MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Dec 08 2016, 9:05 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Gregory F. Zoeller
Brooke Smith Attorney General of Indiana
Keffer Barnhart LLP
Angela N. Sanchez
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Maximilian Spiegel, December 8, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1604-PC-773
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Anne Flannelly,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G04-1108-PC-60510
Bailey, Judge.
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Case Summary
[1] Appellant-Petitioner Maximilian Spiegel (“Spiegel”) appeals the denial of his
petition for post-conviction relief, following his conviction for Child Molesting.
He presents the issue of whether he was denied the effective assistance of trial
counsel. We affirm.
Facts and Procedural History
[2] The relevant facts were recited by a panel of this Court on direct appeal, as
follows:
In April 2011, eighteen-year-old P.L. wrote a letter to her older
sister C.H., alleging that P.L. had been molested by “Uncle
Max” since she was in first grade and that the abuse had just
recently stopped. C.H. showed the letter to her mother, who
then telephoned her sister, Spiegel’s wife. Spiegel was referred to
as “Uncle Max.” Spiegel also spoke to P.L.’s mother during that
call, was crying, was extremely upset, and repeatedly threatened
to kill himself, but he did not deny P.L.’s allegations.
P.L.’s mother then informed P.L.’s father, J.L., of the
allegations. J.L. had previously been convicted of and
incarcerated for molesting his step-daughter, C.H. J.L.
telephoned Spiegel, who initially denied the allegations.
Subsequently, though, Spiegel stated that he “did do it” and was
“sorry for what he had done.”
At the time of P.L.’s allegations, C.H. worked for the Indiana
Department of Child Services. Spiegel telephoned C.H. several
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times beginning in May 2011. He inquired about DCS
procedures and what would happen next, said he would admit
what he had done, and apologized. During that time, Spiegel
also sent several text messages to C.H. In the texts, Spiegel said
he had “hurt everybody so bad[ly],” Exh. 9; apologized; and said
he was in three kinds of therapy. And in June, Spiegel asked
C.H. to encourage her mother and sister not to press criminal
charges. He offered to make “retribution in the form of gifts”
such as “paying for college or buying a vehicle for P.L.”
The State charged Spiegel with two counts of child molesting, as
Class A felonies, and one count of sexual misconduct with a
minor, as a Class B felony. The court held a jury trial on July 2,
2012. P.L. testified that she could not estimate how many times
Spiegel had molested her, but she testified that it began when she
was in first grade and continued for years. For example, she gave
details of two occasions when she was seven years old when
Spiegel blindfolded her and forced her to perform oral sex on him
in exchange for candy. She also described an occasion when she
was in eighth grade in which Spiegel picked her up on the
pretense of taking her to buy tennis shoes as a reward for her
team winning a championship. They stopped at his house, and
he asked her to come in. He turned the television on for her, and
pornography was playing. He left the room for a couple of
minutes, and, when he returned, he pulled his penis out. She
said she did not feel well, but he prayed over her and then made
her perform oral sex on him. Finally, P.L. described a particular
occasion when she was playing Barbie dolls with her cousin at
Spiegel’s house when Spiegel called to her from his bedroom.
P.L. went to the bedroom and found Spiegel lying on the bed
with his penis exposed through the zipper of his jeans. He stood
and instructed her to kneel and had her perform oral sex on him.
Spiegel also testified at trial. The prosecutor asked whether he
knew why his family believed P.L.’s allegations, and Spiegel
answered that he did not know. In response, the prosecutor
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commented, “You’re a good liar.” The trial court sustained
Spiegel’s objection and request to strike, and when he requested
that the court admonish the jury, the trial court stated, “so
admonished.” The trial court denied Spiegel’s request for a
mistrial.”
Later, in its rebuttal to closing argument, the State made the
following comment: “If you decide not to believe P.L., you go
back and deliberate and when you’re done you say, [‘]We
believed her but we needed more evidence,[‘] we might as well
just tell our children to just take it and shut up because that’s
what you’ll be saying.” Spiegel objected on the ground that it
was improper to “argue about … the effect on the community[.]”
The trial court responded that the statement was made during
closing argument and was not evidence, overruling the objection.
Subsequently in closing argument, the State referred to P.L.’s
father, who had previously been convicted of child molesting,
had gone to prison, and had been “set free in prison because it
changed his life when he went to prison” and “healed” him.
