                                                                                        FILED
                                                                                    Dec 27 2017, 8:41 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Dorian Lee                                                Curtis T. Hill, Jr.
      Carlisle, Indiana                                         Attorney General of Indiana
                                                                Ian McLean
                                                                Supervising Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Dorian Lee,                                               December 27, 2017
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                71A05-1702-PC-326
              v.                                                Appeal from the St. Joseph
                                                                Superior Court
      State of Indiana,                                         The Honorable Jane Woodward
      Appellee-Respondent.                                      Miller, Judge
                                                                Trial Court Cause No.
                                                                71D01-0305-PC-20



      Bailey, Judge.



                                           Case Summary
[1]   Dorian Lee (“Lee”) appeals, pro se, the post-conviction court’s denial of his

      amended petition for post-conviction relief. We affirm.



      Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                 Page 1 of 27
                                                    Issues
[2]   On appeal, Lee raises multiple ineffective assistance of trial and appellate

      counsel claims, which we restate as follows:


              I.       Whether Lee’s trial counsel was ineffective for failing to
                       object to jury instructions regarding accomplice liability
                       for murder.


              II.      Whether Lee’s trial counsel was ineffective for failing to
                       object to jury instructions regarding attempted murder.


              III.     Whether Lee’s trial counsel was ineffective for failing to
                       object to jury instructions and prosecutor’s statements
                       regarding accomplice liability for attempted murder.


              IV.      Whether Lee’s trial counsel was ineffective for failing to
                       object to jury instructions that created a “mandatory
                       presumption.”


              V.       Whether Lee’s trial counsel was ineffective for failing to
                       raise the lack of evidence that Lee attempted to murder
                       Janice Boyd.


              VI.      Whether Lee’s trial counsel was ineffective for failing to
                       properly impeach adverse witnesses.


              VII.     Whether Lee’s trial counsel was ineffective for failing to
                       properly conduct discovery.


              VIII. Whether Lee’s trial counsel was ineffective for failing to
                    seek a trial separate from Lee’s co-defendants.


      Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 2 of 27
                 IX.      Whether Lee’s trial counsel was ineffective for failing to
                          object to the admission of a firearm because it was
                          obtained pursuant to an illegal search.


                 X.       Whether Lee’s appellate counsel was ineffective for failing
                          to raise Lee’s trial counsel’s ineffective assistance.


                               Facts and Procedural History
[3]   The facts underlying Lee’s convictions were set out in the Indiana Supreme

      Court’s decision on Lee’s direct appeal:


                 On June 12, 1995, [Lee], along with two armed men, Terrance
                 Mitchem and Michael Greer, broke and entered a home
                 occupied by four adults. [Lee] raped one of the female victims
                 and participated in the shooting of all four victims. One victim
                 was killed,[1] while the other three survived.[2]


      Lee v. State, 684 N.E.2d 1143, 1145 (Ind. 1997). We will provide additional

      facts as needed.


[4]   Following a December 1995 jury trial in which Lee was tried jointly with co-

      defendants Terrance Mitchem (“Mitchem”) and Michael Greer (“Greer”), Lee

      was convicted of murder;3 burglary, as a Class B felony;4 three counts of




      1
          The victim who was killed was Victor Hill (“Hill”).
      2
          The other three victims were Janice Boyd (“Janice”), Nicole Boyd (“Nicole”), and Jeffrey Sims (“Sims”).
      3
          Ind. Code § 35-42-1-1 (1993).
      4
          I.C. § 35-42-2-1.


      Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                      Page 3 of 27
      attempted murder, as Class A felonies;5 and rape, as a Class A felony.6 Lee

      filed a direct appeal in which our Supreme Court upheld his convictions. Lee,

      684 N.E.2d at 1150.


[5]   On May 8, 2003, Lee filed a petition for post-conviction relief (“PCR”). On

      September 4, 2007, Lee filed a motion for an indefinite continuance of his PCR

      petition, and the trial court granted the motion. On May 1, 2015, Lee filed an

      amended petition for PCR in which he raised numerous allegations of

      ineffective assistance of trial and appellate counsel. The court held a post-

      conviction evidentiary hearing on May 27, 2016, and October 29, 2016. On

      January 11, 2017, the post-conviction court issued its order denying Lee’s

      petition. This appeal ensued.



                                     Discussion and Decision
                                             Standard of Review
[6]   Lee appeals the post-conviction court’s denial of his amended petition for post-

      conviction relief. Our standard of review is clear:


                 [The petitioner] bore the burden of establishing the grounds for
                 relief by a preponderance of the evidence. Ind. Post-Conviction
                 Rule 1(5). Because he is now appealing from a negative
                 judgment, to the extent his appeal turns on factual issues, [the




      5
          I.C. §§ 35-41-5-1 and 35-42-1-1.
      6
          I.C. § 35-42-4-1.


      Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 4 of 27
               petitioner] must convince this Court that the evidence as a whole
               leads unerringly and unmistakably to a decision opposite that
               reached by the post[-]conviction court. Harrison v. State, 707
               N.E.2d 767, 773 (Ind. 1999) (citing Spranger v. State, 650 N.E.2d
               1117, 1119 (Ind. 1995)). We will disturb the decision only if the
               evidence is without conflict and leads only to a conclusion
               contrary to the result of the post[-]conviction court. Id. at 774.

