Daniels v. State

ATTORNEYS FOR APPELLANT

Mark Earnest
Eric K. Koselke
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

MICHAEL WILLIAM DANIELS, )
)
Appellant (Defendant Below), )
)
v. )
) Cause No. 49S00-9411-SD-1079
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable James Detamore, Special Judge

Cause No. CR78-47D

ON APPEAL FROM THE DENIAL OF SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF

January 12, 2001

SHEPARD, Chief Justice.

Michael William Daniels was convicted of felony murder, attempted
robbery, and four counts of robbery arising out of a crime spree in
Indianapolis on the evening of January 16, 1978. He was sentenced to death
on the felony murder count. In this appeal from the denial of his
successive petition for post-conviction relief, Daniels contends that (1)
his trial counsel were ineffective; (2) the attorney who filed his motion
to correct error was ineffective; and (3) counsel from the first post-
conviction proceeding was ineffective. We affirm the denial of post-
conviction relief.

Factual and Procedural Background

On January 16, 1978, Daniels and two other individuals committed a
series of crimes. Daniels v. State, 453 N.E.2d 160, 164 (Ind. 1983). The
three men drove around residential neighborhoods in Indianapolis and
stopped at four different residences where they saw people outside their
homes. Id.

Shortly after 8 p.m., Steve McCloskey was shoveling snow in his
driveway at East 52nd Place in Indianapolis when he heard a gunshot. (T.R.
at 756, 760-61.) His mother came out of the house carrying a broom. (T.R.
at 761.) Two men then approached McCloskey and said, “This is a stick-up.
Don’t you move. I have a gun on you.” (T.R. at 762.) Daniels, the
gunman, ordered McCloskey to drop his snow shovel and hand over his wallet,
which McCloskey did. (T.R. at 764, 766.) McCloskey’s mother tried to
knock the gun out of Daniels’ hand with her broom, and Daniels hit the
woman on the jaw. (T.R. at 766.) Both intruders then fled. (T.R. at
767.)

At the second residence, fifteen-year-old Timothy Streett and his
father Allen were shoveling snow at approximately 9:30 p.m. (T.R. at 791-
92, 812.) Two men came up behind Timothy and one said, “Don’t move and no
one will get hurt.” (T.R. at 799.) Timothy turned and saw Daniels waving
a gun at him. (T.R. at 799-800.) Daniels ordered Timothy and his father
to hand over their wallets. (T.R. at 800.) When the father responded that
he did not have his wallet with him, Daniels shot and killed him. (T.R. at
800, 817.) Timothy handed his wallet to the other intruder, who then fled
with Daniels. (T.R. at 800-01.)

The perpetrators then accosted Jack Beem and his daughter Mary Ann.
Jack had picked Mary Ann up from work at about 10:10 p.m. (T.R. at 827-
29.) As they arrived at home and got out of their car, Jack heard
footsteps and a voice crying out, “Don’t move, don’t move, this is a hold-
up.” (T.R. at 829.) Daniels took Jack’s wallet at gunpoint and a second
man took Mary Ann’s purse. (T.R. at 829-31, 847.)

Finally, at a fourth residence, Dr. Robert Barnett took his dog
outside and began to shovel snow at about 11 p.m. (T.R. at 863-64.)
Daniels, who was holding a gun, ordered Barnett to freeze. (T.R. at 868,
873.) Barnett turned and walked toward the house and Daniels shot him
once, then twice more after Barnett started swinging his snow shovel at
Daniels. (T.R. at 869-70.) Barnett survived.

Each of the six surviving victims testified at Daniels’ trial. When
the prosecutor asked Steve McCloskey if there was any question in his mind
that Daniels was the perpetrator, he responded, “No question. I see his
face every night when I go to bed.” (T.R. at 767.) McCloskey’s mother,
whose vision was poor, was unable to confirm or rebut her son’s
identification. (T.R. at 788.)

On cross-examination, defense counsel questioned McCloskey in detail
about his original description to the police of the perpetrators.
McCloskey described the gunman to police as a light-complectioned fifteen-
to sixteen-year-old African-American, around 5’8” tall and 150 pounds,
wearing a stocking cap.[1] (T.R. at 771, 776-77.) Counsel pointed out
that, although McCloskey cited the gunman’s hazel eyes and separated front
teeth as particularly distinctive features, McCloskey omitted these details
from that original description. (T.R. at 781.) Counsel then obtained
McCloskey’s admission that, at an earlier trial,[2] he had described the
gunman as 4’8” tall. McCloskey explained that he meant to say 5’8”. (T.R.
at 772).

The second robbery victim, Timothy Streett, testified at trial that he
saw “Michael Daniels, the man right there” shoot and kill his father.
(T.R. at 803.) In lineups a few weeks after the crime, Timothy identified
both Daniels and Paul Rowley, who resembled Daniels, as subjects he
“suspect[ed] to be involved in [his] particular incident.” (S.P-C.R. at
2963-66.) When asked on cross-examination if he had previously identified
Rowley “as a person involved in [the crime] in any way,” Timothy responded,
“I never positively identified anybody until I identified Mr. Daniels at
the line-up. I said that there was a possibility, but I never positively
did it.” (T.R. at 810.)

Jack and Mary Ann Beem were also asked at trial if they could identify
Daniels. Jack testified that “[t]here’s someone in this court that
resembles him very much. A positive identification, I would not say.”
(T.R. at 831.) However, when Mary Ann was asked if there was any question
in her mind that Daniels was the man who had robbed her at gunpoint, she
responded, “No, there is not.” (T.R. at 856.) On cross-examination,
defense counsel challenged Mary Ann’s identification, because she had
originally described the gunman as tall, and McCloskey had described the
gunman as standing 5’8”. (T.R. at 851.) Mary Ann responded that to her,
5’8” was tall. (Id.) Counsel then questioned Mary Ann’s description of
the gunman’s cap, because Mary Ann described it as having no bill and
Timothy Streett had described the shooter as wearing a cap with a small
bill. (T.R. at 809, 852.) Defense counsel also elicited testimony that
during at least part of the robbery, Mary Ann was farther away from the
gunman than Jack was, and pointed out that Jack could not make a positive
identification. (T.R. at 853-55.)

Robert Barnett was the final victim to testify. When reminded of the
“seriousness of the charges” in the case and asked if there was any doubt
Daniels was the person who shot him, Barnett responded, “I have no doubts.
I know that he’s the one.” (T.R. at 899.) On cross-examination, defense
counsel pointed out that Barnett made only a tentative identification when
he first viewed an array of twelve to twenty mug shots several weeks after
the incident. (T.R. at 883-84, 890.) Counsel also questioned Barnett in
detail about how similar the photographs were, and whether anyone had
suggested which photograph Barnett should identify as that of the
perpetrator. (T.R. at 890-92.)

In addition to these victim eyewitness identifications, the State
presented the testimony of Kevin Edmonds, who admitted that he accompanied
Daniels on all four robberies. Edmonds testified that he, Donald Cox, and
Daniels were together on the evening of January 16, 1978. (T.R. at 967-
69.) Cox drove the trio to his house, went inside, and came back to the
car with a gun. (T.R. at 970.) Cox handed the gun to Daniels, who
responded, “Let’s make some money.” (Id.) Edmonds then recounted details
of the crime spree that were consistent with the victims’ accounts. (T.R.
at 970-80.)

