MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                     FILED
this Memorandum Decision shall not be                           Sep 28 2016, 5:43 am

regarded as precedent or cited before any                            CLERK
                                                                 Indiana Supreme Court
court except for the purpose of establishing                        Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Albert Boyd                                              Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Albert Boyd,                                             September 28, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1602-PC-375
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Stephen R.
Appellee-Plaintiff.                                      Heimann, Judge
                                                         Trial Court Cause No.
                                                         03C01-0809-PC-2155



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 1 of 15
                               Case Summary and Issues
[1]   In 2006, Albert Boyd was convicted of murder and sentenced to sixty-two years

      in the Indiana Department of Correction. In 2008, Boyd began pursuing post-

      conviction relief. Boyd, pro se, now appeals the denial of his petition for relief,

      raising three issues for our review, which we restate as: 1) whether Boyd

      received ineffective assistance of trial counsel; 2) whether Boyd received

      ineffective assistance of appellate counsel; and 3) whether the post-conviction

      court abused its discretion in denying Boyd’s motion to compel. Concluding

      Boyd did not receive ineffective assistance of trial or appellate counsel and the

      post-conviction court did not abuse its discretion in denying his motion to

      compel, we affirm the denial of his petition for post-conviction relief.



                            Facts and Procedural History
[2]   Around nine o’clock on the morning of January 31, 2006, Boyd approached his

      friend, Octavius Nolan, and his neighbor, Brian Christian and asked them to

      take him to the hospital. Boyd had attempted to commit suicide and was

      bleeding from his arm. On the way to the hospital, the men asked Boyd about

      his injuries and his wife Ruth. Boyd told them he had killed Ruth with a skillet.

      After leaving Boyd at the hospital, the two men returned to Boyd’s home where

      they found Ruth’s body on the kitchen floor. They called the police. After

      Boyd was released from the hospital, he requested to speak with Lieutenant

      Ruth Stillinger of the Columbus Police Department. The interview occurred at

      the Columbus Police Department and was videotaped. Lieutenant Stillinger

      Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 2 of 15
      informed Boyd of his Miranda rights and he signed a waiver of those rights.

      During the interview, Boyd admitted he murdered his wife with a skillet.


[3]   The State charged Boyd with murder and the case proceeded to a jury trial in

      August 2006. At the time of his trial, Boyd also faced a misdemeanor battery

      charge stemming from a physical altercation with his wife in April 2005. A trial

      had been scheduled for March 2006 on the battery charge; however, it was

      postponed until after his murder trial.


[4]   At trial, the State desired to introduce evidence concerning Boyd’s April 2005

      battery allegation in his murder trial. Boyd’s counsel filed a motion in limine

      seeking to exclude all evidence concerning the battery charge, including the

      charging information and probable cause affidavit, testimony from the arresting

      officers, and a taped statement from Ruth Boyd. However, the trial court

      denied his motion in limine, concluding the evidence was relevant and highly

      probative as to Boyd’s motive. Further, the trial court found Boyd forfeited his

      right of confrontation against Ruth by making her unavailable to testify. At

      trial, Officers Eric Kapczynski and Russell Imlay testified without objection

      about Boyd’s prior arrest for battery and the court records of that battery were

      admitted without objection. During Officer Imlay’s testimony, the State offered

      into evidence a taped statement from Ruth concerning the April 2005 battery.

      Boyd’s counsel renewed his objection to the admissibility of Ruth’s taped

      statement, arguing it violated Boyd’s right to confront the witness. The trial

      court overruled counsel’s objection. Ultimately, the jury found Boyd guilty of



      Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 3 of 15
      murder and the trial court sentenced him to sixty-two years in the Indiana

      Department of Correction.


[5]   Boyd’s trial counsel also represented him on direct appeal. On direct appeal,

      Boyd raised two issues: 1) whether the trial court erred in rejecting Boyd’s

      tendered instruction on voluntary manslaughter; and 2) whether the trial court

      erred in admitting the victim’s statement to police obtained during the

      investigation of a prior incident. We affirmed Boyd’s conviction. Boyd v. State,

      No. 03A05-0609-CR-506 (Ind. Ct. App. June 20, 2007).


