Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
May 8, 2000
We have jurisdiction over this direct appeal because the sentence exceeds 50 years.
Ind. Const. art. VII, § 4; Ind. Appellate Rule 4 (A)(7).
On June 11, 1998, a jury found Defendant guilty of Murder.
trial court imposed a 65-year sentence.
We will recite additional facts as needed.
Indiana Code § 35-36-7-1 (1993) provides for a continuance upon a proper showing
of an a
bsence of evidence or the illness or absence of the defendant
or a witness. Rulings on non-statutory motions for continuance lie within the
sound discretion of the trial court and will be reversed only for an
abuse of that discretion and resultant prejudice. See Chinn v. State, 511
N.E.2d 1000, 1003 (Ind. 1987) (citing Brown v. State, 448 N.E.2d 10 (Ind.
1983)), rehg denied; see also Little v. State, 501 N.E.2d 447, 449 (Ind.
1986). As we will demonstrate infra, Defendants motion in this case is
of the second type.
Defendant filed his motion for continuance on May 27, 1998, twelve days before
the start of trial. The trial court held a hearing on the
matter the next day to determine whether Defendant was entitled to a third
Among the requests the trial court considered were that Defendant needed
additional time: (1) to hire a forensic expert to analyze a sample of
a palm print taken from the victims home phone and fingerprint samples taken
from the victims dryer;
(2) to analyze copies of shoe print samples; and
(3) for the defense investigator to complete her ongoing investigation. Additionally, Defendant
complained that: (4) he did not receive a final State witness list to
include criminal history checks on its civilian witnesses; and (5) the State had
destroyed his hand-written statement. We will review the trial courts rulings on
each point in turn.
In considering the request for a forensic expert, the trial judge noted that Defendant had been provided ample opportunity to analyze both the palm print information, which had been provided to the defense in September of 1997, and the fingerprint information, which had been provided in February of 1998. While the trial judge refused to grant a continuance, he did grant Defendants request for funds to hire an expert witness after defense counsel acknowledged that he had two people narrowed down to serve as experts, and with the trial nearly two weeks away, he felt that he could have enough time to get the samples and to get someone to look over [them]. We observe that Defendant did not renew his motion for a continuance before trial.
With regard to the shoe print samples, the trial court heard testimony from the pros ecuting attorney that the samples had always been available to the defense for inspection, except when they were being analyzed at the crime laboratory. Moreover, there had not been a request for [the samples] specifically, prior to the continuance hearing. During the hearing, defense counsel did not object to, respond to, or otherwise contradict these statements.
Defendant also claimed that his investigator [was] not done with her investigation, because
there [were] still certain things that she [was] looking into[, . . .
specifically, the n]ames of other potential witnesses. (R. at 195.) The
State responded that with twelve days left until trial, it had not prepared
a final list of witnesses that [it was] absolutely certain that [it was]
going to use, but that it had provided notice of potential witnesses in
discovery, [and thus it] would be limited to those. (R. at 201.)
Defendant has not directed us to a sp
ecific State witness whose testimony
prejudiced him because he was unable to prepare for his or her cross-examination
or was otherwise surprised by the witnesss appearance.
Finally, the trial court considered Defendants allegation that the State had destroyed his handwritten statement or failed to provide him a copy thereof. The record is not exactly clear on this issue, but it appears as though Defendant was arrested in a separate robbery i ncident, during which a K-9 police dog bit him. The State contended that during the course of a stationhouse videotaped interview of Defendant, he wrote some notes about the police dog bit[e]; when he incidentally wiped his blood on the note, a pencil, and a rag, the police were required to destroy these materials as biohazard. The prosecutor went on to state that this evidence was not material in that the note contained no statements relevant to this or any other case, admissions or denials or otherwise.
Defendants position was that he wrote that he wanted an attorney, or something to that effect . . . [e]ven though there [was] a signed waiver stating the opposite. (R. at 208.) In any event, the State made no attempt to introduce the videotaped statement at trial, and Defendant provides no explanation as to how a continuance (i.e., additional time) would have provided him an opportunity to retrieve the alleged evidence that the State acknow ledged no longer existed. Appellants Br. at 16-17.
In sum, we find that the trial court consider[ed] the totality of the circumstances in determining if there was sufficient time to prepare, Carter v. State, 686 N.E.2d 1254, 1261 (Ind. 1997), and gave heed to the diverse interests of the parties when it denied Defendants request for a continuance, Flowers v. State, 654 N.E.2d 1124, 1125 (Ind. 1995) (quoting Vaughn v. State, 590 N.E.2d 134, 135 (Ind. 1992)). The trial court considered Defendants prior access to each piece of evidence and whether the handwritten note was material evidence in this case; it then weighed these considerations against the States potential inability to re-coordinate the travel schedules of various state and federal expert witnesses in the event of a continuance. (R. at 197-98.) Moreover, Defendant has failed to demonstrate how the trial courts ruling prejudiced him. See Vance v. State, 640 N.E.2d 51, 55-56 (Ind. 1994). We find that the trial court did not abuse its discretion in denying Defendants motion for a continuance.
