MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                          Aug 11 2015, 7:56 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana
Maria-Teresa Kuzmic                                      Ian McLean
John Pinnow                                              Deputy Attorney General
Deputies Public Defender                                 Indianapolis, Indiana
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Tyrus D. Coleman,                                        August 11, 2015

Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A03-1407-PC-247
        v.
                                                         Appeal from the Elkhart Circuit
State of Indiana,                                        Court
                                                         The Honorable Terry C. Shewmaker,
Appellee-Respondent,                                     Judge
                                                         Cause No. 20C01-1202-PC-14




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015        Page 1 of 24
                                Case Summary and Issue
[1]   A jury found Tyrus Coleman guilty of attempted murder on March 18, 2009.

      In 2010, this court reversed Coleman’s conviction on direct appeal. Our

      supreme court granted transfer and affirmed Coleman’s conviction the

      following year. Thereafter, Coleman filed a petition for post-conviction relief

      wherein he alleged ineffective assistance of counsel. The post-conviction court

      denied Coleman’s petition on June 25, 2014. Coleman appeals the denial of

      post-conviction relief. His sole issue is whether the post-conviction court erred

      in concluding that trial counsel was not ineffective. 1 Concluding none of the

      errors alleged by Coleman amount to ineffective assistance of counsel, alone or

      cumulatively, we affirm.



                            Facts and Procedural History
[2]   The relevant facts were set forth by our supreme court in a decision on direct

      appeal:

              In a tragic incident occurring March 18, 2007, Tyrus Coleman shot his
              friends Anthony Dye and Dye’s son Jermaine Jackson during a
              confrontation on Coleman’s property, where Coleman operated a
              music recording studio. The confrontation stemmed from an event
              occurring approximately four months earlier in which Omar Sharpe,
              one of Coleman’s musician clients, robbed Dye at gunpoint. Coleman




      1
       Coleman was represented by two attorneys at trial—John Kindley and John Hosinski. Hosinski conducted
      voir dire and gave closing argument, and Kindley was responsible for all other aspects of the case.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015     Page 2 of 24
        retrieved part of the stolen property from Sharpe and returned it to
        Dye. Jermaine was irritated when he later learned that Sharpe had
        robbed his father, but Dye asked him not to get involved. On the
        afternoon of the shootings, Jermaine discovered that Sharpe was
        present at Coleman’s studio and frantically phoned Dye to “[c]ome
        over here right now.” Armed with a handgun Dye headed to
        Coleman’s studio. In the meantime an armed and agitated Jermaine
        pushed open the door to the studio and attempted to enter. Sharpe,
        who was present inside, prevented Jermaine’s entry and closed the
        door. Exiting the studio Coleman attempted to calm Jermaine and to
        dissuade him from trying to enter. Coleman called a neighbor to come
        over to help calm Jermaine; he also called his business partner to
        inform him of the situation. The neighbor testified that he tried to talk
        with Jermaine by telling him what [Jermaine] was doing “wasn’t
        worth it. Just go ahead and leave. There was kids around and people
        around that didn’t have nothing to do with what they was angry
        about.” According to the witness Jermaine responded by saying,
        “F* *k that. He didn’t think about that s* *t when he did the s* *t to
        my Daddy.” Coleman armed himself and walked back and forth in
        front of the studio door holding his handgun at his side. As Coleman
        was making a phone call, Dye came into the yard through a front gate
        carrying a handgun which was pointed toward the ground. Dye strode
        toward his son Jermaine, who was standing next to Coleman on the
        patio in front of the studio. Within three seconds, the following
        occurred: Dye stepped onto the patio where Jermaine and Coleman
        were standing. As Dye stepped in front of Coleman, Coleman raised
        his gun and fired at Dye, who immediately fell to the ground.
        Coleman then shot Dye a second time. At that point Coleman “turned
        to Jermaine.” Coleman saw that Jermaine’s handgun, which before
        that time had been concealed under his shirt and in a holster, was
        “pointed at [Coleman]”; and Coleman shot Jermaine. Jermaine fell to
        the ground and died at the scene as a result of his injuries. After the
        shooting, Coleman drove to Milwaukee disposing of his weapon along
        the way. Several days later he returned to Elkhart and surrendered to
        the police.
        The State charged Coleman with murder, a felony, for the death of
        Jermaine and attempted murder, a Class A felony, for shooting Dye.
        During a jury trial conducted in February 2008 Coleman testified and

Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 3 of 24
              admitted the shootings, but contended that his actions against both
              Jermaine and Dye were justified on the basis of self-defense. The jury
              returned a verdict of not guilty on the murder charge, but was unable
              to reach a verdict on the attempted murder charge. The trial court thus
              declared a mistrial on that count and scheduled another trial. Prior to
              retrial Coleman filed a motion to dismiss contending a subsequent trial
              on attempted murder was barred by collateral estoppel and would
              therefore violate the Double Jeopardy Clauses of both the United
              States and Indiana Constitutions. After a hearing, the trial court
              denied the motion. A retrial ensued, at the conclusion of which the
              jury found Coleman guilty as charged. Thereafter the trial court
              sentenced him to a term of forty-five years.
      Coleman v. State, 946 N.E.2d 1160, 1163-64 (Ind. 2011) (record citations and

      footnotes omitted).


[3]   In a divided opinion, this court reversed Coleman’s conviction on grounds of

      collateral estoppel. Coleman v. State, 924 N.E.2d 659 (Ind. Ct. App. 2010). Our

      supreme court subsequently granted transfer and on May 18, 2011, affirmed

      Coleman’s conviction, concluding collateral estoppel did not bar retrial.

      Coleman, 946 N.E.2d at 1166. On February 2, 2012, Coleman filed a pro se

      petition for post-conviction relief that was later amended by counsel. Coleman

      alleged that he was entitled to relief because his trial and appellate counsel had

      been ineffective in numerous respects.


[4]   The post-conviction court held a two-day hearing on June 27, 2013 and

      November 25, 2013. On June 25, 2014, following a hearing, the post-

      conviction court issued a ten-page order denying Coleman’s petition. Coleman

      now appeals.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 4 of 24
                                 Discussion and Decision
                                      I. Standard of Review
                                    A. Post-Conviction Relief
[5]   A defendant who has exhausted the direct appeal process may challenge the

      correctness of his conviction and sentence by filing a post-conviction petition.

      Parish v. State, 838 N.E.2d 495, 499 (Ind. Ct. App. 2005). Post-conviction

      procedures do not provide an opportunity for a super appeal. Id. Rather, they

      create a narrow remedy for subsequent collateral challenges to convictions that

      must be based on grounds enumerated in the post-conviction rules. Id. Post-

      conviction proceedings are civil proceedings, and a defendant must establish his

      claims by a preponderance of the evidence. Id.


[6]   In reviewing the judgment of a post-conviction court, this Court considers only

      the evidence and reasonable inferences supporting its judgment. Hall v. State,

      849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is the sole judge of

      the evidence and the credibility of witnesses. Id. at 468-69. To prevail on

      appeal from the denial of post-conviction relief, the petitioner must show that

      the evidence as a whole leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Id. at 469. Only where the

      evidence is without conflict and leads to but one conclusion, and the post-

      conviction court has reached the opposite conclusion, will the court’s findings

      or conclusions be disturbed as being contrary to law. Id.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 5 of 24
[7]   Where, as here, the post-conviction judge is the same judge who conducted the

      original trial, such a jurist is uniquely situated to assess whether counsel’s

      performance fell below an objective standard of reasonableness based on

      prevailing professional norms, and whether, but for counsel’s unprofessional

      conduct, there was a reasonable probability that the jury would have reached a

      different verdict. McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct. App. 2012),

      trans. denied; see also State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003) (noting that

      because judge presided at both original trial and post-conviction hearing, judge

      was in “an exceptional position” to assess weight and credibility of factual

      evidence and whether defendant was deprived of a fair trial).


                           B. Ineffective Assistance of Counsel
[8]   Coleman argues that the post-conviction court erred in denying his petition

      because he received ineffective assistance of trial counsel. We review claims of

      ineffective assistance of trial counsel under the two-prong test established in

      Strickland v. Washington, 466 U.S. 668 (1984). The defendant must show that

      trial counsel’s performance fell below an objective standard of reasonableness

      based on prevailing professional norms and that there is a reasonable

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

      have been different. Moody v. State, 749 N.E.2d 65, 67 (Ind. Ct. App. 2001),

      trans. denied.


