ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Steve Carter Susan K. Carpenter
Attorney General of Indiana Public Defender of Indiana
Timothy W. Beam Laura L. Volk
Deputy Attorney General Deputy Public Defender
Indianapolis, Indiana Kathleen Cleary
Deputy Public Defender
Barbara S. Blackman
Special Assistant to the Public Defender
APPEAL FROM THE MARION SUPERIOR COURT, CRIMINAL DIVISION
The Honorable Patricia Gifford, Judge
Cause No. 49G04-9608-CF-112831
March 6, 2003
Walter Dye was convicted of three counts of murder and the jury recommended
the death penalty. Following a subsequent sentencing hearing, the trial court sentenced
the defendant to death. We affirmed his convictions and sentence on appeal.
Dye v. State, 717 N.E.2d 5, 22 (Ind. 1999). The defendant
thereafter petitioned for post-conviction relief, and the post-conviction court rejected most of his
claims except that of juror misconduct. As to this latter claim the
post-conviction court vacated both the defendant's death sentence and his convictions. The post-conviction
court concluded that a juror's omissions and false responses on her jury questionnaires
and during voir dire amounted to gross misconduct that probably harmed the defendant,
denying him a fair trial. The State appeals this determination, and Dye
cross-appeals the post-conviction court's rejection of his other claims. We affirm the
Either the State or the defendant may appeal a post-conviction decision, and in either case our standard of review is governed by Indiana Trial Rule 52(A):
On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
The State's appeal is determined using the "clearly erroneous" standard. It is
a review for sufficiency of the evidence, and we neither reweigh the evidence
nor determine the credibility of witnesses but consider only the probative evidence and
reasonable inferences supporting the judgment.
Moore v. State, 771 N.E.2d 46, 50
(Ind. 2002). We reverse only on 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).
In reviewing the State's claim that the post-conviction court erroneously granted relief
to the defendant, "the inquiry is essentially whether there is any way the
trial court could have reached its decision." Id. at 1120 (emphasis in
The State contends that the post-conviction court clearly erred in concluding that a new trial was required by its findings that Jackie Gunn, a juror during both the guilt phase and penalty phase of the defendant's trial, concealed her and her family's criminal histories, her history as a victim of a crime, and her disposition to impose the death penalty. The State argues that the inaccuracies in Gunn's questionnaire answers were unintentional, her victimization was dissimilar and remote, and that she repeatedly affirmed that she could be a fair juror and would decide the case on the evidence presented.
The prospective jurors were sent two questionnaires in advance of trial, which Gunn received and completed. In one, the prospective jurors were requested to answer various questions including the following:
25. Have you or anyone in your immediate family ever appeared as a witness in any court case, before a grand jury, or any type of proceeding?
26. Have you or any family member ever been a
27. Have you or any family member ever been a
28. Have you or any family member ever been charged with a
41. Do you feel the death penalty should be mandatory for any particular
type of crime?
44. If you believed that a person was guilty of the intentional murder
of another person, would you
automatically[:] vote for the death penalty; vote
against the death penalty; dont know
Petitioners Exhibit 11(A) (Gunn Questionnaire). In another questionnaire, the prospective jurors were
10. Have you or any member of your immediate family ever appeared in court for any reason (other than traffic)
11. Have you or any member of your immediate family ever been
a victim of a crime?
In answering the questionnaires, Jackie Gunn answered each of the above questions negatively, indicating that neither she nor any members of her family had ever appeared as a witness or been in court for any other reason, or been the victim of, witness to, or charged with a crime. She also stated in her juror questionnaire that she did not feel the death penalty should be mandatory for any type of crime, but would vote automatically for the death penalty if a person were found guilty of intentional murder.
During voir dire, the trial court asked the prospective jurors if they believed everyone who commits murder should be given the death penalty, and Gunn did not respond. Trial Record at 863-65. Also during voir dire, defense counsel asked: "Anybody have any contact with the prison system as a worker, or even somebody in your family that's been in prison? And I don't mean the county jail, I mean the Department of Corrections?" Id. at 1639. Mrs. Gunn responded, "I had a brother in prison, and he's deceased now." Id. When asked, she said that she had never visited her brother, who had been incarcerated in California. Id. She was not asked nor did she volunteer any further details. Gunn was seated on the jury.
