Derek Franklin Williams v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any May 14 2018, 11:03 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael C. Keating Curtis T. Hill, Jr.
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derek Franklin Williams, May 14, 2018
Appellant-Petitioner, Court of Appeals Case No.
14A04-1708-PC-1964
v. Appeal from the Daviess Superior
Court
State of Indiana, The Honorable Dean A. Sobecki,
Appellee-Respondent Judge
Trial Court Cause No.
14D01-1406-PC-611
Baker, Judge.
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[1] Derek Franklin Williams appeals the denial of his petition for post-conviction
relief. Williams argues that trial counsel was ineffective for failing to object to
certain testimony, sufficiently cross-examine a witness, object to the admission
of a photograph into evidence, raise a claim of self-defense or voluntary
manslaughter, and object to statements made by the prosecutor during closing
argument. Finding no error, we affirm.
Facts
[2] The underlying facts, as described by this Court in Williams’s direct appeal, are
as follows:
Williams and the victim, Kim Williams, were married in 1995
and two children were born of the marriage. T.W. was born in
1997, and R.W. was born in 2004. . . .
. . . Near the end of January 2011, Williams, who was working in
Hawaii, learned that Kim had filed a petition for the dissolution
of their marriage.
Williams told his work supervisor, Scott Greenan about his
concern that the divorce would result in Williams losing some of
his retirement money. The week of Kim’s death, Williams had
several conversations with Greenan about the financial aspects of
the divorce. Greenan observed that Williams seemed bothered
quite a bit and was upset about the matter. . . .
Williams also discussed the topic [of] his impending dissolution
with Kevin Chase, a coworker. . . . One day after work,
Williams told Chase that it would “just be easier to kill the
bitch.” Id. at 560.
On the evening of February 3, 2011, T.W. and Kim watched
several television shows together while R.W. was already asleep
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in bed. At approximately, 8:40 p.m., Williams came home and
went to his office in the family’s home. T.W. went to bed
sometime between 9:00 p.m. and 9:30 p.m. At approximately,
12:40 a.m., T.W. awoke to hear his mother screaming and
crying, in a manner which he had never before heard, and which
was indicative of the fact that she was in a great deal of pain.
T.W. heard Kim ask “Why are you doing this?” Transcript at
317. Williams responded in an angry voice, “Does that
hurt?” Id. T.W. arose from bed to use the bathroom and then
returned to his bed. A few minutes after lying back down, T.W.
heard the sound of four gunshots.
T.W. got out of bed, turned on the lights, and walked to the area
between the living room and the kitchen. He observed his
mother’s motionless body on the floor next to the fireplace and
could tell that she had been shot. Williams was rolling around
on the floor and it appeared to T.W. that Williams had shot
himself. T.W. cursed at his father and asked him why he would
do something like that. He then ran to the kitchen, and grabbed
Kim’s phone. On his way back to his bedroom, T.W.
encountered R.W. in the hallway. R.W. asked T.W. why he was
yelling. T.W. placed R.W. in his room and dialed 911.
***
[When sheriff’s deputies responded and entered the home, they]
observed that Williams was covered in blood and looked as if his
face was coming apart. Williams assumed a shooter’s stance and
yelled, “Bang!” Transcript at 227. Williams then disappeared
before reappearing and engaging in the same behavior. Williams
then approached Deputy Bledsoe at a rapid pace and grabbed
him. During the ensuing struggle, Deputy Bledsoe attempted to
subdue Williams and prevent him from grabbing the sidearm.
With Deputy Wise’s help, Deputy Bledsoe was able to restrain
Williams.
Deputy Bledsoe asked Williams, “Who did this?” Transcript at
236. Williams motioned toward the living room and responded,
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“Ask her.” Id. Deputy Bledsoe observed Kim’s body for the first
time when he looked in the direction indicated by Williams.
