Freed v. State

• Decision Date: 22 December 2015
• Docket Number: No. 79A02–1506–PC–599.,79A02–1506–PC–599.
• Citation: 44 N.E.3d 137 (Table)
• Parties: Michael FREED, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

44 N.E.3d 137 (Table)

Michael FREED, Appellant–Petitioner

v.STATE of Indiana, Appellee–Respondent.

No. 79A02–1506–PC–599.

Court of Appeals of Indiana.

Dec. 22, 2015.

Stephen T. Owens, Public Defender of Indiana, Kevin R. Hewlate, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

BRADFORD

, Judge.

Case Summary

[1] In 2010, Appellant–Petitioner Michael Freed was convicted of Class B felony robbery. Freed's conviction was affirmed on direct appeal. Freed filed a petition for post-conviction relief (“PCR”) in January of 2012. On May 19, 2015, the post-conviction court issued an order denying Freed's petition. Freed then appealed, arguing that the post-conviction court erroneously determined that he did not suffer ineffective assistance of appellate counsel. We affirm.

Facts and Procedural History

[2] Our opinion in Freed's prior direct appeal, which was handed down on October 3, 2011, instructs us as to the underlying facts and procedural history leading to this post-conviction appeal:

On July 6, 2008, at approximately 2:30 a.m., Freed entered a Village Pantry convenience store in Lafayette. The store was located near the intersection of Brady Lane and Concord Avenue. Freed wore a glove on his left hand, a hat on his head, and another article covering the bottom of his face. Employee Cora Taegel was working alone at the store. Freed brandished a knife and demanded that Taegel give him the money from the register. Taegel gave Freed $115 from the drawer. Freed fled. Taegel suffered a panic attack but called 911 right away. Freed headed north to his friend's apartment, which was in a complex adjacent to the convenience store. He shed his disguise while en route.

Law enforcement responded. Officers located a hat and other clothing items in the vicinity of the Village Pantry, but Freed eluded police for the time being.

The robbery was caught on a surveillance tape. The tape apparently did not capture Freed's face, though it did record his voice.

Freed was later arrested and jailed in connection with an unrelated burglary/forgery. Freed and an accomplice allegedly broke into the residence of Alice and Menlo Pridemore and stole a purse containing a checkbook. Freed and his accomplice then went to a bank to cash forged checks.

While in jail for the latter offenses, Freed was concerned that the Pridemores would testify against him at trial. Freed devised a plan to murder them, and he sought assistance from fellow inmate James Scott Littrell. Littrell played along but intended to report Freed to authorities. Littrell falsely told Freed that he knew someone who could perform a murder-for-hire. Littrell asked Freed to put his murder request into writing.

Freed wrote a letter to Littrell's made-up hit man. Lhe letter stated in part:

I have a case with these people as witness's and I hear your the man to talk to about taking care of problems for good. So my case will be clean at trial. Im in a bind because Im in jail.... If you help me, Ill make sure you get your money when I get out. Just give me a few days unless Scott can loan me the money right now. I really need your help.... I will do anything to make this problem disappear.

State's Ex. 16. Freed attached a hand-drawn map of the Pridemores' home. At the end of the letter, Freed wrote: “Check for an unsolved VP robbery in July of 08 at Concord and brady In.” Id . Lhis statement was the equivalent of a confession to the Village Pantry robbery. Lhe confession functioned as “insurance” or “collateral” for Littrell's assistance in the murder plot. In other words, if Freed were to tell on Littrell, Littrell would have Freed's robbery confession to disclose to law enforcement.

Littrell turned Freed's letter over to authorities, and Detective Daniel Shumaker soon met with Freed to question him about the Village Pantry robbery. Freed denied involvement, though he made various incriminating statements to Detective Shumaker during their interview. For example, Freed indicated that the store clerk was a female. Freed also asked Detective Shumaker how he learned of the robbery, Detective Shumaker said that he found out from Freed's own mouth, and Freed then asked if Littrell was still in jail. Following the interview, Detective Shumaker obtained from Freed a DNA sample and handwriting exemplar.

Freed was later housed with inmate James Goodman. Freed told Goodman about the Village Pantry robbery and shared details about the crime. Freed said that he robbed a female clerk, wore a disguise and glove, used a knife, stole about $125, and fled to his friend's apartment. He also discussed with Goodman the letter that he wrote soliciting a hit man and confessing to the robbery. Goodman passed this information on to Detective Shumaker.

