MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
this Memorandum Decision shall not be                               Sep 08 2016, 8:45 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Victoria Christ                                          Eric P. Babbs
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert L. Albores, Jr.,                                  September 8, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         45A03-1511-PC-2020
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Respondent.                                     Boswell, Judge
                                                         The Honorable Daniel J. Molter,
                                                         Special Judge
                                                         Trial Court Cause No.
                                                         45G03-1405-PC-5



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016     Page 1 of 18
[1]   Robert L. Albores, Jr., appeals from the denial of his petition for post-

      conviction relief. He asserts that the post-conviction court erred in rejecting his

      claims of ineffective assistance of trial and appellate counsel.


[2]   We affirm.


                                       Facts & Procedural History


[3]   The facts underlying Albores’s conviction for murder were set forth by this

      court on direct appeal as follows:

              Albores and the victim in this case, Michael Miranda, got along
              with no problems for several years. However, in 2008, Albores’s
              cousin[, Ruben Mercado,] was shot and killed. Albores believed
              Miranda was involved in the shooting. On July 22, 2010, Albores
              and Miranda found themselves stopped at an intersection at the
              same time. Albores fired [seven] shots at Miranda and drove
              away. Miranda died five days later.


              Albores was charged with murder and criminal gang activity.
              During the jury trial, the State presented evidence that Albores
              and Miranda were members of rival street gangs and argued that
              Albores shot Miranda in retaliation for his cousin’s death in
              2008. Albores testified at trial and denied being part of a gang.
              He did not deny he shot Miranda, but claimed he did so out of
              fear for his life. He described a turbulent relationship between the
              parties and a history of shootings that had allegedly occurred
              during the two years prior to the shooting that led to Miranda’s
              death. The jury was instructed on both self-defense and the lesser
              included offense of reckless homicide. The jury returned a verdict
              of guilty on the murder charge and not guilty on the criminal
              gang activity charge. The trial court sentenced Albores to a fifty-
              five year term of imprisonment.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016   Page 2 of 18
      Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied.


[4]   Albores raised one issue on direct appeal: whether the trial court abused its

      discretion by refusing to give his proposed jury instruction regarding the

      presumption of innocence. This court found no abuse of discretion and

      affirmed the murder conviction. Thereafter, our Supreme Court denied transfer

      by a vote of three to two on October 25, 2013.


[5]   Shortly thereafter, Albores filed for post-conviction relief (PCR). His amended

      PCR petition was filed November 12, 2014, alleging ineffective assistance of

      trial and appellate counsel. An evidentiary hearing took place on March 19,

      2015, at which trial counsel, Samuel Cappas, and appellate counsel, Thomas

      Vanes, testified. The post-conviction court issued a lengthy written order on

      October 30, 2015, denying the PCR petition. Albores now appeals. Additional

      facts will be provided below as needed.


                                          Discussion & Decision


                                            Standard of Review


[6]   In a post-conviction proceeding, the petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Bethea v. State, 983

      N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

      order to prevail, the petitioner must demonstrate that the evidence as a whole


      Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016   Page 3 of 18
      leads unerringly and unmistakably to a conclusion opposite the post-conviction

      court’s conclusion. Id. Although we do not defer to a post-conviction court’s

      legal conclusions, we will reverse its findings and judgment only upon a

      showing of clear error, i.e., “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id. (quoting Ben–Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000)).


[7]   A petitioner will prevail on a claim of ineffective assistance of counsel only

      upon a showing that counsel’s performance fell below an objective standard of

      reasonableness and that the deficient performance prejudiced the petitioner.

      Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must

      demonstrate deficient performance, which is “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.” Id.

      (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the

      second element, the petitioner must show prejudice, which is “a reasonable

      probability that, but for counsel’s errors, the result of the proceeding would

      have been different.” Id. at 1139. “A reasonable probability is one that is

      sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

      N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,

      694 (1984)). Because a petitioner must prove both deficient performance and

      prejudice in order to prevail on a claim of ineffective assistance of counsel, the

      failure to prove either element defeats such a claim. See Young v. State, 746

      N.E.2d 920, 927 (Ind. 2001) (holding that because the two elements of

      Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016   Page 4 of 18
      Strickland are separate and independent inquiries, the court may dispose of the

      claim on the ground of lack of sufficient prejudice if it is easier). This standard

      applies to both ineffective assistance of trial counsel and appellate counsel

      claims. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

      denied.


