Lorenzo Reid and Larry Blake, a/k/a Larry Reid v. State of Indiana

FOR PUBLICATION
Apr 08 2013, 9:46 am
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
KATHLEEN CLEARY ANGELA N. SANCHEZ
JOHN PINNOW Deputy Attorney General
Deputy Public Defenders Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LORENZO REID and LARRY BLAKE, )
a/k/a LARRY REID, )
)
Appellants-Petitioners, )
)
vs. ) No. 89A01-1208-PC-377
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Gregory Horn, Judge
Cause Nos. 89D02-9112-CF-111, 89D02-9111-CF-88
April 8, 2013
OPINION - FOR PUBLICATION
BRADFORD, Judge
Appellants-Petitioners Lorenzo Reid and Larry Blake seek post-conviction relief from
their convictions and respective fifty-four and forty-four year sentences for murder and Class
C felony attempted robbery. On September 21, 1990, Reid, Blake, and an unidentified third
man were involved in an attempted robbery of a liquor store that resulted in the death of the
owner of the liquor store. Following separate jury trials, both Reid and Blake were convicted
of murder and Class C felony attempted robbery, and their convictions were affirmed on
direct appeal. Reid and Blake subsequently requested post-conviction relief, and the instant
appeal stems from the denial of these requests. Concluding that neither Reid nor Blake are
entitled to post-conviction relief, we affirm the judgment of the post-conviction court.
FACTS AND PROCEDURAL HISTORY
At around 10:30 p.m. on September 21, 1990, Reid, Blake, and an unidentified male
entered a liquor store in Richmond and attempted to rob the owner. Reid v. State, 719 N.E.2d
451, 453 (Ind. Ct. App. 1999). “The owner exchanged gunfire with the three men and was
shot three times during the encounter.” Id. “He later died.” Id.
In 1991, the State charged Reid and Blake (collectively, “Appellants”) with murder,
felony murder, and Class A felony attempted robbery. Appellants were separately tried
before juries in 1993, and each was convicted of murder and Class C felony attempted
robbery. Reid was sentenced to an aggregate term of fifty-four years, and Blake was
sentenced to an aggregate term of forty-four years. In 1994, Blake’s convictions were
affirmed on direct appeal in a memorandum decision. Blake v. State, 89A01-93-10-CR-341
(Ind. Ct. App. Nov. 22, 1994). On November 17, 1999, Reid’s convictions were affirmed on
2
direct appeal. Reid, 719 N.E.2d at 459.
Appellants separately filed pro se petitions for post-conviction relief (“PCR”) in 2000.
They filed a joint motion for post-conviction DNA testing in 2006, as well as a second joint
request in 2007. Both amended their PCR petitions in 2011. The post-conviction court
conducted a joint hearing on Appellants’ petitions on March 6 and 7, 2012. On August 16,
2012, the post-conviction court issued written findings and conclusions in an order denying
Appellants’ PCR petitions. This appeal follows.
DISCUSSION AND DECISION
Post-conviction procedures do not afford the petitioners with a super-appeal. Williams
v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a narrow remedy for
subsequent collateral challenges to convictions, challenges which must be based on grounds
enumerated in the post-conviction rules. Id. “If an issue was known and available, but not
raised on direct appeal, it is waived.” Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001)
(citing Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999)). Petitioners who have been
denied PCR appeal from a negative judgment and, as a result, face a rigorous standard of
review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715
N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.
Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745
(Ind. 2002). Therefore, in order to prevail, petitioners must establish their claims by a
preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745.
When appealing from the denial of a PCR petition, petitioners must convince this court that
3
the evidence, taken as a whole, “leads unmistakably to a conclusion opposite that reached by
the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is
without conflict and leads to but one conclusion, and the post-conviction court has reached
the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v.
State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. The post-conviction court is
the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v.
State, 810 N.E.2d 674, 679 (Ind. 2004). We therefore accept the post-conviction court’s
findings of fact unless they are clearly erroneous but give no deference to its conclusions of
law. Id.
