ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Steve Carter Susan K. Carpenter
Attorney General of Indiana Public Defender of Indiana
Timothy W. Beam Laura L. Volk
Deputy Attorney General Deputy Public Defender
Indianapolis, Indiana Kathleen Cleary
Deputy Public Defender
Barbara S. Blackman
Special Assistant to the Public Defender
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
STATE OF INDIANA )
Appellant, )
)
v. ) 49S00-0002-PD-112
)
WALTER DYE )
Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT, CRIMINAL DIVISION
The Honorable Patricia Gifford, Judge
Cause No. 49G04-9608-CF-112831
________________________________________________
On Appeal from Post-Conviction Relief
March 6, 2003
DICKSON, Justice
Walter Dye was convicted of three counts of murder and the jury
recommended the death penalty. Following a subsequent sentencing hearing,
the trial court sentenced the defendant to death. We affirmed his
convictions and sentence on appeal. Dye v. State, 717 N.E.2d 5, 22 (Ind.
1999). The defendant thereafter petitioned for post-conviction relief, and
the post-conviction court rejected most of his claims except that of juror
misconduct. As to this latter claim the post-conviction court vacated both
the defendant's death sentence and his convictions. The post-conviction
court concluded that a juror's omissions and false responses on her jury
questionnaires and during voir dire amounted to gross misconduct that
probably harmed the defendant, denying him a fair trial. The State appeals
this determination, and Dye cross-appeals the post-conviction court's
rejection of his other claims. We affirm the post-conviction court.
Either the State or the defendant may appeal a post-conviction
decision, and in either case our standard of review is governed by Indiana
Trial Rule 52(A):
On appeal of claims tried by the court without a jury or with an
advisory jury, at law or in equity, the court on appeal shall not set
aside the findings or judgment unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.
The State's appeal is determined using the "clearly erroneous" standard.
It is a review for sufficiency of the evidence, and we neither reweigh the
evidence nor determine the credibility of witnesses but consider only the
probative evidence and reasonable inferences supporting the judgment.
Moore v. State, 771 N.E.2d 46, 50 (Ind. 2002). We reverse only on a
showing of "clear error" – that which leaves us with a definite and firm
conviction that a mistake has been made. Spranger v. State, 650 N.E.2d
1117, 1119 (Ind. 1995). In reviewing the State's claim that the post-
conviction court erroneously granted relief to the defendant, "the inquiry
is essentially whether there is any way the trial court could have reached
its decision." Id. at 1120 (emphasis in original).
The State contends that the post-conviction court clearly erred in
concluding that a new trial was required by its findings that Jackie Gunn,
a juror during both the guilt phase and penalty phase of the defendant's
trial, concealed her and her family's criminal histories, her history as a
victim of a crime, and her disposition to impose the death penalty. The
State argues that the inaccuracies in Gunn's questionnaire answers were
unintentional, her victimization was dissimilar and remote, and that she
repeatedly affirmed that she could be a fair juror and would decide the
case on the evidence presented.
The prospective jurors were sent two questionnaires in advance of
trial, which Gunn received and completed. In one, the prospective jurors
were requested to answer various questions including the following:
25. Have you or anyone in your immediate family ever appeared as a
witness in any court case, before a grand jury, or any type of
proceeding?
26. Have you or any family member ever been a witness to a crime?
27. Have you or any family member ever been a victim of a crime?
28. Have you or any family member ever been charged with a crime?
41. Do you feel the death penalty should be mandatory for any
particular type of crime?
44. If you believed that a person was guilty of the intentional murder
of another person, would you automatically[:] vote for the death
penalty; vote against the death penalty; don’t know
Petitioner’s Exhibit 11(A) (Gunn Questionnaire). In another questionnaire,
the prospective jurors were asked:
10. Have you or any member of your immediate family ever appeared in
court for any reason (other than traffic)
11. Have you or any member of your immediate family ever been a
victim of a crime?
Id.
In answering the questionnaires, Jackie Gunn answered each of the
above questions negatively, indicating that neither she nor any members of
her family had ever appeared as a witness or been in court for any other
reason, or been the victim of, witness to, or charged with a crime. She
also stated in her juror questionnaire that she did not feel the death
penalty should be mandatory for any type of crime, but would vote
automatically for the death penalty if a person were found guilty of
intentional murder.
