John Ivy 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 establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK SMALL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
Mar 12 2013, 9:10 am
IN THE
COURT OF APPEALS OF INDIANA
JOHN IVY, )
)
Appellant-Defendant, )
)
vs. ) No. 18A02-1205-PC-378
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Thomas G. Wright. Special Judge
Cause No. 18D02-9612-CF-82
March 12, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
John Ivy was convicted of murder, a felony. After our supreme court affirmed his
conviction on direct appeal, Ivy petitioned for post-conviction relief. The post-conviction
court denied his petition. He raises the following restated issues for our review: 1)
whether the post-conviction court erred in concluding Ivy waived two of his post-
conviction claims; and 2) whether the post-conviction court erred in concluding Ivy did
not receive ineffective assistance of trial counsel.1 Concluding the post-conviction court
erred in finding Ivy had waived two issues, but notwithstanding that error, Ivy failed to
demonstrate he was entitled to post-conviction relief on any of his claims, we affirm.
Facts and Procedural History
On November 20, 1996, Ivy, Antione Barber, and a third man were robbed at
gunpoint in Tanisha Love’s apartment in Muncie by King David Preston and three other
men. On November 21, 1996, Preston died of multiple gunshot wounds in Michael
Horton’s apartment, also in Muncie. Ivy and Barber were charged and tried separately
for Preston’s murder.
Love testified at Ivy’s trial that she arrived at her apartment on November 20 in
the midst of the robbery. Donnica Hall arrived separately at Love’s apartment as several
men ran out of the apartment, one of whom stopped to cut the tires on Ivy’s car parked
outside, the keys to which had been taken during the robbery. Hall and the three men
who had been robbed filed a police report and then Hall drove the men back to their
hometown of Dayton, Ohio, to retrieve Ivy’s spare car keys. She then drove Ivy and
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Ivy also claims the post-conviction court erred in finding that his petition was barred by laches. Given
that both the post-conviction court and this court discuss the merits of his claims, we need not decide this issue.
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Barber back to Muncie, returning to Love’s apartment at approximately 4 a.m. on
November 21.
Samuel Powell testified that at approximately 8 p.m. on November 21, he
encountered Ivy and Barber entering Horton’s apartment building as he exited. Preston
was at Horton’s apartment at that time, getting ready to go out for the evening. Around 8
p.m., Horton answered a knock on his door to find Ivy and Barber in the hallway. Horton
saw Ivy had a gun and fled to the apartment across the hall to call 911. He heard four or
five gunshots, then steps retreating down the stairs, and returned to his apartment to find
Preston bleeding on the floor. On cross-examination, Horton testified that he was
currently in jail in Ohio for felony drug charges for which he faced a sentence of five to
fifteen years:
Q [by defense counsel]: Mr. Horton have you been offered anything by the
State uh, regarding that pending case you have for your testimony in Court
today?
A: No.
Q: You expect that your testimony today is going to be taken into account
in regards to his pending case that you have?
A: No.
Trial Transcript at 564-65.
Jimmy Powell testified that he saw Ivy a couple of days after Preston was killed,
and in response to Jimmy’s question about who would do that, Ivy said:
A: He (inaudible) if he’d robbed you of two thousand.
Q [by State]: Say anything else?
A: Said how could you, you know embarrass you in front of, in front of
(inaudible).
Id. at 593-94. Ivy also told Powell that he got a gun from his cousin. On cross-
examination, Powell indicated he, too, was currently in jail in Muncie awaiting trial:
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Q [by defense counsel]: You been offered anything?
A: No.
Q: Do you expect leniency in return for your testimony for the State?
A: (Inaudible).
Q: Just here because you’re a good citizen?
A: I did cause my friends did that’s why I did it.
Id. at 598.
In his own defense, Ivy testified that after Hall drove him back to Muncie on
November 21, he retrieved his car and he and Barber returned to Dayton in the early
evening. Ivy dropped Barber off and went to Dale Reeder’s house, from where he called
his mother. His mother told him his great-grandfather had passed away. Ivy then picked
up his girlfriend LaDonna Simon and the two went to Ivy’s mother’s house, arriving
around 5:30 p.m. and staying with her the rest of the night. Simon also testified that Ivy
picked her up at home in Dayton approximately 5:30 p.m. on November 21 and they
went to his mother’s house, where they watched movies with her and stayed the night. At
no time that evening was Ivy gone long enough to have driven to Muncie and returned.
