ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Cynthia Maricle Russell Monika Prekopa Talbot
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
SUPREME COURT OF INDIANA
ORLANDO MARTIN, ) ) Appellant (Defendant Below ), ) No. 45S05-0106-PC-282 ) In the Supreme Court v. ) ) No. 45A05-0009-PC-379 STATE OF INDIANA, ) In the Court of Appeals ) Appellee (Plaintiff Below ). )
January 4, 2002
In his post-conviction relief petition, Orlando Martin alleges ineffective assistance of counsel because his appellate attorney mentioned, but did not brief, a claim that the trial court improperly gave the jury an instruction after deliberations had begun. Concluding that this error neither constituted deficient performance nor prejudiced Martins case, we affirm the denial of post-conviction relief.
Martin enlisted the help of LaTanya Means in finding Stewart. After Means
located Stewart, Martins friend Elston Pickford, Martin, and Stewart drove to a wooded
area. According to Pickfords testimony, Martin forced Stewart into the
woods at gunpoint. Pickford heard a scream, followed by two shots.
Martin then returned from the woods and told Pickford that he had only
shot Stewart in the leg and that he could crawl home.
In settling on final instructions during Martins trial, the court initially declined to
instruct on aiding and abetting, believing it would be too confusing to the
jury. About three hours into deliberations, the jury came back with a
question about the liability of an accomplice.
See footnote Over Martins objection, the judge
gave the jury an additional instruction on accomplice liability. The jury later
found Martin guilty of murder, and the court sentenced him to forty years
The current litigation flows from the brief filed in Martins direct appeal.
Martins appellate lawyer asserted in the section of his brief summarizing the arguments
that the trial courts instruction on accomplice liability was improper, but he did
not address the issue in the section of the brief laying out each
argument in full.
Martin v. State, 636 N.E.2d 1268, 1270 n.2 (Ind.
Ct. App. 1994); (P-C.R. at 84-101). The Court of Appeals ruled that
Martin had waived this issue because he failed to cite authority in support
of his contention. Martin, 636 N.E.2d at 1270 n.2 (citing Ind. Appellate
See footnote It rejected his other allegations of error and affirmed
the trial court.
Martin filed a petition for post-conviction relief, alleging that the trial court committed
fundamental error by giving the jury a supplemental instruction and that his assistance
from appellate counsel was constitutionally deficient. The Court of Appeals reversed the
post-conviction courts denial of the petition, holding that Martins appellate representation was both
deficient and prejudicial.
Martin v. State, 744 N.E.2d 574, 579 (Ind. Ct.
App. 2001). We accepted transfer and now affirm the post-conviction courts denial
Post-conviction relief is not a substitute for a direct appeal. Ind. Post-Conviction
Rule 1, §1(b). Post-conviction procedures create a narrow remedy for subsequent collateral
challenges to convictions. Benefiel v. State, 716 N.E.2d 906 (Ind. 1999).
Freestanding claims that the original trial court committed error are available only on
direct appeal. See Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001).
To avoid waiver, Martin argues that the trial court committed fundamental error.
(Appellants Br. at 12.) To qualify for review under this exception, a
claim of error must be so prejudicial to the rights of a defendant
as to make a fair trial impossible. Barany v. State, 658 N.E.2d
60, 64 (Ind. 1995).
As we recently held in Carter v. State, 754 N.E.2d 877, 881 (Ind.
2001), An appellate court receiving contentions of fundamental error need only expound upon
those it thinks warrant relief. It is otherwise adequate to note that
the claim has not been preserved. The Court of Appeals was
thus right simply to note that Martins claim about the additional instruction was
To establish a violation of the Sixth Amendment right to effective assistance of
appellate counsel, Martin must establish the two elements set forth in Strickland v.
Washington, 466 U.S. 668 (1984). First, appellate counsels performance must be shown
to be deficient, meaning the counsels representation fell below an objective standard of
reasonableness. Id. at 687-88; Prowell v. State, 741 N.E.2d 704, 712 (Ind.
2001). Second, Martin must show that the deficient performance actually prejudiced his
defense. See Strickland, 466 U.S. at 687. In other words, the
prejudice-prong of Strickland requires Martin to demonstrate a reasonable probability that, but for
his counsels errors, the result of his direct appeal would have been different.
