Taylor v. State

state, disciplinary action is Lor- bar of this this occurred because zo’s sudden turnabout dismissed as moot. that David had testified. enzo remembered sum, supports In a determination the record of this Court is directed to The Clerk “newly trial court that the discovered respon- of this Order to the forward notice worthy of credit. Accord- evidence” was attorney, dent and his Indiana Su- ingly, trial within its discretion court was Commission, preme Disciplinary Court denying motion to correct error. pursuant to all other entities Ad- 23(3)(d). Conclusion mis.Dise.R.

We affirm the trial court. All Justices concur. C.J., DICKSON,

SHEPARD, SELBY, JJ., concur.

SULLIVAN and TAYLOR, Appellant-

Demetrius Petitioner, In Matter Marvin K. HORINE. Indiana, Appellee-Respondent. STATE No. 85S00-9712-DI-651. No. 49A02-9710-PC-673. Supreme Court of Indiana. Appeals of Indiana. Court of

Sept. 1998. July 1998. Sept.

Transfer Granted SHEPARD, Chief Justice. respondent, now Marvin K. Ho-

Comes

rine, and tenders to this Court his affidavit of state,

resignation pursu- from the bar Discipline

ant to Ind.Admission and Rule

Section Court, advised, duly being

And this now respondent’s complies

finds that the affidavit requirements

with the Admis.Dise.R.

23(17). Accordingly, we find that it should approved. IS, THEREFORE,

IT ORDERED that resignation

the affidavit of from the bar of respondent,

this state tendered Mar- Horine, hereby accepted.

vin K. Accord- is

ingly, of this the Clerk Court directed Attorneys.

strike his name from the Roll of THAT,

IT IS ORDERED FURTHER

light respondent’s resignation from the

FACTS the victim left her On December open apartment slightly when she went door apartment building to to the front of her neighbor was to take the victim’s meet a who the victim re- daughter to school. When bedroom, she was confronted turned to her Taylor by Taylor, who a knife. ordered had bed, and lie on the the victim to disrobe where he forced her to have intercourse. Afterwards, Taylor asked the victim if she any money inquired and also about packages under a Christ- contents of some Taylor after he mas tree. left warned police. victim not to call the Taylor guilty Rape, A a class found Confinement, felony3 felony,2 A a class B and Burglary, felony.4 B class provided facts will be as need- Additional ed. STANDARD OF REVIEW Defender, Carpenter,

Susan K. Public Vic- post-conviction Christ, Defender, An action for relief Deputy toria Public India- remedy special quasi-civil party is a where a napolis, Appellant-Petitioner. for which, reasons, can raise an error for various Modisett, General, Jeffrey Attorney A. Ra- or known at the time of the was not available Zaffrann, General, Deputy Attorney chel In- original appeal. trial or Ind. Post-Convic dianapolis, Appellee-Respondent. for 1(1); Long tion Rule (Ind.Ct.App.1997). petitioner OPINION seeking post-conviction relief has the burden pre establishing grounds by for relief MATTINGLY, Judge. 1(5); ponderance of the evidence. P-C.R. Taylor appeals Demetrius the denial of his Long, 679 N.E.2d at 983. The standard of petition post-conviction for relief. We con- post-conviction hearing review for a is similar solidate and restate his issues as: judge to that of other trials where the trial hears the we review the trial evidence and improper 1. references at trial to Whether ruling. judge presides court’s who over Taylor’s post-arrest silence constituted re- post-conviction hearing has exclusive au error; versible and thority weigh evidence determine Taylor subjected 2. Whether to double So, credibility of the witnesses. Id. we jeopardy when he was convicted both ruling will not set aside the trial court’s on and confinement.1 post-conviction petition unless the evidence is solely without to a result We reverse and remand. and leads conflict 1.Taylor argues lyze Taylor’s in the alternative that he was substantive issues within the context denied his to effective assistance of counsel of an ineffective assistance of counsel claim. appeal direct because counsel failed to raise on improper Taylor's issues reference 2. Indiana Code Sec. 35-42-4-1. post-arrest silence and the double viola- Taylor tion. Because we believe has demonstrat- Indiana Code Sec. 35-42-3-3. post-conviction ed fundamental claims are not waived counsel's failure to raise them Therefore, appeal. on direct we need not ana- Indiana Code Sec. 35-43-2-1. A. Hum. from that reached the trial court. Uh different