               Post[-]conviction procedures do not afford a petitioner with a
               super-appeal, and not all issues are available. Rouster v. State, 705
               N.E.2d 999, 1003 (Ind. 1999). Rather, subsequent collateral
               challenges to convictions must be based on grounds enumerated
               in the post[-]conviction rules. P C.R. 1(1); Rouster, 705 N.E.2d at
               1003. If an issue was known and available, but not raised on
               direct appeal, it is waived. Rouster, 705 N.E.2d at 1003. If it was
               raised on appeal, but decided adversely, it is res judicata. Id.
               (citing Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994)). If not
               raised on direct appeal, a claim of ineffective assistance of trial
               counsel is properly presented in a post[-]conviction proceeding.
               Woods v. State, 701 N.E.2d 1208, 1215 (Ind. 1998). A claim of
               ineffective assistance of appellate counsel is also an appropriate
               issue for post[-]conviction review. As a general rule, however,
               most free-standing claims of error are not available in a post[-]
               conviction proceeding because of the doctrines of waiver and res
               judicata. Some of the same contentions, to varying degrees, may
               be properly presented in support of a claim of ineffective
               assistance of trial or appellate counsel.


      Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001).


                       Ineffective Assistance of Trial Counsel
[7]   Lee contends that his trial counsel was ineffective. As our Supreme Court has

      noted:



      Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 5 of 27
              [t]his Court reviews claims of ineffective assistance of counsel
              under the two components set forth in Strickland v. Washington,
              466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the
              defendant must show that counsel’s performance was deficient.
              Id. at 687, 104 S.Ct. 2052. This requires a showing that counsel’s
              representation fell below an objective standard of reasonableness,
              id. at 688, 104 S.Ct. 2052, and that the errors were so serious that
              they resulted in a denial of the right to counsel guaranteed the
              defendant by the Sixth Amendment, id. at 687, 104 S.Ct. 2052.
              Second, the defendant must show that the deficient performance
              prejudiced the defendant. 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 a probability sufficient to undermine
              confidence in the outcome. Id.

      Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002); see also Wrinkles v. State,

      749 N.E.2d 1179, 1192 (Ind. 2001) (citation omitted) (“In order to

      prove ineffective assistance of counsel due to the failure to object, a

      defendant must prove that an objection would have been sustained if

      made and that he was prejudiced by the failure.”).



[8]   We will not second-guess trial counsel’s strategy and tactics unless they are so

      unreasonable that they fall outside objective standards. See, e.g., Benefield v.

      State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). Isolated mistakes, poor

      strategy, inexperience, and instances of bad judgment do not necessarily render

      representation ineffective. Wentz, 766 N.E.2d at 361. And if we can dispose of

      a claim of ineffective assistance of counsel by analyzing the prejudice prong


      Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 6 of 27
       alone, we will do so. Benefield, 935 N.E.2d at 797 (citing Wentz, 766 N.E.2d at

       360).


[9]    Lee raises eight ineffective assistance of trial counsel claims, each of which we

       address in turn.


              1. Failure to object to jury instructions regarding accomplice liability for murder


[10]   Lee was charged, as a principal, with the murder of Victor Hill, and the State

       also tried Lee as an accomplice to that murder.7 Lee contends that the jury

       instructions regarding accomplice liability for murder8 were improper because




       7
          To the extent Lee maintains that he could not properly be tried for murder both as a principal and an
       accomplice, he is mistaken. See, e.g., Taylor v. State, 840 N.E.2d 324, 333 (Ind. 2006). Moreover, it is
       irrelevant whether the jury found Lee guilty as a principal or an accomplice because he was equally culpable
       under either theory of liability. See id.
       8
            The final jury instruction regarding murder stated as follows:

                   To convict a defendant of Murder as charged in Counts [sic] I, the State must have proved each of
                   the following elements beyond a reasonable doubt:
                   1.   A defendant, acting alone or with an accomplice,
                   2.   intentionally,
                   3.   killed Victor Hill.
           Trial Record (hereinafter, “Tr. R.”) Vol. I at 151.
           The final jury instructions regarding aiding and abetting stated as follows:
                   In order for you to find a defendant aided, induced, or caused any of the counts of murder,
                   attempted murder, or burglary, the [S]tate must have proved beyond a reasonable doubt that[,] with
                   regard to any of these charges, that [sic] a defendant was aware with a high degree of probability
                   that he was engaged in conduct that aided, induced, or caused murder, attempted murder, and
                   burglary and that his behavior would facilitate the commission of the murder, attempted murder[,]
                   and burglary.
           Id. at 157; and
                   You may find the defendant guilty of the offense if you find that the offense was committed by
                   someone whom the defendant aided, induced[,] or caused to commit the offense.

       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                         Page 7 of 27
they did not inform the jury that, in order to find Lee guilty as an accomplice, it

must find that those whom he was aiding acted with the knowing or intentional

mens rea for murder. In support, he cites the Court of Appeals case Taylor v.

