      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                             Jul 27 2017, 11:04 am
      court except for the purpose of establishing
                                                                                 CLERK
      the defense of res judicata, collateral                                Indiana Supreme Court
                                                                                Court of Appeals
      estoppel, or the law of the case.                                           and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Arvil R. Howe                                             Curtis T. Hill, Jr.
      South Bend, Indiana                                       Attorney General of Indiana
                                                                Monika Prekopa Talbot
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Bruce A. White, Jr.,                                      July 27, 2017
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                20A04-1610-PC-2490
              v.                                                Appeal from the Elkhart Circuit
                                                                Court
      State of Indiana,                                         The Honorable Terry C.
      Appellee-Respondent.                                      Shewmaker, Judge
                                                                Trial Court Cause No.
                                                                20C01-1208-PC-85



      Mathias, Judge.


[1]   Appealing the denial of his petition for post-conviction relief, Bruce A. White,

      Jr. (“White”), claims it was contrary to law for the post-conviction court to rule


      Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017           Page 1 of 21
      that White’s trial counsel was not constitutionally ineffective at his 2010 jury

      trial in Elkhart Circuit Court for the murder of Alphonso James (“James”).


[2]   We affirm.


                                 Facts and Procedural Posture
[3]   In our unpublished affirmance of White’s conviction on direct appeal, we stated

      the facts of his case as follows:


              On the evening of July 25, 2009, White, Charles Farrell
              (“Farrell”), and an unidentified third man drove to Elkhart[,
              Indiana,] to purchase two kilo[gram]s of cocaine from [James]
              for a price of $64,000. The men met Daron Tuggle (“Tuggle”) at
              a convenience store, and then followed Tuggle’s vehicle to the
              Old Farm Apartments. Upon their arrival at the apartment
              complex, the group found James and Noble Dennie (“Dennie”)
              waiting for them. Tuggle, White, and Farrell got out of their
              vehicles and joined James and Dennie, and all five men entered
              an apartment.

              Once inside the apartment, James grabbed two packages of
              cocaine from a table. Farrell asked to look inside the packages,
              and Tuggle turned toward the kitchen to retrieve something to
              use to open them. At that time, Tuggle heard White tell James
              “give it up, Cuz.” Tuggle turned back around and saw that White
              was holding a gun to James’s head. Tuggle took a step forward,
              and Farrell pulled out a gun and pointed it at Tuggle, telling him
              not to move. James struggled with White, unsuccessfully
              attempting to disarm him. James then backed away as White
              continued to point the gun at him. Tuggle then heard a gunshot
              and James fell to the ground.

              Multiple other shots were fired, and Dennie knocked Tuggle to
              the ground. When the gunfire stopped, Tuggle looked up and
              saw that only he and James remained in the apartment. Tuggle
      Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 2 of 21
              then got up and went over to check on James, who had been shot
              in the abdomen, but was still breathing. Tuggle called an
              ambulance, but James later died from the gunshot wound. A
              single .45 caliber bullet was recovered during James’s autopsy.
              The police recovered seven .45 caliber shell casings, all of which
              were fired from one weapon, as well as six 9 [millimeter] shell
              casings, all of which were fired from one [other] weapon. No gun
              was seen or found on or near James.

              White suffered three gunshot wounds during the shooting, and
              he later sought treatment at a hospital in South Bend. White told
              the treating nurse that he was walking near a local restaurant and
              “minding his own business” when “these guys just came up and
              shot him.” The next morning, after reading about James’s death
              in the newspaper, White fled to Indianapolis, where he stayed at
              a friend’s house. . . . White [later] learned that a warrant had
              been issued for his arrest, and he fled to Atlanta, Georgia. While
              in Atlanta, . . . White was arrested, and before being
              fingerprinted, he admitted to the Atlanta police that he had shot
              someone and there was a warrant for his arrest in Indiana.
              Thereafter, White was extradited to Indiana and brought to the
              Elkhart County Jail.

