Azania v. State

• Decision Date: 06 June 2000
• Docket Number: No. 02S00-8808-PC-751.,02S00-8808-PC-751.
• Citation: 730 N.E.2d 646
• Parties: Zolo Agona AZANIA, f/k/a Rufus Lee Averhart, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

730 N.E.2d 646

Zolo Agona AZANIA, f/k/a Rufus Lee Averhart, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 02S00-8808-PC-751.

Supreme Court of Indiana.

June 6, 2000.

Rehearing Denied August 3, 2000.

Kevin L. Likes, Likes and Kraus, Auburn, Indiana, Michelle Fennessy Kraus, Schenkel, Tirpak & Kowalczyk Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellee.

DICKSON, Justice

The defendant-appellant, Zolo Agona Azania, formerly known as Rufus Lee Averhart, and two co-defendants were convicted of murder¹ and felony murder² for killing Gary police officer George Yaros during a robbery of the Gary National Bank on August 11, 1981. The jury recommended a death sentence. Treating the two convictions as a single offense, the trial court sentenced the defendant to death. On direct appeal, this Court affirmed the defendant's sentence. Averhart v. State, 470 N.E.2d 666 (Ind.1984). In 1993, on appeal from the denial of post-conviction relief, we reversed based on the ineffective assistance of trial counsel in the penalty phase and the failure of the prosecution to provide gunshot residue test results to the defense. We remanded for either the imposition of sentence for a term of years or a new penalty phase trial and sentencing proceeding. Averhart v. State, 614 N.E.2d 924 (Ind.1993).

On remand, a jury again recommended death, and the trial court entered judgment ordering the death sentence. Upon receipt of the defendant's appeal, this Court remanded and directed the trial court to enter an amended sentencing order. Following trial court's entry of the revised order, the defendant submitted his supplemental brief. This appeal now presents the following issues: (1) denial of the defendant's motion to dismiss; (2) admission of character evidence; (3) presentation of false testimony at the guilt phase trial; (4) adequacy of the sentencing order; (5) refusal to admit the State's closing argument as substantive evidence; (6) communications between the bailiff and the jury; and (7) non-disclosure of exculpatory evidence.

Motion to Dismiss

The defendant contends that the trial court erred in summarily denying his motion to dismiss the death penalty proceeding on grounds of procedural irregularity. The defendant was initially charged by information, but the prosecutor dismissed the information and filed an indictment after the grand jury subsequently returned an indictment including two counts with identical substantive allegations as the information, plus two counts seeking the death penalty. On February 12, 1982, the defendant moved to dismiss the indictment alleging defective grand jury proceedings by reason of certain evidence presented. Averhart, 470 N.E.2d at 677. The motion was denied, and the issue was raised and addressed in the defendant's first direct appeal. Id. at 677-79. After we remanded the case for a new penalty phase and sentence determination, the defendant filed another motion to dismiss challenging the indictment upon which the first penalty phase and sentencing proceedings had been based. In the present appeal, the defendant challenges the denial of this second motion to dismiss that was filed after the conclusion of the first direct appeal and after his appeal from the denial of post-conviction relief.

In the second motion to dismiss, and now in this appeal, the defendant argues that the grand jury lacked the power to initiate the death penalty proceedings by indictment. He contends that a grand jury may only indict for "an offense" and that the death penalty is not "an offense." He claims that the indictment was thus a nullity and that his motion to dismiss the indictment should have been granted. The defendant did not challenge the legal authority of the grand jury to commence the death penalty proceedings in his original trial, his first direct appeal, his petition for post-conviction relief, or his appeal from the denial of post-conviction relief.

Upon motion of the defendant, a court may dismiss an indictment based upon one of several enumerated grounds or "any other ground that is a basis for dismissal as a matter of law." IND.CODE § 35-34-1-4(a)(11). A motion under subdivision (a)(11) may be made at any time before or during trial, IND.CODE § 35-34-1-4(b)(2). Upon a motion to dismiss, a defendant should raise every ground upon which he intends to challenge an indictment, IND.CODE § 35-34-1-4(c); however, "in the interest of justice and for good cause shown," the court may entertain and dispose of such a motion on the merits, IND.CODE § 35-34-1-4(c). Although this was a second motion to dismiss the indictment, it was filed before the retrial after remand from this Court. Because of the unique procedural posture of this capital sentencing proceeding, we find that the interest of justice and good cause requirements are satisfied and address the defendant's motion on the merits.

