Preview:

ATTORNEYS FOR APPELLANT Susan K. Carpenter Public Defender of Indiana Thomas C. Hinesley Steven H. Schutte Deputy Public Defenders Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 87S00-0106-PD-285 JOHN M. STEPHENSON, Appellant (Petitioner below), v. STATE OF INDIANA, Appellee (Respondent below). _________________________________ Appeal from the Warrick Superior Court, No. 87D02-0210-PC-118 The Honorable Robert R. Aylsworth, Judge _________________________________ On Petition for Post-Conviction Relief _________________________________ April 26, 2007 Boehm, Justice. After an eight-month trial, a jury found John Matthew Stephenson guilty of burglary, theft, and the murders of three people. At trial, the defense contended that the murders of John "Jay" Tyler; his wife, Kathy Tyler; and Brandy Southard were the result of a drug operation unrelated to Stephenson. The testimony of several defense witnesses implicated persons Stephenson contended were involved in the drug ring. Stephenson also presented alibi witnesses who testified to his whereabouts at the time the State alleged the murders took place. The jury found Stephenson guilty and found multiple murders as an aggravating circumstance supporting the

death penalty. The trial court, following the jury's recommendation, sentenced Stephenson to death. We affirmed both the convictions and death sentence. Stephenson v. State, 742 N.E.2d 463 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002). During both the guilt and sentencing phases of trial, Stephenson was forced to wear a stun belt in the jury's presence. No objection was made by Stephenson's trial counsel to the stun belt, and the trial record made no reference to the use of the belt. Stephenson sought postconviction relief, alleging that (1) the use of a stun belt was structural and fundamental error; (2) trial counsel and appellate counsel were ineffective on a number of grounds, including trial counsel's failure to object to the belt; (3) new evidence undermined confidence in his convictions and death sentence; (4) prejudicial outside influences biased the jury; and (5) the State withheld material exculpatory evidence. Post-conviction relief was denied, and this appeal followed. We affirm the denial of post-conviction relief. Specifically, we hold: (1) Stephenson's freestanding claims of error based on his wearing a stun belt at trial were available on direct appeal and are therefore foreclosed in post-conviction proceedings; (2) Because appearing in readily visible restraints is inherently prejudicial, if the issue had been raised on appeal, reversal would have been required unless the State had proved beyond a reasonable doubt that the error did not affect the result as to either guilt or the penalty; (3) Stephenson's claim of ineffective assistance of counsel requires him to establish substandard performance of counsel and a reasonable probability that the result would have been different but for counsel's errors and omissions; (4) Even if Stephenson's trial counsel's failure to object to the belt or to the lack of finding of need for any form of restraint fell below prevailing professional norms, Stephenson has failed to establish a reasonable probability that any such objection would have prevailed; he therefore has not established a reasonable probability that the result of either the guilt or the penalty phases would have changed. (5) In death penalty cases, we are to evaluate claims of newly discovered evidence under the standard established in 2003 by Indiana Code section 35-30-2-9(k), which is

2

whether the previously undiscovered evidence undermines confidence in the conviction or sentence; (6) Because Stephenson's claims of newly discovered evidence largely turn on the credibility of various witnesses and were rejected by the post-conviction court, they do not undermine confidence in Stephenson's convictions or death sentence; (7) Stephenson was not deprived of his right to a fair trial or due process because of the jury's exposure to various extraneous influences; and (8) The post-conviction court's conclusion that Stephenson failed to prove by a preponderance of the evidence that the State suppressed evidence that was material to his guilt or punishment is affirmed. Standard of Review Post-conviction proceedings are civil proceedings that provide defendants the opportunity to raise issues not known or available at the time of the original trial or direct appeal. Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999). Thus, if an issue was known and available but not raised on direct appeal, the issue is procedurally foreclosed. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001). If an issue was raised and decided on direct appeal, it is res judicata. Id. If a claim of ineffective assistance of trial counsel was not raised on direct appeal, that claim is properly raised at a post-conviction proceeding. Id. In post-conviction proceedings, the defendant bears the burden of proof by a preponderance of the evidence. Wallace v. State, 553 N.E.2d 456, 458 (Ind. 1990). We review the post-conviction court's factual findings under a "clearly erroneous" standard but do not defer to the post-conviction court's legal conclusions. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002). We will not reweigh the evidence or judge the credibility of the witnesses; we examine only the probative evidence and reasonable inferences that support the decision of the post-conviction court. Conner, 711 N.E.2d at 1245. I. Use of a Stun Belt at Trial Stephenson contends that his appearance in a stun belt before the jury at his trial violated his federal constitutional rights under the Sixth and Fourteenth Amendments and also violated state law. This claim is asserted as both a freestanding claim of error and a ground for inef-

