ANGOLA — A high-profile murder case will return to the Steuben Superior Court docket.
Last week, the Indiana Court of Appeals reversed the court’s denial for post-conviction relief for Zao Garth Burrell — found guilty by a Steuben County jury on March 16, 2013, of murder, attempted murder and carrying a handgun without a license.
The Court of Appeals affirmed Burrell’s 105-year sentence in early 2014.
On Sept. 17, 2014, a motion for post-conviction relief was filed but the proceedings were eventually canceled. The office of the State Public Defender withdrew from the case in August 2016. On March 30, 2017 the motion was dismissed without prejudice but filings continued in the matter, with Burrell represented by Andrew Teel, one of 12 candidates for an open position on the Indiana Court of Appeals in 2018. Teel withdrew from the case and Burrell hired Don Swanson, a longtime Fort Wayne criminal defense attorney, in September 2018.
Burrell, 31, has been housed in the Indiana State Prison, Michigan City, according to court documents.
Teel filed a 26-page amended motion for post-conviction relief Feb. 28, 2018, alleging that Burrell’s court-appointed trial attorney Linda Wagoner was ineffective and violated Burrell’s constitutional right to a fair trial.
Steuben Superior Court Judge William Fee denied the motion March 25, saying Burrell did not meet the burden of proof. Fee’s decision was appealed April 19 and on Jan. 2, the Court of Appeals published its opinion that Burrell was entitled to a hearing on the petition. Fee’s decision was reversed and the case was remanded to Steuben Superior Court.
In the analysis of its opinion, the Court of Appeals said Steuben Superior Court allowed briefings to replace a hearing.
“The court may receive affidavits, depositions, oral testimony or other evidence and may at its discretion order the applicant brought before it for the hearing,” says Indiana Post-Conviction Rule 1(5). “The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.”
Thursday, a status conference was scheduled for Feb. 10 at 1:30 p.m. Burrell will not attend. The parties may conduct the conference by telephone, say court documents.
Post-conviction relief petitions are rarely granted, said Steuben County Chief Deputy Prosecutor Travis Musser. The tactic challenges a conviction on the basis of an attorney’s ineffectiveness.
If some merit was found in such a proceeding, said Musser, it is also rare that a sentence would get overturned.
There is a possibility, he said, that following the Court of Appeals judgment, the case could be selected for hearing by the Indiana Supreme Court.
If it remains in the local court, following the Feb. 10 status conference, more dates may be set.
Burrell claims that throughout his case, Wagoner acted ineffectively. Public defender Robert Hardy was initially assigned but withdrew Sept. 10, 2012 after Burrell chose to represent himself. Wagoner was appointed as stand-by counsel and on Sept. 25, 2012 was appointed public defender at Burrell’s request.
She filed motions to change the venue and to change the judge, both which were denied, and deposed a list of witnesses that included eye witnesses to the murder of 40-year-old Brent Dombroski at a rural Angola home on June 3, 2012.
“In this case, petitioner’s counsel was faced with a mountain of evidence against her client, called witnesses and navigated shifting sands of witness testimony logically,” wrote Fee. Evidence against Burrell included a jail recording in which he admits to the murder. Witnesses called by Burrell vouched for his innocence.
Among Burrell’s claims is that a potential alibi witness was not allowed to testify. In his denial, Fee noted that the female witness — who allegedly would have testified Burrell was with her at the time of a police chase following the murder — came forward the day before the trial. While she had been among the list of witnesses, the deadline for an alibi defense had passed, says the decision.
Fee did find that Wagoner’s performance was deficient in the motion to change venue hearing but said he does not believe it had any bearing on the ultimate outcome. Five hundred forty Steuben County citizens were called as jurors and selection was painstaking, Fee wrote.
Burrell posits that Wagoner called a witness that confirmed that he was manufacturing methamphetamine in the home where the shooting occurred, which damaged his case. At his sentencing, Wagoner called no witnesses and did not argue in his behalf, says Teel’s briefing, simply asking the court to following sentencing recommendations of the Steuben County Probation Department.
In last week’s decision, the Court of Appeals notes the specific areas in which Wagoner is being questioned: the motion to change venue, objections during the trial, highlighting Burrell’s criminal activity, witness preparation, lack of preparation to debate jury instructions, a terse closing statement, lack of argument or witnesses during sentencing and overall professionalism.
Wagoner received a degree in criminal defense law from Indiana University in 1973 and graduated from IU School of Law, Indianapolis, in 1976. She is reportedly no longer practicing.