Corey L. Walton v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 21 2018, 9:01 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Jeffrey R. Wright George P. Sherman
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Corey L. Walton, March 21, 2018
Appellant-Petitioner, Court of Appeals Case No.
45A03-1709-PC-2111
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Natalie Bokota,
Appellee-Respondent Magistrate
The Honorable Diane Ross
Boswell, Judge
Trial Court Cause No.
45G03-1606-PC-0004
Vaidik, Chief Judge.
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Case Summary
[1] Corey Walton appeals the denial of his petition for post-conviction relief
challenging his convictions for attempted murder and attempted robbery.
Finding no error, we affirm.
Facts and Procedural History
[2] One afternoon in July 2012, Henry Walker was at a park in Hammond when a
man he didn’t know approached him, pointed a gun at him, and demanded that
he hand over everything he had. After a short struggle, the man shot Walker
twice in the midsection and then fled. In a photographic lineup, Walker
identified Walton as the shooter. The State charged Walton with attempted
murder, attempted robbery, and battery.
[3] While Walton was in jail awaiting trial, two of his friends went to the jail and
spoke with him using the jail’s videoconferencing system. Walton said, “I need
you to do something for me” regarding “this f*** nig** who on my sh**.”
State’s Trial Ex. 10 (file 17198501, starting at 12:04). He then held a document
with Walker’s name and address up to the camera. He continued:
If this nig** show on a G, Cous’, I go to trial, if I get found
guilty, it’s over with my nig**. They tryin’ to hit me with like
thirty, forty years. Cuz you know, I got attempt. Know what
I’m sayin’? So, uh, I wanted you to go, know what I’m sayin’,
go see what’s good and sh** man. I’m just gonna give you this
little address and sh**. Go holler, know what I’m sayin’? . . . I
mean G, cuz if these nig**s show it’s over with, Cous’.
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Id. Walton stated the street address and described its general location before
adding:
If the nig** don’t show [inaudible] they gonna drop my case cuz
they don’t got, they never caught me with sh**, no burner,[1]
nothing. Know what I’m sayin’? Those nig**s don’t got sh** on
me. They just got this, they just got nig**s telling on me.
[Inaudible] and some f*** a** nig**, know what I’m sayin’?
Hey, you blow in his ear.
Id. 2
[4] At trial, Walker was the State’s main witness, and when asked if the shooter
was in the courtroom, he identified Walton. In addition, the State moved to
have the video of the jail visit admitted into evidence. Walton’s attorney
objected on the ground that the video is “so absolutely inflammatory and that
it’s misunderstood, can be, and will likely be misunderstood. He says go holler.
He’s not saying go kill him. He’s saying go holler at this guy.” Trial Tr. p. 61.
She added, “And my client’s position is basically that why is this guy saying
this, that I did this when it wasn’t me.” Id. The trial court overruled the
objection and allowed the video to be played for the jury, finding it to be
“relevant and probative.” Id. at 62.
1
“Burner” is slang for gun. See Trial Tr. p. 178.
2
This is our transcription of the jail video. The State included a similar transcription in its brief, and Walton
does not dispute its accuracy.
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[5] After all evidence was presented, the trial court gave each side ten minutes for
closing argument. The prosecutor argued, among other things, that the video of
the jail visit corroborated Walker’s identification of Walton:
[Y]ou have further information to corroborate that Mr. Walton is
the perpetrator of this crime. You have a video that was played
for you, and the video says certain things. You heard it and you
saw Mr. Walton in that video. You saw Mr. Walton saying that
it was the -- and I’m not going to use the term that he used, but it
was the black guy. You heard Mr. Walton say that -- and hold
up a piece of paper saying that he lived at an address on
Nebraska Street. You heard the victim testify that he lived at an
address on Nebraska Street. You heard Mr. Walton testify -- or
not testify but say in the video that they never found a burner on
him.
You heard the defendant say in that video that they never found
a burner, and you learned what the term burner meant on the
streets. It means a gun. You heard the defendant say that he
lives near that park. Well, you know that this crime occurred in
a park. You have everything that you need to reach a verdict of
guilty on each and every count in this case, and that’s what I’m
asking you to do. Thank you.
Id. at 220-21.
