Cossel v. State
| Decision Date | 30 December 1996 |
| Docket Number | No. 62A01-9603-PC-74,62A01-9603-PC-74 |
| Citation | 675 N.E.2d 355 |
| Parties | Timothy L. COSSEL, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Timothy L. Cossel appeals from the post-conviction court's denial of his petition for post-conviction relief. Cossel was tried by jury and convicted as charged of five felonies: Rape, as a Class A felony; Criminal Confinement, as a class B felony; Criminal Deviate Conduct, as a Class A felony; Battery, as a Class C felony; and Burglary, as a Class B felony. His convictions were affirmed on direct appeal. Cossel subsequently filed his petition for post-conviction relief, which was denied.
We affirm.
Cossel presents several issues for our review which we restate as:
1. Whether Federal Rule of Evidence 404(b), as adopted in Lannan v. State, 600 N.E.2d 1334 (Ind.1992), applies retroactively to petitions for post-conviction relief.
2. Whether Cossel was denied the effective assistance of trial counsel.
3. Whether double jeopardy prohibits Cossel's convictions for both rape and criminal confinement.
The following facts are found in this court's memorandum decision on Cossel's direct appeal:
On April 25, 1983, shortly after 10:15 p.m., K.D. put her child to bed and went to bed herself. She was awakened shortly thereafter when a man removed her covers, pulled up her nightgown and jumped on her, putting a knife to her back. The attacker then threatened to kill both her and the child if she resisted.
The attacker attempted to engage in anal sex, which was extremely painful for K.D. The man then warned her not to look at his face, turned her over and covered her face with a pillow. He then raped K.D. He then turned her back over, jabbed her in the back with the knife and told her if she reported the assault that he would kill her and the child. The man then left.
In the summer of 1984, a Tell City police officer presented a photographic array for K.D. to view. After she could not identify her assailant, Officer Davis removed Cossel's picture and indicated that Cossel could be viewed in a visual line-up at Owensboro, Kentucky. At the line-up, K.D. identified Cossel as her attacker. Cossel was charged by information on June 4, 1986. A jury trial commenced on October 30, 1989, at which two other rape victims, S.K. and H.M., testified. On November 3, 1989, the jury found Cossel guilty on all five counts. Cossel appeals the jury verdict on all five counts.
Cossel v. State, No. 62A01-9003-CR-117, slip op. at 2, 564 N.E.2d 355 (Ind. Ct.App. filed Dec. 11, 1990). Cossel's convictions were upheld on direct appeal. Cossel then filed his petition for postconviction relief which was denied by the court. Cossel now appeals.
The purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at trial. Grey v. State, 553 N.E.2d 1196, 1197 (Ind.1990). Thus, post-conviction relief is not a "super appeal." Collier v. State, 572 N.E.2d 1299, 1301 (Ind.Ct.App.1991), trans. denied. Failure to raise error on direct appeal results in waiver of that issue on post-conviction review unless the error was fundamental. See, e.g., Simmons v. State, 642 N.E.2d 511 (Ind.1994); Holleman v. State, 641 N.E.2d 638, 640-41 (Ind.Ct.App.1994), trans. denied. To qualify as "fundamental," the error must be a substantial blatant violation of basic principles rendering the trial unfair to the defendant. Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994). A claim of fundamental error is not viable without a showing of grave peril and the possible effect on the jury's decision. Isom v. State, 651 N.E.2d 1151, 1152 (Ind.1995). The appellant bears the burden of proving by a preponderance of the evidence that the alleged error occurred and that the error was fundamental in nature. Ind. Post-Conviction Rule 1 § 5. We reverse only if the petitioner shows that the evidence is without conflict and leads only to a conclusion opposite that reached by the post-conviction court. St. John v. State, 529 N.E.2d 371, 374 (Ind.Ct.App.1988), trans. denied. Issue One: Retroactivity of Federal Rule of Evidence 404(b)
Cossel objected at trial to the admission of S.K.'s testimony, which described Cossel's prior acts of sexual misconduct, and Cossel raised the issue on direct appeal. This court held that S.K.'s testimony was admissible under the depraved sexual instinct exception. Cossel, slip op. at 4. After our memorandum decision was handed down, the supreme court decided Lannan v. State, 600 N.E.2d 1334 (Ind.1992), which abandoned the depraved sexual instinct exception and adopted Federal Rule of Evidence 404(b). 1 Cossel's direct appeal was not pending when Lannan was decided and, thus, he did not benefit from the new rule. Cossel now argues that the rule announced in Lannan should apply retroactively to his case on postconviction relief. 2 In Pirnat v. State, 607 N.E.2d 973 (Ind.1993), our supreme court stated, "We doubt Lannan will qualify for retroactive application to cases on collateral review, but reserve that question for another day." Id. at 974. Although this issue has not been squarely presented to our supreme court, it has been decided by implication.
