ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SARAH L. NAGY STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
ANDREW L. HEDGES
Deputy Attorney General
COURT OF APPEALS OF INDIANA
ROBERT EARL BADELLE, )
vs. ) No. 49A02-0003-PC-193
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Ted Robinette, Judge Pro Tempore
Cause No. CR78-176B
July 17, 2001
OPINION FOR PUBLICATION
On June 25, 1979, a jury found Appellant-Petitioner Robert Earl Badelle (Badelle) guilty
of murder. The trial court sentenced Badelle to sixty years imprisonment.
Badelles conviction and sentence were affirmed on direct appeal. See Badelle v.
State, 449 N.E.2d 1055 (Ind. 1983). Badelle now appeals the post-conviction courts
(PCR Court) denial of his post-conviction petition challenging his murder conviction. We
Badelle raises eight issues on appeal, which we consolidate and restate as follows:
Whether the PCR Court properly excluded the hearsay testimony of Victoria Christ (Christ)
and Katherine Shepard (Shepard); and, prior hearsay statements given by James Highbaugh (Detective
Whether the State violated Brady v. Maryland;
Whether the PCR Court properly quashed Badelles subpoena to Stephen Goldsmith (Goldsmith);
Whether Badelle received ineffective assistance of trial counsel and/or appellate counsel; and,
Whether there was sufficient evidence to support Badelles conviction. Facts and Procedural History
The facts, as set forth by our supreme court in Badelles direct appeal,
are as follows:
The facts adduced at trial show that on December 5, 1977, Robert Kannapel,
Sr., and his son, Robert, Jr., were working together in a gasoline service
station located at 16th and Meridian Streets in Indianapolis. At approximately 3:00
p.m., a man subsequently identified as Appellant Badelle walked into the station to
get out of the drifting snowfall and presumably to wait on a ride.
Despite the station's policy to the contrary, the Kannapels allowed Badelle to
remain inside the front office area. During the next three hours, Mr.
Kannapel, Sr., repaired automobiles in the station's service bay area while his son
was in and out of the front office attending to the outside gasoline
pumps. Several people passed through the station during this period and noticed
Badelle loitering. At approximately 5 p.m., neighbor Joe Harris stopped at the
station to visit. At approximately 6:00 p.m., Mr. Kannapel, Jr., left the
station to make the station's daily bank deposit before going home. After
his departure, Badelle asked Harris to call a cab for him. Harris
looked up the number and gave it to Mr. Kannapel, Sr., who proceeded
to place the call. Badelle thereupon went into the back office area
where Mr. Kannapel, Sr. was. A scuffle ensued. Still in the
front office area, Harris heard a gunshot and Kannapel's request for an ambulance.
When Harris started into the station's rear area, Badelle confronted him and
said that he would be shot if he continued any further. At
that time, Harris observed Badelle holding a long-barrelled [sic], silver-colored pistol. Harris
left the station and called the police. Vincent Carrol drove up to
the station's gasoline pumps just as Harris was leaving and watched another man
he described as looking like Badelle leave the station carrying a long-barrelled, silver-colored
pistol in his hand. Mr. Kannapel subsequently died from his gunshot wound.
Badelle v. State, 449 N.E.2d 1055, 1056 (Ind. 1983). FINDINGS OF FACT
Additional facts found by the PCR Court read as follows:
The petitioner was found guilty of Murder by a jury on June 25,
1979 and was sentenced to 60 years [sic] imprisonment. He appealed.
On June 13, 1983 the Supreme Court of Indiana unanimously affirmed the petitioners
conviction and sentence herein . . . .
On June 15, 1987 the petitioner filed a petition for post-conviction relief, which
was answered by the State of Indiana on June 24, 1987. Subsequent
petitions or amendments were filed by the petitioner on June 29, 1987; August
29, 1989; October 29, 1996 and May 27, 1999. It was the
last of these proceedings that set-out the allegations of error presently before the
An evidentiary hearing was held in the matter. Said hearing occupied all
or part of the following days: September 20, 1999; October 18, 1999;
December 2, 1999; and December 3, 1999. During these proceedings the Court
heard testimony from 44 witnesses, some of whom testified more than once.
Many items of documentary evidence were admitted. From the witnesses testimony and
other evidence presented, the Court Finds:
The petitioner was tried twice in this cause. The first trial resulted
in [a] guilty verdict, but the matter was set-aside by the trial judge,
and a new trial was ordered. The setting-aside of the first verdict
was due to an alleged Discovery violation by the State, not as a
result of an overriding of the jurys determination of guilt. The two
trials were presided over by different judges.
Mr. Badelles first trial was by jury, with the trial beginning on January
22, 1979, and ending on January 23, 1979. The jury found Petitioner
guilty as charged.
The Honorable Webster Brewer presided over Petitioners first trial in January, 1979.
On that same date evidence was heard, in part, on Petitioners motion for
new trial, with the hearing being continued to April 11, 1979. The
hearing was finally completed on April 25, 1979, with the Court granting Petitioners
motion for new trial because of newly discovered evidence and the cause being
set for trial on June 4, 1979.
On May 10, 1979, the honorable Webster Brewer, Judge, disqualified himself and presented
the parties a panel of three (3) judges from which to select a
special judge to preside over the new trial. A Special Venire of
125 persons was also ordered. On May 14, 1979, the Honorable John
L. Price was selected and thereafter qualified as Special Judge for the case.
The Honorable John Price presided over Petitioners second trial in June, 1979.
Attorney Charles Beck served as Mr. Badelles trial attorney in both trials and
was deceased at the time of Mr. Badelles post-conviction hearing. Mr. Beck
died in 1987.
The petitioner was represented on appeal by attorney Patrick E. Chavis III.
On March 8, 1984, Mr. Badelles file was opened by State PD attorney
Shiela Zwickey, who assured him in a letter dated July 5, 1984 that
she was still his attorney.
In 1985, Mr. Badelles Post-Conviction Relief case was transferred to another State PD
attorney, Joann Farnsworth, who communicated with Mr. Badelle her intent to proceed with
Petitioner filed his pro se Petition for Post Conviction Relief on June 10,
The State filed its answer to Petitioners pro se Petition for Post Conviction
Relief on June 24, 1987.
Mr. Badelle filed pro se an Amended Petition for Post Conviction relief on
or about August 1, 1989.
In early 1996, Mr. Badelle chose to retain private counsel in his post-conviction
At all times prior to retaining private counsel in 1996, Mr. Badelle relied
on the Office of the State Public Defender for representation in this matter.
Mr. Badelle, by counsel, Vincent L. Scott, filed a second Amended Petition for
Post Conviction Relief on October 29, 1996.
On or about May 27, 1999, Mr. Badelle, by counsel Yvonne Watkins, filed
a third amended petition for post-conviction relief.
In July, 1999, counsel Sarah L. Nagy entered her pro bono appearance on
behalf of Mr. Badelle.
Appe[l]late counsel for petitioner[s] [direct] appeal [Chavis] tendered [his] brief in October 1981,
and when testifying on December 2, 1999, due to the passage of time
could not recall a lot about the facts of the case, even after
reviewing his brief.
Det. Dennis Morgan was assigned to investigate the murder of Robert Kannapel, Sr.,
and this assignment was his first assignment as a lead homicide investigator.
According to Deputy Chief Tim Foley, Det. Morgans Captain in the homicide division
from November 1978 until Det. Morgan was removed from the homicide division, Det.
Morgan lacked the proper investigative skills to properly investigate a homicide.
Dennis Morgan died in 1995 when he was run over by a car
in the street near the Indianapolis Motor Speedway.
Det. James Highbaugh testified in the first trial of Robert Badelle for the
Det. Highbaugh initiated the civil rights complaint with the FBI in August, 1979.
Det. Highbaugh died in 1982.
The IPD Crime Lab had a policy of destroying all physical evidence and
case jacket files on any case 10 years old.
On March 25, 1978, a hair sample was taken from Mr. Badelles head
by Detective Dennis Morgan.
No hair sample was entered into the property room log book in this
Det. Morgan testified that no hair tests were run because the hat was
placed on Mr. Badelles head for a line-up on March 30th.
The FBI conducted an extensive civil rights violation investigation and provided the U.S.
Attorney for the Southern District of Indiana with the evidence gathered. The
FBI makes and made no recommendations as to the merit of a case
. . . . A civil rights violation case was never filed by
the Office of the U.S. Attorney.
Doug Garrison provided Mr. Badelles counsel with a copy of the entire FBI
file, much of which contained inadmissible hearsay because the declarants were deceased at
the time of Mr. Badelles post-conviction relief hearing.
(PC-R 66-70.) Additional facts will be supplied as needed. Discussion and Decision
Standard of Review
This appeal presents the question of whether post-conviction relief was improperly denied by
the PCR Court. Post-conviction proceedings do not afford defendants the opportunity for
a super-appeal. Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999) cert.
denied. As such, post-conviction appeals do not substitute for direct appeals but
provide a narrow remedy for subsequent collateral challenges to convictions. Id.
