 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                  FILED
                                                               Oct 02 2012, 9:27 am
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
                                                                       CLERK
                                                                     of the supreme court,
                                                                     court of appeals and
                                                                            tax court
 collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                      GREGORY F. ZOELLER
Public Defender of Indiana                            Attorney General of Indiana

J. MICHAEL SAUER                                      MICHAEL GENE WORDEN
Deputy Public Defender                                Deputy Attorney General
Indianapolis, Indiana                                 Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

ARTHUR J. BRYANT,                                     )
                                                      )
       Appellant-Defendant,                           )
                                                      )
                vs.                                   )      No. 31A04-1109-PC-542
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                      APPEAL FROM THE HARRISON SUPERIOR COURT
                            The Honorable Roger D. Davis, Judge
                                Cause No. 31D01-0506-PC-2


                                           October 2, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Arthur John Bryant appeals from the post-conviction court’s order denying his petition

for post-conviction relief. Bryant presents the following issues for our review, which we

restate as:

       1.     Did the post-conviction court err by concluding that Bryant was not
              denied the effective assistance of trial counsel?

       2.     Did the post-conviction court err by concluding that Bryant was not
              denied due process by the State’s failure to provide a witness statement
              during discovery prior to Bryant’s trial?

       3.     Were the alleged cumulative errors made by Bryant’s trial counsel and
              the discovery failure such that Bryant is entitled to have his conviction
              reversed and a new trial ordered?

       We affirm.

       In a published decision affirming Bryant’s convictions upon direct appeal, this court

set out the underlying facts as follows:

              The facts most favorable to the verdict are that seventeen-year-old
       Bryant was living with his father, Lee, and stepmother, Carol. Kristi—
       Bryant’s mother—determined that she could no longer control her son’s
       behavior. At some point, Bryant had been adjudicated a juvenile delinquent
       for committing a number of offenses.

              It was revealed that Bryant stole from Kristi, threatened her with a
       baseball bat and choked her on at least one occasion. Bryant had also
       threatened to kill Carol and expressed hostility toward her in some poetry he
       had written, which included references to a person being found dead in the
       trunk of an automobile.

              On Tuesday, January 4, 2000, Bryant and Carol argued. When Lee
       returned home from work the following day, neither Bryant nor Carol was at
       home. Lee eventually discovered a note Bryant had written explaining that he
       was going to spend the night with his friend, Doug Kintner. However, when
       Carol did not return home, Lee became concerned and telephoned Carol’s
       mother and some other people. Lee also drove to various places in search of
       his wife. When Carol had still not returned the following day, Lee reported
       her missing to the police.

                                              2
       The police discovered Carol’s vehicle early Saturday morning on State
Road 56 in Washington County. At Kristi’s suggestion, the police looked
inside the trunk and found Carol’s dead body wrapped in a comforter. An
investigation revealed that Carol had died from asphyxiation as a result of
ligature strangulation. Thereafter, the police located Bryant and arrested him
in Salem on January 8, 2000. At the time of the arrest, Bryant was
approximately one month away from his eighteenth birthday.

       It was determined that between Wednesday and Saturday, Bryant had
driven Carol’s vehicle, with her body inside the trunk. He showed off the car
to his friends, gave away some of Carol’s jewelry, and sold some of her
property to a pawnshop.

       After the arrest, Bryant told his mother that he could not take any more
of Carol’s “crap,” and he also had told Lee that “it was either her or me.” Tr. p.
1351–55; 1449–50, 1950–52. DNA analysis on a pair of jeans recovered by
the police from the trunk of Carol’s car showed that the jeans contained
Carol’s bodily fluids, and that Bryant had worn the jeans.

        While at the police station, Detective Richard Bauman of the Harrison
County Sheriff’s Office attempted to question Bryant. Bryant immediately
requested the presence of an attorney, whereupon Detective Bauman permitted
him to consult with Kristi in an interview room. However, Detective Bauman
and Officer William Whelen secretly listened to the conversation and recorded
it by means of a hidden microphone and video camera. While the recording is
inaudible, Detective Bauman and the officer both testified “[d]uring the time
set for Kristi and [Bryant] to talk, [Bryant] informed her that he had told his
father that he had a problem with Carol. He told his father to take care of it or
he would. He said he took care of it.” Tr. p. 271, 277, 1355. Detective
Bauman initially testified at a motion to suppress hearing and in his deposition
that he heard this statement as he entered the interview room. However, he
changed his testimony at trial, indicating that he heard this statement while
secretly listening to the conversation by means of the hidden microphone.
While Bryant objected to Officer Bauman’s testimony, he failed to object to
the statements made by Officer Whelen.

       Also at trial, the State established that Bryant enjoyed listening to rap
music and would spend time rewriting the lyrics to certain songs. Some of the
lyrics Bryant wrote referenced placing a body in the trunk of a car. At some
point, the police discovered the poems, and the State offered them into
evidence in an effort to insinuate that they foretold Carol’s murder.


                                        3
              Bryant’s defense at trial was that Lee had committed the murder. In an
      effort to establish that defense, Bryant made offers of proof to demonstrate that
      Carol and Lee’s relationship was violent. The particular evidence sought to
      establish that Carol feared Lee and wanted to leave him. Several witnesses
      testified that Lee had physically attacked Carol several months before the
      murder. These witnesses also testified that Lee would choke Carol during his
      attacks.

