Dannie Engram v. State of Indiana ( 2012 )

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:
JOHN PINNOW GREGORY F. ZOELLER
Greenwood, Indiana Attorney General of Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
FILED
Nov 20 2012, 9:19 am
IN THE CLERK
of the supreme court,
court of appeals and
tax court
COURT OF APPEALS OF INDIANA
DANNIE ENGRAM, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1204-PC-309
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila A. Carlisle, Judge
The Honorable Stanley E. Kroh, Master Commissioner
Cause No. 49G03-0607-PC-141347
November 20, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Dannie Engram was convicted, following a jury trial, of murder,1 a felony, and
aggravated battery,2 a Class B felony. His convictions were affirmed on direct appeal,
and thereafter, he filed a petition for post-conviction relief (“PCR”). Engram now
appeals the denial of his PCR petition, contending that he was denied the effective
assistance of trial counsel when his attorney failed to call three witnesses to testify that he
was not at the scene when the shooting occurred.
We affirm.3
FACTS AND PROCEDURAL HISTORY
In Engram v. State, 893 N.E.2d 744, 745-46 (Ind. Ct. App. 2008), trans. denied, a
panel of this court affirmed Engram’s convictions for the murder of Jasmine Rice
(“Rice”) and the aggravated battery of Kalin Kelley (“Kelley”).4 In that opinion, we
generally set out the facts as follows. Engram was arrested in 2004 after a traffic stop,
during which he was found to be driving while his license was suspended. At the time of
the stop, Engram informed the officer that he possessed a licensed .45-caliber handgun.
Because of the arrest, the police officers took possession of Engram’s gun. Pursuant to
department policy, police had the weapon test-fired and recorded the results in the
National Integrated Ballistics and Identification Network (“2004 ballistics test”).
1
See Ind. Code § 35-42-1-1.
2
See Ind. Code § 35-42-2-1.5.
3
We commend the trial court on its thorough findings, which greatly facilitated our appellate
review.
Documents in the record before us spell Kelley’s name as “Kelly.” In this opinion, we use the
4
spelling that Kelley himself gave during his testimony at Engram’s trial, “K-e-l-l-e-y.” Tr. at 605.
2
The events in question occurred between June 30, 2006 and July 1, 2006. 5 About
10:00 p.m. on the night of June 30, Rice’s son, HaShim Rice (“HaShim”), who was ten or
eleven years old at the time, was outside shooting firecrackers when a man named Mark
Buggs (“Buggs”) walked by. Buggs threw a firecracker at HaShim’s older sister,
Jasmine Rice (“Jasmine”),6 and pushed HaShim. HaShim called his father, who arrived
on the scene and began arguing with Buggs. The argument escalated into a physical
altercation before Rice and Buggs were separated. While the men fought, Jasmine also
fought with a girl named Kendra Gaddie (“Gaddie”), who was the daughter of Kim Terry
(“Terry”). Later in the evening, at a local convenience store, Metia Manna (“Manna”),
Rice’s girlfriend and the mother of HaShim and Jasmine, also quarreled with Buggs
about the firecracker incident.
In the early morning hours of July 1, 2006, Manna confronted Terry concerning
the fight their daughters Jasmine and Gaddie engaged in during the firecracker incident.
Rice, Buggs, Kelley, and others were also on the scene. The encounter escalated to the
point that Terry hit Manna in the head with a stick, Rice pushed Terry, Terry hit Rice
with a stick, and Rice punched Terry, who fell to the ground. Seeing all of this, Buggs
jumped on Rice’s back, and the two began to fight. Kelley tried unsuccessfully to break
up the fight.
5
The record before us reveals that the underlying events occurred on June 30 and July 1, 2006
and not June 6 and June 7, 2006, which are the dates provided in this court’s opinion on direct appeal and
in the post-conviction court’s findings and conclusions. Tr. at 397, 428, 459. See Engram v. State, 893
N.E.2d 744, 745 (Ind. Ct. App. 2008); Appellant’s PCR App. at 55.
