Robert Earl Davis v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Apr 09 2019, 8:50 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Robert Earl Davis Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Earl Davis, April 9, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-556
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Kathleen A.
Appellee-Respondent. Sullivan, Judge Pro Tempore
Trial Court Cause No.
45G02-1311-PC-8
Darden, Senior Judge.
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Statement of the Case
[1] Robert Earl Davis appeals the denial of his petition for post-conviction relief.
We affirm.
Issues
[2] Davis raises seven issues, which we consolidate and restate as:
I. Whether the State’s belated answer to Davis’ first petition
for post-conviction relief was an improper ex parte
communication.
II. Whether the post-conviction court erred in sustaining the
State’s objection to Davis’ questioning of a witness.
III. Whether the post-conviction court erred in rejecting Davis’
claim of ineffective assistance of trial counsel.
IV. Whether the post-conviction court erred in rejecting Davis’
claim of ineffective assistance of appellate counsel.
Facts and Procedural History
[3] The facts of Davis’ case, as stated by a panel of this Court in Davis’ prior
appeal, are as follows:
Alisha Williams lived with Parrish Myles, whom she had been
dating for sixteen years, and their two children, A.L. and D.M.,
in The Mansards Apartments in Griffith, Indiana. On the
morning of July 22, 2011, Alisha was running late for work so
she asked Parrish to take A.L., age eleven, and D.M., age five or
six, to day care. Around 9:30 a.m., Parrish put the children in
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his Chevrolet Tahoe. A.L. got in the front seat, and D.M. got in
the back seat. Parrish went to put trash in the dumpster when a
bronze-colored Toyota Camry with Illinois license plates and
registered to Davis pulled up.
The occupants of the Camry called out to Parrish, and Parrish
walked up to the passenger side of the car and briefly talked to
the two men in the car. As Parrish walked away from the
Camry, a shot was fired from inside the car, hitting him. A man
in a red-colored shirt, white tennis shoes, and hat exited the
driver’s side of the Camry and shot Parrish again. A man in a
white shirt stayed in the car and slid over to the driver's seat. The
man in the red-colored shirt and white tennis shoes got in the
passenger seat, and the man in the white shirt drove away. A.L.
witnessed the entire incident. Other residents in the apartment
complex heard the shots and called 911. One of the residents,
Rosa Orphey, had just finishing drinking tea on her patio when
she saw the man in the red-colored shirt shoot Parrish while he
was on the ground. Another resident, Krystle Gavin, was putting
antifreeze in her car when she heard the shots. Krystle said that a
man in a red-colored shirt had a gun and that his skin was darker
than the man’s skin in the car.
Griffith Police Department Officer Robert Carney responded to
reports that a gold sedan was leaving the scene of a shooting.
Officer Carney quickly located the car, which was stopped at a
red light at the intersection of Ridge Road and Broad Street.
Officer Carney noticed the car because a man was standing
outside the passenger side, walked around the car, and entered
the driver’s seat, thereby switching drivers. Although the man
was wearing a light-colored shirt instead of a red-colored shirt,
the man was wearing white tennis shoes, the same color as the
shooter’s shoes. Officer Carney activated his emergency lights.
The man, however, refused to stop, and a high-speed chase
ensued with the Camry reaching speeds of over 100 miles per
hour, running red lights, and weaving through traffic in
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residential areas and on I-80/94. At one point, the driver
stopped and dropped off the man in the white shirt, who was
wearing black tennis shoes. He disappeared along the Little
Calumet River carrying a red-colored shirt and a red hat as the
driver sped off. Officer Carney continued his pursuit of the
driver until Officer Carney crashed his car into a tree in a
residential area. Another officer continued chasing the driver,
and the chase ended when the driver, identified as forty-five-year-
old Davis from Chicago, crashed his Camry head-on into another
police officer’s car. The police collected Davis’s clothing, which
included a light-colored shirt and white tennis shoes. The
passenger of the car who had been dropped off at the Little
Calumet River, Davis’s twenty-nine-year-old nephew, Lyndon
Davis (“Lyndon”), also from Chicago, was eventually
apprehended.
