Smith v. Neal

623 F. App'x 798
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 27, 2015
DocketNo. 14-1757
StatusPublished
Cited by1 cases

This text of 623 F. App'x 798 (Smith v. Neal) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Neal, 623 F. App'x 798 (7th Cir. 2015).

Opinion

ORDER

Kevin Smith, an Indiana prisoner, was convicted after a jury found him guilty of rape, criminal deviate conduct, criminal confinement, and sexual battery. He was sentenced to 58 years’ imprisonment. At trial Smith claimed to have had a consensual sexual encounter with the victim, but [799]*799testified that during the afternoon of the offense he was running errands with his son. Defense counsel presented no witnesses to corroborate Smith’s testimony. Smith asserted in state post-conviction proceedings that counsel was ineffective for not investigating and calling alibi witnesses. The last state court to address this issue concluded that counsel investigated the witnesses and strategically decided not to call them in favor of a consent defense. Smith renewed the claim in a petition under 28 U.S.C. § 2254 and after the district court denied relief, this court certified the question for appeal. Because the Indiana Court of Appeals did not unreasonably apply clearly established federal law when evaluating counsel’s effectiveness, we affirm the judgment.

The facts of the crime are set forth by the Court of Appeals of Indiana in Smith v. Indiana, 984 N.E.2d 260, 2013 WL 653725 (Ind.App.2013) (unpublished). According to her testimony at trial, on August 15, 2005, 18-year-old M.S. was walking past Smith’s home on her way to a friend’s house. M.S. had previously met Smith through his girlfriend, but M.S. and Smith were not friends and certainly not sexual partners. Smith told M.S. that his girlfriend could give her a ride home and invited M.S. inside (in reality Smith’s girlfriend was not present). Once M.S. was inside, Smith locked the door and asked M.S. if she wanted to have sex, and M.S. declined. Smith then grabbed her arms, held a knife to her throat, dragged her into the bedroom, and threw her on the bed. Smith removed her shirt and then forced her to perform fellatio on him for ten to fifteen minutes under threat of anal sex. Smith also removed M.S.’s pants and tampon while M.S. struggled to free herself before Smith forced her to have intercourse with him. Smith then accompanied M.S. to the shower and instructed her to wash herself off. Smith allowed M.S. to re-dress and reinsert a tampon before he instructed her to lie down on the bed. After she complied, Smith bound her hands and feet with rope before talking to her about his custody battle for his son and giving her a cigarette. He then tied M.S. to the bedframe, put duct tape on her mouth, and left. The court concluded that the rape finished by 1:30 p.m. when Smith left. Smith returned about ten minutes later with his son, and M.S. yelled for help, causing Smith to choke her. Smith and his son left. Sometime before 4:00 p.m., M.S. was able to free herself and ran out of the house. She intercepted a passerby and told him she had been raped. The passerby saw that she was hysterical and had rope tied around her wrists; he helped untie her and called 911. A rape examination kit was performed at the hospital and Smith’s DNA was discovered. Meanwhile, Smith fled to Virginia with his son.

Before trial, counsel had submitted a list of alibi witnesses to the court that included Smith’s son, mother, stepfather, neighbor, and three friends. After learning about the DNA results, counsel withdrew the alibi defense in favor of a consent defense.

At trial, in addition to M.S., several witnesses were called by the prosecution. Smith was the only defense witness to testify. He testified that he and M.S. knew one another and had previously engaged in a sexual relationship, On August 15, 2005, sometime before 1:00 p.m., they had consensual sex. The condom broke, Smith testified, and M.S. became upset and scared. She then asked for an Oxy-Contin pill and, when he wouldn’t give her one, angrily left the house. Smith picked up his son and they ran some errands that included eating lunch at Burger King, stopping at his parents’ and his friend’s houses, and going to two auto-parts stores. As is allowed in Indiana, see Ind. R. Evid. 614, jurors submitted numerous questions to Smith. One juror attempted to verify Smith’s account by asking whether there [800]*800was video surveillance from the Burger King or auto-parts stores. The trial court did not ask this question because it concluded that Smith would not know the answer. Smith was convicted and sentenced.

After an unsuccessful direct appeal, Smith moved for post-conviction relief arguing, as relevant here, that his counsel was ineffective for failing to interview witnesses and call them at trial. At an evi-dentiary hearing on Smith’s petition, Smith’s trial counsel, John Cantrell, testified that he remembered speaking with three witnesses that Smith had suggested to him, but had no recollection of the other seven including Smith’s son, his stepfather, or one of the friends. Counsel stated that he remembered talking to Smith’s mother and concluding that he would not call her because she was “tough and hard” on Smith. He also talked with “two young girls” but determined that they were “lying through their teeth” and a prosecutor would “eat them for breakfast.” He decided not to pursue an alibi defense because a consent defense was more likely to be successful given the DNA test results. Ultimately, counsel concluded that although Smith had several people willing to testify that he was at their homes at various times during the afternoon of August 15, the time period was not relevant for an alibi and the DNA evidence proved Smith had sex with M.S., thus a consent defense was the appropriate strategy.

At the hearing, Smith presented eight witnesses who corroborated his trial testimony about where he was after 1:30 p.m. on August 15. Although Smith and the parties refer to these witnesses as “alibi witnesses,” they are not — they corroborated what Smith said but did not provide an alibi for Smith for the time M.S. said he was raping her. Everyone confirmed that between 1:30 and 3:30 p.m., Smith was running errands with his son.

The post-conviction trial court denied relief and the Indiana Court of Appeals affirmed this decision. Smith, 984 N.E.2d 260, at *7. In reciting the facts gathered at the post-conviction hearing, the court stated in a footnote that Smith’s neighbor testified that Smith picked up his son at 1:30 p.m., that his mother and stepfather testified that they saw Smith at their house at 2:10 or 2:20 p.m., and that “several other witnesses” testified that Smith and his son went to a friend’s house. Id. at *2 n. 3. The court found that “Smith had provided counsel with a list of potential defense witnesses [and counsel] spoke with a number of these witnesses during his investigation,” before concluding that the witnesses lacked credibility or were unhelpful. Id. at *4. The court concluded that counsel made a strategic decision to reject an alibi defense, a belief that the court shared given the circumstances. Id.

Smith petitioned in federal court for a writ of habeas corpus, see 28 U.S.C. § 2254, arguing that his trial counsel was ineffective for not ’ investigating defense witnesses or presenting them at trial. The district court denied his petition and declined to issue a certificate of appealability. This court certified the question of whether Smith’s counsel provided ineffective assistance at trial for withdrawing the alibi defense and failing to produce witnesses. Smith v. Wilson, No. 14-1757 (7th Cir. July 29, 2014).

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623 F. App'x 798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-neal-ca7-2015.