Dorian Lee v. State of Indiana , 91 N.E.3d 978 ( 2017 )

FILED
Dec 27 2017, 8:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Dorian Lee Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dorian Lee, December 27, 2017
Appellant-Petitioner, Court of Appeals Case No.
71A05-1702-PC-326
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Respondent. Miller, Judge
Trial Court Cause No.
71D01-0305-PC-20
Bailey, Judge.
Case Summary
[1] Dorian Lee (“Lee”) appeals, pro se, the post-conviction court’s denial of his
amended petition for post-conviction relief. We affirm.
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Issues
[2] On appeal, Lee raises multiple ineffective assistance of trial and appellate
counsel claims, which we restate as follows:
I. Whether Lee’s trial counsel was ineffective for failing to
object to jury instructions regarding accomplice liability
for murder.
II. Whether Lee’s trial counsel was ineffective for failing to
object to jury instructions regarding attempted murder.
III. Whether Lee’s trial counsel was ineffective for failing to
object to jury instructions and prosecutor’s statements
regarding accomplice liability for attempted murder.
IV. Whether Lee’s trial counsel was ineffective for failing to
object to jury instructions that created a “mandatory
presumption.”
V. Whether Lee’s trial counsel was ineffective for failing to
raise the lack of evidence that Lee attempted to murder
Janice Boyd.
VI. Whether Lee’s trial counsel was ineffective for failing to
properly impeach adverse witnesses.
VII. Whether Lee’s trial counsel was ineffective for failing to
properly conduct discovery.
VIII. Whether Lee’s trial counsel was ineffective for failing to
seek a trial separate from Lee’s co-defendants.
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IX. Whether Lee’s trial counsel was ineffective for failing to
object to the admission of a firearm because it was
obtained pursuant to an illegal search.
X. Whether Lee’s appellate counsel was ineffective for failing
to raise Lee’s trial counsel’s ineffective assistance.
Facts and Procedural History
[3] The facts underlying Lee’s convictions were set out in the Indiana Supreme
Court’s decision on Lee’s direct appeal:
On June 12, 1995, [Lee], along with two armed men, Terrance
Mitchem and Michael Greer, broke and entered a home
occupied by four adults. [Lee] raped one of the female victims
and participated in the shooting of all four victims. One victim
was killed,[1] while the other three survived.[2]
Lee v. State, 684 N.E.2d 1143, 1145 (Ind. 1997). We will provide additional
facts as needed.
[4] Following a December 1995 jury trial in which Lee was tried jointly with co-
defendants Terrance Mitchem (“Mitchem”) and Michael Greer (“Greer”), Lee
was convicted of murder;3 burglary, as a Class B felony;4 three counts of
1
The victim who was killed was Victor Hill (“Hill”).
2
The other three victims were Janice Boyd (“Janice”), Nicole Boyd (“Nicole”), and Jeffrey Sims (“Sims”).
3
Ind. Code § 35-42-1-1 (1993).
4
I.C. § 35-42-2-1.
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attempted murder, as Class A felonies;5 and rape, as a Class A felony.6 Lee
filed a direct appeal in which our Supreme Court upheld his convictions. Lee,
684 N.E.2d at 1150.
[5] On May 8, 2003, Lee filed a petition for post-conviction relief (“PCR”). On
September 4, 2007, Lee filed a motion for an indefinite continuance of his PCR
petition, and the trial court granted the motion. On May 1, 2015, Lee filed an
amended petition for PCR in which he raised numerous allegations of
ineffective assistance of trial and appellate counsel. The court held a post-
conviction evidentiary hearing on May 27, 2016, and October 29, 2016. On
January 11, 2017, the post-conviction court issued its order denying Lee’s
petition. This appeal ensued.
Discussion and Decision
Standard of Review
[6] Lee appeals the post-conviction court’s denial of his amended petition for post-
conviction relief. Our standard of review is clear:
[The petitioner] bore the burden of establishing the grounds for
relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). Because he is now appealing from a negative
judgment, to the extent his appeal turns on factual issues, [the
5
I.C. §§ 35-41-5-1 and 35-42-1-1.
6
I.C. § 35-42-4-1.
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petitioner] must convince this Court that the evidence as a whole
leads unerringly and unmistakably to a decision opposite that
reached by the post[-]conviction court. Harrison v. State, 707
N.E.2d 767, 773 (Ind. 1999) (citing Spranger v. State, 650 N.E.2d
1117, 1119 (Ind. 1995)). We will disturb the decision only if the
evidence is without conflict and leads only to a conclusion
contrary to the result of the post[-]conviction court. Id. at 774.
Post[-]conviction procedures do not afford a petitioner with a
super-appeal, and not all issues are available. Rouster v. State, 705
N.E.2d 999, 1003 (Ind. 1999). Rather, subsequent collateral
challenges to convictions must be based on grounds enumerated
in the post[-]conviction rules. P C.R. 1(1); Rouster, 705 N.E.2d at
1003. If an issue was known and available, but not raised on
direct appeal, it is waived. Rouster, 705 N.E.2d at 1003. If it was
raised on appeal, but decided adversely, it is res judicata. Id.
