Pursuant to Ind.Appellate Rule 65(D),
this 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.
APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE

THOMAS CURTIS EDMOND                                GREGORY F. ZOELLER
Pendleton, Indiana                                  Attorney General of Indiana

                                                    KARL M. SCHARNBERG
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                            Apr 17 2014, 10:26 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

THOMAS CURTIS EDMOND,                               )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 45A03-1303-PC-90
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                           The Honorable Salvador Vasquez, Judge
                               Cause No. 45G01-9912-CF-229



                                          April 17, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge
                                 Case Summary and Issues

       Thomas Edmond, pro se, appeals the post-conviction court’s denial of his petition for

post-conviction relief, raising the following issues for our review: (1) whether Edmond

received ineffective assistance of trial counsel; and (2) whether Edmond received ineffective

assistance of appellate counsel. Concluding the post-conviction court did not err in denying

Edmond’s petition, we affirm.

                                Facts and Procedural History

       Many of the facts surrounding Edmond’s convictions were recounted by this court in

Edmond’s direct appeal:

       Edgar Davis was a steel mill worker. Sometime in the summer or fall of 1999,
       he opened a neighborhood bar and lounge in Hammond, Indiana: Mr. D’s.
       Davis established, and posted, rules concerning patronage of the bar. Included
       in these rules was a prohibition against entering the bar with a drink, even if
       one had purchased it at Mr. D’s earlier in the evening, left with it, and
       returned. Davis employed his son, Tyrone, to work at the door in order to
       enforce the rule prohibiting entry (or re-entry) with a drink.

       Sometime in November of that year, the defendant, Thomas Curtis Edmond,
       came to Mr. D’s for the first time. When he left the establishment and returned
       with a drink, Tyrone Davis denied him reentry unless and until he finished his
       drink. Edmond ignored Tyrone, entered Mr. D’s and sat at the bar. Mr. Davis
       and Tyrone confronted Edmond who pushed Mr. Davis. Davis drew a weapon
       and called the police. The police removed Edmond who left proclaiming that
       the bar was “raggedy” and he would “come back and shoot it up.” Mr. Davis
       barred Edmond from returning to Mr. D’s in the future.

       In the month that followed, the defendant repeatedly returned to the bar,
       apologizing and asking to be admitted. Ultimately, Mr. Davis accepted
       Edmond’s apology but still declined to admit him[.]

       On December 19, 1999, at approximately 2:30 a.m., Edmond and two friends
       came to the bar, again apologizing, again asking to be admitted. Tyrone and
       Edgar repeatedly told Edmond to leave. When he refused to go, Edgar struck


                                             2
       him with his hand and then with a gun. A fight began. Tyrone Davis pushed
       Edmond’s friends out the door and pulled Edmond into the bar. Then, the
       Davis[es] began beating Edmond. They pushed him out the door some five
       minutes after the fighting began. According to Tyrone, Edmond came back in
       the bar fifteen to twenty seconds later and shot first Edgar and then Tyrone
       Davis. After shooting Tyrone, Edmond continued to shoot [Edgar]. Witness
       Neamon Walton, who was standing in a doorway of Mr. D’s when the
       shooting started, testified that the “Edmond boy” reached around him in the
       doorway and started shooting. Edgar Davis died as a result of the gunshot
       wounds.

Edmond v. State, 790 N.E.2d 141, 143-44 (Ind. Ct. App. 2003) (citations omitted), trans.

denied. Edmond was charged with murder, attempted murder, and battery with a deadly

weapon, a Class C felony. Following a jury trial, Edmond was convicted of voluntary

manslaughter as a lesser included offense of murder; attempted murder; and battery. He

received an aggregate sentence of sixty years in the Indiana Department of Correction.

       Edmond appealed, and his appellate counsel filed a Davis petition to stay the direct

appeal in order to hold a hearing for post-conviction relief. The post-conviction court denied

Edmond’s petition, and that ruling was affirmed by this court on June 17, 2003. Id. at 146.

       In October 2007, Edmond, pro se, petitioned this court for permission to file a

successive petition for post-conviction relief. Edmond’s petition was granted in January

2008. A post-conviction relief hearing was held on March 19, 2009, and Edmond argued he

received ineffective assistance from both his trial counsel and appellate counsel. The court

issued an order denying Edmond’s successive petition for post-conviction relief on February

15, 2013. Edmond now appeals the denial of his petition. Additional facts will be supplied

as necessary.