6
Both father and daughter are named Jasmine Rice.
3
The fight between Buggs and Rice moved into the street. Witnesses reported
seeing a light-skinned, heavyset man with braids or dreadlocks trying to pull Buggs off of
Rice. Manna heard Buggs tell someone to shoot Rice. Several shots were fired, but no
one saw the shooting. The group then scattered. When officers from the Indianapolis
Metropolitan Police Department (“IMPD”) arrived, they found Rice face down on the
ground; he had been shot four times with a .45-caliber weapon. Kelley was also injured
on the scene; he had been shot in the lower abdomen near his hip. Rice died from his
gunshot wounds, which had been inflicted at close range, between one and two feet.
Kelley recovered after receiving medical treatment.
On August 7, 2006, the State charged Engram with the murder of Rice, the
attempted murder of Kelley, and the aggravated battery of Kelley, and the trial court
issued a warrant for Engram’s arrest. The charges and warrant were based on a probable
cause affidavit of an IMPD detective, who swore that Manna had identified Engram as
the shooter.7 On August 17, 2006, the trial court appointed Public Defender Ray
Casanova (“Casanova”) as Engram’s counsel.
On October 17, 2006, the State filed a notice of intent to admit evidence that
Engram, at the time of a 2004 arrest, had been in possession of the same caliber of
weapon that had been used to kill Rice. Firearms testing revealed that casings and bullets
from the 2006 crime scene matched the signature obtained from the 2004 ballistics test.
The trial court granted the State’s motion to admit the ballistics evidence after an
7
On direct appeal, our court noted that Manna had originally identified a photograph of Tori
Daniels, a suspect in another shooting from that night, as the gunman who shot Rice and Kelley. Kelley
testified that he identified Engram’s photograph as resembling the shooter in this case but that he could
not identify Engram as the shooter. Engram v. State, 893 N.E.2d 744, 746 n.1 (Ind. Ct. App. 2008).
4
evidentiary hearing. On October 26, 2006, Casanova filed a motion, on Engram’s behalf,
to admit defendant to bail. During a hearing on the motion, Casanova objected to alleged
deficiencies in the probable cause affidavit that led to Engram’s arrest. The trial court
denied Engram’s motion.
Casanova filed a motion to suppress the results of Engram’s 2004 ballistics test.
And on June 14, 2007, he filed a motion to dismiss the charges against Engram or, in the
alternative, to suppress the 2004 ballistics test results. After an evidentiary hearing and
supplemental briefing by both parties, the court denied both motions.
Following a jury trial on December 10 and 11, 2007, a jury acquitted Engram of
the attempted murder of Kelley but found him guilty of the murder of Rice and the
aggravated battery of Kelley. The trial court sentenced Engram to fifty-five years for
murder and ten years for aggravated battery, to be served consecutively, for an aggregate
sentence of sixty-five years. Engram, 893 N.E.2d at 746.
On direct appeal, Engram’s appellate counsel raised two issues, namely, that the
trial court abused its discretion when it denied his motion to dismiss, and that the trial
court abused its discretion when it admitted into evidence the results of the 2004 ballistics
test from the gun found in Engram’s possession during the 2004 traffic stop. A panel of
this court affirmed Engram’s convictions.
On October 29, 2009, Engram filed, pro se, his PCR petition alleging that: (1)
Casanova was ineffective in failing to present a defense, file a notice of alibi, and call
witnesses to testify on his behalf; (2) appellate counsel was ineffective because, by failing
to communicate with Engram during the course of preparing his appeal, the appropriate
5
issues were not raised on appeal; and (3) the trial court abused its discretion in “denying
Engram’s motion to dismiss and in admitting results of ballistics test over objection.”
Appellant’s App. at 56-57.8 On April 4, 2011, attorney John Pinnow filed his appearance
as Engram’s PCR counsel.