[6]   In September 2008, Boyd filed a verified pro se petition for post-conviction

      relief. Boyd requested a State Public Defender be appointed to represent him,

      which the post-conviction court granted. In October 2010, the State Public

      Defender withdrew her appearance after consulting with Boyd and conducting

      an appropriate investigation. Boyd took no further action until 2015. On

      September 1, 2015, the post-conviction court ordered Boyd to show cause why

      his post-conviction petition should not be dismissed. Boyd then filed a motion

      to proceed by affidavit, which the post-conviction court granted. He submitted

      his affidavit in support of his petition for post-conviction relief on November

      16, 2015. The State filed its response on December 1, 2015. On December 30,

      2015, the post-conviction court entered findings of fact and conclusions of law

      denying Boyd’s petition for post-conviction relief. Three weeks after the post-

      conviction court’s denial of his petition, Boyd filed a motion to compel his trial

      counsel to produce a copy of his client file, which the post-conviction court

      denied. Boyd now appeals.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 4 of 15
                                 Discussion and Decision
                      I. Post-Conviction Standard of Review
[7]   Post-conviction proceedings are not an opportunity for a super-appeal.

      Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839

      (2002). Rather, they create a narrow remedy for subsequent collateral

      challenges to convictions that must be based on grounds enumerated in the

      post-conviction rules. Id. If not raised on direct appeal, a claim of ineffective

      assistance of counsel is properly presented in a post-conviction proceeding. Id.

      A claim of ineffective assistance of appellate counsel is also an appropriate issue

      for post-conviction review. Id. The petitioner must establish his claims by a

      preponderance of the evidence. Ind. Post-Conviction Rule 1(5).


[8]   A petitioner who has been denied post-conviction relief faces a “rigorous

      standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      In reviewing the judgment of a post-conviction court, we consider only the

      evidence and reasonable inferences supporting the judgment. Hall v. State, 849

      N.E.2d 466, 468 (Ind. 2006). We may not reweigh the evidence or reassess the

      credibility of the witnesses. See id. at 468-69. The post-conviction court’s denial

      of post-conviction relief will be affirmed unless the evidence leads “unerringly

      and unmistakably to a decision opposite that reached by the post-conviction

      court.” McCary v. State, 761 N.E .2d 389, 391 (Ind. 2002). Only where the

      evidence is without conflict and leads to but one conclusion, and the post-

      conviction court reached the opposite conclusion, will the court’s findings or


      Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 5 of 15
       conclusions be disturbed as being contrary to law. Hall, 849 N.E .2d at 469.

       Finally, we do not defer to the post-conviction court’s legal conclusions, but do

       accept its factual findings unless they are clearly erroneous. Stevens v. State, 770

       N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003).


                     II. Ineffective Assistance of Trial Counsel
[9]    Boyd asserts the post-conviction court erred in concluding his trial counsel was

       not ineffective and offers three arguments in support of his assertion. First, he

       argues trial counsel was ineffective for failing to object to the admission of

       Ruth’s taped statement based on the United States Supreme Court’s decision in

       Giles v. California, 554 U.S. 353 (2008). Second, he contends trial counsel

       should have objected to the testimony of Officers Eric Kapczynski and Russell

       Imlay, who testified about Boyd’s prior arrest for battery. Finally, he argues

       trial counsel should have objected to the admission of court records concerning

       his battery.


[10]   To establish ineffective assistance of counsel, Boyd must show 1) his counsel’s

       performance was deficient, and 2) the lack of reasonable representation

       prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). These two

       prongs are separate and independent inquiries. Manzano v. State, 12 N.E.3d

       321, 326 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S.Ct. 2376 (2015).

       Therefore, “if it is easier to dispose of an ineffectiveness claim on one of the

       grounds instead of the other, that course should be followed.” Talley v. State,

       736 N.E.2d 766, 769 (Ind. Ct. App. 2000).


       Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 6 of 15
[11]   As for the first component of ineffective assistance of counsel—counsel’s

       performance—our supreme court has noted that “[c]ounsel is afforded

       considerable discretion in choosing strategy and tactics, and we will accord that

       decision deference. A strong presumption arises that counsel rendered

       adequate assistance and made all significant decisions in the exercise of

       reasonable professional judgment.” Lambert v. State, 743 N.E.2d 719, 730 (Ind.

