                                                               FILED
                                                          May 05 2017, 12:52 pm

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court


ATTORNEYS FOR APPELLANT                               ATTORNEYS FOR APPELLEE
Stephen T. Owens                                      Curtis T. Hill, Jr.
Public Defender of Indiana                            Attorney General of Indiana

John Arthur Pinnow                                    Brian Lee Reitz
Deputy Public Defender                                Deputy Attorney General
Indianapolis, Indiana
                                                      Andrew A. Kobe
                                                      Deputy Attorney General

                                                      Ellen Hope Meilaender
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana

______________________________________________________________________________

                                        In the
                                Indiana Supreme Court
                         _________________________________

                                No. 48S02-1609-PC-480

TRONDO L. HUMPHREY,
                                                      Appellant (Petitioner below),

                                           v.

STATE OF INDIANA,
                                                   Appellee (Respondent below).
                         _________________________________

                        Appeal from the Madison Circuit Court 3
                    Nos. 48C03-1206-PC-19 and 48D03-9511-CF-417
                       The Honorable Thomas Newman, Jr., Judge
                        _________________________________

    On Petition To Transfer from the Indiana Court of Appeals, No. 48A02-1508-PC-1238
                          _________________________________


                                      May 5, 2017


Rucker, Justice.
       On a claim of ineffective assistance of trial counsel, Trondo L. Humphrey appeals the
denial of his petition for post-conviction relief. Concluding petitioner established his grounds for
relief by a preponderance of the evidence, we reverse the judgment of the post-conviction court.


                                  Facts and Procedural History


       Humphrey was convicted of murder in 1996 and sentenced to a term of sixty years. The
underlying facts as set forth on direct appeal before this Court are as follows:

       On the night of April 28-29, 1995, Benjamin Laughlin and Stephen Sites were
       driving around a neighborhood in Anderson looking for crack cocaine. Sites’
       account of events is summarized first. Sites was driving his truck. The two had
       been circling the same neighborhood for thirty to forty-five minutes when they
       saw three people in an alley. Believing the three to be drug dealers, Laughlin told
       Sites to pull into the alley. One of the three approached the truck on the
       passenger side and Laughlin asked the dealer to get in the cab to discuss a cocaine
       sale. As Sites drove, Laughlin and the dealer quickly exchanged words, the dealer
       drew a gun, Laughlin grabbed it, and the gun discharged. Sites saw the barrel of
       the gun but did not see a “flash” because the dealer “had the gun pushed up
       against [Laughlin].” Record at 253. The single shot struck Laughlin in the
       abdomen and the dealer jumped out of the moving truck and ran away. Sites
       testified that the dealer was young, black, had short hair, and was about five feet
       ten inches tall. However, Sites was unable to provide a more precise
       identification of the dealer and also could not identify his two comrades waiting
       nearby. Sites estimated that the dealer was in the truck for thirty to forty seconds.
       Sites drove Laughlin to a nearby hospital where he eventually died from the
       wound. A forensic technician examined Sites’ truck for fingerprints and blood
       spatters but was unable to recover any physical evidence or discernable
       fingerprints from the vehicle.

       Donnie Smith testified that he was drinking and smoking marijuana with the
       defendant and Roosevelt Brooks on the night of the murder in Brooks’ garage
       near the alley where the shooting occurred. The garage door was open so the
       three had access to the alley to sell drugs on the street. At some point a truck
       stopped outside the garage and the defendant went outside to greet it, indicating to
       Smith that he believed the occupants were looking for cocaine. Smith heard the
       door of the truck open and close in the alley but testified that he did not hear any
       shots or actually see the defendant approach or enter the truck. The truck then
       “peel[ed] out” and the defendant returned to the garage, telling Smith that the
       “dude” tried to “gank him” or “get him.” Record at 278. Smith saw only the
       back of the truck and could not testify to its color or whether it was the vehicle



                                                 2
        driven by Sites that evening. At some point prior to this incident, but not in the
        garage that night, Smith had seen the defendant carrying a gun.

        On June 16, 1995, Brooks, while in jail on an unrelated charge, gave an unsworn
        written statement to a police detective about the events of that night. According
        to the statement, Brooks was in his garage with someone he identified as the
        defendant from a photographic lineup containing pictures of six black males. The
        defendant went out to a blue truck with “white guys” inside, Brooks heard a
        “noise,” and the defendant returned soon thereafter, stating that he had shot one of
        the men. Record at 310. At trial, Brooks testified that he knew the defendant but
        was not with him or Smith on the night of the shooting. Brooks repudiated the
        statement, which had been admitted to impeach the credibility of his courtroom
        version, and testified in essence that it was fabricated due to police pressure.

Humphrey v. State, 680 N.E.2d 836, 837-38 (Ind. 1997) [hereinafter Humphrey I] (footnotes
omitted).


        Humphrey appealed raising several claims, including: (1) the trial court abused its
discretion when it admitted into evidence Brooks’ statement regarding Humphrey’s participation
in the murder; and (2) the trial court erred when it did not admonish the jury to consider the
statement for impeachment purposes only. This Court held that Brooks’ prior statement was
admissible for impeachment purposes, and regarding the admonishment we said, “[h]ad a proper
objection been lodged to the instruction, the court would have been required to entertain it.”
Humphrey I, 680 N.E.2d at 840. Ultimately, we affirmed the conviction noting, among other
things, “[t]here is no claim of ineffective assistance of trial or appellate counsel raised in this
appeal.” Id.


