MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
                                                                Mar 28 2018, 6:05 am
regarded as precedent or cited before any
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
John Pinnow                                              James B. Martin
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David Barbee,                                            March 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1707-PC-1555
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Stanley E. Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-0706-PC-113806



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018    Page 1 of 24
                               Case Summary and Issues
[1]   Following a jury trial, David Barbee was found guilty of murder, a felony, and

      carrying a handgun without a license, a Class A misdemeanor. The trial court

      sentenced Barbee to an aggregate sentence of sixty-one years executed in the

      Indiana Department of Correction. On direct appeal, we affirmed Barbee’s

      convictions. Barbee v. State, No. 49A04-0907-CR-370 (Ind. Ct. App. Sept. 18,

      2013), trans. denied. Thereafter, Barbee filed a petition for post-conviction relief

      wherein he alleged ineffective assistance of trial and appellate counsel, which

      the post-conviction court denied. Barbee now appeals, raising two issues for

      our review: (1) whether the post-conviction court erred in concluding Barbee’s

      trial counsel was not ineffective, and (2) whether the post-conviction court erred

      in concluding Barbee’s appellate counsel was not ineffective. Concluding

      Barbee did not receive ineffective assistance of trial or appellate counsel, we

      affirm.



                            Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in Barbee’s direct

      appeal:


              On June 15, 2007, David Barbee shot and killed David
              Kimbrough while Kimbrough sat on Letroy Burks’ porch. On
              the porch at the time of the shooting were Burks, Kimbrough’s
              girlfriend Brandi Arnwine, Kimbrough’s sister and Burks’s
              girlfriend Lakeisha Kimbrough, Burks’ cousin Brandon Tyler,
              and Anniya Willis and her young daughter.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 2 of 24
        Barbee lived nearby, and he had driven past Burks’ porch three
        times while Kimbrough and his companions were present.
        Sometime later, Barbee approached Burks’ porch, used vulgarity,
        and stated “what did I tell you about coming out south,” and
        “you think I’m playing?” Barbee’s comments appeared to be
        directed at Tyler. Barbee then pulled out a gun and fired a shot,
        which killed Kimbrough.


        Anthony Hampton, who was walking next to Burks’ house at the
        time of the shooting, testified he saw a man on the porch raise
        the gun and point it at Barbee, who was standing in the street.
        The gun appeared to misfire, and then Barbee raised and fired his
        gun. Barbee walked up the porch ramp and pointed the gun at
        Arnwine and Burks. Burks told Barbee “Man, you tripping, man.
        You shot my dude for nothing.” Barbee looked at Kimbrough
        lying in the grass, looked back at Burks, and then walked away.


        Barbee was charged with and convicted of murder and Class C
        felony carrying a handgun without a license. Barbee filed a
        Motion to Correct Error and Set Aside Judgment, which was
        denied. Barbee filed his second Motion to Correct Error, arguing
        inter alia he was entitled to a new trial because Arnwine had
        recanted her earlier testimony that she did not see Tyler with a
        gun. That motion was also denied.


Id. at *1. The trial court sentenced Barbee to an aggregate term of sixty-one

years and Barbee appealed, raising three issues for our review: (1) whether the

trial court should have granted Barbee’s second Motion to Correct Error based

on newly discovered evidence from one of the State’s witnesses; (2) whether

comments in closing argument were fundamental error when the prosecutor

implied that a witness testified as she did because she was afraid of Barbee; and

(3) whether the trial court committed fundamental error by instructing the jury

Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 3 of 24
      on voluntary manslaughter. We affirmed Barbee’s convictions. In 2014,

      Barbee filed a petition for post-conviction relief, alleging ineffective assistance

      of trial and appellate counsel, which the post-conviction court denied on July 5,

      2017. Barbee now appeals the denial of post-conviction relief.



                                 Discussion and Decision
                                     I. Standard of Review
[3]   Post-conviction proceedings are civil in nature and the petitioner must therefore

      establish his claims by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5). These proceedings, however, are not an opportunity for a super-

      appeal. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537

      U.S. 839 (2002). “The post-conviction court is the sole judge of the weight of

      the evidence and the credibility of witnesses.” Woods v. State, 701 N.E.2d 1208,

      1210 (Ind. 1998). Thus, we may not reweigh the evidence or reassess the

      credibility of the witnesses and we consider only the evidence and reasonable

      inferences supporting the judgment. Hall v. State, 849 N.E.2d 466, 468-69 (Ind.

