MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          FILED
court except for the purpose of establishing                         Sep 05 2017, 5:25 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ross G. Thomas                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Leon Benson,                                             September 5, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A04-1604-PC-897
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc Rothenberg,
Appellee-Respondent.                                     Judge
                                                         The Honorable Amy J. Barbar,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G02-9808-PC-134837



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017       Page 1 of 21
                                          Case Summary
[1]   In August of 1998, Appellee-Respondent the State of Indiana (“the State”)

      charged Appellant-Petitioner Leon Benson with murder and Class A

      misdemeanor carrying a handgun without a license. In July of 1999, a jury

      found Benson guilty as charged. He was subsequently sentenced to an

      aggregate term of sixty years. On February 15, 2002, the Indiana Supreme

      Court affirmed Benson’s convictions and sentence.


[2]   Benson subsequently petitioned for post-conviction relief (“PCR”), arguing that

      he suffered ineffective assistance of trial counsel and that he should receive a

      new trial in light of certain newly-discovered evidence. Following a hearing on

      Benson’s petition, the post-conviction court determined that Benson had failed

      to establish that he suffered ineffective assistance of trial counsel or that the

      allegedly newly-discovered evidence necessitated a new trial. Benson

      challenges the post-conviction court’s determinations on appeal. We affirm.



                            Facts and Procedural History
[3]   Kasey Schoen was shot and killed while sitting behind the wheel of his pickup

      truck during the early morning hours of August 8, 1998.


              The State’s key witness, a morning newspaper delivery person,
              testified that, as she was working her route between 2:30 and
              4:00 a.m., she stopped her vehicle to place newspapers in a
              sidewalk vending box. Ahead of her and illuminated by her
              headlights she saw a black Dodge Ram truck parked with its
              driver talking to a man standing on the sidewalk. As she walked

      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 2 of 21
              around the front of her vehicle, she heard two or three gunshots
              from the direction of the truck and looked in its direction,
              observing the man who had been standing on the sidewalk now
              walking in her direction. She then observed the man turn and
              walk back to the truck and fire two more shots into it. She could
              see the flash coming off the end of the gun in the man’s hand.
              She got into her vehicle, tried to call 911 on her cell telephone,
              and drove ahead, passing the parked truck and seeing a man
              slumped over in the seat. As she drove by, the man who fired the
              shots was walking on the sidewalk and looked at the witness,
              making eye contact with her, after which he ran into a parking
              lot.


      Benson v. State, 762 N.E.2d 748, 750-51 (Ind. 2002). The State’s key witness,

      Christy Schmitt, identified Benson as the shooter from a photo array.


[4]   On August 20, 1998, the State charged Benson with murder and Class A

      misdemeanor carrying a handgun without a license. Benson’s first jury trial

      resulted in a mistrial as the jury was unable to reach a verdict. His case again

      proceeded to trial on July 6 through 8, 1999. During trial, Schmitt again

      identified Benson “as the man who had fired the shots.” Id. at 751. Another

      witness, Donald Brooks, also identified Benson as the shooter.1 At the

      conclusion of trial, the jury found Benson guilty as charged. He was

      subsequently sentenced to an aggregate sixty-year term of imprisonment.




      1
        Brooks testified that he observed Benson approach the truck from a nearby apartment window. Brooks had
      turned away from the window when he heard four or five gun shots. After hearing the gunshots, he turned
      back towards the window. When he looked back out the window, he saw Benson walking away from the
      truck.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017     Page 3 of 21
      Benson’s convictions and sentence were affirmed on direct appeal by the

      Indiana Supreme Court. Id. at 756.


[5]   Benson first filed a PCR petition on January 24, 2003. He subsequently

      withdrew this petition, without prejudice. On November 22, 2013, Benson

      again filed a PCR petition. He filed an amended PCR petition on February 14,

      2014.


[6]   The post-conviction court conducted a two-day evidentiary hearing on Benson’s

      petition on November 19, 2014, and July 31, 2015. The post-conviction court

      took the matter under advisement and, on March 28, 2016, issued an order

      denying Benson’s petition. In reaching its decision, the post-conviction court

      stated the following:

              Defense counsel presented a vigorous and substantial defense to
              the jury. The State’s evidence was rigorously challenged and
              subjected to close scrutiny. The fact that Petitioner was
              ultimately convicted does not equate to ineffective assistance of
              counsel or an unfair trial.


