MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Feb 11 2019, 10:53 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
Charles W. Gray                                          Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles W. Gray,                                         February 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PC-1705
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Steven J. Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G01-9810-PC-157515



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019                 Page 1 of 16
                                       Statement of the Case
[1]   Charles W. Gray appeals the post-conviction court’s denial of his petition for

      post-conviction relief. Gray raises four issues for our review, which we restate

      as the following two issues:


              1.       Whether the post-conviction court erred when it
                       concluded that Gray did not receive ineffective assistance
                       of trial counsel.


              2.       Whether the post-conviction court erred when it
                       concluded that Gray did not receive ineffective assistance
                       of appellate counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In February of 2000, a jury found Gray guilty of murder and robbery. The trial

      court entered its judgment of conviction against Gray and sentenced him to an

      aggregate term of seventy-three years. On direct appeal, the Indiana Supreme

      Court described the factual basis for Gray’s convictions and sentence as follows:


              The facts favorable to the judgment indicate that on September
              10, 1997, 93-year-old Earl Perry was severely beaten with his
              own cane in his home and had $200 taken from him. Mr. Perry
              later died from his injuries. Before dying, Mr. Perry gave an
              account of what had happened, including what the assailant had
              said to him prior to the assault. Mr. Perry related that the
              assailant stated that he was friends with “Wendell,” referring to
              Wendell Hart, a man whom Mr. Perry had hired in the past to
              perform chores for him. The assailant asked if Mr. Perry had any

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 2 of 16
              work for him, and when Mr. Perry said no, the assailant wrote a
              name and telephone number down on a post-it note pad. The
              assailant then began to beat Mr. Perry.


              Detective Mitchell was assigned the case and interviewed
              Wendell Hart in the Morgan County Jail. Hart told Detective
              Mitchell about a conversation Hart had with a man about Earl
              Perry; Hart later identified this man as Charles Gray. Detective
              Mitchell found Charles Gray in March of 1998 in the Marion
              County Jail. At that interview, Detective Mitchell took a sample
              of Gray’s handwriting and turned it into the Marion County
              Crime Lab for testing. Detective Mitchell later received notice
              that there were “similar characteristics” found in Gray’s
              handwriting and the handwriting of the post-it note from the
              crime scene. The crime lab requested more samples, and
              Detective Mitchell obtained a limited warrant in order to do this.
              The second set of handwriting samples confirmed that Charles
              Gray was the author of the post-it note.


      Gray v. State, 758 N.E.2d 519, 520-21 (Ind. 2001).


[4]   On direct appeal, Gray asserted that his convictions should be reversed

      “because the probable cause affidavit used to obtain [his] second set of

      handwriting samples was invalid.” Id. at 521. He also argued that the trial

      court had improperly refused to admit into evidence a polygraph examination

      of a police detective about another potential suspect, Robert Smith, whom Gray

      asserted may have been the true culprit. Id. at 522. And Gray challenged his

      sentence. Our Supreme Court affirmed Gray’s convictions and sentence.


[5]   In January of 2016, Gray filed an amended petition for post-conviction relief.

      In that petition, Gray alleged that he had received ineffective assistance from

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 3 of 16
      his two trial attorneys when they had failed to raise a number of objections.

      Gray also alleged that he had received ineffective assistance from his appellate

      counsel “when Appellate Counsel failed to raise every possible meritorious

      error,” namely, the alleged errors of his trial attorneys. Appellant’s App. Vol. 2

      at 68. After a fact-finding hearing, the post-conviction court entered findings of

      fact and conclusions of law in which it denied Gray’s petition for post-

      conviction relief. This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[6]   Gray appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review in such appeals is clear:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
              “When appealing the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. at 274. In order to prevail on an appeal from the
              denial of post-conviction relief, a petitioner must show that the
              evidence leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case entered findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[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



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 4 of 16
              that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (internal quotation omitted).


      Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).


