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
SUPREME COURT OF INDIANA
JOHN WESLEY, JR., )
) Supreme Court Cause Number
Appellant (Petitioner ), ) 27S04-0201-PC-10
STATE OF INDIANA, ) Court of Appeals Cause Number
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
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 Isoms 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 hes going
to kill me. R. at 215.
See footnote 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;See footnote 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 Isoms 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 oclock, 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 Isoms 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.
See footnote 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 Isoms psychiatric records.
Dating to 1980, the records reveal treatment Isom periodically received for psychiatric
After conducting a hearing, the post-conviction court denied Wesleys petition. On review
the Court of Appeals reversed concluding, there is a reasonable probability that, had
trial counsel obtained and used Isoms 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), rehg 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 courts 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 courts findings and judgment only upon a showing of clear errorthat 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).
Wesley contends his trial counsel rendered ineffective assistance for failing to obtain and
use Isoms 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 McDonalds
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.
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 Petr-Appellant at 17. In addressing this claim the post-conviction
Trial counsel was not ineffective for failing to present Isoms 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
[Wesleys] 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
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 Wesleys 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 Wesleys own testimony, that he substantially interfered with Isoms
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 counsels performance was deficient. Strickland, 466 U.S. at
687. This requires showing that counsels 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 counsels 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 counsels 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 Wesleys 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 Isoms 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, Isoms psychiatric records were only marginally relevant.
Counsels representation cannot be deemed to have fallen below an objective standard of
reasonableness by failing to obtain and use marginally relevant evidence.
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 courts judgment.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
R. refers to the trial court record. P-C R. refers
to the post-conviction court record. Ex. A refers to Isoms psychiatric records
introduced at the post-conviction hearing as Petitioners 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
Footnote: This charge arose from Isoms 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.
Footnote: The guilty verdicts for intimidation and resisting law enforcement related to
Wesleys confrontation with the police. They are not challenged in this appeal.
Footnote: 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 Wesleys trial counsel
was ineffective for failure to obtain them in 1991.
Footnote: Wesley also claims Isoms psychiatric records show a history of self
injury. Br. of Petr-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. Isoms
sister informed hospital staff that the cut may have been a self-inflicted injury.
Ex. A at 12.