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Keith B. CANAAN

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: December 28, 1985
Date of birth: November 2, 1958
Victim profile: Lori Bullock, 22
Method of murder: Stabbing with knife
Location: Evansville, Vandenburgh County, Indiana, USA
Status: Sentenced to death on November 26, 1986
 
 
 
 
 
 

CANAAN, KEITH B. # 48

ON DEATH ROW SINCE 11-26-86

DOB: 11-02-1958
DOC#: 865840 White Male

Vanderburgh County Circuit Court
Judge William H. Miller

Prosecutor: Robert J. Pigman, Chris Lenn

Defense: Barry L. Standley, Beverly Harris

Date of Murder: December 28, 1985

Victim(s): Lori Bullock W/F/22 (No relationship to Canaan)

Method of Murder: stabbing with butcher knife

Summary: Police responded to a dispatch to an Evansville apartment building. Inside, they discovered the body of Lori Bullock laying on a bed with a butcher knife in her neck and cuts to her vaginal area. The apartment was ransacked and money and jewelry were missing.

Police recovered a Kool cigarette butt outside the apartment with saliva consistent with Canaan. His fingerprints were found on a package of spaghetti in the kitchen. Canaan was identified by those in an upstairs apartment as having knocked on their door near the time of the murder.

Canaan had previously been at the apartment and was invited into the living room by the victim's roommates after he knocked on their door claiming to be looking for girls who lived upstairs. When arrested, Canaan had a package of Kool cigarettes on him.

Conviction: Murder, Burglary (B Felony), Attempted CDC (A Felony), Habitual Offender

Sentencing: November 26, 1986 (Death Sentence; not sentenced to any term of years)

Aggravating Circumstances: b(1) Burglary, Attempted CDC

Mitigating Circumstances: None

ClarkProsecutor.org

 
 

Call For A Retrial !

CCADP.org

The information below provided by the supporters of Keith Canaan

Victim of the Crime

On 28 December 1985 a young woman called Lori Bullock was found lying on her bed, naked.  Her body and the crime scene area were covered in blood after she had been brutally stabbed to death in this horrific murder.

Scene of the Crime

Evansville, a small town in the State of Indiana.  At the east of the town, there is a building complex called Fairmont Apartments which comprise of many apartment blocks.  The apartment which the victim occupied was 1 of 4 set within the building.  The building comprised of 2 downstairs apartments, and 2 upstairs apartments.  The entry into the building is set on the middle floor, with 2 sets of stairs on this hallway. On the left hand side of the hall is a set of stairs leading down to the lower level (downstairs), whilst turning right on the main hallway leads to the staircase to the 2 upstairs apartments.  Lori Bullock occupied a downstairs apartment which she shared with 3 other female roommates; Chris Hilsmeyer, Jean Traver and Linda Rush. The other occupants of the apartment building are Natasha and Matthew Clark who live in one of the upstairs apartments, and Jennifer Griffiths and Michelle Brudor who occupy the other upstairs apartment

Background Information

On 28 December 1985, between the hours of 9pm, up to whenever (?) Lori was actually murdered, Lori was supposed to be at home in the apartment alone. This was said to be known, because all the other room-mates had gone out for the evening, either to work, or elsewhere.  Linda Rush had borrowed Lori's car, and then telephoned Lori at the apartment at around 9pm, to ask if she might be able to keep the car, out to later in the evening.  As expected. "Lori said that since she was not going anywhere, and would just be staying at home, that she would not be needing the car back until the time for her to go to work in the morning".  (This was the last known time that anyone had spoken to Lori, the  last time she was known to still be alive!). 

There had been several calls placed to the apartment, after the phone call by Linda at 9pm.  These calls  were made by Lori's boyfriend (Rick Bethe) and his friend (Kevin Kolley) who had been together that evening.  These calls remained unanswered, and were placed between 9pm (28 December) through to 1am (29 December).

Earlier that evening, Rick Bethe had been at the apartment.  Lori and Rick had had sex, but he withdrew before ejaculation.  It was found that Rick's friend, Kevin Kolley had been at the apartment earlier that same evening, between the hours of 6pm and 8pm.  Kevin had been dating Linda Rush, but she was now seeing someone else on this evening, and when he had found out about it, he got into a big fight with Linda.  He actually hit Linda in the face during the fight, and when Kevin left the apartment, he was so mad  that he punched his fist into his car window.  

Kevin Kolley then left the apartment, alone, leaving Rick Bethe  there with Lori for a while.  Then at around 8.45pm Kevin Kolley returned and picked up Rick.  They both left Lori alone in the apartment  and went to the ARC Lanes Bowling and Pool Room to shoot some pool, until around 10.30pm, and no later than 11pm.  Both say they never returned to Lori's apartment.  However they did drive by, looking at the apartment building on 2 different occasions, after leaving playing pool. Both say that in the 2 occasions they drove by the apartment, they did not get out of their  car, they only just drove by to look.

On 29 December, at approximately 2.45am, Linda Rush came home from her date with Mike Lukasik, to find the door to the apartment unlocked (not open as the State claimed).  On entering the apartment Linda found it had been thoroughly ransacked and everything had been gone through.  She looked around the apartment further, walking into Lori's bedroom, she flicked on the light switch and found Lori's naked body at the foot of her bed.  Lori had been stabbed to death by a knife that had been removed from one of the kitchen cabinets, the knife was still in Lori's body, there were cuts on her throat, chest area, arms and legs. Her body had been brutally stabbed 22 times and there was a gaping wound right at her pubic bone area.

Case Study - Introduction

In 1981 Keith moved into Kevin and Julie's apartment (Keith's brother and his girlfriend)  in Springfield, Ohio. There was a lot of trouble during this time, with Kevin and Julie constantly fighting.  Julie blamed Keith for Kevin's drinking and going out.  Keith used to pay them money towards their accommodation rent, but after a couple of weeks, the Landlord wrote asking them to move out; the money Keith was giving to Kevin and Julie was not being used to pay the rent.  Things got so bad that Keith actually packed his bags, quit his job and moved out of the State to start anew.

In November 1985 Keith was released from prison, after serving a 3 year sentence.  Keith secured himself a job in Evansville as a Welder for The Creative Craftsman Company.  He was invited to  move in to Kevin and Julie's apartment, where they lived in Evansville, Indiana.  They had 2 children now, and Julie was heavily pregnant with their third.  Things hadn't changed, Kevin and Julie still constantly argued, and once again Julie started to blame Keith for his brother's drinking and all, but Kevin's actions were all his own. 

Prior to 28 December 1985, there had been a couple of times that while living with Kevin and Julie that things had got so bad in the household that Keith had packed up and was ready to leave and get away from the situations.  But Kevin asked Keith to stay.  In one particular incident, about 1 weeks prior to Keith's arrest; Keith was all packed up and at the Evansville Bus Station (Kevin was also with him; he was going to leave Julie - at least that is what he said). 

Kevin called Julie from the Bus Station, they talked, and Kevin persuaded Keith to go back to the apartment with him. Keith didn't wish to break his parole, so decided that it was the best thing to stay with them.  Keith went out of his way to try and improve the situation at home, he wouldn't even allow Kevin to join him when he went out drinking, he just didn't want Julie to be mad with him for the way things were between her and Kevin.  Keith only lived with Kevin and Julie for 37 days, before being arrested and charged with the murder of Lori Bullock.

The Events of  28 / 29 December 1985

Kevin worked in a Bob Evans Restaurant, which had a strict dress code for its staff when working evenings; namely staff were required to wear black pants, black dress shoes and a white shirt.  Kevin's pants were dirty, so he asked Keith if he could wear his black cord pants.  Keith agreed, since he wasn't wanting to wear them.  Kevin left the apartment at 3.30pm to go to work.  At around 7pm, Keith told Julie that he was going out to drink some beer.  But he was going to stop by Bob Evans' where Kevin worked and get maybe a bite to eat or coffee first.   She replied 'Don't you get Kevin out drinking with you'.  Keith said 'OK'.  Keith stopped off at Bob Evans Restaurant where Kevin worked.  He got a cup of coffee and sat talking to a few people he knew there.

Later, Kevin approached Keith from behind and asked Keith where he was going to go afterwards. Keith replied that he was going across the street for a while to drink some beer.  Shortly afterwards, Keith left Bob Evans Restaurant and went across the street to Chi-Chi's Bar.  Keith was there about half an hour before Kevin came in.  Kevin had just left work and was still wearing the black cord pants, black dress shoes and white shirt.  Keith told him to either return back to work, or go home because he didn't want to get blamed by Julie for him being out drinking, and possibly end up in a situation where Julie would tell Keith to move out once again. 

In any event, Kevin continued to drink a couple of pitchers of beer with Keith, but Keith didn't want Kevin there at all and didn't want to encourage him to stay any longer.  So Keith told Kevin that he didn't have enough money for another pitcher of beer, and pulled out a few one dollar bills to try and prove his point, in the hopes that Kevin would leave, which he did.  But Kevin did not leave the bar, he went to get another pitcher from a guy he knew who was serving behind the bar.  Then finally, on leaving the bar, Kevin told Keith that he was going over to Jennifer Griffith's apartment to buy a couple of joints.  This was about 9pm, when Kevin left the bar, he was still wearing the black cords pants, black dress shoes and white shirt.  Keith didn't see Kevin again until 6.00am on 29 December.

Keith then went over to the Fairmont apartment complex where he knew 2 people (Jennifer Griffin and Michelle Bruder) who lived in one of the upstairs apartments (in the same building as Lori Bullock).  He used to visit Jennifer's and Michelle's apartment a couple of times every week to buy drugs.  This is how Keith became a suspect, since he visited the building complex on the evening of 28 December 1985.  Keith did not enter the downstairs level of the building, the upstairs level was the only place that Keith went.  Keith was visiting Jennifer's apartment to attempt to obtain some drugs.  He knocked on the door, but there was no reply.  Whilst knocking on the door, Keith could hear the noise of a party, coming from the other upstairs apartment across the hall (the whole of this hall area is no larger than 8ft square).   

The apartment was owned by Natasha and Matthew Clark. Keith knew that Jennifer was friendly with her neighbours, the Clark's, so it was possible that she could be in the party.  A person answered the door (it was then apparent that a party was taking place inside this apartment). Keith asked if Jennifer  was inside their apartment at the party.   Keith was told no, but stood a short while talking to the person who had answered the door. A few other people who had been in the party came to the door to see who it was, and joined in their brief talk.  Before leaving, Keith asked if anyone wanted to buy the push bike he had.  The reply was 'no', they didn't want the bike, also they didn't know  where Jennifer and Michelle were or when they would come home.  They shut the door.

