Daniel Demaree v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 10 2020, 6:04 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Daniel Demaree Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Demaree, March 10, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-861
v. Appeal from the Morgan Superior
Court
State of Indiana, The Honorable Stephenie Lemay-
Appellee-Respondent. Luken, Special Judge
Trial Court Cause No.
55D01-1704-PC-721
Barteau, Senior Judge.
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Statement of the Case
[1] Daniel Demaree appeals the denial of his petition for post-conviction relief. We
affirm.
Issue
[2] Demaree raises numerous issues, only one of which is preserved for our review:
whether the post-conviction court erred in rejecting his claim of ineffective
assistance of trial counsel.
Facts and Procedural History
[3] The circumstances of Demaree’s underlying convictions are as follows:
Demaree and his wife, Tracy, had three children: Ba.D., a girl
born on September 4, 1997, Br.D., a girl born on February 22,
2001, and a boy, L.D. Demaree began touching Ba.D.
inappropriately when she was about nine or ten years old. He
was a truck driver, and the first time he touched her, they were
on a “run” together in his truck in New York.
The first time Demaree molested Ba.D. at home, she was in third
grade. He pulled Ba.D. into his bedroom and made her take off
her clothes and get on the floor, face down, with her legs spread
open. Demaree’s pants were unzipped, and Ba.D. felt something
happening to the inside of her “butt,” which really hurt. Ex. 12A
p. 44–45. Afterwards, she felt something cold and wet on her
“butt,” which Demaree wiped off with a rag. Ba.D. was unable
to go to the bathroom afterwards “because it burned.” Id. at 49.
Demaree continued to touch Ba.D. on many occasions. Most of
the time, he touched her “butt” with his penis. Tr. p. 362, 365–
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66. On one occasion, he touched her vagina with his penis and
moved his penis around. More than once, Demaree touched the
inside of Ba.D.’s vagina with his tongue, causing her pain. These
incidents occurred on the floor in Demaree’s bedroom. Before
the acts, Demaree put lotion on his penis; afterwards, he always
put the rags he used to wipe himself and Ba.D. in the washing
machine immediately. The last time Demaree molested Ba.D.
was about a month before her eleventh birthday. As a result of
the molestations, Ba.D. developed hemorrhoids and a rash.
Ba.D.’s younger sister, Br.D., was usually home when the
molestations occurred. Ba.D. knew that Demaree also molested
her sister, because Br.D. went to Ba.D. afterwards, crying, and
told her what had happened. Demaree touched Br.D.’s “front
private part” with his pinkie and his tongue. Tr. p. 408–09. He
also touched her “butt” with his “dick” and his tongue; at one
point putting his “dick” inside Br.D.’s “butt,” causing her pain.
Id. at 410, 421. These incidents also occurred in Demaree’s
bedroom.
On occasions, Demaree told the girls that they would have to
choose which one would go with him, or he would take both of
them. He gave Ba.D. money to do things with him and told her
not to tell; he gave Br.D. licorice as a bribe.
Demaree v. State, Cause No. 55A01-1005-CR-295, *1 (Ind. Ct. App. Feb. 10,
2011) (Demaree I). The State charged Demaree with numerous child molesting
related offenses. After a jury trial, the trial court entered judgments of
conviction determining that the jury had found Demaree guilty of five counts of
child molesting, all Class A felonies. The trial court imposed a total sentence of
120 years.
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[4] Demaree appealed, challenging the admission of certain evidence and the
appropriateness of his sentence pursuant to Appellate Rule 7(B). The Court
affirmed Demaree’s convictions and sentence. Id. at *4.
[5] On April 5, 2017, Demaree filed a petition for post-conviction relief. He later
amended the petition with leave of court, and the State filed a response. The
post-conviction court held an evidentiary hearing over several nonconsecutive
days. On March 21, 2019, the trial court issued findings of fact, conclusions
thereon, and an order denying Demaree’s petition. This appeal followed.
Discussion and Decision
1. Standard of Review
[6] Post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Rose v.
State, 120 N.E.3d 262, 266 (Ind. Ct. App. 2019), trans. denied. A petitioner
bears the burden of establishing an entitlement to relief during post-conviction
proceedings. Pierce v. State, 135 N.E.3d 993, 1002 (Ind. Ct. App. 2019). The
petitioner has an “affirmative duty to present evidence sufficient” to prove a
right to relief and “may not rely on matters outside the record of the post-
conviction hearing.” Henry v. State, 170 Ind. App. 463, 466, 353 N.E.2d 482,
484 (1976).
[7] “A petitioner who has been denied post-conviction relief faces a rigorous
standard of review.” DeWitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). We will
not disturb the post-conviction court’s denial of relief unless the evidence is
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without conflict and leads to but one conclusion, and the post-conviction court
reached the opposite conclusion. West v. State, 938 N.E.2d 305, 309 (Ind. Ct.
