MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Apr 18 2019, 8:28 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
Borahm Kim                                               Caroline G. Templeton
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Edward Lay,                                              April 18, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1598
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Respondent.                                     Judge
                                                         The Honorable Stanley Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1407-PC-34413



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019                     Page 1 of 25
                               Case Summary and Issues
[1]   Following a jury trial, Edward Lay was found guilty of two counts of murder, a

      felony, and one count of attempted murder, a Class A felony. The trial court

      sentenced Lay to an aggregate sentence of 140 years executed in the Indiana

      Department of Correction. On direct appeal, we affirmed Lay’s convictions.

      Lay v. State, No. 49A05-1208-CR-387 (Ind. Ct. App. Apr. 30, 2013), trans.

      denied. Thereafter, Lay filed a petition for post-conviction relief wherein he

      alleged ineffective assistance of trial and appellate counsel, which the post-

      conviction court denied. Lay now appeals, raising two issues for our review:

      (1) whether the post-conviction court erred in concluding Lay’s trial counsel

      was not ineffective, and (2) whether the post-conviction court erred in

      concluding Lay’s appellate counsel was not ineffective. Concluding Lay did

      not receive ineffective assistance of trial or appellate counsel, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in Lay’s direct

      appeal:


              In August 2011, Lay, estranged from his wife, was dating Mary
              Swift. Lay had recently moved into Mary’s Fountain Square
              home in Indianapolis, in which Mary’s nine-year-old daughter
              Alley, Mary’s twenty-year-old daughter Brittany Swift, Brittany’s
              one-year-old son, and Brittany’s boyfriend Joshua Edenfield also
              lived.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 2 of 25
        On the evening of Thursday, August 11, 2011, Lay’s longtime
        friend Ron Kortz and his fiancee Kelly Jinks went to Mary’s
        house to celebrate their new home and Ron’s acceptance back
        into college. Ron and Kelly arrived around 8:00 p.m. with a
        bottle of Patron tequila. They went to Mary and Lay’s bedroom,
        which was the normal place to “hang out.” Brittany joined the
        party while Josh was at work. After the Patron tequila was gone,
        Lay and Ron went to a friend’s house to get more tequila. After
        the second bottle of tequila was gone, Ron went with Josh, who
        had just returned home from work, to the liquor store and bought
        two bottles of Bambitos tequila. Josh did not drink any alcohol
        that night.


        Sometime during the night, nine-year-old Alley was awakened by
        Lynyrd Skynyrd’s “Sweet Home Alabama” coming from the
        bedroom. She went downstairs to complain because she had
        school in the morning. Mary and Brittany asked Lay to turn
        down the music, but he refused. An argument ensued, and Mary
        and Brittany told Lay to leave. Lay refused, calling Mary and
        Brittany “fuc*ing bit* *es,” “who*es,” and “cun*s who “couldn't
        tell him what to do.” A shoving match ensued between Mary
        and Brittany and Lay. As Mary and Brittany inched Lay out the
        door, he grabbed a black bag that was inside a box. At the time,
        no one knew what was inside the black bag.


        The arguing continued in the kitchen and then spilled out onto
        the back porch, where Lay continued to yell that Mary and
        Brittany could not make him leave. Brittany responded that Lay
        was being “disrespectful” and “need[ed] to go for the night” but
        “c[ould] come back tomorrow.” Lay responded, “Well I got my
        40, bit* *.” Lay then backed down the ramp from the back porch
        toward the area where the cars were parked. Josh tried to calm
        Lay down; however, Lay put a gun to Josh’s face and said
        something that Josh could not understand. Josh swatted the gun
        away, saying, “Hey, I’m not down here to fight.” Lay turned


Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 3 of 25
        around and went to the passenger side of Kelly’s car, where Ron
        and Kelly tried to get him inside.


        The situation did not diffuse; rather, it escalated. Lay began
        threatening Brittany, so she swung at him and missed. Lay then
        hit Brittany in the face four or five times, which prompted her
        mother Mary to join the melee. Ron pulled Brittany away and
        brought her to where Josh was standing at the bottom of the
        ramp. Josh tried to corral Mary and bring her back toward the
        house, but he failed. Josh managed to move Brittany farther up
        the ramp as Mary yelled at Lay and hit him in retribution for
        hitting her daughter.


