MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Dec 05 2017, 9:14 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
Ronnie Jones                                             Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ronnie Jones,                                            December 5, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         71A03-1611-PC-2611
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Respondent.                                     Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1207-PC-32



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017            Page 1 of 18
                                       Statement of the Case
[1]   Ronnie Jones appeals from the post-conviction court’s denial of his petition for

      post-conviction relief. Jones raises five issues for our review, which we restate

      as the following two issues:


              1.      Whether he was denied the effective assistance of trial
                      counsel.

              2.      Whether the post-conviction court erred when it denied
                      Jones’ request to subpoena additional witnesses to testify
                      at his hearing on his petition for post-conviction relief.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts underlying Jones’ convictions were stated by this court on direct

      appeal:


              On February 28, 2010, at approximately 12:30 a.m., George
              Ladell Howell went to visit Jones. Another man, Anthony
              Williams (“Tony”) was at Jones’ residence, along with his sister
              and Jones’ girlfriend, Grace Williams. While drinking alcoholic
              beverages, the three men played “chess and stuff.” (Tr. 14). At
              one point, Howell heard Grace call out to Tony from another
              room, and Tony and Jones went back to the room to talk with
              her. Howell soon heard “scuffling and stuff,” and he decided to
              leave. Id.


              Howell was prevented from leaving by Jones’ large dog, which
              grabbed Howell by the hand and held him. Howell then saw
              Jones and Tony enter the room. Jones grabbed a knife and cut
              Tony, who then ran out the back door. Howell requested that
      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 2 of 18
        Jones call the dog off him; however, instead of procuring
        Howell’s release, Jones brandished a large knife. Howell pulled
        his hand out of the dog’s mouth and grabbed a knife, but Jones
        pulled the knife from Howell’s hand and began stabbing him.
        Howell attempted to fight off Jones with a skillet, but Jones
        continued to stab him. Howell began having trouble breathing
        and everything began to appear hazy to him. He then lost
        consciousness.


        While Jones was stabbing Howell, someone called 911 and hung
        up. South Bend Police Officer Jamil Elwaer was dispatched to
        Jones’ apartment; and as he arrived, he heard screaming coming
        from the residence. Officer Elwaer could see through the glass
        portions of the doors to the residence and observed Jones
        wielding a knife reverse grip style in his right hand. Several
        times, he heard Jones yelled “f***ing n****r, I got you . . . .”
        (Tr. 28). As Officer Elwaer went up the steps, he yelled for Jones
        to drop the knife, but Jones refused. Officer Elwaer heard
        another male voice say, “[H]elp me, I’m dying.” (Tr. 30).


        At about this time, Officer Elwaer saw Grace appear “out of
        nowhere,” step between the officer and Jones, and begin to
        manipulate the lock on the inside door. Officer Elwaer then saw
        Jones lunge at the prone body of Howell, making several
        downward stabbing motions with the knife. Officer Elwaer
        observed that Howell looked helpless and that “[t]here was blood
        gushing out all over the place from his upper torso.” (Tr. 34).
        Officer Elwaer determined to protect Howell by shooting Jones
        but was prevented from doing so because Grace was in the way.


        Soon thereafter, Jones disappeared into another room and came
        back after a few seconds. Jones unlocked the door, and Officer
        Elwaer and other officers subdued him as he tried to run away.
        During and after the struggle, Jones kept screaming that he
        hoped Howell would die.


Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 3 of 18
        Officers began assisting Howell, who had sustained thirty-seven
        knife wounds. Howell was finally taken by ambulance to the
        hospital, where he received treatment that saved his life.


        On March 10, 2010, the State charged Jones with Count 1,
        attempted murder. The charge was later amended to include a
        habitual offender count.


                                                 ***


        The jury subsequently found Jones guilty of attempted murder,
        and he admitted that he was an habitual offender.


