MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 09 2017, 7:49 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




APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Daniel Mola                                             Curtis T. Hill, Jr.
Bunker Hill, Indiana                                    Attorney General of Indiana

                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Daniel Mola,                                            November 9, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A03-1608-PC-1911
        v.                                              Appeal from the Lake County
                                                        Superior Court
State of Indiana,                                       The Honorable Clarence D.
Appellee-Plaintiff                                      Murray, Judge
                                                        The Honorable Kathleen Sullivan,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        45G02-1209-PC-11



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017        Page 1 of 24
[1]   Daniel Mola appeals the post-conviction court’s denial of his petition for post-

      conviction relief. He presents multiple issues for our consideration, which we

      consolidate and restate as:


              1. Whether the post-conviction court abused its discretion when
              it denied Mola’s request to hire a toxicologist at public expense to
              testify at Mola’s post-conviction hearing;


              2. Whether the post-conviction court abused its discretion when
              it denied Mola’s request to admit a Medication Guide for Prozac;


              3. Whether Mola received ineffective assistance of trial counsel;


              4. Whether Mola received ineffective assistance of appellate
              counsel; and


              5. Whether the Indiana Court of Appeals erred in its decision in
              Mola’s direct appeal.


      We affirm.



                            Facts and Procedural History
[2]   The facts of Mola’s underlying conviction were set forth in our opinion on

      direct appeal:


              On July 18, 2009, Christopher Elkins (“Elkins”) and Mola were
              at a bar called Buddy and Pal’s Place in Winfield, Indiana.
              Elkins was sitting at the bar area. When Elkins left his seat,
              Mola took his place. Later, Elkins returned and entered into a
              “heated” conversation with Mola. Both men appeared angry and

      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 2 of 24
        yelled expletives at each other. Bar employees then separated the
        two, and Elkins left the bar area.


        Elkins accepted an offer from his friend, James Bannister
        (“Bannister”), to drive him home. As Bannister and Elkins were
        preparing to leave the bar, they walked past Mola who was still
        sitting in the bar area. Elkins shoved Mola’s barstool before
        walking out to the parking lot. After Elkins passed, Mola stood
        up, loaded a round into his handgun and approached the exit
        while holding the pistol. A bar employee tried to stop Mola, but
        Mola continued out to the parking lot.


        When Mola reached the parking lot, Elkins and Bannister were
        near the back of Bannister’s vehicle. Mola raised his firearm and
        yelled to Elkins, “[H]ey [,] [m*f*].” Elkins turned around and
        asked Mola, “[W]hat are you going to do[?][S]hoot me[?]” Mola
        then fired two shots in “rapid” succession at Elkins, striking him
        in the abdomen. Elkins died as a result of his gunshot wounds.


        On July 20, 2009, the State of Indiana charged Mola with murder
        and carrying a handgun without a license.


Mola v. State, 45A03-1105-CR-206, 964 N.E.2d 316 at *1 (Ind. Ct. App.

February 29, 2012) (formatting of quotes in original) (record citations omitted),

trans. denied. In April 2010, Mola’s first trial ended in a mistrial. The trial court

held a second jury trial in March 2011. The jury in the second trial found Mola

guilty of Class A felony voluntary manslaughter and Class A misdemeanor

carrying a handgun without a license, and the trial court sentenced him to thirty

years incarcerated.




Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 3 of 24
[3]   Mola appealed, arguing the trial court abused its discretion when it denied his

      proposed jury instruction on the lesser-included offense of involuntary

      manslaughter. Our court affirmed, holding:


              No serious evidentiary dispute was present regarding Mola’s
              intent to kill Elkins. The trial court had sufficient evidence to
              conclude that Mola acted with the intent to kill and not merely
              batter Elkins. Consequently, it was not an abuse of the trial
              court’s discretion to deny Mola’s proposed jury instruction that
              included involuntary manslaughter as a lesser included offense.


      Id. at *3.


[4]   On September 18, 2012, Mola filed a petition for post-conviction relief. Mola

      amended his petition on May 5, 2014. On June 17, 2014, Mola filed a petition

      requesting the post-conviction court hire a toxicologist at public expense, which

      the post-conviction court denied. The post-conviction court held evidentiary

      hearings on Mola’s petition for post-conviction relief on July 9 and 10, 2014.

      During the hearing, Mola attempted to offer into evidence a “Medication

      Guide for Prozac which enumerated the many adverse effects of the drug.”

      (Amended Br. of Appellant at 17) (citations to the record omitted). The State

      objected, and the trial court sustained the State’s objection but stated, “we’ll

      show that it’s admitted as an offer to prove.” (Tr. at 110.) The post-conviction




      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 4 of 24
      court issued an order 1 on July 27, 2016, denying Mola’s petition for post-

      conviction relief.



                                  Discussion and Decision
[5]   We first note Mola proceeds pro se. A litigant who proceeds pro se is held to the

      same rules of procedure that trained counsel is bound to follow. Smith v.

      Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed,

      558 U.S. 1074 (2009). One risk a litigant takes when he proceeds pro se is that

      he will not know how to accomplish all the things an attorney would know how

      to accomplish. Id. When a party elects to represent himself, there is no reason

      for us to indulge in any benevolent presumption on his behalf or to waive any

      rule for the orderly and proper conduct of his appeal. Foley v. Mannor, 844

      N.E.2d 494, 502 (Ind. Ct. App. 2006).


[6]   Post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and on direct appeal. Davidson

      v. State, 763 N.E.2d 441, 443 (Ind. 2002), reh’g denied, cert. denied 537 U.S. 1122

      (2003). A petitioner who has been denied post-conviction relief faces a

      “rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      He must convince the court on review that the evidence as a whole leads

      unerringly and unmistakably to a decision opposite that reached by the post-




      1
       The post-conviction court’s order is very detailed and has aided our review of this complicated matter
      immensely.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017          Page 5 of 24
      conviction court. Id. at 170. We will disturb a post-conviction court’s decision

      as being contrary to law only where the evidence is without conflict and leads

      to but one conclusion, and the post-conviction court has reached the opposite

      conclusion. Id. We accept the post-conviction court’s findings of fact unless

      clearly erroneous. Id. We do not reweigh the evidence or judge the credibility

      of witnesses. Mahone v. State, 742 N.E.2d 982, 984 (Ind. Ct. App. 2001), trans.

      denied.


                       1. Denial of Request to Hire Toxicologist
[7]   The decision whether to appoint at public expense an expert for indigent

      defendants is left to the trial court’s sound discretion, and we will reverse only

      for an abuse of that discretion. Beauchamp v. State, 788 N.E.2d 881, 888 (Ind.

      Ct. App. 2003). It is within that discretion “to determine whether the requested

      service would be needless, wasteful or extravagant.” Id.


                While there is no exhaustive and precise list of considerations,
                the trial court’s central inquiry addresses whether the services are
                necessary to assure an adequate defense and whether the
                defendant specifies precisely how he would benefit from the
                requested expert services. Factors include: (1) whether the
                services would bear on an issue generally regarded to be within
                the common experience of the average person, or on one for
                which an expert opinion would be necessary; (2) whether the
                requested expert services could nonetheless be performed by
                counsel; (3) whether the proposed expert could demonstrate that
                which the defendant desires from the expert; (4) whether the
                purpose for the expert appears to be only exploratory; (5)
                whether the expert services will go toward answering a
                substantial question in the case or simply an ancillary one; (6) the
                seriousness of the charge; (7) whether the State is relying upon an
      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 6 of 24
                 expert and expending substantial resources on the case; (8)
                 whether a defendant with monetary resources would choose to
                 hire such an expert; (9) the costs of the expert services; (10) the
                 timeliness of the request for the expert and whether it was made
                 in good faith; and (11) whether there is cumulative evidence of
                 the defendant’s guilt. Even where there are factors present
                 militating toward appointment of an expert, such as the services
                 would have borne upon an issue outside the common experience
                 of the average person, and analysis is outside the scope of the
                 typical attorney’s services, the factors may be insufficient to
                 require the trial court to approve the hiring of an expert at public
                 expense.


      Kocielko v. State, 938 N.E.2d 243, 254-5 (Ind. Ct. App. 2010) (internal citations

      omitted), on reh’g, 943 N.E.2d 1282 (Ind. Ct. App. 2011), 2 trans. denied.


