Demarco Delray Johnson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 08 2019, 10:13 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Kristin M. Eichel Henry A. Flores, Jr.
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Demarco Delray Johnson, July 8, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-104
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Respondent Judge
Trial Court Cause No.
82D03-1410-PC-4933
Crone, Judge.
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Case Summary
[1] Demarco Delray Johnson appeals from the denial of his petition for post-
conviction relief (“PCR”). He contends that the post-conviction court erred in
concluding that he was not denied the right to an impartial jury, that he is not
entitled to a new trial based on alleged juror misconduct, and that his trial
counsel was not ineffective. Finding no error, we affirm.
Facts and Procedural History
[2] The following facts are taken from Johnson’s direct appeal:
[I]n the early morning hours of September 12, 2012, Johnson and
Andre Parson entered a Walgreens in Evansville, Indiana. The
two men immediately took one cart and began walking the aisles
“all over the store”, taking things off the shelves and placing
them in the child seat of the cart. This caught the attention of
Craig Hasenfang, a store employee. Hasenfang eventually
approached Johnson in the dental aisle and asked if he was
finding everything okay. When Johnson responded
affirmatively, Hasenfang went to the front of the store to wait
and give them an opportunity to make a purchase.
At some point, Hasenfang noticed that Johnson was no longer in
the store, so he approached Parson to inquire. Parson appeared
to be on his way out of the store, and Hasenfang observed that
only one item remained in the cart that the men had been using.
Hasenfang questioned Parson and informed him to wait. Parson
fled as Hasenfang called 911 and provided dispatch with a
description of the men.
Shortly thereafter, Officer Kareem Neighbors observed two men
on a scooter matching the description put out on dispatch. When
Officer Neighbors activated his lights, the passenger, Parson,
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began throwing objects from the scooter as Johnson continued
driving. Johnson eventually stopped, and as Parson got off the
scooter, more items fell to the ground. These items were later
identified as having been taken from the Walgreens store. Parson
and Johnson were separated and then both placed under arrest.
Johnson was upset and agitated during the arrest. Officer Jarid
Harris, who knew Johnson, tried to calm him down. Another
officer, Jonathan Oakley, arrived and was asked to transport
Johnson to jail. Officer Oakley placed the already handcuffed
Johnson in the back of his squad car, which did not have a cage
separating the front and back seats. As Officer Oakley began to
drive away, Johnson declared that he was not going to jail and
lunged toward the front part of the vehicle. Officer Oakley
stopped the vehicle and went to the back passenger side door.
Upon opening the door, Johnson lunged at the officer. Officer
Oakley administered a drive stun, a localized surge of electricity,
to Johnson’s leg as Johnson attempted to kick him. The two
ended up tussling in the back seat, so Officer Oakley
administered another drive stun closer to Johnson’s chest.
Johnson then turned to his side and attempted to grab the taser.
Despite being handcuffed, Johnson managed to grab hold with
one hand. Officer Oakley continued to struggle with Johnson
and yelled for him to let go. By this point Officer Harris had
become aware of the struggle and ran to Oakley’s aid. When
Officer Oakley tased Johnson a third time and placed his body
weight on him, Johnson finally said, “I’m done.” The officers
called for a police wagon to take Johnson to jail.
Johnson v. State, No. 82A05-1303-CR-128, 2013 WL 378602, at *1 (Ind. Ct.
App. July 17, 2013) (footnote and transcript citations omitted).
[3] The State charged Johnson with class C felony disarming a law enforcement
officer, class D felony resisting law enforcement, and class D felony theft, and
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also alleged that he was a habitual offender. During the voir dire proceedings
before Johnson’s February 2013 trial, the court put the prospective jurors under
oath and asked if they knew anyone involved in the trial. Prospective juror
Cynthia Layne was the first to respond and stated that she knew “Demarco.”
Pet. Ex. B at 5. When the court asked how Layne knew Johnson, she replied,
“I just know him from around.” Id. The court asked if they were “personal
friends” or “family members” and if there was “[a]nything about that that
would make it difficult for you to be fair and impartial in this case?” Id. Layne
replied, “No.” Id.
