Attorney for Appellant
Hillary Bowe Oakes
Indianapolis, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
JEFFREY V. CARTER,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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) Supreme Court No.
) 49S00-9701-CR-23
)
)
)
)
)
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Ruth Reichard, Judge
Cause No. 49G02-9502-CF-19872
ON DIRECT APPEAL
November 16, 2000
SULLIVAN, Justice.
Defendant Jeffrey Carter was convicted of attempted murder and a
handgun violation following a melee in a “strip club.” We affirm, finding
among other things that medical records obtained after trial would not have
produced a different result; that claims of prosecutorial misconduct during
closing argument were waived for failure to object; and that what Carter
claims were mistakes by counsel were either not mistakes at all or the
result of reasonable strategic decisions.
We have jurisdiction over this appeal because the longest single
sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule
4(A)(7).
Background
The facts most favorable to the verdict show that Carter and several
friends patronized an Indianapolis “strip club” on February 9, 1995.
Carter and his friends got into a series of arguments with several of the
dancers. One of the club’s bouncers, Michael Jackson, came over to the
table. Carter then began to argue with Jackson. Kenton “Boo” Tarvin, who
was another bouncer and also a friend of Carter’s, came to the table to
calm the situation. Tarvin failed to do so and Jackson told Tarvin that
Carter and his friends were not welcome. Tarvin asked them to leave. The
group initially complied peacefully, but according to several witnesses
Carter drew a gun and fired as he was exiting the club. Bullets struck
Tarvin in the lower abdomen and Jackson in the buttocks. Tarvin was
severely injured in the shooting while Jackson was treated and released
from an Indianapolis hospital.
Carter was charged with two counts of attempted murder – one for
shooting Tarvin and one for shooting Jackson – and one count of carrying a
handgun without a license. He was also charged as a habitual offender. A
jury convicted Carter of attempted murder for the shooting of Jackson and
convicted him of the handgun charge, but acquitted Carter of the attempted
murder of Tarvin. In a separate proceeding, the jury found Carter to be a
habitual offender. The trial court sentenced Carter to 25 years on the
attempted murder conviction, which the court enhanced by 30 years because
of Carter’s habitual offender status. The judge also sentenced Carter to
one year for the handgun offense, to be served concurrently with his other
sentence.
Carter appealed the verdicts and the habitual offender determination
on several grounds, but subsequently obtained a stay of that appeal in
order to pursue post-conviction relief through the procedure set out in
Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977). The post-conviction
court denied Carter’s petition and he now seeks review of that decision as
well as errors claimed in his original appeal.
Additional facts will be set forth as necessary.
Discussion
I
Because Carter’s main arguments rest with those issues raised in his
post-conviction petition, we will deal with them first.
A
Carter’s primary contention is that two pieces of new evidence
require that he be granted a new trial. First, Carter points to medical
records compiled when Jackson was taken to an Indianapolis hospital and the
post-conviction analysis of these records by forensic scientist Dr. John
Pless. He claims that this evidence demonstrates that Jackson’s wound was
self-inflicted. Second, Carter argues that the testimony of one Ronald
Collins at the post-conviction relief hearing requires a new trial.
Collins, who was in prison at the time of the original trial and whose name
was never mentioned during that trial, testified that he was in fact the
shooter that night at the club.
The post-conviction court rejected these contentions and we will
review the decision of that court with great deference. See Williams v.
State, 724 N.E.2d 1070, 1076 (Ind. 2000) (noting that post-conviction
relief procedures present a defendant with a “narrow remedy” and not a
“super appeal”); Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999). In
the post-conviction court, Carter stood in the shoes of a civil plaintiff
and bore the burden of showing by a preponderance of evidence why his
conviction should be set aside. See id.; Johnson v. State, 693 N.E.2d 941,
945 (Ind. 1998). He therefore is appealing from a negative judgment on
these issues and “must show that the evidence as a whole ‘leads unerringly
and unmistakably to a conclusion opposite to that reached by the trial
court.’” Williams, 724 N.E.2d at 1076 (quoting Weatherford v. State, 619
N.E.2d 915, 917 (Ind.1993)). See also Johnson, 693 N.E.2d at 945 (“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.”)
