MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                       Apr 01 2019, 6:41 am
regarded as precedent or cited before any                                       CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court


estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Daryl K. Henderson, Jr.                                   Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana

                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daryl K. Henderson, Jr.,                                  April 1, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          45A03-1712-PC-2998
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Samuel L. Cappas,
Appellee-Respondent.                                      Judge
                                                          Trial Court Cause No.
                                                          45G04-1509-PC-9



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019                Page 1 of 9
                                        Statement of the Case
[1]   Daryl K. Henderson, Jr. appeals the post-conviction court’s denial of his

      petition for post-conviction relief. Henderson raises a single issue for our

      review, namely, whether the post-conviction court erred when it denied his

      petition because he was denied the effective assistance of trial counsel. We

      affirm.


                                  Facts and Procedural History
[2]   The facts underlying Henderson’s convictions were stated by this Court on

      direct appeal:


              On August 2, 2012, Henderson spent his afternoon drinking
              alcohol at his home in Gary, Indiana. At around 4:00 p.m.,
              Henderson decided to drive to Rico’s Pizza to get pizza for his
              family. At the time, Henderson’s driver’s license had been
              suspended. Henderson also carried a small handgun on his
              person despite the fact that his permit to carry a handgun had
              since expired. While driving to Rico’s Pizza, Henderson was
              drinking from a can of beer. When he arrived at Rico’s Pizza,
              Henderson entered the restaurant holding his can of beer and
              placed his order. While waiting for his order, he bumped into
              Lawrence McIntosh (McIntosh), with whom he had no prior
              acquaintance. They engaged in small talk when Henderson
              stated that he wanted to buy alcohol, and McIntosh informed
              Henderson that there was a liquor store next door. Shortly
              thereafter, both men exited Rico’s Pizza and entered Party
              Liquors. As they walked in, the cashier at Party Liquors told
              Henderson that he could not serve him if he had an open can of
              beer. Henderson turned around, walked out, placed his empty
              can of beer on the pavement, and walked back in. While
              Henderson was outside tossing his can of beer, McIntosh told the
              cashier that he wished Henderson would leave him alone.
      Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019   Page 2 of 9
        Henderson reentered Party Liquors, but since the cashier refused
        to sell him alcohol, he requested McIntosh to purchase alcohol
        on his behalf. The Party Liquors’ surveillance video showed
        McIntosh paying for what looked like a six-pack of beer and
        leaving Henderson inside the liquor store. It further showed
        McIntosh walking to his car, dropping off his six-pack of beer,
        and going back into Rico’s Pizza. Also, it showed Henderson
        leaving Party Liquors and returning to Rico’s Pizza to pick up his
        pizza.

        After Henderson picked up his pizza, he saw McIntosh on his
        way out. Henderson approached McIntosh, and both men talked
        briefly. A short while later, Henderson returned to Rico’s Pizza
        to get a drink. When Henderson saw McIntosh seated inside the
        restaurant, he approached McIntosh and started circling him
        while making threatening hand gestures. That provoked
        McIntosh and prompted him to stand up to face Henderson. At
        that point, Henderson told McIntosh, “You want to act like you
        don’t know me? . . . I got something for your ass when you come
        outside.” (Transcript p. 153). McIntosh responded that he was
        tired of Henderson’s “shit” and he told him to leave him alone
        and get his own beers. (Tr. p. 208). McIntosh then punched
        Henderson and a scuffle ensued. The fight did not last long
        because both men were ordered to go outside. Prior to the
        altercation, McIntosh had removed his t-shirt, but upon exiting
        Rico’s Pizza, he began to put it back on. As soon as both men
        were outside, Henderson retrieved his handgun from his pocket,
        aimed it at McIntosh, and fired one shot at close range.
        Henderson fired two more shots at McIntosh as he was running
        away from him. Firing the shots, Henderson told McIntosh, “I
        told you I was gonna do this.” (Tr. p. 237). McIntosh was hit
        twice: in his jaw and chest, with the chest wound causing his
        death. Meanwhile, Henderson ran toward his vehicle, fired two
        more random shots, and reloaded his gun.