        Fifteen years later Humphrey filed a pro se petition for post-conviction relief which was
later amended by counsel. The amended petition alleged trial counsel rendered ineffective
assistance for the following reasons: (1) failing to object to the admission of Brooks’ unsworn
statement on hearsay grounds; (2) failing to request an admonishment that the jury may consider
Brooks’ unsworn statement for impeachment purposes only; (3) failing to object to and
improperly endorsing the trial court’s erroneous instruction on prior inconsistent statements; and
(4) failing to offer in its place an instruction that reflected a correct statement of the law.




                                                   3
       The State responded denying Humphrey’s substantive claims and also asserting they
were barred by the doctrine of laches. After a hearing, the post-conviction court concluded that
Humphrey’s claims were not barred and denied relief on the merits. On review, in a unanimous
opinion, the Court of Appeals agreed with the post-conviction court on the issue of laches, but
reversed on the substantive claims. In so doing the Court concluded, among other things,
“Humphrey was prejudiced by counsel’s errors that allowed the jury to consider as substantive
evidence the only evidence that identified Humphrey as the shooter.” Humphrey v. State, 56
N.E.3d 84, 94 (Ind. Ct. App. 2016) [hereinafter Humphrey II]. We agree with our colleagues on
the Court of Appeals and previously granted transfer to explore further Humphrey’s substantive
claims. We summarily affirm that portion of the court’s opinion disposing of the State’s claim of
laches. Additional facts are set forth below.


                     Standard of Review for Post-Conviction Proceedings


       “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 that a mistake has been made.” Ben-Yisrayl v.
State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).


                  Standard of Review for Ineffective Assistance of Counsel


       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

                                                4
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).


                                            Discussion

                                    I. Deficient Performance

                                        A. Trial strategy

       In its findings and conclusions, the post-conviction court determined that trial counsel did
not render deficient performance by failing to object on hearsay grounds to the admission of
Brooks’ prior inconsistent statement.     Similarly, the post-conviction court determined trial
counsel did not render deficient performance by failing to request an admonishment based on
Evidence Rule 105, or failing to object to the trial court’s final instruction on prior inconsistent
statements or tender an instruction on prior inconsistent statements. According to the post-
conviction court, “a limiting instruction may have done more harm than good because it could
have focused the jury on an undesirable aspect of the evidence.” App. at 81 (Post-conviction
Findings of Fact and Conclusions of Law at 4).


       The State elaborates on the post-conviction court’s findings contending counsel engaged
in reasonable trial strategy. According to the State, once trial counsel’s objection on foundation
grounds was overruled counsel was left with two choices: “(1) make a hearsay objection and
request a limiting instruction and thereby draw attention to the evidence; or (2) decide not to call
more attention to the evidence. [Defense counsel] chose the latter[.]” Br. of Appellee at 20-21
(footnote omitted). This contention is not supported by the record. After the unsworn statement
had been admitted, defense counsel made repeated references to it throughout the remainder of



                                                 5
the trial. It was defense counsel—not the State—who read aloud in court the portion of Brooks’
unsworn statement that identified Humphrey as the shooter.


       In closing argument, it was defense counsel who highlighted the most damaging piece of
information from Brooks’ unsworn statement to the jury. See R. at 474 (“Recall where the
testimony came regarding Trondo acknowledging that he shot someone, that came from State’s
witness, Brooks.” (emphasis added)). This argument was exacerbated when counsel urged the
jury to “consider the out-of-court statements as evidence in determining the guilt or innocence of
the defendant of the crime charged.” R. at 488-89. Based on this record, it could not have been
counsel’s strategy—to decline to mount a hearsay objection or request a limiting instruction—to
avoid drawing attention to Brooks’ statement. This is so because counsel repeatedly referred to
that which the State claims counsel did not want to draw attention.


       In similar fashion, the State also contends defense counsel wanted Brooks’ unsworn
statement admitted to comport with the “secondary trial strategy . . . to focus on the prior
inconsistent statements to sow reasonable doubt.” Br. of Appellee at 22. We note the following
flaws with this contention. First, assuming it was counsel’s intent to use the unsworn statement
as part of his defense ignores the fact that he attempted, albeit unsuccessfully, to prevent the
statement from being admitted into evidence in the first place. See, e.g., R. at 308 (objecting to
the admission of the statement on foundation grounds); R. at 315 (objecting to the publication of
the statement to the jury). Second, the notion that counsel wanted the unsworn statement
admitted into evidence directly contradicts the State’s position that it was a reasonable strategy
not to object or request a limiting instruction because counsel “decide[d] not to call more
attention to the evidence.” Br. of Appellee at 21. The State argues defense counsel “retreated to
the reasonable secondary defense of not drawing further attention to evidence that was going to
be admitted[,]” but also contends counsel “decided to meet that statement head-on and use it to
show the inconsistencies in the State’s key witnesses.” Id. at 22-23 (citations omitted). These
two proffered strategies advanced by the State directly oppose each other. It defies credulity to
say on the one hand that defense counsel strategically elected not to mount a hearsay objection or
request a limiting instruction to refrain from drawing attention to Brooks’ unsworn statement, but
insist on the other hand that counsel wanted to “use it to show the inconsistencies in the State’s

