LUELLEN v. STATE (2024)

MEMORANDUM DECISION

[1] Johnnie L. Luellen, Jr., appeals the denial of his petition for post-conviction relief. We affirm.

Facts and Procedural History

[2] The relevant facts as discussed in Luellen's direct appeal follow:

In the summer of 2016, eleven-year-old J.J., her mother, and J.J.’s younger sister were living with J.J.’s older sister, Porche, and Porche's husband, Luellen. J.J. enjoyed a good relationship with Luellen, who would take care of J.J. and her sister while their mother worked the nightshift.

At one point between June 1, 2016, and August 1, 2016, Luellen came up behind J.J. when she was washing the dishes and put his arms around her, holding her too close and pushing up against her, making her uncomfortable. On multiple occasions after that Luellen would massage J.J.’s back while she was lying on the couch. He would move his hands down to touch her bottom and would touch her “front area.” Luellen would rub J.J.’s body with his hands for minutes.

One evening during the summer of 2016, J.J. was crying because she missed her mother. Luellen sat down on the couch and tried to comfort her. He handed her a tissue to wipe her face. When J.J. went into the kitchen to throw the tissue away, Luellen took her hand and brought her into the laundry room where he started kissing her neck, rubbing her back and “front,” while assuring her that he was trying to make her feel better. When J.J. heard Luellen unbuckle his pants, she tried to run away and scream. Luellen put his hand over her mouth, preventing her from screaming and telling her not to wake anyone. Luellen allowed J.J. to return to the living room, where he gave her a candy bar which she refused.

* * * * *

On January 17, 2017, the State filed an Information, charging Luellen with Level 4 child molesting, Level 5 felony criminal confinement, and Level 6 felony sexual battery. On November 15 through November 17, 2021, a jury trial was held. During his opening statement, Luellen informed the jury that J.J.’s mother and older sister “didn't believe her, didn't call the cops.” During cross-examination of J.J.’s father, Luellen inquired whether J.J. had problems with lying in his home. J.J.’s father answered that she did while she was “going through some things” and added “[b]ut she ain't lying now. She's telling the truth.” On redirect, the State sought clarification from J.J.’s father about the circumstances under which J.J. had lied in the past and her demeanor when she disclosed the molestation. After testifying that J.J. was very upset when she told him about the molestation, J.J.’s father explained that he paid attention to his children to know when they were lying and “she was absolutely telling the truth.” Luellen did not object to J.J.’s father's testimony. In closing argument, Luellen again repeatedly stated that J.J.’s mother and sister did not believe her because they did not call the police. At the close of the evidence, the jury returned a guilty verdict of child molesting and criminal confinement but was hung on the sexual battery charge. On January 7, 2022, the trial court imposed concurrent sentences of ten years on the child molesting conviction and five years on the confinement conviction.

Luellen v. State, No. 22A-CR-257, 2022 WL 3008930, at *1 (Ind. Ct. App. Jul. 29, 2022) (“Luellen I”) (citations to record omitted), trans. denied.

[3] On appeal, Luellen argued in part “that J.J.’s father's testimony, vouching that J.J. was telling the truth, was erroneously admitted by the trial court in violation of Indiana Evidence Rule 704(b).” Id. at *4. We held:

While we agree with the State that father's challenged testimony amounted to impermissible vouching for J.J.’s truthfulness, it was nevertheless admissible because Luellen ‘opened the door’ to such testimony when he argued that J.J.’s own family did not believe her claims of molestation. “Opening the door refers to the principle that where one party introduces evidence of a particular fact, the opposing party is entitled to introduce evidence in explanation or rebuttal thereof, even though the rebuttal evidence otherwise would have been inadmissible.” Sampson v. State, 38 N.E.3d 985, 992 n.4 (Ind. 2015). Evidence which opens the door “must leave the trier of fact with a false or misleading impression of the facts related.” Cameron v. State, 22 N.E.3d 588, 593 (Ind. Ct. App. 2014). When that happens, the State may introduce otherwise inadmissible evidence if it “is a fair response to evidence elicited by the defendant.” Id.