        As Josh turned back toward the cars, he heard three or four
        gunshots that happened “so fast” and then saw Lay running
        away. He also saw Ron asking Kelly if she had been hit.
        Brittany, however, saw Lay push Mary down to her hands and
        knees, point the gun at her from behind, and then she heard gun
        shots. Brittany did not see Lay pull the trigger because she fell
        through a loose board on the ramp. Brittany ran to her mother.
        When Brittany realized her mother was not able to talk, she ran
        back to her sister, Alley, who was screaming on the back porch.
        Lay shot Mary, Kelly, and Ron. Josh called 911 to report the
        shootings.


        Ron suffered a gunshot wound to his right shoulder. According
        to Ron, Lay shot him as he confronted Lay for shooting Kelly.
        Ron took a few steps and collapsed in the alley by Kelly. When
        Ron landed, he saw Mary on the ground near the car.


        Ron was taken to the hospital where he underwent surgery and
        was released a week later. He now has no feeling in his right arm
        and cannot hold a coffee cup in his right hand.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 4 of 25
              Mary and Kelly, however, suffered fatal wounds. Mary was
              dead when emergency personnel arrived. Mary suffered a
              gunshot wound to the top of her head. The bullet traveled
              downward and exited the right side of her forehead, lacerating
              her brain and fracturing her skull. Kelly was taken to the hospital
              but was pronounced dead a couple hours later. Kelly suffered a
              gunshot wound to her chest and left buttock. The gunshot
              wound to Kelly’s chest perforated her diaphragm and lacerated
              her liver, causing blood accumulation in her right chest cavity.
              The other gunshot wound traveled across Kelly’s pelvic cavity
              and landed in her right hip. Kelly died as a result of blood loss
              from both gunshot wounds.


              The police apprehended Lay within a few blocks of the scene.
              Four spent shell casings were found at the scene.


              The State charged Lay with the murders of Mary and Kelly and
              the attempted murder of Ron. A two-day jury trial was held in
              June 2012, during which Lay argued self-defense.


      Id. at *1-3 (citations and footnote omitted).


[3]   At trial, Dr. Ken Obenson, a forensic pathologist, testified that the gunshot

      wound to Mary entered at the top of her head on the left side, travelled

      downward, and exited above her right brow. He further testified that exit

      wounds tend to be smaller than entrance wounds and that entrance wounds

      generally have abrasion collars caused by the bullet rubbing the skin around it.


[4]   During trial, Lay’s counsel tendered instructions for the lesser-included offenses

      of voluntary manslaughter for Count I, involuntary manslaughter and reckless

      homicide for Count II, and criminal recklessness for Count III. The trial court


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 5 of 25
      granted Lay’s request for voluntary manslaughter instructions to be given on

      Count I. Trial counsel then withdrew the tendered instruction on involuntary

      manslaughter for Count II and proceeded with an instruction on reckless

      homicide in order “to keep it clean.” [Trial] Transcript, Volume II at 303. The

      trial court also gave the State’s requested instruction on transferred intent.


[5]   On June 26, 2012, the jury found Lay guilty as charged, i.e., guilty of two

      counts of murder, both felonies, and one count of attempted murder, a Class A

      felony. On July 19, 2012, the trial court sentenced Lay to an aggregate term of

      140 years.


[6]   On direct appeal, Lay’s appellate counsel raised three issues: (1) whether the

      trial court committed fundamental error by allowing the parties to make

      additional argument to the jury in response to the jury’s question about

      transferred intent during deliberations; (2) whether the evidence was sufficient

      to sustain his convictions; and (3) whether his 140–year sentence was

      inappropriate. Lay, No. 49A05-1208-CR-387 at *3. A panel of this court

      affirmed the trial court in all respects. Id. at *1.


[7]   On July 7, 2014, Lay filed a pro se petition for post-conviction relief, later

      amended by counsel, alleging ineffective assistance of trial and appellate

      counsel. Evidentiary hearings were held on August 16, 2016, January 17, 2017,

      and March 20, 2018. On June 8, 2018, the post-conviction court issued written

      findings of fact and conclusions of law denying Lay’s petition. Lay now




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 6 of 25
      appeals the denial of post-conviction relief. Additional facts will be supplied as

      necessary.