As the post-conviction court correctly noted, new evidence will
mandate a new trial only when the defendant demonstrates that: (1) the
evidence has been discovered since the trial; (2) it is material and
relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it
is not privileged or incompetent; (6) due diligence was used to discover it
in time for trial; (7) the evidence is worthy of credit; (8) it can be
produced upon a retrial of the case; and (9) it will probably produce a
different result at retrial. See Fox v. State, 568 N.E.2d. 1006, 1007
(Ind. 1991). This Court analyzes these nine factors with care, as “[t]he
basis for newly discovered evidence should be received with great caution
and the alleged new evidence carefully scrutinized.” Reed v. State, 508
N.E.2d 4, 6 (Ind. 1987).
As for the medical evidence, the post-conviction court found that the
records and testimony did not merit a new trial because they would not lead
to a different result at a retrial and thus did not meet the final element
of the Fox test. This conclusion – if it was error at all – was not so
obviously mistaken as to require reversal. See Williams, 724 N.E.2d at
1076. The medical records show that a bullet slashed through Jackson’s
left buttock diagonally from either top to bottom or bottom to top. Carter
uses these records to argue that the wound probably was suffered as Jackson
attempted to draw a gun from his back waistband.[1] In this vein, Dr.
Pless testified that there was a “probability – meaning greater than 51%”
(R.P-C.R. at 719) that the wound was self-inflicted.[2] However, the State
claims and the post-conviction court held that the jury could properly have
found that the wound was suffered as Jackson dove over a nearby bar, as all
parties agree he did around the time of the gunshots.[3] Carter counters
this argument by saying the evidence at trial shows that Jackson was shot
before he jumped over the bar.
Our review finds the evidence on this point to be in conflict.
Jackson’s own testimony was equivocal and his memory unclear. Carter has
not shown that “the evidence is without conflict and leads to but one
conclusion, and the post-conviction court has reached the opposite
conclusion.” Johnson, 693 N.E.2d at 945. He bore the burden of proof in
the post-conviction court. See id. There was evidence to support the post-
conviction court’s conclusion that the “probability” of a self-inflicted
wound that Dr. Pless pointed to was not enough to override the facts as
found by the jury.
The testimony of Ronald Collins is less problematic. The post-
conviction court found that this testimony failed the Fox standard because
it would likely be unavailable at a new trial and it was not worthy of
credit. Collins’s lack of credibility resolves the claim. Carter claims
that there is nothing in the record that would undercut Collins’s
credibility, but that assertion fails in several respects. First, we note
that the post-conviction court had the benefit of viewing Collins’s face
and his reactions during testimony. See State v. McCraney, 719 N.E.2d
1187, 1191 (Ind. 1999) (“Whether a witness’ testimony at a postconviction
hearing is worthy of credit is a factual determination to be made by the
trial judge who has the opportunity to see and hear the witness testify.”).
Second, the post-conviction court found that Collins never came forward
with his story until Carter’s case reached the post-conviction stage.
Finally, many of the witnesses testified at trial that Carter was with two
other men, while Collins describes a party totaling five men. These facts
justify the post-conviction court’s distrust of Collins’s credibility. As
this Court noted in McCraney, “[i]t is not within an appellate court’s
province to replace the trial court’s assessment of credibility with its
own,” but that is precisely what Carter asks us to do here. 719 N.E.2d at
1191.
B
Carter next claims that the prosecutor committed misconduct by not
disclosing Michael Jackson’s medical records during discovery.
Correspondingly, he argues that these records show that the prosecutor put
on perjured testimony because Michael Jackson testified that he was shot
twice, while the records apparently show only one wound. We reject both of
these claims of prosecutorial misconduct.
