EXHIBIT G 

Certified copy of Amendment to Petition for Post-Conviction 

Relief filed June 21, 2012 in Lana R. Canen v. State of Indiana, 

Elkhart Circuit Court, Cause No. 20C01-0908-PC-00018 

USDC IN/ND case 3:14-cv-00315-RL document 42-7 filed 09/10/15 page 1 of 11
STATE OF INDIANA )

) SS:

COUNTY OF ELKHART )

LANA R. CANEN

Petitioner,

IN THE ELKHART CIRCUIT COURT

CAUSE NOs. 20co1-0908-PC-18

20co 1-0409-MR- 1 18

V

STATE OF INDIANA

Respondent. CIËRK ËLK${ART'

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Petitioner, Lana R. Canen, by counsel, Cara Schaefer Wieneke, Special

Assistant to the State Public Defender, pursuant to Indiana Post-Conviction RuIe

l(a)(c) now amends her pro se Petition for Post-Conviction Relief previously filed on

August 27,2009 by substitution of the following paragraphs for those enumerated

(8) and (9) in the original Petition:

8. (a) First, trial counsel provided ineffective assistance in violation of

the Sixth and Fourteenth Amendments to the U.S. Constitution and Article 1,

Section 13 of the Indiana Constitution.

(b) Alternatively, evidence proving that the source of the latent

print found at the scene of the murder was not Petitioner constitutes newlydiscovered evidence.

(c) Finally, the continued denial of Petitioner's access to the

original latent print evidence collected in this case is in violation of the Due Process

Clause of the Fourteenth Amendment to the IJ.S. Constitution and Article 1,

Section L2 ofthe Indiana Constitution.

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On Thanksgiving 2002 Helen Sailor, an elderly tenant of the Waterfall

Highrise Apartments in Elkhart, was murdered. The State's theory was that

And.rew Royer and Petitioner, also tenants of the Waterfall Highrise Apartments,

entered Sailor's apartment, robbed her, and strangled her. Royer and Petitioner

v/ere jointly tried for felony murder.

The primary evidence against Royer was two recorded statements in which

he confessed to killing Sailor. The primary evidence against Petitioner was

testimony from a police detective that her fi.ngerprint was found on a tupperrlare

container inside Sailor's home that was believed to have been handled by the killer'

In her closing arguments at trial, the prosecutor described the tupperware

container asoincredibly importanfrevidence-[R. at{24]Jn faet, the proseeuto

summarized the evidence presented against Petitioner as follows: "Then we start to

come to the evidence against Lana Canen. All of Tuesday was pretty much spent

focusing on what was against Andrew Royer. Today we learned why Lana Canen is

also guilty of this crime." [R. at 730]. Thereafter, the prosecutor discussed the

tupperware container and described it as "the most important piece of evidence in

this case . . . ." [R. at 730]. In summation, the prosecutor argued,

The only reasonable conclusion, folks, is that the pill container was

moved" contemporaneous or near the same time of Helen's murder and

Lana's print was on it. . . . Because to find [Royer and Canen guilty],

all you have to do is look at [Royer's] statement and see [Canen's]

fingerprint.

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[R. at 732-33,734-35].

Petitioner was found. guilty of felony murder and sentenced to 55 years in

prison. She unsuccessfully appealed. her conviction and sentence. Thereafter, she

filed a pro sepetition for post-conviction relief. Undersigned counsel was eventually

appointed to investigate Petitioner's claims. As part of her investigation, counsel

hired a certified latent print examiner to conduct an independent comparison of the

print evidence used at trial to convict Petitioner.

On Febru ary 14,20]1L, counsel filed a motion for discovery, requesting that

she be granted access to the original latent print evidence collected in this case so

that it could be analyzed by the independent examiner. The State objected, and this

Court ordered. that counsel investigate whether trial counsel had hired an examiner

during trial to analyze the print evidence.

On-May G ¡¿07L, eounsel filed. her notiee with the Court regarding the results 

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of her investigation, and a renewed motion for discovery, again requesting that she

be given the opportunity to have the original latent print evidence analyzed by the

independent examiner.

Having been unable to obtain the original latent print evidence, counsel sent

the independent examiner high-resolution copies of the fi.ngerprint photos admitted

as evidence at trial and used by the d"etective to illustrate the analysis he performed

on the latent print. The independent examiner concluded that Petitioner was not

the source of the latent print found. on the tupperware container in the victim's

home.

