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William Reiske v. State of Indiana
Date: 05-16-2021
Case Number: 20A-PC-02195
Judge: Patricia A. Riley
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Defendant's Attorney:
Criminal Defense Lawyer Directory
Description:
Indianapolis, IN - Criminal defense attorney represented William Reiske with appealing the post-conviction court's Order denying his petition for post-conviction relief..
The facts of the underlying offenses as found by this court on direct appeal are
as follows:
[O]n the night of December 28 through the morning of December
29, 2013, a group of college-aged friends, including Reiske, N.B.,
G.B., R.L., A.H., M.K., and T.H., were "hanging out†at N.B.'s
Allen County home. During the gathering, Reiske "target[ed]â€
T.H., who at that time was seventeen years old, by giving her
shots and "trying to get [her] drunk.†Reiske gave T.H. "eight
[drinks] at least.†After several guests had either left the party or
gone to sleep, R.L. and A.H. remained in the basement with
Reiske, M.K., and T.H. R.L. testified that Reiske began doing
and saying things to T.H. that "just didn't seem right.†Reiske's
actions made R.L. feel uncomfortable, so he suggested it was
time for bed. R.L. and A.H. went upstairs, leaving Reiske, M.K.,
and T.H. downstairs.
Soon thereafter, R.L. and A.H. went outside to smoke a cigarette
and, through a basement window, they observed Reiske
performing oral sex on T.H., who was naked from the waist Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 3 of 12
down. T.H. showed no reaction; due to her intoxication, she
was in "kind of like a zombie state.†While Reiske was
performing oral sex on T.H., M.K. was using Reiske's cell phone
to film the sex act. R.L. and A.H., unsure what to do, woke
G.B. and N.B., who went outside and, through the window, also
saw Reiske performing oral sex on T.H. The young men went
toward the basement stairs, calling out to ask what was going on.
Reiske replied, "[N]othing, it[']s fine. [D]on't worry about it, just
go back upstairs.†N.B. then called out to T.H., who did not
respond. Instead, Reiske called up to say, "[S]he's fine.â€
Knowing that Reiske's responses were not consistent with what
they had seen, R.L., A.H., G.B., and N.B. went into the
basement and helped T.H. up the stairs—T.H. was "still in that
zombie state where she—you could tell she didn't really know
what was going on.â€
T.H. retained only a few clear memories of that night. She
specifically remembered "arriving, taking a shot, playing
videogames and . . . waking up.†When she awoke in the
basement, Reiske was on top of her, and M.K. had a phone.
T.H. remembered that, shortly thereafter, "[G.B.] and [R.L.] and
[A.H.] came running in and yelling. . . . They were just yelling
like probably stop, stop.†T.H. then remembered getting dressed
and being helped upstairs. She also remembered, as if she were
having "an out of body experience,†that Reiske touched her
vagina with his hands and tongue. T.H. did not remember how
her clothes were removed.
The incident was subsequently reported to police, and on
December 9, 2014, the State charged Reiske with two counts of
Class B felony criminal deviate conduct and one count of Class A
misdemeanor contributing to the delinquency of a minor. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 4 of 12
Reiske v. State, No. 02A03-1702-CR-377, slip op. pp. 2-5 (Ind. Ct. App. Sept. 27,
2017) (trial record citations omitted). Reiske retained Trial Counsel to
represent him.
[5] On September 29, 2015, the trial court convened Reiske's two-day jury trial.
Before the presentation of the evidence began, Trial Counsel successfully
moved to exclude any references to, or evidence of, Reiske's statements earlier
in the evening in question that he was in the process of constructing an amateur
pornography website. G.B., R.L., A.H., N.B., and M.K. testified regarding
their observation of T.H.'s state at the time of the criminal deviate conduct
offenses, which they characterized as not appearing to know what was going
on, in a "zombie state,†"like a zombie,†"[n]ot doing anything,†and "very
drunk and out of it,†respectively. (Trial Transcript Vol. I, p. 244; Vol. II, pp.
15, 28, 51). Trial Counsel developed testimony through cross-examination of
these witnesses and T.H. regarding the fact that T.H. was the only female in
attendance at the party and that everyone had been intoxicated to some degree.
Trial Counsel examined M.K. at length regarding the details of his plea
agreement with the State to resolve a felony voyeurism charge stemming from
his role in the offenses. Reiske did not testify on his own behalf. Trial Counsel
tendered the following instruction:
You are instructed as a matter of law that T.H.'s unawareness is
a material element of the crime charged, thus requiring the
Defendant to have been aware of a high probability that she was
unaware that the sexual activity was occurring.Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 5 of 12
(Trial App. Vol. II, p. 196). The instruction was not given to the jury because
the trial court ruled it was covered by other final instructions. Trial Counsel
objected to the State's proposed instruction on voluntary intoxication, arguing
that it was not supported by the evidence and Reiske "did not interpose the
defense of intoxication.†(Trial Tr. Vol. II, p. 100). Trial Counsel argued in
closing that it could be inferred from the evidence that T.H. had been out for a
"good time†when she attended the party and that the ability of the other party
guests to accurately perceive what occurred was clouded by alcohol. (Trial Tr.
Vol. II, p. 128). Trial Counsel also reminded the jury that the State had a
demanding burden of proof and argued that M.K.'s testimony had been the
result of his plea agreement. The jury found Reiske guilty as charged.
[6] On November 2, 2015, due to double jeopardy concerns, the trial court merged
one of Reiske's Class B felony convictions and sentenced him to ten years, with
two years suspended to probation. The trial court also sentenced Reiske to one
year for his Class A misdemeanor conviction, to be served concurrently. On
October 17, 2016, Reiske moved to modify his sentence. On January 27, 2017,
the trial court denied Reiske's motion, and, on September 27, 2017, this court
affirmed that denial.