Forensic technician Daun Powers analyzed DNA swabs collected from the hat recovered near the Village Pantry. Powers could not exclude Freed as a contributor to a particular DNA sample taken from inside the hat. Or statistically speaking, about five people within the Tippecanoe County population could have contributed to the DNA sample, and Freed's DNA profile identified him as one of them.

Handwriting expert Courtney King analyzed Freed's jailhouse letter. King concluded that Freed was the probable author of the first part of the letter, in which Freed requested assistance from the supposed hit man. King was less certain about the confession, as it looked slightly different and was likely written on a different backing surface. However, according to King, indications were that Freed authored the confession as well.

Detective Shumaker reviewed the Village Pantry surveillance tape after interviewing Freed. Detective Shumaker identified Freed as the robber by matching Freed's voice with the voice recorded on the tape.

[Appellee–Respondent the State of Indiana (the “State”) ] charged Freed with Class B felony robbery and the lesser-included Class D felony theft. The State alleged that “[o]n or about July 6, 2008, in Tippecanoe County, State of Indiana, Michael G. Freed did knowingly or intentionally take property, to wit: U.S. Currency, from another person or from the presence of another person, to wit: Cora Taegel, by using or threatening the use of force on the said Cora Taegel, or by putting the said Cora Taegel in fear, and Freed committed said offense while armed with a deadly weapon, to wit: a knife....” Appellant's App. p. 10.¹

The State called Taegel, Tittrell, Goodman, King, Powers, Detective Shumaker, and several other investigating officers to testify to the foregoing events. The State introduced Freed's letter into evidence over objection.

The defense challenged Tittrell and Goodman's credibility on the stand, eliciting their criminal records for purposes of impeachment. The defense also argued in closing that their testimony was “garbage” and should be disregarded by the jury. Id. at 300.

At least twice at trial, when the jailhouse letter, Pridemore burglary, and/or murder solicitation were being discussed, the court instructed the jury that

evidence of other crimes or wrongs or acts is not admissible to prove the character of a person in order to show action and conformity therewith. It may however be admissible for other purposes such as proof of intent, knowledge, or identity. Defendant's statements are admitted only for the purpose of proving intent, knowledge or identity as to the crimes on trial and are not to be considered by you for any other purpose. The circumstances under which the statements were made may only be considered in determining the ... reliability of the statement and not as independent evidence that the defendant committed the crimes on trial.

Id. at 126, 149. The record indicates that a similar admonishment was included in the court's final instructions. See id. at 281–83.

Freed v. State, 954 N.E.2d 526, 528–30 (Ind.Ct.App.2011)

(brackets added).

[3] Within an hour of being sent to deliberate, the jury submitted the following question to the trial court: “As stated in closing argument for the Prosecutor or by the Prosecutor, is it a fact of law that voice recognition is sufficient testimony for a conviction?” Trial Tr. p. 314. Upon receiving the question, the trial court summonsed the parties to discuss the jury's question and the court's proposed answer. The trial court informed counsel that its research had “come up with four cases that indicate that the answer to that question would be yes.” Trial Tr. p. 314. The trial court indicated that it felt it appropriate to clarify for the jury and recommended either: (1) to bring the jury back into the courtroom and allow counsel the opportunity to discuss the relevant case law before the jury or (2) to send the jury's note back with the indication that “it is an accurate statement of the law.” Trial Tr. p. 315.

[4] Counsel for both Freed and the State indicated that they did not feel additional argument was necessary. Freed's counsel suggested referring the jury back to the final jury instructions without answering the jury's question. Counsel for the State indicated that he believed that it was appropriate for the trial court to respond to the jury's question.

[5] In determining how to deal with the jury's question, the trial court engaged in the following discussion with counsel:

[The Court]: In the Jackson case² , their description of the holding of the Bane case³ is as follows: Voice identification evidence is independently sufficient to sustain a conviction.

[Defense Counsel]: Again, I'm not disputing that, Your Honor, that there are cases supporting your position.

[The Court]: I'm thinking that perhaps—yeah—

[Defense Counsel]:—I'm just saying that the jurors have been instructed already and that would be our suggestion, just to have them refer to the instructions.

[The Court]: I think I have to address their point of law because I think

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