MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Sep 28 2017, 7:47 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
Antonio Jones                                            Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Antonio Jones,                                           September 28, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         45A04-1611-PC-2565
        v.                                               Appeal from the Lake Superior
                                                         Court, Criminal Division 4
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Respondent.                                     Judge
                                                         The Honorable Natalie Bokota,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         45G04-0602-PC-2



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017    Page 1 of 28
[1]   Antonio Jones appeals the Lake Superior Court’s denial of his petition for post-

      conviction relief. Jones argues that the post-conviction court clearly erred in

      rejecting his claim that his trial counsel was constitutionally ineffective.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Jones’s convictions for the murder of four people have spawned much

      litigation. The facts underlying his convictions have been stated and restated by

      this and other courts several times. Most recently, we set forth the facts as

      follows:


              On January 16, 2004, at approximately 6:00 p.m., Ronyale
              Hearne dropped off her twenty-three-month-old son, A.J., at the
              home of his father, Anthony McClendon, Sr., on Polk Street in
              Gary. McClendon lived at the residence with Laurice and Jimmy
              Jones (collectively, the Joneses).


              Hearne and her cousin, Donte Mills, returned to the residence on
              Polk Street to get A.J. shortly after midnight. She went upstairs,
              the door was open, and she saw Laurice on the couch “like she
              could be dead.” Tr. p. 382–84. Hearne called McClendon’s
              brother, Roosevelt Pickens, who arrived at the scene shortly
              thereafter. She walked further into the apartment and saw
              Jimmy’s body on the bathroom floor. She then saw Pickens
              standing over McClendon and holding A.J. It appeared as if
              McClendon’s “whole face was just blown open.” Id. at 389.


              Hearne took A.J. from Pickens and ran downstairs. Mills drove
              A.J. and Hearne to Northlake Hospital. At some point, Hearne
              pulled up A.J.’s shirt and noticed that he had a hole in his side.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 2 of 28
        A.J. was eventually transported to the University of Chicago
        Hospital by ambulance. It was determined that A.J. had suffered
        two gunshot wounds that had passed through his body. A.J. later
        died from his wounds.


        Pickens telephoned his friend, Terrell Bowens, upon arriving at
        the scene. Bowens went to the apartment, contacted the police,
        and waited approximately ten minutes for their arrival. At the
        residence, the police saw the bodies of McClendon and the
        Joneses and also discovered scales and powder cocaine on the
        kitchen counter as well as cocaine cooking on the stove.


        During the investigation, the police were able to determine that
        three different types of firearms were used in the murders.
        Autopsies performed on McClendon and the Joneses revealed
        that all three had died from multiple gunshot wounds.


        [Also] [o]n January 16, 2004, Maurice Fuller and Anita Goldsby
        held a party at their apartment in Gary that started around 7:00
        p.m. There were about twenty people at the party, and James
        Parks, Lenzo Aaron, and Jones were there and playing cards for
        money. At some point, Fuller bumped into Jones in the kitchen.
        The two were “joking around,” and Jones lifted up his shirt and
        revealed the butt of a gun. Tr. p. 1159–60. Jones said, “You don’t
        want none of this.” Id. Fuller described Jones’s handgun as an
        automatic, “like a 9mm or a .45.” Id. at 1160.


        While the three were playing cards at the party, Aaron and Parks
        got into an argument over some money. Jones was Aaron’s
        partner in the card game. The argument was settled, and Aaron
        told Parks to keep the money in dispute. At some point, Jones
        walked into the kitchen and said, “We just got a call from some
        dude ... do you want to go rob him?” Id. at 1198. Jones said that
        the caller had $6000 and some drugs in his possession. Aaron
        and Parks both agreed to rob the caller, and Parks and Jones left.

Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 3 of 28
        However, they returned to pick up Aaron, and the three then left
        again in Jones’s white Buick Roadmaster to commit the robbery.
        By this point, Aaron had seen the butt of the black semi-
        automatic handgun tucked into Jones’s waist. An AK–47 assault
        rifle was also on the backseat of Jones’s vehicle.


        When the three arrived at the Polk Street residence, Jones went
        in first, followed by Parks and then Aaron. Aaron was carrying
        the AK–47 rifle. After the three went up the stairs, Jones
        knocked, someone came to the door and asked who was there,
        and Jones replied, “It’s Tone.” Id. at 1210. As soon as the person
        inside opened the door, someone fired five or six shots. After the
        three entered, Aaron saw Laurice and A.J. on the couch. Parks
        and Jones had gone to the back of the residence, and at some
        point, Aaron heard Parks say, “Where the sh*t at, man?” Tr. p.
        1211. The man he was talking to responded, “Tone, James G.
        It’s like this man? It’s like this?” Id. at 1216. Laurice was pleading
        with Aaron, “Please, sir, don’t kill me. Please don’t kill me.” Id.
        at 1213. Aaron shook his head to indicate he was not going to
        harm her. However, Aaron, who was unable to see into the back
        of the apartment because a sheet was hanging in the doorway,
        heard Parks say, “Finish him off. Finish him off.” Id. at 1216.
        The others returned to the living room and grabbed the AK–47
        off Aaron’s shoulder. Thereafter, they went to the rear of the
        apartment and Aaron heard two more shots.


