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ATTORNEYS FOR APPELLANT Susan K. Carpenter Public Defender of Indiana Hope Fey Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

In the

Indiana Supreme Court
_________________________________ No. 48S02-0503-PC-127 KENYAN L. TAYLOR, Appellant (Petitioner below), v. STATE OF INDIANA, Appellee (Respondent below). _________________________________ Appeal from the Madison Superior Court, No. 48D03-9302-CF-70 The Honorable Thomas J. Newman, Jr., Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 48A02-0402-PC-133 _________________________________ January 17, 2006 Sullivan, Justice.

Kenyan Taylor was convicted of murder as Mose Bowling's accomplice. Taylor's lawyer did not ask that the jury be told that in order for Taylor to be guilty as an accomplice, the jury had to find that Bowling had killed "knowingly or intentionally." Because of this, the Court of Appeals reversed Taylor's conviction. Following authority from several other jurisdictions, we

hold that a defendant can be guilty as an accomplice even if the principal does not act "knowingly or intentionally."

Background

Kenyan Taylor and Mose Bowling went to Walter Anderson's home to demand money that Anderson allegedly owed Taylor. An argument ensued and Anderson was shot. Anderson subsequently died from a gunshot wound that penetrated his heart. Taylor was charged with and convicted of murder and sentenced to a term of 60 years imprisonment.

Taylor appealed directly to this Court, contending, among other things, that there was insufficient evidence to support his murder conviction. Taylor v. State, 676 N.E.2d 1044, 1046 (Ind. 1997). Finding that the evidence "clearly support[ed]" the jury's conclusion that Taylor was guilty of murder beyond a reasonable doubt, we affirmed Taylor's conviction. Id. at 1047.

Taylor then sought post-conviction relief from his murder conviction and sentence, arguing, among other things, that he was denied effective assistance of trial counsel because counsel failed to object to accomplice liability instructions that Taylor contended were incorrect. Taylor also argued that he was denied effective assistance of appellate counsel because counsel failed to raise all meritorious claims. conviction relief. The post-conviction court denied Taylor's petition for post-

Taylor appealed the denial of post-conviction relief to the Court of Appeals, raising the following six issues: (1) whether he was denied a fair trial and the due process of law to which he was entitled when the state pursued an accomplice liability theory at the end of his original trial; (2) whether the content and effect of the accomplice liability instructions given at his original trial were such as to entitle him to have his conviction vacated; (3) whether he was denied the effective assistance of trial counsel to which he was entitled when counsel did not (a) object to instructions and a verdict form permitting conviction without a unanimous verdict, (b) object to an accomplice liability instruction on the basis that it omitted an essential element of the offense, and (c) tender a lesser-included accomplice liability instruction; (4) whether his sentence of 60 2

years was manifestly unreasonable; (5) whether he was denied the effective assistance of appellate counsel to which he was entitled because appellate counsel did not claim on direct appeal that (a) the trial court had erred in allowing the State to introduce an accomplice liability theory at the end of the trial without notice to the defense, (b) it had been fundamental error for the trial court to give improper accomplice liability instructions, and (c) Taylor's sentence was manifestly unreasonable; and (6) whether the post-conviction court committed reversible error by excluding an affidavit that Taylor contended constituted newly-discovered evidence.

The Court of Appeals found that Taylor was entitled to post-conviction relief because he was denied effective assistance of trial counsel when counsel did not oppose the accomplice liability instructions given at his original trial. Taylor v. State, 820 N.E.2d 691, 695-96 (Ind. Ct. App. 2005).

The State petitioned to, and we granted, transfer. Taylor v. State, 831 N.E.2d 741 (Ind. 2005). We now affirm the judgment of the post-conviction court, except as to sentencing, and remand to the trial court for a new sentencing order.

Discussion

Upon denial of post-conviction relief, Taylor raised the issues set forth above. Because the Court of Appeals found one of his claims of ineffective assistance of trial counsel to be dispositive, it did not address the other issues. Because we have granted transfer, all of the issues raised by Taylor are before us as if this appeal had initially been filed in this Court. See Ind. Appellate Rule 58(A).

I

Taylor argues that the post-conviction court improperly excluded newly-discovered evidence. At Taylor's trial, Shaun Beasley testified that he heard Taylor state, "If he don't have my money by twelve o'clock, I'm gonna kill `em." Tr. 933. At the post-conviction hearing, Beasley was called to testify on Taylor's behalf, but Beasley refused on Fifth Amendment grounds. Tay3

lor then tendered an affidavit signed by Beasley, which the court refused to admit on grounds of lack of relevance and lack of proper foundation. In the affidavit, Beasley claimed that he did not hear Taylor make the statement. Taylor contends that this affidavit was newly-discovered evidence requiring a new trial.