State, 820 N.E.2d 691, 695 (Ind. Ct. App. 2005). However, that decision was

vacated by our Supreme Court, which specifically held that a defendant can be

found guilty of murder for intentionally aiding and abetting a principal to kill a

victim so long as the principal killed the victim and the defendant knew or

intended that the victim would be killed. Taylor v. State, 840 N.E.2d 324, 335-

36 (Ind. 2006). This is so even if the principal did not “knowingly or

intentionally” kill the victim. Id. Thus, a defendant can be found guilty of a




         Before you can find a defendant guilty of the charge in this manner, you must find beyond a
         reasonable doubt that he participated in the crime in such a way as to aid, induce[,] or cause the
         crime to be committed.
         Negative acquiescence, that is, merely letting a crime occur, is not sufficient participation to support
         a guilty verdict.
         Similarly, mere presence at the scene of a crime is not sufficient participation to support a guilty
         verdict. Th[e] fact that the defendant was a relative or companion of the person who committed the
         crime does not constitute aiding, inducing[,] or causing the crime.
         There must be some conduct of an affirmative nature on the part of the defendant that aids,
         induces[,] or causes the crime to be committed in order for you to find him guilty of a crime another
         person committed.
Id. at 178.
The court also provided the jury with the following instruction regarding accomplice liability:
         A person is responsible for the acts of his accomplices as well as his own. The acts of one person are
         attributable to all who are acting together during the commission of a crime. Accordingly, the State
         need not prove, beyond a reasonable doubt, that a defendant personally and acting by himself,
         committed all of the elements of the crime or crimes with which he is charged. However, the State
         must prove, beyond a reasonable doubt, that the defendant and the other person or persons, acting
         together, committed all of the elements of the crime or crimes with which he is charged.
 Id. at 166.



Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                         Page 8 of 27
       greater degree of homicide than the principal; in such a situation, the

       defendant’s mens rea would be more culpable than that of the principal. Id.

       Therefore, the post-conviction court did not err in ruling that Lee’s trial counsel

       was not ineffective for failing to object that the jury instructions regarding

       accomplice liability for murder did not require the jury to find that the principal

       had the specific mens rea to kill.


              2. Failure to object to jury instructions regarding attempted murder


[11]   Lee maintains that the jury instructions regarding attempted murder were

       improper because they included the information in six counts against Lee,

       including Counts III through V, which used the word “knowingly” in relation

       to the element of mens rea for attempted murder.9 In support, he cites Spradlin




       9
         The charging information on Counts III through V, as contained in the final jury instructions, stated in
       relevant part that Lee, “with the intent to commit the crime of Murder, that is[,] knowingly or intentionally
       killing another human being, engaged in conduct that constituted a substantial step toward the commission of
       the crime of Murder ….” Tr. R. Vol. I at 144-45.
           The final jury instructions regarding attempted murder stated as follows:
                   To convict a defendant of attempted murder, a Class A felony, as charged in Counts III, the State
                   must prove each of the following elements beyond a reasonable doubt:
                   1.   A defendant,
                   2.   With the intent to kill [the victim],
                   3.   Engaged in conduct which was a substantial step toward the commission of the crime of
                        murder.
           Tr. R. Vol. I at 153.
           The jury also received the following additional instruction regarding attempted murder:
                   In a case where a defendant is charged with Attempted Murder, it is not enough that a defendant
                   engaged in the proscribed conduct, such as firing a weapon. The State must prove beyond a
                   reasonable doubt that a defendant also engaged in the conduct with the specific intention of
                   accomplishing the killing of a human being.

       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                         Page 9 of 27
       v. State, which held that jury instructions regarding a charge of direct liability for

       attempted murder must inform the jury that the State must prove beyond a

       reasonable doubt that the defendant acted with the specific intent to kill and

       took a substantial step toward such killing. 569 N.E.2d 948, 950-51 (Ind. 1991);

       see also Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015) (noting that Spradlin related

       to direct liability, rather than accomplice liability, for attempted murder). The

       “Spradlin rule” is necessary because of “the higher sentence range for attempted

       murder in combination with the ambiguity involved in the proof of that crime.”

       Ramsey v. State, 723 N.E.2d 869, 872 (Ind. 2000). Lee maintains that, because

       the instruction quoting the charging information on murder included the word

       “knowingly,” it erroneously led the jury to believe it could convict him of

       attempted murder upon a showing that he merely “knew” he was acting,

       regardless of his intent in acting. We disagree.


[12]   Lee is correct that an instruction that informs the jury that a “knowingly” mens

       rea, alone, is sufficient to establish guilt, as a principal, of attempted murder

       constitutes fundamental error. Spradlin, 569 N.E.2d at 950-51. However, that

       is not what the jury instructions regarding direct liability for attempted murder

       stated in Lee’s case. We do not read segments of a jury instruction in isolation;

       rather, we consider the instructions as a whole. Price v. State, 765 N.E.2d 1245,

       1252 (Ind. 2002). Here, the jury instructions as a whole informed the jury that,

       in order to find Lee guilty of attempted murder, “it is not enough that [he]




        Id. at 156 (emphasis added).

       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 10 of 27
       engaged in the proscribed conduct,” i.e., that he acted knowingly. Tr. R. Vol. I

       at 156. The instruction then states that the jury must find the defendant acted

       “with the specific intention of accomplishing the killing” of another human

       being. Id. The instruction on attempted murder also stated that the State had

       to prove beyond a reasonable doubt Lee’s “intent to kill” the victim. Id. at 153.

