Mike Harmon v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 12 2017, 10:55 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY PRO SE ATTORNEYS FOR APPELLEE
Mike Harmon, Jr. Curtis T. Hill, Jr.
Bunker Hill, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mike Harmon, Jr., April 12, 2017
Appellant-Petitioner, Court of Appeals Case No.
45A03-1605-PC-1048
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Respondent. Judge
The Honorable Kathleen A.
Sullivan, Magistrate
Trial Court Cause No.
45G01-1305-PC-6
Najam, Judge.
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Statement of the Case
[1] Mike Harmon, Jr. appeals the post-conviction court’s denial of his petition for
post-conviction relief. Harmon raises the following three issues for our review:
1. Whether the post-conviction court erred when it rejected
Harmon’s contention that the State had improperly
withheld potentially exculpatory evidence from him during
his trial.
2. Whether the post-conviction court erred when it
concluded that Harmon did not receive ineffective
assistance from trial counsel.
3. Whether Harmon’s convictions denied him his
constitutional rights to due process and equal protection of
the laws.
We affirm.
Facts and Procedural History
[2] The facts underlying Harmon’s convictions were stated by our court in his
direct appeal:
During the evening of January 4, 2011, Dominique Smith
(“Dominique”) was in his Gary apartment located across the
street from the New Jerusalem Church of God and Christ (“the
Church”). Dominique’s grandfather, Pastor Lawrence Smith
(“Pastor Smith”), had served as pastor of the Church for nearly
thirty years and continued to preach at the Church on a regular
basis. While watching television, Dominique heard a loud noise
that sounded like a knock at his door. Dominique went down
the back stairs and looked down the alley in an attempt to
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discover the source of the noise. Dominique saw a man, who
was subsequently identified as Harmon, attempting to break one
of the Church’s windows with either a rock or a brick.
Dominique saw Harmon enter the Church through the window
after he was able to successfully break the window. After
watching Harmon enter the church, Dominique notified Pastor
Smith of the break-in.
Dominique walked around to the front of the church to wait for
Pastor Smith to arrive. As Pastor Smith approached, Dominique
went back around the side of the Church. Dominique saw
Harmon’s legs hanging out of the window. Pastor Smith also
saw Harmon’s legs hanging out of the window. Dominique
ordered Harmon to “Stop, don’t move. Don’t go nowhere.” Tr.
p. 14. Harmon attempted to flee but was cornered by Pastor
Smith’s vehicle and detained by Dominique until police arrived.
Shortly after Dominique detained Harmon, Gary Police Officers
Francis Peckler and David Finley arrived at the scene. Officer
Finley secured Harmon while Officer Peckler, Pastor Smith’s
wife Theodora, and Dominique entered the Church. Upon
entering the Church, Theodora noticed broken glass near the
window through which Harmon had gained access to the
Church. Theodora also saw that a piece of cardboard had been
placed in the broken window. She further noticed that some of
the furnishings had been rearranged and a stone statute depicting
angels and a waterfall had been moved from its normal location
and placed near the broken window. Dominique noticed that a
keyboard and a public address system which were normally
stored near the pulpit had been moved to near the broken
window. In addition to pieces of broken glass laying near and a
piece of cardboard placed in the broken window, Officer Peckler
noticed what appeared to be a broken vase right below the
broken window. Pastor Smith testified that while he could not
remember specifically whether certain items were out of place
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when he entered the Church a few days after the break-in, he did
remember that a gold flower pot had been moved.
Officers Finley and Peckler found two flashlights and two hand
files in Harmon’s jacket pocket at the time of his arrest. Both
Officer Peckler and lead detective Officer Brian Farrow testified
that in their experience as police officers, hand files and
flashlights are items that are typically used during the course of a
burglary when an individual is attempting to break into a
structure and steal something.
On January 6, 2011, the State charged Harmon with Class C
felony burglary and Class B misdemeanor criminal mischief. On
February 4, 2011, the State amended the charging information to
include an allegation that Harmon was a habitual offender. The
State again amended the charging information on July 26, 2011,
adding a charge of Class B felony burglary. On November 10,
2011, Harmon waived his right to a jury trial.
Following a bench trial, the trial court, acting as the fact-finder,
found Harmon guilty of Class B felony burglary and Class B
misdemeanor criminal mischief. Harmon stipulated that he was
a habitual offender. On January 5, 2012, the trial court imposed
an aggregate twenty-year term of incarceration. Harmon
subsequently filed a motion to correct error, which was denied by
the trial court on February 27, 2012. . . .
Harmon v. State, No. 45A02-1203-CR-256, 2012 WL 5193218 at *1-2 (Ind. Ct.
