Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                                             Jul 22 2013, 6:12 am
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

LINDA G. NICHOLSON                                   JODI KATHRYN STEIN
Deputy Public Defender                               Deputy Attorney General
Indianapolis, Indiana                                Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TONY MAYS,                                           )
                                                     )
        Appellant-Petitioner,                        )
                                                     )
               vs.                                   )      No. 84A04-1301-PC-6
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Respondent.                         )


                       APPEAL FROM THE VIGO SUPERIOR COURT
                           The Honorable John T. Roach, Judge
                              Cause No. 84D01-1001-PC-52


                                            July 22, 2013

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Tony Mays appeals the post-conviction court’s denial of his petition for post-

conviction relief. We affirm.

                                          Issue

       Mays raises one issue, which we restate as whether he received ineffective

assistance of appellate counsel.

                                          Facts

       The facts, as stated in Mays’s direct appeal, follow:

                     In early 2007, Confidential Informant 702 (“CI 702”)
              was arrested on a misdemeanor charge in Vigo County. CI
              702 spoke with Detective Denzil Lewis (“Detective Lewis”)
              about Mays. They agreed that in return for the State not filing
              the misdemeanor charge, CI 702 would cooperate with the
              narcotics investigation of Mays and that she would be paid
              cash for each controlled buy.

                      Prior to each of the four controlled buys, CI 702 was
              tested for drugs, found clean, searched, and given forty
              dollars to buy drugs. The first controlled “buy” occurred on
              March 29, 2007. Detective Lewis listened as CI 702 called
              Mays on Mays’s cell phone. CI 702 asked for “something for
              stress.” Mays replied, “Alright.” Tr. p. 79, State’s Vol. Ex.
              2.

                     CI 702 was outfitted with a video/audio recording
              device that makes a digital recording, also known as the
              “Hawk.” Detective Lewis had used this device hundreds of
              times and could not alter the recording. CI 702 was driven to
              within one-half block of Mays’s location. She walked the rest
              of the way to Mays’s location. After CI 702 met Mays, they
              spoke briefly. Mays then sold CI 702 .40 grams of cocaine
              for forty dollars. CI 702 returned to Detective Lewis and
              gave him the cocaine. Detective Lewis secured the recording.



                                            2
       On April 2, 2007, a second controlled buy occurred.
Detective Lewis and CI 702 followed the same procedure as
during the first controlled buy. Again, Mays sold CI 702 .40
grams of cocaine for forty dollars. CI 702 returned and gave
the cocaine to Detective Lewis and was searched. Detective
Lewis secured the recording.

       The third controlled buy occurred on April 24, 2007.
Detective Lewis and CI 702 followed the same procedure as
during the first controlled buy. CI 702 purchased 1.10 grams
of cocaine in exchange for the buy money. CI 702 returned
with the cocaine to Detective Lewis. Detective Lewis secured
the recording.

       The fourth controlled buy occurred on May 3, 2007.
The same procedures were used during this buy as with the
prior controlled buys. CI 702 met Mays at a motel in Terre
Haute. CI 702 went to a room at that motel and knocked.
She spoke with the occupants of the room as Mays prepared
her cocaine. Mays sold .70 grams of cocaine for fifty dollars
of buy money to CI 702. CI 702 returned to Detective Lewis
with the cocaine. She was searched and Detective Lewis
secured the recording.

       Detective Lewis decided to arrest Mays based on the
four controlled buys. Mays was arrested after he left the
motel room. Detective Lewis then sought a search warrant
for the motel room. After receiving the search warrant, the
motel room was searched revealing the buy money, 32.6
grams of cocaine, baking soda, two firearms, and a digital
scale.

        The State charged Mays with one count of Class A
felony dealing in cocaine, four counts of Class B felony
dealing cocaine, and one count of Class B felony unlawful
possession of a firearm by a serious violent felon. Prior to
trial, Mays moved to suppress the evidence found in the motel
room and for formal disclosure of the confidential
informant’s identity. The trial court denied both motions.

       During the jury trial, the State presented the digital
recordings of the four controlled buys. The State did not call
CI 702 as a witness. During jury deliberations, the jury asked

                              3
              to review the controlled buy recordings but did not have the
              means to do so. Mays objected to the jury’s two requests to
              review the recordings, which the trial court overruled. The
              trial court decided to allow the jury to view the recordings in
              the same manner as viewed during trial, using the State’s
              laptop with a projector. Mays objected to not being present
              during the viewing. After the trial court explained that the
              jury was actively deliberating, Mays did not object.

                     The jury returned guilty verdicts for two counts of
              Class B felony dealing cocaine but not on the one count of
              Class A felony dealing cocaine or the other count of Class B
              felony dealing cocaine. Prior to sentencing, Mays filed a
              motion to set aside the verdicts based upon the jury’s use of
              the State’s laptop to view the recordings. The State objected.
              After a hearing, the trial court denied the motion. The trial
              court sentenced Mays to an aggregate eighteen-year term.