                                         Issue One: Trial Counsel

[7]   Gray first asserts that the post-conviction court erred when it denied his petition

      because he received ineffective assistance of trial counsel. As our Supreme

      Court has made clear:


              When evaluating an ineffective assistance of counsel claim, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind.
              2009). To satisfy the first prong, “the defendant must show
              deficient performance: representation that fell below an objective
              standard of reasonableness, committing errors so serious that the
              defendant did not have the ‘counsel’ guaranteed by the Sixth
              Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)
              (citing Strickland, 466 U.S. at 687-88). To satisfy the second
              prong, “the defendant must show prejudice: a reasonable
              probability (i.e. a probability sufficient to undermine confidence
              in the outcome) that, but for counsel’s errors, the result of the
              proceeding would have been different.” Id. (citing Strickland, 466
              U.S. at 694).


      Id. at 682.


[8]   Gray alleges ineffective assistance from his trial attorneys on seven grounds.

      Each of the grounds is premised on his attorneys’ purported failures to object.

      “[I]n order to prevail on a claim of ineffective assistance due to the failure to

      object, the defendant must show a reasonable probability that the objection

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 5 of 16
      would have been sustained if made.” Garrett v. State, 992 N.E.2d 710, 723 (Ind.

      2013). Moreover, counsel is afforded considerable discretion in choosing

      strategy and tactics, and we will accord that decision deference. Lambert v.

      State, 743 N.E.2d 719, 730 (Ind. 2001). We address each of Gray’s seven

      arguments in turn.


                          Failure to Object to Handwriting Expert’s Testimony


[9]   First, Gray asserts that his trial attorneys ineffectively failed to object to certain

      testimony regarding the handwriting evidence. In particular, Gray asserts that

      two of the State’s witnesses offered “numerous conclusions” that went beyond

      helping the trier of fact to understand the evidence or to determine a fact in

      issue. Appellant’s Br. at 11 (citing Ind. Evidence Rule 702). Gray cites the

      following testimony as that to which his trial attorneys should have objected: a

      State witness testifying that handwriting analysis is a 100-year-old forensic

      science; the State’s handwriting expert testifying that she “concluded” Gray

      was the writer of the note found at the crime scene; that expert testifying that

      she had “positively” identified Gray as the author of the note; her testimony

      that she was “absolutely certain” that Gray wrote the note; and her testimony

      that she was “100 percent certain” that Gray wrote the note. Id. at 14; see R. of

      Proceedings Vol. 4 at 282;1 R. of Proceedings Vol. 5 at 6-7, 17.




      1
          Our pagination to the volumes of the original Record of Proceedings is based on the .pdg pagination.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019                 Page 6 of 16
[10]   In addressing Gray’s argument on this issue, the post-conviction court found as

       follows:


               A substantive review of the expert witness’s entire testimony
               reveals that her “conclusions” were simply the product of
               carefully explained expert opinions. Her opinions, conclusions[,]
               and qualifications were subjected to lengthy and aggressive cross-
               examination by defense counsel. As such, it is clear that[,] if
               Defendant’s trial counsel had raised the objection he now urges,
               such objection would not have been sustained. As such,
               Defendant has failed to meet his burden of proof.


       Appellant’s App. Vol. 2 at 131.


[11]   Gray’s argument on appeal merely repeats his complaints about the testimony

       of the State’s witnesses at trial. At no point does Gray argue that, had his trial

       attorneys objected as he now alleges they should have, that such an objection

       would have been sustained. Accordingly, Gray has not met his burden on

       appeal of demonstrating that the post-conviction court’s judgment is contrary to

       law on this issue.


                         References to the Victim’s Time and Place of Death


[12]   Second, Gray asserts that his trial attorneys ineffectively failed to object to

       testimony from a State witness, the victim’s daughter, that Perry had been killed

       in a chair in his home on the day of the attack when in fact Perry died from

       those injuries the next day at a hospital. On this issue, the post-conviction court

       found as follows:



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 7 of 16
               Defendant contends that the evidence shows that the victim died
               in a hospital the day after he was beaten in his home during a
               robbery[;] thus[,] the daughter lied when she said he was killed in
               his home. Defendant argues further that this harmed his case
               because the daughter’s testimony diverted the jury’s attention
               from possible intervening causes from poor medical care. On this
               issue, it is not necessary to discuss the issue of intervening
               causation because Defendant has presented no evidence on the
               issue. Additionally, . . . objecting and arguing with a woman
               whose elderly father has been beaten to death bore no direct or
               substantial relationship to the main thrust of the defense and was
               unlikely to have a positive effect on the jury. Thus, Defendant
               has failed to show his counsels’ alleged failure to act or choice of
               strategy harmed his case.


