State v. Holmes

• Decision Date: 19 May 2000
• Docket Number: No. 49S00-9808-PD-436.,49S00-9808-PD-436.
• Parties: STATE of Indiana, Defendant-Appellant, v. Eric D. HOLMES, Plaintiff-Appellee.
• Court: Indiana Supreme Court

728 N.E.2d 164

STATE of Indiana, Defendant-Appellant, v. Eric D. HOLMES, Plaintiff-Appellee.

No. 49S00-9808-PD-436.

Supreme Court of Indiana.

May 19, 2000.

Jeffrey A. Modisett, Attorney General of Indiana, Michael A. Hurst, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellant.

Susan K. Carpenter, Public Defender of Indiana, Steven H. Schutte, Joanna Green, Kathleen Cleary, Linda K. Hughes, Deputy Public Defenders, Indianapolis, Indiana, Attorneys for Appellee/Cross-Appellant. DICKSON, Justice.

This appeal is from a judgment granting in part and denying in part the post-conviction relief sought by Eric D. Holmes. He was convicted of two counts of murder¹ for the intentional killing of Charles Ervin and Theresa Blosl, one count of attempted murder,² one count of robbery,³ and one count of conspiracy to commit robbery.⁴ The jury could not reach a unanimous recommendation for or against the death penalty. After a sentencing hearing, the trial court sentenced the defendant to death for the intentional murder of Theresa Blosl and imposed sentences for terms of years on the other counts. On direct appeal, this Court vacated the defendant's conspiracy conviction and his sentence for class A felony robbery, ordered that a sentence for class C felony robbery instead be imposed, and affirmed the imposition of the death sentence and the other convictions and sentences. Holmes v. State, 671 N.E.2d 841 (Ind.1996),reh'g denied, (1997), cert. denied, 522 U.S. 849, 118 S.Ct. 137, 139 L.Ed.2d 85 (1997). In the subsequent post-conviction proceeding, the post-conviction court partially granted the defendant's petition for post-conviction relief, vacating the death sentence for prosecutorial misconduct and ordering a remand to the trial court for a new penalty phase trial, but otherwise denied his petition. The State appeals from the post-conviction court's partial grant of post-conviction relief, and the defendant cross-appeals from the post-conviction court's partial denial of post-conviction relief. Finding error on an issue of law, we reverse the partial grant of post-conviction relief and hold that the defendant's petition for post-conviction relief should be denied.

Preliminary Considerations

Post-conviction proceedings do not afford criminal defendants the opportunity for a "super-appeal." Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985); Langley v. State, 256 Ind. 199, 210, 267 N.E.2d 538, 544 (1971). Rather, post-conviction proceedings provide defendants the opportunity to raise issues that were not known at the time of the original trial or that were not available on direct 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). Thus, these proceedings do not substitute for direct appeals but provide a narrow remedy for subsequent collateral challenges to convictions. Weatherford v. State, 619 N.E.2d 915, 916-17 (Ind.1993). The petitioner for post-conviction relief has the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

As a general rule, when this Court decides an issue on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-conviction proceedings. Lowery, 640 N.E.2d at 1037. The doctrine of res judicata prevents the repetitious litigation of that which is essentially the same dispute. Sweeney v. State, 704 N.E.2d 86, 94 (Ind.1998); Wagle v. Henry, 679 N.E.2d 1002, 1005 (Ind.Ct.App. 1997); Scott v. Scott, 668 N.E.2d 691, 699 (Ind.Ct.App.1996). Thus, a petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error. Maxey v. State, 596 N.E.2d 908, 911 (Ind.Ct.App.1992). Also, issues that were available, but not presented, on direct appeal are forfeited on post-conviction review. Spranger v. State, 650 N.E.2d 1117, 1121 (Ind.1995); Lowery, 640 N.E.2d at 1036-37. But cf. Woods v. State, 701 N.E.2d 1208 (Ind.1998) (regarding claims of ineffective assistance of trial counsel).