                                              3
                                  Discussion and Decision

                                I.      Standard of Review

       A petitioner seeking post-conviction relief bears the burden of establishing grounds

for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner

who is denied post-conviction relief appeals from a negative judgment, which may be

reversed only if “the evidence as a whole leads unerringly and unmistakably to a decision

opposite that reached by the post-conviction court.” Stevens v. State, 770 N.E.2d 739, 745

(Ind. 2002), cert. denied, 540 U.S. 830 (2003). We defer to the post-conviction court’s

factual findings, unless they are clearly erroneous. Id. at 746.

       The Sixth Amendment’s “right to counsel is the right to the effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a claim of ineffective assistance of

counsel, a convicted defendant must show (1) that counsel’s performance was deficient such

that it fell below an objective standard of reasonableness based on prevailing professional

norms and (2) the defendant was prejudiced by counsel’s deficient performance. Id. at 687.

When considering whether counsel’s performance was deficient, the reviewing court begins

with a “strong presumption” that counsel’s performance was reasonable. Id. at 689. A

defendant is prejudiced if “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.



                                              4
       The two prongs of the Strickland test—performance and prejudice—are independent

inquiries, and both prongs need not be addressed if the defendant makes an insufficient

showing as to one of them. Id. at 697. For instance, “[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be

followed” without consideration of whether counsel’s performance was deficient. Id.

                           II.     Ineffective Assistance of Counsel

       On appeal, Edmond raises claims of ineffective assistance by both his trial counsel

and appellate counsel, based on a number of alleged deficiencies. We will address each of

Edmond’s arguments below.

                                         A. Trial Counsel

       Edmond’s arguments regarding trial counsel revolve around three separate jury

instructions given at his trial. Edmond contends his trial counsel was ineffective for failing

to object to those instructions.

                   1.      Final Instruction 17: Accomplice Liability Instruction

       First, Edmond argues he received ineffective assistance because his trial counsel failed

to object to Final Jury Instruction 17, which dealt with the law of accomplice liability.

Instruction 17 provided:

       It is a fundamental principle of law that where two or more persons engage in
       the commission of an unlawful act, each person is criminally responsible for
       the actions of each other person which were a probable and natural
       consequence of their common plan, even though not intended as part of the
       original plan. Under these circumstances, it is not essential that participation
       of any one person to each element of the crime be established.




                                               5
       Under Indiana law, a person who knowingly or intentionally aids, induces, or
       causes another person to commit an offense commits that offense, even if the
       other person 1) has not been prosecuted for the offense; 2) has not been
       convicted of the offense; or 3) has been acquitted of the offense.

       To aid under the law is to knowingly aid, support, help or assist in the
       commission of a crime. Mere presence at the scene of the crime and
       knowledge that a crime is being committed are not sufficient to allow an
       inference of participation. It is being present at the time and place and
       knowingly doing some act to render aid to the actual perpetrator of the crime.
       The presence of a person at the scene of the commission of a crime and
       companionship with another person engaged in the commission of the crime
       and a course of conduct before and after the offense are circumstances which
       may be considered in determining whether such person aided and abetted the
       commission of such crime.

Appellant’s App. at 162 (quotation marks omitted).

       To convict a defendant of the crime of attempted murder, the State has the burden of

proving the defendant had the specific intent to kill, and it is not enough that a defendant act

“knowingly or intentionally.” Spradlin v. State, 569 N.E.2d 948, 950-51 (Ind. 1991). Jury

instructions must conform to this requirement. Id.

       In Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000), our supreme court set down a

similar requirement where a case involves the issue of accomplice liability:

       to convict for the offense of aiding an attempted murder, the State must prove:
       (1) that the accomplice, acting with the specific intent to kill, took a substantial
       step toward the commission of murder, and (2) that the defendant, acting with
       the specific intent that the killing occur, knowingly or intentionally aided,
       induced, or caused the accomplice to commit the crime of attempted murder.