[4] The prosecutor questioned Layne as follows:
[Prosecutor]: Now, you had indicated that you might know the
Defendant in passing. Is there anything about that that makes
you feel uncomfortable sitting on this jury?
[Layne]: No.
[Prosecutor]: Okay. That would not be something where as if at
the end of the case you felt we had proven it beyond a reasonable
doubt you’d – because you knew the Defendant you’d feel bad
about it?
[Layne]: No.
Id. at 31. The prosecutor asked the prospective jurors whether anyone had been
a victim of a crime, and Layne gave no response. Id. at 45. She also gave no
response when the prosecutor asked the prospective jurors whether there was
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anything that he or the court had not asked that they felt “the parties should be
aware of[.]” Id. at 47.
[5] Johnson’s appointed trial counsel, Doug Walton, questioned Layne as follows:
[Walton]: Okay. If you were called as a juror at this trial could
you be fair and impartial?
[Layne]: Yes.
[Walton]: Could you give Mr. Johnson a fair shake?
[Layne]: Yes.
[Walton]: That’s a term that [the prosecutor] asked for earlier, he
asked for a fair shake. Now a fair shake would you agree that
means that you hold the State to their burden of proof? In other
words you make them prove their case?
[Layne]: Yes.
Id. at 64. Neither party struck Layne from the panel, and she served on
Johnson’s jury.
[6] After hearing evidence and argument, the jury found Johnson guilty of class C
felony attempted disarming a law enforcement officer and class D felony theft
and not guilty of class D felony resisting law enforcement. Johnson admitted to
being a habitual offender. At the sentencing hearing, Johnson told the trial
court:
I respect the jury’s call but I told my, my lawyer while we was in
trial I said I notice there was a black lady, you know, on the jury
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named Ms. Layne. My daddy used to stay at 1715 South
Glenwood in 2013 until he got sick and he got put in a nursing
home and Ms. Layne, I didn't know it was her because I’m used
to her having up-dos but she had her hair down. She knows me
because her boyfriend which is deceased, Quan Butler, he had
got robbed in Oakdale. That’s right around the corner from my
dad’s house and I seen her crib get robbed and she was there and
she blamed me and she was one of my jurors.
Trial Tr. Vol. 1 at 126-27. Walton added,
And Your Honor I addressed that with the Court that the
discovery on my client’s part that Ms. Layne was part of the jury
panel that had previously known Mr. Johnson. Beyond what she
had indicated in voir dire and I consider that to be a patent
misrepresentation of her sworn statements as a potential juror,
that that was grounds for a Motion to Correct Error and I
accordingly am delivering that information to the Public
Defender’s Office for their proceedings.
Id. at 127. The trial court told Johnson, “[Y]our lawyers can deal with that
information. Nothing I can do about that at this point but you need to be sure
and tell your appellate lawyer about that, okay?” Id. The court imposed an
aggregate sentence of twelve years and appointed attorney Yvette LaPlante to
represent Johnson on appeal.
[7] No motion to correct error was filed. LaPlante challenged the sufficiency of the
evidence supporting Johnson’s convictions and the appropriateness of his
sentence. In July 2013, another panel of this Court affirmed Johnson’s
convictions and sentence in a memorandum decision.
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[8] In October 2014, Johnson filed a pro se PCR petition, which was later amended
by counsel. The second amended petition alleged that Johnson was denied his
right to an impartial jury because Layne was biased against him, that Layne
committed misconduct by concealing her bias, and that Walton provided
ineffective assistance of counsel. In December 2018, after a hearing, the post-
conviction court issued an order denying Johnson’s petition that contains the
following relevant findings of fact and conclusions of law:1
FINDINGS OF FACT
….
28. Johnson’s first witness was Angela Layne.
28(a) Layne served on Johnson’s jury. She knew Johnson from
around the neighborhood. Around 2005, she lived on Oakdale
and came home to discover her home had possibly been
burglarized. She was told by a bystander that someone saw
Johnson at the house. Layne did not herself see Johnson and did
not report the incident to police because she was not sure
anything was taken. The incident upset her “a little bit” at that
time. Later, Layne saw Johnson and asked him about the
burglary. Johnson told her he did not do it and “we left it at
that.” Layne did not really know Johnson and did not have
further contact with him after that confrontation. Layne did not
have any particular feeling about Johnson. She felt “neutral”
about him.
