Conner v. State

Decision Date25 May 1999
Docket NumberDEFENDANT-APPELLANT,No. 49S00-9207-PD-00591,PLAINTIFF-APPELLEE,49S00-9207-PD-00591
Citation711 N.E.2d 1238
CourtIndiana Supreme Court

Attorneys For Appellant Susan K. Carpenter Public Defender of Indiana Thomas C. Hinesley Kathleen Littell-Cleary Deputy Public Defenders Indianapolis, Indiana

Attorneys For Appellee Pamela Carter Attorney General of Indiana Preston W. Black Deputy Attorney General Indianapolis, Indiana

The opinion of the court was delivered by: Dickson, J.

The defendant-appellant, Kevin Conner, appeals the denial of his petition for post-conviction relief. On October 7, 1988, he was convicted of the January 26, 1988, murders of Steven Wentland, Tony Moore, and Bruce Voge at Indianapolis. The jury recommended the death penalty for the murders of Moore and Voge. The trial court ordered the death penalty for these murders and sentenced the defendant to sixty years imprisonment for the murder of Wentland. We affirmed in Conner v. State, 580 N.E.2d 214 (Ind. 1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1501, 117 L.Ed.2d 640 (1992). The defendant then sought post-conviction relief. Upon the post-conviction court's denial of post-conviction relief, the defendant instituted this appeal.

The defendant claims thirteen errors, which we regroup into ten topics: (1) ex parte communication to the jury; (2) non-disclosure of exculpatory evidence; (3) jury instructions; (4) admission of confession; (5) assistance of trial and appellate counsel; (6) mental health evaluations; (7) constitutionality of Indiana's death penalty statute; (8) exclusion of evidence at the post-conviction hearing; (9) cumulative effect of claimed errors as violation of due process; and (10) propriety of the death sentence.

Preliminary Considerations

Post-conviction proceedings do not afford defendants the opportunity for a "super-appeal." Coleman v. State, 703 N.E.2d 1022, 1027 (Ind. 1998) (citing Bailey v. State, 472 N.E.2d 1260, 1263 (Ind. 1985)); Langley v. State, 256 Ind. 199, 210, 267 N.E.2d 538, 544 (1971)). Rather, post-conviction proceedings provide defendants the opportunity to raise issues that were not known at the time of the original trial or that were not available to the defendant on direct appeal. Lowery v. State, 640 N.E.2d 1031, 1036 (Ind. 1994) ("Post-conviction actions are special, quasi-civil remedies whereby a party can present an error which, for various reasons, was not available or known at the time of the original trial or appeal."), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995). Thus, they do not substitute for direct appeals but provide a narrow remedy for subsequent collateral challenges to convictions. Coleman, 703 N.E.2d. at 1027 (citing Weatherford v. State, 619 N.E.2d 915, 916-17 (Ind. 1993)). As a general rule, when this Court decides an issue on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-conviction proceedings. Lowery, 640 N.E.2d at 1037. Issues that were available, but not presented, on direct appeal are forfeited on post-conviction review. Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995); Lowery, 640 N.E.2d at 1036-37. But cf. Woods v. State, 701 N.E.2d 1208 (Ind. 1998) (regarding claims of ineffective assistance of trial counsel). The petitioner has the burden of establishing his grounds for post-conviction relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

The standard of review in appeals from post-conviction negative judgments is well-established. A party appealing from such a negative judgment must establish that the evidence is without conflict and, as a whole, unmistakably and unerringly points to a Conclusion contrary to the post-conviction court's decision. Spranger, 650 N.E.2d at 1119. The reviewing court accepts the trial court's findings of fact unless "clearly erroneous," Ind. Trial Rule 52(A), but does not defer to the trial court's Conclusions of law. State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind. 1996), reh'g granted in part, 681 N.E.2d 181 (Ind. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998). The reviewing court examines only the probative evidence and reasonable inferences that support the post-conviction court's determination and does not reweigh the evidence or Judge the credibility of the witnesses. Butler v. State, 658 N.E.2d 72, 75 (Ind. 1995); Lowery, 640 N.E.2d at 1037.

