Owens v. State

• Decision Date: 14 June 2001
• Docket Number: No. 49A02-0011-PC-722.,49A02-0011-PC-722.
• Parties: Michael L. OWENS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

750 N.E.2d 403

Michael L. OWENS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A02-0011-PC-722.

Court of Appeals of Indiana.

June 14, 2001.

Susan K. Carpenter, Public Defender of Indiana, Tracy A. Nelson, Deputy Public Defender Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Eileen Euzen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Michael Owens was convicted of burglary,¹ a Class B felony, two counts of robbery,² as Class C felonies, and two counts of criminal confinement,³ as Class D felonies. He appealed and this court affirmed his convictions in Owens v. State, No. 49A02-9201-CR-8, 604 N.E.2d 1265 (Ind. Ct.App. Dec.2, 1992). Thereafter, he filed a petition for post-conviction relief. He now appeals the post-conviction court's denial of his petition and raises three issues for our review, which we consolidate and restate as follows:

I. Whether the trial court committed fundamental error when it questioned witnesses and ordered further investigation after both the State and Defense had rested.

II. Whether Owens received ineffective assistance of trial and appellate counsel.

We reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

On the night of January 18, 1991, an intruder robbed Leo and Frances Ebbing in their home, stealing a VCR, jewelry, cash, and various securities. Owens was arrested for the crimes and a bifurcated bench trial was conducted.⁴ The State presented three witnesses and then rested on September 5, 1991.

Owens and his sister Victoria were witnesses for the Defense. Owens testified that his friend Tyrell Briggs had committed the crimes. During his testimony, Owens said that Briggs came to his house early in the evening of January 18 asking for a ride to his sister's apartment. Although Owens was unable to provide the ride, he agreed to lend Briggs a coat for the cold twelve-block walk. T.R. at 129-30.⁵ Owens and Victoria both testified that they were talking to each other on the telephone when the crimes were being committed. Id. at 132, 168-70. Owens further testified that, during their conversation, he received a call on the other line from Briggs. Briggs told Owens that he had made a "sting" and needed a ride. Id. at 132-33. In trying to arrange a second ride for Briggs, Owens discovered that his address book was in the coat he had lent Briggs. Owens asked Briggs to find the address book, but Briggs stated that he had stashed the coat at his apartment complex and refused to get it.⁶Id. at 134.

Owens testified that he arranged a ride for Briggs with Freddie Willis, but became worried that his address book in the stashed coat would implicate him. Owens then went to the apartment complex to retrieve his coat. After finding the coat, and while on his way to Briggs's apartment, Owens noticed a security guard. Not wanting Willis to become involved, Owens stopped at Ethyl Wells's⁷ apartment, asked to use the phone, and called to warn Freddie Willis to stay away. Id. at 138-40. When he left, Owens left his coat in Wells's apartment.

The trial court asked Owens's attorney if she had obtained the telephone records to verify the various telephone calls. Id. at 170. When trial counsel said she had not, the trial court said it would give her an opportunity to get the records and supplement the evidence. Id. at 171-72.

Owens testified that when he was arrested, he told Detective Breen that Briggs had committed the crimes and gave Breen "his name and everything." Id. at 143. When Breen did not contact Owens, his sister Victoria left four or five messages with Breen requesting that Breen talk with Owens. Id. Breen never contacted Owens about the lead.

After both the State and Defense had rested, the trial court recalled the investigating officer, Officer Frances Ingram, to the stand and questioned him. During the questioning it was revealed that no one had ever investigated whether Briggs lived where Owens had indicated. The judge then stated, "I feel that the evidence is incomplete at this particular point. I would like to know because the Defendant has given very specific directions here as to this person ... did anybody run a prior rap sheet on a Tyrell Briggs?" Id. at 180. The prosecutor responded that Breen, who was absent from the trial because of medical leave, had run a rap sheet on Briggs and had found nothing. Id. The trial court then ordered the parties to investigate whether, on the night of the robbery, Briggs lived in the same apartment complex as Wells. The judge further ordered the Defense to obtain telephone records. Id. at 181.

During the State's case-in-chief, Ingram testified that he used a redial feature on Wells's phone to call the person to whom Owens spoke on the night of the robbery. Id. at 105. Ingram testified that, using the redial feature; he reached a man named Earl Willis, Freddie's father. After both parties rested, the trial court followed up on this information by questioning Ingram. Ingram testified as to his conversation with Earl as follows: "He stated that he had received a call from an individual he identified to me as Kelly Owens and that he was very nervous and that he needed a ride but that he could not provide one." Id. at 182.

