DICKSON, Chief Justice.
The defendant, Daniel Ray Wilkes, has appealed the post-conviction court's denial of his claim that he was deprived of his constitutional rights to an impartial jury and effective assistance of counsel. We affirm the post-conviction court.
The defendant was convicted by a jury of the 2006 murders of Donna Claspell and her two daughters, eight-year-old Sydne Claspell and thirteen-year-old Avery Pike.
The defendant then petitioned for post-conviction relief on various grounds. The post-conviction court denied relief on all but one of the defendant's claims, modifying the defendant's sentence from death to life imprisonment without the possibility of parole.
Post-conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000). Post-conviction proceedings do not offer a super-appeal, "[r]ather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules." Stevens v. State, 770 N.E.2d 739, 746 (Ind.2002) (citing P.-C.R. 1(1)); Ben-Yisrayl, 738 N.E.2d at 258. Those grounds are limited to "issues that were not known at the time of the original trial or that were not available on direct appeal." Ben-Yisrayl, 738 N.E.2d at 258. "Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata." Pruitt v. State, 903 N.E.2d 899, 905 (Ind.2009) (citing Allen v. State, 749 N.E.2d 1158, 1163 (Ind.2001)); see also Ben-Yisrayl, 738 N.E.2d at 258. Claims of ineffective assistance of counsel and juror misconduct may be proper grounds for post-conviction proceedings. See Pruitt, 903 N.E.2d at 906; Allen, 749 N.E.2d at 1164, 1166; Ben-Yisrayl, 738 N.E.2d at 259.
Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment and bears the burden of proof. Ben-Yisrayl, 738 N.E.2d at 258. Thus, the defendant "must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision." Id. "In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did." Stevens, 770 N.E.2d at 745. We review the post-conviction court's factual findings for clear error, but do not defer to its conclusions of law. Id. at 746 (citing Ind. Trial Rule 52(A)).
The defendant contends that his trial counsel were constitutionally ineffective in violation of his rights under the Sixth and Fourteenth Amendments to the U.S. Constitution and Article 1, Section 13, of the Indiana Constitution in three ways: (a) that trial counsel did not fully investigate and present evidence that "casts doubt" on the State's theory during the guilt phase of his trial, Appellant's Br. at 6; (b) that trial counsel permitted an "unqualified [death penalty] juror" to be empanelled by not asking that juror any questions other than the written questionnaire, id. at 23; and (c) that trial counsel failed to adequately preserve any objection to the trial court's imposition of time limits on voir dire, id.
Claims of ineffective assistance of counsel are evaluated using the Strickland standard articulated by the U.S. Supreme Court. Ward v. State, 969 N.E.2d 46, 51 (Ind.2012); Ben-Yisrayl, 738 N.E.2d at 260. To establish ineffective assistance of counsel, a defendant must demonstrate to the post-conviction court (1) that counsel performed deficiently based upon prevailing professional norms ("reasonableness") and (2) that the deficiency resulted in prejudice to the defendant ("prejudice"). Ward, 969 N.E.2d at 51 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)).
This standard first asks whether, "considering all the circumstances," counsel's actions were "reasonable[] under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. "Judicial scrutiny of counsel's performance must be highly deferential." Id.
The defendant contends that his trial counsel rendered constitutionally ineffective assistance by failing to fully investigate and present certain evidence of an exculpatory nature, namely: (1) testimony of two neighbors of the victims that each claimed to have seen at least one of the victims after the State's proposed timeframe for commission of the crimes by the defendant; (2) cell phones recovered in the victims' home containing call histories that purportedly conflict with the State's proposed timeframe for commission of the crimes by the defendant; and (3) a "potential alternative suspect," Appellant's Br. at 10, who was encountered by two neighbors and the police in the vicinity of the victims' home the day before the victims were discovered.
The Strickland ineffective assistance of counsel standard "require[s] no special amplification in order to define counsel's duty to investigate." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Furthermore, on appeal in post-conviction proceedings, the defendant must demonstrate that the evidence points unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Ben-Yisrayl, 738 N.E.2d at 258.
