Arthur L. Gates v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Nov 05 2015, 8:29 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
William D. Polansky Michael Gene Worden
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Arthur L. Gates, November 5, 2015
Appellant-Petitioner, Court of Appeals Case No.
82A01-1504-PC-149
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Judge
Appellee-Respondent.
Trial Court Cause No. 82D03-0905-
PC-3
Bradford, Judge.
Case Summary
[1] Appellant-Petitioner was convicted in 2008 of Class A felony rape, Class D
felony residential entry, and Class D felony criminal confinement, for which he
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received an aggregate forty-eight-year sentence. At trial, Appellee-Respondent
the State of Indiana presented forensic evidence, including evidence that P30, a
protein in seminal fluid, was found in an external vaginal swab of the victim
and that one sperm head was found in an oral swab. In addition, dried
secretions and bite mark collections swabs were tested for DNA and Gates
could not be excluded. On direct appeal, Gates appealed his sentence, and we
affirmed the judgment of the trial court.
[2] In 2009, Gates filed a pro se petition for post-conviction relief (“PCR”). In
2013, Gates, by counsel, filed a motion for DNA testing, which the post-
conviction court granted. At the evidentiary hearing, Gates presented the
testimony from an expert who opined that the new DNA testing refuted
evidence presented by the State at trial. The post-conviction court concluded
that Gates’s new evidence was not likely to produce a different result at retrial
and concluded that Gates did not receive ineffective assistance of trial counsel
and so denied his PCR petition. Gates contends that the post-conviction court
erred in denying both of his claims. Because we disagree, we affirm.
Facts and Procedural History
[3] The background for this appeal was outlined by this court in our disposition of
Gates’s direct appeal:
On the night of May 22, 2007, Gates knocked on the door of
B.D.’s residence at 517 Covert Avenue in Evansville and forced
his way inside. B.D. has a mental disability and lives alone with
her dog. B.D. recognized Gates, who was her neighbor’s
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acquaintance. Gates engaged B.D. in a lengthy conversation
about various topics. At some point Gates pulled out a gun,
pointed it at B.D., and threatened to shoot both B.D. and her dog
if she would not have sex with him. As B.D. repeatedly refused,
Gates choked B.D. and hit her in her face multiple times with his
fists, breaking her glasses and cutting her forehead. Gates locked
the front door and pushed B.D. into her bedroom. In her efforts
to escape from Gates, B.D. bumped her head against a wall and
against the dresser in her bedroom, cutting her head. Gates told
B.D. to remove her clothes, then forcibly removed her nightgown
and panties. Gates placed his penis into B.D.’s vagina and licked
her breast. According to B.D., Gates subsequently ejaculated
onto her breast and passed out on her bed.
B.D. then dressed herself in shorts and a gown, fled the house
with her dog, and flagged down Evansville Police Officer Donald
Thompson, who was nearby. When Officer Thompson and
other authorities, including Sergeant Brent Hoover, arrived at
B.D.’s home, they found Gates on the bed in the bedroom,
clothed only in pants pulled down around his ankles. Gates,
who smelled of alcohol, appeared to have passed out. A weapon
appearing to be a handgun was on the floor next to the bed.
After another officer kicked the mattress, Gates sat up, clenched
his fists and cursed. Sergeant Hoover used a taser to subdue
Gates.
Subsequent medical examinations revealed a tear to B.D.’s
hymen, a four-centimeter laceration to her head requiring staples,
and multiple facial bruises and scratches. DNA tests performed
on a substance found on B.D.’s left breast revealed results
consistent with Gates’s DNA profile.
Gates v. State, Cause No. 82A01-0806-CR-302 at *1-2 (Ind. Ct. App., Jan. 30,
2009) (footnotes omitted).
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[4] Sara Walker testified regarding DNA testing at Gates’s trial. Walker had tested
for a protein named P30, which she testified was a “prostate specific protein
that’s found in seminal fluid.” Trial Tr. p. 430. Walker also testified that it
would be possible to have seminal fluid even without sperm. Item 1B, the
external vaginal swab of B.D., tested positive for P30, although Walker
conceded on cross-examination that the test yielded a “weak positive.” Trial
Tr. pp. 429, 447-48. Item 1G, “a dried secretion and bite mark swab” collected
from B.D.’s left breast, was also tested. Trial Tr. p. 436. DNA testing on item
1G indicated a mixture of DNA from Gates and B.D. such that there was a 1 in
270,600 chance “that a random individual would be included in the mixed
DNA profile[.]” State’s Ex. 42 at 3. (Trial Tr. 438-39). Walker also testified
that Item 1R, the oral smear, yielded one sperm head.