      Appellant’s App. Vol. III, pp. 61-62. This appeal follows.



                                 Discussion and Decision
[7]   Post-conviction procedures do not afford the petitioner with a super-appeal.

      Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

      narrow remedy for subsequent collateral challenges to convictions, challenges

      which must be based on grounds enumerated in the post-conviction rules. Id.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 4 of 21
      A petitioner who has been denied post-conviction relief appeals from a negative

      judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

      v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

      (Ind. Ct. App. 1999), trans. denied.


[8]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

      Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

      a petitioner must convince this court that the evidence, taken as a whole, “leads

      unmistakably to a conclusion opposite that reached by the post-conviction

      court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

      conflict and leads to but one conclusion, and the post-conviction court has

      reached the opposite conclusion, that its decision will be disturbed as contrary

      to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

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

      credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

      We therefore accept the post-conviction court’s findings of fact unless they are

      clearly erroneous but give no deference to its conclusions of law. Id.


                         I. Ineffective Assistance of Counsel
[9]   The right to effective counsel is rooted in the Sixth Amendment to the United

      States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

      Sixth Amendment recognizes the right to the assistance of counsel because it


      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 5 of 21
       envisions counsel’s playing a role that is critical to the ability of the adversarial

       system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

       668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

       must be whether counsel’s conduct so undermined the proper function of the

       adversarial process that the trial court cannot be relied on as having produced a

       just result.” Strickland, 466 U.S. at 686.


[10]   A successful claim for ineffective assistance of counsel must satisfy two

       components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

       prong, the petitioner must establish that counsel’s performance was deficient by

       demonstrating that counsel’s representation “fell below an objective standard of

       reasonableness, committing errors so serious that the defendant did not have

       the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that

       even the finest, most experienced criminal defense attorneys may not agree on

       the ideal strategy or most effective way to represent a client, and therefore,

       under this prong, we will assume that counsel performed adequately and defer

       to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

       (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

       bad judgment do not necessarily render representation ineffective. Id.


[11]   Under the second prong, the petitioner must show that the deficient

       performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

       may show prejudice by demonstrating that there is “a reasonable probability

       (i.e. a probability sufficient to undermine confidence in the outcome) that, but

       for counsel’s errors, the result of the proceeding would have been different.” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 6 of 21
       A petitioner’s failure to satisfy either prong will cause the ineffective assistance

       of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

       “[a]lthough the two parts of the Strickland test are separate inquires, a claim

       may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

       (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


[12]   In arguing that he suffered ineffective assistance of counsel, Benson complains

       that his trial counsel, Timothy Miller (“Attorney Miller”), provided ineffective

       assistance in a number of ways. Specifically, Benson asserts that Attorney

       Miller provided ineffective assistance by failing to: (A) to call Dakarai Fulton

       as a witness at trial, (B) cross-examine the investigating officer about Fulton’s

       proffered testimony, (C) object to the admission of Donald Brooks’s out of

       court statement, or (D) object to numerous allegedly improper statements made

       by the deputy prosecutor during both the evidentiary portion of the trial and the

       State’s closing argument. We will discuss each in turn.


                 A. Failure to Call a Potential Eyewitness at Trial
[13]   Benson argues that Attorney Miller provided ineffective assistance by failing to

       call Fulton as a witness at trial. “The decision whether to call a particular

       witness to testify on behalf of the defendant is a matter within trial counsel’s

       strategy.” Grigsby v. State, 503 N.E.2d 394, 397 (Ind. 1987) (citing Marsillett v.

       State, 495 N.E.2d 699, 706 (Ind. 1986)). “Absent a clear showing of prejudice,

       this Court will not declare counsel ineffective for failure to call a particular

       witness.” Id. (citing Marsillett, 495 N.E.2d at 706).