      2006). The petitioner must show that the evidence is without conflict and leads

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

      conviction court. Strowmatt v. State, 779 N.E.2d 971, 975 (Ind. Ct. App. 2002).


[4]   Where, as here, the post-conviction court makes findings of fact and

      conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we

      cannot affirm the judgment on any legal basis, but rather, we must determine if

      the court’s findings are sufficient to support its judgment. Graham v. State, 941
      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 4 of 24
      N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff'd on reh’g, 947 N.E.2d 962. We

      accept the post-conviction court’s findings of fact unless they are clearly

      erroneous, but we do not defer to the post-conviction court’s conclusions of

      law.1 Wilson v. State, 799 N.E.2d 51, 53 (Ind. Ct. App. 2003).


          II. Ineffective Assistance of Trial and Appellate Counsel
                                       A. Standard of Review
[5]   Barbee claims the post-conviction court erred in concluding his trial and

      appellate counsel were not ineffective. Specifically, he claims he was denied the

      effective assistance of trial counsel when counsel failed to object to final jury

      instruction 23 and failed to call James Williams as a defense witness. Barbee

      also claims he was denied the effective assistance of appellate counsel when

      appellate counsel failed to argue that the error in final jury instruction 23 was

      fundamental error.


[6]   The standard for ineffective assistance of both trial and appellate counsel is the

      same. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). We review claims of

      ineffective assistance of counsel under the two-prong test set forth in Strickland

      v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, the petitioner

      must show 1) his counsel’s performance was deficient, and 2) the lack of

      reasonable representation prejudiced him. Id. at 687. These two prongs are



      1
       Although we do not defer to the post-conviction court’s conclusions of law, we commend the post-
      conviction court for its thorough and well-reasoned Findings of Fact and Conclusions of Law Denying Post-
      Conviction Relief, which has aided our review of this case.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018         Page 5 of 24
      separate and independent inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind.

      Ct. App. 2014), trans. denied, cert. denied, 135 S.Ct. 2376 (2015). Therefore, “if it

      is easier to dispose of an ineffectiveness claim on one of the grounds instead of

      the other, that course should be followed.” Talley v. State, 736 N.E.2d 766, 769

      (Ind. Ct. App. 2000).


[7]   The first prong requires that the petitioner show counsel’s representation fell

      below an objective standard of reasonableness and that counsel committed

      errors so serious that petitioner did not have “counsel” as guaranteed by the

      Sixth Amendment of the United States Constitution. Garrett, 992 N.E.2d at

      719. To satisfy the second prong, the petitioner must show a reasonable

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

      have been different. Id. “A reasonable probability is a probability sufficient to

      undermine confidence in the outcome.” Strickland, 466 U.S. at 694.


[8]   We afford counsel “considerable discretion in choosing strategy and tactics, and

      we will accord those decisions deference.” Timberlake, 753 N.E.2d at 603. We

      also recognize a strong presumption that counsel rendered adequate legal

      assistance. Id. The defendant must offer “strong and convincing evidence to

      overcome this presumption.” Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App.

      2005), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 6 of 24
                                            B. Trial Counsel
[9]    Barbee argues the post-conviction court erred in concluding his trial counsel

       was not ineffective because his trial counsel failed to object to final jury

       instruction 23 and failed to call a potential witness.


                                            1. Instructional Error

[10]   First, Barbee alleges that his trial counsel should have objected to final jury

       instruction 23. Relevant here, the trial court provided the following final jury

       instructions:


               As to these instructions on the law, read to you by the Court, and
               which you will be allowed to take to the jury room with you, it is
               impractical to embody all applicable law in any one instruction.
               So in considering any one instruction, you should construe it in
               connection with, and in light of, every other instruction given.


               [Final jury instruction 23] The defendant is charged with Murder.
               Voluntary Manslaughter and Reckless Homicide are included in
               Count I, Murder. If the State proves the defendant guilty of Murder,
               you need not consider the included crimes. However, if the State fails
               to prove the defendant committed Murder, you may consider
               whether the defendant committed Voluntary Manslaughter or
               Reckless Homicide, which the Court will define for you.


               You must not find the defendant guilty of more than one crime
               for each count.


