Paul A. Moore v. State of Indiana (mem. dec.)

MEMORANDUM DECISION May 13 2015, 9:57 am
Pursuant to Ind. Appellate Rule 65(D), this
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
Susan D. Rayl Gregory F. Zoeller
Michael R. Smith Attorney General of Indiana
Smith Rayl Law Offices
Indianapolis, Indiana George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul A. Moore, May 13, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1407-PC-475
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T. Rothenberg,
Appellee-Plaintiff. Judge
The Honorable Amy J. Barbar,
Magistrate
Cause No. 49G02-0308-PC-128884
Najam, Judge.
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Statement of the Case
[1] Paul A. Moore appeals the denial of his petition for post-conviction relief,
which challenged his convictions for two counts of murder, two counts of
criminal confinement, as Class B felonies, and one count of arson, as a Class B
felony, for which he received an aggregate sentence of 120 years. Moore
presents the following two consolidated and restated issues for our review:
1. Whether he is entitled to post-conviction relief because he
established that the prosecutor withheld evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963), and
then suborned perjury related to the non-disclosure; and
2. Whether he was denied the effective assistance of trial
counsel for failure to call an exculpatory witness.
[2] We affirm.
Facts and Procedural History
[3] We recited the facts relevant to Moore’s convictions in his direct appeal:
The facts most favorable to the convictions indicate that Moore’s
mother purchased a .45-caliber Ruger handgun in 2001 and kept
it at Moore’s home in the 4300 block of East 39th Street in
Indianapolis. On the afternoon of January 25, 2002,
Indianapolis Police Department Sergeant David Wisneski
responded to a report of a burglary in progress at the home of
Linda Jordan. Sergeant Wisneski heard the yelling of gang
names and saw an unidentified person push Linda aside and
forcibly enter her home. Yonic Jordan then forcibly removed
someone from the home. After the situation calmed down,
Sergeant Wisneski learned that Derrick Dempsey had lost a fight
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with Yonic and had driven to the Jordan residence with Moore
and a third person “to seek revenge.” Tr. at 593. Sergeant
Wisneski asked Dempsey if he could “look inside” his car, which
was parked in the driveway with the engine running. Id. at 579.
Dempsey consented.
In the trunk, Sergeant Wisneski found an assault rifle and a
shotgun. A records check indicated that Moore had reported
these firearms stolen. Under the front passenger seat, Sergeant
Wisneski found a “chrome and black” .45-caliber Ruger
handgun, which had not been reported stolen. Id. at 583. Moore
stated that he owned the handgun and produced a valid handgun
permit. Sergeant Wisneski made no arrests but confiscated the
firearms “because things were in a very, very dangerous state at
that time[.]” Id. at 594. Sergeant Wisneski sent the firearms to
the police property room. On January 28, 2002, as part of his
duties in operating the Integrated Ballistic Identification System
(“IBIS”), firearms technician John Brooks test-fired the
confiscated handgun and entered the relevant ballistics
information into the IBIS computer. In April 2002, Moore’s
mother retrieved the handgun from the property room and gave it
to Moore.
Late one night in June 2003, Moore telephoned Eric Bettis, the
uncle of his friend Curtis Ward, and asked for a ride. Eric
complied, and Moore gave him $30. The next morning, Moore
informed Eric that he had left his gun in the car. Eric’s wife,
Theresa, stopped by Moore’s residence to give him the gun, but
he was not at home. Theresa gave the gun to Eric’s brother,
Herman Bettis, because she did not want to keep it in her car.
Herman informed Moore that he had the “[b]lack and silver” .45-
caliber handgun, and Moore told him to “hang on to it[.]” Id. at
705, 706. Herman kept the handgun in his restaurant.
On the evening of Friday, July 18, 2003, Adrian Beverly was
riding around with Brandie Coleman and Gregory Johnson, who
was dressed as a female and went by the name of Nireah. The
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trio saw Moore and Ward riding in Moore’s car and asked them
to pull into a gas station parking lot. Johnson and Moore exited
their vehicles, talked briefly, and exchanged phone numbers.
Johnson hugged Moore and kissed him on the cheek. Id. at 798.
Moore was attracted to Johnson. Id. at 799. Coleman and Ward
also exchanged phone numbers.
On July 21, 2003, Herman Bettis delivered the handgun to
Moore at his home. At 12:51 a.m. on July 23, 2003, Coleman
called Moore’s home phone to speak with Ward. Coleman and
Johnson then drove to Moore’s home in Coleman’s mother’s
Jeep Grand Cherokee. Coleman, Johnson, Ward, and Moore
chatted briefly outside and entered Moore’s home. Ward and
Coleman went into Ward’s room, and Moore and Johnson went
into Moore’s room.