Language regarding specific intent was not included in Instruction 17, and it is on this ground

that Edmond alleges error. Indeed, the Indiana Supreme Court has found occasion to

conclude such error may constitute fundamental error. See, e.g., Williams v. State, 737



                                                6
N.E.2d 734, 740-41 (Ind. 2000). It is Edmond’s position that the jury may have concluded he

was guilty of attempted murder under a theory of accomplice liability without a proper

instruction regarding specific intent as required by Bethel.

       An identical argument under similar facts was made in Cowherd v. State, 791 N.E.2d

833 (Ind. Ct. App. 2003), trans. denied. In Cowherd, Cowherd and another man walked into

a gas station where Cowherd’s ex-girlfriend worked. When Cowherd approached his ex-

girlfriend at the register, another employee reached for the phone, and Cowherd said “Bitch,

you wanna call the police.” Id. at 835. Cowherd moved his right hand toward his pants, and

there was gunfire immediately after. Police pursued Cowherd and recovered a pistol

Cowherd threw from his car while attempting to flee. Cowherd was convicted of attempted

murder. In his petition for post-conviction relief, Cowherd relied on Williams, arguing an

accomplice liability instruction given at trial did not properly state the specific intent

requirement for attempted murder. However, we distinguished Cowherd’s case from

Williams on two grounds: “(1) the evidence was sufficient to convict Cowherd of attempted

murder as a principal; and (2) the jury was properly instructed regarding the elements of

attempted murder.” Id. at 841. For those reasons, we held Cowherd was not prejudiced by

his counsel’s failure to object to the accomplice liability instruction. Id. We reach the same

conclusion in this case. Although an objection to Instruction 17 may have been sustained, we

do not believe there is a reasonable probability the outcome of Edmond’s trial would have

been different had such an objection been made. Thus, we conclude Edmond was not

prejudiced by his counsel’s failure to object to the instruction.



                                              7
        The trial record indicates that Frederick Edmond, Edmond’s brother, supplied

Edmond with the gun. During the instruction conference, the State indicated it wanted

Instruction 17 to assuage jury concerns as to why Frederick Edmond was not also on trial and

to inform the jury “whether or not to consider at least whether [other persons] have been

charged, convicted, whatever.” Trial Transcript at 905. This is confirmed by the State’s only

mention of the accomplice liability instruction during closing arguments; referencing

Instruction 17, the State informed the jury that it was not to consider whether Frederick

Edmond had been prosecuted and that “this is only the trial of this defendant.” Id. at 963.

        Unlike Bethel and Williams, which each involved facts where the defendants were

acting as an accomplice and the State pursued convictions on that basis, the State’s case

against Edmond was strictly based upon the theory that Edmond was the shooter. The

evidence presented against Edmond was more than sufficient to obtain a conviction for

attempted murder, including two eyewitnesses who identified Edmond as the shooter and

another witness who testified to seeing Edmond with a gun immediately after the shooting.

Further, the jury was properly instructed regarding the elements of attempted murder.1 And

importantly, Edmond’s brief does not point to any fact in the record or provide argument that

Edmond could have plausibly been convicted under a theory of accomplice liability, rather

than as the shooter. Under the circumstances of this case, we conclude Edmond has not

demonstrated he was prejudiced by his counsel’s failure to object to Instruction 17.




        1
          The trial court gave three instructions regarding attempted murder, all of which correctly referenced
the proper specific intent requirement. Final Instruction 12 contained language quoted verbatim from our

                                                      8
                      2.      Final Instruction 27: Prior Identification Instruction

        Next, Edmond asserts his trial counsel was ineffective for failing to object to Final

Jury Instruction 27. Instruction 27 read: “A statement of identification of a person made

shortly after perceiving the person, although now recanted, may be considered as substantive

evidence.” Appellant’s App. at 172. Edmond believes an objection was appropriate because

the instruction focused the jury’s attention on certain evidence, presented a legal issue

irrelevant to the jury’s function, and misled the jury by using the word “substantive.”

