*1 STEPHENSON, Appellant M. John
(Petitioner below), Indiana, Appellee
STATE below).
(Respondent
No. 87S00-0106-PD-285. Indiana.
Supreme Court of 26, 2007.
April *5 K. Carpenter, Public Defender of
Susan Indiana, Hinesley, H. Thomas C. Steven Schutte, Defenders, Public Deputy India- IN, Attorneys Appellant. napolis, for Carter, Attorney exculpatory Steve General of material evidence. Post-con- Indiana, Martin, B. Deputy denied, James Attor- viction relief was and this appeal General, IN, ney Indianapolis, Attorneys followed. Appellee. affirm the We denial of Specifically,
relief.
we hold:
(1) Stephenson’s freestanding claims of
BOEHM, Justice.
error based on his wearing a stun
trial,
an eight-month
jury
After
found
belt at trial were available on direct
John Matthew
guilty of bur
appeal and are therefore foreclosed
theft,
glary,
and the
peo
murders of three
in post-conviction proceedings;
trial,
ple. At
the defense contended that
appearing
readily
Because
visible
wife,
“Jay”
John
Tyler;
murders of
is,
restraints
inherently
prejudicial,
Tyler;
Brandy
Kathy
Southard were
the issue had
appeal,
been raised on
drug operation
the result of a
unrelated to
reversal
required
would have been
Stephenson.
testimony
of several de-.
proved
unless the State had
beyond
implicated
fense
persons
witnesses
Ste
a reasonable doubt that the error did
phenson contended were
in the
involved
not affect the result as to either guilt
drug ring. Stephenson also presented ali
penalty;
bi witnesses who testified to his where
(3) Stephenson’s claim of ineffective as-
at the time
alleged
abouts
the State
sistance of counsel requires
him
took place.
murders
found Ste
establish
performance
substandard
phenson guilty and
multiple
found
murders
*6
of counsel and a
probabil-
reasonable
aggravating
as an
supporting
circumstance
ity that the result would have been
court,
penalty.
the death
trial
follow
different but for counsel’s errors and
recommendation,
ing
jury’s
the
sentenced
omissions;
Stephenson
death.
We affirmed both
(4)
the convictions and death
Stephenson’s
sentence. Ste
Even if
trial counsel’s
(Ind.2001),
phenson v.
742
object
N.E.2d 463
failure to
the
or to
belt
the
denied,
1105, 122
rt.
534 U.S.
S.Ct.
lack
finding
any
of need for
form
ce
(2002).
905,
(6) witnesses; only probative of new- we examine Stephenson’s claims Because turn evidence and reasonable inferences
ly largely discovered the post-conviction wit- credibility support of various decision on the Conner, by the N.E.2d at rejected court. 711 and were nesses court, un- not do I. Belt at Trial Use of a Stun Stephenson’s confidence dermine sentence; death convictions or his Stephenson appear- contends that (7) not of his Stephenson deprived in a at his ance stun belt before process trial fair or due right to a trial his federal constitutional violated jury’s exposure because rights under the Sixth Fourteenth influences; various extraneous law. Amendments and also violated state court’s conclu- This claim as both a freestand- is asserted prove ground sion that failed ing claim of for ineffec- error by a of the evidence preponderance tive assistance of trial counsel. As an suppressed evidence that the State matter, initial this Court has ruled that pun- or guilt material of a not be stun belt is ordered use ishment is affirmed. State, 749 Indiana courts. Wrinkles v. (Ind.2001). agree N.E.2d We 1179 of Review
Standard appeal if this were an proceedings are Post-conviction from trial after Wrinkles was conducted provide civil defendants proceedings objected to decided and known raise opportunity to issues trial, the use of the belt at he would trial original or time of the available at the trial as a entitled to a new matter of state State, 711 appeal. direct Conner addition, Missouri, In law. Deck (Ind.1999). Thus, if N.E.2d U.S. 125 S.Ct. 161 L.Ed.2d known issue was and available but (2005), decided after trial and proce appeal, raised direct issue number appeal, clarified a of relevant fed- durally Timberlake v. foreclosed. principles governing eral constitutional (Ind.2001). If an N.E.2d However, use of restraints. *7 issue direct was raised decided on appeal trial and direct occurred before appeal, judicata. it is Id. If a claim of res decided, were Wrinkles and Deck ineffective of trial counsel was assistance objection there was to the no use of the claim appeal, raised direct is on appeal at trial. belt This properly post-conviction pro raised at post-conviction the from denial of relief In ceeding. Id. proceed presents the therefore threshold issue of ings, of the bears burden defendant the which, if the claims any, of proof by a of the evidence. preponderance procedurally now have been de- asserts (Ind. State, 456, Wallace v. 553 N.E.2d 458 faulted and how these issues relate to the 1990). of claim assistance of counsel. ineffective the post-conviction We review A. Principles Some Relevant Settled findings “clearly court’s factual under a think it useful set out erroneous” but do not defer to We standard of substantive legal principles court’s conclu some settled law 739, questions. sions. these addressing 770 before Stevens N.E.2d (Ind.2002). Supreme 746 the United reweigh will not Court of States has We use of stun belt as a judge credibility of the not ruled on the
1029
Constitution,
Deck,
but
explained
violation of the Federal
As
in
three rea
prohibition
sons underlie the
given guidance
has
a number
Court
unneces
sary
First,
shackling.
shackling
visible
points. Requiring
of relevant
defendant
“undermines the presumption of innocence
jail garb
long
in
has
been
appear
held
and the related fairness of the fact-finding
deny
process.
Flynn,
due
Holbrook v.
475
630,
process.” Id. at
1030 structural error use of the belt constituted argues that the State
Stephenson
a
trial. He
requires
se
new
per
use
of
belt
conceded
an impar-
court
of the belt with
post-conviction
equates
use
properly before
wrongful
right
issue. He bases this
denial of
freestanding
judge
tial
aas
Missouri,
findings
proposed
Deck
State’s
a
trial. He cites
v.
contention
re
633,
2007,
in which the State
622,
conclusions
125
161
S.Ct.
544 U.S.
prejudice
(2005)
to find no
quested
trial court
for the
proposition
953
L.Ed.2d
The
object
the belt.
inevitably”
from failure
unnecessary restraints “almost
preju
lack of
as its reason for
State cited
jury’s perception of the defen-
affect the
that the issue was before
the fact
dice
of
place a “thumb
death’s side
dant and
Assuming that a
court.
justice.1
of
These contentions
the scale”
finding can under some circum
proposed
appeal
trial
on direct
available at
were
contesting
preclude
party
a
from
stances
They are there-
preserved.
and were not
to conclu
finding, a concession as
a
own
its
only
sup-
fore available
extent
on this Court.
binding
of law is not
sion
of
port a claim of ineffective assistance
66, 67,
238 Ind.
116
Myers v.
See
present
for
them.
failure
(1954);
State, 232
839,
839
Green
N.E.2d
(1953).
211,
596, 597, 115 N.E.2d
212
Ind.
D.
Assistance
Trial
of
Ineffective
the issue of the belt’s use
Whether
Counsel
ques
issue
a
freestanding
as
is
available
fore
The issue
therefore
tion of law.
is
object
Stephenson raises the failure
if,
here,
trial
as
it was available at
closed
establishing ineffective assis-
to the belt as
objection
and no
was raised.
tance of trial counsel.
raised
no
of ineffective
in his
claim
assistance
Structural Error
C.
is
appeal.
agree
direct
We
claim
presented
post-con-
in
properly
therefore
variant of
claim of
In a
fundamental
error,
proceedings as one of ineffective
that the
viction
Stephenson also contends
require
"pro
the observance of
without address
and those that
invokes Deck
'implicit
concept
are
ing
point
postdated
cedures that
...
that Deck
his trial and
”
liberty,’
of
appeal.
points
that Ste
ordered
and "without which
direct
The State
out
trial, appeal,
likelihood of an accurate conviction is seri
phenson’s
diminished,”
ously
may
applied
de
be
retroac
proceeding all
Deck was
occurred before
313,
tively.
489 U.S.
1031 trial policy assistance of counsel for failure to trial court’s requiring restraint. Timberlake, object at trial. There is no See 758 evidence that Stephenson was Strickland, obstreperous N.E.2d at short, 597. Under v. or disruptive. In Washington, a claim nothing of ineffective assis record shows support an indi- of requires tance the defendant to vidualized determination that preponderance required any trial, show of the evidence form of restraint at (1) performance is no explanation counsel’s below there in the trial record objective of for of standard reasonableness use the stun or any belt other re- professional on “prevailing” based norms straint. The belt mentioned by prejudiced by parties the defendant was or the court in performance, appeal. counsel’s substandard direct i.e. that, probability” is a
there
“reasonable
omissions,
but for
counsel’s errors
a.
