Friday, August 17, 2007

Haith sure didn't win many cases?


How did he become qualified to be the CCC attorney? Solid work like this:


FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

AARON E. HAITH STEVE CARTER

Marion County Public Defender Attorney General of Indiana

Indianapolis, Indiana

GRANT H. CARLTON

Deputy Attorney General

Indianapolis, Indiana





IN THE

COURT OF APPEALS OF INDIANA




MAURICE DAVIS, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-0211-CR-561

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )




APPEAL FROM THE MARION SUPERIOR COURT

The Honorable William Young, Judge

Cause No. 49G20-0106-CF-142462





July 11, 2003

OPINION - FOR PUBLICATION

RILEY, Judge


STATEMENT OF THE CASE

Appellant-Defendant, Maurice Davis (Davis), appeals his conviction for possession of cocaine with intent to deliver, a Class A felony, Ind. Code § 35-48-4-1.

We affirm.

ISSUES

Davis raises two issues on appeal, which we restate as follows:

1. Whether the trial court properly admitted Indianapolis Police Department Drug Task Force Sergeant Steven Kinkade’s testimony into evidence; and

2. Whether the State presented sufficient evidence to support his conviction for possession of cocaine with the intent to deliver.

FACTS AND PROCEDURAL HISTORY

On June 28, 2001, Indianapolis Narcotics Detective Steven Gorgiveski (Detective Gorgiveski) and Indianapolis Police Department Officers Ball, Brannon, and Campbell worked a special detail in the area of Broadway and College Avenue in Indianapolis, Indiana due to a high number of complaints for gambling and narcotic sales. Specifically, Detective Gorgiveski and Officer Ball responded to a report of narcotic sales on Broadway near 30th Street.

When Detective Gorgiveski and Officers Ball, Brannon, and Campbell arrived at a house located at 3048 Broadway, they observed a group of six or seven people drinking. After watching the subjects bend or crouch down for a while, the officers also believed that they were gambling. Detective Gorgiveski and Officer Ball approached the group of people, while Officers Campbell and Brannon positioned themselves behind the car. At this time, Davis stood up and the officers heard the dice hit the ground. Davis also dropped two clear plastic baggies, containing a substance suspected to be cocaine, and a bottled water. Additionally, there was an assortment of U.S. currency on the ground near the two plastic baggies of cocaine, bottled water, and dice.

As a result, Detective Gorgiveski arrested Davis. Davis advised Detective Gorgiveski that the contraband did not belong to him and that he was on probation. The evidence, i.e., cocaine, money, and bottled water, was photographed. Eventually, the suspected cocaine was transported to the narcotics vault. After stipulation from both parties, the substance was identified as cocaine, with a total weight of 5.6225 grams.

On June 29, 2001, the State filed an information against Davis charging him with Count I, possession of cocaine with intent to deliver, a Class A felony, I.C. § 35-48-4-1, and Count II, possession of cocaine, a Class C felony, I.C. § 35-48-4-6. On September 5, 2002, Davis waived his right to trial by jury. On September 9, 2002, a bench trial was held. The trial court found Davis guilty as charged and merged Count II into Count I for sentencing. On October 25, 2002, Davis was sentenced to the Indiana Department of Correction for a period of forty years.

Davis now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

    1. Admissibility of Sergeant Kinkade’s Testimony

Davis argues that the trial court erred by admitting Kinkade’s testimony into evidence. Specifically, Davis maintains that Kinkade was not a qualified expert witness under Indiana Evidence Rule 702. Therefore, Davis asserts that the trial court erred by allowing Kinkade to express his opinion as to Davis’ thinking or intent with respect to the cocaine.

The admission of evidence is within the sound discretion of the trial court. Simmons v. State, 760 N.E.2d 1154, 1158 (Ind. Ct. App. 2002). The decision whether to admit evidence will not be reversed absent a showing of manifest abuse of the trial court’s discretion resulting in the denial of a fair trial. Id.; Spires v. State, 670 N.E.2d 1313, 1315 (Ind. Ct. App. 1996). In determining the admissibility of evidence, the reviewing court will only consider the evidence in favor of the trial court’s ruling and unrefuted evidence in the defendant’s favor. Simmons, 760 N.E.2d at 1158.

