ATTORNEY FOR APPELLANT
Hilary Bowe Oakes
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
SUPREME COURT OF INDIANA
MICHAEL DOWDELL, )
Appellant (Defendant Below ), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9703-CR-224
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Alex Murphy, Judge Pro Tempore
The Honorable Paula E. Lopossa, Judge
Cause No. 49G01-9508-CF-120351
ON DIRECT APPEAL
December 16, 1999
Michael Dowdell was convicted of two counts of felony murder, one count of
attempted murder, one count of robbery, and three counts of criminal confinement.
He was sentenced to an aggregate term of 160 years imprisonment. After
initiating his direct appeal, he sought and obtained leave to suspend the appeal
and pursue postconviction relief in the trial court. Postconviction relief was denied
by the trial court and Dowdell now raises four issues in this consolidated
appeal: (1) the trial courts exclusion of witnesses, (2) ineffective assistance of
counsel, (3) the giving of fundamentally erroneous jury instructions, and (4) the trial
courts failure to articulate mitigating circumstances and use of improper aggravating circumstances in
its sentencing statement. Because the postconviction courts findings are insufficient to allow
appellate review, we remand this case to the postconviction court for additional findings.
In the event the postconviction court denies relief, Dowdell is entitled to
resentencing on this record.
Factual and Procedural Background
Kenneth Pack and Kimberly Renee Saxton had their first date on the evening
of August 22, 1995. The two ate take-out food at Packs house
and then watched television. Packs roommate, Lawrence Moore, was also at home
but remained in his bedroom. At about 8:30 p.m., Pack heard a
knock at the door and answered it. He saw Dowdell, whom he
had known for nearly twenty years, on the front step. When Pack
opened the door, another man stepped out from behind Dowdell and put a
gun to Packs head. The armed stranger led Pack to the kitchen
where he then ordered him to call for whomever was in the house.
Pack complied, and Moore and Saxton came to the kitchen. The
stranger ordered Saxton to tie up Pack and Moore, which she did.
The stranger then held the three at gunpoint while Dowdell ransacked the house.
Dowdell later returned to the kitchen and spoke to the stranger who
responded by asking where the money was and firing a bullet into the
ceiling. Pack told the robbers that he had $200 tucked under a
sofa cushion. Dowdell returned and, according to Packs testimony, whispered something to
[the stranger] and then the [stranger] just starting shooting. Saxton and Moore
both died of the gunshot wounds. Pack survived.
Dowdell was arrested and charged with two counts of felony murder, one count
of attempted murder, one count of robbery, and three counts of criminal confinement.
The States primary witness at trial was Pack. In addition, the
State called Anthony Ross who testified that, while he was waiting in a
holding cell to appear in court in August of 1995, Dowdell told him
that he and another man had gone to Packs house and shot the
people inside because Dowdell and a friend had got beat out [of] some
drugs. A jury found Dowdell guilty on all counts and the trial
court sentenced him to an aggregate term of 160 years imprisonment. Dowdell
initiated a direct appeal of his convictions but then sought leave to pursue
postconviction relief in the trial court. Leave was granted, and Dowdell filed
a petition for postconviction relief in the trial court, which was denied.
The direct appeal was then reinstated and consolidated with the appeal from the
denial of postconviction relief.
I. Exclusion of Witnesses
A member of Dowdells family hired Randall Cable to represent Dowdell. Cable
entered his appearance on August 29, 1995. On March 1, 1996,
Cable filed a motion for continuance that stated he was still engaged in
Discovery. On April 29, the State filed a motion to compel, requesting
that Cable disclose the names of witnesses he intended to call at trial.
The trial court granted the motion, ordered Cable to file a response
within five days and further noted that the sanction of exclusion of said
evidence may be granted if this order is not complied with. Cable
did not file a response but rather, on May 9, filed a Motion
for Continuance and Extension of Time to File Discovery Response. The motion
asserted that Cable had experienced difficulty in getting his client and family to
supply requested discovery information sought by the State, but stated that he had
received a call the previous afternoon from Dowdells brother giving him four names
with addresses and six names without other identifiers. The trial was continued
to July 8. Cable filed another motion for a continuance on July
5. This motion asserted that counsel had met with Dowdells brother on
June 28 and that Dowdells brother was to return with additional information.
