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Shaw v. State

Court of Appeals of Indiana

August 17, 2017

Troy Shaw, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal 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, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana.

          PYLE, JUDGE.

         Statement of the Case

         [¶1] 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.[1] 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. [2] Finding no error, we affirm the trial court's judgment.

         [¶2] We affirm.


         Whether the trial court properly allowed the State to amend the charging information seventeen months after the omnibus date.


         [¶3] 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).

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

(Tr. 342).

         [¶7] 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.

         [¶8] 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.

         [¶9] 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 as follows:

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.

         [¶10] 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. 02A03-0205-CR-132.

         [¶11] 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 ...

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