To Object
Failure
to the Belt as a
outcome of the trial would
been
have
dif
Tactical Choice Trial Counsel
of
668, 687, 694,
ferent. 466
104
U.S.
S.Ct.
The law is clear that counsel’s
(1984);
fail to to the use of the belt? There is strong presumption that 2) Was object it substandard to fail to adequate counsel rendered assistance an the absence of hearing individualized significant and made all decisions the need for restraint? professional exercise of judg- reasonable ment. Counsel is afforded considerable 3) Is a showing object that the failure to discretion in choosing strategy and tac- produced “inherently prejudicial” condi- tics, and these decisions are entitled to tion of trial sufficient itself to establish mistakes, deferential review. Isolated prejudice prong of Strickland? poor strategy, inexperience, and instanc- 4) If an inherently prejudicial condition judgment es of bad do not necessarily per shown but is not ground se representation render ineffective. reversal, does the defendant bear the bur- Stevens, (citing den 770 N.E.2d showing prejudice by Strick- the condition land, 689-690, 2052; or must U.S. preju- State establish lack S.Ct. Timberlake, 603; dice? 753 N.E.2d Perez v. (Ind.2001)). 5) What standard proof required party prejudice, burden as to The State contends that trial counsel standard met? Stephen- made tactical decision to allow stun son to wear a belt. The record does Counsel Performance of support post-con- this contention. At viction, The trial Anthony record makes no refer Long, one of counsel, ence the belt or need for re trial explicitly stated that he made straint. There is no clear statement of the a conscious decision to allow Stephenson to
1032
of
in
“I
was made without awareness
jury
the
a stun belt:
decision
appear before
law favorable
the defen
applicable
[the
choices were either
the
our
understood
698, 708
Snyder,
and that was certain-
Dixon v.
266 F.3d
or shackles
dant.
belt]
stun
(“If
(7th Cir.2001)
counsel was unaware of
acceptable alternative.” Similar-
ly not an
statute, then his
to cross-
Dennis Vowels testified:
the
decision not
ly, trial counsel
cannot
accorded the
examine Carlisle
be
any discussions with
Q:
you
Do
recall
of
presumption
same
reasonableness as
of
Anthony Long about the benefits
a
n
strategic
accorded most
decisions because
opposed
being
.shackled?
stun
as
belt
strategy
it
not
but rather on
was
based on
them,
probably
but we
A:
I don’t recall
”
‘startling ignorance
(quot
a
of the law.’
it.
I
we were not
about
know
talked
Morrison,
ing Kimmelman v.
477 U.S.
in
of a
let him be shackled
front
going to
385,
2574,
106
1033
object
(quoting
Flieger,
v.
Wash.App.
on failure to
to restraints
State
91
based
872,
(1998)).
Fail-
236,
the restraints to be visible.
required
955 P.2d
874
Even if the
object to restraints is not
belt,
ure
substand-
of
jury
to
is unaware
the
there remain
jury
the
is un-
ard
where
performance
the
concerns
stun belt “could dis-
But
Seventh
of the restraints.2
the
aware
rupt a
set of a
different
defendant’s consti-
object
has held that failure to
to
Circuit
First,
tutionally
rights.”
guaranteed
Id.
“readily
is
that are
sub-
restraints
visible”
seemingly poses
“[a] stun belt
a far more
Roche
performance
standard
of counsel.
of interfering
substantial risk
a defen-
with
(7th Cir.2002)
Davis,
473,
F.3d
v.
291
483
right
dant’s Sixth Amendment
to confer
States,
v.
211
(quoting Fountain
United
than
leg
with counsel
do
Id.
shackles.”
(7th Cir.2000)).
429, 435
The Sev-
F.3d
Second,
poses a greater
the device
threat
our
enth
found
Circuit
“unreasonable”3
to
Sixth
and
the defendant’s
Amendment
that counsel was not ineffective
conclusion
rights
process
present
par-
due
to be
object
to
fail-
shackling
failure
ticipate in
defense
his
is rea-
“[i]t
because
prevent
from
steps
jury
ure
take
the
sonable to assume that much of a defen-
the shackles. Id.
viewing
wearing
dant’s focus
attention when
shackling,
Although
anxiety
Roche addressed
we
occupied by
one of
is
these devices
reasoning is
equally applicable
think its
possible
the
triggering
over
of the belt.”
belt,
of a
a stun belt.
use
stun
Id. at
These are in
the
1305-06.
substance
by
jury,
all of
perceived
produces
the
the
emphasized
points
by
majority in
same
the
shackling
It sends a
results
does.
banning
Wrinkles
the belt under
may
danger-
that the defendant
signal
be
law.
Indiana state
knew in deposition of One testified the belt. for it recognized trial it what was. ing post-conviction proceeding: offered in According juror’s affidavit: to one Q: you Stephen- aware that John Were trial, I During became aware you a stun Do wearing son was belt? wearing a stun Stephenson was John that, by I first all? know what mean appeared I had what belt. could see he that, A: I was aware of I’m a box attached to rectangle shaped to be time, know, you point sure at what what back, I lower underneath his shirt. I was aware that. had seen a show sometime television Q: you But know what I mean— being this previously to selected A: Yes. a stun was and described what belt its I have been hit purpose Q: by what was. a stun belt? — by 220 what effect that volts know Yes, A: I do. a person. amount I power has Q: Okay, you so go ahead hadn’t believed the stun was to control belt your finished answer. John behavior. Well, really A: if it exactly I’m not sure apparently Some learned of the restraint that, was after trial that I heard juror jurors.
from other A stated second it thinking about that or—I’m after- in her affidavit: wards, really but I’m not sure. Stephenson I was aware that John Q: it you you— Did notice when wearing prevent him device that would A: No. running from out of courtroom. Q: by, past walked from —walked jurors During the male the trial one of rear? mentioned to me that Mr. No, A: I did notice it. never I this was aware wearing device. that con- wearing something that he was juror Even if at least one did observe trolled his behavior. belt, or recall the record we think affirmed, has Similarly, prepon- established juror “During third trial, that the belt was I derance of that Mr. recall jury. type “readily some him. I visible” to restraining device on Summary d. different result if counsel had met profes Performance
Prong Strickland. sional norms. We express sometimes standard for prejudice from the failure to The record at did not object requiring as probabili reasonable fully explore reasoning more counsel’s ty objection that the would have been sus *13 accepting question. the belt (cid:127)without For See, Wrinkles, e.g., tained. 749 N.E.2d at explained the below in discussing reasons Timberlake, (citing 1192 690 N.E.2d at prong the prejudice ineffective assis- 259). The standard is more precisely stat claim, may it tance have been that counsel prejudicial ed as to objec failure raise an recognized objection and, futility tion that the trial court would have been Wrinkles, confronting as in avoided required stated, to sustain. Otherwise judge trial on an issue deemed ulti- trial court objection, overruled the it mately record, unsuccessful. On this how- committed error, would have and the error ever, object failure to to the cannot belt be See, would prejudicial have had a effect. justified Stephen- a tactical as decision e.g., Spinks McBride, v. F.Supp. 858 explanation case son’s because offered (N.D.Ind.1994) (“In 877 order to establish by counsel for their decision boiled down ineffective assistance of for failure to failure applicable a to know the law. object, to it be must shown that trial Equally importantly, counsel failed to in- court would have been required to sustain upon finding sist a as the need for objection it been made.” (citing Prevailing restraint. norms at the time of State, Hill 442 (Ind.1982))); N.E.2d 1049 required trial counsel to ob- State, (Ind. Kimble v. 451 N.E.2d 306 ject to visible restraints where there no 1983) (“Before trial counsel’s failure to en violence, suggesting escape, objection may ter an regarded be inef as disruptive agree behavior. We with Roche fective representation, petitioner must that object failure to to the without belt a show that had proper objection a been justification showing pre- fails to meet made, trial court would have had no vailing justification norms. No for the it.”). choice but sustain In most cases omission is established in this record. We is no practical there difference between therefore conclude that coun- these two formulations. object sel’s failure to to the belt meets the prong first of Strickland.
