MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Aug 17 2018, 8:40 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Derrick D. Armstead                                      Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Derrick D. Armstead,                                     August 17, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-378
        v.                                               Appeal from the Posey Superior
                                                         Court
State of Indiana,                                        The Honorable S. Brent Almon,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         65D01-1510-PC-352



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018                    Page 1 of 8
                                          Case Summary
[1]   Pro-se Appellant-Petitioner Derrick Armstead (“Armstead”) appeals the denial

      of his petition for post-conviction relief, following his convictions of Attempted

      Murder and Battery, and his adjudication as a habitual offender. He presents

      the sole issue of whether he was denied the effective assistance of trial counsel.

      We affirm.



                            Facts and Procedural History
[2]   The facts were recited by a panel of this Court on direct appeal, in relevant part,

      as follows:


              On July 29, 2013, Armstead and Christopher Bradshaw began
              arguing outside at the mobile-home community in which
              Christopher lived. Property manager Tyfney Bennett intervened
              and attempted to settle the dispute between the two. After
              Armstead’s girlfriend and Christopher’s wife began to argue,
              Bennett told Christopher’s wife to call the police. Armstead then
              backed off, began walking away and said, “I will f***ing kill you
              all.” Tr. p. 256.


              Soon thereafter, Larry Bradshaw, Christopher’s father, arrived at
              the mobile home. Larry worked as a handyman for the property
              and was delivering materials to another trailer. When he arrived,
              Larry was unaware of the prior altercation between Christopher
              and Armstead. Upon exiting his truck, Larry noticed Armstead
              standing nearby and asked him if there was a problem. Armstead
              replied, “F*** yes there is, I am going to cut your f***ing
              throat.” Tr. p. 290. Armstead then removed a folded knife from
              his pocket and approached Larry. Armstead’s girlfriend also
              approached Larry carrying a baseball bat. The two attacked

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018   Page 2 of 8
               Larry, Armstead stabbing him multiple times in the chest, arm,
               and back, and Armstead’s girlfriend striking Larry in the head
               with the baseball bat. Christopher ran to aid his father but was in
               turn stabbed by Armstead in the chest and neck. Armstead
               admitted to stabbing Larry but contends that it was in retaliation
               after Larry poured gasoline on him. Larry testified that he did
               not pour or attempt to pour gasoline on Armstead.


      Armstead v. State, No. 65A01-1408-CR-232, slip op. at 1 (Ind. Ct. App. Feb. 12,

      2015).


[3]   On April 11, 2014, a jury found Armstead guilty of Attempted Murder and

      multiple counts of Battery. Armstead was also adjudicated a habitual offender.

      The trial court entered judgments of conviction on Attempted Murder and one

      count of Battery. Armstead received an aggregate sentence of seventy-four

      years (thirty-eight years for Attempted Murder, enhanced by thirty years due to

      Armstead’s habitual offender status, and six years for Battery, to be served

      consecutively).


[4]   Armstead appealed, raising issues of prosecutorial misconduct and exclusion of

      evidence. Armstead’s convictions were affirmed. Id. at 5.


[5]   On October 1, 2015, Armstead filed a petition for post-conviction relief. On

      August 17, 2017, the post-conviction court conducted an evidentiary hearing, at

      which Armstead’s trial counsel was the sole witness. On January 2, 2018, the

      post-conviction court issued its findings of fact, conclusions thereon, and order

      denying Armstead post-conviction relief. He now appeals.



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018   Page 3 of 8
                                 Discussion and Decision
                                        Standard of Review
[6]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing

      from the denial of post-conviction relief, the petitioner stands in the position of

      one appealing from a negative judgment. Id. On review, we will not reverse the

      judgment of the post-conviction court unless the evidence unerringly and

      unmistakably leads to a conclusion opposite that reached by the 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, findings of

      fact are accepted unless they are clearly erroneous, and no deference is accorded

      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.


                               Effectiveness of Trial Counsel
[7]   Armstead contends that he was denied the effective assistance of trial counsel

      because counsel failed to conduct a “full fact investigation,” Appellant’s Brief at

      8, and failed to call two witnesses supportive of Armstead’s defense of self-

      defense: Armstead’s girlfriend, Deneca Finch (“Finch”), and her son Trey

      Bunch (“Bunch”).



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018   Page 4 of 8
[8]   Effectiveness of counsel is a mixed question of law and fact. Strickland v.

      Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

      of ineffective assistance under the two-part test announced in Strickland. Id. To

      prevail on an ineffective assistance of counsel claim, a defendant must

      demonstrate both deficient performance and resulting prejudice. Dobbins v.