Police responded to the scene of the shooting within minutes to
find Parrish lying face down in the roadway. Parrish was
breathing and moving slightly but quickly lost his pulse. An
ambulance transported Parrish to the hospital. Parrish was shot
four times and died from multiple gunshot wounds. A copper
bullet jacket was collected at the scene and bullet fragments were
collected from Parrish’s body. It was determined that the bullet
fragments and casings were fired from the same weapon, which
was never recovered. Police recovered a red-colored shirt and a
red hat on the river bank near the area where Davis had dropped
off Lyndon during the chase.
The State charged Davis with murder and felony murder, but the
State dismissed the felony-murder charge before trial. A five-day
jury trial began in January 2012. The State’s theory at trial was
that Davis was the shooter; the State uncovered no motive for the
murder. Davis’s theory was that “he had nothing to do with the
killing of Parrish Myles,” he did not have an agreement with
Lyndon, and the “only thing” he was guilty of was “fleeing from
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the police.” Tr. p. 762-63. The trial court instructed the jury on
accomplice liability. The jury found Davis guilty of murder.
Davis v. State, No. 45A03-1203-CR-145, slip op. at 1-2 (Ind. Ct. App. 2013),
trans. denied.
[4] The trial court sentenced Davis to serve sixty-five years. He appealed,
claiming: (1) the trial court erred in instructing the jury; (2) the prosecutor
committed misconduct; (3) the evidence was insufficient to sustain his
conviction; and (4) his sentence was inappropriate in light of the nature of the
offense and his character. A panel of this Court rejected Davis’ claims and
affirmed his conviction and sentence. See id. at 9.
[5] On November 8, 2013, Davis filed a pro se petition for post-conviction relief
with a supporting memorandum. The post-conviction court ordered the State
to file an answer on or before January 7, 2014. The State belatedly filed an
answer on January 15, 2014. According to Davis, he did not receive a copy of
the answer and was unaware one had been filed. Next, Davis requested
representation by the Office of the State Public Defender (SPD). The post-
conviction court forwarded Davis’ petition to the SPD, who ultimately declined
to represent Davis.
[6] On February 16, 2016, Davis moved to withdraw without prejudice his petition
for post-conviction relief. The post-conviction court granted his motion and
deemed the petition withdrawn without prejudice.
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[7] On April 28, 2016, Davis refiled his petition for post-conviction relief with a
supporting memorandum. He later sought and received permission to amend
the petition, raising claims of ineffective assistance of trial and appellate
counsel. On January 26, 2017, an attorney filed an appearance on behalf of
Davis. Counsel filed an “Addendum” to Davis’ pro se petition for post-
conviction relief. Appellant’s App. Vol. 2, p. 5. On June 6, 2017, the post-
conviction court determined the Addendum should not have been filed, ruling
that a petition for post-conviction relief may only be amended. The post-
conviction court set a deadline of June 28, 2017, for Davis to amend his
petition, but he did not file any amendments.
[8] The post-conviction court held an evidentiary hearing on July 28, 2017. Next,
the parties filed proposed findings of fact and conclusions of law. On February
6, 2018, the post-conviction court issued findings of fact and conclusions of law,
denying Davis’ petition for post-conviction relief. Davis’ counsel subsequently
moved to withdraw from the case, and the post-conviction court granted the
motion. Davis filed a pro se motion to correct error, which the post-conviction
court denied. This appeal followed.
Discussion and Decision
I. Standard of Review
[9] Post-conviction procedures do not afford a petitioner with a super-appeal, and
not all issues are available for consideration. Lindsey v. State, 888 N.E.2d 319,
322 (Ind. Ct. App. 2008), trans. denied. Instead, subsequent collateral challenges
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to convictions must be based on grounds enumerated in the post-conviction
rules. Id. If an issue was known and available, but not raised on direct appeal,
it is waived. Id. If it was raised on appeal, but decided adversely, it is barred by
the doctrine of res judicata. Id.[10] A petitioner for post-conviction relief has the burden of establishing the grounds
for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
When appealing the denial of a petition for post-conviction relief, the petitioner
is appealing a negative judgment. Rogers v. State, 827 N.E.2d 78, 80 (Ind. Ct.
App. 2005), trans. denied. Accordingly, the petitioner must convince us that the
evidence, as a whole, leads unerringly and unmistakably to a decision opposite
that reached by the post-conviction court. Id. We accept the post-conviction
court’s findings of fact unless they are clearly erroneous, but we do not defer to
the post-conviction court’s conclusions of law. Martin v. State, 740 N.E.2d 137,
139 (Ind. Ct. App. 2000), trans. denied. We examine only the probative
evidence and reasonable inferences that support the post-conviction court’s
determination, and we do not reweigh the evidence or judge witness credibility.