[7] On April 26, 2019, Reiske filed a petition for post-conviction relief in which he
claimed that Trial Counsel had rendered ineffective assistance because: (1)
Trial Counsel had impermissibly deprived him of his right to testify on his own
behalf, and (2) Trial Counsel had relied on the inapplicable defense of voluntary
intoxication. On February 7, 2020, the post-conviction court held a hearing on Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 6 of 12
Reiske's petition. Trial Counsel testified that he had been practicing for fortyseven years, primarily in criminal law. Trial Counsel had represented Reiske in
a previous, unrelated matter and was his attorney in the T.H. case for eight or
nine months before trial. Acknowledging that criminal defense attorneys have
a duty to allow their clients to decide whether or not to testify, Trial Counsel
recounted that he had informed Reiske of his Fifth Amendment right to testify
or to decline to do so. According to Trial Counsel, Reiske had asked about
testifying, but Trial Counsel had advised against it. This advice was based on
Trial Counsel's observation that Reiske was intelligent but egotistical and that
he would not be perceived well by the jury. Trial Counsel also feared that
Reiske might inadvertently open the door on cross-examination to the excluded
evidence of his amateur pornography website. Trial Counsel denied ever telling
Reiske he could not testify. Rather, Reiske accepted his advice and followed it.
Instead of having Reiske testify, Trial Counsel attempted to "stir the pot†by
pursuing a defense that the perceptions of the State's witnesses, including T.H.,
were clouded due to alcohol consumption. (PCR Transcript Vol. II, p. 14). On
November 2, 2020, the post-conviction court issued its findings of fact and
conclusions thereon denying relief.
[8] Reiske now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[9] Petitions for post-conviction relief are civil proceedings in which a petitioner
may present limited collateral challenges to a criminal conviction and sentence. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 7 of 12
Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018). In a post-conviction
proceeding, the petitioner bears the burden of establishing his claims by a
preponderance of the evidence. Id. When a petitioner appeals from the denial
of his petition for post-conviction relief, he stands in the position of one
appealing from a negative judgment. Hollowell v. State, 19 N.E.3d 263, 269 (Ind.
2014). To prevail on appeal from the denial of a petition for 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. In addition, where a post-conviction court makes findings of fact
and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6),
we do not defer to its legal conclusions, but we will reverse its findings and
judgment only upon a showing of clear error, meaning error which leaves us
with a definite and firm conviction that a mistake has been made. Id. In
making this determination, we do not reweigh the evidence or judge the
credibility of witnesses, and we consider only the probative evidence and
reasonable inferences flowing therefrom that support the post-conviction court's
judgment. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct. App. 2013).
II. Ineffective Assistance of Counsel
[10] Reiske contends that he was denied the effective assistance of his trial counsel.
We evaluate ineffective assistance of counsel claims under the two-part test
articulated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such
a claim, a petitioner must show that 1) his counsel's performance was deficient
based on prevailing professional norms; and 2) that the deficient performance Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 8 of 12
prejudiced the defense. Weisheit, 109 N.E.3d at 983 (citing Strickland, 466 U.S.
at 687). In analyzing whether counsel's performance was deficient, we consider
whether, under all the circumstances, counsel's actions were reasonable under
prevailing professional norms. Id. "Counsel is afforded considerable discretion
in choosing strategy and tactics, and judicial scrutiny of counsel's performance
is highly deferential.†Id. In order to demonstrate sufficient prejudice, the
petitioner must show that there is a reasonable probability that, but for his
counsel's unprofessional errors, the result of the proceeding would have been
different. Id. (citing Strickland, 466 U.S. at 694). A reasonable probability is
one that is sufficient to undermine confidence in the outcome. Id. A
petitioner's failure to satisfy either the 'performance' or the 'prejudice' prong of
a Strickland analysis will cause an ineffective assistance of counsel claim to fail.
Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006).
A. Decision to Testify
[11] Reiske claims that Trial Counsel denied him effective assistance by
impermissibly usurping the decision of whether he should testify on his own
behalf. A defendant in a criminal proceeding has an absolute constitutional
right to testify as part of his defense. Phillips v. State, 673 N.E.2d 1200, 1201-02
(Ind. 1996). The decision of whether or not to testify is controlled by the
defendant, and defendant's counsel is ethically bound to abide by the
defendant's decision in the matter. Id. at 1202; see also Rules of Professional
Conduct 1.2(a) (2005) ("In a criminal case, the lawyer shall abide by the client's
decision, after consultation with the lawyer, as to . . . whether the client will Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 9 of 12
testify.â€). We will not conclude that a defense lawyer violated this right unless
the lawyer specifically forbade the defendant from testifying. See Correll v. State,
639 N.E.2d 677, 681-82 (Ind. Ct. App. 1994) (holding that, absent any
testimony by Correll that his trial counsel had forbidden him from testifying, his
claim after conviction that his lawyer would not let him testify and that he
perceived he would not be allowed to testify did not substantiate the denial of
his right to testify for purposes of an ineffective assistance of counsel claim).
[12] The post-conviction court concluded that Trial Counsel did not forbid Reiske
from testifying. This determination was supported by Trial Counsel's testimony
at the post-conviction hearing that he counseled Reiske before and during trial
not to testify but that he never told Reiske that he could not testify. Reiske
acknowledged at the post-conviction hearing that Trial Counsel had advised
him not to testify. Reiske did not state at the post-conviction hearing that Trial
Counsel had forbidden him from testifying. Pursuant to our standard of review,
we conclude that the post-conviction court's conclusion was supported by the
evidence, and thus, was not clearly erroneous. See McKnight, 1 N.E.3d at 199.
Following Correll, we also conclude that Reiske has failed to establish that Trial
Counsel rendered ineffective assistance.
[13] Inasmuch as Reiske argues that Trial Counsel rendered ineffective assistance by
advising him not to testify, we also reject that claim. "[I]t is extremely common
for criminal defendants not to testify, and there are good reasons for this[.]â€
Correll, 639 N.E.2d at 681 (quoting Underwood v. Clark, 939 F.2d 473, 475 (7th
Cir. 1991)). Whether a defendant should testify is a matter of trial strategy. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 10 of 12
White v. State, 25 N.E.3d 107, 134 (Ind. Ct. App. 2014), trans. denied. "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.†Id.
