MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Oct 15 2018, 5:38 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
Lyndon C. Davis                                          Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lyndon C. Davis,                                         October 15, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         45A03-1708-PC-1912
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Clarence D.
Appellee-Plaintiff.                                      Murray, Judge
                                                         The Honorable Kathleen A.
                                                         Sullivan, Magistrate
                                                         Trial Court Cause No.
                                                         45G02-1406-PC-4



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018         Page 1 of 15
[1]   Lyndon C. Davis appeals the denial of his petition for post-conviction relief.

      We affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Davis’s direct appeal follow:


              Davis was involved with Terrell Wells and Philip Blake in a
              drug-dealing operation. Wells was the leader, with Blake under
              him, followed by Davis. On the side, Blake also worked with
              Parrish Myles.

              Following a disagreement over the whereabouts of some drugs
              and/or drug money, Wells put a bounty on Myles. Davis met
              Wells at a park where they discussed the bounty. Davis, who
              resides in Chicago, then accompanied Wells and some other men
              to Griffith, Indiana where Myles lived. Wells took Davis to an
              apartment complex and showed him where Myles resided, all the
              while stressing that Myles needed to die.

              Davis’ uncle, Robert Davis (“Robert”), did not know Myles, but
              Davis informed him of the bounty. Davis then rode with Robert
              to show him where Myles lived. Once there, Davis pointed out
              Myles’ vehicle, and Robert parked nearby. Robert then retrieved
              a t-shirt and hat from the trunk of his car, and the two men sat in
              the car for several minutes. Myles emerged from his apartment
              with his two children and spoke to Davis and Robert before he
              began walking to his vehicle. At that point, Robert exited the car
              and shot Myles.

              Davis then moved to the driver’s seat, Robert jumped into the
              passenger seat, and they drove away. Once in the car, Robert
              changed his shirt and hat, presumably to change his appearance
              during the getaway. A police pursuit ensued, and Davis exited
              the car, taking Robert’s discarded shirt and hat with him. Davis
              called Wells for a ride and was apprehended when Wells came to
              pick him up.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018   Page 2 of 15
              Myles died from the gunshot wounds.


      Davis v. State, No. 45A04-1304-CR-207, slip op. at 2-3 (Ind. Ct. App. March 5,

      2014). The State charged Davis with murder. Id. at 3.


[3]   At trial, the State presented the testimony of multiple individuals including

      Aniya Lawson who testified that her father, Parrish Myles, was shot by a man

      that jumped back into a car, that the person that was in the passenger’s seat

      moved over to the driver’s seat, and that they left. She testified that she was not

      really able to see anything about the person in the car. On cross-examination,

      Lawson testified that the man who did the shooting was not Davis and that the

      other person who was in the car did not exit the car. Krystle Gavin testified

      that she was a witness at the scene. On cross-examination, when asked if the

      occupants of the car were already in the car by the time you looked over,”

      Gavin answered: “The one in the maroon shirt was getting in the car.” Trial

      Transcript Volume II at 99. When asked if she knew whether Davis was the

      person she saw with the maroon shirt, she answered: “No, I don’t.” Id. The

      court also admitted a recorded interview of Davis which was over two hours in

      length and a subsequent interview of Davis which was over an hour in length.


[4]   The trial court instructed the jury on accomplice liability. After the final

      instructions were given and the jury was removed from the courtroom to

      deliberate, the court stated: “Counsel, the jury has indicated that it is willing to

      continue with deliberations, but they are tired, as I’m sure we all are.” Trial

      Transcript Volume IV at 530. The court indicated that it was going to adjourn


      Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018   Page 3 of 15
      for the night and bring them back in the morning and asked counsel if they were

      “okay with that?” Id. The prosecutor indicated that the jury had “been out for

      roughly slightly over nine hours” and agreed. Id. at 531. The court stated: “I

      think given the circumstances with the weather and the fact that they’ve been at

      this for quite a while, that it would be prudent to have them take a fresh

      approach in the morning.” Id. Davis’s counsel stated: “Judge, I agree with

      you. May I just ask if they communicated anything specifically to the Court

      about wanting to go home or was there a note or just your decision?” Id. The

      court responded that the jury indicated they were not close to reaching a verdict

      and that they wanted to start again in the morning, and Davis’s counsel replied:

      “Sounds good.” Id. The jury returned to the courtroom, and the court

      indicated that it was going to adjourn for the evening and return the following

      morning. The court instructed the jury not to: discuss the case with anyone

      else; talk to attorneys, parties or witnesses; express any opinion to anyone else

      about the case; or listen to or read any outside or media accounts of the trial.