28(b) This incident from 2005 did not come up in her mind at
1
We have replaced the court’s references to “Petitioner” with “Johnson.”
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the time of jury selection at Johnson’s 2013 trial. She did not
consider herself a victim of a crime because she did not believe
anything had been taken during the 2005 break-in. If someone
had asked her about it during trial, she would not have said
anything because there was “nothing to it.” Layne did remember
the incident later during trial but did not share the information
with anyone.
28(c) Layne recalled previously speaking to PCR counsel Eichel
by telephone but did not recall the conversation itself. When
confronted with the allegation she had previously told Eichel she
was probably biased against Johnson at his trial, Layne stated
that she did not remember that. Layne did not think she was
biased against Johnson at trial. She did not recall the jury ever
finding Johnson guilty but thought that “we were just let go.”
29. Johnson’s second witness was his trial counsel, Doug
Walton.
….
29(b) …. [Walton stated that, a]s a general rule, if a potential
juror dislikes his client, he wants them off the jury. Walton
recalled that Layne said she knew Johnson but she did not say
anything negative about him during voir dire. At that time,
Johnson told Walton he recognized Layne but did not know who
she was. Later, Johnson to [sic] him something to the effect of
“she’s cool.” Walton did not question Layne about the
relationship because he “wanted to leave a sleeping dog lie.”
Further, Layne was the only African American in the jury pool
and he wanted to keep her if possible so that his client had a jury
of his peers.
29(c) Walton did not recall thinking there had been jury
misconduct at the time of trial but discovered Layne’s potential
bias around sentencing. He did not recall Johnson telling him
about Layne during trial; if he had, Walton would have moved
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for a mistrial. Johnson had later recalled to Walton that Layne
was not who he thought she was and that they had a negative
relationship. Johnson and Walton relayed the issue of juror
misrepresentation to the Court during sentencing. Counsel now
believed Layne was tainted. Had he known about Layne’s
feelings toward Johnson during voir dire or trial, he would have
requested her removal from the jury panel. Walton believed a
motion to correct error should have been filed, but he did not
believe it was his responsibility to do so. Walton filled out the
Pre-Appeal Form and listed the issue when he returned the file to
the Vanderburgh County Public Defender’s Office.
30. Johnson’s third witness was appellate counsel Yvette
LaPlante.
….
30(b) LaPlante did not raise a juror bias or juror misconduct
issue because she did not have the record to properly do so. On
appeals, LaPlante is confined to the record, and there was
nothing about it in the transcripts. She would have needed
testimony from Layne. Trial counsel would have had to file a
motion to correct error because it is not her duty on appeal to
take depositions or engage in discovery. As appellate counsel, it
is her duty to find record-based appellate issues on her client’s
behalf.
31. Johnson also testified at his hearing.
….
31(b) At some point during trial, Johnson recognized Layne,
who [sic] he knew well but only by the nickname “Booba.”
Johnson does not recall whether he told the Court about his
concerns.
….
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CONCLUSIONS OF LAW
….
2. Johnson’s first claim is that he was denied his right to a fair
and impartial jury and to due process of law when a biased juror
served on his jury. In particular, Johnson asserts that juror
Angela Layne was biased because she knew Johnson and
believed him to be a thief because she had in 2005 accused him of
burglarizing her home. An impartial, unbiased jury is guaranteed
to a criminal defendant by the Sixth Amendment to the federal
constitution and by Article 1, Section 13 of the Indiana
constitution.…
….
