Jeffrey Archer v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 25 2019, 8:59 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan J. Schueler Curtis T. Hill, Jr.
Ferguson Law Attorney General of Indiana
Bloomington, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey Archer, July 25, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-2681
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc Rothenberg,
Appellee-Respondent Judge
The Honorable Amy Barbar,
Magistrate
Trial Court Cause No.
49G02-1604-PC-16169
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 1 of 12
[1] Jeffrey Archer appeals the denial of his petition for post-conviction relief,
arguing that the post-conviction court erroneously determined that he did not
receive the ineffective assistance of appellate counsel. Finding no error, we
affirm.
Facts
[2] The underlying facts, as described by this Court in Archer’s direct appeal, are as
follows:
Archer is the paternal step-grandfather of L.B., born June 2,
2003. L.B. lives with her maternal grandparents, Michael and
Cindy Tollar, who have had full custody of L.B. since December
5, 2008. The Tollars allowed L.B. to visit with her paternal
grandmother, Patricia, who is married to Archer, every other
weekend from Friday night to Sunday after dinner. L.B. did not
have her own bed at Archer’s house, so she slept on an air
mattress in the living room or in the bed between Patricia and
Archer.
Sometime in early 2011, Cindy noticed L.B.’s demeanor would
be different after she returned from visits with the Archers. On
May 2, 2011, L.B. told her school’s student services advisor that
Archer had touched her multiple times on the bottom, vagina,
back, and chest. L.B. also reported Archer touched her inside
her underwear and once put his fingers in her genitalia. The
advisor contacted the Department of Child Services.
After detectives and service providers interviewed L.B., the State
charged Archer with one count of Class A felony child molesting
and two counts of Class C felony child molesting. On July 16,
2012, a jury found Archer guilty as charged. The trial court
entered a conviction of Class A felony child molesting and
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 2 of 12
merged the two counts of Class C felony child molesting. The
trial court sentenced Archer to twenty-five years for Class A
felony child molesting and two years for Class C felony child
molesting, to be served concurrently.
Archer v. State, 996 N.E.2d 341, 345-46 (Ind. Ct. App. 2013). In his direct
appeal, Archer argued, among other things, that the trial court admitted
impermissible vouching testimony and that he had received the ineffective
assistance of trial counsel. This Court affirmed the trial court. Id. at 354.
[3] On November 17, 2018, Archer filed an amended petition for post-conviction
relief, arguing that he had received the ineffective assistance of appellate
counsel for numerous reasons, including that appellate counsel failed to argue
prosecutorial misconduct and filed a deficient brief. Hearings on Archer’s
petition took place on March 23 and June 6, 2018. On October 16, 2018, the
post-conviction court denied Archer’s petition. Archer now appeals.
Discussion and Decision
I. Standard of Review
[4] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
“When appealing from the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. To prevail on appeal from the denial of post-
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 3 of 12
conviction relief, a petitioner must show that the evidence as a
whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case made findings of fact and
conclusions of law in accordance with Indiana Post-Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (quotation omitted).
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
[5] Archer’s sole argument on appeal is that the post-conviction court erroneously
determined that he did not receive the ineffective assistance of appellate
counsel. To establish ineffective assistance of appellate counsel, the petitioner
must show that (1) appellate counsel was deficient in his or her performance,
and (2) the deficiency resulted in prejudice. Id. at 269. Failure to satisfy either
prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639, 644 (Ind.
2008). To satisfy the second prong, the defendant must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different. Id.Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 4 of 12
II. Assistance of Appellate Counsel
A. Prosecutorial Misconduct
[6] Archer first alleges that he received the ineffective assistance of appellate
counsel because appellate counsel failed to raise the issue of prosecutorial
misconduct. He contends that prosecutorial misconduct occurred through
improper vouching and unsavory depictions of defense counsel.
[7] The law regarding prosecutorial misconduct is well established:
In reviewing a claim of prosecutorial misconduct properly raised
in the trial court, we determine (1) whether misconduct occurred,
and if so, (2) “whether the misconduct, under all of the
circumstances, placed the defendant in a position of grave peril to
which he or she would not have been subjected” otherwise.
Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo
v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the
duty to present a persuasive final argument and thus placing a
defendant in grave peril, by itself, is not misconduct. Mahla v.
State, 496 N.E.2d 568, 572 (Ind. 1986). “Whether a prosecutor’s
argument constitutes misconduct is measured by reference to
case law and the Rules of Professional Conduct. The gravity of
peril is measured by the probable persuasive effect of the
misconduct on the jury’s decision rather than the degree of
impropriety of the conduct.” Cooper, 854 N.E.2d at 835
(emphasis added) (citations omitted). To preserve a claim of
prosecutorial misconduct, the defendant must—at the time the
alleged misconduct occurs—request an admonishment to the
jury, and if further relief is desired, move for a mistrial. Id.; see
also Maldonado v. State, 265 Ind. 492, 498, 355 N.E.2d 843, 848
(1976).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 5 of 12
Our standard of review is different where a claim of prosecutorial
misconduct has been procedurally defaulted for failure to
properly raise the claim in the trial court, that is, waived for
failure to preserve the claim of error. Booher v. State, 773 N.E.2d
814, 817-18 (Ind. 2002). The defendant must establish not only
the grounds for prosecutorial misconduct but must also establish
that the prosecutorial misconduct constituted fundamental error.