        Jones left, while Aaron and Parks remained in the living room.
        Parks told Aaron, “Finish the lady off, man.” Tr. p. 1216. Aaron
        told Parks, “Man I didn’t come here for that, I ain’t killing
        nobody,” then left the apartment. Id. at 1217. As Aaron was
        leaving, he heard two more shots. Id.


        Aaron did not take anything from the apartment, nor did he see
        Parks or Jones take anything. However, he was originally told
        that they were going to steal $6000, with each of them to take

Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 4 of 28
        $2000 from the robbery. Thereafter, Jones drove the three to the
        Oak Knoll apartments. Sometime after 12:50 a.m., Jones called
        Janeth Alexander for a ride, explaining that he had lost his keys.
        When Alexander arrived, Jones’s vehicle was outside. After
        Alexander picked him up, and they were driving along a
        drainage ditch on Chase Street, Jones asked her to stop the
        vehicle. However, Alexander refused because the weather was
        bad. Jones said he had been drinking, and Alexander thought
        that he appeared to be “hot or sick.” Tr. p. 1659. Jones rolled the
        window down, and she heard “something goes off—you know,
        hit the water.” Id. Jones turned around and asked her, “you
        didn’t see that, did you?” Id. Jones had tossed the gun into the
        water.


        After Jones was arrested, he called Alexander from the jail. Jones
        told her that she was his alibi, and that his life was in her hands.
        After Alexander testified in another proceeding, Jones called her
        and said that he was going to kill her.


        The day after the murders, Parks knocked on Aaron’s door, gave
        him $230, and asked him, “was [he] straight,” which Aaron took
        to mean, was he “cool with the $230.” Tr. p. 1232. Aaron feared
        for his life and that of his girlfriend, so he accepted the $230. Id.
        at 1233–34.


        [O]n January 19, 2004, Detective Michael Jackson talked to
        Jeffrey Lewis, Parks’s brother, about the incident on 2600 Polk,
        but Lewis did not identify himself at that time. Detective Jackson
        spoke again with Lewis on January 20, 2004, and for the first
        time in person on January 21, 2004. Lewis provided a written
        statement. Detective Jackson spoke with Lewis several times
        thereafter. Lewis knew that Parks had an AK–47 and that Parks
        had obtained the rifle through Shawn Dixon. He had seen Parks
        with the AK–47 and also described to Detective Jackson a .22
        caliber weapon that Parks had obtained from a person named


Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 5 of 28
        “Hype.” Tr. p. 975–76, 986. Lewis had also seen Jones with a .45
        caliber weapon on his lap before the night of the murders.


        Based on information that Lewis had provided, police officers
        were instructed to go to three separate locations to conduct
        surveillance on Parks, Aaron, and Jones. Search warrants were
        issued that culminated in ten searches, which included the
        residences of Aaron, Dixon, Parks’s father, Parks’s cousins’
        home, the address where Jones allegedly resided, and Parks’s
        girlfriend’s home. Police also searched the home of Jones’s
        girlfriend, Teshonta Champion.


        Fuller had known Parks for almost six years and had gone to a
        gun store with him to purchase the AK–47. However, they were
        unable to make the purchase. Instead, Dixon went to the store
        and made a down payment on the weapon. Dixon purchased the
        rifle for Parks, who paid Dixon the money for the gun.


        The AK–47 was later fired at Brandy Parks’s house at the Oak
        Knoll Apartments on New Year’s Eve. The police subsequently
        found nine shell casings from a 7.62 x 39 mm weapon at the
        quadruple murder scene. This caliber of ammunition is fired from
        AK–47 and AK–47 copy-type firearms. It was determined that
        they all had been fired from the same weapon. The police also
        found eighteen 7.62 x 39 mm casings near Dixon’s house, all of
        which had been fired from the same weapon. These, in turn,
        were fired from same weapon that fired the nine rounds found at
        the Polk Street residence. The police also found seven more 7.62
        x 39 mm cartridge casings, collected from Brandy’s residence.
        Those rounds were also fired by the same weapon that fired the
        7.62 x 39 mm rounds at the Polk residence.


        On January 26, 2004, Aaron was arrested, and Parks was
        arrested the next day. On the same day, Jones entered the police
        station and stated that some detectives from Gary were looking

Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 6 of 28
              for him. Jones was also placed under arrest. When Aaron was
              asked about the incident on Polk Street, he requested legal
              counsel, and the questioning ceased. Aaron later asked to talk
              with Detective Richardson, and he provided a formal written
              statement on January 28, 2004. Aaron implicated himself in the
              murders on two occasions and was initially charged with four
              counts of murder. Aaron subsequently entered into a plea
              agreement on May 6, 2004, which called for him to plead guilty
              to four counts of class A felony robbery. It was an open plea,
              pursuant to which Aaron would be sentenced within a range of
              twenty to fifty years for each count, to be served concurrently. As
              a term of the plea agreement, Aaron agreed to cooperate with the
              police.


      Jones v. State, No. 45A03-1111-CR-00496, 2012 WL 4048847 (Ind. Ct. App.

      Sept. 14, 2012), trans. denied.


