ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Anne-Marie Alward Christopher L. Lafuse
Deputy Public Defender Deputy Attorney General
Indianapolis, IN Indianapolis, IN
IN THE
SUPREME COURT OF INDIANA
BRIAN K. MCCARY, )
)
Appellant (Defendant Below), ) No. 49S02-0105-PC-00240
) In the Supreme Court
v. )
) No. 49A02-0004-PC-226
STATE OF INDIANA, ) In the Court of Appeals
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patricia J. Gifford, Judge
Cause No. 49G04-9309-CF-121825
January 18, 2002
SHEPARD, Chief Justice.
Appellant Brian McCary, who is serving a forty-year sentence
for attempting to kill a police officer, asks for a new trial. He contends
that his trial counsel was ineffective, but that question has already been
litigated and is res judicata against him. His claim that his appellate
counsel was ineffective is without merit. We affirm the denial of post-
conviction relief.
Facts and Procedural History
On the evening of September 20, 1993, Indianapolis Police Department
Officer Anthony Finnell was told at roll call to be on the lookout for a
particular blue and white Oldsmobile. As he began patrolling, Officer
Finnell spotted the car parked at a convenience store in the vicinity of
East 30th Street and North Sherman Drive. He watched as McCary and Antonio
Williams entered the car and drove away.
After following them for a short distance, Officer Finnell pulled the
vehicle over. McCary jumped from the car while it was still moving and ran
off. Finnell called for backup and began to handcuff Williams.
Finnell then heard gunshots coming from the spot where he had last
seen McCary. He dropped behind the Oldsmobile for protection, pulling
Williams down as well. After six shots were fired, Finnell drew his gun
and looked over the car. A man with a similar build and clothing to
McCary’s looked at Finnell and fled.
McCary ran to a nearby friend’s house. There, McCary said that he
had been followed by police, leapt from his car, and exchanged gunfire
after the police fired first.
The police apprehended McCary as he left the friend’s house in a
speeding car. McCary lied about his identity, but Williams was brought to
the arrest scene and positively identified McCary as the driver of the
Oldsmobile. Later that night at the police station, McCary told Officer
Finnell, “I wasn’t trying to hurt you.” (T.R. at 229.)
A jury found McCary guilty of attempted murder, a class A felony;[1]
resisting law enforcement, a class D felony;[2] and carrying an unlicensed
handgun, a class A misdemeanor.[3] The court sentenced him to concurrent
terms, with forty years on the lead charge.
McCary raised three claims on direct appeal, including ineffective
assistance of trial counsel. McCary v. State, No. 49A02-9412-CR-751,
memo. op. at 2 (Ind. Ct. App. Nov. 6, 1995). The Court of Appeals affirmed
the conviction.
In his post-conviction challenge, McCary focuses on ineffective
assistance of trial and appellate counsel. (Appellant’s Br. at 11-12.)
The post-conviction court rejected both claims. The Court of Appeals held
for McCary on both and reversed. McCary v. State, 739 N.E.2d 193, 201
(Ind. Ct. App. 2000). We granted transfer, and now affirm the post-
conviction court.
Post-Conviction Standard of Review
A post-conviction procedure is not an opportunity for a “super-
appeal.” Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind. 2000), cert.
denied, 122 S. Ct. 73 (2001). A petitioner who has been denied post-
conviction relief appeals from a negative judgment, and he must convince
the appellate court that the evidence as a whole leads unerringly and
unmistakably to a decision opposite that reached by the post-conviction
court. Prowell v. State, 741 N.E.2d 704 (Ind. 2001). In other words,
“[t]his Court will disturb a post-conviction court’s decision as being
contrary to law only where the evidence is without conflict and leads to
but one conclusion, and the post-conviction court has reached the opposite
conclusion.” Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert.
denied, 528 U.S. 1083 (2000) (citations omitted).