[8]   On June 20, 2014, Mola filed a “Verified Motion for Order Authorizing Expert

      at Public Expense.” (App. Vol. IV at 38.) In that motion, he asked the post-

      conviction court to authorize him to retain the services of a toxicologist at

      public expense for the purpose of bolstering his claim his trial counsel was

      ineffective for failing to present additional evidence of Elkins’ intoxication.

      Mola claims this evidence would prove he acted in self-defense when he killed

      Elkins. The post-conviction court concluded: “Having a toxicologist testify at

      trial would be cumulative[.]” (App. Vol. V at 87.) We agree.


[9]   The evidence Mola sought to present via the toxicologist at the post-conviction

      hearing was cumulative of evidence presented during his March 2011 trial,



      2
          The issues clarified on rehearing in Kocielko are not relevant to the case before us.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017     Page 7 of 24
       including eyewitness testimony of Elkins’ intoxication. In examining the other

       factors set forth in Kocielko, we note Mola requested the appointment of the

       toxicologist at public expense less than a month before the evidentiary hearings

       held on July 9 and 10, 2014. Mola certainly faced a serious charge during his

       original trial, which he sought to overturn in the post-conviction proceedings.

       In addition, he indicated the cost of retaining the toxicologist as required in the

       Kocielko factors, though the reasonableness of this charge is unclear from Mola’s

       motion. However, based on the Kocielko factors, we conclude the post-

       conviction court did not abuse its discretion when it denied Mola’s motion.

       See, e.g., Watson v. State, 972 N.E.2d 378, 385-6 (Ind. Ct. App. 2012) (no abuse

       of discretion when trial court denied motion for expert).


                  2. Denial of Request to Admit Medication Guide
[10]   The admission of evidence in a post-conviction proceeding is within the post-

       conviction court’s discretion, and we will reverse only for an abuse of that

       discretion. Conner v. State, 711 N.E.2d 1238, 1258 (Ind. 1999), reh’g denied, cert.

       denied 531 U.S. 829 (2000). During his post-conviction evidentiary hearing,

       Mola sought to admit a Medication Guide for Prozac, which Mola claimed was

       a printout of information provided by Eli Lilly, the manufacturer of Prozac.

       Mola argued the document provided information regarding the side effects of

       Prozac and was relevant to whether his trial counsel was ineffective for “failing

       to get a toxicologist who could testify to such matters.” (Tr. at 109.)




       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 8 of 24
[11]   The State objected on hearsay grounds. Mola and the post-conviction court

       then discussed the document:


               [Court]: Do you have a response to the hearsay objection?


               [Mola]: Your Honor, I believe it would constitute a commercial
               publication exception to the hearsay.


               [Court]: It’s not a commercial publication in that it’s not
               disseminated. It’s only disseminated to doctors and people
               taking the medication, is that right?


               [Mola]: Yes, I believe so. I mean, it’s approved by the FDA.


               [Court]: I understand that. That’s irrelevant. That has nothing
               to do with whether it’s based on this. This is a printout out [sic]
               by the company. It has nothing to do with the FDA’s approval
               of the medication for the purposes it’s designed for.


               [Mola]: What about as a business record?


               [Court]: That’s a good response to it.


       (Id. at 108.) The State then objected on foundational grounds and the inability

       to cross-examine the document. The post-conviction court sustained the State’s

       objections, though it accepted the document as “an offer to prove.” (Id. at 110.)


[12]   On appeal, Mola reiterates his assertion regarding the relevancy of the

       document; however, he does not provide cogent argument regarding why it

       should be admitted. Therefore, he has waived his argument. See Smith v. State,


       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 9 of 24
       822 N.E.2d 193, 202-3 (Ind. Ct. App. 2005) (“Generally, a party waives any

       issue raised on appeal where the party fails to develop a cogent argument or

       provide adequate citation to authority and portions of the record.”), trans.

       denied; see also Ind. App. Rule 46(A)(8)(a) (requiring argument section of

       appellant’s brief to “contain the contentions of the appellant on the issues

       presented, supported by cogent reasoning[ ]” and “[e]ach contention must be

       supported by citations to the authorities, statutes, and the appendix or parts of

       the Record on Appeal relied on, in accordance with Rule 22”).