                                                6
key witnesses.” Id. at 23. Third, counsel rested without presenting any evidence to defend
against the charges—instead electing to argue that the State had failed its burden to prove the
identity of the shooter. See R. at 460 (“The issue here is as the State of Indiana has claimed, is
whether or not Trondo L. Humphrey . . . killed Benjamin Laughlin.” (emphasis added)).
Permitting the jury to consider hearsay statements as substantive evidence that directly supports
Humphrey’s guilt is inconsistent with this strategy; thus, calling into question the presumption
that “counsel provided adequate assistance and exercised reasonable professional judgment.”1
Permitting as substantive evidence an otherwise impermissible unsworn statement claiming that
Humphrey admitted to the murder does not support the trial strategy of arguing to the jury that
the State had failed its burden to prove that Humphrey was the shooter.


        There is no dispute that “tactical or strategic decisions will not support a claim of
ineffective assistance.” McCary, 761 N.E.2d at 392 (alteration and quotation omitted). Also, we
afford great deference to trial counsel’s discretion to choose strategy and tactics. Id. And we
“strongly presume that counsel provided adequate assistance and exercised reasonable
professional judgment in all significant decisions.” Id. (citing Strickland, 466 U.S. at 689-90).
But where the record contradicts the presumption that counsel’s performance was the result of
strategic and tactical planning, we will not afford such deference to counsel’s decision-making.


                             B. Failure to object on hearsay grounds


        At trial, defense counsel lodged an objection to the admission of Brooks’ written
statement solely based on an improper foundation. Specifically, defense counsel declared: “It’s
improper, Your Honor. He’s not been asked proper [sic] question for foundation to offer that as
an exhibit.” R. at 308. Because Brooks admitted to having made the statement and admitted that
the signature on the document was his signature, this objection was overruled and the written



1
  Nor does testimony from the post-conviction hearing support that defense counsel’s decisions were a
conscious choice to advance his trial strategy. The post-conviction court found: “[Trial counsel] did
object on foundation grounds but could not remember due to the passage of time why he did not object
based on hearsay.” App. at 81 (Post-conviction Findings of Fact and Conclusions of Law at 4).
Specifically, trial counsel could not recall the reason for failing to request an admonishment but simply
“surmised that one possibility was trial strategy.” Id. (emphasis added).
                                                   7
statement was admitted into evidence. At no point did defense counsel object based on hearsay.
As we previously observed:

       The statement in question is clearly hearsay if offered to prove the facts contained
       because it was given out of court notwithstanding that Brooks was on the stand.
       This is precisely the point decided in Modesitt v. State, 578 N.E.2d 649 (Ind.
       1991), which overruled Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975).
       Patterson had held that out-of-court statements not given under oath could be
       considered as substantive evidence so long as the declarant was available for
       cross-examination at trial concerning the statement. In its place, Modesitt
       adopted Federal Rule of Evidence 801(d)(1) as the law of Indiana. The Indiana
       Rules of Evidence have since been adopted, and accomplish by Rule what
       Modesitt did by decision. Indiana Evidence Rule 801(d)(1)(A) provides that a
       statement is not hearsay if “[t]he declarant testifies at the trial or hearing and is
       subject to cross-examination concerning the statement, and the statement is . . .
       inconsistent with the declarant’s testimony and was given under oath subject to
       the penalty of perjury at a trial, hearing or other proceeding, or in a deposition[.]”
       Because the prior statement was not under oath, it was not admissible under this
       Rule or any other.

Humphrey I, 680 N.E.2d at 838. A defendant’s objection on grounds of hearsay is critical. This
is so because “[o]therwise inadmissible hearsay evidence may be considered for substantive
purposes and is sufficient to establish a material fact at issue when the hearsay evidence is
admitted without a timely objection at trial.” Banks v. State, 567 N.E.2d 1126, 1129 (Ind. 1991).
Had a proper objection been raised to Brooks’ written statement the trial court would have been
required to sustain it. See Modesitt, 578 N.E.2d at 653-54. By failing to raise a proper objection
counsel’s conduct fell below an objective standard of reasonableness and was thus deficient.


                           C. Failure to request an admonishment


       The State contends counsel did not perform deficiently in failing to request an
admonishment. In this regard the State essentially reprises its argument concerning trial strategy.
According to the State, “either requesting a limiting instruction or objecting to the trial court’s
instruction on prior inconsistent statements would have undermined the strategic focus on the
inconsistencies as showing reasonable doubt.” Br. of Appellee at 23-24.




