Kelly L Gillespie v. State of Indiana ( 2024 )

IN THE
Court of Appeals of Indiana
Kelly L. Gillespie,
Appellant-Petitioner FILED
Sep 20 2024, 8:31 am
v. CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
State of Indiana,
Appellee-Respondent
September 20, 2024
Court of Appeals Case No.
23A-PC-2494
Appeal from the Orange Circuit Court
The Honorable Steven L. Owen, Judge
Trial Court Cause No.
59C01-2005-PC-268
Opinion by Judge Kenworthy
Judges May and Vaidik concur.
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Kenworthy, Judge.
Case Summary
[1] In 2018, Kelly Gillespie was convicted after a jury trial of Level 4 felony
possession of methamphetamine, Level 6 felony maintaining a common
nuisance, and Class B misdemeanor possession of marijuana. In 2020,
Gillespie petitioned for post-conviction relief. His petition was denied after an
evidentiary hearing. Gillespie appeals, raising one issue: did the post-
conviction court clearly err when it found his counsel was not ineffective in
representing him at trial? We reverse and remand.
Facts and Procedural History
[2] Gillespie had a home in Mitchell, Indiana, and was involved in a romantic
relationship with Karen Cornwell. Gillespie answered the door at Cornwell’s
house in Orleans, Indiana, when Detective Paul Andry arrived to serve an
arrest warrant on Cornwell. While detaining Cornwell, Detective Andry
noticed the house smelled strongly of marijuana. Cornwell’s red truck and
Gillespie’s white truck were parked in the driveway. When Detective Andry
retrieved medication Cornwell needed from her truck before transporting her to
jail, he found a glass pipe with white residue later determined to be
methamphetamine. Cornwell then admitted there was marijuana, several
pipes, and other drug paraphernalia in the house. Detective Andry arrested
both Cornwell and Gillespie.
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[3] After obtaining a search warrant, officers searched Cornwell’s house, her truck,
and Gillespie’s truck. Detective Andry described Cornwell’s house as dark and
“pretty much [in] disarray” with “stuff thrown everywhere around.” Trial Tr.
Vol. 2 at 179.
[Officers] found multiple methamphetamine pipes in plain view;
a box that contained a marijuana grinder, a small plastic baggie,
and another methamphetamine pipe; and Cornwell’s brown
purse with pills inside. There was a floral-print purse on the sofa
that contained a small baggie of marijuana, other plastic baggies,
a $20 bill with an “eight-ball” logo commonly used for drugs,
and two bags filled with a substance later determined to be
methamphetamine. Then, in the dining room, they found a
“dealing kit” on the table that included a wooden cigar box with
small baggies, a spoon, and digital scales. These baggies had [a]
yellow spider pattern . . . and contained a white crystal-like
powder that was later determined to be methamphetamine.
Gillespie v. State, No. 18A-CR-1542, at *2 (Ind. Ct. App. Feb. 20, 2019) (mem.)
(record citations omitted). In the bedroom, police found marijuana, firearms,
women’s clothing, and “a very small amount of men’s clothing”—some jackets
and shoes. Trial Tr. Vol. 2 at 186. Detective Andry testified Cornwell’s
husband had recently passed away so he could not “positively say” whose
clothing it was. Id.
[4] In Cornwell’s truck, police found a pipe with marijuana residue, a digital scale
with methamphetamine residue, baggies, a prescription for Gillespie, and a
court document with Gillespie’s name on it. In Gillespie’s truck, they found a
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loaded revolver, a metal plate with methamphetamine residue, a tube from an
ink pen, and several small baggies with a yellow spider pattern.
[5] The State charged Gillespie with dealing in methamphetamine, possession of
methamphetamine, maintaining a common nuisance, and possession of
marijuana. Brock Dawson (“Counsel”) represented Gillespie at his jury trial,
the third jury trial Counsel had conducted. Gillespie’s defense “was he did not
live with . . . Cornwell, at her home, but was merely present when police served
an outstanding arrest warrant on her, having no actual or constructive
possession of drugs or drug paraphernalia found in her home, and he was not a
drug dealer but a user” based on items found in his truck. PCR Ex. Vol. 1 at 40;
see also Trial Tr. Vol. 3 at 35 (Counsel arguing during closing that Gillespie and
Cornwell “had a relationship and he may have stayed the night there a few
times,” but there was no evidence he lived with Cornwell). Cornwell, also
facing charges arising out of these events, did not testify at Gillespie’s trial.