[4]   The State charged Jones with four counts of felony murder. A jury trial

      commenced on May 17, 2004, at the conclusion of which the jury found Jones

      guilty as charged. The trial court subsequently sentenced Jones to four

      consecutive terms of sixty years, for a total executed term of 240 years.


[5]   On direct appeal, Jones claimed that the trial court erred in admitting hearsay

      evidence and challenged the legality and propriety of his sentence. We rejected

      Jones’s claims and affirmed his convictions and sentence in an unpublished

      memorandum decision. Jones v. State, No. 45A03-0407-CR-339 (Ind. Ct. App.

      June 30, 2005), trans. denied. Jones subsequently petitioned for post-conviction

      relief, claiming that his trial counsel was ineffective. We affirmed in another




      Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 7 of 28
      unpublished memorandum decision. Jones v. State, No. 45A03-0711-PC-511,

      2008 WL 2746486 (Ind. Ct. App. 2008), trans. denied.


[6]   Having exhausted his remedies at the state level, Jones turned to the federal

      courts for relief, filing a petition for a writ of habeas corpus in the United States

      District Court for the Northern District of Indiana. On September 24, 2009, the

      District Court entered a well-reasoned, but unpublished, opinion dismissing

      Jones’s habeas petition. Jones v. Finnan, No. 2:09-cv-052-RLY-WGH (N.D. Ind.

      Sept. 24, 2009). Jones appealed, arguing that the admission of certain hearsay

      evidence violated his rights under the Confrontation Clause. A panel of the

      United States Court of Appeals for the Seventh Circuit reversed, concluding

      that this court’s opinion was not simply incorrect, but amounted to an

      unreasonable application of clearly established federal law as determined by the

      United States Supreme Court. Jones v. Basinger, 635 F.3d 1030, 1044 (7th Cir.

      2011).1 The Seventh Circuit panel ordered the State to release Jones if he was

      not retried within 120 days of the Court’s mandate.


[7]   Jones was then retried on four counts of felony murder, and a jury found him

      guilty as charged. The trial court again sentenced Jones to four consecutive

      sixty-year terms of incarceration for a total of 240 years. Jones appealed again

      and argued: (1) that the trial court erred by permitting Lewis to testify about


      1
        Under the Antiterrorism and Effective Death Penalty Act of 1996, a petitioner seeking habeas corpus relief
      in a federal court must show, inter alia, that “his detention was the result of a state court decision (1) ‘contrary
      to, or involv[ing] an unreasonable application of, clearly established Federal law, as determined by the
      Supreme Court of the United States;’ or (2) ‘based on an unreasonable determination of the facts in light of
      the evidence presented in the State court proceeding.’” Jones, 635 F.3d at 1040 (quoting 28 U.S.C. § 2254(d)).


      Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017              Page 8 of 28
      statements that were made by James Parks, Lewis’s brother; (2) that the trial

      court erred in excluding evidence that Aaron implicated Jones in the killings as

      retaliation for Jones’s prior testimony in an unrelated federal case against

      Aaron’s friend; and (3) that the evidence was insufficient to support his

      convictions. We affirmed Jones’s convictions in another unpublished decision.

      See Jones v. State, No. 45A03-1111-CR-496, 2012 WL 4048847 (Ind. Ct. App.

      Sept. 14, 2012).

[8]   Jones then filed a pro se petition for post-conviction relief on November 10,

      2015, claiming that his trial counsel during his retrial was ineffective. The trial

      court held evidentiary hearings on Jones’s petition on December 11, 2014,

      February 17, 2015, April 13, 2015, and July 9, 2015. On October 21, 2016, the

      post-conviction court issued detailed findings of fact and conclusions of law

      denying Jones’s petition. Jones now appeals.


                           Post-Conviction Standard of Review
[9]   Post-conviction proceedings are not “super appeals” through which convicted

      persons can raise issues they failed to raise at trial or on direct appeal. McCary v.

      State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead

      afford petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

      (Ind. 2002). The post-conviction petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Henley v. State, 881

      N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of a petition for


      Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 9 of 28
       post-conviction relief, the petitioner stands in the position of one appealing

       from a negative judgment. Id. To prevail on appeal from the denial of post-

       conviction relief, 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. at 643–44.


[10]   The post-conviction court made specific findings of fact and conclusions of law

       in accordance with Indiana Post-Conviction Rule 1(6). On review, we must

       determine if the court’s findings are sufficient to support its judgment. Graham

       v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d

       962. Although we do not defer to the post-conviction court’s legal conclusions,

       we review the post-conviction court’s factual findings for clear error. Id.

       Accordingly, we will not reweigh the evidence or judge the credibility of

       witnesses, and we will consider only the probative evidence and reasonable

       inferences flowing therefrom that support the post-conviction court’s decision.

       Id.


                            Effective Assistance of Trial Counsel
[11]   Jones claims that his trial counsel was ineffective. Our supreme court has

       summarized the law regarding claims of ineffective assistance of trial counsel as

       follows:


               A defendant claiming a violation of the right to effective
               assistance of counsel must establish the two components set forth
               in Strickland v. Washington, 466 U.S. 668 (1984). First, the
               defendant must show that counsel’s performance was deficient.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 10 of 28
               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 defense. 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 have
               been different. A reasonable probability is a probability sufficient
               to undermine confidence in the outcome.

