FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
KELLY SCOTT THOMAS GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
FILED
IN THE Mar 19 2012, 8:58 am
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
KELLY SCOTT THOMAS, )
)
Appellant- Petitioner, )
)
vs. ) No. 20A05-1111-PC-651
)
STATE OF INDIANA, )
)
Appellee- Respondent, )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
Cause No. 20C01-0407-MR-95
March 19, 2012
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Kelly Scott Thomas was convicted of felony murder and sentenced to sixty-five
years in prison. After this court affirmed Thomas’s convictions, he filed a petition for
post-conviction relief, but thereafter the post-conviction court granted his motion to
withdraw his petition without prejudice. Thomas filed a second petition for post-
conviction relief. He then filed a motion for an indefinite continuance, which the post-
conviction court denied, and a motion to withdraw his petition, which the post-conviction
court also denied. The post-conviction court denied his petition for post-conviction
relief. Thomas, pro se, raises four issues for our review, which we consolidate and
restate as: (1) whether the post-conviction court abused its discretion in denying
Thomas’s second motion to withdraw his petition; (2) whether the post-conviction court
erred in concluding Thomas received effective assistance of trial and/or appellate
counsel; and (3) whether Thomas’s due process rights were violated by the State’s non-
disclosure of an alleged agreement with one of its witnesses, Stacey Orue.
Concluding the post-conviction court did not abuse its discretion by denying
Thomas’s motion to withdraw his petition, Thomas has failed to meet his burden of
establishing that either his trial or appellate counsel provided ineffective assistance, and
Thomas’s due process rights were not violated because the evidence does not confirm a
leniency agreement was made, we affirm the post-conviction court’s denial of Thomas’s
motion to withdraw his petition and its denial of his petition for post-conviction relief.
Facts and Procedural History
In 2003, Gwendolyn Hunt was shot and killed in her home, and the State charged
Thomas, Orue, and Kevin Taylor with felony murder. The three defendants were initially
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tried together, and a jury found all three guilty of felony murder. The trial court
sentenced Thomas to sixty-five years in prison. Thomas appealed his conviction, and we
reversed due to an instructional error and remanded to the trial court for a new trial. Brief
of Appellee at 2 (citing Thomas v. State, No. 20A03-0503-CR-138 (Ind. Ct. App., Feb. 3,
2006)). After a retrial of Thomas alone in 2007, the jury found Thomas guilty of felony
murder again, and the trial court sentenced him to sixty-five years in prison. We affirmed
Thomas’s conviction. Thomas v. State, No. 20A05-0709-CR-546, 887 N.E.2d 1031 at *3
(Ind. Ct. App., May 30, 2008), trans. denied.
In 2008, Thomas filed a petition for post-conviction relief. In April 2009, the
post-conviction court granted Thomas’s motion for a continuance, and in October 2009,
the post-conviction court granted Thomas’s motion to withdraw his post-conviction
petition without prejudice. In June 2010, Thomas filed a second petition for post-
conviction relief. In February 2011, Thomas filed a motion for an indefinite continuance.
Following a hearing, the post-conviction court denied Thomas’s motion and reset the
post-conviction hearing for October 2011. Thomas’s public defender withdrew in May
2011, and in June 2011, Thomas filed a motion to withdraw his post-conviction petition
without prejudice. The State filed an objection to Thomas’s motion to withdraw. At a
hearing on October 13, 2011, the post-conviction court denied Thomas’s motion and
conducted the post-conviction hearing. The post-conviction court subsequently issued
findings of fact and conclusions of law denying Thomas’s petition, including in pertinent
part:
19. In his Petition for Post Conviction Relief, Petitioner alleged ineffective
assistance of trial counsel for failure to impeach State’s witness, Stacy [sic]
Orue; and, ineffective assistance of appellate counsel for failure to raise
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sufficiency of the evidence as an issue on direct appeal. Further review of
the current Petition filed on June 29, 2010, reveals that said Petition is a
duplicate copy of the Petition filed on December 18, 2008, which
Petitioner, by counsel, moved to withdraw on October 13, 2009. No new
meritorious grounds for relief were stated. Nonetheless, the court will
address Petitioner’s claims.
***
22. On direct appeal, Petitioner raised the issue of whether he was denied
the right to confrontation with respect to the testimony of Stacy [sic] Orue.
