Dickens v. State

• Citation: 997 N.E.2d 56
• Decision Date: 24 October 2013
• Docket Number: No. 71A03–1304–PC–101.,71A03–1304–PC–101.
• Parties: Gregory DICKENS, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Court of Appeals of Indiana

997 N.E.2d 56

Gregory DICKENS, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 71A03–1304–PC–101.

Court of Appeals of Indiana.

Oct. 24, 2013.

Stephen T. Owens, Public Defender of Indiana, Steven H. Schutte, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

CASE SUMMARY

Appellant–Petitioner Gregory Dickens was convicted of murdering a police officer while the officer was engaged in his official duties. Dickens's conviction was affirmed by the Indiana Supreme Court on direct appeal. Dickens sought post-conviction relief, arguing, inter alia, that he was entitled to a new trial in light of newly discovered evidence, that he was entitled to a new trial because the State withheld evidence from the defense in violation of Brady v. Maryland,¹ and that he received ineffective assistance of trial counsel. Dickens now appeals from the denial of his petition for post-conviction relief. Concluding that Dickens was not entitled to a new trial in light of either the newly discovered evidence or the alleged Brady violation, and that Dickens did not receive ineffective assistance of trial counsel, we affirm.

FACTS AND PROCEDURAL HISTORY

The Indiana Supreme Court's opinion in Dickens's direct appeal instructs us as to the underlying facts leading to this post-conviction appeal:

On August 24, 1997, sixteen-year-old Dickens was riding bikes with Quinton Price, known as “Paulie.” While patrolling the area, Officer Scott Hanley advised Corporal Paul Deguch by radio that Dickens was riding a valuable bicycle that he suspected was stolen. Later on that evening, Deguch spotted Dickens and Paulie and approached them in his patrol car. Paulie rode off, while Dickens rode up to the nearest house, 1024 Talbot Street, alighted from the bike, and went up on the porch. Deguch shined his spotlight onto the porch, exited his car, and followed Dickens onto the porch as Dickens was knocking on the door. Dickens shot Corporal Deguch in his head and shoulder and killed him.

The State charged Dickens with murder and sought the death penalty because the victim was a law enforcement officer. A jury found Dickens guilty, and recommended life imprisonment without parole, which the trial court imposed.

Dickens v. State, 754 N.E.2d 1, 3–4 (Ind.2001). The Indiana Supreme Court affirmed Dickens's conviction on direct appeal. Id. at 4–7.

On August 26, 2002, Dickens filed a pro se petition for post-conviction relief (“PCR”). On November 22, 2011, March 6, 2012, August 3, 2012, and November 15, 2012, Dickens, by counsel, filed amended PCR petitions. The post-conviction court conducted a two-day evidentiary hearing on Dickens's last amended PCR petition on December 18 and 19, 2012. During this hearing, Dickens, by counsel, presented argument in support of his amended PCR petition. On March 4, 2013, the post-conviction court issued an order denying Dickens's request for PCR.

DISCUSSION AND DECISION

Post-conviction procedures do not afford the petitioner with a super-appeal. Williams v. State, 706 N.E.2d 149, 153 (Ind.1999). Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules. Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind.2001); Collier v. State, 715 N.E.2d 940, 942 (Ind.Ct.App.1999), trans. denied.

Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002). Therefore, in order to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post–Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, “leads unmistakably to a conclusion opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind.Ct.App.2004), trans. denied. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). We therefore accept the post-conviction court's findings of fact unless they are clearly erroneous but give no deference to its conclusions of law. Id.

I. Newly Discovered Evidence

Dickens contends that the post-conviction court erroneously determined that he was not entitled to a new trial in light of certain newly discovered evidence. Specifically, Dickens argues that a report issued by the National Research Counsel (“NRC”), which was completed in 2004, established that the previously accepted and relied upon comparative bullet lead analysis (“CBLA”) conducted by the FBI was unreliable. As such, Dickens claims that the newly discovered NRC report was relevant and would warrant a new trial because it would render inadmissible FBI forensic examiner Charles Peters's testimony about the CBLA conducted on the spent bullets recovered from the crime scene and the unspent bullets found in Dickens's bedroom prior to Dickens's trial.²

The Indiana Supreme Court has enunciated nine criteria for admission of newly discovered evidence.

