Milton L. Medsker v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 03 2013, 5:43 am
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.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
JOHN A. ENGLAND J.T. WHITEHEAD
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MILTON L. MEDSKER, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1303-PC-203
)
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. 49G01-0709-PC-184416
October 3, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
Appellant-Petitioner Milton Medsker was convicted of murder and sentenced to fifty-
five years of incarceration. Medsker’s conviction and sentence were affirmed on direct
appeal. Medsker filed a petition for post-conviction relief (“PCR”), ultimately claiming that
he received ineffective assistance of trial counsel. After a hearing, the post-conviction court
denied Medsker’s PCR petition. On appeal, Medsker contends that the post-conviction court
erred in denying his claim of ineffective assistance of trial counsel and that the post-
conviction court improperly limited Medsker’s testimony at the PCR hearing. Finding no
merit in these arguments, we affirm.
FACTS AND PROCEDURAL HISTORY
The facts underlying Medsker’s conviction were related by this court in its disposition
of his direct appeal:
On January 18, 2006, Robert Wheat’s body, partly covered in plastic,
was found in an alley in the 900 block of Haugh Street in Indianapolis. Wheat
died from a gunshot wound to the head. It appeared that he had been moved
from somewhere else to the spot where he was found. A Crown Royal bag
containing more than seven thousand dollars was found on Wheat’s body.
The murder investigation went on for a number of months. Detective
Marcus Kennedy, the lead investigator, eventually was led to interview as
potential suspects or witnesses: Bonnie Cardwell, Joe Skorjanc, Susan
Robbins, Ryan Baird, Naquita Baird, Josh Manuel, Mary Egan and Russell
Andrus. The story emerged that Wheat, Skorjanc and Cardwell had been
dealing large quantities of methamphetamine.
Wheat had been Robbins’ boyfriend, and they remained friends. At
some point she introduced Wheat to Cardwell, Skorjanc and Medsker.
Sometime after the murder, Medsker and two friends visited Robbins at her
home to help her pick up her car from a mechanic. In the car on the way back
Medsker told Robbins that he had killed Wheat, that Skorjanc had him do it
because of a planned robbery that went bad. Bonnie Cardwell, Skorjanc’s
sister, had set up the robbery. The plan was to take money from Wheat, but
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Wheat would not “come up with the money for the pound of
methamphetamines to give the money to Bonnie,” so Medsker shot him. Tr. at
67-68. He said that he only did what Skorjanc told him to do. Medsker
insisted that it was supposed to be a robbery until Wheat would not give them
the money. Medsker said he used Skorjanc’s gun. Robbins was devastated,
and Medsker told her he was sorry.
Medsker admitted killing Wheat to several others. He told Ryan Baird
that he had killed someone. Baird responded, “yeah, right,” because he did not
believe Medsker. Tr. at 160. Medsker then said, “no, really, I killed a guy.”
Tr. at 160. He then told Baird he had shot the victim in the head, wrapped him
up and dropped him off in an alley near Haugh Street. He showed Baird a gun
he was carrying. After Baird testified about whether he believed Medsker, the
court allowed the defense to question Baird about his opinion as to whether
Medsker was telling the truth and about Medsker’s reputation for truthfulness.
In response Baird testified that Medsker liked to be the center of attention and
had a reputation for making up stories. Baird said Medsker was known to lie
and had a reputation for making up stories, but not about killing a man.
Niquita Baird testified that Medsker told her that he had killed
somebody. He shot the victim in the head, wrapped the victim in plastic and
dropped him off near Ninth and Haugh. On another occasion Medsker told her
that he needed to “maintain being cool with [Bonnie Cardwell] so she doesn’t
tell on me for killing that guy.” Tr. at 137. Russell Andrus, Josh Manuel and
Mary Egan all testified to incriminating statements Medsker had made about
the killing. Of these, Manuel testified on direct that he did not take Medsker
seriously. On cross examination Manuel said he did not go to the police when
he heard Medsker’s admission, and that Medsker had a reputation for making
up stories. Medsker’s admissions and his knowledge of the particulars of the
murder led to his conviction.
Medsker v. State, Cause No. 49A02-0812-CR-1134, slip op. at 1 (Ind. Ct. App. Aug. 4,
2009), trans. denied. Medsker was convicted of murder and sentenced to fifty-five years of
incarceration. Id. Following his direct appeal, in which Medsker challenged the sufficiency
of the evidence to sustain his convictions and claimed that the trial court erroneously
excluded certain evidence, this court affirmed his conviction. Id. at 3.
