Taylor v. State

• Decision Date: 01 October 1999
• Docket Number: No. 49S02-9810-PC-542.,49S02-9810-PC-542.
• Citation: 717 N.E.2d 90
• Parties: Demetrius TAYLOR, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

717 N.E.2d 90

Demetrius TAYLOR, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 49S02-9810-PC-542.

Supreme Court of Indiana.

October 1, 1999.

Susan K. Carpenter, Public Defender of Indiana, Victoria Christ, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Chris Worden, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee .

ON PETITION TO TRANSFER

DICKSON, J.

The defendant, Demetrius Taylor, was convicted of rape, a class A felony;¹ criminal confinement, a class B felony;² and burglary, a class B felony.³ The defendant appealed, and the Court of Appeals affirmed in a memorandum decision. The defendant thereafter sought post-conviction relief, which was denied, and the defendant appealed. The Court of Appeals reversed. Taylor v. State, 699 N.E.2d 270 (Ind.Ct.App.1998). We granted the State's petition to transfer.

On transfer, we review the claims as presented to the Court of Appeals. Ind. Appellate Rule 11(B)(3). We will affirm a denial of post-conviction relief unless the defendant establishes that the evidence is without conflict and, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. Woods v. State, 701 N.E.2d 1208, 1210 (Ind.1998). Although conclusions of law receive no deference on appeal, id., as to factual matters, we examine only the probative evidence and reasonable inferences that support the post-conviction court's determination and do not reweigh the evidence or judge the credibility of the witnesses, Butler v. State, 658 N.E.2d 72, 75 (Ind.1995); Lowery v. State, 640 N.E.2d 1031, 1037 (Ind.1994).

In this appeal from the denial of post-conviction relief, the defendant seeks relief on two grounds. He first alleges that a deputy prosecuting attorney and a state's witness improperly commented on his silence after he was arrested and given Miranda warnings. Second, he contends that his sentences for both rape and criminal confinement violate the federal and state Double Jeopardy Clauses. The defendant asserts that these two grounds each constitute fundamental error and, alternatively, that they result from the ineffective assistance of appellate counsel.

The post-conviction court determined that the issue regarding comment on post-arrest silence, to the extent that it was raised on direct appeal as a matter of prosecutorial misconduct, was barred by the doctrine of res judicata, and that, to the extent that it may not have been raised on direct appeal as a violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1975), it was procedurally defaulted and does not constitute fundamental error. As to the double jeopardy claim, the post-conviction court addressed the merits, finding that the victim's trial testimony clearly established circumstances showing a confinement beyond that inherent in the force used to effectuate the rape, and concluded that the two convictions did not violate double jeopardy principles. The post-conviction court also concluded that the defendant did not receive ineffective assistance of appellate counsel.

1. Comment on Post-Arrest Silence

The defendant contends that the post-conviction court erred in rejecting his claims that the State improperly referred to the defendant's post-arrest, post-Miranda silence. To support his claim, he identifies four instances in the trial record. In the first incident, the defendant's objection was sustained, and the State withdrew the question. The trial court then admonished the jury that "each person has a right not to testify or discuss anything with the lieutenant or anyone else" and instructed the jury to disregard the offensive question. Record at 452. As to the other claimed incidents, objections were overruled. In his direct appeal, these instances were presented to support a claim of prosecutorial misconduct, but the defendant's appellate counsel did not specifically claim a Doyle violation in the State's attempts to use his post-arrest, post-Miranda silence to impeach his testimony that the victim had consented to sexual intercourse. In the post-conviction proceedings, the defendant asserted that the State's attempts to use his post-Miranda silence to impeach his consent defense denied him the constitutional rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution.⁴ He argues that this constitutes fundamental error and thus should not be subject to procedural default for his failure to assert the claim on direct appeal.