This Court has enunciated nine criteria for admission of newly-discovered evidence. [N]ew evidence will mandate a new trial only when the defendant demonstrates that: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial. Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000) (citing Fox v. State, 568 N.E.2d 1006, 1007 (Ind. 1991)). "This Court analyzes these nine factors with care, as `the basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized.'" Id. (quoting Reed v. State, 508 N.E.2d 4, 6 (Ind. 1987)). The burden of showing that all nine requirements are met rests with the petitioner for post-conviction relief. Webster v. State, 699 N.E.2d 266, 269 (Ind. 1998).

Here, Taylor has not shown that this affidavit meets all the criteria. Most notably, this affidavit would be used merely to impeach Beasley's trial testimony. Taylor argues that this evidence is not merely for impeachment because "its tendency would be to obliterate or destroy the previous evidence that Beasley gave at the trial." Br. of Petitioner-Appellant at 48 (quotations omitted). Taylor also states that the affidavit "was relevant because it tended to show that Beasley was lying at the trial." Br. of Petitioner-Appellant at 47. We do not see how using the affidavit to show that Beasley was lying at trial would not be impeachment. 1

"Impeachment" is defined as "[t]he act of discrediting a witness, as by catching the witness in a lie or by demonstrating that the witness has been convicted of a criminal offense." Black's Law Dictionary 768 (8th ed. 2004) (emphasis added).

1

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Taylor also claims that this affidavit would likely produce a different result at a new trial. He argues that "[t]hat testimony was a major piece of evidence at the trial because it supported the prosecution theory that Taylor shot Anderson `knowingly or intentionally' as required by the murder statute." Id. However, as we have stated before, there was "overwhelming evidence" of Taylor's guilt. Taylor v. State, 676 N.E.2d 1044, 1047 (Ind. 1997). And although this affidavit might have weakened the State's case, Taylor has not shown that it is enough to make it probable that a different result would be produced at a new trial.

Because Taylor has failed to show that this affidavit "is not merely impeaching" and that "it will probably produce a different result at retrial," the affidavit does not qualify as newlydiscovered evidence, and the post-conviction court was within its discretion to exclude it.

II

Taylor raises in his petition for post-conviction relief the following issues that were available on direct appeal: (1) whether he was denied a fair trial and the due process of law to which he was entitled when the state pursued an accomplice liability theory at the end of his original trial; (2) whether the content and effect of the accomplice liability instructions given at his original trial were such as to entitle him to have his conviction vacated; and (3) whether his sentence of 60 years was manifestly unreasonable.

The purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at the time of the original trial and appeal. Grey v. State, 553 N.E.2d 1196, 1197 (Ind. 1990). When an issue is known and available but not raised on direct appeal, it is waived for post-conviction proceedings. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839 (2002).

Because these three issues are matters dealing with the original trial that were known and available on direct appeal, and Taylor failed to raise them at that time, he has waived the opportunity to raise them on his petition for post-conviction relief.

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III

Taylor argues that his trial counsel rendered ineffective assistance (a) by not objecting to the instructions and verdict form permitting his conviction without a unanimous verdict, (b) by failing to object to an instruction on the basis that it omitted an essential element of the offense, and (c) by failing to tender a lesser-included accomplice liability instruction.

The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution. "The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results." Strickland v. Washington, 466 U.S. 668, 685 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. When called upon to find whether there was ineffective assistance of trial counsel, a post-conviction court uses the analysis outlined by the Court in Strickland:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687. A petitioner's failure to satisfy either prong will cause the ineffective assistance of counsel claim to fail. See Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999).

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A

First, Taylor argues that his trial counsel rendered deficient performance by not objecting to the instructions and verdict form "permitting [his] conviction without a unanimous verdict." Br. of Petitioner-Appellant at 35. In the final instructions, the trial court stated, "Your verdict must represent the considered judgment of each juror. You must all agree on your verdict." Tr. at 241. The court also instructed: "The foreperson will preside over your deliberations and must sign and date the verdict[s] to which you all agree. Do not sign any verdict form for which there is not unanimous agreement." Tr. at 242.

As will be discussed in greater detail in Part III-B, infra, the State pursued two theories on how Taylor could be guilty of murder--either Taylor killed Anderson or Taylor aided and abetted Bowling to kill Anderson. Our opinion on direct appeal recited that seven of the jurors said after the trial that they did not believe that Taylor had been the actual shooter but had found him guilty of murder based upon the trial court's instructions regarding accomplice liability. Taylor v. State, 676 N.E.2d 1044, 1047 (Ind. 1997). Taylor argues that the jury should have been instructed that in order to convict him of murder, the verdict had to be unanimous on one of the two prosecution theories. To support this proposition, Taylor cites Townsend v. State, 632 N.E.2d 727 (Ind. 1994), and Castillo v. State, 734 N.E.2d 299 (Ind. Ct. App. 2000), summarily aff'd, 741 N.E.2d 1196 (Ind. 2001).