In the instant case, we find that the trial court properly overruled Davis’ objection to Kinkade’s testimony. Here, Kinkade testified as a “skilled” witness rather than an “expert” witness. A “skilled” witness is defined as “a person with a degree of knowledge short of that sufficient to be declared an expert under Indiana Rule of Evidence 702, but somewhat beyond that possessed by the ordinary jurors.” O’Neal v. State, 716 N.E.2d 82, 88-9 (Ind. Ct. App. 1999).1

Under Ind. Evid. R. 701, a skilled witness may testify to an opinion or inference that is:

  1. rationally based on the witness’s perception, and

  1. helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Haycraft, 760 N.E.2d at 211. The requirement that the opinion be “rationally based” on perception simply means that the opinion must be one that a reasonable person could normally form from the perceived facts. Id.; Hanson v. State, 704 N.E.2d 152, 155 (Ind. Ct. App. 1999). The requirement that the opinion be “helpful” means, in part, that the testimony gives substance to facts, which are difficult to articulate. Id.

Here, the State developed a foundation to establish Kinkade’s qualifications to testify about Davis’ possession of cocaine with intent to deliver. At the time of Davis’ trial, Kinkade had been with the Indianapolis Police Department for sixteen years. During his sixteen years on the force, six and one-half years were spent specifically on investigating narcotics crimes. In fact, Kinkade was the detective in charge of the North District Narcotics Unit. He received special training in narcotics that included schooling for the detection and affects of ecstasy, methamphetamine, cocaine, marijuana, and club drugs. Further, Kinkade was involved in approximately 600–700 narcotics investigations, the majority of which involved cocaine. Moreover, the record shows that the trial court overruled Davis’ objection to Kinkade’s testimony because, “it is relating to the types of investigations he has been in …the training he has received and the years of experience all relay to me the conclusion that he is capable of forming an opinion as to what someone with the quantity package and that weight would intend to do with it….” (Transcript p. 33). Given this background, we find that Kinkade was sufficiently qualified to testify as a skilled witness. See O’Neal, 716 N.E.2d at 88-9; Haycraft, 760 N.E.2d at 211.

Further, Kinkade testified that his opinions and inferences were based on his personal experience as an investigator; thus, his testimony was rationally based on his perception. His testimony was helpful in determining the issue of intent to deliver because Kinkade established the distinct characteristics that differentiate between a drug user and a drug dealer. Specifically, Kinkade testified that drug users generally do not have large amounts of drugs on them. He stated that usually drug users buy $10 to $20 “rocks” of cocaine that weigh approximately .10 grams and immediately smoke it. (Tr. pp. 31, 33, 35). Conversely, the record reflects that Kinkade testified that drug dealers generally carry larger amounts of cocaine on them.

In this case, Davis discarded two plastic baggies of cocaine, each containing an “eight ball” or approximately forty-five rocks of cocaine that were individually wrapped or “bindled.” (Tr. pp. 34). Kinkade concluded from his training and experience that the cocaine was packaged for dealing because it was uncommon for a drug user to carry the amount of cocaine that Davis possessed. The record also indicates that no paraphernalia used to smoke cocaine was found on Davis or near the scene. Clearly, Kinkade’s testimony gave substance to facts that were otherwise difficult to articulate. In particular, Kinkade’s testimony was helpful to determine the intent element of the charge for possession of cocaine with intent to deliver. As such, we find that the trial court did not abuse its discretion in admitting Kinkade’s testimony as a skilled witness. See Simmons, 760 N.E.2d at 1158; Haycraft, 760 N.E.2d at 211.

II. Sufficiency of the Evidence

Davis contends that the State failed to present sufficient evidence to support his conviction. Specifically, he argues that the State failed to establish that he possessed cocaine with the intent to deliver.

