Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                        Sep 30 2014, 9:34 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

SCOTT KING                                         GREGORY F. ZOELLER
RUSSELL W. BROWN, JR.                              Attorney General of Indiana
Scott King Group
Merrillville, Indiana                              JAMES B. MARTIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

KUFANYO BROOKS,                                    )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )        No. 79A02-1403-PC-154
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                     APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                            The Honorable Thomas H. Busch, Judge
                                Cause No. 79D02-1111-PC-16



                                       September 30, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       On August 16, 2007, Appellant-Petitioner Kufanyo Brooks was charged with two

counts of Class A felony dealing in cocaine and one count of Class B felony possession of

cocaine. Brooks proceeded to a jury trial on April 1, 2008. After the completion of the

presentation of evidence, the jury reported to the trial court that they were unable to reach a

unanimous decision on the first of the two counts of Class A felony dealing in cocaine. The

jury, however, reached a unanimous guilty verdict on the remaining Class A felony charge

and the Class B felony possession charge. The trial court subsequently sentenced Brooks to

an aggregate term of thirty years. Brooks’s convictions and sentence were affirmed on direct

appeal.

       Brooks subsequently sought post-conviction relief, claiming that he had received

ineffective assistance of trial counsel. The post-conviction court denied Brooks’s request for

relief following an evidentiary hearing. On appeal, Brooks contends that the post-conviction

court erroneously determined that he did not receive ineffective assistance from his trial

counsel. Upon review, we affirm the judgment of the post-conviction court.

                       FACTS AND PROCEDURAL HISTORY

       Our opinion in Brooks’s prior direct appeal, which was handed down on February 20,

2009, instructs us as to the underlying facts and procedural history leading to this post-

conviction appeal:

       The facts favorable to the convictions are that twice on July 3, 2007, Brooks
       sold cocaine to a confidential informant (CI) while at his (Brooks’s) residence
       in Lafayette, Indiana. The first buy took place at about 12:33 a.m., when the
       CI gave Brooks $100 for what they agreed would be a gram of cocaine.
                                              2
       Nearby police officers monitored the transaction via an audio wire concealed
       on the CI. After the transaction was completed and the CI rendezvoused with
       police, it was determined that Brooks had delivered less than half a gram of
       cocaine, so another purchase was arranged. Following the same procedure as
       before, the CI traveled to Brooks’s house, this time receiving a gram of
       cocaine in exchange for $50. The location of the drug buys was within 1000
       feet of a family housing complex.
               The CI later picked Brooks’s photo from a photo array and Brooks was
       charged under Counts I and II with dealing in cocaine as class A felonies, and
       under Count III with possession of cocaine as a class B felony.

Brooks v. State, 79A02-0806-CR-560 *1 (Ind. Ct. App. February 20, 2009).

       During trial, the CI testified that he had known Brooks for seven or eight years prior to

the night of the controlled buys and that he referred to Brooks by the nickname of “Fuzz.”

Trial Tr. p. 119. The CI further testified that Brooks lived off of New York Street, which is

consistent with the location where the CI purchased the cocaine from Brooks. The CI’s trial

testimony was largely corroborated by the testimony of four law enforcement officers who

either observed or participated in the controlled buys. Brooks’s trial counsel attempted to

attack the CI’s credibility during cross-examination. Specifically, Brooks’s trial counsel

elicited testimony from the CI indicating that he had previously been convicted for false

informing and that the basis for this conviction was that he had lied to the authorities.

Brooks’s trial counsel did not call Rachelle Billups, whom Brooks claimed could provide

him with an alibi, as a defense witness during trial.

       After the completion of the presentation of evidence, the jury reported to the trial court

that they were unable to reach a unanimous decision on the first of the two counts of Class A

felony dealing in cocaine. The jury, however, reached a unanimous guilty verdict on the


                                               3
remaining Class A felony charge and the Class B felony possession charge.

       At the conclusion of the sentencing hearing, the court found as mitigating
       factors that (1) Brooks has family support, (2) the crime neither caused nor
       threatened serious harm to persons or property, (3) Brooks’s imprisonment
       would result in hardship to his dependents, and (4) he is remorseful. As
       aggravating circumstances, the court found that (1) Brooks has a history of
       criminal or delinquent behavior, (2) he violated the conditions of his parole,
       and (3) there were children present during at least one of the crimes. Upon its
       conclusion that the aggravators and mitigators balanced, the court sentenced
       Brooks to the advisory sentence of thirty years for the dealing conviction and
       ten years for the possession conviction, to be served concurrent with each other
       but consecutive to a sentence imposed in a case involving a separate
       conviction.

Brooks, 79A02-0806-CR-560 *1. Brooks’s convictions and sentence were subsequently

affirmed on direct appeal. Id. at *2-3.

       On November 14, 2011, Brooks filed a pro se petition for post-conviction relief

(“PCR”). On October 9, 2013, Brooks, by counsel, filed an amended PCR petition, which

alleged that Brooks had received ineffective assistance from his trial counsel. The post-

conviction court conducted an evidentiary hearing on Brooks’s amended PCR petition on

October 31, 2013. During this hearing, Brooks, by counsel, presented argument and witness

testimony in support of his ineffective assistance claim. On February 18, 2014, the post-

conviction court issued an order denying Brooks’s request for PCR.

                             DISCUSSION AND DECISION

       Post-conviction procedures do not afford the petitioner with a super-appeal. Williams

v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a narrow remedy for

subsequent collateral challenges to convictions, challenges which must be based on grounds


                                              4
enumerated in the post-conviction rules. Id. A petitioner who has been denied post-

conviction relief appeals from a negative judgment and as a result, faces a rigorous standard

of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715

N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.

       Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745

(Ind. 2002). Therefore, in order to prevail, a petitioner must establish his claims by a

preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745.

When appealing from the denial of a PCR petition, a petitioner must convince this court that

the evidence, taken as a whole, “leads unmistakably to a conclusion opposite that reached by

the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is

without conflict and leads to but one conclusion, and the post-conviction court has reached

the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v.

State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. The post-conviction court is

the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v.

State, 810 N.E.2d 674, 679 (Ind. 2004). We therefore accept the post-conviction court’s

findings of fact unless they are clearly erroneous but give no deference to its conclusions of

law. Id.

       Whether the Post-Conviction Court Erred in Determining that Brooks
             Did Not Receive Ineffective Assistance of Trial Counsel

       The right to effective counsel is rooted in the Sixth Amendment to the United States

Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The Sixth Amendment


                                              5
recognizes the right to the assistance of counsel because it envisions counsel’s playing a role

that is critical to the ability of the adversarial system to produce just results.’” Id. (quoting

Strickland v. Washington, 466 U.S. 668, 685 (1984)). “The benchmark for judging any claim

of ineffectiveness must be whether counsel’s conduct so undermined the proper function of

the adversarial process that the trial court cannot be relied on as having produced a just

result.” Strickland, 466 U.S. at 686.

       A successful claim for ineffective assistance of counsel must satisfy two components.

Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first prong, the petitioner must

establish that counsel’s performance was deficient by demonstrating that counsel’s

representation “fell below an objective standard of reasonableness, committing errors so

serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.”

Id. We recognize that even the finest, most experienced criminal defense attorneys may not

agree on the ideal strategy or most effective way to represent a client, and therefore, under

this prong, we will assume that counsel performed adequately and defer to counsel’s strategic

and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). Isolated mistakes,

poor strategy, inexperience, and instances of bad judgment do not necessarily render

representation ineffective. Id.

       Under the second prong, the petitioner must show that the deficient performance

resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner may show prejudice by

demonstrating that there is “a reasonable probability (i.e. a probability sufficient to

undermine confidence in the outcome) that, but for counsel’s errors, the result of the

                                               6
proceeding would have been different.” Id. A petitioner’s failure to satisfy either prong will

cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154.

Stated differently, “[a]lthough the two parts of the Strickland test are separate inquires, a

claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

2006) (citing Williams, 706 N.E.2d at 154).

       Brooks challenges the post-conviction court’s determination that he did not receive

ineffective assistance of trial counsel. In raising this challenge, Brooks claims that his trial

counsel failed to interview Billups (whom Brooks claimed would provide him with an

unequivocal alibi), to file a notice of alibi, and to call Billups as a defense witness at trial.