[6] In her argument, Walton’s attorney focused on the absence of various State
witnesses, whether Walker was credible, and whether the photographic lineup
was reliable. Regarding the jail video, she argued that the case “doesn’t boil
down” to “you saw a nasty video so it must have been him.” Id. at 225. She
added that the issue is not whether the jury “like[d] the defendant” but whether
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the State had proven its case. Id. at 227. However, her time ran before she
addressed the video any further, resulting in the following exchange:
COURT: Time, [counsel].
DEFENSE COUNSEL: I’m sorry?
COURT: Time. Ten minutes up.
DEFENSE COUNSEL: I mean, up-up?
COURT: You can summary [sic].
DEFENSE COUNSEL: One quick? Thank you. The video, my
client’s an idiot. My client’s an idiot. I’m not standing here
telling you he’s not a fool --
COURT: [Counsel], that’s not a summary.
DEFENSE COUNSEL: I’m sorry?
COURT: That’s not the -- that’s not summing it up.
DEFENSE COUNSEL: Oh.
COURT: You’re over time. Go ahead. Go ahead.
DEFENSE COUNSEL: Ladies and gentlemen, the bottom line,
and I apologize, the burden has not been met and you should
therefore find my client not guilty of all charges. Thank you.
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COURT: Thank you, [counsel].
Id. at 228.
[7] The jury found Walton guilty as charged. The trial court merged the battery
count into the attempted-murder count and sentenced Walton to concurrent
terms of thirty-five years for attempted murder and attempted robbery. Walton
appealed his convictions, and we affirmed. Walton v. State, No. 45A03-1409-
CR-320 (Ind. Ct. App. Apr. 24, 2015), trans. denied.
[8] In June 2016, Walton filed a petition for post-conviction relief. He initially
included a number of claims but eventually withdrew all of them except one:
that his trial attorney provided ineffective assistance by calling him “an idiot
and a fool,” tying this statement to “a video clip which the State had argued
corroborated the victim’s identification testimony,” and “offering no contrary
interpretation of the video clip th[a]n that advanced by the State of Indiana.”
Appellant’s App. Vol. II p. 76. At the evidentiary hearing on the petition,
Walton’s trial attorney testified as follows about her strategy with regard to the
jail video:
My strategy for dealing with that, it was going to be a difficult
task -- I remember that -- given what appeared on the video. I
was basically going to say my client didn’t have the sense to
realize how what he was doing and saying on that video would
appear to an outside person. I was just going to go with the
strategy that what he was attempting to do was being
misunderstood, that he had other intentions by what he was
doing and saying in that video.
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* * * *
He may be a dummy for doing this, but he meant no harm was
what my strategy was going to be, in terms of how I was going to
speak to the jury.
PCR Tr. pp. 21-23. When asked specifically why she referred to Walton as an
“idiot” and a “fool,” she explained, “I have to be honest, I have prevailed in the
past by not trying to mislead a jury, by being frank with the jury. And my
client, for doing what he did, how he did it, and presenting that impression, was
idiotic and foolish.” Id. at 37.
[9] After the hearing, the post-conviction court denied Walton’s petition,
concluding that calling Walton an idiot and a fool was part of a “reasonable
trial strategy”—to “confront” the jail video, to be “frank” with the jury, and “to
gain the juror’s trust in her argument and to make the point that the defendant’s
video statements, while foolish, did not make him guilty of the underlying
charges.” Appellant’s App. Vol. II pp. 119-20. The court also concluded that,
even if the performance of Walton’s attorney in this respect could be considered
deficient, the evidence against Walton was “overwhelming,” so there is not a
reasonable probability that a better closing argument would have led to a
different result. Id. at 120.
[10] Walton now appeals.
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Discussion and Decision
[11] A person who files a petition for post-conviction relief has the burden of
establishing the grounds for relief by a preponderance of the evidence. Hollowell
v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies
relief, and the petitioner appeals, the petitioner must show that the evidence
leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court. Id. at 269.
[12] Walton contends that the post-conviction court should have granted him relief
on the basis that his trial attorney rendered ineffective assistance. When
evaluating such a claim, Indiana courts apply the two-part test set forth in
Strickland v. Washington, 466 U.S. 668 (1984): whether counsel performed
deficiently and whether that deficient performance prejudiced the defendant.
Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017). An attorney’s performance
is deficient if it falls below an objective standard of reasonableness—if the
attorney committed errors so serious that it cannot be said that the defendant
had “counsel” as guaranteed by the Sixth Amendment. Id. A defendant has
been prejudiced if there is a reasonable probability that the case would have
turned out differently but for counsel’s errors. Id.[13] Regarding the deficient-performance prong, Walton argues that his trial
attorney botched what we will call the “my client is an idiot but that doesn’t
make him a criminal” strategy with regard to the jail video. Specifically,
Walton contends that his attorney executed part one of the strategy—calling
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him “an idiot” and “a fool” for saying the things he said on the video, but then
failed to execute part two—explaining why Walton’s statements, while
seemingly incriminating, do not make him guilty of the crimes charged.
Walton acknowledges the trial court’s role in cutting off the argument, but he
asserts that his attorney could have finished part two if she had done one or
more of the following: (1) moved more quickly throughout her entire closing
argument; (2) asked the court for more time to finish the argument; or (3)
continued with the argument after the court said “Go ahead. Go ahead.” The
State, on the other hand, argues that considering the defense argument as a
whole, “it would have been apparent to the jury that trial counsel was stating
that Walton was foolish for making the statements on the video but that those
statements did not establish that Walton was the person that shot Walker.”
Appellee’s Br. p. 10.
[14] While the manner in which Walton’s attorney ended her argument certainly
wasn’t ideal, we are hesitant to say that her handling of the jail video amounted
to deficient performance. Before things unraveled as time expired, Walton’s
attorney was able to convey to the jury the idea that the case “doesn’t boil
down” to the jail video, “nasty” though it was. She also reminded the jury that
the issue was whether the State had proven its case, not whether the jury
“like[d] the defendant.” It would have been nice if she had wrapped up the
argument at the end; that said, we’re inclined to agree with the State that her
ultimate message—“my client is an idiot but that doesn’t make him a
criminal”—was apparent to the jury.
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[15] In any event, Walton has failed to convince us that there is a reasonable
probability that a different closing argument would have led to a different result,
and that alone is enough for us to affirm the denial of post-conviction relief. See
Baer v. State, 942 N.E.2d 80, 91 (Ind. 2011) (“If we can easily dismiss an
ineffective assistance claim based upon the prejudice prong, we may do so
without addressing whether counsel’s performance was deficient.”), reh’g denied.
Walton does not deny that the video looks very bad for him. Nonetheless, he
insists that the verdict might have been different if his attorney had presented a
contrary “interpretation” of the video. Appellant’s Br. p. 27. He doesn’t tell us
what interpretation might have made a difference, but at trial, Walton’s
attorney said that Walton’s position “is basically that why is this guy saying
this, that I did this when it wasn’t me.” In other words, Walton apparently
believed that the video should have been interpreted as an attempt by him to get
his friends to pay a friendly visit to Walker to have a civilized conversation with
him about how he had the wrong guy—not to kill, hurt, threaten, or otherwise
intimidate him. Having reviewed the video, we believe it is highly unlikely that
the jury would have accepted such an explanation. While Walton never
specifically indicated that he wanted the visit to be hostile, the fact that he
referred to Walker as a “f*** nig**” and a “f*** a** nig**” and told his friends
to “blow in his ear” strongly suggests that Walton wasn’t contemplating a
pleasant encounter. Therefore, any attempt by Walton’s attorney to put a
positive spin on the video surely would have damaged—not bolstered—her
credibility with the jury, and the post-conviction court did not err in concluding
that counsel’s failure to do so prejudiced Walton.
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[16] Walton relies heavily on Christian v. State, 712 N.E.2d 4 (Ind. Ct. App. 1999).
There, a defendant charged with rape testified that the sexual contact between
him and his accuser was consensual and that, in any event, there was no
penetration, which is an element of rape. During closing arguments, however,
defense counsel conceded that penetration had occurred and instead argued
only that it was consensual. We held that counsel’s concession on the
contested issue of penetration—which directly contradicted his client’s own
testimony—constituted ineffective assistance of counsel. Id. at 7.
[17] Walton asserts that his attorney made a concession that was “strikingly similar”
to the one made in Christian. Appellant’s Br. p. 24. We disagree. Unlike the
attorney in Christian, Walton’s trial attorney did not concede any element of a
charged crime. The only thing she conceded was that Walton was an “idiot”
and a “fool” for asking his friends, on a recorded video feed, to “holler” at
Walker and “blow in his ear” in an effort to keep him from testifying against
Walton. Since there is no dispute that this was an incredibly ill-advised thing
for Walton to do, counsel’s concession was nothing like the critical concession
made in Christian.
[18] Affirmed.
May, J., and Altice, J., concur.
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