MEMORANDUM DECISION                                               FILED
                                                             Jul 29 2016, 9:41 am
Pursuant to Ind. Appellate Rule 65(D),                            CLERK
this Memorandum Decision shall not be                         Indiana Supreme Court
                                                                 Court of Appeals
regarded as precedent or cited before any                          and Tax Court


court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
James A. Edgar                                            Gregory F. Zoeller
J. Edgar Law Offices, Prof. Corp.                         Attorney General of Indiana
Indianapolis, Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel Snell,                                             July 29, 2016
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          49A04-1511-PC-1891
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Kurt M. Eisgruber,
Appellee-Respondent                                       Judge

                                                          The Honorable Steven J. Rubick,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G01-0608-PC-151692



Crone, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016    Page 1 of 9
                                             Case Summary
[1]   Daniel Snell was convicted of two counts of murder and sentenced to 100 years

      of imprisonment. His convictions and sentence were upheld on direct appeal.

      Snell filed a petition for postconviction relief (“PCR”) alleging that his trial

      counsel was ineffective in failing to investigate alleged third-party suspects,

      failing to timely discover an alibi witness, opening the door to allegedly harmful

      evidence, and failing to inform him of an alleged plea offer from the State. The

      postconviction court denied Snell’s petition.


[2]   On appeal, Snell contends that the postconviction court’s ruling is clearly

      erroneous. Finding no error, we affirm.


                                  Facts and Procedural History
[3]   In Snell’s direct appeal, another panel of this Court recited the following facts:

              On the night of August 2, 2006, Snell, Charles Richardson, and
              two women were hanging out in the driveway of a residence on
              North Webster in Indianapolis, Indiana. Antoine Beech and Eric
              Gray stopped by the residence to use some cocaine they had
              bought. Beech and Gray saw that Snell had a handgun in his
              waistband and thought he was acting “weird” and “belligerent.”
              Transcript at 76, 159. After the two women went inside the
              residence, Allan Westmoreland and Latasha Pettis approached in
              a vehicle. Richardson hailed Westmoreland, and Westmoreland
              parked the car. At some point, Gray heard Richardson say,
              “there go the neighborhood snitch.” Id. at 163.


              Richardson and Beech talked to Westmoreland, and then Beech
              went to the rear of another vehicle to use his cocaine. As Beech
              and Gray were using their cocaine, they saw Snell approach
      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016   Page 2 of 9
        Westmoreland’s vehicle by sneaking through some bushes. Snell
        then reached inside the vehicle and started shooting
        Westmoreland. Snell went to the vehicle’s passenger side,
        dragged Pettis out of the vehicle as she screamed, and shot her.
        Snell then went back to the driver’s side of the vehicle, reloaded
        his gun, and shot Westmoreland again.


        The first officer on the scene discovered that Westmoreland was
        dead and that Pettis was critically wounded. Pettis told the
        officer that a young black man with a bald head wearing blue
        shorts shot her. Less than three hours later, Snell reported to the
        police that his 9 mm gun had been stolen.


        Both Westmoreland and Pettis died from their gun shot wounds.
        Westmoreland had been shot nine times, and Pettis had been
        shot two times. All of the casings found at the scene were “9 mm
        Luger caliber cartridge casings,” and the bullets were “9 mm.”
        Id. at 403-404. All of the bullets and casings large enough for
        analysis were fired from the same gun. When officers attempted
        to arrest Snell a few days later, Snell identified himself as
        “Jonathan Snell,” his brother, and fled on foot. Id. at 327. Snell
        was eventually apprehended by the officers.


        The State charged Snell with two counts of murder. After the
        State rested at the jury trial, Snell attempted to call his girlfriend,
        Sarajevo Anderson, as an alibi witness. Noting that Snell had
        failed to file a notice of alibi, the trial court denied Snell’s request
        to present Anderson as an alibi witness and noted that Snell had
        not demonstrated good cause for his failure to file a timely notice
        of alibi. Snell then testified at the trial that he left the residence
        on North Webster before Westmoreland arrived and that he
        spent the night with Anderson.


Snell v. State, No. 49A02-0708-CR-700, 2008 WL 2054041, at *1 (Ind. Ct. App.

