Opinion
23A-PC-2468
12-30-2024
Michael Bruno, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
APPELLANT, PRO SE Michael Bruno Michigan City, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Jesse R. Drum Deputy Attorney General Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Delaware Circuit Court The Honorable Linda Ralu Wolf, Judge Trial Court Cause No. 18C03-0307-PC-6.
APPELLANT, PRO SE Michael Bruno Michigan City, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Jesse R. Drum Deputy Attorney General Indianapolis, Indiana.
Weissmann and Foley, Judges concur.
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] Michael Bruno was convicted of murder and criminal recklessness and later sought post-conviction relief. The post-conviction court denied relief, and Bruno now appeals that denial. We affirm.
Facts and Procedural History
[¶2] The underlying facts of this case are as follows:
On the night of October 30, 1999, [the Ball State University] chapter of Kappa Alpha Psi Fraternity held a fundraiser at a local YWCA. After the fundraiser, there was a party at the house of a few of the fraternity members ("Kappa house") [in Muncie]. [Artie Thomas] and seven or eight of his friends[, including Michael Bruno and Jeriel Williams,] went to the Kappa house, but were turned away at the door. They were told that the party was full and it was only for Kappa members. [Thomas] and his friends exchanged words with the Kappas and finally left the party. Upon leaving, [Thomas] said, "we'll be back and you better have the police here."
As the group left the party they split up into separate groups. [Thomas] said he was "going to the hood to get his [gun]." (R. at 929.) One of [Thomas's] friends, Terrence Manley, said, "I ain't go [sic] to do nothing but go down the street." (R. at 929.) Another member of the group, Tyrone Mason, took Louis Abram[] to get Abram[]'s gun.
The group met up again in the parking lot of a store near the Kappa house. [Thomas], Michael Bruno, Abram[], and Manley had guns. The group parked their cars on a dark residential street
so as not to be seen. They walked toward the back of the Kappa house. At some point, someone said, "let's do this shit," and [Thomas], Manley, Bruno, and Abram[] began shooting into the house. Four people were shot. One victim, Julian Brown, died and three other women were injured.Thomas v. State, 774 N.E.2d 33, 34 (Ind. 2002); see also Bruno v. State, 774 N.E.2d 880, 882 n.1 (Ind. 2002) ("For a complete recitation of the facts, see the companion case of Artie Thomas v. State ...."), reh'g denied.
[¶3] The day after the shooting, police interviewed members of Bruno and Thomas's group, including Williams, Abram, and Djuane McPhaul. Over the next few weeks, police interviewed the young men several more times.
[¶4] The State charged Bruno with murder, Class A felony conspiracy to commit murder, and three counts of Class C felony criminal recklessness. At the jury trial in July 2000, Williams, Abram, and McPhaul testified for the State. Williams testified that when the group returned to the Kappa house, he heard Manley say, "[L]et's do this," and saw Thomas reach into his pants. Trial Tr. Vol. IV p. 226. Williams also said he was never arrested or jailed in connection with the shooting. Along the same lines, when the State later recapped Williams's testimony during its closing argument, it remarked, "He didn't have any deals with the State, did he? No reason to lie." Trial Tr. Vol. VI p. 161.
[¶5] At the time of trial, Abram had been charged with criminal recklessness and possession of a handgun without a license for his role in the shooting. He explained that in exchange for his truthful testimony, the State agreed not to charge him with murder or conspiracy. Abram also testified that he heard someone say "let's do it" or "let's do this" before people started shooting. Trial Tr. Vol. IV p. 271. He admitted that he fired shots and that he saw Bruno shooting. Abram explained that he told a different story in his last police interview than he had in the first two because he felt intimidated and that some of the details in his last statement were things he "felt like [he] w[as] made to say," including "who said what." Id. at 293.
[¶6] McPhaul testified that he saw several people's arms go up with their hands pointed toward the Kappa house, and then shots went off. He thought he saw Bruno's arms go up. McPhaul said that after he gave his statement to police, the police told him he was lying, and he was arrested for obstruction of justice. He explained that he gave another statement while he was in jail in which he "t[old] the truth," and he was released from jail and never charged. Trial Tr. Vol. V p. 33. McPhaul testified that he "didn't make[ ]up nothing" in his second statement and that this statement was true "[t]o [his] best knowledge." Id. at 34. On redirect, McPhaul acknowledged that Jeffrey Arnold, the deputy prosecutor, hadn't told him what to say or threatened to put him in jail or charge him with a crime.