[9]   Counsel is afforded considerable discretion in choosing strategy and tactics, and

      we will accord those decisions deference on appeal. Wrinkles v. State, 749
      Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 6 of 24
       N.E.2d 1179, 1195 (Ind. 2001), cert. denied, 535 U.S. 1019 (2002). Counsel’s

       performance is presumed effective, and a 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. We will not speculate as to what

       may or may not have been advantageous trial strategy as counsel should be

       given deference in choosing a trial strategy which, at the time and under the

       circumstances, seems best. Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998).


[10]   If we can dismiss an ineffective assistance of counsel claim on the prejudice

       prong, we need not address whether counsel’s performance was deficient.

       Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). Rather, we may proceed to

       evaluate whether the alleged error rendered the result of petitioner’s trial

       fundamentally unfair or unreliable. Cooper v. State, 687 N.E.2d 350, 353 (Ind.

       1997). When making this evaluation, we consider the totality of the evidence,

       taking into account the effect of the alleged error. Id. A defendant is “entitled

       to a fair trial, not a perfect trial.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014)

       (citation omitted).


         II. Assertions of Ineffective Assistance of Trial Counsel
[11]   At the outset, we note that the post-conviction court’s order discussed a video

       recording of the shooting as follows:

               The video taped recording of the actual shooting herein . . . shows Dye
               entering the backyard until he is twice shot by [Coleman]; Dye has his
               gun to his side, and is walking in the direction of and looking at his

       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 7 of 24
         son, Jermaine Jackson. [Coleman] appears from the shadow and from
         the side and behind Dye, and as Dye walks past [Coleman] with his
         gun down, [Coleman] raised his own gun and shoots Dye in the back
         of his head behind his ear. As Dye falls to the ground, [Coleman]
         shoots him again. It is not until this separate and distinct crime occurs
         that Dye’s son Jermaine pulls his weapon and shoots at [Coleman].
         The evidence presented at trial was also that after the shooting,
         [Coleman] paced in the backyard, had a cell phone but did not call
         emergency personnel or law enforcement, but rather fled with his
         weapon, later throwing the gun into a body of water and left the state.


Appendix to Brief of Petitioner-Appellant at 344. In light of this

“overwhelming evidence of [Coleman’s] guilt,” the post-conviction court

concluded that “it [was] unlikely that the outcome of the trial would have been

any different even if counsel would have done everything [Coleman] alleges

was deficient. . . . [Coleman] has not shown that the outcome of his trial likely

would have been different if his trial counsel would have performed

differently.” Id. (citation omitted). We nonetheless address Coleman’s

numerous allegations of ineffective assistance of trial counsel.2




2
 We have counted seventeen allegations of ineffective assistance of counsel, which we have consolidated as
appropriate. As the Ninth Circuit has said:
         Like other mortals, appellate judges have a finite supply of time and trust; every weak
         issue in an appellate brief or argument detracts from the attention a judge can devote to
         the stronger issues, and reduces appellate counsel’s credibility before the court. For these
         reasons, a lawyer who throws in every arguable point – “just in case”—is likely to serve
         her client less effectively than one who concentrates solely on the strong arguments.
Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).

Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015                Page 8 of 24
[12]   Coleman specifically contends that trial counsel was ineffective because counsel

       failed to: 1) question prospective jurors about their views on self-defense during

       voir dire; 2) impeach Dye with two prior inconsistent statements, cross-examine

       Dye about his gun, make an offer of proof about Dye’s pending charges, and

       tender a jury instruction on Dye’s use immunity; 3) advise Coleman’s character

       witnesses that there was a separation of witnesses order in place and make an

       offer of proof; 4) call Omar Sharpe and Laquisha Hunt as witnesses; 5) discuss

       the trial court’s order on the State’s motion in limine with defense witnesses; 6)

       present the entire video of the shooting to the jury; 7) argue a consistent defense

       during closing argument; 8) argue the State had the burden of disproving self-

       defense beyond a reasonable doubt; and 9) tender an instruction on the defense

       of property. Coleman also argues that trial counsel Kindley admitted his

       deficient trial performance and that the cumulative effect of the alleged errors

       amounted to ineffective assistance of counsel.