b. Wrinkles v. State 2. Burden and Standard of Proof of Wrinkles, Stephenson, like asserted that Prejudice Failure To Proof from trial counsel were for ineffective not ob Object “Inherently Prejudicial” jecting to the ordering court’s him to wear Practices stun belt trial. Wrinkles contended We turn now the issues of burden of that there was no require reason to re proof proof and standard of prejudice Wrinkles, straint. N.E.2d object from failure to the belt. recognized We that a has the defendant right appear before a unrestrained
a. The Strickland Formulation unless restraint for necessary a trial Prejudice Prong without incident. (citing Id. at 1193 Bi (Ind. Strickland established that prejudice vins v. 1994)). from performance substandard of counsel acknowledged We also that requires showing by petitioner right springs from principle the “basic there was a probability” “reasonable of a jurisprudence person American that a ac- Stephen- agree with State innocent We presumed crime is of a
eused many beyond presents a reasonable similarities guilty son’s case proven until identical, presump- in order for the how- are doubt” and Wrinkles. two effective, ap- must defendant tion to be inflexi- ever, this record shows no because appearance to avoid the pear unrestrained coun- court. Trial “policy” ble of the trial “foregone conclusion.” Id. guilt Long experience, testified that sel requir- the reasons for We reiterated to the judge typically trial deferred restrained before a ing to be a defendant sheriff, in security decisions. sheriffs the trial placed on record. jury, must turn, defen- transporting cited concerns in State, 690 N.E.2d (citing Roche v. Id. jail courtroom as the from dants (Ind.1997); Coates con- requiring restraint. These basis *14 (Ind.Ct.App.1985), over- N.E.2d directly to not seem to relate cerns did grounds by Hahn on other ruled to opposed at trial as its use of the belt Deck (Ind.Ct.App.1989)). 533 N.E.2d transit, not ex- in that issue was use but Fourteenth made clear that the has now plored post-conviction hearing.4 at require- same imposes the Amendment security in of at the charge The officers majority in acknowl- Wrinkles ment. knowledge that had no trial testified all policy requiring defen- edged that that any of incidents would demonstrate likely “not restraints would dants wear a stun belt. need for to wear scrutiny if the issue appellate withstand Hargrave; Bruce Charlie Sheriff at 1195. presented.” were McCracken, sergeant charge in se- that held in Wrinkles We nonetheless trial; Ash, curity Jerry at object to the stun belt’s counsel’s failure deputy security; police officer Rob- constitute ineffective assistance use did Baker, Irvin; jail com- ert and Jonetta ruling on a in that case. We based County De- mander for Warrick Police addressing prejudice, lack of without post-conviction all partment, testified performance was sub- whether counsel’s posed knowledge Stephenson to their Id. at 1196. reason standard. no security threat and had exhibited po holding that the trial court’s for that was specific behavior that would demonstrate a any use restraint and “policy” dictated trial. restraining for a device need pre- objection to the would not have belt also extensive There was indi- require The failure to vailed. Id. from the sheriffs office and oth- testimony
vidualized determination was
asserted
conducted himself as
ers
assistance in
ground
as a
of ineffective
,.
“gentleman” throughout
the arrest
Wrinkles.
Q:
you just so
sure—I know
hearing,
When
I’m
Sheriff Har-
theAt
—
you say "we”
was
deci-
when
and "it
our
grove testified as follows:
sion,”
you
you
else?
mean
who
Q:
that John
the decision made
How was
deputies
A: The chief
going to wear
belt?
was
Q:
deputies. You didn't consult
The chief
get
in
just
he had to
him
A: We
knew that
judge?
with the
building
jury
without the
and out of the
I, don’t
don’t
A: Well
I
know whether —I
seeing
we
or handcuffs and
him in shackles
judge,
specifically speaking to the
recall
fairly,
opinion
in our
to—it was
elected
may
I know that we’d over
and I
have. But
time, may
the new
it
not have been
years,
had a lot
we’d
of discussions
something
technology,
Campbell
getting
it
Judge
regarding
but was
the—
attention,
the,
jail
we
just
decided
out of the
without
come
our
in and
inmates
seeing
jury
them shackled or
going
belt for that
we were
to utilize the
without
handcuffed.
reason.
requires
establish,
himself in in re-
ror
beyond
trial. He had turned
State to
doubt,
enforcement
sponse
reports
law
a reasonable
that the error has no
looking for him in connection with the
effect
the ultimate resolution
escape
and made
effort
therefore,
murders
no
Deck,
trial.
establishes
during
either before or
trial. From the
stronger presumption of reversible error
testimony,
appears
it
sheriffs
that no one
object
from failure to
shackling
than the
gave
careful consideration
need
Seventh Circuit
applied
Roche or we
restraint
in the
while
applied
think,
however,
Wrinkles. We
Rather,
at his
courtroom
trial.
the need that Deck does not
petitioner
relieve the
assumed,
only
and the
concern
voiced post-conviction proceedings
bur-
from the
the sheriff was whether the
would den of
both
establishing
the substandard
Although
restraint.
see the
record
performance
prejudice prongs
of an
judge
shows that
trial
followed the
ineffective
claim.
assistance
sheriff,
recommendation of the
it does not
decided,
Before Deck was
most claims of
policy
indicate that either had an inflexible
ineffective
assistance
counsel for failure
restraint, or,
so,
requiring
to what
object
jail garb
to shackles or
were
it applied.
cases
*15
rejected
on
prejudice,
based
lack of
even
c. The
Deck
though
explicitly
of
the court
implicitly
Effect
performance.
assumed substandard
We
already explained,
prej-
As
Roche found
only
published opinion
find
restraints,
one
that has
object
udice from failure to
to
rejected
addressed this
after Deck.5
it. Both cases
issue
The
and Wrinkles
used
Circuit, Marquard
a
Eleventh
in
the Strickland standard of
“reasonable
Secre
tary
Corrections,
a
probability”
Department
of
different result. Deck
429
for
of
(11th
prejudice
shackling
Cir.2005),
teaches that
from
now
F.3d 1278
addressed a
by
“inherently
governed
prejudicial”
is
the
claim of ineffective assis
object
shackling
standard
constitutional error under
tance for failure
at
18, 24,
Chapman California,
87
penalty phase
pen
386 U.S.
the
a Florida death
of
(1967).
824,
alty
standard we French, Unlike failure finding that under conviction court’s prove probability reasonable aof differ- facts that case the outcome would not ent result does not in- essentially rest have different there had been an been disputable evidence that establishes objection. Id. merits his conviction and sentence.6 got Stephenson, 6. There was less than a conclusive amount and I’ve to catch him.” connecting Stephenson physical evidence at 470. N.E.2d Funk testified that while he table, See sitting the crime. returned (Ind.2001). N.E.2d 463 Much of the evidence "walking pretty to the kitchen fast” and called Funk, against testimony you’re coming, came from "if Ac- come on.” Funk, Funk, of Dale who claimed to with Ste- cording accompanied Stephen- Funk killings, phenson at the time of the and Brian Stephenson pur- son in car as Mossberger, produced weap- who murder Tyler through County sued the truck Warrick questioned police on when the him about the stopped until it rural roads intersection. *17 testimony of murders. The these two wit- Stephenson pulled up Id. the behind truck largely nesses was consistent. It is clear that Tyler opened and his door front and leaned Mossberger’s testimony if Funk’s and out, credi- looking Stephenson. back Id. At that ble, guilty The the verdict is sustained. fol- point grabbed Stephenson his SKS assault testimony lowing chronologi- is their trial in car, rifle, began firing Tyler left the and at the cal order of the events. Stephenson the truck. Id. then returned to car, corner, car, approximately days stopped Funk testified that two drove around killings Stephenson proceeded before the he and visited and in on foot the direction of occupied by Tyler Stephenson the mobile home Southard few and truck. returned a min- Funk, Funk, Troy Napier. According her fiancé to utes later and told a word "You breathe Stephenson unoccupied you.” entered the home this and I'll kill Id. at 470-71. Mossberger Stephenson and returned with ammunition. The three testified that after house, Mossberger's victims were killed March 1996. Funk and Funk returned to Stephenson holding Stephenson testified that he and arrived was a knife with "red Mossberger’s evening Mossberger house the of March 28. and smears” on blade told Stephenson "Jay, Kathy, Brandy went in to another room to talk and are no more.” Mossberger According Mossberger, Stephenson with while Id. Funk remained at the According Mossberger, kitchen table. he washed knife in and in- his the kitchen sink Stephenson talking Mossberger Tylers something were when the structed to "do with SKS; it; pulled briefly Mossberger’s get gone.” and Southard into rid of make it Id. driveway pick-up Mossberger present in a truck. tes- Funk also testified that he was when said, Stephenson goes Jay Stephenson weapon tified that "there handed the to Mossber- included in other find- previously no As Rather, preju- has shown fact, County ings of it was the Warrick a reason- he has not shown dice because Department who obtained and Sheriffs made, objection, if probability able restraint on Ste- placed the electronic trial successful in the have been would clothing. his phenson and beneath the basis court, produced have or would not to be Judge Campbell did order this appeal. for a successful done, argue trial did not or restraint, object compared to this as wearing contends that may which have other of restraint forms right his “interfered with the stun belt At the time required otherwise. been participate communicate with counsel and required was wear the the Defendant arguments The own defense.” restraint, he on trial electronic was and the