              On March 1, 2010, the State charged White with murder and
              felony murder. A three-day jury trial commenced on December
              13, 2010, at which Tuggle testified for the State. At the
              conclusion of the evidence, White was found guilty of murder.
              The trial court held a sentencing hearing on January 6, 2011, and
              White was sentenced to an executed term of sixty-five years in
              the Department of Correction.


      White v. State, No. 20A03-1101-CR-28, 2011 WL 4847740, at *1-2 (Ind. Ct.

      App. Oct. 13, 2011) (record citations omitted).


[4]   White petitioned Elkhart Circuit Court for post-conviction relief on July 19,

      2013. A hearing was held on April 7, 2016, at which White’s trial counsel Carl
      Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 3 of 21
      Epstein (“Epstein”) testified. The post-conviction court entered findings,

      conclusions, and judgment denying White’s petition on September 27, 2016.1

      This appeal timely followed.


                                           Standard of Review
[5]   It was White’s burden to show his entitlement to post-conviction relief by a

      preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Ben-Yisrayl v.

      State, 792 N.E.2d 102, 105 (Ind. 2000). In appealing the denial of his petition

      for post-conviction relief, White thus appeals from a judgment on which he

      bore the burden of proof, or from a negative judgment. Id. We affirm such

      judgments unless contrary to law, that is, unless the uncontradicted evidence

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

      the court below. Id. at 105-06. We review the post-conviction court’s factual

      findings for clear error, error which leaves us with a definite and firm conviction

      that a mistake has been made, and its legal conclusions de novo. Id. at 106.


[6]   “In short, the question before us is whether there is any way the trial court

      could have reached its decision.” Id. (quotations omitted). If so, we must affirm.

      Id.




      1
       The court’s careful findings and conclusions have greatly aided our review. We note that White seems to
      have deprived us of one page of them, see Appellant’s App. Vol. IV, pp. 92–93, but our review has not been
      impeded thereby.

      Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017            Page 4 of 21
                                     Discussion and Decision
[7]   The Sixth Amendment to the federal constitution protects the right of an

      accused to have the effective assistance of counsel for his defense. Hanks v. State,

      71 N.E.3d 1178, 1183 (Ind. Ct. App. 2017), trans. denied. Counsel himself can

      deprive an accused of his Sixth Amendment right by failing to render adequate

      legal assistance. Id. (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)).


[8]   To prevail on a claim that he has received ineffective assistance of counsel, a

      defendant must show deficient performance and prejudice. Id. That is, he must

      show first that counsel’s performance fell below an objective standard of

      professional reasonableness, and second that there is a reasonable probability

      the outcome of the proceeding would have been different but for counsel’s

      unprofessional errors. Id. Counsel’s performance is presumed effective, and all

      significant decisions are presumed to have been made in the exercise of his

      reasonable professional judgment. Id. at 1184. We defer to counsel’s broad

      discretion in making tactical and strategic decisions. Id.


[9]   While White raises several individual allegations of ineffectiveness, “ineffective

      assistance of counsel is a single ground for relief no matter how many failings

      the lawyer may have displayed. Counsel’s work must be assessed as a whole; it

      is the overall deficient performance, rather than a specific failing, that

      constitutes the ground of relief.” Peoples v. United States, 403 F.3d 844, 848 (7th

      Cir. 2005).




      Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 5 of 21
                              I. Failure to Challenge Prospective Juror

[10]   White’s first allegation of ineffectiveness is Epstein’s failure to challenge, either

       for cause or peremptorily, a prospective juror, later the jury foreman, named

       “W.” at voir dire. The record discloses the following regarding W.:


           • At the outset of jury selection, the court self-deprecatingly noted, “[W.]
             and I are acquainted. He’s been a county employee or working for the
             Veterans Office for 150 years, and I’ve worked for the county 150 years
             or so.” Tr. p. 30.2

           • The prosecutor asked W., “Anything about your involvement with
             county government, with the people in county government, you
             indicated you knew [the trial judge], that you think might affect your
             ability to be fair or impartial in this system?” Tr. p. 46. W. answered,
             “No.” Id.

