MEMORANDUM DECISION                                                            FILED
                                                                          Sep 27 2017, 10:29 am
Pursuant to Ind. Appellate Rule 65(D),                                         CLERK
this Memorandum Decision shall not be                                      Indiana Supreme Court
                                                                              Court of Appeals
regarded as precedent or cited before any                                       and Tax Court

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
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Jessica Ulm                                              Larry D. Allen
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, IN                                         Indianapolis, IN



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dabian D. Boyd,                                          September 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1702-PC-357
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         71D03-1403-PC-15



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017           Page 1 of 19
                                          Case Summary
[1]   Dabian Boyd appeals the denial of his petition for post-conviction relief on two

      counts of murder. We affirm.



                            Facts and Procedural History
[2]   On the night of May 5, 2012, a woman saw Kalyn Farmer staggering down a

      street in South Bend. Farmer asked her for help, telling her that he had been

      shot. Farmer had been shot three times in the back, “with one bullet entering

      his lower back to the right and lodging into his spine, another traversing

      through his upper right arm and through his right forearm, and the third

      entering in the lower right portion of the back, and travelling through the

      abdominal cavity, liver, and right lung.” Boyd v. State, No. 71A04-1304-CR-

      174, slip op. at 2 (Ind. Ct. App. Dec. 10, 2013). Farmer was taken to a hospital,

      where he later died from his injuries. The South Bend Police Department was

      notified of the shooting, but officers were unable to get a statement from

      Farmer before he died.


[3]   On the same night, Cheryl Holt, who is Boyd’s cousin, was sitting on the front

      porch of their grandmother’s house after attending a party that was hosted by

      their uncle. Boyd approached the house, asked Holt if she had seen all the

      police cars in the neighborhood, and stated that he had a warrant out for his

      arrest and needed to leave the area. Boyd then went inside the house. Holt had




      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 2 of 19
      not seen any police cars up to that point but saw multiple officers patrolling the

      neighborhood just after Boyd arrived at the house.


[4]   After being notified about Farmer’s shooting, the South Bend Police

      Department began searching for the scene of the shooting but were

      unsuccessful. The next morning, Officer Ken Ryan located a car parked oddly

      in an alley. He noticed that the driver’s side window was shattered and had a

      bullet hold through the safety glass. Inside the car, he found a second victim,

      Mercedes Newbill; Newbill and Boyd were also cousins. Newbill was dead

      with a gunshot wound to his head. Newbill and Farmer had been together the

      night of the shooting.


[5]   Crime-scene technicians were called to the scene to process the car.

              Crime scene technicians arrived at the scene and took pictures of
              Newbill and the car, and searched for fingerprints and DNA
              evidence. . . . The technicians noticed that the driver’s side
              window was shattered, and it was evident that the source of the
              shot was inside the car. The technicians were unable to find any
              shell casings at the scene, which led them to believe they might
              be looking for a revolver as the murder weapon. They were able
              to find a bullet lodged in the driver’s side door that was fired
              from the rear passenger seat, and had narrowly missed Newbill’s
              chest before going through the armrest of the door and getting
              stuck inside. Another shot passed through the front passenger
              seat belt. Based upon Farmer’s injuries, the technicians believed
              that one of the wounds to Farmer’s lower back could have
              occurred as a result of being shot while exiting the car. The
              wound to Farmer’s upper back likely did not occur inside the car,
              but after Farmer had already exited the car.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 3 of 19
                 Crime scene experts were successful in lifting twenty-two latent
                 prints from the exterior of the car on the side where the murders
                 took place. Out of those prints, some were matched to three
                 individuals. Newbill’s fingerprints were found around the
                 outside of the driver’s side door, and Rashondra Blake’s
                 fingerprints were found just under the window of the front
                 passenger side door. Rashondra Blake is [Michele] Brown’s
                 sister.[1] The third set of prints belonged to Boyd and those
                 fingerprints were found exclusively on the outside of the rear
                 passenger side door. Investigators determined that the shooter
                 was sitting in the rear passenger seat.


      Id. at 5-6 (emphasis added).


[6]   One month later, Boyd was arrested on an unrelated charge, and police

      questioned him about the murders. He told officers that on the night of the

      murders he was at his uncle’s party and when he left the party he went to his

      grandmother’s house where he ran into Holt. Boyd claimed that he had not

      seen Newbill in weeks. Boyd also denied ever seeing, let alone being near, the

      car where Newbill died, despite being shown fingerprint evidence placing him

      at the car.


