State v. Eubanks, 80A02-9906-PC-00419.

• Decision Date: 26 May 2000
• Docket Number: No. 80A02-9906-PC-00419.,80A02-9906-PC-00419.
• Citation: 729 N.E.2d 201
• Parties: STATE of Indiana, Appellant-Respondent, v. Anthony EUBANKS, Appellee-Petitioner.
• Court: Indiana Appellate Court

729 N.E.2d 201

STATE of Indiana, Appellant-Respondent, v. Anthony EUBANKS, Appellee-Petitioner.

No. 80A02-9906-PC-00419.

Court of Appeals of Indiana.

May 26, 2000.

Jeffrey A. Modisett, Attorney General of Indiana, Rosemary L. Borek, Deputy Attorney General, Attorneys for Appellant.

William E. Daily, Danville, Indiana, Attorney for Appellee.

OPINION

VAIDIK, Judge

The State appeals the trial court's grant of post-conviction relief vacating Anthony Eubanks' convictions for murder and criminal confinement. The trial court determined it was "reversible error" for the State to call two co-conspirators to the witness stand knowing they would refuse to testify. Eubanks cross-appeals the finding of the trial court that failure to object to this evidence was not ineffective assistance of counsel. Because we conclude that the witnesses' invocation of the Fifth Amendment did not prejudice Eubanks or result in an unfair trial, we reverse.

Facts and Procedural History

Anthony Eubanks was found guilty of murder, a felony, and criminal confinement, a class B felony. The facts underlying Eubanks' convictions were set forth by a panel of this court in his direct appeal:

On the evening of October 19, 1992, Eubanks went to the home of Darrell Heard, shot him in the head and killed him. Eubanks was angry and jealous over Heard's relationship with Jodi Scott, a former longtime girlfriend of Eubanks. Eubanks claimed that he intended only to scare Heard and did not intend to kill him.

Eubanks v. State, 643 N.E.2d 994 (Ind.Ct. App.1994). On direct appeal, this court affirmed Eubanks' conviction for murder, finding sufficient evidence of his intent to kill Heard.

Eubanks sought post-conviction relief on several grounds: (1) failure of the trial court to hold a hearing outside the presence of the jury on the witnesses' rights to invoke the Fifth Amendment; (2) the trial court's failure to admonish the jury regarding the witnesses' assertions of the Fifth Amendment; (3) prosecutorial misconduct; and (4) ineffective assistance of trial and appellate counsel. PCR Record at 12-21. The post-conviction court found that the prosecutor's calling of two witnesses to testify, knowing they would invoke the Fifth Amendment in the presence of the jury, was reversible error. The court granted relief, vacated all of Eubanks' convictions, and ordered a new trial. The post-conviction court denied relief on all other grounds asserted by Eubanks. The State now appeals the grant of relief. The defendant cross-appeals claiming the trial court erred when it failed to find ineffective assistance of counsel.

Discussion and Decision

Post-conviction proceedings do not provide defendants with a "super appeal." Conner v. State, 711 N.E.2d 1238, 1244 (Ind.1999). Rather, they provide a narrow remedy for subsequent collateral challenges to convictions. Id. The purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at the time of the original trial and appeal. Lowery v. State, 640 N.E.2d 1031, 1036 (Ind.1994) ("Post-conviction actions are special, quasi-civil remedies whereby a party can present an error which, for various reasons, was not available or known at the time of the original trial or appeal."), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995).

Standard of Review

This appeal by the State is from a judgment granting post-conviction relief. The defendant cross-appeals, however, on the trial court's finding that he received effective assistance of counsel and therefore, was not entitled to relief on that ground. Indiana Post-Conviction Rule 1(7) authorizes an appeal to be taken by either the defendant or the State. However, the applicable standard of review is not identical for both parties. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995).

Our review of a judgment granting post-conviction relief is governed by Indiana Trial Rule 52(A), which provides that "the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." See State v. Moore, 678 N.E.2d 1258 (Ind. 1997),

cert. denied, 523 U.S. 1079, 118 S.Ct. 1528, 140 L.Ed.2d 678 (1998). The "clearly erroneous" standard is a review for sufficiency of the evidence. Spranger, 650 N.E.2d at 1119. We reverse only upon a showing of "clear error"—that which leaves us with a definite and firm conviction that a mistake has been made. Id. "`[C]lear error' review requires the appellate court to assess whether `there is any way the trial court could have reached its decision.'" Moore, 678 N.E.2d at 1261. Under this standard, we defer substantially to findings of fact but not to conclusions of law. Id.