Moreover, when our supreme court decides an issue on direct appeal, the doctrine
of res judicata generally applies, thereby precluding its review in post-conviction proceedings.
A post-conviction petition under Indiana Post-Conviction Rule 1 is a quasi-civil remedy, and
as such, the petitioner bears the burden to prove by a preponderance of
the evidence that he or she is entitled to relief. Dickenson v.
State, 732 N.E.2d 238, 241 (Ind. Ct. App. 2000). Upon review of
a denial of post-conviction relief, the appellate court will not set aside the
PCR Courts ruling unless the evidence is without conflict and leads solely to
a result different from that reached by the post-conviction court. Id.
In making this determination, we consider only the evidence that supports the decision
of the PCR Court, together with any reasonable inferences to be drawn therefrom.
I. Admission of Evidence - Hearsay
The Indiana Rules of Procedure for Post-Conviction Remedies provide in relevant part that
[t]he court may receive affidavits, depositions, oral testimony, or other evidence. P-C.R.
1(5). As the admission or exclusion of evidence is within the PCR
Courts sound discretion, a reviewing court defers to that court and will not
disturb its ruling on review unless it has abused its discretion. Conner,
711 N.E.2d at 1258.
A. Testimony of Deputy State Public Defender Christ and Detective Morgans Unsigned
Christ testified as follows at Badelles PCR hearing:
A: [Christ]: Detective Morgan indicated to me that he was --- that Badelle
was arrested and a different police officer released Mr. Badelles photograph to the
. . . .
Q: [PCR counsel]: Okay. But [Detective Morgan] did tell you that he
took this photo array over and showed it to Joe Harris and had
the newspaper containing Mr. Badelles picture with the same photo in front of
Joe Harris during the photo identification?
A: [Christ]: [Detective Morgan] told me that the Indianapolis Star with the photograph
listing Badelle as a suspect was at the station, and the same photo
that appeared in the paper was the one that was used in the
(PC-R at 2052-54.) Additionally, Christ presented the following unsigned statement: AFFIDAVIT
Comes Now Affiant, Dennis Morgan, being first duly sworn upon his oath, deposes
and says the following:
1. I was a homicide detective for the Indianapolis Police Department in the case
of State of Indiana v. Robert Badelle in 1977-79 under case number 459736E.
Badelle was charged in that case with murder of a Texaco gas station
operator named Robert Kannapel. The offense was committed on December 5, 1977.
The Texaco station was located at the corner of 16th and Meridian in
A man named Joseph Harris witnessed the murder. The owner of the
station and the victims son had briefly viewed the assailant as he stood
in the Texaco Station lobby.
Badelle was arrested on March 25, 1978, at 1:00 a.m. because of a
tip that he looked like the composite drawing of the assailant.
In the morning edition of the March 25, 1978, Indianapolis Star Badelles photograph
was printed and he was listed as a suspect.
In the morning hours of March 25, 1978, I conducted a photographic array
with witness Joseph Harris at the Texaco Station. Badelles photograph was included
in the array. The array photograph was the same one that had
been published in the newspaper earlier that day. A copy of the
Indianapolis Star was in the Texaco Station when Harris identified Badelle as the
Badelles first trial verdict was set aside because a man named Edwin Kennedy
had told police officers at the scene after the crime that his car
had broken down and the assailant helped to push the car to the
Texaco [S]tation. His name had not been listed within the discovery materials
given to trial counsel Charles Beck.
At the second trial, Kennedy testified that Badelle was not the man who
pushed his car to the station on the night of the crime.
Harris identified Badelle as the killer during the trial. After he testified
Harris asked me in the hallway of the City-County Building: you think
hes the one? When I told Harris that he must be sure
he said he guessed that Badelle was the man who shot Kannapel.
The jury found Badelle guilty of murder at the conclusion of the second
I had asked for assistance from Detective James Highbaugh to investigate this case
because this was one of my first cases as a homicide detective.
Highbaugh received a tip that a different man had committed the crime.
The participants each indicated to Highbaugh that this suspect looked most like the
assailant. The participants had previously identified Badelle as the assailant.
After the first trial verdict had been set aside, I was asked by
Deputy Chief of Investigations, Jack Cottey, to testify at the Board of Captains
hearing that James Highbaugh had interfered with my investigation. I testified at
the Board of Captains hearing that Highbaugh did not interfere with the case.
I was later demoted to street patrol.
I do not believe that Robert Badelle was guilty of the murder that
occurred on December 5, 1977, at the Texaco Station at 16th and Meridian
FURTHER AFFIANT SAYETH NAUGHT.
(PC-R at 2080-82.) Christ testified that Detective Morgan indicated his intent to
sign the above affidavit in a telephone call. The PCR Court excluded
Christs statements and Detective Morgans purported written statement as inadmissible hearsay. Badelle
argues that [t]hese rulings [are] incorrect because Morgans statements were admissible under two
theories: First, the statements were made against his penal interest because he
admitted to a continued pattern of justice obstruction. Second, his statements were
admissible because they were statements made against his pecuniary interest. Morgan was
an IPD employee when he made these statements in 1994 and he could
have been terminated for his admissions relating to the Badelle case. Appellants
Brief at 16. B. Testimony of Shepard
"Hearsay" is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered into evidence to prove the truth of
the matter asserted. Ind. Evidence Rule 801(c). Hearsay testimony is nevertheless
admissible under the statement against interest exception if the declarant is (1) unavailable
as a witness and (2) the statement, at the time it was made,
was "so far contrary to the declarant's pecuniary or proprietary interest, or so
far tended to subject the declarant to civil or criminal liability . .
. that a reasonable person in the declarant's position would not have made
the statement unless believing it to be true." Ind. Evidence Rule 804(b)(3).
Detective Morgan was deceased at the time of Badelles post conviction hearing, and
was therefore unavailable. Evid.R. 804(a)(4). However, Badelles loose allegations of possible
employment repercussions or civil suits directed towards Detective Morgan from his purported statements,
both as relayed by Christ and contained in her written records, fail to
convince this Court that such statements were contrary to his pecuniary or proprietary
interest or of the sort that would have subjected him to civil or
criminal liability. Separately, we note that [t]he viewing by a witness of
a newspaper article containing a photograph of the accused and identifying him as
a suspect does not constitute an impermissibly suggestive identification[,] let alone an act
that would subject a police officer to civil or criminal liability. See
Harris v. State, 619 N.E.2d 577, 581 (Ind. 1993). Additionally, Christs written
records, containing the affidavit form that was prepared by Christ but never signed
by Detective Morgan, is a document whose contents were not confirmed by oath
or affirmation by Detective Morgan. As such, the document lacked the requisite
indicia of reliability for its admission into evidence. Similarly, Christs testimony as
to the contents of this document constituted hearsay and was properly deemed inadmissible
for failing to consist of statements against interest. The PCR Court did
not abuse its discretion when it denied the admission of this evidence.
The following testimony by Shepard was stricken as hearsay:
[Shepard]: And so when the three of us [Shepard, Detective Morgan and
Officer Willy Larkin] when [sic] into a small room and we started talking
and Detective Morgan said to me, I know that Robert, your cousin did
not do the crime. He said, I know that he was innocent.
And I said, how do you know that, and he said that
when the lineup was completed whoever had picked Robert out of the lineup
came to me and said, well, do you think we have the right
one. And he said, well, I dont know, thats what youre supposed
to tell me. And he says, well, dont you think we have
the right one, and he says, thats what youre supposed to say.
And so he said, Detective Morgan at that time he went to his
superior and told him what happened. He told him that he had
--- that the guy that had picked Robert out of the lineup what
he had said to him, and he said that his superior told him
to keep his mouth shut because if he didnt do this murder he
probably did some other.
(PC-R at 2547-48.) Badelle baldly asserts that the above testimony, which was
made during an offer to prove and contains hearsay, and hearsay within hearsay,
is admissible evidence under an exception to the hearsay rule. Appellants Reply
Brief at 1-2. Badelle does not specify which exception is applicable nor
cite to any authority in support of his contention. As such, any
error regarding this issue is waived.
See App. R. 8.3(A)(7); See Bigler
v. State, 732 N.E.2d 191, 196 (Ind. Ct. App. 2000) trans. denied.
C. Detective Highbaugh Prior Statements to FBI
Badelle further sought to admit statements given by Detective Highbaugh to the FBI,
in which Detective Highbaugh asserted his belief that someone other than Badelle murdered
Kannapel and that witness testimony was tampered with. (PC-R 553
See footnote .) The
PCR Court excluded Detective Highbaughs statements on the grounds that they were hearsay.
Again, Badelle contends that the PCR Court erred because the statements are
exceptions from the hearsay rule as statements made against pecuniary interest. Appellants
Brief at 16-17;
see also Appellants Reply Brief at 10.
