Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MARK SMALL                                       GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 JODI KATHRYN STEIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana

                                                                           Mar 12 2013, 9:10 am
                              IN THE
                    COURT OF APPEALS OF INDIANA

JOHN IVY,                                        )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 18A02-1205-PC-378
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                      The Honorable Thomas G. Wright. Special Judge
                             Cause No. 18D02-9612-CF-82




                                       March 12, 2013



                MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                         Case Summary and Issues

             John Ivy was convicted of murder, a felony. After our supreme court affirmed his

conviction on direct appeal, Ivy petitioned for post-conviction relief. The post-conviction

court denied his petition. He raises the following restated issues for our review: 1)

whether the post-conviction court erred in concluding Ivy waived two of his post-

conviction claims; and 2) whether the post-conviction court erred in concluding Ivy did

not receive ineffective assistance of trial counsel.1 Concluding the post-conviction court

erred in finding Ivy had waived two issues, but notwithstanding that error, Ivy failed to

demonstrate he was entitled to post-conviction relief on any of his claims, we affirm.

                                       Facts and Procedural History

         On November 20, 1996, Ivy, Antione Barber, and a third man were robbed at

gunpoint in Tanisha Love’s apartment in Muncie by King David Preston and three other

men. On November 21, 1996, Preston died of multiple gunshot wounds in Michael

Horton’s apartment, also in Muncie. Ivy and Barber were charged and tried separately

for Preston’s murder.

         Love testified at Ivy’s trial that she arrived at her apartment on November 20 in

the midst of the robbery. Donnica Hall arrived separately at Love’s apartment as several

men ran out of the apartment, one of whom stopped to cut the tires on Ivy’s car parked

outside, the keys to which had been taken during the robbery. Hall and the three men

who had been robbed filed a police report and then Hall drove the men back to their

hometown of Dayton, Ohio, to retrieve Ivy’s spare car keys. She then drove Ivy and


         1
             Ivy also claims the post-conviction court erred in finding that his petition was barred by laches. Given
that both the post-conviction court and this court discuss the merits of his claims, we need not decide this issue.
                                                         2
Barber back to Muncie, returning to Love’s apartment at approximately 4 a.m. on

November 21.

       Samuel Powell testified that at approximately 8 p.m. on November 21, he

encountered Ivy and Barber entering Horton’s apartment building as he exited. Preston

was at Horton’s apartment at that time, getting ready to go out for the evening. Around 8

p.m., Horton answered a knock on his door to find Ivy and Barber in the hallway. Horton

saw Ivy had a gun and fled to the apartment across the hall to call 911. He heard four or

five gunshots, then steps retreating down the stairs, and returned to his apartment to find

Preston bleeding on the floor.     On cross-examination, Horton testified that he was

currently in jail in Ohio for felony drug charges for which he faced a sentence of five to

fifteen years:

       Q [by defense counsel]: Mr. Horton have you been offered anything by the
       State uh, regarding that pending case you have for your testimony in Court
       today?
       A: No.
       Q: You expect that your testimony today is going to be taken into account
       in regards to his pending case that you have?
       A: No.

Trial Transcript at 564-65.

       Jimmy Powell testified that he saw Ivy a couple of days after Preston was killed,

and in response to Jimmy’s question about who would do that, Ivy said:

       A: He (inaudible) if he’d robbed you of two thousand.
       Q [by State]: Say anything else?
       A: Said how could you, you know embarrass you in front of, in front of
       (inaudible).

Id. at 593-94. Ivy also told Powell that he got a gun from his cousin. On cross-

examination, Powell indicated he, too, was currently in jail in Muncie awaiting trial:

                                             3
       Q [by defense counsel]: You been offered anything?
       A: No.
       Q: Do you expect leniency in return for your testimony for the State?
       A: (Inaudible).
       Q: Just here because you’re a good citizen?
       A: I did cause my friends did that’s why I did it.

Id. at 598.

       In his own defense, Ivy testified that after Hall drove him back to Muncie on

November 21, he retrieved his car and he and Barber returned to Dayton in the early

evening. Ivy dropped Barber off and went to Dale Reeder’s house, from where he called

his mother. His mother told him his great-grandfather had passed away. Ivy then picked

up his girlfriend LaDonna Simon and the two went to Ivy’s mother’s house, arriving

around 5:30 p.m. and staying with her the rest of the night. Simon also testified that Ivy

picked her up at home in Dayton approximately 5:30 p.m. on November 21 and they

went to his mother’s house, where they watched movies with her and stayed the night. At

no time that evening was Ivy gone long enough to have driven to Muncie and returned.