                                                 8
       Even in instances where otherwise impermissible hearsay is admitted for the limited
purpose of impeachment, “if a defendant believes there is a danger that a jury could use a
statement as substantive evidence, then it is incumbent upon the defendant to request that the
jury be admonished that the statement be used to judge the witness’s credibility only.” Small v.
State, 736 N.E.2d 742, 746 (Ind. 2000) (emphasis added). That never occurred here. “Brooks’
prior inconsistent statement could have been precluded from consideration as substantive
evidence for the reasons explained, [counsel’s] failure to object on hearsay grounds or request a
limiting instruction allowed the jury to consider the statement in deciding Humphrey’s
culpability.” Humphrey I, 680 N.E.2d at 840. As we observed in Appleton v. State:

       Once [the State’s witness] admitted that he made a police statement prior to trial
       that was inconsistent with his testimony regarding [the defendant’s] involvement
       in the incident, impeachment was complete. [The State’s witness] had admitted
       himself a liar. Reciting segments of [his] pretrial statement was thus superfluous.
       The only purpose such recitation could have would be to get the details of [his]
       former statement before the jury as substantive evidence, the very thing we
       decided to prohibit in overruling Patterson.

740 N.E.2d 122, 126 (Ind. 2001) (internal citation omitted). The same is true here. By failing to
request an admonishment or a limiting instruction counsel performed deficiently.


                         D. Failure to object to the jury instruction


       Humphrey contends trial counsel erred by permitting the trial court to improperly instruct
the jury regarding the use of Brooks’ unsworn statement as substantive evidence of his guilt.
The jury was instructed as follows:

       Prior inconsistent statements are defined as statements made by the witness out of
       court which differ from his testimony during this trial. Prior inconsistent
       statements may be considered by you for two purposes. You may use them to
       impeach the capacity for truthfulness of the witness who made the inconsistent
       statements. You may also consider the out-of-court statements as evidence in
       determining the guilt or innocence of the defendant of the crime charged. The
       credibility of a witness may be attacked by introducing evidence that on some
       former occasion the witness made a statement, made a written statement, in
       former testimony testified, or acted in a manner inconsistent with his testimony in
       this case. It is inconsistent if the witness denied making the prior statement.

                                               9
       Evidence of this kind may be considered by you in deciding the weight to be
       given to the testimony of the witness.

Tr. at 394 (emphasis added). At the time of Humphrey’s trial, this instruction mirrored the
pattern jury instruction for prior inconsistent statements. See 2 Ind. Pattern Jury Instructions
(Criminal) 12.19 (2d ed. 1991). However, prior to trial, the Indiana Rules of Evidence were
adopted and this Court expressly overruled prior jurisprudence permitting the use of prior
inconsistent statements as substantive evidence. See Modesitt, 578 N.E.2d at 654 (holding “the
rule enunciated in Patterson [permitting the use of prior inconsistent statements as substantive
evidence] and interpreted by the courts of this State is no longer the law of this State”); Ind. R.
Evid. 801 (adopted effective Jan. 1, 1994). Thus, it was incorrect to inform the jury that it “may
also consider the out-of-court statements as evidence in determining the guilt or innocence of the
defendant of the crime charged.” This was an incorrect statement of the law. Defense counsel
was given the opportunity, yet failed to object to this instruction. The trial court explicitly asked
trial counsel if he had any objection to the proposed, standard instruction and counsel answered
in the negative. See R. at 427. “Had a proper objection been lodged to the instruction, the court
would have been required to entertain it.” Humphrey I, 680 N.E.2d at 840. Accordingly,
Humphrey has shown that counsel performed deficiently by allowing the trial court to instruct
the jury with an incorrect statement of the law.


       For all the reasons set forth above we conclude Humphrey has satisfied the first prong of
the two-part test articulated in Strickland v. Washington, namely Humphrey has shown
“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, 761 N.E.2d at 392 (citing Strickland, 466 U.S. at 687-88).


                                           II. Prejudice


       Deficient performance notwithstanding, Humphrey must also satisfy the second prong of
the Strickland test, namely, “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.”         McCary, 761 N.E.2d at 392 (citing

                                                   10
Strickland, 466 U.S. at 694). In the context of the case before us, Humphrey must demonstrate
that but for counsel’s errors, there was a reasonable probability he would not have been
convicted of murder.


       The State asserts that Humphrey was not prejudiced by the admission of Brooks’
unsworn statement as substantive evidence because “no objection would have prevented
Brooks’s statement from being admitted.” Br. of Appellee at 25 (citations omitted). According
to the State, “this is not a case where a proper objection would have completely prevented
damaging evidence from reaching the jury; instead, a proper objection would have merely led to
a limiting instruction about the potential use of that damaging evidence.” Id. (citation omitted).
But that is precisely the point. Counsel’s deficient performance allowed the jury to consider the
only direct evidence identifying Humphrey as the shooter in determining his guilt to the very
serious charge of murder. Had counsel requested the appropriate admonishment the jury would
have been precluded from considering Humphrey’s alleged admission to the crime in rendering
its decision. And importantly, where the appellant’s claim includes a sufficiency challenge, to
resolve this issue on appeal, “we must exclude from our consideration any evidence that was
introduced to impeach the credibility of a witness. Such evidence is not a part of the substantive
case.” Webster v. State, 413 N.E. 898, 901 (Ind. 1980). Accordingly, evidence improperly
considered by the jury for want of a limiting instruction is no less prejudicial than evidence
presented which should have never been introduced in the first instance. Both permit the jury to
improperly determine guilt based information that should not be considered. Even if Brooks’
unsworn statement was properly admitted for impeachment purposes, counsel failed to limit the
use of that statement to his client’s detriment.


