Davis v. State

• Decision Date: 10 November 2011
• Docket Number: No. 65A01-1004-PC-208,65A01-1004-PC-208
• Parties: WILLIAM C. DAVIS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

WILLIAM C. DAVIS, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 65A01-1004-PC-208

COURT OF APPEALS OF INDIANA

November 10, 2011

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT:

SUSAN K. CARPENTER

Public Defender of Indiana

VICKIE YASER

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

IAN MCLEAN

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE POSEY SUPERIOR COURT

The Honorable James M. Redwine, Special Judge

Cause No. 65D01-0808-PC-382

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge William C. Davis appeals the post-conviction court's denial of his petition for post-conviction relief. Davis raises three issues, which we consolidate and restate as:

I. Whether Davis was deprived of a procedurally fair post-conviction hearing; and

II. Whether Davis was denied the effective assistance of trial counsel and appellate counsel.

We affirm and remand.

The relevant facts as discussed in Davis's direct appeal follow:

Davis met J.C. and J.H. through their mother, Machelle Yott, and he met R.H. through R.H.'s uncle and mother.¹ J.C. and R.H. were born respectively February 17, 1992 and December 19, 1990.²

Davis introduced R.H. to J.C. and J.H. The boys spent time with Davis and stayed overnight at his home. On various occasions, Davis penetrated J.C.'s anus with his penis and fingers, placed his mouth and hands on J.C.'s penis, and forced J.C. to place his mouth and hands on Davis's penis. Similarly, Davis placed his penis against R.H.'s buttocks, placed his mouth and hands on R.H.'s penis, and forced R.H. to place his mouth and hands on Davis's penis. J.C. witnessed Davis's acts against R.H, while R.H. witnessed at least some of Davis's acts against J.C. Further, Davis forced each victim to place his mouth on the other victim's penis.

In July, 2004, Yott called 9-1-1 regarding a conversation she had had with J.C. about some of these events. Evansville Police Department Officer Jim Harpenau interviewed all three boys and spoke briefly with Davis by telephone. On September 16, 2004, the State charged Davis in Posey County with Failure to Register as a Sex Offender, a Class D felony,³ and five counts of Child Molesting—two counts, Class A and C felonies, for acts against J.C., two counts, Class A and C felonies, for acts against J.H.,and one count as a Class C felony for acts against R.H. The next day, the trial court issued a warrant for Davis's arrest.

Over six to eight months, Posey County Officer Dan Gaffney attempted to locate Davis, ultimately contacting the Federal Bureau of Investigation ("FBI") for assistance. FBI Agent Matthew Mohr ("Agent Mohr") compared a photograph in the arrest warrant with the photograph of a North Dakota driver's license for Mark Allen Davis. After comparing the photographs, Agent Mohr and two other FBI agents went to the Fargo residence listed for Mark Allen Davis. Davis opened the door to find the agents with their weapons drawn. Agent Mohr identified himself as "FBI." Transcript at 183. Upon recognizing Davis as the person they were seeking, Agent Mohr entered the residence. As the agents were detaining Davis, Agent Mohr said in an inquiring tone, "William." Tr. at 184. Davis responded, "I'm Mark. William is my brother. This happens all the time." Id. Despite Davis's statement, Agent Mohr remained convinced that the person detained was William Davis. Davis agreed to go to the local sheriff's office to be fingerprinted for identification purposes. Because Davis had a broken leg, the agents were assessing how to transport him. During that time, the agents told Davis that "it would be easier on all of us if he would tell us the truth." Tr. at 185. Shortly thereafter, Davis said, "I'm Bill. My life is over." Id.

Davis v. State, No. 65A01-0605-CR-212, slip op. at 2-4 (Ind. Ct. App. May 2, 2007).

