 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                Jun 05 2014, 5:58 am
 collateral estoppel, or the law of the case.




APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:
KEITH SCRUGGS                                       GREGORY F. ZOELLER
Carlisle, Indiana                                   Attorney General of Indiana

                                                    JAMES B. MARTIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

KEITH SCRUGGS,                                      )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
           vs.                                      )        No. 49A05-1307-PC-341
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )

                     APPEAL FROM THE MARION SUPERIOR COURT
                            CRIMINAL DIVISION, ROOM 6
                          The Honorable Mark D. Stoner, Judge
                            Cause No. 49G06-9806-PC-92690


                                           June 5, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
      Keith Scruggs (“Scruggs”) was convicted in 1999 of two counts of murder, and his

convictions were affirmed on direct appeal. Over ten years later, in 2010, Scruggs filed a

petition for post-conviction relief, which the post-conviction court denied.     Scruggs

appeals pro se and claims: (1) that the post-conviction court erred in denying Scruggs’s

claims of fundamental error; (2) that the post-conviction court erred in finding that

Scruggs was not denied the effective assistance of trial counsel; and (3) that the post-

conviction court erred in finding that Scruggs was not denied the effective assistance of

appellate counsel.

      We affirm.

                             Facts and Procedural History

      The facts underlying Scruggs’s convictions were set forth in the opinion of our

supreme court in Scruggs’s direct appeal as follows:

      The defendant with his friend and girlfriend went to another friend’s house.
      The defendant entered the residence which was occupied by several people.
      Upon recognizing one of the occupants, Lucas, as a man who had robbed
      him five or six months before, the defendant pulled out a revolver. One
      person asked the defendant if “this was a joke,” to which the defendant
      replied, “this is no [expletive deleted] joke.” Record at 225. Lucas ran into
      a bedroom and shut the door. As the defendant tried to open the door,
      Lucas tried to hold it closed. The defendant finally forced the door open
      and shots were fired as he entered the bedroom. Lucas died from multiple
      gunshot wounds. Oliver, another occupant of the room, was killed by a
      single bullet wound to her head. No witnesses testified as to who fired the
      shots, but there was no evidence that anyone else in the bedroom had a gun
      other than the defendant.

Scruggs v. State, 737 N.E.2d 385, 386-87 (Ind. 2000).

      On direct appeal, Scruggs claimed that “the inference that he was the shooter was

merely speculation and conjecture and that the State’s witnesses were not sufficiently

                                            2
credible to support the convictions.”     Id. at 387.   Our supreme court rejected this

contention and held that there was sufficient evidence to support Scruggs’s convictions.

Id. Scruggs also claimed that “his sentences of sixty years for each murder to run

consecutively [we]re manifestly unreasonable,” a contention which the court also rejected.

Id.

       On June 1, 2010, almost ten years after our supreme court affirmed Scruggs’s

convictions and sentence on direct appeal, Scruggs filed a pro se petition for post-

conviction relief. Scruggs filed an amended petition on March 13, 2012. In his petition,

Scruggs claimed that the prosecuting attorney committed misconduct amounting to

fundamental error and that he was denied the effective assistance of both trial counsel and

appellate counsel. The post-conviction court held a hearing on Scruggs’s petition on

October 11, 2012. At this hearing, Scruggs called as witnesses his trial and appellate

counsel. He also presented the affidavits of two individuals he claimed should have been

called as alibi witnesses.    The post-conviction court entered findings of fact and

conclusions of law denying Scruggs’s post-conviction petition on June 7, 2013. Scruggs

now appeals pro se.

                          Post-Conviction Standard of Review

       Post-conviction proceedings are not “super appeals” through which convicted

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

761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners

a limited opportunity to raise issues that were unavailable or unknown at trial and on

direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction

                                             3
petitioner bears the burden of establishing grounds for relief by a preponderance of the

evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial

of post-conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, the

petitioner must show that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Id. at 643-44.

       Where, as here, the post-conviction court makes findings of fact and conclusions

of law in accordance with Indiana Post-Conviction Rule 1(6), we cannot affirm the

judgment on any legal basis, but rather, must determine if the court’s findings are

sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App.

