MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            Sep 29 2015, 8:40 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
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
James T. Acklin                                          Cynthia L. Ploughe
Chief Deputy Public Defender                             Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jerell Owens,                                            September 29, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1501-PC-60
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff                                       Jr., Judge
                                                         Trial Court Cause No.
                                                         48D03-0909-PC-295



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015   Page 1 of 13
                                          Case Summary
[1]   Jerell Owens was charged with murder and robbery for killing a man after

      losing money to him in a dice game. Owens’s defense theory at trial was that

      Perry Thompson was the shooter. Owens was convicted; he later sought post-

      conviction relief alleging that his trial counsel was ineffective for referencing

      Thompson’s lack of criminal history, which undermined Owens’s defense that

      Thompson was the shooter. Because trial counsel’s strategy was to prove that

      police coerced Thompson into implicating Owens as the shooter, and the fact

      that Thompson did not have a criminal history supported this theory, we

      conclude that trial counsel’s performance was not deficient. We therefore

      affirm the post-conviction court.



                            Facts and Procedural History
[2]   Owens was convicted of murder and robbery for the 2007 shooting of Damian

      Hopkins following a dice game in Anderson, Indiana. The underlying facts, as

      taken from this Court’s opinion on direct appeal, are as follows:

              On February 4, 2007, Owens, Damian Hopkins (Hopkins),
              Richard Wilson (Wilson), and Perry Thompson (Thompson)
              were gambling, smoking marijuana, and drinking beer in
              Anderson, Indiana. Hopkins won several hundred dollars from
              Owens in a dice game. While on the phone with Hopkins’
              brother, Owens confirmed that he was losing money to Hopkins
              and said that he “would get it back later on.”




      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015   Page 2 of 13
              At some point that night, Owens obtained a key for Janice
              Jordan’s apartment, and the four men went there. While
              Hopkins was sitting and talking to his sister on the phone, Owens
              said to him, “[G]ive me back my mother f****** money n*****.”
              Owens then shot Hopkins in the head. Hopkins stood up holding
              the back of his head and asked, “[W]hy?” Hopkins then fell to
              the floor and continued to ask, “[W]hy cuz? Why?” Owens
              stood over Hopkins, asked him why he was still talking, and shot
              him in the head a second time. Owens then took money from
              Hopkins’ pocket and told Wilson and Thompson to move the
              body. Wilson and Thompson dr[agged] Hopkins’ body outside.
              As Owens, Wilson, and Thompson left the apartment, Owens
              kicked the door twice “to make it look like somebody broke in.”
              Hopkins died as a result of the shooting.


      Owens v. State, 897 N.E.2d 537, 538 (Ind. Ct. App. 2008) (transcript cites

      omitted).

[3]   The next day, police interviewed Thompson first. Thompson initially told

      police that when he, Owens, and Wilson left the apartment, Hopkins was alive.

      However, after Thompson’s mother joined the interview and told her son to tell

      the truth and police aggressively interrogated Thompson and suggested several

      times that Owens was the one who shot Hopkins, Thompson told police that

      Owens shot Hopkins. Thompson was arrested. At Owens’s trial, Thompson—

      who was facing only a charge for Class C felony assisting a criminal—admitted

      that he and Wilson moved Hopkins’s body.

[4]   Police then interviewed Wilson and Owens. Initially Wilson told police that

      Thompson was the shooter. According to Wilson, Owens told him to blame

      Thompson because then they would both “walk[] out the police station.” Tr. p.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015   Page 3 of 13
      800. Wilson was arrested for murder. The next day, Wilson asked to speak

      with police again; this time, he said Owens was the shooter. Then, in March

      2007, Wilson spoke with the press and claimed that he had lied before when he

      told police that Owens was the shooter. Wilson said he lied because that is

      what police wanted him to say. At Owens’s trial, Wilson—who was also facing

      only a charge for Class C felony assisting a criminal—admitted that he lied to

      the press and claimed that Owens was the shooter. Wilson also admitted that

      he and Thompson moved Hopkins’s body.

[5]   Likewise, Owens told police that Thompson was the shooter.1 Owens admitted

      that he and Wilson moved Hopkins’s body.

[6]   The State charged Owens with murder and Class A felony robbery. Attorney

      Jeffrey Lockwood, who had practiced criminal law for over thirty-five years, see

      P-C Tr. p. 9-10, represented Owens at trial. Owens’s theory of defense was that

      Thompson—not Owens—shot and robbed Hopkins and that Thompson and

      Wilson were not credible when they implicated Owens as the shooter.