App. Oct. 22, 2012) (footnote omitted), trans. denied (“Harmon I”).
[3] In Harmon I, Harmon argued that the State had failed to present sufficient
evidence to show that he had committed burglary, as a Class B felony. In
particular, Harmon asserted that the State’s evidence established only “that he
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entered and exited the Church through a broken window” and “not that he
moved any property in a way that would envince [sic] an intent to commit
theft.” Id. at *2. We held, “[i]n light of witness testimony that certain
furnishings had been rearranged and multiple items were moved from their
normal locations and placed near the broken window[,] combined with
Harmon’s possession of tools . . . typically used during the course of a
burglary,” that the State presented sufficient evidence to support Harmon’s
conviction. Id. at *4.
[4] In May of 2013, Harmon filed his petition for post-conviction relief, which he
later amended. In his amended petition, Harmon alleged that he had received
ineffective assistance from his trial counsel, Samuel Vazanellis, based on
various theories. At an ensuing evidentiary hearing, Harmon first argued that
Vazanellis had failed to demand certain allegedly exculpatory photographs
taken by the State at the Church during the course of its investigation. In
response to that argument, Vazanellis testified:
[T]he pictures would have shown the objects next to the window.
I don’t see what . . . the difference is between people testifying to
what was below the window and what the pictures would have
shown. Everyone testified they don’t know whether or not they
moved it or you moved it, so I don’t see how that’s an issue.
P-CR Tr. at 35.
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[5] Harmon further alleged that Vazanellis had erroneously advised Harmon to
waive his right to a jury trial. In response, Vazanellis testified that, in light of
the fact that Harm had “admitted” that he had broken into the Church:
I explained to you that this was a question of law, not a question
of fact, that you had broken into the church[] but you didn’t
intend to steal anything. And that was a question of law, and it
was my opinion that a bench trial would be better than a jury
hearing that you broke into a church and weren’t planning on
stealing anything.
I thought that the fact that you broke into a church and the jury
hearing that would prejudice you, and the jury would just assume
that you had broken in to steal something. Where a [j]udge can
be fair and impartial and he can distinguish between those things.
If there was no evidence that anything was moved and there was
no evidence of an intent to steal, he would only be able to find
you guilty of trespass. I thought it would be better to have a
bench trial.
And then I advised you of that and you chose. You made the
ultimate decision of having a bench trial.
Id. at 45-47. And, in response to Harmon’s claim that Vazanellis had failed to
introduce favorable letters written by the victims, Vazanellis responded that
such evidence was unnecessary as Pastor Smith and his wife had “testified in
court for you on your behalf” and specifically stated that they believed Harmon
“didn’t move anything and . . . didn’t commit burglary.” Id. at 45.
[6] Following the evidentiary hearing, the post-conviction court denied Harmon’s
petition. In doing so, the court found and concluded as follows:
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14. . . . [Harmon] was presumably aware of the alleged
existence of the [alleged exculpatory] photographs at trial, yet
their lack [of having been admitted] was not raised on direct
appeal and so is waived here.
15. In addition, [Harmon] fails to demonstrate how any
photographs of clear glass and a vase might be exculpatory in any
way, as he does not dispute that Officer Peckler’s testimony in
describing those items was accurate.
***
22. [Harmon] has failed to show prejudice in regard to any of
the issues raised in his petition. As to [Harmon’s] allegations
that [Vazanellis] failed to investigate, Mr. Vazanellis testified as
to his theory of defense and it was a reasonable, albeit ultimately
unsuccessful, one. . . .
23. [Harmon] also alleges violations of due process and equal
protection of the laws; however, the gist of [Harmon’s] argument
appears to be that there was insufficient evidence to convict him.
On this point, he is barred by res judicata as the issue was
addressed by the Court of Appeals [in Harmon I] . . . .
Appellant’s App. Vol. II at 13-14. This appeal ensued.
Discussion and Decision
[7] Harmon appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review is clear:
The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
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(citations omitted). When appealing the denial of post-
conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. To prevail on appeal
from the denial of post-conviction relief, a petitioner must show
that the evidence as a whole leads unerringly and unmistakably
to a conclusion opposite that reached by the post-conviction
court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
Further, the post-conviction court in this case made findings of
fact and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6). Although we do not defer to the post-
conviction court’s legal conclusions, “[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.” Ben-Yisrayl v. State,
729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to
Campbell).
[8] On appeal, Harmon raises three issues for our review: (1) whether the State
failed to disclose potentially exculpatory photographs;1 (2) whether Harmon
received ineffective assistance from Vazanellis; and (3) whether his conviction
for Class B felony burglary violated his rights to due process and equal
protection of the laws. We address each argument in turn.
