MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     May 01 2019, 5:23 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jonathan D. Harwell                                      Curtis T. Hill, Jr.
Harwell Legal Counsel LLC                                Attorney General of Indiana
Indianapolis, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jerry Emerson,                                           May 1, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PC-1687
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Steven J. Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G01-0805-PC-107649



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019            Page 1 of 16
                                       Statement of the Case
[1]   Jerry Emerson appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Emerson presents several issues for our review, which we

      consolidate and restate as one issue, namely, whether the post-conviction court

      erred when it concluded that he was not denied the effective assistance of trial

      counsel. We affirm.


                                 Facts and Procedural History
[2]   On direct appeal, this Court set out the facts and procedural history as follows:


              On July 30, 2007, Emerson and Samuel “Buddha” Fancher were
              driving in an Indianapolis neighborhood and spotted seventeen-
              year-old Leroy Moorman and sixteen-year-old Ryan Sampson.
              Emerson and Fancher recognized the teenagers as people who
              had previously broken into their house. The two men forced
              Moorman and Sampson into their car at gunpoint and drove
              them to a vacant residence. Once there, they took Moorman and
              Sampson to a bathroom and shot them. Sampson was shot
              multiple times, including in the head, and died at the scene.
              Moorman was shot in both arms and lay on the floor with his
              eyes closed until Emerson and Fancher left. He then went to a
              nearby residence for help. Moorman survived the shooting.

              Later, Emerson told Curtis Williams about the shooting.
              Williams testified at trial that Emerson described the shooting as
              follows:

                      As soon as I got to the mother f***ing house, I shot
                      that mother f***er dead in the head. This little b****
                      [Fancher] was gonna do the same d*** thing, but he
                      wanna give mother f***ers body shots. I told him


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019   Page 2 of 16
                      that body shots don’t work, and [Fancher] said, he
                      thought he was dead, too.

              Tr. p. 206-07. After Williams subsequently learned that he was
              distantly related to Sampson, he told an uncle and later the police
              what he knew.

              The State charged Emerson with murder, attempted murder,
              Class B felony criminal confinement, and Class A misdemeanor
              carrying a handgun without a license. The case proceeded to a
              jury trial. At the conclusion of trial, Emerson was convicted as
              charged.


      Emerson v. State, No. 49A02-0809-CR-848, 2009 WL 1974552, at *1 (Ind. Ct.

      App. July 9, 2009) (footnotes omitted), trans. denied. We affirmed Emerson’s

      convictions on direct appeal. Id. at *10.


[3]   On June 4, 2010, Emerson filed a pro se petition for post-conviction relief, and

      on February 15, 2017, he filed a petition for post-conviction relief by counsel.

      Following a hearing, the post-conviction court denied his petition. This appeal

      ensued.


                                     Discussion and Decision
[4]   Emerson appeals the post-conviction court’s denial of his petition for post-

      conviction relief. As our Supreme Court has stated:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
              “When appealing the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019   Page 3 of 16
              judgment.” Id. at 274. In order to prevail on an appeal from the
              denial of post-conviction relief, a petitioner must show that the
              evidence leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case entered findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[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.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (internal quotation omitted).


      Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).


[5]   In particular, Emerson alleges that the post-conviction court erred when it

      determined that he was not denied the effective assistance of counsel.


              When evaluating an ineffective assistance of counsel claim, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984). See Helton v.
              State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
              prong, “the defendant must show deficient performance:
              representation that fell below an objective standard of
              reasonableness, committing errors so serious that the defendant
              did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
              McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
              Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
              second prong, “the defendant must show prejudice: a reasonable
              probability (i.e. a probability sufficient to undermine confidence
              in the outcome) that, but for counsel’s errors, the result of the
              proceeding would have been different.” Id. (citing Strickland, 466
              U.S. at 694, 104 S. Ct. 2052).


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019   Page 4 of 16
      Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014). The “[f]ailure to satisfy either

      prong will cause the claim to fail.” French v. State, 778 N.E.2d 816, 824 (Ind.

      2002).


[6]   Emerson contends that his trial counsel was ineffective when she did not object

      to: testimony about a witness’ reluctance to testify; three instances of alleged

      prosecutorial misconduct; one instance of alleged hearsay; and an allegedly

      erroneous jury instruction. Emerson also contends that his counsel was

      ineffective when she did not move to suppress certain evidence. 1 We address

      each contention in turn.


                                       Witness’ Reluctance to Testify

[7]   Emerson asserts that his trial counsel’s performance was deficient when she did

      not object to testimony and closing argument referring to Leroy Moorman’s

      reluctance to testify because of fear or intimidation. Emerson correctly points

      out that “testimony about threats made against a witness is admissible only

      where a proper foundation has been laid showing the threats were made either

      by the defendant or with the defendant’s knowledge or authorization.” Smith v.

