By Kevin Corcoran Staff Writer December 12, 2000, Tuesday, City Final Edition Copyright 2000 The Indianapolis Star The Indianapolis Star December 12, 2000, Tuesday, City Final Edition
(INDIANAPOLIS) -- The Indiana Court of Appeals on Monday ordered a new hearing for an Indianapolis man imprisoned for the attempted murder of a policeman.
Brian K. McCary said he received poor legal assistance during his trial and appeal of convictions for attempted murder, resisting arrest and carrying a handgun without a license.
McCary was charged in September 1993, convicted by a jury and given a 40-year prison sentence. Marion Superior Court Judge Patricia J. Gifford denied McCary's request for a sentence reduction hearing.
McCary had been found guilty of firing six gunshots at Indianapolis police officer Anthony Finnell when Finnell tried to stop McCary and another man. Finnell could not identify McCary as the shooter but testified that later McCary told him, "I wasn't trying to hurt you."
Another officer, who was not contacted for the trial, said he had seen a man other than McCary walking down a nearby alley with a gun in his hands after the shots were fired.
Based on statements by McCary's attorney, Gifford ruled that not calling the police officer to testify at trial had been a tactical decision.
But the Court of Appeals disagreed, saying the defense attorney did not conduct a reasonable investigation before deciding not to call the officer.
The appellate court also ruled that McCary's appellate attorney should have argued ineffective assistance of counsel during his direct appeal, when the Court of Appeals upheld McCary's convictions and sentence.
McCary's case has been sent to Gifford for a new hearing that could result in a shorter sentence.
Contact Kevin Corcoran at (317) 615-2384 or via e-mail at email@example.com