                                 Discussion and Decision
                                     I. Standard of Review
[8]   Post-conviction proceedings are civil in nature and the petitioner must therefore

      establish his claims by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5). These proceedings, however, are not an opportunity for a super-

      appeal. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537

      U.S. 839 (2002). “The post-conviction court is the sole judge of the weight of

      the evidence and the credibility of witnesses.” Woods v. State, 701 N.E.2d 1208,

      1210 (Ind. 1998), cert. denied, 528 U.S. 861 (1999). Thus, we may not reweigh

      the evidence or reassess the credibility of the witnesses and we consider only the

      evidence and reasonable inferences supporting the judgment. Hall v. State, 849

      N.E.2d 466, 468-69 (Ind. 2006). The petitioner must show that the evidence is

      without conflict and leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Strowmatt v. State, 779

      N.E.2d 971, 975 (Ind. Ct. App. 2002).


[9]   Where, as here, the post-conviction court makes findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

      cannot affirm the judgment on any legal basis, but rather, we must determine if

      the court’s findings are sufficient to support its judgment. Graham v. State, 941

      N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962. We
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 7 of 25
       accept the post-conviction court’s findings of fact unless they are clearly

       erroneous, but we do not defer to the post-conviction court’s conclusions of

       law.1 Wilson v. State, 799 N.E.2d 51, 53 (Ind. Ct. App. 2003).


           II. Ineffective Assistance of Trial and Appellate Counsel
                                        A. Standard of Review
[10]   Lay claims the post-conviction court erred in concluding his trial and appellate

       counsel were not ineffective. Specifically, he claims he was denied the effective

       assistance of trial counsel when counsel failed to object to final jury instructions

       30 and 31, failed to request a voluntary manslaughter instruction for the killing

       of Kelly, and failed to call an expert witness to rebut the testimony of the State’s

       pathologist. Lay also claims he was denied the effective assistance of appellate

       counsel when appellate counsel failed to argue that the error in final jury

       instructions 30 and 31 was fundamental error.


[11]   The standard for ineffective assistance of both trial and appellate counsel is the

       same. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). We review claims of

       ineffective assistance of counsel under the two-prong test set forth in Strickland

       v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, the petitioner

       must show 1) his counsel’s performance was deficient, and 2) the lack of

       reasonable representation prejudiced him. Id. at 687. These two prongs are



       1
        Although we do not defer to the post-conviction court’s conclusions of law, we commend the post-
       conviction court for its thorough and well-reasoned Findings of Fact and Conclusions of Law Denying Post-
       Conviction Relief, which has aided our review of this case.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019                Page 8 of 25
       separate and independent inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind.

       Ct. App. 2014), trans. denied, cert. denied, 135 S.Ct. 2376 (2015). Therefore, “if it

       is easier to dispose of an ineffectiveness claim on one of the grounds instead of

       the other, that course should be followed.” Talley v. State, 736 N.E.2d 766, 769

       (Ind. Ct. App. 2000).


[12]   The first prong requires that the petitioner show counsel’s representation fell

       below an objective standard of reasonableness and that counsel committed

       errors so serious that petitioner did not have “counsel” as guaranteed by the

       Sixth Amendment of the United States Constitution. Garrett, 992 N.E.2d at

       718-19. To satisfy the second prong, the petitioner must show a reasonable

       probability that, but for counsel’s errors, the result of the proceeding would

       have been different. Id. at 719. “A reasonable probability is a probability

       sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

       694.


[13]   We afford counsel “considerable discretion in choosing strategy and tactics, and

       we will accord those decisions deference.” Timberlake, 753 N.E.2d at 603. We

       also recognize a strong presumption that counsel rendered adequate legal

       assistance. Id. The defendant must offer “strong and convincing evidence to

       overcome this presumption.” Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App.

       2005), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 9 of 25
                                            B. Trial Counsel
[14]   Lay argues the post-conviction court erred in concluding his trial counsel was

       not ineffective because his trial counsel failed to object to final jury instructions

       30 and 31, failed to request an instruction, and failed to call an expert witness.


                                            1. Instructional Error

[15]   First, Lay alleges that his trial counsel should have objected to final jury

       instructions 30 and 31. Relevant here, the trial court provided the following

       final jury instructions:


                                         [Final Jury Instruction 30]


                      The defendant is charged with murder a felony. Voluntary
               manslaughter a Class A felony, is included in Count I, murder a
               felony. If the State proves the defendant guilty of murder a felony, you
               need not consider the included crime. However, if the State fails to
               prove the defendant committed murder a felony, you may
               consider whether the defendant committed voluntary
               manslaughter a Class A felony, which the court will define for
               you.


