Timmy T. ZIEMAN, Aрpellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
No. 45A03-1301-PC-1.
Court of Appeals of Indiana.
June 25, 2013.
Here, there was evidence that the Bridgewaters’ involvement with FACES resulted in disorder and interference in the activities of the organization due to Elizabeth‘s and Alyssa‘s conduct. FACES could have expelled them from membership in the organization, and any order requiring their readmission would have, I think, infringed upon FACES‘s First Amendment right to expressive association for, as the Court in Dale observed, “[f]reedom of association ... plainly presupposes a freedom not to associate.” Id. at 648, 120 S.Ct. 2446 (quoting Roberts v. United States Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). Had the Bridgewaters been expelled from the group before the dispute over the menu at the Masquerade Ball and been advised plainly and honestly that the reason for the expulsion was Elizabeth‘s and Alyssa‘s disruptive conduct, any attempt at forced reintegration of the Bridgewaters into FACES would have raised serious questions about infringement upon FACES‘s right to expressive association.
But that is not what happened here. FACES‘s expulsion of the Bridgewaters in this case, the announced reasons for which wеre the Bridgewaters’ disruptiveness, was found to be retaliatory because of its sequence and timing. And while I concur in the majority‘s resolution of the matter, I think it important to state clearly that it is only FACES‘s retaliation, as found by the ICRC, that prevents the ICRC‘s order from amounting to an infringement upon the group‘s right to expressive association.
I think it unfortunate that we have been brought into a private dispute between two religiously-oriented parties who have chosen not to engage the public education system. Yet one seeks to entangle the other in a quest for accommodation typically required of public educational institutions, while the other has organized itself in a way that sеeks to exempt the group almost entirely from our state‘s civil rights laws while claiming special status under the tax code.
I do not think that the legislature‘s broad intent when it enacted our civil rights statutes involved making the ICRC and our courts arbiters of such private disputes as have arisen between FACES and the Bridgewaters. But constrained by the language of the statute and mindful of our obligation to avoid constitutional questions, I reluctantly, but respectfully, concur in result.
Stephen T. Owens, Public Defender of Indiana, Victoria Christ, Deputy Public defender, Indianapolis, IN, Attorneys for Appellant.
OPINION
CRONE, Judge.
Case Summary
Timmy T. Zieman fled from police and crashed his car into an officer‘s vehicle, causing that officer serious bodily injury. The State charged Zieman with several crimes including attempted murder and class C felony resisting law enforcement resulting in serious bodily injury. A jury found Zieman guilty but mentally ill of these offenses. The trial court sentenced Zieman to an aggregate sentence of thirty-five years.
Zieman filed a petition for post-conviction relief (“PCR“), arguing that his trial and appellate counsel were ineffective in failing to argue that the same evidence supporting the attempted murder conviction also supported the serious bodily injury element that elevаted the resisting law enforcement conviction to a class C felony and therefore his convictions violated double jeopardy principles. The post-conviction (“PC“) court found that there was no double jeopardy violation and denied Zieman‘s petition.
Zieman now appeals the denial of his PCR petition. He argues that trial counsel was ineffective in failing to challenge the elevation of his resisting law enforcement conviction to a class C felony based on serious bodily injury because there is a reasonable possibility that the jury used the same evidence to support the substantial step element of his attempted murder conviction. Basеd on the prosecutor‘s arguments at trial and the lack of specificity in the charging information and jury instructions, we conclude that such a rea
Facts and Procedural History
We summarized the facts underlying Ziеman‘s convictions in a memorandum decision on direct appeal as follows:
Zieman and his wife, Nicole Zieman (“Nicole“), had been experiencing marital difficulties, and Nicole decided to seek a divorce. On December 4, 2008, one of Nicole‘s relatives contacted the Schererville Police Department and requested that police escort Nicole from her home. Nicole declined the offer because she wished to pack her belongings before leaving, and asked the police to return the next day.
That day, December 5, 2008, Nicole informed Zieman that she was leaving. The two argued, and Nicole called her mother, who called the Schererville Police Department. Zieman also called the police, informed them that nothing was wrong, and eventually left the home, got into his white Chevrolet S-10 pickup truck, and drove away.
