      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                      Mar 19 2015, 9:34 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Philip R. Skodinski                                      Gregory F. Zoeller
      South Bend, Indiana                                      Attorney General of Indiana
                                                               George P. Sherman
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Javon Crockett-Berry,                                    March 19, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               71A03-1407-PC-242
              v.                                               Appeal from the St. Joseph Superior
                                                               Court
                                                               The Honorable Jane Woodward
      State of Indiana,                                        Miller, Judge
      Appellee-Plaintiff                                       Cause Nos. 71D01-0611-PC-36,
                                                               71D01-0401-MR-1




      Bradford, Judge.



                                            Case Summary
[1]   In July of 2001, Appellant-Defendant Javon Crockett-Berry (“Crockett”) took

      part in an attempted burglary of a drug dealer’s residence. Crockett and his co-




      Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015     Page 1 of 23
conspirators mistakenly targeted the wrong house, the burglary went awry, and

Mary Lou Wolfe was killed. Crockett was implicated in the murder by several

witnesses, and police found Crockett’s DNA at the crime scene. On September

26, 2005, a jury found Crockett guilty of felony murder and burglary. The trial

court sentenced Crockett to an aggregate term of sixty years of imprisonment.

Crockett appealed but subsequently requested that the matter be remanded to

the trial court pursuant to the Davis-Hatton1 procedure, which was granted by

this court. Crockett filed his first petition for post-conviction relief (“PCR”) in

2006. After two subsequent amendments to his petition, the PCR court held

evidentiary hearings and denied Crockett relief. On appeal, Crockett claims

that the trial court erred in admitting and excluding certain evidence, that

Appellee-Plaintiff the State of Indiana (“the State”) was guilty of prosecutorial

misconduct and Brady violations2, and that his trial counsel was ineffective. We

affirm.



                        Facts and Procedural History


         1
            The Davis-Hatton procedure involves a termination or suspension of a direct appeal already
initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be
pursued in the trial court. State v. Lopez, 676 N.E.2d 1063, 1069 (Ind. Ct. App. 1997) (citing Hatton v. State,
626 N.E.2d 442 (Ind. 1993), trans. denied; Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977)). See also Ind.
Appellate Rule 37(A) (“At any time after the Court on Appeal obtains jurisdiction, any party may file a
motion requesting that the appeal be dismissed without prejudice or temporarily stayed and the case
remanded to the trial court … for further proceedings. The motion must be verified and demonstrate that
remand will promote judicial economy or is otherwise necessary for the administration of justice.”)
         2
           In Brady v. Maryland, the United States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment.” 373 U.S. 83, 87 (1963).




Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015                Page 2 of 23
[2]   Sometime in early July of 2001, Frank Moffitt was wanted for drug and gun

      charges, and, in a stolen car, Moffitt drove to South Bend in hopes of

      committing a robbery. While in South Bend, Moffitt was staying with Teresa

      Avance, who was the mother of his child. After Moffitt explained his situation

      to Avance, he asked her if she knew anyone who would be interested in helping

      him conduct a robbery. Avance then introduced Moffitt to her cousin,

      Crockett. Moffitt and Crockett decided to rob a drug dealer, DeShawn Works,

      who also lived in South Bend. Moffitt and Crockett enlisted the help of Tyson

      Crawford who showed Moffitt where Works’s house was located. Sometime in

      the early morning hours of July 8, 2001, Moffitt, Crockett, and Ricky Phillips

      approached what they believed to be Works’s home from the back alley.

      However, the house which the group believed to belong to Works actually

      belonged to Walter and Mary Lou Wolfe, who lived next door to Works.

      Phillips stayed in the car while Moffitt and Crockett, each of whom was

      carrying a gun, approached the back door of the Wolfes’ house. Crockett

      entered the house through the back door while Moffitt waited outside.


[3]   At approximately 1:00 a.m., Walter awoke to a sound coming from the stairs.

      Moments later, Walter saw a silhouette through the bedroom doorway. Walter

      yelled at the figure, “Get out of my house.” Tr. p. 337. The figure responded by

      firing two shots into the room. Walter waited a moment and then went across

      the hall and called 911. After calling for help, he returned to the bedroom and

      realized that Mary Lou had been shot. Walter then called 911 a second time

      and requested an ambulance. Officers arrived soon thereafter and found a lit




      Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 3 of 23
      cigarette on the ground near the back door which they collected as evidence.

