Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE: KENDRICK MORRIS Pendleton, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana

FILED
Jan 30 2008, 9:33 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
KENDRICK S. MORRIS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 49A02-0610-PC-880

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Robert Altice, Judge The Honorable Amy Barbar, Magistrate Cause No. 49G02-0105-CF-108789

January 30, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Judge

Kendrick S. Morris appeals the post-conviction court's denial of his petition for post-conviction relief. Morris raises two issues, which we consolidate and restate as whether Morris was denied the effective assistance of trial and appellate counsel. We affirm. The relevant facts as stated in Morris's direct appeal follow: On April 14, 2001, then thirteen-year-old Tiara McGinty was about to leave her home on Carrollton Avenue in Indianapolis when she observed two men dressed in black, hooded shirts standing on the porch holding guns. The front door of the residence was open but the screen door was closed. Tiara was standing inside the house behind the screen door when the men began shooting at the door. Tiara turned to fall on the ground, and the men shot her in the legs and back. One bullet entered one of her thighs and exited out the other thigh. Another bullet entered her back, hit her lung, bruised her heart, broke her rib, hit her liver and lodged in her stomach. She had surgery to remove the bullet in her stomach and was hospitalized for eighteen days. During an interview with Indianapolis Police Detective Jeffrey Wager, Tiara identified Morris as one of the shooters. Detective Wager later interviewed LeShaun Mickens, Tiara's cousin and an eyewitness to the shooting. During an audiotaped statement, Mickens also identified Morris as one of the shooters. The State charged Morris with attempted murder, aggravated battery, and unlawful possession of a firearm as a serious violent felon. At trial, Mickens repudiated her out-of-court statement and stated that she could not identify the persons involved in the shooting. She further testified that Detective Wager told her the identity of the shooters and asked her to lie. At that point, the State sought to introduce Mickens's out-of-court statement. Morris's counsel moved to suppress the statement, alleging that it was coerced, was improper impeachment evidence, and, contrary to the State's contention, was not admissible under Indiana Evidence Rule 801(d). The court held a hearing outside the jury's presence, listened to the taped statement, and heard testimony from Detective Wager. Following the hearing, the court found that Mickens's statement was not coerced and admitted the tape into evidence. Subsequently, the State played the tape for the jury. Then, during the State's direct examination of Detective Wager, he testified regarding his May 14, 2001 interview with Mickens and the statement he took from her. Morris's counsel objected on the same grounds 2

articulated during the suppression hearing, and the trial court allowed the detective's testimony. Larry Beverly and Anthony McGinty also testified at trial. Beverly testified, in relevant part, that he often stayed at the residence on Carrollton Avenue where Tiara was shot. He further stated that he knew Morris and the other co-defendants and that prior to the shooting, he had told them not to come to the residence on Carrollton Avenue anymore. The State asked Beverly whether Morris and the others were angry when he told them not to come around the house, and Beverly stated that they were not. The State then used two pretrial statements Beverly had given to police to impeach his testimony. McGinty testified, in part, that he is Tiara's uncle and lives at the Carrollton Avenue residence. He explained that the defendants had stayed overnight at his house on several occasions. He also testified that the day before the shooting, he told Morris and the other two defendants that they could not come over to his house anymore. When McGinty denied the State's suggestion that he backed the defendants "out onto [his] front porch" and told them they could not come over, the State used a pretrial statement McGinty had given to an officer to impeach his statement. McGinty also denied making a statement to the officers that Morris and the defendants were mad when he told them they could not come to his house anymore. Again, the State impeached his testimony with a pretrial statement. Morris's counsel did not object to the State's use of Beverly and McGinty's pretrial statements. The jury found Morris guilty as charged[.] Morris v. State, No. 49A05-0205-CR-225, slip op. at 2-4 (Ind. Ct. App. Feb. 5, 2003). On direct appeal, Morris argued that: (1) the trial court erred by allowing the State to use Mickens's prior statement as substantive evidence and by allowing the State to read portions of Beverly and McGinty's pretrial statements; (2) the evidence was insufficient to prove that he specifically intended to kill Tiara; and (3) the State failed to present sufficient evidence to rebut his alibi defense. Id. at 2. We rejected Morris's arguments and affirmed his convictions. Id. at 11. In 2003, Morris filed a petition for post-conviction relief, which he later amended in 2006. Morris alleged that he received ineffective assistance of trial counsel because 3

trial counsel failed to object to Tiara's out-of-court and in-court identifications and that he received ineffective assistance of appellate counsel because appellate counsel failed to raise on appeal the trial court's denial of his motion for a mistrial regarding prosecutorial misconduct. After an evidentiary hearing, the post-conviction court denied Morris's petition for post-conviction relief as follows: 2. The Petitioner is entitled to no relief as to his claim of an improperly suggestive photo array. Ms. McGinty had noted that two of the men who were present on that day were wearing black hooded sweatshirts. The Detective for the Indianapolis Police Department prepared a six person photo array for Ms. McGinty in which the Petitioner was wearing a black hooded sweatshirt. Ms. McGinty identified Morris from the photo array as one of the two men carrying guns on the day of her shooting. Petitioner claims this tainted the victim's in court identification. The Indiana Supreme Court uses a totality of the circumstances test to when a suggestive photo array is alleged. Where a trial court has admitted evidence of pretrial and in-court identification of a person accused of a crime, the reviewing court must determine, under the totality of the circumstances, whether the pretrial confrontation was so suggestive and conducive to irreparable mistaken identification as to deny the accused due process of law under the Fourteenth Amendment. In making this determination, the reviewing court must decide whether law enforcement officials conducted the out-of-court procedures in such a fashion as to lead the witness to make a mistaken identification. Goudy v. State, 689 N.E.2d 686, 693 (Ind. 1997)(internal citations omitted). It should be noted that relevant Indiana case law as of 2004 revealed no reported case where our courts have held that a photo array was impermissibly suggestive. J.Y. v. State, 816 N.E.2d 909, 913 (Ind. Ct. App. 2004). Our Supreme Court provides further guidance in opinions in Harris v. State, 716 N.E.2d 406, (Ind. 1999, and Farrell v. State, 622 N.E.2d 488 (Ind. 1993). In Harris, the 4