During voir dire, the trial court asked the prospective jurors if they
believed everyone who commits murder should be given the death penalty, and
Gunn did not respond. Trial Record at 863-65. Also during voir dire,
defense counsel asked: "Anybody have any contact with the prison system as
a worker, or even somebody in your family that's been in prison? And I
don't mean the county jail, I mean the Department of Corrections?" Id. at
1639. Mrs. Gunn responded, "I had a brother in prison, and he's deceased
now." Id. When asked, she said that she had never visited her brother,
who had been incarcerated in California. Id. She was not asked nor did
she volunteer any further details. Gunn was seated on the jury.
At the post-conviction review hearing, however, Gunn testified that
her brother had been convicted of two homicides in California, was
sentenced to death, and died while incarcerated. P.C.R. Tr. at 17-18.
Members of her family testified on his behalf during the penalty phase of
his capital case. Gunn testified that she believed her brother deserved
the death penalty because a person should receive the death penalty for
killing someone. Id. at 18. In her testimony, she explained that she did
not mention her brother or his death sentence in her questionnaire because
"at the time I didn’t think it was anybody's business." Id. at 22. Two of
Gunn's siblings had been arrested, but she did not mention that in her
questionnaire because, "I didn't think about none of them." Id. She did
not disclose her own conviction for operating while intoxicated because she
"didn't even think about it." Id. When she was two or three years old she
was raped by an uncle, a fact that she revealed in her post-conviction
testimony but did not disclose on her questionnaire because she "tried to
forget it." Id. Her uncle was never charged for the offense. Gunn
admitted in her post-conviction testimony that she thought about the rape
during the defendant's trial. Id. at 20.
The State argues that because the defendant failed to establish that
Gunn intentionally withheld the information regarding her and her family's
criminal histories, her omissions do not amount to gross misconduct and
probable harm. Furthermore, the State urges that Gunn's failure to
disclose that she had been raped as a young child was not gross misconduct
because Gunn also stated that she would be able to be an impartial juror
and appropriately evaluate the evidence, and because any bias Gunn might
have had because of being raped "is too remote and attenuated to sustain a
reasonable degree of probability that she was biased." Br. of Appellant at
10. The State also claims that Gunn's failure to respond to the court's
questions in voir dire regarding the automatic imposition of the death
penalty does not amount to gross misconduct because the defendant waived
consideration of the issue by failing to challenge Gunn for cause based on
her inconsistent responses. The State also asserts that there is no
evidence that at the time of the defendant's trial she was an "automatic
death penalty juror." Id. Finally, the State argues that there is a
considerable societal interest in the finality of criminal proceedings, and
that the integrity of the jury system requires us to reverse the post-
conviction court's judgment. Id.
The United States Supreme Court articulated a particularized test for
determining whether a new trial is required due to juror deceit during voir
dire or on jury questionnaires in McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 104 S.Ct 845, 78 L.Ed.2d 663 (1984). The two-part
test states that in order to obtain a new trial, the defendant "must first
demonstrate that a juror failed to answer honestly a material question . .
. and then further show that a correct response would have provided a valid
basis for a challenge for cause." Id. at 556, 104 S.Ct. at 845, 781
L.Ed.2d at 671. The juror's incorrect response in McDonough was an honest
mistake, but the test applies equally to deliberate concealment and to
innocent non-disclosure. See, e.g., Zerka v. Green, 49 F.3d 1181, 1185
(6th Cir. 1995); United States v. Langford, 990 F.2d 65, 68 (2d Cir. 1993);
Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1141-42 (7th Cir.
1992). McDonough was a civil case, but it has been applied on federal
habeas review. See Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir.
1998).
In Warner v. State, 773 N.E.2d 239 (Ind. 2002), we confronted a claim
that juror misconduct in a criminal case warranted a new trial and noted:
Generally, proof that a juror was biased against the defendant or
lied during voir dire entitles a defendant to a new trial. A
defendant seeking a new trial because of juror misconduct must show
gross misconduct that probably harmed the defendant. We review the
trial judge's determination on these points for abuse of discretion.
Id. at 246 (included citations omitted); see also Allen v. State, 749
N.E.2d 1158, 1164 (Ind. 2001) ("juror misconduct will warrant a new trial
only when the misconduct is both 'gross' and 'harmed the defendant' ").