Carter argues that the medical records were withheld from him in
violation of both local discovery rules and the constitutional rule of
prosecutorial disclosure laid down in Brady v. Maryland, 373 U.S. 83
(1963). First, the local discovery rules require the prosecutor to
“disclose the following material and information within its possession or
control: [a]ny reports or statements of experts, made in connection with
the particular case, including results of physical or mental examinations.”
Marion County Crim. Div. R. 7(2)(a)(4) (emphasis added). The emphasized
portion of the rule was omitted from the petitioner’s brief, but this
language makes all the difference in this case. See Appellant’s Br. at 28;
Reply Br. at 10. The plain language of the rule requires disclosure of
records in the prosecutor’s “possession or control.” The records at issue
here were subpoenaed by Carter from the hospital where Jackson was treated
and Carter points to no evidence that the prosecutor ever possessed these
records, controlled them, or even knew about them until the post-conviction
stage. See Appellee’s Br. at 5; Reply Br. at 10. Carter bore the burden
of proof on this issue in the post-conviction court and failed to carry it.
See, e.g., Johnson, 693 N.E.2d at 945. This discovery rule, on its face,
is simply inapplicable.
Carter also challenges the constitutionality of what he claims was the
State’s nondisclosure of Johnson’s records. But absent any showing that
the State possessed or controlled these records, this challenge also fails.
See, e.g., Goudy v. State, 689 N.E.2d 686, 695 (Ind. 1997) (“The
prosecutor in a criminal case has a constitutional mandate to turn over
material exculpatory evidence in its possession.”) (emphasis added); United
States v. Whitehead, 176 F.3d 1030, 1036 (8th Cir. 1999) (“The government
need not disclose evidence that is, inter alia, available through other
sources or not in the possession of the prosecutor.”); Sanchez v. United
States, 50 F.3d 1448, 1453 (9th Cir. 1995) (“The government has no
obligation to produce information which it does not possess or of which it
is unaware.”). Cf. Conner v. State, 711 N.E.2d 1238, 1246 (Ind. 1999) (“The
Seventh Circuit Court of Appeals has consistently emphasized that the State
will not be found to have suppressed material information if that
information was available to a defendant through the exercise of reasonable
diligence.”), cert. denied, 121 S. Ct. 81 (2000).
Carter’s final argument in respect of these medical records is that
they demonstrate that Jackson perjured himself on the witness stand and
that the prosecutor thereby committed misconduct by introducing Jackson’s
testimony. The claimed perjury arose when Jackson testified that he had
suffered “two gunshot wounds,” (R. at 408) while the medical records
purportedly show that he suffered a single gunshot wound.
In Indiana, witnesses commit perjury only when they make “a false,
material statement under oath or affirmation, knowing the statement to be
false or not believing it to be true.” Ind. Code § 35-44-2-1. See also
Paschall v. State, 717 N.E.2d 1273, 1276 (Ind. Ct. App. 1999). Carter has
not shown with sufficient clarity either that Jackson’s testimony was in
fact false or that Jackson knew that it was false at the time.[4]
First, while Carter can point to several places in the medical records
that refer to a single wound, these records also contain several other
notations indicating that Jackson in fact suffered multiple wounds. (R.P-
C.R. at 656.) (referring to “GSW’s” and “wounds minimal bleeding”)
(emphasis added). These references show that Jackson’s testimony was not
necessarily false.
Second, there is no evidence that Jackson knew that he had suffered
only one wound and thus knowingly made a false statement on the stand. A
diagram in the medical records clearly shows two holes in Jackson’s buttock
– one where the bullet entered and one where it exited. It is likely that
Jackson was referring to these two holes when he referred to his two
wounds. This fact indicates that there was some confusion as to what was
meant by “wounds” in the testimony. Confused or mistaken testimony is not
perjury. See Timberlake v. State, 690 N.E.2d 243, 253 (Ind. 1997) (“While
the knowing use of perjured testimony may constitute prosecutorial
misconduct, contradictory or inconsistent testimony by a witness does not
constitute perjury.”), cert. denied, 525 U.S. 1073 (1999); Dunnuck v.
