Derek Lee Morris v. State of Indiana ( 2012 )

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Apr 27 2012, 8:26 am
any court except for the purpose of
establishing the defense of res judicata,
CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DEREK LEE MORRIS GREGORY F. ZOELLER
Bunker Hill, Indiana Attorney General of Indiana
ANN L. GOODWIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DEREK LEE MORRIS, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A04-1106-PC-379
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Jr., Judge
The Honorable Amy J. Barbar, Magistrate
Cause No. 49G02-0511-PC-193247
April 27, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Derek Lee Morris (“Morris”) appeals the denial of his petition for post-conviction
relief, wherein he challenged his conviction for Child Molesting. We affirm.
Issues
Morris presents three issues for review:1
I. Whether he was denied the effective assistance of trial counsel;
II. Whether he was denied the effective assistance of appellate counsel;
and
III. Whether he was denied procedural due process in the post-conviction
proceedings.
Facts and Procedural History
On direct appeal, the Court recited the relevant facts as follows:
In August 2005, Morris spent the night at his girlfriend’s home. When his
girlfriend left for work the following morning, Morris held her thirteen year-
old daughter down by her arms and removed her clothing. He then placed his
penis inside the daughter’s vagina. After the victim told her mother what
happened, Morris was charged with Class A felony child molesting.
Morris v. State, No. 49A02-0702-CR-172, slip op. at 2 (Ind. Ct. App. Feb. 11, 2008).
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Morris’s purported issues include his assertions that the trial court abused its discretion or denied him due
process by failing to acknowledge Morris’s pre-trial letter complaining of his counsel’s deficiencies and
requesting substitute counsel, failing to sua sponte remove a juror who cried during the victim’s testimony (but
instead providing her with a tissue), and failing to ensure that Morris was tried by a racially-mixed jury. Post-
conviction procedures do not afford petitioners with a “super-appeal”; rather, the post-conviction rules
contemplate a narrow remedy for subsequent collateral challenges to convictions. Reed v. State, 856 N.E.2d
1189, 1194 (Ind. 2006). The purpose of a petition for post-conviction relief is to raise issues unknown or
unavailable to a defendant at the time of the original trial and appeal. Id. If an issue was known and available
but not raised on appeal, it is waived. Id. If an issue was raised on direct appeal, but decided adversely to the
petitioner, it is res judicata. Id. Moreover, collateral challenges to convictions must be based upon grounds
enumerated in the post-conviction rule. Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006), trans.
denied; see also Ind. Post-Conviction Rule 1(1). Accordingly, we do not address Morris’s free-standing claims
of deprivation of due process and abuse of discretion.
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On December 14, 2006, a jury found Morris guilty as charged. He was sentenced to
twenty-five years imprisonment.
Morris appealed, alleging error in the admission of hearsay testimony regarding his
age and a jury instruction describing the degree of penetration necessary to constitute sexual
intercourse. See id. The conviction was affirmed. See id. at 3. On June 9, 2008, Morris
filed a petition for post-conviction relief. A hearing was held on June 16, 2010, and on
January 9, 2011. On June 9, 2011, the post-conviction court entered its Findings of Fact,
Conclusions of Law, and order denying Morris post-conviction relief. He now appeals.
Discussion and Decision
Standard of Review
The petitioner in a post-conviction proceeding bears the burden of establishing the
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a negative
judgment. Id. On review, we will not reverse the judgment of the post-conviction court
unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite
that reached by the post-conviction court. Id. A post-conviction court’s 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. Id. In this review, findings of
fact are accepted unless they are clearly erroneous and no deference is accorded to
conclusions of law. Id. The post-conviction court is the sole judge of the weight of the
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evidence and the credibility of witnesses. Id.
I. Effectiveness of Trial Counsel
Morris claims that his trial attorney was ineffective because he: (1) failed to present
an alibi defense by calling a particular witness and introducing certain evidentiary exhibits,
including Morris’s cell phone records of the day in question and a calendar with entries
memorializing his sexual encounters; (2) failed to adequately impeach the victim’s testimony
and that of the victim’s mother; (3) failed to thoroughly consult with Morris and mend their
attorney-client relationship after it had degenerated to include name-calling; and (4) failed to
adequately prepare for trial.