After the door at the Clark's was shut, a girl inside the party there (Dana Dunn), looked through the peep-hole in the door, viewing the upstairs hall-way area where Keith was.  Keith's actions are clearly verified by her viewing of him.  After the Clark's door was shut on Keith, he decided to knock on Jennifer's and Michelle's apartment door one last time before leaving, so he walked over to their door and again knocked a few more times (he thought maybe Jennifer and/or Michelle may not have heard his knocking the first time).  After getting no answer again, Keith walked down the stairs, went straight out of the front door, and got on is 10 speed bike, and left the apartment building.

After leaving the apartment building, Keith rode his bike to Chi-Chi's, but the place was real quiet, so Keith decided to go down the road to Bennigan's Bar & Restaurant.  The bar was certainly crowded that evening, and could only be likened to been packed into a sardine tin.  Keith spent over half an hour here, drinking beer, watching people dancing and exchanging the occasional 'hello' and/or smile with a few young ladies. 

He walked over to the guy who was playing tapes and records of music inside the bar for people to dance to, Keith requested him to place a couple of songs. He then mingled around,  and after a short while, Keith moved from the crowded bar section to the tabled section where food can be ordered.  He sat down, and waited to be served. (It should be noted, that Keith had to leave the Bar section and go into the tabled area of Bennigan's in order to have his food ordered.  Food is only served in the tabled section area of Bennigan's). After a few moments, the waiter (Rodney Crice) took Keith's order for a sandwich.  Keith sat there for a good while, enjoyed a beer and his sandwich. 

After Keith ate the Hamburger, and paid for the check, he got up and went to use the bathroom. After using the bathroom, he went back to the crowded bar area, and it is then that after a little while Keith started talking to a guy called Kirk Fifer.  After talking a while, they decided to leave Bennigan's in favor of another venue the 'Silver Dollar Bar' across town.  Kirk was driving an International Pick-Up truck.  Kirk told Keith to put his bike on the back of the truck.  Unfortunately, when trying to manoeuvre the truck out of the parking area, Kirk messed up and the Police pulled them over.  

The Police recorded the offence, and then let Kirk drive on.  Now they were ready to move on, and to another bar.  It was at this bar, just before closing time that Keith got involved in a fight with one of three bikers.  It was at this point that Kirk had offered to drive Keith back to his side of town.  In the truck, Keith pulled out some money from his pocket to pay the guy for some gas, because Keith wanted a ride back over to the East side of Evansville and to Jerry's Restaurant.

At 3.30am on 29 December, Keith visited Jerry's Restaurant to get some breakfast before going home.  After eating breakfast, Keith returned home sometime between 6am-7am to find the house had been torn up, and a speaker had been all ripped and broken.  It was obvious that there had been some sort of fight between Kevin and Julie. When Keith had seen the mess of Kevin and Julie's apartment, after their row, he decided he had had enough and was going to leave the area and start a new life elsewhere.  He was tired of their fighting and arguing. 

Keith wasn't sure who was at home; so he made himself a cup of coffee, and just sat down on the couch in the living room for a while; waiting to see who came downstairs, or woke up.   Keith was still sat on the couch, drinking coffee and playing around with his guitar when Kevin came downstairs from his bedroom.  Kevin told Keith that the Police had been called to the house as a result of a fight between him and Julie; and that Julie had taken the children and left Kevin to move in with her Mom and Dad. She had said that she would return (with a moving van) later in the day to take all of her items and children's things out of the house. Keith then got up and decided to go over to Mark and Reneea Gilmore's apartment across the street.  Kevin stayed at the apartment himself for a while.  Keith drove over to Henderson with Mark and Reneea (and their young child); they got a bag of pot and returned to their apartment.  Upon returning, Keith went across the road to get his guitar and Kevin returned to the Gilmore's apartment with Keith.

Keith did not really want to go back across the road to get his belongings from the apartment because Julie had told Kevin that she would be returning later with a moving van; and Keith did not want to get involved in any arguments about the same old problems again. Kevin wanted to go to Florida with Keith to make a new start, Keith didn't want that, so they argued a while.

There were several plain clothed Policemen appeared outside Kevin's apartment, but Kevin assumed they were there because of the fight the night before. After a little while, once the plain clothed Policemen had gone, Kevin went across the road to the apartment to retrieve Keith's possessions.

When Kevin returned to Mark's house with Keith's belongings, they continued drinking and playing guitars a while.  Kevin constantly kept asking Keith not to leave until later.  When Keith had had enough, and didn't want to wait any longer he left the house.  Unfortunately, Keith got lost on the East side of Evansville, because he didn't really know the area that well, plus Kevin gave Keith some wrong directions to get to the main road, that would take Keith to the bridge in Evansville that lead across the River into Henderson, Kentucky.  So Keith found a place to sleep off the drunkenness he was feeling.  Next morning he got proper directions from a person in a local store.  Keith was
walking down the road  and started hitch-hiking for a ride, out in a clear open area on this busy road in town.  When Keith had been out there a while, he was stopped by a Police officer who started asking Keith questions on who he was, and where he was going.  Keith knew he could not tell the truth, because  he was standing  with all his things, and heading towards the bridge not only out of town, but the State.  After all, Keith was still on parole at this point in time and knew that if he gave his real name to the Police, they would find out he was still on parole, and would arrest him for Parole Violation.  But when other Officers came by the road, they told Keith he was fitting with the description of a person they were looking for, for questioning of a murder that had happened.

They put Keith under arrest, and into the Police car.  Keith told them who he really was, and the Police told him he was under arrest for questioning of a murder that happened.  Keith was questioned, he told them where he was during 28 and 29 December, and told them what he was wearing during that time. After giving Keith a cup of coffee during questioning, they played a tape recorded statement of his brother Kevin.  After hearing the contents of the statement, Keith knew he was going to need an attorney.  The questioning was ended, so that all of this could be dealt with in the courts.

POLICE INVESTIGATIONS, THE TRIAL AND INEFFECTIVE DEFENSE COUNSEL

Background Information

A week prior to the murder of Lori Bullock, Keith had visited the Fairmont Apartment complex  to visit Jennifer at her upstairs apartment.  (On Keith's way into the building he ran into one of Lori's room-mates). As Keith was only at Jennifer's place a short time, he got himself a little pot and was going to party with her, but she was getting ready to go out somewhere else. At this point, Keith had a full case of beer with him.  As he was leaving the upstairs level and getting ready to go out the front door of the building, he met a couple of girls (Chris and Jean (Lori's room-mates)) that lived in the lower apartment. They invited him into their apartment, they shared a couple of beers and smoked a joint as they sat talking.  The only reason  Keith visited the apartment the following morning to use their phone (so he could call his brother (Kevin) to come to the apartment complex to pick him up) was because on that evening he never left the apartment complex. When he left Chris and Jean's he felt ill, it was late, it was cold outside and he was drunk  - he was in no shape to try walk home, so he fell asleep in the upstairs hallway.   It should be noted that each time Keith visited the apartment, he never met Lori.  He did not know Lori at all.  Prior to the 28 December 1985, Keith had only met Chris and Jean briefly on these 2 occasions.

When questioned by Police about the crime and their whereabouts, Rick Bethe (Lori's boyfriend) told them everything he could remember, but denied any part of committing the crime.  When Police interviewed Kevin, he denied even being at the apartment on the evening of 28 December.  He also denied getting into a fight with Linda Rush.  Upon further questioning, Police told Kevin Kolley that they knew he was not telling them the truth.  At this point in time, Kevin admitted to being at the apartment, but still denied hitting Linda and punching his car window. 

He also denied going back to the apartment after he left with Rick at 8pm.  Kevin denied committing this crime.  During the questioning of Rick Bethe and Kevin Kolley, the Police found out that a week before the murder, a party was thrown by one of Lori's roommates (it should be noted that Keith was not at this party).  There was drinking and pot smoking going on.  Lori was in her bedroom with a couple of other people. Lori had an early morning ahead of her, since she had to go to work.  She got one of the people to go and tell the others at the party they had to leave.  When a few guys at the party were told they had to leave, they pulled out knives on people, and said they would leave when they were ready. Eventually they all left, without any further incident.  These people were never questioned by the Police.  Their names have never been found, hence their whereabouts on the evening of 28 December 1985 remain unknown

Police Investigations

Between the time of 11.30-11.45pm on 28 December, a lady who lived close by to Lori's apartment had heard a scream.  Around the same time, a little boy who was staying at his Grandmother's, also heard a scream.  At this time there is no way that Keith could have committed this crime, cleaned up, changed his clothes and rode his pushbike down to Bennigan's in this time scale, since Keith ordered his sandwich at the restaurant section of Bennigan's at 12.25am.

It is known that Lori was still alive at 9pm on 28 December 1985; she was found dead at 2.45am on 29 December 1985.  The time of the death of Lori Bullock was set by the Coroner at between 10.30pm (28 December) and 2.45am (29 December).  It should be noted that the only reason the time of 10.30pm is stated as a possible time of Lori's death, is due to the fact that Keith was their suspect!   In addition, the Police could not place Keith at the apartment building until he was talking to the Clark's and people attending their party.    

There are no medical findings to substantiate the death of Lori to be timed at 10.30pm.   It could be that Lori was murdered before Keith visited the apartment complex.  The screams that were heard by the lady and the little boy, is the time (around 11.30pm) that Kevin and Mark Gilmore were at the building to buy some joints.  Supposedly, Kevin went in alone, and allegedly only upstairs!?  Kevin was apparently only in the building for 5 minutes, and Mark waited outside in a parked car in front of the apartment building.  He said he never saw or heard anybody in the area. Mark Gilmore also said that Kevin was wearing faded blue jeans, white t-shirt and tennis shoes; not what Kevin was wearing when he left Keith at the bar earlier that evening!

Keith has witnesses to his whereabouts for almost every minute of the evening of 28 December and the early hours of 29 December.  Witnesses included bar-tenders who saw him throughout the evening.  It is more than unfortunate that there is only a one half hour period where no witness has come forward to positively verify Keith's location.

The half hour in question is the time Keith spent in the crowded bar area of Bennigan's, before going to the tabled section to order a sandwich.  The waiter, Mr Rodney Crice who served Keith his sandwich did not only remember Keith, but also had an order/receipt (dated 29 December, time 12.25am) to confirm these facts.  Whilst Keith was at Bennigan's on the evening 28 December, during the first half hour or so, he remained in a very crowded bar area, exchanging the occasional 'hello' and/or smile whilst enjoying a couple of beers and watching some people dancing.

