MEMORANDUM DECISION                                                        FILED
                                                                      Jun 03 2016, 5:58 am

Pursuant to Ind. Appellate Rule 65(D),                                     CLERK
                                                                       Indiana Supreme Court
this Memorandum Decision shall not be                                     Court of Appeals
                                                                            and Tax Court
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
Stacy R. Uliana                                          Gregory F. Zoeller
Bargersville, Indiana                                    Attorney General

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Shahid Iqbal,                                            June 3, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         55A01-1507-PC-937
        v.                                               Appeal from the Morgan Superior
                                                         Court
State of Indiana,                                        The Honorable Jane Spencer
Appellee-Plaintiff.                                      Craney, Judge
                                                         Trial Court Cause No.
                                                         55D03-1402-PC-161



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016             Page 1 of 16
                                          Case Summary
[1]   Shahid Iqbal appeals the denial of his petition for post-conviction relief, which

      he filed after this Court affirmed his convictions for the murder of his wife and

      several other crimes. The post-conviction court rejected his claims that his

      attorney provided ineffective assistance both at trial and on appeal and that two

      of his convictions violate the Indiana Constitution’s ban on double jeopardy.

      Finding no error, we affirm.



                            Facts and Procedural History
[2]   In July 2002, Iqbal and his wife Tammy were going through a divorce and were

      living separately. However, on the morning of July 6, their daughter, A.I.,

      awoke to find Iqbal in Tammy’s apartment. They were arguing, and Iqbal had

      a gun in his hand. Tammy and A.I. attempted to leave the apartment, but Iqbal

      physically prevented them from doing so. At one point, Tammy was able to get

      the gun and unload it, but Iqbal then pulled Tammy’s fingers backwards, took

      the gun back, and reloaded it. The arguing gradually subsided, and Iqbal and

      Tammy were just talking, but then A.I., who was playing a game in an

      adjoining room, heard a gunshot. Tammy had been shot in the middle of the

      chest. When A.I. looked up, the gun was laying on the counter, and Iqbal was

      walking to the couch and crying. A.I. ran outside screaming, and a neighbor

      came to the apartment. Tammy was still alive at that point, but the neighbor

      never saw Iqbal go near her, and Tammy eventually died. Iqbal later told



      Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 2 of 16
      police that he did not intend to shoot Tammy and that the gun “went off by

      itself.” Trial Ex. 29C, p. 71.

[3]   The State charged Iqbal with murder, neglect of a dependent (for firing the gun

      near A.I.), and several other crimes. Before trial, the State filed a motion

      seeking permission to introduce evidence of prior misconduct by Iqbal pursuant

      to Indiana Rule of Evidence 404(b). The trial court granted the State’s motion

      in part, allowing the State to present evidence of acts committed during the year

      before the shooting (i.e., July 7, 2001, through July 6, 2002). Chief among

      these was an incident on March 18, 2002, during which Iqbal placed a gun

      against Tammy’s head and threatened to kill her.

[4]   The trial was held in June 2003. During jury selection, the court and Iqbal’s

      attorney questioned a potential juror whose wife worked in the child-support

      division of the prosecutor’s office. He said he could be fair to both sides, and

      Iqbal’s attorney did not move to strike him from the jury pool, either

      peremptorily or for cause. He eventually became the foreman of the jury.


[5]   The State presented more than thirty witnesses who testified about the

      confrontation and arguing on the day of the shooting, the shooting itself, Iqbal’s

      statements to police after the shooting, the March 18, 2002 incident, and other

      pre-shooting conduct by Iqbal, including following Tammy, sitting outside her

      place of employment, pushing and shoving her, and on one occasion starting to

      grab her by the hair. Multiple witnesses also testified to having heard Iqbal say

      something like, “If I can’t have her, no one will.” Tr. p. 842, 865. In addition


      Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 3 of 16
      to all of this evidence, the trial court, over numerous hearsay objections by

      Iqbal’s attorney, allowed eleven witnesses to testify about things Tammy had

      told them: that she was afraid of Iqbal, that he had threatened her, and that she

      thought he was going to kill her. The trial court admitted this testimony under

      Indiana Rule of Evidence 803(3), which establishes a state-of-mind exception to

      the general prohibition against hearsay evidence.

[6]   The trial court also allowed the State to present the testimony of an expert on

      the behavior of victims of domestic violence, that is, Battered Woman

      Syndrome. The expert did not testify about Tammy specifically or the facts of

      this case. Rather, she testified, among other things, that victims of domestic

      violence struggle to leave their abusers and that leaving is when they are most at

      risk. The trial court allowed this testimony so that the jury could be “educated”

      about domestic violence because domestic violence had “been an issue

      throughout this case.” Id. at 999.


