Daniels v. State , 2001 Ind. LEXIS 9 ( 2001 )

BOEHM, Justice,

dissenting.

I agree with the majority’s recitation of the well settled principles of waiver and res judicata. 741 N.E.2d at 1184-85. I also agree that this case boils down to “the dilemma between the dual goals of ending litigation and ensuring only proper imposition of the death penalty.” Id. at 1184. However, I believe the majority places too high a premium on finality and discounts evidence that suggests Daniels may not have been the perpetrator of these horrendous crimes. This evidence was not presented at Daniels’ trial and was also completely ignored by postconviction counsel. Although the successive postconviction court found the evidence persuasive, invocation of waiver precludes its consideration by any court. I would adhere to the principle embraced by this Court in State v. Huffman, 643 N.E.2d 899 (Ind.1994), also a death penalty case. We held there that “[f]inality and fairness are both important goals. When faced with an apparent conflict between them, this Court unhesitatingly chooses the latter.” Id. at 901. For the reasons explained below, I believe the unusual facts of this case demand an exception to the general waiver and res judi-cata principles.

A. The Evidence

The State’s theory at trial was that the robberies were committed by Daniels, Kevin Edmonds, and Donald Cox. Defense counsel focused their efforts on discrediting the testimony of Edmonds and did little to question the identifications by the robbery victims. Daniels correctly asserts in this appeal that trial counsel had available to them a wealth of information that suggested that Rowley, not Daniels, might have been the gunman during the robberies. Daniels points to a number of specifics. Rowley and Cox were charged with a robbery with a similar modus oper-andi four days before these offenses.¹ Timothy Streett, the son who witnessed his father being shot, tentatively identified both Rowley and Daniels as possible participants.² The daughter from the third robbery initially identified Daniels in a line-np, but only after his picture had appeared in the newspaper. She later called a deputy prosecutor and stated that she was “not real sure anymore” about the identification, but nonetheless confidently identified Daniels at trial. The fourth robbery victim, who testified at trial that he was positive of his identification of Daniels, had previously told a detective who showed him an array of photographs that he could not identify the perpetrator but narrowed it down to Rowley and Daniels. Before Edmonds implicated Daniels, he had suggested to police, in response to Rowley’s pointing a finger at him, that Rowley’s knowledge of the robberies suggested Rowley was present when they took place. In a polygraph interview of Rowley two weeks after the crimes, the examiner detected “deceptive responses.” According to the polygraph report, Rowley, in response to subsequent questions, then “confessed” to the first robbery, although it is unclear precisely what this means and the audiotape of the interview no longer exists.³ Rowley was initially charged with the Streett murder. According to the probable cause affidavit, this charge was based on Timothy Streett’s identification of Rowley “as being with the person” who shot his father. Finally, shell casings fired from the same gun as the shell casings found at the murder scene and the scene of the fourth robbery were recovered during a search of Rowley’s home.

Daniels contends that his trial counsel were ineffective for failing to present this, evidence suggesting that Paul Rowley, and not Daniels, may have committed the crimes at issue in this case. The postcon-viction court found no prejudice as to the guilt phase, and I agree with the majority’s affirmance of the successive postcon-viction court’s judgment on that point. However, I reach a different conclusion regarding the penalty phase.

All of the robbery victims testified that they saw two robbers and only one wielded a gun. Edmonds testified that he was with Daniels, who carried the gun throughout the evening, while Cox remained in the car. The State’s theory of the case, from opening statement to verdict, was that Daniels, Edmonds, and Cox were the only participants in the crime spree. Daniels argues, and I agree, that the cited evidence suggesting Rowley’s presence, and even the possibility that Rowley was the shooter, left at least a “residual doubt” as to whether Daniels was the shooter.⁴

B. Performance of Trial Counsel

This case was tried in 1979 — long before Criminal Rule 24 was adopted. That Rule requires death penalty trial counsel to meet significant training, educational, and other requirements, and provides for resources to defense counsel that were unavailable in 1979. Although the performance of counsel is evaluated under prevailing professional norms of the time, the postconviction court was justifiably appalled by the performance of counsel and found that their omissions as to the penalty phase of this trial were deficient and prejudicial, even by 1979 standards. It found that “in several areas they did a deplorable job.” The first of these identified by the postconviction court was the failure to cross-examine eyewitnesses. This is at least arguably attributable to trial strategy to avoid appearing callous to victim-witnesses. The second item, however, goes beyond the questionable and enters the realm of the incomprehensible. The postconviction court identified several pieces of evidence suggesting that Rowley, not Daniels, was the shooter, all of which were never put before the jury at trial. It found it

inconceivable with the trial strategy indicated by trial counsel that no police officers were called to testify about multiple identifications by Timothy Streett; about Paul Rowley’s confession .to involvement in the [first] robbery; and about shell casings found at Rowley’s home that matched the shell casings found at the scene of the Streett murder and Barnett attempted robbery/shooting, all of the' above information was either in the Court file, in exhibits attached to pleadings filed by trial counsel themselves, or readily available to them with minimal investigation.