Edmonds testified that in each of the four robberies Daniels was the
only one armed with a gun. (Id.) Edmonds stated that Daniels had the gun
stuck down in his pants “[t]hrough a belt or something.” (T.R. at 971.)
As the two men approached McCloskey’s home, Daniels tried to pull the gun
out of his pants. (Id.) He instead pulled the gun’s trigger and the
bullet grazed his leg. (Id.) (McCloskey testified he heard a gunshot just
before he was accosted. (T.R. at 756, 760-61.)) A later witness
established that when Daniels was arrested eleven days after the series of
crimes, he had a small abrasion on his left femur or thigh about three-
quarters of an inch long, “like a scab had formed over it.” (T.R. at
1065.)

Edmonds confessed to police on February 6, 1978, and was later
released on bond. (T.R. at 986-87.) He entered into an interim plea
agreement with the State on December 29, 1978. (T.R. at 990-91.) The
agreement, which was admitted into evidence at Daniels’ trial, provided
that Edmonds would “testify credibly” for the State at the trials of Cox
and Daniels. (Id.) In exchange for this testimony, the State agreed to
forego prosecuting Edmonds for felony murder. (Id.)

Daniels’ counsel cross-examined Edmonds at length about his release on
a $350 bond despite a pending murder charge, and about his plea agreement
with the State. (T.R. at 1002-11.) Counsel also asked about a statement
Edmonds made to the police, before he named Daniels as the shooter,
implicating Paul Rowley in the crimes. (T.R. at 1005-06.) Edmonds
explained that Rowley “was pointing a finger at me, saying that I had did
it, and I said, ‘How do you know [Rowley] didn’t do it, since he knows so
much about it?’” (T.R. at 1038.) Edmonds also testified that, after the
robberies, Daniels gave the gun back to Cox who in turn gave it to Rowley.
(T.R. at 1037.)

The jury found Daniels guilty on all six counts. It recommended a
death sentence for the felony murder count, finding that the State proved
an aggravating circumstance (that Daniels intentionally killed while
committing the crime of robbery) and that any mitigating circumstances were
outweighed by that aggravating circumstance. (T.R. at 302, 305.) The
trial court imposed a death sentence. (T.R. at 320.) This Court affirmed
the convictions and sentence on direct appeal. Daniels, 453 N.E.2d at 175.

In February 1984 Daniels filed a petition for post-conviction relief
that included several claims, including that trial counsel rendered
ineffective assistance in both the guilt and penalty phases of the trial.
Daniels v. State, 528 N.E.2d 775 (Ind. 1988). The post-conviction court
denied relief, and this Court affirmed that denial. Id. at 776, 784.
Daniels petitioned the U.S. Supreme Court for certiorari, and the Supreme
Court remanded the case for reconsideration in light of its then-recent
decision in South Carolina v. Gathers, 490 U.S. 805 (1989). Daniels v.
Indiana, 491 U.S. 902 (1989). On remand, we held that the Gathers rule did
not apply retroactively in collateral attacks on pre-Gathers proceedings
and affirmed the denial of post-conviction relief. Daniels v. State, 561
N.E.2d 487, 492 (Ind. 1990). In 1991, Daniels filed a pro se petition for
post-conviction relief that was denied. (S.P-C.R. at 106-07.) Another pro
se petition was dismissed in 1993. (S.P-C.R. at 114-23, 146-47.)

On November 22, 1993, assisted by appointed counsel, Daniels filed the
petition at issue in this appeal. (S.P-C.R. at 164, 175.) Daniels
contended that the trial court was bound by a 1978 plea agreement that it
signed but then rejected on the record at the sentencing hearing a month
later. State v. Daniels, 680 N.E.2d 829, 831 (Ind. 1997). The post-
conviction court granted summary judgment in favor of Daniels on this
claim, and the State appealed. Id. This Court reversed the grant of
summary judgment and remanded the case to the post-conviction court to
address the remaining issues in Daniels’ petition. Id. at 885. After a
hearing, the post-conviction court denied relief, and this appeal
ensued.[3] (S.P-C.R. at 56, 94.)

I. Ineffective Assistance of Trial Counsel

Daniels’ principal claim in this appeal is that his trial counsel
rendered ineffective assistance in both the guilt and penalty phases of his
trial. (Appellant’s Br. at 1.) Daniels’ guilt phase contention focuses on
trial counsel’s failure to use information suggesting that Paul Rowley may
have been one of the perpetrators, and perhaps the shooter. Id. His
penalty phase contentions are based on the alleged failure of trial counsel
to investigate and present mitigating evidence as well as the failure to
argue that the death penalty was inappropriate because the possibility of
Rowley’s involvement raised a “residual doubt” that Daniels was the
shooter. (Id. at 1, 62.)

A. Guilt Phase. The State’s theory at trial was that Daniels,
Edmonds, and Cox committed the robberies. Daniels now contends that trial
counsel failed to use a wealth of available information suggesting that
Rowley, not Daniels, was the gunman.[4] Daniels points to a number of
specifics. Rowley and Cox were charged with a robbery involving a similar
modus operandi, committed four days before these offenses.[5] Timothy
Streett initially identified both Rowley and Daniels as possible
participants. Mary Ann Beem identified Daniels in a line-up only after his
picture had appeared in the newspaper. (S.P-C.R. at 2653, p. 15.) She
later called a deputy prosecutor and stated that she was “not real sure
anymore” about the identification, but nonetheless confidently identified
Daniels at trial. (S.P-C.R. at 2647, p. 25, ex. 6.) As already explained,
before Edmonds implicated Daniels, he told the police that Rowley’s
knowledge of the robberies suggested that Rowley participated in them.

In a polygraph interview of Rowley two weeks after the crimes, the
examiner detected “deceptive responses.” According to the polygraph
report, Rowley subsequently admitted that he was involved in the first
robbery. (T.R. at 367-1 through 367-7.) However, it is unclear precisely
what this confession means and the audiotape of the interview no longer
exists.[6]

Rowley was initially charged with Allen Streett’s murder. (S.P-C.R.
at 2902.) According to the probable cause affidavit, this charge was based
on Timothy Streett’s identification of Rowley “as being with the person”
who shot his father. (S.P-C.R. at 2903.) The record does not reveal why
charges against Rowley were ultimately dropped. A warrant was issued for a
search of Rowley’s home for the gun used in the Streett murder. (S.P-C.R.
at 1637-38.) Although no gun was recovered, shell casings fired from the
same gun as the shell casings found at the murder scene and at the scene of
the fourth robbery were found.[7] (S.P-C.R. at 1514.)

Daniels contends that his trial counsel were deficient for failing to
use all of this information at trial because, but for these omissions,
there is a reasonable possibility he would have been acquitted. The State
responds that “[a]lthough a more vigorous defense might have persuaded the
jury that one or another of the victim’s identifications was not
sufficiently positive to be reliable, it is simply not credible that they
were all wrong.” (Appellee’s Br. at 8.)

The State correctly points out that the evidence relating to the four
robberies is intertwined. The common thread is the testimony of Edmonds.
If the jury believed Edmonds, all of the convictions, including
identification of Daniels as the shooter, follow.[8]

Moreover, the jury was presented with other reliable evidence
sufficient to find that Daniels was the shooter. Steve McCloskey, the
first victim, identified Daniels as the man who took his wallet and struck
his mother. McCloskey also testified that he heard a gunshot at about the
time that Edmonds said Daniels shot himself in the leg. Timothy Streett,
the victim of the second robbery, testified that Daniels shot his father.

Mary Ann Beem identified Daniels as the gunman who robbed both her and
her father. Jack Beem found Timothy Streett’s wallet when he searched for
his own wallet at his home where this third robbery occurred. Dr. Barnett,
the victim of the fourth robbery, also identified Daniels as the person who
shot him. Shell casings found at the Barnett and Streett crime scenes were
fired from the same gun.