Medsker filed a PCR petition, which he amended on July 27, 2012. Medsker’s sole
claim was that he had received ineffective assistance of counsel. Of relevance to this appeal,
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Medsker claimed that his trial counsel was ineffective for failing to sufficiently impeach
Robbins, whose trial testimony regarding Medsker’s confession to her differed significantly
in several respects from a statement she had previously given to police. The post-conviction
court held a hearing on the PCR petition on September 18 and 25, 2012. Brian Lamar,
Medsker’s trial counsel, testified that he did not attack Robbins’s credibility because that
would have been inconsistent with his trial strategy, which was essentially to concede that
Medsker had confessed to several people that he had killed Wheat but that those confessions
were false.
Also at the PCR hearing, the post-conviction court allowed Medsker to make an offer
of proof regarding how he would have testified at trial. Medsker’s offer of proof indicated
that he would have testified at trial that he never made any of the incriminating statements to
which several witnesses testified. Lamar testified that he would have called Medsker to
testify had Medsker insisted. The post-conviction court denied Medsker’s PCR petition.
DISCUSSION AND DECISION
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
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.
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Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and quotations
omitted).
I. 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):
Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), a claim of ineffective assistance of counsel requires a
showing that: (1) counsel’s performance was deficient by falling below an
objective standard of reasonableness based on prevailing professional norms;
and (2) counsel’s performance prejudiced the defendant so much that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 687, 694, 104 S. Ct. 2052;
Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994). …. Failure to satisfy
either prong will cause the claim to fail. Vermillion v. State, 719 N.E.2d 1201,
1208 (Ind. 1999).
French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Moreover, counsel is given wide
discretion in determining strategy and tactics, and therefore courts will accord these decisions
deference. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). “A strong presumption
arises that counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. “Whether a lawyer performed reasonably
under the circumstances is determined by examining the whole of the lawyer’s work on a
case.” Oliver v. State, 843 N.E.2d 581, 591 (Ind. Ct. App. 2006), trans. denied. “A
defendant must offer strong and convincing evidence to overcome the presumption that
counsel prepared and executed an effective defense.” Id.
Medsker contends that Lamar was ineffective for failing to impeach Robbins on the
inconsistencies between her trial testimony and previous statement to police. Lamar,
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however, testified that he was well aware of the inconsistencies but elected not to exploit
them because to do so would have been incompatible with his trial strategy. Again, Lamar’s
trial strategy, which Medsker agreed with, was to concede that Medsker had told several
persons that he killed Wheat but that these confessions were false. Under the circumstances
of this case, given the number of persons who were going to testify that Medsker confessed
to them, Lamar’s trial strategy seems entirely reasonable, and attacking the credibility of
those persons would have been incompatible with it. Medsker argues that the far better trial
strategy would have been to attack the credibility of all of the State’s witnesses against him,
but even if this is true (which we do not believe), the question is only whether Lamar pursued
a strategy that was reasonable under the circumstances, which he did. Medsker has failed to
establish that Lamar’s performance was deficient in this regard.
II. Whether the Post-Conviction Court Abused its
Discretion in Limiting Medsker’s Testimony
Medsker contends that the post-conviction court abused its discretion in refusing to
allow him to testify regarding how he would have testified at his trial had he been put on the
stand. The admissibility of evidence is within the sound discretion of the trial court. Curley
v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002). We will only reverse a trial court’s decision
on the admissibility of evidence upon a showing of an abuse of that discretion. Id. An abuse
of discretion may occur if the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before the court, or if the court has misinterpreted the law. Id.
The Court of Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis
in the record, even though it was not the reason enunciated by the trial court. Moore v. State,
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839 N.E.2d 178, 182 (Ind. Ct. App. 2005). We do not reweigh the evidence and consider the
evidence most favorable to the trial court’s ruling. Hirsey v. State, 852 N.E.2d 1008, 1012
(Ind. Ct. App. 2006).
As previously mentioned, while the post-conviction court did not allow Medsker’s
testimony, Medsker’s offer of proof reveals that the substance of his trial testimony would
have been that he did not, in fact, tell any of several trial witnesses that he killed Wheat.
Medsker wanted to introduce this evidence to support his argument that Lamar was
ineffective for failing to put him on the stand at trial, a claim he does not raise again on
appeal. Given the nature of what Medsker would have testified to at trial, we conclude that
any error the post-conviction may have made in refusing to admit Medsker’s testimony can
only be considered harmless. Errors in the admission of evidence are to be disregarded as
harmless unless they affect the substantial rights of a party. Ind. Trial Rule 61; Sparkman v.
State, 722 N.E.2d 1259, 1263 (Ind. Ct. App. 2000). Here, Medsker’s trial testimony would
have been just as incompatible with Lamar’s trial strategy (which we have already
determined was reasonable) as an impeachment of Robbins would have been. Consequently,
we conclude that the admission of Medsker’s post-conviction testimony would have made no
difference, as it would not have established that Lamar’s trial strategy was unreasonable in
any event. Any error the post-conviction court may have made in this regard was harmless.
The judgment of the post-conviction court is affirmed.
BAILEY, J., and MAY, J., concur.
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