Charles P. White v. State of Indiana , 2014 Ind. App. LEXIS 637 ( 2014 )

FOR PUBLICATION
Dec 29 2014, 10:13 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREA L. CIOBANU GREGORY F. ZOELLER
ALEX BEEMAN Attorney General of Indiana
Ciobanu Law, P.C.
Indianapolis, Indiana JUSTIN F. ROEBEL
LARRY D. ALLEN
Deputy Attorneys General
Indianapolis, Indiana
GARY D. SECREST
Assistant Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARLES P. WHITE )
)
Appellant-Defendant )
)
vs. ) No. 29A05-1312-PC-641
)
STATE OF INDIANA )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven R. Nation and Daniel J. Pfleging, Judges
Cause Nos. 29D01-1103-FC-3107 and 29D02-1303-PC-2053
December 29, 2014
OPINION – FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Four months after Charles “Charlie” P. White was elected Indiana Secretary of
State, a Hamilton County grand jury indicted him on seven felonies, including theft,
perjury, and voter fraud. The charges arose from White’s conduct while he was a member
of the Fishers Town Council and a candidate for Secretary of State; specifically, he
purchased a townhome outside his district but kept his town-council position; submitted a
form to the Hamilton County Board of Voter Registration that changed his address from
his apartment to his ex-wife’s house, which was located inside his district; voted in the
May 2010 primary election using his ex-wife’s address; and applied for a marriage license
using his ex-wife’s address. Former Marion County Prosecutor Carl Brizzi defended White
at trial. A jury convicted White of six of the seven counts, and the trial court sentenced
him to one year of electronic home monitoring. His sentence was stayed pending appeal.
White utilized the Davis-Hatton procedure to temporarily suspend his direct appeal
and seek post-conviction relief in the trial court. The trial court denied White’s request for
post-conviction relief, which alleged, among other things, that Attorney Brizzi was
ineffective. White’s reinstated direct appeal and the appeal of the denial of post-conviction
relief are now before us.
We divide White’s claims into direct-appeal and post-conviction issues, and we
ultimately conclude that three of White’s convictions must be vacated. As the State
2
concedes, two of the convictions violate double-jeopardy principles. As for the third
conviction, the perjury charge against White should have been dismissed because it was
based on White’s street address, which was not material to his marriage-license
application—only the county of residency is material. As for White’s post-conviction
claims, we conclude that Attorney Brizzi was not ineffective. We affirm in part, reverse
in part, and remand with instructions.
Facts and Procedural History
White and Nicole White (now Mills) were married in 1998, and they have one son
who was born in 2001. State’s Ex. 39. White and Nicole lived together at 7527 Broad
Leaf Lane in Fishers (“Broad Leaf”), which is in Hamilton County, Delaware Township,
Precinct 12. White was an attorney1 for the Indiana Department of Natural Resources
(“DNR”); he was also the Hamilton County Republican Party Chairman and a member of
the Fishers Town Council, representing District 2.2 Tr. p. 917. White made approximately
$1000/month as a town-council member. State’s Ex. 34.
In December 2006 White and Nicole divorced, and they shared joint custody of their
son. Id. Nicole remained at Broad Leaf with their son, while White moved to an apartment
at 6994 Pintail Drive in Fishers (“the Pintail apartment”), which was in Delaware
Township, Precinct 14. Like Broad Leaf, the Pintail apartment was located within the
1
As a result of White’s convictions in this case, the Indiana Supreme Court suspended White from
the practice of law in April 2012. The Court later granted White’s request for a stay “pending resolution
of post-conviction relief proceedings and appeals relating to the criminal convictions at issue.” In re
Charles P. White, 49S00-1203-DI-156 (Ind. Nov. 1, 2012). Justice Massa did not participate.
2
In 2012 the residents of Fishers voted to become a city. On November 17, 2014, the Fishers Town
Council approved an ordinance for the transition from the Town of Fishers to the City of Fishers. Fishers
Town Council Adopts City Transition Ordinance, FISHERS.IN.GOV,
http://www.fishers.in.us/CivicAlerts.aspx?AID=278 (last visited Dec. 22, 2014).
3
district that White represented, District 2. Approximately one month after the divorce,
White conveyed his interest in Broad Leaf to Nicole via quitclaim deed. State’s Ex. 40.
About two years after the divorce, in November 2008, White began dating Michelle
Quigley, and they later became engaged. P-C App. p. 926.
In January 2009 White formed a campaign committee aimed at his candidacy for
Indiana Secretary of State. P-C Tr. p. 572. The duties of the Secretary of State, the third
highest-ranking office in state government, include oversight of state elections. Indiana
Secretary of State, About the Office, IN.GOV, http://www.in.gov/sos/2362.htm (last
visited Dec. 21, 2014). White traveled approximately every other day while campaigning,
sleeping at night in people’s homes and hotels across the state. P-C Tr. p. 572-73.
White moved out of the Pintail apartment in May or June 2009. He notified the
Town of Fishers to change his address to Broad Leaf, where his ex-wife and son still lived.
State’s Ex. 54.
In September 2009 White executed a purchase agreement and placed a deposit for
the purchase of a townhome at 13086 Overview Drive in Fishers (“Overview”). State’s
Ex. 1, 2, & 16. Notably, Overview was located in Fall Creek Township, Precinct 5—not
in White’s town-council district. State’s Ex. 54. Because White had problems getting
approved for a mortgage, on November 5, 2009, he signed a lease for Overview until he
could get an FHA mortgage for the townhome; the lease term began November 13, 2009.
State’s Ex. 17; Tr. p. 715-16, 772. White was the only tenant listed on the lease, and the
lease agreement prohibited assignment and subletting of the lease without the prior written
consent of the landlord/builder. State’s Ex. 17. According to the lease, all notices
4
concerning the townhome were to be sent to White at Overview. Id. When White executed
the lease, he told the landlord/builder that “he was living in his ex-wife’s basement,” but
White gave no indication that he would not be moving into the townhome. Tr. p. 776-77.
A special election was held in Hamilton County on November 10, 2009, regarding
the Hamilton Southeastern School Corporation. State’s Ex. 43. White voted in person at
the Precinct 14 (the Pintail apartment) polling site. Id. He indicated in the poll book,
however, that his address had changed from the Pintail apartment to Broad Leaf located in
Precinct 12. Id.
White signed a mortgage application for Overview on January 28, 2010. On the
documents, he listed Overview as his “Present” and “Mailing” addresses and Broad Leaf
as his “Former” address. State’s Ex. 22. White wrote that he had been living at Overview
for “.2” years, or approximately 2.4 months. Id. When White left his job at DNR in
February 2010, he told DNR to mail his final paycheck to Overview. State’s Ex. 38.
On February 22, 2010, White filed an address change with the Hamilton County
Board of Voter Registration indicating that his address had changed from the Pintail
apartment to Broad Leaf.3 State’s Ex. 46.
White signed another mortgage application for Overview on February 26, 2010, and
again claimed to have been living there for .2 years. State’s Ex. 22. The main difference
between the January and February applications was the addition of Krieg DeVault LLP as
3
This conduct led to White being charged with and ultimately convicted of Count 1 (submission
of a false, fictitious, or fraudulent voter’s registration application) and Count 2 (perjury).
5
White’s new employer, as White had begun working there February 1.4 State’s Ex. 14 &
22. Also on February 26, White executed closing and financing documents for Overview,
including two Occupancy Statements required by FHA indicating that White either
occupied or would occupy Overview as his “primary residence” within thirty or sixty days.
State’s Ex. 24 & 25.
On May 4, 2010, more than sixty days after White closed on the Overview
townhome, White voted in the primary election in Precinct 12 using his ex-wife’s address
at Broad Leaf—not the Overview address located in Precinct 5—and wrote in the poll book
that his address was “Unchanged.”5 State’s Ex. 47. The next week, on May 11, White
filed his Declaration of Candidacy with the Indiana Republican Party, stating that he was
seeking the nomination at the 2010 Republican State Convention for the Office of Indiana
Secretary of State. State’s Ex. 50. He listed Broad Leaf as his residence. Id.
On May 18, 2010, White again listed Broad Leaf as his “Residence Address” when
submitting an application to marry Michelle. State’s Ex. 52 (“State of Indiana Application
for Marriage License”). The application also requested a “New Address,” and White listed
Overview. Id. Michelle listed her parents’ address on Farragut Circle in Fishers as her
“Residence Address” and Overview as her “New Address.” Id. White and Michelle were
married over Memorial Day weekend 2010. State’s Ex. 53.
4
Krieg DeVault sent its offer of employment to White at Overview, and White provided Krieg
DeVault with Overview as his address for purposes of payroll and his federal I-9 form. State’s Ex. 11, 14;
see also Tr. p. 758.
5
This conduct led to White being charged with and ultimately convicted of Count 4 (voting in other
precinct) and Count 5 (procuring, casting, or tabulating a false, fictitious, or fraudulent ballot).
6
In June 2010 White received the Republican Party’s nomination as candidate for
Secretary of State. State’s Ex. 49. On June 22, 2010, the Republican Party submitted its
certification of nomination—listing White as the party’s candidate for Secretary of State—
with the Indiana Election Commission. Id. The form listed Overview as White’s residence
and Broad Leaf as his mailing address. Id.
On September 21, 2010, while White was campaigning for Secretary of State, a
former Democratic candidate for the Fishers Town Council held a news conference to call
for White to withdraw from the race for Secretary of State because he used his ex-wife’s
address to vote in the May 2010 primary. State’s Ex. 54. The former candidate also said
a special prosecutor should be appointed to determine if White’s actions were criminal and
demanded that White repay the money he had earned as a town-council member while
living outside his district. Id. White immediately stepped down from his position on the
Fishers Town Council. Id. Following his resignation, White agreed to return the
compensation he had received after becoming ineligible to serve. The deputy town
treasurer helped White calculate the amount of money that he owed the Town of Fishers.
Tr. p. 882; State’s Ex. 34 & 35. White paid back a total of $5142.88, which reimbursed
the Town of Fishers for compensation that he had received since mid-April 2010. State’s
Ex. 34 & 35.
On September 22, 2010, the day after White resigned, he submitted a voter-
registration application changing his address from Broad Leaf to Overview. State’s Ex.
48.
7
White ultimately won the November 2010 general election for Secretary of State,
defeating his Democratic Party opponent Vop Osili by more than 300,000 votes. White v.
Ind. Democratic Party ex rel. Parker, 963 N.E.2d 481, 484 (Ind. 2012). On November 19,
2010, Daniel Parker, the chairperson of the Indiana Democratic Party, filed a verified
petition for election contest with the Indiana Election Division. The petition alleged that
White was not qualified to assume the office of Secretary of State because he was not
registered to vote at the address where he resided as of July 15, 2010—the deadline for the
Republican Party to file its certificate of nomination—in accordance with Indiana Code
section 3-8-1-1(b)(1). Id. The Recount Commission held a hearing and received evidence,
and in June 2011 it determined that White was eligible to run as a candidate for Secretary
of State in 2010. Id. at 485. In December 2011 the Marion Circuit Court reversed the
Recount Commission, but in March 2012 our Supreme Court affirmed the Recount
Commission. Id. at 489-90.6
6
Our Supreme Court reasoned:
Our conclusion is that the Code places a burden on political campaigns to investigate and
vet their opposition before the pre-election time limitations expire, but that is better than
the alternative: that a challenger might ignore a known (or knowable) disqualification
challenge before the election, wait to see who won at the polls, and then seek to set aside
the results of the democratic process. Such a result is inconsistent with free elections and
respect for voters’ expressed preferences.