1
In the post-conviction court, Harmon styled this alleged error as a claim of ineffective assistance of counsel.
While he does not frame the issue in the same way on appeal, the State does not take issue with Harmon’s
repackaging of the substance of the claim he had presented to the post-conviction court. Cf. Bunch v. State,
964 N.E.2d 274, 297-304 (Ind. Ct. App. 2012) (considering the post-conviction petitioner’s claim that the
State had withheld potentially exculpatory evidence), trans. denied.
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Issue One: Photographs
[9] We first consider Harmon’s argument that the State failed to disclose
potentially exculpatory photographs, namely, certain photographs that,
according to Harmon, would have shown that a vase placed near the broken
window “belong[ed] there.” Appellant’s Br. at 11. The post-conviction court
rejected Harmon’s argument on two grounds. First, the court found that this
issue was available, but not argued, by Harmon on direct appeal. Second, the
court found that, Harmon’s waiver notwithstanding, his argument lacked merit.
[10] We agree that Harmon’s argument lacks merit. Assuming for the sake of
argument that this issue was even properly before the post-conviction court,
Vazanellis testified that the allegedly exculpatory photographs were merely
cumulative to the testimony of the witnesses. See P-CR Tr. at 35. Error cannot
be predicated on evidence that is merely cumulative. See, e.g., Sibbing v. Cave,
922 N.E.2d 594, 598 (Ind. 2010). Accordingly, Harmon cannot demonstrate
that the post-conviction court’s judgment on this issue is contrary to law.
Issue Two: Ineffective Assistance of Counsel Claim
[11] Harmon next argues that he received ineffective assistance from his trial
counsel:
When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the defendant must show deficient performance:
representation that fell below an objective standard of
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reasonableness, committing errors so serious that the defendant
did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “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. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Campbell, 19 N.E.3d at 274. Harmon argues that Vazanellis rendered
constitutionally deficient assistance because, according to Harmon, Vazanellis
did not properly advise Harmon regarding Harmon’s decision to waive his right
to a jury trial; Vazanellis failed to submit to the court during trial letters written
by the victims that were favorable to Harmon; and Vazanellis did not timely file
a motion to correct error in the trial court following the bench trial.
[12] We first consider Harmon’s argument that Vazanellis did not properly advise
him regarding his right to a jury trial. At the evidentiary hearing before the
post-conviction court, Vazanellis testified that he advised Harmon to waive his
right to a jury trial because Harmon’s best defense was to argue that he had
only committed trespass at the Church and not burglary. Vazanellis advised
Harmon that this argument was best made to the court, and not the jury,
because Vazanellis did not think a jury would be likely to believe that Harmon
broke into the Church without an intent to commit a felony therein. The post-
conviction court relied on Vazanellis’ testimony and concluded that he had
acted in a reasonable manner. We cannot say that the post-conviction court’s
judgment, which is supported by the record, is contrary to law.
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[13] We next consider Harmon’s argument that Vazanellis failed to submit favorable
evidence, namely, the letters from the victims, to the trial court. At the
evidentiary hearing before the post-conviction court, Vazanellis testified that he
did not submit the written letters because the victims testified to the court and
the substance of their testimony was the same as the substance of the letters.
Harmon presents no cogent argument on appeal to demonstrate that Vazanellis’
testimony is incorrect. Accordingly, we cannot say that the post-conviction
court’s judgment on this issue is contrary to law.
[14] Finally, Harmon argues that Vazanellis rendered ineffective assistance because
he failed to file a timely motion to correct error. But whether timely filed or
not, the substance of the motion to correct error was based on a claim of
insufficient evidence to support Harmon’s conviction for Class B felony
burglary. As explained in Harmon I, that argument failed. Accordingly,
Harmon cannot demonstrate that the post-conviction court’s judgment on this
issue is contrary to law.
Issue Three: Due Process and Equal Protection
[15] Harmon’s final issue on appeal is whether he “has been denied due process
and . . . equal protection” based on Issue One, Issue Two, and/or “the [b]ench
trial” generally. Appellant’s Br. at 17. For the reasons explained above, we
reject Harmon’s arguments under Issue One and Issue Two. And, as his
conviction for Class B felony burglary was supported by sufficient evidence, as
explained in Harmon I, we reject his third argument that his bench trial violated
his constitutional rights.
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[16] In sum, we affirm the post-conviction court’s denial of Harmon’s petition for
post-conviction relief.
[17] Affirmed.
Riley, J., and Bradford, J., concur.
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