           • The prosecutor asked W., “Are you familiar with anyone from the
             prosecutor’s office in a friendly way?” Tr. p. 46. W. answered, “Yes.”
             The prosecutor asked, “Any part of those relationships that might affect
             your ability to be fair and impartial?” Id. W. answered, “No.”

           • The prosecutor asked W. whether he was “the type of person that
             [would] be objective and only hold the state and the defense to whatever
             standard the law require[d.]” Tr. p. 51. W. answered, “Yes.” Id. The
             prosecutor asked, “Are you going to want more than what the law
             requires?” Id. at 52. W. answered, “No.” Id.




       2
        We cite the multivolume but consecutively paginated trial transcript as “Tr.” and the post-conviction
       hearing transcript as “P.C.R. Tr.”

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017             Page 6 of 21
       Epstein never sought to remove W. for cause or by using one of his ten allotted

       peremptory challenges. Ind. Code § 35-37-1-3(b) (ten peremptory challenges in

       noncapital murder cases); see P.C.R. Tr. p. 7.


[11]   At the post-conviction hearing, Epstein testified as to his decision not to

       challenge W. as follows:


                [W]hy I didn’t strike that person at the time was probably
                because I was preoccupied by the overall number of individuals
                who I also thought were inappropriate for jury duty; but given
                the composition of the community, I ended up having to
                acquiesce to that at a certain point in time because, you know,
                you can only go through so many jurors. And I’m only allowed a
                certain number of peremptory strikes; and in this particular case,
                I couldn’t make a strike for cause. . . . [G]iven the entire grouping
                of jurors, I felt that was about as good of a composition as we
                were going to get given the circumstances.


       P.C.R. Tr. pp. 8, 26. Epstein was under the impression that, at the time W.

       disclosed he was “familiar with [some]one in the prosecutor’s office in a

       friendly way,” Tr. p. 46, he had no remaining peremptory challenges. P.C.R.

       Tr. p. 8.3




       3
         Without citation to the record, White asserts Epstein was incorrect: he did in fact have remaining
       peremptory challenges. Appellant’s Br. at 12. The post-conviction court does not appear to have found one
       way or the other; it only noted Epstein’s testimony to this effect, Appellant’s App. Vol. IV, p. 94, though its
       finding may be contained in the omitted page of its judgment order noted above. See footnote 1 supra. The
       State takes no position. See Appellee’s Br. at 19-21. Our review of the voir dire transcript does not reveal how
       many peremptory challenges Epstein had remaining at the time of W.’s disclosure, or indeed whether Epstein
       used any of his peremptory challenges. Importantly, for purposes of this appeal, we assume arguendo that
       Epstein did in fact have peremptory challenges remaining when W. disclosed his familiarity with one or more
       employees of the prosecutor’s office.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017               Page 7 of 21
[12]   An impartial, unbiased jury is guaranteed to a criminal defendant by the Sixth

       Amendment to the federal constitution and by Article I, Section 13, of our state

       constitution. Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012). A juror who is

       impartial and unbiased in the constitutional4 sense “is one who is able and

       willing to lay aside his . . . knowledge and opinions, follow the law as instructed

       by the trial judge, and render a verdict based solely on the evidence presented in

       court.” Id. (citing Irvin v. Dowd, 366 U.S. 717, 722–23 (1961)). Constitutionally

       biased jurors must be removed for cause, id. at 29, and defense counsel may be

       found constitutionally ineffective for allowing a constitutionally biased jury to

       be empaneled. United States v. Lathrop, 634 F.3d 931, 937-38 (7th Cir. 2011).