Then, referring to Spiegel, the prosecutor said, “That’s what
we’re asking for the defendant. We’re asking you to send a
message that he can live his life differently.” The trial court
overruled Spiegel’s objection. Finally, the prosecutor also said,
“You can’t be set free by hiring an attorney to get you off when
you know you’ve done wrong.” The trial court sustained
Spiegel’s objection and request to strike, and the prosecutor then
stated, “Oh, no; he has a right to counsel. Absolutely. I would
never want to do this without an attorney sitting over there.”
During deliberations, the jury sent two questions to the trial
court:
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1. Did the molestation have to occur between July 1999 and
June 2000 or (Rule/Instruction 5a) could the molestation
occur at any time prior to her turning 14.
2. Define “on or about.” How much time can be added to the
time frame July 19, 1999[,] and June 18, 2000.
Appellant’s App. at 101. The trial court discussed the
appropriate response with the parties. Spiegel initially objected
“to the entire process” on the ground that there was no difference
between the evidence at trial and the charging information 1 and,
therefore, an additional instruction was neither necessary nor
appropriate. The trial court noted the objection for the record but
did not rule on it. Initially, the trial court did not agree with the
State that there was a difference between the evidence and the
charging information. However, after further discussion, the trial
court concluded that there was a difference and that an
additional instruction was necessary. The court then determined
the language to be used in answering the jury questions and
discussed the method of communicating that to the jury:
The Court: You want me to tell them there’s a new instruction
when they come back out or do you just want to give it to them
without reading all this?
[State]: I would defer to [defense counsel] and what he feels
comfortable with.
1
At trial P.L. testified to multiple incidents of abuse by Spiegel spanning several years. At the close of
evidence, the State dismissed two counts, leaving only one count that charged Spiegel for molesting P.L. over
a span of dates when she was approximately seven years old. Spiegel argued to the trial court that any
confusion occasioned by the jury regarding dates, which was the basis for the jury question, arose after the
State dismissed the other two counts and, therefore, was the State’s own fault.
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[Defense]: Judge, I think – I think we add a new instruction,
we give them their instructions and –
The Court: Let them go back?
[Defense]: Let them go back.
The Court: Okay. Let’s make copies. When they come out –
[State]: Not read them to them? Is that what you’re saying,
you don’t need them read to the jurors?
The Court: I don’t need them read to the jurors. I mean, as
long as they have the instruction.
[State]: And as long as they know that there’s a new
instruction in there?
The Court: I’m just going to say we’ve reviewed your question
and we’ve come to a decision, all parties, concerning an answer
to your question or questions. There’s an additional 5B1
instruction in your packet of which [sic] you were just given.
This becomes part of your final – this becomes your preliminary
instructions additional [sic]. Please go back and deliberate.
Okay?
[Defense]: That procedure’s fine with me.
[State]: Fine with the State.
The Court: Okay? (court confers with staff.)
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[Defense]: Well, well –
The Court: You said that’s okay. Given [sic] them a copy of
the new instruction –
[Defense]: The new – the instructions. I think the issue is
handing them this instruction by itself is drawing – is the drawing
attention that I had concern about. Telling the jurors here’s the
instruction, you put it back in your packet, that’s – that’s the
drawing attention that I’m concerned about. I think – I think
they – they should be – the instructions should be inserted and
they should be given all the instructions.
The Court: (Court confers with staff.) All right, we’ll just make
copies and reinsert them.
JURY RETURNS TO THE COURTROOM
The Court: . . . In response to your question, the Court
responds as follows: There is an additional instruction in your
Court’s preliminary instruction booklet number 5A1. Continue
to deliberate. Good luck.
After deliberating further, the jury found Spiegel guilty of child
molesting, as a Class A felony. The trial court entered judgment
of conviction and sentenced Spiegel accordingly.
Spiegel v. State, No. 49A02-1208-CR-687, slip op. at 2-6, (Ind. Ct. App. April 18,
2013). (transcript citations omitted.)
[3] Spiegel appealed, raising two issues: whether the prosecutor’s statements made
during cross-examination and closing argument constituted prosecutorial
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misconduct and whether the trial court abused its discretion when giving the
jury the additional instruction after deliberations had already begun. Slip op. at
2. A panel of this Court affirmed the conviction. Id. More specifically, this
Court concluded that: the prosecutor did commit misconduct when she called
Spiegel a good liar because attorneys are not permitted to offer a personal
opinion as to credibility; the comment did not subject Spiegel to grave peril in
light of the abundance of evidence of his guilt; Spiegel lacked cogent reasoning
to demonstrate fundamental error related to the prosecutor’s other objectionable
comments; and Spiegel did not preserve the jury instruction issue for review,
because he objected on one ground at trial and relied on a different ground on
appeal and he also invited alleged error. Id. at 8-11.
