Servan Allen v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Apr 30 2015, 9:50 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Servan Allen Gregory F. Zoeller
Michigan City, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Servan Allen, April 30, 2015
Appellant-Petitioner, Court of Appeals Case No.
79A04-1405-PC-228
v. Appeal from the
Tippecanoe Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Respondent. Judge
Cause No. 79D01-1003-PC-1
Kirsch, Judge.
[1] Servan Allen (“Allen”) appeals the denial of his petition for post-conviction
relief (“PCR”) from his conviction for conspiracy to deal in cocaine as a Class
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A felony.1 Allen raises six issues on appeal, which we consolidate and restate
as:
I. Whether the PCR court erred in finding that he was not denied
effective assistance of counsel based on his trial counsel’s failure to
object to a potentially inappropriate statement during the State’s
closing argument and failure to secure evidence that he was in Chicago
until several hours before he was arrested;
II. Whether the PCR court erred in finding that he was not denied
effective assistance of counsel based on his appellate counsel’s failure
to argue that a recording of a phone conversation and the transcript of
that recording were not properly authenticated; and
III. Whether Allen was denied effective assistance of counsel at his
PCR hearing because of his PCR counsel’s failure to call his Chicago
attorney and his appellate counsel.
[2] We affirm
Facts and Procedural History
[3] In October 2007, Officer Jason Walters (“Officer Walters”) of the Lafayette
Police Department called a phone number given to him by his Sergeant in an
attempt to set up an undercover crack cocaine buy. He spoke with two men,
later identified as Myron James (“James”) and Allen. Officer Walters was told
where to go and was instructed to call back when he arrived. After arriving at
the location specified by Allen, Officer Walters called the number again and
informed James he had arrived. Sparkle Bennett (“Bennett”) emerged from a
1
See Ind. Code § 35-41-5-2 (conspiracy) and Ind. Code § 35-48-4-1 (dealing in cocaine). We note that,
effective July 1, 2014, new versions of these criminal statutes were enacted. Because Allen committed his
crime prior to July 1, 2014, we will apply the statutes in effect at that time.
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nearby apartment and met Officer Walters. Officer Walters gave Bennett
money, and she gave him a small bag of crack cocaine. Bennett was
immediately arrested.
[4] The police obtained a search warrant for the apartment and discovered more
than 50 grams of crack-cocaine inside the apartment’s toilet. Police arrested
James, Allen, and a third man, Bryon Simmons. The police found $2,980 in
cash in Allen’s pockets.
[5] The three men were each charged with dealing in cocaine and possession of
cocaine, both as Class A felonies, conspiracy to commit dealing in cocaine as a
Class B felony, and obstruction of justice as a Class D felony. The trials for the
three defendants were consolidated.
[6] At trial, the State moved to admit into evidence a recording of the phone
conversation between Allen and Officer Walters and a transcript of that
recording. To authenticate the audio recording itself, the State relied on
testimony from Bennett that at the time the phone conversation took place, her
daughter was crying and that she recognized the crying child heard on the
recording as her daughter. In addition, Bennett testified that she recognized the
voices of both Allen and James and that the transcript was a complete and
accurate transcript of the recorded phone conversation. Allen’s counsel
objected to the introduction of both the recording and the transcript on the
grounds that they had not been properly authenticated. He argued that only a
party to the original conversation could properly authenticate the recording
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and, subsequently, the transcript. Both were admitted over objection. Officer
Walters later testified that he made the recording of the phone conversation
himself.
[7] During Bennett’s testimony, she stated that all three men—including Allen—
were at her apartment the entire weekend leading up to their arrest. In an
attempt to undermine Bennett’s credibility, Allen’s counsel called Allen’s
girlfriend to the stand to testify that Allen was in traffic court in Chicago on the
morning of the day he was arrested.
[8] During closing arguments, the prosecutor told the jury they should believe
Bennett’s testimony over the testimony of the defendants because if she lied, she
would go to prison for five years. This statement was based on Bennett’s
testimony that the terms of her plea agreement required her to tell the truth on
the witness stand, and that, if she lied, the agreement would be off, she would
go to prison for up to 20 years, and she would lose custody of her daughter.
