Henry Shorter v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 14 2018, 7:30 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Mario Joven J.T. Whitehead
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Henry Shorter, June 14, 2018
Appellant-Petitioner, Court of Appeals Case No.
20A03-1712-PC-2883
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Respondent. Judge
Trial Court Cause No.
20D03-1602-PC-8
Najam, Judge.
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Statement of the Case
[1] Henry Shorter appeals the post-conviction court’s denial of his petition for post-
conviction relief. Shorter raises a single issue for our review, which we restate
as whether the post-conviction court’s judgment that Shorter did not receive
ineffective assistance of trial counsel is clearly erroneous. We affirm.
Facts and Procedural History
[2] The facts underlying Shorter’s convictions for burglary, as a Class A felony;
robbery, as a Class B felony; and for being a habitual offender were stated by
this Court in his direct appeal:
On January 8, 2013, Shorter and his fourteen-year-old stepson,
L.S., went to the home of Ricky Beaver (“Beaver”). Also at the
home was Raymond Cross (“Cross”). Shorter told Beaver and
Cross that he had a “lick” for them, which meant to rob
someone. When Cross asked where the robbery would occur,
Shorter stated that the potential robbery victim was an illicit drug
dealer who had money, drugs, and a safe, but who did not carry
a firearm. Shorter was referring to Willie Warren (“Warren”),
who[m] he referred to as “Woodchuck.” Cross and Beaver
agreed to rob Warren, and Beaver already knew where Warren
lived.
Shorter drove L.S., Beaver, and Cross in a Jeep owned by one of
their acquaintances to the apartment complex where Warren
lived. In the vehicle, the four discussed their plan for the
robbery. Each participant had a ski mask, except for Shorter.
When they arrived at the apartment complex, Shorter parked the
Jeep near Warren’s apartment. Cross, Beaver, and L.S. put on
their masks and got out of the vehicle and went to Warren’s
apartment. Shorter remained in the Jeep.
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Cross knocked on the door of Warren’s apartment, and a woman
opened the door. Beaver then pulled out a handgun, pushed the
door open, and ordered the woman to lie face down on the
couch. Beaver went into Warren’s bedroom, where Warren was
with another woman. Beaver started to rummage around the
room while Cross and L.S. remained near the front door. Beaver
struck Warren in the head with the gun while asking him “where
the stuff was at.” Beaver eventually left the bedroom, telling his
companions that he couldn’t find any of the drugs, money, or the
safe mentioned by Shorter. After a search of the kitchen revealed
nothing, Cross told Beaver that they should leave.
In the meantime, a young boy came running out of a back
bedroom to be with the woman lying on the couch. At some
point, this woman telephoned the police. When Cross told
Beaver again that they should leave, Beaver grabbed a laptop
computer, and the men ran back to the Jeep and fled the scene at
a high rate of speed. Cross asked Shorter and Beaver why there
had been no drugs in the apartment, and Shorter responded,
“they must have just picked stuff up.” Before the four men could
return to Beaver’s house, however, they were stopped by the
police, who had been dispatched to the scene of the robbery and
were looking for the vehicle used by the robbers. The police
arrested Shorter, T.S., Cross, and Beaver, and found in the Jeep
the stolen laptop computer, the ski masks used by the robbers,
and the handgun used by Beaver, which was a BB gun, not a
firearm.
On January 15, 2013, the State charged Shorter with Class B
felony robbery while armed with a deadly weapon. The State
later added a charge of Class A felony burglary. Following a jury
trial held on August 4-6, 2014, the jury found Shorter guilty as
charged. Shorter then admitted to being an habitual offender.
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Shorter v. State, No. 20A05-1409-CR-438, 2015 WL 2170370, at *1-2 (Ind. Ct.
App. May 7, 2015) (citations to the record omitted).
[3] On direct appeal, Shorter argued only that his sixty-year aggregate sentence was
inappropriate in light of the nature of the offenses and his character. We
affirmed his sentence. However, we remanded with instructions for the trial
court to correctly attach the habitual offender enhancement to Shorter’s robbery
conviction.