During the July 19, 2011 hearing on Engram’s PCR petition, the trial court heard
testimony from Engram, Casanova, and from the three potential witnesses—Buggs;
Shericka Hunter (“Hunter”), the mother of Buggs’s daughter and the cousin of Terry; and
Gaddie, Terry’s daughter. Thereafter, the post-conviction court concluded that Engram’s
trial counsel Casanova was not ineffective. The PCR court denied Engram’s request for
post-conviction relief.9
The post-conviction court’s judgment, consisting of twenty-two pages of findings
of fact and conclusions, concluded that Casanova was not deficient because the decision
of what witnesses to call is one of trial strategy, and nevertheless, Engram “failed to
prove a reasonable probability that the outcome of the trial would have been more
favorable if Hunter, Buggs, and Gaddie had been called as defense witnesses at trial.”
Appellant’s PCR App. at 71, 72.
8
References to the following documents will be cited as follows: the 2008 trial transcripts as Tr.;
the 2008 Appellant’s Appendix (on direct appeal) as Appellant’s App.; the 2012 post-conviction relief
transcript as PCR Tr.; and the 2012 Appellant’s PCR Appendix as Appellant’s PCR App. All references
to the parties’ briefs will be to those filed in in connection with the appeal of the denial of post-conviction
relief.
9
As a footnote to those findings, the post-conviction court stated, “Petitioner did not present
evidence in support of claims [(2)] and [(3)] at his evidentiary hearing, nor did he mention those claims in
his proposed findings and conclusions, thus appears that Engram has essentially abandoned said claims.”
Appellant’s App. at 57 n.1. Nevertheless, the post-conviction court entered its conclusion that “Engram’s
vague claim of ineffective assistance of [appellate] counsel, said claim fails to provide any basis for
relief.” Id. at 74.
6
Casanova represented Engram throughout the pre-trial period, the jury trial, and
sentencing proceedings. As part of its extensive findings, the PCR court found that
Casanova’s court filings included: a motion for discovery of crime scene video; various
notices of deposition of witnesses; a motion to admit Engram to bail and a memorandum
of law in support thereof; notice of discovery compliance; numerous supplemental
notices of discovery compliance; a request for production of documents from a non-party;
a motion to suppress the ballistics evidence that linked Engram to the murder weapon; a
motion to dismiss and a memorandum of law in support thereof; a final witness list,
which listed nine potential witnesses including Hunter and Buggs; a request for an order
to inspect and test all physical evidence, including all ballistics and firearms evidence;
and a motion for additional time to conduct voir dire or, in the alternative, a motion that
the court ask defendant’s tendered voir dire questions. Appellant’s PCR App. at 57-60.
The PCR court also found that Casanova: vigorously represented Engram “at the
let to bail hearing,” id. at 57 (by presenting an opening statement and the testimony of
fourteen witnesses, by cross-examining the State’s witness, and by giving a closing
argument); vigorously represented Engram at the hearing on the motion to suppress and
motion to dismiss (by presenting an opening argument and the testimony of four
witnesses); successfully litigated a motion to sever Engram’s trial from the trial of co-
defendants Buggs and Terry; and successfully moved for a separation of witnesses prior
to trial. Id. Describing Casanova’s testimony at the PCR hearing, the PCR court noted:
Mr. Casanova summarized that the defense in this case [at trial] was that
Engram did not commit the offense, that he was not present, and that it was
a misidentification. Mr. Casanova testified that he and his client had talked
7
about an alibi, but Engram could not establish where he was. Mr. Casanova
also testified that Engram’s father and the mother of Engram’s children
[“Turner”] were the only two people disclosed to Casanova who could
possibly identify where Engram may have been at the time of the crime, but
they could not in fact establish his whereabouts.
Id. at 62. Engram appeals the denial of his PCR petition only on the basis of the
ineffective assistance of his trial counsel Casanova. Additional facts will be supplied as
appropriate.
DISCUSSION AND DECISION
Post-conviction proceedings are civil in nature, and petitioners bear the burden of
proving their grounds for relief by a preponderance of the evidence. Ind. Post–
Conviction Rule 1(5); McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012). On
appeal from the denial of a PCR petition, a petitioner stands in the position of one
appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497, 498 (Ind. 2011).