      The following day, the jury found Davis guilty.


[5]   On direct appeal, Davis argued the evidence was insufficient to prove that he

      aided, induced, or caused the commission of murder. Davis, slip op. at 3. This

      Court affirmed. Id. at 6.


[6]   On June 9, 2014, Davis filed a pro se petition for post-conviction relief. In July

      2014, a public defender filed an appearance, Davis indicated he elected to

      proceed pro se, and the public defender filed a motion to withdraw. On

      September 3, 2014, Davis, pro se, filed an amended petition.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018   Page 4 of 15
[7]   On December 12, 2014, the court held a hearing. Attorney Benjamen Murphy,

      Davis’s appellate counsel, and Attorney Kevin Milner, Davis’s trial counsel and

      appellate co-counsel, testified. On September 19, 2016, the court denied

      Davis’s petition. Discussion


[8]   Before addressing Davis’s allegations of error, we observe that Davis is

      proceeding pro se. Such litigants are held to the same standard as trained

      counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

      We also note the general standard under which we review a post-conviction

      court’s denial of a petition for post-conviction relief. 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);

      Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

      conviction relief, the petitioner stands in the position of one appealing from a

      negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse

      the judgment unless the evidence as a whole unerringly and unmistakably leads

      to a conclusion opposite that reached by the post-conviction court. 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.” Id. In this review, we accept findings of fact unless

      clearly erroneous, but we accord no deference to conclusions of law. Id. The

      post-conviction court is the sole judge of the weight of the evidence and the

      credibility of witnesses. Id.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018   Page 5 of 15
[9]    Davis argues that his trial counsel and appellate counsel were ineffective on

       multiple bases. Generally, to prevail on a claim of ineffective assistance of

       counsel a petitioner must demonstrate both that his counsel’s performance was

       deficient and that the petitioner was prejudiced by the deficient performance.

       French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington,

       466 U.S. 668, 104 S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is

       deficient if it falls below an objective standard of reasonableness based on

       prevailing professional norms. Id. To meet the appropriate test for prejudice,

       the petitioner must show that there is a reasonable probability that, but for

       counsel’s unprofessional errors, the result of the proceeding would have been

       different. Id. A reasonable probability is a probability sufficient to undermine

       confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).

       Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at

       824. Most ineffective assistance of counsel claims can be resolved by a

       prejudice inquiry alone. Id.


[10]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018   Page 6 of 15
       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to

       the failure to object, the defendant must show a reasonable probability that the

       objection would have been sustained if made. Passwater v. State, 989 N.E.2d

       766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001),

       cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)). We apply the same

       standard of review to claims of ineffective assistance of appellate counsel as we

       apply to claims of ineffective assistance of trial counsel. Williams v. State, 724

       N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied, 531 U.S. 1128, 121 S.

       Ct. 886 (2001).


       A. Probable Cause Affidavit


[11]   Davis appears to argue that his trial counsel “could have used the deposition of

       Krystle Gavin to show evidence that the probable cause affidavit contained

       some false information that was very critical to the finding of probable cause.”

       Appellant’s Brief at 21. He asserts that the “probable cause affidavit/search

       warrant must be voided, and the fruits of the probable cause affidavit/search

       warrant excluded to the same extent as if probable cause was lacking on the

       face of the affidavit.” Id. at 28.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018   Page 7 of 15
[12]   Davis does not point out any specific inconsistencies between the probable

       cause affidavit and Gavin’s statements.1 He does not assert that the probable

       cause affidavit was admitted at trial or develop a cogent argument regarding

       how he was prejudiced. We cannot say that reversal is warranted on this basis.


       B. Pre-Trial Investigation and Examination of Witnesses


[13]   Davis argues that his trial counsel failed to investigate his case and depose or

       interview any of the State’s witnesses before trial. He asserts that Lawson and

       Gavin were the State’s key witnesses and that the depositions that his trial

       counsel received from the State contain “a very much inconsistent story to what

       each witness had testified at the trial.” Appellant’s Brief at 30. He argues that

       his trial counsel failed to attack Lawson and Gavin’s inconsistent statements at

       trial.


[14]   It is undisputed that effective representation requires adequate pretrial

       investigation and preparation. Badelle v. State, 754 N.E.2d 510, 538 (Ind. Ct.