Here, the allegations of White’s registration impropriety arose before the election and were
made public by private citizens, the media, and by the Osili campaign and by the
Democratic Party. It is likely that the average voter was aware that there were concerns
about White’s voter registration history at the time of the election, but we will not, on the
basis of the present petition, judicially disenfranchise voters who went to the polls aware
of what were at that moment only allegations. The fact that criminal charges were filed
after the election and resulted in convictions (appeals still pending) does not alter that
conclusion.
White, 963 N.E.2d at 489-90.
8
In the meantime, citing conflict, the Hamilton County Prosecutor at the time
petitioned for the appointment of a special prosecutor. The trial court appointed three
special prosecutors—John E. Dowd, Daniel J. Sigler Sr., and Daniel J. Sigler Jr.—to
investigate White’s voting and voter registration.
A grand jury was convened in Hamilton County, and in March 2011 it indicted
White on the following seven counts:
 Count 1: Class D felony submission of a false, fictitious, or fraudulent voter’s
registration application for “knowingly or intentionally sending a voter
registration change[-]of[-]address form to the Hamilton County Board of
Voter Registration [in February 2010] representing his new address was 7527
Broad Leaf Lane . . . when he knew he was or would be living at 13086
Overview Drive . . . at the time of the next election (May Primary 2010).”
 Count 2: Class D felony perjury for “knowingly or intentionally making a
false material statement under oath or affirmation knowing the statement to
be false or not believing it to be true . . . on his State Voter’s Registration
Change Form [in February 2010] stating his residence was changing from
6994 Pintail Drive . . . to 7527 Broad Leaf Lane . . . when in fact at the time
of making said statement he was residing at 13086 Overview Drive . . . .”
 Count 3: Class C felony fraud on a financial institution regarding documents
he executed at his February 2010 mortgage closing.
 Count 4: Class D felony voting in other precinct in May 2010 for “knowingly
or intentionally voting in Delaware Township Precinct 12 indicating his
residence was 7527 Broad Leaf Lane . . . when in fact he resided at the time
at 13086 Overview Drive . . . , which is located in Fishers Fall Creek
Township Precinct 5.”
 Count 5: Class D felony procuring, casting, or tabulating a false, fictitious,
or fraudulent ballot in May 2010 for “knowingly or intentionally casting a
vote . . . in the Delaware 12 Precinct when he was residing in . . . Fall Creek
Township No. 5 Precinct (13086 Overview Drive).”
 Count 6: Class D felony perjury in May 2010 for “knowingly or intentionally
making a false material statement under oath or affirmation, knowing the
statement to be false or not believing it to be true, [by] stating on his
marriage[-]license application to the Hamilton County Clerk’s Office and
9
made under affirmation of the truth thereof, that his residence was 7527
Broad Leaf Lane . . . when it was 13086 Overview Drive . . . .”
 Count 7: Class D felony theft for “taking his pay as a City Council member
for Fishers Council District 2 during the period of approximately November
5, 2009[,] through September 28, 2010, when he did not reside in said Fishers
Town council district.”
Appellant’s App. p. 74-86.
After firing his first lawyer, White hired former Marion County Prosecutor Carl
Brizzi to represent him at trial. In September 2011 White filed a motion to dismiss the
charges against him. See id. at 210-35. In his motion to dismiss, White challenged the
authority and conduct of the special prosecutors, alleged double jeopardy with respect to
certain charges,7 and contested the validity of other charges, including theft and perjury.
See id. With respect to the theft charge, White argued, among other things, that “he was at
all relevant times, entitled to hold-over his official position[] until his [town-council]
successor was identified and qualified to assume the office, and as such was entitled to
benefits and privileges of the office,” including his monthly town-council salary. Id. at
226. As to the perjury charge, White argued that his address, as provided on his marriage-
license application, was not material as required for a perjury charge. Id. at 222-24.
The trial court, the Honorable Steven R. Nation, disposed of White’s motion-to-
dismiss claims in two written orders. First, in an order dated November 16, 2011, Judge
Nation rejected White’s arguments regarding the special prosecutors’ authority and
7
White argued that Counts 1 and 2 and Counts 4 and 5 violated Indiana’s Double Jeopardy Clause.
See Appellant’s App. p. 231-34. The Honorable Steven R. Nation disagreed, saying only: “Contrary to
[White’s] allegation concerning the Double Jeopardy Clause, the Court can find no basis for such contention
for the reason that jeopardy has not attached to [White].” Id. at 383.
10
conduct.8 Id. at 330-36. In a second order dated December 19, 2011, Judge Nation
dismissed White’s remaining claims, stating, in relevant part:
Contrary to [White’s] allegation concerning Count 6, Perjury, his sworn
statement as to his residence is material. The Court finds that as a matter of
law, the legislature, pursuant to [Indiana Code section] 31-11-4-4 has
determined that residence is a question to be answered on the application for
marriage. Therefore the legislature has determined that residence is material
to such application.
* * * * *
Contrary to White’s allegation [regarding the theft charge] that his de facto
status operated as an absolute bar to felony prosecutions, the Court can find
no basis for such a contention.
* * * * *
[C]oncerning any other allegation of [White] not specifically discussed by
the Court, the Court finds there is no sufficient basis for the dismissal of the
indictments.
Therefore, [White’s] Motion to Dismiss should be and is hereby DENIED.
Id. at 383-84.
A five-day jury trial was held in January-February 2012. The State’s theory at trial
was that White continued to take his $1000/month town-council salary even though he no
longer resided in District 2 because he needed the money. See Tr. p. 679 (State’s opening
statement: “While [White] made a decent salary with the DNR . . . about $75,000 more or
less a year, supplemented by a $1,000 a month stipend from the Town of Fishers, gross,
for serving as a councilman, he was not, and the evidence will show, . . . in great financial
shape. Like many people he was living month to month. He had a laundry list of bills. He
had a subpar credit rating, and he had little or no cash with which to purchase a home. He
8
We do not discuss Judge Nation’s reasoning on this issue because White does not renew this
challenge on appeal.
11
gave up his apartment . . . in order to save some money . . . .”). As for the defense theory,
Attorney Brizzi wanted to convince the jury that this case was “not about some
Machiavellian family who conspired to cover up the alleged move so Charlie could
continue to receive his $1000 per month stipend.” P-C Tr. p. 290. Attorney Brizzi had
intended to call some witnesses to establish that White was living at Broad Leaf, but when
problems arose during trial, he switched strategies and argued that the State had not met its
burden of proof. Id. at 285.
Nicole’s next-door neighbor at Broad Leaf testified for the State at trial.
Specifically, he testified that White moved out in 2006 as part of the divorce. Tr. p. 821-
22, 828. After White moved out, the neighbor did not see White living at Broad Leaf and
did not see White’s car parked at Broad Leaf overnight. Id. at 824-25, 835.
The State presented utility records from Overview, indicating that White had put the
electricity and water bills in his name in November and December 2009 and received those
bills at Overview. State’s Ex. 41 & 42; Tr. p. 902-04. The State also presented White’s
voting records, candidate filings, his and Michelle’s marriage-license application, and their
marriage license. State’s Ex. 43-52; Tr. p. 902-04. In addition, the State presented an
article from The Indianapolis Star, wherein White acknowledged “splitting time” between
his ex-wife Nicole’s home on Broad Leaf and his new townhome on Overview beginning
in November 2009. State’s Ex. 54 (Carrie Ritchie, GOP Secretary of State Candidate
Downplays Residency, Voting Controversy, Indianapolis Star, Sept. 22, 2010); Tr. p. 910.
In the article, White said he then moved into Overview in March 2010, which was before
the primary election in May 2010. State’s Ex. 54. White blamed his busy schedule for
12
failing to (1) notice that Overview was outside his town-council district and (2) change his
voter registration to reflect his new address on Overview. Id.
Finally, the State presented evidence about White’s cell-phone usage in order to
prove that he was living at Overview. Tr. p. 918-19, 963-64. This evidence consisted of
600 pages of 30,000 phone calls and text messages from White. State’s Ex. 56. An
employee from Sprint testified that Sprint’s Tower 074 is 0.75 miles from Overview, while
Sprint’s Tower 07 is 0.5 miles from Broad Leaf. The distance between the two homes is
6.75 miles “as the crow flies.” Id. at 919. The effective range of each tower is
approximately two miles or less. Id. at 960. The Sprint records indicated a “hit” each time
a call started or ended from Tower 074 or 07. From November 13, 2009, to May 28, 2010,
Sprint recorded 1366 hits from White’s cell phone on the tower near Overview—but only
382 hits from the tower near Broad Leaf. State’s Ex. 58. During overnight hours of 6:00
p.m. to 7:59 a.m. for the same time period, Sprint recorded 530 hits for the tower near
Overview and 66 hits for the tower near Broad Leaf. Id. Sprint’s witness acknowledged
that the records did not show the caller’s exact location but rather the “general area.” Tr.
p. 969.
At the conclusion of the State’s case-in-chief, the defense abruptly rested without
presenting any evidence. Id. at 978. Attorney Brizzi wanted to catch the State “off guard.”
P-C Tr. p. 257. After approximately thirteen hours of deliberation, the jury found White
guilty of Counts 1, 2, 4, 5, 6, and 7 and not guilty of Count 3 (fraud on a financial
institution). The trial court sentenced White to one year on electronic home monitoring
but stayed the sentence pending appeal. Appellant’s App. p. 14. As a result of White’s
13
convictions, Governor Mitch Daniels appointed Connie Lawson as the new Secretary of
State. Press Release, Governor Appoints Senator Connie Lawson as New Secretary of
State (Mar. 16, 2012), http://goo.gl/Tw5RbO.
White initiated a direct appeal under Cause No. 29A05-1203-CR-123. In September
2012 this Court dismissed White’s direct appeal without prejudice so that he could pursue
post-conviction relief. See White v. State, Cause No. 29A05-1203-CR-123 (Ind. Ct. App.
Sept. 7, 2012) (“This Court DISMISSES THIS APPEAL WITHOUT PREJUDICE so that
[White] may pursue post-conviction relief before the trial court. If any part of the trial
court’s forthcoming ruling on [White’s] petition for post-conviction relief is adverse to
[White], [White] may, after filing a new notice of appeal, raise the issues he would have
raised in this appeal along with the new issues created by the trial court’s ruling on the
petition for post-conviction relief.”).
In March 2013 White, now represented by Attorney Andrea Ciobanu, filed a petition
for post-conviction relief, which was later amended. White also requested a change of
judge, which the court granted, and Judge Daniel J. Pfleging was appointed.