[6] Detective Andry was the State’s primary witness. On direct examination,
Detective Andry testified Gillespie was arrested because “[h]e’s at a property
with drugs on it.” Trial Tr. Vol. 2 at 155. Even though Gillespie “had actually
stated that he didn’t live at the residence several times [and] didn’t understand
why he was being arrested[,]” Detective Andry “had reason to believe that he
was residing there” because Cornwell told him Gillespie “stayed with her
sometimes and she stayed with him sometimes.” Id. Counsel did not object to
this testimony. Counsel then asked Detective Andry on cross-examination if he
had any first-hand knowledge of Gillespie living in the house. Detective Andry
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answered, “Well, he was there when we went there and [Cornwell] told me he
lived there, as did other people[.]” Id. at 214. Detective Andry did not “know
what the difference is” between staying at someone’s house and living there. Id.
[7] Detective Andry also testified on cross-examination that Cornwell was “the
main dealer here. . . . I would just allege that [Gillespie] is assisting her.” Id. at
218. Counsel returned to this line of thought on re-cross:
Q. You feel confident [Cornwell] is a meth dealer, right?
A. Oh yeah, I’m confident they’re both meth dealers, but
[Cornwell] is the supplier. She’s the one that goes and picks it
up.
Q. Okay. Now . . . has there been any kind of transactions
witnessed?
A. I have not witnessed them. They have been reported to me.
That’s how I started the investigation. . . . It was an investigation
that started back in November with a case that I worked and an
arrest that I made and then I interviewed three different
individuals from those cases and the information I got from those
individuals indicated that . . . both [Gillespie] and [Cornwell]
were involved in dealing[.] . . . [Gillespie], with full knowledge
actually vetted people . . . before he let them in the residence, . . .
he sometimes weighed the drugs out and . . . he also talked with
people that were there about the transactions[.]
Q. Are those people . . . expected to be here today . . .?
A. Well, no. The one girl died. We do have a video taped
interview with her that I’m sure we could bring up and the other
two people are wanted on warrants for drug trafficking.
Q. Okay. Would you consider those people um, I can talk about
their credibility I guess later.
A. I’d be glad to. I mean I would consider the two that I
interviewed that were originally not to [sic] very reliable except
that they [gave] me independent information that I could verify.
The young lady that is dead now, that died of a drug overdose
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recently, she had been found to be credible in Court and actually
has testified in Federal Court. Although that does not always say
that she would be credible in every circumstance. Once again her
information correlated with what I found at the residence that
day and it also correlated with the other two individuals that
gave me the information about [Gillespie] and [Cornwell]
dealing.
Id. at 219–21.
[8] The State introduced several exhibits showing the items found in the search of
the house and trucks during Detective Andry’s direct testimony. Detective
Andry described two of the exhibits as pictures of “a pretrial diversion
document signed by . . . Gillespie . . . a couple of days before” the search. Id. at
163; see Trial Index of Ex. at 33, 35. The State also admitted the actual
agreement into evidence. See Trial Index of Ex. at 129. The agreement included
a caption and cause number but no information about the charges. It listed
Gillespie’s address as Mitchell, Indiana. Counsel did not object to admission of
the testimony or exhibits.
[9] During its closing argument, the State argued Gillespie was responsible for
what was found at Cornwell’s house, using Cornwell’s statement and the
information Detective Andry received from the three unnamed people as
support:
Cornwell told Detective Andry that [Gillespie] stayed with her at
the house. That’s what his girlfriend, a person that he has been
in a relationship with for four years, that’s what she told
Detective Andry that day. They stayed there, they [stayed at] his
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place, they stayed at both places. Other people told Detective
Andry that [Gillespie] and Cornwell were involved in dealing
drugs at Cornwell’s residence. At least three people had told
Detective Andry, that’s one of the reasons that he was there . . .,
because he had this information about the two of them being
involved in dealing drugs there at that house[.]
Trial Tr. Vol. 3 at 26. The State also referenced the pretrial diversion agreement
signed by Gillespie and found in Cornwell’s truck as something “that ties
[Gillespie] to whatever is in the house.” Id. at 28. And the State told the jury
the trial court would be instructing it about accomplice liability and that
Gillespie “was dealing methamphetamine [or] was aiding . . . Cornwell in
dealing in methamphetamine, which is the same as him dealing in
methamphetamine.” Id. at 38.
