MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Feb 28 2018, 11:18 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana

Katherine Province                                       Angela N. Sanchez
Deputy Public Defender                                   Supervising Deputy Attorney
Indianapolis, Indiana                                    General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dennis Ray Smith,                                        February 28, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         82A05-1709-PC-2123
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Respondent.                                     Judge
                                                         The Honorable Kelli E. Fink,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1308-PC-23



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018           Page 1 of 13
                                       Statement of the Case
[1]   Dennis Ray Smith appeals from the post-conviction court’s denial of his

      petition for post-conviction relief. Smith raises a single issue for our review,

      namely, whether he was denied the effective assistance of trial counsel. We

      affirm.


                                 Facts and Procedural History
[2]   The facts underlying Smith’s convictions were stated by this court on direct

      appeal:


              Smith was married to Gina, M.A.’s mother, for fourteen years.
              When M.A. was four or five years old, Smith sexually molested
              her on two occasions after Gina had left the house. M.A. did not
              have complete recollection of the second occasion but stated that
              she could “remember the pain . . . [i]n [her] vagina.” Tr. p. 41.
              M.A. did not tell anyone about the molestation for several years
              because she was afraid of Smith.

              On March 22, 2011, M.A. told Kelly Schwent, her mother’s best
              friend, and Kelly’s husband, Dan, about the molestations. Kelly
              took M.A. back to her home to inform Gina of the molestations.
              At the age of seventeen, M.A. had finally decided to reveal the
              fact that Smith had sexually molested her because she believed
              that she could handle the situation. Moreover, Smith and Gina
              had recently separated, and Smith was no longer staying in the
              family residence.

              After Gina was informed that her daughter had been sexually
              molested by Smith, Gina, Kelly, and M.A., drove to Berry
              Plastics in Evansville, where Smith was employed, and
              confronted him in the parking lot. Smith denied the allegations
              while asking what he could do to make this go away. At some

      Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018   Page 2 of 13
        point, Gina hit Smith. Gina looked at Smith and gave him an
        ultimatum: Smith could either confront Gina’s father or follow
        the three women to the police station. Smith chose the latter.

        After contacting the police, M.A., Gina, and Kelly went to
        Holly’s House, where they were interviewed by Detective
        Nathan Schroer of the Evansville Police Department. Later that
        night, and into the next morning, Detective Schroer advised
        Smith of his Miranda[] rights, and Smith signed a waiver of those
        rights that was dated March 23, 2011.

        Detective Schroer conducted a recorded interview with Smith.
        Relevant portions of that interview follow:

                 Q . . . I’m going to bury you underneath this case
                 because I have no choice, I mean if you put yourself
                 in my shoes, you would have to, you know, because
                 you would leave here thinking, that guy doesn’t care,
                 why shouldn’t I, or we talk it out and we go from
                 there.

                 A Okay, but what happens tonight, I mean what
                 happens if I say I want a lawyer, do I get one in here
                 now then we talk about it?

                 Q No, we wouldn’t get one in here now, I mean they
                 don’t come out at this time of the night, I’ll tell you
                 exactly what happens, if you were to go down that
                 route they would go, and you’ve got to remember,
                 here’s what I’m telling you, if you went away for the
                 rest of your life, he would say, oh don’t talk to them,
                 don’t talk to them, that’s what he would say, I’m
                 being honest with you, you know, and I’d say that
                 that’s absolutely fine, I’ve sent a lot of people away
                 for a lot of time because I was able to show a jury
                 that they were guilty and then the jury wants to
                 know, well what did they have to say about it, . . .
Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018   Page 3 of 13
                                                 ***

                 A Am I looking at life or something?

                 Q No, you’re not looking at life, no you’re not
                 looking at life, you have no criminal history, I don’t,
                 I don’t see anything like that. . . .

                                                 ***

                 Q . . . She said that it didn’t happen more than two
                 times, did it happen more than two times?

                 A (inaudible)

                 Q Okay, how many different locations?

                 A One.

                                                 ***

                 Q . . . are you saying it was your finger that touched
                 her vagina?

                 A It was my finger.