[7]   Before Boyd was charged with the murders of Farmer and Newbill, Jermon

      Gavin approached detectives with information about Boyd.

                 Gavin described his relationship with Boyd as very close, “like
                 brothers.” [Trial] Tr. at 228. Gavin stated that while he and
                 Boyd shared the same pod, or section, of the jail, Boyd had made



      1
          Michele Brown was the owner of the car. She routinely let Newbill borrow it.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 4 of 19
        some statements about the murder of Newbill and Farmer.
        Gavin indicated that Boyd seemed very cocky about the murders
        and told him that other people did not understand what it was
        “like to wake up every day with a body” on their conscience. Id.
        at 231. Gavin further provided officers with details about Boyd’s
        police interrogation including the fact that they had served him
        Barnaby’s pizza during the interrogation, an uncommon
        occurrence known only by Boyd and the officers.


        Gavin also told the officers that Boyd believed Newbill had been
        shot in the head and the chest, and that five shots had been fired.
        Although police officers had released information that Newbill
        had been shot in the head, none of the other information, such as
        that a gunshot had appeared to have been fired in the direction of
        Newbill’s chest, was released to the public. Because Gavin was
        in jail at the time of the murders, he could not have been
        suspected of committing the murder.


        Boyd admitted to Gavin that he, Newbill, and Farmer planned to
        commit a robbery that evening at a house on Laurel Street and
        Jefferson Boulevard. Farmer had brought along his .38 special
        revolver, and gave it to Boyd before they went to case the house
        they intended to rob. They parked the car down the road on
        Laurel Street, but returned to the car after casing the house. On
        the way back to the car and out of Farmer’s earshot, Boyd and
        Newbill argued about whether Boyd could just take the gun from
        Farmer. Newbill told Boyd that if he were to “get into it” with
        Farmer, Boyd would have a problem with Newbill, too. [Id.] at
        232.


        When the three men returned to the car, Newbill was in the
        driver’s seat, Farmer was in the front passenger seat, and Boyd
        was in the rear passenger seat behind Farmer. An argument
        ensued after which Newbill grabbed the “do-rag” off of Boyd’s
        head. [Id.] at 233. Boyd shot Newbill in the head and fired
        another shot toward Newbill’s chest. Newbill died almost
Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 5 of 19
              immediately as a result of the gunshot wound to his head.
              Farmer got out of the car and attempted to escape. Boyd shot
              Farmer three times until the gun clicked. Farmer then fell to the
              ground, but did not immediately die from his injuries. Boyd then
              ran back to his house stating that the police were “everywhere.”
              [Id.] at 234. Boyd then told Gavin that he sold the gun to Javon
              Thomas (“Thomas”).


      Id. at 6-8. Boyd was charged with two counts of murder.


[8]   During Boyd’s jury trial, the State called Gavin to testify. Gavin’s testimony

      was similar to the statement he had given police before the trial. An officer

      confirmed that Boyd was given Barnaby’s pizza during his interview and that

      this was the only investigation where that had occurred. Thomas also testified

      that he bought a revolver from Boyd a few days after May 5. Thomas stated

      that after he was arrested he told his mother to get rid of the gun. The gun was

      later found in Robert James’s possession during a routine traffic stop.


[9]   During Gavin’s testimony, the State introduced a letter from the deputy

      prosecutor to Gavin’s attorney regarding the terms of Gavin’s plea deal in

      exchange for his truthful testimony against Boyd. The letter included the

      following statement: “Investigators and I have found Mr. Gavin’s statement to

      be accurate and trustworthy.” Ex. 40. Defense counsel objected to the

      admission of the letter, arguing that the statement was vouching, but the

      objection was overruled. Defense counsel did not request that the statement be

      redacted, and the full letter was published to the jury.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 6 of 19
[10]   Holt also testified on behalf of the State. She said that Boyd approached her

       grandmother’s house from the opposite direction of her uncle’s party—the

       direction where Newbill and Farmer were shot. Months earlier, police had

       questioned Holt about the night of the murders. At that time, Holt told officers

       that she did not remember what direction Boyd approached the house. Defense

       counsel did not question Holt about her prior inconsistent statement. Rather,

       counsel reemphasized her direct-examination testimony that she did not go

       inside at her uncle’s party (implying that she did not know if Boyd was at the

       party) and that she could not remember what time Boyd arrived at her

       grandmother’s house.


