Zоlo Agona AZANIA, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
No. 02S00-0009-SD-538
Supreme Court of Indiana
Nov. 22, 2002.
778 N.E.2d 1253
In determining whether a trial court abused its discretion by declining to give a tendered instruction, we consider the following: (1) whether the tendered instruction correctly states the law; (2) whether there was evidence presented at trial to support giving the instruction; and (3) whether the substance of the instruction was covered by other instructions that were given. Mayes v. State, 744 N.E.2d 390, 394 (Ind.2001).
Lampkins’ tendered instruction on self-defense correctly stated the law and the substance of the instruction was not covered by othеrs. The only issue is whether Lampkins presented evidence that he acted in self-defense. To establish a claim of self-defense, a defendant must show that: (1) he was in a place where he had a right to be; (2) he acted without fault; and (3) he had a reasonable fear of death or great bodily harm. Wallace v. State, 725 N.E.2d 837, 840 (Ind.2000). A claim of self-defense cannot be supported, however, when the evidence clearly indicates that the defendant knowingly and intentionally shot his victim in the back and that the victim did nothing to provoke the attack. Smith v. State, 470 N.E.2d 1316, 1319 (Ind.1984). Such is the case here. Lampkins and Jones were not arguing prior tо the shooting. The two had not even spoken to one another. Further, there is no evidence indicating that Jones himself was armed or had threatened Lampkins in any way. Nor was shooting Jones justified by Lampkins’ fear of the crowd. Accordingly, there was no abuse of discretion when the trial court refused to give Lampkins’ tendered instruction on self-defense.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ. concur.
Jesse A. Cook, Deputy Public Defender, Terre Haute, IN, Michael E. Deutsch,
William Goodman, Jaykumar A. Menon, New York, NY, Monica Foster, Indianapolis, IN, Brief of Amici Curiae.
Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
ON APPEAL FROM THE DENIAL OF SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF
BOEHM, Justice.
Zolo Agona Azania, formerly known as Rufus Averhart, was convicted of murder and sentenced to death. In this appeal from the denial of his second petition for post-conviction relief, Azania argues that his death sentence must be vacated because the jury that recommended imposition of the death penalty was the product of a system for jury pool selection that systematically and materially reduced participаtion of African-American jurors.
In an ordinary lawsuit we would not find the irregularities in the Allen County jury selection process sufficient to require a reversal. The disproportionate reduction of African-Americans in the jury pool was, as the Chief Justice‘s dissent observes, the result of a “computer glitch,” more precisely, a flawed program, not a hardware defect. But computer failures can have serious consequences, and this is an example of that. Because of the heightened need for public confidence in the integrity of a death penalty, we concludе that although the conviction was proper, the jury pool selection process was fundamentally flawed, and reversal of the death penalty and a new penalty phase or resentencing is required.
Factual and Procedural Background
Azania was convicted of murder and sentenced to death for the 1981 slaying of Gary Police Lieutenant George Yaros in the course of a bank robbery.1 In 1984, this Court affirmed his conviction and sentence on direct appeal. Averhart v. State, 470 N.E.2d 666 (Ind.1984). Azania was denied post-conviction relief, and in a 1993 appeal from that ruling, this Court affirmed Azania‘s conviction but reversed his sentencе, citing ineffective assistance of counsel at the sentencing phase and the failure of the prosecution to provide gunshot residue test results to the defense. Averhart v. State, 614 N.E.2d 924, 930 (Ind.1993).
After remand for a new penalty phase, Azania unsuccessfully moved to strike the entire jury pool on the ground that it did not represent a reasonable cross section of the community. A new jury was impaneled and it also recommended death. After the trial court again sentenced Azania to death, this Court affirmed the sentence on direct appeal. Azania v. State, 730 N.E.2d 646 (Ind.2000). Azania was then granted leave to file a successive petition for post-conviction relief on two grounds: newly discovered evidence, and alleged abnormalities in the Allen County jury pool selection system. Azania v. State, 738 N.E.2d 248 (Ind.2000). The successive post-conviction court denied relief, and this appeal followed.
I. Jury Pool Selection
A. The Statutory Standard
The method by which jury pools are selected in Indiana is governed by statute.
B. Allen County‘s System of Pool Selection
The computerized system used to select the jury pool for Azania‘s 1996 sentencing recommendation hearing was designed in 1980. The successive post-conviction court found that the system had four flaws, the net effect of which was exclusion of a number of jury pool members who resided in Wayne Township from the possibility of being called to serve. Specifically, in 1996, when Azania‘s penalty phase was retried, these problems excluded 4364 of 5013, or 87%, of Wayne Township voters from jury service. In that year, the countywide jury pool was 14,364.
