MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                   Apr 20 2020, 11:01 am
court except for the purpose of establishing
                                                                                    CLERK
the defense of res judicata, collateral                                         Indiana Supreme Court
                                                                                   Court of Appeals
estoppel, or the law of the case.                                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony A. Parish,                                       April 20, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-PC-2645
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-1403-PC-31




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020                           Page 1 of 19
[1]   Anthony A. Parish appeals the denial of his petition for post-conviction relief.

      We affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Parish’s direct appeal follow:


              Just after 11:00 p.m. on August 6, 2008, Dennis Salley left his
              home in Fort Wayne to find something to eat. As Salley walked
              toward his restaurant of choice, he decided to stop by his friend
              Lance’s home at the intersection of Suttenfield and Caroline
              Streets. As Salley approached the home, he noticed two groups
              of young males standing in the vicinity. Salley asked them
              whether Lance was there and was told he was not. As Salley
              walked past another group of males, one male asked him, “What
              do you need, old school?” Tr. p. 128. Salley stated, “I’m
              straight.” Tr. p. 128. A member of the group then stated, “Well,
              get your punk a* * off the block then.” Tr. p. 128. Salley turned
              to face the person he believed had said this and responded, “I
              ain’t no punk.” Tr. p. 128. An argument ensued between Salley
              and this person, who Salley later identified as Parish. Parish shot
              Salley in the chest, stomach, and side. Salley turned to run
              away, but Parish pursued him and shot him in the leg and calf.
              Salley stumbled but was able to run another half block to
              someone’s house for help. Salley was subsequently transported
              to Parkview Hospital where he was treated for gunshot wounds
              to the stomach, back, thigh, and calf. As a result of his gunshot
              wounds, Salley lost his right kidney, suffered a severed liver, and
              sustained damage to his right leg.

              Over a span of approximately two and one-half months,
              authorities showed Salley a series of photographic arrays. Salley
              identified several individuals pictured in the arrays as persons
              present at the time of the shooting but did not identify these
              persons to be the shooter. On November 3, 2008, Salley


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 2 of 19
                 identified Parish, who was pictured in a photographic array, as
                 his shooter.

                 Authorities investigating the scene found four shell casings in the
                 vicinity. Subsequent testing demonstrated that the casings were a
                 “40 Smith and Wesson” caliber and had been fired from a
                 semiautomatic weapon rather than from a revolver. Tr. p. 257.
                 Witness Rico Parrish [(“Rico”)][ 1] claimed to have seen Parish in
                 possession of a “glock type weapon,” specifically not a revolver,
                 on the day in question. Tr. p. 195.


      Parish v. State, No. 02A04-0912-CR-739, slip op. at 2-3 (Ind. Ct. App. March 24,

      2010).


[3]   On March 11, 2009, the State charged Parish with Count I, attempted murder;

      Count II, aggravated battery as a class B felony; Count III, carrying a handgun

      without a license as a class C felony; and Count IV, pointing a firearm as a class

      D felony. Id. at 3.


[4]   On July 14 and 15, 2009, the court held a jury trial. Id. The jury found Parish

      guilty as charged, and the court entered a judgment of conviction on each

      count. Id. at 4. At an August 7, 2009 sentencing hearing, the court vacated

      Parish’s conviction in Count II and sentenced him to concurrent sentences of

      fifty years in the Department of Correction for Count I, eight years for Count

      III, and three years for Count IV. Id. On direct appeal, Parish challenged his

      attempted murder conviction by claiming that the trial court improperly




      1
          The court noted Parish and Rico were not related. See Parish, slip op. at 3 n.4.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020          Page 3 of 19
      instructed the jury and that there was insufficient evidence to support his

      conviction. Id. at 2. This Court affirmed. Id.


[5]   In March 2011, Parish filed a petition for post-conviction relief and withdrew

      the petition in 2014. Parish filed a petition for post-conviction relief on

      February 27, 2014, and amended petitions on April 11, 2018, June 12, 2018,

      and January 3, 2019.


[6]   On February 15, 2019, the court held a hearing. Parish’s trial counsel testified

      and described his general preparation for a trial in a major felony case to

      include collecting and reviewing discovery, meeting with the client, reviewing

      discovery with the client, obtaining a view of where the client wants to go with

      the case, and deposing witnesses. He testified that he represented Parish in two

      cases, the case involving the attempted murder of Salley and a murder case.