4. Johnson asserts that Layne was biased both in an actual and
an implied manner.…
5. As to the claim of actual bias, Johnson has failed to show the
[sic] Layne had any “real bias” against him. The only relevant
evidence of Layne’s predisposition in favor or [sic] against
Johnson is her testimony under oath along with her willingness
to admit to the Court she knew Johnson. Prior to trial during voir
dire, Layne readily and voluntarily reported to the Court that she
knew Johnson. While Johnson may argue that Layne had a
vendetta against him and wanted to be on his jury in order to
exact revenge, if that were the case it is highly unlikely Layne
would have identified herself and her relationship to the Court at
all, as she could assume Johnson would then report the 2005
confrontation with Layne and ask that she be removed from his
jury panel. Further, when questioned about bias, Layne
unequivocally affirmed to the Court under oath three (3) different
times that nothing about her prior association with Johnson
would affect her ability to be fair and impartial at his trial. When
asked at the PCR hearing whether she recalled telling Johnson’s
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PCR counsel Eichel she was “probably biased” at the trial, Layne
testified that she did not recall that conversation. Eichel did not
testify, so any implications about her recollections of the
conversation are not in evidence. There is no evidence from
which the Court can conclude Layne lied under oath either
during voir dire or at the PCR hearing. Finally, Layne testified
that [sic] at the PCR [sic] that she was not biased and there is no
evidence to contradict her statements under oath. Therefore, the
Court does not find that Layne had “actual” bias against
Johnson.
6. As to the claim of implied bias, because an inference of
implied bias has arisen based upon a relationship between a juror
and a party at trial, the Court must analyze the potential bias by
weighing the nature and extent of the parties’ connection and any
indications of partiality. The relationship between Layne and
Johnson was attenuated and short in duration. The only
evidence before the Court beyond Johnson’s self-serving
speculative testimony is Johnson’s and Layne’s factual testimony
that Layne had once accused Johnson of breaking into her home
in 2005. Layne testified that she believed her home had been
broken into in 2005 but she did not see a suspect. Layne recalled
that someone told her Johnson had been around her home at the
time of the break-in. Shortly thereafter, Layne asked Johnson, a
casual acquaintance from the neighborhood, if he had broken
into her home and he denied it. This much, Johnson does not
dispute.
7. At this point, Layne and Johnson disagree as to the
consequences of their discussion. Layne testified that after
Johnson’s denial, the two “left it at that.” She testified that she
did not consider the matter a crime or herself a victim of a crime,
that she did not report the break-in as a crime, that she harbors
no negative opinion of Johnson and that she forgot about the
incident until later. To the contrary, Johnson testified that Layne
believes he committed a crime against her and dislikes him.
Johnson’s belief, however, is merely speculation about Layne’s
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opinion of him, and he presents no supporting witness testimony
or other evidence to corroborate his speculation that Layne
thought of him as a thief. In her testimony, Layne has denied
that at trial she was not impartial. Without further evidence, the
Court cannot conclude that Layne and Johnson had a close or
enduring relationship in 2005 or thereafter that negatively
affected her ability to remain impartial in 2013.
8. Layne is not a victim or former victim or even a relative of a
victim of a crime committed by Johnson. There is no evidence
establishing that, to Layne, Johnson is any more than an
acquaintance she knew “in passing” whom [sic], many years ago,
she briefly believed may have done something wrong. The
evidence is that Layne then accepted Johnson’s denial of
committing a wrong. Layne never sought to prosecute Johnson.
The Court can find no Indiana precedent for overturning a
verdict during post-conviction relief proceedings based upon
implied bias where a petitioner had been briefly considered and
then dismissed as a suspect in an unrelated, uncharged incident
with a juror that occurred many years prior.
9. The Court has weighed the parties’ brief and attenuated
relationship against any indications of partiality. Layne’s
testimony at the PCR hearing indicates that she did not form any
type of opinion regarding Johnson. In fact, she did not recall the
interaction in question until sometime later in trial. There were
no other witnesses or other evidence showing that Layne had not
been impartial at trial. Because Johnson presented no evidence
beyond his speculation, the Court does not find that Layne was a
juror with an implied bias. Johnson was not denied of [sic] his
right to a fair and impartial jury and to due process on the basis
of a biased juror.
