MEMORANDUM DECISION FILED
Jun 27 2016, 6:33 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
John Pinnow Andrew A. Kobe
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael L. Spencer, June 27, 2016
Appellant-Petitioner, Court of Appeals Case No.
35A02-1512-PC-2201
v. Appeal from the Huntington
Superior Court
State of Indiana, The Honorable Jeffrey R.
Appellee-Respondent. Heffelfinger, Judge
Trial Court Cause No.
35D01-1204-PC-006
Mathias, Judge.
[1] Michael L. Spencer (“Spencer”) was convicted in Huntington Superior Court of
two counts of Class A felony dealing in a Schedule I, II, or III controlled
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substance and was sentenced to thirty-five years of incarceration. After
Spencer’s convictions and sentence were confirmed on direct appeal, he filed a
petition for post-conviction relief, which was denied. Spencer appeals and
argues that the post-conviction court erred in rejecting Spencer’s claim that he
was denied the effective assistance of trial counsel.
[2] We affirm.
Facts and Procedural History
[3] The facts underlying Spencer’s convictions were set forth in our memorandum
decision on Spencer’s direct appeal as follows:
During eight months in 2009 and 2010, the Indiana State Police
and Huntington County law enforcement officials investigated a
local problem with the sale of prescription medications. In the
course of their investigation, law enforcement officers put
Spencer’s home, which is less than 400 feet from a city park,
under surveillance.
On November 12 and 18, 2009, a confidential informant
purchased methadone from Spencer at Spencer’s home.
Specifically, on both dates, Indiana State Police Detective Josh
Haber picked up the informant and took him to a meeting with
three Huntington Police Department officers. The officers
searched the informant before he left the meeting. The officers
also gave the informant an audio recording device to covertly
record the drug transactions and $240 to purchase thirty
methadone tablets. Detective Haber drove the informant to
Spencer’s house in an undercover vehicle and watched him walk
up to the front door and into the house. After being in the house
for several minutes, the informant came out through the same
door he went in and walked directly to Detective Haber’s car.
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The informant got into the car and handed the detective a
cellophane wrapper containing the thirty methadone pills he had
just purchased from Spencer. Detective Haber took a statement
from the informant on the way to another meeting with the three
Huntington Police Department officers. Before the meeting, the
officers searched the informant for additional money and drugs,
and the informant gave the officers the recording device. Spencer
was not arrested at the time.
On March 9, 2010, the State requested a search warrant for
Spencer’s home. In the probable cause affidavit, Detective Haber
asserted he had probable cause to believe that evidence of drug
activity, including controlled substances, United States Currency,
records of drug transactions and/or other financial information,
were concealed at Spencer’s house because during a six-month
period, an informant made numerous drug purchases from
Spencer and others at Spencer’s house. The November 12 and 18
transactions were the only transactions directly involving
Spencer. In the affidavit, Detective Haber averred that based on
his experience and training as a narcotics investigator, this type
of evidence is commonly found in a drug trafficker’s residence.
On March 11, 2010, Huntington Police Department Officers
executed the warrant and arrested Spencer. During the search,
the officers found a pill crusher and several empty prescription
pill bottles with Spencer’s name and his wife’s name. Some of the
prescriptions were for methadone. The officers also
photographed the contents of a safe in Spencer’s room. The safe
contained several empty prescription pill bottles with Spencer’s
name, his wife’s name, and his father’s name. The prescriptions
were for methadone and other drugs. The officers also found a
prescription pill bottle with methadone tablets in between the
mattress and box springs in Spencer’s bedroom.
Trial began on August 19, 2010. The informant testified about
the November 12 and 18 drug transactions. He also testified
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without objection that he saw a safe in Spencer’s room that
contained pill bottles and pistols. The jury heard the audiotapes
of the drug transactions, and the State introduced into evidence
prescription records from five different pharmacies, which
showed that Spencer filled monthly prescriptions for 180
methadone tablets, 120 hydrocodone tablets, and 90 xanax
tablets, all from the same physician, at Walgreens. In addition,
he filled another monthly prescription for 448 methadone tablets
from another physician at CVS. A summary of Spencer’s
prescriptions revealed that Spencer purchased 6526 methadone
tablets in eleven months in 2009. The tablets had a street value of
over $50,000.
