Cameron Williams 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.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
CAMERON WILLIAMS GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
FILED
Nov 07 2012, 9:35 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
CAMERON WILLIAMS, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A04-1109-PC-502
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven R. Eichholtz, Judge
The Honorable Peggy Ryan Hart, Master Commissioner
Cause No. 49G20-0706-PC-116679
November 7, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Cameron Williams appeals the denial of his petition for post-conviction relief. He
presents many issues for our consideration, which we consolidate1 and restate as:
1. Whether the post-conviction court abused its discretion when it denied
Williams’ request to subpoena two witnesses;
2. Whether Williams received ineffective assistance of trial counsel; and
3. Whether Williams received ineffective assistance of appellate counsel.
We affirm.
FACTS AND PROCEDURAL HISTORY
The facts of Williams’ conviction are outlined in our decision on his direct appeal:
On June 20, 2007, Leonard Hayes, a security guard working at a
building at 3737 North Meridian Street in Indianapolis, observed Williams fire
a handgun into the air. Williams was standing in front of the building when he
fired the shots, and, at the time, there were several people sitting outside an
adjacent building. Hayes helped those people inside to safety, and Hayes then
followed Williams towards Pennsylvania Street. Hayes called police, who
arrived a short time later and arrested Williams.
The State charged Williams with two counts of carrying a handgun
without a license, unlawful possession of a firearm by a serious violent felon,
criminal recklessness, and being an habitual offender. The State dismissed the
first two counts before trial; a jury convicted him on the unlawful possession
and criminal recklessness charges; and Williams admitted to being an habitual
offender. The trial court sentenced Williams to an aggregate twenty year
1
Williams presents two issues we decline to address in this opinion. First, Williams argues the post-conviction
court erred when it found: “Any factual allegations regarding Mr. Zapata made in either of the two petitions,
but not addressed at either of the two hearings, are deemed withdrawn.” (App. at 46 n.1.) We are unable to
address any alleged error because the record does not contain Williams’ first post-conviction petition. See
Titone v. State, 882 N.E.2d 219, 221 (Ind. Ct. App. 2008) (the appellant “has the responsibility to present a
sufficient record in order for this court to conduct an intelligent review of the issues.”). In addition, Williams
argues the trial court abused its discretion when admitting photographs of a gun. As this alleged error was
available on direct appeal, it cannot be raised in a post-conviction petition. See Lindsey v. State, 888 N.E.2d
319, 323 (Ind. Ct. App. 2008) (issues available on post-conviction limited to ineffective assistance of counsel
and issues unavailable to petitioner on direct appeal that resulted in fundamental error), trans. denied.
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sentence.
Williams v. State, No. 49A05-0712-CR-704 (Ind. Ct. App. Aug. 6, 2008). On direct appeal,
Williams argued the State did not present sufficient evidence he committed criminal
recklessness and he was entitled to a new sentencing hearing because the trial court did not
ask him if he had any corrections to the presentence investigation report. We affirmed.
Williams petitioned for post conviction relief on November 25, 2008,2 and the State
responded on January 13, 2009. Williams amended his petition on March 26, 2010. On May
7, Williams requested subpoenas for Gary Morrolf, an evidence technician who did not
testify during Williams’ trial; Anthony Zapata, Williams’ trial counsel; and Andrew Borland,
Williams’ appellate counsel. The post-conviction court granted Williams’ requests as to
Zapata and Borland, but denied his request to subpoena Morrolf. On June 11, Williams
requested the court subpoena Officer Shawn McCurdy, who was the arresting officer at the
scene of the crime. The post-conviction court also denied that request.
On June 18, 2010, and June 24, 2011, the post-conviction court held hearings on
Williams’ petition for post-conviction relief. During the first hearing, Williams appeared pro
se, but during the second, he had counsel to represent him. The post-conviction court denied
Williams’ petition on August 25, 2011.
DISCUSSION AND DECISION
Post-conviction proceedings afford petitioners a limited opportunity to raise issues
that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763
2
Williams’ original petition for post-conviction relief is not included in the record.
