Tyrus D. Coleman v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Aug 11 2015, 7:56 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Maria-Teresa Kuzmic Ian McLean
John Pinnow Deputy Attorney General
Deputies Public Defender Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tyrus D. Coleman, August 11, 2015
Appellant-Petitioner, Court of Appeals Case No.
20A03-1407-PC-247
v.
Appeal from the Elkhart Circuit
State of Indiana, Court
The Honorable Terry C. Shewmaker,
Appellee-Respondent, Judge
Cause No. 20C01-1202-PC-14
Robb, Judge.
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Case Summary and Issue
[1] A jury found Tyrus Coleman guilty of attempted murder on March 18, 2009.
In 2010, this court reversed Coleman’s conviction on direct appeal. Our
supreme court granted transfer and affirmed Coleman’s conviction the
following year. Thereafter, Coleman filed a petition for post-conviction relief
wherein he alleged ineffective assistance of counsel. The post-conviction court
denied Coleman’s petition on June 25, 2014. Coleman appeals the denial of
post-conviction relief. His sole issue is whether the post-conviction court erred
in concluding that trial counsel was not ineffective. 1 Concluding none of the
errors alleged by Coleman amount to ineffective assistance of counsel, alone or
cumulatively, we affirm.
Facts and Procedural History
[2] The relevant facts were set forth by our supreme court in a decision on direct
appeal:
In a tragic incident occurring March 18, 2007, Tyrus Coleman shot his
friends Anthony Dye and Dye’s son Jermaine Jackson during a
confrontation on Coleman’s property, where Coleman operated a
music recording studio. The confrontation stemmed from an event
occurring approximately four months earlier in which Omar Sharpe,
one of Coleman’s musician clients, robbed Dye at gunpoint. Coleman
1
Coleman was represented by two attorneys at trial—John Kindley and John Hosinski. Hosinski conducted
voir dire and gave closing argument, and Kindley was responsible for all other aspects of the case.
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retrieved part of the stolen property from Sharpe and returned it to
Dye. Jermaine was irritated when he later learned that Sharpe had
robbed his father, but Dye asked him not to get involved. On the
afternoon of the shootings, Jermaine discovered that Sharpe was
present at Coleman’s studio and frantically phoned Dye to “[c]ome
over here right now.” Armed with a handgun Dye headed to
Coleman’s studio. In the meantime an armed and agitated Jermaine
pushed open the door to the studio and attempted to enter. Sharpe,
who was present inside, prevented Jermaine’s entry and closed the
door. Exiting the studio Coleman attempted to calm Jermaine and to
dissuade him from trying to enter. Coleman called a neighbor to come
over to help calm Jermaine; he also called his business partner to
inform him of the situation. The neighbor testified that he tried to talk
with Jermaine by telling him what [Jermaine] was doing “wasn’t
worth it. Just go ahead and leave. There was kids around and people
around that didn’t have nothing to do with what they was angry
about.” According to the witness Jermaine responded by saying,
“F* *k that. He didn’t think about that s* *t when he did the s* *t to
my Daddy.” Coleman armed himself and walked back and forth in
front of the studio door holding his handgun at his side. As Coleman
was making a phone call, Dye came into the yard through a front gate
carrying a handgun which was pointed toward the ground. Dye strode
toward his son Jermaine, who was standing next to Coleman on the
patio in front of the studio. Within three seconds, the following
occurred: Dye stepped onto the patio where Jermaine and Coleman
were standing. As Dye stepped in front of Coleman, Coleman raised
his gun and fired at Dye, who immediately fell to the ground.
Coleman then shot Dye a second time. At that point Coleman “turned
to Jermaine.” Coleman saw that Jermaine’s handgun, which before
that time had been concealed under his shirt and in a holster, was
“pointed at [Coleman]”; and Coleman shot Jermaine. Jermaine fell to
the ground and died at the scene as a result of his injuries. After the
shooting, Coleman drove to Milwaukee disposing of his weapon along
the way. Several days later he returned to Elkhart and surrendered to
the police.
The State charged Coleman with murder, a felony, for the death of
Jermaine and attempted murder, a Class A felony, for shooting Dye.
