GRAHAM v. STATE (2025)

MEMORANDUM DECISION

[1] James Graham was convicted of five drug dealing felonies after a jury trial at which he appeared by counsel but not in person. Graham later petitioned pro se for post-conviction relief (PCR), arguing that a juror's misconduct and his defense counsel's conflict of interest deprived him of his constitutional rights to an impartial jury and effective assistance of counsel, respectively. After an evidentiary hearing, the post-conviction court denied Graham's PCR petition, concluding he failed to establish the juror's misconduct or his defense counsel's conflict of interest by a preponderance of the evidence. Graham now appeals that denial pro se. We find no error and affirm.

Facts

[2] In April 2019, police detectives conducted five controlled buys of illegal drugs from Graham (a.k.a. “Fuddy”). Among two confidential informants and one undercover police officer, Graham separately delivered the following:

• 0.05 grams of fentanyl;

• 0.14 grams of a fentanyl/methamphetamine mix;

• 7.14 grams of methamphetamine;

• 2.14 grams of methamphetamine; and

• 0.16 grams of heroin and 0.05 grams of fentanyl.

The State charged Graham with two counts of dealing in methamphetamine, a Level 3 and a Level 4 felony, and three counts of dealing in a narcotic drug, all Level 5 felonies. The State also alleged that he was a habitual offender.

[3] Graham failed to appear in person at his jury trial but was represented by court-appointed counsel during its entirety. Among other evidence, the State presented the testimony of the confidential informants and undercover police officer to whom Graham delivered the illicit drugs. The jury ultimately found Graham guilty as charged and that he was a habitual offender, and the trial court sentenced him to a total of 32 years in prison. This Court later affirmed Graham's convictions on direct appeal. Graham v. State, No. 21A-CR-212 (Ind. Ct. App. Sept. 28, 2021), trans. denied.

[4] Sometime after his jury trial, Graham learned that J.D., the mother of Graham's ex-girlfriend, had served on Graham's jury after denying during voir dire that she knew Graham or anyone with the nickname “Fuddy.” Graham also learned that his court-appointed trial counsel, Tyler Brant, once served as counsel for Russell Bruner, one of the confidential informants who testified against Graham at trial.

[5] Graham soon filed a pro se petition for PCR, claiming J.D. committed juror misconduct that deprived Graham of his constitutional right to an impartial jury. Graham also claimed that Brant had a conflict of interest that deprived Graham of his constitutional right to effective assistance of counsel. J.D. and Brant both testified at an evidentiary hearing on Graham's petition. Afterward, the post-conviction court concluded that Graham failed to prove J.D.’s alleged juror misconduct or Brant's alleged conflict of interest by a preponderance of the evidence. The court therefore denied Graham's PCR petition, which Graham appeals pro se.

Discussion and Decision

[6] “The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence.” Overstreet v. State, 877 N.E.2d 144, 151 (Ind. 2007). And “[a] petitioner who has been denied post-conviction relief faces a rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). “[T]he petitioner must convince the court on review that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Id. at 170. “Stated differently, ‘[t]his Court will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion.’ ” Id. (quoting Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998)). Further, the reviewing court accepts the post-conviction court's findings of fact unless clearly erroneous. Id.

I. Juror Misconduct

[7] Graham claims he sufficiently proved that J.D. committed juror misconduct by denying during voir dire that she knew Graham or anyone with the nickname “Fuddy.” As a result, Graham contends, he was deprived of his right to an impartial jury under both the Sixth Amendment to United States Constitution and Article 1, Section 13 of the Indiana Constitution. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ․”); Ind. Const. art. 1, § 13(a) (“In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury ․”).

[8] To prevail on his juror misconduct claim under the Sixth Amendment, Graham was required to show that J.D. “failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984). To prevail on his Article 1, Section 13 claim, Graham was required to show “that the misconduct was gross, and that it probably harmed the defendant.” Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988). Graham's claims fail at the first step of their respective tests.