According to the motion, the State agreed to a continuance of the trial
to August 5 and to an extension to comply with discovery until July
17. The trial court granted the motion.
On August 5, the morning of trial, Cable filed a list of witnesses
containing ten names, four of which had addresses. The trial court refused
to permit the addition of these witnesses, observing that the list was filed
the morning of trial and therefore did not comply with the courts discovery
rules and also violated the order to compel. Dowdell was not permitted
to call the belatedly listed witnesses and did not testify himself. The
jury was unable to reach a verdict and a mistrial was declared.
The case was scheduled for trial three weeks later but was then continued
to October 21. Cable filed no written motion asking the trial court
to reconsider the exclusion of witnesses but did orally request that the trial
court reconsider the exclusion on the morning of the second trial. The
oral motion was denied. Dowdell contends that the trial courts ruling on
the exclusion of witnesses was error and that Cable rendered ineffective assistance by
not filing a witness list sooner or seeking reconsideration of the denial.
Exclusion by the Trial Court
Dowdell has waived any error in the exclusion of witnesses. It
is well settled that an offer of proof is required to preserve an
error in the exclusion of a witness testimony. See Herrera v. State,
679 N.E.2d 1322, 1325 (Ind. 1997) (citing Wisehart v. State, 491 N.E.2d 985,
991 (Ind. 1986)). An offer of proof allows the trial and appellate
courts to determine the admissibility of the testimony and the potential for prejudice
if it is excluded. See id. Dowdells failure to
make an offer of proof waives any error in the exclusion of these
Ineffective Assistance of Counsel
To establish a violation of the Sixth Amendment right to effective assistance of
counsel, Dowdell must show that (1) counsels performance fell below an objective standard
of reasonableness based on prevailing professional norms; and (2) there is a reasonable
probability that, but for counsels errors, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id. at 694. More recently, the Supreme Court of the United States
held that prejudice resulting from ineffective assistance is not established unless the error
rendered the result of the proceeding fundamentally unfair or unreliable. See Lockhart
v. Fretwell, 506 U.S. 364, 369 (1993).
Dowdells ineffective assistance claim was raised in his petition for postconviction relief.
Dowdell bore the burden in the postconviction court of establishing the grounds for
relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
Because he is now appealing from a negative judgment, to the extent his
appeal turns on factual issues Dowdell must meet the higher standard of convincing
this Court that the evidence as a whole leads unerringly and unmistakably to
a decision opposite that reached by the postconviction court.
Harrison v. State,
707 N.E.2d 767, 773 (Ind. 1999), petition for cert. filed (U.S. Aug. 16,
1999) (No. 99-5793) (citing Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995)).
We will disturb the decision only if the evidence is without conflict
and leads only to a conclusion contrary to the result of the postconviction
court. Id. at 774.
Dowdell testified at the postconviction hearing and also called Cable and four other
witnesses. When asked if Dowdell ever provided him with names of witnesses
that could verify his alibi, Cable responded that he did not recall.
In response to other questions Cable stated that he was not given a
full list or a complete list of as to a list to
ever timely file anything and didnt feel [he] had enough information to adequately
[complete] the list. Cable testified that he was somewhat cognizant of the
stringent discovery rules of the trial court. Nevertheless, he chose not to
file a witness list based on his limited information. Finally, Cable testified
that he did not recall what attempts were made to contact the witnesses
whose names and/or addresses he was given. The postconviction court entered findings
of fact and conclusions of law denying relief because Dowdell had not established
his claim of ineffective assistance of counsel.
The findings were based largely on the deficient performance prong of Strickland.
The postconviction court found in part that
the actions or inactions characterized by the petitioner as deficient performance were, instead,
the product of trial strategy or tactics. . . . Despite testimony
[from] friends and/or relatives of the petitioner that counsel was provided information regarding
identity of potential defense witnesses, the Court concludes that neither the Courts record
nor counsels own testimony supports such claims.
The State points to
Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998),
in which this Court observed that [a] decision regarding what witnesses to call
is a matter of trial strategy which an appellate court will not second-guess,
although a failure to call a useful witness can constitute deficient performance.