During a jury trial conducted in February 2008 Coleman testified and
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admitted the shootings, but contended that his actions against both
Jermaine and Dye were justified on the basis of self-defense. The jury
returned a verdict of not guilty on the murder charge, but was unable
to reach a verdict on the attempted murder charge. The trial court thus
declared a mistrial on that count and scheduled another trial. Prior to
retrial Coleman filed a motion to dismiss contending a subsequent trial
on attempted murder was barred by collateral estoppel and would
therefore violate the Double Jeopardy Clauses of both the United
States and Indiana Constitutions. After a hearing, the trial court
denied the motion. A retrial ensued, at the conclusion of which the
jury found Coleman guilty as charged. Thereafter the trial court
sentenced him to a term of forty-five years.
Coleman v. State, 946 N.E.2d 1160, 1163-64 (Ind. 2011) (record citations and
footnotes omitted).
[3] In a divided opinion, this court reversed Coleman’s conviction on grounds of
collateral estoppel. Coleman v. State, 924 N.E.2d 659 (Ind. Ct. App. 2010). Our
supreme court subsequently granted transfer and on May 18, 2011, affirmed
Coleman’s conviction, concluding collateral estoppel did not bar retrial.
Coleman, 946 N.E.2d at 1166. On February 2, 2012, Coleman filed a pro se
petition for post-conviction relief that was later amended by counsel. Coleman
alleged that he was entitled to relief because his trial and appellate counsel had
been ineffective in numerous respects.
[4] The post-conviction court held a two-day hearing on June 27, 2013 and
November 25, 2013. On June 25, 2014, following a hearing, the post-
conviction court issued a ten-page order denying Coleman’s petition. Coleman
now appeals.
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Discussion and Decision
I. Standard of Review
A. Post-Conviction Relief
[5] A defendant who has exhausted the direct appeal process may challenge the
correctness of his conviction and sentence by filing a post-conviction petition.
Parish v. State, 838 N.E.2d 495, 499 (Ind. Ct. App. 2005). Post-conviction
procedures do not provide an opportunity for a super appeal. Id. Rather, they
create a narrow remedy for subsequent collateral challenges to convictions that
must be based on grounds enumerated in the post-conviction rules. Id. Post-
conviction proceedings are civil proceedings, and a defendant must establish his
claims by a preponderance of the evidence. Id.
[6] In reviewing the judgment of a post-conviction court, this Court considers only
the evidence and reasonable inferences supporting its judgment. Hall v. State,
849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is the sole judge of
the evidence and the credibility of witnesses. Id. at 468-69. To prevail on
appeal from the denial of post-conviction relief, the petitioner must show that
the evidence as a whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Id. at 469. Only where the
evidence is without conflict and leads to but one conclusion, and the post-
conviction court has reached the opposite conclusion, will the court’s findings
or conclusions be disturbed as being contrary to law. Id.
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[7] Where, as here, the post-conviction judge is the same judge who conducted the
original trial, such a jurist is uniquely situated to assess whether counsel’s
performance fell below an objective standard of reasonableness based on
prevailing professional norms, and whether, but for counsel’s unprofessional
conduct, there was a reasonable probability that the jury would have reached a
different verdict. McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct. App. 2012),
trans. denied; see also State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003) (noting that
because judge presided at both original trial and post-conviction hearing, judge
was in “an exceptional position” to assess weight and credibility of factual
evidence and whether defendant was deprived of a fair trial).
B. Ineffective Assistance of Counsel
[8] Coleman argues that the post-conviction court erred in denying his petition
because he received ineffective assistance of trial counsel. We review claims of
ineffective assistance of trial counsel under the two-prong test established in
Strickland v. Washington, 466 U.S. 668 (1984). The defendant must show that
trial counsel’s performance fell below an objective standard of reasonableness
based on prevailing professional norms and that there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different. Moody v. State, 749 N.E.2d 65, 67 (Ind. Ct. App. 2001),
trans. denied.
