Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                         FILED
any court except for the purpose of                         Jul 25 2012, 8:25 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                             CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
case.                                                                   tax court




ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

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

J. MICHAEL SAUER                                 ELLEN H. MEILAENDER
Deputy Public Defender                           Deputy Attorney General
Indianapolis, Indiana                            Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

PAUL LEWIS,                                      )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 53A01-1201-PC-1
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                    APPEAL FROM THE MONROE CIRCUIT COURT
                        The Honorable Marc R. Kellams, Judge
                           Cause No. 53C02-0710-PC-1042


                                       July 25, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

      Paul Lewis appeals the post-conviction court’s denial of his petition for post-

conviction relief. We affirm.

                                          Issues

        Lewis raises three issues, which we restate as:

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

             II.    whether he was denied due process because the State
                    failed to disclose material evidence; and

             III.   whether he is entitled to a new trial due to the
                    cumulative effect of trial counsel’s alleged errors and
                    the State’s failure to disclose evidence.

                                          Facts

      The facts, as stated in Lewis’s direct appeal, follow:

                     During the early morning hours of May 6, 2006, Lewis
             and his girlfriend, Rachel Pruitt, were at Anthony Rucker’s
             apartment in Bloomington. At some point, Pruitt walked into
             one of the bedrooms to plug in her cell phone. Lewis
             followed Pruitt and grabbed her by the hair. Lewis started
             banging Pruitt’s head against the wall, placed his hands
             around her throat, and squeezed until she “started seeing
             black.” [Trial] Tr. p. 136. After hearing the commotion,
             Rucker walked into the bedroom and saw Lewis choking
             Pruitt. Lewis was also banging Pruitt’s head against the wall,
             and Rucker could feel the vibrations through his feet. Pruitt’s
             knees were buckling, her mouth was turning “white and
             bluish,” and she was unable to speak because of the choking.
             Id. at 91. Although Rucker was able to initially pull Lewis
             away, Lewis again approached Pruitt and struck her in the
             face.
                     While Rucker initially called 911, he hung up because
             he did not want to get Lewis or Pruitt in trouble. However,
             Bloomington Police Officer Joseph Henry was dispatched to

                                            2
                 the scene in response to the 911 hang-up call. When Officer
                 Henry arrived, he spoke with Rucker, who informed him that
                 a female had just been battered in his apartment. At that
                 point, Officer Henry saw Pruitt looking out of an upstairs
                 window and crying.         Pruitt came downstairs but was
                 hysterical and crying so hard that she was unable to speak.
                 After several minutes, Pruitt told Officer Henry that Lewis
                 had grabbed her by the hair, slammed her head into the wall
                 multiple times, grabbed her by the throat with both hands, and
                 choked her. She also told Officer Henry that Lewis had
                 slapped her in the face several times. Pruitt had red marks on
                 her chest and around her neck.
                        After Pruitt complained of a sore head and neck,
                 Officer Henry drove her to the Bloomington Hospital
                 emergency room. Dr. John Ray examined Pruitt and
                 diagnosed her with a concussion, bruising, and muscle strain.
                 Pruitt scored her pain as a “nine” on a scale of one to ten,
                 with ten being the most severe pain. Id. at 165, 183-84.
                 When considering the nature and severity of Pruitt’s injuries,
                 Dr. Ray did not believe that Pruitt had exaggerated her pain
                 level.

Lewis v. State, No. 53A04-0609-CR-511, slip op. at 2-3 (Ind. Ct. App. Mar. 19, 2007),

trans. denied.

       The State charged Lewis with Class C felony battery and Class D felony

intimidation and alleged that he was an habitual offender. A jury found Lewis guilty as

charged and found that he was an habitual offender. The trial court sentenced Lewis to

twenty-three years in the Department of Correction.

       Lewis appealed his convictions and argued that the evidence was insufficient to

convict him of Class C felony battery because Pruitt’s injuries did not amount to “serious

bodily injury.” Id. at 4. We concluded that the jury could have reasonably inferred from

the evidence that Pruitt received “serious bodily injury” and held that the evidence was

sufficient to sustain Lewis’s conviction. Id. at 6. We also rejected Lewis’s argument that

                                               3
the trial court should have granted his request for a mistrial due to the jury foreman

mistakenly signing the wrong verdict form and then tearing up that form.