May 15, 2008), trans. denied. The trial court denied Snell’s proposed alibi
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016   Page 3 of 9
      instruction. The jury found Snell guilty as charged in June 2007. The trial

      court sentenced him to 100 years of imprisonment.


[4]   On direct appeal, Snell argued that the trial court erred in excluding his alibi

      witness and denying his alibi instruction and that his sentence was

      inappropriate. Another panel of this Court affirmed the trial court in all

      respects. See id. Snell filed a PCR petition raising several claims of ineffective

      assistance of trial counsel and freestanding error. After a hearing, the

      postconviction court denied Snell’s petition in October 2015. This appeal

      followed. Additional facts will be provided as necessary.


                                     Discussion and Decision
[5]   Snell asserts that the postconviction court erred in denying his PCR petition.

      Postconviction proceedings do not grant a petitioner a “super-appeal” but are

      limited to those issues available under Indiana’s postconviction rules. Shepherd

      v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied.

      Postconviction proceedings are civil in nature, and a petitioner bears the burden

      of proving his grounds for relief by a preponderance of the evidence. Id. A

      petitioner appealing the denial of PCR faces a rigorous standard of review, as

      we may consider only the evidence and the reasonable inferences supporting

      the judgment of the postconviction court. Id. We will not reweigh the evidence

      or judge witness credibility. Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct.

      App. 2013), trans. denied (2014). We must accept the postconviction court’s

      findings of fact and may reverse only if they are clearly erroneous. Shepherd,


      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016   Page 4 of 9
      924 N.E.2d at 1280. A petitioner must show that the evidence as a whole leads

      unerringly and unmistakably to an opposite conclusion than that reached by the

      postconviction court. Id.


[6]   Snell claims that he was denied his Sixth Amendment right to the effective

      assistance of trial counsel. To prevail on such a claim, a petitioner must show

      that his counsel’s performance fell below an objective standard of

      reasonableness based on prevailing professional norms and that there is a

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

      would have been different. Little v. State, 819 N.E.2d 496, 501 (Ind. Ct. App.

      2004), trans. denied (2005). “A reasonable probability is a probability sufficient

      to undermine confidence in the outcome.” Talley v. State, 51 N.E.3d 300, 303

      (Ind. Ct. App. 2016), trans. denied. Counsel’s performance is presumed

      effective, and a petitioner must offer strong and convincing evidence to

      overcome this presumption. Little, 819 N.E.2d at 501. “[A] court need not

      determine whether counsel’s performance was deficient before examining the

      prejudice suffered by the defendant as a result of the alleged deficiencies.”

      Strickland v. Washington, 466 U.S. 668, 697 (1984). “If it is easier to dispose of

      an ineffectiveness claim on the ground of lack of sufficient prejudice, … that

      course should be followed.” Id. Snell raises four ineffectiveness claims. We

      address each in turn.


[7]   First, Snell alleges that counsel was ineffective in failing to investigate and

      prepare a defense based on the alleged involvement of three men against whom

      Westmoreland was scheduled to testify in an attempted murder case. All three

      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016   Page 5 of 9
      men were in jail when Westmoreland and Pettis were killed. Before trial, the

      State filed a motion in limine to exclude any evidence of third-party

      involvement in the murders. The trial court told Snell’s counsel, “If you want

      to introduce evidence on the third party committing the crime, you would have

      to have some evidence connecting the person to that crime.” Trial Tr. at 9. See

      Pelley v. State, 901 N.E.2d 494, 505 (Ind. 2009) (reciting “the widely-accepted

      principle that before evidence of a third party is admissible, the defendant must

      show some connection between the third party and the crime.”). Counsel

      admitted that she had no evidence that the three men had committed or

      conspired with others to commit the murders. The trial court granted the

      State’s motion in limine but allowed counsel to make an offer of proof.


[8]   In its order, the postconviction court found,

              While he is highly critical of counsel’s efforts at presenting a third
              party type defense, [Snell] has presented no additional evidence
              that establishes a credible connection between any third parties
              and the murders in this case. Without this evidence, the Court
              must find that [Snell] failed to establish that he was prejudiced by
              counsel’s actions.