                            Ineffective Assistance of Appellate Counsel


[8]   Our Supreme Court has recognized three types of ineffective assistance of

      appellate counsel: (1) denial of access to appeal; (2) failure to raise issues that

      should have been raised; and (3) failure to present issues well. Wrinkles v. State,

      749 N.E.2d 1179, 1203 (Ind. 2001), cert. denied. Albores’s claim falls into the

      second category. This category will lead to a finding of deficient performance

      only if we determine that the omitted issues were significant, obvious, and

      clearly stronger than those presented. Id. Ineffectiveness is “very rarely found

      in these cases” because “the decision of what issues to raise is one of the most

      important strategic decisions to be made by appellate counsel.” Bieghler v. State,

      690 N.E.2d 188, 193 (Ind. 1997), cert. denied. On review, therefore, we are

      “particularly deferential to counsel’s strategic decision to exclude certain issues

      in favor of others, unless such a decision was unquestionably unreasonable.”

      Id. at 194.


[9]   Albores claims that appellate counsel was ineffective for failing to challenge the

      admission of certain evidence, which he and his trial counsel believed violated




      Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016   Page 5 of 18
       Ind. Evidence Rule 404(b). Trial counsel fully preserved the issue and alerted

       appellate counsel to it.


[10]   The evidence challenged at trial and admitted through the testimony of several

       witnesses related to a February 2004 incident that occurred when Albores was

       seventeen years old. On the afternoon in question, Albores waited in a vehicle

       while his cousin, Ruben Mercado, went into a convenience store. On the way

       inside, Mercado encountered Lee Hernandez, who appeared to be in a rival

       gang. The two exchanged words and a brief physical altercation ensued, ending

       with Mercado being shot in the head. As Hernandez ran from the scene with

       his handgun, Albores jumped into the driver seat and pursued him. Albores

       eventually drove onto the sidewalk and ran Hernandez down at a high rate of

       speed.1 Hernandez went airborne. Albores then drove back to pick up

       Mercado, where a witness heard him tell Mercado that he had run over the

       shooter and they had to go. Shortly thereafter, a responding officer pulled over

       the vehicle being driven by Albores, with Mercado injured inside. Albores

       falsely informed the officer that Mercado had been driving when Hernandez

       was run down. The jury heard all of this evidence, but did not learn that

       Albores was charged with attempted murder and pled guilty to a reduced

       charge of criminal recklessness for hitting Hernandez.




       1
         At the instant trial, Albores claimed he pursued Hernandez in an attempt to apprehend him. Albores
       testified further that he “bumped” Hernandez with the car out of fear only after Hernandez turned and pulled
       his handgun again. Trial Transcript at 787.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016        Page 6 of 18
[11]   In response to Albores’s 404(b) objections, the State argued that evidence of the

       2004 incident was relevant to rebut his current self-defense claim and went to

       establish motive and intent. In other words, the State wanted to show that if

       you mess with Mercado, Albores is going to get you. The trial court took the

       issue under advisement and on the third day of trial ruled the evidence

       admissible under the “motive” exception of Rule 404(b). 2


[12]   Appellate counsel testified at the PCR hearing that he seriously considered

       raising the 404(b) issue on direct appeal. After reviewing the trial transcript and

       case law, however, he ultimately decided not to raise the issue because he

       believed it would not be a “winner on appeal, not likely to produce a reversal.”

       PCR Transcript at 33. Instead, counsel raised an instructional issue that he

       believed was the best issue and supported by case law.


