Clay R. Firestone 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
FILED
Sep 13 2012, 9:17 am
establishing the defense of res judicata,
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ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
J. MICHAEL SAUER MONIKA PREKOPA TALBOT
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CLAY R. FIRESTONE, )
)
Appellant-Petitioner, )
)
vs. ) No. 32A01-1201-PC-32
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Karen M. Love, Judge
Cause No. 32D03-0606-PC-3
September 13, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Clay Firestone appeals the post-conviction court’s denial of his petition for post-
conviction relief. We affirm and remand with instructions.
ISSUES
Firestone presents one issue for our review, which we restate as:
I. Whether Firestone received effective assistance of trial counsel.
In addition, we raise sua sponte:
II. Whether the trial court erred when it failed to attach the habitual offender
enhancement to a specific conviction.
FACTS AND PROCEDURAL HISTORY
In 2004, Firestone was charged with numerous offenses based upon an incident in
January 2004 in which S.W. was sexually attacked by Firestone and his cousin, Bradley
Griffin. Following a jury trial, Firestone was found guilty of rape and criminal deviate
conduct, both as B felonies. He was also found to be an habitual offender. On direct
appeal, this Court affirmed Firestone’s convictions. See Firestone v. State, 838 N.E.2d
468 (Ind. Ct. App. 2005).
In 2006, Firestone filed a pro se petition for post-conviction relief claiming
ineffective assistance of trial counsel. This petition was amended by counsel in July
2009, and a hearing was held on the amended petition on October 4, 2011. On December
30, 2011, the court issued an order denying Firestone’s petition. This appeal ensued.
DISCUSSION AND DECISION
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Firestone appeals from a negative judgment, and, to the extent his appeal turns on
factual issues, he 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 v. State, 753 N.E.2d 591, 597 (Ind. 2001). Thus, we will disturb the decision
of the post-conviction court only if the evidence is without conflict and leads only to a
conclusion contrary to the result of the post-conviction court. Id.I. ASSISTANCE OF COUNSEL
Firestone contends that he received ineffective assistance of trial counsel. Because
he did not raise this issue in his direct appeal, see Firestone, 838 N.E.2d at 470, it is
available to him in post-conviction proceedings. See Woods v. State, 701 N.E.2d 1208,
1216 (Ind. 1998) (holding that ineffective assistance of trial counsel may be raised on
direct appeal, but if it is not, it is available in post-conviction proceedings irrespective of
nature of issues claimed to support competence or prejudice prongs).
In general, claims of ineffective assistance of counsel are governed by the familiar
two-part standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). A defendant is required to establish both (1) that
counsel’s performance was deficient and (2) that counsel’s deficient performance
prejudiced the defendant. Johnson v. State, 948 N.E.2d 331, 334 (Ind. 2011), cert.
denied, 132 S. Ct. 1575, 182 L. Ed. 2d 194 (2012). The deficient performance prong
requires a showing that counsel’s representation fell below an objective standard of
reasonableness. Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010). The prejudice
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prong requires a showing that counsel’s errors were so serious as to render the result of
the trial unreliable. Id. Counsel’s performance is presumed effective, and a defendant
must offer strong and convincing evidence to overcome this presumption. Id. Moreover,
failure to satisfy either prong of the two-part test will cause the defendant’s claim to fail.
Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008). If we can easily dispose of an
ineffective assistance claim based upon the prejudice prong, we may do so without
addressing whether counsel’s performance was deficient. Id.First, Firestone alleges that his trial counsel was ineffective for failing to object or
otherwise take steps to prevent the jury from hearing certain references to his unrelated
charges and periods of incarceration. Specifically, one of the detectives in the case
testified at trial, without objection, that a branch of the Indianapolis Police Department
creates photo line ups of people that are incarcerated. He went on to explain that the
computer pulls pictures of people from its database that look similar to the suspect in
order to create the line up. The detective testified that a line up that included Firestone
was created “because he’s been incarcerated, or he had been incarcerated before at that
jail.” Trial Tr. p. 295. In addition, State’s Exhibit 18, which was admitted at trial
without objection, is the photo line up that was created to include Firestone’s picture, and
contains the words “Indianapolis Police Department” across the top of the page. Finally,
State’s Exhibit 19 is an audio recording of the police interview with Firestone. This
exhibit was also admitted without objection. Each juror was given a transcript of the
interview, and the recorded interview was played for the jury. Exhibit 19 included
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statements by the detective that they were at the Marion County jail with Firestone who
was currently in custody with other cases pending. See id. at 309, 318.
At the post-conviction hearing, Firestone’s trial counsel testified that he recalled
very little information from Firestone’s trial and that he would normally seek to exclude
such evidence. Indeed it does appear that an objection probably would have been granted
by the trial court with regard to this evidence. However, Firestone’s counsel may have
prudently determined not to object to the detective’s testimony regarding Firestone’s
prior incarceration and to the photo line up presented in Exhibit 18 so as not to call undue
attention to the information. See, e.g., Benefield v. State, 945 N.E.2d 791, 799-800 (Ind.
Ct. App. 2011) (determining that counsel had strategic reason for decision not to object to
evidence because objection may have been more damaging than evidence).