                     You must not find the defendant guilty of more than one
               crime for each count.


                                         [Final Jury Instruction 31]


                        The crime of murder is defined by law as follows:


                    A person who knowingly or intentionally kills another
               human being, commits murder, a felony. Included in the charge

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 10 of 25
        in this case is the crime of voluntary manslaughter, which is
        defined by the law as follows: A person who knowingly or
        intentionally kills another human being while acting under
        sudden heat commits voluntary manslaughter, a Class B felony.
        The offense is a Class A felony if it is committed by means of a
        deadly weapon.


               Sudden heat is a mitigating factor that reduces what
        otherwise would be murder to voluntary manslaughter. The
        State has the burden of proving beyond a reasonable doubt that
        the defendant was not acting under sudden heat.


              Before you may convict the defendant, the State must have
        proved each of the following beyond a reasonable doubt:


                 1.      The defendant, Edward L. Lay


                 2.      knowingly or intentionally


                 3.      killed


                 4.      another human being, namely: Mary Swift, by
                         shooting a deadly weapon, that is: a gun, at and
                         against the person of Mary Swift, thereby inflicting
                         mortal injuries upon Mary Swift, causing Mary
                         Swift to die


                 5.      and the defendant was not acting under sudden heat


                 6.      and the defendant killed by means of a deadly
                         weapon.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 11 of 25
                     If the State failed to prove each of these elements 1
               through 4 beyond a reasonable doubt, you must find the
               defendant not guilty of murder as charged in Count I.


                       If the State did prove each of these elements 1 through 4
               and element 6 beyond a reasonable doubt, but the State failed to
               prove beyond a reasonable doubt element 5, you may find the
               defendant guilty of voluntary manslaughter, a Class A felony, a
               lesser included offense of Count I.


                    If the State did prove each of these elements 1 through 5
               beyond a reasonable doubt, you may find the defendant guilty of
               murder, a felony as charged in Count I.


       [Direct Appeal] Appellant’s Appendix at 209-11 (capitalization omitted and

       emphasis added).


[16]   Lay’s argument regarding the failure to object to the jury instructions is

       twofold. He first alleges there was a sequencing error regarding the sentence in

       final jury instruction 30 that provides, “If the State proves the defendant guilty

       of Murder a felony, you need not consider the included crime.” Id. at 209.

       Specifically, Lay contends that the sentence “erroneously precluded the jury

       from considering voluntary manslaughter if they found Lay committed a

       knowing killing even though voluntary manslaughter (Ind. Code 35-42-1-3) and

       murder (Ind. Code 35-42-1-1(1)) have the same elements—a knowing or

       intentional killing of another person.” Brief of Petitioner-Appellant at 17. Lay

       further alleges that although “[t]rial counsel did not see the error at the time of

       trial . . . [s]he now agrees the instruction was erroneous and the failure to object


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 12 of 25
       to it was a glaring error.” Id. at 18. This failure to object, Lay contends,

       constituted deficient performance.


[17]   Second, Lay alleges that final jury instruction 31 “incorrectly lists sudden heat

       as an element” when, in fact, it is a “mitigating factor that reduces what would

       otherwise be murder to voluntary manslaughter.” Id. at 19. Specifically, Lay

       contends that “[a]lthough final instruction 31 does in one place correctly

       address sudden heat as a mitigating factor, the error of additionally addressing

       it as an element[,] coupled with the sequencing error in final instruction 30,

       precluded the jury from properly considering voluntary manslaughter.” Id. at

       19-20.


[18]   Assuming for the purposes of this appeal that trial counsel’s failure to object to

       final jury instructions 30 and 31 constituted deficient performance, Lay fails to

       carry his burden to show that but for counsel’s failure to object, there is a

       reasonable probability that the outcome of his trial would have been different.

       See Benefield v. State, 945 N.E.2d 791, 805 (Ind. Ct. App. 2011). Our supreme

       court has previously explained:


                When determining whether a defendant suffered a due process
                violation based on an incorrect jury instruction, we look not to
                the erroneous instruction in isolation, but in the context of all
                relevant information given to the jury, including closing
                argument, and other instructions. There is no resulting due
                process violation where all such information, considered as a
                whole, does not mislead the jury as to a correct understanding of
                the law.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 13 of 25
       Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002) (citations omitted).


