Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before FILED any court except for the purpose of Jul 25 2012, 8:25 am establishing the defense of res judicata, collateral estoppel, or the law of the CLERK of the supreme court, court of appeals and case. tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER Public Defender of Indiana Attorney General of Indiana
J. MICHAEL SAUER ELLEN H. MEILAENDER Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
PAUL LEWIS, ) ) Appellant-Petitioner, ) ) vs. ) No. 53A01-1201-PC-1 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Marc R. Kellams, Judge Cause No. 53C02-0710-PC-1042
July 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge Case Summary
Paul Lewis appeals the post-conviction court’s denial of his petition for post-
conviction relief. We affirm.
Issues
Lewis raises three issues, which we restate as:
I. whether he was denied the effective assistance of trial counsel;
II. whether he was denied due process because the State failed to disclose material evidence; and
III. whether he is entitled to a new trial due to the cumulative effect of trial counsel’s alleged errors and the State’s failure to disclose evidence.
Facts
The facts, as stated in Lewis’s direct appeal, follow:
During the early morning hours of May 6, 2006, Lewis and his girlfriend, Rachel Pruitt, were at Anthony Rucker’s apartment in Bloomington. At some point, Pruitt walked into one of the bedrooms to plug in her cell phone. Lewis followed Pruitt and grabbed her by the hair. Lewis started banging Pruitt’s head against the wall, placed his hands around her throat, and squeezed until she “started seeing black.” [Trial] Tr. p. 136. After hearing the commotion, Rucker walked into the bedroom and saw Lewis choking Pruitt. Lewis was also banging Pruitt’s head against the wall, and Rucker could feel the vibrations through his feet. Pruitt’s knees were buckling, her mouth was turning “white and bluish,” and she was unable to speak because of the choking. Id. at 91. Although Rucker was able to initially pull Lewis away, Lewis again approached Pruitt and struck her in the face. While Rucker initially called 911, he hung up because he did not want to get Lewis or Pruitt in trouble. However, Bloomington Police Officer Joseph Henry was dispatched to
2 the scene in response to the 911 hang-up call. When Officer Henry arrived, he spoke with Rucker, who informed him that a female had just been battered in his apartment. At that point, Officer Henry saw Pruitt looking out of an upstairs window and crying. Pruitt came downstairs but was hysterical and crying so hard that she was unable to speak. After several minutes, Pruitt told Officer Henry that Lewis had grabbed her by the hair, slammed her head into the wall multiple times, grabbed her by the throat with both hands, and choked her. She also told Officer Henry that Lewis had slapped her in the face several times. Pruitt had red marks on her chest and around her neck. After Pruitt complained of a sore head and neck, Officer Henry drove her to the Bloomington Hospital emergency room. Dr. John Ray examined Pruitt and diagnosed her with a concussion, bruising, and muscle strain. Pruitt scored her pain as a “nine” on a scale of one to ten, with ten being the most severe pain. Id. at 165, 183-84. When considering the nature and severity of Pruitt’s injuries, Dr. Ray did not believe that Pruitt had exaggerated her pain level.
Lewis v. State, No. 53A04-0609-CR-511, slip op. at 2-3 (Ind. Ct. App. Mar. 19, 2007),
trans. denied.
The State charged Lewis with Class C felony battery and Class D felony
intimidation and alleged that he was an habitual offender. A jury found Lewis guilty as
charged and found that he was an habitual offender. The trial court sentenced Lewis to
twenty-three years in the Department of Correction.
Lewis appealed his convictions and argued that the evidence was insufficient to
convict him of Class C felony battery because Pruitt’s injuries did not amount to “serious
bodily injury.” Id. at 4. We concluded that the jury could have reasonably inferred from
the evidence that Pruitt received “serious bodily injury” and held that the evidence was
sufficient to sustain Lewis’s conviction. Id. at 6. We also rejected Lewis’s argument that
3 the trial court should have granted his request for a mistrial due to the jury foreman
mistakenly signing the wrong verdict form and then tearing up that form.