In response to the phone calls and their prior visit to the Zieman home, several police officers drove to the home to ensure Nicole‘s welfare. Other officers were alerted that Zieman had driven away from the home. One of these officers, Adam Biella (“Officer Biella“) saw Zieman‘s truck and followed him for a brief period until dispatch informed him that Zieman‘s driver‘s license had been suspended. Another officer, Timothy Mele (“Officer Mele“), had dealt with Ziеman before and informed Officer Biella that Zieman was likely “in the process of fighting or fleeing.”
Officer Biella initiated a traffic stop. Zieman pulled over, but then sped away as Officer Biella was walking from his patrol car to Zieman‘s truck. Officer Biella got back into his patrol car and gave chase, radioing to dispatch that Zieman appeared to be driving back toward his home.
Officer Biella was later joined in his pursuit by Officer Mele and Corporal Marcus Handley (“Corporal Handley“). The three pursued Zieman through Schererville with lights and sirens activated. At various points in the pursuit, Zieman was driving very rapidly, without using turn signals or stopping at stop lights. During portions of the pursuit, Zieman aрpeared to be reaching underneath the seat of his car, and at other times appeared to be holding an object against his neck. It was later determined that Zieman had been stabbing his legs and chest and had cut his own neck in an attempt to kill himself.
The officers continued to follow Zieman, but once Zieman‘s driving posed a danger not only to the public but also to himself, Corporal Handley terminated the pursuit. The officers turned off their lights and sirens, ceased their pursuit, and headed to other calls. Other Schererville officers continued to follow Zieman outside of Schererville‘s jurisdiction and into Crown Point, though they did not actively pursue him. Once active pursuit ceasеd, Zieman reduced his speed, though his driving remained somewhat erratic, including rolling stops rather than complete stops at stop signs.
Zieman eventually crossed from Schererville to Merrillville and then into
Crown Point. Deputy Joseph Kraus (“Deputy Kraus“), of the Lake County Sheriff‘s Office, had heard about the Schererville pursuit, saw Zieman‘s truck, and initiated a second pursuit. He was eventually joined by Officer Airren Nylen of the Crown Point Police Department and Trooper Roa of the Indiana State Police. The three officers pursued Zieman through portions of Crown Point, with Zieman reaching speeds of more than seventy-five miles per hour and swerving through heavy daytime traffic, all the while cоntinuing to accelerate his truck. Also apprised of the pursuits over police radio was Crown Point Sergeant John Allendorf, Jr. (“Sergeant Allendorf“). Though close to the end of his work day, Sergeant Allendorf was close to the area of the pursuit in Crown Point—near the intersection of 93rd Avenue and Broadway Avenue—and set out to assist Deputy Kraus, Officer Nylen, and Trooper Roa. Entering the intersection of 93rd Avenue and Broadway Avenue, Sergeant Allendorf observed Zieman‘s truck with police cars in pursuit, with Zieman headed east in the southernmost of two west-bound lanes on 93rd Avenue and the police cars following in the east-bound lanes. Sergeant Allendorf maneuvered his car into thе northernmost of the west-bound lanes, leaving sufficient space on the road for Zieman to drive past the patrol car without a collision. Zieman, however, drove his truck into the northernmost lane and steered the vehicle directly at Sergeant Allendorf‘s car.
Sergeant Allendorf attempted to avoid a collision with Zieman by gunning his engine and jumping the curb with two tires, but had no chance of escape. Travelling at least sixty-eight miles per hour, Zieman slammed his truck into the front driver‘s side of Sergeant Allendorf‘s slow-moving patrol car, at or just in front of the driver‘s door. The force of the collision rammed Sergeant Allendorf‘s car completely over the curb, pinning Sergeant Allendorf inside the patrol car and severely injuring him. Zieman‘s truck was sent airborne down 93rd Avenue toward Broadway Avenue, eventually landing upside down with flames briefly alight on the vehicle‘s undercarriage.