Here, Luellen opened the door to father's testimony by declaring, in his opening statement, that J.J.’s mother and older sister, who knew her well and knew her “credibility and honesty,” “didn't believe her, didn't call the cops.” In closing argument, Luellen again emphasized this claim by repeatedly asserting that the jury should not believe J.J. because her own mother and sister did not believe her and her father said that she lies. Thus, Luellen's opening statement necessarily left the jury with the impression that J.J.’s own family did not believe the allegations of child molesting and, at that point, the State was entitled to elicit testimony of family members that they did believe J.J.

Furthermore, J.J. testified consistently and unequivocally that Luellen had touched and fondled her bottom and genital area. She was subjected to an extensive cross-examination and did not waver in her testimony. Given the substantial evidence of guilt and the instruction informing the jury that it was the judge of the credibility of the witnesses, the admission of the brief vouching testimony did not make it impossible for Luellen to receive a fair trial. See Hoglund [v. State], 962 N.E.2d [1230,] 1240 [(Ind. 2012)] (holding that the erroneous admission of vouching evidence in a child molesting case did not constitute fundamental error because the State presented substantial evidence of guilt through the victim's testimony). Accordingly, we conclude that the trial court did not commit fundamental error by failing to exclude father's vouching testimony.

Id. at *4-5 (citation to record omitted). We affirmed Luellen's convictions. Id. at *5.

[4] Luellen filed a petition for post-conviction relief, as amended by counsel, alleging that Ind. Code 35-50-6-3.1 became effective July 1, 2023, that the statute clarified how jail time and good time credit apply to home detention, and that he did not receive all the credit he earned. He further argued “[t]he state misstated facts presented at trial allowing the jury to consider facts that were never proven” and that his counsel “failed to object to the father's vouching testimony.” Appellant's Appendix Volume II at 37.

[5] On December 8, 2023, the court held a hearing at which Luellen's trial counsel, Attorney John Cantrell, testified. The following exchange occurred during the examination of Attorney Cantrell by Luellen's post-conviction counsel:

Q. I don't know if you recall in the closing argument, the prosecutor argued that [J.J.] actually testified that she had her thighs rubbed. She had touching on the vagina, touching on the breasts. I don't know, would you recall that from the closing argument?

A. No. Not at all.

Q. What I'm questioning you about today really is that was evidence that was not presented at trial. And much more damaging evidence, obviously, than he touched the front. And so I was wondering if you had any memory or if you could maybe help me know why it is that you would not have objected to that?

A. I honestly don't remember that [at] all. So I really don't know.

Transcript Volume II at 9. On cross-examination, Attorney Cantrell testified that he had been a defense attorney for approximately twenty-three years and had tried over one hundred felony jury trials. He indicated that his theory of the case was that the allegations were untrue and that “[t]he testimony wasn't believable or credible.” Id. at 22. He indicated that he questioned the victim's father on cross-examination in “a heated discussion” during which he was “trying basically [to] highlight the fact that this dad knows that she's a liar.” Id. at 12. He also testified that he did not think objecting during closing argument “comes across well in front of juries.” Id. at 24.

[6] The court issued a seven-page order denying Luellen's petition for post-conviction relief. The court found “that the strategy of undermining the credibility of the victim was a sound strategy” and Luellen “failed to prove that he was prejudiced by Attorney Cantrell's strategy or by the vouching testimony.” Appellant's Appendix Volume II at 71. The court found:

[Luellen] also alleges that counsel was ineffective for failing to object to the State's “misconduct” in closing arguments, when the deputy prosecutor stated that the victim testified to touching beyond what she testified during the trial. The Court notes that the jury was specifically instructed that they were “the exclusive judges of the evidence, which may be either witness testimony or exhibits”. Additionally, they were instructed that “[s]tatements made by the attorneys are not evidence.” Attorney Cantrell testified that he does no[t] usually object during closing arguments because it does not come across well, but did say that if the State misstated the facts, that he would have objected. Attorney Cantrell did not object during the closing arguments. However, the jury was specifically instructed by the court that the evidence consisted of testimony and exhibits, and that statements by counsel were not evidence. There is no evidence that the jury was misled by the State's argument. There is no evidence that [Luellen] was prejudiced by counsel's strategy of not objecting to closings, or by his failure to object.