Id.[11] In this case, the judge who presided over the post-conviction hearing was also
the judge who conducted Davis’ original trial. We afford the post-conviction
court’s findings and judgment “greater than usual deference” in this
circumstance. McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct. App. 2012),
trans. denied. “[I]n such a case, the judge is uniquely situated to assess whether
trial counsel’s performance fell below an objective standard of reasonableness
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and whether, but for counsel’s unprofessional conduct, there was a reasonable
probability that a different verdict would have been reached.” Hinesley v. State,
999 N.E.2d 975, 982 (Ind. Ct. App. 2013), trans. denied.
[12] Further, we note that although Davis is proceeding pro se and lacks legal
training, we hold pro se litigants to the same standards as trained counsel.
Pannell v. State, 36 N.E.3d 477, 485 (Ind. Ct. App. 2015), trans. denied.
II. Due Process, Ex Parte Communications, and Untimeliness
[13] Davis claims the post-conviction court erroneously overlooked the State’s
failure to provide him with a copy of its belated answer to his original petition
for post-conviction relief. He claims he did not learn of the State’s answer until
the evidentiary hearing on his refiled petition for post-conviction relief. Davis
concludes the State’s failure to serve the answer upon him renders the State’s
answer an improper ex parte communication that deprived him of his right to
due process of law under the federal and state constitutions.
[14] The State correctly notes that Davis did not raise his due process constitutional
claims during proceedings in the post-conviction court. He did not present the
due process claims during the evidentiary hearing or in his proposed findings
and conclusions. He may not present those claims on appeal for the first time.
See Walker v. State, 843 N.E.2d 50, 57 (Ind. Ct. App. 2006) (claims raised for the
first time on appeal are waived), trans. denied.
[15] Davis did argue to the post-conviction court that he was entitled to prevail
because the State’s failure to timely file its answer to his original petition, along
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with its failure to send him a copy of its answer, amounted to a default against
his claims. He has failed to include a copy of the State’s answer in his
Appellant’s Appendix. In any event, Davis fails to recognize that he withdrew
his original petition for post-conviction relief without prejudice on February 16,
2016, and subsequently filed a new petition. The proceedings on his original
petition were thus ended at his request. Davis does not explain how any
procedural shortcomings in the former post-conviction proceeding carried over
to the proceedings on his refiled petition for post-conviction relief.
[16] Further, in his Appellant’s Brief, Davis does not cite any authority for the
proposition that the State’s failure to timely respond to his petition for post-
conviction relief and/or serve a copy of the answer on him results in him
prevailing by default on the claims set forth in his petition for post-conviction
relief. Each contention in an appellate brief “must be supported by citations to
the authorities . . . .” Ind. Appellate Rule 46(A)(8)(a).
[17] In any event, post-conviction courts are vested with discretion in permitting
documents to be filed despite untimeliness or defects in service. See, e.g.,
Rondeau v. State, 48 N.E.3d 907, 914 (Ind. Ct. App. 2016) (post-conviction court
did not err in allowing State to file signed discovery responses after the due date
had expired; petitioner failed to demonstrate prejudice from the decision), trans.
denied. We will not address this claim further.
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III. Scope of Post-Conviction Witness Questioning
[18] Davis claims the post-conviction court abused its discretion during the post-
conviction evidentiary hearing by sustaining the State’s objection to his
questioning of his former appellate counsel. Specifically, he claims the post-
conviction court should have allowed him to continue questioning counsel
about counsel’s understanding of the ballistics evidence in Davis’ case. The
admission or exclusion of evidence is within the sound discretion of the post-
conviction court. Badelle v. State, 754 N.E.2d 510, 521 (Ind. Ct. App. 2001),
trans. denied. We will not disturb a post-conviction court’s evidentiary ruling
unless the post-conviction court has abused its discretion. Id. An abuse of
discretion occurs when the trial court’s decision “is clearly against the logic and
effect of the facts and circumstances and the error affects a party’s substantial
rights.” Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013).
[19] The following discussion occurred at the post-conviction evidentiary hearing
during Davis’ questioning of his former appellate counsel, Mark Bates:
Q. Mr. Bates, do you remember Henry Hatch, the crime lab
examiner?
