Walker v. State

• Decision Date: 12 June 2002
• Docket Number: No. 45A05-0105-PC-228.,45A05-0105-PC-228.
• Citation: 769 N.E.2d 1162
• Parties: Cleveland WALKER, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

769 N.E.2d 1162

Cleveland WALKER, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 45A05-0105-PC-228.

Court of Appeals of Indiana.

June 12, 2002.

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

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

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Cleveland Walker Jr. ("Walker") appeals the post-conviction court's denial of his petition for post-conviction relief.

We reverse and remand with instructions.

ISSUES

1. Whether the post-conviction court erred in finding that Final Instruction Number 13 was properly tendered to the jury.

2. Whether Walker's trial counsel provided effective assistance of counsel.

3. Whether Walker's appellate counsel provided effective assistance of counsel.

FACTS

This incident occurred at Victory Arms Apartment in Gary, Indiana, where Walker was a resident. On the night of April 22, 1991, Jose Moore was working the midnight shift as a security guard at the apartment complex. This complex was plagued with significant problems related to the sale of illegal drugs. In fact, Walker was scheduled to be evicted from the complex at 7:00 a.m. that morning for allegedly selling drugs. At approximately 3:00 a.m., Robin Hardeway, a close friend of the Moore family, brought Moore some food and a glucometer for his diabetes. While they were inside the security booth, Walker and Michael Wrencher approached them. Wrencher asked Hardeway for a cigarette, and she broke off half of hers and gave it to him. At that point, Walker stepped back, handed a gun to Wrencher, and began to smile. Wrencher proceeded to place the gun inside Hardeway's jacket and fired two or three shots. He then shot Moore approximately six or seven times, and then fired the last three shots through the counter of the booth, hitting Hardeway. Walker and Wrencher then fled the scene, stating "we did it good" or "we took them down". (R. 404-05). While Moore survived the shooting, Hardeway died as a result of her injuries.

On October 23, 1991, Walker was charged with murder and attempted murder, both class A felonies.¹ After a jury trial Walker was found guilty on both counts, and he was subsequently sentenced to the Department of Corrections for consecutive terms of forty years for murder and thirty years for attempted murder.

Walker v. State, No. 45A03-9303-CR-95, slip op. at 2-3, 635 N.E.2d 1162 (Ind.Ct. App. June 9, 1994).

After this court affirmed Walker's convictions, Walker filed a pro-se petition for post-conviction relief on May 3, 2000. On May 30, 2000, attorney Hope Fey entered her appearance on behalf of Walker. The State filed its answer on June 20, 2000 in which it asserted the affirmative defense of laches. On December 13, 2000, Walker amended his petition asserting that the trial court "gave fundamentally flawed jury instructions that created a mandatory presumption, shifted the burden of proof, and permitted his conviction on fewer than all essential elements of the charged crimes." (App. p. 41). In its amended answer filed on December 28, 2000, the State countered that Walker had waived his amended claim because "it was known and available on direct appeal, but not raised." (App. p. 45).

The post-conviction court held a hearing on January 9, 2001. During the hearing, Daniel Toomey ("Toomey"), Walker's trial counsel, responded to Walker's assertion that he was ineffective for failing to tender an alibi instruction or object to Final Instruction Number 13. Toomey testified that he pursued alternate theories of defense: (1) alibi; and (2) an insufficiency of evidence defense, asserting that Walker did not have the specific intent to aid Wrencher. Toomey stated, "I relied upon the jury not finding that Mr. Walker was not present; however, if they did find that he was present, then like a fallback defense would be that he didn't have any intent." (PCR Tr. p. 38). Toomey also testified that when he pursued an alibi defense he normally would tender an alibi instruction. However, he could not think of a reason why an alibi instruction was not tendered in this case. In addition, during the trial, Moore stated that (1) he was good friends with Walker prior to the shooting; (2) when he saw Wrencher, Walker was with him approximately "eighty percent of the time;" and (3) he saw Walker hand the gun to Wrencher prior to being shot. (Trial Tr. p. 334).