      Detective Kris Ockomon—one of the police officers who interrogated

      Thompson, Wilson, and Owens—testified at trial. During the cross-

      examination of Detective Ockomon, Attorney Lockwood elicited information

      that Thompson had never been to jail before:




      1
       Although the State argues that Owens said “Peasy” was the shooter, Owens then clarified for police that
      “Perry [Thompson]” and Peasy were the same person. Tr. p. 684.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015        Page 4 of 13
        [Attorney Lockwood]:        Do you remember ah, sir and again,
        I’ll be happy to show you this to . . . refresh your recollection.
        Ah, this is page Fifty (50), beginning on line One (1). Mr.
        Thompson says, I’ve never been to jail. And then question:
        Never been in jail? Ah, this is the first time you’re going to do for
        murder. Answer: I ain’t no gangster. Well you are now. Looks
        to me like you’re a gangster. How old are you, Twenty Two
        (22)? Yeah. Both of us have been policemen longer than you’ve
        been alive.


                                              *****


        [Attorney Lockwood]:      Do you remember being in the room at
        the same time this statement . . . .


        [Detective Ockomon]:      If that’s what it reflects in the transcript
        sir from this, the DVD th[en] I say yes, I said that.


Id. at 646. Attorney Lockwood pointed to other parts of Thompson’s

interrogation where Detective Ockomon and another officer told Thompson:

(1) “You look to me like a cold blooded killer. No remorse. Not even shedding

a tear.”; (2) “[Y]ou’re pretty cold man. I’ll give you credit. You’re one of the

coldest characters I’ve come across in a while.”; and (3) “[H]e’s got killer’s eyes

see. He’d just as soon kill you as look at you. Look at him.” Id. at 647, 648,

653. During closing argument, Attorney Lockwood argued that Detective

Ockomon was aggressive during Thompson’s two-hour interrogation and used

commonly known interrogation tactics to get him to implicate Owens as the

shooter. Attorney Lockwood also argued that Thompson wanted the




Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015   Page 5 of 13
      interrogation to end, and Detective Ockomon gave him a “clue” by suggesting

      several times that Owens was the shooter. Id. at 1184-87.


[7]   After a five-day jury trial, the jury found Owens guilty as charged. The trial

      court sentenced him to sixty years for murder and fifty years for robbery, to be

      served consecutively, for an aggregate term of 110 years. Owens appealed,

      arguing that his convictions for murder and Class A felony robbery constituted

      double jeopardy. We agreed and remanded with instructions for the trial court

      to reduce his robbery conviction to a Class C felony and resentence him

      accordingly. Id. On remand, the trial court sentenced Owens to sixty-five years

      for murder and eight years for Class C felony robbery, to be served

      consecutively, for an aggregate term of seventy-three years. Owens appealed

      his new sentence, and we affirmed. Owens v. State, 916 N.E.2d 913 (Ind. Ct.

      App. 2009).


[8]   Owens filed a pro se petition for post-conviction relief in 2009, which was

      amended by counsel in 2014, alleging that Attorney Lockwood rendered

      ineffective assistance of counsel at trial. Specifically, Owens claimed that

      during Attorney Lockwood’s cross-examination of Detective Ockomon,

      Attorney Lockwood referenced Detective Ockomon’s interrogation of

      Thompson, during which Thompson said he had never been to jail. According

      to Owens, “[s]uch evidence bolstered Thompson’s character and harmed the

      defense that Thompson was the shooter.” Appellant’s P-C App. p. 51.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015   Page 6 of 13
[9]   The post-conviction court held a hearing. At the hearing, Attorney Lockwood

      testified that his defense theory was that “Thompson had done it and the police

      had . . . put a thumb on him and really aggressively questioned him [t]o get him

      to implicate Mr. Owens because he didn’t have a record, but Mr. Owens . . .

      did.” P-C Tr. p. 5. Defense counsel then asked Attorney Lockwood if

      “volunteering th[e] information [about Thompson’s lack of criminal history

      was] unhelpful . . . to the overall strategy?” Id. at 6. Attorney Lockwood

      explained:

                 The only reason I brought up that part of the conver[sation was
                 because] [t]here may have been something else in there in that
                 general vicinity that I thought I wanted to confront the detective
                 with. It was a pretty aggressive cross examination. But I didn’t
                 think it was hurtful to the defense because it just went to show
                 that he was the easy guy to let off, and so they wanted him and
                 they tried to scare him or [coerce]2 him. I may say into saying
                 [sic] that [Owens] was the shooter instead of taking responsibility
                 for himself. In other words I didn’t think it was a very thorough
                 or a very fair investigation.


