Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

DAVID T. PAGE                                       GREGORY F. ZOELLER
Pittman & Page                                      Attorney General of Indiana
Indianapolis, Indiana
                                                    MICHAEL GENE WORDEN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                                                           Aug 11 2014, 10:33 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

DONALD WOODS,                                       )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 49A02-1310-PC-858
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                        APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable Grant W. Hawkins, Judge
                         The Honorable Christina Klineman, Commissioner
                                Cause No. 49G05-0703-FA-45266



                                         August 11, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Donald Woods appeals the denial of his petition for postconviction relief. In his

petition, he maintains that he was denied his constitutional right to effective assistance of

counsel based on his attorney’s alleged in-court failure to develop defenses, call certain

experts, and conduct thorough cross-examination as well as his alleged out-of-court failure to

investigate crime scenes. Finding that he failed to establish that he was prejudiced by any of

his alleged errors, we affirm.

                                 Facts and Procedural History

       The facts as summarized in an unpublished memorandum decision on Woods’s direct

appeal and adopted in the postconviction court’s findings of fact are as follows:

               At approximately 3:00 a.m. on March 18, 2007, Jose Raines was home
       alone and asleep on his couch when a loud noise awakened him. He looked up
       to find Donald Woods standing over him. After the two men exchanged
       words, Woods pulled a gun out of his pocket, pointed it at Raines, and
       threatened to kill him. Woods asked Raines about money and property,
       including a Playstation and some DVDs. During this exchange, Raines
       grabbed for the gun. As the two men struggled, the gun discharged. The bullet
       went past Raines’ head and embedded in the wall behind him. Raines “felt the
       gunpowder and everything else.” As the struggle continued, the magazine fell
       out of the gun. Raines managed to push Woods out the back door of his
       apartment. Once outside, Woods continued to cock the gun back and forth as
       if it were jammed.

               Police officers arrived in response to a 911 call. When they were in
       front of Raines’ residence, they heard the distinct sound of a gun being cocked
       at the rear of the house. They saw Woods around the corner of the house. The
       officers told Woods to stop and drop his gun. Woods ran toward his residence,
       and the officers followed. Woods entered his house, placed a second magazine
       in the gun, opened the front glass storm door, and shot at one of the officers.
       The officer heard the bullet go by his head and returned fire. The officer’s
       shot hit Woods. The officers arrested Woods after he exited the house and
       doubled up on the front porch, injured from the officer’s shot.

                                              2
               The State charged Woods with two counts of attempted murder, a Class
        A felony; one count of attempted robbery, a Class B felony; one count of
        burglary, a Class B felony; one count of resisting law enforcement, a Class D
        felony; and one count of carrying a handgun without a license, a Class A
        misdemeanor. The jury found Woods guilty of all the charges.

Woods v. State, No. 49A04-0904-CR-192 (Ind. Ct. App. Apr. 16, 2010) (footnotes and

internal citations omitted).

        Woods appealed, challenging the sufficiency of evidence to support his conviction for

the attempted murder of Raines. Another panel of this Court affirmed. Woods subsequently

filed a petition for postconviction relief, claiming that his trial counsel (“Counsel”) provided

ineffective assistance by (1) failing to develop his self-defense claim; (2) failing to impeach

certain State witnesses; and (3) failing to investigate crime scenes and challenge certain

physical evidence.1 The evidence presented at the hearing consisted of exhibits (trial

transcripts and depositions) as well as testimony from Counsel and lengthy testimony from

Woods’s expert, Professor Frances Watson, director of the wrongful conviction clinic at the

Indiana University Robert H. McKinney School of Law. The postconviction court denied his

petition, and he now appeals. Additional facts will be provided as necessary.

                                      Discussion and Decision

        Woods contends that the postconviction court erred in denying his petition for

postconviction relief. The petitioner in a postconviction proceeding “bears the burden of

establishing grounds for relief by a preponderance of the evidence.” Ind. Postconviction


        1
             In his memorandum in support of his postconviction petition, Woods also alleged ineffective
assistance of appellate counsel. The postconviction court concluded that he waived this claim by failing to
raise it in his petition. Ind. Postconviction Rule 1(3)(b). This appeal concerns only Woods’s trial counsel.