       Therefore, there was no Spradlin error in the jury instructions, and trial counsel

       was not ineffective for failing to object on that basis. See Ramsey v. State, 723

       N.E.2d 869, 872-73 (Ind. 2000) (finding the jury instructions as a whole

       sufficiently informed the jury of the specific intent requirement for attempted

       murder, despite the use of the word “knowingly” in one of the instructions).


           3. Failure to object to jury instructions and prosecutor’s statements regarding
              accomplice liability for attempted murder

[13]   Lee asserts his trial counsel was ineffective for failing to object to (1)

       instructions that permitted the jury to convict him of attempted murder as an

       accomplice without the specific intent to kill, and (2) the prosecutor’s closing

       argument indicating the same. The Spradlin decision made it clear that, in the

       context of direct liability, a jury instruction must set forth the specific intent

       requirement for attempted murder. Spradlin, 569 N.E.2d at 950. In 2000, our

       Supreme Court for the first time held that the same rule applies to jury

       instructions relating to accomplice liability for attempted murder. Bethel v. State,

       730 N.E.2d 1242, 1246 (Ind. 2000). Even more recently, our Supreme Court




       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 11 of 27
       held, in a matter of first impression,10 that the same rule applies to jury

       instructions relating to attempted murder where both theories of direct and

       accomplice liability are at issue. Rosales, 23 N.E.2d at 15. Thus, as of the date

       Rosales was decided—i.e., January 15, 2015—Indiana law requires that, where

       both direct and accomplice liability theories are at issue for an attempted

       murder charge, the jury instructions must specify that a conviction requires

       proof beyond a reasonable doubt that the defendant had the specific intent to

       kill. Id. Moreover, it is not sufficient that the instructions regarding attempted

       murder require a finding of specific intent if the accomplice instructions do not

       also require a finding of specific intent. Id.; see also Tiller v. State, 896 N.E.2d

       537, 542 (Ind. Ct. App. 2008) (“While the trial court’s instruction correctly

       stated the law as it generally pertained to accomplice liability, the trial court’s

       instruction fell short of adequately instructing the jury that the specific intent

       requirement for attempted murder, as properly set forth in the attempted

       murder instruction, also applied to accomplice liability for attempted murder.”),

       trans denied.


[14]   Here, like the defendant in Rosales, Lee was charged with attempted murder

       under both direct and accomplice theories of liability. And, as in Rosales, while

       Lee’s jury instructions noted specific intent was required to convict him of

       attempted murder, the instructions regarding accomplice liability indicated that




       10
            Rosales, 23 N.E.3d at 12-13 (noting the Court was resolving a matter of first impression).


       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                       Page 12 of 27
       a person could be guilty of attempted murder without also noting that he must

       have the specific intent to kill.11 Furthermore, as in Rosales, the prosecutor

       exacerbated that error by indicating in his closing argument that Lee’s specific

       intent to kill was not required to find him guilty of attempted murder as an

       accomplice.12 Id. And, again as in Rosales, the general verdict forms used made

       it impossible to determine whether direct or accomplice liability formed the

       basis of the jury’s decisions regarding attempted murder.13 Id.


[15]   However, Lee’s trial took place in 1995. Thus, at the time of his trial, Indiana

       courts had not yet held that jury instructions on attempted murder under a

       theory of accomplice liability alone, Bethel, 730 N.E.2d at 1246, or accomplice

       and direct liability theories together, Rosales, 23 N.E.3d at 15, must state the

       requirement of specific intent to kill. “For purposes of ineffective assistance of

       counsel claims, the law requires consideration of legal precedent available to

       counsel at the time of his representation of the accused, and counsel will not be

       deemed ineffective for not anticipating or initiating changes in the law.”

       Sweeney v. State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008) (citing Gann v. State, 550




       11
          Compare accomplice instructions in Rosales, 23 N.E.3d at 10-11 (“[a] person who knowingly or
       intentionally aids, induces or causes another person to commit an offense commits that offense ... [a]n
       accomplice is liable for the acts of the principal which, even if not a part of their original plan, are probable
       and natural consequences thereof”), with the language in Lee’s jury instructions regarding aiding and
       abetting, Tr. R. Vol. I at 178, and accomplice liability, id. at 166, as quoted in footnote 8, above.
       12
          Regarding accomplice liability, the prosecutor stated to the jury: “All the State of Indiana has to do is
       show you that each one of these essential elements were committed. Each defendant doesn’t have to do
       every one, as long as they’re acting together, as long as all of those essential elements are fulfilled, then the
       State has satisfied its burden.” Tr. R. Vol. VI at 1516.
       13
            Tr. R. Vol. I at 185-87.