[7]   The court admitted a letter from Parish’s trial counsel to Parish dated June 22,

      2009, which stated:


              Today, I was scheduled to take a number of depositions on the
              Attempt Murder case. Mr. Salley, the alleged victim, has moved
              from Fort Wayne and his deposition is to be rescheduled as a
              result of his not getting back here in time for the deposition
              today. Two of the other people on the State’s Witness List,
              Arrington and Lee, are now in prison. While they can be
              brought back to be deposed, the State now tells me they do not
              intend on calling them as witnesses. Unless you have some
              interest in them, I would not be inclined to depose them.


      Exhibits Volume I at 9.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 4 of 19
[8]   When asked about Rico, Parish’s trial counsel stated that Rico had significant

      involvement in the cases and was a friend of Parish, a witness against Parish in

      the attempted murder case, and a witness in the murder case. When asked if he

      recalled if he had considered looking for evidence to impeach Rico, he stated he

      deposed Rico but did not recall “seeking out folks or having folks approach me

      with opinions about his character for honesty or attacking him in that way.”

      Post-Conviction Transcript Volume II at 7. He testified that it was his normal

      practice to read everything the State provided in discovery and he did not recall

      any prior inconsistent statements from Rico in the murder case. When asked if

      he recalled Rico being charged with aggravated battery and criminal

      recklessness in October of 2008, he answered: “Not specifically, but I – my

      general recollection of [Rico] is that he, over the years, has had numerous run-

      ins with the legal system where he’s been a defendant. That wouldn’t surprise

      me to learn.” Id. at 8. He indicated that he did not remember the charges being

      dismissed three days after they were filed and that he did not recall the name

      Robert Lee. When asked why he did not depose Lee, he answered: “Well, just

      inferring from [the June 22, 2009] letter, if that’s how I left it in the letter, if

      [Parish] didn’t suggest to follow up with that then that’s probably why, because

      I suggest in the letter I wasn’t inclined to pursue them.” Id. at 12. He testified

      that he did not consider consulting with or presenting testimony from an

      eyewitness identification expert.


[9]   The court admitted an affidavit of Lee dated June 2018 which asserted that he

      and Parish were talking to a woman named Nia and another woman when


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 5 of 19
       Salley approached, Parish “was out there when Salley got shot, but [he] did not

       shoot Salley,” Salley was not close to Parish when he was shot, the police

       questioned Rico, and Rico later told him in a conversation in 2011 that “he had

       to ‘throw Anthony Parish under the bus’ to get himself out of some problems he

       was having with the police.” Exhibits Volume V at 132-133. He also stated

       Rico was his distant cousin, was “one of the most dishonest people” he had

       ever known, and had a reputation for “getting arrested and then falsely

       incriminating somebody else in order to get himself out of trouble.” Id. at 133.


[10]   The court admitted an affidavit of Rico in which he asserted his testimony was

       “not entirely truthful,” and he “was coerced, threatened, and manipulated by

       the police to testify to a version of events which they found acceptable.”

       Exhibits Volume VI at 3. He also asserted that he was arrested for aggravated

       battery, battery, and criminal recklessness on October 14, 2008, Detective Chad

       Wagner and Officer Christopher Hoffman questioned him, Detective Wagner

       told him the charges against him would be dismissed if he agreed to testify

       against Parish, and he agreed to accept the offer. He also stated that Detective

       Lorna Russell later told him that the charges would be refiled if he “did not tell

       her what she wanted to hear.” Id. at 4. With respect to the August 6, 2008

       offense, Rico asserted:


               9. On August 6, 2008, I was with [Parish], from around 9:00
               a.m. or 10:00 until around 11:00 a.m. or 12:00 p.m. We were in
               a large, white, car with Gabrielle. Gabrielle’s last name is
               Carswell. Gabrielle’s mother’s last name is Holley. When I
               testified that his name was Gabrielle Holley, I must have been


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 6 of 19
               thinking of his mother. Gabrielle was driving, [Parish] was
               sitting in the front passenger seat, and I was in the back seat.

               10. There was a gun sitting on the center console of Gabrielle’s
               car, in the front seat. I do not know who the gun belonged to. I
               did not see Gabrielle or [Parish] touch the gun. I did not hear
               Gabrielle or [Parish] claim ownership of the gun. I do know that
               Gabrielle had a license to carry a handgun at the time.


       Id. at 4. The court admitted affidavits of Detectives Wagner and Russell

       denying the assertions in Rico’s affidavit.