Our standard of review for sufficiency claims is well settled. In reviewing sufficiency of the evidence claims, this court does not reweigh the evidence or assess the credibility of witnesses. Cox v. State, 774 N.E.2d 1025, 1028-29 (Ind. Ct. App. 2002). We consider only the evidence most favorable to the judgment, together with all reasonable and logical inferences that can be drawn therefrom. Alspach v. State, 755 N.E.2d 209, 210 (Ind. Ct. App. 2001), trans. denied. The conviction will be affirmed if there is substantial evidence of probative value to support the conclusion of the trier of fact. Cox, 774 N.E.2d at 1028-29. A judgment may be sustained based on circumstantial evidence alone if that circumstantial evidence supports a reasonable inference of guilt. Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).

Indiana Code Section 35-48-4-1(a)(2)(C)(b)(1), in pertinent part, states:

A person who possesses, with intent to deliver cocaine, a narcotic drug, or methamphetamine, pure or adulterated, classified in schedule I or II; commits dealing in cocaine, a narcotic drug, or methamphetamine, a Class A felony if the amount of the drug involved weighs three (3) grams or more.

Therefore, to convict Davis for possession of cocaine with intent to deliver, a Class A felony, the State was required to prove beyond a reasonable doubt that Davis possessed cocaine in an amount greater than three grams with intent to deliver it. See I.C. § 35-48-4-1(a)(2)(C)(b)(1).

In the present case, the record reveals that Detective Gorgiveski and Officers Ball, Brannon and Campbell responded to complaints for gambling and narcotic sales in an area near Broadway and College Avenue. Detective Gorgiveski and Officers Ball, Brannon, and Campbell saw Davis drop two plastic baggies containing cocaine. Thereafter, Davis was arrested for possessing approximately 5.6225 grams of crack cocaine with intent to deliver. “Circumstantial evidence showing possession with intent to deliver may support a conviction. Possessing a large amount of a narcotic substance is circumstantial evidence of intent to deliver. The more narcotics a person possesses, the stronger the inference that he intended to deliver it and not consume it personally.” Love v. State, 741 N.E.2d 789, 792 (Ind. Ct. App. 2001) quoting Berry v. State, 574 N.E.2d 960, 963 (Ind. Ct. App. 1991) (citations omitted), trans. denied.

Here, the evidence on the record shows that Davis intended to deliver the cocaine he possessed. Intent, being a mental state, can only be established by considering the behavior of the relevant actor, the surrounding circumstances, and the reasonable inferences to be drawn from them. See Love, 741 N.E.2d at 792. As stated above, Kinkade’s testimony distinguished the general characteristics of drug users and drug dealers. Specifically, Kinkade testified that drug users generally possess a $10 to $20 rock that weighs approximately .10 grams. However, Kinkade stated that drug dealers typically carry relatively large amounts of cocaine including large numbers of rocks. In the instant case, Davis possessed more than three grams of cocaine. He possessed 5.6225 grams of cocaine. According to Kinkade’s testimony, this amount is consistent with an amount possessed by a dealer, rather than for strictly personal use. Further, the cocaine was individually wrapped in forty-five bindles, creating the inference that the cocaine was packaged for sale rather than for personal use. Evidence of the illegal possession of a relatively large quantity of drugs is sufficient to sustain a conviction for possession with intent to deliver. Hazzard v. State, 642 N.E.2d 1368, 1369 (Ind. 1994). Due to the amount of cocaine that Davis possessed compared to the amount a drug user would typically use, and the fact that the rocks were individually wrapped, we find that the State presented sufficient evidence to sustain Davis’ conviction for possession of cocaine with intent to deliver. See Love, 741 N.E.2d at 792; I.C. § 35-48-4-1(a)(2)(C)(b)(1).

With the above in mind, we reject Davis’ invitation to reweigh the evidence. It is the trier-of-fact’s prerogative to weigh the credibility of the witnesses and to weigh the evidence. Stephenson v. State, 742 N.E.2d 463, 499 (Ind. 2001). Because there is substantial evidence of probative value supporting Davis’ convictions, we will not reverse the conclusion of the trier of fact. See Cox, 774 N.E.2d at 1028-29.

CONCLUSION

Based on the foregoing, we conclude that the trial court committed no error in allowing Kinkade’s testimony as a skilled witness. See Simmons, 760 N.E.2d at 1158. Further, we conclude that Davis was properly convicted of possession of cocaine with intent to deliver as a Class A felony. See Cox, 774 N.E.2d at 1028-29.

