Carew v. State

817 N.E.2d 281, 2004 Ind. App. LEXIS 2199, 2004 WL 2521671
CourtIndiana Court of Appeals
DecidedNovember 9, 2004
Docket49A02-0403-PC-231
StatusPublished
Cited by10 cases

This text of 817 N.E.2d 281 (Carew v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carew v. State, 817 N.E.2d 281, 2004 Ind. App. LEXIS 2199, 2004 WL 2521671 (Ind. Ct. App. 2004).

Opinions

OPINION

VAIDIK, Judge.

Case Summary

Darald W. Carew appeals the denial of his petition for post-conviction relief. Specifically, Carew contends that his appellate counsel was ineffective for failing to challenge on direct appeal the trial court's exclusion of his expert's opinion testimony. In particular, if allowed by the trial court, the expert would have opined that the detective used techniques during Carew's interview that would increase the likelihood of a false confession from someone with an IQ in the range of Carew. We conclude that Carew's appellate counsel was deficient because his decision to fore-go this issue was not reasonable given the extraordinary efforts of trial counsel to place this very issue before the appellate courts, including coordinating the challenge of this issue with Miller v. State-which was a case being tried around the same time as Carew's case that involved a similar issue-and because this issue was supported by precedent available at the time of Carew's direct appeal. We also find that Carew's appellate counsel's deficient performance prejudiced him because the appellate attorney in Miller v. State raised this issue on direct appeal, and the Indiana Supreme Court reversed Miller's convictions and awarded him a new trial. Under these cireumstances, we reverse the denial of Carew's petition for post-convietion relief and remand this case for a new trial.

Facts and Procedural History

In July 1998, Carew's daughter, S.C., who was then five years old, gave a videotaped statement to an Indianapolis Police Department officer that Carew had inappropriately touched her when she was four years old. Carew subsequently admitted during a videotaped interview with IPD Detective Gregory Norris that he had fondled S.C. when she was three years old and had touched S.C.'s vagina with his penis when she was four years old. The State charged Carew with child molesting as a Class A felony, incest as a Class B felony, and child molesting as a Class C felony.

At his jury trial, Carew was represented by attorney Ray Casanova. Before trial, Casanova moved to suppress Carew's confession alleging that it was involuntary given his diminished intellectual functioning and Detective Norris' coercive interview tactics. Finding that Carew's confession was voluntary, the trial court denied the motion to suppress.1

Before trial, the State filed a motion in limine seeking exclusion of "(testimony from any expert witness in the form of opinions regarding the voluntariness of the Defendant's taped confession if such testimony is relevant only to the admissibility of the tape" and of "testimony from any expert witness regarding the Defendant's mental capacity or IQ." Tr. p. 192-93, 392-93. The trial court granted the motion with respect to evidence of the voluntariness of Carew's confession but denied the [284]*284motion with respect to evidence of Carew's IQ.

At trial, the trial court admitted Carew's videotaped confession into evidence. Additionally, because S.C., who was six years old at the time of trial, was either unable or unwilling to fully respond to the prosecutor's questions, the trial court admitted S.C.'s videotaped statement into evidence as well. Casanova presented the testimony of Dr. Dennis Olvera, an educational psychologist who specializes in working with mentally handicapped individuals. Dr. Olvera testified that Carew has an IQ of 72, which falls "at the very low end of the range of borderline intellectual functioning,"2 and that Carew tested at the fourth grade level for math but less than the third grade level for both spelling and reading. Id. at 650.

Because of the trial court's pre-trial order excluding expert evidence regarding the voluntariness of Carew's confession, Casanova conducted an offer to prove with Dr. Olvera outside the presence of the jury. During the offer to prove, Dr. Olv-era opined that Carew did not understand that he did not have to answer Detective Norris' questions. In yet another offer to prove, Dr. Olvera, who had watched Detective Norris' videotaped interview of Carew, testified that he observed behaviors from Detective Norris that would increase the likelihood of a false confession from someone with an IQ in the range of Carew. In particular, Detective Norris did not inform Carew of the seriousness of the charges at the beginning of the interview, refused to accept Carew's denials, implied that cooperation would bring lighter penalties, indicated that a confession would help his daughter get through this period of difficulty, and suggested the existence of evidence that the police did not have. As a result, Dr. Olvera concluded that Carew's confession was involuntary.

Carew was convicted as charged, and the trial court sentenced him to an aggregate term of forty-eight years. On direct appeal, Carew was represented by attorney Timothy O'Connor. O'Connor raised the following five issues in Carew's appellate brief: (1) whether the trial court erred in admitting the videotaped statement of S.C. into evidence; (2) whether Carews convictions for child molesting as a Class A felony and incest violate the Indiana Double Jeopardy Clause; (8) whether the trial court erred in admitting a gesture S.C. made in her mother's presence into evidence; (4) whether the trial court erred in admitting Carew's confession into evidence because it was involuntary; and (5) whether the trial court relied on an invalid ag-gravator in sentencing Carew. Despite Casanova's extensive offers to prove with Dr. Olvera at trial and Casanova's recommendation in the Pre-Appeal Form that this issue should be raised on appeal, O'Connor did not challenge the trial court's exelusion of Dr. Olvera's opinion testimony. In an unpublished memorandum decision, this Court found a double jeopardy violation and vacated the incest conviction but otherwise affirmed the trial court. Carew v. State, No. 49A04-0002-CR-48, 742 N.E.2d 45 (Ind.Ct.App. Dec.29, 2000).3

Carew then filed a petition for post-conviction relief, which he subsequently amended. One of the issues raised in the petition was that O'Connor rendered inef[285]*285fective assistance of appellate counsel for failing to challenge the trial court's exclusion of Dr. Olvera's opinion testimony. At the hearing, O'Connor testified that although he considered raising this issue on direct appeal, he decided against it because:

Quite honestly, I thought that the issue of the involuntariness of the confession, given the factors of what happened, the detective coercing Mr. Carew, Mr. Ca-rew's low IQ., I thought that would carry the day on appeal. I didn't want to bog down the record. I had already raised five issues. I'm aware of the Court of Appeals' position basically that if most cases don't suffer from five bad things happening, so I didn't want to bog the record down with a sixth issue that I thought might not have any legs, so to speak. Also, I drew a distinetion-I may not draw the same distinction now, but I drew the distinction at the time between an involuntary confession and a false confession. So those were the three central reasons that I didn't raise that particular issue.

P-C Tr. p. 13. O'Connor clarified that he believed Carew's confession was involuntary, not false, and that if he believed the confession was false, he would have raised that as an issue on direct appeal. O'Con-nor added that given the state of the law at the time of Carew's direct appeal, he did not believe the exclusion of Dr. Olvera's opinion testimony was a meritorious issue.

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Carew v. State
817 N.E.2d 281 (Indiana Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
817 N.E.2d 281, 2004 Ind. App. LEXIS 2199, 2004 WL 2521671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carew-v-state-indctapp-2004.