Taylor v. State, No. 48S02-0503-PC-127.

Docket NºNo. 48S02-0503-PC-127.
Citation840 N.E.2d 324
Case DateJanuary 17, 2006
CourtSupreme Court of Indiana
840 N.E.2d 324
Kenyan L. TAYLOR, Appellant (Petitioner below),
v.
STATE of Indiana, Appellee (Respondent below).
No. 48S02-0503-PC-127.
Supreme Court of Indiana.
January 17, 2006.

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Susan K. Carpenter, Public Defender of Indiana, Hope Fey, Deputy Public Defender, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.


Kenyan Taylor was convicted of murder as Mose Bowling's accomplice. Taylor's lawyer did not ask that the jury be told that in order for Taylor to be guilty as an accomplice, the jury had to find that Bowling had killed "knowingly or intentionally." Because of this, the Court of Appeals reversed Taylor's conviction. Following authority from several other jurisdictions, we hold that a defendant can be guilty as an accomplice even if the principal does not act "knowingly or intentionally."

Background

Kenyan Taylor and Mose Bowling went to Walter Anderson's home to demand money that Anderson allegedly owed Taylor. An argument ensued and Anderson was shot. Anderson subsequently died from a gunshot wound that penetrated his heart. Taylor was charged with and convicted of murder and sentenced to a term of 60 years imprisonment.

Taylor appealed directly to this Court, contending, among other things, that there was insufficient evidence to support his murder conviction. Taylor v. State, 676 N.E.2d 1044, 1046 (Ind.1997). Finding that the evidence "clearly support[ed]" the jury's conclusion that Taylor was guilty of murder beyond a reasonable doubt, we affirmed Taylor's conviction. Id. at 1047.

Taylor then sought post-conviction relief from his murder conviction and sentence, arguing, among other things, that he was denied effective assistance of trial counsel because counsel failed to object to accomplice liability instructions that Taylor contended were incorrect. Taylor also argued

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that he was denied effective assistance of appellate counsel because counsel failed to raise all meritorious claims. The post-conviction court denied Taylor's petition for post-conviction relief.

Taylor appealed the denial of post-conviction relief to the Court of Appeals, raising the following six issues: (1) whether he was denied a fair trial and the due process of law to which he was entitled when the state pursued an accomplice liability theory at the end of his original trial; (2) whether the content and effect of the accomplice liability instructions given at his original trial were such as to entitle him to have his conviction vacated; (3) whether he was denied the effective assistance of trial counsel to which he was entitled when counsel did not (a) object to instructions and a verdict form permitting conviction without a unanimous verdict, (b) object to an accomplice liability instruction on the basis that it omitted an essential element of the offense, and (c) tender a lesser-included accomplice liability instruction; (4) whether his sentence of 60 years was manifestly unreasonable; (5) whether he was denied the effective assistance of appellate counsel to which he was entitled because appellate counsel did not claim on direct appeal that (a) the trial court had erred in allowing the State to introduce an accomplice liability theory at the end of the trial without notice to the defense, (b) it had been fundamental error for the trial court to give improper accomplice liability instructions, and (c) Taylor's sentence was manifestly unreasonable; and (6) whether the post-conviction court committed reversible error by excluding an affidavit that Taylor contended constituted newly-discovered evidence.

The Court of Appeals found that Taylor was entitled to post-conviction relief because he was denied effective assistance of trial counsel when counsel did not oppose the accomplice liability instructions given at his original trial. Taylor v. State, 820 N.E.2d 691, 695-96 (Ind.Ct.App.2005).

The State petitioned to, and we granted, transfer. Taylor v. State, 831 N.E.2d 741 (Ind.2005). We now affirm the judgment of the post-conviction court, except as to sentencing, and remand to the trial court for a new sentencing order.

Discussion

Upon denial of post-conviction relief, Taylor raised the issues set forth above. Because the Court of Appeals found one of his claims of ineffective assistance of trial counsel to be dispositive, it did not address the other issues. Because we have granted transfer, all of the issues raised by Taylor are before us as if this appeal had initially been filed in this Court. See Ind. Appellate Rule 58(A).

I

Taylor argues that the post-conviction court improperly excluded newly-discovered evidence. At Taylor's trial, Shaun Beasley testified that he heard Taylor state, "If he don't have my money by twelve o'clock, I'm gonna kill `em.'" Tr. 933. At the post-conviction hearing, Beasley was called to testify on Taylor's behalf, but Beasley refused on Fifth Amendment grounds. Taylor then tendered an affidavit signed by Beasley, which the court refused to admit on grounds of lack of relevance and lack of proper foundation. In the affidavit, Beasley claimed that he did not hear Taylor make the statement. Taylor contends that this affidavit was newly-discovered evidence requiring a new trial.

This Court has enunciated nine criteria for admission of newly-discovered evidence.

[N]ew evidence will mandate a new trial only when the defendant demonstrates

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that: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial.

Carter v. State, 738 N.E.2d 665, 671 (Ind.2000) (citing Fox v. State, 568 N.E.2d 1006, 1007 (Ind.1991)). "This Court analyzes these nine factors with care, as `the basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized.'" Id. (quoting Reed v. State, 508 N.E.2d 4, 6 (Ind.1987)). The burden of showing that all nine requirements are met rests with the petitioner for post-conviction relief. Webster v. State, 699 N.E.2d 266, 269 (Ind.1998).