[13]   The instructional issue raised on direct appeal, though ultimately unsuccessful,

       was strong and well argued. Indeed, the rejected jury instruction was identical

       to the one rejected in Lee v. State, 964 N.E.2d 859 (Ind. Ct. App. 2012), trans.

       denied, which was found by this court to be an abuse of discretion and reversible

       error. Further, our Supreme Court denied transfer of Albores’s direct appeal by

       a narrow vote of three to two on October 25, 2013. A little over a year later, the

       Court granted transfer in McCowan v. State, 27 N.E.3d 760 (Ind. 2015) to resolve




       2
         “Evidence of a crime, wrong, or other acts is not admissible to prove a person’s character in order to show
       that on a particular occasion the person acted in accordance with the character.” Evid. R. 404(b)(1). The
       evidence, however, may be admissible for a purpose other than propensity, such as proving motive or intent.
       Evid. R. 404(b)(2).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016         Page 7 of 18
       the split of authority in our court and held that if requested by the defendant,

       the court must give an instruction like the one at issue in Lee, Albores, and

       several other cases.3


[14]   We cannot agree with Albores that the 404(b) issue was clearly stronger than

       the instructional issue raised by appellate counsel. At trial, the parties’

       competing theories were fixed from the start: Albores contended that he shot

       Miranda in self-defense, and the State argued that it was an act of revenge for

       the 2008 killing of Mercado. Accordingly, Albores’s motive was affirmatively

       placed in issue by the defense. The 2004 incident involving Albores, Mercado,

       and Hernandez was relevant to a matter at issue other than Albores’s general

       propensity to commit the charged act. The evidence helped establish the State’s

       theory of motive and rebut Albores’s self-defense claim. Moreover, with respect

       to prejudice, we observe that the jury was not made aware of the charge and

       conviction related to the 2004 events.


[15]   We commend Albores for his thorough 404(b) argument in the instant appeal.

       On the facts of this case, however, we conclude that it was not unquestionably

       unreasonable for appellate counsel to choose not to raise the 404(b) issue and

       instead present only the instructional issue.




       3
         Specifically, the Court stated “unequivocally and prospectively that it is the absolute right of every criminal
       defendant to receive the following jury instruction upon request: ‘The presumption of innocence continues in
       favor of the defendant throughout the trial. You should fit the evidence to the presumption that the
       defendant is innocent if you can reasonably do so.’” McCowan, 27 N.E.3d at 762.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016            Page 8 of 18
                                Ineffective Assistance of Trial Counsel


[16]   Albores raises a number of alleged errors committed by trial counsel, each of

       which he claims constituted ineffective assistance. We will address each in

       turn.

                  1. Admonishment/Limiting Instruction Regarding the 2004 Incident


[17]   After losing the evidentiary battle regarding the 2004 incident, trial counsel

       requested a mistrial, which was denied, but did not request an admonishment

       or limiting instruction. Counsel explained this decision at the PCR hearing.

       He did not believe such was needed because the State’s use of the evidence was

       clearly defined at trial. It was being used by the State solely to establish motive,

       and the jury knew that. While Albores would have been entitled to a limiting

       instruction and admonishment, counsel’s strategic decision not to request such

       in this case did not amount to deficient performance or result in prejudice. See

       Curtis v. State, 905 N.E.2d 410, 414 (Ind. Ct. App. 2009) (“[c]ounsel is afforded

       considerable discretion in choosing strategy and tactics, and we will accord

       those decisions deference), trans. denied.


                                         2. Evidence of 2008 Shootings


[18]   Miranda’s girlfriend, Nada Wills, and her mother, Nola Wills, testified about

       two instances where Nola’s house was shot at soon after Mercado’s death in

       2008. Neither witness could identify the shooter, but Nada testified that she

       believed Albores was responsible because he and his family blamed Miranda for


       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016   Page 9 of 18
       Mercado’s death. Nada testified that, out of fear, she and Miranda moved to

       another state with their children after these shootings. Nola also moved out of

       her longtime home to another community. Three officers offered very brief

       testimony regarding the 2008 shootings.