[9] Counsel is afforded considerable discretion in choosing strategy and tactics, and
we will accord those decisions deference on appeal. Wrinkles v. State, 749
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N.E.2d 1179, 1195 (Ind. 2001), cert. denied, 535 U.S. 1019 (2002). Counsel’s
performance is presumed effective, and a defendant must offer strong and
convincing evidence to overcome this presumption. Smith v. State, 822 N.E.2d
193, 202 (Ind. Ct. App. 2005), trans. denied. We will not speculate as to what
may or may not have been advantageous trial strategy as counsel should be
given deference in choosing a trial strategy which, at the time and under the
circumstances, seems best. Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998).
[10] If we can dismiss an ineffective assistance of counsel claim on the prejudice
prong, we need not address whether counsel’s performance was deficient.
Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). Rather, we may proceed to
evaluate whether the alleged error rendered the result of petitioner’s trial
fundamentally unfair or unreliable. Cooper v. State, 687 N.E.2d 350, 353 (Ind.
1997). When making this evaluation, we consider the totality of the evidence,
taking into account the effect of the alleged error. Id. A defendant is “entitled
to a fair trial, not a perfect trial.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014)
(citation omitted).
II. Assertions of Ineffective Assistance of Trial Counsel
[11] At the outset, we note that the post-conviction court’s order discussed a video
recording of the shooting as follows:
The video taped recording of the actual shooting herein . . . shows Dye
entering the backyard until he is twice shot by [Coleman]; Dye has his
gun to his side, and is walking in the direction of and looking at his
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son, Jermaine Jackson. [Coleman] appears from the shadow and from
the side and behind Dye, and as Dye walks past [Coleman] with his
gun down, [Coleman] raised his own gun and shoots Dye in the back
of his head behind his ear. As Dye falls to the ground, [Coleman]
shoots him again. It is not until this separate and distinct crime occurs
that Dye’s son Jermaine pulls his weapon and shoots at [Coleman].
The evidence presented at trial was also that after the shooting,
[Coleman] paced in the backyard, had a cell phone but did not call
emergency personnel or law enforcement, but rather fled with his
weapon, later throwing the gun into a body of water and left the state.
Appendix to Brief of Petitioner-Appellant at 344. In light of this
“overwhelming evidence of [Coleman’s] guilt,” the post-conviction court
concluded that “it [was] unlikely that the outcome of the trial would have been
any different even if counsel would have done everything [Coleman] alleges
was deficient. . . . [Coleman] has not shown that the outcome of his trial likely
would have been different if his trial counsel would have performed
differently.” Id. (citation omitted). We nonetheless address Coleman’s
numerous allegations of ineffective assistance of trial counsel.2
2
We have counted seventeen allegations of ineffective assistance of counsel, which we have consolidated as
appropriate. As the Ninth Circuit has said:
Like other mortals, appellate judges have a finite supply of time and trust; every weak
issue in an appellate brief or argument detracts from the attention a judge can devote to
the stronger issues, and reduces appellate counsel’s credibility before the court. For these
reasons, a lawyer who throws in every arguable point – “just in case”—is likely to serve
her client less effectively than one who concentrates solely on the strong arguments.
Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
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[12] Coleman specifically contends that trial counsel was ineffective because counsel
failed to: 1) question prospective jurors about their views on self-defense during
voir dire; 2) impeach Dye with two prior inconsistent statements, cross-examine
Dye about his gun, make an offer of proof about Dye’s pending charges, and
tender a jury instruction on Dye’s use immunity; 3) advise Coleman’s character
witnesses that there was a separation of witnesses order in place and make an
offer of proof; 4) call Omar Sharpe and Laquisha Hunt as witnesses; 5) discuss
the trial court’s order on the State’s motion in limine with defense witnesses; 6)
present the entire video of the shooting to the jury; 7) argue a consistent defense
during closing argument; 8) argue the State had the burden of disproving self-
defense beyond a reasonable doubt; and 9) tender an instruction on the defense
of property. Coleman also argues that trial counsel Kindley admitted his
deficient trial performance and that the cumulative effect of the alleged errors
amounted to ineffective assistance of counsel.
