Wilkes v. State

Decision Date04 April 2013
Docket NumberNo. 10S00–1004–PD–185.,10S00–1004–PD–185.
Citation984 N.E.2d 1236
PartiesDaniel Ray WILKES, Appellant (Petitioner), v. STATE of Indiana, Appellee (Respondent).
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Stephen T. Owens, Public Defender of Indiana, Joanna Green, Steven H. Schutte, Kathleen Cleary, Deputy Public Defenders, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Stephen R. Creason, Chief Counsel, Kelly A. Miklos, Deputy Attorney General,Indianapolis, IN, Attorneys for Appellee.

DICKSON, Chief Justice.

The defendant, Daniel Ray Wilkes, has appealed the post-conviction court's denial of his claim that he was deprived of his constitutional rights to an impartial jury and effective assistance of counsel. We affirm the post-conviction court.

The defendant was convicted by a jury of the 2006 murders of Donna Claspell and her two daughters, eight-year-old Sydne Claspell and thirteen-year-old Avery Pike.1 The State sought the death penalty and, in the penalty phase of the trial, the jury found all four charged statutory aggravating circumstances and that the aggravating circumstances outweighed the mitigating circumstances but reached no agreement on a sentencing recommendation. In accordance with statute, Ind.Code § 35–50–2–9(f), the trial court then conducted the sentencing, independently found that the aggravating circumstances outweighed the mitigating circumstances, and sentenced the defendant to death. The defendant appealed, and we affirmed. Wilkes v. State, 917 N.E.2d 675 (Ind.2009).

The defendant then petitioned for post-conviction relief on various grounds. The post-conviction court denied relief on all but one of the defendant's claims, modifying the defendant's sentence from death to life imprisonment without the possibility of parole.2 While succeeding in obtaining relief from his death sentence, the defendant now appeals from the denial of his additional post-conviction request for new trial, claiming (a) that his trial counsel were constitutionally ineffective for failing to fully investigate and present certain exculpatory evidence; (b) that his trial counsel were constitutionally ineffective for failing to question a specific juror (“Juror A”) during voir dire; (c) that his trial counsel were constitutionally ineffective for inadequately preserving for appeal the defendant's objection to the trial court's time limitation on voir dire thereby depriving the defendant of an impartial jury; (d) that, by declining to fully answer two questions on the juror questionnaire, Juror A committed misconduct and deprived the defendant of his right to an impartial jury; and (e) that the post-conviction court erred in denying the defendant's motion for discovery or in camera review of materials relating to Juror A's family.

Post-conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence. Ind. Post–Conviction Rule 1(5); Ben–Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000). Post-conviction proceedings do not offer a super-appeal, [r]ather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules.” Stevens v. State, 770 N.E.2d 739, 746 (Ind.2002) (citing P.–C.R. 1(1)); Ben–Yisrayl, 738 N.E.2d at 258. Those grounds are limited to “issues that were not known at the time of the original trial or that were not available on direct appeal.” Ben–Yisrayl, 738 N.E.2d at 258. “Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata. Pruitt v. State, 903 N.E.2d 899, 905 (Ind.2009) (citing Allen v. State, 749 N.E.2d 1158, 1163 (Ind.2001)); see also Ben–Yisrayl, 738 N.E.2d at 258. Claims of ineffective assistance of counsel and juror misconduct may be proper grounds for post-conviction proceedings. See Pruitt, 903 N.E.2d at 906;Allen, 749 N.E.2d at 1164, 1166;Ben–Yisrayl, 738 N.E.2d at 259.

Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment and bears the burden of proof. Ben–Yisrayl, 738 N.E.2d at 258. Thus, 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.” Id. “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Stevens, 770 N.E.2d at 745. We review the post-conviction court's factual findings for clear error, but do not defer to its conclusions of law. Id. at 746 (citing Ind. Trial Rule 52(A)).

1. Assistance of Trial Counsel

The defendant contends that his trial counsel were constitutionally ineffective in violation of his rights under the Sixth and Fourteenth Amendments to the U.S. Constitution and Article 1, Section 13, of the Indiana Constitution in three ways: (a) that trial counsel did not fully investigate and present evidence that “casts doubt” on the State's theory during the guilt phase of his trial, Appellant's Br. at 6; (b) that trial counsel permitted an “unqualified [death penalty] juror” to be empanelled by not asking that juror any questions other than the written questionnaire, id. at 23; and (c) that trial counsel failed to adequately preserve any objection to the trial court's imposition of time limits on voir dire, id.

Claims of ineffective assistance of counsel are evaluated using the Strickland standard articulated by the U.S. Supreme Court. Ward v. State, 969 N.E.2d 46, 51 (Ind.2012); Ben–Yisrayl, 738 N.E.2d at 260. To establish ineffective assistance of counsel, a defendant must demonstrate to the post-conviction court (1) that counsel performed deficiently based upon prevailing professional norms (“reasonableness”) and (2) that the deficiency resulted in prejudice to the defendant (“prejudice”). Ward, 969 N.E.2d at 51 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)).

This standard first asks whether, “considering all the circumstances,” counsel's actions were “reasonable[ ] under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694;see also Pruitt, 903 N.E.2d at 906 (quoting Lambert v. State, 743 N.E.2d 719, 730 (Ind.2001)) (Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord that decision deference.” (alteration omitted)). Second, even if counsel's performance is deficient, the defendant must demonstrate that counsel's deficient performance actually prejudiced the defense. Ben–Yisrayl, 738 N.E.2d at 260. That is, [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “Further, counsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind.2010) (citing Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000)).

A. Investigating and Presenting Allegedly Exculpatory Evidence

The defendant contends that his trial counsel rendered constitutionally ineffective assistance by failing to fully investigate and present certain evidence of an exculpatory nature, namely: (1) testimony of two neighbors of the victims that each claimed to have seen at least one of the victims after the State's proposed timeframe for commission of the crimes by the defendant; (2) cell phones recovered in the victims' home containing call histories that purportedly conflict with the State's proposed timeframe for commission of the crimes by the defendant; and (3) a “potential alternative suspect,” Appellant's Br. at 10, who was encountered by two neighbors and the police in the vicinity of the victims' home the day before the victims were discovered.

The Strickland ineffective assistance of counsel standard “require[s] no special amplification in order to define counsel's duty to investigate.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Furthermore, on appeal in post-conviction proceedings, the defendant must demonstrate that the evidence points unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Ben–Yisrayl, 738 N.E.2d at 258.

The State's theory during the guilt phase of the defendant's trial was that the defendant committed the murders during the night or early-morning hours of Sunday, April 23, through Monday, April 24, 2006. The victims' bodies were not discovered until Wednesday, April 26, 2006. Witnesses testified that the defendant stayed in the victims' home Sunday night the 23rd but left the home at approximately 8 a.m. Monday morning the 24th. The defendant's whereabouts between leaving the victims' home on Monday morning the 24th and the time of his arrest on Wednesday the 26th were readily accounted for. Certain other facts adduced at trial supported the State's theory: (1) the defendant's confessions to the crimes corroborated the State's proposed timeline; (2) the girls, Avery and Sydne, had not been to school Monday, Tuesday, or Wednesday (24th–26th) and the victims' family had not seen or heard from them those days; and (3) the medical examiner that performed the autopsies estimated the time of death to be the early-morning hours of April 24.

The post-conviction court entered specific findings of fact and conclusions of law on each of the defendant's claims. With respect to the defendant's contention that his trial counsel were constitutionally ineffectivefor failing to investigate and present available...

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