[4] Beyond that, the Court “expressed [the] belief” that certain comments
constituted misconduct. Id. at 10. The reference to telling the children to shut
up was not based upon the evidence and appeared to the Court to be an attempt
to play on the fears of the jurors. Id. Suggesting that Spiegel might be healed in
prison was an impermissible comment on possible penal consequences. Id.
Finally, the prosecutor should not have highlighted the disparate roles of
prosecutor and defense attorney. Id. at 11.
[5] Spiegel filed a petition for post-conviction relief on April 17, 2014, alleging
ineffectiveness of trial and appellate counsel. An evidentiary hearing was
conducted on February 24, 2015, at which Spiegel’s trial and appellate counsel
testified. On March 15, 2016, the post-conviction court entered its findings of
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fact, conclusions of law, and order denying Spiegel post-conviction relief. This
appeal ensued.
Standard of Review
[6] The petitioner in a post-conviction proceeding bears the burden of establishing
the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Id. On review, we will not reverse
the judgment of the post-conviction court unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. A post-conviction court’s findings and judgment will
be reversed only upon a showing of clear error, that which leaves us with a
definite and firm conviction that a mistake has been made. Id. In this review,
findings of fact are accepted unless they are clearly erroneous and no deference
is accorded to conclusions of law. Id. The post-conviction court is the sole
judge of the weight of the evidence and the credibility of witnesses. Id.
Effectiveness of Trial Counsel
[7] Spiegel contends he was denied the effective assistance of trial counsel in four
respects: trial counsel (1) failed to adequately challenge statements made by the
deputy prosecutor during closing argument; (2) failed to object when P.L.’s
father was asked about having special expertise; (3) failed to object to the
procedure by which the jury was given an additional instruction during
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deliberation; and (4) failed to adequately challenge inappropriate commentary
on the part of the deputy prosecutor over the course of the trial.
[8] Effectiveness of counsel is a mixed question of law and fact. Strickland v.
Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims
of ineffective assistance under the two-part test announced in Strickland. Id. To
prevail on an ineffective assistance of counsel claim, a defendant must
demonstrate both deficient performance and resulting prejudice. Dobbins v.
State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).
Deficient performance is that which falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d
1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates 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.”
Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.
1996). The two prongs of the Strickland test are separate and independent
inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice … that course
should be followed.” Id.
[9] We “strongly presume” that counsel provided adequate assistance and
exercised reasonable professional judgment in all significant decisions. McCary
v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded
considerable discretion in the choice of strategy and tactics. Timberlake v. State,
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753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the
facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d
1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring
reasonable professional judgment even if the strategy in hindsight did not serve
the defendant’s interests. Id. In sum, trial strategy is not subject to attack
through an ineffective assistance of counsel claim, unless the strategy is so
deficient or unreasonable as to fall outside the objective standard of
reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
[10] Initially, Spiegel contends that the jury was “poisoned by comments” and his
trial counsel was ineffective for failure “to object or appropriate[ly] respond to
the deputy prosecutor’s unacceptable advocacy.” Appellant’s Brief at 15-16.
He further contends: “had trial counsel objected at various points during the
deputy prosecutor’s closing arguments, it would have or should have been
sustained.” Appellant’s Brief at 16. However, as the State points out, Spiegel
fails, in the corresponding argument, to direct our attention to specific instances
where counsel remained silent.