Ivy, represented by a public defender, was found guilty of murder, a felony,
following a jury trial in 1998, and sentenced to sixty-five years in prison. On appeal, our
supreme court affirmed his conviction. Ivy v. State, 715 N.E.2d 408, 410 (Ind. 1999). In
2000, Ivy filed a pro se petition for post-conviction relief and was subsequently appointed
counsel. In 2005, however, Ivy’s public defender withdrew without the petition ever
having been acted upon. In 2010, this time with Ivy’s present counsel, Ivy again moved
for post-conviction relief. The post-conviction court held an evidentiary hearing and
issued findings of fact and conclusions of law denying Ivy’s requested relief. Ivy now
appeals. Additional facts will be provided as necessary.
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Discussion and Decision
I. Standard of Review
“Post-conviction relief is not a substitute for a direct appeal. Post-conviction
procedures create a narrow remedy for subsequent collateral challenges to convictions.”
Martin v. State, 760 N.E.2d 597, 599 (Ind. 2002) (citations omitted). To succeed on
appeal from the denial of post-conviction relief, the petitioner must demonstrate that the
evidence is without conflict and leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Johnson v. State, 832 N.E.2d 985,
991 (Ind. Ct. App. 2005), trans. denied. A post-conviction court must make findings of
fact and conclusions of law, and the findings must be supported by the facts and the
conclusions must be supported by the law. Allen v. State, 749 N.E.2d 1158, 1164 (Ind.
2001), cert. denied, 535 U.S. 1061 (2002). The post-conviction court is the sole judge of
the weight of the evidence and the credibility of witnesses. Johnson, 832 N.E.2d at 991.
II. Waiver of Issues
In his 2010 petition for post-conviction relief, Ivy raised the following grounds for
relief: 1) ineffective assistance of trial counsel; 2) newly-discovered evidence; and 3)
prosecutorial misconduct at trial. The post-conviction court found Ivy had waived the
newly-discovered evidence and prosecutorial misconduct claims by failing to present
evidence with respect to these claims and by failing to raise them in his direct appeal. Ivy
contends the post-conviction court erred in finding waiver.
If an issue is known and available on direct appeal but not raised, it is waived.
White v. State, 971 N.E.2d 203, 206 (Ind. Ct. App. 1012), trans. denied. Ivy contends the
State committed misconduct at his trial in statements it made during voir dire and closing
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argument. This alleged error was known and available at the time of Ivy’s direct appeal,
and the post-conviction court is correct that even Ivy’s “fundamental error” argument
about these statements is waived on post-conviction. See Lindsey v. State, 888 N.E.2d
319, 325 (Ind. Ct. App. 2008) (noting a claim of fundamental error on post-conviction
can only be made in the context of an ineffective assistance claim or if the issue was
demonstrably unavailable at the time of trial and direct appeal), trans. denied. To the
extent Ivy argues ineffective assistance of his trial counsel in failing to object to this
alleged misconduct, that claim is allowed on post-conviction and Ivy did provide the
transcript of the trial and question his trial counsel about that issue at the post-conviction
hearing, however briefly. We will therefore address Ivy’s prosecutorial misconduct
claim within the context of our ineffective assistance of counsel discussion below.
With respect to Ivy’s newly discovered evidence claim, he did present both the
trial testimony and current deposition testimony of certain witnesses to support his claim,
and part of his claim is that it was evidence unknown to him at the time of trial. The
post-conviction court erroneously found this claim was waived, and we will address its
merits below.
III. Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are governed by the two-part
test announced in Strickland v. Washington . . . . First, the defendant must
show that counsel’s performance was deficient. This requires a showing
that counsel’s representation fell below an objective standard of
reasonableness and that the errors were so serious that they resulted in a
denial of the right to counsel guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. To establish prejudice, a defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
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different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.
Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002) (internal citations omitted). There is a
strong presumption that counsel’s representation was adequate, and counsel is afforded
considerable discretion in choosing strategy and tactics. Stevens v. State, 770 N.E.2d
739, 746-47 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). “Isolated mistakes, poor
strategy, inexperience, and instances of bad judgment do not necessarily render
representation ineffective.” Id. at 747.