court’s parties murder, facing penal- a death triple the stun belt were findings respect with by of Indiana. The ty request the State opinion 'Wrin on this Court’s focused not use of such yet law had ruled the respect to the belt findings kles. The a criminal Defendant to be devices on entirety were: their improper or violative of a Defendant’s matter, the trial of this time of At the rights. In of all the view circumstances for the elec- impermissible it was surrounding this case and this Defen- by belt to be worn Ste- tronic restraint dant, extremely na- including violent the trial. The belt was phenson during committed, the ture of the murders use Stephenson, he while never activated belt was war- electronic restraint assisting coun- prevented from was ranted, necessary reasonable under belt, wearing the and the same sel while these circumstances. a suitable and discreet alternative to post-conviction court concluded Stephen- of restraint for other methods “counsel for Defendant was not ineffective multiple he on trial on while son object by failure to use because of counts, mur- three counts of including restraint de- the sheriff the electronic der, in of the belt this case. use during trial.” vice on by Stephenson and his accepted findings We take these and conclusions argument objection counsel without finding as a that the trial court would have proceed- the trial during on the record any objection overruled belt that ings. counsel had raised. These three murders were contended both defendant and assistance claims ineffective Insofar as to have related to belt, prosecution been on the were based *18 drug activity. organized ap- The murders court found: (1) Id. The forensic evidence was: the fatal get ger of it. Id. Mossber- and told him to rid were fired from the SKS assault bullets those ger and ammuni- he the rifle testified buried Stephenson owned but in Moss- rifle day but retrieved in the woods the next tion days after the berger's possession two mur- days placed them in his them two later and ders; (2) casings spent at the scene shell garage. arrived police officers Id. When discovered in South- question matched ammunition Mossberger’s him later at house to home; Napier's mobile day, ard’s and version of the events he related his Stephenson’s, not prints, but showed the Funk's shoe day of the of the murders and mobile home. No other were found Id. officers rifle but not the ammunition. 29, Stephenson to physical evidence connected Friday, police morning March On used in the knife murders murders. The Tylers and Southard found the of the bodies Id. recovered. was never gunshot wounds and stab wounds. dead from premeditated to have been and had stance no peared appellate raises issue of ineffec- tiveness. of an There characteristics assassination. testimony that the defendant had performance appellate kill a critical witness. threatened to Un- counsel is not substandard for failure to circumstances, post-con- der all these assert an appeal issue on if the issue is not clearly finding viction court’s is not errone- revealed the record and there is no Indeed, given ous. the state the law evidence suggesting appellate counsel
1996, plain judge we think it that the trial were otherwise made aware of it. We would have followed the sheriffs recom- have Supreme observed that “the Court of the United suggested mendation and ordered the belt be States has never look, [appellate] counsel must outside guilt deployed phase even if defen- possible the record for claims of for error objected required dant’s counsel performance to be constitutionally ef hearing findings as to the need for its State, fective.” Woods v. N.E.2d shackling use. Because the time at the (Ind.1998). . agree We with those controversial, phase was less penalty courts that have to impose refused such same result would have obtained at the burden appellate counsel. Id. at 1221- phase. penalty Given the fact-sensitive Clarke, 22 (citing v. Kitt 931 F.2d order, nature of that under the circum- (8th Cir.1991)). Thus, 1249-50 we con stances the issue presented would have cluded Woods that “[b]eeause there is persuasive ground for appeal. stan- requirement no constitutional appellate for on appeal dard of review would have been counsel to search outside the record for abuse of discretion. Bivins 642 error, an ineffective assistance appellate (Ind.1994); N.E.2d Evans counsel claim that is in substance a trial (Ind.1991). requiring counsel claim extrinsic evidence Accordingly, Stephenson has not estab- may be dead on arrival.” Id. at 1222. A probability lished a reasonable aof differ- corollary of this conclusion is that it is performance ent result from counsel’s counsel upon trial to communi incumbent respect guilt phase. the belt at the cate appellate any out matters appropriate
side record that are for appeal. direct If supplementation of the C. Appellate To Counsel’s Failure is required, procedure record Indiana al Raise an over Issue the Belt it,7 lows performance but we think the Although asserts counsel, counsel, appellate of trial claims of ineffective assistance of appellate only nothing issue when the record n counsel, the failure to raise issue of suggests the issue. appeal among the belt direct is not sum, In to the extent pres- them. appellate contends that ents a claim for relief counsel were of the belt unaware and cor trial, based on the use of the stun belt at rectly points out that there no mention that claim is one of ineffective assistance in the belt trial record. He claims object, trial counsel for failure to failure to appellate that had counsel known of the preserve the issue for appeal, and failure *19 belt’s use the issue have would been raised to communicate to appel- the circumstance appeal. on think We that this circum- late counsel. All of these omissions lead to (Ind. (Ind.1977). 7. See Hatton v. N.E.2d 1149 1993); 152, Davis v. 267 Ind. consistent initial.testimony was on the Carter’s they had no effect same result: on appearance the trial. In her first result of with Krantz’s.
ultimate stand, had that she not Carter testified II. Ineffective Assistance Other day the kill- Stephenson seen from of Counsel Claims through of March. After her ings the end of claims of Stephenson raises a number testimony, defense Carter called initial that are unrelated to assistance ineffective in and him that had Long told she the stun belt. in Ow- Stephenson fact on March 31 seen Impeach To Witness A. Failure ensboro, Ohio Kentucky, which is on the County, Spencer from River across trial, contended Stephenson At court, and ex-wife, Long notified witnesses, his Dawn Indiana. that three Krantz; immediately Roxanne Les in- neighbor, Krantz’s Heilman Trooper Marvin friend, ter; Julie Girt- and In a state- terviewed Carter. recorded man, have that he could not established ment, said that she had not seen Carter County in committed the murders Warrick 31, March which was con- Stephenson on pm March 28 as 9:50 and 10:00 between prior testimony. with her When sistent inef alleged by State.8 The claim of State, however, by the Carter tes- recalled im on failure to fective assistance turns attorney Long to that she had called tified Carter, con a witness who Crystal peach story “thought the her because she change point on a unrelated to tradicted Krantz come out.” then testi- truth should Carter Stephenson argues Stephenson’s alibi. had fied that she and Krantz seen Ste- credibility Krantz’s on the this undermined night March phenson Owensboro testified that Stephenson alibi. Krantz Stephenson 31. testified that Carter Sunday, following took her to work the flagged Carter driving Girtman’s car and 1996, and that she did see March driving and Krantz down as were until after he surrendered to the again him pulled from Wal-Mart.9 Carter home April 1996. Whether authorities over, Stephenson Krantz exited and Stephenson each other Krantz and saw spoke their while re- vehicles Carter April on March 31 and between noon in her car. Carter could not hear mained insignificant itself. How appears to be pair what was said between the but testi- ever, Carter, a friend and co-worker they spoke they got fied that after both Krantz, Krantz having testified to seen into car her to drive to a Carter’s and told together night on the Stephenson En route gas station Owensboro. that Stephenson March 31. contends talked, Stephenson Krantz and but Carter and, impeach Carter as attorneys failed remembered, “[j]ust [Stephenson] result, ineffective assistance. rendered upset something gun.” about At about rejected court review station, claim, gas Stephenson Krantz and do and so we. Krantz, Spencer County, Rockport, in and the site been 8. testified that had night Specifical- appear of the murders. were does her where victims found ly, had been Lester’s she testified she in the record. Stephenson arrived Rockport house in when pm approximately or 10:50 10:45 Stephen- that she and Dawn Carter testified Thursday evening. Lester also testified Sunday, the same shift on son had worked Girt- about 10:30.” "came over upon getting off work March stopped by man testified that the two of them pm, Carter drove around 10 twenty-five Rockport her house in for about Owensboro. to Wal-Mart in shortly pm night. The minutes after 10 driving distance in time between miles or *20 car, argues Stephenson and Krantz returned to the murders. that he left the According to ten minutes later. car about denied the effective assistance of counsel Carter, say noth- Krantz told her “not to counsel to attack mitigate when failed ing.” the effect of this statement due to coun- sel’s mistaken belief that the statement that Krantz’s cred-
