dissent">SULLIVAN, Judge,

dissenting.

The offer to prove as to Olvera's testimony related principally to police interrogation techniques as such techniques "would increase the likelihood of a false confession." Op. at 284 and 287 (emphasis supplied). This is a different issue than whether such techniques would so coerce or intimidate as to make a confession involuntary. To this extent the offer was directed to an opinion of Dr. Olvera which would be inadmissible in evidence.

I agree that Dr. Olvera's proffered testimony as to the likelihood of an involuntary confession would not have been prohibited by Callis v. State, 684 N.E.2d 233 (Ind.Ct.App.1997), trans. denied. This is so because such testimony would bear upon the weight which the jury might choose to give to the confession. But the proffered testimony was not solely of that nature. It strongly targeted whether or not the confession was false.

Mr. Casanova, the trial attorney, in his introduction to the offer to prove from Dr. Olvera, specifically stated that it was the intention to elicit Dr. Olvera's "opinion on the voluntariness of the confession." Transcript at 661 (emphasis supplied). Later, during the offer to prove itself Mr. Casanova specifically advised the court that he had "another proffer ... regarding the voluntariness of the confession ..." Tr. at 689 (emphasis supplied). Dr. Olvera in his proffer did state that in his opinion Mr. Carew's statement "was not voluntary in the sense that it was not made intelligently or knowingly." Tr. at 695. Dr. Olvera should have been permitted to give that opinion to the jury. However, Mr. Casanova crossed over the boundary between voluntariness and falsity when he obtained an affirmative response to his question as to whether the police interrogation tactics "would increase the likelihood of a false confession from someone having an IQ in the range of Mr. Carew." Tr. at 692 (emphasis supplied).

For this reason I do not agree with my colleagues that Mr. O'Connor rendered ineffective assistance of counsel for failing to challenge the trial court's exclusion of Dr. Olvera's testimony as it was represented in the offer to prove before the trial court. I am of the view that Mr. O'Connor's explanation of not wanting "to bog down the record" was legitimate strategy. Tr. at 18.

The matter of the police interrogation tactics and technique were before the court and the jury, as was Carew's IQ as testified to by Dr. Olvera. O'Connor was justified in concluding that those factors would "carry the day" as to the permissible inference which could be drawn by the jury as to voluntariness. Tr. at 13. He also made a reasonable strategic decision not to cloud up the voluntariness issue by Olvera's proffered testimony which focused upon whether the confession was likely to be false rather than whether it was involuntary. He very specifically noted the distinction between an involuntary and a false confession.

*291I would affirm the denial of post-conviction relief.

Citation profile

Relationships

How this case has been treated — in progress