Armstrong v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Karen M. Freeman-Wilson

Public Defender of Indiana Attorney General of

Indiana

Chris Hitz-Bradley Janet L. Parsanko

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

In The

INDIANA SUPREME COURT

STEVEN ARMSTRONG ) Supreme Court No.

Defendant-Appellant, ) 45S03-0010-PC-564

)

v. ) Court of Appeals No.

) 45A03-0001-PC-28

STATE OF INDIANA )

Plaintiff-Appellee. )

________________________________________________

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Clarence D. Murray, Judge[1]

Cause No. 45G02-9403-CF-60

________________________________________________

On Petition to Transfer

May 21, 2001

DICKSON, Justice

Steven Armstrong's murder conviction was affirmed in 1996 by the

Court of Appeals in a memorandum decision. When he filed a petition for

post-conviction relief in 1999, the post-conviction court applied the

doctrine of laches to bar consideration of his petition. The Court of

Appeals affirmed in a memorandum decision. We granted transfer, and we now

consider Armstrong's appeal anew and hold that laches does not bar

consideration of his petition for post-conviction relief.

The equitable doctrine of laches operates to bar consideration of the

merits of a claim or right of one who has neglected for an unreasonable

time, under circumstances permitting due diligence, to do what in law

should have been done. Twyman v. State, 459 N.E.2d 705, 712 (Ind. 1984).

For laches to apply, the State must prove by a preponderance of the

evidence that the petitioner unreasonably delayed in seeking relief and

that the State is prejudiced by the delay. Williams v. State, 716 N.E.2d

897, 901 (Ind. 1999). For post-conviction laches purposes, prejudice

exists when the unreasonable delay operates to materially diminish a

reasonable likelihood of successful re-prosecution. Stewart v. State, 548

N.E.2d 1171, 1176 (Ind. 1990).

Because the State had the burden of proving laches as an affirmative

defense, Armstrong is not appealing from a negative judgment, and the

applicable standard of review requires that we affirm unless we find that

the judgment was clearly erroneous. Ind.Trial Rule 52(A); Spranger v.

State, 650 N.E.2d 1117, 1119 (Ind. 1995). This is a review for sufficiency

of evidence. Estate of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind.

1994). Without reweighing the evidence or assessing the credibility of

witnesses but rather looking only to the evidence and reasonable inferences

favorable to the judgment, we will affirm if there is probative evidence to

support the post-conviction court's judgment. Williams, 716 N.E.2d at 901;

Lacy v. State, 491 N.E.2d 520, 521 (Ind. 1986).

Armstrong does not challenge the finding that the three-year delay

between the conclusion of his direct appeal and the filing of his petition

for post-conviction relief was unreasonable. He contends, however, that

the post-conviction evidence was insufficient to prove resulting prejudice

to the State. The State's laches claim is based upon its contention that

it has suffered prejudice from the delay "because the State's eyewitness to

the murder, Anthony Moton, is now outside of the jurisdiction," Br. of

Appellee at 5-6, and that "[w]ithout the live testimony of Moton, the

State's ability to successfully present a case against Armstrong is

materially diminished." Id. at 8. The State also argues that other

witnesses, William Riley and Claretha Smith, would not likely now provide

testimony favorable to the State.

The judgment of the post-conviction court was based on the following

findings:

Regarding the prejudice to the State, while Mr. Riley is

available as a witness his credibility is tainted from the get-go.

He's got a deal that was offered to him, so his testimony is purchased

by the state. The gun and drug charges from the Feds would not be

admissible as an Ashton offense. And it would appear that the pending

case also would not be admissible as a drug charge – not pending, the

one that he is currently serving time on. However, because he is

serving time currently, it may well be that he is not cooperative with

the state, although that's speculation on my part. It's not certainly

– not something that would surprise me.

That leaves Ms. Smith, who the state has located and is

available to testify, but we are talking about a substantially weaker

case. It is foreseeable in a retrial that the defendant could take

the stand and accuse Riley of the shooting and could attempt to

implicate her in it as well – as his date as his girlfriend at the

time – although not for a lengthy period of time.

I guess the strongest witness from what I've heard here today in

the previous trial was the reluctant witness. There isn't anything

that increases credibility other than having a friend implicate you

under duress. I think that it would be extremely difficult for the

state to get a reluctant witness back from out of state. It's

difficult to get a cooperating witness back oftentimes from out of

state. There's a lot of paperwork that has to be completed. There's

a hearing that has to occur in the other jurisdiction. The financial

aspects of it aside, just the logistics of it is often difficult to

achieve when you have someone who is reluctant to come back in the

first place. It can be virtually impossible to accomplish that.

