ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Karen M. Freeman-Wilson
Public Defender of Indiana Attorney General of
Indiana
Chris Hitz-Bradley Janet L. Parsanko
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
In The
INDIANA SUPREME COURT
STEVEN ARMSTRONG ) Supreme Court No.
Defendant-Appellant, ) 45S03-0010-PC-564
)
v. ) Court of Appeals No.
) 45A03-0001-PC-28
STATE OF INDIANA )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence D. Murray, Judge[1]
Cause No. 45G02-9403-CF-60
________________________________________________
On Petition to Transfer
May 21, 2001
DICKSON, Justice
Steven Armstrong's murder conviction was affirmed in 1996 by the
Court of Appeals in a memorandum decision. When he filed a petition for
post-conviction relief in 1999, the post-conviction court applied the
doctrine of laches to bar consideration of his petition. The Court of
Appeals affirmed in a memorandum decision. We granted transfer, and we now
consider Armstrong's appeal anew and hold that laches does not bar
consideration of his petition for post-conviction relief.
The equitable doctrine of laches operates to bar consideration of the
merits of a claim or right of one who has neglected for an unreasonable
time, under circumstances permitting due diligence, to do what in law
should have been done. Twyman v. State, 459 N.E.2d 705, 712 (Ind. 1984).
For laches to apply, the State must prove by a preponderance of the
evidence that the petitioner unreasonably delayed in seeking relief and
that the State is prejudiced by the delay. Williams v. State, 716 N.E.2d
897, 901 (Ind. 1999). For post-conviction laches purposes, prejudice
exists when the unreasonable delay operates to materially diminish a
reasonable likelihood of successful re-prosecution. Stewart v. State, 548
N.E.2d 1171, 1176 (Ind. 1990).
Because the State had the burden of proving laches as an affirmative
defense, Armstrong is not appealing from a negative judgment, and the
applicable standard of review requires that we affirm unless we find that
the judgment was clearly erroneous. Ind.Trial Rule 52(A); Spranger v.
State, 650 N.E.2d 1117, 1119 (Ind. 1995). This is a review for sufficiency
of evidence. Estate of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind.
1994). Without reweighing the evidence or assessing the credibility of
witnesses but rather looking only to the evidence and reasonable inferences
favorable to the judgment, we will affirm if there is probative evidence to
support the post-conviction court's judgment. Williams, 716 N.E.2d at 901;
Lacy v. State, 491 N.E.2d 520, 521 (Ind. 1986).
Armstrong does not challenge the finding that the three-year delay
between the conclusion of his direct appeal and the filing of his petition
for post-conviction relief was unreasonable. He contends, however, that
the post-conviction evidence was insufficient to prove resulting prejudice
to the State. The State's laches claim is based upon its contention that
it has suffered prejudice from the delay "because the State's eyewitness to
the murder, Anthony Moton, is now outside of the jurisdiction," Br. of
Appellee at 5-6, and that "[w]ithout the live testimony of Moton, the
State's ability to successfully present a case against Armstrong is
materially diminished." Id. at 8. The State also argues that other
witnesses, William Riley and Claretha Smith, would not likely now provide
testimony favorable to the State.
The judgment of the post-conviction court was based on the following
findings:
Regarding the prejudice to the State, while Mr. Riley is
available as a witness his credibility is tainted from the get-go.
He's got a deal that was offered to him, so his testimony is purchased
by the state. The gun and drug charges from the Feds would not be
admissible as an Ashton offense. And it would appear that the pending
case also would not be admissible as a drug charge – not pending, the
one that he is currently serving time on. However, because he is
serving time currently, it may well be that he is not cooperative with
the state, although that's speculation on my part. It's not certainly
– not something that would surprise me.
That leaves Ms. Smith, who the state has located and is
available to testify, but we are talking about a substantially weaker
case. It is foreseeable in a retrial that the defendant could take
the stand and accuse Riley of the shooting and could attempt to
implicate her in it as well – as his date as his girlfriend at the
time – although not for a lengthy period of time.
I guess the strongest witness from what I've heard here today in
the previous trial was the reluctant witness. There isn't anything
that increases credibility other than having a friend implicate you
under duress. I think that it would be extremely difficult for the
state to get a reluctant witness back from out of state. It's
difficult to get a cooperating witness back oftentimes from out of
state. There's a lot of paperwork that has to be completed. There's
a hearing that has to occur in the other jurisdiction. The financial
aspects of it aside, just the logistics of it is often difficult to
achieve when you have someone who is reluctant to come back in the
first place. It can be virtually impossible to accomplish that.