Stephenson contends would not be admitted into evidence. The his and was ibility was “crucial to defense” particularly sig- statement in itself not testimony. by Stephen- undercut Carter’s theory that trial counsel was ineffec- nificant. The defense’s of the son contends case impeach failure with the tive for to Carter on night killings was that of the Ste- given in her prior inconsistent statement phenson to Mossberger’s went first house recorded interview with Officer Heilman. County, in Warrick next saw the victims It is true Carter’s final version contra- store, a Circle S convenience and then point dicted Krantz on a unrelated to Ste- proceeded Rockport to his home in adja- in impeach alibi. But failure to phenson’s Spencer County. police cent In a inter- taped with the Carter statement she made 30, 1996, on Stephenson view March had Trooper Heilman did not render counsel given sequence. the officers different First, already ineffective. He said that he saw the victims heard earlier denial contact Carter’s store, Circle S convenience then drove killings. Stephenson after the house, Mossberger’s Rockport. nothing same statement to Heilman added theory obviously The defense conflicted inconsistency already in the record. with Stephenson’s police statement to as to Second, trial, in eight-month an some over- sequence Stephen- of these events. As inevitable, in sights episode are and this it, damaging son sees the conflict was isolation does not render counsel’s overall credibility. Stephenson his contends that performance substandard. Smith at the time of the statement he intoxi- 216, 218, 272 Ind. (1979). Third, cated and for that reason in mistaken about appear- Carter’s second stand, ance on the she elaborated on her the chain of events. He contends that recollection conversation between testimony expert could have bolstered this Stephenson Krantz and the car Ow- claim. At Stephenson pro- Stephenson heard ensboro. She- said she Smith, duced Dr. Robert an expert gun talking refer to the Krantz while dependency, chemical who testified that in say, buddy, “I it to a all loaned opinion Stephenson’s intoxication on supported hell’s broke loose.” This Ste- ability March impaired Stephenson’s phenson’s basic that others had defense sequence night recall the events reason, For that been killers. embrac- of the murders. now contends ing, attacking, rather than ac- Carter’s mistakenly believed that the intox- judgment count on the reasonable admitting preclude ication would his state- reasons, part of the For all these defense. ment to police as evidence at trial. He failure to to Heil- introduce the statement argues that if counsel had understood that man prejudi- was neither substandard nor admissible, they the statement was should cial. prepared mitigate have the harm of the reliability by challenging its statement Knowledge B. Lack Regard- Law through expert such as Dr. the use of ing Stephenson’s Po- Statement Smith. lice At gave voluntary days police pointed legal statement to the two after the to two errors in his counsel’s *21 admissibility transcript of the to dent for police the statement was conclusion that though tape was lost. even Long that he testified inadmissible. the statements challenged “should have” trial Stephenson that his agree We unlikely This seems based on intoxication. excluding the statement faith counsel’s Generally, intoxication to have succeeded. agree that misplaced. But we do not impairment do not render a or mental any significant had effect on the this error by involun- made a defendant wheth- statement trial. The evidence was admissible correctly its tary er or not counsel assessed per se. Crain v. it only is whether (Ind.2000). admissibility. issue go to 1223, 1232 These factors effectively contested could have been statement, to not its weight of the testimony. The claim that can expert beer shows Ste- admissibility. Id. The evidence memory impaired, to be somewhat cause beer, but nowhere phenson drinking insig- as to details that seem particularly to stage required near the of intoxication nificant, jurors is that can assess. We one exclude the statements.10 probability think there is no reasonable a second offered Trial counsel Vowels produce expert to an on this that failure the statement ground his belief subject any on the material effect post- at He testified was inadmissible. trial. thought review that
conviction
Investigations
C. Lack
Pretrial
had been
tape
statement
of Evi-
“under
Rules
lost and that
that his trial
Stephenson contends
series,
dence, 8,
they couldn’t authenti-
any
attorneys neglected
present
to
miti
point,
to that
transcript.
up
cate the
So
phase
at
and
gating
penalty
they
winning
we had a shot of
because
perform
this was both substandard
for Mr.
couldn’t account
Specifically, Ste
prejudicial.
ance and
all
had was Mr.
whereabouts and
argues that
trial counsel inade
phenson
say
Funk’s
so that
Mossberger and Mr.
investigated Stephenson’s prior
quately
John
was the shooter.” Un-
key
and failed
interview
wit
offenses
Boyd
der
N.E.2d
would have testified to either
nesses who
(Ind.1982), however,
interrogating
past good
offi-
or
Stephenson’s character
deeds, including
testimony
transcript
saving
person
accu-
one
from
cer’s
drowning.
responds
that trial
rately
is suffi-
State
reflected
conversation
more,
review,
Investigator
Trooper
Gary L.
Gil-
10. Detective
Gilbert
Hildebrand,
Indiana
training
Michael E.
both
bert
testified that he had received
Police,
They
State
the statement.
testi-
took
trooper concerning
years
as a
over
presence
individual,
fied
trial outside the
recognition
of an intoxicated
Stephens
review
opinion Stephenson
that in his
"seemed
be
drinking
gave
beer as he
his statement
it,
control” and that as he understood
full
30, 1996. Both offi-
the officers on March
cers,
gave
voluntary
truly
statement
however,
Stephenson did
testified that
that,
part.
on his
Gilbert also testified
al-
Trooper
testi-
appear
Gilbert
intoxicated.
suspect
give
though it
unusual for a
aware of
fied that
"seemed
be
drinking,
partic-
"in this
interview while he
place.
to understand
time and
He seemed
[Stephenson]
it'd
case
indicated
ular
any
questions.
I didn’t detect
kind
our
And
he
relaxed and I felt like
make him feel more
anything
speech
slurred
nature —
us if
might
open and honest with
be more
Likewise,
impairment.”
Officer
kind of
try
going
and make him defen-
we’re
appeared
that "he
Hildebrand testified
coherent,
can and cannot do
him what he
sive
tell
questions, and an-
understood our
in his own home.”
way.”
swered
Further-
those in
relevant
*22
pre-trial
investigation
Beard,
counsel’s
was suffi-
Stephenson cites Rompilla v.
cient;
the decisions
what evidence to
U.S.
125 S.Ct.
sonable right present to raise his a defense readily own Commonwealth’s ing the involves the trial court’s denial of Ste- prior file on the conviction available in- produce phenson’s request *23 phenson, one of the notes indicated that ing would Commonwealth knew that law enforcement officers downplay anticipate details at Napier’s “multitude of vehicles” aggravating evidence the Common- Napi- house was connected to Southard’s emphasize. wealth would drug-dealing. er’s The defense contends 385-86, Id. S.Ct. killings the three were related to Napier’s drug operation. Stephenson case, In the omitted inves- that the officers’ notes were ex- submits miti- testimony all related to tigation and Stephenson culpatory inculpatory proof aggravating an cir- gation, not to of others. court necessary for eligibility for the cumstance materiality found that “the of this infor- result, Stephen- As a in penalty. death marginal appears speculative mation opening concern for the door son’s case the con- agree. Stephenson best.” We offsetting proper, evidence is a indeed drug that the relat- tended deaths were necessary, This presents consideration. Knowledge suspect- ed. that the officers entirely different situation from Rom- an Napier dealing ed not exculpate does pilla. Defeating eligibility aggravator suspi- These notes reflect Stephenson. Establishing the death penalty. avoids cions, And not evidence. even evidence character evidence does mitigating some Napier sug- was a dealer would door, open close a and it can one. gest was innocent of judgment That is one in which counsel’s these murders. choice entitled deference. The trial court re- denied quest to question in front Herschel Siefert D. Appellate Counsel Ineffective jury. Stephenson argues ap- of the A claim of ineffective assistance of pellate counsel was ineffective for failure analyzed appellate counsel is under appeal. to raise this issue Near the coun same standard of review as for trial trial, trial counsel end learned of a Lowery sel. jail witness who claimed to have been in (Ind.1994). Stephenson contends Jimmy Knight with Seifert and and to provided that his counsel ineffec appellate conversing have overheard them about the by failing tive assistance three murders, raise specifically why Siefert ordered properly issues. preserved the killings. Other witnesses claimed to also that this Court rendered his contends have overheard from similar statements by limiting Knight. his appellate counsel ineffective Siefert and Seifert had been ar- 28,000 by Ap charges as provided drug brief to words rested on federal and was Vanderburgh County. in pellate being 8.2. detained Rule fact, points the defense trial 11. The court out that that had known this portions investigated counsel would have the vehicles trial court ordered "certain investiga- the notes disclosed to the defense” and that located the residence and such Stephenson alleges that one not disclosed to tion could have led the existence of other suspects Troy Napier or other information that was defense indicated that excul- trading patory Stephenson. dope contends as for cars. Siefert was called the defense outside rejected Indiana Constitution. We presence jury. the de- When contention Ben-Yisrayl v. asked Seifert if he fense ordered the three N.E.2d and adhere to that killings, Seifert invoked his Fifth Amend- view. Accordingly, appellate counsel were rights. judge ment trial then denied not ineffective their decision not to Long’s trial request question raise these on appeal. issues ' jury. Seifert front of the The trial court Stephenson further appel claims that testimony of claiming held witnesses to late counsel failed to challenge the reason incriminatory have heard statements was able doubt instructions as erroneous. against