(citing Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994)). If not
raised on direct appeal, a claim of ineffective assistance of trial
counsel is properly presented in a post[-]conviction proceeding.
Woods v. State, 701 N.E.2d 1208, 1215 (Ind. 1998). A claim of
ineffective assistance of appellate counsel is also an appropriate
issue for post[-]conviction review. As a general rule, however,
most free-standing claims of error are not available in a post[-]
conviction proceeding because of the doctrines of waiver and res
judicata. Some of the same contentions, to varying degrees, may
be properly presented in support of a claim of ineffective
assistance of trial or appellate counsel.
Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001).
Ineffective Assistance of Trial Counsel
[7] Lee contends that his trial counsel was ineffective. As our Supreme Court has
noted:
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[t]his Court reviews claims of ineffective assistance of counsel
under the two components set forth in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, the
defendant must show that counsel’s performance was deficient.
Id. at 687, 104 S. Ct. 2052. This requires a showing that counsel’s
representation fell below an objective standard of reasonableness,
id. at 688, 104 S. Ct. 2052, and that the errors were so serious that
they resulted in a denial of the right to counsel guaranteed the
defendant by the Sixth Amendment, id. at 687, 104 S. Ct. 2052.
Second, the defendant must show that the deficient performance
prejudiced the defendant. Id. To establish prejudice, a defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. Id. at 694, 104 S. Ct. 2052. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id.
Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002); see also Wrinkles v. State,
749 N.E.2d 1179, 1192 (Ind. 2001) (citation omitted) (“In order to
prove ineffective assistance of counsel due to the failure to object, a
defendant must prove that an objection would have been sustained if
made and that he was prejudiced by the failure.”).
[8] We will not second-guess trial counsel’s strategy and tactics unless they are so
unreasonable that they fall outside objective standards. See, e.g., Benefield v.
State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). Isolated mistakes, poor
strategy, inexperience, and instances of bad judgment do not necessarily render
representation ineffective. Wentz, 766 N.E.2d at 361. And if we can dispose of
a claim of ineffective assistance of counsel by analyzing the prejudice prong
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alone, we will do so. Benefield, 935 N.E.2d at 797 (citing Wentz, 766 N.E.2d at
360).
[9] Lee raises eight ineffective assistance of trial counsel claims, each of which we
address in turn.
1. Failure to object to jury instructions regarding accomplice liability for murder
[10] Lee was charged, as a principal, with the murder of Victor Hill, and the State
also tried Lee as an accomplice to that murder.7 Lee contends that the jury
instructions regarding accomplice liability for murder8 were improper because
7
To the extent Lee maintains that he could not properly be tried for murder both as a principal and an
accomplice, he is mistaken. See, e.g., Taylor v. State, 840 N.E.2d 324, 333 (Ind. 2006). Moreover, it is
irrelevant whether the jury found Lee guilty as a principal or an accomplice because he was equally culpable
under either theory of liability. See id.
8
The final jury instruction regarding murder stated as follows:
To convict a defendant of Murder as charged in Counts [sic] I, the State must have proved each of
the following elements beyond a reasonable doubt:
1. A defendant, acting alone or with an accomplice,
2. intentionally,
3. killed Victor Hill.
Trial Record (hereinafter, “Tr. R.”) Vol. I at 151.
The final jury instructions regarding aiding and abetting stated as follows:
In order for you to find a defendant aided, induced, or caused any of the counts of murder,
attempted murder, or burglary, the [S]tate must have proved beyond a reasonable doubt that[,] with
regard to any of these charges, that [sic] a defendant was aware with a high degree of probability
that he was engaged in conduct that aided, induced, or caused murder, attempted murder, and
burglary and that his behavior would facilitate the commission of the murder, attempted murder[,]
and burglary.
Id. at 157; and
You may find the defendant guilty of the offense if you find that the offense was committed by
someone whom the defendant aided, induced[,] or caused to commit the offense.
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they did not inform the jury that, in order to find Lee guilty as an accomplice, it
must find that those whom he was aiding acted with the knowing or intentional
mens rea for murder. In support, he cites the Court of Appeals case Taylor v.
State, 820 N.E.2d 691, 695 (Ind. Ct. App. 2005). However, that decision was
vacated by our Supreme Court, which specifically held that a defendant can be
found guilty of murder for intentionally aiding and abetting a principal to kill a
victim so long as the principal killed the victim and the defendant knew or
intended that the victim would be killed. Taylor v. State, 840 N.E.2d 324, 335-
36 (Ind. 2006). This is so even if the principal did not “knowingly or
intentionally” kill the victim. Id. Thus, a defendant can be found guilty of a
Before you can find a defendant guilty of the charge in this manner, you must find beyond a
reasonable doubt that he participated in the crime in such a way as to aid, induce[,] or cause the
crime to be committed.
Negative acquiescence, that is, merely letting a crime occur, is not sufficient participation to support
a guilty verdict.