Detective Highbaugh died in 1982, and was therefore unavailable at the time of
the post-conviction hearing. Evid.R. 804(a)(4). Additionally, Badelle argues that Detective Highbaugh
faced suspension or termination for his statements to the FBI. Detective Highbaugh
was in fact terminated from the police force on September 14, 1979.
(PC-R 2365.) The Indianapolis Police Merit Board cited the following reasons for
Detective Highbaughs termination.
Police Officer Highbaugh is guilty of violating Sections II(E) and (H); III(A) and
(B) and IX(C) of the Rules and Regulations of the Indianapolis Police Department
and . . . is hereby discharged from the force.
(PC-R 2365.) Section II(E) and (H) read as follows:
No member shall publicly criticize the department or any of its officers if
that criticism is in any way defamatory, obscene, unlawful or tends to impair
the efficient operation of the department.
Officers who are on suspension are charged with the responsibility of conforming to
the departments rules, policies and procedures to the same extent as if he
were not on suspension.
Section III (A) and (B) provide that:
No member shall make public comment on the official action of a supervising
officer in a detrimental manner.
No member shall be insubordinate or act with disrespect to any supervising officer.
(PC-R 2362.) Finally, Section IX(C) provides:
All members shall cooperate with . . . the news media but shall
not divulge confidential or personal information nor information which might jeopardize any pending
criminal or administrative case. All further inquiries by the news media shall
be directed to the Public Information Officer.
II. Brady v. Maryland
Here, while suspended from the police force
See footnote , and prior to Badelles second trial,
Detective Highbaugh stated to a reporter for the Indianapolis Star that he stood
by his earlier contention that Robert Badelle was innocent and a subject known
as Pee Wee was the murderer of Robert Knapple [sic] and further that
Police Chief Eugene Gallagher and Deputy Police Chief Jack L. Cottey [were] racist,
gutless men; and that . . . his suspension was the result of
pressure from Deputy Police Chief Cottey due to personal conflicts. (PC-R 2365.)
After reviewing the record it appears that Detective Highbaughs discharge was the
result of a history of offenses and for his violation of the above-cited
sections of the Rules and Regulations of the Indianapolis Police Department, not for
his belief that Badelle was innocent. Moreover, Badelle fails to present independent
evidence that Detective Highbaughs statements to the FBI violated any IPD policy such
that standing alone they could have resulted in his suspension or termination.
Accordingly, we do not find these statements to have been made against Highbaughs
pecuniary interests. Again, the PCR Court did not abuse its discretion.
The state has an affirmative duty to disclose evidence favorable to a criminal
defendant. See Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555,
131 L.Ed.2d 490 (1995) (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963)). In Brady v. Maryland, the United States
Supreme Court held: "[T]he suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution." 373 U.S. at 87. To prevail on a
claim that the prosecution failed to disclose exculpatory evidence, a defendant must establish:
(1) that the prosecution suppressed evidence; (2) that the evidence was favorable
to the defense; and (3) that the evidence was material to an issue
at trial. See Farris v. State, 732 N.E.2d 230, 232-33 (Ind. Ct.
App. 2000) (citing Conner v. State, 711 N.E.2d at 1245-46). Evidence is
material only "'if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.'"
Kyles v. Whitley, 514 U.S. at 433-34 (quoting United States v. Bagley,
473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985)
(opinion of Blackmun, J.)); id. at 685, 105 S.Ct. at 3385, 87 L.Ed.2d
at 496 (White, J., concurring in part and concurring in judgment)). A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Farris, 732 N.E.2d at 233.
Badelle alleges multiple instances in which the State suppressed material exculpatory evidence.
We address each allegation in turn.
A. Tobin Rice
Rice was a juvenile probation officer at the time of the Kannapel murder.
Reginald White (White) was a probationer whom Rice supervised. Rice testified
as follows at the post conviction hearing:
Q: [Post-conviction counsel] Okay. And did you tell anybody from the Indianapolis
Police Department about your belief that Reginald White committed the murder?
A: [Rice] Yes.
Q: Who would that be?
A: I called a Detective Highbaugh on the telephone.
Q: Okay. And so what did you tell him?
A: Well, I asked him if he was investigating the crime and he said
he was. And, I told him that I had a probationer on
my caseload at that time that I suspected may have committed the act.
. . . .
Q: So you told Detective Highbaugh that Pee Wee is the guy who you
believe committed the crime?
A: Well, my recollection of the conversation at that time was the [sic] detective
Highbaugh was investigating the incident, that his sources had lead him to think
that someone by the name of Pee Wee had committed the crime, but
I dont think at that time he knew Pee Wees real name.
Q: Okay. And so were you the one that put Pee Wee together
with Reginald White for James Highbaugh?
(PC-R 2103.) Badelle argues that the existence of Rice and the information
he possessed were suppressed by the State, and that had the State informed
Defense Attorney Beck (Trial Counsel) of his existence, Rice would have given material
and exculpatory testimony at trial.
Here, Detective Highbaugh was called as a defense witness. Therefore, with reasonable
inquiry, Trial Counsel could have ascertained Rices name and information from Detective Highbaugh.
Evidence cannot be regarded as suppressed by the government when the defendant has
access to the evidence before trial by the exercise of reasonable diligence.
United States v. White, 970 F.2d 328, 337 (7th Cir. 1992). Thus,
the State will not be found to have suppressed material information where that
information was available to the defendant through the exercise of reasonable diligence.
See Parks, 100 F.3d at 1307 (citing United States v. Morris, 80 F.3d
1151, 1169 (7th Cir. 1996), rehg denied, cert. denied, -- U.S. --, 117
S.Ct. 181, 136 L.Ed.2d 120). As we find the Seventh Circuits analysis
of Brady, its elements, and the suppression requirement persuasive, we adopt and use
State v. Nikolaenko, 687 N.E.2d 581, 583 (Ind. Ct. App. 1997). Rices
testimony that he contacted Detective Highbaugh prior to Badelles trial and Trial Counsels
use of Detective Highbaugh as a defense witness convince this Court that reasonable
diligence would have produced Rices information. See id. Moreover, we cannot
say that this evidence, if admissible, was material to Badelles defense. Accordingly,
we must affirm the PCR Courts conclusion that the State did not withhold
exculpatory information or evidence as regards information or opinions possessed by Tobin Rice.
(PC-R 73.)B. Reginald White
Next, Badelle contends that the State intentionally withheld information regarding White. Specifically,
Badelle argues that the State failed to inform Badelle that White was in
the service station on December 5, 1977, despite Trial Counsels supplemental discovery motion
which sought information pertaining to several potential witnesses and/or suspects, including Reginald White.
At the PCR hearing White testified in part as follows:
Q: [Post-conviction counsel]: [W]ere you in the [service] station on December 5
A: [White]: Sure I went in there everyday.
Q: Um, did you tell the police that you had been in the station
on that day, on December 5th, 1977?
A: They never asked me.
Q: I know, but did you tell them that?
A: I tried to, they told me not to say nothing.
Q: But did you say it to them?
Q: So they knew, the police knew that you were in the station on
December 5th, 77?
. . . .
A: I was there every day [sic], because I went to work every morning.
(PC-R 2792-93.) Additionally, White testified that before entering the service station he
helped push a stalled car onto the lot.
See footnote (PC-R 2807.) Testimony
at trial indicated that the black male in the service station lobby was
the same individual that helped Kannapel Sr. and Kannapel Jr. push Edwin Kennedys
station wagon off of the service station parking lot. Badelle argues that
this information was suppressed by the State at the time of Badelles second
Initially, we consider whether Badelle properly raised this issue before the PCR Court.
Failure to raise an alleged error in the petition for post-conviction relief
waives the right to raise that issue on appeal. Ind.Post-Conviction Rule 1,
Perry v. State, 622 N.E.2d 975, 978 (Ind. Ct. App. 1993).
Badelle contends that he presented the above-claimed error to the PCR Court by
way of the following paragraph contained in his petition for post conviction relief:
The Petitioner was denied due process of law, a fundamentally fair trial and
appeal, in violation of the Fifth, Sixth and Fourteenth Amendments to the United
States Constitution and Article One, Sections Twelve, Thirteen and Nineteen of the Indiana
Constitution, as a result of the States withholding of certain exculpatory evidence in
its possession, which evidence would have resulted in a different verdict if presented
to the jury.
(PC-R 30.) Yet, in the factual paragraph that follows, Badelle focuses exclusively
on that information known to probation officer Rice, and the States failure to
identify Rice throughout discovery.C. Serology Tests
A post-conviction petition shall be made under oath and the petitioner shall verify
the correctness of the petition, the authenticity of all documents and exhibits attached
to the petition, and the fact that he has included every ground for
relief under Sec. 1 known to the petitioner. Ind.Post-Conviction Rule 1, §
3. (Emphasis added.) At no point within his petition did Badelle
identify what exculpatory evidence was allegedly suppressed by the State regarding White.
