FOR PUBLICATION
                                                              Sep 30 2013, 8:28 am




ATTORNEYS FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

THOMAS W. VANES                                   GREGORY F. ZOELLER
Merrillville, Indiana                             Attorney General of Indiana

MARK A. BATES                                     BRIAN REITZ
Schererville, Indiana                             Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVID M. GREEN,                                   )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
               vs.                                )      No. 45A03-1210-PC-418
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                        APPEAL FROM LAKE SUPERIOR COURT
                        The Honorable Thomas P. Stefaniak, Jr., Judge
                               Cause No. 45G04-0905-PC-4


                                    September 30, 2013

                               OPINION - FOR PUBLICATION

MAY, Judge
        David M. Green appeals the denial of his petition for post-conviction relief. He

argues his trial counsel was ineffective because counsel did not object to the empaneling of

an anonymous jury at Green’s murder trial. We affirm.

                         FACTS AND PROCEDURAL HISTORY1

        We stated the facts underlying Green’s convictions in his direct appeal:

                On November 2, 2004, Green visited his estranged wife Stacy and their
        two children, E.G. and R.G., at Stacy’s home in Griffith, Indiana. Stacy was
        thirty-nine weeks pregnant with the couple’s third child, whom she had named
        Nathaniel.
                After the children were in bed, Green and Stacy walked into the kitchen
        and Stacy began to clean up the remains of the evening meal. Green decided
        to confess that he had been involved with another woman. At some point,
        Green kicked Stacy several times, lacerating her liver. He then strangled her,
        apparently with an aluminum broomstick, and stabbed her in the neck with a
        knife. Stacy sustained a two-inch wide, four-inch deep laceration to her neck,
        which severed her right carotid artery and fractured her cervical vertebrae.
        Stacy and her unborn son both died.
                Green washed his arm, and washed and dried the knife and placed it
        into a kitchen drawer. He drove to a convenience market to buy Gatorade, and
        then drove to the residence of Sarah Dechene (“Dechene”), where he spent the
        night. The next morning, Green telephoned Stacy’s home and spoke with his
        five-year-old son E.G. E.G. told Green that Stacy was lying in “cherry juice
        next to a broom.” (Tr. 215.) Green summoned the police. When the police
        officers arrived, they found Stacy dead on her kitchen floor next to a bloody
        and broken aluminum broomstick. A kitchen window was open and the screen
        had been cut.
                In Green’s initial conversations with police, he first omitted any
        discussion of an altercation and later denied that there had been an altercation.
         Eventually, Green reported that “something bad has happened” and that he
        “needed to tell” the officers about it after speaking with his father. (Tr. 458.)
        After speaking with his father, Green did not answer further police questions.
                On November 16, 2004, Green agreed to speak with the police. He did
        so after receiving written assurances from the Lake County Prosecutor that the
        State would not seek to have the death penalty imposed upon him if he were

1
 We held oral argument in this case on August 20, 2013, in the Court of Appeals Courtroom at the Indiana
Statehouse. We comment counsel on their excellent advocacy.
                                                   2
       ultimately charged with Stacy’s and Nathaniel’s murders. During the
       interview, Green admitted that he had been involved in an altercation with
       Stacy. He stated that Stacy had become angered upon learning of his affair
       with Dechene, and had come after him with a knife. He claimed that he put his
       arm around Stacy’s neck and squeezed until he felt something pop, but he
       didn’t know how she had been stabbed. He denied having the knife in his
       hand prior to picking it up to clean it.
              On November 17, 2004, the State charged Green with two counts of
       murder. On August 9, 2006, the trial court denied Green’s motion to suppress
       his November 16, 2004 statement to police. On August 18, 2006, a jury found
       Green guilty as charged.
              On September 22, 2006, the trial court sentenced Green to two
       consecutive terms of forty-five years imprisonment.

Green v. State, 870 N.E.2d 560, 563-65 (Ind. Ct. App. 2007), trans. granted 878 N.E.2d 215

(Ind. 2007), trans. order vacated 877 N.E.2d 467 (Ind. 2007).

       Prior to Green’s trial, the Lake County Court Criminal Division, “adopted a voir dire

policy whereby the names of potential jurors would be eliminated from the jury

questionnaires and names would not be used in open court or on the record.” (App at 153.)

