STATE OF INDIANA,
)Supreme Court case no.
Vanderburgh Circuit Court
case no. 82C01-9407-CF-447
This order addresses the petition for successive post-conviction relief. The Court has
jurisdiction over this matter because it concerns a death sentence. See Ind.
Appellate Rule 4(A)(1)(a).
Background. Petitioner was charged, pursuant to Indiana Code Section 35-42-1-1, with having
knowingly murdered three people (his wife, her brother and the brothers wife) in
1994. The jury unanimously convicted petitioner of the three murders in the
guilt phase of the trial.
The State sought the death penalty, alleging as the aggravating circumstance that petitioner
had committed multiple murders.
See I.C. § 35-50-2-9(b)(8) (Supp. 1994) (The defendant
has committed another murder, at any time, regardless of whether the defendant has
been convicted of that other murder.). The jury unanimously recommended the death
sentence in the penalty phase. The Vanderburgh Circuit Court followed the jurys
unanimous recommendation, and sentenced petitioner to death in the sentencing phase. See
I.C. § 35-50-2-9(e)(2) (Supp. 1994).
The conviction and sentence were affirmed on direct appeal in
Wrinkles v. State,
690 N.E.2d 1156 (Ind. 1997), cert. denied, 525 U.S. 861 (1998). A
collateral challenge to the conviction and sentence under Indianas rules for post-conviction relief
was denied by the post-conviction court and affirmed on appeal in Wrinkles v.
State, 749 N.E.2d 1179 (Ind. 2001), cert. denied 122 S.Ct. 1610 (2002).
After exhausting the review to which he was entitled as a matter of
right in state court, petitioner initiated proceedings in a federal district court seeking
a writ of habeas corpus. See Wrinkles v. Anderson, case no. IP
01-1668-C-T/K (S.D. Ind.). The habeas action remains pending and the district court
has stayed execution of the death sentence.
Post-Conviction Rule 1, Section 12. The Courts rules permit a person convicted
of a crime in an Indiana state court to challenge the conviction and
sentence collaterally in a post-conviction proceeding. See Ind. Post-Conviction Rule 1.
As indicated above, petitioner has already availed himself of that procedure. Post-Conviction
Rule 1, Section 12 specifies the procedure for requesting a second, or successive
collateral review. The rule states:
(b) The court will authorize the filing of the petition if the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction relief. In making this determination, the court may consider applicable law, the petition, and materials from the petitioners prior appellate and post-conviction proceedings including the record, briefs and court decisions, and any other material the court deems relevant.
The claims petitioner seeks to litigate in a successive post-conviction proceeding are addressed in turn below.
1. Ring v. Arizona, 122 S.Ct. 2248 (2002). See Petition for
Post-Conviction Relief (hereafter Petition), ¶ 8(A), 9(A); Tender of Successive Petition (hereafter Tender),
¶ 4 p. 2-3.
In Ring, the United States Supreme Court overruled Walton v. Arizona, 497 U.S. 639 (1990), to the extent it allowed the judge, not the jury, to find an aggravating circumstance that supported a death sentence, and decided that Apprendi v. New Jersey, 530 U.S. 466 (2000), applies to Arizonas death penalty scheme. Apprendi announced the rule that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Ring was decided after petitioners sentence was final.
Petitioner contends that
Ring invalidates Indianas death penalty scheme in general and his
death sentence in particular. Specifically, petitioner contends that the sentence is invalid
because there was no specific jury verdict finding that the aggravating circumstance had
been proven beyond a reasonable doubt or that the aggravating circumstance outweighed mitigating
circumstances, that the three murder convictions did not compel the jury to have
found that the aggravating circumstance outweighed the mitigating circumstances, and that the jury
was incorrectly instructed that its role was only advisory. Petitioner further asserts
that even though Ring was decided well after his death sentence was imposed,
it should be applied retroactively.