               Counsel is afforded considerable discretion in choosing strategy
               and tactics, and we will accord those decisions deference. A
               strong presumption arises that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. The Strickland Court
               recognized that even the finest, most experienced criminal
               defense attorneys may not agree on the ideal strategy or the most
               effective way to represent a client. Isolated mistakes, poor
               strategy, inexperience, and instances of bad judgment do not
               necessarily render representation ineffective. The two prongs of
               the Strickland test are separate and independent inquiries. Thus,
               if it is easier to dispose of an ineffectiveness claim on the ground
               of lack of sufficient prejudice . . . that course should be followed.


       Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations

       omitted).


[12]   Here, Jones claims that his trial counsel was ineffective because of his actions or

       inaction with regard to the testimony of three witnesses. We address each of

       these witnesses and their testimony in turn.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 11 of 28
                                  I. Janeth Alexander’s Testimony

       A. Testimony Concerning Jones’s Threats

[13]   Jones first claims that his trial counsel should have acted to prevent the jury

       from hearing the testimony of Janeth Alexander (“Ms. Alexander”) regarding a

       threat Jones allegedly made to her in 2004. During Jones’s second trial, the

       defense listed Ms. Alexander as a defense witness to support Jones’s alibi

       defense. The State, however, called Ms. Alexander during its case-in-chief.

       During direct examination by the State, Ms. Alexander testified that in 2004

       Jones called her at her place of employment. Jones testimony continued as

       follows:


               A.       He called -- Antonio called my job.
               Q.       And what did he say?
               A.       He had me thinking that he had got released.
               Q.       And do you recall what he said? Was this a good call,
                        baby, I am coming home? What was the nature of the call?
               A.       No, it was a scary call to me because I was scared of him.
               Q.       Okay. And do you remember what he said?
               A.       That he no. I believe he said he was going to kill me or get
                        me or something like that. But I know I left work.
               Q.       Okay.
               A.       Because I thought he was out.


       Trial Tr. p. 1671.


[14]   At this point, Jones’s trial counsel objected to this testimony based on a lack of

       specificity with regard to what Jones allegedly said and because the State had

       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 12 of 28
       not given him any notice that Ms. Alexander would testify regarding a threat

       made by Jones. The State responded that Ms. Alexander was listed as a defense

       witness and her testimony should have been no surprise to the defense. After

       hearing arguments on the matter outside the presence of the jury, the trial court

       ruled, “State[,] ask the question, do you recall specifically what he said to you?

       If the answer is no, that’s the end of the inquiry. If she says yes, then [it] may be

       a statement by a party opponent.” Id. at 1673. Jones’s counsel then requested

       that the trial court give “a limiting instruction that she [Ms. Alexander] is not

       sure and the jury should disregard it [her statement as to what Jones said to

       her].” Id. The trial court responded, “Well, let’s see what the next question is. I

       don’t know just yet. Ask to approach again after we get that answer if you think

       it is necessary.” Id at 1674.


[15]   The State then questioned Ms. Alexander as follows:


                Q.      Miss Alexander, the phone call that you’re talking about to
                        your job, do you remember specifically what was said?

                A.      He [Jones] said something that scared me. Like he was
                        going to --


       Id. at 1674. Jones’s trial counsel again objected, and the trial court sustained the

       objection. Ms. Alexander then testified that she was scared after speaking with

       Jones.


[16]   Jones acknowledges that his trial counsel did object to Ms. Alexander’s

       testimony regarding Jones’s threat to her over the telephone. But he claims that


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 13 of 28
       his trial counsel should also have requested an admonishment when the trial

       court sustained his objection. However, our review of the trial transcript

       indicates that Jones’s trial counsel did, in fact, request an admonishment.

       Jones’s trial counsel requested that the trial court give the jury a “limiting

       instruction” informing the jury to disregard that aspect of Ms. Alexander’s

       testimony. Id. at 1673. The trial court did not give the admonishment,2 but this

       cannot form the basis for a claim that Jones’s trial counsel was ineffective when

       he actually did what Jones claims he should have done.3


[17]   Moreover, it has long been held that evidence of threats made by the accused

       against a prosecution witness can be considered as admissions of guilt and

       therefore are relevant and admissible to demonstrate an accused’s guilty

       knowledge. Matthews v. State, 866 N.E.2d 821, 825 (Ind. Ct. App. 2007) (citing

       Johnson v. State, 472 N.E.2d 892, 910 (Ind. 1985)), trans. denied.4 Thus, Ms.



