*1 GIVAN, Justice, dissenting. respectfully majority
I from the dissent
opinion in this case. Because Court
Appeals opinion published at 589 N.E.2d unnecessary go I feel it is into out, however, point
detail. I would Appeals
conclusion reached the Court of I
follows what consider to be a well-rea- } approach case. soned to the page Appeals
At the Court of
states: sum, Department
"In IDEM [Indiana Management] is not Environmental way
bound the Decree that the Judge]
ALJ Law inter- [Administrative
preted Holding hearing it. on this is-
sue is not a collateral attack on the De- seeking
cree because IDEM is not mandates,
avoid the Decree's but is act- param- the Decree's within allowable 84-46;
eters. See Record 1945-50. found, IDEM, correctly
As the trial court upper
while bound an effluent PCB ppb,
limitation of one is not bound to
adopt an absolute maximum limitation of ppb." permit-
The fact that the Conards were not
ted to enter the federal law suit which led agreement way in no forecloses asserting rights
them from now their under agreement.
the terms of the
I1 believe the of the Court of
Appeals is well-reasoned and reaches the deny
correct result. I transfer
this case. AVERHART, Appellant,
Rufus Lee
v . Indiana, Appellee.
STATE of
No. 02S00-8808-PC-751.
Supreme Court of Indiana.
May27,1993.
PER CURIAM.
Appellant and
codefendants were
two
charged
Felony
Murder and
Murder.
by jury
finding
in a
A trial
resulted
prison
guilty. The codefendants received
*3
appellant received the death
sentences and
penalty.
appealed
The conviction was
Averhart,
affirmed
this Court
et al.
(1984), Ind.,
The facts are: On noon, approximately men three robbed the Gary Gary, The National Bank Indiana. robbery police were informed that a was progress, George and Police Officer Yaros responded to the call. He was killed in an exchange gunfire with the robbers as they exited the bank. wore a suit. All
One robbers blue opened three fire and Yaros fell to robbers ground. wearing The man the blue back, suit walked kicked Yaros's Officer him, gun away then from fired another The shot into officer. three robbers high-speed left in a A two-tone blue sedan. chase ensued which the robber's car stopped, and the man in the blue suit exited wig the car and discarded an afro he was wearing. pursuing The officer then mo- mentarily However, lost of him. view nearby workers at a construction site in- way formed the officer which had man gone they and also seen the man place pistol, bag, jacket and his in some bushes. caught sight The officer soon Defender, Carpenter, Susan K. Public lant and him clothing. Ap- identified Boots, Long-Sharp, Rhonda K. Valerie pellant was arrested and the revolver and Defenders,
Deputy
Indianapolis,
Public
for
other discarded items
recovered from
were
appellant.
security
A
officer
bushes.
also recov-
Linley
Pearson,
Gen.,
Atty.
E.
Arthur
magnum pistol
ered a .44
from behind a
Gen.,
Perry, Deputy Atty.
Thaddeus
India-
supermarket along the route of the rob-
napolis,
appellee.
escape. A
ber's
witness testified that
purpose
obtaining sympathy
he had
magnum pistol that
sold
was the .44
tests indicated that
from the
for the victim. This affidavit
appellant.
Ballistics
which killed
gun
had fired the shot
made after the decision of the Court
original appeal
that the action of the
Yaros.
Officer
regard
not
er-
reversible
pho-
there are 809
In the
record
ror.
security
tographs
taken
the bank
cam-
introduced in evidence.
era which were
At the
relief hear
exhibits,
of these
From an examination
ing,
objected to the affidavit on
the State
three
apparent that the
robbers
becomes
privilege
ground
work-product
photographs
readily can be identified.
post-conviction court sustained the ob
only
show that
one of
robbers
Delving
workings
jection.
into the inner
an afro
wearing a suit and
one had
*4
prosecuting
attorney's
office at
the
the
three
style.
apparent
hair
It also is
that all
preparation
time of
for trial would of
gloves.
wearing
The last
robbers were
work-product privi
invading
course be
photographs,
were taken
series of
which
lege.
only
can
done
where there is
This
be
death,
Yaros's
within seconds of Officer
Taylor,
fraud involved.
Hickman
exiting
three robbers
show the same
(1947).
