Reid v. State, 89A01–1208–PC–377.

• Decision Date: 08 April 2013
• Docket Number: No. 89A01–1208–PC–377.,89A01–1208–PC–377.
• Parties: Lorenzo REID and Larry Blake, a/k/a Larry Reid, Appellants–Petitioners, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

984 N.E.2d 1264

Lorenzo REID and Larry Blake, a/k/a Larry Reid, Appellants–Petitioners,

v.STATE of Indiana, Appellee–Respondent.

No. 89A01–1208–PC–377.

Court of Appeals of Indiana.

April 8, 2013.

Stephen T. Owens, Public Defender of Indiana, Kathleen Cleary, John Pinnow, Deputy Public Defenders, Indianapolis, IN, Attorneys for Appellants.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

Appellants–Petitioners Lorenzo Reid and Larry Blake seek post-conviction relief from their convictions and respective fifty-four and forty-four year sentences for murder and Class C felony attempted robbery. On September 21, 1990, Reid, Blake, and an unidentified third man were involved in an attempted robbery of a liquor store that resulted in the death of the owner of the liquor store. Following separate jury trials, both Reid and Blake were convicted of murder and Class C felony attempted robbery, and their convictions were affirmed on direct appeal. Reid and Blake subsequently requested post-conviction relief, and the instant appeal stems from the denial of these requests. Concluding that neither Reid nor Blake are entitled to post-conviction relief, we affirm the judgment of the post-conviction court.

FACTS AND PROCEDURAL HISTORY

At around 10:30 p.m. on September 21, 1990, Reid, Blake, and an unidentified male entered a liquor store in Richmond and attempted to rob the owner. Reid v. State, 719 N.E.2d 451, 453 (Ind.Ct.App.1999). “The owner exchanged gunfire with the three men and was shot three times during the encounter.” Id. “He later died.” Id.

In 1991, the State charged Reid and Blake (collectively, “Appellants”) with murder, felony murder, and Class A felony attempted robbery. Appellants were separately tried before juries in 1993, and each was convicted of murder and Class C felony attempted robbery. Reid was sentenced to an aggregate term of fifty-four years, and Blake was sentenced to an aggregate term of forty-four years. In 1994, Blake's convictions were affirmed on direct appeal in a memorandum decision. Blake v. State, 89A01–93–10–CR–341, 643 N.E.2d 991 (Ind.Ct.App. Nov. 22, 1994). On November 17, 1999, Reid's convictions were affirmed on direct appeal. Reid, 719 N.E.2d at 459.

Appellants separately filed pro se petitions for post-conviction relief (“PCR”) in 2000. They filed a joint motion for post-conviction DNA testing in 2006, as well as a second joint request in 2007. Both amended their PCR petitions in 2011. The post-conviction court conducted a joint hearing on Appellants' petitions on March 6 and 7, 2012. On August 16, 2012, the post-conviction court issued written findings and conclusions in an order denying Appellants' PCR petitions. This appeal follows.

DISCUSSION AND DECISION

Post-conviction procedures do not afford the petitioners with a super-appeal. Williams v. State, 706 N.E.2d 149, 153 (Ind.1999). Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules. Id. “If an issue was known and available, but not raised on direct appeal, it is waived.” Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001) (citing Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999)). Petitioners who have been denied PCR appeal from a negative judgment and, as a result, face a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind.2001); Collier v. State, 715 N.E.2d 940, 942 (Ind.Ct.App.1999), trans. denied.

Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002). Therefore, in order to prevail, petitioners must establish their claims by a preponderance of the evidence. Ind. Post–Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, petitioners must convince this court that the evidence, taken as a whole, “leads unmistakably to a conclusion opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind.Ct.App.2004), trans. denied. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). We therefore accept the post-conviction court's findings of fact unless they are clearly erroneous but give no deference to its conclusions of law. Id.