       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 7 of 21
[14]   Benson argues that Attorney Miller provided ineffective assistance at trial by

       failing to call Fulton, a potential eyewitness to the shooting, as a witness at

       trial. Specifically, Benson asserts that Fulton’s testimony was so vital that

       Attorney Miller’s decision not to call him as a witness cannot be termed

       “strategic.” Appellant’s Br. 19. For its part, the State asserts that given

       Schmitt’s and Brooks’s consistent identifications of Benson as the shooter

       coupled with the seeming large credibility issues surrounding Fulton, Benson

       cannot establish that he was prejudiced by Attorney Miller’s decision not to call

       Fulton as a witness at trial.


[15]   During the evidentiary hearing, Fulton testified that between 3:00 and 4:00 a.m.

       on the date in question, he was “on [his] way” to a Shell gas station located

       near the corner of 16th and Illinois Streets. PCR Tr. p. 76. While en route to

       the gas station, he observed a black Dodge Ram truck pulled to the side of the

       road. The truck had its lights on and appeared to be running. Fulton observed

       an individual who was “leaned over into the pickup [truck] window.” PCR Tr.

       p. 78. This individual was wearing dark clothing. (PCR Tr. 79) Fulton saw

       the individual “that was leaned over raised like -- you know, erected himself,

       stood up, and it was like seven or eight bangs. He unloaded a weapon.” PCR

       Tr. pp. 80-81.


[16]   Fulton admitted that he could not see the weapon used in the shooting.

       However, despite acknowledging that he did not see the weapon used in the




       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 8 of 21
       shooting, he claimed that he had seen an individual by the last name Webster 2

       with “the weapon earlier that day.” PCR Tr. p. 81. Fulton indicated that he

       did not stop to help the individual in the truck because it was “not within [his]

       nature.” PCR Tr. p. 85. Fulton indicated that given his location, he could not

       have been seen by the shooter. Fulton did not notify police immediately after

       the shooting but instead waited until he was incarcerated on unrelated dealing

       in narcotics charges to come forward with his account. Fulton claimed that he

       decided to come forward after he saw Benson, whom he was familiar but not

       friends with, in the Marion County Jail. Fulton further acknowledged that

       Webster was another drug dealer, saying “[w]e don’t deal with each other.

       We’re not -- we’re not in it together.” PCR Tr. p. 93.


[17]   The post-conviction court noted that “it is clear [from the record] that all parties

       were aware of [Fulton] and his testimony.” Appellant’s App. Vol. III, p. 57.

       The post-conviction court further noted that “Fulton is a man who left the scene

       knowing someone had been hurt because, as he said at the evidentiary hearing,

       it is not in his nature to help.” Appellant’s App. Vol. III, p. 57. The post-

       conviction court indicated that while it could not, from the record presented,

       determine the reasons for not calling Fulton as a witness, it could determine

       whether the record showed that “the lack of his testimony prejudiced the

       defense to an extent that the outcome would have been different had he

       testified.” Appellant’s App. Vol. III, p. 57. The post-conviction court



       2
           Webster’s first name is Joseph.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 9 of 21
       ultimately determined that Benson had failed to make such a showing. We

       agree.


[18]   Fulton was a drug dealer who decided not to render aid to the victim or notify

       the police of the shooting. Instead, he waited until incarcerated on an unrelated

       charge before implicating a rival drug dealer. Although Fulton acknowledged

       that he did not actually see the gun used in the shooting, he nonetheless testified

       that he had seen Webster with the gun earlier that day. We are perplexed how

       Fulton could be sure he had seen Webster with the gun in question when he

       admittedly did not see the gun himself.


[19]   Additionally, Fulton’s identification of Webster as the shooter was discredited

       by Schmitt’s assertion that Webster was not the shooter. During the course of

       the investigation, Schmitt was shown two separate photo arrays of potential

       perpetrators. The first photo array presented to Schmitt contained a picture of

       Webster and not Benson. After looking at this photo array, Schmitt told

       investigating officers that she did not recognize anyone whose picture was

       included in the first array. Upon looking at the second photo array, which

       included a picture of Benson and not Webster, Schmitt was able to quickly

       identify Benson, indicating that his picture “just kind of jumped out at me.” Tr.

       p. 162. Further, Schmitt was not the only person to identify Benson as the

       shooter as both she and Brooks did so.