      Mary Lou died as a result of a single bullet wound to the upper back/shoulder

      area which severed her spinal cord.


[4]   After the shooting, Crockett exited the house and returned to the car with

      Moffitt. While driving away, Moffitt asked Crockett what happened in the

      house. Crockett told Moffitt that someone jumped up and he shot at them.

      Crockett returned to Avance’s home and told her “he did something wrong.”

      Tr. p. 626. Sometime thereafter, Crockett told Avance “he [thought] he killed

      the wrong person.” Tr. p. 628.


[5]   In August of 2001, St. Joseph County Police received a Crime Stoppers tip

      which led then-Officer Keith Hadary3 to speak with Crockett. When asked

      about Wolfe’s murder, Crockett told Captain Hadary, “I didn’t kill that white

      b****.” Tr. p. 771. Prior to Crockett’s statement, officers had not given

      Crockett any specifics about Wolfe including her race. The case went unsolved

      until cold case Investigator Timothy Decker interviewed Moffitt in 2004.

      Moffitt agreed to discuss the case on the condition that he be given immunity.

      The State agreed and in a January 14, 2004 letter, the State offered Moffitt

      complete immunity from “any drug related matters, murder in any degree or

      false informing charges, which may be part of this homicide investigation.”




              3
                Prior to trial, Hadary was promoted to Sergeant and later promoted to Captain before the PCR
      hearing. Unless quoting directly from the trial or PCR court records, we will hereafter refer to him as
      “Captain Hadary.”




      Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015            Page 4 of 23
      State’s Ex. 43. On January 20, 2004, the State charged Crockett with murder,

      Class B felony burglary, and felony murder. When Crockett was interviewed

      again in 2004, he denied having been at Wolfe’s house and stated that he had

      been shot in the face on June 30, 2001, which caused him to be “laid up for two

      months.” Tr. p. 977.


[6]   At trial, Moffitt, Avance, and Phillips testified and implicated Crockett in the

      murder. The State introduced evidence that Crockett’s DNA was present on

      the cigarette found near the backdoor of the Wolfes’ house the night of the

      murder. On September 26, 2005, a jury found Crockett guilty of felony murder

      and burglary. On October 24, 2005, Crockett was sentenced to an aggregate

      term of sixty years imprisonment. Crockett appealed but subsequently

      requested that the matter be remanded to the trial court pursuant to the Davis-

      Hatton procedure, which was granted by this court on July 19, 2006. On

      November 16, 2006, Crockett filed a petition for PCR, which was later

      amended by subsequent petitions on November 13, 2013, and March 18, 2014.

      The PCR court held evidentiary hearings in April of 2014 and issued an order

      denying relief on June 23, 2014. Additional facts will be provided as necessary.



                                Discussion and Decision
                                     I. Direct Appeal Issues
            A. Trial Court’s Admission and Exclusion of Evidence
[7]           The admission or exclusion of evidence is a determination entrusted to
              the discretion of the trial court. Kelley v. Watson, 677 N.E.2d 1053,




      Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 5 of 23
              1059 (Ind. App. 1997). We will reverse a trial court’s decision only for
              an abuse of discretion, that is, only when the trial court’s action is
              clearly erroneous and against the logic and effect of the facts and
              circumstances before the court. Id.
      Adkins v. State, 703 N.E.2d 182, 186 (Ind. Ct. App. 1998).


[8]   “Evidence is relevant if: (a) it has any tendency to make a fact more or less

      probable than it would be without the evidence; and (b) the fact is of

      consequence in determining the action.” Ind. Evidence Rule 401. “The court

      may exclude relevant evidence if its probative value is substantially outweighed

      by a danger of one or more of the following: unfair prejudice, confusing the

      issues, misleading the jury, undue delay, or needlessly presenting cumulative

      evidence.” Ind. Evidence Rule 403. “The trial court enjoys broad discretion in

      weighing the probative value of the evidence against the potential for

      prejudice.” Burks v. State, 838 N.E.2d 510, 519 (Ind. Ct. App. 2005)


