Allen v. State

• Decision Date: 29 June 2001
• Docket Number: No. 49S00-9804-PD-249.,49S00-9804-PD-249.
• Parties: Howard ALLEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

749 N.E.2d 1158

Howard ALLEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S00-9804-PD-249.

Supreme Court of Indiana.

June 29, 2001.

Susan K. Carpenter, Public Defender of Indiana, Joanna Green, Deputy Public Defender, Kathleen Cleary, Deputy Public Defender, Danielle Gregory, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

SULLIVAN, Justice.

Petitioner Howard Allen appeals the denial of post-conviction relief from his conviction for murder and sentence of death. We affirm the denial of post-conviction relief for the reasons set forth in this decision.

Background

Our earlier opinion in this matter describes in detail the crimes of which Allen was convicted. See Allen v. State, 686 N.E.2d 760, 766 (Ind.1997)

. In brief, Allen murdered 74-year-old Ernestine Griffin in her Indianapolis home. Police determined that Griffin had been killed by a combination of a knife wound to her chest and a blow to her head. On a kitchen counter, police found a piece of paper with Allen's name and phone number on it. A neighbor of Griffin's informed police that Allen had inquired with Griffin about a car that the neighbor had for sale. Police later discovered Griffin's camera at the carwash where Allen worked. After extensive questioning, Allen admitted to the police that he had struck Griffin, but denied killing her.

Allen was charged with Murder,¹ Felony Murder,² and Robbery.³ A jury convicted Allen on all three charges and recommended a sentence of death. The trial court sentenced Allen to death on August 30, 1988.

We upheld Allen's conviction and death sentence on direct appeal. Allen v. State, 686 N.E.2d 760 (Ind.1997). We addressed numerous issues in our opinion, including the validity of Allen's waiver of his Miranda rights, the admissibility of certain evidence, and the effectiveness of trial counsel. He also challenged the delay of his appeal that resulted from the trial court's failure to appoint appellate counsel, the court reporter's failure to prepare a record, and the inadequate briefing of his initial appellate counsel, who was subsequently replaced and disciplined. Allen, 686 N.E.2d at 784. We rejected these claims and affirmed.

Allen subsequently sought to have his convictions and sentence set aside by filing a petition for post-conviction relief as permitted by Indiana Post-Conviction Rule 1. The post-conviction court conducted extensive proceedings on his claims for relief but ultimately denied them. Allen now appeals from this denial of post-conviction relief.

Discussion

For the most part, completion of Indiana's direct appellate process closes the door to a criminal defendant's claims of error in conviction or sentencing. However, our law allows defendants to raise a narrow set of claims through a petition for post-conviction relief. See Ind. Post-Conviction Rule 1(1). The scope of the relief provided for in these procedures is limited to "issues that were not known at the time of the original trial or that were not available on direct appeal." Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000). Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata. See Williams v. State, 724 N.E.2d 1070, 1076 (Ind.2000),

cert. denied, ___ U.S. ___, 121 S.Ct. 886, 148 L.Ed.2d 793 (2001).

A court that hears a post-conviction claim must make findings of fact and conclusions of law on all issues presented in the petition. See Ind. Post-Conviction Rule 1(6). The findings must be supported by facts and the conclusions must be supported by the law. See Bivins v. State, 735 N.E.2d 1116, 1121 (Ind.2000),

reh'g denied. Our review on appeal is limited to these findings and conclusions.

We apply a deferential standard of review when examining these findings and conclusions. See Williams, 724 N.E.2d at 1076

("Post-conviction procedures do not afford the defendant with a `super-appeal.'"). Because the petitioner bears the burden of proof in the post-conviction court, see Ind. Post-Conviction Rule 1(5), an unsuccessful petitioner appeals from a negative judgment. A petitioner appealing from a negative judgment must show that the evidence as a whole "leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court." Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993),

reh'g denied. This means that "[we] will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion." Miller v. State, 702 N.E.2d 1053, 1058 (Ind.1998),

cert. denied, 528 U.S. 1083, 120 S.Ct. 806, 145 L.Ed.2d 679 (2000).

