John R. Myers II v. State of Indiana ( 2015 )

May 28 2015, 7:33 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Anne Murray Burgess Ian McLean
Joanna Green Deputy Attorney General
Deputy Public Defenders Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John R. Myers II, May 28, 2015
Appellant-Petitioner, Court of Appeals Cause No.
55A05-1312-PC-608
v. Appeal from the Morgan Superior
Court
State of Indiana,
The Honorable G. Thomas Gray,
Appellee-Respondent Judge
Cause No. 55D01-0902-PC-33
Friedlander, Judge.
[1] John R. Myers II appeals from the denial of his petition for post-conviction
relief (PCR). He raises the following restated issues on appeal:
1. Did the post-conviction court err in concluding that Myers was not
denied the effective assistance of trial counsel?
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2. Did the post-conviction court err in concluding that Myers’s due
process rights were not violated by the State’s alleged failure to
disclose all exculpatory evidence to the defense?
3. Did the trial court err in concluding that Myers was not entitled to
relief based on his claims of prosecutorial misconduct?
[2] We affirm.
[3] The facts underlying Myers’s conviction were set forth as follows in this court’s
opinion arising out of his direct appeal:
In the spring of 2000, John Myers II lived approximately seven tenths
of a mile from the intersection of North Maple Grove Road and West
Maple Grove Road, at 1465 West Maple Grove Road, north of
Bloomington in Monroe County. Myers was on vacation from work
the week of May 29 through June 2.
On the morning of May 31, 2000, Jill Behrman, an accomplished
bicyclist who had just completed her freshman year at Indiana
University, left her Bloomington home to take a bicycle ride. She
logged off of her home computer at 9:32 a.m. Behrman did not report
to the Student Recreational Sports Center, where she was scheduled to
work from noon to 3:00 p.m. that day, nor did she appear at a
postwork lunch scheduled with her father and grandparents.
Following nationwide search efforts, Behrman’s remains were
ultimately discovered on March 9, 2003, in a wooded area near the
intersection of Warthen and Duckworth Roads in Morgan County.
The cause of her death was ruled to be a contact shotgun wound to the
back of the head.
With respect to the events surrounding Behrman’s disappearance, one
report indicated that a young woman matching Behrman’s description
was seen riding her bicycle north of Bloomington on North Maple
Grove Road at approximately 10:00 a.m. the morning of May 31. A
tracking dog later corroborated this report. While another report
placed Behrman south of Bloomington at 4700 Harrell Road at
approximately 9:38 a.m., some authorities later discounted this report
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due to her log-off time of 9:32 a.m. and the minimum fourteen minutes
it would take to bicycle to Harrell Road. The tracking dog did not
detect Behrman’s scent trail south of Bloomington.
At approximately 8:30 a.m. on the morning of May 31, 2000, in the
North Maple Grove Road area, a witness saw a white “commercial
looking” Ford van without identification on its doors or sides drive
slowly past his driveway on North Maple Grove Road, heading south.
Two men were inside the van. This witness saw the van two
additional times that morning by approximately 9:00 a.m. and later
identified the van as “exactly like” a Bloomington Hospital van.
At some point before noon on May 31, 2000, another witness saw a
bicycle later determined to be Behrman’s lying off of the east side of
North Maple Grove Road near the intersection of North Maple Grove
Road and West Maple Grove Road. The location of the bicycle was
approximately one mile from Myers’s residence and ten and one-half
miles from Behrman’s house.
On May 31, the date of Behrman’s disappearance, two witnesses
separately noted that the windows in Myers’s trailer were covered,
which was unusual. One of these witnesses also observed that Myers’s
car was parked fifty yards from its normal location and remained out
of sight from the road for approximately three days. Myers told this
witness that he had parked his car in that secluded spot because he did
not want anyone to know he was home.
Myers’s account of his activities during his vacation week of May 29
through June 2 was reportedly that he was “here and there.” Myers’s
employer at the time was the Bloomington Hospital warehouse, where
he had access to two white panel Ford vans. Besides being “here and
there,” Myers indicated that he had been mostly at home, that he had
gone to a gas station, and that he had gone to Kentucky Kingdom but
found it was closed. Myers additionally stated that he and his
girlfriend, Carly Goodman, had cancelled their plans to go to Myrtle
Beach, South Carolina, and to Kings Island, Ohio, that week. Phone
calls made from Myers’s trailer on May 31 were at the following times:
9:15 a.m.; 9:17 a.m.; 9:18 a.m.; 10:37 a.m.; 10:45 a.m.; and 6:48 p.m.
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Myers’s mother, Jodie Myers, testified that she had made those calls.[1]
The calls were to drive-in theaters and various state parks.
Myers was reportedly almost hysterical on May 31 and spoke of
leaving town and never coming back. Myers’s aunt, Debbie Bell,
observed that Myers had been very depressed in the preceding month
and believed that this was due to problems with his girlfriend. In late
April 2000, Myers had called Bell because he had been having
problems with his girlfriend and felt like “a balloon full of hot air about
to burst.”
Carly Goodman was Myers’s girlfriend beginning in approximately
late October 1999. In March of 2000, Myers took Goodman for a long
drive through Gosport, “over a bridge where there was a creek and
into some woods.” Myers pulled his car into a clearing in the woods
where the two of them argued, which scared Goodman. Although it
was nighttime, Goodman observed the appearance of this clearing
from the car’s headlights. In late April or early May of 2000,
Goodman broke off her relationship with Myers. Goodman denied
that she and Myers had ever made plans to go to Myrtle Beach or to
Kings Island the week of May 29.
On June 5, 2000, Bell again spoke with Myers. Myers mentioned that
a girl had been abducted in the area, and he was afraid he would be
blamed for it. Myers further stated that the girl’s bicycle had been
found about a mile from his house and that “they blame [him] for
everything.” Myers additionally asserted, “[T]hey haven’t found her
body yet” and guessed that the girl was dead. In that same
conversation, Myers indicated that he had been stopped by a
1
Myers asserts that this is an inaccurate reflection of the record. After reviewing Jodie Myers’s testimony,
we agree. Although a portion of her testimony, when viewed in isolation, appears to support the assertion
that she made the phone calls on May 31, 2000, her testimony when read in its entirety reveals otherwise.
Instead, Jodie testified that after obtaining her son’s telephone records for that date, she called the listed
numbers to determine to whom they belonged. It is apparent to us that the jury was not misled into believing
that Jodie had placed the phone calls, and the State made no such argument. It is also apparent that this
court’s misunderstanding of the record had no impact on its resolution of Myers’s direct appeal.
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roadblock and was “scared” of roadblocks, but he later changed his
mind, laughed, and said he was not really “scared.”
Following a tip due to this conversation, on June 27, 2000, Detective
Rick Crussen of the Bloomington Police Department interviewed
Jodie and Myers’s father, John Myers Sr., at their residence at 3909
West Delap Road. The following day, Detective Crussen interviewed
Myers.
On June 27, 2000, immediately after Detective Crussen interviewed
Myers’s parents and the day before he interviewed Myers, Myers
called his grandmother, Betty Swaffard, and asked to borrow $200.
Myers told Swaffard he was unable to come to her house for the
money because there were roadblocks on Maple Grove Road, and he
did not want to leave his home. Myers additionally stated that he was
a suspect in the Jill Behrman disappearance. Myers did not come to
Swaffard’s home for the money.
In July 2000, Bell noticed that John Myers Sr. was unusually nervous
and agitated when in Myers’s presence. Sometime in approximately
August of 2000, Myers’s brother, Samuel, who owned a twelve-gauge
shotgun and had stored it at his parents’ house on Delap Road since
approximately 1997, noted that the gun was missing.
Myers raised the topic of Behrman’s disappearance multiple times and
in multiple contexts following her disappearance. Before Detective
Crussen interviewed him, Myers falsely stated to his Bloomington
Hospital supervisor that police had questioned him in connection with
Behrman’s disappearance because her bicycle was found close to his
home. Also in June of 2000, Myers stated to a co-worker that he
wondered whether authorities had investigated a barn in a field located
on Bottom Road off of Maple Grove Road. Additionally, some weeks
after Behrman disappeared, Myers told another co-worker during a
delivery run that Behrman’s bicycle was found in his neighborhood,
and that Behrman was probably abducted near that site. Later in 2000
or 2001, while driving with his then-girlfriend, Kanya Bailey, Myers
directed Bailey’s attention to a location a short distance from his
mother’s residence and stated he had found Behrman’s bicycle there.
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In the late spring to late summer of 2001, Myers again raised the topic
of Behrman’s disappearance with another co-worker. As the two were
driving on Bottom and Maple Grove Roads, Myers pointed out where
he lived and stated that Behrman’s bicycle had been found close to
where he used to live. A short time later, while on Maple Grove
Road, Myers stated that if he was ever going to hide a body he would
hide it in a wooded area up “this way,” pointing north. On another
occasion, Myers stated to this co-worker that he knew of someone in
Florida who had Behrman’s identification card or checkbook.
Sometime in November or December of 2001, Myers raised the topic
of Behrman’s disappearance with a family member, indicating his bet
that Behrman would be found in the woods. During this conversation,
Myers further indicated his familiarity with the Paragon area and with
Horseshoe Bend, where he liked to hunt.
Also in 2001, Myers stated to his mother, Jodie, that he had been
fishing in a creek and had found a pair of panties and a bone in a tree.
Jodie suggested that this might be helpful in the Behrman case, and
Myers agreed to call the FBI. FBI Agent Gary Dunn later returned the
call and left a message. Myers told Jodie that they should save the
answering machine tape in case they were questioned.
Sometime in 2002, Wendy Owings confessed to Behrman’s murder,
claiming that she, Alicia Sowders-Evans, and Uriah Clouse struck
Behrman with a car on Harrell Road, stabbed her with a knife in her
chest and heart, wrapped her body in plastic tied with bungee cords,
and disposed of her body in Salt Creek. In September 2002,
authorities drained a portion of Salt Creek. They found, among other
things, a knife, a bungee cord, and two sheets of plastic. Owings later
recanted her confession.
On March 27, 2002, Myers, who at the time was in the Monroe
County Jail on an unrelated charge, told Correctional Officer Johnny
Kinser that he had found some letters in some food trays one morning
that he believed Kinser should look at, apparently in connection with
the Behrman disappearance. Myers said he felt bad about what had
happened to that “young lady” and that he wished to help find her if
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he could. Myers additionally compiled a list of places potentially
providing clues to Behrman’s location. Indiana State Police Trooper
James Minton investigated the list, including gravel pits off of Texas
Ridge Road between Stinesville and Gosport. A route from Gosport
to the intersection of Warthen and Duckworth Roads in Morgan
County passes by Horseshoe Bend.[2]
On March 9, 2003, Behrman’s remains were discovered by a hunter in
a wooded area near the intersection of Warthen and Duckworth Roads
in Morgan County approximately thirty-five to forty yards from a
clearing in the timber north of Warthen Road. Authorities recovered
approximately half of the bones in Behrman’s skeleton. No soft tissue
remained. Six rib bones were among the bones missing from her
skeleton. There was no evidence of stab or knife wounds, nor was
there evidence of blunt force trauma. Investigators recovered a
shotgun shell wadding from the scene, as well as 380 number eight
shot lead pellets. The wadding found at the scene was typical of a
twelve-gauge shotgun shell wadding. The cause of Behrman’s death
was ruled to be a contact shotgun wound to the back of the head.
Scattered skull fragments and the presence of lead pellets in a variety
of places, together with certain soil stains consistent with body
decomposition, suggested that after being shot, Behrman’s body had
come to rest and had decomposed at the spot where it was found. No
clothing was found at the scene. There is nothing in the record to
clarify whether Behrman’s clothing, if it had been left at the scene,
would or would not have completely disintegrated prior to her body
being found.
In March 2003, Myers told another co-worker, who had brought a
newspaper to work announcing the discovery of Behrman’s remains,
that the woods pictured in the newspaper article looked familiar to
him, and that he had hunted there before. According to this co-
worker, the woods pictured in the newspaper article did not appear
2
Myers asserts that this court’s opinion in his direct appeal reflects a misunderstanding concerning the
content of the list of locations Myers compiled. Myers apparently believes that the opinion stated that the
note listed a route to the site at which Behrman’s remains were eventually discovered. The opinion contains
no such assertion. Instead, the court noted that a route between Gosport, near one of the places on the list,
and the area where Behrman’s remains were later found passes by Horseshoe Bend, an area where Myers
liked to hunt.
