      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                         FILED
      this Memorandum Decision shall not be                                     Jun 15 2018, 10:39 am
      regarded as precedent or cited before any
                                                                                     CLERK
      court except for the purpose of establishing                               Indiana Supreme Court
                                                                                    Court of Appeals
      the defense of res judicata, collateral                                         and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                         Curtis T. Hill, Jr.
      Public Defender of Indiana                               Attorney General of Indiana
      John A. Pinnow                                           J.T. Whitehead
      Deputy Public Defender                                   Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Wilbert T. Sturgis,                                      June 15, 2018
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               46A03-1711-PC-2652
              v.                                               Appeal from the LaPorte Circuit
                                                               Court
      State of Indiana,                                        The Honorable Thomas J.
      Appellee-Respondent.                                     Alevizos, Judge
                                                               Trial Court Cause No.
                                                               46C01-1304-PC-6



      Mathias, Judge.

[1]   Wilbert Sturgis (“Sturgis”) appeals the LaPorte Circuit Court’s denial of his

      petition for post-conviction relief. Sturgis argues his trial counsel was ineffective


      Court of Appeals of Indiana | Memorandum Decision 46A03-1711-PC-2652 | June 15, 2018               Page 1 of 11
      because he was shackled during his jury trial and his trial counsel failed to

      object.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The following facts and procedural history of Sturgis’s case are taken from the

      unpublished memorandum decision of his direct appeal:


              On the morning of September 20, 2004, teenager Barbara Day
              was dismissed early from Michigan City High School because of
              an earlier altercation she had with another teenager known only
              by his nickname, “Spider.” Tr. p. 324. Day went to her home in
              Michigan City and was joined there by at least eight other
              individuals, including twenty-six-year-old Sturgis. Day came up
              with a plan, to which everyone agreed, to go to the westside of
              Michigan City to look for Spider and to fight him.


              The group at Day’s house agreed to go to a school bus stop near
              9th and Willard in Michigan City at about the time the bus was
              scheduled to drop off students. The group drove there in two
              cars, with Sturgis riding in a car driven by Natasha Harris. After
              arriving at the intersection, the group parked and got out of the
              cars. Day believed she saw Spider’s cousin in a group of boys
              that included fifteen-year-old Blake Kelly walking along the
              sidewalk.


              Day approached the group of boys and began asking Spider’s
              supposed cousin where he was. This boy denied knowing where
              Spider was. Kelly then told Day and her friends that they were
              not going to “jump him,” and Day told him to be quiet because
              he had nothing to do with it. Id. at 330. One of Day’s cousins,


      Court of Appeals of Indiana | Memorandum Decision 46A03-1711-PC-2652 | June 15, 2018   Page 2 of 11
        Willie Martin, began threatening to fight Kelly but Day told him
        to leave Kelly alone.


        While Day and her group were arguing with Kelly and his
        group, Sturgis walked up to Kelly and shot him in the jaw with a
        handgun. Kelly was unarmed, as was everyone else in the two
        groups besides Sturgis. This initial shot did not kill
        Kelly. Sturgis then put the handgun up against the side of Kelly’s
        head and shot him again, this time killing him. Police soon
        obtained several statements identifying Sturgis as Kelly’s killer,
        and they obtained a warrant for Sturgis’s arrest.


        On September 21, 2004, Sturgis turned himself into the Gary
        Police Department. He was housed in the [L]ake County Jail
        before being transported to the Michigan City Police Department
        for an interview on September 22, 2004. During the drive from
        the jail, officers did not engage in any conversation
        with Sturgis regarding the case. After arriving at the police
        station, Sturgis signed a waiver of rights form and submitted to
        an unrecorded interview. On the written waiver of rights form,
        next to the question “Has any force, threats or promises of any
        kind or nature been used by anyone to influence you to waive
        these rights,” Sturgis originally wrote “yes” but crossed it out and
        wrote “no” along with his initials. Ex. 1. Initially during the
        unrecorded interview, Sturgis said he had been out of town when
        Kelly was shot so he could not have done it. He later retracted
        that statement, however, and admitted to what had happened.


        Police then began an audiotaped interview of Sturgis,
        approximately one-and-a-half hours after he had arrived at the
        police station. At the outset of the recording, Sturgis was asked if
        any force, threats, or promises had been made to secure his
        statement, and Sturgis responded “No.” Ex. 2, p. 6. Sturgis then
        proceeded to describe, in cogent detail, the events leading up to
        and including his shooting and killing of Kelly. Toward the end
        of the interview, Sturgis was asked if there was anything he
Court of Appeals of Indiana | Memorandum Decision 46A03-1711-PC-2652 | June 15, 2018   Page 3 of 11
        wanted to add to his statement, and he replied, “I think I need
        some psychiatric help I really do.” Id. at p. 35.