penal admissible as statements Specifically, Stephenson disagrees with interest. instructions both the guilt pen *24 alty phase which define reasonable doubt Stephenson claims that appellate actual, fair, as “a logical doubt that counsel should have raised the issue that your arises in mind....” According to failure to allow the defense to force Siefert Stephenson “use of the verb ‘arise’ in the right jury to invoke his before the instruction violated rights reversible error. This contention fails be under the United States Constitution” be cause do not right defendants have a “requiring cause generate evidence to a force witness to invoke the Fifth Amend places reasonable doubt an unconstitution privilege ment jury. before the See Unit al burden on the prove defendant to Castorena-Jaime, ed States v. F.3d 285 ” innocence or his claim for life.... Ste (10th Cir.2002) (“The 931 district phenson also appellate claims counsel court did not by abuse its discretion refus should have challenged the instruction ing allow the compel Defendants to that “if the State failed to prove each of to appear Castoreña before the sim jury beyond doubt, these elements a reasonable ply to invoke his Fifth Amendment you should find the Defendant States, rights.”); Bowles United guilty....” argues (D.C.Cir.1970). F.2d “should” instead “must” in this instruc contends, appellate tion a allowed to find him guilty on counsel were for ineffective failure to raise less than a reasonable doubt. This court that, the issue objection, “[o]ver defense previously has held these same instruc jurors prospective were excused because proper. tions See Ben-Yisrayl, religious of their beliefs.” This is based on N.E.2d at 265. We think it plain that excusing jurors the State’s for cause who many presented more issues would have affirmed would not consider recom- greater prospect of appeal. success on mending penalty. the death According to None of these instruction errors was Stephenson, Indiana Code section 35-37- raised at trial approaches and none “fun 5(a)(3),12 exclusion, which allows such 1— damental permitting error” it to be raised “suppressed prospective those jurors’ preserved even not at trial. rights practice their religion.” He also contends that jurors exclusion of Finally, on this Stephenson claims that ground violates the equal privileges provi- appellate Court rendered counsel ineffec- I, sion found Article section 23 of the tive and meaningful disallowed appellate 37—1—5(a)(3) Indiana Code person section opinions entertains such conscientious 35— (2004) part pertinent good states it is a preclude person as would from recom- challenge prospective juror cause to "if the mending penalty imposed.” that the death sentence, seeking state is a death Er- to Motion to Correct Supplement and time fied briefing limitations by the review counsel. rors. placed appellate it limitations by supported pointing
This claim is Dis- Newly A. Standard Claims from the that was omitted any argument covered Evidence Stephen- revised page one hundred brief. initially filed a appellate
son’s
familiar standard for deter
permission to exceed
page brief without
mining whether new evidence mandates a
thirty
words or
the fourteen thousand
trial
requires
new
rules. We
appellate
pages allowed
(1) the evidence has been discovered
re-briefing
compliance with the
ordered
(2)
trial;
it
is material and
since
granted this court
rule at that time which
(4)
(3)
cumulative;
relevant;
it is not
it
permit party
to increase the
discretion
(5)
merely
it
impeaching;
is not
is not
designated
pages
to exceed
number
(6) due dili-
privileged
incompetent;
(1998).
Rule
Appellate
See
8.2
number.
it in time for
gence was used
discover
(7)
trial;
worthy
of cred-
rejected all of
the evidence
court
(8)
it;
upon
it
produced
can be
retrial
found that based
these claims and
case;
Strickland,
evidence,
will probably
includ-
it
“Stephenson’s
*25
testimony of
a different result
retrial.
produce
limited to the
ing but not
hearing,
the
PCR
[appellate counsel]
See,
665,
738 N.E.2d
e.g., Carter
a
prove by
preponderance of the
does not
(Ind.2000). Applying
frequently
appellate
evidence the ineffectiveness
test,
post-conviction
cited nine-factor
the
court ob-
post-conviction
counsel....” The
newly
court determined that “[t]he
review
counsel raised all issues
“appellate
served
by Stephenson
discovered evidence offered
meritorious” and that
believed were
cumulative,
worthy
is not
largely
Barnes,
745,
according to
463 U.S.
Jones
credit,
produce
would not
a
probably
3308,
claim showing confi- the burden of to undermine defendant rors were sufficient un- proffered “previously evidence was proceeding). outcome of the in the dence it confi- discovered” and that “undermines that he does Stephenson concedes guilt, penalty, in either the or dence” (k) literal terms of subsection not meet the think undiscovered” “previously both. We in the he offers this evidence because functionally “newly equivalent discov- post-conviction review and course of 60(B). Thus, Trial Rule ered” under proceeding has post-conviction after to meet the first and order However, it argues he run its course. judicially created requirements sixth to im arbitrary and inconsistent would be evidence,” “newly test for discovered review on pose a less onerous standard of “discovered since the evidence must be solely upon the capital defendant based trial,” defendant must have “used and the capital discov point in time the defendant it before trial.” diligence due discover agree with Ste ers new evidence. We 33.13 Fed.R.Crim.P. Cf. point it be unfair and phenson that would capital impose higher burden on a less Indiana Code Sec- Application B. present previously seeking defendant 35-50-2-9(k) tion post-conviction at a undiscovered evidence Newly Discovered Evidence Claims govern pre proceeding review than would post-conviction applied review court viously evidence after undiscovered the traditional nine-factor standard in eval- completion review. In uating Stephenson’s newly claims of dis- words, other to the extent the evidence is summarily evidence and covered denied undiscovered,” truly “previously —i.e. Supplement Verified to Mo- no at trial —it is of conse available tion to Errors. statute di- Correct quence point capital what defendant rects this Court to reevaluate these claims holding contrary it. A would unearths generous “pre- under the more standard of of the new simply prevent consideration viously undiscovered evidence that under- conjunction with all other mat in the mines confidence conviction death review but ters available *27 sentence.” considering subsequent pro it require in delay ceeding. only would be result post-con- contends that the expense. and added We conclude that testimony persons viction of several and a burdensome set forth in less standard a deposition statement and taken after the 35-50-2-9(k) applies Indiana Code section post-conviction “pre- denial of all relief are in newly cap discovered evidence claims viously undiscovered evidence” undermin- post-conviction proceedings ital as well as ing in confidence and death convictions newly discovered claims after evidence impli- of this sentence. Some evidence completion capital post-conviction murders, persons cates other review. some, credited, is exculpatory if of Ste- provides phenson. explained The statute that the defendant For the reasons be- low, majority that the “present” “previous- must evidence that is we conclude of the "Newly "newly 13. Evidence is discovered” if the de- Constitutes Evidence” Discovered (1) Meaning 33 of Federal Rules fendant shows that the evidence has been Within of Rule Relating to the trial” and of Criminal Procedure Motions for "discovered since demonstrates Trial, (1979) (2) (citing § diligence discovering present- Fed. 13 5 "due New 44 A.L.R. Glenn, cases). ing A. federal such evidence.” John What numerous not meet the offered evidence does stan- might discovered evidence in dif- result 35-50-2-9(k) dard of Indiana Code section against ferent verdicts him. not met his
because has bur- newly discovered evidence offered demonstrating is den the evidence by Stephenson cumulative, largely is “previously undiscovered.” worthy credit, and probably would produce a different result at a retrial First, findings by post- of this case. As Supreme Court has sparse conviction court are and do not previously stated, newly basis for requirements meet of Indiana Post discovered evidence should be received Rule section Conviction 6. That section great caution alleged and the new requires post-conviction court scrutinized, (citations carefully fact, specific findings “make and conclu omitted). sions of law all issues In presented.” post-conviction We find that rule, analyzing this this Court has made court’s lack of specific findings or of fact duty clear that judge is the of the trial “[i]t conclusions law is harmless error in this to relate the facts which he makes his credited, case. Even the new evidence (conclusion) determination the peti is basically consistent with the State’s the tioner is or is not entitled to the relief he ory that Stephenson was at least one of 327, 331, seeks.” Davis v. 263 Ind. Nothing killers. in the new evidence (1975). 330 N.E.2d The Court question contradicts calls into the testi 52(A), analogized this rule with Trial Rule mony of Funk and Mossberger, whose purpose of which to“is have the record credibility was the basis the State’s show the basis of the trial court’s decision case. that on the appellate may so review court
more readily
understand
former’s view
offers the
controversy.” Love
257 testimony of ten
previously
individuals as
57, 59,
Ind.
implicates
undiscovered evidence that
one
(internal
omitted)
quotations
(quot
marks
Guy
“Jimmy” Knight. Stephenson
James
(1970)).
ing Harvey, 3 Indiana Practice 426
testimony
also offers the
of two others who
post-convic
The standard for reviewing a
implicated
Mossberger,
Brian
one of the
specific
tion court’s
failure
enter
find
two principal
against Stephen-
witnesses
ings and fact and conclusions of law a son.