               The crime of Murder is defined by law as follows: A person who
               knowingly or intentionally kills another human being commits
               Murder, a felony. [End of final jury instruction 23]


       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 7 of 24
        Included in the charge in this case is the crime of Voluntary
        Manslaughter, which is defined by the statute as follows: A
        person who knowingly or intentionally kills another human being
        while acting under sudden heat commits Voluntary
        Manslaughter, a Class B felony. The offense is a Class A felony
        if it’s committed by means of a deadly weapon.


        Sudden heat is a mitigating factor that reduces what otherwise
        would be Murder to Voluntary Manslaughter. The State has the
        burden of proving beyond a reasonable doubt that the defendant
        was not acting under sudden heat.


        Before you may convict the defendant, the State must have
        proved each of the following beyond a reasonable doubt: (l) the
        defendant, David Barbee, (2) knowingly, (3) killed, (4) another
        human being, namely: David Kimbrough, by shooting a deadly
        weapon, that is: A handgun, at and against the person of David
        Kimbrough, thereby inflicting mortal injuries upon David
        Kimbrough, causing David Kimbrough to die, (5) and the
        defendant was not acting under sudden heat, (6) and the
        defendant killed by means of a deadly weapon.


        If the State failed to prove each of the elements 1 through 4
        beyond a reasonable doubt, you must find the defendant not
        guilty of Murder as charged in Count I.


        If the State did prove each of the elements 1 through 4 and
        element 6 beyond a reasonable doubt, but the State failed to
        prove beyond a reasonable doubt element 5, you may find the
        defendant guilty of Voluntary Manslaughter, a Class A felony, a
        lesser included offense of Count I.


        If the State did prove each of the elements 1 through 5 beyond a
        reasonable doubt, you may find the defendant guilty of Murder, a
        felony, as charged in Count I.

Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 8 of 24
               Included in the charge in this case is the crime of Reckless
               Homicide, which is defined by the statute as follows: A person
               who recklessly kills another human being commits Reckless
               Homicide, a Class C felony.


               Before you may convict the defendant, the State must have
               proved each of the following elements: (1) the defendant, David
               Barbee, (2) recklessly, (3) killed, (4) another human being,
               namely: David Kimbrough, by shooting a deadly weapon, that is:
               A handgun, at and against the person of David Kimbrough,
               thereby inflicting mortal injuries upon David Kimbrough,
               causing David Kimbrough to die.


               If the State failed to prove each of the elements beyond a
               reasonable doubt, you must find the defendant not guilty of
               Reckless Homicide as included in Count I.


               If the State did prove each of the elements beyond a reasonable
               doubt, you may find the defendant guilty of Reckless Homicide,
               a Class C felony, as included in Count I.


       Exhibits at 29-33 (emphasis added).


[11]   Barbee alleges there was a sequencing error regarding the sentence in final jury

       instruction 23 that provides, “If the State proves the defendant guilty of Murder,

       you need not consider the included crimes.” Id. at 30. Specifically, Barbee

       contends that the sentence “erroneously precluded the jury from considering

       voluntary manslaughter if they found Barbee committed a knowing killing even

       though voluntary manslaughter (Ind. Code 35-42-1-3) and murder (Ind. Code

       35-42-1-1(1)) have the same elements—a knowing or intentional killing of

       another person.” Brief of Petitioner-Appellant at 21. Barbee further alleges that

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 9 of 24
       although “[t]rial counsel Caudill did not see the error at the time of trial … [h]e

       now agrees the instruction was erroneous and the failure to object to it was a

       glaring error.” Id. This failure to object, Barbee contends, constituted deficient

       performance.


[12]   Assuming for the purposes of this appeal that trial counsel’s failure to object to

       the instruction constituted deficient performance, Barbee fails to carry his

       burden to show that but for counsel’s failure to object, there is a reasonable

       probability that the outcome of his trial would have been different. See Benefield

       v. State, 945 N.E.2d 791, 805 (Ind. Ct. App. 2011). Our supreme court has

       previously explained:


               When determining whether a defendant suffered a due process
               violation based on an incorrect jury instruction, we look not to
               the erroneous instruction in isolation, but in the context of all
               relevant information given to the jury, including closing
               argument, and other instructions. There is no resulting due
               process violation where all such information, considered as a
               whole, does not mislead the jury as to a correct understanding of
               the law.


       Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002) (citations omitted).


