ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cecelia J. McGregor Jeffrey A. Modisett
Post Office Box 296 Attorney General of Indiana
Goshen, Indiana 46527-0296
Suzann W. Lupton
Deputy Attorney General
Office of the Attorney General
Indiana Government Center South
402 W. Washington Street, Fifth Floor
Indianapolis, Indiana 46204
INDIANA SUPREME COURT
MICHAEL WHITENER, ) ) Indiana Supreme Court Appellant (Defendant Below ), ) Cause No. 20S00-9607-CR-477 ) v. ) ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
__________________________________________________________ APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable Gene R. Duffin, Judge Cause No. 20C01-9508-CF-043
Defendant Michael Whitener was found guilty of murder and attempted murder. The trial court sentenced defendant to serve consecutive sentences of sixty years for the murder conviction and forty-five years for the attempted murder conviction. The sentences were also to be served consecutively to a sentence imposed earlier in another court. Defendant now challenges his conviction in this direct appeal. Defendant raises one issue: whether he received ineffective assistance of trial counsel. We hold that he received effective assistance of counsel and affirm the trial court.
Jermell Williams and Delvecchio Hawkins then flagged down a car with two white men in it who
were looking to buy some crack cocaine. After the car stopped, Williams reached into the car and
pulled the keys out of the ignition. At that point, defendant began shooting into the car. One of
the men in the car died from gunshot wounds, and the other was hit but survived.
Defendant also testified at trial. Defendant testified that, after Simms refused to supply a gun, Michael Hawkins raised his shirt and showed everybody that he had a gun. Delvecchio Hawkins then left the group to flag down a car he had seen with two white men in it. When Delvecchio returned with the news that he had stopped the car, defendant told Delvecchio they should not shoot the two men but should, instead, rob and beat them. When the others wanted to follow the original plan and shoot the two men, defendant left the group and walked away.
During opening statements, the State argued to the jury that it would prove defendant was the individual who shot into the car. During closing statements, the State argued that, even if the jury could not find that defendant was the shooter, the jury could still convict him under Ind. Code § 35-41-2-4 because he had aided or induced the others in the commission of the crime.See footnote 1 The jury found defendant guilty of murder and attempted murder.
assistance of counsel. The argument can be narrowed to three specific allegations. First,
defendant contends that he received ineffective assistance when his counsel had him testify.
Second, defendant contends that he received ineffective assistance when his counsel failed to
tender jury instructions concerning the defense of abandonment. Third, defendant contends that
he received ineffective assistance when his counsel failed to object to the State's use of the aiding
or inducing statute.
To prevail on an ineffective assistance of counsel claim, a defendant must prove both parts of the two part test as set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Matheney v. State, 688 N.E.2d 883, 897 (Ind. 1997) reh'g denied (March 31, 1998). First, the defendant must prove that his counsel's performance fell below an objective standard of reasonableness. Second, the defendant must show that the substandard performance was so prejudicial as to deny him a fair trial. A defendant is denied a fair trial only when the conviction occurs as the result of a breakdown in the adversarial process which renders the trial result unreliable. Potter v. State, 684 N.E.2d 1127, 1131 (Ind. 1997). Isolated poor strategy or bad tactics do not necessarily amount to ineffective assistance of counsel. Davis v. State, 675 N.E.2d 1097, 1100 (Ind. 1996).
Defendant's first contention is that he received ineffective assistance when his counsel had him testify. In its opening argument, the State argued that it would prove defendant shot the victims. In its closing argument, the State argued that the jury could find defendant guilty either because he was the shooter or because he aided or induced the crime. Defendant contends that the State would not have been able to change its theory of the crime if he had not been called to testify.
The determination of whether or not a defendant should testify is a matter of trial strategy.
Anderson v. State, 565 N.E.2d 336, 338 (Ind. 1991). Counsel's decision to have defendant
testify was not unreasonable and cannot satisfy the performance prong of the test. This Court will
not lightly speculate as to what may or may not have been an advantageous trial strategy as
counsel should be given deference in choosing a trial strategy which, at the time and under the
circumstances, seems best. See Potter, 684 N.E.2d at 1133. By the end of the State's case, four
witnesses had identified defendant as the shooter. Two eyewitnesses testified that they had seen
defendant shoot into the car and a third testified that he believed that "it had to be [defendant]."
(R. at 437.) The fourth witness testified that, during a later conversation, defendant admitted to
being the shooter. Defendant claims that he left the group before the shooting occurred. The
only apparent way for defendant to present this evidence was through his own testimony.
Defendant's second contention is that he received ineffective assistance when his counsel failed to tender jury instructions on an abandonment defense. Defendant testified that he initiated the idea of shooting for revenge. He further testified that he then tried to dissuade the others from shooting the men and, when that failed, he left the group before the shooting. Defendant argues that this constitutes the defense of abandonment under Ind. Code § 35-41-3-10See footnote 2 and that he received ineffective assistance because his counsel never instructed the jury on this defense.
Counsel was not ineffective in this respect. First, defendant cannot meet the performance
prong. The decision of whether or not to present a defense can be considered a matter of trial strategy and will not be lightly second guessed. See Potter, 684 N.E.2d at 1133; Davis, 675 N.E.2d at 1101. In the present case, trial counsel could, perhaps, have pursued an abandonment defense.See footnote 3 Trial counsel could also have chosen, as he did, to attack the underlying theory of aiding or inducing the commission of the crime. During his closing argument, counsel read the instruction on aiding or inducing and read the instruction informing the jury that it is their duty to
interpret the law as given them by the judge. Counsel then argued to the jury why it should not
agree with the State's theory that defendant aided or induced this crime. Counsel argued that the
aiding or inducing statute was intended for those who are integrally involved in the crime, not for
one who "merely talks about something, and then later talks against it." (R. at 568.)
Even assuming that defendant meets the performance prong on this issue, we do not believe that defendant can meet the prejudice prong. Throughout the trial, counsel continuously attacked every element of the State's case, including the credibility of the witnesses, the actual sequence of events, and the State's theory of aiding or inducing. The two conflicting stories, with all of their strengths and weaknesses, were presented to the jury. Defendant received a fair and reliable trial through the adversary process.
Defendant's third contention is that he received ineffective assistance when his counsel failed to object to the State's change of theory and to the prosecutor's repeated mention of the aiding or inducing theory of guilt. Before a defendant can show that his counsel's failure to object constitutes deficient performance, the defendant must be able to show that the objection would have been sustained. See Potter, 684 N.E.2d at 1134. Defendant cannot meet this standard on either of his contentions. First, although it has become common practice to put the defendant on notice that he is being charged under the aiding and inducing statute, a defendant may be convicted on evidence of aiding or inducing even though the State charged the defendant as the principal. See Thacker v. State, 556 N.E.2d 1315, 1322 (Ind. 1990); Lawson v. State, 274 Ind. 419, 412 N.E.2d 759, 763 (1980). Therefore, the trial court would not have sustained an objection, had one been made, to the State's change of theory. Second, the State is entitled to argue the facts and the law which the facts support. See Potter, 684 N.E.2d at 1134. Thus, the
court would not have sustained any objections to the prosecutor's repeated reference to the aiding
or inducing statute.
SHEPARD, C.J., and DICKSON, SULLIVAN, and BOEHM, J.J., concur.
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