A. Voir Dire
[13] Coleman first contends he is entitled to post-conviction relief because trial
counsel did not question prospective jurors about their views on self-defense
during voir dire. Coleman makes only a conclusory statement that this failure
constituted ineffective assistance of counsel and offers no supporting argument
or authority. He has therefore waived appellate review of this contention. See
Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (citing Indiana Appellate Rule
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46(A)(8)(d) and explaining that failure to support an argument with appropriate
citations to legal authority waives that argument for appellate review).
[14] Waiver notwithstanding, we find no error. Defense counsel informed the
prospective jurors that the case was about Coleman’s intent. Specifically, the
case was about whether Coleman intended to murder Dye or had simply
intended to defend himself. Our review of the evidence reveals that the State
questioned the prospective jurors about their ability to 1) assess this issue with
direct and circumstantial evidence; 2) judge the credibility of witnesses; and 3)
hold the State to its burden of proof. Further, we agree with the State that the
prospective “jurors answered questions relevant to Coleman’s defense in a way
that allowed Coleman’s team to concentrate on studying and noting the jurors’
responses.” Brief of Appellee at 10. We further agree that “[t]his is why [trial
counsel] ended the last venire panel by saying: ‘[the State] asked everything. I
cannot think of a legitimate question to ask any of you that he hasn’t already
asked you. So I’m going to turn to the Court and say no questions.” Transcript
at 147.3 See Wilkes v. State, 984 N.E.2d 1236, 1246-48 (Ind. 2013) (holding trial
counsel not ineffective for failing to question a juror in part because the State
questioned the juror and the juror’s answers “were apparently satisfactory to
both parties[,]” and noting that jury selection is a matter of strategy within trial
3
We cite to the transcript of the 2009 trial, which is the subject of this appeal, as Transcript; to the transcript
of the 2008 trial as 2008-Transcript; and to the transcript of the post-conviction hearing as PCR-Transcript.
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counsel’s discretion). In addition, Coleman has failed to show any prejudice in
the makeup of the jury. Coleman has failed to meet his burden to show that
trial counsel was ineffective for failing to question the prospective jurors about
their views on self-defense.
B. Testimony of Anthony Dye
[15] Coleman next argues that defense counsel demonstrated deficient performance
in several respects in dealing with the testimony of witness and victim Dye.
The State responds that Coleman has failed to show any deficiency or
prejudice. We agree with the State.
1. Failure to Impeach Dye with Prior Inconsistent Statements
[16] At Coleman’s first trial, Dye testified that when he entered Coleman’s premises,
he might have asked his son where Sharpe was by asking, “[W]here that n****r
at[?]” 2008-Tr. at 135. At the second trial, Dye testified that he did not say
“anything to anybody” when he entered the premises. Tr. at 156. Also at
Coleman’s first trial, Dye testified that he did not believe Coleman was
involved when Sharpe robbed him. At the second trial, Dye testified that when
the robbery first happened, he gave Coleman the “benefit of the doubt [even
though] everybody else . . . kept putting him in it, but I protected him till the
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end.” Tr. at 160. Coleman argues trial counsel was ineffective for failing to
impeach Dye with these prior inconsistent statements.4
[17] Impeachment is the process of attacking the credibility of a witness who has
given testimony. Ellyson v. State, 603 N.E.2d 1369, 1375 (Ind. Ct. App. 1992).
Impeachment is an important matter at trial where the only direct evidence of
the defendant’s guilt is contained in the testimony of one witness. See id. Here,
however, evidence of Coleman’s guilt was contained in the testimony of many
witnesses as well as in a video of the crime. Coleman has failed to meet his
burden to show that there is a reasonable probability that the result of the
proceeding would have been different had he impeached Dye with his prior
inconsistent statements.
