Conner v. State

• Decision Date: 16 June 2005
• Docket Number: No. 49S00-0504-SD-164.,49S00-0504-SD-164.
• Citation: 829 N.E.2d 21
• Parties: Kevin A. CONNER, Petitioner, v. STATE of Indiana, Respondent.
• Court: Indiana Supreme Court

829 N.E.2d 21

Kevin A. CONNER, Petitioner, v. STATE of Indiana, Respondent.

No. 49S00-0504-SD-164.

Supreme Court of Indiana.

June 16, 2005.

COPYRIGHT MATERIAL OMITTED

ORDER CONCERNING SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF IN CAPITAL CASE

Introduction

Petitioner Kevin Conner, having been convicted of three counts of murder and sentenced to death, has had his convictions and sentence affirmed at every level of review multiple times by various courts. Conner now requests permission to litigate additional collateral claims in state court, asserting that the jury was not properly instructed in the guilt phase of his 1988 trial. Because we conclude Conner has not shown a reasonable possibility he is entitled to relief, we deny his request. A date for execution of the death sentence will be set by separate order.

Background

In the early morning of January 26, 1988, Bruce Voge, Steve Wentland, Tony Moore, and Conner were together at Moore's house in Indianapolis, drinking alcohol. Three of the men (Wentland, Moore and Conner) went for a drive. While still in the vehicle, Moore argued with Wentland, and stabbed him. When Wentland left the vehicle and ran, Moore pursued him in the vehicle and Connor followed on foot. Moore struck Wentland with the vehicle. Conner beat Wentland and stabbed him multiple times. Conner and Moore left the mortally wounded Wentland and drove to Conner's workplace. While there, Conner later told police, he and Moore argued about what they should have done, and Conner shot Moore, killing him. Conner then drove to the house where Voge had remained, and shot Voge as he lay on the couch. Conner disposed of the bodies with the help of friends, then fled. Conner was arrested a few days later in Texas, and returned to Indiana to be tried on three murder charges in the Marion Superior Court.

A jury found Conner guilty of murdering Wentland, Moore and Voge. The State sought the death penalty, alleging the multiple murders as the aggravating factor that rendered Conner eligible for a death sentence. See Ind.Code § 35-50-2-9(b)(8). The jury unanimously recommended a death sentence. The Marion Superior Court followed the jury's recommendation and sentenced Conner to death.

The convictions and sentence were affirmed on direct appeal 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, reh'g denied 504 U.S. 936, 112 S.Ct. 2006, 118 L.Ed.2d 600 (1992). The trial court's judgment denying relief in collateral state post-conviction proceedings was affirmed on appeal in Conner v. State, 711 N.E.2d 1238 (Ind.1999), reh'g denied, cert. denied 531 U.S. 829, 121 S.Ct. 81, 148 L.Ed.2d 43 (2000). The federal district court denied a petition for writ of habeas corpus in Conner v. Anderson, 259 F.Supp.2d 741 (S.D.Ind.2003), affirmed in Conner v. McBride, 375 F.3d 643 (7th Cir.2004), reh'g and reh'g en banc denied, cert. denied, 543 U.S. ___, 125 S.Ct. 1399, 161 L.Ed.2d 193 (Feb. 28, 2005), reh'g denied, 543 U.S. ___, 125 S.Ct. 1930, 161 L.Ed.2d 793 (Apr. 25, 2005).

Conner has thus completed the review of the convictions and death sentence to which he is entitled as a matter of right.

Conner now asserts he is entitled to a new trial because the jury was not properly instructed at his 1988 trial. By counsel, he has filed an "Amended Request for Permission to File Successive Post-Conviction Relief Petition" and has tendered a proposed "Amended Verified Successive Petition For Post-Conviction Relief." The State filed a "Verified Response in Opposition to Request For Permission to File Successive Petition For Post-Conviction Relief" and Conner was allowed to file "Petitioner's Verified Reply to State's Verified Response in Opposition to Request For Permission to File Successive Petition For Post-Conviction Relief."

We have jurisdiction because Conner is sentenced to death. See Ind. Appellate Rule 4(A)(1)(a).

Our Post-Conviction Rules

Conner has already availed himself of our rule that permits a person convicted of a crime in an Indiana state court one collateral review of a conviction and sentence in a post-conviction proceeding. See Ind. Post-Conviction Rule 1. As indicated above, Conner lost; the trial court entered judgment against him and we affirmed that judgment on appeal.