      State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

      Deficient performance is that which falls below an objective standard of

      reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

      1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that

      “there is a reasonable probability that, but for counsel’s unprofessional errors,

      the result of the proceeding would have been different. A reasonable

      probability is a probability sufficient to undermine confidence in the outcome.”

      Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

      1996). The two prongs of the Strickland test are separate and independent

      inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an

      ineffectiveness claim on the ground of lack of sufficient prejudice … that course

      should be followed.” Id.


[9]   We “strongly presume” that counsel provided adequate assistance and

      exercised reasonable professional judgment in all significant decisions. McCary

      v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

      considerable discretion in the choice of strategy and tactics. Timberlake v. State,

      753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the

      facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018   Page 5 of 8
       1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring

       reasonable professional judgment even if the strategy in hindsight did not serve

       the defendant’s interests. Id. In sum, trial strategy is not subject to attack

       through an ineffective assistance of counsel claim, unless the strategy is so

       deficient or unreasonable as to fall outside the objective standard of

       reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).


[10]   Initially, Armstead contends that his trial attorney failed to conduct a

       sufficiently thorough investigation of the relevant facts. Armstead’s trial

       counsel, John Warrum (“Warrum”), was the sole witness at the post-conviction

       hearing. As for his investigative efforts, Warrum testified that he reviewed

       Armstead’s police statements and the body camera footage from the first

       responding officer. Warrum interviewed and deposed potential defense

       witnesses and met with members of Armstead’s family. He estimated that he

       reviewed “five thousand times” a cell phone video made by one of the mobile

       home community residents. (Tr. Vol. II, pg. 33.) Armstead does not point to

       relevant evidence that would have surfaced with more diligent efforts on the

       part of trial counsel. He has not shown ineffectiveness in this regard. See

       Coleman v. State, 694 N.E.2d 269, 274 (Ind. 1998) (observing that the petitioner

       claiming inadequate consultation or investigation bears the burden of showing

       what additional information may have been garnered and how that additional

       information would have aided in the preparation of the case).


[11]   Armstead also argues that his trial counsel should have called Finch and Bunch

       as witnesses to support Armstead’s claim of self-defense. Warrum testified that

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018   Page 6 of 8
       he deposed Finch but her deposition testimony that she was not wielding a bat

       contradicted the video image of her with a bat. He decided not to call Finch as

       a witness for fear that the jury would find her testimony false and the credibility

       of the defense of self-defense would be undermined. Warrum further testified

       that he had interviewed Bunch, who was too young to drive, and was brought

       to the interview by a relative. Warrum explained that his decision not to call

       Bunch as a witness was based upon his fear that the youthful Bunch could be

       led into providing testimony harmful to Armstead’s defense. In Warrum’s

       view, Bunch could have been questioned about what happened to the knife

       used to stab Larry but never recovered by police. Also, Warrum feared that

       Bunch could “open the door” that “couldn’t be shut,” allowing the jury to hear

       about Armstead’s prior conviction for Voluntary Manslaughter. (Tr. Vol. II,

       pg. 36.)


[12]   In the context of an ineffective assistance of counsel claim, the decision of what

       witnesses to call is a matter of trial strategy and appellate courts do not second-

       guess that decision. Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009).

       Here, trial counsel explained that Armstead’s defense was one of self-defense,

       but counsel had been placed in a very difficult position in that the trial witnesses

       and physical evidence did not support Armstead’s version of events. In

       addition to video incriminating Armstead, the pour pattern from spilled

       gasoline was near Larry’s truck and not on Armstead’s property as he had

       claimed. However, counsel opined that the first responder’s camera footage in

       which Armstead claimed he was attacked could be helpful to Armstead; the


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018   Page 7 of 8
       video was admitted into evidence with redactions requested by counsel. The

       jury’s ultimate rejection of the defense of self-defense was not due to

       inadequacy on the part of trial counsel. Trial counsel’s efforts and strategy,

       although they did not ultimately achieve the result desired by Armstead, were

       not so unreasonable as to constitute ineffective assistance of counsel. See Badelle

       v. State, 754 N.E.2d 510, 539 (Ind. Ct. App. 2001) (deciding in relevant part

       that, when trial counsel’s efforts were “more than adequate” to support a

       chosen defense, counsel’s decision not to seek out additional witnesses was a

       judgment call within the wide range of reasonable assistance), trans. denied.



                                               Conclusion
[13]   Armstead was not denied the effective assistance of trial counsel. Accordingly,

       the post-conviction court properly denied the petition for post-conviction relief.


[14]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018   Page 8 of 8