The State's theory during the guilt phase of the defendant's trial was that the defendant committed the murders during the night or early-morning hours of Sunday, April 23, through Monday, April 24, 2006. The victims' bodies were not discovered until Wednesday, April 26, 2006. Witnesses testified that the defendant stayed in the victims' home Sunday night the 23rd but left the home at approximately 8 a.m. Monday morning the 24th. The defendant's whereabouts between leaving the victims' home on Monday morning the 24th and the time of his arrest on Wednesday the 26th were readily accounted for. Certain other facts adduced at trial supported the State's theory: (1) the defendant's confessions to the crimes corroborated the State's proposed timeline; (2) the girls, Avery and Sydne, had not been to school Monday, Tuesday, or Wednesday (24th-26th) and the victims' family had not seen or heard from them those days; and (3) the medical examiner that performed the autopsies estimated the time of death to be the early-morning hours of April 24.
The post-conviction court entered specific findings of fact and conclusions of law on each of the defendant's claims. With respect to the defendant's contention that his trial counsel were constitutionally ineffective
On his appeal from the denial of requested post-conviction relief, the defendant contends that his counsel should have presented the testimony of Matthew Reed and of Marian Wade, each of whom was a neighbor of the victims. During the death investigation, Reed's wife briefly spoke with police and informed them that Reed had seen one of the victims, Sydne, playing outside on Monday, April 24. This information was noted in a police report containing notes on brief interviews with eight different individuals in the victims' neighborhood on Wednesday, April 26, the day the victims were found. Wade approached investigators on Thursday, April 27, and gave a recorded statement in which she stated that she encountered Donna and Avery outside their home on Monday afternoon, April 24. Wade further stated that Donna was engaged in a verbal disagreement with an adult male which involved yelling and vulgar language but that she did not see the individual with whom Donna was arguing. The police report of interview notes and a transcription of Wade's statement were provided to the defense team.
At the post-conviction hearing, Reed testified that he saw Sydne in the back yard of the victims' home, which abutted Reed's "side yard," on Monday, April 24, 2006. P.-C. Tr. at 130, 132.
The defendant also contends that cell phones recovered by police from the victims' home contained evidence that his trial counsel should have presented. Three cell phones were found in the victims' home. The phones were taken by investigators
The defendant further argues that testimony regarding the presence of a third party, Glen Spradley, in the vicinity of the victims' home should have been presented to the jury. The postconviction record reveals that Spradley was briefly in a drug rehabilitation facility with the defendant, Baker, and one of the victims (Donna). The record further reveals that on Tuesday, April 25, 2006, Spradley was seen near the victims' home. Charles Thornton, who lived across the street from the victims, encountered Spradley entering Thornton's home through the front door. When Thornton confronted him, Spradley said he was "looking for Dan" and departed when Thornton informed him that he had the wrong house. P.-C. Ex. 4, at 124. Another neighbor also encountered Spradley trespassing through his yard, again "looking for Daniel." P.-C. Tr. at 203-04. The neighbor testified that Spradley appeared to have "been drinking or on drugs or something." Id. at 204. Spradley left when informed that he had the wrong house. The neighbor, however, called the police. An Evansville police officer responded to the call and found Spradley changing a flat tire on his vehicle near the victims' home. Spradley informed the officer that "he was looking for some friends he knew from rehab." P.-C. Ex. 13, at 196. The officer also found Spradley to be "under the influence of something," id., and helped Spradley arrange for someone to pick him up. The officer stood "within feet" of Spradley but did not see any blood on his clothing. P.-C. Tr. at 162-63.
The defendant's trial defense team also testified at the post-conviction hearing. The lead-counsel, Barbara Williams, had over twenty-five years experience as an Indiana attorney including "close to 150 felony jury trials," id. at 42, and multiple capital cases as both lead and co-counsel. Both Williams and her co-counsel, Kurt Schnepper, were qualified capital case attorneys in accordance with Criminal Rule 24. See Ind.Crim. Rule 24(B). Bill Denton served as the trial defense team's guilt-phase investigator. Denton had over nine years experience as an investigator for the Vanderburgh County Public Defender and had approximately thirty years experience as a deputy sheriff in Vanderburgh County.