       But, their importance and antiquity notwithstanding, peremptory challenges in

       themselves have no constitutional dimension, United States v. Martinez-Salazar,

       528 U.S. 304, 311 (2000), and defense counsel should be accorded great leeway5

       in acting on his “‘hunches’ and impressions” based on a prospective juror’s

       “habits, associations, or ‘bare looks’” in ways that are “difficult if not

       impossible to explain . . . .” Oswalt v. State, 19 N.E.3d 241, 246 (Ind. 2014).


[13]   A juror may be actually or impliedly biased. Caruthers v. State, 926 N.E.2d 1016,

       1020 (Ind. 2010) (citing Joyner v. State, 736 N.E.2d 232, 238 (Ind. 2000)).




       4
        White cites only our state constitution, but our supreme court has not distinguished Section 13 and the
       Sixth Amendment in this context. See, e.g., Whiting, 969 N.E.2d at 28.
       5
        The only substantive limits the United States Supreme Court has put on the exercise of peremptory
       challenges flow from the equal protection clause of the Fourteenth Amendment, not from the Sixth
       Amendment. See Oswalt v. State, 19 N.E.3d 241, 246 (Ind. 2014).

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017             Page 8 of 21
       Implied bias “is attributed to a juror upon a finding of a relationship between

       the juror and one of the parties . . . .” Joyner, 736 N.E.2d at 238 (citing Haak v.

       State, 275 Ind. 415, 417 N.E.2d 321, 323 (1981) (juror’s spouse hired as deputy

       prosecutor on first day of trial)). “[T]he question comes down to whether the

       relationship is close enough to assume bias.” United States v. Brazelton, 557 F.3d

       750, 754 (7th Cir. 2009). Consanguinity is close enough, see id., as are

       victimization by the accused, see id., and direct employment by the prosecuting

       agency. Smith v. Phillips, 455 U.S. 209, 222 (1982) (O’Connor, J., concurring).

       Any more distant connection requires the defendant to show actual bias; bias

       will not be implied. Phillips, 455 U.S. at 215 (defendant required to show actual

       bias where juror actively sought employment with prosecutor’s office during

       trial); see also id. at 234 (Brennan, J., dissenting) (citing our supreme court’s

       decision in Haak as called into question by the majority’s holding in Phillips).


[14]   White asserts that W. was removable for cause as actually or impliedly biased,

       and Epstein’s failure to do so was ineffective; or, in the alternative, that Epstein

       was ineffective for failing to strike W. peremptorily.


[15]   The post-conviction court found “no evidence in the record to support [White’s]

       bald assertion” that W. was actually biased. Appellant’s App. Vol. IV, p. 94.

       Neither have we. Other than the bare fact of his “familiar[ity] with [some]one

       from the prosecutor’s office,” Tr. p. 46, none of W.’s voir dire responses

       contained even a whisper of bias against White. W. three times unequivocally

       affirmed his willingness and ability to render a fair and impartial verdict in



       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 9 of 21
       accordance with the evidence and the law. Id. at 46, 52. That is all the

       constitution required. See Whiting, 969 N.E.2d at 28.


[16]   Nor does the bare fact of W.’s “familiar[ity] with [some]one from the

       prosecutor’s office,” Tr. p. 46, describe a sufficiently close relationship to

       impute bias to W. It is not even clear that “[some]one,” id., referred to a

       prosecuting attorney; it could just as well have referred to an administrative

       assistant or a college intern. In any event, “familiar[ity] . . . in a friendly way,”

       id., certainly describes a relationship no closer than the interested, employment-

       seeking relationship rejected as giving rise to implied bias in Phillips. And W.’s

       friendliness with the trial judge is of no help to White either, because a

       relationship must be between “the juror and one of the parties,” Joyner, 736

       N.E.2d at 238 (emphasis added), to give rise to implied bias.


[17]   W. was neither actually nor impliedly biased, and the trial court could not have

       granted a motion to remove for cause. Epstein therefore cannot have been

       ineffective by failing to so move.