[10] The trial court gave the jury the following instruction about accomplice
liability:
A person who knowingly or intentionally aids, induces, or causes
another person to commit an offense commits that offense, even
if the other person has not been prosecuted for the crime, for the
offense, has not been convicted of the offense or has been
acquitted of the offense.
Id. at 45. Gillespie did not object to the instruction or tender his own.
[11] The jury found Gillespie guilty of all four charges. At sentencing, the trial court
vacated Gillespie’s conviction of possession of methamphetamine as a lesser
included offense of dealing in methamphetamine and sentenced Gillespie to an
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aggregate sentence of fifteen years. Gillespie’s convictions and sentence were
affirmed on direct appeal. 1
[12] Gillespie petitioned for post-conviction relief, alleging several instances of
ineffective assistance by Counsel during his trial. Gillespie obtained an affidavit
from Counsel that was attached to his petition and admitted as an exhibit at the
post-conviction hearing. The affidavit stated:
8. . . . I did not adequately represent Mr. Gillespie’s interests in
the course of the jury trial, to wit:
A. I did not object to the Court’s Final Instruction No. 11
on accomplice liability which was incomplete. I tendered no
accomplice liability instruction. I could have tendered the
pattern accomplice liability instruction 2.16 that included the
language of mere presence at the scene is insufficient to convict
for aiding, inducing, or causing the crime, which would have
bolstered Mr. Gillespie’s defense;
B. I did not object to the State’s questioning of Detective
Paul Andry when he testified about what Karen Cornwell told
him as it was inadmissible hearsay, there being no exceptions,
and I had no ability to cross examine or confront Ms. Cornwell
about her statement as she was a co-defendant in this case;
C. I failed to object when the State moved to admit a pre-
trial diversion agreement between the State and Mr. Gillespie
1
Counsel did not represent Gillespie on appeal.
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that was from another Orange County criminal case . . . as a
violation of [Evidence Rule] 404(b);
D. In my re-cross-examination of Detective Paul Andry, I
opened the door to harmful, incriminating, inadmissible
testimonial evidence that was hearsay, a violation of [Evidence
Rule] 404(b), inappropriate vouching testimony, and I had no
way to confront and cross-examine the sources of this
information. This information was harmful and undermined Mr.
Gillespie’s defense at trial.
9. There were no strategic reasons for my failure to make
objections, tender a pattern accomplice liability instruction, or in
my examination of Detective Andry[.]
Appellant’s PCR App. Vol. 2 at 48–49; PCR Ex. Vol. 1 at 40–41.
[13] The same judge who presided over Gillespie’s jury trial heard the post-
conviction petition. Among other things, Gillespie introduced as exhibits at the
evidentiary hearing “Juror Question(s) for Witness” forms showing two jurors
had questions at trial about the pre-trial diversion agreement. The trial court
did not ask the questions because Counsel objected to them on the basis of
Evidence Rule 404(b), but Gillespie asserted the forms show the jury “actually
had seen the Pretrial [Diversion Agreement] and (inaudible) raised questions in
their minds.” PCR Tr. Vol. 2 at 13. The State called Counsel to testify at the
evidentiary hearing. Counsel said his position had not changed from the
statement in his affidavit. See id. at 46.
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[14] The post-conviction court denied Gillespie’s petition for post-conviction relief,
finding:
[Gillespie] has failed to carry his burden that trial counsel’s
performance fell below an objective standard of reasonableness.
[Gillespie] has failed to overcome the strong presumption that
counsel rendered adequate assistance. [Gillespie] has also failed
to show prejudice in that there has been no showing that there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
Appellant’s PCR App. Vol. 2 at 99–100 (quotation and citation omitted).
