MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                May 14 2018, 11:03 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael C. Keating                                       Curtis T. Hill, Jr.
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana                                      George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Derek Franklin Williams,                                 May 14, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         14A04-1708-PC-1964
        v.                                               Appeal from the Daviess Superior
                                                         Court
State of Indiana,                                        The Honorable Dean A. Sobecki,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         14D01-1406-PC-611



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018               Page 1 of 19
[1]   Derek Franklin Williams appeals the denial of his petition for post-conviction

      relief. Williams argues that trial counsel was ineffective for failing to object to

      certain testimony, sufficiently cross-examine a witness, object to the admission

      of a photograph into evidence, raise a claim of self-defense or voluntary

      manslaughter, and object to statements made by the prosecutor during closing

      argument. Finding no error, we affirm.


                                                    Facts
[2]   The underlying facts, as described by this Court in Williams’s direct appeal, are

      as follows:


              Williams and the victim, Kim Williams, were married in 1995
              and two children were born of the marriage. T.W. was born in
              1997, and R.W. was born in 2004. . . .

              . . . Near the end of January 2011, Williams, who was working in
              Hawaii, learned that Kim had filed a petition for the dissolution
              of their marriage.

              Williams told his work supervisor, Scott Greenan about his
              concern that the divorce would result in Williams losing some of
              his retirement money. The week of Kim’s death, Williams had
              several conversations with Greenan about the financial aspects of
              the divorce. Greenan observed that Williams seemed bothered
              quite a bit and was upset about the matter. . . .

              Williams also discussed the topic [of] his impending dissolution
              with Kevin Chase, a coworker. . . . One day after work,
              Williams told Chase that it would “just be easier to kill the
              bitch.” Id. at 560.

              On the evening of February 3, 2011, T.W. and Kim watched
              several television shows together while R.W. was already asleep

      Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 2 of 19
        in bed. At approximately, 8:40 p.m., Williams came home and
        went to his office in the family’s home. T.W. went to bed
        sometime between 9:00 p.m. and 9:30 p.m. At approximately,
        12:40 a.m., T.W. awoke to hear his mother screaming and
        crying, in a manner which he had never before heard, and which
        was indicative of the fact that she was in a great deal of pain.
        T.W. heard Kim ask “Why are you doing this?” Transcript at
        317. Williams responded in an angry voice, “Does that
        hurt?” Id. T.W. arose from bed to use the bathroom and then
        returned to his bed. A few minutes after lying back down, T.W.
        heard the sound of four gunshots.

        T.W. got out of bed, turned on the lights, and walked to the area
        between the living room and the kitchen. He observed his
        mother’s motionless body on the floor next to the fireplace and
        could tell that she had been shot. Williams was rolling around
        on the floor and it appeared to T.W. that Williams had shot
        himself. T.W. cursed at his father and asked him why he would
        do something like that. He then ran to the kitchen, and grabbed
        Kim’s phone. On his way back to his bedroom, T.W.
        encountered R.W. in the hallway. R.W. asked T.W. why he was
        yelling. T.W. placed R.W. in his room and dialed 911.

                                                ***

        [When sheriff’s deputies responded and entered the home, they]
        observed that Williams was covered in blood and looked as if his
        face was coming apart. Williams assumed a shooter’s stance and
        yelled, “Bang!” Transcript at 227. Williams then disappeared
        before reappearing and engaging in the same behavior. Williams
        then approached Deputy Bledsoe at a rapid pace and grabbed
        him. During the ensuing struggle, Deputy Bledsoe attempted to
        subdue Williams and prevent him from grabbing the sidearm.
        With Deputy Wise’s help, Deputy Bledsoe was able to restrain
        Williams.

        Deputy Bledsoe asked Williams, “Who did this?” Transcript at
        236. Williams motioned toward the living room and responded,

Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 3 of 19
        “Ask her.” Id. Deputy Bledsoe observed Kim’s body for the first
        time when he looked in the direction indicated by Williams.
        Kim was bleeding from her face. Deputy Bledsoe then asked
        Williams where the gun was located. Williams again responded,
        “Ask her.” Transcript at 237. . . .

