Legal Research AI

Wesley v. State

Court: Indiana Supreme Court
Date filed: 2003-05-30
Citations: 788 N.E.2d 1247
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ATTORNEYS FOR APPELLANT:                ATTORNEYS FOR APPELLEE:


SUSAN K. CARPENTER                      STEVE CARTER

Public Defender of Indiana                   Attorney General of Indiana


AMY E. KAROZOS                    JOSEPH A. SAMRETA

Deputy Public Defender                  Deputy Attorney General
Indianapolis, Indiana                   Indianapolis, Indiana







                                   IN THE


                          SUPREME COURT OF INDIANA



JOHN WESLEY, JR.,                       )
                                        )    Supreme Court Cause Number
      Appellant (Petitioner),                )     27S04-0201-PC-10
                                        )
            v.                          )
                                        )
STATE OF INDIANA,                       )    Court of Appeals Cause Number
                                        )    27A04-0012-PC-531
      Appellee (Respondent).            )


                     APPEAL FROM THE GRANT CIRCUIT COURT
               The Honorable Robert Barnet, Jr., Special Judge
                         Cause No.  27C01-9104-CF-12



             On Appeal from the Denial of Post-Conviction Relief



                                May 30, 2003

RUCKER, Justice
                                Case Summary
       After  a  trial  by  jury  John  Wesley  was  convicted  of  criminal
confinement, battery,  intimidation  and  resisting  law  enforcement.   The
charges  arose  out  of  an  altercation  between  Wesley  and  his  live-in
girlfriend Virginia Isom.  Wesley filed  a  successive  petition  for  post-
conviction  relief  in  which  he  alleged  that  his  trial   counsel   was
ineffective for failing to obtain and use Isom’s psychiatric  records.   The
post-conviction court denied Wesley relief.  On review the Court of  Appeals
reversed.  Having  previously granted transfer,  we  now  affirm  the  post-
conviction court.