[20]   The decision whether to call Fulton to testify on behalf of Benson was a

       strategic decision. See Grigsby, 503 N.E.2d at 397. Given the obvious


       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 10 of 21
       credibility issues stemming from Fulton’s proffered testimony, we must agree

       with the post-conviction court’s determination that Benson has failed to make a

       clear showing of deficient performance in this regard. Accordingly, we must

       conclude that he has failed to establish that Attorney Miller provided ineffective

       assistance in this regard. See id.


             B. Failure to Question the Investigating Officer about
                         Fulton’s Proffered Testimony
[21]   In a related claim, Benson also asserts that Attorney Miller was ineffective for

       allowing the investigating officer to refer to Webster “as simply being the name

       of a ‘guy that hangs around,’ [and] not as someone that had also been accused

       of the crime, and to imply that only Mrs. Schmitt had been shown the Webster

       photo array.” Appellant’s Br. p. 20. Benson specifically claims that such

       testimony was “intentionally misleading” yet easily rebuttable. Appellant’s Br.

       p. 20.


[22]   Given the record before us, we conclude that Benson has failed to establish that

       Attorney Miller provided ineffective assistance by allowing the investigating

       officer to refer to Webster as someone that “hangs around” instead of

       questioning the officer about Fulton’s accusation that Webster committed the

       shooting. Appellant’s Br. p. 20. Again, review of the record reveals that there

       were significant credibility concerns surrounding Fulton. As such, as we

       concluded above, one can reasonably conclude that Attorney Miller made the

       strategic decision not to highlight Fulton’s proffered testimony given the above-

       described credibility concerns.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 11 of 21
[23]   We are also unpersuaded that the alleged implication that Schmitt was the only

       person to view the photo array containing the picture of Webster had any effect

       on the outcome of Benson’s trial. Schmitt testified that she was shown two

       separate photo arrays of potential perpetrators. The first photo array presented

       to Schmitt contained a picture of Webster and not Benson. After looking at this

       photo array, Schmitt told investigating officers that she did not recognize

       anyone whose picture was included in the first array. Upon looking at the

       second photo array, which included a picture of Benson and not Webster,

       Schmitt was able to quickly identify Benson, indicating that his picture “just

       kind of jumped out at me.” Tr. p. 162. Benson does not explain how the

       alleged implication that Schmitt was the only potential witness to view these

       photo arrays had any impact on Schmitt’s identification of Benson. This is

       especially true give that fact that contrary to Benson’s assertion, Schmitt was

       not the sole witness who identified Benson as the shooter. As is discussed

       above, both Schmitt and Brooks identified Benson as the shooter.


[24]   Benson has failed to establish that Attorney Miller’s performance was deficient

       in deciding not to question the investigating officer about Fulton’s proffered

       testimony or elicit testimony from the investigating officer that someone other

       than Schmitt was shown the photo array containing Webster’s photo. Benson,

       therefore, has failed to prove that Attorney Miller provided ineffective

       assistance in this regard.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 12 of 21
                                   C. Brooks’s Prior Statement
[25]   Benson next asserts that Attorney Miller provided ineffective assistance by

       failing to object when the trial court allowed the State to read Brooks’s prior

       statement to the investigating officer into the record. For its part, the State

       asserts that Attorney Miller cannot be found to have provided ineffective

       assistance in this regard because Benson suffered no prejudice.


[26]   “The Rules of Evidence provide for a three-tiered approach: (1) the unaided

       testimony of a witness is preferred; (2) if the unaided testimony is not available,

       the law prefers refreshed recollection; and (3) if the witness’s recollection cannot

       be revived, the recorded recollection exception to the hearsay rule may be

       available to admit the document which contains the witness’s prior knowledge

       of the facts in question.” Smith v. State, 719 N.E.2d 1289, 1290-91 (Ind. Ct.

