Opinion
22A-PC-2911
08-28-2023
Thomas Smith, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Russell W. Brown, Jr. The Region Lawyers, Inc. Merrillville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Samuel J. Dayton 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Lake Superior Court The Honorable Gina L. Jones, Judge The Honorable Kathleen A. Sullivan, Magistrate Trial Court Cause No. 45G03-2005-PC-16
ATTORNEY FOR APPELLANT
Russell W. Brown, Jr. The Region Lawyers, Inc. Merrillville, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE
Case Summary
[¶1] In 2018, Thomas Smith was convicted of murder. After an unsuccessful direct appeal, Smith filed a petition for post-conviction relief. Smith also filed a petition for DNA testing of certain evidence, which the Post-Conviction Court ("PC Court") denied. Smith appeals and argues that the PC Court erred by denying his petition for DNA testing. We disagree and affirm.
Issues
[¶2] Smith raises one issue on appeal, which we restate as whether the PC Court erred by denying Smith's petition for DNA testing.
Facts
[¶3] The underlying facts are set forth in Smith's direct appeal:
In October of 2014, Smith and David Krawczenia ("Krawczenia") ran a business in which Krawczenia bought vehicles, Smith repaired those vehicles at his business, All About Auto, and Krawczenia then sold the vehicles. During the course of Smith's and Krawczenia's business relationship, Krawczenia paid for the rent, tools and other equipment for All About Auto. As of November 2014, Smith owed Krawczenia approximately $16,000. Kevin Akers ("Akers") and Jack Hicks ("Hicks") worked for Smith at All About Auto. On more than one occasion, Smith had joked to Akers that it would be easier to "get rid of" Krawczenia than to pay the debt he owed to Krawczenia.
On Saturday, November 1, 2014, Hicks was working at All About Auto and helped Smith push a silver Grand Marquis
vehicle with a dead battery into the garage. Akers called Smith at All About Auto around noon that day, and Smith told Akers that he was waiting for Krawczenia to come there to collect some money. Akers arrived at All About Auto around 3:00 p.m. on November 1 to collect some money Smith owed Akers. Around the same time, Melissa Garcia ("Garcia"), the marketing employee for All About Auto, also arrived at the business. Garcia was looking for Krawczenia[,] and Smith told Garcia that Krawczenia had left All About Auto about an hour earlier that day.
Krawczenia lived with his girlfriend, Theresa Jacobs ("Jacobs"). On the morning of November 1, Krawczenia told Jacobs that he was planning to do some campaigning in the morning and then collect a $16,000 debt. When Krawczenia failed to return home that evening, Jacobs drove to All About Auto three separate times to look for him. The third time she saw Krawczenia's car-a silver Chrysler Sebring-in the All About Auto parking lot. She looked into the car and saw some papers, a water bottle, and a phone charger. The following day, November 2, Jacobs filed a missing person's report with the Portage Police Department.
On November 2, Akers met Smith at around noon for breakfast. Smith was agitated and, when Akers asked what was wrong, Smith replied, "It's done." Akers asked what was done, and Smith replied, "Dave [Krawczenia]. Dave's dead. I shot him." Smith told Akers that, on November 1, while Krawczenia was throwing spent fireworks out of the trunk of the Grand Marquis that was in the All About Auto shop, Smith came up behind Krawczenia and shot him. Smith told Akers he had shot Krawczenia "not long before" Akers had arrived at the shop on November 1. Smith told Akers that Smith put Krawczenia in the trunk of the Grand Marquis, pushed the vehicle outside of the shop, and had it towed off the All About Auto parking lot.
A tow truck driver who Smith frequently employed towed a vehicle he recalled as either a Grand Marquis or a Grand Victoria from All About Auto to a new garage that Smith intended to rent, Road Running Garage, on November 1. Smith met the tow truck driver at All About Auto and followed him to the Road Running Garage. Smith's cell phone activity was consistent with him being near All About Auto on November 1 until about 4:30 p.m., and then his cell phone activity placed him near the Road Running Garage.