However, it was clear at the post-conviction hearing that Badelle was eliciting testimony
from White and others in an effort to establish that the State had
suppressed information pertaining to White, who was a suspect for the murder of
Kannapel Sr. Moreover, the State did not object to this testimony as
being outside the parameters of Badelles petition, nor object to Badelles motion that
the pleadings be found to conform to the evidence, a motion which was
granted by the PCR Court. Thus, alleged waiver notwithstanding, and in the
interest of judicial economy, we proceed to address the first part of Badelles
Brady-claim; namely, whether the State suppressed information regarding White.
Badelle was aware of White prior to Badelles second trial. Detective Highbaugh,
a defense witness, testified about his investigation of White. Additionally, Prosecutor Whitney
testified at the post-conviction hearing that police had located White prior to Badelles
second trial and that Trial Counsel would have known of this contact twenty-four
to forty-eight hours after [Prosecutor Whitney] received it. (R. 1493.) Furthermore,
White was called into the courtroom at Badelles second trial during a portion
of Prosecutor Whitneys cross-examination of Detective Highbaugh and asked to stand in front
of the jury as well as alongside of Badelle. In light of
Detective Highbaughs investigation and Whites availability, Badelle has failed to prove by a
preponderance of the evidence that Whites presence at the service station on the
day of the murder was information suppressed by the State. This information
was available to the defense through reasonable diligence.
Badelle counters the States contention that he waived the issue of suppression of
blood tests by quoting the following legal grounds asserted in his petition:
The Petitioner was denied due process of law, a fundamentally fair trial and
appeal, in violation of the Fifth, Sixth and Fourteenth Amendments to the United
States Constitution and Article One, Sections Twelve, Thirteen and Nineteen of the Indiana
Constitution, as a result of the State withholding and subsequently destroying material physical
evidence in this case.
(PC-R 31.) Again, however Badelle supports this position with facts unrelated to
serology tests. Instead, Badelle focuses on the fact that no report regarding
a hair analysis was provided to Badelle. As such, Badelle has not
properly preserved this issue for appeal. Regardless of possible waiver, testimony at
the post-conviction hearing failed to reveal any of the results from the blood
tests performed, and all such reports have since been destroyed. Thus, while
it appears blood tests were conducted, no blood results exist to indicate whether
this evidence was favorable to Badelles defense. Again, we need not disturb
the PCR Courts decision.D. Hair Tests
A hat was left at the scene of the murder. On March
25, 1978, a hair sample was taken from the head of Badelle.
At the post-conviction hearing Prosecutor Whitney testified that there were hair examples, exemplars
taken that were compared with Mr. Badelles hair, I do remember that.
(PC-R 1415.) However, at Badelles trial Prosecutor Whitney and Detective Morgan gave
the following exchange:
Q: [Prosecutor Whitney] . . . The hair in the hat, were there
any tests done, or taken, [on] any hair particles?
A: [Detective Morgan] No.
A: Because Mr. Badelle tried the hat on at a lineup and there was
no reason to run a test on it, because he tried the hat
on five days after the 25th, which was the 30th.
(T.R. 991-92.) Amidst this contradictory testimony, and the omission of a hair
sample entry in the property room log book, one fact remains clear; prior
to his first trial Badelle informed Trial Counsel that a sample of his
hair was taken by police on March 25, 1978. Any test results
were thereby available through reasonable diligence. As such, the evidence does not
indicate that the State suppressed these test results. There is no Brady
violation here.E. Footprints
On appeal from the PCR Courts decision, Badelle argues that [t]he State possessed
knowledge that there was a discrepancy as to which way the perpetrator ran,
and in which direction the footprints of the perpetrator led. Appellants Brief
at 28. Alleged waiver notwithstanding, our review of the record reveals that
a preponderance of the evidence does not indicate that the State suppressed information
regarding footprints. See Dickenson, 732 N.E.2d at 241.
F. Detective Richard Combss Investigation
Another argument absent from Badelles post-conviction petition, but asserted at the hearing, was
that the State withheld information regarding Detective Combss investigation. Detective Combs reported
to the FBI in 1981 that he searched the establishment of Dick Reedus
looking for a bullet that was allegedly fired by Badelle. Detective Combss
search was in response to information given to police by Reedus that Badelle
had visited his store and fired several shots from a gun matching the
description of the gun used by the murderer at the service station.
Detective Combs did not find a bullet. Reedus testified at Badelles trial
regarding the alleged incident; however, it does not appear from the record that
Trial Counsel was aware of Detective Combss fruitless search, possibly precluding the defense
from information with which to impeach the credibility of Reedus.See footnote Moreover, Detective
Combss testimony would have been favorable to the defense. However, standing alone,
we do not find this information to be material, as there is no
reasonable probability that had the evidence been disclosed to the defense the result
of Badelles trial would have been different.
See Kyles, 514 U.S. 433-34.
G. Detective R.C. Greens Investigation
Badelle further asserts that the State possessed knowledge of information resulting from Detective
Greens investigation that another individual had committed this crime. (PC-R 30.)
Again, we choose to address the merits of this claim despite its absence
from Badelles post-conviction petition.
Detective Green testified as follows at the post-conviction hearing:
Q: [Post-conviction counsel]: . . . [D]o you know anything about the investigation that
Detective Highbaugh was conducting?
. . . .
A: [Detective Green]: Only personal knowledge of that would be I too had
been asked to work on this case. In my investigation I met
up with Detective Highbaugh at this particular location and thats where we shared
information. I think Detective Highbaugh had a name [Pee Wee], I had
a . . . certain floor of a certain apartment where the suspect
was hanging out. Detective Highbaugh had a name and a building, and
a floor, and thats how we met up.
. . . .
Q: Okay. And so by circumstance or fate, youre both staking out the
same place, correct, based on your own each independent confidential informant, or, informant
A: Well, I cant speak for Highbaugh how he arrived at what he did.
All I know is Highbaugh was there staking the place out when
I drove up and saw him and then we communicated as to what
Im doing and what hes doing.
(PC-R 1890, 1893-94.) Given that Detective Highbaugh testified for the defense, this
information was available to Trial Counsel through reasonable diligence. See Nikolaenko, 687
N.E.2d at 583. Accordingly, this information was not suppressed.H. Detective Clarence Grants Investigation
Again, alleged waiver notwithstanding, we address Badelles contention that the State suppressed information
communicated to them by Detective Grant. Badelle asserts that Detective Grant, then
of the robbery division, informed the homicide division that a trusted informant placed
Badelle away from the crime scene on the day of the murder.
Detective Grant testified as follows at the post-conviction hearing:
Q: [Post-conviction counsel]: Okay. Are you aware of any officers in your
career with IPD who were disciplined for conducting an independent investigation against the
wishes of his or her superiors?
A: [Detective Grant]: Me.
. . . .
A: . . . I had picked up some information on some investigations that
I had on robberies and I pursued it independently and I was told
to turn the information over to the detective thats handling the case.
Q: Did any of that relate at all to Mr. Badelle, the Defendant sitting
. . . .
Q: And can you tell us about that today, please?
A: A few days after the robbery/homicide at the Texaco station, uh, I contacted
a person that gives me good information . . . [and] I told
him that we had a murder/homicide up on 16th Street and if you
get any information, anything, I want you, you know, see if you can
find out what took place and who did it. I said right
at this time theyre searching for a guy named Robert Badelle.
. . . .
A: And he said, no, Badelle couldnt have done that, he said, man, we
was hanging out up here at the Drake [Motel] during the time that
man was killed at the service station. . . .
. . . .
A: . . . So I sent this information . . . to the
homicide branch . . .
. . . .
Q: Mr. Badelle was arrested on March 25th, 1978. Was the conversation with
[the informant] after Mr. Badelle was arrested or before?
(PC-R 1531-32, 1534.) It does not appear from the record that Trial
Counsel was made aware of this favorable evidence, or that reasonable diligence would
have produced this evidence. See Nikolaenko, 687 N.E.2d at 583. Moreover,
the nondisclosure of a known alibi witness erodes this Courts confidence in the
validity of Badelles conviction. Nevertheless, standing alone, we cannot say that this
information would have changed the outcome of Badelles trial.I. Detective Elmer Combss Investigation
Again, possible waiver notwithstanding, we turn to address Badelles contention that information known
to Detective E. Combs was suppressed by the State. The pertinent testimony
from the PC-R hearing is as follows:
Q: [Post-conviction counsel]: Please tell us what you remember about your involvement in
[the service station murder case] or in some, I guess, peripheral manner [sic].
A: [Detective E. Combs]: Detective Dennis Morgan asked Detective James Highbaugh to assist
him [in the service station murder case], and at the time Detective Highbaugh,
myself and another detective, Gilbert Coil were working the northside of Indianapolis.