3

fective assistance of trial counsel. As an initial matter, this Court has ruled that the use of a stun belt is not to be ordered in Indiana courts. Wrinkles v. State, 749 N.E.2d 1179 (Ind. 2001). We agree with Stephenson that if this were an appeal from a trial conducted after Wrinkles was decided and Stephenson had objected to the use of the belt at trial, he would be entitled to a new trial as a matter of state law. In addition, Deck v. Missouri, 544 U.S. 622 (2005), decided after Stephenson's trial and appeal, clarified a number of relevant federal constitutional principles governing the use of restraints. However, Stephenson's trial and direct appeal occurred before Wrinkles and Deck were decided, and there was no objection to the use of the belt at Stephenson's trial. This appeal from the denial of post-conviction relief therefore presents the threshold issue of which, if any, of the claims Stephenson now asserts have been procedurally defaulted and how these issues relate to the claim of ineffective assistance of counsel. A. Some Relevant Settled Principles We think it useful to set out some settled principles of substantive law before addressing these questions. The Supreme Court of the United States has not ruled on the use of a stun belt as a violation of the Federal Constitution, but the Court has given guidance on a number of relevant points. Requiring a defendant to appear in jail garb has long been held to deny due process. Holbrook v. Flynn, 475 U.S. 560, 567 (1986); Estelle v. Williams, 425 U.S. 501, 503 (1976). An objection to jail garb is required before the "compulsion" required for a due process violation is found. Estelle, 425 U.S. at 512-13. In short, jail garb is categorically prohibited by the Fifth and Fourteenth Amendments if the defendant objects. Unlike jail garb, shackling may be imposed, but only if the trial court makes a particularized finding of need in the specific case. This rule has long been in place under the common law. Deck, 544 U.S. at 626-27; Coates v. State, 487 N.E.2d 167, 169 (Ind. Ct. App. 1985). For many years courts have thought this to be a requirement of federal due process. Illinois v. Allen, 397 U.S. 337 (1970); see also Deck, 544 U.S. at 629. Most recently, this doctrine has been held applicable to the penalty phase as well as the guilt phase of a death penalty trial. Deck, 544 U.S. at 627. Deck also made clear, if there had been any doubt, that this rule has "constitutional dimensions" and unnecessary shackling constitutes a denial of due process. Id. at 629, 632. Jail garb and unnecessary shackling are both "inherently prejudicial" and, if proper objection is made, require reversal unless the State establishes "beyond a reasonable doubt that the [shack-