              Two officers also testified regarding a domestic disturbance that
      occurred between Lee and Carol on February 5, 1995. Both officers testified
      that Carol was bleeding and had redness around her neck. A life-long friend
      also testified about Lee’s violent attacks on Carol. Two of Carol and Lee’s
      neighbors testified that they witnessed Lee attack Carol in Carol’s front yard
      on one occasion. Another neighbor witnessed Lee shove Carol in September
      or October prior to Carol’s death. The trial court ultimately excluded the
      admission of most of this evidence on relevancy and hearsay grounds. The
      trial court also noted that the prior acts of violence were too remote in time as
      a basis for his ruling.

              At [the] conclusion of the jury trial on August 21, 2001, Bryant was
      convicted on all counts. Thereafter, the trial court sentenced him to sixty years
      for Murder, two years and three months for theft, and two years and three
      months on the obstruction of justice charge. Bryant was ordered to serve the
      sentences consecutively to each other and consecutive to the sentences that he
      had received in all other cases. As a result, Bryant was ordered to serve sixty-
      four and one-half years in this cause, plus the sentences in the other causes for
      a total of eighty-one and one-half years.

Bryant v. State, 802 N.E.2d 486, 491-93 (Ind. Ct. App. 2004).

      In his direct appeal, Bryant presented the following issues for our review:

      1)     whether an inculpatory statement Bryant made to his mother should
             have been suppressed because it was improperly obtained by officers
             who had eavesdropped on and recorded their conversation;

      2)     whether evidence offered to establish that Bryant’s father, Lee, killed
             Bryant’s stepmother was improperly excluded;

      3)     whether certain song lyrics written by Bryant that were introduced into
             evidence by the State should have been excluded as irrelevant and
             prejudicial;


                                             4
       4)     whether evidence of prior incidents during which Bryant had choked
              his mother and threatened her should have been excluded from
              evidence as irrelevant and prejudicial;

       5)     whether the trial court abused its discretion in finding certain factors to
              be aggravating or mitigating for purposes of sentencing; and

       6)     whether his sentence was inappropriate in light of the nature of the
              offenses and the character of the offender.

A panel of this court affirmed Bryant’s convictions and sentence.

       In Bryant’s pro se petition for post-conviction relief, Bryant argued that he had

received the ineffective assistance of trial counsel because counsel had not objected at every

opportunity to the admission of evidence regarding the inculpatory statements he made while

consulting with his mother. He further claimed that there were gaps in the chain of custody

of some evidence, and that there was evidence that someone else had committed the crime.

The petition was amended to add several new grounds, each alleging ineffective assistance of

trial counsel, and that appellate counsel was ineffective for failing to seek rehearing or

transfer on the issue that Lee’s testimony did not open the door to impeachment evidence

regarding his physical assaults on the victim. The petition was further amended to add a

claim that trial counsel was ineffective for not discovering, prior to trial, that the victim had

told another person she wished to leave Lee, but was fearful of doing so. The second,

amended petition for post-conviction relief also contained the claim that Bryant was denied

due process because the State suppressed evidence favorable to Bryant by failing to turn over

statements of two witnesses.

       A hearing was held on Bryant’s petition for post-conviction relief during which his

trial attorneys, Leah Fink and Michael Summers, testified. Both attorneys stated that they

                                               5
had spent a great deal of time and effort on Bryant’s case, and made numerous objections and

offers of proof at Bryant’s jury trial. The attorneys contended that some defense evidence

was excluded by the trial court because of the unpredictable nature of trial.

       Attorney Fink testified that she and her co-counsel should have raised objections to

testimony from witnesses for the State regarding what they overheard of the conversation

between Bryant and his mother, Kristi, and from one of the detectives, who indicated that

Bryant would not talk with him once he was represented by counsel. Attorney Fink further

testified that she and her co-counsel should have objected to testimony from other witnesses.

She stated that the failure to make objections was not a trial strategy or tactical decision, but

was a mistake.

       Fink testified that oftentimes attorneys decide not to object too much in order to avoid

leaving the jury with the impression that the defense has something to hide. Fink stated that

she considered that strategy in Bryant’s case. Further, decisions about lodging objections are

split-second decisions at trial. She admitted that a jury would not look favorably upon

Bryant because he drove around for several days with his stepmother’s body in the trunk of

the car, and because Bryant was not a likable person. She stated that she did not believe, in

hindsight that the defense team did a good job of preserving the record for appeal.

       Attorney Summers agreed that objections should have been made to certain testimony,

but agreed with Attorney Fink that oftentimes it is not wise for the defense to object too often

for fear of alienating the jury. He could not recall the reasons why objections were not made

to certain testimony at trial, but stated that he had every hope of winning the case. He

testified that the trial strategy was to try to show that Lee, Bryant’s father, had committed the

                                               6
murder, that the strategy was discussed with Bryant, and that the strategy was based upon

what Bryant had told them.

       Tracy Borden, a friend of Carol’s and who was known at the time of the hearing as

Tracy Beemer, testified that she did not tell Detective Bauman that Carol was afraid Bryant

would kill her. She testified that she told Detective Bauman that Carol told her she wanted to

leave Lee, but that she was afraid he would kill her if she did so. Borden further testified that

she provided a handwritten statement to Detective Bauman in which this information was

relayed to him. In addition, she testified that after she gave her voluntary statement to law

enforcement, no one contacted her prior to trial, including Attorney Fink and Attorney

Summer.

       On August 31, 2011, the post-conviction court issued its findings of fact and

conclusions thereon denying Bryant’s petition for post-conviction relief.1 Bryant now

appeals.




1
  We commend the post-conviction court for the quality and thoroughness of its findings of fact and
conclusions thereon, which greatly aided appellate review.