I. Loss or Destruction of Certain Evidence Following Conviction
Appellants contend that the post-conviction court erred in denying their request for
relief because the State violated their rights under the Due Process Clause by its post-
conviction loss or destruction of certain evidence. In making this contention, Appellants rely
on the decisions of the United States Supreme Court in Arizona v. Youngblood, 488 U.S. 51
(1988), and California v. Trombetta, 467 U.S. 479 (1984). Youngblood and Trombetta stand
for the proposition that a defendant’s due process rights are violated by the State’s failure to
preserve, or the destruction of, evidence prior to trial if the materially exculpatory value of
the evidence was apparent before the destruction or the evidence was potentially exculpatory
and was destroyed in bad faith. Youngblood, 488 U.S. at 57-59; Trombetta, 467 U.S. at 488-
89. However, the United States Supreme Court’s subsequent decision in District Attorney’s
Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009), indicates that an
4
individual does not have a right under the Due Process Clause to access lost or destroyed
evidence during post-conviction proceedings.
In Osborne, the defendant was convicted of kidnapping, assault, and sexual assault
and his convictions were affirmed on direct appeal. 557 U.S. at 58. The defendant
subsequently sought PCR. In his request for relief, the defendant requested certain post-
conviction DNA testing. Id. at 59. Eventually, the Supreme Court granted certiorari to
decide whether a defendant has a right under the Due Process Clause to obtain post-
conviction access to the State’s evidence for additional testing. Id. at 61. The Supreme
Court determined that the defendant did not have a right to obtain post-conviction access to
the State’s trial evidence for additional testing, holding that the Due Process Clause does not
require that certain recognized pre-trial rights be extended to protect a defendant’s post-
conviction liberty interests. Id. at 72-74. In making this holding, the Supreme Court
recognized that a criminal defendant proved guilty after a fair trial does not have the same
liberty interests as a free man and that a holding to the contrary would lead to a plethora of
questions relating to whether there is a constitutional obligation to preserve certain evidence
following trial for potential future testing, and, if so, for how long. Id. at 68, 74.
Here, Appellants argue that their due process rights were violated as a result of the
post-conviction loss or destruction of certain DNA evidence. The evidence was available for
testing and was tested prior to trial. Appellants had access to the evidence as well as the test
results prior to trial, and the results of these tests, which excluded Appellants as potential
sources for the DNA, were admitted at trial. In light of the Supreme Court’s opinion in
5
Osborne, we conclude that, like the defendant in Osborne, Appellants do not have a Due
Process right to obtain post-conviction access to the State’s evidence for additional testing.
See id. at 72-74.
Furthermore, even if we were to assume that the State did have some obligation to
save certain evidence, Appellants’ claim still fails. Appellants claim that the destroyed
evidence was materially exculpatory rather than merely potentially useful evidence. We
disagree. It is undisputed that prior tests on the evidence in question indicated that the DNA
did not belong to either of the Appellants. Upon presenting the evidence at trial, the State
conceded that the DNA did not belong to either of the Appellants, but rather argued that it
likely belonged to their unknown accomplice. The triers-of-fact considered the fact that the
DNA excluded Appellants as possible sources, but, in light of the other evidence presented
by the State, found Appellants guilty of murder and attempted robbery.
In seeking PCR, Appellants do not claim that additional testing on the evidence could
be any more exculpatory of their being potential sources of the DNA than the tests completed
prior to trial. Instead, Appellants assert their innocence and claim that their rights under the
Due Process Clause were violated by the loss or destruction of the evidence because they are
unable to use newly developed DNA testing technology to find the individual responsible for
the crimes. However, even assuming that additional testing could result in finding a match of
the DNA evidence obtained at the crime scene, such a discovery would only be potentially
useful as it would likely only identify Appellants’ unknown accomplice and would not, in
and of itself, prove that Appellants had not committed the crimes for which they were
6
convicted. See generally Terry v. State, 857 N.E.2d 396, 408 (Ind. Ct. App. 2006) (providing
that the defendant did not have a right under the Due Process Clause to complete additional
tests on the evidence post-conviction because further tests on the evidence could have
established, at most, that neither defendant nor anyone connected to him owned the evidence,
and, while helpful to support the defense’s theory, would not exculpate the defendant), trans.
denied. In addition, Appellants did not show that the State acted in bad faith in losing or
destroying the evidence in question. Having concluded that the evidence in question was at
most potentially exculpatory and that Appellants failed to demonstrate that the evidence was
lost or destroyed in bad faith, we further conclude that Appellants would not be entitled to
relief under the Supreme Court’s holdings in Youngblood and Trombetta, even if they
controlled. Accordingly, Appellants’ claim relating to the loss or destruction of certain
evidence fails.1
1
Although not relied on by Appellants, we note that Indiana Code section 35-38-7 et seq. grants a
petitioner the opportunity to seek post-conviction testing of DNA evidence. Indiana Code section 35-38-7 et
seq., however, would not provide Appellants the right to conduct the requested DNA testing because they have
not presented prima facie proof of each of the statutory factors set forth in Indiana Code section 35-38-7-8.