Likewise, Charles Stewart ("Stewart"), Walker's appellate counsel, responded to assertions that he was ineffective for not raising on direct appeal the alleged errors surrounding Final Instruction Number 13. Stewart testified that he "saw nothing there that warranted raising that as an issue." (PCR Tr. p. 47). Following the hearing, the post-conviction court took the matter under advisement.

On April 9, 2001, the post-conviction court denied Walker's petition.

DECISION

A petitioner for post-conviction relief bears the burden of proving by a preponderance of the evidence that he or she is entitled to relief. Moody v. State, 749 N.E.2d 65 (Ind.Ct.App.2001). "On appeal from the denial of a petition for post-conviction relief, we neither reweigh the evidence nor judge the credibility of the witness." Id. at 67. In order to prevail on appeal, the petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. "It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law." Id.

1. Jury Instruction

During trial, Final Instruction Number 13 was tendered to the jury as follows:

It is a fundamental principle of law that where two or more persons engage in the commission of an unlawful act, each person is criminally responsible for the actions of each other person which were a probable and natural consequence of their common plan even though not intended as part of the original plan. It is not essential that participation of any person to each element of the crime be established.

Under Indiana Law, "A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense, even if the other person:

1. has not been prosecuted for the offense;

2. has not been convicted of the offense; or

3. has been acquitted of the offense."

To aid under the law is to knowingly aid, support, help or assist in the commission of a crime. Mere presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to allow an inference of participation. It is being present at the time and place, and knowingly doing some act to render aid to the actual perpetrator of the crime.

The presence of a person at the scene of the commission of a crime and companionship with another person engaged in the commission of the crime and a course of conduct before and after the offense are circumstances which may be considered in determining whether such person aided and abetted the commission of such crime.

(App. p. 65). Walker did not object to this instruction.

In his brief, Walker argues that the post-conviction court erroneously found that Final Instruction Number 13 was a correct statement of the law on accomplice liability. Specifically, Walker argues that Final Instruction Number 13(1) created a mandatory presumption that improperly shifted the burden of proof from the State to him; (2) misled the jury concerning the elements of the crimes charged that the State had to prove beyond a reasonable doubt; and (3) failed to include the element requiring specific intent. In response, the State asserted that Walker has waived this claim because he failed to object at trial or raise it on direct appeal. In his reply brief, Walker further argues that the state cannot raise the affirmative defense of waiver because it did not raise it during the post-conviction hearing. We disagree with Walker, believing that the State may raise the affirmative defense of waiver on appeal, in this case.

"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." Mickens v. State, 596 N.E.2d 1379, 1381 (Ind.1992). However, "[i]n a post-conviction proceeding, the State may raise the affirmative defense of laches, which acts as a legitimate waiver of the petitioner's right to challenge a judgment." Lile v. State, 671 N.E.2d 1190, 1194 (Ind.Ct.App.1996). To succeed, the State must prove by a preponderance of the evidence that the petitioner unreasonably delayed in seeking relief and that the State was prejudiced by the delay. Id.

In this case, the State initially indicated that it was going to assert the affirmative defense of laches in its answer to Walker's petition for post-conviction relief. Subsequently, the State asserted the additional affirmative defense of waiver in its amended answer to Walker's amended petition for post-conviction relief. Furthermore, during the post-conviction hearing, the State pursued the affirmative defense of laches. The post-conviction court found that Walker had "delayed in the filing of his petition for post-conviction relief for a period of almost six years." (App. p. 85). However, when the post-conviction court denied Walker's petition, it also found that his petition was not barred by laches, because the State "failed to establish that it was prejudiced by the petitioner's unreasonable delay." (App. p. 85).

We have previously held that "[w]hen a post-conviction court does not find waiver and denies the petition on other grounds, if the petitioner appeals the State can argue waiver in its appellee's brief without filing a cross-appeal on the issue." Mickens,...