       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                           Page 13 of 27
       N.E.2d 73, 75 (Ind.1990)), trans. denied; see also Smylie v. State, 823 N.E.2d 679,

       690 (Ind. 2005) (quotation and citation omitted) (“An attorney is not required

       to anticipate changes in the law and object accordingly in order to be

       considered effective”). The post-conviction court did not err in denying Lee’s

       claim of ineffective assistance of counsel for failure to object to the instruction

       regarding accomplice liability for attempted murder.14


            4. Failure to object that instructions created a “mandatory presumption”


[16]   Lee also contends that, because the accomplice instructions, as applied to the

       attempted murder charges, did not require specific intent, they created an

       impermissible “mandatory presumption” that Lee had the required mens rea to

       find him guilty.15


                The Due Process Clause prohibits the State from relying upon an
                evidentiary presumption that has the effect of relieving it of its
                burden to prove every essential element of a crime beyond a
                reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 524, 99
                S.Ct. 2450, 61 L.Ed.2d 39 (1979); McCorker v. State, 797 N.E.2d
                257, 263 (Ind. 2003). As a threshold matter, we must first
                determine whether the challenged instruction creates a
                mandatory presumption or merely a permissive inference. Francis




       14
          Because we hold that, at the time of Lee’s trial, the law did not require that accomplice liability
       instructions for attempted murder must contain specific intent language, we do not address the State’s
       contention that any instruction error regarding intent would be not be fundamental because Lee’s intent was
       not at issue in that he relied exclusively on an alibi defense.
       15
          Lee also contends—incorrectly—that “the proper reasonable doubt language is missing” from the jury
       instructions. Appellant’s Br. at 24. The jury instructions define reasonable doubt, Tr. R. Vol. I at 169, and
       instruct that the State must prove all elements of all the crimes, generally, Id. at 168, and attempted murder,
       specifically, Id. at 157, beyond a reasonable doubt.

       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                        Page 14 of 27
               v. Franklin, 471 U.S. 307, 313–14, 105 S.Ct. 1965, 85 L.Ed.2d
               344 (1985). “A mandatory presumption instructs the jury that it
               must infer the presumed facts if the State proves certain predicate
               facts.” Winegeart v. State, 665 N.E.2d 893, 904 (Ind. 1996)
               (emphasis added). If that presumption amounts to a shift in the
               burden of proof, it is unconstitutional. Francis, 471 U.S. at 315–
               16, 105 S.Ct. 1965.


       Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016). A permissive inference, on the

       other hand,


               “suggests to the jury a possible conclusion to be drawn if the
               State proves predicated facts, but does not require the jury to
               draw that conclusion.” [Winegeart, 665 N.E.2d at 904.] Such an
               inference “does not relieve the State of its burden of persuasion
               because it still requires the State to convince the jury that the
               suggested conclusion should be inferred based on the predicate
               facts proved.” Id. Permissive inference instructions “violate the
               Due Process Clause only if the suggested conclusion is not one
               that reason and common sense justify in light of the proven facts
               before the jury.” Id.


       Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998).


[17]   Here, the jury instructions regarding aiding and abetting used only permissive

       language;16 therefore, they created only a permissive inference rather than a

       mandatory presumption. However, the instructions regarding accomplice

       liability seem to create a mandatory presumption; that is, they indicate that, if




       16
          The instructions used permissive language such as “in order for you to find,” “you may find,” and
       “[b]efore you can find.” Tr. R. Vol. I at 157, 178 (See footnote 8, above).

       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                    Page 15 of 27
Lee acted together with his co-defendants, then he is guilty as an accomplice.17

Cf. McCorker v. State, 797 N.E.2d 257, 264-65 (Ind. 2003) (finding similar

accomplice liability language to be permissible when the same instruction also

contained language requiring a finding of specific intent). But, the law at the

time of Lee’s trial held that an instruction that seems to create a mandatory

presumption “‘must be considered in the context of the charge as a whole,’

because it may be explained by other instructions sufficiently to avoid the

creation of an unconstitutional presumption.”18 Winegeart, 665 N.E.2d at 904

(quoting Francis 471 U.S. at 315). And, here, the instructions regarding

attempted murder did require that the jury find specific intent to kill 19 in order to

find Lee guilty, thereby avoiding the creation of an unconstitutional

presumption.20 Id. Therefore, Lee’s counsel was not ineffective for failing to

object to the accomplice liability instructions.




17
     Tr. R. Vol. I at 166 (See footnote 8, above).
18
    As noted in the previous section of this opinion, the law now requires that, in the specific case of
accomplice instructions regarding attempted murder, the instructions must require a finding that the
defendant acted with the specific intent to kill, and failure to do so within the accomplice instructions
themselves cannot be cured by looking to other instructions. Tiller, 896 N.E.2d at 542. However, “[f]or purposes
of ineffective assistance of counsel claims, the law requires consideration of legal precedent available to
counsel at the time of his representation of the accused.” Sweeney, 886 N.E.2d at 8.
19
     Tr. R. Vol. I at 153, 156 (See footnote 9, above).
20
    Because we hold that the instructions did not create a mandatory presumption, we do not address the
State’s contention that any instruction error regarding intent would be harmless because Lee’s intent was not
at issue in that he relied exclusively on an alibi defense.

Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                         Page 16 of 27
            5. Failure to raise the lack of evidence of attempted murder of Janice Boyd


[18]   Lee maintains that his attorney was ineffective for “failing to object to the

       insufficient evidence” that he attempted to murder Janice Boyd.21 Appellant’s

       Br. at 25. He contends that there was no evidence that he “shot at and against

       the body” of Janice or “inflicted wounds” on her, since there was no evidence

       that any of the shots he fired in Janice’s direction actually hit her. Id. at 26.

       However, Lee is mistaken regarding what evidence is sufficient to establish guilt

       of attempted murder.