[19]   Here, although one sentence in final jury instruction 30 is potentially confusing,

       we conclude that all the information provided to the jury, considered as a

       whole, did not mislead the jury as to a correct understanding of the law. First,

       the trial court expressly informed the jury that “in considering any one

       instruction[,] you should construe it in connection with, and in light of, every

       other instruction given.” [Direct Appeal] Appellant’s App. at 199. Second,

       final jury instruction 31, the instruction that immediately followed final jury

       instruction 30, correctly explained the relevant law:


                Included in the charge in this case is the crime of voluntary
                manslaughter, which is defined by the law as follows: A person
                who knowingly or intentionally kills another human being while
                acting under sudden heat commits voluntary manslaughter, a
                Class B felony. The offense is a Class A felony if it is committed
                by means of a deadly weapon.


                Sudden heat is a mitigating factor that reduces what otherwise
                would be murder to voluntary manslaughter. The State has the
                burden of proving beyond a reasonable doubt that the defendant was not
                acting under sudden heat.


       Id. at 210 (emphasis added). And third, in the words of the post-conviction

       court, the deputy prosecutor “in his closing argument in Lay’s case, also

       explained that the State had to disprove sudden heat.” Appealed Order at 14.

       Whether counsel properly stated the law in closing argument can impact

       whether an instructional error is harmless. Rosales v. State, 23 N.E.3d 8, 16 (Ind.

       2015).
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 14 of 25
[20]   In light of all of the information provided to the jury, we conclude that Lay was

       not denied fundamental due process. That, however, does not end our inquiry

       into whether Lay was prejudiced by trial counsel’s ineffective assistance. In

       Boesch, upon which we rely for the foregoing standard, the petitioner claimed

       that an erroneous jury instruction rose to the level of fundamental error. 778

       N.E.2d at 1279. The “fundamental error” rule is extremely narrow, and applies

       only when the error constitutes a blatant violation of basic principles, the harm

       or potential for harm is substantial, and the resulting error denies the defendant

       fundamental due process. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002).

       But, we have explained that although the standards for fundamental error and

       prejudice for ineffective assistance of trial counsel “may frequently lead to the

       same result, the analyses are different” and present “two substantively different

       questions.” Benefield, 945 N.E.2d at 803, 805. Thus, we must consider whether

       counsel’s failure to object to final jury instructions 30 and 31 prejudiced Lay—

       rather than simply deeming the error insufficient to constitute fundamental

       error.


[21]   On appeal, Lay relies upon Roberson v. State, where we found ineffective

       assistance of trial counsel, for the proposition that the erroneous jury instruction

       rendered trial counsel’s performance deficient and that he suffered resulting

       prejudice. 982 N.E.2d 452 (Ind. Ct. App. 2013). In Roberson, the petitioner

       argued:


                the murder and voluntary manslaughter instructions were
                erroneous both because they effectively precluded the jury from

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 15 of 25
               considering whether [the petitioner] committed voluntary
               manslaughter if the State proved the basic elements of murder,
               i.e. knowingly killing [the victim], and because they erroneously
               placed the burden on the State of proving the existence of sudden
               heat beyond a reasonable doubt.


       Id. at 455-56. We, as did the post-conviction court, find Roberson easily

       distinguishable.


[22]   First, the jury in Roberson was twice incorrectly informed by the trial court’s jury

       instructions that sudden heat was an element of voluntary manslaughter and

       that the State bore the burden of proving the existence of sudden heat. Id. at

       459. Here, the jury was correctly informed that sudden heat was a mitigating

       factor that reduces what otherwise would be murder to voluntary manslaughter

       and that the State bore the burden of disproving its existence. [Direct Appeal]

       Appellant’s App. at 210. Second, the trial court in Roberson instructed the jury,

       “If the State proves the Defendant guilty of Murder, you must not consider the

       included crimes[,]” 982 N.E.2d at 458, rather than the “need not consider”

       language present here. [Direct Appeal] Appellant’s App. at 209. Although at

       first glance this appears to make no meaningful difference, the former expressly

       prohibits the jury from proceeding to consider voluntary manslaughter, having

       already been incorrectly informed regarding sudden heat and its relation to a

       murder conviction. Here, because the jury was correctly instructed, we share

       no such dilemma. And thirdly, in Roberson, “neither party explained the proper

       burden of proof to the jury during their closing arguments.” Roberson, 982



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 16 of 25
       N.E.2d at 461. Whereas here, as discussed above, the deputy prosecutor

       “explained that the State had to disprove sudden heat.” Appealed Order at 14.