Investigator Denton testified that he reviewed all of the discovery information provided by the State in preparation for the trial on his own and with the defendant's counsel. Denton recognized Thornton's
With respect to the investigation and presentation of evidence, attorney Williams testified that the defense theory of the case was that Mike Baker committed the murders and that reliable evidence that challenged the State's theory of the case would have been presented. Williams also testified that the defense "was a very cohesive team and we met very, very, very frequently and we discussed ... every aspect... of the case." Id. at 60. Williams was not questioned regarding Reed, Wade, Spradley, or the cell phones. Attorney Schnepper testified that he reviewed every piece of evidence regarding Mike Baker in preparation for cross-examining Baker during the trial. Schnepper remembered reviewing the photographs of Baker's caller-ID readouts to establish "a time line as to who called and when they called" Baker's house. Id. at 84. Schnepper also remembered that cell phones were recovered from the victims' home but could not recall whether information was retrieved from the phones. However, he testified that if there was helpful information on the phones, the defense team would have utilized that evidence. Schnepper also stated that the defense theory was that Mike Baker was the murderer, id. at 93, and that the defense team investigators and consultants "did a fabulous job," id. at 98.
The record of the defendant's trial overwhelmingly demonstrates that the defense team's theory of the case was that the defendant's confessions were unreliable and Mike Baker was the perpetrator of the crimes. Counsel elucidated this theory in opening statements and in closing arguments. Counsel thoroughly cross-examined Baker about his relationship with the victims and his potential motive for committing murder. Furthermore, counsel expended significant effort cross-examining the investigating officers about their investigation of Baker, contending that the police too readily dismissed Baker's alleged involvement based upon the defendant's initial confession; a confession which the defense argued was unreliable. This was a reasonable strategy given Baker's admitted adulterous-romantic interest in one of the victims, Donna; his admitted visits to the victims' home to get high on methamphetamine; his admitted role as the supplier of methamphetamine to Donna and the defendant; his admitted role in helping his son, who was then facing felony drug charges, manufacture the methamphetamine; and the defendant's allegation, during interrogation, that Baker was the culprit.
While the testimonies of Wade and Reed and the timestamp on the Nokia cell phone suggest that the victims were alive after the defendant left the victims' home, presentation of this evidence would have required an entirely different defense strategy focusing on the possibility of an unknown assailant. In seeking post-conviction relief, the defendant presents
The defense strategy, implicating Baker for the murders, included acceptance of the State's timeline for commission of the crimes. During the initial interrogation, the defendant told police that Baker committed the murders on Sunday night or Monday morning and that Baker threatened the defendant not to tell anyone.
Additionally, even if counsel's performance had been constitutionally deficient so as to satisfy the first prong of the Strickland test, the second prong was not met, that is, "that there is a reasonable probability that ... the result of the proceeding would have been different." Id. at 694,
Findings of Fact, Conclusions of Law and Judgment, Appellant's App'x at 512. The record supports the post-conviction court's conclusion that had the evidence from Reed and Wade, the cell phones, and Spradley's presence been introduced the result of the defendant's trial would have been the same. On appeal, the evidence does not compel a contrary conclusion. We decline to reverse the denial of post-conviction relief on this claim.
The defendant contends that his trial counsel were ineffective because they "failed to ask Juror A any questions" during voir dire
The defendant's argument focuses on Juror A's refusal to answer portions of two questions on the jury questionnaire. The questionnaire was 21 pages in length, consisting of 112 questions, many of which requested further explanation if a particular answer to a yes-or-no question was given. Juror A declined to answer a question that related to drug abuse and, after marking the yes-or-no portion, declined to explain the answer to a question regarding counseling for substance abuse or mental, emotional, or psychological problems. Juror A fully answered the other 110 questions. After the penalty phase of the defendant's trial, the jury was unable to reach a unanimous sentencing recommendation. The trial court sentenced the defendant to death. On post-conviction review, testimony revealed that the jury's vote during the penalty phase of the defendant's trial was 11 votes for life imprisonment without parole and 1 vote for death. The solitary vote for a sentence of death was Juror A.