When the Police went to Bennigan's to check out Keith's statement, they made no attempt  to question anyone inside Bennigan's except for the black waiter whom had served Keith's hamburger at 12.25am.  This waiter, Mr Rodney Crice could not confirm from what direction Keith had entered the tabled section which he was waiting on, nor could he verify in which direction Keith left. If the Police had extended their questioning to other members of staff (staff who served Keith at the bar that evening, before he entered into the tabled section of the pub) and the public, it is quite likely that someone would have come forward to positively place Keith.  

The Police also failed to look for and locate the guy in the pub who was playing music in Bennigan's that evening, he would have probably been able to remember seeing Keith, since Keith did request him to play a couple of records.  It should also be remembered that the Police were not able to prove that Keith was not in the bar section of the pub before entering its tabled section to order some food. 

In Police investigations, they were unable to place Keith anywhere during 28/29 December that Keith hadn't told them he had been.  It should be noted that neither the Police, nor Keith's attorneys have investigated further to locate anyone who could positively place Keith at Bennigan's during the initial half hour period he was in the Bar.  In addition, to this day, the State has never presented factual proof disclaiming any of Keith's statements.

In addition, the only way that the Police were able to locate the driver of the International Truck (Kirk Fifer) was not due to them searching or questioning anyone in the Bar at Bennigan's.  The Police were only able to trace Kirk Fifer  because Keith told them, during questioning that between Bennigan's  and The Silver Dollar, they were pulled over by the Police.  This clearly shows that Keith was verifying to the Police his whereabouts truthfully and accurately during 28/29 December.

On the evening of 28 December and the early hours of 29 December, Keith was dressed very smartly and cleanly in a flannel shirt, with dark brown cord Levi pants.  No marks of blood were found on him or his clothing.  If Keith had committed this crime, it would be inevitable and obvious that a considerable amount of blood would be found on his clothing as a result of the horrific stabbings; since  there was blood all over the victim and the scene of the crime.

When Police visited where Keith lived, Keith was not in - but his brother Kevin was.  So the Police took Kevin down to the Police Department to question him.  Kevin told Police that Keith had told him that on 28 December he had got into a fight with 3 bikers and killed one of them.  Keith had given him a pair of black cord Levi pants and told him to burn them, since they had blood on them.  Keith did get into a fight with one biker of the three, at a bar on 28 December, the biker had hit Keith, who in turn hit him back - and that was the end of the incident!  Nobody had been hurt, never mind killed. It should be noted that this incident did not result in the necessity to call for either the Police or Ambulance services.  On the evening of 28 December, Keith was not wearing black cord Levi pants.  Indeed, the only person to be wearing black cord Levi pants was Kevin.

The reason the black pants are involved in the case is because of what Kevin had said to the Police.   Blood was found on the black cord pants, and this was consistent to the blood type of the murder victim, note the word consistent and not positive! The Police could not confirm if the blood was that of the victim, or of someone with the same blood group.  It should be noted that Keith's and Lori Bullocks blood type are the same (type A). 

Kevin worked in a Bob Evans Restaurant, which had a strict dress code for its staff when working evenings; namely staff were required to wear black pants, black dress shoes and a white shirt.  Kevin's pants were dirty, so he asked Keith if he could wear his black cord pants.  Keith agreed, since he wasn't wanting to wear them. Nobody saw Keith in different clothing that evening during the times and places he was seen throughout 28/29 December; namely he was dressed smartly in a flannel shirt with dark brown cord Levi pants. 

At this point in time, Keith is not certain as to whether blood was found on the black Levi cord pants, as Police have claimed.  Remember, it was Kevin who had been wearing these during 28 December.  It should also be remembered that when Kevin turned up at Mark Gilmore's house at 10-10.30pm after leaving Keith at the bar, Mark Gilmore stated that Kevin was wearing faded blue jeans, white t-shirt and tennis shoes and not what Kevin was wearing when he left Keith at the bar. Somewhere, for some reason, Kevin had changed his clothing!

The only persons claiming that Keith was wearing the black cord pants was the State, Kevin and Julie.  Keith was not wearing black cord pants or grey shirt that evening.  Kevin and Julie were not able to substantiate their claim to this, nor provide factual proof; the State simply relied on their claim   In any event, the only person to be wearing those black cord pants on the evening of 28 December was Kevin Canaan.

When Police visited Jerry's Restaurant where Keith had visited at 3.30am on 29 December (Keith had eaten breakfast here before going home).  The Police spoke to 2 waitresses who had served Keith.  The first waitress, Charlotte Stoner was shown a photograph of Keith and told he was a suspect of the crime that had happened.  She said she thought that she had seen 3 dime sized spots of blood on Keith's shirt. 

It should be noted that she had also served Keith at the restaurant a few days prior to the murder (27 December to be precise), when Keith was wearing his grey shirt,  did have a cut finger when he came in then, and did have blood on him from his bleeding finger.  Keith had wrecked his bike when drunk.  When asked what shirt Keith was wearing on the night of the murder, she replied that it was a grey one. 

This statement was proven false  (it was obviously a mistake by the waitress, getting her nights mixed up; as previously stated Keith wore the grey shirt on the evening of 27 December, not the night of the murder), since the shirt was recovered by Police and the FBI Crime Laboratory tested to see if any blood had ever been on the shirt.  Negative results!  The second waitress, Kathy Vickers, actually stated at Keith's trial that whilst she did not recall the specific colour of Keith's shirt he was wearing on the morning of the 29 December, she did not see any blood on the shirt.

There were so many people with access to the apartment building on the evening of 28 December, besides the people who were at the Clark's upstairs party, the fact that Jennifer Griffith's sold drugs, there is no telling how many people entered the building that evening.  Keith's friends (Jennifer and Michelle) returned to their apartment at 11pm on that same evening.

The Trial

After Keith was charged with the murder of Lori Bullock, he was appointed representation of Evansville Public Defender, Barry Standley.  Another Public Defender was also placed as Co-Defender for the defense, but for reasons not known to Keith, this Co-Defender withdrew from his case.  Mr Standley then got another person to come on the case as Co-Defender, Mrs Beverly Harris (now Judge in Evansville). Prior to trial, many motions were filed for defense, discover motions etc. 

Mr Standley also filed a motion for monies to be afforded by the court to employ an investigator for the defense.  The Judge stated that he would only allow a sum of $2000 to be given.  Mr Standley then hired a good friend of his, which charged $150 per hour! It is quite clear looking at these figures, there was little provision made for any investigating.  More so, this investigator did not attempt to obtain any statements, check Keith's whereabouts, indeed Keith does not know of anyone in this case that was questioned by this investigator, except for the State's own 2 witnesses. 

The investigator did not even testify at trial!  Whilst Keith had no defense investigation, the Police's own investigations of Keith's whereabouts during 28/29 December were clearly established as true.  Keith does not know if any investigation was done on his behalf.  There were only 3 witnesses put on the stand during the defense side of the trial, and these witnesses did not even get to talk to this investigator!

Due to all the media coverage in town, there was a change of venue granted by the court to the defense because the Judge determined that too many prospective jurors from the town of Evansville would have heard too much of the media coverage etc.  The Judge decided that the trial would still be held in Evansville where the crime was committed, but jury selection would come from a town outside of the local news and media coverage viewing area.  But once the jury was selected, they were sequestered in an Evansville hotel until the case was decided!  Because the first trial and jurors selected 65 miles away had ended in a mis-trial (2 days into the trial a Police Officer called to stand for testimony to be given over the events of the investigation let testimony come out that Keith had been in prison before - and a jury is not permitted to become aware of any past criminal record unless or until the defendant takes the witness stand in their own defense. At the time it was not known if Keith would be testifying or not, there was a mis-trial granted).  So 30 days later, the jury for the second trial was selected from Gibson County only 20 miles away from Evansville, and since this county was well within the news media area, the majority of the jurors were aware of the details of the case even before the trial started.  Keith did want to testify in his case, but ws advised not to by his defense counsel. Keith's criminal record is not a one which contains any sort of violence, he wanted to take the witness stand to let some real facts be known about some of the statements given, and to let this jury know that just because he had a record and some problems in his life, that did not make him an evil person or a blood thirsty murderer, and he wanted the jury to know that he was not someone who was trying to hide his record from them.  Keith's defence counsel told him that he had a 50/50 chance and if he took the stand, he would lose the case; and would probably go to the electric chair.  Keith was scared, he is no lawyer - so he placed his trust and life in that of his defense counsel.  Keith had discussions with Mr Standley and Mrs Harris prior to the trial, explaining the reasons for leaving Julie, Kevin and the State, but very few of these important factors were mentioned at trial - facts about the questioning of Kevin or witnesses in the case.

Since Keith was not testifying, the State were trying to place Keith in the building on the 28 December, when the true fact was that Keith had told the Police he had visited the building, and why.

The State made it look like Keith was the person who committed the crime; they brought in all of the people present at the party at the Clark's apartment on the evening of 28 December.  Some of the people made statements to the effect they thought they heard a knocking sound, which may have come from the downstairs level.  These testimonies were used by the State to seemly place Keith going to the downstairs level of the apartment building when the people at the Clark's party had closed the door on him.

As the State, at trial were desperately trying to place Keith in the downstairs level of the apartment building after the people at the party closed the door, the State tried to insinuate the knocking on the door, was Keith knocking on Lori's downstairs apartment door trying to sell his bike.   The State's claim is simply not true.   Dana stated she saw Keith walk back to Jennifer's apartment knock on the door, there was no reply; then saw Keith take a few steps down the stairs towards the front door of the apartment building.  The State asked Dana, after seeing Keith knock at Jennifer's door, did she hear anything else in the building?  She replied 'no'.  But she did say that 5 minutes later she did hear footsteps coming back up the stairs towards the upstairs level again.  So, after Keith left the building on his bike, someone did enter the building!

The State also claimed that this victim's door must have popped open and Keith walked in and ransacked the victim's apartment.  During this event he killed the victim when she surprised him in the middle of this burglary and said that since the victim was nude when found murdered, and that since the rape tests were negative results, that must of meant that this victim was asleep in her room, because her bedroom door had been broken down during this crime. 

However since the victim was not known to sleep in the nude, or surely would not answer a knocking on the door nude, then she was either asleep when this bedroom door was broken into, or possibly in the shower and came out and surprised the person somehow.  There was no forced entry established to the front door of the victim's apartment, or any forced entry on any windows, so this fact, no breaking element of the charge of the crime of burglary was never shown, or any slight forced entry for that matter.  A breaking of an inside bedroom door does not meet the elements of the crime of
a burglary.

The only time in this whole case that Keith is not able to be placed by an eye witness was from the point of leaving the upstairs level of the apartment building (as  Dana Dunn testified) to the time where he obtained some food from Bennigan's at 12.25am on 29 December; there is a timed food receipt to prove this.    This is the part of the evening whereby the State is claiming Keith was in the lower level of the apartment building, committing the crime. 