Id. at 72 (citations omitted). The court found: “There is no evidence from which this Court can conclude that trial counsel's performance fell below the norms of prevailing professional conduct or that trial counsel's handling of [Luellen's] case prejudiced [Luellen].” Id. The court also found that Luellen is not entitled to “additional credit time under the newly modified statute.” Id. at 73.

Discussion

[7] Luellen argues that he received ineffective assistance of trial counsel and that he is entitled to additional good time credit of sixty days. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. We will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. “A post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.

I.

[8] To prevail on a claim of ineffective assistance of counsel a petitioner must demonstrate both that his counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), reh'g denied). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. Id. To meet the appropriate test for prejudice, the petitioner must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. Failure to satisfy either prong will cause the claim to fail. Id. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

[9] A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). Counsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will not support a claim of ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206, 1211 (Ind. 1996), reh'g denied, cert. denied, 520 U.S. 1171, 117 S. Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We will not lightly speculate as to what may or may not have been an advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best. Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to the failure to object, the defendant must show a reasonable probability that the objection would have been sustained if made. Passwater v. State, 989 N.E.2d 766, 772 (Ind. 2013).

A. Vouching Testimony

[10] Luellen claims his trial counsel was “ineffective when he failed to object to J.J.’s father vouching for [J.J.’s] credibility.” Appellant's Brief at 15. On direct appeal, this Court observed that the challenged testimony amounted to impermissible vouching for J.J.’s truthfulness but held the testimony was nevertheless admissible because Luellen's counsel opened the door to such testimony when he argued that J.J.’s own family did not believe her claims of molestation. Luellen I at *4. Specifically, we held that Luellen's counsel opened the door to the father's testimony by declaring, in his opening statement, that J.J.’s mother and older sister, who knew her well and knew her “credibility and honesty,” “didn't believe her, didn't call the cops,” and that the State was entitled to elicit testimony of family members that they did believe J.J. Id. at *5 (citations omitted). Luellen has not demonstrated that an objection to the vouching testimony, if made, would have been sustained.

[11] Further, Luellen does not assert that his trial counsel's strategy was unreasonable under the circumstances. Attorney Cantrell testified that his theory of the case was that the allegations were untrue and that the testimony against Luellen was not believable or credible. He indicated that he questioned the victim's father on cross-examination in “a heated discussion” during which he was “trying basically [to] highlight the fact that this dad knows that she's a liar.” Transcript Volume II at 12. He testified “I just thought the girl's testimony was terrible.” Id. at 19. He also testified: “I have a philosophy that less is more. If you think that you're winning, you down the football. You don't do anything to risk losing. And after the young girl testified, I really didn't think we had to do anything else because I thought that she was not believable. That was my conclusion after the young lady had testified.” Id. at 21. The post-conviction court found that “the strategy of undermining the credibility of the victim was a sound strategy.” Appellant's Appendix Volume II at 71. Luellen did not offer convincing evidence to overcome the strong presumption that his trial counsel, in choosing a trial strategy under the circumstances, exercised reasonable professional judgment, and he has not established that he received ineffective assistance on this basis.

B. Closing Argument

[12] Luellen also claims that he received ineffective assistance of counsel when Attorney Cantrell failed to object to the prosecutor “misstating testimony” during closing argument. Appellant's Brief at 13. He argues that J.J. testified that Luellen touched her “behind,” “front,” and “front area,” and that the prosecutor argued that J.J. testified that Luellen touched her “vagina,” “breasts,” and “thigh.” Id. The State maintains that the prosecutor's statements were a fair characterization of the evidence and that Luellen has not shown that “the failure to object was not a reasonable strategic decision” or that he was prejudiced by the prosecutor's characterization of the evidence. Appellee's Brief at 19.