       Ivy, represented by a public defender, was found guilty of murder, a felony,

following a jury trial in 1998, and sentenced to sixty-five years in prison. On appeal, our

supreme court affirmed his conviction. Ivy v. State, 715 N.E.2d 408, 410 (Ind. 1999). In

2000, Ivy filed a pro se petition for post-conviction relief and was subsequently appointed

counsel. In 2005, however, Ivy’s public defender withdrew without the petition ever

having been acted upon. In 2010, this time with Ivy’s present counsel, Ivy again moved

for post-conviction relief. The post-conviction court held an evidentiary hearing and

issued findings of fact and conclusions of law denying Ivy’s requested relief. Ivy now

appeals. Additional facts will be provided as necessary.

                                            4
                                 Discussion and Decision

                                  I. Standard of Review

       “Post-conviction relief is not a substitute for a direct appeal. Post-conviction

procedures create a narrow remedy for subsequent collateral challenges to convictions.”

Martin v. State, 760 N.E.2d 597, 599 (Ind. 2002) (citations omitted). To succeed on

appeal from the denial of post-conviction relief, the petitioner must demonstrate that the

evidence is without conflict and leads unerringly and unmistakably to a conclusion

opposite that reached by the post-conviction court. Johnson v. State, 832 N.E.2d 985,

991 (Ind. Ct. App. 2005), trans. denied. A post-conviction court must make findings of

fact and conclusions of law, and the findings must be supported by the facts and the

conclusions must be supported by the law. Allen v. State, 749 N.E.2d 1158, 1164 (Ind.

2001), cert. denied, 535 U.S. 1061 (2002). The post-conviction court is the sole judge of

the weight of the evidence and the credibility of witnesses. Johnson, 832 N.E.2d at 991.

                                   II. Waiver of Issues

       In his 2010 petition for post-conviction relief, Ivy raised the following grounds for

relief: 1) ineffective assistance of trial counsel; 2) newly-discovered evidence; and 3)

prosecutorial misconduct at trial. The post-conviction court found Ivy had waived the

newly-discovered evidence and prosecutorial misconduct claims by failing to present

evidence with respect to these claims and by failing to raise them in his direct appeal. Ivy

contends the post-conviction court erred in finding waiver.

       If an issue is known and available on direct appeal but not raised, it is waived.

White v. State, 971 N.E.2d 203, 206 (Ind. Ct. App. 1012), trans. denied. Ivy contends the

State committed misconduct at his trial in statements it made during voir dire and closing
                                             5
argument. This alleged error was known and available at the time of Ivy’s direct appeal,

and the post-conviction court is correct that even Ivy’s “fundamental error” argument

about these statements is waived on post-conviction. See Lindsey v. State, 888 N.E.2d

319, 325 (Ind. Ct. App. 2008) (noting a claim of fundamental error on post-conviction

can only be made in the context of an ineffective assistance claim or if the issue was

demonstrably unavailable at the time of trial and direct appeal), trans. denied. To the

extent Ivy argues ineffective assistance of his trial counsel in failing to object to this

alleged misconduct, that claim is allowed on post-conviction and Ivy did provide the

transcript of the trial and question his trial counsel about that issue at the post-conviction

hearing, however briefly.     We will therefore address Ivy’s prosecutorial misconduct

claim within the context of our ineffective assistance of counsel discussion below.

       With respect to Ivy’s newly discovered evidence claim, he did present both the

trial testimony and current deposition testimony of certain witnesses to support his claim,

and part of his claim is that it was evidence unknown to him at the time of trial. The

post-conviction court erroneously found this claim was waived, and we will address its

merits below.

                           III. Ineffective Assistance of Counsel

              Ineffective assistance of counsel claims are governed by the two-part
       test announced in Strickland v. Washington . . . . First, the defendant must
       show that counsel’s performance was deficient. This requires a showing
       that counsel’s representation fell below an objective standard of
       reasonableness and that the errors were so serious that they resulted in a
       denial of the right to counsel guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. To establish prejudice, a defendant
       must show that there is a reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceeding would have been

                                              6
       different. A reasonable probability is a probability sufficient to undermine
       confidence in the outcome.

Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002) (internal citations omitted). There is a

strong presumption that counsel’s representation was adequate, and counsel is afforded

considerable discretion in choosing strategy and tactics. Stevens v. State, 770 N.E.2d

739, 746-47 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). “Isolated mistakes, poor

strategy, inexperience, and instances of bad judgment do not necessarily render

representation ineffective.” Id. at 747.

