Opinion
24A-PC-127
08-22-2024
Paul D. Stucker, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Scott H. Duerring South Bend, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jesse R. Drum Assistant Section Chief, Criminal Appeals 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 LaPorte Superior Court The Honorable Richard R. Stalbrink, Jr., Judge Trial Court Cause No. 46D02-1506-PC-7
ATTORNEY FOR APPELLANT Scott H. Duerring South Bend, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE.
[¶ 1] Paul D. Stucker appeals the denial of his petition for post-conviction relief and asserts that he was denied the effective assistance of trial counsel. We affirm.
Facts and Procedural History
[¶ 2] The relevant facts as discussed in Stucker's direct appeal follow:
[I]n October 1983, Stucker and Johnny Hodge were both inmates at the Indiana State Prison ("the Prison") in Michigan City. Hodge was the leader of the Gangster Disciple gang within the Prison, which trafficked in drugs. Stucker was a member of the Aryan Brotherhood gang. Stucker owed a large drug debt to Hodge. At some point, Hodge struck Stucker across the face during a confrontation about the debt. After being struck in the face, Stucker told a fellow inmate, Kenneth McDonald, that he was not going to pay the drug debt and that instead he "was going to do something to Mr. Hodge before Mr. Hodge did something to him."
Stucker developed a plan to light Hodge on fire using a liquid chemical called Naptha, which also is known as camp stove fuel or "white gas." Naptha liquid is highly flammable and volatile. In 1983, the Prison inmates used Naptha in a variety of prison shops and retrieved it from a fifty-five gallon drum in the shop area. Inmates were not supposed to remove Naptha from the shop area, but they often did so surreptitiously in bottles without detection by prison guards and stored the fluid in lighters.
Over the course of one or two weeks, Stucker and several associates smuggled about four gallons of Naptha out of the shop area and transported it to McDonald's cell. There, the Naptha was transferred to a bucket McDonald used for the fish tanks he was allowed to keep in his cell. Stucker and the leader of the Aryan Brotherhood gang threatened to kill McDonald as a "race traitor" if he did not cooperate in the plan to light Hodge on fire.
On October 19, 1983, Stucker directed McDonald to take the bucket of Naptha up to Hodge's cell at 9:00 p.m., after Hodge had been locked in for the night. McDonald did so as Stucker followed behind him. Stucker was carrying with him a cigarette lighter and a "wick" that he had fashioned out of toilet paper soaked in Naptha. When Stucker and McDonald neared Hodge's cell, they saw another inmate, Don Allen, standing outside the cell. Allen, who was the leader of a rival gang to the Gangster Disciples, was having an argument with Hodge. After seeing Allen, Stucker told McDonald to "hold on." Stucker and McDonald waited until Allen started to walk away from Hodge's cell in the opposite direction, then approached Hodge.
McDonald put the bucket of Naptha down outside Hodge's cell and proceeded to walk away in the direction Allen was walking. After McDonald did so, Allen turned around, passed McDonald, and walked back towards Hodge's cell. McDonald did not turn around to see what happened next. However, within seconds of putting down the bucket, McDonald heard a "whoosh" sound and Hodge yelling, "These n-----s are burning me up." McDonald then looked back and saw intense, massive flames coming from Hodge's cell. Hodge could not escape his cell, and he burned to death.
Prison officials investigated Allen, McDonald, and Stucker for Hodge's death. It appears that, as a result of this investigation, Allen and Stucker both were implicated in the incident and both received three years of disciplinary segregation within the Prison. However, because of inconsistencies in witness testimony, the State did not attempt to prosecute anyone for Hodge's death at that time.
In 2007, an Indiana State Police detective received new information regarding Hodge's murder that led him to re-open and re-investigate the case. At some point, a confidential informant ("CI") for the State Police revealed that Stucker had confessed to murdering Hodge. Specifically, the CI reported that Stucker said "he burned a man alive at Michigan City state prison" by pouring "white gas" on him and lighting him on fire with a Zippo lighter. Subsequently, the State Police arranged for the CI to have a recorded conversation with
Stucker. In that conversation, Stucker said that he had managed to smuggle out about 3.5 gallons of a "highly flammable" material, by putting a little bit at a time in small bottles. Stucker also said he "just f---ing dumped it in his f---ing face," that he "took care of it," and that the person he killed was "[t]he Godfather . . . [t]he top man" of the "GD." Stucker also bragged that investigators had been unable to prove what he did, noting the absence of his fingerprints on a lighter and a bucket that were found and that a ski mask that was found was not his.