Allen’s trial counsel did not object to this statement. After the conclusion of the
trial, Allen was found guilty of conspiracy to commit dealing in cocaine as a
Class A felony and was acquitted of the remaining charges.
[9] On appeal, Allen’s appellate counsel raised five issues, including sufficiency of
the evidence, appropriateness of the sentence, and various evidentiary issues.
This court affirmed Allen’s conviction. Allen v. State, 79A02-0809-CR-798 (Ind.
Ct. App. March 26, 2009).
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[10] Subsequently, Allen filed a petition for post-conviction relief alleging ineffective
assistance of trial and appellate counsel. At the hearing, Allen’s trial counsel
testified that the decision not to introduce evidence supporting Allen’s claim
that he was in Chicago on the morning of his arrest was a strategic decision
given the existence of evidence that the cocaine sold may have come from
Chicago. Allen’s PCR counsel did not call Allen’s Chicago traffic court counsel
as a witness, and the only evidence presented to support Allen’s claim was a
non-certified document stating that Allen was in Chicago three days before his
arrest. Allen’s PCR counsel did not call Allen’s appellate counsel to testify at
the PCR hearing. The PCR court concluded that Allen’s trial counsel and
appellate counsel were not ineffective and denied Allen’s petition.
Discussion and Decision
[11] Post-conviction relief does not afford a petitioner with a super appeal. Garrett v.
State, 992 N.E.2d 710, 718 (Ind. 2013). Rather, it provides “a narrow remedy
to raise issues that were not known at the time of the original trial or were
unavailable on direct appeal.” Id. In a PCR proceeding, the petitioner bears the
burden of establishing his claim by a preponderance of the evidence. Ind. Post-
Conviction Rule 1(5).
[12] To establish a PCR claim alleging ineffective assistance of trial or appellate
counsel, a defendant must establish two components enumerated by the
Supreme Court of the United States in Strickland v. Washington: first, that
counsel’s performance was deficient, and second, that the deficient performance
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prejudiced the defense. Garrett, 992 N.E.2d at 718 (citing Strickland v.
Washington, 466 U.S. 668 (1984)), Bieghler v. State, 690 N.E.2d 188 at 192 (Ind.
1997). To establish deficient performance, the petitioner must show that
counsel’s representation fell below an objective standard of reasonableness and
made errors “so serious that counsel did not function as ‘counsel’ [as]
guaranteed by the Sixth Amendment.” Id. To establish prejudice resulting
from the deficient performance, the petitioner must show that there is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. A reasonable probability is one
that is “sufficient to undermine confidence in the outcome.” Id.[13] When appealing the denial of a PCR petition, the petitioner stands in the
position of one appealing from a negative judgment. Garrett, 992 N.E.2d at 718.
Therefore, in order to prevail upon his appeal from the denial of post-conviction
relief, the petitioner must show that the evidence as a whole leads unerringly
and unmistakably to a conclusion opposite that reached by the PCR court. Id.
I. Ineffective Assistance of Trial Counsel
[14] Allen contends that the PCR court erred when it denied relief based on trial
counsel’s failure to object to a statement made by the prosecutor at trial.
During closing arguments, the prosecutor stated “Sparkle Bennett told you that
if she lied, she would not only be charged with perjury, but she would go to
prison for five years. She has to tell the truth by the terms of her plea
agreement. If she lies, she’s gonna go to prison.” Tr. at 367. At the PCR
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hearing, Allen argued that this was improper vouching and that his trial
counsel’s failure to object to the statement constituted a deficient performance
that prejudiced the defense. We disagree.
[15] A prosecutor may comment on the credibility of a witness as long as the
assertions are based on reasons which arise from the evidence. Cooper v. State,
854 N.E.2d 831, 836 (Ind. 2006). Here, Bennett had testified during trial that if
she lied, she would go to prison, and had she not taken the plea agreement she
would face up to twenty years. Tr. at 157. Accordingly, the prosecutor’s
statement was based on the evidence presented at trial and was not improper
vouching, and trial counsel’s failure to object to the statement did not constitute
deficient performance.
