Jones v. State Of Ind.

• Decision Date: 28 February 2011
• Docket Number: No. 49A02-1006-PC-687,49A02-1006-PC-687
• Parties: TYRONE L. JONES, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

TYRONE L. JONES, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 49A02-1006-PC-687

COURT OF APPEALS OF INDIANA

FILED: February 28, 2011

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE:

TYRONE L. JONES

Carlisle, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

ANN L. GOODWIN

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Mark D. Stoner, Judge

Cause No. 49G06-0204-PC-103605

MEMORANDUM DECISION-NOT FOR PUBLICATION

BROWN, Judge Tyrone Jones, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Jones raises two issues, which we revise and restate as:

I. Whether Jones was deprived of a procedurally fair post-conviction hearing; and

II. Whether Jones was denied the effective assistance of trial counsel.

We affirm.

The relevant facts as discussed in Jones's direct appeal follow:

In February 2002, Sam Alexander lived at the Lamplighter Apartments in Indianapolis. Alexander was fifty-five years old and weighed approximately 138 pounds. He walked with a limp and suffered from emphysema. Alexander and Jones used drugs together on occasion. In February 2002, Jones was thirty-three years old and weighed 230 pounds.

During the weekend of February 8, 2002, Jones and Annissa Harris were getting high on crack cocaine at Alexander's apartment. At some point, Alexander asked Jones and Harris to leave, and Harris left. Harris later saw Jones carrying Alexander's television, and when she inquired what Jones was doing with it, he stated that Alexander had "pawned it to him." Jones sold the television to a friend of Robert Crabtree. Crabtree and Harris both lived across the street from Alexander's apartment.

Harris went back to Alexander's apartment that night, and although she saw someone looking through the peephole of the door, no one answered. When she returned the next day, the door was locked and, again, no one answered. On Sunday, February 17, 2002, after noticing that Alexander's apartment lights were on all the time, Harris returned to Alexander's apartment with a friend. When she and her friend approached Alexander's door, they both smelled "a foul odor." Later that evening when she saw a police officer, Harris asked the officer to check on Alexander. At some point that weekend, Jones called Crabtree and asked him if he had a valid identification because Jones wanted to pawn a microwave.

Indianapolis Police Officer Stephen Hart arrived at Alexander's apartment and noticed a foul odor. When he could not gain entry into the apartment, he called for the fire department to bring a ladder. Once firemen arrived, they gained entry into Alexander's apartment through the back door. They discovered Alexander's body on the floor. His hands had been tied behind his back, his feet tied at the ankles, and a piece of cloth had been tied over his mouth as a gag. Alexander's body was in an advanced stage of decomposition.

On February 18, 2002, forensic pathologists at Indiana University examined Alexander's body and prepared an autopsy report for the Marion County Coroner. Dr. Dean Hawley, a forensic pathologist at IU, testified regarding the findings in that report. Specifically, he confirmed that Alexander's body was in an advanced stage of decomposition and described three types of wounds: lacerations to the head, a skull fracture which caused both carotid arteries to tear, and ligature bonding of the mouth, wrists and ankles. Dr. Hawley stated that Alexander died from blunt force injury to the head. He also stated that as a result of the skull fracture that damaged his arteries, Alexander would have experienced profuse bleeding from his ears, nose and mouth. He testified that the skull fracture was consistent with Alexander's head being struck against a concrete wall and, although possible, he doubted that the fracture would have been the result of a person's fist. He also described at great length how tight Alexander's wrists, ankles and mouth had been bound with various items, including a leather belt, an electrical cord, a cloth belt from a bathrobe, and other pieces of cloth. He stated further that Alexander could have died within minutes of sustaining the blunt force head injury.

During a police investigation, Harris identified Jones as the person who had been in Alexander's apartment when she had last seen Alexander alive.

Jones v. State, No. 49A02-0305-CR-416, slip op. at 2-4 (Ind. Ct. App. February 11, 2004) (internal citations omitted). Indianapolis Police Detective Charles Benner discovered that Jones was wanted for three warrants. On April 10, 2002, Jones was found and brought to police headquarters. Jones signed a form dated April 10, 2002, that contained an "ADVICE OF RIGHTS" and "WAIVER OF RIGHTS." State's Trial Exhibit 47. Detective Benner interviewed Jones and noticed that the soles of his shoes appeared to be the same shoe print that he saw on a pillowcase. Detective Benner asked if he could take Jones's clothing and shoes, and Jones said yes. The police also interviewed Jones twice on April 11, 2002, and Jones gave two statements.