495,
385,
67 S.Ct.
returned to the aside, into his gun and fired another shot Appellant contends the trial court erred pursued prostrate body. Appellant considering prior conviction that was captured wearing the same suit. The after the trial concluded and after vacated gun, which showed to be the mur- ballistics imposed. the death had been along weapon, der was found discarded There is no need to address this issue appellant's path flight. light remand order. of our When there is such an abundance evi *5 unerringly pointing dence IV. justify appellant, this Court cannot a rever post-conviction claims the ground very could have had sal on a which permitting in relief court erred State any bearing upon jury's little if deci separation an order of of witnesses violate (1978), sion. v. 268 Ind. See Osborne State during hearing. Al 1094. 375 N.E.2d though an order of the court entered witnesses, per separation of the State was IL. to have trial counsel re mitted Appellant claims he is entitled to a during the main seated at counsel table suppressed ex new trial because the State hearing. long entire It has been the stand culpatory Following appre evidence. State, ing practice upon separation in this appellant accomplices, hension of and his witnesses, right party that each has a police gunshot conducted residue tests in person one the courtroom to aid have on each of them. The results of the tests counsel. Abercrombie v. State inconclusive; thus, they
were
were set
Ind.,
gloves robbery. at the time of the Under circumstances, those the State was entitled he is contends entitled to presume gunshot that residue tests a new trial because he received ineffective were of no value. assistance of counsel violation of Strick case, including From the evidence in this Washington, 104 land v. U.S. photographs security taken the bank (1984). S.Ct. 80 LEd.2d 674 To at
camera, jury claim, tempt support entitled find his has this see- prayed for under expect the relief second-guess- incidents of myriad of cited a appellant's brief. adequate- tion of not he was why he feels ing as to trial, some represented in his ly Counsel above. been stated
which have VI. exceedingly an faced with this case was contends he received Appellant also present a attempting difficult task of counsel at ineffective assistance of the three The identification defense. sentencing of the trial. phases robbery and of perpetrators post-con ground, the respect to this With overwhelming. De- is of them lant as one following findings: made the court viction attorney of considera- an fense counsel was That, disclosed at the cases, defending criminal experience ble were a number proceedings, there including capital cases. testified might have of witnesses who phase of the trial con- penalty consists of in this case The trial record his fami- cerning upbringing, Petitioner's pages. When thousand nearly three - talent, education, artistic ly, overall, apparent viewed becomes life activities. other properly him defended appellant's counsel were of such witnesses That the names mag- In a case of such guilt stage. at the trial to Petitioner's not disclosed nitude, impossible for counsel virtually it is Peti- by either the Petitioner counsel respect. every perfectly operated to have mother, (sic) Averhart. Orlena tioner's by the United reality recognized This States Supreme Court Stricklond. It # # [*] [*] [*] repeatedly that a defendant held has been impression of Petitioner's it was the That trial, perfect but entitled to a is not against the evidence counsel of errors so a fair free entitled to "overwhelming" at both Petitioner was they, probability, in all egregious that he phases, and that the trial and *6 v. Brewer State caused the conviction. See done everything that could be done denied, 371, Ind., 496 N.E.2d cert. for Petitioner. 1591, 940, L.Ed.2d 107 94 480 U.S. S.Ct. post- The Record at 1288. Post-Conviction 780. concluded: conviction court an passing We also would observe effective assis- not denied Petitioner was judg- court's reveals the trial examination tri- Petitioner's tance of counsel because is rendering appellant's sentence ment in mitigat- any present failed to al counsel The quite well-prepared. thorough and phase of during the ing evidence fact, conclu- the of same is true of the trial. law, by judgment rendered sions of and counsel of Petitioner's The decision in- In each judge. court post-conviction mitigating evidence respect with stance, Indiana and the reasonable, professional the statutes of supported and of of the United States Constitutions thus, met stan- judgment, to, scrupulously adhered were Indiana ... dards. every judicial con- afforded appellant was Id. at 1246. by law. required sideration articu- Supreme Court Strickland inquiry into a defendant's two-part lated a Likewise, of Defender Public sentence or death Indiana, hearing and that his conviction at the claim coun- defense reversed because meticulously combed should be appeal, on this The Court ineffective. every assistance was presented sel's in this case and has record describing that, purposes for stated issue under conceivable duties, capital sentenc- Florida's counsel's relief. Notwith have been afforded a trial sufficiently like proceeding is competency and hard work standing the existence and in the format its adversarial trial, appellate, it need not be decision that counsel, in this case is of standards evidence ordinary trial. from an distinguished unrealistic to overwhelming it is so 930
Strickland,
686-87,
Under the
In preparation
penalty phase
sis, the burden is on the defendant
to show
defense counsel familiarized him-
performance
that his trial counsel's
statutory
self with the
mitigating
menu of
sentencing
deficient at
phase.
per
The
circumstances,
spoke
then
Averhart
inquiry
formance
must be whether coun
and his mother.
It was decided that both
objectively
sel's assistance was
reasonable
testify
judge
at the time of the
sen-
considering all the
cireumstances.
see-
tencing hearing. Defense counsel testified
step
ond
required showing
focuses on a
at the
hearing that he did
prejudice
actual
to the defendant. The de
any investigation
not make
possi-
of other
affirmatively
prove
fendant must
ble witnesses. He did not discuss with
that,
"there is a
probability,
reasonable
but Averhart or
they might
his mother what
unprofessional
errors,
for counsel's
the re
testify
judge.
to before the
put
Counsel
on
sult of
proceeding
would have been
sentencing
what he termed a "free form"
probability
different. A reasonable
is a hearing.
basically
He
asked the mother
probability sufficient to undermine confi
questions:
anything
two
whether she had
Strickland,
dence in the outcome."
court;
and,
say
she would like to
U.S. at
931 proven The exis- not a presented. necessary jury ments conclusion for the body proof availability returning guilty, of this in the tence and reach verdicts sentencing hearing. but was at trial coun- the conclusion that commands preparing in for and con- performance sel's report, in the sense that while inconclusive sentencing ducting his client's case at negative support a results do not alone deficient, probability that the gun conclusion that did not fire a have received a lesser sen- his client would robbery, during the nevertheless satisfies deficiency for this is "sufficient tence but materiality capital pun- standard at a confidence in the outcome." to undermine hearing. ishment An item is material for 694, Strickland, 104 466 U.S. at S.Ct. purpose if the failure to release it to basis, judgment of the 2068. On undermines confidence in defense counsel denying post-conviction relief trial court jury's recommendation. United States and the case remanded must be reversed 667, 682, 8875, Bagley, 478 U.S. S.Ct. in the form of a grant post-conviction Here, (1985). 87 LEd.2d hearing before the new death sentence gloves appel- connected with Exhibit judge. lant, had holes over the knuckles the size of a dime and a hole over the back of the determined in see While we have golf II, above, that hand the size of a ball. There was the failure of the State tion gun results of the shot to disclose the expert at the hear- evidence and his accom residue tests could resi- that the holes have admitted plices, conjunc data sheets made in or the gunshot due. The absence of residue on them, not a new tion with does warrant part of a chain of cireum- the disks forms charges light trial on the of the vicarious away pointing stantial evidence from lability theory upon which the case was triggerman. lant as the Confidence based, impact upon the of this failure manner evaluated sentencing phase of the trial before the respect to aggravating circumstances with respect jury is otherwise. With to this appellant cannot be maintained this at- ground, court conclud basis, judgment of mosphere. On this - ed: reversed court is also unconstitutionally Petitioner was not de- jury sentencing hearing ordered. and a new right nied his effective assistance any phase counsel and a fair trial at VIL the trial due to the State's unlawful and prejudicial suppression alleged exeul- claims case should Appellant also evidence, impeaching patory and to-wit: from his codefendants have been severed gunshot prior the results of residue tests phase. nothing see We (r) . alleged Paragraph to trial as justify position. such a There this case to Petitioner's Amended Petition. nothing in this record to indicate pros- at 1241. The any Post-Conviction Record man- presence of the codefendants counsel, jeopardized appellant's position. ner ecution did not inform defense *8 specific request the re- response to a tests, received sults of scientific had VIIL report gunshot a of a residue test written alleges Appellant appellate
reporting particles gunshot that no resi- original ineffec appeal counsel in his was due were found on the disks which had demonstrated a lack of tive and claims he Appel- been daubed on hands. ability "present errors of fundamental lant received the death sentence alone magnitude not reserved in the motion sentence, turn, in judge. That is based Here, in the case of the correct error." upon the factual conclusion reached - counsel, appellant engages in a lot of jury sentencing hearing at its that it was his counsel second-guessing as to what appellant, and not one of his two accom- preparing appellant's in have done plices, who returned to the fallen officer and fired the fatal shot That into him. appeal.