As this Court recently observed in Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000), Criminal Rule 24, which became effective January 1, 1990, now “creates minimum standards for the criminal litigation experience, specialized training, compensation, and caseload of lawyers appointed in capital cases.” Prosecutors and defense attorneys agree that “Rule 24 ha[s] led to improved representation by defense lawyers in capital cases.” Id. (quoting Norman Lefstein, Reform of Defense Representation in Capital Cases: The Indiana Experience and Its Implications for the Nation, 29 Ind. L.Rev. 495, 509 (1996)). “[A] death penalty verdict returned [since the advent of Rule 24 is] more likely to be sustained on appeal, and the appellate court [is] less apt to find that defense counsel was ineffective.” Id.

C. Performance of Postconviction Counsel

These seemingly glaring omissions of trial counsel were repeated in the first postconviction proceeding. Daniels was represented in the 1984 proceeding by Paul Levy. Levy testified at the successive postconviction hearing that Daniels’ case was among the first two or three death penalty postconviction cases in Indiana after the reinstatement of the death penalty. At the time, Levy was the only person in the State Public Defender’s Office who was working on such cases. When he filed the petition for postconviction relief in February of 1984, he had less than four years experience as a lawyer, and a predominant part of this experience was reviewing guilty plea transcripts to see if they were in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and the Indiana statutory requirements for a guilty plea.⁵ Levy testified that he “had no experience doing a factual investigation of a case” and that he “had never worked with an investigator.” He testified that he did not recall obtaining the files of trial counsel in the case, and he either did not recall or did not review the trial court’s file. The only thing Levy could confidently say he had done was review the record of proceedings from trial. Indeed, Levy testified that he “didn’t do much of my own factual investigation beyond the reading of the trial transcripts,” and that “if I had known about other evidence that could have cast doubt on the reliability of the identification of Michael Daniels as the murderer in this case, I would have pursued it. But did I investigate and look for that? No.” Finally, Levy testified that part of the reason he left his job with the State Public Defender a few years later was “a growing sense of unease that I wasn’t doing my job very well.”

It appears that Levy viewed his role as essentially a second appellate attorney. However, as this Court observed in Woods v. State, 701 N.E.2d 1208, 1216 (Ind.1998),

expecting appellate lawyers to look outside the record for error is unreasonable in light of the realities of appellate practice. Direct appeal counsel should not be forced to become a second trial counsel. Appellate lawyers may have neither the skills nor the resources nor the time to investigate extra-record claims, much less to present them coherently and persuasively to the trial court.

Postconviction counsel is not to function as another appellate attorney. In Woods, we noted the importance of conducting a factual investigation and developing extrinsic evidence to support many claims of ineffective assistance of counsel. Id. at 1216. This was recently again emphasized by the United States Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1515-16, 146 L.Ed.2d 389 (2000), in the context of omitted mitigating evidence. It is equally true of the Rowley-related evidence, which would have required Levy to develop and present evidence beyond the face of the trial record to establish ineffective assistance of counsel.

As noted above, had Criminal Rule 24 been in effect at the time of Daniels’ trial, much of the Rowley evidence would likely have been presented to the jury. For many years the State Public Defender’s Office has been equipped to identify errors of the magnitude of those that occurred here and raise them in the initial postcon-viction proceeding.⁶ The briefing in this and other cases demonstrates that capital postconviction counsel in recent years conduct a very thorough factual investigation and appear to raise every conceivable issue as grounds for postconviction relief. The contrast between Daniels’ initial postcon-viction proceeding and those of later years is stark.

Although many capital cases present virtually irrefutable physical and testimonial evidence of guilt, guilt in this case is based on the testimony of a co-defendant who testified pursuant to a plea agreement for a reduced charge and eyewitness victims, some of whom had previously identified Rowley or others. Trial counsel had available, but failed to use, a substantial body of information suggesting that someone else may have committed the crimes for which Daniels was charged. Postconviction counsel added nothing, with the result that no court considered these points until the second postconviction proceeding in 1997.

D. The Postconviction Court’s Findings

The evidence the majority cites is surely enough to sustain a conviction, but I cannot exclude the possibility that the omitted evidence could have affected the sentence. The second postconviction court concluded that it would have. After a lengthy hearing at which the omitted Rowley evidence was presented and trial counsel and Levy testified about their performance, the second postconviction court found that “had trial counsel done a fully professional job the residual doubt which would have been placed with the jury and the Judge would have created a reasonable probability that the recommendation would have been different and a reasonable probability that the Judge would not have imposed the death penalty.” Because this is ultimately a factual determination, this Court will reverse only upon a showing of “clear error” — that which leaves us with a definite and firm conviction that a mistake has been made. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995). The postconviction court’s finding that, but for trial counsel’s omissions the death penalty would not have been imposed, is not clearly erroneous. Nevertheless, the postconviction court quite correctly viewed itself as barred by our pronouncements that a prior postconviction try at ineffective assistance precludes revisiting that issue, and accordingly denied relief.