See id. at 694.
The question is not whether the trial court was correct in providing the
jury with a supplemental instruction on aiding and abetting. Instead, the appropriate
question on petition for post-conviction relief is whether appellate counsels performance, viewed in
its entirety, denied Martin his Sixth Amendment right to counsel. Bieghler v.
State, 690 N.E.2d 188, 193-94 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998)
(citing Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994)). Thus, Martin
must demonstrate that, taken as a whole, his appellate counsels performance fell outside
the wide range of professionally competent assistance. Id.
Counsel is afforded considerable discretion in choosing strategy and tactics. Perez v.
State, 748 N.E.2d 853, 854 (Ind. 2001) (citing Strickland, 466 U.S. at 689).
We strongly presume that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Id. Even when
failure to argue a potential claim is not a matter of conscious strategy,
isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily
render representation ineffective. See Bieghler, 690 N.E.2d at 199; Ingram v. State,
508 N.E.2d 805, 808 (Ind. 1987) (citation omitted).
In appellate briefs, arguments are listed in three sections: (1) issues presented for review, (2) summary of the argument, and (3) argument. See App. R. 46(A)(4),(7),(8). Martins counsel listed the supplemental instruction argument only in the second section. (P-C.R. at 84-100.) Because the issue was listed in the summary of the argument section, Martin alleges that his appellate counsel was ineffective for not fully arguing the supplemental instruction issue in the appellate brief. Another possibility is that Martins counsel simply chose to drop this argument because it was the weakest issue but failed to remove it from the summary section. It is certainly plausible that counsel chose to abandon this argument rather than simply failed to address it. See footnote
Martins claim that this single omission overcomes the strong presumption of adequate assistance is unconvincing in light of the entirety of Martins appellate lawyers performance. Counsel advanced three respectable issues on direct appeal: (1) the admissibility of weapons owned by Martin, (2) the admissibility of expert testimony regarding the identification of the victims skeletal remains, and (3) the trial courts denial of a new trial following discovery of new evidence. See Martin, 636 N.E.2d at 1270-73. Even assuming Martins appellate counsel erroneously omitted the argument, this single, isolated mistake did not render representation ineffective. As we discuss more fully below, the instruction issue would not have been stronger than the three issues actually raised.
We are also satisfied that appellate counsels failure to argue the supplemental instruction
worked little prejudice. As we stated earlier, Martin must demonstrate under the
prejudice prong of Strickland that there is a reasonable probability that the result
of his direct appeal would have been different. See Strickland, 466 U.S.
at 494. Had this issue been presented on direct appeal, it would
have been rejected.
The generally accepted procedure in answering a jury's question on a matter of
law is to reread all instructions in order to avoid emphasizing any particular
point and not to qualify, modify, or explain its instructions in any way.
Riley v. State, 711 N.E.2d 489, 493 (Ind. 1999) (citing Wallace v.
State, 426 N.E.2d 34, 36-37 (Ind. 1981)). However, we have permitted
departure from this procedure when a trial court is faced with an omitted
and necessary instruction or must correct an erroneous instruction, as long as it
is "fair to the parties in the sense that it should not reflect
the judge's view of factual matters." Id. (quoting Jenkins v. State, 424
N.E.2d 1002, 1003 (Ind. 1981)). Thus, "when the jury question coincides with
an error or legal lacuna [i.e., gap] in the final instructions . .
. a response other than rereading from the body of final instructions is
permissible." Jenkins, 424 N.E.2d at 1003.
Given the facts of this case, an instruction on aiding and abetting was
unnecessary. Neither Means nor Pickford was on trial with Martin, and there
was no evidence that Martin assisted another. It is hard to surmise
why the jury asked for instruction on this issue, but they were apparently
interested enough in the relative guilt of those who assisted in the murder
that they felt the need to ask the judge about it. Still,
the evidence presented at trial was overwhelming. There was no identification problem,
and all the evidence pointed to Martin as the murderer. (See P-C.R.
at 71, 78-79.)
In short, Martins appellate lawyer raised three respectable issues on appeal
and omitted an issue that we likely would have rejected. Even if
this nudged the lawyers performance outside the range of reasonableness, we think it
clear the outcome of the appeal would have been the same.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.