       App. 1999) (internal quotation omitted). The recorded recollection exception,

       set forth in Evidence Rule 803(5), provides as follows:


               Recorded Recollection. A record that:
                      (A) is on a matter the witness once knew about but
                      now cannot recall well enough to testify fully and
                      accurately;
                      (B) was made or adopted by the witness when the
                      matter was fresh in the witness’s memory; and
                      (C) accurately reflects the witness's knowledge.
               If admitted, the record may be read into evidence but may be
               received as an exhibit only if offered by an adverse party.


       (bold in original).



       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 13 of 21
[27]   As in the first trial, the trial court allowed the State to read Brooks’s statement

       into the record after the State used the statement to refresh his memory during

       his testimony. Benson concedes in the instant appeal that the State properly

       used the statement to refresh Brooks’s memory, but claims that he was

       prejudiced by the presentation of the entire statement to the jury. We disagree.


[28]   It is undisputed that during Benson’s first trial, Attorney Miller vigorously

       objected to admission of Brooks’s statement to the investigating officer. The

       trial court overruled these objections and admitted the statement. As the post-

       conviction court found, it was not unreasonable for Attorney Miller “to assume

       then that from [his] perspective an objection in the second trial would not be

       sustained.” Appellant’s App. Vol. III, p. 60.


[29]   Further, review of the record reveals that the challenged statement was

       consistent with Brooks’s testimony, specifically his identification of Benson as

       the shooter. Both Brooks’s testimony and the challenged statement were

       largely consistent with Schmitt’s testimony and with the investigating officer’s

       testimony that Brooks identified Benson as the shooter. As such, without

       deciding whether an objection to admission of the challenged statement would

       have been sustained, we note the admission of the challenged statement was

       most likely harmless as it was largely cumulative of other evidence presented to

       the jury. Given the largely cumulative nature of the challenged statement,

       Brooks has failed to prove that he was prejudiced by the admission of the

       statement. Attorney Miller, therefore, cannot be found to have provided

       ineffective assistance in this regard.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 14 of 21
                            D. Alleged Prosecutorial Misconduct
[30]   Benson last asserts that Attorney Miller provided ineffective assistance by

       failing to object to certain instances of alleged prosecutorial misconduct during

       trial. For its part, the State asserts that “[t]he post-conviction court did not

       adjudicate these allegations of ineffective assistance of counsel because

       [Benson] did not litigate them before that court.”3 Appellee’s Br. p. 21. As

       such, the State asserts that this assertion is waived. We agree.


[31]   “‘Issues not raised in the petition for post-conviction relief may not be raised for

       the first time on post-conviction appeal.’” Walker v. State, 843 N.E.2d 50, 57

       (Ind. Ct. App. 2006) (quoting Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001));

       see also Ind. P-C.R. 1(8) (providing that “[a]ll grounds for relief available to a

       petitioner under this rule must be raised in his original petition”). Review of

       the record reveals that Benson did not include his assertion that Attorney Miller

       provided ineffective assistance on this basis in either his November 22, 2013

       PCR petition or his February 14, 2014 amended PCR petition. Likewise,

       Benson did not present argument during the evidentiary hearing relating to the

       alleged prosecutorial misconduct. Thus, because Benson did not present this

       claim to the post-conviction court, the claim is unavailable here and

       consequently is waived. Walker, 843 N.E.2d at 57 (citing Richardson v. State,

       800 N.E.2d 639, 647 n. 4 (Ind. Ct. App. 2003) (holding that the petitioner




       3
         The State acknowledges that Benson raised this issue on direct appeal, but correctly notes that Benson did
       not raise the issue in the underlying post-conviction proceedings.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017         Page 15 of 21
       waived a claim because it was not presented to the post-conviction court), trans.

       denied; Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct. App. 2002) (holding that

       issues not raised in the petition for post-conviction relief may not be raised for

       the first time on the post-conviction appeal; the failure to raise an argument in

       the petition waives the right to raise the argument on appeal), trans. denied).


                              II. Newly Discovered Evidence
[32]   Benson also contends that he is entitled to a new trial in light of certain newly

       discovered evidence.

