ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Anne-Marie Alward Christopher L. Lafuse
Deputy Public Defender Deputy Attorney General
Indianapolis, IN Indianapolis, IN
SUPREME COURT OF INDIANA
BRIAN K. MCCARY, )
Appellant (Defendant Below ), ) No. 49S02-0105-PC-00240
) In the Supreme Court
) No. 49A02-0004-PC-226
STATE OF INDIANA, ) In the Court of Appeals
Appellee (Plaintiff Below ). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patricia J. Gifford, Judge
Cause No. 49G04-9309-CF-121825
January 18, 2002
SHEPARD, Chief Justice.
Facts and Procedural History
Appellant Brian McCary, who is serving a forty-year sentence for attempting to kill
a police officer, asks for a new trial. He contends that his
trial counsel was ineffective, but that question has already been litigated and is
res judicata against him. His claim that his appellate counsel was ineffective
is without merit. We affirm the denial of post-conviction relief.
On the evening of September 20, 1993, Indianapolis Police Department Officer Anthony Finnell
was told at roll call to be on the lookout for a particular
blue and white Oldsmobile. As he began patrolling, Officer Finnell spotted the
car parked at a convenience store in the vicinity of East 30th Street
and North Sherman Drive. He watched as McCary and Antonio Williams entered
the car and drove away.
After following them for a short distance, Officer Finnell pulled the vehicle over.
McCary jumped from the car while it was still moving and ran
off. Finnell called for backup and began to handcuff Williams.
Finnell then heard gunshots coming from the spot where he had last seen
McCary. He dropped behind the Oldsmobile for protection, pulling Williams down as
well. After six shots were fired, Finnell drew his gun and looked
over the car. A man with a similar build and clothing to
McCarys looked at Finnell and fled.
McCary ran to a nearby friends house. There, McCary said that he
had been followed by police, leapt from his car, and exchanged gunfire after
the police fired first.
The police apprehended McCary as he left the friends house in a speeding
car. McCary lied about his identity, but Williams was brought to the
arrest scene and positively identified McCary as the driver of the Oldsmobile.
Later that night at the police station, McCary told Officer Finnell, I wasnt
trying to hurt you. (T.R. at 229.)
A jury found McCary guilty of attempted murder, a class A felony;
See footnote resisting
law enforcement, a class D felony;See footnote and carrying an unlicensed handgun, a class
A misdemeanor.See footnote The court sentenced him to concurrent terms, with forty years
on the lead charge.
McCary raised three claims on direct appeal, including ineffective assistance of trial counsel.
McCary v. State, No. 49A02-9412-CR-751, memo. op. at 2 (Ind.
Ct. App. Nov. 6, 1995). The Court of Appeals affirmed the conviction.
In his post-conviction challenge, McCary focuses on ineffective assistance of trial and appellate
counsel. (Appellants Br. at 11-12.) The post-conviction court rejected both claims.
The Court of Appeals held for McCary on both and reversed.
McCary v. State, 739 N.E.2d 193, 201 (Ind. Ct. App. 2000). We
granted transfer, and now affirm the post-conviction court.
Post-Conviction Standard of Review
A post-conviction procedure is not an opportunity for a super-appeal. Ben-Yisrayl v.
State, 729 N.E.2d 102, 105 (Ind. 2000), cert. denied, 122 S. Ct. 73
(2001). A petitioner who has been denied post-conviction relief appeals from a
negative judgment, and he must convince the appellate court that the evidence as
a whole leads unerringly and unmistakably to a decision opposite that reached by
the post-conviction court. Prowell v. State, 741 N.E.2d 704 (Ind. 2001).
In other words, [t]his Court will disturb a post-conviction courts decision as being
contrary to law only where the evidence is without conflict and leads to
but one conclusion, and the post-conviction court has reached the opposite conclusion.
Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert. denied, 528 U.S.
1083 (2000) (citations omitted).
The High Hurdle for Ineffective Assistance Claims
A claim of ineffective assistance of counsel must satisfy two components. Strickland
v. Washington, 466 U.S. 668 (1984); accord Williams v. Taylor, 529 U.S. 362,
390-91 (2000). First, the defendant must show deficient performance: representation that fell
below an objective standard of reasonableness, committing errors so serious that the defendant
did not have the counsel guaranteed by the Sixth Amendment. Id. at
687-88. Second, the defendant must show prejudice: a reasonable probability (i.e.
a probability sufficient to undermine confidence in the outcome) that, but for counsels
errors, the result of the proceeding would have been different. Id. at
Few points of law are as clearly established as the principle that [t]actical
or strategic decisions will not support a claim of ineffective assistance. Sparks
v. State, 499 N.E.2d 738, 739 (Ind. 1986). We afford great deference
to counsels discretion to choose strategy and tactics, and strongly presume that counsel
provided adequate assistance and exercised reasonable professional judgment in all significant decisions.
See Strickland, 466 U.S. at 689-90.
Even the best and brightest criminal defense attorneys may disagree on ideal strategy
or the most effective approach in any given case. Id. at 689.
