ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Cynthia Maricle Russell Monika Prekopa Talbot
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
ORLANDO MARTIN, )
)
Appellant (Defendant Below), ) No. 45S05-0106-PC-282
) In the Supreme Court
v. )
) No. 45A05-0009-PC-379
STATE OF INDIANA, ) In the Court of Appeals
)
Appellee (Plaintiff Below). )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James Clement, Judge
Cause No. 45G04-9010-CF-00184
January 4, 2002
SHEPARD, Chief Justice.
In his post-conviction relief petition, Orlando Martin alleges
ineffective assistance of counsel because his appellate attorney mentioned,
but did not brief, a claim that the trial court improperly gave the jury an
instruction after deliberations had begun. Concluding that this error
neither constituted deficient performance nor prejudiced Martin’s case, we
affirm the denial of post-conviction relief.
Facts and Procedural History
Martin was charged with murdering Donald Stewart and tried before a
jury in 1992. The evidence revealed that Martin sought out Stewart because
he believed that Stewart was somehow involved in the death of Martin’s
teenage daughter.
Martin enlisted the help of LaTanya Means in finding Stewart. After
Means located Stewart, Martin’s friend Elston Pickford, Martin, and Stewart
drove to a wooded area. According to Pickford’s testimony, Martin forced
Stewart into the woods at gunpoint. Pickford heard a scream, followed by
two shots. Martin then returned from the woods and told Pickford that he
had only shot Stewart in the leg and that he could crawl home.
In settling on final instructions during Martin’s trial, the court
initially declined to instruct on aiding and abetting, believing it would
be too confusing to the jury. About three hours into deliberations, the
jury came back with a question about the liability of an accomplice.[1]
Over Martin’s objection, the judge gave the jury an additional instruction
on accomplice liability. The jury later found Martin guilty of murder, and
the court sentenced him to forty years in prison.
The current litigation flows from the brief filed in Martin’s direct
appeal. Martin’s appellate lawyer asserted in the section of his brief
summarizing the arguments that the trial court’s instruction on accomplice
liability was improper, but he did not address the issue in the section of
the brief laying out each argument in full. Martin v. State, 636 N.E.2d
1268, 1270 n.2 (Ind. Ct. App. 1994); (P-C.R. at 84-101). The Court of
Appeals ruled that Martin had waived this issue because he failed to cite
authority in support of his contention. Martin, 636 N.E.2d at 1270 n.2
(citing Ind. Appellate Rule 8.3(A)(7)).[2] It rejected his other
allegations of error and affirmed the trial court.
Martin filed a petition for post-conviction relief, alleging that the
trial court committed fundamental error by giving the jury a supplemental
instruction and that his assistance from appellate counsel was
constitutionally deficient. The Court of Appeals reversed the post-
conviction court’s denial of the petition, holding that Martin’s appellate
representation was both deficient and prejudicial. Martin v. State, 744
N.E.2d 574, 579 (Ind. Ct. App. 2001). We accepted transfer and now affirm
the post-conviction court’s denial of relief.
Fundamental Error Rightly Held Unavailable
Martin first argues that the trial court erred when it gave a jury
instruction after deliberations had begun. (Appellant’s Br. at 12.) The
Court of Appeals declined to address this issue as a freestanding matter
because the issue was available on direct appeal. Martin, 744 N.E.2d at
577. The Court of Appeals was correct.
Post-conviction relief is not a substitute for a direct appeal. Ind.
Post-Conviction Rule 1, §1(b). Post-conviction procedures create a narrow
remedy for subsequent collateral challenges to convictions. Benefiel v.
State, 716 N.E.2d 906 (Ind. 1999). Freestanding claims that the original
trial court committed error are available only on direct appeal. See
Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001).
To avoid waiver, Martin argues that the trial court committed
fundamental error. (Appellant’s Br. at 12.) To qualify for review under
this exception, a claim of error must be “so prejudicial to the rights of a
defendant as to make a fair trial impossible.” Barany v. State, 658 N.E.2d
60, 64 (Ind. 1995).
As we recently held in Carter v. State, 754 N.E.2d 877, 881 (Ind.
2001), “An appellate court receiving contentions of fundamental error need
only expound upon those it thinks warrant relief. It is otherwise adequate
to note that the claim has not been preserved.” The Court of Appeals was
thus right simply to note that Martin’s claim about the additional
instruction was unavailable.
Effective Assistance of Counsel
Martin next argues that his Sixth Amendment right to effective
assistance of council was violated. His only argument on this point is
that his appellate lawyer failed to mention the giving of the supplemental
instruction in the argument section of his brief. (Appellant’s Br. at 18.)
To establish a violation of the Sixth Amendment right to effective
assistance of appellate counsel, Martin must establish the two elements set
forth in Strickland v. Washington, 466 U.S. 668 (1984). First, appellate
counsel’s performance must be shown to be deficient, meaning the counsel’s
representation fell below an objective standard of reasonableness. Id. at
687-88; Prowell v. State, 741 N.E.2d 704, 712 (Ind. 2001). Second, Martin
must show that the deficient performance actually prejudiced his defense.
See Strickland, 466 U.S. at 687. In other words, the prejudice-prong of
Strickland requires Martin to demonstrate a reasonable probability that,
but for his counsel’s errors, the result of his direct appeal would have
been different. See id. at 694.