[19]   As our Supreme Court has noted,


                A conviction for attempted murder requires proof of a specific
                intent to kill. Bethel v. State, 730 N.E.2d 1242, 1245 (Ind. 2000).
                Because intent is a mental state, we have noted that intent to kill
                may be inferred from the deliberate use of a deadly weapon in a
                manner likely to cause death or serious injury. Wilson v. State,
                697 N.E.2d 466, 476 (Ind. 1998). And firing a gun in the
                direction of an individual is substantial evidence from which a
                jury may infer intent to kill. Jones v. State, 536 N.E.2d 267, 270
                (Ind. 1989).


       Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). This is so even if the deliberate

       use of a deadly weapon does not actually result in injury to the intended victim.

       “Attempted murder requires a certain act and a certain intent. It does not




       21
          Although Lee styles his claim as a “failure to object,” we presume Lee means that his trial counsel was
       ineffective for failing to raise the issue of insufficient evidence, such as through a motion for judgment on the
       evidence or a motion for a directed verdict. Ind. Trial Rule 50.

       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                         Page 17 of 27
       matter whether the act, the substantial step taken toward the commission of

       murder, results in any injury whatsoever, so long as it is coupled with the intent

       to kill.” Wethington v. State, 655 N.E.2d 91, 96 (Ind. Ct. App. 1995) (holding

       the defendant’s “intentional attempt on [the victim’s] life was completed with

       the first swing of his tire tool in the direction of [the victim’s] head, whether or

       not it connected”), trans. denied.


[20]   Here, the evidence established that Lee, along with his co-defendants, lined the

       victims up and shot at them repeatedly. Lee used a shotgun and, although no

       shotgun pellets were recovered from Janice’s body, the evidence established

       that Lee did, at close range, fire his shotgun in Janice’s direction. That is

       sufficient evidence of Lee’s actions and his intent to attempt to murder Janice,

       and his attorney was not ineffective for failing to raise the issue of a lack of such

       evidence.22 Henley, 881 N.E.2d at 652.


            6. Failure to properly impeach adverse witnesses


[21]   Lee contends that his trial counsel was ineffective for failing to “properly

       impeach” adverse witnesses. Appellant’s Br. at 27. Specifically, he asserts that

       his counsel failed to impeach witnesses with their prior inconsistent statements;

       failed to impeach co-defendant Mitchem regarding his biased reasons for

       placing blame on Lee; and failed to cross examine Sims regarding his faulty




       22
          Furthermore, our Supreme Court has held generally that a “failure of trial counsel to move for a directed
       verdict does not create sufficient prejudice to result in a finding of ineffective assistance of counsel.” Siglar v.
       State, 541 N.E.2d 944, 948 (Ind. 1989).

       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                            Page 18 of 27
       memory. However, “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, 1151 (Ind. 2010); see also McCary v. State, 761

       N.E.2d 389, 392 (Ind. 2002) (quotation and citation omitted) (“Few points of

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

       will not support a claim of ineffective assistance.”). That is especially true here,

       where trial counsel did, in fact, take all the steps Lee claims she did not. Lee’s

       trial counsel cross examined each of the victims regarding their prior statements

       to police which seemed inconsistent with their trial testimony. Tr. R. Vol. IV at

       941-44; 975-79; Tr. R. Vol. V at 1167-70. Lee’s trial counsel also cross

       examined Sims regarding his alleged faulty memory of the prior statements he

       made to police. Tr. R. Vol. V at 1168-70. And Lee’s counsel pointed out in her

       closing argument the witnesses’ inconsistent statements regarding Lee’s identity

       as a perpetrator and Mitchem’s attempts to shift blame from himself to Lee. Tr.

       R. Vol. at 1531-32.


[22]   Lee has failed to show clear error in the post-conviction court’s decision that

       Lee’s trial counsel was not ineffective for failing to properly impeach adverse

       witnesses.


           7. Failure to properly conduct discovery


[23]   Lee asserts that his trial counsel did not “properly investigate” discovery

       materials and, had she done so, she would have: moved to suppress the firearm

       that he alleges the State obtained illegally; questioned Sims’ character based on


       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 19 of 27
       his drug use; impeached witnesses regarding inconsistent statements; and

       objected to jury instructions. Appellant’s Br. at 30. Lee fails to articulate which

       discovery materials his counsel did not obtain and/or review; rather, he simply

       states “i.e., Depositions.” However,


                [c]ounsel’s failure to interview or depose State’s witnesses does
                not, standing alone, show deficient performance. The question is
                what additional information may have been gained from further
                investigation and how the absence of that information prejudiced
                his case.


       Williams v. State, 771 N.E.2d 70, 74 (Ind. 2002) (citations omitted).


[24]   We hold that Lee has waived this claim by failing to provide cogent argument.

       Lee does not state what additional information would have been gained if his

       lawyer had conducted depositions or otherwise “investigated” any other

       unidentified discovery materials. Appellant’s Br. at 30. Nor does he explain

       how the absence of such information prejudiced his case. “On review, we will

       not search the record to find a basis for a party’s argument, nor will we search

       the authorities cited by a party in order to find legal support for its position.”

       Young v. Butts, 685 N.E.2d 147, 151 (Ind. 1997). Furthermore, we hold pro se

       litigations such as Lee to the same performance standards as practicing

       attorneys. See, e.g., Smith v. State, 822 N.E.2d 193, 203 (Ind. Ct. App. 2005),

       trans. denied. Lee’s failure to provide cogent argument regarding his lawyer’s

       alleged deficiency in conducting discovery waives that argument for our review.