Affirmed.

SHARPNACK, J., and BARNES, J., concur.

5 comments:

LEO Supporter said...

It get's worse, has this guy won a single case? I can't seem to locate any, all I am finding are admonishments and failure.

"
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

SUSAN K. CARPENTER JEFFREY A. MODISETT
Public Defender of Indiana Attorney General of Indiana

AMY E. KAROZOS PRISCILLA J. FOSSUM
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana


IN THE
COURT OF APPEALS OF INDIANA

KARL HAYNES, )

)

Appellant-Petitioner, )

)

vs. ) No. 49A02-9704-PC-251

)

STATE OF INDIANA, )

)

Appellee-Respondent. )



APPEAL FROM THE MARION SUPERIOR COURT
The Honorable John R. Barney, Jr., Judge
Cause No. CR83-170C


May 12, 1998

OPINION - FOR PUBLICATION

BAILEY, Judge
Case Summary
Appellant-Defendant Karl Haynes ("Haynes") appeals the post-conviction court's denial of his Petition for Post-conviction Relief challenging his convictions for Murder and Conspiracy to Commit Murder. 1 We affirm.
Issue
Haynes raises four issues on appeal which we consolidate and restate as whether Haynes was denied fundamental due process as a result of the conduct of his trial and appellate counsel.
Facts
The facts, as set forth by our supreme court in Haynes' direct appeal, are as follows:
During the afternoon of August 1, 1983, Co-defendant Carl Isom and two friends roamed around the near northside of Indianapolis trying to sell marijuana. In the vicinity of 25th and Delaware Streets, Isom attempted to sell marijuana to three men on bicycles but an altercation ensued and Isom was beaten and his marijuana was taken by one of the men, Curtis Payton. Isom subsequently contacted [Haynes] who obtained a .25 caliber handgun for him and drove him to where his companions were waiting. [Haynes] was armed with a .32 caliber revolver. [Haynes], Isom and the others thereupon conducted a search for the men who had taken Isom's marijuana and eventually observed Payton near a liquor store. [Haynes] and Isom there confronted Payton and demanded the return of Isom's "reefer." Isom shot Payton and [Haynes] hit Payton in the face as he turned to flee. [Haynes] then joined with Isom in pursuing Payton and both fired their guns at the fleeing Payton. Payton was found dead nearby, having died from two .25 caliber bullet wounds.

Haynes v. State, 479 N.E.2d 572, 573-74 (Ind. 1985).

Isom and Haynes were each subsequently arrested and later prosecuted together in a joint trial. Isom did not testify at trial. However, his extra-judicial statement to police, which suggested that Haynes pointed his gun at the decedent and fired, was admitted through Detective Burgess. Haynes' trial attorney did not object to the admission of Isom's statement.
Procedural History
Attorney William Erbecker represented Haynes at trial. Following a jury trial, Haynes was convicted for Murder and Conspiracy to Commit Murder. Haynes, through his appellate counsel Aaron Haith, then exercised his right to appeal. In so doing, Haynes claimed the evidence presented at trial was insufficient to support his convictions and that his sentence was manifestly unreasonable. Thereafter, our supreme court affirmed Haynes' convictions and sentence. See Haynes v. State, 479 N.E.2d 572 (Ind. 1985). Haynes subsequently filed a Petition for Post-conviction Relief.
In his post-conviction petition, Haynes raised for the first time the errors alleged in the present appeal. After conducting an evidentiary hearing, the post-conviction court denied Haynes' request for relief. The following appeal ensued.
Discussion and Decision
Standard of Review
A person convicted of, or sentenced for, a crime by a court of this state has a constitutional right to appeal that conviction or sentence directly to either this Court or the Indiana Supreme Court. Ind. Const. art. VII, § 6. "After a convicted or sentenced person's