Indiana Code section 35-38-7-8 requires the petitioner to present prima facie proof of the following:
(1) That the evidence sought to be tested is material to identifying the petitioner as:
(A) the perpetrator of; or
(B) an accomplice to;
the offense that resulted in the petitioner’s conviction.
(2) That a sample of the evidence that the petitioner seeks to subject to DNA testing and
analysis is in the possession or control of either:
(A) the state or a court; or
(B) another person, and, if this clause applies, that a sufficient chain of custody
for the evidence exists to suggest that the evidence has not been substituted, tampered
with, replaced, contaminated, or degraded in any material aspect.
(3) The evidence sought to be tested:
(A) was not previously tested; or
(B) was tested, but the requested DNA testing and analysis will:
7
II. Brady Claim
Appellants also contend that they are entitled to a new trial because the State failed to
disclose before trial that one of its witnesses, Ronald Maiden, had a prior criminal conviction
for robbery. The State, for its part, argues that Appellants are not entitled to relief because
they have failed to demonstrate that Maiden had a prior robbery conviction. The State claims
that the record merely demonstrates that Maiden was incarcerated after being charged with
robbery, and is silent as to whether Maiden was ever convicted of the charged offense.
Alternatively, the State argues that Appellants were not prejudiced by the State’s alleged
failure to disclose information about Maiden’s prior criminal history.
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963) held that “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 applies to evidence impeaching the credibility of
State’s witnesses. See United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct.
3375, 87 L. Ed. 2d 481 (1985) (citing Giglio v. United States, 405 U.S. 150,
154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972)). The United States Supreme Court
(i) provide results that are reasonably more discriminating and probative of the
identity of the perpetrator or accomplice; or
(ii) have a reasonable probability of contradicting prior test results.
(4) A reasonable probability exists that the petitioner would not have:
(A) been:
(i) prosecuted for; or
(ii) convicted of;
the offense; or
(B) received as severe a sentence for the offense;
if exculpatory results had been obtained through the requested DNA testing and analysis.
Again, the DNA evidence at issue in the instant matter was previously tested and excluded Appellants as
potential sources for the DNA. Further, while Appellants argue that additional testing is necessary to prove the
identity of the perpetrator, such identification would not necessarily be exculpatory to the Appellants, but
rather would likely support the State’s theory that Appellants were aided in committing the underlying crimes
by an unknown accomplice. The fact-finders considered the fact that the Appellants were not possible sources
of the DNA evidence found at the crime scene but, in light of the other evidence presented at trial, found the
Appellants guilty of the charged offenses.
8
has recently summarized three components of a Brady violation: (1) the
evidence at issue must be favorable to the accused, either because it is
exculpatory or because it is impeaching; (2) the evidence must have been
suppressed by the State, either willfully or inadvertently; and (3) prejudice
must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936,
144 L. Ed. 2d 286 (1999).
Carroll v. State, 740 N.E.2d 1225, 1229 (Ind. Ct. App. 2000), trans. denied.
Again, the State argues that Appellants are not entitled to the requested relief because
they have failed to demonstrate that Maiden was ever convicted of robbery. The evidence
before the post-conviction court included the testimony of a police detective who indicated
that he thought that Maiden might have been involved in a burglary or a robbery as a
juvenile, but that he could not be certain. The evidence also included an Indiana State Police
record that indicated that Maiden had been arrested by the Richmond Police Department for
armed robbery on February 6, 1969, and that Maiden was ordered to the State Reformatory at
Pendleton on July 8, 1969, on the charge of armed robbery. Nothing in the record indicates
whether Maiden was ordered to the State Reformatory pending trial or following a criminal
conviction. However, even assuming, without deciding, that the record is sufficient to
establish that Maiden did have a prior robbery conviction, we conclude that Appellants’
Brady claim fails because Appellants have failed to satisfy all three components set forth by
the Supreme Court in Strickler.
