                                                             FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                          Dec 26 2012, 9:38 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the                            CLERK
                                                                of the supreme court,
                                                                court of appeals and

case.                                                                  tax court




ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                GREGORY F. ZOELLER
Public Defender of Indiana                      Attorney General of Indiana

MARIO JOVEN                                     RYAN D. JOHANNINGSMEIER
Deputy Public Defender                          Deputy Attorney General
Indianapolis, Indiana                           Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

SHARIF FIELDS,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 49A04-1205-PC-249
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Kimberly J. Brown, Judge
                          Cause No. 49G16-0408-PC-146690



                                     December 26, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Sharif Fields appeals the post-conviction court’s denial of his petition for post-

conviction relief. Fields raises two issues which we revise and restate as:

       I.        Whether the post-conviction court erred in denying Fields’s petition
                 for relief based upon his argument that the State improperly
                 suppressed evidence; and

       II.       Whether Fields was denied the effective assistance of trial counsel.

We affirm.

       The relevant facts as discussed in Fields’s direct appeal follow:

              On August 4, 2004, Fields knocked on the door of the residence of
       his ex-wife, Tawanda James (“James”).1 When James opened the door,
       Fields pulled James out of the house by her hair. Fields then pulled James
       around the corner to the area where he had parked his car. James
       eventually talked Fields into allowing her to return to the house. Still
       pulling James by her hair, Fields took James into her bedroom and
       demanded that James have sex with him. James told Fields that her mother
       was returning to the house soon, and Fields left the house, only to return
       shortly thereafter. When he returned to James’ house, Fields pulled James
       to the ground and tried to remove her clothing. He then bit James on her
       arm hard enough to cause bleeding and bruising. Fields finally left after
       James promised she would call him.

Fields v. State, No. 49A04-0501-CR-16, slip op. at 2 (Ind. Ct. App. September 7, 2005)

(citations omitted).

       On August 13, 2004, the State charged Fields with criminal confinement as a class

D felony, domestic battery as a class A misdemeanor, battery as a class A misdemeanor,

and invasion of privacy as a class A misdemeanor. Id. at 2-3. On November 16, 2004,

the court held a bench trial, and James testified to the foregoing facts. Fields testified that

he was at work on August 4, 2004, and then went to a hotel with Kamika Garcia and


       1
           Both Fields and James had restraining orders against each other.

                                                     2
stayed at the hotel all night. Fields also testified that he had told James that he could not

“get in any kind of trouble” because he was on probation, and that he did not touch

James. Trial Transcript at 17. During closing argument, Fields’s counsel pointed out that

James had a conviction for forgery as a class C felony and a gun charge in her past and

that no pictures of the injury allegedly taken by the State were introduced at trial.

       Pursuant to Fields’s motion, the trial court dismissed the domestic battery and

invasion of privacy charges, but found Fields guilty of criminal confinement as a class D

felony and battery as a class A misdemeanor. Fields, slip op. at 3. The court sentenced

Fields to one-and-one-half years for the confinement conviction and to time served for

the battery conviction.    Id.   On direct appeal, Fields argued that the evidence was

insufficient to support his convictions and that his convictions for both confinement and

battery violated the Double Jeopardy Clause of the Indiana Constitution. This court

affirmed his convictions. Id. at 2, 4-6.

       On December 9, 2008, Fields filed a pro se petition for post-conviction relief

which alleged ineffective assistance of trial counsel, that there was evidence that was not

previously presented which required vacation of his convictions, and that the State failed

to preserve evidence that was useful or exculpatory. On August 20, 2010, Fields by

counsel filed an amendment to his petition for post-conviction relief.

       On October 19, 2010, the court held a hearing on the petition. At the beginning of

the hearing, the State asked for a clarification of Fields’s claims and whether he was

bringing allegations “under the new evidence rule.” Post-Conviction Transcript at 6.

Fields’s post-conviction counsel stated: “Judge, this is a Brady claim. The evidence isn’t

                                              3
new in any way. The evidence was available to the State, and the State didn’t disclose

it.” Id.