        Tr. p. 138-39; 146; 149; 165.

        On March 28, 2011, the State charged Smith with: Count I, class
        A felony child molesting by sexual intercourse and Count II,
        class A felony child molesting by sexual intercourse. On June 7,
        2011, the State added Count III, class A felony child molesting
        by sexual deviate conduct and Count IV, class A felony child
        molesting by sexual deviate conduct. On February 8, 2012, the
        State added Count V, class A felony child molesting by sexual
        deviate conduct.


Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018   Page 4 of 13
        On February 22, 2012, Smith filed a motion to suppress “a
        portion of the statement of the Defendant taken by audio/video
        recording by Detective Nathan Sch[r]oer.” Appellant’s App. p.
        29. Smith alleged that his statement was acquired in violation of
        his right to counsel under the Fifth Amendment to the United
        States Constitution and the Indiana Constitution. A hearing on
        the motion to suppress was held on the same date, and the trial
        court denied the motion.

        Smith’s jury trial commenced the next day, February 23, 2012.
        At trial, when the State offered the recorded interview between
        Smith and Detective Schroer into evidence as State’s Exhibit D,
        Defense Counsel stated that there was no objection, and the trial
        court admitted the exhibit. However, immediately after the
        exhibit was admitted without objection, Defense Counsel stated
        in a bench conference that he was objecting to the exhibit on
        grounds that the motion to suppress “should have been granted,
        however, the Court denied that Motion.” Tr. p. 106. The trial
        court overruled the objection.

        The interview was played for the jury. Following deliberations,
        the jury returned a verdict of guilty on Counts I-IV and not guilty
        on Count V.

        The trial court held a sentencing hearing on March 23, 2012,
        where it sentenced Smith to thirty years imprisonment on each of
        the four counts to be served concurrently, for a total executed
        term of thirty years.


Smith v. State, 983 N.E.2d 226, 228-30 (Ind. Ct. App. 2013) (“Smith I”), trans.

denied. On direct appeal, Smith alleged that his statement was inadmissible at

trial because it was “coerced in violation of the Fifth Amendment to the United

States Constitution” and that two of his convictions violated Indiana’s

prohibition against double jeopardy. Id. at 230. We rejected Smith’s Fifth

Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018   Page 5 of 13
      Amendment claim, but we reversed two of his convictions, Counts III and IV,

      on double jeopardy grounds.


[3]   On August 23, 2013, Smith filed a petition for post-conviction relief, and he

      filed amended petitions on December 27, 2016, and January 17, 2017. Smith

      alleged that he had been denied the effective assistance of trial counsel because

      his counsel: did not move to redact portions of his videotaped statement; did

      not object to portions of his videotaped statement; and did not object to the

      prosecutor’s comments during closing arguments regarding Smith’s post-

      Miranda silence. Following an evidentiary hearing, the post-conviction court

      denied Smith’s petition. This appeal ensued.


                                     Discussion and Decision
[4]   Smith appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review is clear:


              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)
              (citations omitted). When appealing 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 Rule 1(6). Although we do not defer to the post-
              conviction court’s legal conclusions, “[a] post-conviction court’s

      Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018   Page 6 of 13
              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) (internal quotation omitted).


      Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to

      Campbell).


[5]   Smith contends that he received ineffective assistance from his trial counsel,

      Jake Warrum.


              When evaluating an ineffective assistance of counsel claim, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
              State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
              prong, “the defendant must show deficient performance:
              representation that fell below an objective standard of
              reasonableness, committing 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) (citing
              Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
              second prong, “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. (citing Strickland, 466
              U.S. at 694, 104 S. Ct. 2052).


      Id. at 274.


              There is a strong presumption that counsel rendered adequate
              assistance and made all significant decisions in the exercise of
              reasonable professional judgment. Counsel is afforded
              considerable discretion in choosing strategy and tactics, and these
              decisions are entitled to deferential review. Isolated mistakes,

      Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018   Page 7 of 13
               poor strategy, inexperience, and instances of bad judgment do
               not necessarily render representation ineffective.


      Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (citations omitted). The two

      prongs of the Strickland test are separate and independent inquiries. Williams v.