       The case before us is not one “where the probable impact of the evidence on the jury is
‘sufficiently minor so as not to affect the substantial rights of the parties’” because “the hearsay
evidence is merely cumulative of other evidence properly admitted.” Cooley v. State, 682
N.E.2d 1277, 1282 (Ind. 1997) (quoting Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995)).
Instead, Brooks’ unsworn statement was the only evidence identifying Humphrey as the shooter.
To suggest that the jury’s decision was not impacted by this evidence ignores the trial court’s
instruction to the contrary.

                                                   11
          The State also insists there is no prejudice because of statements Brooks made at trial that
were admissible as substantive evidence and confirmed much of the representations Brooks
made in his out-of-court unsworn written statement.2


          The record shows that sometime prior to trial Brooks gave a sworn statement to
Prosecutor Cummings. Although the statement was not introduced into evidence, portions were
referenced during Brooks’ direct examination during the State’s case-in-chief. Relevant portions
follow:

          Q. [Deputy Prosecutor:] That day that you took . . , that Mr. Cummings had you
              testify under oath, across the hall, you told Mr. Cummings that this person
              named “Nano”, that you knew by the street name of “Nano” was the person
              that was with you in your garage the night this fellow from Elwood was
              murdered, is that true?

          A. [Brooks:] Yeah.

R. at 307.

          Q. [Deputy Prosecutor:] On that day you recall Mr. Cummings asking you[,]
             “And what you saw lead you to believe that “Nano” shot somebody in that
             truck, is that right?” You recall answering, “Yeah” to that question? You
             recall that?

          A. [Brooks:] Yeap.

R. at 313.

          Q. [Deputy Prosecutor:] You recall when you testified under oath to Mr.
             Cummings when he asked you [the] question, “After Nano came back to your
             house, did he tell you anything that lead you to believe he shot that guy?”.
             Your answer, “I think I ask.” Question, “You asked him if [sic] shot him?”.
             Your answer, “I ain’t ask him. I ask him what was the noise and I think he
             told me he shot him, but you know, I don’t believe him, you know.”. You
             recall testifying to that?


2
  The State advances this argument for the first time on transfer. And it does so not in its Petition to
Transfer, but for the first time at oral argument. This issue is waived. See State v. Holtsclaw, 977 N.E.2d
348, 350 (Ind. 2012) (finding waiver of appellant’s challenge because “[a]lthough there was some
discussion of the constitutional issue at oral argument, [appellee] did not raise it in his brief in the Court
of Appeals, and it merited only two conclusory sentences in his response to the [appellant’s] transfer
petition”). Waiver notwithstanding, we address the State’s claim which fails on the merits.
                                                     12
         A. [Brooks:] Yeap.
                                         *      *       *

         Q. [Deputy Prosecutor:] Recall Mr. Cummings on that testimony asking you,
            “Further, did Nano tell you he shot him?”. You answered, “Yeap.”. You
            recall that?

         A. [Brooks:] Yeah.

         Q. [Deputy Prosecutor:] Recall further Mr. Cummings saying, “Okay, what words
             did he use?”. Your answer, “Well, I ask him.” His question, “What did you
             say?”. And you answered, “I ask him what was the noise, uh, it was like I
             shot him. And I said like for real man. He like, ‘yeah’, you know. I am still
             thinkin’ he bull[*******’], now quit lyin’. He’s like, okay. You know that
             was it.”. Did you testify to all that?

         A. [Brooks:] Yeap.

R. at 321-22. Conceding that Brooks did not “explicitly” identify Humphrey as the shooter, the
State asserts that by the foregoing exchange, “those dots are connected by other evidence that
allowed the jury to make that connection without the written statement to do it.” Oral Arg.
Video Trans. at 20:31 – 20:38.


         We observe that almost immediately after taking the stand, Brooks asserted that he had
lied to Prosecutor Cummings about knowing “Nano” when he gave his sworn statement. Brooks
also declared he did not recall everything that he initially said because he was just “makin’ up
stuff” when he had spoken with the prosecutor. R. at 306. And as the State continued to
question Brooks about his sworn statement to Prosecutor Cummings, Brooks testified repeatedly
that his statement was fabricated. “The burden was on the people not only to prove, beyond a
reasonable doubt, the commission of the crime charged, but they were further required to prove
in the same degree that defendant was the person who committed it. Where the conviction of a
defendant rests upon an identification which is doubtful, vague, or uncertain and which does not
produce an abiding conviction of guilt to a moral certainty, it should be reversed.” Baker v.
State, 138 N.E.2d 641, 647 (Ind. 1956) (internal citations omitted) (quoting People v. Gold, 196
N.E. 729, 732 (Ill. 1935)), disapproved on other ground by Davis v. State, 232 N.E.2d 867 (Ind.
1968).



                                                13
       More importantly, we disagree with the State’s contention that the jury could infer
Humphrey was the shooter. The following exchange is illuminating:

       Q. [Deputy Prosecutor:] You recall when you testified to Mr. Cummings when
          Mr. Cummings asked you about Trondo Humphrey’s approaching the truck.
          Mr. Cummings asked you, “What did you see him do?”. Your answer, “He
          told me, ‘There go a geek.’ and he ran out there after him. I didn’t see him
          run to the truck or nothin’, I stayed in my own garage.”. You recall testifying
          to that?