[5] On May 29, 2009, Gates filed a pro se PCR petition, alleging that he had been
denied his right to a speedy trial, his right to a fair trial was violated, and that he
received ineffective assistance of trial and appellate counsel. On March 27,
2013, Gates, by counsel, filed a motion for DNA testing. At an evidentiary
hearing on his motion for additional DNA testing held on March 5, 2014,
Gates called Karl Reich, Ph.D., to the stand. Reich filed a report and criticized
the State’s forensic evidence at trial, specifically the positive P30 test of the
outer vaginal swab and Walker’s conclusion that the oral smear contained a
sperm head. PCR Ex. 8 at 5-6. According to Reich, P30 is not exclusively
found in males. Reich also noted that the State used the ABA card method for
testing for P30 when the alternative RSID-Semen test had been available since
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2006. According to Reich, the RSID-Semen test is more specific and generates
far fewer false-positive results.
[6] On March 27, 2014, the trial court granted Gates’s motion for additional DNA
testing. On November 17, 2014, Gates filed an amended PCR petition, alleging
that newly-discovered evidence and ineffective assistance of trial counsel
entitled him to relief.
[7] On January 23, 2015, the post-conviction court held an evidentiary hearing on
Gates’s amended PCR petition, at which Reich again testified. The results of
the new testing indicated that Item 1B was negative for seminal fluid, as was
Item 1G and item 1D (the oral swab from which Item 1R was made). PCR Ex.
11 at 2. The three items were also determined to contain no sperm. PCR Ex.
11 at 2-3. Gates introduced an affidavit from his trial counsel, in which trial
counsel averred that neither he nor co-counsel considered hiring an expert to
challenge the State’s forensic evidence because they believed that the results
helped Gates more than they hurt him. PCR Ex. 3. Trial counsel also
indicated that he believed at the time that P30 was a male-only material. PCR
Ex. 3.
[8] On March 27, 2015, the post-conviction court issued its order denying Gates
post-conviction relief. The post-conviction court found that Gates had satisfied
eight of the nine requirements in order to receive relief from newly-discovered
evidence but had failed to establish that it would probably produce a different
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result at trial. The post-conviction court also concluded that Gates had not
received ineffective assistance of trial counsel.
Discussion and Decision
Standard of Review
[9] Our standard for reviewing the denial of a PCR petition is well-settled:
In reviewing the judgment of a post-conviction court, appellate
courts consider only the evidence and reasonable inferences
supporting its judgment. The post-conviction court is the sole
judge of the evidence and the credibility of the witnesses. To
prevail on appeal from denial of post-conviction relief, the
petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite to that
reached by the post-conviction court.… Only where the evidence
is without conflict and leads to but one conclusion, and the post-
conviction court has reached the opposite conclusion, will its
findings or conclusions be disturbed as being contrary to law.
Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and
quotations omitted).
I. Newly Discovered Evidence
[10] Gates contends that the post-conviction court erred in concluding that the
results of the retesting of the physical evidence do not entitle him to post-
conviction relief.
[N]ew evidence will mandate a new trial only when the
defendant demonstrates that: (1) the evidence has been
discovered since the trial; (2) it is material and relevant; (3) it is
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not cumulative; (4) it is not merely impeaching; (5) it is not
privileged or incompetent; (6) due diligence was used to discover
it in time for trial; (7) the evidence is worthy of credit; (8) it can
be produced upon a retrial of the case; and (9) it will probably
produce a different result at retrial.
Taylor v. State, 840 N.E.2d 324, 329-30 (Ind. 2006) (quoting Carter v. State, 738
N.E.2d 665, 671 (Ind. 2000)).
[11] The post-conviction court concluded that Gates satisfied the first eight of these
requirements but not that the evidence in question would likely produce a
different result at retrial. We conclude that this was not error. As the post-
conviction court pointed out in its order, Gates’s identity was never really in
question in this case, only what he did, and the test results, whether the State’s
or Gates’s, did not do nearly as much to clarify Gates’s actions as other
evidence, of which there was much.