      State, 706 N.E.2d 149, 154 (Ind. 1999). “Thus, ‘[i]f it is easier to dispose of an

      ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

      course should be followed.’” Id. (quoting Strickland, 466 U.S. at 697, 104 S. Ct.

      2052).


[6]   Smith alleges that Warrum’s representation was deficient with respect to his

      handling of several instances of “post-Miranda silence” during Smith’s

      videotaped statement admitted at trial. Appellant’s Br. at 13. In particular,

      Smith maintains that his videotaped statement contains ten instances where he

      did not respond to questions from Detective Schroer. In his post-conviction

      petition, Smith argued that Warrum should have moved to redact those

      portions of the interview or should have objected to those portions of the

      interview. Smith also argued that Warrum should have objected to the

      prosecutor’s references to Smith’s post-Miranda silence during his closing

      argument and rebuttal. The prosecutor stated as follows:


               You know they say sometimes a picture is worth a thousand
               words, and we had a couple [of] pictures, but I’ve also hear[d]
               sometimes that silence can be deafening, and I don’t know how
               many times I counted during the course of Detective S[c]hroer’s
               interview with the defendant when he asked point blank if [M.A.]
               were lying when there was nothing more than an awkward
               silence and no response at all from the defendant.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018   Page 8 of 13
                                                      ***

              You saw the interview, you saw, you are allowed to take into
              consideration the way that this person looked [i]n that interview,
              and the silences in response, is she lying . . . .


      Trial Tr. Vol. III at 222, 240.


[7]   Smith’s contentions on appeal rest on the United States Supreme Court’s

      opinion in Doyle v. Ohio, 426 U.S. 610 (1976), which prohibits the State’s use of

      a defendant’s post-Miranda silence to impeach an exculpatory story told for the

      first time at trial. See Barton v. State, 936 N.E.2d 842, 850 (Ind. Ct. App. 2010),

      trans. denied. In particular, Smith contends that,


              [a]lthough [he] was not in custody when he was interviewed by
              Detective Schroer and responded to many of the Detective’s
              questions, his silence in response to certain questions is protected
              under the Due Process Clause and Doyle because he was advised
              of his Miranda rights prior to questioning. The State’s use of
              Smith’s silence as evidence of guilt was a violation of due
              process.


      Appellant’s Br. at 18. Indeed, as stated by the United States Court of Appeals

      for the Seventh Circuit,


              [i]f a suspect does speak, he has not forever waived his right to be
              silent. Miranda allows the suspect to reassert his right to remain
              silent at any time during the custodial interrogation. Miranda v.
              Arizona, 384 U.S. 436, 445, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d
              694 (1966). Thus[,] a suspect may speak to the agents, reassert
              his right to remain silent or refuse to answer certain questions, and
              still be confident that Doyle will prevent the prosecution from

      Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018   Page 9 of 13
              using his silence against him. United States v. Canterbury, 985 F.2d
              483, 486 (10th Cir. 1993).


      United States v. Scott, 47 F.3d 904, 907 (7th Cir. 1995) (emphasis added).


[8]   However, the State maintains that Smith “fails to meet his burden to show that

      any of the 10 instances to which he points during his interview qualify as

      ‘silence’ within the meaning of Doyle.” Appellee’s Br. at 14. The State

      characterizes those moments of silence as “natural pauses between questions[.]”

      Id. Further, the State avers that, “[w]here a defendant does not exercise his

      Miranda rights but instead makes a statement to the police, the defendant

      cannot thereafter claim a Doyle violation.” Id. at 16.


[9]   In support of its contention on this issue, the State cites to our Supreme Court’s

      opinions in Trice v. State, 766 N.E.2d 1180 (Ind. 2002), and Sylvester v. State, 698

      N.E.2d 1126 (Ind. 1998), but neither of those cases is on all fours with the

      instant case. Trice addresses the implications of Doyle in the context of “cross-

      examination that merely inquires into prior inconsistent statements [by a

      defendant].’” 766 N.E.2d at 1184 (emphasis added). In Sylvester, the Court

      stated, “we find no Doyle violation here since [the defendant] did not exercise

      his Miranda right. Quite simply, defendant did not remain silent.” 698 N.E.2d

      at 1130. That certainly appears to suggest that, once a defendant waives his

      right to remain silent, he may not later claim a Doyle violation. But the

      circumstances of the alleged “silence” in Sylvester are different than those here.