                                                A. Voir Dire
[13]   Coleman first contends he is entitled to post-conviction relief because trial

       counsel did not question prospective jurors about their views on self-defense

       during voir dire. Coleman makes only a conclusory statement that this failure

       constituted ineffective assistance of counsel and offers no supporting argument

       or authority. He has therefore waived appellate review of this contention. See

       Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (citing Indiana Appellate Rule



       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 9 of 24
       46(A)(8)(d) and explaining that failure to support an argument with appropriate

       citations to legal authority waives that argument for appellate review).


[14]   Waiver notwithstanding, we find no error. Defense counsel informed the

       prospective jurors that the case was about Coleman’s intent. Specifically, the

       case was about whether Coleman intended to murder Dye or had simply

       intended to defend himself. Our review of the evidence reveals that the State

       questioned the prospective jurors about their ability to 1) assess this issue with

       direct and circumstantial evidence; 2) judge the credibility of witnesses; and 3)

       hold the State to its burden of proof. Further, we agree with the State that the

       prospective “jurors answered questions relevant to Coleman’s defense in a way

       that allowed Coleman’s team to concentrate on studying and noting the jurors’

       responses.” Brief of Appellee at 10. We further agree that “[t]his is why [trial

       counsel] ended the last venire panel by saying: ‘[the State] asked everything. I

       cannot think of a legitimate question to ask any of you that he hasn’t already

       asked you. So I’m going to turn to the Court and say no questions.” Transcript

       at 147.3 See Wilkes v. State, 984 N.E.2d 1236, 1246-48 (Ind. 2013) (holding trial

       counsel not ineffective for failing to question a juror in part because the State

       questioned the juror and the juror’s answers “were apparently satisfactory to

       both parties[,]” and noting that jury selection is a matter of strategy within trial




       3
        We cite to the transcript of the 2009 trial, which is the subject of this appeal, as Transcript; to the transcript
       of the 2008 trial as 2008-Transcript; and to the transcript of the post-conviction hearing as PCR-Transcript.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015                  Page 10 of 24
       counsel’s discretion). In addition, Coleman has failed to show any prejudice in

       the makeup of the jury. Coleman has failed to meet his burden to show that

       trial counsel was ineffective for failing to question the prospective jurors about

       their views on self-defense.


                                 B. Testimony of Anthony Dye
[15]   Coleman next argues that defense counsel demonstrated deficient performance

       in several respects in dealing with the testimony of witness and victim Dye.

       The State responds that Coleman has failed to show any deficiency or

       prejudice. We agree with the State.


                  1. Failure to Impeach Dye with Prior Inconsistent Statements

[16]   At Coleman’s first trial, Dye testified that when he entered Coleman’s premises,

       he might have asked his son where Sharpe was by asking, “[W]here that n****r

       at[?]” 2008-Tr. at 135. At the second trial, Dye testified that he did not say

       “anything to anybody” when he entered the premises. Tr. at 156. Also at

       Coleman’s first trial, Dye testified that he did not believe Coleman was

       involved when Sharpe robbed him. At the second trial, Dye testified that when

       the robbery first happened, he gave Coleman the “benefit of the doubt [even

       though] everybody else . . . kept putting him in it, but I protected him till the




       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 11 of 24
       end.” Tr. at 160. Coleman argues trial counsel was ineffective for failing to

       impeach Dye with these prior inconsistent statements.4


[17]   Impeachment is the process of attacking the credibility of a witness who has

       given testimony. Ellyson v. State, 603 N.E.2d 1369, 1375 (Ind. Ct. App. 1992).

       Impeachment is an important matter at trial where the only direct evidence of

       the defendant’s guilt is contained in the testimony of one witness. See id. Here,

       however, evidence of Coleman’s guilt was contained in the testimony of many

       witnesses as well as in a video of the crime. Coleman has failed to meet his

       burden to show that there is a reasonable probability that the result of the

       proceeding would have been different had he impeached Dye with his prior

       inconsistent statements.


                            2. Failure to Cross-Examine Dye about his Gun

[18]   Coleman next argues that trial counsel was ineffective for failing to ask Dye if

       his gun was loaded when he entered Coleman’s premises. According to

       Coleman, trial counsel’s failure to ask this question was deficient performance

       because “[e]vidence the alleged victim was armed with a loaded weapon is a

       fact that would reasonably place Coleman in fear or apprehension of death or

       serious bodily injury.” Appellant’s Br. at 23. However, it was not necessary for




       4
         Especially regarding the second set of so-called inconsistent statements, we agree with the State that
       Coleman “pl[ied] the record for a contradiction between Dye’s testimony at his first and second trials” and
       failed to find a significant one. Appellee’s Br. at 14. We nevertheless address Coleman’s contention.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015            Page 12 of 24
       Coleman to know whether the gun was loaded to be placed in fear. See Alstatt v.

