Lead Opinion
Mark Douglas appeals the denial of his petition for post conviction relief, raising the following issues:
1. Whether the post-conviction relief court erred in finding Douglas's petition barred by laches;
2. Whether the post-conviction relief court erred in finding that the trial court sufficiently instructed the jury on the element of intent;
3. Whether the post-conviction relief court erred in finding that the trial court's failure to properly instruct the jury on the defense of voluntary intoxication was harmless;
4. Whether the post-conviction relief court erred in finding that the trial court properly admitted evidence of Douglas's prior incarceration at Boy's School;
5. Whether the post-conviction relief court erred in finding that the trial court properly instructed the jury on the State's burden of proof and the presumption of innocence;
6. Whether the post-conviction relief court erred in finding that Douglas received effective assistance of trial and appellate counsel; and
7. Whether Douglas received ineffective assistance of counsel at the hearing on his post-conviction relief petition.
We affirm the denial of Douglas's petition for post-conviction relief.
FACTS
The facts were succeinetly stated by the supreme court in Douglas's direct appeal:
On November 13, 1982, appellant and an accomplice went to Lowell Fitch's home and asked to see Chris Hych, the son of Fitch's cohabitating fiancee. When Fitch responded that Chris did not live there anymore, appellant pulled out a sawed-off shotgun. Even though Fitch tried to slam the door shut, appellant managed to fire two shots. Fitch received injuries to his right hand and left shoulder.
Douglas v. State (1985), Ind.,
STANDARD OF REVIEW
Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, Section 5; St. John v. State (1988), Ind.App.,
LACHES
Douglas first raises the issue whether the PCR court erred in finding that his petition for relief was barred by laches. The PCR court found that Douglas was aware of post-conviction relief and the Public Defender's Office in 1985, because Douglas wrote a letter to the trial court requesting a copy of his transcript on September 19, 1985, so that he could begin "preparing adequate post-conviction action." The PCR court also found that Douglas filed his petition on September 25, 1986, and that Douglas's attorney filed three amendments and substituted every issue alleged in the original petition. "Thus, the delay in filing a petition has been from petitioner's conviction in 1983 until 1992." R. 99-100. The PCR court found the delay unreasonable. The PCR court also found that the State had been prejudiced by the delay because the State was not able to locate Donna Evans and because Lowell Fitch had died.
"For laches to bar relief, the State must prove by a preponderance of the evidence, first, that the petitioner unreasonably delayed in seeking relief and second, that the State has been prejudiced by the delay." Holland v. State (1993), Ind.App.,
[Laches] is the neglect for an unreasonable length of time, under cireamstances permitting diligence, to do what in law should have been done. It is an implied waiver arising from knowledge of existing conditions and an acquiescence in them, the neglect to assert a right, as taken in conjunction with the lapse of time, more or less great, and other cireumstances causing prejudice to the other party and thus acting as a bar in a court of equity.
Twyman v. State (1984), Ind.,
The PCR court erred in concluding that laches barred relief on Douglas's petition. Within one month of the supreme court's decision affirming Douglas's direct appeal, Douglas requested a transcript so that he could begin preparing a PCR petition. It took several months for him to finally receive the transcript and he still filed his petition a mere one year after his conviction had been affirmed. The PCR court appeared to find relevant, and the State at oral argument focused on, the delay between the filing of the petition and the hearing on the petition. We have found no cases, and
The PCR court found that Douglas was aware of his right to post-conviction relief in 1985 when he requested his transcript. Less than a year after receiving the transcript Douglas filed his PCR petition. From that time until 1991, Douglas was represented by the State Public Defender's Office. After waiting more than four years for action on his petition, Douglas hired private counsel to proceed with his petition. We refuse to penalize Douglas for the delays caused by the Public Defender's Office. One arm of the State (the Prosecutor) may not take advantage of a delay created by another arm of the State (the Public Defender) to the detriment of the defendant. While we recognize the burdensome caseload of the Public Defender's Office and the high turnover of attorneys resulting in delays, as between a defendant and the State, the defendant will not be penalized for the delays. The PCR court's findings do not support the conclusion that Douglas unreasonably delayed seeking relief. Because we determine that the PCR court erred in finding laches on the basis of an unreasonable delay, we need not discuss whether the PCR court correctly found that the State was prejudiced by the delay.