        The State charged Sturgis with murder and Class A felony
        kidnapping. Sturgis never filed any motions related to his
        competency or any alleged mental illness. However, he did file a
        motion to suppress his statement to police on the basis that it was
        allegedly involuntary. After conducting a hearing, the trial court
        denied this motion.


        Sturgis’s jury trial was held on April 11–14, 2005. During voir
        dire, the prosecutor read the charging information to the
        prospective jurors. The prosecutor also stated that the case
        involved “Mr. Blake Kelly, who was 15 years old at the time,
        [who] was shot shortly after leaving the school bus . . . .” Voir
        Dire Tr. p. 7. The prosecutor also noted that there had been “a
        lot of news media reports about that incident” and questioned
        prospective jurors whether they recalled reading or hearing any
        of that coverage. Id. The prosecutor also referred to Kelly's killing
        as a “terrible tragedy.” Id. at 11. He also asked prospective jurors
        whether they knew Kelly, and one person responded that he did
        and that Kelly “seemed to be a good person.” Id. at 12. Defense
        counsel made no objections during voir dire.


        The jury found Sturgis guilty of murder but not guilty of
        kidnapping. Additionally, the jury entered a finding for
        sentencing purposes that Sturgis had a history of criminal or
        delinquent activity. On May 12, 2005, the trial court
        sentenced Sturgis to a term of sixty-five years after finding no
        mitigating circumstances and that his criminal history was
        aggravating. Although a notice of appeal was timely filed on
        June 9, 2005, there have been various delays in bringing this
        appeal to fruition. It is now finally fully-briefed and ready to be
        decided.



Court of Appeals of Indiana | Memorandum Decision 46A03-1711-PC-2652 | June 15, 2018   Page 4 of 11
      Sturgis v. State, 46A03-0506-CR-00304, WL 5749798, Slip op. at *1-2 (Ind. Ct.

      App. Sept. 30, 2015).


[4]   On April 12, 2013, Sturgis filed a petition for post-conviction relief pro se.

      Appellant’s App. p. 3. Two months later, Sturgis requested a public defender.

      Id. On July 2, 2013, the State Public Defender entered an appearance.1 Id.

      Sturgis’s counsel filed an amendment to petition for post-conviction relief on

      December 5, 2016. Id. at 4. And a second amended petition was filed in April

      2017. Id. at 61. In his petition, Sturgis argued that he was denied effective

      assistance of counsel when his trial counsel failed to object to Sturgis standing

      trial in shackles.


[5]   At the post-conviction hearing held on November 2, 2017, the former

      prosecuting attorney and Sturgis’s trial counsel testified concerning their

      recollection of the use of shackles at trial. Prior to Sturgis’s jury trial, the State

      requested Sturgis to be placed in shackles due to recent news articles from other

      states discussing courtroom violence, and because Sturgis’s case had received

      public attention. His trial counsel testified that he twice objected to the use of

      shackles at trial. Sturgis’s counsel objected to the State’s request at a status

      hearing held on March 24, 2005. Trial counsel also recalled making a second

      objection during a pre-trial conference held in chambers, but there was no




      1
        Sturgis also filed a belated direct appeal, and it was reinstated on January 20, 2015. His post-conviction
      relief hearing was held in abeyance until his direct appeal had been completed and Sturgis notified the court
      that he was ready to proceed with his petition for post-conviction relief. Appellant’s App. p. 4.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1711-PC-2652 | June 15, 2018              Page 5 of 11
      record made of that objection. Both pre-trial objections were overruled.

      Sturgis’s trial counsel did not object during trial.


[6]   During the post-conviction hearing, the court agreed that Sturgis should not

      have been shackled during his jury trial. The post-conviction court also noted

      that the trial court did not provide a specific reason for requiring Sturgis to be

      shackled during his trial. However, the court also found:


              8. Petitioner’s shackles were not visible due to paneling
              surrounding the defense table in the trial courtroom.


              9. Because no forms of restraint were readily visible to the jury
              from the table, none of the federal or state constitutional
              violations alleged by Petitioner are triggered


      Appellant’s App. p. 121. (internal quotations omitted). Therefore, the post-

      conviction court concluded that Sturgis had not established that he was

      prejudiced by trial counsel’s failure to object to the use of shackles at trial, and it

      denied his petition. Sturgis now appeals.


