Deckard v. State

• Decision Date: 25 February 2015
• Docket Number: No. 53A01–1405–PC–222.,53A01–1405–PC–222.
• Citation: 29 N.E.3d 819 (Table)
• Parties: John DECKARD, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

29 N.E.3d 819 (Table)

John DECKARD, Appellant–Petitioner

v.STATE of Indiana, Appellee–Respondent.

No. 53A01–1405–PC–222.

Court of Appeals of Indiana.

Feb. 25, 2015.

Frederick A. Turner, Bloomington, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

BROWN, Judge.

[1] John Deckard appeals the denial of his petition for post-conviction relief. Deckard raises three issues, which we consolidate and restate as whether the post-conviction court erred in denying his petition for relief. We affirm.

Facts and Procedural History

[2] The relevant facts as discussed in Deckard's direct appeal from his conviction of felony murder for the burglary and subsequent death of Barry Scroggins follow:

The victim, Barry Scroggins, lived in a cabin in a rural area of Monroe County, Indiana. Near Scroggins' cabin was an abandoned home at which youth from the area congregated. Defendant Deckard, then seventeen, and his friend Will Taylor, age twenty, frequented the abandoned home, often overnight. On July 27, 1991, Deckard, Taylor, and several of their friends were stranded at the home after their car broke down. That evening Deckard and Taylor left the house on foot, returning several hours later with a pickup, two pistols, and a rifle. That evening, Barry Scroggins, the victim, reported to police that someone had broken into his cabin and stolen three guns and his pickup. Deckard sold two of the guns a few days later, and, after selling parts of the truck to raise money for spirits, abandoned it. The record indicates that Deckard conducted something of a petty-crime spree over the next several days, including repeated intrusions upon Scroggins' cabin in Scroggins' absence.

On August 7, 1991, Scroggins apparently met intruders at his cabin. At that meeting, Scroggins suffered a single gunshot wound, the bullet piercing his sternum. The bullet proved to be of the same caliber as one of the guns possessed by Deckard, and forensic evidence admitted at trial indicates that the bullet could have come from that weapon. Scroggins, within fifteen minutes of receiving the wound, passed on.

Deckard v. State, 670 N.E.2d 1, 2–3 (Ind.1996).

[3] Later that evening, while responding to a report of gunshots being fired, police discovered Deckard driving the victim Scroggins' blue Camaro. Three other young men and a young woman were also in the car. Id. Stinesville Town Marshal Fred Walls asked Deckard if he had a driver's license and registration, and Deckard stated that he did not have a driver's license and said that he did not know whether there was a registration in the vehicle because the car had just been purchased by his cousin and that he had borrowed it for a couple of days. Marshal Walls asked Deckard if he had weapons in the vehicle, and Deckard indicated that he did not. Marshal Walls then asked the female in the vehicle if there were any weapons in the vehicle, and she indicated affirmatively. Marshal Walls then advised Deckard that he would like to look in the trunk, and “if he declined, we would stay there until we received a search warrant.” Trial Record at 1030. Deckard then agreed to let Marshal Walls into the trunk. When the trunk was opened, Marshal Walls observed an AR–15, which is “basically a military-type weapon,” and a .223 rifle, which is a “high-powered rifle,” with a tripod. Id. at 1033.

[4] At some point, Monroe County Sheriff's Deputy Anthony Bruner arrived on the scene. Investigating officers found Scroggins' wallet, guns, and clothing in the car. Deckard, 670 N.E.2d at 3. After further investigation, Deckard assisted police in recovering various stolen items and was subsequently released to his grandparents. Id.

[5] On August 8, 1991, the police obtained a search warrant for a residence under construction. Later that day, Deckard went with his parents to the Bloomington Police Department. Id. Bloomington Police Officer Daniel W. Conley informed Deckard of his rights. Id. Deckard and his parents waived those rights, and Deckard gave a statement admitting that he knew of Will Taylor's intent to return to Scroggins' cabin, burglarize it again, and steal Scroggins' blue Camaro, killing the owner if necessary. Id. Deckard also admitted helping Taylor after the killing, but denied actually participating in the murder. Id.

[6] At the June 1992 trial, Deckard's counsel argued during his opening statement that seventeen-year-old Deckard became friends with twenty-year-old Will Taylor and that Taylor killed Scroggins on August 7, 1991. Deckard was convicted of felony murder. Id. at 3. Prior to the sentencing hearing, Deckard's trial counsel filed a petition for appointment of sentencing expert to hire Dr. Jan Smith to evaluate Deckard, which the court denied. The court sentenced Deckard to sixty years imprisonment. Id. at 3.