However, brought upon Ap- jury. an examination of this record ences to bear pellant states that Reuter would have testi- twenty- appellate shows that counsel raised three errors for this Court to de- separate voting impose fied that her reasons for original appeal. termine in the This the death were because - twenty- in Court's excess singled person out at trial as the who pages three most of the issues covers police officer shot from distance attempts in now to raise mitigat- feet one and a half and because no indication that presented in appeal. this There is no evidence was his behalf. ineffective assistance appellant received testimony certainly This did not come original appeal. from counsel on his exception in within the Tonner fact nothing have added to the evidence IX. otherwise before the court. We see no Appellant contends refusing in reversible error to allow Reuter during the court made numerous errors testify. post-conviction proceeding. course of the Appellant also contends the court erred implicate may Because these errors the de- permitting the State a continuance to sentence, guilt as well as of termination of pursue discovery. There merit is no what- Through interroga- we consider them all. soever to this contention. tories, appellant requested information con- bringing cerning the State's decision on expert called two wit charges against appellant conduct and its attempted testify nesses and to have them grand jury. post- before the He claims the statistically significant as to results of ordering conviction court erred in not death-qualified jury study that showed a type discovery. likely more convict than a non- to be death-qualified jury and also to have them He also claims the court that, testify opinion, appellant's should have ordered the State to furnish their proper trial counsel did not demonstrate copies complete police of all reports. Appellant attempting appellant. also contends his con- to defend In skills case, post- viction and sentence of death were tainted of fact by racial from the time of his arrest to bias conviction court stated: day imposed. the sentence was How- experts That neither of said who so ever, nothing we find in this whatsoever law, practiced testified had or been ad- support record to such a claim. practice, mitted to in the State of rulings regard claims the court's Indiana, and neither was shown be prevented demonstrating him from ra- procedures Gary, familiar with the of the cial bias. County, Indiana or Lake Indiana Police Departments.
Appellant called Jackie Reuter as a experts That neither of said had been witness. Reuter on the served original attendance at the trial and nei- appellant. objected convicted The State provided ther with the entire been ground jury's that the verdict cannot be transcript proceed- impeached. court sus ings. objection tained the and refused to allow testify. support posi Reuter to of his Post-Conviction Record at 1234. tion, appellant cites Tanner v. United experts The court found that one of the States, 488 U.S. 107 S.Ct. attorney was an from the Public Defend- proposition L.Ed.2d 90 that a er's Office the State of Illinoisand had
juror
testify
should
to
be allowed
as
experience
trying
supervising
in
and
despite
reasons for the verdict
the rule
trial of other Public Defenders in death
against
juror
impeachment of verdicts.
cases,
opinion,
in that
and
witness's
However,
exception
development
Tanner
for
there had been considerable
in
prejudicial
improperly brought
information
years
capital
recent
in
of the manner
jury's
to the
attention or for outside influ-
cases should be tried and that his
competence
1988,
to the trial counsel's
would
petition
as
filed a
for writ
November of
the same if rendered in 1982. of
certiorari,
not have been
asking this
Court
to order
certify
the trial court
his sealed offer to
the court
the other
Likewise
found
prove.
The offer related to what the
expert
professor
was an active associate
of
designated
newly-discovered
evi-
lant
University
at Indiana
School of Law
law
concerning irregularities
police
in the
dence
in
and had authored articles
books about
investigation
department regarding the
tactics,
jury cases
tried six
preservation
in his
of evidence
case.
career,
professional
and had
his
sitting in a
tried one murder case while
In
issued
November of
Court
penal-
He had tried no death
second chair.
granting
petition
such a
for
an order
cer-
cages.
ty
experience
His trial
was limited
July
tiorari.
In
of
filed a
York
practice
to his
in the states of New
Request
Supplement
"Verified
Ez Parte
and North Carolina.
August
Offer to Prove."
Court issued an order to remand this case
further
that there was
The court
found
in
the trial court
order that
experts
testimony
no
from either of these
appellant's alleged newly-discover-
examine
as to what trial counsel did or did not do
police
pertaining
ed evidence and the
files
representation
that was a
his
Court, however,
ap-
thereto. This
denied
mockery
justice
shocking
or so
to the
pellant's request that this
done in the
be
disqualify appel-
that it
conscience
absence of the
and ordered that an
under the
rule.
lant's counsel
Strickland
agree
hearing
judge
court in
held
the trial
We
camera
be
regard
find
presence
parties.
its observations and
no error
of both
rulings
court's
as to
remand,
Upon
the trial court conducted
these witnesses.
hearings with both counsel for
in camera
findings
also claims the
of fact
present.
defendant
and the State
Due to
post-conviec-
and conclusions of law of the
allegations, it
the nature of the
was neces-
inadequate.