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distinctive. Myers also stated that it was good that Behrman had been
found and that he was surprised that he had not been contacted
because he knew the people who police thought had committed the
crime. Myers knew Wendy Owings, who had falsely confessed to the
crime, as well as Uriah Clouse and Alicia Sowders-Evans. Myers had
a “cocky” tone of voice when he made these comments, according to
the co-worker.
More than a year later, in November 2004, Myers called his
grandmother, Swaffard. Myers, who was upset and stated that he
needed time to himself, said to Swaffard, “Grandma, if you just knew
the things that I've got on my mind. [I]f the authorities knew it, I’d be
in prison for the rest of my life.” Myers further stated that his father,
John Myers Sr., “knew” and had “[taken] it to the grave with him.”
Subsequently, when Myers arrived at Swaffard’s house, he said with
tears in his eyes, “Grandma, I wish I wasn’t a bad person. I wish I
hadn’t done these bad things.”
Indiana State Police Detectives Tom Arvin and Rick Lang interviewed
Myers again on May 2, 2005. During this taped interview, Myers
denied having told anyone in his family that he was “scared” of the
roadblocks or that he had talked to anyone besides the police about the
case. Also in May of 2005, Myers, who was again in the Monroe
County Jail on an unrelated charge, mentioned to his bunkmate that
the state police were investigating him because Behrman’s bicycle had
been found in the vicinity of his house. Myers made approximately
three or four references to Behrman’s bicycle and was nervous and
pacing at the time. During that conversation, Myers, who was also
angry, made reference to the “bitch,” and stated to this bunkmate, “[I]f
she [referring to Behrman] wouldn’t have said anything, . . . none of
this would have happened.”
On February 17, 2006, Detective Lang took Goodman on a thirty-six-
mile drive north of Myers’s home on Maple Grove Road and into rural
Morgan County. Goodman recognized a clearing in the woods near
the corner of Warthen and Duckworth Roads, approximately thirty-
five to forty yards from where Behrman’s remains were discovered, as
the place that Myers had driven her in March 2000.
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Myers v. State, 887 N.E.2d 170, 176-80 (Ind. Ct. App. 2008) (footnotes and
citations to the record omitted), trans. denied. A grand jury indicted Myers for
Behrman’s murder in April 2006. A twelve-day jury trial commenced on
October 16, 2006, at the conclusion of which Myers was found guilty as
charged and sentenced to a term of sixty-five years. This court affirmed
Myers’s conviction on direct appeal and our Supreme Court denied transfer.
[4] Myers filed a pro se PCR petition on February 2, 2009. Counsel subsequently
entered appearances on Myers’s behalf and amended the petition. An
evidentiary hearing was held over several days in April and May 2013, at the
conclusion of which the post-conviction court took the matter under
advisement. The post-conviction court issued its written order denying Myers’s
PCR petition on November 18, 2013. Myers now appeals.
[5] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134 (Ind. 2013). “When appealing the denial of post-conviction relief,
the petitioner stands in the position of one appealing from a negative
judgment.” Id. at 1138 (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind.
2004)). In order to prevail, the petitioner must demonstrate that the evidence as
a whole leads unerringly and unmistakably to a conclusion opposite the post-
conviction court’s conclusion. Bethea v. State, 983 N.E.2d 1134. Although we
do not defer to a post-conviction court’s legal conclusions, we will reverse its
findings and judgment only upon a showing of clear error, i.e., “that which
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leaves us with a definite and firm conviction that a mistake has been made.” Id.
at 1138 (quoting Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)).
1.
[6] Myers first argues that his trial counsel were constitutionally ineffective.3 A
petitioner will prevail on a claim of ineffective assistance of counsel only upon a
showing that counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced the petitioner.
Bethea v. State, 983 N.E.2d 1134. To satisfy the first element, the petitioner
must demonstrate deficient performance, which is “representation that fell
below an objective standard of reasonableness, committing errors so serious
that the defendant did not have the ‘counsel’ guaranteed by the Sixth
Amendment.” Id. at 1138 (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind.
2002)). To satisfy the second element, the petitioner must show prejudice,
which is “a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different.” Id. at 1139. “A reasonable probability
is one that is sufficient to undermine confidence in the outcome.” Kubsch v.
State, 934 N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466
U.S. 668, 694 (1984)).
[7] There is a “strong presumption” that counsel rendered adequate service. Bethea
v. State, 983 N.E.2d at 1139. “We afford counsel considerable discretion in
3
Myers was represented at trial by the father-son defense team of Hugh and Patrick Baker, with Patrick
Baker acting as lead counsel. Except where we find it necessary to differentiate between the two, we will
refer to both Bakers collectively as “trial counsel.”
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choosing strategy and tactics, and ‘[i]solated mistakes, poor strategy,
inexperience, and instances of bad judgment do not necessarily render
representation ineffective.’” State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012)
(quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001)) (alteration in
original). Indeed, “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Strickland v. Washington, 466 U.S. at 690-91.
Moreover, because a petitioner must prove both deficient performance and
prejudice in order to succeed, the failure to prove either element defeats the
claim. See Young v. State, 746 N.E.2d 920 (Ind. 2001) (holding that because the
two elements of Strickland are separate and independent inquiries, the court
may dispose of the claim on the ground of lack of sufficient prejudice if it is
easier). Myers has raised numerous claims of ineffective assistance of trial
counsel. We address them each in turn.
A.
[8] Myers raises a number of arguments with respect to the admission into evidence
of a redacted version of his May 2, 2005 police interrogation. First, he argues
that trial counsel were ineffective for agreeing to the redactions because
portions of the statement in which he denied any involvement in Behrman’s
disappearance and murder were excised, and those statements would have been
helpful to the defense.
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[9] The interrogation in question was conducted in two parts. In the first part of
the interview, Myers was questioned by Indiana State Police Detectives Rick
Lang and Tom Arvin, and Myers repeatedly denied any involvement in or
knowledge of Behrman’s disappearance and murder. Myers was then arrested
on a separate charge of receiving stolen property, booked, fingerprinted, and
swabbed for DNA. Thereafter, a second, post-arrest interview was conducted
by Detective Jeff Heck, during which Myers again denied any involvement in
Behrman’s disappearance and murder. The State, defense, and trial court spent
a substantial amount of time discussing redactions of the interrogation.
Ultimately, the jury heard an audio recording of and was provided with a
written transcript of the partially redacted pre-arrest interview; the post-arrest
interview was omitted entirely. Myers does not appear to object to the manner
in which the pre-arrest interview was redacted. Instead, he argues that the jury
should also have heard the post-arrest interview.
[10] We have reviewed both the redacted and unredacted interrogation, and Myers
has not established either deficient performance or prejudice stemming from the
redaction of the post-arrest interview. The post-arrest interview contained
several long monologues in which the interviewer attempted to appeal to
Myers’s moral sensibilities, followed by relatively short responses from Myers.
Some of these monologues spanned several pages of transcript and made
specific reference to Myers’s past substance abuse and recovery process. The
trial court described the post-arrest interview as largely filled with “a lot of
irrelevant gibberish” that “add[ed] nothing to the factual determination in this
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case.” Trial Transcript at 26. We think this is a fair characterization. Although
Myers continued to proclaim his innocence in the post-arrest interview, his
denials of involvement were merely cumulative of his previous statements in
the pre-arrest interview, which the jury heard. Myers also made statements in
the post-arrest interview that the jury could have viewed as flippant under the
circumstances. For example, at one point, Myers stated, “you know, as we’re
sitting there talking, I’m thinking cigarettes, I’m thinking coffee[.]” PCR Exhibit
305A at 154. It was not deficient performance for trial counsel to agree to
redact the post-arrest interview in its entirety because it could have harmed
Myers and, in any event, would have added little, if anything, to the pre-arrest
interview. For the same reason, Myers was not prejudiced by the redaction.
[11] Myers also argues that counsel performed deficiently by failing to object to
portions of Detective Arvin’s and Detective Lang’s testimony concerning the
May 2, 2005 interrogation. Specifically, Myers notes that counsel did not
object to Detective Arvin’s testimony that Myers’s demeanor during the
interview was “nonchalant” and “cavalier” and that his answers appeared to be
rehearsed. Trial Transcript at 2207. Additionally, on cross-examination by trial
counsel, Detective Arvin asserted that Myers never “adamantly” or “expressly”
denied guilt. Id. at 2211-12. In response to a jury question, Detective Arvin
again testified that Myers’s demeanor was nonchalant and cavalier.
Additionally, Detective Lang testified that he did not expect Myers to confess to
the murder based on his “prior intelligence” and because “murder is one of the
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least things someone is going to confess to.” Id. at 2380-81. According to
Myers, these statements constituted inadmissible opinion testimony.
[12] The sum total of Myers’s argument that this testimony was inadmissible is
contained in the following conclusory statement in his appellant’s brief: “The
opinion evidence offered by [Detective] Arvin was objectionable, irrelevant and
prejudicial. Ind. Evidence Rule 701; Hensley v. State, 448 N.E.2d 665, 667 (Ind.
1983) (lay witnesses may not give opinions where jury is well qualified to form
an opinion).” Appellant’s Brief at 28-29. Assuming arguendo that the testimony
was objectionable, Myers has not established prejudice. With respect to
Detective Arvin’s testimony that Myers never adamantly or expressly denied
guilt, trial counsel went on to elicit testimony clarifying that Myers had, in fact,
denied involvement in Behrman’s disappearance and murder “numerous”
times. Trial Transcript at 2211. With respect to the characterizations of Myers’s
responses as rehearsed and his demeanor as nonchalant and cavalier, the jury
heard the audio recording of the redacted interview and received a written
transcript thereof, and was therefore able to draw its own conclusions as to
whether Myers’s responses and tone were inappropriately casual. Myers has
made no attempt to explain how Detective Lang’s testimony that he did not
expect Myers to confess prejudiced him, and we are unable to imagine how it
might have done so. Myers has not established that the outcome of the trial
would have been different had his trial counsel objected to this testimony.
[13] Finally, Myers takes issue with trial counsel’s failure to challenge the State’s
characterization of the May 2, 2005 interrogation in its opening statement and
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closing argument. Specifically, Myers takes issue with the prosecutor’s
assertion in opening statements that Myers’s demeanor was nonchalant—but,
as we explained above, the jury heard Myers’s interview and was able to draw
its own conclusions in this regard. Myers also notes that the State used a
Powerpoint slide presentation in its closing argument, and several of the slides
included claims that Myers never denied guilt. The presentation consisted of
over sixty slides, five of which bore the subheading “When pressed Defendant
never denies guilt”, followed by excerpts from the transcript of Myers’s
interrogation. PCR Exhibit 132. We note, however, that the slide presentation
was not admitted as an exhibit at trial; instead, it was used by the State solely as
a visual aid during closing arguments. Moreover, our review of the trial
transcript reveals that the State did not verbally assert in its closing argument
that Myers never denied guilt. The defense, on the other hand, emphasized in
its closing argument that Myers repeatedly denied guilt during his police
interrogation. Most importantly, the jury was provided a transcript and heard
an audio tape of the interrogation, during which Myers repeatedly denied any
involvement in Behrman’s disappearance and murder. Under these facts and
circumstances, we cannot conclude that Myers has established that he suffered
prejudice as a result of trial counsel’s failure to object to the use of the slides.
B.
[14] Next, Myers argues that trial counsel Patrick Baker was ineffective for telling
the jury in opening statements that the defense would present certain evidence,
and then failing to do so. Specifically, during opening statements, Patrick
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Baker stated that during a search for Behrman shortly after her disappearance, a
bloodhound alerted to the residence of Brian Hollars, who trial counsel had
identified as an alternative suspect, but that the dog was called off. Counsel
also told the jury that there was evidence that Hollars and Behrman were seen
arguing days before she disappeared. Trial counsel did not present evidence to
support these claims.
[15] The parties acknowledge that Patrick Baker was professionally disciplined for,
among other things, stating that a dog had alerted at Hollars’s home. See In re
Baker, 955 N.E.2d 729 (Ind. 2011). Our Supreme Court found that “[t]hese
statements were false and Respondent should have known that no evidence
would be admitted at trial to support them.” Id. at 729. The court noted,
however, that there was no allegation in the disciplinary proceedings that
counsel had provided substandard services to Myers or that Myers or the State
were prejudiced by the misrepresentation in his opening statement. We will
presume, however, that an attorney who tells the jury that he will present
evidence that he either knows or should know will not be presented has acted
unreasonably for the purposes of the Strickland analysis. Thus, at least with
respect to trial counsel’s statement that a search dog alerted to Hollars’s
residence, we accept Myers’s argument that trial counsel’s performance was
deficient. We are left to consider whether the statements prejudiced Myers
within the meaning of Strickland.