The Indiana Court of Appeals found that the trial court gave Petitioner the
opportunity to depose Ms. Orue and he did not avail himself of that
opportunity. Moreover, Petitioner was able to challenge the credibility of
Orue’s testimony in his cross-examination, and the record establishes that
counsel for Petitioner did so. Additionally, the Court found that while
Orue’s testimony was detrimental to Petitioner’s case, it was merely
cumulative of a “wealth of additional evidence presented by the State.” In
sum, in affirming his conviction, the Court of Appeals held that there was
“plentiful evidence” against Petitioner. . . .
23. As demonstrated above, the issues about which Petitioner complains in
his Petition for Post Conviction Relief have been determined by the
appellate court and are, therefore, unavailable for review in this post
conviction proceeding. Even if raised in the context of an ineffective
assistance of counsel claim, as Petitioner has done in the instant case, it has
been determined that trial counsel did cross examine Ms. Orue.
Accordingly, Petitioner’s ineffective assistance of trial counsel claim fails.
Additionally, appellate counsel cannot be deemed ineffective for failing to
raise a sufficiency of the evidence claim when the appellate court has
already held that the evidence in this case against Petitioner was more than
sufficient. . . . For this reason, Petitioner has not shown a reasonable
probability that the outcome of his appeal would have been different if
appellate counsel had raised any other issue. Accordingly, Petitioner did
not receive ineffective assistance of appellate counsel.
Appellant’s Appendix at 31-33.
Thomas now appeals.
Discussion and Decision
I. Thomas’s Motion to Withdraw His Petition for Post-Conviction Relief
Thomas argues the post-conviction court abused its discretion by denying his
second motion to withdraw his petition for post-conviction relief. Indiana Post-
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Conviction Rule 1(4)(c) gives post-conviction courts the discretion to grant a petitioner’s
motion to withdraw his petition. Specifically, it provides “[a]t any time prior to entry of
judgment the court may grant leave to withdraw the petition.” Thus, we will overturn a
post-conviction court’s grant or denial of a motion to withdraw a petition “only when the
court reached an erroneous conclusion and judgment, one clearly against the logic and
effect of the facts and circumstances before the court or the reasonable, probable and
actual deductions to be drawn therefrom.” Tapia v. State, 753 N.E.2d 581, 585 (Ind.
2001) (quotation and citation omitted).
Thomas argues that in order for a post-conviction court to deny a motion to
withdraw a petition for post-conviction relief, there must be a showing that withdrawal
would substantially prejudice the State, citing Tucker v. State, 786 N.E.2d 710 (Ind.
2003), for support. There, Tucker’s motion to withdraw his petition for post-conviction
relief was denied, and Tucker argued to our supreme court that he had a right to withdraw
his petition without prejudice absent a showing of substantial prejudice to the State. Id.
at 711. In discussing the petitioner’s proposed standard for a post-conviction court’s
review of a motion to withdraw a petition, our supreme court discussed its prior case,
Tapia, noting its statement that “[w]hile prejudice to the non-moving party is one indicia
of an abuse of discretion, it is not a proxy for the post-conviction court’s discretion . . . .”
Id. at 712 (quoting Tapia, 753 N.E.2d at 585-86) (internal quotations omitted). Our
supreme court then went on to discuss the difficulty the Indiana Public Defender’s Office
faced in meeting its then-statutory obligation of representing every incarcerated indigent
post-conviction petitioner, even when, as in that case, the actions of the Public Defender
appeared to be diligent and timely. Id. (citing Ind. Code § 33-1-7-2(a) (repealed 2004)).
5
The court in Tucker concluded that without a showing of an improper purpose for the
motion to withdraw or of substantial prejudice to the State, the post-conviction court
abused its discretion by denying the motion to withdraw. Id. at 713.
In Tapia, our supreme court reviewed a post-conviction court’s denial of a motion
to withdraw a petition for post-conviction relief and concluded the court’s denial was not
an abuse of discretion. 753 N.E.2d at 586. The court noted that Tapia “made little effort
to explain what he would gain by delaying the proceedings” other than his claim that “he
‘recently discovered substantial errors which he verily believes warrant relief.’” Id. Our
supreme court concluded “[t]he post-conviction court could balance what speculative
benefit Tapia would derive from a delay against the costs to the court in wasted time, and
conclude that Tapia was not entitled to withdraw his petition” because “[w]ithout any
valid explanation as to what would be gained from further delay, we cannot say that the
post-conviction court abused its discretion by rejecting Tapia’s motion.” Id.