                                                     3
Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). When issuing its decision to

grant or deny relief, the postconviction court must make findings of fact and conclusions of

law.   Ind. Postconviction Rule 1(6).       A petitioner who appeals the denial of his

postconviction petition faces a rigorous standard of review. Massey v. State, 955 N.E.2d 247,

253 (Ind. 2011). In conducting our review, we neither reweigh evidence nor judge witness

credibility; rather, we consider only the evidence and reasonable inferences most favorable to

the judgment. Id. “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.” Passwater, 989 N.E.2d at 770 (citation and quotation marks

omitted). In other words, if a postconviction petitioner was denied relief in the proceedings

below, he must show that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite the one reached by the postconviction court. Massey, 955 N.E.2d at 253.

         Section 1.0 – Ineffective Assistance of Counsel – Standard of Review

       Woods maintains that he was denied his constitutional right to effective assistance of

counsel. To prevail on an ineffective assistance claim, he must satisfy two components; he

must demonstrate both deficient performance and prejudice resulting from it. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Deficient performance is “representation [that] fell

below an objective standard of reasonableness, [where] counsel made errors so serious that

counsel was not functioning as ‘counsel’ guaranteed by the Sixth Amendment.” Passwater,

989 N.E.2d at 770. We assess counsel’s performance based on facts that are known at the

time and not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App.


                                              4
2006), trans. denied. Evidence of isolated poor strategy, inexperience, or bad tactics will not

support an ineffective assistance claim; instead, we evaluate counsel’s performance as a

whole. Flanders v. State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012).

“[C]ounsel’s performance is presumed effective, and a defendant must offer strong and

convincing evidence to overcome this presumption.” Ritchie v. State, 875 N.E.2d 706, 714

(Ind. 2007). “Strickland does not guarantee perfect representation, only a reasonably

competent attorney.” Hinesley v. State, 999 N.E.2d 975, 983 (Ind. Ct. App. 2013) (citation

omitted), trans. denied (2014).

         Prejudice occurs when a reasonable probability exists that, but for counsel’s errors, the

result of the proceeding would have been different. Passwater, 989 N.E.2d at 770. “A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Mitchell v. State, 946 N.E.2d 640, 643 (Ind. Ct. App. 2011), trans. denied. “Although the

performance prong and the prejudice prong are separate inquiries, failure to satisfy either

prong will cause the claim to fail.” Baer v. State, 942 N.E.2d 80, 91 (Ind. 2011).

         The postconviction court issued extensive findings of fact, which read in pertinent

part,2

         6.     Although Woods was initially represented by the Marion County Public
                Defender’s Office, Woods ultimately hired private counsel, [Counsel],
                who represented him for the last four months of the pre-trial period, as
                well as throughout the jury trial and sentencing. The Petitioner
                confines his ineffective assistance of counsel claim to the
                representation provided by Counsel before and during the trial. The
                court notes that much of the discovery conducted on behalf of


         Throughout the findings, the postconviction court referred to Woods’s counsel by name. We refer to
         2

him as Counsel.

                                                    5
     petitioner, including all the pre-trial depositions, was done by the public
     defender’s office. All such discovery was provided to Counsel.
     Counsel’s pre-trial representation included taking a second sworn
     statement of Officer Anderson and of Officer Vanek; filing defense
     witness lists on January 8, 2009, and February 23, 2009; arguing in
     opposition to the State’s 404(b) evidence (that Woods stole the gun,
     which he possessed during the alleged crimes, from Eric Dodson)
     during a hearing on the same.

              Throughout the jury trial, Counsel participated in voir dire
     including voicing appropriate challenges for cause; present[ed] an
     opening statement; cross-examined each of the State’s eleven witnesses
     in its case-in-chief and both of the State’s rebuttal witnesses; presented
     testimony from two witnesses for the defense who each claimed that
     they were eyewitnesses to portions of the altercation with Raines and
     the police, each maintaining that the [sic] Woods’ behavior was
     contrary to that testified to by State’s witnesses[;] presented evidence
     from Woods himself; voiced pertinent objections during trial; tendered
     a proposed jury instruction for D-felony criminal recklessness and made
     argument in support thereof regarding the attempted murder count
     involving Jose Raines; tendered a proposed jury instruction regarding
     impeachment and made argument in support thereof; successfully
     presented argument in support of the court giving a self-defense
     instruction as to the attempted murder count involving Jose Raines;
     asked the court to reconsider its refusal to instruct the jury as to
     criminal recklessness and made additional argument; presented a
     closing argument for the defense; [and] polled the jury as to their
     verdict.

