Harrison v. State

• Decision Date: 09 February 1999
• Docket Number: No. 65S00-9605-PD-318,65S00-9605-PD-318
• Parties: James P. HARRISON, Appellant (Petitioner below ), v. STATE of Indiana, Appellee (Respondent below ).
• Court: Indiana Supreme Court

Page 767

707 N.E.2d 767

James P. HARRISON, Appellant (Petitioner below ), v. STATE of Indiana, Appellee (Respondent below ).

No. 65S00-9605-PD-318

Supreme Court of Indiana.

Feb. 9, 1999.

Susan K. Carpenter, Public Defender of Indiana, Thomas C. Hinesley, Joanna Green, Deputy Public Defender, Robert E. Lancaster, Special Assistant to the State Public Defender, Indianapolis, Indiana, attorneys for appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, Indiana, attorneys for appellee.

BOEHM, Justice.

James P. Harrison was convicted of two counts of murder and one count of arson, as well as being an habitual offender. He was sentenced to death on both murder counts. He appeals the denial of his petition for postconviction relief, primarily challenging the effectiveness of his trial and appellate counsel. He also contends that he was denied his constitutional right to be present during the penalty phase of his trial, that the State's misconduct at trial undermined the reliability of his convictions and death sentences, and that he was denied a full and fair postconviction hearing. We affirm the trial court's denial of postconviction relief.

Factual and Procedural Background

The facts of this case are reported in Harrison v. State, 644 N.E.2d 1243 (Ind.1995). In brief, the bodies of twenty year old Stacy Forsee, her three and one-half year old daughter Tia Forsee, and her twenty-one month old son Jordan Hanmore were found in the charred remains of Stacy's home in the early morning hours of January 17, 1989. Stacy had been stabbed and the children had died in the fire. After an investigation that spanned more than two years, Harrison was charged with arson, the knowing murders of Stacy and Tia, and the felony murder of Jordan. The evidence presented at trial included the following: (1) Harrison was observed near the fire scene on the night of the murders before the fire trucks arrived; (2) Harrison had purchased kerosene days before the murders; (3) the fire had been started by a flammable liquid; (4) Harrison told fellow inmates in a Maryland jail that he had committed the crimes; and (5) DNA evidence discussed below. Id. at 1247. The jury acquitted Harrison of Stacy's murder, but found him guilty of the remaining counts. The jury recommended that Harrison be sentenced to death for the murders of both Tia and Jordan, and the trial court imposed the death sentence on both counts. We initially affirmed the convictions but remanded the case for a more specific sentencing order. The death sentences were affirmed after remand. Harrison v. State, 659 N.E.2d 480 (Ind.1995). Harrison then filed a petition for postconviction relief. After a four-day hearing, the trial court denied relief, and this appeal ensued.

At the hearing on his petition for postconviction relief, Harrison had the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Because he is now appealing from a negative judgment, to the extent his appeal turns on factual issues Harrison must convince this Court that the evidence as a whole was such that it leads unerringly and unmistakably to a decision opposite that reached by the postconviction court. Spranger v. State, 650 N.E.2d 1117 1119 (Ind.1995). We will disturb the decision only if the evidence is without conflict and leads only to a conclusion contrary to the result of the postconviction court. Id. at 1119-1120.

I. Cronic Claim

Harrison initially contends that "the circumstances under which trial counsel labored were so unfair and arbitrary that [he] was denied his right to counsel." He contends that these circumstances were sufficiently egregious that they create a presumption of ineffective assistance of counsel under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). As we recently noted in Minnick v. State, 698 N.E.2d 745, 751 (Ind.1998), Cronic provides a narrow exception to the traditional ineffective assistance of counsel analysis under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In particular, Cronic delineates three circumstances that avoid the Strickland requirement that a defendant establish both deficient performance and actual prejudice: (1) the complete denial of counsel; (2) a complete failure by counsel to subject the State's case to meaningful adversarial testing; and (3) the circumstances of the trial are such that, "although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." Minnick, 698 N.E.2d at 751-52 (quoting Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039). Harrison contends that he falls in the third category based on his view that "[t]he unique and untenable circumstances under which [his] trial lawyers labored were so restrictive as to render them helpless and thus constructively denied [him] his right to counsel."