               New evidence mandates a new trial only when a defendant
               demonstrates that: (1) the evidence has been discovered since
               trial; (2) it is material and relevant; (3) it is not cumulative; (4) it
               is not merely impeaching; (5) it is not privileged or incompetent;
               (6) due diligence was used to discover it in time for trial; (7) it is
               worthy of credit; (8) it can be produced upon a retrial of the case;
               and (9) it will probably produce a different result at trial. Taylor
               v. State, 840 N.E.2d 324, 329-30 (Ind. 2006). We “analyze[ ]
               these nine factors with care, as the basis for newly discovered
               evidence should be received with great caution and the alleged
               new evidence carefully scrutinized.” Id. at 330 (quotation
               omitted). The burden of showing that all nine requirements are
               met rests with the petitioner for post-conviction relief. Id.


       Whedon v. State, 900 N.E.2d 498, 504 (Ind. Ct. App. 2009), summarily aff’d, 905

       N.E.2d 408, 409 (Ind. 2009).


[33]   In arguing that he is entitled to a new trial in light of certain newly discovered

       evidence, Benson asserts the following:



       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 16 of 21
               Since Mr. Benson’s trial in 1999, there has come into existence
               important new scientific evidence in the area of eyewitness
               identification. Because Mr. Benson’s conviction in this case
               rested almost entirely on the purported eyewitness identification
               of him as the shooter by one witness, the scientific evidence
               regarding eyewitness identifications constitutes newly discovered
               evidence that entitles him to a new trial where that evidence can
               be presented.


       Appellant’s Br. p. 27. In support of this assertion, Benson called Dr. Geoffrey

       Loftus, a professor in the Department of Psychology at the University of

       Washington, as a witness during the evidentiary hearing. Dr. Loftus is an

       experimental psychologist whose “general research area has to do with human

       perception, the means by which people get information by their sense organs

       into their brain; and the associated study of human memory, the study of how

       information, once in the brain, is transformed, stored and used later for any task

       that requires memory.” PCR Tr. p. 6.


[34]   With regard to this particular case, Dr. Loftus testified that before appearing in

       court, he reviewed “some police reports, some trial testimony, deposition

       testimony, information provided to me by Mr. Benson back in 2009 when I

       originally got involved in this case. And in particular, statements by one of the

       main eyewitnesses in the case.” PCR Tr. p. 20. Dr. Loftus went on to testify at

       length about his research into how memory works and how certain factors can

       impact one’s memory.


[35]   After the State objected to Dr. Loftus’s continued testimony, the post-

       conviction court questioned the relevance of Dr. Loftus’s testimony regarding

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 17 of 21
how memory works in the post-conviction proceedings because “[t]his is all

information that would have been available at the time of the trial, lighting,

distance, accuracy of the victim’s perception -- witness’s perception.” PCR Tr.

p. 23. Benson argued that Dr. Loftus’s testimony was relevant because it

included newly discovered evidence of “research that’s been conducted since

this trial was held on the ability of witnesses to view certain distances under

certain conditions.” PCR Tr. p. 23. After allowing Dr. Loftus to continue his

lengthy testimony about how factors like distance, lighting, attentiveness, and

duration can impact an individual’s ability to identify someone, the post-

conviction court stated the following:

        I have to say that as learned as the professor is, what I’ve heard
        so far is that distance, lighting, attentiveness and duration all
        affect a witness’s perception and ability to ID somebody.

        And I’m not sure how this would assist the trier of fact since
        that’s always an issue in an eyewitness identification case.

        And how is -- has this -- has this study that he’s conducted by
        accepted by any courts as scientific evidence that’s admissible in
        court under those restrictions?

                                                ****

        But this -- now you’re getting into a specific study with specific
        outcomes, mathematical calculations to show jurors that this is
        how much blurring would occur. And I think that’s a specific
        scientific experiment that’s been conducted. And if you’re asking
        or want the Court to say counsel was ineffective or that this is
        newly discovered evidence, I need to know if this is newly
        discovered evidence that’s been accepted by courts as
        scientifically accepted procedure.

Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 18 of 21
               So yeah. The fact that he’s an expert in his field doesn’t cover
               the -- would not cover those issues.


       PCR Tr. pp. 43-44. In response to the post-conviction court’s concerns, Dr.

