James Watkins v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 06 2015, 11:09 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
James Watkins Gregory F. Zoeller
Michigan City, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Watkins, November 6, 2015
Appellant-Petitioner, Court of Appeals Case No.
49A04-1410-PC-482
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Respondent. Judge
Trial Court Cause No.
49G01-9910-PC-171334
Najam, Judge.
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Statement of the Case
[1] James Watkins appeals the post-conviction court’s denial of his petition for
post-conviction relief. Watkins raises the following two issues for our review:
1. Whether his trial counsel rendered ineffective assistance
when he failed to object to the admission of certain
evidence.
2. Whether his appellate counsel rendered ineffective
assistance when she did not raise on direct appeal an issue
with respect to a purported error in the jury instructions.
[2] We affirm.
Facts and Procedural History
[3] The facts underlying Watkins’ convictions and sentence were stated by this
court in his direct appeal:
Jimmy Anderson (“Anderson”) and Cara Edwards (“Edwards”)
lived together at the Wingate Village Apartments. Anderson sold
marijuana to friends and neighbors [who] lived in the apartment
complex. On the morning of September 15, 1999, Edwards left
for work and locked the deadbolt to her apartment with her key,
while Anderson remained asleep in bed. At 11:14 that morning
Edwards called Anderson and told him that she was going to
come home during her lunch hour and smoke a joint. Minutes
later, Star Easley (“Easley”), who lived in a neighboring
apartment, saw three men leave Anderson and Edwards’
apartment building. Phone calls placed to Anderson’s apartment
between 11:38 a.m. and 11:45 a.m. went unanswered. Edwards
and two of her co-workers clocked out of work at 11:45 and
drove to her apartment. When they arrived several minutes later
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at the apartment Edwards unlocked the dead-bolted door and
found Anderson dead on the floor. Anderson’s gold chain, his
wallet with $250.00, his keys, and two ounces of marijuana were
gone.
One of the individuals to whom Anderson had previously sold
marijuana was Watkins’ brother, neighbor Ezra Watkins
(“Ezra”). Ezra lived in an apartment building situated
perpendicular to that of Anderson and Edwards. Easley
identified Ezra and Watkins as two of the three men that she saw
leaving Edwards’ apartment that day.
Anderson died as a result of five stab wounds to his neck. The
wounds were caused by a knife with a blade length of four to five
inches and a width of ¾ of an inch. A knife matching this
description was found in Watkins’ apartment. The stab wounds
to Anderson’s neck cut through his carotid artery and into the
cartilage of his larynx. No defensive wounds were found on
Anderson’s body.
Watkins told police that he had never been inside Anderson’s
apartment[;] however[,] Watkins’ right palm print was
discovered on the south foyer wall near Anderson’s body. The
State charged Watkins with Felony Murder, Murder, and
Robbery as an A felony. The jury found Watkins guilty as
charged. The trial court, noting double jeopardy concerns,
entered a judgment of conviction against Watkins for Murder
and Robbery as a class B felony. . . .
Watkins v. State, 766 N.E.2d 18, 20-21 (Ind. Ct. App. 2002) (footnote omitted),
trans. denied (“Watkins I”).
[4] In his direct appeal, Watkins, by counsel, raised three issues for our review.
Specifically, Watkins argued that his convictions were not supported by
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sufficient evidence; that his convictions violated the Indiana Double Jeopardy
Clause; and that the prosecutor had committed misconduct during the jury trial.
We rejected each of these arguments and affirmed Watkins’ convictions. Id. at
20.
[5] On May 18, 2010, Watkins filed his petition for post-conviction relief. In his
petition, Watkins alleged, in relevant part, fundamental error in the admission
of evidence and in the instructions to the jury. Watkins further alleged that the
same errors resulted in, respectively, the ineffective assistance of trial and
appellate counsel. On April 15, 2014, the post-conviction court held an
evidentiary hearing on Watkins’ petition. Thereafter, the court entered findings
of fact and conclusions of law in which it denied the petition. This appeal
ensued.
Discussion and Decision
Standard of Review
[6] Watkins appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review in such appeals is clear:
[The petitioner] bore the burden of establishing the grounds for
post[-]conviction relief by a preponderance of the evidence. See
Ind. Post-Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d
591, 597 (Ind. 2001). Post-conviction procedures do not afford a
petitioner with a super-appeal, and not all issues are available.
Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral
challenges to convictions must be based on grounds enumerated
in the post-conviction rules. Id. If an issue was known and
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available, but not raised on direct appeal, it is waived. Id. If it
was raised on appeal, but decided adversely, it is res judicata. Id.
In reviewing the judgment of a post-conviction court, appellate
courts consider only the evidence and reasonable inferences
supporting the post-conviction court’s judgment. Hall v. State,
849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is
the sole judge of the evidence and the credibility of the witnesses.
Id. at 468-69. Because he is now appealing from a negative
judgment, to the extent his appeal turns on factual issues [the
petitioner] must convince this court that the evidence as a whole
leads unerringly and unmistakably to a decision opposite that
reached by the post-conviction court. See Timberlake, 753 N.E.2d
at 597. We will disturb the decision only if the evidence is
without conflict and leads only to a conclusion contrary to the
result of the post-conviction court. Id.
Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.