2. Failure to Cross-Examine Dye about his Gun
[18] Coleman next argues that trial counsel was ineffective for failing to ask Dye if
his gun was loaded when he entered Coleman’s premises. According to
Coleman, trial counsel’s failure to ask this question was deficient performance
because “[e]vidence the alleged victim was armed with a loaded weapon is a
fact that would reasonably place Coleman in fear or apprehension of death or
serious bodily injury.” Appellant’s Br. at 23. However, it was not necessary for
4
Especially regarding the second set of so-called inconsistent statements, we agree with the State that
Coleman “pl[ied] the record for a contradiction between Dye’s testimony at his first and second trials” and
failed to find a significant one. Appellee’s Br. at 14. We nevertheless address Coleman’s contention.
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Coleman to know whether the gun was loaded to be placed in fear. See Alstatt v.
State, 455 N.E.2d 323, 324 (Ind. 1983) (“We find it ludicrous to argue that a
person has no reason to be in fear unless he knows that a gun pointed at him is
loaded.”). Coleman has failed to show that the result of the proceeding would
have been different had trial counsel asked Dye if his gun was loaded when he
entered Coleman’s premises.
3. Failure to Make an Offer of Proof on Dye’s Pending Charges
[19] The State sought and was granted a pretrial order to exclude evidence that Dye
had pending charges for being a serious violent felon in possession of a firearm
and for being an habitual offender arising out of this incident. Coleman argues
that trial counsel was ineffective for failing to make an offer of proof regarding
these charges, as they were relevant to the prosecutor’s request for use
immunity. Although Coleman details how and why he believes this was
deficient performance, he has wholly failed to allege that he was prejudiced by
this failure. Coleman has failed to meet his burden to show that there is a
reasonable probability that the result of the proceeding would have been
different if he had made such an offer of proof.
4. Failure to Tender an Instruction on Dye’s Use Immunity
[20] In addition, Coleman argues that trial counsel was ineffective because he did
not tender a jury instruction on use immunity. In support of his argument, he
directs us to J.J. v. State, 858 N.E.2d 244, 252 (Ind. Ct. App. 2006), where this
court reversed the denial of post-conviction relief because trial counsel had
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failed to inform the jury that a witness was testifying pursuant to a grant of use
immunity. Here, however, the jury was informed that Dye was testifying
pursuant to use immunity and told that any evidence Dye gave could be used in
a criminal proceeding against him. Tr. at 165. Coleman has again failed to
meet his burden to show a reasonable probability that the result of the
proceeding would have been different if he had tendered a use immunity
instruction.
C. Failure to Advise Character Witnesses about Separation of
Witnesses Order and Failure to Make an Offer of Proof
[21] Coleman next argues that trial counsel was ineffective for failing to advise his
character witnesses, Thomas Rogers, Mikkilyn Holderad, and Don Porter,
about the trial court’s separation of witnesses order. According to Coleman,
because trial counsel failed to advise the witnesses about this order, they were
not allowed to testify about his reputation for truthfulness.5 Coleman further
argues that trial counsel was ineffective because he failed to make an offer of
proof regarding the content of their testimony.
[22] Indiana Rule of Evidence 608(a) provides that a witness’s credibility may be
supported by testimony about the witness’s reputation for having a character for
5
In fact, though, counsel only called Rogers, whose testimony was excluded in part because he had sat in the
courtroom all day in violation of the separation of witnesses order but also because he knew Coleman only
through work and could not offer an opinion of Coleman’s reputation for truthfulness in the community.
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truthfulness or by testimony in the form of an opinion about that character.
However, the rule further provides that evidence of a truthful character is
admissible only after the witness’s character for truthfulness is attacked. Here,
because the State did not attack Coleman’s character for truthfulness, the
character evidence would not have been admissible and Coleman was not
prejudiced by the exclusion of Rogers’s testimony or by the failure to call the
other character witnesses. Further, because evidence about Coleman’s
reputation for truthfulness was not admissible, Coleman was not prejudiced by
trial counsel’s failure to make an offer of proof.
D. Failure to Call Omar Sharpe and Laquisha Hunt as
Witnesses
[23] Coleman next argues that trial counsel was ineffective for failing to call Omar
Sharpe and Laquisha Hunt as witnesses. The decision regarding what
witnesses to call is a matter of trial strategy which we will not second-guess.
Wrinkles, 749 N.E.2d at 1201.
