Lyons v. State

• Decision Date: 06 October 1992
• Docket Number: No. 49A02-9112-PC-553,49A02-9112-PC-553
• Citation: 600 N.E.2d 560
• Parties: Hugh LYONS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. 1
• Court: Indiana Appellate Court

Page 560

600 N.E.2d 560

Hugh LYONS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A02-9112-PC-553. ¹

Court of Appeals of Indiana First District.

Oct. 6, 1992.

Rehearing Denied Dec. 7, 1992.

Richard Kammen, McClure, McClure & Kammen, Indianapolis, for appellant-petitioner.

Linley E. Pearson, Atty. Gen. of Indiana and Arthur Thaddeius Perry, Deputy Atty. Gen., Indianapolis, for appellee-respondent.

STATEMENT OF THE CASE

RATLIFF, Judge.

Hugh Lyons appeals from the denial of his petition for post-conviction relief following his conviction for Robbery, ² a Class C felony and the finding that he is an habitual offender. ³ We affirm.

ISSUES

We restate the issues as follows:

1. Was there a Brady ⁴ violation when the State failed to provide Lyons with a photograph taken at the time of Lyons' arrest?

2. Was there a violation of Batson ⁵ when the trial court removed the only black juror from the jury panel?

3. Did the trial court err in failing to give defendant's tendered instructions numbers 1 and 2 regarding identification evidence?

4. Did fundamental error occur during the habitual offender stage of trial when trial counsel failed to tender and the trial court failed to give an instruction defining "prior unrelated felony"?

5. Was Lyons denied his right to effective assistance of appellate counsel?

FACTS

On February 10, 1984, Lyons attacked William Knelanger, the victim, in downtown Indianapolis. Lyons hit the victim in the side, threw him to the ground, took his wallet, and left. The victim walked to the Greyhound bus station where he saw Lyons enter a taxi cab. He reported the robbery to the bus station security officer and told the officer that Lyons left in the taxi cab. The officer notified the police. The taxi driver took Lyons to a restaurant at 16th and Illinois streets. The police arrived shortly thereafter. The taxi driver told the police that Lyons was walking toward Meridian Street. The police stopped Lyons one block away. The victim arrived in a police car and identified Lyons. A police officer then placed Lyons under arrest and read him his rights. Lyons stated that this time he was really in trouble. Trial Record at 368. ⁶

The State filed a two count information against Lyons. Lyons was tried by a jury and found guilty of robbery and was also found to be an habitual offender. Lyons was sentenced to thirty-five years' imprisonment. Our supreme court affirmed Lyons' conviction on direct appeal. Lyons v. State (1987), Ind., 506 N.E.2d 813, 817.

On February 27, 1990, Lyons filed a petition for post-conviction relief which was amended on February 1, 1991. A hearing was held on the petition. After taking matters under advisement, the court denied Lyons' petition. Lyons now appeals.

DISCUSSION AND DECISION

Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, Sec. 5; St. John v. State (1988), Ind.App., 529 N.E.2d 371, 374, trans. denied. Thus, to succeed on appeal from the denial of his petition, Lyons must show that the evidence is without conflict and leads only to a conclusion opposite that of the trial court. See id. The post-conviction court is the sole judge of the weight of the evidence and the witnesses' credibility. Silvers v. State (1986), Ind., 499 N.E.2d 249, 251. We find that Lyons has not sustained his burden.

Issue One

Lyons asserts that at trial there was a deliberate obstruction of exculpatory evidence. More specifically, he contends the State failed to produce a photograph taken at the time of his arrest, which did not match the description of Lyons as given by the victim and police investigator Don Wright ("Detective Wright").

Suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either as to guilt or punishment irrespective of the good or bad faith of the prosecution. House v. State (1989), Ind., 535 N.E.2d 103, 106 (citing Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215). Impeachment evidence, as well as, exculpatory evidence falls within the Brady rule. Id. at 107. As we have previously noted, there are three types of cases in which the State's duty to disclose evidence to a defendant comes into question:

"(1) cases in which undisclosed evidence demonstrates that the State's case included perjury; (2) cases in which the defendant has made a pre-trial request for specific evidence; and, (3) cases in which the defendant made only a general request for discovery, or no request at all."

