MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           May 13 2016, 8:21 am

regarded as precedent or cited before any                            CLERK
                                                                 Indiana Supreme Court
court except for the purpose of establishing                        Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Robert A. Murphy                                         Gregory F. Zoeller
Michigan City, Indiana                                   Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert A. Murphy,                                        May 13, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A02-1507-PC-849
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas A.
Appellee-Respondent                                      Cannon, Jr., Judge
                                                         Trial Court Cause No.
                                                         18C05-0903-MR-1



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016       Page 1 of 8
[1]   Robert Murphy appeals the post-conviction court’s denial of his petition for

      post-conviction relief. Finding no error, we affirm.


                                                    Facts
[2]   On March 25, 2009, the State charged Murphy with the murder of Jennifer

      Stafford. The charging information also contained a count of felony murder. A

      bench trial was held on February 1 through 5, 2010, during which Murphy was

      represented by two attorneys. Following the trial, the trial court found Murphy

      guilty on both counts. However, to avoid placing Murphy in double jeopardy,

      the trial court only entered judgment of conviction on the murder count. The

      trial court sentenced Murphy to sixty-five years in the Department of

      Correction.


[3]   Murphy appealed his conviction and sentence, and this Court affirmed in a

      memorandum decision. Murphy v. State, No. 18A02-1003-CR-299 (Ind. Ct.

      App. April 7, 2011). On December 5, 2011, Murphy petitioned for post-

      conviction relief, arguing that both his trial and appellate counsel had been

      ineffective. On June 11, 2015, following a hearing, the post-conviction court

      denied Murphy’s petition. Murphy now appeals.


                                   Discussion and Decision
[4]   Post-conviction proceedings provide petitioners an opportunity to raise issues

      that were not known at the time of the original trial or that were not available

      on direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). The

      petitioner has the burden of establishing his grounds for relief by a
      Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016   Page 2 of 8
      preponderance of the evidence. Id. (citing Ind. Post-Conviction Rule 1(5)). On

      appeal from the denial of a petition for post-conviction relief, the petitioner

      must establish “that the evidence, as a whole, unmistakably and unerringly

      points to a conclusion contrary to the post-conviction court’s decision.” Id.


[5]   Murphy makes numerous arguments on appeal, many of which are difficult to

      follow and lack citation to authority.1 Indiana Rule of Appellate Procedure 46

      provides that the arguments contained in an appellant’s brief must be supported

      by cogent reasoning and citation to relevant authority. Failure to follow this

      rule may result in waiver. Pittman v. State, 45 N.E.3d 805, 820-21 (Ind. Ct.

      App. 2015). In denying Murphy’s claim, the post-conviction court entered a

      thorough and well-researched order that attempted to address the merits of

      Murphy’s arguments whenever possible. Given our own preference for

      deciding issues on their merits, to the extent that we find Murphy’s arguments

      difficult to follow, we will refer to the post-conviction court’s construction of his

      arguments as an aid. However, it is not this Court’s role to act as an advocate

      for a party or address arguments that are too poorly developed to be

      understood. Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486,

      487 (Ind. Ct. App. 2003).




      1
       For instance, in an argument labelled “Issue 3.2,” Murphy appears to contend that the prosecutor
      committed misconduct by referring to inadmissible evidence during closing argument. He fails, however, to
      mention what the prosecutor said or otherwise identify the allegedly inadmissible evidence. Appellant’s Br.
      p. 16-17.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016               Page 3 of 8
[6]   Murphy argues that both his trial counsel and his appellate counsel provided

      him with ineffective assistance. We apply the same standard when reviewing

      both sets of claims. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997). Murphy

      must first show that his counsel’s performance was deficient. Wieland v. State,

      848 N.E.2d 679, 681 (Ind. Ct. App. 2006) (citing Strickland v. Washington, 466

      U.S. 668 (1984)). This means he must show that his counsel’s performance fell

      below an objective standard of reasonableness, resulting in errors so serious as

      to effectively deny him his constitutional right to counsel. Id. Second, he must

      show that he was prejudiced by the deficient performance. Id. This means he

      must show a reasonable probability that, but for counsel’s unprofessional errors,

      the result of the proceeding would have been different. Id. Because these two

      inquiries are independent, if Murphy fails to make the required showing on one,

      we need not address the other. Id.