I

Allen first contends that his conviction and sentence must be vacated because a juror failed to reveal her criminal record when asked to do so on juror questionnaires. Specifically, a routine questionnaire asked potential jurors if they had "ever been accused of a crime." One woman, who was eventually seated as a juror at Allen's 1988 trial, responded to this question with a simple "no." On the day jury selection began, she completed another questionnaire in which she certified that she had never appeared in court. Despite these answers, the post-conviction record shows that the juror had had several brushes with the law, including: (1) a May, 1982, arrest for operating a vehicle under the influence of alcohol; (2) a September, 1976, arrest for public intoxication; and (3) a January, 1961, arrest for operating a vehicle under the influence of alcohol, of which she was found guilty.⁴

We have held that juror misconduct⁵ will warrant a new trial only when the misconduct is both "gross" and "harmed the defendant." Lopez v. State, 527 N.E.2d 1119, 1130 (Ind.1988). See also Hoskins v. State, 737 N.E.2d 383, 385 (Ind.2000)

("To warrant a new trial upon a claim of juror misconduct, the defendant must show that the misconduct was gross and probably harmed the defendant."). The post-conviction court determined that Allen was not harmed by the juror's conduct.

First, the post-conviction court made findings of fact to the effect that "[t]rial counsel ... would not have necessar[il]y excluded [this juror] had he know[n] about her convictions, but since the convictions were related to alcohol use he would have asked additional voir dire questions relating to her behavior. [Counsel] did not find the facts of the convictions to be troubling." Appellant's Appendix at 18.

There is evidence in the post-conviction record to support the post-conviction court's findings of fact. Allen's trial counsel testified at a deposition that he would not have sought to exclude the juror solely on the basis of the prior arrests even if she had disclosed them on the questionnaires. However, trial counsel testified that had he known of the prior offenses, he would have questioned the juror as to whether "it had been something of a recent nature and also kind of look to see if there's more than one... or tried to figure out whether or not there was a pattern, whether or not I was dealing with a drunk." (R.P-C.R. at 2362, Petitioner's Exhibit 45 at 28-29.) He emphasized that "quite simply, if she had been arrested in some proximity to this in this succession of one or two or three or something of that nature ... that would tell me ... this person's got a problem and even getting arrested isn't remedying it." (Id.) On redirect, counsel again testified that he "would have explored ... [the juror's] pattern of conduct, [and] the proximity of time is obviously one of th[ose] things." (Id. at 113.)

From its findings, the post-conviction court concluded that Allen suffered no harm because his trial counsel would not have moved to exclude the juror even if he knew about the juror's misstatements. Specifically, the post-conviction court concluded that "Allen's evidence falls short to show that his trial counsel would have removed [the juror] from the jury panel had he known of the convictions. Trial counsel wavered as to whether that juror would have been excluded or not. Allen has not shown any prejudice from the juror misconduct...." Appellant's Appendix at 18 (emphasis in original).

Having found evidence to support the post-conviction court's findings of fact, we will upset its conclusions of law only if "the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion." Miller, 702 N.E.2d at 1058.

The post-conviction court's conclusion that Allen suffered no harm is supported by its findings. Allen's trial counsel testified that the juror's previous arrests alone would not have led him to seek her dismissal from the panel. He testified that he would have asked follow-up questions in order to determine whether the juror had a problem with alcohol that would prevent her from functioning as a juror. However, the post-conviction court could conclude that even these follow-up questions would not have led counsel to attempt to exclude the juror. The four offenses were scattered over 27 years.⁶ The post-conviction court could properly conclude that these arrests were too infrequent to suggest the type of "pattern" of alcohol-related misconduct that would have led trial counsel to seek the juror's exclusion. It is also plausible that the post-conviction court inferred that because the juror herself had been a defendant in a criminal proceeding, she might have had more empathy for Allen than would a potential juror who had never been arrested or tried. That is, the post-conviction court could infer from the record she was the type of juror that the State—and not Allen—would strike from the jury panel.⁷

II

Allen contends that he is entitled to a new trial or,...