        Later, Jones’ new counsel filed a “Motion for Judgment N.O.V.
        Or Alternatively For A New Trial,” alleging that Jones’ trial
        counsel was ineffective because counsel had inadvertently left the
        microphone at defense counsel's desk in the “on” mode. (Jones’
        App. 11). He further alleged that the jury and others in the
        courtroom had overheard confidential conversations between
        Jones and his counsel. After hearings on the motion, the trial
        court denied the motion.


        After a sentencing hearing, the trial court found no mitigating
        circumstances. As aggravating circumstances, the trial court
        found the violent trend of Jones’ criminal history and the nature
        and circumstances of the crime. The trial court sentenced Jones
        to forty years imprisonment for attempted murder and enhanced
        the sentence by thirty years because of the habitual offender
        finding.


Jones v. State, No. 71A05-1011-CR-740, 2011 WL 3300331, at *1-2 (Ind. Ct.

App. Aug. 2, 2011). On direct appeal, Jones contended that the trial court

committed fundamental error when it did not declare a mistrial after the

Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 4 of 18
      investigating officer gave certain testimony, that the trial court abused its

      discretion when it denied his motion for a new trial, and that the trial court

      acted improperly when it used his criminal history as an aggravating

      circumstance while it used two prior convictions as the basis for the habitual

      offender enhancement. This court affirmed his conviction, habitual offender

      adjudication, and sentence.


[4]   Thereafter, Jones, pro se, filed a petition for post-conviction relief and alleged

      that he was denied the effective assistance of trial counsel. Jones filed with the

      post-conviction court a request that it issue subpoenas for several witnesses

      including Grace; Grace’s daughter, Donna May; Tony; Don Haywood, an

      investigator with the prosecutor’s office; Detective Ron Nowicki; and court-

      appointed public defender Brian May. The court held a hearing on Jones’

      request on October 15, 2015. On April 20, 2016, the post-conviction court

      issued an order that granted Jones’ request to issue a subpoena to May, but the

      court denied his request to issue subpoenas to the other witnesses because it

      found that a “Post-Conviction Relief evidentiary hearing is not an opportunity

      to retry the case.” Appellant’s App. Vol. II at 153. Following an evidentiary

      hearing on May 6, 2016, the post-conviction court entered detailed findings of

      fact and conclusions of law denying Jones’ petition for relief. This appeal

      ensued.


                                     Discussion and Decision
[5]   Jones appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review is clear:
      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 5 of 18
              The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
              (citations omitted). When appealing the denial of post-
              conviction relief, the petitioner stands in the position of one
              appealing from a negative judgment. Id. To prevail on appeal
              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. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
              Further, the post-conviction court in this case made findings of
              fact and conclusions of law in accordance with Indiana Post-
              Conviction Rule 1(6). Although we do not defer to the post-
              conviction court’s legal conclusions, “[a] post-conviction court’s
              findings and judgment will be reversed only upon a showing of
              clear error—that which leaves us with a definite and firm
              conviction that a mistake has been made.” Ben-Yisrayl v. State,
              729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).


      Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to

      Campbell).


                              Issue One: Effectiveness of Trial Counsel

[6]   Jones first contends that he received ineffective assistance from his trial counsel,

      Brian May.


              When evaluating an ineffective assistance of counsel claim, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
              State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
              prong, “the defendant must show deficient performance:
              representation that fell below an objective standard of
              reasonableness, committing errors so serious that the defendant
              did not have the ‘counsel’ guaranteed by the Sixth Amendment.”

      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 6 of 18
              McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
              Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
              second prong, “the defendant must show prejudice: a reasonable
              probability (i.e. a probability sufficient to undermine confidence
              in the outcome) that, but for counsel’s errors, the result of the
              proceeding would have been different.” Id. (citing Strickland, 466
              U.S. at 694, 104 S. Ct. 2052).


      Id. at 274.


              There is a strong presumption that counsel rendered adequate
              assistance and made all significant decisions in the exercise of
              reasonable professional judgment. Counsel is afforded
              considerable discretion in choosing strategy and tactics, and these
              decisions are entitled to deferential review. Isolated mistakes,
              poor strategy, inexperience, and instances of bad judgment do
              not necessarily render representation ineffective.


      Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (citations omitted).


[7]   Jones alleges that May committed four errors, namely: May failed to

      investigate the facts and circumstances of the case; he failed to interview Jones

      and other material witnesses; he failed to object to allegedly perjured statements

      and testimony of Howell; and he failed to advocate Jones’ claim of self-defense.

      We address each contention in turn.


                                         Professional Investigation

[8]   Jones first contends that May’s performance was deficient because May failed

      “to investigate the facts and circumstances of the case.” Appellant’s Br. at 24.

      Jones alleges that, because May did not conduct a professional investigation,


      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 7 of 18
       May did not learn and, thus, did not present to the jury statements by Grace

       and Tony that would have disputed aspects of Howell’s testimony. “While it is

       undisputed that effective representation requires adequate pretrial investigation

       and preparation, it is well settled that we should resist judging an attorney’s

       performance with the benefit of hindsight. Accordingly, when deciding a claim

       of ineffective assistance for failure to investigate, we apply a great deal of

       deference to the counsel’s judgment.” McKnight v. State, 1 N.E.3d 193, 200-01

       (Ind. Ct. App. 2013) (internal citations omitted). Further, “success on the

       prejudice prong of an ineffectiveness claim requires a showing of a reasonable

       probability of affecting the result.” Id. (quoting Woods v. State, 701 N.E.2d

       1208, 1214 (Ind. 1998), cert. denied (1999)).


[9]    The post-conviction court concluded, and we agree, that May “conducted a

       reasonable pretrial investigation” into the facts of the case. Appellant’s App.

       Vol. II at 110. At the May 6, 2016, evidentiary hearing, May testified that he

       interviewed Jones at the jail and discussed the case and discovery with him. He

       also testified that, “[b]ased on my conversations with [Jones] at the jail[,] I

       spoke to [Grace] any number of times.” Tr. 05-06-2016 at 14. Additionally,

       May testified that Grace “called me maybe once a week or more.” Id. at 20.

       He further testified that, prior to trial, he reviewed all of the evidence, such as

       crime scene photographs and “other state discovery.” Id. at 15.


[10]   Jones alleges that, had May conducted a professional investigation, May would

       have learned that Grace had removed Howell from her apartment several weeks

       prior to the incident due to sexual misconduct and told him to never return,

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 8 of 18
       which would have disputed Howell’s testimony that Jones had invited Howell

       over to play chess. It is unclear from the record whether Grace told May that

       she had kicked Howell out of her apartment prior to the night of the stabbing.

       However, it is clear from the record that May spoke with Grace numerous

       times about the case. And there is nothing in the record to show that, had May

       spoken with Grace more than he already had, that she would have provided

       him with this additional information.


[11]   Jones also alleges that, had May conducted a professional investigation, May

       would have learned that Tony had told Investigator Haywood that Jones had

       not stabbed him, which would have disputed Howell’s statements that Jones

       stabbed Tony before he stabbed Howell. It is apparent from the trial transcript

       that May knew that Haywood had interviewed Tony. During May’s direct

       examination of Investigator Haywood at Jones’ trial, May asked whether Tony

       was present the night of the incident. In response, the State asked to approach

       the bench, and the judge held a sidebar conference. During the sidebar

       conference, the State asked for a proffer of the witness to determine what May

       anticipated Investigator Haywood would say. In response, May stated that

       “[h]e is going to tell me that Tony . . . didn’t suffer any wounds to his

       person . . . .” Tr. 06-29-2010 at 92. After the conclusion of the sidebar

       conference, May elicited testimony from Investigator Haywood that, from the

       course of his investigation and to the best of his knowledge, Tony was not

       present during the incident. That questioning indicated that May had learned

       that Tony told investigator Haywood that Jones had not stabbed him.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 9 of 18
[12]   May met with Jones prior to trial and spoke with Grace several times. Further,

       May had learned that Haywood interviewed Tony and he questioned Haywood

       about this interview during trial. Therefore, Jones has not shown deficient

       performance on this issue.