[15] As to Gillespie’s specific claims, the post-conviction court determined Counsel
was not ineffective for his alleged failures because: (1) the “jury was properly
instructed on accomplice liability”; (2) “[a]t worst, the recently signed pre-trial
diversion agreement is benign; at best . . ., the pre-trial diversion supports his
defense that he did not live with [Cornwell] because the agreement has a
different address on it”; (3) Detective Andry’s testimony about Cornwell’s
statement “arguably fits” under an exception to the hearsay rule, Cornwell’s
statement that Gillespie “stayed” with her but also had his own place
“supported [Gillespie’s] trial defense that he did not live at the residence,” and
“there was ample other evidence to show [Gillespie’s] connection to the
residence”; (4) Counsel’s “lack of control of [Detective] Andry’s responses on
re-cross were prejudicial to [Gillespie], but [he] also elicited testimony from
[Detective] Andry . . . that supported [Gillespie’s] defense that [Cornwell] was
the person dealing in methamphetamine and not him”; and (5) because “[n]one
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of the grounds alleging ineffective assistance of counsel are individually
sufficient to support [Gillespie’s] claim of ineffective assistance of counsel[;] the
assertion that the cumulative errors support the . . . claim must also fail.” Id. at
97–99.
Post-Conviction Standard of Review
[16] In the court below, Gillespie had the burden of establishing his claims for relief
by a preponderance of the evidence. See Ind. Post-Conviction Rule 1(5).
Gillespie therefore appeals from a negative judgment and must establish on
appeal the evidence, as a whole, leads unmistakably and unerringly to a
conclusion contrary to that reached by the post-conviction court. Wilson v.
State, 157 N.E.3d 1163, 1170 (Ind. 2020). We will affirm the post-conviction
court’s denial of relief when the defendant fails to meet this “rigorous standard
of review.” Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019) (quoting DeWitt v.
State, 755 N.E.2d 167, 169 (Ind. 2001)), cert. denied.
[17] Post-Conviction Rule 1(6) requires the post-conviction court to make findings
of fact and conclusions of law on all issues presented. 2 We do not defer to the
2
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). However, the post-conviction court here also adopted
the State’s proposed order verbatim. See Appellant’s PCR App. Vol. 2 at 57–63. Although this practice is not
prohibited, Stevens v. State, 770 N.E.2d 739, 762 (Ind. 2002), cert. denied, it is also not encouraged, Pruitt v.
State, 903 N.E.2d 899, 940 (Ind. 2009). The post-conviction court’s adoption of the State’s proposed findings
does not alter our clearly erroneous standard of review, Wrinkles v. State, 749 N.E.2d 1179, 1188 (Ind. 2001),
cert. denied, but it also does not warrant greater deference.
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post-conviction court’s legal conclusions and will reverse the findings and
judgment “only upon a showing of clear error—that which leaves us with a
definite and firm conviction that a mistake has been made.” Bobadilla v. State,
117 N.E.3d 1272, 1279 (Ind. 2019) (quoting Humphrey v. State, 73 N.E.3d 677,
682 (Ind. 2017)). The post-conviction court is the “sole judge of the evidence
and the credibility of witnesses.” Bradbury v. State, 180 N.E.3d 249, 252 (Ind.
2022) (quoting Hall v. State, 849 N.E.2d 466, 468–69 (Ind. 2006)), cert. denied.
Ineffective Assistance of Counsel
[18] When evaluating an ineffective assistance of counsel claim, we apply the two-
part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Humphrey,
73 N.E.3d at 682. First, “the defendant must show deficient performance:
representation that fell below an objective standard of reasonableness,
committing errors so serious that the defendant did not have the ‘counsel’
guaranteed by the Sixth Amendment.” Id. (quoting McCary v. State, 761 N.E.2d
389, 392 (Ind. 2002)). Second, “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. (quoting McCary, 761 N.E.2d at 392). The failure to
establish either part will cause the claim to fail. French v. State, 778 N.E.2d 816,
824 (Ind. 2002).
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The post-conviction court clearly erred in denying Gillespie
relief.
[19] In its findings and conclusions, the post-conviction court determined Counsel
did not render deficient performance on any of Gillespie’s claims of error. In
general, we “strongly presume that counsel provided adequate assistance and
exercised reasonable professional judgment in all significant decisions.”
Humphrey, 73 N.E.3d at 684 (quoting McCary, 761 N.E.2d at 392). “[T]actical
or strategic decisions will not support a claim of ineffective assistance,” and we
afford great deference to trial counsel’s discretion to choose strategy and tactics.
Id. at 683 (quoting McCary, 761 N.E.2d at 392). The State relies heavily on the
oft-repeated statement that isolated errors, poor strategy, or bad tactics do not
necessarily amount to deficient performance in defending the post-conviction
court’s assessment of Counsel’s performance. See Appellee’s Br. at 20, 22, 25.