Furthermore, [i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective. Timberlake v. State, 753 N.E.2d 591, 603
(Ind. 2001) (citing Bieghler v. State, 690 N.E.2d 188, 199 (Ind. 1997), cert.
denied, 525 U.S. 1021 (1998)).
Effectiveness of Trial Counsel
McCary argued on direct appeal that his trial counsel was constitutionally ineffective.
McCary, memo. op. at 6. His argument failed. Id. at 11.
He raises this same issue again in his petition for post-conviction relief.
(Appellants Br. at 1.)
It has long been the rule that a defendant who raises a claim
of ineffective assistance of trial counsel on direct appeal is foreclosed from subsequently
relitigating that claim. Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998),
cert. denied, 528 U.S. 861 (1999). See also Sawyer v. State, 679
N.E.2d 1328, 1329 (Ind. 1997)([The defendant], having once litigated his Sixth Amendment claim
concerning ineffective assistance of counsel, is not entitled to litigate it again, by
alleging different grounds.); Morris v. State, 466 N.E.2d 13, 14 (Ind. 1984)(Notwithstanding the
fact that petitioner gave several additional examples of his counsels alleged ineffectiveness during
the post-conviction hearing, a consideration of the ineffectiveness issue would constitute review of
an issue already decided on direct appeal.).
McCarys claim of ineffective assistance of trial counsel is res judicata.
II. Effectiveness of Appellate Counsel
McCary next asserts that his appellate counsel was ineffective for raising the issue
of ineffective assistance of trial counsel on direct appeal. McCarys trial counsel
did not call Officer Tracey Murphy as a witness. (T.R. at iii-vii.)
McCary asserts that his appellate counsels failure to develop a record to
show what the officer would have testified to . . . doom[ed] the
claim to failure and depriv[ed] McCary of an effective appeal. (Appellants Br.
This argument stems from the probable cause affidavit, which was available to both
trial and appellate counsel. It stated that Officer Murphy, who was at
home and off duty, heard shots and chased but then lost the suspect.
(T.R. at 21.) McCarys defense was that he did indeed flee
the police, but did not shoot. (P-C.R. at 255-64.)
McCarys appellate lawyer suggested that the man Officer Murphy saw was most likely
Aaron Blanche, whom the defense had portrayed at trial as the probable shooter.
(P-C.R. at 208-09, 259, 261.) The Court of Appeals rejected this
argument as speculative, though it turned out to be correct.
Timberlake, 753 N.E.2d at 604, we described the burden a party must
establish for a claim of this type:
When the claim of ineffective assistance is directed at appellate counsel for failing
fully and properly to raise and support a claim of ineffective assistance of
trial counsel, a defendant faces a compound burden on postconviction. The postconviction
court must conclude that appellate counsels performance was deficient and that, but for
the deficiency of appellate counsel, trial counsels performance would have been found deficient
and prejudicial. Thus, Timberlakes burden before the postconviction court was to establish
the two elements of ineffective assistance of counsel separately as to both trial
and appellate counsel.
Id. (citing Ben-Yisrayl v. State, 738 N.E.2d 253, 261-62 (Ind. 2000)).
Of course, we review appellate counsels effort in its totality when considering whether
a defendant received constitutionally adequate assistance. Bieghler, 690 N.E.2d at 194.
The forty-three-page brief filed for McCarys appeal raised three major issues: sufficiency
of the evidence, improper communication between the court and jury in McCarys absence,
and ineffective assistance of counsel. (P-C.R. at 172-214.)
Under the heading of ineffective assistance, appellate counsel argued that trial counsel was
deficient in three respects: by (1) failing to conduct an adequate investigation, (2)
failing to interview and call certain witnesses, and (3) failing to respond properly
to the communications between the court and jury during jury deliberations. (P-C.R.
at 286.) Appellate counsel also argued that another attorney specially appointed to
represent McCary during a hearing on a pro se motion to correct error
See footnote (P-C.R. at 205, 289.)
The heart of McCarys claim about his appellate lawyer is that counsel should
not have raised the issue of trial counsels ineffective assistance during the direct
appeal because insufficient facts were available about Officer Murphy to make the claim.
The brief from that appeal, however, contradicts this argument:
Consideration of the affidavit for probable cause yields further concern with regard to
witnesses who were not summoned. The affidavit states that an Officer Murphy
who lives in the area heard the shots, came out of his home,
and gave chase to the suspect, losing him in the area of 2800
North Gale. We know from McCary, Castle and Tamara Johnson that her
address was 3053 North Olney north of 30
th Street. We also
know that McCarys flight began in the alley east of Sherman and just
a few doors south of 30th Street, technically in the 2900 block.
We also know that Aaron Blanche had been in the area, had a
gun and turned up; shortly after the shooting, at LaToya Harrisons house at
2835 North Gale near the middle of the block where Officer Murphy was
said to have lost the suspect he was chasing the area of
2800 Gale near 28th and Gale. The result of this analysis is
the question Why didnt Murphy testify? His testimony, it would seem, would
have made clear, when taken with other evidence that was heard by the
jury, that it was improbable that the person Murphy saw was McCary and,
at the same time, more probable than not that the person was Aaron
Blanche, a man we know had a gun.