10. Johnson’s second claim is that he was denied his right to a
fair and impartial jury and to due process of law when a biased
juror concealed that bias before and during trial. As examples of
Layne’s alleged untruths and concealment of them, Johnson
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asserts that Layne failed to disclosed on her juror questionnaire
and during voir dire and trial that she had been the victim of a
2005 crime and that she knew Johnson because she believed
Johnson was a thief who perpetrated that crime. It is misconduct
for a juror to make false statements in response to questions on
voir dire examination, and such is held to constitute reversible
error because it impairs the right to challenge the juror, either
peremptorily or for cause.
11. Generally, proof that a juror was biased against the
defendant or lied on voir dire entitles the defendant to a new trial.
To obtain a new trial based on a claim of juror misconduct the
defendant must demonstrate that the misconduct was gross and
likely harmed the defendant. Furthermore, the defendant must
present “specific, substantial evidence” establishing that a juror
was possibly biased.…
12. The Court does not find that Layne committed gross
misconduct in failing to state on her juror questionnaire and
during voir dire and trial that she had been a victim or witness in a
criminal matter and that she knew Johnson because she many
years ago believed he had burglarized her home. In support of
that finding, the Court initially notes that Layne was not
deceptive in her response because no criminal investigation was
ever initiated after the 2005 incident. Thus, it was not a criminal
matter. The Court also finds that Layne was the first juror to
raise her hand when the jury was collectively asked if they knew
any of the trial participants. Layne was not at all reluctant to
admit that she knew Johnson. Her willingness to immediately
draw attention to her acquaintance with Johnson establishes to
the Court that Layne did not believe she concealed anything.
13. Further, her testimony at the PCR hearing reveals that Layne
did not believe she was misleading the Court in any of her
responses because she did not consider herself a victim of any
crime, let alone one committed by Johnson. In fact, it appears
that, once Layne finally recalled the 2005 incident, she did not
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think the occurrence was a crime at all because nothing was
stolen and she never reported it. She also appears to have
believed Johnson’s denial of involvement when she confronted
him. She then seems to have forgotten about the incident in the
ensuing eight (8) years, as she stated it had “never come up in her
mind” during voir dire. According to her testimony, it was such
an insignificant event that even when she remembered it later,
she did not report it to the Court, and if someone had asked her
about it, she would not have said anything because there was
“nothing to it.” This is consistent with her feeling “neutral”
toward Johnson and her belief that she was not biased again [sic]
him during trial. The Court concludes that Layne did not
withhold material information and did not commit gross
misconduct.
14. Moreover, there is little to indicate any actions or omissions
by Layne contributed to the jury’s guilty verdict. Layne testified
that she did not tell the other jurors about the 2005 incident.
Layne did not even recall voting to find Johnson guilty of the
offenses, so the likelihood that the 2005 incident contributed to
her vote to convict is quite low. Instead, the jury was presented
with overwhelming evidence from the store manager and the
officers from which it could confidently conclude that Johnson
committed the crimes for which he was convicted. There is no
evidence that Layne’s behavior harmed Johnson. Thus, Johnson
has failed to carry his burden of proof that he is entitled to a new
trial due to jury misconduct.
15. Johnson’s third claim is that his trial counsel provided
ineffective assistance in two manners: (A) by failing to
adequately question Layne about how she knew Johnson; and
(B) by failing to file a motion to correct error and failing to
request a hearing on Layne’s bias.…
16. First, a petition must show that counsel’s performance was
deficient.…
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17. Second, a petitioner must show that the deficient
performance prejudiced the defense.…
18. As to the allegation that counsel performed deficiently by
failing to adequately question Layne about how she knew
Johnson, Johnson asserts that an inquiry would have produced a
[sic] information supporting a challenge for cause that would
have been sustained by the Court.… Walton testified that he
relied upon Johnson’s assertion that “she’s cool” and choose [sic]
not to further question Layne. He also wished to keep Layne, an
African American, on the jury if at all possible so that Johnson,
an African American, could have a jury of his peers. Such a
strategy is not unreasonable and the Court does not second-guess
this strategy.
