      MEMORANDUM DECISION                                                FILED
                                                                     Sep 09 2016, 7:51 am
      Pursuant to Ind. Appellate Rule 65(D), this                        CLERK
      Memorandum Decision shall not be regarded as                   Indiana Supreme Court
                                                                        Court of Appeals
      precedent or cited before any court except for the                  and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Vernando Ross,                                           Gregory F. Zoeller
      a/k/a Randle Jackson                                     Attorney General of Indiana
      Michigan City, Indiana
                                                               Katherine Modesitt Cooper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Vernando Ross,                                           September 9, 2016
      a/k/a Randle Jackson,                                    Court of Appeals Case No.
                                                               49A05-1510-PC-1567
      Appellant-Petitioner,
                                                               Appeal from the Marion Superior
              v.                                               Court.
                                                               The Honorable Grant W. Hawkins,
                                                               Judge.
      State of Indiana,                                        The Honorable Christina R.
                                                               Klineman, Commissioner.
      Appellee-Respondent.                                     Cause No. 49G05-0611-PC-219268




      Garrard, Senior Judge

[1]   Vernando Ross, a/k/a Randle Jackson, appeals from the post-conviction

      court’s denial of his petition for post-conviction relief, raising various

      allegations of error. We affirm.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 1 of 15
[2]   A more detailed recitation of the facts adduced at trial can be found in this

      court’s memorandum decision affirming Ross’s convictions and sentence. See

      Ross v. State, No. 49A05-0803-CR-134 (Ind. Ct. App. October 17, 2008). To

      summarize, on the evening of November 2, 2006, Ross went to Willie

      Johnson’s house to confront everyone present about a perceived lack of respect

      shown to Paul Baker, a man who had been living in Johnson’s home for a few

      months. Johnson and Baker had not been getting along, and Johnson’s

      landlord and friend, Sherrice Williams, wanted Baker out of the residence.

      After Ross appeared at the house, an argument ensued and quickly escalated.


[3]   Lue Moffett, Johnson’s nephew, walked from the back of the house and

      discovered Ross waiving a handgun and shouting profanities in front of the

      group. Ross instructed Moffett, who had his hands in the air, to go to a corner

      of the room. When Moffett did not do so, Ross fired a shot at Moffett’s feet.

      Moffett rushed at Ross and the two struggled. Ross shot Moffett once in the

      groin, and then again in the right thigh, knocking Moffett to the ground.

      Johnson then tackled Ross, and as the two struggled, Ross fired his gun.

      Johnson suffered five gunshot wounds, two of which were fatal. While that

      struggle was occurring, Moffett ran from the house and called 911.


[4]   The State charged Ross with murder, attempted murder, and carrying a

      handgun without a license. A jury found Ross guilty of all charges and the trial

      court imposed consecutive, advisory sentences of fifty-five years for murder and

      thirty years for attempted murder. The trial court imposed a one-year sentence

      for the handgun offense to be served concurrently with the murder sentence.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 2 of 15
[5]   On direct appeal, Ross challenged the sufficiency of the evidence of his

      attempted murder and murder convictions, the appropriateness of his sentence,

      and the trial court’s denial of his motion for mistrial, alleging prosecutorial

      misconduct in closing argument. We affirmed his convictions and sentence,

      and the Supreme Court denied transfer.

                                                                                                                    1
[6]   On February 19, 2013, Ross filed the pro se petition for post-conviction relief

      which is the subject of this appeal. The State filed an answer denying Ross’s

      allegations and asserting the affirmative defenses of waiver and res judicata.

      Bifurcated evidentiary hearings were held on December 11, 2013, June 25,

      2014, and September 17, 2014.


[7]   At the evidentiary hearing held on December 11, 2013, Jeffrey Baldwin, who

      was Ross’s defense counsel, Leah Lewis, and Robert Baskin testified. The post-

      conviction court agreed to continue the evidentiary hearing to enable Ross to

      subpoena Andrea Davis, a woman to whom Ross had been engaged at the time

      of the crimes, and requested that he provide the court with Davis’s address. At

      the hearing held on March 19, 2014, no witnesses testified. The post-conviction

      court agreed to continue the evidentiary hearing until June 25, 2014, and

      reissue a subpoena for Davis. Davis did not appear at the June 25, 2014

      evidentiary hearing date. However, Sergeant Mark Prater was present and

      testified as a witness for both Ross and the State. The evidentiary hearing was



      1
        Ross had previously filed a petition, but withdrew it. A copy of the petition for post-conviction relief that is
      the subject of this appeal is not in the record before us.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016             Page 3 of 15
      further continued to September 17, 2014, at which time Officer James Burton

      and Ross testified. Once again, Davis did not appear.