                                                7
       Post-conviction proceedings are civil proceedings in which the defendant must

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

Ben–Yisrayl v. State, 738 N.E.2d 253 (Ind. 2000), cert. denied (2002). Post-conviction

proceedings do not afford the petitioner an opportunity for a super appeal, but rather, provide

the opportunity to raise issues that were unknown or unavailable at the time of the original

trial or the direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253; Wieland v. State, 848 N.E.2d

679 (Ind. Ct. App. 2006). The proceedings do not substitute for a direct appeal and provide

only a narrow remedy for subsequent collateral challenges to convictions. Ben–Yisrayl v.

State, 738 N.E.2d 253.

       When a petitioner appeals a denial of post-conviction relief, he appeals from a

negative judgment. Fisher v. State, 878 N.E.2d 457 (Ind. Ct. App. 2007). The petitioner

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

conclusion contrary to that of the post-conviction court. Id. We will disturb a post-

conviction court’s decision as being contrary to law only where the evidence is without

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

opposite conclusion. Wright v. State, 881 N.E.2d 1018 (Ind. Ct. App. 2008). The post-

conviction court is the sole judge of the weight of the evidence and the credibility of

witnesses. Lindsey v. State, 888 N.E.2d 319 (Ind. Ct. App. 2008). We accept the post-

conviction court’s findings of fact unless they are clearly erroneous, and no deference is

given to its conclusions of law. Fisher v. State, 878 N.E.2d 457.




                                              8
                                              1.

       Bryant argues that he received ineffective assistance of trial counsel on several

substantive grounds. He claims that the trial court’s conclusion that he received effective

assistance of trial counsel is clearly erroneous and should be reversed.

       In order to prevail on his claim that trial counsel rendered ineffective assistance,

Bryant must demonstrate the existence of the two components of that claim, as established in

Strickland v. Washington, 466 U.S. 668 (1984). Creekmore v. State, 853 N.E.2d 523 (Ind.

Ct. App. 2006), clarified on reh’g, 858 N.E.2d 230. He must first establish that counsel’s

performance was deficient, i.e., fell below an objective standard of reasonableness and that

the errors in representation were so serious that counsel was not functioning as counsel

guaranteed by the Sixth Amendment. Id. Counsel’s performance, however, is presumed

effective, and a defendant must offer strong and convincing evidence to overcome this

presumption. Ben-Yisrayl, 729 N.E.2d at 106.

       A showing of deficient performance alone is not enough, however, to prevail on a

claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668. The

petitioner must also show that the deficient performance prejudiced the defense. Id. This

requires showing that counsel’s errors were so serious as to deprive the defendant of a fair

trial, meaning a trial whose result is reliable. Id. To establish prejudice, a defendant 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. at 694, 104 S.Ct. 2052. A reasonable

probability is one that is sufficient to undermine confidence in the outcome. Id.



                                              9
       Because a petitioner must prove both elements, the failure to prove either element

defeats the claim. See Young v. State, 746 N.E.2d 920 (Ind. 2001) (holding that because the

two elements of Strickland are separate and independent inquiries, the court may dispose of

the claim on the ground of lack of sufficient prejudice if it is easier). We address Bryant’s

contentions in turn.

       Bryant argues that his trial counsel was ineffective by failing to object to the

testimony of Alice Alcorn and by failing to impeach her testimony. Alcorn had testified at

trial that she was very good friends with Carol, that Carol had worked with her briefly, and

that Bryant had come into their place of employ on occasion. During one of those visits,

Bryant and Carol argued because Bryant, who was not eighteen years old, wanted Carol to

buy some cigarettes for him and give him some money. Carol declined and Bryant was

upset. Alcorn testified that she heard Bryant, who was noticeably still upset, say that he

would pay Carol back before he was eighteen years old. Alcorn testified that on another

occasion, she heard Bryant state that “he would kill that bitch” in reference to his stepmother,

Carol. Transcript at 921.

       More specifically, Bryant contends that trial counsel was ineffective for not objecting

to Alcorn’s testimony as prior misconduct evidence under Indiana Evidence Rule 404(b), by

not moving to strike the testimony, and by failing to impeach Alcorn with her prior

statements, in which she failed to mention that Bryant had threatened to kill Carol.

       In order to demonstrate ineffective assistance of trial counsel based upon a failure to

object, a petitioner must demonstrate that the trial court would have sustained the objection.

Glotzbach v. State, 783 N.E.2d 1221 (Ind. Ct. App. 2003). The petitioner must also establish

                                              10
the resulting prejudice from his trial counsel’s failure to properly object. Timberlake v. State,

690 N.E.2d 243.

       Indiana Evidence Rule 404(b) provides in part:

       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. . . .

In Ross v. State, 676 N.E.2d 339, 345-46 (Ind. 1996), the Supreme Court held that the

defendant’s statements that the victim “would pay,” and threats to kill the victim made two

months before her murder, were admissible under Evid. Rule 404(b) because the evidence

demonstrated the defendant’s motive and intent to commit the murder, and shed light on the

relationship between the victim and that defendant. Although decided under Evid. Rule 403

analysis, our Supreme Court, in Berry v. State, 704 N.E.2d 462 (Ind. 1998), held that a threat,

viz., “I will kill you all and then leave,” made to the eventual victims six months prior to their

murders, was properly admitted at trial and that the danger of unfair prejudice did not

outweigh the probative value of the statements. The Supreme Court held that the evidence

was illustrative of the relationship between the defendant and the rest of his family.

       Here, Alcorn’s statements were relevant to show Bryant’s motive and intent and his

relationship with the victim, his stepmother. Thus, Bryant’s statements were admissible and

an objection would not have been sustained. We have previously held that “[c]ounsel is not

rendered inadequate for failing to make a futile objection.” Curtis v. State, 905 N.E.2d 410,

418 (Ind. Ct. App. 2009). Bryant has failed to show that had a proper objection been made,




                                               11
the court would have had no choice but to sustain it. See id. (counsel cannot be faulted for

failing to make an objection that had no chance of success).