       2001) (citation and footnote omitted), cert. denied, 534 U.S. 1136 (2002).


[12]   As for the second component—prejudice to the defendant—deficient

       performance of counsel is prejudicial when “there is a reasonable probability

       that, but for counsel’s unprofessional errors, the result of the proceeding would

       have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a

       probability sufficient to undermine confidence in the outcome.” Id.


                              A. Ruth Boyd’s Taped Statement
[13]   In order to prove ineffective assistance of counsel due to the failure to object, a

       defendant must prove an objection would have been sustained if made and he

       was prejudiced by the failure. Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind.

       2001), cert. denied, 535 U.S. 1019 (2002). Boyd’s first argument is that trial

       counsel was ineffective for failing to object at trial to the admission of Ruth’s

       taped statement concerning the April 2005 battery. Boyd is incorrect in

       asserting his trial counsel failed to object. Following the State’s offer of Ruth’s

       taped statement into evidence, Boyd’s counsel stated,




       Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 7 of 15
        I would like to continue to make my objection that I made in the
        Motion in Limine about this statement and Mr. Boyd’s
        unavailability to cross examine her (inaudible)…confrontational
        rights and all those issues that we raised with the Court before. I
        would like to reaffirm all of those objections at this point.


Transcript at 372. Further, Boyd argues counsel should have objected based on

Giles v. California, 554 U.S. 353 (2008). In Giles, the Supreme Court clarified

that the common-law doctrine of forfeiture by wrongdoing only applies when

the defendant procured the witness’s unavailability by conduct “designed to

prevent a witness from testifying.” Giles, 554 U.S. at 359 (emphasis in original).

Boyd argues trial counsel should have objected on the grounds he did not

murder his wife with the intent to prevent her from testifying at his murder trial;

thus, her statement should have been excluded. However, Boyd’s trial occurred

in August 2006; the Supreme Court issued its decision in Giles v. California in

June of 2008. To the extent Boyd argues trial counsel was ineffective for failing

to object based upon a case that did not exist at the time of trial, we reject that

argument. See Sweeney v. State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008) (noting

counsel will not be deemed ineffective for not anticipating or initiating changes

in the law), trans. denied, cert. denied, 555 U.S. 1003.




Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 8 of 15
                          B. Police Testimony and Court Records
[14]   Next, Boyd argues trial counsel was ineffective for failing to object to the

       admission of police testimony and court records.1 Again, Boyd must first prove

       any objection by his trial counsel would have been sustained, and second, that

       he was prejudiced by the failure to object. Wrinkles, 749 N.E.2d at 1192.

       Prejudice is demonstrated by showing a reasonable probability (i.e., a

       probability sufficient to undermine confidence in the outcome) the result of the

       proceeding would have been different. Reed v. State, 866 N.E.2d 767, 769 (Ind.

       2007).


[15]   Even if we assume any objection by trial counsel would have been sustained,

       Boyd has failed to show any prejudice. The court records and police testimony

       both relate to his battery of Ruth in April 2005. Even without the court records

       and testimony, the State produced overwhelming evidence he murdered Ruth,

       including his own confession. See Dickens v. State, 997 N.E.2d 56, 66-67 (Ind.

       Ct. App. 2013) (finding no prejudice where State produced overwhelming

       evidence of defendant’s guilt), trans. denied. At trial, Octavius Nolan and Brian

       Christian, the men who drove Boyd to the hospital, both testified Boyd

       admitted to them he killed his wife with a skillet. Further, the State introduced

       into evidence a taped confession from Boyd. In sum, Boyd has not




       1
        Boyd’s brief does not specify what “court records” were admitted. We believe Boyd refers to Exhibit 41.
       Exhibit 41 contains certified records of Boyd’s battery charge including the charging information, various
       orders and motions, and the Chronological Case Summary.

       Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016         Page 9 of 15
       demonstrated a reasonable probability the result of the proceeding would have

       been different without the court records and officer testimony. Thus, we

       conclude Boyd cannot establish he suffered ineffective assistance of trial

       counsel. See Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (providing a

       claim of ineffective assistance of counsel can be disposed of on either Strickland

       prong).


               III. Ineffective Assistance of Appellate Counsel
[16]   Boyd also contends his appellate counsel rendered ineffective assistance on

       direct appeal. The standard for ineffective assistance of appellate counsel is the

       same standard as for trial counsel. Garrett v. State, 992 N.E.2d 710, 719 (Ind.

       2013). Boyd must show appellate counsel was deficient in his performance and

       the deficiency resulted in prejudice. Id. Appellate counsel is not ineffective for

       failing to raise issues that are unlikely to succeed. Singleton v. State, 889 N.E.2d

       35, 41 (Ind. Ct. App. 2008).


[17]   Boyd contends he received ineffective assistance because appellate counsel

       failed to challenge the admission of his taped confession into evidence.

       Specifically, he argues during the interview he made two unequivocal and

       unambiguous requests for an attorney during a custodial interrogation,

       requiring questioning to cease. See Edwards v. Arizona, 451 U.S. 477, 484-85

       (1981) (holding law enforcement officers must immediately cease questioning a

       suspect who has clearly asserted his right to have counsel present during

       custodial interrogation). In the interview, Boyd stated, “Can I be saying this


       Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 10 of 15
       without a lawyer?” and “I don’t know if I should be saying stuff without a

       lawyer?” Tr. at 318, 327.


[18]           When evaluating a claimed deficiency in appellate representation
               due to an omission of an issue, a post-conviction court is properly
               a post-conviction court is properly deferential to appellate
               counsel’s choice of issues for appeal unless such a decision was
               unquestionably unreasonable. Such deference is appropriate
               because the selection of issues for direct appeal is one of the most
               important strategic decisions of appellate counsel. Appellate
               counsel’s performance, as to the selection and presentation of
               issues, will thus be presumed adequate unless found
               unquestionably unreasonable considering the information
               available in the trial record or otherwise known to the appellate
               counsel. In crafting an appeal, counsel must choose those issues
               which appear from the face of the record to be most availing.
               Experienced advocates since time beyond memory have
               emphasized the importance of winnowing out weaker arguments
               on appeal and focusing on one central issue if possible, or at most
               on a few key issues. Thus, to prevail in such claim in post-
               conviction proceedings, it is not enough to show that appellate
               counsel did not raise some potential issue; instead, the defendant
               must show that the issue was one which a reasonable attorney
               would have thought availing.


       Hampton v. State, 961 N.E.2d 480, 491-92 (Ind. 2012) (citations and internal

       quotation marks omitted). Applying this standard to the present case, we

       cannot say appellate counsel’s failure to raise this issue was “unquestionably

       unreasonable.” Id. at 491.


[19]   When an accused has been advised of his rights and validly waives them, but

       later invokes the right to counsel, the police must cease questioning until an


       Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 11 of 15
       attorney has been made available or until the accused initiates further

       conversation with the police. Davis v. United States, 512 U.S. 452, 458 (1994)

       (citing Edwards, 451 U.S. at 484-85). We determine whether an accused has

       asserted the right to counsel by an objective standard. Id. at 458-59. Invocation

       of the right to counsel requires, at a minimum, some statement that can be

       reasonably construed as an expression of a desire for the assistance of an

       attorney during custodial interrogation. Sauerheber v. State, 698 N.E.2d 796, 802

       (Ind. 1998). “The level of clarity required to meet the [reasonableness] standard

       must be that a ‘reasonable police officer in the circumstances would understand

       the statement to be a request for an attorney.’” Goodner v. State, 714 N.E.2d

       638, 641 (Ind. 1999) (quoting Davis, 512 U.S. at 459). In Davis, the defendant’s

       statement “[m]aybe I should talk to a lawyer” was held not to be a request for

       counsel. Davis, 512 U.S. at 462. Consequently, police officers had no duty to

       stop questioning the defendant, and any statements he subsequently made were

       admissible. Id.


