Garrett v. State, 49S04–1207–PC–431.

Citation992 N.E.2d 710
Decision Date28 August 2013
Docket NumberNo. 49S04–1207–PC–431.,49S04–1207–PC–431.
PartiesJuan M. GARRETT, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Stephen T. Owens, Public Defender of Indiana, Randy A. Elliott, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A04–1107–PC–410

RUCKER, Justice.

We hold that the “actual evidence” test announced in Richardson v. State, 717 N.E.2d 32 (Ind.1999) is applicable to cases in which there has been an acquittal on one charge and retrial on another charge after a hung jury. We conclude however that the post-conviction court properly denied the petitioner's claim that counsel rendered ineffective assistance in failing to pursue this issue at trial or on direct appeal.

Facts and Procedural History
Factual Background

This case arises out of an abduction and sexual assault and resulted in two successive trials. The underlying facts are recited in the Court of Appeals memorandum decision on direct appeal as follows:

Early in the morning of June 9, 2007, A.W. reported to the police that three men forced her into a van, took her to an apartment, and forced her to submit to multiple acts of oral sex and vaginal intercourse. One of the perpetrators gave her a piece of paper with the name “Juan” and a phone number written on it. He told her “to call him again if [she] wanted to have a good time again.” A.W. showed an officer the location of the apartment where she had been raped.

Police discovered the phone number and apartment belonged to Garrett. On June 25, 2007, Garrett went to the Sex Crimes Office and was interviewed by Detective Linda White and Sergeant Craig McCartt. Detective White gave Garrett Miranda warnings, which Garrett said he understood. She then read him an advice of rights form, which he said he understood and signed.

Garrett told the officers he had called off work on the evening of June 8 because he was sick, but he then went to the Embassy Suites for off-track betting. He claimed he returned home around 9:00 and went straight to bed. He denied that anyone was at his apartment that evening. When confronted with the note, Garrett said, “I meet a lot of people on the bus downtown. I have no idea from there.” Detective White asked Garrett if he would give a buccal swab, but Garrett refused.

Garrett's DNA was later obtained by court order, and his DNA matched a sample from A.W.'s rape examination. Detective White showed A.W. a photographic array, and A.W. identified Garrett as one of the perpetrators.

On June 27, 2007, Garrett was charged with Count 1, Class A felony rape (alleging he raped A.W. while armed with a knife); Count 2, Class A felony rape (also alleging he raped A.W. while armed with a knife); Count 3, Class B felony criminal deviate conduct; Count 4, Class B felony criminal confinement (alleging he confined A.W. in an apartment while armed with a knife); and Count 5, Class C felony criminal confinement (alleging he forced A.W. into a vehicle).

Garrett v. State, No. 49A02–0807–CR–609, slip op. at 2–3, 2009 WL 485203, at *1 (Ind.Ct.App. Feb. 25, 2009) (citations and footnotes omitted), trans. denied.

First Trial

Garrett's case was first tried to a jury on April 14, 2008. In addition to the foregoing facts, following are additional facts of what occurred at the first trial. During the course of her testimony, A.W. testified that her clothes were forcefully removed and that all three men forced her to perform oral sex. When asked “what happened next” A.W. testified as follows:

A. The older one made me get up, and he bent me over the bed and stuck his penis in my vagina.

Q. Okay. And you said he bent you over the bed. He was behind you?

A. Yes.

Q. Okay. And he put his penis in your vagina?

A. Yes.

Tr. 1 at 51–52.1 A.W. further testified that after the man was done he told her to put her clothes back on and that she could leave. Id. at 56. However, one of the younger men prevented her from leaving, pushed her back over the couch and raped her. Id. at 56–57. Thereafter, according to A.W. “the older man made me have sex with him again.” Id. at 58. The following exchange then occurred:

Q. Okay. When you said the older man made you have sex with you [sic] again, where were you when that happened?

A. I was on the bed.

Q. Back where the first one happened?

A. Yes.

* * *

Q. Okay. After that happened, what did he say?

A. He told me I could put my clothes back on and leave.

Q. And did you do it?

A. I put my clothes on and I got to the door. He wrote his phone number down and told me to call him if I wanted to have a good time again.

Id. at 58–59. When asked if she saw one of the men in the courtroom who raped her A.W. identified one of the spectators who appeared to have been exchanging hand signals with the defendant during the course of trial. See id. at 76–77. After a recess, A.W. identified Garrett as the older man who raped her. See id. at 80.