4

ling] error complained of did not contribute to the verdict." Id. at 635 (alteration in original) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). As explained in Deck, three reasons underlie the prohibition on unnecessary shackling. First, visible shackling "undermines the presumption of innocence and the related fairness of the fact-finding process." Id. at 630. Second, shackling can interfere with the defendant's ability to communicate with his lawyer and participate in the defense. Id. at 631. Third, shackles impair the dignity of the judicial process. Id. at 631-32. We have already noted that Indiana state law no longer permits the use of stun belts in Indiana courts, but that rule had not been announced at the time of Stephenson's trial. The prohibition of stun belts is not based solely on the considerations that underlie the prohibition on jail garb. It is also grounded in the perceived effect on the defendant of the threat of imminent high voltage. It thus is not wholly dependent upon the jury's awareness of the belt, and, like jail garb, is "inherently prejudicial." Wrinkles, 749 N.E.2d at 1194. B. Freestanding Claim of Error Stephenson contends that his failure to object to the belt at trial did not preclude him from raising that issue on direct appeal because use of the belt constituted "fundamental error." The parties dispute whether the use of the belt met that standard. That issue is moot insofar as Stephenson seeks to assert the belt as a freestanding claim in this post-conviction proceeding. Because no objection was raised at trial and the issue was not presented on direct appeal, a challenge to the use of the belt is foreclosed in this post-conviction proceeding as a freestanding claim of error, either "fundamental" or otherwise. See e.g., Conner v. State, 829 N.E.2d 21, 25 (Ind. 2005); Stevens, 770 N.E.2d at 756-57; Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). Stephenson argues that the State conceded that the use of the belt was properly before the post-conviction court as a freestanding issue. He bases this contention on the State's proposed findings and conclusions in which the State requested the trial court to find no prejudice from failure to object to the belt. The State cited as its reason for lack of prejudice the fact that the issue was before the post-conviction court. Assuming that a proposed finding can under some circumstances preclude a party from contesting its own finding, a concession as to a conclusion of law is not binding on this Court. See Myers v. State, 233 Ind. 66, 67, 116 N.E.2d 839, 839 (1954); Green v. State, 232 Ind. 596, 597, 115 N.E.2d 211, 212 (1953). Whether the issue of the 5

belt's use was available as a freestanding issue is a question of law. The issue is therefore foreclosed if, as here, it was available at trial and no objection was raised. C. Structural Error In a variant of the claim of fundamental error, Stephenson also contends that the use of the belt constituted structural error that per se requires a new trial. He equates the use of the belt with an impartial judge or wrongful denial of his right to a jury trial. He cites Deck v. Missouri, 544 U.S. 622, 633 (2005) for the proposition that unnecessary restraints "almost inevitably" affect the jury's perception of the defendant and place a "thumb on death's side of the scale" of justice. 1 These contentions were available at trial and on direct appeal and were not preserved. They are therefore available only to the extent they support a claim of ineffective assistance of counsel for failure to present them. D. Ineffective Assistance of Trial Counsel Stephenson raises the failure to object to the belt as establishing ineffective assistance of trial counsel. Stephenson raised no claim of ineffective assistance in his direct appeal. We agree that this claim is therefore properly presented in post-conviction proceedings as one of ineffective assistance of trial counsel for failure to object at trial. See Timberlake, 753 N.E.2d at 597. Under Strickland v. Washington, a claim of ineffective assistance of counsel requires the defendant to show by a preponderance of the evidence that (1) counsel's performance was below the
Stephenson invokes Deck without addressing the point that Deck postdated his trial and direct appeal. The State points out that Stephenson's trial, appeal, and post-conviction proceeding all occurred before Deck was decided in 2005. The State notes that it found no case holding Deck is to be applied retroactively, i.e. applied in post-conviction proceedings to a trial that took place before Deck was handed down. But retroactivity is not the issue here. Stephenson makes no claim that Deck applies retroactively under the principles set forth in Teague v. Lane, 489 U.S. 288 (1989) and Daniels v. State, 561 N.E.2d 487 (Ind. 1990). Daniels adopted for Indiana the same retroactivity principles for a "new constitutional rule of criminal procedure" that apply to federal constitutional rules under Teague. Daniels, 561 N.E.2d at 48889. Under Teague, rules that place "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," and those that require the observance of "procedures that . . . are `implicit in the concept of ordered liberty,'" and "without which the likelihood of an accurate conviction is seriously diminished," may be applied retroactively. 489 U.S. at 311, 313 (internal quotation marks and citations omitted). The only authority addressing the point holds that Deck is not retroactive under Teague. Marquard v. Sec'y for Dep't of Corr., 429 F.3d 1278, 1312 (11th Cir. 2005). The requirement of a finding of necessity before restraints may be used in the penalty phase of a trial does not rise to the level of a procedure that is "implicit in the concept of ordered liberty." Id. (quoting Teague, 489 U.S. at 307); Whorton v. Bockting, 127 S. Ct. 1173, 1184 (2007); see also Schriro v. Summerlin, 542 U.S. 348, 352 (2004) ("This class of rules is extremely narrow, and it is unlikely that any has yet to emerge.").
1

