Daryl K. Henderson, Jr. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 01 2019, 6:41 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Daryl K. Henderson, Jr. Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daryl K. Henderson, Jr., April 1, 2019
Appellant-Petitioner, Court of Appeals Case No.
45A03-1712-PC-2998
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Respondent. Judge
Trial Court Cause No.
45G04-1509-PC-9
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019 Page 1 of 9
Statement of the Case
[1] Daryl K. Henderson, Jr. appeals the post-conviction court’s denial of his
petition for post-conviction relief. Henderson raises a single issue for our
review, namely, whether the post-conviction court erred when it denied his
petition because he was denied the effective assistance of trial counsel. We
affirm.
Facts and Procedural History
[2] The facts underlying Henderson’s convictions were stated by this Court on
direct appeal:
On August 2, 2012, Henderson spent his afternoon drinking
alcohol at his home in Gary, Indiana. At around 4:00 p.m.,
Henderson decided to drive to Rico’s Pizza to get pizza for his
family. At the time, Henderson’s driver’s license had been
suspended. Henderson also carried a small handgun on his
person despite the fact that his permit to carry a handgun had
since expired. While driving to Rico’s Pizza, Henderson was
drinking from a can of beer. When he arrived at Rico’s Pizza,
Henderson entered the restaurant holding his can of beer and
placed his order. While waiting for his order, he bumped into
Lawrence McIntosh (McIntosh), with whom he had no prior
acquaintance. They engaged in small talk when Henderson
stated that he wanted to buy alcohol, and McIntosh informed
Henderson that there was a liquor store next door. Shortly
thereafter, both men exited Rico’s Pizza and entered Party
Liquors. As they walked in, the cashier at Party Liquors told
Henderson that he could not serve him if he had an open can of
beer. Henderson turned around, walked out, placed his empty
can of beer on the pavement, and walked back in. While
Henderson was outside tossing his can of beer, McIntosh told the
cashier that he wished Henderson would leave him alone.
Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019 Page 2 of 9
Henderson reentered Party Liquors, but since the cashier refused
to sell him alcohol, he requested McIntosh to purchase alcohol
on his behalf. The Party Liquors’ surveillance video showed
McIntosh paying for what looked like a six-pack of beer and
leaving Henderson inside the liquor store. It further showed
McIntosh walking to his car, dropping off his six-pack of beer,
and going back into Rico’s Pizza. Also, it showed Henderson
leaving Party Liquors and returning to Rico’s Pizza to pick up his
pizza.
After Henderson picked up his pizza, he saw McIntosh on his
way out. Henderson approached McIntosh, and both men talked
briefly. A short while later, Henderson returned to Rico’s Pizza
to get a drink. When Henderson saw McIntosh seated inside the
restaurant, he approached McIntosh and started circling him
while making threatening hand gestures. That provoked
McIntosh and prompted him to stand up to face Henderson. At
that point, Henderson told McIntosh, “You want to act like you
don’t know me? . . . I got something for your ass when you come
outside.” (Transcript p. 153). McIntosh responded that he was
tired of Henderson’s “shit” and he told him to leave him alone
and get his own beers. (Tr. p. 208). McIntosh then punched
Henderson and a scuffle ensued. The fight did not last long
because both men were ordered to go outside. Prior to the
altercation, McIntosh had removed his t-shirt, but upon exiting
Rico’s Pizza, he began to put it back on. As soon as both men
were outside, Henderson retrieved his handgun from his pocket,
aimed it at McIntosh, and fired one shot at close range.
Henderson fired two more shots at McIntosh as he was running
away from him. Firing the shots, Henderson told McIntosh, “I
told you I was gonna do this.” (Tr. p. 237). McIntosh was hit
twice: in his jaw and chest, with the chest wound causing his
death. Meanwhile, Henderson ran toward his vehicle, fired two
more random shots, and reloaded his gun.