      Appellant’s App. at 131. Indeed, Snell has failed to assert, let alone establish,

      that he was prejudiced by counsel’s actions, i.e., that but for counsel’s alleged

      error, there is a reasonable probability that the result of his trial would have

      been different. Consequently, this claim fails.


[9]   Second, Snell asserts that counsel was ineffective in failing to timely discover an

      alibi witness. When Snell was questioned by the police after his arrest, he
      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016   Page 6 of 9
       claimed that he was “with some friends [in] Bloomington” at the time of the

       murders. Trial Tr. at 503. On the morning of the last day of trial, Snell told his

       counsel that he had been with a woman named Sarajevo Anderson at the time

       of the murders and had lied about his whereabouts because he did not want to

       upset his girlfriend. Counsel informed the trial court of this development after

       the State rested its case, and she asked to call Anderson as an alibi witness. The

       trial court denied this request as untimely 1 and in “horribly bad faith”:

       “[Y]ou’re telling me your client didn’t want to disclose because he didn’t want

       to make his girlfriend jealous. It’s ridiculous when you’re charged with two

       counts of murder and facing 125 years in prison.” Id. at 469-70. Snell took the

       stand and claimed that he had been with Anderson at the time of the murders.

       In a subsequent offer of proof, Anderson claimed that Snell was with her on the

       night of the murders from approximately 10:00 p.m. onward.


[10]   The postconviction court determined that, “[r]ather than a strategic error, or a

       lack of investigation on the part of defense counsel,” the alibi issues “were

       caused by [Snell] himself” and thus were “simply invited error.” Appellant’s

       App. at 134. We agree. “The doctrine of invited error is grounded in estoppel.

       Under this doctrine, a party may not take advantage of an error that she

       commits, invites, or which is the natural consequence of her own neglect or

       misconduct.” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (citations and




       1
         See Ind. Code § 35-36-4-1 (requiring defendant to file notice of alibi defense no later than twenty days prior
       to omnibus date in felony case).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016                  Page 7 of 9
       quotation marks omitted). “Invited error is not reversible error.” Kelnhofer v.

       State, 857 N.E.2d 1022, 1024 (Ind. Ct. App. 2006). As far as Snell’s counsel

       was aware, her client had claimed to be in Bloomington on the night of the

       murders, and she cannot be held responsible for Snell’s last-minute revelation

       about Anderson, who testified during the offer of proof that Snell had told her

       “not to come forward” because “he was concerned about [her].” Trial Tr. at

       564. Snell has only himself to blame for the exclusion of his alibi witness.


[11]   Third, Snell argues that counsel was ineffective by opening the door to allegedly

       damaging evidence. In cross-examining Detective Thomas Lehn, Snell’s

       counsel accused him of having “nothing else except the testimony of Mr. Beech

       and Mr. Gray and Mr. Richardson” regarding Snell’s involvement in the

       murders. Trial Tr. at 439. Detective Lehn said, “No, ma’am, that’s not

       accurate.” Id. Counsel asked, “And what would that be?” Id. The detective

       answered, “I have statement[s] from Shaquanna Johnson, statements from

       Tamara Brown - -” Id. Counsel objected on hearsay grounds. The trial court

       responded, “He didn’t say what the statements were. You asked and he told

       […] the jury. Next question.” Id. The postconviction court found that Snell

       had “not established, or even argued that he suffered any specific prejudice

       from admission of this evidence[.]” Appellant’s App. at 135. The same is true

       on appeal, and therefore this claim fails.


[12]   Fourth, and finally, Snell contends that counsel failed to inform him of a plea

       offer from the State, which our supreme court has said is “a denial of effective

       assistance of counsel[.]” Gray v. State, 579 N.E.2d 605, 607 (Ind. 1991). At the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016   Page 8 of 9
       PCR hearing, counsel testified that the State tendered a plea offer of thirty years

       and that she did not tell Snell about it because she “did not believe that he

       would turn over anyone” in exchange for the plea. PCR Tr. at 20. Two of the

       prosecutors assigned to Snell’s case, however, testified that no plea offer was

       made. Id. at 37, 52. The postconviction court found the prosecutors’ testimony

       more credible, and we will not second-guess that determination on appeal.

       Finding no error, we affirm the denial of Snell’s PCR petition.


[13]   Affirmed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-PC-1891 | July 29, 2016   Page 9 of 9
