Azania v. State

• Decision Date: 02 November 2000
• Docket Number: No. 02S00-0009-SD-538.,02S00-0009-SD-538.
• Citation: 738 N.E.2d 248
• Parties: Zolo Agona AZANIA, f/k/a Rufus Lee Averhart, Petitioner, v. STATE of Indiana, Respondent.
• Court: Indiana Supreme Court

738 N.E.2d 248

Zolo Agona AZANIA, f/k/a Rufus Lee Averhart, Petitioner, v. STATE of Indiana, Respondent.

No. 02S00-0009-SD-538.

Supreme Court of Indiana.

November 2, 2000.

Publication Ordered November 8, 2000.

ORDER

Zolo Agona Azania f/k/a Rufus Averhart was convicted of murder and sentenced to death. That judgment was affirmed on direct appeal, Averhart v. State, 470 N.E.2d 666 (Ind.1984), but the death sentence was vacated in post-conviction proceedings in this Court and a new penalty phase proceeding was ordered. Averhart v. State, 614 N.E.2d 924 (Ind.1993). Azania was again sentenced to death at this retrial and that new sentence was affirmed in the direct appeal from the retrial. Azania v. State, 730 N.E.2d 646 (Ind.2000).

By counsel, Azania filed a "Petition for Leave to File Petition for Successive Post-Conviction Relief and Application for Stay of Execution Date," accompanied by the tender of a "Successive Petition for Post-Conviction Relief," alleging newly discovered evidence relevant to the guilt phase of his murder trial. This Court granted this petition on October 12, 2000.

In addition, Azania has tendered a "Notice of Filing Post-Conviction Petition in Superior Court and Application for Stay of Execution Date, or in the Alternative, Petition for Successive Post-conviction Relief and Application for Stay of Execution Date" ("Notice of Filing"). In response, the State has filed "State's Response to Petition for Leave to File Successive Petition for Post-Conviction Relief." Finally, Azania has filed "Petitioner's Reply to the State's Response to Petition for Post-Conviction Relief and for Leave to File Successive Petition for Post-Conviction Relief." This Order addresses these filings.

This Court's rules permit a person convicted of a crime in an Indiana court to attack that conviction collaterally through a post-conviction proceeding. Ind. Post-Conviction Rule 1. As noted above, Azania has previously availed himself of that procedure. The rules also authorize a procedure for seeking a second or successive collateral review of a conviction and sentence. P-C.R. 1 § 12. In the "Notice of Filing," Azania advises the Court that on September 14, 2000, a petition was filed in the trial court seeking post-conviction relief. The petition alleges generally that the attorneys who represented him during the retrial of the penalty phase proceedings and in the appeal therefrom did not provide him with the effective assistance of counsel to which he was entitled under the U.S. Constitution and raises additional claims concerning the retrial. Inasmuch as this petition sought successive post-conviction relief, it was procedurally improper to file the petition without authorization from this Court. P-C.R. 1 § 12. The Allen Superior Court is therefore directed to dismiss the "Petition for Post-Conviction Relief" that was filed on September 14, 2000.

Recognizing the procedural problem, Azania has asked in the alternative that this Court nevertheless authorize the filing of the successive petition seeking post-conviction relief from the judgment rendered at the retrial of the penalty phase proceeding and affirmed on appeal. He raises claims that he organizes into four categories. Indiana Post-Conviction Rule 1 § (12)(b) and (c) provide that a petition seeking successive post-conviction relief will be authorized unless "the pleadings conclusively show that the petitioner is entitled to no relief." The term "the pleadings" in this context includes the record, opinions, and other materials from the petitioner's prior appellate and post-conviction proceedings.

First, Azania claims that an error in the Allen County jury selection system denied him his U.S. constitutional rights to a fair trial, due process, and equal protection of the laws. His submission indicates that in September, 1996, Allen County officials disclosed that "an alleged `computer error' systematically eliminated almost 28% of the jury pool." He contends that this had the effect of excluding up to 70% of the eligible African-American jurors in the county from the jury pool at the time of his retrial.

Because the pleadings do not conclusively show that Azania is entitled to no relief on this claim, we authorize him to present this issue in his successive petition for post conviction relief pursuant to P-C.R. 1 § 12(b) and (c).

Second, Azania claims that he was denied the effective assistance of counsel to which he was entitled under the U.S. Constitution at his retrial because his trial counsel did not preserve for review a ruling of the trial court. The circumstances giving rise to this claim were discussed at length in our opinion on his appeal after the retrial. Azania, 730 N.E.2d at 650-51. At the retrial, defense counsel filed a motion in limine seeking to prevent the State from disclosing information regarding Azania's alleged involvement in the killing of a man named Wick. Id. The trial court granted defense counsel's request but did rule that if Azania placed his character at issue by discussing his family history and background, the State would be allowed to present the Wick evidence in rebuttal. Id. We summarized defense counsel's performance on this point as follows:

The defense successfully obtained a pretrial ruling preventing the State from presenting evidence it deemed detrimental to the defendant's interests in the penalty phase and then made a strategic decision not to risk admission of such excluded evidence on the State's rebuttal.

Id. at 653. The reasonable strategic decisions of trial counsel, which, as noted, we have already found the decision of counsel at issue here to be, cannot form the basis of an ineffective assistance of counsel claim. Rondon v. State, 711 N.E.2d 506, 518 & n. 18 (Ind.1999).

Third, Azania claims that the representation which he received from his trial and appellate counsel, "when viewed individually and in their totality, present a compelling argument that he was denied effective assistance of counsel at trial and on appeal," in violation of his U.S. constitutional right thereto. Azania is correct in his suggestion that we evaluate the competence of counsel by examining whether counsel's performance, as a whole, fell below "an objective standard of reasonableness" based on "prevailing professional norms." Woods v. State, 701 N.E.2d 1208, 1211 (Ind.1998) (quoting Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). That is, effective assistance is determined according to the whole of the lawyer's performance and not just on "the strategy and performance at issue." Butler v. State, 658 N.E.2d 72, 79 (Ind.1995) (quoting Mott v. State, 547 N.E.2d 261, 263 (Ind.1989)). "Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do not necessarily amount to ineffective counsel unless, taken as a whole, the defense was inadequate." Davis v. State, 675 N.E.2d 1097, 1100 (Ind.1996). Appellate counsel is not required to raise every possible claim, but must winnow out weaker arguments and focus on the most promising issues for review. Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Our review of the record during Azania's appeal after retrial showed that trial counsel and appellate counsel zealously represented Azania's interests. The retrial and subsequent appeal were subject to Indiana Criminal Rule 24, which requires the appointment of, and adequate compensation for, qualified trial and appellate counsel and the provision of adequate resources in capital cases. The defendant was represented by two lawyers in the retrial and resulting appeal. In addition, he was further represented at trial by a third attorney, appearing pro hac vice, Isaiah S. Gant, former member of the Office of the Capital Case Resource Center, on leave from the Federal Public Defender's Office. At the retrial, Azania's counsel filed and argued various pre-trial motions, sought and received funds to hire an expert to assist regarding mitigation evidence, challenged jurors on voir dire, presented opening and closing arguments, made objections, vigorously cross-examined witnesses, presented evidence, offered exhibits, and zealously presented extensive evidence in support of their evidentiary motions. Pursuant to counsel's strategic decision not to expose the penalty phase jury to evidence presenting a great risk of harm to the defendant, the defense presented two witnesses (a forensic scientist and a forensic pathologist) in the penalty phase. Counsel also presented four witnesses at the subsequent sentencing hearing before the...