David Lautenschlager v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
Jun 18 2013, 6:25 am
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:
DAVID LAUTENSCHLAGER GREGORY F. ZOELLER
Carlisle, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID LAUTENSCHLAGER, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A04-1211-PC-653
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark D. Stoner, Judge
The Honorable Jeffrey L. Marchal, Master Commissioner
Cause No. 49G06-0304-PC-64421
June 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
David Lautenschlager appeals the post-conviction court’s denial of his petition for
post-conviction relief. Lautenschlager raises a single issue for our review, namely,
whether the post-conviction court erred when it concluded that Lautenschlager had not
been denied the effective assistance of trial counsel. We affirm.
FACTS AND PROCEDURAL HISTORY
In a memorandum decision on Lautenschlager’s direct appeal, we described the
facts underlying his convictions as follows:
Preet Singh operates a Sunoco gas station on West Washington Street in
Indianapolis, Indiana. On the evening of February 5, 2003, Singh was
training a new employee, Freddie Miller, when a man entered the gas
station and demanded money. Singh recognized the man as a patron of the
gas station and thought he was joking until the man displayed a gun. Miller
gave the man all of the money in the cash register, but the man demanded
more. Singh and Miller gave him the money from their wallets. The man
told Singh and Miller he would kill them if they called the police. He then
took cigarettes and a lighter as he left the gas station. Miller called 911.
On February 17, 2003, Singh was working alone at the gas station
when the same man returned and robbed him at gunpoint again. Both
Singh and the company which monitored a panic alarm at the station
contacted the police.
The police obtained the security surveillance tapes of both incidents.
The investigation led to the production of a six-person photo array that
included Lautenschlager’s photograph. Marion County Sheriff’s
Department Detective Michael Hornbrook met with Miller on April 9,
2003, and Miller selected Lautenschlager’s photo from the array as the
robber. Detective Hornbrook showed the array to Singh the following day,
and Singh also selected Lautenschlager’s photo. The State then charged
Lautenschlager with three counts of robbery as Class B felonies for being
armed with a deadly weapon. He was also alleged to be an habitual
offender. The jury found Lautenschlager guilty of the three counts of
robbery. Lautenschlager waived jury trial of the habitual count, and the
court adjudged him an habitual offender. Lautenschlager was ordered to
serve an aggregate sentence of forty years. . . .
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Lautenschlager v. State, No. 49A02-0410-CR-838, slip op. at 2-3 (Ind. Ct. App. July 27,
2005) (footnote omitted), trans. denied (“Lautenschlager I”).
On September 11, 2006, Lautenschlager filed his petition for post-conviction
relief, which he amended on August 19, 2010. In his amended petition, Lautenschlager
asserted that he had been denied the effective assistance of trial counsel for numerous
reasons. The post-conviction court held an evidentiary hearing on Lautenschlager’s
petition and, on May 24, 2012, the court entered findings of fact and conclusions of law
denying Lautenschlager’s petition. This appeal ensued.
DISCUSSION AND DECISION
Overview
Lautenschlager appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review is well established:
[The petitioner] bore the burden of establishing the grounds for post-
conviction relief by a preponderance of the evidence. See Ind. Post-
Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
2001). Post-conviction procedures do not afford a petitioner with a super-
appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597.
Rather, subsequent collateral challenges to convictions must be based on
grounds enumerated in the post-conviction rules. Id. If an issue was
known and available, but not raised on direct appeal, it is waived. Id. If it
was raised on appeal, but decided adversely, it is res judicata. Id.
In reviewing the judgment of a post-conviction court, appellate
courts consider only the evidence and reasonable inferences supporting the
post-conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind.
2006). The post-conviction court is the sole judge of the evidence and the
credibility of the witnesses. Id. at 468-69. Because he is now appealing
from a negative judgment, to the extent his appeal turns on factual issues
[the petitioner] must convince this court that the evidence as a whole leads
unerringly and unmistakably to a decision opposite that reached by the
post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb
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the decision only if the evidence is without conflict and leads only to a
conclusion contrary to the result of the post-conviction court. Id.
Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.
Lautenschlager’s arguments on appeal are premised on his theory that he was
denied the effective assistance of trial counsel. A claim of ineffective assistance of
counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668 (1984).
First, the defendant must show deficient performance: representation that fell below an
objective standard of reasonableness, committing errors so serious that the defendant did
not have the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88. Second, the
defendant must show prejudice: a reasonable probability (i.e., a probability sufficient to
undermine confidence in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different. Id. at 694. We afford counsel considerable
discretion in choosing strategy and tactics, and “‘[i]solated mistakes, poor strategy,
inexperience, and instances of bad judgment do not necessarily render representation
ineffective.’” State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012) (quoting Timberlake, 753
N.E.2d at 603) (alteration original to Hollin).