                                     A. Alibi Witnesses

       Ivy first argues his counsel’s performance was deficient because counsel “called

only Ivy and Ivy’s girlfriend at trial to establish Ivy’s alibi,” and “[a]t least four (4) other

witnesses were available to testify” as to Ivy’s alibi that he was in Dayton during the

shooting. Appellant’s Brief at 14. We disagree. Ivy’s counsel filed a notice of alibi, and

at trial called Ivy and his girlfriend to testify as to his alibi that he was in Dayton during

the time of the shooting. The testimony of additional witnesses to the same effect would

merely have been cumulative of the evidence already presented, especially in light of

contradictory testimony by State witnesses that Ivy was in Horton’s apartment when

Preston was shot. This is unlike Williams v. State, 508 N.E.2d 1264 (Ind. 1987), which

Ivy cites to support his argument, where a defendant’s attorney filed a notice of alibi but

then made no effort to depose the alibi witnesses, obtain affidavits from them, subpoena

them, or otherwise ensure their attendance at trial, blaming the defendant’s lack of funds

to pursue those witnesses for his failure. Id. at 1267. In those circumstances, our

supreme court concluded the defendant’s counsel’s performance was deficient because he

                                               7
failed to produce any evidence at all from available sources in support of an alibi defense

and that without such deficient performance there was a reasonable likelihood that the

outcome of his trial would have been different. Id. at 1267-68. Here, Ivy’s counsel did

present evidence supporting his alibi defense, including the testimony of Ivy and another

witness. That he did not present every alibi witness identified by Ivy is a strategic

decision, especially when the testimony adduced at the post-conviction hearing indicated

inconsistencies across all alibi witnesses’ stories and other potentially problematic issues

with the witnesses. See McCullough v. State, 973 N.E.2d 62, 83 (Ind. Ct. App. 2012)

(“[I]n the context of an ineffective assistance claim, a decision regarding what witnesses

to call is a matter of trial strategy which an appellate court will not second-guess.”)

(quotations omitted).

                                 B. Rule 404(b) Evidence

       Ivy next argues his counsel’s performance was deficient because he failed “to

object to testimony as to Ivy’s prior acts after counsel’s Motion in Limine as to those

same matters had been granted by the trial court prior to trial.” Appellant’s Br. at 15.

However, a motion in limine “is not a final ruling on the admissibility of evidence.”

Watson v. State, 972 N.E.2d 378, 386 (Ind. Ct. App. 2012) (quoting Simmons v. State,

760 N.E.2d 1154, 1158 (Ind. Ct. App. 2002)). Thus, a defendant must reassert his

objection contemporaneously with the introduction of the evidence to allow the trial court

an opportunity to make a final ruling in the context in which the evidence is introduced.

White v. State, 687 N.E.2d 178, 179 (Ind. 1997). When an appellant brings an ineffective

assistance claim based upon trial counsel’s failure to make an objection, the appellant

must demonstrate that the trial court would have sustained a proper objection, and that
                                             8
failure to object resulted in prejudice. Glotzbach v. State, 783 N.E.2d 1221, 1224 (Ind.

Ct. App. 2003).

      “Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Ind. Evidence Rule 404(b). Ivy

argues his counsel should have objected to Love’s testimony that when Ivy and Barber

returned to her apartment in the early morning hours of November 21, Ivy struck her with

a handgun and stated they had been robbed of cocaine. Ivy contends this evidence could

be construed as evidence of battery and possession of cocaine. The State argues Love’s

testimony was evidence “inextricably bound with or intrinsic to the charged offense” in

that they were a series of connect events. Brief of Appellee at 19. Even if Ivy’s counsel

should have objected because the testimony was evidence of another crime, Ivy has not

shown that he was prejudiced by such failure to object. There was ample evidence to

support his conviction for murder, including the testimony of two witnesses who stated

they saw Ivy at the scene of the murder holding a handgun.

                              C. Prosecutorial Misconduct

      To prevail on a claim of ineffective assistance due to prosecutorial misconduct, a

post-conviction petitioner must show that prosecutorial misconduct in fact occurred.

Pruitt v. State, 903 N.E.2d 899, 928 (Ind. 2009). A court applies a two-step test in

deciding claims of prosecutorial misconduct. Gasaway v. State, 547 N.E.2d 898, 901

(Ind. Ct. App. 1989), trans. denied.     First, the court must determine whether the

prosecutor in fact engaged in misconduct. Id. This determination is made by referencing
                                           9
case law and the Rules of Professional Conduct.          Second, the court must consider

whether the misconduct, under the totality of the circumstances, placed the defendant in a

position of grave peril to which he should not have been subjected. Id. The prosecutorial

conduct at issue consists of two portions of the State’s closing argument. First, the State

made comments leveraging its own personal integrity and character in support of its case.