The successive post-conviction court was critical of trial counsel’s
failure to make use of the evidence relating to Rowley, but concluded:
48. Although trial counsel was not as thorough nor effective in
hindsight as they should have been, and in several areas they did a
deplorable job, it is the Court’s finding that with the remaining body
of evidence that the State presented, trial counsel’s representation
did not fall below the norms for trial counsel at the time, so as to
have made the jury’s finding of guilty unreliable.
49. Although the Petitioner has shown that trial counsel’s performance
was lacking and ineffective, he has not carried his burden that such
performance prejudiced the defense to the extent that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.

(S.P-C.R. at 85-86.) Thus, the post-conviction court rejected Daniels’
guilt phase contentions on their merits. It went on to hold, however, that
Daniels’ claim of trial counsel ineffectiveness was unavailable in this
successive post-conviction petition because it was raised and adjudicated
in his first petition for post-conviction relief.[9] (Id. at 89.) The
court was correct to so hold.

B. Residual Doubt at the Penalty Phase. All of the robbery victims
testified that they saw two robbers and only one wielded a gun. (T.R. at
767, 799, 830, 847, 871.) Edmonds testified that he was with Daniels, who
carried the gun throughout the evening, while Cox remained in the car.
(T.R. at 970-79.) The State’s theory of the case was that Daniels,
Edmonds, and Cox were the only participants in the crime spree. Daniels
argues that the cited evidence suggesting Rowley’s involvement created at
least a “residual doubt” as to whether Daniels was the shooter, and that
Daniels’ trial counsel were ineffective for failing to make a penalty phase
argument based on residual doubt. (Appellant’s Br. at 59.)

As we recently observed in Miller v. State, 702 N.E.2d 1053, 1069-70
(Ind. 1998), “counsel ought have no obligation to argue to the jury that
its just-returned unanimous determination of guilt ought be revisited . . .
. The failure to argue ‘residual doubt’ does not constitute ineffective
assistance of counsel.” Therefore, the failure here, if any, was in
omitting to present, in the guilt phase, the evidence suggesting that
Daniels was not the shooter. As noted above, this claim was raised in the
first post-conviction proceeding and is, therefore, foreclosed under res
judicata.

C. Res Judicata and Waiver. This case thus presents the dilemma
between the dual goals of ending litigation and ensuring only proper
imposition of the death penalty. The errors claimed here, unlike those
asserted in Daniels’ earlier appeals, deal with whether Daniels was the
shooter, and thus whether he was properly found eligible for the death
penalty.

The items cited by Daniels establish neither his innocence nor his
ineligibility for the death penalty. At most, they individually and
collectively present inconsistencies in the accounts of some of the
testifying victims, and evidence potentially implicating Rowley as a co-
perpetrator, and as such may have been worthy of pursuit by the defense.
The question is whether these modest inconsistencies and the hints
concerning Rowley are so weighty that they warrant vitiating a generation’s
worth of fact-finding and litigation that points in the opposite direction.
The events are now more than twenty years in the past. Rowley is dead.
(S.P-C.R. at 2458.) Edmonds did not testify at the post-conviction hearing
and the record does not indicate his current availability. Apart from the
usual considerations of cost and court resources, requiring victims and
their families to revisit these awful crimes is itself no small matter.

Perhaps most significantly, all of these matters were known or
knowable both at trial and at the time of Daniels’ first post-conviction
proceeding. Therefore, the post-conviction court correctly held that
Daniels’ new claims of trial counsel ineffectiveness were barred by res
judicata and waiver. As this Court observed in our last opinion in this
case, “[t]he Indiana Rules of Procedure for Post-Conviction Remedies
require that all grounds for relief available to a petition[er] under the
post-conviction rules must be raised in the original petition.” State v.
Daniels, 680 N.E.2d 829, 835 n.10 (Ind. 1997) (citing Ind. Post-Conviction
Rule 1(8)).
[T]he issue of effectiveness of both Daniels’ trial and appellate
counsel was extensively litigated and appealed in his first
postconviction proceeding nine years ago. Daniels v. State, 528
N.E.2d 775, 779-81 (Ind. 1988). The issues raised by Daniels in this
appeal were on the face of the record from the time of his trial.
Accordingly, consideration of additional issues bearing on trial or
appellate counsel’s ineffectiveness that were available at that time
is precluded.

Id. See also Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989) (“If a
convicted person wishes to challenge the performance of his defense counsel
at a trial upon criminal charges, he may do so. If such challenge is
included in the second petition for post-conviction relief, the claim then
is properly subject to waiver or res judicata.”); Resnover v. State, 547
N.E.2d 814, 816 (Ind. 1989), cert. denied, 498 U.S. 881 (1990)(In his first
petition for post-conviction relief, “Resnover did raise the issue of
ineffectiveness of counsel who handled his trial and his direct appeal and
the issue was decided adversely to his petition. He was not entitled to be
heard on this issue in this second petition . . . .”).

We must mean what we say in our rules, that a defendant is entitled to
one post-conviction hearing and one post-conviction opportunity to raise
the issue of ineffectiveness of trial counsel in the absence of newly
discovered evidence or a Brady violation. Viewed in hindsight, any trial
could have been handled differently. As time passes it becomes increasingly
speculative why a given strategy was or was not employed.

Although the evidence related to Rowley might have helped Daniels’
defense, none of these lines of inquiry except for Timothy Streett’s
identification were addressed either at trial or as examples of ineffective
trial assistance at the first post-conviction proceeding. This did reflect
upon the level of effort by trial counsel, but there are many other
possible reasons why these matters might have been of no value to the
defense. One obvious example is that Rowley, against whom the murder
charge was not pursued, may have had an airtight alibi. We recognize that
there is nothing in the record to support this conjecture, but Daniels
likewise offers largely speculation that Rowley was a participant. We
mention it only to illustrate the difficulty in evaluating, two decades
later, the reasons for and effects of available lines of inquiry that were
not pursued.

In sum, we reaffirm the sound and long-established principle that
considerations of finality preclude re-litigation of previously available
contentions in successive post-conviction proceedings.

D. The Claims Were Available in Prior Proceedings. Daniels
nevertheless argues that res judicata or waiver should not apply to his
ineffective assistance of counsel claims because the issue raised in this
petition “was not ascertainable or available to him” in his prior petition.
(Appellant’s Br. at 77.) His argument pertains to his personal knowledge
rather than that of his post-conviction attorney.

Daniels further contends that his post-conviction counsel refused his
request to raise other claims of trial and appellate counsel
ineffectiveness. (Appellant’s Br. at 80.) Finally, and in a similar vein,
he asserts that “[a]ny waiver of his right to present a full claim of
ineffective assistance of trial counsel claim was not knowing[ly],
voluntarily and intelligently made on the part of Daniels.” (Appellant’s
Br. at 81.) In support of this argument, he points to two pro se filings
and a brief colloquy between himself and the first post-conviction
court.[10]

A review of those filings and that colloquy does not answer the
question whether the potential involvement of Rowley in these crimes was
among the issues Daniels urged his first post-conviction counsel to pursue.
On the eve of his first post-conviction hearing, Daniels filed a pro se
“Motion to Withdraw Petition of Post Conviction Relief,” which alleged that
he could not get his attorney to investigate “matters concerning this
case,” that he could not convince counsel to “obtain evidence that has been
kept from the defendant’s knowledge for six (6) years,” and that the
evidence requested from his counsel was “listed from 1 to 71” in the motion
to compel discovery filed on June 20, 1978. (P-C.R. at 140.)[11] The list
of seventy-one items, which was compiled by the State, itemized the
materials provided to Daniel’s counsel in partial compliance with Daniels’
previous motion for discovery filed in March 1978. (See T.R. 26-29, 59-
66.) Among the items included in the list were Edmonds’ police statement,
records of seized or recovered property, polygraph reports, criminal
histories, probable cause affidavits, and reports of lineup results. (T.R.
at 62-65.)