       Lewis filed a petition for post-conviction relief, arguing ineffective assistance of

trial counsel, ineffective assistance of appellate counsel, and suppression of evidence by

the State. After a hearing at which Lewis’s trial counsel testified, the post-conviction

court entered findings of fact and conclusions thereon granting in part and denying in part

Lewis’s petition. The post-conviction court found ineffective assistance of appellate

counsel and reduced Lewis’s sentence to twenty-one years, but the post-conviction court

rejected the remaining arguments. Lewis filed a motion to correct error, which was

deemed denied. Lewis now appeals.

                                        Analysis

       The petitioner in a post-conviction proceeding bears the burden of establishing

grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674,

679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of

post-conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse the

judgment unless the evidence as a whole unerringly and unmistakably leads to a

conclusion opposite that reached by the post-conviction court. Id. Further, the post-

conviction court in this case entered findings of fact and conclusions thereon in

accordance with Indiana Post-Conviction Rule 1(6). 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

                                            4
review, we accept findings of fact unless clearly erroneous, but we accord no deference 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.

                        I. Ineffective Assistance of Trial Counsel

       Lewis first argues that he was denied the effective assistance of trial counsel. To

prevail on a claim of ineffective assistance of counsel, Lewis must demonstrate both that

his counsel’s performance was deficient and that the petitioner was prejudiced by the

deficient performance. See Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert. denied.

       A counsel’s performance is deficient if it falls below an objective standard of

reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816,

824 (Ind. 2002). To meet the appropriate test for prejudice, the petitioner must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. Id. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.

Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State,

845 N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be

resolved by a prejudice inquiry alone. Id.

                              A. Lesser Included Instruction

       Lewis first claims that his trial counsel was ineffective because he failed to request

a jury instruction on the lesser included offense of Class A misdemeanor battery or argue

that the evidence was insufficient to demonstrate the “serious bodily injury” necessary to

                                              5
prove Class C felony battery. “It is well-established that 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 of the objective standard of reasonableness.”

Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). “This is so even when ‘such choices

may be subject to criticism or the choice ultimately prove detrimental to the defendant.’”

Id. (quoting Garrett v. State, 602 N.E.2d 139, 142 (Ind. 1992)).

       Our supreme court has held that “a tactical decision not to tender a lesser included

offense does not constitute ineffective assistance of counsel, even where the lesser

included offense is inherently included in the greater offense.” Id. In fact, our supreme

court noted: “ʻIt is not sound policy for this Court to second-guess an attorney through

the distortions of hindsight.’” Id. (quoting Page v. State, 615 N.E.2d 894, 896 (Ind.

1993)).

       In Autrey, the defendant was found guilty of murder and argued on appeal that his

trial counsel should have tendered instructions regarding lesser included offenses of

murder. Our supreme court noted that “[t]he record contain[ed] numerous indications

that trial counsel made the decision not to tender lesser included offenses as part of an ‘all

or nothing’ trial strategy.” Id. at 1141. Rejecting the defendant’s ineffective assistance

of counsel argument, the court noted that his trial counsel had attempted to establish a

foundation for the potential acquittal of his client. Id. “The fact that the jury found the

defendant guilty does not make this strategy deficient.” Id. at 1142. “This was an

instance where the guilt of defendant rested upon the credibility of the witnesses, which

is the sole province of the jury.” Id.

                                              6
       Although Lewis relies on portions of his trial counsel’s post-conviction hearing

testimony regarding his trial strategy and argues that Autrey is inapplicable, we disagree.

Based on Autrey, the post-conviction court here found that Lewis’s trial counsel also

employed an “all or nothing” strategy. Appellant’s App. p. 104. Lewis’s trial counsel

argued throughout the trial that Rucker and Pruitt were not credible, that their stories

were inconsistent with Pruitt’s injuries, the condition of her clothing, and the condition of

the apartment, that Rucker and Pruitt had motivations to lie, and that the State had failed

to prove its case beyond a reasonable doubt. His trial counsel repeatedly argued that,

although something happened in the apartment that evening, the State failed to prove that

Lewis battered Pruitt. A request for a lesser included offense instruction would have

implied that Lewis did, in fact, batter Pruitt, which would have been inconsistent with

trial counsel’s arguments throughout the trial. We further note that, on direct appeal, we

rejected Lewis’s argument that the evidence was insufficient to demonstrate serious

bodily injury.