Lewis filed a petition for post-conviction relief, arguing ineffective assistance of
trial counsel, ineffective assistance of appellate counsel, and suppression of evidence by
the State. After a hearing at which Lewis’s trial counsel testified, the post-conviction
court entered findings of fact and conclusions thereon granting in part and denying in part
Lewis’s petition. The post-conviction court found ineffective assistance of appellate
counsel and reduced Lewis’s sentence to twenty-one years, but the post-conviction court
rejected the remaining arguments. Lewis filed a motion to correct error, which was
deemed denied. Lewis now appeals.
Analysis
The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674,
679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of
post-conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse the
judgment unless the evidence as a whole unerringly and unmistakably leads to a
conclusion opposite that reached by the post-conviction court. Id. Further, the post-
conviction court in this case entered findings of fact and conclusions thereon in
accordance with Indiana Post-Conviction Rule 1(6). 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
4 review, we accept findings of fact unless clearly erroneous, but we accord no deference 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.
I. Ineffective Assistance of Trial Counsel
Lewis first argues that he was denied the effective assistance of trial counsel. To
prevail on a claim of ineffective assistance of counsel, Lewis must demonstrate both that
his counsel’s performance was deficient and that the petitioner was prejudiced by the
deficient performance. See Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert. denied.
A counsel’s performance is deficient if it falls below an objective standard of
reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816,
824 (Ind. 2002). To meet the appropriate test for prejudice, the petitioner must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State,
845 N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be
resolved by a prejudice inquiry alone. Id.
A. Lesser Included Instruction
Lewis first claims that his trial counsel was ineffective because he failed to request
a jury instruction on the lesser included offense of Class A misdemeanor battery or argue
that the evidence was insufficient to demonstrate the “serious bodily injury” necessary to
5 prove Class C felony battery. “It is well-established that trial strategy is not subject to
attack through an ineffective assistance of counsel claim, unless the strategy is so
deficient or unreasonable as to fall outside of the objective standard of reasonableness.”
Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). “This is so even when ‘such choices
may be subject to criticism or the choice ultimately prove detrimental to the defendant.’”
Id. (quoting Garrett v. State, 602 N.E.2d 139, 142 (Ind. 1992)).
Our supreme court has held that “a tactical decision not to tender a lesser included
offense does not constitute ineffective assistance of counsel, even where the lesser
included offense is inherently included in the greater offense.” Id. In fact, our supreme
court noted: “ʻIt is not sound policy for this Court to second-guess an attorney through
the distortions of hindsight.’” Id. (quoting Page v. State, 615 N.E.2d 894, 896 (Ind.
1993)).
In Autrey, the defendant was found guilty of murder and argued on appeal that his
trial counsel should have tendered instructions regarding lesser included offenses of
murder. Our supreme court noted that “[t]he record contain[ed] numerous indications
that trial counsel made the decision not to tender lesser included offenses as part of an ‘all
or nothing’ trial strategy.” Id. at 1141. Rejecting the defendant’s ineffective assistance
of counsel argument, the court noted that his trial counsel had attempted to establish a
foundation for the potential acquittal of his client. Id. “The fact that the jury found the
defendant guilty does not make this strategy deficient.” Id. at 1142. “This was an
instance where the guilt of defendant rested upon the credibility of the witnesses, which
is the sole province of the jury.” Id.
6 Although Lewis relies on portions of his trial counsel’s post-conviction hearing
testimony regarding his trial strategy and argues that Autrey is inapplicable, we disagree.
Based on Autrey, the post-conviction court here found that Lewis’s trial counsel also
employed an “all or nothing” strategy. Appellant’s App. p. 104. Lewis’s trial counsel
argued throughout the trial that Rucker and Pruitt were not credible, that their stories
were inconsistent with Pruitt’s injuries, the condition of her clothing, and the condition of
the apartment, that Rucker and Pruitt had motivations to lie, and that the State had failed
to prove its case beyond a reasonable doubt. His trial counsel repeatedly argued that,
although something happened in the apartment that evening, the State failed to prove that
Lewis battered Pruitt. A request for a lesser included offense instruction would have
implied that Lewis did, in fact, batter Pruitt, which would have been inconsistent with
trial counsel’s arguments throughout the trial. We further note that, on direct appeal, we
rejected Lewis’s argument that the evidence was insufficient to demonstrate serious
bodily injury.
