review of the appeal on its merits.
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 4 of 12 A post-conviction petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. On appeal from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.
Where, as here, the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post- Conviction Rule 1(6), we cannot affirm the judgment on any legal basis, but rather, must determine if the court’s findings are sufficient to support its judgment. Although we do not defer to the post-conviction court’s legal conclusions, we review the post- conviction court’s factual findings under a clearly erroneous standard. Accordingly, we will not reweigh the evidence or judge the credibility of witnesses, and we will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court’s decision.
Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014) (citations omitted)
trans. denied.
Discussion and Decision [6] “The criminal defendant’s right to counsel is foundational to our criminal
justice system, giving it legitimacy and fairness.” Bobadilla v. State, 117 N.E.3d
1272, 1279 (Ind. 2019). “The Sixth Amendment to the United States
Constitution guarantees criminal defendants the right to counsel and mandates
‘that ‘the right to counsel is the right to the effective assistance of counsel.’’” Id.
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 5 of 12 (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970)).
[7] A claim of ineffective assistance of trial counsel requires a showing that: (1)
Green’s trial counsel’s performance was deficient by falling below an objective
standard of reasonableness; and (2) that the deficient performance prejudiced
Green such that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
See Strickland, 466 U.S. at 694. Failure to satisfy either of the two elements will
cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). It is
well-settled that “[i]solated mistakes, poor strategy, or bad tactics do not
necessarily amount to ineffective assistance of counsel.” Herrera v. State, 679
N.E.2d 1322, 1326 (Ind. 1997) (citations omitted).
[8] If it is easier to dispose of an ineffectiveness claim on the lack of prejudice, then
this is the course we should follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind.
Ct. App. 2011); Armstrong v. State, 932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010).
Prejudice occurs when a reasonable probability exists that, but for counsel’s
errors, the result of the proceeding would have been different. Passwater v. State,
989 N.E.2d 766, 770 (Ind. 2013).
[9] Green raises several challenges to his trial counsel’s effectiveness. The
fundamental issue during Green’s trial was whether the victim consented to
sexual intercourse with Green. The bulk of Green’s arguments concerning his
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 6 of 12 trial counsel’s ineffectiveness revolve around counsel’s unsuccessful attempts to
undermine the victim’s credibility.
[10] First, we address Green’s argument that his trial counsel was ineffective for
failing to impeach the victim with her prior inconsistent statements. Trial
counsel was aware of the victim’s prior inconsistent statements, and during
cross-examination, counsel questioned her about inconsistent statements she
made to law enforcement. See Trial Tr. Vol. 1 pp. 192–207. During closing
arguments, Green’s trial counsel relied on the victim’s inconsistent statements
to attack her credibility in his defense of Green. Trial Tr. Vol. 2, pp. 301–05.
[11] But trial counsel did not question the victim about inconsistencies between a
pre-trial audiotaped statement and her trial testimony. These prior inconsistent
statements that Green specifically addresses in his brief are minor, such as the
victim’s confusion of the precise date of the offense.
[12] Despite his efforts to impeach the victim, trial counsel found her testimony
credible. P-C.R. Tr. pp. 28–29. Importantly, her trial testimony was
corroborated by physical evidence found at the scene, by evidence of injuries
suffered that were consistent with her version of the offense, and by the forensic
nurse examiner’s testimony.
[13] Green also claims that trial counsel should have impeached the victim with a
prior rape allegation she made against another individual. The State filed a
motion in limine concerning the prior rape allegation. Trial counsel did not
object to the motion because there was no proper basis for doing so. Evidence
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 7 of 12 concerning prior rape allegations is prohibited by Evidence Rule 412 and
Indiana Code section 35-37-4-4. Green asserts that the prior rape allegation was
false, but there is no evidence to support that claim. 2 The allegation did not
result in criminal charges against the accused, but that does not affirmatively
establish that the victim made a false accusation. Therefore, counsel was not
ineffective for failing to impeach the victim with the prior rape allegation.
[14] “The method of impeaching witnesses is a tactical decision and a matter of trial
strategy that does not amount to ineffective assistance.” Kubsch v. State, 934
N.E.2d 1138, 1151 (Ind. 2010); see also McCary v. State, 761 N.E.2d 389, 392
(Ind. 2002) (quotation and citation omitted) (“Few points of law are as clearly
established as the principle that tactical or strategic decisions will not support a
claim of ineffective assistance.”). Trial counsel attempted to impeach the victim
and cast doubt on her credibility by questioning her about her prior inconsistent
statements. Counsel did not question the victim about each prior inconsistent
statement known to counsel. It was within counsel’s discretion to consider the
effect of putting each minor prior inconsistent statement before the jury,
especially given the strength of the evidence that corroborated the victim’s
account of the rape.