[13] “We observe that it is proper for a prosecutor to argue both law and fact during final argument and propound conclusions based upon his analysis of the evidence. That said, a prosecutor's comments can be prejudicial if they have an impact on the jury's ability to judge the evidence fairly.” Neville v. State, 976 N.E.2d 1252, 1261 (Ind. Ct. App. 2012) (citation, quotation marks, and brackets omitted), trans. denied. See Davis v. State, 658 N.E.2d 896, 898 (Ind. 1995) (“Argument to the jury that seeks to explain the evidence and urges reasonable inferences is not improper.”), cert. denied, 516 U.S. 1178, 116 S. Ct. 1275 (1996); Seide v. State, 784 N.E.2d 974, 977 (Ind. Ct. App. 2003) (“In judging the propriety of a prosecutor's remarks, we consider statements in the context of the argument as a whole.”) (citation omitted); Comer v. State, 428 N.E.2d 48, 52 (Ind. Ct. App. 1981) (“Although it is improper to comment on facts not in evidence, arguments as to inferences to be drawn from the evidence are permissible.”) (citations omitted), reh'g denied.

[14] The transcript of Luellen's trial reveals that J.J. testified that Luellen touched “up [her] back” and “just rub from there, and then he will migrate down to where my behind was.” Trial Transcript Volume III at 183-184. The prosecutor asked if Luellen said anything “while he was touching your behind,” and J.J. replied “[h]e never did.” Id. at 184. When asked “would he always just touch your back and your behind,” J.J. answered “No,” and when asked “[w]hat else would happen,” she answered: “My front area.” Id. at 185. The prosecutor asked “when he touched your front area, your vagina, did he say anything then,” J.J. replied “No.” Id. The prosecutor asked, “[w]as there any other changes in your relationship with [Luellen] that led you to tell,” J.J. responded affirmatively, the prosecutor asked “[w]hat was that,” and J.J. answered, “[a]ll the times he touched me and tried to have sex with me.” Id. at 187. When asked, “[w]hat do you mean tried to have sex with you,” J.J. testified, “[t]ouching me to the point he would literally try to get ready to have sex with me,” “[a]ll the times where he tried to touch my area --,” and “the final time that he tried to pull down his pants.” Id. at 187-188. The prosecutor also asked “[w]hen he was touching you, did ․ he ever insert his fingers into your vagina during those times,” and J.J. answered “No.” Id. at 188. With respect to the occasion that Luellen took her to the laundry room, J.J. testified “he lifted my dress, and he was kissing my neck” and “he went from rubbing my waist and then he just kept rubbing the front, kept rubbing my back․ He just kept repeating it, ․ and the next thing you know, I hear him unbuckle his pants ․” Id. at 191.

[15] During closing argument, the prosecutor argued that Luellen “would rub [J.J.’s] back ․ moving his hand on her back, then lower, touching her buttocks,” and “[i]t would move to her vagina, rub his hand over her 11-year-old vagina.” Id. at 245. She argued that Luellen “rubbed her vagina, rubbed her butt, rubbed her legs.” Id. at 246. With respect to J.J.’s testimony regarding the occasion in the laundry room, the prosecutor argued: “You saw her hands. He would rub her hips, rub her front, rub her thighs, pull up her dress, kiss down her neck, felt her breasts, and, again, molested her.” Id. The prosecutor also referred to Luellen touching J.J.’s “vagina” several times during rebuttal. Trial Transcript Volume IV at 16, 22-24. Given the testimony as set forth above and in the trial transcript, we conclude that Luellen has not demonstrated that the prosecutor misrepresented the evidence or that her statements were not a reasonable commentary on the evidence, or that an objection to the challenged statements, if made, would have been sustained.

[16] Even if the prosecutor's statements or some of her statements were not a fair characterization of J.J.’s testimony, we cannot say reversal is warranted. Attorney Cantrell explained his hesitancy, as a strategic matter, to objecting during closing argument. When asked “what is your position on failing to object during this closing argument,” he explained:

I object during closing argument if I hear something that I consider prosecutorial misconduct. I would object if something is improper. I'm not one of those attorneys that objects during closing just for the sake of objecting during closings because I detest that. I despise that. I don't think it's appropriate. I don't think it comes across well in front of juries. It's something that, if I need to, I will.