[N]ew evidence will mandate a new trial only when the defendant demonstrates that: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial.

Taylor v. State, 840 N.E.2d 324, 329–30 (Ind.2006) (citing Carter v. State, 738 N.E.2d 665, 671 (Ind.2000)) (brackets in original). On appeal, the denial of a petitionpredicated on newly discovered evidence is considered a discretionary ruling and is reviewed deferentially. Fox v. State, 568 N.E.2d 1006, 1007 (Ind.1991) (citing Hammers v. State, 502 N.E.2d 1339 (Ind.1987)). Accordingly, we analyze the nine factors “ ‘with care, as the basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized.’ ” Taylor, 840 N.E.2d at 330 (quoting Carter, 738 N.E.2d at 671). “The burden of showing that all nine requirements are met rests with the petitioner for post-conviction relief.” Id. (citing Webster v. State, 699 N.E.2d 266, 269 (Ind.1998)).

In the instant matter, Dickens does not dispute the post-conviction court's findings regarding the first eight requirements.³ Dickens merely argues that the post-conviction court erroneously determined that the NRC report would not produce a different result at retrial. As such, we will limit our review on appeal to this final requirement.

“In ruling whether a piece of evidence would produce a different result, the judge may properly consider the weight that a reasonable trier of fact would give it and, while so doing, may also evaluate its probable impact on a new trial in light of all the facts and circumstances shown at the original trial of the case.” Fox, 568 N.E.2d at 1007. “The defendant must raise a strong presumption that the result at any subsequent trial in all probability would be different.” Bunch v. State, 964 N.E.2d 274, 296 (Ind.Ct.App.2012), reh'g denied, trans. denied. “A sufficient probability of a different result upon retrial is present where the omitted evidence creates a reasonable doubt that did not otherwise exist.” Fox, 568 N.E.2d at 1008.

The post-conviction court found that in light of the findings contained in the NRC report, Peters's testimony regarding the CBLA would not likely be admissible at retrial. Although the exclusion of the CBLA evidence might have weakened the State's case, Dickens has not shown that the exclusion of the CBLA evidence, without more, would make it probable that a different result would be produced at retrial. As the post-conviction court noted, the CBLA evidence did not place Dickens on the porch at the time Corporal Deguch was shot, eyewitness testimony did.

The essential elements of the State's case were established through eyewitness testimony. Myron Crawford and Rufus Tate each testified that they saw Dickens on the porch with Corporal Deguch at the time of the shooting. Neither Crawford nor Tate saw anyone else on the porch. At the time of the shooting, Crawford was with his sister, Lolita Lewis, and a friend inside the house that is connected to the porch where Corporal Deguch was shot. Tate was sitting on the porch of his residence across the street from the porch where Corporal Deguch was shot.

After Corporal Deguch followed Dickens onto the porch, Crawford saw Dickens turn toward Corporal Deguch and raise his hand. Crawford then heard four gunshots and saw a flash coming from Dickens's hand. Crawford testified that Dickens appearedto be standing “right in front of” Corporal Deguch approximately two or three feet from Corporal Deguch at the time that Corporal Deguch was shot. Trial Tr. p. 2575. After being shot, Corporal Deguch fell forward against Dickens who “pushed him up off him.” Trial Tr. p. 2575.

Tate also heard something that “sounded like firecrackers” and saw “some flashes.” Trial Tr. p. 2526. Lewis also heard gunfire. After hearing gunfire, Lewis looked out onto the porch. Lewis saw Dickens run from the stairs at the bottom of the porch. Each of these witnesses testified that they knew Dickens prior to...