Kim was bleeding from her face. Deputy Bledsoe then asked
Williams where the gun was located. Williams again responded,
“Ask her.” Transcript at 237. . . .
***
During the ensuing police investigation, Williams’s Glock
handgun was found in the living room and divorce papers were
found in the passenger seat of Williams’s car. A forensic DNA
analyst from the Indiana State Police Department determined
that the blood and DNA found at the scene belonged to Williams
and Kim. A bullet retrieved from the ceiling rafters had
Williams’s DNA on it from passing through his face when he
was shot. A Naval Criminal Investigative Service Special Agent,
who worked as a forensic consultant on the case, concluded that
Kim was lying down when she was shot.
***
During the forensic pathologist’s examination of Kim, he found
that she had sustained four gunshot wounds, including two
wounds to her face as well as gunshot wounds on her arm. The
pathologist concluded from the location of the wounds that Kim
had been shot first in the arm while she was in a defensive
position, and that when the bullet exited her arm, it struck her
face. That bullet then entered Kim's brain, leaving her
incapacitated and unable to take any conscious action. Kim was
then shot again in the face from less than a foot away. The
pathologist concluded that Kim died as a result of a gunshot to
her face, which caused the bullet to pass through her brain.
The State charged Williams with murder on February 22,
2011. . . . At the conclusion of the jury trial, Williams was found
guilty of murder.
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Will. v. State, No. 14A01-1205-CR-201, at *1-*3 (Ind. Ct. App. Mar. 19,
2013). The trial court sentenced Williams to sixty-five years imprisonment.
Williams filed a direct appeal, arguing that there was an error with respect to
jury instructions and that the sentence was inappropriate. This Court affirmed
the conviction and sentence. Id. at *7.
[3] On June 20, 2014, Williams filed a pro se petition for post-conviction relief,
which was later amended by counsel. In pertinent part, Williams argued that
he received the ineffective assistance of trial counsel. Following a hearing, the
post-conviction court denied Williams’s petition on August 1, 2017. Williams
now appeals.
Discussion and Decision
I. Standard of Review
[4] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“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).
“When appealing from 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
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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) (quotation omitted).
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
[5] A claim of ineffective assistance of trial counsel requires a showing that:
(1) counsel’s performance was deficient by falling below an objective standard
of reasonableness based on prevailing professional norms; and (2) counsel’s
performance prejudiced the defendant such that “‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444
(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A
reasonable probability arises when there is a ‘probability sufficient to undermine
confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.
2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two
prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.
Ct. App. 2012).
II. Assistance of Trial Counsel
[6] Williams argues that his trial counsel was ineffective in the following respects:
(1) failing to object to certain questions asked of T.W. on direct examination
and failing to sufficiently cross-examine T.W.; (2) failing to object to the
testimony of the pathologist; (3) failing to object to the introduction of a
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photograph into evidence; (4) failing to raise claims of self-defense or voluntary
manslaughter; and (5) failing to object to comments made by the prosecutor
during closing arguments.
A. Dealing with Witnesses
[7] Williams first contends that trial counsel was ineffective for the way in which
she handled T.W. and the pathologist as witnesses. Specifically, Williams
argues that counsel should have objected to several questions asked of T.W. on
direct examination because they were leading, irrelevant, or called for an
opinion; that counsel should have asked more than five questions of T.W. on
cross-examination; and that counsel should have objected to questions asked of
the pathologist on redirect examination.
[8] To establish ineffective assistance for failure to object, the petitioner must
establish that the objection would have been sustained and that the petitioner
was prejudiced by the failure to object. Law v. State, 797 N.E.2d 1157, 1164
(Ind. Ct. App. 2003). Additionally, “[i]t is well settled that the nature and
extent of cross-examination is a matter of strategy delegated to trial counsel.”
Myers v. State, 33 N.E.3d 1077, 1101 (Ind. Ct. App. 2015).