The first post-conviction court began the hearing by discussing this
motion with Daniels. Daniels told the court that he “wanted to present
other errors, I have been trying to present them for the past four years,
and I’m constantly getting these excuses from these attorneys . . . .” (P-
C.R. at 350-51.) The post-conviction court asked Daniels the nature of the
evidence he wanted to present, and Daniels mentioned the list of seventy-
one items. (P-C.R. at 352.) The court asked counsel about the evidence he
planned to present, and counsel responded that he had “allegations which go
to just about every phase of the trial from the original charging affidavit
through the sentencing and appeal process.” (P-C.R. at 353.)

The court asked Daniels, “[W]hat is outside the record that you’re
interested in?” (P-C.R. at 354.) Daniels responded that counsel had “more
or less presented the case upon the issues that I wanted to present it,
what the attorneys did not do, more or less ineffectiveness of counsel,
he’s not speaking directly to any Fourth Amendment issue[s] . . . .” (P-
C.R. at 354.) When asked for specific issues, Daniels again mentioned
the Fourth Amendment and further commented “[c]oncerning my arrest,” but
then stated that if he provided more detail he “would be giving the
prosecution an edge, so to speak.” (P-C.R. at 354-55.) The post-
conviction court told Daniels that it wanted to hear
the evidence that’s been prepared and then give you an opportunity to
consult further with [post-conviction counsel] or perhaps even proceed
on your own . . . you will have an opportunity, we don’t necessarily
have to finish this thing today, it can continue until a time when I’m
satisfied that you’ve had every opportunity to present whatever it is
you choose to present, within the constraints and the confines of the
law . . . .

(P-C.R. at 355-56.) Although these statements were made at the beginning
of the post-conviction hearing, which was held over three days during a
four week period, the issue was not revisited.

More than a year later, Daniels filed a pro se “Motion to Waive
Appeal.” (P-C.R. at 343A-C.) The motion asserted that Daniels had been
denied his right to present errors during the post-conviction hearing, and
claimed that Levy
refused to present errors or aid defendant in obtaining documents
necessary for the needed investigation of defendant[’]s cause. (4.)
The acts of all the attorneys has grossly impaired the defendant.
These very acts committed by counsel are designed to actually force
the defendant into circumstances where by the time defendant gets his
investigation under-way whatsoever may surface from said investigation
will be deemed waived by a court of law.

(P-C.R. at 343A-B.)

As the U.S. Supreme Court observed in Taylor v. Illinois,
Although there are basic rights that the attorney cannot waive without
the fully informed and publicly acknowledged consent of the client,
the lawyer has – and must have – full authority to manage the conduct
of the trial. The adversary process could not function effectively if
every tactical decision required client approval.

484 U.S. 400, 417-18 (1988) (footnote omitted). The Court explained that
these “basic rights” include decisions regarding entering a guilty plea,
waiving the right to a jury trial and waiving the right to be present
during trial. Id. at 418 n.24; see also Jones v. Barnes, 463 U.S. 745, 751
(1983) (recognizing that a defendant has “the ultimate authority to make
certain fundamental decisions regarding the case, as to whether to plead
guilty, waive a jury, testify in his or her own behalf, . . . take an
appeal, [and] with some limitations, . . . act as his or her own advocate”)
(citations omitted).

At issue here is counsel’s selection of the issues to be raised in a
post-conviction proceeding, which plainly does not fall in the ambit of
these “basic rights” or “fundamental decisions” that must be made by the
client. Rather, decisions regarding which issues to raise in a post-
conviction petition are more akin to determinations about the issues to be
raised on appeal. In that context, the U.S. Supreme Court has made clear
that appointed counsel on appeal does not have a constitutional duty to
raise every colorable claim requested by the defendant. See Jones, 463
U.S. at 754. Moreover, this Court rejected an argument similar to the one
advanced by Daniels in this appeal in its opinion affirming the denial of
Daniels’ first petition for post-conviction relief, where Daniels requested
that none of the issues raised be considered waived.
In support it is suggested that [Daniels] personally never waived any
issue; rather, his attorneys did so over his objection and he should
not be penalized for his attorneys’ mistakes. The suggested approach
would destroy any concept of finality in the appellate process.
Decisions by counsel as to what issues will be raised, at trial and on
appeal, are binding absent a finding of ineffective assistance.

Daniels, 528 N.E.2d at 783.

In sum, none of Daniels’ claims is predicated on newly discovered
evidence, and no claim of a Brady violation is raised. The first post-
conviction challenge to the adequacy of Daniels’ representation did not
focus on the apparent lack of thoroughness on the part of trial counsel in
pursuing the Rowley-related issues asserted here. Nevertheless, we adhere
to the view that claims of ineffective assistance of counsel, if litigated
at the initial post-conviction proceeding, are barred by the doctrine of
res judicata in successive petitions for post-conviction relief, and any
acts or omissions of trial counsel that were available in the first post-
conviction proceeding but not raised are waived in a successive petition.
This doctrine controls the disposition of this case.
E. Daniels Has Not Presented a Case for an Exemption. We also reject
Daniels’ argument that applying res judicata to his case would constitute a
“manifest injustice,” see Huffman v. State, 643 N.E.2d 899, 901 (Ind.
1994), or that his claims may be raised because they are based on
fundamental error, see, e.g., Barany v. State, 658 N.E.2d 60, 64 (Ind.
1995). We do not agree with Daniels’ contention that he “has presented
solid evidence that someone other than him may have committed the crimes
for which he now faces execution.” (Appellant’s Br. at 80-81.) If that
were the case, this Court could elect to address Daniels’ claims on their
merits rather than relying on procedural barriers such as waiver and res
judicata. Cf. Huffman, 643 N.E.2d at 901 (“Finality and fairness are both
important goals. When faced with an apparent conflict between them, this
Court unhesitatingly chooses the latter.”) Although the matters Daniels
cites suggest some degree of ambiguity or uncertainty in some evidence, the
testimony of Edmonds and four separate robbery victims makes it plain that
Daniels received a sufficiently fair trial.

F. Failure to Present Daniels’ Social History at the Penalty Phase.
Daniels also contends that trial counsel were ineffective for failing to
investigate and present his “social history” at the penalty phase of his
trial. He lists seventeen claims that he asserts were available, had trial
counsel conducted an adequate investigation.

The evidence presented at trial included the testimony of Daniels’
mother, who addressed some of these seventeen items. She testified that
she and Daniels’ father divorced when Daniels was four years old, (T.R. at
1088), that Daniels was a “slow learner” in school, (T.R. at 1090), and
that his reading level was “well below his [sic] average,” (T.R. at 1094).

Daniels raised this same basic claim on appeal from the denial of his
first petition for post-conviction relief. His argument there comprised
nearly ten pages of his brief. (S.P-C.R. at 2805, pp. 76-85.) Daniels’
counsel pointed to evidence that Daniels “suffered from a learning
disability and consequently had difficulty in school, that illnesses after
his birth retarded his development and that he was a follower who could not
say no when his friends suggested unlawful behavior.” (Id. at pp. 79-80.)
Daniels’ counsel also indicated that there were other available family
members and friends to testify against a jury recommendation for the death
penalty. (Id. at p. 81.) This Court rejected Daniels’ contention that
trial counsel were ineffective for failing to investigate and present
mitigating evidence.
While in retrospect it is easy to say that defense counsel should have
presented additional evidence in mitigation besides the testimony of
appellant’s mother, that testimony itself emphasizes that there may
have been tactical reasons why additional witnesses were not called.
As a result of statements made by appellant’s mother, the prosecution
was permitted to introduce a portion of appellant’s juvenile record.
Pitfalls exist in any strategy . . . . Without a specific significant
mitigator being identified, the decision to call only appellant’s
mother cannot be deemed deficient.