Similarly, mere presence at the scene of a crime is not sufficient participation to support a guilty
verdict. Th[e] fact that the defendant was a relative or companion of the person who committed the
crime does not constitute aiding, inducing[,] or causing the crime.
There must be some conduct of an affirmative nature on the part of the defendant that aids,
induces[,] or causes the crime to be committed in order for you to find him guilty of a crime another
person committed.
Id. at 178.
The court also provided the jury with the following instruction regarding accomplice liability:
A person is responsible for the acts of his accomplices as well as his own. The acts of one person are
attributable to all who are acting together during the commission of a crime. Accordingly, the State
need not prove, beyond a reasonable doubt, that a defendant personally and acting by himself,
committed all of the elements of the crime or crimes with which he is charged. However, the State
must prove, beyond a reasonable doubt, that the defendant and the other person or persons, acting
together, committed all of the elements of the crime or crimes with which he is charged.
Id. at 166.
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greater degree of homicide than the principal; in such a situation, the
defendant’s mens rea would be more culpable than that of the principal. Id.
Therefore, the post-conviction court did not err in ruling that Lee’s trial counsel
was not ineffective for failing to object that the jury instructions regarding
accomplice liability for murder did not require the jury to find that the principal
had the specific mens rea to kill.
2. Failure to object to jury instructions regarding attempted murder
[11] Lee maintains that the jury instructions regarding attempted murder were
improper because they included the information in six counts against Lee,
including Counts III through V, which used the word “knowingly” in relation
to the element of mens rea for attempted murder.9 In support, he cites Spradlin
9
The charging information on Counts III through V, as contained in the final jury instructions, stated in
relevant part that Lee, “with the intent to commit the crime of Murder, that is[,] knowingly or intentionally
killing another human being, engaged in conduct that constituted a substantial step toward the commission of
the crime of Murder ….” Tr. R. Vol. I at 144-45.
The final jury instructions regarding attempted murder stated as follows:
To convict a defendant of attempted murder, a Class A felony, as charged in Counts III, the State
must prove each of the following elements beyond a reasonable doubt:
1. A defendant,
2. With the intent to kill [the victim],
3. Engaged in conduct which was a substantial step toward the commission of the crime of
murder.
Tr. R. Vol. I at 153.
The jury also received the following additional instruction regarding attempted murder:
In a case where a defendant is charged with Attempted Murder, it is not enough that a defendant
engaged in the proscribed conduct, such as firing a weapon. The State must prove beyond a
reasonable doubt that a defendant also engaged in the conduct with the specific intention of
accomplishing the killing of a human being.
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v. State, which held that jury instructions regarding a charge of direct liability for
attempted murder must inform the jury that the State must prove beyond a
reasonable doubt that the defendant acted with the specific intent to kill and
took a substantial step toward such killing. 569 N.E.2d 948, 950-51 (Ind. 1991);
see also Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015) (noting that Spradlin related
to direct liability, rather than accomplice liability, for attempted murder). The
“Spradlin rule” is necessary because of “the higher sentence range for attempted
murder in combination with the ambiguity involved in the proof of that crime.”
Ramsey v. State, 723 N.E.2d 869, 872 (Ind. 2000). Lee maintains that, because
the instruction quoting the charging information on murder included the word
“knowingly,” it erroneously led the jury to believe it could convict him of
attempted murder upon a showing that he merely “knew” he was acting,
regardless of his intent in acting. We disagree.
[12] Lee is correct that an instruction that informs the jury that a “knowingly” mens
rea, alone, is sufficient to establish guilt, as a principal, of attempted murder
constitutes fundamental error. Spradlin, 569 N.E.2d at 950-51. However, that
is not what the jury instructions regarding direct liability for attempted murder
stated in Lee’s case. We do not read segments of a jury instruction in isolation;
rather, we consider the instructions as a whole. Price v. State, 765 N.E.2d 1245,
1252 (Ind. 2002). Here, the jury instructions as a whole informed the jury that,
in order to find Lee guilty of attempted murder, “it is not enough that [he]
Id. at 156 (emphasis added).
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engaged in the proscribed conduct,” i.e., that he acted knowingly. Tr. R. Vol. I
at 156. The instruction then states that the jury must find the defendant acted
“with the specific intention of accomplishing the killing” of another human
being. Id. The instruction on attempted murder also stated that the State had
to prove beyond a reasonable doubt Lee’s “intent to kill” the victim. Id. at 153.
Therefore, there was no Spradlin error in the jury instructions, and trial counsel
was not ineffective for failing to object on that basis. See Ramsey v. State, 723
N.E.2d 869, 872-73 (Ind. 2000) (finding the jury instructions as a whole
sufficiently informed the jury of the specific intent requirement for attempted
murder, despite the use of the word “knowingly” in one of the instructions).