State, 644 N.E.2d 1275, 1280 (Ind. Ct. App. 1994) (“Confusion and
inconsistencies are insufficient to prove perjury.”), transfer denied. In
any event, Carter has not shown that Jackson’s statement was false or that
he knew of the falsity to the level of proof that would entitle us to upset
the determination of the post-conviction court. See, e.g., Ben-Yisrayl v.
State, 729 N.E.2d 102, 106 (Ind. 2000) (“Such a petitioner must show that
the evidence, taken as a whole, ‘leads unerringly and unmistakably to a
conclusion opposite to that reached by the trial court.’”) (quoting
Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993)).[5]
C
The last issue remaining in Carter’s post-conviction petition is his
claim of ineffective assistance of counsel. “To prevail on a claim of
ineffective assistance of counsel, a defendant must show that (i) defense
counsel’s representation fell below an objective standard of reasonableness
and (ii) there is a reasonable probability that the result of the
proceeding would have been different but for defense counsel’s inadequate
representation. We presume that counsel’s performance was adequate.”
Troutman v. State, 730 N.E.2d 149, 154 (Ind. 2000) (citations omitted).
See generally Strickland v. Washington, 466 U.S. 668 (1984).
Carter first argues that his trial counsel was ineffective for failing
to call several witnesses who would have testified that Carter did not have
or fire a gun on the night of the shooting. The post-conviction court
found that trial counsel did not call these witnesses because Carter had
told trial counsel that he in fact did fire a gun that night.[6] Trial
counsel testified that he wanted to avoid putting on perjured testimony.[7]
Carter contends that he never told trial counsel that he was the shooter.
However, the post-conviction court found trial counsel to be credible on
this point.
Second, Carter claims that trial counsel was ineffective for failing
to impeach Jackson with his statement to the police describing the shooter
as wearing glasses. While trial counsel could have conceivably impeached
Jackson’s identification of Carter (who did not wear glasses) with this
previous statement, the failure to do so does not raise a “reasonable
probability that the result of the proceeding would have been different.”
Troutman, 730 N.E.2d at 154. As the State pointed out in its brief, even
if Jackson was impeached as to his identification of Carter as the shooter,
three other witnesses identified Carter. Moreover, trial counsel did
subject Jackson to a vigorous cross-examination as to Jackson’s
identification of Carter and to his memory of the incident.
Third, Carter complains that trial counsel did not take measures to
reduce the possible prejudice from a photo array introduced by the State.
He claims that this array suggested he had a prior criminal record.
However, we agree with the post-conviction court that there is no
likelihood that the result of Carter’s trial would be any different if the
array had been more limited. The photos were apparently used when the
dancer who argued with Carter identified him to the police. As such, the
only information they communicate is that Carter had been arrested by
police – which would be obvious to the jury from his status as a criminal
defendant – and that the dancer identified him – which was independently
established through her own trial testimony.
Fourth, Carter claims that trial counsel was ineffective for not
moving for a mistrial when the court refused to dismiss a juror who heard
possibly prejudicial comments from another juror. During trial, Juror Tyler
noticed a neighbor in the audience whom she surmised was there to support
Carter. She felt intimidated by this apparent connection to Carter and was
excused from service by the court. She also told the court that she had
mentioned this connection to another juror, Juror Mills. Juror Mills told
the court that she could remain impartial and the court refused to excuse
her. Carter claims that trial counsel should have moved for a mistrial.
We agree with the post-conviction court that his failure to do so was not
ineffective assistance of counsel. The juror told the court that she would
remain impartial and the court admonished her that the audience member was
not, in fact, in any way tied to Carter. We find no evidence to suggest
that the juror did not properly carry out her duties.
Fifth, Carter claims that trial counsel should not have agreed to a
procedure that allowed the jury to view the trial exhibits in the courtroom
during deliberations with the court reporter – but not the defendant –
present.[8] First, even if Carter had a right to be present during the
view of the exhibits, trial counsel offered a very strong strategic reason
for waiving that right – Carter’s intoxication. The record shows that
Carter (who had been released on bail) became belligerent after the verdict
was delivered and the trial judge believed that he was intoxicated. Trial
counsel himself later testified that Carter was intoxicated. An
intoxicated Carter would have been of little use during the jury view of
the exhibits and he likely would have hurt his cause. Second, Carter
argues that his counsel should have objected to the court reporter’s
presence. Nothing in the record indicates that the court reporter
communicated with the jury and we find no basis for concluding that the
mere presence of a court official during the view of the exhibits could
have prejudiced Carter in any way.