tion relief court were
Rather
sary
judge
for the trial
to travel from Fort
however,
being inadequate,
post-
than
County
inspect
police
Wayne to Lake
findings
conviction court's
of fact and con-
County.
records
Lake
thorough
clusions of law are so
and de-
30, 1992,
July
judge,
after
On
they might well
a
tailed that
be used as
many
meticulously exploring each of the
judges presiding
post-
model for other
allegations contained in
claims
hearings.
conviction relief
improper
newly-discovered
evidence
part,
attempted
For the most
the issues
Court,
conduct,
report
to this
made his
by appellant
portion
to be raised
fact and conclu-
including
nothing
attempt
are
more than an
brief
considered
sions of law. The trial court
complete
a
to have
reevaluation of his ar-
items,
different
includ-
evidence of thirteen
rest,
trial,
charge,
prosecu-
a
an unrevealed statement of
original appeal.
Indiana Post-Conviction
witness,
1948 conviction
tion
an undisclosed
specifically
post-convie-
states that
Rule
prosecution
for reckless homi-
of a
witness
remedy
appeal.
tion
is not a
for
substitute
cide,
tapes
time of the
dispatch
made at the
only justification
raising
these is-
suspect
indicating
possible
a
fourth
crime
attempt
in an
sues at this time is
to demon-
suit,
wearing
grey
expense payments
performance
ineffective
of trial and
strate
witnesses,
prosecution
special police
es-
appellate
counsel. This
has
day
cort for
on the
two witnesses
justification.
failed to
demonstrate
prosecution
joint meetings between the
witnesses,
photo array two crucial
and a
post-convic
claims the
Among
things,
prosecutor's
file.
other
inspect
tion court erred when it failed to
the State's files in camera to determine
remand concluded that
the trial
materiality
the items lacked
to either
sup
whether additional evidence had been
punishment,
they
did not demon-
pressed.
briefing
In order to facilitate the
acts of
appeal,
appellant,
perjury
of this issue on
in strate the use of
or other
*10
brief,
In
also
prosecution
police
misconduct
or
his remand
(1) did not
suppression,
exploitation,
claims the trial court on remand
the nature of
integrity
po
defense,
adequately insure the
of the
and that
interference with the
camera,
(2)
and
existence, nature,
lice files to be examined
handling did
their
and
excluding
testimony
of code-
erred
process.
not show a denial of federal due
(1), above,
respect
to
fendant North. With
remand,
Following
additional brief
given multiple opportunities
appellant was
light
ing was allowed.
In
of our remand
identify possible files
evidence in the
and
sentencing hearings,
for new
we need not
prosecution;
specific named
hands of the
consider the items of evidence and their
designated
gather
of the
officer was
all
pun
materiality
handling
and
in relation to
files;
police
prosecutor
and the
assured the
right
ishment. The denial of the federal
that all files had
turned
trial court
been
process adequate.
occurs,
over. We find this
trial
a conviction must
a fair
and
be
reversed,
posited
if the evidence
is material With
(2), above,
respect
there was no
suppression
under
the sense that
its
evidentiary ruling,
such final
but
preliminary
pre-hearing
mines confidence in the outcome of the
in the
issued
trial,.
Bagley,
v.
473 U.S.
that,
United States
period
privilege
if
were claimed
(1985).
hearing,
search for
treatment
of some of the witnesses was
finally claims
ordinary
support
usual and
and does not
an
court was in error
purchase,
inference of their coercion or
rejecting his claim that there was error
photo
there was no indication that
ar
charge
felony
the instructions on the
ray
employed.
was ever
murder.
claims that
the instrue-
supported
of the
conclusions
trial court are
they
tions were erroneous
in that
did not
by the record and affirmed.
require
prove
felony
the State to
a class A
claim,
robbery.
respect
With
Appellant argues that this Court should
post-conviction court found:
as a matter of state constitutional
law
properly
That the trial court
instructed
adopt
governing prose-
a stricter standard
jury
on the elements of the offense
suppression
cutorial
claims than that em
Felony-Murder, including
underly-
ployed in
system,
sup
the federal
and in
ing felony Robbery,
under 1.0. 85-42-
port cites the action of the Minnesota Su
1-1 and 1.0. 35-42-5-1.
preme
Court
Kaiser
jury
That the trial court instructed the
Minn.,
case,
of death and to
in the form of new sentenc-
ing hearings, inor the absence of such new
hearings, imposition of a sentence of
years.
SHEPARD, C.J., DeBRULER, KRAHULIK, JJ., concur.
DICKSON and
GIVAN, J., separate dissents with
opinion.