3. Failure to object to jury instructions and prosecutor’s statements regarding
accomplice liability for attempted murder
[13] Lee asserts his trial counsel was ineffective for failing to object to (1)
instructions that permitted the jury to convict him of attempted murder as an
accomplice without the specific intent to kill, and (2) the prosecutor’s closing
argument indicating the same. The Spradlin decision made it clear that, in the
context of direct liability, a jury instruction must set forth the specific intent
requirement for attempted murder. Spradlin, 569 N.E.2d at 950. In 2000, our
Supreme Court for the first time held that the same rule applies to jury
instructions relating to accomplice liability for attempted murder. Bethel v. State,
730 N.E.2d 1242, 1246 (Ind. 2000). Even more recently, our Supreme Court
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held, in a matter of first impression,10 that the same rule applies to jury
instructions relating to attempted murder where both theories of direct and
accomplice liability are at issue. Rosales, 23 N.E.2d at 15. Thus, as of the date
Rosales was decided—i.e., January 15, 2015—Indiana law requires that, where
both direct and accomplice liability theories are at issue for an attempted
murder charge, the jury instructions must specify that a conviction requires
proof beyond a reasonable doubt that the defendant had the specific intent to
kill. Id. Moreover, it is not sufficient that the instructions regarding attempted
murder require a finding of specific intent if the accomplice instructions do not
also require a finding of specific intent. Id.; see also Tiller v. State, 896 N.E.2d
537, 542 (Ind. Ct. App. 2008) (“While the trial court’s instruction correctly
stated the law as it generally pertained to accomplice liability, the trial court’s
instruction fell short of adequately instructing the jury that the specific intent
requirement for attempted murder, as properly set forth in the attempted
murder instruction, also applied to accomplice liability for attempted murder.”),
trans denied.
[14] Here, like the defendant in Rosales, Lee was charged with attempted murder
under both direct and accomplice theories of liability. And, as in Rosales, while
Lee’s jury instructions noted specific intent was required to convict him of
attempted murder, the instructions regarding accomplice liability indicated that
10
Rosales, 23 N.E.3d at 12-13 (noting the Court was resolving a matter of first impression).
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a person could be guilty of attempted murder without also noting that he must
have the specific intent to kill.11 Furthermore, as in Rosales, the prosecutor
exacerbated that error by indicating in his closing argument that Lee’s specific
intent to kill was not required to find him guilty of attempted murder as an
accomplice.12 Id. And, again as in Rosales, the general verdict forms used made
it impossible to determine whether direct or accomplice liability formed the
basis of the jury’s decisions regarding attempted murder.13 Id.
[15] However, Lee’s trial took place in 1995. Thus, at the time of his trial, Indiana
courts had not yet held that jury instructions on attempted murder under a
theory of accomplice liability alone, Bethel, 730 N.E.2d at 1246, or accomplice
and direct liability theories together, Rosales, 23 N.E.3d at 15, must state the
requirement of specific intent to kill. “For purposes of ineffective assistance of
counsel claims, the law requires consideration of legal precedent available to
counsel at the time of his representation of the accused, and counsel will not be
deemed ineffective for not anticipating or initiating changes in the law.”
Sweeney v. State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008) (citing Gann v. State, 550
11
Compare accomplice instructions in Rosales, 23 N.E.3d at 10-11 (“[a] person who knowingly or
intentionally aids, induces or causes another person to commit an offense commits that offense ... [a]n
accomplice is liable for the acts of the principal which, even if not a part of their original plan, are probable
and natural consequences thereof”), with the language in Lee’s jury instructions regarding aiding and
abetting, Tr. R. Vol. I at 178, and accomplice liability, id. at 166, as quoted in footnote 8, above.
12
Regarding accomplice liability, the prosecutor stated to the jury: “All the State of Indiana has to do is
show you that each one of these essential elements were committed. Each defendant doesn’t have to do
every one, as long as they’re acting together, as long as all of those essential elements are fulfilled, then the
State has satisfied its burden.” Tr. R. Vol. VI at 1516.
13
Tr. R. Vol. I at 185-87.
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N.E.2d 73, 75 (Ind.1990)), trans. denied; see also Smylie v. State, 823 N.E.2d 679,
690 (Ind. 2005) (quotation and citation omitted) (“An attorney is not required
to anticipate changes in the law and object accordingly in order to be
considered effective”). The post-conviction court did not err in denying Lee’s
claim of ineffective assistance of counsel for failure to object to the instruction
regarding accomplice liability for attempted murder.14
4. Failure to object that instructions created a “mandatory presumption”
[16] Lee also contends that, because the accomplice instructions, as applied to the
attempted murder charges, did not require specific intent, they created an
impermissible “mandatory presumption” that Lee had the required mens rea to
find him guilty.15
The Due Process Clause prohibits the State from relying upon an
evidentiary presumption that has the effect of relieving it of its
burden to prove every essential element of a crime beyond a
reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 524, 99
S. Ct. 2450, 61 L. Ed. 2d 39 (1979); McCorker v. State, 797 N.E.2d
257, 263 (Ind. 2003). As a threshold matter, we must first
determine whether the challenged instruction creates a
mandatory presumption or merely a permissive inference. Francis
14
Because we hold that, at the time of Lee’s trial, the law did not require that accomplice liability
instructions for attempted murder must contain specific intent language, we do not address the State’s
contention that any instruction error regarding intent would be not be fundamental because Lee’s intent was
not at issue in that he relied exclusively on an alibi defense.