Here, Taylor has not shown that this affidavit meets all the criteria. Most notably, this affidavit would be used merely to impeach Beasley's trial testimony. Taylor argues that this evidence is not merely for impeachment because "its tendency would be to obliterate or destroy the previous evidence that Beasley gave at the trial." Br. of Petitioner-Appellant at 48 (quotations omitted). Taylor also states that the affidavit "was relevant because it tended to show that Beasley was lying at the trial." Br. of Petitioner-Appellant at 47. We do not see how using the affidavit to show that Beasley was lying at trial would not be impeachment.1

Taylor also claims that this affidavit would likely produce a different result at a new trial. He argues that "[t]hat testimony was a major piece of evidence at the trial because it supported the prosecution theory that Taylor shot Anderson `knowingly or intentionally' as required by the murder statute." Id. However, as we have stated before, there was "overwhelming evidence" of Taylor's guilt. Taylor v. State, 676 N.E.2d 1044, 1047 (Ind.1997). And although this affidavit might have weakened the State's case, Taylor has not shown that it is enough to make it probable that a different result would be produced at a new trial.

Because Taylor has failed to show that this affidavit "is not merely impeaching" and that "it will probably produce a different result at retrial," the affidavit does not qualify as newly-discovered evidence, and the post-conviction court was within its discretion to exclude it.

II

Taylor raises in his petition for post-conviction relief the following issues that were available on direct appeal: (1) whether he was denied a fair trial and the due process of law to which he was entitled when the state pursued an accomplice liability theory at the end of his original trial; (2) whether the content and effect of the accomplice liability instructions given at his original trial were such as to entitle him to have his conviction vacated; and (3) whether his sentence of 60 years was manifestly unreasonable.

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. Grey v. State, 553 N.E.2d 1196, 1197 (Ind.1990). When an issue is known and available but not raised on direct appeal, it is waived for post-conviction proceedings. Timberlake

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v. State, 753 N.E.2d 591, 597 (Ind.2001), cert. denied, 537 U.S. 839, 123 S.Ct. 162, 154 L.Ed.2d 61 (2002).

Because these three issues are matters dealing with the original trial that were known and available on direct appeal, and Taylor failed to raise them at that time, he has waived the opportunity to raise them on his petition for post-conviction relief.

III

Taylor argues that his trial counsel rendered ineffective assistance (a) by not objecting to the instructions and verdict form permitting his conviction without a unanimous verdict, (b) by failing to object to an instruction on the basis that it omitted an essential element of the offense, and (c) by failing to tender a lesser-included accomplice liability instruction.

The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution. "The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to...

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178 practice notes
  • State v. Delestre, No. 2009–175–C.A.
    • United States
    • United States State Supreme Court of Rhode Island
    • January 12, 2012
    ...in which a jury is instructed disjunctively on alternative methods by which a defendant may commit a single offense”); Taylor v. State, 840 N.E.2d 324, 333 (Ind.2006) (stating that, “while jury unanimity is required as to the defendant's guilt, it is not required as to the theory of the def......
  • State v. Martinez, No. 17333.
    • United States
    • Supreme Court of Connecticut
    • June 20, 2006
    ...(separate unanimity instruction not required when statute merely defines several different ways to commit one crime); Taylor v. State, 840 N.E.2d 324, 333 (Ind.2006) ("while jury unanimity is required as to the defendant's guilt, it is not required as to the theory of the defendant's culpab......
  • Wilson v. State, Supreme Court Case No. 19S-PC-548
    • United States
    • Indiana Supreme Court of Indiana
    • November 17, 2020
    ...sentence had a high likelihood of success, and his appellate counsel "should have challenged" his aggregate sentence. Taylor v. State , 840 N.E.2d 324, 342 (Ind. 2006). "We find that failure to do so amounted to deficient performance," and Wilson "was prejudiced and deprived a fair appeal b......
  • Isom v. State, No. 45S00–0803–DP–125.
    • United States
    • Indiana Supreme Court of Indiana
    • May 20, 2015
    ...sentence under facts where “the nature of the killings are brutal.” Brown v. State, 10 N.E.3d 1, 5 (Ind.2014) (quoting Taylor v. State, 840 N.E.2d 324, 341 (Ind.2006) ). The record makes clear that the nature of the offense is a brutal triple murder Isom committed against his own family.The......
  • Request a trial to view additional results
178 cases
  • State v. Delestre, No. 2009–175–C.A.
    • United States
    • United States State Supreme Court of Rhode Island
    • January 12, 2012
    ...in which a jury is instructed disjunctively on alternative methods by which a defendant may commit a single offense”); Taylor v. State, 840 N.E.2d 324, 333 (Ind.2006) (stating that, “while jury unanimity is required as to the defendant's guilt, it is not required as to the theory of the def......
  • State v. Martinez, No. 17333.
    • United States
    • Supreme Court of Connecticut
    • June 20, 2006
    ...(separate unanimity instruction not required when statute merely defines several different ways to commit one crime); Taylor v. State, 840 N.E.2d 324, 333 (Ind.2006) ("while jury unanimity is required as to the defendant's guilt, it is not required as to the theory of the defendant's culpab......
  • Wilson v. State, Supreme Court Case No. 19S-PC-548
    • United States
    • Indiana Supreme Court of Indiana
    • November 17, 2020
    ...sentence had a high likelihood of success, and his appellate counsel "should have challenged" his aggregate sentence. Taylor v. State , 840 N.E.2d 324, 342 (Ind. 2006). "We find that failure to do so amounted to deficient performance," and Wilson "was prejudiced and deprived a fair appeal b......
  • Isom v. State, No. 45S00–0803–DP–125.
    • United States
    • Indiana Supreme Court of Indiana
    • May 20, 2015
    ...sentence under facts where “the nature of the killings are brutal.” Brown v. State, 10 N.E.3d 1, 5 (Ind.2014) (quoting Taylor v. State, 840 N.E.2d 324, 341 (Ind.2006) ). The record makes clear that the nature of the offense is a brutal triple murder Isom committed against his own family.The......
  • Request a trial to view additional results

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