Minnick v. State

• Citation: 698 N.E.2d 745
• Decision Date: 13 July 1998
• Docket Number: No. 47S00-9008-PD-497,47S00-9008-PD-497
• Parties: William MINNICK, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Supreme Court of Indiana

Page 745

698 N.E.2d 745

William MINNICK, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 47S00-9008-PD-497.

Supreme Court of Indiana.

July 13, 1998.

Lorinda Meier Youngcourt, Evans, Dowling & Youngcourt, P.C., Indianapolis, Kevin P. McGoff, Kiefer & McGoff, Indianapolis, for Defendant-Appellant.

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Plaintiff-Appellee.

ON APPEAL FROM DENIAL OF POST-CONVICTION RELIEF JULY 13, 1998.

DICKSON, Justice.

This is an appeal from the denial of post-conviction relief. In the defendant's first trial, he was found guilty of murder, robbery, and rape, and the jury recommended the death penalty. The trial court agreed and ordered a death sentence. On appeal, the judgment was reversed and remanded

for new trial. Minnick v. State, 467 N.E.2d 754 (Ind.1984), cert. denied, 472 U.S. 1032, 105 S.Ct. 3512, 87 L.Ed.2d 642 (1985) ("Minnick I"). Upon retrial, the defendant was again found guilty of murder, robbery, and rape, but the jury recommended against the death penalty. Notwithstanding this recommendation, the trial judge ordered the death penalty imposed. We affirmed on direct appeal. Minnick v. State, 544 N.E.2d 471 (Ind.1989) ("Minnick II"). ¹ The defendant then filed for postconviction relief. After a substantial evidentiary hearing, the post-conviction court issued thorough findings of fact and conclusions of law and denied relief. The defendant now appeals from this judgment, claiming error related to the following: (1) prosecutorial misconduct; (2) ineffective assistance of counsel; (3) the trial court's use of non-statutory aggravators in imposing the death penalty; (4) the trial court's decision not to follow the jury's recommendation against the death penalty; and (5) various challenges to the facial validity of the death penalty statute. We affirm the judgment of the post-conviction court

When appealing a negative post-conviction judgment, the defendant must convince the reviewing court that the evidence is without conflict and, as a whole, leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995); Fleenor v. State, 622 N.E.2d 140, 142 (Ind.1993), cert. denied, 513 U.S. 999, 115 S.Ct. 507, 130 L.Ed.2d 415 (1994).

Prosecutorial Misconduct

The defendant contends that the post-conviction court erred in rejecting his claim that he was denied a fair trial by various acts of prosecutorial misconduct, including: failing to disclose evidence favorable to the defendant; intentionally presenting false evidence; obtaining blood samples from the defendant without a court order; intentionally violating a discovery order; and making improper argument to the jury and the court.

The defendant contends that the prosecutor withheld evidence regarding serology tests known at the time of the defendant's second trial and that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. However, following that trial, further testing erased the value to the defense of the undisclosed evidence. In spite of this fact, the defendant sought yet another trial, this time based on newly-discovered evidence. The trial court's denial of his motion was raised as an issue in the defendant's direct appeal following his second trial. After hearing oral argument therein, this Court suspended consideration of the appeal and remanded to the trial court for a limited hearing regarding the tests. After hearing evidence, the trial court found that "the new evidence would not change the outcome upon retrial." Minnick II, 544 N.E.2d at 474. This Court affirmed, holding that, "The newly-discovered serological evidence would not, therefore, be likely to produce a different result upon retrial." Minnick II, 544 N.E.2d at 471.

In his subsequent post-conviction proceeding, from which the present appeal has been taken, the defendant claimed a failure to disclose exculpatory evidence, the State's use of false evidence, and prosecutorial misconduct. The post-conviction court rejected the claim, concluding that "the Brady rule applies to exculpatory evidence" and the defendant's direct appeal in Minnick II "has already found such evidence was not exculpatory." Record at 1360. Invoking res judicata as to the issue of whether the evidence was exculpatory and would have caused a different outcome, the post-conviction court concluded that the defendant was not entitled to a windfall, was not prejudiced by not being allowed to use information which later proved to be false, and therefore was not deprived of a trial that was fair and reliable.