The principal focus of the defendant's argument with respect to Juror A is that his trial counsel were constitutionally ineffective for failing to inquire into Juror A's ability to consider and weigh the defendant's mitigation evidence during the penalty phase of the trial. The majority of the defendant's mitigation evidence related to his upbringing and the effects of substance abuse and mental health issues on the defendant and his family. The defendant contends that Juror A's refusal to fully answer the two questions regarding substance abuse and counseling should have alerted counsel to the possibility that Juror A would not be receptive to the defendant's mitigation evidence.
At the outset, the defense team sought to identify "people that are always going to vote death," P.-C. Tr. at 118 (testimony of Consultant Pruss), and "whether or not there are people on the jury who will consider mitigation," id. at 50 (testimony of Attorney Williams). Attorney Schnepper noted that more than one questionnaire had "blank spots" or affirmative declinations to answer and that the team "just generally took those into consideration.... [D]epend[ing] on what the question was." Id. at 79-80. The defense team viewed a prospective juror's contact with addiction or mental illness as a possible negative where a spouse and children were involved, preferring instead experience with "a brother or a sister or a distant family member or someone like that, where [the juror] would be more understanding of the disease." Id. at 81. However, the defense team generally viewed a prospective juror's "close contact with drug addiction or alcoholism or something of that nature" as a positive because such a juror was more likely to be sympathetic to the defendant's mitigation evidence. Id. at 80.
Even with the omitted answers, Juror A's questionnaire clearly indicated close contact with substance and physical abuse and mental illness, each from different individuals — a former spouse, a mother, a sister, and a grandfather. Juror A's questionnaire answers also revealed support for the view that social factors and the particular details of a crime are each relevant to determining punishment. Juror A's answers further indicated receptiveness to testimony by mental health doctors and professionals. Additionally, Juror A expressed strong concern about the finality of the death penalty.
Because of the time limitation on voir dire, the defense team relied wholly on the questionnaires in evaluating some prospective jurors, choosing instead to use the allotted voir dire time to direct questions to those prospective jurors with questionnaire answers or responses to questions by the State that revealed the most potential prejudice to the defendant's trial or mitigation strategy. This was done in an effort to have those potentially prejudicial jurors struck for cause.
In addition to his penalty phase arguments with respect to Juror A, the defendant also briefly asserts that his defense counsel's failure to question the juror was harmful during the guilt phase of the trial. During the defendant's trial, counsel sought to undermine the defendant's confessions by highlighting the defendant's initial claim during interrogation that he had no "memory of any of the events other than flashes of the scene," Appellant's Br. at 16, and by arguing that the initial confession was the result of coercive interrogation. This strategy was partially based upon the defendant's admission to ingesting alcohol, methamphetamine, and a prescription anxiety medication the night of the murders and his claim during the initial interrogation that he was still under the influence of drugs. The defendant now contends that a juror, such as Juror A, "who had an ex-spouse who became violent while drinking is likely not to be receptive to the defense theory at guilt phase." Id. However, Juror A was candid about this topic in the jury questionnaire and trial counsel was thus aware of Juror A's experience without further questioning.
With respect to the impact of Juror A on both the guilt and penalty phases, the assessment of Juror A's ostensible biases as compared to the other prospective jurors on the voir dire panel and in the jury pool as a whole was a matter properly within the tactical discretion of trial counsel, and the record does not demonstrate that counsel was constitutionally ineffective in the exercise of that discretion. The defendant has failed to establish to the post-conviction court that his trial counsel were constitutionally ineffective for using voir dire to question other jurors instead of questioning Juror A during the time allotted. The defendant is not entitled to relief on this claim.
The defendant further argues that trial counsel "failed to make an adequate record for appealing the time limit placed on jury selection." Id. at 23. The trial court's time limit was thirty minutes per panel for each party.