       In addition, Bryant claims that the evidence would not have been admissible because

the State did not comply with the notice requirements of Evid. Rule 404(b). The rule

provides that the State must provide reasonable notice in advance of trial, or during trial, if

good cause is shown, of the general nature of the evidence it intends to introduce at trial.

Evid. Rule 404(b).

       During the evidentiary hearing on Bryant’s petition for post-conviction relief, the only

evidence presented about this statement was from Lieutenant Roy Wiseman and indicated

that Alcorn had never told him that she heard Bryant threaten to kill Carol. Thus, not only

was the defense unaware prior to trial that Alcorn was going to testify as she did, but the

State was likewise unaware prior to trial that Alcorn would testify as she did. The post-

conviction court did not erroneously conclude that Bryant failed to meet his burden of

establishing this claim.

       Bryant further argues that he received ineffective assistance of trial counsel because

counsel did not impeach Alcorn with prior inconsistent statements. At the evidentiary

hearing on Bryant’s petition, Attorney Fink testified that she was surprised and shocked by

Alcorn’s testimony at trial that Bryant had threatened to kill his stepmother. Attorney Fink

testified that she continued to pursue the defense strategy of focusing on Lee’s treatment of

Carol in order to support their theory that he was the perpetrator of the crime, and did so in

her cross-examination of Alcorn. Fink stated that she was not certain that she would have

been successful in an attempt to impeach Alcorn had she done so.

                                              12
       Attorney Summers testified at the hearing that he only somewhat remembered Alcorn

and had no recollection of what he anticipated Alcorn’s testimony at trial would be. He also

stated that the focus of the defense was to portray Lee, Bryant’s father, as the perpetrator.

Summers did not recall why he did not attempt to impeach Alcorn and could not recall what

his thoughts were at the time Alcorn gave her testimony at trial. He agreed with Attorney

Fink that he was not certain that Alcorn could have been successfully impeached.

       Bryant contends that he is entitled to post-conviction relief because, in addition to the

testimony cited above, Attorney Fink asserted that her failure to object to or impeach

Alcorn’s trial testimony about Bryant’s threats to kill his stepmother was a clear mistake on

the part of the defense. Attorney Summers testified that had he been thinking he would have

attempted to impeach Alcorn.

       The defense strategy was to portray Lee as the perpetrator of Carol’s murder and to

focus the jury’s attention on him. Thus, trial counsel advanced that tactic through their

treatment of Alcorn’s testimony at trial. We have previously made the observation that the

choice of a defense theory is a matter of trial strategy. Benefield v. State, 945 N.E.2d 791

(Ind. Ct. App. 2011). On review, we give significant deference to trial counsel in the choice

of a strategy, which under particular circumstances or at a particular time seems to be the

best. Id. Our task is not to second-guess the propriety of trial counsel’s tactics, even when it

may be subject to criticism or proves ultimately detrimental to the defendant, so long as it is

not so deficient or unreasonable as to fall outside of the objective standard of reasonableness.

Id. “A decision to not object to evidence when the objection may be more damaging than



                                              13
the evidence is within the wide range of professionally competent assistance.” Stevens v.

State, 770 N.E.2d 739, 752 (Ind. 2002).

       The testimony highlighted by Bryant appears to be a hindsight evaluation by trial

counsel of what occurred at trial and what could have been done differently. “Judicial

scrutiny of counsel’s performance is highly deferential and should not be exercised through

the distortions of hindsight.” Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995).

Consistent with this standard of review, we find that Bryant has failed to meet his burden of

establishing that the post-conviction court’s decision is clearly erroneous.

       Bryant asserts that he received ineffective assistance of trial counsel due to their

failure to object at every opportunity to the admission of statements Bryant made to his

mother during his consultation with her. In Bryant’s direct appeal, we expressed our

disapproval of the police officers’ conduct, which involved the eavesdropping on and

recording of Bryant’s conversation with his mother. We concluded that the officers’ conduct

denied Bryant the meaningful consultation with his mother that was provided for by statute.

Ind. Code Ann. §31-32-5-1 (West, Westlaw current with all 2012 legislation). Bryant could

not have waived his rights because he did not have a meaningful consultation with his

mother.

       Because Bryant did not waive his rights, the inculpatory statements should not have

been admitted at trial. We noted in our opinion on direct appeal that under harmless error

analysis, however, the admission of those statements through Detective Bauman’s testimony

was merely cumulative of other testimony to which Bryant did not object. His mother

testified to statements that were made during their conversation. Further, Officer Whelan

                                             14
testified similarly to Detective Bauman’s testimony. Thus, the statements were cumulative of

other properly admitted testimony to which there was no objection made.

       Attorney Fink and Attorney Summers testified during the evidentiary hearing that at

times the better strategy is not to object too often. The inference some jurors might draw

from frequent objections is that the defense is hiding information from the jury.

Additionally, defense counsel is not ineffective for purposes of our review unless the

objection would have been sustained. Kubsch v. State, 934 N.E.2d 1138 (Ind. 2010).

       Here, the trial court had already admitted the statements via Detective Bauman’s

testimony. The objections that defense counsel would have made to Kristi’s testimony and

Officer Whelan’s testimony to the same effect would have been the same. Given the trial

court’s previous ruling, it was reasonable for trial counsel to infer that the trial court would

not have sustained further objections to similar testimony. Defense counsel is not ineffective

for failing to make a futile objection. Curtis v. State, 905 N.E.2d 410 (Ind. Ct. App. 2009).