      State, 765 N.E.2d 578, 587 (Ind. 2002).




      1
        We reject the State’s contention that several of Emerson’s arguments are barred by res judicata. While on
      direct appeal Emerson raised substantive issues related to some of his claims of ineffective assistance of
      counsel, we addressed those contentions under a fundamental error analysis, which is a different analysis
      than that presented under the ineffective assistance of counsel claims in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019                      Page 5 of 16
[8]   In Smith, defendant’s counsel made no objections when two witnesses testified

      that “they feared they might be harmed if they testified,” but they had not been

      threatened. Id. And the Supreme Court stated that, “[w]ithout a showing tying

      these fears to [the defendant], its admission is error—for the same reason other

      unspecified threats are improper.” Id. However, our Supreme Court held that

      “the errant admission of testimony of unspecified concerns of witnesses [did

      not] rise to the level of defective performance necessary to support a claim of

      ineffective assistance of counsel under Strickland.” Id. at 588.


[9]   Here, Detective Tom Tudor testified that Moorman appeared to be “very

      reluctant” to testify at Emerson’s trial and seemed “intimidated” or “just

      scared.” Trial Tr. at 409. And, during closing argument, the prosecutor stated

      that Moorman was “the least reliable” witness because he was “petrified” and

      had tried to avoid testifying. Id. at 515. But neither Detective Tudor nor the

      prosecutor remarked on the source of Moorman’s fear, and his fear was not

      described with any specificity. Following our Supreme Court’s reasoning in

      Smith, given the “unspecified” 2 nature of Moorman’s fears, we cannot say that

      trial counsel’s failure to object rose to the level of deficient performance under

      Strickland. Smith, 765 N.E.2d at 588.




      2
        As we stated in Emerson I, “the testimony regarding Moorman’s reluctance to testify was vague and did not
      necessarily implicate that Moorman was afraid of the defendant.” 2009 WL 1974552, at *10.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019                    Page 6 of 16
                                          Prosecutorial Misconduct

[10]   Emerson contends that his trial counsel’s performance was deficient and/or

       prejudiced him when she did not object to three instances of alleged

       prosecutorial misconduct: when the prosecutor elicited testimony about a prior

       trial date that was rescheduled when Moorman failed to appear; testimony

       referencing Emerson’s exercise of his right to a speedy trial; and the

       prosecutor’s reference to Emerson’s failure to testify. We address each

       contention in turn.


                                                Prior Trial Date

[11]   Emerson first asserts that “[t]he jury became privy to the fact this was

       Emerson’s second trial attempt,” which “left the jury with improper

       information.” Appellant’s Br. at 15-16. In support of that assertion, Emerson

       cites to one page of the trial transcript, where the State questioned Moorman

       about his failure to show up to testify at trial two weeks prior. Emerson does

       not explain why that question was “improper,” and he does not cite any

       relevant case law to support his contention. Emerson has not demonstrated

       that his counsel’s performance was deficient when she did not object to that

       question of Moorman.


                                                  Speedy Trial

[12]   As for the State’s reference to Emerson’s exercise of his right to a speedy trial,

       during the State’s direct examination of Detective Tudor, Detective Tudor




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019   Page 7 of 16
       testified that neither Emerson nor Fancher had left any traces of their DNA at

       the crime scene. And the following colloquy immediately ensued:


               Q: Now you are aware, are you not, detective, that the
               defendant in this case asked for a speedy trial?

               A: Yes, I’m aware.

               Q: And does that limit the time that the State has to bring
               somebody to trial?

               A: It certainly can.

               Q: And with your knowledge of the Crime Lab and the backlog
               of DNA, is there sufficient time, or was there sufficient time
               between now and then to get results back if we even had
               anything to look at?

               A: Probably not.


       Trial Tr. at 430. Emerson asserts that the testimony was improper because it

       constituted “impermissible burden shifting” and it was “an invitation for the

       jury to draw an adverse inference from the accused’s exercise of his

       constitutional rights.” Appellant’s Br. at 15-16 (citing Moore v. State, 669

       N.E.2d 733, 738 (Ind. 1996)).


[13]   In Emerson I, we concluded that “the jury was not left with an inference that

       Emerson’s speedy trial request thwarted the State’s efforts to conduct DNA

       testing.” 2009 WL 1974552, at *5 (emphasis original). Accordingly, we

       rejected Emerson’s fundamental error argument on this issue because “[a]ny

       error created by the State’s mention of Emerson’s exercise of his speedy trial
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019   Page 8 of 16
       right did not create a substantial potential for harm.” Id. Likewise, here,

       Emerson has not persuaded us that but for his counsel’s failure to object to this

       passing reference to his speedy trial request the outcome of his trial would have

       been different. Without any showing of prejudice, Emerson’s claim on this

       issue fails.