E. The Need for an Exception to the Usual Res Judicata Waiver Rules

This case thus presents a case in which (1) the death penalty was imposed; (2) the trial was conducted before Criminal Rule 24; (3) there was minimal investigation; (4) postconviction counsel was inexperienced and conducted no factual investigation; (5) subsequent investigation revealed exculpatory evidence; and (6) a subsequent postconviction court found the omitted evidence sufficient to render the death penalty unreliable. In light of the adoption of Criminal Rule 24 and the dramatic improvements in capital postconviction representation by the State Public Defender, I trust this case presents a set of circumstances that will recur infrequently. But given the woeful performance at the initial postconviction proceeding, I cannot prioritize the powerful reasons favoring finality over the concern that the death penalty may have been imposed not for the defendant’s acts, but for counsel’s oversights.

Accordingly, I believe this Court should consider the merits of Daniels’ claim of ineffective assistance of trial counsel based on inadequate investigation of and failure to present the Rowley evidence. Giving due deference to the factual determinations of the successive postconviction court, I would affirm the denial of relief as to the convictions but reverse the denial of relief as to the penalty phase.

RUCKER, J., concurs.

2 . Daniels also points to the following statement by a deputy prosecutor at a pretrial hearing in his case with respect to lineups at which apparently fifteen witnesses were called: “Certain witnesses did not pick out [Daniels], either picked out someone else or picked out another person. Some of those sheets no one exactly knows where they are.... [T]he State will stipulate that certain witnesses did not pick [Daniels] out, and in certain instances witnesses picked other persons out.” We are not told to which witnesses this refers, and what the discrepancies were. The prosecutor earlier stated. "A great many persons viewed a line-up for a variety of crimes that night.” It is unclear how fifteen potential witnesses were identified when the accounts of the robberies place only six surviving victims at the scene.

3 . Although the audiotapes of the polygraph interview were erased, the report notes that Rowley stated that he, Cox, and Edmonds "stuck someone up (note: the victim beat [Edmonds] off with a b[r]oom). The elements of this crime (the broom) occurred on the same night of the shooting under investigation....” Daniels further contends that Rowley "confessed” in that same interview "to having the gun in his possession on the night of the shooting. Further results of the tests showed that he did shoot someone on the night of January 16, 1978.” This language appears in handwritten notes dated January 30, 1978, which were attached to a deposition admitted into evidence at the post-conviction hearing. The deposition was that of a detective who stated that the handwriting " appeared] to be” his.

4 . Daniels also suggests that trial counsel were ineffective for failing to make a penalty phase argument based on residual doubt. The majority correctly notes that we recently held in Miller v. State, 702 N.E.2d 1053, 1069 (Ind.1998), cert. denied, 528 U.S. 1083, 120 S.Ct. 806, 145 L.Ed.2d 679 (2000), that "counsel ought have no obligation to argue to the jury that its just-returned unanimous determination of guilt ought be revisited.... The failure to argue 'residual doubt' does not constitute ineffective assistance of counsel.” Here, however, the failure of counsel is not merely the failure to argue to the jury that its verdict may have been incorrect. The failure is in omitting to present the evidence suggesting that possibility.

5 . The majority notes, "During his career as a public defender. [Levy] handled hundreds of post-conviction relief petitions, many of which were successful.” 741 N.E.2d at 1190. I fail to see how reviewing and litigating hundreds of guilty pleas in which a trial judge failed to give a specific statutory advisement would have equipped Levy to conduct the necessary factual investigation to litigate the complex capital postconviction relief petition at issue in this case.

6 . Beginning in 1985, the State Public Defender's Office has assigned at least two attorneys to each death penalty case. Annual Report of the State Public Defender Fiscal Year 1986-87 13 (1987). In 1986, the Office created a Death Penalty Task Force to provide ongoing training in areas related to capital litigation. Id. at 13. It also instituted procedures for meaningful supervision of death penalty cases by requiring that attorneys handling capital cases attend a minimum of eight meetings at different stages of litigation. "The purpose of the stage meetings is to provide guidance on capital issues and strategies, to ensure that all allegations are raised, and to provide supervision when warranted.” Id. at 14. These improvements were presumably in response, at least in part, to the observation that capital postconviction cases require "review of voluminous appellate records, police reports, trial discoveiy, prior counsel’s files, appellate briefs and investigation of issues and witnesses not previously presented....” Id. at 10 (emphasis in original).

In the early 1990s, a separate Capital Division was created. It consisted of a Chief and Assistant Chief Deputy, two case supervisors, a resource manager, six capital litigation attorneys, two investigators, one "mitigator,” and three law clerks. Report of the Office of the State Public Defender Fiscal Years 1988-89, 1989-90, and 1990-91 24, 59 (1991). According to the most recent published report, the Capital Litigation Division, which has downsized in recent years because of a reduced caseload, now employs seven full-time attorneys, one investigator, two "mitigators,” and two law clerks. Public Defender of Indiana 1999 Annual Report 19 (2000).