       Id. at 132.


[13]   On appeal, Gray asserts that “[w]hen the victim was transported to the hospital

       he merely had a cut on his ear and therefore his other injuries he apparently

       died from [were] the result of hospital treatment during and after transport.”

       Appellant’s Br. at 16. But the post-conviction court expressly found that Gray

       had “presented no evidence” in support of those assertions. Appellant’s App.

       Vol. 2 at 132. And Gray does not argue that the post-conviction court erred in

       that assessment, nor does he provide citations to the record on appeal to

       support his assertions. Accordingly, Gray has not met his burden on appeal of

       demonstrating that the post-conviction court’s judgment is contrary to law on

       this issue.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 8 of 16
                                             Autopsy Photographs


[14]   Third, Gray asserts that his trial attorneys “failed to object to the Medical

       Examiner’s manipulated autopsy photos . . . .” Appellant’s Br. at 17.

       According to Gray, the autopsy photographs admitted into evidence “had been

       manipulated and were not originals . . . .” Id. In particular, Gray asserts that

       “[t]hese photographs were not accurate and had been magnified making the

       wounds appear to be much worse than they actually appeared. These

       photographs further reflected damage to the wounds cause[d] by the Medical

       Examiner . . . .” Id. at 18.


[15]   On this issue, the post-conviction court found as follows:


               Defendant does not provide any legal basis for an objection to
               [these] photographs. The photographs were not gratuitously
               gruesome and they were specifically related to the coroner’s
               testimony. Consequently, there would have been no basis for an
               objection along the lines Defendant contends and he has again
               failed to meet his burden of proof.


       Appellant’s App. Vol. 2 at 132.


[16]   On appeal, Gray asserts that his attorneys should have objected to the autopsy

       photographs under Indiana Evidence Rules 1001 to 1004. But Gray presents no

       cogent argument on appeal that any such objection, if made, would have been

       sustained. Accordingly, Gray has not met his burden on appeal of

       demonstrating that the post-conviction court’s judgment is contrary to law on

       this issue.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 9 of 16
                                                Jury Instructions


[17]   Fourth, Gray asserts that his attorneys should have objected to the jury

       instructions. In particular, Gray asserts that his attorneys should have objected

       to two instructions that told the jurors they “should” find Gray either guilty or

       not guilty depending on whether the State did or did not meet its burden of

       proof. Appellant’s Br. at 19. Gray asserts that “should” in this context was

       required to have been “must.” Id.


[18]   On this issue, the post-conviction court found as follows:


               This is one our appellate courts have repeatedly addressed. In
               reviewing this issue, appellate courts have repeatedly held that
               using “should” is appropriate when other instruction[s] also
               inform the jury as to the elements of the crime and as [to] their
               duties as triers of facts. In this case, the jury was properly
               instructed as to its role and as to the law and Defendant has
               failed to demonstrate[] that the trial court’s instructions were
               erroneous; as such, any objection to the instructions would have
               been overruled and Defendant’s trial counsels were not
               ineffective for failing to make a baseless objection.


       Appellant’s App. Vol. 2 at 133-34 (citations omitted).


[19]   On appeal, Gray simply asserts that he “disagrees” with the post-conviction

       court’s analysis. Appellant’s Br. at 20. But we don’t. E.g., Burgett v. State, 758

       N.E.2d 571, 577-78 (Ind. Ct. App. 2001), trans. denied. And Gray does not

       suggest on appeal that the jury instructions as a whole diminished the State’s

       burden of proof. See id. Accordingly, Gray has not met his burden on appeal of


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 10 of 16
       demonstrating that the post-conviction court’s judgment is contrary to law on

       this issue.


