Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                  Aug 02 2013, 6:31 am
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.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

SCOTT H. DUERRING                                 GREGORY F. ZOELLER
Duerring Law Offices                              Attorney General of Indiana
South Bend, Indiana
                                                  JODI KATHRYN STEIN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

RANDY REEDER,                                     )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )      No. 71A05-1210-PC-540
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable John M. Marnocha, Judge
                              Cause No. 71D02-0901-PC-7



                                        August 2, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                  STATEMENT OF THE CASE

        Randy Reeder utilized the Davis/Hatton procedure1 to bring this consolidated

direct and post-conviction appeal challenging his four convictions for murder and his

sentence. Reeder raises several issues for our review, which we consolidate and restate

as follows:

        1.      Whether the post-conviction court erred when it concluded that
                Reeder was not denied the effective assistance of counsel;

        2.      Whether the trial court committed fundamental error when it
                admitted certain evidence or instructed the jury; and

        3.      Whether Reeder’s aggregate sentence of 260 years is inappropriate
                in light of the nature of the offenses or Reeder’s character.

        We affirm Reeder’s convictions and sentence.

                           FACTS AND PROCEDURAL HISTORY

        In December of 2006, Reeder was homeless and shared a room in the basement of

an abandoned chemical plant, known as “the fort,” in South Bend with a long-time friend,

Daniel Sharp. Reeder and Sharp used a propane heater to stay warm. To prevent other

homeless men who lived at the fort from taking the heater, they locked the door to their

room. But in the late evening of December 20th, Reeder and Sharp entered their room to

discover their propane tank missing and their room in disarray. Sharp heard the heater




        1
           The Davis/Hatton procedure terminates or suspends a previously initiated direct appeal, upon a
request for remand or stay, in order to allow the defendant to pursue a petition for post-conviction relief in
the trial court. Hatton v. State, 626 N.E.2d 442 (Ind. 1993); Davis v. State, 267 Ind. 152, 368 N.E.2d
1149 (1977). This procedure allows the defendant to develop an evidentiary record with regard to certain
claims raised on direct appeal. See Peaver v. State, 937 N.E.2d 896, 899 (Ind. Ct. App. 2010), trans.
denied. Issues initially raised in the direct appeal as well as those determined in the post-conviction relief
proceeding may be raised on appeal from the post-conviction court’s judgment. See Slusher v. State, 823
N.E.2d 1219, 1222 (Ind. Ct. App. 2005).
                                                      2
running upstairs in a room occupied by four other homeless men: Michael Nolan, Jr.,

Michael Lawson, Jason Coates, and Brian Talboom.

       Early the next morning, Talboom and Coates left the fort. Reeder grabbed a three-

foot-long metal pipe, Sharp grabbed a hammer, and the two men entered the upstairs

room. Reeder and Sharp kicked open the upstairs door and attacked Nolan and Lawson.

Reeder beat Lawson to death. Reeder and Sharp nearly beat Nolan to death. They then

positioned themselves to ambush Talboom and Coates upon their return. Reeder and

Sharp lay in wait for about two hours. As Talboom and Coates entered the fort, Sharp

attacked Talboom and Reeder attacked Coates before also striking Talboom.          Both

victims were bludgeoned to death. Reeder and Sharp then heard Nolan making noises

from his room. Reeder returned to the room and beat Nolan to death.

       Thereafter, Reeder and Sharp cleaned themselves up. Sharp collected the pipe,

hammer, and their clothes and shoes and threw them in a nearby river. About a week

after the murders, Reeder and Sharp dropped the victims’ bodies down two nearby

manholes. However, a shoeprint was left in the course of moving the bodies when Sharp

stepped in the blood of one of the victims.

