MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Nov 06 2015, 11:09 am
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.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
James Watkins                                           Gregory F. Zoeller
Michigan City, Indiana                                  Attorney General of Indiana

                                                        Jodi Kathryn Stein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Watkins,                                          November 6, 2015
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        49A04-1410-PC-482
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Kurt M. Eisgruber,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        49G01-9910-PC-171334



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-482| November 6, 2015   Page 1 of 9
                                       Statement of the Case
[1]   James Watkins appeals the post-conviction court’s denial of his petition for

      post-conviction relief. Watkins raises the following two issues for our review:

              1.      Whether his trial counsel rendered ineffective assistance
                      when he failed to object to the admission of certain
                      evidence.


              2.      Whether his appellate counsel rendered ineffective
                      assistance when she did not raise on direct appeal an issue
                      with respect to a purported error in the jury instructions.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts underlying Watkins’ convictions and sentence were stated by this

      court in his direct appeal:

              Jimmy Anderson (“Anderson”) and Cara Edwards (“Edwards”)
              lived together at the Wingate Village Apartments. Anderson sold
              marijuana to friends and neighbors [who] lived in the apartment
              complex. On the morning of September 15, 1999, Edwards left
              for work and locked the deadbolt to her apartment with her key,
              while Anderson remained asleep in bed. At 11:14 that morning
              Edwards called Anderson and told him that she was going to
              come home during her lunch hour and smoke a joint. Minutes
              later, Star Easley (“Easley”), who lived in a neighboring
              apartment, saw three men leave Anderson and Edwards’
              apartment building. Phone calls placed to Anderson’s apartment
              between 11:38 a.m. and 11:45 a.m. went unanswered. Edwards
              and two of her co-workers clocked out of work at 11:45 and
              drove to her apartment. When they arrived several minutes later

      Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-482| November 6, 2015   Page 2 of 9
              at the apartment Edwards unlocked the dead-bolted door and
              found Anderson dead on the floor. Anderson’s gold chain, his
              wallet with $250.00, his keys, and two ounces of marijuana were
              gone.


              One of the individuals to whom Anderson had previously sold
              marijuana was Watkins’ brother, neighbor Ezra Watkins
              (“Ezra”). Ezra lived in an apartment building situated
              perpendicular to that of Anderson and Edwards. Easley
              identified Ezra and Watkins as two of the three men that she saw
              leaving Edwards’ apartment that day.


              Anderson died as a result of five stab wounds to his neck. The
              wounds were caused by a knife with a blade length of four to five
              inches and a width of ¾ of an inch. A knife matching this
              description was found in Watkins’ apartment. The stab wounds
              to Anderson’s neck cut through his carotid artery and into the
              cartilage of his larynx. No defensive wounds were found on
              Anderson’s body.


              Watkins told police that he had never been inside Anderson’s
              apartment[;] however[,] Watkins’ right palm print was
              discovered on the south foyer wall near Anderson’s body. The
              State charged Watkins with Felony Murder, Murder, and
              Robbery as an A felony. The jury found Watkins guilty as
              charged. The trial court, noting double jeopardy concerns,
              entered a judgment of conviction against Watkins for Murder
              and Robbery as a class B felony. . . .


      Watkins v. State, 766 N.E.2d 18, 20-21 (Ind. Ct. App. 2002) (footnote omitted),

      trans. denied (“Watkins I”).


[4]   In his direct appeal, Watkins, by counsel, raised three issues for our review.

      Specifically, Watkins argued that his convictions were not supported by

      Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-482| November 6, 2015   Page 3 of 9
      sufficient evidence; that his convictions violated the Indiana Double Jeopardy

      Clause; and that the prosecutor had committed misconduct during the jury trial.

      We rejected each of these arguments and affirmed Watkins’ convictions. Id. at

      20.


[5]   On May 18, 2010, Watkins filed his petition for post-conviction relief. In his

      petition, Watkins alleged, in relevant part, fundamental error in the admission

      of evidence and in the instructions to the jury. Watkins further alleged that the

      same errors resulted in, respectively, the ineffective assistance of trial and

      appellate counsel. On April 15, 2014, the post-conviction court held an

      evidentiary hearing on Watkins’ petition. Thereafter, the court entered findings

      of fact and conclusions of law in which it denied the petition. This appeal

      ensued.


                                     Discussion and Decision
                                            Standard of Review

[6]   Watkins appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review in such appeals is clear:

              [The petitioner] bore the burden of establishing the grounds for
              post[-]conviction relief by a preponderance of the evidence. See
              Ind. Post-Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d
              591, 597 (Ind. 2001). Post-conviction procedures do not afford a
              petitioner with a super-appeal, and not all issues are available.
              Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral
              challenges to convictions must be based on grounds enumerated
              in the post-conviction rules. Id. If an issue was known and


      Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-482| November 6, 2015   Page 4 of 9
              available, but not raised on direct appeal, it is waived. Id. If it
              was raised on appeal, but decided adversely, it is res judicata. Id.

              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting the post-conviction court’s judgment. Hall v. State,
              849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is
              the sole judge of the evidence and the credibility of the witnesses.
              Id. at 468-69. Because he is now appealing from a negative
              judgment, to the extent his appeal turns on factual issues [the
              petitioner] must convince this court that the evidence as a whole
              leads unerringly and unmistakably to a decision opposite that
              reached by the post-conviction court. See Timberlake, 753 N.E.2d
              at 597. We will disturb the decision only if the evidence is
              without conflict and leads only to a conclusion contrary to the
              result of the post-conviction court. Id.


      Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.


