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                                         Nov 24 2014, 9:34 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

SCOTT KING                                         GREGORY F. ZOELLER
Scott King Group                                   Attorney General of Indiana
Merrillville, Indiana
                                                   MONIKA PREKOPA TALBOT
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

ROBERT C. TILLER,                                  )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )       No. 45A03-1405-PC-163
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                          APPEAL FROM THE LAKE SUPERIOR COURT
                               The Honorable Salvador Vasquez, Judge
                           The Honorable Kathleen A. Sullivan, Magistrate
                        Cause Nos. 45G01-1110-PC-10 and 45G01-1110-PC-11



                                       November 24, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Robert C. Tiller appeals the post-conviction court’s denial of his petition for post-

conviction relief. Tiller raises a single issue for our review, namely, whether he was

denied the effective assistance of trial counsel. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       The facts underlying Tiller’s convictions were stated by this court in his first direct

appeal:

               The facts most favorable to the convictions follow. On December
       24, 2005, fifteen-year-old T.T. was staying at Willow Glen Academy, a
       home for troubled teens. While talking on the phone, T.T. asked her direct
       care counselor, Zatia Sain, to take the phone, upon which Sain spoke with
       Tiller, T.T.’s brother. After several additional phone calls and a face-to-
       face meeting with Tiller, Sain agreed to help T.T. leave the secure facility
       given Tiller’s threat to enter the building and kill everyone inside. The
       initial plan to have T.T. get out of the building was interrupted when other
       adults noticed that T.T. had thrown her possessions out the window.
       Notwithstanding the foiled plan, T.T.’s boyfriend, Louis James, armed with
       a silver revolver, entered through the secured front door that had been left
       ajar for T.T.’s exit and yelled for T.T. Shortly after 7:00 p.m., Brandon
       Peterman, a counselor at Willow Glen, was confronted by James, who told
       Peterman not to move or “it would be over for [him.]” T.T. left the
       building with James.

               About 10:00 p.m., Tiller, James, T.T., and another individual, Korey
       Looney, arrived at the home of Angela Arriaga, a friend of Tiller’s.
       Arriaga and her four children were not present when the foursome arrived,
       but Arriaga’s fiancé, Richard Cannon, was at the home watching television.
       Tiller asked Cannon if T.T. could stay at the house for a few days, and
       Cannon told him “no[.]” Tiller continued to ask Cannon if T.T. could stay,
       and then eventually asked Cannon if that was his final answer, and Cannon
       said “yes, that's my final answer[.]” Tiller then directed James and Looney
       to “tie this mother-fucker up[.]” The two men beat Cannon about the face
       as he resisted. Tiller was also involved in this altercation with Cannon.
       Finally, Tiller handed James a .38 caliber silver revolver, and James held
       the gun to Cannon’s head. With Cannon subdued, James and Looney tied
       Cannon up with shoelaces from his own shoes, wrapped him in a blanket,
       and put him in the trunk of the car Tiller brought to the house. As they
                                              2
       drove, Cannon managed to free his feet and remove the gag from his
       mouth. When the car stopped, James and Looney pulled Cannon from the
       trunk, James shot him one time in the face and left him on the ground.
       After the men left, Cannon managed to get to a nearby house, where help
       was summoned. Cannon did not see Tiller at the scene of the shooting.

               Shortly after 11:00 p.m., Arriaga arrived home with her four children
       and found T.T. attempting to clean up. Arriaga soon left to make phone
       calls in an attempt to find Cannon. While out, she encountered Tiller in a
       car with James and Looney. Tiller told Arriaga to go home, and he arrived
       shortly thereafter. He asked Arriaga if T.T. could stay at her home, and
       Arriaga initially said no. After further urging from Tiller, Arriaga
       reluctantly agreed. Police eventually recovered a .38 caliber revolver at
       1357 Johnson Street, a place where Tiller, Johnson, and Looney had stayed.