       State, 455 N.E.2d 323, 324 (Ind. 1983) (“We find it ludicrous to argue that a

       person has no reason to be in fear unless he knows that a gun pointed at him is

       loaded.”). Coleman has failed to show that the result of the proceeding would

       have been different had trial counsel asked Dye if his gun was loaded when he

       entered Coleman’s premises.


                3. Failure to Make an Offer of Proof on Dye’s Pending Charges

[19]   The State sought and was granted a pretrial order to exclude evidence that Dye

       had pending charges for being a serious violent felon in possession of a firearm

       and for being an habitual offender arising out of this incident. Coleman argues

       that trial counsel was ineffective for failing to make an offer of proof regarding

       these charges, as they were relevant to the prosecutor’s request for use

       immunity. Although Coleman details how and why he believes this was

       deficient performance, he has wholly failed to allege that he was prejudiced by

       this failure. Coleman has failed to meet his burden to show that there is a

       reasonable probability that the result of the proceeding would have been

       different if he had made such an offer of proof.


                   4. Failure to Tender an Instruction on Dye’s Use Immunity

[20]   In addition, Coleman argues that trial counsel was ineffective because he did

       not tender a jury instruction on use immunity. In support of his argument, he

       directs us to J.J. v. State, 858 N.E.2d 244, 252 (Ind. Ct. App. 2006), where this

       court reversed the denial of post-conviction relief because trial counsel had
       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 13 of 24
       failed to inform the jury that a witness was testifying pursuant to a grant of use

       immunity. Here, however, the jury was informed that Dye was testifying

       pursuant to use immunity and told that any evidence Dye gave could be used in

       a criminal proceeding against him. Tr. at 165. Coleman has again failed to

       meet his burden to show a reasonable probability that the result of the

       proceeding would have been different if he had tendered a use immunity

       instruction.


       C. Failure to Advise Character Witnesses about Separation of
          Witnesses Order and Failure to Make an Offer of Proof
[21]   Coleman next argues that trial counsel was ineffective for failing to advise his

       character witnesses, Thomas Rogers, Mikkilyn Holderad, and Don Porter,

       about the trial court’s separation of witnesses order. According to Coleman,

       because trial counsel failed to advise the witnesses about this order, they were

       not allowed to testify about his reputation for truthfulness.5 Coleman further

       argues that trial counsel was ineffective because he failed to make an offer of

       proof regarding the content of their testimony.


[22]   Indiana Rule of Evidence 608(a) provides that a witness’s credibility may be

       supported by testimony about the witness’s reputation for having a character for




       5
         In fact, though, counsel only called Rogers, whose testimony was excluded in part because he had sat in the
       courtroom all day in violation of the separation of witnesses order but also because he knew Coleman only
       through work and could not offer an opinion of Coleman’s reputation for truthfulness in the community.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015            Page 14 of 24
       truthfulness or by testimony in the form of an opinion about that character.

       However, the rule further provides that evidence of a truthful character is

       admissible only after the witness’s character for truthfulness is attacked. Here,

       because the State did not attack Coleman’s character for truthfulness, the

       character evidence would not have been admissible and Coleman was not

       prejudiced by the exclusion of Rogers’s testimony or by the failure to call the

       other character witnesses. Further, because evidence about Coleman’s

       reputation for truthfulness was not admissible, Coleman was not prejudiced by

       trial counsel’s failure to make an offer of proof.


             D. Failure to Call Omar Sharpe and Laquisha Hunt as
                                  Witnesses
[23]   Coleman next argues that trial counsel was ineffective for failing to call Omar

       Sharpe and Laquisha Hunt as witnesses. The decision regarding what

       witnesses to call is a matter of trial strategy which we will not second-guess.

       Wrinkles, 749 N.E.2d at 1201.