      In particular, the court stated, “[w]here a defendant chooses to fabricate a story,


      Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018   Page 10 of 13
       he has not remained silent and cannot claim a Doyle violation,” and “that

       defendant did not tell the police where his wife’s body was does not mean that

       he remained silent in the Doyle sense.” Id. at 1130 n.5, 1131. In other words,

       the alleged Doyle violation in Sylvester did not involve the State’s use of the

       defendant’s silent refusal to answer questions to impeach him.


[10]   Here, in contrast, in its closing argument and rebuttal, the State specifically

       referred to Smith’s “silence” in the face of questions regarding whether M.A.

       had lied about the molestations. That would seem to squarely implicate

       Smith’s protections under Doyle. But we need not decide whether trial

       counsel’s failure to object under Doyle fell below an objective standard of

       reasonableness because an alleged Doyle violation is subject to a harmless error

       analysis. See Johnson v. State, 901 N.E.2d 1168, 1173 (Ind. Ct. App. 2009). In

       Bieghler v. State, 481 N.E.2d 78, 92 (Ind. 1985), our Supreme Court set out a

       five-part test to determine whether a Doyle violation is harmless: (1) the use to

       which the prosecution puts the post-arrest silence; (2) who elected to pursue the

       line of questioning; (3) the quantum of other evidence indicative of guilt; (4) the

       intensity and frequency of the reference; and (5) the availability to the trial

       judge of an opportunity to grant a motion for mistrial or to give curative

       instructions. Here, while three of the elements of the Bieghler test would

       mitigate against finding harmless error, the other two elements are satisfied and

       weigh heavily towards holding the error to be harmless.


[11]   In particular, the quantum of evidence of Smith’s guilt is substantial. In

       addition to M.A.’s trial testimony that, on two occasions, Smith penetrated her

       Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018   Page 11 of 13
       vagina with his penis, M.A.’s mother and aunt both testified that, when they

       confronted Smith about the allegations, he did not deny them but asked M.A.’s

       mother how to “make this go away.” Id. at 73. During his interview with

       Detective Schroer, Smith corroborated M.A.’s testimony that Smith had carried

       her up the stairs and that he had molested her in a bedroom. And Smith

       admitted to Detective Schroer that he had pulled up M.A.’s shirt and fondled

       her breasts and that he had pulled down M.A.’s pants and touched her vagina

       with his finger. Thus, Smith admitted to facts that supported a Class A felony

       under Indiana Code Section 35-42-4-3 (1999). Smith also stated that he was

       “sorry for what [he] did to [M.A.]” Trial Tr. Vol. III at 160. Finally, the

       prosecutor made only two passing references to Smith’s silence in the face of

       questions during the interview, and, thus, neither the intensity nor frequency of

       the references is significant.1


[12]   We hold that a Doyle violation, if any, was harmless. Accordingly, Smith

       cannot show that he was prejudiced by his trial counsel’s alleged deficient

       performance, i.e. he cannot show a reasonable probability that, but for

       counsel’s errors, the result of the proceeding would have been different. The




       1
         With respect to Smith’s contention that Warrum should have moved to redact the silences from the
       interview or should have objected to the silences, Smith does not direct us to any relevant authority to show
       that such a motion would have been granted or that such objections would have been sustained. A Doyle
       violation occurs when the State uses a defendant’s post-Miranda silence to impeach a defendant. See Barton,
       936 N.E.2d at 850. Here, the mere introduction into evidence of Smith’s complete interview with Detective
       Schroer, including Smith’s failure to respond to ten questions, is not equivalent to the State’s use of those
       moments of silence to impeach Smith at trial.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018         Page 12 of 13
       post-conviction court did not err when it concluded that Smith was not denied

       the effective assistance of trial counsel.


[13]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018   Page 13 of 13
