Daniel Snell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 29, 2016
• Docket: 49A04-1511-PC-1891
• Status: Published

Opinion

MEMORANDUM DECISION FILED Jul 29 2016, 9:41 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James A. Edgar Gregory F. Zoeller J. Edgar Law Offices, Prof. Corp. Attorney General of Indiana Indianapolis, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daniel Snell, July 29, 2016 Appellant-Petitioner, Court of Appeals Case No. 49A04-1511-PC-1891 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt M. Eisgruber, Appellee-Respondent Judge

The Honorable Steven J. Rubick, Magistrate Trial Court Cause No. 49G01-0608-PC-151692

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016 Page 1 of 9 Case Summary [1] Daniel Snell was convicted of two counts of murder and sentenced to 100 years

of imprisonment. His convictions and sentence were upheld on direct appeal.

Snell filed a petition for postconviction relief (“PCR”) alleging that his trial

counsel was ineffective in failing to investigate alleged third-party suspects,

failing to timely discover an alibi witness, opening the door to allegedly harmful

evidence, and failing to inform him of an alleged plea offer from the State. The

postconviction court denied Snell’s petition.

[2] On appeal, Snell contends that the postconviction court’s ruling is clearly

erroneous. Finding no error, we affirm.

Facts and Procedural History [3] In Snell’s direct appeal, another panel of this Court recited the following facts:

On the night of August 2, 2006, Snell, Charles Richardson, and two women were hanging out in the driveway of a residence on North Webster in Indianapolis, Indiana. Antoine Beech and Eric Gray stopped by the residence to use some cocaine they had bought. Beech and Gray saw that Snell had a handgun in his waistband and thought he was acting “weird” and “belligerent.” Transcript at 76, 159. After the two women went inside the residence, Allan Westmoreland and Latasha Pettis approached in a vehicle. Richardson hailed Westmoreland, and Westmoreland parked the car. At some point, Gray heard Richardson say, “there go the neighborhood snitch.” Id. at 163.

Richardson and Beech talked to Westmoreland, and then Beech went to the rear of another vehicle to use his cocaine. As Beech and Gray were using their cocaine, they saw Snell approach Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016 Page 2 of 9 Westmoreland’s vehicle by sneaking through some bushes. Snell then reached inside the vehicle and started shooting Westmoreland. Snell went to the vehicle’s passenger side, dragged Pettis out of the vehicle as she screamed, and shot her. Snell then went back to the driver’s side of the vehicle, reloaded his gun, and shot Westmoreland again.

The first officer on the scene discovered that Westmoreland was dead and that Pettis was critically wounded. Pettis told the officer that a young black man with a bald head wearing blue shorts shot her. Less than three hours later, Snell reported to the police that his 9 mm gun had been stolen.

Both Westmoreland and Pettis died from their gun shot wounds. Westmoreland had been shot nine times, and Pettis had been shot two times. All of the casings found at the scene were “9 mm Luger caliber cartridge casings,” and the bullets were “9 mm.” Id. at 403-404. All of the bullets and casings large enough for analysis were fired from the same gun. When officers attempted to arrest Snell a few days later, Snell identified himself as “Jonathan Snell,” his brother, and fled on foot. Id. at 327. Snell was eventually apprehended by the officers.

The State charged Snell with two counts of murder. After the State rested at the jury trial, Snell attempted to call his girlfriend, Sarajevo Anderson, as an alibi witness. Noting that Snell had failed to file a notice of alibi, the trial court denied Snell’s request to present Anderson as an alibi witness and noted that Snell had not demonstrated good cause for his failure to file a timely notice of alibi. Snell then testified at the trial that he left the residence on North Webster before Westmoreland arrived and that he spent the night with Anderson.

Snell v. State, No. 49A02-0708-CR-700, 2008 WL 2054041, at *1 (Ind. Ct. App.