A. Alibi Witnesses
Ivy first argues his counsel’s performance was deficient because counsel “called
only Ivy and Ivy’s girlfriend at trial to establish Ivy’s alibi,” and “[a]t least four (4) other
witnesses were available to testify” as to Ivy’s alibi that he was in Dayton during the
shooting. Appellant’s Brief at 14. We disagree. Ivy’s counsel filed a notice of alibi, and
at trial called Ivy and his girlfriend to testify as to his alibi that he was in Dayton during
the time of the shooting. The testimony of additional witnesses to the same effect would
merely have been cumulative of the evidence already presented, especially in light of
contradictory testimony by State witnesses that Ivy was in Horton’s apartment when
Preston was shot. This is unlike Williams v. State, 508 N.E.2d 1264 (Ind. 1987), which
Ivy cites to support his argument, where a defendant’s attorney filed a notice of alibi but
then made no effort to depose the alibi witnesses, obtain affidavits from them, subpoena
them, or otherwise ensure their attendance at trial, blaming the defendant’s lack of funds
to pursue those witnesses for his failure. Id. at 1267. In those circumstances, our
supreme court concluded the defendant’s counsel’s performance was deficient because he
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failed to produce any evidence at all from available sources in support of an alibi defense
and that without such deficient performance there was a reasonable likelihood that the
outcome of his trial would have been different. Id. at 1267-68. Here, Ivy’s counsel did
present evidence supporting his alibi defense, including the testimony of Ivy and another
witness. That he did not present every alibi witness identified by Ivy is a strategic
decision, especially when the testimony adduced at the post-conviction hearing indicated
inconsistencies across all alibi witnesses’ stories and other potentially problematic issues
with the witnesses. See McCullough v. State, 973 N.E.2d 62, 83 (Ind. Ct. App. 2012)
(“[I]n the context of an ineffective assistance claim, a decision regarding what witnesses
to call is a matter of trial strategy which an appellate court will not second-guess.”)
(quotations omitted).
B. Rule 404(b) Evidence
Ivy next argues his counsel’s performance was deficient because he failed “to
object to testimony as to Ivy’s prior acts after counsel’s Motion in Limine as to those
same matters had been granted by the trial court prior to trial.” Appellant’s Br. at 15.
However, a motion in limine “is not a final ruling on the admissibility of evidence.”
Watson v. State, 972 N.E.2d 378, 386 (Ind. Ct. App. 2012) (quoting Simmons v. State,
760 N.E.2d 1154, 1158 (Ind. Ct. App. 2002)). Thus, a defendant must reassert his
objection contemporaneously with the introduction of the evidence to allow the trial court
an opportunity to make a final ruling in the context in which the evidence is introduced.
White v. State, 687 N.E.2d 178, 179 (Ind. 1997). When an appellant brings an ineffective
assistance claim based upon trial counsel’s failure to make an objection, the appellant
must demonstrate that the trial court would have sustained a proper objection, and that
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failure to object resulted in prejudice. Glotzbach v. State, 783 N.E.2d 1221, 1224 (Ind.
Ct. App. 2003).
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Ind. Evidence Rule 404(b). Ivy
argues his counsel should have objected to Love’s testimony that when Ivy and Barber
returned to her apartment in the early morning hours of November 21, Ivy struck her with
a handgun and stated they had been robbed of cocaine. Ivy contends this evidence could
be construed as evidence of battery and possession of cocaine. The State argues Love’s
testimony was evidence “inextricably bound with or intrinsic to the charged offense” in
that they were a series of connect events. Brief of Appellee at 19. Even if Ivy’s counsel
should have objected because the testimony was evidence of another crime, Ivy has not
shown that he was prejudiced by such failure to object. There was ample evidence to
support his conviction for murder, including the testimony of two witnesses who stated
they saw Ivy at the scene of the murder holding a handgun.
C. Prosecutorial Misconduct
To prevail on a claim of ineffective assistance due to prosecutorial misconduct, a
post-conviction petitioner must show that prosecutorial misconduct in fact occurred.
Pruitt v. State, 903 N.E.2d 899, 928 (Ind. 2009). A court applies a two-step test in
deciding claims of prosecutorial misconduct. Gasaway v. State, 547 N.E.2d 898, 901
(Ind. Ct. App. 1989), trans. denied. First, the court must determine whether the
prosecutor in fact engaged in misconduct. Id. This determination is made by referencing
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case law and the Rules of Professional Conduct. Second, the court must consider
whether the misconduct, under the totality of the circumstances, placed the defendant in a
position of grave peril to which he should not have been subjected. Id. The prosecutorial
conduct at issue consists of two portions of the State’s closing argument. First, the State
made comments leveraging its own personal integrity and character in support of its case.