      Id. at 6-7. Although Attorney Lockwood acknowledged that he did not point

      out Thompson’s lack of criminal history again during closing argument,3 he




      2
       The transcript actually reads “course”; however, taken in context, Attorney Lockwood most likely said
      “coerce.” See P-C Tr. p. 6.
      3
          The State, however, relied on Thompsons’s lack of criminal history during its closing argument:

                 This was not a kid who was sitting around engaged in a lot of illegal activity. And in fact
                 [Thompson], if you’ll recall the testimony. It’s undisputed. Has no criminal history at

      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015              Page 7 of 13
       claimed that there was no “doubting what my strategy was”: to prove that

       Thompson was the shooter. Id. at 7. When pressed again as to whether

       Thompson’s lack of criminal history was hurtful to the defense, Attorney

       Lockwood said:

                I don’t know if it helped or hurt. It was just part of what I said in
                carrying out . . . my strategy of the defense. . . . There weren’t
                very many options. You couldn’t argue self defense, you
                couldn’t argue alibi. We had to try to show that the facts more
                pointed toward[] . . . Mr. Thompson than [they] did to Mr.
                Owens.


       Id. at 8. Attorney Lockwood added that other than putting things in context, he

       “didn’t intentionally ask that question or bring it to the attention of the jury.”

       Id. at 9.


[10]   Following the hearing, the post-conviction court issued findings of fact and

       conclusions of law denying relief.4 Specifically, the post-conviction court

       concluded:




                all. Doesn’t have any criminal history. Never been in trouble before. Not as a juvenile.
                Not as an adult. Never been in any trouble.


       Tr. p. 1137-38.


       4
         Owens points out that the post-conviction court’s findings of fact and conclusions are law are a verbatim
       reproduction of the State’s proposed findings of fact and conclusions of law. However, the Indiana Supreme
       Court has stated that although it does not “encourage post-conviction judges to adopt wholesale the findings
       and conclusions of either party,” it “decline[s] to find bias solely on that basis.” Pruitt v. State, 903 N.E.2d
       899, 940 (Ind. 2009). Rather, the critical inquiry is whether the findings adopted by the court are clearly
       erroneous. Id.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015             Page 8 of 13
               7. Trial counsel was not ineffective when on cross examination of
               Detective Kris Ockomon, he referenced Thompson’s interview
               where it was stated that Thompson had never been to jail.
               Lockwood testified that it was a defense strategy to show the
               intense and aggressive interview of Thompson by police to get
               him to implicate Owens. Lockwood testified that it was a
               strategy to show the investigation was not thorough or fair and
               that it went down the wrong path. Lockwood did not highlight
               the statement specifically on its own, but merely included it as
               part of Thompson’s statement in support of the defense theory.
               Lockwood[’s] strategic decision to use this part of Thompson’s
               statement was trial strategy to call into question the investigation
               and hopefully achieve doubt. Even if the strategy was
               unsuccessful and might appear questionable after the fact, it was
               not so deficient or so unreasonable as to fall outside an objective
               standard of reasonableness. Owens has not shown that
               Lockwood’s performance fell below an objective standard of
               reasonableness.


       Appellant’s P-C App. p. 77.


[11]   Owens now appeals.



                                  Discussion and Decision
[12]   Owens contends that the post-conviction court erred in denying him relief. In

       post-conviction proceedings, the petitioner bears the burden of proof by a

       preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v. State,

       881 N.E.2d 639, 643 (Ind. 2008). When appealing from the denial of post-

       conviction relief, the petitioner stands in the position of one appealing from a

       negative judgment, and the standard of review is rigorous. Fisher v. State, 810


       Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015   Page 9 of 13
       N.E.2d 674, 679 (Ind. 2004); see also Trujillo v. State, 962 N.E.2d 110, 113 (Ind.

