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Thursday, December 01, 2016

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (1):

In Corey Middleton v. State of Indiana , a 16-page opinion (including a separate "concur in result with opinion"), Judge Altice writes:

Corey Middleton appeals from the denial of his petition for post-conviction relief. He asserts that the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel. * * *

As noted previously, there was overwhelming evidence to support his convictions. Judgment affirmed.

Bradford, J., concurs.
Pyle, J., concurs in result with opinion. [that begins, on p. 14]

I concur with my colleagues holding, but I write separately because I believe Middleton’s counsel’s performance fell below current objective professional norms and also prejudiced Middleton. During voir dire, Middleton’s counsel properly explored the issue of race with prospective jurors. However, counsel referred to his absent client as a “Negro.” In a sterile environment, this word might not be any more offensive than the next. But, we do not live in a sterile environment. Words have power. Words convey explicit and implicit meanings they have acquired. While many dictionaries may still define the term “Negro” as “a person of black African origin or descent[,]” it is also cross referenced with the vile slur known euphemistically as “the N-word.” OXFORD ENGLISH DICTIONARY, http://www.oed.com (last visited November 21, 2016) [hereinafter OXFORD ENGLISH DICTIONARY]. * * *

Before evidence had even been introduced, potential jurors saw and heard Middleton’s attorney, the person who was supposed to be his advocate, refer to Middleton in a racially offensive manner. While there is no evidence that counsel intended harm to Middleton, the harm was nonetheless inflicted. Middleton was presented to potential jurors in a racially offensive manner. For these reasons, I believe counsel’s performance during voir dire was deficient and also prejudiced Middleton. Nonetheless, in order for us to reverse the trial courts denial of Middleton’s petition, we would have to believe that “but for counsel’s errors, the result of the proceeding would have been different.” Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010). In this case, the evidence against Middleton was considerable. As a result, I am not convinced that the result would have been different.

NFP civil decisions today (1):

Christopher Pete v. Ray Forrester (mem. dec.)

NFP criminal decisions today (1):

Albert Towne v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on December 1, 2016 11:05 AM
Posted to Ind. App.Ct. Decisions