New murder trial affirmed for Elkhart man with mental disability

Andrew Royer, foreground, is released from a wrongful murder conviction in April. With him are his mother and stepfather, Jeannie and Michael Pennington, right, and Chicago attorney Elliot Slosar. (IL file photo)

A man with a mental disability who has for years claimed he was wrongfully convicted of an Elkhart murder can proceed to a new trial after the Indiana Court of Appeals upheld a post-conviction relief order vacating his murder conviction.

Judge Melissa May wrote for the unanimous appellate panel Thursday in State of Indiana v. Andrew M. Royer, 20A-PC-955.

Andrew Royer was convicted in 2005 of the murder of 94-year-old Helen Sailor, who was found dead in her Elkhart apartment over Thanksgiving weekend in 2002. Royer was convicted alongside Lana Canen on the theory that Canen was the “brains” of the murder while Royer was the “brawn.”

Law enforcement identified Royer and Canen as suspects after Nina Porter, Canen’s friend and neighbor, told police Royer would do whatever Canen told him. Though he is in his 40s, Royer is described as having the mind of a child due to developmental disabilities.

Porter also testified that Canen told her, “Thanksgiving, thanks for giving death,” an apparent reference to the timing of the murder. Also, according to Porter, Canen said, “No one was supposed to get hurt.”

Detective Carl Conway interviewed Royer for the first time on Sept. 3, 2003, questioning him for hours in an unrecorded “pre-interview.” Royer gave two different accounts of the murder, both involving claims that he and Canen wanted money from Sailor. Conway then began recording his interview with Royer, who confessed on tape, though the recorded portion included what Judge May described as “leading questions.” Conway, however, testified that Royer knew details about the murder that had not been publicly released.

Conway then arrested Royer and interrogated him again the next day, when Royer told a third story: He killed Sailor because she was “preaching at him.” This interrogation again included an unrecorded portion.

As for Canen, Elkhart Police asked forensic specialist Dennis Chapman to review latent fingerprints found at the murder scene, and Chapman said one of the prints belonged to Canen. Chapman also testified at the murder trial, but it was later discovered that he had no experience with latent prints.

Royer was charged on Sept. 9, 2003, when Curtis Hill, who later served at Indiana attorney general, was the elected Elkhart County prosecutor. The current prosecutor, Vicki Becker, was the chief deputy who prosecuted the case. Canen was charged one year later after Chapman allegedly identified her fingerprint, which the state said was the “most important piece of evidence in this case.”

Royer sat for a third interview in June 2004, this time with Detective Mark Daggy. This time Royer had an attorney and denied involvement in the murder.

Royer and Canen were convicted in August 2005 and were each sentenced to 55 years in the Indiana Department of Correction. Royer’s direct appeal failed, as did his first petition for post-conviction relief.

Canen, however, was exonerated in 2012 after Chapman’s fingerprint evidence was discredited. The print, found on a pill bottle, actually belonged to one of Sailor’s home health aides.

Royer then moved for leave to file a successive petition for post-conviction relief, which the Court of Appeals allowed.

At the successive post-conviction hearing, law enforcement testified that Conway had been removed from the homicide unit before Royer went to trial because he gave false information to an attorney in another murder investigation. His removal was not disclosed to Royer’s defense before the trial.

Porter also recanted her testimony, claiming she implicated Canen because Conway threatened her with prison time and the removal of her children. She also said Conway fed her information about the homicide during an unrecorded portion of her interview. Also, Porter was paid $2,000 for her testimony, a fact the state did not disclose.

Finally, Conway testified that he “suggested” certain details about the murder to Royer during the interrogation and that he was aware that details Royer provided did not match physical evidence. Daggy had watched part of Conway’s interrogation through closed-circuit video and testified that it was “super leading” and “[p]robably one of the most difficult” interrogations he had seen.

Ultimately, Special Judge Joe Sutton, presiding in Elkhart Superior Court, grant Royer’s PCR petition, freeing him in April 2020. Sutton based his decision on the discredited fingerprint evidence, Conway’s interrogation and removal from the homicide unit, and Porter’s payment and recantation. The judge also noted Conway was aware of Royer’s mental disability but took no precautions.

The state appealed, and the case went before the Court of Appeals in February 2021. The COA affirmed Thursday in a 50-page opinion.

Looking first at the issues of the fingerprint and Porter’s testimony, May noted that in affirming Royer’s conviction and sentence on direct appeal, “we explicitly referenced this evidence — Royer and Canen were friends, Canen’s fingerprint was found in Sailor’s apartment, and Porter heard Canen talking about the crime — in holding that the state presented sufficient evidence to sustain Royer’s conviction.”

“The State referred to the misidentified latent fingerprint as the ‘most important piece of evidence in this case.’ The State used the fingerprint to place Canen inside Sailor’s apartment, and it argued Royer was also in Sailor’s apartment because Canen exerted substantial influence over him,” May wrote.

“The State used Porter’s testimony to exemplify the influence Canen exerted over Royer, and the State used Porter’s testimony to indicate that Canen had told others about her involvement in the crime,” the judge continued. “Consequently, we agree with the post-conviction court’s determination that the misidentified latent fingerprint, Porter’s recantation of her testimony, and Porter’s receipt of a reward that was not disclosed during trial constitute newly discovered evidence that undermines the State’s case against Royer and produces a reasonable probability of a different result on retrial.”

Similarly, the panel affirmed the finding that Conway’s removal from the homicide unit was newly discovered evidence that should have been disclosed. The prosecutor knew at the time of the 2005 trial that Conway had been removed, and that his removal was based on concerns about his credibility in future trials due to misconduct.

“The State notes that (Cliff) Williams was the chief public defender in Elkhart County at the time and an attorney from the public defender’s office represented Royer at trial. However, the State does not cite to any authority for imputing the knowledge of one public defender to an entire public defender’s office. Therefore, we decline to hold Royer knew or should have known about Detective Conway’s removal from the homicide unit due to the public defender’s office role in the events which led to Detective Conway’s removal,” the panel ruled.

What’s more, May wrote, Conway’s credibility was “integral” to the case against Royer, especially because no physical evidence linked Royer to the crime. The jury had to rely on Conway’s accounts of the interrogations given that no portions were video recorded and large portions weren’t audio recorded.

“Consequently,” the judge wrote, “we hold that the State’s failure to disclose Detective Conway’s removal from the homicide unit calls into question the integrity of Royer’s conviction and requires a new trial.”

As for Conway’s interrogation tactics, the panel noted Daggy “intentionally concealed” his observations about Conway’s “super-leading” style, thus undermining the jury’s evaluation of Conway’s testimony. Further, Conway contradicted himself by claiming at trial that he did not give Royer details about the murder then claiming the opposite at the successive PCR hearing.

May added in a footnote, “Detective Conway’s false testimony at Royer’s trial is particularly galling because he was an Elkhart Police Department detective at the time of Royer’s trial and, as of the evidentiary hearing on Royer’s successive petition for post-conviction relief, Detective Conway was still employed by the Elkhart Police Department overseeing the juvenile bureau and the special victims unit.”

Finally, the COA held that Royer was entitled to a new trial because “Detective Conway’s testimony at trial left the jury with the impression that he took Royer’s mental disabilities into account and took protective measures before interrogating Royer; whereas, Detective Conway’s testimony during the successive post-conviction evidentiary hearing reveals he cavalierly dismissed such concerns.”

Judges Elaine Brown and Leanna Weissmann concurred.

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