[24]   Coleman contends that trial counsel was ineffective for failing to call Sharpe as

       a witness because Sharpe would have corroborated his testimony that he was

       not involved in the robbery. However, our review of the post-conviction

       hearing reveals that trial counsel decided during the trial not to call Sharpe as a

       witness and had him transported back to jail. It was not until closing argument

       that the State suggested that Coleman was involved in the robbery. Trial

       counsel, who “never even imagined” Coleman’s involvement in the robbery

       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 15 of 24
       would be an issue at trial, PCR-Tr. at 67, realized that he could have questioned

       Sharpe about the issue had he called him to the stand during trial. The fact that

       trial counsel wished in retrospect that he had called Sharpe as a witness based

       on the State’s suggestion in closing argument does not amount to deficient

       performance and ineffective assistance of counsel. “Judicial scrutiny of

       counsel’s performance is highly deferential and should not be exercised through

       the distortions of hindsight.” Timberlake v. State¸ 753 N.E.2d 591, 605 (Ind.

       2001), cert. denied, 537 U.S. 839 (2002) (citation omitted).


[25]   Coleman further complains that trial counsel did not call Hunt, Coleman’s

       girlfriend at the time of the incident, as a witness. Hunt testified at the post-

       conviction hearing regarding threats she allegedly heard Dye make to Coleman

       prior to the shooting. Our review of the evidence leads us to agree with the

       State, that Hunt’s testimony about overhearing Dye threaten Coleman during a

       phone call “gives every indication of having been fabricated.” Appellee’s Br. at

       29. At the very least, her testimony was very imprecise. In fact, Hunt’s account

       of the alleged threat was contradicted by Coleman’s testimony at the trial.

       There is nothing in Hunt’s post-conviction testimony to support the notion that

       failing to call her as a witness to give that same dubious testimony at Coleman’s

       retrial would have produced a different result.


[26]   The post-conviction court concluded that trial counsel made strategic decisions

       not to call Sharpe and Hunt as witnesses. The evidence as a whole does not



       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 16 of 24
       lead unerringly and unmistakably to a conclusion opposite that reached by the

       post-conviction court. See Hall, 849 N.E.2d at 468.


         E. Failure to Discuss the Trial Court’s Order on the State’s
                 Motion in Limine with Defense Witnesses
[27]   The trial court entered an order in limine barring evidence that the day of the

       shooting Jermaine went to a gun range and that Jermaine had been killed

       during Coleman’s confrontation with Dye. At trial, after the State rested, trial

       counsel called Yarrum Murray as Coleman’s first witness and elicited testimony

       that Jermaine had gone to the gun range before the shooting. The State

       objected, and during a subsequent hearing outside the presence of the jury, the

       trial court learned that trial counsel had not informed either Murray or Jamie

       Allen about the order in limine. The trial court ordered trial counsel to provide

       the witnesses with copies of the order and to be sure that the witnesses

       understood it. The trial court then previewed Murray’s testimony and excluded

       it, including his testimony that Jermaine went to a gun range the day of the

       shooting. The court later previewed Allen’s testimony and also excluded it,

       including testimony that Dye called Jermaine before the shooting. The trial

       court further concluded that trial counsel had not intentionally violated the

       order.


[28]   Coleman now argues that trial counsel was ineffective for failing to discuss the

       trial court’s order on the State’s motion in limine with Murray and Allen.

       According to Coleman, trial counsel’s failure to talk to Murray about the order

       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 17 of 24
       “resulted in Murray’s testimony [that he went to the gun range with Jermaine

       the morning of the shooting] being excluded at trial.” Appellant’s Br. at 29.

       Coleman claims that he was prejudiced because this evidence was “admissible

       to show Jermaine’s state of mind and relevant to Coleman’s claim of self-

       defense.” Id. at 28.


[29]   First, there is no evidence that Murray’s testimony was excluded because trial

       counsel failed to discuss the order with him. The trial court concluded that trial

       counsel had not intentionally violated the order. Second, we agree with the

       State that “because there is no evidence that Coleman was aware of Jermaine’s

       trip to the shooting range, Jermaine’s [alleged] trip could not have played any

       role in Coleman’s appreciation of the situation near the studio,” Appellee’s Br.

       at 32. Coleman could therefore not have been prejudiced by the exclusion of

       this evidence.


