Hampton v. State , No. 84S04–1103–PC–161.

• Docket Nº: No. 84S04–1103–PC–161.
• Citation: 961 N.E.2d 480
• Case Date: February 14, 2012
• Court: Supreme Court of Indiana

961 N.E.2d 480

Kevin L. HAMPTON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).

No. 84S04–1103–PC–161.

Supreme Court of Indiana.

Feb. 14, 2012.

[961 N.E.2d 482]

Susan K. Carpenter, Public Defender of Indiana, Jonathan O. Chenoweth, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Transfer from the Indiana Court of Appeals, No. 84A04–1002–PC–122 DICKSON, Justice.

We affirm the denial of the defendant's post-conviction claim of ineffective assistance of appellate counsel but hold that an instruction on the requirement of proof beyond a reasonable doubt does not obviate the necessity, where the conduct of the defendant constituting the commission of a charged offense is proven exclusively by circumstantial evidence, of an additional jury instruction advising the jury that proof by circumstantial evidence must be so conclusive and sure as to exclude every reasonable theory of innocence.

[961 N.E.2d 483]

The defendant was convicted of murder, rape, and criminal deviate conduct following the brutal death of D.L. in Terre Haute, Indiana, in 2000. On direct appeal, the defendant challenged the sufficiency of evidence, the denial of his motion for mistrial, and the structure and length of his sentence, but he did not claim ineffective assistance of counsel. The Court of Appeals affirmed the convictions and resulting sentences. Hampton v. State, 873 N.E.2d 1074 (Ind.Ct.App.2007), trans. not sought. The defendant next sought post-conviction relief asserting that his appellate counsel's failure to challenge the refusal of a tendered instruction constituted an unconstitutional deprivation of his right to the effective assistance of counsel. The post-conviction court denied relief, finding that the trial court refused the tendered instruction because it believed that the State presented direct evidence at trial, namely DNA evidence. Findings of Fact, Conclusions of Law and Order, Appellant's App'x at 76. Additionally, the post-conviction court found Indiana precedent unclear regarding the question as to whether DNA evidence is “direct” or “circumstantial” evidence, id. at 81–83, and concluded that the decision of the defendant's appellate counsel to pursue other issues on direct appeal did not constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Findings of Fact, Conclusions of Law and Order, Appellant's App'x at 76.

In appealing a denial of post-conviction relief, the defendant has asserted a single claim: that his appellate attorney rendered constitutionally ineffective assistance of counsel by failing to assert on direct appeal that the trial court erred in refusing, over defense objections, to instruct the jury that “[w]here proof of guilt is by circumstantial evidence only, it must be so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence.” See Ind. Pattern Jury Instruction—Criminal 12.01 (Indiana Judges Association, 2d ed. 1991) (emphasis added).¹ (This instruction has often previously been given using the word “hypothesis” instead of “theory,” but we favor “theory” as more understandable to jurors. See, e.g., 2 W.W. Thornton, Instructions to Juries §§ 2312–2313 (1914).) The defendant's post-conviction argument is based on the premise that the DNA evidence presented in his case was not direct but circumstantial evidence, thus compelling the use of the rejected instruction. The DNA evidence, collected from vaginal swabs and from the victim's tank top, was consistent with a profile of the defendant's DNA “to a degree of scientific certainty.” Trial Tr. at 527, 1001. The State has responded with multiple arguments: (a)

[961 N.E.2d 484]

that the defendant's appellate counsel properly omitted this issue on appeal because his trial counsel had referred to the DNA evidence at issue as direct rather than circumstantial evidence, and thus the issue was waived and not available for appellate challenge; (b) that it was reasonable for defense trial counsel to view the DNA evidence as direct evidence, and, therefore, an appellate challenge to this view would have little likelihood of success; (c) that, because the challenged instruction is not required when there is direct eyewitness identification or a defendant's confession, it should not be required when there is DNA evidence for the same reasons; and (d) that, even if the appellate defense counsel's performance was deficient, no prejudice resulted because the jury was otherwise properly instructed on reasonable doubt.

The Court of Appeals affirmed the denial of post-conviction relief, believing that the “instruction on proof beyond a reasonable doubt ... nicely covered the issue and rendered harmless any potential error” in refusing the tendered instruction. Hampton v. State, 936 N.E.2d 1274, 1276–77 (Ind.Ct.App.2010). Although we ultimately reject the defendant's claim of post-conviction court error, we granted transfer to provide clarification for the bench and bar regarding the “reasonable theory of innocence” instruction because we disagree with the Court of Appeals that the giving of a conventional reasonable doubt instruction renders unnecessary the giving of the “reasonable theory of innocence” instruction.