19. Further, there is no evidence upon further inquiry, Layne
would have stated that she knew Johnson as the person who
burglarized her home in 2005, thus resulting in removal for cause
because Layne believed she was a prior crime victim of Johnson.
To the contrary, Layne testified in the hearing that she did not
realize until later in the trial, well after voir dire, that Johnson was
the same person someone stated was near her home after the
possible burglary in 2005. If counsel had asked Layne more
about how she knew Johnson, it is not known whether Layne
would have made the association between Johnson and the event
eight (8) years prior any earlier than she did.
20. … Further, it is unclear whether Layne would have disclosed
any incident she considered inconsequential even if questioning
jogged her memory. Layne stated that once trial was in progress
and she remembered the incident and Johnson’s association with
it, if questioned she would not have said anything because there
was “nothing to it.” It is obvious that Layne did not consider
herself Johnson’s crime victim because she was never sure
Johnson was involved at all and she did not even consider the
incident a crime. She did not witness Johnson at her home, she
was not sure anything was taken, she never reported the incident,
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and she dismissed the matter after confronting Johnson and
accepting his denial. Consequently, further questioning by
Walton during voir dire would not have elicited information
sufficient to justify removal for cause. Because Johnson failed to
show a reasonable probability that, but for counsel’s omission,
the result of the proceeding would have been different, Johnson
has not proven prejudice.
21. As to Johnson’s allegation that counsel performed deficiently
when he failed to file a motion to correct error and to request a
hearing regarding Layne’s bias, Johnson asserts that had counsel
done so, the Court would have granted it. Johnson claims that,
because of counsel’s omission, he was denied his right to a fair
and impartial jury.
22. To have prevailed on a Motion to Correct Error based upon
the presence of Layne, Johnson would had to have proven that
prejudicial or harmful error was committed because Layne was
indeed a biased juror. As concluded above, Johnson has not
proven either actual or implied bias as to Layne and, therefore,
such a motion would not have been granted. Consequently,
Johnson was not prejudiced by Walton’s failure to file a motion
that would not have been successful and, therefore, Walton did
not provide ineffective assistance.
Appealed Order at 1-18 (citations and underlining omitted). Johnson now
appeals.
Discussion and Decision
[9] “Defendants who have exhausted the direct appeal process may challenge the
correctness of their convictions and sentences by filing a post-conviction
petition.” Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied (2003).
“Post-conviction proceedings are civil proceedings, and a defendant must
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establish his claims by a preponderance of the evidence.” Id. “Because
[Johnson] is now appealing from a negative judgment, to the extent his appeal
turns on factual issues, he must convince this Court that the evidence as a
whole leads unerringly and unmistakably to a decision opposite that reached by
the post-conviction court.” Id. “In other words, [Johnson] must convince this
Court that there is no way within the law that the court below could have
reached the decision it did.” Id. “[W]e do not defer to the post-conviction
court’s legal conclusions[.]” Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017).
“The post-conviction court is the sole judge of the weight of the evidence and
the credibility of witnesses.” Crowder v. State, 91 N.E.3d 1040, 1048 (Ind. Ct.
App. 2018). “We consider only the probative evidence and reasonable
inferences supporting the judgment and reverse only on a showing of clear
error.” State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013). “Clear error is ‘that
which leaves us with a definite and firm conviction that a mistake has been
made.’” Id. (quoting Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995)).
Court of Appeals of Indiana | Memorandum Decision 19A-PC-104 | July 8, 2019 Page 17 of 22
Section 1 – The post-conviction court did not clearly err in
concluding that Johnson was not denied the right to an
impartial jury.
[10] Johnson first contends that the post-conviction court clearly erred in concluding
that he was not denied the right to an impartial jury.2 “An impartial jury is the
cornerstone of a fair trial, guaranteed by the Sixth Amendment and Article 1,
Section 13 of our Indiana Constitution.” Ramirez v. State, 7 N.E.3d 933, 936
(Ind. 2014). “[T]his right is an essential element of due process[,]” and “a
biased juror must be dismissed.” Caruthers v. State, 926 N.E.2d 1016, 1020 (Ind.