[30]   Coleman also claims that trial counsel’s failure to discuss the motion in limine

       with Allen resulted in the exclusion of evidence that Dye called Jermaine just

       before the shooting. Again, there is no evidence that Allen’s testimony was

       excluded because trial counsel failed to discuss the order with her. There is also

       no evidence that Coleman was aware of Dye’s alleged call to Jermaine.

       Coleman could therefore not have been prejudiced by the exclusion of this

       evidence.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 18 of 24
        F. Failure to Present the Entire Video of the Shooting to the
                                    Jury
[31]   Coleman next argues that trial counsel was ineffective “in not sufficiently

       familiarizing himself with the equipment used to play the surveillance video as

       to ensure that the portion played for the jury showed that Jermaine had a

       handgun before Coleman shot Dye.” Appellee’s Br. at 33-34. According to

       Coleman, he was prejudiced because without seeing the portion of the video

       that showed Jermaine carrying a handgun, the jury was not provided evidence

       supporting his version of the events that he was facing two-armed men.

       However, our review of the evidence reveals that two eyewitnesses testified that

       Jermaine was armed. In addition, during closing argument, the State conceded

       that Jermaine was armed. Coleman has failed to show that the result of the

       proceeding would have been different had the jury seen that portion of the

       video showing Jermaine carrying a handgun.


                              G. Arguing Inconsistent Defenses
[32]   During closing argument, trial counsel argued both that Coleman 1) shot Dye

       in self-defense and 2) did not have the intent to kill Dye. Coleman now

       contends that trial counsel was ineffective for arguing inconsistent defenses.


[33]   However, the choice of defenses for trial is a matter of trial strategy. Van Evey v.

       State, 499 N.E.2d 245, 248 (Ind.1986). Here, the State points out that:




       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 19 of 24
               The evidence proving that Coleman shot Dye has always been
               overwhelming and uncontested. Opportunities which might be
               available in other attempted-murder cases, such as disputes over
               proof of the perpetrator’s identity; suppression of incriminating
               evidence; or challenges to evidence proving commission of the
               physical acts required to commit the offense, have always been
               unavailable to Coleman’s counsel. Coleman’s attorneys wisely
               selected the only battlefield available to them, namely,
               Coleman’s intent. The facts surrounding Coleman’s actions
               permitted counsel the opportunity to argue for reasonable doubt
               as to whether Coleman had even committed the charged offense
               in the first place, and to also argue that even if Coleman had
               committed the offense, he was justified in doing so.
       Appellee’s Br. at 37-38 (emphasis in original).               We will not second-guess trial

       strategy on appeal. Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App. 1997),

       trans. denied.


[34]   Coleman nevertheless argues that Page v. State, 615 N.E.2d 894 (Ind. 1993),

       supports his claim that trial counsel was ineffective for arguing inconsistent

       defenses. There, our supreme court held that trial counsel’s failure to submit a

       voluntary manslaughter instruction did not constitute ineffective assistance of

       counsel in light of his theory of self-defense. Id. at 895-96. However, our

       supreme court also stated that trial counsel could have requested such an

       instruction and that the trial court could have properly given it, id. at 895,

       which supports the State’s argument that trial counsel was not ineffective for

       strategically arguing both defenses. Coleman has failed to demonstrate that

       trial counsel's strategic decisions fell below an objective standard of

       reasonableness.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 20 of 24
          H. Failure to Argue Burden of Proof in Closing Argument
[35]   Coleman also argues that trial counsel was ineffective for failing to argue in

       closing argument that the State had the burden of disproving self-defense

       beyond a reasonable doubt. Coleman is correct that the State has the burden of

       disproving the claim of self-defense beyond a reasonable doubt, see McEwen v.

       State, 695 N.E.2d 79, 90 (Ind. 1998), and he concedes that the jury was so

       instructed. He also concedes that trial counsel mentioned the self-defense

       instruction during closing argument. His sole contention is that trial counsel

       should have mentioned the State’s burden again during closing argument.

       Coleman makes only a conclusory statement that this failure constituted

       ineffective assistance of counsel and offers no supporting argument or authority.