                        Facts and Procedural History

      On April 9, 1991, residents  of  the  Johnson  Apartments  in  Marion,
Indiana heard fighting from the one-room apartment  shared  by  John  Wesley
and Virginia Isom.  Except for Wesley and Isom there  were  no  eyewitnesses
to the altercation.  However, neighbors in the apartment  building  heard  a
great deal of scuffling, loud banging noises, general cries  for  help,  and
shouts from Isom claiming “he’s going to  kill  me.”   R.  at  215.[1]   The
apartment manager called the police.  Prior to  police  arrival,  Isom  left
the apartment and locked herself in the communal bathroom at the end of  the
hallway.  When officers of the Marion Police Department arrived, Wesley  was
standing in the hallway.  After arguing with the  officers  and  threatening
one of the officers, Wesley was arrested.  Isom, bleeding from a cut to  her
head, told the officers that Wesley had beaten her.
      Wesley was ultimately charged with criminal  confinement;  battery  by
means of a deadly weapon; criminal  deviate  conduct;[2]  intimidation;  and
resisting law enforcement.  A jury trial was conducted on June 17-18,  1991.
 At trial, Wesley and Isom both testified that  there  was  a  skirmish  but
presented different accounts of exactly what happened in the course  of  the
altercation.  Isom said that at about 3:30-3:45 on the  afternoon  of  April
9, 1991, she heard a thumping noise on the apartment door.  She  opened  the
door and saw Wesley kneeling on the floor.  Isom believed Wesley  was  under
the influence of alcohol and/or  cocaine,  and  she  helped  him  into  bed.
Wesley then requested a plate of food, and as Isom  presented  the  food  to
him, Wesley knocked the plate out of her hand.  While Isom was  cleaning  up
the remains of the plate and food, Isom  suggested  that  the  two  of  them
attend counseling.  Wesley became enraged, kicked Isom, beat  her  with  his
hands, a lamp and a sawed-off shotgun, and pushed the barrel of  the  sawed-
off shotgun under Isom’s skirt.   Upon  hearing  a  noise  coming  from  the
stairway outside the apartment, Wesley allowed Isom to leave  the  apartment
and go to the bathroom at the end of the hallway.
      Wesley testified at trial that he had  spent  the  morning  and  early
afternoon hours of  April  9,  1991,  drinking  wine  and  socializing  with
friends.  He returned to the apartment sometime after three o’clock,  walked
in the door, and saw Isom cooking.  He then said that Isom  accused  him  of
infidelity and when his back was turned she came after him with a  “knife  .
. . or other object.”  Id. at 366.  Wesley reported grabbing  Isom’s  wrists
and throwing the object into the sink.  He apparently released the grasp  on
her wrists, but shortly thereafter Isom pushed  him,  which  caused  him  to
fall into the door of the apartment and  knock  the  lamp  from  its  table.
Wesley then grabbed Isom by her wrists again and the two  of  them  wrestled
on the bed.  He testified that at some point  during  the  scuffle  both  of
them fell off the bed and Isom hit her head on the  nightstand  and  on  the
shotgun, thus explaining the cut on her head.  As they were wrestling,  Isom
began yelling for help.  Wesley further explained that after  Isom  hit  her
head on the gun, she reached for it under the bed and that Wesley  struggled
to get the gun away from her.   He  testified  the  fight  ended  when  Isom
pushed him to the floor and retreated to the bathroom.
      The jury returned a guilty verdict on all four counts.[3]   On  direct
appeal, the Court of  Appeals  affirmed  the  convictions  in  a  memorandum
decision.  Wesley v. State, No. 27A02-9110-CR-474 (Ind.  Ct.  App.  May  18,
1992).  On August 20, 1992,  Wesley  filed  a  pro  se  petition  for  post-
conviction relief.  On November 18, 1992, the post-conviction court  entered
an order denying the petition and Wesley did  not  appeal.   Thereafter,  on
January 23,  1995,  the  Court  of  Appeals  authorized  Wesley  to  file  a
successive petition for post-conviction relief.  Ind.  Post-Conviction  Rule
1(12).  Wesley filed the petition on February 2, 1995, which he  amended  on
June  12,  2000.   Therein,  Wesley  alleged  that  his  trial  counsel  was
ineffective for failing  to  obtain  and  use  Isom’s  psychiatric  records.
Dating to 1980, the records reveal treatment Isom periodically received  for
psychiatric disorders.[4]
      After conducting a hearing, the post-conviction court denied  Wesley’s
petition.  On review the Court of Appeals reversed concluding, “there  is  a
reasonable probability that, had trial  counsel  obtained  and  used  Isom’s
psychiatric records, Wesley  would  not  have  been  convicted  of  criminal
confinement and battery.”  Wesley v. State, 753 N.E.2d 686,  692  (Ind.  Ct.
App. 2001), reh’g denied.  Having previously granted transfer we now  affirm
the post-conviction court.

                             Standard of Review

      The petitioner in a post-conviction proceeding  bears  the  burden  of
establishing the grounds for relief by a preponderance of the evidence.   P-
C. R. 1(5);  Curry  v.  State,  674  N.E.2d  160,  161  (Ind.  1996).   When
appealing from the denial of post-conviction relief, the  petitioner  stands
in the position of one appealing a negative judgment.   Id.   As  such,  the
petitioner faces  a  rigorous  standard  of  review.   The  petitioner  must
convince the court that  the  evidence  as  a  whole  leads  unerringly  and
unmistakably to a decision opposite  that  reached  by  the  post-conviction
court.  Dewitt v. State, 755 N.E.2d 167, 170 (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).   Further,
the post-conviction  court  in  this  case  entered  findings  of  fact  and
conclusions of law in accordance with  Indiana  Post-Conviction  Rule  1(6).
We will reverse a post-conviction court’s findings and judgment only upon  a
showing of clear error—that  which  leaves  us  with  a  definite  and  firm
conviction that a mistake has been made.  Saylor v. State, 765  N.E.2d  535,
547 (Ind. 2002).