To establish a post-conviction claim alleging a violation of the Sixth Amendment right
to effective assistance of counsel, a defendant must establish the two components set forth in
Strickland v. Washington, 466 U.S. 668 (1984). “First, a defendant must show that counsel’s
performance was deficient.” Id. at 687. This requires a showing that counsel’s
representation fell below an objective standard of reasonableness and that “counsel made
errors so serious that counsel was not functioning as ‘counsel’ guaranteed to the defendant by
the Sixth Amendment.” Id. “Second, a defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial,” that is, a trial where the result is reliable. Id. To
establish prejudice, a “defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. A reasonable probability is one that is sufficient to undermine confidence in the
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outcome. Id. Further, we “strongly presume” that counsel provided adequate assistance and
exercised reasonable professional judgment in all significant decisions. McCary v. State, 761
N.E.2d 389, 392 (Ind. 2002).
Counsel is to be afforded considerable discretion in the choice of strategy and tactics.
Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based
upon the facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d
1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring reasonable
professional judgment even if the strategy in hindsight did not serve the defendant’s interests.
Id. In sum, trial strategy is not subject to attack through an ineffective assistance of counsel
claim, unless the strategy is so deficient or unreasonable as to fall outside of the objective
standard of reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
David Shircliff (“Shircliff”), who represented Morris at trial, testified at the post-
conviction hearing. Shircliff explained that the theory of Morris’s defense was that the
victim, T.E., was unhappy at home and had accused Morris in order to get out of the home.
In furtherance of this defense, Shircliff questioned T.E. and her mother about their
relationship, eliciting evidence that it had been tumultuous. Counsel cross-examined T.E.
extensively regarding her recollection of events, the delay in reporting, and continued contact
with Morris. Counsel vigorously cross-examined T.E.’s mother as to why she had not been
attentive to her daughter’s discomfort and the bloodstain on her clothing. He elicited an
admission that medical assistance had not immediately been obtained. He also elicited an
admission from the physician who examined T.E. months later that the results of T.E.’s
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examination could mean that “absolutely nothing happened.” (Tr. 113.) In closing, he
highlighted the absence of forensic evidence and argued that the State had failed to establish
that an act of sexual intercourse took place.
Morris now argues that the theory of defense should have been that Morris could not
have stayed the night with T.E.’s mother and been present to attack T.E. on August 10, 2005,
because he was with another woman all night. In Morris’s view, this defense would have
been ably established had counsel introduced Morris’s cell phone records, his personal
calendar, and appropriate witnesses.
During her trial testimony, T.E. said that Morris had ceased having intercourse with
her when his cell phone rang. Morris claims that his cell phone records would have shown
that his phone rang at 11:00 a.m. as opposed to 7:00 to 8:00 a.m., when T.E.’s mother left for
work. However, Morris’s argument that the cell records would have impeached T.E.’s
testimony is based upon his assumption that T.E. testified that the attack took place at a
specified time.
At the post-conviction hearing, Shircliff testified that he understood T.E. to be unclear
on the exact time the cell phone rang. His assessment is supported by the record. T.E.’s
testimony with regard to the timing of the offense was that she did not remember what time
she awoke, but her older brother had left for his first day of school and her mother was at
work. As such, Morris’s cell phone records do not provide impeachment evidence.
Morris also claims that his calendar, upon which he wrote the names of women with
whom he had sexual encounters, was relevant alibi evidence ignored by Shircliff. Morris
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testified at trial that he remembered he was with C.R. because “I wrote it on my calendar, and
I keep track of whoever that I’m having sex with.” (Tr. 153.) However, the calendar was not
introduced into evidence. Shircliff explained at the post-conviction hearing that he and
Morris had agreed, “that calendar was not a good thing.” (P.C.R. Tr. 77.) We find the
rejection of the self-serving document to be within the range of reasonable professional
norms.
Additionally, Morris contends that his trial counsel was ineffective for failing to call
as a witness Morris’s cousin and former roommate, Dennis Boyd (“Boyd”). “A decision
regarding what witnesses to call is a matter of trial strategy which an appellate court will not
second-guess … although a failure to call a useful witness can constitute deficient
performance.” Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998). “Absent a clear showing of
injury and prejudice, we will not declare counsel ineffective for failure to call a witness.”
