MEMORANDUM DECISION
                                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                                          Apr 07 2016, 10:13 am

this Memorandum Decision shall not be                                                  CLERK
regarded as precedent or cited before any                                        Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court
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
Scott King                                                Gregory F. Zoeller
Russell W. Brown, Jr.                                     Attorney General of Indiana
Scott King Group
Merrillville, Indiana                                     Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bronco Morgan,                                            April 7, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A05-1508-PC-1159
        v.                                                Appeal from the Elkhart Circuit
                                                          Court
State of Indiana,                                         The Honorable Terry Shewmaker,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          20C01-0903-FA-3
                                                          20C01-1203-PC-27



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016            Page 1 of 11
                                             Case Summary
[1]   Appellant-Petitioner Bronco Morgan (“Morgan”) challenged his conviction of

      Attempted Murder in a petition for post-conviction relief and also in a

      subsequent motion, on remand from this Court, to set aside the post-conviction

      order. He was denied relief and appeals those orders. We affirm.



                                                       Issues
[2]   Morgan presents two issues for review:

               I.       Whether he was denied the effective assistance of trial
                        counsel; and


               II.      Whether he established a claim of newly-discovered
                        evidence. 1


                              Facts and Procedural History
[3]   The facts were recited by a panel of this Court on direct appeal as follows:




      1
        Morgan articulates a third issue (incorporating his presumption that he established the credibility of a
      witness recantation), that is, whether his conviction was fundamentally unfair, having been obtained by
      perjured testimony. The post-conviction rules contemplate a narrow remedy for subsequent collateral
      challenges to convictions. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). The purpose of a petition for
      post-conviction relief is to provide petitioners the opportunity to raise issues not known or available at the
      time of the original trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). Moreover,
      collateral challenges to convictions must be based upon grounds enumerated in the post-conviction rules.
      Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006), trans. denied; see also Indiana Post-Conviction
      Rule 1(1). To the extent that Morgan attempted to raise a free-standing issue of trial error in the admission of
      evidence, this is not a proper issue to be addressed through post-conviction relief apart from his attempt to
      establish a claim of newly-discovered evidence. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002).

      Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016                Page 2 of 11
        During the early morning hours of June 17, 2008, Morgan and
        his half-brother, Craig Smith (“Smith”) were at a party at an
        apartment building in Elkhart. At some point, Morgan and
        Smith became involved in a physical altercation with a person
        called “Rat Boy.” (Tr. 400.) Smith held “Rat Boy” against a
        wall so that Morgan could strike him. Afterwards, “Rat Boy”
        left but announced that he “would be back.” (Tr. 401.) “Rat
        Boy” went into one of the nearby apartments and placed a call to
        his cousin, Varnell Dixon (“Dixon”).


        Dixon arrived shortly thereafter and confronted Smith. Dixon
        shoved Smith and Smith struck Dixon in the face. Dixon “pulled
        his hand back behind him” and “started shooting.” (Tr. 339.)
        Smith was struck and killed by one of the bullets. Dixon fled.


        Morgan rushed into an apartment which had a view of the street
        in front of the apartment building. Holding a gun, Morgan
        looked out the front window and said to Kevin Bush (“Bush”),
        “he must have went out the back.” (Tr. 484.) Morgan ran to the
        fire escape and emptied his gun. Dixon collapsed on the ground
        next to his vehicle.


        Morgan returned to Bush’s apartment, handed Bush the gun, and
        directed him to dispose of it. Morgan told one of the party guests
        that he “got that m----- f-----“ because “he killed his brother.” (Tr.
        405.)


        Police officers responded to a 9-1-1 call reporting Smith’s death.
        During the initial investigation, Officer Jason Ray stepped onto
        the fire escape and heard someone gasping for air. His attention
        was drawn to a nearby parking lot. Officer Ray shined his
        flashlight in the area and found Dixon lying on the pavement,
        bleeding from a gunshot wound to his head.




Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016   Page 3 of 11
              Morgan was charged with Attempted Murder, and a jury found
              him guilty as charged. He was sentenced to fifty years
              imprisonment, with one year suspended to probation.


      Morgan v. State, No. 20A04-1008-CR-577, slip op. at 2-3 (Ind. Ct. App. Mar. 25,

      2011). On appeal, Morgan raised two issues, challenging the admission of

      evidence and his sentence. His conviction and sentence were affirmed. See id.


[4]   On March 13, 2012, Morgan filed a pro-se petition for post-conviction relief.