At the post-conviction review hearing, however, Gunn testified that her brother had been convicted of two homicides in California, was sentenced to death, and died while incarcerated. P.C.R. Tr. at 17-18. Members of her family testified on his behalf during the penalty phase of his capital case. Gunn testified that she believed her brother deserved the death penalty because a person should receive the death penalty for killing someone. Id. at 18. In her testimony, she explained that she did not mention her brother or his death sentence in her questionnaire because "at the time I didnt think it was anybody's business." Id. at 22. Two of Gunn's siblings had been arrested, but she did not mention that in her questionnaire because, "I didn't think about none of them." Id. She did not disclose her own conviction for operating while intoxicated because she "didn't even think about it." Id. When she was two or three years old she was raped by an uncle, a fact that she revealed in her post-conviction testimony but did not disclose on her questionnaire because she "tried to forget it." Id. Her uncle was never charged for the offense. Gunn admitted in her post-conviction testimony that she thought about the rape during the defendant's trial. Id. at 20.
The State argues that because the defendant failed to establish that Gunn intentionally withheld the information regarding her and her family's criminal histories, her omissions do not amount to gross misconduct and probable harm. Furthermore, the State urges that Gunn's failure to disclose that she had been raped as a young child was not gross misconduct because Gunn also stated that she would be able to be an impartial juror and appropriately evaluate the evidence, and because any bias Gunn might have had because of being raped "is too remote and attenuated to sustain a reasonable degree of probability that she was biased." Br. of Appellant at 10. The State also claims that Gunn's failure to respond to the court's questions in voir dire regarding the automatic imposition of the death penalty does not amount to gross misconduct because the defendant waived consideration of the issue by failing to challenge Gunn for cause based on her inconsistent responses. The State also asserts that there is no evidence that at the time of the defendant's trial she was an "automatic death penalty juror." Id. Finally, the State argues that there is a considerable societal interest in the finality of criminal proceedings, and that the integrity of the jury system requires us to reverse the post-conviction court's judgment. Id.
The United States Supreme Court articulated a particularized test for determining whether a new trial is required due to juror deceit during voir dire or on jury questionnaires in McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct 845, 78 L.Ed.2d 663 (1984). The two-part test states that in order to obtain a new trial, the defendant "must 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." Id. at 556, 104 S.Ct. at 845, 781 L.Ed.2d at 671. The juror's incorrect response in McDonough was an honest mistake, but the test applies equally to deliberate concealment and to innocent non-disclosure. See, e.g., Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir. 1995); United States v. Langford, 990 F.2d 65, 68 (2d Cir. 1993); Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1141-42 (7th Cir. 1992). McDonough was a civil case, but it has been applied on federal habeas review. See Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir. 1998).
In Warner v. State, 773 N.E.2d 239 (Ind. 2002), we confronted a claim that juror misconduct in a criminal case warranted a new trial and noted:
Generally, proof that a juror was biased against the defendant or lied during voir dire entitles a defendant to a new trial. A defendant seeking a new trial because of juror misconduct must show gross misconduct that probably harmed the defendant. We review the trial judge's determination on these points for abuse of discretion.
Id. at 246 (included citations omitted); see also Allen v. State, 749 N.E.2d
1158, 1164 (Ind. 2001) ("juror misconduct will warrant a new trial only when
the misconduct is both 'gross' and 'harmed the defendant' "). The trial
court in Warner concluded that the juror did not deliberately withhold information, that
she was not biased, and that the defendant received a fair trial.
On appeal, we found no abuse of discretion, declined to find gross misconduct,
and concluded that there was "very little likelihood that the juror's omitted response
in any way affected the verdict." Warner, 773 N.E.2d at 247.