       We cannot say that Lewis’s trial counsel’s strategy and failure to request an

instruction on the lesser included offense was “so deficient or unreasonable as to fall

outside of the objective standard of reasonableness.” Autrey, 700 N.E.2d at 1141; see

also Roche v. State, 690 N.E.2d 1115, 1126 (Ind. 1997) (“The decision to pursue such a

theme would, of course, have been a matter of trial strategy which cannot form the basis

for establishing ineffective assistance of trial counsel unless there was no sound basis for

not pursuing the strategy.”). “Because trial counsel is afforded considerable discretion in

choosing strategy and tactics, a strong presumption arises that counsel rendered adequate

                                             7
assistance.” Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). The post-conviction court

found that Lewis’s trial counsel rendered adequate assistance, and we cannot say those

findings are clearly erroneous.

                 B. Investigation, Preparation, and Cross-examination

       Lewis next argues that his trial counsel was ineffective because he failed to

adequately investigate, prepare for trial, or cross-examine the witnesses. Specifically,

Lewis argues that his trial counsel: (1) confused the jury with “disjointed references to a

person named Vaughn;” (2) failed to speak with Dr. Ray, who treated Pruitt in the

emergency room, before he testified; (3) failed to challenge Dr. Ray’s concussion

diagnosis; (4) failed to challenge Dr. Ray’s testimony that Pruitt tested positive for

opiates as a result of medication he gave her; (5) failed to investigate Pruitt’s visit to the

hospital ten days earlier; (6) failed to present evidence regarding Pruitt’s opiate addiction;

(7) failed to properly cross-examine Pruitt regarding her prescription; (8) failed to argue

that Pruitt went to the hospital to avoid having her probation revoked; (9) failed to use

Pruitt’s deposition to impeach her testimony that Lewis threatened to kill her; (10) failed

to use Rucker’s earlier statement to impeach his testimony that Lewis threatened to kill

Pruitt; (11) failed to use the investigating officer’s testimony to challenge Pruitt and

Rucker’s claim that Lewis threatened Pruitt; (12) failed to challenge Rucker’s claim of a

close friendship with Lewis; (13) failed to impeach Rucker as to when he called the

police; and (14) failed to properly impeach Rucker and Pruitt by showing differences

between their stories. Appellant’s Br. p. 15.



                                                8
       The post-conviction court did not separately address each of these allegations of

inadequate representation. Rather, the post-conviction court found:

                       Petitioner concedes that trial counsel did in fact
              impeach the testimony of State’s witnesses. However, he
              further contends that counsel was ineffective by enumerating
              the myriad ways in which counsel did not attack the witness’
              [sic] credibility. Petitioner takes issue with trial counsel for
              challenging the credibility of State witnesses only “in a
              limited manner.” However, counsel is permitted to make
              reasonable judgments in strategy, including how and when to
              attack witness credibility. Trial counsel testified that his
              perception was that the jury had seen and acknowledged the
              impeachment of witness’ testimony; he did not feel that
              further attacks were necessary. According to precedent, this
              is the prerogative of trial counsel and is awarded deference so
              long as it is not unreasonable.
                       Given that trial counsel possessed and put into action a
              trial strategy that he felt adequate, the court finds that further
              failure to impeach witness’ testimony at trial does not
              constitute ineffective assistance of counsel.

Appellant’s App. p. 105.

       It is undisputed that effective representation requires adequate pretrial

investigation and preparation. Badelle v. State, 754 N.E.2d 510, 538 (Ind. Ct. App.

2001), trans. denied.    However, it is well-settled that we should resist judging an

attorney’s performance with the benefit of hindsight. Id. As such, “[w]hen deciding a

claim of ineffective assistance of counsel for failure to investigate, we apply a great deal

of deference to counsel’s judgments.” Boesch v. State, 778 N.E.2d 1276, 1283 (Ind.

2002). Furthermore, “the method of impeaching witnesses 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). The nature and extent of cross-examination is a


                                              9
matter of strategy delegated to trial counsel. Waldon v. State, 684 N.E.2d 206, 208 (Ind.

Ct. App. 1997), trans. denied.

