FOR PUBLICATION
                                                         Apr 08 2013, 9:46 am




ATTORNEYS FOR APPELLANTS:                      ATTORNEYS FOR APPELLEE:

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

KATHLEEN CLEARY                                ANGELA N. SANCHEZ
JOHN PINNOW                                    Deputy Attorney General
Deputy Public Defenders                        Indianapolis, Indiana
Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

LORENZO REID and LARRY BLAKE,                  )
a/k/a LARRY REID,                              )
                                               )
       Appellants-Petitioners,                 )
                                               )
              vs.                              )      No. 89A01-1208-PC-377
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Respondent.                    )


                    APPEAL FROM THE WAYNE SUPERIOR COURT
                           The Honorable Gregory Horn, Judge
                    Cause Nos. 89D02-9112-CF-111, 89D02-9111-CF-88



                                     April 8, 2013

                              OPINION - FOR PUBLICATION


BRADFORD, Judge
       Appellants-Petitioners Lorenzo Reid and Larry Blake seek post-conviction relief from

their convictions and respective fifty-four and forty-four year sentences for murder and Class

C felony attempted robbery. On September 21, 1990, Reid, Blake, and an unidentified third

man were involved in an attempted robbery of a liquor store that resulted in the death of the

owner of the liquor store. Following separate jury trials, both Reid and Blake were convicted

of murder and Class C felony attempted robbery, and their convictions were affirmed on

direct appeal. Reid and Blake subsequently requested post-conviction relief, and the instant

appeal stems from the denial of these requests. Concluding that neither Reid nor Blake are

entitled to post-conviction relief, we affirm the judgment of the post-conviction court.

                       FACTS AND PROCEDURAL HISTORY

       At around 10:30 p.m. on September 21, 1990, Reid, Blake, and an unidentified male

entered a liquor store in Richmond and attempted to rob the owner. Reid v. State, 719 N.E.2d

451, 453 (Ind. Ct. App. 1999). “The owner exchanged gunfire with the three men and was

shot three times during the encounter.” Id. “He later died.” Id.

       In 1991, the State charged Reid and Blake (collectively, “Appellants”) with murder,

felony murder, and Class A felony attempted robbery. Appellants were separately tried

before juries in 1993, and each was convicted of murder and Class C felony attempted

robbery. Reid was sentenced to an aggregate term of fifty-four years, and Blake was

sentenced to an aggregate term of forty-four years. In 1994, Blake’s convictions were

affirmed on direct appeal in a memorandum decision. Blake v. State, 89A01-93-10-CR-341

(Ind. Ct. App. Nov. 22, 1994). On November 17, 1999, Reid’s convictions were affirmed on

                                              2
direct appeal. Reid, 719 N.E.2d at 459.

       Appellants separately filed pro se petitions for post-conviction relief (“PCR”) in 2000.

They filed a joint motion for post-conviction DNA testing in 2006, as well as a second joint

request in 2007. Both amended their PCR petitions in 2011. The post-conviction court

conducted a joint hearing on Appellants’ petitions on March 6 and 7, 2012. On August 16,

2012, the post-conviction court issued written findings and conclusions in an order denying

Appellants’ PCR petitions. This appeal follows.

                             DISCUSSION AND DECISION

       Post-conviction procedures do not afford the petitioners with a super-appeal. Williams

v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a narrow remedy for

subsequent collateral challenges to convictions, challenges which must be based on grounds

enumerated in the post-conviction rules. Id. “If an issue was known and available, but not

raised on direct appeal, it is waived.” Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001)

(citing Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999)). Petitioners who have been

denied PCR appeal from a negative judgment and, as a result, face a rigorous standard of

review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715

N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.

       Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745

(Ind. 2002). Therefore, in order to prevail, petitioners must establish their claims by a

preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745.

When appealing from the denial of a PCR petition, petitioners must convince this court that

                                              3
the evidence, taken as a whole, “leads unmistakably to a conclusion opposite that reached by

the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is

without conflict and leads to but one conclusion, and the post-conviction court has reached

the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v.

State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. The post-conviction court is

the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v.

State, 810 N.E.2d 674, 679 (Ind. 2004). We therefore accept the post-conviction court’s

findings of fact unless they are clearly erroneous but give no deference to its conclusions of

law. Id.

           I. Loss or Destruction of Certain Evidence Following Conviction

       Appellants contend that the post-conviction court erred in denying their request for

relief because the State violated their rights under the Due Process Clause by its post-

conviction loss or destruction of certain evidence. In making this contention, Appellants rely

on the decisions of the United States Supreme Court in Arizona v. Youngblood, 488 U.S. 51

(1988), and California v. Trombetta, 467 U.S. 479 (1984). Youngblood and Trombetta stand

for the proposition that a defendant’s due process rights are violated by the State’s failure to

preserve, or the destruction of, evidence prior to trial if the materially exculpatory value of

the evidence was apparent before the destruction or the evidence was potentially exculpatory

and was destroyed in bad faith. Youngblood, 488 U.S. at 57-59; Trombetta, 467 U.S. at 488-

89. However, the United States Supreme Court’s subsequent decision in District Attorney’s

Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009), indicates that an

                                               4
individual does not have a right under the Due Process Clause to access lost or destroyed

evidence during post-conviction proceedings.

       In Osborne, the defendant was convicted of kidnapping, assault, and sexual assault

and his convictions were affirmed on direct appeal. 557 U.S. at 58. The defendant

subsequently sought PCR. In his request for relief, the defendant requested certain post-

conviction DNA testing. Id. at 59. Eventually, the Supreme Court granted certiorari to

decide whether a defendant has a right under the Due Process Clause to obtain post-

conviction access to the State’s evidence for additional testing. Id. at 61. The Supreme

Court determined that the defendant did not have a right to obtain post-conviction access to

the State’s trial evidence for additional testing, holding that the Due Process Clause does not

require that certain recognized pre-trial rights be extended to protect a defendant’s post-

conviction liberty interests. Id. at 72-74. In making this holding, the Supreme Court

recognized that a criminal defendant proved guilty after a fair trial does not have the same

liberty interests as a free man and that a holding to the contrary would lead to a plethora of

questions relating to whether there is a constitutional obligation to preserve certain evidence

following trial for potential future testing, and, if so, for how long. Id. at 68, 74.

       Here, Appellants argue that their due process rights were violated as a result of the

post-conviction loss or destruction of certain DNA evidence. The evidence was available for

testing and was tested prior to trial. Appellants had access to the evidence as well as the test

results prior to trial, and the results of these tests, which excluded Appellants as potential

sources for the DNA, were admitted at trial. In light of the Supreme Court’s opinion in

                                               5
Osborne, we conclude that, like the defendant in Osborne, Appellants do not have a Due

Process right to obtain post-conviction access to the State’s evidence for additional testing.

See id. at 72-74.

       Furthermore, even if we were to assume that the State did have some obligation to

save certain evidence, Appellants’ claim still fails. Appellants claim that the destroyed

evidence was materially exculpatory rather than merely potentially useful evidence. We

disagree. It is undisputed that prior tests on the evidence in question indicated that the DNA

did not belong to either of the Appellants. Upon presenting the evidence at trial, the State

conceded that the DNA did not belong to either of the Appellants, but rather argued that it

likely belonged to their unknown accomplice. The triers-of-fact considered the fact that the

DNA excluded Appellants as possible sources, but, in light of the other evidence presented

by the State, found Appellants guilty of murder and attempted robbery.

       In seeking PCR, Appellants do not claim that additional testing on the evidence could

be any more exculpatory of their being potential sources of the DNA than the tests completed

prior to trial. Instead, Appellants assert their innocence and claim that their rights under the

Due Process Clause were violated by the loss or destruction of the evidence because they are

unable to use newly developed DNA testing technology to find the individual responsible for

the crimes. However, even assuming that additional testing could result in finding a match of

the DNA evidence obtained at the crime scene, such a discovery would only be potentially

useful as it would likely only identify Appellants’ unknown accomplice and would not, in

and of itself, prove that Appellants had not committed the crimes for which they were

                                               6
convicted. See generally Terry v. State, 857 N.E.2d 396, 408 (Ind. Ct. App. 2006) (providing

that the defendant did not have a right under the Due Process Clause to complete additional

tests on the evidence post-conviction because further tests on the evidence could have

established, at most, that neither defendant nor anyone connected to him owned the evidence,

and, while helpful to support the defense’s theory, would not exculpate the defendant), trans.

denied. In addition, Appellants did not show that the State acted in bad faith in losing or

destroying the evidence in question. Having concluded that the evidence in question was at

most potentially exculpatory and that Appellants failed to demonstrate that the evidence was

lost or destroyed in bad faith, we further conclude that Appellants would not be entitled to

relief under the Supreme Court’s holdings in Youngblood and Trombetta, even if they

controlled. Accordingly, Appellants’ claim relating to the loss or destruction of certain

evidence fails.1



        1
           Although not relied on by Appellants, we note that Indiana Code section 35-38-7 et seq. grants a
petitioner the opportunity to seek post-conviction testing of DNA evidence. Indiana Code section 35-38-7 et
seq., however, would not provide Appellants the right to conduct the requested DNA testing because they have
not presented prima facie proof of each of the statutory factors set forth in Indiana Code section 35-38-7-8.
Indiana Code section 35-38-7-8 requires the petitioner to present prima facie proof of the following:

        (1) That the evidence sought to be tested is material to identifying the petitioner as:
                 (A) the perpetrator of; or
                 (B) an accomplice to;
        the offense that resulted in the petitioner’s conviction.
        (2) That a sample of the evidence that the petitioner seeks to subject to DNA testing and
        analysis is in the possession or control of either:
                 (A) the state or a court; or
                 (B) another person, and, if this clause applies, that a sufficient chain of custody
        for the evidence exists to suggest that the evidence has not been substituted, tampered
        with, replaced, contaminated, or degraded in any material aspect.
        (3) The evidence sought to be tested:
                 (A) was not previously tested; or
                 (B) was tested, but the requested DNA testing and analysis will:
                                                      7
                                             II. Brady Claim

        Appellants also contend that they are entitled to a new trial because the State failed to

disclose before trial that one of its witnesses, Ronald Maiden, had a prior criminal conviction

for robbery. The State, for its part, argues that Appellants are not entitled to relief because

they have failed to demonstrate that Maiden had a prior robbery conviction. The State claims

that the record merely demonstrates that Maiden was incarcerated after being charged with

robbery, and is silent as to whether Maiden was ever convicted of the charged offense.

Alternatively, the State argues that Appellants were not prejudiced by the State’s alleged

failure to disclose information about Maiden’s prior criminal history.

                Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215
        (1963) held that “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 or bad faith of
        the prosecution.” Brady applies to evidence impeaching the credibility of
        State’s witnesses. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct.
        3375, 87 L.Ed.2d 481 (1985) (citing Giglio v. United States, 405 U.S. 150,
        154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). The United States Supreme Court

                 (i) provide results that are reasonably more discriminating and probative of the
        identity of the perpetrator or accomplice; or
                 (ii) have a reasonable probability of contradicting prior test results.
        (4) A reasonable probability exists that the petitioner would not have:
                 (A) been:
                 (i) prosecuted for; or
                 (ii) convicted of;
                 the offense; or
                 (B) received as severe a sentence for the offense;
        if exculpatory results had been obtained through the requested DNA testing and analysis.

Again, the DNA evidence at issue in the instant matter was previously tested and excluded Appellants as
potential sources for the DNA. Further, while Appellants argue that additional testing is necessary to prove the
identity of the perpetrator, such identification would not necessarily be exculpatory to the Appellants, but
rather would likely support the State’s theory that Appellants were aided in committing the underlying crimes
by an unknown accomplice. The fact-finders considered the fact that the Appellants were not possible sources
of the DNA evidence found at the crime scene but, in light of the other evidence presented at trial, found the
Appellants guilty of the charged offenses.
                                                       8
       has recently summarized three components of a Brady violation: (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).

Carroll v. State, 740 N.E.2d 1225, 1229 (Ind. Ct. App. 2000), trans. denied.

       Again, the State argues that Appellants are not entitled to the requested relief because

they have failed to demonstrate that Maiden was ever convicted of robbery. The evidence

before the post-conviction court included the testimony of a police detective who indicated

that he thought that Maiden might have been involved in a burglary or a robbery as a

juvenile, but that he could not be certain. The evidence also included an Indiana State Police

record that indicated that Maiden had been arrested by the Richmond Police Department for

armed robbery on February 6, 1969, and that Maiden was ordered to the State Reformatory at

Pendleton on July 8, 1969, on the charge of armed robbery. Nothing in the record indicates

whether Maiden was ordered to the State Reformatory pending trial or following a criminal

conviction. However, even assuming, without deciding, that the record is sufficient to

establish that Maiden did have a prior robbery conviction, we conclude that Appellants’

Brady claim fails because Appellants have failed to satisfy all three components set forth by

the Supreme Court in Strickler.

       As for the first Strickler component, the State does not dispute that the alleged

criminal conviction was an impeachable offense. Robbery was considered an impeachable

conviction at the time of Appellants’ criminal trials. Ashton v. Anderson, 258 Ind. 51, 63,


                                              9
279 N.E.2d 210, 217 (1972). As such, trial counsel for Appellants could have attempted to

impeach Maiden by questioning him about the robbery conviction, and the conviction would

fall within the ambit of Brady and its progeny. See generally Carroll, 740 N.E.2d at 1229

(providing that impeachable convictions fall within the ambit of Brady and its progeny).

       As for the second Strickler component, Appellants presented evidence before the post-

conviction court that the State knew, or could have known, about Maiden’s criminal history

but did not disclose the information to their trial counsel. “The availability of information is

not measured in terms of whether the information is easy or difficult to obtain but by whether

the information is in the possession of some arm of the state.” Id. (internal quotations

omitted). Here, because the State could have discovered information relating to Maiden’s

potential criminal history by completing a search of State Police records, we conclude that

Maiden’s record was at the State’s disposal and that the State failed to disclose it. As such,

the second Strickler component has been satisfied. See id.

       Having determined that the first two Strickler components have been satisfied, we

must determine “whether the nondisclosure was prejudicial to [Appellants], i.e., whether the

suppressed evidence was material.” Id.

       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. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. A “reasonable
       probability” is a probability sufficient to undermine confidence in the outcome.
       Id. In proving materiality, it is not necessary for the defendant to show that
       “after discounting the inculpatory evidence in light of the undisclosed
       evidence, there would not have been enough left to convict.” Kyles v. Whitley,
       514 U.S. 419, 434-35, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Rather, the
       defendant must show that the “favorable evidence could reasonably be taken to
       put the whole case in such a different light as to undermine confidence in the
                                                10
       verdict.” Id. at 435, 115 S.Ct. 1555 (footnote omitted).

Id. at 1229-30.

       In Carroll, we considered whether a six-year-old misdemeanor conviction for false

informing or reporting was material. Id. at 1230. Upon review, we concluded that in light of

all of the evidence presented at trial, the impeaching value of the six-year-old misdemeanor

conviction was negligible, at best. Id. In coming to this conclusion, we noted that the

testimony at trial and arguments by counsel did not portray the witness as a highly credible

witness or otherwise upstanding citizen. Id. In addition, the State presented additional

evidence of the defendant’s guilt and the witness in question’s testimony was cumulative of

this additional evidence. Id. In light of the independent evidence of guilt, combined with the

State’s presentation of the witness as a less-than-sterling witness, we concluded that the

State’s nondisclosure of the six-year-old misdemeanor conviction did not satisfy the

prejudice prong of Strickler. Id.

       Similarly, in the instant matter, we conclude that in light of all of the evidence

presented at trial, the impeaching value of the alleged robbery conviction is negligible, at

best. The record demonstrates that the victim provided a statement to responding police

officers before he died, in which he stated that he thought that the individuals who shot him

had been in the liquor store approximately an hour before the robbery and shooting and that

they had purchased a bottle of cognac. The victim told Maiden that he had sold a bottle of

cognac, and Maiden testified that after checking the liquor store’s inventory, he was able to

confirm that a bottle of cognac had been sold on the day in question. In addition to the

                                             11
victim’s and Maiden’s testimony, the testimony of two other witnesses placed Appellants at

or near the liquor store at the time of the robbery and shooting, and a broken gold bracelet

that was linked to one of the Appellants was found just outside the liquor store. Maiden’s

testimony corroborated the victim’s statement to police that he had sold a bottle of cognac to

the robbers earlier in the evening before the attempted robbery and shooting, and was merely

cumulative of the other evidence linking Appellants to the crime scene on the day in

question.

        Moreover, the alleged conviction at issue in the instant matter was a twenty-four-year-

old robbery conviction that appears to stem back to actions taken by Maiden as a teenager.

Generally, the importance given to the remoteness of or the lapse of time from the witness’s

prior conviction is a question for the trier of fact to determine as to the weight of the

evidence and credibility of the witness. See Robinson v. State, 446 N.E.2d 1287, 1292 (Ind.

1983).2 However, in light of the independent evidence of Appellants’ guilt, we cannot say

that there is a reasonable probability that the outcome of Appellants’ trials would have been


        2
            Indiana Rule of Evidence 609, which came into effect after the completion of Appellants’ criminal
trials seems to reach the same conclusion with regard to the admissibility and relevance of Maiden’s alleged
criminal conviction. With respect to the admissibility and relevance of a remote criminal conviction, Indiana
Rule of Evidence 609 provides as follows:
          (b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more
          than ten years has elapsed since the date of the conviction or, if the conviction resulted in
          confinement of the witness then the date of the release of the witness from the confinement
          unless the court determines, in the interests of justice, that the probative value of the
          conviction supported by specific facts and circumstances substantially outweighs its
          prejudicial effect. However, evidence of a conviction more than ten years old as calculated
          herein is not admissible unless the proponent gives to the adverse party sufficient advance
          written notice of intent to use such evidence to provide the adverse party with a fair
          opportunity to contest the use of such evidence.


                                                    12
different had counsel for Appellants attempted to impeach Maiden with questions about a

potential criminal act that occurred at least twenty-four years before Appellants committed

the underlying criminal actions. Moreover, nothing in the record indicates that Maiden

committed any other impeachable offense in the twenty-four intervening years, and we find it

unlikely that a jury would find Maiden’s testimony to be incredible merely because he may

have potentially committed a single criminal offense as a teenager.

       In sum, the independent evidence combined with the remoteness of Maiden’s potential

criminal conduct leads us to conclude that the State’s nondisclosure of a twenty-four-year-old

potential robbery conviction fails to establish the prejudice prong of Strickler. Accordingly,

Appellants’ Brady claim fails.

                        III. Ineffective Assistance of Trial Counsel

       Appellants also contend that they received ineffective assistance from their trial

counsel. Appellants claim that each of their respective trial counsel was ineffective for

failing to elicit expert testimony during trial regarding the bracelet found at the crime scene

and the DNA evidence. The right to effective counsel is rooted in the Sixth Amendment to

the United States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

Sixth Amendment recognizes the right to the assistance of counsel because it envisions

counsel’s playing a role that is critical to the ability of the adversarial system to produce just

results.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)). “The

benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

undermined the proper function of the adversarial process that the trial court cannot be relied

                                               13
on as having produced a just result.” Strickland, 466 U.S. at 686.

       A successful claim for ineffective assistance of counsel must satisfy two components.

Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first prong, the petitioners must

establish that counsel’s performance was deficient by demonstrating that counsel’s

representation “fell below an objective standard of reasonableness, committing errors so

serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.”

Id. We recognize that even the finest, most experienced criminal defense attorneys may not

agree on the ideal strategy or most effective way to represent a client and therefore under this

prong, we will assume that counsel performed adequately, and will defer to counsel’s

strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). Isolated

mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily

render representation ineffective. Id. Under the second prong, the petitioners must show that

the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. The petitioners

may show prejudice by demonstrating that there is “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.

       The petitioners’ failure to satisfy either prong will cause the ineffective assistance of

counsel claim to fail. See Williams, 706 N.E.2d at 154. Therefore, if we can resolve a claim

of ineffective assistance of counsel based on lack of prejudice, we need not address the

adequacy of counsel’s performance. See Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002).

                                      A. Gold Bracelet

                                              14
       Appellants claim that each of their trial counsel was ineffective for failing to call John

Kanable, a manager at a jewelry store, to testify at trial regarding the gold bracelet found at

the crime scene. Under certain circumstances, a failure to call a useful witness can constitute

deficient performance. See Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998). However, both

the Indiana Supreme Court and this court have previously held that “a ‘decision regarding

what witnesses to call is a matter of trial strategy which an appellate court will not second-

guess.’” Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005) (quoting Brown, 691

N.E.2d at 447), trans. denied; see Wisehart v. State, 693 N.E.2d 23, 48 n.26 (Ind. 1998)

(stating that the decision of which witnesses to call is “the epitome of a strategic decision”).

       Appellants claim that Kanable’s testimony would have been useful because it could

have rebutted the testimony of the State’s witnesses who testified about the gold bracelet and

whose testimony linked the bracelet to Reid. During both criminal trials, the State presented

the testimony of Kim Seals and Eugene Milliron. Seals, an employee of the J.B. Robinson

jewelry store at the Salem Mall in Dayton, Ohio, testified that Reid had purchased a bracelet

similar to the one found at the crime scene in 1988 or 1989, and that he had subsequently

brought the bracelet in for repair. Seals further testified that the report generated prior to the

repair described the bracelet as fourteen karat gold and that Reid estimated its value to be

approximately $1200. In addition, Milliron, a subcontractor for J.B. Robinson who

completed many of the Salem Mall store’s requested repairs, testified that he recognized the

bracelet found at the crime scene and that he was 90% certain that it was the same one that he

had previously repaired.      Milliron testified that goldsmiths typically have their own

                                               15
techniques of doing different types of repairs, and, as a result, there is generally a little bit of

difference between each goldsmith’s work, and that he recognized the repair work on the

bracelet in question as his work.

       Appellants claim that they were prejudiced by their respective trial counsel’s failure to

call Kanable as a witness during their criminal trials because Kanable’s testimony was such

that it would have likely affected the outcome of their trials. Again, Appellants claim that

Kanable’s testimony would have been helpful because it could have rebutted Seals’s and

Milliron’s testimony. Specifically, Appellants claim that Kanable would have testified that

subsequent testing conducted in 2005 revealed that although the bracelet was marked as

being made with fourteen karat gold, it actually contained gold of a lesser quality.

Appellants claim that Kanable would have also testified that he estimated the bracelet’s

worth as only $350 to $399 in 1990 and that he would be unable to identify the individual

who completed the repair.

       Upon review, we cannot say that Kanable’s proffered testimony is sufficient to

demonstrate a reasonable probability, i.e. a probability sufficient to undermine confidence in

the outcome of the criminal proceedings, that, but for counsels’ alleged error, the result of the

proceedings would have been different. Kanable’s proffered testimony was nothing more

than his opinion as to the quality and value of the bracelet in question and his statement that

he could not identify the individual who completed the repair on the bracelet. Kanable did

not have any specific personal knowledge about the bracelet in question, and, as such, his

testimony stating his general opinions would not likely carry more weight with the fact-

                                                16
finders than the testimony of those who had personal knowledge about the bracelet.

       For example, while it might be difficult or even impossible for Kanable to identify

Milliron’s work, we cannot say that Kanable’s testimony to this effect is such that would

discredit Milliron’s testimony that he was able to identify his own work and that he was 90%

certain that he had completed the prior repair work on the bracelet found at the crime scene.

Likewise, while Kanable’s opinion regarding the value of the bracelet was substantially

different than that included in Seals’s testimony, the proffered value of the bracelet stated

during Seals’s testimony represented the value that was provided by Reid when he brought

the bracelet in for repair and did not appear to represent her own evaluation of the bracelet’s

value. We do not find it unusual that the owner of an item would value that item at a higher

worth than an independent expert evaluating the item. In short, Kanable’s proffered

testimony would not seem to discredit either Seals’s or Milliron’s testimony regarding their

history with Reid or their familiarity with the bracelet in question. Rather, Kanable’s

testimony merely provides his personal opinion regarding the bracelet’s quality and value and

his claimed inability to identify the individual who completed the prior repair.

       Based on our review of Kanable’s proffered testimony, we conclude that Appellants

have failed to prove that they were prejudiced by their respective trial counsel’s alleged error

because they have failed to demonstrate a reasonable probability that the outcome of their

trials would have been different had their respective trial counsel called Kanable as a witness

during trial. As such, Appellants have failed to prove that they received ineffective

assistance of trial counsel in this regard.

                                              17
                                            B. DNA

       Appellants also claim that they received ineffective assistance of trial counsel because

each of their respective trial counsel failed to call a DNA expert at trial to testify about the

DNA evidence found at the crime scene. Again, a small sample of DNA evidence was

recovered from the crime scene. Testing conducted on the DNA evidence prior to trial

excluded both of the Appellants as well as the victim as possible sources of the DNA

evidence. The parties stipulated to these test results at trial, and the test results were admitted

into evidence and were considered by the fact-finders. Appellants have failed to demonstrate

what testimony an expert witness would have been able to provide in addition to the already

stipulated-to fact that neither of the Appellants was a possible source for the DNA. Even

assuming trial counsel would have called an expert witness to testify about this fact, such

testimony would merely be cumulative of the already stipulated-to test results. As such,

Appellants have failed to demonstrate that they were prejudiced by this alleged error of their

respective trial counsel or that they received ineffective assistance of trial counsel in this

regard.

                                        CONCLUSION

       In sum, Appellants’ due process rights were not violated by the post-conviction loss or

destruction of certain evidence, Appellants were not entitled to a new trial because the State

failed to disclose before trial that one of its witnesses had a possible prior criminal

conviction, and Appellants did not receive ineffective assistance of trial counsel.

Accordingly, we affirm the post-conviction court’s denial of Appellants’ petitions for relief.

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      The judgment of the post-conviction court is affirmed.

RILEY, J., and BROWN, J., concur.




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