On the record available here, we cannot know why Murphy did not testify
nor why the matter was not raised on cross of the police witnesses
with knowledge of this case.
(Appellants Br. at 6-7) (internal citations omitted). McCarys appellate lawyer thus had
a fair amount of evidence available on Murphys encounter.
The record also demonstrated to McCarys appellate lawyer the considerable effort trial counsel
made in pointing to Blanche as the perpetrator. For instance, the defense
called Latoya Harrison, who lived near the site of the attempted murder.
(T.R. at 424.) She testified that Blanche arrived on her doorstep that
night, scared and covered with burrs as if he had just run through
bushes or a field. (T.R. at 425-26.) Blanche used Harrisons telephone
twice, and Blanche gave Harrisons friend a handgun to keep for him until
he picked it up early the following morning. (T.R. at 426-29.)
Thus, the only fact about Officer Murphy that was not available when the
appellate lawyer chose to argue trial counsels ineffective assistance was Officer Murphys confirmation
during the post-conviction proceedings that it was Blanche whom he had seen.
This was, of course, a concrete piece of additional information. But even
McCarys trial counsel, testifying with the benefit of hindsight during the post-conviction proceeding,
thought it had so little probative value that he might not have called
Officer Murphy even if he had known it was Blanche Officer Murphy had
The post-conviction court found that appellate counsels performance did not deprive McCary of
effective assistance of counsel on direct appeal. The facts in this record
do not point unerringly to the opposite conclusion, the standard required for relief.
We affirm the denial of post-conviction relief.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
Ind. Code Ann. §§ 35-41-5-1, 35-42-1-1 (1998).
Footnote: Ind. Code Ann. § 35-44-3-3(b)(1) (West 1998).
Footnote: Ind. Code Ann. § 35-47-2-23(c) (West 1998).
The Court of Appeals said:
McCary has failed to set forth the prospective results of a more thorough
investigation. McCary speculates as to what certain witnesses may have said if
they had been interviewed and acknowledges that [p]erhaps trial counsel interviewed these witnesses
and found nothing, so elected not to explore the matter, but perhaps he
did not. On the record available here, we cannot know. Having
failed to demonstrate what a more thorough investigation would have revealed, McCary has
failed to establish that he suffered prejudice as a result of the allegedly
inadequate investigation, and his claim of ineffective assistance of counsel in this regard
is without merit.
McCary contends that trial counsel rendered ineffective assistance in failing to call certain
witnesses at trial. Beyond mere speculation, McCary has not set forth favorable
testimony that would have been elicited from persons who were not called as
witnesses. Therefore, as with the first allegation of ineffective assistance, McCary has
not demonstrated that he was prejudiced by the charged defects.
McCary, memo. op. at 7 (internal citations omitted). At the post-conviction proceeding,
Officer Murphy verified that the man he saw with a gun that night
was, indeed, Blanche. (P-C.R. at 141, 144, 153.)
In the motion, McCary claimed that the prosecution should have disclosed the
results of a police-administered gunshot residue test, but the only evidence of such
a test was McCarys own word, which was not enough. (P-C.R. at
McCarys trial attorney testified at the post-conviction proceeding as follows:
Did you interview Officer Murphy?
Had you discovered that Officer Murphy had seen a suspect coming from the
field in the alley with a gun and that he could identify that
person and that that person wasnt McCary, is it fair to say you
would have called him as a defense witness?
Would you explain your answer?
Why? Its 30
th and Sherman and a guy was found with a
gun only in the general area. I mean, how many guns do
you think are there in that area. I dont know that theres
Okay. Had you known that Officer Murphy could identify Mr. Blanche as
the individual that he saw in the alley, would that change your answer?
Well I think [McCary] testified that th[ere] might have been a guy who
had a gun in the area and so we presented it that way.
Yes. So is it fair to say that if your clients position
its not me, its Mr. Blanche and you have a police officer whos
willing to say he saw Mr. Blanche with a gun running from the
field in the alley matching the description, are you telling this Judge that
you would not have called Officer Murphy as a defense witness?
Im saying it didnt make that much difference.
Im saying it didnt make that much difference.
[MCCARYS ATTORNEY]: Okay. Thats all I have.
CROSS-EXAMINATION, QUESTIONS BY [STATE]:
Mr. Rose, that last answer suggests to me -- please correct me if
Im wrong, that you concluded as a matter of strategy or tactics that
there was no solid value in pursuing Officer Murphy as a witness?
Is it a fair statement that you assessed his value as simply one
who could say he saw some other individual with a gun in the
same general geographic area as the incident your client was charged with?
You did make argument on that matter and bring light to that matter
at trial in this cause, did you not?
(P-C.R. at 160-62.) Even knowing that Murphy had seen Blanche did not
impress McCarys trial counsel.