The appellate court must accept the post-conviction court’s findings of fact and may
reverse only if the findings are clearly erroneous. McCullough, 973 N.E.2d at 74. On
review, we will not reverse the judgment unless the evidence as a whole unerringly and
unmistakably leads to a conclusion opposite that reached by the post-conviction court.
Id.
Engram argues that he did not receive effective assistance of trial counsel.
Specifically, he contends that, because his theory of defense was that he had been
misidentified as the shooter, trial counsel was ineffective for failing to call defense
witnesses Buggs, Hunter, and Gaddie, who would have testified that Engram was not
present at the scene of the shooting. The post-conviction court found that Engram was
8
not denied effective assistance of trial counsel because Casanova’s decision not to call
these witnesses was strategic, and Engram was not prejudiced by Casanova’s decision.
The Sixth Amendment to the United States Constitution protects the right to
counsel and the right to effective assistance of counsel. “When considering a claim of
ineffective assistance of counsel, a ‘strong presumption arises that counsel rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.’” McCullough, 973 N.E.2d at 74-75 (quoting Morgan v. State,
755 N.E.2d 1070, 1073 (Ind. 2001)). “[C]ounsel’s performance is presumed effective,
and a defendant must offer strong and convincing evidence to overcome this
presumption.” Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002).
Engram has a very heavy burden to overcome in substantiating his claims that he
received ineffective assistance of trial counsel when Casanova failed to call Buggs,
Hunter, and Gaddie as witnesses. To establish ineffective assistance of counsel, a
defendant must show: (1) counsel’s performance fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that but for counsel’s ineffective
performance, the result would have been different. McCullough, 973 N.E.2d at 74.
Failure to satisfy either prong will cause the claim to fail. Id. at 75.
“[W]e evaluate the competence of counsel by examining whether counsel’s
performance, as a whole, fell below ‘an objective standard of reasonableness’ based on
‘prevailing professional norms.’” Azania v. State, 738 N.E.2d 248, 251 (Ind. 2000)
(quoting Woods v. State, 701 N.E.2d 1208, 1211 (Ind. 1998), cert. denied, 528 U.S. 861(1999)) (emphasis added). That is, effective assistance of counsel is “determined
9
according to the whole of the lawyer’s performance and not just on ‘the strategy and
performance at issue.’” Id. (quoting Butler v. State, 658 N.E.2d 72, 79 (Ind. 1995)).
“Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do not
necessarily amount to ineffective counsel unless, taken as a whole, the defense was
inadequate.” Id. (quoting Davis v. State, 675 N.E.2d 1097, 1100 (Ind. 1996)).
After assessing the State’s case as weak, Casanova litigated a request for bail, he
filed and argued a motion to suppress the ballistic evidence that tied Engram to the gun
used on the night in question and a motion to dismiss, and he successfully severed
Engram’s trial from that of co-defendants Buggs and Terry. Appellant’s PCR App. at 26.
Casanova also litigated a motion in limine to keep out certain evidence. Appellant’s App.
at 243-49. During the PCR hearing, Casanova testified that the motion in limine was
filed, in part, to ensure that no reference would be made at Engram’s trial to the fact that
Buggs’s theory of defense at his trial was that Engram was the shooter. PCR Tr. at 18.
Casanova interviewed numerous witnesses and investigated, to no avail, Engram’s claim
that he had an alibi for the time of the crime. PCR Tr. at 8. He also prepared and
presented a defense that Engram had been misidentified as the shooter and “presented a
proficient, thorough, and zealous closing argument consistent with the theory of defense.”
Appellant’s PCR App. at 60 (citing Tr. at 887-904). Throughout the pre-trial, trial, and
sentencing, Casanova kept Engram informed as to the progress in the case and answered
any questions Engram had. PCR Tr. at 18-19. Our examination of the record before us
convinces us that Casanova’s performance as a whole cannot credibly be claimed to have
fallen below an objective standard of reasonableness.