Davis,
harmless error standard. See
Only two of
wit
these twelve
Ind. at
Stephenson present did any not At post-conviction new proceeding, review material evidence to undermine Danyel the va- testimony Renfro offered that lidity of his murder Knight convictions. Brandy Ste- had threatened victim phenson prove by has failed to a prepon- shortly Southard before she was murd derance of the any newly However, evidence that ered.14 Renfro also testified Renfro, 14. who money was friends" with "best vic- sum of from Southard. Renfro also Southard, post-conviction tim testified at re- testified that Seifert to he indicated her that view that Knight they hap- Southard told her that knew about the murders before demanding pened Knight threatened Southard and a "crazy." was and that was trial, conclude that at we cannot presented all of this given information
that she post-conviction additions any trial. Ste- of the counsel before Stephenson’s brother, testify category David, testimony not at fall into the did their trial phenson’s review, testi- he evidence.” post-conviction trial. At undiscovered “previously with Ste- he had conversation showing fied that has no that Stephenson made shortly the murders and phenson before since trial or that was discovered Mossberger told him that diligence or his counsel exercised due he gun that was of the possession was requirement testimony. to elicit ultimately weap- found to be the murder why showing diligence includes of due that he on.15 David also stated disclosed if the wit- the evidence was unavailable at the to defense counsel this information were known to defense. With- nesses it Stephenson’s trial.16 Because time showing of intentional withhold- some out trial, defense at nei- was available to the witness, person who testifies ing by nor Ste- testimony ther David Renfro’s to have been trial can be assumed at characterized phenson’s testimony can be ap- exploration available for whatever Williams undiscovered. See previously as not Similarly, testimony was propriate. (Ind. 1023-24 N.E.2d elicited, it without more is reasonable 2003). not counsel made decision assume subject. no open makes post-conviction Four other wit any pre- witnesses was claim of these Francis,17 Beasley, Becky (Becky nesses Bruner19) presenting this evidence at vented from Martin,18 Carl testi Brandi any trial. Nor is there claim of active some Stephenson’s Although at trial. fied by any testimony of these four. post-conviction of their was concealment hearsay objection contacted 15. There no to this that her mother . testify testimony. counsel. Francis’s mother did not post-conviction, and counsel were asked Knight’s threats. about Francis’s account of 16. stated that he talked David story It is unclear how much Francis's subjects Stephenson’s counsel about the prior given Stephenson's trial. review, counsel but he he discussed However, nothing testimony from Francis’s thought subjects great- he talked about the any suggests that she withheld information review. He an- er detail from counsel. affirmatively swered when asked whether he would revealed all of the information to have Stephenson's that Southard told time of trial if 18. Brandi Martin testified counsel Knight threatening Stephenson's her South- questioned by counsel. had been Kathy that victim ard. Martin also testified thought Tyler told her that she was afraid and Becky Francis testified Seifert being no she was followed. There is indica- missing "dope” upset that was about some post-conviction testimony Martin’s tion from responsible which victim Southard was Stephenson's or from that Martin Knight that Seifert told to "take care from Ste- withheld of this information that she ex- Francis also testified situation.” Nor n are we given any phenson's counsel. Barenfanger pressed concerns to Christina unavailability at trial. explanation for its murders, other Knight Bar- was involved in the enfanger relayed Francis’s concerns gave a ride to *29 Knight stated that he Knight, came to Fran- 19. Carl Bruner and soon after morning Knight trial and Knight of the and confronted her. Francis cis’s house "they something similar to went too Knight "[a]nybody ever tells stated claimed that said me, "somebody worry dying went too far.” There is no they about far” or won't have to theirselves, testimony single that he they'll every person from Bruner's watch indication Ste- any this information from they withheld care about die around them.” She testi- "everything” phenson’s told her mother counsel. fied that she sight, Six other witnesses and charge there is no of ineffective (Terri West,20 Baker Greenlee Christina assistance based on failure to call Kifer,22 Barenfanger,21 David David Ste- Furthermore, them. even if counsel were Adams,23 phenson, Chad and Carla trial, aware these witnesses before Smith24) testify Stephenson’s did not at requires diligence the statute in discover- trial. has made no showing ing these witnesses and places the burden they information provided at on Stephenson why to show their testimo- post-conviction review was unavailable for ny was unavailable at trial. Thus, it “pre- trial. cannot be considered nothing offers to discharge that burden.
viously undiscovered evidence.” In hind- Stephenson offers the testimo
sight, argue one can that one or more of ny of two these have that is witnesses should been called to witnesses However, at testify “previously trial. a undiscovered evidence.” Rich or ard great Dwayne testimony number trial decisions strate- Williams’s at trial gies respect are flawed in some in hind- implicated and Knight Herschel Seifert in 20. Terri Greenlee West testified that at the by indicate whether Kifer was contacted Ste- murders, Becky Beasley, Jimmy phenson's prior time during counsel to Stephen- Knight’s girlfriend, living with West. son’s trial. morning West claimed that the after the mur- ders, Knight speak came West's house to 23. police In a transcribed statement to the Beasley Beasley with outside and that came 2003, Chad Adams claimed that he was at a very upset into back the house and was about Mossberger’s at night bonfire house the Beasley at murders. testified PCR that place. murders took He everyone stated that may living she have been at with West was outside when the victims drove murders, time of the but she was not com- party, point Mossberger which claimed pletely why sure. West was not asked she did gonna go "I'm catch son bitch.” earlier, testimony not come forward with this Mossberger Adams testified that after re- nothing and there is to indicate whether West turned Mossberger Adams overhead admit- by Stephenson’s prior was contacted ting committing Stephen- the murders to during Stephenson's to or trial. explained why son. He he had not come know, forward with this earlier. "I don’t Barenfanger 21. Christina testified that she everybody just disappeared everything Knight asked if he was involved the mur- anybody says anyone and all I know is if ders he affirmatively nodded and winked they doing other than John didn’t do it were Barenfanger her. When was asked if she die.” thought going police ever “about with happened jail," Barenfanger what in the re- Smith, mother, 24. Carla Chad Adams's testi- sponded, “No. I knew—I’d seen him in there deposition fied in that Chad's ex-wife's going figured, figured I court. I he was cousin Donald Goodman told her that Good- just messing my again head which he attending party man at Mossberger’s done, know, you had a hundred times before. Mossberger house into the came going But I seen him on TV to court for it. I day house with "blood on himself” the then, figured you didn’t know then murders. Goodman also told Smith that Barenfanger know.” asked at PCR Mossberger threatened Goodman and stated whether counsel contacted her keep that Goodman “better his mouth shut” prior during Stephenson’s to or trial. "going appears or he was to be next.” This hearsay objec- David Kifer testified PCR but was that he shared admitted without jail Knight Knight testify. cell with and that after tion. Goodman did not Carla Smith Stephenson's explained testified at why trial he came back to she had not come forward “Yeah, jail I get stated know earlier: "Just didn’t want be- involved and, didn’t do that. But he’s hit.” guy [a] Kifer was cause I knew you what this had done know, why else, not asked he just did not come mainly everybody forward with I was like earlier, know, testimony nothing you family and there is scared because I too.” *30 jury was Stephenson’s appeal, direct re- During post-conviction murders.25 sepa- testimo-