But where the record contradicts the presumption that counsel’s performance
was the result of strategic and tactical planning, we will not afford such
deference to counsel’s decision-making. Humphrey, 73 N.E.3d at 684. Here,
Counsel submitted an affidavit stating “[t]here were no strategic reasons” for his
disputed actions or omissions. Appellant’s PCR App. Vol. 2 at 49. Accordingly,
we will not give deference to Counsel’s decisions.
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1. Counsel’s representation fell below an objective standard of
reasonableness.
A. Detective Andry’s Testimony
[20] Gillespie claims Counsel’s performance was deficient for failing to object
several times during Detective Andry’s testimony. Counsel supported
Gillespie’s claim, acknowledging he did not object and had no strategic or
tactical reason for not doing so. Despite Counsel’s concession, the post-
conviction court disagreed and concluded Counsel did not perform deficiently
during Detective Andry’s testimony.
[21] To establish deficient performance for failing to object, the defendant must
show a reasonable probability the objection would have been sustained if made.
Garrett v. State, 992 N.E.2d 710, 723 (Ind. 2013).
[22] Gillespie first claims Counsel’s performance was deficient for failing to object
when Detective Andry relayed Cornwell’s hearsay statement. Detective Andry
testified Gillespie protested being arrested, stating several times “he didn’t live
at the residence[.]” Trial Tr. Vol. 2 at 155. When Detective Andry asked
Cornwell about this, she told him “[Gillespie] stayed with her sometimes and
she stayed with him sometimes.” Id.[23] Hearsay is an out of court statement offered in evidence to prove the truth of
the matter asserted. Ind. Evid. Rule 801(c). Generally, hearsay is inadmissible
unless it falls into one of the well-delineated exceptions. Evid. R. 802.
Cornwell’s out-of-court statement—that Gillespie stayed at her house
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sometimes—was offered to prove the truth of the matter asserted—that
Gillespie was connected to Cornwell’s house and constructively possessed the
drugs and paraphernalia found there. Although the defense strategy was to
show Gillespie was merely present at Cornwell’s house when the warrant was
served, Counsel did not object to this testimony. Not only did Counsel fail to
object, but he returned to this point during cross-examination, giving Detective
Andry the opportunity to elaborate.
[24] The post-conviction court found the statement was “arguably” not hearsay
because it was a statement by a co-conspirator, or fit either the present sense
impression or excited utterance exception to the hearsay rule. Appellant’s PCR
App. Vol. 2 at 110 (citing Evid. R. 801(d)(2)(E) and 803(1), (2)). In other words,
the post-conviction court found Gillespie failed to show an objection to this
testimony would have been sustained. We conclude none of those sections
apply. 3
3
The State additionally argues on appeal this statement was admissible as “course-of-investigation”
testimony, offered “only to explain why the investigation proceeded as it did[.]” Appellee’s Br. at 19.
“[C]areful attention” must be paid where the course-of-investigation exclusion is invoked because “[t]here is
a risk the jury will rely upon the out-of-court assertion as substantive evidence of guilt—rather than for the
limited purpose of explaining police investigation—and the defendant will have no chance to challenge that
evidence through cross-examination.” Blount v. State, 22 N.E.3d 559, 566 (Ind. 2014). “The ultimate inquiry
is: Was the out-of-court statement used primarily to show the truth of its content, constituting inadmissible
hearsay, or merely to explain subsequent police action, excluded from hearsay?” Id. Here, Cornwell’s out-
of-court statement was used primarily to show Gillespie had a possessory interest in her house, and by
extension, the contents thereof.
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[25] A statement is not hearsay if the statement is one “by the party’s coconspirator
during and in furtherance of the conspiracy.” Evid. R. 801(d)(2)(E). The State
must provide “independent evidence” of the conspiracy before the statements
will be admissible as non-hearsay under Rule 801(d)(2)(E). Lander v. State, 762
N.E.2d 1208, 1213 (Ind. 2002). Here, there is no evidence of a conspiracy
between Gillespie and Cornwell, and even if there were, Cornwell’s statement
about where Gillespie lived would not be in furtherance of it.
[26] Evidence Rule 803(1) describes a present sense impression as, “A statement
describing or explaining an event, condition or transaction, made while or
immediately after the declarant perceived it.” This exception is based on an
“assumption that the lack of time for deliberation provides reliability.” Hurt v.