Sixth, Carter claims that trial counsel was wrong to ask his own
witness about an otherwise inadmissible drug-related arrest. However,
Counsel is afforded considerable discretion in choosing strategy and
tactics, and we will accord that decision deference. . . . 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. Furthermore, isolated
mistakes, poor strategy, inexperience, and instances of bad judgment
do not necessarily render representation ineffective.
State v. Holmes, 728 N.E.2d 164, 172 (Ind. 2000). Trial counsel made a
strategic decision to disclose this arrest in order to impress upon the
jurors that Carter was being as open as possible with them. We cannot say
that this was an impermissible trial tactic when so much of this case
rested on which witnesses the jurors felt were telling the truth.
Seventh, Carter claims he was prejudiced by a misstatement trial
counsel made during his closing argument. Specifically, trial counsel said
that “Mr. Carter says he just held it just like that.” (R. at 835.)
(emphasis added). Carter never testified at trial, but Jackson did testify
as to how Carter held the gun. This slip of the tongue did not deprive
Carter of his constitutional right to effective assistance of counsel. The
jury knew that Carter did not testify, and could piece together trial
counsel’s error from the fact that Jackson had testified as to how the gun
was held. Moreover, the context of the statement also reduced its
prejudicial effect. Immediately after making his slip, trial counsel said:
“These people are covering up. Mr. Jackson, Michael Jackson [is] covering
up . . . .” (R. at 835.) (emphasis added). This immediate reference to
Jackson linked the earlier slip to Jackson’s testimony and should have made
clear to the jury that trial counsel merely misspoke.
Eighth, Carter claims that trial counsel was ineffective for not
objecting to three statements made by the prosecutor during closing
arguments. The propriety and prejudicial effect of these statements will
be discussed infra. It suffices to say here that trial counsel made a
tactical decision not to object to any of these statements. Again, counsel
is free to make reasonable strategic decisions. See Holmes, 728 N.E.2d at
172. It was reasonable for trial counsel to decide that objecting to these
comments in the prosecutor’s rebuttal argument would only agitate the jury
when it was so close to getting the case.
Ninth, Carter claims his counsel was ineffective for failing to
discover Jackson’s medical records prior to trial. As discussed supra,
these records would not have altered the verdict at trial.
We affirm the post-conviction court’s findings that none of these
nine specific situations, either individually or cumulatively, deprived
Carter of his constitutional right to the effective assistance of counsel.
II
There remain three issues from Carter’s direct appeal that were not
resolved in the review of his post-conviction proceedings.
A
As previously mentioned, Carter argues that three statements in the
prosecutor’s closing argument amounted to prosecutorial misconduct.[9]
First, he contends that the prosecutor improperly invoked sympathy for the
victim: “But you look Boo Tarvin in the face, too, and you tell him your
four buddies or the four people that the State called were all a bunch of
liars.” (R. at 845.) Second, Carter maintains that the prosecutor
impermissibly commented on the defense attorney’s function: “Defense
attorneys get paid to confuse. And make you so confused and then stand up
at the end and yell reasonable doubt, reasonable doubt.” (R. at 840.)
Finally, Carter claims the prosecutor referred to matters outside the
record when he said:
Ladies and gentlemen, I could have brought you forty witnesses but
they would have been like everybody else. These people are in here.
They’re drunk. They had no idea what’s going on. They’re watching the
dancers on the stage ‘cause that’s what they came in there to do.
There’s always arguments in there. They’re not paying attention.
They’re in there to enjoy their selves. Could have brought you forty
of those witnesses.
(R. at 847-48.)
