Rowe v. State, 84A05-9710-PC-425

• Decision Date: 29 January 1999
• Docket Number: No. 84A05-9710-PC-425,84A05-9710-PC-425
• Citation: 704 N.E.2d 1104
• Parties: John ROWE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 1104

704 N.E.2d 1104

John ROWE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 84A05-9710-PC-425.

Court of Appeals of Indiana.

Jan. 29, 1999.

Monica Foster, Hammerle Foster Allen & Long-Sharp, Indianapolis, for Appellant-Petitioner.

Jeffrey A. Modisett, Attorney General, Rosemary Borek, Deputy Attorney General, Indianapolis, for Appellee-Respondent.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Defendant John Rowe ("Rowe") appeals the denial of his petition for post-conviction relief from his convictions, after a jury trial, of Murder, a felony, and two counts of Attempted Murder, class A felonies. ¹ We reverse.

Issue

The dispositive issue may be restated as whether there is a reasonable probability that the result of Rowe's trial would have been different had the State disclosed that one of its key witnesses had previously been convicted of Burglary and Theft.

Facts/Procedural History

On July 9, 1986, Rowe, age eighteen, shot his parents and his sister. Rowe v. State, 539 N.E.2d 474, 475-76 (Ind.1989). Rowe's father and sister survived, but Rowe's mother died. Id. at 476. Rowe raised the defenses of insanity and voluntary intoxication arguing that he was not responsible due to an organic brain disorder and/or drug-induced, toxic psychosis resulting from chronic drug abuse and/or the ingestion of a large quantity of stimulants just before the shooting. Id. at 479; (R. 1017, 1026, 1404-07, 1457, 1468). ²

Rowe testified that he had used marijuana, Demerol intravenously ("IV"), "crank," cocaine, "acid," and other illegal drugs extensively since he was thirteen years-old. ³ (R. 962-67, 972, 1046). Rowe testified that he began injecting cocaine and "crank" at age fifteen. (R. 969, 972). Rowe began smoking "crack" cocaine in early 1985. (R. 970). Rowe had been disciplined in high school for using drugs. (R. 229). Rowe was discharged from the Marines for using drugs. (R. 230). Rowe had embezzled approximately $27,000.00 from his father's business in order to buy drugs. (R. 896, 925-26, 941, 958). Rowe had been committed to a psychiatric hospital in the fall of 1985. (R. 228, 231, 519, 925, 979, 1061, 1393).

Rowe testified that his lover/roommate, Stefan Hodges ("Hodges"), was also a long-term IV drug user. (R. 954, 986). Rowe testified that he and Hodges had gone on a "coke binge" and had ingested large quantities of drugs and alcohol the weekend before the shooting. (R. 954, 980, 982-1004). Rowe testified that they used alcohol, cocaine, marijuana, and crank that weekend. (R. 987, 991, 993, 995-96, 1009-10).

Rowe testified, and reported to his physicians, that he had taken a pill described as "Eve" and had injected five to ten grams of cocaine shortly before the shooting. (R. 1005, 1017-18, 1461). Rowe testified and reported that after he got to his parents' house, he began to have visual and auditory hallucinations, did not remember the shooting, and had not intended to kill any of the victims. (R. 1026, 1028, 1187, 1521). One of Rowe's experts testified that Rowe's description of his experience was "classic" for "cocaine toxic psychosis." (R. 1483).

Rowe's sister gave the following testimony about Rowe's appearance and behavior immediately before the shooting:

When I saw John, he--his eyes were as glossy as glass, his cheekbones were clenched, he had a really weird expression on his face. His eyes were just they're glaring. It didn't look like John. I mean, he just--it was--you know, he just--the way he just looked, with his eyes, you know, he just--it didn't look like John.

(R. 906). Rowe's aunt testified that Rowe's mother was quite concerned about him because he had changed shortly before the shootings. (R. 881). Rowe's mother had said "the John we knew is gone." (R. 882). Rowe's father's friend testified that he was surprised to learn about the shooting because he had known the family for twelve years and Rowe was "one of the perfect kids." (R. 897).

The State rebutted Rowe's defenses by contesting his claim that he had taken a large quantity of drugs before the shooting. (R. 1155-56, 1195-96, 1201, 1327, 1347). Rowe's psychiatric experts conceded that the validity of their opinions depended upon the accuracy of Rowe's report that he had injected a large quantity of drugs before the shooting. (R. 1330, 1427, 1436, 1440, 1492-93).

