Kevin Thien v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 08 2020, 9:02 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy E. Karozos Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Jonathan O. Chenoweth Megan M. Smith
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Thien, December 8, 2020
Appellant-Petitioner, Court of Appeals Case No.
20A-PC-1134
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Jeffrey D. Todd,
Appellee-Respondent, Judge
Trial Court Cause No.
27D01-1804-PC-4
Robb, Judge.
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Case Summary and Issue
[1] In 2016, Kevin Thien was convicted of possession of a narcotic drug, a Level 5
felony; possession of paraphernalia, a Class A misdemeanor; and found to be
an habitual offender. Thien appealed his convictions and a panel of this court
affirmed. Thien v. State, No. 27A02-1705-CR-1088 (Ind. Ct. App. Nov. 21,
2017). In 2018, Thien, pro se, filed a petition for post-conviction relief and in
2019, Thien, by counsel, amended his petition, alleging his trial counsel was
ineffective for failing to object to certain hearsay testimony and to a late
amendment to the habitual offender enhancement charge. Following a hearing,
the post-conviction court granted in part and denied in part Thien’s petition,
finding Thien’s counsel was ineffective for failing to object to the late
amendment but not ineffective for failing to object to the testimony. Thien now
appeals and raises one issue for our review: whether the post-conviction court
erred in denying Thien’s petition in part by finding Thien’s counsel was not
ineffective for failing to object to hearsay testimony. Concluding the post-
conviction court did not err, we affirm.
Facts and Procedural History
[2] We summarized the facts and procedural history supporting Thien’s conviction
in his direct appeal:
In June of 2015, then-Sergeant John Kauffman of the Marion
Police Department was a supervisor for the Joint Effort Against
Narcotics Drug Task Force in Marion, Indiana. While on duty
on June 19, 2015, Sergeant Kauffman observed Thien driving a
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vehicle. Sergeant Kauffman knew Thien’s driver’s license was
suspended and requested a uniformed officer initiate a traffic
stop. Sergeant Chris Butche conducted the traffic stop in his
marked patrol car. Sergeant Kauffman observed from an
unmarked vehicle from behind and to the left of the stopped
vehicles. Sergeant Kauffman saw Thien look into the driver’s
side mirror, and then move to his right, toward the passenger. A
police canine came to the scene and indicated the odor of drugs.
A blue box containing various items was recovered from Brittnie
McDaniel, a passenger in Thien’s car. McDaniel had the box
concealed in her pants. The box contained a hypodermic needle,
two hollow glass tubes with blackened residue on the end stuffed
with steel wool, and one white pill later identified as
hydrocodone.
McDaniel testified that she had just recently been released from
jail and on the day of the stop, Thien had driven her to the
probation department for an appointment. They were involved
in an off-and-on romantic relationship. Sergeant Kauffman
encountered them when they were on their way home from the
probation department. When Thien noticed the police presence,
he pulled a blue box out of a hidden compartment on the dash
and asked McDaniel to hide it in her pants. Although she did
not know what was in the box, McDaniel did as Thien requested
because she was afraid of him. During the stop, when McDaniel
was removed from the vehicle for questioning, she took the box
out of her pants and gave it to police, stating it was Thien’s and
he had told her to hide it. A second passenger in the car, sitting
directly behind McDaniel, testified that when they were pulled
over by police, McDaniel asked Thien, “what do you want me to
do with this container” and Thien replied, “I told you not to
bring nothing with us.” The passenger never saw the blue box.
The State charged Thien with possession of a narcotic drug, a
Level 5 felony due to an enhancing circumstance, and possession
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of paraphernalia, a Class A misdemeanor. The State also alleged
Thien was an habitual offender.
Id. at *1 (record citation omitted). At trial, a detective who assisted with the
traffic stop testified that, in the blue box, he found “a white oval pill which was
identified as hydrocodone.” [Prior Case] Transcript at 50. When asked how he
identified the pill as hydrocodone, he testified that he used “a pill identifier
site[,]” drugs.com, where he “type[s] in the shape, the color, and the imprint [of
the pill], and then it will pull up . . . different options of identifying the pill, and
you simply match the pill in your hand . . . and then you can print out . . . all
the characteristics or description of that pill[.]” Id. at 54. The pill he discovered
had an imprint that read “Watson 853” and when he put that information into
the identifier, “[i]t came back [as] hydrocodone[,]” which is a controlled
substance for which Thien did not have a prescription. Id. at 56. Thien’s trial
counsel, Beau White, did not object to the detective’s testimony.