[13]   Here, although one sentence in final jury instruction 23 is potentially confusing,

       we conclude that all the information provided to the jury, considered as a

       whole, did not mislead the jury as to a correct understanding of the law. First,

       the trial court expressly informed the jury that “in considering any one

       instruction, you should construe it in connection with, and in light of, every


       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 10 of 24
other instruction given.” Exhibits at 29-30. Second, final jury instruction 24,

the instruction that immediately followed the instruction about which Barbee

complains, correctly explained the relevant law:


        Included in the charge in this case is the crime of Voluntary
        Manslaughter, which is defined by the statute as follows: A
        person who knowingly or intentionally kills another human being
        while acting under sudden heat commits Voluntary
        Manslaughter, a Class B felony. The offense is a Class A felony
        if it’s committed by means of a deadly weapon.


        Sudden heat is a mitigating factor that reduces what otherwise
        would be Murder to Voluntary Manslaughter. The State has the
        burden of proving beyond a reasonable doubt that the defendant was not
        acting under sudden heat.


Id. at 30-31 (emphasis added). And third, in the words of the post-conviction

court, trial counsel “correctly and thoroughly explained [the law] to the jury,”

Appealed Order at 17, in closing arguments:


        I want to kind of go through the elements of murder with you
        and sort of lay out how you have to evaluate the different
        charges, because you’re going to have murder, voluntary
        manslaughter, reckless homicide, and then, of course, not guilty
        at the bottom. Okay?


        So what you’re going to have, for Mr. Barbee to be guilty of
        murder, Mr. Barbee knowingly killed David Kimbrough. That
        means when he fired that shot, he was aware of a high
        probability that David Kimbrough was going to die. That’s what
        they’ve got to prove. Okay?



Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 11 of 24
               If they prove all those things to you, you’re still not done,
               because then you have to consider whether or not Mr. Barbee
               acted in sudden heat, whether or not he was inflamed by anger,
               and that’s why he reacted the way he did. The State has the
               burden of disproving that beyond a reasonable doubt.


               I know it’s going to get complex. So you go through those
               elements of murder, and you see if they’re all there. If they’re
               not, well, then you don’t have to even consider voluntary
               manslaughter, because you’ve got to have all the elements of
               murder first. Okay?


               You go through the elements of murder. If they’re all there, then
               you have to ask yourself did he act in sudden heat, and did the
               State disprove that beyond a reasonable doubt. So they have to
               prove to you that he did not act in sudden heat.


               If they failed -- if they met the burden on all the elements of
               murder, but failed on the sudden heat, then it’s voluntary
               manslaughter. Okay?


               Now, as you’re going through those elements of murder and you
               decide they didn’t meet all of those elements, then you have to
               consider reckless homicide. That’s the next step. Okay? . . .


       [Trial] Transcript, Volume II at 487-88. Whether counsel properly stated the

       law in closing argument can impact whether an instructional error is harmless.

       Rosales v. State, 23 N.E.3d 8, 16 (Ind. 2015).


[14]   In light of all of the information provided to the jury, we conclude that Barbee

       was not denied fundamental due process. That, however, does not end our

       inquiry into whether Barbee was prejudiced by trial counsel’s ineffective

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 12 of 24
       assistance. In Boesch, upon which we rely for the foregoing standard, the

       petitioner claimed that an erroneous jury instruction rose to the level of

       fundamental error. 778 N.E.2d at 1279. The “fundamental error” rule is

       extremely narrow, and applies only when the error constitutes a blatant

       violation of basic principles, the harm or potential for harm is substantial, and

       the resulting error denies the defendant fundamental due process. Benson v.

       State, 762 N.E.2d 748, 755 (Ind. 2002). But, we have explained that although

       the standards for fundamental error and prejudice for ineffective assistance of

       trial counsel “may frequently lead to the same result, the analyses are different”

       and present “two substantively different questions.” Benefield, 945 N.E.2d at

       803-05. Thus, we must consider whether counsel’s failure to object to final jury

       instruction 23 prejudiced Barbee—rather than simply deeming the error

       insufficient to constitute fundamental error.