Both Zieman and Sergeant Allendorf were extracted from their cars and were rushed to separate emergency rooms. Sergeant Allendorf suffered from an open fracture of his femur; bruised kidney, liver, and lung; and numerous broken ribs, and was required to undergo two surgeries and extensive physical therapy from shortly after the crash until January 2010.
Zieman v. State, No. 45A03-1005-CR-230, slip op. at 2-3, 949 N.E.2d 888 (Ind. Ct. App. June 3, 2011) (footnote and citation omitted).
The State charged Zieman with attempted murder, class B felony aggravated battery, two counts of class C felony battery, class C fеlony resisting law enforcement resulting in serious bodily injury, class D felony criminal recklessness, class A misdemeanor criminal recklessness, and class B misdemeanor reckless driving. A jury found Zieman guilty but mentally ill on all charges except the last, on which it found Zieman guilty. The trial court entered judgment of conviction only for attempted murder, class C felony resisting law enforcement resulting in serious bodily injury, and class A misdemeanor criminal recklessness. The trial court sentenced Zieman to thirty years for attempted murder, four years for resisting law enforcement, and one year for criminal recklessness, to be served consecutively for an aggregate sentence of thirty-five years.
In an amended PCR petition, Zieman, by counsel, claimed that his trial and appellate counsel provided ineffective assistance because neither challenged his attempted murder conviction and the serious bodily injury element that elevated his resisting law enforcement conviction on double jeopardy grounds. Following an evidentiary hearing, the PC court issued its findings of fact and conclusions of law denying Zieman relief, which provides in relevant part,
In Zieman‘s case, the charging information for attempted murder doеs not allege what conduct of Zieman constituted the substantial step toward commission of the crime of murder. Therefore, the statutory elements of the charging informations do not allege the same act to establish both the attempted murder ... and resisting law enforcement causing serious bodily injury.... Zieman argues however, that the actual evidence used to establish the offenses was the same. He points out that the State presented evidence and argued to the jury that Zieman‘s act of driving his car into Sergeant Allendorf‘s vehicle was the substantial step to establish his guilt for attempted murder ... and the act effecting serious bodily injury.... Zieman provides no citation to the record where the State made this argument, nor can we find it. The State presented evidence that Zieman turned his vehicle toward Sergeant Allendorf‘s and sped toward the squad car at speeds exceeding sixty-five miles per hour and accelerating up to eighty-six miles per hour. This act alone satisfies the substantial step element of attempted murder since the attempt to kill someone does not require a touching or an injury.
Appellant‘s Br. at 28-29 (citations omitted). Zieman appeals. Additional facts will be provided as necessary.
Discussion and Decision
This is an appeal from the denial of a PCR petition.
We observe that post-conviction proceedings do not grant a petitioner a “super-appeal” but are limited to thоse issues available under the Indiana Post-Conviction Rules. [
Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind.Ct.App.2010) (citations omitted), trans. denied.
Zieman contends that the post-conviction court erred in finding that his trial counsel did not provide ineffective assistance. To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel‘s performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), cert. denied (2001). Counsel‘s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional nоrms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). Prejudice results where there is “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceedings would have been different.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Perez v. State, 748 N.E.2d 853, 854 (Ind.2001). “Failure to satisfy either prong will cause the claim to fail.” French, 778 N.E.2d at 824. Thus, if the petitioner cannot establish prejudice, we need not evaluate counsel‘s performance. Bryant v. State, 959 N.E.2d 315, 319 (Ind.Ct.App.2011).
Zieman asserts that trial counsel was ineffective because he failed to argue that the attempted murder conviction and the serious bodily injury enhancement of the resisting law enforcement conviction violate the constitutional prohibition against double jeopardy.
[T]wo or more offenses are the “same offense” in violation of
Article I, Section 14 of the Indiana Constitution , if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Both of these considerations, the statutory elements test and the actual evidence test, are components of the double jeopardy “same offense” аnalysis under the Indiana Constitution.
Richardson v. State, 717 N.E.2d 32, 49-50 (Ind.1999) (footnote omitted).