15
Lee also contends—incorrectly—that “the proper reasonable doubt language is missing” from the jury
instructions. Appellant’s Br. at 24. The jury instructions define reasonable doubt, Tr. R. Vol. I at 169, and
instruct that the State must prove all elements of all the crimes, generally, Id. at 168, and attempted murder,
specifically, Id. at 157, beyond a reasonable doubt.
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v. Franklin, 471 U.S. 307, 313–14, 105 S. Ct. 1965, 85 L. Ed. 2d
344 (1985). “A mandatory presumption instructs the jury that it
must infer the presumed facts if the State proves certain predicate
facts.” Winegeart v. State, 665 N.E.2d 893, 904 (Ind. 1996)
(emphasis added). If that presumption amounts to a shift in the
burden of proof, it is unconstitutional. Francis, 471 U.S. at 315–
16, 105 S. Ct. 1965.
Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016). A permissive inference, on the
other hand,
“suggests to the jury a possible conclusion to be drawn if the
State proves predicated facts, but does not require the jury to
draw that conclusion.” [Winegeart, 665 N.E.2d at 904.] Such an
inference “does not relieve the State of its burden of persuasion
because it still requires the State to convince the jury that the
suggested conclusion should be inferred based on the predicate
facts proved.” Id. Permissive inference instructions “violate the
Due Process Clause only if the suggested conclusion is not one
that reason and common sense justify in light of the proven facts
before the jury.” Id.
Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998).
[17] Here, the jury instructions regarding aiding and abetting used only permissive
language;16 therefore, they created only a permissive inference rather than a
mandatory presumption. However, the instructions regarding accomplice
liability seem to create a mandatory presumption; that is, they indicate that, if
16
The instructions used permissive language such as “in order for you to find,” “you may find,” and
“[b]efore you can find.” Tr. R. Vol. I at 157, 178 (See footnote 8, above).
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Lee acted together with his co-defendants, then he is guilty as an accomplice.17
Cf. McCorker v. State, 797 N.E.2d 257, 264-65 (Ind. 2003) (finding similar
accomplice liability language to be permissible when the same instruction also
contained language requiring a finding of specific intent). But, the law at the
time of Lee’s trial held that an instruction that seems to create a mandatory
presumption “‘must be considered in the context of the charge as a whole,’
because it may be explained by other instructions sufficiently to avoid the
creation of an unconstitutional presumption.”18 Winegeart, 665 N.E.2d at 904
(quoting Francis 471 U.S. at 315). And, here, the instructions regarding
attempted murder did require that the jury find specific intent to kill 19 in order to
find Lee guilty, thereby avoiding the creation of an unconstitutional
presumption.20 Id. Therefore, Lee’s counsel was not ineffective for failing to
object to the accomplice liability instructions.
17
Tr. R. Vol. I at 166 (See footnote 8, above).
18
As noted in the previous section of this opinion, the law now requires that, in the specific case of
accomplice instructions regarding attempted murder, the instructions must require a finding that the
defendant acted with the specific intent to kill, and failure to do so within the accomplice instructions
themselves cannot be cured by looking to other instructions. Tiller, 896 N.E.2d at 542. However, “[f]or purposes
of ineffective assistance of counsel claims, the law requires consideration of legal precedent available to
counsel at the time of his representation of the accused.” Sweeney, 886 N.E.2d at 8.
19
Tr. R. Vol. I at 153, 156 (See footnote 9, above).
20
Because we hold that the instructions did not create a mandatory presumption, we do not address the
State’s contention that any instruction error regarding intent would be harmless because Lee’s intent was not
at issue in that he relied exclusively on an alibi defense.
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5. Failure to raise the lack of evidence of attempted murder of Janice Boyd
[18] Lee maintains that his attorney was ineffective for “failing to object to the
insufficient evidence” that he attempted to murder Janice Boyd.21 Appellant’s
Br. at 25. He contends that there was no evidence that he “shot at and against
the body” of Janice or “inflicted wounds” on her, since there was no evidence
that any of the shots he fired in Janice’s direction actually hit her. Id. at 26.
However, Lee is mistaken regarding what evidence is sufficient to establish guilt
of attempted murder.
[19] As our Supreme Court has noted,
A conviction for attempted murder requires proof of a specific
intent to kill. Bethel v. State, 730 N.E.2d 1242, 1245 (Ind. 2000).
Because intent is a mental state, we have noted that intent to kill
may be inferred from the deliberate use of a deadly weapon in a
manner likely to cause death or serious injury. Wilson v. State,
697 N.E.2d 466, 476 (Ind. 1998). And firing a gun in the
direction of an individual is substantial evidence from which a
jury may infer intent to kill. Jones v. State, 536 N.E.2d 267, 270
(Ind. 1989).
Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). This is so even if the deliberate
use of a deadly weapon does not actually result in injury to the intended victim.
“Attempted murder requires a certain act and a certain intent. It does not
21
Although Lee styles his claim as a “failure to object,” we presume Lee means that his trial counsel was
ineffective for failing to raise the issue of insufficient evidence, such as through a motion for judgment on the
evidence or a motion for a directed verdict. Ind. Trial Rule 50.
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matter whether the act, the substantial step taken toward the commission of
murder, results in any injury whatsoever, so long as it is coupled with the intent
to kill.” Wethington v. State, 655 N.E.2d 91, 96 (Ind. Ct. App. 1995) (holding
the defendant’s “intentional attempt on [the victim’s] life was completed with
the first swing of his tire tool in the direction of [the victim’s] head, whether or
not it connected”), trans. denied.
[20] Here, the evidence established that Lee, along with his co-defendants, lined the
victims up and shot at them repeatedly. Lee used a shotgun and, although no
shotgun pellets were recovered from Janice’s body, the evidence established
that Lee did, at close range, fire his shotgun in Janice’s direction. That is
sufficient evidence of Lee’s actions and his intent to attempt to murder Janice,
and his attorney was not ineffective for failing to raise the issue of a lack of such
evidence.22 Henley, 881 N.E.2d at 652.
6. Failure to properly impeach adverse witnesses
[21] Lee contends that his trial counsel was ineffective for failing to “properly
impeach” adverse witnesses. Appellant’s Br. at 27. Specifically, he asserts that
his counsel failed to impeach witnesses with their prior inconsistent statements;
failed to impeach co-defendant Mitchem regarding his biased reasons for
placing blame on Lee; and failed to cross examine Sims regarding his faulty
22
Furthermore, our Supreme Court has held generally that a “failure of trial counsel to move for a directed
verdict does not create sufficient prejudice to result in a finding of ineffective assistance of counsel.” Siglar v.
State, 541 N.E.2d 944, 948 (Ind. 1989).
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memory. However, “the method of impeaching witnesses is a tactical decision
and a matter of trial strategy that does not amount to ineffective assistance.”
Kubsch v. State, 934 N.E.2d 1138, 1151 (Ind. 2010); see also McCary v. State, 761
N.E.2d 389, 392 (Ind. 2002) (quotation and citation omitted) (“Few points of
law are as clearly established as the principle that tactical or strategic decisions
will not support a claim of ineffective assistance.”). That is especially true here,
where trial counsel did, in fact, take all the steps Lee claims she did not. Lee’s
trial counsel cross examined each of the victims regarding their prior statements
to police which seemed inconsistent with their trial testimony. Tr. R. Vol. IV at
941-44; 975-79; Tr. R. Vol. V at 1167-70. Lee’s trial counsel also cross
examined Sims regarding his alleged faulty memory of the prior statements he
made to police. Tr. R. Vol. V at 1168-70. And Lee’s counsel pointed out in her
closing argument the witnesses’ inconsistent statements regarding Lee’s identity
as a perpetrator and Mitchem’s attempts to shift blame from himself to Lee. Tr.
R. Vol. at 1531-32.
[22] Lee has failed to show clear error in the post-conviction court’s decision that
Lee’s trial counsel was not ineffective for failing to properly impeach adverse
witnesses.
7. Failure to properly conduct discovery
[23] Lee asserts that his trial counsel did not “properly investigate” discovery
materials and, had she done so, she would have: moved to suppress the firearm
that he alleges the State obtained illegally; questioned Sims’ character based on
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his drug use; impeached witnesses regarding inconsistent statements; and
objected to jury instructions. Appellant’s Br. at 30. Lee fails to articulate which
discovery materials his counsel did not obtain and/or review; rather, he simply
states “i.e., Depositions.” However,
[c]ounsel’s failure to interview or depose State’s witnesses does
not, standing alone, show deficient performance. The question is
what additional information may have been gained from further
investigation and how the absence of that information prejudiced
his case.
Williams v. State, 771 N.E.2d 70, 74 (Ind. 2002) (citations omitted).
[24] We hold that Lee has waived this claim by failing to provide cogent argument.
Lee does not state what additional information would have been gained if his
lawyer had conducted depositions or otherwise “investigated” any other
unidentified discovery materials. Appellant’s Br. at 30. Nor does he explain
how the absence of such information prejudiced his case. “On review, we will
not search the record to find a basis for a party’s argument, nor will we search
the authorities cited by a party in order to find legal support for its position.”
Young v. Butts, 685 N.E.2d 147, 151 (Ind. 1997). Furthermore, we hold pro se
litigations such as Lee to the same performance standards as practicing
attorneys. See, e.g., Smith v. State, 822 N.E.2d 193, 203 (Ind. Ct. App. 2005),
trans. denied. Lee’s failure to provide cogent argument regarding his lawyer’s
alleged deficiency in conducting discovery waives that argument for our review.