1. Direct Examination of T.W.
[9] Williams first directs our attention to the following discussion that occurred
during the direct examination of T.W.:
State: Tell the jury a little bit about your mom.
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T.W.: She was a—she loved tending to the garden, she loved
cats, she loved me and [R.W.] with all her heart, she put
us before anything else.
State: Is there anything else she would like to do?
T.W.: Uh . . .
State: Sorority?
T.W.: Yes, she was in a sorority. She helped out at Griffith
Elementary as much as she could and at my school,
Washington Junior High.
Trial Tr. Vol. II p. 307. Williams contends that his trial counsel should have
objected to this line of questioning because it was irrelevant and its “obvious
purpose was to bolster the image of the decedent in the eyes of a jury, thereby
prejudicing” Williams. Appellant’s Br. p. 12. Williams does not explain,
however, how he was prejudiced by the jury learning that T.W.’s mother had
common interests such as gardening, cats, and her children. See Elliott v. State,
630 N.E.2d 202, 204 (Ind. 1994) (holding that testimony from murder victim’s
mother regarding her son’s background was relevant and properly admitted).
We disagree that this testimony prejudiced Williams and find that counsel was
not ineffective for failing to object to it.
[10] Next, Williams points to the following discussions during direct examination:
State: Okay, is [your father] saying that in a sad voice or in an
angry voice?
T.W.: In an anger rage voice.
State: A rage voice?
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T.W.: Yeah, he was mad.
***
State: Okay, and I’m sorry, so you see your mom laying here—
dad, what’s he doing?
T.W.: He’s rolling around with his feet in like a choppy manner.
State: What does it look like to you?
T.W.: Uh, him rolling in like a worm, I would say.
State: Is he . . .
T.W.: He’s gargling, you know.
State: Does it appear that he has . . .
T.W.: Yes, it appears that he has shot himself.
***
State: All right. [T.W.], based on what you observed and you
heard . . . , I want you to look at the jury and you tell them what
happened.
T.W.: My dad . . .
State: Just say it, [T.W.]
T.W.: My dad shot and killed my mom.
State: And, then, what did he do to himself?
T.W.: And, shot himself.
Trial Tr. Vol. II p. 317-18, 325. Williams argues that trial counsel should have
objected to these questions because it was inadmissible lay witness testimony.
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[11] Opinion testimony of a lay witness is admissible if the testimony is “(a)
rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’s testimony or the determination of a fact in
issue.” Ind. Evidence Rule 701. The requirement that the opinion be rationally
based on perception “‘means simply that the opinion must be one that a
reasonable person normally could form from the perceived facts.’” Mariscal v.
State, 687 N.E.2d 378, 380 (Ind. Ct. App. 1997) (quoting Kent v. State, 675
N.E.2d 332, 338 (Ind. 1996)). Here, T.W.’s perception of what happened was
one that a reasonable person could normally form from the circumstances.
Based on what T.W. heard before the shooting and his observations of his
parents immediately after the shooting, he was clearly in a position to offer a
rational and helpful opinion on the nature of the shooting. We can only
conclude that even if counsel had objected to these questions, her objections
would have been overruled. Therefore, she was not ineffective for this reason.
[12] Finally, Williams points us to the following questions asked of T.W. during
direct examination:
State: So, [R.W.], did he come out of his bedroom?
T.W.: Yeah, he came out of his room and stood right there.
State: And, so, what did you do with him?
T.W.: I hit him as hard as I could to get him in my arm and pick
him up.
State: Why?
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T.W.: Because I wanted to get to get [sic] out of here as fast as I
could.
State: Why?
T.W.: To call 911.
State: But, why? Why did you want to get out of here as fast as
you could?
T.W.: I wanted to get to my room.
State: Why?
T.W.: So I could call 911.
State: Is it safe to say you didn’t want [R.W.] to see your mom
like that?
T.W.: Yes, exactly, yes.
