MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Jun 14 2018, 7:30 am
regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana

Mario Joven                                              J.T. Whitehead
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Henry Shorter,                                           June 14, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A03-1712-PC-2883
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         20D03-1602-PC-8



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1712-PC-2883 | June 14, 2018            Page 1 of 11
                                       Statement of the Case
[1]   Henry Shorter appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Shorter raises a single issue for our review, which we restate

      as whether the post-conviction court’s judgment that Shorter did not receive

      ineffective assistance of trial counsel is clearly erroneous. We affirm.


                                 Facts and Procedural History
[2]   The facts underlying Shorter’s convictions for burglary, as a Class A felony;

      robbery, as a Class B felony; and for being a habitual offender were stated by

      this Court in his direct appeal:


              On January 8, 2013, Shorter and his fourteen-year-old stepson,
              L.S., went to the home of Ricky Beaver (“Beaver”). Also at the
              home was Raymond Cross (“Cross”). Shorter told Beaver and
              Cross that he had a “lick” for them, which meant to rob
              someone. When Cross asked where the robbery would occur,
              Shorter stated that the potential robbery victim was an illicit drug
              dealer who had money, drugs, and a safe, but who did not carry
              a firearm. Shorter was referring to Willie Warren (“Warren”),
              who[m] he referred to as “Woodchuck.” Cross and Beaver
              agreed to rob Warren, and Beaver already knew where Warren
              lived.


              Shorter drove L.S., Beaver, and Cross in a Jeep owned by one of
              their acquaintances to the apartment complex where Warren
              lived. In the vehicle, the four discussed their plan for the
              robbery. Each participant had a ski mask, except for Shorter.
              When they arrived at the apartment complex, Shorter parked the
              Jeep near Warren’s apartment. Cross, Beaver, and L.S. put on
              their masks and got out of the vehicle and went to Warren’s
              apartment. Shorter remained in the Jeep.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1712-PC-2883 | June 14, 2018   Page 2 of 11
        Cross knocked on the door of Warren’s apartment, and a woman
        opened the door. Beaver then pulled out a handgun, pushed the
        door open, and ordered the woman to lie face down on the
        couch. Beaver went into Warren’s bedroom, where Warren was
        with another woman. Beaver started to rummage around the
        room while Cross and L.S. remained near the front door. Beaver
        struck Warren in the head with the gun while asking him “where
        the stuff was at.” Beaver eventually left the bedroom, telling his
        companions that he couldn’t find any of the drugs, money, or the
        safe mentioned by Shorter. After a search of the kitchen revealed
        nothing, Cross told Beaver that they should leave.


        In the meantime, a young boy came running out of a back
        bedroom to be with the woman lying on the couch. At some
        point, this woman telephoned the police. When Cross told
        Beaver again that they should leave, Beaver grabbed a laptop
        computer, and the men ran back to the Jeep and fled the scene at
        a high rate of speed. Cross asked Shorter and Beaver why there
        had been no drugs in the apartment, and Shorter responded,
        “they must have just picked stuff up.” Before the four men could
        return to Beaver’s house, however, they were stopped by the
        police, who had been dispatched to the scene of the robbery and
        were looking for the vehicle used by the robbers. The police
        arrested Shorter, T.S., Cross, and Beaver, and found in the Jeep
        the stolen laptop computer, the ski masks used by the robbers,
        and the handgun used by Beaver, which was a BB gun, not a
        firearm.


        On January 15, 2013, the State charged Shorter with Class B
        felony robbery while armed with a deadly weapon. The State
        later added a charge of Class A felony burglary. Following a jury
        trial held on August 4-6, 2014, the jury found Shorter guilty as
        charged. Shorter then admitted to being an habitual offender.




Court of Appeals of Indiana | Memorandum Decision 20A03-1712-PC-2883 | June 14, 2018   Page 3 of 11
      Shorter v. State, No. 20A05-1409-CR-438, 2015 WL 2170370, at *1-2 (Ind. Ct.

      App. May 7, 2015) (citations to the record omitted).


[3]   On direct appeal, Shorter argued only that his sixty-year aggregate sentence was

      inappropriate in light of the nature of the offenses and his character. We

      affirmed his sentence. However, we remanded with instructions for the trial

      court to correctly attach the habitual offender enhancement to Shorter’s robbery

      conviction.


[4]   Thereafter, Shorter filed his amended petition for post-conviction relief. In that

      petition, Shorter alleged that his trial counsel, Christopher Crawford, had

      rendered ineffective assistance when he had failed to adequately cross-examine

      Cross during Shorter’s jury trial. In particular, Shorter alleged that Crawford

      had failed to impeach Cross at the jury trial with a pretrial affidavit Cross had

      prepared in which Cross had stated that neither he nor Shorter knew of Beaver’s

      plan to commit burglary and robbery on the night of the offenses.