Ind. Appellate Rule 46(A)(8)(a); Pierce v. State, 29 N.E.3d 1258, 1267 (Ind.
2015).
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[25] Waiver notwithstanding, Lee’s trial counsel testified at his PCR hearing that
she reviewed all discovery material, PCR Tr. Vol. II at 19, 24, 28, and the post-
conviction court found her testimony credible, PCR App. Vol. IV at 183. Lee
has pointed to nothing in the record to counter trial counsel’s credible
testimony. The post-conviction court did not err in finding that Lee’s trial
counsel was not ineffective for failing to adequately conduct discovery.
8. Failure to seek a separate trial from co-defendants
[26] Lee maintains that his trial counsel was ineffective for failing to object when
counsel for Lee’s co-defendant “became a second prosecutor during his closing
argument.” Appellant’s Br. at 31. Lee cites to the closing argument of Greer’s
attorney, who stated:
Now maybe as Mr. Mitchem suggested, things didn’t go as
planned. Dorian Lee decided to go and do something that was
not intended. Maybe we heard Little Vic apparently talk back to
him, and maybe Mr. Lee thought that was justification for
changing the plans and actually shooting somebody. But what
was the intent of Mr. Greer? Was he doing things knowing that
[Lee] was now serious, that these weren’t just threats to scare
these folks to intimidate them, but now Mr. Lee had changed the
scheme, it was now I am going to take somebody out. [Tr. R.
Vol. VI at 1539.] … The murder’s the same thing. Did Michael
Greer know that Dorian Lee had changed the plan? [Id. at 1540.]
... Michael Greer is the one that once some shots were fired said,
“Let’s go, let’s go.” And he left. I suggest that shows this was—
he suddenly found himself in a situation that he did not expect.
But it had suddenly become real. It wasn’t just plan and scaring
people, somebody had changed the rules, upped the ante a lot,
and he got out of there.
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Tr. R. Vol. VI at 1539-41.
[27] This is precisely the closing argument language which Lee challenged on his
direct appeal, and the issue was decided adversely to him. Lee v. State, 684
N.E.2d 1143, 1148 (Ind. 1997). And, our Supreme Court has noted the limited
nature of post-conviction relief, which does not extend to re-litigating issues that
rest on essentially the same claim that was raised on direct appeal:
The purpose of a petition for post-conviction relief is to raise
issues unknown or unavailable to a defendant at the time of the
original trial and appeal. Taylor v. State, 840 N.E.2d 324, 330
(Ind. 2006); Grey v. State, 553 N.E.2d 1196, 1197 (Ind. 1990). A
post-conviction petition is not a substitute for an appeal.
Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). Further, post-
conviction proceedings do not afford a petitioner a “super-
appeal.” Benefiel v. State, 716 N.E.2d 906, 911 (Ind. 1999), cert.
denied, 531 U.S. 830, 121 S. Ct. 83, 148 L. Ed. 2d 45 (2000). Our
post-conviction rules contemplate a narrow remedy for
subsequent collateral challenges to convictions. Williams v. State,
706 N.E.2d 149, 153 (Ind. 1999), cert. denied, 529 U.S. 1113, 120
S. Ct. 1970, 146 L. Ed. 2d 800 (2000). If an issue was known and
available but not raised on appeal, it is waived. Rouster v. State,
705 N.E.2d 999, 1003 (Ind. 1999). If an issue was raised on
direct appeal, but decided adversely to the petitioner, it is res
judicata. Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind. 1999),
cert. denied, 531 U.S. 858, 121 S. Ct. 143, 148 L. Ed. 2d 94 (2000).
The doctrine of res judicata bars a later suit when an earlier suit
resulted in a final judgment on the merits, was based on proper
jurisdiction, and involved the same cause of action and the same
parties as the later suit. Annes v. State, 789 N.E.2d 953, 954 (Ind.
2003). As a general rule, when a reviewing court decides an
issue on direct appeal, the doctrine of res judicata applies, thereby
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precluding its review in post-conviction proceedings. Ben–Yisrayl
v. State, 738 N.E.2d 253, 258 (Ind. 2000). The doctrine of res
judicata prevents the repetitious litigation of that which is
essentially the same dispute. Sweeney v. State, 704 N.E.2d 86, 94
(Ind. 1998). And, a petitioner for post-conviction relief cannot escape
the effect of claim preclusion merely by using different language to phrase
an issue and define an alleged error. State v. Holmes, 728 N.E.2d 164,
168 (Ind. 2000). “[W]here an issue, although differently
designated, was previously considered and determined upon a
criminal defendant’s direct appeal, the State may defend against
defendant’s post-conviction relief petition on grounds of prior
adjudication or res judicata.” Cambridge v. State, 468 N.E.2d 1047,
1049 (Ind. 1984) (emphasis in original).
Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006) (emphasis added).