[16] In support of his argument that trial counsel’s unfulfilled promise in this regard
amounted to ineffective assistance of counsel, Myers directs our attention to
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two decisions of the United States Court of Appeals for the Seventh Circuit:
United States ex rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003) and Barrow
v. Uchtman, 398 F.3d 597 (7th Cir. 2005). As this court has explained,
“although decisions of the Seventh Circuit ‘are entitled to our respectful
consideration,’ its decisions on questions of federal law are not binding on state
courts.” Jackson v. State, 830 N.E.2d 920, 921 (Ind. Ct. App. 2005). Even so,
we conclude that the cases cited do not mandate the conclusion that Myers’s
trial counsel was ineffective.
[17] In United States ex rel. Hampton v. Leibach, 347 F.3d 219, the Seventh Circuit
found that Hampton’s trial counsel was ineffective for failing to investigate
exculpatory eyewitnesses to the crime. The court also considered Hampton’s
argument that his trial counsel was ineffective for failing to fulfill two promises
made during opening statement. First, Hampton’s trial counsel stated that
Hampton would testify that he was not involved in the gang-related attack for
which he was on trial, and second, that the evidence would show that Hampton
was not a member of or involved with any gang.
[18] The court explained that unforeseeable developments at trial may justify
reversals of this nature, but that “when the failure to present the promised
testimony cannot be chalked up to unforeseeable events, the attorney’s broken
promise may be unreasonable, for ‘little is more damaging than to fail to
produce important evidence that had been promised in an opening.’” Id. at 257(quoting Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988)). The court
concluded that to the extent trial counsel had legitimate reasons to conclude
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that Hampton should not testify, those reasons should have been obvious from
the outset of the case. In reaching its conclusion that counsel’s performance
was unreasonable, the court emphasized the fact that trial counsel had explicitly
promised the jury that Hampton himself would testify, reasoning that
“Hampton’s unexplained failure to take the witness stand may well have
conveyed to the jury the impression that in fact there was no alternate version
of the events that took place, and that the inculpatory testimony of the
prosecution’s witnesses was essentially correct.” Id. at 258.
[19] The court also found trial counsel’s failure to present testimony that Hampton
was not involved with a gang unreasonable, noting that such evidence would
bear on the likelihood that he had participated in a crime with “unmistakable
gang overtones.” Id. at 259. Testimony of this nature was readily available to
counsel; he simply failed to pursue it. The court concluded that counsel’s
failure to present such evidence “could only have undercut the credibility of the
defense with the jury.” Id. With respect to the prejudice element of the
Strickland standard, however, the court concluded that trial counsel’s “breach of
the promises he made in the opening statement was not so prejudicial that it
would support relief in and of itself[.]” Id. at 260. Rather, the breach “serve[d]
to underscore the more important failure to investigate exculpatory occurrence
witnesses.” Id.
[20] In Barrow v. Uchtman, 398 F.3d 597, the Seventh Circuit again encountered a
claim that counsel was ineffective for failing to deliver on promises made during
opening statements. In Barrow, trial counsel in opening statement informed the
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jury that “we will tell you about” the crime and the defendant’s denial of
involvement. Id. at 606 n.7. During the trial, however, Barrow’s counsel
presented no evidence whatsoever in defense. The court concluded that Barrow
had not established that he was prejudiced by trial counsel’s failure to deliver on
his promise to present exculpatory evidence. In reaching this conclusion, the
court carefully distinguished Hampton, noting that in that case, the court had
“placed special importance on the fact that trial counsel had specifically
promised the jury that the defendant would testify himself.” Id. at 606 (emphasis
in original). Barrow’s counsel, on the other hand, made no explicit promise
that Barrow would testify; rather, he promised to present other exculpatory
evidence. The court also noted that the nature of the evidence against Barrow
was qualitatively different from that in Hampton. In Hampton, the sole evidence
against the defendant was eyewitness testimony, but the primary evidence
against Barrow was his own confession. Under these circumstances, Barrow’s
personal testimony was far less critical than Hampton’s. Moreover, the content
of Barrow’s proposed testimony was unlikely to have altered the ultimate
verdict given the abundant evidence against him. Thus, the court concluded,
Barrow could not establish that he was prejudiced by his trial counsel’s
unfulfilled promises.
[21] Like the court in Barrow, we also conclude that Myers was not prejudiced by
trial counsel’s unfulfilled promises. First, we note that trial counsel made no
promise that Myers himself would testify. Patrick Baker’s representations that
evidence would be presented that a dog had followed Behrman’s scent to
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Hollars’s residence and that Hollars and Behrman had been seen arguing
shortly before her disappearance are more akin to the promises of trial counsel
in Barrow to present exculpatory evidence.
[22] Moreover, although trial counsel failed to deliver on these specific promises,
other evidence casting suspicion on Hollars was presented to the jury.
Evidence was presented establishing that Hollars had hired Behrman to work at
Indiana University’s Student Recreational Sports Center (SRSC) and that
Hollars and Behrman shared an interest in cycling. In fact, Hollars had given
Behrman his telephone number because he was trying to sell a bicycle and
believed someone in Behrman’s cycling club might be interested. Becky
Shoemake, who was Behrman’s cousin, roommate, and closest friend on
campus, testified that Behrman had confided in her that an older man had
asked her out and that Behrman was concerned because the man was old
enough to drink, but Behrman was not. Shoemake did not know the man’s
identity or if Behrman accepted the date. Detective Lang testified that
Behrman’s mother had told him that Behrman was probably sexually active
during her second semester. Trial counsel admitted into evidence condoms, a
pregnancy test, a package of emergency contraceptive pills, and several books
on pregnancy found in Behrman’s room. Behrman’s mother told Detective
Crussen that Hollars had called the Behrman residence three or four times on
June 1, 2000, which she found strange. Evidence was also presented that
Hollars was married and that he owned a twelve-gauge shotgun and loaded his
own shotgun shells using number eight shot, the same size used in Behrman’s
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murder. Importantly, the jury was presented with evidence that a bloodhound
tracked Behrman’s scent near Hollars’s residence. Hollars testified that he was
questioned by police on the day of Behrman’s disappearance and again by
Detective Arvin in 2003, and he believed that he was under suspicion.
[23] From the jurors’ questions, it is clear that the jury considered the possibility of
Hollars’s involvement in Behrman’s murder. A juror asked Behrman’s mother
questions about when Behrman first met Hollars. Additionally, a juror asked
Wes Burton, Behrman’s supervisor at the SRSC, whether Hollars was
romantically interested in Behrman. The jurors also wanted to know whether
written records could corroborate Hollars’s and Burton’s recollections that they
had been working together at the SRSC at the time Behrman went missing. A
juror also asked if Hollars had left the SRSC at any time on May 31, 2000, and
Hollars admitted that he had left the premises to check on athletic fields.
[24] The jurors also took note of the possibility that Behrman was pregnant. A juror
asked Behrman’s mother if Behrman had appeared to be sick, nauseated,
fatigued, or lightheaded, and Behrman’s mother recalled that Behrman had felt
poorly one morning in May. A juror also asked Behrman’s mother if she
believed Behrman would have confided in her if she had been pregnant. The
jurors did not, however, question the canine handler who testified concerning
the bloodhound search conducted a few days after Behrman’s disappearance
about trial counsel’s claim that a dog had alerted at Hollars’s residence but been
pulled off. We therefore conclude that counsel has not established prejudice
stemming from trial counsel’s failure to fulfill his promise to present evidence
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that the bloodhound alerted to Hollars’s residence and that Hollars was seen
arguing with Behrman shortly before her disappearance.
[25] Myers also argues that Patrick Baker was ineffective for failing to deliver on his
claim in opening statement that Carl Salzman, the Monroe County Prosecutor
at the time of Behrman’s disappearance, would testify that Myers was never a
suspect and that Owings, Sowders-Evans, and Clouse were his primary
suspects. In support of this argument, Myers directs our attention to Salzman’s
deposition testimony, taken just days before trial, in which Myers claims
Salzman “said exactly the opposite[.]” Appellant’s Brief at 31.
[26] Myers overstates Salzman’s deposition testimony. Salzman testified in his
deposition that his office investigated Behrman’s disappearance until her
remains were discovered in Morgan County, at which time the investigation
was turned over to Morgan County officials. Salzman testified that during the
Monroe County investigation, he never filed charges against anyone in
Behrman’s disappearance. Salzman was presented with a probable cause
affidavit for Wendy Owings, and he testified that the plan was to use the charge
to get to Sowders-Evans and Clouse. Salzman declined to file charges against
Owings because he did not believe the evidence was sufficient. Salzman was
never presented with a probable cause affidavit for Myers.
[27] Salzman testified further that after Morgan County took over the investigation,
he continued to receive tips from members of the community and jail inmates,
which he would pass on to Detective Lang. One such tip came from Betty
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Swaffard, Myers’s grandmother, who told Salzman that Myers had been
behaving strangely at the time of Behrman’s disappearance. Salzman found
Swaffard to be credible and her story to be compelling, so he passed it on to
Detective Lang and urged him to investigate further. Thus, from Salzman’s
testimony, it is apparent that Myers was not presented to Salzman as a suspect
during Salzman’s official investigation as the Monroe County Prosecutor.
While it appears that Salzman eventually came to personally suspect Myers
based on Swaffard’s testimony, this occurred well after his official involvement
in the case ended. During the Monroe County investigation, the only person
Salzman considered charging was Wendy Owings. Thus, while Patrick Baker’s
assertion that Myers was not one of Salzman’s suspects could have been
clearer, it was not demonstrably false.
[28] Nevertheless, because Salzman did not testify at trial, Patrick Baker’s promise
concerning the substance of his testimony necessarily went unfulfilled. We
note, however, that at the PCR hearing, Myers elicited no testimony from trial
counsel concerning the failure to call Salzman as a witness. Because Myers has
made no attempt to discount the possibility that trial counsel made a strategic
decision not to call Salzman to testify, he has not satisfied his burden of
establishing deficient performance on this issue. See United States ex rel. Hampton
v. Leibach, 347 F.3d 219 (explaining that unexpected developments at trial may
justify an attorney’s decision not to present evidence promised in opening
statements); Specht v. State, 838 N.E.2d 1081, 1087 (Ind. Ct. App. 2005)
(explaining that “an action or omission that is within the range of reasonable
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attorney behavior can only support a claim of ineffective assistance if that
presumption is overcome by specific evidence as to the performance of the
particular lawyer”), trans. denied. Nor has he established sufficient prejudice to
justify relief on this basis. The jury was presented with ample evidence that the
initial investigation focused on Owings, Sowders-Evans, and Clouse, and that
Myers was not developed as the primary suspect until much later. Under these
facts and circumstances, we cannot conclude that trial counsel’s failure to elicit
testimony from Salzman on this issue had an appreciable impact on the jury.
C.
[29] Next, Myers argues that trial counsel were ineffective for failing to adequately
undermine the State’s theory that Behrman had ridden her bicycle north on
North Maple Grove Road, i.e., in the direction of Myers’s residence, on the
date she disappeared. According to Myers, it was crucial for the defense to
establish that Behrman took a route south of Bloomington that morning
because if she did so, phone records placing Myers at his residence that
morning would have exonerated him.
[30] Myers’s arguments on this issue presume that the only reasonable strategy trial
counsel could have pursued was one that depended heavily on establishing that
Behrman rode south rather than north on the date of her disappearance. But
trial counsel were not limited to presenting a single theory of defense. Indeed,
in a case such as this, based solely on circumstantial evidence, the most
advantageous approach may be to establish reasonable doubt by presenting
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multiple possible alternative theories of the crime that point away from the
accused’s guilt. As the U.S. Supreme Court has explained, “[t]o support a
defense argument that the prosecution has not proved its case it sometimes is
better to try to cast pervasive suspicion of doubt than to strive to prove a
certainty that exonerates.” Harrington v. Richter, 562 U.S. 86, 109 (2011).
[31] At the PCR hearing, when asked what he wanted the jury to believe concerning
Behrman’s bicycle route, Patrick Baker initially stated that he “didn’t want her
going north.” PCR Transcript at 598. He went on to clarify, however, that he
had “two theories, a southern route and a northern route”. Id. Specifically, he
testified as follows:
We wanted the jury to believe that she couldn’t have made it to
[Myers’s] house and back in time for work. So I don’t know if we
differentiated between the southern route and maybe partially of the
northern route but we wanted the jury to believe that she couldn’t have
ridden to his house and back.