[14] Here, Trial Counsel, who had been practicing criminal law for nearly fifty
years, had represented Reiske in a prior unrelated matter, and by the time of
Reiske's trial on the charges pertaining to T.H., he had represented Reiske for
eight-to-nine months. Trial Counsel stated at the post-conviction hearing that
his decision to advise Reiske not to testify was based on his determination that
Reiske would appear egotistical and unsympathetic to the jury. Thus, Trial
Counsel's decision was made after having an opportunity to observe Reiske and
was an exercise of his professional judgment. In light of Trial Counsel's
testimony, Reiske has failed to establish that his counsel's performance was
defective. See Canaan v. State, 683 N.E.2d 227, 229-30 (Ind. 1997) (rejecting
Canaan's ineffectiveness of trial counsel claim where counsel testified that she
had advised him against testifying during the penalty phase because she feared
he would appear cold and unsympathetic to the jury). Trial Counsel was also
concerned that Reiske might inadvertently open the door on cross-examination
to evidence regarding Reiske's amateur pornography website that Trial Counsel
had successfully obtained a ruling to exclude. This circumstance further
buttresses our conclusion that Trial Counsel's advice was a reasonable trial
strategy, one which we will not second-guess. See White, 25 N.E.3d at 134. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 11 of 12
Because Reiske has failed to establish that Trial Counsel's performance was
deficient, we will not disturb the post-conviction court's denial of relief.1
B. Voluntary Intoxication
[15] Reiske also argues that Trial Counsel was ineffective for relying on the defense
theory of voluntary intoxication when that was not a viable defense available to
him. Reiske draws our attention to Indiana Code section 35-41-2-5 which
provides that "intoxication is not a defense in a prosecution for an offense and
may not be taken into consideration in determining the existence of a mental
state that is an element of the offense†unless the defendant meets certain
requirements that are not implicated by this case.
[16] However, we do not undertake a Strickland analysis of this claim because Trial
Counsel did not present a voluntary intoxication defense. At Reiske's trial on
the underlying offenses, Trial Counsel never argued to the jury or developed
testimony showing that Reiske was incapable of forming the requisite mens rea
for the offenses due to his intoxication. Rather, Trial Counsel attempted to
impugn the credibility of the State's witnesses through cross-examination
showing that they were intoxicated and, thus, did not accurately assess what
they had observed during the evening in question. Trial Counsel also defended
Reiske by arguing that T.H. had been at the party for sex, and he attacked
1 Given our disposition, we need not address Reiske's claim that he was prejudiced by his counsel's
performance. See Taylor, 840 N.E.2d at 331. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 12 of 12
M.K.'s credibility by attempting to show that his testimony was influenced by
his plea agreement.
[17] Reiske asserts that Trial Counsel presented a voluntary intoxication defense
because counsel proffered a final instruction that Reiske had "to have been
aware of a high probability that [T.H.] was unaware that sexual activity was
occurring.†(Appellant's Br. p. 17). We agree with the State that this
instruction, which was not even given to the jury, did not mention voluntary
intoxication or invoke a voluntary intoxication defense. Indeed, Trial Counsel
objected to the State's proffer of a voluntary intoxication instruction specifically
because Reiske "did not interpose the defense of intoxication.†(Trial Tr. Vol.
II, p. 99). Because Reiske's claim that Trial Counsel relied upon a voluntary
intoxication defense is not supported by the record, we need not address it
further.
Outcome:
Based on the foregoing, we conclude that Reiske was not denied the effective
assistance of Trial Counsel
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of William Reiske v. State of Indiana?
The outcome was: Based on the foregoing, we conclude that Reiske was not denied the effective
assistance of Trial Counsel
Which court heard William Reiske v. State of Indiana?
This case was heard in COURT OF APPEALS OF INDIANA, IN. The presiding judge was Patricia A. Riley.
Who were the attorneys in William Reiske v. State of Indiana?
Plaintiff's attorney: Theodore E. Rokita
Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General. Defendant's attorney: Criminal Defense Lawyer Directory.
When was William Reiske v. State of Indiana decided?
This case was decided on May 16, 2021.
Criminal Defense Lawyer Directory
Description:
The facts of the underlying offenses as found by this court on direct appeal are
as follows:
[O]n the night of December 28 through the morning of December
29, 2013, a group of college-aged friends, including Reiske, N.B.,
G.B., R.L., A.H., M.K., and T.H., were "hanging out†at N.B.'s
Allen County home. During the gathering, Reiske "target[ed]â€
T.H., who at that time was seventeen years old, by giving her
shots and "trying to get [her] drunk.†Reiske gave T.H. "eight
[drinks] at least.†After several guests had either left the party or
gone to sleep, R.L. and A.H. remained in the basement with
Reiske, M.K., and T.H. R.L. testified that Reiske began doing
and saying things to T.H. that "just didn't seem right.†Reiske's
actions made R.L. feel uncomfortable, so he suggested it was
time for bed. R.L. and A.H. went upstairs, leaving Reiske, M.K.,
and T.H. downstairs.
Soon thereafter, R.L. and A.H. went outside to smoke a cigarette
and, through a basement window, they observed Reiske
performing oral sex on T.H., who was naked from the waist Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 3 of 12
down. T.H. showed no reaction; due to her intoxication, she
was in "kind of like a zombie state.†While Reiske was
performing oral sex on T.H., M.K. was using Reiske's cell phone
to film the sex act. R.L. and A.H., unsure what to do, woke
G.B. and N.B., who went outside and, through the window, also
saw Reiske performing oral sex on T.H. The young men went
toward the basement stairs, calling out to ask what was going on.