Some kind of way Detective Highbaugh had a lead on a subject and
I remember going to . . . [a] street where its a
group of ice cream trucks, . . . . We went over
and sat one day for an hour and a half along with a
young man, I think his last name was Kennedy. . . .
Q: Was it Edwin Kennedy?
A: Edwin Kennedy, Im pretty sure that was the name. And we went
over there and sat about an hour, hour and a half, finally an
ice cream truck pulled up and a young black male got out of
it, and Mr. Kennedy made the statement, thats the man, thats the man
that helped me push my car.
. . . .
Q: Did the name Pee Wee ever come up?
A: Yes, this was supposed to have been the mans nickname, I think his
real name was Reginald somebody.
Q: Reginald White?
A: Reginald White, yeah.
(PC-R 1915-17.) Given that both Detective Highbaugh and Kennedy testified for the
defense, and were present during the above encounter, the information known to Detective
E. Combs was readily available to the defense through the exercise of reasonable
diligence. Accordingly, the State cannot be said to have suppressed information concerning
Kennedys identification of White. See Nikolaenko, 687 N.E.2d at 583.J. Joseph Harris
Again, possible waiver notwithstanding, we address Badelles contention that the conditions under which
Harris identified Badelle were impermissibly suggestive, and that the State suppressed these conditions
from Trial Counsel. As previously noted, [t]he viewing by a witness of
a newspaper article containing a photograph of the accused and identifying him as
a suspect does not constitute an impermissibly suggestive identification. Harris, 619 N.E.2d
at 581 (Ind. 1993.) (See infra. p. 10.) As such, neither Harriss
photo identification or line-up identification, both of which were subsequent to his possible
exposure to Badelles picture in the newspaper, constituted material evidence under this Brady
inquiry. See Farris, 732 N.E.2d at 233.
Again, possible waiver notwithstanding, we consider Badelles contention that the State used a
defective polygraph examination in violation of the law by reading it to the
grand jury, which led to Mr. Badelles indictment[,] and that the defense was
not provided with this information. Appellants Brief at 34. The results
of this polygraph examination were not a part of the evidence at Badelles
trial. Therefore, Badelles argument is not material to any issue raised at
trial. See Farris, 732 N.E.2d 233.
L. Cab Robbery
Badelle argues that [t]he evidence does not support a conclusion that the same
individual who committed the cab robbery committed the murder[,] . . . [and
that] [t]he State possessed knowledge that Jensens description of the cab robber differed
radically from the description of the murderer . . . [but] failed to
disclose the identity of Jensen to the defense until
one day before [Badelles]
second trial. . ..
See footnote Again, this issue was not raised in Badelles
petition for PCR, but we nevertheless address it.
Here, where Trial Counsel was given notice, albeit short notice, of the States
intent to call Jensen to testify, it cannot be held that the State
suppressed information known to him. Information known to Jensen was available to
Trial Counsel through reasonable diligence and therefore was not suppressed by the State.
See Nikolaenko, 687 N.E.2d at 583.
Badelle further contends that a gun belonging to Jeffrey Keys, and alleged to
have been used in a December 5, 1977 cab robbery, was given to
police by Jacqueline Keys and Linda Robinson. Possible waiver notwithstanding, we find
that Badelles citations to the record fail to support such an occurrence.
N. Jeffrey Keys
Next, Badelle argues that [he] is entitled to a reversal of his conviction
because the State withheld information relating Keys role in the cab robbery.
Appellants Brief at 40. We address this allegation despite its absence from
Badelles petition. Again, Badelles citations to the record do not support his
theory that the State suppressed information pointing to Keys as a suspect in
the cab robbery.
However, this Court does treat as newly discovered evidence the following testimony elicited
from Keys at the post-conviction hearing:
Q: [Post-conviction counsel] . . . I asked you whether you offered to
come forward some time during 1994 and admit that you had robbed the
yellow cab driver on December 5
th for a crime which Mr. Badelle was
A: [Keys] Yes.
Q: You did offer to come forward, why?
A: I did some cab robberies and if this man is being accused of
doing something that I did, he should not be accused of that.
Q: Okay. Did you speak with attorney Victoria Christ about signing an affidavit
admitting that you committed the cab robbery on December 5th, 1977, the crime
for which Mr. Badelle was convicted ?
A: Yes, I did speak with an attorney.
(PC-R 1781.) This newly discovered testimony is considered alongside Badelles Brady violations,
in our reconsideration of whether Badelle received due process. Alone however, this
evidence does not undermine confidence in Badelles murder conviction.O. Walter Cowherd
Badelle further argues that the State suppressed information concerning the whereabouts of a
suspect named Cowherd and the information he possessed. However, Badelles citations to
the record fail to reveal that the State knew of Cowherds location at
the time of trial. Moreover, the subject of statements Cowherd made to
Keys, regarding the murder at the service station, were addressed on direct appeal,
where our supreme court upheld the trial courts ruling that denied the admission
of these statements. We are precluded by the doctrine of res judicata
from revisiting these issues. See Conner, 711 N.E.2d at 1244.
Badelle alleges that the State concealed the existence of reward money in this
case, which reward was shared by one or more witnesses and also most
likely by police officers. Appellants Brief at 43. Badelle argues that
the States failure to disclose the existence of a reward prevented Trial Counsel
from the use of valuable impeachment evidence. We proceed to analyze this
argument despite its absence from Badelles PCR petition.
Testimony at the post-conviction hearing revealed that there were apparently two rewards offered
in relation to the service station murder. The first reward, as reported
in the Indianapolis Star on February 27, 1978, was for $600.00 and was
posted by area merchants. The second reward, as testified to by multiple
witnesses (including an IPD officer) at the post-conviction hearing, was for $25,000.00 and
was allegedly posted by either the Texaco Corporation or an employee thereof.
Information regarding the first of these reported rewards was clearly available to Trial
Counsel, as its existence was published several months prior to Badelles second trial.
As such, information regarding the first reward was not suppressed by the
State. As for the reward purportedly posted by Texaco, or an employee
See footnote there was no evidence offered at the post-conviction hearing that this reward
was ever paid. Accordingly, the only information unknown to Trial Counsel at
the time of Badelles second trial was that a $25,000.00 reward was posted.
The absence of this information alone does not undermine confidence in Badelles
See Farris, 732 N.E.2d at 233.
Q. Prosecutor Whitneys Sweep
Badelle also directs this Court to the month prior to his second trial,
when IPD conducted a sweep of a ten block area immediately north of
the service station in an effort to connect any other crimes and/or suspects
with the murder of Kannapel Sr. This sweep was conducted at the
request of Prosecutor Whitney. Badelle complains that the results of this sweep
were not made known to Trial Counsel. Possible waiver notwithstanding, Badelle has
failed to establish that this sweep resulted in favorable evidence to his defense.
R. Detective Morgan
Lastly, Badelle asserts that Detective Morgan committed perjury, thereby denying him a fair
trial. Specifically, Badelle alleges that Detective Morgan offered perjured testimony regarding his
solicitation of Highbaughs assistance in the investigation, whether hair tests were conducted, whether
blood tests were performed on items other than the victims clothing, and whether
[possible suspect] Cowherd had a pierced ear. Appellants Brief at 46.
While there are discrepancies between Detective Morgans testimony and testimony heard twenty years
later at Badelles PCR hearing, a preponderance of the evidence does not establish
that these discrepancies amounted to perjury.
Summary of Brady Allegations
No single alleged Brady violation was established as suppressed, favorable to the defense,
and material to an issue at trial. However, taken together, several of
these allegations raise concern as to whether the States conduct throughout the discovery
process impinged upon Badelles due process rights. Specifically, the omission of information
possessed by Detectives Combs and Grant casts some doubt on whether the State
provided evidence favorable to Badelle in response to his discovery requests. Nevertheless,
the failure to disclose this information did not rise to the level required
to reverse the PCR Courts judgment, as Badelles alleged Brady violations and the
supporting evidence are not without conflict and lead[ing] solely to a result different
from that reached by the post-conviction court. See Dickenson, 732 N.E.2d at
III. Goldsmith Subpoena
Badelle further argues that the PCR Court erred when it quashed a subpoena
propounded to Goldsmith.
See footnote We disagree.
Rule of Law
Ordinarily, counsel is not subject to being called as a witness. Matheney
v. State, 583 N.E.2d 1202, 1206 (Ind.1992), cert. denied, 504 U.S. 962, 112
S.Ct. 2320, 119 L.Ed.2d 238 (1992). There are exceptions, however, such as
when counsel is believed to have material information that cannot be disclosed otherwise.
Id. Where the evidence is easily available from other sources and absent
extraordinary circumstances or compelling reasons, an attorney who participates in a case should
not be called as a witness. Id. Generally, a prosecuting attorney cannot
be called as a defense witness unless the testimony sought is required by
a compelling and legitimate need. Id. If the prosecutor does not
have information vital to the case, the trial court may appropriately exercise its
discretion in denying the defendant's request to examine the prosecuting attorney. Id.