[5]   Following an evidentiary hearing at which Crawford and Cross both testified,

      the post-conviction court rejected Shorter’s argument. In particular, the court

      found and concluded as follows:


              15.     . . . Crawford . . . testified that his particular defense was
              lack of mens rea—that [Shorter] had no knowledge of any
              criminal plan and was merely the driver of the vehicle.
              Specifically, Crawford explained in detail the trial defense
              strategy he used: 1) that [Shorter] never entered the apartment in
              which the occupants were robbed; 2) that there were serious
              issues with the State’s witnesses’ identification of the suspects;

      Court of Appeals of Indiana | Memorandum Decision 20A03-1712-PC-2883 | June 14, 2018   Page 4 of 11
        and 3) that [Shorter] did not knowingly participate in the crime
        because he allegedly had no knowledge that a robbery was to
        occur in the apartment as [Shorter] was merely the driver of the
        vehicle, and [Shorter] stayed in the vehicle the entire time the
        robbery occurred.


                                                ***


        17. [Shorter] also alleges that Crawford was ineffective
        because he inadequately cross[-]examined co-defendant
        Raymond Cross. At the post[-]conviction hearing, Crawford
        testified that he did, in fact, cross[-]examine Raymond Cross by
        asking him about his prior criminal record, including
        impeachable crimes of dishonesty, about Ricky Beaver’s
        involvement in the robbery, and questioning him in such a way
        that might lead the jury to conclude that the crime was
        committed only by Raymond Cross and Ricky Beaver, not
        [Shorter].


        18. Additionally, while the Court considered the exhibits
        admitted by [Shorter] at the post[-]conviction hearing in support
        of [Shorter’s] contention that Crawford omitted relevant defense
        documents . . . , in light of the totality of the evidence, the Court
        finds this argument is without merit. During cross[-]examination
        at the post[-]conviction hearing, Raymond Cross acknowledged
        that[,] from the moment he was first interviewed by Elkhart
        Police Department detectives, through the jury trial, he had
        presented multiple[,] different versions of how the robbery
        allegedly happened. Raymond Cross admitted that he was
        interviewed by Detective Carl Conway on two separate
        occasions, and that his story regarding [Shorter’s] involvement in
        the robbery changed between interviews. Raymond Cross
        admitted that his statements in the . . . Affidavit contradicted the
        sworn statements he had given Detective Conway and his own
        jury trial testimony. In sum, the veracity of Raymond Cross’
        testimony at the post[-]conviction hearing that [Shorter] was not
Court of Appeals of Indiana | Memorandum Decision 20A03-1712-PC-2883 | June 14, 2018   Page 5 of 11
        involved in the robbery is clearly diminished by the testimony
        that he had given [that described] at least three different versions
        of the events. It is not reasonable that the Court would consider
        only the story told during the post[-]conviction hearing as true.


        19. The Court’s conclusion is bolstered by the fact that the
        State introduced a copy of an incident report written by a
        corrections officer at the Elkhart County Correctional Facility
        demonstrating that[,] on January 13, 2014, Raymond Cross was
        found to have committed the institutional infraction of
        “trafficking” because he was caught attempting to provide the
        subject Affidavit to another inmate in order to get the same
        delivered to a notary, when he had already had the opportunity
        to have the document notarized. This does not make sense to the
        Court and further brings the credibility of the testimony of
        Raymond Cross into question.


        20. Finally, during the post[-]conviction hearing, attorney
        Crawford testified that he was very deliberate in what cross[-
        ]examination questions he asked Raymond Cross because he was
        unsure what his answers would be. Crawford stated that he did
        not want to completely discredit Raymond Cross’ jury trial
        testimony because some statements were favorable to [Shorter],
        but a more thorough cross[-]examination might have “clouded
        things more” and may have done more harm than good.
        Essentially, Crawford used his professional judgment in choosing
        how to handle cross[-]examination of Raymond Cross. For all
        these reasons, the Court cannot find that attorney Crawford was
        in any way ineffective for choosing not to rely on or utilize
        questionable documents in his defense of [Shorter], or in his
        cross[-]examination of Raymond Cross at trial.


Appellant’s App. Vol. 2 at 86-89. The court then denied Shorter’s petition for

post-conviction relief, and this appeal ensued.


Court of Appeals of Indiana | Memorandum Decision 20A03-1712-PC-2883 | June 14, 2018   Page 6 of 11
                                     Discussion and Decision
[6]   Shorter appeals the post-conviction court’s denial of his petition for post-

      conviction relief. As our Supreme Court has stated:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
              “When appealing the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. at 274. In order to prevail on an appeal from the
              denial of post-conviction relief, a petitioner must show that the
              evidence leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case entered findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[a] post-conviction court’s findings
              and judgment will be reversed only upon a showing of clear
              error—that which leaves us with a definite and firm conviction
              that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (internal quotation omitted).


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


[7]   In particular, Shorter asserts that he was denied the effective assistance of trial

      counsel.


              When evaluating an ineffective assistance of counsel claim, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
              State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
              prong, “the defendant must show deficient performance:

      Court of Appeals of Indiana | Memorandum Decision 20A03-1712-PC-2883 | June 14, 2018   Page 7 of 11
              representation that fell below an objective standard of
              reasonableness, committing errors so serious that the defendant
              did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
              McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
              Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
              second prong, “the defendant must show prejudice: a reasonable
              probability (i.e. a probability sufficient to undermine confidence
              in the outcome) that, but for counsel’s errors, the result of the
              proceeding would have been different.” Id. (citing Strickland, 466
              U.S. at 694, 104 S. Ct. 2052).