Here, a comparison of the statutory elements of attempted murder and resisting law enforcement resulting in serious bodily injury does not yield a double jeopardy violation. A person commits murder when he “knowingly or intentionally kills another human being.”
Zieman argues that his convictions violate the Richardson actual evidence test. Under the actual evidence test,
the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder tо establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.
Richardson, 717 N.E.2d at 53. “Application of this test requires the court to ‘identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury‘s perspective....‘” Lee v. State, 892 N.E.2d 1231, 1234 (Ind.2008) (quoting Spivey v. State, 761 N.E.2d 831, 832 (Ind.2002)); see also Estrada v. State, 969 N.E.2d 1032, 1044 (Ind.Ct.App.2012), trans. denied. “In determining the facts used by the fact-finder to establish the elements of each offense, it is appropriate to consider the charging information, jury instructions, and arguments of counsel.” Id.; see also Jones v. State, 976 N.E.2d 1271, 1276 (Ind.Ct.App.2012), trans. denied (2013).
Specifically, Zieman contends that there is a reasonable possibility that the jury used the same facts to establish both the substantial stеp element of his attempted murder conviction and the serious bodily injury element of his class C felony resisting law enforcement conviction. However, “under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.” Spivey, 761 N.E.2d at 833 (emphases added); but cf. Alexander v. State, 772 N.E.2d 476, 478 (Ind.Ct.App.2002), trans. denied (reasoning that under Richardson/Spivey actual evidence test, dual convictions are barred if evidentiary facts establishing one or more elements of either challenged offense also establish all elements of the other сhallenged offense), opinion on reh‘g; Calvert v. State, 930 N.E.2d 633, 642 (Ind.Ct.App.2010) (discussing Alexander in light of common law categories of double jeopardy). Zieman does not argue that the facts establishing all the elements of attempted murder establish all the elements of resisting law enforcement resulting in serious bodily injury. In fact, the evidence showed that when Zieman drove into Crown Point, Deputy Kraus initiated a second pursuit and he was joined by Officer Nylen and Trooper Roa. Zieman was already in the process of fleeing Trooper Roa before Sergeant Allendorf entered the intersection of 93rd and Broadway Avenue. This fact supports fleeing from Trooper Roa that is unconnected with what occurred latеr involving the attempted murder of Sergeant Allendorf. Accordingly, we conclude that there is no violation of the Richardson actual evidence test.
However, “[i]n addition to the instances covered by Richardson, ‘we have long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson.‘” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002) (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind.2002)); see also Sanjari v. State, 961 N.E.2d 1005, 1007 (Ind.2012) (“Often discussed under the general rubric of
Applying this common law principle to Zieman‘s case means that if we determine that he was convicted and punished for the enhancement of resisting law enforcement based on the same behavior or harm that forms the basis of his attempted murder conviction, then double jeopardy principles are violated. Indiana courts have not explicitly set forth the standard to be applied in making this determination. However, in related cases, this court has considered whether there was a reasonable possibility that the fact-finder used the same harm to elevate two convictions.1 Boss v. State, 964 N.E.2d 931, 938 (Ind.Ct.App.2012) (“From the evidence presented, we find that Boss has demonstrated a reasonable possibility that the evidentiary facts used by the trier-of-fact to elevate her convictions for harboring non-immunized dogs also were used to enhance her convictions for failure to restrain a dog.“); Smith v. State, 872 N.E.2d 169, 177 (Ind.Ct.App.2007) (“Smith has demonstrated a reasonable possibility that the same bodily injury was used to enhance both his burglary and robbery convictions.“), trans. denied; Sallee v. State, 777 N.E.2d 1204, 1213 (Ind.Ct.App.2002) (“Sallee has failed to demonstrate a reasonable possibility that the evidentiary facts used by the jury to establish the element enhancing rape to a Class A felony were also used to establish the element enhancing criminal deviate conduct to a Class A felony.“), trans. denied (2003); but cf. Vandergriff v. State, 812 N.E.2d 1084, 1089 (Ind. Ct.App.2004) (stating that
We begin our analysis with a comparison of the charging informations. The charging information for attempted murder reads, “TIMMY TODD ZIEMAN while acting with the intent to kill did intentionally attempt to kill OFFICER JOHN H. ALLENDORF JR.” Appellant‘s App. at 77. The information does not allege the specific conduct that constituted the substantial step toward commission of the offense. The charging information for resisting law enforcement reads,
TIMMY TODD ZIEMAN did knowingly or intentionally flee from JOSUE ROA, a law enforcement officer, while JOSUE ROA was lawfully engaged in the execution of his duties as a law enforcement officer, and after JOSUE ROA had identified himself by visible or audible means, and ordered TIMMY TODD ZIEMAN to stoр, and while committing this offense, TIMMY TODD ZIEMAN did operate a motor vehicle in a manner that caused serious bodily injury to officer JOHN H. ALLENDORF JR.