Jordan v. State, 691 N.E.2d 487, 490 (Ind. Ct. App. 1998).Analysis
Badelle issued a subpoena to then-Mayor Goldsmith seeking his testimony regarding, in summary,
the following subject areas: (1) the prosecutors policy on disclosing exculpatory evidence
under the rubric of Brady v. Maryland and prevailing standards at the time;
(2) the prosecutors policies for handling evidence and disclosing knowledge of potential witnesses;
(3) Goldsmiths discussions with deputy prosecutor Larry Whitney regarding the Badelle case; (4)
the handling of blood and hair evidence in the Badelle case; (5) knowledge
of reward monies being received by the prosecutors office; and, (6) the conduct
of deputy prosecutor Whitney. Goldsmith did not appear at the post-conviction hearing,
but responded to these areas of inquiry by way of the following affidavit.
I [Stephen Goldsmith] took office as Marion County Prosecutor on January 1, 1979.
At all times during my tenure as Marion County Prosecutor, it was the
policy of my office to fully comply with all requirements regarding the disclosure
of exculpatory evidence to defense counsel, including the requirements set forth in Brady
v. Maryland. My instructions to my subordinates was [sic] that if there
were areas where it was uncertain whether disclosure should be made, they should
go ahead and provide disclosure.
I spoke frequently with Larry Whitney on [a] number of matters, probably including
the Badelle case. I do not recall the contents of any of
At no time have I have [sic] learned that there was any evidence
withheld from the defense in the Badelle trial, or that there were any
forensic or other tests conducted for which the results were not provided to
Mr. Badelles counsel. I have no recollection of speaking with Mr. Whitney
regarding a serology report or a written hair and trace analysis report.
(PC-R 538-39.)IV. Ineffective Assistance of Trial Counsel and Appellate Counsel
Here, while there was a compelling and legitimate need for some of the
information Badelle requested, that need was met through Goldsmiths affidavit and the testimony
provided by Whitney. Specifically, both Goldsmith and Whitney indicated that it was
the policy of the prosecutors office to make available all States evidence.
Moreover, Whitney testified that this practice held true for the Badelle case, testifying
that his complete Badelle file was made available to Trial Counsel. Additionally,
the record concerning the States handling of blood and hair evidence was more
than adequately reconstructed at the post-conviction hearing. Goldsmith had no recollection regarding
these tests or the contents of other conversations he had with Whitney, and
as such did not possess material information that could have affected the PCR
Courts judgment. Lastly, this Court does not find Badelles insinuations of improper
receipt of reward monies or actions by Whitney outside of the Badelle case
to be adequately supported by the record. The PCR-Court did not abuse
its discretion when it quashed Badelles subpoena of Goldsmith.
A. Rule of Law
Initially, we note the well-established law invoked when a defendant argues he received
ineffective assistance of counsel.
Indiana analyzes claims of ineffective assistance of counsel according to the two-part test
announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). See, e.g., Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.
1994). First, we require the defendant or petitioner to show that, in
light of all the circumstances, the identified acts or omissions of counsel were
outside the wide range of professionally competent assistance. Id. This showing
is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms.
Id. (citing Turner v. State, 580 N.E.2d 665, 668 (Ind. 1991)).
Second, we require the defendant or petitioner to show adverse prejudice as a
result of the deficient performance. This showing is made by demonstrating that
counsel's performance was so prejudicial that it deprived the defendant or petitioner of
a fair trial. Lowery, 640 N.E.2d at 1041. We will conclude
that a fair trial has been denied when the conviction or sentence has
resulted from a breakdown of the adversarial process that rendered the result unreliable.
Id. (citing Best v. State, 566 N.E.2d 1027, 1031 (Ind. 1991)).
See also Sanchez v. State, 675 N.E.2d 306, 310 (Ind. 1996).
Wisehart v. State, 693 N.E.2d 23, 38 (Ind. 1998.) cert. denied. Moreover,
"[i]t shall strongly be presumed that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment." Smith v. State,
678 N.E.2d 1152, 1156 (Ind. Ct. App. 1997) (quoting Bellmore v. State, 602
N.E.2d 111, 123 (Ind. 1992)). Further, the standard of review for claims
of denial of the right to effective appellate counsel is the same as
that used for trial counsel. Minnick v. State, 698 N.E.2d 745, 754
(Ind. 1998). Finally, as Badelle is appealing the denial of his petition
for post-conviction relief, he faces the additional hurdle of convincing this Court that
the evidence, as a whole, leads unerringly and unmistakably to a decision opposite
that reached by the post-conviction court. See Haynes v. State, 695 N.E.2d
148, 153 (Ind. Ct. App. 1998). As Badelle raises numerous ineffective assistance
of counsel claims, several of which concern the merits of issues already addressed
in this opinion, we turn now to discuss those issues which remain, beginning
with those assertions that relate to Trial Counsel.B. Trial Counsel - Analysis
1. Mistaken Identity Instruction
We review trial court decisions concerning instructions for an abuse of discretion.
Emerson v. State, 724 N.E.2d 605, 608 (Ind. 2000). Here, Badelle asserts
that Trial Counsel was ineffective for failing to tender a jury instruction on
the issue of mistaken identity. We disagree.
In Emerson, the defenses theory was mistaken identity and the defense counsel tendered
an instruction that told the jury it could consider conditions such as lighting
that might affect a witnesss ability to observe, whether a witnesss later identification
was the product of his or her own recollection as opposed to some
other influence, and so on. Id. Our supreme court held that
the trial court properly rejected defense counsels tendered instruction, finding that the trial
courts more general witness credibility instruction adequately covered the identification issue.
In the present case, the trial court instructed the jury regarding the States
burden of proof and informed them that they were the exclusive judges of
the evidence and witness credibility. Given Emerson, had Trial Counsel tendered a
more specific instruction regarding mistaken identity it may or may not have been
appropriate, (or for that matter strategically advantageous for Badelle), but regardless, its absence
cannot be said to amount to ineffective assistance. Therefore, the PCR Court
did not abuse its discretion when it determined that Trial Counsels failure to
tender an instruction addressing mistaken identity did not amount to ineffective assistance of
2. Pre-Indictment Right to Counsel
Badelle further asserts that Trial Counsel was ineffective for failing to include pre-indictment
right to counsel claims in his motion to correct error. Again, we
The guarantees of an accused's right to counsel in both the Sixth Amendment
and Art. I, Section 13 of the Indiana Constitution apply "at any stage
of the prosecution, formal or informal, in court or out, where counsel's absence
might derogate from the accused's right to a fair trial." Jones v.
State, 655 N.E.2d 49, 54 (Ind. 1995) (quoting U.S. v. Wade, 388 U.S.
218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). The application of this
rule depends upon whether the challenged event occurred at a "critical stage" of
the proceedings. Manley v. State, 410 N.E.2d 1338, 1342 (Ind. Ct. App.
1980). The proper test for determining whether a particular proceeding is a
"critical stage," to which the assistance of counsel guarantee applies, is whether the
defendant is confronted with the intricacies of the law or the advocacy of
the public prosecutor or prosecuting authorities. Williams v. State, 555 N.E.2d 133,
136 (Ind. 1990). In this state, the commencement of prosecution is governed
by Ind.Code § 35-34-1-1 in which the filing of an information or indictment
begins the formal criminal process. Little v. State, 475 N.E.2d 677, 683
. . . .
We find no support for the assertion that the right to counsel can
attach earlier than the initiation of criminal proceedings.
Callis v. State, 684 N.E.2d 233, 238 (Ind. Ct. App. 1997) (emphasis added).
Accordingly, Trial Counsel was not ineffective for failing to raise those issues
pertaining to Badelles lack of representation prior to his indictment.3. Unduly Suggestive Pre-Trial Line-up
Next, Badelle argues that Trial Counsel was ineffective for fail[ing] to object to
the unduly suggestive line-up at the start of the second trial. Appellants
Brief at 60; Reply Brief of Appellant at 15. However, Badelle fails
to support this contention with relevant citations to the record or caselaw.
Moreover, [t]he cases hold that regardless of error in pretrial identification procedures or
their suggestiveness if there is sufficient basis for identification independent of the pretrial
procedure, there is no error in permitting the in-court identification. Filler v.
State, 421 N.E.2d 1146, 1148 (Ind. Ct. App. 1981). Here, several witnesses
made proper in court identifications (see supra 5. In-court Identification of Badelle),
thereby preventing any evidence admitted from an allegedly improper pretrial identification procedure from
causing any prejudice to Badelle. Accordingly, we do not find Trial Counsels
failure to object amounts to ineffective assistance of counsel.