      Id. at 682.


[8]   Shorter argues that Crawford rendered ineffective assistance when he did not

      impeach Cross using Cross’ pretrial affidavit, in which Cross had stated that

      neither he nor Shorter knew of Beaver’s plan to commit burglary and robbery

      the night of the offenses. According to Shorter, no reasonable counsel would

      have refused to impeach Cross using the affidavit because Cross’ trial testimony

      that the burglary and robbery were Shorter’s initial ideas was the only evidence

      that demonstrated Shorter’s knowledge of the offenses. As such, Shorter

      continues, Crawford should have taken all measures to discredit Cross, and

      Crawford’s failure to do so resulted in a trial outcome that would not have

      occurred otherwise. We cannot agree.


[9]   Crawford made a reasonable strategic decision to not use Cross’ affidavit.

      “[T]actical or strategic decisions will not support a claim of ineffective

      assistance,” and “we afford great deference to trial counsel’s discretion to

      choose strategy and tactics.” Id. at 684 (quotation marks omitted). Here, there


      Court of Appeals of Indiana | Memorandum Decision 20A03-1712-PC-2883 | June 14, 2018   Page 8 of 11
       is no question that Cross lacked credibility. As the post-conviction court found,

       Cross gave multiple, different versions of the events. Crawford attacked Cross’

       credibility during Shorter’s jury trial, albeit through questions relating to Cross’

       prior convictions for crimes of dishonesty rather than through the use of the

       affidavit. During the post-conviction hearing, Crawford further testified that

       Cross’ recollection of the circumstances surrounding the offenses was “all over

       the place,” Tr. at 23, that Crawford “didn’t know what Mr. Cross was going to

       say” to the jury, id. at 12, and that Crawford was concerned that the use of the

       affidavit “would do more harm than good” and could “backfire” on Shorter, id.

       at 30, 33.


[10]   But Crawford also testified that Cross had some favorable trial testimony for

       Shorter. For example, during the trial Cross testified that he had no knowledge

       that Beaver had a BB gun on his person “until they’re walking up the steps.” Id.

       at 27-28. During that same time, Shorter was in the car, and Crawford argued

       to the jury that that testimony supported the defense theory that Shorter would

       have had “no knowledge” that the offenses were about to occur. Id. Thus,

       Crawford “wanted to use” some of Cross’ statements but also “didn’t want to

       use them at the same time because his credibility was certainly an issue.” Id. at

       28. In other words, Crawford strategically sought to “walk a line” with Cross

       during the cross-examination. Id. at 53-54.


[11]   The use of the affidavit would not have been consistent with Crawford’s

       strategy, and, indeed, the affidavit could have backfired on that strategy. Had

       Crawford attempted to use the affidavit, in which Cross had stated that Shorter

       Court of Appeals of Indiana | Memorandum Decision 20A03-1712-PC-2883 | June 14, 2018   Page 9 of 11
       had no knowledge of the offenses, to further emphasize Cross’ lack of

       credibility, the jury could well have concluded that Cross’ statements in the

       affidavit were false statements. As Crawford said during the post-conviction

       hearing, had the affidavit been before the jurors, “maybe they see this as simply

       another situation of Mr. Cross trying to help Mr. Shorter out,” or perhaps the

       affidavit “is . . . going to cloud things more and likely [make] them . . . think

       something wrong as it relates to Mr. Shorter or his knowledge.” Id. at 32, 34.

       Those readily available conclusions would have damaged Shorter’s defense and

       rendered Cross’ favorable trial testimony useless.


[12]   Further, the evidence produced at the post-conviction hearing demonstrated

       that the circumstances surrounding Cross’ creation of the affidavit were highly

       suspicious—he had been found in possession of the affidavit while incarcerated,

       contrary to the facility’s policies, and when discovered Cross stated that he had

       wanted to have the affidavit notarized, though he had already had the

       opportunity to notarize it. And Shorter and Cross were incarcerated in the

       same facility at the time. While Crawford testified at the post-conviction

       hearing that he did not think Shorter had knowledge of Cross’ affidavit during

       that time, he acknowledged that the circumstances surrounding the affidavit’s

       creation had a “what do you want me to say” appearance, and Crawford “knew

       there was no way I wanted to hear that coming back for the jury . . . .” Id. at

       35-36.


[13]   In sum, Shorter did not receive ineffective assistance from Crawford. Rather,

       Crawford used his professional judgment and employed a reasonable defense

       Court of Appeals of Indiana | Memorandum Decision 20A03-1712-PC-2883 | June 14, 2018   Page 10 of 11
       strategy when he chose to not use the affidavit in his cross-examination of

       Cross. Accordingly, we affirm the post-conviction court’s denial of Shorter’s

       petition for post-conviction relief.


[14]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1712-PC-2883 | June 14, 2018   Page 11 of 11