Reiske replied, "[N]othing, it[']s fine. [D]on't worry about it, just
go back upstairs.†N.B. then called out to T.H., who did not
respond. Instead, Reiske called up to say, "[S]he's fine.â€
Knowing that Reiske's responses were not consistent with what
they had seen, R.L., A.H., G.B., and N.B. went into the
basement and helped T.H. up the stairs—T.H. was "still in that
zombie state where she—you could tell she didn't really know
what was going on.â€
T.H. retained only a few clear memories of that night. She
specifically remembered "arriving, taking a shot, playing
videogames and . . . waking up.†When she awoke in the
basement, Reiske was on top of her, and M.K. had a phone.
T.H. remembered that, shortly thereafter, "[G.B.] and [R.L.] and
[A.H.] came running in and yelling. . . . They were just yelling
like probably stop, stop.†T.H. then remembered getting dressed
and being helped upstairs. She also remembered, as if she were
having "an out of body experience,†that Reiske touched her
vagina with his hands and tongue. T.H. did not remember how
her clothes were removed.
The incident was subsequently reported to police, and on
December 9, 2014, the State charged Reiske with two counts of
Class B felony criminal deviate conduct and one count of Class A
misdemeanor contributing to the delinquency of a minor. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 4 of 12
Reiske v. State, No. 02A03-1702-CR-377, slip op. pp. 2-5 (Ind. Ct. App. Sept. 27,
2017) (trial record citations omitted). Reiske retained Trial Counsel to
represent him.
[5] On September 29, 2015, the trial court convened Reiske's two-day jury trial.
Before the presentation of the evidence began, Trial Counsel successfully
moved to exclude any references to, or evidence of, Reiske's statements earlier
in the evening in question that he was in the process of constructing an amateur
pornography website. G.B., R.L., A.H., N.B., and M.K. testified regarding
their observation of T.H.'s state at the time of the criminal deviate conduct
offenses, which they characterized as not appearing to know what was going
on, in a "zombie state,†"like a zombie,†"[n]ot doing anything,†and "very
drunk and out of it,†respectively. (Trial Transcript Vol. I, p. 244; Vol. II, pp.
15, 28, 51). Trial Counsel developed testimony through cross-examination of
these witnesses and T.H. regarding the fact that T.H. was the only female in
attendance at the party and that everyone had been intoxicated to some degree.
Trial Counsel examined M.K. at length regarding the details of his plea
agreement with the State to resolve a felony voyeurism charge stemming from
his role in the offenses. Reiske did not testify on his own behalf. Trial Counsel
tendered the following instruction:
You are instructed as a matter of law that T.H.'s unawareness is
a material element of the crime charged, thus requiring the
Defendant to have been aware of a high probability that she was
unaware that the sexual activity was occurring.Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 5 of 12
(Trial App. Vol. II, p. 196). The instruction was not given to the jury because
the trial court ruled it was covered by other final instructions. Trial Counsel
objected to the State's proposed instruction on voluntary intoxication, arguing
that it was not supported by the evidence and Reiske "did not interpose the
defense of intoxication.†(Trial Tr. Vol. II, p. 100). Trial Counsel argued in
closing that it could be inferred from the evidence that T.H. had been out for a
"good time†when she attended the party and that the ability of the other party
guests to accurately perceive what occurred was clouded by alcohol. (Trial Tr.
Vol. II, p. 128). Trial Counsel also reminded the jury that the State had a
demanding burden of proof and argued that M.K.'s testimony had been the
result of his plea agreement. The jury found Reiske guilty as charged.
[6] On November 2, 2015, due to double jeopardy concerns, the trial court merged
one of Reiske's Class B felony convictions and sentenced him to ten years, with
two years suspended to probation. The trial court also sentenced Reiske to one
year for his Class A misdemeanor conviction, to be served concurrently. On
October 17, 2016, Reiske moved to modify his sentence. On January 27, 2017,
the trial court denied Reiske's motion, and, on September 27, 2017, this court
affirmed that denial.
[7] On April 26, 2019, Reiske filed a petition for post-conviction relief in which he
claimed that Trial Counsel had rendered ineffective assistance because: (1)
Trial Counsel had impermissibly deprived him of his right to testify on his own
behalf, and (2) Trial Counsel had relied on the inapplicable defense of voluntary
intoxication. On February 7, 2020, the post-conviction court held a hearing on Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 6 of 12
Reiske's petition. Trial Counsel testified that he had been practicing for fortyseven years, primarily in criminal law. Trial Counsel had represented Reiske in
a previous, unrelated matter and was his attorney in the T.H. case for eight or
nine months before trial. Acknowledging that criminal defense attorneys have
a duty to allow their clients to decide whether or not to testify, Trial Counsel
recounted that he had informed Reiske of his Fifth Amendment right to testify
or to decline to do so. According to Trial Counsel, Reiske had asked about
testifying, but Trial Counsel had advised against it. This advice was based on
Trial Counsel's observation that Reiske was intelligent but egotistical and that
he would not be perceived well by the jury. Trial Counsel also feared that
Reiske might inadvertently open the door on cross-examination to the excluded
evidence of his amateur pornography website. Trial Counsel denied ever telling
Reiske he could not testify. Rather, Reiske accepted his advice and followed it.
Instead of having Reiske testify, Trial Counsel attempted to "stir the pot†by
pursuing a defense that the perceptions of the State's witnesses, including T.H.,
were clouded due to alcohol consumption. (PCR Transcript Vol. II, p. 14). On
November 2, 2020, the post-conviction court issued its findings of fact and
conclusions thereon denying relief.
[8] Reiske now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[9] Petitions for post-conviction relief are civil proceedings in which a petitioner
may present limited collateral challenges to a criminal conviction and sentence. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 7 of 12
Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018). In a post-conviction
proceeding, the petitioner bears the burden of establishing his claims by a
preponderance of the evidence. Id. When a petitioner appeals from the denial
of his petition for post-conviction relief, he stands in the position of one
appealing from a negative judgment. Hollowell v. State, 19 N.E.3d 263, 269 (Ind.