       During the evidentiary hearing, Attorney Fink described the failure to object to the

statements as a mistake. As discussed above, this assessment is merely a hindsight

evaluation of trial performance. Consistent with our standard of review, we will not engage

in such evaluation. Spranger v. State, 650 N.E.2d 1117.

       Attorney Summers, on the other hand, testified that he could not state why he did not

object, but admitted that there may have been a strategic reason for not objecting. He stated

that he was not concerned with preserving errors for appeal, but with winning the trial. We

can conclude from that testimony that his strategy was to focus on obtaining a successful

result at trial, rather than to focus on preserving alleged errors for appeal. We have held that

                                              15
it is reasonable for counsel to balance the strategic value of an action at trial against the

benefit of preserving appellate error. Santonelli v. State, 743 N.E.2d 1281 (Ind. Ct. App.

2001).

         Even had trial counsel objected to the admission of the inculpatory statements

introduced through Kristi’s and Officer Whelan’s testimonies, there is no guarantee that this

error would have resulted in the reversal of Bryant’s conviction. Although the statements

were inculpatory, there was significant independent evidence of Bryant’s guilt, such that the

alleged error amounts to harmless error. Where there is sufficient “untainted” evidence to

support the conviction, we will find harmless error. Mayfield v. State, 402 N.E.2d 1301 (Ind.

Ct. App. 1980). Here, the State presented evidence that Bryant had driven Carol’s car around

for several days with Carol’s body wrapped in a comforter inside the trunk. He sold some of

her jewelry and gave some of the jewelry to friends. DNA evidence established that a pair of

jeans found inside the trunk of the car contained the victim’s bodily fluids and that Bryant

had worn the jeans. Other testimony established that Bryant was hostile to Carol in his

actions toward her and through his rap lyrics. Bryant had been heard threatening to kill his

stepmother. Bryant has failed to meet his burden of establishing the ineffective assistance of

counsel.

         Bryant contends that Attorney Fink was ineffective through her questioning of

Bryant’s parole officer, Stephanie Ringer about why Bryant began residing with Lee and

Carol, rather than with Kristi, his mother. In response to the question, Ringer testified that

the reason Bryant moved out was because of an incident where Bryant took Kristi’s truck and

drove it to another county. The State successfully argued to the trial court that the defense

                                             16
had opened the door to questioning about additional reasons that would complete the

explanation of why Bryant had left his mother’s house to live with his father. Kristi testified

that Bryant’s behavior was out of control and that she thought that Lee could do a better job

of controlling Bryant’s behavior. Kristi acknowledged that she was afraid of Bryant, that he

stole checks from her, and that on one occasion he had chased her with a baseball bat and

choked her.

       On direct appeal, Bryant challenged the trial court’s decision to allow the additional

evidence claiming that the trial court abused its discretion. We concluded that the trial court

did not abuse its discretion because defense counsel’s questioning left the jury with an

incomplete and misleading impression that Bryant was sent to live with Lee because he had

taken Kristi’s truck without permission on one occasion. The State was properly allowed to

present the jury with the complete factual situation because the defense had opened the door

to the issue.

       Bryant argued in his petition for post-conviction relief that Attorney Fink was

ineffective for questioning Ringer along those lines, thus opening the door to the admission

of the evidence of Bryant’s altercation with Kristi. The post-conviction court concluded that

counsel was not ineffective.

       Defense counsel called Ringer as a witness for the defense because both attorneys

believed that she had evidence that would be helpful to Bryant’s defense. Attorney Fink

testified that at the time of trial, she did not believe that she had opened the door to evidence

of the physical altercation or other misconduct evidence via her questioning of Ringer. The

defense strategy was to call Bryant as a witness at trial to present his account of what had

                                               17
happened to Carol. That testimony occurred prior to Ringer’s testimony. During Bryant’s

testimony, his prior convictions were placed before the jury, thereby making the jury aware

of his bad character and his prior crimes of dishonesty. This strategy involved the calculated

risk of placing Bryant’s criminal history before the jury in order for Bryant to present his

defense to the jury. Our Supreme Court has held that the decision to put on positive evidence

at the risk of negative rebuttal evidence is an example of the kind of trial strategy that is

within the province of trial counsel. Miller v. State, 702 N.E.2d 1053 (Ind. 1998).

       Although Attorney Fink’s questioning of Ringer ultimately proved not to be as helpful

to the defense as hoped, and in fact opened the door to the evidence of Bryant’s altercation

with Kristi, the decision to have Ringer testify for the defense was a reasonable strategic

decision. “Strategies are assessed based on facts known at the time and will not be second-

guessed even if the strategy in hindsight did not serve the post-conviction petitioner’s best

interests.” Curtis v. State, 905 N.E.2d 410, 414-15 (Ind. Ct. App. 2009). We agree with the

post-conviction court’s conclusion that Bryant has failed to establish ineffective assistance of

counsel in this regard.

       Bryant bases his next claim of ineffective assistance of trial counsel on their failure to

exclude evidence of Bryant’s anger, temper, and prior juvenile adjudications. That evidence

was admitted through the testimony of Dennis Duke, Ringer, and Kristi. He argues that the

testimony involved inadmissible evidence under Evid. Rule 404(b) and that counsel should

have objected to the admission of such evidence.