[11]   The court admitted affidavits from multiple individuals indicating that Rico had

       a reputation for being dishonest and making false accusations. Parish

       introduced and the court admitted a report from Deryn Strange, a professor of

       psychology, discussing how memory works and the general problem of

       mistaken identifications and highlighting research findings relating to certain

       factors. On November 5, 2019, the court denied Parish’s petition in a thirty-

       page order.


                                                    Discussion

[12]   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

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 7 of 19
       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,

       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.


[13]   Parish argues his trial counsel was ineffective for failing to: (A) interview,

       depose, or present the testimony of Lee; (B) present reputation and opinion

       evidence showing Rico was not credible; (C) present expert testimony regarding

       the inherent unreliability of eyewitness identifications; and (D) present evidence

       regarding the favorable treatment Rico received from the State in an unrelated

       case.


[14]   To prevail on a claim of ineffective assistance of counsel a petitioner must

       demonstrate both that his counsel’s performance was deficient and that the

       petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

       S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. 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.

       Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 8 of 19
       will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.


[15]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998).


       A. Lee


[16]   Generally, deciding which witnesses to call is the “epitome of a strategic

       decision,” Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001), cert. denied, 535

       U.S. 1019, 122 S. Ct. 1610 (2002), and such decisions are insufficient to




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 9 of 19
       establish ineffective representation. See Kelly v. State, 452 N.E.2d 907, 910 (Ind.

       1983). The Indiana Supreme Court has held:


               With the benefit of hindsight, a defendant can always point to
               some rock left unturned to argue counsel should have
               investigated further. The benchmark for judging any claim of
               ineffectiveness must be whether counsel’s conduct so
               undermined the proper functioning of the adversarial process that
               it deprived the defendant of a fair trial. Strickland, 466 U.S. at
               686, 104 S. Ct. 2052. Strickland does not require counsel to
               investigate every conceivable line of mitigating evidence no
               matter how unlikely the effort would be to assist the defendant at
               sentencing. Wiggins v. Smith, 539 U.S. 510, 533, 123 S. Ct. 2527,
               156 L.Ed.2d 471 (2003). This would interfere with the
               constitutionally protected independence of counsel at the heart of
               Strickland. Id. Rather, we review a particular decision not to
               investigate by looking at whether counsel’s action was reasonable
               in light of all the circumstances. Id. at 521-22, 123 S. Ct. 2527.
               In other words, counsel has a duty to make a reasonable
               investigation or to make a reasonable decision that the particular
               investigation is unnecessary. Id. at 521, 123 S. Ct. 2527.


       Ritchie v. State, 875 N.E.2d 706, 719-720 (Ind. 2007), reh’g denied.


[17]   In this case, the post-conviction court’s order states:


               7. Detective Craig Gregory of the Fort Wayne Police testified at
               trial that he attempted to interview witness Robert Lee, but “[h]e
               wouldn’t talk to us.” This testimony was consistent with
               Detective Gregory’s statement on page 6 of a police report dated
               August 8, 2008, admitted as Petitioner’s Exhibit 26 at the post-
               conviction hearing: “I first went in to interview ROBERT
               DESEAN LEE. MR. LEE immediately advised that he wanted
               an attorney. I advised MR. LEE that he was only a witness at
               this point. MR. LEE stated that he was not speaking to anyone

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 10 of 19
        without an attorney present.” [Trial counsel] did not
        subsequently try to interview witness Lee or to present his
        testimony at trial. At the post-conviction hearing, [trial counsel]
        did not remember anything about Lee.

                                              *****

        13. . . . . On the supposition that [trial counsel] should have
        tried to interview Robert Lee notwithstanding Lee’s refusal to
        talk to police, Petitioner has not shown a reasonable probability
        that the outcome of his trial would have been affected, for the
        following reasons.

        14. First, Lee’s affidavit does not even state that he would have
        talked to [trial counsel] (unlike the police) before trial if asked, but
        only that he would have made certain statements at trial. To
        form a reasonable professional judgment that Lee should be
        called to testify for the defense at trial, [trial counsel] would have
        needed at least some reason to believe, before trial, that Lee’s
        testimony would be available, credible, and favorable to the
        defense. Lee’s affidavit gives no indication of any way in which
        [trial counsel] could have made any of those determinations,
        much less all of them, before trial. From the fact that Lee had
        refused to talk to the police, although it cannot be definitely
        inferred that Lee would also have refused to talk to [trial
        counsel], it also cannot be definitely inferred that Lee would have
        agreed to talk to [Parish’s trial counsel], and no evidence
        establishes that he would have agreed to do so. For this reason,
        Lee’s affidavit has no tendency to establish that the outcome at
        trial would have been affected by Lee’s statements, for those
        statements would not have been presented at trial if [trial
        counsel] had not been able to evaluate them before trial.

        15. Even on the questionable supposition that Lee really meant
        to say he would have talked to [trial counsel] before trial and
        testified at trial, serious difficulties remain with Petitioner’s claim
        that testimony from Lee would have affected the outcome of the
        trial. By submitting Lee’s account only in the form of an

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 11 of 19
        affidavit, Petitioner has failed to give the Court an opportunity to
        observe the effect that cross-examination would likely have had
        on Lee’s testimony if presented at trial. Among the questions
        that could have been asked on cross-examination, not answered
        in the affidavit, are these: Did you see who shot Dennis Salley?
        If so, why didn’t you say so? If not, why didn’t you say you did
        not see who shot him? Why did you refuse to talk to the police?
        Aren’t you a friend of Anthony Parish? How close was Anthony
        Parish to the corner of Caroline and Suttenfield when the
        shooting took place on Suttenfield? How did you happen to
        remember that these events took place at around 11:30 p.m.?
        Did you see who, if anyone, was talking to Dennis Salley at the
        time when he was shot? Did you see anyone there whom Salley
        could have mistaken for Anthony Parish? Given your extremely
        poor opinion of Rico Parrish’s character for truthfulness, did you
        have any reason to believe he was telling the truth when he said
        he had just gotten up at 11:00 or 12:00? Were you keeping Rico
        Parrish under constant surveillance from the time you saw him at
        11:00 a.m. or 12:00 p.m. until the shooting in the late evening
        hours? If so, why? If not, how do you know where he was
        during that entire time? Petitioner has not even shown that Lee
        could have answered such questions to [trial counsel’s]
        satisfaction if interviewed, so as to give reasonable assurance to
        [trial counsel] that Lee’s testimony would stand up under cross-
        examination; much less has he shown that Lee’s testimony
        actually would have been found credible under cross-
        examination at trial.

        16. Finally, in view of the very long interval between the events
        described and the execution of Lee’s affidavit, there appears to be
        a very significant possibility that the affidavit has been affected by
        certain factors specified by Dr. Strange as affecting memory,
        specifically the decline of memory over time and the influence of
        post-event information creating inaccuracies in memory, which is
        a “reconstructive process prone to error.” The most glaring
        example of post-event information is Lee’s assertion that Rico
        Parrish made an admission to him in 2011, but the influence of

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 12 of 19
               post-event information appears to be discernible in other respects
               as well. Lee’s claimed memory of the events of August 6, 2008,
               is highly detailed, and includes statements that appear to have
               been likely formulated after the fact in response to knowledge
               acquired from the evidence at trial. Notably, Lee’s statement
               that Petitioner “did not swear” at Salley can be best understood
               as a later-devised response to Salley’s testimony at trial that a
               person later identified as Petitioner had said, “get your punk a**
               off the block”. The question whether Petitioner did swear at
               Salley would not appear to have arisen if not for this testimony,
               and Lee states no way in which he could have found out about
               the “punk a**” language before trial if he did not hear Petitioner
               using such language. Likewise, Lee’s statements that Rico
               Parrish said he had just gotten up at 11:00 or 12:00, and that Rico
               Parrish hung around the neighborhood the rest of the day until
               the time of the shooting, can best be understood as later-devised
               responses to Rico Parrish’s testimony that he observed Petitioner
               in a car with a gun sometime before 11:30 a.m. or 12:00 noon on
               the day of the offense, and that he did not see Petitioner again on
               that day. In view of these fairly obvious later-devised
               “memories,” in turn, serious questions arise as to whether other
               aspects of Lee’s claimed memories, such as that Petitioner was
               not even close to the place where Salley testified that he
               confronted him, were also later-devised responses to information
               derived from testimony at trial. The Court is not convinced that
               Lee would actually have presented statements such as these in his
               testimony at trial, if given – much less in an interview with [trial
               counsel] before trial, in which [trial counsel] would have needed
               to evaluate the credibility of Lee’s possible testimony.