A police officer who was on patrol in the nearby area heard the
gunshots and drove toward the direction of the shots. When he
Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019 Page 3 of 9
arrived at Rico’s Pizza, he saw people pointing toward
Henderson’s vehicle and he immediately activated his emergency
lights. Upon seeing the officer, Henderson fired one more shot in
the officer’s direction and fled from the scene. A high speed
chase through the city ensued. Henderson’s vehicle eventually
came to a stop when it hit a stop sign. Henderson attempted to
flee on foot and hid behind some bushes but was quickly
apprehended by the officers. Although he resisted arrest, the
officers were able to subdue him. Upon searching Henderson’s
vehicle, the officers found a small handgun on the floorboard.
Because Henderson complained of injuries, he was taken to the
hospital, for treatment. Henderson became unruly at the hospital
and he had to be restrained. The following day, Gary police
detectives interviewed Henderson after advising him of his
Miranda rights. Henderson narrated four different versions of the
events leading to the shooting.
On August 4, 2012, the State filed an Information charging
Henderson with one Count of murder, and one Count of resisting
law enforcement, [as] a Class D Felony. However, on November
8, 2012, and subsequently on October 16, 2013, the State
amended the Information to reflect the following charges: Count
III, criminal recklessness, a Class D felony; Count IV, resisting
law enforcement, a Class A misdemeanor; Count V, resisting law
enforcement, a Class A misdemeanor; Count VI, carrying a
handgun without a license, a Class A misdemeanor; Count VII,
driving while suspended, a Class A misdemeanor; Count VIII, no
valid driver’s license, a Class C infraction; Count IX, speeding, a
Class C infraction; Counts X-XXVI, disregarding automatic
signals and disregarding stop signs, all Class C infractions.
Henderson’s jury trial was conducted on November 18, 2013
through November 22, 2013. At trial, Henderson testified that he
only shot at McIntosh in self-defense because he believed that
McIntosh was reaching for something inside his shirt, and he
feared for his life. Toward the end of the trial, Henderson
tendered jury instructions on voluntary manslaughter and
Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019 Page 4 of 9
reckless homicide. The trial court declined to tender the
voluntary manslaughter instruction but tendered the reckless
homicide instruction. At the close of the evidence, the jury found
Henderson guilty of murder and all other Counts except for one
Count of criminal recklessness, a Class D felony; one Count of
resisting law enforcement, a Class A misdemeanor; and three of
the traffic infractions.
On December 19, 2013, the trial court held Henderson’s
sentencing hearing and sentenced Henderson to consecutive
sentences of fifty-three years for the murder conviction, and
fourteen months for one Count of resisting law enforcement, [as]
a Class D felony. In addition, the trial court sentenced
Henderson to concurrent sentences of nine months each for one
Count of resisting law enforcement, a Class A misdemeanor, and
one Count for carrying a handgun without a license, a Class A
misdemeanor. Henderson also received a ninety-day sentence in
the Lake County Jail for driving while suspended.
Henderson v. State, No. 45A03-1401-CR-34, 2014 WL 5089297, at *1-2 (Ind. Ct.
App. Oct. 9, 2014), trans. denied (“Henderson I”).
[3] Henderson raised a single issue on direct appeal, namely, whether the trial court
abused its discretion when it did not instruct the jury on voluntary
manslaughter. The trial court had declined to give the proffered instruction
after finding no serious evidentiary dispute regarding whether Henderson had
acted under sudden heat, and we affirmed Henderson’s convictions on appeal.
Id. at *4-5.
[4] On September 24, 2015, Henderson filed a petition for post-conviction relief,
and he filed an amended petition on October 11, 2016, alleging ineffective
Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019 Page 5 of 9
assistance of trial counsel. On December 4, 2017, after a hearing, the post-
conviction court denied Henderson’s petition. This appeal ensued.