       Loftus indicated that general testimony about the article had been permitted “in

       a couple of cases in the State of Massachusetts” and “a couple of times in the

       State of Washington where it has come up in jury trial.” PCR Tr. p. 44.


[36]   Benson’s counsel then questioned Dr. Loftus about whether he believed that an

       individual could make a visual identification of another person from a distance

       of 100 to 150 feet. Dr. Loftus indicated, over the State’s objection, that given

       his research into to mathematical calculations as to when blurring generally

       occurs, he believes that “at about 150 feet away, a witness’s ability to correctly

       identify somebody falls to essentially zero.” PCR Tr. p. 49. Dr. Loftus

       continued that “100 feet during the day, wouldn’t preclude a witness’s ability to

       correct identify somebody but the chances would be relatively low” but at night,

       “the chances would be essentially nil according to the research that we’ve

       done.” PCR Tr. p. 50. Benson’s counsel then introduced pictures of Benson

       which Dr. Loftus had intentionally blurred based on his mathematical

       calculations relating to blurring. The post-conviction court admitted these

       pictures over the State’s objection. Dr. Loftus later testified that his research

       into to the mathematical calculations for when blurring typically occurs was not

       available prior to 2000.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 19 of 21
[37]   Following conclusion of the evidentiary hearing, the post-conviction court

       concluded that Benson failed to meet his burden of proving that Dr. Loftus’s

       research, i.e., the allegedly newly-discovered evidence, necessitated a new trial.

       In reaching this conclusion, the post-conviction court explained:


               15. Dr. Loftus testified that he is a psychology professor at the
               University of Washington in Seattle. He stated he has conducted
               research in the area of human perception. Among his findings he
               testified to were how witness’s perceptions are affected by
               lighting conditions, distance, length of time to view an event,
               presence of distractions, and cross-racial identification reliability.
               He also testified as to research on photo arrays and possibilities
               of suggestibility in viewing photo arrays.

                                                       ****

               At a minimum the Court finds that the purpose for this evidence
               would be to impeach the eyewitness’ testimony. Further,
               witnesses were questioned on vantage points and viewing
               conditions; the jury had these factors to consider, even if they did
               not have Dr. Loftus’[s] particular study to weigh the evidence.
               And again, even if Dr. Loftus’[s] study had been available in
               1999 and was not presented to the jury, there is very little
               likelihood that counsel would be deemed ineffective for failing to
               present it in these circumstances, for reasons previously
               mentioned.

               Conclusion

               Defense counsel presented a vigorous and substantial defense to
               the jury. The State’s evidence was rigorously challenged and
               subjected to close scrutiny. The fact that Petitioner was
               ultimately convicted does not equate to … an unfair trial. The
               Court finds that Petitioner has failed to meet his burden of proof.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 20 of 21
       Appellant’s App. Vol. III, pp. 54, 61-62 (italics and underlining in the original).


[38]   Despite Benson’s assertion to the contrary, on review, we agree with the post-

       conviction court’s determination that the proffered allegedly newly discovered

       evidence would merely have served as an attempt to impeach the credibility of

       Schmitt’s identification of Benson as the shooter. Although Dr. Loftus’s study

       had not been completed or published as of the date of Benson’s trial, the same

       factors discussed by Dr. Loftus were known at the time. In fact, defense

       counsel thoroughly questioned Schmitt during cross-examination about these

       factors, including her vantage point and the viewing conditions. Benson has

       failed to establish in the instant post-conviction proceedings that the

       introduction of Dr. Loftus’s study at trial would have resulted in a different

       result. We therefore conclude that Benson failed to meet his burden of proving

       that the proffered allegedly newly discovered evidence necessitated a new trial.



                                               Conclusion
[39]   In sum, we conclude that Benson failed to establish that he suffered ineffective

       assistance of trial counsel or that the proffered allegedly newly-discovered

       evidence necessitated a new trial. Accordingly, we affirm the judgment of the

       post-conviction court.


[40]   The judgment of the post-conviction court is affirmed.


       Baker, J., and Mathias, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-PC-897 | September 5, 2017   Page 21 of 21
