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