Discussion and Decision
[5] Henderson contends that he was denied the effective assistance of trial counsel. 1
Our standard of review in such appeals is clear:
“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
“When appealing the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. at 274. In order to prevail on an appeal from the
denial of post-conviction relief, a petitioner must show that the
evidence leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case entered findings of fact and
conclusions of law in accordance with Indiana Post-Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (internal quotation omitted).
Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017). Further:
1
To the extent that Henderson, pro se, purports to assert as a separate issue that “the post-conviction court
violated substantive due process in denying post-conviction relief,” the argument in support of that
contention is merely a reiteration of his contentions in support of his ineffective assistance of counsel claim.
Appellant’s Br. at 12.
Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019 Page 6 of 9
When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the defendant must show deficient performance:
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.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Id. at 682.
[6] Henderson contends that his trial counsel rendered ineffective assistance
because his counsel did not investigate whether McIntosh was a gang member,
which would have supported Henderson’s self-defense claim, and because his
counsel did not depose three of the State’s witnesses prior to trial. We address
each argument in turn.
Failure to Investigate Victim’s Alleged Gang Affiliation
[7] Henderson maintains that his trial counsel was ineffective because he did not
investigate McIntosh’s background to determine whether he had been a
member of a gang. Henderson asserts that “Henderson’s perceptions of
[McIntosh] as a deadly threat based on his gang affiliation” would have
supported his self-defense claim at trial. Appellant’s Br. at 9.
Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019 Page 7 of 9
[8] However, as the post-conviction court stated, while evidence of a murder
victim’s prior bad acts is admissible to prove that the victim had a violent
character which frightened the defendant, a defendant offering such evidence
“must present evidence that he knew about the specific bad acts in question
before he killed the victim.” Appellant’s App. Vol. III at 8 (citing Holder v.
State, 571 N.E.2d 1250, 1254 (Ind. 1991)). In support of his amended petition
for post-conviction relief, Henderson did not present any evidence that
McIntosh was a gang member. Moreover, Henderson did not present any
evidence that he knew at the time of the murder that McIntosh was a gang
member. 2 Accordingly, Henderson has not shown that his trial counsel’s
performance was deficient when he did not investigate whether McIntosh was a
gang member.
Failure to Depose Witnesses
[9] Henderson also contends that his trial counsel was ineffective because he did
not depose three of the State’s witnesses, namely, Juanita Hernandez, Lisa
Shinkle, and Vanessa Thomas. Henderson maintains that “counsel’s failure to
depose the witnesses undermined counsel’s ability to cross-examine [the]
witnesses and to present evidence in support of the self-defense theory.”
Appellant’s Br. at 11. We cannot agree.
2
At the hearing on his petition, Henderson asserted that McIntosh had “gang-related tattoos” on his body,
and Henderson asked his trial counsel why he did not seek to introduce those tattoos into evidence. Tr. at
36. But, other than his self-serving testimony, which the trial court had discretion to find not credible,
Henderson did not present evidence that McIntosh’s tattoos reflected his membership in a gang or otherwise
suggested that McIntosh was a violent person. Henderson has not sustained his burden to show that
McIntosh’s tattoos were relevant to his self-defense claim.
Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019 Page 8 of 9
[10] Our Supreme Court has held that a counsel’s failure to interview or depose
State’s witnesses does not, in itself, constitute ineffective assistance of counsel.
Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 2000). Henderson must identify
what additional information would have been discovered and how he was
prejudiced by the absence of this information. See id. On appeal, other than
pointing out a single inconsistency in Hernandez’ testimony, which his trial
counsel had pointed out during his cross-examination of her at trial, Henderson
does not explain what deposing the three witnesses prior to trial would have
accomplished. We cannot say that he was denied the effective assistance of
trial counsel.
[11] In sum, Henderson has not shown that his trial counsel’s performance was
deficient. Neither has Henderson shown that, but for counsel’s alleged errors,
the result of the proceeding would have been different. The post-conviction
court did not err when it denied his amended petition for post-conviction relief.
[12] Affirmed.
Baker, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019 Page 9 of 9