[24] Coleman contends that trial counsel was ineffective for failing to call Sharpe as
a witness because Sharpe would have corroborated his testimony that he was
not involved in the robbery. However, our review of the post-conviction
hearing reveals that trial counsel decided during the trial not to call Sharpe as a
witness and had him transported back to jail. It was not until closing argument
that the State suggested that Coleman was involved in the robbery. Trial
counsel, who “never even imagined” Coleman’s involvement in the robbery
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would be an issue at trial, PCR-Tr. at 67, realized that he could have questioned
Sharpe about the issue had he called him to the stand during trial. The fact that
trial counsel wished in retrospect that he had called Sharpe as a witness based
on the State’s suggestion in closing argument does not amount to deficient
performance and ineffective assistance of counsel. “Judicial scrutiny of
counsel’s performance is highly deferential and should not be exercised through
the distortions of hindsight.” Timberlake v. State¸ 753 N.E.2d 591, 605 (Ind.
2001), cert. denied, 537 U.S. 839 (2002) (citation omitted).
[25] Coleman further complains that trial counsel did not call Hunt, Coleman’s
girlfriend at the time of the incident, as a witness. Hunt testified at the post-
conviction hearing regarding threats she allegedly heard Dye make to Coleman
prior to the shooting. Our review of the evidence leads us to agree with the
State, that Hunt’s testimony about overhearing Dye threaten Coleman during a
phone call “gives every indication of having been fabricated.” Appellee’s Br. at
29. At the very least, her testimony was very imprecise. In fact, Hunt’s account
of the alleged threat was contradicted by Coleman’s testimony at the trial.
There is nothing in Hunt’s post-conviction testimony to support the notion that
failing to call her as a witness to give that same dubious testimony at Coleman’s
retrial would have produced a different result.
[26] The post-conviction court concluded that trial counsel made strategic decisions
not to call Sharpe and Hunt as witnesses. The evidence as a whole does not
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lead unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court. See Hall, 849 N.E.2d at 468.
E. Failure to Discuss the Trial Court’s Order on the State’s
Motion in Limine with Defense Witnesses
[27] The trial court entered an order in limine barring evidence that the day of the
shooting Jermaine went to a gun range and that Jermaine had been killed
during Coleman’s confrontation with Dye. At trial, after the State rested, trial
counsel called Yarrum Murray as Coleman’s first witness and elicited testimony
that Jermaine had gone to the gun range before the shooting. The State
objected, and during a subsequent hearing outside the presence of the jury, the
trial court learned that trial counsel had not informed either Murray or Jamie
Allen about the order in limine. The trial court ordered trial counsel to provide
the witnesses with copies of the order and to be sure that the witnesses
understood it. The trial court then previewed Murray’s testimony and excluded
it, including his testimony that Jermaine went to a gun range the day of the
shooting. The court later previewed Allen’s testimony and also excluded it,
including testimony that Dye called Jermaine before the shooting. The trial
court further concluded that trial counsel had not intentionally violated the
order.
[28] Coleman now argues that trial counsel was ineffective for failing to discuss the
trial court’s order on the State’s motion in limine with Murray and Allen.
According to Coleman, trial counsel’s failure to talk to Murray about the order
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“resulted in Murray’s testimony [that he went to the gun range with Jermaine
the morning of the shooting] being excluded at trial.” Appellant’s Br. at 29.
Coleman claims that he was prejudiced because this evidence was “admissible
to show Jermaine’s state of mind and relevant to Coleman’s claim of self-
defense.” Id. at 28.
[29] First, there is no evidence that Murray’s testimony was excluded because trial
counsel failed to discuss the order with him. The trial court concluded that trial
counsel had not intentionally violated the order. Second, we agree with the
State that “because there is no evidence that Coleman was aware of Jermaine’s
trip to the shooting range, Jermaine’s [alleged] trip could not have played any
role in Coleman’s appreciation of the situation near the studio,” Appellee’s Br.
at 32. Coleman could therefore not have been prejudiced by the exclusion of
this evidence.