                                             1. Witness Tattoos

[9]   During the cross-examination of Moffitt, defense counsel attempted to elicit

      testimony that Moffitt had a tattoo indicating gang affiliation. The State

      objected on relevancy grounds. Crockett argued that both Moffitt and Avance

      have identical tattoos indicating affiliation with the same gang which supported

      Crockett’s theory that the two had motive to formulate a false story in order to

      frame Crockett for the murder. The trial court found that the potential

      prejudicial effect outweighed the probative value of the evidence and

      consequently sustained the objection. Crockett now argues that the trial court

      abused its discretion in declining to permit his line of questioning on this issue.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 6 of 23
[10]   As the trial court recognized, the evidence of a shared gang affiliation is only

       marginally relevant because it was cumulative. It was undisputed that Moffitt

       and Avance were closely associated as evidenced by the fact that they have a

       child together, that Moffitt drove a stolen car to Avance’s home in South Bend,

       told her he was wanted for drug and gun charges, and asked her if she knew

       anyone who would be interested in helping him conduct a robbery. The

       subsequent allegation that the two were a part of the same gang provides only

       negligible additional evidence of their relationship. Furthermore, it is

       inherently prejudicial to introduce evidence of gang affiliation as it creates a

       presumption of bad character. We think there is ample evidence to conclude

       that the probative value of the tattoos is substantially outweighed by the danger

       of unfair prejudice and needless presentation of cumulative evidence. The trial

       court enjoys broad discretion in making Rule 403 determinations, id. at 519,

       and we cannot say that the trial court abused that discretion here.


                                             2. Photo of Crockett

[11]   Crockett argues that the trial court erred in admitting State’s Exhibit 59, a photo

       of Crockett taken from the video of his interview with Captain Hadary. The

       State sought to introduce this photo as a response to Crockett’s claim that he

       had been shot in the face just prior to Wolfe’s murder, was “laid up” as a result

       of the injury, tr. p. 977, and so could not have taken part in the crime. The

       State argues that the photo was relevant to show that Crockett had no signs of a

       facial wound at the time of the interview, which was conducted approximately

       a month after the crime. Crockett argued that the photo’s relevance was




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 7 of 23
       minimal because it is blurry and that it is prejudicial because Crockett appears

       unkempt and wearing jail garb. When considering whether to admit the

       photograph, the trial court viewed the photo and found that it “shows the

       absence of any facial wounds, and I think that actually is sufficiently clear.” Tr.

       p. 761. The trial court also found that Crockett’s appearance in the photo was

       not unlike his appearance in another photo already admitted and that his

       clothing was not “identifiable in anyway as prison garb.” Tr. p. 764.

       Therefore, the probative value was significant as it disproved Crockett’s claim

       of injury and was, at most, minimally prejudicial. Once again, the trial court

       has broad discretion in making Rule 403 determinations and we think the trial

       court was well within its discretion on this issue.


                                              3. Defense Witness

[12]           “Trial courts have the discretion to exclude a belatedly disclosed
               witness when there is evidence of bad faith on the part of counsel or a
               showing of substantial prejudice to the State.” Williams v. State, 714
               N.E.2d 644, 651 (Ind. 1999). Several specific factors have been
               deemed helpful in determining whether to exclude witness testimony:
               (1) the point in time when the parties first knew of the witness; (2) the
               importance of the witness’s testimony; (3) the prejudice resulting to the
               opposing party; (4) the appropriateness of instead granting a
               continuance or some other remedy; and (5) whether the opposing
               party would be unduly surprised and prejudiced by the inclusion of the
               witness’s testimony. Id. at 651 n. 5; Cook v. State, 675 N.E.2d 687, 691
               n. 3 (Ind. 1996).
       Rohr v. State, 866 N.E.2d 242, 245 (Ind. 2007).


[13]   Crockett’s trial began on Monday September 19, 2005. On September 16, 2005,

       the Friday prior to trial, Crockett advised the State of his intent to call twelve




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 8 of 23
       witnesses, one of which was Ikelee Lottie, one of Moffitt’s fellow inmates. On

       the first day of trial, the State moved to strike a number of the witnesses.

       Defense counsel argued that he was only made aware of the witnesses within

       the previous week and that two of the witnesses, Michael Townsend and

       Dwight Neal, were inmates who could discredit Moffitt’s testimony by

       testifying that Moffitt was attempting to recruit other inmates to “jump on the

       case, that is, to become witnesses to help strengthen his own testimony in this

       case.” Tr. p. 9. Defense counsel stated that the remaining witnesses were

       similar and would be called only to bolster Townsend or Neal’s testimony if

       necessary. To avoid the exclusion of any of the witnesses, the trial court

       ordered defense counsel to make the witnesses available for the State to depose

       on the following afternoon. The State was able to interview nearly all of the

       witnesses. However, the State was unable to depose Lottie because the attorney

       sent by Crockett to oversee the deposition refused to participate in the interview

       of Lottie due to a conflict of interest. On the fourth day of trial, Crockett

       argued that Lottie should be allowed to testify despite not having been deposed.