Id. !|: ^[*] Q. Okay, you didn’t choose to tell him

DEFENDANT’S POST-ARREST this, you? did SILENCE A. No. prosecution asserts the im post-Miranda properly post-arrest, used his here, yesterday today, But sat impeachment purposes, in silence for viola evidence,.... heard [the victim’s] prohibition tion of the Due Process Clause’s A. Yes. interpret against fundamental unfairness as Ohio, ined 426 U.S. 96 S.Ct. point Taylor’s R. 449-50. At that counsel (1976). 2240, 49 L.Ed.2d 91 The Miranda objected. The State withdrew its implicit warnings give a criminal defendant objection. after the court sustained the carry penalty; that silence will no assurances thereafter, Shortly Taylor the State asked so, circumstances, fundamentally in some it is you story “So it’s now that choose to offer a deprivation process unfaii- a to due explain your being that would in vic- [the person’s allow the arrested silence to be used apartment, right?” Taylor’s tim’s] counsel impeach explanation subsequently to an of objected, again objection over- his was 2240; at trial. at 96 fered Id. S.Ct. Taylor responded ruled. that he told his (Ind.Ct. State, Bevis v. 614 N.E.2d 602 story day mother the same the after he was App.1993). Doyle Because the nature of a arrested, and his mother so testified. R. 454. egregious inherently error is preju so so Later, Daggy, the State called Lieutenant an dicial, reversal is the norm rather than the officer, investigating back stand and exception. White v. 647 N.E.2d following exchange the occurred: (Ind.Ct.App.1995). Doyle 688 violation is error, not, by party fundamental and a does Q. you investigation you Did do all the trial, object failing to at his or her waive necessary? felt subsequently to raise the issue. Id. A. Yes. Taylor at trial that he testified had known Q. you Is there more could have offense, prior

the victim to the date the done, uh, you thought if there was de- engaged in that the two had a sexual encoun- fense of consent? incident, ter about a month before the Well, anybody A. would tell me that Taylor apart- the victim had invited to her consent, know, you there was a defense of offense, ment on the of the date and that the uh, know, questions, you I would ask engaged two in consensual intercourse. He you person, long “Where did meet the how raping the denied victim. On cross examina- them, consensual, you if it have known tion, questioned Taylor why the State about many you how times have had consensual he this consent defense raised earli- sex, you you at had the where were when er: sex,” you try to cor- consensual and then meanwhile, Q. there’s been six So months roborate those kinds of statements with an then, since ... investigation. A. Yes. Q. you questions would ask those Who And, Q. ... isn’t that correct? all this of? you time knew that were accused of Uh, Taylor. A. Demetrius rape, ... Q. him asking questions, Before what are A. Yes. you required to do? Q. raping ... of [the victim]? rights. A. him of Advise his