       Bryant claims that his counsel should have objected to the State’s questioning of

Duke. In particular, Bryant claims that his counsel should have objected when the State

                                              18
questioned Duke about whether he had ever seen Bryant angry and if Bryant was mad at

Carol. Quoting from Williams v. State, 690 N.E.2d 162 (Ind. 1997), we have held that “it is

‘by no means clear that weapons possession, evidence of gun sales, and the like, are

necessarily prior ‘bad acts’ for 404(b) purposes.” Pickens v. State, 764 N.E.2d 295, 299 (Ind.

Ct. App. 2002). Similarly, we conclude that the fact Bryant had a temper and was angry on

occasion does not constitute 404(b) evidence of prior bad acts. Because the evidence was not

evidence of prior bad acts, any objection made by his attorneys would not have been

sustained.

       Duke testified on cross-examination that he had seen Bryant on several occasions

when he was “ticked off” and that Bryant had a temper. Transcript at 518. Duke testified

that he had seen some of the damage that Bryant had caused while angry, but did not further

elaborate. A fair reading of the record supports the post-conviction court’s conclusion that

defense counsel was attempting to characterize Bryant’s occasional outbursts as blowing off

of steam as opposed to a motive for killing Carol. Bryant’s attorneys were attempting to

show that Duke did not take Bryant’s angry outbursts seriously. That strategy, although

ultimately unsuccessful, was a reasonable strategy to offset the State’s argument that Bryant

was angry with his stepmother and finally was angry enough to kill her. Even when strategic

choices are subject to criticism or the choice is detrimental to the defense, we will not find

ineffective assistance of counsel where the strategy is reasonable. Benefield v. State, 945

N.E.2d 791.

       Attorney Fink testified at the hearing that she should have objected to the testimony

on relevancy grounds and had no explanation for her failure to do so. Attorney Fink did not

                                             19
recall Duke until she was shown his testimony. Again, the defense theory was that Lee killed

Carol. Fink’s testimony about what should have been done at trial amounts to a hindsight

evaluation. Given the strong independent evidence of Bryant’s guilt, any error in the

admission of the evidence would have been harmless. Bryant has failed to establish

ineffective assistance of counsel in this regard.

       Bryant also challenges his counsels’ failure to object to a question a juror posed to

Ringer. Ringer, who was Bryant’s parole officer, was asked to explain the offense for which

Bryant was on parole. Ringer testified that Bryant was on parole for theft, burglary, and for a

weapon-in-a-dwelling offense.       Bryant had already informed the jury during cross-

examination that he had prior convictions for theft, check deception, and forgery. The State

was attempting to show Bryant’s lack of credibility.            Because these were criminal

convictions, counsel properly did not object because these offenses were admissible for

impeachment purposes pursuant to Evid. Rule 609(a).

       Although a criminal defendant’s juvenile adjudications are not admissible for

impeachment purposes, Bryant does not raise that claim in his appeal. See Evid. Rule 609(d)

(juvenile adjudication generally not admissible in a criminal case). While it is true that those

convictions were likely juvenile adjudications, the overall trial strategy was to portray Lee as

the perpetrator. Bryant’s attorneys were reasonable in their strategy to try to create the jury’s

trust in Bryant so they would be receptive to his version of the events. Counsel testified that

it oftentimes is a better strategy to refrain from objecting too much in order to eliminate the

belief that the defense has something to hide. Bryant’s own testimony that he had been in

Boys’ School would have tipped off the jury that Bryant had juvenile adjudications. Even

                                               20
unconventional defense strategies will not constitute ineffective assistance of counsel where

the trial result was not rendered unreliable. Potter v. State, 684 N.E.2d 1127 (Ind. 1997).

       Here again, Bryant’s attorneys claimed that it was a mistake not to object to the juror

question. Attorney Fink admitted that her belief was a hindsight evaluation of trial

performance. Attorney Summers admitted that he did not know why he did not object, but

they should have objected. Consistent with our standard of review, we will assess counsel’s

conduct upon facts known at the time of trial, and not through hindsight. Villalon v. State,

956 N.E.2d 697 (Ind. Ct. App. 2011). Bryant has failed to establish ineffective assistance of

trial counsel on this basis.

       Bryant argues that his trial counsel were ineffective by failing to object to his mother’s

testimony that Bryant had a temper and that she was scared of him. Kristi denied on direct

examination that she had ever told law enforcement officers that she was scared of her son.

The State then introduced her prior statement to police during their interview of Kristi and

Lee to refresh her memory and impeach her trial testimony. Her prior statement showed that

she had told the officers that she was scared of Bryant because she was aware of his temper.

       An objection, had one been made, would have been futile. A party may impeach its

own witness. Evid. Rule 607. Further, Evid. Rule 613 allows impeachment of a witness with

the witness’s prior inconsistent statements. Jackson v. State, 925 N.E.2d 369 (Ind. 2010).

Because the evidence was admissible impeachment evidence, an objection would not have

been sustained. “Failure to object to admissible evidence does not constitute deficient

performance by counsel; rather, a defendant must show that had a proper objection been



                                              21
made the court would have had no choice but to sustain it.” Curtis v. State, 905 N.E2d 410,

418 (Ind. Ct. App. 2009).

       Before Kristi testified about Bryant’s temper, the jury was presented with Bryant’s

testimony that he was angry with his stepmother and that the relationship between the two

was strained. Bryant’s testimony was far more harmful to his case because it illustrated that

his anger was directed at his stepmother, the victim in this case. The post-conviction court’s

conclusion that the failure to object was a reasonable strategy and thus, not ineffective

assistance of counsel, is not clearly erroneous. The defense maintained its strategy of

building the jury’s trust so that it would be more receptive to Bryant’s version of the events.

Until Kristi’s testimony was impeached, it was actually favorable to the defense and no

objection was necessary.