appeal, Indiana law permits such a person to seek 'post-conviction relief' through a special, quasi-civil action in certain circumstances and under certain conditions." Roche v. State, 690 N.E.2d 1115, 1119 (Ind. 1997).
Post-conviction procedures are reserved for subsequent collateral challenges and may not provide a "super appeal" for the convicted. Weatherford v. State, 619 N.E.2d 915, 916 (Ind. 1993). Thus, if an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 525, 526 (Ind. Ct. App. 1995), trans. denied.
The post-conviction petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Weatherford, 619 N.E.2d 917. "To the extent that a person seeking post-conviction relief (usually referred to as the 'petitioner') has been denied post-conviction relief by the post-conviction court, the petitioner appeals from a negative judgment." Roche, 690 N.E.2d at 1119-20. This is Haynes' situation in the present case. When an appeal is from a negative judgment, the petitioner must convince this Court that the evidence as a whole was such that it leads unerringly and unmistakably to a decision opposite that reached by the trial court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995). 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 the decision will be disturbed as being contrary to law. Id. at 1120.
Waiver
In his post-conviction petition for relief, Haynes alleged, for the first time, several errors which he contends entitle him to relief. Haynes' allegations of error included (1) that

the trial court committed fundamental error when it instructed the jury that sudden heat was an element of Voluntary Manslaughter 2 , (2) that he was denied this constitutional right to confrontation when his non-testifying codefendant's extra-judicial statement was admitted at trial and that (3) he was denied effective assistance of trial counsel.
As set forth previously, the purpose of post-conviction relief is not to provide a substitute for direct appeal, but to provide a means for raising issues not known or available to the defendant at the time of the original appeal. Carrington v. State, 678 N.E.2d 1143, 1146 (Ind. Ct. App. 1997), trans. denied. If an issue was available on direct appeal, but not litigated, it is waived. Id.
The record reveals that Haynes failed to object to the trial court's Voluntary Manslaughter instruction. He also failed to object to Detective Burgess' testimony regarding Isom's extra-judicial statement. Further, while Haynes took a direct appeal of the trial court's verdict to the Indiana Supreme Court, he again failed to raise any of the above- mentioned allegations of error, including any claim of ineffective assistance of trial counsel.
In determining that Haynes was not entitled to post-conviction relief, the post- conviction court concluded as follows:
2. [Haynes'] allegations concerning those matters at the trial level of this cause are waived as they were available to him on direct appeal; [Haynes] has

failed furthermore in his burden of showing such issues would have been meritorious.

(PCR. 242). 3 For the foregoing reasons, we find the post-conviction court's conclusions were supported by the evidence and its determination of waiver to be proper under the circumstances.
Fundamental Error/Ineffective Assistance of Counsel
Haynes attempts to avoid application of the waiver doctrine by asserting that it does not apply in the present case. Specifically, Haynes contends that he was denied fundamental due process as a result of the ineffective assistance of his trial counsel in committing these errors and his appellate counsel in failing to raise these errors during his direct appeal.
It is true that we have acknowledged an exception to the waiver rule in circumstances where the trial court committed "fundamental error." However, "we view this exception as an extremely narrow one, available only when the record reveals clearly blatant violations of basic and elementary principles of due process, and the harm or potential for harm cannot be denied." Canaan v. State, 683 N.E.2d 227, 235 n.6 (Ind. 1997), petition for cert. filed. "Fundamental error has been an evolving doctrine with a consistent descriptive theme involving the denial of fundamental due process. . . . For a mistake to constitute fundamental error, it must be so prejudicial to the rights of a defendant as to make a fair trial impossible." Lacey v. State, 670 N.E.2d 1299, 1302 (Ind. Ct. App. 1996) (quotation marks and citations omitted). In reviewing the fundamental fairness doctrine, we have expressed concern that

this doctrine should not become a safe harbor for defendants who fail to raise proper and timely objections at trial. Id.
One of the cornerstones of our litigation process has been the contemporaneous objection rule. With this guidepost in mind, we [have] held that [t]he doctrine of fundamental error exists as the exception to the rule since it permits consideration on appeal of errors to which no objection was made at trial. . . . The mere fact that error occurred and that it was prejudicial will not suffice. That, after all, is the ordinary rule for reversal on appeal when the contemporaneous objection has been made. Rather the error must be one such that the defendant could not possibly have had a fair trial or such that this court is left with the conviction that the verdict or sentence is clearly wrong or of such dubious validity that justice cannot permit it to stand.