The trial court in Warner concluded that the juror did not deliberately
withhold information, that she was not biased, and that the defendant
received a fair trial. On appeal, we found no abuse of discretion,
declined to find gross misconduct, and concluded that there was "very
little likelihood that the juror's omitted response in any way affected the
verdict." Warner, 773 N.E.2d at 247.
In contrast, the post-conviction court here concluded that juror Gunn
made omissions and false statements on her jury questionnaires and during
voir dire, that those responses amounted to gross misconduct, and probably
harmed the defendant by denying him a fair trial. These determinations
present mixed issues of fact and law. We do not defer to the post-
conviction court's determinations of law, but we do accept its factual
findings unless they are "clearly erroneous." Conner v. State, 711 N.E.2d
1238, 1245 (Ind. 1999).
Personal and Familial Criminal Histories
The State argues that the post-conviction court erroneously found
Gunn's misstatements regarding her personal criminal history and her
siblings' criminal histories to be gross misconduct that probably harmed
the defendant. As to the concealment of Gunn's brother's California murder
convictions and death sentence, the State argues that any misconduct in
failing to include the information in the questionnaire was cured when she
mentioned him in voir dire[1] because defense counsel then had the
opportunity to question Gunn about her brother. The post-conviction court
characterized Gunn's voir dire disclosure of her brother's incarceration as
"less than candid." Appellant's App. at 811.
During his testimony in the post-conviction proceedings, the
defendant's trial counsel was asked, "[h]ad you known that her brother had
been convicted of two sexual homicides and received a death sentence which
she believed that he deserved, would you have challenged her for cause?"
He responded, "[y]es and I certainly would have struck her peremptorily."
P.C.R. Tr. at 646. Later, when asked whether he would have challenged Gunn
for cause based on her family's involvement with the justice system,
counsel answered:
That's a tough question to answer. Normally if a juror has a family
with a criminal history, normally the impression would be she would
favor the defense. Most people whose family members have been
prosecuted feel that their family members did not get fair treatment
from the State. I would want to question her further about what
feelings she had about the entire justice process caused by her
family's involvement in these cases and her own personal involvement.
P.C.R. Tr. at 647.
The State argues that Gunn's questionnaire responses relating to her
conviction for driving while intoxicated and her siblings' arrests do not
amount to gross misconduct. As to Gunn's questionnaire response
deliberately concealing that her brother had been convicted and sentenced
to death in California, the State argues that she corrected the omission
during jury selection by stating that she had a brother in prison in
California. It is correct that Gunn truthfully answered what she was asked
on voir dire. Although she did not volunteer her brother's death sentence,
the questions asked of her did not seek this information. Jurors cannot be
expected to answer questions they are not asked, no matter how relevant the
answers may be to the lawyers and the trial court. While Gunn's voir dire
answers may have been literally truthful, however, this does not excuse the
fact that her brother's prior convictions and death sentence were
intentionally obscured by her deliberate dishonesty in responding to the
questionnaire regarding family criminal charges. The post-conviction court
did not err in finding this to be gross misconduct.
Gunn's Experience as a Victim of Rape
In her questionnaire, Gunn twice answered "no" to the question of
whether she or any member of her family had ever been a victim of a crime.
Petitioner’s Exhibit 11(A) (Gunn Questionnaire). However, in the post-
conviction hearing, she testified that she had been raped by her uncle when
she was two or three years old, but that her uncle had not been prosecuted.
P.C.R. Tr. at 20. She also testified that she still thinks about the
rape, and, although she did not reveal the crime on her juror questionnaire
because she has "tried to forget it," she thought about her experience
during the trial. Id. at 20-22. A different juror in this case was struck
for cause when she indicated that she could not be a fair juror because of
a childhood experience. She did not reveal what that experience was, but
the trial court removed that juror from the panel. Trial Record at 967,
1007.
Judge Gifford, who presided over both the original trial and the post-
conviction proceeding, noted that the other juror's removal indicated that,
had Gunn revealed that she had been raped, either the State or the defense
might have determined that her experiences would impact her verdict or
recommendation. Appellant's App. at 9. The defendant's trial counsel
testified at the post-conviction hearing that, had a juror provided
information that she had been raped by a relative, he would have:
Questioned her on it and asked her if she could sit on this case where
there were allegations of a sexual assault, at least circumstantially,
against [the victim] and asked her if she really felt she could be
fair in this case because of her prior victimization in a sexual
assault case and almost certainly stricken her peremptorily if not for
cause.