[23]   Lay’s reliance on McWhorter v. State, 970 N.E.2d 770 (Ind. Ct. App. 2012),

       trans. granted, summarily aff’d in relevant part, 993 N.E.2d 1141 (Ind. 2013), is

       likewise misplaced. In McWhorter, the defendant claimed that his trial counsel

       was ineffective for failing to object to the trial court’s instruction on voluntary

       manslaughter, which informed the jury that if the State failed to prove the

       elements of murder, it must find the defendant not guilty of murder. Id. at 777.

       Immediately after this, however, it stated, “[y]ou may then consider any included

       crime[,]” and set forth the elements of voluntary manslaughter. Id. We

       determined:


               A finding that less than all the elements of Murder were proven
               is, in these circumstances, necessarily a finding that the requisite
               intent was not established. We find that the instruction to
               proceed to consider Voluntary Manslaughter only upon a failure
               of proof of Murder invites inconsistency and renders the result of
               the trial unreliable.


       Id. at 778. We, therefore, held that trial counsel’s failure to object to this

       improper instruction was deficient performance. Id. We concluded that

       McWhorter was prejudiced because he was convicted of voluntary

       manslaughter, which, according to the jury instructions, could only be proved

       on a failure to find all the elements of murder, yet a conviction for voluntary

       manslaughter requires proof of all the elements of murder. Id.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 17 of 25
[24]   Here however, unlike in McWhorter, the jury was properly instructed (though in

       an inartful manner) that if the State failed to prove that Lay knowingly or

       intentionally killed Mary, it was to find him not guilty of murder, but that if the

       State did prove that he knowingly or intentionally killed Mary while acting in

       sudden heat (which the State had the burden to disprove), it should find him

       guilty of voluntary manslaughter.


[25]   Considering the totality of the final jury instructions, and trial counsel’s closing

       argument, we cannot say that Lay showed a reasonable probability that, but for

       trial counsel’s errors, the result of his trial would have been different. Garrett,

       992 N.E.2d at 719. “Generally, errors in the giving or refusing of instructions

       are harmless where a conviction is clearly sustained by the evidence and the

       jury could not properly have found otherwise.” Matheny v. State, 983 N.E.2d

       672, 681 (Ind. Ct. App. 2013) (quotation omitted), trans. denied. We therefore

       conclude the post-conviction court did not err in finding trial counsel was not

       ineffective with respect to the jury instructions.


                                     2. Failure to Request Instruction

[26]   Next, Lay claims his trial counsel was ineffective for failing to request that the

       jury be instructed with regard to the lesser-included offense of voluntary

       manslaughter for the killing of Kelly Jinks. Lay argues, “It makes no rationale

       [sic] sense to not request a voluntary manslaughter instruction for Kelly once

       counsel obtained one for Mary because the [sic] whatever intent the jury

       ascribed to Mary, it would then transfer to Kelly by the State’s own argument.”

       Br. of Petitioner-Appellant at 23. According to Lay, “[b]y not requesting the
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 18 of 25
       voluntary manslaughter instruction for Kelly, if the jury were to conclude Lay

       knowingly killed Mary but acted in sudden heat, it would convict him of

       voluntary manslaughter for Mary but then be forced to convict him of murder

       for Kelly which is not rationale [sic].” Id.


[27]   While our Supreme Court has previously held that voluntary manslaughter is a

       lesser included offense to murder, it has also determined that “a tactical

       decision not to tender a lesser included offense does not constitute ineffective

       assistance of counsel, even where the lesser included offense is inherently

       included in the greater offense.” Autrey v. State, 700 N.E.2d 1140, 1141 (Ind.

       1998). Here, Lay’s counsel made the decision to withdraw a tendered

       instruction on involuntary manslaughter for the killing of Kelly and proceed

       with an instruction on reckless homicide in order “to keep it clean.” [Trial] Tr.,

       Vol. II at 303. She also, presumably, made the decision to not tender an

       instruction on voluntary manslaughter, which, arguably, could have

       undermined the reckless homicide theory of defense. See Sarwacinski v.

