Stowers v. State

• Decision Date: 16 November 1995
• Docket Number: No. 49A02-9411-PC-659,49A02-9411-PC-659
• Citation: 657 N.E.2d 194
• Parties: Larry STOWERS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 194

657 N.E.2d 194

Larry STOWERS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A02-9411-PC-659.

Court of Appeals of Indiana.

Nov. 16, 1995.

Transfer Denied Jan. 24, 1996.

Susan K. Carpenter, Public Defender, Hope Fey, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Attorney General, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for appellee.

OPINION

FRIEDLANDER, Judge.

Larry Stowers appeals the denial of his petition for post-conviction relief from his conviction for Robbery, ¹ a class A felony, presenting the following issues for review:

I. Did the prosecutor's attempt to introduce evidence which had been ruled inadmissible constitute fundamental error requiring reversal?

II. Did the trial court commit fundamental error by requiring Stowers to testify from the defense table?

III. Was the evidence of identity sufficient to support the conviction?

IV. Did Stowers receive ineffective assistance of trial counsel?

V. Did Stowers receive ineffective assistance of appellate counsel?

We affirm.

The facts favorable to the judgment were set forth by our supreme court in Stowers's direct appeal as follows:

"[O]n September 14, 1983, 79 year old Edith Morris was at her Indianapolis home with her 69 year old sister-in-law, Mary Baker. While Mrs. Morris was watching television in her living room, Mrs. Baker called to her from the kitchen that someone wanted to borrow sugar. Mrs. Morris went into the kitchen and saw two black men present. During the five to ten minutes the men were present, one asked Mrs. Morris about yard work and the other, taller, one told Mrs. Morris he had just moved into the neighborhood and his mother wanted to borrow some sugar. Mrs. Morris gave them a cup of sugar.

After the two men left, Mrs. Baker remained in the kitchen while Mrs. Morris went back to watch television. The taller of the two men, identified at trial as Stowers, and another man, returned within a few minutes. Stowers and Mrs. Baker came to the living room door. Mrs. Baker said Stowers wanted to talk to Mrs. Morris. When they returned to the kitchen, Mrs. Baker was hit over the head with a pressure cooker. Stowers then beat Mrs Morris with her cane. She put her hands up to protect her face and the blows broke one of her fingers and bruised her hands and arms. He sprayed her face with chemical mace which she kept under the cushion of her davenport. Stowers kept asking for Mrs. Morris' money and car keys. Stowers ransacked the house, grabbed Mrs. Morris' purse and fled." Stowers v. State (1987), Ind., 512 N.E.2d 853, 854.

Oral argument in this cause was held at the University of Indianapolis on October 17, 1995.

I.

Detective Barry Jeffries of the Indianapolis Police Department spoke with Stowers shortly after he was arrested. At Stowers's first trial, ² Jeffries was prepared to testify that during interrogation, Stowers "shouted that he didn't beat and rob any white women", Record at 290, at a time when Jeffries had not disclosed to Stowers the race of the victims. Jeffries's proposed testimony would have been relevant to refute Stowers's claim that he had no knowledge of the crime at the time that he was arrested. When the prosecutor referred to the conversation between Jeffries and Stowers, the defense attorney objected and asked that the jury be excused. Outside the presence of the jury, the defense argued that any statements made to Jeffries were inadmissible because the State had failed to provide such statements in response to Stowers's discovery requests. The court ruled that the statement was inadmissible.

At the second trial, the State again asked Detective Jeffries about his conversation with Stowers. Following a brief discussion, the court ruled that Detective Jeffries could not testify concerning what Stowers had said about the race of the victims, explaining its ruling as follows:

"Information on a robbery, that many days after it occurred, certainly, probably, could have been available. The point I'm making is, the neighborhood, and being that close and through contact of neighbors or his family, he could have been advised that there was an investigation going on about a robbery of two white women. I don't think that necessarily carries any stigma of guilt. And, I believe it would be very slight; and I don't have to give my reasons. But, that's my thinking on the thing; so I'll sustain the objection." Record at 292.

Later, during Stowers's cross-examination, the following colloquy occurred:

"Q. The first time you learned about this robbery was October 13th, 1983, when you were arrested?