The indictment issued by the grand jury was denominated in four counts. Count I charged the offense of murder. Count II charged the offense of felony murder. Count III sought a death sentence and alleged the aggravating circumstance of intentional killing while committing or attempting to commit robbery. Count IV sought a death sentence and alleged the aggravating circumstance that the victim was a law enforcement officer acting in the course of his duty.

To support his argument that his death penalty is based on an invalid indictment, the defendant cites Owens v. State, 659 N.E.2d 466 (Ind.1995), in which we observed: "Without deciding the question, we express here our doubt that the State has the authority to seek an indictment for a `violation' of Indiana Code § 35-50-2-9, our death penalty statute." Id. at 472. Our concern in Owens arose from statutory language authorizing grand juries to deliberate and to issue an indictment alleging the commission of criminal offenses. In Owens, the grand jury was not asked to consider whether to issue an indictment charging a criminal offense. Rather, the prosecutor only presented to the grand jury the issue of whether to seek the death penalty in the pending case. In the present case, however, the grand jury issued an indictment charging two criminal offenses as well as issuing a request for the death penalty. The additional pages identified as counts III and IV of the indictment complied with the established statutory procedure.³ Although each of the four counts was drafted on preprinted grand jury forms with preliminary language containing the word "indictment," we decline to elevate form over substance. The four counts comprised a single indictment, with counts I and II each charging a criminal offense and with counts III and IV separately presenting grounds for seeking the death penalty.

In addition, as pointed out by the State, the defendant's assertion that statutory language authorizing an indictment for an "offense" precludes a grand jury from seeking the death penalty by indictment would likewise preclude the State from seeking the death penalty by information. Applicable statutory provisions provide: "Any crime may be charged by indictment or information";⁴ "The indictment or information shall be in writing and allege the commission of an offense . . . .";⁵ and "The indictment or information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged."⁶ The State was authorized to institute this criminal prosecution by filing an information or indictment. IND.CODE § 35-34-1-1. Our legislature could not have created a capital sentencing procedure and yet prohibited the commencement of such proceedings.

We reject the defendant's claim that the grand jury's commencement of death penalty proceedings in this case was invalid and a nullity.

Admission of Character Evidence

The defendant contends that a pretrial ruling by the trial court denied him his right to a fair trial. He argues that the ruling restricted him "from presenting his mitigation evidence in front of the jury for fear of the State's rebuttal evidence." Amended Brief of Appellant at 27. Before the penalty phase retrial began, the defendant filed a motion pursuant to Indiana Evidence Rule 404 seeking disclosure of the nature of evidence of crimes, wrongs, or acts that the State planned to present.⁷ In its ruling on the motion, the trial court stated: "If the defendant raises character as an issue in his case in chief, the State will be allowed to present relevant character evidence in rebuttal. It is the court's opinion that discussing the defendant's family history and background places the defendant's character in issue." Record at 1047. Following this ruling, the defendant filed a motion in limine seeking to prevent the State from disclousing information regarding the defendant's alleged involvement in the killing of a man named Wick.⁸ In making its ruling, the trial court characterized its former ruling as prohibiting the State from presenting such evidence in its case in chief and then explained: "We are not talking about guilt or innocence here. We are talking about the balance between the aggravating and the mitigating circumstances, and I think that that is an appropriate line of inquiry for the State to do." Record at 2685.

During the penalty phase retrial, the State did not attempt to present character evidence in its case in chief or on rebuttal, nor did the defendant, who only presented mitigation witnesses who testified regarding the firearms used in the robbery and the injuries suffered by Officer Yaros, bolstering the defendant's argument that any one of the defendant's accomplices might have fired the fatal shot.

After the jury was charged and began deliberations, the trial court permitted the defendant to make a record showing the mitigation evidence he would have presented...