from the Allen Superior Court The Honorable Frances C. Gull,
Judge The Honorable John F. Surbeck, Jr., Judge Trial Court
Cause No. 02D04-0006-CF-315
ATTORNEY FOR APPELLANT Michael K. Ausbrook Bloomington,
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana James B. Martin Deputy Attorney General
of the Case
This case returns to our Court following a ruling on Troy
Shaw's ("Shaw") federal habeas petition.
Specifically, in 2013, the United States Court of Appeals for
the Seventh Circuit ("the Seventh Circuit")
concluded that Shaw had been denied the effective assistance
of appellate counsel in his direct appeal because counsel had
failed to raise an appellate challenge to an amendment to
Shaw's charging information. The Seventh Circuit further
concluded that Shaw was entitled to a new direct appeal for
his 2001 murder conviction. Shaw v. Wilson, 721 F.3d
908, 912 (7th Cir. 2013), reh'g denied,
reh'g en banc denied, cert. denied. In this new
appeal, the sole issue for our review is whether the trial
court properly allowed the State to amend the charging
information seventeen months after the omnibus date.
Finding no error, we affirm the trial court's judgment.
the trial court properly allowed the State to amend the
charging information seventeen months after the omnibus date.
The facts supporting Shaw's conviction were set forth as
follows in his first direct appeal:
Shaw worked for the New River Subscription Service selling
magazine subscriptions. Eric Werczynski
["Werczynski"] was the boss of Shaw's group. On
June 5, 2000, Shaw and some of his co-workers arrived in Fort
Wayne. Part of the group had arrived earlier in the day and
had rented rooms at the Value Lodge on Coliseum Boulevard.
Shaw and his co-workers arrived, retrieved their luggage from
their vehicle, and went to obtain room assignments from
Werczynski. A man, later identified as Brett King
["King"], was discovered in one of the rooms rented
by Werczynski. Werczynski confronted King about his presence
in the room and an altercation began. King fled the room, but
the fight continued out on the walkway. King eventually
escaped and ran down the stairs into the parking lot.
Werczynski yelled for someone to "get the
motherfucker." Tr. at 165. Steve Johnson
["Johnson"] and Chris Starling, both New River
employees, chased King across the parking lot into a ditch
where Starling tackled King. Werczynski arrived and the fight
with King began again. Several other New River employees
joined in the fight against King, including Shaw, Johnson and
Ben Brooks ["Brooks"]. . . . King's dead body
was discovered later in the day on June 5, 2000, lying face
down in the same ditch where the fight took place.
Shaw v. State, No. 02A03-0205-CR-132 (Ind.Ct.App.
May 7, 2003).
On June 9, 2000, the State charged Shaw with Class B felony
aggravated battery. The trial court set the omnibus date for
July 31, 2000. On November 30, 2001, apparently after further
investigating the case and learning more about Shaw's
active role in King's beating and contribution to
King's death, the State filed a motion to amend the
charging information to charge Shaw with murder rather than
aggravated battery. Both the aggravated battery and murder
charges were based on Shaw striking and kicking King, which
led to King's death. Shaw had notice of the amendment,
and his trial counsel objected to it on the basis of Indiana
Code § 35-34-1-5 (1982), which, at that time, provided
that an amendment of substance could be made up to thirty
days before the omnibus date and that an amendment of form
could be made even later if not prejudicial. The trial court
granted the State's motion to amend the charging
information after a hearing. The trial court also granted
Shaw's motion for a continuance, and Shaw was given an
additional two months to prepare for trial.
At the February 2002 jury trial, Johnson and Brooks testified
that Shaw had repeatedly and viciously kicked King in the
head and face. Specifically, Johnson testified that as King
was on his hands and knees attempting to get up off the
ground, Johnson saw Shaw "football kick [King] in the
face, in the nose and eye area." (Tr. 252). King went
limp, and Johnson observed Shaw kick and stomp King's
face, head, and neck at least ten to twelve times. Brooks
testified that Shaw kicked King "like a field
goal." (Tr. 288). Brooks further explained that he
watched Shaw kick King in the head five or six times before
Brooks left the scene.
Dr. Joseph Czaja ("Dr. Czaja"), who conducted
King's autopsy, testified that King "died of blunt
force injury to the head due to multiple blows." (Tr.