Mays v. State, 907 N.E.2d 128, 130-31 (Ind. Ct. App. 2009), trans. denied.

       Mays filed a direct appeal and argued that: (1) the trial court erred by denying his

motion to compel disclosure of the confidential informant’s identity; (2) the trial court

abused its discretion by admitting the audio/video recordings of the controlled buys

because the confidential informant did not testify at the trial; (3) the trial court erred by

allowing the jury to review the recordings during deliberations outside of Mays’s

presence; and (4) the search warrant was invalid. We rejected Mays’s arguments and

affirmed his convictions. Of particular relevance to this post-conviction proceeding, we

addressed Mays’s argument regarding the admission of the recordings and concluded:

                     Mays’s assertion that in order to introduce the video,
              the State must have called CI 702 to testify that the video
              accurately represented what occurred is patently incorrect.
              Instead, pursuant to the “silent witness” theory, “videotapes
              may be admitted as substantive evidence, but ‘there must be a
              strong showing of [the videotape’s] authenticity and
              competency.’” McHenry v. State, 820 N.E.2d 124, 128 (Ind.

                                             4
             2005) (quoting Edwards v. State, 762 N.E.2d 128, 136 (Ind.
             Ct. App. 2002), trans. denied). In addition, there must be a
             showing that the videotape has not been altered. See
             Edwards, 762 N.E.2d at 136; Bergner v. State, 397 N.E.2d
             1012, 1017 (Ind. Ct. App. 1979) (discussing photographs).
             “In cases involving photographs [or videos] taken by
             automatic cameras . . . there should be evidence as to how and
             when the camera was loaded, how frequently the camera was
             activated, when the photographs were taken, and the
             processing and chain of custody of the film after its removal
             from the camera.” Kindred v. State, 524 N.E.2d 279, 298
             (Ind. 1988) (quoting Bergner, 397 N.E.2d at 1017). In regard
             to this last requirement, “the State is not required to exclude
             every reasonable possibility of tampering, but rather must
             only provide reasonable assurance that an exhibit has passed
             through various hands in an undisturbed condition.” Id. at
             298-99.

                    Here, Officer Lewis testified regarding the nature of
             the Hawk, that he personally prepared the Hawk for
             recording, that he personally took the Hawk and downloaded
             the video onto his computer and copied the video onto the CD
             introduced into evidence, that the video contained on the CD
             was consistent with what he knew to have taken place, and
             that he had no reason to believe that the CD had been altered
             or tampered with in any way. We conclude that the State laid
             a proper foundation for the admission of the video evidence.
             See Kindred, 524 N.E.2d at 298-99. The trial court did not
             abuse its discretion in admitting the audio-visual evidence.

Id. at 131-32. Our supreme court denied transfer.

      Mays then filed a pro se petition for post-conviction relief in January 2010. In

April 2012, counsel filed an amended petition for post-conviction relief arguing that

Mays received ineffective assistance of appellate counsel because appellate counsel had

failed to argue the admission of the recordings and Detective Lewis’s testimony without

the confidential informant’s testimony violated Crawford v. Washington, 541 U.S. 36,

124 S. Ct. 1354 (2004).     At the post-conviction hearing, Mays’s appellate counsel

                                           5
testified that he did not believe that Crawford was applicable because the recordings were

not “testimonial evidence.” P-C.R. Tr. p. 14. The post-conviction court denied Mays’s

petition for post-conviction relief. Its findings of fact and conclusions thereon provide in

part:

                      Petitioner’s claim for relief is that the CI did not testify
              at trial, therefore, when the audio-visual recordings were
              admitted into evidence, petitioner was denied his
              constitutional right to cross-examine and confront the CI, and
              had appellate counsel raised Crawford. v. Washington in
              support of his argument on appeal, the result would have been
              different. There are several dispositive flaws with this
              position.

                     First, under the “silent witness” rule, the testimony of
              the CI was not necessary to introduce the audio-visual
              recordings. . . .

                     More importantly, the audio-visual evidence presented
              against Petitioner at trial was not testimony by the CI. The
              Confrontation Clause is concerned with witnesses against the
              accused—those who “bear testimony” against a criminal
              defendant. Crawford v. Washington, 541 U.S. 36, 51 (2004);
              Cranston v. State, 936 N.E.2d 342, 344-345 (Ind. Ct. App.
              2010). While petitioner is absolutely correct that under
              Crawford the constitutional right to confrontation precludes
              the admission of testimonial substantive evidence unless the
              declarant is unavailable and the accused has had a prior
              opportunity to cross examine the declarant, petitioner is just
              as equally incorrect in his assertion that Crawford applies,
              and provides ground for relief, in this matter.

