John D. May v. State of Indiana ( 2013 )

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
Dec 27 2013, 7:15 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
VICKIE YASER KARL M. SCHARNBERG
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN D. MAY, )
)
Appellant-Petitioner, )
)
vs. ) No. 28A05-1307-PC-320
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE GREENE CIRCUIT COURT
The Honorable Erik C. Allen, Judge
Cause No. 28C01-1201-PC-1
December 27, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
John D. May was convicted of possession of methamphetamine while in
possession of a firearm, a Class C felony, following a jury trial. On direct appeal, this
court affirmed his conviction. See May v. State, No. 28A01-0409-CR-397 (Ind. Ct. App.
February 28, 2005) (“May I”). May subsequently petitioned for post-conviction relief,
which the post-conviction court denied. He now appeals, challenging the post-conviction
court’s judgment, and he raises a single issue for our review, namely, whether he was
denied the effective assistance of trial counsel.
We affirm.
FACTS AND PROCEDURAL HISTORY
In May I, we set out the facts and procedural history as follows:
The facts most favorable to the judgment demonstrate that on May 12,
2003, Amy Honchell, Justin May (Justin), and John D. May (May) were at
the home of Justin and May’s grandmother, Donna May (Donna). Justin
and May were brothers and had been raised by Donna since they were
infants. Honchell was Justin’s girlfriend.
Gerald Ray (Gerald), Donna’s son and Justin and May’s uncle, was
also at Donna’s house on May 12th. An argument ensued between Gerald
and May wherein Gerald told May to stop threatening Donna and to remove
May’s methamphetamine lab from Donna’s house. During the argument,
Justin hit Gerald with a guitar and May beat Gerald with a shotgun. Gerald
eventually escaped to a neighbor’s house and the neighbor called the police.
When Gerald returned to Donna’s house, May, Justin, and Honchell were
gone.
When Gerald and his nephews began arguing, Honchell left the
house and waited in her car. Justin and May eventually came out of the
house and Honchell saw May carrying a gun and a brown bag. Justin
requested the car keys from Honchell, Honchell gave the keys to Justin,
May placed the bag in the trunk, and then May got into the back seat with
the gun. Honchell drove the group to a friend’s house in Coalmont,
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Indiana. At the time, May informed Honchell he did not want the bag at his
grandmother’s house because he thought Gerald would call the cops on
him. After spending a few hours in Coalmont, Honchell drove May and
Justin back to her apartment.
While Honchell, Justin, and May were driving to Coalmont, the
police were arriving at Donna’s house in response to the neighbor’s phone
call. Donna requested that the police search her home because she believed
Justin and May might be keeping drugs at her house. Police searched the
premises and located equipment to manufacture methamphetamine and a
recipe for its manufacture in May’s bedroom.
As police were investigating the battery case, Honchell, Justin, and
May decided to drive uptown, and in doing so drove by Donna’s house.
Upon identification of Honchell’s car, Officer Paul Clark initiated a traffic
stop and searched the car with Honchell’s consent. Officers found a gun in
the backseat at May’s feet and the brown bag in the trunk, inside of which
was methamphetamine.
On August 8, 2003, the State charged May with two felony counts:
(1) Count I, manufacturing methamphetamine; and (2) Count II,
simultaneously possessing methamphetamine and a firearm. A jury trial
took place April 22, 2004. The jury acquitted May on Count I but found
him guilty on Count II. The trial court sentenced May to eight years, to be
served consecutive[ to] the sentences in two other matters.
On direct appeal, May asserted that the evidence was insufficient to support his
conviction. Specifically, May claimed that the State failed to demonstrate that he
constructively possessed the methamphetamine because the bag containing the
methamphetamine had been locked in Honchell’s trunk and he did not have control over
it. We rejected May’s contention and affirmed his conviction.
May raised several issues in his petition for post-conviction relief. The post-
conviction court denied his petition following a hearing. This appeal ensued.
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DISCUSSION AND DECISION
The petitioner bears the burden of establishing his grounds for post-conviction
relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Harrison v.
State, 707 N.E.2d 767, 773 (Ind. 1999), cert. denied, 529 U.S. 1088 (2000). To the extent
the post-conviction court denied relief in the instant case, May appeals from a negative
judgment and faces the rigorous burden of showing that the evidence as a whole “‘leads
unerringly and unmistakably to a conclusion opposite to that reached by the [] court.’”
See Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999) (quoting Weatherford v. State,
619 N.E.2d 915, 917 (Ind. 1993)), cert. denied, 529 U.S. 1113 (2000). It is only where
the evidence is without conflict and leads to but one conclusion, and the post-conviction
court has reached the opposite conclusion, that its decision will be disturbed as contrary
to law. Bivins v. State, 735 N.E.2d 1116, 1121 (Ind. 2000).