[15]   On appeal, Barbee relies upon Roberson v. State, where we found ineffective

       assistance of trial counsel, for the proposition that the erroneous jury instruction

       rendered trial counsel’s performance deficient and that he suffered resulting

       prejudice. 982 N.E.2d 452 (Ind. Ct. App. 2013). In Roberson, the petitioner

       argued:


               the murder and voluntary manslaughter instructions were
               erroneous both because they effectively precluded the jury from
               considering whether [the petitioner] committed voluntary
               manslaughter if the State proved the basic elements of murder,
               i.e. knowingly killing [the victim], and because they erroneously
               placed the burden on the State of proving the existence of sudden
               heat beyond a reasonable doubt.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 13 of 24
       Id. at 455-56. We, as did the post-conviction court, find Roberson easily

       distinguishable.


[16]   First, the jury in Roberson was twice incorrectly informed by the trial court’s jury

       instructions that sudden heat was an element of voluntary manslaughter and

       that the State bore the burden of proving the existence of sudden heat. Id. at

       459. Here, the jury was correctly informed that sudden heat was a mitigating

       factor that reduces what otherwise would be murder to voluntary manslaughter

       and that the State bore the burden of disproving its existence. Exhibits at 30.

       Second, the trial court in Roberson instructed the jury, “If the State proves the

       Defendant guilty of Murder, you must not consider the included crimes[,]”982

       N.E.2d at 458, rather than the “need not consider” language present here,

       Exhibits at 30. Although at first glance this appears to make no meaningful

       difference, the former expressly prohibits the jury from proceeding to consider

       voluntary manslaughter, having already been incorrectly informed regarding

       sudden heat and its relation to a murder conviction. Here, because the jury was

       correctly instructed, we share no such dilemma. And thirdly, in Roberson,

       “neither party explained the proper burden of proof to the jury during their

       closing arguments.” Roberson, 982 N.E.2d at 461. Whereas here, as discussed

       above, trial counsel “correctly and thoroughly explained to the jury,” the

       elements of the crimes and the corresponding burden of proof. Appealed Order

       at 17.


[17]   Moreover, on direct appeal, we concluded that the trial court should not have

       instructed the jury on voluntary manslaughter because our review of the record

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 14 of 24
       revealed no evidence to support “sudden heat.” Barbee, No. 49A04-0907-CR-

       370 at *5. There, Barbee presented the argument that the trial court committed

       fundamental error by giving the voluntary manslaughter instruction because he

       was deprived of his “all-or-nothing” trial strategy by the instruction. The State

       agreed, but argued that the error was harmless. To the extent that Barbee now

       invites us to revisit that decision and find evidence of sudden heat, we must

       decline for reasons of res judicata. See Ben-Yisrayl v. State, 738 N.E.2d 253, 258

       (Ind. 2000) (noting that, as a general rule, when a court decides an issue on

       direct appeal, the doctrine of res judicata applies, thereby precluding its review

       in post-conviction proceedings), cert. denied, 534 U.S. 1164 (2002).


[18]   Considering our decision on direct appeal, the totality of the final jury

       instructions, and trial counsel’s closing argument, we cannot say that Barbee

       showed a reasonable probability that, but for trial counsel’s errors, the result of

       his trial would have been different. Garrett, 992 N.E.2d at 719. “Generally,

       errors in the giving or refusing of instructions are harmless where a conviction is

       clearly sustained by the evidence and the jury could not properly have found

       otherwise.” Matheny v. State, 983 N.E.2d 672, 681 (Ind. Ct. App. 2013)

       (quotation omitted), trans. denied. We therefore conclude the post-conviction

       court did not err in finding trial counsel was not ineffective with respect to the

       jury instructions.


                                         2. Failure to Call Witness

[19]   Next, Barbee claims his trial counsel was ineffective for failing to call James

       Williams as a witness at trial. Specifically, Barbee claims that Williams’
       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 15 of 24
       testimony would have supported a defense that the shooting was accidental

       thereby resulting in a conviction for reckless homicide as opposed to murder.

       In turn, the State argues Barbee has “offered nothing to rebut the presumption

       that his trial [counsel] made a reasonable strategic decision not to offer

       Williams as a witness.” Brief of Appellee at 17. Again, we agree with the

       State.


[20]   “A decision regarding what witnesses to call is a matter of trial strategy which

       an appellate court will not second-guess, although a failure to call a useful

       witness can constitute deficient performance.” Brown v. State, 691 N.E.2d 438,

       447 (Ind. 1998) (citation omitted). Choosing which witnesses to call “is the

       epitome of a strategic decision.” Wisehart v. State, 693 N.E.2d 23, 48 n.26 (Ind.