                                               Failure to Testify

[14]   Emerson contends that the following remarks made during closing argument by

       the State were improper:


               We’re not asking you to believe [Williams], we’re asking you to
               believe [Emerson]. He’s the one that told you what happened.
               He told you through [Williams], and [Williams] knows things he
               could not have known. . . . We’re not asking you to believe
               Curtis Williams. Believe [Emerson]. He’s the one that told you
               what happened through Curtis Williams.


       Trial Tr. at 518. Emerson maintains that, with those closing remarks, the State

       invited the jury “to draw an adverse inference” from his failure to testify, which

       is prohibited. Appellant’s Br. at 17. But, had Emerson’s trial counsel objected

       to the closing remarks on that ground, the objection would not have been

       sustained. As we stated in Emerson I, “the State’s comment was merely an

       argument explaining to the jury why it should credit Williams’s testimony,”

       which “was a proper comment upon the credibility of a witness and did not

       constitute prosecutorial misconduct.” 2009 WL 1974552, at *6. Accordingly,

       Emerson’s trial counsel’s performance was not deficient when she did not

       object to the challenged remarks.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019   Page 9 of 16
                                                     Hearsay

[15]   Emerson contends that his counsel’s performance was deficient when she did

       not object to alleged hearsay testimony during the State’s direct examination of

       Detective Tudor. In particular, Emerson maintains that Detective Tudor’s

       testimony regarding Moorman’s identification of Emerson and Fancher as the

       two men “in the bathroom” at the time of the shooting constituted

       impermissible hearsay to which his counsel should have objected. Trial Tr. at

       107. We cannot agree.


[16]   Indiana Evidence Rule 801(d)(1)(C) provides that out-of-court statements are

       not hearsay when the “declarant testifies at the trial . . . and is subject to cross-

       examination concerning the statement, and the statement is . . . one of

       identification of a person made shortly after perceiving the person.” “The term

       ‘shortly’ is relative, not precise; the purpose of the rule is to assure reliability.”

       Davis v. State, 13 N.E.3d 939, 945 (Ind. Ct. App. 2014) (quoting Dickens v. State,

       754 N.E.2d 1, 6 n.6 (Ind. 2001)), trans. denied. Here, because Detective Tudor

       testified concerning Moorman’s identification of Emerson and Fancher one day

       after the shootings, and because Moorman testified at trial and was subject to

       cross-examination concerning that identification, the challenged testimony was

       not hearsay. Evid. R. 801(d)(1)(C). Emerson cannot show that his trial

       counsel’s performance was deficient when she made no objection.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019   Page 10 of 16
                                                Jury Instruction

[17]   Emerson contends that his counsel’s performance was deficient when she did

       not object to the trial court’s jury instructions for attempted murder under an

       accomplice liability theory. 3 Emerson asserts that a proper attempted murder

       jury instruction sets forth the following elements: that the defendant; with the

       specific intent to kill the victim; “engaged in conduct which was a substantial

       step toward such killing.” Appellant’s Br. at 22 (citing Spradlin v. State, 569

       N.E.2d 948, 950 (Ind. 1991)). And Emerson asserts that, where, as here, the

       State charges a defendant with attempted murder under an accomplice liability

       theory, “the State must prove that both the accomplice and the defendant had

       the specific intent to kill and took a substantial step towards the commission of

       murder and the jury must be instructed so.” Id. (emphases omitted; citing

       Hopkins v. State, 759 N.E.2d 633, 637-38 (Ind. 2001)). On appeal, Emerson

       maintains that “[n]one of the provided jury instructions correctly informed the

       jury of this” and his counsel’s performance was deficient when she “failed to

       object to the instructions or to tender her own correct attempted murder

       instruction.” Id. We cannot agree.


[18]   The trial court instructed the jury on attempted murder, in relevant part:


               The crime of Attempt Murder is defined as follows:




       3
         The State charged Emerson with Sampson’s murder, but it charged Emerson as an accomplice in the
       attempted murder of Moorman.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019               Page 11 of 16
        “A person who knowingly or intentionally kills another human
        being, commits Murder, a Felony.

        A person attempts to commit Murder when, acting with the
        culpability required for commission of the Murder, he engages in
        conduct that constitutes a substantial step toward commission of
        the Murder. The crime of Attempt Murder is a Class A Felony.”
        To convict the defendant of Attempt[ed] Murder, the State must
        have proved each of the following elements:

        That the defendant Jerry Emerson, on or about July 30, 2007,

        1. did attempt to commit the crime of Murder,

        2. which is to intentionally kill another human being, namely:
        Leroy Moorman, by engaging in conduct, that is: shooting a deadly
        weapon, that is: a handgun, at and against the person of Leroy
        Moorman,

        3. with the specific intent to kill Leroy Moorman, resulting in serious
        bodily injury, that is: two (2) gunshot wounds,

        4. which conduct constituted a substantial step toward the
        commission of said crime of Murder.


