Harrison v. State

• Citation: 575 N.E.2d 642
• Decision Date: 22 July 1991
• Docket Number: No. 49A02-9006-PC-310,49A02-9006-PC-310
• Parties: David HARRISON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. 1
• Court: Court of Appeals of Indiana

Page 642

575 N.E.2d 642

David HARRISON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A02-9006-PC-310. ¹

Court of Appeals of Indiana,

Fifth District.

July 22, 1991.

Susan K. Carpenter, Public Defender, John Pinnow, Deputy Public Defender, Indianapolis, for appellant-petitioner.

Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellee-respondent.

SHARPNACK, Judge.

David Harrison appeals from the denial of his petition for post-conviction relief (P-CR). We affirm in part and reverse in part and remand to the post-conviction court.

Harrison raises three issues on appeal which we restate as two issues:

1. Whether the trial court committed reversible error by not considering as evidence testimony and affidavits of jurors regarding the existence and nature of their contact with the bailiff

2. Whether the post-conviction court's finding that Harrison did not meet his burden of demonstrating ineffective assistance of counsel was contrary to law

We publish only that part of the opinion dealing with the first issue. The resolution of the second issue does not meet the criteria for publication as a "written opinion" under Appellate Rule 15(A)(2) and will be contained in a written memorandum decision.

The following is a statement of facts most favorable to the judgment of the post-conviction court. On the afternoon of April 26, 1983, officers Ralph Severeid and Yolanda Jorman received a radio dispatch that there was a burglary in progress at a yellow house on the corner of North Alabama and East Fifteenth streets in Marion County. The officers approached a yellow apartment house on the corner of that intersection. Officer Severeid investigated the outside of the house in search of signs of forced entry, but did not find any. He and Jorman then entered the common area of the apartment house and noticed that the door to Harrison's apartment was ajar.

Severeid and Jorman knocked on the door and identified themselves as police officers. They heard a voice, which Severeid later identified as Harrison's say "come in." The officers entered the apartment and proceeded to the kitchen where they saw Harrison, Reggie Blanton and Peter Strickland. The officers saw property strewn about the apartment, including jewelry, leather coats, and kitchen utensils. One of the pair of men with Harrison had a camera in his possession.

The officers asked Harrison and his companions if they knew anything about a burglary that had taken place. The three men responded that they knew nothing of a burglary. Officer Jorman left the apartment at that point, but Severeid remained in the apartment to speak to the men. At some point, Blanton and Strickland left with the camera. Jorman received another dispatch directing her to the correct house which was another yellow house near the intersection. Jorman spoke to the victim who identified the property taken from his house. The property he described matched the property that the officers had seen in Harrison's apartment. Jorman radioed Severeid, who was still in Harrison's apartment, and relayed the information. Severeid then arrested Harrison, and Jorman brought over the victim who identified the stolen items.

The state charged Harrison with one count of burglary, one count of theft and with being an habitual offender. The court appointed Christopher Zoeller, a public defender, as counsel for Harrison. Harrison decided to proceed pro se despite the trial court's explanation of the danger involved in such representation. At trial, the court permitted Harrison to proceed pro se with Zoeller as co-counsel. Zoeller did most of the actual questioning of witnesses and also made most of the arguments. Prior to trial, Zoeller had approximately ten to fifteen phone conversations with Harrison regarding his case. Some of the conversations were quite lengthy. In addition, Zoeller met with Harrison at the jail once to discuss Harrison's case.

Zoeller filed a motion to suppress which the court denied following an evidentiary hearing. Zoeller renewed the motion to suppress at trial, and the court again denied the motion following an evidentiary hearing outside the presence of the jury.

Harrison presented several witnesses in his defense. However, Strickland did not testify. Zoeller had intended to subpoena Strickland but Strickland could not be found to be served. Strickland had been in the Marion County Jail but was released shortly before the trial. Blanton, called by the state, testified that Harrison had told him to try to sell the camera that was in his possession when he left Harrison's apartment. He also testified that Harrison told him that he had broken into the house and wanted Blanton to help carry items out of the house. Zoeller cross-examined Blanton. In addition, Zoeller subpoenaed Blanton to testify for the defense. Blanton ignored the subpoena and disappeared.