Id. at 598-99. Thus, it was not trial counsel’s strategy to eliminate the
possibility that Behrman had ridden north—rather, trial counsel sought to
establish that Behrman would not have followed the north route all the way to
Myers’s residence in light of her schedule that day.
[32] We cannot conclude that trial counsel’s decision to pursue a defense theory that
allowed for the possibility that Behrman had ridden north was unreasonable.
As an initial matter, we note that trial counsel presented evidence supporting
the theory that Behrman had ridden south. Trial counsel elicited testimony that
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Maral Papakhian, a high school classmate of Behrman’s, had reported seeing
Behrman riding her bike on Harrell Road, i.e., the southern route, on the
morning of her disappearance. The jury was also presented with evidence of
Owings’s confession, in which she stated that she and Sowders-Evans had been
passengers in Clouse’s vehicle when he struck Behrman and abducted her on
Harrell Road. Additionally, in both opening statements and closing arguments,
trial counsel argued that the evidence presented supported a conclusion that
Behrman had ridden south.
[33] We also note, however, that trial counsel’s Hollars theory was premised in part
on the fact that a bloodhound had scented Behrman on the northern route near
Hollars’s residence. Thus, presenting a theory of defense that depended on
proving to a certainty that Behrman had ridden south would have undermined
this alternative theory. Moreover, there was other evidence that Behrman had
ridden north. Robert England testified that he saw a cyclist matching
Behrman’s description riding north on Maple Grove Road either at 10:00 a.m.
on the day Behrman disappeared or at 9:00 a.m. the next day. Moreover,
Behrman’s bike was discovered on the north route, less than one mile from
Myers’s residence. Although it has been suggested that Behrman could have
taken the south route, been abducted and subdued there, and her bike dumped
on the north route, the timeline for such a scenario is tight. Behrman logged off
of her computer at 9:32 a.m. and her bike was spotted near Myers’s residence
“before noon.” Trial Transcript at 1226. Additionally, evidence from the
bloodhound tracking search was consistent with Behrman having ridden the
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bike to its final location as opposed to being driven there in a vehicle. Thus,
although it is not impossible for the bike to have been dumped, we cannot
conclude that it was unreasonable for trial counsel to decline to pursue a theory
of defense that was wholly dependent on the jury reaching such a conclusion.
While it might have been helpful to the defense to conclusively eliminate the
possibility that Behrman had ridden north that morning, the evidence simply
did not allow for such certainty.
[34] Moreover, none of the evidence Myers argues should have been used to
impeach the theory that Behrman rode north was particularly strong. For
example, Myers argues that trial counsel should have established that shortly
after Behrman’s disappearance, police investigated routes south and east of
Bloomington. Considering the breadth of the investigation in this case and the
fact that investigators were simultaneously investigating possible routes north of
Bloomington, such evidence was unlikely to impress the jury. Myers also
suggests that evidence should have been presented to the effect that
investigators and Behrman’s family believed “[f]or years” that Behrman had
ridden south. Appellant’s Brief at 33. But the jury was well aware that
investigators primarily pursued Owings’s confession, which placed Behrman on
the south route, until Behrman’s remains were discovered.
[35] Myers also argues that trial counsel should have cross-examined Behrman’s
parents “on their prior belief their daughter would not have ridden north based
on the limited time she had, her riding habits and her habits preparing for work
and leaving the house.” Id. at 33. The PCR court found that declining to
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pressure the Behrmans about the specifics of their daughter’s bike route
reflected a valid trial strategic decision to avoid alienating the jury by upsetting
grieving parents.4 In any event, Behrman’s parents clearly did not know which
direction she had ridden that day, and we cannot conclude that cross-examining
them as to their guesses on the matter would have had a significant impact on
the jury. Finally, Myers argues that trial counsel should have impeached the
testimony of Dr. Norman Houze, a cyclist who conducted a timed ride from the
Behrman residence to the location where Behrman’s bike was discovered, with
evidence that the ride was accomplished with a police escort.5 But Myers has
not directed our attention to any evidence suggesting that the police escort had
an appreciable impact on the speed at which the ride was conducted. For all of
these reasons, we also conclude that Myers has not established the requisite
prejudice.
[36] Myers also argues that trial counsel were ineffective for failing to object to
hearsay testimony discrediting Papakhian’s sighting of Behrman on Harrell
Road on the morning of her disappearance. Hearsay is an out-of-court
statement offered in court to prove the truth of the matter asserted. Boatner v.
State, 934 N.E.2d 184 (Ind. Ct. App. 2010). As a general rule, hearsay is
4
Myers argues that trial counsel was not concerned about alienating the jury because Patrick Baker cross-
examined Behrman’s mother extensively about “whether her murdered daughter might have been pregnant
with a married man’s baby.” Appellant’s Brief at 34. We note, however, that Patrick Baker testified at the
PCR hearing that he believed that evidence concerning a possible pregnancy was crucial. It was not
unreasonable for trial counsel to forego intense cross-examination on other, less important issues in order to
avoid appearing antagonistic.
5
The results of the timed ride suggested that Behrman might have been able to take the northern route and
still make it to work at the SRSC in time for her shift. Trial counsel cross-examined Dr. Houze extensively.
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inadmissible unless the statement falls within one of the established hearsay
exceptions. Yamobi v. State, 672 N.E.2d 1344 (Ind. 1996).
[37] Detective Arvin testified that Papakhian told police she believed she saw
Behrman on the 4700 block of Harrell Road on the morning of Wednesday,
May 31, but that she could not be one hundred percent certain that she had not
seen her on Tuesday. Detective Arvin testified further that when he
interviewed Papakhian, she recalled having an argument with her boyfriend at a
small party the night before the sighting, and she named several other people
who had attended the party. Detective Arvin testified that he interviewed five
people as a result of his interview with Papakhian, and that he ultimately
reported to Detective Lang “that the timeline that [Papakhian] had presented
did not fit.” Trial Transcript at 2203. He testified further that based on his
investigation, he believed that it was more likely that Papakhian had seen
Behrman on Tuesday, the day before her disappearance. Detective Arvin
explained that Papakhian told him that she regularly left her house forty-five
minutes before her 10:20 a.m. class (i.e., at 9:35 a.m.) and Detective Arvin
determined that it would take her only three minutes to drive to the 4700 block
of Harrell Road. Because Behrman had logged off of her computer at 9:32
a.m., and it would take a minimum of fifteen minutes for her to bike from the
Behrman residence to Harrell Road (not including additional time to change
clothes, put on cycling shoes, fill a water bottle, etc.), Detective Arvin believed
that Behrman could not have made it to the 4700 block of Harrell Road in time
for Papakhian to have seen her there on the date of her disappearance.
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[38] Myers argues that Detective Arvin testified to statements made to him by the
other partygoers Papakhian identified, and that a hearsay objection to this
testimony would have been sustained.6 But Myers has not directed our
attention to a single out-of-court statement made by these unnamed individuals
and admitted into evidence through Detective Arvin’s testimony. Instead,
Detective Arvin testified that after interviewing Papakhian and five other
witnesses, he came to the conclusion that Papakhian’s timeline did not fit and
she had probably seen Behrman on Tuesday. When giving a further
explanation of why he reached the conclusion, Detective Arvin referred not to
any statements or information gathered from the partygoers, but to the timeline
he had worked out based on Papakhian’s statements and Behrman’s computer
logoff time. Because Myers has not established that Detective Arvin testified to
any out-of-court statements made by the unnamed witnesses he interviewed,
Myers has not established that trial counsel were ineffective for failing to object
based on hearsay.
D.
[39] Myers also argues that his trial counsel were ineffective for failing to object to
the admission of evidence of a bloodhound tracking search, or alternatively for
failing to impeach the reliability of such evidence. At trial, Porter County
6
Myers makes no argument that counsel should have objected when Detective Arvin testified at length to
out-of-court statements made by Papakhian, and for good reason. Because Papakhian did not testify at trial,
the only way to get evidence of her sighting before the jury was through the testimony of others. Myers
makes no argument that trial counsel were ineffective for failing to call Papakhian as a witness, and
Papakhian did not testify at the PCR hearing.
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Sheriff’s Deputy and canine handler Charles Douthett testified concerning a
search he performed with his bloodhound, Sam. Deputy Douthett testified that
he had been working with Sam for over ten years, and that he and Sam had
attended numerous seminars and trainings and worked homicide investigations
in six states. Deputy Douthett testified further that he and Sam had conducted
numerous real-world tracking searches, including some cases involving tracking
bicyclists. Deputy Douthett went on to describe the process used to present a
bloodhound with a scent and to track that scent.
[40] Deputy Douthett testified further that the FBI contacted him and asked him to
come to Bloomington to conduct a tracking search in the Behrman case. An
exhaustive description of the tracking search is not necessary here. It suffices
for our purposes to note that Deputy Douthett and Sam were taken to a spot on
North Maple Grove Road roughly one-half mile southwest of where Behrman’s
bike had been discovered. Sam tracked Behrman’s scent to the spot the bike
had been found and continued tracking the scent northward briefly before
losing the scent and doubling back to the starting point of the search. At that
point, Deputy Douthett and Sam got into a vehicle and were driven southward
along the path Sam had been following. They stopped and got out of the
vehicle at an intersection a few hundred yards away from Highway 37.
Hollars’s residence is very close to this intersection. Sam was able to pick the
scent back up at that point and she followed it across Highway 37 before
turning south on Kinser Pike.
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[41] Myers argues that evidence of the bloodhound tracking search was
inadmissible, or at the very least subject to impeachment on the basis of its
unreliability. In support of this argument, he cites a line of Indiana Supreme
Court cases supporting the proposition that bloodhound tracking evidence is
too unreliable to be admissible. See Hill v. State, 531 N.E.2d 1382 (Ind. 1989);
Brafford v. State, 516 N.E.2d 45 (Ind. 1987); Ruse v. State, 186 Ind. 237, 115 N.E.
778 (Ind. 1917). The State notes, however, that all of these cases were decided
prior to the adoption of the Indiana Rules of Evidence. In his reply brief, Myers
appears to concede that the line of cases he cited in his appellant’s brief are no
longer controlling. Instead, he argues that the admission of the bloodhound
tracking evidence would now be evaluated under Indiana Evidence Rule
702(b), which provides that “[e]xpert scientific testimony is admissible only if
the court is satisfied that the expert testimony rests upon reliable scientific
principles.” According to Myers, the application of Rule 702(b) would result in
the exclusion of bloodhound tracking evidence because “[a] dog’s accuracy
relies upon too many variant and subjective factors to be considered reliable”.
Reply Brief at 8. Myers also argues that even if bloodhound tracking evidence
might be deemed admissible under the current rules of evidence, trial counsel
were ineffective for failing to impeach the evidence by establishing its
unreliability.
[42] We need not address whether the bloodhound tracking evidence in this case
was admissible or subject to impeachment. “[A]n objection to inadmissible
evidence may be waived as part of reasonable trial strategy, which will not be
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second-guessed by this court.” Nordstrom v. State, 627 N.E.2d 1380, 1385 (Ind.
Ct. App. 1994), trans. denied. Trial counsel may also choose to forego
opportunities to impeach evidence when doing so serves a reasonable strategic
purpose. See Kubsch v. State, 934 N.E.2d 1136 (concluding that counsel’s
decision not to impeach a witness was a matter of trial strategy and did not
amount to ineffective assistance).
[43] At the PCR hearing, Patrick Baker testified that he could not recall whether he
considered objecting to the bloodhound tracking evidence. Likewise, he could
not recall whether he considered consulting with an expert on bloodhounds or
researched the admissibility of such evidence, although he believed he or
someone in his office had probably done some research on the issue. He noted
on cross-examination that the bloodhound evidence put Behrman within a
reasonable proximity of Hollars’s house around the time of her disappearance.
[44] It is Myers’s burden to overcome the presumption that there were strategic
reasons for the decisions trial counsel made. If Myers cannot satisfy that
burden, he cannot establish deficient performance. Patrick Baker’s inability to
recall at the time of the PCR hearing whether he researched bloodhound
evidence or considered objecting to its introduction at trial over six years earlier
is insufficient to overcome the presumption in this case. This is so because we
judge counsel’s performance “by the standard of objective reasonableness, not
his subjective state of mind.” Woodson v. State, 961 N.E.2d 1035, 1041 (Ind. Ct.