                                                ***

        During the ensuing police investigation, Williams’s Glock
        handgun was found in the living room and divorce papers were
        found in the passenger seat of Williams’s car. A forensic DNA
        analyst from the Indiana State Police Department determined
        that the blood and DNA found at the scene belonged to Williams
        and Kim. A bullet retrieved from the ceiling rafters had
        Williams’s DNA on it from passing through his face when he
        was shot. A Naval Criminal Investigative Service Special Agent,
        who worked as a forensic consultant on the case, concluded that
        Kim was lying down when she was shot.

                                                ***

        During the forensic pathologist’s examination of Kim, he found
        that she had sustained four gunshot wounds, including two
        wounds to her face as well as gunshot wounds on her arm. The
        pathologist concluded from the location of the wounds that Kim
        had been shot first in the arm while she was in a defensive
        position, and that when the bullet exited her arm, it struck her
        face. That bullet then entered Kim's brain, leaving her
        incapacitated and unable to take any conscious action. Kim was
        then shot again in the face from less than a foot away. The
        pathologist concluded that Kim died as a result of a gunshot to
        her face, which caused the bullet to pass through her brain.

        The State charged Williams with murder on February 22,
        2011. . . . At the conclusion of the jury trial, Williams was found
        guilty of murder.




Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 4 of 19
      Williams v. State, No. 14A01-1205-CR-201, at *1-*3 (Ind. Ct. App. Mar. 19,

      2013). The trial court sentenced Williams to sixty-five years imprisonment.

      Williams filed a direct appeal, arguing that there was an error with respect to

      jury instructions and that the sentence was inappropriate. This Court affirmed

      the conviction and sentence. Id. at *7.


[3]   On June 20, 2014, Williams filed a pro se petition for post-conviction relief,

      which was later amended by counsel. In pertinent part, Williams argued that

      he received the ineffective assistance of trial counsel. Following a hearing, the

      post-conviction court denied Williams’s petition on August 1, 2017. Williams

      now appeals.


                                   Discussion and Decision
                                     I. Standard of Review
[4]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. 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. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post–Conviction
      Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 5 of 19
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[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).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


[5]   A claim of ineffective assistance of trial counsel requires a showing that:

      (1) counsel’s performance was deficient by falling below an objective standard

      of reasonableness based on prevailing professional norms; and (2) counsel’s

      performance prejudiced the defendant such that “‘there is a reasonable

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

      proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

      (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

      reasonable probability arises when there is a ‘probability sufficient to undermine

      confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

      2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

      prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

      Ct. App. 2012).


                             II. Assistance of Trial Counsel
[6]   Williams argues that his trial counsel was ineffective in the following respects:

      (1) failing to object to certain questions asked of T.W. on direct examination

      and failing to sufficiently cross-examine T.W.; (2) failing to object to the

      testimony of the pathologist; (3) failing to object to the introduction of a
      Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 6 of 19
      photograph into evidence; (4) failing to raise claims of self-defense or voluntary

      manslaughter; and (5) failing to object to comments made by the prosecutor

      during closing arguments.


                                 A. Dealing with Witnesses
[7]   Williams first contends that trial counsel was ineffective for the way in which

      she handled T.W. and the pathologist as witnesses. Specifically, Williams

      argues that counsel should have objected to several questions asked of T.W. on

      direct examination because they were leading, irrelevant, or called for an

      opinion; that counsel should have asked more than five questions of T.W. on

      cross-examination; and that counsel should have objected to questions asked of

      the pathologist on redirect examination.


[8]   To establish ineffective assistance for failure to object, the petitioner must

      establish that the objection would have been sustained and that the petitioner

      was prejudiced by the failure to object. Law v. State, 797 N.E.2d 1157, 1164

      (Ind. Ct. App. 2003). Additionally, “[i]t is well settled that the nature and

      extent of cross-examination is a matter of strategy delegated to trial counsel.”

      Myers v. State, 33 N.E.3d 1077, 1101 (Ind. Ct. App. 2015).


                             1. Direct Examination of T.W.
[9]   Williams first directs our attention to the following discussion that occurred

      during the direct examination of T.W.:


              State: Tell the jury a little bit about your mom.


      Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 7 of 19
               T.W.: She was a—she loved tending to the garden, she loved
                     cats, she loved me and [R.W.] with all her heart, she put
                     us before anything else.

               State: Is there anything else she would like to do?

               T.W.: Uh . . .

               State: Sorority?

               T.W.: Yes, she was in a sorority. She helped out at Griffith
                     Elementary as much as she could and at my school,
                     Washington Junior High.


       Trial Tr. Vol. II p. 307. Williams contends that his trial counsel should have

       objected to this line of questioning because it was irrelevant and its “obvious

       purpose was to bolster the image of the decedent in the eyes of a jury, thereby

       prejudicing” Williams. Appellant’s Br. p. 12. Williams does not explain,

       however, how he was prejudiced by the jury learning that T.W.’s mother had

       common interests such as gardening, cats, and her children. See Elliott v. State,

       630 N.E.2d 202, 204 (Ind. 1994) (holding that testimony from murder victim’s

       mother regarding her son’s background was relevant and properly admitted).

       We disagree that this testimony prejudiced Williams and find that counsel was

       not ineffective for failing to object to it.


[10]   Next, Williams points to the following discussions during direct examination:


               State: Okay, is [your father] saying that in a sad voice or in an
                      angry voice?

               T.W.: In an anger rage voice.

               State: A rage voice?
       Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 8 of 19
        T.W.: Yeah, he was mad.

                                                ***

        State: Okay, and I’m sorry, so you see your mom laying here—
               dad, what’s he doing?

        T.W.: He’s rolling around with his feet in like a choppy manner.

        State: What does it look like to you?

        T.W.: Uh, him rolling in like a worm, I would say.

        State: Is he . . .

        T.W.: He’s gargling, you know.

        State: Does it appear that he has . . .

        T.W.: Yes, it appears that he has shot himself.

                                                ***

        State: All right. [T.W.], based on what you observed and you
        heard . . . , I want you to look at the jury and you tell them what
        happened.

        T.W.: My dad . . .

        State: Just say it, [T.W.]

        T.W.: My dad shot and killed my mom.

        State: And, then, what did he do to himself?

        T.W.: And, shot himself.


Trial Tr. Vol. II p. 317-18, 325. Williams argues that trial counsel should have

objected to these questions because it was inadmissible lay witness testimony.



Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 9 of 19
[11]   Opinion testimony of a lay witness is admissible if the testimony is “(a)

       rationally based on the perception of the witness and (b) helpful to a clear

       understanding of the witness’s testimony or the determination of a fact in

       issue.” Ind. Evidence Rule 701. The requirement that the opinion be rationally

       based on perception “‘means simply that the opinion must be one that a

       reasonable person normally could form from the perceived facts.’” Mariscal v.

       State, 687 N.E.2d 378, 380 (Ind. Ct. App. 1997) (quoting Kent v. State, 675

       N.E.2d 332, 338 (Ind. 1996)). Here, T.W.’s perception of what happened was

       one that a reasonable person could normally form from the circumstances.

       Based on what T.W. heard before the shooting and his observations of his

       parents immediately after the shooting, he was clearly in a position to offer a

       rational and helpful opinion on the nature of the shooting. We can only

       conclude that even if counsel had objected to these questions, her objections

       would have been overruled. Therefore, she was not ineffective for this reason.


[12]   Finally, Williams points us to the following questions asked of T.W. during

       direct examination:


               State: So, [R.W.], did he come out of his bedroom?

               T.W.: Yeah, he came out of his room and stood right there.

               State: And, so, what did you do with him?

               T.W.: I hit him as hard as I could to get him in my arm and pick
                     him up.

               State: Why?



       Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 10 of 19
               T.W.: Because I wanted to get to get [sic] out of here as fast as I
                     could.

               State: Why?

               T.W.: To call 911.

               State: But, why? Why did you want to get out of here as fast as
                      you could?

               T.W.: I wanted to get to my room.

               State: Why?

               T.W.: So I could call 911.

               State: Is it safe to say you didn’t want [R.W.] to see your mom
                      like that?

               T.W.: Yes, exactly, yes.