[28] Here, Lee’s post-conviction claim that his co-defendant’s lawyer “became a
second prosecutor” during closing argument is nothing more than a rephrasing
of his argument on direct appeal; i.e., that his trial should have been severed
from his co-defendants’ trials. Our Supreme Court considered and rejected that
argument on direct appeal. Lee, 684 N.E.2d at 1148-49 (holding Lee failed to
show that he was prejudiced by the testimony and arguments of his co-
defendants during trial such that the trials should have been separated). The
post-conviction court did not err in finding that this claim was res judicata.23
23
Moreover, as the post-conviction court noted, Lee’s trial counsel “repeatedly moved to sever Lee’s trial
from that of his co-defendants,” but her motions were unsuccessful. PCR R. Vol. IV at 197. And, of course,
Lee’s appellate counsel also raised the issue on appeal. Thus, even if the claim were not res judicata, we
would not find that the post-conviction court erred in denying Lee’s claim of ineffective assistance of trial
counsel.
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9. Failure to object to admission of a firearm because it was obtained pursuant to
an illegal search
[29] Lee next asserts that his trial counsel was ineffective because she failed to object
to the admission of the firearm Lee used in the shootings. He contends that the
firearm was obtained pursuant to an unconstitutional search because it was
obtained without a warrant and the person who owned the home where it was
found had not consented to the search. However, the post-conviction court did
not err in finding that Lee lacked standing to challenge the search of the home.
[30] Fourth Amendment rights “are personal and may not be vicariously asserted.”
Peterson v. State, 674 N.E.2d 528, 532 (Ind. 1996) (quotation and citation
omitted). Therefore, “[a] defendant aggrieved by an illegal search and seizure
only through the introduction of damaging evidence secured by the search of a
third person’s premises has not had any of his Fourth Amendment rights
infringed.” Rakas v. Illinois, 439 U.S. 128, 134 (1973). The home where the
police searched and found the firearm Lee used in the shootings was owned by
the mother of Candilaria Hernandez (“Hernandez”). Lee did not live at the
home and had no other interest in the home. Therefore, he lacks standing,
under the Fourth Amendment, to challenge the search of that home or the fruits
of that search. Id.
[31] Lee also purports to raise a separate analysis of his trial counsel’s alleged
ineffectiveness for failing to object to the admission of the firearm under the
state constitution. Under Article 1, Section 11 of the Indiana Constitution, a
defendant has standing when, although he had no interest in the premises
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searched, he did have an interest in the property that was found during that
search. Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008) (“[T]he Indiana
Constitution provides protection for claimed possessions irrespective of the
defendant’s interest in the place where the possession was found.”). However,
Lee provides no record evidence or legal authority relating to this state
constitutional claim, nor does he provide any cogent argument as to how this
provision applies to him. Therefore, his claim under Article 1, Section 11 is
waived. App. R. 46(A)(8)(a); Pierce, 29 N.E.3d at 1267.
[32] Waiver notwithstanding, as the post-conviction court found, Lee has pointed to
no evidence that he had any interest in any of the firearms seized at Hernandez’
mother’s house. PCR R. Vol. IV at 186. Therefore, the post-conviction court
did not err in finding that Lee had no standing to object, under the Indiana
Constitution, to the search and seizure of the firearm and that Lee’s counsel
was not ineffective for failing to make such an objection. Wrinkles, 749 N.E.2d
at 1192 (holding trial counsel is not ineffective for failing to make an objection
that would not be sustained).
Ineffective Assistance of Appellate Counsel
[33] Lee also maintains that his appellate counsel was ineffective for failing to raise
on appeal his trial counsel’s ineffective assistance. Our Supreme Court has
described the burden a party must carry for a claim of this type:
When the claim of ineffective assistance is directed at appellate
counsel for failing fully and properly to raise and support a claim
of ineffective assistance of trial counsel, a defendant faces a
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compound burden on post[-]conviction. The post[-]conviction
court must conclude that appellate counsel’s performance was
deficient and that, but for the deficiency of appellate counsel, trial
counsel’s performance would have been found deficient and
prejudicial. Thus, Timberlake’s burden before the post[-]
conviction court was to establish the two elements of ineffective
assistance of counsel separately as to both trial and appellate
counsel. Ben-Yisrayl v. State, 738 N.E.2d 253, 261-62 (Ind.2000).
Timberlake, 753 N.E.2d at 604.
[34] Because Lee has failed to show that his trial counsel was ineffective, his claims
of ineffective assistance of appellate counsel based on a failure to raise trial
counsel’s alleged deficiency must also fail. Allen v. State, 749 N.E.2d 1158,
1168-69 (Ind. 2001) (holding that, because claimed errors by trial counsel did
not in themselves warrant relief, claims of ineffective assistance of appellate
counsel for failure to raise the alleged trial counsel errors would necessarily fail
as well). The post-conviction court did not err by concluding that Lee failed to
meet his burden of proof on this issue.
Conclusion
[35] Lee has failed to carry his burden of establishing that he is entitled to post-
conviction relief. The post-conviction court did not err when it found that
neither Lee’s trial counsel nor his appellate counsel provided ineffective
assistance to Lee.
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[36] Affirmed.
Kirsch, J., and Pyle, J., concur.
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