[20]   In Taylor v. State, 689 N.E.2d 699 (Ind. 1997), our supreme court dealt with a

       similar issue. There, the defendant stated “I guess I really want a lawyer, but, I

       mean, I’ve never done this before so I don’t know.” Id. at 703. The court held

       “[a] reasonable police officer in the circumstances would not understand that

       [the defendant] was unambiguously asserting his right to have counsel present.”

       Id. The court further stated,


               It is not enough that the defendant might be invoking his rights;
               the request must be unambiguous. . . . Davis established as a

       Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 12 of 15
               matter of Fifth Amendment law that police have no duty to cease
               questioning when an equivocal request for counsel is made. Nor
               are they required to ask clarifying questions to determine whether
               the suspect actually wants a lawyer.


       Id. Here, Boyd twice mentioned attorneys, asking, “Can I be saying this

       without a lawyer?” and “I don’t know if I should be saying stuff without a

       lawyer?” Tr. at 318, 327. Neither of these statements amounts to an

       unequivocal and unambiguous request for counsel, as they are both questions.

       Thus, Boyd’s statements do not rise to the level of clarity such that a reasonable

       officer would understand them to be requests for an attorney. An appellate

       challenge to the admission of his confession would not likely have succeeded.


[21]   As Boyd has not demonstrated appellate counsel’s failure to raise this issue on

       direct appeal was unquestionably unreasonable, Boyd has failed to meet his

       burden of establishing grounds for relief on this claim.


                                      IV. Motion to Compel
[22]   Boyd’s final argument is the post-conviction court abused its discretion in

       denying his motion to compel trial counsel to produce his client file. Post-

       conviction proceedings are governed by the same rules “applicable in civil

       proceedings including pre-trial and discovery procedures.” P-C.R. 1(5).

       Further, “post-conviction courts are accorded broad discretion in ruling on

       discovery matters and we will affirm their determinations absent a showing of

       clear error and resulting prejudice.” Wilkes v. State, 984 N.E.2d 1236, 1251

       (Ind. 2013).

       Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 13 of 15
[23]   On December 29, 2015, Boyd requested his client file from his trial attorney.

       On January 12, 2016, Boyd received a letter from his trial counsel declining to

       reproduce the file and reminding him he received a copy of his client file at the

       time of representation. Boyd then filed his motion to compel on January 21,

       2016, three weeks after the post-conviction court denied his petition for post-

       conviction relief. The post-conviction court denied his motion to compel

       finding the case was completed and trial counsel had previously provided him

       with his client file. Boyd asserts his trial counsel failed to provide evidence

       showing he sent Boyd his file. However, it is Boyd’s burden to establish his

       grounds for relief by a preponderance of the evidence, which he has not done.

       P-C.R. 1(5).


[24]   In addition, Boyd has not shown prejudice from the denial of his motion. He

       asserts he needed his client file to amend his petition for post-conviction relief.

       Further, he argues pursuant to Indiana Post-Conviction Rule 1(4)(c), the post-

       conviction court was required to grant him leave to amend his petition. The

       rule states, in relevant part, “At any time prior to entry of judgment the court

       may grant leave to withdraw the petition.” P-C.R. 1(4)(c). At the time Boyd

       filed his motion to compel, the post-conviction court had already entered

       judgment. Moreover, the record does not reveal Boyd ever filed a motion to

       amend his petition for post-conviction relief.


[25]   Accordingly, we cannot conclude the post-conviction court abused its discretion

       in denying his motion to compel or that Boyd was prejudiced by the denial.



       Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 14 of 15
                                               Conclusion
[26]   The post-conviction court did not err in denying Boyd’s petition for post-

       conviction relief. Boyd has not demonstrated he received ineffective assistance

       of trial or appellate counsel, nor has he shown the post-conviction court abused

       its discretion in denying his motion to compel. Accordingly, we affirm the post-

       conviction court’s denial of post-conviction relief.


[27]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1602-PC-375 | September 28, 2016   Page 15 of 15