[30] Coleman also claims that trial counsel’s failure to discuss the motion in limine
with Allen resulted in the exclusion of evidence that Dye called Jermaine just
before the shooting. Again, there is no evidence that Allen’s testimony was
excluded because trial counsel failed to discuss the order with her. There is also
no evidence that Coleman was aware of Dye’s alleged call to Jermaine.
Coleman could therefore not have been prejudiced by the exclusion of this
evidence.
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F. Failure to Present the Entire Video of the Shooting to the
Jury
[31] Coleman next argues that trial counsel was ineffective “in not sufficiently
familiarizing himself with the equipment used to play the surveillance video as
to ensure that the portion played for the jury showed that Jermaine had a
handgun before Coleman shot Dye.” Appellee’s Br. at 33-34. According to
Coleman, he was prejudiced because without seeing the portion of the video
that showed Jermaine carrying a handgun, the jury was not provided evidence
supporting his version of the events that he was facing two-armed men.
However, our review of the evidence reveals that two eyewitnesses testified that
Jermaine was armed. In addition, during closing argument, the State conceded
that Jermaine was armed. Coleman has failed to show that the result of the
proceeding would have been different had the jury seen that portion of the
video showing Jermaine carrying a handgun.
G. Arguing Inconsistent Defenses
[32] During closing argument, trial counsel argued both that Coleman 1) shot Dye
in self-defense and 2) did not have the intent to kill Dye. Coleman now
contends that trial counsel was ineffective for arguing inconsistent defenses.
[33] However, the choice of defenses for trial is a matter of trial strategy. Van Evey v.
State, 499 N.E.2d 245, 248 (Ind.1986). Here, the State points out that:
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The evidence proving that Coleman shot Dye has always been
overwhelming and uncontested. Opportunities which might be
available in other attempted-murder cases, such as disputes over
proof of the perpetrator’s identity; suppression of incriminating
evidence; or challenges to evidence proving commission of the
physical acts required to commit the offense, have always been
unavailable to Coleman’s counsel. Coleman’s attorneys wisely
selected the only battlefield available to them, namely,
Coleman’s intent. The facts surrounding Coleman’s actions
permitted counsel the opportunity to argue for reasonable doubt
as to whether Coleman had even committed the charged offense
in the first place, and to also argue that even if Coleman had
committed the offense, he was justified in doing so.
Appellee’s Br. at 37-38 (emphasis in original). We will not second-guess trial
strategy on appeal. Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App. 1997),
trans. denied.
[34] Coleman nevertheless argues that Page v. State, 615 N.E.2d 894 (Ind. 1993),
supports his claim that trial counsel was ineffective for arguing inconsistent
defenses. There, our supreme court held that trial counsel’s failure to submit a
voluntary manslaughter instruction did not constitute ineffective assistance of
counsel in light of his theory of self-defense. Id. at 895-96. However, our
supreme court also stated that trial counsel could have requested such an
instruction and that the trial court could have properly given it, id. at 895,
which supports the State’s argument that trial counsel was not ineffective for
strategically arguing both defenses. Coleman has failed to demonstrate that
trial counsel's strategic decisions fell below an objective standard of
reasonableness.
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H. Failure to Argue Burden of Proof in Closing Argument
[35] Coleman also argues that trial counsel was ineffective for failing to argue in
closing argument that the State had the burden of disproving self-defense
beyond a reasonable doubt. Coleman is correct that the State has the burden of
disproving the claim of self-defense beyond a reasonable doubt, see McEwen v.
State, 695 N.E.2d 79, 90 (Ind. 1998), and he concedes that the jury was so
instructed. He also concedes that trial counsel mentioned the self-defense
instruction during closing argument. His sole contention is that trial counsel
should have mentioned the State’s burden again during closing argument.
Coleman makes only a conclusory statement that this failure constituted
ineffective assistance of counsel and offers no supporting argument or authority.
He has therefore waived appellate review of this contention. See Pierce, 29
N.E.3d at 1267. Waiver notwithstanding, we find no error. Our review of the
evidence reveals that during trial, trial counsel repeatedly argued the elements
of self-defense and the State’s burden to prove Coleman’s guilt beyond a
reasonable doubt. Coleman has failed to meet his burden to show that there is
a reasonable probability that the result of the proceeding would have been
different had he mentioned the State’s burden of proof again during closing
argument.