With respect to this claim, the post-conviction court correctly noted that "[a] trial court has broad discretionary power to regulate the form and substance of voir dire," Findings of Fact, Conclusions of Law and Judgment, Appellant's App'x at 510; accord Ward v. State, 903 N.E.2d 946, 955 (Ind.2009), and concluded that the defendant suffered no prejudice, thus failing to satisfy the second prong of the Strickland constitutional ineffective assistance of counsel standard. As previously discussed, trial counsel were willing to forgo questioning Juror A in order to question other jurors on the panel. This was a tactical decision within trial counsel's discretion. Regardless, even if trial counsel had specifically objected and requested additional time to question Juror A, the trial court would not have been required to grant the additional time. The trial court did not abuse its discretion in limiting voir dire to thirty minutes per panel for each party, nor do we think that it would have been an abuse of discretion had the trial court refused to extend the time with respect to any individual panel, including that of Juror A. See, e.g., Lucas v. State, 499 N.E.2d 1090, 1093-94 (Ind.1986) (upholding conviction for multiple counts of burglary where trial court imposed thirty-five minute time limit for each side on jury selection which was shared by joint defendants); Zachary v. State, 469 N.E.2d 744, 747 (Ind.1984) (upholding convictions for rape and criminal deviate conduct where trial court imposed twenty minute time limit for each side on jury selection which was shared by joint defendants); Wickliffe v. State, 424 N.E.2d 1007, 1008 (Ind. 1981) (upholding murder conviction where trial court imposed twenty minute time limit for each side on jury selection); Lynn v. State, 271 Ind. 297, 298-99, 392 N.E.2d 449, 450-451 (1979) (upholding murder conviction where trial court imposed twenty minute time limit for each side on jury selection); see also Addison v. State, 962 N.E.2d 1202, 1206 (Ind.2012) (noting trial court's "normal time limit of thirty minutes per side" for jury selection in murder trial). Even if we hypothesize that the defendant's trial counsel were deficient in failing to request additional time to question Juror A, such omission did not result in the requisite prejudice under Strickland and thus the defendant is not entitled to prevail on this claim.
With respect to each of the defendant's claims of constitutionally ineffective assistance of counsel raised on appeal, the evidence, as a whole, does not lead unmistakably and unerringly to a conclusion opposite that reached by the post-conviction court. The judgment of the post-conviction court is affirmed.
The defendant's appeal also challenges the post-conviction court's rejection of his claim that his constitutional right to an impartial jury was violated because, had Juror A fully answered the jury questionnaire or been further questioned regarding the omitted answers, "a challenge [for cause] to Juror A would have been sustained." Appellant's Br. at 19. The defendant makes his claim under both the U.S. Constitution and the Indiana Constitution. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...."); Ind. Const. art. 1, § 13(a) ("In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed[.]"); see also Taylor v. Louisiana, 419 U.S. 522, 526, 95 S.Ct. 692, 696, 42 L.Ed.2d
In such claims of juror misconduct under the Indiana Constitution, "to warrant a new trial, there must be a showing that the misconduct was gross, and that it probably harmed the defendant." Lopez v. State, 527 N.E.2d 1119, 1130 (Ind.1988). First, the defendant contends that Juror A committed gross misconduct by, as discussed above in Part 1(B), failing to fully answer two questions on the jury questionnaire. Second, the defendant argues that had counsel or the trial court inquired into Juror A's failure to fully answer one of the questions, that Juror A would have affirmatively refused to answer even if instructed to do so by the trial court. This, the defendant claims, would have led to the dismissal of Juror A for cause.