       On January 9, 2007, local police began investigating the whereabouts of the four

murdered men. South Bend Police Sergeant Ron Glon knew homeless men stayed at the

fort and knew that those men would occasionally take copper from nearby underground

substations.   While showing the area to another officer, Sergeant Glon removed a

manhole cover and observed two of the victims’ bodies.         Two days later, police

discovered the other two victims nearby. Later autopsies revealed that each of the four


                                              3
victims died of cranio-cerebral trauma consistent with blunt force impacts from a pipe

and a hammer.

       Officers began searching the fort for evidence. Among other things, the officers

observed the bloody shoeprint, which was especially noticeable for an “imperfection in

the heel.” Transcript at 783. On January 30, officers interviewed Sharp and noticed that

he was wearing shoes that matched the bloody shoeprint. Officers arrested Sharp and

analyzed his shoe, which turned out to be a match to the shoe that created the bloody

shoeprint.

       Thereafter, Sharp confessed to the murders and implicated Reeder. Sharp walked

officers through the fort and provided a detailed description of how the murders unfolded,

which corroborated the physical evidence the police had already discovered. Sharp

agreed to testify against Reeder in exchange for a maximum term of sixty-five years

incarceration.

       On February 5, 2007, the State charged Reeder with four counts of murder. While

awaiting trial, Reeder shared a prison cell with Luke Henderson. Reeder described

himself to Henderson as “the manhole killer.” Id. at 574. Over the next several days,

Reeder described to Henderson how he and Sharp had murdered their four victims.

Henderson “figured that maybe [he] could use the information to the best of [his]

advantage,” and he contacted the homicide unit and shared Reeder’s statements. Id. at

586.

       The court held Reeder’s jury trial in August of 2007. Sharp and Henderson both

testified for the State and against Reeder. An investigating officer, Detective Randy


                                            4
Kaps, also testified regarding statements made to him by both Sharp and Henderson.

And, in describing the victims’ deaths, the State had twenty-six autopsy photographs

admitted into the record. Finally, various jury instructions informed the jury that, if the

State proved its case beyond a reasonable doubt, the jury “should” convict Reeder.

Appellant’s App. at 30-34. The jury found Reeder guilty as charged, and the trial court

sentenced Reeder to an aggravated term of sixty-five years for each conviction, to be

served consecutively for a total term of 260 years.

       Reeder appealed his convictions and sentence, and we dismissed his appeal

without prejudice pursuant to the Davis/Hatton procedure. Before the post-conviction

court, Reeder raised numerous allegations of ineffective assistance of trial counsel.

Following an evidentiary hearing, on September 17, 2012, the post-conviction court

denied Reeder’s petition for relief. In particular, the post-conviction court entered the

following findings of fact and conclusions of law:

             ISSUE No. 1: [Whether] Reeder’s trial counsel failed to
       adequately investigate the existence of an alibi or the existence of alibi[-
       ]type evidence[,] which would have contradicted the testimony of
       Daniel Sharp.

              At the evidentiary hearing held on Reeder’s petition, Bryan and
       Valena Hughes testified at or near the time of the murders that Reeder was
       living with them, at their home in Niles, Michigan. . . .

               However, Bryan and Valena Hughes’ memory was vague and not
       complete. Bryan Hughes testified that there were times when Reeder was
       not at the Hughes[’] home . . . and Valena Hughes could not recall the exact
       dates that Reeder was at the Hughes[’] home, except to say th[at] “he was
       there most nights.”

             Further, even if the Hugheses had testified at trial, their testimony
       would have been contradicted by [six] other witnesses. . . .


                                             5
        Additionally, [trial counsel Brian] May testified that he and Reeder
had discussed the possibility of filing an alibi defense and calling the
Hugheses to testify, but that Reeder had decided to forego the defense and
go to trial as scheduled.

       Accordingly, the court finds as follows:
       1.    The Hughes[es’] testimony would not have provided Reeder
with a complete alibi defense.
       2.    That the Hugheses[’] testimony would have been
controverted by other [S]tate’s witnesses.
       3.    That Mr. May consulted with Reeder concerning the
Hugheses’ testimony and Reeder decided against delaying the trial.
       4.    That foregoing an alibi defense, in favor of going to trial as
scheduled, was a tactical decision.