       Fields introduced four police reports which the court admitted. Specifically, a

police report dated July 11, 2004, indicated that the complainant, Kamika Garcia, had

been having an ongoing relationship with Fields and that Garcia had received a

threatening phone call from James on July 11, 2004.2 A second police report dated July

30, 2004, indicated that Garcia reported receiving harassing telephone calls from James.

A third police report dated August 5, 2004, indicated that the police were dispatched to a

disturbance that day, and the narrative of the report states in part:

       [James] stated that she tried to confide in her mother that her boyfriend,
       Sharif Fields, whom she has a protective order against, came over the night
       before with a gun, dragged her out of the house and chased her around the
       park. Miss James stated she would not call the police because Mr. Fields
       has a back-up of 30 years for crimes, which she did not specify. At which
       point Miss Taylor became upset with her daughter Miss James, yelling that
       she should call the police and a fight ensued. Mr. Taylor stated he was
       there and saw Miss Taylor and Miss James fighting with each other, pulling
       each other’s hair, biting each other, and pushing and shoving. Mr. Taylor
       states this is a regular occurrence that goes on almost weekly. . . . I was
       advised by Miss James who showed me what could have been a bite mark
       on her left arm, and stated her mother had done it. At which point I was
       going to arrest the mother, Elizabeth Taylor for battery with injury. Miss
       James stated “How can you prove that she did it?” I told Miss James I
       would take her word for it. Miss James said, “Well, you can’t because I’m
       not telling the truth.” At which point I was not sure what to believe what
       was going on. I stated to Miss James that I would make a report and that
       she could go down to the prosecutor’s office to seek a warrant for Mr.
       Fields for violating the protective order, if he did in fact come over the
       previous night, to which she started to recant her story and if she decided to
       press charges on her mother, Miss Taylor. I also advised her that her
       mother could press charges on her. Neither wanted to press charges on the
       other.


       2
           The report and the post-conviction transcript spell Tawanda’s name as Tajuanda.
                                                    4
Petitioner’s Exhibit 3.

       A fourth police report dated August 6, 2004, related to the incident on August 4,

2004, between James and Fields. The report indicated that James had alleged that Fields

stated that he would bite off her jaw and bite her left arm right at her underarm. The

report also stated: “Pictures were taken by the prosecutor’s office and [James] stated that

she is willing to prosecute.” Petitioner’s Exhibit 4. Affidavits from the officers that

made the reports indicated that they had no independent recollection of the events in the

reports.

       Fields introduced the testimony of Lashaunda McClain, the mother of Fields’s

son. McClain testified that James called her and stated: “[I]f you get involved, I will send

him back to jail.” Post-Conviction Transcript at 82.

       Scott Munroe, Fields’s former employer, described the relationship between Fields

and James as tense and described an incident in which Fields and James argued on

Munroe’s front lawn. The State objected, and the court stated “[i]nasmuch as your

questioning is an attempt to discredit or to prove motive by Ms. Fields for bringing the

charges that ultimately resulted in Mr. Fields’s conviction, the motion, the objection is

sustained.” Id. at 73-74. During an offer of proof, Munroe testified that James followed

him and Fields for a few miles and that Fields and Munroe called the police.

       Fields also introduced and the court admitted into evidence the charging

information against James alleging that she committed invasion of privacy as a class A

misdemeanor by entering Fields’s residence uninvited on May 21, 2004, and committed



                                             5
intimidation against Fields as a class D felony that same day by telling him: “I’m going to

kill you[;] I’m going to blow your head off.”3 Petitioner’s Exhibit 17.

        Fields’s trial counsel testified that he did not remember the case and that he looked

at the file in the public defender’s office and still did not remember the case. Fields’s

trial counsel also stated that generally he “[v]ery possibly” would have reviewed police

reports for the case and that he would have investigated the victim “[a]s much as

possible.” Post-Conviction Transcript at 55. When asked whether he would use the fact

that a victim in this type of case chased around the defendant and his employer and

cursed at them to challenge the victim’s credibility, trial counsel stated that he could not

say without knowing more but that it would merit investigation. When questioned about

a defendant facing twenty-four years in another court for a probation violation and

whether a victim’s threat to “put the defendant away if he ever left her by alleging

something like a criminal confinement against him” would affect her credibility, Fields’s

trial counsel answered: “I would have to know more.                           That’s a fairly specific

hypothetical.” Id. at 57. Fields’s trial counsel also indicated that he reviewed the file,

that he did not see any indication that Fields informed him about a possible alibi, and that