May’s sole contention on appeal is that he was denied the effective assistance of
trial counsel.1 There is a strong presumption that counsel rendered effective assistance
and made all significant decisions in the exercise of reasonable professional judgment,
and the burden falls on the defendant to overcome that presumption. Gibson v. State, 709
N.E.2d 11, 13 (Ind. Ct. App. 1999), trans. denied. To make a successful ineffective
assistance claim, a defendant must show that: (1) his attorney’s performance fell below
an objective standard of reasonableness as determined by prevailing professional norms;
and (2) the lack of reasonable representation prejudiced him. Mays v. State, 719 N.E.2d
1May does not appeal the post-conviction court’s resolution of the other issues raised in his post-
conviction petition.
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1263, 1265 (Ind. Ct. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)), trans. denied.
Deficient performance is representation that fell below an objective standard of
reasonableness by the commission of errors so serious that the defendant did not have the
“counsel” guaranteed by the Sixth Amendment. Roberts v. State, 894 N.E.2d 1018, 1030
(Ind. Ct. App. 2008), trans. denied. Consequently, our inquiry focuses on counsel’s
actions while mindful that isolated mistakes, poor strategy, inexperience, and instances of
bad judgment do not necessarily render counsel’s representation ineffective. Id. Even if
a defendant establishes that his attorney’s acts or omissions were outside the wide range
of competent professional assistance, he must also establish that, but for counsel’s errors,
there is a reasonable probability that the result of the proceeding would have been
different. See Steele v. State, 536 N.E.2d 292, 293 (Ind. 1989).
Here, May contends that his trial counsel, James Riester, did not adequately
impeach Honchell using her allegedly inconsistent statements regarding when and how
she knew that there was anhydrous ammonia in the trunk of her car. 2 In particular, May
points out that, during her deposition, Honchell initially testified that she did not know
prior to the officers’ search of her car that there was anhydrous ammonia in the trunk.
But when she was subsequently asked about the factual basis for her guilty plea, she
2
In his post-conviction petition, May also contended that his trial counsel’s performance was
deficient in that he did not question Honchell about several packages of ephedrine or pseudoephedrine
officers found in plain view in her apartment. But May does not address that contention in the argument
section of his brief on appeal other than a passing remark in the concluding paragraph of that section,
namely, a vague reference to the jury’s failure to hear about Honchell’s “apartment’s use to store key
ingredients[.]” Appellant’s Brief at 20. But May references this contention more extensively in his reply
brief. To the extent May intended to raise this issue on appeal, the issue is waived. See Ind. Appellate
Rule 46(C).
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explained that she had seen Justin place a jar of anhydrous ammonia in the trunk of her
car a few days prior to the search. Then, at trial, Honchell testified that no one had had
access to the trunk of her car for one week prior to the officers’ search. And while she
initially testified that she did not know what was in the brown bag in the trunk prior to the
officers’s search, when she was subsequently asked to explain her guilty plea to the jury
she stated that, between the time they had left the house and the officers’ search of her
car, Justin had told her that there was anhydrous ammonia in the brown bag.
In other words, May contends that Riester was ineffective in that he did not
question Honchell regarding her inconsistent statements “about how she knew she was
illegally transporting anhydrous ammonia in such a way that diverted attention away
from a recent act committed by her boyfriend, in which she was complicit, that was
similar to the charge against John,” and her “lie[] when she told the jury no one had
accessed her trunk or put anything else in her trunk in the days leading up to the search of
her vehicle[.]” Reply Brief at 1. May maintains that “[t]here is more than a reasonable
probability that[,] had the jury heard” about these inconsistencies in Honchell’s story,
“they would not have voted to convict John May of putting a bag containing
methamphetamine in the trunk of her car.” Appellant’s Brief at 20. We cannot agree.
Our supreme court has held that the method of impeaching witnesses is a tactical
decision and a matter of trial strategy that does not amount to ineffective assistance.