                                               Alleged Brady Violation


[20]   Fifth, Gray asserts that his trial attorneys “failed to object to the State’s Brady

       violation for failing to turn over full and complete medical records concerning

       the victim . . . .”2 Appellant’s Br. at 20. As we have explained:


                 In Brady v. Maryland, the United States Supreme Court held that
                 “the suppression by the prosecution of evidence favorable to the
                 accused upon request violates due process where the evidence is
                 material either to guilt or to punishment, irrespective of the good
                 faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963).
                 “To prevail on a Brady claim, a defendant must establish: (1) that
                 the prosecution suppressed evidence; (2) that the evidence was
                 favorable to the defense; and (3) that the evidence was material to
                 an issue at trial.” Minnick v. State, 698 N.E.2d 745, 755 (Ind.
                 1998) (citing Brady, 373 U.S. at 87). Evidence is material under
                 Brady “only if there is a reasonable probability that, had the
                 evidence been disclosed to the defense, the result of the
                 proceeding would have been different. A ‘reasonable probability’
                 is a probability sufficient to undermine confidence in the
                 outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).
                 However, the State will not be found to have suppressed material
                 evidence if it was available to a defendant through the exercise of
                 reasonable diligence. Conner v. State, 711 N.E.2d 1238, 1246
                 (Ind. 1999). “Favorable evidence” includes both exculpatory
                 evidence and impeachment evidence. See Prewitt v. State, 819
                 N.E.2d 393, 401 (Ind. Ct. App. 2004), trans. denied. Suppression




       2
           Gray attempted to subpoena Perry’s medical records, but the post-conviction court denied his requests.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019                Page 11 of 16
               of Brady evidence is constitutional error warranting a new trial.
               Turney v. State, 759 N.E.2d 671, 675 (Ind. Ct. App. 2001), trans.
               denied.


       Bunch v. State, 964 N.E.2d 274, 297-98 (Ind. Ct. App. 2012), trans. denied.


[21]   The post-conviction court found as follows:


               On this point, Defendant has again failed to meet his burden of
               proof. Defendant contends that through pretrial discovery the
               State produced 61 pages of the victim’s medical records.
               Defendant nevertheless claims that more than [100] documents
               exist concerning the treatment of the victim and argues that the
               “missing documents” are “believe[d ]to have exculpatory
               evidence that could have been used to impeach the State’s expert
               witnesses on the stand under oath.” The evidence produced in
               the post-conviction proceedings provide no basis for Defendant’s
               claim . . . and there is no basis for the claim that such records, if
               they existed, were exculpatory. Without properly admitted proof
               of suppressed material evidence there can be no finding of a
               Brady violation and, by extension, no basis for a claim of
               ineffective assistance of trial counsel on this issue.


       Appellant’s App. Vol. 2 at 134-35 (citation omitted).


[22]   On appeal, Gray baldly asserts that “[i]t can be proven that over [100]

       documents exist concerning the treatment of the victim” and that such

       documents “are believe[d] to have exculpatory evidence . . . .” Appellant’s Br.

       at 21. Gray cites no support in the record for his assertions. Nor does he assert

       that the post-conviction court erred when it denied his request to subpoena

       Perry’s medical records. Nor does he assert that this evidence was not available

       to his trial attorneys through the exercise of due diligence, or that they acted
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 12 of 16
       ineffectively in not obtaining that evidence at that time. Accordingly, Gray has

       not met his burden on appeal of demonstrating that the post-conviction court’s

       judgment is contrary to law on this issue.


                                       Reckless Homicide Instruction


[23]   Sixth, Gray asserts that his trial attorneys ineffectively failed to request a jury

       instruction on reckless homicide as a lesser-included offense to murder. In

       particular, Gray argues that “counsel[s’] thinking was ineffective because[,] if

       the jury decided he was the one who did this crime, they should have had an

       opportunity to decide if it was Reckless Homicide or Murder” as “[t]he

       evidence proves that the [attack] was in an attempt to escape and nothing else,

       which lacks [the] mens rea for murder . . . .” Appellant’s Br. at 22-23.


[24]   On this issue, the post-conviction court found as follows:


               trial counsel’s testimony at the evidentiary hearing established
               that the defense strategy was that Defendant was not the one
               who committed the crime and the only issue at trial was
               identification. Trial counsel stated that . . . it was likely that she
               felt that arguing for a sub-theme of reckless homicide would have
               been illogical and counter-productive.


       Appellant’s App. Vol. 2 at 135-36.