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As a result, on May 10, 20L2 counsel filed a motion requesting that the

original print evid"ence collected in this case, to which she had up to this point been

denied access, be submitted for examination by the Indiana State Crime Lab, a

laboratory that employs certified latent print examiners and is used regularly by

prosecutors around. the state. After a status hearing on the motion, where the State

again objected to counsels request, this Court set the matter for a status hearing on

August 2,20L2,just 14 days prior to the scheduled evidentiary hearing in this case.

Petitioner's Post-Conviction Claims

(a) Trial counsel provid.ed ineffective assistance of counsel by failing to

properly challenge the latent print evidence presented against Petitioner at trial,

resulting in counsels inability to present an adequate defense on Petitioner's

behalf. In order to prove a claim of ineffective assistance of trial counsel, one must

satisfy both prongs of the following test: a showing that counsel's performance fell

below an objective standard ofreasonableness based on prevailing professional

norms ('defi.cient performance"); and a showing that there is a reasonable

probability that, but for counsel's errors, the result of the proceeding would have

been different ("prejudice"). Striclzland u. Washington, 466 U.S. 668, 687 (1984)'

The key piece of evidence presented against Petitioner at trial was testimony

from Detective Dennis Chapman, alleging that Petitioner was the source of a latent

print found on a tupperware container in the victim's apartment that was believed

to have been touched by the killer. But Detective Chapman was not qualified to

conduct latent print comparisons. Had trial counsel properly investigated Detective

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Chapman's lack of qualifi.cations, he would have learned that Detective Chapman

was not qualified to determine the source of the latent print.

Furthermore, while counsel apparently hired a retired detective to "verifir"

Detective Chapman's conclusion, counsel failed to hire an examiner qualifi.ed to

conduct latent print comparisons. Because defense counsel's examiner also lacked

the qualifications to conduct latent print comparisons, he, too, erroneously believed

that petitioner may have been the source of the latent print. Thus, counsel failed to

discover that the latent print found. on the tupperware container did not belong to

Petitioner.

Finally, had counsel hired a qualified latent print examiner to analyze the

key piece of evidence against Petitioner in this case, he would have learned that

petitioner was not the source of the latent print found on the tupperware container'

A qualified examiner would have assisted counsel in properly challenging the

admissibitity of Detective Chapman's testimony at trial, and in conducting a

vigorous cross-examination of Detective Chapman and his faulty conclusion.

Additionally, a qualified examiner would have enabled counsel to present

exculpatory evid.ence on Petitioner's behalf that showed that she was not the source

of the print believed to have been teft by the actual murderer.

Ha¿ counsel not rendered defi.cient performance, as discussed above, there is

a reasonable probability the result of the trial would have been different. Douglas

Garman, the victim's grandson, testified at Petitioner's sentencing hearing. He

stated that he sat through the entire trial, from jury selection to pronouncement of

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the verdict, because he wanted to assume the role of a juror and listen to the

evidence as it was presented. [Sent. Tr. at 26]. Garman indicated that he agreed

with the jury's verdict. He articulated his reasons for believing Petitioner was guilty

as follows:

Probably the most aggravating thing to me as a juror sitting in the

audience is the fact that if she would have not told a lie, a simple "I've

been in the apartment before," she would probably not be sitting where

she's sitting right now. But since she told a lie, remained telling a lie,

"I've never been in that apartment," and that fi.ngerprint was matched

the way it was, that was enough to convince me as a juror.

[Sent. Tr. at 27-281.

This insight, coupled with the State's arguments during her closing that the

print evid.ence was the "most important piece of evidence in this case" demonstrates

that had counsel properly challenged the latent print evidence and presented

evidence proving that the print found on the tupperware container did not belong to

Petitioner, in Garman's words Petitioner "would probably not be sitting where she's

sitting right now." Thus, Petitioner suffered prejudice as a result of counsel's

deficient p erformance.