Carter did not object to any of these comments during the trial and
therefore any error is waived. See Ind. Rule of Ev. 103(a); see also
Charlton v. State, 702 N.E.2d 1045, 1051 (Ind. 1998) (“Ordinarily, a
failure to object would cause [prosecutorial misconduct during closing
argument] to be waived.”); Wiggins v. State, 727 N.E.2d 1, 10 (Ind. Ct.
App. 2000) (“Before we will consider a claim of prosecutorial misconduct,
the defendant must have made timely objection to alleged misconduct at
trial to secure an issue for review, and failure to so object waives the
issue.”), transfer denied.
Once waived, an issue will warrant reversal only if it amounts to
fundamental error. See Borders v. State, 688 N.E.2d 874, 882 (Ind.1997).
“Fundamental error is a substantial blatant violation of basic principles
rendering the trial unfair to the defendant and, thereby, depriving the
defendant of fundamental due process. The error must be so prejudicial to
the rights of a defendant as to make a fair trial impossible.” Charlton,
702 N.E.2d at 1051 (citations omitted). See also Mitchell v. State, 726
N.E.2d 1228, 1236 (Ind. 2000) (“The fundamental error exception is
extremely narrow.”).
Even assuming the first two statements in the prosecutor’s closing
amount to misconduct, the harm done to Carter does not rise to the level of
fundamental error. Several Indiana cases have rejected fundamental error
claims with respect to closing arguments more extreme than those made this
case. See, e.g., Charlton, 702 N.E.2d at 1051; Etienne v. State, 716
N.E.2d 457, 461-62 (Ind. 1999); Roach v. State, 695 N.E.2d 934, 942-43
(Ind. 1998); Robinson v. State, 693 N.E.2d 548, 551-52 (Ind. 1998); and
Turnbow v. State, 637 N.E.2d 1329, 1333 (Ind. Ct. App. 1994). The same
conclusion holds here.
As for the third contested statement, Carter claims that the trial
court committed fundamental error by allowing the prosecutor to refer to
witnesses he did not call. We reject this contention. Reading the
statement in context, it is clear that the comment is a reply to a comment
in the defense counsel’s closing argument: “[T]he State could have called
as many witnesses as they wanted to testify . . . but how many did they
bring in and who did they bring in?” (R. at 823.) The prosecutor’s
statement is clearly aimed at rebutting this attack and explaining that any
other possible witnesses would bring little to the case.
B
Carter next argues that the trial court committed fundamental error by
allowing the court reporter to be present when the jury viewed the exhibits
in the courtroom during deliberations. There is simply no authority that
makes the procedure the trial judge followed error, let alone fundamental
error.
C
Finally, Carter contends that there is insufficient evidence to
support the enhancement of his sentence based on his habitual offender
status. Specifically, he claims the State failed to prove one of his prior
felonies. We reject this claim. The disputed previous conviction arises
from a four-count information filed against Carter on July 13, 1987.
Carter was later sentenced on a “Count Five” despite the fact that the
original information only contained four counts.[10] Carter argues that
because there is no evidence of a Count Five ever being filed, he could not
possibly be convicted on that count. However, no matter what the
information says, Carter was in fact sentenced to two years for “Count
Five.” The habitual offender statute does not contemplate enhancement of a
penalty for the mere charge of a felony, but looks for an actual
conviction. See Ind. Code § 35-50-2-8 (“The state may seek to have a
person sentenced as a habitual offender for any felony by alleging, on a
page separate from the rest of the charging instrument, that the person has
accumulated two (2) prior unrelated felony convictions.”) (emphasis added).
Here the State has shown that at the very least, Carter was sentenced to
two years in prison, which qualifies as a felony sentence. See id. § 35-50-
2-1(b) (“As used in this chapter, ‘felony conviction’ means a conviction,
in any jurisdiction at any time, with respect to which the convicted person
might have been imprisoned for more than one (1) year.”) There was
sufficient evidence of a prior unrelated felony conviction.
Conclusion
We affirm both the decision of the post-conviction court and the
conviction and sentence in the original trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Jackson denied at trial ever attempting to draw a gun.