6

objective standard of reasonableness based on "prevailing" professional norms and (2) the defendant was prejudiced by counsel's substandard performance, i.e. there is a "reasonable probability" that, but for counsel's errors or omissions, the outcome of the trial would have been different. 466 U.S. 668, 687, 694 (1984); French v. State, 778 N.E.2d 816, 824 (Ind. 2002); Stevens, 770 N.E.2d at 746; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994). The issues raised by Stephenson's claim of ineffective assistance, therefore, in broad terms are: 1) Was it substandard performance to fail to object to the use of the belt? 2) Was it substandard to fail to object to the absence of an individualized hearing on the need for any restraint? 3) Is a showing that the failure to object produced an "inherently prejudicial" condition of trial sufficient in itself to establish the prejudice prong of Strickland? 4) If an inherently prejudicial condition is shown but is not a per se ground for reversal, does the defendant bear the burden of showing prejudice by the condition or must the State establish lack of prejudice? 5) What standard of proof is required of the party with the burden as to prejudice, and was that standard met? 1. Performance of Counsel The trial record makes no reference to the belt or to the need for restraint. There is no clear statement of the trial court's policy requiring restraint. There is no evidence that Stephenson was obstreperous or disruptive. In short, the record shows nothing to support an individualized determination that Stephenson required any form of restraint at trial, and there is no explanation in the trial record for use of the stun belt or any other restraint. The belt was not mentioned by the parties or the court in Stephenson's direct appeal. a. Failure To Object to the Belt as a Tactical Choice of Trial Counsel The law is clear that counsel's performance is presumed effective. "[T]he defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly

7

deferential." Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind. 2000); see Conner, 711 N.E.2d at 1252. Moreover, as is frequently pointed out: There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Counsel is afforded considerable discretion in choosing strategy and tactics, and these decisions are entitled to deferential review. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Stevens, 770 N.E.2d at 746 (citing Strickland, 466 U.S. at 689-690; Timberlake, 753 N.E.2d at 603; Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001)). The State contends that trial counsel made a tactical decision to allow Stephenson to wear a stun belt. The record does not support this contention. At post-conviction, Anthony Long, one of Stephenson's trial counsel, explicitly stated that he made a conscious decision to allow Stephenson to appear before the jury in a stun belt: "I understood our choices were either [the stun belt] or shackles and that was certainly not an acceptable alternative." Similarly, trial counsel Dennis Vowels testified: Q: Do you recall any discussions with Anthony Long about the benefits of a stun belt as opposed to being shackled? A: I don't recall them, but we probably talked about it. I know we were not going to let him be shackled in front of a jury. I knew that. Q: Would you agree that a stun belt worn under the clothes would be preferable in front of a jury to the handcuffs, the waist and the leg irons? A: Yes. At the time of Stephenson's trial in 1996 and 1997, no Indiana ruling had addressed the use of stun belts. As in Wrinkles, counsel cannot be faulted for selecting the belt over more visible shackles, given that the case law addressing the issue had largely focused on the visibility of the restraint, and not, as Wrinkles later pointed out, on the belt's potential effect on the defendant's demeanor and ability to participate in the defense. Wrinkles, 749 N.E.2d at 1194. Although counsel explained their preference for the belt over shackles, they did not explain why they conceded that any restraint was appropriate and failed to require any finding on the record as to the need for restraint. As explained above, at the time of Stephenson's trial it was wellsettled as a matter of both state law and the requirements of federal due process that no form of

