Download the original WordPerfect Document here
Attorney for Appellant
Mark A. Thoma
Deputy Public Defender
Fort Wayne, Indiana
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Andrew L. Hedges
Deputy Attorney General
INDIANA SUPREME COURT
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Kenneth R. Scheibenberger, Judge
Cause No. 02D0-49608-CF-381
ON DIRECT APPEAL
May 6, 1998
Defendant Phillip Lee was convicted of Dealing In Cocaine,See footnote
a class A felony, and
of being a habitual offender.See footnote
He was sentenced to a total executed term of 80 years. On
appeal, defendant contends that he was denied the effective assistance of counsel to which
he is constitutionally entitled. U.S. Const. amend VI; Ind. Const. art. I, § 13.
We have jurisdiction over this direct appeal because the longest single sentence
exceeds fifty years. Ind. Const. art. VII, § 4; Ind.Appellate Rule 4(A)(7); Buie v. State, 633
N.E.2d 250, 252 (Ind. 1994).
On April 30, 1996, after being caught selling cocaine, a confidential informant met
with a detective in the Allen County Police Department for the purpose of cooperating with
the police. The informant believed he could make a buy of cocaine from defendant and the
detective drove him to the location where the controlled buySee footnote
took place. At trial, the
informant testified that he bought cocaine from defendant. The detective testified at trial
that he monitored the transaction electronically as it occurred. A jury thereafter found
defendant guilty of dealing cocaine and of being a habitual offender.
Defendant's sole issue on appeal is whether he was provided the effective assistance
of trial counsel. We analyze claims of ineffective assistance of counsel according to the
two-part test established in Strickland v. Washington, 466 U.S. 668 (1984). See, e.g.,
Canaan v. State, 683 N.E.2d 227, 229 (Ind. 1997); Lowery v. State, 640 N.E.2d 1031, 1041
(Ind. 1994). First, defendant must show that, in light of all the circumstances, counsel's
performance was outside the wide range of professionally competent assistance. Canaan,
683 N.E.2d at 229 (citing Lowery, 640 N.E.2d at 1041). In order to make such a showing,
defendant must demonstrate that counsel's performance was unreasonable under prevailing
professional norms. Id. Second, the defendant must show adverse prejudice as a result of
the deficient performance. Id. This requires a demonstration that counsel's performance
was so prejudicial that it deprived the defendant of a fair trial. Id. There is a strong pre
sumption that counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Bellmore v. State, 602 N.E.2d 111, 123 (Ind.
1992). An appellant must present strong and convincing evidence to rebut that presumption.
Duncan v. State, 514 N.E.2d 1252, 1253 (Ind. 1987).
In asserting his claim of ineffective assistance of trial counsel, defendant contends
that it was deficient performance for trial counsel not to present witnesses at trial who could
have corroborated defendant's alibi defense.See footnote
Defendant suggests that the jury relied on the
confidential informant in convicting defendant and if trial counsel had presented defendant's
alibi evidence, the informant's credibility could have been erodedSee footnote
and there would have
been a reasonable probability that the outcome would have been different.
Defendant has failed to demonstrate that trial counsel was ineffective.See footnote
As noted, we
presume that counsel rendered adequate assistance and find nothing to rebut the application
of that presumption here. The State presented two eyewitnesses to the crime at trial _ the
confidential informant and an undercover police officer _ who identified defendant as the
individual dealing cocaine. The defendant's ineffective assistance claim is not supported by
any testimony from trial counsel and no alibi witnesses have been identified.See footnote
coupled with the presumption of competence, the existence and testimony of the two
eyewitnesses is sufficient to overcome the unsupported claim of ineffective assistance of
The failure to identify any alibi witnesses is particularly fatal to defendant's claim.
"When ineffective assistance of counsel is alleged and premised on the attorney's failure to
present witnesses, it is incumbent upon the petitioner to offer evidence as to who the
witnesses were and what their testimony would have been." Lowery, 640 N.E.2d at 1047
(citing Wallace v. State, 553 N.E.2d 456 (Ind. 1990)). See Short v. State, 539 N.E.2d 939,
943-44 (Ind. 1989) (where defendant claimed trial counsel was ineffective for failing to
investigate adequately and present defendant's alibi defense, but did not "set forth which
witnesses were not subpoenaed or what they would have said to corroborate his alibi testi
mony"). In his brief, defendant cites to two cases in which this Court found trial counsel to
be ineffective for failing to present alibi witnesses at trial. Williams v. State, 508 N.E.2d
1264 (Ind. 1987); Thomas v. State, 251 Ind. 546, 242 N.E.2d 919 (1969).See footnote
We find both
cases to be distinguishable from the circumstances of this case. In Williams (appeal from
the denial of post-conviction relief) and Thomas (direct appeal), the defendant provided the
Court with the names of alibi witnesses which trial counsel was allegedly aware of and also
presented the Court with alibi testimony. In this case, defendant has failed to do either. See
Smith v. State, 511 N.E.2d 1042, 1044-45 (Ind. 1987) (where defendant testified at post-
conviction that witnesses would testify to his whereabouts the night of the crime but that the
witnesses were not present at the post-conviction hearing, we determined that defendant's
"testimony that these witnesses were available is not sufficient to overcome [defendant's]
burden of persuasion that counsel was ineffective for failure to present the witnesses").