[¶7] Bruno testified in his own defense. He admitted that he fired multiple shots at the Kappa house but claimed someone in the house shot at him first, so he fired back in self-defense. The jury found Bruno guilty as charged, and the trial court sentenced him to a total of seventy-eight years: sixty years for murder and forty years for conspiracy to commit murder, to run concurrently, and consecutive sentences of six years for each of the three criminal-recklessness convictions.
[¶8] On direct appeal, our Supreme Court affirmed Bruno's convictions for murder and criminal recklessness but remanded for resentencing, finding that the trial court should have merged Bruno's murder and conspiracy convictions and that, by statute, the consecutive sentences for the criminal-recklessness convictions could not exceed a total of ten years (both of which the State conceded on appeal). See Bruno, 774 N.E.2d at 882-84.
[¶9] In July 2003, Bruno, pro se, petitioned for post-conviction relief. After the case sat dormant for eighteen years, Bruno hired a private attorney, who amended the petition in May 2022 and June 2023. Bruno alleged that (1) the State committed prosecutorial misconduct and violated his due-process rights by coercing false testimony against him; (2) his trial counsel was ineffective for failing to move for a change of venue, failing to object to a misstatement of the law in the State's closing argument, failing to raise a double-jeopardy challenge, and failing to disclose a conflict of interest; and (3) the State violated Giglio v. United States, 405 U.S. 150 (1972), by failing to disclose deals it made with witnesses.
[¶10] A hearing on Bruno's petition was held in July 2023. Williams testified that parts of his trial testimony were false, specifically his testimony that he "heard somebody say, let's do this shit" and that he'd "seen somebody reach into the[ir] waistband." P-C Tr. p. 19. He explained that in his first two interviews with police after the shooting, he told them what happened, but then Detective Jesse Neal (who was also Williams's high-school football coach), told him, "[I]f you don't help me out . . . I'm going to make sure you're charged with accessory, and on top of that, you ain't never going to play no sports again." Id. Williams claimed that during his third interview, Detective Neal "basically came with a script" of the things he "need[ed] [Williams] to say." Id. at 20. Williams acknowledged that the first time he tried to recant his trial testimony was in 2021, after McPhaul had called him and told him Bruno's postconviction counsel wanted to speak with him. Williams admitted that until he met with Bruno's post-conviction counsel in 2021, he didn't come forward about the alleged police coercion.
[¶11] McPhaul similarly testified that his prior testimony that he "saw certain peoples' hands go up and start shooting" wasn't true and that he was "coerced to say that." Id. at 65. He explained that he lied because "they w[ere] going to charge [him]" and "had [him] under duress and threat," so he "just said whatever just to save [his] own skin." Id. at 51. McPhaul testified that he'd been trying to recant his prior testimony and "bring out the truth" since 2004, including by filing a civil suit against the Muncie Police Department and submitting an affidavit that he was "coerced to testify by the Prosecutors" in Bruno's murder case. Id. at 43, 44. By that point, McPhaul was serving a prison sentence for armed robbery. When he sought post-conviction relief in the armed-robbery case, he also told his post-conviction counsel that he wanted to recant his testimony in Bruno's case. McPhaul acknowledged that he'd been friends with Bruno, Williams, and Abram for several years before the shooting and that he'd communicated with both Bruno and Abram while they were incarcerated.
[¶12] Abram (who testified by video because he was incarcerated in Georgia in an unrelated matter) said that in his interviews with police after the shooting, he originally told them he didn't see Bruno shoot, but "they wouldn't take that for a[n] answer" and "told [him] what they wanted to hear." Id. at 76. Like Williams and McPhaul, Abram testified that portions of his trial testimony were inaccurate, specifically his testimony that the group went to the Kappa house with a plan to shoot people, that somebody said, "[L]et's do this shit," and that he saw Bruno shooting. Id. at 79. Abram said he "felt like if [he] tailored [his] testimony in a certain way that would be to [his] benefit," and in fact, he avoided a murder charge in exchange for his testimony. Id. at 82. He testified that he submitted an affidavit in 2021 stating his trial testimony wasn't accurate and that this was the first time he'd formally reported the inaccuracies.