        3
          Fields argues that he “testified at trial that the case against James was dropped because he
refused to testify against her.” Appellant’s Brief at 17. The page cited by Fields reveals that he was
being questioned during cross-examination regarding phone records and stated:

        If they get . . . if they call up the records they will see that on her case her mom and them
        . . . because we had another case going on which that dropped because I tried not to
        testified [sic] against her, the, they took the . . . she . . . they changed their number. And
        when they changed their number she didn’t have . . . they didn’t have the same phone
        number because they said I was trying to call her.

Trial Transcript at 19.
                                                      6
it was his general practice to “certainly note” an alibi defense if there was a possibility of

such a defense. Id. at 59.

       On April 23, 2012, the court denied Fields’s petition for post-conviction relief in a

thirteen-page order. Specifically, the court concluded that Fields’s trial counsel could

have found the August 5th report by the exercise of reasonable diligence. The court also

rejected Fields’s claims of ineffective assistance of trial counsel.

       Before discussing Fields’s allegations of error, we note the general standard under

which we review a post-conviction court’s denial of a petition for post-conviction relief.

The petitioner in a post-conviction proceeding bears the burden of establishing grounds

for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.

2004); Ind. Post-Conviction Rule 1(5).         When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative

judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse the judgment

unless the evidence as a whole unerringly and unmistakably leads to a conclusion

opposite that reached by the post-conviction court. Id. Further, the post-conviction court

in this case entered findings of fact and conclusions thereon in accordance with Indiana

Post-Conviction Rule 1(6). Id. “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.” Id. In this review, we accept findings of

fact unless clearly erroneous, but we accord no deference to conclusions of law. Id. The

post-conviction court is the sole judge of the weight of the evidence and the credibility of

witnesses. Id.

                                              7
                                             I.

       The first issue is whether the post-conviction court erred in denying Fields’s

petition for relief based upon his argument that the State improperly suppressed evidence.

Fields argues that the availability of information is measured in terms of whether the

information was in the possession of some arm of the State and that police reports are the

work product of the prosecuting attorney. Fields also contends that the State could have

easily checked on its sole witness’s background to find this exculpatory and impeaching

material, which he would have used to impeach James.

       The State argues that Fields waived this claim because he did not raise a Brady

violation on direct appeal. The State points out that Fields emphasized at the post-

conviction hearing that his claim was a Brady claim and not a claim of newly discovered

evidence. The State contends that James’s testimony that she had reported the injuries

and the State had even taken pictures of the bite mark defeats any argument that the

evidence was demonstrably unavailable so as to prevent a Brady claim on direct appeal.

The State argues that the prosecution did not suppress the evidence because it was not in

the State’s possession in this case and points out that Fields cites to no authority that the

State must search all of its criminal cases for evidence favorable to one defendant. The

State also argues that the August 5th report was not favorable to Fields because it

revealed that James did not want to report Fields’s attack to police because she knew that

her report may cause him to be incarcerated for thirty years.

       In his reply brief, Fields argues that the State’s position that his argument is

waived is incorrect because he did not know about the August 5th police report until his

                                             8
post-conviction counsel discovered it, and he could not have raised the Brady violation

claim on direct appeal because there was no evidence in the record that supported such a

claim. Fields also contends that he is not arguing that the State must search all of its

criminal cases for favorable evidence particular to one defendant, but does argue that the

State should have investigated its sole complaining witness for impeaching or

exculpatory evidence. Fields also argues that James’s testimony was the only evidence

against Fields and that any evidence bearing on her credibility was critical to the outcome

of the bench trial.

       With respect to the police report, the post-conviction court found in part:

              The United States Supreme Court summarizes the three components
       of a Brady violation thusly: (1) the evidence at issue must be favorable to
       the accused, either because it is exculpatory or because it is impeaching; (2)
       the evidence must have been suppressed by the State, either willfully or
       inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527
       U.S. 263, 281-82, 119 S. Ct. 1936, 144 L.Ed.2d 286 (1999).