1. Overview of the Problem
The problem in Allen County‘s jury selection procedures may be readily stated in broad overview. The number of jurors needed for 1996 was first identified as 14,000. The program then selected 14,364 registered voters to be assigned a random number. Only persons assigned a number could be drawn for a panel. The assignment stopped after 10,000 voters had received numbers. Because the program worked through the voter list by township in alрhabetical order, all of the excluded 4364 registered voters were Wayne Township residents. As a result, 87% of Wayne Township was excluded. This had a materially disproportionate effect on African-Americans because African-Americans comprised 8.5% of the total population of Allen County, and three fourths of that 8.5% resided in Wayne Township. The remainder of this Part I:B explains the details of how this occurred. Its legal implications are addressed in Part C.
2. Truncation
The first problem resulted from a truncation feature embedded in the program since 1980. The program would first read the registered voter list and determine the total number of registered voters in the county and in each township. The program would then determine the percentage of all Allen County registered voters who resided in each township. Before
3. The Effect of Growth in the Requested Number of Jurors
Regardless of how many names were included on the master jury pool list, from the outset the program assigned random numbers—necessary for actual selection to serve—to only 10,000 voters. When the list exceeded 10,000 names, the effect of this was to cut the list off at 10,000. From 1980 to 1994, the court administrator requested annual master jury pools of 10,000 people. During that period, the approximately 500 excess jurors produced by the truncation feature were excluded from service, but only those 500 jurors were affected. In 1995, however, the requested number grew to 12,000 jurors, and the truncation feature added another 693, so 12,693 voters were selected. As a result of assigning a random number to only 10,000 jurors, 2693 of those jurors could not be called to serve. In 1996, the year of Azania‘s resentencing, the requested jury pool was 14,000, and the truncation feature added 364 names. As a result of the limitation to 10,000, 4364 of those did not receive random numbers and could not serve.
4. The Accident of the Alphabet
Finally, and importantly, the computer organized the county jury pool by town-
Azania argues that the result of these problems was that in the quarterly draw from which his jury pool was taken, African-Americans—who in a truly representative system would have comprised 8.5% of the pool—in fact comprised only 4.4% of the pool. The post-conviction court rejected Azania‘s calculation as unreliable. The court ruled that using 1990 census data “as a proxy for the racial composition of the 1996 voter registration list“—as well as using a mathematical formula to estimate the number of African-Americans in the quarterly draw from which Azania‘s jury was comprised—was akin to “asking the court to make an inference from an inference, something the court is not allowed to do.” The post-conviction court may be correct that African-Ameriсan citizens do not necessarily register to vote in proportion to their population, but Allen County did not maintain racial information about the voter list and we have nothing to go by except the census. Both the United States Supreme Court and the lower federal courts have repeatedly upheld the use of census figures in constitutional assaults on jury selection procedures. See Duren v. Missouri, 439 U.S. 357, 365, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979) (upholding the use of six-year-old census data in fair cross-section challenge); Alexander v. Louisiana, 405 U.S. 625, 627, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972) (upholding the use of six-year-old census data in equal protection challenge); Davis v. Warden, 867 F.2d 1003, 1014 (7th Cir.1989); United States v. Osorio, 801 F. Supp. 966, 977-78 (D.Conn.1992). We agree with the сourts that have concluded that under these circumstances a “defendant should not be expected to carry a prohibitive burden in proving underrepresentation.” Davis, 867 F.2d at 1014. Similarly, because no statistical data was available regarding the number of African-Americans in the quarterly draw from which Azania‘s jury was comprised, it was appropriate for Azania‘s expert witness to use a mathematical formula derived directly from the operation of Allen County‘s computerized system to estimate that number.
