ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Jeffrey A. Modisett
Public Defender of Indiana Attorney General of Indiana
Victoria Christ Chris Worden
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
DEMETRIUS TAYLOR, ) Defendant-Appellant, ) ) v. ) 49S02-9810-PC-542 ) STATE OF INDIANA, ) Plaintiff-Appellee. ) ________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Ruth D. Reichard, Judge Cause No. 49G02-9001-CF-014491_________________________________________________
On Petition To Transfer
criminal confinement, a class B felony;See footnote
and burglary, a class B felony.See footnote
appealed, and the Court of Appeals affirmed in a memorandum decision. The defendant
thereafter sought post-conviction relief, which was denied, and the defendant appealed.
The Court of Appeals reversed. Taylor v. State, 699 N.E.2d 270 (Ind. Ct. App. 1998).
We granted the State's petition to transfer.
On transfer, we review the claims as presented to the Court of Appeals. Ind. Appellate Rule 11(B)(3). We will affirm a denial of post-conviction relief unless the defendant establishes that the evidence is without conflict and, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. Woods v. State, 701 N.E.2d 1208, 1210 (Ind. 1998). Although conclusions of law receive no deference on appeal, id., as to factual matters, we examine only the probative evidence and reasonable inferences that support the post-conviction court's determination and do not reweigh the evidence or judge the credibility of the witnesses, Butler v. State, 658 N.E.2d 72, 75 (Ind. 1995); Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994).
In this appeal from the denial of post-conviction relief, the defendant seeks relief on two grounds. He first alleges that a deputy prosecuting attorney and a state's witness improperly commented on his silence after he was arrested and given Miranda warnings. Second, he contends that his sentences for both rape and criminal confinement violate the
federal and state Double Jeopardy Clauses. The defendant asserts that these two grounds
each constitute fundamental error and, alternatively, that they result from the ineffective
assistance of appellate counsel.
The post-conviction court determined that the issue regarding comment on post- arrest silence, to the extent that it was raised on direct appeal as a matter of prosecutorial misconduct, was barred by the doctrine of res judicata, and that, to the extent that it may not have been raised on direct appeal as a violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1975), it was procedurally defaulted and does not constitute fundamental error. As to the double jeopardy claim, the post-conviction court addressed the merits, finding that the victim's trial testimony clearly established circumstances showing a confinement beyond that inherent in the force used to effectuate the rape, and concluded that the two convictions did not violate double jeopardy principles. The post- conviction court also concluded that the defendant did not receive ineffective assistance of appellate counsel.
with the lieutenant or anyone else and instructed the jury to disregard the offensive
question. Record at 452. As to the other claimed incidents, objections were overruled.
In his direct appeal, these instances were presented to support a claim of prosecutorial
misconduct, but the defendant's appellate counsel did not specifically claim a Doyle
violation in the State's attempts to use his post-arrest, post-Miranda silence to impeach
his testimony that the victim had consented to sexual intercourse. In the post-conviction
proceedings, the defendant asserted that the State's attempts to use his post-Miranda
silence to impeach his consent defense denied him the constitutional rights guaranteed by
the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution.See footnote
He argues that
this constitutes fundamental error and thus should not be subject to procedural default for
his failure to assert the claim on direct appeal.
A fundamental error is a substantial, blatant violation of basic principles of due process rendering the trial unfair to the defendant. Baird v. State, 688 N.E.2d 911, 917 (Ind. 1997); Collins v. State, 567 N.E.2d 798, 801 (Ind. 1991); Wilson v. State, 514 N.E.2d 282, 284 (Ind. 1987). A Doyle claim may constitute fundamental error. Wilson, 514 N.E.2d at 284. However, demonstrating the denial of any specific constitutional right does not alone resurrect a forfeited claim. Baird, 688 N.E.2d at 917. See also
Brady v. State, 575 N.E.2d 981, 987 (Ind. 1991) (right to meet witnesses face to face);
Brockway v. State, 502 N.E.2d 105, 108 (Ind. 1987) (admission of defendant's statement
upon arrest); Reynolds v. State, 460 N.E.2d 506, 508 (Ind. 1984) (right to be present
when trial court communicates with deliberating juror); Crosson v. State, 274 Ind. 247,
249, 410 N.E.2d 1194, 1195 (1980) (defendant's right not to testify); and Malo v. State,
266 Ind. 157, 162, 361 N.E.2d 1201, 1204-05 (1977) (alleged improper comment upon
Fifth Amendment privilege to remain silent).
We have emphasized the narrow applicability of the fundamental error doctrine. See, e.g., Coleman v. State 703 N.E.2d 1022, 1036 (Ind. 1998) (applies to only the most blatant denials of elementary due process); Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998) (available only when there are blatant violations of basic and elementary principles of due process, and the harm or potential for harm cannot be denied); Stevens v. State, 691 N.E.2d 412, 420 n.2 (1997) (should be a rare, rather than merely an alternative, claim); Barany v. State, 658 N.E.2d 60, 64 (Ind.1995) (it must be so prejudicial to the rights of a defendant as to make a fair trial impossible). This Court recently directed:
[W]e view this exception [the fundamental error doctrine] as an extremely narrow one, available only when the record reveals clearly blatant violations of basic and elementary principles [of due process], and the harm or potential for harm [can]not be denied. Warriner v. State, 435 N.E.2d 562, 563 (Ind.1982). While concerns over due process do sometimes merit invocation of a fundamental error exception to the contemporaneous objection rule on direct appeal, we think its availability as an exception to the waiver rule in post-conviction proceedings is generally limited to those circumstances we set forth in Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985): [D]eprivation of the Sixth Amendment right to effective assistance of counsel, or . . . an issue demonstrably unavailable to the petitioner at the time of his [or her] trial and direct appeal.
presented on direct appeal, but was first asserted in the defendant's petition for post-
conviction relief. With our opinion today in Richardson v. State, --- N.E.2d --- (Ind.
1999), this Court, confronting a body of case law characterized by substantial
inconsistencies and seeking to synthesize common elements, formulated a new
methodology for analysis of claims under the Indiana Double Jeopardy Clause. We find
that this formulation constitutes a new constitutional rule of criminal procedure, and thus
is not available for retroactive application in post-conviction proceedings. Daniels v.
State, 561 N.E.2d 487, 489 (Ind. 1990).See footnote
The defendant also contends that his appellate counsel's failure to raise his double jeopardy claim on direct appeal constitutes ineffective assistance of counsel. We disagree. As noted above, considering appellate counsel's performance in its totality, we find that it did not fall below an objective standard of reasonableness under prevailing professional norms.
We further find no fundamental error to avoid the application of procedural default resulting from the defendant's failure to claim any violation of the Indiana Double Jeopardy Clause in his direct appeal.See footnote 7 The facts adduced at trial demonstrate that the defendant, carrying a knife, was waiting in the victim's apartment when she entered; that
he forced her at knife-point into her bedroom, where he had intercourse with her, all the
while using the knife to control her behavior. Afterwards, still wielding the knife, he led
her around the apartment, looking for money or other valuables and threatening her about
calling the police. Based upon this evidence, there was a clear basis for convicting the
defendant for a separate, independent confinement after the rape. We find neither a clear,
blatant violation of basic and elementary principles of due process nor resulting harm.
likely that the Doyle claim would have been denied either on its merits or as harmless beyond a reasonable doubt.
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