State v. Azania

• Citation: 865 N.E.2d 994
• Decision Date: 10 May 2007
• Docket Number: No. 02S03-0508-PD-364.,02S03-0508-PD-364.
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. Zolo Agona AZANIA, Appellee (Defendant below).
• Court: Supreme Court of Indiana

865 N.E.2d 994

STATE of Indiana, Appellant (Plaintiff below), v. Zolo Agona AZANIA, Appellee (Defendant below).

No. 02S03-0508-PD-364.

Supreme Court of Indiana.

May 10, 2007.

Steve Carter, Attorney General of Indiana, Stephen R. Creason, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Jessie A. Cook, Deputy Public Defender, Terre Haute, IN, Michael E. Deutsch, Deputy Public Defender, John L. Stainthorp, Erica Thompson, Chicago, IL, Attorneys for Appellee.

Indiana Black Caucus, Center for Constitutional Rights, Center for Justice in Capital Cases, Charles Hamilton Houston Institute for Race and Justice, Criminal Justice Institute, Illinois Association of Criminal Defense Lawyers, National Conference of Black Lawyers, National Lawyers Guild, National Legal Aid & Defender Association, Andrea D. Lyon, Chicago, IL, Monica Foster, Indianapolis, IN, Attorneys for Amici Curiae.

On Interlocutory Appeal

SULLIVAN, Justice.

In prior proceedings, this Court affirmed Zolo Agona Azania's conviction for the 1981 murder of a Gary police officer but set aside the recommendations of two juries that he should receive the death penalty. The trial court has now ruled that, given circumstances caused by the long delay in this case, Azania's constitutional rights to a speedy trial and due process would be violated if the State continues to seek a death sentence. We find that neither the delay nor any prejudice that Azania may suffer from it violates his constitutional rights. The State may continue to seek the death penalty.

Background

This case's history began with the killing of Gary Police Lieutenant George Yaros during a 1981 bank robbery.¹ The State charged Defendant Zolo Agona Azania, then known as Rufus Lee Averhart, and two other men with murder and sought the death penalty. The defendants' request for a change of venue from Lake County was granted to Allen County.

Under Indiana's death penalty statute, a capital trial is divided into two principal stages. Ind.Code § 35-50-2-9 (2006). During the first, the State bears the burden of proving the accused guilty beyond a reasonable doubt of murder. If the accused is found guilty of murder, a second stage follows during which the State again has the burden of proving beyond a reasonable doubt certain facts justifying a death sentence. The judge pronounces the sentence after this second stage is completed. Although the statute refers to the first stage as the "trial stage" and the second as the "sentencing hearing," id. at § 9(d), they are commonly referred to as the "guilt phase" and "penalty phase," respectively, of the trial and we will use that parlance in this decision.

At the guilt phase trial, the jury found Azania and his co-defendants guilty. At the penalty phase trial, the jury recommended that only Azania be sentenced to death; the trial court subsequently did so. We affirmed both the conviction and sentence. Averhart v. State, 470 N.E.2d 666 (Ind.1984).

Indiana law permits collateral challenges to convictions and sentences by means of requests for "post-conviction relief." Ind. Post-Conviction Rule 1. Azania successfully employed this procedure with respect to his death sentence, which this Court vacated, but not his murder conviction, which we affirmed. We remanded the case to the trial court for a new penalty phase. Averhart v. State, 614 N.E.2d 924 (Ind.1993).

At the new penalty phase trial, the jury again recommended that Azania be sentenced to death and the trial court again did so. We affirmed the newly-imposed death sentence, Azania v. State, 730 N.E.2d 646 (Ind.2000), but subsequently vacated it after Azania again successfully sought post-conviction relief. We again remanded the case to the trial court for a new penalty phase. Azania v. State, 778 N.E.2d 1253 (Ind.2002).

Further proceedings at the trial court followed, including our appointment of Boone Circuit Court Judge Steve David to preside over the case as Special Judge. In early 2005, Azania asked the trial court to bar the state from seeking the death penalty in the new penalty phase because of the prejudice he would suffer due to the passage of time. The trial court granted Azania's motion and prohibited the state from seeking the death penalty in the new penalty phase. It is on the State's appeal of the trial court's order that Azania's case is before us again.