[18]   Nor was Epstein ineffective for failing to challenge W. peremptorily. Assuming

       arguendo that the Sixth Amendment may impose a duty on counsel to exercise

       peremptory challenges outside the narrow context of curing a trial judge’s

       erroneous failure to remove a biased juror for cause, see Ross v. Oklahoma, 487

       U.S. 81, 88 (1988), we are certain that duty was not imposed on Epstein here.

       Epstein testified that he thought the jury with W. on it “was about as good of a

       composition as we were going to get given the circumstances.” P.C.R. Tr. p. 26.


       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 10 of 21
       W. was to all appearances a reasonable and fair-minded man, and peremptorily

       challenging him risked antagonizing the trial judge, with whom W. was

       friendly, or the other jurors, who thought highly enough of W. to elect him their

       foreman — all to no end, since, in Epstein’s judgment, the jury was already

       “about as good” as he could have expected. Id.; see People v. Thompson, 997

       N.E.2d 1232, 1234 (N.Y. 2013) (reasoning similarly in case of failure to

       peremptorily challenge forty-year friend of prosecuting attorney). This

       justification is independent of Epstein’s presumably mistaken belief that he had

       no remaining peremptory challenges at the time W. made his disclosure. Not to

       challenge W. peremptorily was well within the reasonable professional

       competence required by the Sixth Amendment.


[19]   Even if we declared Epstein’s performance deficient on this point, White would

       still have to show prejudice.6 This he has not undertaken to do, and we see no

       basis in the record for concluding that there exists a reasonable probability

       White would not have been convicted of James’s murder but for W.’s presence

       on the jury.


[20]   Epstein was not ineffective with respect to W. at the voir dire stage of the trial.




       6
         Strickland prejudice would be presumed in the case of failure to challenge a biased juror, see Hughes v. United
       States, 258 F.3d 453, 464 (6th Cir. 2001) (declining to distinguish court error in empaneling biased jury,
       requiring reversal of conviction, from lawyer error in allowing biased jury to be empaneled); Johnson v.
       Armontrout, 961 F.3d 748, 755-56 (8th Cir. 1992), but we have concluded that W. was not actually or
       impliedly biased. Thus, White is not relieved of his burden to show Strickland prejudice.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017                Page 11 of 21
                            II. Impairment of Defense of Self-Defense

[21]   White’s second allegation of ineffectiveness is that Epstein made White’s

       defense of self-defense legally unavailable by mentioning during opening

       statement, and by allowing White to testify, that White was involved in a drug

       deal at the time he murdered James. This allegation misunderstands the law of

       self-defense.


[22]   The general rule of self-defense in Indiana is that a defendant wishing to raise it

       “must show that he was in a place where he had a right to be; did not provoke,

       instigate, or participate willingly in the violence; and had a reasonable fear of

       death or great bodily harm.” Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002).

       The privilege founded on this showing does not evaporate merely because the

       defendant is committing a crime at the time he is allegedly defending himself.

       Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). Rather, self-defense is

       unavailable only where there is “an immediate causal connection between the

       crime and the confrontation.” Id.


[23]   This is only a specific application of the general rule: where the crime itself is a

       “provo[cation], instigat[ion], or participat[ion]” in violence, Wilson, 770 N.E.2d

       at 800, self-defense is unavailable. Put differently, the crime itself must

       “produce the confrontation wherein the force was employed.” Harvey v. State,

       652 N.E.2d 876, 877 (Ind. Ct. App. 1995), trans. denied. Robbery is an example

       of such a crime. Mayes, 744 N.E.2d at 394; Henderson v. State, 795 N.E.2d 473,

       481 (Ind. Ct. App. 2003), trans. denied. Drug dealing, by itself and as a matter of

       law, is not. Henderson, 795 N.E.2d at 481 (holding jury not misled by court’s
       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 12 of 21
       incomplete self-defense instruction because supplemented by defense counsel’s

       statement, “[T]he State wants you to believe that the fact that he’s there for a

       pot deal means that he can’t claim self-defense. That’s not the law, and that

       makes no sense.”); Smith v. State, 777 N.E.2d 32, 36 (Ind. Ct. App. 2002)

       (holding murder defendant entitled to self-defense instruction where defendant

       went to victim’s home “to purchase marijuana and repay part of a drug debt”),

       trans. denied.


[24]   All of this was properly put before the jury at White’s trial. The court instructed

       the jury on self-defense in relevant part as follows:


               Because a defendant is committing a crime at the time he is
               allegedly defending himself is not sufficient standing alone to
               deprive the defendant . . . of the defense of self-defense. Rather,
               there must be an immediate causal connection between the crime
               and the confrontation.

               A person who was actively engaged in the perpetration of a crime
               may assert self-defense if the criminal activity he engaged in did
               not produce the confrontation wherein force was employed.


       Tr. pp. 938-39. Thus, it was correctly left to the jury to determine whether there

       was “an immediate causal connection” between the proposed cocaine sale and

       James’s death as would cut off White’s defense of self-defense, assuming the

       jury found the elements of self-defense not disproved beyond a reasonable

       doubt in the first place. See Mayes, 744 N.E.2d at 394 (holding issue properly

       submitted to jury); see also Appellee’s Br. at 23 (“[Had it credited White’s

       testimony], the jury could have determined that the drug deal could have been


       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 13 of 21
       concluded in a peaceful manner had it not been for James . . . attacking

       [White].”).


[25]   White appears to believe that, but for Epstein, the jury would have never heard

       anything at all about cocaine. This is nothing more than wishful thinking.

       White was never going to have a trial at which his presence in James’s

       apartment went unexplained. It was the theme and theory of the State’s case

       from its opening statement, Tr. p. 32 (“Ladies and gentlemen, Alphonso James

       was killed during a drug deal.”), through its closing argument. Id. at 929

       (“[White was] [t]he man who set everything into motion with the weapon and

       the violence, the man who’s been dealing drugs, the man who went to get

       possession of drugs, the man . . . who tried to rob Alphonso James during a

       drug deal.”). Epstein could not have kept it out of evidence, because it was

       central to a rebuttal of White’s self-defense claim, and any minimally

       competent prosecutor would have been expected to raise it as such.


[26]   Epstein was not ineffective with respect to White’s defense of self-defense.


                          III. Failure to Challenge Tuggle’s Testimony

[27]   White’s third allegation of ineffectiveness is Epstein’s failure to challenge

       certain testimony of Tuggle, the man who met White and Farrell at a

       convenience store before leading them to James’s apartment and a critical

       witness for the State. The subject testimony was elicited by the State on redirect

       examination following Epstein’s three-hour cross-examination of Tuggle,

       spanning 122 transcript pages. Epstein had sought inter alia to impeach Tuggle’s


       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 14 of 21
       credibility by the fact that Tuggle had reached a plea agreement with the State

       whereby Tuggle would testify against Farrell and White in exchange for the

       State’s dropping his lead charge of felony murder. The State elicited the

       following testimony from Tuggle regarding his experience after testifying at

       Farrell’s trial:


               [State:]         After testifying against Mr. Farrell, has that been
                                problematic for you in the jail?

               [Tuggle:]        A little bit, yeah.

               [State:]         Okay. Have you had threats against you?

               [Tuggle:]        Yes, ma’am.

               [State:]         Against your family?

               [Tuggle:]        Yes.

               [State:]         Have you had threats against your loved ones?

               [Tuggle:]        Yes ma’am.


       Tr. p. 473.


[28]   White argues that, had Epstein objected to this testimony as lacking foundation,

       or had Epstein cross-examined Tuggle about it, White might have been spared

       the inference that he was the one who threatened Tuggle. It is well settled that

       “threats against potential witnesses [made by the defendant] as attempts to

       conceal or suppress evidence are admissible as bearing upon [the defendant’s]

       knowledge of guilt.” West v. State, 755 N.E.2d 173, 182 (Ind. 2001).