[7]   Near the end of the prosecutor’s closing argument, he referred to Iqbal, who is

      from Pakistan, as a “terrorist”:

              PROSECUTOR: Why . . . if this is your wife and your daughter
              and there’s no outside protector, what’s the gun for? As a father,
              as a protector with an eight-year-old daughter, I have an absolute
              right to defend my daughter and my wife and myself and you do
              to[o]. But who’s he defending them from? Folks, he’s become
              the terrorist within. He’s become . . .


              DEFENSE COUNSEL: Your Honor, I mean I object to the
              reference of terrorist.

      Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 4 of 16
               COURT: Sustained.


               PROSECUTOR: He’s become the person who unlike the father
               and husband being the protector become the enemy [sic]. . . .


       Trial Tr. p. 1128-29. Iqbal’s attorney did not ask the court to admonish the jury

       regarding the “terrorist” comment, nor did he request a mistrial.

[8]    The trial court instructed the jury on both murder and reckless homicide, but

       the jury found Iqbal guilty of murder and on all of the other counts. After

       sentencing Iqbal to 58 years, the trial court appointed Iqbal’s trial attorney to

       represent him on appeal.

[9]    In his brief on appeal, Iqbal’s attorney did not challenge the hearsay evidence to

       which he had repeatedly objected during trial. Instead, he argued that the trial

       court abused its discretion by admitting (1) the 404(b) evidence (primarily the

       March 18, 2002 incident) and (2) the testimony of the domestic violence expert.

       We rejected both arguments and affirmed Iqbal’s convictions. Iqbal v. State, 805

       N.E.2d 401 (Ind. Ct. App. 2004). Iqbal’s attorney did not petition for transfer

       to the Indiana Supreme Court.


[10]   Ten years later, Iqbal filed a petition for post-conviction relief. He claimed that

       his attorney provided ineffective assistance in a variety of ways, including: (1)

       failing to challenge for cause the potential juror who was married to an

       employee of the prosecutor’s office; (2) failing to request an admonishment and

       a mistrial after the prosecutor referred to Iqbal as a “terrorist”; (3) failing to

       challenge the admission of the hearsay evidence on appeal; and (4) failing to file
       Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 5 of 16
       a petition to transfer regarding the admission of the Battered Woman Syndrome

       evidence.

[11]   In an affidavit executed before the post-conviction hearing, and again at the

       hearing, Iqbal’s attorney stated that most of the issues complained of by Iqbal

       were the result of sloppiness and personal issues, not strategy. In a post-hearing

       memorandum, Iqbal added a claim that his convictions for murder and neglect

       of a dependent violate the actual-evidence test under the Double Jeopardy

       Clause of the Indiana Constitution. The post-conviction court adopted

       verbatim the State’s proposed findings of fact and conclusions of law and

       rejected all of Iqbal’s claims.

[12]   Iqbal now appeals.



                                  Discussion and Decision
[13]   Iqbal contends that the post-conviction court erred by rejecting both his

       ineffective-assistance-of-counsel claims and his double jeopardy claim. A

       person seeking post-conviction relief bears the burden of establishing grounds

       for relief by a preponderance of the evidence. Hollowell v. State, 19 N.E.3d 263,

       268-69 (Ind. 2014). When appealing from the denial of such relief, the

       petitioner stands in the position of one appealing from a negative judgment. Id.

       at 269. To prevail, the petitioner must show that the evidence as a whole leads

       unerringly and unmistakably to a conclusion opposite that reached by the post-

       conviction court. Id. We review the post-conviction court’s legal conclusions


       Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 6 of 16
       de novo, but we will not reverse its factual findings or ultimate judgment unless

       they are clearly erroneous, that is, unless they leave us with a definite and firm

       conviction that a mistake has been made. Id. The post-conviction court is the

       sole judge of the credibility of the witnesses. Hall v. State, 849 N.E.2d 466, 468-

       69 (Ind. 2006).

[14]   Iqbal notes that the post-conviction court signed the State’s proposed findings of

       fact and conclusions of law exactly as they were submitted. While this practice

       erodes our confidence that the findings reflect the considered judgment of the

       trial court, it is not prohibited. Prowell v. State, 741 N.E.2d 704, 709 (Ind. 2001).

       The question remains whether the findings adopted by the court are clearly

       erroneous. Pruitt v. State, 903 N.E.2d 899, 940 (Ind. 2009), reh’g denied.


