Daniel Snell v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Jul 29 2016, 9:41 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James A. Edgar Gregory F. Zoeller
J. Edgar Law Offices, Prof. Corp. Attorney General of Indiana
Indianapolis, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Snell, July 29, 2016
Appellant-Petitioner, Court of Appeals Case No.
49A04-1511-PC-1891
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Respondent Judge
The Honorable Steven J. Rubick,
Magistrate
Trial Court Cause No.
49G01-0608-PC-151692
Crone, Judge.
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Case Summary
[1] Daniel Snell was convicted of two counts of murder and sentenced to 100 years
of imprisonment. His convictions and sentence were upheld on direct appeal.
Snell filed a petition for postconviction relief (“PCR”) alleging that his trial
counsel was ineffective in failing to investigate alleged third-party suspects,
failing to timely discover an alibi witness, opening the door to allegedly harmful
evidence, and failing to inform him of an alleged plea offer from the State. The
postconviction court denied Snell’s petition.
[2] On appeal, Snell contends that the postconviction court’s ruling is clearly
erroneous. Finding no error, we affirm.
Facts and Procedural History
[3] In Snell’s direct appeal, another panel of this Court recited the following facts:
On the night of August 2, 2006, Snell, Charles Richardson, and
two women were hanging out in the driveway of a residence on
North Webster in Indianapolis, Indiana. Antoine Beech and Eric
Gray stopped by the residence to use some cocaine they had
bought. Beech and Gray saw that Snell had a handgun in his
waistband and thought he was acting “weird” and “belligerent.”
Transcript at 76, 159. After the two women went inside the
residence, Allan Westmoreland and Latasha Pettis approached in
a vehicle. Richardson hailed Westmoreland, and Westmoreland
parked the car. At some point, Gray heard Richardson say,
“there go the neighborhood snitch.” Id. at 163.
Richardson and Beech talked to Westmoreland, and then Beech
went to the rear of another vehicle to use his cocaine. As Beech
and Gray were using their cocaine, they saw Snell approach
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Westmoreland’s vehicle by sneaking through some bushes. Snell
then reached inside the vehicle and started shooting
Westmoreland. Snell went to the vehicle’s passenger side,
dragged Pettis out of the vehicle as she screamed, and shot her.
Snell then went back to the driver’s side of the vehicle, reloaded
his gun, and shot Westmoreland again.
The first officer on the scene discovered that Westmoreland was
dead and that Pettis was critically wounded. Pettis told the
officer that a young black man with a bald head wearing blue
shorts shot her. Less than three hours later, Snell reported to the
police that his 9 mm gun had been stolen.
Both Westmoreland and Pettis died from their gun shot wounds.
Westmoreland had been shot nine times, and Pettis had been
shot two times. All of the casings found at the scene were “9 mm
Luger caliber cartridge casings,” and the bullets were “9 mm.”
Id. at 403-404. All of the bullets and casings large enough for
analysis were fired from the same gun. When officers attempted
to arrest Snell a few days later, Snell identified himself as
“Jonathan Snell,” his brother, and fled on foot. Id. at 327. Snell
was eventually apprehended by the officers.
The State charged Snell with two counts of murder. After the
State rested at the jury trial, Snell attempted to call his girlfriend,
Sarajevo Anderson, as an alibi witness. Noting that Snell had
failed to file a notice of alibi, the trial court denied Snell’s request
to present Anderson as an alibi witness and noted that Snell had
not demonstrated good cause for his failure to file a timely notice
of alibi. Snell then testified at the trial that he left the residence
on North Webster before Westmoreland arrived and that he
spent the night with Anderson.
Snell v. State, No. 49A02-0708-CR-700, 2008 WL 2054041, at *1 (Ind. Ct. App.
May 15, 2008), trans. denied. The trial court denied Snell’s proposed alibi
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instruction. The jury found Snell guilty as charged in June 2007. The trial
court sentenced him to 100 years of imprisonment.
[4] On direct appeal, Snell argued that the trial court erred in excluding his alibi
witness and denying his alibi instruction and that his sentence was
inappropriate. Another panel of this Court affirmed the trial court in all
respects. See id. Snell filed a PCR petition raising several claims of ineffective
assistance of trial counsel and freestanding error. After a hearing, the
postconviction court denied Snell’s petition in October 2015. This appeal
followed. Additional facts will be provided as necessary.
Discussion and Decision
[5] Snell asserts that the postconviction court erred in denying his PCR petition.
Postconviction proceedings do not grant a petitioner a “super-appeal” but are
limited to those issues available under Indiana’s postconviction rules. Shepherd
v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied.
Postconviction proceedings are civil in nature, and a petitioner bears the burden
of proving his grounds for relief by a preponderance of the evidence. Id. A
petitioner appealing the denial of PCR faces a rigorous standard of review, as
we may consider only the evidence and the reasonable inferences supporting
the judgment of the postconviction court. Id. We will not reweigh the evidence
or judge witness credibility. Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct.
App. 2013), trans. denied (2014). We must accept the postconviction court’s
findings of fact and may reverse only if they are clearly erroneous. Shepherd,
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924 N.E.2d at 1280. A petitioner must show that the evidence as a whole leads
unerringly and unmistakably to an opposite conclusion than that reached by the
postconviction court. Id.
[6] Snell claims that he was denied his Sixth Amendment right to the effective
assistance of trial counsel. To prevail on such a claim, a petitioner must show
that his counsel’s performance fell below an objective standard of
reasonableness based on prevailing professional norms and that there is a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. Little v. State, 819 N.E.2d 496, 501 (Ind. Ct. App.