In 2013, the State charged Stucker with murder. Stucker presented notice that he was going to claim self-defense. At trial, McDonald testified at length against Stucker. The State also introduced, over objection, several photographs depicting Hodge's charred corpse. The jury convicted Stucker as charged. The trial court sentenced Stucker to a term of forty-five years, which represented a five-year enhancement over the presumptive sentence for murder that existed in 1983.Stucker v. State, No. 46A05-1403-CR-117, 2015 WL 520911, *1-2 (Ind.Ct.App. Feb. 9, 2015) (footnotes and citations to record omitted) ("Stucker I"), trans. denied.
The recording occurred on March 24, 2012.
The trial was held in February 2014.
[¶ 3] Stucker argued on appeal that the evidence was insufficient to identify him as Hodge's killer, challenging McDonald's veracity and arguing Allen was the person actually responsible for Hodge's death. This Court held these arguments were requests to reweigh the evidence or judge witness credibility, Stucker confessed to the CI that he killed Hodge by lighting him on fire, and the evidence was sufficient to identify Stucker as Hodge's murderer. Id. at *4. Stucker also argued that, even if he did kill Hodge, he did so in self-defense. Id. We held:
Stucker notes the evidence indicating that in 1983, the Prison was an ultra-violent, anarchic, prisoner-run facility. Indeed, McDonald testified that he was more frightened being incarcerated at the Prison at that time than he was serving as a soldier during the Vietnam War. Based on this evidence, Stucker claims he acted reasonably in pre-emptively killing Hodge in order to prevent his own serious bodily injury or death that supposedly was sure to follow after Hodge had slapped him in the face.
Essentially, what Stucker is asking us to do is place a judicial stamp of approval upon so-called prison "justice" and vigilantism. We will not do so. There is no evidence that when Stucker lit Hodge on fire that he was, at that moment, in the midst of a violent confrontation with Hodge. We would not deny that prisoners may have a right to defend themselves if they find themselves in the middle of a fight with another inmate. Here, however, Stucker planned Hodge's murder in detail and went to great lengths over a period of time to carry it out. And, that plan was precipitated by Stucker's refusal to pay a debt owed to Hodge for both parties' engagement in illegal activity. In short, even if Stucker subjectively believed that he was in imminent danger of death or serious bodily injury and, thus, had to kill Hodge to avoid such danger, we refuse to say that such belief was objectively reasonable or that the jury was required to find such belief objectively reasonable. There is sufficient evidence in the record to rebut Stucker's self-defense claim.Id.
[¶ 4] Stucker filed a petition for post-conviction relief in 2015 and an amended petition in 2019. In June 2020, Stucker filed a memorandum in support of his petition, arguing in part that his trial counsel was ineffective for not challenging the delay in prosecution. He argued that, by the time he was charged, witnesses who could have aided his case were deceased, "[f]or example, Sydney Flowers gave clear indication that McDonald, not Stucker, was the person who actually killed Hodge," and "other inmates such as Daniel Henry, James Smith, and William Penn implicated yet another fellow inmate Don Allen[.]" Appellant's Appendix Volume II at 125-126.
[¶ 5] On September 25, 2023, the court held a hearing at which it heard testimony from Stucker and admitted the trial transcript and the deposition of Stucker's trial counsel, Kurt Earnst ("Attorney Earnst"). Stucker testified that, prior to his trial, he had a conversation with Attorney Earnst and "told him it was selfdefense." Transcript Volume II at 13. He indicated that certain witnesses had died between 1983 and his trial. He indicated that Henry was housed in the cell next to where Hodge died. When asked "[d]o you recall that [Henry] gave a statement that implicated somebody else other than you," Stucker answered affirmatively. Id. at 21. When asked if he recalled the information that Smith "would have given in the investigation back in 1983," he replied, "Somebody else did it. It wasn't me." Id. at 22. He also indicated that he believed Flowers had been implicated in the crime, and when asked if he recalled who would have implicated Flowers, Stucker replied that he believed it was Henry.