Hodges gave the most testimony of all of the State's witnesses, filling 120 pages of the transcript. (R. 708-828). Hodges contradicted Rowe's testimony by denying that he had a drug habit or had ever ingested crack or crank. (R. 769). Hodges contradicted Rowe further by testifying that they had not taken any drugs together during the weekend before the shooting. (R. 712, 720-21, 773, 779, 780-81, 791). Additionally, Hodges testified that when he saw Rowe shortly after the shooting, he did not appear to be intoxicated on drugs or alcohol. (R. 742, 755, 820). Hodges also testified that Rowe had pointed a gun at him on two occasions. (R. 762). Finally, Hodges testified that he did not want to testify against his lover but had been subpoenaed by the State. (R. 767).

The State repeatedly emphasized the portion of Hodges' testimony in which he stated that Rowe did not use drugs extensively during the weekend prior to the shooting. (R. 1556, 1630, 1730-32). The State also emphasized Hodges' testimony that Rowe did not appear to be intoxicated on drugs after the shooting. (R. 1733-34). The State argued that Hodges, as Rowe's lover, had no reason to testify falsely against Rowe. (R. 1730).

Before trial, Rowe had filed two written motions for production which had specifically requested the State to disclose the arrest and criminal records of its witnesses. (R. 63, 96). The State certified that it had complied with Rowe's discovery requests. (R. 72). However, the State did not disclose that Hodges had a criminal record. (R. 72).

Rowe was convicted of Murder and two counts of Attempted Murder and was sentenced to an aggregate term of 100 years. (R. 223; PCR. 84). Rowe's convictions were affirmed on direct appeal. Rowe, 539 N.E.2d 474. In rejecting Rowe' insanity and intoxication defenses on appeal, our supreme court noted:

[Rowe's expert] acknowledged his opinion that appellant was unable to form intent was based on the veracity of appellant's own account of his copious drug abuse prior to the shootings and that his diagnosis would be incorrect if appellant's account were not accurate. Significantly, none of the witnesses testifying as to appellant's behavior during the hours and days prior to the shootings could confirm his own account of prodigious drug abuse.

Id. at 479.

The present post-conviction petition was filed in 1990. (PCR.14). During the post-conviction proceedings, Rowe learned that Hodges had been convicted of Burglary and Theft in 1982 and had been on probation at the time of the shooting and trial. (PCR.35). In fact, Hodges had been arrested in December of 1986 in connection with probation revocation proceedings pending against him. (PCR.358). Hodges testified for the State in Rowe's trial in March of 1987. (R. 345).

Discussion and Decision

Rowe contends that the State's failure to disclose Hodges' criminal record denied him a fair trial because the convictions could have been used to impeach Hodges' credibility. The State effectively concedes error, but argues that reversal is unwarranted because "Hodges was not a critical witness, and [Rowe] would have been found guilty without his testimony." (Appellee's brief at 17).

A. Standard of Review for Post-Conviction Relief

As recently stated in Miller v. State, Ind. No. 64S00-9408-PC-00742 (December 8, 1998):

A person convicted of, or sentenced for, a crime by a court of this state has a constitutional right to appeal that conviction or sentence directly to either [the supreme court] or the Court of Appeals. Ind. Const. art. VII, §§ 5 & 6. As stated above, [the defendant] exercised his right to a direct appeal and [the supreme court] affirmed his convictions. After such an appeal, Indiana law permits the person to seek 'post-conviction relief' through a special, quasi-civil action in certain circumstances and under certain conditions. Ind.Post-Conviction Rule 1(1). See Lowery v. State, 640 N.E.2d 1031, 1036 (Ind.1994) (post-conviction remedy not substitute for appeal), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995); Weatherford v. State, 619 N.E.2d 915, 916 (Ind.1993) (post-conviction procedures do not provide 'super appeal').

To the extent that a person seeking post-conviction relief (usually referred to as the 'petitioner') has been denied relief by the post-conviction court, the petitioner appeals from a negative judgment. This is because at the trial on the petition for post-conviction relief, the petitioner has the burden of establishing any grounds for relief by a preponderance of the evidence. P-C.R. 1(5). Such is [defendant's] situation here. When a petitioner appeals from a negative judgment, he or she must convince the appeals court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the trial court. [The appeals court] will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion.

(Slip op. at 2-3) (some citations omitted).

B. Felon Witness Testimony

The credibility of a felon-witness is highly suspect. Ferguson v. State, 670 N.E.2d 371, 374 (Ind.Ct.App.1996), trans. denied. The jury's estimation of the truthfulness and reliability of a witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Ferguson, 670 N.E.2d at 374. The...