In reviewing a sufficiency of the evidence claim, we neither reweigh the evidence
nor assess the credibility of the witnesses.
Garland v. State, 719 N.E.2d
1236, 1238 (Ind. 1999), rehg denied. Rather we look to the evidence
and reasonable inferences drawn therefrom that support the verdict and will affirm the
convictions if there is probative evidence from which a reasonable jury could have
found the defendant guilty beyond a reasonable doubt. Brown v. State, 720
N.E.2d 1157, 1158 (Ind. 1999); Sanders v. State, 704 N.E.2d 119, 123 (Ind.
1999). A conviction for murder may be based solely on circumstantial evidence.
Vehorn v. State, 717 N.E.2d 869, 875-76 (Ind. 1999). And on appeal,
the circumstantial evidence need not overcome every reasonable hypothesis of innocence. Id.
The evidence supports an inference that Defendant killed Otolski. There was ev idence of a forced entry. Footprints found outside the victims home matched Defendants shoes. Shoes identified as having previously belonged to Defendant were stained with the Otolskis blood. There was also evidence establishing Defendants presence in the Otolskis home: A BB pistol which Defendant admitted taking from his ex-girlfriends home was found in the basement. The pistol was stained with Otolskis blood and also contained hair consistent with Otolskis. Finally, Defendants palm print was found on Otolskis home phone and his fingerprints were found on her dryer.
While the evidence presented by the State is circumstantial, after considering all the evidence most favorable to the verdict as well as drawing all reasonable inferences ther efrom, we find the jury could have reasonably concluded that Defendant broke in Otolskis home and bludgeoned her to death with the pistol.
To prevail on a claim of ineffective assistance of counsel, a defendant must
show that (i) defense counsels representation fell below an objective standard of reasonableness
and (ii) there is a reasonable probability that the result of the proceeding
would have been diffe
rent but for defense counsels inadequate representation. See Cook
v. State, 675 N.E.2d 687, 692 (Ind. 1996) (citing Strickland v. Washington, 466
U.S. 668 (1984); Douglas v. State, 663 N.E.2d 1153, 1154 (Ind.1996)). We
presume that counsels performance was adequate. Id.; Butler v. State, 658 N.E.2d
72, 78 (Ind. 1995).
Defendant presents his ineffective assistance claim as an alternative proposition to his request
for a continuance, such that if defense counsel had sufficient time, prior to
trial, to review the physical evidence presented at trial . . . ,
then his failure to timely procure an e
xpert witness to rebut such evidence
was both deficient and prejudicial. Appellants Br. at 23. We disagree.
A defense counsels poor trial strategy or bad tactics do not necessarily amount
neffective assistance of counsel. See Whitener v. State, 696 N.E.2d 40,
42 (Ind. 1998) (citing Davis v. State, 675 N.E.2d 1097, 1100 (Ind. 1996));
Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998) (identifying that [a] decision
regarding what witnesses to call is a matter of trial strategy which an
appellate court will not second-guess).
In this case, we observe that the trial court first verified that defense
counsel was co
nferring with potential expert witnesses before it granted Defendants pre-trial request
for funds to hire a forensic expert. And after reviewing the testimony
of the States expert witnesses and defense counsels adequate cross-examination, we can only
conclude that defense counsels ultimate decision not to present additional rebuttal expert testimony
was a matter of trial strategy. It is not unreasonable for an
experienced trial lawyer to refrain from presenting additional evidence in the form
of rebuttal testimony that may ultimately be detrimental to his or her
Here, the State presented substantial expert testimony concerning hair, palm print, fingerprint, footprint,
and DNA evidence, involving precise, physical measurements and in some cases, chemical testing.
Defendant has made no showing that the States experts were less than
precise or able in their testing and observations. Moreover, Defendant does not
challenge the accuracy of the States expert testimony nor point to other evidence,
which would have formed the basis for a defense e
xpert witness to challenge
this testimony. We will not second-guess counsels strategic decision to put the
State to its burden, especially without a showing of prejudice. See Rondon v.
State, 711 N.E.2d 506, 518 (Ind. 1999) (At first blush, it would seem
that a trial strategy consisting of nothing more than putting the State to
its burden is an improbable approach to a defense, especially in a capital
case. However, this is precisely the type of decision that falls within
the broad definition of trial strategy.).
SHEPARD, C.J., and DICKSON, BOEHM and RUCKER, J.J., concur.
[Court]: Lets go through now the reasons once again for the request for
a continuance. One is that you wanted to hire a forensic
what kind of expert?
[Defense Counsel]: Fingerprint and palm print, somebody to do an analysis of that.
[Court]: Anything else?
[Defense Counsel]: Also, that expert we may have them review some shoe print evidence and blood evidence as well. But the primary focus that Im looking at is the palm prints that were found in the residence that purportedly match.
* * *
(R. at 191-92.)