As for the first Strickler component, the State does not dispute that the alleged
criminal conviction was an impeachable offense. Robbery was considered an impeachable
conviction at the time of Appellants’ criminal trials. Ashton v. Anderson, 258 Ind. 51, 63,
9
279 N.E.2d 210, 217 (1972). As such, trial counsel for Appellants could have attempted to
impeach Maiden by questioning him about the robbery conviction, and the conviction would
fall within the ambit of Brady and its progeny. See generally Carroll, 740 N.E.2d at 1229
(providing that impeachable convictions fall within the ambit of Brady and its progeny).
As for the second Strickler component, Appellants presented evidence before the post-
conviction court that the State knew, or could have known, about Maiden’s criminal history
but did not disclose the information to their trial counsel. “The availability of information is
not measured in terms of whether the information is easy or difficult to obtain but by whether
the information is in the possession of some arm of the state.” Id. (internal quotations
omitted). Here, because the State could have discovered information relating to Maiden’s
potential criminal history by completing a search of State Police records, we conclude that
Maiden’s record was at the State’s disposal and that the State failed to disclose it. As such,
the second Strickler component has been satisfied. See id.
Having determined that the first two Strickler components have been satisfied, we
must determine “whether the nondisclosure was prejudicial to [Appellants], i.e., whether the
suppressed evidence was material.” Id.
Evidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would
have been different. Bagley, 473 U.S. at 682, 105 S. Ct. 3375. A “reasonable
probability” is a probability sufficient to undermine confidence in the outcome.
Id. In proving materiality, it is not necessary for the defendant to show that
“after discounting the inculpatory evidence in light of the undisclosed
evidence, there would not have been enough left to convict.” Kyles v. Whitley,
514 U.S. 419, 434-35, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Rather, the
defendant must show that the “favorable evidence could reasonably be taken to
put the whole case in such a different light as to undermine confidence in the
10
verdict.” Id. at 435, 115 S. Ct. 1555 (footnote omitted).
Id. at 1229-30.
In Carroll, we considered whether a six-year-old misdemeanor conviction for false
informing or reporting was material. Id. at 1230. Upon review, we concluded that in light of
all of the evidence presented at trial, the impeaching value of the six-year-old misdemeanor
conviction was negligible, at best. Id. In coming to this conclusion, we noted that the
testimony at trial and arguments by counsel did not portray the witness as a highly credible
witness or otherwise upstanding citizen. Id. In addition, the State presented additional
evidence of the defendant’s guilt and the witness in question’s testimony was cumulative of
this additional evidence. Id. In light of the independent evidence of guilt, combined with the
State’s presentation of the witness as a less-than-sterling witness, we concluded that the
State’s nondisclosure of the six-year-old misdemeanor conviction did not satisfy the
prejudice prong of Strickler. Id.
Similarly, in the instant matter, we conclude that in light of all of the evidence
presented at trial, the impeaching value of the alleged robbery conviction is negligible, at
best. The record demonstrates that the victim provided a statement to responding police
officers before he died, in which he stated that he thought that the individuals who shot him
had been in the liquor store approximately an hour before the robbery and shooting and that
they had purchased a bottle of cognac. The victim told Maiden that he had sold a bottle of
cognac, and Maiden testified that after checking the liquor store’s inventory, he was able to
confirm that a bottle of cognac had been sold on the day in question. In addition to the
11
victim’s and Maiden’s testimony, the testimony of two other witnesses placed Appellants at
or near the liquor store at the time of the robbery and shooting, and a broken gold bracelet
that was linked to one of the Appellants was found just outside the liquor store. Maiden’s
testimony corroborated the victim’s statement to police that he had sold a bottle of cognac to
the robbers earlier in the evening before the attempted robbery and shooting, and was merely
cumulative of the other evidence linking Appellants to the crime scene on the day in
question.
Moreover, the alleged conviction at issue in the instant matter was a twenty-four-year-
old robbery conviction that appears to stem back to actions taken by Maiden as a teenager.
Generally, the importance given to the remoteness of or the lapse of time from the witness’s
prior conviction is a question for the trier of fact to determine as to the weight of the
evidence and credibility of the witness. See Robinson v. State, 446 N.E.2d 1287, 1292 (Ind.
