William Baxter 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 Mar 28 2013, 8:48 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
WILLIAM BAXTER GREGORY F. ZOELLER
Carlisle, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM BAXTER, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A04-1205-PC-248
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kurt M. Eisgruber, Judge
The Honorable Steven J. Rubick, Magistrate
Cause No. 49G01-0810-PC-249149
March 28, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
William Baxter was convicted of Class A felony rape, two counts of Class B felony
criminal deviate conduct, Class C felony robbery, and Class A misdemeanor battery, for
which he received an aggregate sentence of fifty-four years of incarceration. In this post-
conviction proceeding, Baxter contends that he received ineffective assistance of trial and
appellate counsel in several respects. Concluding that Baxter has failed to establish that he
received ineffective assistance of trial and appellate counsel, we affirm.
FACTS AND PROCEDURAL HISTORY
The facts underlying Baxter’s convictions were related by this court in its disposition
of Baxter’s direct appeal:
In the early morning hours of September 29, 2007, T.R. was walking
down a street in Indianapolis when she came into contact with three men:
Baxter, Dion Stewart, and a third person known only as “Slim.” Tr. p. 63. The
three men began walking with T.R., and Stewart eventually offered some
cocaine to T.R., which she sniffed off of his driver’s license. T.R. then
accompanied the three men to an abandoned house, although she was
expecting to go to one of the three men’s house. Stewart and T.R. began
kissing at the side of the house, and then he removed his penis from his pants
and asked T.R. to touch it. T.R. refused and said she wanted to go home.
When T.R. said this, the three men accused her of stealing their “stuff”
(i.e., cocaine). Id. at 71. T.R. began walking away, and one of the men
directed her to a purported “shortcut” to her residence down an alley. When
she reached the alley, someone said, “Now,” and Stewart put his arm around
T.R.’s neck from behind and began choking her. Id. at 78. Baxter and Stewart
then began hitting her about the head with closed fists, trying to knock her out.
They then pulled her pants down, while Slim stood watch. Slim forced T.R. to
perform oral sex on him while either Baxter or Stewart had vaginal intercourse
with her. Baxter and Stewart then alternated forcing T.R. to submit to oral,
vaginal, and anal intercourse with them. After about thirty minutes, the three
men began to leave and took T.R.’s cell phone and keys from her pants pocket.
When T.R. protested that they were taking her house keys, Stewart punched
her in the mouth. The punch caused a laceration to T.R.’s lip that required
plastic surgery and left a scar. T.R. was able to summon help after the three
men left. When taken to the hospital, T.R. was given morphine for her pain.
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Baxter v. State, No. 49A02-0905-CR-461, slip op. at 1 (Ind. Ct. App. Feb. 16, 2010). When
DNA samples collected from T.R. were submitted to the CODIS database, two of the
samples were found to match Baxter and Stewart. A cheek swab collected from Baxter
confirmed the CODIS match.
The State charged Baxter with two counts of Class A felony rape, four
counts of Class A felony criminal deviate conduct, one count of Class A felony
robbery, one count of Class C felony battery, and one count of Class D felony
theft. After a jury trial held on April 15-16, 2009, Baxter was found guilty as
charged on all counts. At the sentencing hearing on May 1, 2009, the trial
court entered judgments of conviction for the following: one count of Class A
felony rape, two counts of Class B felony criminal deviate conduct, one count
of Class C felony robbery, and one count of Class A misdemeanor battery.
Id. Stewart and Baxter were tried together after the trial court denied Baxter’s motion to
sever. On May 1, 2009, the trial court sentenced Baxter to an aggregate sentence of fifty-four
years of incarceration. Following direct appeal, in which Baxter challenged only his rape
conviction, this court affirmed the judgment of the trial court. Id. at 3. In 2010, Baxter filed
a petition for post-conviction relief (“PCR”), and he filed an amended petition on February
17, 2011. On April 20, 2012, the post-conviction court denied Baxter’s PCR petition in full.
DISCUSSION
PCR Standard of Review
Our standard for reviewing the denial of a PCR petition is well-settled:
In reviewing the judgment of a post-conviction court, appellate courts
consider only the evidence and reasonable inferences supporting its judgment.