On the morning of November 3, Reggie Russell ("Russell"), a friend of Krawczenia's, went to All About Auto to look for Krawczenia because Jacobs had told him that Krawczenia was missing. Russell saw Krawczenia's silver Sebring in the All About Auto parking lot. Smith arrived at All About Auto about twenty minutes later, and Russell told Smith that Krawczenia was missing. Russell asked Smith if he had seen Krawczenia, and Smith stated that Krawczenia had left with "two rugged black guys" in the early afternoon of Saturday, November 1, to purchase a vehicle. Smith told Russell that Smith had given Krawczenia $10,000 in payment on the debt he owed before Krawczenia had left All About Auto on November 1. Russell asked Smith if he had the keys to Krawczenia's Sebring and Smith did. Smith and Russell looked in the trunk of Krawczenia's Sebring and saw only some brake pads. Russell saw "a couple water bottles" inside the Sebring's interior.
On November 3, Detective Ed Jenkins of the Lake County Sheriff's Department ("Det. Jenkins"), who was assigned to investigate the missing person report regarding Krawczenia, spoke with Smith at All About Auto. Smith informed Det. Jenkins that Krawczenia had left All About Auto on November 1 with a "black couple." Det. Jenkins arranged for Smith to meet with him again for an interview on November 4 and 5 but Smith failed to attend either appointment. On November 5, Det.
Jenkins went to All About Auto to look for Smith and noticed that Krawczenia's silver Sebring was no longer in the parking lot.
On the morning of November 5, Smith made five phone calls. The location for each call was consistent with Smith being at the Mansards Apartments.
On November 14, the Lake County Sheriff's Department was notified that the silver Chrysler Sebring was located in the parking lot of the Mansards Apartment complex. The police transported the car to the police garage to search it. When the police opened the trunk, they found Krawczenia's body, absent the head and arms. Inside the Sebring, police found four water bottles, one of which was determined to have Smith's DNA on it.
On November 17, 2014, the State charged Smith with murder, a felony....Smith v. State, No. 18A-CR-1121, slip op. pp. 2-6 (Ind.Ct.App. Dec. 3, 2018) (record citations omitted). Smith's first jury trial ended in a mistrial. Id. at 8. At the conclusion of Smith's second jury trial, the jury found him guilty of murder. Id. at 9. The trial court sentenced Smith to sixty years of imprisonment. Smith appealed, and on December 3, 2018, this Court affirmed Smith's conviction in an unpublished opinion. See generally id.
[¶4] On May 1, 2020, Smith filed a petition for post-conviction relief. After several continuances, on September 28, 2021, the PC Court held a hearing on the petition for post-conviction relief. Smith expressed interest in filing a petition for DNA testing, and the PC Court again continued the hearing.
[¶5] On October 14, 2021, Smith filed a "Motion for Belated Petition for DNA Testing" and an accompanying petition for DNA testing. Smith sought DNA testing for: 1) swabs from the Sebring steering wheel, gear shift, and driver's side door handle for which there had been "an insufficient quantity of DNA" to be tested previously; 2) blood recovered from the trunk of the Sebring, the victim's jeans and belt, and the vehicle's armrest for which previous testing was unavailable due to "the profile[s] contain[ing] a mixture"; and 3) several other swabs and items recovered from the vehicle that were never submitted for DNA testing. Appellant's App. Vol. II pp. 32-34. Smith argued that "[t]here is a reasonable probability that [Smith] would not have been prosecut[ed] for or convicted of the offense if exculpatory results had been obtained through the requested testing and analysis." Id. at 35. At no point did Smith seek to amend his original petition for post-conviction relief to include his request for DNA evidence.
[¶6] The PC Court held a hearing on Smith's petition for DNA testing on October 19, 2021. After taking the matter under advisement, the PC Court denied the petition on November 23, 2021. Smith requested that the PC Court certify its denial of the petition for DNA testing for interlocutory appeal, and the PC Court did so; however, this Court declined to accept jurisdiction.
[¶7] Consequently, on April 6, 2022, the PC Court held a hearing on Smith's petition for post-conviction relief, which it denied on November 8, 2022. In this appeal, Smith challenges only the PC Court's denial of his petition for DNA testing; Smith does not challenge the PC Court's denial of his petition for post-conviction relief.