              [Fields] has offered no evidence that the State willfully suppressed
       the existence of the August 5 report. There is no indication that Officer
       Smith was aware of James’ contact with three other IPD officers the day
       before she spoke to James on August 6. Nor is there any indication that
       Deputy Prosecutor Georgeanna Orlich, representing the State at trial, knew
       of the report’s existence. The question now is whether the State
       inadvertently suppressed the report.

             [Fields], in his argument, cites to Prewitt v. State, 819 N.E.2d 393,
       (Ind. Ct. App. [2004]), [trans. denied,] which has this to say about
       “suppression”:

              Evidence cannot be regarded as “suppressed” and the State
              will not be found to have suppressed material information
              when the defendant has access to the evidence before trial by
              the exercise of reasonable diligence. Id., at 402 (internal
              citation omitted).


                                             9
              The August 5 police report was found by [Fields’s post-conviction]
       counsel through the exercise of reasonable diligence. The Court thus infers
       that trial counsel could also have found the report by the exercise of
       reasonable diligence. The Court now finds that the second prong of a
       Strickler test for a Brady violation has not been met, and there was no
       Brady violation regarding the report.

Appellant’s Appendix at 133-134.

       In Brady v. Maryland, the United States Supreme Court held that “the suppression

by the prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the good

faith of the prosecution.” 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-1197 (1963). “To

prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed

evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence

was material to an issue at trial.” Minnick v. State, 698 N.E.2d 745, 755 (Ind. 1998)

(citing Brady, 373 U.S. at 87, 83 S. Ct. 1194), reh’g denied, cert. denied, 528 U.S. 1006,

120 S. Ct. 501 (1999). A defendant must show that the State suppressed the evidence

either willfully or inadvertently and that prejudice ensued. Skinner v. Switzer, 131 S. Ct.

1289, 1300 (2011). The State will not be found to have suppressed material information

if that information was available to a defendant through the exercise of reasonable

diligence. Conner v. State, 711 N.E.2d 1238, 1246 (Ind. 1999), reh’g denied, cert.

denied, 531 U.S. 829, 121 S. Ct. 81 (2000).

       “Evidence is ‘material’ only if there is a ‘reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.’” Minnick, 698 N.E.2d at 755 (quoting United States v. Bagley, 473 U.S. 667,

685, 105 S. Ct. 3375, 3385 (1985)). A reasonable probability is a probability sufficient to
                                          10
undermine confidence in the outcome. Bagley, 473 U.S. at 682, 105 S. Ct. at 3383.

“Favorable evidence” includes both exculpatory evidence and impeachment evidence.

See Skinner, 131 S. Ct. at 1300; Prewitt v. State, 819 N.E.2d 393, 401 (Ind. Ct. App.

2004), trans. denied.

       Fields’s post-conviction counsel did not ask Fields’s trial counsel whether he had

discovered the August 5th police report prior to trial or whether he had a strategic reason

for not introducing the report. Further, the police report dated August 5, 2004, was a

public record and available to Fields and his trial counsel through the exercise of

reasonable diligence. See Ind. Code § 5-14-3-5(c) (2004) (subsequently amended by

Pub. L. No. 1-2012, § 1, eff. January 30, 2012).        Also, we cannot say that Fields

established that the evidence was favorable to the defense as it made reference to

allegations that Fields previously went to James’s house with a gun in violation of a

protective order, dragged her outside, and chased her around the park. Based upon our

review of the record, we cannot say that the evidence as a whole unerringly and

unmistakably leads to a conclusion opposite that reached by the post-conviction court.

See Stephenson v. State, 864 N.E.2d 1022, 1057 (Ind. 2007) (rejecting the petitioner’s

Brady claim and holding that the petitioner made no showing that the tape was not

available to the defense in the exercise of reasonable diligence), reh’g denied, cert.

denied, 552 U.S. 1314, 128 S. Ct. 1871 (2008).

                                            II.

       The next issue is whether Fields was denied the effective assistance of trial

counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner must

                                            11
demonstrate both that his counsel’s performance was deficient and that the petitioner was

prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.