[¶13] Deputy Prosecutor Arnold testified that he didn't coerce or induce any witnesses into providing false testimony, give any witnesses a script or tell them what to say, or make any improper or illegal threats. Arnold didn't remember making any deals or promises with any witnesses, but he said that any offer of immunity or plea agreement "was always reduced to writing and usually filed with the court and given to the defense attorney." Id. at 145. He also testified that none of the witnesses told him that the police had intimidated them or asked them to lie. Mark McKinney, Deputy Prosecutor and Arnold's co- counsel, testified that he did not tell any witnesses what to say, tell witnesses to lie under oath, make improper threats to witnesses, or make any deals or promises to witnesses that weren't disclosed to defense counsel. McKinney also said that neither McPhaul, Abram, nor Williams told him that police had coerced them or forced them to provide false testimony at trial.
[¶14] The post-conviction court denied relief in August 2023. Specifically, the court found that (1) Williams's, McPhaul's, and Abram's post-conviction testimony was not credible; (2) the only witness in Bruno's murder trial with whom the State had an agreement was Abram, and this agreement was disclosed to the defense and the jury; and (3) Bruno failed to prove that his trial counsel was ineffective. The court also noted that even if Williams, McPhaul, and Abram were to be believed, their "very specific recantation[s] leave[] the remainder of [their] trial testimony intact." P-C App. Vol. II pp. 36, 38, 40-41.
[¶15] Bruno, pro se, now appeals. Discussion and Decision
[¶16] Bruno appeals the denial of post-conviction relief. A defendant who petitions for post-conviction relief bears the burden of establishing grounds for relief by a preponderance of the evidence. Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). The post-conviction court is the sole judge of the evidence and the credibility of witnesses. Dew v. State, 843 N.E.2d 556, 560 (Ind.Ct.App. 2006), trans. denied. A petitioner appealing from the denial of post-conviction relief must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Hollowell, 19 N.E.3d at 269. "Although we do not defer to the post-conviction court's legal conclusions, a post-conviction court's findings and judgment will be reversed only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake has been made." Id. (quotation omitted).
I. Bruno's ineffective-assistance-of-counsel claims are waived
[¶17] Bruno first argues that his trial counsel was ineffective. While he alleged ineffective assistance of counsel in his petition for post-conviction relief, he raises new grounds for this argument for the first time on appeal-namely, that his trial counsel was ineffective for failing to object to several jury instructions and for allowing the people he shot to be referred to as "victims" at trial. Bruno acknowledges that these claims are waived because he didn't include them in his petition for post-conviction relief, but he claims "the Martinez-Trevino doctrine provides an avenue for remand and review of th[ese] waived issue[s]." Appellant's Br. p. 28. In essence, Bruno argues that he can still obtain review of these waived claims of ineffective assistance of trial counsel under the Martinez-Trevino doctrine because his post-conviction counsel was deficient for failing to raise them.
[¶18] Bruno's reliance on the Martinez-Trevino doctrine is misplaced because this exception applies only in federal habeas corpus proceedings. In Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), the United States Supreme Court "addresse[d] the circumstances under which a state prisoner's claim of ineffective assistance of trial counsel can be raised on federal habeas review . . . despite a procedural default" in state court. Lee v. Watson, 964 F.3d 663, 667 (7th Cir. 2020). One such circumstance is when "the underlying [ineffective-assistance-of-trial-counsel] claim is 'substantial' and . . . postconviction counsel's failure to raise it amounted to constitutionally ineffective assistance." Crutchfield v. Dennison, 910 F.3d 968, 974 (7th Cir. 2018). While this exception to procedural default is available to Indiana defendants seeking federal habeas relief, see Brown v. Brown, 847 F.3d 502 (7th Cir. 2017), it does not apply in state post-conviction proceedings, see Isom v. State, 235 N.E.3d 150, 155 (Ind. 2024) ("While the rule from Martinez and Trevino preserves certain otherwise waived claims for federal habeas review when state postconviction counsel were ineffective, it does not preserve claims in state proceedings."). So, while this exception might allow Bruno to bring his ineffective-assistance-of-post-conviction-counsel claim in a federal habeas corpus petition, we cannot consider it here. Nor can we "remand . . . for an evidentiary hearing on the above waived-issues," as Bruno suggests, Appellant's Br. p. 30. See Ind. Post-Conviction Rule 1(8) ("All grounds for relief available to a petitioner under this rule must be raised in his original petition."). Because the ineffective-assistance-of-counsel arguments Bruno makes on appeal were not in his petition for post-conviction relief, we will not address them further.