Here, Thomas had already filed an initial petition for post-conviction relief, and
the post-conviction court granted both a motion to continue and then a motion to
withdraw his petition. The petition at issue here is his second petition for post-conviction
relief, and his stated reason for asking the court to withdraw his petition is that newly
discovered evidence may come to light during Taylor’s retrial.1 Thomas is correct that
the State’s only claim of prejudice if the post-conviction court were to grant Thomas’s
motion to withdraw is that the State would have to use additional time and resources if
Thomas filed a third petition for post-conviction relief after Taylor’s retrial. However, as
1
While it is clear from Thomas’s brief that Taylor’s retrial was scheduled sometime after Thomas’s post-
conviction hearing, nothing in the record substantiates this or indicates when Taylor’s retrial was or is set to occur.
6
our supreme court stated, prejudice to the non-moving party, or lack thereof, is one
indicator, but it is not always determinative of whether the post-conviction court abused
its discretion. We conclude the post-conviction court’s denial of Thomas’s motion to
withdraw his petition was not clearly against the logic and effect of the facts and
circumstances before the court. Any benefit Thomas could derive from the delay was
speculative, and the post-conviction court could properly balance the speculative benefit
against the costs to the court and the State in wasted time. See Tapia, 753 N.E.2d at 586.
Further, Thomas already had ample opportunity to conduct discovery himself. It was not
an abuse of the post-conviction court’s discretion to refuse Thomas’s request to withdraw
his petition based on his hope of an evidentiary windfall from Taylor’s retrial.
II. Ineffective Assistance of Counsel
A. Standard of Review
The standard for gauging appellate counsel’s performance is the same as that for
trial counsel. Allen v. State, 749 N.E.2d 1158, 1166 (Ind. 2001), cert. denied, 535 U.S.
1061(2002). To succeed on a claim of ineffective assistance of counsel, a petitioner must
show by a preponderance of the evidence that (1) his counsel’s representation fell below
an objective standard of reasonableness, and (2) that, but for counsel’s unprofessional
errors, the result would have been different. Stevens v. State, 770 N.E.2d 739, 746 (Ind.
2002). A strong presumption exists that counsel rendered adequate assistance and used
reasonable professional judgment. Id. In determining strategy and tactics, counsel is
afforded considerable discretion, and isolated mistakes, poor strategy, inexperience, or
instances of bad judgment do not necessarily render representation ineffective. Id. at
746-47.
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B. Trial Counsel
Thomas argues he received ineffective assistance of trial counsel in two respects.
First, he claims his counsel failed to adequately impeach one of the State’s witnesses,
Stacey Orue, on cross-examination. Second, he claims his counsel should have objected
to the State’s closing argument when the State allegedly vouched for its witnesses. As to
his attorney’s impeachment of Orue, Thomas points to the fact that his counsel did not
impeach Orue regarding a sworn petition for post-conviction relief wherein she stated she
took no part in the crime even though, at Thomas’s trial, she testified she was present in
Hunt’s apartment when Thomas robbed and shot Hunt.
However, as the State points out, Thomas’s counsel did impeach Orue in several
ways, including inconsistent statements regarding her presence at the scene of the crime.
First, counsel extracted information from Orue about her prior cocaine and prostitution
habits, as well as her prior convictions, including felony murder for the robbery and death
of Hunt. Second, Orue admitted that she lied to police when they initially interviewed
her after the incident. Last, and most importantly, counsel succeeded in getting Orue to
admit that she had repeatedly stated she was not present in Hunt’s residence when the
crime occurred. We cannot say Thomas’s trial counsel performed in an unreasonable
manner. The point Thomas argues should have been elicited at trial – that Orue’s
testimony about what happened at Hunt’s residence was untrustworthy because she
previously claimed she was not even present in the apartment – was in fact elicited. The
manner in which it was brought forth is a matter of strategy and even if a better strategy
could have been chosen, this does not amount to ineffective assistance of counsel.
Further, even if this was an unreasonable performance by Thomas’s counsel, it is unlikely
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the result of Thomas’s trial would have been any different if Orue had been impeached
concerning her sworn petition because the jury was already presented with evidence of
Orue’s contradictory statements.