In his petition, White raised eight freestanding claims and eight claims of ineffective
assistance of trial counsel; White also alleged that “[m]aterial facts existed which were not
previously presented or heard that require vacation of [his] conviction[s].” P-C App. p.
1004-05. The State filed a motion for summary disposition as to the eight freestanding
claims, which the post-conviction court granted. Id. at 1851. The court also summarily
denied White’s ineffective-assistance-of-counsel claims regarding trial counsel’s (1)
failure to tender proposed instructions and failure to object to the State’s instructions, (2)
14
failure to file a motion to correct errors, and (3) failure to adequately cross-examine the
State’s witnesses. Id. at 1851-52.
An evidentiary hearing was held on the remaining claims over the course of three
days. In support of his ineffective-assistance-of-counsel claims, White presented several
witnesses, including White himself, Attorney Brizzi, his ex-wife Nicole, Nicole’s new
husband Bill Mills, White’s new wife Michelle, and a potential expert witness on cellular
phones, Ryan Harmon.
White testified at the post-conviction hearing that he wanted to testify at trial, but
he did not insist on testifying and eventually relented to Attorney Brizzi’s decision not to
present any evidence at trial. P-C Tr. p. 533, 609, 641-42. According to White, he moved
out of the Pintail apartment in late May/early June 2009; he then moved into Nicole and
Bill’s home on Broad Leaf and stayed there until after his wedding on May 28, 2010. Id.
at 544-45, 563, 570. White testified that during that time he had “complete 100 percent
access” to Broad Leaf. Id. at 552. According to White, he leased Overview for his then-
fiancée Michelle and her children. Id. at 562-63, 565-66. He said he did not live at
Overview before they were married “to respect [Michelle’s] wishes.” Id. at 563. White
admitted to voting in the May 2010 primary in Hamilton County but claimed that he used
a MicroVote Infinity electronic voting system, which is a direct-record machine that does
not use ballot labels. Id. at 572. White explained that ballot labels, which were previously
used in electronic voting machines, were no longer produced. Id. Accordingly, he claimed
that he did not cast a “ballot” as currently defined by Indiana law. Id.
15
Attorney Brizzi testified that he “spent hundreds and hundreds and hundreds of
hours on this case.” Id. at 219. His efforts included conducting research, filing a motion
to dismiss and a request for an interlocutory appeal, garnering stipulations from the State
for several binders of potential exhibits, speaking to potential witnesses, conducting a
deposition, reviewing transcripts from the grand jury and Recount Commission, and testing
potential defenses with an informal focus group. Attorney Brizzi testified that he decided
not to present Michelle, Nicole, or Bill as witnesses because Michelle admitted during
witness preparation that White did not live at Broad Leaf:
When I was attempting to prepare Michelle for cross examination – this was
48 to 72 hours before the close of evidence – she blurted out in response to a
fairly aggressive cross examination question by me, that Charlie really didn’t
live there, live there referring to . . . Nicole’s house, on Broad Leaf. And
when pressed further, . . . it was a pretty emotional time during the Overview
condo—me, Charlie, and Michelle—and I looked at Charlie, and I said, “If .
. . that happens on cross, you’re sunk.” And at that time, we decided that we
not only couldn’t call Michelle, but that we couldn’t call Nicole or her
husband.
Id. at 208; see also id. at 291 (Attorney Brizzi testifying that he thought he was “ethically
prohibited” from calling Michelle as a witness). Attorney Brizzi also decided not to call
White as a witness because he did not think he could control White’s testimony on the
stand, which would have “been, in [his] professional opinion, a disaster.” Id. at 217. As
an example, Attorney Brizzi described a controlled interview that White did with a local
newspaper, which Attorney Brizzi treated as a dress rehearsal for trial. However, White
“came off really badly” during the interview. Id. at 219. Attorney Brizzi also testified that
while this case was pending, White often acted against his advice, such as trying to get
Marion County Prosecutor Terry Curry to prosecute Senators Evan Bayh and Richard
16
Lugar for voter fraud. Id. at 318; see also id. at 217 (Attorney Brizzi: “Throughout the trial
. . . it was everything I could do to just keep [White] to not react to adverse rulings, not
making eye contact with the prosecutors in a way where he wanted to fight everybody.
There were times where he was staring down Sigler or Dowd, and it was all I could do to
just keep him to . . . maintain compos[ure]. So, if he were to be on the witness stand with
three very experienced prosecutors who would have come at him very differently and much
more aggressively than they did at the Recount Commission, . . . I told him . . . instead of
a 13 hour jury deliberation it would have been about a 30 minute jury deliberation.”).
Michelle testified at the post-conviction hearing about her witness preparation with
Attorney Brizzi, which occurred at Overview the night before the State rested. Id. at 421.
White’s attorney questioned Michelle as follows:
Q: Okay. So, what was your conversation with Mr. Brizzi?
A: We sat down in the family room and he asked one question.
Q: Okay. What did he ask?
A: He asked something about when Charlie moved in with Nicole and
when he started living there.
Q: Okay.
A: And the way he said it was implying that they were getting back
together.
Q: Okay. And what did you respond?
A: I said, well, he wasn’t living, living there in that sense, and then he
cut me off.
Id. at 424-25. Michelle explained that she meant White was only sleeping at Broad Leaf,
not trying to reconcile with Nicole. Id. at 425. Michelle also acknowledged that she listed
her parents’ address on Farragut Circle in Hamilton County on the marriage-license
application even though she was “laying her head” at Overview (as were her children) and
kept most of her belongings there; she explained that because she had called off the
17
engagement with White a couple of times, she considered her parents’ house to be her “safe
zone.” Id. at 434, 436; but see id. at 444-45 (Michelle acknowledging on cross-
examination that she had not previously mentioned—at the Recount Commission hearing,
before the grand jury, or at sentencing—that she had called off the engagement with White
a couple of times).
Nicole and her new husband Bill also testified at the post-conviction hearing.
Nicole testified that she allowed White to stay at Broad Leaf “for a period of time” “after
he moved out of Pintail[] and was looking for another home.” Id. at 353. Nicole told White
that he could not stay every day but he could stay “here and there” “until he found a place
to live.” Id. Bill, who worked out of state during the work week, said White had full access
to the house, but he stayed in the basement. Id. at 397-98. Neither Nicole nor Bill could
recall how often or when White stayed at their house.
White also presented the testimony of Ryan Harmon, a potential expert on cellular
phones. The White family hired Harmon approximately four weeks before trial. Harmon
had previously worked for the Indiana State Police, specializing in public-corruption cases.
At the time of trial he owned his own consulting business regarding electronic surveillance
and call-detail records. Id. at 62-63. Harmon, however, had numerous convictions, three
of which were recent convictions (February 2013) for false informing. See id. at 109.
According to Harmon, the number of days that White placed both his first and last calls of
the day from the tower near Overview increased after his marriage to Michelle (which is
when White claims to have moved to Overview). Id. at 98.
18
In December 2013 the post-conviction court entered findings of fact and conclusions
of law denying White relief. Specifically, the court incorporated its August 2013 order that
disposed of the eight freestanding claims of error. P-C App. p. 29. The court also denied
White’s claim regarding new evidence because “[a]ll of the evidence and witnesses cited
in [White’s] amended petition were available before and during trial. This automatically
forecloses his claim under this section as a matter of law.” Id. at 50. As for the remaining
claims, the court separately addressed, and denied, each of White’s ineffective-assistance-
of-counsel claims. Id. at 29-48. White’s sentence was again stayed pending appeal.
White now appeals. Both parties received permission to file oversized briefs in this
case. Oral argument was held on December 9, 2014, in the Indiana Supreme Court
courtroom.
Discussion and Decision
In this case, White invoked the Davis-Hatton procedure, which is the termination or
suspension of a direct appeal already initiated, upon appellate counsel’s motion for remand
or stay, to allow a petition for post-conviction relief to be pursued in the trial court. Kindred
v. State, 973 N.E.2d 1245, 1247 n.1 (Ind. Ct. App. 2012), trans. denied; see also Ind.
Appellate Rule 37(A). Where, as here, the post-conviction relief petition is denied, the
appeal can be reinstated. Slusher v. State, 823 N.E.2d 1219, 1222 (Ind. Ct. App. 2005).
Thus, in addition to the issues raised on direct appeal, the issues litigated in the post-
conviction-relief proceeding can be raised. Id. In other words, the direct appeal and the
appeal of the denial of post-conviction relief are consolidated. Id.19
White raises many issues on appeal, some of which are waived, see Ind. Appellate
Rule 46(A)(8)(a), and others that we need not address due to our double-jeopardy analysis.
What follows are White’s remaining arguments, divided into direct-appeal and post-
conviction issues.
Direct-Appeal Issues
White raises a number of challenges on direct appeal, which we reorder and restate.
First, he contends that the trial court should have dismissed certain charges against him.
Second, he claims that the evidence is insufficient to support his conviction on Count 2,
perjury. Third, he argues that the trial court erred in instructing the jury. Last, he alleges
prosecutorial misconduct.
A. Motion to Dismiss
White argues that the trial court erred by denying his motion to dismiss. We review
the denial of a motion to dismiss for an abuse of discretion. Gilliland v. State, 979 N.E.2d
1049, 1058 (Ind. Ct. App. 2012) (citation omitted). An abuse of discretion occurs when
the trial court’s decision is clearly against the logic and effect of the facts and circumstances
or when the court has misinterpreted the law. Id. We may affirm the trial court’s judgment
if it is sustainable on any basis in the record. Id.
1. Count 6: Perjury
Count 6 alleged that White committed perjury. At the time White was alleged to
have committed the offense, Indiana Code section 35-44-2-1(a)(1) prohibited a person
20
from making “a false, material statement under oath or affirmation, knowing the statement
to be false or not believing it to be true . . . .”9 Count 6 alleged:
[W]hite, on or about the 18th day of May, 2010 in the County of Hamilton,
State of Indiana, did commit the offense of Perjury, to-wit: knowingly or
intentionally making a false material statement under oath or affirmation,
knowing the statement to be false or not believing it to be true, to-wit: stating
on his marriage license application to the Hamilton County Clerk’s Office
and made under affirmation of the truth thereof, that his address was 7527
Broad Leaf Lane, Fishers, Indiana, when it was 13086 Overview Drive, 5B,
Fishers, Indiana.
Appellant’s App. p. 84 (charging information).
White’s request to dismiss Count 6 was based in part on his argument that his
residence address, as provided on his marriage-license application, was not material. See
Appellant’s Br. p. 23.
Materiality is an essential element of the offense of perjury. Vandivier v. State, 822
N.E.2d 1047, 1052 (Ind. Ct. App. 2005) (citing Wilke v. State, 496 N.E.2d 616 (Ind. Ct.
App. 1986)), trans. denied. The trial court must make a preliminary determination of
materiality when assessing the admissibility of the evidence. See id. (citations omitted). If
the court finds that the evidence is admissible, it must then submit the issue to the jury for
the jury to weigh the evidence and determine whether the State proved materiality beyond
a reasonable doubt. Id. (citations omitted). “This Court has long recognized that if
testimony alleged to be false is of no importance and immaterial it cannot be made the basis
for a charge of perjury.” Richardson v. State, 255 Ind. 655, 266 N.E.2d 51, 52 (1971).