       Trial Tr. Vol. II p. 321. Williams argues that trial counsel should have objected

       to this testimony because the questions were leading, but he does not articulate

       why the admission of this testimony was prejudicial to him. Moreover, even if

       counsel had objected, and the objection had been sustained, the prosecutor

       would merely have rephrased the question. In other words, this evidence

       would have been admitted even if an objection had been made. We find no

       ineffective assistance on this basis.


                              2. Cross-Examination of T.W.
[13]   Williams next complains that trial counsel did not conduct a sufficient cross-

       examination. Specifically, he argues that counsel should have questioned T.W.

       about certain allegedly inconsistent statements T.W. had made during his

       Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 11 of 19
       pretrial deposition. At the post-conviction hearing, trial counsel explained that

       the jury appeared “incredibly sympathetic” towards T.W. and that a

       “hardcore” cross-examination would have alienated the jury against her and

       Williams. PCR Tr. p. 34. In counsel’s opinion, the faster she got T.W. off the

       witness stand, the better. She believed that it “was better for [Williams] to

       come off as a caring father who didn’t want to put his son through a lot than it

       was for me to make my objections.” Id. at 55. Counsel’s primary goal for

       T.W.’s testimony was to elicit the fact that he did not actually see what had

       occurred, and she achieved that goal. We find that this strategy was eminently

       reasonable and decline to second-guess it. We do not find counsel ineffective in

       this regard.


                                             3. Pathologist
[14]   Next, Williams argues that trial counsel should have objected to the following

       discussion that occurred during the redirect examination of the forensic

       pathologist:


               State:           Doctor, since this isn’t a suicide or an accident, how
                                did you rule it?

               Doctor:          Well, the coroner, actually, determines the—which
                                of the five choice [sic] of death certificate, but it
                                would be my opinion this is a homicide.

                                                       ***

               State:           How did you characterize the second shot in your
                                report?

               Doctor:          It’s a very close range, non contact gunshot wound.
       Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 12 of 19
               State:           But, in light of the first shot, how did you
                                characterize it, what did you say it was for?

               Doctor:          Well, I—given the very close range and the nature
                                of one gunshot to the head, or face, had—we have
                                to say the second shot is to make sure she is
                                finished.


       Trial Tr. Vol. II p. 377-78. Williams contends that by saying that the cause of

       the victim’s death was “homicide,” the pathologist impermissibly testified

       regarding Williams’s guilt. He also contends that by saying the purpose of the

       second shot was to make sure the victim was “finished,” the pathologist

       impermissibly testified as to Williams’s intent. See Ind. Evidence Rule 704(B)

       (witnesses may not testify to opinions regarding the defendant’s intent, guilt, or

       innocence in a criminal case).


[15]   As to the use of the term “homicide,” our Supreme Court has noted that a

       pathologist is allowed to testify that the manner of the victim’s death “was

       homicide, among other opinions he formed independently.” Ackerman v. State,

       51 N.E.3d 171, 189 (Ind. 2016). We agree with the State that from a lay

       person’s point of view, the term “homicide” simply means that one person has

       killed another. Consequently, the pathologist’s use of this term was not

       impermissible, nor did it prejudice Williams.


[16]   As to the pathologist’s testimony regarding the purpose of the second shot,

       multiple panels of this Court have found that expert testimony regarding the

       intent of a person committing the crime at issue is admissible so long as the

       expert does not testify that the defendant is the one who committed the crime.
       Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 13 of 19
       See, e.g., Dexter v. State, 945 N.E.2d 220, 222 (Ind. Ct. App. 2011) (permissible

       for physician to testify that trauma to minor’s head was “most likely an abusive

       head trauma” because the witness did not testify that she believed the defendant

       was responsible), summarily aff’d in relevant part, 959 N.E.2d 235 (Ind. 2012);

       Julian v. State, 811 N.E.2d 392, 400 (Ind. Ct. App. 2004) (permissible for an

       arson investigator to testify that the fire was set intentionally because

       investigator did not testify that the defendant intended to set the fire). Here,

       likewise, the pathologist did not testify that he believed that Williams was

       responsible for the victim’s injuries and death. Therefore, any objection would

       have been overruled. We find no ineffective assistance on this basis.