It should also be noted that neither the Police nor Keith's attorneys questioned anyone from Bennigan's Main Bar section where Keith had been.  Hence, Keith was not even afforded the proper opportunity to have his whereabouts verified  during this period; not because he wasn't able to, but because he was prevented from obtaining the verification he needed by not only the Police also his own attorneys!  Nobody would even look at, or attempt to question anyone that was in the main Bar Section of Bennigan's, where Keith was during the time brought into question in this case.

Although Keith is not certain, he does know it was no earlier than 11pm; Keith is not sure as to the exact time he arrived and that he stayed in the upstairs level; knocking on Jennifer's door and talking at the Clark's apartment for 10-15 minutes at the most.  The Clark's were questioned by a Police Officer, about 2 hours after Lori was discovered murdered at approximately 2.45am.  They gave statements that Keith was at their door at 11.30pm on that evening, and they said they were sure of the time.  When the Police questioned them the following day, they changed the time to 10.30-10.45pm on 28 December; and once again they stated they were sure of this time.  It is clear that there was no time established.  But the State adopted their changed time statement of 10.30-10.45pm for their case against Keith.

There were 2 cigarette butts found on the dresser of Lori's bedroom.  The Police never determined what kind of cigarettes they were, but saliva tests performed on the cigarette filters showed the smoker of the cigarette to be classified as 'a secretor' (people are either 'secretors' or 'non-secretors'). In later tests, Keith was determined to be 'a secretor'.

The cigarette butts were not really strong evidence linking anyone to the crime, only suggestive since Keith was a smoker and also classified a 'secretor'.  So the State used this as circumstantial evidence in their case against Keith since he was their suspect.  The important thing to note is that anyone could have smoked those cigarettes, even Lori's 2 room-mates who smoked, because they were both also determined to be 'secretors'.  After all, a good percentage of the world's population of smokers are classified 'secretors'.

During the investigation of this crime, a rape test was performed on Lori, and it was determined that no rape had occurred during the commission of the crime.  In addition, fibre samples and fingerprints were taken from the victim's body together with items found both inside and outside the apartment.

Kirk Fifer, who gave Keith along with his bike a lift, said at questioning by Police that he had seen Keith with at least $100. The State used this against Keith because Kevin's statement said that earlier that evening (before the time of the murder) Keith didn't have enough money for another pitcher of beer!  But, Keith had just got paid from his place of work as a welder only 2 days prior, and was paid over $200.  Keith had deliberately only shown Kevin a few dollar bills, in order to discourage his brother from drinking further with him, as Keith did not want to pay the consequences of being blamed once again by Julie, for keeping Kevin out drinking all night.  So the reason Keith had such money is explainable.  However, this fact was never brought to light at trial.  Once again, ineffective counsel at trial.  The Police traced Kirk Fifer and took the truck to the Police Laboratories for searching, looking for any evidence ie. blood stains, fibres, hairs, etc.  Negative results, nothing was found.  If Keith had worn anything from such a brutal murder scene that had happened, in this case, and had been in the truck at this point, then some crucial evidence would most certainly have been found in the truck, but it wasn't.  This was not even mentioned at trial, ineffective counsel at trial.

The blown-up photocopies appended in Part Two are actual copies taken from Police polaroid crime scene photographs, in the record of this case, and they clearly illustrate the real facts!  After years of sitting on America's death row, wrongfully convicted for this crime, Keith was able to look closely and inspect these Police polaroid crime scene photographs for the first time on his own.  He is trying to do his own investigations, because nobody else ever, supposedly representing him, has taken the time to even look at, or even  inspect them, and he was able to get these actual Police photos blown
up and photocopied.

The photographs show the items left laying on the ground outside the building, where the victim's apartment was located.  These items were said to have been removed from the victim's apartment, and just left 'as found' and as photographed.  The important issue is the Police Officer's own testimony. This Police testimony also establishes that these items were 'as found and photographed' by Officers Ford and Pointer themselves.  Police Officer Ford produced a latent fingerprint of Keith Canaan. He claimed to have lifted the print from the Red Cross Spaghetti Box (hereinafter called 'the box').   He does not claim it was lifted by him at the scene of the crime.  Testimony shows these Officers placed the evidence into a Police crime van at the scene.  The evidence remained in the van for at least 12 hours before Officers Ford and Pointer then transferred the items to Police HQ.  Officer Ford took responsibility  for the evidence and placed  these items in an evidence holding room. 'Sometime later' he took them to the Police Laboratory. He took these alone and totally without any witnesses to verify his claims. He claimed to have found a dry spot on the box; and he was able to obtain a latent fingerprint of Keith Brian Canaan.

After claiming he had obtained the latent finger-print, he stated that he had to destroy the box because it was so badly damaged it could not be preserved for the trial.  He took no photographs to verify its claimed condition. Officer Ford claimed he knew he would have to destroy this box when he saw it at this crime scene.  At trial, when Officer Ford was asked if the latent fingerprint of Keith came from the box was based on just his word, Officer Ford replied 'Yes'.  Remember, Officer  Ford arrived at the scene and viewed all items before the photos were taken. Officer Pointer gave testimony that this box was so saturated and so badly damaged by this thawing meat and blood juices claim, that in his own attempts at the scene, he could not process this item (the box).  He said that he just turned all the items officially over to Ford as earlier outlined.  Remember Officer Pointer arrived at the crime scene at around 5.30am, and before the photos were taken also.  The victim's body was discovered at 2.45am, Officer Ford viewed the entire crime scene before 4.30am; according to testimony and the time indicated on the Police video.

From the entire 160 items of evidence only one was produced by the Police that they claim links Keith with the crime,  this was the latent fingerprint produced by Officer Stanley Ford himself.  This is very important; because the destruction of the box by Officer Ford was also destruction of key evidence.  Officer Ford's claims  for the reasons that he destroyed the box would indicate a gross act of perjury.  All crime scene evidence, found both inside and outside the apartment was either latent tested by the Police or sent to the Washington DC FBI Crime Laboratory for latest print testing. There were a total number of 98 latent prints found in this case.  The only latent of Keith was produced by Officer Ford's claimed latent print taken from the box before he deliberately destroyed the key evidence!

It is important to remember that Officer Ford was one of the first crime scene Officers to arrive at the scene after Lori was discovered murdered at approximately 2.45am on 29 December.  Officer  Ford arrived approximately 4am; he viewed all the crime scene before 4.30am; including all of the items (and the box) found laying outside on the ground.  More importantly, the photographs were taken almost 2 hours after Officer Ford had claimed that when he first viewed the box, it was so saturated and damaged due to thawing meat juices; that he knew at that time it had to be destroyed.

Clear perjury is demonstrated over Officer Ford's claims to destroying the evidence in the first place.  The two photocopies in Part Two of this Case Study are copies of the Police's crime scene polaroid photographs, also the only two photos in this case of the said Red Cross Spaghetti box.  The photos clearly show no damage whatsoever to this item, as claimed.  The Police have deliberately destroyed the only item said to have held the only print of Keith found at this crime scene.  [I realise these photos may have lost some of their clarity by being scanned etc., so if you require a more clear copy via snail-mail, please do not hesitate to contact me.

As Keith has never received proper help, these facts were not presented. Officer Ford gave testimony at trial for his  reasons he intentionally destroyed and could not preserve for trial/any independent testing or anyone's viewing. When he first saw the box at the crime scene, it was lying among some meat items, which had been removed from the victim's kitchen, along with many other items from the household.  The meat items were thawing and blood juices were all over them.  The box had become so damaged and saturated at this early stage of his viewing that the Officer knew it had to be destroyed.  Instead, it was put into a big green trash bag also found at the scene, along with some of the other items that sustained this damage, and put them into the police van, to be later taken to HQ.   In this instance there are no official time loggings (which is supposed to be Police procedure for evidence handling) for showing the movement of evidence.  In addition, there is no official log sheet that would establish his latent fingerprint testing time claims! By destroying the box, the Police ensured that nobody could examine it; neither experts nor Keith's defence.  This is at the very least a legal right, especially when analysing key pieces of evidence and even more so in a murder case where the death sentence is to be sought. 

At the time of writing, Keith has been unable to place these photographs into his appeals, neither has he been able to get his proof (evidence) set against these Police Officers.  This is because in all of these years, Keith's attorneys have failed to raise these issues, for that matter they have even failed to get the facts investigated. The latent fingerprint obtained by Officer Ford raises  the question where did he really get it from?  A lot of things were taken from Keith's bedroom, things known to belong to Keith and touched by him, even down to the cups of coffee given to Keith by officers during questioning ..  who knows?!  Of all the fingerprints found in this case - some matched Lori's roommates, some matched  people who visited the apartment during the course of at least a day prior to the murder - but none were found to match Keith, it was shown and proven!  Even the fingerprints on the murder weapon were never linked to anyone known - they are not Keith's, so whose are they?  All 160 items of evidence were sent to the FBI for further testing (with the exception for the latent fingerprint; since the box had been deliberately destroyed by the Police, then only the latent fingerprint itself was able to be submitted).

These photos were not looked into until Keith himself asked to see them years later. Now he is having a hard time to even get a court of appeals, or its judges to acknowledge them.  His appeals are so far along and his ineffective representation have not tried  to get them addressed in his appeals.  Keith has sent these blown-up photos himself along with a personal Affidavit trying to present their showing and testimony by Ford and Pointer, but the courts have simply stamped the documents as 'received' by the Clerk of the Court. The received stamp indicates the Judges will probably not even see these, because it was not Keith's attorney's who sent them, and they would not do it - WHY?  The courts have said when issues on latent fingerprints were raised on Keith's direct appeal, (filed by Keith's trial public defenders) basically the officers said the box was so damaged that it could not be saved, and had to be destroyed!   The appeal was denied!  None of the judges ever reviewing this case, have ever seemingly even bothered to personally view these photographs, or even closely examined Officers Pointer and Ford's testimonies to their claims of the condition of the Box 'as claimed found' for verification, or investigate its intentional destruction  The photos clearly show the intentional destruction of the box was in bad faith. The perjured testimony given by Ford and Pointer over its condition, should be a clear indication that something is not correct about any claims pertaining to the box.  Please do look closely at the photos in this Case Study, and also keep in mind the fact this crime took place on 28/29 December and it was a very cold evening; the Police also verify this. These photos are listed as State Exhibits 164 and 168 respectively in the record of this case.