            Following the trial Counsel did significant work in preparation
     for sentencing. His effectiveness in the sentencing hearing, and his
     preparation therefore, are not in question.

7.   Counsel has been an attorney for sixteen years. He has practiced
     throughout Indiana and has represented clients in a variety of cases
     including a substantial amount of criminal defense work. He estimates
     having handled one hundred fifty to two hundred major felony criminal
     cases. Counsel believes that he had tried approximately ten major
     felony jury trials as lead counsel prior to representing Woods and had
     tried another ten or so as co-counsel.

            …. Counsel obtained Woods’ file from deputy public defender

                                      6
Kathie Perry within a few days of being hired, and after reviewing said
file Counsel spoke with Ms. Perry and with [another deputy public
defender] about the case. In addition, Counsel went out in the
neighborhood and spoke with potential witnesses. Counsel testified
that his preparation also included examining all of the State’s
discovery, evidence, and exhibits; having numerous converastions [sic]
with his client; conducting legal research; preparing jury instructions;
and preparing for trial. Counsel believes that he did examine Woods’
body for scars from wounds as well as Woods’ medical records; he did
not photograph Woods’ body or conduct additional interviews of his
treating doctors.

       Counsel did not petition to view the crime scene in Raines’
house himself, although he reviewed the State’s evidence thoroughly.
The court recognizes that Counsel did not enter his appearance as
counsel in this case until October 17, 2008, nearly 19 months after the
case was filed. Counsel did not see a need to employ an expert
regarding blood patterns and could not recall if he interviewed crime
scene specialist Veronica Livers prior to trial.

        Counsel reviewed all of the State’s ballistics reports and did not
see anything that could be accomplished by having an independent
ballistics expert examine the evidence. Counsel no longer recalls if
there were two different opinions from the State’s experts regarding a
connection of the firearms evidence to his client’s gun, but he would
have reviewed any firearms experts’ reports discovered by the State.
Counsel did not believe that there was any chance that he could get that
.45 caliber shell casing excluded from the evidence.

        Counsel identified the “keys to the case” as self-defense, witness
credibility and physical evidence. Counsel testified that his theory of
the case was guided by his client’s version of the events which was
corroborated by testimony of the neighbor across the street as well as by
Woods’ uncle. His theme regarding the charging involving the officer
was that an unarmed and pointing Woods was shot by police who then
tried to cover up that Woods was unarmed (i.e. witness credibility and
lack of physical evidence). Counsel’s theme regarding the charges
against Raines was a struggle that resulted when Raines grabbed the
gun and also self-defense based again upon his client’s version of the
events which also asserted that Raines was the one who then shot at and
tried to kill Woods. Counsel felt that the best evidence regarding self-
defense was to let his client tell his truthful testimony about what

                                7
     occurred and also to cross-examine Raines and challenge his credibility.

             When asked about the prior incident in which Raines was
     alleged to have brandished a gun, followed by a police search of
     Raines’ house in response to a call from Woods, Counsel testified that
     he was aware of this incident before trial and did plan to elicit
     testimony about it to show his client’s fear of Raines and also to show a
     motive that Raines had to be angry with Woods. Counsel was not
     aware of the actual police report prior to trial though and did not plan to
     use it as documentary evidence. Counsel does not recall specifically
     but believes that if he did not object to the State’s motion in limine
     regarding prior bad acts, then he did not believe that said motion
     applied to this evidence regarding Raines’ possession of a firearm on
     previous date. When asked if he ultimately acquiesced to not
     presenting evidence about Raines’ prior brandishing of a gun, Counsel
     strongly disagreed. Counsel’s recollection is that he repeatedly pursued
     the issue and fought the point for his client.