The Court need not decide whether
Ring applies retroactively or whether some aspects
of Indianas death penalty scheme are affected by Ring, because Ring is not
implicated in petitioners case under any view that the Court might find plausible.
The aggravating circumstance that made petitioner eligible for a death sentence was
that he had committed multiple murders. See I.C. § 35-50-2-9(b)(8). The
jurys verdict in the guilt phase, finding petitioner guilty of the three murders,
necessarily means that the jury found, beyond a reasonable doubt, that petitioner had
committed more than one murder. In addition, the jury was instructed that
before it could recommend that a death sentence be imposed, the jury must
find the existence of the charged aggravating circumstance beyond a reasonable doubt and
that the aggravating circumstance outweighed the mitigating circumstances. Therefore, the jury necessarily
determined the fact of the multiple-murder aggravating circumstance beyond a reasonable doubt.
Accord Obadyah Ben-Yisrayl v. State, no. 45S00-0112-SD-636, unpublished Order Concerning Successive Post-Conviction Relief
(Ind. Feb. 15, 2002) (rejecting argument that Apprendi rendered death sentence invalid and
denying leave to file successive post-conviction petition in case where the multiple-murder aggravating
circumstance had been charged, defendant had been convicted of multiple murders and was
sentenced to death over the jurys recommendation against a death sentence).
Moreover, in his direct appeal, petitioner made some of the same arguments relating
to Indianas death penalty scheme and its operation that petitioner now makes in
the successive post-conviction petition. See Wrinkles, 749 N.E.2d at 1164-69. The
difference is that petitioner now cites Ring. To the extent the claims
now presented are the same claims made and rejected in the prior proceedings,
the claims are res judicata. See, e.g., Daniels v. State, 741 N.E.2d
1177, 1184 (Ind. 2001).
Petitioner has not established a reasonable possibility that he is entitled to post-conviction relief on this claim.
2. Prosecutors remarks. Petition, ¶ 8(B), 9(B); Tender, ¶ 5 p. 3-5. The prosecutor made comments during closing argument which arguably referred to a death-eligible aggravating circumstance that had not been charged in petitioners case. The remarks are quoted in the Petition, ¶ 9(A)(5).
No objection was made to the remarks at trial. No claim of
fundamental error based on the remarks was presented in the direct appeal.
No claim that petitioner was deprived of the right to effective assistance of
counsel in relation to the remarks was made in the prior post-conviction proceeding.
Therefore, petitioner has waived any error based on the prosecutors remarks that
was available to petitioner in the prior proceedings.
See, e.g., Sanders v.
State, 765 N.E.2d 591, 592 (Ind. 2002); Wrinkles, 749 N.E.2d at 1187, n.3;
Daniels, 741 N.E.2d at 1184-88; Canaan v. State, 683 N.E.2d 227, 235 n.6
Furthermore, to the extent petitioner now contends that post-conviction counsel were ineffective in
not asserting the prosecutors remarks as a basis for post-conviction relief, the claim
presents no cognizable grounds for relief.
See Daniels, 741 N.E.2d at 1190;
Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989) (We adopt the standard
that if [post-conviction] counsel in fact appeared and represented the petitioner in a
procedurally fair setting which resulted in a judgment of the court, it is
not necessary to judge his performance by the rigorous standard set forth in
Strickland v. Washington.).
Petitioner argues he is excused from not objecting at trial and not raising
the argument in prior proceedings because there has been a change in the
law that applies retroactively to his case. He cites
Nicholson v. State,
768 N.E.2d 443, 446 (Ind. 2002), and contends the case implicitly but directly
overruled long-standing precedent by holding that a sentencer may not consider an aggravating
circumstance that is not charged. Tender, ¶ 5.