                          I. Ineffective Assistance of Counsel
[15]   Iqbal first challenges the post-conviction court’s conclusion that his attorney did

       not provide ineffective assistance of counsel, either at trial or on appeal. A

       defendant claiming that his attorney was ineffective at trial must show by a

       preponderance of the evidence that (1) counsel’s performance fell below the

       objective standard of reasonableness based on “prevailing” professional norms

       and (2) the defendant was prejudiced by this substandard performance, i.e.,

       there is a “reasonable probability” that, but for counsel’s errors or omissions,

       the outcome of the trial would have been different. Stephenson v. State, 864

       N.E.2d 1022, 1031 (Ind. 2007), reh’g denied. The same standard applies to the

       performance of appellate counsel. Taylor v. State, 717 N.E.2d 90, 94 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 7 of 16
       1999). “We afford great deference to counsel’s discretion to choose strategy

       and tactics, and strongly presume that counsel provided adequate assistance

       and exercised reasonable professional judgment in all significant decisions.”

       McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002).


       A. No challenge for cause of the juror whose wife worked for
                         the prosecutor’s office
[16]   Iqbal contends that the post-conviction court erred by concluding that a

       challenge for cause to the juror whose wife worked in the child-support division

       of the prosecutor’s office would not have been granted and that Iqbal’s attorney

       therefore was not ineffective for failing to make such a challenge. We agree

       with Iqbal on the first point: he would have been entitled to have the juror

       stricken for cause. Our Supreme Court has held that a prospective juror who is

       related to an employee of the prosecutor’s office trying the case is presumed to

       be biased in favor of that office and as such is subject to a challenge for cause.

       See Haak v. State, 417 N.E.2d 321 (Ind. 1981) (holding that spouse of deputy

       prosecutor was impliedly biased and should not have been allowed on jury);

       Barnes v. State, 330 N.E.2d 743 (Ind. 1975) (explaining that if spouse of second

       cousin of prosecutor’s employee was aware of relationship, “grounds for

       challenge for cause will have been shown to have existed”).

[17]   However, the fact that a challenge for cause would have been meritorious does

       not mean that the decision of Iqbal’s attorney to forego such a challenge

       constituted deficient performance. The dialogue with the juror during jury



       Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 8 of 16
selection, read in its entirety, strongly suggests that Iqbal’s attorney’s choice to

refrain from making a challenge for cause was a strategic one:

        COURT: [Juror], your wife works for the Prosecuting Attorney.
        How are you going to . . .


        JUROR: Yes, Ma’am.


        COURT: I know . . . I . . . I would imagine [defense counsel]
        will ask you a couple questions about that, but is that going to
        affect you knowing, you know, he is the head guy.


        JUROR: No Ma’am, I . . . I don’t know him. I met him in a
        hallway once in all the time that my wife has worked under him
        and I know . . .


        COURT: And child support doesn’t do criminal stuff. I don’t
        even think they do the criminal non-support for the dependent,
        do they?


        PROSECUTOR: Not very often.


        COURT: Okay.


        PROSECUTOR: Bob does most of those.


        COURT: All right. So you’re telling me you could be fair to
        both sides?


        JUROR: Yes Ma’am, I believe I could.




Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 9 of 16
        COURT: Okay, because . . . because that’s what I’ve got to
        have. Okay. [Defense counsel]?


        DEFENSE COUNSEL: Let’s . . . okay. I’ll . . . we’ll . . . we’ll
        talk about that secondly. All right. First thing and I . . . I don’t
        mean to . . . it’s not my intent to embarrass you so if I’m treading
        someplace you don’t want me to tread, you let me know. On
        question, let’s see, sixteen, it was all kinds of personal questions
        about have you ever served as a juror, or if you’ve ever been a
        witness, that sort of thing. Question asks then, have you ever
        been convicted of a crime. If yes, please list the crime, when and
        where a conviction lies. And you checked yes and then you
        crossed some stuff out.


        JUROR: Yeah, I answer that my mistake [sic]. I haven’t served
        as a juror, but I will answer it if you want me to.


        DEFENSE COUNSEL: Okay.


        JUROR: I was convicted of DUI in Hancock County quite a
        number of years ago. I can’t remember, so I realized I wasn’t
        supposed to answer it so that was a freebee.


        DEFENSE COUNSEL: Okay, all right. Well again, sometimes
        you never know what you’re going to get when you ask that, so I
        did . . . it wasn’t my intent to embarrass you. The question . . .
        the key thing sir, from my perspective in terms of . . . of your
        wife’s job, it’s sort of a feeling or . . . or for example . . . let’s say
        you sit on this jury and you listen to everything and you decide
        as a juror that [Iqbal] is not guilty. Or you know, he’s guilty of
        something but not everything, whatever, so the question would
        be at that next Christmas party or next time in the hall or
        something like this, is there going to be that . . . when you bump
        into him or vice versa or something, is there going to be that, oh
        my God, you know, that . . . that look of disa . . . you know . . .

Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 10 of 16
        you know what I’m talking about? That’s . . . that sort of in a
        nutshell with awkward way [sic] to say kind of what’s an issue
        here?


        JUROR: I’m not a real people person. I doubt seriously . . . I
        avoid my wife’s office as much as I can. I don’t like being here.


        DEFENSE COUNSEL: That’s . . . that’s one of the best things
        I’ve ever heard. Me too, I don’t like being here either.


        JUROR: I try to . . . I don’t go to office parties, things like that.
        Frankly if he hadn’t been here, I don’t know if I would have
        recognized him second time [sic] if I had walked by and certainly
        wouldn’t have spoken. I’m just not a real personable [sic].


        DEFENSE COUNSEL: Well . . . well again I . . . I don’t mean
        to make a mountain out of this molehill, but it’s just something
        that we had to explore so I thank you for your honesty.


Trial Tr. p. 224-26. Several parts of this exchange could have convinced Iqbal’s

attorney that the juror would be fair, and perhaps even defense-friendly: (1) the

juror did not “know” the prosecutor; (2) the juror had met the prosecutor only

once; (3) the child-support division of the prosecutor’s office does not do

“criminal stuff” very often; (4) the juror said he believed he could be fair to both

sides; (5) the juror had himself been convicted of a crime; (6) the juror avoided

his wife’s office as much as possible; (7) the juror did not like being in court;

and (8) the juror is not personable and would not have spoken to the prosecutor

if they had crossed paths.




Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 11 of 16
[18]   Furthermore, in the affidavit he executed shortly before the post-conviction

       hearing, Iqbal’s attorney explained why he was comfortable with the juror:

               I did not strike the juror because his comments regarding his lack
               of knowledge about the prosecutor made me feel he would not
               try to influence the other jurors and would keep to himself. Also,
               the fact that his wife worked in the child support division, which
               had less of a criminal bent than the rest of the prosecutor’s office,
               reduced my concern I had about the juror’s wife’s employment.


       P-C Ex. E, ¶27. It is true, as Iqbal points out, that the attorney later testified

       that his failure to challenge the juror for cause was the result of “sloppiness,”

       not strategy, and “wasn’t a good decision.” P-C Tr. p. 39. Of course, the post-

       conviction court was not obligated to credit that testimony, especially in light of

       the attorney’s own pre-hearing affidavit. See Hall, 849 N.E.2d at 468-69.


[19]   Iqbal has not convinced us that his attorney performed deficiently when he

       failed to challenge the juror for cause.


         B. No request for an admonishment and a mistrial after the
                   prosecutor called Iqbal a “terrorist”
[20]   Iqbal also argues that the post-conviction court should have found his attorney

       to have been ineffective for only objecting to the prosecutor’s use of the term

       “terrorist” and failing to also request an admonishment and a mistrial. We

       agree with Iqbal that referring to a person of Middle Eastern descent as a

       “terrorist,” especially post-9/11, constitutes inexcusable prosecutorial

       misconduct. In fact, the post-conviction judge, who also presided over the trial,

       stated that she remembered the comment and was “shocked” that she had not
       Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 12 of 16
       admonished the jury even without a request from Iqbal’s attorney. P-C Tr. p.

       103.

[21]   However, even if we assume that Iqbal’s attorney performed deficiently by

       failing to request an admonishment and then a mistrial, there is not a

       reasonable probability that an admonishment would have changed the jury’s

       verdict, that the trial court would have granted a mistrial, or that this Court or

       our Supreme Court would have reversed his convictions on direct appeal. The

       evidence that Iqbal intended to shoot Tammy was overwhelming. Four months

       before the shooting, Iqbal had held a gun to her head and threatened to kill her.

       Multiple witnesses testified that Iqbal had said something like, “If I can’t have

       her, no one will.” The same witnesses testified that they personally saw Iqbal

       follow Tammy, sit outside her place of employment, and physically abuse her.

       Iqbal’s own daughter testified that in the hours leading up to the shooting, Iqbal

       was arguing with Tammy, physically prevented her from leaving the apartment,

       and aggressively took the gun from her after she had gotten ahold of it and

       unloaded it. Tammy was shot in the middle of the chest. Iqbal did not attempt

       to save her. Given all of this evidence, the post-conviction court correctly ruled

       that the failure to request an admonishment and a mistrial did not amount to

       ineffective assistance of counsel.