4. Trial Counsels Pre-Trial Investigation
Additionally, Badelle argues that Trial Counsel was ineffective for failing to conduct a
reasonably satisfactory pre-trial investigation that would have uncovered additional witnesses favorable to his
defense. Again, we disagree.
Indiana caselaw provides that effective representation requires adequate pretrial investigation and preparation.
Hernandez v. State, 638 N.E.2d 460, 461 (Ind. Ct. App. 1994). However,
it is also well established that this court should resist judging an attorneys
performance with the benefit of hindsight. Id. at 462. As this
Court recognized in Hernandez, our Supreme Court has squarely addressed the concerns of
second-guessing an attorneys judgment:
"A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the evaluation, a court must indulge
the strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound trial strategy.' "
Hernandez, 638 N.E.2d at 462 (quoting Strickland, 466 U.S. at 689, 104 S.Ct.
at 2065).5. In-court Identification of Badelle
Here, Trial Counsels defense was premised upon mistaken identity. In support of
this defense, Trial Counsel put forth evidence showing that the service station owner,
Piles, identified White as the loiterer inside the station on the day of
the murder at a line-up conducted on May 24, 1979.
See footnote (T.R.
1619.) Further, witness Kennedy testified that Badelle was
not the individual who
assisted him in pushing his car off the service station lot. Additionally,
Trial Counsel challenged the competence of witness Harris and cross-examined witness Kannapel Jr.
regarding inconsistencies in his identification statements and testimony. Also, Trial Counsel elicited
testimony from Detectives Highbaugh and Morgan regarding the multiple suspects considered by IPD
during the course of their investigation. Clearly the foregoing is not an
exhaustive list of the evidence that Trial Counsel presented to the jury, however
it suffices for our purposes of determining whether Trial Counsel provided adequate pretrial
investigation and preparation. Trial Counsels efforts were more than adequate to support
his defense of mistaken identity. Accordingly, Trial Counsels decision not to call
or seek out additional witnesses was a judgment call within the wide range
of reasonable professional assistance. See id.
Badelle also asserts that Trial Counsel was ineffective for failing to object to
the in-court identifications offered by witnesses Harris, Piles, and Kannapel Jr. We
Whenever a claim of ineffective assistance is based on a failure to object,
the defendant must demonstrate that a proper objection, if made, would have been
sustained by the trial court. Cossel v. State, 675 N.E.2d 355, 361
(Ind. Ct. App. 1996). Here, each of the aforementioned witnesses sufficiently relayed
the facts under which they viewed the alleged perpetrator to lay an adequate
foundation for their in-court identifications. Thus, Trial Counsels failure to object did
not render his performance unreasonable.
6. Prior Bad Acts
Next, Badelle argues that Trial Counsel was ineffective for failing to move to
suppress Badelles prior bad acts and/or criminal activity. Specifically, Badelle contends that
failure to file a motion in limine regarding Badelles criminal history resulted in
the prejudicial testimony of Detectives Morgan and Highbaugh. However, while the jury
could have inferred from Detective Morgans testimony regarding the line-up process that Badelle
had a criminal record, any such prejudice was sufficiently cured by the trial
courts admonishment to the jury. (See Lay v. State, 659 N.E.2d 1005,
1009 (Ind. 1995)) (holding in part that a timely and accurate admonition is
presumed to cure any error in the admission of evidence and that the
trial court is in the best position to judge the potential impact on
the jury of such testimony.) Moreover, Trial Counsel could not have reasonably
anticipated that his own witness, Detective Highbaugh, would reference Badelles prior arrests.
Trial Counsels failure to file the proposed motion in limine did not render
his assistance ineffective.
7. Competency of Harris
Badelle bases his next ineffective assistance claim on Trial Counsels failure to make
an offer to prove regarding the competency of witness Joe Harris. The
trial record shows that Trial Counsel objected to Harriss competency, but was overruled
by the trial court.
The competency of a challenged witness is to be decided by the trial
court as a matter of law. Kimble v. State, 262 Ind. 522,
525, 319 N.E.2d 140, 143 (1974). When the trial court has found
a witness to be competent, the reviewing court will interfere only if there
is a manifest abuse of discretion. Morris v. State, 172 Ind.App. 509,
513, 360 N.E.2d 1027, 1029 (1977). Here, as the State notes, Harriss
testimony indicated that he was able to hold a job, live by himself,
pay his bills, and further that he understood the difference between the truth
and a lie. In light of such testimony, the trial courts ruling
that Harris was competent to testify was not an abuse of its discretion,
and Trial Counsels decision not to further pursue or preserve the matter, through
an offer to prove, was within the realm of effective assistance.
8. Double Jeopardy
Badelle further contends that Trial Counsel failed to properly argue the double jeopardy
claim . . . Appellants Brief at 69. We disagree.
Trial Counsel did present a double jeopardy argument in the form of a
motion to dismiss. This motion adequately set forth the double jeopardy argument
and we will not second-guess Trial Counsels efforts.
9. Impeachment of Robinson
Badelle argues that Trial Counsel failed to object to the impeachment of witness
Linda Robinson. However, the record indicates otherwise, as Trial Counsel lodged the
following objection during Robinsons testimony:
The use of someones arrest record cannot be used unless its to impeach
that witness, and then it has to be for an impeachable offense under
Ashton v. Anderson.
As such, Badelles claim is without merit.Impeachment of Detective Moistner
Additionally, Badelle argues that Trial Counsel failed to impeach [Detective Moistners] credibility based
upon his prior history of police misconduct and also failed to impeach him
regarding his misrepresentation to the court about locating [possible suspect] Cowherd. Brief
of Appellant at 70. Badelle fails to support these factual allegations by
citation to the record, and we are not inclined do so for him.
Lastly, Badelle argues that Trial Counsel failed to provide Badelle with adequate representation
at the sentencing phase of the proceeding. Brief of Appellant at 70.
Specifically, Badelle complains that Trial Counsel failed to provide mitigating factors in
support of his defense. However, Badelle fails to put forth evidence that
any mitigating circumstances existed. As such, Badelle has failed to meet his
requisite burden for establishing inadequate representation.
B. Appellate Counsel - Analysis
At the outset of this section we note that it is the responsibility
of appellant to support his argument on appeal with appropriate citations to legal
authorities as well as to appropriate sections of the record. Marshall v.
State, 621 N.E.2d 308, 318 (Ind. 1993). Without citation to legal authority
in addition to citation of the record, we cannot determine the merits of
the claim and, thus, consider the issue waived. Id.
1. Double Jeopardy
Again, Badelle asserts the claim that counsel was ineffective for failure to raise
a double jeopardy claim based upon his retrial. We disagree.
The Double Jeopardy Clause provides that no person will "be subject for the
same offence to be twice put in jeopardy of life or limb."
U.S. Const. amend. V. This prohibition applies to the states via the
Fourteenth Amendment. Mason v. State, 689 N.E.2d 1233, 1238 (Ind. 1997).
The clause protects people from, among other things, a second prosecution for the
same offense after conviction. Id. However, where there is sufficient evidence
to support a defendant's convictions, there is no double jeopardy bar to a
retrial. Robinette v. State, 741 N.E.2d 1162, 1168 (Ind. 2001). Here,
Badelles conviction was supported by sufficient evidence, (see supra. V. Sufficiency of
the Evidence), and therefore Appellate Counsel was not ineffective for not raising a
double jeopardy claim.
2. Gerald Keys
Next, Badelle argues that Badelle was not given ample opportunity to pursue exculpatory
evidence from Gerald Keys, which caused a trial result that was fundamentally unfair
and unreliable. Brief of Appellant at 75. However, Badelle fails to
support this argument with citation to the record or caselaw, and we are
not inclined to do so for him. See Marshall, 621 N.E.2d at
3. Motion for Continuance
Further, Badelle asserts that Appellate [C]ounsel failed to raise the issue of the
trial courts denial of the motion for continuance to locate [Walter] Cowherd.
Appellants Brief at 25. Again, this argument is made devoid of record
cites or supporting caselaw, and we are not inclined to address it.
4. Dismissal of Jurors
Badelle argues that Appellate Counsel was ineffective for failing to appeal the error
resulting from the trial courts dismissal of two jurors [from the jury pool]
without a showing of prejudice or bias. Appellants Brief at 76.
Article 1, Section 13 of the Indiana Constitution guarantees to a defendant the
right to an impartial jury. Accordingly, a biased juror must be dismissed.
Joyner v. State, 736 N.E.2d 232, 238 (Ind. 2000). Whether to
excuse a juror for cause rests within the sound discretion of the trial
court. Wisehart v. State, 693 N.E.2d 23, 55 (Ind. 1998). We
will sustain the trial court's decision unless it is illogical or arbitrary.
Id. Here, two prospective jurors were dismissed from the jury pool because
they were present in the courtroom during discussion between the trial court and
counsel. We need not analyze whether the trial court properly established cause
for these dismissals as we find any effect from that decision to be
too remote to have prejudiced Badelles trial. Accordingly, Appellate Counsel was not
ineffective for not raising this issue in Badelles direct appeal.