       App. 2001), trans. denied. However, it is well-settled that we should resist

       judging an attorney’s performance with the benefit of hindsight. Id. “When

       deciding a claim of ineffective assistance of counsel for failure to investigate, we




       1
         Davis cites to “deposition of Krystle Gavin, P.C. App. p. 66” to support his assertion that “Krystle Gavin
       stated that she had never talked to the detectives and that the statement wasn’t true that they say she had
       made.” The page that Davis appears to cite comes from his proposed findings of facts and conclusions of
       law. See Appellant’s Appendix Volume II at 66.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018           Page 8 of 15
       apply a great deal of deference to counsel’s judgments.” Boesch v. State, 778

       N.E.2d 1276, 1283 (Ind. 2002), reh’g denied.


[15]   When asked by Davis about the tactics he uses to build a defense before a trial,

       Davis’s trial counsel testified that he gathers all the discovery, performs his own

       independent investigation, and deposes witnesses that are going to testify for the

       State. He also stated: “I will certainly discuss the evidence with you to get your

       input.” Post-Conviction Transcript Volume 2 at 50. When asked if he

       interviewed or deposed any witnesses prior to the case, Davis’s trial counsel

       answered: “I’m certain I did. I have no recollection, but I’d be shocked if I

       didn’t depose all the substantive witnesses. I honestly don’t remember.” Id.


[16]   With respect to the testimony of Gavin and Lawson, we observe that Davis’s

       trial counsel stated:


               My recollection is both she and the other witness, as you said a
               few minutes ago, testified to what they said they saw, and they
               both said they didn’t see you commit any crime. Why would I
               want to discredit either one of those witnesses? Those are your
               best witnesses? They came out there, said they saw what
               happened, and that you didn’t do anything wrong that they saw.
               I don’t want to discredit them. To the contrary, I want the jury
               to think that they’re the most truthful people in the trial.


       Id. at 62.


[17]   He also stated his decisions during trial were based on trial strategy and:


               Those women, as I’ve said to you a couple of times, I’m certain I
               could have impeached them if one of them said this happened at

       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018   Page 9 of 15
                3:00 o’clock, when, in fact, on another time she said it was 3:30.
                Or if she said you were wearing blue pants, when, in fact, they
                were black. Those are not substantial inconsistencies. And even
                if they were, again, I am not going to attack the only witnesses
                who help you.


       Id. at 71-72. Under the circumstances, we cannot say that reversal is

       warranted.2


       C. Davis’s Statement to Police


[18]   Davis argues that his trial counsel failed to suppress his voluntary statement to

       detectives under Evidence Rules 403 and 404.3 He acknowledges that his




       2
         To the extent Davis asks this Court to “weigh the witness’s credibility under the incredible dubiosity rule,”
       Appellant’s Brief at 35, we conclude that his claim amounts to a freestanding claim of error, which is not
       available in post-conviction proceedings. See Martin v. State, 760 N.E.2d 597, 599 (Ind. 2002) (“Freestanding
       claims that the original trial court committed error are available only on direct appeal.”); Lambert v. State, 743
       N.E.2d 719, 726 (Ind. 2001) (holding that post-conviction procedures do not provide a petitioner with a
       “super-appeal” or opportunity to consider freestanding claims that the original trial court committed error
       and that such claims are available only on direct appeal), reh’g denied, cert. denied, 534 U.S. 1136, 122 S. Ct.
       1082 (2002).
       3
         At the time of trial, Ind. Evidence Rule 403 provided: “Although relevant, evidence may be excluded if its
       probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
       misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence.”
       (Subsequently amended eff. January 1, 2014). Ind. Evidence Rule 404 provided in part:
           (a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not
               admissible for the purpose of proving action in conformity therewith on a particular occasion,
               except:
                (1) Character of the accused. Evidence of a pertinent trait of character offered by an accused, or by
                    the prosecution to rebut the same;
                                                            *****
           (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to
               prove the character of a person in order to show action in conformity therewith. It may, however,
               be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge,
               identity, or absence of mistake or accident, provided that upon request by the accused, the
               prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if

       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018             Page 10 of 15
       statements that he did not plan to commit a crime with Robert, that he was not

       near the shooting to see what happened, and that he had no knowledge of the

       shooting before he left the scene of the crime were “not at all incriminating

       toward himself or Robert.” Appellant’s Brief at 36. He asserts that his

       statement cast a shadow over his character because it referenced his criminal

       lifestyle of selling drugs and associating with drug dealers and Robert’s history

       of being incarcerated for a prior murder.


[19]   Davis does not point to any specific portion of his recorded statements to

       support his assertion that his recorded statement cast a shadow over his

       character nor does he point to the record to show that he asked his trial counsel

       why he did not object to or move to suppress his statement. We cannot say that

       Davis has demonstrated ineffective assistance.


       D. Jury Instruction


[20]   Davis argues that his trial counsel failed to object to the State’s tendered jury

       instructions on accomplice liability and cites Kane v. State, 976 N.E.2d 1228

       (Ind. 2012).