8.   Frances Watson is a clinical professor of law and co-director of clinical
     programs at Indiana University’s Robert H. McKinney School of Law
     in Indianapolis. She directs the wrongful conviction clinic in which
     law students represent clients on “wrongful conviction” postconviction
     relief cases and on any related appeals. In the past, Ms. Watson worked
     with the criminal defense clinic in which law students represent
     defendants at the trial level, and she coached the trial team for more
     than ten years. She been involved with teaching at the law school for
     over twenty years and has been licensed to practice law since 1980.
     Ms. Watson has also worked in a public defender-type capacity, has
     tried over thirty jury trials, and was the first Chief Public Defender in
     Marion County, serving from 1993 to 1995. Early on in that position
     she had direct supervisory responsibility over all major felony public
     defenders.

             Ms. Watson volunteered her time regarding her preparation and
     testimony for Woods’ postconviction relief action. She was asked by
     Woods’ PCR counsel to be a witness regarding the performance of the
     trial lawyer. In preparation, she read the four-volume trial transcript.
     In Ms. Watson’s opinion, Counsel was ineffective and would have been
     given an “F” in trial practice. Ms. Watson specifically asserts that
     Counsel failed to adequately argue self-defense, failed to obtain a
     ballistics expert and suppress ballistics evidence and failed to properly
     cross-examine witnesses. (Petitioner, by counsel, argued additional

                                      8
              alleged deficiencies.)

       9.     The Court was not provided a copy of the police report from January
              2007 discussed at great length in the trial. The Court was not provided
              records of an independent medical examination of petitioner nor was
              the court given evidence of any kind outside the original discovery,
              other than through testimony of Professor Watson. The Court was not
              provided copies of taped statements taken by Counsel. The Court was
              not provided with any independent expert testimony on any singular
              issue related to physical evidence (i.e. no ballistics expert, no blood
              spatter expert, etc.).

       10.    Three witnesses testified on behalf of the defense during the Jury Trial,
              each bolstering Woods’ claim of self defense and/or his claims that he
              did not fire a weapon at Officer Vanek. The jury’s verdict indicates the
              testimony was rejected.

       11.    The evidence is for the State and against the Petitioner.

Appellant’s App. at 48-53 (footnotes and internal citations omitted).

                            Section 1.1 – Self-Defense Claim

       Woods maintains that Counsel was ineffective in presenting his claim of self-defense

with respect to the attempted murder of Raines. The postconviction court concluded that

Counsel performed deficiently for failing to adequately develop the defense but that Woods

was not prejudiced as a result. At the postconviction hearing, Counsel testified that he had

intended to develop self-defense by using evidence that Raines had brandished a weapon in

front of Woods in a previous incident. The problem stems from the source of this evidence, a

police report which was the subject of the State’s pretrial motion in limine to which Counsel

had agreed. The trial court had granted the motion in limine based on Indiana Evidence

Rules 609, 403, and 404(b). Nonetheless, Counsel addressed the incident in opening

statement, and when the trial court sustained an objection by the State, a bench conference

                                              9
was held outside the jury’s presence and Counsel was prohibited from further addressing the

contents of the report.

        At the postconviction hearing, Professor Watson testified that it was apparent that

Counsel “did not understand that he had agreed to limine out the facts relative to character

evidence, relative to his self-defense theory and it’s clear he didn’t understand what he’d

done or how it would impact … his opening statement.” PCR Tr. at 103. Whether owing to

ignorance or the confusion of the moment, from that point on, Counsel did not explicitly

develop the defense. During direct examination of Woods, Counsel elicited some testimony

indicating that Woods had acted in self-defense during his confrontation with Raines, but

neither the questions nor the responses were stated in those terms.3 Likewise, during his

summation, Counsel referenced Woods’s fear of Raines, stating that Woods “saw the look in

Jose Raines’s eyes when he whipped that gun out and aimed it at his head,” “was so sure that

Jose Raines was going to shoot him in the head,” and was “running out there and he’s

thinking he’s going to get shot any minute in the back.” Tr. at 1096. Counsel also sought

and was granted a detailed self-defense jury instruction that comprised two pages of the