       A. [Brooks:] Nope.

       Q. [Deputy Prosecutor:] You don’t recall making that statement?

       A. [Brooks:] He ain’t . . , Trondo name didn’t never come up in it.

       Q. [Deputy Prosecutor:] Okay. Do you recall referring to this person as Nano and
           making that statement?

       A. [Brooks:] Yeah.

R. at 323. Further, as for the connection between “Nano” and Humphrey, Brooks answered,
“Nope,” to the question, “You ever hear Trondo Humphrey’s referred [to] as “Nano.” R. at 306.
The deputy prosecutor followed-up: “Fact, you told Mr. Cummings on that date that you didn’t
know who Trondo Humphrey’s was, didn’t you?” to which Brooks responded, “Yeap.” Tr. at
220.


       On the record before us it is abundantly clear that the only evidence identifying Trondo
Humphrey as the person committing the murder of Benjamin Laughlin was Brooks’ out-of-court
written statement improperly admitted at trial as substantive evidence.


       We are also unpersuaded by the State’s contention that “based on the significant
similarities” between the testimony given by Sites and Smith, “the evidence firmly established
that Humphrey shot Laughlin.” Br. of Appellee at 28. As the State succinctly expressed during
closing argument at trial:

       There was very little by way of exhibits that was presented in this case. Didn’t
       have a lot of physical evidence. We didn’t have. . , didn’t find finger prints, you

                                                14
         heard about that . . . we didn’t find it. Not unusual. We didn’t find a weapon.
         We had it, [sic] you’d of seen it. We didn’t have one. It’s not all the unusual
         either. We had some items of physical evidence, but they would be more
         pertaining to the establishing the fact that in fact the crime occurred, rather than
         tying one particular individual to that particular crime. So, there’s very little
         physical evidence that’s, that’s in existence in this case that we can put before
         you.

R. at 444 (emphasis added).


         Sites’ testimony establishes that Laughlin was shot by a drug dealer in the alley behind
Brooks’ garage during a drug deal gone bad. His testimony merely confirmed that Humphrey
“closely fits” the description of the assailant. See R. at 455 (State arguing in closing: “Mr. Sites
can’t make an identification, but he gave us a description. And a description that very closely fits
the defendant.” (emphasis added)).


         Smith’s testimony places Humphrey in the garage that evening and further demonstrates
that Humphrey was selling drugs in the alley as well. However, there is simply no admissible
evidence that Humphrey possessed a gun that evening let alone that he shot Laughlin. Absent
Brooks’ unsworn hearsay statement, at best the testimony presented by Sites and Smith places
Humphrey at the scene on the night Laughlin was shot, giving him an opportunity to commit the
crime.


         Even though Humphrey closely fit the description of the perpetrator, without Brooks’
unsworn written statement the evidence supporting that he was the shooter is entirely speculative
and circumstantial. It is of course true that “a verdict may be sustained based on circumstantial
evidence alone if that circumstantial evidence supports a reasonable inference of guilt.”
Hampton v. State, 719 N.E.2d 803, 807 (Ind. 1999). But mere presence at the crime scene,
without more, cannot sustain a conviction. Id. Only where the defendant’s presence is combined
with other facts and circumstances have we found a reasonable inference of guilt. In this case,
“[t]he most that is shown is that appellant was in the general area when the killing occurred at
about the time the killing occurred. . . . Showing mere opportunity to commit the crime is not
sufficient.” Glover v. State, 255 N.E.2d 657, 659 (Ind. 1970) (finding “no evidence here from


                                                 15
which a reasonable jury could infer that appellant stabbed [the victim]” even where witness
testified that defendant had fought with the victim that same night and defendant was seen
walking in the direction in which the murder took place just minutes before the witness “noticed
two people fighting . . . then noticed someone dragging something to the trash barrels behind the
tavern” where the victim’s body was discovered).


       Counsel’s errors, which permitted the jury to consider the only evidence identifying
Humphrey as the shooter in determining his guilt or innocence, are sufficient to undermine our
confidence in the verdict rendered in this case. In viewing the evidence without the inadmissible
hearsay statements, we believe there is a reasonable probability the result of Humphrey’s trial
would have been different, namely Humphrey would not have been convicted of murder.


                                           Conclusion


       We conclude that petitioner has shown the evidence leads unerringly and unmistakably to
a conclusion opposite that reached by the post-conviction court. We thus reverse the judgment
of the post-conviction court and remand this cause for a new trial.


Rush, C.J. and David. J., concur.
Massa, J., concurs with separate opinion, in which Slaughter, J., concurs.




                                                16
Massa, J., concurring.

          Twenty-two years have passed since Benjamin Laughlin was murdered in 1995, but now
the man convicted of killing him will get a new trial; an outcome caused by a perfect storm of error
by all involved—the trial court, the prosecutor, and the defense—resulting in a collapse of the
system. I fully concur with Justice Rucker’s dispassionate legal analysis regarding ineffective
assistance of counsel, but I find the remedy so regrettable and avoidable that I write separately to
elaborate on the mistakes made and opportunities missed, and their impact on the question of
laches.