[8]   During the course of the evidentiary hearings, numerous exhibits were admitted

      in evidence. Those exhibits include: the record of proceedings and appellate

      briefs from Ross’s direct appeal; a copy of Moffett’s pre-trial deposition; a copy

      of Sherrice Williams’s pre-trial deposition; notes taken by Sergeant Prater; a

      transcript of the statement given by Williams to police; a transcript of Moffett’s

      statement to police; an interdepartmental report from Detective Todd Lappin to

      Sergeant Prater; an interdepartmental report from Detective Kevin Duley to

      Captain Mark Rice; the deposition of Sergeant Prater; a transcript of a

      statement given by Julian Marshall to the police; a copy of the narrative section

      of a police report prepared by Officer Burton; a Rand McNally map and driving

      instructions from Sunset Strip Club to 348 W. 28th Street showing a travel time

      of nine minutes and forty-three seconds; phone records; a custodial

      interrogation form dated April 10, 2008, including Miranda rights advisements

      and waiver of rights signed by Ross and witnessed by Sergeant Prater; the audio

      recording of the statement given by Ross to Sergeant Prater on April 10, 2008;

      and the transcript of Ross’s April 10, 2008 statement to Sergeant Prater. The

      trial court also took judicial notice of its file.


[9]   After all evidence had been presented, the post-conviction court entered

      detailed findings of fact and conclusions of law denying Ross’s petition, leading

      to this appeal.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 4 of 15
[10]   A petitioner seeking post-conviction relief bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Hollowell v. State, 19

       N.E.3d 263, 268-69 (Ind. 2014). A petitioner such as Ross, who appeals from

       the denial of post-conviction relief, appeals from a negative judgment. Id. at

       269. As such, to prevail on appeal, the petitioner must show that the evidence

       as a whole leads unerringly and unmistakably to a conclusion opposite that

       reached by the post-conviction court. Id. The trial court’s findings of fact and

       conclusions of law, entered in accordance with Indiana Post-Conviction Rule 1,

       section 6, will be reversed only upon a showing of clear error—that which

       leaves us with a definite and firm conviction that a mistake has been made. Id.

       We do not defer to the post-conviction court’s legal conclusions. Id.


[11]   Ross’s contentions on appeal can be divided into two categories: (1) ineffective

       assistance of trial counsel; and (2) post-conviction court error.


[12]   When reviewing a claim of ineffective assistance of counsel, we follow the test

       set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

       674 (1984). Id. We must determine whether the petitioner established deficient

       performance by counsel, and whether the petitioner established prejudice

       resulting from counsel’s errors. Id. Although this test involves two separate

       inquiries, a claim of ineffective assistance of counsel may be disposed of on

       either part of the test. Dickens v. State, 997 N.E.2d 56, 65 (Ind. Ct. App. 2013),

       trans. denied. Counsel’s performance is presumed effective, and a petitioner

       must offer strong and convincing evidence to overcome this presumption.

       Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 5 of 15
[13]   Ross’s trial counsel, Baldwin, testified that he is a criminal defense attorney

       who was admitted to practice law in 1987 and has exclusively practiced

       criminal defense since 1990. By the time Baldwin represented Ross, he had

       tried between fifty and one hundred jury trials and had handled many homicide

       cases.


[14]   With respect to Ross’s case, Baldwin testified that he had reviewed all of the

       discovery provided by the State before trial, provided copies of the discovery to

       Ross, took the depositions he felt were necessary to Ross’s defense, and

       followed up on information provided by Ross and Andrea Davis. Pursuing

       leads and a potential alibi offered by Ross, Baldwin sent an investigator to the

       Sunset Strip Club, met with potential witness Julian Marshall prior to

       Marshall’s arrest, engaged in numerous meetings with Ross at the jail to discuss

       the case, listened to all jail call recordings pertinent to Ross’s case, and spoke

       with Ross about the jail calls to determine if Ross had any concerns about the

       content of those calls.