       2
         Jones claims that he was entitled to an admonishment, noting the use of mandatory language in Evidence
       Rule 105, which provides, “If the court admits evidence that is admissible against a party or for a purpose—
       but not against another party or for another purpose—the court, on timely request, must restrict the evidence
       to its proper scope and instruct the jury accordingly.” (emphasis added). But this rule is applicable when the
       evidence at issue is admissible for one purpose but not another. Here, however, Jones claims that the threat
       evidence was inadmissible for any purpose. Therefore, Evidence Rule 105 is inapplicable.
       3
         A considerable portion of Jones’s argument on this issue appears to be that the trial court erred in admitting
       Ms. Alexander’s threat testimony. But it appears that the trial court sustained Jones’s objection to Ms.
       Alexander’s threat testimony. Regardless, Jones cannot bring a free-standing claim of evidentiary error on
       post-conviction. See Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002) (in post-conviction proceedings,
       complaints that something went awry at trial are generally cognizable only when they show deprivation of
       the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal);
       Timberlake, 753 N.E.2d at 597 (if an issue is known and available on direct appeal but not raised on direct
       appeal, it is waived; and if an issue is raised on direct appeal, but decided adversely, it is res judicata).
       4
         Jones’s citation to Bassett v. State, 795 N.E.2d 1050 (Ind. 2003), is unavailing. In that case, our supreme
       court held that testimony regarding defendant’s prior acts of raping two other women and threatening to kill
       them if they reported the rapes was inadmissible under Indiana Evidence Rule 404(b). Id. at 1052–53. The
       court held that evidence of these crimes was improperly admitted to prove the defendant’s character to show


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017         Page 14 of 28
       Alexander’s testimony regarding what Jones told her over the telephone was

       admissible evidence, and any attempt by Jones’s trial counsel to request an

       admonishment could not have been properly granted. The same is true for

       Jones’s claim that his trial counsel was ineffective for failing to request a

       mistrial after Ms. Alexander relayed the threats made by Jones. Such evidence

       was admissible and there were no grounds for a mistrial. Jones’s claims of

       ineffective assistance of trial counsel for failing to move for a mistrial or request

       an admonishment are therefore without merit.


[18]   Jones also claims that his trial counsel was ineffective for failing to somehow

       exclude Ms. Alexander’s testimony regarding Jones’s threats on the grounds

       that her testimony constituted perjury. Because Ms. Alexander did not mention

       these threats in her 2004 deposition or her 2004 trial testimony, Jones claims

       that her mention of them in 2011 must be false. But the fact that Jones did not

       mention the threats in 2004 does not make her 2011 testimony false.

       Alexander’s 2011 testimony demonstrates, at most, that her earlier testimony

       was incomplete, not that her later testimony was false.


[19]   Given that there is no indication that Ms. Alexander’s testimony was false,

       much less knowingly false, as is required for false testimony to be perjury, we

       cannot fault Jones’s trial counsel for failing to attack or somehow exclude it for




       that he was more likely to have committed the crimes for which he was on trial. Id. at 1053. Here, the State
       did not introduce evidence that Jones had committed a prior crime and threatened the victim of this prior
       crime. There was merely a brief mention that Jones threatened Ms. Alexander, and such threats have been
       held admissible. Matthews, 866 N.E.2d at 825.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017        Page 15 of 28
       being perjury. We also therefore reject his claims that his trial counsel was

       ineffective for failing to request an admonishment and move for a mistrial based

       upon the alleged falsity of Ms. Alexander’s testimony.


[20]   Nor can we say that Jones’s trial counsel was ineffective for not attempting to

       impeach Ms. Alexander with her prior statements, in which she did not

       mention Jones’s threats. But the fact that she did not mention the threats in her

       prior statement is not necessarily inconsistent with her 2011 testimony. And

       Ms. Alexander was consistent in her testimony that she drove Jones to her

       house on the night of the shootings and that she heard him throw something

       out the car window, which splashed in the water beside the street. Counsel’s

       decision not to confront Ms. Alexander with her prior statements, which were

       consistent with regard to her interaction with Jones on the night of the

       shooting, did not constitute ineffective assistance.


       B. Testimony Regarding Jones’s Demeanor

[21]   Jones contends that his trial counsel was also ineffective for failing to attack or

       exclude Ms. Alexander’s testimony regarding Jones’s demeanor on the night of

       the murders when she drove him to her house in her vehicle. In the 2011 trial,

       Ms. Alexander testified as follows:


               Q.    Okay. So, he [Jones] gets in the car with you. What was
               his demeanor or how was he acting once he got in the car with
               you?
               A.       Quiet.
               Q.       Was that normal for hm?


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 16 of 28
               A.       No.


       Tr. pp. 1654–55.


[22]   In her 2004 deposition, Ms. Alexander testified:


               Q.       When you picked [Jones] up on the evening of January
                        16th, 2004, how was he acting?
               A.       His self.
               Q.       He was acting himself?
               A.       He was acting himself.
               Q.       And what is that like when you say “himself?”
               A.       He didn’t seem like anything was wrong.
               Q.       So he wasn’t nervous.
               A.       No.
               Q.       Scared?
               A.       No.
               Q.       He didn’t seem agitated --
               A.       No.
               Q.       -- or anything.
               A.       But the next morning, that Saturday, I fixed him breakfast,
                        he didn’t want to eat.


       PCR Exhibit Vol. 2, Petitioner’s Ex. 10, pp. 22–23.


[23]   Again, we cannot say that Jones’s trial counsel was ineffective for failing to

       attack this relatively minor inconsistency in Ms. Alexander’s testimony. And

       we reject Jones’s contention that this inconsistency necessarily means that Ms.