       Bryant also bases his claim of ineffective assistance of counsel on the contention that

they failed to impeach portions of Lee’s trial testimony. In fact, Bryant argues that there

were six specific instances at trial when his counsel did not impeach Lee when they

purportedly should have done so. Our Supreme Court has held that the method of

impeaching witnesses is a tactical decision and a matter of trial strategy that does not amount

to ineffective assistance. Kubsch v. State, 934 N.E.2d 1138.

       The record reveals that Bryant’s counsel thoroughly cross-examined Lee. Bryant’s

trial counsel attempted to introduce evidence through other witnesses that would have

challenged Lee’s credibility, but the trial court excluded much of that evidence. Bryant’s

trial counsel were able to elicit testimony from Lee that Bryant would do what he told him,

and this testimony supported the defense theory. Although Bryant argues six specific

                                              22
instances where counsel should have attempted to impeach Lee, Bryant failed to question his

counsel about those instances during the hearing on Bryant’s petition. We are left without a

sufficient record to determine whether Bryant’s counsel chose to forego those impeachment

opportunities for reasons of trial strategy.

       We reiterate that “[a] strong presumption arises that counsel rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). Trial counsel thoroughly

cross-examined Lee and conducted as much impeachment of his testimony as the trial court

would allow. Given the presumption of adequate assistance of counsel, and Bryant’s failure

to present evidence to support his argument vis-à-vis the six impeachment opportunities, we

are constrained to conclude that Bryant has not met his burden of demonstrating that the post-

conviction court’s conclusion that he received effective assistance of counsel was clearly

erroneous.

       Bryant asserts that he received ineffective assistance of trial counsel because of their

failure to interview Tracy Beemer. He claims that because his counsel did not contact

Beemer they did not learn that her statement was not accurately reported by the detective and

that she had provided Detective Bauman with a handwritten copy of her statement. During

the hearing on Bryant’s petition for post-conviction relief Beemer testified that Carol never

told her that Bryant had threatened to kill her or that she was frightened of him. She also

testified that Carol told her that she was abused by her husband, was afraid of him, and

wanted to leave him. She stated that Carol told her that Lee had threatened to kill her.



                                               23
Beemer testified that after she gave her statement to Detective Bauman, no one contacted her

again.

         Attorney Fink testified at the hearing on Bryant’s petition that she was aware of

Beemer and what she had told Detective Bauman, but did not contact her. Attorney

Summers testified that he did not recall if he had interviewed her. Neither one of the

attorneys was questioned at the post-conviction hearing about why they did not contact her.

Given the strong presumption that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment, Bryant’s claim fails

because we cannot determine if the failure to contact Beemer was a matter of trial strategy.

See Timberlake v. State, 753 N.E.2d 591.

         We acknowledge that effective representation requires adequate pretrial investigation

and preparation. Badelle v. State, 754 N.E.2d 510 (Ind. Ct. App. 2001). That said, it is well

established that on review, we should not judge an attorney’s performance with the benefit of

hindsight. Hernandez v. State, 638 N.E.2d 460 (Ind. Ct. App. 1994). “When deciding a

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

deference to counsel’s judgments.” Boesch v. State, 778 N.E.2d 1276, 1283 (Ind. 2002).

         The information from Detective Bauman’s report indicated that Beemer would not

provide evidence that was favorable to Bryant’s defense. Trial counsels’ decision not to

further investigate a witness who would offer unfavorable evidence appears reasonable. The

fact that it was later learned that she could have provided some evidence that would have

been favorable to the defense does not render their representation ineffective. Based upon



                                              24
the information available to trial counsel at the time they were preparing for trial, their

performance was reasonable.

          Additionally, Bryant has failed to establish prejudice from the trial counsels’ decision.

Beemer would not have been allowed to testify about what Carol had told her. Such would

have constituted inadmissible hearsay. “Hearsay is evidence of a statement made out of court

that is offered in a judicial proceeding to prove the truth of a fact asserted in the statement.”

Craig v. State, 630 N.E.2d 207, 209 (Ind. 1994) (citing Evid. Rule 801(c)).

          At the post-conviction hearing Beemer testified to what Carol told her and her

testimony was offered for the truth of those statements. On appeal, Bryant argues that the

statements would have been admissible under Evid. Rule 803(3). “Rule 803(3) creates a

hearsay exception for statements of the declarant’s then-existing state of mind at the time the

statement was made.” Camm v. State, 908 N.E.2d 215, 226 (Ind. 2009). The term “state of

mind” may include emotion, sensation, physical condition, intent, plan, motive, design,

mental feeling, pain, and bodily health. Evid. Rule 803(3). While a victim’s state of mind is

relevant where it has been put at issue by the defendant, such was not the case here. See

Vehorn v. State, 717 N.E.2d 869 (Ind. 1999) (defendant had put victim’s state of mind at

issue).

          “If statements are admitted to show the declarant’s state of mind, and not to prove the

substantive content of those statements, they do not run afoul of the hearsay rule because, by

definition, those statements are not ‘hearsay’ pursuant to Evidence Rule 802.” Vehorn v.

State, 717 N.E.2d 869, 873-74 (Ind. 1999). In Ford v. State, 704 N.E.2d 457 (Ind. 1998), the

victim’s statement to a witness expressing her unhappiness, that she wanted to leave, but was

                                                 25
afraid that if she left again her husband would kill her, was admissible under the exception

because that defendant had placed the victim’s state of mind at issue.

       Here, the defense theory was that Lee had committed the murder. Carol’s state of

mind was not placed at issue. Further, we previously determined in Bryant’s direct appeal

that Carol’s state of mind was not placed in issue by the defense. Bryant v. State, 802 N.E.2d

486. Attorneys who fail to call a witness who would have testified about statements that

were inadmissible are not ineffective. See Johnson v. State, 832 N.E.2d 985 (Ind. Ct. App.