Kubsch v. State, 934 N.E.2d 1138, 1151 (Ind. 2010). In Kubsch, the defendant asserted
in his petition for post-conviction relief that his trial counsel “rendered deficient
performance for not using all available evidence” to impeach a key witness, including
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evidence “of a theft conviction and a false report of a rape” made by the witness. Id. Our
supreme court rejected that contention, pointing out that defense counsel had impeached
the witness’ credibility using other means. Id. And in Bivins v. State, 735 N.E.2d 1116,
1134 (Ind. 2000), our supreme court rejected a similar argument and held that:
While there were inconsistencies between some of the out-of-court and in-
court statements and between the in-court testimony of these two witnesses
that might have been useful for impeachment purposes, counsel is
permitted to make reasonable judgments in strategy. See Olson v. State,
563 N.E.2d 565, 568 (Ind. 1990) and Fugate v. State, 608 N.E.2d 1370,
1373 (Ind. 1993) (each holding that the method of impeaching witnesses
was a tactical decision, a matter of trial strategy, and did not amount to
ineffective assistance of counsel). Here, trial counsel repeatedly placed the
credibility of Chambers and Weyls into question. In opening argument,
trial counsel vigorously raised its “the deal with the squeal” theme,
emphasizing the fact that Chambers entered into a favorable plea agreement
and that both Chambers and Weyls were granted use-immunity. As
discussed supra, counsel repeatedly attacked the credibility of Chambers
and Weyls using the plea agreements, the use-immunity arrangements, and
their prior convictions. The post-conviction court’s findings support its
conclusion that counsel’s cross-examination of Chambers and Weyls was
not deficient within the meaning of the first prong of the Strickland test
and, as such, Bivins was not denied the effective assistance of counsel to
which he was entitled.
(Emphasis added).
Here, at the post-conviction hearing, Riester testified in relevant part as follows:
Q: Would you, what would be your reason for not ensuring that the jury
knew that Amy testified at trial that the only reason she knew about what
was in the trunk was because Justin had told her that John put a bag with
anhydrous [ammonia] in it, as opposed to what she told you at her
deposition that Justin had put a jar of anhydrous [ammonia] in the car three
days earlier?
A: I believe her testimony at trial concerned what she, she [sic] was
testifying about a jar that was in the bag. Because Justin told her that there
was a bag of or there was a jar of anhydrous [ammonia] in the bag is I
believe what she testified to at trial. That’s not inconsistent with her saying
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to Justin [sic] had put a different jar in the trunk of the car three days
earlier.
Q: So you didn’t [sic].
A: Which I think they were talking about two different jars.
Q: You didn’t see that as helpful to the defense that Justin had put a jar
of anhydrous [ammonia] in the car three days before?
A: Well, I think the issue was, what was in the bag and who put it there.
The real issue was, I don’t think there was any discrepancies, was any
controversy as to what was in the bag. The question was who put the bag
in the trunk.
PCR Transcript at 34-35. While Riester admitted that his general practice is to impeach a
witness at trial if they say something inconsistent, his explanation for not having gone
into the alleged inconsistencies asserted by May in his post-conviction petition is
reasonable.
Moreover, Riester cross-examined Honchell regarding the enormous benefit she
received by pleading guilty. Instead of a possible ten or twenty-year sentence, Honchell
testified that she spent twenty days in jail. And during his closing argument, Riester
emphasized, repeatedly, that Honchell was not credible because it was in her self-interest
to testify that it was May who placed the brown bag in the trunk. Further, the evidence
showed Honchell’s bias because she was Justin’s girlfriend. And Honchell was exposed
for having lied about whether she knew there was anhydrous ammonia in the trunk of her
car before the officers performed the search.
The post-conviction court found and concluded in relevant part as follows:
. . . Attorney Riester presented a lengthy defense at trial consisting of the
following witnesses: Justin May, Donna May, Amanda “Kristy” May,
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Jerry May, Ina Fields, and Edna Myers. These witnesses advanced the
defense theory that Gerald May was attempting to set up Petitioner in order
to get him out of the house, and that Amy Honchell was lying about seeing
John D. May place the bag containing methamphetamine in the trunk of her
car. Attorney Riester was at least partially successful in his defense as
Petitioner was acquitted of the higher level offense of Dealing in
Methamphetamine, as a Class B felony.
8. Petitioner has presented no evidence other than to suggest that
Attorney Riester failed to ask certain questions that in hindsight might have
been relevant to impeachment of Amy Honchell. This is reasonably a
matter of trial strategy that does not amount to ineffectiveness.
Additionally, Attorney Riester presented a vigorous defense which was
successful in acquitting Petitioner of the higher level charge. Finally, upon
questioning by Petitioner’s attorney, Attorney Riester gave valid strategic
reasons for everything he did at the trial level. Petitioner has therefore
failed to meet his burden.
Appellant’s App. at 227. We cannot say that the evidence as a whole “‘leads unerringly
and unmistakably to a conclusion opposite to that reached by the [] court.’” See
Williams, 706 N.E.2d at 153. Thus, we affirm the post-conviction court’s judgment.
Affirmed.
BAKER, J., and CRONE, J., concur.
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