We cannot say that Lewis’s trial counsel’s strategy and failure to request an
instruction on the lesser included offense was “so deficient or unreasonable as to fall
outside of the objective standard of reasonableness.” Autrey, 700 N.E.2d at 1141; see
also Roche v. State, 690 N.E.2d 1115, 1126 (Ind. 1997) (“The decision to pursue such a
theme would, of course, have been a matter of trial strategy which cannot form the basis
for establishing ineffective assistance of trial counsel unless there was no sound basis for
not pursuing the strategy.”). “Because trial counsel is afforded considerable discretion in
choosing strategy and tactics, a strong presumption arises that counsel rendered adequate
7 assistance.” Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). The post-conviction court
found that Lewis’s trial counsel rendered adequate assistance, and we cannot say those
findings are clearly erroneous.
B. Investigation, Preparation, and Cross-examination
Lewis next argues that his trial counsel was ineffective because he failed to
adequately investigate, prepare for trial, or cross-examine the witnesses. Specifically,
Lewis argues that his trial counsel: (1) confused the jury with “disjointed references to a
person named Vaughn;” (2) failed to speak with Dr. Ray, who treated Pruitt in the
emergency room, before he testified; (3) failed to challenge Dr. Ray’s concussion
diagnosis; (4) failed to challenge Dr. Ray’s testimony that Pruitt tested positive for
opiates as a result of medication he gave her; (5) failed to investigate Pruitt’s visit to the
hospital ten days earlier; (6) failed to present evidence regarding Pruitt’s opiate addiction;
(7) failed to properly cross-examine Pruitt regarding her prescription; (8) failed to argue
that Pruitt went to the hospital to avoid having her probation revoked; (9) failed to use
Pruitt’s deposition to impeach her testimony that Lewis threatened to kill her; (10) failed
to use Rucker’s earlier statement to impeach his testimony that Lewis threatened to kill
Pruitt; (11) failed to use the investigating officer’s testimony to challenge Pruitt and
Rucker’s claim that Lewis threatened Pruitt; (12) failed to challenge Rucker’s claim of a
close friendship with Lewis; (13) failed to impeach Rucker as to when he called the
police; and (14) failed to properly impeach Rucker and Pruitt by showing differences
between their stories. Appellant’s Br. p. 15.
8 The post-conviction court did not separately address each of these allegations of
inadequate representation. Rather, the post-conviction court found:
Petitioner concedes that trial counsel did in fact impeach the testimony of State’s witnesses. However, he further contends that counsel was ineffective by enumerating the myriad ways in which counsel did not attack the witness’ [sic] credibility. Petitioner takes issue with trial counsel for challenging the credibility of State witnesses only “in a limited manner.” However, counsel is permitted to make reasonable judgments in strategy, including how and when to attack witness credibility. Trial counsel testified that his perception was that the jury had seen and acknowledged the impeachment of witness’ testimony; he did not feel that further attacks were necessary. According to precedent, this is the prerogative of trial counsel and is awarded deference so long as it is not unreasonable. Given that trial counsel possessed and put into action a trial strategy that he felt adequate, the court finds that further failure to impeach witness’ testimony at trial does not constitute ineffective assistance of counsel.
Appellant’s App. p. 105.
It is undisputed that effective representation requires adequate pretrial
investigation and preparation. Badelle v. State, 754 N.E.2d 510, 538 (Ind. Ct. App.
2001), trans. denied. However, it is well-settled that we should resist judging an
attorney’s performance with the benefit of hindsight. Id. As such, “[w]hen deciding a
claim of ineffective assistance of counsel for failure to investigate, we apply a great deal
of deference to counsel’s judgments.” Boesch v. State, 778 N.E.2d 1276, 1283 (Ind.
2002). Furthermore, “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). The nature and extent of cross-examination is a
9 matter of strategy delegated to trial counsel. Waldon v. State, 684 N.E.2d 206, 208 (Ind.
Ct. App. 1997), trans. denied.
