Dennis Ray Smith v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 28 2018, 11:18 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
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Katherine Province Angela N. Sanchez
Deputy Public Defender Supervising Deputy Attorney
Indianapolis, Indiana General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dennis Ray Smith, February 28, 2018
Appellant-Petitioner, Court of Appeals Case No.
82A05-1709-PC-2123
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Respondent. Judge
The Honorable Kelli E. Fink,
Magistrate
Trial Court Cause No.
82C01-1308-PC-23
Najam, Judge.
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Statement of the Case
[1] Dennis Ray Smith appeals from the post-conviction court’s denial of his
petition for post-conviction relief. Smith raises a single issue for our review,
namely, whether he was denied the effective assistance of trial counsel. We
affirm.
Facts and Procedural History
[2] The facts underlying Smith’s convictions were stated by this court on direct
appeal:
Smith was married to Gina, M.A.’s mother, for fourteen years.
When M.A. was four or five years old, Smith sexually molested
her on two occasions after Gina had left the house. M.A. did not
have complete recollection of the second occasion but stated that
she could “remember the pain . . . [i]n [her] vagina.” Tr. p. 41.
M.A. did not tell anyone about the molestation for several years
because she was afraid of Smith.
On March 22, 2011, M.A. told Kelly Schwent, her mother’s best
friend, and Kelly’s husband, Dan, about the molestations. Kelly
took M.A. back to her home to inform Gina of the molestations.
At the age of seventeen, M.A. had finally decided to reveal the
fact that Smith had sexually molested her because she believed
that she could handle the situation. Moreover, Smith and Gina
had recently separated, and Smith was no longer staying in the
family residence.
After Gina was informed that her daughter had been sexually
molested by Smith, Gina, Kelly, and M.A., drove to Berry
Plastics in Evansville, where Smith was employed, and
confronted him in the parking lot. Smith denied the allegations
while asking what he could do to make this go away. At some
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point, Gina hit Smith. Gina looked at Smith and gave him an
ultimatum: Smith could either confront Gina’s father or follow
the three women to the police station. Smith chose the latter.
After contacting the police, M.A., Gina, and Kelly went to
Holly’s House, where they were interviewed by Detective
Nathan Schroer of the Evansville Police Department. Later that
night, and into the next morning, Detective Schroer advised
Smith of his Miranda[] rights, and Smith signed a waiver of those
rights that was dated March 23, 2011.
Detective Schroer conducted a recorded interview with Smith.
Relevant portions of that interview follow:
Q . . . I’m going to bury you underneath this case
because I have no choice, I mean if you put yourself
in my shoes, you would have to, you know, because
you would leave here thinking, that guy doesn’t care,
why shouldn’t I, or we talk it out and we go from
there.
A Okay, but what happens tonight, I mean what
happens if I say I want a lawyer, do I get one in here
now then we talk about it?
Q No, we wouldn’t get one in here now, I mean they
don’t come out at this time of the night, I’ll tell you
exactly what happens, if you were to go down that
route they would go, and you’ve got to remember,
here’s what I’m telling you, if you went away for the
rest of your life, he would say, oh don’t talk to them,
don’t talk to them, that’s what he would say, I’m
being honest with you, you know, and I’d say that
that’s absolutely fine, I’ve sent a lot of people away
for a lot of time because I was able to show a jury
that they were guilty and then the jury wants to
know, well what did they have to say about it, . . .
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***
A Am I looking at life or something?
Q No, you’re not looking at life, no you’re not
looking at life, you have no criminal history, I don’t,
I don’t see anything like that. . . .
***
Q . . . She said that it didn’t happen more than two
times, did it happen more than two times?
A (inaudible)
Q Okay, how many different locations?
A One.
***
Q . . . are you saying it was your finger that touched
her vagina?
A It was my finger.
Tr. p. 138-39; 146; 149; 165.
On March 28, 2011, the State charged Smith with: Count I, class
A felony child molesting by sexual intercourse and Count II,
class A felony child molesting by sexual intercourse. On June 7,
2011, the State added Count III, class A felony child molesting
by sexual deviate conduct and Count IV, class A felony child
molesting by sexual deviate conduct. On February 8, 2012, the
State added Count V, class A felony child molesting by sexual
deviate conduct.
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On February 22, 2012, Smith filed a motion to suppress “a
portion of the statement of the Defendant taken by audio/video
recording by Detective Nathan Sch[r]oer.” Appellant’s App. p.
29. Smith alleged that his statement was acquired in violation of
his right to counsel under the Fifth Amendment to the United
States Constitution and the Indiana Constitution. A hearing on
the motion to suppress was held on the same date, and the trial
court denied the motion.
Smith’s jury trial commenced the next day, February 23, 2012.
At trial, when the State offered the recorded interview between
Smith and Detective Schroer into evidence as State’s Exhibit D,
Defense Counsel stated that there was no objection, and the trial
court admitted the exhibit. However, immediately after the
exhibit was admitted without objection, Defense Counsel stated
in a bench conference that he was objecting to the exhibit on
grounds that the motion to suppress “should have been granted,
however, the Court denied that Motion.” Tr. p. 106. The trial
court overruled the objection.