       Accordingly, the court concludes that Reeder’s trial counsel was
not ineffective with respect to this issue.

                                   ***

      ISSUE No. 3: [Whether] Reeder’s trial counsel failed to contact
and depose Jeff Kirkland and Jeff Smith; failed to call, as a witness,
Eric Logan; and failed to adequately cross examine a [S]tate’s witness,
Luke Henderson.

       At the PCR hearing, Reeder testified that he believed that Jeff Smith
and Eric Logan were present in the courtroom when Daniel Sharp entered
his plea of guilty with respect to these murders. He testified as to what
Smith and Logan told him Sharp [had] said at his plea hearing. Neither a
transcript of Sharp’s plea hearing was introduced as evidence at Reeder’s
PCR hearing, nor did Smith or Logan testify at that hearing. Further,
neither Smith nor Logan testified at Reeder’s trial.

        Reeder also claims that a transcript of Sharp’s plea hearing would
have been, in some way, helpful to him at trial. Daniel Sharp did testify at
trial and was subject to cross-examination.

       As to Jeff Kirkland, Reeder’s claim is that Kirkland, if called as a
witness, would have testified that Sharp stated that he was going to “frame”
[R]eeder for the murders. However, in his trial testimony, not only did
Daniel Sharp testify as to Reeder’s involvement in the murders, but also
[as] to his own. Further, Sharp’s testimony was corroborated by Luke
Henderson, who testified that Reeder admitted to the killings.


                                     6
               At trial, Mr. May cross-examined Henderson as to his criminal
       record; as to Henderson’s intent to use the information which he got from
       Reeder to his best advantage; as to his hoping to receive a lower sentence or
       “time cut” as a result of his prov[id]ing information; and as to Daniel
       Sharp’s plea hearing. Mr. May did not believe that it would be “helpful” to
       call other prisoners to testify concerning Henderson.

                                            ***

               Accordingly, the court finds as follows:
               1.     The only testimony offered at the PCR hearing as to what Jeff
       Smith, Jeff Kirkland, and Eric Logan[] might have said were the hearsay
       statements offered by Reeder, which the court finds to be self-serving,
       uncorroborated, and unconvincing.
               2.     The decision to not call witnesses (other prisoners) was a
       tactical decision made by Mr. May.
               3.     Mr. May adequately cross-examined Henderson, not only to
       the substance of his knowledge, but as to his motivations for testifying, and
       his credibility as a witness.
               4.     Mr. May adequately and completely cross-examined Daniel
       Sharp.

               Accordingly, the court concludes that Reeder’s trial counsel was
       not ineffective with respect to this issue, and, further, that Reeder has failed
       in his burden of proof.

Id. at 95-100 (citations and footnote omitted). This appeal ensued.

                            DISCUSSION AND DECISION

                     Issue One: Reeder’s Post-Conviction Appeal

       We first consider Reeder’s appeal from the post-conviction court’s denial of his

petition for post-conviction relief. Our standard of review is well established:

       The petitioner bears the burden of establishing his grounds for post-
       conviction relief by a preponderance of the evidence. Ind. Post-Conviction
       Rule 1(5); Harrison v. State, 707 N.E.2d 767, 773 (Ind. 1999), cert. denied,
       529 U.S. 1088, 120 S. Ct. 1722, 146 L. Ed. 2d 643 (2000). To the extent
       the post-conviction court denied relief in the instant case, [the petitioner]
       appeals from a negative judgment and faces the rigorous burden of showing
       that the evidence as a whole “‘leads unerringly and unmistakably to a
       conclusion opposite to that reached by the [ ] court.’” See Williams v.
                                              7
       State, 706 N.E.2d 149, 153 (Ind. 1999) (quoting Weatherford v. State, 619
       N.E.2d 915, 917 (Ind. 1993)), cert. denied, 529 U.S. 1113, 120 S. Ct. 1970,
       146 L. Ed. 2d 800 (2000). It is only where the evidence is without conflict
       and leads to but one conclusion, and the post-conviction court has reached
       the opposite conclusion, that its decision will be disturbed as contrary to
       law. Bivins v. State, 735 N.E.2d 1116, 1121 (Ind. 2000).