[3] In phase one of Thien’s trial, a jury found him guilty of
possession of paraphernalia and possession of a narcotic drug,
and in phase two, found an enhancing circumstance applied to
elevate the possession of a narcotic drug conviction to a Level 5
felony. Thien waived jury consideration of the habitual offender
allegation; the trial court received evidence and determined he
was an habitual offender. The trial court entered judgment of
conviction on the verdicts and ordered Thien to serve concurrent
sentences of four years for possession of a narcotic drug and one
year for possession of paraphernalia, with the possession of a
narcotic drug sentence enhanced by four years due to his habitual
offender status, for an aggregate sentence of eight years.
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Thien, No. 27A02-1705-CR-1088 at *1. Thien appealed, challenging the
sufficiency of the evidence supporting his convictions, and a panel of this court
affirmed. See id. at *2-3.
[4] On April 9, 2018, Thien filed his verified petition for post-conviction relief. On
December 16, 2019, Thien, by counsel, amended his petition and alleged his
trial counsel was ineffective for failing to object (1) to the detective’s hearsay
testimony regarding the identification of the pill; and (2) to a late amendment of
the habitual offender charge. See Appendix to Brief of Appellant, Volume Two
at 39-43. An evidentiary hearing was held on March 3, 2020.
[5] At the hearing, Thien’s trial counsel, White, testified. When asked why he did
not object to the officer’s testimony regarding the pill, White explained that his
trial strategy was to show that the pill belonged to McDaniel:
I thought the State’s evidence was really weak, and I thought we
could win by the State not proving their case beyond a reasonable
doubt because we had a witness in the backseat of the vehicle
who testified that when they were pulled over . . . my recollection
is that Ms. McDaniel said when they got pulled over, Mr. Thien
gave her a container that contained paraphernalia and the pill,
which is the controlled substance, I thought they had problems
with sufficiency for their case because the officer claimed to have
seen Mr. Thien lean over and hand something to her. Mr.
Thien’s vehicle’s windows were tinted to the point of pitch black.
So I thought there was a credibility issue with the officer’s
testimony because he couldn’t have seen what he claimed to have
seen is what I believed was one strength of our case. The biggest
strength of our case was there was a third party in the backseat
who was not charged with anything I don’t believe. So he
testified basically that when he pulled over that Mr. Thien never
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asked Britt[nie] to take anything nor did Mr. Thien hand her the
container in question. . . . So maybe I was overconfident that
they had a weak case on sufficiency, and I didn’t bother
objecting, but there wasn’t a strategic reason for that. Again I
thought there was going to be reasonable doubt by the fact that
Ms. McDaniel was on probation at the time that she was trying
to say that Mr. Thien gave her the pill. So she had a motivation
to lie. She was going to get a probation violation. She already
had at least three probation violations . . . at the time that this
happened. So she was looking at a substantial punishment. So I
thought that was reasonable doubt, but in particular the fact that
we had an independent witness in the backseat who said that Mr.
Thien never had possession of the container or the drugs, . . . was
kind of what I built our defense around.
[PCR] Transcript, Volume 2 at 7-8. White further testified that his failure to
object to the testimony was not a strategic decision but agreed he did not feel
that other areas of Thien’s case needed to be attacked because he believed the
State had a weak case.
[6] On May 12, the post-conviction court issued an order granting in part and
denying in part Thien’s petition. The post-conviction court concluded Thien’s
trial counsel was ineffective for failing to object to the late amendment of the
habitual offender charge and vacated the enhancement. However, it concluded
counsel was not ineffective for failing to object to hearsay:
Conclusions of Law
***
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6. Had trial counsel objected to the police officer’s testimony,
the trial court would have sustained the objection. However,
raising questions about whether or not the pill contained a
narcotic drug was not part of Thien’s trial strategy. Instead, the
focus of Thien’s strategy centered upon attacking the credibility
of the State’s witness, Brittnie McDaniel, and her testimony that
the drugs found in her pants belonged to Thien rather than her.
If this strategy worked, it would earn Thien an acquittal on the
lone felony charge, and gut the habitual offender enhancement.