[19]   On the morning of trial, counsel unsuccessfully moved in limine to exclude any

       evidence related to the 2008 shootings. The trial court ruled that the evidence

       would be admissible as relevant to Albores’s state of mind (that is, he believed

       Miranda killed Mercado). Counsel did not reassert any objections with respect

       to this evidence at trial. Albores argues that counsel was ineffective for failing

       to challenge the evidence at trial as irrelevant because the shooting could not be

       linked to him.4


[20]   We do not agree with the trial court’s assessment that this evidence was

       admissible as relevant to Albores’s state of mind. It could not be because

       insufficient evidence linked him to the 2008 shootings. Cf. Camm v. State, 908

       N.E.2d 215, 224 (Ind. 2009) (“The value of specific acts evidence to prove

       motive rests on the strength of proof that the defendant in fact committed that

       other act. With no evidence connecting the defendant to the injuries, the

       inquiry lacked purpose.”); Wells v. State, 441 N.E.2d 458, 463 (Ind. 1982)




       4
         Albores also asserts that counsel should have moved to exclude this evidence because the State “never filed
       a notice of intent to offer 404(b) evidence about the 2008 shootings.” Appellant’s Brief at 32. There is no
       support for this assertion in the record. At the PCR hearing, there was a reference to a “late disclosure” but
       no indication regarding a complete failure to provide notice in this regard. PCR Transcript at 14. Further, the
       hearing on the morning of trial establishes that counsel had notice of the State’s potential use of evidence
       from the 2008 shootings.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016         Page 10 of 18
       (requiring evidence of probative value showing that the defendant actually

       engaged in the prior acts).


[21]   Nevertheless, we believe the evidence was relevant and inextricably bound up

       with the charged crimes. See Pope v. State, 740 N.E.2d 1247, 1250 (Ind. Ct.

       App. 2000) (“Evidence is relevant if it has any tendency to make the existence

       of any fact that is of consequence to the determination of the action more or less

       probable than it would be without the evidence.”). It established that within

       days of Mercado’s death, Nola’s otherwise peaceful residence5 was shot up on

       two separate occasions. Although the perpetrator was never identified, it is

       apparent that these shootings were in retaliation for Mercado’s death, for which

       Miranda was believed responsible. Further, the shootings resulted in Miranda

       and Nada fleeing the state and Nola leaving her home for a period of time. All

       of this was relevant to the State’s theory that Miranda was killed in a gang-

       related, retaliation shooting twenty-one months after Mercado’s death – the

       delay being the result, at least in part, of Miranda’s relocation. Further,

       considering the balancing test of Ind. Evidence Rule 403, any unfair prejudice

       resulting from this evidence was tempered by the witnesses’ acknowledgments

       that they could not identify the shooter.


[22]   In sum, we cannot say that had trial counsel objected to this evidence at trial, it

       would have been excluded. See Taylor v. State, 929 N.E.2d 912, 918 (Ind. Ct.




       5
           Nola testified that she had lived in the home for about eighteen years and had never had such problems.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016          Page 11 of 18
       App. 2010) (“To establish ineffective assistance for counsel’s failure to object, a

       petitioner must show that the trial court would have sustained the objection had

       it been made and that the petitioner was prejudiced by the failure to object.”),

       trans. denied.6


                                                 3. Hearsay Evidence


[23]   Albores argues further that counsel should have objected to certain hearsay

       statements made by Miranda and admitted during the testimony of Nada and

       Nola. Both witnesses testified that at some point after Mercado’s death,

       Miranda told them that he was afraid Albores was going to kill him and that he

       (Miranda) did not kill Mercado.


[24]   Evidence of a declarant’s then-existing state of mind is a well-recognized

       exception to the hearsay rule. See Ind. Evidence Rule 803(3). Such testimony is

       relevant and admissible when the defendant puts the victim’s state of mind in

       issue. See Hatcher v. State, 735 N.E.2d 1155, 1161 (Ind. 2000); Vehorn v. State,

       717 N.E.2d 869, 873 (Ind. 1999).


[25]   Both during opening statement and Albores’s trial testimony, the defense

       detailed a number of threatening encounters between Miranda and Albores, all




       6
         We find wholly without merit the State’s repeated assertion that the trial court was unlikely to change the
       ruling it made with regard to this evidence before trial. See id. (“It makes no difference whether counsel had a
       reasonable expectation that the trial court would change its ruling upon objection. Instead, the proper
       inquiry is whether the trial court would have had no choice but to sustain the objection; that is, whether the
       evidence should have been excluded.”).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016          Page 12 of 18
       allegedly initiated by Miranda or his fellow gang members. Albores claimed

       that Miranda shot at him or his residence on multiple occasions from 2008 to

       2010. He also testified that shortly before Miranda was killed, Miranda drove

       past Albores’s place of employment, rolled down his window, and extended his

       arm while saying “You’re snoozing.” Trial Transcript at 852. Albores claimed

       to be scared for his life as a result of these encounters.