Trial Tr. Vol. II p. 321. Williams argues that trial counsel should have objected
to this testimony because the questions were leading, but he does not articulate
why the admission of this testimony was prejudicial to him. Moreover, even if
counsel had objected, and the objection had been sustained, the prosecutor
would merely have rephrased the question. In other words, this evidence
would have been admitted even if an objection had been made. We find no
ineffective assistance on this basis.
2. Cross-Examination of T.W.
[13] Williams next complains that trial counsel did not conduct a sufficient cross-
examination. Specifically, he argues that counsel should have questioned T.W.
about certain allegedly inconsistent statements T.W. had made during his
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pretrial deposition. At the post-conviction hearing, trial counsel explained that
the jury appeared “incredibly sympathetic” towards T.W. and that a
“hardcore” cross-examination would have alienated the jury against her and
Williams. PCR Tr. p. 34. In counsel’s opinion, the faster she got T.W. off the
witness stand, the better. She believed that it “was better for [Williams] to
come off as a caring father who didn’t want to put his son through a lot than it
was for me to make my objections.” Id. at 55. Counsel’s primary goal for
T.W.’s testimony was to elicit the fact that he did not actually see what had
occurred, and she achieved that goal. We find that this strategy was eminently
reasonable and decline to second-guess it. We do not find counsel ineffective in
this regard.
3. Pathologist
[14] Next, Williams argues that trial counsel should have objected to the following
discussion that occurred during the redirect examination of the forensic
pathologist:
State: Doctor, since this isn’t a suicide or an accident, how
did you rule it?
Doctor: Well, the coroner, actually, determines the—which
of the five choice [sic] of death certificate, but it
would be my opinion this is a homicide.
***
State: How did you characterize the second shot in your
report?
Doctor: It’s a very close range, non contact gunshot wound.
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State: But, in light of the first shot, how did you
characterize it, what did you say it was for?
Doctor: Well, I—given the very close range and the nature
of one gunshot to the head, or face, had—we have
to say the second shot is to make sure she is
finished.
Trial Tr. Vol. II p. 377-78. Williams contends that by saying that the cause of
the victim’s death was “homicide,” the pathologist impermissibly testified
regarding Williams’s guilt. He also contends that by saying the purpose of the
second shot was to make sure the victim was “finished,” the pathologist
impermissibly testified as to Williams’s intent. See Ind. Evidence Rule 704(B)
(witnesses may not testify to opinions regarding the defendant’s intent, guilt, or
innocence in a criminal case).
[15] As to the use of the term “homicide,” our Supreme Court has noted that a
pathologist is allowed to testify that the manner of the victim’s death “was
homicide, among other opinions he formed independently.” Ackerman v. State,
51 N.E.3d 171, 189 (Ind. 2016). We agree with the State that from a lay
person’s point of view, the term “homicide” simply means that one person has
killed another. Consequently, the pathologist’s use of this term was not
impermissible, nor did it prejudice Williams.
[16] As to the pathologist’s testimony regarding the purpose of the second shot,
multiple panels of this Court have found that expert testimony regarding the
intent of a person committing the crime at issue is admissible so long as the
expert does not testify that the defendant is the one who committed the crime.
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See, e.g., Dexter v. State, 945 N.E.2d 220, 222 (Ind. Ct. App. 2011) (permissible
for physician to testify that trauma to minor’s head was “most likely an abusive
head trauma” because the witness did not testify that she believed the defendant
was responsible), summarily aff’d in relevant part, 959 N.E.2d 235 (Ind. 2012);
Julian v. State, 811 N.E.2d 392, 400 (Ind. Ct. App. 2004) (permissible for an
arson investigator to testify that the fire was set intentionally because
investigator did not testify that the defendant intended to set the fire). Here,
likewise, the pathologist did not testify that he believed that Williams was
responsible for the victim’s injuries and death. Therefore, any objection would
have been overruled. We find no ineffective assistance on this basis.