       Appellant’s Appendix Volume III at 129, 145-148 (citations and footnotes

       omitted).


[18]   The record reveals that Lee asserted in his affidavit dated almost ten years after

       the incident that he and Parish were talking to two women when Salley

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 13 of 19
approached. However, the record does not reveal that Parish told his trial

counsel he had been engaged in a conversation with Lee at that time or that Lee

could support his defense. Trial counsel sent a letter to Parish indicating the

State did not intend on calling Lee as a witness, and “[u]nless you have some

interest in them, I would not be inclined to depose them.” Exhibits Volume I at

9. Trial counsel testified he did not recall Parish ever telling him he wanted Lee

to be called as a witness. Under these circumstances, we cannot say that trial

counsel’s performance was deficient. While Lee asserted in his affidavit that he

would have testified at trial, the record does not demonstrate that Lee would

have spoken with trial counsel if he had been contacted prior to the trial.

Further, at trial, when asked if he testified that Parish shot him, Salley

answered: “I’m for sure. Yeah, there’s no question in my mind, man.” Id. at

152. When shown a photo array and asked if he recognized the exhibit, Salley

stated: “Yeah. This is the guy who shot me right here. This is this Anthony

Parish kid.” Id. at 161. When asked if he immediately recognized Parish,

Salley answered: “Immediately.” Id. at 162. He indicated that he remembered

six photo arrays being shown to him and did not identify the shooter until the

sixth photo array. We cannot say the evidence as a whole unerringly and

unmistakably leads to a conclusion opposite that reached by the post-conviction

court.




B. Reputation and Opinion Evidence Regarding Rico



Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 14 of 19
[19]   The post-conviction court’s order states:


               18. The testimony of Rico Parrish, regarding the gun he
               observed in the car in which he and Petitioner were riding earlier
               in the day, would appear to have been admissible to show that
               Petitioner had access to a weapon of the type used in the
               shooting. Nevertheless, the probative value of this evidence of a
               vaguely described, apparently common type of handgun in a car
               near Petitioner (not touched or claimed by him), in relation to the
               issue of whether Petitioner was the one who later shot Dennis
               Salley, would appear to have been quite slight. The outcome at
               trial surely would have been the same even if this testimony had
               not been presented at all. A fortiori, had Rico Parrish’s credibility
               been impeached by one or more of the means now proposed by
               Petitioner (i.e., reputation and opinion evidence of poor
               character for truthfulness, and supposed favorable treatment from
               the prosecution), there is no probability that the outcome at trial
               would have been different.


       Appellant’s Appendix Volume III at 149 (citations omitted).


[20]   On cross-examination, trial counsel testified that he did not recall Parish or

       anyone approaching him about a possibility of impeaching Rico using opinion

       or reputation evidence about his character for truthfulness. Parish

       acknowledges that “[a]s the post conviction court explicitly found, Rico’s

       testimony had minimal probative value.” Appellant’s Brief at 28. He also

       asserts that, while Rico testified he saw a gun in a car in which he, Parish, and a

       third individual were riding, he did not testify that Parish touched the weapon

       or claimed it belonged to him. Further, as pointed out by the State, Rico

       testified on cross-examination that he was sure Parish had his arm in a sling

       that day, while trial counsel elicited testimony from Salley on cross-
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 15 of 19
       examination that he did not remember anyone wearing a cast or something

       similar that night and later emphasized this during closing argument. (Ex. I

       181-182, 186-187; Ex. II 54-55) We cannot say reversal is warranted on this

       basis.


       C. Expert Testimony Regarding Eyewitness Identifications


[21]   The post-conviction court’s order discussed Dr. Strange’s report and stated in

       part:


                For the same reason, statistics regarding percentages of
                identifications that are confident but mistaken in experimental
                groups would have had no tendency to establish that Dennis
                Salley’s confident identification of [Parish] as the perpetrator
                was, or might have been, mistaken. At most, expert testimony
                could have established the distinct possibility that an eyewitness
                identification may be confident but mistaken under at least some
                conditions – exactly the same possibility that [trial counsel]
                presented at length to the jury in cross-examination and closing
                argument. [Parish] has not shown that expert testimony about
                the possibility of a confident but mistaken eyewitness
                identification would have been any more convincing to the jury
                than were [trial counsel’s] cross-examination and argument.


       Appellant’s Appendix Volume III at 153-154.