&) Assuming for the sake of argument that counsel did not render

deficient performance at trial by taking steps, however inadequate, to review

Detective Chapman's conclusion, the discovery after trial that Petitioner was not

the source of the latent print constitutes newly-discovered evidence. Indiana PostConviction Rule 1 (lXaXa) provides, in pertinent part, that any person who has

been convicted and sentenced for a crime and who claims "that there exists evidence

of material facts, not previously presented and heard, that requires vacation of the

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conviction oï sentence in the interest of justice" may raise such a claim in postconviction proceedings. The discovery of new evidence requires a new trial when the

petitioner demonstrates the following:

(1) the evidence has been discovered since the trial; (2) it is material

and relevant; (3) it is not cumulative; (4) it is not merely

impeaching; (5) it is not privileged or incompetent; (6) due diligence

was osed to d.iscover it in time for trial; (7) the evidence is worthy of

credit; (s) it can be produced. upon a retrial of the case; and (9) it

will probably produce a different result at retrial.

carter u. state,73B N.8.2d 665, 671 (Ind. 2000)'

Assuming that trial counsel's efforts in hiring an examiner to "verifr"

Detective Chapman's conclusion was considered "due diligence" and, thus, not

deficient performance, then the recent discovery of Petitioner's exclusion as the

source of the latent print meets all nine requirements listed above and qualifi.es as

newly-discovered evidence.

(c) Petitioner has repeatedly asked for, through formal requests to

the Court and informal requests to the prosecutor, an opportunity to have the

original latent print evidence examined by an independent qualified latent print

examiner. "p]he suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution." Brady u.

Maryland,, BTB U.S. 83, 87 (Ind. 1963). Such evidence is discoverable even after

conviction . See Sewell u. State,5g2N.E.2d 705, 708 Qnd. Ct. App. 1992), trans'

d,eníed, (holding Brad.y evidence was discoverable in post-conviction proceedings

"notwithstanding a lack of strict compliance with normal discovery procedures").

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The State has objected. to Petitioner's repeated requests, arguing that it has

an interest in preserving the finality of judgments and that Petitioner has no right

to discover the same evidence twice. However, as the Court of Appeals of Indiana

noted in sewell,"the Brad,y rule can operate to require disclosure of evidence not

otherwise discoverable." Sewell, 5g2N.E.2d at 707 . This is particularly true where,

as in this case, Petitioner has established the tikelihood of a favorable result on

retesting. Thus, the exculpatory potential of this evidence is very high'

The State has also argued that Petitioner's certified latent print examiner

was biased" because she is a "hired. gun" for the defense. In response, Petitioner

suggested, that the original evid.ence be submitted to the Indiana State Crime Lab' a

laboratory that the State must admit has no bias toward the defense, for an

independ,ent examination. The state objected to this request as well. A motion on

this request is still pending as of the date of filing of this Amendment'

If petitioner is still denied access to the original latent print evidence so that

a full independent examination can be done, such a denial is in violation of her right

to the due process of law under both the State and Federal Constitutions.

WHEREFORE, Petitioner, by counsel, amends her pro se petition for postconviction relief previously filed on August 27 , 2009 by substitution of the above

paragraphs.

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Respectfully submitted,

Cara Schaefer neke

Special Ass't to the State Public Defender

WmNpxn Lew OppICE, LLC

P.O. Box 188

Plainfield, Indiana 46168

PH (317) 331-8293

FX (317) 839-0536

E -mail: car a@wíenekelaw. com

Attorney Number 2437 4-49

CpRtmlcetp on SPRvrcP

I certifi' that I have served a copy of the foregoing on the following, via U.S.

Mail, postage prepaid, on this 18th day of June, 20L2'-

David Francisco

Elkhart County Prosecutor's Offi.ce

301 South Main Street, Suite 100

Elkhart, Indiana 46516

Cara Schaefer

Special Ass't to the State Public Defender

WIpNPNP LEW Or,rTCE, LLC

P.O. Box 188

Plainfield, Indiana 46168

PH (317) 331-82e3

FX (317) 839-0536

E-mail: car a@wíenekelaw.com

Attorney Number 2437 4-49

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CLERK'S CERTIFICATE

STATE OF INDIANA,

SS:

ELKHART COUNTY,

I, Wendy Hudson , Clerk of the Elkhart Circuit Court within and for the

County of Elkhart and State of Indiana, the same being a Court of Record, having a Seal, do hereby certify that the

above and foregoing is a full , 

true and complete and correct copy of the

AMENDMENT TO PETITION FOR POST-CONVICTION RELIEF

9 Pages

Filed with Court oî:0612112012

IN RE

The State of Indiana

VS

LANA RAE CANEN

CAUSE #: 20C01-0409-MR-001 18

As the same remains on file and appears of record in said Court, and of which files and records I am the legal

custodian.

IN WITNESS WHEREOF, I have hereunto set

My hand and affixed the Seal of said Court at the city

of Gosheno Indiana, this I't day of April, 2015.

l,** //.,_¿. __

Clerk Elkhart Circuit Court Y.æ,

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