ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
TRACY A. NELSON EILEEN EUZEN
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
MICHAEL L. OWENS, )
vs. ) No. 49A02-0011-PC-722
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Alex R. Murphy, Master Commissioner
Cause No. 49G02-9102-CF-22631
June 14, 2001
OPINION - FOR PUBLICATION
Michael Owens was convicted of burglary,
a Class B felony, two counts of
as Class C felonies, and two counts of criminal confinement,
D felonies. He appealed and this court affirmed his convictions in Owens
v. State, No. 49A02-9201-CR-8, 604 N.E.2d 1265 (Ind. Ct. App. Dec. 2, 1992).
Thereafter, he filed a petition for post-conviction relief. He now appeals
the post-conviction courts denial of his petition and raises three issues for our
review, which we consolidate and restate as follows:
I. Whether the trial court committed fundamental error when it questioned witnesses and ordered
further investigation after both the State and Defense had rested.
II. Whether Owens received ineffective assistance of trial and appellate counsel.
We reverse and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
On the night of January 18, 1991, an intruder robbed Leo and Frances
Ebbing in their home, stealing a VCR, jewelry, cash, and various securities.
Owens was arrested for the crimes and a bifurcated bench trial was conducted.
The State presented three witnesses and then rested on September 5, 1991.
Owens and his sister Victoria were witnesses for the Defense. Owens testified
that his friend Tyrell Briggs had committed the crimes. During his testimony,
Owens said that Briggs came to his house early in the evening of
January 18 asking for a ride to his sisters apartment. Although Owens
was unable to provide the ride, he agreed to lend Briggs a coat
for the cold twelve-block walk.
T.R. at 129-30.
Owens and Victoria both testified that they were talking to each other on
the telephone when the crimes were being committed.
Id. at 132, 168-70.
Owens further testified that, during their conversation, he received a call on
the other line from Briggs. Briggs told Owens that he had made
a sting and needed a ride. Id. at 132-33. In trying
to arrange a second ride for Briggs, Owens discovered that his address book
was in the coat he had lent Briggs. Owens asked Briggs to
find the address book, but Briggs stated that he had stashed the coat
at his apartment complex and refused to get it.
Id. at 134.
Owens testified that he arranged a ride for Briggs with Freddie Willis, but
became worried that his address book in the stashed coat would implicate him.
Owens then went to the apartment complex to retrieve his coat.
After finding the coat, and while on his way to Briggss apartment, Owens
noticed a security guard. Not wanting Willis to become involved, Owens stopped
at Ethyl Wellss
See footnote apartment, asked to use the phone, and called to warn
Freddie Willis to stay away.
Id. at 138-40. When he left,
Owens left his coat in Wellss apartment.
The trial court asked Owenss attorney if she had obtained the telephone records
to verify the various telephone calls. Id. at 170. When trial
counsel said she had not, the trial court said it would give her
an opportunity to get the records and supplement the evidence. Id. at
Owens testified that when he was arrested, he told Detective Breen that Briggs
had committed the crimes and gave Breen his name and everything.
at 143. When Breen did not contact Owens, his sister Victoria left
four or five messages with Breen requesting that Breen talk with Owens.
Id. Breen never contacted Owens about the lead.
After both the State and Defense had rested, the trial court recalled the
investigating officer, Officer Frances Ingram, to the stand and questioned him. During
the questioning it was revealed that no one had ever investigated whether Briggs
lived where Owens had indicated. The judge then stated, I feel that
the evidence is incomplete at this particular point. I would like to
know because the Defendant has given very specific directions here as to this
person . . . did anybody run a prior rap sheet on a
Id. at 180. The prosecutor responded that Breen, who
was absent from the trial because of medical leave, had run a rap
sheet on Briggs and had found nothing. Id. The trial court
then ordered the parties to investigate whether, on the night of the robbery,
Briggs lived in the same apartment complex as Wells. The judge further
ordered the Defense to obtain telephone records. Id. at 181.
During the States case-in-chief, Ingram testified that he used a redial feature on
Wellss phone to call the person to whom Owens spoke on the night
of the robbery.
