MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
this Memorandum Decision shall not be                               Sep 14 2016, 9:25 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Kathleen Clearly                                         J.T. Whitehead
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lamar Crawford,                                          September 14, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1603-PC-573
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Respondent                                      Judge
                                                         The Honorable Stanley E. Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-0904-PC-39093



Crone, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016     Page 1 of 18
                                             Case Summary
[1]   A jury convicted Lamar Crawford of murder and found him to be a habitual

      offender. The trial court sentenced him to an aggregate term of eighty-five

      years, and his conviction was affirmed on direct appeal. Crawford filed a

      petition for postconviction relief (“PCR”), claiming ineffective assistance of

      counsel, and now appeals the postconviction court’s denial of his petition.

      Finding that he has failed to meet his burden of establishing ineffective

      assistance of counsel, we affirm.


                                 Facts and Procedural History
[2]   The relevant facts as summarized by another panel of this Court in Crawford’s

      direct appeal read in pertinent part as follows:

              During April of 2009, Gernell Jackson (Jackson) lived on
              Medford Avenue in Indianapolis, Indiana. Jackson had a sister
              named Dorothy Crawford (Dorothy) and two nephews,
              Crawford and his brother, Naamonn Crawford (Naamonn).
              Naamonn was close to his uncle and visited him at his home a
              few days a week. Sometimes during these visits, Crawford also
              joined them. While Crawford visited his uncle periodically, they
              did not always get along. On two separate occasions, Jackson
              reported that his car had been stolen by Crawford. Each time,
              Jackson dropped the charges when he recovered his car.
              Crawford’s cousin, Donald Hurd (Hurd), last saw Crawford at
              Jackson’s house sometime between April 5 and 7, 2009. When
              Hurd last saw Crawford, he did not have any injuries to his face
              or hands.


              On April 9, 2009, Naamonn visited Jackson and discovered him
              dead on the floor of his house, covered with a blanket. Naamonn

      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 2 of 18
        immediately called 9-1-1 and attempted to perform CPR. When
        ambulance and police personnel arrived shortly after Naamonn’s
        call, they pronounced Jackson dead on arrival as a result of forty
        separate stab and cut wounds all over his body. After an
        investigation of the scene, Indianapolis police officers determined
        that Jackson’s car, a tan Chevy Impala, was missing, as well as
        Jackson’s electronic JVC receiver. Detective John Breedlove also
        discovered blood stains in the bathroom and a box of Band-Aids
        in a back bedroom. The peel-off wrappers of the Band-Aids had
        been discarded on the dresser, and there was dried blood near the
        Band-Aid box.


        That same day, Crawford called a former girlfriend, Kurina
        McCormick (McCormick), and told her he was coming to visit
        her. When he arrived, she saw that he was driving a tan Chevy
        Impala. McCormick asked Crawford where he had gotten the
        car, and he told her that “he bought it.” McCormick also noticed
        that Crawford had bandages on his hand and fingers and
        scratches on his face.


        Later that day, Crawford attempted to draw money from
        Jackson’s bank account using Jackson’s debit card. When that
        failed, he sold Jackson’s electronic JVC receiver to a pawn shop
        and attempted to cash one of Jackson’s checks at another bank.
        The bank teller determined that the signature on the check did
        not match Jackson’s and refused to cash it. Afterwards, Crawford
        went to an Applebee’s restaurant and a strip club. Naamonn
        attempted to contact Crawford three or four times that night after
        he discovered Jackson, but Crawford did not answer his phone.


        The next day, April 10, 2009, Dorothy found McCormick’s
        contact information and attempted to reach Crawford at
        McCormick’s house. McCormick answered the phone, but hung
        up when Crawford told her that he did not want to talk to his
        mother. Subsequently, Dorothy called the police, and the police
        went to McCormick’s apartment and apprehended Crawford.
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 3 of 18
        During the investigation, the police discovered that Crawford’s
        DNA matched blood stains on the drawers in the northwest
        bedroom of Jackson’s house; on a washcloth recovered from the
        bathroom floor; on the northwest bedroom floor; on the
        bathroom sink; on a napkin recovered from the bathroom sink;
        on the driver’s seat, dashboard, and steering wheel of Jackson’s
        car; on a lighter; and on some coins. The police also discovered
        DNA from three different people—Crawford, Jackson, and an
        unknown person—on a wooden knife handle left at the scene.