Later, Moore entered Ward’s room with a “[b]lack and gray”
Ruger .45-caliber handgun and said, “Man, I need to holler at
you.” Id. at 456, 454. The two men went into the kitchen, and
Moore asked Ward whether he knew “if Nireah is a man or a
female.” Id. at 455. Ward told the “[d]isturbed” and “upset”
Moore that Nireah looked like a woman to him. Id. Moore and
Ward went into the living room, where Moore “interrogat[ed]”
Johnson and Coleman regarding whether Johnson was male or
female. Id. at 456. After approximately forty minutes of
questioning, Johnson had to use the restroom. Moore followed
him there and exclaimed in a “stunned, startled” voice, “Man,
this is a boy.” Id. at 457. Moore became “real irate” and talked
about feeling “like his manhood’s been violated[.]” Id. Moore
stated that Johnson “was kissing on him.” Id. at 457. Moore
stated that he should “[w]hip [their] ass” or “possibly kill
them[.]” Id. at 458. Moore asked Johnson, “What did you
think, I was a faggot?” Id.
Moore asked Ward to get some wire, which they used to bind
Coleman’s and Johnson’s hands behind their backs. Johnson
sobbed that he “didn’t mean nothing” and would “never do
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nothing like that again” and “turn straight.” Id. at 459. Moore
put Coleman and Johnson in the backseat of the Jeep and told
Ward to follow him in Ward’s car. Moore drove the Jeep from
East 39th Street to a small park on Fall Creek Parkway North
Drive, where he drove over a curb, around a locked gate, and
into a wooded cul-de-sac. Ward drove past the gate, made a U-
turn, and returned to see Moore walking up the road. Moore
entered Ward’s car, took the handgun out of his pocket,
dismantled it, and threw the pieces out the window. Moore said,
“Man, I had to do it.” Id. at 463. Moore told Ward that he had
to “calm [Coleman] down” after he shot Johnson. Id. at 464.
The pair went back to Moore’s home, returned a roto-rooter to a
rental store, and went their separate ways.
That afternoon, Moore called Ward and stated that “he might
have to go back and burn the truck up.” Id. at 467. Ward later
spoke with Moore’s brother, Clarence McGee, who had seen the
bodies in the Jeep. McGee asked Ward to pick him up at
Moore’s home so that “they could go burn the Jeep up.” Id. at
468. Ward arrived at Moore’s home after dark. Moore told
Ward that the Jeep had to be burned to “cover his tracks.” Id. at
469. McGee asked Ward to get a gas can, and the two men
drove back to the Jeep. Ward let McGee out of the car near the
Jeep, made a U-turn, and retrieved McGee, who smelled of
gasoline and said that he had almost burn[ed] himself. Ward saw
that the Jeep was in flames. Upon their return, Moore described
how Johnson “flopped back in the seat” when he was shot. Id. at
472. Moore told Ward that he was like a brother and that “if
anything goes down that [they] wouldn’t have anything to worry
about.” Id. at 472-73.
Just after 9:00 p.m., firefighters were dispatched to the burning
Jeep and extinguished the flames. Inside, they discovered the
charred bodies of Johnson and Coleman, both of whom had been
fatally shot in the forehead before the fire started. Coleman’s
larynx and chest had suffered blunt force trauma. The .45-caliber
bullets recovered from the victims’ skulls matched the January
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2002 ballistics test of Moore’s handgun. Investigators
determined that gasoline had been poured in the backseat of the
Jeep and ignited. On July 29, 2003, Adrian Beverly identified
Ward as the passenger in the car that she had seen in the gas
station parking lot on July 18 while riding with Coleman and
Johnson. Ward initially denied any involvement in the crimes
but eventually implicated Moore.
On August 5, 2003, the State charged Moore with two counts of
murder, two counts of class B felony criminal confinement, and
one count of class B felony arson. Moore and McGee were tried
together in April 2004. On April 8, 2004, the jury found Moore
guilty as charged. On May 5, 2004, the trial court imposed an
aggregate sentence of 120 years.
Moore v. State, 827 N.E.2d 631, 633-36 (Ind. Ct. App. 2005), trans. denied.