[9] At the evidentiary hearing on Graham's PCR petition, J.D. acknowledged that Graham dated her daughter in 2010—nearly a decade before Graham's trial. But J.D.’s recollection of having ever met Graham in person was vague at best, and she claimed she did not recognize him when his photograph was shown at his trial. J.D. also testified that she knew Graham only by his nickname, “Fuddy,” not by his legal name, and she did not recall “Fuddy” ever being mentioned during Graham's trial. When told the nickname was used more than 70 times, J.D. reasoned—“I just didn't put two and two together, I guess.” PCR Tr. p. 206.

[10] J.D. maintained that she only realized her connection to Graham after his trial concluded. And the post-conviction court, “[h]aving had the opportunity to view [J.D.’s] credibility” at the evidentiary hearing, was “without reason to question her testimony.” PCR Appellee's App. Vol. II, p. 13.

[11] Because the evidence showed that J.D. was only incorrect—not dishonest—when she denied during voir dire that she knew Graham or anyone named “Fuddy,” the post-conviction did not clearly err by concluding that Graham failed to prove J.D.’s alleged juror misconduct by a preponderance of the evidence. See United States v. Perkins, 748 F.2d 1519, 1531 (11th Cir. 1984) (“[T]he first prong of the McDonough test requires a determination of whether [the juror's] answers were honest, that is, whether he was aware of the fact that his answers were false.”).

II. Conflict of Interest

[12] Graham next claims that he sufficiently proved his trial counsel, Brant, had a conflict of interest because Brant once served as counsel for Bruner, one of the confidential informants who testified against Graham at trial. As a result, Graham contends, he was denied his right to effective assistance of counsel under the Sixth Amendment. See generally Strickland v. Washington, 466 U.S. 668, 686 (1984) (“[T]he right to counsel is the right to the effective assistance of counsel.”); Wood v. Georgia, 450 U.S. 261, 271, (1981) (“[The] right to effective assistance of counsel necessarily includes representation that is free from conflicts of interest.”).

[13] “To establish a violation of the Sixth Amendment due to a conflict, a defendant who failed to raise the objection at trial must demonstrate that trial counsel had an actual conflict of interest and that the conflict adversely affected counsel's performance.” Woods v. State, 701 N.E.2d 1208, 1223 (Ind. 1998) (citing Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)). “[T]he possibility of conflict is insufficient to impugn a criminal conviction.” Cuyler, 446 U.S. at 350.

[14] At the evidentiary hearing, Graham presented a chronological case summary (CCS) showing that, a month before the controlled buys at issue in Graham's case, Bruner was charged with possession of a controlled substance in an unrelated case. The CCS also showed that, a month after the controlled buys, Brant appeared as substitute defense counsel for Bruner at a pre-trial conference. Brant did not recall appearing in Bruner's case and stated that the CCS showed he was simply covering for another attorney. Brant also explained that pre-trial conferences usually concern scheduling; thus, he would not have spoken with Bruner about the substance of his case, if at all.

[15] The CCS further showed that Bruner's regular defense counsel appeared throughout the remainder of his case, while Brant never appeared again. Bruner ultimately pleaded guilty to his criminal charge a week before Brant was appointed as Graham's defense counsel and more than a year before Bruner testified at Graham's jury trial. As the post-conviction court found:

There is no evidence that Brant's prior representation of Bruner was in any way related to Graham's case. Bruner was not a co-defendant in Graham's case, and there is no evidence that Bruner would have provided any information to Brant regarding Graham's case that would have created a conflict.

PCR Appellee's App. Vol. II, p. 5 (cleaned up).

[16] Because the evidence did not show that Brant's interest in Bruner's prior case actually conflicted with Brant's interest in Graham's subsequent case, the post-conviction court did not clearly err by concluding that Graham failed to prove Brant's alleged conflict of interest by a preponderance of the evidence. See Williams v. State, 525 N.E.2d 1238, 1240 (Ind. 1988) (finding no conflict of interest based on defense counsel's prior representation of adverse witness absent evidence that defense counsel either obtained relevant privileged information during prior representation of witness or had a pecuniary interest in possible future business from witness).

[17] Affirmed.

Weissmann, Judge.

Pyle, J., and Felix, J., concur.