Id. (first emphasis added). Additionally, in determining whether fundamental error has occurred, we consider the character of the error and its effect upon the trial as a whole. Id. Further,
While concerns over due process do sometimes merit invocation of a fundamental error exception to the contemporaneous objection rule on direct appeal , we think its availability as an exception to the waiver rule in post-conviction proceedings is generally limited to those circumstances we set forth in Bailey v. State, 472 N.E.2d 1260, 1263 (Ind. 1985): '[D]eprivation of the Sixth Amendment right to effective assistance of counsel, or . . . an issue demonstrably unavailable to the petitioner at the time of his [or her] trial and direct appeal.'

Canaan, 683 N.E.2d at 235 n.6. Haynes has failed to demonstrate that the issues raised in his post-conviction relief petition were unavailable to him at trial or upon direct appeal. Consequently, our analysis focuses solely upon his Sixth Amendment right to effective assistance of appellate counsel.

We analyze the claim of ineffective assistance of appellate counsel according to the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Roche, 690 N.E.2d at 1120.
First, we require the defendant or petitioner to show that, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance. This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Second, we require the defendant or petitioner to show adverse prejudice as a result of the deficient performance. . . .

A petitioner claiming ineffective assistance of appellate counsel or ineffective assistance of trial counsel must show both deficient performance and resulting prejudice. The failure to establish either prong will cause the claim to fail. And where the claim is that appellate counsel was ineffective for failing to claim on direct appeal the ineffective assistance of trial counsel, the petitioner must establish both deficient performance and resulting prejudice on the part of both trial counsel and appellate counsel. Conversely, the failure to establish either prong with respect to either trial or appellate counsel will cause the entire claim to fail.

Roche, 690 N.E.2d at 1120. "However, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Games v. State, 684 N.E.2d 466, 468 (Ind. 1997), modified on reh'g, 690 N.E.2d 211. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be the case, that course should be followed. Id.
Haynes is appealing the denial of his petition for post-conviction relief which complicates the ineffective assistance of counsel analysis. Consequently, Haynes has the additional hurdle of convincing this Court that the evidence, as a whole, leads unerringly and

unmistakably to a decision opposite that reached by the post-conviction court. Moreover, when this court reviews a post-conviction court's negative judgment, we "focus on whether there is evidence supporting the post-conviction court's judgment that the result was fair and reliable, not simply whether there is 'no evidence' supporting the conviction." Games, 690 N.E.2d at 214. In applying this standard of review, we find Haynes' allegation of fundamental error unpersuasive.
The record reveals that while Haynes was represented by different attorneys during his trial and direct appeal, he failed to assert his claim of ineffective assistance of trial counsel until he filed his Petition for Post-conviction Relief. Thus, the post-conviction court properly determined that Haynes waived this issue. Waiver notwithstanding, a careful review of the entire record leaves this Court with the firm conviction that Haynes also failed to sustain his burden of establishing prejudice to his substantial rights as a result of the alleged deficient performances of both his trial and appellate attorneys.
There was undisputed evidence presented at trial that Haynes provided Isom with a .25 caliber handgun and that he also armed himself with a .32 caliber handgun. The evidence further showed that Haynes (1) drove Isom and two other men around the neighborhood to look for the men who stole Isom's "reefer", (2) punched the decedent in the face as he attempted to run away after being shot, (3) chased the decedent, and (4) fired his gun. Additionally, while Haynes denied firing his gun at the decedent, police found a .32 caliber bullet, which could have been fired from Haynes' gun, embedded approximately three feet above the ground in a wall of a house located directly behind where the decedent had been

standing. (R. 372-73, 458-61). 4 Furthermore, as a result of Haynes' direct appeal, our supreme court has already determined that there was sufficient evidence in the present case to support Haynes' convictions under an accomplice theory of liability. 5
We conclude, therefore, that the evidence in this case, when viewed in its entirety, did not lead unerringly and unmistakably to a decision opposite that reached by the post- conviction court. In fact, the totality of the evidence illustrates that there was sufficient, indeed overwhelming, evidence that supported Haynes' convictions in the present case. Thus, assuming without conceding that the alleged errors of Haynes' trial attorney were prejudicial to Haynes, we find that Haynes has failed to prove by a preponderance of the evidence that said errors substantially impaired his opportunity for a fair trial, thereby resulting in a denial of his fundamental right to due process. Based on our holding on this issue, we further conclude that Haynes was not denied effective assistance of counsel when his appellate attorney failed to raise the issues herein complained of, including the claim of ineffective assistance of trial counsel during Haynes' direct appeal. See Isom, 651 N.E.2d 1153 n.5.
Affirmed.
SHARPNACK, C.J., and GARRARD, J., concur.