[11]   The jury found Boyd guilty of both murders. Boyd, represented by his trial

       attorney, filed a direct appeal challenging the sufficiency of the evidence against

       him. This Court found that there was sufficient evidence to support the

       convictions. See Boyd, No. 71A04-1304-CR-174. Boyd then filed a petition for

       post-conviction relief, arguing that his attorney was ineffective for failing to

       impeach Holt, for failing to request that the language vouching for Gavin’s

       truthfulness be redacted from the letter, and for failing to raise the vouching

       issue on direct appeal.


[12]   Boyd’s attorney testified at the fact-finding hearing that he remembered Holt

       being very unsure of her answers. “What I recall about her testimony is

       something that may not be reflected in the black and white transcript. What I

       recall about her testimony is that she was very hesitant about a lot of her

       answers. She went back and forth.” P-C Tr. p. 11. He went on to say, “A lot

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 7 of 19
       of times I get people who change their stories, can’t remember things. You

       know, I have to make a judgment call when I see the person actually testify in

       court as to whether or not they’re a believable witness[.]” Id. at 12.


[13]   Regarding the deputy prosecutor’s letter that vouched for Gavin, the attorney

       stated that he could not remember why he did not ask for the vouching

       statement to be redacted. The attorney admitted that he could have raised both

       the sufficiency and vouching claims on direct appeal, but he chose to raise only

       the sufficiency argument because he “didn’t think [vouching] was a very good

       issue.” Id. The post-conviction court denied Boyd’s petition.


[14]   Boyd now appeals.



                                  Discussion and Decision
[15]   Boyd contends that the post-conviction court erred when it denied his petition.

       Post-conviction proceedings are available to defendants who have exhausted

       the direct-appeal process and wish to challenge the correctness of their

       convictions and sentences. Saylor v. State, 55 N.E.3d 354, 359 (Ind. Ct. App.

       2016), trans. denied. Post-conviction procedures are not an opportunity for a

       “super appeal,” and not all issues are available to the petitioner. Timberlake v.

       State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied. Rather, subsequent

       collateral challenges to convictions must be based on grounds enumerated in

       the post-conviction rules. Ind. Post-Conviction Rule 1(1); Timberlake, 753

       N.E.2d at 597. In post-conviction proceedings, claims that “something went


       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 8 of 19
       awry at trial are cognizable only when they show deprivation of the right to

       effective counsel or issues demonstrably unavailable at the time of trial or direct

       appeal.” Timberlake, 753 N.E.2d at 597.


[16]   Post-conviction proceedings are civil in nature, and the petitioner has the

       burden of proving his claims by a preponderance of the evidence. Saylor, 55

       N.E.3d at 359. In this case, the post-conviction court entered findings of fact

       and conclusions in accordance with Indiana Post-Conviction Rule 1(6). The

       post-conviction court’s legal conclusions are reviewed de novo, but we accept

       the factual findings unless they are clearly erroneous. Id. “The petitioner must

       establish that the evidence as a whole leads unerringly and unmistakably to a

       decision opposite that reached by the post-conviction court.” Id.


[17]   Boyd contends that his attorney was ineffective in three respects: failing to

       impeach Holt during the jury trial, failing to request that the vouching language

       be redacted from the State’s letter to Gavin’s counsel, and failing to challenge

       the admission of the letter on direct appeal, despite preserving the issue for

       appeal.


[18]   To prevail on a claim of ineffective assistance of counsel, the petitioner must

       demonstrate both “that his counsel’s performance was deficient and that he was

       prejudiced thereby.” Trujillo v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011);

       see also Strickland v. Washington, 466 U.S. 668, 688 (1984). These two elements

       are separate and independent inquiries. Id. Thus, the failure to satisfy either




       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 9 of 19
       will cause the ineffective-assistance-of-counsel claim to fail. Taylor v. State, 840

       N.E.2d 324, 331 (Ind. 2006). We first turn to the deficient-performance prong.


                                    I. Deficient Performance
[19]   Counsel’s performance was deficient if “it fell below an objective standard of

       reasonableness based on prevailing professional norms.” Trujillo, 962 N.E.2d at

       114. “[J]udicial scrutiny of counsel’s performance must be highly deferential,

       and there is a strong presumption that counsel’s conduct falls within the wide

       range of reasonable professional assistance.” Laux v. State, 985 N.E.2d 739,

       745-46 (Ind. Ct. App. 2013). We give great deference to counsel’s performance

       and strategic decisions, and “[i]solated mistakes, poor strategy, inexperience,

       and instances of bad judgment do not necessarily render representation

       ineffective.” Id.


