Attorney for Appellant
Sean P. Hilgendorf
South Bend, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
MICHAEL TROUTMAN,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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) Supreme Court No.
) 71S00-9807-CR-394
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)
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APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Sanford M. Brook, Judge
Cause No. 71D02-9708-CF-354
ON DIRECT APPEAL
May 8, 2000
SULLIVAN, Justice.
Defendant Michael Troutman was convicted of killing an elderly woman
after he broke into her home. He appeals, claiming that the trial court
incorrectly denied his request to delay his trial, that there was
insufficient evidence to convict him, and that he was denied his
constitutional right to effective assistance of counsel. Finding the
court’s ruling proper, evidence sufficient, and counsel not ineffective, we
affirm.
We have jurisdiction over this direct appeal because the sentence
exceeds 50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4 (A)(7).
Background
The facts most favorable to the verdict reveal that on the evening of
August 4, 1997, Defendant Michael Troutman forced his way into the home of
Barbara Otolski and attacked her as she sat in her living room. Defendant
then forced Otolski into the basement and bludgeoned her to death with a
pistol.
On June 11, 1998, a jury found Defendant guilty of Murder.[1] The
trial court imposed a 65-year sentence.
We will recite additional facts as needed.
I
Defendant contends that the trial court committed reversible error by
denying his motion for a continuance prior to the start of trial.
Specifically, he claims the trial court abused its discretion in this
regard because “there was outstanding discovery, . . . further
investigations as to recently disclosed discovery items and witnesses
needed to be done in order to properly prepare a defense, and . . . there
was an outstanding request for funds to hire an expert witness in
forensics.” Appellant’s Br. at 10 (citing R. at 87-88).
Indiana Code § 35-36-7-1 (1993) provides for a continuance upon a
proper showing of an absence of evidence or the illness or absence of the
defendant or a witness. Rulings on non-statutory motions for continuance
lie within the sound discretion of the trial court and will be reversed
only for an abuse of that discretion and resultant prejudice. See Chinn v.
State, 511 N.E.2d 1000, 1003 (Ind. 1987) (citing Brown v. State, 448 N.E.2d
10 (Ind. 1983)), reh’g denied; see also Little v. State, 501 N.E.2d 447,
449 (Ind. 1986). As we will demonstrate infra, Defendant’s motion in this
case is of the second type.
Defendant filed his motion for continuance on May 27, 1998, twelve
days before the start of trial. The trial court held a hearing on the
matter the next day to determine whether Defendant was entitled to a third
continuance.[2] Among the requests the trial court considered were that
Defendant needed additional time: (1) to hire a forensic expert to analyze
a sample of a palm print taken from the victim’s home phone and fingerprint
samples taken from the victim’s dryer;[3] (2) to analyze copies of shoe
print samples; and (3) for the defense investigator to complete her ongoing
investigation. Additionally, Defendant complained that: (4) he did not
receive a final State witness list to include criminal history checks on
its civilian witnesses; and (5) the State had destroyed his hand-written
statement. We will review the trial court’s rulings on each point in turn.
In considering the request for a forensic expert, the trial judge
noted that Defendant had been provided ample opportunity to analyze both
the palm print information, which had been provided to the defense in
September of 1997, and the fingerprint information, which had been provided
in February of 1998. While the trial judge refused to grant a continuance,
he did grant Defendant’s request for funds to hire an expert witness after
defense counsel acknowledged that he had “two people narrowed down” to
serve as experts, and with the trial nearly two weeks away, he felt that he
“could have enough time to get the samples and to get someone to look over
[them].” We observe that Defendant did not renew his motion for a
continuance before trial.
With regard to the shoe print samples, the trial court heard testimony
from the prosecuting attorney that the samples had “always been available
to the defense for inspection,” except when they were being analyzed at the
crime laboratory. Moreover, there had “not been a request for [the
samples] specifically, prior to” the continuance hearing. During the
hearing, defense counsel did not object to, respond to, or otherwise
contradict these statements.