(internal citation omitted). It contends that Cables performance was not deficient because
he did not have enough information to file a witness list. We
II. Jury Instructions
The motion for continuance filed on May 9, 1996 stated that Cable had
been given the names of ten potential witnesses and addresses for four of
them. Cable could have filed a witness list at that time, but
did not. Moreover, it appears that Cable did nothing to find additional
information about these witnesses. In the face of an order to compel
that explicitly mentioned exclusion as a potential sanction, Cable filed no witness list
and apparently did no independent investigation. Rather, he sought a continuance and
then, on the morning of trial, filed a belated witness list. In
addition, after the first trial ended in a hung jury, Cable did not
file a written request for reconsideration of the trial courts ruling on exclusion
but rather raised the issue orally on the morning of the second trial.
Finally, Cable made no offer of proof to preserve any error in
the trial courts exclusion of the witnesses. Under these circumstances, we conclude
that the evidence leads to the conclusion that Cables actions were not a
product of trial strategy or tactics but rather were deficient performance.
Bryant v.Scott, 28 F.3d 1411, 1418 (5th Cir. 1994) (finding deficient performance because
defense counsel knew of three alibi witnesses before trial and should have made
some effort to contact or interview these people in furtherance of [the] defense);
cf. Herrera, 679 N.E.2d at 1326 (finding no deficient performance for failing to
file a list of supplemental witnesses because defendant did not show that the
list could have been produced earlier).
The postconviction rules explicitly require trial courts to make specific findings of
fact and conclusions of law on all issues presented . . . .
Ind. Post-Conviction Rule 1(6). Although the postconviction court entered findings, the
findings focused on the deficient performance prong of Strickland. As explained above,
that determination was clearly erroneous. What remains is the following language from
footnote 2 of the postconviction courts findings: The Court notes
that despite [the ruling on the exclusion of witnesses], the jury in the
first trial was unable to come to a decision. This fact suggests
that the ruling was not crippling, and that counsels inability to obtain a
contrary ruling was not prejudicial to petitioners cause. To the extent that
this is a finding as to the prejudice prong of Strickland, it, too,
is clearly erroneous. The fact that the first trial ended in a
hung jury suggests that, at least in the mind of some jurors, there
was a reasonable doubt surrounding Dowdells guilt. The addition of alibi witnesses
may very well have swayed other jurors. One cannot conclude from a
prior hung jury that as a general proposition there is no reasonable possibility
that newly presented evidence would affect the result.
Nevertheless, an appellate court may affirm a trial courts judgment on any theory
supported by the evidence.
See, e.g., Yanoff v. Muncy, 688 N.E.2d 1259,
1262 (Ind. 1997) Although the State does not specifically invoke this doctrine, it
does make an extensive argument directed to establishing lack of prejudice. Of
the witnesses who testified at the postconviction hearing, only Candis Johnson testified that
she was with Dowdell the entire evening of the crimes. Dowdells sister
testified that she saw Dowdell early that evening and then called and spoke
to him on the phone twice, at around 9:15 p.m. and 10:30 p.m.
The State contends that Dowdell has not established prejudice because Pack
repeatedly and unequivocally identified Dowdell as one of his assailants. . . .
On the other hand, the testimony presented at [Dowdells] postconviction hearing
does not unequivocally establish an alibi defense because Johnson, the only witness whose
testimony did account for Dowdells presence for the entire evening, is Dowdells girlfriend
and the mother of his child. Consequently, the jury would be aware
of her bias and likely view her testimony with skepticism. Given the
strong nature of Packs testimony against the relatively weak alibi evidence, it is
unlikely that this evidence would have impacted the jurys verdict.
Although the State presents one plausible view of the evidence it chooses to
emphasize, the postconviction court made no such finding. As this Court recently
observed in State v. McCraney, ___ N.E.2d ___, ___ (Ind. 1999), 1999 WL
1051960, [w]hether a witness testimony at a postconviction hearing is worthy of credit
is a factual determination to be made by the trial judge who has
the opportunity to see and hear the witness testify. The postconviction courts
findings in this case shed no light on whether or not it shared
the States view of Dowdells alibi witnesses or whether there was a reasonable
probability that their testimony would have led to an acquittal in light of
the other evidence at trial.