          The breakdown in this case begins with a situation not unusual in criminal proceedings: a
witness identifying a defendant, then, for one reason or another not difficult to imagine, later
recanting his statement. Here, it was Roosevelt Brooks’ unsworn pretrial statement identifying
Humphrey, and Brooks’ subsequent denial at trial. The State admitted, as Exhibit L, Brooks’ prior
inconsistent statement.          The defense objected, not as to hearsay, but foundation, and no
admonishment was sought as to the statement’s limited admissibility. This was the first mistake.
Brooks’ statement was the only evidence directly identifying Humphrey as the shooter and was
damning to Humphrey’s case.


          Then as trial progressed, the prosecution and defense counsel were provided with a copy
of the trial court’s tentative final jury instructions. The instructions reiterated what was known as
the Patterson rule. That rule, however, was overruled nearly six years before Humphrey was tried
for murder by Modesitt.1 Modesitt was undeniably the law at the time of trial. Yet when asked
whether they had any objections, both replied they did not.2 Thus, they gave the trial court

1
  See Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975) (holding an out-of-court statement not given under oath
could be considered as substantive evidence so long as the declarant was available for cross-examination at trial); see
also Modesitt v. State, 578 N.E.2d 649, 653–54 (Ind. 1991) (repudiating the “Patterson” rule and applying Federal
Evidence Rule 801 instead. Indiana later adopted its own similar version of 801 in the Indiana Rules of Evidence in
1994, two years before Humphrey’s trial).
2
  There has been no accusation of knowingly making or failing to correct the false statement of law in this case. But,
it bears reminding that lawyers practicing in this State are bound by the Indiana Rules of Professional Conduct,
particularly the requirement of candor toward the tribunal. See Rule 3.3(a)(1) (“A lawyer shall not knowingly: make
a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made
to the tribunal by the lawyer”); see also Rule 3.3, comment 2 (“[A]lthough a lawyer in an adversary proceeding is not
required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer
must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be
false”).
permission to, in effect, offer the jury an “unlimiting” instruction, if you will.3 All three were
complicit in endorsing the incorrect statement, perhaps simply due to an outdated pattern jury
instruction still inexplicably in use,4 ignorance, or maybe out of zeal for a murder conviction.


         At closing, defense counsel similarly argued to the jury:


                  Prior inconsistent statements may be considered by you for two
                  purposes. You may use [them] to impeach the capacity for
                  truthfulness of the witness or witnesses who made the inconsistent
                  statements. And boy, did we have them. You may also consider the
                  out-of-court statements as evidence in determining the guilt or
                  innocence of the defendant of the crime charged. That’s the law,
                  plain and simple, that’s the instructions. You have to follow what .
                  . , follow what you’re presented.

Tr. at 488–489. Despite being entitled to a limiting admonition, defense counsel repeated the
misstatement of law, permitting the jury to consider out-of-court statements, like Brooks’, for their
truth.

         Humphrey was subsequently convicted of murder, and sentenced to 60 years in prison. He
directly appealed to this Court, which affirmed, while indicating several errors in his trial,
including:

                  The trial court explicitly asked Humphrey’s counsel if he had any
                  objection to the proposed instructions and counsel answered in the
                  negative. Record at 427. Had a proper objection been lodged to the
                  instruction, the court would have been required to entertain it. There
                  is no claim of ineffective assistance of trial or appellate counsel
                  raised in this appeal.




3
  “Prior inconsistent statements are defined as statements made by the witness out of court which differ from his
testimony during this trial. Prior inconsistent statements may be considered by you for two purposes. You may use
them to impeach the capacity for truthfulness of the witness who made the inconsistent statements. You may also
consider the out-of-court statements as evidence in determining the guilt or innocence of the defendant of the crime
charged.” Tr. at 506.
4
  Indeed, as this Court noted in Humphrey’s direct appeal, the “pattern instruction had not been changed to reflect
Rule 801 and the demise of the Patterson rule in Modesitt.” Humphrey I, 680 N.E.2d at 840. And we further reminded
readers that Patterson, which was overruled years before, “does not reflect current law and should not be used in trials
in this state.” Id.

                                                           2
Humphrey I, 680 N.E.2d at 840. Not only does this statement identify the main issue in
Humphrey’s trial, it hints at the method by which Humphrey could obtain relief. Nevertheless,
Humphrey did not petition for post-conviction relief until 15 years after his direct appeal—a delay
that might suggest a successful laches defense for the State if adequately further developed.


         The State sought to prove the affirmative defense of laches to bar Humphrey’s petition.
The State raised the issue in its pleadings, offered some little evidence at the post-conviction
hearing, and even now continues to argue this issue in briefing on appeal. However, astonishingly,
the State failed to include this issue in its proposed findings to the post-conviction court, which
adopted the State’s proposed findings and conclusions verbatim. In due course, Humphrey
appealed and briefing proceeded. By order, the Court of Appeals remanded the case to the post-
conviction court to amend its findings and conclusions to address the issue of laches.5 Pursuant to
the order, the post-conviction court made the requisite findings, concluding the State failed to carry
its burden.