[16] Allen also contends that his trial counsel was ineffective because of his failure to
introduce evidence that Allen was in traffic court in Chicago earlier in the day
on the date he was arrested; thus, it would undermine Bennett’s testimony that
Allen had been in her apartment all weekend.
[17] At the PCR hearing, Allen’s trial counsel testified that, while he initially
intended to secure that evidence, his ultimate decision not to do so was a
strategic decision because “there was some drug trafficking involved here from
Chicago and [he] wasn’t sure that evidence of [Allen] being in Chicago . . . was
necessarily going . . . to make the jury very happy.” PCR at 20.
[18] Counsel’s decision was reasonable, and reasonable strategic decisions do not
support a finding of ineffectiveness. Stevens v. State, 770 N.E.2d 739 (Ind. 2002).
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II. Ineffective Assistance of Appellate Counsel
[19] Allen also contends that his appellate counsel was ineffective based on failure to
argue that a recording of a phone conversation between Allen and Officer
Walters was not properly authenticated. At trial, Allen’s trial counsel objected
to the admission of the recording because Bennett—the witness through whom
the State attempted to admit the evidence—was not a party to the conversation
and was not able to testify whether the recording was accurate.
[20] As an initial matter, we note that Allen’s appellate counsel was not called to
testify at the PCR hearing. Absent such testimony, we cannot determine that
the decision not to raise the issue was not a reasonable strategic choice.
Moreover, we cannot say that any deficiency prejudiced Allen’s appeal.
[21] The prosecutor admitted the audio recording over objection through the
testimony of Bennett. Tr. at 157. Bennett identified Allen as the man speaking
to the undercover police officer. Id. at 158. Further, Bennett testified that she
heard on the recording her baby crying and that she recognized that outburst as
one that occurred during the conversation between Allen and Officer Walters.
Id. at 159. Allen contends that the recording should not have been admitted
because, not being a party to the conversation, Bennett was unable to properly
authenticate it.
[22] There was no prejudice to Allen from the admission of the recording during
Bennett’s testimony. Officer Walters was the next witness called, and he
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testified that the recording was of the conversation he had with Allen and that
he made the recording himself. Tr. at 226.
[23] Allen also argues that the transcript of the conversation was likewise not
properly authenticated. To be properly authenticated, the party attempting to
admit evidence “must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.” Ind. Evid. R. 901(a). To satisfy this
requirement, the proponent may introduce “testimony that an item is what it is
claimed to be, by a witness with knowledge.” Ind. Evid. R. 901(b)(1). Bennett
testified that she recognized the transcripts, that she had listened to the
recording, and that the transcripts were a complete and accurate transcript of
the recording. Tr. at 159. Because she knew the contents of the recording, she
had knowledge to identify the transcript as being what it purported to be: a
transcript of that recording. Thus, the transcript was properly authenticated.
III. Ineffective Assistance of PCR Counsel
[24] Finally, Allen argues that his PCR counsel was ineffective for failing to call his
Chicago attorney and appellate counsel.
[25] Our Supreme Court has held the rigorous standard set forth in Strickland does
not apply to claims of ineffectiveness of PCR counsel and that PCR counsel is
not ineffective where counsel appeared and represented petitioner in a
procedurally fair setting which resulted in a judgment of the court. Baum v.
State, 533 N.E.2d 1200 (Ind. 1989). Counsel’s decision to pursue issues
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different than those petitioner would like is a strategic decision which does not
render counsel ineffective. Matheny v. State, 834 N.E.2d 658 (Ind. 2005).
[26] Here, Allen’s PCR attorney appeared at the PCR hearing, examined trial
counsel and entered several exhibits and the trial record into evidence. Allen
has failed to show that his PCR counsel was ineffective.
[27] Affirmed.
Friedlander, J., and Crone, J., concur.
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