                             C. No hearsay challenge on appeal
[22]   Next, Iqbal asserts that the testimony regarding Tammy’s statements that she

       feared Iqbal would kill her was inadmissible hearsay, that the trial court abused

       its discretion by allowing the testimony, and that the post-conviction court erred
       Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 13 of 16
       when it concluded that Iqbal’s attorney was not ineffective for failing to raise

       the issue on appeal. We agree with Iqbal on the first two points. Because

       Iqbal’s attorney conceded the turbulent nature of the relationship and did not

       otherwise place Tammy’s state of mind at issue during trial, the trial court

       abused its discretion by admitting the testimony pursuant to the state-of-mind

       exception (Evidence Rule 803(3)) to the hearsay rule. See, e.g., Bassett v. State,

       795 N.E.2d 1050, 1051-52 (Ind. 2003) (holding that where defendant had not

       placed murder victim’s state of mind in issue, trial court abused its discretion by

       allowing witnesses to testify that victim had told them that she feared defendant

       and that defendant had threatened her); Willey v. State, 712 N.E.2d 434, 443-44

       (Ind. 1999) (same).

[23]   That said, even assuming that Iqbal’s attorney performed deficiently by failing

       to raise the hearsay issue on appeal, raising the issue would not have resulted in

       the reversal of Iqbal’s convictions. In light of the abundant evidence of Iqbal’s

       guilt, as detailed in the preceding section, the trial court’s error in admitting the

       evidence was harmless beyond a reasonable doubt, and the failure to raise the

       issue on appeal did not constitute ineffective assistance of counsel.


           D. No petition to transfer on Battered Woman Syndrome
[24]   Iqbal’s final ineffectiveness claim is that his attorney should have filed a petition

       to transfer asking our Supreme Court to consider the Battered Woman

       Syndrome issue. He argues that there is a reasonable probability that the

       Supreme Court would have granted transfer and reversed his convictions. We

       acknowledge that the use of Battered Woman Syndrome evidence is a thorny
       Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016   Page 14 of 16
       issue and that the use of it in this case—to explain the actions of a victim who

       did not testify and whose state of mind was not at issue—presented unique and

       close questions of law. As such, there is a fair chance that our Supreme Court

       would have granted transfer.1 Again, though, given the overwhelming evidence

       of Iqbal’s intent to shoot Tammy, even if we assume that Iqbal’s attorney

       performed deficiently by failing to seek transfer, we are fully confident that our

       Supreme Court would have found any error to be harmless and affirmed Iqbal’s

       convictions. For this reason, we cannot say that the failure to request transfer

       represented ineffective assistance of counsel.


                                          II. Double Jeopardy
[25]   Iqbal’s last argument is that the post-conviction court should have found that

       his convictions for murder and neglect of a dependent violate the actual-

       evidence test under Indiana’s Double Jeopardy Clause, since they “are

       predicated on the firing of the same shot.” Appellant’s Br. p. 37. The State

       argues that we should not address this issue because Iqbal could have raised it,

       but did not, on direct appeal. See, e.g., Allen v. State, 749 N.E.2d 1158, 1163

       (Ind. 2001) (explaining that issues available but not raised on direct appeal are

       waived for purposes of post-conviction proceeding), reh’g denied. The State did




       1
        As Iqbal notes, Indiana Rule of Appellate Procedure 57(H) lists the “principal considerations governing the
       Supreme Court's decision whether to grant transfer,” including, “(4) Undecided Question of Law. The Court of
       Appeals has decided an important question of law or a case of great public importance that has not been, but
       should be, decided by the Supreme Court.”

       Court of Appeals of Indiana | Memorandum Decision 55A04-1507-PC-937 | June 3, 2016             Page 15 of 16
       not make this waiver argument below, and the post-conviction court addressed

       the merits of Iqbal’s claim. We will do the same.

[26]   It is undisputed that Iqbal’s murder and neglect-of-a-dependent convictions

       were based on the same gunshot. However, they involved two separate victims

       (Tammy and A.I.). Our Supreme Court has held that multiple convictions

       based on a single act do not violate the actual-evidence test when there are

       multiple victims. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002) (affirming

       arson and felony murder convictions based on one fire but involving multiple

       victims). Iqbal bases his actual-evidence claim entirely on the fact that his

       convictions arose from a single gunshot and does not address the fact that they

       involved separate victims. Therefore, we will not disturb the post-conviction

       court’s rejection of his double-jeopardy claim.


[27]   Affirmed.

       Bailey, J., and Crone, J., concur.




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