MEMORANDUM DECISION
                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                    Jun 09 2016, 6:07 am
this Memorandum Decision shall not be
                                                               CLERK
regarded as precedent or cited before any                  Indiana Supreme Court
                                                              Court of Appeals
court except for the purpose of establishing                    and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew McKinnon,                                        June 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1509-PC-1394
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1304-PC-9



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 71A04-1509-PC-1394 | June 9, 2016    Page 1 of 9
[1]   Matthew McKinnon appeals from the denial of his petition for post-conviction

      relief (PCR petition). On appeal, he asserts that the post-conviction court erred

      in rejecting his claim of ineffective assistance of trial counsel.


[2]   We affirm.


                                       Facts & Procedural History


[3]   The facts underlying McKinnon’s conviction were set forth by this court in an

      unpublished memorandum decision on direct appeal as follows: “On

      November 24, 2004, several witnesses saw McKinnon shoot Brian Pope, Jr. at a

      house on Corby Street in South Bend. Pope died as a result of the shooting.”

      McKinnon v. State, 71A03-0602-CR-70, slip op. at 2 (Ind. Ct. App. July 27,

      2006). The State charged McKinnon with murder on December 1, 2004, and a

      public defender was appointed to represent him.


[4]   A three-day jury trial commenced on October 11, 2005. McKinnon’s trial

      counsel elected not to give an opening statement. During the State’s case-in-

      chief, two witnesses identified McKinnon as the shooter and a third witness

      testified that McKinnon told him while in jail together that he killed the victim.

      McKinnon’s defense was comprised of testimony from one witness who

      claimed McKinnon was not present at the time of the shooting. McKinnon

      ultimately chose not to testify as to his whereabouts. During closing argument,

      McKinnon’s trial counsel argued that the State’s witnesses were lying, pointed

      out inconsistencies in the evidence, and relied on the testimony that McKinnon

      was not present. The jury found McKinnon guilty as charged. The trial court

      Court of Appeals of Indiana | Memorandum Decision 71A04-1509-PC-1394 | June 9, 2016   Page 2 of 9
      subsequently entered judgment of conviction and sentenced him to fifty-seven

      years imprisonment. In a direct appeal to this court, McKinnon argued only

      that the trial court abused its discretion in denying his motion for mistrial. This

      court rejected McKinnon’s argument and thereby affirmed his conviction and

      sentence.


[5]   In July 2007 McKinnon filed a PCR petition, which was dismissed without

      prejudice in April 2009. On April 24, 2013, McKinnon filed a second PCR

      petition, which he amended on December 1, 2014. The PCR court held an

      evidentiary hearing on March 2, 2015, at which McKinnon’s trial counsel

      testified.


[6]   Evidence presented at the post-conviction hearing indicated that trial counsel

      met with McKinnon six times prior to trial. Trial counsel maintained that he

      reviewed discovery and discussed defense strategies with McKinnon. Trial

      counsel explained that although several witnesses identified McKinnon as the

      shooter, McKinnon insisted that he was not present at the time of the shooting.

      McKinnon claimed he was with family. As a result, trial counsel filed a belated

      notice of alibi on October 5, 2005, less than a week before his scheduled jury

      trial. In the notice, trial counsel named McKinnon’s wife, his mother, and his

      stepfather as alibi witnesses. Trial counsel testified that he could not secure

      these witnesses and that he informed McKinnon of the difficulty he was

      encountering with respect to presenting an alibi defense. Trial counsel stated

      that he believed a claim of self-defense or sudden heat would have been more

      viable if McKinnon had been present at the time of the shooting. Trial counsel

      Court of Appeals of Indiana | Memorandum Decision 71A04-1509-PC-1394 | June 9, 2016   Page 3 of 9
      testified that he explained the alternate defense theories to McKinnon, but

      McKinnon kept insisting that he was not present at the time of the shooting.


[7]   In light of McKinnon’s asserted alibi defense, the State filed a motion in limine

      requesting, in part, that McKinnon be precluded from eliciting the fact that the

      victim had a gun in his pocket at the time of the shooting. The trial court

      granted the State’s motion in limine in this respect, but indicated that such

      evidence could become relevant depending on evidence produced and

      McKinnon’s theory of defense at trial. The trial court specifically noted that

      such evidence could become relevant if McKinnon presented a claim of self-

      defense. Trial counsel testified that he did not ask the court to reconsider its

      ruling in this regard because the evidence was in conflict with the asserted

      defense.