State, 151 N.E.3d 809, 814 (Ind. Ct. App. 2020) (quotation omitted). And Rule
803(2) describes an excited utterance as, “A statement relating to a startling
event or condition, made while the declarant was under the stress of excitement
that it caused.” “The heart of the inquiry is whether the declarant was
incapable of thoughtful reflection.” Hurt, 151 N.E.3d at 813–14 (quotation
omitted). Cornwell’s statement fits neither of these exceptions, as it was not a
statement describing an event while or immediately after Cornwell perceived it
or a statement relating to a startling event.
[27] If Counsel had made a proper objection to Detective Andry’s testimony relating
Cornwell’s hearsay statement to the jury, there is a reasonable probability the
trial court would have sustained it. By failing to make a proper objection,
Counsel’s conduct fell below an objective standard of reasonableness.
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[28] Gillespie next contends Counsel’s performance was deficient when he allowed
Detective Andry to offer inadmissible testimony on re-cross examination.
Detective Andry relayed statements from three unnamed people about
Gillespie’s involvement in dealing drugs at Cornwell’s house, explained why
they were reliable, and said he was “confident [Gillespie and Cornwell are]
both meth dealers.” Trial Tr. Vol. 2 at 219. Counsel did not interrupt Detective
Andry’s gratuitous answers, object, or move to strike these statements. The
post-conviction court concluded “Counsel’s lack of control” during Detective
Andry’s testimony was arguably prejudicial to Gillespie, but Counsel “was
effective in establishing through Andry that [Cornwell] was the ‘main dealer,’”
not Gillespie, and in eliciting testimony that Detective Andry had not
personally witnessed any drug transactions or arranged any controlled buys
with Cornwell or Gillespie. Appellant’s PCR App. Vol. 2 at 99.
[29] Detective Andry’s testimony about drug transactions reported to him by three
people who told him “both [Cornwell] and [Gillespie] were involved in
dealing” was hearsay. The out of court statements were offered to prove
Gillespie was dealing methamphetamine. See Evid. R. 801. Evidence Rule
704(b) prohibits a witness from testifying to an opinion about “whether a
witness has testified truthfully” because “it is essential that the trier of fact
determine the credibility of the witnesses and the weight of the
evidence.” Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012).
Here, Detective Andry’s testimony went a step beyond, as he vouched for the
reliability of incriminating information provided by unnamed sources who did
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not testify at trial and were not subject to cross-examination. And Detective
Andry’s testimony he was confident Gillespie was a drug dealer was also
inadmissible under Evidence Rule 704(b), which explicitly prohibits a witness
from giving an opinion on the ultimate issue of guilt in criminal cases. See
Williams v. State, 43 N.E.3d 578, 580 (Ind. 2015) (testimony of detective who
observed a controlled buy that “there’s zero doubt in my mind that that was a
transaction for cocaine” was an “outright opinion of guilt” and thus
inadmissible).
[30] Counsel’s questions on re-cross and his failure to interject and move to strike
Detective Andry’s answers when they veered into inadmissible territory led to
the jury hearing hearsay statements from three unnamed people directly
implicating Gillespie in dealing methamphetamine, testimony vouching for the
credibility of those people, and opinion testimony about Gillespie’s guilt from a
police officer.
[31] If Counsel had moved to strike and admonish the jury to disregard Detective
Andry’s testimony, the trial court should have done so. Failure to prevent
admission of inadmissible, prejudicial evidence demonstrates deficient
performance. Tucker v. State, 646 N.E.2d 972, 977 (Ind. Ct. App. 1995).
Counsel’s performance in conducting re-cross examination of Detective Andry
fell below an objective standard of reasonableness.
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B. Accomplice Liability Jury Instruction
[32] Gillespie also claims Counsel’s performance was deficient for failing to object to
the trial court’s cursory accomplice liability instruction and tender a more
complete instruction. Again, Counsel supported Gillespie’s claim, and again,
the post-conviction court disagreed and concluded Counsel did not perform
deficiently because the “jury was properly instructed on accomplice liability.”
Appellant’s PCR App. Vol. 2 at 97. 4
[33] “In order to establish that counsel’s failure to object to a jury instruction was
ineffective assistance of counsel, a defendant must first prove that a
proper objection would have been sustained.” Lambert v. State, 743 N.E.2d 719,
741 (Ind. 2001) (quoting Potter v. State, 684 N.E.2d 1127, 1132 (Ind. 1997)), cert.
denied.
