David Pannell v. State of Indiana (mem. dec.)
2015 Ind. App. LEXIS 531
| Ind. Ct. App. | 2015Background
- David Pannell was convicted of murdering his wife based largely on testimony from two daughters and a 911 call; he was sentenced to 60 years and his conviction was affirmed on direct appeal.
- Years later Pannell filed a pro se petition for post-conviction relief claiming appellate counsel was ineffective for failing to raise numerous trial-counsel errors and asserting various prosecutorial-misconduct claims.
- The post-conviction court initially issued subpoenas for Pannell’s counsel but, after an evidentiary hearing where Pannell poorly questioned appellate counsel and pre-/trial counsel failed to appear, the court released appellate counsel and required affidavits for missing witnesses instead of reissuing subpoenas.
- Pannell moved (pre-hearing) to subpoena multiple trial witnesses and to compel discovery of the 911 tape and an accident report; the court denied those motions (the 911 tape was part of the trial record).
- The post-conviction court denied relief after Pannell failed to produce required affidavits or evidence showing that absent issues were obvious and stronger than those actually raised on appeal.
- On appeal the Court of Appeals affirmed, holding the post-conviction court did not abuse discretion and that many claims were waived or unsupported by the record.
Issues
| Issue | Pannell's Argument | State's Argument | Held |
|---|---|---|---|
| Whether court abused discretion by refusing to re-issue subpoenas for pre-trial and trial counsel | Court initially granted subpoenas; Pannell argued re-issuance was required and he had complied with affidavit rule | Court had discretion to withhold re-issuance given hearing performance, lack of probative need, and no obligation to hold another hearing | Denied — court did not abuse discretion; it could require affidavits and decline additional hearing/subpoenas |
| Whether court abused discretion by denying subpoenas for trial witnesses (officers, daughters, crime tech, prosecutor, 911 supervisor) | Testimony would show inconsistencies, false testimony, withheld evidence, and support ineffective-assistance/prosecutorial-misconduct claims | Most expected testimony duplicated or was already in the record, speculative, or not probative of stronger issues; appellate counsel not required to search outside record | Denied — subpoenas not required because expected testimony was not sufficiently relevant or probative |
| Whether court erred in denying motion to compel discovery (911 tape, accident report) | These items were nonprivileged and necessary; post-conviction discovery should allow them | Petitioner waived pretrial discovery by failing to obtain these at trial; 911 tape was already in the record | Denied — waiver of discovery; court did not abuse discretion |
| Whether court excluded evidence or erred denying petition (prosecutorial misconduct; ineffective appellate counsel) | Pannell alleged prosecutorial solicitation of perjury, withholding accident report, and appellate counsel’s failure to raise many trial errors | Many claims were known/available at trial (thus waived), speculative, unsupported by the record, or not "clearly stronger" than issues actually raised | Denied — post-conviction court properly concluded claims were waived or unsupported; appellate counsel was not shown ineffective |
Key Cases Cited
- Allen v. State, 791 N.E.2d 748 (Ind. Ct. App. 2003) (post-conviction relief is limited; court’s discretion on subpoenas)
- Curry v. State, 674 N.E.2d 160 (Ind. 1996) (standard for reversing negative post-conviction judgments)
- Graham v. State, 941 N.E.2d 1091 (Ind. Ct. App. 2011) (standard for ineffective-assistance-of-appellate-counsel review)
- Hollowell v. State, 19 N.E.3d 263 (Ind. 2014) (categories of appellate counsel ineffectiveness)
- Woods v. State, 701 N.E.2d 1208 (Ind. 1998) (appellate counsel not required to look outside the record)
- Smith v. State, 822 N.E.2d 193 (Ind. Ct. App. 2005) (trial court discretion whether to hold additional hearings)
- Brim v. State, 624 N.E.2d 27 (Ind. Ct. App. 1993) (probative value depends on tendency to prove disputed facts)
- Downs v. State, 482 N.E.2d 716 (Ind. 1985) (impeachment by inconsistent statements generally does not warrant new trial)
- Porter v. State, 700 N.E.2d 805 (Ind. Ct. App. 1998) (911 calls often admissible as excited utterance)