view, that with several witnesses’ presented testified on two Williams Seifert, he attacked Knight after trial was and and the ny implicating rate occasions attacks were that he that the jury and believed to believe the State’s evidence chose testimony implicating of his trial Stephenson, because Stephenson. against and in the This Knight Seifert murders. The additional testimonial N.E.2d at 499. testimony previously undiscov- plainly is and Smith does not Williams because it recounts events ered evidence Stephenson’s in con- confidence undermine post- A second place took after trial. that and death sentence. victions witness, Andrew review Robert conviction Jury Bias IV. Smith, as wit- had been called a defense challenges post-convic- testify and trial but had refused to ness at rejection his that court’s claim he tion contempt placed court held in and was impartial jury right denied his was At solitary confinement. exposed jury improperly was because review, time that he for the first testified extraneous, variety in- prejudicial to a the mur- Knight bragging he heard about argues Specifically, Stephenson fluences. “previously This undiscov- is also ders. (1) jury foreperson’s acquaintance it could not be ered evidence” because victim’s sister undermined the with the despite trial counsel’s presented at defense foreperson’s ability to as a fair and serve diligent efforts. (2) juror; impartial foreperson’s read- Although un- “previously this evidence is in the ing pro-prosecution crime novels discovered,” it confi- does not undermine jury during room trial created an unac- at- outcome. The dence ceptable influence that contaminated the related tacks on Williams could have been verdict; jurors’ awareness of and some trial, testimony at but there to Williams’s in a Stephenson’s prior fight involvement no to conclude that were basis Stephenson argues that prejudicial. truth- by revenge motivated for Williams’s collectively deprived him singly these and equally It testimony. plausible ful trial jury right of his Sixth Amendment to fair by anger motivated that the attacks were right Fourteenth Amendment trial falsely implicated because Williams process. to due review, Smith Knight. At to events that occurred seven testified Acquaintance A. Juror’s with Victim’s “wasn’t years earlier admitted he Sister trying [Knight] half of what hear jury Stephenson contends that importantly, prosecu- saying.” More foreperson acquaintance Fox’s Michael freely Knight and Sie- tor conceded Seibert, Kim of victim Ka with sister mur- might have involved fert been thy Tyler, ability undermined Fox’s re only argued jury but ders to a right main fair and Any impartial. guilt was them. before by a panel trial “a fair trial includes of others for the State pursuit jurors.” Turner v. impartial, noted in indifferent consider in the future. As we Knight clip weap- Dwayne cause left his in the murder 25. Richard Williams testified trial because Herschel had advanced jailed in cellblock as on and also that he was the same large Jimmy Knight Knight a amount of crank. Williams and that Herschel Seifert Knight respond Knight conversing also heard to Herschel he overheard Herschel right upset no because Specifically, Williams Herschel had about the murders. the hit. getting angry Knight was the one who ordered be- Herschel heard Herschel
1055 Louisiana, 471, 466, 546, presented S.Ct. 379 U.S. 85 no specific evidence that Fox (1965). 424 In certain circum was 13 L.Ed.2d biased has made no showing that stances, Fox’s juror failure of a to disclose nondisclosure of this “[t]he casual connec- tion to any Seibert had relationship parties may one of the effect on Fox’s performance juror. short, as a In prejudiced party entitle the to a new trial.” post-conviction State, (Ind. ju- court’s Godby 252, conclusion 736 N.E.2d 256 ror 2000) Fox’s State, relationship with Seibert (citing 415, “does Haak v. 275 Ind. not show bias or a predisposition to con- 321, (1981); 417 N.E.2d 326 Barnes v. clearly vict” Indeed, was not erroneous. it State, (1975); 263 Ind. N.E.2d 743 , clearly seems correct. State, Block v. 100 Ind. 1885 WL 357 4222)). To obtain a new trial based on a B. Reading Juror’s Crime Novels juror misconduct, claim of the defendant Stephenson contends that must fore demonstrate that the misconduct was person reading mysteries Fox’s of murder likely gross and harmed the defendant. in the room during trial exposure was Furthermore, pres Id. the defendant must to extraneous information that contaminat “specific, ent substantial evidence” estab ed the verdict juror and amounted to mis juror lishing that a possibly biased. noted, already conduct. As to warrant a State, Guyton N.E.2d juror new trial on a claim based miscon (Ind.2002) Lopez v. (quoting duct, the defendant must demonstrate not (Ind.1988)). 1119, 1130 N.E.2d only that gross the misconduct was but dire, During voir all prospective also that probably it harmed the defen jurors any possible were asked about ac dant. Carr v. victims, quaintance with the the victims’ (Ind.2000). Exposures to extrinsic influ families, or any other trial witnesses. Fox during ences trial such newspapers as did not relationship disclose Sei- programs television recounting facts of the post-conviction bert. Seibert testified in trial are evaluated under this standard. recognized she had Fox at Stephen See, e.g., id. son’s did trial but not know whether Fox Juror Fox read crime novels breaks recognized her. At point during some eight throughout months of trial. trial, Fox informed by his wife that completely These novels were unrelated to Seibert was Sunday Fox’s children’s school given trial. We are no basis teacher, and Fox realized that he met juror’s conclude that would affect a Seibert. He did not inform the trial court impartiality. court of this fact. When he was asked about his by concluded that reading juror Mi- “[t]he relationship to Seibert at chael Fox murder mystery books review, Fox stated juror author Patricia Cornwell is not mis- Oh, know, just I Kim. knew Miss You I conduct, predisposi- and does indicate didn’t any- know what her name orwas juror tion part on the of this to vote for else, but, know, thing you when she told conviction in this finding case.” This me that put is—I two and two clearly again, erroneous. Once it know, together. just You I knew her plainly seems correct. name was Seibert or Seibert or however
you pronounce it. Knowledge C. Jurors’ Prior Altercation Although Fox should have informed the acquaintance court of his with Seibert Stephenson argues that he was it, when he discovered has right process denied his to due when one *32 1056 any agree. appears It juror.” We altercation sues an unrelated
juror mentioned
jurors
among the
exchange
that the
During
Stephenson.
post-convic-
involving
short,
that overheard the
juror
and the
affi-
review,
the
Stephenson submitted
tion
to
mention the incident
other two did not
stating:
Reiff
juror Merrily
davit of
jury. Although it is unfortunate
the whole
trial, the
many months of the
During the
in-
any
information was
extraneous
many
jury
small
hours
the
jury spent
deliberations,
jected
this information
into
courtroom.
one
the
On
room behind
per se
to constitute a
is not sufficient
juror
I
overheard
woman
occasion
468,
jury.
Id. at
371
of the
contamination
juror
an inci-
another
about
talking with
(“[T]he
has refused
at 386
Court
N.E.2d
at a bar
involving
John
dent
jury
infor-
contact with outside
hold
men-
juror
The
Newburgh.
woman
always
overthrowing
cause for
mation is
some sort of
that there
been
tioned
verdict_”).
court’s
had used a shovel
scuffle and
John
jurors’
knowledge
conclusion that
ju-
As
during the
the two
altercation.
prior fight
predispo-
“does not show a
talking,
juror
up
spoke
a third
rors were
convict,
juror
part
any
sition on the
stop talking about
they should
and said
played
and has not been shown to have
immediately,
which
the incident
deliberations,
in-
part
any
material
did.
case,
juror’s
of the
dividual
consideration
information
jurors never disclosed this
clearly
otherwise” was not
erroneous.
or
held that
trial court. We have
Suppression of Material Evidence
IV.
jurors’
not in the
consideration
challenges
post-
the denial of
defen
record amounts
he failed
conviction court’s conclusion that
See, e.g., Sa
right
dant’s
to confrontation.
“prove by
preponderance
of the evi
(Ind.
State,
274,
v.
490 N.E.2d
278
perito
suppressed
that that the
evi
dence
State
1986). However, not all constitutional er
dence that was material
id.;
requires
Dyer
ror
reversal. See
v.
Relying
to his
guilt
punishment.”
State,
283,
Ind.App. 278,
N.E.2d
168
342
83,
Brady Maryland,
v.
U.S.
83 S.Ct.
373
(1976).
671,
harmless
674
If
error is
1194,
(1963), Stephenson
rate. Later at trial testified SHEPARD, C.J., DICKSON,
that he was mistaken sequence about the SULLIVAN, JJ., RUCKER, concur. of events and that he Mossberger visited first, S, went Circle and then went SHEPARD, C.J., with separate concurs review, home. At Stephen- DICKSON, opinion joins. in which J. son offered the affidavit of Lisa Huddle- SHEPARD, Justice, Chief concurring. ston, who was a clerk at the Circle at all S times, relevant A few testimony to refute the words about the rhetoric of mod- penalty litigation Officer Hildebrand. The affidavit ern death regards stated as that Huddleston single viewed the surveillance most common issue—effective assis- tape with an officer and that she saw both tance of trial counsel. lawyers at trial were two M. and Sandra Tabatha J. NAUGLE bench and known to the well
practitioners Anthony Long Cain, Behalf Themselves Lead counsel bar. Situated, years experience Similarly Appellants civil thirty-five Others work, including as four terms (Plaintiffs criminal trial below), Attorney County, Prosecuting Warrick jurisdic- fastest-growing one of Indiana’s of the murders at issue. and the site SCHOOLS,
tions BEECH GROVE CITY of Evansville below). Dennis Vowels (Defendant Co-counsel Appellee of criminal law than a decade had more No. 49S02-0606-CV-242. *34 Stephenson’s tri- time of experience at the respectable reputation al and had built Indiana. Supreme Court Both defense. the field of criminal April training in the defense specialized received cases. capital beyond well team went The defense consisting six or sev- eventually
lawyers, variety ex- including a altogether,
en mitigation spe-
perts, investigator, fact
cialist, year that this paralegals. defending Stephenson was spent
team enjoyed
intensive one in which the defense a third of
essentially unlimited resources: time, $65,000 lawyer
a million dollars time, mitigation expert
worth of brought defense
paralegal efforts $558,000. rec-
bill collec-
ord has the details provided length.
tive effort at some us is that the
The contention now before It “perfunctory.”
foregoing defense was short,” “laughable,” a “woefully
declared by lawyers who were
defense conducted
“willfullyuninformed.” a sea-
The facts otherwise: establish respected practi- team of
soned defense
tioners, experts aided a collection mounting defense with investigators, financial resources. benefit of vast Sixth beyond any notion of what the
Well guarantees.
Amendment
DICKSON, J., joins. notes what knew learn Commonwealth According officers.11 Ste- vestigating crime, any mitigat- about the to discover