        On April 15, 2009, the State filed an Information charging
        Crawford with Count I, murder, a felony, I.C. § 35-42-1-1, and
        then added Count II, habitual offender, I.C. § 35-50-2-8, on June
        4, 2009.

        ….


        [F]rom May 11-13, 2010, a three-day jury trial was held. At trial,
        Crawford alleged that a neighbor named Michael Craig (Craig)
        was responsible for Jackson’s murder. According to Crawford,
        he was visiting his uncle when a man wearing black clothes and a
        ski mask came into his uncle’s house through the door. That
        man attacked Jackson and injured Crawford as Crawford tried to
        defend his uncle. Before leaving, the man warned Crawford that
        he would kill him if he did anything and that he knew where
        Crawford’s family lived. Crawford did not see the man’s face,
        but he argued that the man was Craig, because the police had
        found multiple threatening messages from Craig on Jackson’s
        voicemail during their investigation. In further support of his
        version of events, Crawford noted the unknown DNA that the
        police found on the knife handle.


        At the close of evidence, the jury found Crawford guilty as
        charged. Then, on May 27, 2010, the trial court sentenced
        Crawford to an aggregate sentence of 85 years. In its order of
        judgment of conviction, the trial court noted as aggravating
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 4 of 18
              circumstances: (1) Crawford’s prior criminal history, both as a
              juvenile and as an adult; (2) repeat offenses; (3) the nature and
              circumstances of the crime committed; and (4) Crawford’s
              conduct after the offense.


      Crawford v. State, 946 N.E.2d 1221, 1223-25 (Ind. Ct. App. 2011), trans. granted.


[3]   Crawford appealed his conviction, which was affirmed by another panel of this

      Court. He sought transfer to the Indiana Supreme Court, challenging only the

      trial court’s grant of the State’s motion to quash certain nonparty subpoenas. 1

      Finding that Crawford had not made his requests for subpoenas with sufficient

      particularity, our supreme court affirmed. Crawford v. State, 948 N.E.2d 1165,

      1169 (Ind. 2011).


[4]   In March 2012, Crawford filed a pro se PCR petition. In August 2014, by

      counsel, he filed an amended petition, claiming ineffective assistance of counsel

      based on trial counsel’s (“Counsel’s”) alleged “failure to investigate and present

      evidence of intellectual and development disability” and “failure to object to

      disparaging prosecutorial arguments.” Appellant’s App. 84-85. The

      postconviction court held an evidentiary hearing and ordered the parties to

      submit proposed findings of fact and conclusions of law. In February 2016, the

      postconviction court issued its findings of fact and conclusions of law in an

      order denying Crawford’s petition.




      1
        In its opinion on transfer, our supreme court addressed only the issue of whether the trial court erred in
      quashing certain subpoenas, summarily affirming this Court on the sufficiency of evidence. Crawford v. State,
      948 N.E.2d 1165, 1169 (Ind. 2011).

      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016         Page 5 of 18
[5]   Crawford now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision
[6]   Crawford contends that the postconviction court erred in denying his PCR

      petition. The petitioner in a postconviction proceeding “bears the burden of

      establishing grounds for relief by a preponderance of the evidence.” Ind.

      Postconviction Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013).

      When issuing its decision to grant or deny relief, the postconviction court must

      make findings of fact and conclusions of law. Ind. Postconviction Rule 1(6). A

      petitioner who appeals the denial of his postconviction petition faces a rigorous

      standard of review. Massey v. State, 955 N.E.2d 247, 253 (Ind. 2011). In

      conducting our review, we neither reweigh evidence nor judge witness

      credibility; rather, we consider only the evidence and reasonable inferences

      most favorable to the judgment. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct.

      App. 2013). “A post-conviction court’s findings and judgment will be reversed

      only upon a showing of clear error—that which leaves us with a definite and

      firm conviction that a mistake has been made.” Passwater, 989 N.E.2d at 770

      (citation and quotation marks omitted). In other words, if a postconviction

      petitioner was denied relief in the proceedings below, he must show that the

      evidence as a whole leads unerringly and unmistakably to a conclusion opposite

      the one reached by the postconviction court. Massey, 955 N.E.2d at 253.

      Postconviction relief does not offer the petitioner a super appeal; rather,

      subsequent collateral challenges must be based on grounds enumerated in the



      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 6 of 18
      postconviction rules. McKnight, 1 N.E.3d at 199. These rules limit the scope of

      relief to issues unknown or unavailable to the petitioner on direct appeal. Id.