[7] Deckard brought a direct appeal and his appellate counsel filed a brief on February 14, 1994. Deckard argued that the evidence was insufficient, that the prosecutor committed misconduct, that the trial court improperly denied his motion for a mistrial, that the court improperly admitted his statements to police, and that the court erred in imposing an aggravated sentence. Id. at 3–6. On August 7, 1996, the Indiana Supreme Court affirmed. Id. at 6.

[8] On March 26, 2009, Deckard, pro se, filed a petition for post-conviction relief. Deckard argued that his trial counsel and appellate counsel were ineffective. Specifically, Deckard argued that his trial counsel was ineffective for failing to file a pretrial motion to suppress, object to the introduction of 404(b) evidence, and move for dismissal or discharge for a lack of probable cause in support of the arrest warrant. Deckard alleged that his appellate counsel failed to properly litigate the admissibility of Deckard's statements to police officers and failed to raise the introduction of 404(b) evidence. In 2009, the State filed an answer and an amended answer that alleged in part that relief should be denied due to laches and/or res judicata.

[9] On December 30, 2011, Deckard, represented by counsel, filed an amended petition for post-conviction relief. Deckard alleged that his conviction was based primarily on evidence obtained after an illegal and unconstitutional search of his vehicle, that statements and evidence were procured from Deckard, who was then seventeen years old, after his arrest without the consultation of either parent. Deckard asserted that his trial counsel did not object to this evidence. Deckard also asserted that the trial court's denial of his trial counsel's request for funds for a sentencing expert violated his constitutional rights under both the United States and Indiana Constitutions. He also asserted that appellate counsel was ineffective for not raising this issue on direct appeal.

[10] On April 4, 2013, Deckard filed a second amended petition for post-conviction relief. In part, Deckard alleged that the denial of funds for a sentencing expert denied him his fundamental rights to the extent that it denied him the effective assistance of counsel.

[11] On April 4, 2013, the court held a hearing on Deckard's petition. At the hearing, Marshal Walls testified regarding the August 8, 1991 traffic stop. Petitioner's Exhibit 1 consists of a map that includes Gosport and according to Marshal Walls's testimony Moon Road.¹ Deckard's counsel asked Marshal Walls to make either an X or a circle on the section of Moon Road that he believed the shots were coming from. The X on Petitioner's Exhibit 1 is on a portion of Moon Road between the location where Moon Road dead-ends to the north and where West Sand College Road meets Moon Road to the south. Deckard's counsel asked Marshal Walls to put a P where he pulled the car over. Petitioner's Exhibit 1 does not contain a clear indication that a P was marked. Marshal Walls stated: “It was just north of Sand College, where I don't, I don't recall.” Id. at 9. On redirect examination, Deckard's counsel asked Marshal Walls to mark the intersection where he met Marshal Hall with an H. Petitioner's Exhibit 1 appears to contain an H near where Moon Road and W. Wampler Road meet. It is unclear whether the H was written over a P.

[12] According to Marshal Walls, he received a report around ten, eleven, or twelve at night on August 7, 1991 from the town marshal in Gosport in reference to high-powered weapons being fired over the river into the town of Gosport and that the shots were coming from the Moon Road area. Marshal Walls testified that Moon Road was not paved in 1991, was narrow, dead-ended at the river, and was not a high traffic area. The area of Moon Road that dead-ends was something that “kids, teenagers, twenty-somethings use to go back and drink beer by the creek, or by the river.” Post–Conviction Transcript at 18. Marshal Walls did not see any other vehicular traffic while he was on the road just prior to the stop of the vehicle driven by Deckard and he did not expect to see other traffic .² Marshal Walls testified that he was driving north on Moon Road and stopped the first vehicle that he saw on Moon Road. When asked where he first made contact with the vehicle driven by Deckard, Marshal Walls said it was “[j]ust north of Sand College” Road, which according to the map and testimony is the first road that meets Moon Road south of where Moon Road dead-ends.³ Id. at 9. On redirect examination, Marshal Walls testified that he met Marshal Hall on Wampler Road and Moon Road.

[13] Deputy Sheriff Jeff Brahaum testified regarding the stop and the aftermath. Deckard's trial counsel testified that he did not think that he filed any kind of motion to suppress the evidence seized from the traffic stop. When asked whether there was a strategic reason for not filing a motion to suppress, he answered: “I don't know what reason there would be. I don't remember.” Id. at 37. On cross-examination, the...