2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),

reh’g denied), reh’g denied, cert. denied, 534 U.S. 830, 122 S. Ct. 73 (2001). A counsel’s

performance is deficient if it falls below an objective standard of reasonableness based on

prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). To

meet the appropriate test for prejudice, the petitioner must show that there is a reasonable

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

would have been different. Id. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).

Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at 824.

Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry

alone. Id.

       When considering a claim of ineffective assistance of counsel, a “strong

presumption arises that counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Morgan v. State, 755

N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance is presumed effective, and a

defendant must offer strong and convincing evidence to overcome this presumption.”

Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). Evidence of isolated poor strategy,

inexperience, or bad tactics will not support a claim of ineffective assistance of counsel.

Clark v. State, 668 N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S.



                                            12
1171, 117 S. Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986).

       Fields argues that he received ineffective assistance of trial counsel because his

counsel failed to investigate and present impeaching and exculpatory evidence.

Specifically, Fields argues that his trial counsel did no investigation that would have led

to McClain, who would have testified that James threatened her by stating that if

McClain became involved that James would send Fields back to jail. Fields also argues

that his trial counsel did not investigate Fields’s alibi, did not question Fields’s employer,

and presented no evidence at trial.      Fields also contends that his trial counsel was

ineffective for failing to discover the August 5th police report related to the dispute

between James and her mother. Fields asserts that his trial counsel could have found the

charges against James and presented them at trial. Fields also contends that his trial

counsel should have investigated and presented Garcia’s testimony and used it to cross-

examine James and provide an alibi.

       With respect to McClain, the State argues that the decision regarding what

witnesses to call is a matter of trial strategy, there was no showing that Fields informed

his trial counsel of McClain’s statement, and Fields did not demonstrate prejudice. The

State argues that the August 5th police report “would have buttressed James’s report of

Fields’s attack and placed Fields in an even more negative light.” Appellee’s Brief at 11.

The State also contends that the report by Fields of a prior attack by James or the report




                                             13
by McClain would not properly have been admitted because it would have been

impermissible character evidence under Ind. Evidence Rule 405.4

       In his reply brief, Fields argues that the evidence that James was vindictive was

not offered to show her character under Ind. Evidence Rule 405, but was offered

specifically under Ind. Evidence Rule 404(b).5 Fields argues that James had a motive,

intent, and a plan to lie in order to send Fields back to jail if he left her.

       The post-conviction court found:

              In his Amended Petition, [Fields] alleges that [his trial counsel] did
       not discuss with [him], or use at trial, the August 5 police report concerning
       an altercation between James and her mother, or evidence of harassing
       behavior committed by James against other persons before the August 4
       battery.

              At the post-conviction relief hearings, [Fields] attempted to
       introduce into evidence several allegations of harassing conduct by James,

       4
           Ind. Evidence Rule 405 governs methods of proving character and provides:

       (a)       Reputation or Opinion. In all cases in which evidence of character or a trait of
                 character of a person is admissible, proof may be made by testimony as to
                 reputation or by testimony in the form of an opinion. On cross-examination,
                 inquiry is allowable into relevant specific instances of conduct. Upon reasonable
                 pre-trial notice by the accused of the intention to offer character evidence, the
                 prosecution in a criminal case shall provide the accused with any relevant
                 specific instances of conduct to be used in cross-examination.

       (b)       Specific Instances of Conduct. In cases in which character or a trait of character
                 of a person is an essential element of a charge, claim, or defense, proof may also
                 be made of specific instances of that person’s conduct.
       5
           Ind. Evidence Rule 404(b) provides:

       Other Crimes, Wrongs, or Acts. 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, provided
       that upon request by the accused, the prosecution in a criminal case shall provide
       reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on
       good cause shown, of the general nature of any such evidence it intends to introduce at
       trial.
                                                    14
almost all of which would have been inadmissible at trial under Indiana
Rule 608.[6]

                                          *****

      [Fields] argues that trial counsel should have introduced into
evidence copies of documents concerning [Fields’s] dissolution of marriage
from James, a copy of a no-contact order between James and a person
named Tawana Fields (who apparently has no connection with this case)
and testimony from [Fields’s] employer, Scott Monroe, who was not a
witness to the battery in this case, or a witness to the altercation between
James and her mother on August 5, or a witness to any admissible
statements made by James regarding this case. The Court finds that the
only evidence of prior conduct on the part of James that might have been
admissible at trial (under Rule 613)[7] was a single statement made by