Flowers was not mentioned again at the hearing. Also, Penn was not mentioned at the hearing.
[¶ 6] The following exchange occurred between Stucker's post-conviction counsel and Stucker:
Q. You had mentioned that Daniel Henry and James Smith were dead by the time your trial came along. [W]hen did you become aware that they had passed? Was it before or after your trial?
A. It was before my trial.
Q. Okay. Did you talk to your attorney about what they might have been able to do for you as far as evidence wise, strategy as far as defense wise?
A. Yeah, [Hodge] was a killer. [Hodge] wasn't nobody to mess with, man. He run that place, man. You wanted dope, alcohol, whatever you wanted, you'd go see [Hodge]. I used -- when I first got there, if I can elaborate, they had me in B cell house. That's the old man cell house back then. I was on G30. He was right next to me in G31. I used to watch them guards bring dope to him all the time. Whatever he wanted, that's whatever he got.
Q. Now, do you recall during your trial, I think Mr. McDonald testified that the Michigan City prison facility at that time in the early '80s was like the wild wild west?
A. Yeah, I'd say Vietnam. I mean, it was like a city in a city.
Q. I think his testimony was he was a Vietnam vet, and he was more afraid in Michigan City than he was serving over in Vietnam. Does that sound about right?
A. If my memory correctly [sic], yeah. Yeah, that's what he said. Q. Okay. So you knew Mr. Hodge['s] background was a murderer; correct? He was in for murder? A. Yeah. He was having people killed on the street from inside the prison.
Q. And do you believe that Mr. Henry and Mr. Smith would have been able to verify Mr. Hodge['s] role or how he was perceived?
A. I'm most certain anybody could really, I mean, that dealt with him. Everybody knew him. Q. At that point in time? A. Yeah.Id. at 28-29. Stucker indicated that Attorney Earnst did not talk to him about proceeding with any kind of motion concerning the thirty-year delay in the trial. He indicated the testimony of the CI and McDonald was "the most injurious" to him. Id. at 33.
[¶ 7] On cross-examination, when asked "James Smith, what would he have testified to," Stucker answered, "[h]ow ruthless [Hodge] was." Id. at 38-39. When asked "[w]hat would Daniel Henry have testified to," he answered "[j]ust the ruthlessness of Johnny Hodge." Id. at 45. He indicated that a portion of his recorded conversation with the CI was played at his trial. He said, "I didn't know the FBI -- or the ATF and the state police was in the other room and they was recording me." Id. at 55. When asked, "But were the statements that you made on that day to [the CI] true," he answered, "Yeah." Id.
[¶ 8] During his deposition, Attorney Earnst testified that he had been an attorney since 1996, a public defender since 1998, and a major felony public defender since 2001. He testified "it was decided between the two of us to pursue a selfdefense avenue." Petitioner's Exhibit 2B at 9. When asked "there was a 30-year delay . . . [d]o you recall . . . having discussions with Mr. Stucker about how to deal with that as far as the delay was concerned," Attorney Earnst replied "telling him [] that I was very curious, at least at the onset, about what witnesses they would have had from the original incident" and "cases like this are difficult, but by that time, I already had the video, so, obviously, one of the strongest pieces of the puzzle the State had was his own statement made that was observed by Bureau of Alcohol, Tobacco &Firearms." Id. at 12-13. When asked "do you recall specifically discussing with him that it would not be advisable to proceed with something along requesting a dismissal based upon the delay," he answered "knowing that murder cases like that don't have a statute of limitations, I didn't think that that was something that would be appropriate. And, obviously, as an officer of the court, I only file things that I deem that are appropriate." Id. at 13.
