Decision against trying to bifurcate did not prejudice jury

Refusing to second-guess trial strategy, the Indiana Court of Appeals found an East Chicago man did not meet his burden to prove he had ineffective counsel.

Hervin s. Talley filed a petition for post-conviction relief after his convictions at trial for unlawful possession of a firearm by a serious violent felon, a Class B felony, and resisting law enforcement as a Class D felony and Class A misdemeanor. He subsequently filed a petition for post-conviction relief, claiming his attorney should have filed a motion to bifurcate the charges because he was unduly prejudged as to resisting charges when the jury heard evidence that he was a serious violent felon.

Initially police tried to detain Talley because he matched the description of a burglary suspect. He tried to run away but when police caught him, he was found with a handgun and later blurted out to the arresting officer that he was a convicted felon.

At trial, Talley’s attorney tried repeatedly to exclude his 2001 Illinois conviction for armed robbery but the Lake Superior Court allowed the evidence to be admitted.

Talley’s counsel did consider trying to bifurcate but concluded such a motion would not succeed because the facts related to the charges were interconnected. The Court of Appeals agreed, noting the prior robbery conviction could have been relevant to prove motive for resisting law enforcement. Moreover, even if a motion to bifurcate had been granted, the jury would still have heard about Talley’s prior conviction during his trial for resisting law enforcement because police would have testified that he admitted he was a convicted felon.

“If Talley’s trial counsel had filed a motion to bifurcate, the trial court would not have been obligated to grant the motion because evidence of Talley’s prior conviction for armed robbery was relevant and admissible to prove his motive for resisting law enforcement, “ Senior Judge Carr Darden wrote in Hervin S. Tallye v. State of Indiana, 45A05-1507-PC-1005. “As a result, counsel made a strategic decision not to pursue bifurcation but rather to try to exclude Talley’s prior conviction and to challenge the State’s evidence by presenting evidence that Talley never possessed the handgun. We afford deference to such decisions.”