Feb 08 2016, 8:34 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Russell W. Brown, Jr. Gregory F. Zoeller
Office of Lake County Public Defender Attorney General of Indiana
Crown Point, Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Hervin S. Talley, February 8, 2016
Appellant-Petitioner, Court of Appeals Case No.
45A05-1507-PC-1005
v. Appeal from Lake Superior Court.
The Honorable Salvador Vasquez,
Judge.
State of Indiana, Cause Nos. 45G01-1208-FB-77,
Appellee-Respondent. 45G01-1310-PC-18
Darden, Senior Judge
Statement of the Case
[1] Hervin S. Talley was convicted of possession of a firearm by a serious violent
felon and two counts of resisting law enforcement. He appealed his convictions
but later received permission to terminate his appeal and seek post-conviction
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relief. Talley now appeals the denial of his petition for post-conviction relief.
We affirm.
Issue
[2] Talley raises one issue, which we restate as: whether the post-conviction court
erred by rejecting his claim of ineffective assistance of trial counsel.
Facts and Procedural History
[3] On the evening of August 5, 2012, Officer Alejandro Campos of the East
Chicago Police Department was on routine patrol in East Chicago, Indiana.
He was dispatched to investigate a report of a burglary. The dispatcher directed
Officer Campos to look for a suspect who was described as a black male with
dreadlocks wearing a white shirt and dark blue jeans.
[4] As Officer Campos drove to the location of the burglary, he saw a person, later
identified as Talley, walking on a sidewalk. Talley matched the reported
description of the suspect. Officer Campos parked his car, which was fully
marked and had its emergency lights activated. Next, Campos, who was in
uniform, got out of his car, identified himself as a police officer, and told Talley
to stop. Talley turned around, looked at Officer Campos for a moment, and ran
away. Officer Campos chased him on foot.
[5] Talley ran to a house that was later identified as his mother’s house, opened a
gate, and entered the front yard. He shouted for his mother. At that point,
Officer Campos caught up to Talley and grabbed him by the shoulder. As they
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struggled, Talley pulled a handgun out of his pants. Officer Campos grabbed
Talley’s wrist and forced him to drop the handgun. It was later discovered that
the gun, which was a .40 caliber Taurus semiautomatic, had a round in the
chamber and the safety was off.
[6] Officer Campos handcuffed Talley, secured the handgun, and called for backup.
When another officer arrived, Officer Campos put Talley in his patrol car. At
that point, Talley blurted out to Officer Campos, “Let me go. I’m a convicted
felon.” Trial Tr. p. 85. As Talley sat in the car, Officer Campos took a picture
of him with a cell phone. Later, Officer Campos showed the picture to the
burglary victim, and she said Talley was not the burglar.
[7] Subsequently, the State charged Talley with unlawful possession of a firearm by
a serious violent felon (SVF), a Class B felony, resisting law enforcement as a
Class D felony, and resisting law enforcement as a Class A misdemeanor. The
State alleged that Talley was a SVF because he had been convicted of armed
robbery in Illinois in 2001.
[8] The case was tried to a jury. On the first day of trial, Talley, by counsel, filed a
motion to exclude evidence of his 2001 Illinois conviction for armed robbery.
He asserted in the motion that the conviction was: (1) inappropriate evidence
of other crimes, wrongs or acts in violation of Indiana Evidence Rule 404; (2)
unduly prejudicial in violation of Indiana Evidence Rule 403; and (3) irrelevant
because the State would not be able to prove that Talley committed the crime
that led to the 2001 conviction, in violation of Indiana Evidence Rule 104(b).
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In addition, outside the presence of the jury, Talley argued to the court, “The
conviction was in 2001, approximately ten years ago. We believe that is too
remote in time and should not be allowed in this case.” Trial Tr. p. 22. The
trial court denied Talley’s motion, ruling that the serious violent felon statute
“does not give a time limitation.” Id.
[9] During the trial, Talley renewed his objection to admission of evidence of the
2001 predicate felony, claiming that the conviction was too old. The court
overruled the objection. Officer Campos testified that Talley had blurted out
that he was a convicted felon. In addition, the jury heard testimony on three
occasions that Talley had been convicted of armed robbery. Id. at 108, 144-45,
206. The jurors were shown a certified record from the Illinois Department of
Corrections which included a mugshot of Talley and showed that he had been
convicted of armed robbery in 2001. State’s Trial Ex. 9.
