Ritchie v. State

875 N.E.2d 706

Benjamin RITCHIE, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 49S00-0409-PD-420.

Supreme Court of Indiana.

November 8, 2007.

Joseph Cleary, Brent Westerfeld, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Stephen R. Creason, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

RUCKER, Justice.

Summary

Benjamin Ritchie was convicted of murder, possession of a handgun by a serious violent felon, auto theft, and resisting law enforcement in connection with the 2000 shooting death of Beech Grove police officer William Toney. The trial court accepted the jury's recommendation for a sentence of death for the murder conviction and sentenced Ritchie to a total executed term of twenty years for the remaining convictions. On direct appeal, we affirmed Ritchie's conviction and sentence of death. Thereafter Ritchie filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. He now appeals that denial raising several issues for our review, some of which are waived.¹ We address the remaining issues, which we rephrase as follows: (1) whether Ritchie was denied the effective assistance of trial counsel; (2) whether Ritchie was denied the effective assistance of appellate counsel; and (3) whether he received a fair post-conviction hearing. We affirm the post-conviction court.

Facts²

A recitation of the essential facts in this case was set forth in our opinion on direct appeal as follows:

On September 29, 2000, around 7:00 p.m, Ritchie and two others stole a white Chevrolet Astro van from a gas station in Beech Grove. The theft was reported and police were dispatched to the scene where Beech Grove police officer Matt Hickey filed a stolen vehicle report. Approximately two hours later, Hickey was en route to a traffic accident scene and recognized the stolen van as Ritchie and one of his accomplices drove by. After confirming by radio that the van bore the license plate of the stolen vehicle, Hickey pursued, joined by officers Robert Mercuri and William Toney. After a short chase, the van pulled into the yard of a residence where Ritchie and his companion jumped out and ran in opposite directions. Officer Toney pursued Ritchie on foot, and ultimately Ritchie turned and fired four shots, one of which struck Toney in the chest. Toney died at the scene.

Ritchie v. State, 809 N.E.2d 258, 261 (Ind. 2004), cert. denied, 546 U.S. 828, 126 S.Ct. 42, 163 L.Ed.2d 76 (2005).

Procedural History

The State charged Ritchie with murder, unlawful possession of a firearm by a serious violent felon as a Class B felony, auto theft as a Class D felony, two counts of resisting law enforcement as Class D felonies, and carrying a handgun without a license, a Class C felony.³ Tr. at 7. The State sought the death penalty based on two aggravating circumstances: (1) the victim of the murder was a law enforcement officer acting in the course of duty, Ind.Code § 35-50-2-9(b)(6)(A), and (2) at the time the murder was committed Ritchie was on probation after receiving a sentence for the commission of a felony. I.C. § 35-50-2-9(b)(9)(C).

Trial was held from July 31 through August 20, 2002. Prior to voir dire, Ritchie pleaded guilty to the serious violent felon in possession of a handgun charge. The jury convicted him on the remaining counts and recommended the death penalty for the murder conviction. The trial court accepted the jury's recommendation and sentenced Ritchie to death for the murder conviction. Tr. at 2909. As for the remaining counts, the trial court sentenced Ritchie as follows: (1) twenty years for the unlawful possession of a firearm as a serious violent felon, (2) three years for auto theft, (3) three years for resisting law enforcement, as a Class D felony, and (4) one year for resisting law enforcement, as a Class A misdemeanor,⁴ to be served concurrently. Id. at 2908-09.

On direct appeal, we affirmed Ritchie's convictions and death sentence. Thereafter, Ritchie filed a Petition for Post-Conviction Relief, which the post-conviction court granted in part⁵ and denied in part after a hearing. This appeal followed. Additional facts are discussed below as necessary.

Standard of Review for Post-Conviction Proceedings

The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. To prevail from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993). Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court's legal conclusions, "[a] post-conviction court's findings and judgment will be reversed only upon a showing of clear error — that which leaves us with a definite and firm conviction that a mistake has been made." Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citation omitted).

Standard of Review for Ineffective Assistance of Counsel

Most of Ritchie's claims fall under the general heading of the ineffective assistance of his trial and appellate lawyers. To establish a post-conviction claim alleging violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). First, a defendant must show that counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This requires a showing that counsel's representation fell below an objective standard of reasonableness and that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Id. Second, a defendant must show that the deficient performance prejudiced the defense. Id. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, meaning a trial whose result is reliable. Id. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. Further, counsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. Ben-Yisrayl, 729 N.E.2d at 106.

Discussion

I. Ineffective Assistance of Counsel — Guilt Phase

Ritchie raises two allegations of ineffective assistance during the guilt phase of trial: (A) "Failure to Retain Appropriate Expert Assistance" and (B) "Failure to Move for Suppression of Ritchie's Videotaped Statements." Br. of Appellant at 66, 71.

A. Expert Assistance

The State's expert conducted a "laser trajectory analysis" to support the State's theory that Ritchie killed Officer Toney while lying in wait. At trial, Ritchie's defense team sought to undermine the State's "lying in wait" theory and advance the defense's theory that Ritchie acted recklessly in firing his handgun and did not knowingly or intentionally kill Officer Toney.⁶ Br. of Appellant at 67. Consequently, rebutting the State's evidence on the operation of the handgun Ritchie used in the shooting — a Glock Model 26 — and the trajectory of the bullets became an important component of Ritchie's defense. Tr. at 1637-43. To assist at trial, defense counsel retained the services of Wayne Hill, who held himself out as a crime scene reconstructionist and ballistics expert.⁷ Problems arose during a pre-trial deposition concerning Hill's asserted professional qualifications and articles he allegedly published. Hill's deposition testimony was also inconsistent with the report he had previously given to the defense. According to one of Ritchie's trial counsel, the prosecutor "absolutely destroyed this man's credibility as a witness and I might add fairly under the rules." P-Cr. at 170.

One of Ritchie's lawyers, Kevin McShane, concluded that he could not rely on Hill as a witness and that his testimony added no value to the defense. Id. at 171. Counsel did not consult with or retain another ballistics or reconstruction expert. Instead, the defense team decided the best strategy was to rely upon the testimony of the State's crime scene investigator, Mickey French. McShane knew French to be a "straight shooter" and a "real honest expert." Id. at 173. Counsel believed that favorable evidence to support their theory of the case could be elicited from French on direct as well as during cross-examination. French's testimony at trial did not exclude the defense theory of events.

Ritchie argues the failure to obtain another expert amounted to ineffective assistance of counsel. At the post-conviction hearing, Ritchie presented two experts: John Nixon and James Sobek. The post-conviction court found Nixon's and Sobek's testimony differed from that of French but not significantly so. App. at 454. For example, Nixon's testimony differed from French's regarding the relative safety of the handgun and a person's ability to accurately aim the gun at night. Id. Nixon offered anecdotal evidence that some Glock handguns similar to Ritchie's have accidentally discharged but acknowledged there is no reason to believe the gun in this case accidentally discharged four times. Becaus...