[8]   On August 20, 2015, the post-conviction court issued its findings of fact and

      conclusions of law denying McKinnon the relief requested. Additional facts

      will be provided where necessary.


                                          Discussion & Decision


[9]   In a post-conviction proceeding, the petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Bethea v. State, 983

      N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

      order to prevail, the petitioner must demonstrate that the evidence as a whole

      Court of Appeals of Indiana | Memorandum Decision 71A04-1509-PC-1394 | June 9, 2016   Page 4 of 9
       leads unerringly and unmistakably to a conclusion opposite the post-conviction

       court’s conclusion. Id. Although we do not defer to a post-conviction court’s

       legal conclusions, we will reverse its findings and judgment only upon a

       showing of clear error, i.e., “that which leaves us with a definite and firm

       conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

       N.E.2d 102, 106 (Ind. 2000)).


[10]   A petitioner will prevail on a claim of ineffective assistance of counsel only

       upon a showing that counsel’s performance fell below an objective standard of

       reasonableness and that the deficient performance prejudiced the petitioner. Id.

       at 1138. To satisfy the first element, the petitioner must demonstrate deficient

       performance, which is “representation that fell below an objective standard of

       reasonableness, committing errors so serious that the defendant did not have

       the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting McCary v.

       State, 761 N.E.2d 389, 392 (Ind. 2002)).


[11]   To satisfy the second element, the petitioner must show prejudice, which is “a

       reasonable probability that, but for counsel’s errors, the result of the proceeding

       would have been different.” Id. at 1139. “A reasonable probability is one that

       is sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

       N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,

       694 (1984)). Because a petitioner must prove both deficient performance and

       prejudice in order to prevail on a claim of ineffective assistance of counsel, the

       failure to prove either element defeats such a claim. See Young v. State, 746

       N.E.2d 920, 927 (Ind. 2001) (holding that because the two elements of

       Court of Appeals of Indiana | Memorandum Decision 71A04-1509-PC-1394 | June 9, 2016   Page 5 of 9
       Strickland are separate and independent inquiries, the court may dispose of the

       claim on the ground of lack of sufficient prejudice if it is easier).


[12]   McKinnon argues that his trial counsel was ineffective for failing to adequately

       investigate and that such failure prevented him from presenting a “full-throated

       defense” to the jury. Appellant’s Brief at 9. Specifically, he faults his trial

       counsel for meeting with him only six times prior to trial and failing to hire an

       investigator or take any depositions.


[13]   The post-conviction court concluded that McKinnon presented “no evidence as

       to what [his trial counsel] should have done and how what he either did do or

       did not do on [McKinnon]’s behalf would likely have caused a different result

       at trial.” Appellant’s Appendix at 117. We agree with the post-conviction court.


[14]   We have before held that “establishing failure to investigate as a ground for

       ineffective assistance of counsel requires going beyond the trial record to show

       what investigation, if undertaken, would have produced.” McKnight v. State, 1

       N.E.3d 193, 201 (Ind. Ct. App. 2013) (citing Woods v. State, 701 N.E.2d 1208,

       1214 (Ind. 1998), cert. denied (1999)). “This is necessary because success on the

       prejudice prong of an ineffectiveness claim requires a showing of a reasonable

       probability of affecting the result.” Id. (quoting Woods, 701 N.E.2d at 1214).

       Here, McKinnon merely alleged that his trial counsel was ineffective by failing

       to investigate. McKinnon did not indicate what further investigation would

       have produced. McKinnon has not established any prejudice resulting from

       counsel’s performance. Moreover, as noted by this court on direct appeal, the


       Court of Appeals of Indiana | Memorandum Decision 71A04-1509-PC-1394 | June 9, 2016   Page 6 of 9
       evidence supporting McKinnon’s conviction was “overwhelming.” 1 McKinnon,

       slip. op. at 8.


[15]   Contrary to McKinnon’s claim, this case is unlike McCarty v. State, 802 N.E.2d

       959 (Ind. Ct. App. 2004). In McCarty, trial counsel met with his client only

       once. This court noted, “it seems obvious that evidence of only a single

       meeting between counsel and client in a multiple-felony case would alert a

       reviewing court to the possibility of inadequate representation.” Id. at 964.

       Here, McKinnon’s trial counsel met with McKinnon six times, discussed the

       evidence against him, and reviewed possible defense strategies. These

       circumstances are distinct from those in McCarty and do not immediately

       “alert” us that counsel provided deficient performance. McKinnon has not

       established that his counsel rendered deficient performance in this regard.


[16]   McKinnon also argues that his trial counsel was ineffective when, after

       abandoning2 the alibi defense at trial, he failed to assert a claim of self-defense

       or sudden heat.3 Specifically, McKinnon argues that trial counsel should have

       requested reconsideration of the trial court’s grant of the State’s motion in

       limine, which precluded McKinnon from presenting evidence that the victim




       1
        Two witnesses testified that McKinnon was the shooter and a third witness testified that while in jail with
       McKinnon, McKinnon admitted to shooting the victim.
       2
        We note that the record does not support McKinnon’s claim that trial counsel abandoned the alibi defense.
       The sole witness in his defense testified that he did not see McKinnon at the scene where the shooting
       occurred. During closing argument, counsel pointed out this evidence for the jury.
       3
         The existence of circumstances demonstrating that a person who knowingly or intentionally kills another
       human being while acting under “sudden heat” commits voluntary manslaughter. See Ind. Code § 35-42-1-3.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1509-PC-1394 | June 9, 2016                Page 7 of 9
       had a handgun in his pocket when he was shot. McKinnon maintains that this

       evidence would have supported the alternate defenses.


[17]   The post-conviction court concluded that trial counsel was not ineffective for

       not pursing a self-defense claim or a voluntary manslaughter defense. The post-

       conviction court noted that trial counsel’s efforts to challenge the sufficiency of

       the evidence and to establish reasonable doubt were the best defenses he could

       present given McKinnon’s insistence that he was not present at the time of the

       shooting.


[18]   We find no error in the post-conviction court’s conclusion in this regard.

       McKinnon acknowledges that his trial counsel discussed the difficulty of

       pursuing an alibi defense. During the post-conviction hearing, McKinnon’s

       trial counsel testified that he also discussed with McKinnon the viability of

       presenting a claim of self-defense and/or mitigating factors in an effort to show

       that McKinnon acted in sudden heat. Trial counsel further testified that he was

       not going to force petitioner to pursue those defenses given that McKinnon was

       clearly asserting a different defense.4


[19]   Trial counsel’s decision to pursue only an alibi defense does not amount to

       deficient performance. By insisting that he was not present at the time of the

       shooting, McKinnon essentially stymied trial counsel’s defense strategy.




       4
         In its order, the trial court credited trial counsel’s testimony and discounted McKinnon’s testimony that
       alternate defense theories were never discussed.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1509-PC-1394 | June 9, 2016                 Page 8 of 9
       McKinnon’s insistence that he was not present provided no basis for a claim

       that he acted in self-defense or under sudden heat.


[20]   In turn, counsel’s performance was not deficient in failing to ask the trial court

       to reconsider its ruling on the admissibility of evidence regarding the presence

       of a handgun in the victim’s pocket at the time of the shooting. Trial counsel

       testified that he made this decision because he believed McKinnon was going to

       testify as to his whereabouts. When McKinnon later chose not to testify,

       counsel believed it was too late to present evidence pertaining to self-defense or

       voluntary manslaughter. Trial counsel therefore proceeded by calling a witness

       who testified that McKinnon was not present when the victim was killed.

       McKinnon has not established that trial counsel’s decision was unreasonable

       under the circumstances. See Curtis v. State, 905 N.E.2d 410, 414 (Ind. Ct. App.

       2009) (“[c]ounsel is afforded considerable discretion in choosing strategy and

       tactics, and we will accord those decisions deference”), trans. denied.


[21]   In summary, McKinnon has failed to establish that he received ineffective

       assistance of trial counsel.


[22]   Judgment affirmed.


[23]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1509-PC-1394 | June 9, 2016   Page 9 of 9