[7]   On appeal, Watkins argues that his trial counsel rendered ineffective assistance

      when he failed to object to the State’s admission of a demonstrative knife that

      matched the murder weapon and was found in a residence frequently visited by

      Watkins. Watkins also argues that his appellate counsel rendered ineffective

      assistance when she did not raise an issue with respect to a purportedly

      erroneous jury instruction on direct appeal. Generally, a claim of ineffective

      assistance of counsel must satisfy two components. Strickland v. Washington,

      466 U.S. 668 (1984). First, the criminal 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. Id. at 687-88. Second, the

      Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-482| November 6, 2015   Page 5 of 9
      criminal 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. at

      694. We address each of Watkins’ issues on appeal in turn.1


                                           Issue One: Trial Counsel

[8]   Watkins asserts that his trial counsel rendered ineffective assistance when he

      failed to object to the State’s admission of Exhibit 51. This exhibit, a knife that

      had been retrieved from a residence frequently visited by Watkins and that

      matched the dimensions of the murder weapon, was admitted not as “the

      murder weapon” but, rather, only as demonstrative evidence. As such, at the

      evidentiary hearing on Watkins’ post-conviction petition, his trial counsel

      testified as follows:


              Q     . . . [D]o you think you felt at the time that [the knife] was
              admissible?


              A       I may have, but it’s been too long. I may have thought[,]
              if I object, it will be overruled. I may have thought it doesn’t
              hurt . . . . That was my feeling going in, that this knife was a red




      1
         Throughout his brief on appeal, Watkins makes references to allegedly “fundamental” errors and various
      rights under the Indiana Constitution. E.g., Appellant’s Br. at 4. Freestanding claims of fundamental error
      are not available for post-conviction review. Lindsey, 888 N.E.2d at 325. As such, we do not consider those
      claims. And Watkins’ purported arguments under the Indiana Constitution are not supported by cogent
      reasoning or citation to authority. See Ind. Appellate Rule 46(A)(8)(a). Thus, we also do not consider those
      assertions.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-482| November 6, 2015             Page 6 of 9
              herring. That wasn’t what was going to convict James. The bloody
              print and the eyewitness was going to convict James.


                                                     ***


               . . . To me it had no impact. It wasn’t germane. It wasn’t
              persuasive in my mind to anything. Here’s a knife that we found.
              No serology, no blood, no DNA, no fingerprints . . . so I’m
              thinking so what?


                                                     ***


              Q     Did you consider objecting to the implication without any
              foundation that that could have been the murder weapon?


              A      I don’t recall if I thought about objecting, but I adhere to
              the rule that simply because you can object doesn’t mean that
              you should. We’re in the middle of final, and when you object in final,
              sometimes you run the risk of highlighting to the jury what you don’t
              want them to consider.


      P-C Tr. at 14-17 (emphases added).


[9]   Thus, the decision of Watkins’ trial counsel to not object to the admission of

      State’s Exhibit 51 was a matter of trial strategy. “[W]e do not second-guess

      strategic decisions requiring reasonable professional judgment even if the

      strategy or tactic, in hindsight, did not best serve the defendant’s interests.”

      State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997). But that is what Watkins

      invites us to do now; he asks that we second-guess his trial counsel’s strategic

      decision to not draw emphasis to evidence counsel had concluded to be a red


      Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-482| November 6, 2015   Page 7 of 9
       herring. We will not second-guess this decision. As such, Watkins cannot

       show that the post-conviction court’s conclusion that he did not receive

       ineffective assistance of trial counsel is clearly erroneous.


                                      Issue Two: Appellate Counsel

[10]   Watkins next asserts that he received ineffective assistance from his appellate

       counsel when she failed to raise on direct appeal an issue with respect to a

       purportedly erroneous jury instruction. “Ineffectiveness is very rarely found in

       these cases.” Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997) (quotations and

       alteration omitted).


               One reason for this is that the decision of what issues to raise is
               one of the most important strategic decisions to be made by
               appellate counsel. Experienced advocates since time beyond
               memory have emphasized the importance of winnowing out
               weaker arguments on appeal and focusing on one central issue if
               possible, or at most a few key issues. . . . Accordingly, when
               assessing these types of ineffectiveness claims, reviewing courts
               should be particularly deferential to counsel’s strategic decision
               to exclude certain issues in favor of others, unless such a decision
               was unquestionably unreasonable.


       Id. at 193-94 (quotations and citations omitted).


[11]   Here, Watkins argues that the jury instruction on accomplice liability was

       erroneous because it failed to inform the jury that, to be liable as an accomplice,

       the State had to prove that Watkins “engaged in voluntary conduct in concert

       with his accomplice.” Appellant’s Br. at 14. As such, Watkins continues, his

       appellate counsel rendered ineffective assistance when she failed to raise the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-482| November 6, 2015   Page 8 of 9
       erroneous jury instruction on direct appeal. Instead, Watkins’ appellate counsel

       challenged the sufficiency of the evidence, whether Watkins’ convictions

       violated double jeopardy, and whether the prosecutor committed misconduct.


[12]   The jury-instruction issue was not a clearly stronger issue than the issues raised

       by Watkins’ counsel on direct appeal. Watkins’ trial counsel did not object to

       the jury instructions on the grounds Watkins now asserts them to have been

       erroneous. Trial Tr. at 830. As such, had Watkins’ appellate counsel raised

       this issue on direct appeal, the likely result would have been for this court to

       simply note that the issue had not been preserved for review. Thus, Watkins

       cannot demonstrate that the post-conviction court’s conclusion that he did not

       receive ineffective assistance from his appellate counsel is clearly erroneous,

       and we affirm the post-conviction court’s judgment.


[13]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




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