[7]   Crawford maintains that he was denied his constitutional right to effective

      assistance of trial counsel. To prevail on an ineffective assistance claim,

      Crawford must satisfy two components: he must demonstrate both deficient

      performance and prejudice resulting from it. Strickland v. Washington, 466 U.S.

      668, 687 (1984). Deficient performance is “representation [that] fell below an

      objective standard of reasonableness, [where] counsel made errors so serious

      that counsel was not functioning as ‘counsel’ guaranteed by the Sixth

      Amendment.” Passwater, 989 N.E.2d at 770. We assess counsel’s performance

      based on facts that are known at the time and not through hindsight.

      Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App. 2006), trans. denied.

      Evidence of isolated poor strategy, inexperience, or bad tactics will not support

      an ineffective assistance claim; instead, we evaluate counsel’s performance as a

      whole. Flanders v. State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied

      (2012). “[C]ounsel’s performance is presumed effective, and a defendant must

      offer strong and convincing evidence to overcome this presumption.” Ritchie v.

      State, 875 N.E.2d 706, 714 (Ind. 2007). “Strickland does not guarantee perfect

      representation, only a reasonably competent attorney.” Hinesley, 999 N.E.2d at

      983.


[8]   In his amended PCR petition, Crawford raised several allegations of deficient

      performance by Counsel. In this appeal, the allegations against Counsel are

      limited to (1) failure to properly investigate and present evidence regarding

      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 7 of 18
       Crawford’s intellectual and developmental disabilities; and (2) failure to object

       to disparaging statements during the State’s closing arguments. “[C]ounsel has

       a duty to make reasonable investigations or to make a reasonable decision that

       makes particular investigations unnecessary.” Strickland, 466 U.S. at 691.

       Because Strickland’s prejudice prong necessitates a showing of a reasonable

       probability that counsel’s deficient performance affected the outcome of the

       trial, establishing ineffective assistance of counsel based on counsel’s failure to

       investigate “requires going beyond the trial record to show what investigation,

       if undertaken, would have produced.” McKnight, 1 N.E.3d at 201.


[9]    Here, Counsel had over a decade of criminal defense experience in major felony

       cases. She was familiar with Crawford and petitioned the trial court for a

       psychiatric evaluation as well as a competency and sanity evaluation. The

       former was performed by Dr. Phillip Coons, who found in pertinent part with

       respect to Crawford’s “Mental Status Examination,”

               He was oriented to person, place, and time. He recalled three out
               of three objects at five minutes. He knew the current president
               and past president but not the governor or vice president. He
               could not do simple calculations. His intelligence appeared
               borderline by the use of vocabulary. Insight and judgment were
               good.


       Petitioner’s Ex. 6.


[10]   The latter was performed by Dr. George F. Parker, associate professor of

       clinical psychiatry at the Indiana University School of Medicine. Dr. Parker

       found in pertinent part,
       Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 8 of 18
        The defendant’s thought process was concrete and organized
        throughout the interview. He answered questions appropriately.
        He denied ever experiencing auditory or visual hallucinations.

        On cognitive evaluation, Mr. Crawford was oriented to person,
        place and time. His short-term memory was tested using four-
        word recall; he registered all four words immediately and recalled
        two of the words after a delay of a few minutes. He also recalled
        two new words, though they were related to the original words.
        The defendant’s insight into his current legal situation was
        estimated to be adequate. His insight into his clinical status was
        estimated to be fair. His intelligence was clinically estimated to
        be in the range of normal.

        ….

        The defendant reported a history of treatment with antipsychotic
        medication, but said this medication was prescribed for
        depression and to keep him ‘relaxed and calm” while he was in
        23-hour lockdown for two years. Based on his report, it was
        difficult to determine if Mr. Crawford suffered from a true
        depression, from symptoms of psychosis, or both, while in
        administrative segregation. Mr. Crawford denied any history of
        experiencing auditory or visual hallucinations, did not appear to
        have a history of significant delusional beliefs, and presented
        with a fairly organized thought process during the clinical
        interview. Despite his report that his mother had wanted him to
        be evaluated because “people were saying I was crazy,” there
        was little solid evidence to merit a diagnosis of a chronic
        psychotic disorder.

