The Publication Status of this Document has been Changed by the Court from Unpublished to Published July 8, 2015.
Appeal from the Marion Superior Court. Lower Court Cause No. 49G04-9502-PC-24360. The Honorable Lisa F. Borges, Judge.
David Pannell, APPELLANT, Pro se, Michigan City, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana.
Pyle, Judge. Najam, J., and Bailey, J., concur.
Statement of the Case
[¶1] Appellant/Petitioner, David Pannell (" Pannell" ), appeals the post-conviction court's denial of his petition for post-conviction relief, in which he requested relief from his conviction for murder. Pannell's conviction was based on the murder of his wife, Leisha. On direct appeal, his appellate attorney argued that the trial court had abused its discretion in excluding testimony regarding Leisha's drug use and that Pannell's trial counsel had been ineffective for failing to submit certain evidence and explore all possible defenses. Our Indiana Supreme Court affirmed Pannell's conviction.
[¶2] Subsequently, Pannell filed a pro se petition for post-conviction relief, raising seventeen claims of ineffective assistance of appellate counsel, each arguing that his appellate counsel had provided ineffective assistance for failing to raise a claim of ineffective assistance of trial counsel. Pannell also raised multiple prosecutorial misconduct claims. After filing his petition, Pannell filed a motion for the trial court to issue subpoenas to his pre-trial, trial, and appellate counsel, which the trial court granted. He also filed a motion to compel discovery and a motion for the post-conviction court to issue subpoenas to his trial witnesses, both of which the post-conviction court denied. The post-conviction court then held a hearing at which Pannell's appellate attorney testified. Pannell's pre-trial and trial counsel did not appear, even though the trial court had issued subpoenas for them to appear. At the hearing, Pannell argued that the post-conviction court should re-issue the subpoenas for his pre-trial and trial counsel, but the post-conviction court ordered Pannell to submit the rest of his evidence on the petition via affidavit based on its conclusion that Pannell had not effectively questioned his appellate counsel at the hearing. After giving Pannell ninety days to submit affidavits, the post-conviction court denied Pannell's petition.
[¶3] Pannell now appeals, arguing that the post-conviction court: (1) abused its discretion when it denied his post-conviction hearing motion to subpoena his pre-trial and trial counsel; (2) abused its discretion when it denied his pre-hearing motion to subpoena certain trial witnesses; (3) abused its discretion when it denied his motion to compel discovery; (4) abused its discretion when it denied his request to admit evidence during his post-conviction relief hearing; and (5) erred when it denied his petition for post-conviction relief. We find that the post-conviction court did not abuse its discretion when it refused to issue Pannell's requested subpoenas in light of Pannell's performance at his hearing and the lack of probative and relevant evidence the testimony from Pannell's trial witnesses would have added to his case. We also find that: Pannell had waived his right to discovery of the evidence he requested; the post-conviction court did not exclude evidence Pannell submitted at his post-conviction relief hearing; and the post-conviction court did not err in denying Pannell's petition for post-conviction relief.
[¶4] 1. Whether the post-conviction court abused its discretion when it denied Pannell's post-conviction hearing motion to re-issue subpoenas ordering his pre-trial and trial counsel to testify at his post-conviction hearing.
2. Whether the post-conviction court abused its discretion when it denied Pannell's motion to issue subpoenas ordering several of Pannell's trial witnesses to testify at his post-conviction hearing.
3. Whether the post-conviction court abused its discretion when it denied Pannell's motion to compel discovery.
4. Whether the post-conviction court abused its discretion when it denied Pannell's request to admit evidence during his post-conviction relief hearing.
5. Whether the post-conviction court erred when it denied Pannell's petition for post-conviction relief.
[¶5] In Pannell's direct appeal of his conviction for murder, our Indiana Supreme Court set forth the facts of this case as follows:
David Pannell and his wife Leisha were separated. On February 17, 1996, he visited the home where she lived with their five children. David and Leisha spent most of the afternoon and evening in her bedroom while the children played outside and in other areas of the house.