Transcript Volume II at 23-24. He indicated that, if he believed the prosecutor had misstated facts during closing argument, he would have objected. As the State argues, as a strategic matter, defense counsel objecting to the prosecutor's remarks could do more harm than good to the defense. We will defer to counsel's strategy which at the time and under the circumstances seems best. See Whitener, 696 N.E.2d at 42.

[17] Further, in its preliminary instructions, the trial court instructed the jury: “Your verdict should be based only on the evidence admitted and the instructions on the law.” Trial Transcript Volume III at 32. In its final instructions, the court instructed the jury: “You are the exclusive judges of the evidence, which may be either witness testimony or exhibits.” Trial Transcript Volume IV at 33. The court also instructed the jury: “Statements made by the attorneys are not evidence.” Id. at 35. Our review of the record does not leave us with a definite and firm conviction that a mistake has been made or show that the evidence unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court.

II.

[18] Luellen also asserts that he is entitled to an additional sixty days of credit based on the current version of Ind. Code § 35-50-6-3.1. He argues that he “received 751 accrued days for his home detention and 188 good time credit days,” “[t]hat is a ratio of one day credit time for each four days served,” and “[t]he statute now requires all Level 4 felony cases after June 30, 2014, to receive one day credit for each three days served.” Appellant's Brief at 12. The State argues that the version of Ind. Code § 35-50-6-3.1 in effect at the time Luellen was sentenced was applicable.

[19] This Court has held:

Generally, courts must sentence defendants under the statute in effect at the time the defendant committed the offense. Palmer v. State, 679 N.E.2d 887, 892 (Ind. 1997). When, however, the legislature enacts an ameliorative amendment without including a specific savings clause, the new statute will apply to all those sentenced after its effective date. Id. When a court sentences a defendant before the effective date of an ameliorative amendment, the new statute does not apply unless the legislature expressly designates that the new statute applies retroactively. Id.

Davis v. State, 978 N.E.2d 470, 474 (Ind. Ct. App. 2012).

[20] Luellen was sentenced on January 7, 2022, before the current version of Ind. Code § 35-50-6-3.1 became effective on July 1, 2023. At the time Luellen was sentenced, Ind. Code § 35-50-6-4(i) provided that a person “placed on pretrial home detention awaiting trial is assigned to Class P,”¹ and Ind. Code § 35-50-6-3.1(f) provided that a person “assigned to Class P earns one (1) day of good time credit for every four (4) calendar days or partial calendar days the person serves on pretrial home detention awaiting trial.”² Luellen acknowledges that he received “188 days good time credit days” and “[t]hat is a ratio of one day credit time for each four days served.” Appellant's Brief at 12. Luellen received the good time credit to which he was entitled at the time he was sentenced. We find no error in this regard.

[21] For the foregoing reasons, we affirm the post-conviction court.

[22] Affirmed.

FOOTNOTES

1.   Subsequently amended by Pub. Law No. 37-2023, § 5 (eff. July 1, 2023) (eliminating subsection (i)).

2.   Subsequently amended by Pub. Law No. 45-2022, § 13 (eff. July 1, 2022); Pub. Law No. 37-2023, § 4 (eff. July 1, 2023) (eliminating subsection (f) and amending subsections (b) through (d)). At the time Luellen was sentenced, Ind. Code § 35-50-6-3.1(c) provided: “A person assigned to Class B earns one (1) day of good time credit for every three (3) days the person is imprisoned for a crime or confined awaiting trial or sentencing.” (Subsequently amended). Effective July 1, 2023, Ind. Code § 35-50-6-3.1(c) provides: “A person assigned to Class B earns one (1) day of good time credit for every three (3) calendar days or partial calendar days the person is: (1) imprisoned for a crime; (2) confined awaiting trial or sentencing; or (3) on pretrial home detention.” (Language added effective July 1, 2023, emphasized). Both at the time Luellen was sentenced and after July 1, 2023, Ind. Code § 35-50-6-3.1(a) stated: “This section applies to a person who commits an offense after June 30, 2014.”

Brown, Judge.

May, J., and Pyle, J., concur.