2014). To prevail on appeal from the denial of a petition for 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. In addition, where a post-conviction court makes findings of fact
and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6),
we do not defer to its legal conclusions, but we will reverse its findings and
judgment only upon a showing of clear error, meaning error which leaves us
with a definite and firm conviction that a mistake has been made. Id. In
making this determination, we do not reweigh the evidence or judge the
credibility of witnesses, and we consider only the probative evidence and
reasonable inferences flowing therefrom that support the post-conviction court's
judgment. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct. App. 2013).
II. Ineffective Assistance of Counsel
[10] Reiske contends that he was denied the effective assistance of his trial counsel.
We evaluate ineffective assistance of counsel claims under the two-part test
articulated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such
a claim, a petitioner must show that 1) his counsel's performance was deficient
based on prevailing professional norms; and 2) that the deficient performance Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 8 of 12
prejudiced the defense. Weisheit, 109 N.E.3d at 983 (citing Strickland, 466 U.S.
at 687). In analyzing whether counsel's performance was deficient, we consider
whether, under all the circumstances, counsel's actions were reasonable under
prevailing professional norms. Id. "Counsel is afforded considerable discretion
in choosing strategy and tactics, and judicial scrutiny of counsel's performance
is highly deferential.†Id. In order to demonstrate sufficient prejudice, the
petitioner must show that there is a reasonable probability that, but for his
counsel's unprofessional errors, the result of the proceeding would have been
different. Id. (citing Strickland, 466 U.S. at 694). A reasonable probability is
one that is sufficient to undermine confidence in the outcome. Id. A
petitioner's failure to satisfy either the 'performance' or the 'prejudice' prong of
a Strickland analysis will cause an ineffective assistance of counsel claim to fail.
Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006).
A. Decision to Testify
[11] Reiske claims that Trial Counsel denied him effective assistance by
impermissibly usurping the decision of whether he should testify on his own
behalf. A defendant in a criminal proceeding has an absolute constitutional
right to testify as part of his defense. Phillips v. State, 673 N.E.2d 1200, 1201-02
(Ind. 1996). The decision of whether or not to testify is controlled by the
defendant, and defendant's counsel is ethically bound to abide by the
defendant's decision in the matter. Id. at 1202; see also Rules of Professional
Conduct 1.2(a) (2005) ("In a criminal case, the lawyer shall abide by the client's
decision, after consultation with the lawyer, as to . . . whether the client will Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 9 of 12
testify.â€). We will not conclude that a defense lawyer violated this right unless
the lawyer specifically forbade the defendant from testifying. See Correll v. State,
639 N.E.2d 677, 681-82 (Ind. Ct. App. 1994) (holding that, absent any
testimony by Correll that his trial counsel had forbidden him from testifying, his
claim after conviction that his lawyer would not let him testify and that he
perceived he would not be allowed to testify did not substantiate the denial of
his right to testify for purposes of an ineffective assistance of counsel claim).
[12] The post-conviction court concluded that Trial Counsel did not forbid Reiske
from testifying. This determination was supported by Trial Counsel's testimony
at the post-conviction hearing that he counseled Reiske before and during trial
not to testify but that he never told Reiske that he could not testify. Reiske
acknowledged at the post-conviction hearing that Trial Counsel had advised
him not to testify. Reiske did not state at the post-conviction hearing that Trial
Counsel had forbidden him from testifying. Pursuant to our standard of review,
we conclude that the post-conviction court's conclusion was supported by the
evidence, and thus, was not clearly erroneous. See McKnight, 1 N.E.3d at 199.
Following Correll, we also conclude that Reiske has failed to establish that Trial
Counsel rendered ineffective assistance.
[13] Inasmuch as Reiske argues that Trial Counsel rendered ineffective assistance by
advising him not to testify, we also reject that claim. "[I]t is extremely common
for criminal defendants not to testify, and there are good reasons for this[.]â€
Correll, 639 N.E.2d at 681 (quoting Underwood v. Clark, 939 F.2d 473, 475 (7th
Cir. 1991)). Whether a defendant should testify is a matter of trial strategy. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 10 of 12
White v. State, 25 N.E.3d 107, 134 (Ind. Ct. App. 2014), trans. denied. "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.†Id.
[14] Here, Trial Counsel, who had been practicing criminal law for nearly fifty
years, had represented Reiske in a prior unrelated matter, and by the time of
Reiske's trial on the charges pertaining to T.H., he had represented Reiske for
eight-to-nine months. Trial Counsel stated at the post-conviction hearing that
his decision to advise Reiske not to testify was based on his determination that
Reiske would appear egotistical and unsympathetic to the jury. Thus, Trial
Counsel's decision was made after having an opportunity to observe Reiske and
was an exercise of his professional judgment. In light of Trial Counsel's
testimony, Reiske has failed to establish that his counsel's performance was
defective. See Canaan v. State, 683 N.E.2d 227, 229-30 (Ind. 1997) (rejecting
Canaan's ineffectiveness of trial counsel claim where counsel testified that she
had advised him against testifying during the penalty phase because she feared
he would appear cold and unsympathetic to the jury). Trial Counsel was also
concerned that Reiske might inadvertently open the door on cross-examination
to evidence regarding Reiske's amateur pornography website that Trial Counsel
had successfully obtained a ruling to exclude. This circumstance further
buttresses our conclusion that Trial Counsel's advice was a reasonable trial
strategy, one which we will not second-guess. See White, 25 N.E.3d at 134. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 11 of 12
Because Reiske has failed to establish that Trial Counsel's performance was
deficient, we will not disturb the post-conviction court's denial of relief.1
B. Voluntary Intoxication
[15] Reiske also argues that Trial Counsel was ineffective for relying on the defense
theory of voluntary intoxication when that was not a viable defense available to
him. Reiske draws our attention to Indiana Code section 35-41-2-5 which
provides that "intoxication is not a defense in a prosecution for an offense and
may not be taken into consideration in determining the existence of a mental
state that is an element of the offense†unless the defendant meets certain
requirements that are not implicated by this case.