May 15, 2008), trans. denied. The trial court denied Snell’s proposed alibi Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016 Page 3 of 9 instruction. The jury found Snell guilty as charged in June 2007. The trial

court sentenced him to 100 years of imprisonment.

[4] On direct appeal, Snell argued that the trial court erred in excluding his alibi

witness and denying his alibi instruction and that his sentence was

inappropriate. Another panel of this Court affirmed the trial court in all

respects. See id. Snell filed a PCR petition raising several claims of ineffective

assistance of trial counsel and freestanding error. After a hearing, the

postconviction court denied Snell’s petition in October 2015. This appeal

followed. Additional facts will be provided as necessary.

Discussion and Decision [5] Snell asserts that the postconviction court erred in denying his PCR petition.

Postconviction proceedings do not grant a petitioner a “super-appeal” but are

limited to those issues available under Indiana’s postconviction rules. Shepherd

v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied.

Postconviction proceedings are civil in nature, and a petitioner bears the burden

of proving his grounds for relief by a preponderance of the evidence. Id. A

petitioner appealing the denial of PCR faces a rigorous standard of review, as

we may consider only the evidence and the reasonable inferences supporting

the judgment of the postconviction court. Id. We will not reweigh the evidence

or judge witness credibility. Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct.

App. 2013), trans. denied (2014). We must accept the postconviction court’s

findings of fact and may reverse only if they are clearly erroneous. Shepherd,

Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016 Page 4 of 9 924 N.E.2d at 1280. A petitioner must show that the evidence as a whole leads

unerringly and unmistakably to an opposite conclusion than that reached by the

postconviction court. Id.

[6] Snell claims that he was denied his Sixth Amendment right to the effective

assistance of trial counsel. To prevail on such a claim, a petitioner must show

that his counsel’s performance fell below an objective standard of

reasonableness based on prevailing professional norms and that there is a

reasonable probability that, but for counsel’s errors, the result of the proceeding

would have been different. Little v. State, 819 N.E.2d 496, 501 (Ind. Ct. App.

2004), trans. denied (2005). “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Talley v. State, 51 N.E.3d 300, 303

(Ind. Ct. App. 2016), trans. denied. Counsel’s performance is presumed

effective, and a petitioner must offer strong and convincing evidence to

overcome this presumption. Little, 819 N.E.2d at 501. “[A] court need not

determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies.”

Strickland v. Washington, 466 U.S. 668, 697 (1984). “If it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient prejudice, … that

course should be followed.” Id. Snell raises four ineffectiveness claims. We

address each in turn.

[7] First, Snell alleges that counsel was ineffective in failing to investigate and

prepare a defense based on the alleged involvement of three men against whom

Westmoreland was scheduled to testify in an attempted murder case. All three

Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016 Page 5 of 9 men were in jail when Westmoreland and Pettis were killed. Before trial, the

State filed a motion in limine to exclude any evidence of third-party

involvement in the murders. The trial court told Snell’s counsel, “If you want

to introduce evidence on the third party committing the crime, you would have

to have some evidence connecting the person to that crime.” Trial Tr. at 9. See

Pelley v. State, 901 N.E.2d 494, 505 (Ind. 2009) (reciting “the widely-accepted

principle that before evidence of a third party is admissible, the defendant must

show some connection between the third party and the crime.”). Counsel

admitted that she had no evidence that the three men had committed or

conspired with others to commit the murders. The trial court granted the

State’s motion in limine but allowed counsel to make an offer of proof.

[8] In its order, the postconviction court found,

While he is highly critical of counsel’s efforts at presenting a third party type defense, [Snell] has presented no additional evidence that establishes a credible connection between any third parties and the murders in this case. Without this evidence, the Court must find that [Snell] failed to establish that he was prejudiced by counsel’s actions.

Appellant’s App. at 131. Indeed, Snell has failed to assert, let alone establish,

that he was prejudiced by counsel’s actions, i.e., that but for counsel’s alleged

error, there is a reasonable probability that the result of his trial would have

been different. Consequently, this claim fails.