       Ind. Appellate Rule 46(A)(8)(a); Pierce v. State, 29 N.E.3d 1258, 1267 (Ind.

       2015).
       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 20 of 27
[25]   Waiver notwithstanding, Lee’s trial counsel testified at his PCR hearing that

       she reviewed all discovery material, PCR Tr. Vol. II at 19, 24, 28, and the post-

       conviction court found her testimony credible, PCR App. Vol. IV at 183. Lee

       has pointed to nothing in the record to counter trial counsel’s credible

       testimony. The post-conviction court did not err in finding that Lee’s trial

       counsel was not ineffective for failing to adequately conduct discovery.


           8. Failure to seek a separate trial from co-defendants


[26]   Lee maintains that his trial counsel was ineffective for failing to object when

       counsel for Lee’s co-defendant “became a second prosecutor during his closing

       argument.” Appellant’s Br. at 31. Lee cites to the closing argument of Greer’s

       attorney, who stated:


               Now maybe as Mr. Mitchem suggested, things didn’t go as
               planned. Dorian Lee decided to go and do something that was
               not intended. Maybe we heard Little Vic apparently talk back to
               him, and maybe Mr. Lee thought that was justification for
               changing the plans and actually shooting somebody. But what
               was the intent of Mr. Greer? Was he doing things knowing that
               [Lee] was now serious, that these weren’t just threats to scare
               these folks to intimidate them, but now Mr. Lee had changed the
               scheme, it was now I am going to take somebody out. [Tr. R.
               Vol. VI at 1539.] … The murder’s the same thing. Did Michael
               Greer know that Dorian Lee had changed the plan? [Id. at 1540.]
               ... Michael Greer is the one that once some shots were fired said,
               “Let’s go, let’s go.” And he left. I suggest that shows this was—
               he suddenly found himself in a situation that he did not expect.
               But it had suddenly become real. It wasn’t just plan and scaring
               people, somebody had changed the rules, upped the ante a lot,
               and he got out of there.

       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 21 of 27
       Tr. R. Vol. VI at 1539-41.


[27]   This is precisely the closing argument language which Lee challenged on his

       direct appeal, and the issue was decided adversely to him. Lee v. State, 684

       N.E.2d 1143, 1148 (Ind. 1997). And, our Supreme Court has noted the limited

       nature of post-conviction relief, which does not extend to re-litigating issues that

       rest on essentially the same claim that was raised on direct appeal:


               The purpose of a petition for post-conviction relief is to raise
               issues unknown or unavailable to a defendant at the time of the
               original trial and appeal. Taylor v. State, 840 N.E.2d 324, 330
               (Ind. 2006); Grey v. State, 553 N.E.2d 1196, 1197 (Ind. 1990). A
               post-conviction petition is not a substitute for an appeal.
               Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). Further, post-
               conviction proceedings do not afford a petitioner a “super-
               appeal.” Benefiel v. State, 716 N.E.2d 906, 911 (Ind. 1999), cert.
               denied, 531 U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000). Our
               post-conviction rules contemplate a narrow remedy for
               subsequent collateral challenges to convictions. Williams v. State,
               706 N.E.2d 149, 153 (Ind. 1999), cert. denied, 529 U.S. 1113, 120
               S.Ct. 1970, 146 L.Ed.2d 800 (2000). If an issue was known and
               available but not raised on appeal, it is waived. Rouster v. State,
               705 N.E.2d 999, 1003 (Ind. 1999). If an issue was raised on
               direct appeal, but decided adversely to the petitioner, it is res
               judicata. Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind. 1999),
               cert. denied, 531 U.S. 858, 121 S.Ct. 143, 148 L.Ed.2d 94 (2000).


               The doctrine of res judicata bars a later suit when an earlier suit
               resulted in a final judgment on the merits, was based on proper
               jurisdiction, and involved the same cause of action and the same
               parties as the later suit. Annes v. State, 789 N.E.2d 953, 954 (Ind.
               2003). As a general rule, when a reviewing court decides an
               issue on direct appeal, the doctrine of res judicata applies, thereby

       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 22 of 27
                precluding its review in post-conviction proceedings. Ben–Yisrayl
                v. State, 738 N.E.2d 253, 258 (Ind. 2000). The doctrine of res
                judicata prevents the repetitious litigation of that which is
                essentially the same dispute. Sweeney v. State, 704 N.E.2d 86, 94
                (Ind. 1998). And, a petitioner for post-conviction relief cannot escape
                the effect of claim preclusion merely by using different language to phrase
                an issue and define an alleged error. State v. Holmes, 728 N.E.2d 164,
                168 (Ind. 2000). “[W]here an issue, although differently
                designated, was previously considered and determined upon a
                criminal defendant’s direct appeal, the State may defend against
                defendant’s post-conviction relief petition on grounds of prior
                adjudication or res judicata.” Cambridge v. State, 468 N.E.2d 1047,
                1049 (Ind. 1984) (emphasis in original).


       Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006) (emphasis added).