[12] The State presented substantial evidence that Gates sexually assaulted B.D.
Not only did the jury hear B.D.’s testimony to that effect, it heard evidence that
B.D. sustained a hymenal tear consistent with sexual assault; Gates threatened
B.D. with a gun; a toy gun was found next to B.D.’s bed; Gates was found
naked in B.D.’s bed; Gates resisted arrest; B.D. suffered significant injury to her
face, head, and arms; B.D.’s home suffered damage including a hole in the
wall; and Gates lied to police about being in B.D.’s bedroom and knowing her
previously. The post-conviction court, which also presided over Gates’s trial,
found B.D.’s trial testimony to be “moving and persuasive[,]” Appellant’s App.
p. 108, and noted that the forensic evidence was not even mentioned by the
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State during its closing argument. In light of the whole of the trial record, the
post-conviction court did not err in concluding that the State’s forensic evidence
played little part in Gates’s convictions.
[13] In any event, the results of the new testing did little to undermine the State’s
original testing. Gates’s testing challenged only the State’s trial evidence that
seminal fluid was found in the outer vaginal swab and a sperm head was found
in Item 1R. As for the positive P30 test, even Walker admitted on the stand
that the results of the test were a “weak positive[,]” Trial Tr. pp. 447-48, and
Reich conceded that penetration could occur without seminal fluid being found.
As for the sperm head Walker testified to finding in Item 1R, Gates only
retested the oral swab from which Item 1R was drawn, not Item 1R. In
summary, the State’s forensic evidence was relatively weak to begin with, and
the results of the retesting did not completely undermine it. Considering the
strength of the State’s other evidence of Gates’s guilt, the post-conviction court
did not err in concluding that Gates failed to establish that the new test results
would result in a different result at trial.
II. Ineffective Assistance of Trial Counsel
[14] We review claims of ineffective assistance of counsel based upon the principles
enunciated in Strickland v. Washington, 466 U.S. 668 (1984):
Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), a claim of ineffective assistance of counsel
requires a showing that: (1) counsel’s performance was deficient
by falling below an objective standard of reasonableness based on
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prevailing professional norms; and (2) counsel’s performance
prejudiced the defendant so much that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 687, 694,
104 S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.
1994). …. Failure to satisfy either prong will cause the claim to
fail. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).
French v. State, 778 N.E.2d 816, 824 (Ind. 2002).
[15] Moreover, counsel is given wide discretion in determining strategy and tactics,
and therefore courts will accord these decisions deference. Timberlake v. State,
753 N.E.2d 591, 603 (Ind. 2001). “A strong presumption arises that counsel
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. “Whether a lawyer performed
reasonably under the circumstances is determined by examining the whole of
the lawyer’s work on a case.” Oliver v. State, 843 N.E.2d 581, 591 (Ind. Ct.
App. 2006), trans. denied. “A defendant must offer strong and convincing
evidence to overcome the presumption that counsel prepared and executed an
effective defense.” Id.
[16] Gates contends that his trial counsel was ineffective for failing to seek
independent testing to refute the State’s forensic evidence. One of Gates’s trial
counsels filed an affidavit indicating that he did not seek a DNA expert to refute
the State’s evidence because he felt it worked more in Gates’s favor than the
State’s. Under the circumstances of this case, Gates has failed to establish that
this was an unreasonable strategy. The state’s forensic testing on the various
swabs taken from B.D. tended to establish only (1) Gates’s DNA was found on
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her breast (which Gates did not attempt to refute), (2) a sperm head was found
in a smear prepared from an oral swab, and (3) a weak positive for seminal fluid
was found in an outer genital swab. In other words, no genetic material
identified as originating from Gates was found in or around B.D.’s vagina,
anus, or mouth. Under the circumstances, Gates’s trial counsel reasonably
argued in closing that the State’s forensic evidence had failed to establish that a
rape had occurred, much less one committed by Gates. Moreover, as
mentioned, the post-conviction court noted that the State’s forensic evidence
was so weak that it did not even mention it during closing. In light of the fact
that the State’s forensic evidence, standing alone, fell far short of proving that
Gates had sexually assaulted B.D., we cannot say that his trial counsel was
ineffective for failing to hire an expert to refute it. Gates has failed to establish
that he received ineffective assistance of trial counsel.
[17] The judgment of the post-conviction court is affirmed.
May, J., and Crone, J., concur.
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