Bronco Morgan v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 07 2016, 10:13 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott King Gregory F. Zoeller
Russell W. Brown, Jr. Attorney General of Indiana
Scott King Group
Merrillville, Indiana Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bronco Morgan, April 7, 2016
Appellant-Defendant, Court of Appeals Case No.
20A05-1508-PC-1159
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry Shewmaker,
Appellee-Plaintiff Judge
Trial Court Cause No.
20C01-0903-FA-3
20C01-1203-PC-27
Bailey, Judge.
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Case Summary
[1] Appellant-Petitioner Bronco Morgan (“Morgan”) challenged his conviction of
Attempted Murder in a petition for post-conviction relief and also in a
subsequent motion, on remand from this Court, to set aside the post-conviction
order. He was denied relief and appeals those orders. We affirm.
Issues
[2] Morgan presents two issues for review:
I. Whether he was denied the effective assistance of trial
counsel; and
II. Whether he established a claim of newly-discovered
evidence. 1
Facts and Procedural History
[3] The facts were recited by a panel of this Court on direct appeal as follows:
1
Morgan articulates a third issue (incorporating his presumption that he established the credibility of a
witness recantation), that is, whether his conviction was fundamentally unfair, having been obtained by
perjured testimony. The post-conviction rules contemplate a narrow remedy for subsequent collateral
challenges to convictions. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). The purpose of a petition for
post-conviction relief is to provide petitioners the opportunity to raise issues not known or available at the
time of the original trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). Moreover,
collateral challenges to convictions must be based upon grounds enumerated in the post-conviction rules.
Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006), trans. denied; see also Indiana Post-Conviction
Rule 1(1). To the extent that Morgan attempted to raise a free-standing issue of trial error in the admission of
evidence, this is not a proper issue to be addressed through post-conviction relief apart from his attempt to
establish a claim of newly-discovered evidence. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002).
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During the early morning hours of June 17, 2008, Morgan and
his half-brother, Craig Smith (“Smith”) were at a party at an
apartment building in Elkhart. At some point, Morgan and
Smith became involved in a physical altercation with a person
called “Rat Boy.” (Tr. 400.) Smith held “Rat Boy” against a
wall so that Morgan could strike him. Afterwards, “Rat Boy”
left but announced that he “would be back.” (Tr. 401.) “Rat
Boy” went into one of the nearby apartments and placed a call to
his cousin, Varnell Dixon (“Dixon”).
Dixon arrived shortly thereafter and confronted Smith. Dixon
shoved Smith and Smith struck Dixon in the face. Dixon “pulled
his hand back behind him” and “started shooting.” (Tr. 339.)
Smith was struck and killed by one of the bullets. Dixon fled.
Morgan rushed into an apartment which had a view of the street
in front of the apartment building. Holding a gun, Morgan
looked out the front window and said to Kevin Bush (“Bush”),
“he must have went out the back.” (Tr. 484.) Morgan ran to the
fire escape and emptied his gun. Dixon collapsed on the ground
next to his vehicle.
Morgan returned to Bush’s apartment, handed Bush the gun, and
directed him to dispose of it. Morgan told one of the party guests
that he “got that m----- f-----“ because “he killed his brother.” (Tr.
405.)
Police officers responded to a 9-1-1 call reporting Smith’s death.
During the initial investigation, Officer Jason Ray stepped onto
the fire escape and heard someone gasping for air. His attention
was drawn to a nearby parking lot. Officer Ray shined his
flashlight in the area and found Dixon lying on the pavement,
bleeding from a gunshot wound to his head.
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Morgan was charged with Attempted Murder, and a jury found
him guilty as charged. He was sentenced to fifty years
imprisonment, with one year suspended to probation.
Morgan v. State, No. 20A04-1008-CR-577, slip op. at 2-3 (Ind. Ct. App. Mar. 25,
2011). On appeal, Morgan raised two issues, challenging the admission of
evidence and his sentence. His conviction and sentence were affirmed. See id.[4] On March 13, 2012, Morgan filed a pro-se petition for post-conviction relief.