              At trial, Tiller claimed that he did not participate in helping T.T.
       escape from Willow Glen. Tiller also testified that he was not involved in a
       fight with Cannon at Arriaga’s residence. Tiller further testified that he
       was not aware that James and Looney had placed Cannon in the trunk of
       the car and that when he found out about it, he said, “I don’t have nothing
       to do with this” and got out of the car.

              On December 30, 2005, the State charged Tiller with Count I,
       attempted murder as a class A felony; Count II, confinement as a class B
       felony; Count III, aggravated battery as a class B felony; and Count IV,
       battery as a class C felony. On January 6, 2006, under a separate cause, the
       State charged Tiller with escape as a class B felony (Count V). On October
       4, 2006, the trial court joined the two causes pursuant to the State’s motion.
       A five-day jury trial commenced on November 5, 2007. At the conclusion
       of the evidence, the jury found Tiller guilty as charged. On January 23,
       2008, the trial court sentenced Tiller to an aggregate sentence of sixty-six
       years.

Tiller v. State, 896 N.E.2d 537, 539-41 (Ind. Ct. App. 2008) (citations omitted; some

alterations original).

       In his first direct appeal, we reversed Tiller’s conviction for attempted murder due

to an erroneous jury instruction and remanded for a new trial. On remand, the State

moved the court to enter judgment instead on Count III, aggravated battery, and the court



                                             3
entered its judgment and sentenced Tiller accordingly. Following a second direct appeal,

we affirmed Tiller’s convictions and sentence.

       On October 21, 2011, Tiller filed his petition for post-conviction relief. Among

other things, Tiller alleged that he had been denied the effective assistance of trial

counsel because his counsel, John Davis, had failed to hold a pretrial interview with

James, Tiller’s co-defendant. Tiller further alleged that, had Davis interviewed James,

Davis would have learned that James would have presented exculpatory testimony in

favor of Tiller.

       After several evidentiary hearings, on this issue the post-conviction court entered

the following findings of fact:

       8.      During the investigation of this case, co-defendant Louis James
       made a prior statement to Gary Police Department Detective Bond stating
       that [t]he petitioner[ “]gave me [James] the gun[] and told me to take the
       body [Cannon] somewhere and shoot him.” After his guilty plea and
       sentencing, Mr. James was listed as a witness for the State, and [he] was
       produced from the Department of Correction for both co-defendant James
       Looney’s trial[] and for the petitioner’s trial. Mr. James was in the Lake
       County Jail[] and available to testify throughout the petitioner’s trial, but
       neither the State nor the defense called him.

                                             ***

       17.     [Then-deputy prosecutor Lisa] Beck testified at the post-conviction
       relief hearing that[,] prior to the jury trial of Looney, the State . . . met with
       Mr. James on multiple occasions. During those meetings, Mr. James never
       told the State anything contradictory to his prior statements[;] however[,]
       he always maintained that he would not testify at the trial of [t]he
       petitioner. She said that she again met with Mr. James during the week of
       the petitioner’s trial, and Mr. James again reiterated to the State that he
       would not testify against the petitioner because he was afraid of him. She
       further testified that at no point in time did Mr. James indicate to . . . her
       that his prior statements concerning the petitioner’s involvement were
       coerced or untrue. Ms. Beck recounted an incident where the petitioner had
       yelled at Mr. James while both parties were being held in the Lake County
                                               4
      Jail during the week of the petitioner’s trial. Beck also stated that all
      parties were aware of the conversation she had with Mr. James while he
      was in the Lake County Jail during the petitioner’s trial.

Appellant’s App. at 86, 88 (some alterations original; citations omitted). The court then

entered the following relevant conclusions of law:

      14.    The petitioner raises two issues regarding the testimony of his co-
      defendant, Louis James. First, he alleges that counsel was ineffective for
      failing to depose and call Mr. James to testify at the petitioner’s trial. . . .
      The Court notes that [this] issue was [not] raised in the petition for post-
      conviction relief, but substantial testimony was received . . . and both
      parties addressed [it] in their proposed findings. Therefore, the court will
      likewise address [this issue].

