Rouster v. State, 45S00-9304-PD-408

• Citation: 705 N.E.2d 999
• Decision Date: 19 February 1999
• Docket Number: No. 45S00-9304-PD-408,45S00-9304-PD-408
• Parties: Gregory ROUSTER, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Supreme Court of Indiana

Page 999

705 N.E.2d 999

Gregory ROUSTER, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 45S00-9304-PD-408

Supreme Court of Indiana.

Feb. 19, 1999.

James N. Thiros, Merrillville, Indiana, Alan M. Freedman, Carol R. Heise, Chicago, Illinois, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

SHEPARD, Chief Justice.

A jury found Gregory Rouster guilty of felony murder for killing his former foster parents, John and Henrietta Rease. In accordance with the jury's recommendation, the court sentenced Rouster to death. On direct appeal, we affirmed. Rouster v. State, 600 N.E.2d 1342 (Ind.1992). Rouster filed a petition for post-conviction relief challenging his conviction and sentence. The post-conviction court denied the petition. In this appeal, Rouster asserts numerous claims which we consolidate and review as follows:

I. Ineffective assistance of counsel;

II. Systemic defects in the Lake County public defender system;

III. False evidence;

IV. Pre-sentence psychological profile; and

V. Post-conviction due process.

Facts

The facts of this case may be found in our direct appeal opinion. See id. at 1344-46.

Standard of Review

Post-conviction procedures do not afford the petitioner with a super-appeal. 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. Ind.Post-Conviction Rule 1(1); Weatherford v. State, 619 N.E.2d 915 (Ind.1993). Petitioners bear the burden of establishing their grounds by a preponderance of the evidence. P-C.R. 1(5); Weatherford, 619 N.E.2d at 917. If an issue was known and available but not raised on appeal, it is waived. If it was raised on appeal but decided adversely, it is res judicata. Lowery v. State, 640 N.E.2d 1031 (Ind.1994), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995).

When one is appealing the negative judgment of a post-conviction court, the standard of review is even more rigorous. Petitioners must show that the evidence, when taken as a whole, "leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court." Weatherford, 619 N.E.2d at 917.

I. Ineffective Assistance of Counsel

The right to effective assistance of trial and appellate counsel has been firmly established by the U.S. Supreme Court and by this Court. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); see King v. State, 467 N.E.2d 726 (Ind.1984). In his post-conviction petition, Rouster listed several claims asserting trial counsel ineffectiveness. The post-conviction court found these claims were waived due to appellate counsel's failure to raise the issues on direct appeal. While this case has been pending, we have decided that claims of ineffective assistance of trial counsel may be raised in collateral proceedings. Woods v. State, 701 N.E.2d 1208 (Ind.1998). Accordingly, we address these claims on the basis urged by Rouster.

We analyze claims of ineffective assistance of trial and appellate counsel under the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on an ineffective assistance of counsel claim, one must show both deficient performance and resulting prejudice. A deficient performance is a performance that falls below an objective standard of reasonableness. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Douglas v. State, 663 N.E.2d 1153 (Ind.1996). Prejudice exists when a defendant/petitioner shows "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Cook v. State, 675 N.E.2d 687 (Ind.1996).

Even if the prisoner succeeds in showing a reasonable probability the results would have been different, he must also show his conviction was fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Games v. State, 690 N.E.2d 211 (Ind.1997), modifying Games v. State, 684 N.E.2d 466 (Ind.1997). A fair trial has been denied a defendant when his "conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unreliable." Canaan v. State, 683 N.E.2d 227, 229 (Ind.1997), cert. denied, --- U.S. ----, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998). A claimant must offer strong and convincing evidence to overcome the presumption that counsel prepared and executed an effective defense. Burris v. State, 558 N.E.2d 1067 (Ind.1990), cert. denied, 516 U.S. 922, 116 S.Ct. 319, 133 L.Ed.2d 221 (1995).