INTENT INSTRUCTION
Douglas next argues that the PCR court erred in finding that the trial court adequately instructed the jury on the element of intent. At trial, the jury was given the following instructions:
INSTRUCTION NO. 8
Robbery is defined in Indiana by statute as follows:
A person who knowingly or intentionally takes property from another person or from the presence of another person:
(1) by using or threatening the use of force on any person;
(2) by putting any person in fear commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon, and a Class A felony if it results in either bodily injury or serious bodily injury to any other person.
INSTRUCTION NO. 4
A person engages in conduct "intentionally" if, when he engages in the conduct, it is his conscience objective to do so. A person engages in that conduct "knowingly" if, when he engages in that conduct, he is aware of a high probability that he is doing so.
INSTRUCTION NO. 5
ATTEMPT: A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime charged.
Trial R. 55-57. Douglas argues that the jury was not instructed that in order to convict him of attempted robbery, he must have acted with the specific intent to rob Fitch. To avoid waiver because no objection was made and no alternative instructions were tendered at trial, Douglas argues that the error is fundamental and also argues that his trial and appellate counsel were ineffective for failing to preserve the issue.
Specifically, Douglas argues: "Since the term 'culpability' used in Instruction No. 5 does not require 'specific intent' but allows a conviction based upon acts knowingly committed, the court failed to instruct the jury on an essential element of an attempt crime which the State had the burden of proving beyond a reasonable doubt." Appellant's Brief, p. 23. Although all of the cases cited by Douglas in support of his argument addressed the specific intent instruction issue in the context of attempted murder, the Indiana supreme court addressed the necessity of a specific intent instruction for attempted burglary in Alexander v. State (1988), Ind.,
the State must have proven beyond a reasonable doubt each of the following elements: §
(1) That the defendant
(2) knowingly and intentionally
(3) engaged in conduct as described in the Information and that such conduct was a substantial step toward the commission of the crime of Burglary.
Id. The jury was also instructed that the State must prove every element of each offense. The court concluded: "When all instructions are taken as a whole, there can be no doubt the jury was fully informed that in order to be guilty of attempted burglary the appellant must have had specific intent to commit the burglary." Id. Justice DeBru-ler dissented, pointing out that in Smith v. State (1984), Ind.,
Douglas appears to make an argument that the evidence at trial indicates that Douglas did not have the specific intent to commit robbery. However, in Douglas's direct appeal the supreme court found that the evidence established the intent to commit robbery. Thus, that issue has been decided and res judicata prevents us from reviewing it again.
INTOXICATION DEFENSE
At Douglas's trial, the trial court read to the jury the following instruction:
INSTRUCTION NO. 10
There was some evidence introduced during the trial indicating that the defendants may have been intoxicated at the time of the offense charged in the Information.
You are instructed that voluntary intoxication is not a defense to the charge of Attempted Robbery or the lesser included offense of Battery, a class C felony.
T.R. 62.
Douglas argues that it was error for the court to give this instruction and that the court should have given the jury an intoxication defense instruction. At the time the jury was instructed in Douglas's trial, July 8, 1983, the instruction given by the trial court was a correct statement of the law. At that time, Ind.Code 85-41-8-5(b) provided that voluntary intoxication was a defense "only to the extent that it negates an element of an offense referred to by the phrase 'with intent to' or 'with an intention to."" See Pavey v. State (1986), Ind.,
The PCR court erred in allowing Douglas to present the evidence. Trial counsel was not ineffective for failing to object to the trial court's instruction and failing to present the evidence of intoxication at trial because at that time the defense was not available. An attorney is not required to prophesy future court rulings and act in accordance with them. McChristion v. State (1987), Ind.,
The evidence presented at the trial and at the PCR hearing is that Douglas showed up with three other young men at Morrison's house a few hours before they went to Fitch's home. Douglas and the others had a one-half quart bottle of whiskey, which was partially empty when they arrived at Morrison's. All five of the boys together drank more than half of the bottle. The boys also ingested some valtums and smoked martjua-na. Morrison testified that Douglas was staggering and slurring his speech, but they were all able to walk to Fitch's house. In light of the fact that Douglas was able to knock on Fitch's door and ask for Chris Hych, as planned, to fire off two shots at Fitch while Fitch attempted to close the door, and then to have the presence of mind to hide the shotgun and make his way back to Morrison's home, the PCR court correctly concluded that the evidence of intoxication could not create a reasonable doubt that Douglas entertained the requisite intent.
In a related vein, Douglas argues that the trial court erred in not finding that his intoxication was a mitigating factor at sentencing. However, this argument was not raised in Douglas's PCR petition, nor argued at the PCR hearing. Thus, the issue has been waived. Badelle v. State (1983), Ind.,
JUVENILE RECORD
Douglas argues that the PCR court erred in concluding that the trial court properly admitted evidence that Douglas had been in Boys School prior to the charge for which he was being tried. At trial, statements by Douglas and his co-defendant, Kevin Morrison, were admitted that contained references to the fact that Douglas and Morrison met at Boys School and there discussed the plan to steal things from the home of Chris Hych. The court also allowed Morrison to make references to Douglas's incarceration at Boys School while Morrison was testifying. Once again, Douglas's trial counsel did not object to the evidence so, to avoid waiver, Douglas contends his trial and appellate counsel were ineffective for failing to preserve the issue.
The PCR court found that the references to Boys School were properly admitted as part of the res gestae of the crime because that is where the crime was planned, and, even if admission of the evidence was error, it was harmless because the evidence at trial of Douglas's guilt was overwhelming.
Juvenile records are not admissible at trial for impeachment purposes. Boyko v. State (1991), Ind.App.,
Here, the fact that Douglas had been in Boys School was not merely a passing reference and it was clear that he had been in Boys School before the commission of the crime for which he was being tried. Thus, although the evidence was not being admitted to impeach Douglas, it was erroneously admitted because it left the jury with the clear impression that Douglas had committed prior crimes. Nor do we believe the evidence was properly admitted as part of the res gestae of crime. It was significant that Douglas and Morrison had discussed and planned the crime in advance; it added nothing for the jury to know where the discussions had occurred. However, the PCR court properly found that the error was harmless. Not only did both Fitch and Evans identify Douglas as the person who shot Fitch, Morrison also identified Douglas and Douglas himself confessed in a statement to police that was admitted at trial. Any error in the admission of evidence referring to Boys School was harmless.
PRESUMPTION OF INNOCENCE
Douglas argues that the PCR court erred in finding that the trial court's instruction to the jury on reconciling the evidence did not undermine the presumption of innocence nor shift the burden of proof to the defendant. The following instructions were given to the jury:
INSTRUCTION NO. 1
To the Information in this case, the Defendants have entered a plea of not guilty which makes it incumbent upon the State of Indiana to prove to your satisfaction beyond a reasonable doubt, each and every material allegation of said Information constituting the particular crime charged, or the lesser included offense therein.
The burden of proof in a criminal case is upon the State alone and it never shifts to the Defendant.
[TR. 54, our emphasis.]
INSTRUCTION NO. 11
The fact that an information has been filed charging the Defendants with the commission of a erime does not give rise to any presumption of guilt and is not to be considered by the Jury as any evidence of guilt. On the contrary, it is a fundamental concept in our law that the Defendants come into court presumed to be innocent of the charge, and this presumption remains throughout the trial of the case until and unless it is overcome by competent proof of guilt beyond a reasonable doubt.
Since the Defendants are presumed to be innocence [sic], they are not required to present any evidence to prove their innocence, or to prove or explain anything. If at the conclusion of the trial there remains in your mind a reasonable doubt concerning the Defendants' guilt, you must find them not guilty. Every reasonable doubt arising from the evidence, the lack of evidence or a conflict in the evidence in this case must be construed in favor of the Defendants.
[TR. 68, our emphasis.]
INSTRUCTION NO. 18
You, the jury, are the sole judges of the credibility of the witnesses and of weight to be given to their testimony. You should reconcile the evidence in this case upon the theory that each and every witness has spoken the truth, if you can reasonably doso. You should not disregard the testimony of any witness without a reason and without careful consideration. If, however, you find a conflict in the testimony that you cannot reconcile, you may choose whom you will not believe.
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TR. 70.