[16] However, we do not undertake a Strickland analysis of this claim because Trial
Counsel did not present a voluntary intoxication defense. At Reiske's trial on
the underlying offenses, Trial Counsel never argued to the jury or developed
testimony showing that Reiske was incapable of forming the requisite mens rea
for the offenses due to his intoxication. Rather, Trial Counsel attempted to
impugn the credibility of the State's witnesses through cross-examination
showing that they were intoxicated and, thus, did not accurately assess what
they had observed during the evening in question. Trial Counsel also defended
Reiske by arguing that T.H. had been at the party for sex, and he attacked
1 Given our disposition, we need not address Reiske's claim that he was prejudiced by his counsel's
performance. See Taylor, 840 N.E.2d at 331. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 12 of 12
M.K.'s credibility by attempting to show that his testimony was influenced by
his plea agreement.
[17] Reiske asserts that Trial Counsel presented a voluntary intoxication defense
because counsel proffered a final instruction that Reiske had "to have been
aware of a high probability that [T.H.] was unaware that sexual activity was
occurring.†(Appellant's Br. p. 17). We agree with the State that this
instruction, which was not even given to the jury, did not mention voluntary
intoxication or invoke a voluntary intoxication defense. Indeed, Trial Counsel
objected to the State's proffer of a voluntary intoxication instruction specifically
because Reiske "did not interpose the defense of intoxication.†(Trial Tr. Vol.
II, p. 99). Because Reiske's claim that Trial Counsel relied upon a voluntary
intoxication defense is not supported by the record, we need not address it
further.
Indianapolis, IN - Criminal defense attorney represented William Reiske with appealing the post-conviction court's Order denying his petition for post-conviction relief..
The facts of the underlying offenses as found by this court on direct appeal are
as follows:
[O]n the night of December 28 through the morning of December
29, 2013, a group of college-aged friends, including Reiske, N.B.,
G.B., R.L., A.H., M.K., and T.H., were "hanging out†at N.B.'s
Allen County home. During the gathering, Reiske "target[ed]â€
T.H., who at that time was seventeen years old, by giving her
shots and "trying to get [her] drunk.†Reiske gave T.H. "eight
[drinks] at least.†After several guests had either left the party or
gone to sleep, R.L. and A.H. remained in the basement with
Reiske, M.K., and T.H. R.L. testified that Reiske began doing
and saying things to T.H. that "just didn't seem right.†Reiske's
actions made R.L. feel uncomfortable, so he suggested it was
time for bed. R.L. and A.H. went upstairs, leaving Reiske, M.K.,
and T.H. downstairs.
Soon thereafter, R.L. and A.H. went outside to smoke a cigarette
and, through a basement window, they observed Reiske
performing oral sex on T.H., who was naked from the waist Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 3 of 12
down. T.H. showed no reaction; due to her intoxication, she
was in "kind of like a zombie state.†While Reiske was
performing oral sex on T.H., M.K. was using Reiske's cell phone
to film the sex act. R.L. and A.H., unsure what to do, woke
G.B. and N.B., who went outside and, through the window, also
saw Reiske performing oral sex on T.H. The young men went
toward the basement stairs, calling out to ask what was going on.
Reiske replied, "[N]othing, it[']s fine. [D]on't worry about it, just
go back upstairs.†N.B. then called out to T.H., who did not
respond. Instead, Reiske called up to say, "[S]he's fine.â€
Knowing that Reiske's responses were not consistent with what
they had seen, R.L., A.H., G.B., and N.B. went into the
basement and helped T.H. up the stairs—T.H. was "still in that
zombie state where she—you could tell she didn't really know
what was going on.â€
T.H. retained only a few clear memories of that night. She
specifically remembered "arriving, taking a shot, playing
videogames and . . . waking up.†When she awoke in the
basement, Reiske was on top of her, and M.K. had a phone.
T.H. remembered that, shortly thereafter, "[G.B.] and [R.L.] and
[A.H.] came running in and yelling. . . . They were just yelling
like probably stop, stop.†T.H. then remembered getting dressed
and being helped upstairs. She also remembered, as if she were
having "an out of body experience,†that Reiske touched her
vagina with his hands and tongue. T.H. did not remember how
her clothes were removed.
The incident was subsequently reported to police, and on
December 9, 2014, the State charged Reiske with two counts of
Class B felony criminal deviate conduct and one count of Class A
misdemeanor contributing to the delinquency of a minor. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 4 of 12
Reiske v. State, No. 02A03-1702-CR-377, slip op. pp. 2-5 (Ind. Ct. App. Sept. 27,
2017) (trial record citations omitted). Reiske retained Trial Counsel to
represent him.
[5] On September 29, 2015, the trial court convened Reiske's two-day jury trial.
Before the presentation of the evidence began, Trial Counsel successfully
moved to exclude any references to, or evidence of, Reiske's statements earlier
in the evening in question that he was in the process of constructing an amateur
pornography website. G.B., R.L., A.H., N.B., and M.K. testified regarding
their observation of T.H.'s state at the time of the criminal deviate conduct
offenses, which they characterized as not appearing to know what was going
on, in a "zombie state,†"like a zombie,†"[n]ot doing anything,†and "very
drunk and out of it,†respectively. (Trial Transcript Vol. I, p. 244; Vol. II, pp.
15, 28, 51). Trial Counsel developed testimony through cross-examination of
these witnesses and T.H. regarding the fact that T.H. was the only female in
attendance at the party and that everyone had been intoxicated to some degree.