[26]   In light of this evidence and argument, Albores clearly put Miranda’s state of

       mind at issue and contrary evidence that Miranda was the one fearful of

       Albores was relevant. While counsel could have requested a limiting

       instruction, we do not find the lack of one to have prejudiced Albores.


[27]   With respect to the testimony that Miranda told Nada and Nola that he did not

       kill Mercado, we find that any error in its admission was harmless. Both the

       State’s and the defendant’s cases were premised on the theory that Albores

       believed Miranda killed Mercado. Whether he did or not was really beside the

       point. Further, Nola and Nada’s testimonies were contradicted by Albores’s

       testimony that Miranda admitted to Albores that he killed Mercado.

                                          4. “Bloodhound” Evidence


[28]   Albores contends that counsel should have objected to “bloodhound evidence”

       admitted at trial. Appellant’s Brief at 19. Citing Brafford v. State, 516 N.E.2d 45

       (Ind. 1987), Albores argues that such evidence is too unreliable to be

       admissible. Brafford, however, was decided prior to the adoption of the Indiana

       Rules of Evidence and is no longer controlling. See Myers v. State, 33 N.E.3d

       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016   Page 13 of 18
       1077 (Ind. Ct. App. 2015), trans. denied. Seemingly acknowledging this, Albores

       goes on to baldly assert that counsel could have argued that the evidence was

       inadmissible under Indiana Evidence Rule 702 because it was not based on

       reliable scientific principles.


[29]   The evidence in question involved police K9 searches (not what is commonly

       understood as a bloodhound search) of Miranda’s vehicle five days after the

       shooting and Albores’s apartment upon his arrest seven months after the

       shooting. In each search, the K9s did not alert to the presence of a firearm.


[30]   Albores wholly failed to establish at the PCR hearing that the K9 evidence

       presented at trial was not based on reliable scientific principles. Further, trial

       counsel testified at the PCR hearing that he did not object to evidence of the K9

       search of the impounded vehicle, even though it was done five days after the

       shooting, because he considered the evidence “superfluous.” PCR Transcript at

       17. Indeed, other evidence at trial established that Miranda was not armed at

       the time Albores shot him.7

                           5. Amendment Adding Criminal Gang Activity Count


[31]   A week before trial, the State amended the charging information to add a

       second count, criminal gang activity. Trial counsel did not object to the late




       7
        For example, the evidence technician who processed the scene, Officer Yon Fletcher, testified that he did
       not find a gun or knife anywhere in Miranda’s vehicle.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016       Page 14 of 18
       filing because he did not believe the amended count changed the substance of

       the case. Albores claims this constituted ineffective assistance.


[32]   A charging information may be amended in matters of substance any time

       before the commencement of trial if the amendment “does not prejudice the

       substantial rights of the defendant.” Ind. Code § 35-34-1-5. “A defendant’s

       substantial rights include a right to sufficient notice and an opportunity to be

       heard regarding the charge; and, if the amendment does not affect any

       particular defense or change the positions of either of the parties, it does not

       violate these rights.” Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009)

       (quoting Ramon v. State, 888 N.E.2d 244, 252 (Ind. Ct. App. 2008)), trans.

       denied. In the end, the question is whether the defendant had a reasonable

       opportunity to prepare for and defend against the charges. Gomez, 907 N.E.2d

       at 611.


[33]   Prior to the amendment, Albores was already facing a murder charge with a

       criminal gang enhancement. Although the new charge of criminal gang activity

       was a separate count, Albores does not dispute that the evidence related to this

       charge would be virtually the same as the evidence for the enhancement.