Daniels, 528 N.E.2d at 780. An additional decade of investigating
mitigators has not yielded substantially different or weightier material
than we examined in 1988. For the reasons explained in Parts C. & D.,
supra, this claim is also barred by the doctrines of res judicata and
waiver.[12]

II. Ineffective Assistance of Appellate Counsel

Daniels also contends that the attorney who filed the motion to
correct error after trial rendered ineffective assistance of counsel by
“filing a motion to correct errors without first reading the transcript of
the trial, thereby limiting the meritorious issues that could be raised on
appeal.” (Appellant’s Br. at 64.) Daniels was represented at trial by
court-appointed counsel but retained private counsel to file his motion to
correct error. Daniels contends that retained counsel “was not aware of
the lack of preparation of mitigation evidence or the failure to use
exculpatory evidence at the guilt phase” and that retained counsel now
believes that trial counsel provided ineffective assistance at the penalty
phase. (Id. at 65.)

However, Daniels points to no errors on the face of the trial record
that would have been found and included in the motion to correct error had
counsel read the transcript. Indeed, although reading the transcript would
certainly have apprised counsel of the limited nature of the penalty phase
evidence, it would not have unearthed the mitigating evidence that Daniels
now believes should have been presented. Moreover, if a claim of
ineffective assistance of counsel had been raised in the motion to correct
error and on direct appeal, Daniels would then have been precluded from
litigating the issue in a post-conviction proceeding after a more thorough
investigation.

The post-conviction court determined that this issue was waived
because it was available but not raised in Daniels’ first post-conviction
relief petition.[13] See Ind. Post-Conviction Rule 1(8) (“All grounds for
relief available to a petitioner under this rule must be raised in his
original petition.”). We agree.

III. Ineffectiveness of Post-Conviction Counsel

As a final point, Daniels contends that the deputy state public
defender who represented him at his first post-conviction hearing was
ineffective for failing to investigate and present the evidence relating to
Rowley and “available mitigation evidence” at the hearing. (Appellant’s
Br. at 66.)

To begin, we note that Daniels himself has contradicted his current
claim that Paul Levy was ineffective as post-conviction counsel. When Levy
testified during a successive post-conviction proceeding about his
representation of Daniels, Daniels’ then-current counsel questioned why
Levy had not more vigorously pursued the issue of Daniels’ mental
competence. Daniels broke in, objecting “. . . it’s totally unnecessary.
Mr. Levy was a fine attorney.” (S.P-C.R. at 2056.)

Levy testified during a successive post-conviction hearing that in
retrospect he considered himself unqualified to have served as post-
conviction counsel due to his lack of trial experience. (S.P-C.R. at
2064.) However, we held in Wallace v. State, 640 N.E.2d 374, 376 (Ind.
1994), cert. denied, 514 U.S. 1115 (1995), that “the filing of a post-
conviction relief petition, even in a capital case, does not require a
particular expertise in the trying of a capital case in its inception but
rather requires a degree of skill in the manner in which post-conviction
relief is presented to the trial court.”

Levy went to work for the Indiana State Public Defender upon his
graduation from law school in 1980. (S.P-C.R. at 2049.) By 1984, when he
represented Daniels, he had become Deputy Chief Public Defender, handling
primarily post-conviction relief petitions. (S.P-C.R. at 2048-49.) During
his tenure as a public defender, which ended in 1986, he handled at least
four other death penalty cases. (S.P-C.R. at 2095, 2120.) At that time
very few other attorneys in the state handled death penalty post-conviction
relief matters. (S.P-C.R. at 2125.)

Levy received training in death penalty post-conviction relief issues,
and by his own description, he was given post-conviction case assignments
because he was the “best and brightest” in the public defender’s office.
(S.P-C.R. at 2051-52, 2067.) During his career as a public defender, he
handled hundreds of post-conviction relief petitions, many of which were
successful. (S.P-C.R. at 2114-15.) Levy represented some of the most high
profile death row inmates of the 1980’s. See, e.g., Resnover v. State, 507
N.E.2d 1382 (1987); Williams v. State, 525 N.E.2d 1238 (Ind. 1986)(Levy won
new sentencing); Brewer v. State, 496 N.E.2d 371 (Ind. 1986).

From a broader perspective, “[t]he right to counsel in a post-
conviction proceeding is guaranteed neither by the Sixth Amendment of the
United States Constitution nor article 1, § 13 of the Constitution of
Indiana.” Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989); see also
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never held that
prisoners have a constitutional right to counsel when mounting collateral
attacks upon their convictions, and we decline to so hold today.”)
(citation omitted).

Daniels acknowledges that the performance of post-conviction counsel
is reviewed under the highly deferential standard set forth as a matter of
Indiana state law in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). In Baum,
Justice DeBruler announced that we would review claims of ineffectiveness
of post-conviction counsel under a standard that is
responsive more to the due course of law or due process of law
principles which are at the heart of the civil post-conviction remedy.
We adopt the standard that if counsel in fact appeared and
represented the petitioner in a procedurally fair setting which
resulted in a judgment of the court, it is not necessary to judge his
performance by the rigorous standard set forth in Strickland v.
Washington.

Id. at 1201(citation omitted).

This Court applied the Baum standard in Waters v. State, 574 N.E.2d
911 (Ind. 1991), and reversed the denial of a petition for post-conviction
relief. In Waters, the defendant/petitioner filed a pro se petition;
counsel filed an appearance one month later; and the post-conviction court
ordered the evidence submitted by affidavit. Id. at 912. The petitioner
submitted the affidavits pro se, and counsel submitted nothing on behalf of
the petitioner, save a petition for instructions, because the State filed
no counter-affidavits or other evidence. Id. The post-conviction court
denied relief, finding that the pro se affidavits were inadequate for
various procedural and technical reasons. Id.

This Court observed that post-conviction “counsel should have known
that the affidavits were technically inadequate and should have taken the
necessary steps to present them to the trial court in an acceptable form.
Counsel, in essence, abandoned his client and did not present any evidence
in support of his client’s claim.” Id.[14] This is not the case here.
Daniels’ post-conviction counsel filed a fifteen-page petition that raised
seven separate claims, many with multiple parts, and presented nine
witnesses at a three-day hearing. (P-C.R. at 21-35, 369-576.)

The post-conviction court found that “even if the standard of
performance of counsel described in Strickland were applicable, post-
conviction counsel’s performance was not ineffective in that his
representation was in accord with prevailing standards in the legal
community at that time.” (Appellant’s Br. App. at 35.) Our review of the
record does not lead unerringly and unmistakably to an opposite conclusion;
therefore, we affirm the judgment of the post-conviction court. See
Harrison v. State, 707 N.E.2d 767, 773 (Ind. 1999), cert. denied, 120 S.Ct
1722 (2000).

Conclusion

We affirm the denial of Daniels’ successive petition for post-
conviction relief.