In Lannan, our supreme court adopted Federal Rule of Evidence 404(b). Lannan, 600 N.E.2d at 1339. Previously, Indiana law had permitted the admission of evidence of certain kinds of prior sexual conduct under the depraved sexual instinct exception. Stewart v. State, 555 N.E.2d 121, 124 (Ind.1990), overruled by Lannan, 600 N.E.2d 1334. This exception had been carved out of the general rule which prohibited the admission of past uncharged misconduct because "acts showing a perverted sexual instinct are circumstances which with other circumstances may have a tendency to connect an accused with a crime of that character, and to lend credence to a victim's accusations or testimony which describe acts which would otherwise seem improbable standing alone." Id. The depraved sexual instinct exception did not require the State to give notice of its intention to present evidence of a defendant's depraved sexual instinct, nor did it require a particular similarity between the prior bad act and the crime charged. Lannan, 600 N.E.2d at 1338.
With the abandonment of the depraved sexual instinct exception and the adoption of Rule 404(b), the supreme court established specific guidelines which limited the admission of evidence of prior sexual misconduct. Evidence of prior sexual misconduct is no longer admitted to show action in conformity with a particular character trait. Id. Now, the evidence may be admissible, despite its tendency to show bad character or criminal propensity, if it makes the existence of an element of the crime charged more probable than it would be without such evidence. Id. This rule qualifies as a "new rule" because it "breaks new ground," and the result of Lannan was not dictated by precedent existing at the time the defendant's conviction became final. See Teague v. Lane, 489 U.S. 288, 300, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334, 349 (1989) ().
Generally, a new constitutional rule of criminal procedure is not applicable to those cases on collateral review, that is, those which have become final before the new rule is announced. Daniels v. State, 561 N.E.2d 487, 488-89 (Ind.1990) (citing Teague, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334). However, two exceptions exist. First, a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Teague, 489 U.S. at 307, 109 S.Ct. at 1073, 103 L.Ed.2d at 353, or prohibits "a certain category of punishment for a class of defendants because of their status or offense." Daniels, 561 N.E.2d at 490. Cossel concedes that the Lannan rule does not fall under this exception. Brief of Appellant at 34.
Instead, Cossel argues that the second Teague exception applies. He correctly states that a new rule should be applied retroactively if it requires the observance of "those procedures that ... are implicit in the concept of ordered liberty" and "without which the likelihood of an accurate conviction is seriously diminished." Id. (quoting Teague, 489 U.S. at 307, 314, 109 S.Ct. at 1073, 1077, 103 L.Ed.2d at 353, 358). This exception is applicable only to "watershed rules" necessary to the fundamental fairness of a criminal proceeding and which "must not only improve accuracy, but also 'alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Id. (quoting Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 193, 211 (1990)).
Contrary to Cossel's assertion, the rule announced in Lannan does not fall under the second exception because Federal Rule of Evidence 404(b) is not a "watershed rule of criminal procedure." Our supreme court implicitly rejected that argument when it held that the rule announced Lannan does not qualify for "fundamental error" analysis. Ried v. State, 615 N.E.2d 893, 893 (Ind.1993). 3 It follows that neither is the rule an absolute prerequisite to fundamental fairness that is "implicit in the concept of ordered liberty." See Teague, 489 U.S. at 314, 109 S.Ct. at 1077, 103 L.Ed.2d at 358; see also Ried, 610 N.E.2d at 281(to constitute fundamental error, error must be blatant violation of basic and elementary principles, and harm must be substantial and appear clearly and prospectively).
Rule 404(b) was adopted because the justifications for the depraved sexual instinct exception...
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