       After being questioned by the trial court, Crockett indicated that he had been

       aware of Lottie’s potential as a witness for over a year. The trial court applied

       the five Rohr factors and decided to exclude the witness. Rohr, 866 N.E.2d at

       245.


[14]   The first of the Rohr factors, and most relevant in this case, is the fact that

       Crockett had known of Lottie’s potential as a witness for a year prior to trial

       and waited until the eve of trial to notify the State. Both parties argue that the




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 9 of 23
       second factor, importance of the witness’s testimony, weighs in their favor.

       Initially, Crockett advised the State, via his witness list, that Lottie would

       provide testimony similar to that of Townsend and Neal, thus making it

       cumulative and less important. However, midway through the trial, Crockett

       indicated that Lottie would now testify that Moffitt had revealed to Lottie his

       (Moffitt’s) intent to perjure himself at trial. Although such testimony would be

       extremely important to Crockett, the timing and nature of its disclosure is

       dubious. The third and fifth factors, prejudice and undue surprise to the

       opposing party, both work in the State’s favor. Crockett wished to call a

       witness who had not been made available for deposition, had been disclosed

       just days before trial, and was expected to testify that the State’s key witness

       was perjuring himself. Even assuming the State could have facilitated a

       deposition of Lottie prior to his testimony, there would have been little if any

       time left to prepare a response. Finally, it seems that another remedy, such as a

       continuance, would have been difficult given the circumstances. The trial was

       already on its fourth day and the trial court noted that at least one of the jurors

       would suffer significant financial hardship if the trial extended longer than one

       week. Based on these considerations, we think the trial court was within its

       discretion to exclude the witness.


                                     4. Captain Hadary’s Testimony

[15]   The following exchange occurred during the prosecutor’s direct examination of

       Captain Hadary in which Captain Hadary describes his initial interview with

       Crockett:




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 10 of 23
               Q: What did you tell [Crockett]?
               A: Just that we had received a tip that he was involved, and we wanted
               to talk to him about the Mary Lou Wolfe case.
               Q: Did you tell him any specifics about Mary Lou Wolfe?
               A: No.
               Q: Did you ask him about the case?
               A: Yes.
               Q: What was his response?
               A: That he didn’t have anything to do with that, didn’t know where,
               was nowhere on Cleveland [Street], didn’t know her, had nothing to
               do with it.
               Q: Did he make any specific reference to Miss Wolfe herself?
               A: Yes, he did.
               Q: What was that?
               A: He said he didn’t kill that white b****.
               [Defense counsel objects]

       Tr. p. 771. Captain Hadary went on to testify that the Homicide Unit’s

       standard procedure is to not release any information on a victim during a

       pending investigation. Captain Hadary also testified that, to his knowledge, the

       race of the victim was never disclosed in the newspaper or on TV, the

       implication being that Crockett knew that Wolfe was white because he was, in

       fact, her killer.


[16]   Crockett claims that the trial court improperly admitted Captain Hadary’s

       comment, arguing that the comment should have been excluded pursuant to

       Indiana Trial Rule 403 because it was both irrelevant and highly prejudicial.

       Crockett argues that because Captain Hadary could not say for certain that

       Wolfe’s picture was never made available to the public, the implication from




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 11 of 23
       the comment is irrelevant.4 However, the fact that Wolfe’s picture could

       potentially have been made public only works to cast doubt on the implication,

       it does not prove the implication false. In other words, it goes to the weight of

       the evidence, not its admissibility.

               [T]he fact that evidence only inconclusively connects the defendant to
               a crime affects the weight to be accorded that evidence by the fact-
               finder, rather than affecting its admissibility. Hunter v. State, 578
               N.E.2d 353, 357 (Ind. 1991), reh’g denied; see also Johnson v. Indiana, 272
               Ind. 547, 400 N.E.2d 132, 133 (1980) (“That the connection with the
               crime is inconclusive affects the weight of the evidence but does not
               render it inadmissible.”).

       Adkins v. State, 703 N.E.2d 182, 186 (Ind. Ct. App. 1998). It was for the jury to

       decide whether Crockett’s knowledge of the victim’s race implicated him in the

       crime or if he discovered her race through another means. As such, the

       comment is relevant.