9
The statute criminalizing perjury has since been amended; it is now a Level 6 felony. See Ind.
Code § 35-44.1-2-1(a).
21
In order to obtain a marriage license in Indiana, applicants must provide, among
other things, their residence. See Ind. Code § 31-11-4-4(a). White listed Broad Leaf as his
“Residence Address” on his marriage-license application:
State’s Ex. 6.
Indiana Code section 31-11-4-3 provides that Indiana residents “who intend to
marry must obtain a marriage license from the clerk of the circuit court of the county of
residence of either of the individuals.” While Indiana Code section 31-11-4-4(a) sets out
the information that must be provided on a marriage-license application—including the
applicants’ residences—we agree with White that the only material portion of the residence
information is the county of residence. Put another way, assuming that their application
complied with all other relevant statutory provisions—and indeed it did—so long as either
White or Michelle resided in Hamilton County, regardless of their street addresses, they
would be able to obtain their marriage license. This is not to say, however, that applicants
are free to provide false information on marriage-license applications. As the application
above states, furnishing false information to a circuit-court clerk when applying for a
22
marriage license is a felony. See Ind. Code § 31-11-11-1. White, however, was not charged
with furnishing false information; the prosecutors decided to charge him with perjury.
Because we conclude that White’s street address was not material, we agree that the
trial court should have dismissed Count 6. Because it did not, we remand to the trial court
with instructions to vacate White’s conviction on Count 6.
2. Count 7: Theft
Count 7 alleged that White committed theft pursuant to Indiana Code section 35-
43-4-2. Count 7 provided:
[W]hite, on or about the 5th day of November 2009 and continuing through
the 28th day of September 2010 in the county of Hamilton, State of Indiana,
did commit the offense of Theft, to-wit: by knowingly or intentionally
exerting unauthorized control over the property of the Town of Fishers,
Indiana, with the intent to deprive the Town of Fishers of any part of the
value and use, to-wit: taking his pay as a . . . council member for Fishers
Council District 2 during the period of approximately November 5, 2009,[10]
through September 28, 2010,[11] when he did not reside in said Fishers Town
Council district.
Appellant’s App. p. 86 (charging information).
Indiana Code section 36-5-2-6(c) provides that “a member of the legislative body
who is elected by the voters of the entire town but is elected or selected as a candidate from
a district forfeits office if the member ceases to be a resident of the district.” In addition,
Indiana Code section 36-5-2-6.5(3) provides that a vacancy on a town legislative body is
created when “a member ceases to be a resident of the town or district as set forth in Section
6 of this chapter.” Citing these statutes, the State argues that White’s town-council position
10
This was the day White signed the Overview lease.
11
White resigned his town-council position on September 21, 2010.
23
was vacant as of the moment White stopped residing at Broad Leaf; therefore, it could
charge White with theft of his salary from that point forward.
These are not the only statutes dealing with town-council vacancies, however.
When a vacancy is alleged “due to a reason set forth in IC 36-5-2-6.5(3),” Indiana Code
chapter 5-8-5 is triggered. Ind. Code § 5-8-5-1. The chapter provides a public-meeting
mechanism for determining when a vacancy occurs:
(a) The town council may hold a public meeting to determine whether a
circumstance has occurred under IC 36-5-2-6.5(3) that results in a vacancy
on the town council. The town council may set a meeting for making the
determination on its own motion, or a person may petition the town council
to set a meeting to make the determination. The town council may grant or
deny a petition for a meeting.
Ind. Code § 5-8-5-3(a). The chapter also provides that the town council may “vote to
declare a vacancy in the town council membership” and that notice must be given to the
town-council member who is the subject of the proceeding. Ind. Code § 5-8-5-4(a), (b). If
the council determines that a vacancy exists, “the town clerk-treasurer shall give the circuit
court clerk notice of the determination not later than five (5) days after the date of the town
council’s determination. The circuit court clerk shall give notice to the county chairman if
a caucus is required under IC 3-13-11 to fill the vacancy.” I.C. § 5-8-5-4(c).
Through Chapter 5-8-5, the legislature has provided a mechanism for town councils
to declare and fill a vacancy. If we were to ignore the procedures provided by Chapter 5-
8-5, we would violate our rules of statutory interpretation by essentially nullifying the
entire chapter and the detailed procedures it provides. See N. Ind. Bank & Trust Co. v.
State Bd. of Finance, 457 N.E.2d 527, 532 (Ind. 1983) (“[I]t is a rule
of statutory interpretation that courts will not presume the legislature intended to do a
24
useless thing or to enact a statute that is a nullity.”). We therefore read Sections 36-5-2-
6(c) and 36-5-2-6.5(3) and Chapter 5-8-5 so that both have effect.
We agree with the State that pursuant to Sections 36-5-2-6(c) and 36-5-2-6.5(3),
White forfeited his office when he began residing at Overview. It was therefore not legally
improper for White to be charged with theft when he ceased to be a resident of District 2
but continued to draw his town-council salary. This is not to say that Chapter 5-8-5 has no
purpose; town councils may utilize its procedures to fill vacancies. Here, however, the
Fishers Town Council could not do so. As the jury found when it convicted White of theft,
although White began residing at Overview in November 2009, he intentionally concealed
his move, which allowed him to unlawfully and secretly maintain his town-council
position. This concealment precluded the town council from implementing Chapter 5-8-
5’s procedures. The trial court did not err in denying White’s request to dismiss Count 7.12
B. Sufficiency of the Evidence
White next claims that the evidence is insufficient to support his conviction for
Count 2, perjury.13 See Appellant’s Br. p. 56-58.
Our standard of review with regard to sufficiency claims is well settled. In
reviewing a sufficiency-of-the-evidence claim, this Court does not reweigh the evidence or
judge the credibility of the witnesses. Palilonis v. State, 970 N.E.2d 713, 734 (Ind. Ct.
App. 2012), trans. denied. We consider only the evidence most favorable to the verdict
and the reasonable inferences drawn therefrom and affirm if the evidence and those
12
Notably, White does not challenge the sufficiency of the evidence underlying his theft conviction.
13
White does not challenge the sufficiency of the evidence underlying his conviction on Count 4,
voting in other precinct.
25
inferences constitute substantial evidence of probative value to support the verdict. Id.Reversal is appropriate only when a reasonable trier of fact would not be able to form
inferences as to each material element of the offense. Id.In order to convict White of Count 2, the State had to prove that he made
“a false, material statement under oath or affirmation, knowing the statement to be false or
not believing it to be true . . . .” Ind. Code Ann. § 35-44.1-2-1 (West 2012). Specifically,
the State alleged that White made a false, material statement in February 2010 when he
claimed his “Residence Address” was Broad Leaf on the form he submitted to change his
voter registration. See Appellant’s App. p. 76-77 (charging information).
Indiana law defines “residence” as the place:
(1) where a person has the person’s true, fixed, and permanent home and
principal establishment; and
(2) to which the person has, whenever absent, the intention of returning.
Ind. Code § 3-5-2-42.5.
The State presented sufficient evidence from which the jury could reasonably
conclude that Broad Leaf was not White’s residence when he said it was. This evidence
included:
 White’s September 2009 purchase agreement for Overview
 White’s November 2009 lease agreement for Overview, signed after
problems arose with closing
 White’s statement that he would be moving into Overview in November
2009
 White’s January 2010 mortgage application, on which he listed Overview
as his present/mailing address and stated that he had been living at
Overview for .2 years
 White’s February 22, 2010 change-of-address form listing Broad Leaf as
his address
26
 White’s February 26, 2010 closing documents, in which he stated that
Overview would be his primary residence within 30 to 60 days
 White’s February 26, 2010 mortgage documents, in which he stated he
had been living at Overview for .2 years
 White’s homestead-deduction request for Overview, something he was
entitled to only if he resided at Overview
 White’s May 18, 2010 marriage-license application listing Broad Leaf as
his Residence Address
 White’s financial difficulties and the fact that he received $1000/month
for serving as a town-council member
 Witness testimony that White was not living at Broad Leaf and that White
did not stay at Broad Leaf overnight after his divorce
 Utility records from Overview, dating back to November 2009
 Cell-phone records showing White’s presence at Overview
 White’s statements to media that he had been “splitting time” between
Broad Leaf and Overview beginning in November 2009
See supra p. 11-13. From this evidence, the jury could conclude that Broad Leaf was not
White’s residence when he listed it as such on his voter-registration form. The jury could
likewise reasonably conclude that White knew Broad Leaf was not his residence yet said
it was to maintain his town-council position. There is sufficient evidence to support
White’s perjury conviction.
C. Jury Instructions
White next challenges jury instructions given at his trial. “The manner of instructing
a jury is left to the sound discretion of the trial court.” Albores v. State, 987 N.E.2d 98, 99
(Ind. Ct. App. 2013), trans. denied. When reviewing a trial court’s decision to refuse or
give jury instructions, this Court “considers: (1) whether the instruction correctly states the
law; (2) whether there is evidence in the record to support the giving of the instruction; and
(3) whether the substance of the tendered instruction is covered by other instructions which
are given.” Watson v. State, 972 N.E.2d 378, 383 (Ind. Ct. App. 2012) (quoting Gravens
v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005), trans. denied).
27
White challenges Final Instruction Number 18, which provided:
“Residence” means the place:
(1) where a person has the person’s true, fixed, and permanent home and
principal establishment; and
(2) to which the person has, whenever absent, the intention of returning.
Appellant’s App. p. 42 (citing Ind. Code § 3-5-2-42.5).
White did not challenge Instruction 18 at trial.14 Generally, where a defendant fails
to object to a jury instruction or fails to tender alternate instructions, the defendant’s claim
of error on appeal is waived; however, we will consider a defendant’s argument that the
error constituted fundamental error. Staley v. State, 895 N.E.2d 1245, 1248 (Ind. Ct. App.
2008), trans. denied. “The fundamental error doctrine is extremely narrow, and applies
only when the error constitutes a blatant violation of basic principles, the harm or potential
for harm is substantial, and the resulting error denies the defendant fundamental due
process.” Id.White concedes that Instruction 18, as given, was not error. Appellant’s Br. p. 41.
Indeed, the instruction is a verbatim recitation of Indiana Code section 3-5-2-42.5. White
instead argues that the instruction was incomplete: he claims the trial court should have
provided the jury with a number of residency examples found in Indiana Code chapter 3-
5-5. In particular, White argues that the jury should have received instructions on
14
Although he did not object to Instruction 18, the State notes that White apparently offered an
additional residency instruction pertaining to immediate family. The State also notes that this instruction
has not been preserved in the appellate record. See Appellee’s Br. p. 28. The appropriateness of an
immediate-family instruction is discussed below.
28
temporary residency, nontraditional residence, and residency based on immediate family.
We disagree.
With respect to temporary residency, Indiana Code section 3-5-5-7 provides:
[A] person does not gain residency in a precinct into which the person
moves for:
(1) temporary employment;
(2) educational purposes;
(3) preparing to purchase or occupy a residence; or
(4) other purposes;
without the intent of making a permanent home in the precinct.