[7]   Murphy first seems to argue that the State failed to present sufficient evidence

      that he committed felony murder by failing to present sufficient evidence that

      he committed the underlying felony, which in this case was robbery. Murphy

      has not framed this as an ineffective assistance of counsel claim, but rather as a

      free-standing claim of error. As such, the argument is waived; “[i]ssues that

      were available, but not presented, on direct appeal are forfeited on post-

      conviction review.” Ben-Yisrayl, 738 N.E.2d at 258. However, waiver

      notwithstanding, Murphy cannot show prejudice, as the trial court never

      entered a judgment of conviction on the felony murder count. Appellant’s Br.

      p. 37.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016   Page 4 of 8
[8]   Murphy next claims that the prosecutor committed misconduct by referencing

      what Murphy believes to be false evidence and perjured testimony during

      closing argument. Id. at 15-20. Murphy again presents this as a freestanding

      claim and it is therefore waived. However, in his post-conviction petition,

      Murphy appears to have presented this as a claim of ineffective assistance of

      counsel, arguing that his trial counsel was ineffective for failing to object to the

      admission of the evidence. Id. at 47. But, in its order denying relief, the post-

      conviction court noted that Murphy “has not cited any specific instances where

      he believes perjured testimony was admitted.” Id. He has also failed to cite any

      instances in his brief on appeal and we cannot construct an argument for him.

      Consequently, his argument is unavailing.


[9]   Murphy next raises the issue of ineffective assistance in the most general sense.

      Id. at 20-21. He argues that “[c]ounsel failed to investigate and prepare his

      client’s defense and advance that at trial. Counsel failed to obtain any

      independent expert analysis.” Id. at 21. In the same paragraph, he references

      DNA testing. Id. at 20. The post-conviction court determined that Murphy

      was referring to the fact that his DNA was not found at the crime scene, while

      DNA from an unknown male was found. Id. at 42. However, counsel did raise

      this issue at trial, and Murphy has failed to indicate what more his counsel




      Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016   Page 5 of 8
       should have done. He has therefore failed to show any deficiency in his

       counsel’s performance.2


[10]   Murphy makes another ineffective assistance allegation in the subsequent

       section of his brief, arguing that his counsel should have investigated the mental

       health history of State’s witness Kenny Watson. Id. at 22. However, the post-

       conviction court noted that Murphy “presented no evidence that trial counsel

       failed to investigate Kenny Watson’s history of mental illness” and that

       evidence before the post-conviction court indicated “that defense counsel was

       well aware of any mental condition Kenny Watson may have had.” Id. at 39.

       The post-conviction court noted the fact that defense counsel questioned

       Watson’s mother about his mental health issues at trial. Id. Murphy has not

       indicated what further investigation should have taken place nor has he

       explained how he was prejudiced by the allegedly insufficient investigation. His

       argument fails accordingly.


[11]   Murphy next argues that his trial counsel should have raised a Brady3 claim as

       he believes that the State did not provide the defense with certain photos that it

       had of Murphy’s body prior to trial. However, as the post-conviction court




       2
         Murphy also alleges that his appellate counsel was ineffective for failing to “raise and argue meritorious
       issues that were clear from the fact[s] of the record, competently, on direct appeal.” Appellant’s Br. p. 24-25.
       Without more, such an argument is clearly too vague for this Court to address.
       3
         Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “suppression by the prosecution of evidence
       favorable to an accused upon request violates due process where the evidence is material either to guilt or to
       punishment”).

       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016                   Page 6 of 8
       observed, trial counsel testified at the post-conviction hearing that the State had,

       in fact, given the photos to counsel prior to trial. Id. at 50. Murphy also argues

       that his trial counsel was ineffective for failing to object to the admission of an

       autopsy report and the testimony of the doctor who prepared the report. Id. at

       25. Murphy simply claims that “no evidence was given to support [the

       doctor’s] testimony.” Id. Again, Murphy gives no citation to the record and

       fails to construct a cogent argument, and we will not construct one for him. 4


[12]   In sum, Murphy frequently fails to make cogent arguments, and the arguments

       that we can decipher are unconvincing. Murphy has failed to show that either

       his trial or appellate counsel was ineffective; as the post-conviction court

       explained in its painstakingly detailed order, counsel actually did many of the

       things that Murphy has accused counsel of not doing. Though Murphy

       occasionally demands that counsel should have done more, he does not explain

       what more could have been done, nor does he explain how he was prejudiced.

       Accordingly, the post-conviction court did not err in concluding that Murphy’s

       claims were unavailing.




       4
         Murphy ends his brief with two arguments that are also too vague for this Court to review. He argues that
       the post-conviction judge should have recused himself because “Murphy has shown that the trial judge has a
       prejudice against him.” Appellant’s Br. p. 26. Murphy does not elaborate further. He also argues that the
       post-conviction court failed to consider all of his arguments, but does not identify which arguments the court
       failed to consider.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016                 Page 7 of 8
[13]   The judgment of the post-conviction court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016   Page 8 of 8