Instead, the jurors were to be referred to by number and “the names of the jurors were not

provided to trial counsel and the defendant.” (PCR Ex. 2.) The policy “was adopted by all

judges of the Lake Superior Court in response to jury privacy concerns in having their names

used in a public forum . . . [which concerns were] particularly heightened in this Internet

world.” (App. at 153.) The jury for Green’s trial was empaneled in accordance with this

policy. Green’s trial counsel did not object to the anonymous jury, nor was the issue raised in

Green’s direct appeal.

       On May 21, 2009, Green filed a petition for post-conviction relief (PCR) alleging trial

counsel should have objected to the empaneling of an anonymous jury and appellate counsel

                                              3
should have raised the issue on direct appeal.2 On September 5, 2012, after a hearing, the

post-conviction court denied Green’s petition. The court concluded:

        10.     At the time that Green’s trial took place, no Indiana case law addressed
        the constitutionality of an anonymous jury. However, federal precedent
        existed. United States v. Mansoori, 304 F.3rd 635, 650 (7th Cir. 2002) (citing
        United States v. Crockett, 979 F.2d 1204, 1215 (7th Cir. 1992) and United
        States v. Paccione, 949 F.2d 1183, 1192 (2nd Cir. 1991)), cert denied, 505
        U.S. 1220 (1992); United States v. Krout, 66 F.3rd 1420, 1427 (5th Cir. 1995).
        In general the federal courts held that the use of an anonymous jury was an
        extreme measure only to be employed when the safety of the jurors was
        seriously at risk or in other unique circumstances. Id. For example, an
        anonymous jury might be warranted if the defendant is shown to participate in
        organized crime or any other group with the ability to harm jurors; if the
        defendant has previously tried to interfere with the judicial process generally
        or witnesses specifically; if the defendant is facing a potentially lengthy
        sentence of incarceration; or [if] the case has inspired extensive pretrial
        publicity that might logically culminate in the exposure of jurors’ names and
        the subjection to harassment or intimidation. See Krout, 66 F.3rd at 1427.
        There is no evidence that any of these factors existed in Green’s case except
        the potential for a lengthy sentence of incarceration.
        11.     The primary constitutional right at risk from the use of an anonymous
        jury is the right to be presumed innocent of the charges, a principal [sic]
        inferred from the basic rights to due process and equal protection guaranteed
        under the Fourteenth Amendment.
        12.     No trial strategy or litigation tactic guided defense counsel’s failure to
        object to the anonymous jury process in Green’s case. As counsel frankly put
        it, he simply did not know to object. He was not familiar with the body of
        federal cases addressing the issue and was not prepared to face the issue. The
        Lake County courts had never withheld jurors’ names in the past and counsel
        was surprised by the novel procedure just moments before the voir dire was
        about to begin. Furthermore, the court did not explain to the venire the reason
        why names were not provided to counsel. Therefore, the court did not say
        anything that impugned the presumption of innocence and might have inspired
        trial counsel to object. Finally the practice of withholding jurors’ names had
        apparently been in place for some months prior to Green’s trial, albeit
        unknown to [defense counsel]. There is no evidence that the prevailing
        professional norm among Lake County attorneys was to object to the court’s