The interview was played for the jury. Following deliberations,
the jury returned a verdict of guilty on Counts I-IV and not guilty
on Count V.
The trial court held a sentencing hearing on March 23, 2012,
where it sentenced Smith to thirty years imprisonment on each of
the four counts to be served concurrently, for a total executed
term of thirty years.
Smith v. State, 983 N.E.2d 226, 228-30 (Ind. Ct. App. 2013) (“Smith I”), trans.
denied. On direct appeal, Smith alleged that his statement was inadmissible at
trial because it was “coerced in violation of the Fifth Amendment to the United
States Constitution” and that two of his convictions violated Indiana’s
prohibition against double jeopardy. Id. at 230. We rejected Smith’s Fifth
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Amendment claim, but we reversed two of his convictions, Counts III and IV,
on double jeopardy grounds.
[3] On August 23, 2013, Smith filed a petition for post-conviction relief, and he
filed amended petitions on December 27, 2016, and January 17, 2017. Smith
alleged that he had been denied the effective assistance of trial counsel because
his counsel: did not move to redact portions of his videotaped statement; did
not object to portions of his videotaped statement; and did not object to the
prosecutor’s comments during closing arguments regarding Smith’s post-
Miranda silence. Following an evidentiary hearing, the post-conviction court
denied Smith’s petition. This appeal ensued.
Discussion and Decision
[4] Smith appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review is clear:
The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
(citations omitted). When appealing the denial of post-
conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. To prevail on appeal
from the denial of post-conviction relief, a petitioner must show
that the evidence as a whole leads unerringly and unmistakably
to a conclusion opposite that reached by the post-conviction
court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
Further, the post-conviction court in this case made findings of
fact and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6). Although we do not defer to the post-
conviction court’s legal conclusions, “[a] post-conviction court’s
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findings and judgment will be reversed only upon a showing of
clear error—that which leaves us with a definite and firm
conviction that a mistake has been made.” Ben-Yisrayl v. State,
729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to
Campbell).
[5] Smith contends that he received ineffective assistance from his trial counsel,
Jake Warrum.
When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the defendant must show deficient performance:
representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant
did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Id. at 274.
There is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. Counsel is afforded
considerable discretion in choosing strategy and tactics, and these
decisions are entitled to deferential review. Isolated mistakes,
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poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective.
Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (citations omitted). The two
prongs of the Strickland test are separate and independent inquiries. Williams v.
State, 706 N.E.2d 149, 154 (Ind. 1999). “Thus, ‘[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.’” Id. (quoting Strickland, 466 U.S. at 697, 104 S. Ct.
2052).
[6] Smith alleges that Warrum’s representation was deficient with respect to his
handling of several instances of “post-Miranda silence” during Smith’s
videotaped statement admitted at trial. Appellant’s Br. at 13. In particular,
Smith maintains that his videotaped statement contains ten instances where he
did not respond to questions from Detective Schroer. In his post-conviction
petition, Smith argued that Warrum should have moved to redact those
portions of the interview or should have objected to those portions of the
interview. Smith also argued that Warrum should have objected to the
prosecutor’s references to Smith’s post-Miranda silence during his closing
argument and rebuttal. The prosecutor stated as follows:
You know they say sometimes a picture is worth a thousand
words, and we had a couple [of] pictures, but I’ve also hear[d]
sometimes that silence can be deafening, and I don’t know how
many times I counted during the course of Detective S[c]hroer’s
interview with the defendant when he asked point blank if [M.A.]
were lying when there was nothing more than an awkward
silence and no response at all from the defendant.
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***
You saw the interview, you saw, you are allowed to take into
consideration the way that this person looked [i]n that interview,
and the silences in response, is she lying . . . .
Trial Tr. Vol. III at 222, 240.
[7] Smith’s contentions on appeal rest on the United States Supreme Court’s
opinion in Doyle v. Ohio, 426 U.S. 610 (1976), which prohibits the State’s use of
a defendant’s post-Miranda silence to impeach an exculpatory story told for the
first time at trial. See Barton v. State, 936 N.E.2d 842, 850 (Ind. Ct. App. 2010),
trans. denied. In particular, Smith contends that,
[a]lthough [he] was not in custody when he was interviewed by
Detective Schroer and responded to many of the Detective’s
questions, his silence in response to certain questions is protected
under the Due Process Clause and Doyle because he was advised
of his Miranda rights prior to questioning. The State’s use of
Smith’s silence as evidence of guilt was a violation of due
process.
Appellant’s Br. at 18. Indeed, as stated by the United States Court of Appeals
for the Seventh Circuit,
[i]f a suspect does speak, he has not forever waived his right to be
silent. Miranda allows the suspect to reassert his right to remain
silent at any time during the custodial interrogation. Miranda v.
Arizona, 384 U.S. 436, 445, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d
694 (1966). Thus[,] a suspect may speak to the agents, reassert
his right to remain silent or refuse to answer certain questions, and
still be confident that Doyle will prevent the prosecution from
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using his silence against him. United States v. Canterbury, 985 F.2d
483, 486 (10th Cir. 1993).