       He has therefore waived appellate review of this contention. See Pierce, 29

       N.E.3d at 1267. Waiver notwithstanding, we find no error. Our review of the

       evidence reveals that during trial, trial counsel repeatedly argued the elements

       of self-defense and the State’s burden to prove Coleman’s guilt beyond a

       reasonable doubt. Coleman has failed to meet his burden to show that there is

       a reasonable probability that the result of the proceeding would have been

       different had he mentioned the State’s burden of proof again during closing

       argument.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 21 of 24
            I. Failure to Tender a Jury Instruction on the Defense of
                                     Property
[36]   In addition, Coleman argues that trial counsel was ineffective for failing to

       tender a jury instruction on the defense of property. Indiana Code section 35-

       41-3-2(c) (2012) provides that with respect to property other than a dwelling or

       curtilage, a person is justified in using reasonable force against another person if

       the person reasonably believes that the force is necessary to immediately

       prevent or terminate the other person’s trespass or criminal interference with

       property lawfully in the person’s possession. However, a person is only

       justified in using deadly force when it is necessary to prevent serious bodily

       injury to the person or a third person, or the commission of a forcible felony.

       Ind. Code § 35-41-3-2(a) (2012). A jury instruction must be supported by the

       evidence. Taylor v. State, 602 N.E.2d 1056, 1061 (Ind. Ct. App. 1992), trans.

       denied.


[37]   Here, Coleman specifically argues that there is evidence to support this

       instruction because Jermaine’s action in trying to break into Coleman’s

       recording studio while armed with a handgun constituted a forcible felony.

       However, the State correctly points out that Jermaine’s attempt to enter the

       studio ended without the use of deadly force before Coleman armed himself

       and shot Dye. We find no evidence to support this instruction. Therefore, trial

       counsel was not deficient for failing to tender such an instruction.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 22 of 24
                J. Trial Counsel Admitted that He Was Ineffective
[38]   Coleman further argues that the post-conviction court erred in denying his

       petition because trial counsel admitted that he was ineffective due to his

       inexperience. However, our review of the evidence reveals that trial counsel is,

       to quote the post-conviction court, “well read and is a recognized scholar.”

       App. at 343. The evidence further reveals that trial counsel agrees with the

       statement in an internet article that the “defense lawyer should candidly admit

       failure for the client’s sake. It’s the client’s best chance.” State’s PCR Exhibit

       1. In addition, as the State points out, trial counsel’s testimony was

       “accompanied by his fervent expressions of belief that Coleman is actually

       innocent; bitter recriminations against the legal system that convicted Coleman;

       and an unwarranted belief in his own professional failure.” Appellee’s Br. at

       40. Further, the record of proceedings reveals that trial counsel filed

       appropriate motions, cross-examined witnesses, made objections, responded to

       objections, and made cogent argument. Based on this evidence, the post-

       conviction court concluded that trial counsel’s “assertions that he was deficient

       in his performance . . . lack[ed] credibility when weighed against the facts . . . in

       the record,” and determined that Coleman “failed in his burden to prove

       ineffective assistance of counsel.” App. at 343-44. Although the experience as

       a whole may be a good lesson to a new lawyer not to take cases he or she is not

       prepared to handle, Kindley recognized the limitations of his trial experience

       and engaged co-counsel. In hindsight, every lawyer makes mistakes during


       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 23 of 24
       trial. But again, a defendant is not entitled to a perfect trial, only a fair one. See

       Inman, 4 N.E.3d at 203. Therefore, it is only when counsel’s mistakes render

       the outcome of the trial unfair that relief is appropriate, and we cannot say

       Coleman’s trial was unfair. The evidence as a whole does not lead unerringly

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

       court. See Hall, 849 N.E.2d at 468.


                                         K. Cumulative Error
[39]   Last, Coleman argues that the cumulative effect of counsel’s errors deprived

       him of his right to the effective assistance of counsel. However, our supreme

       court has explained that “[t]rial irregularities which standing alone do not

       amount to error do not gain the stature of reversible error when taken together.”

       Kubsch v. State, 934 N.E.2d 1138, 1154 (Ind. 2010) (citing Reaves v. State, 586

       N.E.2d 847, 858 (Ind. 1992)). We find no error, cumulative or otherwise, here.



                                               Conclusion
[40]   For the foregoing reasons, the post-conviction court did not err in concluding

       Coleman had failed to prove he received the ineffective assistance of counsel

       and the judgment of the post-conviction court is affirmed.


[41]   Affirmed.


       Bailey, J., and Brown, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1407-PC-247 |August 11, 2015   Page 24 of 24