Trial Counsel examined M.K. at length regarding the details of his plea
agreement with the State to resolve a felony voyeurism charge stemming from
his role in the offenses. Reiske did not testify on his own behalf. Trial Counsel
tendered the following instruction:
You are instructed as a matter of law that T.H.'s unawareness is
a material element of the crime charged, thus requiring the
Defendant to have been aware of a high probability that she was
unaware that the sexual activity was occurring.Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 5 of 12
(Trial App. Vol. II, p. 196). The instruction was not given to the jury because
the trial court ruled it was covered by other final instructions. Trial Counsel
objected to the State's proposed instruction on voluntary intoxication, arguing
that it was not supported by the evidence and Reiske "did not interpose the
defense of intoxication.†(Trial Tr. Vol. II, p. 100). Trial Counsel argued in
closing that it could be inferred from the evidence that T.H. had been out for a
"good time†when she attended the party and that the ability of the other party
guests to accurately perceive what occurred was clouded by alcohol. (Trial Tr.
Vol. II, p. 128). Trial Counsel also reminded the jury that the State had a
demanding burden of proof and argued that M.K.'s testimony had been the
result of his plea agreement. The jury found Reiske guilty as charged.
[6] On November 2, 2015, due to double jeopardy concerns, the trial court merged
one of Reiske's Class B felony convictions and sentenced him to ten years, with
two years suspended to probation. The trial court also sentenced Reiske to one
year for his Class A misdemeanor conviction, to be served concurrently. On
October 17, 2016, Reiske moved to modify his sentence. On January 27, 2017,
the trial court denied Reiske's motion, and, on September 27, 2017, this court
affirmed that denial.
[7] On April 26, 2019, Reiske filed a petition for post-conviction relief in which he
claimed that Trial Counsel had rendered ineffective assistance because: (1)
Trial Counsel had impermissibly deprived him of his right to testify on his own
behalf, and (2) Trial Counsel had relied on the inapplicable defense of voluntary
intoxication. On February 7, 2020, the post-conviction court held a hearing on Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 6 of 12
Reiske's petition. Trial Counsel testified that he had been practicing for fortyseven years, primarily in criminal law. Trial Counsel had represented Reiske in
a previous, unrelated matter and was his attorney in the T.H. case for eight or
nine months before trial. Acknowledging that criminal defense attorneys have
a duty to allow their clients to decide whether or not to testify, Trial Counsel
recounted that he had informed Reiske of his Fifth Amendment right to testify
or to decline to do so. According to Trial Counsel, Reiske had asked about
testifying, but Trial Counsel had advised against it. This advice was based on
Trial Counsel's observation that Reiske was intelligent but egotistical and that
he would not be perceived well by the jury. Trial Counsel also feared that
Reiske might inadvertently open the door on cross-examination to the excluded
evidence of his amateur pornography website. Trial Counsel denied ever telling
Reiske he could not testify. Rather, Reiske accepted his advice and followed it.
Instead of having Reiske testify, Trial Counsel attempted to "stir the pot†by
pursuing a defense that the perceptions of the State's witnesses, including T.H.,
were clouded due to alcohol consumption. (PCR Transcript Vol. II, p. 14). On
November 2, 2020, the post-conviction court issued its findings of fact and
conclusions thereon denying relief.
[8] Reiske now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[9] Petitions for post-conviction relief are civil proceedings in which a petitioner
may present limited collateral challenges to a criminal conviction and sentence. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 7 of 12
Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018). In a post-conviction
proceeding, the petitioner bears the burden of establishing his claims by a
preponderance of the evidence. Id. When a petitioner appeals from the denial
of his petition for post-conviction relief, he stands in the position of one
appealing from a negative judgment. Hollowell v. State, 19 N.E.3d 263, 269 (Ind.
2014). To prevail on appeal from the denial of a petition for 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. In addition, where a post-conviction court makes findings of fact
and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6),
we do not defer to its legal conclusions, but we will reverse its findings and
judgment only upon a showing of clear error, meaning error which leaves us
with a definite and firm conviction that a mistake has been made. Id. In
making this determination, we do not reweigh the evidence or judge the
credibility of witnesses, and we consider only the probative evidence and
reasonable inferences flowing therefrom that support the post-conviction court's
judgment. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct. App. 2013).
II. Ineffective Assistance of Counsel
[10] Reiske contends that he was denied the effective assistance of his trial counsel.
We evaluate ineffective assistance of counsel claims under the two-part test
articulated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such
a claim, a petitioner must show that 1) his counsel's performance was deficient
based on prevailing professional norms; and 2) that the deficient performance Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 8 of 12
prejudiced the defense. Weisheit, 109 N.E.3d at 983 (citing Strickland, 466 U.S.
at 687). In analyzing whether counsel's performance was deficient, we consider
whether, under all the circumstances, counsel's actions were reasonable under
prevailing professional norms. Id. "Counsel is afforded considerable discretion
in choosing strategy and tactics, and judicial scrutiny of counsel's performance
is highly deferential.†Id. In order to demonstrate sufficient prejudice, the
petitioner must show that there is a reasonable probability that, but for his
counsel's unprofessional errors, the result of the proceeding would have been
different. Id. (citing Strickland, 466 U.S. at 694). A reasonable probability is
one that is sufficient to undermine confidence in the outcome. Id. A
petitioner's failure to satisfy either the 'performance' or the 'prejudice' prong of
a Strickland analysis will cause an ineffective assistance of counsel claim to fail.
Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006).
A. Decision to Testify
[11] Reiske claims that Trial Counsel denied him effective assistance by
impermissibly usurping the decision of whether he should testify on his own
behalf. A defendant in a criminal proceeding has an absolute constitutional
right to testify as part of his defense. Phillips v. State, 673 N.E.2d 1200, 1201-02
(Ind. 1996). The decision of whether or not to testify is controlled by the
defendant, and defendant's counsel is ethically bound to abide by the
defendant's decision in the matter. Id. at 1202; see also Rules of Professional
Conduct 1.2(a) (2005) ("In a criminal case, the lawyer shall abide by the client's
decision, after consultation with the lawyer, as to . . . whether the client will Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 9 of 12
testify.â€). We will not conclude that a defense lawyer violated this right unless
the lawyer specifically forbade the defendant from testifying. See Correll v. State,
639 N.E.2d 677, 681-82 (Ind. Ct. App. 1994) (holding that, absent any
testimony by Correll that his trial counsel had forbidden him from testifying, his
claim after conviction that his lawyer would not let him testify and that he
perceived he would not be allowed to testify did not substantiate the denial of
his right to testify for purposes of an ineffective assistance of counsel claim).