[11] Spiegel briefly summarized the four instances of prosecutorial misconduct
discussed by this Court on direct appeal. To the extent that he claims his
defense counsel acquiesced, the record does not support this contention. When
the deputy prosecutor called Spiegel “a very good liar,” counsel immediately
objected, made a successful motion to strike, and obtained a jury
admonishment. (Tr. at 319.) When the deputy prosecutor claimed “we might
as well just tell our children to just take it and shut up,” defense counsel
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objected and argued, albeit unsuccessfully, that it was improper argument about
effect upon the community. (Tr. at 396.) When the deputy prosecutor urged
the jury that prison could bring “healing” and she was asking that for the
defendant, defense counsel again objected. (Tr. at 399.) When the deputy
prosecutor argued, “You can’t be set free by hiring an attorney to get you off
when you know you’ve done wrong,” defense counsel objected and the trial
court ordered the commentary stricken. (Tr. at 407.) Indeed, as the post-
conviction court concluded, the record is replete with instances in which
defense counsel challenged the deputy prosecutor’s advocacy. A bald assertion
that defense counsel was not vigorous enough in opposing the State does not
adequately support a claim of ineffectiveness. See Woodson v. State, 961 N.E.2d
1035, 1041-42 (Ind. Ct. App. 2012) (“Strickland does not guarantee perfect
representation, only a reasonably competent attorney.”) (citation and quotation
marks omitted).
[12] Spiegel also contends that trial counsel was ineffective when he failed to object
or move for a mistrial after the deputy prosecutor asked P.L.’s father, J.L.,2
about his “special experience with these kinds of allegations.” (Tr. at 193.)
According to Spiegel, his counsel should have prevented the State’s elicitation
of opinion testimony by a lay witness not qualified under Indiana Evidence
2
We observe that J.L. is referred to in the trial transcript only by initials.
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Rule 701 or expert testimony by an expert witness not qualified under Evidence
Rule 702.
[13] Evidence Rule 701 provides:
If a witness is not testifying as an expert, testimony in the form of
an opinion is limited to one that is:
(a) rationally based on the witness’s perception; and
(b) helpful to a clear understanding of the witness’s testimony or
to a determination of a fact in issue.
[14] Evidence Rule 702 provides:
(a) A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is
satisfied that the expert testimony rests upon reliable scientific
principles.
[15] With this legal background, we look to the testimony actually elicited from J.L.
When asked to describe his “experience” to the jurors, J.L. responded: “My
experience with this is that I did three and a half years in prison for the same
charges that Max is being charged with.” (Tr. at 193.) When J.L. was asked to
describe his experience in prison, defense counsel objected, but was overruled.
J.L. continued:
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First of all, when I went – first went, I was in total denial. A lot
of guilt – a lot of guilt. A lot of fear. Then I got involved in the
program in prison for people with my charges. … They held me
accountable.
(Tr. at 194.) Despite defense counsel’s continued objections as to relevance,
J.L. went on to testify that he had stayed out of trouble and reconciled with his
family. According to J.L., his past experience enabled him to speak to Spiegel
“in an understanding way” and urge Spiegel to “be truthful” so that “healing”
could begin. (Tr. at 196.)
[16] Spiegel claims the jury was invited to infer that, because J.L. was a convicted
child molester, he could identify Spiegel as such. However, J.L. did not offer
an “opinion” as to Spiegel’s guilt or innocence. His testimony of his own
personal experience was irrelevant to the determination of a fact in issue –
something which did not go unchallenged by defense counsel.
[17] J.L.’s testimony culminated with his describing admissions made by Spiegel
(that he “was sorry for what he had done,” that “he did do it” and he was
“meeting with his pastor and going through counseling.”) (Tr. at 197.) While
this was relevant as evidence tending to show Spiegel’s consciousness of guilt, it
is not opinion testimony. Spiegel has not shown that defense counsel failed to
challenge the admission of improper opinion testimony.
[18] Spiegel also claims that his trial attorney was ineffective for failing to object to
“the procedure and manner in which an instruction was given to the jury after
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deliberations had begun.” Appellant’s Br. at 20. During deliberations, the jury
asked two questions:
1. Did the molestation have to occur between July 1999 and
June 2000 or (Rule/Instruction 5A) could the molestation
occur at any time prior to her turning fourteen.
2. Define “on or about.” How much time can be added to the
timeframe July 19, 1999 and June 18, 2000.
(Tr. at 445-46.) A lengthy bench conference ensued, at which defense counsel
objected that additional instruction was unwarranted. After the trial court
decided that a new instruction would be given, defense counsel lodged a
continuing objection to giving the instruction but acquiesced to a particular
procedure. The juror’s instruction packets were collected and a new written
instruction was inserted. The trial court advised the jury: “There is an
additional instruction in your Court’s preliminary instruction booklet numbered
5A1.3 Continue to deliberate. Good luck.” (Tr. at 446.) 4
[19] Indiana Code § 34-36-1-6 provides:
If, after the jury retires for deliberation:
3
The trial court had also referenced the new instruction as 5B and 5B1.