A. That’s what I was accused of. Daggy you, Q. Mr. of his And Lt. asked to interview Did advise

rights? Yes, Tay quantum I A. did. evidence guilt overwhelming was not so as to lor’s at 512-13. R. points error harmless. The render the State imper questions The State’s were provided victim out that the detailed testimo standard, they Doyle missible under as ny describing rape, correctly 1) puts the use to prosecution which the “repeated char- State’s references cannot be silence; post-arrest the as prosecutor acterized inadvertent. The 2) pursue ques- who elected to the line of spread throughout comments trial these the tioning; in to jury [the an effort convince the that 3) quantum the of other evidence indica- guilt defendant’s] silence and indicated guilt; tive of proved explanation in-court Id. his false.” 4) the intensity frequency and of the refer- Taylor’s nu- The to references silence were ence; and merous, they trial and shifted the focus of his question recently to the of whether he had 5) availability judge the of to the trial the the consent fre- fabricated defense.6 The opportunity grant to motion for a quency intensity were of the remarks give mistrial or to curative instructions. we cannot such that conclude the error was We will in turn. Id. examine factors the harmless. previously ques- 1. Based on the set out Finally, question 5. we look to the wheth- tions, it is clear that the the State used judge opportunity er trial to the had the testimony Taylor’s post-arrest about silence jury of dangers type warn the the of of impermissible the of purpose impeaching for Taylor’s testimony. judge did sustain Taylor’s exculpatory testimony. objection Taylor’s initial to the to reference pursued questioning The line of was post-Miranda Upon objection, silence. the primarily, by but exclusively, judge question not the State.5 “If that the or the stated was above, testimony quoted length speak 5. After the we at know are not allowed to to the prosecutor deputy counsel called the as argues R. at that defendant.” 522. The State witness in order to demonstrate to the that eliciting testimony following that State’s the deputy had been made of the consent aware questioning Taylor Tay Daggy, and Lieutenant prior depu defense several months ty to trial. The very counsel "invited the now lor’s error he prosecutor Taylor's stated she aware Appellee at 9. claims is fundamental.” Brief of defense, suggested counsel had that be a would by Tay attempt to We decline characterize this say nothing she went but on to "I heard from salvage de lor’s counsel client's consent deputy your prosecutor client.” R. at 522. The fense as an "invitation of error.” then stated that she could whether she not recall Daggy discussed the defense with Lieutenant reject 6. We must State's characterization say "My that time. She at standing went on to under Taylor’s post-Miranda the references to as silence thorough was that he had done a inves "cryptic,” tigation "oblique,” Appellee possible Brief of at of all that we could defenses address, defendant, "isolated," speaking Appellee without as Brief of at 10. to the

275 inference, permitted constitutes a violation of two distinct statuto- is no inference there course, ry provisions require proof which and, will be disre- do person an additional fact. Cossel v. jury, each has garded because (Ind.Ct.App.1996). N.E.2d testify or not discuss Our right not to only anyone analysis R. at must include not an evaluation or else.” with the lieutenant comparison statutory provisions, but must examine the factual bases contained judge’s believe the remarks We do not in the information or indictment. Id. sufficiently error so as to cured judge it harmless. The referred to render rape charged Where crime of right testify,” “the not to which was not the rape, necessarily it as forcible includes the objection right Tay- for the and which basis force, to the extent or crime asserting was not at his trial. The refer- lor force, rape. threat of effectuates Web anything” to “not discuss ence to the (Ind. 1212, 1214 ster v. 628 N.E.2d damage mitigate was also insufficient 1994). result, As a we must look to the facts testimony, vague as that improper from the of the case and the factual bases contained Doyle protections could not reference to the sepa the information to determine whether a convey jury the reason the clearly Wethington rate confinement occurred. objectionable were to be comments were 560 N.E.2d Further, disregarded. judge the trial al- separate violation of the confinement statute lowed, objection, subsequent testimony over will be found where other confinement of previously had not to the effect beyond the victim that inherent the force it his consent defense and that must asserted used to effectuate the exists. Id. therefore have been a recent fabrication. Cossel, In at also a beyond a reasonable We cannot conclude case, there was found to and confinement arising from the testi- doubt that error jeopardy violation where “the evi- no double post- mony regarding Taylor’s post-arrest, presented at that after dence trial shows jury’s influence the Miranda silence did not having sexual intercourse Cossel had finished harmless, The error was not and verdict. K.D., with he turned her onto her back. Taylor’s convictions must be reversed. pillow Record at 415. A covered KD.’s face with began ‘jabbing’ and K.D. Cossel DOUBLE JEOPARDY knife. Record at 415. He then threatened Taylor’s convic While we reverse K.D. not to tell her husband and warned her violation, Doyle tions because of the we ad kill her. police or call the because he would well, Taylor’s jeopardy dress double claim as K.D. that he Record at 415. Cossel also told again as it is certain to be an issue on your boy little would come back and ‘shoot remand. you.’ at 415.” laying there next to Record jeopardy Taylor asserts that double the case here. con- That is not convict principles were violated when he was of his victim was limited finement criminal confinement. dou ed and surrounding the other crime circumstances violation, violation, jeopardy like a ble that after the charged. The record reflects is fundamental error and so is not waived if rape, Taylor got up asked the victim and present a defendant’s failure to it on direct any money, she tried to hand she had See, appeal. e.g., Grafe jar pennies, which he would not him a (Ind.Ct.App.1997), 892-93 where we de got R. 198. then testified that he take. She petitioner termined that a who had been sorry”, “I’m at which the knife out and said post-conviction relief not waive his denied did didn’t have to do point she stated that “he jeopardy present it double claim failure to that, police, I that I wouldn’t call the appeal jeopardy on a double direct because record, it do but police and wouldn’t violation is error. fundamental following get R. 243. The me trouble.” testimony was then elicited: jeopardy, purposes For of double Q. with the knife then? act So what did he do two offenses are the same when the same his conviction of confinement must be vacat- that’s when he turned around A. Then living room. ed as a result. walked towards the Q. you? were Where CONCLUSION Following him. A. behind Taylor’s post- The references at trial to Q. just keep walking ... Did he toward Tay- arrest silence were reversible living into the room? subjected lor was to double when A. Yes. charged of con- he was with and convicted Q. stop? Didn’t when the force used to confine his finement By got A. the ... when he No. victim was coextensive with the force used to living stopped. room he rape charge. His convictions are the cause is remanded. reversed and And, there, Q. just you followed him out then, right? DARDEN, J., concurs. A. Yes ... FRIEDLANDER, J.,