After these follow-up questions, the trial court stated that it would take the matter under advisement to allow the parties to do more investigation. Id. at 182-83. The trial judge said that Owens had told "a pretty interesting story. Now if this was the Olympics we would have to give it about a nine and a half." Id. at 183-84.

At the trial court's request, the parties returned on September 19, 1991—two weeks after having rested their cases— with the additional information requested. Upon hearing the additional evidence, the trial court convicted Owens of burglary, two counts of robbery, and two counts of criminal confinement, and sentenced him to fifteen years' imprisonment. His conviction was affirmed on direct appeal after new appellate counsel raised a sufficiency challenge. Owens then filed for post-conviction relief, and, after a delay of over three years, post-conviction relief was denied.⁸ Owens now appeals.

DISCUSSION AND DECISION

Owens appeals from a negative judgment by the trial court on his motion for post-conviction relief. A post-conviction petition under Ind. Post Conviction Rule 1 is a quasi-civil remedy and, as such, the petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to relief. Ind. Post Conviction Rule 1(a)(5); Lambert v. State, 743 N.E.2d 719, 726 (Ind.2001); Prowell v. State, 741 N.E.2d 704, 708 (Ind.2001). Owens must now convince this court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Lambert, 743 N.E.2d at 726; Prowell, 741 N.E.2d at 708; State v. Eubanks, 729 N.E.2d 201, 205 (Ind.Ct.App.2000), trans. denied.

The purpose of a petition for post-conviction relief is to provide a means for raising issues unknown or unavailable to a defendant at the time of the original trial and appeal. Eubanks, 729 N.E.2d at 204. Post-conviction procedures do not afford the petitioner with a "super appeal." Lambert, 743 N.E.2d at 726; Eubanks, 729 N.E.2d at 204. When the petitioner has been afforded the benefit of a direct appeal, post-conviction relief contemplates a rather small window for further review. Eubanks, 729 N.E.2d at 204. Thus, in general, if an issue was available on direct appeal but not litigated, it is deemed waived. Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999).

As to Owens's first issue, the trial court questioned witnesses and requested that the parties undertake additional discovery after the State and Defense had presented all their evidence. Trial counsel did not object to the court's actions and appellate counsel did not raise the error on direct appeal. Thus, the issue would ordinarily be waived. However, in order to avoid waiver, Owens alleges that he should be granted post-conviction relief because the trial court's actions constituted fundamental error. See Bigler v. State, 732 N.E.2d 191, 194 (Ind.Ct.App.2000),

trans. denied (exceptions to waiver will be made when the claimed error is fundamental).

Fundamental error is a substantial blatant violation of basic principles rendering the trial unfair and depriving the defendant of fundamental due process. Taylor v. State, 717 N.E.2d 90, 93 (Ind. 1999); Ellison v. State, 717 N.E.2d 211, 213 (Ind.Ct.App.1999),trans. denied; see also Conner v. State, 711 N.E.2d 1238, 1246 (Ind.1999),

cert. denied, 531 U.S. 829, 121 S.Ct. 81, 148 L.Ed.2d 43 (2000) (error must be so prejudicial to the rights of the defendant as to make a fair trial impossible). Our supreme court has noted that the doctrine of fundamental error is only available in very narrow circumstances. Taylor v. State, 717 N.E.2d at 94; Poling v. State, 740 N.E.2d 872, 880 n. 5 (Ind.Ct. App.2000). Even the denial of specific constitutional rights does not always prevent waiver. Poling, 740 N.E.2d at 880 n. 5.

In post-conviction review, fundamental error only prevents waiver of Sixth Amendment claims of ineffective assistance of counsel or of issues clearly unavailable at trial or on direct appeal. Taylor, 717 N.E.2d at 94; Poling, 740 N.E.2d at 880 n. 5. Because the alleged fundamental error of the trial court's actions was available to Owens on direct appeal, we address them only as they arise through his Sixth Amendment claims of ineffective assistance of trial and appellate counsel.

Owens next alleges that his trial counsel and appellate counsel were ineffective for failing to object to these fundamental errors at trial and raise them in Owens's direct appeal.⁹ We agree. The Sixth Amendment to the Constitution of the Unites States guarantees the right of a defendant in a criminal case to the effective assistance of couns...