Here, Lautenschlager alleges he was denied the effective assistance of counsel for
six reasons, which we consolidate into the following four arguments: (1) his trial counsel
failed to seek the removal of a potentially biased juror; (2) his counsel failed to call a
video identification expert; (3) his counsel failed to cross-examine witnesses regarding
Singh’s in-court identification of Lautenschlager; and (4) his counsel failed to establish
the lead detective’s bias, Lautenschlager’s alibi defense, and Lautenschlager’s use of
prescription medications during trial. We address each of these four arguments in turn.
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Juror Removal
Lautenschlager first asserts that his trial counsel was ineffective because he did not
seek the removal of a potentially biased juror. In order to succeed on this issue,
Lautenschlager must show that his counsel’s objection to the juror’s presence would have
been successful. See, e.g., Danks v. State, 733 N.E.2d 474, 489 (Ind. Ct. App. 2000).
During Lautenschlager’s trial, the juror in question informed the court that he had been
interviewed in another case by the State’s lead detective in Lautenschlager’s case. In
response to ensuing questions from the court, the juror stated that he did not think that
there was “anything about [his] contact with [the detective] . . . that would cause [the
juror] to lose [his] ability to be fair and impartial.” Trial Transcript at 197.
It is well established that “timely disclosure of a juror’s casual relationship with a
witness or a party, coupled with an assertion that the juror will remain impartial,
adequately protect a defendant’s right to an impartial jury.” McCants v. State, 686
N.E.2d 1281, 1285 (Ind. 1997). Accordingly, had Lautenschlager’s counsel objected to
the juror’s continued service, his objection would not have been successful. Thus,
Lautenschlager cannot demonstrate ineffective assistance on this issue.
Expert Witness
Lautenschlager next asserts that his trial counsel was ineffective because he failed
to call a video identification expert to assess the quality of the gas station’s security
videos. “[W]e do not second-guess strategic decisions requiring reasonable professional
judgment even if the strategy or tactic, in hindsight, did not best serve the defendant’s
interests.” State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997).
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At the evidentiary hearing before the post-conviction court, Lautenschlager’s trial
counsel testified that he did not call an expert to analyze the security videos because,
instead, he submitted to the jury an FBI report in which the FBI had concluded the videos
were “essentially inconclusive.” P-C Transcript at 69. The FBI’s report was stipulated to
by the State, and Lautenschlager’s trial counsel testified that he “made a strategic
decision” to use the FBI report “in lieu of live testimony.” Id. at 70. We will not second
guess counsel’s strategic decision, and, as such, Lautenschlager cannot demonstrate that
his counsel was ineffective on this issue.
Cross-Examination
Lautenschlager next asserts that his trial counsel failed to cross-examine several
witnesses on Singh’s eyewitness identification of Lautenschlager. During Singh’s
testimony at trial, the State asked Singh if he recognized the robber in court. Singh was
equivocal, and the State had him dismissed. But, upon leaving the witness stand, Singh
recognized Lautenschlager as the robber. The State then recalled Singh as a witness, and
Singh testified accordingly.
In his brief in this appeal, Lautenschlager alleges that, between leaving the witness
stand and being recalled, Singh “not only spoke with the prosecutor, he also talke[d] with
police officers that had been involved in the case.” Appellant’s Br. at 16. Thus,
Lautenschlager, continues, his trial counsel rendered ineffective assistance when he failed
to “cross-examine[] the police officers that Mr. Singh spoke with during that time, in
order to determine whether or not the question of identification came up during those
conversations.” Id.
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Lautenschlager cannot demonstrate reversible error on this issue. At the post-
conviction court’s evidentiary hearing, Lautenschlager did not call any of the police
officers Singh allegedly spoke with at trial to testify before the post-conviction court.
Neither does Lautenschlager demonstrate where in the record he elicited any testimony
before the post-conviction court on this alleged issue. Lautenschlager’s speculation is not
sufficient to demonstrate reversible error. Lindsey, 888 N.E.2d at 322.
Other Claims
Finally, Lautenschlager asserts that his trial counsel inadequately established the
lead detective’s bias, Lautenschlager’s alibi defense, and Lautenschlager’s use of
prescription medications during trial. However, as Lautenschlager candidly
acknowledges: “Admittedly, Appellant failed to present evidence in support of these
claims.” Appellant’s Br. at 17. Accordingly, Lautenschlager cannot meet his burden of
demonstrating reversible error on any of these purported issues. See Lindsey, 888 N.E.2d
at 322.
Conclusion
In sum, we affirm the post-conviction court’s denial of Lautenschlager’s petition
for post-conviction relief.
Affirmed.
BAILEY, J., and BARNES, J., concur.
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