Q. you still dissents with Were naked? opinion. my I I A. I can’t recall. think threw

flannel shirt on. FRIEDLANDER, Judge, dissenting. respectfully majority’s

I dissent from the conclusion that And, Q. you living got when out to the convictions must be reversed. room, you that’s when he asked about the presents, Christmas don’t have majority acknowledges the two money, how could have all these Taylor presents normally issues would be presents? Christmas subject to waiver because failed to right. A. That’s preserve majority them. The nevertheless addresses the issues on the merits on the sjs ij: ij: % # ground that the errors were fundamental and presents]? Did he take [the subject majority to waiver. I believe the just A. No. He ... kind looked around applies the fundamental error doctrine too lying me I’d better not about call- told broadly in view of the fact that the errors are ing police. presented post-conviction proceeding. in a R. 243-246. A. That’s correct. then, uh, had some ... he didn’t take it asked for apartment, ^[******] So this fellow he money, ... just said and, uh, just raped you good-bye told and left the and, uh, him ... and plied flected in the court doctrine is ce waiver Canaan seeks to avoid In Canaan v. in the 141 indicated rt. doctrine L.Ed.2d denied, significantly following: post-conviction setting, that by arguing 141 — 683 N.E.2d 227 (1998), U.S. narrowed when fundamental application that it does not -, our 118 S.Ct. supreme as re error (Ind.1997), ap apply challenges This con- ... evidence does demonstrate here because “these such, beyond necessary finement that to effectuate raise As he fundamental issues.” subjected rape, Taylor so was to double makes a bold assertion of the fundamental he of It that have when was convicted both error doctrine. is true we rape, Taylor’s acknowledged exception crimes. After the victim not an to the waiver only apparently put in the trial court was free to on some rule circumstances where Taylor clothing, but she also followed from committed “fundamental error.” We view one, living exception extremely an the bedroom to the room. This is this as narrow only separate insufficient evidence to available “when the record reveals Taylor improperly clearly ele- charge. was blatant violations of basic and confinement, mentary principles process], and [of convicted of due both