2004), trans. denied (2005). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Talley v. State, 51 N.E.3d 300, 303
(Ind. Ct. App. 2016), trans. denied. Counsel’s performance is presumed
effective, and a petitioner must offer strong and convincing evidence to
overcome this presumption. Little, 819 N.E.2d at 501. “[A] court need not
determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies.”
Strickland v. Washington, 466 U.S. 668, 697 (1984). “If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice, … that
course should be followed.” Id. Snell raises four ineffectiveness claims. We
address each in turn.
[7] First, Snell alleges that counsel was ineffective in failing to investigate and
prepare a defense based on the alleged involvement of three men against whom
Westmoreland was scheduled to testify in an attempted murder case. All three
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men were in jail when Westmoreland and Pettis were killed. Before trial, the
State filed a motion in limine to exclude any evidence of third-party
involvement in the murders. The trial court told Snell’s counsel, “If you want
to introduce evidence on the third party committing the crime, you would have
to have some evidence connecting the person to that crime.” Trial Tr. at 9. See
Pelley v. State, 901 N.E.2d 494, 505 (Ind. 2009) (reciting “the widely-accepted
principle that before evidence of a third party is admissible, the defendant must
show some connection between the third party and the crime.”). Counsel
admitted that she had no evidence that the three men had committed or
conspired with others to commit the murders. The trial court granted the
State’s motion in limine but allowed counsel to make an offer of proof.
[8] In its order, the postconviction court found,
While he is highly critical of counsel’s efforts at presenting a third
party type defense, [Snell] has presented no additional evidence
that establishes a credible connection between any third parties
and the murders in this case. Without this evidence, the Court
must find that [Snell] failed to establish that he was prejudiced by
counsel’s actions.
Appellant’s App. at 131. Indeed, Snell has failed to assert, let alone establish,
that he was prejudiced by counsel’s actions, i.e., that but for counsel’s alleged
error, there is a reasonable probability that the result of his trial would have
been different. Consequently, this claim fails.
[9] Second, Snell asserts that counsel was ineffective in failing to timely discover an
alibi witness. When Snell was questioned by the police after his arrest, he
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claimed that he was “with some friends [in] Bloomington” at the time of the
murders. Trial Tr. at 503. On the morning of the last day of trial, Snell told his
counsel that he had been with a woman named Sarajevo Anderson at the time
of the murders and had lied about his whereabouts because he did not want to
upset his girlfriend. Counsel informed the trial court of this development after
the State rested its case, and she asked to call Anderson as an alibi witness. The
trial court denied this request as untimely 1 and in “horribly bad faith”:
“[Y]ou’re telling me your client didn’t want to disclose because he didn’t want
to make his girlfriend jealous. It’s ridiculous when you’re charged with two
counts of murder and facing 125 years in prison.” Id. at 469-70. Snell took the
stand and claimed that he had been with Anderson at the time of the murders.
In a subsequent offer of proof, Anderson claimed that Snell was with her on the
night of the murders from approximately 10:00 p.m. onward.
[10] The postconviction court determined that, “[r]ather than a strategic error, or a
lack of investigation on the part of defense counsel,” the alibi issues “were
caused by [Snell] himself” and thus were “simply invited error.” Appellant’s
App. at 134. We agree. “The doctrine of invited error is grounded in estoppel.
Under this doctrine, a party may not take advantage of an error that she
commits, invites, or which is the natural consequence of her own neglect or
misconduct.” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (citations and
1
See Ind. Code § 35-36-4-1 (requiring defendant to file notice of alibi defense no later than twenty days prior
to omnibus date in felony case).
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quotation marks omitted). “Invited error is not reversible error.” Kelnhofer v.
State, 857 N.E.2d 1022, 1024 (Ind. Ct. App. 2006). As far as Snell’s counsel
was aware, her client had claimed to be in Bloomington on the night of the
murders, and she cannot be held responsible for Snell’s last-minute revelation
about Anderson, who testified during the offer of proof that Snell had told her
“not to come forward” because “he was concerned about [her].” Trial Tr. at
564. Snell has only himself to blame for the exclusion of his alibi witness.
[11] Third, Snell argues that counsel was ineffective by opening the door to allegedly
damaging evidence. In cross-examining Detective Thomas Lehn, Snell’s
counsel accused him of having “nothing else except the testimony of Mr. Beech
and Mr. Gray and Mr. Richardson” regarding Snell’s involvement in the
murders. Trial Tr. at 439. Detective Lehn said, “No, ma’am, that’s not
accurate.” Id. Counsel asked, “And what would that be?” Id. The detective
answered, “I have statement[s] from Shaquanna Johnson, statements from
Tamara Brown - -” Id. Counsel objected on hearsay grounds. The trial court
responded, “He didn’t say what the statements were. You asked and he told
[…] the jury. Next question.” Id. The postconviction court found that Snell
had “not established, or even argued that he suffered any specific prejudice
from admission of this evidence[.]” Appellant’s App. at 135. The same is true
on appeal, and therefore this claim fails.
[12] Fourth, and finally, Snell contends that counsel failed to inform him of a plea
offer from the State, which our supreme court has said is “a denial of effective
assistance of counsel[.]” Gray v. State, 579 N.E.2d 605, 607 (Ind. 1991). At the
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PCR hearing, counsel testified that the State tendered a plea offer of thirty years
and that she did not tell Snell about it because she “did not believe that he
would turn over anyone” in exchange for the plea. PCR Tr. at 20. Two of the
prosecutors assigned to Snell’s case, however, testified that no plea offer was
made. Id. at 37, 52. The postconviction court found the prosecutors’ testimony
more credible, and we will not second-guess that determination on appeal.
Finding no error, we affirm the denial of Snell’s PCR petition.
[13] Affirmed.
Kirsch, J., and May, J., concur.
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