Second, the State referenced the fact that Ivy’s mother was not in the courtroom and did

not testify in his defense.

       We conclude that even if the State’s comments constituted misconduct, Ivy was

not placed in a position of grave peril. As we have reiterated, among other incriminating

evidence, two witnesses placed Ivy at the scene of the murder in possession of a handgun.

It is unlikely the State’s statements impacted the jury’s decision-making process in light

of the large body of evidence supporting Ivy’s guilt. Ivy has failed to meet his burden of

proving he was denied the effective assistance of trial counsel in any respect.

                              IV. Newly Discovered Evidence

       Ivy argues the post-conviction court erred in concluding there was no new

evidence that arose after Ivy’s trial. Ivy notes that at trial Horton and Jimmy Powell

testified for the State and stated they were incarcerated on pending charges but did not

expect leniency in return for their testimony; however, after Ivy’s trial evidence arose

suggesting they did expect leniency. Specifically, Ivy points out that Horton was only

sentenced to one year in prison despite facing a potential sentence of five to fifteen years,

and Powell subsequently stated in a deposition that he lied at trial about not expecting

leniency in exchange for his testimony:


                                             10
      Q [Ivy’s post-conviction counsel]: Was there any reason that you’re aware
      of that they dropped it from an A to a C?
      A: I’m almost for sure they did it for me testifying.
      ***
      Q.      So, at trial it’s in – he asks you, do you expect leniency and have you
      been offered any, and you said, no. And he asks, do you expect leniency,
      and it’s inaudible, your answer is. But then he says, just here because
      you’re a good citizen. And then, you see, I did, cause [sic] my friends did
      it.
              So, you never testified at trial that there was any kind of
      consideration you were being given for your testimony, is that correct?
      A.      Yep.
      Q.      So, when you make that statement at trial that wasn’t true, is that
      correct?
      A.      No, I knew that was going to give me some leniency.
      Q.      So, you didn’t tell the truth in your testimony there, did you?
      A.      No, sir.
      ***
      Q [State]: Mr. Powell, at first you said that there was no agreement with
      the State before you were sentenced and that you had no understanding
      what the prosecutor in your case as regarding a sentence for you [sic], is
      that correct?
      A:      Yeah, but I knew they was [sic] going to give me some leniency.
      Q:      How is it that you knew that they were going to give you something?
      A:      It was unwritten rule. I knew with my testimony they would give
      me a break.
      Q:      Oh, was it just your belief that if you testified that they would give
      you something?
      A:      They – I knew they would.
      Q:      Were you contacted by anyone from the prosecutor’s office stating
      that if you provided testimony in the Ivy case . . . being given some sort of
      consideration in your pending criminal matter?
      A:      No, but the detectives did.

Powell Deposition Transcript at 12-13, 15, 19.

      As our supreme court has stated:

      [N]ew evidence will mandate a new trial only when the defendant
      demonstrates that : (1) the evidence has been discovered since the trial; (2)
      it is material and relevant; (3) it is not cumulative; (4) it is not merely
      impeaching; (5) it is not privileged or incompetent; (6) due diligence was
      used to discover it in time for trial; (7) the evidence is worthy of credit; (8)
      it can be produced upon a retrial of the case; and (9) it will probably
      produce a different result at retrial.
                                            11
Taylor v. State, 840 N.E.2d 324, 329-30 (Ind. 2006) (quoting Carter v. State, 738 N.E.2d

665, 671 (Ind. 2000)). The burden of demonstrating all nine requirements rests with the

petitioner. Id. at 330.

       We conclude Ivy has failed to demonstrate all nine requirements.            First, the

evidence is merely impeaching. If the evidence demonstrated that an express agreement

was formed between the State and Powell or Horton, such evidence would be more than

merely impeaching, but preliminary discussions of such an agreement or a witness’s hope

of leniency are not required to be disclosed by the State, Tolliver v. State, 922 N.E.2d

1272, 1285 (Ind. Ct. App. 2010), trans. denied, and such evidence is therefore only

valuable so as to impeach the testimony of the witness.

       Second, because the evidence is merely impeaching, and because a witness other

than Powell and Horton placed Ivy at the scene of the murder in possession of a handgun,

we cannot conclude Ivy has demonstrated that the newly found evidence would probably

produce a different result at retrial. Thus, the post-conviction court did not err in denying

Ivy relief based on a claim of newly discovered evidence.

                                        Conclusion

       Ivy has failed to demonstrate that the evidence leads unmistakably to a conclusion

opposite that reached by the post-conviction court on any of his claims for relief, and we

therefore affirm the judgment of the post-conviction court denying him relief.

       Affirmed.

MAY, J., and PYLE, J., concur.




                                             12