Id. at 105. Ingram testified that, using the
redial feature; he reached a man named Earl Willis, Freddies father. After
both parties rested, the trial court followed up on this information by questioning
Ingram. Ingram testified as to his conversation with Earl as follows:
He stated that he had received a call from an individual he identified
to me as Kelly Owens and that he was very nervous and that
he needed a ride but that he could not provide one. Id.
After these follow-up questions, the trial court stated that it would take the
matter under advisement to allow the parties to do more investigation.
at 182-83. The trial judge said that Owens had told a pretty
interesting story. Now if this was the Olympics we would have to
give it about a nine and a half. Id. at 183-84.
At the trial courts request, the parties returned on September 19, 1991two weeks
after having rested their caseswith the additional information requested. Upon hearing the
additional evidence, the trial court convicted Owens of burglary, two counts of robbery,
and two counts of criminal confinement, and sentenced him to fifteen years imprisonment.
His conviction was affirmed on direct appeal after new appellate counsel raised
a sufficiency challenge. Owens then filed for post-conviction relief, and, after a
delay of over three years, post-conviction relief was denied.
See footnote Owens now appeals.
DISCUSSION AND DECISION
Owens appeals from a negative judgment by the trial court on his motion
for post-conviction relief. A post-conviction petition under Ind. Post-Conviction Rule 1 is
a quasi-civil remedy and, as such, the petitioner bears the burden of proving
by a preponderance of the evidence that he is entitled to relief.
Ind. Post-Conviction Rule 1(5); Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001);
Prowell v. State, 741 N.E.2d 704, 708 (Ind. 2001). Owens must now convince
this court that the evidence as a whole leads unerringly and unmistakably to
a decision opposite that reached by the post-conviction court. Lambert, 743 N.E.2d
at 726; Prowell, 741 N.E.2d at 708; State v. Eubanks, 729 N.E.2d 201,
205 (Ind. Ct. App. 2000), trans. denied.
The purpose of a petition for post-conviction relief is to provide a means
for raising issues unknown or unavailable to a defendant at the time of
the original trial and appeal.
Eubanks, 729 N.E.2d at 204. Post-conviction
procedures do not afford the petitioner with a super appeal. Lambert, 743
N.E.2d at 726; Eubanks, 729 N.E.2d at 204. When the petitioner has
been afforded the benefit of a direct appeal, post-conviction relief contemplates a rather
small window for further review. Eubanks, 729 N.E.2d at 204. Thus,
in general, if an issue was available on direct appeal but not litigated,
it is deemed waived. Rouster v. State, 705 N.E.2d 999, 1003 (Ind.
As to Owenss first issue, the trial court questioned witnesses and requested that
the parties undertake additional discovery after the State and Defense had presented all
their evidence. Trial counsel did not object to the courts actions and
appellate counsel did not raise the error on direct appeal. Thus, the
issue would ordinarily be waived. However, in order to avoid waiver, Owens
alleges that he should be granted post-conviction relief because the trial courts actions
constituted fundamental error.
See Bigler v. State, 732 N.E.2d 191, 194 (Ind.
Ct. App. 2000), trans. denied (exceptions to waiver will be made when the
claimed error is fundamental).
Fundamental error is a substantial blatant violation of basic principles rendering the trial
unfair and depriving the defendant of fundamental due process.
Taylor v. State,
717 N.E.2d 90, 93 (Ind. 1999); Ellison v. State, 717 N.E.2d 211, 213
(Ind. Ct. App. 1999), trans. denied; see also Conner v. State, 711 N.E.2d
1238, 1246 (Ind. 1999), cert. denied, 121 S. Ct. 81, 148 L. Ed.
2d 43 (2000) (error must be so prejudicial to the rights of the
defendant as to make a fair trial impossible). Our supreme court has
noted that the doctrine of fundamental error is only available in very narrow
circumstances. Taylor v. State, 717 N.E.2d at 94; Poling v. State, 740
N.E.2d 872, 880 n.5 (Ind. Ct. App. 2000). Even the denial of
specific constitutional rights does not always prevent waiver. Poling, 740 N.E.2d at
In post-conviction review, fundamental error only prevents waiver of Sixth Amendment claims of
ineffective assistance of counsel or of issues clearly unavailable at trial or on
Taylor, 717 N.E.2d at 94; Poling, 741 N.E.2d at 880
n.5. Because the alleged fundamental error of the trial courts actions was
available to Owens on direct appeal, we address them only as they arise
through his Sixth Amendment claims of ineffective assistance of trial and appellate counsel.