C. The Effect of the Elimination of 87% of Wayne Township from Jury Service
The United States Suрreme Court has long held that “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” Taylor v. Louisiana, 419 U.S. 522, 528, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). We think our state statute, in requiring an “impartial and random selection” demands no less. Although we reach our holding today under
The federal courts have developed two competing tests under the Sixth Amendment to determine if a jury pool adequately represents the community. Under the absolute disparity test, the “disparity” is the difference between the percentage of the distinctive group eligible for jury duty and the percentage represented in the pool. In this case, where the percentage of African-Americans eligible for jury duty in Allen county is 8.5% and the percentage represented in the pool is 4.4%, this amounts to an absolute disparity of 4.1%. Under the comparativе disparity test, the “disparity” is calculated by dividing the absolute disparity by the percentage of the group eligible for jury duty. Here, that results in the division of 4.1% by 8.5%, for a comparative disparity of 48.2%. Put differently, as the result of flaws in Allen County‘s system, African-Americans as a group had roughly half the chance of being included on a jury panel than a truly random system would have produced. Nevertheless, the post-conviction court concluded that in Azania‘s case the computerized system “impartially and randomly select[ed] citizens to be jurors, and thus substantially complie[d] with [
As the Supreme Court of the United States held in Powers v. Ohio, 499 U.S. 400, 413, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991):
The purpose of the jury system is to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair. The verdict will not be accepted or understood in these terms if the jury is chosen by unlawful means at the outset.
The Indiana jury selection statute is designed to ensure that the method used to selеct a jury is not arbitrary and does not result in the systematic exclusion of any group. The United States Supreme Court has long emphasized that “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” California v. Ramos, 463 U.S. 992, 998-99, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983). The Supreme Court has also held, in a death penalty case, that a jury‘s being chosen from a fair cross section of the community is “critical to public confidence in the fairness of the criminal justice system,” and that the systematic exclusion of “identifiable segments playing majоr roles in the community cannot be squared with the constitutional concept of jury trial.” Taylor, 419 U.S. at 530. Widespread concern over the fairness and reliability of death sentences demands that the courts and the public have no significant doubts as to the integrity and fairness of the process. These same considerations require heightened sensitivity in a death penalty case in determining whether a jury selection system is “random” and “impartial” as required by Indiana law.
In this case, Azania properly preserved his right to contest the impartiality of the computerized system by moving to strike the entire jury pоol. As the court below noted, the system‘s programming error excluded 4364 people—roughly one-third of the jury pool—from possible service, and reduced by nearly one-half the odds that an African-American would appear on the jury panel. Every one of the excluded jury pool members was from
Finally, as the dissent observes, in 1982 Azania requested a transfer of this case from Lake County, where Officer Yaros was slain. Unlike the dissent, we do not consider that to be relevant here. Azania exercised his right under generally applicable procedures to seek a transfer to another county. In so electing, he did not forfeit his right to a properly selected jury in the new county, whatever its demographic composition.
II. Change of Judge
Prior to his second post-conviction hearing, Azania twice unsuccessfully moved for a change of judge pursuant to
The pertinent historical facts recited in Azania‘s affidavits in support of his motions for a change of judge were that (1) the trial judge was personally involved in the investigation of the computer problems and, if not serving as judge, might be called as a witness in the case, (2) because of the destruction of some of the jury selection evidence, the court would be called upon to assess the credibility of some Allen County court employees and judicial officers, and (3) after the judge became aware of the problems, he did not notify Azania of any problems with the computer system, even though the judge had recently presided over Azania‘s sentencing hearing with a jury selected by the same system. Our holding in Part I of this opinion renders moot Azania‘s first two historical facts. As to the remaining one, we do not believe the trial judge‘s failure to notify Azania of problems with the computer system raises a rational inference of bias against Azania. Azania points to no authority requiring—or even suggesting—such a notificatiоn by a trial judge to a defendant in a closed matter. Nor are we aware of any. The trial court‘s denial of Azania‘s motions for a change of judge was not clearly erroneous.
III. Allegedly False Testimony
At Azania‘s 1982 trial, James McGrew identified Azania as the man McGrew saw place a pistol and jacket in some bushes not far from the scene of the robbery. McGrew also testified that when a police officer pursuing Azania approached McGrew, McGrew told the officer, “I believe that the guy you‘re looking for is over there,” and pointed in the direction Azania had gone. McGrew testifiеd that when the officer returned “about a minute later,” with Azania now face down in the back of a
In a 1995 deposition in preparation for Azania‘s penalty phase retrial, McGrew recanted his earlier testimony and identification. In a 2001 videotaped deposition prepared for Azania‘s successive post-conviction proceeding, McGrew claimed that he had never been able to identify Azania as the man he saw place the objects in the bushеs, and that he told this to police and prosecutors, but that they pressured him to make the identification at trial anyway. McGrew claimed that when he was interviewed at the Gary police station, he saw a photograph of Azania and Azania‘s name on a bulletin board behind the officer who interviewed him, and that the officer pointed to the picture and told McGrew that Azania had killed a police officer. McGrew also testified that in 1982, while waiting in a room adjacent to the courtroom and preparing to testify, an armed man McGrew assumed to be a bailiff pointеd Azania out to McGrew through the room‘s doorway. McGrew claimed he felt threatened by the armed man‘s action and the trial atmosphere, and was afraid that if he did not identify Azania his own life would be in jeopardy. McGrew testified that he could not otherwise have identified Azania, since he never saw the face of the man who placed the objects in the bushes.