       Alexander’s testimony at the 2011 trial was false and constituted perjury.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 17 of 28
       Therefore, Jones’s counsel was not ineffective for failing to object to this

       testimony or request an admonishment or move for a mistrial based on this

       allegedly-false testimony.


[24]   Nor was Jones’s counsel ineffective for failing to attempt to impeach Ms.

       Alexander’s testimony regarding Jones’s demeanor. There was, at most, a

       relatively minor inconsistency in her testimony regarding Jones’s demeanor,

       and trial counsel’s choice not to attack her credibility on this issue could well

       have been a choice not to emphasize that her prior statements were, in relevant

       part, consistent over time. Moreover, we cannot say that there was a reasonable

       probability that, but for counsel’s decision not to impeach Ms. Alexander’s

       2011 testimony on the issue of Jones’s demeanor, the result of Jones’s trial

       would have been different.


[25]   Accordingly, we agree with the post-conviction court that Jones’s trial counsel

       was not ineffective with regard to his handling of Ms. Alexander’s testimony.


                                     II. Lenzo Aaron’s Testimony

[26]   Jones next argues that his trial counsel was ineffective for failing to object to or

       move for a mistrial based on portions of the testimony of Lenzo Aaron

       (“Aaron”). As explained above, Aaron participated in the robbery but denied

       shooting anyone, and later pleaded guilty and testified on behalf of the State as

       the key witness at both trials.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 18 of 28
       A. Inconsistency in Testimony Regarding Telephone Calls

[27]   In the second trial in 2011, Aaron testified that, on the night of the shootings,

       Jones had two telephone conversations: one with the victim McClendon and

       the other with an unknown woman. Aaron testified that he was present while

       Jones spoke with the woman on the telephone for approximately fifteen

       minutes. Aaron testified that he was not present when Jones spoke with

       McClendon and therefore did not know when that call took place.


[28]   Jones claims that this testimony is in conflict with a proffer statement Aaron

       gave prior to the first trial in 2004. In that statement, Jones claims, Aaron

       indicated that Jones had actually spoken to McClendon for fifteen minutes on

       the telephone, not the woman. Jones argues that his trial counsel was

       ineffective for failing to point out this inconsistency and object to it on the

       grounds that it was perjury. Jones’s claim fails for a variety of reasons.


[29]   First, Jones’s trial counsel did use this inconsistency in an attempt to impeach

       Aaron’s testimony. Jones’s trial counsel confronted Aaron with his 2004

       proffer, noting that it seemed to indicate that Jones was on the phone with a

       man for fifteen minutes, not a woman. See Trial Tr. pp. 1287–1293. Thus, the

       jury was well aware of this apparent inconsistency.


[30]   Second, although Jones claims that Aaron’s 2011 testimony was necessarily

       false, Jones points us to no authority that suggests that one may object to

       testimony on the grounds that it is false. Indeed, it is up to the jury to decide

       who is telling the truth. See Wallace v. State, 474 N.E.2d 1006, 1008 (Ind. 1985)


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 19 of 28
       (holding that State was under no duty to prevent testimony of witness who gave

       testimony contradicting another witness or force the witness to admit that he

       was lying, and that resolution of inconsistencies between witness’s deposition

       and trial testimony which were brought out on cross-examination were for the

       jury to resolve). The remedy for knowingly false testimony is a charge of

       perjury, not exclusion of the evidence.


[31]   Perhaps more importantly, it is not entirely clear that there was an actual

       inconsistency between Jones’s 2004 statement and his testimony in 2011. In his

       2004 proffer statement, Aaron was questioned as follows:


               Q.       At some point during this evening, while you guys were
                        playing cards, was there a discussion about someone
                        getting money?
               A.       At the card table?
               Q.       Right.
               A.       No.
               Q.       Did that happen at all that night?
               A.       Yes.
               Q.       Who was doing the talking?
               A.       Tone [i.e., Jones].
               Q.       What was he saying?
               A.       He said Dude called him to take him to get a dime piece,
                        he had all the money. And did we want to go rob him.
               Q.       Did you ever see Tone on the phone that night?
               A.       Yes.
               Q.       What kind of phone.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 20 of 28
        A.       A speakerphone. Nextel.
        Q.       It was a cell phone as opposed to a land line, is that
                 correct?
        A.       Yes.
        Q.       And did you ever hear him identify who he was talking to?
        A.       No.
        Q.       Did he ever identify to you who he was talking to?
        A.       No.
        Q.       How long would you say that conversation happened?
        A.       He was talking to him for about fifteen minutes.
        Q.       Were you in his presence when he was on the phone the
                 whole time?
        A.       Yes.
        Q.       What did he say to you when he got off the phone?
        A.       He didn’t say nothing to me.
        Q.       Where were you?
        A.       We was sitting, everyone in the house was laughing.
        Q.       Why were you guys laughing?
        A.       He was asking the girl if he could come over.
        Q.       And have sex with her?
        A.       Yeah.
        Q.       Okay. When did you find out about this conversation that
                 Dude was calling and talking of robbing -- of taking his
                 money came up?
        A.       After he was talking about how he was on the phone with
                 the girl and all that.


PCR Ex. Vol. 1, Petitioner’s Ex. 7, pp. 43–44 (emphases added).



Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 21 of 28
[32]   Jones claims that Aaron’s statement that Jones was “talking to him for about

       fifteen minutes,” necessarily means that Jones’s telephone conversation with

       McClendon lasted fifteen minutes, which contradicts Aaron’s testimony at the

       second trial that Jones’s conversation with the woman lasted fifteen minutes.

       However, immediately after stating that Jones was talking to “him” for fifteen

       minutes, Aaron stated that Jones was asking “the girl” if he could come over to

       her house to have sex. Thus, it is not clear if Aaron was referring to McClendon

       when he said Jones was on the phone with “him” for fifteen minutes, or if

       Aaron was referring to the woman and simply used the wrong pronoun, or if

       the transcriptionist misheard Aaron.5 Indeed, Aaron claimed at the second trial

       that the reference to “him” had to be a misprint. Trial Tr. pp. 1292–93.


[33]   Even if Jones is correct that Aaron’s 2004 statement indicated that Jones spoke

       with McClendon for fifteen minutes as opposed to the woman, we cannot say

       that Jones’s trial counsel was ineffective for failing to object to the State’s use of

       this testimony on the ground that it constituted perjury. Perjury is a crime

       defined as making a false, material statement under oath or affirmation,

       knowing the statement to be false or not believing it to be true, or knowingly

       making two or more material statements in a proceeding before a court or grand

       jury which are inconsistent to such a degree that one of them is necessarily


       5
         Indeed, “him” could well have been a mishearing of the pronoun “them” or “‘em,” often used as a gender-
       neutral pronoun. See The Chicago Manual of Style Online, § 5.48 “Singular ‘they,’” available at:
       http://www.chicagomanualofstyle.org/book/ed17/part2/ch05/psec048.html (“Normally, a singular
       antecedent requires a singular pronoun. But because he is no longer universally accepted as a generic pronoun
       referring to a person of unspecified gender, people commonly (in speech and in informal writing) substitute
       the third-person-plural pronouns they, them, their, and themselves (or the nonstandard singular themself)”).


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017      Page 22 of 28
       false. Ind. Code § 35-44.1-2-1(a). And it has long been held that that

       inconsistency alone is not enough to prove perjury. Daniels v. State, 658 N.E.2d

       121, 123 (Ind. Ct. App. 1995). Without any suggestion that Aaron’s statement

       was not only false but knowingly false, there was no basis for Jones’s trial

       counsel to allege that Aaron’s testimony was perjury.6


[34]   We also reject Jones’s claim that his trial counsel was ineffective for failing to

       impeach Aaron’s testimony with the alleged inconsistency regarding the

       telephone call. As noted above, Jones’s trial counsel did confront Aaron

       regarding this alleged inconsistency in an attempt to impeach him. See Trial Tr.

       pp. 1287–1293.


[35]   Still, Jones claims that his counsel should have attempted to (further) impeach

       Aaron with McClendon’s telephone records, which he claims shows that there

       was no call made by McClendon to Jones and that the conversation did not last

       fifteen minutes. But McClendon’s telephone records show that Jones made a

       call to McClendon, not the other way around, on the night of the murders at

       approximately 6:07 p.m. Jones had also telephoned McClendon three other

       times that day. The salient point was not who called whom, but the content of

       the call. Under these facts and circumstances, we cannot say that Jones’s trial

       counsel was ineffective for failing to attempt to impeach Aaron’s testimony

       further by referencing McClendon’s telephone records, which would have



       6
        In fact, another witness, Maurice Fuller, testified that Jones spoke with a woman on speakerphone the night
       of the murder. Tr. pp. 1158–59.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017     Page 23 of 28
       simply emphasized that Jones and McClendon had spoken several times that

       day.


       2. Inconsistency Regarding the Reason for the Robbery

[36]   Jones also faults his trial counsel for failing to prevent Aaron from testifying at

       the second trial with regard to the reason Jones gave the others for robbing

       McClendon. Jones claims that in the 2004 trial, Aaron testified that Jones told

       him that McClendon said he wanted Jones to get him “a 9 piece,”7 i.e., cocaine,

       and that McClendon “got six G’s on him,” i.e., $6,000. PCR Exhibit Vol. 1,

       Petitioner’s Ex. 8, p. 81.8 In other words, at the 2004 trial, Aaron testified that

       Jones informed him that McClendon had money and was looking for cocaine.

       According to Jones, Aaron testified to something different in the 2011 trial, i.e.,

       that Jones informed him of an opportunity to rob McClendon of both “drugs”

       and “money,” Appellant’s Br. at 34, which he claims is different than Aaron’s

       2004 testimony where he indicated that Jones stated that McClendon had

       money and was looking to buy drugs.


[37]   Aaron’s testimony at the 2011 trial was as follows:


               Q.       Did [Jones] indicate to you why he was saying, “did you
                        want to go rob this dude”?




       7
        In Aaron’s 2004 proffer statement, this was transcribed as a “dime piece” instead of a “nine piece.” PCR
       Exhibit Vol. 1, Petitioner’s Ex. 7, p. 42.
       8
        Similarly, in his 2004 proffer statement, Aaron stated that Jones said McClendon called him “to take him to
       get a dime piece, he had all the money.” Id.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017      Page 24 of 28
               A.       [Jones] just said he got six G’s on him and a 9-piece and he was
                        trying to --
               Q.       He said he had six G’s -- trying to buy a 9-piece?
               A.       Yes.