        At trial, the State called Naemon Walton as a witness against Edmond. Walton

testified he was inside the bar on the night of the shooting. When asked whether he saw the

person who perpetrated the shooting, Walton said “not really.” Tr. at 357. The State then

confronted Walton with a pretrial statement made to police in which he identified Edmond as

the shooter. Edmond’s counsel objected, but the trial court overruled the objection and

allowed the State to impeach Walton. The trial court admonished the jury, saying the

statement to police was to be considered only for impeachment purposes and that Walton’s

trial testimony was substantive evidence. Eventually, Walton clarified that he indeed

identified Edmond as the shooter by his hair, clothes, and side of his face, but Walton did not

see Edmond from the front. During the instruction conference, the State tendered a version

of Instruction 27, arguing that prior identifications may be considered substantive evidence

and that the trial court’s admonishment was improper. The trial court agreed, and Instruction

27 was given.



supreme court’s decision in Spradlin, supra.

                                                 9
       First, Edmond asserts “Instruction 27 was an incorrect statement of law and should not

have been given by the court.” Brief of Appellant at 10. Edmond is mistaken. At the time of

trial, Indiana Evidence Rule 801(d)(1)(C) provided “[a] statement is not hearsay if . . . [t]he

declarant testifies at the trial . . . and is subject to cross-examination concerning the

statement, and the statement is . . . one of identification of a person made shortly after

perceiving the person . . . .” Instruction 27 is merely a restatement of Rule 801(d)(1)(C) and

thus is a correct statement of the law. Moreover, the instruction was necessary to cure an

incorrect admonishment previously given by the trial court. Trial counsel did not perform

deficiently by not objecting to Instruction 27. See Jackson v. State, 683 N.E.2d 560, 563

(Ind. 1997) (stating counsel does not perform deficiently for failing to object at trial unless an

objection would have been successful).

       Edmond’s remaining arguments against Instruction 27 are without merit. The

instruction did not unfairly highlight Walton’s prior statements over his trial testimony. This

is primarily because Walton’s prior statement and trial testimony were substantially similar,

in that he identified Edmond as the shooter in both instances. Edmond claims the instruction

was irrelevant to the jury’s function as fact finder, but in reality, the instruction aided the jury

in its function by clarifying that the prior statement could be considered as substantive

evidence and not merely as impeachment. Lastly, we do not believe the jury was unduly

confused by the term “substantive,” where the trial court distinguished between impeachment

and substantive evidence in its admonishment to the jury and in other jury instructions

preceding Instruction 27.



                                                10
             3.     Final Instruction 23: Jury’s Determination of Witness Credibility

       Third, Edmond argues he received ineffective assistance because his trial counsel

failed to object to Final Jury Instruction 23, which pertained to the jury’s ability to determine

witness credibility. Instruction 23 provided in pertinent part:

       You should attempt to fit the evidence to the presumption that the defendant is
       innocent and the theory that every witness is telling the truth. You should not
       disregard the testimony of any witness without a reason and without careful
       consideration. However, if you find that the testimony of a witness is so
       unreasonable as to be unworthy of belief, or if you find so much conflict
       between the testimony of the witnesses that you cannot believe all of them,
       then you must determine which of the witnesses you will believe and which of
       them you will disbelieve.

Appellant’s App. at 168 (emphasis added). Edmonds contends this instruction impermissibly

created a false dichotomy whereby the jury “must” believe one witness and disbelieve the

other when two witnesses offer conflicting testimony. We disagree.

       Edmond relies on Gantt v. State, 825 N.E.2d 874 (Ind. Ct. App. 2005). In Gantt,

conflicting testimony was given at trial, and during the jury’s deliberations, the jury sent a

question to the trial court asking whether the jury was required to believe one witness or the

other. The trial court gave a lengthy explanation, which essentially informed the jury they

must choose to believe one witness over another. This court held the trial court’s explanation

was an incorrect statement of law that invaded the province of the jury to determine witness

credibility and accept or reject evidence freely. Id. at 878. The court said:

       When two witnesses give contradictory accounts, it is not true that the jury
       must believe one or the other. The jury may choose to believe neither witness,
       believe aspects of the testimony of each, or believe the testimony but also
       believe in a different interpretation of the facts than that espoused by the
       witnesses, among other possibilities.


                                               11
Id. (emphasis in original).

       Unlike the situation in Gantt, Instruction 23 does not require the jury to believe all of

one witness’s testimony at the expense of ignoring the conflicting testimony. The language

of Instruction 23 allows the jury to freely choose to believe neither witness or to believe

portions of multiple witnesses’ testimony.