The jury convicted Harrison of theft but acquitted him of burglary. The court reconvened the jury to hear evidence on the habitual offender charge. Following the presentation of the state's case, Harrison moved for mistrial on the basis that one of the felony convictions relied upon by the state had been vacated. The court declared a mistrial without prejudice. The state then amended the habitual offender charge to exclude reference to the vacated conviction. The court convened a different jury to hear evidence on the habitual offender charge. That jury convicted Harrison of being an habitual offender. The trial court sentenced Harrison to two years on his theft conviction enhanced by thirty years pursuant to his conviction of being an habitual offender.

Zoeller filed a motion to correct error on behalf of Harrison. In it he raised several claims, including a claim that the evidence was insufficient to support the conviction of theft. Zoeller did not assert as error the denial of the motion to suppress or the denial of Harrison's sixth amendment right to compulsory process. Harrison also filed a pro se motion to correct error. The court denied both motions. Harrison's direct appeal did not raise any of the issues asserted in this appeal.

Following Harrison's conviction, Elaine Held, a juror in Harrison's trial for theft and burglary, informed Harrison that the jury had received a sheet of paper from the bailiff during deliberations. Harrison unsuccessfully attempted to contact trial counsel. He then informed his appellate counsel of this development and provided counsel with a statement by Held. Counsel informed Harrison that he could seek leave from the supreme court to have the trial court consider a P-CR petition based upon newly discovered evidence. Harrison sought permission from the supreme court which denied his motion.

Following the affirmance of his conviction by the supreme court, 496 N.E.2d 49, Harrison brought the present P-CR petition. Harrison alleged that he was denied his right to be present at all stages of the proceedings against him as well as numerous allegations of ineffective assistance of trial and appellate counsel.

At the hearing on the petition, Held testified that, during their deliberations, the jury asked the bailiff for definitions of theft. She said that the bailiff gave them written, numbered definitions of theft, one of which was "possession of merchandise." She did not recall if the definitions differed from those given by the court in its instructions. Ronald Craig, the jury foreperson, testified that the bailiff brought back information in response a request from the jury. He stated that, to the best of his recollection, the information regarded the difference between theft and burglary. Harrison also introduced into evidence a note signed by Craig which read "[w]e the jury want to know if we are restricted to the items list on attached sheet, or all items mentioned during the course of the trial." On the bottom of the note the words "cant [sic] answer" appear. Craig testified that he did not write those words.

Harrison also submitted the affidavits of four jurors. Juror Graza remembered that the bailiff brought back a piece of paper which the jury read. Juror Sherlock remembered that the jury did contact the bailiff during the deliberations, but she could not recall what information they requested or whether the bailiff brought anything to the jury room. Juror Brinsley stated that the bailiff brought back definitions of theft on two typewritten pages. Juror Sullivan stated that the bailiff gave them a copy of the instructions regarding theft that the court had read to the jury. The testimony is uncontradicted that neither Harrison nor Zoeller was notified of the above described transaction.

The post-conviction court admitted the testimony and affidavits of the jurors over the objections of the state, but took this evidence under advisement pending a final determination of its admissibility.

The two bailiffs who worked for the court at that time also testified at the P-CR hearing. Bailiff Mahern testified that he did not recall if the transaction in question occurred. He could not remember if he was even the bailiff for those particular deliberations. He testified that the words "cant [sic] answer" were not in his handwriting. Bailiff Demoss testified that the disputed handwriting was hers, but she could not recall signing the note or if she was the bailiff for those particular jury deliberations.

The court denied Harrison's P-CR petition. In its findings of fact and conclusions of law the court found that Harrison failed to prove by a preponderance of the evidence that the representation of either trial or appellate counsel fell below the required standards.

With regard to Harrison's claim that he was denied the right to be present at all stages of the criminal proceeding against him, the court found 9. That the law in Indiana is that a juror is incompetent, by testimony or affidavit, to...