United States v. Scott, 47 F.3d 904, 907 (7th Cir. 1995) (emphasis added).
[8] However, the State maintains that Smith “fails to meet his burden to show that
any of the 10 instances to which he points during his interview qualify as
‘silence’ within the meaning of Doyle.” Appellee’s Br. at 14. The State
characterizes those moments of silence as “natural pauses between questions[.]”
Id. Further, the State avers that, “[w]here a defendant does not exercise his
Miranda rights but instead makes a statement to the police, the defendant
cannot thereafter claim a Doyle violation.” Id. at 16.
[9] In support of its contention on this issue, the State cites to our Supreme Court’s
opinions in Trice v. State, 766 N.E.2d 1180 (Ind. 2002), and Sylvester v. State, 698
N.E.2d 1126 (Ind. 1998), but neither of those cases is on all fours with the
instant case. Trice addresses the implications of Doyle in the context of “cross-
examination that merely inquires into prior inconsistent statements [by a
defendant].’” 766 N.E.2d at 1184 (emphasis added). In Sylvester, the Court
stated, “we find no Doyle violation here since [the defendant] did not exercise
his Miranda right. Quite simply, defendant did not remain silent.” 698 N.E.2d
at 1130. That certainly appears to suggest that, once a defendant waives his
right to remain silent, he may not later claim a Doyle violation. But the
circumstances of the alleged “silence” in Sylvester are different than those here.
In particular, the court stated, “[w]here a defendant chooses to fabricate a story,
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he has not remained silent and cannot claim a Doyle violation,” and “that
defendant did not tell the police where his wife’s body was does not mean that
he remained silent in the Doyle sense.” Id. at 1130 n.5, 1131. In other words,
the alleged Doyle violation in Sylvester did not involve the State’s use of the
defendant’s silent refusal to answer questions to impeach him.
[10] Here, in contrast, in its closing argument and rebuttal, the State specifically
referred to Smith’s “silence” in the face of questions regarding whether M.A.
had lied about the molestations. That would seem to squarely implicate
Smith’s protections under Doyle. But we need not decide whether trial
counsel’s failure to object under Doyle fell below an objective standard of
reasonableness because an alleged Doyle violation is subject to a harmless error
analysis. See Johnson v. State, 901 N.E.2d 1168, 1173 (Ind. Ct. App. 2009). In
Bieghler v. State, 481 N.E.2d 78, 92 (Ind. 1985), our Supreme Court set out a
five-part test to determine whether a Doyle violation is harmless: (1) the use to
which the prosecution puts the post-arrest silence; (2) who elected to pursue the
line of questioning; (3) the quantum of other evidence indicative of guilt; (4) the
intensity and frequency of the reference; and (5) the availability to the trial
judge of an opportunity to grant a motion for mistrial or to give curative
instructions. Here, while three of the elements of the Bieghler test would
mitigate against finding harmless error, the other two elements are satisfied and
weigh heavily towards holding the error to be harmless.
[11] In particular, the quantum of evidence of Smith’s guilt is substantial. In
addition to M.A.’s trial testimony that, on two occasions, Smith penetrated her
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vagina with his penis, M.A.’s mother and aunt both testified that, when they
confronted Smith about the allegations, he did not deny them but asked M.A.’s
mother how to “make this go away.” Id. at 73. During his interview with
Detective Schroer, Smith corroborated M.A.’s testimony that Smith had carried
her up the stairs and that he had molested her in a bedroom. And Smith
admitted to Detective Schroer that he had pulled up M.A.’s shirt and fondled
her breasts and that he had pulled down M.A.’s pants and touched her vagina
with his finger. Thus, Smith admitted to facts that supported a Class A felony
under Indiana Code Section 35-42-4-3 (1999). Smith also stated that he was
“sorry for what [he] did to [M.A.]” Trial Tr. Vol. III at 160. Finally, the
prosecutor made only two passing references to Smith’s silence in the face of
questions during the interview, and, thus, neither the intensity nor frequency of
the references is significant.1
[12] We hold that a Doyle violation, if any, was harmless. Accordingly, Smith
cannot show that he was prejudiced by his trial counsel’s alleged deficient
performance, i.e. he cannot show a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. The
1
With respect to Smith’s contention that Warrum should have moved to redact the silences from the
interview or should have objected to the silences, Smith does not direct us to any relevant authority to show
that such a motion would have been granted or that such objections would have been sustained. A Doyle
violation occurs when the State uses a defendant’s post-Miranda silence to impeach a defendant. See Barton,
936 N.E.2d at 850. Here, the mere introduction into evidence of Smith’s complete interview with Detective
Schroer, including Smith’s failure to respond to ten questions, is not equivalent to the State’s use of those
moments of silence to impeach Smith at trial.
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post-conviction court did not err when it concluded that Smith was not denied
the effective assistance of trial counsel.
[13] Affirmed.
Mathias, J., and Barnes, J., concur.
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