A. I don’t remember his specific testimony. I do recall the
name as being a firearm’s [sic] examiner, I think.
Q. Do you recall him saying that copper jacket fragments
were found at the crime scene, but you stated casings were
found? Do you remember that?
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A. No.
Q. If you search for casings that are associated with a
weapon, does that normally come back associated with the
shell the bullet comes out of?
A. I’m no expert in that. I think there can be a link, but I
can’t say that with any certainty.
Q. If you were told that only casings were found at the scene
of the crime, what would your thoughts be?
[State]: Judge, I’m going to object as to relevance.
[PCR Court]: How is it relevant?
[Davis]: Mr. Appellate Counsel put that in his brief as
a statement of fact, Judge.
[PCR Court]: Is it raised as an issue in the PCR?
[Davis]: I’m sorry, Your Honor?
[PCR Court]: Is it raised had [sic] as an issue in the PCR?
[Davis]: I believe it has been, yes, Judge.
[PCR Court]: Can you direct the State to where it’s at?
[State]: Your Honor, I don’t remember that being in
the PCR. In fact, most of the argument is
directed toward trial counsel.
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[Davis]: My client raised the ineffective issue of
appellate counsel, but you mean the specific
issue?
[PCR Court]: They have to put 8A, and 9A or B, whatever,
has to have specific facts of ineffective
assistance, sure.
[Davis]: You mean regarding the casings versus the—
[PCR Court]: Yes. More importantly, was there an issue?
Was this relevant to one of the issues whether
it was fragments or casings in the appeal. Do
you recall?
[Witness Bates]: What I do recall, Your Honor, is that the gun
was never recovered, but I don’t believe there
was any issue about if those fragments could
be traced to a specific gun. I believe the
murder weapon was never recovered.
[PCR Court]: So there wasn’t an appellate issue that this
could be relevant to?
[Witness Bates]: No. I didn’t deem it to be relevant.
[PCR Court]: All right, the relevancy objection is sustained.
Next question?
[Davis]: We have no further questions.
PCR Tr. pp. 65-67.
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[20] Davis argues the post-conviction court’s ruling was erroneous because his line
of questioning was directly relevant to an issue he raised in his amended
petition for post-conviction relief: whether appellate counsel presented an
“erroneous assertion of the facts.” Appellant’s App. Vol. 2, p. 159. “Evidence
is relevant if: (a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Ind. Evid. Rule 401. In general, relevant evidence is
admissible, and irrelevant evidence is not admissible. Ind. Evid. Rule 402.
[21] It appears that Bates’ testimony about his understanding of the ballistics
evidence in Davis’ case tends to make it more or less probable that he
inaccurately described that evidence in Davis’ direct appeal briefs. Regardless,
Davis must demonstrate that any error in the post-conviction court’s
evidentiary ruling hindered his substantial rights. Davis did not explain to the
post-conviction court, and has not explained in this appeal, what Bates’
response to his question would have been if the post-conviction court had not
sustained the State’s objection. He also does not explain how Bates’ answer
would have supported his claim. Further, it does not appear that Davis has
been hindered from sufficiently presenting his claim of ineffective assistance of
appellate counsel, which we address below. We conclude Davis has failed to
demonstrate reversible error on this point.
IV. Assistance of Trial Counsel
[22] Davis argues the post-conviction court erred in rejecting his claims of ineffective
assistance of trial counsel. The standard by which we review such claims is
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well established. In order to prevail on a claim of ineffective assistance of
counsel, a defendant must meet a two-part test, showing: (1) counsel’s
performance fell below an objective standard of reasonableness based on
prevailing professional norms; and (2) there is a reasonable probability that, but
for counsel’s errors, the result of the proceeding would have been different.
Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005), trans. denied. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Shanabarger v. State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans.
denied. The two parts of this test are independent inquiries, and a claim that
fails to establish both parts must fail. Id.[23] A strong presumption exists that counsel rendered adequate assistance and used
reasonable professional judgment. Thomas v. State, 965 N.E.2d 70, 76 (Ind. Ct.
App. 2012), trans. denied. In determining strategy and tactics, counsel is
afforded considerable discretion, and isolated mistakes, poor strategy,
inexperience, or instances of bad judgment do not necessarily render
representation ineffective. Id. Further, in order to prove ineffective assistance
of counsel due to a failure to object, a party must prove that an objection would
have been sustained if made and, further, that the party was prejudiced by the
failure. Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001).