6
    Ind. Evidence Rule 608 governs evidence of character and conduct of witnesses and provides:

(a)       Opinion and Reputation Evidence of Character. The credibility of a witness may
          be attacked or supported by evidence in the form of opinion or reputation, but
          subject to these limitations: (1) the evidence may refer only to character for
          truthfulness, and (2) evidence of truthful character is admissible only after the
          character of the witness for truthfulness has been attacked by opinion or
          reputation evidence or otherwise.

(b)       Specific Instances of the Conduct of a Witness. For the purpose of attacking or
          supporting the witness’s credibility, other than conviction of a crime as provided
          in Rule 609, specific instances may not be inquired into or proven by extrinsic
          evidence. They may, however, in the discretion of the court, if probative of
          truthfulness or untruthfulness, be inquired into on cross-examination of the
          witness concerning the character for truthfulness or untruthfulness of another
          witness as to which character the witness being cross-examined has testified.
7
    Ind. Evidence Rule 613 governs prior statements of witnesses and provides:

(a)       Examining Witness Concerning Prior Statement. In examining a witness
          concerning a prior statement made by the witness, whether written or not, the
          statement need not be shown nor its contents disclosed to the witness at that time,
          but on request the same shall be shown or disclosed to opposing counsel.

(b)       Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic
          evidence of a prior inconsistent statement by a witness is not admissible unless
          the witness is afforded an opportunity to explain or deny the same and the
          opposite party is afforded an opportunity to interrogate the witness thereon, or
          the interests of justice otherwise require. This provision does not apply to
          statements of a party-opponent as defined in Rule 801(d)(2).

                                             15
James to a woman named [] McClain, who, at the time of the battery, was
the mother of a child fathered by [Fields].

          a.      James’ statement to McClain

        At the March 15, 2011 post-conviction relief hearing, McClain
testified that James had said to her: “If you get involved, I will send
[Fields] back to jail.” Ms. McClain said she thought James made the
statement before James reported the August 4th battery, but McClain could
not say exactly when the statement was made.8

       It is not clear to the Court what James meant by the statement,
assuming that it was, in fact, made. It could be interpreted as meaning (1)
James would make a false accusation against [Fields] if McClain continued
her interference in James’ affairs, or (2) James was thinking of not
reporting something that actually did happen but she would change her
mind if McClain continued to interfere, or (3) it might have had nothing
whatsoever to do with the events of August 4.

      A portion of the August 5 police report appears to support the
second interpretation. In it, James tells the reporting officer:

          Her boyfriend, Sharif Fields, whom she has a protective order
          against, came over the night before with a gun, dragged her
          out of the house and chased her around the park. Miss James
          stated she would not call the police because Mr. Fields has
          a back-up of 30 years for crimes.
          Petitioner’s Exhibit 3 (boldface added)

         James did not testify at either of the post-conviction relief hearings
and so the Court has not had the opportunity of seeing and hearing her
response to McClain’s testimony. James would have been allowed to do so
at trial, and the Court cannot guess what her response would have been, or
what explanation she might have given for making the statement to
McClain, or even whether James would have admitted to making the
statement at all.

       [Fields] has not shown that he made his trial counsel . . . aware of
the statement made by James to McClain prior to trial. It appears that
McClain did not approach [trial counsel] prior to trial. The Court finds that


8
    McClain was not a witness to the battery.

                                                16
       [trial counsel] was not ineffective for his failure to call McClain to testify at
       trial.

                As to whether [Fields] was prejudiced by McClain’s absence from
       trial, the Court finds it is unable to determine that without first seeing and
       hearing James impeached with her statement.

Appellant’s Appendix at 137-140.

       With respect to the August 5th police report and Fields’s allegation of ineffective

assistance, the post-conviction court found:

              [Fields’s post-conviction counsel] found the August 5 police report
       concerning James and her mother through the exercise of reasonable
       diligence. It follows that [Fields’s trial counsel] could have done the same.
       The Court agrees that this was an admissible piece of impeachment
       evidence that might have been helpful to the defense. The question before
       the Court now is whether this isolated mistake rises to the level of
       ineffective assistance of counsel under a Strickland analysis.