       2011). “To prevail on appeal from the denial of post-conviction relief, a

       petitioner must show that the evidence as a whole leads unerringly and

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

       court.” Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind. 2010), reh’g denied. Here,

       the post-conviction court made findings of fact and conclusions of law in

       accordance with Indiana Post-Conviction Rule 1(6). “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.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quotation

       omitted), reh’g denied. “The post-conviction court is the sole judge of the weight

       of the evidence and the credibility of witnesses.” Woods v. State, 701 N.E.2d

       1208, 1210 (Ind. 1998), reh’g denied. Accordingly, we accept the post-conviction

       court’s findings of fact unless they are clearly erroneous, but we do not defer to

       the post-conviction court’s conclusions of law. Wilson v. State, 799 N.E.2d 51,

       53 (Ind. Ct. App. 2003).

[13]   To establish a post-conviction claim alleging a violation of the Sixth

       Amendment right to effective assistance of counsel, a defendant must establish

       the two components set forth in Strickland v. Washington, 466 U.S. 668 (1984).

       See Williams v. Taylor, 529 U.S. 362, 390 (2000). “First, a defendant must show

       that counsel’s performance was deficient.” Strickland, 466 U.S. at 687. This

       requires a showing that counsel’s representation fell below an objective

       standard of reasonableness and that counsel made errors so serious that counsel

       Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015   Page 10 of 13
       was not functioning as “counsel” guaranteed to the defendant by the Sixth

       Amendment. Id. “Second, a defendant must show that the deficient

       performance prejudiced the defense.” Id. This requires a 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. A reasonable probability is one that is sufficient to undermine

       confidence in the outcome. Id. Because the deficient-performance and

       prejudice prongs are separate and independent inquiries, a defendant’s failure to

       establish either prong will cause the claim to fail. State v. Greene, 16 N.E.3d 416

       (Ind. 2014).

[14]   Owens argues that Attorney Lockwood was deficient because “he volunteered

       information harmful to Owens’s defense”—specifically, that Thompson had

       never been in jail. Appellant’s Br. p. 6. Counsel is afforded considerable

       discretion in choosing strategy and tactics. Timberlake v. State, 753 N.E.2d 591,

       603 (Ind. 2001). This is because even the best and brightest criminal defense

       attorneys may disagree on ideal strategy or the most effective way to represent a

       defendant. Id. Accordingly, we do not “second-guess” strategic decisions

       requiring reasonable professional judgment even if the strategy in hindsight did

       not serve the defendant’s interests. State v. Moore, 678 N.E.2d 1258, 1261 (Ind.

       1997). And rather than focusing on isolated instances of poor tactics or strategy

       in the management of a case, the effectiveness of representation is determined

       Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015   Page 11 of 13
       based on the whole course of attorney conduct. Id. In fact, “[f]ew points of law

       are as clearly established as the principle that tactical or strategic decisions will

       not support a claim of ineffective assistance.” Conder v. State, 953 N.E.2d 1197,

       1204 (Ind. Ct. App. 2011).


[15]   The record shows that Attorney Lockwood zealously defended Owens at trial.

       He subjected both Thompson and Wilson to lengthy and vigorous cross-

       examinations. At the post-conviction hearing, Attorney Lockwood explained

       that he did not have many options in defending Owens. So the defense strategy

       was that Thompson—not Owens—was the shooter, but police focused their

       attention on Owens instead. Attorney Lockwood explained that police did this

       by trying to “scare” or “coerce” Thompson—who was “the easy guy to let off”

       because he did not have a criminal history—into implicating Owens. P-C Tr. p.

       6. Attorney Lockwood also highlighted other portions of Thompson’s

       interrogation where police accused him of being a “gangster” with “tats” on

       him and “a cold blooded killer” with “[n]o remorse.” Tr. p. 647, 648.

       Although Attorney Lockwood’s strategy did not prove successful, it is the very

       kind of strategic decision that we will not second guess on appeal. Accordingly,

       we conclude that Attorney Lockwood was not deficient.5 We therefore affirm

       the post-conviction court.




       5
        Even if we found that Attorney Lockwood’s performance was deficient, we find that Attorney Lockwood’s
       deficient performance did not prejudice the defense. That is, Owens has failed to prove that but for Attorney
       Lockwood’s one comment about Thompson’s lack of criminal history, the result of the proceeding would
       have been different. See Strickland, 466 U.S. at 694.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015         Page 12 of 13
[16]   Affirmed.

[17]   Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1501-PC-60 | September 29, 2015   Page 13 of 13