[34] A defendant’s mere presence at the scene of a crime, or mere acquiescence in
the commission of a crime, is not enough to support a conviction as an
accomplice. Bethel v. State, 110 N.E.3d 444, 450 (Ind. Ct. App. 2018), trans.
denied. The propriety of giving a “mere presence” instruction on accomplice
liability is well-settled. See, e.g., Wright v. State, 690 N.E.2d 1098, 1109–10 (Ind.
4
The post-conviction court also found the State “did not rely on the theory of accomplice liability” because
Gillespie “was not charged under the accomplice liability statute.” Id. However, the statute governing
accomplice liability “does not establish it as a separate crime, but merely as a separate basis for the crime
charged.” Hampton v. State, 719 N.E.2d 803, 807 (Ind. 1999). And the State did reference accomplice
liability in its closing argument, arguing Gillespie “was aiding . . . Cornwell in dealing in methamphetamine,
which is the same as him dealing in methamphetamine” and reading to the jury the trial court’s final
instruction on that issue. Trial Tr. Vol. 3 at 38.
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1997) (noting the Court’s previous approval of instructions informing jury that
“mere presence” and “negative acquiescence” were not enough to prove
accomplice liability); Fry v. State, 25 N.E.3d 237, 250 (Ind. Ct. App. 2015) (“As
a general rule, juries are instructed that a defendant’s mere presence is
insufficient to establish guilt in cases involving accomplice liability”), trans.
denied.
[35] The instruction given to the jury here was simply the statutory definition of
accomplice liability. See Trial Tr. Vol. 3 at 45; see also Ind. Code § 35-41-2-4(1977). Gillespie provided as an exhibit at the post-conviction hearing the
Indiana pattern jury instruction on accomplice liability that includes the
statutory definition and also the following language:
Before you may convict the Defendant of this crime, you must
find there is evidence of the Defendant’s affirmative conduct,
either in the form of acts or words, from which an inference of a
common design or purpose may be reasonably drawn. The
Defendant’s conduct must have been voluntary and in concert
with the other person.
The Defendant’s mere presence at the scene of the crime, or mere
acquiescence in the commission of the crime, is insufficient to
convict for aiding, inducing, or causing the crime charged[.]
PCR Ex. Vol. 1 at 91 (Indiana Pattern Criminal Jury Instruction 2.1600).
Despite Gillespie’s defense being that he was merely present at Cornwell’s
house when police arrived, Counsel did not object to the trial court’s instruction
or tender this pattern instruction.
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[36] In Peterson v. State, the trial court refused the defendant’s tendered accomplice
liability instruction that included the “mere presence” language and gave an
instruction that tracked the statutory language. 699 N.E.2d 701, 705–06 (Ind.
Ct. App. 1998). A panel of this Court held the trial court committed reversible
error because the tendered instruction was a correct statement of the law, was
supported by the evidence, and was not adequately covered by the given
instruction. Id. at 707. Although Peterson was not a post-conviction case, it
shows that had Counsel objected and tendered the pattern instruction in
furtherance of Gillespie’s defense that he did not participate in dealing
methamphetamine, the trial court should have given the fuller instruction.
Contrary to the post-conviction court’s conclusion, Counsel’s failure to object
to the trial court’s instruction and tender an alternate one constituted deficient
performance.
C. Pre-Trial Diversion Agreement
[37] Gillespie also claims Counsel’s performance was deficient in not objecting to
the admission of the pretrial diversion agreement on Evidence Rule 404(b)
grounds. See Appellant’s Br. at 27–31. This rule deems evidence of a crime,
wrong, or other act “not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the
character.” Ind. Evid. Rule 404(b)(1); see also Fairbanks v. State, 119 N.E.3d
564, 568 (Ind. 2019) (noting Rule 404(b) “prevents the jury from indulging in
the forbidden inference that a criminal defendant's prior wrongful conduct
suggests present guilt”) (internal quotation omitted), cert. denied. A pre-trial
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diversion agreement captioned “State of Indiana v. Kelly Gillespie” and stating,
“The State of Indiana agrees to defer the prosecution of the charge(s) against
the Defendant,” is evidence of a crime, wrong, or other act, and an objection
would have been appropriate. Trial Index of Ex. at 33. But the State pointed to
the agreement being found in Cornwell’s truck as evidence the two lived
together. Because Rule 404(b) evidence may be admissible for another purpose,
Evid. R. 404(b)(2), it is not clear the trial court would have sustained an
objection if made. Moreover, the post-conviction court’s finding the agreement
was at worst benign and at best supported Gillespie’s defense is not clearly
erroneous.
