Marques Love v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Feb 05 2015, 8:55 am 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Hilary Bowe Ricks Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marques Love, February 5, 2015

Appellant-Petitioner, Court of Appeals Cause No. 49A02-1406-PC-436 v. Appeal from the Marion Superior Court. The Honorable Sheila A. Carlisle, State of Indiana, Judge. Appellee-Respondent The Honorable Stanley E. Kroh, Commissioner. Cause No. 49G03-0611-PC-218901

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 1 of 7 [1] Marques Love appeals the denial of his petition for post-conviction relief. He

argues that he received ineffective assistance of counsel because trial counsel

did not introduce evidence that Love might have been suffering from post-

traumatic stress disorder at the time of the crime. Finding that trial counsel was

not ineffective, we affirm.

Facts [2] The Facts underlying Love’s case are as follows:

November 14, 2006, Love encountered Scoey Scott at a gas station in Indianapolis, Indiana. Previously, Love and Scott were good friends and lived together, but had a falling out and no longer were friends. Love and Scott argued, and Love got in his vehicle and left the gas station. On his way home, Love realized he forgot some items at the gas station, and returned. Love parked his car near Scott's vehicle. As Love exited his vehicle, he heard a noise and believed that Scott had thrown rocks at Love's vehicle. A physical altercation ensued. At some point, Love drew a gun and shot Scott, who fell to his knees. Love then fired at least two more shots at Scott, and Scott fell all the way to the ground and died before medical help arrived. Love then left the scene, but later returned with his father and was arrested for Scott's murder. On November 16, 2006, the State charged Love with murder. On December 15, 2006, Love filed a notice of self-defense. Love waived his right to a jury trial, and on October 25 and 26, 2007, the trial court held a bench trial, after which it found Love guilty of murder. Love v. State, No. 49A02-0712-CR-1061, slip. op. at p. 2-5 (Ind. Ct. App. June 18,

2008). The trial court imposed a sixty-year sentence. [3] On June 18, 2008, a panel of this Court affirmed Love’s conviction and

sentence. See Love, No. 49A02-0712-CR-1061, slip. op. at p. 2-5. Love filed his

first petition for post-conviction relief on September 14, 2009, and he afterwards Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 2 of 7

filed several amended petitions, the last of which was filed on May 16, 2014.

On July 17, 2012, the post-conviction court held a bifurcated hearing. That

hearing was concluded on January 15, 2013, and the post-conviction court filed

its findings of facts and conclusions of law denying Love post-conviction relief

on June 12, 2014. Love now appeals.

Discussion and Decision [4] Love argues that the post-conviction court erred in denying his petition for post-

conviction relief. Post-conviction proceedings are not “super appeals” through

which convicted persons can raise issues they failed to raise at trial or on direct

appeal. Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012). Rather,

post-conviction proceedings afford petitioners a limited opportunity to raise

issues that were unavailable or unknown at trial and on direct appeal. Davidson

v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction petitioner bears the

burden of establishing grounds for relief by a preponderance of the evidence.

Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). To prevail on appeal from the

denial of post-conviction relief, the petitioner must show that the evidence as a

whole leads unerringly and unmistakably to a conclusion opposite that reached

by the post-conviction court. Id. at 643-44. [5] Where, as here, the post-conviction court makes findings of fact and

conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we

cannot affirm the judgment on any legal basis, but rather, must determine if the

court’s findings are sufficient to support its judgment. Graham v. State, 941

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N.E.2d 1091, 1096 (Ind. Ct. App. 2011). We will not reweigh the evidence or

judge the credibility of witnesses, and will consider only the probative evidence

and reasonable inferences flowing therefrom that support the post-conviction

court’s decision. Id. [6] Love contends that his trial counsel was ineffective because he did not

introduce evidence that Love might have been suffering from post-traumatic

stress disorder at the time of the crime.1 When reviewing ineffective assistance

of counsel claims, we begin with the presumption that counsel rendered

adequate legal assistance. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002). To

rebut this presumption, the petitioner must demonstrate both that counsel’s

performance fell below an objective standard of reasonableness based on

prevailing professional norms, and that there is a reasonable probability that,

but for counsel’s errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Many claims of

ineffective assistance of counsel can be resolved by a prejudice inquiry alone.