[4] On direct appeal, Moore challenged the admission of ballistics evidence, the
sufficiency of the evidence to support his convictions, and his sentence. Id. at
633. This court determined that the ballistics evidence was derived from an
unconstitutional seizure of the handgun and should have been excluded as fruit
of the poisonous tree. Id. at 639. However, the ballistics evidence was found to
be cumulative of Ward’s and the Bettises’ testimony that Moore possessed the
handgun at the time of the murders. Id. at 640. Accordingly, the error in the
admission of the ballistics evidence was harmless beyond a reasonable doubt.
Id. Additionally, this Court concluded that the State presented sufficient
evidence to support Moore’s convictions and that his sentence was not
inappropriate. Id. at 641, 643. Thus, we affirmed Moore’s convictions and
sentence.
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[5] On October 4, 2006, Moore filed a petition for post-conviction relief, which he
amended on May 3, 2013. Moore’s amended petition for post-conviction relief
asserted the following grounds for relief:
The State committed a Brady violation, in direct contravention of
the Fourteenth Amendment of the United States Constitution
and Article One, Sections Twelve and Thirteen of the Indiana
Constitution, where the State failed to disclose the existence of
an informal agreement/understanding between itself and [a] key
witness.
The State committed prosecutorial misconduct . . . where the
State knowingly allowed the presentation of perjured testimony
of their key witness.
Petitioner received ineffective assistance of trial counsel
. . . where counsel failed to call the only exculpatory witness who
would have corroborated the defense’s theory.
Appellant’s App. at 141-42. On August 21, 2013, and on November 6, 2013,
the post-conviction court conducted evidentiary hearings at which Ward,
Marcel Pratt (Moore’s trial counsel), Ralph Staples (the prosecuting attorney),
and Moore’s grandfather (the omitted defense witness) testified. On June 17,
2014, the post-conviction court entered its findings of fact and conclusions of
law in which it denied Moore’s petition for post-conviction relief. This appeal
ensued.
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Discussion and Decision
Post-Conviction Standard of Review
[6] The petitioner in a post-conviction proceeding bears the burden of establishing
the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); 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. On review, we will not reverse
the judgment of the post-conviction court unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. 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. Id. In this review,
findings of fact are accepted unless they are clearly erroneous and no deference
is accorded to conclusions of law. Id. The post-conviction court is the sole
judge of the weight of the evidence and the credibility of witnesses. Id.
Alleged Exculpatory Evidence—Brady Claim
[7] Moore first contends that he is entitled to a new trial because the State failed to
turn over exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83
(1963). His petition for post-conviction relief alleged that the State failed to
disclose the existence of an informal agreement between the State and Ward,
something he now describes as a “wink and nod” or “unspoken” agreement.
Appellant’s Br. at 8.
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[8] Specifically, Moore claims Ward received a substantial bond reduction in
anticipation of his trial testimony. Also, Ward was never charged with murder
and was permitted to plead guilty to confinement and arson, as Class B felonies,
and received a nine-year sentence (which included three years due to a
probation violation).
[9] The State has an affirmative duty to disclose material evidence favorable to the
defendant. State v. Hollin, 970 N.E.2d 147, 153 (Ind. 2012). “[T]he suppression
by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S.
at 87. Evidence is material “if there is a reasonable likelihood that it might
have affected the outcome of the trial.” Samaniego v. State, 679 N.E.2d 944, 948
(Ind. Ct. App. 1997), trans. denied.
[10] The establishment of a Brady claim requires that the defendant show: “(1) that
the prosecution suppressed evidence, (2) that the evidence was favorable to the
defense, and (3) that the evidence was material to an issue at trial.” Minnick v.
State, 698 N.E.2d 745, 755 (Ind. 1998). The suppression of Brady evidence is
constitutional error warranting a new trial. Bunch v. State, 964 N.E.2d 274, 298
(Ind. Ct. App. 2012), trans. denied.
[11] “Brady applies to evidence impeaching the credibility of State’s witnesses.”
Williams v. State, 714 N.E.2d 644, 649 (Ind. 1999) (citing United States v. Bagley,
473 U.S. 667, 676 (1985)). However, the State will not be found to have
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suppressed material evidence if it was available to the defendant through the
exercise of reasonable diligence. Bunch, 964 N.E.2d at 297.
[12] In Williams v. State, 714 N.E.2d 644 (Ind. 1999), the Court considered a Brady
claim in the context of the State’s non-disclosure of an agreement not to
prosecute a witness in a murder trial for the witness’ alleged drug-related
conduct. The Court concluded: “Because the ‘deal’ became known to
Williams and the jury before the trial concluded, there was no Brady violation.”
Id. at 648.