                                 Discussion

      Wesley contends his trial counsel rendered ineffective assistance  for
failing to obtain and use Isom’s  psychiatric  records.   The  records  show
that Isom was first hospitalized in 1980 for  “inappropriate  behavior  with
delusional thinking.”  Ex. A at 67.  Isom was  hospitalized  again  in  1983
when she told hospital staff that her niece had cut her  with  a  razor  and
that she was “bleeding from head to toe.”  Id. at 90.  The  staff  found  no
lacerations and only “old abrasions” on her body.   Id.  at  128.   She  was
thus  diagnosed  as  “delusional”  and  admitted  for  an  “acute  psychotic
episode.”  Id. at 90, 92, 124.  Six years later Isom was again  admitted  to
a  hospital  after  she  was  found  partially  clothed  in   a   McDonald’s
restaurant.  She told police that she feared someone was trying to hurt  her
but later told hospital staff that she had similar fears  in  the  past  and
was delusional.  During this hospital stay, Isom attempted  to  call  police
to report that her husband had killed five children in Cleveland.  She  also
told hospital staff that her boyfriend was a biker  and  had  threatened  to
kill her if she pressed charges against him.[5]
      Wesley  does  not  allege  the  records  could  or  should  have  been
introduced by trial counsel as  substantive  evidence.   Rather,  contending
that Isom  injured  herself  and  then  fabricated  or  fantasized  that  he
attacked her, Wesley argues the records  should  have  been  discovered  and
used by trial counsel for the  purposes  of  impeachment.   Specifically  he
claims counsel should have used the records “to impeach  [Isom]  as  to  her
ability to realistically recall the facts she was testifying  to.”   Br.  of
Pet’r-Appellant at 17.  In addressing this claim the  post-conviction  court
concluded:
      Trial counsel was not ineffective for failing to present Isom’s mental
      history  or  alleged  pattern  of  self  injury.   [Wesley]  has   not
      demonstrated that such evidence was not [sic] relevant given the  fact
      that the defense was predicated upon [Wesley’s] claim  that  Isom  was
      the  aggressor  and  was  injured  when  [Wesley]  defended   himself.
      [Wesley] did not claim at trial that Isom  injured  herself  and  then
      fabricated or fantasized  an  attack  by  her  boyfriend.   Therefore,
      [Wesley] has not shown that the evidence  would  have  been  relevant.
      Ind. Evid. R. 403.  Further, Petitioner has not shown that the  mental
      health records would have been proper impeachment.  Ind. Evid. R. 608.