App. 2012) (citing Harrington v. Richter, 562 U.S. 86), trans. denied. “Although
courts may not indulge ‘post hoc rationalization’ for counsel’s decisionmaking
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that contradicts the available evidence of counsel’s actions, neither may they
insist counsel confirm every aspect of the strategic basis for his or her actions.”
Harrington v. Richter, 562 U.S. at 109 (internal citation omitted).
[45] Judging trial counsel’s performance by an objective standard of reasonableness,
as we must, we conclude that there were valid strategic reasons for declining to
object to or impeach the bloodhound tracking evidence irrespective of Patrick
Baker’s inability to recall his thoughts on the subject. One of trial counsel’s
tactics throughout trial was to cast suspicion on Hollars, and the bloodhound
tracking evidence supported that strategy because it placed Behrman near
Hollars’s residence. Indeed, trial counsel relied on the bloodhound tracking
evidence and its link to Hollars in both opening statements and closing
arguments. We will not speculate on the ultimate wisdom of trial counsel’s
strategic decisions on this issue. Because Myers has not overcome the
presumption that trial counsel acted competently in declining to object to or
impeach the bloodhound tracking evidence, he has not established ineffective
assistance in this regard.
E.
[46] Next, Myers argues that his trial counsel were ineffective for failing to impeach
Betty Swaffard’s testimony. Swaffard, Myers’s maternal grandmother, testified
to certain statements Myers made to her following Behrman’s disappearance.
Specifically, Swaffard testified that on June 27, 2000, the date Detective
Crussen interviewed Myers’s parents, Myers called Swaffard and asked to
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borrow money. Swaffard told Myers that he would have to come to her house
to pick up the money, and he said he could not come because there were road
blocks up on Maple Grove Road, and he did not want to go out because he was
a suspect in Behrman’s disappearance. Swaffard testified further that in
November 2004, Myers called her and asked her to look after his daughter
because he needed some time alone to think. Swaffard asked what was on his
mind, and Myers said, “Grandma, if you just knew the things that I’ve got on
my mind. . . . [I]f the authorities knew it, I’d be in prison for the rest of my
life.” Trial Transcript at 1833. Myers stated further that his father had known it
and “took it to the grave with him.” Id. Later that evening, when Myers
dropped his daughter off at Swaffard’s house, he had tears in his eyes and said,
“Grandma, I wish I wasn’t a bad person. I wish I hadn’t done these bad
things.” Id. at 1833-34. On cross-examination, trial counsel asked Swaffard
only two questions, both of which were apparently intended to establish that
Swaffard had developed an unusually close relationship with Detective Lang.
First, counsel asked Swaffard whether she knew Detective Lang’s telephone
number, and she responded affirmatively. Second, counsel asked what
Detective Lang’s phone number was, and Swaffard began to answer but was
interrupted by an objection from the State. The trial court sustained the
objection, and trial counsel declined to cross-examine Swaffard further.
[47] On appeal, Myers argues that trial counsel were ineffective for failing to use
recordings of telephone conversations between Myers and Swaffard to impeach
Swaffard’s testimony at trial. We note that in May 2005, with Swaffard’s
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permission, Detective Lang began recording Swaffard’s phone calls with Myers.
Some of these recordings were of telephone calls Myers made to Swaffard from
jail, in which Myers told Swaffard that he had been interviewed concerning
Behrman’s death and denied any involvement or knowledge thereof. At the
PCR hearing, Patrick Baker testified that he had heard the recorded phone calls,
but his strategy with respect to Swaffard was to get her off the witness stand as
quickly as possible. He testified that Swaffard gave very damaging evidence,
that her demeanor and presentation were credible, and that it was extremely
challenging to explain to the jury why a grandmother would falsely implicate
her grandson in a murder.
[48] On appeal, Myers argues that this was not a reasonable trial strategy, and that
trial counsel were required to make a greater effort to impeach Swaffard
precisely because her testimony was damaging and appeared credible. This is
the sort of second-guessing of trial strategy in which we will not engage on
appeal. “It is well settled that the nature and extent of cross-examination is a
matter of strategy delegated to trial counsel.” Waldon v. State, 684 N.E.2d 206,
208 (Ind. Ct. App. 1997), trans. denied. Myers has not established that a strategy
of limiting the jury’s exposure to Swaffard’s testimony and denying her the
opportunity to elaborate further thereon fell outside the wide range of
constitutionally competent assistance.
[49] In any event, Myers has not directed our attention to any particularly
persuasive impeachment evidence contained within the telephone recordings.
Although Myers denied any involvement in or knowledge of what happened to
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Berhman in the phone calls he made to Swaffard from the jail, he did so after
being made aware that he was a suspect in the case. Additionally, he
acknowledged during the conversations that he knew that telephone calls made
from the jail are recorded. In light of these facts, Myers’s denials of
involvement were unlikely to sway the jury, and they do nothing to explain
why Swaffard would falsely implicate Myers. Moreover, in order to impeach
Swaffard with the recordings, trial counsel would have had to make the jury
aware that Myers’s own grandmother had voluntarily agreed to allow Detective
Lang to record her conversations with Myers. The damaging effect of such
evidence would likely outweigh its minimal impeachment value.
[50] Myers also argues that counsel was ineffective for failing to object to what he
calls “religious vouching” for Swaffard’s credibility. Appellant’s Brief at 43.
Specifically, Swaffard was allowed to testify, albeit briefly and without great
detail, concerning her religious involvement, including her affiliation with a
specific church, her studies at a Bible college, and religious writings she has
authored. According, to Myers, this testimony “served no purpose other than
to portray [Swaffard] as a God-fearing woman who wouldn’t lie.” Id. at 43.
Myers argues that the error was compounded when the State made reference to
Swaffard’s faith in its closing argument, stating that she came forward after
“great prayer and . . . thought” and that “by the grace of God she came forward
and told you the truth[.]” Trial Transcript at 1247, 2827.
[51] At trial, Myers’s counsel objected to the State’s line of questioning regarding
Swaffard’s religious involvement on the basis of relevance. The trial court
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overruled the objection and explained that it would allow “some introductory
questions just so the jury knows who the witness is.” Id. at 1813. On appeal,
Myers argues that trial counsel’s objection was insufficient because “he did not
provide a specific rule.” Appellant’s Brief at 43. We note, however, that Myers
has also failed to cite any specific rule of evidence in his appellant’s brief in
support of this assertion that Swaffard’s testimony amounted to impermissible
“religious vouching.” Instead, he argues that “[v]ouching testimony invades
the province of the jury”, and he cites two cases, both of which address issues
concerning adult witnesses vouching for the truthfulness of victims in child
molesting cases. Id. The State, however, has directed our attention to Indiana
Evidence Rule 610, which provides that “[e]vidence of a witness’s religious
beliefs or opinions is not admissible to attack or support the witness’s
credibility.”
[52] The testimony Myers argues amounted to impermissible religious vouching was
part of general background information Swaffard was asked to give about her
life. She testified that she had lived in her home for forty-five years, that she
was homemaker, that her husband was deceased, and that her hobbies included
reading, writing, and gardening. She testified further that she had completed
some studies at a Bible college and authored a children’s Bible school
curriculum. The State then asked Swaffard whether she attended a specific
church, and trial counsel objected to the line of questioning based on relevance.
The trial court overruled the objection, and Swaffard went on to testify that she
had attended Maple Grove Christian Church for nine years, that she wrote
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poetry and ladies’ devotionals, and she gave more background about her
children and family.
[53] We cannot conclude that Swaffard’s testimony concerning her religious
involvement constitutes vouching, religious or otherwise. Although the
relevance of Swaffard’s religious involvement is certainly questionable (hence
trial counsel’s objection on that basis), her testimony contained no express or
implied assertion that she was more or less likely to tell the truth due to her
religious beliefs. Thus, Myers has not established a reasonable probability that
an objection on this basis would have been sustained. See Passwater v. State, 989
N.E.2d 766 (Ind. 2013) (explaining that to prevail on a claim of ineffectiveness
based on failure to object, the defendant must establish a reasonable probability
that the objection would have been sustained). Moreover, Myers has not
established that he was prejudiced by Swaffard’s testimony in this regard.
Swaffard’s testimony concerning her involvement in church and religious
activities was short and not greatly detailed. More importantly, Swaffard
testified that Myers was her grandson and that she loved him and had been
close with him since he was a small child. In light of the evidence concerning
Swaffard’s relationship with Myers and the absence of any motive to lie, we are
unconvinced that testimony concerning her religious involvement had a
significant impact on the jury’s assessment of her credibility.
[54] To the extent Myers argues that the prosecuting attorney’s remarks in closing
argument crossed the line into impermissible religious vouching, we note that
the State’s references to Swaffard’s religion were brief and vague at best. The
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State’s use of the common phrase “by the grace of God” conveyed nothing
about Swaffard’s religious beliefs, nor did its statement that Swaffard was “the
last of a dying breed. A generation of people where truth mattered more than
anything else, where telling the truth was an oath that was taken seriously.”
Trial Transcript at 2827, 2754-55. If anything, these statements suggested that
Swaffard was more likely to tell the truth because of her age, not because her
religious convictions compelled her to do so.
[55] The State’s remark that Swaffard came forward “with great prayer” is arguably
a more direct reference to her religion, but when viewed in context, it is
apparent that the statement did not imply that Swaffard was credible because of
her religious beliefs. Id. at 2747. The statement was made as part of the
following argument:
And stop for a moment to think how much doubt . . . how much
reasonable doubt [Swaffard] had overcome before she came forward
with what she knew. She knew what it would do to the family. You
saw what Jodie, Sam, and Luke did. They circled the wagons. But
she told you one thing, [Swaffard] did, didn’t she? That her
conscience wouldn’t let her sleep unless she came forward. Think how
hard it would be for any grandmother to do. You know, as you get
older you start thinking about your family legacy. You start thinking
about what’s important in life and with . . . with many tears and with
great . . . with great prayer and . . . and thought, [Swaffard] did come
forward. This is a case about relationships.
Id. Thus, it is apparent that the State was arguing that it was very difficult for
Swaffard to come forward due to the impact her cooperation with the
investigation would have on her familial relationships, but that her conscience
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nevertheless compelled her to do so. In other words, the State argued that
Swaffard was credible because she came forward with reservations and at great
personal expense. The brief reference to prayer did nothing to imply that
Swaffard was more credible because of her religious beliefs.
[56] Moreover, Myers did not question trial counsel at the PCR hearing with respect
to his failure to object to these statements. Our Supreme Court has held that,
because counsel is presumed to be competent, “an action or omission that is
within the range of reasonable attorney behavior can only support a claim of
ineffective assistance if that presumption is overcome by specific evidence as to
the performance of the particular lawyer.” Morgan v. State, 755 N.E.2d 1070,
1074 (Ind. 2001). Under the circumstances presented here, trial counsel could
have concluded that objecting to the State’s vague, passing references to
Swaffard’s religious convictions would only draw more attention to them, and
Myers has presented no evidence to the contrary. See Smith v. State, 822 N.E.2d
193 (Ind. Ct. App. 2005) (noting that it is reasonable strategy for counsel not to
object to certain evidence to avoid drawing unfavorable attention to it). In any
event, we are unconvinced that the complained-of statements had an impact on
the jury’s verdict. For these reasons, Myers has established neither deficient
performance nor prejudice stemming from counsel’s failure to object to so-
called religious vouching.
F.
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[57] Myers next argues that trial counsel were ineffective for failing to adequately
impeach Carly Goodman’s testimony. Goodman testified that one night in
March 2000, Myers, her then-boyfriend, took her for a long car ride through
Gosport to a wooded area, where he parked in a “clearance” surrounded by a
wooded area. Trial Transcript at 1899. Goodman testified that after Myers
stopped the car, the couple argued and that she was afraid and wanted to go
home. Goodman testified further that in February of 2006, she went for a drive
with Detective Lang to identify places that Myers had taken her during their
relationship. She recognized one place as the wooded area where she and
Myers had argued in March 2000. This was the same area where Behrman’s
remains were discovered in 2003. Myers’s trial counsel conducted a relatively
short cross-examination, in which he asked a number of questions designed to
create doubt as to the whether the site was sufficiently distinctive-looking for
Goodman to reliably differentiate it from other nearby wooded areas. On
appeal, Myers argues that trial counsel should have impeached Goodman with
her prior, allegedly inconsistent statements about the site.