                                         A. Holt’s Testimony
[20]   Boyd argues that the post-conviction court erred when it denied his claim that

       his attorney was ineffective for failing to impeach Holt with her prior-

       inconsistent statement. One month after the murders, Holt was questioned by

       police and told officers that she did not remember the direction from which

       Boyd had approached her grandmother’s house on the night of May 5. At trial,

       when questioned by the State, Holt testified that Boyd approached the house

       from the opposite direction of her uncle’s party—in other words, Boyd

       approached the house from the direction where Farmer and Newbill were shot.

       On cross-examination, Boyd’s attorney did not confront Holt with the earlier

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 10 of 19
       statement she had given to police. Instead, the attorney reemphasized Holt’s

       direct-examination testimony that she had not gone inside at her uncle’s party,

       implying that she could not verify if Boyd was there. He also emphasized that

       Holt was unsure of what time specific events took place that night, including

       what time Boyd arrived at her grandmother’s house.


[21]   Appellate courts 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, 43 (Ind. 1998).


[22]   When questioned about the failure to impeach Holt with her prior statement,

       Boyd’s attorney could not remember his specific trial strategy on this point.

       However, he did state that Holt was not coming across as a credible witness

       because she was “very hesitant about a lot of her answers.” P-C Tr. p. 11. He

       also stated that during trial he makes “a judgment call” as to whether a witness

       is coming across to the jury as believable. Id. at 12. The post-conviction court

       concluded that the attorney’s performance was not deficient.


[23]   We disagree with the post-conviction court and find that the decision to let

       Holt’s answers stand as is because she was not coming across as credible was

       not a reasonable trial strategy in this case. Boyd’s attorney failed to state a

       strategic reason for the failure, the State has not suggested one, and we cannot

       think of one. Pointing out that Holt’s story had changed over time would have

       further established her lack of credibility. Accordingly, the performance of


       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 11 of 19
       Boyd’s attorney fell below an objective standard of reasonableness and was

       deficient in this respect.


                                          B. Vouching Statement
[24]   Boyd’s second argument is that the post-conviction court erred when it denied

       his claim for ineffective assistance of counsel when his attorney failed to request

       that the vouching statement be redacted from the letter. The challenged

       statement reads, “Investigators and I have found Mr. Gavin’s statement to be

       accurate and trustworthy.” 2 Ex. 40. Boyd contends that his attorney’s strategy

       was to keep the vouching statement out of evidence when he objected to the

       letter’s admission as an exhibit; however, the attorney “pursued this strategy

       ineffectively” by not requesting the statement be redacted after the trial court

       overruled the objection. Appellant’s Br. p. 23. At trial, a lawyer shall not “. . .

       state a personal opinion as to the justness of a cause, the credibility of a

       witness, the culpability of a civil litigant or the guilt or innocence of an

       accused[.]” Ind. Professional Conduct Rule 3.4(e) (emphasis added). “It is



       2
        Boyd notes that the post-conviction court omitted “the key vouching statement” in its conclusions.
       Appellant’s Br. p. 19. While Boyd is correct that the court did not quote the challenged language in its
       conclusion, the court did include it in finding of fact 61. See Appellant’s P-C App. p. 103. And the court
       concluded that the letter included a vouching statement. Accordingly, we conclude that the court was aware
       of the challenged language when it made its conclusions and that the omission in its conclusions did not
       impact its decision to deny Boyd’s petition.
       Furthermore, Boyd’s brief also asserts that the next sentence in the letter constitutes vouching: “Again, I
       expect Mr. Gavin’s testimony at trial will be very helpful to the State.” Appellant’s Reply Br. p. 5; Ex. 40.
       We fail to see how this was vouching. If anything, the statement was potentially more harmful to the State
       than to Boyd. The deputy prosecutor clearly stated that Gavin’s testimony “will be very helpful to the
       State,” not to the jury, not for the search for the truth, but for the State. This allowed the jury to question
       whether Gavin was merely saying what the State wanted to hear in exchange for a plea deal, or if Gavin was
       in fact telling the truth.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017          Page 12 of 19
       furthermore inappropriate for the prosecutor to make an argument which takes

       the form of personally vouching for a witness.” Lainhart v. State, 916 N.E.2d

       924, 938 (Ind. Ct. App. 2009) (citing Schlomer v. State, 580 N.E.2d 950, 957

       (Ind. 1991)).