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I. Failure to Tender a Jury Instruction on the Defense of
Property
[36] In addition, Coleman argues that trial counsel was ineffective for failing to
tender a jury instruction on the defense of property. Indiana Code section 35-
41-3-2(c) (2012) provides that with respect to property other than a dwelling or
curtilage, a person is justified in using reasonable force against another person if
the person reasonably believes that the force is necessary to immediately
prevent or terminate the other person’s trespass or criminal interference with
property lawfully in the person’s possession. However, a person is only
justified in using deadly force when it is necessary to prevent serious bodily
injury to the person or a third person, or the commission of a forcible felony.
Ind. Code § 35-41-3-2(a) (2012). A jury instruction must be supported by the
evidence. Taylor v. State, 602 N.E.2d 1056, 1061 (Ind. Ct. App. 1992), trans.
denied.
[37] Here, Coleman specifically argues that there is evidence to support this
instruction because Jermaine’s action in trying to break into Coleman’s
recording studio while armed with a handgun constituted a forcible felony.
However, the State correctly points out that Jermaine’s attempt to enter the
studio ended without the use of deadly force before Coleman armed himself
and shot Dye. We find no evidence to support this instruction. Therefore, trial
counsel was not deficient for failing to tender such an instruction.
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J. Trial Counsel Admitted that He Was Ineffective
[38] Coleman further argues that the post-conviction court erred in denying his
petition because trial counsel admitted that he was ineffective due to his
inexperience. However, our review of the evidence reveals that trial counsel is,
to quote the post-conviction court, “well read and is a recognized scholar.”
App. at 343. The evidence further reveals that trial counsel agrees with the
statement in an internet article that the “defense lawyer should candidly admit
failure for the client’s sake. It’s the client’s best chance.” State’s PCR Exhibit
1. In addition, as the State points out, trial counsel’s testimony was
“accompanied by his fervent expressions of belief that Coleman is actually
innocent; bitter recriminations against the legal system that convicted Coleman;
and an unwarranted belief in his own professional failure.” Appellee’s Br. at
40. Further, the record of proceedings reveals that trial counsel filed
appropriate motions, cross-examined witnesses, made objections, responded to
objections, and made cogent argument. Based on this evidence, the post-
conviction court concluded that trial counsel’s “assertions that he was deficient
in his performance . . . lack[ed] credibility when weighed against the facts . . . in
the record,” and determined that Coleman “failed in his burden to prove
ineffective assistance of counsel.” App. at 343-44. Although the experience as
a whole may be a good lesson to a new lawyer not to take cases he or she is not
prepared to handle, Kindley recognized the limitations of his trial experience
and engaged co-counsel. In hindsight, every lawyer makes mistakes during
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trial. But again, a defendant is not entitled to a perfect trial, only a fair one. See
Inman, 4 N.E.3d at 203. Therefore, it is only when counsel’s mistakes render
the outcome of the trial unfair that relief is appropriate, and we cannot say
Coleman’s trial was unfair. The evidence as a whole does not lead unerringly
and unmistakably to a conclusion opposite that reached by the post-conviction
court. See Hall, 849 N.E.2d at 468.
K. Cumulative Error
[39] Last, Coleman argues that the cumulative effect of counsel’s errors deprived
him of his right to the effective assistance of counsel. However, our supreme
court has explained that “[t]rial irregularities which standing alone do not
amount to error do not gain the stature of reversible error when taken together.”
Kubsch v. State, 934 N.E.2d 1138, 1154 (Ind. 2010) (citing Reaves v. State, 586
N.E.2d 847, 858 (Ind. 1992)). We find no error, cumulative or otherwise, here.
Conclusion
[40] For the foregoing reasons, the post-conviction court did not err in concluding
Coleman had failed to prove he received the ineffective assistance of counsel
and the judgment of the post-conviction court is affirmed.
[41] Affirmed.
Bailey, J., and Brown, J., concur.
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