In his first statement, Jones admitted that he had spent the weekend of February 8 at Alexander's apartment. He denied that he had taken any of Alexander's things and claimed he did not know what had happened to Alexander.

In his second statement, however, Jones stated Alexander had agreed to give Jones his television in exchange for drugs. According to Jones, at some point, Alexander wanted more drugs, became angry and came at him with a pocketknife. Jones stated that he pushed Alexander, that Alexander's head hit the wall, and that Jones then hit him in the head with his fists a few times. Alexander was unconscious, and Jones stated that he gathered his things and left. He then returned and took the television. He stated that he returned a third time and decided to bind Alexander's hands and feet and gag his mouth. He stated that he sold the television to a man who lived across the street from Alexander but denied taking the microwave.

Slip op. at 4-5.

The State charged Jones with murder, felony murder, robbery as a class A felony, and criminal confinement as a class B felony. Id. at 2. At the bench trial, Jones's counsel argued self-defense. The State moved to admit a Laboratory Examination Report dated February 27, 2003, alleging that the DNA profile from Jones's shoe matched Alexander's DNA profile. Jones's trial counsel stated "since there's no real issue about Mr. Jones' presence in the apartment on, on the day that the incidents that give rise to this charge occurred... we stipulate to" the admission of the Laboratory Examination Report. Trial Transcript at 164. Following the bench trial, the court found him guilty on all charges. Slip op. at 2. The court then merged the murder, robbery and criminal confinement counts into the felony murder count and entered judgment of conviction on felony murder. Id. The court sentenced Jones to a term of sixty-five years. Id.

On appeal, Jones argued that the State presented insufficient evidence to sustain his convictions for murder and felony murder and that the trial court erred when it imposed sentence. Id. This court affirmed. Id.

On June 25, 2004, Jones filed a petition for post-conviction relief which was withdrawn without prejudice on June 29, 2006. On January 17, 2007, Jones filed a second petition for post-conviction relief. On June 1, 2009, Jones filed a Memorandum of Law in Support of Petitioner's Amended Petition for Post-Conviction Relief. Jones alleged that his trial counsel was ineffective on ten separate grounds.

The record reveals a CCS entry dated August 28, 2008, which states that Jones filed a Request for Issuance of Subpoenas Duces Tecum on July 18, 2008, and the court denied the motion.¹ October 17, 2008, Jones filed a Motion to Reconsider Request for Subpoena Duces Tecum, and the court granted the motion and issued a subpoena duces tecum by registered mail.² The court granted Jones's request for a subpoena duces tecum and issued a subpoena to ZLB Bioplasma, Inc. The subpoena commanded ZLB Bioplasma, Inc. to produce a copy of any and all medical or business records pertainingto the donation of plasma made by Jones between February 1, 2002, and February 17, 2002. On January 7, 2009, the court received subpoenaed records from ZLB Bioplasma, Inc.

On January 16, 2009, Jones filed a Motion for Action/Subpoena Duces Tecum requesting that the court order ZLB Bioplasma, Inc. to deliver "the plasma donation records, specifically sign in sheet of time petitioner signed in...." Appellant's Appendix at 132. Jones's affidavit attached to his motion stated: "Plasma donation records are required for the post-conviction relief claim for the following reason(s): Records of Medline Plus would place petitioner there at the time State's witness claimed to have spoken to Petitioner in reference to a stolen microwave, which the Court ultimately relied upon to convict him." Id. at 142-143. On January 21, 2009, the court issued an order denying Petitioner's Motion for Action/Subpoena Duces Tecum.

On September 3, 2009, and October 29, 2009, the court held hearings on Jones's petition. On January 7, 2010, the court informed the parties that they were to submit proposed findings of fact and conclusions no later than March 31, 2010. A chronological case summary ("CCS") entry dated April 1, 2010, indicates that the State filed a motion for enlargement of time and the court extended the deadline until May 3, 2010.³ A CCS entry dated May 7, 2010, indicates that the State filed a motion for enlargement of time on May 6, 2010. The court granted the motion and indicated that the State had until May 21, 2010 to file proposed...