        3
           The facts underlying Woods’s self-defense claim are unclear. The postconviction court concluded
that Woods’s self-defense theory was that he had seen Raines carrying a gun months earlier, that he feared that
Raines might retaliate against him for entering his house and demanding cash and property, and that he
therefore brought a gun when he entered Raines’s house. Appellant’s App. at 55. We agree that this was
likely Counsel’s strategy, but we also note Woods’s trial testimony that Raines also had a gun that night and
that Raines had been sitting on the gun on the couch when he was confronted by Woods. Tr. at 986. Woods
was unable to explain why Raines attempted to wrestle Woods’s gun away rather than simply using his own
gun. Id. at 986-87. At the postconviction hearing, Professor Watson testified that she did not think that
Counsel had a consistent theory regarding self-defense and that to the extent he had a theory, he had abandoned
it by the conclusion of the trial. PCR Tr. at 108, 111.


                                                      10
record. Appellant’s Dir. Appeal App. at 186-87.4

        We agree with the postconviction court that Counsel performed deficiently concerning

Woods’s self-defense claim, especially pertaining to his handling of the pretrial motion in

limine. Likewise, we agree that the basic facts underlying Woods’s self-defense claim (that

Raines had previously possessed a gun and/or had a gun on the couch with him when Woods

entered and confronted him) were placed before the jury—albeit inartfully—through

testimony, closing argument, and the jury instruction. The jury heard this evidence and could

evaluate it alongside the overwhelming physical and testimonial evidence of his guilt. We

therefore conclude that there is not a reasonable probability that the outcome of his trial

would have been different absent Counsel’s deficient performance. As such, Woods failed to

demonstrate prejudice under Strickland.

                Section 1.2 – Cross-Examination/Impeachment of Witnesses

        Woods also alleges as deficient Counsel’s cross-examination/impeachment of certain

State witnesses. “The nature and extent of cross-examination is a matter of trial strategy,

delegated to trial counsel.” Bivins v. State, 735 N.E.2d 1116, 1133 (Ind. 2000) (citation

omitted). “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

that, at the time and under the circumstances, seems best.” Perry v. State, 904 N.E.2d 302,


        4
          We note that Woods was fortunate that the trial court allowed the jury instruction to be given, since
Woods was not in a place where he had the right to be (having broken into Raines’s house) and he instigated
the violence by bringing a firearm and pointing it at Raines. See Bryant v. State, 984 N.E.2d 240, 250 (Ind. Ct.
App. 2013) (to prevail on self-defense claim, “defendant must present evidence that he … was in a place he
had a right to be … did not provoke, instigate, or participate willingly in the violence … and … had a
reasonable fear of death or great bodily harm”), trans. denied.

                                                      11
308 (Ind. Ct. App. 2009), trans. denied. “The method of impeaching witnesses is a tactical

decision and a matter of trial strategy that does not amount to ineffective assistance.”

Woodson v. State, 961 N.E.2d 1035, 1042 (Ind. Ct. App. 2012) (citation omitted), trans.

denied.

       Here, Woods cites Counsel’s cross-examination and efforts to impeach two police

officers with prior inconsistent statements, characterizing Counsel’s questions as “compound,

convoluted and confusing.” Appellant’s Br. at 19. At the postconviction hearing, Professor

Watson described Counsel’s cross examination as “just horrid,” stating that “he didn’t

understand how to ask a simple question,” asked “rambling” questions, did not know the

difference between impeaching and refreshing recollection, and “just doesn’t have th[e] skill

set [to impeach using a deposition].” PCR Tr. at 114-15, 119-20.

       Counsel failed to impeach Officer Vanek concerning minor discrepancies between his

pretrial and trial testimony about his vantage point when he first arrived outside Raines’s

home and reported hearing the noise of a gun being cocked. Counsel cross-examined Officer

Vanek regarding the exact number of shots fired by Woods at the second crime scene and

attempted to impeach him concerning the difference between “at least two” and “more than

two.” Tr. at 217, 220, 229. He also attempted to impeach Officer Vanek concerning his

exact position at the second crime scene relative to Officer Anderson and to Woods’s house.

Moreover, the inconsistency between the two officers’ testimony concerned whether Officer

Anderson returned fire “immediately” or “within a few seconds” after Woods fired. Id. at

216, 302-03.