The Photos - A Close Up View  (See Part Two of Case Study)

These photos were taken sometime after (at least after Officer Pointer had arrived at this scene at 5.30am on 29 December 1985 (because it was established through testimony that Officer Pointer took these photographs). It should also be noted that the photographs clearly show the ground area as found.  It clearly shows no sign and/or existence of any thawing meat and blood juices as running all over these items including the box, as was claimed by Officer Ford whom stated as existed some 2 hours minimum at this scene prior to even these photos being taken.  The white bag item is a bag of store bought frozen style french fries.  The white box items laying partially under the bag of french fries, is said to be the Red Cross Spaghetti Box. The orange in the colour bag, and other similar orange items are carrots..  The small square object beside the box and the fries is a bag of zip lock sandwich baggies. The more distant photo shows the Red Cross Spaghetti box in the middle of the photo.  What is quite clearly seen here is the Red Cross Spaghetti box being sandwiched between a bag of frozen french fries and a bag of carrots! Remember Officers Ford and Pointer's testimony as to why the box had to be intentionally destroyed (thawing meat juices saturating the box). If you inspect the photos there are no signs of thawing meat and blood juices.  So which is the truth? The Police Officers and their word or the photographs showing the real facts!

At the death penalty phase, Keith's attorneys presented only 2 witnesses; namely people of the church.  Keith did not know them, nor did they know him.  All they did was to state their opinions about the use of the death penalty in the USA.  A couple of hours later, the jury came back with a recommendation for death to be the sentence.  Sentencing set for 30 days after; on 26 November 1986.  Keith was unjustly and wrongfully sentenced to death for a crime he did not commit.  Then a year later, the same ineffective trial attorneys were again appointed by the Judge to handle Keith's Direct Appeal to the Indiana Supreme Court.  In 1989, Keith received a denial decision.

New attorneys were appointed from Evansville (Michael Keating and Glenn Grampp).  They filed Keith's Post Conviction Appeal, and again, no investigation was ever done in this case.  They did nothing - just filed an ineffective represented appeal with bogus issues and no real facts of the case attacks and its issues.  Again, Keith was denied. Then, the main Indiana Public Defenders Office in Indianapolis, Indiana officially took Keith's case over, and they now placed mitigation issues only.  They are attacking the trial attorneys ineffectiveness.

Who is a jury going to believe at trial?  A Police Officer, or a Defendant without the proper representation to identify the real facts and perpetrator.  Keith Brian Canaan is on death row for a crime he simply did not commit! One jury member said to a reporter after the trial 'the State's case against Canaan fit together like one big piece of evidence, if any element had been missing, it would have been hard for the panel to reach a decision!  We just felt he could not be let go..'  Seems like the ineffective representation did not just fail Keith, but also the jurors as well!

The Recent FBI Crime Laboratory Report

A claim by Frederick Whitehurst, (an Agent who worked in the FBI Crime Laboratory in Washington DC) prompted an investigation which exposed many wrong doings, including some which had taken place in this Unit.  As a result of these investigations, a report was published earlier this year that highlighted these wrong doings that had taken place by Agents at the Laboratory.  

It should be noted that the allegations made by Frederick Whitehurst, of wrong doings within the Crime Laboratory began in 1986 (the same year as the evidence in this case was sent to the Laboratory for testing).  This included Agents slanting their evidence test results to favour the prosecutor's case versus the defendant's case evidence that had been sent to the Laboratory for testing and results to be given.

FBI Crime Laboratory's Findings in this Case

In 1986 Evansville Police sent all of the evidence for testing, and results to be given, to the FBI Washington DC Crime Laboratory.  There were 3 Agents from the FBI Laboratory that gave testing results and testimony at Keith's trial (Agents from the 'Fingerprints, Hair & Fibres and Serology Unit').

The FBI Crime Laboratory Report on  the blood samples taken from the black cord pants read 'consistent with victim'.  In fact there are also consistent with Keith's, as Keith's and Lori Bullocks blood type are the same (type A).

The findings on the saliva tests performed on the 2 cigarette filters showed the smoker of the cigarette to be classified as 'a secretor' (people are either 'secretors' or 'non-secretors'). In later tests, Keith was determined to be 'a secretor'.  The cigarette butts were not really strong evidence linking anyone to the crime, only suggestive since Keith was a smoker and also classified a 'secretor'.  So the State used this as circumstantial
evidence in their case against Keith since he was their only suspect.  The important thing to note is that anyone could have smoked those cigarettes, even Lori's 2 room-mates who smoked, because they were both also determined to be 'secretors'.

When the evidence was sent to the FBI for their testing and results to be reported, a letter was also included stating the fact to be known to any Agents.  Keith B. Canaan was their suspect, and only suspect !

Case Update

On 23 June 1997, Keith received a Denial of his appeal from the Indiana Supreme Court, on the Post Conviction Appeal level.  His re-hearing was also denied. Keith now begins his last appeals stage in  the Federal Courts.  Up to date, Keith has received nothing but denials on appeals, because none of the attorneys appointed have ever properly addressed, with any full dedication, the issues that clearly exist; nor have they undertaken an investigation towards the real facts in this miscarriage of justice.

For Keith, time is quickly running out!  He is now racing against time to find any/all the proper help that it will take to have justice given to Keith in this case.  In addition, Keith is currently organising a legal defense fund  to raise money to enable him to afford anything that is needed in his defense, against this miscarriage of justice.  For full details of depositing any money you wish to donate to Keith's legal defense fund, please do not hesitate to contact him.  Please note that money should not be mailed directly to Keith at the prison.

Keith B. Canaan   # 865840
X Row / W-215
Indiana State Prison
PO Box 41
Michigan City, Indiana
46361 - 0041

 
 


 

395 F.3d 376

Keith B. Canaan, Petitioner-Appellee,
v.
Daniel R. Mcbride, Warden, * Respondent-Appellant.

Docket number: 03-1384

Federal Circuits, 7th Cir.

March 11, 2005

Before BAUER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

In the early morning hours of December 29, 1985, a police officer arrived at Lori Bullock's apartment in Evansville, Indiana. The apartment had been ransacked and the officer found Bullock dead, with a butcher knife protruding from her throat and almost two dozen stab wounds. Keith B. Canaan was arrested two days later and charged with the crime. A jury convicted Canaan of murder, burglary, and attempted criminal deviate conduct. At the sentencing hearing that followed, Canaan's counsel presented no mitigating evidence. Faced only with two aggravating factors, the jury recommended the death penalty. The judge accepted that recommendation and sentenced Canaan accordingly.

After unsuccessfully seeking post-conviction relief, Canaan filed a petition for a writ of habeas corpus. The district court granted him relief on three grounds. The first, in which the court found Canaan's trial counsel ineffective for failing to advise him that he had the right to testify at the penalty phase of his trial, affected only his death sentence. The second and third grounds resulted in the vacation of his conviction for attempted criminal deviate conduct. The court found that the jury instruction for attempted criminal deviate conduct failed to require the State to prove beyond a reasonable doubt that Canaan had acted with specific intent with respect to this crime, that this omission violated his due process rights, and that his counsel was ineffective for failing to object to this jury instruction. We affirm the district court's judgment granting habeas corpus relief with respect to the death sentence, but we reverse with respect to the conviction for attempted criminal deviate conduct.

* The following account of the underlying facts comes from the opinions of the Indiana courts that considered Canaan's case.

One or two weeks before Bullock's death, Canaan had knocked on the door of Bullock's apartment and asked her roommates whether he could wait in their living room until their upstairs neighbors arrived. The roommates agreed, and Canaan eventually fell asleep on their couch. The next day, Canaan returned and one of Bullock's roommates permitted him to use their phone. The evening of Bullock's murder, Canaan knocked on the door of her upstairs neighbor, who later testified that he seemed nervous and "had a strange look." Canaan then went downstairs and was heard knocking on the door of a first-floor apartment. Bullock lived on the first floor.

Around midnight, Canaan was seen at a Bennigan's restaurant with substantially more money than he had possessed earlier in the day. Several hours later, at another restaurant, he asked a waitress how he could remove blood stains from his shirt. Canaan's brother testified that Canaan had told him that he killed a "biker" at a bar the night before, and Canaan's friend testified that the afternoon following the murder, Canaan had noticed some police nearby and said, "I've got to get out of here." Finally, Canaan's fingerprint was found on a box of spaghetti found in Bullock's apartment.

Canaan was charged with murder, burglary, and criminal deviate conduct, as well as being a habitual offender. The State sought the death sentence based on the charged aggravating circumstance of intentional killing during the crimes of burglary and criminal deviate conduct, Ind. Code 35-50-2-9(b)(1). The jury convicted Canaan on all three counts.

At the penalty phase, it found Canaan guilty of being a habitual offender, thereby making him eligible for an additional thirty-year sentence. See Ind. Code 35-50-2-8(h). Next, a death penalty hearing was held before the same jury. Canaan did not testify at this hearing, and his counsel presented no mitigating evidence. The jury recommended that Canaan be sentenced to death. On November 26, 1986, the court found that Canaan intentionally killed Bullock while committing burglary and attempted criminal deviate conduct. In the absence of any mitigating circumstances, it concluded that there was nothing to outweigh the two aggravating factors. On this basis, the court sentenced Canaan to death.

Canaan appealed his conviction to the Indiana Supreme Court, which affirmed. Canaan v. State, 541 N.E.2d 894 (Ind.1989) ("Canaan I"), cert. denied, 498 U.S. 882 , 111 S.Ct. 230, 112 L.Ed.2d 185 (1990). Canaan's trial lawyers also represented him on direct appeal. Canaan then filed a petition for post-conviction relief, which the Indiana post-conviction court denied. After unsuccessfully appealing to the Indiana Supreme Court, Canaan v. State, 683 N.E.2d 227 (Ind.1997) ("Canaan II"), cert. denied, 524 U.S. 906 , 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998), Canaan filed a petition for a writ of habeas corpus. The district court found no flaws in Canaan's convictions for murder and burglary, but it concluded that "Canaan's petition must be granted with respect to the death sentence and the conviction for attempted criminal deviate conduct."

The court found that Canaan was denied effective assistance of counsel at the death penalty phase when his lawyers failed to discuss with him whether he should testify. The court also concluded that the jury instruction on attempted criminal deviate conduct denied Canaan due process of law because it did not require the jury to find beyond a reasonable doubt the essential element of a specific or conscious intent to penetrate the sex organ of the victim with an object. Finally, the court found that Canaan received ineffective assistance of counsel based on his trial attorneys' failure to object to those jury instructions. On this basis, the court issued a writ of habeas corpus vacating Canaan's death sentence and his conviction for attempted criminal deviate conduct. The State has appealed.

