Alphonzo Griffin v. State of Indiana (NFP)

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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: ATTORNEYS FOR APPELLEE: ALPHONZO GRIFFIN Michigan City, Indiana GREGORY F. ZOELLER Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana FILED IN THE COURT OF APPEALS OF INDIANA ALPHONZO GRIFFIN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) Apr 14 2010, 10:28 am No. 71A03-0901-PC-6 APPEAL FROM THE SAINT JOSEPH SUPERIOR COURT The Honorable R.W. Chamblee, Jr., Judge Cause No. 71D03-0504-PC-20 April 14, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge CLERK of the supreme court, court of appeals and tax court Alfonso Griffin, pro se, appeals the denial of his petition for post-conviction relief (PCR), by which he challenged his conviction for aiding a robbery as a class A felony. Griffin presents the following consolidated and restated issue: Did Griffin receive ineffective assistance of trial and appellate counsel? We affirm. The underlying facts were set out in this court s memorandum decision affirming Griffin s conviction on direct appeal, as follows: For three to four months prior to November 29, 2001, Griffin, Larry Smith, Ronald Williams, Ronald Brownlee, and Milton Brown planned to rob Charles Long, who managed several bingo halls, and the majority of the planning of the robbery occurred at Griffin s house. Griffin, who was a regular patron of the bingo halls managed by Long, told Smith and Williams that Long took money from the bingo halls to his house at night to count it and that sometimes a police officer would follow Long home. Griffin told them that Long would have three to four hundred thousand dollars and some jewelry at his house. Griffin also showed them where Long lived, told them how many people lived with Long, and showed them what kind of car Long drove. Griffin had originally planned to go with the others when they went to Long s house to rob him, but the group decided that there was a risk that Long, who knew Griffin as a bingo patron, might recognize Griffin s voice and build and that Griffin needed to establish an alibi. On November 29, 2001, Griffin, Smith, Williams, and Brownlee were at Griffin s house, and they discussed going to Long s house that night to rob him. Griffin gave them his handgun to use in the robbery, and then Smith, Williams, and Brownlee followed Griffin to the bingo hall to verify that Long was there. Smith, Williams, and Brownlee, equipped with guns, masks, duct tape, and walkie-talkies, later drove to Long s house and waited for him to come home. Long arrived home with his stepson, Richard Barnard, and as Long unlocked the door, Williams, Smith, and Brownlee forced Long and Barnard inside at gunpoint. As they went inside the house, Richard Mulhaupt, who lived with Long, came to the front door to meet Long. While Smith searched the house, Brownlee bound Barnard s and Mulhaupt s feet and hands with duct tape. As Williams pointed his gun at Long, he tried to grab hold of Long s hands in order to detain him. Long resisted and tried to grab Williams s gun. 2 The two struggled, Williams shot Long in the chest, and Long fell to the floor. Williams pulled Long off of the floor and forced him to the basement so that Long could open his safe. Williams took Long s wallet and jewelry from him and took jewelry, cash, a coin collection, gold Krugerrands, and gold and silver certificates from the safe. After Williams, Smith, and Brownlee left Long s house, they hid their car at Brown s house, picked up Griffin, and returned to Brown s house to inspect what they had taken from Long s house. They later drove to Chicago to pawn the items. The State charged Griffin with aiding a robbery as a class A felony, conspiracy to commit robbery as a class A felony, and receiving stolen property as a class D felony but dismissed the receiving stolen property charge during trial. Griffin v. State, No. 71A03-0312-CR-477, slip op. at 2-4 (Ind. Ct. App. Sept. 10, 2004) (footnotes omitted). The jury found Griffin guilty of aiding a robbery and conspiracy to commit robbery, both as class A felonies. The trial court entered judgment of conviction only for aiding a robbery and sentenced Griffin to fifty years in the Indiana Department of Correction. On April 15, 2005, Griffin filed a PCR petition and later filed an amended PCR petition on May 5, 2008. On December 20, 2008, the St. Joseph Superior Court conducted an evidentiary hearing on Griffin s amended petition. The court denied the petition at the conclusion of the hearing. The petitioner in a post-conviction proceeding must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Fisher v. State, 810 N.E.2d 674 (Ind. 2004). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher v. State, 810 N.E.2d at 679. To succeed on appeal from the denial of relief, the petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion 3 opposite the one reached by the post-conviction court. Johnson v. State, 832 N.E.2d 985 (Ind. Ct . App. 2005), trans. denied. Griffin contends trial counsel rendered ineffective assistance of counsel. We have set out the standard for reviewing claims of ineffective assistance of counsel as follows: To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel s performance was deficient and that the petitioner was prejudiced by the deficient performance. A counsel s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Failure to satisfy either prong will cause the claim to fail. Walker v. State, 843 N.E.2d 50, 57 (Ind. Ct. App. 2006) (citing Strickland v. Washington, 466 U.S. 668 (1984)) (internal citations omitted), trans. denied. Because a petitioner must prove both elements in order to succeed, the failure to prove either element defeats the claim. See Young v. State, 746 N.E.2d 920 (Ind. 2001) (holding that because the two elements of Strickland are separate and independent inquiries, the court may dispose of the claim on the ground of lack of sufficient prejudice if it is easier). Griffin first contends that trial counsel rendered ineffective assistance in the following respect: Counsel failed to conduct a professional investigation into the facts and circumstances of this case. Appellant s Brief at 7. When deciding a claim of ineffective assistance of counsel for failure to investigate, we apply a great deal of deference to counsel s judgments. Parish v. State, 838 N.E.2d 495, 500 (Ind. Ct. App. 2005). The first claim of inadequate investigation centers on his contention that counsel failed to discover 4 the background, reputation, and criminal history of key prosecution witnesses. Appellant s Brief at 10. The witnesses to whom he refers are Smith, Brownlee, and Williams. Clearly the purpose of such would have been to discredit their testimonies against him. We note that these witnesses were questioned closely about the plea agreement each of them reached, including most notably the concessions each received in exchange for his testimony at Griffin s trial.1 Moreover, Smith s criminal history was discussed during his direct examination. Be that as it may, Griffin has failed to reveal what further investigation would have uncovered. He merely claims [t]his history, standing alone, would have seriously damaged their credibility in that reliable information was available that the key prosecution witnesses had prior convictions for crimes of dishonesty. Appellant s Brief at 10. Such unsupported general assertions and vague allusions will not suffice. Without more specific information, we are unable to assess the prejudice resulting from the failure to investigate in this regard. Having failed to establish this element, his claim fails. See Young v. State, 746 N.E.2d 920. Griffin contends trial counsel rendered ineffective assistance in that he failed to conduct professional interviews of Griffin, Nerissa, Winston, and other available witnesses, and failed to prepare Griffin s trial testimony. Appellant s Brief at 13. What follows by way of argument is a series of boilerplate statements of law and unsupported assertions and insinuations, e.g., independent corroboration by other defense witnesses would have been 1 Of course, we understand that Griffin entirely discounts the prosecutor s statement that the deals were made to obtain truthful testimony, i.e., This claim belies the fact that felon witnesses, even though they be idiots, morons, or mentally retarded, understand that they will receive some reward for their testimony only if the prosecutor is satisfied with their testimony[.] Appellant s Brief at 12. 5 extremely significant and would have given even more credibility to Griffin s version of the fact in a situation where credibility was a crucial issue. Id. at 16. Such a statement is not sufficient to establish prejudice even if it is followed by a series of similar unsupported statements. The only statement that contains even a modicum of specificity pertains to Winston, whom Griffin claims would have divulged that the felon witnesses in this case never discussed their plans with Winston or Griffin. Id. at 17. Griffin goes on to concede, however, that Winston invoked the Fifth Amendment and declined to testify at his trial. Thus, prejudice cannot be premised upon what Winston might have said if she had testified at his trial. Again, Griffin has failed to demonstrate prejudice. Griffin next contends [c]ounsel failed to object when the jury was sent into deliberations after midnight, after more than 15 hours of trial proceedings, which denied Griffin the right to present a defense. Id. at 18. As part of this argument, Griffin contends that, as a diabetic, [he] was forced to testify during evening hours after being deprived