2010). “Generally, proof that a juror was biased against the defendant …
entitles the defendant to a new trial.” Alvies v. State, 795 N.E.2d 493, 499 (Ind.
Ct. App. 2003), trans. denied.
[11] “A juror’s bias may be actual or implied.” Id. Absent a juror’s admission of
partiality, actual bias can arise “by inference from some connection of the juror
to the case, where the nexus is insufficient to create implied bias.” Threats v.
2
“Post-conviction procedures do not afford a petitioner with a super-appeal, and not all issues are available.”
Stevens, 770 N.E.2d at 746 (quoting Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied (2002)).
“If an issue was known and available but not raised on direct appeal, it is waived.” Id. (quoting Timberlake,
753 N.E.2d at 597). The State asserts that the issues regarding Layne’s alleged bias and misconduct were
known and available on direct appeal and are therefore waived. But, as the post-conviction court correctly
observed in finding 30(b) of its order, Johnson’s appellate counsel did not raise these issues on appeal because
“she did not have the record to properly do so.” Appealed Order at 9. Appellate counsel could have used the
Davis/Hatton procedure to terminate or suspend Johnson’s direct appeal and pursue a petition for post-
conviction relief on those issues, see Talley v. State, 51 N.E.3d 300, 302 (Ind. Ct. App. 2016), trans. denied, but
she was not obligated to do so, and her not doing so did not result in waiver.
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State, 582 N.E.2d 396, 398 (Ind. Ct. App. 1991), trans. denied (1992).3 A
“finding of actual bias turns on a calculus incorporating the nature of the link
and any indications of partiality.” Id. “Implied bias is attributed to a juror upon
a finding of a certain relationship between the juror and a person connected to
the case, regardless of actual partiality.” Alvies, 795 N.E.2d at 499. Where an
inference of implied bias arises, the court “should analyze such potential bias by
considering the nature of the connection and any indications of partiality.” Id.
“The court ‘must weigh the nature and extent of the relationship versus the
ability of the juror to remain impartial.’” Id. (quoting Lee v. State, 735 N.E.2d
1112, 1115 (Ind. 2000)).
[12] Johnson claims that “the overall nature of the connection between Layne and
Johnson overwhelmingly indicates bias exists. A juror who had previously
accused Johnson of committing a crime against her served on his jury.”
Appellant’s Br. at 26. Johnson disregards the post-conviction court’s finding
that his relationship with Layne was “brief and attenuated,” Appealed Order at
13, which is supported by their statements (Johnson’s at the sentencing hearing
3
Johnson complains that “[t]he post-conviction court incorrectly applied a ‘real bias’ standard when it
analyzed whether Layne had actual bias against Johnson.… Indiana law does not require an express
admission of bias, rather, a juror’s actual bias can arise by inference.” Appellant’s Br. at 32-33. We presume
that the post-conviction court’s reference to “real bias” derives from Block v. State, 100 Ind. 357 (1885), which
the court cited in conclusion 4 of its order. See id. at 362 (“The ‘bias’ which disqualifies a juror is of two
kinds, ‘actual bias’ and ‘implied bias.’ Actual, where a real bias for or against one of the parties exists.
Implied, where the relations which the juror sustains to one of the parties are such as to raise a presumption of
bias in his favor.”). Although the court did not specifically acknowledge that actual bias may arise by
inference, it effectively concluded that no inference of actual bias could reasonably be drawn in this case by
rejecting Johnson’s “vendetta” theory in conclusion 5. Appealed Order at 11. We cannot say that this
conclusion is clearly erroneous.
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and Layne at the PCR hearing) that the 2005 “burglary” slipped their minds
until after voir dire was completed at the 2013 trial. Johnson also disregards
Layne’s sworn statements during voir dire that she could “be fair and impartial”
and give Johnson “a fair shake” despite their prior acquaintance (which she had
voluntarily disclosed), as well as her sworn statements at the PCR hearing that
she was not biased against Johnson at trial, that she did not consider herself to
be the victim of a crime, and that she “left it at that” when Johnson denied
burglarizing her home. Pet. Ex. B at 64, PCR Tr. Vol. 2 at 10.4 The post-
conviction judge, who was also the trial judge, specifically found these
statements credible, and we may not second-guess that determination on
appeal.5 Based on the foregoing, we cannot say that the post-conviction court
clearly erred in concluding that Layne did not have actual or implied bias
against Johnson and that Johnson was not denied the right to an impartial jury.