[17]   Furthermore, the probative value of the testimony was not substantially

       outweighed by any potential danger of unfair prejudice. As the trial court noted

       in its decision to admit the testimony, “it may be highly prejudicial, but it’s also

       highly probative. And under Rule [] 403 … the preference is in favor of




               4
                  Crockett also briefly argues that his “white b****” statement was not referring to Wolfe but to
       another white female murder victim in an unrelated case. The PCR court addressed this argument in its
       order as follows: “The [trial court] did not review the videotape [of Crockett’s interview] during the
       trial…The videotape was introduced at the PCR hearing and has been reviewed. The Court’s review of the
       video reveals that the State was correct…despite Crockett-Berry’s PCR claim [that he was referring to another
       woman], his initial ‘white b[****]’ comment was made directly in connection with a discussion of the Wolfe
       break-in and shooting. After reviewing the tape, the Court finds that Sgt. Hadary neither ‘lied on’ the
       Petitioner nor misstated the interview.” Appellant’s Br. 56. Determining who Crockett’s comment was
       referring to is a factual issue that the PCR court addressed. This court does not reweigh evidence and will
       not do so here. Vitek v. State, 750 N.E.2d 346, 352 (Ind. 2001).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015            Page 12 of 23
       admission ….” Tr. p. 778. Although we are unconvinced that the statement is

       highly prejudicial, we nonetheless agree with the trail court’s reasoning and

       conclude that is was not an abuse of discretion to admit the testimony.


                                   B. Prosecutorial Misconduct
[18]           In reviewing a claim of prosecutorial misconduct properly raised in the
               trial court, we determine (1) whether misconduct occurred, and if so,
               (2) whether the misconduct, under all of the circumstances, placed the
               defendant in a position of grave peril to which he or she would not
               have been subjected otherwise. A prosecutor has the duty to present a
               persuasive final argument and thus placing a defendant in grave peril,
               by itself, is not misconduct. Whether a prosecutor’s argument
               constitutes misconduct is measured by reference to case law and the
               Rules of Professional Conduct. The gravity of peril is measured by the
               probable persuasive effect of the misconduct on the jury’s decision
               rather than the degree of impropriety of the conduct.
       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citations and quotations omitted).


                                     1. Captain Hadary’s Testimony

[19]   Crockett claims that the prosecutor committed prosecutorial misconduct by

       eliciting testimony from Captain Hadary that Crockett knew the victim’s race.

       Crockett argues that the prosecutor’s true goal in eliciting this testimony was to

       inject the issue of race into the proceedings in order to “gain a conviction on the

       basis of racial prejudice.” Appellant’s Br. p. 22. As we have already

       determined, the trial court did not abuse its discretion in admitting the

       statement. It would be illogical for us to hold that introducing evidence which

       is both highly prejudicial and highly probative amounts to misconduct. This

       would run counter to the balancing scheme established by Rule 403.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 13 of 23
[20]   Furthermore, the alleged prejudicial statement did not place Crockett in a

       position of grave peril and/or have had any persuasive effect on the jury.

       Crockett argues that the prosecutor elicited the statement “for purposes of

       obtaining an advantage by pointing out to the jury that this was a crime

       committed by a black man against a white woman.” Appellant’s Br. p. 20.

       However, the jurors had already been shown crime scene and autopsy photos

       which showed that the victim was white. As such, the statement introduced no

       new information about race which could have put Crockett in grave peril or had

       any significant persuasive effect on the jury.


                                            2. Suborning Perjury

[21]   A conviction must be set aside where there is a reasonable likelihood that

       testimony known to be false could have affected the judgment of the jury.

       Gordy v. State, 270 Ind. 379, 381, 385 N.E.2d 1145, 1146 (1979). “Further,

       Indiana has recognized a prosecutorial duty of voluntary disclosure of actual

       ‘deals’ made with state’s witnesses, such as promises, grants of immunity, and

       rewards offered in return for testimony.” Id.