II

* We consider first the order vacating Canaan's death sentence. The district court granted his petition in that respect based on its finding that Canaan received constitutionally ineffective assistance of counsel when his trial attorneys, Barry Standley and Beverly Harris, failed to consult with him about whether he should testify at the penalty phase of the trial. On appeal, the State argues that his claim that he was "denied the right to testify" was procedurally defaulted because Canaan did not fairly present it to the Indiana Supreme Court. See 28 U.S.C. 2254(b)(1); Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); Harris v. McAdory, 334 F.3d 665, 668 (7th Cir.2003).

The State's articulation of its argument makes plain the flaw in it: Canaan seeks habeas corpus relief not on the ground that he was "denied the right to testify," as the State suggests, but rather because he was denied effective assistance when his counsel failed to advise him of his right to testify. Because the distinction between these claims is significant, it is necessary to review the evolution of Canaan's ineffective assistance of counsel claim before the Indiana courts. Canaan's post-conviction petition alleged that he "was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States [because]... [c]ounsel for petitioner failed to call petitioner as a witness during the death penalty phase of the trial."

The Indiana post-conviction trial court rejected this argument, stating that "[t]he decision not to call Petitioner as a witness during the penalty phase of the trial is proper trial strategy." That court also found that "during the preparation for the trial, both Counsel Standley and Co-Counsel Harris discussed with petitioner his right to testify at both the guilt and penalty phases of the trial." Harris testified, however, that "when we talked about him testifying at the trial, we were also regarding that towards the penalty phase." There is no indication that Canaan knew that this was the lawyers' intention, nor that counsel ever advised him about the risks and benefits of testifying at the penalty phase after he lost at the guilt phase.

On appeal to the Indiana Supreme Court, Canaan argued that his counsel was ineffective not only for "decid[ing] not to call Canaan as a witness at the penalty phase of the trial," but also for "fail[ing] to consult with him regarding the decision." Canaan suggested that his sentence might have been different had he been permitted to testify, in that "he could have filled in major gaps in the jury's knowledge regarding him."

The Indiana Supreme Court never addressed Canaan's argument that counsel failed to consult with him about the desirability of testifying at the penalty phase, when virtually all of the strategic reasons for refraining from testifying had become moot. It instead addressed only the argument that "counsel was ineffective for not calling him as a witness at the penalty phase," and on that point it "affirm[ed] the post-conviction court's conclusion that Canaan ha[d] failed to demonstrate that the decision not to call Canaan as a witness during the penalty phase constituted ineffective assistance of counsel." Canaan II, 683 N.E.2d at 229-30.

In his habeas corpus petition, Canaan reiterated his ineffective assistance of counsel claim, asserting among other things that "[n]either of his lawyers even discussed with him whether he should testify during the death sentence hearing," even though "under the circumstances, he was the only source of mitigating information." On this basis, the district court found that Canaan was "entitled to relief from his death sentence."

Although Canaan argued that his counsel was ineffective for failing to advise him that he could testify in his filings to both the Indiana Supreme Court and the district court, the State makes no mention of this claim in its briefs before this court. Rather, it contends only that "a claim that Canaan was denied the right to testify was barred by procedural default." Likewise, before the district court, the State argued that "to the extent that Petitioner's claim is that he was denied his right to testify ? rather than his right to effective assistance of counsel ? that claim is barred by procedural default as it was not raised in the state courts."

Thus, despite three opportunities to assert procedural default ? before the Indiana Supreme Court, the district court, and this court ? the State has never done so. The State's silence is significant because by failing to object to Canaan's claim on procedural default grounds, the State has waived (or, more properly, forfeited) this argument. See Gregory-Bey v. Hanks, 332 F.3d 1036, 1043 (7th Cir.2003) ("As a procedural default is not jurisdictional, any argument that [a habeas petitioner] has defaulted his ... claim can be waived by the government."); Hernandez v. Cowan, 200 F.3d 995, 997 (7th Cir.2000) (finding "waiver of waiver, now a well-established doctrine," where the State failed to object to a habeas petitioner's failure to seek state supreme court review in his direct appeal and post-conviction proceedings); cf. Momient-El v. DeTella, 118 F.3d 535, 540 (7th Cir.1997) (refusing to find waiver of waiver by the State where it presented its procedural default argument for the first time on appeal to this court). As we are under no obligation to invent a procedural default argument never raised by the State, we move to the merits of Canaan's claim.

At the outset, we must address the standard under which we review Canaan's ineffective assistance of counsel claim. Both parties and the district court assume that the standard provided in 28 U.S.C. 2254(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs our analysis, but this position is not necessarily correct. Ordinarily, 2254(d) requires that we determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." "This standard only applies, however, to a `claim that was adjudicated on the merits in State court proceedings.'" Braun v. Powell, 227 F.3d 908, 916 (7th Cir.2000) (quoting 28 U.S.C. 2254(d)); see also Oswald v. Bertrand, 374 F.3d 475, 477 (7th Cir.2004); Walton v. Briley, 361 F.3d 431, 432 (7th Cir.2004) ("The Antiterrorism and Effective Death Penalty Act of 1996 does not apply in this case because the state courts did not adjudicate the claim on the merits."); Ouska v. Cahill-Masching, 246 F.3d 1036, 1044 (7th Cir.2001).

The record in this case gives no indication that the Indiana courts were aware that Canaan had presented to them a claim of ineffective assistance of counsel based on the failure to consult ground. Although he squarely presented this argument to the Indiana Supreme Court, its decision makes no mention of this issue, even to reject it on procedural grounds or to indicate that it found no need to discuss the remaining issues in the case.

When a state court is silent with respect to a habeas corpus petitioner's claim, that claim has not been "adjudicated on the merits" for purposes of 2254(d). See Hough v. Anderson, 272 F.3d 878, 904 n. 13 (7th Cir.2001) (reviewing the petitioner's claim de novo because "[t]he Supreme Court of Indiana did not address this argument specifically in its opinion"). As a practical matter, a federal court cannot apply the deferential standard provided by 2254(d) in the absence of any state court decision on the issue. See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001) ("AEDPA imposes a requirement of deference to state court decisions, but we can hardly defer to the state court on an issue that the state court did not address."); Hogan v. Gibson, 197 F.3d 1297, 1306 (10th Cir. 1999) (holding that because the state court "made no findings" as to the merits of the petitioner's claim, "it is axiomatic that there are no findings to which we can give deference" and thus 2254(d) does not apply). As we said in Braun,"[a]ccordingly, we shall not employ the standard of review set forth in AEDPA but, rather, must rely upon the general standard as set forth in 28 U.S.C. 2243," which requires that we "`dispose of the matter as law and justice require.'" 227 F.3d at 917 (quoting 2243). See also Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003); Norde v. Keane, 294 F.3d 401, 410 (2d Cir.2002); Hameen v. State of Del., 212 F.3d 226, 248 (3d Cir.2000); Mueller v. Angelone, 181 F.3d 557, 570 n. 9 (4th Cir.1999).

This understanding of 2254(d)'s scope is consistent with the Supreme Court's decision in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Applying 2254(d), the Court held that the state post-conviction court had relied on an erroneous factual assumption and unreasonably applied Strickland's performance prong in rejecting the habeas corpus petitioner's ineffective assistance of counsel claim. 539 U.S. at 534, 123 S.Ct. 2527. The Court then considered whether the petitioner had satisfied Strickland's prejudice requirement. Id. In doing so, the Court did not apply 2254(d), noting that "our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis." Id.

In light of Wiggins and the consistent decisions of this and other circuits, we conclude that our review of Canaan's ineffective assistance of counsel claim is governed not by 2254(d), but by 2243, such that we must "dispose of the matter as law and justice require." (We add, however, that our ultimate resolution of the case would not change even if we were asking whether the state court's silence amounted to an unreasonable application of the law or determination of the facts, for the reasons we discuss here.)

Under Strickland v. Washington, "[f]irst, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The State contends that Canaan cannot prevail on his ineffective assistance of counsel claim because he "was advised of his right to testify and accepted his counsels' advice." In support, the State cites the Indiana post-conviction court's finding that "during the preparation for the trial, both Counsel Standley and Co-Counsel Harris discussed with petitioner his right to testify at both the guilt and penalty phases of the trial."

Despite the deference to which the state courts are entitled, we conclude that this finding cannot stand. The quoted statement is flatly contradicted by Standley's and Harris's testimony during Canaan's post-conviction hearing acknowledging that they had not spoken with him regarding his testifying at the penalty phase. (The testimony Harris offered, to which we referred earlier, does not contradict this statement ? as we noted, she did not say that Canaan knew they meant to include the penalty phase, and she certainly did not say that they ever gave Canaan any advice about the penalty phase that took into account the critical facts of the jury's convictions and findings on habitual offender status.)

When asked if he had addressed testifying at the penalty phase with Canaan, Standley stated, "I would say I probably didn't. It is just not something that ever really crossed my mind that you ought to do." Harris likewise testified, "I don't think we asked him if he wanted to testify at the death phase." The only hint that Canaan's attorneys raised this issue is Canaan's own proposed finding of fact to the post-conviction court, which stated: "Petitioner was told by trial counsel that he should not testify at either part of the trial and that he would not be called as a witness." (Emphasis added.)

This statement, however, merely suggests that the earlier generic discussion occurred; it does not indicate that Canaan's counsel discussed this issue with him at the penalty phase, when the stakes were substantially different from those at the guilt phase. At oral argument, the State conceded that the Indiana post-conviction court made no finding that Canaan's counsel had consulted with him at the penalty phase regarding his testifying. Moreover, the testimony of Canaan's counsel shows that this conversation never occurred. The district court thus did not err in finding that "the evidence from Canaan's lawyers shows that they did not ever discuss with him whether he should testify at the critical penalty phase of the trial."

We turn, then, to the question whether Canaan's counsel's failure to advise him that he was entitled to testify at the penalty phase constituted deficient performance. Under Strickland, Canaan must prove that his trial counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052.

Our review of the adequacy of his counsel's performance must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689, 104 S.Ct. 2052 (internal quotation marks omitted). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct." Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. Instead, it has "emphasized that `[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052).

We follow the Court's lead in Strickland and Wiggins by looking first to the ABA Standards for Criminal Justice and the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052 ("Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice, are guides to determining what is reasonable." (internal citation omitted)); Wiggins, 539 U.S. at 522, 123 S.Ct. 2527. While these standards are not determinative, see Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052, they nonetheless represent "well-defined norms" on which the Court has routinely relied, see Wiggins, 539 U.S. at 524, 123 S.Ct. 2527.