To litigate another or "successive" post-conviction claim, Conner needs our permission. We will authorize such a proceeding to go forward only "if the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction relief." P-C.R. 1 § 12(b). In deciding whether Conner has made the required showing, we consider the applicable law, the petition, materials from his prior appeals and post-conviction proceedings including the record, briefs and court decisions, and any other material we deem relevant. See id.

The Claims

1. Voluntary manslaughter instruction. With respect to the killings of Wentland and Moore, Conner asserts an instruction on voluntary manslaughter should have been given, and the instruction on the elements of murder was defective because it did not say the State had the burden of disproving that Conner acted with sudden heat. This claim is procedurally defaulted, has otherwise previously been decided against Conner, and even had the instructions been given, the evidence against Conner was such that the trial would have nonetheless resulted in the multiple murder convictions.

Conner's claim is that the jury should have been instructed on "sudden heat." Sudden heat is a mitigating factor that reduces the crime of murder to voluntary manslaughter. See I.C. § 35-42-1-1 (a person who knowingly or intentionally kills another human being commits murder) and I.C. § 35-42-1-3 (a person who knowingly or intentionally kills another human being while acting under "sudden heat" commits voluntary manslaughter). Sudden heat occurs when a defendant is provoked by anger, rage, resentment, or terror, to a degree sufficient to obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection. See, e.g., Stevens v. State, 691 N.E.2d 412, 426-27 (Ind.1997); Baird v. State, 604 N.E.2d 1170, 1178 (Ind.1992). Sudden heat excludes malice, and neither mere words nor anger, without more, provide sufficient provocation. See, e.g., Stevens, 691 N.E.2d at 426-27; Matheney v. State, 583 N.E.2d 1202, 1205 (Ind.1992). The State must prove the absence of sudden heat to obtain a murder conviction when the defendant has asserted the issue at trial, but it is well-settled in Indiana that there is no implied element of the absence of sudden heat on a murder charge. See, e.g., Palmer v. State, 425 N.E.2d 640, 644 (Ind.1981).

Conner's free-standing claim of instructional error, raised at this late stage, is procedurally defaulted. The proper time for Conner to have raised the issue was at trial, but he did not request an instruction on voluntary manslaughter or object to the murder instruction that was given. Instructional errors are generally unavailable on appeal unless the error is preserved at trial. See Ben-Yisrayl v. State, 729 N.E.2d 102, 110 (Ind.2000). Despite not preserving the issue at trial, Conner might have argued in the direct appeal that the absence of instruction on sudden heat was "fundamental error," but he did not. Claims of fundamental error must be brought at the proper time or they are procedurally defaulted. See, e.g., Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002); Canaan v. State, 683 N.E.2d 227, 235-36 n. 6 (Ind.1997). Furthermore, Conner makes no assertion that this claim was not known and available to him in prior proceedings. To the extent Conner argues we must allow him to litigate a claim of fundamental error at this point after his direct appeal and post-conviction appeal, he is simply wrong.

Even were we to address the claim as one of fundamental error, as Conner urges us to do, we would not decide that Conner is entitled to a new trial. Unlike the cases Conner cites, see, e.g., Harrington v. State, 516 N.E.2d 65, 66 (Ind.1987), and Sanders v. Cotton, 398 F.3d 572, 577 (7th Cir.2005), Conner's jury did not receive erroneous instructions on sudden heat or the State's burden of proof. The instruction on murder that was given correctly stated the elements of murder. We agree with the assessment of the federal courts that the trial would have resulted in three murder convictions even if the jury had been instructed on sudden heat. See Conner v. McBride, 375 F.3d at 665. In short, we would conclude that Conner has not shown anything approaching the kind of blatant violation that might warrant permitting a successive petition.

In addition, we rejected the instructional error claim on the merits in the first state post-conviction proceeding, where it was raised as a claim of substandard attorney performance. See Conner v. State, 711 N.E.2d at 1250 (determining that defense counsel could have reasonably decided to seek acquittal on the murder charge rather than arguing for the lesser offense of voluntary manslaughter). The federal courts rejected this claim, too. See Conner v. McBride, 375 F.3d at 665 (concluding Conner had failed to demonstrate that the jury would not have convicted him of murder even if an instruction on sudden heat had been given). Thus, to the extent his present claim is the same as raised before, the claim was decided adverse to Conner and is barred by the doctrine of res judicata. See, e.g., Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999).

To the extent Conner claims his post-conviction counsel did not provide effective assistance, Conner fails to state a cognizable claim. See Graves v. State, 823 N.E.2d 1193, 1195-97 (Ind.2005) (discussing the standard in Indiana state courts for reviewing counsel's performance in...