[13] At Moore’s post-conviction hearing, Ward confirmed that he had not, at the
time of his trial testimony, been given something in return for his testimony. As
for “an understanding,” Ward testified: “[there were] no promises that I could
grab . . . hold to. There was [sic] no specifics at all. None. No specifics, no
details, no nothing.” P-C.R. Tr. at 110-11. He acknowledged that he had never
been charged with murder and that he had been released on bond shortly after
his arrest. Former prosecutor Ralph Staples testified that the State had
cooperated with Ward’s bond reduction as a show of “good faith” during
negotiations with Ward’s attorney. Id. at 23.
[14] Despite his participation in some of the events surrounding the deaths of
Johnson and Coleman, Ward was never charged with murder. And he was
given a substantial bond reduction (from $250,000 to $25,000). Undoubtedly,
Ward hoped that his cooperation would lead to future leniency. However, the
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transcript of Moore’s trial belies his assertion that information regarding a deal
between the State and Ward was withheld.
[15] During opening statements to the jury, Moore’s counsel asserted that Ward’s
credibility was suspect because of an implicit agreement with the State:
[A]fter negotiations with the State of Indiana and striking what
they call a ‘gentleman’s handshake’ which I call ‘you scratch my
back, I’ll scratch your back,’ Curtis Ward starts telling a story
implicating Paul Moore. I’m not going to go into the details of it
because I’m going to tell you the truth, he’s now denied
everything on July 30th, now he comes back on August 6th with
this story. This is after the deal with the State and you’ll hear
about the benefit that he has received and possibly could still
receive for this cooperation.
Tr. at 104. When Ward testified, he acknowledged that he was not in jail but
was “out on bond.” Id. at 493. During cross-examination, defense counsel
elicited Ward’s acknowledgement that his bond had been reduced from
$250,000 to $15,000 (plus an additional amount attributable to a probation
violation). In closing argument, both the prosecution and defense counsel
pointed out to the jury that Ward had been favorably treated by the State.
[16] The prosecutor advised the jury that Ward was facing charges of criminal
confinement, arson, and assisting a criminal, and the prosecutor acknowledged
the bond reduction:
Curtis Ward hadn’t made any deals with the State, let me make
that clear. He may have received a benefit in getting a bond
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reduction that he shouldn’t have gotten, but he has received no
deals for his testimony in this case.
Id. at 972. Thereafter, defense counsel vigorously argued that Ward had
received benefits and still stood to gain from his testimony:
[Ward] is truly [trying] to protect himself. Ms. Haley referred to
how he has received a benefit already about the bond, yes, he
has. I don’t know if you’re curious but reading of the charges
he’s facing, oops, Curtis is not charged with murder. And from
this deal, there’s no writings. It’s a gentleman’s handshake.
After we finish here today, what’s going to happen? Do you
know? I don’t. As far as I know Curtis’ charge’s [sic] dismissed.
Who knows? I don’t. Yes, he has a lot to gain, he is doing a
wonderful job protecting himself.
Id. at 982. The jury was repeatedly advised of the dealings between the State
and Ward. In light of the Indiana Supreme Court’s guidance in Williams, we
likewise conclude that any “deal” was known to Moore and the jury. Moore
has shown no Brady violation.
Alleged Subornation of Perjury
[17] We next turn to Moore’s related allegation that the prosecutor suborned perjury
and, thus, committed misconduct. “A conviction obtained by the knowing use
of perjured testimony is fundamentally unfair, and must be set aside if there is
‘any reasonable likelihood that the false testimony reasonably affected the
judgment of the jury.’” Lyons v. State, 600 N.E.2d 560, 564 (Ind. App. 1992)
(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).
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[18] At the conclusion of Ward’s testimony on re-direct, the following exchange
took place:
Prosecutor: Mr. Ward, have you been promised anything in
exchange for your testimony here today?
Ward: No, I haven’t.
Tr. at 538-39. Moore contends that the prosecutor thereby elicited perjury.
According to Moore, Ward’s answer was false because he had already received
an unusually low bond and had reason to expect favorable treatment in the
future.
[19] At the post-conviction hearing, Ward acknowledged he had denied the
existence of a promise in exchange for his testimony. He added that the
testimony had been “true,” explaining further that there were “no promises that
I could grab . . . hold to.” P-C.R. Tr. at 108, 111. The former prosecutor
corroborated that Ward had no plea agreement when he testified at trial. Thus,
he denied suborning perjury.
[20] To the extent that the allegation of perjury implicates Ward’s subjective belief
that he testified truthfully, credibility determinations rest with the post-
conviction court. To the extent that objective proof could be said to exist, the
bond reduction had already been granted before Ward testified and was thus
not a promise of future consideration. Also, Moore has produced no evidence
of a plea agreement or other defined agreement preceding the testimony.