       Trial Tr. p. 1199 (emphasis added).


[38]   Jones argues that Aaron’s 2011 testimony was that Jones told Aaron that

       McClendon had “six G’s on him” and already had a “9-piece,” and that they

       went to rob McClendon of both. Jones contends that the State had to

       immediately “correct” Aaron’s testimony to make it more consistent with his

       2004 testimony by asking, “He said he had six G’s -- trying to buy a 9-piece.” Id.

       (emphasis added). But this is a rigid reading of Aaron’s 2011 testimony.


[39]   Aaron’s 2011 testimony was that Jones said McClendon “got six G’s on him

       and a 9-piece and he was trying to --” Id. We do not know what Aaron would

       have said if not interrupted by the prosecuting attorney. But when asked by the

       State if Jones said McClendon had “six G’s” and was “trying to buy a 9-piece,”

       Aaron responded, “Yes.” Tr. p. 1199. Thus, Aaron’s testimony did not actually

       conflict with his earlier 2004 testimony.

[40]   Moreover, we agree with the State that the salient point of Aaron’s testimony

       was that Jones told him McClendon had cash and asked if Aaron wanted to

       help him rob McClendon. This aspect of Aaron’s testimony was consistent

       between both trials. At the very least, Jones’s trial counsel was not ineffective




       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 25 of 28
       for failing to somehow exclude Arron’s testimony on this point for being false

       or perjury.


[41]   Nor was counsel ineffective for failing to attempt to impeach Aaron’s testimony

       with regard to the motive. Again, at most, there was a minor inconsistency in

       Aaron’s testimony between trials. And bringing up Aaron’s prior statement

       would have only emphasized that he had consistently testified that Jones told

       him that McClendon had a large amount of cash and asked for Aaron’s help in

       robbing McClendon.


[42]   In short, we are unable to say that the post-conviction court clearly erred when

       it determined that Jones’s trial counsel was not ineffective with regard to his

       handling of Aaron’s testimony.


                                   III. Maurice Fuller’s Testimony

[43]   Jones also contends that his trial counsel was ineffective for failing to impeach

       the testimony of Maurice Fuller (“Fuller”), who testified that he saw Jones with

       a handgun on the night of the murders. Fuller testified at the 2011 trial that

       Jones lifted up his shirt and showed him the butt of a black 9 mm or .45 caliber

       handgun tucked into his waistband. Trial Tr. pp. 1159–60.


[44]   Jones contends that his trial counsel was ineffective because he did not attempt

       to impeach Fuller’s testimony by confronting him with his statement to the

       police in 2004. In his police statement, Fuller stated that he saw in a newspaper

       that a .45 caliber weapon had been used in the murders. He gave another police



       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 26 of 28
       statement the same day stating that James Parks had someone purchase an AK-

       47 style rifle but failed to mention that he saw Jones with a handgun. Jones

       claims that his trial counsel was ineffective because he did not impeach Fuller

       with this prior “inconsistent” statement. We disagree.


[45]   Fuller’s statements were not inconsistent. The failure to mention Jones’s gun to

       the police is not the same as stating that Jones did not have a weapon.

       Moreover, in Fuller’s other statement to the police that same day, Fuller clearly

       stated that he had seen Jones with a gun at the card game the night of the

       murders. See PCR Exhibits Vol. 2, Petitioner’s Ex. 14, p. 53 (“While at the

       party I was in the kitchen along with Tone [i.e., Jones] and two other people

       that I don’t recall, but we were joking around when Tone pulled up his shirt

       and showed a gun stuck in his waist in the front . . . . I remember that so well

       because it was the first time I had ever seen Tone with a gun.”). Thus, there was

       no inconsistency to impeach Fuller with.


[46]   To the extent that Jones’s argument is that Fuller never mentioned a .45 caliber

       weapon until after he read the newspaper referring to this caliber, we again

       cannot say that his trial counsel was ineffective for failing to attack Fuller’s

       testimony on this point.


[47]   Fuller stated to the police that the weapon he saw “looked like a .45 to me,

       that’s what I think it was, and I heard on the news that a .45 was used.” PCR

       Exhibit Vol. 2, Petitioner’s Ex. 14, p. 56. Jones’s trial counsel testified at the

       post-conviction hearing that he did not think that impeaching Fuller with his


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 27 of 28
       prior statement would have been helpful because it would have only stressed to

       the jury that he saw Jones with a weapon. This strategic decision did not fall

       below an objective standard of reasonableness. Accordingly, the post-conviction

       court did not err in concluding that Jones’s trial counsel was not ineffective for

       failing to confront Fuller with the minor differences between his testimony in

       Jones’s first trial in 2004 and his second trial in 2011.


                                                 Conclusion
[48]   Jones has failed to carry his heavy burden upon appeal of showing that the post-

       conviction court clearly erred in determining that he was not denied the

       effective assistance of trial counsel.


[49]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-PC-2565 | September 28, 2017   Page 28 of 28