The post-conviction court is the sole judge of the evidence and the credibility
of the witnesses. To prevail on appeal from denial of post-conviction relief,
the petitioner must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite to that reached by the post-conviction
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court.… Only where the evidence is without conflict and leads to but one
conclusion, and the post-conviction court has reached the opposite conclusion,
will its findings or conclusions be disturbed as being contrary to law.
Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and quotations
omitted).
I. Whether Baxter Received Ineffective Assistance of Trial Counsel
We review claims of ineffective assistance of counsel based upon the principles
enunciated in Strickland v. Washington, 466 U.S. 668 (1984):
[A] claimant must demonstrate that counsel’s performance fell below an
objective standard of reasonableness based on prevailing professional norms,
and that the deficient performance resulted in prejudice. Prejudice occurs
when the defendant 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 arises when there is a
“probability sufficient to undermine confidence in the outcome.”
Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).
Because an inability to satisfy either prong of this test is fatal to an ineffective assistance
claim, this court need not even evaluate counsel’s performance if the petitioner suffered no
prejudice from that performance. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).
A. Failure to Object to Alleged Prosecutorial Misconduct
Baxter contends that his trial counsel was ineffective for failing to object to alleged
prosecutorial misconduct. Although Baxter makes several allegations of misconduct in his
Appellant’s Brief, the only three that were also made below concern three statements the
prosecutor made during closing: “that makes her more credible,” “these guys are credible
over her,” and “He’s not credible.” Tr. pp. 396, 398, 400. Baxter contends that these
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statements are impermissible statements regarding witness credibility. It is well-settled,
however, that “a prosecutor may comment on the credibility of the witnesses as long as the
assertions are based on reasons which arise from the evidence.” Lopez v. State, 527 N.E.2d
1119, 1127 (Ind. 1988).
Our review of the record reveals no misconduct. The prosecutor made the first
statement while referring to prior statements that were inconsistent with T.R.’s trial
testimony, arguing that her acknowledgment that she had lied made her more credible now.
The second statement appears to be a rhetorical question, with the prosecutor asking if the
defendants were more credible than the victim in light of her testimony. The third statement
was made while the prosecutor was explaining why the defendants’ version of events was not
credible. In other words, all three statements were based on evidence in the record, not the
prosecutor’s personal opinions regarding credibility, and were therefore acceptable. Baxter’s
trial counsel was not ineffective for failing to object on the basis of prosecutorial misconduct.
B. Failure to Object to Certain Pieces of Evidence
Baxter contends that his trial counsel was ineffective for failing to object to the
admission of several pieces of physical evidence, namely items of clothing collected from
T.R. by Wishard Health Service Registered Nurse Laura Maloy and DNA collected from
Baxter by Indianapolis Metropolitan Police Detective Daniel Green in order to confirm the
CODIS match. Baxter contends that the clothing was insufficiently identified and lacked a
proper chain of custody. Baxter contends that the DNA lacked a proper chain of custody and
was not collected in the manner set forth in Indiana Code sections 10-13-6-12 and 9-30-6-6.
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In other words, Baxter contends that the State failed to lay proper foundations for the
evidence.
Baxter contends that no witness testified that the clothing collected from T.R. was
connected to the crimes. Nurse Maloy testified, however, that she collected the clothing from
T.R. during the sexual assault examination, giving rise to the reasonable inference that T.R.
was wearing the items during the attack. In any event, Baxter presented no evidence that
Nurse Maloy or T.R. would have failed to identify the clothing as connected to the crime if
they had been asked to do so. As for the chain of custody claims regarding the clothing,
Baxter has failed to carry his burden of establishing that the witnesses in question could not
have accounted for the evidence if they had been asked to do so.
Regarding the DNA sample, Baxter’s chain-of-custody argument suffers from the
same fatal flaw as his argument regarding the clothing: there is no evidence that Detective
Green could not have accounted for the DNA sample if he had been asked to do so. Finally,
as for Baxter’s statutory arguments, it is clear that neither Indiana Code sections 9-30-6-6 or
10-13-6-12 apply to the cheek swab Detective Green conducted in this case. Section 9-30-6-
6 governs the collection of samples pursuant to the Implied Consent chapter of the Traffic
Code, and section 10-13-6-12 governs the collection of samples for the Indiana DNA data
base. Additionally, as with Baxter’s other evidentiary arguments, even assuming that the
State did not satisfy some foundational requirement, there is no evidence that it could not
have done so if required. Because Baxter’s foundational arguments amount to nothing more
than pure speculation that the State could not have laid the proper foundation if required, he
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has failed to establish ineffective assistance in this regard.