      15.    The decision about whether to call a particular witness at trial is a
      matter within the trial counsel’s strategy. . . . Mr. Davis was familiar with
      the prior statements that Mr. James had made to police officers completely
      inculpating the petitioner. According to the testimony of Ms. Beck, Mr.
      James had consistently stated that he would not testify against the petitioner
      because he was afraid of him. Additionally, Ms. Beck stated that Mr. Davis
      was aware . . . on the third day of the petitioner’s trial, after she met with
      Mr. James in the jail, the petitioner went to the pod in the jail where Mr.
      James was being held[] and screamed at Mr. James’ cell. A correctional
      officer from the jail was available to testify to this.

      16.     Had Mr. Davis call[ed] Mr. James to testify, and had Mr. James, in
      fact, testified that the petitioner was not involved in any of the charged
      offenses, Mr. Davis was well aware that the State had substantial evidence
      with which to impeach Mr. James’ testimony. Mr. Davis strategically did
      not call Mr. James as a witness, testifying at the post-conviction relief
      hearing that several factors went into the decision as to whether to call Mr.
      James. Mr. Davis further stated it was risky[] and could have come back to
      “bite us.” The decision not to call Mr. James was a strategic one, and his
      testimony lacked sufficient credibility for the Court to find that the
      testimony would have altered the outcome of this trial.

      17.   The petitioner has failed to meet his burden of proving that he was
      denied the effective assistance of trial counsel.

Id. at 91. The court then denied Tiller’s petition for post-conviction relief. This appeal

ensued.
                                             5
                                DISCUSSION AND DECISION

        Tiller appeals the post-conviction court’s denial of his petition for post-conviction

relief. Our standard of review in such appeals is clear:

        [The petitioner] bore the burden of establishing the grounds for post-
        conviction relief by a preponderance of the evidence. See Ind. Post-
        Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
        2001). Post-conviction procedures do not afford a petitioner with a super-
        appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597.
        Rather, subsequent collateral challenges to convictions must be based on
        grounds enumerated in the post-conviction rules. Id. If an issue was
        known and available, but not raised on direct appeal, it is waived. Id. If it
        was raised on appeal, but decided adversely, it is res judicata. Id.

               In reviewing the judgment of a post-conviction court, appellate
        courts consider only the evidence and reasonable inferences supporting the
        post-conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind.
        2006). The post-conviction court is the sole judge of the evidence and the
        credibility of the witnesses. Id. at 468-69. Because he is now appealing
        from a negative judgment, to the extent his appeal turns on factual issues
        [the petitioner] must convince this court that the evidence as a whole leads
        unerringly and unmistakably to a decision opposite that reached by the
        post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb
        the decision only if the evidence is without conflict and leads only to a
        conclusion contrary to the result of the post-conviction court. Id.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.

        Tiller contends that he was denied the effective assistance of trial counsel in

violation of the Sixth Amendment to the United States Constitution. Specifically, he

argues that his trial counsel did not adequately investigate potential exculpatory evidence,

namely, James’ testimony.1 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

        1
          We agree with the post-conviction court that Tiller preserved this issue for our review when the
parties presented substantial evidence on it during the evidentiary hearings before the post-conviction
court, which enabled the court to fully hear and adjudicate the issue.
                                                    6
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.

       “[C]ounsel is strongly presumed to have rendered adequate assistance and made

all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.

Further:

       strategic choices made after thorough investigation of law and facts
       relevant to plausible options are virtually unchallengeable; and strategic
       choices made after less than complete investigation are reasonable precisely
       to the extent that reasonable professional judgments support the limitations
       on investigation. In other words, counsel has a duty to make reasonable
       investigations or to make a reasonable decision that makes particular
       investigations unnecessary. In any ineffectiveness case, a particular
       decision not to investigate must be directly assessed for reasonableness in
       all the circumstances, applying a heavy measure of deference to counsel’s
       judgments.