Dickson and Sullivan, JJ., concur.
Boehm, J., dissents with opinion, in which Rucker, J., joins.
ATTORNEYS FOR APPELLANT

Mark Earnest
Eric K. Koselke
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

MICHAEL WILLIAM DANIELS, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-9411-SD-1079
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable James Detamore, Special Judge
Cause No. CR78-47D

ON APPEAL FROM THE DENIAL OF SUCCESSIVE PETITION FOR POSTCONVICTION RELIEF

January 12, 2001

BOEHM, Justice, dissenting.
I agree with the majority’s recitation of the well settled principles
of waiver and res judicata. ___ N.E.2d at ___, Slip Op. at 18-19. I also
agree that this case boils down to “the dilemma between the dual goals of
ending litigation and ensuring only proper imposition of the death
penalty.” Id. at ___, Slip Op. at 16-17. However, I believe the majority
places too high a premium on finality and discounts evidence that suggests
Daniels may not have been the perpetrator of these horrendous crimes. This
evidence was not presented at Daniels’ trial and was also completely
ignored by postconviction counsel. Although the successive postconviction
court found the evidence persuasive, invocation of waiver precludes its
consideration by any court. I would adhere to the principle embraced by
this Court in Huffman v. State, 643 N.E.2d 899 (Ind. 1994), also a death
penalty case. We held there that “[f]inality and fairness are both
important goals. When faced with an apparent conflict between them, this
Court unhesitatingly chooses the latter.” Id. at 901. For the reasons
explained below, I believe the unusual facts of this case demand an
exception to the general waiver and res judicata principles.
A. The Evidence
The State’s theory at trial was that the robberies were committed by
Daniels, Kevin Edmonds, and Donald Cox. Defense counsel focused their
efforts on discrediting the testimony of Edmonds and did little to question
the identifications by the robbery victims. Daniels correctly asserts in
this appeal that trial counsel had available to them a wealth of
information that suggested that Rowley, not Daniels, might have been the
gunman during the robberies. Daniels points to a number of specifics.
Rowley and Cox were charged with a robbery with a similar modus operandi
four days before these offenses.[15] Timothy Streett, the son who
witnessed his father being shot, tentatively identified both Rowley and
Daniels as possible participants.[16] The daughter from the third robbery
initially identified Daniels in a line-up, but only after his picture had
appeared in the newspaper. She later called a deputy prosecutor and stated
that she was “not real sure anymore” about the identification, but
nonetheless confidently identified Daniels at trial. The fourth robbery
victim, who testified at trial that he was positive of his identification
of Daniels, had previously told a detective who showed him an array of
photographs that he could not identify the perpetrator but narrowed it down
to Rowley and Daniels. Before Edmonds implicated Daniels, he had suggested
to police, in response to Rowley’s pointing a finger at him, that Rowley’s
knowledge of the robberies suggested Rowley was present when they took
place. In a polygraph interview of Rowley two weeks after the crimes, the
examiner detected “deceptive responses.” According to the polygraph
report, Rowley, in response to subsequent questions, then “confessed” to
the first robbery, although it is unclear precisely what this means and the
audiotape of the interview no longer exists.[17] Rowley was initially
charged with the Streett murder. According to the probable cause
affidavit, this charge was based on Timothy Streett’s identification of
Rowley “as being with the person” who shot his father. Finally, shell
casings fired from the same gun as the shell casings found at the murder
scene and the scene of the fourth robbery were recovered during a search of
Rowley’s home.
Daniels contends that his trial counsel were ineffective for failing
to present this evidence suggesting that Paul Rowley, and not Daniels, may
have committed the crimes at issue in this case. The postconviction court
found no prejudice as to the guilt phase, and I agree with the majority’s
affirmance of the successive postconviction court’s judgment on that point.
However, I reach a different conclusion regarding the penalty phase.
All of the robbery victims testified that they saw two robbers and
only one wielded a gun. Edmonds testified that he was with Daniels, who
carried the gun throughout the evening, while Cox remained in the car. The
State’s theory of the case, from opening statement to verdict, was that
Daniels, Edmonds, and Cox were the only participants in the crime spree.
Daniels argues, and I agree, that the cited evidence suggesting Rowley’s
presence, and even the possibility that Rowley was the shooter, left at
least a “residual doubt” as to whether Daniels was the shooter.[18]
B. Performance of Trial Counsel
This case was tried in 1979(long before Criminal Rule 24 was adopted.
That Rule requires death penalty trial counsel to meet significant
training, educational, and other requirements, and provides for resources
to defense counsel that were unavailable in 1979. Although the performance
of counsel is evaluated under prevailing professional norms of the time,
the postconviction court was justifiably appalled by the performance of
counsel and found that their omissions as to the penalty phase of this
trial were deficient and prejudicial, even by 1979 standards. It found
that “in several areas they did a deplorable job.” The first of these
identified by the postconviction court was the failure to cross-examine
eyewitnesses. This is at least arguably attributable to trial strategy to
avoid appearing callous to victim- witnesses. The second item, however,
goes beyond the questionable and enters the realm of the incomprehensible.
The postconviction court identified several pieces of evidence suggesting
that Rowley, not Daniels, was the shooter, all of which were never put
before the jury at trial. It found it
inconceivable with the trial strategy indicated by trial counsel that
no police officers were called to testify about multiple
identifications by Timothy Streett; about Paul Rowley’s confession to
involvement in the [first] robbery; and about shell casing found at
Rowley’s home that matched the shell casings found at the scene of the
Streett murder and Barnett attempted robbery/shooting, all of the
above information was either in the Court file, in exhibits attached
to pleadings filed by trial counsel themselves, or readily available
to them with minimal investigation.

As this Court recently observed in Ben-Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000), Criminal Rule 24, which became effective January 1,
1990, now “creates minimum standards for the criminal litigation
experience, specialized training, compensation, and caseload of lawyers
appointed in capital cases.” Prosecutors and defense attorneys agree that
“Rule 24 ha[s] led to improved representation by defense lawyers in capital
cases.” Id. (quoting Norman Lefstein, Reform of Defense Representation in
Capital Cases: The Indiana Experience and Its Implications for the Nation,
29 Ind. L. Rev. 495, 509 (1996)). “[A] death penalty verdict returned
[since the advent of Rule 24 is] more likely to be sustained on appeal, and
the appellate court [is] less apt to find that defense counsel was
ineffective.” Id.
C. Performance of Postconviction Counsel
These seemingly glaring omissions of trial counsel were repeated in
the first postconviction proceeding. Daniels was represented in the 1984
proceeding by Paul Levy. Levy testified at the successive postconviction
hearing that Daniels’ case was among the first two or three death penalty
postconviction cases in Indiana after the reinstatement of the death
penalty. At the time, Levy was the only person in the State Public
Defender’s Office who was working on such cases. When he filed the
petition for postconviction relief in February of 1984, he had less than
four years experience as a lawyer, and a predominant part of this
experience was reviewing guilty plea transcripts to see if they were in
compliance with Boykin v. Alabama, 395 U.S. 238 (1969), and the Indiana
statutory requirements for a guilty plea.[19] Levy testified that he “had
no experience doing a factual investigation of a case” and that he “had
never worked with an investigator.” He testified that he did not recall
obtaining the files of trial counsel in the case, and he either did not
recall or did not review the trial court’s file. The only thing Levy could
confidently say he had done was review the record of proceedings from
trial. Indeed, Levy testified that he “didn’t do much of my own factual
investigation beyond the reading of the trial transcripts,” and that “if I
had known about other evidence that could have cast doubt on the
reliability of the identification of Michael Daniels as the murderer in
this case, I would have pursued it. But did I investigate and look for
that? No.” Finally, Levy testified that part of the reason he left his job
with the State Public Defender a few years later was “a growing sense of
unease that I wasn’t doing my job very well.”
It appears that Levy viewed his role as essentially a second appellate
attorney. However, as this Court observed in Woods v. State, 701 N.E.2d
1208, 1216 (Ind. 1998),
expecting appellate lawyers to look outside the record for error is
unreasonable in light of the realities of appellate practice. Direct
appeal counsel should not be forced to become a second trial counsel.
Appellate lawyers may have neither the skills nor the resources nor
the time to investigate extra-record claims, much less to present them
coherently and persuasively to the trial court.