The High Hurdle for Ineffective Assistance Claims
A claim of ineffective assistance of counsel must satisfy two
components. Strickland v. Washington, 466 U.S. 668 (1984); accord Williams
v. Taylor, 529 U.S. 362, 390-91 (2000). First, the defendant must show
deficient performance: representation that fell below an objective standard
of reasonableness, committing errors so serious that the defendant did not
have the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88.
Second, the defendant must show prejudice: a reasonable probability (i.e.
a probability sufficient to undermine confidence in the outcome) that, but
for counsel’s errors, the result of the proceeding would have been
different. Id. at 694.
Few points of law are as clearly established as the principle that
“[t]actical or strategic decisions will not support a claim of ineffective
assistance.” Sparks v. State, 499 N.E.2d 738, 739 (Ind. 1986). We afford
great deference to counsel’s discretion to choose strategy and tactics, and
strongly presume that counsel provided adequate assistance and exercised
reasonable professional judgment in all significant decisions. See
Strickland, 466 U.S. at 689-90.
Even the best and brightest criminal defense attorneys may disagree
on ideal strategy or the most effective approach in any given case. Id. at
689. Furthermore, “[i]solated mistakes, poor strategy, inexperience, and
instances of bad judgment do not necessarily render representation
ineffective.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citing
Bieghler v. State, 690 N.E.2d 188, 199 (Ind. 1997), cert. denied, 525 U.S.
1021 (1998)).
Effectiveness of Trial Counsel
McCary argued on direct appeal that his trial counsel was
constitutionally ineffective. McCary, memo. op. at 6. His argument
failed. Id. at 11. He raises this same issue again in his petition for
post-conviction relief. (Appellant’s Br. at 1.)
It has long been the rule that a defendant who raises a claim of
ineffective assistance of trial counsel on direct appeal is foreclosed from
subsequently relitigating that claim. Woods v. State, 701 N.E.2d 1208,
1220 (Ind. 1998), cert. denied, 528 U.S. 861 (1999). See also Sawyer v.
State, 679 N.E.2d 1328, 1329 (Ind. 1997)(“[The defendant], having once
litigated his Sixth Amendment claim concerning ineffective assistance of
counsel, is not entitled to litigate it again, by alleging different
grounds.”); Morris v. State, 466 N.E.2d 13, 14 (Ind. 1984)(“Notwithstanding
the fact that petitioner gave several additional examples of his counsel’s
alleged ineffectiveness during the post-conviction hearing, a consideration
of the ineffectiveness issue would constitute review of an issue already
decided on direct appeal.”).
McCary’s claim of ineffective assistance of trial counsel is res
judicata.
II. Effectiveness of Appellate Counsel
McCary next asserts that his appellate counsel was ineffective for
raising the issue of ineffective assistance of trial counsel on direct
appeal. McCary’s trial counsel did not call Officer Tracey Murphy as a
witness. (T.R. at iii-vii.) McCary asserts that his appellate counsel’s
failure to “develop[] a record to show what the officer would have
testified to . . . doom[ed] the claim to failure and depriv[ed] McCary of
an effective appeal.” (Appellant’s Br. at 11-12.)
This argument stems from the probable cause affidavit, which was
available to both trial and appellate counsel. It stated that Officer
Murphy, who was at home and off duty, heard shots and chased but then lost
“the suspect.” (T.R. at 21.) McCary’s defense was that he did indeed flee
the police, but did not shoot. (P-C.R. at 255-64.)
McCary’s appellate lawyer suggested that the man Officer Murphy saw
was most likely Aaron Blanche, whom the defense had portrayed at trial as
the probable shooter. (P-C.R. at 208-09, 259, 261.) The Court of Appeals
rejected this argument as speculative, though it turned out to be
correct.[4]
In Timberlake, 753 N.E.2d at 604, we described the burden a party
must establish for a claim of this type:
When the claim of ineffective assistance is directed at appellate
counsel for failing fully and properly to raise and support a claim of
ineffective assistance of trial counsel, a defendant faces a compound
burden on postconviction. The postconviction court must conclude that
appellate counsel’s performance was deficient and that, but for the
deficiency of appellate counsel, trial counsel’s performance would
have been found deficient and prejudicial. Thus, Timberlake’s burden
before the postconviction court was to establish the two elements of
ineffective assistance of counsel separately as to both trial and
appellate counsel.