The jury returned verdicts of not guilty on Count 1 (Class A felony rape), Count 3 (Class B felony criminal deviate conduct), and Count 5 (Class C felony criminal confinement). The jury was unable to reach a verdict on Count 2 (Class A felony rape) and Count 4 (Class B felony confinement). The trial court discharged the jury, declared the jury deadlocked on Counts 2 and 4, and scheduled a pretrial hearing for the following week, April 23, 2008. The record is not altogether clear on what transpired at the pretrial hearing. In any event, retrial on Counts 2 and 4 was scheduled for June 5, 2008. Garrett waived his right to trial by jury, and the case proceeded to a bench trial.

Second Trial

Prior to commencement of retrial the following colloquy between the trial court and the deputy prosecutor occurred:

The Court: Okay. We're on the calendar for a Court trial. The trial is not scheduled to begin until 10:00 o'clock a.m. but [Deputy Prosecutor], you said you had some preliminary matter you wanted the Court to hear?

[Deputy Prosecutor]: I do, Your Honor. Just to clarify for the record before we get started and I call [A.W.] to testify in this matter. One of [sic] the Court's guidance with regard to the direct testimony she's going to be giving today, as the Court's aware, we tried this case to a jury on April 14th of 2008, the jury found Mr. Garrett not guilty on [Count] 1 ... and we are here to retry [Count] 2.... My question for the Court is with regard to [C]ounts 1 and 2 which are both rape as class A felonies. The jury found Mr. Garrett not guilty on one count and hung on the other.

The Court: Not guilty on one.

[Deputy Prosecutor]: And hung on the other.

The Court: And hung on 2.

[Deputy Prosecutor]: Right.

The Court: So what's your question?

[Deputy Prosecutor]: My question is, Your Honor—

The Court: What's the difference between 1 and 2?

[Deputy Prosecutor]: None. They're identical. Identical as charged and all of these incidents occurred one night. So I wanted the Court's guidance on which incident I should question about.

The Court: Whatever incident you alleged constituted [C]ount 2....

[Deputy Prosecutor]: That's correct.

Tr. 2 at 347–49. Retrial proceeded, and as its first witness the State called A.W. to the stand. A.W. testified that on the evening of June 8, 2007, she ended up in an apartment with three men she did not know. Id. at 358. One man was older, and two were younger. Id. at 358–59. After they entered the apartment, one of the men locked the door. Id. at 359. She did not want to be there and begged them to let her go because she had a sick child at home and needed to take care of him. Id. at 361. The men refused, and said they were “going to do things to” her, and she feared they were going to hurt or kill her. Id. The apartment was a one-room studio containing a bed and couch. Id. at 359. One of the men pushed her onto the couch, and the two younger men sat down beside her. Id. at 359–60. The older man sat down on the bed. The men started drinking and smoking marijuana. She did not want to drink, but they forced her to do so. Id. at 360. After awhile, the men pulled her clothes off. A.W. was forced onto the bed:

Q. How did you get over to the bed?

A. I was pulled over to the bed and pushed down on the bed.

Q. When you were pushed down on the bed, were you on your back or on your stomach?

A. I was on—I believe on my back.

* * *

Q. All right. When you were pushed down onto the mattress, what man were you with?

A. The older one.

Q. When the older man pushed you down on the mattress, what happened?

A. He stuck his penis inside of me and had sex with me.

Q. When you say he stuck his penis inside of you, what part of you?

A. In my vagina.

Tr. 2 at 363–64. A.W. asked him to stop, but he did not. While the older man was having sex with her, A.W. noticed a knife at the end of the bed. Id. at 364–65. When the older man finished, he told her she could get dressed and leave. Id. at 366. However, one of the younger men prevented her from leaving. Id. at 367. A.W. then testified that she was eventually allowed to leave “after he [the older man] put his penis in me again.” Id. As A.W. was leaving, the older man gave her his telephone number, and she also took the knife when he was not paying attention. Id. at 368. A.W. identified Garrett as the older man who had raped her. Id. at 377.

A.W. ran to a gas station down the street and called 911. A.W. gave the police the note and the knife and showed them where the apartment was located. She was then taken to a hospital for an examination. The nurse testified A.W. “was tearful, upset, she was cooperative with me, but very uncomfortable, having some pain, rated I believe a 9 out of 10.” Id. at 392. A.W.'s injuries included a chipped tooth, a hemorrhage in her eye, and bruises on...

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