[4] Thereafter, Shorter filed his amended petition for post-conviction relief. In that
petition, Shorter alleged that his trial counsel, Christopher Crawford, had
rendered ineffective assistance when he had failed to adequately cross-examine
Cross during Shorter’s jury trial. In particular, Shorter alleged that Crawford
had failed to impeach Cross at the jury trial with a pretrial affidavit Cross had
prepared in which Cross had stated that neither he nor Shorter knew of Beaver’s
plan to commit burglary and robbery on the night of the offenses.
[5] Following an evidentiary hearing at which Crawford and Cross both testified,
the post-conviction court rejected Shorter’s argument. In particular, the court
found and concluded as follows:
15. . . . Crawford . . . testified that his particular defense was
lack of mens rea—that [Shorter] had no knowledge of any
criminal plan and was merely the driver of the vehicle.
Specifically, Crawford explained in detail the trial defense
strategy he used: 1) that [Shorter] never entered the apartment in
which the occupants were robbed; 2) that there were serious
issues with the State’s witnesses’ identification of the suspects;
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and 3) that [Shorter] did not knowingly participate in the crime
because he allegedly had no knowledge that a robbery was to
occur in the apartment as [Shorter] was merely the driver of the
vehicle, and [Shorter] stayed in the vehicle the entire time the
robbery occurred.
***
17. [Shorter] also alleges that Crawford was ineffective
because he inadequately cross[-]examined co-defendant
Raymond Cross. At the post[-]conviction hearing, Crawford
testified that he did, in fact, cross[-]examine Raymond Cross by
asking him about his prior criminal record, including
impeachable crimes of dishonesty, about Ricky Beaver’s
involvement in the robbery, and questioning him in such a way
that might lead the jury to conclude that the crime was
committed only by Raymond Cross and Ricky Beaver, not
[Shorter].
18. Additionally, while the Court considered the exhibits
admitted by [Shorter] at the post[-]conviction hearing in support
of [Shorter’s] contention that Crawford omitted relevant defense
documents . . . , in light of the totality of the evidence, the Court
finds this argument is without merit. During cross[-]examination
at the post[-]conviction hearing, Raymond Cross acknowledged
that[,] from the moment he was first interviewed by Elkhart
Police Department detectives, through the jury trial, he had
presented multiple[,] different versions of how the robbery
allegedly happened. Raymond Cross admitted that he was
interviewed by Detective Carl Conway on two separate
occasions, and that his story regarding [Shorter’s] involvement in
the robbery changed between interviews. Raymond Cross
admitted that his statements in the . . . Affidavit contradicted the
sworn statements he had given Detective Conway and his own
jury trial testimony. In sum, the veracity of Raymond Cross’
testimony at the post[-]conviction hearing that [Shorter] was not
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involved in the robbery is clearly diminished by the testimony
that he had given [that described] at least three different versions
of the events. It is not reasonable that the Court would consider
only the story told during the post[-]conviction hearing as true.
19. The Court’s conclusion is bolstered by the fact that the
State introduced a copy of an incident report written by a
corrections officer at the Elkhart County Correctional Facility
demonstrating that[,] on January 13, 2014, Raymond Cross was
found to have committed the institutional infraction of
“trafficking” because he was caught attempting to provide the
subject Affidavit to another inmate in order to get the same
delivered to a notary, when he had already had the opportunity
to have the document notarized. This does not make sense to the
Court and further brings the credibility of the testimony of
Raymond Cross into question.
20. Finally, during the post[-]conviction hearing, attorney
Crawford testified that he was very deliberate in what cross[-
]examination questions he asked Raymond Cross because he was
unsure what his answers would be. Crawford stated that he did
not want to completely discredit Raymond Cross’ jury trial
testimony because some statements were favorable to [Shorter],
but a more thorough cross[-]examination might have “clouded
things more” and may have done more harm than good.
Essentially, Crawford used his professional judgment in choosing
how to handle cross[-]examination of Raymond Cross. For all
these reasons, the Court cannot find that attorney Crawford was
in any way ineffective for choosing not to rely on or utilize
questionable documents in his defense of [Shorter], or in his
cross[-]examination of Raymond Cross at trial.
Appellant’s App. Vol. 2 at 86-89. The court then denied Shorter’s petition for
post-conviction relief, and this appeal ensued.
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Discussion and Decision
[6] Shorter appeals the post-conviction court’s denial of his petition for post-
conviction relief. As our Supreme Court has stated:
“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
“When appealing the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. at 274. In order to prevail on an appeal from the
denial of post-conviction relief, a petitioner must show that the
evidence 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 entered 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 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).
Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).
[7] In particular, Shorter asserts that he was denied the effective assistance of trial
counsel.
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:
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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 682.
[8] Shorter argues that Crawford rendered ineffective assistance when he did not
impeach Cross using Cross’ pretrial affidavit, in which Cross had stated that
neither he nor Shorter knew of Beaver’s plan to commit burglary and robbery
the night of the offenses. According to Shorter, no reasonable counsel would
have refused to impeach Cross using the affidavit because Cross’ trial testimony
that the burglary and robbery were Shorter’s initial ideas was the only evidence
that demonstrated Shorter’s knowledge of the offenses. As such, Shorter
continues, Crawford should have taken all measures to discredit Cross, and
Crawford’s failure to do so resulted in a trial outcome that would not have
occurred otherwise. We cannot agree.
[9] Crawford made a reasonable strategic decision to not use Cross’ affidavit.
“[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 684 (quotation marks omitted). Here, there
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is no question that Cross lacked credibility. As the post-conviction court found,
Cross gave multiple, different versions of the events. Crawford attacked Cross’
credibility during Shorter’s jury trial, albeit through questions relating to Cross’
prior convictions for crimes of dishonesty rather than through the use of the
affidavit. During the post-conviction hearing, Crawford further testified that
Cross’ recollection of the circumstances surrounding the offenses was “all over
the place,” Tr. at 23, that Crawford “didn’t know what Mr. Cross was going to
say” to the jury, id. at 12, and that Crawford was concerned that the use of the
affidavit “would do more harm than good” and could “backfire” on Shorter, id.
at 30, 33.
[10] But Crawford also testified that Cross had some favorable trial testimony for
Shorter. For example, during the trial Cross testified that he had no knowledge
that Beaver had a BB gun on his person “until they’re walking up the steps.” Id.
at 27-28. During that same time, Shorter was in the car, and Crawford argued
to the jury that that testimony supported the defense theory that Shorter would
have had “no knowledge” that the offenses were about to occur. Id. Thus,
Crawford “wanted to use” some of Cross’ statements but also “didn’t want to
use them at the same time because his credibility was certainly an issue.” Id. at
28. In other words, Crawford strategically sought to “walk a line” with Cross
during the cross-examination. Id. at 53-54.
[11] The use of the affidavit would not have been consistent with Crawford’s
strategy, and, indeed, the affidavit could have backfired on that strategy. Had
Crawford attempted to use the affidavit, in which Cross had stated that Shorter
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had no knowledge of the offenses, to further emphasize Cross’ lack of
credibility, the jury could well have concluded that Cross’ statements in the
affidavit were false statements. As Crawford said during the post-conviction
hearing, had the affidavit been before the jurors, “maybe they see this as simply
another situation of Mr. Cross trying to help Mr. Shorter out,” or perhaps the
affidavit “is . . . going to cloud things more and likely [make] them . . . think
something wrong as it relates to Mr. Shorter or his knowledge.” Id. at 32, 34.
Those readily available conclusions would have damaged Shorter’s defense and
rendered Cross’ favorable trial testimony useless.
[12] Further, the evidence produced at the post-conviction hearing demonstrated
that the circumstances surrounding Cross’ creation of the affidavit were highly
suspicious—he had been found in possession of the affidavit while incarcerated,
contrary to the facility’s policies, and when discovered Cross stated that he had
wanted to have the affidavit notarized, though he had already had the
opportunity to notarize it. And Shorter and Cross were incarcerated in the
same facility at the time. While Crawford testified at the post-conviction
hearing that he did not think Shorter had knowledge of Cross’ affidavit during
that time, he acknowledged that the circumstances surrounding the affidavit’s
creation had a “what do you want me to say” appearance, and Crawford “knew
there was no way I wanted to hear that coming back for the jury . . . .” Id. at
35-36.
[13] In sum, Shorter did not receive ineffective assistance from Crawford. Rather,
Crawford used his professional judgment and employed a reasonable defense
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strategy when he chose to not use the affidavit in his cross-examination of
Cross. Accordingly, we affirm the post-conviction court’s denial of Shorter’s
petition for post-conviction relief.
[14] Affirmed.
Robb, J., and Altice, J., concur.
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