of his insulin medication and proper food or drink. Id. It appears that defense counsel was not aware of Griffin s condition until Griffin informed counsel that he was beginning to experience unspecified symptoms, at which time counsel immediately advised the court that Griffin needed an insulin shot and to eat some food. The court promptly declared a recess and those matters were addressed. The court reconvened after the shot was administered and Griffin had eaten. The court asked Griffin if the food and insulin had helped and he responded in the affirmative. With respect to the jury, after Griffin s medical condition was discovered and the trial 6 halted, the trial court addressed the jury. The trial court advised the jurors that they were going to break so Griffin could eat and get a shot of insulin. The court indicated that after an hour or so, they should be able to resume and Griffin would testify, after which the presentation of the case would be concluded and deliberations would begin. The court proposed to order dinner for the jury in the interim. The court informed the jury, however, that the decision whether to continue with trial that evening was the jury s to make, and that if the jurors wished, they would continue trial the following Monday. The jury expressed its desire to go forward that evening. It appears, then, that Griffin was physically able to continue into the evening and the jury chose to do so. We can find no evidence that the jury s verdict was the product of fatigue. Griffin has failed to prove he was prejudiced by counsel s failure to object to the decision to continue his trial into the evening. Griffin contends trial counsel rendered ineffective assistance in failing to object when the trial court denied Griffin the right to confront and properly cross-examine State witnesses who testified against Griffin in exchange for consideration from the State. Id. at 19. The witnesses to whom this argument refers are Smith, Brownlee, and Williams. Each of these witnesses was questioned about his plea deal and any other consideration that might have been extended by the State in return for his testimony. Griffin does not cite or describe any other deals and/or consideration that were not covered in the relevant portions of the transcript. Thus, we perceive no prejudice to Griffin. Griffin also argues that [c]ounsel was ineffective for failing to object to the admission of police statements induced from Griffin in violation of his due process rights 7 under the United States Constitution. Id. at 22. Indiana Appellate Rule 46 provides that an argument on appeal must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22. App. R. (A)(8)(a). Griffin does not specify to which statement he is referring. A party waives an issue where they fail to provide adequate citation to the portions of the record relied upon. Lyles v. State, 834 N.E.2d 1035 (Ind. Ct. App. 2005), trans. denied. The argument is waived. Griffin next contends [c]ounsel failed to object when the State used the fact of two prior convictions under Rule 404(b) to prove guilt of the instant charged offense. Appellant s Brief at 23. Again, Griffin has failed to direct our attention to a place in the record where this was done. Thus, the argument is waived. Lyles v. State, 834 N.E.2d 1035. Griffin contends trial counsel rendered ineffective assistance in failing to interpose an objection when the trial court imposed a sentence that was longer than the ones received by those who physically committed the robbery. Our Supreme Court has indicated that trial counsel need not object to a purported sentencing error in order to preserve the issue for appellate review. See Reed v. State, 856 N.E.2d 1189 (Ind. 2006). Moreover, Griffin has not demonstrated that an objection, if offered, would have been sustained. In order for the failure to object to constitute ineffective assistance of counsel, the claimant must show that the objection in question was one that the trial court would have been required to sustain. Stephenson v. State, 864 N.E.2d 1022, 1035 (Ind. 2007), cert. denied, 128 S.Ct. 1871 (2005). Griffin has not carried this burden. Griffin contends counsel failed to object to an improper probable cause affidavit. 