On November 4, 2005, Davis moved to sever the six counts into four different trials, as follows: both counts related to J.C., both counts related to J.H., the sole count for acts against R.H., and the count for failing to register as a sex offender. Id. at 4. Subsequently, Davis filed his Amended Motion for Severance, seeking consideration of the six counts in three trials—a separate trial for the sex-offender-registry count and a separate trial for the count alleging acts against R.H. Id. The State stipulated to severance of the count for Failure to Register as a Sex Offender. Id. As to severance of the count for acts against R.H., the trial court denied Davis's motion, concluding that the five counts constituted a common modus operandi. Id. Meanwhile, Davis movedunsuccessfully to suppress evidence of the statements he made to Agent Mohr in Fargo. Id. Davis renewed both objections during the trial. Id.

Davis moved for change of venue from Posey County, citing pre-trial publicity. The court denied Davis's motion, and the parties stipulated to bringing in jurors from Monroe County. Id. at 4 n.4. During closing argument, the prosecutor stated:

Finally, I'd like to touch on, uh, Mr. Davis' leaving the jurisdiction. Detective Harpenau called a person - and he doesn't honestly know if he spoke to William Davis or not - but he spoke to someone who identified himself to be William Davis. He told him he would like to speak to him. That happened in either late July or early August. Now. My Exhibit Number 4 is the North Dakota driving record. By August 18th of 2004, Bill Davis had obtained a North Dakota driver's license in his brother's name with his brother's date of birth but his picture. So in less than eighteen (18) or twenty (20) days, he had gone to North Dakota and obtained a driver's license with a fake name. When he was arrested in October of 2005, he was still maintaining that he was Mark Davis. And when he finally realized that it's the FBI and they've got him, "My name is William Davis."

This is another one (1) of those books.⁴ This one is a Supreme Court opinion. "Flight and related conduct may be considered by a jury in determining a defendant's guilt." You can consider the fact that he left the jurisdiction, that he was living under an alias. That's his consciousness of guilt. That's why he ran. That's why he lived under a different name.

Trial Transcript at 227.

The jury acquitted Davis on the counts alleging acts against J.H., but found him guilty of Child Molesting as Class A and C felonies for acts against J.C. and Child Molesting as a Class C felony for acts against R.H. Slip op. at 4. The trial court entered judgment of conviction on the three verdicts and sentenced Davis to forty-five yearsimprisonment for the Class A felony conviction, seven years imprisonment on the Class C felony conviction for acts against J.C., with those sentences running concurrently, and seven years imprisonment on the Class C felony conviction for acts against R.H., to run consecutive to the prior sentences. Id. at 4-5. Thus, Davis received an aggregate sentence of fifty-two years. Id. at 5.

On direct appeal, Davis argued that the trial court erred in denying his motion for severance and abused its discretion in admitting evidence of statements Davis made while identifying himself. Id. at 2. This court affirmed. Id.

On August 22, 2008, Davis filed a pro se petition for post-conviction relief which included eighty-five numbered claims with most of the claims alleging ineffective assistance of counsel. Davis also included an eighty-four page handwritten brief detailing the facts in support of his claims. On September 15, 2008, Davis filed a motion for change of judge. On September 22, 2008, a Deputy State Public Defender entered her appearance on behalf of Davis, but filed a motion to withdraw her appearance on January 12, 2009, because Davis requested that she withdraw her appearance and "remained firm in his intention to proceed pro se in this matter." Appellant's Appendix at 135. The court granted the motion to withdraw.

On April 7, 2009, the court granted Davis's motion for change of judge. On August 19, 2009, August 20, 2009, and August 21, 2009, the court held progress and evidentiary hearings on Davis's petition. At the beginning of the second day, the court informed Davis: "Mr. Davis, you have gone over the same point for about six straight hours, and I just want to tell you that courts do not have unlimited time," and that thepoint Davis began the hearing with was "the very same point [Davis] made numerous times yesterday." Post-Conviction Transcript at 206. Throughout the hearing, Davis's trial counsel informed Davis that he should be represented.

On September 1, 2009, Davis filed a twenty-one page motion to amend his petition for post-conviction relief, which the court granted on September 9, 2009. The court also granted Davis's motion to supplement the record by affidavit. On April 8, 2010, the court denied Davis's petition for post-conviction relief.⁵

Before discussing Davis's allegations of error, we note the general standard under which we review a post-conviction court's denial of a petition for post-conviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana...