MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  Dec 22 2015, 8:59 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Kevin R. Hewlate                                         Justin F. Roebel
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Freed,                                           December 22, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         79A02-1506-PC-599
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         79D02-1201-PC-1



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015       Page 1 of 22
[1]   In 2010, Appellant-Petitioner Michael Freed was convicted of Class B felony

      robbery. Freed’s conviction was affirmed on direct appeal. Freed filed a

      petition for post-conviction relief (“PCR”) in January of 2012. On May 19,

      2015, the post-conviction court issued an order denying Freed’s petition. Freed

      then appealed, arguing that the post-conviction court erroneously determined

      that he did not suffer ineffective assistance of appellate counsel. We affirm.



                            Facts and Procedural History
[2]   Our opinion in Freed’s prior direct appeal, which was handed down on October

      3, 2011, instructs us as to the underlying facts and procedural history leading to

      this post-conviction appeal:

              On July 6, 2008, at approximately 2:30 a.m., Freed entered a
              Village Pantry convenience store in Lafayette. The store was
              located near the intersection of Brady Lane and Concord
              Avenue. Freed wore a glove on his left hand, a hat on his head,
              and another article covering the bottom of his face. Employee
              Cora Taegel was working alone at the store. Freed brandished a
              knife and demanded that Taegel give him the money from the
              register. Taegel gave Freed $115 from the drawer. Freed fled.
              Taegel suffered a panic attack but called 911 right away. Freed
              headed north to his friend’s apartment, which was in a complex
              adjacent to the convenience store. He shed his disguise while en
              route.

              Law enforcement responded. Officers located a hat and other
              clothing items in the vicinity of the Village Pantry, but Freed
              eluded police for the time being.

              The robbery was caught on a surveillance tape. The tape

      Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 2 of 22
        apparently did not capture Freed’s face, though it did record his
        voice.

        Freed was later arrested and jailed in connection with an
        unrelated burglary/forgery. Freed and an accomplice allegedly
        broke into the residence of Alice and Menlo Pridemore and stole
        a purse containing a checkbook. Freed and his accomplice then
        went to a bank to cash forged checks.

        While in jail for the latter offenses, Freed was concerned that the
        Pridemores would testify against him at trial. Freed devised a
        plan to murder them, and he sought assistance from fellow
        inmate James Scott Littrell. Littrell played along but intended to
        report Freed to authorities. Littrell falsely told Freed that he
        knew someone who could perform a murder-for-hire. Littrell
        asked Freed to put his murder request into writing.

        Freed wrote a letter to Littrell’s made-up hit man. The letter
        stated in part:

                I have a case with these people as witness’s and I
                hear your the man to talk to about taking care of
                problems for good. So my case will be clean at trial.
                Im in a bind because Im in jail.... If you help me, Ill
                make sure you get your money when I get out. Just
                give me a few days unless Scott can loan me the
                money right now. I really need your help.... I will do
                anything to make this problem disappear.

        State’s Ex. 16. Freed attached a hand-drawn map of the
        Pridemores’ home. At the end of the letter, Freed wrote: “Check
        for an unsolved VP robbery in July of 08 at Concord and brady
        In.” Id. This statement was the equivalent of a confession to the
        Village Pantry robbery. The confession functioned as
        “insurance” or “collateral” for Littrell’s assistance in the murder
        plot. In other words, if Freed were to tell on Littrell, Littrell
        would have Freed’s robbery confession to disclose to law

Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 3 of 22
        enforcement.

        Littrell turned Freed’s letter over to authorities, and Detective
        Daniel Shumaker soon met with Freed to question him about the
        Village Pantry robbery. Freed denied involvement, though he
        made various incriminating statements to Detective Shumaker
        during their interview. For example, Freed indicated that the
        store clerk was a female. Freed also asked Detective Shumaker
        how he learned of the robbery, Detective Shumaker said that he
        found out from Freed’s own mouth, and Freed then asked if
        Littrell was still in jail. Following the interview, Detective
        Shumaker obtained from Freed a DNA sample and handwriting
        exemplar.