                                             B. Photograph
[17]   Williams next argues that trial counsel should have objected to the admission of

       a photograph of the victim, her children, and their two dogs. According to

       Williams, this evidence was unduly prejudicial.


[18]   At the post-conviction hearing, trial counsel explained that she had challenged

       the admissibility of the photograph before trial, but the trial court had denied

       her request to have it excluded. When asked why she did not renew her

       objection at trial, counsel testified that she generally does not object in front of a

       jury when she knows that she is “going to get overruled unless I think it’s going

       to really help to say it, and I didn’t think that was going to help with that.”

       PCR Tr. p. 43. We find that this was a reasonable strategic decision and

       decline to second-guess it. See Curtis v. State, 905 N.E.2d 410, 418 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 14 of 19
       App. 2009) (holding that “‘counsel cannot be faulted for failing to make an

       objection which had no hope of success and which might have the adverse

       effect before the jury of emphasizing the admissibility of [the evidence]’”)

       (quoting Garrett v. State, 602 N.E.2d 139, 141 (Ind. 1992)).


                      C. Self-Defense/Voluntary Manslaughter
[19]   Next, Williams argues that trial counsel was ineffective for failing to raise a

       claim of self-defense or voluntary manslaughter. In fact, counsel did attempt to

       argue that Williams was guilty of voluntary manslaughter, but the trial court

       sustained the State’s objection that no evidence of sudden heat had been

       presented. According to Williams, trial counsel should have called him as a

       witness, in which case such evidence would have been in the record.


[20]   With respect to a claim of self-defense, the pathologist concluded that the

       victim was first shot in the arm, when she had been in a defensive position, and

       that when the bullet exited her arm, it hit her face and entered her brain, leaving

       her incapacitated and unable to take any conscious action. She was then shot

       again, in the face, from less than a foot away. This testimony, alone, made any

       claim of self-defense untenable, and trial counsel was not ineffective for failing

       to pursue this strategy.1




       1
        We also note that if Williams had pursued this strategy, the State could have introduced into evidence a jail
       phone call in which Williams’s statements regarding the incident were not consistent with any claim that he
       acted in self-defense.

       Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018              Page 15 of 19
[21]   With regard to voluntary manslaughter, Williams admitted at the post-

       conviction hearing that he did not want to testify that he voluntarily killed the

       victim while acting under sudden heat. Therefore, there is no reason to believe

       that calling him to testify would have supported a claim that he committed

       voluntary manslaughter instead of murder. And even if he had testified that he

       acted in sudden heat, the State could have introduced a jail phone call into

       evidence in which Williams described the incident in terms inconsistent with a

       claim of sudden heat. Finally, trial counsel testified that Williams gave her

       several different versions of the incident over the course of her representation of

       him, and she therefore had a very real concern about how his testimony would

       hold up under cross-examination. Under these circumstances, we do not find

       that counsel was ineffective for failing to pursue a claim of voluntary

       manslaughter.2


                                       D. Closing Arguments
[22]   Finally, Williams argues that counsel was ineffective for failing to object to the

       following statements made by the prosecutor during closing argument:


               He can’t even hold it in even as he is being cuffed and he says,
               ask her, ask her, ask the bitch, right?



       2
         Williams attempts to make a somewhat undeveloped and unclear argument that counsel’s defense strategy
       as a whole was “inconsistent and erratic,” reply br. p. 14, complaining that while counsel argued that the
       State had failed to prove knowledge or intent, she also acknowledged that he had shot his wife twice and then
       shot himself. In our view, counsel did the best she could with a client whose version of events changed
       several times, compelling eye witness testimony from his son and responding officers, and damning physical
       evidence and expert testimony. Under these circumstances, we do not find that her defense strategy as a
       whole was unreasonable or ineffective.

       Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018            Page 16 of 19
                                                       ***

               You know, one of [the victim’s] final acts might have been to
               hide that gun because it landed right behind her head and he
               couldn’t find it.