       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 15 of 21
[29]   True, White might have been spared the inference that he personally threatened

       Tuggle — but, as Epstein testified at the post-conviction hearing, White might

       also have been subjected to direct, substantial evidence of it. Epstein “was

       concerned that the prosecutor . . . tried to create an inference that Mr. White

       was somehow . . . connected with the threats, and [he] didn’t object because

       [he] thought that would only reinforce that [inference].” P.C.R. Tr. p. 10.

       Epstein did not further cross-examine Tuggle for a similar reason: he “was

       afraid that something might come out that would implicate Mr. White [in]

       threatening Mr. Tuggle . . . .” Id. at 11.


[30]   Whatever collateral inference the prosecutor may have sought to raise, the

       immediate purpose of her redirect examination was to rehabilitate Tuggle’s

       credibility by showing that he was not, so to speak, “getting off easy” simply by

       making a deal with the State. This immediate purpose was several inferential

       steps removed from showing White’s knowledge of guilt. It was well within

       Epstein’s reasonable professional judgment not to risk taking those steps on the

       State’s behalf by calling more attention to the threats than necessary.


[31]   Epstein was not ineffective with respect to Tuggle’s testimony.

                      IV. Failure to Object to State’s Closing Argument

[32]   White’s fourth allegation of ineffectiveness is Epstein’s failure to object to the

       following remarks of the prosecutor on closing argument:


               [White’s exculpatory testimony as to the men’s relative positions
               in James’s apartment before the shooting] just makes absolutely

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 16 of 21
               no sense. Now, why is Bruce White trying to explain it like that?
               Because he’s had the benefit, ladies and gentlemen, of sitting
               through the evidence as we all have to explain why the bullet had
               that certain trajectory.


       Tr. pp. 889-90. White argues that it was deficient for Epstein not to object to the

       prosecutor’s improper burdening of White’s Sixth Amendment right to be

       present at trial.


[33]   However, the prosecutor did not improperly burden White’s Sixth Amendment

       right. Comment on a testifying defendant’s opportunity to tailor his testimony is

       constitutionally permitted, and the trial court could not have sustained an

       objection to the prosecutor’s comment here. Portuondo v. Agard, 529 U.S. 61, 69

       (2000) (“[W]hen a defendant takes the stand, his credibility may be impeached

       and his testimony assailed like that of any other witness. . . . [T]he rules that

       generally apply to other witnesses — rules that serve the truth-seeking function

       of the trial — are generally applicable to him as well.” (quotations and citations

       omitted)). Epstein was thus not deficient in failing to object to it.


[34]   Epstein was not ineffective with respect to the State’s comments on closing

       argument.


             V. Failure to Object to Failure to Give Lesser-Included Offense
                                       Instruction

[35]   White’s fifth allegation of ineffectiveness is Epstein’s failure to object to the trial

       court’s failure to give White’s tendered final jury instruction on voluntary

       manslaughter.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 17 of 21
[36]   Voluntary manslaughter is a lesser included offense of murder, proved by all the

       elements constituting murder, plus the mitigating element of “sudden heat.”

       Champlain v. State, 681 N.E.2d 696, 701-02 (Ind. 1997). Sudden heat is

       “sufficient provocation to excite in the mind of the defendant such emotions as

       anger, rage, sudden resentment, or terror, . . . excited emotions . . . sufficient to

       obscure the reason of an ordinary man.” Id. at 702. Sudden heat “prevent[s]

       deliberation, exclud[es] malice, and render[s] a person incapable of cool

       reflection.” Dearman v. State, 743 N.E.2d 757, 761 (Ind. 2001).