Id. (citing Ben-Yisrayl v. State, 738 N.E.2d 253, 261-62 (Ind. 2000)).
Of course, we review appellate counsel’s effort in its totality when
considering whether a defendant received constitutionally adequate
assistance. Bieghler, 690 N.E.2d at 194. The forty-three-page brief filed
for McCary’s appeal raised three major issues: sufficiency of the
evidence, improper communication between the court and jury in McCary’s
absence, and ineffective assistance of counsel. (P-C.R. at 172-214.)
Under the heading of ineffective assistance, appellate counsel argued
that trial counsel was deficient in three respects: by (1) failing to
conduct an adequate investigation, (2) failing to interview and call
certain witnesses, and (3) failing to respond properly to the
communications between the court and jury during jury deliberations. (P-
C.R. at 286.) Appellate counsel also argued that another attorney
specially appointed to represent McCary during a hearing on a pro se motion
to correct error was ineffective.[5] (P-C.R. at 205, 289.)
The heart of McCary’s claim about his appellate lawyer is that
counsel should not have raised the issue of trial counsel’s ineffective
assistance during the direct appeal because insufficient facts were
available about Officer Murphy to make the claim. The brief from that
appeal, however, contradicts this argument:
Consideration of the affidavit for probable cause yields further
concern with regard to witnesses who were not summoned. The affidavit
states that an Officer Murphy who lives in the area heard the shots,
came out of his home, and gave chase to “the suspect”, losing him in
the “area of 2800 North Gale.” We know from McCary, Castle and Tamara
Johnson that her address was 3053 North Olney – north of 30th Street.
We also know that McCary’s flight began in the alley east of Sherman
and just a few doors south of 30th Street, technically in the 2900
block. We also know that Aaron Blanche had been in the area, had a
gun and turned up; shortly after the shooting, at LaToya Harrison’s
house at 2835 North Gale near the middle of the block where Officer
Murphy was said to have lost the suspect he was chasing – the area of
2800 Gale near 28th and Gale. The result of this analysis is the
question “Why didn’t Murphy testify?” His testimony, it would seem,
would have made clear, when taken with other evidence that was heard
by the jury, that it was improbable that the person Murphy saw was
McCary and, at the same time, more probable than not that the person
was Aaron Blanche, a man we know had a gun.
On the record available here, we cannot know why Murphy did not
testify nor why the matter was not raised on cross of the police
witnesses with knowledge of this case.
(Appellant’s Br. at 6-7) (internal citations omitted). McCary’s appellate
lawyer thus had a fair amount of evidence available on Murphy’s encounter.
The record also demonstrated to McCary’s appellate lawyer the
considerable effort trial counsel made in pointing to Blanche as the
perpetrator. For instance, the defense called Latoya Harrison, who lived
near the site of the attempted murder. (T.R. at 424.) She testified that
Blanche arrived on her doorstep that night, scared and covered with burrs
as if he had just run through bushes or a field. (T.R. at 425-26.)
Blanche used Harrison’s telephone twice, and Blanche gave Harrison’s friend
a handgun to keep for him until he picked it up early the following
morning. (T.R. at 426-29.)
Thus, the only fact about Officer Murphy that was not available when
the appellate lawyer chose to argue trial counsel’s ineffective assistance
was Officer Murphy’s confirmation during the post-conviction proceedings
that it was Blanche whom he had seen. This was, of course, a concrete
piece of additional information. But even McCary’s trial counsel,
testifying with the benefit of hindsight during the post-conviction
proceeding, thought it had so little probative value that he might not have
called Officer Murphy even if he had known it was Blanche Officer Murphy
had seen. [6]
The post-conviction court found that appellate counsel’s performance
did not deprive McCary of effective assistance of counsel on direct appeal.