        A police officer who was on patrol in the nearby area heard the
        gunshots and drove toward the direction of the shots. When he

Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019   Page 3 of 9
        arrived at Rico’s Pizza, he saw people pointing toward
        Henderson’s vehicle and he immediately activated his emergency
        lights. Upon seeing the officer, Henderson fired one more shot in
        the officer’s direction and fled from the scene. A high speed
        chase through the city ensued. Henderson’s vehicle eventually
        came to a stop when it hit a stop sign. Henderson attempted to
        flee on foot and hid behind some bushes but was quickly
        apprehended by the officers. Although he resisted arrest, the
        officers were able to subdue him. Upon searching Henderson’s
        vehicle, the officers found a small handgun on the floorboard.
        Because Henderson complained of injuries, he was taken to the
        hospital, for treatment. Henderson became unruly at the hospital
        and he had to be restrained. The following day, Gary police
        detectives interviewed Henderson after advising him of his
        Miranda rights. Henderson narrated four different versions of the
        events leading to the shooting.

        On August 4, 2012, the State filed an Information charging
        Henderson with one Count of murder, and one Count of resisting
        law enforcement, [as] a Class D Felony. However, on November
        8, 2012, and subsequently on October 16, 2013, the State
        amended the Information to reflect the following charges: Count
        III, criminal recklessness, a Class D felony; Count IV, resisting
        law enforcement, a Class A misdemeanor; Count V, resisting law
        enforcement, a Class A misdemeanor; Count VI, carrying a
        handgun without a license, a Class A misdemeanor; Count VII,
        driving while suspended, a Class A misdemeanor; Count VIII, no
        valid driver’s license, a Class C infraction; Count IX, speeding, a
        Class C infraction; Counts X-XXVI, disregarding automatic
        signals and disregarding stop signs, all Class C infractions.

        Henderson’s jury trial was conducted on November 18, 2013
        through November 22, 2013. At trial, Henderson testified that he
        only shot at McIntosh in self-defense because he believed that
        McIntosh was reaching for something inside his shirt, and he
        feared for his life. Toward the end of the trial, Henderson
        tendered jury instructions on voluntary manslaughter and
Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019   Page 4 of 9
              reckless homicide. The trial court declined to tender the
              voluntary manslaughter instruction but tendered the reckless
              homicide instruction. At the close of the evidence, the jury found
              Henderson guilty of murder and all other Counts except for one
              Count of criminal recklessness, a Class D felony; one Count of
              resisting law enforcement, a Class A misdemeanor; and three of
              the traffic infractions.

              On December 19, 2013, the trial court held Henderson’s
              sentencing hearing and sentenced Henderson to consecutive
              sentences of fifty-three years for the murder conviction, and
              fourteen months for one Count of resisting law enforcement, [as]
              a Class D felony. In addition, the trial court sentenced
              Henderson to concurrent sentences of nine months each for one
              Count of resisting law enforcement, a Class A misdemeanor, and
              one Count for carrying a handgun without a license, a Class A
              misdemeanor. Henderson also received a ninety-day sentence in
              the Lake County Jail for driving while suspended.


      Henderson v. State, No. 45A03-1401-CR-34, 2014 WL 5089297, at *1-2 (Ind. Ct.

      App. Oct. 9, 2014), trans. denied (“Henderson I”).


[3]   Henderson raised a single issue on direct appeal, namely, whether the trial court

      abused its discretion when it did not instruct the jury on voluntary

      manslaughter. The trial court had declined to give the proffered instruction

      after finding no serious evidentiary dispute regarding whether Henderson had

      acted under sudden heat, and we affirmed Henderson’s convictions on appeal.

      Id. at *4-5.


[4]   On September 24, 2015, Henderson filed a petition for post-conviction relief,

      and he filed an amended petition on October 11, 2016, alleging ineffective


      Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019   Page 5 of 9
      assistance of trial counsel. On December 4, 2017, after a hearing, the post-

      conviction court denied Henderson’s petition. This appeal ensued.