The petition was later amended with the assistance of counsel, to allege that
Morgan had been denied the effective assistance of trial counsel and also had
newly-discovered evidence. On October 21, 2013, following a hearing at which
a recanting trial witness testified, the petition was denied. Morgan appealed.
[5] During the pendency of the appeal, Morgan filed a petition for remand. He
asserted that he had obtained information that the recanting witness in his case
had been involved in a separate murder investigation, she had recanted
allegations, and the murder charge had been dismissed. Morgan was granted a
dismissal without prejudice and a remand to have the opportunity to develop an
evidentiary record in regard to the murder prosecution. On May 22, 2015,
Morgan filed a motion for relief from judgment, attacking the denial of post-
conviction relief. The post-conviction court conducted an evidentiary hearing
and, on July 17, 2015, again denied Morgan post-conviction relief. This appeal
ensued.
Discussion and Decision
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Standard of Review
[6] The petitioner in a post-conviction proceeding bears the burden of establishing
the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Id. On review, we will not reverse
the judgment of the post-conviction court unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. A post-conviction court’s findings and judgment will
be reversed only upon a showing of clear error, that which leaves us with a
definite and firm conviction that a mistake has been made. Id. In this review,
findings of fact are accepted unless they are clearly erroneous and no deference
is accorded to conclusions of law. Id. The post-conviction court is the sole
judge of the weight of the evidence and the credibility of witnesses. Id.Effectiveness of Trial Counsel
[7] Morgan contends he was denied the effective assistance of trial counsel because
counsel did not interview Michael Casey (“Casey”) or present Casey’s
testimony at trial. Casey, a resident of the building where Dixon was shot,
informally provided security there. He was one of fifty-eight potential witnesses
listed by the State, and he had given a police statement.
[8] Effectiveness of counsel is a mixed question of law and fact. Strickland v.
Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims
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of ineffective assistance under the two-part test announced in Strickland. Id. To
prevail on an ineffective assistance of counsel claim, a defendant must
demonstrate both deficient performance and resulting prejudice. Dobbins v.
State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).
Deficient performance is that which falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d
1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that
“there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.
1996). The two prongs of the Strickland test are separate and independent
inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice … that course
should be followed.” Id.[9] We “strongly presume” that counsel provided adequate assistance and
exercised reasonable professional judgment in all significant decisions. McCary
v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded
considerable discretion in the choice of strategy and tactics. Timberlake v. State,
753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the
facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d
1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring
reasonable professional judgment even if the strategy in hindsight did not serve
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the defendant’s interests. Id. In sum, trial strategy is not subject to attack
through an ineffective assistance of counsel claim, unless the strategy is so
deficient or unreasonable as to fall outside the objective standard of
reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
[10] “As a general proposition, the decision whether to call a particular witness is
encompassed within the attorney’s trial strategy.” Osborne v. State, 481 N.E.2d
376, 380 (Ind. 1985). Absent a clear showing of injury and prejudice, an
appellate court will not declare counsel ineffective for failure to call a witness.
Id.[11] Morgan claims that his trial counsel failed to identify, interview, and subpoena
Casey, an “eyewitness to the crime.” (Appellant’s Br. at 6.) However, in his
post-conviction testimony, Casey made no claim that he had seen the shooting
of Dixon. Rather, he testified that he had seen a person other than Morgan run
downstairs with a gun tucked up his sleeve; that he had not seen Morgan armed
with a gun; and that he had heard no more shots after Morgan exited the fire
escape. According to Casey, he had given police a statement denying that he
had seen Morgan with a gun. This was contradicted by the post-conviction
testimony of Elkhart Police Captain Cris Seymore, who testified that Casey did
not even mention Morgan’s name in his police interview. As such, it is not
clear that Casey had made any pretrial statement tending toward exculpation of
Morgan. At most, he had claimed not to have seen Morgan with a gun.
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[12] On the other hand, defense counsel presented the trial testimony of a claimed
eyewitness, Maurice Starkey (“Starkey”). Starkey testified that he was, at the
time of Dixon’s shooting, a roommate of Bush. Starkey testified that he had a
“good view” and saw Bush fire “maybe six shots” at Dixon, but he had not
initially realized that Dixon had been struck. (Trial Tr. at 430, 643.) According
to Starkey, he took his hysterical girlfriend back to Chicago and while there he
first heard that there had actually been a fatal shooting and a non-fatal shooting.