[7] On appeal, Watkins argues that his trial counsel rendered ineffective assistance
when he failed to object to the State’s admission of a demonstrative knife that
matched the murder weapon and was found in a residence frequently visited by
Watkins. Watkins also argues that his appellate counsel rendered ineffective
assistance when she did not raise an issue with respect to a purportedly
erroneous jury instruction on direct appeal. Generally, a claim of ineffective
assistance of counsel must satisfy two components. Strickland v. Washington,
466 U.S. 668 (1984). First, the criminal 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
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criminal defendant must show prejudice: a reasonable probability (i.e., a
probability sufficient to undermine confidence in the outcome) that, but for
counsel’s errors, the result of the proceeding would have been different. Id. at
694. We address each of Watkins’ issues on appeal in turn.1
Issue One: Trial Counsel
[8] Watkins asserts that his trial counsel rendered ineffective assistance when he
failed to object to the State’s admission of Exhibit 51. This exhibit, a knife that
had been retrieved from a residence frequently visited by Watkins and that
matched the dimensions of the murder weapon, was admitted not as “the
murder weapon” but, rather, only as demonstrative evidence. As such, at the
evidentiary hearing on Watkins’ post-conviction petition, his trial counsel
testified as follows:
Q . . . [D]o you think you felt at the time that [the knife] was
admissible?
A I may have, but it’s been too long. I may have thought[,]
if I object, it will be overruled. I may have thought it doesn’t
hurt . . . . That was my feeling going in, that this knife was a red
1
Throughout his brief on appeal, Watkins makes references to allegedly “fundamental” errors and various
rights under the Indiana Constitution. E.g., Appellant’s Br. at 4. Freestanding claims of fundamental error
are not available for post-conviction review. Lindsey, 888 N.E.2d at 325. As such, we do not consider those
claims. And Watkins’ purported arguments under the Indiana Constitution are not supported by cogent
reasoning or citation to authority. See Ind. Appellate Rule 46(A)(8)(a). Thus, we also do not consider those
assertions.
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herring. That wasn’t what was going to convict James. The bloody
print and the eyewitness was going to convict James.
***
. . . To me it had no impact. It wasn’t germane. It wasn’t
persuasive in my mind to anything. Here’s a knife that we found.
No serology, no blood, no DNA, no fingerprints . . . so I’m
thinking so what?
***
Q Did you consider objecting to the implication without any
foundation that that could have been the murder weapon?
A I don’t recall if I thought about objecting, but I adhere to
the rule that simply because you can object doesn’t mean that
you should. We’re in the middle of final, and when you object in final,
sometimes you run the risk of highlighting to the jury what you don’t
want them to consider.
P-C Tr. at 14-17 (emphases added).
[9] Thus, the decision of Watkins’ trial counsel to not object to the admission of
State’s Exhibit 51 was a matter of trial strategy. “[W]e do not second-guess
strategic decisions requiring reasonable professional judgment even if the
strategy or tactic, in hindsight, did not best serve the defendant’s interests.”
State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997). But that is what Watkins
invites us to do now; he asks that we second-guess his trial counsel’s strategic
decision to not draw emphasis to evidence counsel had concluded to be a red
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herring. We will not second-guess this decision. As such, Watkins cannot
show that the post-conviction court’s conclusion that he did not receive
ineffective assistance of trial counsel is clearly erroneous.
Issue Two: Appellate Counsel
[10] Watkins next asserts that he received ineffective assistance from his appellate
counsel when she failed to raise on direct appeal an issue with respect to a
purportedly erroneous jury instruction. “Ineffectiveness is very rarely found in
these cases.” Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997) (quotations and
alteration omitted).
One reason for this is that the decision of what issues to raise is
one of the most important strategic decisions to be made by
appellate counsel. Experienced advocates since time beyond
memory have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one central issue if
possible, or at most a few key issues. . . . Accordingly, when
assessing these types of ineffectiveness claims, reviewing courts
should be particularly deferential to counsel’s strategic decision
to exclude certain issues in favor of others, unless such a decision
was unquestionably unreasonable.
Id. at 193-94 (quotations and citations omitted).
[11] Here, Watkins argues that the jury instruction on accomplice liability was
erroneous because it failed to inform the jury that, to be liable as an accomplice,
the State had to prove that Watkins “engaged in voluntary conduct in concert
with his accomplice.” Appellant’s Br. at 14. As such, Watkins continues, his
appellate counsel rendered ineffective assistance when she failed to raise the
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erroneous jury instruction on direct appeal. Instead, Watkins’ appellate counsel
challenged the sufficiency of the evidence, whether Watkins’ convictions
violated double jeopardy, and whether the prosecutor committed misconduct.
[12] The jury-instruction issue was not a clearly stronger issue than the issues raised
by Watkins’ counsel on direct appeal. Watkins’ trial counsel did not object to
the jury instructions on the grounds Watkins now asserts them to have been
erroneous. Trial Tr. at 830. As such, had Watkins’ appellate counsel raised
this issue on direct appeal, the likely result would have been for this court to
simply note that the issue had not been preserved for review. Thus, Watkins
cannot demonstrate that the post-conviction court’s conclusion that he did not
receive ineffective assistance from his appellate counsel is clearly erroneous,
and we affirm the post-conviction court’s judgment.
[13] Affirmed.
Kirsch, J., and Barnes, J., concur.
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