5. Badelle in Handcuffs
Badelle contends that Appellate Counsel failed to preserve on appeal the error resulting
from the trial courts denial of Badelles motion for mistrial due to at
least two (2) jurors having seen him being escorted with other prisoners and
in handcuffs during the course of the trial. Brief of Appellant at
77. We disagree.
Trial Counsel sought a mistrial based on the jurors observations. A ruling
on a motion for a mistrial is made within the trial court's discretion.
Bergfeld v. State, 531 N.E.2d 486, 491 (Ind. 1988). Additionally, the
fact that a defendant has been seen by jurors while being transported in
handcuffs is not a basis for reversal, absent a showing of actual harm.
Id. Further, in Bergfeld, our supreme court held that [e]ven if
there was evidence that the jurors did in fact see [defendant] handcuffed, appellant
has shown no prejudice because jurors would reasonably expect that anyone in police
custody would be restrained, regardless of the nature of the charge against the
accused. Id. Similarly, Badelle has failed to show prejudice, and as
such we cannot hold that Appellate Counsel was ineffective for not presenting this
issue on direct appeal.
6. Aaron Jenson
Next, Badelle argues that Appellate Counsel failed to preserve on appeal the error
resulting from the trial courts denial of Badelles motion to suppress the testimony
of States witness Aaron Jensen [cab driver] when that testimony contained inadmissible references
to the [sic] Badelles unrelated crimes. Appellants Brief at 77. Again,
however, this argument is made without supporting record cites or precedent. As
such, it is waived. See Marshall, 621 N.E.2d at 318.
7. Walter Cowherds Earring
Badelle further asserts that Appellate Counsel was ineffective for failing to address the
trial courts refusal to let two witnesses testify. While the majority of
these two witnesses testimony was precluded on the grounds of hearsay, a ruling
affirmed by our supreme court, Badelle alleges that it was error for the
trial court not to allow these witnesses to testify that Walter Cowherd, who
at one time was under investigation for the Kannapel murder, wore an earring
in his left ear, similar to Badelle. Badelle argues that this testimony
was essential in light of Jensens testimony that the man who robbed him
was wearing an earring in his left ear. Again, this argument is
made absent citation to the record or supporting caselaw, and is therefore waived.
See Marshall, 621 N.E.2d at 318.
Badelle also argues that Appellate Counsel was ineffective for failing to preserve the
issue that the trial court erred in overruling trial counsels objections to the
polygraph evidence relating to [Walter] Cowherd. Appellants Brief at 79. Again,
this argument is unsupported by citations to the record or caselaw, and thus
is waived. Id.
9. Denial of Continuance
Badelle argues that Appellate Counsel was ineffective for failing to preserve the issue
that the trial court erred in denying Trial Counsels motion for continuance to
retrieve Detective Morgan. Again, this assertion is presented without proper citation to
the record or supporting caselaw, and is therefore waived. Id.
Isolated poor strategy or bad tactics do not necessarily amount to ineffective assistance
of counsel unless, taken as a whole, the defense was inadequate. Brown
v. State, 698 N.E.2d 1132, 1139 (Ind. 1998) cert. denied. Furthermore, we
will not lightly speculate as to what may or may not have been
an advantageous trial strategy as counsel should be given deference in choosing a
trial strategy which, at the time and under the circumstances, seems best.
Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998.) Here, Badelle has
failed to substantiate any error, by either Trial Counsel or Appellate Counsel, which
would convince this Court that he received an inadequate defense.
V. Sufficiency of the Evidence
Badelle contends that there is insufficient evidence to sustain his conviction. This
argument was not asserted in Badelles direct appeal. Generally, allegations of errors
not raised on direct appeal are considered waived for purposes of post-conviction relief.
Green v. State, 525 N.E.2d 1260, 1261 (Ind. Ct. App. 1988).
However, a conviction without sufficient evidence constitutes fundamental error, and fundamental error may
be raised in a post-conviction proceeding, within the rules of post-conviction procedure.
Id. Here, we choose to address Badelles sufficiency of the evidence argument.
A single eyewitness's testimony is sufficient to sustain a conviction. Emerson v.
State, 724 N.E.2d 605, 609-10 (Ind. 2000). Moreover, any inconsistencies in identification
testimony go only to the weight of that testimony, as it is the
task of the jury to weigh the evidence and determine the credibility of
the witnesses. Id. at 610. This Court does not weigh the
evidence or resolve questions of credibility when determining whether the identification evidence is
sufficient to sustain a conviction. Id. Instead, we look to the
evidence and the reasonable inferences therefrom which support the verdict of the jury.
Here, at the first line-up that included Badelle, conducted on March 30, 1978,
six men stood in front of witnesses Harris, Piles, Kannapel, Jr., and Kennedy.
The line-up participants were first viewed without a hat and then viewed
with the hat recovered from the scene. Harris identified Badelle when adorned
with the hat; Piles identified Badelle in both line-up arrangements; Kannapel, Jr. identified
Badelle without the hat; and Kennedy made no identification. Subsequent inconsistencies at
trial in identification testimony remained a matter of evidentiary weight and witness credibility,
areas squarely within the province of the jury. As such, there was
sufficient evidence to sustain Badelles conviction.
FRIEDLANDER, J., and MATTINGLY-MAY, J., concur.
This testimony purports to relay a meeting that took place in
the fall of 1994 between Catherine Shepard (Badelles cousin), Detective Morgan and Officer
Larry Larkin. According to Shepard, the meeting was held at the request
of Officer Larkin.
Footnote: Both Badelle and the State cite Petitioners Offer to Prove motion
for reference to Highbaughs statements to the FBI, yet the record does not
appear to contain Highbaughs actual statements, which were denoted Petitioners Exhibits CCC and
DDD at the post-conviction proceeding. Nevertheless, the parties appear to be in
agreement as to the content of these statements.
Detective Highbaugh was suspended without pay until such time as his
hearing before the Police Merit Board for an incident in which he shot
a fellow officer. Prior to this suspension, Detective Highbaugh had been reprimanded
and suspended on multiple occasions.
Footnote: Rice was not called to testify at Badelles trial.
Footnote: White was not called to testify at Badelles trial.
Footnote: This testimony conflicts somewhat with that given by witnesses at Badelles
trial, including Kennedy, who indicated that his car was pushed
off the lot,
and that the black male who assisted came from inside the lobby of
the service station.
Detective Combs did not testify at Badelles trial.
Footnote: Reedus was deceased at the time of the post-conviction hearing.
Footnote: Detective Green did not testify at Badelles trial.
Detective Grant testified at Badelles trial. However, his testimony consisted
solely of describing the manner in which IPD mug shot books were compiled.
Footnote: Detective E. Combs did not testify at Badelles trial.
Footnote: Harris testified at trial.
Footnote: On the same evening as the service station murder, December 5,
1977, at approximately 8:00 p.m., Aaron Jensen, a cab driver, was robbed.
The service station murder and the cab robbery were investigated separately by IPD.
However, by the time of Badelles second trial, Jensen testified that Badelle
was the individual who had robbed him that night. Following Badelles murder
trial, a probable cause affidavit was filed which led to Badelles indictment and
subsequent conviction for robbery. In 1981, Badelle was sentenced to fifty-years imprisonment
on the robbery conviction, to be served concurrent to his sixty-year murder conviction.
Badelle cites exhibit HH from the post-conviction hearing as supporting his fifty-year
robbery sentence, however exhibit HH does not appear in the record. Nevertheless,
the parties do not contest this sentence and it does not bear on
the merits of this PCR appeal.
Footnote: Jensen was deceased at the time of Badelles post-conviction hearing.
Footnote: Keys did not testify at trial.
Footnote: Cowherd did not testify at trial.
Footnote: The Texaco Corporation had no record of the reward offered in
this case. However, it could not verify that its records were complete,
or that it would have maintained any record of a reward paid by
a Texaco Corporation employee.
Footnote: At the time of Badelles trial, Goldsmith was Marion County Prosecutor.
Footnote: Piles was the owner of the service station at the time
of the December 5
th, 1977 murder. Piles visited the service station on
the day of the murder and viewed the black male who was waiting
in the lobby area. (T.R. 1590.) Thereafter, Piles viewed four line-ups
conducted by IPD, two conducted on March 30, 1978 and two conducted on
May 24, 1979. On March 30th, 1978, Piles selected Badelle in both line-ups
(one conducted without a hat and one conducted with a hat), but on
May 24th, 1979, Piles selected White in both line-ups. Badelle and White
did not appear in the same line-up. (T.R. 1619.)
Since Badelle has failed to establish that any single alleged error
amounted to inadequate representation by Trial Counsel, we need not separately address Badelles
final contention of cumulative error.