[25]   In its order, the post-conviction court stated, “This Court doesn’t understand

       why this exhibit was offered or why the Court allowed it to be admitted into

       evidence because it is a vouching statement.” Appellant’s P-C App. p. 122.

       We agree with Boyd and the post-conviction court: this language is vouching.

       The deputy prosecutor gives his personal opinion about Gavin’s credibility,

       pointing out that earlier statements Gavin gave were “accurate and

       trustworthy.” However, the post-conviction court concluded that the attorney’s

       failure to request a redaction was not ineffective assistance of counsel, stating,

       “It seems to have been a tactical decision made during the course of the trial by

       [the attorney] and is entitled to deferential treatment.” Id. The court went on

       to conclude that at its worst, this decision was a bad strategy or tactic that did

       not amount to ineffective assistance.


[26]   We disagree with the court’s conclusion that this was a reasonable tactical

       decision. Boyd’s attorney recognized the vouching language contained in the

       letter because he objected to the letter’s admission. However, after being

       overruled, he failed to request that the vouching statement be redacted, and

       during the post-conviction hearing he was unable to articulate any strategic

       reason for this failure. Accordingly, we find that Boyd’s attorney’s performance

       on this issue was deficient.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 13 of 19
                                            C. Direct Appeal
[27]   Boyd’s final argument is that the post-conviction court should have found that

       his attorney was ineffective for failing to raise the vouching issue on direct

       appeal. He contends that the issue was “a significant and obvious appellate

       issue” that was stronger than the one issue that was raised: insufficient

       evidence. Appellant’s Br. pp. 13-14. These claims are reviewed using the same

       standard as ineffectiveness of trial counsel. Taylor, 717 N.E.2d at 94 (Ind.

       1999).


[28]   Claims of ineffective assistance of appellate counsel must fall into one of three

       categories: 1) denying access to an appeal; 2) waiver of issues; and 3) failing to

       present issues well. Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind. 1997).

       Boyd’s argument falls into the second category. When reviewing a waiver-of-

       issue claim, the petitioner must “show from the information available in the

       trial record or otherwise known to appellate counsel that appellate counsel

       failed to present a significant and obvious issue and that this failure cannot be

       explained by any reasonable strategy.” Timberlake, 753 N.E.2d at 606.

       “Ineffectiveness is rarely found when the issue is failure to raise a claim on

       direct appeal.” Taylor, 717 N.E.2d at 94. That is because “[t]he decision of

       what issues to raise is one of the most important strategic decisions to be made

       by appellate counsel.” Id. We will give considerable deference to appellate

       counsel’s strategic decisions and “will not find deficient performance in

       appellate counsel's choice of some issues over others when the choice was



       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 14 of 19
       reasonable in light of the facts of the case and the precedent available to counsel

       at the time the decision was made.” Id.


[29]   Boyd contends that the vouching claim had a reasonable probability of

       succeeding on appeal whereas his insufficient-evidence argument did not. The

       post-conviction court did not directly address whether the attorney’s

       performance was deficient; it did, however, conclude that the decision not to

       raise the admission of the letter on direct appeal was not ineffective assistance.

       We conclude that Boyd’s attorney’s performance was deficient. The attorney

       properly preserved the admission of the letter for appeal, and this was a

       significant and obvious issue to raise on appeal. When asked why he did not

       raise the issue on direct appeal, the attorney simply stated that he “didn’t think

       it was a very good issue.” P-C Tr. p. 14. While we give considerable deference

       to appellate counsel’s decision regarding which arguments to raise, this answer

       does not persuade us that the decision was strategic. Accordingly, we conclude

       that the attorney’s representation on direct appeal was deficient.


                                               II. Prejudice
[30]   The second prong of the Strickland test requires the petitioner to show that

       counsel’s deficient performance prejudiced him. To prove 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.” Trujillo, 962 N.E.2d at 114.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 15 of 19
[31]   While we agree with Boyd that his attorney was deficient on all of the issues

       raised, we disagree with his contention that his attorney’s actions prejudiced

       him. Looking at the totality of the evidence presented, we cannot say that there

       is a reasonable probability that the outcome of Boyd’s trial or direct appeal

       would have been different.