277 else,” anyone at sufficient to be Record was potential for harm cannot harm or may cure error that have occurred. See process due concerns over denied.” While State, Lay v. 659 N.E.2d 1005 of a funda- merit invocation do sometimes purposes For of the issue under consider- exception contempora- to the mental error ation, in performance trial counsel’s this mat- objections appeal, on direct we neous rule exception inadequate. ter cannot be characterized as availability as an to the think its appellate failure to proceedings Neither can counsel’s post-conviction in waiver rule ineffective assis- present the issue constitute to those circumstances generally limited error, State, if tance in view of the fact that the Bailey in v. we set forth (Ind.1985): any, “[Deprivation was cured. to effective the Sixth Amendment alleged Doyle The fourth violation oc- counsel, or ... an issue de- assistance of investigating curred when the officer was petitioner to the at monstrably unavailable investigation would have dif- asked how his trial and direct [or her] the time of his Taylor would assert a fered he believed appeal.” He answered that he consent defense. v. 683 N.E.2d at 235-36 n. 6. Canaan the nature of would have tried to ascertain Canaan, the fundamental error Pursuant relationship Taylor and the between vic- post- only can be invoked in the doctrine response arguably suggested that tim. The setting respect types with to two conviction previously asserted had not the de- (1) ineffective assistance of claims: claims of fense. (2) counsel, issues that were unavail- In order to succeed on a claim of ineffec appeal. I at the time of trial and direct able counsel, a must tive assistance of defendant majority resolving in believe the errs performance demonstrate that counsel’s fell Taylor’s peti- appeal from the denial of PCR objective that such below an standard and grounds tion on other than those identified performance prejudicial was so deficient and that the issues It is clear to me Canaan. trial, was a fair defendant denied the time of Taylor raises were available at i.e., a trial whose result unreliable. Therefore, appeal. trial and direct the er- (Ind. Bannowsky N.E.2d presented Taylor’s petition must rors PCR 1997). analyzed in the context of his claims investigating response if the officer’s Even assistance of counsel. ineffective is not warranted constituted reversal case, In the I instant believe majority, I in the instant case. Unlike the respect petition with convic- PCR guilt view the as more than mere evidence has tion should be denied because he failed sufficient, certainly ly of such a character that he received ineffective to demonstrate beyond that I am convinced a reasonable regarding alleged of counsel assistance doubt that the would have returned the four instances of violations. Of guilty regardless verdict comment. violations, alleged Doyle were elicited two (Ind.Ct.App. 614 N.E.2d 599 Bevis questioning of a witness. defense counsel’s 1993). way, Put another I believe that the error is neither reversible error Such invited There result of the trial was not unreliable. Kingery nor fundamental error. See v. fore, assis counsel did not render ineffective State, 659 N.E.2d 490 regard. tance in this allegation The third of a violation Having found no ineffective assistance during occurred the State’s cross-examina- concerning rape charge, I would counsel the Taylor. Taylor tion of was asked he had affirm that conviction. investigating told the officer that the victim conviction, Turning to the confinement engage consented to in sexual intercourse. now view, objection reviewing for a claim of ineffec my by In the de- the standard immediate counsel, appellate counsel is the followed trial court’s tive assistance of fense reviewing adequacy disregard instruction to and ad- same as that used Lowery representation. everyone that has the of trial counsel’s monishment (Ind.1994), State, de- the lieutenant or 640 N.E.2d 1031 cert. to “discuss with nied, (Ind. 525, State, 412, 516 U.S. 116 S.Ct. 133 Valentin v. 688 N.E.2d (1995). 1997) (“[i]n Appellate L.Ed.2d 432 any separate counsel’s fail- the absence of state present jeopardy defendant, ure to a challenge argument by double constitutional law that would have Appeals succeeded constitutes inef- the Court of should not have based fective assistance of counsel. See conspiracy Games v. its reversal of defendant’s convic- State, (Ind.1997), clause”). 684 N.E.2d 466 tion on jeopardy the Indiana double modified grounds upon Therefore, on reh’g, other 690 N.E.2d 211. we are constrained to address the jeopardy question only double in the context I note first that we are foreclosed constitution, utilizing analy- of the federal from analyzing jeop- Games double prescribed by Supreme sis the United States ardy claim under the Indiana Constitution. challenges arising Court for under the feder- Games, that, In supreme our court clarified Jeopardy al Double Clause. properly present separate order dou- jeopardy ble claim arising under the Indiana case, Taylor In the instant was convicted Constitution, a defendant must than do more rape majority of both and confinement. The merely provision cite that greater and claim that jeopardy analysis states the double fo protection: involved, only upon cuses not the statutes but In presenting general upon claim that his also “the factual bases contained in the jeopardy pro- sentences violate the double information Op. or indictment.” at 275. vision of the Indiana squarely and United States This is supreme at odds with our Constitutions, the defendant cites both court’s observation that “the States United However, Supreme constitutions. the defendant Court’s ‘same elements’ test re provide does not authority, quires Indiana only and we that we look statutory to the Court, find none from establishing offenses, an charging elements of the not to the independent information, jeopardy protec- state double outlining instructions upon tion analysis crime, based an of the Indiana the elements of underlying or the Constitution.... presents proof The defendant needed to establish the elements.” argument no urging that the Indiana Con- Games v. 684 N.E.2d at 477. The provides stitution jeopardy protec- proper analysis Games, double was set forth in tions different from those under supreme the feder- where our court observed that the al constitution.... Because the defendant jeopardy analysis federal double focuses present fails to argument upon an upon statutory based elements of the offenses separate analysis of the Indiana Constitu- charged and not on the facts that must be tion, only analyze “we will proven this under particular fed- under the indictment at eral double standards.” (citing issue. Id. at 476 United States v. Dixon, 509 U.S. 113 S.Ct. Games v. 684 N.E.2d at 473 n. 7 (1993)). L.Ed.2d 556 (emphasis in original) (quoting Gregory-Bey (Ind.1996)). 157 n. 8 Indiana’s criminal confinement statute re- In his jeopardy argument pertain- double quires proof of nonconsensual in- substantial ing Constitution, Indiana person’s liberty, cites terference awith see IC several 35-42-4-1, § decisions of this court while the requires statute his contention that proof the Indiana Constitution of forced sexual intercourse with a greater protection affords than its opposite federal member of the § sex. 35- See IC counterpart. He cites other decisions of this 42-3-3. It is clear that requires proof each court, however, disagree propo- with the of an additional fact with the other does not: Beyond sition he advances. said citation of criminal requires knowing or authority, Taylor separate analysis offers no intentional liberty; interference with under the Indiana My requires Constitution. under- knowing or intentional forced sexual standing of the Games decision leads me to Accordingly, intercourse. conviction separate analysis conclude that the lack of a of both offenses did not violate the Double provision the Indiana Jeopardy constitutional Clause of the United States Consti- question prevents this court from appellate even ad- tution. It follows that counsel’s dressing in that prejudice context. See failure to raise the issue did not ineffective assistance his claim of Taylor and thereby fails. regard counsel in that assistance of