The principal purpose of findings of fact is to have the record show
the basis of the trial courts decision so that on review the appellate
court may more readily understand the formers view of the controversy.
v. State, 257 Ind. 57, 59, 272 N.E.2d 456, 458 (1971) (quoting 3
William F. Harvey, Indiana Practice 426 (1970)). Findings of fact must be
sufficient to enable this Court to dispose of the issues upon appeal. Taylor
v. State, 472 N.E.2d 891, 892 (Ind. 1985). Here, the footnote relating
to prejudice in the postconviction courts findings is insufficient to allow appellate review
of prejudice under Strickland. We remand this case to the postconviction court
to enter findings of fact and conclusions of law on that issue.
Dowdell next contends that four of the trial courts instructions were erroneous.
He concedes that trial counsel did not object to any of these instructions
and therefore any claim of error is generally waived. However, he seeks
to avoid procedural default by couching his argument in terms of fundamental error.
Counts one and two of the information charged Dowdell with the felony murder
of Moore and Saxton, i.e., killing while committing or attempting to commit the
crime of robbery. Preliminary instruction 8 and final instruction 36 advised the
jury that [t]he crime of felony murder is defined by statute as follows:
a person who knowingly or intentionally kills another human being, or kills
another human being while committing or attempting to commit . . . robbery
. . . commits felony murder. These instructions continued by listing the
elements necessary for a conviction for felony murder: The defendant on or
about August 22, 1995, 1. killed 2. [Moore/Saxton] while committing
or attempting to commit the crime of robbery which is to (a) knowingly
(b) take from the person or presence of [Moore/Saxton] property, that is:
United State[s] currency (c) by putting [Moore/Saxton] in fear or by using
or threatening the use of force on [Moore/Saxton]. The instructions concluded that
if the State did not prove each of these elements beyond a reasonable
doubt the jury should find Dowdell not guilty of felony murder as charged
in . . . the Amended Information. Dowdell contends that these instructions
were erroneous because they allowed the jury to convict him of felony murder
based on proof of a knowing or intentional killing.
The instruction listed only the elements of felony murder and concluded that the
jury should return a verdict of not guilty if any of these elements
was not proven. Although the trial court should not have included the
superfluous definition of knowing/intentional murder as part of its instruction on felony murder,
its inclusion does not constitute fundamental error.
See Wallace v. State, 553
N.E.2d 456, 465-66 (Ind. 1990) (The mention of intentional murder was merely in
the definitional part of the statute read to the jury and they were
not given the option of considering either [intentional murder or felony murder] in
reaching a verdict.).
Dowdell also argues that final instructions 24 and 52 were fundamentally erroneous.
Instruction 24 informed the jury that the defendants failure to testify should not
be commented upon, referred to, or in any manner considered in determining the
guilt or innocence of the defendant, and instruction 52 informed the jury that
in order to return a verdict of guilt or innocence you must all
agree. These instructions are near verbatim recitations of two pattern instructions.
See 1 Indiana Pattern Jury Instructions (Criminal) 13.21 (Supp. 1995) & 13.23 (2d
ed. 1991). Dowdell contends that [s]tating that the possible verdicts were guilty
or innocent implied a burden [on] Dowdell to prove his innocence or be
found guilty . . . . We disagree.
As used in these instructions, the term innocence is merely another way of
saying not guilty. Moreover, these instructions dealt with Dowdells decision not to
testify and jury deliberations, subjects unrelated to the States burden of proving the
material elements of each charge beyond a reasonable doubt. The States burden
to prove all the material elements of each offense beyond a reasonable doubt
was made clear in several other instructions. The use of the word
implied no burden on Dowdell, and these instructions were not erroneous, let
alone fundamentally erroneous.
As a final point Dowdell argues that his case must be remanded for
a new sentencing because the trial court failed to mention and balance any
mitigating circumstances and improperly found aggravating circumstances. As mitigation Dowdell points to
his lack of a prior criminal history and the hardship his incarceration would
impose on his dependent. The allegation that the trial court failed to
find a mitigating circumstance requires Dowdell to establish that the mitigating evidence is
both significant and clearly supported by the record. See Carter v. State,
711 N.E.2d 835, 838 (Ind. 1999). The General Assembly has recognized the
significance of a defendants lack of criminal history by specifically listing it in
the sentencing statute. See Ind. Code § 35-38-1-7.1(c)(6) (1998). Moreover, the
State concedes that [i]t appears that the trial court ignored a mitigating factor
apparent on the face of the record: Dowdells lack of criminal history.