       As the State points out, the language Edmond complains of is identical to language

contained in the current pattern jury instruction on judging witness credibility. See Indiana

Pattern Jury Instructions (Criminal) 13.11 (3d ed. 2014) (“If you find conflicting testimony,

you must determine which of the witnesses you will believe and which of them you will

disbelieve.”). Our supreme court has implicitly approved the pattern instruction, see Sweany

v. State, 607 N.E.2d 387, 389 (Ind. 1993), and we believe Instruction 23 accurately explained

the law. Contrary to Edmond’s assertions, the language of Instruction 23 does not invade the

province of the jury to make credibility determinations. Edmond’s trial counsel was not

deficient for declining to object to Instruction 23.

                                     B. Appellate Counsel

       Edmond also argues his appellate counsel rendered ineffective assistance in two ways:

(1) appellate counsel failed to raise the arguments of ineffective assistance of trial counsel

that Edmond now raises in his petition for post-conviction relief; and (2) appellate counsel

failed to argue the admission of an unavailable witness’s deposition at trial violated the

Confrontation Clause.




                                              12
                   1.       Failure to Argue Ineffective Assistance on Direct Appeal

        First, Edmond asserts his appellate counsel was ineffective for failing to raise the

issue of ineffective assistance of trial counsel on direct appeal. Specifically, Edmond

believes his appellate counsel was deficient for failing to make the same arguments he now

makes in his successive petition for post-conviction relief. We have already discussed each

of Edmond’s claims of ineffective assistance of trial counsel and concluded he is not entitled

to relief on any of those bases. We have no reason to believe the court would have ruled

differently had Edmond’s appellate counsel presented these arguments of ineffective

assistance on direct appeal. Therefore, no prejudice can be shown.

                                      2.       Admission of Deposition

        Last, Edmond alleges his appellate counsel was deficient for failing to argue the trial

court erred by admitting a deposition in lieu of live testimony at trial in violation of

Edmond’s right to confront witnesses against him. The deposition Edmond complains of was

that of Terrence Williams, who was deceased at the time of trial.

        At the time of Edmond’s trial, deposition testimony was admissible in lieu of in-court

testimony where (1) the witness was unavailable and (2) the statement to be used bore

sufficient “indicia of reliability.” Freeman v. State, 541 N.E.2d 533, 537 (Ind. 1989) (citing

Ohio v. Roberts, 448 U.S. 56, 65 (1980)).2 First, there is no question Williams was an

unavailable witness at the time of trial.             See Ind. Evidence Rule 804(a)(4) (2000)


        2
            The Confrontation Clause jurisprudence has changed since Edmond’s trial, and the “indicia of
reliability” test from Ohio v. Roberts has been abrogated. See generally Crawford v. Washington, 541 U.S. 36
(2004).


                                                    13
(“‘Unavailability as a witness’ includes situations in which the declarant . . . is unable to be

present or to testify at the hearing because of death . . . .”). As to whether the deposition had

sufficient “indicia of reliability,” that requirement was also met. The requirement was

usually established where the defendant had an opportunity to cross-examine the witness.

Freeman, 541 N.E.2d at 537. Testimony taken by defense counsel in which he questions a

declarant completely and comprehensively would comport with the principal purposes of

cross-examination and satisfy the reliability requirement. Ingram v. State, 547 N.E.2d 823,

826-27 (Ind. 1989). Here, Edmond’s counsel was present at Williams’s deposition and cross-

examined Williams, satisfying the reliability requirement under Ohio v. Roberts. Therefore,

the admission of the Williams deposition at trial did not violate Edmond’s right to

confrontation, and his appellate counsel was not deficient for declining to raise the issue on

appeal.3

                                                Conclusion

        Concluding the post-conviction court’s denial of Edmond’s petition for post-

conviction relief was proper, we affirm.

        Affirmed.

BARNES, J., and BROWN, J., concur.




        3
            We also note Edmond’s brief spends several pages discussing the Confrontation Clause as it was
applied at the time of his trial, but Edmond’s brief gives no indication as to what facts were presented by the
deposition testimony or how the admission of the deposition would not be considered harmless error. Simply
stated, in addition to his failure to show appellate counsel performed deficiently, Edmond has also failed to
make any showing that he was prejudiced by appellate counsel’s decision not to appeal admission of the
Williams deposition.

                                                     14