3
N.E.2d 441, 443 (Ind. 2002), reh’g denied, cert. denied 537 U.S. 1122 (2003). As post-
conviction proceedings are civil in nature, the petitioner must prove his grounds for relief by
a preponderance of the evidence. Id. A party appealing a post-conviction judgment must
establish that the evidence is without conflict and, as a whole, unmistakably and unerringly
points to a conclusion contrary to that reached by the post-conviction court. Id. Where, as
here, the post-conviction court makes findings of fact and conclusions of law in accordance
with Indiana Post-Conviction Rule 1(6), we do not defer to the court’s legal conclusions, but
“the findings and judgment will be reversed only upon a showing of clear error – that which
leaves us with a definite and firm conviction that a mistake has been made.” Ben-Yisrayl v.
State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation and citation omitted), reh’g
denied, cert. denied 534 U.S. 830 (2001).
1. Denial of Request for Subpoenas
When determining whether to issue subpoenas, the post-conviction court has broad
discretion, and we will reverse its decision only for an abuse of that discretion. Johnson v.
State, 832 N.E.2d 985, 994 (Ind. Ct. App. 2005), trans. denied. “An abuse of discretion has
occurred if the court’s decision is against the logic and effect of the facts and circumstances
before the court.” Id. “If the pro se petitioner requests issuance of subpoenas for witnesses
at an evidentiary hearing, the petitioner shall specifically state by affidavit the reason the
witness’ testimony is required and the substance of the witness’ expected testimony.” Ind.
Post-Conviction Rule 1(9)(b).
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Williams requested, but was denied, subpoenas for Gary Morrolf, an evidence
technician, and Officer Shawn McCurdy, who arrested Williams. In support of his request
for Morrolf’s subpoena, Williams stated:
[Morrolf] was the evidence technician who was responsible for finding
the handgun in the rear of an apartment building located above an air
conditioning unit.. [sic] Morrolf will further testify that [he] was responsible
for running tests on the handgun and had it dusted for fingerprints. Morrolf
will further testify that he did not testify at trial and that he was never deposed
by the defense prior to trial.
Evidence Technician Gary Morrolf’s testimony is required at the Post
Conviction hearing because petitioner[’]s constitutional right to confront
witnesses against him was violated when Gary Morrolf who was responsible
for finding, reviewing and preparing all the evidence in this case for trial never
testified and was never deposed prior to trial to preserve his testimony, thus
violating the Confrontation Clause protected by the Sixth Amendment of the
U.S. Constitution.
(App. at 171.) In support of his request for Officer McCurdy’s subpoena, Williams stated:
5. Ofc. Shawn McCurdy is expected to testify as follow: [sic] That he was
arresting Officer and testified at Cameron Williams [sic] trial to all evidence
that was presented at trial.
6. Ofc. Shawn McCurdy’s testimony is required for the Post-Conviction
Relief claims because he was the Witness who the State called upon to testify
concerning the evidence that was presented at trial.
(Id. at 176-77.) The post-conviction court denied both subpoena requests, finding
specifically that Officer McCurdy’s testimony “would not be relevant and probative to issues
raised in this post-conviction proceedings [sic].” (Id. at 178.)
Williams argues the post-conviction court abused its discretion when it denied the two
subpoena requests because Morrolf and Officer McCurdy’s testimonies were relevant and
probative and the denial of the subpoenas “hindered and interfered with the Pro-se, Post-
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Conviction Relief Petitioner, carrying his burden of proof by preponderance of the evidence.”
(Br. of Appellant at 19) (emphasis in original). We disagree.
While a defendant has a Sixth Amendment right to confront the witnesses against him,
the “failure of the State to call a competent witness does not deny a defendant his
constitutional right.” Beverly v. State, 543 N.E.2d 1111, 1115 (Ind. 1989). The State cannot
be compelled to call witnesses at the insistence of the accused, and a defendant has the
burden of seeing that witnesses who may have aided in his defense were called. Id. Because
Williams did not call Morrolf as a witness, Williams was not denied his Sixth Amendment
right. Therefore, the post-conviction court did not abuse its discretion when it denied
Williams’ request to subpoena Morrolf because Williams’ only argument in his request for
the subpoena implicated the violation of his Sixth Amendment rights, which we hold were
not violated.