So based on that, I'm going to find that the case that the state
is left with as a result of this missing witness is a substantially
weaker case than originally presented, and therefore I'm going to find
that it would be extremely difficult for the state to successfully
retry the defendant, and at this point recommend to the presiding
judge that the petition for postconviction relief be barred by laches.
Record at 103-05.
Armstrong argues that the post conviction court erred in finding that
the State would be prejudiced in any retrial of the petitioner due to the
fact that one of the State’s original eyewitnesses now lives in Georgia.
The State argues that it would be prejudiced because the witness now in
Georgia was the State’s most credible witness; that he would probably not
be willing to travel to Indiana to testify; that the legal and financial
difficulties in bringing a reluctant witness back to testify are
significant; and that the remaining witnesses may be reluctant to testify
under the changed circumstances.
Reviewing the evidence and inferences favorable to the judgment, we
conclude that the State’s most valuable witness, Anthony Moton, currently
resides in Georgia. Moton, a friend of Armstrong, testified reluctantly in
the first trial and is unlikely to willingly return to Indiana and testify
again. It would be expensive, time-consuming, and logistically difficult
for the State to bring him back to testify in Indiana. We find no
indication, however, that the State attempted to determine whether Moton
would voluntarily return and testify. We also note that both Georgia and
Indiana have adopted the Uniform Act to Secure the Attendance of Witnesses
from Without a State in Criminal Proceedings. See Ga. Code Ann. §§ 24-10-
90 to -97 (Harrison 1998); Ind.Code §§ 35-37-5-1 to -9 (1998). A second
eyewitness, William Edward Riley, is available and is currently serving a
sixty year prison term in Indiana for a conviction unrelated to
petitioner's case. In Armstrong's trial, Riley was given immunity and the
state dismissed pending criminal charges in exchange for his cooperation at
petitioner's trial. The State now has nothing further to offer Riley for
his cooperation. The State also argues that Riley's testimony is not as
reliable as Moton's because Armstrong defended on the theory that Riley,
not Armstrong, was the actual shooter. A third eyewitness, Claretha
Takesia Smith, is available. She was dating Riley when the offense was
committed, but stopped dating him because of the shooting and has not seen
him since. The State contends that Smith will likely not cooperate as she
no longer has a motive to protect Riley from Armstrong's attempt to shift
suspicion. The State's argument is thus that, as to Riley and Smith, it
should be inferred from the changed circumstances that they are likely to
testify differently than they did at the original trial. The State did not
present evidence establishing any change in their versions, and we are
reluctant to find these inferences reasonable. To conclude otherwise would
potentially elevate the availability of laches to bar consideration of most
petitions for post-conviction relief in prosecutions originally based
substantially upon testimony obtained pursuant to plea agreement.
Even if the State had presented evidence that one or more of the
witnesses would now testify contrary to their trial testimony and adverse
to the prosecution, we seriously question whether such circumstances should
properly constitute the element of prejudice required for the laches
defense. While this issue is not directly before us, we have observed,
albeit in a different context, that the element of prejudice is not
necessarily shown by an unfavorable result but rather is determined by
whether the prejudice-claiming party's "opportunity for a fair trial was
detrimentally affected by the denial of procedural opportunities for the
ascertainment of truth to which he otherwise would have been entitled."
Games v. State, 535 N.E.2d 530, 535-36 (Ind. 1989).
Even if we were to consider the extent that there may exist a
diminished likelihood of successful reprosecution by reason of Moton's
location and a change in the motivations of Riley and Smith to testify
consistent with their prior testimony, we find no evidence that these
factors did not also exist when the direct appeal concluded. Thus, the
alleged prejudice claimed by the State to support its defense of laches is
neither attributable to nor materially enhanced by Armstrong's three-year
delay in filing his petition for post-conviction relief.
Notwithstanding the evidence favorable to the judgment of the post-
conviction court, and all resulting reasonable inferences, we conclude that
the judgment is not supported by sufficient probative evidence. The post-
conviction court erred in applying the State's defense of laches to bar
consideration of the claims presented in Armstrong's petition. We reverse
the judgment of the post-conviction court and remand this cause for further
proceedings with respect to the petition for post-conviction relief.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Kathleen A. Sullivan, Magistrate, conducted the hearing.