As for nontraditional residence, Indiana Code section 3-5-5-18 provides that “an individual
with a nontraditional residence whose residence is within a precinct, but is not fixed or
permanent, resides in that precinct.” White fails to explain how the statutory provisions
for temporary residency and nontraditional residence applied to him based on the evidence
presented at trial. In fact, at oral argument, White’s attorney conceded that there was no
evidence at trial to support the giving of these additional instructions. See Oral Arg. at
52:50 available at http://goo.gl/MaLuCp (Chief Judge Vaidik: “What evidence was
presented [at trial] that supported . . . that his Broad Leaf residence was either a
nontraditional or temporary residence, other than the fact that his son lived there with his
ex-wife and her now-husband?” White’s attorney: “Well due to the ineffective assistance
of counsel, there is none.”). We therefore cannot say that these additional examples should
have been presented to the jury. See Watson, 972 N.E.2d at 383 (when reviewing a trial
court’s decision to give jury instructions, this Court considers whether there is evidence in
29
the record to support the giving of the instructions). Additionally, the temporary residency
and nontraditional-residence provisions were broadly covered by the language of
Instruction 18. See id. (when reviewing a trial court’s decision to give jury instructions,
this Court also considers whether the substance of the tendered instruction is covered by
other given instructions).
Regarding the immediate-family provision, Indiana Code section 3-5-5-11, White
argues that his “immediate family, his son, permanently residing at [Broad Leaf] created a
rebuttable presumption of residence for White at [Broad Leaf].” Appellant’s Br. p. 46.
Section 3-5-5-11 provides:
The place where a person’s immediate family resides is the person’s
residence, unless the family’s residence is:
(1) a temporary location for the person’s immediate family; or
(2) for transient purposes.
Pursuant to Indiana Code section 3-5-5-0.5, White’s son does qualify as immediate family.
But White’s argument that Section 3-5-5-11 applies to him is not persuasive because he is
divorced, and White’s son lives with White’s ex-wife and her new husband. We cannot
imagine that the legislature intended Section 3-5-5-11 to apply in such a situation.15
We cannot say that the trial court committed any error—much less fundamental
error—with respect to Instruction 18.
D. Prosecutorial Misconduct
15
Moreover, Indiana Code section 3-5-5-13 provides that if a person is “living at a place other than
the residence of the person’s immediate family” and “has the intention of remaining at that place and
engages in conduct to carry out that intent; the place where the person lives is the person’s residence.”
30
White contends that the State committed numerous instances of prosecutorial
misconduct. Because White did not object at trial, he claims fundamental error.
In reviewing a claim of prosecutorial misconduct properly raised in the trial court,
we determine (1) whether misconduct occurred, and if so, (2) whether the misconduct,
under all of the circumstances, placed the defendant in a position of grave peril to which
he would not have been subjected otherwise. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014),
reh’g denied. A prosecutor has the duty to present a persuasive final argument and thus
placing a defendant in grave peril, by itself, is not misconduct. Id. “Whether a prosecutor’s
argument constitutes misconduct is measured by reference to case law and the Rules of
Professional Conduct. The gravity of peril is measured by the probable persuasive effect
of the misconduct on the jury’s decision rather than the degree of impropriety of the
conduct.” Id. (quotation omitted). To preserve a claim of prosecutorial misconduct, the
defendant must—when the alleged misconduct occurs—request an admonishment to the
jury, and if further relief is desired, move for a mistrial. Id.Our standard of review is different where, as here, a claim of prosecutorial
misconduct has been procedurally defaulted for failure to properly raise the claim in the
trial court, that is, waived for failure to preserve the claim of error. Id. The defendant must
establish not only the grounds for prosecutorial misconduct but also that the prosecutorial
misconduct constituted fundamental error. Id. at 667-68. Fundamental error is an
extremely narrow exception to the waiver rule where the defendant faces the heavy burden
of showing that the alleged errors are so prejudicial to the defendant’s rights as to “make a
fair trial impossible.” Id. at 668. In evaluating the issue of fundamental error, we must
31
look at the alleged misconduct in the context of all that happened and all relevant
information given to the jury—including evidence admitted at trial, closing argument, and
jury instructions—to determine whether the misconduct had such an undeniable and
substantial effect on the jury’s decision that a fair trial was impossible. Id.
White raises numerous instances of prosecutorial misconduct on the part of Dowd,
Sigler Sr., and Sigler Jr; however, we find that White has failed to establish not only the
grounds for prosecutorial misconduct but also that the misconduct constituted fundamental
error.
First, White argues that the State committed prosecutorial misconduct when it
argued during opening and closing that White “immediately” forfeited his town-council
position when he stopped residing at Broad Leaf, which was a misstatement of the law.
This argument impacts Count 7, theft of White’s town-council salary. The prosecutor did
not misstate the law; as we explained previously, pursuant to Indiana Code sections 36-5-
2-6(c) and 36-5-2-6.5(3), White forfeited his office when he began residing at Overview.
See supra p. 23-25.
Second, White argues that the State committed prosecutorial misconduct
“throughout trial” when it argued that White was not “living” at Broad Leaf, as opposed to
using the residency standards found in Indiana Code chapter 3-5-5. Appellant’s Br. p. 73.
White, however, provides only one example from the State’s closing argument: “You can’t
vote someplace where you don’t live.” Tr. p. 1098. This lone example does not establish
prosecutorial misconduct, especially since a person’s physical presence is one of the factors
32
used to determine residency. See State Election Bd. v. Bayh, 521 N.E.2d 1313, 1318 (Ind.
1988).
In a related argument, White appears to suggest that the State did not make a good-
faith argument that he lived at Overview based on post-conviction exhibits showing that
White received mail at Broad Leaf. See P-C Ex. 24-25. However, the exhibits he relies on
were not admitted at trial. See Gasper v. State, 833 N.E.2d 1036, 1042-43 (Ind. Ct. App.
2005) (“While a prosecutor may argue both law and facts and propound conclusions based
on his or her analysis of the evidence, the prosecutor must confine closing argument to
comments based only upon the evidence presented in the record.” (emphasis added)), trans.
denied. Accordingly, the State did not commit prosecutorial misconduct on this basis.
Also, contrary to White’s argument, the State did not argue that White had “no right” to be
at Broad Leaf; rather, the State argued that White had “no legal right” to live there because
he quitclaimed his interest in the marital residence on Broad Leaf to Nicole one month after
their divorce. See Tr. p. 1031.
Third, White argues that the State committed prosecutorial misconduct by stating
that White received his Krieg DeVault paycheck at Overview, which was based on the trial
evidence that White provided that address for employment purposes. Although post-
conviction testimony later indicated that Krieg DeVault issued electronic—not paper—
paychecks, P-C Tr. p. 568, the available trial evidence supported the State’s argument. To
the extent White argues that the State improperly summarized the evidence regarding other
mail that he received at Overview, the trial record shows that White provided the Overview
address for water and electric utilities, received his Krieg DeVault acceptance letter at
33
Overview and gave them his Overview address for purposes of employment forms, and
provided the address to his landlord for the purpose of receiving notices. State’s Ex. 8, 11,
17, 41, & 42. The State did not commit prosecutorial misconduct regarding White’s mail.
Fourth, White argues that the State committed prosecutorial misconduct by stating
that he sought a homestead deduction for Overview. This assertion, however, was
supported by the trial evidence, including the testimony of the loan closer and White’s
Indiana Sales Disclosure Form. The form was signed by White on February 26, 2010, and
stamped as filed by the Hamilton County Auditor on March 3, 2010. State’s Ex. 26, p. 3.
On the form, White indicated that he was using Overview as his “primary residence” and
was applying for the homestead deduction. Id., p. 1. Although at the post-conviction
hearing White presented a “receipt” suggesting that he did not receive a homestead
deduction, see P-C Ex. 33 (detachment portion of Sales Disclosure Form stamped as filed
by Hamilton County Auditor on March 8, 2010), this evidence was not presented at trial.
Therefore, the State did not commit prosecutorial misconduct with respect to the homestead
deduction.
Fifth, White argues that the State committed prosecutorial misconduct concerning
State’s Exhibit 18, an email from a mortgage counselor regarding White’s FHA loan for
Overview. White claims that the email was “irrelevant” to his Overview mortgage, because
it said White was not eligible for a tax credit because he did not occupy Broad Leaf as his
primary residence. Appellant’s Br. p. 74. The State’s brief discussion of this email during
closing, which it used to transition into the definition of residence, Tr. p. 1035, does not
amount to prosecutorial misconduct.
34
Sixth, White argues that the State committed prosecutorial misconduct regarding
the cellular records. It is true that the State argued that the cellular records “put” White at
Overview; however, these statements occurred after the State had already explained that
White’s presence at Overview was a reasonable inference based on the calls made from
Tower 074, the tower closest to Overview. See Tr. p. 1036. The State did not argue that
the cellular records showed an exact location; rather, the limits of such evidence were well
established at trial. Id. at 969-70 (records showed the caller’s “general area”).
Finally, White argues that the State misled the jury by not providing accurate
coverage maps. The State admitted a map that showed the location of the towers, but not
the coverage area of those towers. See State’s Ex. 57; Tr. p. 956 (Sprint witness identifying
“IN03XC114” on the map as Tower 074 and “IN03XC105” on the map as Tower 07).
However, the State admitted evidence explaining the coverage area of those towers.
Specifically, the Sprint witness testified that when a call is placed, the cell phone generally
reaches the closest tower. The witness explained that the effective range of each tower was
two miles or less, depending upon urban density. Tr. p. 960.
White presented his own coverage map at the post-conviction hearing, which he
claimed was more “accurate” than the State’s trial map. See P-C Ex. 3. This, however,
does not prove that the State committed prosecutorial misconduct at trial.16
E. Double Jeopardy
16
To the extent White argues that “non-triangulated cell data depicting coverage areas only when
a phone is used” should not be used to determine domicile in White’s case and all future residency contests,
we decline to address this for lack of cogent argument. Appellant’s Br. p. 76 (emphasis omitted).
35
Although White did not raise this claim on appeal, we address whether his
convictions on Counts 1 and 2, as well as on Counts 4 and 5, violate Indiana’s prohibition
against double jeopardy. We raise this issue sua sponte because a double-
jeopardy violation, if shown, implicates fundamental rights. Smith v. State, 881 N.E.2d
1040, 1047 (Ind. Ct. App. 2008) (citation omitted).
Conviction of two or more offenses violates the double-jeopardy clause of the
Indiana Constitution “if, with respect to either the statutory elements of the challenged
crimes or the actual evidence used to convict, the essential elements of one challenged
offense also establish the essential elements of another challenged offense.” Richardson v.
State, 717 N.E.2d 32, 49 (Ind. 1999). Beyond constitutional double jeopardy, other
categories of double jeopardy based on statutory construction and common law prohibit
multiple convictions or punishments for the same crime. Guyton v. State, 771 N.E.2d 1141,
1143 (Ind. 2002). As it pertains to White’s case, these categories prohibit “[c]onviction
and punishment for a crime which consists of the very same act as another crime for which
the defendant has been convicted and punished,” as well as “[c]onviction and punishment
for a crime which consists of the very same act as an element of another crime for which
the defendant has been convicted and punished.” Id. (quoting Richardson, 717 N.E.2d at
56 (Sullivan, J., concurring)).