Additionally, Williams argues the post-conviction court erred when it did not make a
finding supporting its denial of his request to issue a subpoena for Morrolf. P-C.R. 1(9)(b)
states, in relevant part:
If the pro se petitioner requests issuance of subpoenas for witnesses at an
evidentiary hearing, the petitioner shall specifically state by affidavit the
reason the witness’ testimony is required and the substance of the witness’
expected testimony. If the court finds the witness’ testimony would be
relevant and probative, the court shall order that the subpoena be issued. If the
court finds the proposed witness’ testimony is not relevant and probative, it
shall enter a finding on the record and refuse to issue the subpoena.
As there is only one reason the post-conviction court could deny Williams’ request, that is,
the testimony would be irrelevant and not probative, we conclude the post-conviction court
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implicitly made that finding in its order denying Williams’ request for subpoena. See Perdue
Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind. 1997) (the appellate court presumes the
lower court knows and correctly applies the law).
Nor did the post-conviction court abuse its discretion when it denied Williams’
request to subpoena Officer McCurdy. The post-conviction court found Officer McCurdy’s
testimony would not be relevant and probative. Furthermore, Williams’ proffered reason for
needing a subpoena was too vague to satisfy P-C R. 1(9)(b). Therefore, we cannot say the
post-conviction court abused its discretion when it denied Williams’ request for a subpoena
of Officer McCurdy.
2. Ineffective Assistance of Trial Counsel
We review claims of ineffective assistance of counsel under the two-part test in
Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g denied. To prevail, a claimant
must show counsel’s performance fell below an objective level of reasonableness based on
prevailing professional norms, Taylor v. State, 882 N.E.2d 777, 781 (Ind. Ct. App. 2008), and
the deficient performance resulted in prejudice. Id. “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.’” Grinstead v. State, 845
N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694). We need not consider
whether counsel’s performance fell below the objective standard if that performance would
have not changed the outcome. Strickland, 466 U.S. at 687.
7
In his amended petition for post-conviction relief, Williams alleged his trial counsel,
Anthony Zapata, was ineffective:
9A(1) Petitioner contends that he received ineffective assistance of counsel
when counsel failed to object to the admission of evidence procured by the
State through hearsay testimony (2) Petitioner[’]s trial attorney was ineffective
for not objecting to the hearsay testimony of officer Shawn McCurdy who the
State used a [sic] foundation for the admission of pictures of the evidence after
the evidence technician Gary Morrolf who was responsible for finding the
handgun, had the handgun dusted for fingerprints, took pictures of [the] crime
scene and performed other duties in preparation for trial was not available to
testify. Petitioner contends that if his trial counsel had objected to the
admission of the evidence through State[’]s witness Mark [sic] McCurdy, the
Court would have had no alternative but to sustain he [sic] objection because
the State never satisfactorily explained the absence of evidence technician
Gary Morrolf and petitioner never had an opportunity to confront and cross
examine Morrolf prior to trial. (3) Petitioner[’s] trail [sic] counsel was
ineffective for not responding and satisfying the juror question as to whether or
not the handgun had been dusted for fingerprints. ? (See TR. At page 58)
Petitioner contends that his trial counsel had in his possession, a document
from the Marion County Prosecutors office clearly stating that evidence
technician Gary Morrolf had found a ridge mark on the handgun and had it
tested for identification purposes but it was unidentifiable to any specific
person. (See Exhibit A). Petitioner contends that for his trial counsel to allow
the jury to be left guessing as to whether or not his client[’]s prints was [sic] on
the gun when trial counsel could have satisfied their question by producing the
document that was in his possession points to deficient performance and a
deliberate attempt to deprive petitioner of his right to present exculpatory
evidence in his favor at a critical state of the proceeding[.]
(App. at 122-23) (emphasis and formatting mistakes in original).
a. Fingerprint evidence
During the post-conviction hearings, Williams and his post-conviction counsel
questioned Zapata regarding these issues, and Zapata consistently stated his decisions were a
part of his trial strategy to keep the gun out of evidence and to create doubt in the jury’s mind
8
regarding identifying marks on the gun. The post-conviction court found:
The court does not consider Mr. Zapata’s tactics to have been
ineffective. Although the testing of the fingerprint card did not show that
Petitioner had touched the firearm, it did not show that he did not touch it,
either. Given the eyewitness testimony about the gloves, the gloves
themselves and Petitioner’s statement about fingerprints, putting Ofc. Morrolf
on the stand to testify about fingerprints would had [sic] had, at best, a neutral
effect on Petitioner’s defense, and at worst helped the State win the conviction.