[37]   The added element of sudden heat makes voluntary manslaughter “not a typical

       example” of lesser included offenses. Watts v. State, 885 N.E.2d 1228, 1232

       (Ind. 2008). “Sudden heat must be separately proved. Therefore, if there is no

       serious evidentiary dispute over sudden heat, it is error for a trial court to

       instruct a jury on voluntary manslaughter.” Id. This rule can operate in a

       defendant’s favor:


               [Watts itself] illustrates how a voluntary manslaughter instruction
               in the absence of evidence of sudden heat can prejudice a
               defendant. One legitimate trial strategy for the defendant in a
               murder trial is an “all-or-nothing” one in which the defendant
               seeks acquittal while realizing that the jury might instead convict
               of murder. In a situation where a jury must choose between a
               murder conviction and an acquittal, the defendant might well be
               acquitted. But if the jury has voluntary manslaughter as an
               intermediate option, the defendant might be convicted of
               voluntary manslaughter as a “compromise.” Such a verdict is
               inappropriate if unsupported by any evidence of sudden heat;
               moreover, an unsupported voluntary manslaughter instruction



       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 18 of 21
               deprives the defendant of the opportunity to pursue a legitimate
               trial strategy.


       Id. at 1233.


[38]   Epstein’s tender of the voluntary manslaughter instruction notwithstanding, his

       decision not to object to or seriously contest the trial court’s failure to give it

       flowed from his pursuit of the “legitimate trial strategy,” id., outlined in Watts:


               I think a large part of that was, you know, I was of the opinion
               that I was presenting an all or nothing defense; and, you know,
               some of the other instructions[, particularly as to self-defense,]
               would have been contradictory and, you know, . . . [tended] to
               establish a basis . . . for a compromise[] verdict. . . . [F]rom a
               lawyer’s standpoint, when lawyers present contradictory
               arguments, then jurors give[] the lawyers less credibility in terms
               of their presentation, and that . . . tends to have an impact on the
               client’s position.


       P.C.R. Tr. p. 27. It was not deficient for Epstein to conclude that a voluntary

       manslaughter instruction legally and rhetorically undermined White’s best

       chance for acquittal.


[39]   To the extent that Epstein’s failure to object to the trial court’s proposed final

       instructions failed to preserve the issue for appeal, White was not prejudiced

       thereby. A trial court’s rejection of a voluntary manslaughter instruction for

       lack of a serious evidentiary dispute as to sudden heat is reviewed for abuse of

       discretion. Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind. Ct. App. 2010), trans.

       denied. In this case, the post-conviction court — and presumably the trial court


       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 19 of 21
       — found no “cognizable evidence of sudden heat. [White’s] bald assertion that

       he acted in sudden heat just after the drug transaction . . . is not supported by

       the evidence presented at trial.” Appellant’s App. Vol. IV, p. 97. We agree.


[40]   The portions of his own testimony White quotes here as creating a serious

       evidentiary dispute over sudden heat do no such thing. White testified that

       James pressed a gun to his side and that White then “kind of panicked . . . ,

       like, jumped. . . . [I]t was more or less because of how hard he poked me with

       the gun. It kind of like hurted me like being touched with something cold to

       make me jump . . . .” Tr. p. 806. White tried to shake James off and then the

       shooting started. White took cover for “13 to 15 seconds,” id. at 810, before he

       “went to retrieve [his] gun” from his pants pocket and returned fire. Id. at 809.

       In other words, White testified that he was startled and then took reasonable

       measures to defend himself. He did not testify that sudden rage or terror

       obscured his reason and rendered him incapable of cool reflection. Had the

       issue been presented to us on direct appeal, we could not have found that

       refusing White’s tendered voluntary manslaughter instruction was an abuse of

       the trial court’s discretion. Thus, White was not prejudiced by Epstein’s failure

       to object to the trial court’s proposed final instructions.


[41]   Epstein was not ineffective with respect to the voluntary manslaughter

       instruction.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 20 of 21
                                                 Conclusion
[42]   Finding White’s arguments on the whole to be entirely meritless, we conclude

       that White has failed to show that the post-conviction court’s denial of his

       petition for post-conviction relief was contrary to law. The judgment of the

       post-conviction court is therefore affirmed.


[43]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-PC-2490 | July 27, 2017   Page 21 of 21
