MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Mar 21 2018, 9:01 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Jeffrey R. Wright                                        George P. Sherman
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Corey L. Walton,                                         March 21, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         45A03-1709-PC-2111
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Natalie Bokota,
Appellee-Respondent                                      Magistrate
                                                         The Honorable Diane Ross
                                                         Boswell, Judge
                                                         Trial Court Cause No.
                                                         45G03-1606-PC-0004



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018         Page 1 of 11
                                          Case Summary
[1]   Corey Walton appeals the denial of his petition for post-conviction relief

      challenging his convictions for attempted murder and attempted robbery.

      Finding no error, we affirm.



                            Facts and Procedural History
[2]   One afternoon in July 2012, Henry Walker was at a park in Hammond when a

      man he didn’t know approached him, pointed a gun at him, and demanded that

      he hand over everything he had. After a short struggle, the man shot Walker

      twice in the midsection and then fled. In a photographic lineup, Walker

      identified Walton as the shooter. The State charged Walton with attempted

      murder, attempted robbery, and battery.


[3]   While Walton was in jail awaiting trial, two of his friends went to the jail and

      spoke with him using the jail’s videoconferencing system. Walton said, “I need

      you to do something for me” regarding “this f*** nig** who on my sh**.”

      State’s Trial Ex. 10 (file 17198501, starting at 12:04). He then held a document

      with Walker’s name and address up to the camera. He continued:


              If this nig** show on a G, Cous’, I go to trial, if I get found
              guilty, it’s over with my nig**. They tryin’ to hit me with like
              thirty, forty years. Cuz you know, I got attempt. Know what
              I’m sayin’? So, uh, I wanted you to go, know what I’m sayin’,
              go see what’s good and sh** man. I’m just gonna give you this
              little address and sh**. Go holler, know what I’m sayin’? . . . I
              mean G, cuz if these nig**s show it’s over with, Cous’.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018   Page 2 of 11
      Id. Walton stated the street address and described its general location before

      adding:


                 If the nig** don’t show [inaudible] they gonna drop my case cuz
                 they don’t got, they never caught me with sh**, no burner,[1]
                 nothing. Know what I’m sayin’? Those nig**s don’t got sh** on
                 me. They just got this, they just got nig**s telling on me.
                 [Inaudible] and some f*** a** nig**, know what I’m sayin’?
                 Hey, you blow in his ear.


      Id. 2


[4]   At trial, Walker was the State’s main witness, and when asked if the shooter

      was in the courtroom, he identified Walton. In addition, the State moved to

      have the video of the jail visit admitted into evidence. Walton’s attorney

      objected on the ground that the video is “so absolutely inflammatory and that

      it’s misunderstood, can be, and will likely be misunderstood. He says go holler.

      He’s not saying go kill him. He’s saying go holler at this guy.” Trial Tr. p. 61.

      She added, “And my client’s position is basically that why is this guy saying

      this, that I did this when it wasn’t me.” Id. The trial court overruled the

      objection and allowed the video to be played for the jury, finding it to be

      “relevant and probative.” Id. at 62.




      1
          “Burner” is slang for gun. See Trial Tr. p. 178.
      2
       This is our transcription of the jail video. The State included a similar transcription in its brief, and Walton
      does not dispute its accuracy.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018                Page 3 of 11
[5]   After all evidence was presented, the trial court gave each side ten minutes for

      closing argument. The prosecutor argued, among other things, that the video of

      the jail visit corroborated Walker’s identification of Walton:


              [Y]ou have further information to corroborate that Mr. Walton is
              the perpetrator of this crime. You have a video that was played
              for you, and the video says certain things. You heard it and you
              saw Mr. Walton in that video. You saw Mr. Walton saying that
              it was the -- and I’m not going to use the term that he used, but it
              was the black guy. You heard Mr. Walton say that -- and hold
              up a piece of paper saying that he lived at an address on
              Nebraska Street. You heard the victim testify that he lived at an
              address on Nebraska Street. You heard Mr. Walton testify -- or
              not testify but say in the video that they never found a burner on
              him.


              You heard the defendant say in that video that they never found
              a burner, and you learned what the term burner meant on the
              streets. It means a gun. You heard the defendant say that he
              lives near that park. Well, you know that this crime occurred in
              a park. You have everything that you need to reach a verdict of
              guilty on each and every count in this case, and that’s what I’m
              asking you to do. Thank you.


      Id. at 220-21.


[6]   In her argument, Walton’s attorney focused on the absence of various State

      witnesses, whether Walker was credible, and whether the photographic lineup

      was reliable. Regarding the jail video, she argued that the case “doesn’t boil

      down” to “you saw a nasty video so it must have been him.” Id. at 225. She

      added that the issue is not whether the jury “like[d] the defendant” but whether


      Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018   Page 4 of 11
the State had proven its case. Id. at 227. However, her time ran before she

addressed the video any further, resulting in the following exchange:


        COURT: Time, [counsel].