Douglas contends that Instruction No. 18 created a mandatory evidentiary presumption in favor of the State because "the overwhelming number of witnesses were state witnesses. Such an instruction also undermined the defendant's presumption of innocence and unreasonably shifts the burden from the State to the defendant. The jury could have interpreted the instruction to mean that as long as the State's witnesses sound 'reasonable' and unless the defense presents some evidence to prove otherwise, the jury is authorized to convict." Appellant's Brief, p. 42. Douglas's trial counsel did not object to Instruction No. 18; thus, to avoid waiver, Douglas also argues that his trial and appellate counsel were ineffective for failing to preserve the error.
We find no error in the instructions given. Similar instructions based on the Indiana Pattern Jury Instruction have been approved by our supreme court, St. John v. State (1988), Ind.,
ASSISTANCE OF TRIAL AND APPELLATE COUNSEL
Douglas argues that the PCR court erred in finding that he was not denied effective assistance of trial and appellate counsel. The PCR court concluded that Douglas did not show that his counsel had been ineffective because neither trial nor appellate counsel testified at the PCR hearing. Thus, Douglas did not establish that counsels's actions were other than strategy decisions. The PCR court also concluded that each of the complained-of errors were meritless, and thus trial and appellate counsel were not ineffective.
Reversal for ineffective assistance of counsel is appropriate only in cases where a defendant shows both that counsel's performance fell below an objective standard of reasonableness and that the deficient performance so prejudiced the defendant as to deprive him of a fair trial. Bellmore v. State (1992), Ind.,
The PCR court erred in finding that Douglas failed to show his trial and appellate counsel were ineffective merely because they did not testify at the PCR hearing, but the PCR court correctly found that counsel were not ineffective because Douglas did not show that he was prejudiced by the alleged ineffectiveness. As we discussed above, Douglas did not show any prejudice from alleged failings by counsel to preserve the issues regarding specific intent instruction, voluntary intoxication instruction, juvenile record, and burden of proof and presumption of inno
Douglas also argues that trial counsel was ineffective for failing to sever his trial from that of co-defendant Morrison, or to at least "redact the information from the statements given by both the defendants eross-implicating the other." Appellant's Brief, p. 49. Douglas has not shown how he was prejudiced by the implicating information in Morrison's statement where Douglas implicated himself in his own statement. Indeed, in the opinion on Morrison's direct appeal the supreme court found no reversible error in the consolidation of the trials or in introducing the implicating statement of the co-defendant where the defendant's own statement made the same admissions. Morrison v. State (1987), Ind.,
EFFECTIVE PCR COUNSEL
Lastly, Douglas contends that he received ineffective assistance of counsel at his PCR hearing because counsel did not present testimony from Douglas's trial counsel to show trial counsel was ineffective.
The right to counsel in post-conviction proceedings is guaranteed by neither the Sixth Amendment of the United States Constitution nor art. 1 § 13 of the Constitution of Indiana. A petition for post conviction relief is not generally regarded as a criminal proceeding and does not call for a public trial within the meaning of these constitutional provisions....
We therefore apply a lesser standard responsive more to the due course of law or due process of law principles which are at the heart of the civil post-conviction remedy.... [I]f counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court, it is not necessary to judge his performance by the rigorous standards set forth in Strickland v. Washington (1984),466 U.S. 668 ,104 S.Ct. 2052 ,80 L.Ed.2d 674 .
Waters v. State (1991), Ind.,
CONCLUSION
We reverse the PCR court's finding that Douglas's petition for post-conviction relief is barred by laches, and we affirm the PCR court's denial of relief on the merits.
Concurrence Opinion
concurring.
I concur in the majority opinion on all of the issues except for those involving Douglas' juvenile record. See supra, pp. 818-819, 820-821. First, Douglas waived any error by failing to object to the admission of the evidence. Notwithstanding waiver, the post-conviction court properly admitted the evidence that Douglas had been in Boys School under the res gestae exception. Res gestae includes acts and statements that are so closely connected to the erime as to be part of it. Allen v. State (1992), Ind.App.,
Here, the evidence was not introduced for improper impeachment purposes, and was relevant to relate the planning of the commission of the crime which occurred while Douglas was at the Boys School. The probative value of this evidence outweighs the nominal prejudice arising from the fact that the jury learned that Douglas had been in
Douglas' related argument that he received ineffective assistance of counsel on this issue likewise fails. Because the admission of the evidence indicating Douglas' juvenile record was proper as res gestae, his counsel was not deficient for failing to object to the evidence. Had counsel objected to the evidence of Douglas' juvenile record, the objection would have been denied.