        Freed was later housed with inmate James Goodman. Freed told
        Goodman about the Village Pantry robbery and shared details
        about the crime. Freed said that he robbed a female clerk, wore a
        disguise and glove, used a knife, stole about $125, and fled to his
        friend’s apartment. He also discussed with Goodman the letter
        that he wrote soliciting a hit man and confessing to the robbery.
        Goodman passed this information on to Detective Shumaker.

        Forensic technician Daun Powers analyzed DNA swabs
        collected from the hat recovered near the Village Pantry. Powers
        could not exclude Freed as a contributor to a particular DNA
        sample taken from inside the hat. Or statistically speaking, about
        five people within the Tippecanoe County population could have
        contributed to the DNA sample, and Freed’s DNA profile
        identified him as one of them.

        Handwriting expert Courtney King analyzed Freed’s jailhouse
        letter. King concluded that Freed was the probable author of the
        first part of the letter, in which Freed requested assistance from
        the supposed hit man. King was less certain about the
        confession, as it looked slightly different and was likely written
        on a different backing surface. However, according to King,
        indications were that Freed authored the confession as well.

Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 4 of 22
        Detective Shumaker reviewed the Village Pantry surveillance
        tape after interviewing Freed. Detective Shumaker identified
        Freed as the robber by matching Freed’s voice with the voice
        recorded on the tape.

        [Appellee-Respondent the State of Indiana (the “State”)] charged
        Freed with Class B felony robbery and the lesser-included Class
        D felony theft. The State alleged that “[o]n or about July 6,
        2008, in Tippecanoe County, State of Indiana, Michael G. Freed
        did knowingly or intentionally take property, to wit: U.S.
        Currency, from another person or from the presence of another
        person, to wit: Cora Taegel, by using or threatening the use of
        force on the said Cora Taegel, or by putting the said Cora Taegel
        in fear, and Freed committed said offense while armed with a
        deadly weapon, to wit: a knife....” Appellant’s App. p. 10.[1]

                                                 ****

        The State called Taegel, Littrell, Goodman, King, Powers,
        Detective Shumaker, and several other investigating officers to
        testify to the foregoing events. The State introduced Freed’s
        letter into evidence over objection.

        The defense challenged Littrell and Goodman’s credibility on the
        stand, eliciting their criminal records for purposes of
        impeachment. The defense also argued in closing that their
        testimony was “garbage” and should be disregarded by the jury.
        Id. at 300.

        At least twice at trial, when the jailhouse letter, Pridemore
        burglary, and/or murder solicitation were being discussed, the
        court instructed the jury that




1
   For the purposes of this memorandum decision, references to “Appellant’s App.” refer to the appendix
submitted in the Appellant’s direct appeal. Any reference to the appendix submitted by the Appellant in the
instant PCR proceedings will be referred to as “Appellant’s PCR App.”

Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015        Page 5 of 22
                      evidence of other crimes or wrongs or acts is not
                      admissible to prove the character of a person in order
                      to show action and conformity therewith. It may
                      however be admissible for other purposes such as
                      proof of intent, knowledge, or identity. Defendant’s
                      statements are admitted only for the purpose of
                      proving intent, knowledge or identity as to the crimes
                      on trial and are not to be considered by you for any
                      other purpose. The circumstances under which the
                      statements were made may only be considered in
                      determining the ... reliability of the statement and not
                      as independent evidence that the defendant
                      committed the crimes on trial.

              Id. at 126, 149. The record indicates that a similar
              admonishment was included in the court’s final instructions. See
              id. at 281-83.


      Freed v. State, 954 N.E.2d 526, 528-30 (Ind. Ct. App. 2011) (brackets added).

[3]   Within an hour of being sent to deliberate, the jury submitted the following

      question to the trial court: “As stated in closing argument for the Prosecutor or

      by the Prosecutor, is it a fact of law that voice recognition is sufficient testimony

      for a conviction?” Trial Tr. p. 314. Upon receiving the question, the trial court

      summonsed the parties to discuss the jury’s question and the court’s proposed

      answer. The trial court informed counsel that its research had “come up with

      four cases that indicate that the answer to that question would be yes.” Trial

      Tr. p. 314. The trial court indicated that it felt it appropriate to clarify for the

      jury and recommended either: (1) to bring the jury back into the courtroom and

      allow counsel the opportunity to discuss the relevant case law before the jury or



      Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 6 of 22
      (2) to send the jury’s note back with the indication that “it is an accurate

      statement of the law.” Trial Tr. p. 315.


[4]   Counsel for both Freed and the State indicated that they did not feel additional

      argument was necessary. Freed’s counsel suggested referring the jury back to

      the final jury instructions without answering the jury’s question. Counsel for

      the State indicated that he believed that it was appropriate for the trial court to

      respond to the jury’s question.


[5]   In determining how to deal with the jury’s question, the trial court engaged in

      the following discussion with counsel:


                [The Court]:        In the Jackson case[2], their description of the
                holding of the Bane case[3] is as follows: Voice identification
                evidence is independently sufficient to sustain a conviction.

                [Defense Counsel]: Again, I’m not disputing that, Your Honor,
                that there are cases supporting your position.

                [The Court]:                I’m thinking that perhaps --yeah---

                [Defense Counsel]: ---I’m just saying that the jurors have been
                instructed already and that would be our suggestion, just to have
                them refer to the instructions.

                [The Court]:          I think I have to address their point of law
                because I think it is a point that is not contained in the



      2
          Jackson v. State, 758 N.E.2d 1030 (Ind. Ct. App. 2001).


      3
          Bane v. State, 424 N.E.2d 1000 (Ind. 1981).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 7 of 22
        instructions. And sufficiency almost never is contained in the in
        the instructions and, in fact, sufficiency instructions have been
        disapproved. Both of you agree that no further argument is
        necessary.

        [Defense Counsel]: That is true.

        [The Court]:          So what I’m thinking that I should do is state
        this statement, which is an accurate statement of the law, which
        is that voice identification evidence is independently sufficient to
        sustain a conviction and then to say the---repeat the instruction
        you’re not to focus on any one instruction, but to look at all of
        the instructions together. All the other instruction then
        incorporate you to look at all of the evidence, you are to think
        about credibility, and things of that nature. So the particular
        instruction that I’m thinking of is the one that says you are to
        consider all of the instructions, both preliminary and final
        together. Do not single out any certain sentence or any
        individual point or instruction and ignore the others. After I say
        the answer to their question which is that voice identification
        evidence is independently sufficient to sustain a conviction.

        [The State]:             The State concurs.

        [Defense Counsel]: We object to adding to the instructions.

        [The Court]:         Okay. I’m going to overrule the objection
        and instruct as indicated.… What’s 13.01. Oh yes, we’ll call that
        13.01A. That’s good. This is going to be an instruction that I
        gave them in response to their questions but it’s not---. Give a
        copy to the attorneys so that they can see what it is that I’m
        proposing to do.

        [The State]:             The State has no objection.

        [The Court]:       And do you have an additional objection to
        what has already been stated?

Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 8 of 22
           [Defense Counsel]: No, Your Honor, but may I have this case
           cite to which you are referring?

           [The Court]:          Yes. I found four cases on the subject. The
           leading case is Bane B-a-n-e, 424 N.E.2d, 1000. That’s again cited
           in Evans versus State, 542 N.E.2d, 546[4]---

           [Defense Counsel]: ---that’s sufficient.

           [The Court]:         … I think that this is an accurate statement
           of the law. It answers their question. It doesn’t---and it’s not
           covered by any other instruction. I think I am obligated by the
           statute to provide a clarification on a point of law if requested by
           the jury and both parties have agreed that additional argument is
           not the appropriate way to do so. And so I will send this back to
           the jury room and I probably should sign it in doing so and we
           should keep a copy of the signed instruction for the file. Please
           make a copy and take the copy to the jury room. Okay. Thank
           you.


Trial Tr. pp. 317-21 (brackets added, emphases in original). The trial court then

answered the jury’s question by submitting the following instruction to the jury:

                                  Court’s Instruction No. 13.01A

           Voice identification evidence is independently sufficient to
           sustain a conviction.

           You are to consider all the instructions both preliminary and final




4
    Evans v. State, 542 N.E.2d 546 (Ind. 1989).


Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 9 of 22
              together. Do not single out any certain sentence or any
              individual point or instruction and ignore the others.


      PCR Ex. A.


[6]   Following jury deliberations, “Freed was convicted as charged.” Freed, 954

      N.E.2d at 530. “The trial court entered judgment of conviction only for Class B

      felony robbery.” Id.


[7]   Freed raised two issues on direct appeal: “(I) whether the trial court erred by

      admitting evidence of his unrelated burglary, forgery, and solicitation for

      murder, and (II) whether the evidence [was] sufficient to sustain his conviction

      for robbery.” Id. Upon review, we concluded that the trial court did not err by

      admitting reference to Freed’s unrelated burglary, forgery, and solicitation for

      murder. Id. at 532. We also concluded that the evidence was sufficient to

      sustain Freed’s robbery conviction. Id.


[8]   On January 19, 2012, Freed filed a pro-se PCR petition. In this petition, Freed

      claimed that he suffered ineffective assistance of his appellate counsel. Freed,

      by counsel, filed an amended petition on November 4, 2014. Following an

      evidentiary hearing, the post-conviction court issued an order denying Freed’s

      request for PCR on May 19, 2015. This appeal follows.



                                Discussion and Decision
[9]   Post-conviction procedures do not afford the petitioner with a super-appeal.

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

      Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 10 of 22
       narrow remedy for subsequent collateral challenges to convictions, challenges

       which must be based on grounds enumerated in the post-conviction rules. Id.

       A petitioner who has been denied post-conviction relief appeals from a negative

       judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

       v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

       (Ind. Ct. App. 1999), trans. denied.


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

       745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

       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,

       a petitioner must convince this court that 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.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 11 of 22
                 I. Ineffective Assistance of Appellate Counsel
[11]   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 on as having produced a

       just result.” Strickland, 466 U.S. at 686.


[12]   The standard of review for a claim of ineffective assistance of appellate counsel

       is the same as for trial counsel in that the petitioner must show appellate

       counsel was deficient in his performance and that the deficiency resulted in

       prejudice. Overstreet v. State, 877 N.E.2d 144, 165 (Ind. 2007) (citing Bieghler v.

       State, 690 N.E.2d 188, 193 (Ind. 1997)).


               First, an appellant must make a showing that the performance of
               his counsel was deficient. Second, the appellant must show
               adverse prejudice as a result of the deficient performance.
               Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Again,
               this Court will presume that counsel is competent, and appellant
               must present strong and convincing evidence to rebut the
               presumption. Clark v. State (1990), Ind., 561 N.E.2d 759, 763.


       Lowery v. State, 640 N.E.2d 1031, 1048 (Ind. 1994).



       Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 12 of 22
[13]   Indiana courts recognize three basic categories of alleged ineffective

       representation by appellate counsel: (1) denying access to an appeal, (2) failing

       to raise an issue on appeal, and (3) failing to present an issue completely and

       effectively. See Bieghler, 690 N.E.2d at 193-95. Freed’s allegation of ineffective

       assistance falls under the second category.


[14]   The Indiana Supreme Court has noted that the failure to raise an issue on direct

       appeal can be a formidable error because of the well-established rule that issues

       that were or could have been raised on direct appeal are not available for post-

       conviction review. See Bieghler, 690 N.E.2d at 193. Nevertheless,

       “‘[i]neffectiveness is very rarely found in these cases.’” Id. (quoting Lissa

       Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. Va. L.Rev. 1,

       25 (1994)) (brackets in original). One explanation for why ineffectiveness is

       rarely found in these types of cases is that the decision of what issues to raise on

       appeal is one of the most important strategic decisions to be made by appellate

       counsel. Id.


               “Experienced advocates since time beyond memory have
               emphasized the importance of winnowing out weaker arguments
               on appeal and focusing on one central issue if possible, or at most
               a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct.
               3308, 3313, 77 L.Ed.2d 987 (1983). As Justice Jackson noted,

                       “Legal contentions, like the currency, depreciate
                       through over-issue. The mind of an appellate judge is
                       habitually receptive to the suggestion that a lower
                       court committed an error. But receptiveness declines
                       as the number of assigned errors increases.
                       Multiplicity hints at lack of confidence in any one....

       Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 13 of 22
                        [E]xperience on the bench convinces me that
                        multiplying assignments of error will dilute and
                        weaken a good case and will not save a bad one.”

               Id. at 752, 103 S.Ct. at 33133 (quoting Justice Robert H. Jackson,
               Advocacy Before the United States Supreme Court, 25 Temple L.Q.
               115, 119 (1951)). Accordingly, when assessing these types of
               ineffectiveness claims, reviewing courts should be particularly
               deferential to counsel’s strategic decision to exclude certain issues
               in favor of others, unless such a decision was unquestionably
               unreasonable. See Smith v. Murray, 477 U.S. 527, 535-36, 106
               S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986).


       Id. at 193-94.


[15]   The Indiana Supreme Court noted that “[i]n analyzing this sort of case, the

       Seventh Circuit, under its performance analysis, first looks to see whether the

       unraised issues were significant and obvious upon the face of the record.” Id. at

       194. “If so, that court then compares these unraised obvious issues to those

       raised by appellate counsel, finding deficient performance ‘only when ignored

       issues are clearly stronger than those presented.’” Id. (quoting Gray v. Greer, 800

       F.2d 644, 646 (7th Cir.1986) (additional citations omitted). The Supreme Court

       also noted that when completing this analysis, “the reviewing court should be

       particularly sensitive to the need for separating the wheat from the chaff in

       appellate advocacy, and should not find deficient performance when counsel’s

       choice of some issues over others was reasonable in light of the facts of the case

       and the precedent available to counsel when that choice was made.” Id.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 14 of 22
        A. Whether Freed’s Counsel Provided Ineffective Assistance
             By Failing to Raise an Issue on Direct Appeal
[16]   Freed alleges that his appellate counsel provided ineffective assistance by failing

       to argue on direct appeal that the trial court erred in answering the specific

       question posed by the jury during deliberations. In support of this allegation,

       Freed argues that the giving of the additional instruction after the jury began

       deliberating without rereading all of the previously given instructions

       constituted reversible error. Freed therefore claims that this issue was “clearly

       stronger” than the issues raised by counsel on direct appeal. Appellant’s Br. p.

       13.


[17]   Indiana Code section 34-36-1-6 provides as follows: “[i]f, after the jury retires

       for deliberation: … (2) the jury desires to be informed as to any point of law

       arising in the case; the jury may request the officer to conduct them into court,

       where the information required shall be given in the presence of, or after notice

       to, the parties or attorneys representing the parties.” The general rule in these

       situations is that once deliberations commence, the trial court should not give

       any additional instructions to the jury. Crowdus v. State, 431 N.E.2d 796, 798

       (Ind. 1982). This rule keeps the trial court “from giving any special emphasis,

       inadvertent or otherwise, to a particular issue in the case, and thus avoids the

       possibility that the additional instruction(s) may tell the jury what it ought to do

       concerning that issue.” Id.


[18]   However, the Indiana Supreme Court has identified one exception to the

       general rule, holding as follows:

       Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 15 of 22
               When confronted with a question from a jury which has
               commenced deliberation, the challenge to the trial judge is to
               respond in a manner which accords with the legal requirements
               for final instructions and which is fair. The path is extremely
               hazardous for the court that would depart from the body of final
               instructions and do other than reread the final instructions in
               responding to jury questions. Such a departure will be warranted
               in only the most extreme circumstances. Brannum v. State, (1977)
               267 Ind. 51, 366 N.E.2d 1180; Cameron v. State, (1979) Ind., 383
               N.E.2d 1039. It must serve to amend the final instructions by
               adding a necessary one previously omitted or correcting an
               erroneous one, and must be fair to the parties in the sense that it
               should not reflect the judge’s view of factual matters. Hall v.
               State, (1856) 8 Ind. 439. Thus, it is only when the jury question
               coincides with an error or legal lacuna[5] in the final instructions
               that a response other than rereading from the body of final
               instructions is permissible.


       Jenkins v. State, 424 N.E.2d 1002, 1003 (Ind. 1981).


[19]   In support of his argument, Freed cites to Graves v. State, 714 N.E.2d 724 (Ind.