1. Instructing Juries to Use Caution when Evidence is Circumstantial A. Need for a Special Instruction

The importance of a “reasonable theory of innocence” instruction is deeply imbedded in Indiana jurisprudence. Nichols v. State, 591 N.E.2d 134, 136 (Ind.1992) (citing Sumner v. State, 5 Blackf. 579 (Ind.1841)). Our cases have long recognized the need for such an instruction where appropriate. See, e.g., Gambill v. State, 675 N.E.2d 668, 675 (Ind.1996); Lloyd v. State, 669 N.E.2d 980, 985 (Ind.1996); Stahl v. State, 616 N.E.2d 9, 11–12 (Ind.1993); Myers v. State, 532 N.E.2d 1158, 1159 (Ind.1989); Cox v. State, 475 N.E.2d 664, 666–68 (Ind.1985); Spears v. State, 272 Ind. 634, 636–40, 401 N.E.2d 331, 334–35 (1980), overruled on other grounds by Hicks v. State, 544 N.E.2d 500 (Ind.1989); McAdams v. State, 226 Ind. 403, 412, 81 N.E.2d 671, 675 (1948); Gears v. State, 203 Ind. 400, 407–08, 180 N.E. 592, 594–95 (1932); Wolfe v. State, 200 Ind. 557, 564–68, 159 N.E. 545, 547–49 (1928); Robinson v. State, 188 Ind. 467, 470–71, 124 N.E. 489, 490 (1919); Dunn v. State, 166 Ind. 694, 696–97, 78 N.E. 198, 198–99 (1906); Hampton v. State, 160 Ind. 575, 576–77, 67 N.E. 442, 442 (1903); Wantland v. State, 145 Ind. 38, 39–40, 43 N.E. 931, 932 (1896). “[T]his Court has never departed from the conviction that the [‘reasonable theory of innocence’] standard is a proper one to be employed at the trial court and a defendant is entitled to an instruction to that effect.” Spears, 272 Ind. at 638, 401 N.E.2d at 335.

We note that a number of more recent American appellate decisions appear to place less emphasis on the need for similar instructions. See Irene Merker Rosenberg & Yale L. Rosenberg, “ Perhaps What Ye Say Is Based Only on Conjecture”—Circumstantial Evidence, Then and Now, 31 Hous. L.Rev. 1371, 1400–01 nn. 121–22 (1995) (noting that at least twenty-nine states have eliminated a specific jury instruction on circumstantial evidence).²

[961 N.E.2d 485]

This trend sprang after the United States Supreme Court's decision in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), in which the Court rejected a claim of reversible error for the refusal “to instruct [the jury] that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt.” Id. at 139, 75 S.Ct. at 137, 99 L.Ed. at 166. Without extensive explanation, the Court concluded that “the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.” Id. at 139–40, 75 S.Ct. at 137, 99 L.Ed. at 166. We understand Holland to hold that including an additional “reasonable theory of innocence” instruction is not required but not that it is constitutionally erroneous.

[T]he Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Cf. Hopt v. Utah, 120 U.S. 430, 440–41, 7 S.Ct. 614, 618–20, 30 L.Ed. 708 (1887). Indeed, so long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 320, n. 14, 99 S.Ct. 2781, 2789, n. 14, 61 L.Ed.2d 560 (1979), the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Cf. Taylor v. Kentucky, 436 U.S. 478, 485–86, 98 S.Ct. 1930, 1934–35, 56 L.Ed.2d 468 (1978). Rather, “taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.” Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954).Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583, 590 (1994) (alteration in original).

Subsequent to Holland, opinions from several states began to conclude that a “reasonable theory of innocence” instruction incorrectly suggests that circumstantial evidence is inherently less reliable.³ See, e.g., State v. Humpherys, 134 Idaho 657, 8 P.3d 652, 656–57 (2000); People v. Bryant, 113 Ill.2d 497, 101 Ill.Dec. 825, 499 N.E.2d 413, 420–21 (1986); State v. Wilkins, 215 Kan. 145, 523 P.2d 728, 737 (1974); State v. Lewisohn, 379 A.2d 1192, 1210 (Me.1977); State v. Smith, 92 N.M. 533, 591 P.2d 664, 671–72 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, 502 (1991), superseded by state constitutional amendment on other grounds as...