                     Petitioner’s case does not fall squarely within the
              proscriptions of Crawford because the CI did not testify
              against petitioner via the audio-visual recordings of the
              controlled buy transactions which convicted him. These
              recordings show petitioner selling drugs, they do not contain
              statements of the CI used as evidence of petitioner’s crimes.
              While the CI was certainly involved in the transactions as the
              buyer, this case is not one in which the CI’s testimony about

                                               6
             her involvement is necessary. The actions of petitioner,
             coupled with the authenticity and accuracy of the recordings,
             are the substance of the evidence that convicted petitioner,
             not anything the CI said, or did, on the electronic recordings.

                     Petitioner is also correct that Crawford reasoned that
             statements made for use at trial are “testimonial” and
             therefore subject to confrontation and cross examination
             rights, but, again, petitioner misapplies Crawford. It was not
             the statements of the CI which were procured with an eye
             toward use at trial. The damning “statements” introduced
             into evidence were petitioner’s own deeds and words
             displayed during his drug sales to the CI. Having the CI
             present at trial, or available and subject to cross-examination
             before trial, would not have tested anything. While having
             the CI testify would have supported defense counsel’s effort
             to denigrate the investigation because the jury, in his words,
             would not like the police “sending a prostitute” at people—a
             theory he confirmed during the PCR hearing—the fact
             remains that the veracity of the videotaped evidence could not
             be confirmed nor dispelled by cross examination of the CI.

App. pp. 72-74.    The post-conviction court noted that the confidential informant’s

testimony “merely gave context to the transactions, and, as such, were not hearsay.” Id.

at 73 n.1. Mays now appeals.

                                        Analysis

      Mays challenges the denial of his petition for post-conviction relief. A court that

hears a post-conviction claim must make findings of fact and conclusions of law on all

issues presented in the petition. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (citing

Ind. Post-Conviction Rule 1(6)). “The findings must be supported by facts and the

conclusions must be supported by the law.” Id. Our review on appeal is limited to these

findings and conclusions. Id. Because the petitioner bears the burden of proof in the

post-conviction court, an unsuccessful petitioner appeals from a negative judgment. Id.

                                            7
(citing P-C.R. 1(5)). “A petitioner appealing from a negative judgment must show that

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

that reached by the trial court.’” Id. (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind.

2001), cert. denied). Under this standard of review, “[we] will disturb a post-conviction

court’s decision as being contrary to law only where the evidence is without conflict and

leads to but one conclusion, and the post-conviction court has reached the opposite

conclusion.” Id.

       Mays argues that he received ineffective assistance of appellate counsel. To

prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both

that his or her counsel’s performance was deficient and that the petitioner was prejudiced

by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)

(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert.

denied). A counsel’s performance is deficient if it falls below an objective standard of

reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816,

824 (Ind. 2002). To meet the appropriate test for prejudice, the petitioner 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. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.

Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State,

845 N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be

resolved by a prejudice inquiry alone. Id.



                                              8
       Mays argues that his appellate counsel was ineffective for failing to raise

Crawford with respect to the recordings on direct appeal. Because the strategic decision

regarding which issues to raise on appeal is one of the most important decisions to be

made by appellate counsel, appellate counsel’s failure to raise a specific issue on direct

appeal rarely constitutes ineffective assistance. See Taylor v. State, 717 N.E.2d 90, 94

(Ind. 1999). The Indiana Supreme Court has adopted a two-part test to evaluate the

deficiency prong of these claims: (1) whether the unraised issues are significant and

obvious from the face of the record; and (2) whether the unraised issues are “clearly

stronger” than the raised issues. Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert.

denied. If this analysis demonstrates deficient performance by counsel, the court then

examines whether the issues that appellate counsel failed to raise “would have been

clearly more likely to result in reversal or an order for a new trial.” Id.

       We first note that Mays incorrectly argues that his trial counsel raised Crawford

with respect to the recordings. Mays’s citation to the record in support of this assertion

does not pertain to the confidential informant or the admission of the recording.

Consequently, Mays’s appellate counsel would have been required to establish that the

admission of the recordings resulted in fundamental error. See, e.g., Hoglund v. State,

962 N.E.2d 1230, 1239 (Ind. 2012) (“In order to be fundamental, the error must represent

a blatant violation of basic principles rendering the trial unfair to the defendant and

thereby depriving the defendant of fundamental due process.”). Mays’s argument fails

because he cannot demonstrate error in the admission of the recordings, much less

fundamental error.

                                               9
       The Sixth Amendment to the United States Constitution, made applicable to the

States via the Fourteenth Amendment, states: “In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.

amend. VI. A witness’s testimony against a defendant is thus inadmissible unless the

witness appears at trial or, if the witness is unavailable, the defendant had a prior

opportunity for cross-examination.          Crawford, 541 U.S. at 59, 124 S. Ct. at 1369.