Id. at 78.
The evidence establishing that Zieman turned his vehicle toward Sergeant Allendorf and sped toward him could support the substantial step in killing Sergeant Allendorf if that had been charged and/or argued to the jury. As noted above, however, that conduct was not set forth in the charging information for attempted murder. In addition, the jury instruction on attempted murder was as nonspecific regarding the substantial step element as the charging information. It required the jury to find that Zieman, acting with the specific intent to kill Sergeant Allendorf, “did intentionally attempt to kill” Sergeant Allendorf on or about December 5, 2008. Id. at 182.
As for arguments of counsel, our review of the record reveals that Zieman crashing his vehicle into Sergeant Allendorf‘s vehicle was consistently linked with the at
His other knowing or intentional acts....
He turns his vehicle into Sergeant Allendorf‘s squad car.... He wanted to kill himself and take Sergeant Allendorf with him.
Taking a look at the reconstruction, that corroborates what the State has been saying. Looking at the point of impact, there are no skid marks and there no yaw marks going into the point of imрact, which means the defendant wasn‘t slowing down. He wasn‘t out of control. He wasn‘t doing anything to avoid Sergeant Allendorf. He wanted to kill himself and Sergeant Allendorf. That‘s what he wanted to do that day.
Id. at 197-99 (emphases added).
Further the prosecutor‘s remarks regarding the resisting law enforcement charge and the attempted murder charge both mention Zieman crossing over the median and crashing into Sergeant Allendorf:
Resisting Law Enforcement. That on December 5th, in a nutshell, the defendant fled from Trooper Roa. And that while fleeing from Trooper Roa, he caused serious bodily injury to Sergeant Allendorf.
The defendant again was driving his vehicle. Trooper Roa testified that he was in his fully marked squad car on duty at the time. He activated his lights and sirens. And how did he know his lights and sirens were working? Because people were responding to it. People were moving over and getting out of his way.
The defendant doesn‘t stop. The defendant crosses over into oncoming traffic. And the defendant crashes into Sergeant Allendorf causing him serious injury. All the facts lead to Resisting Law Enforcement, guilty.
Id. at 195-96 (emphasis added).
For the Attempted Murder. That Timmy Todd Zieman while aching [sic] with the intent to kill did intentionally attempt to kill Sergeant Allendorf.
Again the defendant wanted to die. He stabbed himself. And when that wasn‘t working quick enough, he realized he is in a vehicle. He can end this all. And he wants to take an officer with him. He sees Sergeant Allendorf on Broadway making that turn. He decides to switch over. And whether it was going to be in the lane closest to the median or in the lane closest to the sidewalk, he was going to hit that car.
He fled from the officers. Crossed into oncoming traffic. He turned into Sergeant Allendorf. The reconstruction bears out that version. The civilian corroborate that version. All the facts lead to Attempted Murder, guilty.
Id. at 202-03 (emphases added). Finally, the prosecutor told the jury,
And the State has given you information that he acted with the high probability that as he is bearing down 93rd Avenue, switching over from the eastbound into the westbound lane, it was his conscious objective to do so. And the high probability that someone is going to get killed or hurt is definitely there when he slammed into the car of [sic] excess of 80 miles an hour.