Also, at trial, over Spencer’s objection, the trial court admitted
the evidence found during the search of his home, which
included the pill crusher, the prescription pill bottle with
methadone tablets, empty prescription pill bottles, and the
photographs of the contents of the safe. The jury convicted
Spencer as charged, and the trial court sentenced him to thirty-
five years on each count, sentences to run concurrently.
Spencer v. State, No. 35A04-1009-CR-601, 2011 WL 1233558 at *2 (Ind. Ct.
App. 2011), trans. denied.
[4] On appeal, Spencer claimed that the search of his home was unconstitutional
because the information contained in the affidavit supporting the search
warrant was stale. We rejected this claim and affirmed Spencer’s conviction. Id.
at *3. Our supreme court denied Spencer’s petition to transfer. 950 N.E.2d 1213
(Ind. 2011).
[5] Spencer then began his effort to seek post-conviction relief by filing a pro se
petition on April 18, 2012. After the State’s response, Spencer, now represented
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by the State Public Defender’s office, filed an amended petition for post-
conviction relief. In his petition, Spencer claimed inter alia that his trial counsel
was ineffective for failing to call certain witnesses who would have testified that
the confidential informant who testified against Spencer was also dealing drugs.
The trial court held an evidentiary hearing on Spencer’s petition on October 13,
2015, and on November 25, 2015, the trial court entered specific findings and
conclusions denying Spencer’s petition, which provides in relevant part:
22. Petitioner has failed to demonstrate that he received
ineffective assistance of trial counsel. Petitioner argues that his
trial counsel, Matthew Grantham, was ineffective for uncovering
evidence that C.I. was a drug dealer and for not then using this
evidence at trial. The only evidence Petitioner has presented to
prove that C.I. was a dealer was the testimony of Kenneth
Duckworth, Tyler Tackett, and Zachery Martin. First, none of
these witnesses are particularly credible. They all have prior
convictions that could be used to impeach them at trial under
IRE 608. Second, they are all currently serving time in prison
because of drug deals set up by C.I., which gives them a motive
to lie about the character of C.I. When cross examined on the
details of these transactions, they were hesitant to give the names
of other people involved, in some instances claiming to not
remember those details, but they did not hesitate to detail the
wrongs committed by C.I. Mr. Grantham also testified at his
deposition that, based on Duckworth having a prior impeachable
offense and the circumstances of his pending charges, he did not
find him to be a credible witness. Even if Mr. Grantham had
interviewed these individuals in preparation for the jury trial,
putting them on the witness stand would not have guaranteed an
acquittal for his client.
23. The record shows that Matthew Grantham provided
effective representation before and during the jury trial. He stated
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during the deposition that his trial strategy was to show that C.I.
was not credible. He indicated he reviewed discovery with his
client, and spoke with his client on numerous occasions in
preparation for trial. He obtained a copy of C.I.’s deposition in
Kenneth Duckworth’s case. A review of the trial transcript shows
he vigorously cross-examined witnesses, tried to suppress
evidence obtained after a search of his client’s home, and
frequently objected during the testimony of witnesses when it
would be most damaging to his client. He did cross examine C.I.
on his drug use and financial gain from being a confidential
informant, and suggested during closing arguments that C.I. was
not credible for these reasons. Given the strength of the State’s
case, Mr. Grantham’s strategy seems appropriate.
24. Petitioner has not shown that he was prejudiced by Mr.
Grantham not uncovering this evidence or producing this
evidence at trial. As the Court has already noted, none of these
witnesses are particularly reliable and they only have each other
to corroborate their testimony. Petitioner has also not shown that
this evidence would even be admissible at trial if it had been
uncovered, let alone that it could have resulted in a not guilty
verdict. Evidence that C.I. dealt drugs on occasion would be
inadmissible under IRE 404(b) as character evidence and
Petitioner has not provided any evidence that this would be
relevant to whether Petitioner dealt drugs on November 12 and
18, 2009.
Appellant’s App. pp. 95-96. Spencer now appeals.
Post-Conviction Standard of Review
[6] Post-conviction proceedings are not “super appeals” through which convicted
persons can raise issues they failed to raise at trial or on direct appeal. McCary v.
State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead
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afford petitioners a limited opportunity to raise issues that were unavailable or
unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443
(Ind. 2002). The post-conviction petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Henley v. State, 881
N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of a petition for
post-conviction relief, the petitioner stands in the position of one appealing
from a negative judgment. Id. To prevail on appeal from the denial of post-
conviction relief, the petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that reached by the post-
conviction court. Id. at 643-44.