Moore has not shown that the post-conviction court erred when it concluded
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that Moore had not “carr[ied] his burden” to prove his claim of prosecutorial
misconduct, which was based on the alleged subornation of perjury.
Appellant’s App. at 88.
Effectiveness of Trial Counsel
[21] Moore claims he was denied the effective assistance of trial counsel because
counsel did not call Moore’s grandfather, Charles Moore (“Charles”), as a
witness. Although Charles was listed as a defense witness, ultimately he was
not called to testify. According to Moore, his grandfather was in a unique
position to challenge Ward’s testimony that he was with Moore the morning
after the murders.
[22] Effectiveness of counsel is a mixed question of law and fact. Strickland v.
Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims
of ineffective assistance under the two-part test announced in Strickland. Id. To
prevail on an ineffective assistance of counsel claim, a defendant must
demonstrate both deficient performance and resulting prejudice. Dobbins. v.
State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).
Deficient performance is that which falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 687; see Douglas v. State, 663 N.E.2d
1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that
“there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; see Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996).
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The two prongs of the Strickland test are separate and independent inquiries.
Strickland, 466 U.S. at 697. 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.
[23] We “strongly presume” that counsel provided adequate assistance and
exercised reasonable professional judgment in all significant decisions. McCary
v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded
considerable discretion in the choice of strategy and tactics. Timberlake v. State,
753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the
facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d
1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring
reasonable professional judgment even if the strategy in hindsight did not serve
the defendant’s interests. Id. In sum, trial strategy is not subject to attack
through an ineffective assistance of counsel claim, unless the strategy is so
deficient or unreasonable as to fall outside the objective standard of
reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
[24] At the post-conviction hearing, Charles testified that, around 8:30 a.m. on July
23, 2003, he was called to assist Moore with returning a rented Roto-Rooter.
According to Charles, when he arrived at Moore’s house, Moore was alone and
Ward arrived “a couple minutes” later. P-C.R. Tr. at 68. In Moore’s view, this
testimony—had it been presented at trial—would have contradicted Ward’s
claim “that he was with Mr. Moore continually from the time he claimed Mr.
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Moore killed Coleman and Johnson until after the two of them returned the
Roto-Rooter the next morning.” Appellant’s Br. at 42.
[25] In support of his claim, Moore directs our attention to Ward’s trial testimony
appearing at pages 465 through 466 of the trial transcript. Our review of this
testimony leads us to disagree with Moore’s contention that Ward described
completely uninterrupted companionship with Moore after the murders.
[26] In his trial testimony, Ward described the events leading up to and surrounding
the murders and stated that he and Moore thereafter went “straight home.”1 Tr.
at 465. According to Ward, at that time “it’s light out, early morning.” Id.
The prosecutor then elicited testimony of subsequent activities:
Prosecutor: When you two got back to 4302 East 39th Street
what happened?
Ward: I started heading for the house and he’s going through his
back yard, he asked me did I know where the shovel was and my
reply was, where we left it last night. He still had a piece of the
gun.
Prosecutor: So he asked you about a shovel that morning?
Ward: Right.
Prosecutor: Did you see the Defendant, Paul Moore, do
anything with that shovel?
1
Ward claimed that he had been living at Moore’s house. Moore testified that he lived alone but had given
Ward a key.
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Ward: I went in the house, I didn’t go in the back yard with him.
Prosecutor: Did the two of you do anything else together that
morning?
Ward: Got the Roto-Rooter together, put it in the car and took it
back to wherever it had came [sic] from.
Id. at 465-66. Ward was not asked if he had parted company with Moore for
any period of time that morning. As Ward did not testify that his time with
Moore was uninterrupted, Charles’s testimony that Moore was alone when
Charles first arrived at Moore’s house would have been tangential at best. Even
had the jury credited testimony of Ward’s arrival a “couple minutes” later, such
would not directly contradict Ward’s testimonial account of material events. P-
C.R. Tr. at 68. We discern no prejudice from trial counsel’s decision not to call
Charles as a trial witness.
Conclusion
[27] In sum, Moore has not shown a Brady violation or that the prosecutor suborned
perjury, and Moore has not established that he was denied the effective
assistance of trial counsel. Accordingly, we cannot say that the post-conviction
court’s denial of Moore’s petition for post-conviction relief is clearly erroneous.
We affirm the post-conviction court’s judgment.
[28] Affirmed.
Baker, J., and Friedlander, J., concur.
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