App. 2010), trans. denied. We accept the post-conviction court’s findings of fact
unless they are clearly erroneous. Id. Further, we consider only the probative
evidence and reasonable inferences therefrom that support the post-conviction
court’s determination, and we will not reweigh the evidence or judge witness
credibility. Id.[8] Demaree is proceeding pro se. Pro se litigants without legal training are held to
the same standard as trained counsel and are required to follow procedural
rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
Consequently, pro se litigants must be prepared to accept the consequences for
failing to follow the rules. Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App.
2016), trans. denied.
2. Waiver
[9] In the “Statement of the Issues” and “Summary of the Argument” sections of
his appellant’s brief, Demaree raises claims pertaining to his 120-year sentence,
ineffective assistance of trial counsel, ineffective assistance of appellate counsel,
and newly discovered evidence. Appellant’s Br. pp. 5-8, 19-21. By contrast, the
“Argument” section of Demaree’s brief substantively addresses only his claim
of ineffective assistance of trial counsel.
[10] We will consider Demaree’s claim of ineffective assistance of trial counsel, but
Demaree has waived his other claims by failure to provide cogent argument
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supported by citation to authority. See Ind. Appellate Rule 46(A)(8)(a)
(allegations of error must be supported by “cogent reasoning” and citation to
authorities and the record); see also Bigler v. State, 732 N.E.2d 191, 196 (Ind. Ct.
App. 2000) (claim waived because it was presented in one sentence, without
argument and citation to authority), trans. denied.
[11] Before we turn to Demaree’s allegations of ineffective assistance of trial
counsel, we note that prior to and during the evidentiary hearing, he did not ask
the post-conviction court to take judicial notice of the trial record or the record
1
on appeal from Demaree I. In addition, during the post-conviction hearing he
did not attempt to offer documents from the trial record or the record on appeal,
or any other documentary evidence, as exhibits. Instead, Demaree, who
participated in the hearing by telephone, purported to read from the transcripts
while questioning witnesses.
[12] Earlier in this appeal, the Court granted Demaree’s motion to transfer the
record on appeal from Demaree I to the current appeal, but denied his motion to
2
take judicial notice. We will not review the post-conviction court’s judgment
1
The Chronological Case Summary indicates that Demaree filed a number of documents with the post-
conviction court on November 7, 2017, well before the special judge took jurisdiction over this case. During
the evidentiary hearing, he did not ask the post-conviction court to take judicial notice of those documents or
otherwise seek to authenticate them as exhibits. Also, in Demaree’s proposed findings of fact and
conclusions of law, which he submitted after the evidentiary hearing had concluded, he asked the post-
conviction court to take judicial notice of only one potential juror’s statement in the voir dire transcript.
2
In his appellant’s brief, Demaree renews his request for this Court to take judicial notice of the trial
transcript and the record from Demaree I. We deny his request.
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using evidence that was not presented to the post-conviction court, so we have
not considered the appellate record from Demaree I in this appeal.
3. Ineffective Assistance of Trial Counsel
[13] We analyze claims of ineffective assistance of trial counsel according to the
two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). As the Indiana Supreme Court has explained:
First, we require the defendant or petitioner to show that, in light
of all the circumstances, the identified acts or omissions of
counsel were outside the wide range of professionally competent
assistance. This showing is made by demonstrating that
counsel’s performance was unreasonable under prevailing
professional norms. Second, we require the defendant or
petitioner to show adverse prejudice as a result of the deficient
performance. We will find prejudice when the conviction or
sentence has resulted from a breakdown of the adversarial
process that rendered the result unreliable.
Emerson v. State, 695 N.E.2d 912, 918 (Ind. 1998) (citations omitted). “[W]e do
not need to determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Little v. State, 819 N.E.2d 496, 501 (Ind. Ct. App. 2004), trans. denied.
[14] “Judicial scrutiny of counsel’s performance must be highly deferential.”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. As a result, “counsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690, 104
S. Ct. at 2066. Whether a defendant received ineffective assistance of counsel is
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a fact-sensitive determination requiring review of the original trial record.
Mitchell v. State, 946 N.E.2d 640, 644 (Ind. Ct. App. 2011), trans. denied.
a. Jury Selection
[15] Demaree argues that his trial counsel should have sought to remove several
potential jurors from the panel, claiming they demonstrated bias against him.
Specifically, one of the potential jurors, a schoolteacher, allegedly stated she
knew that Demaree brought a gun to school as a youth. Also, two other
potential jurors were allegedly married to one another.
[16] Demaree did not submit the jury selection transcript to the post-conviction
court during the evidentiary hearing or ask the court to take judicial notice of
the transcript. As a result, we are unable to review his claim. See Mitchell, 946
N.E.2d at 645 (panel unable to address Mitchell’s claim of ineffective
assistance; Mitchell did not present trial record during post-conviction hearing).