In addition, counsel’s failure to object to the admission of Exhibit 19 containing
Firestone’s statement could very well have been a matter of strategy. By not objecting to
Exhibit 19, counsel refrained from drawing unwanted attention to the mere mention of
Firestone’s incarceration and instead accomplished the more important task of getting
Firestone’s version of events, in which he denied any physical contact with S.W., in front
of the jury. Although Firestone did eventually testify in his own defense, this statement
was already admitted so that he could weigh his options at the point in trial when he
would have to decide whether to testify. Further, by allowing Exhibit 19 into evidence
and by testifying, Firestone was able to twice deny wrongdoing to the jury.
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Firestone also argues that his trial counsel knew about the photo line up and the
recorded interview prior to trial and therefore could have filed motions to redact and/or
motions in limine with regard to these evidentiary items. In assigning this knowledge to
his trial counsel, Firestone does not direct us to any testimony or evidence in support of
his claim. Moreover, based upon our analysis of resulting prejudice, counsel’s pretrial
knowledge is of no moment.
With regard to the prejudice prong, the evidence reveals that the references to
Firestone’s criminal history were extremely brief and vague. Additionally, the State did
nothing to emphasize the evidence of Firestone’s criminal history and the jury received
no information as to the nature of the previous charges. Further, the jurors had just heard
testimony that the police department creates photo line ups so the fact that the line up
contained the words “Indianapolis Police Department” should not have caused undue
concern. Furthermore, the State’s evidence was compelling. S.W. testified
unequivocally that while she was held down by Griffin, Firestone inserted his penis into
her vagina against her will. Firestone then, against S.W.’s will, inserted his penis into her
mouth and later again inserted his penis into her vagina. Firestone has not met his burden
of showing that counsel’s errors rendered the result of his trial unreliable.
Next, Firestone asserts that he was prejudiced by his trial counsel’s failure to
object to or otherwise attempt to prevent the jury from hearing evidence of the possibility
that a date rape drug had been administered to S.W. On this issue, Firestone presents no
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argument as to his counsel’s performance but rather focuses solely on the prejudice prong
of the two-part standard.
At trial, State’s Exhibit 24 was admitted by stipulation. Exhibit 24 is a lab report
showing the results of testing on S.W.’s urine sample using a date rape drug panel. The
results were negative for a wide range of drugs except the stimulant Phentermine, which
was due to a weight loss medication taken by S.W. The State also presented the
testimony of the emergency room nurse. She testified that she is a forensic nurse
examiner in the sexual assault program at the hospital as well as the coordinator of the
program. The nurse testified that S.W. reported feeling more drunk than normal,
vomiting numerous times, and being nauseous, dizzy, and weak. She explained that the
symptoms suffered by S.W. can be caused by “date rape drugs” or “drugs used to
facilitate sexual assault” being added to a drink to speed up the effects of alcohol. Trial
Tr. p. 384. The nurse further testified that date rape drugs usually leave the body within
eight to twelve hours, or sooner if the person vomits or urinates. The nurse noted that
S.W. had indicated she had urinated and vomited several times between the time of the
assault and her visit to the emergency room and that the assault had occurred at least
fourteen hours prior to S.W. visiting the emergency room.
As to the prejudice Firestone alleges he suffered due to the admission of this
evidence, we note there was never any testimony that S.W. had probably been given a
date rape drug. Although the nurse testified that some of S.W.’s complaints were like
those the nurse had observed in others who had been drugged, State’s Exhibit 24 was
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negative for any date rape drugs in S.W.’s system. Moreover, on cross-examination by
Firestone’s trial counsel, the nurse confirmed that the tests on S.W.’s urine sample were
negative for all the drugs on the date rape drug panel except the stimulants contained in
the diet drug S.W. had been taking. The nurse also admitted on cross-examination that it
was possible that the symptoms S.W. experienced could have been caused by something
other than a date rape drug. During his testimony, Firestone stated that he had never seen
a date rape drug, did not discuss date rape drugs with Griffin, and did not see Griffin put
anything into S.W.’s drink. Finally, the State’s evidence was strong, and S.W.’s
testimony was unequivocal. Firestone has failed to fulfill his burden of showing
prejudice to the extent that the outcome of his trial would have been different.
II. HABITUAL OFFENDER ENHANCEMENT
We raise, sua sponte, the issue of whether the trial court erred when it failed to
attach the habitual offender enhancement to a specific conviction in sentencing Firestone.
The trial court sentenced Firestone to eighteen years on his conviction of rape (Count I),
eighteen years on his conviction of criminal deviate conduct (Count III), to be served
consecutively, and twenty-eight years for his adjudication as an habitual offender. See
Appellant’s App. in Direct Appeal p. 4; Trial Tr. pp. 741-42.
In imposing the habitual offender enhancement, the trial court did not specify
which conviction it was enhancing. As we have previously noted, “when defendants are
convicted of multiple offenses and found to be habitual offenders, trial courts must
impose the resulting penalty enhancement on only one of the convictions and must
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specify the conviction so enhanced.” Davis v. State, 843 N.E.2d 65, 67 (Ind. Ct. App.
2006) (citing McIntire v. State, 717 N.E.2d 96, 102 (Ind. 1999)). Failure to specify
requires remand to the trial court to correct the sentence with regard to the habitual
offender enhancement. Id. Thus, the omission here constitutes error for which remand is
required.
CONCLUSION
Firestone has not shown such prejudice as would render the result of his trial
unreliable. Therefore, we affirm the post-conviction court’s denial of relief.
However, we remand to the post-conviction court with instructions to assign the
habitual offender enhancement to one of Firestone’s convictions.
Affirmed and remanded with instructions.
NAJAM, J., and PYLE, J., concur.
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