       During his opening statement, Lewis’s trial counsel argued that Pruitt and

Rucker’s stories were not logical, that they were not credible, and that they were using

drugs and alcohol on the night in question. He objected repeatedly during the State’s

direct examination of Officer Henry and cross-examined him extensively regarding Pruitt

and Rucker’s appearances, their intoxication, Pruitt’s injuries, and the condition of the

apartment.   During Rucker’s testimony, Lewis’s trial counsel objected during direct

examination and cross-examined Rucker regarding the condition of the apartment,

Pruitt’s injuries, and their ingestion of drugs. During Pruitt’s testimony, trial counsel

cross-examined her extensively regarding medications she was taking, alleged injuries

she sustained, the condition of the apartment, her probation, and the blood screen

performed at the hospital. He also objected to the admission of Dr. Ray’s testimony and

cross-examined him regarding medications given to Pruitt, the blood screen performed at

the hospital, and autoerotic asphyxiation. During closing arguments, he emphasized that

every element of the offense must be proven beyond a reasonable doubt, that Pruitt and

Rucker had motivations to lie to the police, that Pruitt and Rucker’s stories were

inconsistent, that their stories were inconsistent with Pruitt’s injuries, the condition of the

apartment, and the condition of her clothing, and that Pruitt’s injuries were consistent

with autoerotic asphyxiation. Trial counsel argued that the State failed to prove the

offense beyond a reasonable doubt.



                                              10
       Lewis’s trial counsel attacked Pruitt and Rucker’s credibility and repeatedly

pointed out inconsistencies. Our review of the record reveals that the references to

Vaughn were not unexplained or confusing, that Pruitt’s drug use1 and criminal history

was adequately addressed, and that Dr. Ray’s testimony was used to raise the issue of

autoerotic asphyxiation. Trial counsel’s failure to explain that Pruitt tested positive for

opiates prior to being given any medication at the emergency room did not prejudice

Lewis. The jury was aware that Pruitt had been using marijuana and tested positive at the

emergency room for other drugs. The jury was also aware that Pruitt was on probation

and could have had her probation revoked for illegal drug usage. The other areas that

trial counsel failed to impeach Pruitt or Rucker on are simply too minor to establish the

prejudice necessary to prove an ineffective assistance of counsel claim.

       Trial counsel’s strategy was adequate, and we cannot say that the post-conviction

court’s finding of no deficient performance by Lewis’s trial counsel is clearly erroneous.

Furthermore, Lewis has failed to demonstrate that he was prejudiced by the minor alleged

deficiencies in trial counsel’s cross-examination or investigation.

                                   II. Undisclosed Evidence

       Next, relying on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), Lewis

argues that the State violated his right to due process when the State failed to provide him

with information.       Lewis argues that the State failed to disclose the following

information: (1) Pruitt falsely told the hospital staff that she was in extreme pain so she

1
  The trial court had granted a motion in limine to prevent any reference to Pruitt or Rucker’s prior
substance use or abuse, including drugs and alcohol.


                                                 11
would be given opiate medication; (2) Kirsten Cardwell, the emergency room nurse, told

the prosecutor’s investigator that she was skeptical of Pruitt’s claims because her injuries

were inconsistent with her story; (3) Pruitt did not think Lewis ever hit her but that he

was just “rough” with her.

           Under Brady, “the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to guilt or

punishment, irrespective of the good faith or the bad faith of the prosecution.” Brady,

373 U.S. at 87, 83 S. Ct. at 1196-97. To establish a Brady violation, a defendant must

show “(1) that the prosecution suppressed evidence; (2) that the evidence was favorable

to the defense; and (3) that the evidence was material to an issue at trial.” Stephenson v.

State, 864 N.E.2d 1022, 1056-57 (Ind. 2007), cert. denied. Evidence is material under

Brady if the defendant demonstrates “a reasonable probability that the result of the

proceeding would be different if the State had disclosed [the] evidence.” Id. at 1057.

However, “the State will not be found to have suppressed material information if that

information was available to a defendant through the exercise of reasonable diligence.”

Id.

           The post-conviction court here noted that the State “did not object” during the

post-conviction proceedings to the admission of the instances of alleged failure to

disclose and that the “salient issue” was whether any of the instances produced “a

reasonable probability of undermining confidence in the outcome of the trial.”2


2
    The State failed to file an answer to Lewis’s petition for post-conviction relief and admitted:


                                                       12
Appellant’s App. p. 103. The post-conviction court found that the evidence “doesn’t

appear to be anything so obviously exculpatory that it undermine[d] the confidence in the

outcome of the case.” Id.

