The Indiana Court of Appeals declined to find an attorney provided ineffective assistance of trial counsel to a man on trial for the second time because that attorney didn’t defend the case in the same manner as did the attorney on the first trial.
In Keith Woodson v. State of Indiana, No. 49A02-1108-PC-768, Keith Woodson appealed the denial of post-conviction relief relating to the representation of private attorney Paul Harper at Woodson’s second trial for murder and carrying a handgun without a license. Woodson was represented by private attorney Kimberly DeVane at his first trial, which resulted in a mistrial. DeVane withdrew her representation on the second trial due to payment concerns.
Unlike what DeVane did at the first trial, Harper didn’t question either of the two eyewitnesses on specific matters, such as their having told a detective that the person they identified as the shooter was known as “PG,” which is Woodson’s nickname. At the second trial, the state was able to present additional evidence it didn’t have at the first trial provided by an acquaintance of Woodson’s. Shelby Stone was being transported with Woodson from jail to court and claimed that Woodson told him something about the murder that would mean Woodson murdered the victim as revenge. Woodson was found guilty at his second trial.
“An argument could be made that Harper’s cross-examination of Owens and Johnson was not as thorough as DeVane’s in the first trial. However, our job here is not to grade Harper’s performance as compared to DeVane’s,” wrote Judge Michael Barnes. “Additionally, juries are not interchangeable machines but instead are made up of twelve unique individuals, and there was nothing precluding the second jury from weighing the evidence differently than the first jury.”
The appellate court found that Harper did question the eyewitnesses extensively on their identification of Woodson as the killer, and he did attempt to impeach their credibility, just not in the same manner as DeVane, wrote the judge.
The COA also declined to find that Harper was ineffective for failing to procure the services of an eyewitness identification expert to assist with and testify at the second trial.