340). Dr. Czaja explained that King's face had
"multiple bruises . . . . both eyes were essentially
swollen shut. Palpitating the face you could feel multiple
fractures of the underlying facial bones." (Tr. 340).
Dr. Czaja further explained that King's:
head was beaten so severely and the brain was shaken up so
much that it swelled up, or as we call it, became edemedis
with fluid to the point where that volume of the brain was
greater than the skull could bear. . . . So the swelling of
the brain pressing on the brain stem led to his death.
Fort Wayne Police Department Detective Stacey Jenkins
("Detective Jenkins") testified that during two
interviews with Shaw, Shaw had given him several different
accounts of what had happened on the day of King's
beating and death. In a June 5, 2000 interview, Shaw was
initially evasive and said that he had not taken part in the
beating because he had been asleep. Later in the interview,
Shaw admitted that he had chased King down the motel's
exterior stairway, but he denied participating in the
beating. During that same interview, Shaw told Detective
Jenkins that he had hit King with a closed fist while others
in the group were kicking him. During a second interview in
January 2001, in the presence of his trial counsel, Shaw
stated that he had swung a beer bottle at King as King had
run down the motel's exterior stairway. Shaw further
explained that after swinging the beer bottle, he had run
back upstairs and locked himself in his motel room.
At trial, Shaw testified that he saw Werczynski chasing King
and yelling at the magazine sellers to "get [King], kick
his ass, kick his motherfucking ass, kill him, hold him and
wait until I get there." (Tr. 392). Shaw explained that
he had asked some of the other magazine sellers what was
"going on" and was told to "get the f' out
of [there]." (Tr. 394). According to Shaw, he went to
his motel room and "just fell on the bed" and went
to sleep. (Tr. 394). He denied hitting or kicking King. He
also denied telling Detective Jenkins that he had been at the
ditch during the beating. Shaw further denied telling the
detective that he had hit Shaw.
During deliberations, the jury apparently had a question. The
court reporter's note explains as follows:
[J]ury has a question for the Court. Attorneys are called and
on their way. Defendant on his way up. Court sends a note to
the jurors that he cannot answer any further questions.
(nothing on the record).
(Tr. After Closing Statements 16). Six hours later, the jury
returned with a verdict convicting Shaw of murder. After
defense counsel polled the jurors and the trial court thanked
them for their patience and efforts, the trial court stated
I would also apologize to you, I'm sure it was
frustrating that we were unable to answer your questions.
I'm sure as a matter of hindsight you can understand that
if we were to answer those questions, had we answered those
questions directly as you asked it would be essentially
tampering with your deliberations which you are exclusively
charged with, and so our getting involved in it would be
inappropriate, but at the same time I'm sure it was very
frustrating to you that we were not able to answer those
questions for you. I appreciate your efforts as you worked
through those problems and arrived at a unanimous verdict.
(Tr. After Closing Statements 20). The trial court sentenced
Shaw to sixty (60) years.
On direct appeal, a public defender filed a "short brief
[challenging only the sufficiency of the evidence to support
Shaw's murder conviction] in which he observed that
'there [was] conflicting testimony as to whether the
Defendant, Troy Shaw, was in the ditch where Brett King was
murdered.'" Shaw, 721 F.3d at 912. This
Court concluded that we could not reweigh the evidence and
affirmed Shaw's conviction. Shaw, No.
Shaw subsequently filed a petition for post-conviction relief
wherein he argued that his appellate counsel rendered
ineffective assistance of counsel because appellate counsel
had abandoned trial counsel's challenge to the validity
of the amended charging information. Shaw specifically argued
that omitting the claim under Indiana Code § 35-34-1-5
constituted deficient performance because the claim was
significantly stronger than the sufficiency challenge that
appellate counsel had actually made. With respect to
prejudice, Shaw contended that the abandoned claim likely
would have succeeded if made, and that his conviction would
have been vacated. After the post-conviction court denied
Shaw's petition, Shaw appealed. This Court concluded
that, pursuant to Strickland v. Washington, 466 U.S.
668 (1984), appellate counsel's performance had not been
deficient. Shaw v. State, 898 N.E.2d 465, 470
(Ind.Ct.App. 2008), trans. denied. Specifically,
this Court pointed out that at the time of Shaw's appeal,
there had been no case law in which a court had invalidated
such an amendment to a ...