                        3. Ineffective Assistance of Trial Counsel
[13]   A successful claim of ineffective assistance of trial counsel must satisfy two

       components. First, the defendant must show deficient performance -

       representation that fell below an objective standard of reasonableness involving

       errors so serious that the defendant did not have the counsel guaranteed by the

       Sixth Amendment. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh’g

       denied. Second, the defendant must show prejudice - a reasonable probability

       that, but for counsel’s errors, the result of the proceeding would have been

       different. Id.


[14]   In reviewing a claim of ineffective assistance of counsel, we begin with a strong

       presumption “that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.” Ward

       v. State, 969 N.E.2d 46, 51 (Ind. 2012), reh’g denied. Trial counsel has wide

       latitude in selecting trial strategy and tactics, which choices will be subjected to


       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 10 of 24
       deferential review. Id. A petitioner must offer “strong and convincing evidence

       to overcome this presumption” of adequate assistance and reasonable

       professional judgment. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000),

       reh’g denied, cert. denied 534 U.S. 830 (2001).


                                              A. Partial Verdict

[15]   Mola argues his trial counsel in his first trial, Nick Thiros and Paul Stracci,

       were ineffective because they did not “consult with Mola on whether to pursue

       a partial-verdict at the conclusion of the mistrial[.]” (Amended Br. of Appellant

       at 21.) In its order, the post-conviction court described the testimony which

       fuels Mola’s argument on appeal:


               At the first trial, the jury was deadlocked and Mr[.] Thiros
               thought a mistrial was in Mola’s best interests and he made the
               strategic decision to ask for a mistrial. Mr[.] Stracci believes he
               discussed the jury being undecided with Mr[.] Mola. . . . It was
               not until after the mistrial was declared that Samuel Vazanellis,
               an associate attorney for Thiros & Stracci spoke to the released
               jury with attorneys for the State of Indiana. Mr[.] Vazanellis
               prepared an Affidavit of that jury encounter describing that the
               jurors would have voted to acquit Mola of murder and they were
               hung on involuntary manslaughter, and one or two thought Mola
               acted in self defense.


       (App. Vol. V at 84.) Vazanellis’ affidavit also indicated the jurors thought Mola

       was also not guilty of voluntary manslaughter.


[16]   However, the conversation Mola uses to support his argument occurred after

       the trial court granted his request for mistrial. Thus, Thiros and Stracci would


       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 11 of 24
       not have known the jury had come to a conclusion regarding some of the

       charges at the time it would have been appropriate to request a partial verdict.

       We note


               [b]ecause a jury speaks only through its verdict, its failure to
               reach a verdict cannot—by negative implication—yield a piece of
               information that helps put together the trial puzzle. . . . Unlike
               the pleadings, the jury charge, or the evidence introduced by the
               parties, there is no way to decipher what a hung count represents.
               . . . A host of reasons—sharp disagreement, confusion about the
               issues, exhaustion after a long trial, to name but a few—could
               work alone or in tandem to cause a jury to hang. To ascribe
               meaning to a hung count would presume an ability to identify
               which factor was at play in the jury room. But that is not
               reasoned analysis; it is guesswork. Such conjecture about
               possible reasons for a jury’s failure to reach a decision should
               play no part in assessing the legal consequences of a unanimous
               verdict that the jurors did return.


       Yeager v. United States, 557 U.S. 110, 119-20 (2009).


[17]   Additionally, as the post-conviction court noted, “[T]here was no indication

       that the jury was deadlocked on only one, or all of the possible verdicts for the

       case. It would have been a great gamble to request a partial verdict and Mr[.]

       Thiros made a sound strategic decision to ask for a mistrial.” (App. Vol. V at

       86.) As we defer to trial counsel’s strategic decisions, Ward, 969 N.E.2d at 51,




       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 12 of 24
       we conclude Mola has not demonstrated his trial counsel’s performance was

       deficient for failing to request a partial verdict. 3


                         B. Testimony Regarding Elkins’ Level of Intoxication

[18]   Mola argues his trial counsel was ineffective because they did not “elicit

       testimony that the victim’s body smelled of alcohol and for failing to obtain a

       toxicologist in order to introduce evidence of the victim’s blood-alcohol level

       and the adverse effects of Prozac.” (Amended Br. of Appellant at 32.) During

       the post-conviction hearing, Mola’s counsel Stracci explained why he and

       Thiros chose not to call a toxicologist as a witness, which the post-conviction

       court summarized in its order:


                The defense did elicit from Patricia Elkins that her husband had
                been taking Prozac for ten years and that he also took Synthroid,
                but she said that he was not aggressive when he drank. On cross-
                examination of James Bannister, Elkins’ friend, Mr[.] Stracci got
                him to admit he thought Elkins was intoxicated that night. In
                response to a jury question, Bannister said that Elkins functioned
                fine other than fumbling over the right word to use in a sentence.
                The jury heard ample evidence that Elkins was intoxicated the
                night of the shooting, and that Elkins shoved Mola’s barstool
                when he exited the bar. Having a toxicologist testify at trial
                would be cumulative and perhaps speculative, since not all
                people metabolize alcohol or drugs at the same rate. Having a
                toxicologist testify at trial may have backfired and left the jury
                wondering what effect alcohol had on Mola that evening. This




       3
         Mola also argues his trial counsel was ineffective for failing to ask for the verdict forms. As the jury did not
       reach a verdict, it would follow no verdict forms were completed. Mola has offered no evidence the forms
       existed and, thus, is unable to predicate error on his trial counsel’s failure to review them.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017             Page 13 of 24
               was a strategic decision, and the Court cannot say that Stracci’s
               strategic decision to forego a toxicology expert was faulty.


       (App. Vol. V at 87) (internal citations to the record omitted).


[19]   In his brief, Mola relies on Harris v. Cotton, 365 F.3d 552 (7th Cir. 2004). Harris

       is distinguishable. In Harris, the Seventh Circuit Court of Appeals held Harris’

       trial counsel was ineffective for not calling as a witness a toxicologist who could

       testify regarding the victim’s level of intoxication the night he was killed and

       how that related to Harris’ perception of the threat the victim posed, as Harris

       argued he acted in self-defense when he shot the victim. However, the court

       noted


               there is little or no evidence which goes to show that Harris knew
               that Jones was under the influence of cocaine and alcohol. . . .
               When defense counsel tried to question the coroner as to whether
               Jones’s body smelled of alcohol, his line of questioning was
               disallowed. Therefore, the jury was left with the impression that
               the decedent was not intoxicated when, in fact, he was quite
               inebriated. If the jury believed that Jones was sober, there is a
               reasonable probability that they would not have believed Harris’s
               version of events as it related to Jones’s behavior.


       Id. at 557 (footnote omitted). Here, the jury heard from two witnesses

       regarding Elkins’ intoxication that night and his normal behavior when

       intoxicated, and thus the danger that befell Harris, that his jury did not

       understand the threat the victim allegedly posed, is not present in this case.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 14 of 24
[20]   Additionally, as we stated supra, any evidence from a toxicologist would have

       likely been cumulative because the jury was aware Elkins was intoxicated.

       Regarding the smell of Elkins’ body during the autopsy, that evidence was

       likely also cumulative, because Mola asserts its admission was another way to

       demonstrate Elkins was intoxicated. Mola has not demonstrated he was

       prejudiced by his trial counsel’s decision to refrain from calling a toxicologist

       during trial or include testimony about the smell of the body; thus, we conclude

       he has not demonstrated his trial counsel was ineffective. See McCary, 761

       N.E.2d at 392 (petitioner does not demonstrate ineffective assistance of counsel

       if he is not prejudiced by the alleged error).


                                       C. Final Jury Instruction 20

[21]   On appeal, Mola argues trial counsel was ineffective “for failing to object

       specifically and fully to the impropriety of Final Instruction No. 20, which

       could have led the jury to believe that the defendant’s evidence - and the

       defendant’s evidence alone - was required to affirmatively prove specified facts

       demonstrating that he was acting in self-defense.” (Br. of Appellant at 44.)

       Final Jury Instruction 20 stated:


               For the defendant’s assertion of self-defense to prevail in this
               case, he must have shown,


               1. that he was in a place where he had the right to be;


               2. [that] he did not provoke, instigate, or participate willingly in
               the violence;


       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 15 of 24
               3. [that he] had a reasonable fear of death or great bodily harm.


               For the defense of self-defense to fail in this case, the State must
               have disproved one of these elements beyond a reasonable doubt.