Osborne v. State, 481 N.E.2d 376, 380 (Ind. 1985).
According to Boyd’s testimony at the post-conviction hearing, he had observed Morris
and C.R. come into Boyd’s apartment at 3:00 a.m. on August 10, 2005. Boyd explained that
he was able to recall the date because he had been “in and out of town” doing cleanup work
after Hurricane Katrina, then had fallen ill and returned to Indianapolis. (P.C.R. Tr. 32.)
However, the post-conviction court observed that the date of T.E.’s rape, August 10, 2005,
preceded Hurricane Katrina, which hit New Orleans on August 29, 2005. Accordingly, the
post-conviction court found that Boyd’s faulty recollection would not have provided Morris
with persuasive alibi testimony.
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Morris now concedes that his cousin’s post-conviction testimony was lacking in
credibility, but argues that, had trial counsel called Boyd to testify at trial, his memory would
not have been impaired by years of drug use and failing health. We find the argument to be
highly speculative. The post-conviction court concluded that trial counsel did not
unreasonably or detrimentally reject a useful witness. We cannot say that the evidence before
the post-conviction court leads unerringly and unmistakably to a contrary result.
Morris claims that the school records of T.E.’s brother and the work records of T.E.’s
mother should have been introduced into evidence at trial, but he does not explain how these
would likely have affected the outcome of his case. Bald assertions of counsel’s omissions
or mistakes are inadequate to support a post-conviction claim of ineffectiveness of counsel.
Tapia v. State, 753 N.E.2d 581, 587 (Ind. 2001).
Morris also contends that the relationship between himself and Shircliff was
irretrievably broken such that Shircliff ceased to act adversarial to the State’s position.
Morris addressed a letter to the trial court requesting alternate representation and thereafter,
Shircliff allegedly called Morris a “prolific shit talker.” (P.C.R. Tr. 42.) Shircliff testified
that he may have addressed Morris as such; it was “not beyond the realm of something [he]
might say,” but nonetheless, he was not motivated to retaliate for the letter. (P.C.R. Tr. 42.)
The post-conviction court found that, despite the admittedly strained relationship, Shircliff
adequately represented Morris. In light of Shircliff’s vigorous defense of Morris, we cannot
say that all the evidence before the post-conviction court points to a conclusion that the
attorney-client relationship was irretrievably broken.
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Morris also claims that his trial counsel was generally unprepared to defend him. In
support of his argument, Morris estimates that Shircliff spent no more than three and one-half
hours in face-to-face conference with Morris. However, he does not acknowledge Shircliff’s
testimony that there were telephone conferences. Nor does Morris acknowledge the
testimony of Shircliff’s investigator that he had visited Morris in jail. Too, Shircliff testified
that he or his investigator had researched all witnesses or people of interest who could be
found, including Morris’s potential alibi witnesses. (PCR Tr. 79-82, 138.) The post-
conviction court concluded that Shircliff had adequately prepared for trial. On the record
before us, we do not find that all evidence leads to a contrary conclusion.
Trial counsel’s decision to pursue a defense that the victim had a motive for
fabrication is within the realm of reasonable professional judgment. So too is counsel’s
decision not to introduce Morris’s cell phone records or calendar. Finally, the record
supports the post-conviction court’s conclusion that trial counsel did not fail to investigate or
reject a viable alibi witness. Counsel’s efforts and strategy, although they did not ultimately
achieve the result desired by Morris, were not so unreasonable as to constitute ineffective
assistance of counsel. See Badelle v. State, 754 N.E.2d 510, 539 (Ind. Ct. App. 2001)
(deciding in relevant part that, when trial counsel’s efforts were “more than adequate” to
support a chosen defense, counsel’s decision not to call or seek out additional witnesses was
a judgment call within the wide range of reasonable assistance), trans. denied.
II. Effectiveness of Appellate Counsel
A defendant is entitled to the effective assistance of appellate counsel. Stevens v.
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State, 770 N.E.2d 739, 760 (Ind. 2002). Appellate ineffectiveness claims are evaluated under
the standard of Strickland, 466 U.S. at 668.
Morris claims that appellate counsel was ineffective for failing to raise viable issues.
According to Morris, appellate counsel should have challenged the trial court’s failure to
remove the crying juror, should have raised an issue based on newly discovered evidence,
and should have claimed ineffectiveness of trial counsel.