[32]   The jury was presented with physical evidence—Boyd’s fingerprints that were

       found on the outside of the rear passenger door of the car where Newbill’s body

       was found. Crime-scene investigators determined that the shooter was sitting in

       the rear passenger seat. Moreover, the jury heard Boyd tell officers that Newbill

       was shot in the head and chest. “Somebody else said [Newbill] tried to commit

       suicide, but I said, ‘How can you commit suicide if you get shot in the chest

       and the head?’” Ex. 35 at 43:22. Officers asked Boyd to clarify where Newbill

       had been shot, and Boyd again stated that Newbill was shot in the chest and the

       head. When asked how Boyd knew Newbill was shot in the chest, Boyd stated

       that a family member was told by an investigator where Newbill had been shot

       and that the family member had then told Boyd the information. The officers

       responded, “We don’t release where they’re shot.” Id. at 44:17. Officers never

       publicly released any information about the shot aimed at Newbill’s chest.


[33]   Regarding Gavin’s testimony, even without the letter, the jury was inclined to

       believe Gavin because of multiple instances that bolstered his credibility. Gavin

       testified that, while housed in the same area of the jail, Boyd confessed to him

       about the murders and provided details about the murders that only the shooter

       would have known—two shots were fired at Newbill, one at his head and one

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 16 of 19
       at his chest. Gavin also stated that Boyd used a .38 revolver that was later sold

       to Thomas. Thomas corroborated this statement, telling the court that a few

       days after May 5 he bought a revolver from Boyd.3 Other details that Gavin

       provided officers related to the conditions under which Boyd was interviewed—

       officers gave Boyd Barnaby’s pizza and soda. These details bolstered Gavin’s

       credibility because it was the first time that officers had ever given Barnaby’s

       pizza to someone in an interview room. See Trial Tr. p. 299. Given the

       physical evidence against Boyd, his admission to knowing about the shot fired

       at Newbill’s chest, and the additional evidence to support Gavin’s testimony,

       we conclude that Boyd was not prejudiced by his attorney’s deficient

       performance. Accordingly, Boyd did not receive ineffective assistance of

       counsel at trial or on direct appeal.


[34]   Affirmed.


       Bailey, J., concurs.


       Robb, J., concurs in result with opinion.




       3
         Officer Brandon Stec testified that he recovered the murder weapon from a man named Robert James
       during a routine traffic stop. In its findings of fact, the post-conviction court incorrectly states, “James told
       investigators that he purchased the gun from a person who he knew as ‘D-Block’, a person who was
       identified as Boyd.” Appellant’s P-C App. p. 119. This statement was actually made by Thomas during his
       testimony. See Trial Tr. p. 185. Thomas also testified that after he was incarcerated he instructed his mother
       to get rid of the gun. Id. at 188. While we agree with Boyd that the finding identifies the wrong person as the
       buyer of the gun, this error does not affect our prejudice analysis, and we are confident that it did not affect
       the post-conviction court’s conclusions.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017           Page 17 of 19
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Dabian D. Boyd,                                          Court of Appeals Case No.
                                                                71A03-1702-PC-357
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Robb, Judge, concurring in result.


[35]   I concur in result. I agree Boyd did not receive ineffective assistance of counsel.

       But I disagree with the majority’s conclusion that Boyd’s trial counsel rendered

       deficient performance with respect to the allegedly vouching statement in the

       prosecutor’s letter.


[36]   The prosecutor’s “vouching statement” was made in a letter to Gavin’s attorney

       extending a plea offer to Gavin in his own, unrelated criminal matter. The

       statement was made in explaining why the State was willing to extend to Gavin

       the deal it was offering. It was but one sentence in a two-page letter outlining

       the details of Gavin’s felony murder and armed robbery charges and the factors

       weighing in favor of a plea deal. In this context, I cannot say the statement

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-PC-357 | September 27, 2017   Page 18 of 19
       amounted to improper vouching. The statement was not made in the form of

       trial testimony or closing argument. Viewing the statement from the

       perspective of it being made in plea negotiations in an entirely unrelated

       criminal matter, I do not believe it carries the same force as a typical vouching

       statement made during trial. See Hamilton v. State, 43 N.E.3d 628, 634 (Ind. Ct.

       App. 2015) (holding a detective’s statement during the initial police interview

       with the defendant that child victim’s statements were “powerful” did not carry

       the “same vouching force as trial testimony to that effect” and were therefore

       not improper vouching statements), trans. denied.


[37]   I would hold Boyd’s counsel did not offer deficient performance in the first

       place with respect to the prosecutor’s statement in the letter. But because the

       majority ultimately determines Boyd has failed to prove ineffective assistance, I

       concur in the result.




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