Dowdell v. State
| Decision Date | 16 December 1999 |
| Docket Number | No. 49S00-9703-CR-224.,49S00-9703-CR-224. |
| Citation | 720 N.E.2d 1146 |
| Parties | Michael DOWDELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Hilary Bowe Oakes, Indianapolis, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. BOEHM, Justice.
Michael Dowdell was convicted of two counts of felony murder, one count of attempted murder, one count of robbery, and three counts of criminal confinement. He was sentenced to an aggregate term of 160 years imprisonment. After initiating his direct appeal, he sought and obtained leave to suspend the appeal and pursue postconviction relief in the trial court. Postconviction relief was denied by the trial court and Dowdell now raises four issues in this consolidated appeal: (1) the trial court's exclusion of witnesses, (2) ineffective assistance of counsel, (3) the giving of fundamentally erroneous jury instructions, and (4) the trial court's failure to articulate mitigating circumstances and use of improper aggravating circumstances in its sentencing statement. Because the postconviction court's findings are insufficient to allow appellate review, we remand this case to the postconviction court for additional findings. In the event the postconviction court denies relief, Dowdell is entitled to resentencing on this record.
Factual and Procedural Background
Kenneth Pack and Kimberly Renee Saxton had their first date on the evening of August 22, 1995. The two ate take-out food at Pack's house and then watched television. Pack's roommate, Lawrence Moore, was also at home but remained in his bedroom. At about 8:30 p.m., Pack heard a knock at the door and answered it. He saw Dowdell, whom he had known for nearly twenty years, on the front step. When Pack opened the door, another man stepped out from behind Dowdell and put a gun to Pack's head. The armed stranger led Pack to the kitchen where he then ordered him to call for whomever was in the house. Pack complied, and Moore and Saxton came to the kitchen. The stranger ordered Saxton to tie up Pack and Moore, which she did. The stranger then held the three at gunpoint while Dowdell ransacked the house. Dowdell later returned to the kitchen and spoke to the stranger who responded by asking where the money was and firing a bullet into the ceiling. Pack told the robbers that he had $200 tucked under a sofa cushion. Dowdell returned and, according to Pack's testimony, "whispered something to [the stranger] and then the [stranger] just starting shooting." Saxton and Moore both died of the gunshot wounds. Pack survived.
Dowdell was arrested and charged with two counts of felony murder, one count of attempted murder, one count of robbery, and three counts of criminal confinement. The State's primary witness at trial was Pack. In addition, the State called Anthony Ross who testified that, while he was waiting in a holding cell to appear in court in August of 1995, Dowdell told him that he and another man had gone to Pack's house and shot the people inside because Dowdell and a friend "had got beat out [of] some drugs." A jury found Dowdell guilty on all counts and the trial court sentenced him to an aggregate term of 160 years imprisonment. Dowdell initiated a direct appeal of his convictions but then sought leave to pursue postconviction relief in the trial court. Leave was granted, and Dowdell filed a petition for postconviction relief in the trial court, which was denied. The direct appeal was then reinstated and consolidated with the appeal from the denial of postconviction relief.
A member of Dowdell's family hired Randall Cable to represent Dowdell. Cable entered his appearance on August 29, 1995. On March 1, 1996, Cable filed a motion for continuance that stated he was "still engaged in Discovery." On April 29, the State filed a motion to compel, requesting that Cable disclose the names of witnesses he intended to call at trial. The trial court granted the motion, ordered Cable to file a response within five days and further noted that the "sanction of exclusion of said evidence may be granted if this order is not complied with." Cable did not file a response but rather, on May 9, filed a "Motion for Continuance and Extension of Time to File Discovery Response." The motion asserted that Cable had "experienced difficulty in getting his client and family to supply requested discovery information sought by the State," but stated that he had received a call the previous afternoon from Dowdell's brother giving him "four names with addresses and six names without other identifiers." The trial was continued to July 8. Cable filed another motion for a continuance on July 5. This motion asserted that counsel had met with Dowdell's brother on June 28 and that Dowdell's brother was to return with additional information. According to the motion, the State agreed to a continuance of the trial to August 5 and to an extension to comply with discovery until July 17. The trial court granted the motion.
On August 5, the morning of trial, Cable filed a list of witnesses containing ten names, four of which had addresses. The trial court refused to permit the addition of these witnesses, observing that the list was filed the morning of trial and therefore did not comply with the court's discovery rules and also violated the order to compel. Dowdell was not permitted to call the belatedly listed witnesses and did not testify himself. The jury was unable to reach a verdict and a mistrial was declared. The case was scheduled for trial three weeks later but was then continued to October 21. Cable filed no written motion asking the trial court to reconsider the exclusion of witnesses but did orally request that the trial court reconsider the exclusion on the morning of the second trial. The oral motion was denied. Dowdell contends that the trial court's ruling on the exclusion of witnesses was error and that Cable rendered ineffective assistance by not filing a witness list sooner or seeking reconsideration of the denial.
Dowdell has waived any error in the exclusion of witnesses. It is well settled that an offer of proof is required to preserve an error in the exclusion of a witness' testimony. See Herrera v. State, 679 N.E.2d 1322, 1325 (Ind.1997) (citing Wiseheart v. State, 491 N.E.2d 985, 991 (Ind.1986)). An offer of proof allows the trial and appellate courts to determine the admissibility of the testimony and the potential for prejudice if it is excluded. See id. Dowdell's failure to make an offer of proof waives any error in the exclusion of these witnesses.
To establish a violation of the Sixth Amendment right to effective assistance of counsel, Dowdell must show that (1) counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. More recently, the Supreme Court of the United States held that prejudice resulting from ineffective assistance is not established unless the error rendered the result of the proceeding fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
Dowdell's ineffective assistance claim was raised in his petition for postconviction relief. Dowdell bore the burden in the postconviction court of establishing the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Because he is now appealing from a negative judgment, to the extent his appeal turns on factual issues Dowdell must meet the higher standard of convincing this Court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court. Harrison v. State, 707 N.E.2d 767, 773 (Ind.1999), petition for cert. filed (U.S. Aug. 16, 1999) (No. 99-5793) (citing Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995)). We will disturb the decision only if the evidence is without conflict and leads only to a conclusion contrary to the result of the postconviction court. Id. at 774.
Dowdell testified at the postconviction hearing and also called Cable and four other witnesses. When asked if Dowdell ever provided him with names of witnesses that could verify his alibi, Cable responded that he did not recall. In response to other questions Cable stated that he "was not given a full list or a complete list of as to a list to ever timely file anything" and "didn't feel [he] had enough information to adequately [complete] the list." Cable testified that he "was somewhat cognizant" of the stringent discovery rules of the trial court. Nevertheless, he chose not to file a witness list based on his limited information. Finally, Cable testified that he did not recall what attempts were made to contact the witnesses whose names and/or addresses he was given. The postconviction court entered findings of fact and conclusions of law denying relief because Dowdell had not established his claim of ineffective assistance of counsel.
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