P.C.R. Tr. at 647.
The State raises Williams v. State, 417 N.E.2d 328 (Ind. 1981) in
support of its argument that Gunn's rape was too remote and attenuated from
the crimes charged and evidence presented at trial to establish that Gunn
might be biased. In Williams, we affirmed the decision of the trial court
to reject the defense's motion to strike a juror for cause where the juror
had been a victim of a burglary or a robbery, and the defendant was on
trial for burglary and robbery. In the present case, while the defendant's
convictions did not include rape, evidence was presented at his trial that
one of the victims was found laying partially undressed in a position
highly suggestive of sexual assault, and a semen-stained washcloth was
found near her body. Noting that the State did not charge that the victim
was murdered in the course of a sexual assault, the post-conviction court
nevertheless found that "a reasonable inference of sexual activity could be
drawn from the evidence." Appellant's App. at 811. The court also found
that Gunn's failure to disclose that she had been a victim of a crime
"deprived the state and the Defendant of the opportunity to determine upon
voir dire whether these experiences would have impacted upon her verdict or
recommendation." Id. The post-conviction court's findings on this issue
are not clearly erroneous.
Gunn's Views on the Death Penalty
The State contends that the post-conviction court erroneously found
that Gunn would automatically vote for death for an intentional murder and
thus "was neither competent nor qualified to serve on this capital jury."
Appellant's App. at 810. The State argues that there is no evidence that
Gunn was an "automatic death penalty" juror. [2]
In her pre-trial questionnaires, Gunn disclosed that if she "believed
that a person was guilty of the intentional murder of another person," she
would automatically vote for the death penalty. Petitioner's Exhibit 11(A)
(emphasis in original). In response to another question, however, she
indicated her belief that the death penalty should not be "mandatory for
any particular type of crime." Id. Thereafter, during voir dire, the
trial judge asked whether any of the prospective jurors believed that
everyone who commits murder should get the death penalty. Trial Record at
863-64. Several jurors indicated that they did, but Gunn was not among
them. Id. at 864-65. Gunn was not questioned during voir dire regarding
her views of the death penalty. At the post-conviction hearing, Gunn
testified that she believed her brother, after being convicted of killing
two women in California, deserved the death penalty because, "I believe if
you kill somebody, you should get the death penalty." P.C.R. Tr. at 18.
Had Gunn's opinion been disclosed during voir dire, the defense would
have been entitled to remove her for cause. The requirement of jury
impartiality embodied in the Due Process Clause of the Fourteenth Amendment
permits a capital defendant to challenge for cause any prospective juror
who would vote to impose death automatically upon a finding of guilt.
Morgan v. Illinois, 504 U.S. 719, 727, 112 S.Ct. 2222, 2229-30, 119
L.Ed.2d 492, 501-02 (1992). "If even one [partial] juror is empanelled and
the death sentence is imposed, the State is disentitled to execute the
sentence." Id. at 729, 112 S.Ct. at 2230, 119 L.Ed.2d at 503. The post-
conviction court found that a challenge to the juror in the present case
would have been sustained.
We are troubled, however, by the fact that the defendant's trial
counsel failed to question Gunn on voir dire notwithstanding her pre-trial
questionnaire answer that she would automatically vote for the death
penalty for a defendant found guilty of an intentional murder. Such
inquiry would likely have elicited Gunn's death penalty predisposition and
permitted her timely excusal. Among the defendant's post-conviction
claims, he asserted ineffective assistance of trial counsel in part for
failing to adequately question and challenge juror Gunn for cause. The
post-conviction court did not address this claim, finding that "[w]hile it
is clear that the court would have sustained a challenge for cause of this
juror, the misconduct of the juror supercedes any alleged deficient
performance by trial counsel." Appellant's App. at 836. To the extent
that defense counsel failed to assert a challenge for cause, under the
circumstances presented, this omission constituted substandard performance
with resulting prejudice. We conclude that, regardless whether analyzed as
juror misconduct or as ineffective assistance of counsel, the result is the
same.