We find two double-jeopardy violations here. First, with respect to Counts 1 and 2,
White was convicted and punished for the very same act—making a false statement
regarding his address on the form he used to change his voter registration:
Count 1: Class D felony submission of a false, fictitious, or fraudulent voter’s
registration application for “knowingly or intentionally sending a voter
36
registration change[-]of[-]address form to the Hamilton County Board of
Voter Registration [in February 2010] representing his new address was 7527
Broad Leaf Lane . . . when he knew he was or would be living at 13086
Overview Drive . . . at the time of the next election (May Primary 2010).”
Count 2: Class D felony perjury for “knowingly or intentionally making a
false material statement under oath or affirmation knowing the statement to
be false or not believing it to be true . . . on his State Voter’s Registration
Change Form [in February 2010] stating his residence was changing from
6994 Pintail Drive . . . to 7527 Broad Leaf Lane . . . when in fact at the time
of making said statement he was residing at 13086 Overview Drive . . . .”
Appellant’s App. p. 74-77 (charging information).17 At oral argument, the State appeared
to admit that these convictions violate double jeopardy. See Oral Arg. at 32:13, available
at http://goo.gl/MaLuCp (Chief Judge Vaidik: “In any event, when we’re talking about
applications we’re talking about Count 1, which is submitting the fraudulent application to
the voter-registration board, and Count 2, is the same application, is it not, that was
submitted to the voter-registration board and it was charged as perjury. So are those two
counts double jeopardy?” The State: “[T]hey very well may be . . . this is not something
that they brought in their appeal, but [] you’re right it is the same fact, it is the same
application we’re dealing with . . . .”). Because Counts 1 and 2 violate double-jeopardy
principles, we remand to the trial court with instructions to vacate White’s conviction on
Count 1.18
17
Counts 1 and 2 use different dates—February 22 and 23. See Appellant’s App. p. 74-77.
However, they are referencing the same document, State’s Exhibit 46.
18
Although we vacate White’s conviction on Count 1, we find it necessary to note one of White’s
arguments regarding this conviction. Citing Indiana Code section 3-14-3-1.1(1), the trial court instructed
the jury that it could convict White of Count 1 if he knowingly submitted a single materially false, fictitious,
or fraudulent voter-registration application. At trial and on appeal, White argued that the statute requires
multiple materially false, fictitious, or fraudulent applications, and for this reason, he should not have been
convicted of Count 1. In response, the State argued that interpreting Section 3-14-3-1.1 to require more
than one application would lead to absurd results and excuse a legitimate instance of voter fraud. Section
37
Counts 4 and 5 also violate double jeopardy. Both punish White for the very same
act—the act of voting in the May 2010 primary election in Delaware Township when he
lived in Fall Creek Township:
Count 4: Class D felony voting in other precinct in May 2010 for “knowingly
or intentionally voting in Delaware Township Precinct 12 indicating his
residence was 7527 Broad Leaf Lane . . . when in fact he resided at the time
at 13086 Overview Drive . . . , which is located in Fishers Fall Creek
Township Precinct 5.”
Count 5: Class D felony procuring, casting, or tabulating a false, fictitious,
or fraudulent ballot in May 2010 for “knowingly or intentionally casting a
vote . . . in the Delaware 12 Precinct when he was residing in . . . Fall Creek
Township No. 5 Precinct (13086 Overview Drive).”
Appellant’s App. p. 80-83 (charging information). As with Counts 1 and 2, the State
appeared to concede at oral argument that these convictions violate double jeopardy. Oral
Arg. at 28:30, available at http://goo.gl/MaLuCp (Chief Judge Vaidik: “Is casting a ballot,
Count 4, and Count 5, voting . . . are those convictions [] double jeopardy?” The State: “I
think they very well may be; they didn’t raise that issue in this appeal . . . but they do seem
to be based on the same acts.”). Because Counts 4 and 5 violate double-jeopardy principles,
we remand to the trial court with instructions to vacate White’s conviction on Count 5.19
II. Post-Conviction Issues
3-14-3-1.1, which speaks of applications and ballots, is indeed written in the plural. The legislature may
wish to consider amending this section.
19
Although we vacate White’s conviction on Count 5, we note a problem with the relevant statute.
At the post-conviction hearing, there was testimony that Hamilton County used a MicroVote Infinity direct-
record electronic voting system in the May 2010 primary election. According to White, this electronic
voting system does not utilize a paper ballot, ballot card, or ballot label, meaning it does not use a ballot as
currently defined by Indiana Code section 3-5-2-3. As the State pointed out at oral argument, the statute
has yet to be amended to account for new voting technology. Given the likelihood that electronic voting
systems will be used with increasing frequency in the future, the legislature should amend Section 3-5-2-
3’s definition of ballot to be more inclusive.
38
Post-conviction proceedings provide a narrow remedy to raise issues that were not
known at the time of the original trial or were unavailable on direct appeal. Garrett v.
State, 992 N.E.2d 710, 718 (Ind. 2013). The petitioner in a post-conviction proceeding
bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind.
Post-Conviction Rule 1(5); Garrett, 992 N.E.2d at 718. When appealing from the denial
of post-conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Garrett, 992 N.E.2d at 718. To prevail from the denial of post-
conviction relief, a petitioner must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction court. Id.
White contends that Attorney Brizzi was ineffective. To establish a post-conviction
claim alleging violation of the Sixth Amendment right to effective assistance of counsel, a
defendant must establish the two components set forth in Strickland v. Washington, 466
U.S. 668 (1984). Id. First, a defendant must show that counsel’s performance was
deficient. Strickland, 466 U.S. at 687. This requires a showing that counsel’s
representation fell below an objective standard of reasonableness and that counsel made
errors so serious that counsel was not functioning as “counsel” guaranteed to the defendant
by the Sixth Amendment. Id. Even the finest, most experienced criminal defense attorneys
may not agree on the ideal strategy or most effective way to represent a client; therefore,
under this prong, we will assume that counsel performed adequately and defer to counsel’s
strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002), reh’g
denied. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective. Id.39
Second, a defendant must show that the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687. 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. A reasonable probability is one
that is sufficient to undermine confidence in the outcome. Id.These prongs are “separate and independent inquiries,” and a petitioner’s “failure
to establish either prong will cause the claim to fail.” State v. Greene, 16 N.E.3d 416, 419
(Ind. 2014) (quotation omitted).
A. Discussion of Jury Nullification during Voir Dire
White first contends that Attorney Brizzi was ineffective because he discussed jury
nullification during voir dire: “Telling jurors they could disregard the law, even in voir
dire, was unreasonable considering there was a strong probability that it implied [he]
violated a law.” Appellant’s Br. p. 61. White claims that Attorney Brizzi was essentially
telling the jurors that they could “acquit [him] because it was a selective prosecution and/or
the punishment was too severe for technical violations.” Id.Jury nullification is the jury’s “knowing and deliberate rejection of the evidence or
refusal to apply the law either because the jury wants to send a message about some social
issue that is larger than the case itself or because the result dictated by law is contrary to
the jury’s sense of justice, morality, or fairness.” Black’s Law Dictionary 989 (10th ed.
2014). Our Supreme Court has made clear that Indiana juries do not have a broad, general
nullification power in criminal cases. Walden v. State, 895 N.E.2d 1182, 1184 (Ind. 2008).
During voir dire, Attorney Brizzi discussed playing poker for nickels, failing to obtain city
40
permits, and a paraplegic who possessed a large quantity of pain pills being convicted of
drug trafficking. Tr. p. 614, 615, 616-17. Attorney Brizzi testified during the post-
conviction hearing that he discussed these “potential situations . . . where maybe somebody
is singled out unfairly” because his “hope was sort of planting this seed because 12 people
have to unanimously agree that the State met their burden.” P-C Tr. p. 239.
In its order denying post-conviction relief, the post-conviction court found that
Attorney Brizzi did not employ a jury-nullification theme or defense at trial and therefore
he was not ineffective on this basis:
a. “Jury nullification” was never employed as a theme or defense in the trial
of this cause. Beyond two or three short examples cited during a very brief
portion of jury selection, there is little or no other reference or resort to “jury
nullification” in the trial court. In support of this finding, the [C]ourt has
reviewed the testimony of Brizzi and White at the P.C.R. hearings and also
reviewed the trial transcript. Specifically, the Court has looked to Counsel
Brizzi’s entire jury selection presentation, opening statements, cross-
examination of witnesses, arguments to the [C]ourt and closing arguments.
The [C]ourt finds no other statements which reasonably could be said to
employ a “jury nullification” theme.
* * * * *
c. Attorney Brizzi testified under direct and cross-examination that he was
specifically testing jurors for their reactions to certain ideas that may (or may
not) have arisen at trial and that the potential for using nullification could
have potential application. Ultimately, however, the tactical decision made
by [White] and his counsel was to argue that the State had not met its burden.
d. Given that there was only a brief mention of the idea of nullification to an
unsworn portion of the panel of potential jurors, this Court can find no
prejudicial incrimination in violation of the Constitutional protections
against self-incrimination.
e. Although this Court need not reach the issue of the appropriateness of
employing a jury nullification theme (because none existed in this case), the
Court would note the longstanding use of such a defense as a matter of sound
trial strategy in certain criminal cases.
41
f. Finally, [White] has not demonstrated how brief references to nullification
poisoned the minds of the jury such that a fair trial could not be had.
P-C App. p. 1949.
We agree that Attorney Brizzi’s defense at trial was not jury nullification; rather, he
discussed three brief examples during voir dire to test the waters in light of the State’s
evidence that White was living at Overview at the same time that he claimed Broad Leaf
as his address. Furthermore, White has made no showing that the result of the trial would
have been different without the comments. Accordingly, Attorney Brizzi was not
ineffective on this ground.
B. Failure to Prepare or Present a Defense
After the State presented its case-in-chief, the defense unexpectedly rested without
presenting any evidence. See P-C Tr. p. 184 (Attorney Brizzi: “[The State was] surprised
that we had rested. I did watch them sort of scramble there at the end to try to figure out
what was going on.”). White contends that Attorney Brizzi was ineffective for not
preparing or presenting a defense. White argues that Attorney Brizzi should have called
his wife Michelle, his ex-wife Nicole, Nicole’s husband Bill, his mother Peggy White
Uskert, his cell-phone expert Harmon, and White himself as witnesses at trial and that
Attorney Brizzi should have admitted the mail that he received at Broad Leaf. White also
argues that Attorney Brizzi’s “lack of preparation resulted in an unreasonable decision to
present no evidence.” Appellant’s Br. p. 67.