The question is not whether the trial court was correct in providing
the jury with a supplemental instruction on aiding and abetting. Instead,
the appropriate question on petition for post-conviction relief is whether
appellate counsel’s performance, viewed in its entirety, denied Martin his
Sixth Amendment right to counsel. Bieghler v. State, 690 N.E.2d 188, 193-
94 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998) (citing Lowery v. State,
640 N.E.2d 1031, 1041 (Ind. 1994)). Thus, Martin must demonstrate that,
taken as a whole, his appellate counsel’s performance fell “outside the
wide range of professionally competent assistance.” Id.
Counsel is afforded considerable discretion in choosing strategy and
tactics. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001) (citing
Strickland, 466 U.S. at 689). We strongly presume that counsel rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. Id. Even when failure to argue a
potential claim is not a matter of conscious strategy, isolated mistakes,
poor strategy, inexperience, and instances of bad judgment do not
necessarily render representation ineffective. See Bieghler, 690 N.E.2d at
199; Ingram v. State, 508 N.E.2d 805, 808 (Ind. 1987) (citation omitted).
In appellate briefs, arguments are listed in three sections: (1)
issues presented for review, (2) summary of the argument, and (3) argument.
See App. R. 46(A)(4),(7),(8). Martin’s counsel listed the supplemental
instruction argument only in the second section. (P-C.R. at 84-100.)
Because the issue was listed in the summary of the argument section, Martin
alleges that his appellate counsel was ineffective for not fully arguing
the supplemental instruction issue in the appellate brief. Another
possibility is that Martin’s counsel simply chose to drop this argument
because it was the weakest issue but failed to remove it from the summary
section. It is certainly plausible that counsel chose to abandon this
argument rather than simply failed to address it.[3]
Martin’s claim that this single omission overcomes the strong
presumption of adequate assistance is unconvincing in light of the entirety
of Martin’s appellate lawyer’s performance. Counsel advanced three
respectable issues on direct appeal: (1) the admissibility of weapons
owned by Martin, (2) the admissibility of expert testimony regarding the
identification of the victim’s skeletal remains, and (3) the trial court’s
denial of a new trial following discovery of new evidence. See Martin, 636
N.E.2d at 1270-73. Even assuming Martin’s appellate counsel erroneously
omitted the argument, this single, isolated mistake did not render
representation ineffective. As we discuss more fully below, the
instruction issue would not have been stronger than the three issues
actually raised.
We are also satisfied that appellate counsel’s failure to argue the
supplemental instruction worked little prejudice. As we stated earlier,
Martin must demonstrate under the prejudice prong of Strickland that there
is a reasonable probability that the result of his direct appeal would have
been different. See Strickland, 466 U.S. at 494. Had this issue been
presented on direct appeal, it would have been rejected.
The generally accepted procedure in answering a jury's question on a
matter of law is to reread all instructions in order to avoid emphasizing
any particular point and not to qualify, modify, or explain its
instructions in any way. Riley v. State, 711 N.E.2d 489, 493 (Ind. 1999)
(citing Wallace v. State, 426 N.E.2d 34, 36-37 (Ind. 1981)). However, we
have permitted departure from this procedure when a trial court is faced
with an omitted and necessary instruction or must correct an erroneous
instruction, as long as it is "fair to the parties in the sense that it
should not reflect the judge's view of factual matters." Id. (quoting
Jenkins v. State, 424 N.E.2d 1002, 1003 (Ind. 1981)). Thus, "when the jury
question coincides with an error or legal lacuna [i.e., gap] in the final
instructions . . . a response other than rereading from the body of final
instructions is permissible." Jenkins, 424 N.E.2d at 1003.
Given the facts of this case, an instruction on aiding and abetting
was unnecessary. Neither Means nor Pickford was on trial with Martin, and
there was no evidence that Martin assisted another. It is hard to surmise
why the jury asked for instruction on this issue, but they were apparently
interested enough in the relative guilt of those who assisted in the murder
that they felt the need to ask the judge about it. Still, the evidence
presented at trial was overwhelming. There was no identification problem,
and all the evidence pointed to Martin as the murderer. (See P-C.R. at 71,
78-79.)
In short, Martin’s appellate lawyer raised three respectable issues
on appeal and omitted an issue that we likely would have rejected. Even if
this nudged the lawyer’s performance outside the range of reasonableness,
we think it clear the outcome of the appeal would have been the same.
Conclusion
We affirm the denial of post-conviction relief.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] The jury sent a note that read: “If two people go to the murder site
and only 1 person fires the weapon, are both considered guilty by the law?
And the other one helped get the victim to the murder site.” (T.R. at 81.)
[2] Current version at App. R. 46(A)(8).
[3] Our decisions encourage appellate counsel to avoid the “kitchen-sink”
method of appellate advocacy. See, e.g., Bieghler, 690 N.E.2d at 194
(citing Jones v. Barnes, 463 U.S. 745 (1983)). A multitude of marginal
issues may hide those with merit. To quote Justice Jackson: “Legal
contentions, like the currency, depreciate through over-issue.” Justice
Robert H. Jackson, Advocacy Before the United States Supreme Court, 25
Temple L.Q. 115, 119 (1951).