8

visible restraint was permissible without an individualized finding that the defendant presented a risk of escape, violence, or disruption of the trial. Deck, 544 U.S. at 626-27; Coates, 487 N.E.2d at 169. Counsel's unquestioning acceptance of the need for any form of restraint cannot be justified as a tactical decision where the decision was made without awareness of the applicable law favorable to the defendant. Dixon v. Snyder, 266 F.3d 693, 703 (7th Cir. 2001) ("If counsel was unaware of the statute, then his decision not to cross-examine Carlisle cannot be accorded the same presumption of reasonableness as is accorded most strategic decisions because it was not based on strategy but rather on a `startling ignorance of the law.'" (quoting Kimmelman v. Morrison, 477 U.S. 365, 385 (1986))). Finally, the State's claim of a tactical decision does not enjoy the same support it had in Wrinkles. In Wrinkles's case, the penalty, not guilt or innocence, was the only real issue. The decision to challenge the belt arguably fell into the tactical range, balancing the likelihood of success against the risk of alienating the judge by challenging an announced "policy." In Stephenson's case, unlike Wrinkles, guilt was vigorously disputed, so that justification for counsel's omission is weakened, and in any event no such tactical consideration was advanced by counsel in post-conviction. b. Failure To Object to a Visible Restraint as Substandard Performance Even if failure to object to the belt was not justified as a tactical decision, the issue remains whether it was below professional norms to fail to object to the use of any restraint or to the absence of any finding of necessity for restraint. The law regarding use of stun belts was not settled at the time of Stephenson's trial, and counsel are not ordinarily found deficient for failure to anticipate a change in the law. Smylie v. State, 823 N.E.2d 679, 690 (Ind. 2005); Fulmer v. State, 523 N.E.2d 754, 757-58 (Ind. 1988). Under the law at the time of Stephenson's trial, an ineffective assistance claim based on failure to object to restraints required the restraints to be visible. Failure to object to restraints is not substandard performance where the jury is unaware of the restraints. 2 But the Seventh Cir-

See Evans v. Dir. of the Cal. Dept. of Corr., No. C-03-2498 MMC, 2005 U.S. Dist. LEXIS 9360, at *23 (N.D. Cal. 2005) ("No jurors were present because the charges were tried to the court."); State v. DuPree, 820 N.E.2d 560, 566 (Ill. Ct. App. 2004) ("There [was] not a scintilla of evidence that the jury could have been aware of the stun belt."); Walker v. State, 602 S.E.2d 351, 355 (Ga. Ct. App. 2004) (finding the defendant "failed to present any evidence showing the jury would have known he was in custody due to his clothing" and "failed to identify any of the individuals he claims were in the hallway" when he was taken from the elevator to the holding cell); Lytle v. Armontrout, No. 89-0263-CV-W-5-P, 1990 U.S. Dist.

2

9

cuit has held that failure to object to restraints that are "readily visible" is substandard performance of counsel. Roche v. Davis, 291 F.3d 473, 483 (7th Cir. 2002) (quoting Fountain v. United States, 211 F.3d 429, 435 (7th Cir. 2000)). The Seventh Circuit found "unreasonable" 3 our conclusion that counsel was not ineffective for failure to object to shackling and failure to take steps to prevent the jury from viewing the shackles. Id. Although Roche addressed shackling, we think its reasoning is equally applicable to a stun belt. The use of a stun belt, if perceived by the jury, produces all of the results that shackling does. It sends a signal that the defendant may be dangerous and thereby impairs the presumption of innocence; it interferes with the defendant's communication with his attorney; and it has the same effect on the dignity of the process. Indeed, some courts have concluded that a stun belt, if perceived by the jury, "may be even more prejudicial than handcuffs or leg irons because it implies that unique force is necessary to control the defendant." United States v. Durham, 287 F.3d 1297, 1305 (11th Cir. 2002) (quoting State v. Flieger, 955 P.2d 872, 874 (Wash. Ct. App. 1998)). Even if the jury is unaware of the belt, there remain the concerns that a stun belt "could disrupt a different set of a defendant's constitutionally guaranteed rights." Id. First, "[a] stun belt seemingly poses a far more substantial risk of interfering with a defendant's Sixth Amendment right to confer with counsel than do leg shackles." Id. Second, the device poses a greater threat to the defendant's Sixth Amendment and due process rights to be present and participate in his defense because "[i]t is reasonable to assume that much of a defendant's focus and attention when wearing one of these devices is occupied by anxiety over the possible triggering of the belt." Id. at 1305-06. These are in substance the same points emphasized by the majority in Wrinkles in banning the belt under Indiana state law. 749 N.E.2d at 1194. In sum, in the absence of an explanation for counsel's failure to object to a stun belt that is "readily visible," that failure is substandard performance.