A. Motion to Suppress
[24] Davis first claims that his trial counsel, Lemuel Stigler, should have filed a
motion to suppress evidence, specifically the clothes that Davis was wearing
when he was arrested and incarcerated. Davis claims: (1) at the time of his
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incarceration in the Lake County Jail, the jail permitted inmates to release
personal possessions, including the clothes that the inmate was wearing at the
time of arrest, to persons designated by inmates; (2) Davis filled out a form
notifying jail officials to release his clothes and other personal property to his
sister; (3) the jail failed to release his clothes to his sister on August 5, 2011, in
violation of jail policy; and (4) the jail improperly retained his clothes until
January 6, 2012, three weeks before trial, when the police obtained a search
warrant for the clothes. Davis thus argues that the jail “illegally seized” his
clothes, Appellant’s Br. p. 21, that the seizure prejudiced his defense, and that
his trial counsel should have sought a ruling that the clothes were inadmissible
at trial.
[25] Davis, as the petitioner for post-conviction relief, bore the burden of proving his
claim. Viewing the facts in the light most favorable to the judgment, Davis
failed to carry his burden as to whether the jail had a policy of releasing
inmates’ clothes to the inmates’ designees. Jimmy Purvis, who worked at the
Lake County Jail when Davis was incarcerated there, testified at the post-
conviction hearing. Purvis explained that when an inmate fills out a personal
property release form, “all property is released except for the inmate’s
immediate clothing, which is what he would wear if he was suddenly released.”
PCR Tr. p. 56. He further stated, “We never release clothing at all. Due to the
fact of the nature of them being there, they could be released at any time, we
always kept pants, shoes, socks, shirts, things of that nature. The property that
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would have been returned to the family would have been keys, wallet, IDs,
things like that . . . .” Id. at 57.
[26] Davis asked the post-conviction court to take judicial notice of two copies of the
Lake County Jail’s inmate handbook, which purportedly supported his claim
that the jail was required to release clothing to an inmate’s designated recipients
upon request. The post-conviction court noted that the handbooks were revised
in 2015 and 2017, well after Davis was incarcerated in the jail, and declined to
take judicial notice of them. Davis cites to no authority demonstrating that the
trial court erred in refusing to take judicial notice. In any event, both the 2015
and 2017 handbooks plainly state the jail may retain personal items if they “are
needed for further investigation and/or to be retained as evidence.” Appellant’s
App. Vol. 2, pp. 199, 201.
[27] In summary, Davis failed to establish that the jail acted unlawfully in retaining
the clothes he was wearing at the time of his arrest, or that the failure to release
the clothes to his sister rendered the clothes inadmissible as evidence. Davis
points to testimony by Attorney Stigler that the local public defender’s office
could have also provided clothing to released jail inmates, but we cannot
reweigh the evidence. We agree with the post-conviction court that based on
the evidence presented here, if trial counsel had filed a motion to suppress, it
would have been denied. Counsel does not perform deficiently by failing to file
a motion that would have been denied. See Garrett v. State, 992 N.E.2d 710,
723-24 (Ind. 2013) (trial counsel not ineffective for failing to file motion to
dismiss; evidence demonstrated counsel would not have prevailed).
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B. Witness Cross-Examination
[28] Davis next argues Attorney Stigler failed to adequately cross-examine a child
witness, A.L., about discrepancies between her trial testimony and her
deposition. Eleven-year-old A.L. had witnessed the murder of Myles, her
father. Davis characterizes his trial counsel as having a “conflict of interest,”
Appellant’s Br. p. 27, stating that counsel allowed his compassion for A.L. to
overwhelm his duty to “zealously represent” Davis. Id. at 22. The post-
conviction court rejected Davis’ characterization of a conflict of interest,
determining that counsel’s decisions during cross-examination of A.L. were
instead based on a “strategic” decision not to alienate the jury against him and
Davis. Appellant’s App. Vol. 2, p. 221.
[29] The record supports the post-conviction court’s determination. During the
original trial, Attorney Stigler used A.L.’s deposition to cross-examine her on
one topic, pointing out inconsistencies in her statements on the distance
between Myles’ vehicle and the shooter’s vehicle at the time of the murder.