Not wanting to be labeled a “snitch,” he did not contact police. (Trial Tr. at
647.)
[13] In closing argument, defense counsel then invited the jury to conclude that
Bush, not Morgan, shot Dixon. That version of events was rejected by the jury.
Trial counsel’s efforts and strategy, although they did not ultimately achieve the
result desired by Morgan, were not so unreasonable as to constitute ineffective
assistance of counsel. See Badelle v. State, 754 N.E.2d 510, 539 (Ind. Ct. App.
2001) (deciding in relevant part that, when trial counsel’s efforts were “more
than adequate” to support a chosen defense, counsel’s decision not to seek out
additional witnesses was a judgment call within the wide range of reasonable
assistance), trans. denied.
[14] Morgan did not make a “clear showing of injury and prejudice,” such that trial
counsel may be considered ineffective for failure to call Casey as a witness.
Osborne, 481 N.E.2d at 380.
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Newly Discovered Evidence
[15] Indiana Post-Conviction Rule 1(1)(a)(4) provides that one who has been
convicted of a crime may seek post-conviction relief to assert a claim “that there
exists evidence of material facts, not previously presented and heard, that
requires vacation of the conviction or sentence in the interest of justice.”
[16] A new trial on the basis of newly-discovered evidence is to be granted only
when nine requirements are demonstrated: (1) the evidence has been
discovered since the trial; (2) it is material and relevant; (3) it is not cumulative;
(4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due
diligence was used to discover it in time for trial; (7) the evidence is worthy of
credit; (8) it can be produced upon a retrial of the case; and (9) it will probably
produce a different result at retrial. Bunch v. State, 964 N.E.2d 274, 283 (Ind.
Ct. App. 2012), trans. denied.
[17] At Morgan’s trial, Dorothy Rogers (“Rogers”) testified for the State. She
testified that she had gone to the apartment building where the shootings
occurred in order to purchase drugs. Rogers further testified that Morgan “was
shooting,” from his position on the ground while others on the fire escape were
“running trying to get away from the bullets.” (Trial Tr. at 404, 409.)
According to Rogers, Morgan later told her that he had shot “that m----- f----
[who had] killed his brother.” (Trial Tr. at 405.) Rogers testified that she had
then made contact with police and indicated “that she had something she felt
like she needed to say.” (Trial Tr. at 406.)
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[18] By the time of the post-conviction hearing, Rogers asserted that she had an
improved memory and desired to recant her trial testimony. When she was an
active user of crack cocaine, Rogers had felt intimidated or harassed by the
police. Now sober, she claimed that her trial testimony against Morgan had
been coerced and was false. In her post-conviction testimony, Rogers explicitly
denied that she saw Morgan shooting. Thus, Rogers provided testimony in
impeachment of her trial testimony.
[19] In her recantation testimony, Rogers’ responses were selective. She claimed to
recall details of the shooting but at the same time claimed to be unable to recall
the substance of either her trial testimony or statement to police. She did not
recall approaching the police. She could not recall whether her statements and
trial testimony were consistent. The post-conviction court found that Rogers’
recantation was not worthy of credit.
[20] In general, whether a post-conviction witness’s testimony is worthy of credit is a
factual determination to be made by the trial judge who has the opportunity to
see and hear the witness testify. Bunch, 964 N.E.2d at 292. It is not within the
province of the appellate court to replace a trial judge’s assessment of credibility
with its own. Id. We thus accept the determination of the post-conviction court
that Rogers’ post-conviction testimony is not worthy of credit. Morgan did not
establish the nine prerequisites for a new trial on the basis of newly-discovered
evidence.
Conclusion
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[21] Morgan was not denied the effective assistance of trial counsel. He did not
show entitlement to a new trial on a claim of newly-discovered evidence.
Accordingly, the post-conviction court properly denied the petition for post-
conviction relief.
[22] Affirmed.
Bradford, J., and Altice, J., concur.
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