2
  Green does not appeal the post-conviction court’s decision that his appellate counsel rendered effective
assistance.
                                                    4
new procedure. Under these circumstances, we are not persuaded that
counsel’s failure to object fell below prevailing professional norms of practice.
13.     Even if counsel’s acquiescence to the anonymous jury procedure fell
below prevailing professional norms, Green has failed to show that he was
actually prejudiced thereby.
14.     If this were a direct appeal, the State would bear the burden to show
that the trial court’s use of an anonymous jury was not an abuse of discretion.
See, e.g., Major v. State, 873 N.E.2d 1120, supra. But this is not a direct
appeal. Unlike Carl Major, Green collaterally appeals his conviction.
Therefore, he bears the burden to show that the use of the anonymous jury in
fact prejudiced him in order to prove ineffective assistance of counsel and gain
relief. Cf. Lingler v. State, 640 N.E.2d 392 (Ind. Ct. App. 1994), citing
Weathorford v. State, 619 N.E.2d 915, 918 (Ind. 1993) (burden of proof in
post-conviction proceedings rests with the defendant/petitioner).
15.     Ind. Evid. Rule 606 governs the permissible limits of investigation into
a juror’s service and experience. The [R]ule states, in relevant part:
        (b) Inquiry into Validity of Verdict or Indictment. Upon an
        inquiry into the validity of a verdict or indictment, a juror may
        not testify as to any matter or statement occurring during the
        course of the jury’s deliberations or to the effect of anything
        upon that or any other juror’s mind or emotions as influencing
        the juror to assent to or dissent from the verdict or indictment or
        concerning the juror’s mental processes in connection therewith,
        except that a juror may testify (1) to drug or alcohol use by any
        juror, (2) on the question of whether extraneous prejudicial
        information was improperly brought to the jury’s attention or (3)
        whether any outside influence was improperly brought to bear
        upon any juror. A juror’s affidavit or evidence of any statement
        by the juror concerning a matter about which the juror would be
        precluded from testifying may not be received for these
        purposes.
16.     Green has obtained the names of the jurors who appeared for his trial
along with their corresponding juror numbers. (Goldman disposition, [E]xh.
2). Although jurors are prohibited from certain areas of testimony under Rule
606, the fact that the jurors’ names are known provides an avenue to discover
the relationships counsel might have discovered during voir dire. No evidence
has been presented to show that any juror was related, biologically or
emotionally, to any witness or party to the proceedings. The only evidence that
an impaneled juror had knowledge of a family member of the victim is on the
face of the record. Juror 230 revealed that she knew the victim’s grandmother;
the relationship was explored on the record and neither party moved to strike
her from the jury. All other arguments of prejudice address potential or
                                          5
       speculative harm. There is no evidence that Green was actually prejudiced by
       his attorney’s failure to object to the anonymous jury.
       17.     We conclude that Green was not denied effective assistance of counsel.

(Id. at 113-16.)

                             DISCUSSION AND DECISION

       Post-conviction proceedings provide defendants with the opportunity to raise issues

that were not available on direct appeal or were not known at the time of the trial. State v.

Hernandez, 910 N.E.2d 213, 216 (Ind. 2009). Claims available on direct appeal but not

presented are not available for post-conviction review. Id. Thus, not all issues are available

in a post-conviction proceeding; challenges to convictions must be based on grounds

enumerated in the post-conviction rules. Id.; Post Conviction Rule 1(1). A petitioner for

post-conviction relief cannot avoid application of the waiver doctrine by asserting

fundamental error. Id. Rather, complaints that something went awry at trial are generally

cognizable only when they show deprivation of the right to effective counsel or issues

demonstrably unavailable at the time of trial or direct appeal. Id.

       A successful claim of ineffective assistance of trial counsel must satisfy two

components. First, the defendant must show deficient performance - representation that fell

below an objective standard of reasonableness involving errors so serious that the defendant

did not have the counsel guaranteed by the Sixth Amendment. McCary v. State, 761 N.E.2d

389, 392 (Ind. 2002), reh’g denied. Second, the defendant must show prejudice -- a

reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome)

that, but for counsel’s errors, the result of the proceeding would have been different. Id.

                                              6
        We need not consider whether counsel’s performance fell below the objective

standard if that performance would have not changed the outcome of the proceeding.

Strickland, 466 U.S. at 687. “Prejudice occurs when the defendant demonstrates ‘there is a

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

proceeding would have been different.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

2006) (quoting Strickland, 466 U.S. at 694). To demonstrate ineffective assistance of

counsel under Strickland, the defendant must show “actual” prejudice. Conner v. State, 711

N.E.2d 1238, 1254 (Ind. 1999).

        Green argues he was prejudiced because he was denied his right to a jury of “known

individuals.” (Br. of Appellant at 14) (quoting United States v. Sanchez, 74 F.3d 562, 565

(5th Cir. 1996)). He contends he was deprived of the information he needed to make

peremptory challenges because he could not compare the jurors’ names to those known to

him and counsel.3 In addition, Green argues the empaneling of an anonymous jury deprived


3
 Green asserts the Deputy Prosecuting Attorney had a list of the names of the jurors in addition to their
numbers. The PCR court found:
         The Deputy Prosecuting Attorney who tried Green’s case believed that he had a jury list that
         included the jury’s names. However, based on our review of all of the evidence presented in
         these proceedings, we find that it is possible, though unlikely, that the State was given a list
         different than [sic] the list given to the defense.
(App. at 109.) During oral argument, Green argued this finding was “clear error” because it was not supported
by     evidence      in    the      record.         Green    v.   State     Oral      Argument,       9:19–10:10
https://mycourts.in.gov/arguments/default.aspx?&id=1561&view=detail&yr=&when=&page=1&court=app&s
earch=&direction=%20ASC&future=False&sort=&judge=&county=&admin=False&pageSize=20                           (last
accessed August 21, 2013). Regarding clear error, our Indiana Supreme Court has held:
         [A]s to factual determinations “[w]e reverse only upon a showing of clear error -- that which
         leaves us with a definite and firm conviction that a mistake has been made.” . . . “[C]lear
         error” review requires the appellate court to assess whether “there is any way the trial court
         could have reached its decision.” In this review, we defer substantially to findings of fact but
         not to conclusions of law.
State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997) (citations omitted), reh’g denied. During Green’s PCR
hearing, the State presented evidence from the Deputy Prosecuting Attorney, who indicated he could not
                                                      7
him of his Fourteenth Amendment right to be presumed innocent because “[a]n anonymous