C. Failure to Properly Prepare for Trial
Baxter contends that his trial counsel failed to adequately investigate potential
witnesses or review the DNA evidence. Baxter, however, has not presented any evidence
indicating what further investigation would have uncovered or how it might have helped his
case. Baxter presented no evidence regarding who these allegedly helpful witnesses were or
what their testimony would have been. Baxter also failed to present any evidence regarding
what further review of the State’s DNA evidence might have revealed or how it could have
helped him.
[E]stablishing [failure to investigate as a] ground for ineffective assistance …
require[s] going beyond the trial record to show what the investigation, if
undertaken, would have produced. This is necessary because success on the
prejudice prong of an ineffectiveness claim requires a showing of a reasonable
probability of affecting the result.
Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998). Baxter has failed to show what further
investigation would have produced and so has failed to establish ineffective assistance of trial
counsel in this regard.
D. Failure to Move to Sever
Baxter contends that his trial counsel was ineffective for failing to move to sever his
trial from Stewart’s. As Baxter concedes, however, his trial counsel did, in fact, move to
sever, a motion the trial court denied. If the underlying issue of severance is to entitle Baxter
to relief, it will not be on the basis of ineffective assistance of trial counsel.
II. Whether Baxter Received Ineffective Assistance of Appellate Counsel
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We review claims of ineffective assistance of appellate counsel using the same
standard applicable to claims of trial counsel ineffectiveness. Ben-Yisrayl v.
State, 729 N.E.2d 102, 106 (Ind. 2000). The defendant must show that
appellate counsel was deficient in his performance and that the deficiency
resulted in prejudice. Id. Ineffective assistance claims at the appellate level of
proceedings generally fall into three basic categories: (1) denial of access to
an appeal; (2) waiver of issues; and (3) failure to present issues well. Bieghler
v. State, 690 N.E.2d 188, 193-95 (Ind. 1997).
Fisher v. State, 810 N.E.2d 674, 676-77 (Ind. 2004). Baxter’s claim of ineffective assistance
of appellate counsel falls into the second category.
Baxter contends that his appellate counsel was ineffective for failing to challenge the
trial court’s denial of his motion to sever on direct appeal.
[U]pon motion of the defendant or the prosecutor, the court shall order a
separate trial of defendants whenever the court determines that a separate trial
is necessary to protect a defendant’s right to a speedy trial or is appropriate to
promote a fair determination of the guilt or innocence of a defendant.
Ind. Code § 35-34-1-11(b).
Defendants have no absolute right to a separate trial or severance, but
they may ask the trial judge to exercise her discretion to grant such a motion.
An abuse of discretion occurs when a court denies a defendant’s properly filed
motion for separate trials and the parties’ defenses are mutually antagonistic to
such a degree that acceptance of one party’s defense precludes the acquittal of
the other. A defendant is not, however, entitled to a separate trial merely
because a co-defendant implicates that defendant.
Rouster v. State, 705 N.E.2d 999, 1004 (Ind. 1999) (citations omitted).
Baxter contends that a motion for severance should have been granted here because
the jury was prevented from hearing testimony from him about Stewart’s participation in the
crimes. Baxter has failed to present any evidence to support this claim. Although Baxter
testified at his PCR hearing, he did not testify regarding what his testimony about Stewart’s
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participation would have been. Baxter also contends that the joint trial prevented Stewart
from testifying, which, he claims, would have helped him. Stewart, however, did not testify
at the PCR hearing, so there is no evidence regarding what he might have testified to at
Baxter’s individual trial or that it would have had a reasonable probability of affecting the
outcome. Baxter has failed to establish that he received ineffective assistance of appellate
counsel.
The judgment of the post-conviction court is affirmed.
RILEY, J., and BROWN, J., concur.
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