10
Additionally, even if failure to call these three witnesses could be deemed to be
error, Engram has offered no real evidence that he was prejudiced by the omission of this
testimony. On appeal, Engram contends that:
First, the State’s case against Engram was based on his possession of the
murder weapon, the .45 caliber Smith and Wesson handgun, two years
before the shooting and Manna’s identification of him as the shooter. The
State presented no evidence Engram possessed that handgun at the time of
or in close proximity to the shooting. Manna only identified Engram after
she initially identified Tori Daniels as the shooter and it was so dark out she
did not see the gun in the hands of the shooter. Second, Buggs’ testimony
he took a gun from his grandmother’s house and it fell out of his pocket
during the fight suggests he and not Engram took the murder weapon to the
scene. Third, the post-conviction court should not be sure the right man
was prosecuted for the shooting. Manna initially identified Tori Daniels as
the shooter and said the shooter got out of a blue 1966 Cadillac. Kalin
Kell[e]y described the shooter as having dreads or braids. Daniels’
brother’s blue 1966 Cadillac was found ten to twelve blocks away. A
contemporaneous photograph of Daniels showed he had dreadlocks and a
beard. Engram’s case like that in Raygoza had another suspect who
resembles the description of the shooter. Fourth, the testimony of Buggs,
Hunter and Gaddie supports the trial defense Engram was not present at the
scene of the shooting. The trier of fact as in Raygoza could have chosen to
believe their testimony in conjunction with the weakness of the State’s case
and concluded the State did not prove Engram’s guilt beyond a reasonable
doubt.
Appellant’s PCR Br. at 12-13 (citations to the record omitted).
Engram’s argument regarding prejudice relies almost entirely on evidence that was
before the jury at trial. The jury heard that Manna initially identified Daniels as the
shooter not once, but twice. Tr. at 492-94. Right after making the second identification,
Manna stated that she was one hundred percent sure that the person she identified—
Daniels—was the shooter. Id. at 495. The jurors also heard testimony that it was dark in
the area of the shooting. Id. at 472. By Engram’s own account, “The State presented no
11
evidence Engram possessed that handgun at the time of or in close proximity to the
shooting.” Appellant’s Br. at 13. Engram’s request that we find prejudice based on
evidence, most of which was before the jury at trial, is in essence a request that we
reweigh the evidence on appeal. On appeal, we may not reweigh the evidence or reassess
the credibility of the witnesses. Rowe v. State, 912 N.E.2d 441, 443 (Ind. Ct. App. 2009),
aff’d on reh’g, trans. denied (2010). Engram has failed to persuade us that there is a
reasonable probability that the result of his trial would have been different but for the
absence of the testimony of Engram’s brother and original co-defendant Buggs, Buggs’s
girlfriend Hunter, and Gaddie, the daughter of his original co-defendant Terry.
We agree with the PCR court’s well-reasoned conclusion that Engram was
provided with effective assistance of trial counsel and was not prejudiced by Casanova’s
decision to keep Buggs, Hunter, and Gaddie from testifying, which provided as follows:
Trial counsel’s ultimate decision not to call Hunter and Buggs as
witnesses is wholly one of strategy that was made in the best interests of his
client. Mr. Casanova testified that both Hunter and Buggs described the
shooter’s car and hairstyle as consistent with Engram’s car and hairstyle.
Mr. Casanova testified that this was evidence that the State did not
otherwise have, and he did not want to risk having Hunter and Buggs
strengthen the State’s case against Engram, especially because, in trial
counsel’s opinion, the State’s identification evidence was weak. Mr.
Casanova added that Buggs’ accounts regarding what had occurred were
inconsistent, thus Mr. Casanova had concerns about the uncertainty of what
he might testify to if called as a witness. This Court declines to second
guess these well-reasoned strategic decisions of trial counsel. Mr.
Casanova also testified that Engram was in agreement with not calling
these witnesses when these risks were discussed with him. [Engram] has
failed to prove deficient performance here.