During his opening statement, Lewis’s trial counsel argued that Pruitt and
Rucker’s stories were not logical, that they were not credible, and that they were using
drugs and alcohol on the night in question. He objected repeatedly during the State’s
direct examination of Officer Henry and cross-examined him extensively regarding Pruitt
and Rucker’s appearances, their intoxication, Pruitt’s injuries, and the condition of the
apartment. During Rucker’s testimony, Lewis’s trial counsel objected during direct
examination and cross-examined Rucker regarding the condition of the apartment,
Pruitt’s injuries, and their ingestion of drugs. During Pruitt’s testimony, trial counsel
cross-examined her extensively regarding medications she was taking, alleged injuries
she sustained, the condition of the apartment, her probation, and the blood screen
performed at the hospital. He also objected to the admission of Dr. Ray’s testimony and
cross-examined him regarding medications given to Pruitt, the blood screen performed at
the hospital, and autoerotic asphyxiation. During closing arguments, he emphasized that
every element of the offense must be proven beyond a reasonable doubt, that Pruitt and
Rucker had motivations to lie to the police, that Pruitt and Rucker’s stories were
inconsistent, that their stories were inconsistent with Pruitt’s injuries, the condition of the
apartment, and the condition of her clothing, and that Pruitt’s injuries were consistent
with autoerotic asphyxiation. Trial counsel argued that the State failed to prove the
offense beyond a reasonable doubt.
10 Lewis’s trial counsel attacked Pruitt and Rucker’s credibility and repeatedly
pointed out inconsistencies. Our review of the record reveals that the references to
Vaughn were not unexplained or confusing, that Pruitt’s drug use1 and criminal history
was adequately addressed, and that Dr. Ray’s testimony was used to raise the issue of
autoerotic asphyxiation. Trial counsel’s failure to explain that Pruitt tested positive for
opiates prior to being given any medication at the emergency room did not prejudice
Lewis. The jury was aware that Pruitt had been using marijuana and tested positive at the
emergency room for other drugs. The jury was also aware that Pruitt was on probation
and could have had her probation revoked for illegal drug usage. The other areas that
trial counsel failed to impeach Pruitt or Rucker on are simply too minor to establish the
prejudice necessary to prove an ineffective assistance of counsel claim.
Trial counsel’s strategy was adequate, and we cannot say that the post-conviction
court’s finding of no deficient performance by Lewis’s trial counsel is clearly erroneous.
Furthermore, Lewis has failed to demonstrate that he was prejudiced by the minor alleged
deficiencies in trial counsel’s cross-examination or investigation.
II. Undisclosed Evidence
Next, relying on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), Lewis
argues that the State violated his right to due process when the State failed to provide him
with information. Lewis argues that the State failed to disclose the following
information: (1) Pruitt falsely told the hospital staff that she was in extreme pain so she
1 The trial court had granted a motion in limine to prevent any reference to Pruitt or Rucker’s prior substance use or abuse, including drugs and alcohol.
11 would be given opiate medication; (2) Kirsten Cardwell, the emergency room nurse, told
the prosecutor’s investigator that she was skeptical of Pruitt’s claims because her injuries
were inconsistent with her story; (3) Pruitt did not think Lewis ever hit her but that he
was just “rough” with her.
Under Brady, “the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or
punishment, irrespective of the good faith or the bad faith of the prosecution.” Brady,
373 U.S. at 87, 83 S. Ct. at 1196-97. To establish a Brady violation, a defendant must
show “(1) that the prosecution suppressed evidence; (2) that the evidence was favorable
to the defense; and (3) that the evidence was material to an issue at trial.” Stephenson v.
State, 864 N.E.2d 1022, 1056-57 (Ind. 2007), cert. denied. Evidence is material under
Brady if the defendant demonstrates “a reasonable probability that the result of the
proceeding would be different if the State had disclosed [the] evidence.” Id. at 1057.
However, “the State will not be found to have suppressed material information if that
information was available to a defendant through the exercise of reasonable diligence.”
Id.
The post-conviction court here noted that the State “did not object” during the
post-conviction proceedings to the admission of the instances of alleged failure to
disclose and that the “salient issue” was whether any of the instances produced “a
reasonable probability of undermining confidence in the outcome of the trial.”2
2 The State failed to file an answer to Lewis’s petition for post-conviction relief and admitted:
12 Appellant’s App. p. 103. The post-conviction court found that the evidence “doesn’t
appear to be anything so obviously exculpatory that it undermine[d] the confidence in the
outcome of the case.” Id.