Section 2 – The post-conviction court did not clearly err in
concluding that Johnson is not entitled to a new trial based on
Layne’s alleged misconduct.
[13] Johnson also contends that the post-conviction court clearly erred in concluding
that he is not entitled to a new trial based on Layne’s alleged misconduct. “To
4
After Layne testified that she “left it at that[,]” she was asked whether she had believed Johnson’s denial.
She replied, “I didn’t know what to believe at that point.” PCR Tr. Vol. 2 at 14. Johnson characterizes this
statement as an indication that Layne “did not trust him or his word.” Appellant’s Reply Br. at 7. This
disregards Layne’s earlier testimony that she “didn’t know him to trust him or not[,]” PCR Tr. Vol. 2 at 10,
which squares with her decision to “[leave] it at that.”
5
To the extent Johnson suggests that a court may not rely on a juror’s own statements of impartiality, our
supreme court said otherwise in Ramirez. 7 N.E.3d at 941.
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obtain a new trial based on a claim of juror misconduct, the defendant must
demonstrate that the misconduct was gross and likely harmed the defendant.”
Stephenson v. State, 864 N.E.2d 1022, 1055 (Ind. 2007), cert. denied (2008).
Johnson asserts that Layne committed misconduct by failing to disclose that she
was “Johnson’s past burglary victim” and that he was harmed because he was
denied the right to an impartial jury. Appellant’s Br. at 38.6 As indicated by the
post-conviction court, Layne “did not consider herself a victim of any crime, let
alone one committed by Johnson.” Appealed Order at 14 (conclusion 13).
And even if Layne should have disclosed during trial that she had asked
Johnson about the burglary, Johnson was not harmed because he was not
denied the right to an impartial jury. Accordingly, we find no clear error here.
Section 3 – The post-conviction court did not clearly err in
concluding that Johnson’s trial counsel was not ineffective.
[14] Finally, Johnson challenges the trial court’s conclusion that he did not receive
ineffective assistance of trial counsel. “The Sixth Amendment guarantees
criminal defendants the right to the effective assistance of counsel.” Johnson v.
State, 948 N.E.2d 331, 334 (Ind. 2011), cert. denied (2012). We evaluate
ineffectiveness claims under the two-part test enunciated in Strickland v.
Washington, 466 U.S. 668 (1984). Rondeau v. State, 48 N.E.3d 907, 916 (Ind. Ct.
6
Johnson also contends that Layne’s “disclosure would have provided a valid basis for a challenge for
cause[.]” Appellant’s Br. at 39. But Layne’s undisputed testimony establishes that she did not recall the
alleged burglary until after voir dire was completed. See PCR Tr. Vol. 2 at 10 (“It really didn’t come up in
my mind at the time.”).
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Ohio App. 2016), trans. denied. “To prevail on an ineffective assistance of counsel
claim, a defendant must demonstrate both deficient performance and resulting
prejudice.” Id. “Deficient performance is that which falls below an objective
standard of reasonableness.” Id. “Prejudice exists when a claimant
demonstrates that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” Id. (quoting Strickland, 466 U.S. at 694). The two Strickland prongs
are separate and independent inquiries, so if it is easier to dispose of an
ineffectiveness claim based on lack of sufficient prejudice, that course should be
followed. Id.
[15] Johnson contends that Walton, his trial counsel, performed deficiently in failing
to question Layne more specifically about her acquaintance with Johnson
during voir dire and in failing to file a motion to correct error to preserve the
bias issue for appeal. He contends that he “was prejudiced because his jury was
not impartial.” Appellant’s Br. at 43. We have already determined otherwise,
so Johnson’s ineffectiveness claim fails. Therefore, we affirm.
[16] Affirmed.
Bradford, J., and Tavitas, J., concur.
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