        .…

        Mr. Crawford said he had met with his attorney, but did not
        always understand what she told him, because of “some words
        she uses.” He thought his attorney would be able to explain
        these words to him, if he asked her to do so. Based on the course

Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 9 of 18
        of the clinical interview, during which the defendant
        demonstrated a concrete and organized thought process and
        answered questions appropriately, he was estimated to have an
        adequate ability to work with his attorney, to disclose pertinent
        facts to his attorney, to testify relevantly and to comprehend legal
        advice or instruction.

        Mr. Crawford understood how to appropriately challenge
        witnesses, as he was aware that witnesses were meant to “tell
        what they saw” and to “tell the truth” when in court. He said he
        would “tell my lawyer” if he thought a witness was not telling the
        truth. There was no evidence of any self-defeating attitude
        during the clinical interview. The risk of unmanageable behavior
        by the defendant in the courtroom was estimated to be low. His
        ability to tolerate the stress of a trial was estimated to be
        adequate.


        .…

        OPINION: It is my opinion, with reasonable medical certainty,
        that the defendant does not have a mental disorder.

        It is my opinion, with reasonable medical certainty, that the
        defendant is currently capable of understanding the nature and
        objectives of the legal proceedings against him.

        It is my opinion, with reasonable medical certainty, that the
        defendant was not mentally ill at the time of the alleged offense.
        It is further my opinion, with reasonable medical certainty, that
        the defendant did appreciate the wrongfulness of his actions at
        the time of the alleged offense.


Petitioner’s Ex. 7.




Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 10 of 18
[11]   Crawford essentially argues that the doctors’ reports were not sufficiently in-

       depth to show the extent of his intellectual deficiency and that Counsel

       therefore should have obtained and introduced his school records. Those

       records, dated 1995 and 1996, showed the thirteen/fourteen-year-old Crawford

       to have a “mild mental handicap,” a verbal IQ of 62, a performance IQ of 77,

       and a full-scale IQ of 68. Petitioner’s Ex. 5. The school psychologist

       summarized his findings in pertinent part,

               [Crawford] scored within the Mentally Deficient range of
               intelligence. There was significant difference between his verbal
               and performance intelligence. He scored within the Mentally
               Deficient range in his ability to determine general word
               knowledge and verbal concept formation.

               [Crawford’s] achievement tests indicate that his achievement
               ability is within the mentally deficient range of achievement ….
               [H]e is mentally deficient in his numeral ability, reading ability
               and spelling ability. [Crawford] has problems with
               multiplication, division and fractions. [Crawford’s] academic
               achievement in reading, spelling and math is commensurate in
               relation to intellectual level.


       Id.


[12]   With respect to Crawford’s intellectual deficiency, Counsel testified at the PCR

       hearing in pertinent part,

               A. I[t] … was noted in those high school reports that his IQ was
               a lot lower than I thought it was.
               Now, the doctors had already said he was borderline. And I
               think he had told me that he was in special ed[ucation] and had
               not finished high school. But I don’t think I realized to what
       Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 11 of 18
        extent the … I did not realize.
        And speaking with him, it didn’t strike me either. I didn’t realize his
        scores were so low.

        Q. Okay. Do you think that his intellectual disability would
        have been a part of the defense guilt phase?
        A. Guilt phase, no. He had given a statement to the detective and had
        actually, in my mind, handled himself very well.
        And my biggest fear during the case was that the State would not
        introduce his statement because I couldn’t have had they not.
        And when they did, and I—and it—his explanation at the time was
        the best. And there was really no place in there to argue that somehow he
        was not behaving normally or—because of an intellectual deficiency.
        It was more that he experienced a traumatic event and he was
        spinning out of control. And that’s what he told the detective.
        And I—I thought that made the most sense.

        Q. Regarding sentencing, do you think this information should
        have been revealed and put forth to the Court?

        A. I think it might have helped to emphasize—it was—again, it
        was—it was noted in his PSI that he was in special classes, but it
        did not note that he had a low IQ.
        The doctors—one of the doctors, at least, I recall said that he was
        borderline. But, again, the numbers were not here. It might have
        helped to illustrate it.
        I don’t know what the Court would have done. I’ll defer to the
        Court on whether or not it might have made a difference for him.

        Q. Did—and are you currently aware of U.S. jurisprudence
        which—U.S. Supreme Court jurisprudence cases where
        intellectual disability does relate to sentencing?




Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 12 of 18
                A. Oh, yes. It is a mitigator. 2 But it tends to be a better mitigator
                when it—it has a nexus between the defense and the actions. And … I
                did not think it played into his behavior and how we were trying to
                present his behavior to the jury.


       PCR Tr. at 20-23 (emphases added).


[13]   As a whole, the evidence presented at the PCR hearing reveals that at the time

       of trial, the doctors’ reports had shown Crawford to be lucid and organized in

       his thoughts, yet borderline deficient intellectually. Although Crawford’s

       school records, and specifically his IQ scores, might have shed additional light

       on the extent of his intellectual deficiency, Counsel’s testimony indicates that

       the scores would not have played a role in the determination of guilt due to the

       nature of his defense (identity—that he was not the perpetrator) and that any

       mitigating potential concerning his sentence would have been buffered by the

       absence of a nexus between his intellectual deficiency, his actions, and his

       defense. We also note the overwhelming aggravating circumstances in the form

       of Crawford’s extensive criminal record, the heinous and violent nature of his

       offense, and the rapidity with which he acted after murdering his uncle, in

       stealing his uncle’s car, pawning his uncle’s stereo receiver, and attempting to

       cash checks and withdraw funds from his uncle’s bank account. Simply put,

       Crawford has failed to demonstrate that but for Counsel’s failure to investigate

       and introduce his academic records, there is a reasonable probability that the



       2
         McCarty v. State, 802 N.E.2d 959, 967-68 (Ind. Ct. App. 2004) (citing Atkins v. Virginia, 536 U.S. 304, 306
       (2002)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016          Page 13 of 18
       result of the proceedings would have been different. As such, he has failed to

       meet his burden of establishing prejudice.


[14]   Crawford also submits that Counsel was ineffective in failing to object to the

       prosecutor’s allegedly inflammatory statements during closing argument. To

       prevail on a claim of ineffective assistance for failing to object, the defendant

       must show that an objection would have been sustained if made. Overstreet v.

       State, 877 N.E.2d 144, 155 (Ind. 2007), cert. denied (2008). With respect to a

       prosecutor’s assault on a defendant’s veracity, we note that “[a] prosecutor does

       not necessarily engage in misconduct by characterizing a defendant as a liar.”

       Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). Rather, “a prosecutor may

       comment on the credibility of the witnesses as long as the assertions are based

       on reasons which arise from the evidence.” Id. (citation omitted). Moreover,

       “[p]rosecutors are entitled to respond to allegations and inferences raised by the

       defense even if the prosecutor’s response would otherwise be objectionable.”

       Id. In other words, a prosecutor’s statements concerning the defendant’s

       veracity must be placed in context with the evidence presented and arguments

       raised during the trial. For example, even if an objection likely would have

       been sustained if made, trial counsel may have declined to object as a strategy

       to avoid bringing unnecessary attention to a certain matter. Id.


[15]   Here, the challenged statements center around two general themes: (1)

       challenges to Crawford’s veracity, see, e.g., Tr. at 831-32, 838 (referencing

       Crawford’s version of events as “ridiculous” and an “impossible story” and

       directing jurors to “look at his lies,” and “look at some of his other lies”); and

       Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 14 of 18
       (2) disparagement of the defense, see, e.g., id. at 840-42 (referencing defense’s

       strategy as “Throw something on the wall and hope it sticks,” “pointing

       fingers,” and “hiding the ball” and stating, “We provided them with their

       defense.”).


[16]   With respect to the challenges to Crawford’s veracity, we note that the PCR

       transcript is devoid of testimony concerning the prosecutor’s references to

       Crawford’s “lies” or his “ridiculous” and “impossible stories.” See PCR Tr. at

       16 (when asked whether she had concerns about arguments made during the

       State’s closing argument, Counsel pointed only to “one argument in particular

       that just struck me at the time as being so wrong,” which was the prosecutor’s

       statement about having provided Crawford with his defense). Because

       Crawford failed to raise Counsel’s failure to object to the prosecutor’s

       accusations of lying during the PCR proceedings below, he has waived them for

       consideration on appeal. See Koons v. State, 771 N.E.2d 685, 691-92 (Ind. Ct.