Harrison draws our attention to several factors in support of his Cronic claim: (1) the trial court's scheduling of his case and his trial counsel's concurrent representation of another capital defendant; (2) the "disparity of resources" between the State and defense; (3) the exclusion of evidence that other people "could have" committed the crimes; and (4) the State's loss of allegedly material evidence. ¹ To prevail on this claim, Harrison must prove that the "surrounding circumstances completely deprived [him] of any meaningful opportunity to subject the State's evidence to adversarial testing." Minnick, 698 N.E.2d at 752. The postconviction court did not enter findings on the Cronic claim; accordingly, no deference to the trial court's conclusion is due under Spranger v. State, 650 N.E.2d 1117, 1119-20 (Ind.1995).

At Harrison's initial hearing on April 29, 1991, Thomas Swain and Ronald Warrum were appointed as his counsel and the trial was set for January 6, 1992, and also as a second-choice setting for November 6, 1991. The first choice setting for November 6 was another unrelated death penalty case in which Swain and Warrum were also appointed to represent the defendant Jeffrey Paul. At a pretrial conference on August 19, the State, citing concerns about the availability of two inmate "snitches" who were to testify against Harrison, requested that Harrison's case be tried on November 6 instead of Paul's. The trial court responded by continuing Paul's trial to April 1992 and advancing Harrison's to the first choice setting for November 6.

At the time of this swap of trial settings, defense counsel had been representing Harrison for three and one-half months. The swap required Swain and Warrum to shift their focus to concentrate on Harrison's case, but they still had in excess of two and one-half months to prepare for Harrison's trial. Although several motions in Paul's case were also used in Harrison's, the concurrent representation of Paul undoubtedly distracted Harrison's counsel from his defense. ² Nonetheless, "with respect to trial court's refusal to grant the defense additional time to prepare for trial ... great deference must be shown to trial courts, because of the scheduling problems they face." Cronic, 466 U.S. at 662 n. 31, 104 S.Ct. 2039. ³ Under these circumstances, neither the concurrent representation of Jeffery Paul nor the amount of time given to prepare Harrison's case justifies a presumption of prejudice under Cronic.

Next Harrison points out the "disparity" between his resources (Swain, Warrum, two paralegals who assisted in compiling records, and limited use of an investigator in Baltimore) and those of the State (detectives and forensic experts from the Indiana State Police, and a variety of resources of the Mt. Vernon Police Department, the Posey County Sheriff's Department, the Indiana State Fire Marshal's Office, the Baltimore Police Department and two DNA laboratories). In particular, he argues that defense counsel were "unable to thoroughly investigate the two snitches" because they were denied funds to travel to Baltimore or to use the investigator in Baltimore for more than twenty hours. As the trial court correctly noted at a pretrial hearing on the matter, the investigator in Baltimore was to locate the witnesses. The investigator could then record his conversations with the witnesses or counsel could speak to the witnesses on the telephone. The fact that the State's agents made several trips to Baltimore during the course of the investigation did not ipso facto compel the trial court to grant Harrison greater funds to conduct his own independent investigation there. ⁴ With the possible exception of impeaching evidence on a collateral point discussed below, Harrison does not suggest what, if anything, additional investigation in Baltimore would have produced. ⁵

The trial court granted the State's Motion in Limine that prohibited the defense from making any reference at trial to other suspects in the case. Harrison argues that this ruling denied him effective representation because it prevented him from "meaningfully present[ing] his defense of innocence." ⁶ Harrison notes that at one time investigators suspected that Charles Hanmore, Stacy's ex-boyfriend and the father of Jordan, might have committed the crimes. At the time of Harrison's trial, the standard for admissibility of evidence of other potential perpetrators was that it "must do more than cast suspicion or raise a conjectural inference that a third party committed the crime; it must directly connect the third party to the crime charged." Burdine v. State, 515 N.E.2d 1085, 1094 (Ind.1987). Harrison points to evidence that Hanmore may have wanted to reconcile with Stacy, was physically abusive and threatening to her in the past, was six weeks behind on child...