Discussion and Decision
[¶8] Smith argues that the PC Court erred by denying his petition for DNA testing. We disagree.
[¶9] "By statute, a person convicted of certain crimes, including murder, may petition for forensic DNA testing of material that may contain biological evidence related to the prosecution." Matheney v. State, 834 N.E.2d 658, 663 (Ind. 2005) (citing Ind. Code §§ 35-38-7-1 to -19). As relevant here, Indiana Code Section 35-38-7-8 provides that a petitioner for DNA testing must present "prima facie proof" of the following:
(1) That the evidence sought to be tested is material to identifying the petitioner as:
(A) the perpetrator of; or
(B) an accomplice to;
the offense that resulted in the petitioner's conviction.
* * * * *
(4) A reasonable probability exists that the petitioner would not have:
(A) been:
(i) prosecuted for; or
(ii) convicted of;
the offense; or
(B) received as severe a sentence for the offense;
if exculpatory results had been obtained through the requested DNA testing and analysis.
[¶10] Smith argues that the evidence for which he seeks DNA testing "is material to identifying the individual responsible for the crime Mr. Smith has been convicted of" and "there is a reasonable probability that Mr. Smith would not have been prosecuted or convicted of the off[ense] if exculpatory results had been obtained through the requested testing and analysis." Appellant's Br. pp. 16-17. Smith fails to explain how results from testing of the evidence he identifies would undermine his conviction. Accordingly, we agree with the State that Smith fails to present a cogent argument and that his argument is, therefore, waived. See Tate v. State, 161 N.E.3d 1225, 1231 (Ind. 2021) (finding "undeveloped" argument waived under Appellate Rule 46(A)(8)(a)).
The State also argues that Smith's argument is waived because Smith failed to amend his original petition for post-conviction relief. The State correctly observes that "[a] request for post-conviction DNA testing, whether or not made pursuant to the statutory scheme, is a petition for post-conviction relief, and therefore comes within the general rules governing post-conviction proceedings." Williams v. State, 791 N.E.2d 193, 195 (Ind. 2003) (citing Ind. Post-Conviction Rule 1 § 1(d)). According to the State, because Smith's petition for DNA testing is itself a petition for post-conviction relief, and because Smith had already filed a petition for post-conviction relief, Smith was required to amend his original petition to request DNA testing and his failure to do so results in waiver. We disagree with the State because Smith moved for permission to file a "belated" petition for DNA testing, and the PC Court apparently permitted Smith to file that petition. Appellant's App. Vol. II p. 29.
[¶11] Waiver notwithstanding, we fail to see how new DNA testing would reveal a reasonable probability that Smith would not have been prosecuted or convicted had exculpatory results from that testing been obtained. The evidence at trial revealed that Smith not only had a motive and opportunity to kill Krawczenia but that Smith admitted to doing so. Further, when Krawczenia first went missing, his Sebring was located at Smith's business. Smith had the keys to the Sebring, and the Sebring was moved after Smith failed to attend appointments with law enforcement. The Sebring was later located outside an apartment complex where Smith had been. Finally, a water bottle containing Smith's DNA was found inside the Sebring, where Krawczenia's body was also found.
[¶12] New DNA testing would not undermine Smith's conviction in light of the overwhelming evidence against him. Cf. Johnson v. State, 827 N.E.2d 547, 552 (Ind. 2005) (denying petition for DNA testing of hairs found in gloves petitioner claimed to have worn during commission of felony murder when it would not overcome evidence against the petitioner, including his confession to the offense); Matheney, 834 N.E.2d at 664 (affirming denial of petition for DNA testing when the evidence that defendant committed the murder was "overwhelming"). Accordingly, we cannot say that the PC Court erred by denying Smith's petition for DNA testing.
Conclusion
[¶13] The PC Court did not err by denying Smith's petition for DNA testing. Accordingly, we affirm.
[¶14] Affirmed.
Bailey, J., and Kenworthy, J., concur.