Wray v. State

• Citation: 720 N.E.2d 1185
• Decision Date: 17 December 1999
• Docket Number: No. 10A01-9902-PC-51.,10A01-9902-PC-51.
• Parties: Sonny WRAY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

720 N.E.2d 1185

Sonny WRAY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 10A01-9902-PC-51.

Court of Appeals of Indiana.

December 17, 1999.

Transfer Denied February 16, 2000.

Susan K. Carpenter, Public Defender of Indiana, C. Brent Martin, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

Sonny Wray appeals the denial of his petition for post-conviction relief. We affirm.

ISSUES

Wray presents four issues for our review which we consolidate and restate as:

1. Whether the trial court erred when it failed to notify Wray or his trial counsel of a note from the jury.

2. Whether Wray received ineffective assistance of appellate counsel when his counsel failed to include necessary citations to the record to support his direct appeal.

3. Whether the trial court erred when it allowed the jury to continue to deliberate after it found that further deliberations would not result in a verdict.

FACTS AND PROCEDURAL HISTORY

The facts as recited by our supreme court on direct appeal are as follows:

At approximately 3:30 a.m. on March 15, 1987, Ruby Strange heard a loud pounding on a door. Strange lived in a trailer park and was a neighbor to Bob Bayens and the appellant's uncle, with whom appellant was living. The second time she heard the sound she got out of bed and looked out the window. She saw appellant getting into Bayens' car, which was parked next to Bayens' trailer. Appellant then drove Bayens' car to his uncle's trailer, went inside, returned to the car and drove it back to Bayens' trailer. Then Strange saw appellant drive the car out of the trailer park. Approximately twenty minutes later, appellant returned the car to its parking space near Bayens' trailer.

Near noon on March 16, 1987, Strange heard a door slam and saw appellant in Bayens' car. He drove the car in the direction of the school. Later she saw him running down the street away from the school.

Bayens' brother, David Bayens, testified that appellant's uncle called him on March 18, 1987, and told him that Bob Bayens' car had been in the schoolyard for three days and that the Stranges had called the police. David Bayens and police entered his brother's trailer and found him on the floor, dead. The autopsy revealed that Bayens died from stab wounds to his neck, which the coroner estimated occurred sometime between 6:30 p.m. on March 15, 1987, and 6:30 p.m. on March 16, 1987.

Police found Bayens' car in the school parking lot. Inside the trunk, police found some stereo equipment, a hair dryer with its cord cut, two sets of keys, two checkbooks, and a bloody brown shoe. Police found in a field the shoe's match, which also had blood on it, and bloody socks. The shoes were the same type which appellant stated he had owned but had thrown away because they had torn. The hair dryer cord was found under the body of the victim. One of the checkbooks found in the car was bloodstained. Six checks, which were missing from one of the checkbooks, were found wadded up in Bayens' trailer. One of the checks was written paid to the order of "Mike" for fifty dollars and had Bayens' name as the drawer, but the name was misspelled.

In his statement to police, appellant denied having any knowledge of Bayens' death, but he admitted that he did owe Bayens $50. He also stated Bob Bayens was a homosexual. A pubic hair found under Bayens' fingernail matched a sample taken from appellant.

Wray v. State, 547 N.E.2d 1062, 1064-65 (Ind.1989). The State charged Wray with murder, felony murder, robbery as a Class A felony, and theft as a Class D felony. At trial, the jury found Wray guilty of murder and theft. On direct appeal, our supreme court affirmed his conviction.

Thereafter, in May of 1998, Wray filed a petition for post-conviction relief. After an evidentiary hearing, the post-conviction court denied Wray's petition. Wray now appeals.

DISCUSSION AND DECISION

Standard of Review

Post-conviction procedures do not afford the petitioner a super-appeal. Williams v. State, 706 N.E.2d 149, 153 (Ind.1999). Instead, the post-conviction procedures provide a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in our post-conviction rules. Id.; Ind. Post-Conviction Rule 1(1). The petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. P-C.R. 1(5); Harrison v. State, 707 N.E.2d 767, 773 (Ind.1999), petition for cert. filed, (U.S. August 16, 1999) (No. 99-5793). If an issue was known and available but not raised on direct appeal, it is waived. Williams, 706 N.E.2d at 153. When the petitioner appeals from the negative judgment of the post-conviction court, the petitioner faces the rigorous burden of showing that the evidence as a whole, "`leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court.'" Id. at 154 (quoting Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993)). Absent that showing, we will not disturb the post-conviction court's decision. Harrison, 707 N.E.2d at 774.