[22]   The State’s letter offering Moffitt immunity reads as follows:

               We have no interest in, and will not contemplate the filing of any
               formal charges against you on any drug related matters, murder in any
               degree or false informing charges, which may be part of this homicide
               investigation.
               Assuming that you cooperate freely in the homicide investigation, are
               completely truthful about your knowledge of the events, are willing to
               testify at any subsequent trial, and, of course, are not the person who




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 14 of 23
               shot Mary Lou Wolfe, we will forego prosecuting your participation in
               this event.
       State’s Ex. 43 (emphasis in orginal). In his initial post-immunity statement,

       Moffitt implicated Crockett in the crime but neglected to mention Phillips or

       Avance. Investigator Decker testified that it is common for witnesses to

       initially omit relevant information and that it often takes multiple interviews to

       obtain all of the available information. In a subsequent interview, Moffitt

       revealed Phillips’s and Avance’s involvement in the crime. On cross-

       examination, Moffitt stated that he initially neglected to mention Phillips and

       Avance because he “didn’t want to implicate anyone else who had nothing to

       do with, you know, the murder.” Tr. p. 559.


[23]   Crockett claims that the State’s “unconditional promise not to prosecute Moffitt

       for perjury,” appellant’s br. p. 27, together with the State’s failure to revoke

       Moffitt’s immunity after realizing that he had omitted information in his initial

       statement “created an unconditional promise to Moffitt that he could lie to

       investigators and on the witness stand without fear of prosecution for false

       informing charges.” Appellant’s Br. p. 26. Crockett’s argument is without

       merit. As evidenced by the immunity letter, the State made no promise not to

       prosecute Moffitt for perjury and conditioned the immunity on the

       understanding that Moffitt be completely truthful. Furthermore, the State was

       under no obligation to revoke the immunity based on an omission which was

       ultimately remedied before trial. Finally, Crockett failed to provide any sound

       evidence that Moffitt’s testimony was false. The prosecutor cannot be guilty of

       suborning perjury when there is no evidence that the testimony was perjured.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 15 of 23
                                             II. PCR Issues
                                          A. Brady Violations
       In Brady v. Maryland, the United States Supreme Court held that “the

       suppression by the prosecution of evidence favorable to an accused upon

       request violates due process where the evidence is material either to guilt or to

       punishment, irrespective of the good faith or bad faith of the prosecution.” 373

       U.S. 83, 87 (1963). “To establish a Brady violation, a defendant must show ‘(1)

       that the prosecution suppressed evidence; (2) that the evidence was favorable to

       the defense; and (3) that the evidence was material to an issue at trial.’”

       Stephenson v. State, 864 N.E.2d 1022, 1056-57 (Ind. 2007) (quoting Conner v.

       State, 711 N.E.2d 1238, 1245-46 (Ind. 1999)). Under Brady, evidence is material

       if “‘the defendant ... establish[es] a reasonable probability that the result of the

       proceeding would be different if the State had disclosed [the] evidence.’” Id.

       (quoting Azania v. State, 730 N.E.2d 646, 655 (Ind. 2000)).


                                            1. Moffitt Testimony

[24]           Our supreme court has acknowledged the importance of fully
               disclosing to the jury any beneficial agreement between an accomplice
               and the State, even when those agreements are not reduced to writing.
               [McCorker v. State, 797 N.E.2d 257, 266 (Ind. 2003)].
                                                    ***
               [O]ur supreme court has also held that the duty to disclose arises when
               there is a confirmed promise of leniency in exchange for testimony and
               that preliminary discussions are not matters which are subject to
               mandatory disclosure. Sigler v. State, 700 N.E.2d 809, 812 (Ind. Ct.
               App. 1998), trans. denied (1999); [Wright v. State, 690 N.E.2d 1098,
               1113 (Ind. 1997)]. An express agreement requiring disclosure does not
               exist if a witness testifies favorably in the hope of leniency, and the




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 16 of 23
               State neither confirms nor denies leniency to the witness. Sigler, 700
               N.E.2d at 812; Wright, 690 N.E.2d at 1113.
       Seketa v. State, 817 N.E.2d 690, 693-694 (Ind. Ct. App. 2004).


[25]   Several months after Crockett’s conviction, the State filed a motion to modify

       Moffitt’s sentence. Crockett alleges that the prosecutor had an agreement to

       modify Moffitt’s sentence in exchange for his testimony and that the agreement

       was not disclosed to Crockett. Crockett argues that failure to disclose such an

       agreement amounts to prosecutorial misconduct and a Brady violation. At the

       PCR hearing, the deputy prosecuting attorney testified that there had been no

       such agreement to modify Moffitt’s sentence in exchange for his testimony.

       Despite evidence offered at the PCR hearing which suggested that Moffitt’s

       sentence modification was somewhat atypical, the PCR court determined that

       there was no agreement between the State and Moffitt pertaining to a sentence

       reduction. As such, Crockett’s arguments on appeal suggesting that an

       agreement did exist are nothing more than invitations to reweigh the evidence

       which we will not do. Vitek, 750 N.E.2d at 352.


