Elkhart man revives efforts for new trial in 2002 murder

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The Indiana Lawyer on 07/11/2019 by Olivia Covington

A mentally disabled man serving a 55-year prison sentence for a murder 17 years ago that he maintains he did not commit is reviving his efforts for post-conviction relief.

Andrew Royer has filed a successive PCR petition in the Elkhart Circuit Court, alleging new evidence that he says proves he is actually innocent of the 2002 murder of Helen Sailor at an Elkhart apartment complex.

The Indiana Court of Appeals granted Royer permission to file the successive petition in May after years of failed appeals and PCR proceedings. Last year Royer moved to vacate his conviction under Indiana Trial Rule 60(B)(8), but after pushback from the state — which argued Royer could only seek relief through PCR proceedings — his team withdrew the motion to vacate in favor of pursuing post-conviction relief.

His 131-page petition filed last month alleges instances of withheld and/or destroyed exculpatory evidence, witness coercion, perjury, psychologically coercive interrogation techniques and ineffective assistance of counsel. Royer has maintained his confession was false and was the result of police coercion, and he now alleges jurors were not made aware of evidence against two other suspects in the murder.

According to court documents, Royer’s conviction hinged on two main factors: the statement of Nina Porter, a witness, and his confession.

Porter testified during the 2005 trial that Royer’s co-defendant, Lana Canen, once told her, while discussing Sailor’s murder, that “no one was supposed to get hurt.” Canen was then said to have mumbled, “Thanksgiving, thanks for giving death,” a reference to the murder taking place during Thanksgiving weekend.

According to Porter’s statements, Royer, who has the mental capability of a 10-year-old, was completely under Canen’s control and carried out the strangulation murder at her behest.

Canen was exonerated in 2012.

But according to Royer, Porter has since recanted her testimony and submitted an affidavit saying she testified at the urging of the Elkhart Police Department, which she claims told her she could lose her children or be charged with murder if she did not testify against Canen and Royer. Royer also writes in his PCR petition that Porter was paid $2,000 for her testimony and had formerly been a police informant — information that was not disclosed to the defense or the jury.

Jerome Johnson likewise recanted his statement saying Canen and Royer had visited his apartment, in the same complex where Sailor lived, on the night of the murder. Johnson now says he gave his statement after six months of police “hounding” him.

As to Royer’s confession, the successive PCR petition points to several pieces of newly discovered evidence that Royer’s team alleges shows the defendant was coerced, and video of the coercive interrogation was intentionally withheld and possibly destroyed.

On the issue of coercion, the petition notes Royer was not given his medication at the time of his two-day, hours-long interrogation, nor was he questioned in the presence of counsel or a mental health counselor. Despite knowledge of Royer’s mental capabilities, law enforcement did not take special precautions when interrogating him, the petition says.

In a recent deposition, the petition says the main interrogator, Detective Carl Conway, admitted to feeding Royer information about the murder that formed the basis for his confession. What’s more, the successive PCR petition says Conway was demoted for police misconduct related to his interrogation techniques in another case just months after his interrogation of Royer.

The petition also says Royer’s interrogation was video recorded, but the recording was not disclosed. As evidence of this assertion, Royer argues Lt. Paul Converse watched the interrogation on a closed-circuit monitoring system, and that system recorded interrogations dating back to at least 1995.

The video recording could be crucial to Royer’s case, his team argues, because allowing the jury to see the allegedly coercive interrogation tactics could have persuaded them to acquit him. The petition pointed to the Elkhart County case against Edgar Garrett, a defendant who was acquitted of murder after video of his interrogation and confession was shown to the jury.

Royer’s PCR team also points to the deposition of Detective Mark Daggy, who admitted he also watched the interrogation and believes it was one of the worst he has seen in terms of coercion and leading questions from Conway. Daggy further testified in his deposition that the Elkhart County Prosecutor’s Office did not believe Royer’s statement was reliable enough to bring charges against Canen.

Canen was eventually tied to Sailor’s murder through a latent fingerprint found at the scene. However, when Detective Dennis Chapman — the purported latent fingerprint expert — admitted he had no experience with latent prints, Canen was excluded as a match from the print, forming the basis of her exoneration.

As a motive for Sailor’s murder, the prosecution put forth a theory that Royer needed money and was frustrated with religion after attending his family Thanksgiving dinner in 2002. But according to his legal team, Royer’s family has testified that he did not ask for money that night, nor did the family discuss religion at all.

According to the petition, there was evidence against two other possible suspects that the jury did not hear about: Larry Wood and Tony Thomas.

Wood either admitted to the strangulation, or denied it during a polygraph that he failed, the petition says. Further, his shoes were found with an oily substance on them, similar to what was found on Sailor’s body. Additionally, Wood worked for the company that delivered medication to Sailor’s home, the petition says.

Thomas, for his part, was seen in the apartment complex on the day of the murders and was described as belligerent, sniffling and high, according to the petition. He was also seen acting erratically in the apartment building’s elevator around the same time Sailor arrived home that evening.

Physical evidence related to Wood and Thomas, including Wood’s bloody, oily shoes, was never sent off for testing, the petition says.

All of this newly discovered evidence, Royer’s petition argues, is evidence of a widespread practice among Elkhart police of obtaining false confessions through psychological coercion. The petition again pointed to the Edgar Garrett case where, like is alleged here, the defendant’s confession does not match the physical evidence or other statements made in the case.

There is no physical evidence linking Royer to Sailor’s murder.

Unrelated to the local prosecution, Royer’s successive PCR petition also alleges ineffective assistance of counsel. The petition says his trial counsel, attorney Chris Crawford, was ineffective for failing to impeach witnesses, investigate alternate suspects and alibi witnesses — including Royer’s family and counselors — or request a severance of Royer’s trial from Canen’s.

“In a complex murder case such as this — with a police investigation spanning nearly three years — Mr. Crawford’s witness list consisted of three witnesses,” the petition says. “Mr. Crawford and Ms. Canen’s attorney, Brett Zook, were so ineffective that they failed to call a single witness at trial. Further, Mr. Crawford failed to list a single exhibit on his pretrial order.”

All of this, Royer argues, entitles him to a new trial. His PCR proceedings are being led by Elliot Slosar, an attorney with The Exoneration Project in Chicago who is working with the Notre Dame Exoneration Project, and Fran Watson, the director of the Wrongful Conviction Clinic at Indiana University Robert H. McKinney School of Law.

The state has not yet responded to Royer’s PCR petition, though Elkhart County Prosecutor Vicki Becker, who led the prosecution against Royer and Canen in 2005, has previously challenged Royer’s argument that some investigators now believe he is innocent. The state has also denied withholding exculpatory evidence in Royer’s case in previous court documents. Royer’s prosecution took place while now-Indiana Attorney General Curtis Hill was the elected prosecutor in Elkhart County.

Royer’s team recently won a victory when their change-of-judge motion was granted on June 21. The case was transferred from Judge Teresa Cataldo to Kosciusko County Judge Joe V. Sutton, who is now serving as special judge.

In a motion for recusal, Slosar and Watson argued Cataldo could not be impartial because she previously worked as a deputy prosecutor alongside Becker and other law enforcement officials likely to testify. Additionally, Royer’s attorneys noted Cataldo has characterized their allegations of widespread corruption in Elkhart County as “defamatory.

Royer is currently incarcerated at the Pendleton Correctional Facility. He’s scheduled for release on March 3, 2030.

The case is State of Indiana v. Andrew Royer, 20D03-0309-MR-155.