[58] At the PCR hearing, Patrick Baker testified that his strategy with respect to
Goodman’s cross-examination was similar to his strategy with Swaffard—he
sought to get Goodman off the witness stand as quickly as possible. He testified
further that Goodman “had a lot of information, 404(b) evidence, that regarded
domestic battery situations with [Myers]. Regarded her being held against her
will in a trailer, I think, for three or four days without any clothes. I think
protective orders that she had filed against [Myers.]” PCR Transcript at 581. He
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explained that this information had been ruled inadmissible, but he still had
concerns about Goodman bringing it up. Moreover, when asked whether he
had planned to impeach Goodman with prior inconsistent statements, counsel
responded that he did not recall specifically, but that any strategies he had
devised changed during Goodman’s testimony because she displayed a palpable
demeanor of fear toward Myers.
[59] Myers dismisses trial counsel’s explanation of his strategy as unreasonable. He
asserts that counsel could have cross-examined Goodman concerning her prior
statements made to Detective Lang at the time she identified the site without
eliciting or opening the door to prejudicial and inadmissible testimony.
Further, Myers argues that fearful witnesses are “a reality of criminal defense
for which counsel should be prepared.”7 Appellant’s Brief at 45. We will not
engage in this sort of second-guessing of trial counsel’s strategic decisions
concerning the nature and scope of cross-examination. Myers has not
established that his trial counsel’s strategy was unreasonable; to the contrary, it
was quite reasonable for trial counsel to minimize the jury’s exposure to
Goodman’s fearful demeanor and avoid any inadvertent mention of highly
prejudicial and inadmissible evidence by limiting the scope and duration of his
cross-examination, while simultaneously eliciting testimony casting doubt on
the reliability of her identification of the area.
7
Myers does not, however, make any attempt to explain what such “preparation” would entail or propose an
alternative strategy for dealing with such witnesses. It appears to us that one obvious strategy could be to
limit cross-examination of such witnesses, as trial counsel did in this case.
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[60] Moreover, Myers has again failed to establish the requisite prejudice. Much of
the impeachment evidence Myers argues should have been used during
Goodman’s cross-examination was explored through Detective Lang’s
testimony. For example, Myers argues that trial counsel should have
impeached Goodman with Detective Lang’s testimony during the grand jury
proceedings that Goodman recognized the area due to a humming sound the
tires made as they drove across a metal bridge. The bridge, however, was not
installed until 2001, well after Goodman’s March 2000 car ride with Myers.
[61] Contrary to Myers’s assertion on appeal, Detective Lang’s grand jury testimony
did not establish that Goodman recognized the area due to the sound of the
tires on the bridge. Although Detective Lang mentioned the humming sound
the tires made, he did not state that the sound is what triggered Goodman’s
memory. Instead, Detective Lang described the bridge and the humming
sound, and said it was at that point that Goodman stopped him midsentence
and said that that the area looked more familiar to her than any of the other
places they had been. Detective Lang later clarified that Goodman “did not
indicate on the bridge. That’s just where she interrupted my sentence and said,
this place looks more familiar. She didn’t say the bridge was more familiar, I
remember that sound. She just said this place looks more familiar than any
place we’ve been up to that point.” Grand Jury Transcript at 6104. Indeed, in
her own grand jury testimony, Goodman specifically stated that it was not the
bridge that caused the area to be recognizable to her. Instead, she stated that
she recognized a nearby creek, woods, steep hills with rocks on them, and an
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area she described as a “cutoff”, which was not a road but provided enough
clearance to allow a person to drive a short distance into the woods. Id. at
4080.
[62] Moreover, trial counsel did, in fact, raise the issue of Goodman’s recognition of
the bridge with Detective Lang. Specifically, trial counsel elicited testimony
from Detective Lang concerning the date the bridge was constructed, and he
asked Detective Lang whether it was true that Goodman recognized the bridge.
Detective Lang responded that Goodman did not recognize the bridge, and
instead recognized the area. Detective Lang’s trial testimony is supported by
both his and Goodman’s grand jury testimony. For these reasons, it is apparent
that any further attempt to impeach Goodman or Lang using their grand jury
testimony on this point would have been unsuccessful.8
[63] Myers also makes much of the fact that Goodman told Detective Lang that the
wooded area where Behrman’s remains were found was similar to, or looked
like, the place Myers took her in March 2000 instead of positively identifying
the area. At trial, however, when shown a picture of the area in which
Behrman’s remains were discovered, she responded “[t]hat’s where he took
8
Myers also argues that trial should have used Detective Lang’s report to impeach his testimony that
Goodman recognized a clearing in the woods. According to Myers, “[Detective] Lang did not document
Goodman’s recognition of a cut-away in his report prepared contemporaneous with the trip.” Appellant’s Brief
at 11. Myers has not, however, directed our attention to a copy of Detective Lang’s report appearing in the
record. We will not scour the extremely voluminous record in this case in search of support for Myers’s
contentions on appeal. Because Myers has not adequately supported this claim with citation to the record, it
is waived. See Smith v. State, 822 N.E.2d 193 (Ind. Ct. App. 2005). Waiver notwithstanding, at trial,
Detective Lang and Goodman both testified that Goodman recognized the clearing in the woods. It is
unlikely that the possibility that Detective Lang omitted this fact in his report would have significantly
undermined their testimonies in this regard.
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me.” Trial Transcript at 1900. Our review of transcript reveals that trial counsel
did a more than adequate job of calling into question the reliability of
Goodman’s identification of the area. On cross-examination, trial counsel
elicited the following testimony:
Q. . . . How do you differentiate that picture from any other picture
that’d be taken in the woods?
A. Because of the way the clearance is.
Q. How do you rec . . . differentiate that clearance from any other
clearance?
A. It’s . . . it’s just what looks familiar to me.
Q. But you don’t know . . . that could be anywhere, correct?
A. Yes.
Id. at 1906. Moreover, Detective Lang testified that Goodman told him that the
area “look[ed] more familiar to [her] that anyplace we’ve been.” Id. at 2413.
Because the jury was presented with testimony that Goodman told Detective
Lang that the area looked familiar instead of positively identifying the area, as
well as with Goodman’s own testimony that the area just “look[ed] familiar”,
id., counsel did not perform deficiently by failing to use Detective Lang’s grand
jury testimony to establish those facts.
[64] Myers also argues that his trial counsel were ineffective for failing to object to
Goodman’s description of Myers’s behavior during the March 2000 car trip,
which he calls “prejudicial 404(b) testimony”. Appellant’s Brief at 46. Myers
does not, however, cite the applicable language of Indiana Evidence Rule
404(b) or make any attempt to apply it. Accordingly, this argument is waived
for lack of cogency. See Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App.
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2005) (explaining that “[a] party waives an issue where the party fails to
develop a cogent argument or provide adequate citation to authority and
portions of the record”), trans. denied.
[65] To the extent Myers has made a coherent argument on this point, it essentially
boils down to an assertion that, in light of other testimony suggesting that
Behrman may have been raped, Goodman’s testimony left the jury with the
impression that Myers had raped her during the March 2000 car trip. In
support of this argument, Myers directs our attention to Goodman’s testimony
that during the trip, she did not kiss Myers, she wanted to go home, and that
she was afraid, as well as her testimony that Myers refused to take her home,
and that they both got out of the car and stayed at the location for thirty to
forty-five minutes before Myers finally took her home. Myers’s argument on
this point is unconvincing. Goodman told the jury what happened once they
reached the clearing in the woods—she and Myers argued and Myers refused to
take her home, which scared her. Nothing about Goodman’s testimony
implied that she had been raped.
[66] In any event, it is apparent that the testimony was admitted to show that Myers
was familiar with the area in which Behrman’s remains were discovered and to
explain why Goodman was still able to remember the location so vividly several
years later, and not to establish that Myers had a propensity to commit murder
or any other crime. Thus, the testimony did not violate Evidence Rule 404(b),
and Myers points to no danger of unfair prejudice aside from his unpersuasive
argument that the testimony left the jury with the impression that Goodman
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had been raped. See Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct. App. 2010)
(explaining that “[i]n assessing the admissibility of 404(b) evidence a trial court
must (1) determine that the evidence of other crimes, wrongs, or acts is relevant
to a matter at issue other than the defendant’s propensity to commit the charged
act and (2) balance the probative value of the evidence against its prejudicial
effect pursuant to Indiana Evidence Rule 403”), trans. denied. Thus, Myers has
not established a reasonable probability that an objection on the basis of
Evidence Rule 404(b) would have been sustained, and he is consequently
unable to show that counsel performed deficiently by failing to object on that
basis.
G.
[67] Next, Myers argues that trial counsel were ineffective for failing to object to
testimony suggesting that Behrman had been raped. Specifically, forensic
pathologist Dr. Stephen Radentz testified that the condition in which
Berhman’s remains were discovered was consistent with a classic rape-homicide
scenario. Additionally, Dr. Radentz responded affirmatively to a jury question
asking whether he believed Berhman had been raped. During follow-up cross-
examination by Myers’s trial counsel, Dr. Radentz admitted that there was no
physical evidence that a rape had occurred. When questioned further by the
State, Dr. Radentz testified that, based on his training and experience, he
nevertheless believed that Berhman had been raped because the location and
condition of the remains were consistent with a rape-homicide. The State
referenced Dr. Radentz’s rape testimony in closing arguments.
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[68] On direct appeal, Myers argued that Dr. Radentz’s references to rape amounted
to fundamental error. Another panel of this court concluded that the admission
of Dr. Radentz’s rape testimony violated Evidence Rule 403 because Myers was
not charged with rape and there was no physical evidence to support the rape
determination. Myers v. State, 887 N.E.2d 170. The court went on, however, to
conclude that the admission of the evidence did not amount to fundamental
error. Id. The court reasoned as follows:
We conclude that any error in the admission of Dr. Radentz’s rape
testimony did not substantially influence the outcome of the trial. The
question of rape was peripheral to the murder charge and received
relatively minimal attention at trial. To the extent the possibility of
rape was at issue, defense counsel thoroughly cross-examined Dr.
Radentz, eliciting his testimony that there was no physical evidence
that Behrman had been raped and that the only basis upon which he
opined that a rape had occurred was his training and experience with
respect to circumstances surrounding the general disposal of human
remains. Furthermore, the trial court excluded all evidence tending to
link Myers to inappropriate sexual conduct. The references to rape,
therefore, did nothing to implicate Myers as the perpetrator of this
charged crime, which was the central issue at trial.
Id. at 187.
[69] Myers is correct that this court’s conclusion on direct appeal that the admission
of Dr. Radentz’s rape testimony did not amount to fundamental error does not
necessarily preclude a finding that counsel’s failure to object thereto amounted
to ineffective assistance. See Benefield v. State, 945 N.E.2d 791 (Ind. Ct. App.
2011). To establish fundamental error, a defendant must show that the alleged
error was so prejudicial as to make a fair trial impossible. Ryan v. State, 9
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N.E.3d 663 (Ind. 2014). To satisfy the prejudice element of an ineffective
assistance of counsel claim, on the other hand, a defendant must establish that
there is a reasonable probability that the result of the proceeding would have
been different but for counsel’s unprofessional errors. Massey v. State, 955
N.E.2d 247 (Ind. Ct. App. 2011). Thus, this court has noted “that there is a
subtle distinction between the fundamental error and ineffective assistance
prejudice standards.” Benefield v. State, 945 N.E.2d at 803. Although the
fundamental error standard “presents a higher bar”, “the two standards may
frequently lead to the same result”. Id. at 804, 803.
[70] This is one such case. For the same reasons this court on direct appeal
concluded no fundamental error occurred, we also conclude that Myers has not
established prejudice sufficient to warrant a finding of ineffective assistance of
counsel. We agree with the panel’s conclusion that Dr. Radentz’s rape
testimony did not substantially influence the outcome of the trial. Accordingly,
Myers has not established a reasonable probability that the outcome of the trial
would have been different but for counsel’s failure to object.
H.
[71] Next, Myers argues that his trial counsel was ineffective for failing to object to
what he calls irrelevant and highly prejudicial gun evidence. Specifically,
Myers points to the testimony of Billy Dodd, Myers’s neighbor at the time of
Behrman’s disappearance, that a number of rifles and shotguns were kept in a
barn near Myers’s trailer. Additionally, Debbie Bell, Myers’s aunt, testified that
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Myers sold her husband a shotgun at Myers’s father’s funeral in December
2000, several months after Behrman’s disappearance. Detective Lang testified
that he retrieved that gun from Bell. Although the record reveals that this gun,
as well as several others that Myers sold or distributed to relatives, had been
stolen from the barn near Myers’s trailer, the jury was not made aware of that
fact and evidence of Myers’s resulting conviction for receiving stolen property
was excluded.