[21]   We initially note that Davis’s trial counsel testified:




               the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it
               intends to introduce at trial.
       (Subsequently amended eff. January 1, 2014).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018         Page 11 of 15
               I felt the instructions, as a whole, meaning the entire packet of
               instructions that Judge Murray would be reading to the jury, I
               felt was an accurate statement of the law. I can’t remember
               which particular instruction say which particular things, but I do
               believe my recollection was thinking that it was a fair statement
               of the law, the entire group of instructions.


       Post-Conviction Transcript Volume 2 at 98. He stated that he did not think

       there was an error in the accessory liability instruction.


[22]   In Kane, the Indiana Supreme Court held that the trial court erred by giving an

       instruction on accomplice liability which did not include a mental state at all

       and seemed to impose strict liability on the defendant for the unlawful acts of

       another. 976 N.E.2d at 1232. Here, the instruction specifically stated in part:

       “To aid under the law is to knowingly aid, support, help or assist in the

       commission of a crime.” Trial Transcript Volume IV at 512 (emphasis added).

       Thus, Kane is distinguishable. To the extent Davis questions how he could

       have participated in the act of murder and suggests the evidence was

       insufficient, we note that this raises a freestanding claim, which is not available

       in post-conviction proceedings. See Martin, 760 N.E.2d at 599. Reversal is not

       warranted on this basis.


       E. Jury Separation


[23]   Davis argues that his trial counsel failed to object to the separation of the jury

       for a lengthy period of time during the process of the deliberation.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018   Page 12 of 15
[24]   Generally, “[t]he Indiana Code requires the jury to be kept together once

       deliberations begin.” Bradford v. State, 675 N.E.2d 296, 304-305 (Ind. 1996)

       (citing Ind. Code § 35-37-2-6(a)(1)), reh’g denied. Ind. Jury Rule 29 provides that

       the “court shall not permit the jury to separate during deliberation in criminal

       cases unless all parties consent to the separation” and certain instructions are

       given.


[25]   At the post-conviction hearing, trial counsel testified that he was “very

       comfortable with letting the jury go home, get some rest, and come back and

       hopefully rule my way.” Post-Conviction Transcript Volume 2 at 73. He

       indicated that the trial court allowed the jury to separate because the jurors were

       tired. He explained:


                I believe the word tired is a good basis to allow these people to go
                home. I don’t remember, but often juries have elderly people,
                you often have people with health issues, you often have people
                with small children at home. I’m not going to punish this jury
                any more than they’re being punished by having to take time out
                of their lives to deliberate, unless I think it’s going hurt [sic] you.
                If I think it’s going to hurt you even one percent, I will make
                such an argument to the Court.

                I saw nothing in this trial to concern me whatsoever about the
                jury’s behavior. I didn’t, for one minute, believe that if they were
                allowed to go home, that it would somehow compromise the
                verdict. The Judge instructed them, I’m certain, each day to
                ignore newspaper reports, and not discuss the case with anybody,
                et cetera, et cetera. So in the absence of any reason to think that
                this jury was going to be messed with, correct, I would not have
                complained about them going home. And I’m certain I didn’t.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018   Page 13 of 15
       Post-Conviction Transcript Volume 2 at 73-74. Trial counsel also testified that

       all of his decisions were based on trial strategy. We cannot say that reversal is

       warranted on this basis.


       F. Appellate Counsel


[26]   Davis appears to argue that his appellate counsel was ineffective for failing to

       raise the issues that he raised in his petition including that his trial counsel was

       ineffective. The Indiana Supreme Court has held that appellate counsel’s

       failure to raise a claim of ineffective assistance of trial counsel is not deficient

       representation because the claim may be presented in post-conviction

       proceedings and appellate counsel is not required to raise this claim on direct

       appeal. Conner v. State, 711 N.E.2d 1238, 1252 (Ind. 1999), reh’g denied, cert.

       denied, 531 U.S. 829, 121 S. Ct. 81 (2000). We also note that Davis’s trial

       counsel served as co-counsel for his direct appeal and arguing one’s own

       ineffectiveness is not permissible under the Rules of Professional Conduct. See

       Caruthers v. State, 926 N.E.2d 1016, 1023 (Ind. 2010). Further, in light of the

       discussion above, we cannot say that Davis has demonstrated that his appellate

       counsel was deficient or that he was prejudiced.


                                                   Conclusion

[27]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       Davis’s petition for post-conviction relief.


[28]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018   Page 14 of 15
Bailey, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018   Page 15 of 15