Having found no ineffective alleged Doyle violations either the

counsel on jeopardy question, I would the double

or post- Taylor’s petition for the denial of

affirm relief.

conviction GRIESINGER, Appellant-

Robert

Defendant, Indiana, Appellee-Plaintiff.

STATE

No. 71A03-9710-CR-383. Appeals of Indiana.

Court of

July Sept.

Transfer Denied notes exculpatory impeach Taylor’s used to were vic testimony that the uncorroborated of the testimony by making to direct reference tim is sufficient conviction. However, post-arrest under some silence. However, we decline to hold that evidence circumstances, may Doyle violation merely convic which is to sustain a sufficient whether harmless error. To determine necessarily that it “overwhelming” tion is so harmless, as a error we assess the record outweighs the harmful effect of State’s probable impact whole measure the inquiry See into defendant’s silence. improper jury. If we can evidence on the (Ind.Ct. White beyond conclude a reasonable doubt that the App.1995), where we that a vio found verdict, did not error influence the part in lation was reversible because is harmless. error Henson judg credibility the trial came down to a 1064, 1067 N.E.2d against ment: it was the victim’s word against Defendant’s. The State’s evidence conducting We look to five our factors Taylor was the same nature. analysis: White, the statements Like

Case Details

Case Name: Taylor v. State

Court Name: Indiana Court of Appeals

Date Published: Sep 30, 1998

Citation: 699 N.E.2d 270

Docket Number: 49A02-9710-PC-673

Court Abbreviation: Ind. Ct. App.