[9] Second, Snell asserts that counsel was ineffective in failing to timely discover an

alibi witness. When Snell was questioned by the police after his arrest, he Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016 Page 6 of 9 claimed that he was “with some friends [in] Bloomington” at the time of the

murders. Trial Tr. at 503. On the morning of the last day of trial, Snell told his

counsel that he had been with a woman named Sarajevo Anderson at the time

of the murders and had lied about his whereabouts because he did not want to

upset his girlfriend. Counsel informed the trial court of this development after

the State rested its case, and she asked to call Anderson as an alibi witness. The

trial court denied this request as untimely 1 and in “horribly bad faith”:

“[Y]ou’re telling me your client didn’t want to disclose because he didn’t want

to make his girlfriend jealous. It’s ridiculous when you’re charged with two

counts of murder and facing 125 years in prison.” Id. at 469-70. Snell took the

stand and claimed that he had been with Anderson at the time of the murders.

In a subsequent offer of proof, Anderson claimed that Snell was with her on the

night of the murders from approximately 10:00 p.m. onward.

[10] The postconviction court determined that, “[r]ather than a strategic error, or a

lack of investigation on the part of defense counsel,” the alibi issues “were

caused by [Snell] himself” and thus were “simply invited error.” Appellant’s

App. at 134. We agree. “The doctrine of invited error is grounded in estoppel.

Under this doctrine, a party may not take advantage of an error that she

commits, invites, or which is the natural consequence of her own neglect or

misconduct.” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (citations and

1 See Ind. Code § 35-36-4-1 (requiring defendant to file notice of alibi defense no later than twenty days prior to omnibus date in felony case).

Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016 Page 7 of 9 quotation marks omitted). “Invited error is not reversible error.” Kelnhofer v.

State, 857 N.E.2d 1022, 1024 (Ind. Ct. App. 2006). As far as Snell’s counsel

was aware, her client had claimed to be in Bloomington on the night of the

murders, and she cannot be held responsible for Snell’s last-minute revelation

about Anderson, who testified during the offer of proof that Snell had told her

“not to come forward” because “he was concerned about [her].” Trial Tr. at

564. Snell has only himself to blame for the exclusion of his alibi witness.

[11] Third, Snell argues that counsel was ineffective by opening the door to allegedly

damaging evidence. In cross-examining Detective Thomas Lehn, Snell’s

counsel accused him of having “nothing else except the testimony of Mr. Beech

and Mr. Gray and Mr. Richardson” regarding Snell’s involvement in the

murders. Trial Tr. at 439. Detective Lehn said, “No, ma’am, that’s not

accurate.” Id. Counsel asked, “And what would that be?” Id. The detective

answered, “I have statement[s] from Shaquanna Johnson, statements from

Tamara Brown - -” Id. Counsel objected on hearsay grounds. The trial court

responded, “He didn’t say what the statements were. You asked and he told

[…] the jury. Next question.” Id. The postconviction court found that Snell

had “not established, or even argued that he suffered any specific prejudice

from admission of this evidence[.]” Appellant’s App. at 135. The same is true

on appeal, and therefore this claim fails.

[12] Fourth, and finally, Snell contends that counsel failed to inform him of a plea

offer from the State, which our supreme court has said is “a denial of effective

assistance of counsel[.]” Gray v. State, 579 N.E.2d 605, 607 (Ind. 1991). At the

Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016 Page 8 of 9 PCR hearing, counsel testified that the State tendered a plea offer of thirty years

and that she did not tell Snell about it because she “did not believe that he

would turn over anyone” in exchange for the plea. PCR Tr. at 20. Two of the

prosecutors assigned to Snell’s case, however, testified that no plea offer was

made. Id. at 37, 52. The postconviction court found the prosecutors’ testimony

more credible, and we will not second-guess that determination on appeal.

Finding no error, we affirm the denial of Snell’s PCR petition.

[13] Affirmed.

Kirsch, J., and May, J., concur.

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