defendant asserted on appeal that the photo array at issue was impermissibly suggestive "because (1) he was the sole person depicted in the array wearing a white shirt, and (2) only he and one other person are depicted in the array with hairstyles that resemble dreadlocks." Id. at 410. Whether the procedure employed was unnecessarily suggestive in a particular case is to be determined under the totality of the circumstances. Id. The supreme court has held that a photo array is not impermissibly suggestive if the defendant "does not stand out so strikingly in his characteristics that he virtually is alone with respect to identifying features." Farrell v. State, 622 N.E.2d 488, 494 (Ind. 1993). Was the identification process conducted in such a way that it created a substantial likelihood of irreparable misidentification? See, J.Y., id. This is not a case of a mugging or purse snatch where the victim gets only a brief glimpse of a stranger attacking. This a case where the victim knows the attacker well. The value of the photo array for identification purposes was minimal at best. Given the time the victim and Petitioner had been acquainted, it is unlikely the clothing worn in the array would confuse the victim and cause her to identify the wrong person. See, Williams v. State, 774 N.E.2d 889 (Ind. 2002). The victim knew the Petitioner (also known as "Kenny Mac"). R. 125. She knew him well because he had visited her house "mostly every day" over a period of six months and would sometimes spend the night. R. 128, 129. She was clear in her testimony at trial that she saw Petitioner outside her home with a gun right before she was shot. R. 131. Also, she noted that she was clear that it was Petitioner who was the one who shot her from the day that she first was able to speak to Detective Wager. R. 180. She told Det. Wager it was the Petitioner who shot her before he ever showed her an array. T.R. 345, 400. In addition, another witness, LeShaun Mickens, originally identified the Petitioner as the shooter only to change her testimony at trial. This testimony was impeached by her earlier taped statement. R. 270. The victim's uncle, Anthony McGinty, testified that he had told Petitioner and his co-defendants that they were no longer welcome at the house on the day before the shooting. R. 311. All of this identification evidence was used to identify the Petitioner at trial and it was independent of the photo array identification. Under the totality of the circumstances test, it can be shown that she knew the Petitioner, had contact with him almost every day for six months, others placed him at the crime scene and he had reason to be upset with the occupants of the household. The photo array was not overly suggestive nor did it cause Petitioner any prejudice at trial. 5

3.

[ ] Before turning to the individual claim of Petitioner, the Court notes Counsel met with potential witnesses, deposed witnesses, filed discovery motions, notice of alibi, filed motion to exclude evidence, made objections to evidence, motion in limine, motion for a mistrial, motion for a judgment on the evidence and conducted a closing argument consistent with the theory of the case. (Case Chronology). Petitioner claims his counsel was ineffective because he failed to object to the photo array. Counsel repeatedly attacked the identification of his client. T.R. at 167, 169, 170, 181 (cross of Tiara); T.R. at 265 (cross of Mickens); T.R. at 318 (cross of McGinty); T.R. at 424-430, 437-438 (cross of Det. Wager). As noted earlier, the victim knew the Petitioner, he had stayed at her house almost every day for a period of six months, and she was unwavering in her identification of him as the shooter. Counsel's strategy was clearly to attack how the State presented Mickens' testimony. Even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. . . . Thus, counsel's representation is not rendered ineffective by isolated mistakes, poor strategy, inexperience and bad judgment. . . . Given the standard required to show that identification should be suppressed and the complete absence of any evidence that any identification from Tiara was coerced or suggested, the Court finds counsel did not perform deficiently by failing to file a motion to suppress Petitioner's identification. "[T]rial counsel is not ineffective for not attempting a futile endeavor." Allen v. State, 686 N.E.2d 760, 780 (Ind. 1997). The Petitioner had failed to demonstrate prejudice from counsel's decision. The entire trial revolved around identification issues. Counsel vehemently pursued all viable lines of attack on identification. [ ] The Petitioner has not shown any prejudice by appellate counsel's issue selection strategy. A significant portion of the trial was focused on the identification issue and the motion to suppress the impeachment testimony. Petitioner has not shown the omitted issues to be stronger arguments than what was raised by appellate counsel. He has not shown any prejudice suffered by appellate counsel's decision as well. The Petitioner is entitled to no relief as to this claim.

4.

Appellant's Appendix at 84-90. 6

The issue is whether Morris was denied the effective assistance of trial and appellate counsel. Before discussing Morris's allegations of error, we note the general standard under which we review a post-conviction court's denial of a petition for postconviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana PostConviction Rule 1(6). Id. "A post-conviction court's findings and judgment will be reversed only upon a showing of clear error

Download Kendrick S. Morris v. State of Indiana.pdf

Indiana Law