Trial counsel’s strategy to put the State to its burden and not present a defense, like
other strategic decisions, is a legitimate trial strategy. Rondon v. State, 711 N.E.2d 506,
42
520 (Ind. 1999). In addition, it is not unreasonable to change strategy during the course of
trial because “as a trial unfolds, events occur, some unexpected, that counsel must react to
in real time.” McCullough v. State, 973 N.E.2d 62, 76 (Ind. Ct. App. 2012), trans. denied.
The determination of whether a defendant should testify is a matter of trial strategy.
Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998). We will not lightly speculate as to what
may or may not have been an advantageous trial strategy as counsel should be given
deference in choosing a trial strategy which, at the time and under the circumstances, seems
best. Id.Attorney Brizzi spent “hundreds and hundreds and hundreds of hours on this case.”
P-C Tr. p. 219. Attorney Brizzi testified at the post-conviction hearing that his initial
strategy was to put on some witnesses to establish that White had been living at Broad
Leaf. Id. at 285. According to Attorney Brizzi, “[i]f all had gone well,” he would have
called “Charlie, Nicole, Michelle, and Bill and maybe Ryan [Harmon].” Id. at 210. He
never intended to call Peggy. Id. at 245. But when Attorney Brizzi realized that he could
not call those witnesses, he switched to the strategy that the State had not met its burden of
proof. Id. at 285. Specifically, when Attorney Brizzi was preparing Michelle for her trial
testimony 48-72 hours before the close of the State’s case-in-chief, Michelle blurted out in
response to Attorney Brizzi’s fairly aggressive cross-examination question that White
“really didn’t live there, live there,” referring to Nicole’s house on Broad Leaf. Id. at 208.
Attorney Brizzi told White that if that happened on cross-examination, he would be “sunk.”
43
Id. So they decided that “we not only couldn’t call Michelle, but that we [also] couldn’t
call Nicole or her husband.”20 Id.
Attorney Brizzi decided not to call White because he could not control White’s
testimony on the stand, and “it would have been, in [his] professional opinion, a disaster.”
Id. at 217; see also id. at 219. Attorney Brizzi also decided not to call Harmon because he
was satisfied with his cross-examination of the State’s cell-phone expert, Harmon
presented ethical problems, and the State would have “destroy[ed]” Harmon on cross-
examination. Id. at 265-66, 291. As for White’s allegation that Attorney Brizzi should
have prepared his witnesses before trial as opposed to during trial, Attorney Brizzi testified
that he had “been doing this for 20 years” and he always “prepare[s] [his] witnesses right
before they’re about to testify.” Id. at 213. Attorney Brizzi continued,
This is the only jury trial I’ve ever lost. My witnesses, when they take the
stand to testify, are prepared to testify. I don’t want to get into a debate . . .
about when the State closed and when I was going to prepare [the witnesses].
At that time [at least 48 hours before the State closed], I felt like I had
adequate time to prep both Nicole and Michelle to testify if that was, in fact,
going to happen.
Id. at 234; see also id. at 254. Finally, Attorney Brizzi explained that he did not admit the
stipulated evidence—the mail that White received at his ex-wife’s house on Broad Leaf—
because “at that time, our trial strategy had significantly changed from what it had been
three or four days prior, and, number one, I didn’t want the chance for the State to come
back on rebuttal, because I think they were surprised that we had rested.” Id. at 184.
20
Attorney Brizzi testified that on his way home that night, he called and sought advice from his
former law partner, whom he described as his “little Jiminy Cricket, because he was always the partner who
was . . . saying . . . we can do this, but we can’t do that.” P.C. Tr. p. 335. Attorney Brizzi’s former partner
agreed that Attorney Brizzi should not call Michelle as a witness. Id. In addition, Attorney Brizzi consulted
his wife, also an attorney, who likewise agreed. Id.
44
Attorney Brizzi also believed that the mail “cut both ways,” especially without any
witnesses to explain it. Id.
The post-conviction court found:
Brizzi’s preparation for trial was appropriate and extensive. The testimony
of Brizzi, coupled with the defense exhibits and e-mails between the lawyer
and client[,] indicate an amicable working relationship and multiple tactical
conversations.
Brizzi was in constant communication with [White] throughout the pendency
of the action. In addition, counsel sought the input of other lawyers and
experts as he prepared [White’s] case, conducted an informal focus group
and checked his assessment of strategy and tactics with other trusted lawyers.
* * * * *
Brizzi gave an appropriate opening statement indicating clearly that the
responsibility for proof lay with the State of Indiana and that they would be
unable to meet that burden.
[Brizzi] conducted an efficient and thorough cross-examination of the State’s
witnesses according to the Court’s review of the trial transcript.
There were numerous, significant testimonial problems for each of the
witnesses [White] claims should have been called to testify at trial.
Cumulatively, the effect of these credibility problems would have done more
harm than good had these witnesses taken the stand.
[White], for example, gave multiple pre-trial statements to the press which
Brizzi testified made calling White as a witness exceedingly difficult. In an
attempt to determine if calling [White] at trial was a good idea, Brizzi
arranged an interview in a tightly controlled setting and described [his]
performance as “disastrous.”
As noted more specifically below, Michelle White indicated in preparation
for her trial testimony that “Charlie didn’t live there, live there,” when
referring to [White’s] claims to reside at [Broad Leaf]. This was the first
time such a statement had been made and Brizzi was thus placed in the
untenable position of suborning perjury or subjecting Michelle White to a
potentially damaging cross examination.
45
Michelle White’s value as a witness was suspect at best: having given
multiple statements under oath and having, apparently, been less than truthful
about her residence on her own application for marriage license, there was a
serious and significant tactical risk to calling her to the stand.
Nicole Mills, beyond repeating that White had access to her home and could
stay there[,] did not, in this Court’s review, ever offer a definitive statement
on when or if he stayed there with any frequency. When asked this question
by the State on cross-examination, she agreed that she could not—and in fact
had not—ever made such an estimate in any proceeding relative to this case.
Further, Brizzi testified that he remained concerned during trial that this
ambiguity would make her a favorable State’s witness.
Nicole Mills’s reluctance or inability to specify dates, times or periods in
which [White] lived at [Broad Leaf] made her testimony as difficult as
Michelle White’s.
Brizzi testified that by not being able to call Michelle White, having Nicole
Mills testify could create a serious perception problem in the minds of the
jury.
Brizzi was also aware of potentially serious credibility problems for Ryan
Harmon had he been called to testify.
[White] was aware, according to both the testimony of Brizzi and the e-mail
submitted at the hearing on October 21, 2013, that there was a strong
possibility Harmon would not be called. The Court concludes that this was
not a matter of surprise for [White].
A review of the e-mail . . . shows that Brizzi made a great many of the points
requested by [White] in his cross-examination of the State’s telephone[-
]records witness.
The Court can ascribe no legal or strategic value to the testimony of Peggy
White Uskert, William Mills or Tim Wilcox[21]; further, there was no
indication of how their testimony would have altered the outcome of this
case.
P-C App. p. 1939-40. As for White’s post-conviction testimony, the post-conviction court
made the following findings:
21
Tim Wilcox was a private investigator White hired to assist with the case. P-C App. p. 1937.
46
White indicated he was a lawyer but had no experience as a criminal lawyer.
...
White expressed satisfaction with Brizzi’s representation well into the trial
of the case and agreed he was satisfied with relying on Brizzi’s judgment in
making case decisions.
* * * * *
White had doubts about testifying himself. White ultimately reached no
conclusion on testifying but “thought maybe I should” near the end of the
trial. He ultimately concurred in Brizzi’s decision not to call him and
admitted he did not insist on testifying.
White did not complain about Brizzi’s trial strategy during an interview after
his conviction and acknowledged that he only decided to pursue post-
conviction relief after consulting with an appellate lawyer.
White expressed no frustration at his sentencing hearing with the decisions
not to call witnesses or present evidence.
White acknowledged the State’s trial evidence: [White] admitted listing
Overview Drive as his place of residence on his Uniform Residential Loan
application for his Overview mortgage and further admitted signing a
promise under oath to reside in his Overview condominium per FHA
requirements.
White gave his employer, Krieg De[V]ault, the Overview Drive address as
his place of residence in January 2010[,] and [he] directed his last DNR
paycheck to his Overview Drive address during the time he claimed to be
receiving his mail and residing at [Broad Leaf].
* * * * *
White was aware of credibility issues with Ryan Harmon and that Brizzi did
not want to call him. Moreover, White heard Brizzi’s judgment that his cross
examination of the State’s cell[-]phone witness and concurred in that
decision.
In a post-sentencing television interview, White stated he “wanted to put on
a case” but concurred with Brizzi in not calling witnesses. The rationale for
this tactical decision was because “. . . we did not believe the State had met
its burden.”
47
Id. at 1941-42. Regarding the mail that White wanted Attorney Brizzi to enter into
evidence, the post-conviction court found:
White entered a large volume of personal mail he received at [Broad Leaf]
during the time period relevant to the criminal case. It included bills, some
tax documentation, and junk mail.
The court does not find this conclusive as to the issue of residence and of
arguable evidentiary value. Brizzi testified that the presentation of the mail
in evidence could “cut both ways” were it introduced and the court
acknowledges and adopts this interpretation.
Id. at 1942.
The post-conviction court concluded that White had failed to prove both prongs of
Strickland. We agree. Regarding deficient performance, as the post-conviction court
concluded, each of White’s proposed witnesses “was fraught with pitfalls.” Id. at 1943.
Michelle had the potential to be a damaging witness against her own husband regarding
whether White lived at Broad Leaf,22 and Nicole and Bill were unable to specify when
White spent the night at their house on Broad Leaf. And it was a risk to put White on the
stand given his demeanor and commentary both before and during trial. Moreover, at the
22
White argues that the post-conviction court erred in ruling that Attorney Brizzi was reasonable
in not calling Michelle as a witness because the post-conviction court used “an incomplete segment of her
testimony.” Appellant’s Br. p. 66. Specifically, White claims that Michelle actually said that “Charlie
really didn’t live there, live there in that sense,” which meant that White was living at Broad Leaf, but not
to reconcile with Nicole. Id. (emphasis added). However, the post-conviction court found that Michelle
told Attorney Brizzi before trial that “Charlie didn’t live there, live there” and that her value as a witness
was “suspect at best.” P-C App. p. 1940. We defer to a post-conviction court’s factual findings.
In addition, White claims that the post-conviction court erred in sustaining an objection to
Michelle’s post-conviction testimony. Specifically, White’s attorney asked Michelle if she intended to
“abandon” her “residence” at her parents’ house on Farragut Circle in Hamilton County when she signed
the marriage-license application (even though she was actually living at Overview at the time). P-C Tr. p.
454. The State objected on the grounds that it called for a legal conclusion, and the post-conviction court
sustained the State’s objection. On appeal, White asks us to take judicial notice of Michelle’s testimony
before the Recount Commission and to unseal and take judicial notice of her testimony before the grand
jury. Even assuming that Michelle intended to retain her residency at her parents’ house until she married
White, White fails to explain how this entitles him to relief. We therefore decline to take judicial notice.
48
post-conviction hearing White agreed with Attorney Brizzi’s decision not to call him as a
witness. Regarding Harmon, Attorney Brizzi was able to make many of the points he
needed to make about White’s cell-phone calls during his cross-examination of the State’s
cell-phone expert. Plus, Harmon had credibility issues given his own criminal history.