I. Loss or Destruction of Certain Evidence Following Conviction

Appellants contend that the post-conviction court erred in denying their request for relief because the State violated their rights under the Due Process Clause by its postconviction loss or destruction of certain evidence. In making this contention, Appellants rely on the decisions of the United States Supreme Court in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), and California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Youngbloodand Trombetta stand for the proposition that a defendant's due process rights are violated by the State's failure to preserve, or the destruction of, evidence prior to trial if the materially exculpatory value of the evidence was apparent before the destruction or the evidence was potentially exculpatory and was destroyed in bad faith. Youngblood, 488 U.S. at 57–59, 109 S.Ct. 333;Trombetta, 467 U.S. at 488–89, 104 S.Ct. 2528. However, the United States Supreme Court's subsequent decision in District Attorney's Office for the Third Judicial District v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009), indicates that an individual does not have a right under the Due Process Clause to access lost or destroyed evidence during post-conviction proceedings.

In Osborne, the defendant was convicted of kidnapping, assault, and sexual assault and his convictions were affirmed on direct appeal. 557 U.S. at 58, 129 S.Ct. 2308. The defendant subsequently sought PCR. In his request for relief, the defendant requested certain postconviction DNA testing. Id. at 59, 129 S.Ct. 2308. Eventually, the Supreme Court granted certiorari to decide whether a defendant has a right under the Due Process Clause to obtain postconviction access to the State's evidence for additional testing. Id. at 61, 129 S.Ct. 2308. The Supreme Court determined that the defendant did not have a right to obtain post-conviction access to the State's trial evidence for additional testing, holding that the Due Process Clause does not require that certain recognized pre-trial rights be extended to protecta defendant's postconviction liberty interests. Id. at 72–74, 129 S.Ct. 2308. In making this holding, the Supreme Court recognized that a criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man and that a holding to the contrary would lead to a plethora of questions relating to whether there is a constitutional obligation to preserve certain evidence following trial for potential future testing, and, if so, for how long. Id. at 68, 74, 129 S.Ct. 2308.

Here, Appellants argue that their due process rights were violated as a result of the post-conviction loss or destruction of certain DNA evidence. The evidence was available for testing and was tested prior to trial. Appellants had access to the evidence as well as the test results prior to trial, and the results of these tests, which excluded Appellants as potential sources for the DNA, were admitted at trial. In light of the Supreme Court's opinion in Osborne, we conclude that, like the defendant in Osborne, Appellants do not have a Due Process right to obtain post-conviction access to the State's evidence for additional testing. See id. at 72–74, 129 S.Ct. 2308.

Furthermore, even if we were to assume that the State did have some obligation to save certain evidence, Appellants' claim still fails. Appellants claim that the destroyed evidence was materially exculpatory rather than merely potentially useful evidence. We disagree. It is undisputed that prior tests on the evidence in question indicated that the DNA did not belong to either of the Appellants. Upon presenting the evidence at trial, the State conceded that the DNA did not belong to either of the Appellants, but rather argued that it likely belonged to their unknown accomplice. The triers-of-fact considered the fact that the DNA excluded Appellants as possible sources, but, in light of the other evidence presented by the State, found Appellants guilty of murder and attempted robbery.

In seeking PCR, Appellants do not claim that additional testing on the evidence could be any more exculpatory of their being potential sources of the DNA than the tests completed prior to trial. Instead, Appellants assert their innocence and claim that their rights under the Due Process Clause were violated by the loss or destruction of the evidence because they are unable to use newly developed DNA testing technology to find the individual responsible for the crimes. However, even assuming that additional testing could result in finding a match of the DNA evidence obtained at the crime scene, such a discovery would only be potentially useful as it would likely only identify Appellants' unknown accomplice and would not, in and of itself, prove that Appellants had not committed the crimes for which they were convicted. See generally Terry v. State, 857 N.E.2d 396, 408 (Ind.Ct.App.2006) (providing that the defendant did not have a right under the Due Process Clause to complete additional tests on the evidence post-conviction because further tests on the evidence could have established, at most, that neither defendant nor anyone connected to...