      The petition was later amended with the assistance of counsel, to allege that

      Morgan had been denied the effective assistance of trial counsel and also had

      newly-discovered evidence. On October 21, 2013, following a hearing at which

      a recanting trial witness testified, the petition was denied. Morgan appealed.


[5]   During the pendency of the appeal, Morgan filed a petition for remand. He

      asserted that he had obtained information that the recanting witness in his case

      had been involved in a separate murder investigation, she had recanted

      allegations, and the murder charge had been dismissed. Morgan was granted a

      dismissal without prejudice and a remand to have the opportunity to develop an

      evidentiary record in regard to the murder prosecution. On May 22, 2015,

      Morgan filed a motion for relief from judgment, attacking the denial of post-

      conviction relief. The post-conviction court conducted an evidentiary hearing

      and, on July 17, 2015, again denied Morgan post-conviction relief. This appeal

      ensued.



                                 Discussion and Decision
      Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016   Page 4 of 11
                                        Standard of Review
[6]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing

      from the denial of post-conviction relief, the petitioner stands in the position of

      one appealing from a negative judgment. Id. On review, we will not reverse

      the judgment of the post-conviction court unless the evidence as a whole

      unerringly and unmistakably leads to a conclusion opposite that reached by the

      post-conviction court. Id. A post-conviction court’s findings and judgment will

      be reversed only upon a showing of clear error, that which leaves us with a

      definite and firm conviction that a mistake has been made. Id. In this review,

      findings of fact are accepted unless they are clearly erroneous and no deference

      is accorded to conclusions of law. Id. The post-conviction court is the sole

      judge of the weight of the evidence and the credibility of witnesses. Id.


                               Effectiveness of Trial Counsel
[7]   Morgan contends he was denied the effective assistance of trial counsel because

      counsel did not interview Michael Casey (“Casey”) or present Casey’s

      testimony at trial. Casey, a resident of the building where Dixon was shot,

      informally provided security there. He was one of fifty-eight potential witnesses

      listed by the State, and he had given a police statement.


[8]   Effectiveness of counsel is a mixed question of law and fact. Strickland v.

      Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

      Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016   Page 5 of 11
      of ineffective assistance under the two-part test announced in Strickland. Id. To

      prevail on an ineffective assistance of counsel claim, a defendant must

      demonstrate both deficient performance and resulting prejudice. Dobbins v.

      State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

      Deficient performance is that which falls below an objective standard of

      reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

      1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that

      “there is a reasonable probability that, but for counsel’s unprofessional errors,

      the result of the proceeding would have been different. A reasonable

      probability is a probability sufficient to undermine confidence in the outcome.”

      Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

      1996). The two prongs of the Strickland test are separate and independent

      inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an

      ineffectiveness claim on the ground of lack of sufficient prejudice … that course

      should be followed.” Id.


[9]   We “strongly presume” that counsel provided adequate assistance and

      exercised reasonable professional judgment in all significant decisions. McCary

      v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

      considerable discretion in the choice of strategy and tactics. Timberlake v. State,

      753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the

      facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

      1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring

      reasonable professional judgment even if the strategy in hindsight did not serve

      Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016   Page 6 of 11
       the defendant’s interests. Id. In sum, trial strategy is not subject to attack

       through an ineffective assistance of counsel claim, unless the strategy is so

       deficient or unreasonable as to fall outside the objective standard of

       reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).


[10]   “As a general proposition, the decision whether to call a particular witness is

       encompassed within the attorney’s trial strategy.” Osborne v. State, 481 N.E.2d

       376, 380 (Ind. 1985). Absent a clear showing of injury and prejudice, an

       appellate court will not declare counsel ineffective for failure to call a witness.

       Id.


[11]   Morgan claims that his trial counsel failed to identify, interview, and subpoena

       Casey, an “eyewitness to the crime.” (Appellant’s Br. at 6.) However, in his

       post-conviction testimony, Casey made no claim that he had seen the shooting

       of Dixon. Rather, he testified that he had seen a person other than Morgan run

       downstairs with a gun tucked up his sleeve; that he had not seen Morgan armed

       with a gun; and that he had heard no more shots after Morgan exited the fire

       escape. According to Casey, he had given police a statement denying that he

       had seen Morgan with a gun. This was contradicted by the post-conviction

       testimony of Elkhart Police Captain Cris Seymore, who testified that Casey did

       not even mention Morgan’s name in his police interview. As such, it is not

       clear that Casey had made any pretrial statement tending toward exculpation of

       Morgan. At most, he had claimed not to have seen Morgan with a gun.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016   Page 7 of 11
[12]   On the other hand, defense counsel presented the trial testimony of a claimed

       eyewitness, Maurice Starkey (“Starkey”). Starkey testified that he was, at the

       time of Dixon’s shooting, a roommate of Bush. Starkey testified that he had a

       “good view” and saw Bush fire “maybe six shots” at Dixon, but he had not

       initially realized that Dixon had been struck. (Trial Tr. at 430, 643.) According

       to Starkey, he took his hysterical girlfriend back to Chicago and while there he

       first heard that there had actually been a fatal shooting and a non-fatal shooting.