       (Record of Mola’s Trial Proceedings at 1558.) Mola’s trial counsel offered an

       alternate instruction, but the trial court denied the request to amend the jury

       instruction. Mola contends, “[w]hile counsel proposed its own self-defense

       instructions, none of them remedied the alleged defect in [Final Jury

       Instruction] 20 and counsel never raised a specific and full objection.”

       (Amended Br. of Appellant at 45) (record citation omitted).


[22]   To show ineffective assistance based on counsel’s failure to object, a petitioner

       must demonstrate the trial court would have sustained the objection. Glotzbach

       v. State, 783 N.E.2d 1221, 1224 (Ind. Ct. App. 2003). The petitioner must also

       establish prejudice. Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997), reh’g

       denied, cert. denied 525 U.S. 1073 (1999). Mola relies on our holding in Burnside

       v. State, 858 N.E.2d 232 (Ind. Ct. App. 2006), in which we held Burnside’s

       appellate counsel was ineffective for failing to raise the issue of a jury

       instruction on appeal. The instruction at issue in that case is very different from

       the one before us. The Burnside court noted:


               According to Burnside, the instruction resulted in fundamental
               error because: (1) the instruction erroneously merged the separate
               concepts of self defense and reckless homicide into a single
               concept of reckless self defense; and (2) the instruction,
               particularly paragraph D, only allowed the jury to find Burnside
               guilty of reckless homicide if it first found that he was acting in

       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 16 of 24
               self defense. The State correctly concedes that the instruction
               erroneously intermingled the concepts of self defense and reckless
               homicide and that paragraph D was erroneous. Under
               Paragraph D of the instruction, to find Burnside guilty of reckless
               homicide, the jury would have been required to find “the
               existence of the four essential elements of the charge of murder,”
               that Burnside was acting in self defense, and that Burnside was
               “acting in plain, conscious, and unjustifiable disregard of harm
               that might result and that the disregard involved a substantial
               deviation from acceptable standards of conduct.” However, as
               noted above, for the jury to find Burnside guilty of reckless
               homicide, it only needed to find that Burnside killed Williams by
               engaging in conduct in plain, conscious, and unjustifiable
               disregard of harm that might result and the disregard involved a
               substantial deviation from acceptable standards of conduct.
               Burnside argues, and we agree, that “by requiring a finding of
               self-defense as a precondition to a reckless homicide verdict, the
               instruction deprived Burnside of his right to have the jury
               consider his guilt on reckless homicide as a lesser-included
               offense.” We conclude that Burnside’s appellate counsel was
               deficient by failing to raise this issue because it was significant
               and obvious from the face of the record and was clearly stronger
               than the issues raised in Burnside’s direct appeal.


       Id. at 240-1 (internal citations and footnote omitted). Here, Final Jury

       Instruction 20 focused exclusively on the elements of self-defense.


[23]   Final Jury Instruction 20 can be better analyzed using Brown v. State, 498

       N.E.2d 1192 (Ind. 1986). In Brown, the trial court instructed the jury:


               If there is any evidence whether through testimony or physical
               fact that a defendant acted in defense of himself, then the State of
               Indiana must negate the defense beyond a reasonable doubt.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1608-PC-1911 | November 9, 2017   Page 17 of 24
               In summary, a claim of self-defense contains the following
               elements:


               The defendant must show that by not being the initial aggressor
               he acted without fault, or if with fault by being the initial
               aggressor or entering into combat with another person that he
               retreated to the legal limit; that the defendant honestly feared or
               actually was in real danger of death or great bodily harm; the
               force used as (sic) reasonably necessary to prevent serious bodily
               injury to himself.


               If the State disproves any of the above elements, it has sustained
               its burden and there is no self-defense claim, and if the State of
               Indiana does not prove beyond any reasonable doubt that this
               defendant did not act in self-defense, then you must acquit said
               defendant.


       Id. at 1194. Brown argued the words “defendant must show” impermissibly

       shifted the burden of proof. Id. Our Indiana Supreme Court held the language

       “cannot be construed to shift the burden of proof on the issue of self-defense, as

       it constitutes essentially a restatement of the case law addressing what a

       defendant must show to raise a valid claim of self-defense.” Id.