1983).2 However, in light of the independent evidence of Appellants’ guilt, we cannot say
that there is a reasonable probability that the outcome of Appellants’ trials would have been
2
Indiana Rule of Evidence 609, which came into effect after the completion of Appellants’ criminal
trials seems to reach the same conclusion with regard to the admissibility and relevance of Maiden’s alleged
criminal conviction. With respect to the admissibility and relevance of a remote criminal conviction, Indiana
Rule of Evidence 609 provides as follows:
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more
than ten years has elapsed since the date of the conviction or, if the conviction resulted in
confinement of the witness then the date of the release of the witness from the confinement
unless the court determines, in the interests of justice, that the probative value of the
conviction supported by specific facts and circumstances substantially outweighs its
prejudicial effect. However, evidence of a conviction more than ten years old as calculated
herein is not admissible unless the proponent gives to the adverse party sufficient advance
written notice of intent to use such evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence.
12
different had counsel for Appellants attempted to impeach Maiden with questions about a
potential criminal act that occurred at least twenty-four years before Appellants committed
the underlying criminal actions. Moreover, nothing in the record indicates that Maiden
committed any other impeachable offense in the twenty-four intervening years, and we find it
unlikely that a jury would find Maiden’s testimony to be incredible merely because he may
have potentially committed a single criminal offense as a teenager.
In sum, the independent evidence combined with the remoteness of Maiden’s potential
criminal conduct leads us to conclude that the State’s nondisclosure of a twenty-four-year-old
potential robbery conviction fails to establish the prejudice prong of Strickler. Accordingly,
Appellants’ Brady claim fails.
III. Ineffective Assistance of Trial Counsel
Appellants also contend that they received ineffective assistance from their trial
counsel. Appellants claim that each of their respective trial counsel was ineffective for
failing to elicit expert testimony during trial regarding the bracelet found at the crime scene
and the DNA evidence. The right to effective counsel is rooted in the Sixth Amendment to
the United States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The
Sixth Amendment recognizes the right to the assistance of counsel because it envisions
counsel’s playing a role that is critical to the ability of the adversarial system to produce just
results.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)). “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper function of the adversarial process that the trial court cannot be relied
13
on as having produced a just result.” Strickland, 466 U.S. at 686.
A successful claim for ineffective assistance of counsel must satisfy two components.
Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first prong, the petitioners must
establish that counsel’s performance was deficient by demonstrating that counsel’s
representation “fell below an objective standard of reasonableness, committing errors so
serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
Id. We recognize that even the finest, most experienced criminal defense attorneys may not
agree on the ideal strategy or most effective way to represent a client and therefore under this
prong, we will assume that counsel performed adequately, and will defer to counsel’s
strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). Isolated
mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily
render representation ineffective. Id. Under the second prong, the petitioners must show that
the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. The petitioners
may show prejudice by demonstrating that there is “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.
The petitioners’ failure to satisfy either prong will cause the ineffective assistance of
counsel claim to fail. See Williams, 706 N.E.2d at 154. Therefore, if we can resolve a claim
of ineffective assistance of counsel based on lack of prejudice, we need not address the
adequacy of counsel’s performance. See Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002).
A. Gold Bracelet
14
Appellants claim that each of their trial counsel was ineffective for failing to call John
Kanable, a manager at a jewelry store, to testify at trial regarding the gold bracelet found at
the crime scene. Under certain circumstances, a failure to call a useful witness can constitute
deficient performance. See Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998). However, both
the Indiana Supreme Court and this court have previously held that “a ‘decision regarding
what witnesses to call is a matter of trial strategy which an appellate court will not second-
guess.’” Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005) (quoting Brown, 691
N.E.2d at 447), trans. denied; see Wisehart v. State, 693 N.E.2d 23, 48 n.26 (Ind. 1998)
(stating that the decision of which witnesses to call is “the epitome of a strategic decision”).
Appellants claim that Kanable’s testimony would have been useful because it could
have rebutted the testimony of the State’s witnesses who testified about the gold bracelet and
whose testimony linked the bracelet to Reid. During both criminal trials, the State presented
the testimony of Kim Seals and Eugene Milliron. Seals, an employee of the J.B. Robinson
jewelry store at the Salem Mall in Dayton, Ohio, testified that Reid had purchased a bracelet
similar to the one found at the crime scene in 1988 or 1989, and that he had subsequently
brought the bracelet in for repair. Seals further testified that the report generated prior to the
repair described the bracelet as fourteen karat gold and that Reid estimated its value to be
approximately $1200. In addition, Milliron, a subcontractor for J.B. Robinson who
completed many of the Salem Mall store’s requested repairs, testified that he recognized the
bracelet found at the crime scene and that he was 90% certain that it was the same one that he
had previously repaired. Milliron testified that goldsmiths typically have their own
15
techniques of doing different types of repairs, and, as a result, there is generally a little bit of
difference between each goldsmith’s work, and that he recognized the repair work on the
bracelet in question as his work.