                                            Professional Interviews

[13]   Jones next contends that May’s performance was ineffective because May failed

       to interview Jones, Grace, Donna, and Tony. Specifically, Jones contends that

       May “failed to conduct an in-depth, detailed, professional interview” of him

       and thus “failed to understand that Jones had multiple bumps, bruises, and

       knife cuts after being assaulted by [Howell] . . . .” Appellant’s Br. at 29.

       However, as discussed above, May testified at the post-conviction hearing that

       he met with Jones while Jones was at the jail to interview him and to discuss

       the case with him. And during Jones’ trial, May elicited Jones’ testimony that

       Howell grabbed a bottle and started hitting Jones with it. It is apparent that

       May had conducted an interview of Jones prior to his trial and that Jones’

       larger evidentiary point was put to the jury.


[14]   Jones further contends that May “failed to conduct a professional interview of

       [Grace], who would have informed counsel that when she came out of her

       bedroom she saw [Howell] sitting on the front door and that he was wearing

       only his underwear.” Id. But, again, May testified at the post-conviction

       hearing that he spoke with Grace several times prior to trial. And it is clear

       from the trial record that May spoke with Grace specifically about whether

       Howell was wearing pants during the incident. In particular, May asked Grace
       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 10 of 18
       at trial: “And did you see if [Howell] had on long pants or not?” Tr. 06-29-

       2012 at 97. Grace responded: “No, he had on underwear.” Id. As such, it is

       clear from the record that May had interviewed Grace prior to trial and had

       learned that she saw Howell wearing only his underwear. May did not fail to

       conduct an interview of Grace.


[15]   Jones also asserts that May failed to conduct a professional interview of Donna

       and Tony. During the post-conviction hearing, Jones asked May if he had

       interviewed Donna or Tony. May did not directly answer the question, but he

       conceded that those names did not sound familiar.


[16]   Nonetheless, the only information Jones contends Donna would have provided

       is that she was with Grace when they found Howell’s pants, which were uncut

       and without any bloodstains. Jones asserts that that information would have

       been contradictory to Howell’s testimony that he was wearing his pants when

       Jones stabbed him. However, Jones testified at trial that he woke up and saw

       Howell standing over him in just his underwear. Additionally, Grace testified

       at Jones’ trial that Howell did not have on pants during the incident. Therefore,

       the question of whether Howell was wearing pants or underwear had already

       been presented to the jury, and Donna’s testimony would not have added

       anything significant to Jones’ defense. Jones has not shown that he was

       prejudiced by May’s failure to interview Donna prior to trial.


[17]   Finally, Jones asserts that, had May interviewed Tony, May would have

       learned that Tony had been interviewed by Investigator Haywood and that


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 11 of 18
       Tony had not been stabbed by Jones. Again, Jones asserts that that information

       contradicted Howell’s testimony that Jones stabbed Tony before he stabbed

       Howell. However, as discussed above, it is apparent from the trial transcript

       that May already had that information. During May’s direct examination of

       Investigator Haywood, May asked whether Tony was present the night of the

       incident. During a sidebar conference and in response to the State’s request for

       a proffer of the witness to determine how May anticipated Haywood would

       answer the question, May stated that “[h]e is going to tell me that Tony . . .

       didn’t suffer any wounds to his person . . . .” Tr. 06-29-2010 at 92. Further,

       May elicited testimony from Investigator Haywood that, from the course of his

       investigation and to the best of his knowledge, Tony was not present during the

       incident. Because May had already gathered information that Tony was not

       present and had not been stabbed that evening, any failure to conduct a formal

       interview of Tony did not prejudice Jones.