jury raises the specter that the defendant is a dangerous person from whom the jurors must be

protected[.]” (Br. of Appellant at 15) (quoting United States v. Ross, 33 F.3d 1507, 1519

(11th Cr. 1994)). Finally, Green contends prejudice can be presumed for purposes of his

ineffective assistance of counsel claims because he did not receive a fair trial.

        Green has not demonstrated he experienced “actual prejudice,” which is required to

prevail under Strickland analysis. See Conner, 711 N.E.2d at 1254 (requiring showing of

“actual prejudice”). Green received the jurors’ names as a part of discovery for his post-

conviction case, but he did not present evidence “that any juror was related, biologically or

emotionally, to any witness or party to the proceedings.” (App. at 115.) As Green needed to

demonstrate “actual” prejudice, his argument fails. See Conner, 711 N.E.2d at 1254

(requiring the showing of “actual” prejudice).

        Regarding the presumption of innocence, the jury in Green’s trial was instructed

multiple times at the beginning and end of trial regarding the presumption of Green’s

innocence. Additionally, the evidence against Green was overwhelming. As we stated in our

opinion on direct appeal:




“definitively” recall if he had a list of the juror’s names during trial. (Tr. at 69.) The court administrator for
the Lake Superior Court, stated in a deposition he would take the juror list with juror names, and the judge
would “fold[] it over so that the names were not visible, place it on a copy machine, run copies of it and then
the lawyers would receive the copies, which did not contain the [juror’s] names.” (App. at 133.) Based on that
evidence, we cannot say the PCR court’s finding was clear error.


                                                        8
               In Green’s initial conversations with police, he first omitted any
       discussion of an altercation and later denied that there had been an altercation.
        Eventually, Green reported that “something bad has happened” and that he
       “needed to tell” the officers about it after speaking with his father. (Tr. 458.)
       After speaking with his father, Green did not answer further police questions.
               On November 16, 2004, Green agreed to speak with the police. He did
       so after receiving written assurances from the Lake County Prosecutor that the
       State would not seek to have the death penalty imposed upon him if he were
       ultimately charged with Stacy’s and Nathaniel’s murders. During the
       interview, Green admitted that he had been involved in an altercation with
       Stacy. He stated that Stacy had become angered upon learning of his affair
       with Dechene, and had come after him with a knife. He claimed that he put his
       arm around Stacy’s neck and squeezed until he felt something pop, but he
       didn’t know how she had been stabbed. He denied having the knife in his
       hand prior to picking it up to clean it.

Green, 870 N.E.2d at 563-64. Also, the facts of the case tell us:

               Green took painstaking steps to conceal Stacy’s death. He washed the
       knife, dried it, and placed it into a drawer. He returned to Dechene’s home and
       told her that he had dinner with his mother. He placed a call to Stacy’s home
       the next morning, ostensibly to inquire as to her whereabouts. There is
       evidence that a window was left open and the screen cut, yet the damp leaves
       on the ground beneath the window were undisturbed. From this, the jury could
       infer that Green attempted to create the impression that an intruder attacked
       Stacy.
               Finally, Green had given conflicting versions of the incident soon
       thereafter, alternately claiming that he had no altercation with Stacy, and that
       Stacy, nine months pregnant, was the aggressor in an altercation from which he
       could not retreat.

Id. at 565.

       Based on the lack of evidence regarding actual prejudice Green experienced, the

multiple instructions to the jury about the presumption of Green’s innocence, and the

overwhelming evidence against Green, Green has not demonstrated he received ineffective




                                              9
assistance of trial counsel. Accordingly, we affirm the denial of his petition for post-

conviction relief.

       Affirmed.

BAKER, J., and MATHIAS, J., concur.




                                          10