That evening, after Leisha returned from a short trip to the store with some of the children to buy candy, she and David began to argue in the living room while the children watched television in her bedroom. Two of the children, then ages ten and nine, testified that they heard their father demand five dollars from Leisha, who refused, claiming she needed the money to feed the children. Shortly thereafter, they heard a door " slam open" and their mother scream. They ran to the front of the house and saw their father holding their mother down on the ground in front of the home and stabbing her with a large kitchen knife. One of the children ran outside and tried to stop him. Pannell pushed her away and continued stabbing Leisha. The children then dialed 911 and watched as Pannell stuck the knife in the ground, got into his car, and drove away.
Police found Pannell approximately one hour later after his car was involved in a single-vehicle crash some three to four miles from Leisha's home. Leisha died from stab wounds to the heart and lungs.
Pannell v. State, 686 N.E.2d 824, 825-26 (Ind. 1997).
[¶6] On February 21, 1995, the State charged Pannell with murder. Three days later, the court appointed Pannell's pre-trial counsel to represent him. This attorney completed some of the early tasks of representing Pannell, including deposing potential witnesses. However, he filed a motion to withdraw from the representation on July 6, 1995, citing a breakdown of the attorney-client relationship due to a significant difference of opinion about defense strategy and witnesses. Pannell's trial counsel then entered an appearance for Pannell and represented him throughout the remainder of his trial proceedings.
[¶7] The trial court held a jury trial on Pannell's charge from March 4-6, 1996. At trial, two of Pannell's daughters testified that they had seen him stab their mother, and the State presented the audio recording of the girls calling 911 to report the stabbing. On cross-examination, Pannell's trial counsel attempted to impeach the girls with inconsistent statements they had made during their depositions. These statements concerned the location of the knife used in the stabbing before it occurred; the girls' response times to hearing their parents fighting; and Pannell's reaction to one of the girls' attempts to intervene in the stabbing.
[¶8] In his case-in-chief, Pannell testified; he denied stabbing his wife. He claimed that she had come after him with a knife but that he had disarmed her, dropped the knife on the ground beside the house, and driven away in his car without injuring her. Pannell also tried to introduce evidence that one of his daughters had seen drug paraphernalia in her mother's room the day of the murder and that her mother had a history of drug abuse. The trial court excluded this evidence on the grounds that it was irrelevant. At the conclusion of the trial, the jury found Pannell guilty as charged, and the trial court entered judgment and sentenced him to sixty (60) years incarceration.
[¶9] Pannell appealed his conviction and argued that the trial court had abused its discretion in excluding the evidence of Leisha's alleged drug use because the exclusion had impacted his ability to present his defense. He also argued that his trial counsel had been ineffective for failing to present an ambulance run report that reflected the time he had been taken to the hospital after his automobile accident the night of the murder, as well as for allegedly failing to explore all potential defenses. Our Indiana Supreme Court affirmed Pannell's conviction, holding that he had not raised a defense placing Leisha's drug use at issue and that he had not demonstrated that his trial counsel was ineffective. Id. at 826. With respect to the ineffective assistance of counsel claim, the trial court noted that evidence of the time Pannell had arrived at the hospital bore " no discernible relation to the issues at trial." Id.
[¶10] Eight years later, on August 29, 2005, Pannell filed a pro se petition for post-conviction relief, which he later withdrew without prejudice. On June 13, 2011, six years after his first petition and fourteen years after his appeal, he re-filed his petition for post-conviction relief, again pro se. In this petition, Pannell claimed that his appellate counsel had been ineffective for failing to raise seventeen different claims of ineffective assistance of his trial and pre-trial counsel on direct appeal. Pannell also raised several prosecutorial misconduct claims and argued that his appellate counsel had been ineffective for failing to raise the same prosecutorial misconduct claims on appeal.
[¶11] On June 23, 2011, Pannell filed a motion to compel discovery, requesting that the post-conviction court compel the State to produce a copy of the taped 911 call admitted at trial and a copy of the police investigation report from his automobile accident the night of the murder. Four days later, he requested the post-conviction court to issue subpoenas for: (1) Detective David E. Phillips (" Detective Phillips" ) of the Indianapolis Police Department, a detective who had responded to the scene of the stabbing; (2) his trial prosecutor; (3) his pre-trial counsel; (4) his trial counsel; and (5) his appellate counsel. That same day, the post-conviction court granted Pannell's motion to issue subpoenas requiring Pannell's pre-trial, trial, and appellate counsel to appear but denied his request to issue subpoenas to his trial ...