These sources confirm that Canaan's counsel fell short of professional norms when they failed to consult with him regarding his testifying at the penalty phase. Under the heading "The Defense Case Concerning Penalty," the ABA Guidelines provide that "[c]ounsel should consider, and discuss with the client, the possible consequences of having the client testify or make a statement to the sentencing or reviewing body or individual." ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases Guideline 10.11 (2003) (emphasis added).

The ABA's Commentary to Guideline 10.11 reiterates this standard: "Counsel should also consider, in consultation with the client, the possibility of the client expressing remorse for the crime in testimony, in allocution, or in a post-trial statement." Id. Guideline 10.11 cmt. Likewise, in its section on Defense Function, the ABA Standards for Criminal Justice provide that "[d]efense counsel should alert the accused to the right of allocution" at sentencing. ABA Standards for Criminal Justice, Defense Function Standard 4-8.1(d) (3d ed. 1993).

Finally, the National Legal Aid and Defender Association's Performance Guidelines state that "[i]n preparing for sentencing, counsel should consider the need to ... inform the client of his or her right to speak at the sentencing proceeding." National Legal Aid and Defender Association Performance Guidelines for Criminal Defense Representation 8.3 (1995). In failing to advise Canaan of his right to testify at the penalty phase, Canaan's counsel also defaulted on their "duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution." Strickland, 466 U.S. at 688, 104 S.Ct. 2052; see also IND. RULES OF PROF'L CONDUCT R. 1.4(b) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."); Hall v. Washington, 106 F.3d 742, 749 (7th Cir.1997) (emphasizing that "[i]n the context of a capital sentencing hearing, it is particularly important that counsel not be allowed to shirk her responsibility").

Even apart from these general standards, the conduct of Canaan's counsel was deficient when viewed in light of the facts and circumstances of his case. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052 ("[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances."). In their testimony at the post-conviction hearing, Canaan's counsel did not suggest that their failure to advise him that he could testify at the penalty phase arose from any "sound trial strategy." See id. at 689, 104 S.Ct. 2052. Rather, attorney Standley testified that "[i]t is just not something that ever really crossed my mind that you ought to do." See Wiggins, 539 U.S. at 526, 123 S.Ct. 2527 (finding counsel's conduct unreasonable where it "resulted from inattention, not reasoned strategic judgment").

While attorney Harris explained that they decided not to call Canaan as a witness at the guilt phase because "his prior impeachable offenses ... were just terrible" and he had a cool demeanor, she did not suggest that either of these justifications were persuasive in the context of the penalty phase of Canaan's trial. Because Canaan's attorneys opted to conduct his habitual offender status determination before the sentencing phase, the jury already knew about his prior offenses. As we have already noted, his attorneys presented no mitigating evidence at the sentencing hearing, even though the court and the jury had before them two aggravating factors and attorney Standley was aware, in his own words, that Canaan "didn't have a very good upbringing."

Thus, as Canaan's counsel acknowledged in the post-conviction hearing, "by the time the jury decided the death penalty portion of his trial, the only background information they would have had would have been his prior record." In the absence of any other mitigating evidence, counsel should have informed Canaan of his right to testify on his own behalf.

Instead of receiving advice from counsel, Canaan received none at the critical moment. We note in this connection that such advice might go either way: a competent lawyer might advise a client like Canaan to testify, but under some circumstances she might equally advise a client not to testify. The point here is that the final choice must be the client's, after receiving whatever advice the lawyer chooses to offer. In Canaan's case, given the importance of his testimony as the only mitigating evidence available to the jury, and the professional norms emphasizing counsel's obligation to advise a defendant of his right to testify at the penalty phase, Canaan's lawyers were deficient in failing to consult with him about this issue.

Canaan can prevail on his Strickland claim, however, only if he can show that his counsel's deficient performance prejudiced him. To show prejudice in the capital sentencing context, a petitioner must establish "that a reasonable probability exists that, but for counsel's substandard performance, the sentencer `would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Hall, 106 F.3d at 749 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). A "reasonable probability" of a different result is one "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. "Even if the odds that the defendant would have been acquitted had he received effective representation appear to be less than fifty percent, prejudice has been established so long as the chances of acquittal are better than negligible." United States ex rel. Hampton v. Leibach, 347 F.3d 219, 246 (7th Cir.2003).

As we have discussed, Canaan's testimony at the penalty phase would have been the only mitigating evidence the jury heard. The Indiana death penalty statute requires the jury to weigh aggravating and mitigating circumstances before recommending a sentence, Ind. Code 35-50-2-9(1), and so the effect of presenting no mitigating evidence at the penalty phase was that the jury considered only the two aggravating circumstances. With nothing to put on the mitigating side of the scale, the jury was almost certain to choose a death sentence.

The testimony Canaan was prepared to offer, which he presented at his post-conviction hearing, may have persuaded the jury to be lenient. Canaan described a deeply troubled history of the kind the Supreme Court has found relevant at the penalty phase. See Wiggins, 539 U.S. at 535, 123 S.Ct. 2527. Specifically, Canaan would have testified to his lifelong struggle with drugs and alcohol and to the physical and emotional abuse he suffered as a child. Canaan's father often beat him until his mother or brother intervened. After Canaan's father caught him sniffing paint, he spray-painted the entire left side of Canaan's body.

On several occasions, Canaan's mother forced him and his siblings into the family's car and drove recklessly towards their house, threatening to kill everyone because "her nerves had about had it." When Canaan was later placed in a juvenile facility, he was diagnosed as "dangerous to self and others," and had to go through "reality therapy." Canaan's testimony also chronicled a lengthy history of substance abuse. At age sixteen, Canaan was charged with auto theft, and the court ordered him to see a psychologist to address his chemical dependency. His parents refused to pay the $50 per visit charge, however, so he never received treatment.

Canaan further testified that between the ages 16 and 27, when he was arrested for Bullock's murder, there were no significant periods of time when he did not regularly use alcohol and drugs, including PCP, marijuana, acid, Quaaludes, and cocaine. During Canaan's 42-month incarceration at Westville Correctional Institute, from which he was released shortly before he was arrested for killing Bullock, he used cocaine twice a week, as well as marijuana and PCP (an unfortunate comment on the state's correctional institutions, as well as on Canaan). He was addicted to cocaine when released and used alcohol and cocaine until his arrest.

This account makes clear that Canaan "has the kind of troubled history we have declared relevant to assessing a defendant's moral culpability." Wiggins, 539 U.S. at 535, 123 S.Ct. 2527 (citing Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ("[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background ... may be less culpable than defendants who have no such excuse." (internal quotation marks omitted))); Eddings v. Okla., 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (noting that consideration of the offender's life history is a "part of the process of inflicting the penalty of death" (internal quotation marks omitted)); see also Emerson v. Gramley, 91 F.3d 898, 907 (7th Cir.1996) (finding prejudice where counsel failed to introduce evidence "of a life that one juror in twelve might find so bleak, so deprived, so harrowing, [and] so full of horrors" as to refuse to recommend death, particularly "[w]ith no evidence of mitigation before the jury despite irrefutable evidence of aggravating circumstances"). Where the state death penalty statute, as in Indiana, requires the sentencer to consider all mitigating factors relevant to imposition of the death penalty, we have emphasized that "defense counsel must make a significant effort ... to ably present the defendant's fate to the jury and to focus the attention of the jury on any mitigating factors." Hall, 106 F.3d at 749 (internal quotation marks omitted).

Canaan's counsel fell down in that responsibility. Had the jury been aware of this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence. On this basis, we affirm the district court's grant of habeas corpus relief to Canaan with respect to his ineffective assistance of counsel claim and hold that he is entitled to a new hearing on his sentence.

B

The district court also granted Canaan's petition for habeas corpus relief with respect to his conviction for attempted criminal deviate conduct. That conviction, it held, was based on a jury instruction that violated Canaan's due process rights, because the instruction relieved the State of its burden to prove beyond a reasonable doubt Canaan's specific intent to penetrate Bullock's sex organ with an object. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In addition, the court held that Canaan's counsel was ineffective in failing to object to this jury instruction.

On appeal, the State identifies several reasons for reversal: procedural default of the due process claim, an adequate and independent state ground based on the finding of the state post-conviction court of no fundamental error, and no error on the merits. We agree with the last of these points: reading the jury instructions as a whole, we conclude that they adequately established the elements of attempted criminal deviate conduct under Indiana law at the time of Canaan's trial and sentencing. Canaan therefore cannot prevail on the merits of his due process claim, and we need not reach the State's procedural default argument.

Before addressing the merits of Canaan's claim, we address once again the appropriate standard of review. As we have discussed, the deferential standard imposed by 28 U.S.C. 2254(d) applies only if Canaan's due process claim was "adjudicated on the merits." See, e.g., Walton, 361 F.3d at 432. Otherwise, we evaluate his claim under the pre-AEDPA standard of 28 U.S.C. 2243, which instructs that we "dispose of the matter as law and justice require." With respect to Canaan's due process claim, the correct standard is not obvious.

The Indiana Supreme Court's only discussion of Canaan's claim on post-conviction review consisted of its statement that, "[a]s the post-conviction court properly concluded, this issue was decided adversely to Canaan on direct appeal. It is not available for relitigation here." Canaan II, 683 N.E.2d at 236 (internal citation omitted). We have repeatedly held, in the context of deciding whether a petitioner has procedurally defaulted her claim, that where a post-conviction court has "based its disposition of [the petitioner's claim] on its conclusion that the merits of the claim ha[s] been resolved previously," it has conducted "a merit-based determination [that] is not a bar to further consideration in a federal habeas action." Page v. Frank, 343 F.3d 901, 907 (7th Cir.2003).

This language suggests that the Indiana Supreme Court's disposition of Canaan's claim on the ground that it was decided adversely to him on direct appeal should qualify as an "adjudication on the merits" and therefore trigger 2254(d)'s deferential standard of review. The difficulty with this conclusion is that both the Indiana Supreme Court and post-conviction court erred in finding that Canaan's due process claim had been decided adversely to Canaan on direct appeal.

In fact, Canaan presented this claim for the first time on post-conviction review and therefore neither court considered the merits of the claim on direct appeal. Therefore, as the Indiana Supreme Court only asserted that it had addressed the merits of Canaan's claim, but in fact it never did so, it is not clear that 2254(d) governs our analysis. We need not resolve this conundrum, however, as Canaan cannot prevail even under 2243' s more liberal standard of review.

In Winship, the Supreme Court famously stated: "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U.S. at 364, 90 S.Ct. 1068. In applying Winship to jury instructions, the Court has emphasized that "[b]efore a federal court may overturn a conviction resulting from a state trial in which th[e] instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). Thus, the question for us "is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, 94 S.Ct. 396. Indeed, it is a "well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Id. at 146-47, 94 S.Ct. 396.