II. Bruno has not shown a due-process violation
[¶19] Bruno also contends the State violated his due-process rights by knowingly soliciting false testimony at trial and failing to disclose immunity deals given to McPhaul and Williams in exchange for their testimony. "A conviction based on the State's knowing use of false evidence violates a defendant's Fourteenth Amendment right to due process." Gibson v. State, 133 N.E.3d 673, 693 (Ind. 2019) (citing Giglio v. United States, 405 U.S. 150, 153-55 (1972)), reh'g denied. This is so both where the State solicits false evidence and when it allows such evidence to go uncorrected when it appears. Giglio, 405 U.S. at 153. A due-process violation may also arise where the State suppresses evidence of promises and offers of immunity, leniency, or another benefit made by the State to its witness to induce cooperation. Schmanski v. State, 466 N.E.2d 14, 15 (Ind. 1984) (citing Giglio, 405 U.S. 150). "A prosecutor must disclose to the jury any agreement made with a witness and any promises, grants of immunity, or rewards offered in return for testimony." Rubalcada v. State, 731 N.E.2d 1015, 1024 (Ind. 2000). This duty of disclosure arises when there is a confirmed promise of leniency in exchange for testimony, but preliminary discussions are not subject to mandatory disclosure. Id. "A valid claim of non-disclosure requires concrete evidence of an understanding or agreement, and mere speculation as to the circumstances surrounding a decision not to prosecute the witness is not sufficient." Asbell v. State, 468 N.E.2d 845, 847 (Ind. 1984).
[¶20] Bruno claims the State knowingly presented false evidence at trial in that the State and its actors coerced Williams, McPhaul, and Abram into testifying falsely against Bruno. The only evidence to support Bruno's coercion claim is Williams's, McPhaul's, and Abram's own testimony at the post-conviction hearing. But the post-conviction court specifically found that this testimony was not credible, and we do not reweigh the evidence or judge witness credibility on appeal. See Dew, 843 N.E.2d at 560. And even if we were to believe Williams's, McPhaul's, and Abram's claims that they testified falsely at Bruno's murder trial, their recantations of their testimony twenty years after the fact does not establish that the State knew their trial testimony was false. Bruno has not shown that the State knowingly used false testimony to obtain a conviction.
[¶21] Nor has he shown that the State failed to disclose agreements it made with Williams and McPhaul in exchange for their testimony-in fact, he failed to show the State made agreements with Williams or McPhaul at all. Deputy Prosecutor Arnold testified at the post-conviction hearing that he didn't coerce or induce any witnesses into providing false testimony or make any improper or illegal threats. Deputy Prosecutor McKinney similarly testified that he didn't make improper threats to witnesses or make any deals or promises to witnesses that weren't disclosed to defense counsel. At Bruno's murder trial, McPhaul testified that he was arrested and jailed for obstruction of justice but never charged with obstruction or any other crime, and Williams testified that he was never arrested or jailed. Bruno highlights that Williams and McPhaul were never arrested or charged for any role they may have had in the shooting, but this does not amount to a promise of leniency or an overt agreement not to prosecute; Bruno is merely speculating as to why the State decided not to prosecute Williams and McPhaul. See, e.g., Asbell, 468 N.E.2d at 847 (rejecting appellant's claim that State's failure to prosecute witness for his role in the offense established that witness was given immunity in exchange for his testimony because there was no evidence of an agreement between the State and witness).
[¶22] As explained above, the trial court found that Williams's and McPhaul's testimony at the post-conviction hearing was not credible, and we will not second-guess that credibility determination on appeal. But even if we were to accept Williams's and McPhaul's post-conviction testimony as true, at best, it establishes that police officers threatened to charge them with a crime if they didn't cooperate. But this, too, falls short of evidence of a promise or agreement between these witnesses and the State. See St. John v. State, 523 N.E.2d 1353, 1356 (Ind. 1988) (finding no understanding or agreement existed where there was merely an implied threat of prosecution communicated to the witness through a third party). The only witness who received a deal in exchange for his testimony was Abram, and it is undisputed that this deal was disclosed to both the defense and the jury. Bruno has failed to show that the State had agreements with any other witnesses in exchange for their cooperation, much less that the State suppressed evidence of any such agreements.
Bruno also claims the State presented false testimony at trial by asserting that Williams didn't receive benefits in exchange for his testimony and failing to correct McPhaul's testimony that he didn't receive benefits for testifying. But because we find that there is no evidence of an agreement between the State and these witnesses, we need not address this additional argument.
[¶23] Affirmed.
Weissmann, J., and Foley, J., concur.