[24]   Thus, based on our Indiana Supreme Court’s holding in Brown, the trial court

       would not have sustained any objection based on the language indicating Mola

       “must have shown” the element of self-defense. (Record of Mola’s Trial

       Proceedings at 1558.) As Mola has not demonstrated the trial court would have

       sustained the objection he asserts trial counsel was ineffective for failing to

       make, we conclude he has not demonstrated his trial counsel was ineffective for

       failing to make that objection. See Glotzbach, 783 N.E.2d at 1224 (to
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       demonstrate trial counsel was ineffective for failing to make an objection, the

       petitioner must prove the objection would have been sustained).


                    4. Ineffective Assistance of Appellate Counsel
[25]   Claims of ineffective assistance of appellate counsel are reviewed using the

       same standard as claims of ineffective assistance of trial counsel. Taylor v. State,

       717 N.E.2d 90, 94 (Ind. 1999). These claims generally fall into three categories:

       (1) denying access to appeal; (2) waiver of issues; and (3) failure to present

       issues well. Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind. 1997), reh’g denied,

       cert. denied, 525 U.S. 1021 (1998). Relief is appropriate only when we are

       confident we would have ruled differently. Id. at 196. Because counsel is

       afforded considerable discretion in choosing strategy and tactics, we presume

       counsel’s assistance was adequate and all significant decisions were made in the

       exercise of reasonable professional judgment. State v. Miller, 771 N.E.2d 1284,

       1288 (Ind. Ct. App. 2002), reh’g denied, trans. denied. Deciding which issues to

       raise on appeal is one of the most important strategic decisions of appellate

       counsel. Bieghler, 690 N.E.2d at 193.


[26]   On appeal, Mola takes issue with the manner in which his appellate counsel,

       Marce Gonzalez, Jr., presented the argument on appeal. In Mola’s direct

       appeal, Gonzalez argued the trial court erred when it did not include an

       instruction for the lesser-included offense of involuntary manslaughter “because

       there was a serious evidentiary dispute (SED) as to whether Mola intended to

       kill or merely batter Elkins.” (Amended Br. of Appellant at 47.) Mola


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       contends Gonzalez should have instead argued about the trajectory of the

       wounds Mola inflicted on Elkins to prove he lacked the requisite intent to kill

       Elkins.


[27]   During his post-conviction hearing, Mola questioned Gonzalez at length,

       lobbing random cases with questionable relevancy at Gonzalez in an effort to

       show Gonzalez made a weak argument on appeal. Gonzalez testified he either

       knew about the case and often corrected Mola’s understanding of the holding,

       or indicated he knew the general concept contained in Mola’s case citations.

       Gonzalez has been “an appellate public defender since 1985, so twenty-nine

       years.” (Tr. at 62.) He indicated he did not argue about the trajectory of the

       wounds or Mola’s other proffered arguments for a variety of reasons including

       the lack of development of the argument at trial, the lack of evidence, and

       general appellate strategy.


[28]   The post-conviction court found, “appellate counsel made strong strategic

       decisions; Mola has not shown otherwise.” (App. Vol. V at 88.) We agree.

       Gonzalez explained at length his reasons for presenting the argument on appeal

       the way he did, including the fact certain issues Mola favored were not

       developed in the trial record or the fact that Mola’s understanding of what he

       considered to be important cases was flawed. Mola has not demonstrated his

       appellate counsel was ineffective. See Timberlake v. State, 753 N.E.2d 591, 606

       (Ind. 2001) (“‘a defendant must show from the information available in the trial

       record or otherwise known to appellate counsel that appellate counsel failed to

       present a significant and obvious issue and that this failure cannot be explained

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       by any reasonable strategy’”) (citation omitted), reh’g denied, cert. denied 537 U.S.

       839 (2002).


                   5. Court of Appeals Decision on Direct Appeal
[29]   When considering whether to revisit an earlier holding of this court, we apply

       the law of the case doctrine. State v. Huffman, 643 N.E.2d 899, 901 (Ind. 1994),

       reh’g denied. In Huffman, our Indiana Supreme Court explained:


               The law of the case doctrine mandates that an appellate court’s
               determination of a legal issue binds both the trial court and the
               court on appeal in any subsequent appeal involving the same case
               and relevantly similar facts. The doctrine’s admittedly important
               purpose is to minimize unnecessary relitigation of the legal issues
               once they have been resolved by an appellate court.