As identification of the pill was outside the scope of Thien’s
defense strategy, trial counsel’s failure to make a hearsay
objection was merely an omission. . . .
7. Trial counsel made an opening statement, delivered a
closing argument, cross examined the State’s witnesses, moved
and argued for a directed verdict after the State rested its case,
called a witness to testify for the defense, and generally subjected
the State’s case to adversarial testing. His failure to make a
timely hearsay objection did not render his performance
deficient, and did not deny Thien effective assistance of counsel.
Appealed Order at 4-5. Thien now appeals the partial denial of his petition for
post-conviction relief. Additional facts will be provided as necessary.
Discussion and Decision
I. Post-Conviction Standard of Review
[7] Post-conviction proceedings are civil in nature and the petitioner must therefore
establish his claims by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). “Post-conviction proceedings do not afford the petitioner an
opportunity for a super appeal, but rather, provide the opportunity to raise
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issues that were unknown or unavailable at the time of the original trial or the
direct appeal.” Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans.
denied. On appeal, a petitioner who has been denied post-conviction relief faces
a “rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind.
2001). The petitioner must convince this court that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert.
denied, 537 U.S. 839 (2002). When reviewing the post-conviction court’s order
denying relief, we will “not defer to the post-conviction court’s legal
conclusions,” and 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.” Humphrey v. State, 73 N.E.3d 677, 682 (Ind.
2017) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), cert. denied,
534 U.S. 830 (2001)). The post-conviction court is the sole judge of the weight
of the evidence and the credibility of witnesses. Fisher v. State, 810 N.E.2d 674,
679 (Ind. 2004).
II. Ineffective Assistance of Trial Counsel
[8] The Sixth Amendment to the United State Constitution guarantees a criminal
defendant the right to counsel and mandates “that the right to counsel is the
right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S.
668, 686 (1984). Generally, to prevail on a claim of ineffective assistance of
counsel a petitioner must demonstrate both that his counsel’s performance was
deficient and that the petitioner was prejudiced by the deficient performance.
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French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland, 466 U.S. at
687, 694). A counsel’s performance is deficient if it falls below an objective
standard of reasonableness based on prevailing professional norms. Id. To
meet the test for prejudice, the petitioner 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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Perez v. State,
748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong will cause the
claim to fail. French, 778 N.E.2d at 824.
[9] When we consider a claim of ineffective assistance of counsel, we apply a
“strong presumption . . . that counsel rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1073 (Ind. 2001). And “a defendant must
offer strong and convincing evidence to overcome this presumption.” Williams
v. State, 771 N.E.2d 70, 73 (Ind. 2002). Counsel has wide latitude in selecting
trial strategy and tactics, which we afford great deference. Ward v. State, 969
N.E.2d 46, 51 (Ind. 2012). “Strickland does not guarantee perfect
representation, only a ‘reasonably competent attorney.’” Woodson v. State, 961
N.E.2d 1035, 1041-42 (Ind. Ct. App. 2012) (quoting Harrington v. Richter, 562
U.S. 86, 110 (2011)), trans. denied. “[E]ven the finest, most experienced
criminal defense attorneys may not agree on the ideal strategy or the most
effective way to represent a client. Isolated mistakes, poor strategy,
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inexperience, and instances of bad judgment do not necessarily render
representation ineffective.” Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002).
[10] We initially acknowledge that the judge who presided over Thien’s original trial
is also the judge who presided over the post-conviction proceedings. When the
post-conviction judge is the same judge who conducted the original trial, a post-
conviction court’s findings and judgment are entitled to “greater than usual
deference[,]” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013), trans.
denied, because the judge “was in an exceptional position to assess not only the
weight and credibility of the factual evidence [but also] whether it deprived the
defendant of a fair trial[,]” State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003).
[11] Thien argues that the detective’s testimony was inadmissible hearsay and
White’s failure to object to such testimony constitutes deficient performance
based on three factors: (1) the detective’s testimony was the only evidence as to
content of the pill; (2) the testimony was clearly objectionable as inadmissible
hearsay; and (3) an objection would not have conflicted with White’s trial
strategy. See Brief of Appellant at 15-16.