[22]   The report of Dr. Strange stated: “I am not commenting on the credibility of

       any witness nor expressing an opinion about the reliability of any identification

       in this case.” Exhibits Volume V at 230. Further, Ind. Evidence Rule 704(b)

       provides that “[w]itnesses may not testify to opinions concerning intent, guilt,

       or innocence in a criminal case; the truth or falsity of allegations; whether a
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 16 of 19
witness has testified truthfully; or legal conclusions.” While Dr. Strange’s

report discussed factors that influence the accuracy of identifications such as

lighting and distance, stress, time estimation, exposure duration, retention

interval, and post-event information, the record reveals trial counsel extensively

cross-examined Salley regarding a number of these factors and reiterated the

possibility Salley was mistaken in his identification. Specifically, trial counsel

questioned Salley about the lighting conditions, and Salley indicated on cross-

examination that he was under the effects of medication when he was shown a

lot of the photo arrays, he never saw the gun that caused his injuries, he was

startled when he was shot, the person could have been a little shorter or a little

taller than him, he did not know if there was anything distinctive about the

shooter, it happened fast, and he was running for his life. During closing

argument, trial counsel argued Salley was mistaken and emphasized his limited

opportunity to observe the shooter. We also note that Parish’s trial counsel

relied upon Rico’s testimony at trial. As mentioned above, Rico testified on

cross-examination that he was sure Parish had his arm in a sling that day, while

trial counsel elicited testimony from Salley on cross-examination that he did not

remember anyone wearing a cast or something similar that night and later

emphasized this during closing argument. We cannot say the evidence as a

whole unerringly and unmistakably leads to a conclusion opposite that reached

by the post-conviction court. See Harrison v. State, 707 N.E.2d 767, 779 (Ind.

1999) (holding that it was at best wholly speculative that a request for the

appointment of an expert witness to testify about eyewitness identifications

would have been granted or that the expert testimony would have affected the
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 17 of 19
       outcome of the trial and concluding that trial counsel’s failure to request an

       eyewitness testimony expert did not overcome the strong presumption of

       counsel’s competence), reh’g denied, cert. denied, 529 U.S. 1088, 120 S. Ct. 1722

       (2000).


       D. Evidence Regarding Favorable Treatment Received by Rico


[23]   The post-conviction court’s order states:


               Aside from the affidavit of Rico Parrish, which the Court finds
               unworthy of credit, no evidence suggests that Rico Parrish
               received favorable treatment from the prosecution in any case in
               exchange for testimony in cause number 02D04-0901-MR-3.
               Instead of credible evidence, Petitioner presents only unfounded
               conjecture to the effect that Rico Parrish may have feared he
               would be charged if he did not give testimony favorable to the
               prosecution. The only evidence on this point which the Court
               finds to be credible, the affidavits of Lorna Russell and Chad
               Wagner, provides no support for the claim that Rico Parrish
               feared he would be charged if he did not say what the police or
               the State wished him to say.


       Appellant’s Appendix Volume III at 143 (citations omitted).


[24]   The record reveals that the State charged Rico with aggravated battery, battery,

       and criminal recklessness on October 14, 2008, under cause number 02D04-

       0810-MC-2350. That same day, the trial court found probable cause to hold

       Rico for seventy-two hours. Three days later on October 17, 2008, the court

       dismissed the charges against Rico on the State’s motion, which was more than

       four months before Parish was charged in the underlying case. Rico asserted in


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 18 of 19
       his affidavit that Detective Wagner told him that the charges would be

       dismissed if he agreed to testify against Parish and that Detective Russell said

       the charges would be refiled if he did not tell her what she wanted to hear.

       However, Detective Wagner stated in an affidavit that he interviewed Rico in

       October 2008 and there was no discussion of the shooting incident occurring on

       August 6, 2008, and that he did not tell Rico at any time that any charges

       would be dismissed if he agreed to testify against Parish in regard to any matter

       nor that any charges would be dismissed only if he told him what he wanted to

       hear. Further, Detective Russell asserted in her affidavit that she interviewed

       Rico in October 2008 in connection with the murder investigation that led to

       the conviction of Parish in cause number 02D04-0901-MR-3 and that she did

       not discuss any actual or potential charges against Rico and did not say that any

       charges would be filed or refiled if he did not tell her what she wanted to hear.

       We cannot say that reversal is warranted.


[25]   For the foregoing reasons, we affirm the denial of Parish’s petition for post-

       conviction relief.


[26]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020   Page 19 of 19