2 A prior accusation of rape is admissible if (1) the victim has admitted that her prior accusation of rape is false; or (2) the victim’s prior accusation is demonstrably false. Graham v. State, 736 N.E.2d 822, 825 (Ind. Ct. App. 2000), trans. denied. “Prior accusations are demonstrably false where the victim has admitted the falsity of the charges or they have been disproved.” Candler v. State, 837 N.E.2d 1100, 1103 (Ind. Ct. App. 2005).
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 8 of 12 [15] For all of these reasons, Green has not established that he was prejudiced by
trial counsel’s failure to impeach the victim with her prior inconsistent
statements or her prior rape allegation.
[16] Next, Green argues that his trial counsel was ineffective for failing to
communicate and consult with him. He complains that trial counsel only
visited with him twice for less than forty minutes before his jury trial began, and
that counsel failed to investigate impeachment evidence. Green claims that if
trial counsel had spent more time communicating with him, counsel would
have had a better understanding of Green’s version of the events and had more
evidence to impeach the victim’s credibility. Appellant’s Br. at 20.
[17] Specifically, Green contends counsel should have consulted with him on his
claim that the victim lied when she testified that she did not buy the cocaine
that she and Green smoked together. He asserts that if counsel had spent more
time communicating with him prior to trial, they could have discussed and
investigated evidence that would have undermined the victim’s credibility, such
as obtaining the surveillance video from the bank machine where the victim
withdrew money on the night of the offense.
[18] There is no evidence to support Green’s claim that trial counsel failed to
adequately communicate with him, but even if there was, Green has not
established that the outcome of his trial would have been different if the jury
had heard evidence that the victim lied about purchasing the cocaine. The
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 9 of 12 victim admitted that she and Green smoked cocaine together before Green
returned to her apartment and raped her.
[19] At the post-conviction hearing, trial counsel testified that he recalled meeting
with Green to discuss the case and potential defenses, and he either played the
victim’s audiotaped statement for Green or discussed the statement with him.
P-C.-R. Tr. pp. 25–26. Green’s claim that if counsel had spent more time
consulting with him there would have been “more evidence to impeach” the
victim is not supported by any evidence. See Appellant’s Br. at 20. For all of
these reasons, Green has not established that his trial counsel was ineffective for
failing to adequately communicate and consult with him.
[20] Third, Green argues that his trial counsel was ineffective for failing to provide
him with copies of discovery prior to trial, including police reports, pictures and
depositions. Trial counsel believed that Green had been provided discovery in
the case by his first public defender. At the PCR hearing, counsel also testified
that he generally did not provide defendants with discovery so that other
inmates at the jail would not have access to the documents. P-C.R. Tr. pp. 8–9.
Trial counsel stated that he did not recall Green requesting discovery from him,
but that he would have provided copies of the documents if asked. Id. Even
assuming Green requested discovery he did not receive, Green has not argued
how counsel’s failure to provide discovery affected the outcome of his trial.
Therefore, Green has not established that he was prejudiced because trial
counsel did not provide him with copies of discovery.
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 10 of 12 [21] Fourth, Green contends that his trial counsel misadvised him during plea
negotiations. Shortly before Green’s trial began, the State offered Green a plea
agreement whereby Green would plead guilty to Class D felony sexual battery
and Class D felony auto theft with concurrent sentences of three years for each
conviction. The trial court advised Green that if he accepted the State’s offer, he
would have 328 days remaining to serve in jail. The trial court asked if Green
would like to consult with his trial counsel, and Green stated he did not need
additional time and rejected the State’s offer. Trial Tr. pp. 350–51.
[22] Green has not established that he received faulty advice during the plea
negotiations. Green argues that he took counsel’s advice and rejected the plea
offer and he references counsel’s “erroneous” advice. Appellant’s Br. at 25. But
he has not offered any evidence establishing what counsel’s advice was aside
from his own self-serving testimony at the post-conviction hearing, which the
post-conviction court found was not credible. Appellant’s App. p. 20. And he
rejected the State’s final plea offer after stating that he did not need to consult
with his counsel. Trial Tr. pp. 350–51. For these reasons, we conclude that
Green’s trial counsel was not ineffective for advising Green during plea
negotiations with the State.
[23] Finally, Green claims that trial counsel’s cumulative errors prejudiced him and
subjected him to ineffective assistance of trial counsel. Green has not
established that his trial counsel was ineffective, and therefore, he has not
established that he is entitled to relief based on the cumulative effect of trial
counsel’s alleged errors.
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 11 of 12 Conclusion [24] Green has not established that he received ineffective assistance of counsel at
trial. We therefore affirm the trial court’s order denying his petition for post-
conviction relief.
[25] Affirmed.
Kirsch, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 12 of 12