[2] Dr. Pless refused to characterize his testimony as an “opinion”
but deemed it instead a “good guess” or a “theory.” (R.P-C.R. at 714-15.)
[3] Even Dr. Pless conceded that Jackson’s wound could have been
suffered during a jump over the bar, as Jackson would have been in the
right position at the time. It is also worthy of note that neither party
presented any evidence of the type of burn that is typical of the sort of
close-range gunshot that Carter suggests occurred. The only evidence on
point is Dr. Pless’s testimony that “the range of fire is something I can’t
give an opinion on because there’s no evidence of any close range.” (R.P-
C.R. at 716.) (emphasis added).
[4] While we need not reach this issue, it should also be noted that
Carter has failed to show any prejudice from this purported perjury, let
alone the “grave peril” necessary to overturn a conviction for alleged
prosecutorial misconduct. See Dobbins v. State 721 N.E.2d 867, 874 (Ind.
1999) (“When evaluating a prosecutorial misconduct claim, we must first
determine whether the prosecutor engaged in misconduct and then determine
whether the misconduct placed the defendant in a position of grave peril so
as to have a probable persuasive effect on the jury’s decision.”); see also
Paschall v. State, 717 N.E.2d 1273, 1276 (Ind. Ct. App. 1999) (upholding
conviction in face of prosecutorial misconduct despite use of allegedly
perjured testimony).
[5] Carter has also failed to show that the prosecutor knew that the
testimony was false, especially since, as we noted supra, the prosecutor
did not even have possession of these records at the time of trial. See
Wallace v. State, 474 N.E.2d 1006, 1008 (Ind. 1985) (“The knowing use of
perjured testimony is fundamentally unfair and a conviction obtained by the
use of such testimony will not be upheld. A conviction obtained through the
use of false testimony must fall where the State, knowing the testimony to
be false, either solicits such testimony or allows it to go uncorrected
when it appears.”) (citations omitted) (emphasis added); see also
Timberlake v. State, 690 N.E.2d 243, 253 (Ind. 1997), cert. denied, 525
U.S. 1073 (1999).
[6] Carter sought to have trial counsel’s testimony excluded from the
post-conviction court on the basis of the attorney-client privilege and now
asks us to ignore the testimony as well. However, as the post-conviction
court correctly noted, a defendant waives the attorney-client privilege
when he files a petition for post-conviction relief on the grounds of
ineffective assistance of counsel. “When the professional integrity of an
attorney is attacked by a client, that attorney has a right to defend his
conduct as counsel.” Logston v. State, 266 Ind. 395, 399, 363 N.E.2d 975,
977 (Ind. 1977) (citations omitted) (upholding conviction on post-
conviction review). The waiver holds even though trial counsel allegedly
spoke with a prosecutor prior to his testimony, as Carter had filed his
petition by that point and his privilege was therefore already waived.
[7] Moreover, trial counsel presented strategic reasons for not
calling many of these same witnesses, finding most of them to not be
credible. The post-conviction court found trial counsel’s explanation to be
credible.
[8] This procedure will also be discussed infra.
[9] To prove prosecutorial misconduct, a defendant must show that “the
prosecutor in fact engaged in misconduct” and then demonstrate that “the
misconduct, under all the circumstances, ‘placed [the defendant] in a
position of grave peril to which he should not have been subjected.’”
Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 848 (Ind. 1976)
(citations omitted). See also Reid v. State, 719 N.E.2d 451, 458 (Ind. Ct.
App. 1999) (“When we review claims of prosecutorial misconduct, we consider
first whether the prosecutor committed misconduct and second, whether the
alleged misconduct placed the defendant in grave peril.”), cert. denied,
2000 WL 1337244 (Nov. 13, 2000).
[10] One of the original four counts was later subdivided into two
parts. The prosecutor argued during the habitual offender phase that the
trial court’s computer system could not register the subdivided count and
treated each division as a separate count. Count Four – a felony criminal
recklessness charge - then became Count Five.