Evaluation and Conclusion
In deciding to reverse the defendant's sentence and convictions, the
post-conviction court cumulatively addressed the individual claims of juror
misconduct:
The combination of these omissions and false statements cannot be
ignored. Having found that gross juror misconduct has been
established in this cause, the court further finds that the misconduct
by Ms. Gunn probably harmed the defendant. Jackie Gunn's strong views
concerning the death penalty, combined with her own alleged sexual
abuse, resulted in a verdict and sentencing recommendation that
probably harmed the defendant by denying him a fair trial. Mr. Dye's
convictions and sentence must be reversed due to gross juror
misconduct.
Appellant's App. at 811.
In our review of the State's claim that the post-conviction court's
findings are clearly erroneous, we are cognizant that Judge Gifford, who
presided in both the original trial and the post-conviction hearing, was in
an exceptional position to assess not only the weight and credibility of
the factual evidence, but also the probable impact of the alleged juror
misconduct, including whether it deprived the defendant of a fair trial.
Because the court's findings are mixed questions of law and fact, we
consider only the evidence that supports the judgment and the reasonable
inferences to be drawn from the evidence. State v. Holmes, 728 N.E.2d 164,
168-69 (Ind. 2000); Spranger, 650 N.E.2d at 1119. Upon this review, we do
not find clear error.
The State also argues that the post-conviction court's decision "will
open the floodgates to numerous juror investigations after sound verdicts
have been rendered" and warns that the corollary response of the State will
be "to conduct extensive pre-trial investigations of the venire to protect
convictions and sentences." Br. of Appellant at 10. We agree that these
consequences are extremely undesirable. This is so not only because of the
societal interest in the finality of criminal proceedings but also because
of our interest in assuring the safety and personal privacy of citizens who
serve as jurors. Post-trial investigations of jurors should be the
exception, not the rule. In the absence of manifest indications of
material discrepancies appearing in the record, jurors should not be
subjected to post-conviction investigation on the mere possibility that one
or more of their questionnaire or voir dire responses may have been
inaccurate. In the present case, however, the probability of Gunn's
misconduct was apparent from inconsistencies between her voir dire answers
and her questionnaire responses. These facial variances justified further
investigation. We cannot permit our interests in finality and privacy to
totally foreclose the presentation of such resulting evidence to
demonstrate that gross juror misconduct undermined the defendant's right to
a fair trial.
On cross-appeal, the defendant asserts error by the post-conviction
court regarding: (1) whether the State suppressed material evidence, (2)
whether the death-penalty information was defective, (3) whether Dye
received ineffective assistance of trial counsel, (4) whether he received
ineffective assistance of appellate counsel, and (5) whether the State
interfered with trial counsel's representation. Br. of Appellee at 11.
Because we are affirming the post-conviction court's judgment reversing the
defendant's sentence and convictions on grounds of juror misconduct, these
issues are moot.
We affirm the judgment of the post-conviction court.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] When defense counsel asked the potential jurors in voir dire
whether any of them had ever had "any contact with the prison system as a
worker, or even somebody in your family that's been in prison?" Gunn
indicated that she had. Trial Record at 1639-40. When her turn came, the
following exchange occurred:
Gunn: I had a brother in prison, and he's deceased now.
Attorney: Here in Indiana?
Gunn: No, California.
Attorney: Did you ever go visit him?
Gunn: No.
Id. at 1640.
[2] We considered an issue very similar to this in the defendant's
direct appeal. Dye v. State, 717 N.E.2d 5 (Ind. 1999). In his direct
appeal, the defendant argued that the trial court erred when it failed to
excuse two prospective jurors for cause who, at one point, expressed the
view that they would automatically vote to impose the death penalty in the
case of a knowing or intentional murder, but reconsidered their opinions
upon further questioning. We held that the Fourteenth Amendment had not
been violated because the trial judge inquired about the possibility that
those jurors would vote automatically to impose the death penalty, and
defense counsel was afforded the same opportunity to inquire. Id. at 18.
Questioning revealed that those jurors both understood that their absolute
views were contrary to law, and agreed to follow the law and their oath.
Id. The trial court did not excuse them for cause, but both were later
excused through the use of peremptory challenges.