                                             Testimony of Howell

[18]   Jones further contends that he was denied the effective assistance of counsel

       because May did not take a pretrial deposition of Howell and because May did

       not adequately cross-examine Howell. Specifically, Jones asserts that May

       failed to challenge Howell’s testimony with evidence that, approximately one

       month prior to the incident, Grace had told Howell to leave and never return;

       that Tony had not been stabbed by Jones; that Jones told Howell and Tony to

       leave the apartment at approximately 2:00 A.M.; and that Howell was attacked

       by Grace’s dog when he tried to enter her bedroom.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 12 of 18
[19]   In regards to May’s decision to not depose Howell prior to the trial, this

       amounts to an attack on May’s strategy. We agree with the post-conviction

       court that Jones did not overcome “the presumption that there were strategic

       reasons for Attorney May’s decisions at trial.” Appellant’s App. Vol. II at 110.

       During the evidentiary hearing, May testified that an attorney can “tip your

       hand and depose somebody or you can cross[-]examine them at trial. I prefer

       the second method.” Tr. 05-06-2016 at 63. It is apparent that May made a

       strategic decision when he decided to not tip his hand and depose Howell prior

       to the trial. Further, May cross-examined Howell and asked him if there was

       any reason why he had his pants off that evening, asked if Jones ever told him

       to leave the apartment, asked if he ever went to the apartment uninvited, asked

       about Howell’s prior burglary conviction, and questioned him on whether he

       had told police that Tony had been injured. Jones has not shown either

       deficient performance or prejudice on this issue.


[20]   Jones further asserts that May should have objected to Howell’s testimony

       because the testimony was perjured.1 This argument is without merit. To

       support his assertion that Howell perjured himself, Jones claims that Grace told

       Howell to leave the apartment and never return approximately one month

       before the incident. Jones claims that this information conflicted with Howell’s

       testimony that he was invited to play chess at the apartment. Grace testified at



       1
         To the extent Jones makes a separate claim of prosecutorial misconduct because, as he claims, the State
       knowingly elicited the perjured testimony of Howell, he has waived this argument because it was available,
       but not argued, on direct appeal. See Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017        Page 13 of 18
       Jones’ trial, but she did not testify that she had told Howell to leave the

       apartment and never return. Jones also claims that Tony had never been in a

       fight with Jones. To contradict Howell’s claim that Jones stabbed Tony before

       he stabbed Howell, May elicited the testimony of Investigator Haywood, who

       testified that Tony was not present at the apartment during the incident. May

       also questioned Jones about that night, and Jones was able to give his version of

       the events. Jones also testified that his dog would not attack on command.

       There was testimony at trial that conflicted with Howell’s, but “contradictory or

       inconsistent testimony by a witness does not constitute perjury.” Coleman v.

       State, 946 N.E.2d 1160, 1167 (Ind. 2011) (quoting Timberlake v. State, 690

       N.E.2d 243, 253 (Ind. 1997)). Even though there was testimony at trial that

       conflicted with Howell’s testimony, Jones he has not presented any proof that

       Howell perjured himself. As such, Jones has not shown deficient performance

       on this issue.


                                              Self-Defense Claim

[21]   Finally, Jones contends that May failed to “advocate the defendant’s claim of

       self-defense[.]” Appellant’s Br. at 39. The post-conviction court concluded that

       May’s performance on this issue was not deficient at trial. As the court

       observed, May “cross-examined the witnesses, guided [Jones] through his

       testimony at trial, argued objections to the trial judge, and gave a closing

       statement that attempted to convince the jury that [Jones] acted in self-defense.”

       Appellant’s App. Vol. II at 109. The court further stated that “May argued a

       theory of defense that the jury did not accept.” Id. We agree. May called

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 14 of 18
       Jones as a witness to testify about his version of the events that happened on the

       night he stabbed Howell. Further, May called Grace and Investigator

       Haywood to testify as defense witnesses. Finally, May re-asserted Jones’ self-

       defense claim in his closing argument. Jones has not shown deficient

       performance or prejudice on this issue. We hold that the post-conviction court

       did not err when it concluded that Jones was not denied the effective assistance

       of trial counsel.


                                Issue Two: Denial of Subpoena Request

[22]   Jones next contends that the post-conviction court abused its discretion when it

       denied his request for the issuance of subpoenas to certain potential witnesses.