       Not wanting to be labeled a “snitch,” he did not contact police. (Trial Tr. at

       647.)


[13]   In closing argument, defense counsel then invited the jury to conclude that

       Bush, not Morgan, shot Dixon. That version of events was rejected by the jury.

       Trial counsel’s efforts and strategy, although they did not ultimately achieve the

       result desired by Morgan, were not so unreasonable as to constitute ineffective

       assistance of counsel. See Badelle v. State, 754 N.E.2d 510, 539 (Ind. Ct. App.

       2001) (deciding in relevant part that, when trial counsel’s efforts were “more

       than adequate” to support a chosen defense, counsel’s decision not to seek out

       additional witnesses was a judgment call within the wide range of reasonable

       assistance), trans. denied.


[14]   Morgan did not make a “clear showing of injury and prejudice,” such that trial

       counsel may be considered ineffective for failure to call Casey as a witness.

       Osborne, 481 N.E.2d at 380.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016   Page 8 of 11
                                 Newly Discovered Evidence
[15]   Indiana Post-Conviction Rule 1(1)(a)(4) provides that one who has been

       convicted of a crime may seek post-conviction relief to assert a claim “that there

       exists evidence of material facts, not previously presented and heard, that

       requires vacation of the conviction or sentence in the interest of justice.”


[16]   A new trial on the basis of newly-discovered evidence is to be granted only

       when nine requirements are demonstrated: (1) the evidence has been

       discovered since the trial; (2) it is material and relevant; (3) it is not cumulative;

       (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due

       diligence was used to discover it in time for trial; (7) the evidence is worthy of

       credit; (8) it can be produced upon a retrial of the case; and (9) it will probably

       produce a different result at retrial. Bunch v. State, 964 N.E.2d 274, 283 (Ind.

       Ct. App. 2012), trans. denied.


[17]   At Morgan’s trial, Dorothy Rogers (“Rogers”) testified for the State. She

       testified that she had gone to the apartment building where the shootings

       occurred in order to purchase drugs. Rogers further testified that Morgan “was

       shooting,” from his position on the ground while others on the fire escape were

       “running trying to get away from the bullets.” (Trial Tr. at 404, 409.)

       According to Rogers, Morgan later told her that he had shot “that m----- f----

       [who had] killed his brother.” (Trial Tr. at 405.) Rogers testified that she had

       then made contact with police and indicated “that she had something she felt

       like she needed to say.” (Trial Tr. at 406.)


       Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016   Page 9 of 11
[18]   By the time of the post-conviction hearing, Rogers asserted that she had an

       improved memory and desired to recant her trial testimony. When she was an

       active user of crack cocaine, Rogers had felt intimidated or harassed by the

       police. Now sober, she claimed that her trial testimony against Morgan had

       been coerced and was false. In her post-conviction testimony, Rogers explicitly

       denied that she saw Morgan shooting. Thus, Rogers provided testimony in

       impeachment of her trial testimony.


[19]   In her recantation testimony, Rogers’ responses were selective. She claimed to

       recall details of the shooting but at the same time claimed to be unable to recall

       the substance of either her trial testimony or statement to police. She did not

       recall approaching the police. She could not recall whether her statements and

       trial testimony were consistent. The post-conviction court found that Rogers’

       recantation was not worthy of credit.


[20]   In general, whether a post-conviction witness’s testimony is worthy of credit is a

       factual determination to be made by the trial judge who has the opportunity to

       see and hear the witness testify. Bunch, 964 N.E.2d at 292. It is not within the

       province of the appellate court to replace a trial judge’s assessment of credibility

       with its own. Id. We thus accept the determination of the post-conviction court

       that Rogers’ post-conviction testimony is not worthy of credit. Morgan did not

       establish the nine prerequisites for a new trial on the basis of newly-discovered

       evidence.



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016   Page 10 of 11
[21]   Morgan was not denied the effective assistance of trial counsel. He did not

       show entitlement to a new trial on a claim of newly-discovered evidence.

       Accordingly, the post-conviction court properly denied the petition for post-

       conviction relief.


[22]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1508-PC-1159 | April 7, 2016   Page 11 of 11