                                        Discussion and Decision
[5]   Henderson contends that he was denied the effective assistance of trial counsel. 1

      Our standard of review in such appeals is clear:


               “The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the
               evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
               “When appealing the denial of post-conviction relief, the
               petitioner stands in the position of one appealing from a negative
               judgment.” Id. at 274. In order to prevail on an appeal from the
               denial of post-conviction relief, a petitioner must show that the
               evidence 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 entered 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 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).


      Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017). Further:




      1
        To the extent that Henderson, pro se, purports to assert as a separate issue that “the post-conviction court
      violated substantive due process in denying post-conviction relief,” the argument in support of that
      contention is merely a reiteration of his contentions in support of his ineffective assistance of counsel claim.
      Appellant’s Br. at 12.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019                  Page 6 of 9
              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 682.


[6]   Henderson contends that his trial counsel rendered ineffective assistance

      because his counsel did not investigate whether McIntosh was a gang member,

      which would have supported Henderson’s self-defense claim, and because his

      counsel did not depose three of the State’s witnesses prior to trial. We address

      each argument in turn.


                     Failure to Investigate Victim’s Alleged Gang Affiliation

[7]   Henderson maintains that his trial counsel was ineffective because he did not

      investigate McIntosh’s background to determine whether he had been a

      member of a gang. Henderson asserts that “Henderson’s perceptions of

      [McIntosh] as a deadly threat based on his gang affiliation” would have

      supported his self-defense claim at trial. Appellant’s Br. at 9.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019   Page 7 of 9
[8]   However, as the post-conviction court stated, while evidence of a murder

      victim’s prior bad acts is admissible to prove that the victim had a violent

      character which frightened the defendant, a defendant offering such evidence

      “must present evidence that he knew about the specific bad acts in question

      before he killed the victim.” Appellant’s App. Vol. III at 8 (citing Holder v.

      State, 571 N.E.2d 1250, 1254 (Ind. 1991)). In support of his amended petition

      for post-conviction relief, Henderson did not present any evidence that

      McIntosh was a gang member. Moreover, Henderson did not present any

      evidence that he knew at the time of the murder that McIntosh was a gang

      member. 2 Accordingly, Henderson has not shown that his trial counsel’s

      performance was deficient when he did not investigate whether McIntosh was a

      gang member.


                                        Failure to Depose Witnesses

[9]   Henderson also contends that his trial counsel was ineffective because he did

      not depose three of the State’s witnesses, namely, Juanita Hernandez, Lisa

      Shinkle, and Vanessa Thomas. Henderson maintains that “counsel’s failure to

      depose the witnesses undermined counsel’s ability to cross-examine [the]

      witnesses and to present evidence in support of the self-defense theory.”

      Appellant’s Br. at 11. We cannot agree.


      2
        At the hearing on his petition, Henderson asserted that McIntosh had “gang-related tattoos” on his body,
      and Henderson asked his trial counsel why he did not seek to introduce those tattoos into evidence. Tr. at
      36. But, other than his self-serving testimony, which the trial court had discretion to find not credible,
      Henderson did not present evidence that McIntosh’s tattoos reflected his membership in a gang or otherwise
      suggested that McIntosh was a violent person. Henderson has not sustained his burden to show that
      McIntosh’s tattoos were relevant to his self-defense claim.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019            Page 8 of 9
[10]   Our Supreme Court has held that a counsel’s failure to interview or depose

       State’s witnesses does not, in itself, constitute ineffective assistance of counsel.

       Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 2000). Henderson must identify

       what additional information would have been discovered and how he was

       prejudiced by the absence of this information. See id. On appeal, other than

       pointing out a single inconsistency in Hernandez’ testimony, which his trial

       counsel had pointed out during his cross-examination of her at trial, Henderson

       does not explain what deposing the three witnesses prior to trial would have

       accomplished. We cannot say that he was denied the effective assistance of

       trial counsel.


[11]   In sum, Henderson has not shown that his trial counsel’s performance was

       deficient. Neither has Henderson shown that, but for counsel’s alleged errors,

       the result of the proceeding would have been different. The post-conviction

       court did not err when it denied his amended petition for post-conviction relief.


[12]   Affirmed.


       Baker, J., and Robb, J., concur.




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