       Ct. App. 1999). In Graves, the defendant faced numerous charges, including

       robbery. 714 N.E.2d at 725. During deliberations, the jury sent the trial court a

       note asking “Did [Defendant] have to personally take the property to be guilty

       of robbery?” Id.


               In response, the State suggested reading to the jury only an
               instruction on accomplice liability. Counsel for [Defendant], on
               the other hand, objected to providing the jury with any additional



       5
         A “lacuna” is “[a] missing part of something; a blank space; a gap.” BLACK’S LAW
       DICTIONARY (10th ed.) p. 1006.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 16 of 22
               instructions. He further advised the court that if it chose to
               overrule his objection and provide the jury with additional
               instructions, he believed the proper procedure would be to re-
               read the entire set of final instructions, including any additional
               instructions. The court, over Graves’ objection, read to the jury
               only an instruction on accomplice liability.


       Id. at 725-26. Upon review, a panel of this court concluded as follows:


               Because of the existence of the legal lacuna in the form of the
               omitted instruction on accomplice liability, we conclude that the
               trial court properly provided the jury with the additional
               instruction. However, the trial court committed reversible error
               by failing to re-read the entire set of final instructions
               contemporaneously with the giving of the additional instruction.
               See Durden v. State, 406 N.E.2d 281 (Ind. Ct. App. 1980)
               (affirming trial court’s action of reading supplemental
               instructions to jury in conjunction with re-reading of all
               instructions); see also [Downs v. State, 656 N.E.2d 849, 853 (Ind.
               Ct. App. 1995)] (where trial court provided additional instruction
               to jury and, by agreement of parties, did not re-read all
               instructions, Court of Appeals affirmed noting that “[t]he better
               procedure would have been for the trial court to reread all of the
               instructions at the same time the supplemental instruction was
               read to the jury, a procedure specifically waived by Downs”).


       Id. at 727.


[20]   However, we disagree with our colleagues’ broad conclusion that a trial court

       always commits reversible error by failing to reread the entire set of final

       instructions contemporaneously with the giving of the additional instruction

       because we find that conclusion to be unsupported by the relevant Indiana

       authority. Rather, our review indicates that while, under some circumstances,

       Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015   Page 17 of 22
       such an approach might be found to be reversible error, under other

       circumstances, such an approach does not constitute reversible error. See Riley

       v. State, 711 N.E.2d 489, 492-93 (Ind. 1999) (acknowledging that while the

       generally accepted procedure in answering a jury’s question on a matter of law

       is to reread all instructions in order to avoid emphasizing any particular point,

       departure from this procedure is permitted when the jury question coincides

       with a legal lacuna in the final instructions); Downs, 656 N.E.2d at 853 (noting

       that although the better approach would have been for the trial court to re-read

       all of the jury instructions when giving a supplemental instruction to fill in the

       gap left by a legal lacuna, based on the facts presented in that case, the trial

       court did not commit reversible error by failing to do so). Review of the record

       before us in the instant appeal convinces us that the trial court’s actions below

       did not constitute reversible error.


[21]   In the instant matter, within an hour of being sent to deliberate, the jury

       submitted the following question to the trial court: “As stated in closing

       argument for the Prosecutor or by the Prosecutor, is it a fact of law that voice

       recognition is sufficient testimony for a conviction?” Trial Tr. p. 314. Upon

       receiving the question, the trial court called the parties back to court and

       discussed how the trial court intended to respond to the jury’s question. The

       trial court informed counsel that its research had “come up with four cases that

       indicate that the answer to that question would be yes.” Trial Tr. p. 314. The

       trial court indicated that it felt it appropriate to clarify for the jury and

       recommended either: (1) to bring the jury back into the courtroom and allow


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       counsel the opportunity to discuss the relevant case law before the jury or (2) to

       send the jury’s note back with the indication that “it is an accurate statement of

       the law.” Trial Tr. p. 315.


[22]   Counsel for both Freed and the State indicated that they did not feel additional

       argument was necessary. Freed’s counsel suggested referring the jury back to

       the final jury instructions without answering the jury’s question. Counsel for

       the State indicated that he believed that it was appropriate for the trial court to

       respond to the jury’s question. The trial court indicated that it believed it was

       required to answer the jury’s question because the jury’s question involved a

       matter of law not covered by the other instructions.