Appellant’s App. p. 21-22 (emphases added). The trial court instructed the jury

regarding accomplice liability as follows:


        A person who knowingly or intentionally aids another person in
        committing or induces another person to commit or causes
        another person to commit a crime, is guilty of the crime, even
        though he does not personally participate in each act constituting
        the crime.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019       Page 12 of 16
               A person may be convicted of a crime by aiding, inducing, or
               causing another to commit a crime even if the other person:

               1. has not been prosecuted for the offense

               2. has not been convicted of the offense; or

               3. has been acquitted of the offense[.]

               In order to commit a crime by aiding, inducing or causing
               another to commit a crime, a person must have knowledge that
               he is aiding, inducing or causing the commission of the crime.
               To be guilty, one does not have to personally participate in the
               crime nor does he have to be present when the crime is
               committed. Merely being present at the scene of the crime is not
               sufficient to prove that he aided, induced or caused the crime.
               Failure to oppose the commission of the crime is also insufficient
               to prove aiding, inducing or causing another to commit the
               crime. But presence at the scene of the crime and or failure to
               oppose the crime’s commission are factors which may be
               considered in determining whether there was aiding, inducing or
               causing another to commit the crime.


       Id. at 24.


[19]   Emerson’s contention that the jury instructions “did not contain the specific

       intent wording” is unavailing. Appellant’s Br. at 24. To the contrary, the

       instructions properly state that the State had the burden to prove that Emerson

       attempted to murder Moorman, with the specific intent to kill him, and that he

       took a substantial step toward killing Moorman when he shot him. While

       Emerson correctly points out that the attempted murder instruction initially

       improperly defined murder as “knowingly or intentionally killing” another


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019   Page 13 of 16
       person, his ineffective assistance of counsel claim in this appeal does not rest on

       that error. And, in any event, as we observed in Emerson I, “[t]he instructions

       presented to the jury, taken as a whole, sufficiently informed the jury that, in

       order to convict Emerson of attempted murder, it had to find that he acted with

       the specific intent to kill Moorman.” 2009 WL 1974552, at *3. Emerson has

       not shown that he was denied the effective assistance of counsel on this issue.

       See Lee v. State, 91 N.E.3d 978, 986 (Ind. Ct. App. 2017) (holding no Spradlin

       error because instructions as a whole set out the proper mens rea), trans. denied.


                                              Motion to Suppress

[20]   Finally, Emerson contends that his trial counsel’s performance was deficient

       because she did not move to suppress evidence presented by the State “of an

       impermissible show-up identification with the family of Ryan Sampson.”

       Appellant’s Br. at 20. In particular, Emerson avers that the State showed “the

       family members one (1) car matching the description of [the car involved in the

       kidnapping of] Ryan Sampson” before his murder, and he maintains that it was

       inadmissible because it “was inherently a tainted identification.” Id.


[21]   Due process of law under the Fourteenth Amendment requires suppression of

       testimony concerning a pre-trial identification when the procedure employed is

       impermissibly suggestive. Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999).

       Such procedures are known as “show-up identifications.” The admissibility of

       a show-up identification turns on an evaluation of the totality of the

       circumstances and whether they lead to the conclusion that the confrontation

       was conducted in a manner that could guide a witness into making a mistaken
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019   Page 14 of 16
       identification. Gordon v. State, 981 N.E.2d 1215, 1218 (Ind. Ct. App. 2013).

       Our courts consider the following factors in evaluating the admissibility of a

       show-up identification:


               (1) the opportunity of the witness to view the criminal at the time
               of the crime,

               (2) the length of initial observation of the criminal,

               (3) lighting conditions,

               (4) distance between the witness and the criminal,

               (5) the witness’s degree of attention,

               (6) the accuracy of the witness’s prior description of the criminal,

               (7) the level of certainty demonstrated by the witness, and

               (8) any identifications of another person.


       Id.


[22]   Emerson’s contention on this issue fails for two reasons. First, Emerson cites to

       a single page of the trial transcript, and nothing on that page indicates that

       officers employed an impermissibly suggestive procedure when they asked

       Moorman’s brother to identify the car used in the kidnapping. Second,

       Emerson does not direct us to any authority to support his assertion that a

       “show-up identification” of a car, as opposed to a defendant, is inadmissible.

       We cannot say that Emerson’s trial counsel’s performance was deficient when

       she did not move to suppress this evidence.
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019   Page 15 of 16
[23]   In sum, Emerson has not demonstrated that he was denied the effective

       assistance of his trial counsel. The post-conviction court did not err when it

       denied his petition for post-conviction relief.


[24]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019   Page 16 of 16