LEXIS 2634, at *12 (W.D. Mo. 1990) (finding "no indication that the jury knew of or took into consideration the fact" that the defendant was restrained or in jail garb). Most of these cases dealt with shackles, not a stun belt. 3 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. section 2254(d) (2000), requires that a state court's interpretation of a federal constitutional doctrine be "unreasonable" before the federal court may entertain a petition for habeas corpus based on a challenge to that state court's ruling.

10

c. Was the Belt "Readily Visible?" Whether the belt was "readily visible" is critical to this branch of the inquiry. Roche, 291 F.3d at 483 (quoting Fountain, 211 F.3d at 435). Some courts have used the term "visible" to make the point that shackles or jail garb must be perceived by the jury. See, e.g., id.; Deck, 544 U.S. at 631-32. The broader notion is that it is prejudicial for jurors to be "aware" that a defendant is being restrained or appearing in jail garb. Fountain, 211 F.3d at 435. We see little significance to whether the jurors learned of the belt by seeing the restraint or by being informed of it. In either case the defendant is branded a dangerous individual. The post-conviction court made no specific finding as to the jurors' awareness of the belt. However, the post-conviction record demonstrates that several jurors knew that Stephenson wore the belt during trial and recognized it for what it was. According to one juror's affidavit: During the trial, I became aware that John Stephenson was wearing a stun belt. I could see he had what appeared to be a rectangle shaped box attached to his lower back, underneath his shirt. I had seen a television show sometime previously to being selected for this jury that described what a stun belt was and what its purpose was. I have been hit by 220 volts and know what effect that amount of power has on a person. I believed the stun belt was to control John Stephenson's behavior. Some apparently learned of the restraint from other jurors. A second juror stated in her affidavit: I was aware that John Stephenson was wearing a device that would prevent him from running out of the courtroom. During the trial one of the male jurors mentioned to me that Mr. Stephenson was wearing this device. I was aware that he was wearing something that controlled his behavior. Similarly, a third juror affirmed, "During the trial, I recall that Mr. Stephenson had some type of restraining device on him. I do not recall what the device looked like, or when or where I realized he [was] wearing one." A fourth juror was asked in deposition by Petitioner's counsel, "Did you know that John Stephenson had worn a stun belt through his trial?" The juror responded: I would say, yes, that I did because he wasn't handcuffed, and naturally I assumed that he had that on because there was like a, you know, he wore like a loose shirt, basically like what you have on, loose, and there was a bulge back there in the back, so that's how I knew that. It was not clear that all jurors were aware of the belt. One testified in deposition offered in postconviction proceeding:

11

Q: Were you aware that John Stephenson was wearing a stun belt? Do you know what I mean by that, first of all? A: I was aware of that, and I'm not sure at what time, you know, what point I was aware of that. Q: But you know what I mean-- A: Yes. Q: --by a stun belt? A: Yes, I do. Q: Okay, so go ahead if you hadn't finished your answer. A: Well, I'm not really sure exactly if it was after the trial that, that I heard about that or

Download John M. Stephenson v. State of Indiana.pdf

Indiana Law