Nicholson changed the law need not be addressed because what happened in
Nicholson did not happen in petitioners case. In Nicholson, the defendant was
charged with two aggravating circumstances in Indiana Code section 35-50-2-9(b). Following the
jurys recommendation (in Nicholson, the recommendation was life without parole, not a death
sentence), the trial courts sentencing statement referred to the two charged aggravating circumstances
plus an additional one that had not been charged. On direct appeal,
this Court reversed the sentence after deciding that neither of the two charged
aggravating circumstances was supported by sufficient evidence. With respect to the aggravating
circumstance that the trial court found sua sponte, this Court wrote that it
was error for the trial court to list this as an aggravator because
the State did not allege it. 768 N.E.2d at 447.
In petitioners case, on the other hand, the trial courts sentencing statement does
not refer to an uncharged aggravating circumstance. Direct Appeal Record at 409.
In addition, the jury was instructed that the charged aggravating circumstance was
the only aggravating circumstance the jury was allowed to consider. Direct Appeal
Record at 192. In short, there is no indication that an uncharged
aggravating circumstance played any role in the jurys recommendation for, or the trial
courts imposition of, a death sentence.
Petitioner has not established a reasonable possibility that he is entitled to post-conviction relief on this claim.
3. The jury venire. Petition, ¶ 8(C), 9(C); Tender, ¶
5 p. 5. Petitioner states that the jury venire consisted of
at least ninety-four people, only one of whom was African-American. Petitioner asserts
that the relevant census data shows Vanderburgh County has an African-American population higher
than 8.5%. Petitioner contends he was denied a jury drawn from a
fair cross-section of the community because minority under-representation of this magnitude could not
have occurred by random, and therefore, African-Americans must have been systematically excluded from
The makeup of the jury venire was not objected to at trial and
was not raised as the basis of any argument in the direct appeal
or the first post-conviction proceeding. Thus, to the extent petitioners argument was
available to him in the prior proceedings, it is waived.
Sanders, 765 N.E.2d at 592; Wrinkles, 749 N.E.2d at 1187, n.3; Daniels, 741
N.E.2d at 1184-88; Canaan, 683 N.E.2d at 235 n.6.
Even where error has been preserved at trial and the issue raised on
direct appeal, some showing is required that an under-representation is due to systematic
exclusion of the group in the jury-selection process.
Dye v. State, 717
N.E.2d 5, 19 (Ind. 1999) (rejecting defendants argument that the trial court erred
in not postponing trial while defendant investigated a racial disparity or in not
supplementing the venire pursuant to a procedure set out in state statutes).
Petitioner acknowledges that error was not preserved, but directs the Courts attention to
Zolo Azania v. State, case no. 02S00-0009-SD-538, another successive post-conviction capital case.
In Azania, the Court allowed the filing of a successive petition on a
claim that an error in a computer program systematically eliminated more than a
quarter of the jury pool and up to 70% of the eligible African-American
jurors. See Azania v. State, 738 N.E.2d 248 (Ind. 2000) (published
order). However, unlike the petitioner in that case, petitioner here fails to
make any showing of a systematic exclusion from the jury pool. Petitioner
has not established a reasonable possibility that he is
entitled to post-conviction relief on this claim.
For the reasons set forth above, petitioner has not established a reasonable possibility
that he is entitled to post-conviction conviction relief on any of the claims
presented. Accordingly, the request for leave to file a successive post-conviction relief
petition is DENIED.
The Clerk is directed to send a copy of this order to the
Vanderburgh Circuit Court, the Hon. Carle Heldt, Judge; to the U.S. District Court,
Southern District of Indiana, the Hon. John D. Tinder, Judge, 304 U.S. Courthouse,
46 E. Ohio St., Indianapolis, IN 46204; to the Public Defender of Indiana;
to the Attorney General of Indiana; to Paula Sites at the Public Defenders
Counsel; and to counsel of record.
DONE AT INDIANAPOLIS INDIANA, this 15th day of October, 2002.
/s/ Randall T. Shepard
Chief Justice of Indiana
Shepard, C.J., Dickson, Sullivan, Boehm, and Rucker, JJ., concur.