So based on that, I'm going to find that the case that the state

is left with as a result of this missing witness is a substantially

weaker case than originally presented, and therefore I'm going to find

that it would be extremely difficult for the state to successfully

retry the defendant, and at this point recommend to the presiding

judge that the petition for postconviction relief be barred by laches.

Record at 103-05.

Armstrong argues that the post conviction court erred in finding that

the State would be prejudiced in any retrial of the petitioner due to the

fact that one of the State’s original eyewitnesses now lives in Georgia.

The State argues that it would be prejudiced because the witness now in

Georgia was the State’s most credible witness; that he would probably not

be willing to travel to Indiana to testify; that the legal and financial

difficulties in bringing a reluctant witness back to testify are

significant; and that the remaining witnesses may be reluctant to testify

under the changed circumstances.

Reviewing the evidence and inferences favorable to the judgment, we

conclude that the State’s most valuable witness, Anthony Moton, currently

resides in Georgia. Moton, a friend of Armstrong, testified reluctantly in

the first trial and is unlikely to willingly return to Indiana and testify

again. It would be expensive, time-consuming, and logistically difficult

for the State to bring him back to testify in Indiana. We find no

indication, however, that the State attempted to determine whether Moton

would voluntarily return and testify. We also note that both Georgia and

Indiana have adopted the Uniform Act to Secure the Attendance of Witnesses

from Without a State in Criminal Proceedings. See Ga. Code Ann. §§ 24-10-

90 to -97 (Harrison 1998); Ind.Code §§ 35-37-5-1 to -9 (1998). A second

eyewitness, William Edward Riley, is available and is currently serving a

sixty year prison term in Indiana for a conviction unrelated to

petitioner's case. In Armstrong's trial, Riley was given immunity and the

state dismissed pending criminal charges in exchange for his cooperation at

petitioner's trial. The State now has nothing further to offer Riley for

his cooperation. The State also argues that Riley's testimony is not as

reliable as Moton's because Armstrong defended on the theory that Riley,

not Armstrong, was the actual shooter. A third eyewitness, Claretha

Takesia Smith, is available. She was dating Riley when the offense was

committed, but stopped dating him because of the shooting and has not seen

him since. The State contends that Smith will likely not cooperate as she

no longer has a motive to protect Riley from Armstrong's attempt to shift

suspicion. The State's argument is thus that, as to Riley and Smith, it

should be inferred from the changed circumstances that they are likely to

testify differently than they did at the original trial. The State did not

present evidence establishing any change in their versions, and we are

reluctant to find these inferences reasonable. To conclude otherwise would

potentially elevate the availability of laches to bar consideration of most

petitions for post-conviction relief in prosecutions originally based

substantially upon testimony obtained pursuant to plea agreement.

Even if the State had presented evidence that one or more of the

witnesses would now testify contrary to their trial testimony and adverse

to the prosecution, we seriously question whether such circumstances should

properly constitute the element of prejudice required for the laches

defense. While this issue is not directly before us, we have observed,

albeit in a different context, that the element of prejudice is not

necessarily shown by an unfavorable result but rather is determined by

whether the prejudice-claiming party's "opportunity for a fair trial was

detrimentally affected by the denial of procedural opportunities for the

ascertainment of truth to which he otherwise would have been entitled."

Games v. State, 535 N.E.2d 530, 535-36 (Ind. 1989).

Even if we were to consider the extent that there may exist a

diminished likelihood of successful reprosecution by reason of Moton's

location and a change in the motivations of Riley and Smith to testify

consistent with their prior testimony, we find no evidence that these

factors did not also exist when the direct appeal concluded. Thus, the

alleged prejudice claimed by the State to support its defense of laches is

neither attributable to nor materially enhanced by Armstrong's three-year

delay in filing his petition for post-conviction relief.

Notwithstanding the evidence favorable to the judgment of the post-

conviction court, and all resulting reasonable inferences, we conclude that

the judgment is not supported by sufficient probative evidence. The post-

conviction court erred in applying the State's defense of laches to bar

consideration of the claims presented in Armstrong's petition. We reverse

the judgment of the post-conviction court and remand this cause for further

proceedings with respect to the petition for post-conviction relief.

SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.

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[1] Kathleen A. Sullivan, Magistrate, conducted the hearing.