Rucker, J.
On a claim of ineffective assistance of trial counsel, Trondo L. Humphrey appeals the denial of his petition for post-conviction relief.
Humphrey was convicted of murder in 1996 and sentenced to a term of sixty years. … The underlying facts as set forth on direct appeal before this Court are as follows:
On the night of April 28-29, 1995, Benjamin Laughlin and Stephen Sites were driving around a neighborhood in Anderson looking for crack cocaine. … Believing the three to be drug dealers, Laughlin told Sites to pull into the alley. One of the three approached the truck on the passenger side and Laughlin asked the dealer to get in the cab to discuss a cocaine sale. As Sites drove, Laughlin and the dealer quickly exchanged words, the dealer drew a gun, Laughlin grabbed it, and the gun discharged. … Sites drove Laughlin to a nearby hospital where he eventually died from the wound. …
Donnie Smith testified that he was drinking and smoking marijuana with the defendant and Roosevelt Brooks on the night of the murder in Brooks’ garage near the alley where the shooting occurred. … At some point a truck stopped outside the garage and the defendant went outside to greet it, indicating to Smith that he believed the occupants were looking for cocaine. Smith heard the door of the truck open and close in the alley but testified that he did not hear any shots or actually see the defendant approach or enter the truck. …
On June 16, 1995, Brooks, while in jail on an unrelated charge, gave an unsworn written statement to a police detective about the events of that night. According to the statement, Brooks was in his garage with someone he identified as the defendant from a photographic lineup containing pictures of six black males. The defendant went out to a blue truck with “white guys” inside, Brooks heard a “noise,” and the defendant returned soon thereafter, stating that he had shot one of the men. At trial, Brooks testified that he knew the defendant but was not with him or Smith on the night of the shooting. Brooks repudiated the statement, which had been admitted to impeach the credibility of his courtroom version, and testified in essence that it was fabricated due to police pressure.
Humphrey v. State, 680 N.E.2d 836, 837-38 (Ind. 1997) [hereinafter Humphrey I].
Humphrey appealed raising several claims, including: (1) the trial court abused its discretion when it admitted into evidence Brooks’ statement regarding Humphrey’s participation in the murder; and (2) the trial court erred when it did not admonish the jury to consider the statement for impeachment purposes only. This Court held that Brooks’ prior statement was admissible for impeachment purposes, and regarding the admonishment we said, “[h]ad a proper objection been lodged to the instruction, the court would have been required to entertain it.” Humphrey I, 680 N.E.2d at 840. Ultimately, we affirmed the conviction noting, among other things, “[t]here is no claim of ineffective assistance of trial or appellate counsel raised in this appeal.”
Fifteen years later Humphrey filed a pro se petition for post-conviction relief which was later amended by counsel. The amended petition alleged trial counsel rendered ineffective assistance for the following reasons: (1) failing to object to the admission of Brooks’ unsworn statement on hearsay grounds; (2) failing to request an admonishment that the jury may consider Brooks’ unsworn statement for impeachment purposes only; (3) failing to object to and improperly endorsing the trial court’s erroneous instruction on prior inconsistent statements; and (4) failing to offer in its place an instruction that reflected a correct statement of the law.
The State responded denying Humphrey’s substantive claims and also asserting they were barred by the doctrine of laches. After a hearing, the post-conviction court concluded that Humphrey’s claims were not barred and denied relief on the merits. On review, in a unanimous opinion, the Court of Appeals agreed with the post-conviction court on the issue of laches, but reversed on the substantive claims. In so doing the Court concluded, among other things, “Humphrey was prejudiced by counsel’s errors that allowed the jury to consider as substantive evidence the only evidence that identified Humphrey as the shooter.” Humphrey v. State, 56 N.E.3d 84, 94 (Ind. Ct. App. 2016) [hereinafter Humphrey II]. We agree with our colleagues on the Court of Appeals and previously granted transfer to explore further Humphrey’s substantive claims. …
“The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, “the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687-88). To satisfy the second prong, “the defendant must show prejudice: a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel’s errors, the result of the proceeding would have been different.”
In its findings and conclusions, the post-conviction court determined that trial counsel did not render deficient performance by failing to object on hearsay grounds to the admission of Brooks’ prior inconsistent statement. Similarly, the post-conviction court determined trial counsel did not render deficient performance by failing to request an admonishment based on Evidence Rule 105, or failing to object to the trial court’s final instruction on prior inconsistent statements or tender an instruction on prior inconsistent statements. …
The State elaborates on the post-conviction court’s findings contending counsel engaged in reasonable trial strategy. … This contention is not supported by the record. After the unsworn statement had been admitted, defense counsel made repeated references to it throughout the remainder of the trial. It was defense counsel—not the State—who read aloud in court the portion of Brooks’ unsworn statement that identified Humphrey as the shooter.