[72] “Evidence that the defendant had access to a weapon of the type used in the
crime is relevant to a matter at issue other than the defendant’s propensity to
commit the charged act.” Rogers v. State, 897 N.E.2d 955, 960 (Ind. Ct. App.
2008), trans. denied. On the other hand, “[e]vidence of weapons possessed by a
defendant but not used in the crime for which the defendant is charged should
generally not be introduced because the evidence is irrelevant and highly
prejudicial.” Oldham v. State, 779 N.E.2d 1162, 1174 (Ind. Ct. App. 2002). On
appeal, Myers argues that trial counsel should have objected to all evidence
relating to the guns from the barn on the basis of relevance because Detective
Lang’s grand jury testimony established that they were not stolen until
November 2000, well after Behrman’s disappearance, and therefore could not
have been the murder weapon.9 But Detective Lang’s testimony was hardly
9
Citing the same portion of the grand jury transcript, Myers also claims that the State acknowledged during
the grand jury proceedings that the murder weapon was not among the guns taken from the barn. The
transcript contains no such concession, and even if it did, Myers has not directed our attention to any
authority or made any argument remotely supporting the proposition that the State would be somehow
bound by a statement it made in the midst of an ongoing grand jury investigation.
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conclusive on this point. Detective Lang testified as follows before the grand
jury:
I talked to Mr. Maher, [the owner of the barn], the burglary he
reported it November 2000, which would have been after the death
obviously of [Behrman]. I asked him if it could be possible that he
would not have known between May and November when he reported
it that any of those weapons were missing? In his opinion, he said no.
I don’t know. You know I mean he . . . if they were all missing, I’m
sure he’s correct. If he took one, you know, it could have been out and
he would not [have] noticed it in my opinion. But, he said that the air
conditioner was removed and that was what tipped him off that
something was wrong and then he found the guns were gone, so. He
stated that he made trips to the barn on several occasions enough
between May and November that he would have known somewhere in
between that time that they would have been gone.
Grand Jury Transcript at 5483-84.
[73] The post-conviction court found testimony concerning the guns relevant
because they (or at least one of them) could have been taken during a previous,
undiscovered entry. We agree. Unlike in Oldham v. State, here there was no
conclusive scientific proof that the weapons at issue were not used in the crime.
The fact that the owner of the barn believed that he would have noticed if the
guns were stolen prior to Behrman’s death goes to the weight to be attributed to
the evidence, not its admissibility.10 Thus, Myers has not established that the
gun testimony was irrelevant.
10
The owner of the barn did not testify at the PCR hearing.
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[74] Myers has also failed to establish prejudice arising from the admission of the
gun evidence in this case. There was other evidence presented at trial to
establish that Myers had access to shotguns like the one used to kill Behrman.
Samuel Myers, Myers’s brother, testified that he owned a twelve-gauge
shotgun, which he kept at his parents’ house. Samuel testified further that he
noticed that his shotgun was missing around August of 2000 and that he was
never able to locate the weapon. Myers’s other brother, Lucas Myers, also
testified that Myers had access to shotguns at their parents’ house, and Richard
Swinney, Myers’s cousin by marriage, testified that Myers told him that he
hunted with a twelve-gauge shotgun. Accordingly, additional evidence to the
effect that Myers had access to and possession of such weapons was unlikely to
have had a significant impact on the outcome of the trial. Moreover, evidence
was presented that many people in the community possessed similar weapons
for hunting purposes and that Myers was himself a hunter. Thus, Myers’s
possession of such weapons, standing alone, was unlikely to be viewed by the
jury as indicative of dangerousness or criminal activity. For all of these
reasons, Myers has not established that his trial counsel were ineffective for
failing to object to testimony that guns were stored in a barn near Myers’s
trailer and that Myers sold a shotgun to his uncle.
I.
[75] Myers next argues that trial counsel were ineffective for failing to object to the
testimony of jailhouse informant John Roell. As we have already noted, “in
order to prevail on a claim of ineffective assistance due to the failure to object,
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the defendant must show a reasonable probability that the objection would have
been sustained if made.” Passwater v. State, 989 N.E.2d at 773. Myers has not
satisfied this burden.
[76] Roell testified at trial that he had been Myers’s cellmate in the Monroe County
Jail in May 2005. He testified further that Myers told him he was waiting to be
questioned by the Indiana State Police concerning Behrman’s bicycle.
According to Roell, Myers appeared nervous and angry, and at one point stated
“if she wouldn’t have said anything, none of this probably would have
happened.” Trial Transcript at 2270-71. Roell understood Myers to be referring
to Behrman when he made this statement, and Roell testified further that Myers
referred to Behrman as a bitch.
[77] Myers contends that counsel should have objected to Roell’s testimony
pursuant to Indiana Evidence Rule 403. This rule provides, in pertinent part,
that relevant evidence may be excluded “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice[.]” Ind. Evid. R. 403. “All
evidence that is relevant to a criminal prosecution is inherently prejudicial; thus
proper inquiry under Evidence Rule 403 boils down to a balance of the
probative value of the proffered evidence against the likely unfair prejudicial
impact of that evidence.” Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct. App.
2014), trans. denied. “When determining the likely unfair prejudicial impact,
courts will look for the dangers that the jury will (1) substantially overestimate
the value of the evidence or (2) that the evidence will arouse or inflame the
passions or sympathies of the jury.” Duvall v. State, 978 N.E.2d 417, 428 (Ind.
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Ct. App. 2012) (quoting Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002)), trans.
denied.
[78] The crux of Myers’s argument is that the probative value of Roell’s testimony
was low because he was not a credible witness due to inconsistencies among his
initial statement to police, his deposition testimony, and his trial testimony.
But it was for the trier of fact, not the trial court, to judge Roell’s credibility.
Ultimately, Myers’s argument in this regard goes to the weight to be afforded to
Roell’s testimony, not its admissibility. See Embrey v. State, 989 N.E.2d 1260,
1268 (Ind. Ct. App. 2013) (“[i]nconsistencies in witness testimony go to the
weight and credibility of the testimony, the resolution of which is within the
province of the trier of fact” (internal quotation omitted)). Roell’s testimony, if
credited by the trier of fact, was highly probative of Myers’s guilt.
[79] Myers also argues that the admission of Roell’s testimony posed a significant
danger of unfair prejudice because, in order to fully impeach Roell, Myers
would have had to use Roell’s prior statement to police, which contained
information more damaging to Myers’s defense than Roell’s trial testimony.11
“Unfair prejudice addresses the way in which the jury is expected to respond to
the evidence; it looks to the capacity of the evidence to persuade by illegitimate
means, or the tendency of the evidence to suggest decision on an improper
11
In support of this assertion, Myers cites only the deposition of Detective Cody Forston of the Bloomington
Police Department. In the deposition, Detective Forston recounted Roell’s statement to him, noting
specifically that Roell told him that Myers had stated that Behrman had been sexually assaulted and that “if
the dumb bitch would have done what [he] had told her, she wouldn’t be dead now.” PCR Exhibit 239, p. 14.
Roell did not make these statements in his deposition or trial testimony.
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basis....” Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999) (internal quotation
marks omitted).
[80] Nothing in Roell’s testimony was likely to prompt the jury to convict Myers on
an improper basis. Myers has cited no relevant authority supporting the
proposition that evidence may be considered unfairly prejudicial because it
forces counsel make difficult strategic decisions with respect to its
impeachment. We decline to develop this argument on his behalf. Because
Myers has not satisfied his burden of establishing that an objection to Roell’s
testimony on the basis of Evidence Rule 403 would have been sustained, he has
consequently failed to establish deficient performance and resulting prejudice.
J.
[81] Next, Myers argues that his trial counsel were ineffective for failing to present
all available evidence tending to establish the guilt of Owings, Sowders-Evans,
and Clouse, and for failing to investigate and discover additional evidence to
that effect. This argument is nothing more than a request to substitute Myers’s
PCR counsel’s strategic judgment, informed by hindsight, for that of Myers’s
trial counsel, which we will not do.
[82] In 2002, Owings confessed to the police that she, Sowders-Evans, and Clouse
had killed Behrman. In the story Owings gave police, she and Sowders-Evans
were riding around with Clouse in his pickup truck and using drugs when
Clouse struck a girl riding a bike on Harrell Road. Clouse stopped and loaded
the injured and incapacitated girl into the back of the truck and wrapped her in
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plastic secured with bungee cords before placing the bicycle on top of her.
Owings went on to state that Clouse then drove them all to Salt Creek, where
the three of them took turns stabbing the girl in the chest before Clouse and
Sowders-Evans pushed the body into the water. Neither Sowders-Evans nor
Clouse ever confessed to the police, and Owings recanted her confession after
Behrman’s remains were discovered in Morgan County.
[83] The State called Owings as a witness at Myers’s trial. Owings testified that
when she was questioned by Detective Lang in April 2003, she denied any
knowledge of Behrman’s disappearance. She testified further that she had
previously lied about her involvement because she was facing a potential eighty-
six-year sentence for various unrelated felonies, and her attorney had urged her
to come forward with anything she knew about the case in an attempt to curry
favor with the prosecution. Owings testified that she had named Clouse and
Sowders-Evans because “[f]rom the very first time I was questioned, those were
the two names that I was supposedly to be with [sic] or around at the time of
the said incident. They thought that all three of us were together.” Trial
Transcript at 2094. She also testified that parts of her testimony were based on
places she had been with Sowders-Evans in the past. Owings testified further
that she had told police that the body was wrapped in plastic to explain why she
was unable to identify the type of clothing Behrman had been wearing and that
she said they had disposed of the body in Salt Creek “[b]ecause there’s so much
stuff in there . . . I figured . . .they couldn’t even dive in it . . . . I knew they
wouldn’t find her[.]” Id. at 2098. Owings stated that she recanted her
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confession after Behrman’s remains were discovered because she believed that
scientific evidence would exclude her.
[84] Additionally, the State introduced into evidence a letter Owings received from
her attorney prior to her confession. In the letter, Owings’s attorney painted an
exceptionally dire picture of Owings’s prospects. Specifically, he wrote that
“we might be talking about you being locked up until just about everyone you
know has died of old age.” PCR Exhibit 301. Her attorney went on to write
that he had heard that Owings might know something about the Behrman case,
and told her “[f]or the sake of your children, your family, and your own life, if
there is anything you can tell these people the time is NOW.” Id. He added
that he had gotten “the distinct impression you might not be punished for
anything to do with the Behrman case, and might get considerably better
treatment in these other matters, if you can help solve this.” Id. He also wrote
that Sowders-Evans, who was apparently also incarcerated, was trying to get
out of jail, and that if Sowders-Evans talked first, Owings would be “sunk.” Id.
[85] Myers argues that trial counsel were ineffective for failing to present certain
testimony and witnesses supporting the theory that Owings, Sowders-Evans,
and Clouse murdered Behrman. Trial counsel Hugh Baker, however, testified
that the defense team made a strategic decision not to pursue Owings’s
confession as its primary theory of defense. Specifically, he testified as follows:
. . . [W]e felt that trying to present to a jury and convince a jury what
the Federal Bureau of Investigations, the Bloomington Police
Department, and the Indiana State Police had concluded was false was
not a good strategy, that is the Owings’ confession. She’d recanted
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this confession. And they hadn’t found Jill Behrman in the . . . in Salt
Creek. Rather, she was found . . . her remains were found in Morgan
County and she . . . hadn’t died from drowning but she’d died from
99.9 percent certainty of being shot.
PCR Transcript at 840. For these reasons, a decision not to pursue the Owings
theory would clearly reflect a reasonable strategic judgment. Myers, however,
asserts that trial counsel did, in fact, pursue the Owings theory at trial, and it
was therefore deficient performance not to present more evidence to support it.
[86] The record reveals that trial counsel pursued the Owings theory to some extent.
Hugh Baker elicited testimony from Owings on cross-examination that she had
discussed Behrman’s disappearance with several acquaintances and made
incriminating statements to at least one of them. He also elicited testimony
from Owings concerning the substance of her confession to police, and the fact
that she had first been interviewed in connection with the Behrman case in June
of 2000. Trial counsel also touched on the Owings theory with other witnesses
throughout trial. Trial counsel elicited testimony from Dr. Radentz that not all
of Behrman’s bones were recovered, and that it was possible (though unlikely)
for her to have been stabbed without leaving marks on her skeletal remains.