The first claim is that Pruitt falsely told the hospital staff that she was in extreme
pain so she would be given opiate medication. Given the State’s admission, we have no
context for this statement or how it was determined to be false. Regardless, the jury was
presented with evidence that Lewis choked Pruitt and slammed her head onto the wall,
that her neck was red, that Pruitt was diagnosed with a concussion, and that Dr. Ray did
not believe Pruitt’s complaints of pain were exaggerated. The jury was also aware that
Pruitt had taken various drugs illegally that day. We agree with the State that, even if this
alleged statement had been admitted, “it would have constituted merely one more piece
of impeachment for a cross-examination that already vigorously attacked Pruitt’s
(1) The State of Indiana failed to disclose to Lewis that Kirsten Cardwell, the nurse who treated the alleged victim in the emergency room at Bloomington Hospital, told the prosecutor’s investigator that she was skeptical of the alleged victim’s claims because her “injuries” were inconsistent with her story of what occurred.
(2) The State of Indiana failed to disclose to Lewis that the alleged victim told a Monroe County Prosecutor’s investigator that she did not think Lewis ever hit her, but that he was just “rough” with her.
*****
(4) The State of Indiana failed to disclose to Lewis that the alleged victim falsely told Bloomington Hospital staff that she was in extreme pain so she would be given opiate medication.
Appellant’s App. p. 55; P-C.R. Trans. pp. 7-8. 13 credibility.” Appellee’s Br. p. 27. Lewis has not demonstrated that this undisclosed
evidence was material.
The second assertion of undisclosed evidence is that Cardwell, the emergency
room nurse, told the prosecutor’s investigator that she was skeptical of Pruitt’s claims
because her injuries were inconsistent with her story. At the post-conviction hearing,
Cardwell testified that she did not recall Pruitt or making the statement to the
investigator. Again, even if Cardwell’s statement to the investigator had been admitted at
trial, it was contradicted by Dr. Ray’s testimony that he did not believe Pruitt’s
complaints of pain were exaggerated. Further, Lewis’s trial counsel had already
repeatedly argued that Pruitt’s injuries were not consistent with her story. Lewis has not
demonstrated a reasonable probability that the result of the proceeding would be different
if the State had disclosed this evidence.
The third statement was that Pruitt did not think Lewis ever hit her but that he was
just “rough” with her. Pruitt testified that Lewis grabbed her, “bang[ed her] head off of
the wall repeatedly,” choked her by squeezing her neck, and tried to hit her in the
bathroom. Trial Tr. p. 136. She told Officer Henry that Lewis had slapped her in the
bathroom. Rucker also testified that Lewis was hitting Pruitt in the bathroom with “his
open hand and closed hand.” Id. at 101. To the extent this third statement was
inconsistent with the testimony that Lewis actually hit Pruitt in the bathroom, we cannot
say that its admission would have resulted in a reasonable probability of a different
outcome. Pruitt’s credibility was already extensively called into question, and the
choking and banging her head on the wall were enough to sustain a conviction for
14 battery. Lewis has failed to demonstrate that the post-conviction court’s finding on this
issue is clearly erroneous.
III. Cumulative Errors
Lewis also argues that he is entitled to a new trial as a result of the cumulative
effect of the ineffective assistance of trial counsel and undisclosed evidence. According
to Lewis, even if his individual ineffective assistance of trial counsel and undisclosed
evidence claims fail, he is entitled to relief based on the cumulative effect of those
alleged errors.
Our supreme court has held that “[e]rrors by counsel that are not individually
sufficient to prove ineffective representation may add up to ineffective assistance when
viewed cumulatively.” French, 778 N.E.2d at 826. “A conviction based upon an
accumulation of defense attorney errors, when counsel’s mistakes do substantial damage
to the defense, must be reversed.” Id. We agree with the State that the errors alleged by
Lewis are minor and “nitpicking.” Appellee’s Br. p. 29. We have already concluded that
trial counsel’s performance was not deficient and, if it was, Lewis was not prejudiced.
Moreover, the evidence suppressed by the State was not material. We cannot say that the
alleged errors did substantial damage to Lewis’s defense.
Conclusion
The post-conviction court’s findings regarding ineffective assistance of trial
counsel and the Brady violation were not clearly erroneous. Moreover, the cumulative
effect of the alleged errors does not warrant relief. We affirm.
15 Affirmed.
FRIEDLANDER, J., and MAY, J., concur.