       Further, Albores’s argument that the gang evidence coming in during the guilt

       phase of trial (instead of the enhancement phase) affected his substantial rights

       misses the mark. There is simply no indication that the amendment altered

       Albores’s defense theory or resulted in him being unprepared to defend against

       the charges. Accordingly, trial counsel was not ineffective in this regard.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016   Page 15 of 18
                                           6. Self-Defense Instruction


[34]   Finally, Albores contends that trial counsel should have objected to the court’s

       instruction on self-defense. This instruction provided:


               The killing of another human being may be justified on the
               theory of self-defense if the perpetrator:

                   1) acted without fault;

                   2) was in a place where he had a right to be;

                   3) was in real danger of great bodily harm or in such
                      apparent danger as to cause him in good faith to fear death
                      or great bodily harm.

               The danger of death or great bodily harm need not be actual. It
               need be only apparent to a reasonable person under the
               circumstances. The law protects persons who feel compelled to
               act at such times, even though in retrospect it is proven they have
               erred, if they acted reasonably, in view of the surrounding
               circumstances under which the events took place. The law of
               self-defense does not, however, protect one who kills another
               human being through anger or revenge in an encounter provoked
               and brought on by himself.

               The State has the burden of proving beyond a reasonable doubt
               that the Defendant did not act in self-defense.

               If you believe from the evidence in this case that the defendant
               killed the decedent in self-defense or if you have a reasonable
               doubt as to whether or not the defendant killed the decedent in
               self-defense, then he cannot be found guilty of the offense of
               murder.

       Direct Appeal Appendix at 136. Albores argues that the instruction failed to

       indicate that he did not have a duty to retreat or that deadly force could be used

       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016   Page 16 of 18
       to prevent a forcible felony. He also asserts that the instruction improperly

       included language that unduly emphasized the State’s revenge theory.


[35]   In order to establish trial counsel ineffectiveness based on failure to object to a

       jury instruction, a petitioner must first prove that a proper objection would have

       been sustained. Lambert v. State, 743 N.E.2d 719, 741 (Ind. 2001), cert. denied.

       Additionally, a petitioner must prove that the failure to object was unreasonable

       and resulted in sufficient prejudice such that there exists a reasonable

       probability the outcome would have been different had counsel objected. Id.


[36]   It is true that, in Indiana, a person confronted with deadly force is not obliged

       to retreat. See Patton v. State, 837 N.E.2d 576, 581 (Ind. Ct. App. 2005) (citing

       French v. State, 403 N.E.2d 821, 825 (Ind. 1980)). This case, however, was not

       about mutual combat or who was the aggressor, and the State did not argue

       that Albores had a duty to retreat once he believed he was facing deadly force.

       Indeed, the evidence reveals that the shooting occurred almost immediately as

       the two vehicles were stopped side by side. Albores shot at an unarmed man

       seven times. The jury was tasked with determining whether Albores truly

       believed he saw Miranda pointing a gun at him, placing him in fear of being

       shot. Retreat at this point was not an issue, and we fail to see how exclusion of

       this point of law prejudiced Albores.


[37]   Similarly, no prejudice resulted from omission of “fear of forcible felony” as a

       justification for using deadly force. Albores’s defense at trial was that he

       reasonably believed he was defending himself in a situation where he was


       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016   Page 17 of 18
       confronted with deadly force. The suggested addition to the instruction –

       though a correct statement of the law – would have had no effect on the

       outcome of the murder trial.


[38]   Albores’s final challenge to the instruction is not well-developed and not

       adequately supported by relevant authority. Essentially, he baldly asserts that

       “inclusion of non-statutory language that killing in revenge or anger

       unnecessarily emphasized one particular evidentiary fact the prosecutor

       stressed, invaded the province of the jury and was not proper language for an

       instruction.” Appellant’s Brief at 50. His argument falls far short of establishing

       deficient performance and resulting prejudice.


[39]   Judgment affirmed.


[40]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2020 | September 8, 2016   Page 18 of 18