[12] When a petitioner claims ineffective assistance of counsel based on counsel’s
failure to object, the petitioner must show that a proper objection would have
been sustained. Smith, 765 N.E.2d at 585. The post-conviction concluded, and
we agree, that had White objected to the detective’s testimony, the objection
would have been sustained. Hearsay is a statement that “is not made by the
declarant while testifying at the trial or hearing; and . . . is offered in evidence to
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prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). Generally,
hearsay is inadmissible unless it falls into one of the well-delineated exceptions.
Evid. R. 802. Here, the out-of-court statement – that the information on
drugs.com indicated the pill was hydrocodone – was offered to prove the truth
of the matter asserted – that the pill was, in fact, hydrocodone. There is no
dispute that the detective’s testimony constitutes hearsay, and it does not fall
within an exception. Therefore, we conclude that an objection to this testimony
would have been sustained.
[13] Nonetheless, we cannot conclude that White’s failure to object constituted
deficient performance. Although White testified that his failure to object to the
testimony was not a strategic decision, it was consistent with his choice of
defense theory and overarching trial strategy.
[T]he choice of defense theory is a matter of trial strategy.
Counsel is given significant deference in choosing a strategy
which, at the time and under the circumstances, he or she deems
best. A reviewing court will not second-guess the propriety of
trial counsel’s tactics. 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. This is so even when such
choices may be subject to criticism or the choice ultimately
proves detrimental to the defendant.
Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011) (quotations,
alterations, and citations omitted).
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[14] Thien argues that this testimony was so crucial to the State’s case as to render
White’s failure to object deficient. We disagree. In general, one may view
White’s failure to object as “deficient,” but our task is to evaluate whether this
failure was deficient in light of the strategy he used, not a different or better
strategy. White’s decision not to object can be attributed to his trial strategy of
attacking witness credibility rather than challenging the contents of the pill.1
White believed the State had a weak case and would not be able to prove its
case beyond a reasonable doubt due to the credibility issues of two witnesses,
namely an officer and McDaniel. At the evidentiary hearing, White testified
that he “built [Thien’s] defense around” the fact that McDaniel had motivation
to lie about Thien giving her the pill and there was an independent witness who
was in the vehicle at the time of the stop and testified that Thien never had
possession of the pill, which White believed was “[t]he biggest strength of our
case[.]” [PCR] Tr., Vol. 2 at 7-8. He stated that he “didn’t bother objecting,
but there wasn’t a strategic reason for that.” Id. at 7. If White’s strategy was
successful and the jury believed the independent witness’ version of events and
that the pill belonged to McDaniel, then regardless of the contents of the pill,
Thien would not have been convicted of the felony possession charge, which
would also have removed the habitual offender enhancement. The fact that
1
Again, we acknowledge that White testified that his failure to object was not a strategic decision. However,
we do not view decisions in isolation, but as a whole. See Smith, 765 N.E.2d at 585 (“Isolated mistakes, poor
strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.”).
And in this case, counsel’s overall strategy of focusing on who the pill belonged to was not unreasonable and
counsel’s failure to object to the identification of the pill was consistent with that strategy.
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White’s strategy was ultimately unsuccessful does not mean that he was
constitutionally ineffective. Hinesley, 999 N.E.2d at 983. Similarly, the fact that
White, in hindsight, testified that failing to object was a mistake does not alter
our analysis.
[15] We cannot conclude White’s trial strategy and choice of defense theory aimed
at attacking McDaniel’s credibility and relying on the independent witness’
testimony rather than attacking the contents of the pill itself constitutes
performance “so deficient or unreasonable as to fall outside of the objective
standard of reasonableness” such that Thien was deprived of the effective
assistance of counsel.2 Benefield, 945 N.E.2d at 799.
[16] In sum, the evidence does not lead unerringly and unmistakably to the
conclusion that White was ineffective for failing to object to the detective’s
testimony. We find no error.
Conclusion
[17] The evidence does not lead unerringly and unmistakably to the conclusion that
Thien’s trial counsel was ineffective for failing to object to the detective’s
hearsay testimony. Therefore, the post-conviction court did not err in denying
Thien’s petition on this issue and we affirm.
2
Having concluded White was not deficient for failing to object, we need not address whether Thien was
prejudiced. French, 778 N.E.2d at 824.
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[18] Affirmed.
Crone, J., and Brown, J., concur.
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