Battle v. State (1986), Ind.App., 498 N.E.2d 57, 61 (citing United States v. Agurs (1976), 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342). A conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is "any reasonable likelihood that the false testimony reasonably affected the judgment of the jury." Agurs, 427 U.S. at 103, 96 S.Ct. at 2397, 49 L.Ed.2d at 349-50.

In the case at bar, Detective Wright interviewed Lyons on the morning after his arrest. Initially when asked if Lyons had a beard at the time of his arrest, Detective Wright stated on cross-examination, "No, I don't believe he had a beard." Trial Record at 392. Detective Wright was later called as a defense witness. Once again he was asked if Lyons had any facial hair other than a mustache and the following exchange took place between Detective Wright and defendant's counsel:

"A. Yes, sir, I do believe he had some facial hair on his chin.

Q. Would you describe it as a gootee [sic]?

A. Yes, probably a small gootee [sic].

....

Q. How did he appear on the day you interviewed him, the day just after he was arrested?

A. If I remember right, he had a mustache and he had hair on his chin and some on the side here, I don't remember it going all the way up to his hair, on the side like it is now."

Trial Record at 415 and 428. At the post-conviction hearing, Detective Wright testified that he had seen the photograph taken at the time of Lyons' arrest sometime prior to trial. Record at 163 and 166. On cross-examination, Detective Wright stated that the photograph showed Lyons had a "light beard." Record at 167. Lyons asserts that Detective Wright's failure to describe Lyons' facial hair as a "full beard" at trial is important because the victim had described his attacker as having a mustache and no beard. Trial Record at 337. Hence, Detective Wright's testimony worked to corroborate the victim's identification testimony. We do not agree with Lyons' characterization of Detective Wright's testimony as perjury.

Detective Wright did not deny that Lyons had some facial hair, not only a mustache but also some hair on his chin. Lyons is merely quibbling over a definition of terms. In his Appellant's brief, Lyons refers to the photograph as depicting him with a "full beard"; whereas, at the post-conviction hearing Detective Wright, looking at the same photograph, stated that he would describe it as a "light beard." Appellant's Brief at 23-24; Record at 167. In any event, as the State points out, Lyons' beard was clearly not a long beard. See Record 120. At trial Detective Wright was testifying from his memory. The fact that he did not label what he remembered a "beard" does not show that Detective Wright committed perjury. His testimony at trial does not raise any inferences from which it could be inferred that he testified falsely.

Lyons also contends that the State withheld the photograph despite a specific discovery request for its production. The trial court record does not reflect a specific request for the photograph. Although Lyons did make a specific request for both copies of the criminal histories of all of State's witness and copies of information relating to the felony convictions for the habitual offender charge, no specific written or oral request for the photograph was made on the record prior to or during trial. See Trial Record at 54. The only evidence that is before this court of a specific request for the photograph was trial counsel's testimony at the post-conviction hearing. See Record at 117, 137-38. Assuming Lyons' counsel did specifically request the photograph, Lyons has not shown that the photograph was material as to his guilt. See House, 535 N.E.2d at 106. "[I]mplicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial." Agurs, 427 U.S. at 104, 96 S.Ct. at 2398, 49 L.Ed.2d at 350. Subsequently to Agurs, in United States v. Bagley (1985), 473 U.S 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494, the United States Supreme Court set forth the appropriate standard of review in all instances of prosecutorial failure to disclose evidence: "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result would have been different."

In the case at bar, the victim observed Lyons for several minutes, and watched him enter a taxi cab at the Greyhound bus station. Trial Record at 321 and 335-336. The taxi cab driver stated that he had picked Lyons up at this location. Trial Record at 351-52. Lyons was then traced through the taxi cab driver to the point where he was apprehended by the police a very short time later. Lyons was identified by both the taxicab driver and the victim. Trial Record at 338-39, 352, and 354-55. The victim indicated at the show-up identification, minutes after the attack, and in the trial court that he had no doubt Lyons was the person who robbed him. Trial Record at 338-39. After being placed under arrest and read his rights, Lyons stated that he was really in trouble this time. Trial Record at 368. Lyons has not shown there was no reasonable probability that had the photograph been disclosed to the defense, the result of his trial would have been different. See House, 535...