               With due respect for the doctrine of res judicata this Court has
               always maintained the option of reconsidering earlier cases in
               order to correct error. A court has the power to revisit prior
               decisions of its own or of a coordinate court in any circumstance,
               although as a rule courts should be loathe to do so in the absence
               of extraordinary circumstances such as where the initial decision
               was clearly erroneous and would work manifest injustice.


       Id. (internal citations and quotation marks omitted).


[30]   On direct appeal, Mola argued “the trial court abused its discretion when it

       denied Mola’s proposed jury instruction on the lesser-included offense of

       involuntary manslaughter.” Mola, 964 N.E.2d 316 at *1. Mola argued “there

       was a serious evidentiary dispute as to whether Mola intended to kill or merely

       batter Elkins.” Id. at *2. We held the trial court did not abuse its discretion

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       when it denied Mola’s proposed jury instruction on involuntary manslaughter

       because there was no serious evidentiary dispute regarding Mola’s intent based

       on case law stating “[k]nowing or intentional killing may be inferred from the

       use of a deadly weapon in a manner likely to cause death or great bodily

       injury.” Id. at *3. The evidence during Mola’s trial showed that,


               after Elkins pushed Mola’s barstool on his way to the parking lot,
               Mola deliberately loaded a round in his handgun in order to
               prepare it for shooting and ran after Elkins while brandishing the
               weapon. On his way outside, Mola resisted a bar employee’s
               efforts to discourage him from pursuing Elkins. Once Mola saw
               Elkins standing by Bannister’s vehicle in the parking lot, Mola
               pointed the handgun at Elkins and confronted Elkins by yelling,
               “[H]ey[,] [m*f*].” After Elkins asked Mola whether he was
               going to shoot him, Mola fired his gun twice at Elkins who was
               unarmed. The two shots were fired in “rapid” succession, and
               five witnesses testified that Elkins never advanced toward Mola
               before he fired the second shot.


               Both bullets struck Elkins in his abdomen, an area of the body
               that Mola testified he knew contained many vital organs, and
               Elkins died from the gunshot wounds. After the police arrived,
               Mola asked for the return of his own gun so that he could shoot
               himself because he did not want to go to jail. Mola told officers
               that he knew the shooting was not justified. While Mola testified
               that he never intended to kill Elkins, “[a] verbal denial of the
               requisite criminal intent does not ipso facto create a ‘serious
               evidentiary dispute.’”


       Id. (internal citations omitted).


[31]   Mola argues his case meets the extraordinary circumstances as stated in

       Huffman, as our court’s decision on his direct appeal was “clearly erroneous
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       and constitutes manifest injustice,” (Amended Br. of Appellant at 53), because

       “the record reflected sufficient evidence from which a jury could reasonably

       infer that Mola did not intentionally or knowingly kill Elkins. Clearly,

       believing all or even some of the aforementioned evidence would have militated

       against a conclusion of an intentional or knowing killing.” (Id. at 52.)


[32]   The post-conviction court concluded, “Mola’s final claim that the appellate

       court decided his appeal incorrectly and manifest injustice requires he should

       have a new trial is frivolous.” (App. Vol. V at 89.) We agree. Mola’s claim on

       appeal of the denial of his petition for post-conviction relief asks our court to

       reweigh evidence and judge the credibility of witnesses, which we cannot do in

       any relevant context. See Mahone, 742 N.E.2d at 984 (appellate court does not

       reweigh evidence on appeal from the denial of a post-conviction proceeding);

       see also Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (appellate court will not

       reweigh evidence in criminal appeal). There exist here no extraordinary

       circumstances from which manifest injustice would result.



                                               Conclusion
[33]   The post-conviction court did not abuse its discretion when it denied Mola’s

       request to hire a toxicologist at public expense because any testimony elicited

       from the toxicologist would be cumulative. Mola has waived his argument

       regarding the post-conviction court’s denial of his request to admit a medication

       guide for Prozac because he did not properly support his argument as required

       in the Indiana Rules of Appellate Procedure. Additionally, Mola has not

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       demonstrated he received ineffective assistance of trial or appellate counsel.

       Finally, he is not entitled to review of our decision in his direct appeal.

       Accordingly, we affirm the decision of the post-conviction court.


[34]   Affirmed.


       Barnes, J., and Bradford, J., concur.




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