       To determine whether to issue subpoenas, the post-conviction court has broad

       discretion. Johnson v. State, 832 N.E.2d 985, 994 (Ind. Ct. App. 2005), trans.

       denied. “An abuse of discretion has occurred if the court’s decision is against

       the logic and effect of the facts and circumstances before the court.” Id. Our

       Post-Conviction Rules provide, in relevant part that:


               If the pro se petitioner requests issuance of subpoenas for
               witnesses at an evidentiary hearing, the petitioner shall
               specifically state by affidavit the reason the witness’ testimony is
               required and the substance of the witness’ expected testimony. If
               the court finds the witness’ testimony would be relevant and
               probative, the court shall order that the subpoena be issued. If the
               court finds the proposed witness’ testimony is not relevant and probative,
               it shall enter a finding on the record and refuse to issue the subpoena.


       Ind. Post-Conviction Rule 1(9)(b) (emphasis added). Here, to support his claim

       that he was denied effective assistance of counsel, Jones requested subpoenas
       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 15 of 18
       for numerous witnesses and filed an affidavit in support of his request. The

       witnesses he sought to subpoena included Grace, Donna, Tony, Investigator

       Haywood, Detective Ron Nowicki, and May.


[23]   The post-conviction court issued an order that granted Jones’ request to issue a

       subpoena to May but denied his request to issue subpoenas to the other

       witnesses. On appeal, Jones contends that the court’s denial of the subpoenas

       was improper because the testimony of each witness would be relevant and

       probative at the post-conviction stage. We cannot agree.


[24]   Jones claimed that Grace and Donna would both testify that they had found

       Howell’s pants at the apartment, which were not cut and did not have blood on

       them, contrary to Howell’s testimony that he was wearing pants at the time of

       the incident. However, as explained above, Jones testified at trial that he woke

       up and saw Howell standing over him in just his underwear. Additionally,

       Grace testified at Jones’ trial that Howell did not have on long pants, but

       instead, had on underwear during the incident. Therefore, the additional

       testimony of Grace and Donna at the post-conviction hearing would have been

       cumulative of the testimony presented at trial.


[25]   Jones further claimed that Tony would testify that Jones did not stab him before

       Jones stabbed Howell, which would have disproved Howell’s story that Jones

       stabbed Tony first. Again, that testimony of Tony would have been cumulative

       of the trial evidence. During May’s direct examination of Investigator




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 16 of 18
       Haywood, May elicited testimony that, from the course of his investigation and

       to the best of his knowledge, Tony was not present during the incident.


[26]   Jones also asserted that Investigator Haywood would testify that, during his

       interview of Tony, he had learned that Jones did not stab Tony first, that he had

       seen Howell’s pants on the couch, and that the pants did not have blood on

       them, all of which would have been contrary to Howell’s testimony. As

       mentioned above, Investigator Haywood had already testified at trial that Tony

       was not present during the incident. As such, any testimony about Tony’s

       presence at the apartment by Investigator Haywood at the post-conviction

       hearing would have been cumulative to the testimony he gave at Jones’ trial.

       Additionally, any testimony Investigator Haywood would have given about the

       location of Howell’s pants would have been cumulative of the testimony Grace

       and Jones gave at trial.


[27]   Finally, Jones claimed that Detective Nowicki would testify that he had

       investigated the crime scene and had found Howell’s pants on the couch and

       that the pants did not have blood on them, which would have been in conflict

       with Howell’s testimony. As discussed above, Jones and Grace both testified at

       trial that Howell was not wearing pants during the incident. Again, any

       testimony that Detective Nowicki would have given at the post-conviction

       hearing would have been cumulative of the testimony Grace and Jones gave at

       trial.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 17 of 18
[28]   We cannot conclude that the post-conviction court abused its discretion when it

       denied Jones’ request for subpoenas of several potential witnesses. Jones’

       summaries of anticipated testimony amounted to evidence that was cumulative

       of trial evidence. Because the proposed witnesses’ testimony was not relevant

       and probative, the court was not required to issue the subpoenas.


[29]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-PC-2611 | December 5, 2017   Page 18 of 18