Brooks argues that trial counsel’s alleged failure to interview Billups “fell below an objective

standard of reasonableness.” Appellant’s Br. p. 11. Upon reviewing a claim that trial

counsel did not interview a possible available alibi witness, “we apply the Strickland two-

part test to determine whether trial counsel’s actions fall below an objective standard of

reasonableness based on prevailing norms and to determine whether counsel’s performance

resulted in prejudice.” West v. State, 938 N.E.2d 305, 310-11 (Ind. Ct. App. 2010), trans.

denied.

       With regard to the first prong, Brooks asserts that trial counsel’s performance was

deficient because Billups allegedly would have given him an alibi, testifying that Brooks was

not home at the time of the second controlled buy. During the post-conviction proceedings,

Billups indicated that she would have testified at trial that Brooks had loaded the couple’s

five young children and his nineteen-year-old brother into the family vehicle and had picked

                                               7
her up from work at 1:00 a.m. Billups indicated that she would also have testified that she

then drove the family to the grocery store, where they bought food for a Fourth of July

cookout before returning home at approximately 2:30 a.m., or after the second controlled buy

had allegedly occurred. Billups, however, had no corroborating evidence to support her

version of the facts, and the times provided by Billups would have contradicted the times

provided by Brooks during his trial testimony regarding his and Billups’s actions on the night

in question.

       The record demonstrates that while trial counsel may not have officially interviewed

Billups, trial counsel was aware of the nature of Billups’s proffered testimony. At some

point, trial counsel determined that she was not going to call Billups as a witness because she

had “suspicions” about Billups’s credibility. Tr. p. 72. The record reveals that trial counsel

notified Brooks on February 7, 2008, that she

       would no longer speak with Rachelle Billups about your case. She continues
       to be rude and abusive during our telephone calls and she recently left several
       rude, abusive and inappropriate voice mail messages at my office—I’ve saved
       all the messages. I will no longer subject myself to her abusive tirades.

Petitioner’s Ex. 4. In addition, the post-conviction record demonstrates that Billups was

interviewed by a member of trial counsel’s staff. Trial counsel reviewed this interview.

While trial counsel had initially included Billups as a potential defense witness, trial counsel

did not file a notice of alibi because she determined that Billups’s proffered testimony would

not be beneficial to the theory of defense. Further, review of the record demonstrates that

Billups’s proffered testimony would have been in conflict with the corroborated testimony of


                                               8
the CI and the testimony of one of the law enforcement officers who was involved with the

controlled buy, which indicated that the vehicle that Billups claimed that she and Brooks

were driving was parked in front of Billups’s and Brooks’s residence during the relevant time

period.

       In determining that trial counsel did not provide ineffective assistance by failing to

interview and call Billups as a witness at trial, the post-conviction court found that the

proffered alibi was “extremely implausible” and dubious for a number of reasons, explaining

as follows:

       The vehicle which was allegedly used to transport all of the occupants of the
       household first to Ms. Billups’s employment and then to the store was parked
       in front of the residence during the period it was allegedly being used for that
       purpose. The five little children were dragged out in the middle of the night
       when [Brooks’s] 19-year old brother would have been available to babysit for
       them. [Brooks] was not arrested until nearly two months after the event in
       question, so it is dubious that either he or Ms. Billups could remember
       precisely that evening and precisely those times that they were in the car and at
       the PayLess. The tape of the second transaction had the voices of children on
       it, so the alibi as to the second count was dubious. Also, [Brooks] could not
       identify anybody else who might have been the dealer with respect to the
       second transaction, which took place inside of his residence.

Appellant’s App. p. 106. In light of the implausible and dubious nature of Billups’s

proffered alibi testimony, the post-conviction court determined that trial counsel’s strategy of

attempting to show that the CI was unreliable was a more promising strategy than the strategy

of attempting to show that Brooks, Billups, and the children were not present in their home at

the time of the second transaction.

       Upon review, we agree with the determination of the post-conviction court and


                                               9
conclude that trial counsel’s decision to forgo presenting the alleged, seemingly implausible

alibi testimony from Billups was a tactical decision based on trial counsel’s evaluation of

Billups’s credibility and of the effect that Billups’s testimony would have on Brooks’s

defense. We also agree with the post-conviction court that trial counsel’s attempt to attack

the CI’s credibility was a sound strategy. We will not second guess trial counsel’s tactical

decisions and strategy in this regard.1 Accordingly, we conclude that Brooks has failed to

show how his trial counsel’s actions in this regard fell below an objective standard of

reasonableness.