Postconviction counsel is not to function as another appellate attorney.
In Woods, we noted the importance of conducting a factual investigation and
developing extrinsic evidence to support many claims of ineffective
assistance of counsel. Id. at 1216. This was recently again emphasized by
the United States Supreme Court in Williams v. Virginia, 120 S. Ct. 1495,
1515-16 (2000), in the context of omitted mitigating evidence. It is
equally true of the Rowley-related evidence, which would have required
Levy to develop and present evidence beyond the face of the trial record
to establish ineffective assistance of counsel.
As noted above, had Criminal Rule 24 been in effect at the time of
Daniels’ trial, much of the Rowley evidence would likely have been
presented to the jury. However, for many years the State Public Defender’s
Office has been equipped to identify errors of the magnitude of those that
occurred here and raise them in the initial postconviction proceeding.[20]
The briefing in this and other cases demonstrates that capital
postconviction counsel in recent years conduct a very thorough factual
investigation and appear to raise every conceivable issue as grounds for
postconviction relief. The contrast between Daniels’ initial
postconviction proceeding and those of later years is stark.
Although many capital cases present virtually irrefutable physical
and testimonial evidence of guilt, guilt in this case is based on the
testimony of a co-defendant who testified pursuant to a plea agreement for
a reduced charge and eyewitness victims, some of whom had previously
identified Rowley or others. Trial counsel had available, but failed to
use, a substantial body of information suggesting that someone else may
have committed the crimes for which Daniels was charged. Postconviction
counsel added nothing, with the result that no court considered these
points until the second postconviction proceeding in 1997.
D. The Postconviction Court’s Findings
The evidence the majority cites is surely enough to sustain a
conviction, but I cannot exclude the possibility that the omitted evidence
could have affected the sentence. The second postconviction court
concluded that it would have. After a lengthy hearing at which the omitted
Rowley evidence was presented and trial counsel and Levy testified about
their performance, the second postconviction court found that “had trial
counsel done a fully professional job the residual doubt which would have
been placed with the jury and the Judge would have created a reasonable
probability that the recommendation would have been different and a
reasonable probability that the Judge would not have imposed the death
penalty.” Because this is ultimately a factual determination, this Court
will reverse only upon 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). The postconviction court’s
finding that, but for trial counsel’s omissions the death penalty would not
have been imposed, is not clearly erroneous. Nevertheless, the
postconviction court quite correctly viewed itself as barred by our
pronouncements that a prior postconviction try at ineffective assistance
precludes revisiting that issue, and accordingly denied relief.
E. The Need for an Exception to the Usual Res Judicata/Waiver Rules
This case thus presents a case in which (1) the death penalty was
imposed; (2) the trial was conducted before Criminal Rule 24; (3) there was
minimal investigation; (4) postconviction counsel was inexperienced and
conducted no factual investigation; (5) subsequent investigation revealed
exculpatory evidence; and (6) a subsequent postconviction court found the
omitted evidence sufficient to render the death penalty unreliable. In
light of the adoption of Criminal Rule 24 and the dramatic improvements in
capital postconviction representation by the State Public Defender, I trust
this case presents a set of circumstances that will recur infrequently.
But given the woeful performance at the initial postconviction proceeding,
I cannot prioritize the powerful reasons favoring finality over the concern
that the death penalty may have been imposed not for the defendant’s acts,
but for counsel’s oversights.
Accordingly, I believe this Court should consider the merits of
Daniels’ claim of ineffective assistance of trial counsel based on
inadequate investigation of and failure to present the Rowley evidence.
Giving due deference to the factual determinations of the successive
postconviction court, I would affirm the denial of relief as to the
convictions but reverse the denial of relief as to the penalty phase.
RUCKER, J., concurs.
-----------------------
[1] Daniels’ arrest records described him as African-American, nineteen
years old, 5’6” tall and 118 pounds, slender, with brown eyes. (S.P-C.R.
at 1289.)
[2] Although he did not specify, McCloskey was presumably referring to the
trial of Donald Cox, who drove the “getaway car” and who was convicted and
sentenced to ninety years for his participation in the crimes for which
Daniels was also charged. (T.R. at 1116, 1119.)
[3] Though the dissent complains that we have placed “too high a premium
on finality,” diss. at 37, the foregoing demonstrates that Indiana’s
courts have hardly leapt to judgment in Mr. Daniels’ case. On the
contrary, we have spent twenty-three years litigating it.
[4] Daniels does not suggest that the State violated Brady v. Maryland,
373 U.S. 83 (1963) by failing to disclose exculpatory information. Rather,
Daniels contends that his trial counsel did not use information available
to adequately investigate and to properly question certain witnesses at
trial.
[5] Rowley was convicted of that earlier crime. Rowley v. State, 271 Ind.
584, 394 N.E.2d 928 (1979). His conviction was ultimately reversed,
however, when this Court held that a witness who had been hypnotized in an
effort to enhance his memory of the crime, and who was central to the
State’s case, did not have a sufficiently independent basis for his
identification of Rowley. Rowley v. State, 483 N.E.2d 1078, 1083 (Ind.
1985). The only other direct evidence in that case was testimony by Kevin
Edmonds, who also testified against Daniels in this case. Id., (T.R. at
964). There, as here, Edmonds testified as part of a plea bargain.
Rowley, 483 N.E.2d at 1083; (T.R. at 990-1).
Daniels, in a 1984 petition for post-conviction relief, sought a
reversal on similar grounds because Timothy Streett was hypnotized in an
effort to enhance his recall of the shooter’s appearance. Daniels, 528
N.E.2d at 776. We denied relief because Streett had an independent basis
for his in-court identification that was untainted by the hypnosis. Id. at
779. Furthermore, Streett was only one of several eyewitnesses who
testified to the various crimes charged, and Edmonds’ plea arrangement was
fully disclosed to the jury so that they could consider it in weighing
Edmonds’ credibility. (T.R. at 990-1, 1004.)
It is unclear from this record whether Cox was convicted.
[6] Although the audiotapes of the polygraph interview were erased, the
report notes that Rowley stated that he, Cox, and Edmonds “stuck someone up
(note: the victim beat [Edmonds] off with a b[r]oom). The elements of
this crime (the broom) occurred on the same night of the shooting under
investigation . . . .” (T.R. at 367-4.) Daniels further contends that
Rowley “confessed” in that same interview “to having the gun . . . in his
possession on the night of the shooting. Further results of the tests
showed that he did shoot someone on the night of January 16, 1978.”
(Appellant’s Br. at 50.) This language appears in handwritten notes dated
January 30, 1978 that were attached to a deposition admitted into evidence
at the post-conviction hearing. (S.P-C.R. at 2647, ex. 2.) The deposition
was that of a detective who stated that the handwriting “appear[ed] to be”
his. (S.P-C.R. at 2647, p. 14.) However, we note that this Court has
consistently held that polygraph evidence is inadmissible, absent a
stipulation by both parties. Smith v. State, 455 N.E.2d 346, 352 (Ind.
1983).
[7] Police officer Paul Koss, a firearms identification expert, only
testified about shell casings found at the scene of the Streett murder and
the Barnett robbery. (T.R. at 943, 945, 959.) Although his police report
discusses the casings found at all three locations, (S.P-C.R. at 1514),
Koss was not asked about the casings found at Rowley’s home.
[8] Cox was tried separately, before Daniels. Edmonds testified, and the
jury found Cox guilty of all counts. Cox v. State, 275 Ind. 688, 419
N.E.2d 1279 (1981).
[9] Although the specific items argued in Daniels’ successive petition were
not argued in his first petition, issues relating to Timothy Streett’s
identification of Daniels were raised at that hearing and addressed in this
Court’s opinion affirming the denial of post-conviction relief. We stated:

Clearly a decision was made [by trial counsel] to concentrate on
discrediting Edmonds rather than Timothy Streett in order to avoid
alienating the jury with extensive cross-examination of the victim’s
fifteen-year old son. The propriety of this decision will not be
questioned based on hindsight. Even if the strategy were poor, it
does not rise to the level of ineffective assistance.
Daniels, 528 N.E.2d at 779.
[10] Daniels also contends that these assertions are supported by a motion
to correct error that was prepared but never filed by Paul Levy, the deputy
state public defender who represented him at his first post-conviction
hearing. Levy’s motion stated:
At Petitioner’s request, counsel would additionally represent here
that he has not undertaken to investigate or raise certain other
issues in these proceedings, contrary to Petitioner’s explicit
demands. These issues pertain to the following: . . . (iii) That
Petitioner did not have access to items of evidence requested by
Motion to Compel Discovery, dated June 20, 1978, and, accordingly, was
without the assistance of counsel to ascertain other instances of
error in his case, despite Petitioner’s request that present counsel
obtain this evidence listed in the Motion to Compel. Petitioner
requested that counsel obtain this evidence on August 7, 1984 in order
to further investigate error in his trial proceedings to be raised in
the Post-Conviction Petition, but counsel refused to do so.
(S.P-C.R. at 1983.) Levy’s motion was never filed because Daniels retained
an attorney to represent him after the conclusion of the post-conviction
hearing but before the motion to correct errors was filed. His retained
counsel then filed a motion to correct error that did not include this
allegation.
[11] The State could not have kept from Daniels the truth about whether
Rowley was present or not. Daniels has always known that.
[12] Even absent res judicata and waiver, Daniels’ claim would be tenuous.
Trial courts are not required to treat evidence of a troubled childhood as
a mitigating circumstance, see Lowery v. State, 547 N.E.2d 1046, 1059 (Ind.
1989), cert. denied, 498 U.S. 881 (1990), and Daniels does not explain how
his social background is relevant to his culpability. See Penick v. State,
659 N.E.2d 484, 489 (Ind. 1995) (upholding the trial court’s determination
that the defendant’s “horrible, chaotic, abusive violent life” explained
his crime, but neither justified nor excused that crime).
[13] The post-conviction court also found that, even if the issue were not
waived, the claim fails because “appellate counsel’s representation of
Petitioner was in accord with the prevailing standards in the legal
community at that time.” (Appellant’s Br. at 35.)
[14] See also Patton v. State, 537 N.E.2d 513, 517 (Ind. Ct. App. 1989),
which Daniels cites for support. In Patton, the Court of Appeals granted a
petitioner relief under the Baum standard. The defendant/petitioner
challenged a 1973 guilty plea through a petition for post-conviction
relief. The transcript of that guilty plea hearing was either lost or
destroyed. Id. at 517. Although counsel was apprised at the post-
conviction hearing of the procedures to be followed in such circumstances,
counsel made no effort to reconstruct the record or establish that
reconstruction was possible. Id. at 515 (citing Zimmerman v. State, 436
N.E.2d 1087, 1088 (Ind. 1982); Ind. Appellate Rule 7.2(A)(3)(c)). In
finding a Baum violation, the Court of Appeals observed that post-
conviction counsel “made no effort to present to the court . . . the facts
from which the court could determine the only critical issue before it. We
do not believe this was a ‘procedurally fair setting’ because, in essence,
the court had no record before it from which it could review Patton’s
claim.” Patton, 537 N.E.2d at 519-20. In contrast to Patton, the record
from Daniels’ trial, upon which his claim of trial counsel ineffectiveness
is predicated, was submitted to the first post-conviction court.
[15] Rowley was convicted of that earlier crime. Rowley v. State, 271
Ind. 584, 394 N.E.2d 928 (1979). It is unclear on this record whether Cox
was convicted.
[16] Daniels also points to the following statement by a deputy prosecutor
at a pretrial hearing in his case with respect to lineups at which
apparently fifteen witnesses were called: “Certain witnesses did not pick
out [Daniels], either picked out someone else or picked out another person.
Some of those sheets no one exactly knows where they are. . . . [T]he
State will stipulate that certain witnesses did not pick [Daniels] out, and
in certain instances witnesses picked other persons out.” We are not told
to which witnesses this refers, and what the discrepancies were. The
prosecutor earlier stated, “A great many persons viewed a line-up for a
variety of crimes that night.” It is unclear how fifteen potential
witnesses were identified when the accounts of the robberies place only six
surviving victims at the scene.
[17] Although the audiotapes of the polygraph interview were erased, the
report notes that Rowley stated that he, Cox, and Edmonds “stuck someone up
(note: the victim beat [Edmonds] off with a b[r]oom). The elements of
this crime (the broom) occurred on the same night of the shooting under
investigation . . . .” Daniels further contends that Rowley “confessed” in
that same interview “to having the gun in his possession on the night of
the shooting. Further results of the tests showed that he did shoot
someone on the night of January 16, 1978.” This language appears in
handwritten notes dated January 30, 1978 , which were attached to a
deposition admitted into evidence at the postconviction hearing. The
deposition was that of a detective who stated that the handwriting
“appear[ed] to be” his.
[18] Daniels also suggests that trial counsel were ineffective for failing
to make a penalty phase argument based on residual doubt. The majority
correctly notes that we recently held in Miller v. State, 702 N.E.2d 1053,
1069 (Ind. 1998), cert. denied, 528 U.S. 1083 (2000), that “counsel ought
have no obligation to argue to the jury that its just-returned unanimous
determination of guilt ought be revisited . . . . The failure to argue
‘residual doubt’ does not constitute ineffective assistance of counsel.”
Here, however, the failure of counsel is not merely the failure to argue to
the jury that its verdict may have been incorrect. The failure is in
omitting to present the evidence suggesting that possibility.
[19] The majority notes “During his career as a public defender, [Levy]
handled hundreds of post-conviction relief petitions, many of which were
successful.” ___ N.E.2d at ___, Slip Op. at 32. I fail to see how
reviewing and litigating hundreds of guilty pleas in which a trial judge
failed to give a specific statutory advisement would have equipped Levy to
conduct the necessary factual investigation to litigate the complex capital
postconviction relief petition at issue in this case.
[20] Beginning in 1985, the State Public Defender's Office has assigned at
least two attorneys to each death penalty case. Annual Report of the State
Public Defender Fiscal Year 1986-87 13 (1987). In 1986, the Office created
a Death Penalty Task Force to provide ongoing training in areas related to
capital litigation. Id. at 13. It also instituted procedures for
meaningful supervision of death penalty cases by requiring that attorneys
handling capital cases attend a minimum of eight meetings at different
stages of litigation. “The purpose of the stage meetings is to provide
guidance on capital issues and strategies, to ensure that all allegations
are raised, and to provide supervision when warranted.” Id. at 14. These
improvements were presumably in response, at least in part, to the
observation that capital postconviction cases require “review of voluminous
appellate records, police reports, trial discovery, prior counsel’s files,
appellate briefs and investigation of issues and witnesses not previously
presented . . . .” Id. at 10 (emphasis in original).
In the early 1990s, a separate Capital Division was created. It
consisted of a Chief and Assistant Chief Deputy, two case supervisors, a
resource manager, six capital litigation attorneys, two investigators, one
“mitigator,” and three law clerks. Report of the Office of the State
Public Defender Fiscal Years 1988-89, 1989-90, and 1990-91 24, 59 (1991).
According to the most recent published report, the Capital Litigation
Division, which has downsized in recent years because of a reduced
caseload, now employs seven full-time attorneys, one investigator, two
“mitigators,” and two law clerks. Public Defender of Indiana 1999 Annual
Report 19 (2000).