[23]   In determining how to respond to the jury’s question, the trial court stated the

       following:


               So what I’m thinking that I should do is state this statement,
               which is an accurate statement of the law, which is that voice
               identification evidence is independently sufficient to sustain a
               conviction and then to say the---repeat the instruction you’re not
               to focus on any one instruction, but to look at all of the
               instructions together. All the other instruction then incorporate
               you to look at all of the evidence, you are to think about
               credibility, and things of that nature. So the particular
               instruction that I’m thinking of is the one that says you are to
               consider all of the instructions, both preliminary and final
               together. Do not single out any certain sentence or any
               individual point or instruction and ignore the others. After I say
               the answer to their question which is that voice identification
               evidence is independently sufficient to sustain a conviction.

                                                      ****

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               I think that this is an accurate statement of the law. It answers
               their question. It doesn’t---and it’s not covered by any other
               instruction. I think I am obligated by the statute to provide a
               clarification on a point of law if requested by the jury and both
               parties have agreed that additional argument is not the
               appropriate way to do so. And so I will send this back to the jury
               room and I probably should sign it in doing so and we should
               keep a copy of the signed instruction for the file. Please make a
               copy and take the copy to the jury room. Okay. Thank you.


       Trial Tr. pp. 318, 320-21 (brackets added, emphases in original). The trial court

       then sent the following instruction to the jury:


                                     Court’s Instruction No. 13.01A

               Voice identification evidence is independently sufficient to
               sustain a conviction.

               You are to consider all the instructions both preliminary and final
               together. Do not single out any certain sentence or any
               individual point or instruction and ignore the others.


       PCR Ex. A.


[24]   The trial court’s statements indicated that it believed that it was required to

       answer the jury’s question to fill in the gap left by a legal lacuna. The trial court

       offered the parties the opportunity to present additional argument to the jury,

       but both parties indicated that they did not think additional argument was

       necessary. Further, although the trial court did not reread all of the jury

       instructions to the jury, in responding to the jury’s question, the trial court did

       remind the jury that it was to consider all of the instructions together and that it


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       should not single out any certain sentence or any individual point or

       instruction.


[25]   Review of the trial court’s actions in this regard convinces us that the situation

       falls within the exception to the general rule that would require the trial court to

       reread all of the previously given jury instructions to the jury when answering

       the jury’s question. As such, we conclude that the trial court could not have

       been found to have committed reversible error in this regard. In light of this

       conclusion, we cannot conclude that the proffered issue was “clearly stronger”

       than the issues raised by counsel on direct appeal.


[26]   Further, during the evidentiary hearing on Freed’s PCR petition, appellate

       counsel acknowledged that while he was familiar with case law indicating that

       the giving of an additional instruction to the jury during deliberations could be

       found to be reversible error, he was also familiar with case law indicating the

       opposite. Appellate counsel indicated that in deciding what issues to raise on

       direct appeal, he reviewed the record, considered the potential issues, and

       determined that the challenge to the admissibility of Freed’s prior statements

       presented the strongest chance of success on appeal.


[27]   Again, the decision of what claims to raise on appeal is one of the most

       important strategic decisions to be made by appellate counsel and, upon review,

       we will not second guess appellate counsel’s strategic decision as to what claims

       to raise unless counsel’s decisions in this regard were unquestionably

       unreasonable. Bieghler, 690 N.E.2d at 193-94. Given the conflicting relevant


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       authority, coupled with our determination that the trial court did not commit

       reversible error by answering the jury’s question without rereading all of the

       previously given jury instructions, we conclude that Freed has failed to prove

       that his appellate counsel provided ineffective assistance in deciding to pursue

       other claims on direct appeal.6


[28]   The judgment of the post-conviction court is affirmed.


       Baker, J., and Pyle, J., concur.




       6
         We also note that to the extent that Freed argues that his appellate counsel provided ineffective
       assistance by failing to challenge the giving of Instruction No. 13.01A because it contained an
       appellate standard, our review of the instruction reveals that the tendered instruction does not
       contain an appellate standard but rather an accurate statement of the law, which provided an
       answer to the specific legal question posed by the jury.

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