Peaver v. State, 937 N.E.2d 896, 900 (Ind. Ct. App. 2010), trans. denied. Further, we

review the post-conviction court’s factual findings under a clearly erroneous standard.

Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). We will not reweigh the

evidence or judge the credibility of witnesses. Id.

       Reeder’s arguments on appeal are premised on his theory that he was denied the

effective assistance of trial counsel. A claim of ineffective assistance of counsel must

satisfy two components. Strickland v. Washington, 466 U.S. 668 (1984). First, 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. Id. at 687-88. Second, 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. at 694.

       Here, Reeder asserts that the post-conviction court erred when it denied his

petition for three reasons. First, Reeder argues that his counsel rendered ineffective

assistance when he failed to call the Hugheses as witnesses to provide alibi testimony.

Second, Reeder contends that his trial counsel’s failure to call Eric Logan as a witness

was not a tactical decision. And, third, Reeder asserts that his trial counsel failed to



                                             8
adequately cross-examine Henderson regarding whether Henderson had learned of the

allegations against Reeder by attending Sharp’s guilty plea hearing.2

       Reeder has not satisfied his burden on appeal. The post-conviction court expressly

found that the Hugheses’ testimony was “vague” and “would not have provided Reeder

with a complete alibi defense.” Appellant’s App. at 96-97. The court further found that,

regardless of whether calling Logan as a witness was a tactical decision, Reeder’s “self-

serving, uncorroborated, and unconvincing” evidence regarding Logan’s purported

statements was not worthy of credit. Id. at 99. And the court held that, even without the

missing pages from Sharp’s guilty plea transcript, May adequately cross-examined

Henderson. Id. at 99-100. The burden to prove the relevance of Sharp’s guilty plea

transcript was on Reeder, and his mere speculation that it might have been helpful to him

does not demonstrate reversible error.

       As such, none of Reeder’s arguments on appeal from the post-conviction court’s

judgment demonstrates that “the evidence is without conflict and leads to but one

conclusion, and the post-conviction court has reached the opposite conclusion.” Peaver,

937 N.E.2d at 900. Reeder’s arguments on appeal are merely requests for this court to

reweigh the evidence before the post-conviction court, which we will not do. We affirm

the post-conviction court’s judgment.

                            Issue Two: Reeder’s Direct Appeal
                                Challenge to his Convictions

       We next consider Reeder’s challenge to his convictions on direct appeal.

Specifically, Reeder asserts the following: (1) that the trial court committed fundamental
       2
           Reeder’s second and third arguments on appeal were both addressed under “ISSUE No. 3” in
the post-conviction court’s order.
                                                9
error when it permitted Detective Kaps to testify regarding statements made to him by

Sharp and Henderson; (2) that the trial court committed fundamental error when it

permitted the State to introduce the autopsy photographs3; and (3) that the trial court

committed fundamental error when it instructed the jury that, if the State proved its case

beyond a reasonable doubt, it “should” convict Reeder. See Appellant’s App. at 30-34.

        To constitute fundamental error, the error must constitute a blatant violation of

basic principles, the harm or potential for harm must be substantial, and the resulting

error must deny the defendant fundamental due process. Brown v. State, 799 N.E.2d

1064, 1067 (Ind. 2003) (quotation omitted). It must be so prejudicial to the rights of a

defendant as to make a fair trial impossible. Id. (quotation omitted). “[W]e view this

exception as an extremely narrow one, available only when the record reveals clearly

blatant violations of basic and elementary principles of due process, and the harm or

potential for harm cannot be denied.” Canaan v. State, 683 N.E.2d 227, 235 n.6 (Ind.