        DEFENSE COUNSEL: I’m sorry?


        COURT: Time. Ten minutes up.


        DEFENSE COUNSEL: I mean, up-up?


        COURT: You can summary [sic].


        DEFENSE COUNSEL: One quick? Thank you. The video, my
        client’s an idiot. My client’s an idiot. I’m not standing here
        telling you he’s not a fool --


        COURT: [Counsel], that’s not a summary.


        DEFENSE COUNSEL: I’m sorry?


        COURT: That’s not the -- that’s not summing it up.


        DEFENSE COUNSEL: Oh.


        COURT: You’re over time. Go ahead. Go ahead.


        DEFENSE COUNSEL: Ladies and gentlemen, the bottom line,
        and I apologize, the burden has not been met and you should
        therefore find my client not guilty of all charges. Thank you.



Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018   Page 5 of 11
              COURT: Thank you, [counsel].


      Id. at 228.


[7]   The jury found Walton guilty as charged. The trial court merged the battery

      count into the attempted-murder count and sentenced Walton to concurrent

      terms of thirty-five years for attempted murder and attempted robbery. Walton

      appealed his convictions, and we affirmed. Walton v. State, No. 45A03-1409-

      CR-320 (Ind. Ct. App. Apr. 24, 2015), trans. denied.


[8]   In June 2016, Walton filed a petition for post-conviction relief. He initially

      included a number of claims but eventually withdrew all of them except one:

      that his trial attorney provided ineffective assistance by calling him “an idiot

      and a fool,” tying this statement to “a video clip which the State had argued

      corroborated the victim’s identification testimony,” and “offering no contrary

      interpretation of the video clip th[a]n that advanced by the State of Indiana.”

      Appellant’s App. Vol. II p. 76. At the evidentiary hearing on the petition,

      Walton’s trial attorney testified as follows about her strategy with regard to the

      jail video:


              My strategy for dealing with that, it was going to be a difficult
              task -- I remember that -- given what appeared on the video. I
              was basically going to say my client didn’t have the sense to
              realize how what he was doing and saying on that video would
              appear to an outside person. I was just going to go with the
              strategy that what he was attempting to do was being
              misunderstood, that he had other intentions by what he was
              doing and saying in that video.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018   Page 6 of 11
                                            *       *        *       *


               He may be a dummy for doing this, but he meant no harm was
               what my strategy was going to be, in terms of how I was going to
               speak to the jury.


       PCR Tr. pp. 21-23. When asked specifically why she referred to Walton as an

       “idiot” and a “fool,” she explained, “I have to be honest, I have prevailed in the

       past by not trying to mislead a jury, by being frank with the jury. And my

       client, for doing what he did, how he did it, and presenting that impression, was

       idiotic and foolish.” Id. at 37.


[9]    After the hearing, the post-conviction court denied Walton’s petition,

       concluding that calling Walton an idiot and a fool was part of a “reasonable

       trial strategy”—to “confront” the jail video, to be “frank” with the jury, and “to

       gain the juror’s trust in her argument and to make the point that the defendant’s

       video statements, while foolish, did not make him guilty of the underlying

       charges.” Appellant’s App. Vol. II pp. 119-20. The court also concluded that,

       even if the performance of Walton’s attorney in this respect could be considered

       deficient, the evidence against Walton was “overwhelming,” so there is not a

       reasonable probability that a better closing argument would have led to a

       different result. Id. at 120.


[10]   Walton now appeals.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018   Page 7 of 11
                                  Discussion and Decision
[11]   A person who files a petition for post-conviction relief has the burden of

       establishing the grounds for relief by a preponderance of the evidence. Hollowell

       v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies

       relief, and the petitioner appeals, the petitioner must show that the evidence

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

       post-conviction court. Id. at 269.


[12]   Walton contends that the post-conviction court should have granted him relief

       on the basis that his trial attorney rendered ineffective assistance. When

       evaluating such a claim, Indiana courts apply the two-part test set forth in

       Strickland v. Washington, 466 U.S. 668 (1984): whether counsel performed

       deficiently and whether that deficient performance prejudiced the defendant.

       Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017). An attorney’s performance

       is deficient if it falls below an objective standard of reasonableness—if the

       attorney committed errors so serious that it cannot be said that the defendant

       had “counsel” as guaranteed by the Sixth Amendment. Id. A defendant has

       been prejudiced if there is a reasonable probability that the case would have

       turned out differently but for counsel’s errors. Id.


[13]   Regarding the deficient-performance prong, Walton argues that his trial

       attorney botched what we will call the “my client is an idiot but that doesn’t

       make him a criminal” strategy with regard to the jail video. Specifically,

       Walton contends that his attorney executed part one of the strategy—calling


       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018   Page 8 of 11
       him “an idiot” and “a fool” for saying the things he said on the video, but then

       failed to execute part two—explaining why Walton’s statements, while

       seemingly incriminating, do not make him guilty of the crimes charged.

       Walton acknowledges the trial court’s role in cutting off the argument, but he

       asserts that his attorney could have finished part two if she had done one or

       more of the following: (1) moved more quickly throughout her entire closing

       argument; (2) asked the court for more time to finish the argument; or (3)

       continued with the argument after the court said “Go ahead. Go ahead.” The

       State, on the other hand, argues that considering the defense argument as a

       whole, “it would have been apparent to the jury that trial counsel was stating

       that Walton was foolish for making the statements on the video but that those

       statements did not establish that Walton was the person that shot Walker.”

       Appellee’s Br. p. 10.


[14]   While the manner in which Walton’s attorney ended her argument certainly

       wasn’t ideal, we are hesitant to say that her handling of the jail video amounted

       to deficient performance. Before things unraveled as time expired, Walton’s

       attorney was able to convey to the jury the idea that the case “doesn’t boil

       down” to the jail video, “nasty” though it was. She also reminded the jury that

       the issue was whether the State had proven its case, not whether the jury

       “like[d] the defendant.” It would have been nice if she had wrapped up the

       argument at the end; that said, we’re inclined to agree with the State that her

       ultimate message—“my client is an idiot but that doesn’t make him a

       criminal”—was apparent to the jury.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018   Page 9 of 11
[15]   In any event, Walton has failed to convince us that there is a reasonable

       probability that a different closing argument would have led to a different result,

       and that alone is enough for us to affirm the denial of post-conviction relief. See

       Baer v. State, 942 N.E.2d 80, 91 (Ind. 2011) (“If we can easily dismiss an

       ineffective assistance claim based upon the prejudice prong, we may do so

       without addressing whether counsel’s performance was deficient.”), reh’g denied.

       Walton does not deny that the video looks very bad for him. Nonetheless, he

       insists that the verdict might have been different if his attorney had presented a

       contrary “interpretation” of the video. Appellant’s Br. p. 27. He doesn’t tell us

       what interpretation might have made a difference, but at trial, Walton’s

       attorney said that Walton’s position “is basically that why is this guy saying

       this, that I did this when it wasn’t me.” In other words, Walton apparently

       believed that the video should have been interpreted as an attempt by him to get

       his friends to pay a friendly visit to Walker to have a civilized conversation with

       him about how he had the wrong guy—not to kill, hurt, threaten, or otherwise

       intimidate him. Having reviewed the video, we believe it is highly unlikely that

       the jury would have accepted such an explanation. While Walton never

       specifically indicated that he wanted the visit to be hostile, the fact that he

       referred to Walker as a “f*** nig**” and a “f*** a** nig**” and told his friends

       to “blow in his ear” strongly suggests that Walton wasn’t contemplating a

       pleasant encounter. Therefore, any attempt by Walton’s attorney to put a

       positive spin on the video surely would have damaged—not bolstered—her

       credibility with the jury, and the post-conviction court did not err in concluding

       that counsel’s failure to do so prejudiced Walton.
       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018   Page 10 of 11
[16]   Walton relies heavily on Christian v. State, 712 N.E.2d 4 (Ind. Ct. App. 1999).

       There, a defendant charged with rape testified that the sexual contact between

       him and his accuser was consensual and that, in any event, there was no

       penetration, which is an element of rape. During closing arguments, however,

       defense counsel conceded that penetration had occurred and instead argued

       only that it was consensual. We held that counsel’s concession on the

       contested issue of penetration—which directly contradicted his client’s own

       testimony—constituted ineffective assistance of counsel. Id. at 7.


[17]   Walton asserts that his attorney made a concession that was “strikingly similar”

       to the one made in Christian. Appellant’s Br. p. 24. We disagree. Unlike the

       attorney in Christian, Walton’s trial attorney did not concede any element of a

       charged crime. The only thing she conceded was that Walton was an “idiot”

       and a “fool” for asking his friends, on a recorded video feed, to “holler” at

       Walker and “blow in his ear” in an effort to keep him from testifying against

       Walton. Since there is no dispute that this was an incredibly ill-advised thing

       for Walton to do, counsel’s concession was nothing like the critical concession

       made in Christian.


[18]   Affirmed.


       May, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-PC-2111 | March 21, 2018   Page 11 of 11