[30] Later, while answering questions from the jury, A.L. stated she had been shown
pictures during her deposition. At that point, the parties approached the bench
for a conference outside the jury’s hearing. Attorney Stigler told the trial court
that the parties agreed that A.L. was not shown any photos during the
deposition, and she misspoke. He further stated that the parties agreed to
stipulate that she was not shown any photos during the deposition in lieu of
further examination. Attorney Stigler explained, “I don’t want her to appear to
be lying and I don’t want it to appear that I’m trying to take advantage of her.”
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Trial Tr. Vol. 3, pp. 460-61. After A.L. left the witness stand, the trial court
told the jury the parties had stipulated that no pictures were shown to A.L.
during her deposition.
[31] During the post-conviction hearing, Attorney Stigler testified as follows when
he was asked about impeaching A.L.:
These are—with children it’s sort of delicate. You don’t want the
jury to get—to hate you. To have it in for your client because
you, as the attorney, are going very, very hard at these children.
If there were inconsistencies that I was not able to bring out, then
I probably referred to the deposition, but I’m certain that I was
careful not to antagonize the jury by really, really going after the
child.
PCR Tr. p. 4. He further explained:
My experience, I’ve done a number of cases where children have
been witnesses. And it’s my impression that juries do not like,
regardless of whether—of the status of that particular child
witness. They do not like you, as an attorney, being very, very
harsh with the children. So I did what I needed to do in order to
get out what I thought that I needed. I did not want the jury to,
let’s say, hate me, and therefore deal very, very harshly with Mr.
Davis.
Id. at 41-42.
[32] Attorney Stigler’s decisions regarding his cross-examination of A.L. were a
matter of strategy. Obtaining the joint stipulation regarding A.L.’s incorrect
statement, instead of continuing to cross-examine her directly, achieved
counsel’s goal—calling into question the validity of A.L.’s testimony—without
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potentially alienating the jury against him and Davis. See Tyra v. State, 574
N.E.2d 918, 924 (Ind. Ct. App. 1991) (trial counsel made strategic decision not
to object to testimony from arson victims about effect of arson on their lives;
counsel believed the trial judge would have overruled the objection and thus
potentially alienated the jury for no benefit), trans. denied. We reject Davis’
claim that counsel had a conflict of interest. To the contrary, the
uncontradicted evidence demonstrates Davis’ trial counsel attempted to make
the best case possible for his client under the circumstances. The post-
conviction court did not err in rejecting this claim of ineffective assistance.
C. Jury Instruction on Accomplice Liability
[33] Davis claims his trial counsel rendered ineffective assistance by failing to object
to a jury instruction on accomplice liability. Davis attempted to challenge the
jury instruction on direct appeal, but this Court determined the issue was
procedurally defaulted due to trial counsel’s failure to object at trial. Davis, No.
45A03-1203-CR-145, slip op. at 2. The Court instead considered whether the
jury instruction amounted to fundamental error, and it concluded the
instruction did not meet the high bar for such error. Id. at 4. As a result, during
post-conviction proceedings Davis challenged trial counsel’s failure to object.
[34] The post-conviction court determined Davis’ ineffective assistance claim based
on his challenge to the jury instruction was barred by res judicata because this
Court had addressed the instructional issue in Davis’ direct appeal. We
disagree. Res judicata applies when: (1) a former judgment was issued by a
court of competent jurisdiction; (2) the former judgment was rendered on the
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merits; (3) the matter now in issue was or could have been determined in the
prior action; and (4) the controversy adjudicated in the former action must have
been between the same parties to the present suit or their privies. Dexter v. State,
991 N.E.2d 171, 175 (Ind. Ct. App. 2013), trans. denied.
[35] In the current case, Davis’ jury instruction challenge, raised during post-
conviction proceedings in the context of ineffective assistance of counsel, is
different than a jury instruction challenge raised on direct appeal in the context
of fundamental error, and could not have been determined in his prior appeal.
See Benefield v. State, 945 N.E.2d 791, 805 (Ind. Ct. App. 2011) (“[W]e conclude
that when a claim of ineffective assistance of trial counsel is based on a failure
to object, and that error was advanced as fundamental error on direct appeal, a
finding that the error did not rise to fundamental error does not automatically
rule out the possibility that the error resulted in prejudice sufficient to establish
ineffective assistance.”). We now turn to the merits of Davis’ ineffective
assistance claim.