In light of these standards, we must determine whether the jury instructions in Canaan's case, read as a whole, failed to instruct the jury in an element of the crime of attempted criminal deviate conduct, thereby relieving the State of its obligation under the Due Process Clause to prove beyond a reasonable doubt every element of the offense. See United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995); Jenkins v. Nelson, 157 F.3d 485, 492 (7th Cir.1998). The instruction in question reads as follows: A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.... To convict the defendant of the crime of Attempted Criminal Conduct an included offense of Criminal Deviate Conduct, as charged in Count III, the State must have proved each of the following elements: The defendant

1. knowingly/intentionally

2. engaged in conduct that constituted a substantial step toward commission of the crime of Criminal Deviate Sexual Conduct

3. which conduct was an attempt to penetrate the sex organ of Lori Bullock with an object, to-wit: a knife

4. the defendant used deadly force.

The jury instructions also defined the term "deviate sexual conduct" as "an act involving: (1) A sex organ of one person and the mouth or anus of another person; or (2) The penetration of the sex organ or anus of a person by an object."

Before deciding whether Canaan's jury instructions removed a necessary element of the crime of attempted criminal deviate conduct from the jury's consideration, we must first establish the elements of that crime under Indiana law. At issue is whether, at the time of Canaan's trial and sentencing in November 1986, the "specific intent" element of the general crime of attempt required proof that the defendant acted intentionally, that is, with a conscious objective, or whether proof that he acted knowingly would suffice. The Indiana Supreme Court discussed the elements of the crime of attempt in Zickefoose v. State, 270 Ind. 618, 388 N.E.2d 507 (1979), which interpreted Indiana's then-new general attempt statute, Ind. Code 35-41-5-1 (1978).

The court explained that "[a]lthough there are somewhat varying definitions of what conduct actually constitutes an attempt, there is fundamental agreement on the two necessary elements of the crime. First, the defendant must have been acting with a specific intent to commit the crime, and second, he must have engaged in an overt act which constitutes a substantial step toward the commission of the crime." Id. at 510; see also Scott v. State, 274 Ind. 687, 413 N.E.2d 902, 904 (1980) ("[A] specific intent is required to prove an attempt."). In light of Zickefoose, Canaan contends that the instruction for attempted criminal deviate conduct "fails to inform the jury that before Canaan could be convicted of such offense, they must find that he engaged in the prohibited conduct with the specific intent to commit the crime of criminal deviate conduct." He argues that the instruction wrongly permitted the jury to convict him "of the offense if he `knowingly' acted against the victim," rather than requiring that it find "that the conduct concurred with the conscientious objective (or specific intent) to accomplish such penetration." The State responds that Canaan is mistaken, because under Indiana law "[a]t the time of Canaan's crime, the required mens rea for an attempt crime could be either knowing or intentional."

The difficulty in evaluating these competing interpretations of Indiana law arises from the varied meanings attributed to the term "specific intent" by the Indiana courts. See Richeson v. State, 704 N.E.2d 1008, 1009 n. 1 (Ind.1998) ("Review of case law from this Court and the Court of Appeals indicates that the term `specific intent' has several conflicting definitions.").

In light of this ambiguity, it is most helpful to ask whether Indiana law at the time of Canaan's conviction required the State to prove that it was Canaan's conscious objective to penetrate the victim's sex organ or whether it allowed the State to prove that Canaan acted knowingly or with a conscious objective in penetrating the victim's sex organ. While Canaan relies on Zickefoose's statement that "the defendant must have been acting with a specific intent to commit the crime," 388 N.E.2d at 510, in arguing that the instructions were erroneous, he fails to recognize subsequent Indiana Supreme Court cases clarifying that the element of "specific intent" can encompass either intentional conduct ? that is, conduct resulting from a "conscious objective" ? or knowing conduct. In Scott, which was decided after Zickefoose but prior to Canaan's trial and sentencing, the Indiana Supreme Court reiterated that "a specific intent is required to prove an attempt," but went on to explain that "[t]he very elements of knowingness or intention which must be proved in order to establish murder satisfy the State's burden of proving the same elements in an attempt to murder." Scott, 413 N.E.2d at 904 (emphasis added).

The Indiana Supreme Court further clarified its position in Woodford v. State, 488 N.E.2d 1121 (Ind.1986), which also preceded Canaan's trial. In Woodford, the defendant asserted that, under Zickefoose, "'knowingly' is not sufficient culpability for an attempt crime, and a conviction for attempted rape can be sustained only if the State established that the defendant acted `intentionally.'" Id. at 1123. The court squarely rejected this argument, explaining that Zickefoose"did not involve distinguishing between the terms `knowingly' and `intentionally,' and the phrase `specific intent' was used only to generally denote the required culpability." Id.

In light of these cases, Canaan cannot state a due process claim based on failure of the jury instructions to require the State to prove that it was his conscious objective to penetrate Bullock's sex organ. Under Indiana law at the time of his trial, it was sufficient for the jury instructions to require that the State prove knowing action on his part. Because the instructions did so, we need not address the State's additional argument that the Indiana Supreme Court's subsequent decisions limited Zickefoose's specific intent rule to cases of attempted murder. See, e.g., Richeson, 704 N.E.2d at 1010. As the instruction for attempted criminal deviate conduct required that the State prove beyond a reasonable doubt that Canaan acted "knowingly/intentionally," Canaan's due process rights were not violated by this instruction. See Winship, 397 U.S. at 364, 90 S.Ct. 1068.

Canaan also argues that even if he cannot prevail on his first challenge to the instructions, his due process rights were still violated because the attempted criminal deviate conduct instruction applied the knowing/intentional conduct requirement to "an attempt to penetrate the sex organ of Lori Bullock with an object," not to the penetration itself. The instruction required the jury to find that Canaan "knowingly/intentionally engaged in conduct that constituted a substantial step toward commission of the crime of Criminal Deviate Sexual Conduct," where "conduct" was defined as "an attempt to penetrate the sex organ of Lori Bullock with an object, to-wit: a knife." Read together, these elements of the instruction required that the jury find that Canaan knowingly/intentionally engaged in an attempt to penetrate the sex organ of Lori Bullock. Canaan contends that the instruction therefore was erroneous, because "the mens rea language modifies only the conduct element of the crime and not the result (harm) element."

The instruction, he continues, fell short in two ways: first, it failed to inform the jury that the State had to prove that Canaan knowingly or intentionally sought to penetrate Bullock's sex organ; and second, it did not make clear that the State had to do more than prove that he knowingly or intentionally engaged the conduct that constituted a substantial step towards the penetration of her organ. See Zickefoose, 388 N.E.2d at 510 (stating that to prove attempt, the State must prove that "the defendant must have been acting with a specific intent to commit the crime" (emphasis added)).

In evaluating this claim, we heed the Supreme Court's "well-established proposition that a single instruction to a jury ... must be viewed in the context of the overall charge." Cupp, 414 U.S. at 146-47, 94 S.Ct. 396. While the trial court's articulation of the elements of attempted criminal deviate conduct in the jury instruction may not have been perfect, we must look at the instructions as a whole to determine whether Canaan has presented a valid due process claim. In this regard, the Indiana Supreme Court's decision in Clemons v. State, 424 N.E.2d 113 (Ind.1981), is instructive. The trial court in Clemons instructed the jury in attempted murder as follows:

To convict the defendant the State must have proved each of the following elements:

The defendant James Burnus Clemons,

1. did knowingly or intentionally,

2. shoot a hand gun at and hit the body of Bruce Burnett with the bullet

3. that the conduct was a substantial step toward the commission of the crime of Murder.

Id. at 118. The defendant objected that "this instruction is incomplete in that it does not set forth the element of specific intent to kill but only mentions the knowing or intentional shooting of the gun." Id. The Indiana Supreme Court found "no merit to this argument since the court further instructed the jury on the definition of the crime of murder ... and the necessary element of the specific intent to kill is correctly set out therein." Id. On this basis, the court held that the "instructions taken as a whole adequately covered the definition of attempted murder." Id. Under Clemons, even if the attempted criminal deviate conduct instruction in Canaan's case did not correctly set out the specific intent requirement, it is still possible that the instructions as a whole adequately conveyed the elements of attempted criminal deviate conduct. We find that this is the case here. The jury instruction for criminal deviate conduct explained that "[a] person who knowingly causes another person to perform or submit to deviate sexual conduct commits deviate sexual conduct." In addition, the criminal deviate conduct instruction provided:

To convict the defendant the State must have proved each of the following elements: The defendant

1. knowingly on or about DECEMBER 28, 1985 TO DECEMBER 29, 1985

2. caused another person, to-wit: LORI L. BULLOCK, to submit to deviate s [e]xual conduct when

3. the defendant used deadly force.

This instruction clarifies the intent element of the attempted criminal deviate conduct instruction, particularly in light of the latter instruction's explanation that "[a] person attempted to commit a crime when, acting with the culpability required for the commission of the crime, he engaged in conduct constituting a substantial step toward commission of the crime." (emphasis added). See Alexander v. State, 520 N.E.2d 99, 100 (Ind.1988); cf. Smith v. State, 459 N.E.2d 355, 357-58 (Ind.1984) (finding fundamental error where the attempted murder instruction required only that the defendant "knowingly[ ] [e]ngaged in conduct that constituted a substantial step toward the commission of Murder," but the jury was not instructed in the elements of murder). We acknowledge that in Canaan's case the jury instruction for attempted criminal deviate conduct was not ideal. That said, the jury instructions, when read as a whole, made clear the correct relation and thus communicated the requisite elements of attempted criminal deviate conduct under Indiana law. Canaan therefore cannot establish that the instructions "so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147, 94 S.Ct. 396.

In light of this conclusion, Canaan cannot show that his lawyers were ineffective in failing to object to the instructions. As we have found no constitutional error in the instructions themselves, the lawyers' performance with respect to them could not have fallen below the constitutional minimum.

III

Because Canaan's counsel was ineffective in failing to consult with him regarding his right to testify at the penalty phase of the trial, we AFFIRM the judgment of the district court issuing a writ of habeas corpus on this basis and vacating his death sentence. We REVERSE that part of the district court's judgment granting Canaan habeas corpus relief based on his claims relating to the attempted criminal deviate conduct conviction. The State of Indiana is free to conduct a new death penalty hearing, providing that the State files appropriate documents seeking such relief within 120 days of the mandate of this court.

*****

Notes:

* Daniel R. McBride is substituted as respondent for Cecil Davis following Canaan's transfer to the Maximum Control Facility at Westville, Indiana

 
 


 

Keith B. Canaan

 

 

 
 
 
 
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