Madden v. State, No. 49A02-9503-PC-132

Docket NºNo. 49A02-9503-PC-132
Citation656 N.E.2d 524
Case DateOctober 19, 1995
CourtCourt of Appeals of Indiana

Page 524

656 N.E.2d 524
Darren MADDEN, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 49A02-9503-PC-132.
Court of Appeals of Indiana.
Oct. 19, 1995.
Transfer Denied Dec. 13, 1995.

Page 525

Susan K. Carpenter, Public Defender, Richard Denning, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Attorney General, James A. Joven, Deputy Attorney General, Indianapolis, for appellee.

OPINION

KIRSCH, Judge.

Darren Madden was convicted of attempted rape, 1 a Class A felony, confinement, 2 a Class B felony, robbery, 3 a Class B felony, and burglary, 4 a Class A felony. Madden appeals the denial of his petition for post-conviction relief, raising the following issues:

1. Whether the trial court violated Madden's due process right to be present at every stage of the proceedings by communicating with the jury in his absence?

2. Whether the trial court violated the prohibition against double jeopardy by enhancing each of Madden's felonies on the basis that he was armed with a deadly weapon?

3. Whether Madden received ineffective assistance of trial and appellate counsel?

We affirm.

FACTS AND PROCEDURAL HISTORY

On August 22, 1986, Barbara Miller answered her front door. A young man asked Miller if she needed her grass cut. When Miller declined, the man got on his bicycle and rode away.

Approximately forty-five minutes later, the man returned, entered Miller's house, grabbed her, beat her with the butt end of a knife, and told her he wanted all of her money. After Miller pointed out her wallet, the man forced her into the bedroom, pulled off her clothes, and threw her onto the bed. Miller kicked her attacker in the groin, and the man left the bedroom and the house, taking Miller's wallet with him.

Shortly after the incident, Miller was shown composite pictures. She identified Madden as her assailant. A photo array containing Madden's picture was prepared and subsequently introduced into evidence during Madden's trial. During deliberations, the jury sent a note to the judge requesting the photo array. Without notifying the parties, the trial judge denied the jury's request. Madden was subsequently convicted on all counts and was sentenced to fifty years on each of the Class A felonies and to twenty years on each of the Class B felonies.

Our supreme court affirmed Madden's conviction and sentence in his direct appeal. 5 Madden filed a petition for post-conviction relief. The post-conviction court denied Madden's petition, and this appeal followed.

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, § 5; Barker v. State (1993), Ind.App., 622 N.E.2d 1336, 1337, trans. denied. To succeed on appeal

Page 526

from the denial of relief, the post-conviction petitioner must show that the evidence is without conflict and leads only to a conclusion opposite that of the trial court. Id.

The purpose of post-conviction relief is not to provide a substitute for direct appeal, but to provide a means for raising issues not known or available to the defendant at the time of the original appeal. McBride v. State (1992), Ind.App., 595 N.E.2d 260, 262, trans. denied. If an issue was available on direct appeal but not litigated, it is waived. Id.

An exception to the doctrine of waiver arises when errors are so blatant and serious that to ignore them would constitute a denial of fundamental due process, i.e., fundamental error. Id. The fundamental error doctrine permits a reviewing court to consider the merits of an improperly raised error if the reviewing court finds that the error was so prejudicial to the rights of the appellant that he could not have had a fair trial. Owens v. State (1989), Ind.App., 543 N.E.2d 673, 675.

I.

Jury Communication

During its deliberations, the jury requested to see the photo array which had been admitted into evidence. The trial court denied the request. Madden argues that fundamental error occurred when the trial court failed to inform Madden of the request. He states that since the jury could have had doubts as to Miller's credibility in identifying Madden as her attacker, he should have been afforded the opportunity to question the jurors. Madden further argues that the right to be present during all critical stages of a criminal proceeding is a fundamental right and can not be waived.

When jurors request guidance from the court during deliberations, the proper procedure is for the judge to notify the parties so they may be present in court before the judge communicates with the jury, and the judge should inform the parties of his proposed response to the jury. Marsillett v. State (1986), Ind., 495 N.E.2d 699, 709. An inference of prejudice arises from a judge's ex parte communication to the jury, and this inference creates a rebuttable presumption that error has been committed. Id. If this inference is rebutted, however, the error is deemed harmless. Id.

In Marsillett, our supreme...

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31 practice notes
  • Wallace v. Davis, Cause No. IP95-0215-C-B/S (S.D. Ind. 11/14/2002), Cause No. IP95-0215-C-B/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 14, 2002
    ...763 N.E.2d 441, 443 (Ind. 2002). If an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App. 1995). However, waiver of an issue may be avoided if the failure to present an issue on direct appeal was due to the ineffect......
  • Ward v. Wilson, Case No. 3:12-cv-00192-RLY-WGH
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • September 22, 2015
    ...763 N.E.2d 441, 443 (Ind. 2002). If an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App. 1995).Conner v. Anderson, 259 F.Supp.2d 741, 750 (S.D.Ind. 2003)(quoting Smith v. State, 774 N.E.2d 1021, 1022 (Ind.Ct.App. 2......
  • Conner v. Anderson, IP 99-1023-C-B/S.
    • United States
    • U.S. District Court — Southern District of Indiana
    • January 15, 2003
    ...763 N.E.2d 441, 443 (Ind. 2002). If an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App.1995). However, waiver of an issue may be avoided if the failure to present an issue on direct appeal was due to the ineffecti......
  • Boyko v. Parke, No. 1:97cv042 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 21, 1999
    ...the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Madden v. State, 656 N.E.2d 524, 525 (Ind. Ct.App.1995), trans. denied. In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence ......
  • Request a trial to view additional results
31 cases
  • Wallace v. Davis, Cause No. IP95-0215-C-B/S (S.D. Ind. 11/14/2002), Cause No. IP95-0215-C-B/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 14, 2002
    ...763 N.E.2d 441, 443 (Ind. 2002). If an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App. 1995). However, waiver of an issue may be avoided if the failure to present an issue on direct appeal was due to the ineffect......
  • Ward v. Wilson, Case No. 3:12-cv-00192-RLY-WGH
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • September 22, 2015
    ...763 N.E.2d 441, 443 (Ind. 2002). If an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App. 1995).Conner v. Anderson, 259 F.Supp.2d 741, 750 (S.D.Ind. 2003)(quoting Smith v. State, 774 N.E.2d 1021, 1022 (Ind.Ct.App. 2......
  • Conner v. Anderson, IP 99-1023-C-B/S.
    • United States
    • U.S. District Court — Southern District of Indiana
    • January 15, 2003
    ...763 N.E.2d 441, 443 (Ind. 2002). If an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App.1995). However, waiver of an issue may be avoided if the failure to present an issue on direct appeal was due to the ineffecti......
  • Boyko v. Parke, No. 1:97cv042 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 21, 1999
    ...the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Madden v. State, 656 N.E.2d 524, 525 (Ind. Ct.App.1995), trans. denied. In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence ......
  • Request a trial to view additional results

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