In contrast, the post-conviction court here concluded that juror Gunn made omissions and false statements on her jury questionnaires and during voir dire, that those responses amounted to gross misconduct, and probably harmed the defendant by denying him a fair trial. These determinations present mixed issues of fact and law. We do not defer to the post-conviction court's determinations of law, but we do accept its factual findings unless they are "clearly erroneous." Conner v. State, 711 N.E.2d 1238, 1245 (Ind. 1999).
P.C.R. Tr. at 647.
The State argues that Gunn's questionnaire responses relating to her conviction for driving while intoxicated and her siblings' arrests do not amount to gross misconduct. As to Gunn's questionnaire response deliberately concealing that her brother had been convicted and sentenced to death in California, the State argues that she corrected the omission during jury selection by stating that she had a brother in prison in California. It is correct that Gunn truthfully answered what she was asked on voir dire. Although she did not volunteer her brother's death sentence, the questions asked of her did not seek this information. Jurors cannot be expected to answer questions they are not asked, no matter how relevant the answers may be to the lawyers and the trial court. While Gunn's voir dire answers may have been literally truthful, however, this does not excuse the fact that her brother's prior convictions and death sentence were intentionally obscured by her deliberate dishonesty in responding to the questionnaire regarding family criminal charges. The post-conviction court did not err in finding this to be gross misconduct.
P.C.R. Tr. at 647.
The State raises Williams v. State, 417 N.E.2d 328 (Ind. 1981) in support of its argument that Gunn's rape was too remote and attenuated from the crimes charged and evidence presented at trial to establish that Gunn might be biased. In Williams, we affirmed the decision of the trial court to reject the defense's motion to strike a juror for cause where the juror had been a victim of a burglary or a robbery, and the defendant was on trial for burglary and robbery. In the present case, while the defendant's convictions did not include rape, evidence was presented at his trial that one of the victims was found laying partially undressed in a position highly suggestive of sexual assault, and a semen-stained washcloth was found near her body. Noting that the State did not charge that the victim was murdered in the course of a sexual assault, the post-conviction court nevertheless found that "a reasonable inference of sexual activity could be drawn from the evidence." Appellant's App. at 811. The court also found that Gunn's failure to disclose that she had been a victim of a crime "deprived the state and the Defendant of the opportunity to determine upon voir dire whether these experiences would have impacted upon her verdict or recommendation." Id. The post-conviction court's findings on this issue are not clearly erroneous.
Appellant's App. at 811.
In our review of the State's claim that the post-conviction court's findings are clearly erroneous, we are cognizant that Judge Gifford, who presided in both the original trial and the post-conviction hearing, was in an exceptional position to assess not only the weight and credibility of the factual evidence, but also the probable impact of the alleged juror misconduct, including whether it deprived the defendant of a fair trial. Because the court's findings are mixed questions of law and fact, we consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. State v. Holmes, 728 N.E.2d 164, 168-69 (Ind. 2000); Spranger, 650 N.E.2d at 1119. Upon this review, we do not find clear error.
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." Br. of Appellant at 10. 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. In the absence of manifest indications of material discrepancies appearing in the record, jurors should not be subjected to post-conviction investigation on the mere possibility that one or more of their questionnaire or voir dire responses may have been inaccurate. In the present case, however, the probability of Gunn's misconduct was apparent from inconsistencies between her voir dire answers and her questionnaire responses. These facial variances justified further investigation. We cannot permit our interests in finality and privacy to totally foreclose the presentation of such resulting evidence to demonstrate that gross juror misconduct undermined the defendant's right to a fair trial.
On cross-appeal, the defendant asserts error by the post-conviction court regarding: (1) whether the State suppressed material evidence, (2) whether the death-penalty information was defective, (3) whether Dye received ineffective assistance of trial counsel, (4) whether he received ineffective assistance of appellate counsel, and (5) whether the State interfered with trial counsel's representation. Br. of Appellee at 11. Because we are affirming the post-conviction court's judgment reversing the defendant's sentence and convictions on grounds of juror misconduct, these issues are moot.
We affirm the judgment of the post-conviction court.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.