Thomas next argues his trial counsel should have objected during the State’s
closing argument because he contends the State improperly vouched for its witnesses.
Thomas is correct that a prosecutor may not state his or her personal opinion regarding
the credibility of a witness during trial. See Schlomer v. State, 580 N.E.2d 950, 957 (Ind.
1991) (“[i]t is improper for the prosecutor to make an argument which takes the form of
personally vouching for the witness”); see also Gaby v. State, 949 N.E.2d 870, 880-81
(Ind. Ct. App. 2011) (concluding prosecutor’s statements that “I cannot and would not
bring charges that I believe were false” and “I can tell you that with a guilty verdict on
this case I will be able to sleep fine tonight. Just fine. In fact, better than fine. You will
be able to also” were improper vouching). However, a prosecutor may comment as to
witness credibility if the assertions are based on reasons arising from the evidence
presented in the trial. Gaby, 949 N.E.2d at 881.
Here, Thomas points to page 542 of the Transcript in arguing that the State
improperly vouched for its witnesses. Thomas does not provide us with any further detail
about which statements he claims amount to vouching,2 but to address the merits of his
claim we will assume he is referencing the State’s discussion of the importance of
witness credibility, and, specifically, the statement that “I’d like to discuss with you why
2
Parties to an appeal are required to present “cogent argument supported with adequate citation to authority
because it promotes impartiality in the appellate tribunal. A court which must search the record and make up its
own arguments because a party has not adequately presented them runs the risk of becoming an advocate rather than
an adjudicator. A brief should not only present issues to be decided on appeal, but it should be of material assistance
to the court in deciding those issues. On review, we will not search the record to find a basis for a party’s argument
nor will we search the authorities cited by a party in order to find legal support for its position.” Young v. Butts,
685 N.E.2d 147, 151 (Ind. Ct. App. 1997) (citations omitted).
9
we believe on behalf of the state that these witnesses are credible.” Tr. at 542. After
making this statement, the State described common reasons witnesses lack credibility,
such as personal interests, bias, and prejudice. The prosecutor then discussed each
witness or group of witnesses and the circumstances of each that were presented to the
jury. The prosecutor pointed out that neighbors who testified were innocent bystanders
who just happened to live above Hunt, that the testifying police officers’ interests were in
seeing the crime get solved correctly, and that, even though defense counsel cross-
examined each witness and attempted to reveal issues of credibility, no such issues arose.
The State also informed the jury that credibility can be blurred for physical reasons, such
as a witness being on drugs at the time of an incident, or for nervous or otherwise
untrustworthy behavior while testifying, and that those issues were not presented with the
State’s witnesses. We conclude the prosecutor’s statements did not amount to improper
vouching, but rather, were comments regarding witness credibility based on the evidence
presented at Thomas’s trial.
C. Appellate Counsel
Thomas argues he received ineffective assistance of appellate counsel in that his
counsel did not raise a claim that the evidence was insufficient to convict Thomas of
felony murder. He argues the outcome of his appeal would have been different had his
counsel raised an insufficiency claim because the State failed to present sufficient
evidence that Thomas’s conduct killed Hunt. More specifically, he contends Indiana
Code section 1-1-4-3 (1986) defines death as (1) irreversible cessation of circulatory and
respiratory functions; or (2) irreversible cessation of all functions of the entire brain,
10
including brain stem, and that no evidence was presented establishing that Hunt was dead
as defined by this statute at the time she was removed from life support.
When reviewing a claim of insufficient evidence, this court considers only the
probative evidence supporting the verdict and the reasonable inferences drawn therefrom.
Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We do not
reweigh the evidence or assess witness credibility, and we consider conflicting evidence
most favorably to the trial court’s ruling. Id. We will affirm a conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a reasonable
doubt. Id. The evidence is sufficient if an inference may reasonably be drawn from it to
support the verdict, and it is not necessary that the evidence overcome every reasonable
hypothesis of innocence. Id.
The cause of death is not an element of the offense of felony murder. See Ind.