8 Appellant s Brief at 26. This court has previously rejected the claim that a conviction may be overturned by successfully challenging the probable cause affidavit, as indicated in the following: [L]lack of probable cause is not grounds for dismissing a charging information. Flowers v. State, 738 N.E.2d 1051, 1055 (Ind. 2000). Although IC 35-34-1-4 allows a court to dismiss a defective indictment or information upon a motion of the defendant, it makes no provision for dismissal for lack of probable cause. Second, An invalid arrest does not affect the right of the State to try a case nor does it affect the judgment of conviction. Flowers, 738 N.E.2d at 1055 (quoting Felders v. State, 516 N.E.2d 1, 2 (Ind. 1987)). The legality or illegality of an arrest is pertinent only as it affects the admission of evidence obtained through a search incident to arrest and has no bearing upon one s guilt or innocence. Felders, 516 N.E.2d at 2; see also State v. Palmer, 496 N.E.2d 1337, 1340-41 (Ind. Ct. App. 1986). The trial court properly denied Pond s motion to dismiss on the grounds of illegal arrest. Pond v. State, 808 N.E.2d 718, 721 (Ind. Ct. App. 2004) (emphasis supplied), trans. denied. Griffin has not alleged that evidence was obtained as a result of his allegedly illegal arrest. Therefore, even assuming, but without deciding, that the failure to object to the probable cause affidavit constituted deficient performance, Griffin has not demonstrated prejudice and thus has failed to establish that trial counsel rendered ineffective assistance in this respect. See Young v. State, 746 N.E.2d 920. Griffin contends trial counsel rendered ineffective assistance in that [c]ounsel failed to object when minorities were excluded from the jury panel and when the jury venire did not reflect the minority population. Appellant s Brief at 34. Griffin first assails the process used by St. Joseph courts in creating a jury pool based on voter registration. Id. In order to prevail on this argument, some showing is required that an under-representation is due to systematic exclusion of the group in the jury-selection process. Wrinkles v. State, 776 9 N.E.2d 905, 909 (Ind. 2002) (quoting Dye v. State, 717 N.E.2d 5, 19 (Ind.1999)), cert. denied, 531 U.S. 957. Griffin has made no such showing. Moreover, our courts have already rejected this challenge to the manner in which potential jurors are selected in St. Joseph County. See Smith v. State, 658 N.E.2d 910 (Ind. Ct. App. 1995), trans. denied. Therefore, even had trial counsel objected to the make-up of the jury on this basis, the objection would have been denied. The failure to make a meritless objection cannot form the basis of a claim of ineffective assistance of counsel. See Stephenson v. State, 864 N.E.2d 1022. Griffin also contends he received ineffective assistance of appellate counsel. Ineffective assistance claims at the appellate level of proceedings generally fall into three categories: (1) denying access to an appeal; (2) failing to raise issues; and (3) failing to present issues competently. See Bieghler v. State, 690 N.E.2d 188 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). Griffin s first contention, however, falls outside of these traditional categories. He contends appellate counsel rendered ineffective assistance in failing to interview Griffin before submitting the appellate brief in this case. Griffin does not specify what such an interview would have contributed to appellate counsel s understanding of this case or how the presentation of the issues that were addressed on direct appeal would have been enhanced. In other words, Griffin has failed to establish that he was prejudiced by counsel s failure to consult him. There was no ineffective assistance of counsel in this respect. See Young v. State, 746 N.E.2d 920. Griffin s remaining claims of appellate counsel s ineffectiveness fall into the second category, i.e., that appellate counsel failed to present certain issues on direct appeal. In 10 reviewing claims of ineffective assistance of appellate counsel, we use the same standard applied to claims of ineffective assistance of trial counsel. Harris v. State, 861 N.E.2d 1182 (Ind. 2007). The party seeking post-conviction relief must show that appellate counsel s performance fell below an objective standard of reasonableness and that there is a reasonable probability that but for the deficient performance of counsel the result of the proceeding would have been different. Id. When, as here, a petitioner raises a claim of ineffective assistance of appellate counsel for failing to make a claim of ineffective assistance of trial counsel, he faces a compound burden. Ben-Yisrayl v. State, 738 N.E.2d 253 (Ind. 2000), cert. denied, 534 U.S. 1164 ( 2002). If the claim relates to issue selection, the petitioner must demonstrate 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. Id. Thus, the petitioner bears the burden of establishing the two elements of ineffective assistance of counsel separately as to both trial and appellate counsel. Id. We have already determined that Griffin has not proven that he received ineffective assistance from his trial counsel. Because of this, Griffin s claim of ineffective assistance of appellate counsel fails. Therefore, we conclude that the trial court properly denied Griffin s PCR petition. Judgment affirmed. KIRSCH, J., and ROBB, J., concur. 11

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