                                             12
       While we agree with Professor Watson that Counsel’s questions were often inartful

and compound, we conclude that the inconsistencies did not implicate whether Woods shot at

the officers but rather the number of shots that he fired as well as Officer Anderson’s

response. Additionally, we note that during his summation, Counsel discussed the various

inconsistencies in the officers’ testimony. In short, Counsel’s failure to fully highlight the

cited testimonial inconsistencies was accompanied by overwhelming physical and testimonial

evidence of Woods’s guilt. Woods has failed to establish clear error by the postconviction

court in determining that he was not prejudiced by Counsel’s deficiencies in cross-

examining/impeaching the State’s witnesses.

                             Section 1.3 – Physical Evidence

       Woods also alleges that Counsel made several mistakes or omissions vis-à-vis

physical evidence. In this vein, he claims that Counsel failed to investigate the two crime

scenes, failed to object to the ballistics evidence, and failed to call experts to testify

concerning the ballistics and blood evidence.

                           Section 1.31 – Pretrial Investigation

       Woods submits that Counsel was ineffective in failing to investigate or photograph the

crime scenes and in failing to introduce evidence collected there. Indisputably, effective

representation requires adequate pretrial investigation and preparation; however, it is also

well settled that we may not use hindsight in judging counsel’s performance. Badelle v.

State, 754 N.E.2d 510, 538 (Ind. Ct. App. 2001), trans. denied. This means that we must

employ a great deal of deference to counsel’s judgments with respect to pretrial


                                             13
investigations. Boesch v. State, 778 N.E.2d 1276, 1283 (Ind. 2002). “[E]stablishing failure

to investigate as a ground for ineffective assistance of counsel requires going beyond the trial

record to show what investigation, if undertaken, would have produced.” Woods v. State,

701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied (1999).

        The trial court found that Counsel did not perform deficiently in this respect. We

agree. Although Woods cites evidence of bullet holes, a porch light, and a bloody kitchen

floor that purportedly should have been investigated, we note that he initially was represented

by a public defender and that Counsel was not hired until nineteen months later. Counsel

testified that when he was hired, he met with both predecessor deputy public defenders and

that they discussed the case “pretty extensively [and] covered all the bases.” PCR Tr. at 12.

He further reported that he conducted depositions, went out into the neighborhood, spoke

with lots of witnesses, conferred with Woods multiple times, examined the State’s evidence

(including medical records), conducted legal research, formulated theories of the case, and

prepared jury instructions. He explained that although he did not petition the trial court for

permission to conduct a formal investigation of the crime scenes, he visited Raines’s home

and looked around outside and looked around inside Woods’s home during several informal

visits. Moreover, in terms of a formal forensic investigation, the remoteness between the

offenses and any such investigation would impact the investigator’s ability to collect

probative physical evidence.5 Simply put, Woods has failed to establish what relevant



        5
           For example, blood on the kitchen floor would be difficult if not impossible to detect nineteen
months after the incident. Also, a bullet-pierced glass pane presumably would have been repaired and porch
light bulbs changed in the interim.

                                                   14
exculpatory evidence so late an investigation would have produced. As a result, he has failed

to establish that the court clearly erred in determining that Counsel did not perform

deficiently with respect to crime scene investigation.

                 Section 1.32 – Ballistics Report and Expert Witnesses

       Woods also claims that Counsel was ineffective based on his failure to object to the

ballistics report (or file a motion to suppress it) or to object to the State’s expert testimony

concerning ballistics. To prove ineffective assistance based on counsel’s failure to object, a

petitioner must prove that an objection would have been sustained if made and that he was

prejudiced by the failure. Kubsch v. State, 934 N.E.2d 1138, 1150 (Ind. 2010). See also

Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009) (petitioner failed to show reasonable

probability that he would have prevailed at trial had counsel filed motion to suppress,

meaning that trial court would have granted it and State’s other evidence would have been

otherwise insufficient to support conviction). “[A] decision regarding what witnesses to call

is a matter of trial strategy which an appellate court will not second-guess.” Curtis v. State,

905 N.E.2d 410, 415 (Ind. Ct. App. 2009) (citation omitted), trans. denied.

       With respect to the ballistics evidence, Professor Watson testified that Counsel should

have objected when the State’s ballistics expert characterized the shell casing as a “match”

with Woods’s weapon, opining that the term is an overstatement and that the preferred

phraseology is “consistent with.” PCR Tr. at 126-29, 132. Not only did Counsel not object

to the term “match” during trial, but he also used the term at the postconviction hearing,

testifying that “the .45 caliber cartridge shell that was found outside was problematic because