Id. at 818. Fundamental error is an extremely narrow exception
to the waiver rule where the defendant faces the heavy burden of
showing that the alleged errors are so prejudicial to the
defendant’s rights as to “make a fair trial impossible.” Benson v.
State, 762 N.E.2d 748, 756 (Ind. 2002), quoted in Castillo, 974
N.E.2d at 468 and Cooper, 854 N.E.2d at 835. . . .
Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014) (footnote and emphases
omitted).
[8] Archer alleges that the prosecutor improperly vouched for L.B. during opening
argument when she made the following statements:
• “And [L.B.] will tell you what happened at night when she was sleeping
with the defendant.” Appellant’s App. Vol. II p. 137.
• L.B. told her school counselor “exactly what was happening in that
bedroom with the defendant the best way that a then eight-year old child
can communicate that.” Id. at 138.
• “[T]he evidence in this case is not going to be easy to listen to. . . . [B]ut
it happens and it happened to this kid. Id.
• “And I just beg of you that you listen to her and what she has to tell you.
She will tell you that the defendant is guilty of Counts I, II, and Count
III.” Id. at 138-39.
[9] Archer also alleges that the prosecutor improperly vouched for L.B. during
closing argument when she made certain statements, including the following:
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 6 of 12
• L.B. had “[n]o reason whatsoever to make this up.” Appellant’s App.
Vol. IV p. 182.
• “And to a kid who has had a grandfather’s hand touch her vagina, when
a defense attorney says, well, if I were to put my hand right here, could
you show me? [W]hat does that mean? You mean, you want me to take
your hand and touch my vagina? No. . . . It’s creepy by my [sic] one’s
standards. . . . But why would you do such a thing like that? Well, I’ll
tell you why because everything that she [says] in that deposition can be
bought [sic] out when she comes in here to testify. Classic trick. The
same way as when your [sic] asking a child questions as defense attorney,
you stand over hereby [sic] your client so she’s got to look at him. . . .
It’s a trick. Classic. And so how do people get away with stuff like this?
We read it in the news. How are those guys doing this to kids? Finally,
not getting caught because of this. This is [w]hat happens. This is not
the only court in this building. Other cases are going on, same thing.
This is [w]hat happens. That’s how they get away with it.” Id. at 222-24.
• “And I just cannot fathom that any of you would think it was reasonable
that that was some kind of performance from her. It wasn’t.” Id. at 228.
[10] Regarding the prosecutor’s statements made during opening argument, Archer
fails to present any argument as to how these statements constituted misconduct
or placed him in grave peril. But regarding the prosecutor’s statements made
during closing argument, we agree that the prosecutor’s suggestion that defense
counsel was playing a “classic trick” to help Archer be acquitted was
inappropriate. As our Supreme Court has stated regarding a different closing
argument by the same prosecutor,
Without question, the characterization of defense counsel’s line
of argumentation as “how guilty people walk” and a “trick,” is
inconsistent with the requirement that lawyers “demonstrate
respect for the legal system and for those who serve it, including
. . . other lawyers,” see Preamble [5], Ind. Professional Conduct
Rules.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 7 of 12
Ryan, 9 N.E.3d at 670. And as to the prosecutor’s statement about defense
counsel’s physical position during questioning and the prosecutor’s statement
about how people “get away with stuff like this,” appellant’s app. vol. iv p. 223,
we agree that those comments were also improper. This Court has addressed
similar comments in yet another closing argument by this same prosecutor,
finding that such comments were outside the realm of professionalism and were
not appropriate comments on the law and the facts of the case. See Brummett v.
State, 10 N.E.3d 78, 85 (Ind. Ct. App. 2014) (discussing prosecutor’s comments
that implied the defense counsel’s arguments helped guilty men go free and
statement that defense counsel employed tricks), aff'd on reh’g, 24 N.E.3d 965(Ind. Ct. App. 2014).
[11] Archer argues, essentially, that as in Ryan and Brummett, the same prosecutor in
this case committed reversible misconduct with the comments she made during
his jury trial and that, consequently, his appellate counsel had a clearly stronger
argument to raise—prosecutorial misconduct—than any of the litany of
arguments he actually raised.1 Cf. Bieghler v. State, 690 N.E.2d 188, 193-94 (Ind.
1997) (stating that a claim of ineffective assistance of appellate counsel may be
1
In his direct appeal, Archer alleged that the trial court allowed three witnesses to vouch for L.B.’s credibility
as a witness. This Court found no error on this basis. Archer rehashes this argument in his appeal from the
post-conviction court’s judgment, but because this Court has already addressed it, we decline to do so again.
See Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994) (noting that issues already adjudicated in the appellate
process are unavailable to a petitioner for post-conviction relief).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 8 of 12
shown when “significant and obvious” issues that were “clearly stronger than
those presented” existed in the record).2
[12] Assuming solely for argument’s sake that appellate counsel failed to raise a
clearly stronger issue of prosecutorial misconduct, Archer nonetheless is unable
to demonstrate that, but for his counsel’s deficient performance, the result of his
direct appeal would have been different. The prosecutor’s comments that
Archer asserts form the basis of her alleged misconduct are, as the post-
conviction court correctly found, “nearly identical” to the same comments
disapproved of by our Supreme Court in Ryan. Appellant’s App. Vol. 2 at 20-
21; compare supra at 6-7 with Ryan, 9 N.E.3d at 668-72. However, while our
Supreme Court disapproved of the prosecutor’s similar comments in Ryan, it
held that those comments were insufficient to demonstrate fundamental error.
9 N.E.3d at 672-73. Accordingly, even if appellate counsel had raised the issue
of fundamental error with respect to the prosecutor’s comments here, this Court
would have affirmed.
2
To the extent that Archer argues that Brummett and Ryan were not available for appellate counsel to rely on
because they had not yet been decided, we note that neither case created a new legal standard. Indeed, in
Brummett, our Supreme Court explicitly clarified that “Ryan did not alter the doctrine of fundamental error”
on issues of prosecutorial misconduct. Brummett, 24 N.E.3d at 966. In other words, the law of prosecutorial
misconduct was well established at the time of Archer’s direct appeal and was unchanged by Brummett and
Ryan.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 9 of 12
[13] In sum, the post-conviction court did not err by finding that Archer did not
receive the ineffective assistance of appellate counsel based on the failure to
raise this issue in the direct appeal.
B. Appellate Brief
[14] Archer next alleges that he received the ineffective assistance of appellate
counsel because appellate counsel filed a deficient brief on his behalf. Archer
contends that appellate counsel did not present cogent argument regarding
improper vouching and ineffective assistance of trial counsel issues and that
appellate counsel did not have voir dire transcribed.
[15] Counsel is not required to be “perfect representation, only a ‘reasonably
competent attorney.’” Woodson v. State, 961 N.E.2d 1035, 1042 (Ind. Ct. App.
2012) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Isolated
mistakes, poor strategy, inexperience, and instances of bad judgment do not
necessarily render representation ineffective.” Id. We give great deference to
appellate counsel’s decisions regarding which arguments to raise on appeal,
which is “one of the most important strategic decisions of appellate counsel.”
Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012) (citing Bieghler v. State, 690
N.E.2d 188, 193 (Ind. 1997)). Appellate counsel’s performance, as to the
selection and presentation of issues, will thus be presumed adequate unless
found unquestionably unreasonable considering the information available in the
trial record or otherwise known to the appellate counsel. Id. at 491-92. To
succeed on this claim, the petitioner must show that the unraised issue was
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 10 of 12
significant, obvious, and clearly stronger than the issues that were raised.
Bieghler, 690 N.E.2d at 194.
[16] Regarding the vouching and ineffective assistance of trial counsel issues, Archer
contends that appellate counsel did not present cogent argument in his appellate
brief, yet on direct appeal, this Court discussed both issues at length. Thus, we
find his argument on this basis unavailing.
[17] Archer also contends that appellate counsel provided ineffective assistance
because counsel did not obtain a copy of the transcript of voir dire. During the
post-conviction hearing, appellate counsel testified that it was not his policy to
review voir dire because what transpires then is not evidence. A record on
appeal includes “all proceedings before the trial court,” Ind. Appellate Rule
2(L), and as we have stated, appellate counsel has a duty to thoroughly review
the entire record of a defendant’s proceedings. Wilson v. State, 94 N.E.3d 312,
321 (Ind. Ct. App. 2018).
[18] But Archer cannot show prejudice from appellate counsel’s error. Although
Archer contends that he was prejudiced by a prospective juror who, after
acknowledging that she could not be fair and impartial, was selected to serve on
the jury, the record shows that this prospective juror was dismissed from jury
service. After defense counsel challenged this prospective juror for cause, the
trial court stated, “I think she’s pretty bad” and “I’m going to grant” the
challenge. Appellant’s App. Vol. II p. 122-23. This prospective juror was then
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 11 of 12
excused. Accordingly, Archer suffered no prejudice from appellate counsel’s
failure to review this section of the transcript. 3 4
[19] In sum, the post-conviction court did not err by finding that Archer did not
receive the ineffective assistance of appellate counsel.
[20] The judgment of the post-conviction court is affirmed.
Najam, J., and Robb, J., concur.
3
Archer mentions several other issues that appellate counsel could have raised in the direct appeal.
Appellate counsel raised six issues in the direct appeal. Archer does not, in this instant appeal, show that the
unraised issues were significant, obvious, and clearly stronger than the issues that appellate counsel did raise.
4
In his direct appeal, Archer alleged that he had received the ineffective assistance of trial counsel. This
Court found that he had not. Archer again raises this argument in this instant appeal, but because this Court
has already addressed it, we decline to do so again. See Lowery, 640 N.E.2d at 1037.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2681 | July 25, 2019 Page 12 of 12