Defendant also claimed that his “investigator [was] not done with her
investigation, because there [were] still certain things that she [was]
looking into[, . . . specifically, the n]ames of other potential
witnesses.” (R. at 195.) The State responded that with twelve days left
until trial, it had “not prepared a final list of witnesses that [it was]
absolutely certain that [it was] going to use,” but that it had “provided
notice of potential witnesses in discovery, [and thus it] would be limited
to those.” (R. at 201.) Defendant has not directed us to a specific State
witness whose testimony prejudiced him because he was unable to prepare for
his or her cross-examination or was otherwise surprised by the witness’s
appearance.[4]
Finally, the trial court considered Defendant’s allegation that the
State had destroyed his handwritten statement or failed to provide him a
copy thereof. The record is not exactly clear on this issue, but it
appears as though Defendant was arrested in a separate robbery incident,
during which a K-9 police dog bit him. The State contended that during the
course of a stationhouse videotaped interview of Defendant, he wrote some
notes “about the police dog bit[e]”; when he incidentally wiped his blood
on the note, a pencil, and a rag, the police were required to destroy these
materials “as biohazard.” The prosecutor went on to state that this
evidence was not material in that the note “contained no statements
relevant to this or any other case, admissions or denials or otherwise.”
Defendant’s position was that he wrote that “he wanted an attorney, or
something to that effect . . . [e]ven though there [was] a signed waiver
stating the opposite.” (R. at 208.) In any event, the State made no
attempt to introduce the videotaped statement at trial, and Defendant
provides no explanation as to how a continuance (i.e., additional time)
would have provided him an opportunity to retrieve the alleged evidence
that the State acknowledged no longer existed. Appellant’s Br. at 16-17.
In sum, we find that the trial court “consider[ed] the totality of the
circumstances in determining if there was sufficient time to prepare,”
Carter v. State, 686 N.E.2d 1254, 1261 (Ind. 1997), and gave “‘heed to the
diverse interests’” of the parties when it denied Defendant’s request for a
continuance, Flowers v. State, 654 N.E.2d 1124, 1125 (Ind. 1995) (quoting
Vaughn v. State, 590 N.E.2d 134, 135 (Ind. 1992)). The trial court
considered Defendant’s prior access to each piece of evidence and whether
the handwritten note was material evidence in this case; it then weighed
these considerations against the State’s potential inability to re-
coordinate the travel schedules of various state and federal expert
witnesses in the event of a continuance. (R. at 197-98.) Moreover,
Defendant has failed to demonstrate how the trial court’s ruling prejudiced
him. See Vance v. State, 640 N.E.2d 51, 55-56 (Ind. 1994). We find that
the trial court did not abuse its discretion in denying Defendant’s motion
for a continuance.
II
Defendant next contends that the evidence was insufficient to support
his conviction for murder. Specifically, he claims that there was
“insufficient evidence to prove that Troutman was the person who assaulted
and killed Otolski, or that Troutman was even present in Otolski’s
residence at the time of the assault and murder.” Appellant’s Br. at 20.
In reviewing a sufficiency of the evidence claim, we neither reweigh
the evidence nor assess the credibility of the witnesses. Garland v.
State, 719 N.E.2d 1236, 1238 (Ind. 1999), reh’g denied. Rather we look to
the evidence and reasonable inferences drawn therefrom that support the
verdict and will affirm the convictions if there is probative evidence from
which a reasonable jury could have found the defendant guilty beyond a
reasonable doubt. Brown v. State, 720 N.E.2d 1157, 1158 (Ind. 1999);
Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999). A conviction for murder
may be based solely on circumstantial evidence. Vehorn v. State, 717 N.E.2d
869, 875-76 (Ind. 1999). And on appeal, the circumstantial evidence need
not overcome every reasonable hypothesis of innocence. Id.
The evidence supports an inference that Defendant killed Otolski.
There was evidence of a forced entry. Footprints found outside the
victim’s home matched Defendant’s shoes. Shoes identified as having
previously belonged to Defendant were stained with the Otolski’s blood.
There was also evidence establishing Defendant’s presence in the Otolski’s
home: A BB pistol which Defendant admitted taking from his ex-girlfriend’s
home was found in the basement. The pistol was stained with Otolski’s blood
and also contained hair consistent with Otolski’s. Finally, Defendant’s
palm print was found on Otolski’s home phone and his fingerprints were
found on her dryer.
While the evidence presented by the State is circumstantial, after
considering all the evidence most favorable to the verdict as well as
drawing all reasonable inferences therefrom, we find the jury could have
reasonably concluded that Defendant broke in Otolski’s home and bludgeoned
her to death with the pistol.