                                                       ***

               I don’t want you to remember her like this, I want you to
               remember her like this, on a good day, with her boys beside her,
               and her dogs, on a beautiful Easter Sunday, and I want you to be
               able to say, I want you to think about this, when it was my turn,
               okay, when the responsibility was mine, and I saw the evidence,
               to convict a man of murder, I was strong enough and I was smart
               enough, and I did that very thing. Remember her like this. You
               can’t put her back in this picture, folks, you can’t do that, you
               can’t bring her back, but you can say, not me, I did right by [the
               victim], a woman I never knew.


       Trial Tr. Vol. III p. 707, 712. Williams argues that the first and second

       statements do not reflect the evidence introduced at trial and that the third

       statement urged the jury to convict Williams for reasons other than his guilt.

       To prove ineffective assistance for failure to object during closing argument, the

       defendant must prove that his objections would have been sustained, that the

       failure to object was unreasonable, and that he was prejudiced thereby. Potter v.

       State, 684 N.E.2d 1127, 1134 (Ind. 1997).


[23]   With respect to the first statement made by the prosecutor, the record reflects

       that a deputy testified that when he asked Williams what had happened,

       Williams twice told the deputy to “[a]sk her.” Trial Tr. Vol. II p. 236-37.

       Williams had also told his coworker shortly before the murder that it would


       Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 17 of 19
       “just be easier to kill the bitch.” Id. at 560. Therefore, while it is true that

       Williams did not refer to the victim as a “bitch” while being handcuffed, it is

       also true that he did refer to her as such shortly before killing her. While the

       statement by the prosecutor may have been an inartful combination of

       Williams’s statements on two different occasions, it was, in fact, based on

       evidence in the record. Therefore, any objection would have been overruled.


[24]   With respect to the second statement, it is true that the pathologist testified that

       the victim would have been incapable of any voluntary movement, such as

       hiding the gun, after being shot the first time. The prosecutor, however, did not

       claim that the victim had intentionally hidden the gun. It is reasonable to infer

       that the State was merely referring to the fact that it was fortuitous for the

       deputies that the victim’s body hid the gun from Williams as the deputies

       entered the house. But even if the prosecutor was referring to a conscious act

       committed by the victim, Williams fails to show how he could have been

       prejudiced by a reference to what she might have done after she had already

       been shot twice in the face. Furthermore, the trial court instructed the jury in

       the final jury instructions that “[s]tatements made by the attorneys are not

       evidence.” Direct Appeal Appellant’s App. Vol. III p. 621; see also, e.g., Surber v.

       State, 884 N.E.2d 856, 866 (Ind. Ct. App. 2008) (even if prosecutor’s statements

       during closing argument amounted to misconduct, jury instruction that attorney

       statements are not evidence mitigated against a finding of prejudice). Under

       these circumstances, we find that trial counsel was not ineffective for failing to

       object to this statement.


       Court of Appeals of Indiana | Memorandum Decision 14A04-1708-PC-1964 | May 14, 2018   Page 18 of 19
[25]   As for the third statement, Williams does not develop a substantial argument as

       to why counsel was ineffective for failing to object to it. Instead, he makes a

       conclusory statement that these comments “urged the jury to convict [Williams]

       for reasons other than his guilt.” Appellant’s Br. p. 16. We agree with the State

       that when viewed in context, this statement amounts to little more than a

       request that the jury convict Williams based on the evidence that he committed

       murder. See Hand v. State, 863 N.E.2d 386, 396 (Ind. Ct. App. 2007) (where

       prosecutor’s comments indicated “that the jury should convict [the defendant]

       for [the victim], her family, and the community as a whole, the gravamen of

       those comments was that the evidence presented at trial supported the State’s

       charges and, therefore, [the defendant] should be held accountable for his

       actions and convicted”). Williams has failed to show that it was unreasonable

       for trial counsel to refrain from objecting to this statement or that he was

       prejudiced thereby. In other words, we do not find trial counsel ineffective for

       failing to object to this statement.


[26]   Finally, Williams argues that the cumulative effect of all the alleged instances of

       misconduct amounts to reversible error. As we have found no error on any of

       the grounds raised by Williams, we do not find that the cumulative effect of

       these instances amounts to any error, let alone reversible error.


[27]   The judgment of the post-conviction court is affirmed.


       Kirsch, J., and Bradford, J., concur.



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