Regarding the mail,23 the post-conviction court concluded:
Receiving mail at one address while residing at another is not qualitatively
different than having a post office box where one receives their mail. While
the mail was certainly an indicator that White received bills and
correspondence there and would occasionally pick it up, nothing offered by
[White] suggested his actual residence at that location during the relevant
period. In point of fact, a review of the trial record and transcript appears to
indicate that [White] interchanged the use of [Broad Leaf] Lane and
Overview Drive as mailing addresses depending on whether he wanted to
have a document remain private (Overview) or public ([Broad Leaf]).[24]
Id. at 1945. Attorney Brizzi testified at the post-conviction hearing that he was concerned
that the State would use White’s mail to help prove its own case. As the State argued in
its brief and at oral argument, some of the Broad Leaf mail involved preexisting accounts
on which White was not changing his address, see Oral Arg. at 44:45, available at
23
White makes a one-sentence argument that Attorney Brizzi should have admitted White’s
“receipt” showing that he did not “claim[]” a homestead deduction for Overview, which would arguably
support his claim that he did not reside there. Appellant’s Br. p. 67 (citing P-C Ex. 33). The State responds
that White’s signed Indiana Sales Disclosure Form shows that he applied for the homestead deduction by
virtue of the checked box, State’s Ex. 26, and the loan closer testified at trial that White applied for the
homestead deduction. Tr. p. 798. Even if White did not receive a homestead deduction for Overview, this
evidence is not sufficient to prove ineffective assistance of counsel.
24
As for private documents, Krieg DeVault sent its employment offer to White at Overview, and
White received his final paycheck from DNR in February 2010 at Overview. In addition, when filling out
the mortgage applications for Overview in January and February 2010, White listed Overview as both his
“Present” and “Mailing” addresses.
As for public documents, when White filled out an address change with the Hamilton County Board
of Voter Registration in February 2010, he changed his address from the Pintail apartment to Broad Leaf.
White then voted in the May 2010 primary election using Broad Leaf and filed his Declaration of Candidacy
the following week using Broad Leaf. White also listed Broad Leaf as his “Residence Address” when
submitting an application to marry Michelle in May 2010.
49
http://goo.gl/MaLuCp, and some of the mail was still addressed to the Pintail apartment
but was being forwarded to Broad Leaf. See P-C Ex. 24 (bundle of White’s mail).
With regard to Attorney Brizzi switching strategies in the middle of trial, he
explained:
[A]t that moment [when Michelle said “Charlie really didn’t live there, live
there”] I no longer believed that Charlie was living at Broad Leaf. And so
my entire trial strategy at that point shifted to the State can’t meet their
burden, and many of the decisions about not putting the stipulated exhibits
on and calling additional witnesses is because I was terrified of what they
were going to do in rebuttal, because I think I did catch them . . . off guard
when we rested without even calling Harmon.
P-C Tr. p. 257-58. Given “the very difficult situation in which Attorney Brizzi found
himself at trial,” P-C App. p. 1943, White has failed to show that Attorney Brizzi’s
representation fell below an objective standard of reasonableness and that Attorney Brizzi
made errors so serious that he was not functioning as “counsel” guaranteed to White by the
Sixth Amendment. Even White agreed in a post-sentencing television interview that he
endorsed Attorney Brizzi’s position and defense. See id. at 1944.
Regarding prejudice, the post-conviction court concluded, and we agree, that White
“cannot point to a single piece of evidence or witness which would have swayed the
outcome of the jury’s decision. Nothing in the testimony of the witnesses he produced in
the post-conviction evidentiary hearings challenged this Court’s confidence in the outcome
or the process which produced it.” Id. at 1945. White has not shown that there is a
reasonable probability that the result of the proceeding would have been different.
Attorney Brizzi’s decision not to call witnesses, not to admit mail, and to change strategies
during trial appears to have given the jury a lot to think about, as they deliberated for
50
thirteen hours before convicting White of six of the seven counts. See P-C Tr. p. 322
(Sigler Sr.: “And of the case[s] you tried as a prosecutor, if a jury was out more than five
or six hours, . . . where would your mind go?” Attorney Brizzi: “I’d be worried.”). White
has failed to prove that Attorney Brizzi was ineffective for not preparing or presenting a
defense.
C. Jury Instructions and Failure to Object
White contends that Attorney Brizzi was ineffective because he did not object to
Instruction 18 and then propose “complete residency instructions.” Appellant’s Br. p. 68-
69. White also raised this issue above in the context of fundamental error.
The bar establishing fundamental error is higher than that for prejudice of
ineffective assistance of trial counsel. See Benefield v. State, 945 N.E.2d 791, 804, 805
(Ind. Ct. App. 2011) (“[A] finding on direct appeal that no fundamental error occurred does
not preclude a post-conviction claim of ineffective assistance of trial counsel.”). In other
words, it is easier for a defendant to prove the prejudice prong of an ineffective-assistance-
of-counsel claim than it is to prove fundamental error. But as our Supreme Court recently
observed, “Although fundamental-error and ineffective-assistance-of-counsel claims are
different, they often yield the same result.” Ryan, 9 N.E.3d at 668 n.4 (quotation omitted).
We determined above that the trial court did not commit fundamental error in giving
Instruction 18; indeed, it is a verbatim recitation of Indiana Code section 3-5-2-42.5. We
likewise conclude that Attorney Brizzi was not ineffective for failing to object to it. In
addition, we conclude that Attorney Brizzi was not ineffective for not supplementing
Instruction 18. White claims that Attorney Brizzi should have provided the jury with a
51
number of residency examples found in Indiana Code chapter 3-5-5; however, he fails to
establish that any of these statutory provisions applied to him based on the evidence
presented at trial. To the extent White argued at oral argument that Attorney Brizzi was
ineffective for failing to present evidence at trial that would have supported giving the jury
the residency examples found in Chapter 3-5-5, we have already concluded that Attorney
Brizzi was not ineffective for not presenting the evidence that White now claims he should
have presented.25 More importantly, these examples were essentially covered by the
language of Instruction 18. And to the extent that White argues that Attorney Brizzi should
have instructed the jury based on “Bayh” and “Evrard,” see Appellant’s Br. p. 69, he does
not provide this Court with any examples of what such jury instructions would have said.
Accordingly, White has failed to prove that Attorney Brizzi was ineffective in this regard.
D. Cumulative Error
White contends that the cumulative effect of Attorney Brizzi’s errors rendered the
representation ineffective. “Errors by counsel that are not individually sufficient to prove
ineffective representation may add up to ineffective assistance when viewed cumulatively.”
French v. State, 778 N.E.2d 816, 826 (Ind. 2002) (quotation omitted). Here, however,
White has not established any errors by Attorney Brizzi; therefore, there can be no
cumulative error. See Lucas v. State, 499 N.E.2d 1090, 1098 (Ind. 1986) (explaining that
alleged errors that do not present a single basis for reversal “do not gain the stature of
reversible error when viewed en masse”).
25
At oral argument, White’s attorney argued that Attorney Brizzi should have presented the
testimony of White and White’s ex-wife as well as White’s mail. See Oral Arg. at 54:24, available at
http://goo.gl/MaLuCp.
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E. “Class of One” Claim
Finally, White claims that the “State violated [his] rights as a member of a ‘class of
one,’ protected by the Equal Protection Clause of the Fourteenth Amendment, prohibited
under 42 U.S.C. 1983, by intentionally treating him differently than others similarly
situated without a rational basis.” Appellant’s Br. p. 76. As support for his claim, White
directs us to “a partial list of similarly situated persons” in his original and amended
petitions for post-conviction relief. Id. at 77. Included on this list are judges, town-council
members, and political officers from around the state. See P-C App. p. 71-81, 1032-46.
The State argues that White is actually alleging selective prosecution. We agree:
White’s claims all circle back to his assertion that he and other political figures engaged in
essentially the same conduct, yet only White was prosecuted. See Oral Arg. at 18:01,
available at http://goo.gl/MaLuCp (Chief Judge Vaidik: “Is your class-of-one claim really
in fact a selective-prosecution claim?” White’s attorney: “It’s different, but I understand to
your point as selective prosecution, yes, it would be to that extent but it’s a class of one in
that he was specifically targeted . . . .”). White cannot succeed on this claim. “Persons
accused of wrongdoing can’t make class-of-one defenses to criminal charges.” Del
Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 902 (7th Cir. 2012) (citing United States v.
Armstrong, 517 U.S. 456, 464 (1996) & United States v. Moore, 543 F.3d 891, 901 (7th
Cir. 2008)), cert. denied. “[A] defense of selective prosecution is limited to racial
discrimination or other class-wide inequality . . . .” Id. The Seventh Circuit’s description
of the two forms of selective prosecution is particularly useful here:
The first is simply failing to prosecute all known lawbreakers, whether
because of ineptitude or (more commonly) because of lack of adequate
53
resources. The resulting pattern of nonenforcement may be random, or an
effort may be made to get the most bang for the prosecutorial buck by
concentrating on the most newsworthy lawbreakers, but in either case the
result is that people who are equally guilty of crimes or other violations
receive unequal treatment, with some being punished and others getting off
scot-free. That form of selective prosecution, although it involves
dramatically unequal legal treatment, has no standing in equal protection law.
The second form of selective prosecution, and the only one that is actionable
under the federal Constitution, is where the decision to prosecute is made
either in retaliation for the exercise of a constitutional right, such as the right
to free speech or to the free exercise of religion, or because of membership
in a vulnerable group.
Esmail v. Macrane, 53 F.3d 176, 178-79 (7th Cir. 1995) (internal citations omitted)
(citing Wayte v. United States, 470 U.S. 598, 607-08 (1985) & United States v. Smith, 953
F.2d 1060, 1063 (7th Cir. 1992)). White—a newsworthy lawbreaker who, as Secretary of
State, was responsible for ensuring the integrity and security of our state’s elections—is
alleging the first form of selective prosecution, and for that reason, his claim fails.26
III. Conclusion
Because three of White’s six convictions were improper, we remand to the trial
court with instructions to vacate White’s convictions on Counts 1, 5, and 6. We affirm
White’s remaining convictions, Counts 2 (perjury), 4 (voting in other precinct), and 7
(theft). With respect to White’s post-conviction claims, we conclude that Attorney Brizzi
was not ineffective. Because the trial court ordered White’s sentences to be served
concurrently, his sentence remains the same despite our instructions.
26
Even if we did not view White’s claim as one of selective prosecution, he has still waived it. “To
state a so-called ‘class-of-one’ equal protection claim, [the plaintiff] must allege that he was ‘intentionally
treated differently from others similarly situated and that there is no rational basis for the difference in
treatment.’” Geinosky v. City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012) (citations omitted). White does
not adequately support his “class of one” claim with cogent argument: he fails to explain how he was
intentionally treated differently from others similarly situated and address whether there was a rational basis
for the alleged difference in treatment.
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Affirmed in part, reversed in part, and remanded with instructions.
MAY, J., and BARNES, J., concur.
55