        Further, we note that Brooks’s reliance on the United States Court of Appeals for the

Seventh Circuit’s opinion in United States ex rel. Hampton v. Leibach, 347 F.3d 219, 246

(7th Cir. 2003), is misplaced, as the court’s opinion in Hampton can easily be distinguished

from the instant matter. In Hampton, eyewitness testimony was “the linchpin” of the State’s

case against the defendant. 347 F.3d at 249. There was no physical evidence tying the

defendant to the attack on the victims. Id. at 350. None of the three eyewitnesses called to

testify by the State who identified the defendant as an assailant knew the defendant, and none

of those three witnesses had more than a momentary glimpse of the assailant whom they

identified as the defendant. Id. The eyewitnesses “got that look under conditions that were

anything but ideal: the attack was chaotic and perpetrated by a large group of people, and the

house lights in the Amphitheatre had been dimmed for the concert.” Id. “Moreover, by their


        1
           We find it noteworthy that trial counsel’s strategy and tactical decisions successfully raised
reasonable doubt as to the first Class A felony charge.

                                                   10
own account, none of the witnesses had, prior to seeing a line-up, provided a physical

description of the assailant they identified as [defendant] to the authorities.” Id. The Court

noted that opposing testimony from other eyewitnesses to the attacks, suggesting that the

defendant was not a participant, would have given the jury a qualitatively different and more

powerful reason to believe that the State’s witnesses were mistaken in their identification of

the defendant. Id. The record further reveals that “there were such exculpatory eyewitnesses

available to the defense.” Id. at 251. In finding that the defendant’s trial counsel provided

ineffective assistance by failing to interview these additional exculpatory eyewitnesses, the

Court noted that there was no reason not to contact and interview the other eyewitnesses as

the other eyewitnesses were not “implicated in the attacks, nor did they suffer from any other

disability that necessarily would have impaired their credibility in the eyes of the jury.” Id.

       Here, unlike the eyewitnesses presented by the State in Hampton, the CI had known

Brooks for seven or eight years prior to the night of the controlled buys. The CI was familiar

with where Brooks lived and referred to Brooks by a nickname. The CI’s testimony

regarding the controlled buys was corroborated by four different law enforcement officers

who either observed or participated in the controlled buys. The CI’s testimony was also

corroborated by other evidence against Brooks, including an audio recording that was made

during the second controlled buy. In addition, unlike the seemingly credible additional

eyewitnesses in Hampton, Brooks’s trial counsel had concerns about Billups’s credibility and

the potentially detrimental effect that her testimony might have on the defense.

       With regard to the second prong, Brooks claims that he demonstrated prejudice. We

                                              11
cannot agree. Again, the record demonstrates that the CI testified to the circumstances

surrounding his purchase of cocaine from Brooks. Brooks’s trial counsel successfully raised

reasonable doubt as to whether Brooks committed one of the charged offenses, as is

evidenced by the jury’s failure to reach a unanimous verdict on the first Class A felony

charge. Further, although Brooks’s trial counsel attempted to challenge the CI’s credibility,

the CI’s testimony was corroborated by the testimony of four law enforcement officers. The

CI’s corroborated testimony was in conflict with Brooks’s trial testimony and would have

been in conflict with Billups’s proffered testimony if Billups had been called as a witness

during trial. In addition, Brooks’s trial counsel indicated that she had concerns about

Billups’s credibility, which likely would have been attacked by the prosecution if Billups had

been called as a witness during trial. In light of the fact that the CI’s corroborated testimony

would have been in conflict with Billups’s proffered testimony coupled with the fact that trial

counsel had seemingly legitimate pre-trial concerns about whether Billups would make a

credible witness during trial, we cannot say that there is a reasonable probability that, but for

trial counsel’s alleged error, the result of the proceedings would have been different. See

Reed, 866 N.E.2d at 769.

                                       CONCLUSION

       In sum, we conclude that the post-conviction court did not err in determining that

Brooks failed to establish that he suffered ineffective assistance from his trial counsel.

Accordingly, we affirm the judgment of the post-conviction court.

       The judgment of the post-conviction court is affirmed.

                                               12
BARNES, J., and BROWN, J., concur.




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