[26]   We note that Moffitt may have expected a sentence reduction following his

       testimony. However, without an explicit agreement, the unilateral expectation

       of sentence relief does not warrant reversal on Brady grounds. Lambert v. State,

       743 N.E.2d 719, 749 (Ind. 2001). Because Crockett failed to establish the

       existence of an agreement, there are no grounds to find prosecutorial

       misconduct or a Brady violation as there is no favorable evidence that could

       have been withheld from Crockett.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 17 of 23
                                           2. Van Winkel Murder

[27]   Crockett claims that the State committed a Brady violation by failing to turn

       over information which tied Moffitt to an unrelated South Bend burglary which

       resulted in the murder of Lori Van Winkel. On February 25, 2002, during the

       investigation into the Van Winkel murder, Captain Hadary interviewed Kinte

       Johnson who indicated that Moffitt and another individual had targeted Van

       Winkel because they believed she was associated with a drug dealer. The

       burglary of Van Winkel, who seemingly was not involved in drug dealing, went

       awry and resulted in her being shot. According to Johnson, Moffitt later made

       reference to “two wrong addresses in one month,” and also told him details

       about Wolfe’s murder. PCR Petitioner’s Ex. 16. Crockett claims the State was

       obligated to send him the police reports and video tapes of the interview and

       that this information was beneficial because it tied Moffitt to a similar crime

       and would further discredit his testimony.


[28]   Crockett’s argument fails for several reasons. Firstly, the State provided

       Crockett with a narrative of the interview with Johnson on September 9, 2004,

       more than a year before trial. This report focuses on the information Johnson

       gave regarding Wolfe’s murder and references that Moffitt was involved in

       another burglary at an incorrect address that resulted in a murder. This report

       gave Crockett notice that Johnson had information on Moffitt relating to

       Crockett’s case. “[T]he State will not be found to have suppressed material

       information if that information was available to a defendant through the

       exercise of reasonable diligence.” Conner v. State, 711 N.E.2d 1238, 1246 (Ind.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 18 of 23
       1999) (citing United States v. Morris, 80 F.3d 1151, 1170 (7th Cir. 1996)). The

       report also noted that there was a videotape of the interview with Johnson

       which Crockett could have requested from the State.


[29]   Crockett’s argument also fails because he has not shown that Johnson’s

       interview was favorable to his defense. Although the interview may have

       generally discredited Moffitt’s testimony by tying him to a similar crime,

       Johnson also stated that Moffitt told him it was Crockett who shot and killed

       Wolfe, thus corroborating Moffitt’s testimony. Finally, we note that one of

       Crockett’s witnesses, Steven Spears, was convicted of killing Van Winkel prior

       to his testimony in this case. Therefore, had there been any significantly helpful

       information in relation to the Van Winkel murder, it could have been gathered

       from Spears. Accordingly, we find that Crockett has failed to establish that the

       State suppressed evidence or that the allegedly suppressed evidence was

       favorable to his defense.


                        II. Ineffective Assistance of Trial Counsel
[30]           This Court reviews claims of ineffective assistance of counsel under the
               two components set forth in Strickland v. Washington, 466 U.S. 668, 104
               S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show
               that counsel’s performance was deficient. This requires a showing that
               counsel’s representation fell below an objective standard of
               reasonableness, and that the errors were so serious that they resulted in
               a denial of the right to counsel guaranteed the defendant by the Sixth
               Amendment. Second, the defendant must show that the deficient
               performance prejudiced the defendant. To establish prejudice, a
               defendant must show that there is a reasonable probability that, but for
               counsel’s unprofessional errors, the result of the proceeding would




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 19 of 23
               have been different. A reasonable probability is a probability sufficient
               to undermine confidence in the outcome.
       Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002) (citations omitted).


[31]   Crockett claims that his trial counsel, Charles Lahey, was ineffective for failing

       to file a motion in limine to prevent the State from eliciting testimony from

       Captain Hadary regarding Crockett’s statement, “I didn’t kill that white b****.”