Rouster claims his trial counsel were ineffective for the following reasons: at pre-trial proceedings and during the guilt phase of trial, counsel failed to file a motion for severance, failed to engage in important discovery, ¹ and failed to present expert testimony on the issue of whether Rouster was acting in self-defense; during the sentencing phase, counsel failed to investigate and present additional mitigating evidence and failed to make a new request for separate sentencing trials. Rouster also asserts that errors in penalty phase instructions constitute both ineffective assistance of counsel and fundamental error. The only claim Rouster makes regarding ineffective assistance of appellate counsel is that appellate counsel were ineffective for failing to raise the issue of ineffectiveness of trial counsel. We review each of Rouster's claims and any cumulative effects of the alleged errors in the following subsections. ²

A. Counsel's Pre-trial and Guilt Phase Performance. Rouster argues his counsel were ineffective during the pre-trial and guilt phase periods of his trial for failing to file a motion to separate trials and for failing to offer evidence on self-defense.

1. Motion for Separate Trials

Rouster and co-defendant Darnell Williams were tried together and both were convicted of two counts of felony murder. See Rouster, 600 N.E.2d at 1344. Prior to trial, Williams' counsel sought to have Williams and Rouster tried separately but the trial court denied the motion as it contained no specific facts or allegations to put the court on notice of any mutually antagonistic defenses. Id. at 1346. Rouster's counsel did not file a pretrial motion nor did he make a subsequent motion for separate trials at the close of evidence, though such motions were possible under Ind.Code § 35-34-1-12(a), (b). On direct appeal, Rouster's attorney alleged the trial court erred in failing to try the two defendants separately. Rouster, 600 N.E.2d at 1344, 1346. We held that Rouster had waived the issue due to his failure to comply with the separate trials statute. Id. at 1346. Rouster now re-casts the issue as a matter of ineffective assistance of counsel.

Defendants have no absolute right to a separate trial or severance, but they may ask the trial judge to exercise her discretion to grant such a motion. Lampkins v. State, 682 N.E.2d 1268 (Ind.1997), modified on reh'g by 685 N.E.2d 698 (Ind.1997). An abuse of discretion occurs when a court denies a defendant's properly filed motion for separate trials and the parties' defenses are mutually antagonistic to such a degree that acceptance of one party's defense precludes the acquittal of the other. Id. at 1272 (citing Underwood v. State, 535 N.E.2d 507 (Ind.1989), cert. denied 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 206 (1989)). A defendant is not, however, entitled to a separate trial merely because a co-defendant implicates that defendant. ³ Id. We initially consider the events that actually occurred at trial to determine whether a motion for separate trials indeed should have been granted, had it been filed. Id. (citing Hopper v. State, 539 N.E.2d 944 (Ind.1989)).

At trial, Rouster's co-defendant Williams argued that the State had not proven its case against him beyond a reasonable doubt. To create doubt in jurors' minds, Williams implicated Rouster as the lone killer. He argued Rouster had a motive, that he was "settl[ing] a score." (T.R. at 2529.) He also argued that the facts showed that only Rouster could have fired the shots which killed the Reases. (T.R. at 2532-34.) Rouster counter-argued that blood found on Rouster's back proved that he was facing away from the victims at the time shots were fired and thus Williams must have actually fired the shots. (T.R. at 2565-66.) Rouster also argued that he was too intoxicated to form the intent to murder. (T.R. at 2569-73.) At the close of Rouster's argument, the trial judge gave defendants Williams and Teresa Newsome an additional fifteen minutes each "for response to the presentation by the defendant Rouster." ⁴ (T.R. at 2593.)

A substantial portion of both Williams' and Rouster's defense theories centered around the assertion by each that the other fired the fatal shots. It would have been well within the trial judge's discretion to grant a motion for separate trials under Ind.Code § 35-34-1-11, had such a motion been filed. It would not, however, have been an abuse of discretion to deny the motion. Our standard, enunciated in Underwood, 535 N.E.2d at 514, provides trial judges with substantial leeway in deciding whether to grant a motion for separate trials. ⁵ To show an abuse of discretion, one must demonstrate that acceptance of one party's defense precludes the acquittal of the other. Id. Here, Williams could have been acquitted if the jury accepted his argument that the State had not proven beyond a reasonable doubt that he had been sufficiently involved in the robbery and killing of the Reases to be culpable under Ind.Code § 35-42-1-1(2), while Rouster could have been acquitted on the...