[¶ 9] The post-conviction court issued a six-page order denying Stucker's petition for post-conviction relief. The court found that, "[d]uring the course of cross-examination at the Evidentiary Hearing . . . [Stucker] admitted his role in the murder of Johnny Hodge" and, "[w]hile it is understood that the degree of danger to those housed within the Department of Corrections can be extreme at times, Mr. Stucker freely admits that Johnny Hodge was locked in his cell when he was set on fire." Appellant's Appendix Volume II at 211. The court stated:
Finally, the delay between the commission of the underlying offense and the delay in the filing of charges was great in this matter. The passing of some thirty years can raise issues that are difficult for the defense as well as the prosecution. In Indiana, Murder has no Statute of Limitations and cold cases are often brought to trial after the passage of extended periods of time. Mr. Stucker raises the
issue of witnesses being unavailable for his trial that would have been available thirty years earlier. However, when pressed as to what those witnesses would have offered, Mr. Stucker presented no information that could be seen as being highly beneficial to his defense. In fact, Mr. Stucker offered no explanation or assertion that could overcome his own admissions.Id. at 211-212.
Discussion
[¶ 10] Stucker argues "Attorney Ernst's failure to investigate or challenge the delay in filing the charge against [him] prejudiced him." Appellant's Brief at 8. He asserts that, during the thirty-year delay, witnesses had died. He contends the State offered no explanation for the delay. He requests "that this court vacate the trial court's denial of his Petition, grant his Petition and remand this cause back for a new trial." Id. at 10.
[¶ 11] The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. We will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. "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.
[¶ 12] To prevail on a claim of ineffective assistance of counsel a petitioner must demonstrate both that his counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), reh'g denied). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. Id. To meet the appropriate test for prejudice, the petitioner must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
[¶ 13] The Indiana Supreme Court has held:
Although the prosecution can exercise discretion on when to bring charges, that discretion is not unlimited. Schiro v. State, 888 N.E.2d 828, 834 (Ind.Ct.App. 2008)[, trans denied]. The United States Supreme Court has recognized that a pre-indictment delay in prosecution can result in a Due Process Clause violation. United States v. Valenzuela-Bernal, 458 U.S. 858, 869, 102 S.Ct. 3440 (1982). Although statutes of limitations often operate to prevent too much delay before criminal charges are brought, "even where a charge is brought within the statute of limitations, the particulars of the case may reveal that undue delay and resultant prejudice constitute a violation of due process." Patterson v. State, 495 N.E.2d 714, 718 (Ind. 1986). Despite this, the passage of time alone is not enough to establish prejudice. Id. If it were, then the Constitution would
serve as a functional statute of limitation. Rather, the defendant has the burden of proving that he suffered "actual and substantial prejudice to his right to a fair trial," and upon meeting that burden must then demonstrate that "the State had no justification for delay," which may be demonstrated by showing that the State "delayed the indictment to gain a tactical advantage or for some other impermissible reason." Schiro, 888 N.E.2d at 834.Ackerman v. State, 51 N.E.3d 171, 189-190 (Ind. 2016).
[¶ 14] "When a defendant claims he will be prejudiced by delayed prosecution due to deceased witnesses, witnesses with fading memories, or those who are unavailable, he must do more than show that a particular witness is unavailable and that the witness' testimony would have helped the defense." Williams v. State, 188 N.E.3d 472, 477 (Ind.Ct.App. 2022) (citation omitted). "The defendant must demonstrate how the witness would have aided his defense by articulating reasonable inferences regarding the knowledge the witness likely possessed and what relevance that information would have had to his defense." Id. (citing Ackerman, 51 N.E.3d at 190). The court will not speculate on how the witness would have helped the defense. Id. "The absence of cumulative testimony cannot, as a matter of law, constitute actual prejudice." Ackerman, 51 N.E.3d at 191 (citations and brackets omitted).