              [Fields] did not call James to testify at either of the post-conviction
       relief hearings. The August 5 report implies that James blamed two
       different people for the bite mark on her arm, but at the same time confirms
       the commission of a crime committed against her by [Fields] the day
       before. While the report could have been used to impeach James’
       credibility, it does not, on its face, clearly and unambiguously exonerate
       [Fields].

              Because the Court cannot guess as to how James would have
       responded on the witness stand when the defense attempted to impeach her
       with the report, the Court is unable to conclude that the use of the report
       would have affected the outcome of the trial.

               The Court finds that [Fields] has not met his burden of proof
       regarding prejudice in the matter of the August 5 police report. The Court
       need not consider whether [Fields’s trial counsel’s] failure to find the report
       prior to trial made him ineffective in his representation under a Strickland-
       type review.

Id. at 140-141.



                                               17
       To the extent that Fields suggests that his trial counsel was ineffective for failing

to present evidence of the nature of the relationship between Fields and James, we

observe that such evidence was already before the trier of fact. James’s testimony at trial

revealed that Fields and James were divorced by August 4, 2004, and both had a

restraining order against the other person on that date. Fields’s trial counsel asked Fields

at trial about his “pretty rocky divorce,” and Fields testified that James was “just too

physical” and that he “had to call the police all the time.” Trial Transcript at 17. We also

observe that Fields’s trial counsel attacked James’s credibility by pointing out that she

had a conviction for forgery as a class C felony and a gun charge in her past.

       With respect to James’s previous allegation involving the bite, Fields’s post-

conviction counsel posed a hypothetical question to Fields’s trial counsel. Specifically,

the following exchange occurred during the direct examination of Fields’s trial counsel:

       Q      [I]f you were involved in a case where a victim was alleging that a
              defendant had bit her, but the day before had alleged that her mother
              had bit her, would that, would that – would you question the
              credibility using that information at all? If she had alleged the
              defendant had bit her, but the day before to a police in a police report
              she had alleged that actually her mother had bit her, would you use
              that fact to try to either impeach her or to show her bias, or show that
              she was incredible?

       A      If I had that information, yes I would.

Post-Conviction Transcript at 56. However, with respect to the August 5th police report,

we observe that Fields’s post-conviction counsel did not ask Fields’s trial counsel

whether he had reviewed the report or whether he had a strategic reason for not

introducing the report. The August 5th police report included certain statements which

may have been damaging to Fields’s defense. Specifically, the report indicated that
                                      18
James informed the police officer that she tried to confide in her mother that Fields came

over the night before with a gun in violation of a protective order, dragged her out of the

house, and chased her around the park. The report also indicated that James and her

mother fought over whether James should report Fields’s actions to the police.

       With respect to Fields’s argument that his trial counsel failed to investigate his

alibi, we observe that trial counsel indicated that it was his general practice to certainly

note an alibi defense if it appeared there was such a defense and that his review of the file

did not reveal any indication that Fields informed him about a possible alibi. The record

also reveals that Fields’s trial counsel raised the idea of an alibi defense when he

questioned Fields during direct examination at trial and Fields testified that he went to a

hotel with Garcia. During cross-examination, Fields testified that Garcia was not present

at trial and that she was afraid of James.

       Under the circumstances, we cannot say that the evidence as a whole unerringly

and unmistakably leads to a conclusion opposite that reached by the post-conviction

court. See Morlan v. State, 491 N.E.2d 1001, 1003 (Ind. 1986) (holding that while trial

counsel could have impeached the credibility of certain witnesses by exposing a long-

standing conflict between the petitioner and the complaining witness, such testimony also

would have established a possible motive for the shooting and concluding that trial

counsel’s strategy to not aggressively impeach the witnesses was not deficient).

       For the foregoing reasons, we affirm the post-conviction court’s denial of Fields’s

petition for post-conviction relief.

       Affirmed.

                                             19
BAILEY, J., and VAIDIK, J., concur.




                                      20