1997) (quotations and alteration omitted), cert. denied, 524 U.S. 906 (1998).

        None of Reeder’s arguments demonstrates fundamental error. Detective Kaps’

testimony regarding statements made to him by Sharp and Henderson, who were

themselves witnesses subject to cross-examination, was not a blatant violation of

Reeder’s basic rights. See Ind. Evidence Rule 801(d)(1)(B) (allowing testimony on a

        3
           Reeder raised this issue to the post-conviction court under the claim that his trial counsel
rendered ineffective assistance for failing to object to the autopsy photographs, and the post-conviction
court denied Reeder’s petition for relief on this issue. But Reeder does not appeal that portion of the post-
conviction court’s judgment, instead raising the issue as a question of fundamental error on direct appeal.
We have serious reservations about allowing a defendant to use the Davis/Hatton procedure to develop an
evidentiary record on an issue, lose on that issue in the post-conviction court, and then ignore the adverse
ruling by reframing the issue as an issue on direct appeal. See, e.g., Peaver, 937 N.E.2d at 899-900
(holding that a defendant “may not divide the specific [ineffective assistance of counsel] contentions
alleged between his direct appeal and his petition for post-conviction relief”). Nonetheless, as the State
does not suggest that this issue is procedurally foreclosed from appellate review, we briefly address it.
                                                     10
prior witness’s statements “consistent with the declarant’s testimony, offered to rebut an

express or implied charge against the declarant of recent fabrication or improper

influence or motive, and made before the motive to fabricate arose”). Neither is the

admission of gruesome autopsy photographs blatant error. See, e.g., Helsley v. State, 809

N.E.2d 292, 296 (Ind. 2004) (“even gory and revolting photographs may be admissible as

long as they are relevant to some material issue or show scenes that a witness could

describe orally.”) (alteration and quotation omitted). And the court’s instructions that the

jury “should” render a verdict consistent with its view of the evidence also is not a blatant

violation of Reeder’s basic rights. See, e.g., Morgan v. State, 755 N.E.2d 1070, 1073-74

(Ind. 2001) (rejecting a similar argument). Accordingly, we affirm Reeder’s convictions.

                          Issue Three: Reeder’s Direct Appeal
                                Challenge to his Sentence

       Finally, Reeder appeals his 260-year aggregate sentence under Indiana Appellate

Rule 7(B).    Although a trial court may have acted within its lawful discretion in

determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution

“authorize[] independent appellate review and revision of a sentence imposed by the trial

court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original).

This appellate authority is implemented through Indiana Appellate Rule 7(B).              Id.

Revision of a sentence under Appellate Rule 7(B) requires the appellant to demonstrate

that his sentence is inappropriate in light of the nature of his offense and his character.

See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

2007). We assess the trial court’s recognition or non-recognition of aggravators and

mitigators as an initial guide to determining whether the sentence imposed was
                                             11
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

defendant must persuade the appellate court that his or her sentence has met th[e]

inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration original).

       Moreover, “sentencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts to tailor

an appropriate sentence to the circumstances presented. See id. at 1224. The principal

role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. Whether we

regard a sentence as inappropriate at the end of the day turns on “our sense of the

culpability of the defendant, the severity of the crime, the damage done to others, and

myriad other facts that come to light in a given case.” Id. at 1224.

       Reeder’s sentence is not inappropriate. The nature of Reeder’s offenses was brutal

and callous. And Reeder has an extensive criminal history consisting of four prior

felonies and sixteen prior misdemeanors over nearly twenty years. Moreover, we are not

persuaded by Reeder’s suggestion on appeal that his sentence should be commensurate

with Sharp’s sixty-five year sentence when Sharp, and not Reeder, fully cooperated with

the State in investigating and prosecuting the instant offenses and pleaded guilty. Thus,

we affirm Reeder’s sentence.

                                        Conclusion

       We affirm Reeder’s convictions and sentence.

       Affirmed.

BAILEY, J., and BARNES, J., concur.


                                             12