[Engram] has also failed to prove a reasonable probability that the
outcome of the trial would have been more favorable if Hunter, Buggs, and
Gaddie had been called as defense witnesses at trial. In addition to the risks
12
that the testimony of Hunter and Buggs would have harmed Engram as
discussed supra, the value of these witnesses’ testimony would have been
minimal. Buggs is Engram’s brother and Hunter had a child with Buggs;
their close relationships with Engram would likely have diminished the
credibility of their testimony that they did not see Engram at the scene of
the shooting. Further Hunter testified that she did not see who got out of
the car, that she went inside several minutes before gunshots were fired,
and that she did not witness the shooting. Hunter reluctantly admitted that
she does not know if Engram was outside when the shots were fired. And
while Buggs’ post-conviction testimony was that Tori Daniels was the
shooter, he did not even mention that in his testimony of the events at
Engram’s sentencing hearing. Further, when asked if he saw Tori Daniels
arrive, Buggs answered “Naw” and then said that he “sort of did” but that
he was still fighting with Rice at that time. Lastly, Kendra Gaddie’s post-
conviction testimony regarding the shooter was that she could not really see
his face and that she does not know who the shooter was. But then she
somewhat inconsistently answered “No” when asked if she saw Engram at
the time of the shooting. If she did not see the shooter’s face then it seems
to follow that she could not testify whether or not the shooter was Engram.
Ms. Gaddie added that the only street light was down the street and it was
difficult to see.
In light of the extensive attack and impeachment by Mr. Casanova of
the State’s identification evidence at trial, see e.g. T.R. 491-519 (cross
examination of Mettia Manna), T.R. 630-42 (cross examination of Kalin
Kell[e]y), T.R. 887-904 (closing argument), [Engram] has failed to show a
reasonable probability that the equivocal testimony of Hunter, Buggs, and
Gaddie would have resulted in a more favorable outcome for Engram.
Thus having failed to prove prejudice here as well, [Engram] has failed to
meet his burden of proof and the claim of ineffective assistance of trial
counsel fails.
Id. at 71-73.
To support his theory that trial counsel was ineffective, Engram cites to Raygoza
v. Hurlick, 474 F.3d 958, 963-65 (7th Cir. 2007)—a case in which the Court of Appeals
for the Seventh Circuit granted Raygoza’s writ of habeas corpus on the basis that his trial
counsel was ineffective for failing to investigate his alibi and for calling only one of the
ten alibi witnesses who were available to testify. We find Raygoza unpersuasive under
13
the instant facts. In Raygoza, unlike in this case, petitioner showed that an investigation
of alibi witnesses would have turned up nine additional witnesses, some related and some
not related to the defendant, who all would have told a consistent story about where the
defendant was the entire night of the crime. Raygoza, 474 F.3d at 964. Here, Casanova’s
investigation of Engram’s alibi revealed that the two alibi witnesses he had named—his
father and Turner, the mother of Engram’s children—could not vouch for Engram’s
whereabouts on the night in question. Additionally, Buggs, Hunter, and Gaddie, who
each were either co-defendants or related to a co-defendant and potentially seen as
biased, could only have testified that they did not see Engram at the scene of the
shooting. Yet, even this testimony could have been undermined by Hunter’s admission
that she was not outside at the time of the shooting, and witnesses’ inconsistent testimony
of the description of the car that arriving on the scene right before the shooting began—
Buggs said it was a baby blue 1967 Cadillac, Hunter said it was a dark-colored medium-
size car, and Gaddie said it was a dark-blue small car. PCR Tr. at 24, 30-34, 38. Unlike
in Raygoza, where the absence of nine nonrelated witnesses telling a consistent version of
events likely had an impact on the outcome of the case, here, given the other evidence
presented, the failure to present the testimony of Buggs, Hunter, and Gaddie likely had no
effect on the outcome of the trial.
Based on the foregoing, we conclude that Engram was not denied the effective
assistance of trial counsel. Therefore, we affirm the post-conviction court’s denial of
Engram’s petition for relief. Affirmed.
NAJAM, J., and MAY, J., concur.
14