7th Circuit affirms judgment that trial counsel’s failure to object was ‘reasonable strategic choice’

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The Indiana Court of Appeals correctly denied a convicted child molester’s post-conviction relief petition after finding his counsel behaved competently, the 7th Circuit Court of Appeals affirmed Thursday.

According to court records, in June 2008, Donald Pierce was charged with three counts of Class A felony child molesting and one count of Class C felony child molesting and being a repeat sexual offender. The jury convicted Pierce on all counts.

There was no physical evidence of the molestation and J.W., Pierce’s ex-fiancé’s daughter, was the only eyewitness.

The state sought to prove its case through the testimony of J.W. and the several adults in whom she confided.

The state’s case consisted of seven witnesses: J.W.’s paternal grandfather, J.W.’s father, an investigating sheriff’s deputy, J.W.’s mother, J.W., and two medical witnesses.

Most of these witnesses testified to what and when J.W. told them about Pierce’s conduct. Pierce’s trial counsel did not object to the witnesses.

On cross-examination, Pierce’s trial counsel questioned J.W.’s mother about her daughter’s “changing story.”

J.W.’s mother stressed that J.W. was “not a liar,” but simply “didn’t want to tell me all the rest of the details.”

When J.W. testified she stated that in her first interview she didn’t give all the details because she didn’t want to hurt her mother and that the second interview gave a truthful account of what happened to her.

On cross-examination, Pierce’s trial counsel highlighted the inconsistencies in J.W.’s story. Counsel asked whether J.W. ever spoke with her father or mother about the conduct, to which J.W. responded that she did not “go into details” with them.

Counsel also repeatedly asked whether the varying versions of J.W.’s testimony were lies, and J.W. confirmed that anything inconsistent with her second interview was inaccurate.

When counsel asked J.W. which parts of her story she lied about, J.W. responded, “the part of me being asleep.”

During Pierce’s closing statement, trial counsel argued that it was plausible for a child to fabricate a molestation story.

The evidence, counsel stressed, was “essentially one person’s many, many versions” of what transpired.

Pierce was convicted on all four counts of child molestation and was sentenced to 124 years imprisonment.

In 2010, the Court of Appeals of Indiana affirmed Pierce’s convictions, but remanded the trial court to correct a sentencing error.

Pierce then appealed to the Indiana Supreme Court, which affirmed his convictions but revised his sentence to 80 years.

Pierce subsequently pursued post-conviction relief, relying in part on an Indiana hearsay doctrine.

He first petitioned pro se for post-conviction relief in the trial court in 2012 and amended his petition in 2017 after obtaining counsel.

Among other alleged errors, Pierce invoked the drumbeat rule to argue that he received ineffective assistance of counsel due to trial counsel’s failure to object to the sequence of the adult witnesses’ hearsay testimony.

The trial court denied Pierce’s petition, noting his trial counsel had observed the trial judge in similar cases and chose not to object in order to downplay the testimony.

The court determined her failure to object to the drumbeat testimony was a reasonable strategic choice that did not raise to the level of constitutionally deficient performance.

The court also found Pierce had not shown he had suffered prejudice as a result of his trial counsel’s failure to object.

A split Court of Appeals affirmed the trial court’s judgment. Pierce appealed to the Indiana Supreme Court, which denied review.

Pierce then brought a federal habeas petition to the U.S. District Court for the Southern District of Indiana.

The district court found the appellate court reasonably applied clearly established law in determining that Pierce’s trial counsel strategically chose not to object to the testimony and therefore did not provide deficient representation.

However, the district court granted Pierce a certificate of appealability and cited the dissent from the appellate court.

Pierce claims that the appellate court made two interrelated errors under § 2254(d).

First, he argued that the appellate court’s decision was “based on an unreasonable determination of facts” because it unreasonably found that trial counsel’s failure to object was a knowing strategic decision.

“Without clear and convincing evidence to the contrary, it was not unreasonable for the Indiana Court of Appeals to find that Pierce’s counsel’s failure to object at trial was strategic,” Judge Amy St. Eve wrote.

Secondly, Pierce claimed that the appellate court unreasonably applied established Supreme Court precedent in Strickland v. Washington, 466 U.S. 668, 687 (1984).

“Pierce’s counsel’s stated trial strategy was to paint J.W. as a liar by highlighting the inconsistencies in her accounts over time. Pursuant to that strategy, trial counsel elicited repeated admissions from the adult witnesses that J.W.’s stories were inconsistent,” St. Eve wrote. “A competent attorney might well have determined that culminating the trial with J.W.’s testimony rather than beginning with it helpfully enabled the defense to undermine her credibility before she took the stand.”

The 7th Circuit affirmed the district court and denied the writ because the state appellate court offered a reasonable argument that counsel behaved competently.

The case is Donald A. Pierce v. Frank Vanihel, 22-2073.

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