Carr v. State, 728 N.E.2d 125, 131 (Ind. 2000). [7] Love, who was shot a few months prior to the commission of his crime, argues

that evidence that he was suffering from post-traumatic stress disorder as a

1 In his petition for post-conviction relief, Love also argues that counsel was ineffective for failing to investigate whether Love was competent at the time of trial, but he does not raise this issue in this appeal. In its brief, the State argues that trial counsel could not be deemed ineffective for failing to present an insanity defense. However, Love does not argue that trial counsel should have presented an insanity defense. Rather, he argues that trial counsel should have investigated the possibility that he suffered from post-traumatic stress disorder in order to present evidence of the disorder at trial to bolster the self-defense strategy.

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result of that shooting should have been introduced to bolster his self-defense

strategy. He argues that the introduction of such evidence would likely have

changed the outcome of the case because it would have shown that Love’s

subjective belief that he needed to use force to protect himself was reasonable.

At the post-conviction hearing, trial counsel stated that he was aware that Love

had recently been shot. PC Tr. p. 36. However, he testified that he had no

reason to be concerned regarding Love’s competency and that the issue of

Love’s sanity was never raised. PC Tr. p. 67-8. [8] Moreover, trial counsel did present evidence of the traumatic effect of the

robbery incident during which Love was shot. He introduced evidence,

including medical records, to show that the injuries that Love had sustained

from being shot left Love in a weakened condition. Trial counsel also

attempted to show that the experience made Love’s fear reasonable, which

bolstered the claim of self-defense. At closing argument, trial counsel stated:

The other thing that we need to consider, also, in terms of how Marques perceived things and whether he was reasonable or not, was the fact that on August -- in August of that year, he was also the victim of a crime. And he went through, you know, probably ten or fifteen minutes of testimony of the grueling event that occurred, where he was suspicious of somebody that came up to the car; he thought there was a situation where he might need to protect himself, but he hesitated. And when he hesitated, he was shot. And he wasn’t able to get any of those shots off until afterwards. And you heard about the distress that he was in afterwards. And I’m sure that incident played a part in Marques’ thinking when he was involved in this fight for his life -- at the speedway that day.

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Tr. p. 418. Therefore, trial counsel did attempt to show that Love had been

affected by the shooting in which he was injured and that the shooting might

have affected his mental state on the day Love committed his crime. [9] While it is true that trial counsel did not present evidence regarding post-

traumatic stress disorder and did not investigate whether Love might be

suffering from the disorder, Love has presented no evidence that he had post-

traumatic stress disorder or that his crime was a result of the disorder. Indeed,

the only document that Love produced regarding post-traumatic stress disorder

is a report from the Social Security Administration that mentions that Love

might have possible symptoms of post-traumatic stress disorder. However, the

report does not address issues of insanity or incapacity, and it states that Love

was “a good historian” and that his “verbalizations are clear, fluent, and

relevant.” Defendant’s Ex. B. Additionally, the report is the result of an

evaluation taken on January 2, 2007, after Love had been incarcerated

following his shooting of Scott, and there is no way of knowing if possible post-

traumatic stress symptoms Love may have been exhibiting might be the result

of being shot, of shooting Scott, or of the adjustment to incarceration. Id. [10] We cannot say that Love’s trial counsel was ineffective for failing to present

evidence of post-traumatic stress disorder resulting from the August incident

when Love was shot. Counsel presented evidence regarding the effect the

shooting might have had on Love’s mental state in regard to self-defense. And

trial counsel testified that he had no reason to investigate Love’s mental

condition, stating that if he had thought a mental evaluation was appropriate,

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he would have requested one. PC Tr. p. 76. We find that trial counsel was not

ineffective. [11] The judgment of the post-conviction court is affirmed.

Vaidik, C.J., and Riley, J., concur.

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