The defendant now contends that, in our previous review of his conviction, there was no issue raised, and thus no judicial review, of a Brady violation, the State's use of false evidence, or the cumulative effect of prosecutorial misconduct. The State responds that the defendant has forfeited these

issues by not raising them on direct appeal. Issues available to the defendant on direct appeal which are not raised are generally forfeited. Spranger v. State, 650 N.E.2d 1117, 1121 (Ind.1995); Lowery v. State, 640 N.E.2d 1031, 1036-37 (Ind.1994), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995). We agree with the State that forfeiture applies, except to the extent that these claims may support the defendant's claim of ineffective assistance of appellate counsel, which we address infra

In addition to his claim of concealment and wrongful use of serology test evidence, the defendant asserts that the prosecutor intentionally violated a discovery order, made improper arguments to the jury and to the court, and improperly obtained the defendant's blood sample after trial. He argues that these actions constitute prosecutorial misconduct which require a reversal of his convictions and sentence. Because these other issues were available on direct appeal but were not raised, the defendant's claims of prosecutorial misconduct are forfeited.

Ineffective Assistance of Counsel

The defendant alleges that he was denied the right to effective assistance of counsel by: (1) the trial court's refusal or reluctance to pay defense counsel's fees and necessary investigation or expert witness fees; (2) the failure of defense counsel to adequately prepare for the guilt phase of the trial; (3) the failure to adequately present mitigation in the sentencing hearing; and (4) the failure of appellate counsel to submit a complete record and to present claims of prosecutorial misconduct, including suppression of evidence and presentation of false evidence. ² The post-conviction court found that defense counsel's performance during the guilt phase of the trial was above the minimum standard required and, thus, the defendant was not denied the effective assistance of counsel. Although noting a deficiency of counsel during the sentencing phase, the post-conviction court found that the defendant was not prejudiced by such performance.

In the defendant's first claim of ineffective assistance, he relies on Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674, 696 (1984), ³ and United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668 (1984), to support his claim that a denial of effective representation can be presumed when certain conditions exist.

The Court in Cronic observed that limited circumstances of extreme magnitude may justify "a presumption of ineffectiveness" and such circumstances are, in and of themselves, "sufficient without inquiry into counsel's actual performance at trial." Id. at 662, 104 S.Ct. at 2048, 80 L.Ed.2d at 670. Such circumstances "are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id. at 658, 104 S.Ct. at 2046, 80 L.Ed.2d at 667. As noted by Justice Powell, Cronic stands for the proposition that, "[i]n such circumstances, the defendant is in effect deprived of counsel altogether, and thereby deprived of any meaningful opportunity to subject the State's evidence to adversarial testing." Kimmelman v. Morrison, 477 U.S. 365, 395 n. 2, 106 S.Ct. 2574, 2593-94, 91 L.Ed.2d 305, 333 (1986) (Powell, J., concurring) (emphasis added).

Cronic provides a narrow "exception" to the traditional Strickland analysis. Under Cronic, certain circumstances negate the Strickland requirement that a defendant establish both deficient performance and actual prejudice. However, if the circumstances do not give rise to a Cronic exception, the defendant must fulfill the individualized requirements of Strickland. See Cronic, 466

U.S. at 659 n. 26, 104 S.Ct. at 2047, 80 L.Ed.2d at 668

Cronic delineated three circumstances justifying this presumption: (1) the complete denial of counsel; (2) situations when counsel entirely fails to subject the State's case to meaningful adversarial testing; and (3) situations where surrounding circumstances 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." Id. at 659-60, 104 S.Ct. at 2047, 80 L.Ed.2d at 668. In the present case, the defendant argues that the trial judge's denial of funding requests for experts and his extensive delay in paying the public defender fees for the first appeal and second trial resulted in trial counsel essentially having to try the case without any compensation. These circumstances are alleged to have prevented trial counsel from providing counsel as required by the Sixth Amendment. Thus, the defendant is attempting to prove the third circumstance identified in Cronic to establish that these unfavorable conditions justify...