1 Ind. Code §§ 35-42-1-1 (Murder) and 35-41-5-2 (Conspiracy). 2 Because we find this issue is waived, we need not address it on the merits. However, we note that this precise issue, raised by Haynes' codefendant in his petition for post-conviction relief, was recently addressed and settled by our supreme court in Isom v. State, 651 N.E.2d 1151 (Ind. 1995). There, the Court found that the Voluntary Manslaughter instruction given during Isom's and Haynes' joint trial, while erroneous, did not constitute fundamental error. 3 Citations herein to specific pages in the trial record shall be preceded by the letter "R." Citations to the post-conviction record shall be preceded by the letters "PCR." 4 Contrary to Indiana Appellate Rule 7.2(A)(3)(a), the page numbers in the trial record were not clearly set forth at the bottom of each page. Consequently, our citation to the record here is our best estimation of the correct page of the record. Counsel's lack of attention to detail in this matter created a significant impediment to our review of the record. Thus, Counsel is admonished to make sure that, in the future, each and every page of the record be clearly numbered in accordance with our rules."

Anonymous said...

Aaron Haith is a two bit thug that ran Carson's "project big vote". He registered homeless people to abandoned houses so they could vote. Then they pick them up on election day and give them whatever it takes to make them vote (cash, whiskey, food, cigarettes, etc.)

Notice how Haith is muzzled now at the CCC meetings? His star is fading fast as more and more people get his number.

Don't be one bit surprised if a detective is hired to check more deeply into Haith's affairs.

LEO Supporter said...

I swear on IC's honor that we have searched to the end of the internet looking for one good case from this clown, all we can find are these. Where's he's trying to get drug dealing murderers and cop killers off on technicalities.

Attorney for Appellant

Aaron E. Haith

Indianapolis, IN




Attorneys for Appellee

Karen M. Freeman-Wilson

Attorney General of Indiana

Arthur Thaddeus Perry

Deputy Attorney General

Indianapolis, IN






IN THE

INDIANA SUPREME COURT



JAMEIL COTTON,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).




)

) Supreme Court No.

) 49S00-0005-CR-326

)

)

)

)

)

)






APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Cale J. Bradford, Judge

Cause No. 49G03-9811-CF-177029





ON DIRECT APPEAL



August 20, 2001

SULLIVAN, Justice.

Defendant Jamiel Cotton was convicted of murder for shooting a woman to death after breaking into her apartment. Although the trial court held a pre-trial competency hearing, Defendant requested a new competency hearing following his conviction. Based on the results of the initial hearing and Defendant’s conduct at trial, we find no abuse of the trial court’s discretion in denying the request.
Background
The facts most favorable to the judgment indicate that on October 17, 1998, Defendant Jameil Cotton broke into the apartment of Charese Cook. He shot her seven times in the head, chest, and shoulder, killing her. He was convicted of Murder,1 and Burglary,2 a Class A Felony. He was sentenced to 65 years for the murder, and twenty years for the burglary. The sentences were imposed consecutively.
Discussion


Defendant contends that that the trial court erred when it denied his motion to correct errors in which he challenged the competence finding made by the trial court. Appellant’s Br. at 13.

During the pre-trial proceedings, Defendant was confined at Logansport State Hospital. While at the hospital, he was administered two psychotropic medications, Depakote and Haldol. Upon Defendant’s return to the Marion County Jail, the trial court appointed two experts, Dr. Schuster and Dr. Masbaum, to evaluate Defendant’s competency to stand trial. At the time of his evaluation, the examiners believed that Defendant was still taking medication. In fact, Defendant was not receiving any psychotropic medications because his medical orders had inadvertently been misfiled.