Owens next alleges that his trial counsel and appellate counsel were ineffective for
failing to object to these fundamental errors at trial and raise them in
Owenss direct appeal.
We agree. The Sixth Amendment to the Constitution
of the Unites States guarantees the right of a defendant in a criminal
case to the effective assistance of counsel. Latta v. State, 743 N.E.2d
1121, 1125 (Ind. 2001) (citing Strickland v. Washington, 466 U.S. 668, 686, 104
S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).
When reviewing a claim of ineffective assistance of counsel, we initially presume that
counsels representation was within the wide range of reasonable professional assistance.
v. State, 637 N.E.2d 1369, 1378 (Ind. Ct. App. 1994), trans. denied (citing
Geans v. State, 623 N.E.2d 435, 438 (Ind. Ct. App. 1993)). The
test to be applied when ineffective assistance of counsel is alleged is two-pronged.
Davenport v. State, 689 N.E.2d 1226, 1231 (Ind. 1997), modified on rehg
on other grounds, 696 N.E.2d 870 (Ind. 1998). First, the defendant must
prove that counsels representation fell below an objective standard of reasonableness under prevailing
professional norms, and, second, there is a reasonable probability that, but for counsels
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine the confidence in the outcome.
Lambert, 743 N.E.2d at 730 (citing Strickland, 466 U.S. at 687, 104
S. Ct. at 2064, 80 L. Ed. 2d at 693).
The United States Supreme Court has determined that the Constitution mandates an adversarial
form of procedure in criminal cases.
Stephan Landsman, Readings on Adversarial Justice:
The American Approach to Adjudication 1 (1988). The adversary process assigns
each participant a single function. The judge is to serve as neutral
and passive arbiter. Counsel are to act as zealous advocates. Id.
at 35. If this division is not adhered to, the danger is
that the judge will abandon his neutrality if encouraged to search for material
truth and that the attorney will compromise his clients interests if forced to
serve as an officer of the court rather than an advocate. Id.
In either case, the probity of the process is seriously undermined.
Our supreme court has noted that a judge may intervene to promote clarity
or to aid in the advancement of the proceedings.
McCord v. State,
622 N.E.2d 504, 511 (Ind. 1993); Garcia v. State, 517 N.E.2d 402, 405
(Ind. 1988) (trial court properly intervened to halt repetitive questions). Nevertheless, in
high volume criminal courts where the danger is ever present that the roles
of the court and counsel will be melded, it is essential to the
fair administration of justice that those roles be restrained to their proper spheres.
Brooks v. State, 526 N.E.2d 1171, 1172 (Ind. 1988); see also Isaac
v. State, 605 N.E.2d 144, 148 (Ind. 1992) (a trial judge may not
assume an adversarial role); Beatty v. State, 567 N.E.2d 1134, 1136 (Ind. 1991)
(a trial judge must maintain an impartial manner and refrain from acting as
an advocate for either party); Whitehead v. State, 511 N.E.2d 284, 291 (Ind.
1987), cert. denied, 484 U.S. 1031, 108 S. Ct. 761, 98 L. Ed.
2d 773 (1988) (judge has a duty to remain impartial and improperly interjected
himself into voir dire by assuming the role of an advocate); but see
In re Commitment of Roberts, 723 N.E.2d 474, 476 (Ind. Ct. App. 2000)
(court noted in civil commitment case that most restrictions on the courts power
to examine witnesses are relaxed in trials to the court). A fair
trial by an impartial judge and jury is an essential element in due
process. Decker v. State, 515 N.E.2d 1129, 1131 (Ind. Ct. App. 1987)
(quoting Kennedy v. State, 258 Ind. 211, 218, 280 N.E.2d 611, 615 (1972));
see In re Commitment of Roberts, 723 N.E.2d at 476 (a violation of
due process occurs where a trial judge combines the roles of judge and
Here, it is clear that the trial judge acted as an advocate and
intervened in the proceedings. After the parties had rested, he asked questions
and ordered additional investigation. Through this questioning he allowed inadmissible hearsay to
be introduced by Ingram and the prosecutora person who was not and could
not be a witness against Owens. Furthermore, the evidence that was introduced impeached
Owenss testimony because the telephone records were void of any calls being made
between Owens and Victoria on the night of the robbery, and the apartment
records did not contain evidence that Briggs had lived at the complex in
The judges actions appear plainly in the trial record. Because the adversarial
system is built on the premise that the judge serves as a neutral
and passive arbiter, trial counsels failure to object to the judges actions caused
her representation to fall below an objective standard of reasonableness under prevailing professional
norms. Furthermore, appellate counsels failure to raise these issues on direct appeal
caused her representation to fall below an objective standard of reasonableness.