As to failure to depose the evidence technician, failure to enter the
fingerprint report into evidence, failure to answer a jury question about
fingerprints, and failure to ask for a continuance when the evidence technician
was unavailable to testify at trial, the Court finds that trial counsel did not
make errors so serious that he was not functioning as ‘counsel’ guaranteed to
the defendant by the Sixth Amendment to the United States Constitution.
Additionally, Petitioner has failed to present any evidence sufficient to prove
the likelihood of a better outcome at trial, had trial counsel done anything
differently as to these matters. The court therefore finds that Petitioner has not
proven prejudice.
(Id. at 47-48) (emphasis in original).
In his petition and on appeal, Williams appears to argue his trial counsel was
ineffective because he did not introduce allegedly exculpatory fingerprint evidence through
the testimony of Morrolf or request a continuance when it was discovered Morrolf was not
available to testify. Zapata indicated he did not interview Morrolf, call Morrolf as a witness,
or request a continuance based on Morrolf’s absence because
if [the Prosecutors] give me a witness list and if they’re missing witnesses,
that’s in my Defendant’s favor. . . . [I]f I would have subpoenaed [Morrolf],
then [the State] would have had the gun in and then [the State] would have had
at least the identification of that document with the prints in. So our goal was
to keep the gun out as best as possible and argue the identification issue with
it.
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(Tr. at 23-24.) In the absence of fingerprint evidence, the State presented evidence Williams
had a brown work glove when he was arrested, which suggested he was wearing gloves when
the gun was fired and thus no fingerprints would be found. An eyewitness identified
Williams as the shooter. Williams has not demonstrated Zapata deviated from a consistent
trial strategy in a way that prejudiced Williams’ defense.
b. Objection
To show ineffective assistance based on failure to make an objection, a petitioner must
demonstrate that the trial court would have sustained the objection. Glotzbach v. State, 783
N.E.2d 1221, 1224 (Ind. Ct. App. 2003). The petitioner must also establish prejudice by
counsel’s failure to properly object. Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997),
reh’g denied, cert. denied 525 U.S. 1072 (1999).
Regarding Williams’ claim Zapata was ineffective because he did not object to certain
evidence introduced by the State, the post-conviction court found:
That leaves the matter of Mr. Zapata’s failure to object to the admission
of the State’s evidence at trial. At the first hearing, Petitioner asked Mr.
Zapata why he had failed to object. Mr. Zapata stated that he did not have an
independent recollection of objecting, or not objecting, to the State’s evidence
and had not yet seen a transcript of the trial. Petitioner did not specify what
evidence Mr. Zapata should have objected to, and the subject was not raised
again at the second hearing. In the absence of any evidence to support
Petitioner’s argument, the Court finds that Petitioner has failed to prove that
Mr. Zapata was ineffective for failing to object to the State’s evidence, and he
has also failed to prove how he was prejudiced by it.
(App. at 48.) Williams argues the post-conviction court’s finding is not supported by the
evidence presented, as he asked Zapata specifically about his failure to object to the State’s
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admission of Officer McCurdy’s testimony about the gun found at the scene and the
photographs of the gun. While we agree the post-conviction court’s reasoning for its finding
is erroneous, the result is nonetheless the same.
During the first post-conviction hearing, the following exchange occurred between
Williams, proceeding pro se, and Zapata:
[Williams]: Now, do you recall whether you did or not, object to the
testimony of Officer McCurdy when the State used him to admit
the photographs of the gun when you knew that he was not
testifying from personal knowledge?
[Zapata]: If believe they introduced the photographs, right? Is that what
you’re saying?
[Williams]: Yes.
[Zapata]: I don’t remember. I think I stipulated to the photographs being
introduced.
[Williams]: Okay.
[Zapata]: Which means I didn’t object I don’t think.
[Williams]: Do you know what the legal definition is of testimony when a
witness testifying under oath is not testifying from personal
knowledge about facts - -
[Zapata]: Do you mean - -
[Williams]: Excuse me?