Appellants claim that they were prejudiced by their respective trial counsel’s failure to
call Kanable as a witness during their criminal trials because Kanable’s testimony was such
that it would have likely affected the outcome of their trials. Again, Appellants claim that
Kanable’s testimony would have been helpful because it could have rebutted Seals’s and
Milliron’s testimony. Specifically, Appellants claim that Kanable would have testified that
subsequent testing conducted in 2005 revealed that although the bracelet was marked as
being made with fourteen karat gold, it actually contained gold of a lesser quality.
Appellants claim that Kanable would have also testified that he estimated the bracelet’s
worth as only $350 to $399 in 1990 and that he would be unable to identify the individual
who completed the repair.
Upon review, we cannot say that Kanable’s proffered testimony is sufficient to
demonstrate a reasonable probability, i.e. a probability sufficient to undermine confidence in
the outcome of the criminal proceedings, that, but for counsels’ alleged error, the result of the
proceedings would have been different. Kanable’s proffered testimony was nothing more
than his opinion as to the quality and value of the bracelet in question and his statement that
he could not identify the individual who completed the repair on the bracelet. Kanable did
not have any specific personal knowledge about the bracelet in question, and, as such, his
testimony stating his general opinions would not likely carry more weight with the fact-
16
finders than the testimony of those who had personal knowledge about the bracelet.
For example, while it might be difficult or even impossible for Kanable to identify
Milliron’s work, we cannot say that Kanable’s testimony to this effect is such that would
discredit Milliron’s testimony that he was able to identify his own work and that he was 90%
certain that he had completed the prior repair work on the bracelet found at the crime scene.
Likewise, while Kanable’s opinion regarding the value of the bracelet was substantially
different than that included in Seals’s testimony, the proffered value of the bracelet stated
during Seals’s testimony represented the value that was provided by Reid when he brought
the bracelet in for repair and did not appear to represent her own evaluation of the bracelet’s
value. We do not find it unusual that the owner of an item would value that item at a higher
worth than an independent expert evaluating the item. In short, Kanable’s proffered
testimony would not seem to discredit either Seals’s or Milliron’s testimony regarding their
history with Reid or their familiarity with the bracelet in question. Rather, Kanable’s
testimony merely provides his personal opinion regarding the bracelet’s quality and value and
his claimed inability to identify the individual who completed the prior repair.
Based on our review of Kanable’s proffered testimony, we conclude that Appellants
have failed to prove that they were prejudiced by their respective trial counsel’s alleged error
because they have failed to demonstrate a reasonable probability that the outcome of their
trials would have been different had their respective trial counsel called Kanable as a witness
during trial. As such, Appellants have failed to prove that they received ineffective
assistance of trial counsel in this regard.
17
B. DNA
Appellants also claim that they received ineffective assistance of trial counsel because
each of their respective trial counsel failed to call a DNA expert at trial to testify about the
DNA evidence found at the crime scene. Again, a small sample of DNA evidence was
recovered from the crime scene. Testing conducted on the DNA evidence prior to trial
excluded both of the Appellants as well as the victim as possible sources of the DNA
evidence. The parties stipulated to these test results at trial, and the test results were admitted
into evidence and were considered by the fact-finders. Appellants have failed to demonstrate
what testimony an expert witness would have been able to provide in addition to the already
stipulated-to fact that neither of the Appellants was a possible source for the DNA. Even
assuming trial counsel would have called an expert witness to testify about this fact, such
testimony would merely be cumulative of the already stipulated-to test results. As such,
Appellants have failed to demonstrate that they were prejudiced by this alleged error of their
respective trial counsel or that they received ineffective assistance of trial counsel in this
regard.
CONCLUSION
In sum, Appellants’ due process rights were not violated by the post-conviction loss or
destruction of certain evidence, Appellants were not entitled to a new trial because the State
failed to disclose before trial that one of its witnesses had a possible prior criminal
conviction, and Appellants did not receive ineffective assistance of trial counsel.
Accordingly, we affirm the post-conviction court’s denial of Appellants’ petitions for relief.
18
The judgment of the post-conviction court is affirmed.
RILEY, J., and BROWN, J., concur.
19