         Laches is an equitable doctrine that bars consideration of the merits of a claim or right due
to “neglect for an unreasonable or unexplained length of time, under circumstances permitting
diligence, to do what in law should have been done.” Perry v. State, 512 N.E.2d 841, 842 (Ind.
1987) (internal quotations omitted).             “For laches to bar relief, the State must prove by a
preponderance of the evidence, first, that the petitioner unreasonably delayed in seeking relief and,
second, that the State has been prejudiced by the delay.” Id. at 843. A petitioner “can seldom be
said to have delayed unreasonably in seeking relief” absent knowledge of a defect or the means of
seeking relief. Id. Direct proof of knowledge is not required, circumstantial evidence can suffice,
but knowledge must be based on a showing of conscious indifference. Id. at 844-45. The State
must “present some objective facts from which the court may draw a reasonable inference of
knowledge”—inquiry notice alone is insufficient. Id. Knowledge may be inferred from facts such
as repeated contact with the criminal justice system, consulting with attorneys, and incarceration
in institutions with legal facilities. Id. at 844. “For post-conviction laches purposes, prejudice



5
 The Court of Appeals found that the post-conviction court failed to address the issue of laches in violation of Indiana
Post-Conviction Rule 1(6), which provides the post-conviction court “shall make specific findings of fact, and
conclusions of law on all issues presented . . .” (emphasis added).

                                                           3
exists when the unreasonable delay operates to materially diminish a reasonable likelihood of
successful re-prosecution.” Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001).


         It appears that the State offered little more than the fact that 15 years had elapsed since
Humphrey’s direct appeal, and the trial court heard testimony from defense counsel that he “[is]
positive [he] never would have talked to [Humphrey]” about post-conviction relief.                             Post-
Conviction Relief Tr. at 41–42. Further, the post-conviction court found that, although some
evidence and witnesses were unavailable, their absence would not “significantly affect the State’s
ability to retry the case.”6 Findings of Fact and Conclusions of Law on Laches filed May 5, 2016
at 3–4 [hereinafter FFCL]. It is true that the mere passage of time without knowledge of a defect
is insufficient to constitute laches, but that isn’t all the State had in its arsenal. See Perry, 512
N.E.2d at 843 (“Unless a petitioner has knowledge of a defect in his conviction or of the means to
seek relief from the conviction, he can seldom be said to have delayed unreasonably in seeking
relief”). The problem is the State failed to deploy other arguments that would have allowed the
post-conviction court to find laches. For instance, the opinion from Humphrey’s direct appeal was
admitted into evidence at the hearing, but the State made no argument about the framework it
provided or that knowledge of remedies could be inferred from it. Similarly, the State made no
arguments asserting the three ways such knowledge may be inferred, as described in Perry. See
Perry, 512 N.E.2d at 844 (repeated contact with the criminal justice system, consulting with
attorneys, and incarceration in institutions with legal facilities). Indeed, the post-conviction court
pointed out this precise flaw: “Humphrey did not testify at the hearing on when he learned he could
file a Petition for Post-Conviction Relief. The State must prove more than inquiry notice to show
unreasonable delay. Perry v. State, 512 N.E.2d 841, 844 (Ind. 1987).” FFCL at 3 (emphasis in
original). Moreover, the post-conviction court noted that the State’s key witnesses were available
for retrial, indicating the State “has not shown the passage of time has affected their memories or
ability to testify at a retrial.” FFCL at 4. In sum, the State could have made its case, but instead
hung its hat on one fact that was insufficient by itself to prove unreasonable delay. The State also




6
 Regarding some of the evidence, the State may have additional evidentiary burdens at retrial due to the development
of Confrontation Clause law, yet another potential issue that, with a better developed record, might have improved the
State’s case for laches.

                                                          4
attempted to prove prejudice by showing witnesses would be unavailable for retrial, but
Humphrey’s counsel was successful in rebuttal.7


        While the State now offers many of these arguments on appeal, it is too late. The State has
the burden of proving laches as an affirmative defense, thus the judgment regarding laches will be
affirmed unless clearly erroneous. Armstrong, 747 N.E.2d at 1120. We review for sufficiency of
the evidence, considering the evidence and reasonable inferences favorable to the judgment,
neither reweighing the evidence nor assessing the credibility of witnesses. Id. Given this standard
and the record before this Court, we are compelled to affirm the post-conviction court’s
determination that Humphrey’s petition was not barred by laches. But make no mistake, being
compelled to act is a far cry from being satisfied with the outcome, particularly when the
outcome—retrial of a convicted murderer two decades later—can subject the criminal justice
system to the dismayed contempt of survivors and the public writ large.



Slaughter, J., concurs.




7
 The following exchange occurred at the post-conviction hearing after testimony regarding the availability of
certain witnesses:
                   The Court:              Okay. What’s the relevance of the witnesses that you
                                           talked about and presented evidence in regard to their
                                           locat[ion]?
                   [Public Defender]:      To show they’re available. . . .
                   The Court:              Well, and what did you wish to accomplish with [the
                                           witnesses] now?
                   [Public Defender]:      Show [they are] available, Your Honor. To show…
                   The Court:              For what?
                   [Public Defender]:      [They are] available for retrial. The State - - the
                                           reason the State went through the business of trying
                                           to establish that certain were or were not available is,
                                           my understanding, is they’re relying on a[n]
                                           affirmative defense . . . of laches.
                   The Court:              Okay. Thank you for clear[ing] that up. . . .
Post-Conviction Relief Tr. at 63.

                                                         5