[10] Talley’s mother testified during Talley’s case-in-chief and contradicted Officer
Campos’ testimony. She stated that Talley never had the handgun. Instead,
she said the handgun belonged to her, she was holding it when she came
outside and saw Officer Campos arrest Talley in her front yard, and Officer
Campos took it out of her hands and confiscated it. Talley’s sister testified to
the same. On cross-examination during the State’s case-in-chief, Officer
Campos denied that Talley’s mother had held the handgun.
[11] The jurors determined that Talley was guilty as charged. The trial court
sentenced him to an aggregate sentence of ten years.
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[12] Talley filed a Notice of Appeal. He obtained new counsel as his appeal
progressed, and he filed with the Court a verified motion to remand. In support
of his motion, Talley asserted that remand was necessary to develop a factual
record to support a claim of ineffective assistance of trial counsel. The Court
granted the motion and dismissed his appeal, without prejudice, to his right to
appeal after post-conviction proceedings ended.
[13] Next, Talley filed a petition for post-conviction relief. The State filed a
response, and the post-conviction court held an evidentiary hearing. After the
hearing, the court denied Talley’s petition, and he now appeals.
Discussion and Decision
[14] The Court dismissed Talley’s direct appeal under the Davis-Hatton procedure,
pursuant to which an appellate court may, upon an appellant’s motion,
terminate or suspend a direct appeal to allow the appellant to pursue a petition
for post-conviction relief in the trial court. See White v. State, 25 N.E.3d 107,
121 (Ind. Ct. App. 2014), trans. denied, cert. denied, 136 S. Ct. 595 (2015). If the
post-conviction court denies the petition, then the appeal may be reinstated, and
the issues that would have been raised on direct appeal and the issues litigated
in the post-conviction relief proceeding can be raised together. Id. The
procedure is useful where a defendant needs to develop an evidentiary record to
support a claim of ineffective assistance of trial counsel. Peaver v. State, 937
N.E.2d 896, 899 (Ind. Ct. App. 2010), trans. denied. In this appeal, Talley does
not present any claims that he could have raised in his direct appeal, instead
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focusing entirely on the post-conviction court’s rejection of his claim of
ineffective assistance of trial counsel.
[15] Talley is appealing from a negative judgment and bears the burden of proof.
Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). He must convince the Court
that there is no way within the law that the post-conviction court could have
reached the decision it did. Id. We review the court’s factual findings for clear
error but do not defer to its conclusions of law. Id. We will not reweigh the
evidence or judge the credibility of witnesses. Hinesley v. State, 999 N.E.2d 975,
981 (Ind. Ct. App. 2013), trans. denied. Instead, we consider only the probative
evidence and reasonable inferences flowing therefrom that support the post-
conviction court’s decision. Id.
[16] Claims of ineffective assistance of counsel are evaluated using the Strickland
standard articulated by the United States Supreme Court. Wilkes, 984 N.E.2d
at 1240. The standard has two elements. First, a petitioner must demonstrate
that counsel performed deficiently based upon prevailing professional norms.
Id. Counsel is afforded considerable discretion in choosing strategy and tactics,
and we will accord those decisions deference. Timberlake v. State, 753 N.E.2d
591, 603 (Ind. 2001). Counsel’s performance is presumed effective, and a
defendant must offer strong and convincing evidence to overcome this
presumption. Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010). To prevail on
an ineffective assistance of counsel claim based upon counsel’s failure to file a
motion, the petitioner must demonstrate that the motion would have been
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successful. Moore v. State, 872 N.E.2d 617, 621 (Ind. Ct. App. 2007), trans.
denied.
[17] Second, a petitioner must establish that counsel’s deficient performance resulted
in prejudice to the petitioner. Wilkes, 984 N.E.2d at 1240. That is, the
defendant must show a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different. Id. at 1241. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Id.
[18] Talley asserts that his trial counsel should have filed a motion to bifurcate the
charge of possession of a handgun by a SVF from the charges of resisting law
enforcement because he was unduly prejudiced as to the resisting charges when
the jury heard evidence that he was a SVF. The State responds that a motion to
bifurcate would have failed and that counsel’s decision to refrain from seeking
bifurcation was a strategic choice that this Court cannot second-guess.
[19] We turn to whether trial counsel performed deficiently. In preparation for trial,
Talley’s counsel, who has sixteen years alone of criminal defense experience as
a part-time attorney with the Lake County public defender’s office, sent an
investigator to examine the scene of the crimes and to interview witnesses,
conducted depositions of the State’s witnesses, reviewed discovery provided by
the State, and consulted with Talley.
[20] After reviewing the State’s documents and talking with witnesses for both sides,
counsel chose a strategy of directly challenging the State’s evidence that Talley
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possessed a handgun. She intended to call witnesses to testify that Talley did
not have a gun during the events at issue.