Issue One: Note from Jury

First, Wray contends that fundamental error occurred when the trial court failed to notify Wray or his trial counsel of a note from the jury during deliberation. Specifically, he argues that he was deprived of his right to be present at a critical stage of the proceedings. We disagree.

A criminal defendant has the right to be present at all stages of a criminal proceeding. IND. CONST. art. I, § 13. In addition, Indiana Code Section 34-1-21-6 (recodified at XX-XX-X-X) provided that after the jury has retired for deliberation, if there is a disagreement among the jurors as to any part of the testimony or if the jurors desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into open court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties. Our supreme court has found that statute applicable to criminal proceedings. Harrison v. State, 575 N.E.2d 642, 648 (Ind.Ct.App.1991). Communication between the court and the jury that takes place without notice to the defendant or his counsel violates both Article I, Section 13 and Indiana Code Section 34-1-21-6. Id. at 648-49. Once such a violation is established, there is a presumption of harm, and the burden is on the State to show that no harm resulted from the improper contact. Id. at 649.

Here, Wray argues that the jury inquired about several points of law when it sent a note to the judge during deliberation. The note reads:

OCT 27, 1987 5:05 pm— Judge— Point of clarification please—

Do all juror's [sic] have to be unanimous on both counts before a verdict is reached, or if we are deadlocked on one count, is it a not guilty verdict?

Is it possible to get a copy of your final instruction on reaching a verdict?

Thank you—

Foreman /s/ Melford H. Johnson

[Beneath this handwritten note is typewritten the following paragraphs:]

1. Do all jurors have to be unanimous on both counts before a verdict is reached? ANSWER: No.

2. If we are deadlocked on one count, is it a not guilty verdict? ANSWER: No.

3. Here is a copy of the court's Final Instruction No. 7. If you wish, the court will reread all of the Final Instructions.

Record at 128. At the hearing on post-conviction relief, Wray testified that he was never contacted by the court regarding the jury communication. In fact, the first time that he saw the jury note was when his attorney came to visit him in prison several months prior to the post-conviction relief hearing. Similarly, trial counsel for Wray testified that he did not remember being contacted by the court regarding a note from the jury. Further, trial counsel stated that there was nothing in his notes detailing such communication, and he would have objected to the typed response as it was contrary to his understanding of the law.

Wray contends that the note from the jury triggered the protections outlined in Section 34-1-21-6, which required the trial court to call all parties into open court to discuss the judge's response. He asserts that since the court failed to follow the safeguards of the statute, the burden shifts to the State to prove that the judge's response to the note was harmless beyond a reasonable doubt. Before applying the principles set forth above, however, we must first determine whether there was in fact a "communication" between the court and the jury during deliberation.¹ In denying post-conviction relief, the post-conviction court concluded that Wray presented "no evidence whatsoever" to show that the trial judge received the note during jury deliberation or that he ever answered the questions raised in the note. In reaching this conclusion, the court stated:

While the 5:05 p.m. note is certified as part of the Circuit Court file, this court cannot automatically assume that these answers were actually given to the jury during deliberation. The defendant failed to present the testimony of any of the sitting jurors, the trial court judge, or the Circuit Court staff. If any assumptions are going to be made, it is that none would have provided any support to the defendant's current assertion that the Court actually gave these communications to the jury during deliberation. Further, the absence of any evidence of these communications in the pleadings, the docket sheet, the trial tapes or the Record of Proceedings is an indication that they never took place.... It is an equally probable conclusion that the trial court prepared the proposed answers to the jury's questions, but never communicated them to the jury. See State v. Daniels, 680 N.E.2d 829 (Ind.1997)

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Record at 130. In...