4
The content of the additional instruction was discussed at some length, with the trial court refusing some
language proffered by the State. It appears that the jury was instructed: “When time is not an element of a
crime or ‘of the essence of the offense’ the State is only required to prove that the offense occurred anytime
within the statutory period of limitations. The State is not required to prove the offense occurred on the
precise date alleged in an information.” (Tr. at 433.)
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(1) there is a disagreement among the jurors as to any part of the
testimony; or
(2) the jury desires to be informed as to any point of law arising
in the case;
the jury may request the officer to conduct them into court,
where the information required shall be given in the presence of,
or after notice to, the parties or the attorneys representing the
parties.
[20] Once deliberations commence, the trial court should not give additional
instructions. Crowdus v. State, 431 N.E.2d 796, 798 (Ind. 1982). The rule exists
to prevent the trial court from giving special emphasis to a particular issue in
the case, whether the emphasis is inadvertent or otherwise. Id. Only where
there is a “legal lacuna,” an empty space or gap in the law, may the trial court
respond by means other than rereading the body of final instructions. Dowell v.
State, 973 N.E.2d 58, 60 (Ind. Ct. App. 2012). If the trial court decides to give
an additional instruction because a jury question relates to a legal lacuna, the
trial court must reread all of the instructions so that the additional instruction
will not be over-emphasized. Id.
[21] Here, even assuming a legal lacuna, the trial court did not reread all instructions
so as to alleviate emphasis on one. Although defense counsel mentioned at one
point: “I think the proper response is reread the instructions,” (Tr. at 412), and
later re-iterated “we would want it done that way,” (Tr. at 432), he did not
continue to insist upon follow-through with this procedure after the trial court
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decided to give a new instruction. Thus, Spiegel arguably did not receive
optimal representation in this matter. Nonetheless, to prevail upon his claim of
ineffectiveness, Spiegel must also show that he suffered prejudice, that is, a
reasonable probability of a different result sufficient to “undermine confidence
in the outcome” of the trial. Strickland, 466 U.S. at 694.
[22] Our review of the record leads us to conclude that there is not a reasonable
probability that Spiegel would have been acquitted had his defense counsel
insisted upon rereading of all instructions. P.L. testified that Spiegel had
molested her on multiple occasions, beginning when P.L. was in first grade.
P.L.’s mother testified that she confronted Spiegel and he became hysterical and
threatened suicide; however, he did not deny the allegation. P.L.’s father
testified that Spiegel admitted to molesting P.L., expressed remorse, and
claimed to be in counseling to address his behavior. P.L.’s sister testified that
she had communicated with Spiegel and he had assured her that he intended to
take responsibility for his actions and spare the family a trial. According to
P.L.’s sister, Spiegel encouraged her to influence P.L. not to pursue a criminal
conviction and offered to pay for P.L.’s tuition and a vehicle. Finally, the State
introduced into evidence various text messages from Spiegel to P.L.’s sister,
asking for mercy and forgiveness and offering financial incentives. In light of
this evidence, trial counsel’s failure to secure the rereading of all instructions
does not constitute prejudice within the dictates of Strickland.
[23] Finally, Spiegel argues that he is entitled to a new trial because of his counsel’s
cumulative failures to object and follow up with requests for admonishment and
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mistrial. However, our review of the record as a whole leads to the conclusion
that counsel’s performance did not fall below reasonable professional norms.
During the presentation of evidence, trial counsel was placed in a very difficult
position by testimony of Spiegel’s admissions to and communications with
P.L.’s family members. Moreover, although counsel did not object at every
conceivable juncture, he frequently objected to commentary, argument, or
questions propounded to witnesses. Trial counsel’s efforts and strategy,
although they did not ultimately achieve the result desired by Spiegel, were not
so unreasonable as to constitute ineffective assistance of counsel. See also Badelle
v. State, 754 N.E.2d 510, 539 (Ind. Ct. App. 2001) (deciding in relevant part
that, when trial counsel’s efforts were “more than adequate” to support a
chosen defense, trial counsel’s decision not to seek out additional witnesses was
a judgment call within the wide range of reasonable assistance), trans. denied.
Conclusion
[24] Spiegel did not establish that he was denied the effective assistance of trial
counsel.
[25] Affirmed.
Najam, J., and May, J., concur.
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Maximilian Spiegel v. State of Indiana (mem. dec.)
Combined Opinion