Code § 35-42-1-1 (“A person who: . . . (2) kills another human being while committing
or attempting to commit . . . robbery . . . commits murder, a felony.”); Wilson v. State,
432 N.E.2d 30, 33 (Ind. 1982) (“The cause of death is not an element of the offense [of
murder] itself; the element in question is the killing, absent a suggestion of intervening
cause.”); Williams v. State, 782 N.E.2d 1039, 1047 (Ind. Ct. App. 2003) (“The cause of
death is not an element of the offense of murder itself, but becomes a relevant matter
when an intervening cause of death is suggested.”), trans. denied. Thus, what Thomas is
really arguing is that Hunt’s removal from life support was an intervening cause of death.
“An intervening cause is an independent force that breaks the causal connection between
the actions of the defendant and the injury. . . . In order for an intervening cause to break
the chain of criminal responsibility, it must be so extraordinary that it would be unfair to
11
hold the defendant responsible for the actual result.” Spencer v. State, 660 N.E.2d 359,
362 (Ind. Ct. App. 1996).
Here, Orue testified that she drove with Thomas and Taylor to Gwendolyn Hunt’s
apartment. Orue knocked on the door, and Hunt began to open it. When Hunt saw that
Orue was not alone, Hunt attempted to close the door, but Thomas forced the door open
and entered the apartment. Orue stated that after going into the apartment for two to
three minutes, Thomas returned to the entryway and shot Hunt in the head. Hunt did not
die immediately, but died later at the hospital after being taken off life support. Dr.
Joseph Prahlow, a forensic pathologist, testified regarding Hunt’s cause of death. Dr.
Prahlow testified that the bullet fired at Hunt went through her skull and brain. Dr.
Prahlow stated:
After going through the left occipital lobe, [the bullet] went through the
deep central structures of the brain where the brain stem and spinal cord
attach to the rest of the brain. Some very, very important structures in the
deep part of the brain. . . . The fact that the deep structures in the brain
were injured, however, makes . . . this gunshot immediately incapacitating
at the very least. . . . The cause of death for Ms. Hunt was . . . a gunshot
wound of the head.
Transcript at 422-24.
Based on our standard of review of sufficiency of the evidence claims, the
outcome of Thomas’s appeal would not have changed had his appellate counsel raised
sufficiency of the evidence as an issue in his first appeal. The evidence most favorable to
the trial court’s verdict is that the gunshot wound was the cause of Hunt’s death. The
removal of life support is not an independent force so extraordinary as to break the causal
connection between the gunshot and Hunt’s death.
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III. Due Process
Thomas next argues his due process rights were violated because the State failed
to disclose the existence of an agreement with Orue in exchange for her testimony
condemning Thomas. As evidence of the alleged agreement, Thomas points to Orue’s
sentence, issued after Thomas’s retrial, of forty-five years in prison, the lowest possible
sentence for a conviction of felony murder. See Ind. Code § 35-50-2-3(a). “A prosecutor
must disclose to the jury any agreement made with a witness and any promises, grants of
immunity, or rewards offered in return for testimony.” Rubalcada v. State, 731 N.E.2d
1015, 1024 (Ind. 2000) (citations omitted). “The prosecutor’s duty of disclosure arises
when there is a confirmed promise of leniency in exchange for his testimony” and a
“witnesses’s expectations, coupled with evidence of a deal after the in-court testimony of
the witness, are insufficient to require that a disclosure be made.” Id. (citations omitted).
Here, when Orue testified, her immunity agreement with the State was disclosed to
the jury. When asked if she had any reason to think she would receive anything other
than immunity in exchange for testifying, she replied that she did not. The only evidence
asserted by Thomas in support of his contention that an agreement was established is that
Orue’s sentence was the statutory minimum. Nonetheless, her sentence was within the
range allowed by statute. Thus, without any other evidence supporting Thomas’s claim,
there was no confirmed promise of an agreement and the State’s lack of disclosure of the
alleged agreement did not violate Thomas’s due process rights.
Conclusion
The post-conviction court did not abuse its discretion in denying Thomas’s motion
to withdraw his petition for post-conviction relief. Thomas has failed to establish that he
13
received ineffective assistance of trial or appellate counsel, and his due process rights
were not violated at trial by the State’s nondisclosure of an alleged leniency agreement
with one of its witnesses. We therefore affirm the post-conviction court’s denial of his
motion to withdraw his petition and its denial of his petition for post-conviction relief.
Affirmed.
NAJAM, J., and VAIDIK, J., concur.
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