Trial counsel also elicited testimony from Detective Lang and FBI Agent Gary
Dunn that the FBI had drained part of Salt Creek looking for Behrman’s
remains, a task which took several weeks. A search of the drained creek yielded
a retractable knife, a bungee cord, and two pieces of plastic sheeting, which
were consistent with items Owings mentioned in her confession. Trial counsel
also elicited testimony from Agent Dunn that he had received a tip that the
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body had been moved and presented evidence that Papakhian had reported
seeing Behrman on Harrell Road on the morning of her disappearance. In
closing arguments, Patrick Baker told the jury that there were two theories
leading away from Myers’s guilt and toward that of others—the Owings theory
and the Hollars theory.
[87] Essentially, Myers argues that trial counsel was obligated to take an all-or-
nothing approach to the Owings theory—either forego it entirely or present all
evidence supporting it. We are unpersuaded by this argument. It is noteworthy
that it was the State who first informed the jury of Owings and her recanted
confession in its opening statement. The State did so in an effort to explain the
delay in Myers’s development as the primary suspect, and presumably to get
ahead of any attempt by the defense to cast suspicion on Owings and her
alleged accomplices. Likewise, it was the State who called Owings to testify at
trial. Under these circumstances, trial counsel did not act unreasonably by
making a strategic decision to attempt to present just enough evidence to keep
the possibility of Owings’s involvement alive in the minds of the jurors, without
making the Owings theory the crux of Myers’s defense. Indeed, it appears to us
that trial counsel’s decision to pursue the Owings theory to only a limited extent
was actually quite shrewd because it prevented the jury from being exposed to
all of the many conflicting versions of the story Owings, Sowders-Evans, and
Clouse allegedly told.12 This information might have resulted not only in the
12
Versions of the story were told in which Behrman was struck by a pickup truck, a car, and an SUV. Clouse
allegedly told a cellmate that Behrman’s body was wrapped in black plastic, while Owings had told the police
the plastic was off-white. Some versions of the story varied wildly from Owings’s confession to police. For
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elimination in the jurors’ minds of the possibility that Owings’s confession was
true, but also in trial counsel’s loss of credibility with the jury. As the State
argues in its brief, “the best counsel could hope for was to keep Owings on the
delicate, razor-thin edge of jurors’ credibility assessments. That strategy would
have been ruined if counsel had pursued the over-zealous course of action
advocated by Myers in this proceeding.” Appellee’s Brief at 50. Accordingly,
Myers has not established that trial counsel performed deficiently in this
regard.13
[88] We also conclude that Myers was not prejudiced by trial counsel’s decision not
to present additional evidence supporting the Owings theory. Myers makes no
argument that counsel failed to present any physical evidence—rather, he
claims that counsel should have presented testimony concerning incriminating
statements Owings, Clouse, and Sowders-Evans made to others, as well as
testimony corroborating parts of Owings’s confession and evidence that
Sowders-Evans fled the state during the investigation. 14 But the jury was aware
example, both Owings and Sowders-Evans allegedly told others that Behrman’s body had been
dismembered, and more than one version of the story was told in which Behrman was kept in the trunk of a
car for days before being killed. Additionally, Sowders-Evans and Owings both allegedly told stories of
killing Behrman that involved a completely different cast of characters than that featured in Owings’s
confession to the police. Owings allegedly gave one account of Behrman’s abduction and murder that
included a brutal rape.
13
To the extent Myers argues that trial counsel failed to investigate and discover additional evidence
supporting the Owings theory, we conclude that the limitations on the investigation were the result of trial
counsel’s reasonable strategic decision to limit reliance on the Owings theory. See Strickland v. Washington,
466 U.S. 668.
14
Myers also argues that trial counsel should have presented evidence that Owings, Clouse, and Sowders-
Evans gave false or shaky alibis. We note that Myers has not directed our attention to any evidence that
Sowders-Evans ever provided an alibi. Moreover, Myers has not directed our attention to any portion of the
record indicating that the jury was presented with evidence that any of the three had ever provided an alibi.
Thus, there was no need for counsel to impeach those alleged alibis.
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of the most powerful evidence against Owings—her own confession to police.
The jury was also aware that prior to the discovery of Behrman’s remains,
police put enough stock into Owings’s confession to go to the extreme effort of
draining part of Salt Creek, and that some corroborating physical evidence was
discovered as a result. Additionally, trial counsel presented evidence that
Papakhian had seen Behrman on Harrell Road on the date of her
disappearance. Moreover, much of the testimony Myers argues trial counsel
should have introduced might have been inadmissible,15 and much of the
evidence Myers argues corroborated Owings’s confession was shaky and could
easily be explained away by Owings’s testimony that she based parts of her
confession on things that had actually happened.16
[89] In any event, even if trial counsel had presented a parade of credible witnesses
to testify that Owings, Clouse, and/or Sowders-Evans had confessed to hitting
Behrman with a car, wrapping her in plastic, stabbing her in the chest, and
dumping her body in Salt Creek, the fact remains that the confession simply did
15
There are obvious hearsay problems with much of this evidence. Myers has made no attempt to establish
that the statements at issue fall within an established exception to the hearsay rule, and we decline to develop
this argument on his behalf.
16
In her confession, Owings stated that the night before Behrman’s abduction, she and Sowders-Evans
walked to a house at the corner of Rockport and That Road and asked to use the telephone. Alice
O’Mullane lives at that corner, and she provided an affidavit stating that she remembered two girls coming to
her home after midnight and asking to use the phone “[s]ome time in 2002”. PCR Exhibit 134. Owings also
testified that Clouse ran a Jeep off Lampkins Ridge Road while en route to Salt Creek after hitting Behrman
with the truck. DL Poer testified at the PCR hearing that in 2000, she lived off of Lampkins Ridge Road and
drove a Jeep. Poer recalled almost being run off the road by a red truck in May 2000, but she gave conflicting
statements as to the precise date in May. Owings later told Detective Lang that she had made up this portion
of the story because she was familiar with the road and knew that people are often run off the road there.
Poer also testified that the stretch of road was very dangerous. Given these witnesses’ uncertainty concerning
the dates of these events, as well as Owings’s testimony that she based parts of her story on things that
actually happened, we cannot conclude that this evidence would have had a significant impact on the jury.
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not mesh with the physical evidence. Behrman’s remains were found in a
remote, wooded area, not in Salt Creek. There was no evidence that Behrman
had been stabbed or struck by a car, but there was clear evidence that she had
been shot in the head with a shotgun at the location where her remains were
discovered. Although trial counsel elicited testimony from Agent Dunn that he
had received a tip that the body had been moved, evidence was presented that
the visibility in Salt Creek was extremely poor, and even the FBI was forced to
go to the extreme measure of draining the creek in order to search it.
Convincing the jury that Owings, her alleged accomplices, or their associates
could have managed to remove the body from the creek would have been
challenging, to say the least. Given the numerous, obvious weaknesses of the
Owings theory, we cannot conclude that the decision not to pursue the theory
to the extent Myers now advocates resulted in prejudice to Myers.
Consequently, his claim of ineffective assistance of counsel on this basis fails.
K.
[90] Finally, Myers claims that the cumulative effect of trial counsel’s errors
amounted to ineffective assistance entitling him to a new trial. We have
reviewed each of Myers’s claims of error in detail and concluded that none of
them amount to ineffective assistance of counsel. Indeed, most of Myers’s
claims of ineffective assistance are nothing more than quarrels with trial
counsel’s reasonable strategic decisions. “Alleged ‘[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 at 1154 (quoting Reaves v.
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State, 586 N.E.2d 847, 858 (Ind. 1992)) (alteration in original). Accordingly, we
are unpersuaded by Myers’s cumulative error argument.
2.
[91] Next, Myers argues that the State violated his due process rights by failing to
disclose all exculpatory evidence to the defense. In Brady v. Maryland, the
United States Supreme Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). In order to
prevail on a Brady claim, the defendant must establish: “(1) that the
prosecution suppressed evidence; (2) that the evidence was favorable to the
defense; and (3) that the evidence was material to an issue at trial.” Stephenson
v. State, 864 N.E.2d 1022, 1056-57 (Ind. 2007) (quoting Conner v. State, 711
N.E.2d 1238, 1245-46 (Ind. 2000)). Under Brady, evidence is considered
material if the defendant establishes a reasonable probability that the result of
the proceeding would have been different had the State disclosed the evidence.
Stephenson v. State, 864 N.E.2d 1022. The State will not be found to have
suppressed material information if such information was available to the
defendant through the exercise of reasonable diligence. Id.[92] Myers concedes that he cannot identify even one specific piece of evidence that
the State suppressed. Instead, he asserts that in the course of investigating
Myers’s post-conviction claims, post-conviction counsel received over 8,000
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pages of documents directly from the FBI and the Bloomington Police
Department, and the State did not document transferring any of these materials
to the defense prior to trial in its discovery notices. At the PCR hearing,
however, evidence was presented that trial counsel received additional
discovery that was not documented by the State. Patrick Baker testified that
discovery was “fluid” and that the State was not always meticulous in
documenting what materials it had provided. PCR Transcript at 525. Chief
Deputy Prosecutor Robert Cline stated that prior to trial, he provided trial
counsel with a CD containing 3,000 pages of FBI reports, and possibly other
kinds of reports, without documenting the transfer. Additionally, Patrick Baker
testified that he reviewed boxes of investigative reports from the FBI, the
Indiana State Police, the Bloomington Police Department, and the Indiana
University Police Department at the Putnamville State Police Post.17
[93] We agree with the post-conviction court’s conclusion that based on the
evidence presented at the PCR hearing, it is unclear whether trial counsel was
provided with or had access to all of the relevant investigative reports.
Consequently, Myers has not satisfied his burden of establishing that the State
suppressed such evidence. Moreover, even if we assume the State failed to
disclose some evidence, without knowing what that evidence was, we cannot
17
Myers makes much of the fact that Patrick Baker testified that he read these reports in the post’s property
room. Sergeant Christopher Lewis, an ISP crime scene investigator, testified that police reports are not kept
in the property room. He testified further, however, that reports are kept at the Putnamville Post. Thus,
while trial counsel might have been mistaken in stating that he read the reports in the property room, this in
no way establishes that he did not view the reports at the Putnamville Post. Sergeant Lewis testified further
that the systems used to track who has viewed physical evidence held in the property room do not track who
has viewed police reports. Thus, the fact that trial counsel’s viewing of the police reports was not
documented in evidence logs likewise does not establish that he did not view the reports.
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begin to determine whether it was favorable to the defense and material to an
issue at trial, or merely cumulative of what was disclosed to Myers.
Additionally, Myers has made no attempt whatsoever to establish that the
allegedly suppressed investigative reports were not available to him through the
exercise of reasonable diligence. Essentially, Myers asks us to ignore his
evidentiary burden and presume not only that investigative reports were
suppressed, but also that somewhere among the allegedly suppressed reports, a
nugget of evidence satisfying the requirements of Brady must exist. This we will
not do.
3.
[94] Finally, Myers argues that he is entitled to reversal of his conviction because the
State committed prosecutorial misconduct at trial. Specifically, he asserts that
the State committed prosecutorial misconduct by knowingly presenting false
evidence and perjured testimony. See Giglio v. United States, 405 U.S. 150, 153
(1972) (explaining that “deliberate deception of a court and jurors by the
presentation of known false evidence is incompatible with ‘rudimentary
demands of justice’” (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)).
[95] Myers has fallen far short of establishing that the complained-of testimony and
evidence were false or that the State knew as much. But Myers’s claims of
prosecutorial misconduct fail for a more fundamental reason. “Post-conviction
procedures do not provide a petitioner with an opportunity to present
freestanding claims that contend the original trial court committed error.”
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Wrinkles v. State, 749 N.E.2d 1179, 1187 n.3 (Ind. 2001). Rather, “‘[i]n post-
conviction proceedings, complaints that something went awry at trial are
generally cognizable only when they show deprivation of the right to effective
counsel or issues demonstrably unavailable at the time of trial or direct
appeal.’” Bunch v. State, 778 N.E.2d 1285, 1289-90 (Ind. 2002) (quoting Sanders
v. State, 765 N.E.2d 591, 592 (Ind. 2002)). “An available grounds for relief not
raised at trial or on direct appeal is not available as a grounds for collateral
attack.” Canaan v. State, 683 N.E.2d 227, 235 (Ind. 1997). Myers has made no
attempt to establish that his claims of prosecutorial misconduct were
demonstrably unavailable at trial or on direct appeal. His claims of
prosecutorial misconduct are freestanding claims of trial error, and as such are
not cognizable in this PCR proceeding.
[96] Judgment affirmed.
Vaidik, C.J., and Robb, J., concur.
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