In Townsend, the defendant had been charged in a single count indictment with battery. The indictment read that the defendant "did knowingly or intentionally touch another person, towit: Sky Turney and Brian Turney, who were less than 13 years of age, in a rude, insolent, or angry manner; and did thereby commit Battery, a Class `D' Felony." 632 N.E.2d at 729. The defendant had pled not guilty. In both the preliminary and final jury instructions, the trial court instructed on the essential elements of the charged crime as follows: "To convict the defendant, the State must have proved each of the following elements: The defendant (1) knowingly or intentionally (2) touched Sky Turney and Brian Turney (3) in a rude, insolent, or angry manner." Id. The court then gave four verdict forms with a standard final verdict instruction:

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We, the Jury, find [appellant] . . . guilty of . . . Battery against Sky Turney . . . . We, the jury, find [appellant] . . . not guilty of . . . Battery against Sky Turney . . . . We, the jury, find [appellant] . . . guilty of . . . Battery against Brian Turney . . . . We, the jury, find [appellant] . . . not guilty of . . . Battery against Brian Turney . . . . Id. The jury rendered a verdict of guilty as to Sky and one of not guilty as to Brian. On appeal, one of the defendant's arguments was that he was wrongly subjected to two separate battery charges and convictions, where there was only one battery count. This Court found that "[t]he element instruction, quoted above, specifies the elements of the crime upon which the State bore the burden of proof and upon which a guilty verdict was required to rest. It required the State to prove a touching of both children." Id. at 730-31. It went on to hold that "[t]he trial court's verdict form instruction is diametrically opposed to the element instruction. It relieved the State of the need to prove the commission of a battery upon both children as charged." Id. at 731.

In Castillo, the State charged the defendant with one act of dealing in cocaine, even though there was evidence that the defendant committed two separate acts of dealing in cocaine. The charge read that the defendant "did knowingly deliver cocaine, pure or adulterated, within one thousand (1000) feet of school property . . . ." 734 N.E.2d at 304. Also, the prosecutor told the jury in his closing argument that "he had proved [that Castillo dealt in cocaine] twice but that they only had to find it either happened at Garcia's home or later at Castillo's home." Id. On appeal, the defendant argued, among other things, that "the trial court should have instructed the jury that they were required to unanimously agree upon which act supported the conviction for dealing in cocaine." Id. at 303. The Court of Appeals, vacating the defendant's conviction, held:

The trial court did not instruct the jurors that they were required to render a unanimous verdict regarding which dealing crime Castillo committed. In fact, the trial court, in ruling on Castillo's continuing objection to the evidence of the earlier dealing crime, stated that because there was no specificity as to either of the dealing counts, the prosecution "could prove it as to one or the other . . . or 8

both." It is possible, given these facts, that some jurors believed that Castillo committed the earlier dealing crime at Garcia's home while other jurors believed that Castillo committed the dealing violation at his home later that same day. Consequently, it is possible that the jury's verdict of guilty regarding the charge of dealing in cocaine was not unanimous. Id. at 304-05.

Taylor's claim is notably different than those in Townsend and Castillo. In Townsend, we held that the indictment and jury instructions required that the State prove that the defendant touched both children in order for him to be convicted of battery as charged. The issue there was that the State was required to prove that the defendant committed the crime with which he was charged. Taylor was charged with the murder of Walter Anderson, and the relevant part of the instructions read: "To sustain the charge of murder, the State must prove . . . that Kenyan L. Taylor did (1) knowingly or intentionally, (2) kill, (3) Walter Anderson, or that Kenyan L. Taylor (1) knowingly or intentionally aided, induced or caused another person to (2) kill, (3) Walter Anderson." Tr. at 1282-83 (emphasis added). Here, the State must prove that Taylor murdered Anderson as charged, and the instructions allowed the jury to conclude that the State met its burden of proof on either theory; the State need not have proved them both.

In Castillo, the defendant was charged with only one count of dealing in cocaine, but the jury was presented with two entirely separate crimes from which it had to decide whether the defendant was guilty. The Court of Appeals determined that the jury was required to agree unanimously on which of the two crimes the defendant was guilty in order for the defendant to be convicted. The jury in Taylor's case, however, had to determine only whether Taylor committed the one act of murder. There were two different theories upon which the jury could have found that Taylor committed this one act--either as the principal or an accomplice. But "the Indiana statute governing accomplice liability does not establish it as a separate crime, but merely as a separate basis of liability for the crime charged." Hampton v. State, 719 N.E.2d 803, 807 (Ind. 1999). It is important to note that Taylor would have been equally guilty of murder whether he acted as the principal shooter or merely an accomplice. Johnson v. State, 687 N.E.2d 345, 349 (Ind. 1997). See Ind. Code

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