A. [Stowers] Yes, it was.

Q. Did you ever hear anything about it on the street?

A. No, I did not.

Q. How did you know the victims were white?

A. I didn't know.

Q. Do you recall making the statement to Detective Jeffries--"

Record at 319-20. At this point, Stowers's counsel interposed an objection, which the trial court sustained. Stowers argues upon PCR petition that the prosecutor "purposefully hurled that patently inadmissible evidence into the mix" and that Stowers was "thereby denied due process of law and a fundamentally fair trial." Appellant's Brief at 18. The post-conviction court ruled that Stowers waived this issue because it was available but not presented upon direct appeal.

An error which was not raised upon direct appeal but was ascertainable and available at the time, is waived for purposes of post-conviction relief. Adams v. State (1991), Ind., 575 N.E.2d 625. Stowers has framed his argument, however, in terms of fundamental error. "Fundamental error" is error that, if unrectified, would deny a defendant fundamental due process, and is not subject to waiver. Warriner v. State (1982), Ind., 435 N.E.2d 562. An error is deemed to be fundamental error if it was "so prejudicial to the defendant that he 'could not have had a fair trial', [citation omitted], [and] suggests to us an error that pervades the climate of the proceedings below, viewed as a whole, depriving the defendant of any realistic opportunity for a fair hearing." Winston v. State (1975), 165 Ind.App. 369, 332 N.E.2d 229, 232 [emphasis in original]. In order to invoke this doctrine, it is not enough that a constitutional right is implicated. Warriner, supra. Rather, in determining whether fundamental error has occurred, we consider the character of the error and its effect upon the trial as a whole. Kremer v. State (1987), Ind., 514 N.E.2d 1068.

The interjection of an evidentiary harpoon by a prosecutor has, in certain cases, been considered prosecutorial misconduct rising to the level of fundamental error. See White v. State (1971), 257 Ind. 64, 272 N.E.2d 312. In reviewing a claim of fundamental error premised upon an allegation of prosecutorial misconduct, we consider first whether there was misconduct and then whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. Dean v. State (1982), Ind., 433 N.E.2d 1172, supplemented at, 441 N.E.2d 457, cert. denied, 469 U.S. 1214, 105 S.Ct. 1188, 84 L.Ed.2d 335. "The gravity of the peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision, not the degree of impropriety of the conduct." Barger v. State (1992), Ind., 587 N.E.2d 1304, 1310.

The prosecutor sought to inform the jury that Stowers had made a statement evincing knowledge of the race of the victims at a time when Stowers claimed that he had no knowledge of the crime whatsoever. An objection was lodged after Stowers was asked about making a statement to Detective Jeffries. The objection was made not only before Stowers responded, but also before the question was finished. While the jury may have inferred that Stowers had made a statement to Detective Jeffries contradicting his claim of no prior knowledge of the crime, such was not the only reasonable inference which could have been drawn. Stowers claims the trial court should have given a curative instruction directing the jury to disregard the question. It is likely, however, that such an instruction would have called attention to the question and would have been more likely to create the inference of prior knowledge than the question itself.

The evidence proving Stowers's identity as the assailant included unequivocal identification by Mrs. Morris, who viewed the assailant face-to-face for several minutes. In view of the strength of such evidence, we conclude that the prosecutor's question, even assuming it was improper, did not contribute to the verdict. Therefore, the prosecutor's question did not constitute fundamental error and Stowers waived the issue by failing to present it upon direct appeal. Adams, supra.

II.

Before Stowers presented his case-in-chief, the court met with both parties outside of the jury's presence. The court announced: "We've established a new policy; if Mr. Stowers the Defendant, is going to testify, he will do so from Counsel table. I advised you of that; that's our policy, because of congestion around the Court Reporter, and the Jury." Record at 302-03. When Stowers was called as a witness, the court informed the jury of the policy as follows: "As a matter of policy the Defendant will testify from Defense table." Record at 310-11. Stowers posed no objection. Stowers contends that the trial court committed fundamental error in compelling him to testify from counsel table.

The trial court determined that Stowers waived this issue because it was available but not presented upon direct appeal. As with Issue I, supra, Stowers contends that the error was fundamental in nature and thus not subject to waiver. We must first determine whether the trial court erred in directing Stowers to testify from counsel table. Assuming such was error, we then must consider the character of the error and its effect upon the trial as a whole to determine whether it...