2005) (trial counsel not ineffective for failing to call a witness to testify as to inadmissible

statements), trans. denied. Bryant’s attorneys were not ineffective.

       In sum, we conclude that Bryant has failed to establish he received the ineffective

assistance of trial counsel. Bryant has also failed to establish that the post-conviction court’s

decision was clearly erroneous.

                                               2.

       Bryant contends that the post-conviction court erred by denying his claim of newly

discovered evidence. In particular, Bryant contends that he is entitled to a new trial because

the State failed to disclose to the defense the handwritten statement given by Beemer to

Detective Bauman. Bryant claims that the State failed to turn over this exculpatory evidence

in violation of Brady v. Maryland, 373 U.S. 83 (1963).

       We have recently stated the following:

              Newly-discovered evidence mandates a new trial only when the
       defendant demonstrates each of the following nine requirements:
              (1) the evidence has been discovered since the 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

                                               26
       for trial; (7) the evidence 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 retrial.
       The reviewing court analyzes 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. The burden of showing all nine
       requirements rests with the post-conviction petitioner.

Bunch v. State, 964 N.E.2d 274, 283 (Ind. Ct. App. 2012), trans. denied (internal quotations

and citations omitted). “The burden of showing that all nine requirements are met rests with

the petitioner for post-conviction relief.” Whedon v. State, 900 N.E.2d 498, 504 (Ind. Ct.

App. 2009) (emphasis in original).

       In order to prevail on his Brady claim, Bryant must have established: (1) that the

prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3)

that the evidence was material to an issue at trial. Bunch v. State, 964 N.E.2d 274. For

purposes of a Brady claim, evidence is material only where there is a reasonable probability

that, had the evidence been disclosed, the result of the proceeding would have been different.

Id. “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the

outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985). We will not conclude that the

State has suppressed material evidence where it was available to the defendant through the

exercise of reasonable diligence.        Conner v. State, 711 N.E.2d 1238 (Ind. 1999).

“Suppression of Brady evidence is constitutional error warranting a new trial.” Bunch v.

State, 964 N.E.2d 274, 298 (Ind. Ct. App. 2012), trans. denied. Claims of newly discovered

evidence or Brady violations fail, however, where the evidence establishes that the defense

failed to exercise due diligence to discover the evidence before the trial. Denney v. State,

695 N.E.2d 90 (Ind. 1998).


                                               27
       In the present case, both of Bryant’s trial counsel knew about Beemer and what

Detective Bauman’s report reflected that she told him. Neither attorney contacted Beemer

prior to trial to discover directly from her what Carol had told her. Given her testimony at

the hearing on Bryant’s petition, had they contacted her, they would have discovered that her

version differed from that given by Detective Bauman. They also would have discovered

that she had given him a handwritten statement. Bryant’s Brady violation and newly

discovered evidence claims therefore fail. “The State does not have a duty to disclose

evidence that the defendant knew or should have known existed.” Denney v. State, 695

N.E.2d at 95.

       Additionally, Bryant has failed to establish that the allegedly suppressed evidence was

material. Evidence is material only where there is a reasonable probability that, had the

evidence been disclosed, the result of the proceeding would have been different. Bunch v.

State, 964 N.E.2d 274. A reasonable probability is one that had the evidence been disclosed

to the defense, the result of the proceeding would have been different. Minnick v. State, 698

N.E.2d 745 (Ind. 1998).

       We decided in the first issue that Beemer’s testimony would have been inadmissible

because it was hearsay offered for the truth of the statements where Carol’s state of mind had

not been placed at issue. Had the state disclosed the evidence to the defense, it could not

have led to a different result at trial.

       Bryant has failed to establish that the post-conviction court’s conclusion that Bryant’s

Brady violation and newly discovered evidence claims failed is clearly erroneous. The post-

conviction court did not err.

                                              28
                                                3.

         Bryant contends that the cumulative effect of his ineffective assistance of trial counsel

claims, and his newly discovered evidence and Brady violation claims entitles him to a new

trial.

         “Errors by counsel that are not individually sufficient to prove ineffective

representation may add up to ineffective assistance when viewed cumulatively.” Pennycuff

v. State, 745 N.E.2d 804, 816-17 (Ind. 2001). “A conviction based upon an accumulation of

defense attorney errors, when counsel’s mistakes do substantial damage to the defense, must

be reversed.” French v. State, 778 N.E.2d 816, 826 (Ind. 2002). In this case, the Brady

claim fails because even if his counsel had exercised diligence in discovering Beemer’s

handwritten statement prior to trial, her testimony about Carol’s statements to her would have

amounted to inadmissible hearsay.

         Furthermore, we have addressed each of the bases for Bryant’s claims of ineffective

assistance of counsel and have concluded that the post-conviction court’s denial of post-

conviction relief was not clearly erroneous. “Alleged errors which do not present a single

basis for reversal do not gain the stature of reversible error when viewed en masse.” Lucas v.

State, 499 N.E.2d 1090, 1098 (Ind. 1986). As discussed above, although some of trial

counsel’s strategies and tactics ultimately were not successful in Bryant’s defense, we review

the representation based upon what was known at the time rather than upon hindsight.

Having found that Bryant has established none of the individual claims of ineffective

assistance, we decline to find there is cumulative error requiring reversal. The post-

conviction court’s judgment is not clearly erroneous.

                                                29
      Judgment affirmed.

BROWN, J., and PYLE, J., concur.




                                   30