[21] The evidence shows that counsel is familiar with the case law that governs
bifurcation of trials. She considered filing a motion to bifurcate, but she
concluded that it would not succeed because the facts related to the various
offenses were interconnected. Furthermore, she thought that Talley’s prior
conviction, although prejudicial, could be properly admitted as evidence of
motive. Conversely, the prior conviction could have also established a motive
to refrain from carrying a firearm. Counsel expected to call several witnesses to
testify that Talley did not have a gun during the events at issue, and she
believed those witnesses would tell the jury that Talley would never carry a gun
because he was a convicted felon. Counsel concluded under these
circumstances that moving to exclude the evidence of prior convictions on
grounds of staleness was the best option to keep the jury from ever learning of
the convictions.
[22] Pursuant to Indiana Evidence Rule 404(B), evidence of a prior conviction may
1
be relevant to prove purposes, including motive. However, even if evidence of
1
Talley argues that we may not consider whether the prior conviction was admissible as evidence of motive
because the State did not present the motive argument during Talley’s original trial. Talley’s argument fails
because the State presented the motive argument during post-conviction proceedings, and the post-conviction
court had the opportunity to consider that argument in ruling upon Talley’s claim of ineffective assistance of
trial counsel.
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a prior conviction is relevant, the probative value of such evidence must not be
outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403.
[23] Talley’s trial counsel was correct that Talley’s prior robbery conviction could
have been relevant to prove motive in connection with the charges of resisting
law enforcement. See Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct. App. 2014)
(presence of a rifle in defendant’s car was admissible at trial because it was
evidence of his motive to flee from the police in the car and on foot), trans.
denied. In addition, the relevance of Talley’s prior conviction was not
substantially outweighed by undue prejudice because the jury also heard that
Talley had blurted out to Officer Campos, “Let me go. I’m a convicted felon”
during his arrest. Trial Tr. p. 85. Based on Talley’s admission against his own
interest, it was unlikely that the jury would give undue weight to evidence of the
armed robbery conviction as described by the State’s witnesses. See Fuentes, 10
N.E.3d at 73 (admission of rifle not unduly prejudicial where the jury heard
evidence that defendant also possessed a handgun).
[24] If Talley’s trial counsel had filed a motion to bifurcate, the trial court would not
have been obligated to grant the motion because evidence of Talley’s prior
conviction for armed robbery was relevant and admissible to prove his motive
for resisting law enforcement. As a result, counsel made a strategic decision not
to pursue bifurcation but rather to try to exclude Talley’s prior conviction and
to challenge the State’s evidence by presenting evidence that Talley never
possessed the handgun. We afford deference to such decisions.
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[25] Talley cites Hines v. State, 801 N.E.2d 634 (Ind. 2004), and Pace v. State, 981
N.E.2d 1253 (Ind. Ct. App. 2013), in support of his claim that the trial court
would have been compelled to grant bifurcation had it been requested, but those
cases are factually distinguishable. In Hines, the defendant was charged with
possession of a firearm by a SVF and robbery, and the prior felony conviction
was not relevant to the robbery charge. 801 N.E.2d at 635. In Pace, the
defendant was charged with possession of a firearm by a SVF and Class B
felony dealing in methamphetamine, and the prior conviction was not relevant
to the dealing charge. 981 N.E.2d at 1260. By contrast, Talley’s prior
conviction for armed robbery was relevant to prove his motive to commit the
offense of resisting law enforcement.
[26] The post-conviction court did not err in rejecting Talley’s claim that trial
counsel rendered deficient performance, so it is unnecessary to address the
element of prejudice. Emerson v. State, 695 N.E.2d 912, 918 (Ind. 1998) (failure
to establish both elements of a claim of ineffective assistance of counsel “will
cause the entire claim to fail.”). Nonetheless, we note as to prejudice that, even
if trial counsel had filed a motion to bifurcate and the trial court had granted the
motion, the jury still would have heard during the trial on the charges of
resisting law enforcement that Talley had blurted out to Officer Campos that he
was a convicted felon. See Ind. Evidence Rule 801(D)(1) (a party-opponent’s
statements are not hearsay and may be admitted). Thus, the jury would have in
any event learned that Talley had a prior felony, and it is unclear whether being
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told that the prior felony was specifically an armed robbery would have resulted
in a different outcome.
Conclusion
[27] For the reasons stated above, we affirm the judgment of the post-conviction
court.
[28] Affirmed.
Baker, J., and Najam, J., concur.
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