In any event, during the post-conviction hearing, Demaree’s trial attorney
stated, “if I thought we had a biased juror, then I would have either asked the
Judge to strike her for cause or exercised a peremptory.” Tr. Vol. 2, p. 46.
Demaree has failed to demonstrate that the post-conviction court erred on this
issue.
b. Conflict of Interest
[17] Demaree claims his trial counsel revealed during jury selection that he could
not be impartial given the nature of the case, which established a conflict
between counsel and his client. Once again, Demaree did not provide the jury
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selection transcript to the post-conviction court during the hearing. Further, he
did not ask his trial attorney about this issue during the post-conviction hearing.
In the absence of any evidence to support his claim, the post-conviction court
did not err in rejecting it.
c. Jury Selection Transcript
[18] Demaree’s trial counsel filed the Notice of Appeal for his direct appeal.
Demaree alleges that when counsel requested a transcript of the trial, he
explicitly directed the court reporter to not prepare a transcript of the jury
selection process. Demaree argues that counsel’s failure to request a complete
transcript of the trial hindered his appellate counsel and deprived him of his
constitutional rights.
[19] Demaree did not submit the Notice of Appeal or the jury selection transcript to
the post-conviction court during the hearing or ask the court to take judicial
notice of those documents. Demaree’s trial counsel testified he did not request
a jury selection transcript because he “didn’t see any appealable issues arising
out of voir dire.” Id. at 35. Counsel made a strategic decision as to what claims
were valid, and Demaree has failed to present evidence to establish that
counsel’s decision was deficient. He has failed to demonstrate the post-
conviction court erred.
d. Exculpatory Evidence
[20] Demaree claims his trial counsel failed to obtain his mobile phone records and
driver log from the prosecutor, and those items would have established that he
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was out of the state on the date that one of the molestations was alleged to have
occurred. “While it is undisputed that effective representation requires
adequate pretrial investigation and preparation, it is well settled that we should
resist judging an attorney’s performance with the benefit of hindsight.”
McKnight v. State, 1 N.E.3d 193, 200 (Ind. Ct. App. 2013). As a result,
“establishing failure to investigate as a ground for ineffective assistance of
counsel requires going beyond the trial record to show what investigation, if
undertaken, would have produced.” Id. at 201.
[21] Demaree did not offer the phone records or driver log as exhibits at the post-
conviction hearing. Without them, the post-conviction court, and this Court,
are unable to determine whether the outcome of the trial would have changed if
counsel had timely obtained those documents for use at trial. Demaree has
failed to establish reversible error.
e. Transcript of Child’s Interview
3
[22] For his final substantive point of error, Demaree claims his trial counsel should
have objected to the admission into evidence of a transcript of child’s interview
at “Susie’s Place.” Appellant’s Br. p. 30. He claims that during the interview,
the child identified a date when Demaree molested her, but his phone records
and driver log would have demonstrated that he was out of the state on that
3
As an additional claim of ineffective assistance of trial counsel, Demaree also argues, in passing, that trial
counsel should have sought to prove “the identities of [an] unknown male and unknown individual.”
Appellant’s Br. p. 25. He provides no cogent argument or citation to authority in support of this argument,
and it is waived. Ind. Appellate Rule 46(A)(8)(a).
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date. As a result, Demaree claims the transcript would not have been admitted,
if counsel had objected to it, because it contained falsehoods. When a
petitioner alleges ineffective assistance of counsel for failure to raise an
objection, the petitioner must demonstrate that, had a proper objection been
made, “the trial court would have had no choice but to sustain the objection.”
McAfee v. State, 459 N.E.2d 1186, 1188 (Ind. 1984).
[23] Once again, Demaree did not submit the phone records, driver log, or transcript
to the post-conviction court, thereby failing to provide any evidence to support
his claim. Further, even if Demaree had provided the missing documents to the
post-conviction court, and even if we were to assume for the sake of argument
that statements in the interview transcript were inconsistent with information in
Demaree’s driver log and phone records, any inconsistency would not
necessarily have resulted in the exclusion of the transcript from evidence.
“[C]onflicts [in the evidence presented] serve as a basis for attacking the
credibility of the witnesses and the weight to be given their testimony,” but the
resolution of such conflicts is a question for the jury. Taylor v. State, 171 Ind.
App. 476, 477, 358 N.E.2d 167, 169 (1976). The trial court thus may have
allowed the interview transcript into evidence and allowed the jury to resolve
any inconsistencies. We cannot conclude that the trial court would have had
no choice but to sustain counsel’s objection to the transcript, if one had been
made. Demaree has failed to establish reversible error.
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Conclusion
[24] For the reasons stated above, we affirm the judgment of the trial court.
[25] Affirmed.
Baker, J., and Brown, J., concur.
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