Dowdell was twenty-six at the time of sentencing and the presentence report
listed his prior history of criminal activity as only an arrest for misdemeanor
battery that was dismissed. Because of the trial courts failure to find
and balance this significant mitigating circumstance, we remand this case to the trial
court for resentencing on this record.
We also briefly address Dowdells other contentions of sentencing error, because they may
arise at resentencing. First, he asserts that the trial court failed to
find that long-term imprisonment would result in undue hardship to his dependent.
See Ind. Code § 35-38-1-7.1(c)(10) (1998) (Imprisonment of the person will result in
undue hardship to the person or the dependents of the person.). A
suspended sentence was not possible, as Dowdell faced a minimum sentence of forty-five
years incarceration for murder. See id. § 35-50-2-3(a) (1998). Moreover, trial
counsel did not argue this as a mitigating circumstance at sentencing nor did
Dowdell offer any evidence on the point. However, the presentence report stated
that Dowdell and Candis Johnson were the parents of one child who was
eighteen months old at the time of sentencing. It also stated that
Dowdell had not been ordered to pay support for the child. Many
persons convicted of serious crimes have one or more children and, absent special
circumstances, trial courts are not required to find that imprisonment will result in
an undue hardship. The trial court did not abuse its discretion by
failing to find this as a mitigating circumstance. Cf. Battles v. State,
688 N.E.2d 1230, 1237 (Ind. 1997) ([T]he difference between the presumptive and enhanced
sentence here hardly can be argued to impose much, if any, additional hardship
on the child, and we decline to attach any significant weight to this
proffered mitigating circumstance.).
As a final point, Dowdell suggests that the trial court improperly found aggravating
circumstances. We do not agree. The trial court was entitled to
find the nature and circumstances of the offense as an aggravating circumstance, see,
e.g., Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999), and was also
entitled to find that the nature of the crime is such that less
than an enhanced sentence would depreciate the seriousness of the offense, see, e.g.,
Huffman v. State, 717 N.E.2d 571, 577 (Ind. 1999).
This case is remanded to the postconviction court for findings as to the
prejudice prong of Dowdells ineffective assistance of counsel claim. In the event
the postconviction court makes a finding of no prejudice, Dowdell is then entitled
to resentencing on this record.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
Dowdells neighbor, Steven Pinner, also testified that he saw Dowdell that evening
and heard Dowdell and his girlfriend arguing later in the evening. However,
Pinner stated that he did not come forward until after Dowdell was convicted.
Dowdell points to nothing that suggests Cable would have had any reason
to identify Pinner as a potential witness. Accordingly, he has not met
his burden of establishing deficient performance as to Pinners testimony.
We also addressed a somewhat similar claim in Fleenor v. State,
622 N.E.2d 140 (Ind. 1993), in which the defendant was charged with two
counts of murder but a preliminary instruction included the felony murder provision.
Because the final instruction did not include the felony murder language and explicitly
defined the elements of the offense that were required to be proven as
only those for non-felony murder, no error in the jurys determination of guilt
could have resulted. Id. at 148. Although both the preliminary and
final instructions here included the knowing and intentional murder language, both also listed
only the elements of felony murder and instructed the jury that it could
convict only if the State proved each of these elements beyond a reasonable
Dowdell does not contend that the trial court erred in giving
the pattern instruction on the presumption of innocence, which also uses the word
We also reject Dowdells suggestion that trial counsel was ineffective for
failing to object or tender alternatives to these four instructions. The latter
two instructions were not erroneous and counsel cannot be declared ineffective for failing
to make an objection that would have been overruled. See, e.g., Harrison
v. State, 707 N.E.2d 767, 778 (Ind. 1999). Moreover, Dowdell has failed
to make any real showing of prejudice from trial counsels failure to object
to the trial courts inclusion of unnecessary language in the felony murder instructions
(Instructions 8 and 36). As explained above in text, the instruction listed
the elements of felony murder and told the jury that it should find
the defendant not guilty if those elements were not proven beyond a reasonable