B. Photograph
[17] Williams next argues that trial counsel should have objected to the admission of
a photograph of the victim, her children, and their two dogs. According to
Williams, this evidence was unduly prejudicial.
[18] At the post-conviction hearing, trial counsel explained that she had challenged
the admissibility of the photograph before trial, but the trial court had denied
her request to have it excluded. When asked why she did not renew her
objection at trial, counsel testified that she generally does not object in front of a
jury when she knows that she is “going to get overruled unless I think it’s going
to really help to say it, and I didn’t think that was going to help with that.”
PCR Tr. p. 43. We find that this was a reasonable strategic decision and
decline to second-guess it. See Curtis v. State, 905 N.E.2d 410, 418 (Ind. Ct.
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Ohio App. 2009) (holding that “‘counsel cannot be faulted for failing to make an
objection which had no hope of success and which might have the adverse
effect before the jury of emphasizing the admissibility of [the evidence]’”)
(quoting Garrett v. State, 602 N.E.2d 139, 141 (Ind. 1992)).
C. Self-Defense/Voluntary Manslaughter
[19] Next, Williams argues that trial counsel was ineffective for failing to raise a
claim of self-defense or voluntary manslaughter. In fact, counsel did attempt to
argue that Williams was guilty of voluntary manslaughter, but the trial court
sustained the State’s objection that no evidence of sudden heat had been
presented. According to Williams, trial counsel should have called him as a
witness, in which case such evidence would have been in the record.
[20] With respect to a claim of self-defense, the pathologist concluded that the
victim was first shot in the arm, when she had been in a defensive position, and
that when the bullet exited her arm, it hit her face and entered her brain, leaving
her incapacitated and unable to take any conscious action. She was then shot
again, in the face, from less than a foot away. This testimony, alone, made any
claim of self-defense untenable, and trial counsel was not ineffective for failing
to pursue this strategy.1
1
We also note that if Williams had pursued this strategy, the State could have introduced into evidence a jail
phone call in which Williams’s statements regarding the incident were not consistent with any claim that he
acted in self-defense.
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[21] With regard to voluntary manslaughter, Williams admitted at the post-
conviction hearing that he did not want to testify that he voluntarily killed the
victim while acting under sudden heat. Therefore, there is no reason to believe
that calling him to testify would have supported a claim that he committed
voluntary manslaughter instead of murder. And even if he had testified that he
acted in sudden heat, the State could have introduced a jail phone call into
evidence in which Williams described the incident in terms inconsistent with a
claim of sudden heat. Finally, trial counsel testified that Williams gave her
several different versions of the incident over the course of her representation of
him, and she therefore had a very real concern about how his testimony would
hold up under cross-examination. Under these circumstances, we do not find
that counsel was ineffective for failing to pursue a claim of voluntary
manslaughter.2
D. Closing Arguments
[22] Finally, Williams argues that counsel was ineffective for failing to object to the
following statements made by the prosecutor during closing argument:
He can’t even hold it in even as he is being cuffed and he says,
ask her, ask her, ask the bitch, right?
2
Williams attempts to make a somewhat undeveloped and unclear argument that counsel’s defense strategy
as a whole was “inconsistent and erratic,” reply br. p. 14, complaining that while counsel argued that the
State had failed to prove knowledge or intent, she also acknowledged that he had shot his wife twice and then
shot himself. In our view, counsel did the best she could with a client whose version of events changed
several times, compelling eye witness testimony from his son and responding officers, and damning physical
evidence and expert testimony. Under these circumstances, we do not find that her defense strategy as a
whole was unreasonable or ineffective.
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***
You know, one of [the victim’s] final acts might have been to
hide that gun because it landed right behind her head and he
couldn’t find it.