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); Collins v. State, 567 N.E.2d 798, 801 (Ind.1991); Wilson v. State, 514 N.E.2d 282, 284 (Ind. 1987). A Doyle claim may constitute fundamental error. Wilson, 514 N.E.2d at 284. However, demonstrating the denial of any specific constitutional right does not alone resurrect a forfeited claim. Baird, 688 N.E.2d at 917. See also Brady v. State, 575 N.E.2d 981, 987 (Ind.1991) (right to meet witnesses face to face); Brockway v. State, 502 N.E.2d 105, 108 (Ind.1987) (admission of defendant's statement upon arrest); Reynolds v. State, 460 N.E.2d 506, 508 (Ind.1984) (right to be present when trial court communicates with deliberating juror); Crosson v. State, 274 Ind. 247, 249, 410 N.E.2d 1194, 1195 (1980) (defendant's right not to testify); and Malo v. State, 266 Ind. 157, 162, 361 N.E.2d 1201, 1204-05 (1977) (alleged improper comment upon Fifth Amendment privilege to remain silent).

We have emphasized the narrow applicability of the fundamental error doctrine. See, e.g., Coleman v. State 703 N.E.2d 1022, 1036 (Ind.1998) (applies to only the most blatant denials of elementary due process); Ford v. State, 704 N.E.2d 457, 461 (Ind.1998) (available only when there are blatant violations of basic and elementary principles of due process, and the harm or potential for harm cannot be denied); Stevens v. State, 691 N.E.2d 412, 420 n. 2 (1997) ("should be a rare, rather than merely an alternative, claim"); Barany v. State, 658 N.E.2d 60, 64 (Ind.1995) (it must be so prejudicial to the rights of a defendant as to make a fair trial impossible). This Court recently directed:

[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." Warriner v. State, 435 N.E.2d 562, 563 (Ind.1982). 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 right to effective assistance of counsel, or ... an issue demonstrably unavailable to the petitioner at the time of his [or her] trial and direct appeal."

Canaan v. State 683 N.E.2d 227, 235-36 n. 6 (Ind.1997).

Considering the context and marginal significance of the incidents that comprise the defendant's Doyle claim, the substance of the trial court's admonishing remarks to the jury, and the strong evidence of guilt, we find both that the record does not reveal a clear, blatant violation of basic and elementary principles of due process and that the claimed resulting harm to the defendant is doubtful. We thus decline to apply the fundamental error exception to the rule of procedural default.

The defendant next claims that this issue is available for review because he was denied the right to counsel due to appellate counsel's constitutionally deficient performance in failing to raise the Doyle claim. We review claims of ineffective assistance of appellate counsel using the same standard applicable to claims of trial counsel ineffectiveness. Lowery, 640 N.E.2d at 1048. Thus, the defendant must establish: (1) that appellate counsel's performance failed to meet an objective standard of reasonableness under prevailing professional norms at the time of trial; and (2) that the deficient performance constituted a "breakdown in the adversarial process that rendered the result of the proceeding fundamentally unfair or unreliable." Coleman v. State, 694 N.E.2d 269, 272 (Ind.1998); Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180, 189 (1993); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The failure to establish either prong will cause the claim to fail. Brown v. State, 698 N.E.2d 1132, 1142 (Ind.1998). In this case, neither prong is shown.

Ineffectiveness is rarely found when the issue is failure to raise a claim on direct appeal. Bieghler v. State, 690 N.E.2d 188, 193-94 (Ind.1997). "`The decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel.'" Id. (quoting Lissa Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. Va. L.Rev. 1, 26 (1994)). We give considerable deference to appellate counsel's strategic decisions and will not find deficient performance in appellate counsel's choice of some issues over others when the choice was reasonable in light of the facts of the case and the precedent available to counsel at the time the decision was made. Bieghler, 690 N.E.2d at 194. We review the totality of appellate counsel's performance to determine whether the defendant received constitutionally adequate assistance. Id. The defendant's brief on direct appeal presented seven issues, which the Court of Appeals consolidated and addressed as follows: (1) error in waiving the defendant to adult court; (2) error in...