Indiana Post-Conviction Rule 1(7) authorizes either the defendant-petitioner or the State to take an appeal. The State on appeal claims that the post-conviction court erred in concluding that the defendant established one of his claims sufficiently to be entitled to relief, and, thus, the judgment from which the State appeals is not a negative judgment. When an appeal after a non-jury trial does not challenge a negative judgment, the applicable standard is simply that prescribed by Indiana Trial Rule 52(A):

On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, 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.

In reviewing a judgment granting post-conviction relief, our standard of review is governed by Indiana Trial Rule 52(A): "`We reverse only upon a showing of `clear error'—that which leaves us with a definite and firm conviction that mistake has been made.'" State v. Van Cleave, 674 N.E.2d 1293, 1295 (Ind.1996) (quoting Spranger, 650 N.E.2d at 1119), reh'g granted in part, 681 N.E.2d 181 (Ind.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998). Because this "clearly erroneous" standard is a review for sufficiency of evidence, we neither reweigh the evidence nor determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence. Estate of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind.1994); Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind.1994); Indianapolis Convention & Visitors Ass'n., Inc. v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 211 (Ind.1991). When a "clearly erroneous" judgment results from application of the wrong legal standard to properly found facts, we do not defer to the trial court. Van Cleave, 674 N.E.2d at 1296. Also, we are not bound by the trial court's characterization of its results as "findings of fact" or "conclusions of law"; instead, we will look past these labels to the substance of the judgment and review a legal conclusion as such even if the judgment wrongly classifies it as a finding of fact. Id. (citing Indiana State Bd. of Public Welfare v. Tioga Pines Living Ctr., Inc., 575 N.E.2d 303, 306 & n. 1 (Ind.Ct.App.1991)).

The defendant, on the other hand, to the extent that he is appealing from a denial of relief, is appealing from a negative judgment. The standard of review in appeals from post-conviction negative judgments is well established: the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. Spranger, 650 N.E.2d at 1119. The reviewing court accepts the trial court's findings of fact unless "clearly erroneous," T.R. 52(A), but does not defer to the trial court's conclusions of law, Van Cleave, 674 N.E.2d at 1295-96. The reviewing court examines only the probative evidence and reasonable inferences that support the post-conviction court's determination and does not reweigh the evidence or judge the credibility of the witnesses. Butler v. State, 658 N.E.2d 72, 75 (Ind.1995); Lowery, 640 N.E.2d at 1037.

In summarizing the difference between these two standards of review, we have indicated that these standards direct the inquiry of appellate tribunals into trial court decisions: "In one, the inquiry is essentially whether there is any way the trial court could have reached its decision. In the other, it is whether there is no way the court could have reached its decision." Spranger, 650 N.E.2d at 1120.

A. The State's Appeal

The State challenges the post-conviction court's partial grant of the defendant's petition for post-conviction relief. The State specifically argues that the court committed clear error when it concluded that the prosecutor engaged in a pattern of misconduct that placed the defendant in grave peril and that the defendant's appellate counsel was ineffective for failing to raise a claim regarding the pattern of misconduct. The State grounds its argument primarily on two bases: (1) that the defendant was barred by res judicata from raising a claim of prosecutorial misconduct; and (2) that the defendant was not deprived of the effective assistance of appellate counsel.

The post-conviction court did not apply the doctrine of res judicata. It stated: "This is not the same claim that was made on direct appeal and, therefore, consideration of this claim is not barred by prior adjudication." P.C.R. Record at 1000. The post-conviction court believed that our opinion on direct appeal merely reviewed the alleged acts of misconduct in isolation and that we failed to "set forth an analysis of the totality of the circumstances." P.C.R. Record at 1000. Proceeding to address the claim presented by the defendant, the post-conviction court concluded that a pattern of prosecutorial misconduct existed that culminated in grave peril to the defendant during the penalty phase of the trial.

Arguing in support of the post-conviction court's conclusion on this issue, the defendant asserts that our review on direct appeal focused on the penalty phase closing argument and argues that the prosecutorial misconduct, which he contends occurred throughout the entire prosecution of the case, constituted a pattern of misconduct and represented a deliberate attempt improperly to prejudice him. The defendant argues that his appellate counsel did not present to this Court on direct appeal the specific...