***
I don’t want you to remember her like this, I want you to
remember her like this, on a good day, with her boys beside her,
and her dogs, on a beautiful Easter Sunday, and I want you to be
able to say, I want you to think about this, when it was my turn,
okay, when the responsibility was mine, and I saw the evidence,
to convict a man of murder, I was strong enough and I was smart
enough, and I did that very thing. Remember her like this. You
can’t put her back in this picture, folks, you can’t do that, you
can’t bring her back, but you can say, not me, I did right by [the
victim], a woman I never knew.
Trial Tr. Vol. III p. 707, 712. Williams argues that the first and second
statements do not reflect the evidence introduced at trial and that the third
statement urged the jury to convict Williams for reasons other than his guilt.
To prove ineffective assistance for failure to object during closing argument, the
defendant must prove that his objections would have been sustained, that the
failure to object was unreasonable, and that he was prejudiced thereby. Potter v.
State, 684 N.E.2d 1127, 1134 (Ind. 1997).
[23] With respect to the first statement made by the prosecutor, the record reflects
that a deputy testified that when he asked Williams what had happened,
Williams twice told the deputy to “[a]sk her.” Trial Tr. Vol. II p. 236-37.
Williams had also told his coworker shortly before the murder that it would
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“just be easier to kill the bitch.” Id. at 560. Therefore, while it is true that
Williams did not refer to the victim as a “bitch” while being handcuffed, it is
also true that he did refer to her as such shortly before killing her. While the
statement by the prosecutor may have been an inartful combination of
Williams’s statements on two different occasions, it was, in fact, based on
evidence in the record. Therefore, any objection would have been overruled.
[24] With respect to the second statement, it is true that the pathologist testified that
the victim would have been incapable of any voluntary movement, such as
hiding the gun, after being shot the first time. The prosecutor, however, did not
claim that the victim had intentionally hidden the gun. It is reasonable to infer
that the State was merely referring to the fact that it was fortuitous for the
deputies that the victim’s body hid the gun from Williams as the deputies
entered the house. But even if the prosecutor was referring to a conscious act
committed by the victim, Williams fails to show how he could have been
prejudiced by a reference to what she might have done after she had already
been shot twice in the face. Furthermore, the trial court instructed the jury in
the final jury instructions that “[s]tatements made by the attorneys are not
evidence.” Direct Appeal Appellant’s App. Vol. III p. 621; see also, e.g., Surber v.
State, 884 N.E.2d 856, 866 (Ind. Ct. App. 2008) (even if prosecutor’s statements
during closing argument amounted to misconduct, jury instruction that attorney
statements are not evidence mitigated against a finding of prejudice). Under
these circumstances, we find that trial counsel was not ineffective for failing to
object to this statement.
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[25] As for the third statement, Williams does not develop a substantial argument as
to why counsel was ineffective for failing to object to it. Instead, he makes a
conclusory statement that these comments “urged the jury to convict [Williams]
for reasons other than his guilt.” Appellant’s Br. p. 16. We agree with the State
that when viewed in context, this statement amounts to little more than a
request that the jury convict Williams based on the evidence that he committed
murder. See Hand v. State, 863 N.E.2d 386, 396 (Ind. Ct. App. 2007) (where
prosecutor’s comments indicated “that the jury should convict [the defendant]
for [the victim], her family, and the community as a whole, the gravamen of
those comments was that the evidence presented at trial supported the State’s
charges and, therefore, [the defendant] should be held accountable for his
actions and convicted”). Williams has failed to show that it was unreasonable
for trial counsel to refrain from objecting to this statement or that he was
prejudiced thereby. In other words, we do not find trial counsel ineffective for
failing to object to this statement.
[26] Finally, Williams argues that the cumulative effect of all the alleged instances of
misconduct amounts to reversible error. As we have found no error on any of
the grounds raised by Williams, we do not find that the cumulative effect of
these instances amounts to any error, let alone reversible error.
[27] The judgment of the post-conviction court is affirmed.
Kirsch, J., and Bradford, J., concur.
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