[36] The standard of review for jury instructions is well-established:
Jury instructions should inform the jury regarding the law
applicable to the facts without being misleading and should
enable the jury to understand the case and arrive at a just, fair,
and correct verdict. The manner of instructing the jury lies
within the sound discretion of the trial court and we will not
reverse the trial court’s ruling unless the charge to the jury
misstates the law or is otherwise misleading. Jury instructions
must be considered as a whole and in reference to each other,
and even an erroneous instruction will not be reversible error if
the instructions taken as a whole do not misstate the law or
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otherwise mislead the jury. Before a defendant is entitled to a
reversal, he must affirmatively show that the instructional error
prejudiced his substantial rights.
Filice v. State, 886 N.E.2d 24, 37 (Ind. Ct. App. 2008) (citations omitted), trans.
denied.
[37] In reviewing a challenge to a jury instruction, we consider: (1) whether the
instruction is a correct statement of the law; (2) whether there was evidence in
the record to support giving the instruction; and (3) whether the substance of
the instruction is covered by other instructions given by the court. Boney v.
State, 880 N.E.2d 279, 293 (Ind. Ct. App. 2008), trans. denied. Because Davis
presents this claim in the context of an allegation of ineffective assistance of
counsel, he must show a reasonable probability that if trial counsel had objected
to the instruction, the objection would have been sustained. Garrett, 992
N.E.2d at 723.
[38] In this case, the trial court’s jury instruction on accomplice liability stated as
follows:
Where two or more persons engage in the commission of an
unlawful act; each person may be criminally responsible for the
actions of each other person which were a probable and natural
consequence of their common plan even though not intended as
part of the original plan. It is not essential that participation of
any one person to each element of the crime be established.
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A person who knowingly or intentionally aids, induces, or causes
another person to commit an offense commits that offense, even
if the other person:
1. has not been prosecuted for the offense;
2. has not been convicted of the offense; or
3. has been acquitted of the offense.
To aid under the law is to knowingly aid, support, help or assist
in the commission of a crime. Mere presence at the scene of the
crime and knowledge that a crime is being committed are not
sufficient to allow an inference of participation. It is being
present at the time and place and knowingly doing some act to
render aid to the actual perpetrator of the crime.
The presence of a person at the scene of the commission of a
crime and companionship with another person engaged in the
commission of the crime and a course of conduct before and after
the offense are circumstances which may be considered in
determining whether such person aided and abetted the
commission of such crime.
Trial Tr. Vol. 5, pp. 779-80.
[39] Davis claims the instruction misstated the law because it told the jury to
consider his course of conduct before and after the murder but failed to state
that they should consider his conduct during the murder as well. We disagree
because other language in the instruction directed the jury to consider Davis’
acts during the crime. The instruction informed the jury that “mere presence at
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the scene” was not enough; the State must prove a defendant was “present at
the time and place and knowingly doing some act to render aid.” Id. In
addition, the jury was told it could consider a defendant’s presence at the
shooting as a circumstance in its determination. The trial court did not abuse
its discretion in giving the instruction. See Boney, 880 N.E.2d at 294-95
(determining jury instruction correctly stated the law on accomplice liability;
instruction did not explicitly state that jury had to determine Boney had the
mens rea to commit murder, but the instruction, read as a whole, sufficiently
informed the jury of the required mental state).
[40] The instruction correctly stated the law. If Attorney Stigler had objected to the
instruction, the objection would have been properly overruled. Davis has failed
to demonstrate that he was prejudiced by counsel’s failure to object, and the
post-conviction court did not err in rejecting this claim of ineffective assistance
of trial counsel.
D. Collective Impact
[41] Davis argues that Attorney Stigler’s errors, considered as a whole, amounted to
ineffective assistance. The cumulative effect of a number of errors can render
counsel’s performance ineffective. Grinstead v. State, 845 N.E.2d 1027, 1036
(Ind. 2006). In this case, we have determined that the post-conviction court did
not err in rejecting Davis’s three individual claims of ineffective assistance of
trial counsel. It follows that a claim of cumulative ineffective assistance must
also fail. We affirm the post-conviction court’s rejection of Davis’ claims of
ineffective assistance of trial counsel.