The decision regarding what issue or issues to raise on appeal “is one of the most
important strategic decisions made by appellate counsel.” Bieghler v. State, 690 N.E.2d 188,
193 (Ind. 1997). The petitioner must demonstrate “from the information available in the trial
record or otherwise known to appellate counsel that appellate counsel failed to present a
significant and obvious issue and that this failure cannot be explained by any reasonable
strategy.” Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind. 2000). Even if counsel’s choice
of issues was not reasonable, the petitioner’s claim will not prevail unless he can demonstrate
a reasonable probability that the outcome of the direct appeal would have been different.
Bieghler, 690 N.E.2d at 194.
Although Morris faults his appellate attorney for failing to raise an issue regarding the
trial court’s failure to sua sponte remove a crying juror, he cites no authority for the
proposition that a trial court has such a duty. In a similar vein, he claims that his appellate
attorney should have raised newly discovered evidence but does not describe the newly
discovered evidence. Finally, he contends that appellate counsel should have claimed that
trial counsel was ineffective. As we have determined that trial counsel was not ineffective,
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appellate counsel was not ineffective for failing to raise this issue.
III. Due Process in Post-Conviction Proceedings
Finally, Morris claims that he was denied procedural due process because the post-
conviction court declined to order service of subpoenas, denied motions filed prior to the
post-conviction evidentiary hearings,2 and entered findings and conclusions that addressed
less than all of Morris’s issues. The appellate record before us does not provide us with the
opportunity for meaningful review.
First, Morris has not included copies of subpoenas for witnesses he claims were
excluded, nor has he directed our attention to a specific and relevant portion of the post-
conviction record. Our review of the post-conviction transcript reveals that, at the conclusion
of the hearing on June 16, 2010, Morris inquired of the post-conviction court as to whether
he could possibly “get witnesses that didn’t make it” to the hearing. (P.C.R. Tr. 83.) The
post-conviction court responded that subpoenas would be sent, with the exception of any
additional proffered alibi witnesses, because the “alibi is dead in the water.” (P.C.R. Tr. 83.)
Morris questioned whether this included his former girlfriend, C.R., and the post-conviction
court, while not answering Morris directly, appeared to consider C.R. to be an alibi witness.
However, when the hearing reconvened on January 19, 2011, the post-conviction court
advised Morris that an order to appear had been sent to C.R. in December, at the address
2
In his cursory allegation of error, Morris does not specify what motions were denied. We note that, at the
post-conviction hearing, Morris advised the trial court that he had filed a motion for separation of witnesses.
The post-conviction court denied having received the written motion, but nonetheless orally granted the
motion.
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provided by Morris, albeit without personal service. As such, we cannot conclude that
Morris was deprived of the opportunity to subpoena a necessary witness.
Morris has included within his appendix a copy of his “Motion to Object [to] Court’s
Denials of Petitioner’s Pro Se Motions.” (App. 78.) The motion lists several motions
allegedly denied: “(A) Motion for Discovery with Addendum, (B) Seven Subpoena Duces
Tecums [sic], (C) Appointment of Co-Counsel for P.C. Evidentiary Hearing, (D) Motion for
Time to Interview Witnesses Prior to P.C. Hearing, (E) Motion to Compel Release of
Documents, (F) Motion for Transcript + Order to Comply with Request for Copy of
Transcript, (G) Motion for an Order Directing the Opposing Party to Produce Original and
Certified Record on Appeal to be used for Post Conviction Evidentiary Hearing.” (App. 78.)
However, Morris has failed to include within the appendix copies of motions he claims were
denied, such that the substance of the motions could be evaluated.
Finally, although Morris contends that the post-conviction court failed to address
some of his allegations or grounds for post-conviction relief, he has not included a copy of
his petition for post-conviction relief in his appellate record. Nor does he describe which of
his alleged grounds for relief was not addressed. We cannot, based upon bald assertions,
conclude that Morris was denied procedural due process.
Conclusion
Morris has not established that he was denied the effective assistance of trial or
appellate counsel; nor has he shown that he was denied procedural due process.
Accordingly, the post-conviction court properly denied Morris post-conviction relief.
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Affirmed.
ROBB, C.J., and MATHIAS, J., concur.
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