MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                               Aug 19 2019, 10:21 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Emmanuel J. Cain                                         Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Emmanuel J. Cain,                                        August 19, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1979
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Marc R. Kellams,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         53C02-1601-PC-140



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019                   Page 1 of 9
                                          Case Summary
[1]   Pro-se Appellant-Petitioner Emmanuel J. Cain (“Cain”) appeals the denial of

      his petition for post-conviction relief, following his convictions for two counts

      of Dealing in Cocaine. We affirm.



                                                    Issues
[2]   Cain presents two issues for review:


              I.       Whether he was denied the effective assistance of trial
                       counsel; and


              II.      Whether he was denied the effective assistance of appellate
                       counsel.


                            Facts and Procedural History
[3]   The relevant facts were recited by a panel of this Court on direct appeal, as

      follows:


              On July 18, 2013, confidential informant C.H. contacted
              Bloomington Police Department Detective Erich Teuton.
              Detective Teuton arranged to have C.H. buy drugs from Cain at
              a hotel in Bloomington and met her there at 8:30 p.m. Detective
              Teuton searched C.H. for drugs and money, and he provided her
              with a video recording device and money to buy drugs. C.H.
              then bought two half-gram bags of crack cocaine from Cain. The
              resulting buy video was of poor quality, and C.H. had entered
              another room before locating Cain.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019   Page 2 of 9
                In order to obtain better quality, recorded evidence, C.H. and
                Detective Teuton conducted two similar controlled buys from
                Cain the following day, this time using a different recording
                device. The first buy on July 19 yielded two bags containing .27
                grams and .19 grams of crack cocaine, and the second buy
                yielded two more bags containing .27 and .23 grams of crack
                cocaine. The Indiana State Crime Lab tested the larger bags
                from each buy and confirmed that both contained a cocaine base.


                On August 15, 2013, the State charged Cain with three counts of
                dealing in cocaine, all as Class B felonies, each of which related
                to one of the three sales of crack cocaine that transpired on July
                18 and 19. At his ensuing jury trial on April 14, 2014, the trial
                court admitted into evidence the video recordings of Cain’s sales
                to C.H. and Detective Teuton’s related testimony. Cain did not
                object to the admission of this evidence. However, after the jury
                had returned its verdicts, Cain for the first time complained that
                the State’s video evidence violated his Sixth Amendment rights.


      Cain v. State, No. 53A01-1406-CR-242, slip op. at 1 (May 26, 2015), trans.

      denied.


[4]   Cain appealed, challenging his convictions and his twenty-year aggregate

      sentence. He raised three issues: whether the trial court committed

      fundamental error when it admitted recordings of Cain’s drug transactions and

      testimony regarding those recordings; whether sufficient evidence supported his

      convictions; and whether his sentence was inappropriate. See id. His

      convictions and sentence were affirmed and the Indiana Supreme Court denied

      transfer.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019   Page 3 of 9
[5]   On January 22, 2016, Cain filed his petition for post-conviction relief, which

      was amended on February 28, 2018. Also on February 28, the post-conviction

      court conducted a hearing at which argument was heard but no testimony was

      presented. On May 9, 2018, the post-conviction court entered its findings,

      conclusions, and order denying Cain post-conviction relief. He now appeals.



                                 Discussion and Decision
                                        Standard of Review
[6]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing

      from the denial of post-conviction relief, the petitioner stands in the position of

      one appealing from a negative judgment. Id. On review, we will not reverse

      the judgment of the post-conviction court unless the evidence as a whole

      unerringly and unmistakably leads to a conclusion opposite that reached by the

      post-conviction court. Id. A post-conviction court’s findings and judgment will

      be reversed only upon a showing of clear error, that which leaves us with a

      definite and firm conviction that a mistake has been made. Id. In this review,

      findings of fact are accepted unless they are clearly erroneous and no deference

      is accorded to conclusions of law. Id. The post-conviction court is the sole

      judge of the weight of the evidence and the credibility of witnesses. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019   Page 4 of 9
                               Effectiveness of Trial Counsel
[7]   Cain claims that his counsel was ineffective because (1) he failed to move to

      suppress the videos on grounds that they were obtained in violation of Cain’s

      rights under the Fourth Amendment to the United States Constitution and

      Article 1, Section 13 of the Indiana Constitution and (2) he had a conflict of

      interest precluding his effective representation of Cain.


[8]   Effectiveness of counsel is a mixed question of law and fact. Strickland v.

      Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

      of ineffective assistance under the two-part test announced in Strickland. Id. To

      prevail on an ineffective assistance of counsel claim, a defendant must

      demonstrate both deficient performance and resulting prejudice. Dobbins v.

      State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 87).

      Deficient performance is that which falls below an objective standard of

      reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

      1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that

      “there is a reasonable probability that, but for counsel’s unprofessional errors,

      the result of the proceeding would have been different. A reasonable

      probability is a probability sufficient to undermine confidence in the outcome.”

      Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

      1996). The two prongs of the Strickland test are separate and independent

      inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an

      ineffectiveness claim on the ground of lack of sufficient prejudice … that course

      should be followed.” Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019   Page 5 of 9
[9]    We “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). Counsel is to be afforded

       considerable discretion in the choice of strategy and tactics. Timberlake v. State,

       753 N.E.2d 591, 603 (Ind. 2001). The decision whether or not to file a motion

       to suppress is a matter of trial strategy. See Monegan v. State, 721 N.E.2d 243,

       251 (Ind. 1999).


[10]   At the post-conviction hearing, Cain presented argument to the court, but no

       witnesses. According to Cain, he had asked his trial counsel to make a motion

       to suppress the incriminating video recordings and counsel had refused to do

       so. Cain asserted that he had “expected privacy” and did not “give consent to a

       warrantless search of his identity.” (P-C.R. Tr., pgs. 8-9.) He also claimed that,

       after the trial court denied trial counsel’s request for withdrawal, counsel was

       thereafter ineffective because of a conflict of interest. In denying Cain post-

       conviction relief, the court observed that trial counsel had objected to the video

       recordings as lacking adequate foundation or any authentication testimony

       from C.H. The post-conviction court concluded that Cain had not shown

       additional grounds for suppression, nor had Cain demonstrated that there was a

       conflict of interest precluding his trial counsel from effectively representing him.


[11]   On appeal from the denial of post-conviction relief, Cain asserts that he had an

       “expectation of privacy from being videotaped inside [the] motel room” and

       “the covert camera becomes [sic] a warrantless seizure of Cain’s identity.”

       Appellant’s Brief at 13. He suggests that his affirmative consent to video

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019   Page 6 of 9
       recording was a mandatory prerequisite to its admission as evidence, arguing:

       “it must be shown, before [an] informant’s seizure can be upheld, that

       defendant had consented to informant’s relevant actions where informant is

       acting as [a] police agent.” Id. at 14.


[12]   Our Indiana Supreme Court has “reject[ed] claims that the broadcast and

       recording of private conversations from a microphone and transmitter carried

       by a consenting participant in the conversation violates the rights of the other

       participants against unreasonable searches and seizures guaranteed by the

       Fourth Amendment.” Snellgrove v. State, 569 N.E.2d 337, 339-40 (Ind. 1991).

       In so doing, the Court relied upon the reasoning of the plurality opinion of

       United States v. White, 401 U.S. 745, 752 (1971):


               If the law gives no protection to the wrongdoer whose trusted
               accomplice is or becomes a police agent, neither should it protect
               him when that same agent has recorded or transmitted the
               conversations which are later offered in evidence to prove the
               State’s case.


[13]   Properly-authenticated video recordings may be offered as substantive evidence

       under a “silent witness” theory. McHenry v. State, 820 N.E.2d 124, 128 (Ind.

       2005). Cain offers no legal authority to support his contention that the absence

       of his affirmative consent to video recording rendered it inadmissible. And

       while Cain baldly asserts that, had trial counsel moved to suppress the video

       recordings on Fourth Amendment or Indiana constitutional grounds, they

       would have been excluded, again he provides no legal authority for his broad



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019   Page 7 of 9
       propositions. Cain has not shown that a motion to suppress made by trial

       counsel would have succeeded and probably changed the outcome of the trial.


[14]   “Ineffective assistance of counsel can occur where counsel is burdened by a

       conflict of interest,” that is, “a division of loyalties.” Johnson v. State, 948

       N.E.2d 331, 334 (Ind. 2011). But merely alleging a personal conflict or a

       history of tactical disagreements is not equivalent to allegations of divided

       loyalty between a defendant and another client. Id. at 335. Here, at most, Cain

       has alleged that he complained about his trial counsel’s strategy,1 trial counsel

       moved to withdraw his representation, and the trial court denied that motion.

       Cain has not alleged, much less demonstrated, that trial counsel had an actual

       conflict or divergent interests that precluded his effective representation of Cain.


                             Effectiveness of Appellate Counsel
[15]   A defendant is entitled to the effective assistance of appellate counsel. Stevens v.

       State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged standard for

       evaluating the assistance of trial counsel first enunciated in Strickland is

       applicable to appellate counsel ineffective assistance claims. Bieghler v. State,

       690 N.E.2d 188, 192 (Ind. 1997). There are three basic categories of alleged

       appellate ineffectiveness: (1) denying access to an appeal, (2) waiver of issues,

       and (3) failure to present issues well. Here, the second category is implicated,




       1
        According to Cain, he insisted that trial counsel should depose C.H. and trial counsel disagreed that a
       deposition was necessary.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019                    Page 8 of 9
       as Cain claims that appellate counsel “prejudiced him for not raising grounds of

       exclusion of inadmissible evidence.” Appellant’s Brief at 7. However, he fails

       to develop a corresponding argument.



                                               Conclusion
[16]   Cain has not demonstrated his entitlement to post-conviction relief on grounds

       of ineffectiveness of trial or appellate counsel. The post-conviction court

       properly denied the petition for post-conviction relief.


[17]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1979 | August 19, 2019   Page 9 of 9