[28]   Here, Lee’s post-conviction claim that his co-defendant’s lawyer “became a

       second prosecutor” during closing argument is nothing more than a rephrasing

       of his argument on direct appeal; i.e., that his trial should have been severed

       from his co-defendants’ trials. Our Supreme Court considered and rejected that

       argument on direct appeal. Lee, 684 N.E.2d at 1148-49 (holding Lee failed to

       show that he was prejudiced by the testimony and arguments of his co-

       defendants during trial such that the trials should have been separated). The

       post-conviction court did not err in finding that this claim was res judicata.23




       23
          Moreover, as the post-conviction court noted, Lee’s trial counsel “repeatedly moved to sever Lee’s trial
       from that of his co-defendants,” but her motions were unsuccessful. PCR R. Vol. IV at 197. And, of course,
       Lee’s appellate counsel also raised the issue on appeal. Thus, even if the claim were not res judicata, we
       would not find that the post-conviction court erred in denying Lee’s claim of ineffective assistance of trial
       counsel.

       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017                     Page 23 of 27
           9. Failure to object to admission of a firearm because it was obtained pursuant to
              an illegal search

[29]   Lee next asserts that his trial counsel was ineffective because she failed to object

       to the admission of the firearm Lee used in the shootings. He contends that the

       firearm was obtained pursuant to an unconstitutional search because it was

       obtained without a warrant and the person who owned the home where it was

       found had not consented to the search. However, the post-conviction court did

       not err in finding that Lee lacked standing to challenge the search of the home.


[30]   Fourth Amendment rights “are personal and may not be vicariously asserted.”

       Peterson v. State, 674 N.E.2d 528, 532 (Ind. 1996) (quotation and citation

       omitted). Therefore, “[a] defendant aggrieved by an illegal search and seizure

       only through the introduction of damaging evidence secured by the search of a

       third person’s premises has not had any of his Fourth Amendment rights

       infringed.” Rakas v. Illinois, 439 U.S. 128, 134 (1973). The home where the

       police searched and found the firearm Lee used in the shootings was owned by

       the mother of Candilaria Hernandez (“Hernandez”). Lee did not live at the

       home and had no other interest in the home. Therefore, he lacks standing,

       under the Fourth Amendment, to challenge the search of that home or the fruits

       of that search. Id.


[31]   Lee also purports to raise a separate analysis of his trial counsel’s alleged

       ineffectiveness for failing to object to the admission of the firearm under the

       state constitution. Under Article 1, Section 11 of the Indiana Constitution, a

       defendant has standing when, although he had no interest in the premises


       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 24 of 27
       searched, he did have an interest in the property that was found during that

       search. Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008) (“[T]he Indiana

       Constitution provides protection for claimed possessions irrespective of the

       defendant’s interest in the place where the possession was found.”). However,

       Lee provides no record evidence or legal authority relating to this state

       constitutional claim, nor does he provide any cogent argument as to how this

       provision applies to him. Therefore, his claim under Article 1, Section 11 is

       waived. App. R. 46(A)(8)(a); Pierce, 29 N.E.3d at 1267.


[32]   Waiver notwithstanding, as the post-conviction court found, Lee has pointed to

       no evidence that he had any interest in any of the firearms seized at Hernandez’

       mother’s house. PCR R. Vol. IV at 186. Therefore, the post-conviction court

       did not err in finding that Lee had no standing to object, under the Indiana

       Constitution, to the search and seizure of the firearm and that Lee’s counsel

       was not ineffective for failing to make such an objection. Wrinkles, 749 N.E.2d

       at 1192 (holding trial counsel is not ineffective for failing to make an objection

       that would not be sustained).


                    Ineffective Assistance of Appellate Counsel
[33]   Lee also maintains that his appellate counsel was ineffective for failing to raise

       on appeal his trial counsel’s ineffective assistance. Our Supreme Court has

       described the burden a party must carry for a claim of this type:


               When the claim of ineffective assistance is directed at appellate
               counsel for failing fully and properly to raise and support a claim
               of ineffective assistance of trial counsel, a defendant faces a

       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 25 of 27
               compound burden on post[-]conviction. The post[-]conviction
               court must conclude that appellate counsel’s performance was
               deficient and that, but for the deficiency of appellate counsel, trial
               counsel’s performance would have been found deficient and
               prejudicial. Thus, Timberlake’s burden before the post[-]
               conviction court was to establish the two elements of ineffective
               assistance of counsel separately as to both trial and appellate
               counsel. Ben-Yisrayl v. State, 738 N.E.2d 253, 261-62 (Ind.2000).


       Timberlake, 753 N.E.2d at 604.


[34]   Because Lee has failed to show that his trial counsel was ineffective, his claims

       of ineffective assistance of appellate counsel based on a failure to raise trial

       counsel’s alleged deficiency must also fail. Allen v. State, 749 N.E.2d 1158,

       1168-69 (Ind. 2001) (holding that, because claimed errors by trial counsel did

       not in themselves warrant relief, claims of ineffective assistance of appellate

       counsel for failure to raise the alleged trial counsel errors would necessarily fail

       as well). The post-conviction court did not err by concluding that Lee failed to

       meet his burden of proof on this issue.



                                                Conclusion
[35]   Lee has failed to carry his burden of establishing that he is entitled to post-

       conviction relief. The post-conviction court did not err when it found that

       neither Lee’s trial counsel nor his appellate counsel provided ineffective

       assistance to Lee.




       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 26 of 27
[36]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 71A05-1702-PC-326 | December 27, 2017   Page 27 of 27