In closing argument, it was defense counsel who highlighted the most damaging piece of information from Brooks’ unsworn statement to the jury. …
In similar fashion, the State also contends defense counsel wanted Brooks’ unsworn statement admitted to comport with the “secondary trial strategy . . . to focus on the prior inconsistent statements to sow reasonable doubt.” … The State argues defense counsel “retreated to the reasonable secondary defense of not drawing further attention to evidence that was going to be admitted[,]” but also contends counsel “decided to meet that statement head-on and use it to show the inconsistencies in the State’s key witnesses.” …These two proffered strategies advanced by the State directly oppose each other. It defies credulity to say on the one hand that defense counsel strategically elected not to mount a hearsay objection or request a limiting instruction to refrain from drawing attention to Brooks’ unsworn statement, but insist on the other hand that counsel wanted to “use it to show the inconsistencies in the State’s key witnesses.” …
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At trial, defense counsel lodged an objection to the admission of Brooks’ written statement solely based on an improper foundation. … At no point did defense counsel object based on hearsay. … By failing to raise a proper objection counsel’s conduct fell below an objective standard of reasonableness and was thus deficient.
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Even in instances where otherwise impermissible hearsay is admitted for the limited purpose of impeachment, “if a defendant believes there is a danger that a jury could use a statement as substantive evidence, then it is incumbent upon the defendant to request that the jury be admonished that the statement be used to judge the witness’s credibility only.” Small v. State, 736 N.E.2d 742, 746 (Ind. 2000) (emphasis added). That never occurred here. … By failing to request an admonishment or a limiting instruction counsel performed deficiently.
Humphrey contends trial counsel erred by permitting the trial court to improperly instruct the jury regarding the use of Brooks’ unsworn statement as substantive evidence of his guilt.
… At the time of Humphrey’s trial, this instruction mirrored the pattern jury instruction for prior inconsistent statements. … However, prior to trial, the Indiana Rules of Evidence were adopted and this Court expressly overruled prior jurisprudence permitting the use of prior inconsistent statements as substantive evidence. … This was an incorrect statement of the law. Defense counsel was given the opportunity, yet failed to object to this instruction. … Accordingly, Humphrey has shown that counsel performed deficiently by allowing the trial court to instruct the jury with an incorrect statement of the law.
For all the reasons set forth above we conclude Humphrey has satisfied the first prong of the two-part test articulated in Strickland v. Washington, namely Humphrey has shown “deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” …
Deficient performance notwithstanding, Humphrey must also satisfy the second prong of the Strickland test, … Humphrey must demonstrate that but for counsel’s errors, there was a reasonable probability he would not have been convicted of murder.
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… Brooks’ unsworn statement was the only evidence identifying Humphrey as the shooter. To suggest that the jury’s decision was not impacted by this evidence ignores the trial court’s instruction to the contrary.
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On the record before us it is abundantly clear that the only evidence identifying Trondo Humphrey as the person committing the murder of Benjamin Laughlin was Brooks’ out-of-court written statement improperly admitted at trial as substantive evidence. …
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Even though Humphrey closely fit the description of the perpetrator, without Brooks’ unsworn written statement the evidence supporting that he was the shooter is entirely speculative and circumstantial. … But mere presence at the crime scene, without more, cannot sustain a conviction. …
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We conclude that petitioner has shown the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. We thus reverse the judgment of the post-conviction court and remand this cause for a new trial.
Rush, C.J. and David. J., concur. Massa, J., concurs with separate opinion, in which Slaughter, J., concurs.
Massa, J., concurring.
Twenty-two years have passed since Benjamin Laughlin was murdered in 1995, but now the man convicted of killing him will get a new trial; an outcome caused by a perfect storm of error by all involved—the trial court, the prosecutor, and the defense—resulting in a collapse of the system. I fully concur with Justice Rucker’s dispassionate legal analysis regarding ineffective assistance of counsel, but I find the remedy so regrettable and avoidable that I write separately to elaborate on the mistakes made and opportunities missed, and their impact on the question of laches.
The breakdown in this case begins with a situation not unusual in criminal proceedings: a witness identifying a defendant, then, for one reason or another not difficult to imagine, later recanting his statement. Here, it was Roosevelt Brooks’ unsworn pretrial statement identifying Humphrey, and Brooks’ subsequent denial at trial. The State admitted, as Exhibit L, Brooks’ prior inconsistent statement. The defense objected, not as to hearsay, but foundation, and no admonishment was sought as to the statement’s limited admissibility. This was the first mistake. Brooks’ statement was the only evidence directly identifying Humphrey as the shooter and was damning to Humphrey’s case.
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… Nevertheless, Humphrey did not petition for post-conviction relief until 15 years after his direct appeal—a delay that might suggest a successful laches defense for the State if adequately further developed.
The State sought to prove the affirmative defense of laches to bar Humphrey’s petition. The State raised the issue in its pleadings, offered some little evidence at the post-conviction hearing, and even now continues to argue this issue in briefing on appeal. However, astonishingly, the State failed to include this issue in its proposed findings to the post-conviction court, which adopted the State’s proposed findings and conclusions verbatim. …
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While the State now offers many of these arguments on appeal, it is too late. The State has the burden of proving laches as an affirmative defense, thus the judgment regarding laches will be affirmed unless clearly erroneous. … Given this standard and the record before this Court, we are compelled to affirm the post-conviction court’s determination that Humphrey’s petition was not barred by laches. …
Slaughter, J., concurs.