                                              15
it matched the caliber of the handgun that belonged to – was in the possession of Donald

Woods that night.” Id. at 30. With respect to his decision not to call an expert to refute the

report and testimony, Counsel stated,

       I did not see anything there that I thought would help the defense in terms of –
       if what you’re getting at is, you know, did I hire an independent ballistics
       expert to examine anything, I did not and that was based on the fact that I …
       didn’t see anything that leapt out at me as being important to inform me that I
       should do so.

Id.

       In reviewing Counsel’s postconviction hearing testimony concerning ballistics, we see

a lengthy line of questioning concerning alleged inconsistencies between the State’s experts,

apparently to show that Counsel should have objected or called his own witnesses.

However, as a whole, Counsel’s responses concerning the ballistics evidence indicate that his

approach was strategic, based on his not wanting to draw attention to the caliber match by

raising an objection. The record is devoid of evidence that the State’s ballistics evidence was

subject to fabrication or tampering. Instead, the evidence simply was unfavorable to

Woods’s case, showing with respect to the second crime scene (1) that a .45 caliber shell

casing was discovered in a place consistent with the officers’ testimony that Woods fired at

them; (2) police found a .45 caliber Glock stashed partially under a bed in Woods’s home;

and (3) that the officers were carrying .40 caliber firearms. Woods has failed to demonstrate

that any objection would have been sustained or that any additional expert would have

offered probative evidence to cast doubt on the ballistics evidence. Consequently, he has

failed to establish clear error by the postconviction court in its concluding that Counsel did


                                              16
not perform deficiently with respect to the ballistics evidence.

       Additionally, Woods complains that Counsel should have done more to call the jury’s

attention to his injuries, that is, Counsel should have taken photographs or called an expert to

testify concerning them. The fact that Woods was injured during his confrontation with

police was placed before the jury multiple times during the three-day trial. He has failed to

demonstrate that photographs or expert commentary on the physical appearance of those

injuries would be anything other than cumulative. As such, Counsel did not perform

deficiently in this respect. We find no clear error here.

       Woods makes a similar argument with respect to blood spatter evidence, claiming that

Counsel was ineffective in not calling an expert witness to testify. Again, Woods did not

offer any exhibits or testimony from ballistics or blood evidence experts during the

postconviction hearing in an effort to establish the exculpatory effect of such expert

testimony. We find no clear error by the postconviction court in concluding that Counsel did

not perform deficiently with respect to blood spatter evidence or any other physical evidence.

                              Section 1.4 – Cumulative Effect

       Finally, Woods maintains that the cumulative effect of Counsel’s alleged errors

amounts to ineffective assistance. Errors by counsel that are not individually sufficient to

establish ineffective representation may add up to ineffective assistance when viewed

cumulatively. Pennycuff v. State, 745 N.E.2d 804, 816-17 (Ind. 2001). Cf. Lloyd v. State,

669 N.E.2d 980, 985 (Ind. 1996) (court refused to find cumulative prejudice where defendant

was not prejudiced by any of the individually assigned errors). Here, the postconviction


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court concluded that Woods failed to prove deficient performance with respect to Counsel’s

investigation of crime scenes and treatment of ballistics and blood evidence. As such, the

only errors (deficiencies in performance) to be considered for cumulative effect are

Counsel’s failure to develop Woods’s self-defense claim and Counsel’s inartful impeachment

of State witnesses. As stated, the self-defense claim was placed before the jury, albeit

weakly, and the inconsistencies in the officers’ testimony did not call into doubt Woods’s act

of shooting at them. In the words of Woods’s own expert Professor Watson, the State’s case

against him was “strong.” PCR Tr. at 135. Based on the foregoing, we conclude that the

two instances of deficient performance, even considered cumulatively, do not amount to

prejudice. Thus, Woods has failed to establish clear error in the postconviction court’s denial

of his petition. Accordingly, we affirm.

       Affirmed.

BAKER, J., and BARNES, J., concur.




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