       Tr. p. 771. Crockett also claims that Lahey was ineffective for failing to find

       news coverage which revealed Wolfe’s race in order to rebut the implication

       made by Captain Hadary’s testimony. The following exchange occurred during

       Lahey’s cross-examination of Captain Hadary:

               Q: Nice job of planting the race issue in this case, Sergeant Hadary?
               State: I would object to that, Your Honor. All blood is red.
               Court: That’s not a question, and I’m going to – Please, Mr. Lahey,
               limit yourself to questions, not statements.
               Q: You watched all three channels the day after this murder?
               A: No, I can’t say that I did.
               Q: You watched all three channels the next day after that?
               A: No.
               Q: And yet you confidently say that it was not on TV, the race of the
               woman?
               A: Yes.
               Q: And yet you got no idea. You didn’t watch all of the channels.
               You didn’t watch all of the news coverage, and yet you say, it wasn’t
               covered by TV. It’s pretty irresponsible to make that kind of
               statement; isn’t it?
               A: In all of the homicides that I’ve been involved with back there, I
               can’t ever say that -- [] that I have ever saw her picture ever.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 20 of 23
        Q: Well, you may not have seen her picture. Does that mean it’s never
        been shown?
        A: It’s possible.
        Q: You’ve never seen a news commentator mention on TV that she
        was a white woman. Does that mean it never happened?
        A: It’s possible.
                                               ***
        Q: Did you read the obituary column?
        A: I can’t say that I did.
        Q: It’s pretty customary for a person’s picture to be in an obituary
        column; is it not?
        A: Sometimes, yes.
        Q: And you’re telling me that you never released a photograph of Mrs.
        Wolfe, so there’s no way that anybody would know that she was
        white, right?
        A: Right.
        Q: And yet, if her photograph appeared in the obituary column, there
        would be a picture of her in all of her whiteness sitting there in the
        back of the South Bend Tribune.
        A: If it was in there, yes.
        Q: Okay. And you didn’t bother to check. You just made this
        statement that nobody knew that she was a white woman on your
        own, right? You said her picture never appeared in the South Bend
        Tribune, right?
        A: Right. I can’t say that I remember. That’s four years ago, and a lot
        of cases that – I could say, I never recalled seeing her picture, and
        every newspaper article on this whole case would be in that book, in
        the homicide book.
        Q: Not every. Do you have transcripts of every television mention of
        it?
        A: No, not transcripts…




Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 21 of 23
       Tr. pp. 786-789. Lahey asked several more questions designed to cast doubt on

       the implication that Crockett would only have known Wolfe’s race if he was in

       fact her killer.


[32]   During the PCR hearing, Lahey testified that he believed he had made an

       informal agreement with the prosecutor that the statement would not be

       introduced at trial. Lahey claimed that the agreement was violated and that

       had he known the State was planning on introducing the statement, he would

       have filed a motion in limine. If such a motion was denied, he would have

       looked for news coverage which revealed Wolfe’s race.


[33]   Although Lahey admitted that he would have done things differently in

       retrospect, we do not think his actions fell below an objective standard of

       reasonableness for many reasons. The trial court allowed the testimony despite

       Lahey’s vehement Rule 403 objection. Therefore, it is unlikely that a motion in

       limine would have been successful. Moreover, Crockett produced no definitive

       evidence in his PCR petition that there was any news coverage prior to

       Crockett’s statement which showed Wolfe’s race, i.e. Lahey could not be

       ineffective for failing to find evidence which did not exist. Finally, we think

       that Lahey’s thorough cross-examination of Captain Hadary provided a

       satisfactory rebuttal of the implication created by Hadary’s testimony. By the

       time Lahey’s cross-examination was complete, it was clear that Captain Hadary

       could not rule out the possibility that Crockett discovered the victim’s race via

       news coverage. “Isolated poor strategy, bad tactics, a mistake, carelessness or

       inexperience do not necessarily amount to ineffective counsel unless, taken as a




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 22 of 23
       whole, the defense was inadequate.” Davis v. State, 675 N.E.2d 1097, 1100

       (Ind. 1996) (quoting Terry v. State, 465 N.E.2d 1085, 1089 (Ind. 1984)). Taken

       as a whole, Lahey’s representation was more than sufficient and his failure to

       file a motion in limine was, at worst, an isolated mistake.


[34]   Furthermore, as we outlined in Section I-B-1, we do not think that Captain

       Hadary’s testimony regarding Crockett’s statement had any persuasive effect on

       the jury. Similarly, we do not think that there is a reasonable probability that,

       but for Lahey’s alleged errors, the result of the proceeding would have been

       different.


[35]   The judgments of the trial and PCR courts are affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-PC-242 |March 19, 2015   Page 23 of 23