[15]   Prior to trial, Baldwin filed several motions on Ross’s behalf, hired an

       investigator to locate and interview witnesses, and conducted depositions.

       After the trial began, Baldwin voir dired the jury, moved for a separation of

       witnesses, presented an opening statement revealing the defense theory of the

       case—that someone other than Ross was the perpetrator, cross-examined

       sixteen witnesses, made objections at trial, moved for a mistrial when the

       State’s closing involved a display which referred to Ross as “Ghetto godfather”,

       and made a closing argument consistent with the defense theory of the case.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 6 of 15
[16]   Despite these efforts, Ross contends that Baldwin rendered ineffective

       assistance of counsel by failing to impeach Lue Moffett, the only eyewitness to

       testify at trial, with inconsistent statements.


[17]   Our Supreme Court has consistently held that the method of impeaching a

       witness is a tactical decision and a matter of trial strategy that does not amount

       to ineffective assistance. Kubsch v. State, 934 N.E.2d 1138, 1151 (Ind. 2010).

       This includes situations, such as the one alleged by Ross, where there are

       inconsistencies between an out-of-court statement and in-court testimony of a

       witness.


[18]   Moffett’s testimony at trial covers nearly one hundred thirty pages of transcript,

       of which nearly forty pages is testimony on cross-examination. During that

       cross-examination, Baldwin elicited testimony from Moffett attacking his

       recollection of key points that were crucial to the State’s case, challenging his

       credibility with evidence of drug and alcohol use at or near the time of the

       crimes, and attempting to create reasonable doubt that Ross was the

       perpetrator. While Ross’s brief does list other inconsistencies in Moffett’s

       testimony, Baldwin testified at the post-conviction hearing that he would not

       have asked questions on cross-examination that would either damage his

       client’s case, evoke sympathy for the witness and against his client, or involve

       minute details. Baldwin explained that he had learned over years of criminal

       defense practice that none of these tactics proved to be persuasive to a jury.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 7 of 15
[19]   Ross also claims that Baldwin rendered ineffective assistance of counsel by

       failing to properly impeach Julian Marshall with inconsistent statements.


[20]   Marshall’s testimony covers nearly one hundred fifty-six pages of the trial

       transcript, approximately forty-three pages of which is testimony on cross-

       examination. During that cross-examination, consistent with the strategy to

       discredit Marshall’s testimony, Baldwin emphasized that Marshall had received

       a deal from the State regarding other charges in exchange for his testimony

       against Ross. The tactic was to suggest that Marshall had a motive to lie in

       Ross’s trial. Baldwin believed that if he had focused on each inconsistency or

       contradiction between Marshall’s statements to him prior to trial and those

       made at trial, this tactic might have led to the admission of damaging evidence

       suggesting that Ross attempted to recruit Marshall to establish a false alibi and

       that Ross and Marshall were involved in dealing drugs.


[21]   The trial court’s findings that Baldwin’s cross-examination of Moffett and

       Marshall were conducted according to tactical decisions of trial strategy is

       supported by the evidence and the findings support the trial court’s conclusion

       that counsel was not ineffective for failure to impeach either witness by omitted

       lines of questioning.


[22]   Ross further asserts that Baldwin was ineffective by failing to present alibi

       witnesses and suggests a failure to investigate. When an ineffective assistance

       of counsel claim alleges the failure to present witnesses, in this case, alibi

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


       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 8 of 15
       what their testimony would have been. Lee v. State, 694 N.E.2d 719, 722 (Ind.

       1998). With respect to claims of failure to investigate, we give great deference

       to counsel’s decisions. Boesch v. State, 778 N.E.2d 1276, 1283 (Ind. 2002).

       Counsel’s duty is to make reasonable investigations or to make a reasonable

       decision making particular investigations unnecessary. Id. at 1284 (quoting

       Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).


[23]   Baldwin testified at the post-conviction hearing that he considered all potential

       witnesses Ross suggested might support his alibi. Ross’s alleged alibi was that

       he was at the Sunset Strip Club at the time of the shootings. Baldwin spoke

       with Ross’s girlfriend, Andrea Davis, on multiple occasions and followed up on

       the information she gave him. Baldwin hired investigator Larry Atwell to

       investigate Ross’s alleged alibi. Atwell interviewed Leah Lewis and Andrea

       Thomas and then met with Baldwin to share his notes from those interviews

       and to discuss what he had learned. After investigating the alleged alibi,

       Baldwin discovered that the witnesses Ross had suggested placed Ross at the

       Sunset Strip Club earlier in the day on the date of the crimes, but not at the time

       the crimes occurred.