[12] The post-conviction court concluded that Trial Counsel did not forbid Reiske
from testifying. This determination was supported by Trial Counsel's testimony
at the post-conviction hearing that he counseled Reiske before and during trial
not to testify but that he never told Reiske that he could not testify. Reiske
acknowledged at the post-conviction hearing that Trial Counsel had advised
him not to testify. Reiske did not state at the post-conviction hearing that Trial
Counsel had forbidden him from testifying. Pursuant to our standard of review,
we conclude that the post-conviction court's conclusion was supported by the
evidence, and thus, was not clearly erroneous. See McKnight, 1 N.E.3d at 199.
Following Correll, we also conclude that Reiske has failed to establish that Trial
Counsel rendered ineffective assistance.
[13] Inasmuch as Reiske argues that Trial Counsel rendered ineffective assistance by
advising him not to testify, we also reject that claim. "[I]t is extremely common
for criminal defendants not to testify, and there are good reasons for this[.]â€
Correll, 639 N.E.2d at 681 (quoting Underwood v. Clark, 939 F.2d 473, 475 (7th
Cir. 1991)). Whether a defendant should testify is a matter of trial strategy. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 10 of 12
White v. State, 25 N.E.3d 107, 134 (Ind. Ct. App. 2014), trans. denied. "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.†Id.
[14] Here, Trial Counsel, who had been practicing criminal law for nearly fifty
years, had represented Reiske in a prior unrelated matter, and by the time of
Reiske's trial on the charges pertaining to T.H., he had represented Reiske for
eight-to-nine months. Trial Counsel stated at the post-conviction hearing that
his decision to advise Reiske not to testify was based on his determination that
Reiske would appear egotistical and unsympathetic to the jury. Thus, Trial
Counsel's decision was made after having an opportunity to observe Reiske and
was an exercise of his professional judgment. In light of Trial Counsel's
testimony, Reiske has failed to establish that his counsel's performance was
defective. See Canaan v. State, 683 N.E.2d 227, 229-30 (Ind. 1997) (rejecting
Canaan's ineffectiveness of trial counsel claim where counsel testified that she
had advised him against testifying during the penalty phase because she feared
he would appear cold and unsympathetic to the jury). Trial Counsel was also
concerned that Reiske might inadvertently open the door on cross-examination
to evidence regarding Reiske's amateur pornography website that Trial Counsel
had successfully obtained a ruling to exclude. This circumstance further
buttresses our conclusion that Trial Counsel's advice was a reasonable trial
strategy, one which we will not second-guess. See White, 25 N.E.3d at 134. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 11 of 12
Because Reiske has failed to establish that Trial Counsel's performance was
deficient, we will not disturb the post-conviction court's denial of relief.1
B. Voluntary Intoxication
[15] Reiske also argues that Trial Counsel was ineffective for relying on the defense
theory of voluntary intoxication when that was not a viable defense available to
him. Reiske draws our attention to Indiana Code section 35-41-2-5 which
provides that "intoxication is not a defense in a prosecution for an offense and
may not be taken into consideration in determining the existence of a mental
state that is an element of the offense†unless the defendant meets certain
requirements that are not implicated by this case.
[16] However, we do not undertake a Strickland analysis of this claim because Trial
Counsel did not present a voluntary intoxication defense. At Reiske's trial on
the underlying offenses, Trial Counsel never argued to the jury or developed
testimony showing that Reiske was incapable of forming the requisite mens rea
for the offenses due to his intoxication. Rather, Trial Counsel attempted to
impugn the credibility of the State's witnesses through cross-examination
showing that they were intoxicated and, thus, did not accurately assess what
they had observed during the evening in question. Trial Counsel also defended
Reiske by arguing that T.H. had been at the party for sex, and he attacked
1 Given our disposition, we need not address Reiske's claim that he was prejudiced by his counsel's
performance. See Taylor, 840 N.E.2d at 331. Court of Appeals of Indiana | Memorandum Decision 20A-PC-2195 | May 12, 2021 Page 12 of 12
M.K.'s credibility by attempting to show that his testimony was influenced by
his plea agreement.
[17] Reiske asserts that Trial Counsel presented a voluntary intoxication defense
because counsel proffered a final instruction that Reiske had "to have been
aware of a high probability that [T.H.] was unaware that sexual activity was
occurring.†(Appellant's Br. p. 17). We agree with the State that this
instruction, which was not even given to the jury, did not mention voluntary
intoxication or invoke a voluntary intoxication defense. Indeed, Trial Counsel
objected to the State's proffer of a voluntary intoxication instruction specifically
because Reiske "did not interpose the defense of intoxication.†(Trial Tr. Vol.
II, p. 99). Because Reiske's claim that Trial Counsel relied upon a voluntary
intoxication defense is not supported by the record, we need not address it
further.
Outcome:
Based on the foregoing, we conclude that Reiske was not denied the effective
assistance of Trial Counsel
assistance of Trial Counsel
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of William Reiske v. State of Indiana?
The outcome was: Based on the foregoing, we conclude that Reiske was not denied the effective assistance of Trial Counsel
Which court heard William Reiske v. State of Indiana?
This case was heard in COURT OF APPEALS OF INDIANA, IN. The presiding judge was Patricia A. Riley.
Who were the attorneys in William Reiske v. State of Indiana?
Plaintiff's attorney: Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General. Defendant's attorney: Criminal Defense Lawyer Directory.
When was William Reiske v. State of Indiana decided?
This case was decided on May 16, 2021.