We affirm the judgment of the trial court.
SHEPARD, C.J., and SELBY, and BOEHM, JJ., concur.
DICKSON, J., concurs in result.
Ind. Code § 35-48-4-1(b) (Supp. 1995).
Ind. Code § 35-50-2-8 (Supp. 1995).
"A controlled drug buy is a situation where a narcotics officer or officers, tries to maintain
as much control over the situation in which the buy is going to happen as possible." (R. at 80.)
Our review of the record indicates that a motion to present an alibi defense was never filed.
Indiana Code § 35-36-4-1 (1993) requires a defendant to inform the trial court in writing of defen
dant's intention to offer an alibi defense to a felony charge. When a defendant fails to file a notice
of alibi in accordance with Indiana Code § 35-36-4-1, the trial court shall exclude any alibi evidence
offered by the defendant. Adkins v. State, 532 N.E.2d 6, 8 (Ind. 1989). In this case, since it appears
that no notice of alibi was ever filed, trial counsel would have been prohibited from presenting any
alibi testimony which defendant claims to exist, other than defendant's own testimony. See generally
Campbell v. State, 622 N.E.2d 495, 499 (Ind. 1993); Baxter v. State, 522 N.E.2d 362, 368 (Ind.
1988). While defendant does not assert that trial counsel was ineffective for failing to file a notice
of alibi, we will nevertheless proceed to consider his failure to present alibi witnesses claim.
Defendant concedes that "[trial] counsel, on cross-examination, successfully attacked [the
confidential informant's] credibility," by demonstrating (1) the informant only cooperated with the
police after being arrested for dealing cocaine and being promised that he may not be prosecuted if
he worked with the police and (2) the informant's prior cocaine use. Br. of Appellant at 14-15.
The State asserts that the issue has been waived as a result of defense counsel's failure to
"present a record of proceedings adequate to address his claim." Br. of Appellee at 3. The State
contends that the "unsworn and self-serving assertions" regarding trial counsel's failure to call alibi
witnesses which were provided by defendant during the sentencing hearing are the only evidence that
any alibi witnesses existed and that these assertions were insufficient to preserve defendant's claim
for appellate review. We agree that it is defendant's duty to present this Court with an adequate
record on appeal and when defendant fails to do so, the issue is deemed waived. See Stallings v.
State, 508 N.E.2d 550, 552 (Ind. 1987); Jackson v. State, 496 N.E.2d 32, 33 (Ind. 1986).
In this regard, we take notice of the Davis/Hatton procedure to develop more thoroughly a
record for appeal. See Davis v. State, 267 Ind. 152, 156, 368 N.E.2d 1149, 1151 (1977); Hatton v.
State, 626 N.E.2d 442, 442 (Ind. 1993). A Davis/Hatton request would have terminated or
suspended this direct appeal so that post-conviction relief could be pursued in trial court. State v.
Lopez, 676 N.E.2d 1063, 1068 (Ind. Ct. App. 1997). A Davis/Hatton request may have been
appropriate under circumstances like this case where the claim asserted arguably requires a certain
level of fact finding not suitable for an appellate court. For a recent example of a case in which the
Davis/Hatton procedure was invoked, see Brown v. State, 691 N.E.2d 438, 442 (Ind. 1998)
("counsel sought permission from this Court to return to the trial court for consideration of defen
dant's claims of instructional error and ineffective assistance of trial counsel").
Even assuming that some of the alleged alibi witnesses exist, ineffective assistance of counsel
would not necessarily have been established because trial counsel may have had valid reasons for not
presenting the testimony of such witnesses. See Williams v. State, 508 N.E.2d 1264, 1267 (Ind.
1987) ("Absent a strong showing to the contrary, we normally presume that counsel failed to present
an alibi defense because it was not indicated by the circumstances or, if indicated, was rejected upon
due deliberation."). See, e.g., Zeilinga v. State, 555 N.E.2d 471, 475 (Ind. 1990) (where defendant
claimed that trial counsel was ineffective for not presenting an alibi defense, a pretrial hearing
conducted in the case revealed that counsel rejected defendant's request to present an alibi defense
because the witness had no knowledge of defendant's whereabouts at the time the crime was
committed and the court concluded that counsel "had taken all reasonable steps to attempt to
establish alibi evidence but was unable to do so"); Brewer v. State, 496 N.E.2d 371, 373 (Ind. 1986)
(where defendant unsuccessfully claimed he was prejudiced because trial counsel ineffectively elicited
weak testimony from alibi witnesses after defendant advised trial counsel that the alibi evidence was
untrue but insisted upon trial counsel presenting such testimony).
We note that Thomas v. State, 251 Ind. 546, 242 N.E.2d 919 (1969), was decided before
the Strickland v. Washington, 466 U.S. 668 (1984), standard on ineffective assistance of counsel was
Converted from WP6.1 by the Access Indiana Information Network