[7] Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we
must determine if the court’s findings are sufficient to support its judgment.
Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947
N.E.2d 962. Although we do not defer to the post-conviction court’s legal
conclusions, we review the post-conviction court’s factual findings under a
clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or
judge the credibility of witnesses, and we will consider only the probative
evidence and reasonable inferences flowing therefrom that support the post-
conviction court’s decision. Id.
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Ineffective Assistance of Trial Counsel
[8] Spencer claims that his trial counsel was ineffective. Our supreme court has
summarized the law regarding claims of ineffective assistance of trial counsel as
follows:
A defendant claiming a violation of the right to effective
assistance of counsel must establish the two components set forth
in Strickland v. Washington, 466 U.S. 668 (1984). First, the
defendant must show that counsel’s performance was deficient.
This requires a showing that counsel’s representation fell below
an objective standard of reasonableness, and that the errors were
so serious that they resulted in a denial of the right to counsel
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. To establish prejudice, a defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Counsel is afforded considerable discretion in choosing strategy
and tactics, and we will accord those decisions deference. A
strong presumption arises that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. The Strickland Court
recognized that even the finest, most experienced criminal
defense attorneys may not agree on the ideal strategy or the most
effective way to represent a client. Isolated mistakes, poor
strategy, inexperience, and instances of bad judgment do not
necessarily render representation ineffective. The two prongs of
the Strickland test are separate and independent inquiries. Thus, if
it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice . . . that course should be followed.
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Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations
omitted).
[9] On appeal, Spencer claims that the trial court erred in determining that his trial
counsel was not ineffective for failing to call witnesses who would have testified
that the confidential informant who testified against Spencer was also dealing
drugs. Spencer claims that this evidence would have impeached the informant’s
credibility and rebutted the notion that the informant was acting simply to help
the community. Spencer argues that the credibility of the informant was vital to
his case because no one else was present during the controlled buys. We
disagree.
[10] Even if we assume arguendo that Spencer’s trial counsel’s failure to present these
witnesses was deficient performance, Spencer has not shown that this deficient
performance prejudiced him. In other words, Spencer has failed to show a
reasonable probability that, but for his trial counsel’s alleged deficiency, the
result of the proceeding would have been different.
[11] The evidence against Spencer was exceptionally strong. Although Spencer
claims that no other witnesses saw the controlled buys, the audio recordings of
the transactions were admitted into evidence. More importantly, the State
introduced into evidence prescription records from five different pharmacies
showing that Spencer filled monthly prescriptions for 180 methadone tablets,
120 hydrocodone tablets, and 90 Xanax tablets at one pharmacy and another
monthly prescription for 448 methadone tablets from another physician at
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another pharmacy. As we noted in our direct appeal, Spencer purchased over
6500 methadone tables — with a street value of over $50,000 — in eleven
months. Moreover, the search of Spencer’s home revealed overwhelming
evidence of Spencer’s involvement with selling methadone, including a pill
crusher and empty prescription bottles with the names of both Spencer and his
wife. Also, the safe in Spencer’s bedroom contained other empty prescription
bottles in the name of Spencer, his wife, and his father.
[12] Furthermore, as noted by the trial court, the witnesses Spencer now claims his
trial counsel should have called to impeach the confidential informant’s
testimony were themselves of questionable reliability; they were all incarcerated
on drug charges resulting from transactions set up by the informant and had
every reason to impugn the informant’s character. Indeed, the testimony of
these witnesses might have been more harmful than helpful to Spencer’s case.
All of them admitted that they had participated in controlled buys involving the
informant, and two of the witnesses stated that they had sold drugs from
Spencer’s house — a fact that corroborated the informant’s testimony that these
two witnesses sold methadone for Spencer, even though these two witnesses
denied obtaining the methadone from Spencer.
[13] Assuming Spencer’s allegations are true, his uncalled witnesses would have
stated that the informant was also selling drugs at the time. Spencer has not
shown that this unsurprising testimony would have created a reasonable
probability that the result of the proceeding would have been any different.
Accordingly, we cannot say that his trial counsel was ineffective for failing to
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call these witnesses to impeach the informant’s credibility, and we affirm the
post-conviction court’s denial of Spencer’s petition for post-conviction relief.
[14] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
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