1. Ex Parte Communication to the Jury

The defendant argues that the post-conviction court erred regarding his claim that a bailiff improperly communicated to the jury during deliberations. The post-conviction court concluded that "no improper communication took place between the jury and any member of the court staff during deliberations" and that "there is no reason to conclude that normal court practices regarding juror communication would not have been followed in this case." P.C.R. Record at 325. 1

The defendant's claim does not concern the content of the alleged communication, but rather the fact that it transpired outside the presence of, and without notice to, him or his counsel. Even though most of the jurors called at the post-conviction hearing testified that the communication occurred during the deliberation, one juror testified that it occurred after deliberation. The post-conviction court specifically found that this juror was the most sure of the timing. Furthermore, two bailiffs testified that they follow a standard procedure for jury questions, which includes having the jury submit the question in writing and then putting the written question in the file. In this case, the bailiffs did not recall the occurrence of such procedure and thus concluded that no communication took place. Applying our standard of review in an appeal from a negative judgment in post-conviction proceedings, we determine that the evidence does not lead unmistakably and unerringly to a Conclusion contrary to the post-conviction court's decision.

2. Non-disclosure of Exculpatory Evidence

The defendant claims that the prosecution failed to disclose the April 7, 1988, report prepared by Dr. Paul Frederickson regarding psychological testing that he performed on the defendant. The defendant contends that trial counsel did not know that such testing had been requested or performed or that this report was prepared. The post-conviction court found that "[t]rial counsel indicated that they had been unaware of Dr. Frederickson's testing and neither could recall ever seeing Dr. Frederickson's report." P.C.R. Record at 310. The defendant maintains that this report was material because it included the results of psychological testing performed on the defendant, revealed some cognitive impairment, and related to the defendant's mental health, and also because trial counsel, with the benefit of this report, would have sought additional mental health expert opinion. The State responds that the defendant's argument should be rejected because the defendant forfeited this issue by not raising it during trial or on direct appeal and failed to demonstrate that the prosecutor withheld the report and that the report was favorable to the defendant and material to his guilt.

Regarding the suppression of exculpatory evidence, the U.S. Supreme Court has held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). To prevail on a claim that the prosecution failed to disclose exculpatory evidence, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial. Minnick v. State, 698 N.E.2d 745, 755 (1998) (citing United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481, 489 (1985); Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218). A reviewing court will find that the prosecution should have disclosed evidence when "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383, 87 L.Ed.2d at 494. The Seventh Circuit Court of Appeals has consistently emphasized that the State will not be found to have suppressed material information if that information was available to a defendant through the exercise of reasonable diligence. United States v. Morris, 80 F.3d 1151, 1170 (7th Cir. 1996), cert. denied, 519 U.S. 868, 117 S.Ct. 181, 136 L.Ed.2d 120 (1996).

The defendant does not claim that this evidence was discovered after the direct appeal. A review of the record demonstrates that the information was available to the defendant through the exercise of reasonable diligence and, thus, that this claim was in fact available to the defendant upon direct appeal. Defense counsel learned of Dr. Frederickson and his testing during the competency hearing held on May 4, 1988, a full five months before the trial, which began on October 4, 1988. On cross-examination by the State, Dr. Ronald H. Hull, one of the court-ordered psychiatrists, testified that, in addition to his examination, "[a] series of psychological tests [was] done by an -- Dr. Paul Frederickson, a clinical psychologist [which] included intelligence testing and what we call projective test, such as the Rorschach." Record at 300. Dr. Hull further testified that the results of this series of examinations by Dr. Frederickson were made available to Dr. Hull before he rendered his opinion in a letter on March 21, 1988. Dr. Dwight W. Schuster, the other court-ordered...

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