When a defendant appeals the denial of post-conviction relief, he appeals from a negative judgment because he had the burden of establishing grounds for relief at the post-conviction proceeding. See State v. Clanton, 443 N.E.2d 1204, 1205 (Ind.Ct.App.1982)

(petitioner has burden of proof at post-conviction; "Therefore, when the petition is denied, the petitioner who appeals `stands in the position of one appealing a negative judgment.'" (citation omitted)); Ind. Post-Conviction Rule 1(5). On review of an appeal from a negative judgment, the appellate court "must be convinced that the evidence as a whole was such that it leads unerringly and unmistakably to a decision opposite that reached by the trial court." Spranger, 650 N.E.2d at 1119. We will consider each party's claim in turn, applying the applicable standards of review.

I. State's Appeal

A. Waiver

Initially we note that the State argues that Eubanks has waived any claim of fundamental error as a result of the witnesses' invocations of the Fifth Amendment because defense counsel failed to raise the issue on direct appeal. While we agree with the State that generally an issue that was available but not raised on direct appeal is waived at the post-conviction hearing, see Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind.1999),

the State failed to argue waiver¹ to the post-conviction court and therefore has waived the affirmative defense. See Langley v. State, 256 Ind. 199, 267 N.E.2d 538, 541-42 (1971) ("Where ... the state, as it did in this case, chooses to meet a petitioner's allegations on their merits at the hearing, we must do likewise on appeal."); Mickens v. State, 596 N.E.2d 1379, 1381 (Ind.1992) ("Waiver is an affirmative defense to a petition for post-conviction relief. The State therefore must present a waiver claim before a court can find waiver."). Given the State's election to argue the merits in the post-conviction court, we must also base our review on the merits.

B. Fundamental Error

Indiana law recognizes both reversible and fundamental error. Reversible error requires a contemporaneous objection at trial. To demonstrate reversible error, the defendant must show that error occurred and that it was prejudicial. Lacey v. State, 670 N.E.2d 1299, 1302 (Ind. Ct.App.1991). Fundamental error, however, requires a defendant to show greater prejudice than reversible error because no objection has been made. To demonstrate fundamental error, the defendant must show that the error was so prejudicial that he "could not possibly have had a fair trial" and that the error "pervaded the climate of the proceedings below, viewed as a whole, depriving the defendant of any realistic opportunity for a fair hearing." Id. (citations omitted).

The fundamental error standard of review is the appropriate standard of review here.² Although the State did not properly plead waiver in the post-conviction proceedings when Eubanks failed to raise this issue on direct appeal, Eubanks also did not object to this issue at trial. Because he failed to object at trial, he must show fundamental error to prevail. Moore v. State, 673 N.E.2d 776, 780 (Ind. Ct.App.1996) ("When confronted with a challenged instruction not objected to at trial, any error predicated on giving of the instruction will be considered waived unless the instruction rose to the level of fundamental error."). Eubanks contends, however, that reversible error is appropriate given the State's waiver. We disagree. To conclude that fundamental error was not the appropriate standard of review would grant to Eubanks a benefit to which he would not have been entitled on direct appeal. Specifically, had Eubanks raised the issue on direct appeal, he would have had to show fundamental error because he had not objected at trial. As we noted earlier, post-conviction proceedings are a narrow remedy and do not provide defendant with a super appeal. Thus, we must determine whether the court's conclusion that the witnesses' invocations of the Fifth Amendment resulted in fundamental error is clearly erroneous.

A fundamental error is a substantial, blatant violation of basic principles of due process rendering the trial unfair to the defendant. Baird v. State, 688 N.E.2d 911, 917 (Ind.1997), cert. denied, 525 U.S. 849, 119 S.Ct. 122, 142 L.Ed.2d 99 (1998). Our supreme court has repeatedly emphasized the limited applicability of the fundamental error doctrine. See Taylor v. State, 717 N.E.2d 90, 93 (Ind.1999)

(collecting cases). In Canaan v. State, the court noted:

[W]e view this exception [ (the fundamental error doctrine) ] as an extremely narrow one, available only when the record reveals clearly blatant violations of basic and elementary principles [of due process], and the harm or potential for harm [can]not be denied. While concerns over due process do sometimes merit invocation of a fundamental error exception to the contemporaneous objection rule on direct appeal, we think its availability as an exception to the waiver rule in post-conviction proceedings is generally limited to those circumstances we set forth in Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985): "[D]eprivation of the Sixth Amendment

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