[25]   Gray’s argument on appeal does not address the post-conviction court’s finding

       that his attorneys acted reasonably in not asking for a reckless-homicide

       instruction in light of the defense strategy of arguing that Gray was innocent.

       And we will not second-guess a trial counsel’s reasonable trial strategies.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 13 of 16
       Accordingly, Gray has not met his burden on appeal of demonstrating that the

       post-conviction court’s judgment is contrary to law on this issue.


                                              Autopsy Testimony


[26]   Seventh, Gray asserts that his trial attorneys ineffectively failed to object when

       the State called a pathologist who did not perform Perry’s autopsy to testify

       about that autopsy. On this issue, the post-conviction court found as follows:


               when question about the failure to object when Dr. Clark testified
               rather than the doctor who actually performed the autopsy, trial
               counsel stated that the defense was not contesting the injuries,
               the cause of death, or any other medical evidence. . . . Such
               tactical decisions do not support a finding of ineffective
               assistance and Defendant’s claims against his trial counsel fail.


       Id. at 136.


[27]   On appeal, Gray asserts that the post-conviction court erred because the failure

       to properly object “denied [Gray] his right to confront his accuser” and, had the

       pathologist who performed the autopsy testified instead, “it would have proven

       reckless homicide . . . .” Appellant’s Br. at 25. But, again, Gray does not

       actually address the post-conviction court’s judgment that Gray’s trial attorneys

       employed a reasonable strategy on this issue in light of Gray’s defense of

       innocence. Accordingly, Gray has not met his burden on appeal of

       demonstrating that the post-conviction court’s judgment is contrary to law on

       this issue. We cannot say that the post-conviction court erred when it

       concluded that Gray did not receive ineffective assistance of trial counsel.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 14 of 16
                                       Issue Two: Appellate Counsel

[28]   Gray next argues on appeal that he received ineffective assistance from his

       appellate counsel when his appellate counsel did not raise on direct appeal the

       seven above issues. Appellant’s Br. at 27-28. As we have explained:


               As with trial counsel, to establish that appellate counsel rendered
               ineffective assistance, a petitioner must show appellate counsel
               was deficient in performance and that the deficiency resulted in
               prejudice. Ritchie v. State, 875 N.E.2d 706, 723 (Ind. 2007).
               However, appellate and trial counsel have different tasks, which
               result in different kinds of deficient performance and prejudice.
               Thus, when the alleged error is that appellate counsel failed to
               raise issues, prejudice is based on “whether the issues appellate
               counsel failed to raise would have been clearly more likely to
               result in reversal or an order for a new trial.” Id. at 724.
               Accordingly, there is no prejudice created by appellate counsel’s
               failure to raise an unpreserved issue that does not result in
               fundamental error because the issue would not have been clearly
               more likely to result in reversal or an order for a new trial. Put
               another way, if an unpreserved error is found not to be
               fundamental, then appellate counsel cannot be ineffective for
               failing to raise it.


       Benefield v. State, 945 N.E.2d 791, 802-03 (Ind. Ct. App. 2011).


[29]   As none of those seven issues Gray complains of were objected to at trial,

       Gray’s appellate counsel would have had to raise them on direct appeal as

       issues of fundamental error. Id. However, on appeal from the post-conviction

       court’s adverse judgment, Gray simply asserts that the “unraised issues are

       significant and obvious from the face of the record” and are “clearly stronger

       than the raised issues.” Appellant’s Br. at 27. We conclude that Gray’s bald

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 15 of 16
       assertions are not sufficient to show that any of his seven claims of fundamental

       error, an “extremely narrow” basis for appellate relief, would have been

       stronger than the claims actually raised by his appellate counsel on direct

       appeal. See Durden v. State, 99 N.E.3d 645, 653 (Ind. 2018). Accordingly, Gray

       has not met his burden on appeal of demonstrating that the post-conviction

       court’s judgment is contrary to law on this issue. We affirm the post-conviction

       court’s conclusion that Gray did not receive ineffective assistance of appellate

       counsel.


                                                 Conclusion
[30]   In sum, we affirm the post-conviction court’s judgment.


[31]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1705 | February 11, 2019   Page 16 of 16