III
Finally, Defendant contends that he received ineffective assistance of
counsel. Specifically, he claims that his counsel was ineffective in
“failing to make a timely request for an expert, and for failing to make a
timely review of the physical evidence in this case.” Appellant’s Br. at
24.
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. See Cook v. State, 675
N.E.2d 687, 692 (Ind. 1996) (citing Strickland v. Washington, 466 U.S. 668
(1984); Douglas v. State, 663 N.E.2d 1153, 1154 (Ind.1996)). We presume
that counsel’s performance was adequate. Id.; Butler v. State, 658 N.E.2d
72, 78 (Ind. 1995).
Defendant presents his ineffective assistance claim as an alternative
proposition to his request for a continuance, such that if defense “counsel
had sufficient time, prior to trial, to review the physical evidence
presented at trial . . . , then his failure to timely procure an expert
witness to rebut such evidence was both deficient and prejudicial.”
Appellant’s Br. at 23. We disagree.
A defense counsel’s poor trial strategy or bad tactics do not
necessarily amount to ineffective assistance of counsel. See Whitener v.
State, 696 N.E.2d 40, 42 (Ind. 1998) (citing Davis v. State, 675 N.E.2d
1097, 1100 (Ind. 1996)); Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998)
(identifying that “[a] decision regarding what witnesses to call is a
matter of trial strategy which an appellate court will not second-guess”).
In this case, we observe that the trial court first verified that
defense counsel was conferring with potential expert witnesses before it
granted Defendant’s pre-trial request for funds to hire a forensic expert.
And after reviewing the testimony of the State’s expert witnesses and
defense counsel’s adequate cross-examination, we can only conclude that
defense counsel’s ultimate decision not to present additional rebuttal
expert testimony was a matter of trial strategy. It is not unreasonable
for an experienced trial lawyer to refrain from presenting additional
evidence – in the form of rebuttal testimony – that may ultimately be
detrimental to his or her client.
Here, the State presented substantial expert testimony concerning
hair, palm print, fingerprint, footprint, and DNA evidence, involving
precise, physical measurements and in some cases, chemical testing.
Defendant has made no showing that the State’s experts were less than
precise or able in their testing and observations. Moreover, Defendant
does not challenge the accuracy of the State’s expert testimony nor point
to other evidence, which would have formed the basis for a defense expert
witness to challenge this testimony. We will not second-guess counsel’s
strategic decision to put the State to its burden, especially without a
showing of prejudice. See Rondon v. State, 711 N.E.2d 506, 518 (Ind. 1999)
(“At first blush, it would seem that a trial strategy consisting of nothing
more than putting the State to its burden is an improbable approach to a
defense, especially in a capital case. However, this is precisely the type
of decision that falls within the broad definition of trial strategy.”).
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, BOEHM and RUCKER, J.J., concur.
-----------------------
[1] Ind. Code § 35-42-1-1 (1993).
[2] Before making its ruling, the trial court noted that Defendant’s case
had twice been continued – once by Defendant himself and once by mutual
agreement of both parties.
[3] We disagree with Defendant’s position in this appeal that the trial
court abused its discretion in denying his request for a continuance
because his trial attorney had indicated that he “needed to hire a forensic
expert to review the DNA evidence which was only recently made available to
the defense.” Appellant’s Br. at 11-12.
While we note that Defendant himself voiced his independent concern at
the hearing about the DNA evidence that would be presented at trial, (R. at
217), our review of the hearing transcript indicates that the trial court
considered and rejected Defendant’s continuance based upon the defense’s
purported need for a forensic expert to review the palm and fingerprints:
[Court]: Let’s go through now the reasons once again for the
request for a continuance. One is that you wanted to
hire a forensic – what kind of expert?
[Defense Counsel]: Fingerprint and palm print, somebody to do an
analysis of that.
[Court]: Anything else?
[Defense Counsel]: Also, that expert we may have them review some
shoe print evidence and blood evidence as well. But
the primary focus that I’m looking at is the palm
prints that were found in the residence that
purportedly match.
* * *
(R. at 191-92.)
[4] In regard to Defendant’s complaint that he had not received criminal
history checks on two State civilian witnesses, the State admitted that it
was “obliged to provide criminal history to people” and that it would
“[a]bsolutely” provide this information to Defendant. (R. at 203.)