        The first claim is that Pruitt falsely told the hospital staff that she was in extreme

pain so she would be given opiate medication. Given the State’s admission, we have no

context for this statement or how it was determined to be false. Regardless, the jury was

presented with evidence that Lewis choked Pruitt and slammed her head onto the wall,

that her neck was red, that Pruitt was diagnosed with a concussion, and that Dr. Ray did

not believe Pruitt’s complaints of pain were exaggerated. The jury was also aware that

Pruitt had taken various drugs illegally that day. We agree with the State that, even if this

alleged statement had been admitted, “it would have constituted merely one more piece

of impeachment for a cross-examination that already vigorously attacked Pruitt’s




                (1)     The State of Indiana failed to disclose to Lewis that Kirsten
                        Cardwell, the nurse who treated the alleged victim in the
                        emergency room at Bloomington Hospital, told the prosecutor’s
                        investigator that she was skeptical of the alleged victim’s claims
                        because her “injuries” were inconsistent with her story of what
                        occurred.

                (2)     The State of Indiana failed to disclose to Lewis that the alleged
                        victim told a Monroe County Prosecutor’s investigator that she
                        did not think Lewis ever hit her, but that he was just “rough”
                        with her.

                                                 *****

                (4)     The State of Indiana failed to disclose to Lewis that the alleged
                        victim falsely told Bloomington Hospital staff that she was in
                        extreme pain so she would be given opiate medication.

Appellant’s App. p. 55; P-C.R. Trans. pp. 7-8.
                                                   13
credibility.” Appellee’s Br. p. 27. Lewis has not demonstrated that this undisclosed

evidence was material.

       The second assertion of undisclosed evidence is that Cardwell, the emergency

room nurse, told the prosecutor’s investigator that she was skeptical of Pruitt’s claims

because her injuries were inconsistent with her story. At the post-conviction hearing,

Cardwell testified that she did not recall Pruitt or making the statement to the

investigator. Again, even if Cardwell’s statement to the investigator had been admitted at

trial, it was contradicted by Dr. Ray’s testimony that he did not believe Pruitt’s

complaints of pain were exaggerated.        Further, Lewis’s trial counsel had already

repeatedly argued that Pruitt’s injuries were not consistent with her story. Lewis has not

demonstrated a reasonable probability that the result of the proceeding would be different

if the State had disclosed this evidence.

       The third statement was that Pruitt did not think Lewis ever hit her but that he was

just “rough” with her. Pruitt testified that Lewis grabbed her, “bang[ed her] head off of

the wall repeatedly,” choked her by squeezing her neck, and tried to hit her in the

bathroom. Trial Tr. p. 136. She told Officer Henry that Lewis had slapped her in the

bathroom. Rucker also testified that Lewis was hitting Pruitt in the bathroom with “his

open hand and closed hand.”        Id. at 101.   To the extent this third statement was

inconsistent with the testimony that Lewis actually hit Pruitt in the bathroom, we cannot

say that its admission would have resulted in a reasonable probability of a different

outcome.    Pruitt’s credibility was already extensively called into question, and the

choking and banging her head on the wall were enough to sustain a conviction for

                                            14
battery. Lewis has failed to demonstrate that the post-conviction court’s finding on this

issue is clearly erroneous.

                                    III. Cumulative Errors

       Lewis also argues that he is entitled to a new trial as a result of the cumulative

effect of the ineffective assistance of trial counsel and undisclosed evidence. According

to Lewis, even if his individual ineffective assistance of trial counsel and undisclosed

evidence claims fail, he is entitled to relief based on the cumulative effect of those

alleged errors.

       Our supreme court has held that “[e]rrors by counsel that are not individually

sufficient to prove ineffective representation may add up to ineffective assistance when

viewed cumulatively.”         French, 778 N.E.2d at 826.     “A conviction based upon an

accumulation of defense attorney errors, when counsel’s mistakes do substantial damage

to the defense, must be reversed.” Id. We agree with the State that the errors alleged by

Lewis are minor and “nitpicking.” Appellee’s Br. p. 29. We have already concluded that

trial counsel’s performance was not deficient and, if it was, Lewis was not prejudiced.

Moreover, the evidence suppressed by the State was not material. We cannot say that the

alleged errors did substantial damage to Lewis’s defense.

                                         Conclusion

       The post-conviction court’s findings regarding ineffective assistance of trial

counsel and the Brady violation were not clearly erroneous. Moreover, the cumulative

effect of the alleged errors does not warrant relief. We affirm.



                                             15
     Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




                                        16