       State, 564 N.E.2d 950, 951 (Ind. Ct. App. 1991) (finding no ineffectiveness

       where counsel pursued a self-defense strategy and did not tender an instruction

       on voluntary manslaughter which “would have weakened the self-defense case

       and diminished appellant’s chances of acquittal”). We cannot say that trial

       counsel’s decision not to seek an instruction on voluntary manslaughter

       warranted post-conviction relief.


[28]   Furthermore, the evidence before the post-conviction court was that this

       decision was strategic. The post-conviction court noted that “the focus of [trial

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 19 of 25
       counsel’s] defense regarding Kelly Jinks was recklessness” and then quoted the

       following portion of trial counsel’s closing argument:


                     Kelly’s a no-brainer. They did not put on evidence that he
               knowingly killed Kelly. Nobody, not one of the three people that
               were out there can tell you where she was when she got shot.


                      You’ll be given an instruction on reckless homicide. You
               cannot find him guilty, based on the evidence, not guessing and
               speculation -- and I’ll go over what the instructions are. And
               you’ll hear what reckless homicide is. Did what he do [sic] was
               reckless and it caused her death? If that’s what you think
               happened, find him guilty of reckless homicide.


       Appealed Order at 16; [Trial] Tr., Vol. II at 359. We will not second-guess

       counsel’s strategy “through the distortions of hindsight.” Autrey, 700 N.E.2d at

       1141.


[29]   Moreover, at the post-conviction hearing, Lay did not ask trial counsel why she

       did not tender a voluntary manslaughter instruction. Absent evidence in

       support of a petitioner’s claim of ineffective assistance of counsel, a court

       can infer that counsel would not corroborate the allegations. See Dickson v.

       State, 533 N.E.2d 586, 589 (Ind. 1989).


[30]   Lay has failed to establish that a different outcome was reasonably likely if the

       jury instruction had been given. Thus, it follows that the post-conviction court

       properly found that Lay failed to prove that he was denied the effective

       assistance of trial counsel with respect to failure to request that the jury be

       instructed on voluntary manslaughter for the killing of Kelly.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 20 of 25
                                          3. Failure to Call Witness

[31]   Next, Lay claims his trial counsel was ineffective for failing to obtain an expert

       witness to challenge the testimony of the State’s pathologist that the wound to

       the back of Mary’s head was an entrance wound and not an exit wound. Lay

       argues that his “alternative narratives” of self-defense and sudden heat “were all

       severely compromised . . . in the face of the pathologist’s incorrect but

       unchallenged testimony[,]” and that there is a reasonable probability that the

       jury would have reached a different result “[h]ad the jury been able to hear an

       expert explain why Mary’s wound in the back of her head had to have been the

       exit wound while the wound in front, just above the eyebrow, must have been

       the entrance wound[.]” Br. of Petitioner-Appellant at 25.


[32]   “A decision regarding what witnesses to call is a matter of trial strategy which

       an appellate court will not second-guess, although a failure to call a useful

       witness can constitute deficient performance.” Brown v. State, 691 N.E.2d 438,

       447 (Ind. 1998) (citation omitted). Choosing which witnesses to call “is the

       epitome of a strategic decision.” Wisehart v. State, 693 N.E.2d 23, 48 n.26 (Ind.

       1998), cert. denied, 526 U.S. 1040 (1999). And we will not find counsel

       ineffective for failure to call a particular witness absent a clear showing of

       prejudice. Ben-Yisrayl v. State, 729 N.E.2d 102, 108 (Ind. 2000), cert. denied, 534

       U.S. 830 (2001).


[33]   When an ineffective assistance of counsel claim alleges the failure to present

       witnesses, the petitioner must offer evidence as to who the witnesses were and

       what their testimony would have been. Lee v. State, 694 N.E.2d 719, 722 (Ind.
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 21 of 25
       1998), cert. denied, 525 U.S. 1023 (1998). At trial, Dr. Obenson, a forensic

       pathologist who testified for the State, testified that the wound in the back of

       Mary’s head was the entrance wound. At the post-conviction hearing, Lay

       presented the testimony of Dr. George Nichols, a forensic pathologist, who

       testified that certain language in the autopsy report, specifically, “[e]xternal

       beveling,” indicated that the wound in question was an exit wound, not an

       entrance wound. [Post-Conviction] Transcript, Volume 2 at 41. On cross-

       examination, however, he explained that, in preparing to testify, he had

       “reviewed the autopsy report and two color photographs showing only the

       external injuries that were described in the autopsy report[,]” and that he

       “gladly would have examined [any additional photographs] to see what the

       boney wound actually looked like rather than what it was described[.]” Id. at

       44. He further testified that his opinion regarding the wound path would

       change if the word “external” in the autopsy report was determined to be a

       typographical error that should have read “internal.” Id. at 45.


