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COA rejects murderer’s ineffective counsel arguments

December 27, 2017

The Indiana Court of Appeals has upheld the denial of a murderer’s post-conviction relief petition, finding neither his trial nor his appellate counsel provided ineffective assistance.

In Dorian Lee v. State of Indiana, 71A05-1702-PC-326, Dorian Lee, along with two other men, broke into a home in 1995, raped a woman and participated in shooting four victims, killing one of them. Lee was ultimately convicted of murder, attempted murder, rape and burglary, and those convictions were upheld on direct appeal to the Indiana Supreme Court.

Lee moved for post-conviction relief in 2003 and was granted an indefinite continuance in 2007. He then raised an amended PCR petition in 2015, alleging ineffective assistance of trial and appellate counsel.

The post-conviction court denied Lee’s amended petition nearly a year ago, prompting his instant appeal. On appeal, Lee, proceeding pro se, revisited his ineffective assistance of counsel arguments, but the Indiana Court of Appeals rejected each of those arguments in a Wednesday opinion.

Judge Mark Bailey, writing for the unanimous panel, first said Lee’s trial counsel was not ineffective for failing to object to jury instructions regarding accomplice liability for murder and attempted murder, finding the post-conviction court did not provide erroneous mens rea instructions. Further, even though Lee’s counsel failed to inform the jury that it had to find a specific “intent to kill” to convict him of both direct and accomplice attempted murder, his trial was in 1995, prior to the ruling that both charges include the intent to kill language, Bailey wrote. 

Lee also argued the failure to include the intent to kill mens rea to the accomplice attempted murder charges created an impermissible “mandatory presumption,” but Bailey wrote the law at the time of the trial allowed mandatory presumptions to be sufficiently explained by other instructions. Thus, because the instruction regarding attempted murder included the applicable mens rea, the accomplice liability instructions were not subject to an unconstitutional presumption, he wrote.  

Next, Lee argued his trial counsel ineffectively failed to object to a lack of evidence that he attempted to murder Janice Boyd, one of the people in the home. But Lee and the other men lined the victims up and shot at them, Bailey said, sufficiently establishing his intent to kill Boyd.

The appellate court also rejected Lee’s argument that his trial counsel failed to properly impeach adverse witnesses and conduct discovery, noting specifically that Lee waived the discovery argument by failing to provide a cogent argument. The court also struck down Lee’s argument against his counsel failing to seek a separate trial from his co-defendants, with Bailey writing that issue was decided against Lee on direct appeal.

Finally, Bailey said the post-conviction court did not err in finding Lee lacked standing to challenge the search of the home that led to the discovery of the firearm used in the shootings. Further, because Lee failed to show his trial counsel was ineffective, he cannot successfully claim his appellate counsel was also ineffective for failing to raise the ineffectiveness of his trial counsel, the judge said.

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