[¶ 15] There is no question that there was a substantial delay between the time Hodge was killed in 1983 and when the murder charge was brought against Stucker in 2013. Stucker did not produce evidence of the dates of Henry and Smith's deaths showing whether they would have been available for an earlier trial. Moreover, Stucker did not show that the testimony of Henry or Smith would have helped his defense and would not have been cumulative of other evidence already presented at his trial. When asked if he spoke with his attorney about what Henry and Smith "might have been able to do for you as far as evidence," Stucker testified, "Yeah, [Hodge] was a killer. [Hodge] wasn't nobody to mess with, man." Transcript Volume II at 28. Stucker indicated that he knew Hodge's background and that "[h]e was having people killed on the street from inside the prison," and when asked "do you believe that Mr. Henry and Mr. Smith would have been able to verify Mr. Hodge['s] role or how he was perceived," Stucker answered, "I'm most certain anybody could really, I mean, that dealt with him. Everybody knew him." Id. at 29. On cross-examination, Stucker indicated that Smith would have testified as to "[h]ow ruthless [Hodge] was," id. at 39, and that Henry would have testified to "[j]ust the ruthlessness of Johnny Hodge." Id. at 45. When asked why Hodge was killed, Stucker replied, "[b]ecause he scared the shit out of me" and "there was no place I could go to hide." Id. at 39.
[¶ 16] Stucker argued self-defense at his trial in 2014. McDonald testified in some detail regarding the Prison in 1983. He testified that he had served in the Marine Corps in Vietnam and that he was more scared in the Prison in 1983 than he was in Vietnam. He indicated the inmates in the Prison "ran the place . . . [t]o a degree." Trial Transcript at 448. He testified regarding the gangs in the Prison, that Hodge was "one of the highest ranking members of the Gangster Disciples," that it was fair to say that a person who owed money to a gang could be severely beaten or killed, and that Stucker was deeply concerned about owing money to Hodge for drugs. Id. at 449. McDonald indicated that Hodge "had struck" Stucker and that, "if someone high up in a gang like the Gangster Disciples were to strike" a person, the person would be fearful for his life. Id. at 450. He testified that he had heard Hodge referred to as "the godfather." Id. at 454. He testified that Stucker was afraid that, if he did not do something, he would be killed, that Stucker "was going strike first," and that he was going to set Hodge on fire. Id. at 425.
[¶ 17] Stucker did not demonstrate that the testimony he wished to elicit from Henry or Smith in support of his claim of self-defense would not have been merely cumulative of evidence already before the jury or that their testimony would have helped his defense. Stucker confessed to the CI that he killed Hodge by lighting him on fire. He testified at the post-conviction hearing that the recorded statements he made to the CI were true. The post-conviction court found that he "freely admits that Johnny Hodge was locked in his cell when he was set on fire." Appellant's Appendix Volume II at 211. This Court, in response to Stucker's claim that he acted reasonably in preemptively killing Hodge, held that it would not "place a judicial stamp of approval upon so-called prison 'justice' and vigilantism." Stucker I at *5. We observed there was no evidence that when Stucker lit Hodge on fire that he was, at that moment, in the midst of a violent confrontation with Hodge and held that, even if Stucker subjectively believed that he was in imminent danger of death or serious bodily injury, we could not say that such belief was objectively reasonable. Id. Even if Henry and Smith were alive at the time of Stucker's trial and testified, similar to McDonald, that Hodge was ruthless and Stucker believed that his life was in danger, our analysis would not change. Stucker has not met his burden of proving that, due to not being able to present testimony from Henry and Smith in support of his self-defense claim, he suffered actual and substantial prejudice to his right to a fair trial.
Stucker also argues that a file of an investigator, Charles Penfold, was lost. As the State points out, Stucker did not present argument regarding the loss of Penfold's file in his petition for post-conviction relief, in his memorandum in support of his motion, or at the evidentiary hearing before the post-conviction court. Stucker has waived the argument. See Isom v. State, 170 N.E.3d 623, 638 (Ind. 2021) (argument in support of ineffective assistance of counsel claim raised for first time on appeal is waived), reh'g denied.
[¶ 18] Further, Stucker has not demonstrated that the State had no justification for the delay. The State charged Stucker with Hodge's murder in March 2013, after he admitted to the CI in a recorded conversation in March 2012 that he killed Hodge by lighting him on fire and how he managed to smuggle flammable material from the shop area to his cell. In sum, Stucker has not established that a motion to dismiss the murder charge against him based on delay would have been granted or that Attorney Earnst provided ineffective assistance of counsel, and we cannot say that the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court.
[¶ 19] For the foregoing reasons, we affirm the post-conviction court.
[¶ 20] Affirmed.
May, J., and Pyle, J., concur.