       1998), cert. denied, 526 U.S. 1040 (1999). And we will not find counsel

       ineffective for failure to call a particular witness absent a clear showing of

       prejudice. Ben-Yisrayl v. State, 729 N.E.2d 102, 108 (Ind. 2000), cert. denied, 534

       U.S. 830 (2001).


[21]   When an ineffective assistance of counsel claim alleges the failure to present

       witnesses, the petitioner must offer evidence as to who the witnesses were and

       what their testimony would have been. Lee v. State, 694 N.E.2d 719, 722 (Ind.

       1998), cert. denied, 525 U.S. 1023 (1998). At the post-conviction hearing, Barbee

       presented the testimony of Williams, a childhood friend and sometime

       employee. Williams testified that he was working for Barbee at the time of the

       murder in a house which happened to be across the street from Burks’ house.

       He testified:

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 16 of 24
        [Williams]: Well, when I was in the house doing the work, Mr.
                    Barbee was actually in the house with me. He had –
                    he was leaving to go get some materials or
                    something and as he left, I was in there working and
                    heard a bunch of arguing and stuff, so I looked
                    outside and I seen Mr. Barbee arguing with
                    Brandon.


        [Counsel]:       Do you know Brandon’s last name?


        [Williams]: Uh, I don’t.


        [Counsel]:       Possibly Brandon Tyler?


        [Williams]: Yes.


        [Counsel]:       Did you see anybody else?


        [Williams]: Uh, yes, I did. I’d say it was a porch full of people. I
                    can’t name all names because I don’t know all of
                    them, but yes.


        [Counsel]:       Could you describe who else was – I mean, were
                         there both males and females there?


        [Williams]: Yes.


        [Counsel]:       How far away were you from the porch full of people?


        [Williams]: Uh, maybe about 15, 20 feet, maybe.


        [Counsel]:       Were you across the street?


Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 17 of 24
        [Williams]: Correct.


        [Counsel]:       What did you see happen on the porch?


        [Williams]: Well, I heard arguing and then I heard the guy,
                    Brandon – I seen the guy Brandon reaching in his
                    pants as to pull out a gun. And when I seen him
                    pull out the gun, I seen Mr. Barbee reach for a gun,
                    and I started to back up away from the window.
                    And as I was backing up away from the window, I
                    heard Mr. Barbee’s gun go off as he was trying to
                    pull it out of his pants.


        [Counsel]:       Did you see Mr. Tyler fire any shots?


        [Williams]: No. I seen him grab his gun and then as Mr. Barbee
                    was grabbing his gun, I started to, like I said, fade
                    away. I didn’t know if it was gunshots about to be
                    fired or what. I’m not – I mean, I’m just – I’m there
                    working, I’m not about to be ——


        [Counsel]:       All right. Did you actually – did you actually see
                         anybody hit by any shot or shots?


        [Williams]: No.


        [Counsel]:       What did you do after the shot was fired?


        [Williams]: Packed my stuff and left out the house.


        [Counsel]:       Did you stick around for the police?


        [Williams]: No.

Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 18 of 24
               [Counsel]:       Did you later go to the police and give any kind of
                                statements?


               [Williams]: No.


               [Counsel]:       Did you contact Mr. Barbee’s attorneys?


               [Williams]: I contacted Mr. Barbee and he – he, uh, had me talk
                           to one of his attorneys, I don’t know who were –
                           who it was, but, yeah.


       Post-Conviction Transcript at 30-32.


[22]   Both of Barbee’s attorneys at trial, Michael Caudill and Patrick Baker, also

       testified at the post-conviction relief hearing. Caudill testified that Barbee

       suggested potential witnesses and that when they had difficulty locating a

       witness, Barbee would suggest someone else. Although neither Baker nor

       Caudill initially remembered Williams specifically, Caudill explained, “as we

       got closer to trial, there was [sic] a couple guys there at the end that we just

       weren’t comfortable calling. And just because of the lateness of the witnesses

       and that sort of thing.” Id. at 45. Caudill went on to explain in cross-

       examination:


               [State]:         Mr. Williams testified that he was – he testified in
                                the PCR hearing here that he was subpoenaed and
                                that he waited outside in the hallway, but that – he
                                was told he wouldn’t be called as a witness.


               [Caudill]:       That would be my --


       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 19 of 24
               [State]:         Is that –


               [Caudill]:       That would be consistent with my memory.