Second, the State referenced the fact that Ivy’s mother was not in the courtroom and did
not testify in his defense.
We conclude that even if the State’s comments constituted misconduct, Ivy was
not placed in a position of grave peril. As we have reiterated, among other incriminating
evidence, two witnesses placed Ivy at the scene of the murder in possession of a handgun.
It is unlikely the State’s statements impacted the jury’s decision-making process in light
of the large body of evidence supporting Ivy’s guilt. Ivy has failed to meet his burden of
proving he was denied the effective assistance of trial counsel in any respect.
IV. Newly Discovered Evidence
Ivy argues the post-conviction court erred in concluding there was no new
evidence that arose after Ivy’s trial. Ivy notes that at trial Horton and Jimmy Powell
testified for the State and stated they were incarcerated on pending charges but did not
expect leniency in return for their testimony; however, after Ivy’s trial evidence arose
suggesting they did expect leniency. Specifically, Ivy points out that Horton was only
sentenced to one year in prison despite facing a potential sentence of five to fifteen years,
and Powell subsequently stated in a deposition that he lied at trial about not expecting
leniency in exchange for his testimony:
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Q [Ivy’s post-conviction counsel]: Was there any reason that you’re aware
of that they dropped it from an A to a C?
A: I’m almost for sure they did it for me testifying.
***
Q. So, at trial it’s in – he asks you, do you expect leniency and have you
been offered any, and you said, no. And he asks, do you expect leniency,
and it’s inaudible, your answer is. But then he says, just here because
you’re a good citizen. And then, you see, I did, cause [sic] my friends did
it.
So, you never testified at trial that there was any kind of
consideration you were being given for your testimony, is that correct?
A. Yep.
Q. So, when you make that statement at trial that wasn’t true, is that
correct?
A. No, I knew that was going to give me some leniency.
Q. So, you didn’t tell the truth in your testimony there, did you?
A. No, sir.
***
Q [State]: Mr. Powell, at first you said that there was no agreement with
the State before you were sentenced and that you had no understanding
what the prosecutor in your case as regarding a sentence for you [sic], is
that correct?
A: Yeah, but I knew they was [sic] going to give me some leniency.
Q: How is it that you knew that they were going to give you something?
A: It was unwritten rule. I knew with my testimony they would give
me a break.
Q: Oh, was it just your belief that if you testified that they would give
you something?
A: They – I knew they would.
Q: Were you contacted by anyone from the prosecutor’s office stating
that if you provided testimony in the Ivy case . . . being given some sort of
consideration in your pending criminal matter?
A: No, but the detectives did.
Powell Deposition Transcript at 12-13, 15, 19.
As our supreme court has stated:
[N]ew evidence will mandate a new trial only when the defendant
demonstrates that : (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.
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Taylor v. State, 840 N.E.2d 324, 329-30 (Ind. 2006) (quoting Carter v. State, 738 N.E.2d
665, 671 (Ind. 2000)). The burden of demonstrating all nine requirements rests with the
petitioner. Id. at 330.
We conclude Ivy has failed to demonstrate all nine requirements. First, the
evidence is merely impeaching. If the evidence demonstrated that an express agreement
was formed between the State and Powell or Horton, such evidence would be more than
merely impeaching, but preliminary discussions of such an agreement or a witness’s hope
of leniency are not required to be disclosed by the State, Tolliver v. State, 922 N.E.2d
1272, 1285 (Ind. Ct. App. 2010), trans. denied, and such evidence is therefore only
valuable so as to impeach the testimony of the witness.
Second, because the evidence is merely impeaching, and because a witness other
than Powell and Horton placed Ivy at the scene of the murder in possession of a handgun,
we cannot conclude Ivy has demonstrated that the newly found evidence would probably
produce a different result at retrial. Thus, the post-conviction court did not err in denying
Ivy relief based on a claim of newly discovered evidence.
Conclusion
Ivy has failed to demonstrate that the evidence leads unmistakably to a conclusion
opposite that reached by the post-conviction court on any of his claims for relief, and we
therefore affirm the judgment of the post-conviction court denying him relief.
Affirmed.
MAY, J., and PYLE, J., concur.
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