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V. Assistance of Appellate Counsel
[42] Davis claims his appellate counsel, Mark Bates, misstated the facts on appeal,
causing a panel of this Court to erroneously affirm his conviction. The Sixth
Amendment entitles a criminal defendant to the effective assistance of counsel
not only at trial, but also during a first appeal as of right. Donnegan v. State, 889
N.E.2d 886, 892 (Ind. Ct. App. 2008), trans. denied. The standard of review for
a claim of ineffective assistance of appellate counsel is identical to the standard
for trial counsel. Walker v. State, 988 N.E.2d 1181, 1190 (Ind. Ct. App. 2013),
trans. denied. That is, the petitioner must establish unreasonably deficient
performance by appellate counsel, resulting in prejudice. Id. “When raised on
collateral review, ineffective assistance of appellate counsel claims generally fall
into three basic categories: (1) denial of access to an appeal, (2) waiver of
issues, and (3) failure to present issues well.” Henley v. State, 881 N.E.2d 639,
644 (Ind. 2008).
[43] Davis’ claim falls under the third category: an allegation of failure to present
issues well. In Davis’ direct appeal, Attorney Bates stated once in the twenty-
eight-page appellant’s brief that “casings” were submitted to ballistics testing.
Appellant’s App. Vol. 2, p. 76. In the appellee’s brief, the State also referred to
a “copper bullet jacket” and “casings” being found at the scene. Id. at 107. A
panel of this Court referred to a “copper jacket bullet” and “casings” found at
the scene. Davis. No. 45A03-1203-CR-145, slip op. at 2.
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[44] Davis argues Attorney Bates misstated the facts because no casings were found
in this case. Instead, he notes the State’s ballistics examiner, Henry Hatch,
testified at trial that he received “two spent bullet jacket fragments.” Trial Tr.
Vol. 4, p. 536. Davis claims his attorney’s alleged misstatement amounted to
deficient performance.
[45] We reject Davis’ claim on multiple grounds. First, Davis bore the burden of
explaining, with citations to supporting evidence, the difference between a
casing and a bullet jacket, and, further, why any misstatement of the facts
damaged his case. Davis’ appellant’s brief does not include such an
explanation.
[46] Second, Davis has failed to demonstrate that any misstatement by counsel
amounted to unreasonably deficient performance. Davis has never disputed
that someone shot Myles to death on the day in question, and that ballistics
evidence was found at the scene. Davis has instead merely claimed that he was
not involved in the murder. Further, the murder weapon was never found. As
a result, the ballistics evidence was peripheral to the State’s criminal charge of
murder against Davis, and it is unclear that counsel’s isolated, one-time
potentially erroneous description of ballistics evidence under these
circumstances amounted to deficient performance.
[47] Third, appellate counsel’s alleged misstatement did not unduly prejudice Davis’
case. Counsel presented four issues: error in jury instructions, prosecutorial
misconduct, sufficiency of the evidence, and appropriateness of Davis’
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sentence. Of these claims, the ballistics evidence could have been pertinent to
the sufficiency claim. However, Davis did not discuss the ballistics evidence in
conjunction with the sufficiency claim, and the Court of Appeals panel did not
discuss that evidence either. As a result, any misstatements by Davis’ appellate
counsel did not affect the outcome of his appeal. Put another way, Davis failed
to show a reasonable probability that the Court of Appeals’ decision in his
direct appeal would have been different absent any misstatement.
[48] On a related note, Davis claims the post-conviction court erred in the course of
ruling on Davis’ claim of ineffective assistance of appellate counsel. The post-
conviction court determined that on direct appeal, a panel of this Court
mentioned casings only once in the memorandum decision, and “[t]hat finding
was not the basis for the appellate court’s resolution of any of the issues –
including the issue of the sufficiency of the evidence. Any error in failing to
correct this terminology was harmless, at best.” Appellant’s App. Vol. 2, p.
223. Davis bore the burden of proving any deficient performance by appellate
counsel resulted in undue prejudice, and on this issue, he failed to carry his
burden. The post-conviction court did not err. See Santonelli v. State, 743
N.E.2d 1281, 1285 (Ind. Ct. App. 2001) (petitioner suffered no prejudice, and
thus did not receive ineffective assistance of counsel, as a result of appellate
counsel’s failure to include portions of the trial record in the appellate record
because the error was harmless), trans. denied.
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Conclusion
[49] For the reasons stated above, we affirm the judgment of the post-conviction
court.
[50] Affirmed.
Baker, J., and Robb, J., concur.
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