I also disagree with the majority's analysis of ineffectiveness of counsel on the juvenile record issue, in that it fails to consider first whether counsel's performance was deficient. We presume counsel was competent. Fugate v. State (1993), Ind.,
For the above-stated reasons, I concur in result on the issues concerning Douglas' juvenile record.
Dissenting Opinion
dissenting.
I dissent. I disagree with the majority's conclusion that the jury was properly instructed on the element of specific intent. I also disagree with the majority's conclusion that Douglas was not entitled to an instruction on the defense of intoxication.
I.
In support of its position that the jury instruction on attempted robbery was adequate, the majority cites Alexander v. State (1988), Ind.,
In Zickefoose v. State (1979),
Citing the foregoing authority, our supreme court reversed the defendant's conviction for attempted murder in Smith v. State (1984), Ind.,
Thus, we are left with instructions which would lead the jury to believe that the Defendant could be convicted of attempted murder if he knowingly engaged in conduct which constituted a substantial step toward the commission of murder.... Aninstruction which correctly sets forth the elements of attempted murder requires an explanation that the act must have been done with the specific intent to kill.
Id. The offending instruction in that case is essentially the same as the one before us.
In Abdul-Wadood v. State (1988), Ind.,
The error in the instruction creates a serious risk of wrongful conviction. This instruction purports to set out the complete burden of the prosecution. It is an instruction, which when given at a trial, creates a moment of focus and special attention. The judge takes special care in reading it loudly and distinctly. The jury perceives its special and crucial character. Armed with the information in this instruction, the jury could rationally deem itself authorized to convict because it was convinced beyond a reasonable doubt that the accused deliberately engaged in cooperative conduct, in a series of developing events, which culminated in an enterprise carrying the death risk, even though there could have been no appreciation of that risk at the time of the cooperative conduct.
Abdul-Wadood,
In like fashion in Jackson v. State (1989), Ind.,
Underscoring the significance of informing the jury on the intent element in crimes of attempt, our supreme court has held: "By definition, there can be no 'attempt' to perform an act unless there is a simultaneous 'intent' to accomplish such act. Simply stated, in order to commit a crime, one must intend to commit that crime while taking a substantial step toward the commission of the crime." Spradlin v. State (1991), Ind.,
The rationale justifying reversal in the forgoing cases is no less compelling here. The instructions are essentially the same and the result reached should be the same as well. The law is clear that it is fundamental error to fail to instruct the jury on an essential element of the erime of attempted murder, namely, an intent to kill the victim. Woodcox v. State (1992), Ind.,
IL
The majority's treatment of the trial court's instruction on the intoxication defense is even more troubling. Citing Weyls v. State (1992), Ind.App.,
Unlike Weyls, this case does not involve the trial court's refusal to give an instruction. Rather, it involves the trial court giving an instruction based on a statute that has since been ruled void and without effect. Further, in giving the erroneous instruction, the trial court itself acknowledged "(there was some evidence introduced during the trial indicating that the defendants may have been intoxicated at the time of the offense...." T.R. at 62. Obviously, there was evidence of ree-ord to support the giving of an intoxication defense instruction. Otherwise, the trial court would not have found it necessary to dispel the impact of such evidence. The majority's position that there was an inadequate evidentiary basis in this case to justify giving an instruction on the defense of intoxication not only second guesses the trial court on this point, but more importantly invades the province of the jury.
Because Terry v. State (1984), Ind.,
The record here reveals that Douglas and his companions consumed nearly all of a one-half quart bottle of whiskey, ingested Valfum and smoked marijuana before proceeding to the victim's home. The record also reveals that prior to the robbery Douglas was staggering and slurring his speech. Whether the fact that Douglas was able to walk to the victim's home, knock on the victim's door, fire two shots, hide the shotgun, and make his way back to his friend's house dispelled Douglas's claim of intoxication is a matter the jury should have been allowed to decide. However, the erroneous instruction given by the trial court removed Douglas's intoxication defense from the jury's consideration. In my view the error here was fundamental. It constituted a clear, blatant, violation of basic and elementary principles, and the resulting harm was substantial. When error in the giving of a particular instruction "misleads the jury as to the law of the case" then reversal is justified. Walker v. State (1986), Ind.,