We also find that the errors by trial and appellate counsel were so
serious that there is a reasonable probability that, but for counsels unprofessional errors,
the result of the proceeding would have been different. The presumption at
trial is that the defendant is innocent. That presumption is maintained unless
the State proves that the defendant is guilty beyond a reasonable doubt of
every essential element of the crimes charged. Edgecomb v. State, 673 N.E.2d
1185, 1197 (Ind. 1996). At the time the parties rested, the trial
judge was still not convinced beyond a reasonable doubt that Owens had committed
the crimes. The judge stated, the evidence is incomplete at this particular
point and indicated that he wanted to know more because Owens had given
very specific testimony as to Briggs. T.R. at 180. He also
said that Owens had told a pretty interesting story and that if this
was the Olympics, he would have given him a score of nine and
a half. Id. at 183-84. By requiring the parties to engage
in additional discovery and return two weeks later to report their findings, the
trial judge overstepped his bounds as a neutral arbiter. Failure to object
at trial made trial counsels actions ineffective while failure to raise these issues
on direct appeal made appellate counsels actions ineffective.
We reverse the denial of post-conviction relief and remand for a new trial.
SHARPNACK, C.J., and MATTINGLY-MAY, J., concur.
See IC 35-43-2-1.
See IC 35-42-5-1.
See IC 35-42-3-3.
Owens became a suspect under the following circumstances. Late in
the night of January 18, 1991, Ethyl Wells, a neighbor living a block
away from the Ebbings, allowed a man to make a telephone call from
her apartment. The man left his coat in her apartment when he
departed. Wells then went outside and told the security guard at her
apartment complex about the man and was informed that a burglary had just
occurred in the neighborhood. Wells immediately called the police who came, investigated, and
searched the coat. In the pockets of the coat, the police found
the Ebbings jewelry and Owenss personal address book.
Footnote: The record of proceedings in the trial court will be identified
in this opinion as T.R. and the record of proceedings in the post-conviction
court as Record.
Footnote: Briggs allegedly lived in the same apartment complex as Wells.
Footnote: Ms. Wellss first name is spelled Ethel in the Affidavit for
Trial Record at 18. We have used Ethyl because
that is the spelling in the trial transcript and the Memorandum Decision.
Id. at 87; Appellees Brief at 2.
Owens filed a pro-se petition for post-conviction relief on October 20,
1993 and an amended petition on January 9, 1997.
Record at 27,
38. An evidentiary hearing was held on February 25, 1997. Id.
at 80-91. The post-conviction court issued its order on September 5, 2000,
id. at 67-69, but only after Owens requested a ruling in his July
28, 2000 Verified Motion for Ruling. Id. at 76.
The State asserts that because Owenss conviction and direct appeal occurred
before the supreme court decided
Woods v. State, 701 N.E.2d 1208 (Ind. 1998),
Owens is unable to proceed with a claim of ineffective assistance of trial
counsel. Before Woods, a claim of ineffective assistance of trial counsel was
waived if not raised on direct appeal. Woods held that a Sixth
Amendment claim of ineffective assistance of trial counsel may be presented for the
first time in a petition for post-conviction relief. Although the State cites
to McIntire v. State, 717 N.E.2d 96, 102 (Ind. Ct. App. 1999) to
support the proposition that Woods is to be applied prospectively, we note that
since McIntire was decided, our supreme court has applied Woods retroactively on at
least two occasions. Prowell, 741 N.E.2d at 708; Coleman v. State, 741
N.E.2d 697, 700 (Ind. 2000). We, therefore, allow Owens to raise his
ineffective assistance of trial counsel claim for the first time in post-conviction review.