                                     Discussion and Decision
[7]   The post-conviction petitioner bears the burden of establishing grounds for

      relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,

      562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a

      petition for post-conviction relief, the petitioner stands in the position of one

      appealing from a negative judgment. Id. On appeal, we do not reweigh evidence

      nor judge the credibility of a witness; therefore, to prevail, Sturgis must show

      Court of Appeals of Indiana | Memorandum Decision 46A03-1711-PC-2652 | June 15, 2018   Page 6 of 11
      that the evidence as a whole leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Id.


[8]   Where, as here, the post-conviction court made specific findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

      must determine if the court’s findings are sufficient to support its judgment.

      Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

      N.E.2d 962. Although we do not defer to the post-conviction court’s legal

      conclusions, we review the post-conviction court’s factual findings for clear

      error. Id. Accordingly, we will consider only the probative evidence and

      reasonable inferences flowing therefrom that support the post-conviction court’s

      decision. Id.


[9]   A claim of ineffective assistance of trial counsel here requires a showing that:

      (1) Sturgis’s trial counsel’s performance was deficient by falling below an

      objective standard of reasonableness; and (2) that the deficient performance

      prejudiced Sturgis such that “there is a reasonable probability that, but for

      counsel’s unprofessional errors, the result of the proceeding would have been

      different.” Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 694 (1984).

      Failure to satisfy either of the two elements will cause the claim to fail. French v.

      State, 778 N.E.2d 816, 824 (Ind. 2002). And when it is easier to dispose of an

      ineffectiveness claim on the lack of prejudice, then this is the course we should

      follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011).




      Court of Appeals of Indiana | Memorandum Decision 46A03-1711-PC-2652 | June 15, 2018   Page 7 of 11
[10]   Sturgis argues his trial counsel’s performance was deficient when he failed to

       object to the court’s decision to shackle him. Further, Sturgis claims he was

       prejudiced “both because of the inherent prejudice from being shackled and

       because the evidence was contested on whether he was guilty of murder or

       voluntary manslaughter. There is a reasonable probability the result of trial

       would have been different but for counsel’s deficient performance.” Appellant’s

       Br. at 27.

[11]   Before trial, the State made a motion to place Sturgis in shackles due to news

       articles that reported incidents of gun violence in other courtrooms, and

       because Sturgis’s case had received public attention. The State’s only rationale

       for shackling Sturgis was reports of other violent incidents that occurred in

       other states. No specific reason for shackling was provided, contrary to the

       United States Supreme Court’s holding in Deck v. Missouri, 544 U.S. 622, 125 S.

       Ct. 2007, 635 (2005).2 The post-conviction agreed that placing Sturgis in

       shackles was not appropriate. Sturgis had no outbursts or anything of that

       nature in the courtroom, and his only write-up while incarcerated awaiting trial

       was for one incident of “using obscene, vulgar, abusive language.” PCR Tr. pp.

       53–54.




       2
         In Deck, 544 U.S. at 635–36, the court held “such restraints may only be used where the use is justified by
       an essential state interest that is specific to the defendant on trial, and that is supported by specific findings by
       the trial court.” (internal quotations omitted). The failure of the trial court to make a record concerning its
       shackling order is a serious error, but the fact that the shackles were not visible, and the fact that only one
       juror inferred that Sturgis was shackled and did not communicate his suspicion to other jurors, together with
       the overwhelming evidence of Sturgis’s heinous crime, combine to make it a harmless error. See infra.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1711-PC-2652 | June 15, 2018                    Page 8 of 11
[12]   Trial counsel objected to the use of shackles at a recorded pre-trial hearing and

       during an unrecorded pre-trial conference held in chambers. Both objections

       were overruled. There is nothing in the record that would lead us to conclude

       that a third objection made at trial would have been sustained. The record

       indicates that counsel made a tactical decision to not bring attention to the

       shackles during trial since the trial court overruled counsel’s two pre-trial

       objections. See PCR Tr. p. 50.


[13]   Moreover, “an ineffective assistance claim based on failure to object to

       restraints require[s] the restraints to be visible.” Stephenson v. State, 864 N.E.2d

       1022, 1032–1033 (Ind. 2007). “Failure to object to restraints is not substandard

       performance where the jury is unaware of the restraints.” Id. at 1033. However,

       when restraints are “readily visible[,]” failure to object to restraints is

       substandard performance of counsel. See Roche v. Davis, 291 F.3d 473, 482 (7th

       Cir. 2002) (quoting Fountain v. United States, 211 F.3d 429, 435 (7th Cir. 2000)).