Id. at 690-91.

       Tiller did not receive ineffective assistance from his trial counsel. “[A]pplying a

heavy measure of deference” to Davis’ decision not to investigate James’ likely

testimony before trial, we cannot say that the post-conviction court erred when it

determined that Davis’ decision was reasonable under all the circumstances. Id. at 691.

The post-conviction court found that Davis “was familiar with the prior statements that

Mr. James had made to police officers completely inculpating the petitioner.”

Appellant’s App. at 91. The post-conviction court further found that Davis knew that,

during Tiller’s trial, Tiller had intimidated James in the Lake County jail. Id. In light of
                                             7
those undisputed facts, we agree with the post-conviction court’s conclusion that, “had

Mr. James, in fact, testified that [Tiller] was not involved in any of the charged offenses,

Mr. Davis was well aware that the State had substantial evidence with which to impeach

Mr. James’ testimony.” Id. Thus, Davis made a reasonable strategic decision to avoid

having the impeachment evidence placed in front of the jury.

       In support of his argument to the contrary on appeal, Tiller substantially relies on

United States ex rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003). But Hampton is

inapposite. In that case, at a late-night rhythm-and-blues concert at a Chicago venue:

       a group of up to forty individuals marched up the aisle toward the stage,
       chanting “Black Gangster Disciples” and “Third World Disciple Nation,”
       pounding their fists together, and making gang signals with their hands.
       Three Latino concertgoers—Hugo N., Martha N., and Denise M.—were
       seated in the fifth row of the theater. As they arose from their seats and
       attempted to leave, the group in the aisle attacked them, removing their
       clothes, taking their wallets and jewelry, beating them, and sexually
       assaulting the two women. Security guards eventually intervened and
       rescued the three victims of the assault. None of the perpetrators was
       detained at the scene.

Id. at 221-22 (footnote omitted). Hampton was later charged and convicted as one of the

perpetrators. His trial counsel made no attempt to obtain potentially exculpatory witness

testimony, even though, “[w]ith no physical evidence against Hampton, the prosecution’s

case against him depended entirely on witnesses who testified that they saw him

participate in the attacks. Those witnesses saw the assailant they identified as Hampton

only briefly and under difficult circumstances, rendering their identifications of Hampton

vulnerable to challenge.” Id. at 253.

       Those facts are a far cry from Tiller’s case. Here, among other things, the victim’s

deposition testimony identifying Tiller was before the jury.         And James’ putative
                                             8
testimony would not have clarified ambiguous observations; his testimony would have

been wholly inconsistent with his prior, unambiguous statements implicating Tiller, and

James would have been readily impeached.

       We also reject Tiller’s argument on appeal that the post-conviction court “engaged

in pure speculation when it found that Davis’s decision not to call James was a matter of

trial strategy” because Davis did not expressly testify to the post-conviction court that it

was his trial strategy. Appellant’s Br. at 12. But Tiller’s reading of the record is not

accurate. While Davis testified that he did not know “whether that was [his] strategy,” he

also testified that he remembered calling James as a witness to be “very risky” precisely

because it would allow the jury to hear “something that really nail[ed] my client.” Tr. at

47. Thus, the record supports the post-conviction court’s finding that Davis’ decision

was a strategic one.

       Neither can Tiller demonstrate that the result of his trial would have been different

had his counsel interviewed James before trial. Tiller’s argument on prejudice presumes

James’ testimony at trial would have been credible.           But the post-conviction court

expressly found that James “lacked . . . credibility” in light of his inconsistent statements.

Id. We are in no position to reweigh the evidence on appeal. We affirm the post-

conviction court’s denial of Tiller’s petition for post-conviction relief.

       Affirmed.

BAILEY, J., and PYLE, J., concur.




                                              9