[34]   Trial counsel testified at the post-conviction hearing that Lay had told her that

       he did not shoot Mary in the back of the head. Counsel further testified that “it

       would have been helpful” to challenge the location of the entry wound and that

       her failure to do so was not a strategic decision. Id. at 15. However, on cross-

       examination, she also testified that she “did not have any reason at the time to

       doubt what [Dr. Obenson] had said” other than the counter-narrative that Lay

       provided. Id. at 18.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 22 of 25
[35]   The post-conviction court concluded that trial counsel’s performance was

       “reasonable and not deficient[,]” that testimony regarding the wound path did

       not invalidate Lay’s claim of self-defense, that trial counsel’s cross-examination

       of Dr. Obenson “downplayed the significance of his description of the wound

       path,” and that Lay failed to show “a reasonable probability of a more

       favorable outcome at trial had counsel presented an independent pathologist to

       testify.” Appealed Order at 16-18. Our review of the record does not lead us to

       an opposite conclusion. See Badelle v. State, 754 N.E.2d 510, 539 (Ind. Ct. App.

       2001) (deciding in relevant part that, when trial counsel’s efforts were “more

       than adequate” to support a chosen defense, counsel’s decision not to seek out

       additional witnesses was a judgment call within the wide range of reasonable

       assistance), trans. denied. The post-conviction court did not err in denying Lay’s

       claim of ineffective assistance of trial counsel for failure to call an expert

       witness.


                                        C. Appellate Counsel
[36]   Finally, Lay alleges that he was denied effective assistance of appellate counsel

       because counsel failed to argue that final jury instructions 30 and 31 were

       fundamental error on direct appeal. Because of our resolution of Lay’s claims

       involving trial counsel, however, we easily dispense with this claim and

       conclude that Lay has failed to demonstrate prejudice.


[37]   In Benefield, we explained:




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 23 of 25
               As with trial counsel, to establish that appellate counsel rendered
               ineffective assistance, a petitioner must show appellate counsel
               was deficient in performance and that the deficiency resulted in
               prejudice. Ritchie v. State, 875 N.E.2d 706, 723 (Ind. 2007).
               However, appellate and trial counsel have different tasks, which
               result in different kinds of deficient performance and prejudice.
               Thus, when the alleged error is that appellate counsel failed to
               raise issues, prejudice is based on “whether the issues appellate
               counsel failed to raise would have been clearly more likely to
               result in reversal or an order for a new trial.” Id. at 724.
               Accordingly, there is no prejudice created by appellate counsel’s
               failure to raise an unpreserved issue that does not result in
               fundamental error because the issue would not have been clearly
               more likely to result in reversal or an order for a new trial. Put
               another way, if an unpreserved error is found not to be
               fundamental, then appellate counsel cannot be ineffective for
               failing to raise it.


       945 N.E.2d at 802-03.


[38]   Above, in the context of Lay’s claim of ineffective assistance of trial counsel for

       failing to object to final jury instructions 30 and 31, we concluded that Lay

       failed to establish prejudice. As we held in Benefield,


               the bar establishing fundamental error is higher than that for
               prejudice of ineffective assistance of trial counsel. Therefore,
               where an appellant has failed to prove ineffective assistance of
               trial counsel, our holding would exclude a finding of
               fundamental error.


       Id. at 805. Accordingly, because Lay failed to prove ineffective assistance of

       trial counsel with respect to final jury instructions 30 and 31, he has failed to

       show fundamental error, and in turn, has failed to demonstrate prejudice

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 24 of 25
       resulting from appellate counsel’s alleged deficient performance in failing to

       raise the issue.



                                               Conclusion
[39]   Lay failed to demonstrate both ineffective assistance of trial and appellate

       counsel. Therefore, we conclude that the post-conviction court did not err

       when it denied Lay’s petition for post-conviction relief.


[40]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1598 | April 18, 2019   Page 25 of 25