[Zapata]: Do you mean hearsay?
[Williams]: Right
[Zapata]: Yeah. But he had personal knowledge because he saw the gun
and would have been able to introduce it through the pictures as
far as an accurate representation of what he saw when the
technician sent him to the scene.
(Tr. at 48-49.) The transcript of Williams’ trial supports Zapata’s contention that the
photographs were properly admitted as representations of what Officer McCurdy saw the
date of the crime, and thus an objection to their admission would not have been sustained.
See Ind. Evid. Rule 401 (evidence is relevant if it tends to prove or disprove a fact of
11
consequence) and Evid. Rule 901(a) (authentication of evidence is achieved by testimony
indicating the evidence offered is what is purports to be).
Therefore, while the post-conviction court erroneously found Williams did not specify
the evidence to which he alleged Zapata should have objected, the result is same – Williams
did not demonstrate Zapata was ineffective because had Zapata made an objection to the
photographs of the gun, the objection likely would not have been sustained.
3. Ineffective Assistance of Appellate Counsel
We review claims of ineffective assistance of appellate counsel using the same
standard applicable to claims of trial counsel ineffectiveness. Fisher v. State, 810 N.E.2d
674, 676-77 (Ind. 2004). The defendant must show that appellate counsel was deficient in
his performance and that the deficiency resulted in prejudice. Id. at 677. Ineffective
appellate assistance claims generally fall into three categories: (1) denial of access to an
appeal; (2) waiver of issues; and (3) failure to present issues well. Id. We employ a two-part
test to evaluate “waiver of issue” claims: (1) whether the unraised issues are significant and
obvious from the face of the record, and (2) whether the unraised issues are “clearly
stronger” than the raised issues. Id.
Because counsel has considerable discretion in choosing strategy and tactics, we
presume counsel’s assistance was adequate and all significant decisions were made in the
exercise of reasonable professional judgment. State v. Miller, 771 N.E.2d 1284, 1288 (Ind.
Ct. App. 2002), reh’g denied, trans. denied. One of the most important strategic decisions is
deciding what issues to raise on appeal. Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1998),
12
reh’g denied, cert. denied 525 U.S. 1021 (2003).
Williams argues his appellate counsel, Andrew Borland, was ineffective because
Borland did not challenge Williams’ conviction of unlawful possession of a firearm by a
serious violent felon. Regarding this issue, the post-conviction court found:
Appellate Counsel Andrew Borland testified only at the second hearing.
He was asked why he had not raised the issue of gun possession in Petitioner’s
appeal. Mr. Borland stated that he did not believe there had been a viable issue
for appeal regarding that offense. The Court agrees.
Although not alleged in either of the petitions, Mr. Borland was asked
several questions about the nature of the State’s evidence. Petitioner, now
represented by counsel, appeared to characterize the State’s evidence as being
entirely circumstantial in nature. The Court notes that the State had an
eyewitness, Leonard Hayes, who saw Petitioner fire the gun in question.
Eyewitness testimony is direct evidence, not circumstantial.
No other evidence was submitted by Petitioner to support this claim and
the Court finds that Mr. Borland did not make errors so serious that he was not
functioning as ‘counsel’ guaranteed to the defendant by the Sixth Amendment
to the United States Constitution. Nor has Petitioner proven that he was
prejudiced by Mr. Borland’s representation.
(App. at 49) (footnotes and citation omitted).
On appeal, Williams offers no argument or authority to support the premise Borland
should have raised on appeal the issue of sufficiency of the evidence to support Williams’
conviction of unlawful possession of a firearm by a serious violent felon. Therefore,
pursuant to Ind. Appellate Rule 46(A)(8)(a), Williams’ claim of ineffective assistance of
appellate counsel is waived for failure to make a cogent argument and cite to relevant
authority.
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CONCLUSION
We hold the post-conviction court did not abuse its discretion when it denied
Williams’ requests to subpoena Morrolf and Officer McCurdy because Williams did not
demonstrate either witness would provide relevant testimony. Nor has Williams
demonstrated his trial or appellate counsel was ineffective. Accordingly, we affirm the
denial of his petition for post-conviction relief.
Affirmed.
KIRSCH, J., and NAJAM, J., concur.
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