[24]   Further, Lewis, who testified at Ross’s evidentiary hearing, stated that Ross

       might have been at the Sunset Strip Club until 10:30 p.m. on the night of the

       crime, but agreed that her statements to the investigator in 2006 would be more

       accurate. Lewis, who was a bartender at the club, normally arrived for her shift

       between 9:30 and 10:00 p.m. She knew Ross was there the night of the crime

       because he became so angry at her when she cut off his alcohol supply that he

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 9 of 15
       threw a pack of cigarettes at her. However, she stated that she could not testify

       with certainty exactly when Ross left the club that night. She also testified that

       she was unaware Ross had given a statement to police after his conviction and

       sentencing admitting that he had left the Sunset Strip Club, went to the location

       of the shooting, and shot the victims.


[25]   While a failure to call a useful witness can in certain circumstances constitute

       deficient performance, the decision regarding which witnesses to call is a matter

       of trial strategy, which courts on review will not second-guess. Brown v. State,

       691 N.E.2d 438, 447 (Ind. 1998). Additionally, trial counsel will not be deemed

       ineffective for not attempting a futile endeavor. Allen v. State, 686 N.E.2d 760,

       780 (Ind. 1997).


[26]   Here, Baldwin testified that he considered each of the witnesses Ross suggested

       could support his alleged alibi. However, none of the witnesses could place

       Ross at the Sunset Strip Club at the time of the crimes. Ross presented no

       evidence that his alibi witnesses told Baldwin or the investigator anything

       definitive about how long Ross was at the club. Furthermore, Ross later

       admitted to police that he left the club, went to the scene of the shootings, and

       shot the victims. Baldwin’s decision not to call these witnesses was a matter of

       trial strategy. Ross has not shown that the outcome of his trial would have been

       different had those witnesses testified. The post-conviction court correctly

       determined that Baldwin’s strategic decision with respect to these witnesses was

       not ineffective assistance of counsel.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 10 of 15
[27]   Next, Ross argues that Baldwin’s representation was ineffective by failing to

       investigate the recorded phone calls between him and Marshall that were used

       by the State at trial. He claims that Baldwin should have objected to the

       admission of the recordings and should not have allowed the State to play them

       out of context. Baldwin testified that he reviewed the recorded phone calls

       between Marshall and Ross, which were provided by the State during

       discovery.


[28]   Baldwin was aware that Ross referred to himself as “diabolical” in the

       recordings. P.C.R. Tr. p. 72. Although Baldwin had successfully reached an

       agreement with the State to redact portions of the calls due to their reference to

       other criminal acts, he did not believe there was a legal basis for redacting the

       “diabolical” references, because Ross used the term when identifying himself

       during those calls. Baldwin testified that he consulted with Ross after listening

       to the recordings to find out if there was any reason for concern about the

       content. Baldwin believed that he could not question Marshall about the jail

       phone calls in such a way that the calls could be characterized as only

       addressing drug deals because they also involved discussions of fabricating an

       alibi. He also believed that putting evidence of drug dealing in front of the jury

       was a bad strategy.


[29]   In order to prevail on a claim of ineffective assistance due to the failure to

       object, the petitioner must show a reasonable probability that the objection

       would have been sustained if made. Garrett v. State, 992 N.E.2d 710, 723 (Ind.

       2013). Ross has not established a reasonable probability that the objection

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 11 of 15
       would have been sustained. The post-conviction court did not err by rejecting

       Ross’s claim.


[30]   Ross also claims that Baldwin was ineffective by failing to reveal an alleged

       conflict of interest with respect to Marshall. Among the guarantees provided by

       the Sixth Amendment is the guarantee to counsel whose undivided loyalties lie

       with his client. Coleman v. State, 694 N.E.2d 269, 273 (Ind. 1998). In order to

       establish a conflict of interest amounting to a violation of the Sixth

       Amendment, a petitioner must show that counsel actively represented

       conflicting interests such that it adversely affected his performance. Id. A mere

       possibility of a conflict of interest is insufficient to justify the reversal of a

       conviction. Id.


[31]   Baldwin represented Ross when he spoke to Marshall on behalf of Ross.