Former Lake County Deputy Prosecutor James McNew, who assisted in the 1982 prosecution of Azania, testified that he was never aware that McGrew allegedly could not identify Azania. McNew denied directing anyone tо coerce McGrew into identifying Azania, and testified that he did not consider Azania‘s identity a problem at trial in light of the other evidence of Azania‘s guilt, including security camera photographs from the bank and clothing evidence. McNew testified that to present a complete story to the jury, the State would have asked McGrew on direct examination if he could identify Azania even if the State knew McGrew could not do so.
Captain Michael Nardini interviewed McGrew the day after the murder in an interview room at the Gary police station. Nardini testified that McGrew told him McGrew сould identify the man who placed the objects in the bushes. Nardini also testified that there was no bulletin board in the interview room, that he did not remember a photograph of Azania being posted anywhere in the station at the time of the interview, that at the time of the interview he did not know that Azania was a suspect in the case, and that he did not tell McGrew that Azania killed a police officer.
Allen County Deputy Sheriff Jerry Fruchey served as a bailiff during Azania‘s trial and closely meets McGrew‘s description of the “armed man” who allegedly pointed Azania out to McGrew. Fruchey testified thаt he did not remember ever speaking with McGrew, did not tell him to identify Azania, did not point out Azania, and did not in any way threaten McGrew.
The successive post-conviction court considered all this evidence and held that McGrew‘s deposition testimony was not credible and accordingly did not satisfy the nine-prong test for newly discovered evidence mandating a new trial. See Carter v. State, 738 N.E.2d 665, 671 (Ind.2000). Substantial evidence contradicts McGrew‘s recantation of his trial identification. First, as is true of all recanted testimony, McGrew‘s 1982 trial testimony directly contradicts his current claims. Second, his current claims contrаdict his statements to police at the time of Azania‘s apprehension and to Nardini the next day. Third, his claim that he was intimidated by an armed man is contradicted by Fruchey.
Conclusion
The successive post-conviction court erred when it concluded that Allen County‘s computerized jury selection system substantially complied with
SULLIVAN and RUCKER, JJ., concur.
SHEPARD, C.J., dissents with separate opinion, in which DICKSON, J., concurs.
DICKSON, J., dissents, believing that this accidental, inadvertent, and impartial exclusion of jurors did not undermine Allen County‘s essential substantial compliance with the statutory method for sеlection of jury pools, and that any error was harmless in light of the overwhelming evidence of aggravators which have previously led two separate penalty phase juries to unanimously recommend the death sentence.
SHEPARD, Chief Justice, dissenting.
Zolo Azania and two cohorts burst into the Gary National Bank in broad daylight with guns drawn. By the time they were ready to depart with the money, the bank‘s security camera was already recording the robbery and an alarm had summoned the police.
The trio decided to shoot their way out, and exited the bank with guns blazing at the uniformed officer who had arrived on the scene.
They ran past the fallen body of Gary Police Lieutenant George Yaros and headed for the getaway car. Not content merely to take off, Azania went over to the officer, kicked his gun away, then put yet another shot into him at close range. After that, the three perpetrators led police on a chase through the streets of Gary at 80-100 mph, firing back at the pursuing officers. All of this has been largely settled fact for more than a generation.
In the meantime, twenty-four jurors and two different trial judges have unanimously agreed that the State‘s request for the deаth penalty was a just one.
In the face of this, the judgment of judge and jury is today set aside on the basis of a computer glitch.
Equally unattractive is Azania‘s play of the system. He seeks relief on the grounds that a mathematically perfect computer run would enhance his chance to have an African-American on the jury. He asserts that having even one black juror is crucial to his cause. Of course, the reason that even an ideal, random jury pool might still produce an all-white jury is that this litigation was transferred, at Azania‘s request and with his participation, to a county with a modest minоrity population. The State filed these charges in Lake County, where Azania would have had the most diverse jury pool Indiana has to offer. He asked to get away from that jury pool, citing reports of his crimes on Chicago television, and he was accommodated.
I would find that the jury was assembled in substantial compliance with the statute
DICKSON, J., concurs.