Discussion

I

The trial court concluded that the delay from the date of the killing of Lt. Yaros to the currently pending penalty phase "establishe[d] speedy trial and due process violations." (Trial Court Order ¶¶ 13 & 14, Appellant's App. at 928-29.) It held that "fundamental constitutional principles of fairness, due process and speedy justice" bar the State from continuing to seek that Azania be sentenced to death. (Trial Court Order ¶ 19, Appellant's App. at 930.)

This Court has been previously presented with and rejected claims that delay has violated a capital defendant's constitutional right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution. See Bieghler v. State, 839 N.E.2d 691, 697-98 (Ind.2005); Moore v. State, 771 N.E.2d 46, 54 (Ind.2002) (noting that such claims have become known as "Lackey claims" from Justice Stevens's suggestion in Lackey v. Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (memorandum respecting denial of certiorari), that such a claim is important and would benefit from the attention of lower and state courts to test its viability). It appears that no Lackey claim has been successful. See Knight v. Florida, 528 U.S. 990, 992-93, 120 S.Ct. 459, 145 L.Ed.2d 370 (1999) (Thomas, J., concurring in denial of certiorari); id. at 993, 120 S.Ct. 459 (Breyer, J., dissenting from the denial of certiorari).

But Azania says he makes no Eighth Amendment or "Lackey" claim in this appeal. He contends instead that the delay in his case has violated the Speedy Trial Clause of the Sixth Amendment² and Due Process Clause of the Fourteenth Amendment³ of the U.S. Constitution.⁴ This appears to be a novel claim in capital litigation. Azania points us to no case where it has been asserted; we have found only two.⁵

To put this claim in context, we begin with a few observations about the role of delay in criminal jurisprudence generally and capital litigation in particular.

There is no question but that delay can infringe upon the speedy trial and due process rights of individuals accused or convicted of committing crimes: delay between the commission of the crime and indictment;⁶ delay between indictment and arrest;⁷ delay between arrest and trial;⁸ delay between trial and sentencing;⁹ delay in processing appeals;¹⁰ delay between appellate court decision and subsequent retrial;¹¹ and delay between appellate court decision and subsequent resentencing proceeding.¹² Nor is this an exhaustive list.¹³

But there is another side to the delay coin. As the United States Supreme Court itself has observed, delay "may work to the accused's advantage." Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Court in Barker continued:

Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. Thus, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself.

Id. The Barker Court went on to quote its earlier decision in an Indiana case, United States v. Ewell:

"[I]n large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself."

Barker, 407 U.S. at 521 n. 15, 92 S.Ct. 2182 (quoting United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)).

The foregoing observations relate to criminal litigation generally. Delay is a particular fact of life in capital litigation. It was in large part to eliminate unwarranted delay in capital litigation that this Court adopted Post-Conviction Rule 1(12), requiring successive petitions for post-conviction relief in capital cases to be approved by this Court prior to filing. So too Congress in adopting the Antiterrorism and Effective Death Penalty Act of 1996. See Williams v. Taylor, 529 U.S. 362, 386, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (Stevens, J.). Judge Kosinski and Mr. Gallagher are undoubtedly correct when they observe, "The simple fact is the process takes so long because there is a concerted effort afoot to slow it down, and because our legal system requires scrupulous review before a death sentence can be carried out." Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res. L.Rev. 1, 25 (1995).

It is in this context — that those accused and convicted of crimes enjoy constitutional protections against delay but that delay is often sought as a tactical matter by defendants, especially defendants in capital cases — that we examine Azania's claims.

In consequence of this Court's remand order in 2002, Azania is entitled to a new penalty phase trial in which a jury would be convened to consider whether or not it believes that he should be sentenced to death. He contends that allowing the State to seek a death sentence in a new penalty phase trial would violate his speedy trial and due process rights because evidence that supports his case is no longer available and because the jury would likely focus on future dangerousness. As noted above, the trial judge...