While Juror A should have answered the questions fully, McFarland v. State, 271 Ind. 105, 110, 390 N.E.2d 989, 992 (1979) ("It is the duty of each juror to answer all questions on voir dire fully and truthfully."), we do not think that Juror A's actions here rose to the level of gross misconduct. Compare State v. Dye, 784 N.E.2d 469, 474-75 (Ind.2003) (finding gross misconduct in murder trial that involved allegations of rape where juror hid the fact that her brother had been convicted of murder and received a death sentence and the fact that she had been a victim of rape and that she recalled and compared her experience during the trial), with Warner v. State, 773 N.E.2d 239, 246-47 (Ind.2002) (finding no gross misconduct in murder trial where juror unintentionally omitted the fact that her sister had been murdered and juror testified that the incident did not affect her impartiality). There is no evidence that Juror A was at all untruthful, and the manner in which Juror A declined to answer revealed, rather than concealed, that Juror A had some experience with family members' substance abuse and mental health issues. Nor does the record demonstrate that Juror A lacked impartiality. The defendant points to specific statements made by Juror A when deposed for purposes of this post-conviction proceeding and contends that Juror A was biased against the defendant's mitigation evidence. However, Juror A's deposition, as a whole, reveals that Juror A properly understood the process of weighing the aggravators and mitigators in the deliberation process and does not show that Juror A refused to consider the defendant's evidence. Rather, the defendant's dispute concerns the weight that Juror A gave to the defendant's mitigation evidence. That Juror A did not weigh the aggravators and mitigators in the manner the defendant would have liked does not show that Juror A was biased. The actions of Juror A in failing to fully answer two questions on the pre-trial questionnaire do not establish gross misconduct in this case. Absent a showing of gross misconduct, the issue of resulting prejudice is irrelevant. The record does not conclusively demonstrate any error by the post-conviction court on this issue.
To prevail before the post-conviction court under the federal standard, it was the defendant's burden to "`first demonstrate that a juror failed to answer honestly a material question ... and then further show that a correct response would have provided a valid basis for a challenge for cause.'" Dye, 784 N.E.2d at 472 (alteration in original) (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663,
The defendant finally contends that the post-conviction court erred in denying his motion for discovery or in camera review of confidential mental health records pertaining to certain members of Juror A's family. Post-conviction proceedings are governed by the same rules "applicable in civil proceedings including pre-trial and discovery procedures." P-C.R. 1(5). Trial and post-conviction courts are accorded broad discretion in ruling on discovery matters and we will affirm their determinations absent a showing of clear error and resulting prejudice. State v. McManus, 868 N.E.2d 778, 790 (Ind.2007).
The post-conviction court's ruling, the defendant argues, "deprived [him] of his ability to develop necessary facts in support of his claim that [Juror A] was not impartial and should have been stricken for cause." Appellant's Br. at 20. However, the defendant did discover the circum-stances surrounding the confidential mental health records and was able to discuss the matter with Juror A during the deposition. Thus, what the defendant sought with this motion was more detail and in matters of a very private concern. We think such detail carries relatively little weight in comparison to the privacy interests of Juror A and Juror A's family. See Dye, 784 N.E.2d at 477 ("The State also argues that the post-conviction court's decision `will open the floodgates to numerous juror investigations after sound verdicts have been rendered' and warns that the corollary response of the State will be `to conduct extensive pre-trial investigations of the venire to protect convictions and sentences.' We agree that these consequences are extremely undesirable. This is so not only because of the societal interest in the finality of criminal proceedings but also because of our interest in assuring the safety and personal privacy of citizens who serve as jurors. Post-trial investigations of jurors should be the exception, not the rule."). Through other available means, the defendant was able to develop a record of Juror A's experiences relating to Juror A's omitted answers on the questionnaire. The defendant has failed to demonstrate that the post-conviction court's refusal to allow the defendant to comb through the private and confidential mental health records of Juror A's family was clearly erroneous.
The post-conviction court granted the defendant's request to vacate his death sentence. In thus imposing a sentence of life imprisonment without parole, the court denied the defendant's request for a reversal of his convictions and remand for a new trial based on claims that the defendant received constitutionally ineffective assistance of trial defense counsel; that the defendant was deprived of his right to an impartial jury under the U.S. and Indiana constitutions; and that the defendant was entitled to discovery or in camera review
RUCKER, DAVID, MASSA, and RUSH, JJ., concur.
State's Trial Ex. 102 at 55-56.
P.-C. Tr. at 81.