Crawford clarified, however, that the Confrontation Clause “does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter

asserted.” Id. at 59 n.9, 124 S. Ct. at 1369.

       Mays argues that the recordings were testimonial.1                However, this court and

numerous others have rejected the same argument. In Lehman v. State, 926 N.E.2d 35,

38 (Ind. Ct. App. 2010), trans. denied, we held that a confidential informant’s recorded

statements during a controlled buy were not introduced for the truth of the matter asserted

and, therefore, were not hearsay.2 Shortly thereafter, this court decided Williams v. State,

930 N.E.2d 602, 607-10 (Ind. Ct. App. 2010), trans. denied, in which the defendant also

argued that the admission of a confidential informant’s recorded statements during a

controlled buy violated his confrontation rights. We again held that the confidential

informant’s recorded statements during a controlled buy were not offered by the State to


1
  Mays seems to argue that the entire video should have been excluded, not just the confidential
informant’s statements. Mays does not specify the offending statements of the confidential informant in
the recordings. Further, Mays makes no argument regarding his own statements on the video.
2
  The Lehman court held that the informant’s description of the controlled buy at the beginning and end
of the tape qualified as testimonial and should have been excluded pursuant to Crawford. Lehman, 926
N.E.2d at 40. However, the court concluded that the error was harmless.
                                                  10
prove the truth of the confidential informant’s statements. Williams, 930 N.E.2d at 608.

Further, we noted that the Confrontation Clause does not apply to nonhearsay statements,

even if those statements are testimonial. Id. at 609.

        The Seventh Circuit has reached the same conclusion. In U.S. v. Tolliver, 454

F.3d 660, 664-66 (7th Cir. 2006), cert. denied, the defendant challenged the admissibility

of audiotapes of a controlled buy where the confidential informant did not testify. The

Seventh Circuit noted that the defendant’s statements on the tapes were admissions by a

party-opponent and, as such, were not hearsay under the Federal Rules of Evidence.

Consequently, Crawford did not prohibit the admission of the defendant’s statements on

the tapes. Similarly, the court held that the confidential informant’s statements merely

put the defendant’s “admissions on the tapes into context, making the admissions

intelligible for the jury.” Tolliver, 454 F.3d at 666. The court noted that “[s]tatements

providing context for other admissible statements are not hearsay because they are not

offered for their truth.” Id. Consequently, the confidential informant’s statements were

not hearsay and did not violate Crawford or the Confrontation Clause.3 Id.; see also U.S.



3
  Mays cites three cases for the proposition that the confidential informant’s statements were inadmissible
under Crawford. In U.S. v. Pugh, 405 F.3d 390, 399-400 (6th Cir. 2005), the court held that a police
officer’s testimony regarding an informant’s out-of-court identification of the defendant from a still
picture taken from a surveillance video was inadmissible under Crawford. The court concluded that the
identification was testimonial and offered for the truth of the matter asserted. In People v. Pirwani, 14
Cal.Rptr.3d 673, 681-85 (Ca. Ct. App. 2004), the court held that a victim’s videotaped statement to police
regarding the crime was inadmissible under Crawford because it was testimonial hearsay. The victim was
unavailable to testify at trial because she had died. In Jones v. Basinger, 635 F.3d 1030, 1040-43 (7th Cir.
2011), police officers testified regarding an informant’s tip that led them to a murder suspect. The court
concluded that the statement was double hearsay, made for the purpose of “helping bring to justice the
people responsible for the murders,” and used to establish the truth of the matter asserted. Id. at 1041.
Consequently, it was inadmissible under Crawford. These three decisions are distinguishable. In each of
these cases, the statements at issue were substantive evidence, offered to prove the truth of the matter
                                                    11
v. Foster, 701 F.3d 1142, 1150-53 (7th Cir. 2012) (holding that a non-testifying

confidential informant’s recorded statements during a controlled buy were not hearsay

and did not implicate the Confrontation Clause).

         We conclude that, even if Mays’s appellate counsel had raised Crawford

regarding admission of the recordings, the issue would not have been clearly more likely

to result in reversal or an order for a new trial. The confidential informant’s statements in

the recordings were not offered to prove the truth of the matter and were not hearsay.

The admission of the recordings did not violate Crawford. Consequently, Mays has

failed to demonstrate ineffective assistance of appellate counsel, and the post-conviction

court properly denied his petition for post-conviction relief.

                                           Conclusion

       Mays’s ineffective assistance of appellate counsel claim fails, and the post-

conviction court properly denied his petition. We affirm.

       Affirmed.

NAJAM, J., and BAILEY, J., concur.




asserted. The confidential informant’s statements here were merely offered to give context to Mays’s
statements and were not offered for the truth of the matter asserted.


                                                12