The facts in this record do not point unerringly to the opposite
conclusion, the standard required for relief.
Conclusion
We affirm the denial of post-conviction relief.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Ind. Code Ann. §§ 35-41-5-1, 35-42-1-1 (1998).
[2] Ind. Code Ann. § 35-44-3-3(b)(1) (West 1998).
[3] Ind. Code Ann. § 35-47-2-23(c) (West 1998).
[4] The Court of Appeals said:
McCary has failed to set forth the prospective results of a more
thorough investigation. McCary speculates as to what certain
witnesses may have said if they had been interviewed and acknowledges
that “[p]erhaps trial counsel interviewed these witnesses and found
nothing, so elected not to explore the matter, but perhaps he did not.
On the record available here, we cannot know.” Having failed to
demonstrate what a more thorough investigation would have revealed,
McCary has failed to establish that he suffered prejudice as a result
of the allegedly inadequate investigation, and his claim of
ineffective assistance of counsel in this regard is without merit.
McCary contends that trial counsel rendered ineffective assistance in
failing to call certain witnesses at trial. Beyond mere speculation,
McCary has not set forth favorable testimony that would have been
elicited from persons who were not called as witnesses. Therefore, as
with the first allegation of ineffective assistance, McCary has not
demonstrated that he was prejudiced by the charged defects.
McCary, memo. op. at 7 (internal citations omitted). At the post-
conviction proceeding, Officer Murphy verified that the man he saw with a
gun that night was, indeed, Blanche. (P-C.R. at 141, 144, 153.)
[5] In the motion, McCary claimed that the prosecution should have
disclosed the results of a police-administered gunshot residue test, but
the only evidence of such a test was McCary’s own word, which was not
enough. (P-C.R. at 205, 289.)
[6] McCary’s trial attorney testified at the post-conviction proceeding as
follows:
Q. Did you interview Officer Murphy?
A. No.
Q. Had you discovered that Officer Murphy had seen a suspect coming
from the field in the alley with a gun and that he could identify
that person and that that person wasn’t McCary, is it fair to say
you would have called him as a defense witness?
A. Not necessarily.
Q. Would you explain your answer?
A. Why? It’s 30th and Sherman and a guy was found with a gun only in
the general area. I mean, how many guns do you think are there in
that area. I don’t know that there’s much connection.
Q. Okay. Had you known that Officer Murphy could identify Mr. Blanche
as the individual that he saw in the alley, would that change your
answer?
A. Well I think [McCary] testified that th[ere] might have been a guy
who had a gun in the area and so we presented it that way.
Q. Yes. So is it fair to say that if your client’s position it’s not
me, it’s Mr. Blanche and you have a police officer who’s willing to
say he saw Mr. Blanche with a gun running from the field in the
alley matching the description, are you telling this Judge that you
would not have called Officer Murphy as a defense witness?
A. I’m saying it didn’t make that much difference.
Q. Pardon me.
A. I’m saying it didn’t make that much difference.
[MCCARY’S ATTORNEY]: Okay. That’s all I have.
CROSS-EXAMINATION, QUESTIONS BY [STATE]:
Q. Mr. Rose, that last answer suggests to me -- please correct me if
I’m wrong, that you concluded as a matter of strategy or tactics
that there was no solid value in pursuing Officer Murphy as a
witness?
A. Not particularly.
Q. Is it a fair statement that you assessed his value as simply one
who could say he saw some other individual with a gun in the same
general geographic area as the incident your client was charged
with?
A. That’s right.
Q. You did make argument on that matter and bring light to that matter
at trial in this cause, did you not?
A. Yeah.
(P-C.R. at 160-62.) Even knowing that Murphy had seen Blanche did not
impress McCary’s trial counsel.