P-C R. at 144.
      Among other things, Wesley testified at trial that Isom approached him
with a knife or other object and later brandished a  shotgun.   R.  at  366,
371.  Wesley admitted holding the shotgun  during  part  of  the  encounter,
although he claims that occurred when he was  attempting  to  take  it  away
from Isom.  Id. at 371-74.  Wesley also admitted that the two struggled  and
did not dispute that Isom was injured during the  course  of  the  struggle.
Indeed, Wesley testified that he did not “purposely batter”  Isom.   Id.  at
374.
      Based on Wesley’s testimony alone, the jury could conclude that Wesley
touched Isom in a rude, insolent, or angry manner.  See Ind. Code § 35-42-2-
1 (West Supp. 1990).  The jury could also conclude the touching occurred  by
means of a deadly weapon.  Id.  In like fashion, the  jury  could  conclude,
based on Wesley’s own  testimony,  that  he  substantially  interfered  with
Isom’s liberty without her consent while armed with a  deadly  weapon.   See
I.C. § 35-42-3-3 (West Supp. 1990).  The question is whether Wesley  engaged
in the foregoing conduct “knowingly and intentionally.”
      To establish a post-conviction claim alleging a violation of the Sixth
Amendment right  to  effective  assistance  of  counsel,  a  defendant  must
establish before the post-conviction court the two components set  forth  in
Strickland v. Washington, 466 U.S. 668  (1984).   Williams  v.  Taylor,  529
U.S. 362, 390 (2000).  First, a defendant must show that  defense  counsel’s
performance was deficient.  Strickland, 466  U.S.  at  687.   This  requires
showing that counsel’s representation fell below an  objective  standard  of
reasonableness and that counsel made errors so serious that counsel was  not
functioning  as  “counsel”  guaranteed  to  the  defendant  by   the   Sixth
Amendment.  Id. at 687-88.  The  objective  standard  of  reasonableness  is
based on “prevailing professional norms.”  Id. at 688.  Second, a  defendant
must show that the deficient performance prejudiced  the  defense.   Id.  at
687.  This requires showing that counsel’s errors  were  so  serious  as  to
deprive the defendant of a fair trial, a trial  whose  result  is  reliable.
Id.  To  establish  prejudice,  a  defendant  must  show  that  there  is  a
reasonable probability that, but for counsel’s  unprofessional  errors,  the
result of the proceeding would be different.   Id.  at  694.   A  reasonable
probability is a probability  sufficient  to  undermine  confidence  in  the
outcome.  Id.
      At the time of Wesley’s trial, evidence was considered relevant if  it
tended to prove or disprove a material fact or shed any light on  the  guilt
or innocence of the accused.  Davidson  v.  State,  558  N.E.2d  1077,  1088
(Ind. 1990).  Wesley did not explain to the post-conviction court, nor  does
he now explain how the use of Isom’s psychiatric records to impeach Isom  on
“her ability to realistically recall the facts she was testifying to”  would
tend to prove or disprove his state of mind.  Nor has Wesley ever  explained
how such impeachment would shed any light on his  guilt  or  innocence.   At
best, Isom’s psychiatric records were only marginally  relevant.   Counsel’s
representation cannot be deemed to have fallen below an  objective  standard
of  reasonableness  by  failing  to  obtain  and  use  marginally   relevant
evidence.

                                 Conclusion

      In this case Wesley has not carried his burden of  demonstrating  that
the evidence as a whole leads unerringly  and  unmistakably  to  a  decision
opposite that reached by the post-conviction court.  Accordingly, we  affirm
the post-conviction court’s judgment.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
      [1]  “R.” refers to the trial court record.  “P-C R.”  refers  to  the
post-conviction court record.  “Ex. A” refers to Isom’s psychiatric  records
introduced at the post-conviction hearing as “Petitioner’s Exhibit  A”;  the
psychiatric records are a part of the post-conviction record, but  they  are
not consecutively paginated with the rest of the post-conviction  record  so
to avoid confusion we refer to them separately.
      [2]  This charge arose from Isom’s allegation that during  the  course
of the altercation Wesley inserted the barrel of a shotgun into her  vagina.
 The charge was dismissed on the first day of trial when Isom  admitted  the
allegation was not true.   Isom  testified  that  she  made  the  allegation
because “[Wesley] said he was going to do  it,  I  was  going  to  say  that
[Wesley] did it.”  R. at 187.
      [3]   The  guilty  verdicts  for  intimidation   and   resisting   law
enforcement related to Wesley’s confrontation with  the  police.   They  are
not challenged in this appeal.

      [4]  The first twenty-seven pages consist of  records  from  1996  and
1997.  Ex. A at 2-28.  Obviously, the records from 1996 and 1997  cannot  be
a part of the  consideration  as  to  whether  Wesley’s  trial  counsel  was
ineffective for failure to obtain them in 1991.
      [5]  Wesley also claims Isom’s psychiatric records show a  history  of
“self injury.”  Br. of Pet’r-Appellant at 9.  However,  our  examination  of
the record shows not only is this  claim  speculative,  but  also  the  only
reference to self injury occurred in 1997 – a  date  beyond  that  which  is
relevant to this appeal.  See supra note 4.  Apparently Isom was taken to  a
hospital because of a cut to her  head.   Isom’s  sister  informed  hospital
staff that the cut “may have been a self-inflicted injury.”  Ex. A at 12.