D. Summary
[38] We conclude Gillespie has satisfied the first prong of the two-part test
articulated in Strickland—Gillespie has shown Counsel’s representation “fell
below an objective standard of reasonableness” when he failed to object to
inadmissible evidence during Detective Andry’s testimony and failed to object
or tender an alternate accomplice liability jury instruction. 466 U.S. at 688.
Next, we turn to the second prong of the Strickland test—that is, Gillespie must
also show “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
2. Gillespie was prejudiced by Counsel’s errors.
[39] “Generally, trial errors that do not justify reversal when taken separately also
do not justify reversal when taken together.” Weisheit v. State, 109 N.E.3d 978,
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992 (Ind. 2018), cert. denied. That said, in an ineffective assistance of counsel
context, we assess “the cumulative prejudice accruing to the accused” to
determine whether the “compilation of counsel’s errors has rendered the result
unreliable, necessitating reversal under Strickland’s second prong.” Smith v.
State, 547 N.E.2d 817, 819–20 (Ind. 1989).
[40] The post-conviction court concluded none of Gillespie’s claims of ineffective
assistance were individually sufficient to support relief and “[a]s such, the
assertion that the cumulative errors support the ineffective assistance of counsel
claim must also fail.” Appellant’s PCR App. Vol. 2 at 99. Having found the post-
conviction court’s legal conclusions as to deficient performance were clearly
erroneous, however, we consider whether there is a reasonable probability that
but for Counsel’s errors, the result of Gillespie’s trial would have been different.
[41] Counsel’s deficient performance in the instances discussed above greatly
prejudiced Gillespie’s defense. “A defendant’s objection on grounds of hearsay
is critical. This is so because ‘[o]therwise inadmissible hearsay evidence may be
considered for substantive purposes and is sufficient to establish a material fact
at issue when the hearsay evidence is admitted without a timely objection at
trial.’” Humphrey, 73 N.E.3d at 684 (quoting Banks v. State, 567 N.E.2d 1126,
1129 (Ind. 1991)). That is precisely what occurred here. Hearsay evidence was
the only evidence presented at trial showing Gillespie was more than a visitor at
Cornwell’s house. The State relied on this evidence in its closing argument to
the jury. Failing to object to this evidence allowed it to be used to establish
Gillespie’s interest in the house and involvement in activities there.
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[42] Disregarding that evidence, the evidence presented at Gillespie’s trial was far
from overwhelming. Gillespie’s truck was parked at Cornwell’s house, and he
answered the door when police knocked. Items linked to Gillespie were found
in Cornwell’s truck, but none of his personal items were found in the house.
None of the inadmissible evidence was cumulative of other, properly admitted
evidence. See Cooley v. State, 682 N.E.2d 1277, 1282 (Ind. 1997) (where hearsay
evidence is merely cumulative of other evidence properly admitted, the
probable impact of the evidence on the jury is “sufficiently minor so as not to
affect the substantial rights of the parties”) (quotation omitted). The prejudice
from the inadmissible statements was compounded by the trial court’s cursory
accomplice liability instruction, which focused on the law stating a person
could be convicted as an accomplice regardless of whether the other person had
been prosecuted or convicted and failed to focus on Gillespie’s knowledge and
conduct.
[43] Counsel’s errors, which permitted the jury to consider the only evidence directly
connecting Gillespie to Cornwell’s residence, are sufficient to undermine our
confidence in the verdict rendered in this case. Viewing the evidence without
the inadmissible statements and with a full accomplice liability instruction, there
is a reasonable probability the result of Gillespie’s trial would have been
different.
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Conclusion
[44] Gillespie has shown the evidence leads unerringly and unmistakably to a
conclusion opposite that reached by the post-conviction court. We reverse the
post-conviction court’s judgment and remand this case for a new trial.
[45] Reversed and remanded.
May, J., and Vaidik, J., concur.
ATTORNEYS FOR APPELLANT
Amy E. Karozos
State Public Defender
Randy A. Elliot
Deputy State Public Defender
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
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