       App. 2002) (petitioner who fails to raise issue before PCR court below waives

       argument on appeal), trans. denied. Even so, we note that Crawford’s defense

       was based on his assertion that he was not the perpetrator but instead was

       attempting to intervene on behalf of the stabbing victim. As such, his credibility

       was the linchpin of his defense, and while we believe the better practice is for

       attorneys to avoid such denigrating terms as “liar” and “lying” during closing

       argument, Crawford placed credibility in issue, and we do not believe that the

       absence of an objection to the State’s use of the terms amounted to deficient

       performance by Counsel.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 15 of 18
[17]   As previously noted, the evidence adduced at the PCR hearing focused almost

       entirely on one specific comment by the prosecutor, “We provided them with

       their defense.” Tr. at 841. Counsel testified in pertinent part with respect to

       this statement:

                A. There was one argument in particular that just struck me at
                   the time as being so wrong, but I did not object. And it took me
                   honestly—embarrassment, but it took me probably a year or two or
                   more to break it down and figure out what was so wrong about the
                   comments that were made.

                    ….

                    What was stated by the State was—now, this was in regards
                    to the—the telephone calls on the [victim’s] answering
                    machine and the information about Michael Craig that came
                    in way late in the case.
                    And the statement was, [w]e provided them with their
                    defense.
                    And what was so wrong about that statement was Brady 3
                    requires that the State turn over potentially exculpatory
                    evidence. That is the State’s responsibility. But it didn’t strike
                    me at the time.
                    It is true that they gave us information that became a defense. But
                    for the State to turn it around and flip it as if they had given us
                    a gift or they—they had been gracious when it is absolutely
                    constitutionally required, and certainly after they had delayed,
                    they had no excuse for that, for them to take that set of facts
                    and make it seem as though we hadn’t done any work on the



       3
          The Brady rule requires the State to disclose material exculpatory evidence to the defendant. See Brady v.
       Maryland, 373 U.S. 83, 87 (1963) (holding, “the suppression by the prosecution of evidence favorable to an
       accused upon request violates due process where the evidence is material either to guilt or to punishment,
       irrespective of the good faith or bad faith of the prosecution.”).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016          Page 16 of 18
                   case, it belittled the defense.
                   … [I]t took me, again, I apologize, years later to break this all down
                   mentally.
                   ….
                   I did not make an objection.

                   Q. Do you feel you should have?

                   A. I think if I had been a smarter lawyer, I should have,
                   absolutely. If I could have articulated and—what I can now.
                   But I was stunned. I felt it gutted our case. I felt it gutted our
                   defense. I was sick when I heard those comments.
                   But I could not break it down and really analyze to what it—to
                   how—how pervasive and penetrating in a negative, devastating way
                   those comments were to the entire process of gathering evidence and
                   turning it over as contemplated by Brady.


       PCR Tr. at 16-20 (emphases added).

[18]   As the PCR transcript shows, the challenged statement was factually accurate,

       that is, that Crawford’s defense did come from the voicemail evidence that the

       State (albeit belatedly) provided to the defense. Counsel testified on cross-

       examination that she received the evidence seven months into the process and

       that, as a result, it gave her “six months with the information to play catch-up

       on developing that theory of the case. So it basically cut the time that I usually

       use to prepare a murder trial.” Id. at 27. Nevertheless, she went on to testify,

       “If I had needed a continuance, I would have asked for one.” Id. at 28.


[19]   Counsel’s failure to object to the prosecutor’s comment did not amount to

       ineffective assistance. First, Counsel admitted that it took her over a year to

       break down the comment and assess what was wrong with it. Even then, she

       Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 17 of 18
       concluded that the comment was “pervasive,” “penetrating,” and “devastating”

       to the entire process of gathering evidence and turning it over to the defense.

       Id. at 20. If anything, the State’s action in withholding the voicemail evidence

       was devastating to evidence gathering. Notwithstanding, the State committed

       the Brady violation six months before trial, and Counsel chose not to file a

       motion for continuance. Counsel was personally offended at the prosecutor’s

       comment during closing argument yet could not pinpoint why. As such, it is

       unlikely that she could have articulated a basis for her objection, and it likely

       would have been denied. The jury was very likely unaffected by the statement,

       as the basis for its objectionability was unclear even to trained counsel and as

       the physical evidence implicating Crawford was overwhelming. We conclude

       that Crawford has failed to establish any prejudice stemming from Counsel’s

       failure to object to the prosecutor’s comment. As a result, he has failed to meet

       his burden of establishing ineffective assistance of counsel. Accordingly, we

       affirm.


[20]   Affirmed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-573 | September 14, 2016   Page 18 of 18