               [State]:         Okay. And do you happen to remember, uh, was it
                                just the lateness of you finding him that – that was
                                the reason for that, or was there some other reason
                                why you felt that it would not be in Mr. Barbee’s
                                best interest to call that witness, if you remember?


               [Caudill]:       My memory of that is that there was – the lateness
                                of the witness, didn’t want to stir up what we’d
                                already had put in place. And the witness didn’t
                                seem to be that strong. And I think those were the
                                things that we considered in determining whether or
                                not to call him.


               [State]:         Okay. And, uhm, would one of your concerns, or
                                something that you strategically consider when
                                deciding whether to call witnesses, is whether their
                                testimony would be consistent or contradictory with
                                other witnesses for the defense?


               [Caudill]:       Absolutely.


       Id. at 51-52.


[23]   On review, we believe the decision not to call Williams to testify was a

       reasonable trial strategy—and one that we will not second guess. Brown, 691

       N.E.2d at 447. Williams’ credibility was problematic at best. Although we

       assume that being a close friend and employee of Barbee would never alone

       disqualify a witness in the eyes of trial counsel, here, Williams never reported

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 20 of 24
       the incident to the police and was a last-minute witness, proffered by Barbee

       himself only after counsel was unable to locate other witnesses. Moreover,

       because neither Caudill nor Baker remembers what Williams’ testimony would

       have been at the time of trial, and because Williams’ never spoke with the

       police or left a contemporaneous record of his account, the only evidence of

       what Williams’ testimony would have been is that which he offered at the post-

       conviction relief hearing. See Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct.

       App. 2006) (noting that we assess counsel’s performance based on facts that

       were known at the time and not through the benefit of hindsight), trans. denied.

       Thus, in light of the totality of the defense trial counsel did offer, we find this

       evidence insufficient to overcome the strong presumption in favor of adequate

       legal assistance.


[24]   One such aspect of that defense was the testimony of Anthony Hampton.

       Hampton, a passerby and an impartial witness who later reported the incident

       to the police, testified that as he was walking through a nearby park, he

       observed three men arguing on the back porch of a home. One of the men

       raised a handgun and “immediately start[ed] messing with it.” [Trial] Tr., Vol.

       II at 391. Then, sometime later, another man raised his handgun and fired it

       “simultaneously [with raising the handgun]. It just happened quickly.” Id. at

       393. Hampton’s testimony was obviously beneficial to Barbee’s theory of self-

       defense. And, even assuming Williams’ testimony would have corroborated

       Hampton’s version of events, we find Williams’ lateness and credibility issues

       to be problems which trial counsel could have reasonably sought to avoid.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 21 of 24
[25]   Here, the post-conviction court determined that Barbee failed to overcome the

       presumption of effective performance. Our review of the record does not lead

       us to an opposite conclusion. 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.


                                        C. Appellate Counsel
[26]   Finally, Barbee alleges that he was denied effective assistance of appellate

       counsel because counsel failed to argue that final jury instruction 23 was

       fundamental error on direct appeal. Because of our resolution of Barbee’s

       claims involving trial counsel, however, we easily dispense with this claim and

       conclude that Barbee has failed to demonstrate prejudice.


[27]   In Benefield, we 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

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 22 of 24
                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.


       945 N.E.2d at 802-03.


[28]   Above, in the context of Barbee’s claim of ineffective assistance of trial counsel

       for failing to object to final jury instruction 23, we concluded that Barbee failed

       to establish prejudice. As we held in Benefield,


                the bar establishing fundamental error is higher than that for
                prejudice of ineffective assistance of trial counsel. Therefore,
                where an appellant has failed to prove ineffective assistance of
                trial counsel, our holding would exclude a finding of
                fundamental error.


       Id. at 805. Accordingly, because Barbee failed to prove ineffective assistance of

       trial counsel with respect to final jury instruction 23, he has failed to show

       fundamental error, and in turn, has failed to demonstrate prejudice resulting

       from appellate counsel’s alleged deficient performance in failing to raise the

       issue.



                                               Conclusion
[29]   Barbee failed to demonstrate both ineffective assistance of trial and appellate

       counsel. Therefore, we conclude that the post-conviction court did not err

       when it denied Barbee’s petition for post-conviction relief.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 23 of 24
[30]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-PC-1555 | March 28, 2018   Page 24 of 24