Dr. Schuster’s findings were predicated on the continued use of the drugs. Dr. Schuster concluded the following:

As a result of my examination it is my opinion with reasonable medical certainty that [Defendant] is competent to stand trial in that he understands he is charged with a crime, that he understands the legal procedures thereon and he is able to assist his attorney in his own defense.

(R. at 64.)

Dr. Masbaum’s evaluation was not predicated on Defendant’s use of medication. He concluded, “It is my opinion, based on reasonable medical certainty, that this individual, in spite of his various diagnoses does have comprehension sufficient to understand the nature of the proceedings. He is able to aid his attorney in his defense.…” (R. at 67.)

Defendant’s pre-sentence report showed that Defendant had not received his medication after being transferred to the jail. Defendant thereupon filed a motion to correct errors seeking a new trial. Citing the incorrect information given to Drs. Schuster and Masbaum, he argued that he had not in fact been competent to stand trial.

The trial court denied Defendant’s motion, stating:

The Court considers both the reports; that is, the reports that were filed in connection with this case by Dr. Schuster and Dr. Masbaum. The Court also considers the evidence introduced during the trial of this matter and the Court’s observation of Mr. Cotton throughout the trial of this case. And, it appeared that he was able to confer with counsel. And the Court, in its observations, saw nothing that would indicate to the Court that the defendant was not competent to stand trial.

(R. at 591.)

Defendant now argues that “The trial court should have suspended the sentencing until such time as a determination of [Defendant’s] competence to understand the proceeding and to assist his counsel, without the benefit medication, was made.” Appellant’s Br. at 15.

Indiana Code § 35-36-3-1 provides:

If at any time before the final submission of any criminal case to the court or the jury trying the case, the court has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense, the court shall immediately fix a time for a hearing to determine whether the defendant has that ability.

Whether reasonable grounds exist to order an evaluation of competency is a decision assigned to the sound discretion of the trial court and is reviewed only for an abuse of discretion. See Haviland v. State, 677 N.E.2d 509, 516 (Ind. 1997), reh’g denied. The court’s observations of a defendant in court can be an adequate basis for finding that a competency hearing is not necessary. See Manuel v. State, 535 N.E.2d 1159, 1162 (Ind. 1989); Culpepper v. State, 662 N.E.2d 670, 674 (Ind. Ct. App. 1996), transfer denied.

We find that the court did not abuse its discretion in denying Defendant a competency hearing. Prior to the trial, the trial court found a competency hearing necessary. At the hearing, the parties stipulated to Defendant’s competency, although, Drs. Schuster and Masbaum were not aware that Defendant was not receiving medication. At the time of Defendant’s motion to correct errors, the trial court again considered whether or not to conduct a new competency hearing. This time, however, the trial court concluded that a hearing was not necessary. This decision was based on the pre-trial reports and Defendant’s conduct at trial. We believe that the report and conduct provided the trial court with sufficient information to determine whether further inquiry into Defendant’s competence was necessary.

Defendant cites Smith v. State, in which we ruled that a precursor to Indiana Code § 35-36-3-1 requires that a determination of competency must be made by disinterested psychologists or physicians. 443 N.E.2d 1187, 1190 (Ind. 1983). Smith, however, involved the requisite procedure to determine competence; the procedures are only required under Indiana Code § 35-36-3-1 if “the court has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense.” Here, the trial court, after observing Defendant throughout trial, found there were no grounds to believe that Defendant lacked the ability to understand the proceedings. We see no basis for concluding that the trial court abused its discretion in finding that Defendant was competent.

Conclusion

We affirm the judgment of the trial court.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.


Meh.. another loss for the bad guys..

Frumious said...

See, I'm more visual. I'm looking at the picture you have at the top of this blog. These four gang-bangers standing there with enough firepower to start a revolution - but what is the public worried about? Look at the sign behind them: Positively No Smoking.

So at least they aren't endangering anyone's health by subjecting innocent lives to second hand smoke.

LEO Supporter said...

You will find that I am also very visual, and have subtle inferences in many of the photos that I post, or images and gifs that I create.

Welcome to the site, we are certainly in for a ride.

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