       Here, “petitioner’s shackles were not visible.”3 Appellant’s App. p. 121.




       3
         Sturgis sought to admit the affidavit of juror “H.F.” which stated he was aware Sturgis was shackled or
       handcuffed during the trial. See PCR Ex. 6. The post-conviction court erred when it concluded that a juror’s
       affidavit was inadmissible under Indiana Evidence Rule 606(b) because Sturgis was not using the affidavit to
       impermissibly impeach a jury verdict. The affidavit was only being used to establish whether the juror knew
       that Sturgis was in shackles. However, the post-conviction court’s refusal to consider the affidavit is harmless
       because the juror only speculated that Sturgis was in shackles and there is no evidence in the record that the
       jury was aware of the juror’s suspicion. As the post-conviction court stated in its findings, “[e]ven if jury
       affidavits could be used to impeach a verdict, no statements appear in the affidavits that Petitioner’s shackling
       was observed or communicated among the jurors.” Appellants App. p. 121.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1711-PC-2652 | June 15, 2018                Page 9 of 11
       Therefore, counsel’s performance was not deficient because he made two pre-

       trial objections and the shackles were not visible to the jury.


[14]   Even if we were to conclude that Sturgis’s counsel’s failure to object fell “below

       prevailing professional norms, [Sturgis] has failed to establish a reasonable

       probability that any such objection would have prevailed; he therefore has not

       established a reasonable probability that the result [of trial] would have

       changed.” Stephenson, 864 N.E.2d at 1027. In other words, trial counsel’s failure

       to object to the shackles at trial had no impact on the jury’s guilty verdict.


[15]   First, since the evidence against Sturgis is overwhelming, it is unlikely that

       counsel’s failure to object to the use of shackles during trial “deprive[d] [Sturgis]

       of a fair trial, a trial whose result is reliable.” See Strickland, 466 U.S. at 687. The

       fact that Sturgis shot the victim was indisputable. His defense was only that he

       acted in “sudden heat” and was therefore only guilty of voluntary

       manslaughter. However, Sturgis was the only person in the assembled crowd

       who was armed with a gun. Trial Tr. Vol. I, p. 196. Sturgis walked up to the

       victim and shot him in the neck. Id. at 191. The unarmed victim placed his

       hands on his face and Sturgis shot him again at close range, “in the back of the

       head.” Id. at 194.


[16]   In addition, as we noted above, the record indicates that none of the jurors

       actually saw Sturgis in shackles, aside from one juror who inferred that Sturgis was

       in shackles. Actual awareness that the defendant was shackled is required for

       there to be a prejudicial effect. Stephenson, 864 N.E.2d at 1034. cf. Deck, 544 U.S.


       Court of Appeals of Indiana | Memorandum Decision 46A03-1711-PC-2652 | June 15, 2018   Page 10 of 11
       at 622–23 (stating the appearance of the offender in shackles almost inevitably

       adversely affects the jury’s perception of the character of the defendant); Riggins v.

       Nevada, 504 U.S. 127, 142 (1992) (Kennedy, J., concurring in judgment) (noting

       that through control of a defendant’s appearance, the State can exert a “powerful

       influence on the outcome of the trial”). Because the shackles were not visible or

       known to the jury, the jury’s “thumb on [the scale]” in their decision is not

       implicated. Cf. Sochor v. Florida, 504 U.S. 527, 532 (1992) (stating in these ways,

       the use of shackles can be a thumb on death’s side of the scale).


[17]   For all of these reasons, Sturgis has not established that trial counsel’s failure to

       object to the shackles at trial prejudiced him.


                                                 Conclusion
[18]   Counsel’s assistance was not deficient by an objectively reasonable standard

       because the record indicates that counsel did, in fact, twice object to Sturgis

       being shackled before trial, and the shackles were not visible to the jury.

       Moreover, even if we were to conclude that trial counsel’s performance was

       deficient, Sturgis has not established that he was prejudiced by the allegedly

       deficient performance. Thus, trial counsel’s assistance was not ineffective.


[19]   For these reasons, the post-conviction court did not err in denying Sturgis’s

       petition for post-conviction relief.


[20]   Affirmed.


       Riley, J., and May, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1711-PC-2652 | June 15, 2018   Page 11 of 11