       Baldwin testified at the evidentiary hearing that he never served as Marshall’s

       attorney before or after Marshall’s arrest on his own charges, and stood nothing

       to gain with respect to Marshall at Ross’s expense. Baldwin testified that after

       Marshall’s arrest he would not have spoken with Marshall without Marshall’s

       attorney being present. The decisions Baldwin made with respect to the

       impeachment of Marshall likewise do not support a claim of conflict of interest.

       The post-conviction court did not err with respect to this claim.


[32]   Ross additionally argues that the post-conviction court abused its discretion by

       failing to take judicial notice of Marshall’s deposition. On October 31, 2014,

       after the close of evidence, Ross filed a motion requesting the post-conviction


       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 12 of 15
       court to take judicial notice of Marshall’s pretrial deposition. The court denied

       the motion, stating that the court “cannot take judicial notice on requested

       material.” Appellant’s App. p. 15. The post-conviction court also denied

       Ross’s motion to reconsider, in which he claimed to have “inadvertently failed

       to admit [the deposition] into evidence.” Id. at 48.


[33]   The admission and exclusion of evidence rests within the sound discretion of

       the post-conviction court, whose decision we review for an abuse of discretion.

       Griffith v. State, 31 N.E.3d 965, 969 (Ind. 2015). We will reverse the trial court’s

       decision only when it is clearly against the logic and effect of the facts and

       circumstances before the court and the error affects a party’s substantial rights.

       Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).


[34]   Indiana Evidence Rule 201 provides for the admission of certain facts or laws

       set forth in the rule. Depositions of witnesses are not among the kinds of

       material of which a trial court may take judicial notice. Although Ross offered

       and the post-conviction court admitted other depositions and evidence at the

       hearings, Ross did not introduce Marshall’s deposition. The post-conviction

       court did not abuse its discretion by failing to take judicial notice of Marshall’s

       deposition after the close of evidence.


[35]   Ross further argues that the post-conviction court abused its discretion by

       failing to issue additional subpoenas for Baldwin and Davis and by excluding

       Davis’s affidavit from evidence.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 13 of 15
[36]   Indiana Post-Conviction Relief Rule 1, section 9(b), provides in pertinent part

       that if a pro se petitioner requests the issuance of subpoenas for witnesses at an

       evidentiary hearing, the petitioner shall specifically set forth in an affidavit the

       reason the witness’s testimony is required and the substance of the expected

       testimony. The rule further provides that the trial court shall order the issuance

       of the subpoena upon a finding that the proposed witness’s testimony would be

       relevant and probative. P.-C.R. § 9(b). If, however, the trial court finds that the

       testimony would not be relevant or probative, the trial court shall enter the

       finding in the record and deny the issuance of the subpoena. Id.


[37]   With respect to Baldwin, he testified at length at the evidentiary hearing. When

       the post-conviction court asked Ross at the September 17, 2014 hearing why he

       wanted to subpoena Baldwin for additional testimony, Ross replied that he

       wanted to cross-examine him about his strategy regarding documents Ross had

       been able to introduce at the hearing after Baldwin’s testimony. Baldwin had

       previously testified that he had no recollection of the documents. The post-

       conviction court, when denying Ross’s request, explained that, as the record

       stood, Ross could still make the argument that Baldwin either had the

       documents but chose not to use them, or that he was unaware of them without

       the need to subpoena Baldwin. Ross has not established an abuse of discretion

       on the part of the post-conviction court.


[38]   With respect to Davis’s testimony, the post-conviction court did not abuse its

       discretion by refusing to issue yet another subpoena for her testimony. The

       court had already continued the evidentiary hearing twice, but Davis failed to

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 14 of 15
       appear for any of the three hearing dates. The court used addresses provided by

       Ross in an attempt to secure her presence at the hearing. The post-conviction

       court was within its discretion to refuse to issue another subpoena.


[39]   As a substitute for Davis’s testimony, Ross asked the trial court to admit a

       document Ross claimed was Davis’s affidavit. The trial court did not admit the

       affidavit, citing the State’s right to cross-examine Davis. Additionally, Ross did

       not establish a proper foundation for the admission of the document. The post-

       conviction court did not abuse its discretion.


[40]   In light of the foregoing, we affirm the decision of the post-conviction court.


[41]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-PC-1567 | September 9, 2016   Page 15 of 15