2011), aff’d of reh’g, 947 N.E.2d 962. Although we do not defer to the post-conviction

court’s legal conclusions, we review the post-conviction court’s factual findings under a

clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or judge

the credibility of witnesses, and we will consider only the probative evidence and

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

Id.

                                 I. Fundamental Error

       Scruggs first claims that the prosecuting attorney committed misconduct in several

respects, mostly involving statements regarding Scruggs’s alibi defense and the

credibility of his alibi witnesses. Scruggs claims that the prosecuting attorney’s behavior

amounted to fundamental error. Despite some earlier inconsistency in the precedent of



                                            4
our supreme court,1 the court has since clarified that even claims of fundamental error are

not reviewable in post-conviction proceedings when presented as free-standing claims of

error. Specifically, in Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002), the court stated

in no uncertain terms that “it [is] wrong to review [a] fundamental error claim in a post-

conviction proceeding.” Instead, the fundamental error rule applies only to direct appeals.

Id. “In post-conviction proceedings, complaints that something went awry at trial are

generally cognizable only when they show deprivation of the right to effective counsel or

issues demonstrably unavailable at the time of trial or direct appeal.” Id. (citing Canaan v.

State, 683 N.E.2d 227, 235 n.6 (Ind. 1997)); see also State v. Hernandez, 910 N.E.2d 213,

216 (Ind. 2009) (“A petitioner for post-conviction relief cannot avoid the application of

the waiver doctrine by arguing that it does not apply because the challenge raises

fundamental error.”); Conner v. State, 829 N.E.2d 21, 25 (Ind. 2005) (holding that where

petitioner made no claim that his claim was not known or available to him in prior

proceedings, his claim that he could present claim of fundamental error in successive

post-conviction petition was “simply wrong.”).

        Here, Scruggs presents his claims of prosecutorial misconduct as free-standing

claims of fundamental error, and does not explain how his claims were “demonstrably

1
  Compare Snider v. State, 468 N.E.2d 1037, 1039 (Ind. 1984) (“[I]t is through a showing of fundamental
error that the post-conviction court can bypass an obstacle to reaching the merits of a free standing claim
erected by a prior procedural default.”) and Propes v. State, 550 N.E.2d 755, 759 (Ind. 1990)
(“fundamental error is cognizable in a petition for post-conviction relief even absent preliminary proof of
ineffective assistance of counsel.”) with Bailey v. State, 472 N.E.2d 1260, 1263 (Ind. 1985) (holding that
“in a post-conviction petition an allegation of the denial of the petitioner’s due process rights may not be
raised in the ‘free standing’ form of an allegation of fundamental error.”) and Canaan v. State, 683 N.E.2d
227, 235 n.6 (Ind. 1997) (stating that the availability of the fundamental error exception to the waiver rule
post-conviction proceedings is generally limited to deprivation of the right to effective assistance of
counsel, or an issue demonstrably unavailable to the petitioner at the time of his trial and direct appeal).

                                                     5
unavailable” to him on direct appeal. His claims of fundamental error are therefore not

cognizable in a petition for post-conviction relief. See Sanders, 765 N.E.2d at 592.

                       II. Effective Assistance of Trial Counsel

      Scruggs also contends that the post-conviction court clearly erred in denying his

claim of ineffective assistance of trial counsel. Our supreme court summarized the law

regarding claims of ineffective assistance of trial counsel in Timberlake v. State as

follows:

             A defendant claiming a violation of the right to effective assistance
      of counsel must establish the two components set forth in Strickland v.
      Washington, 466 U.S. 668 (1984). First, the defendant must show that
      counsel’s performance was deficient. This requires a showing that
      counsel’s representation fell below an objective standard of reasonableness,
      and that the errors were so serious that they resulted in a denial of the right
      to counsel guaranteed the defendant by the Sixth Amendment. Second, the
      defendant must show that the deficient performance prejudiced the defense.
      To establish prejudice, a defendant must show that there is a reasonable
      probability that, but for counsel’s unprofessional errors, the result of the
      proceeding would have been different. A reasonable probability is a
      probability sufficient to undermine confidence in the outcome.
              Counsel is afforded considerable discretion in choosing strategy and
      tactics, and we will accord those decisions deference.             A strong
      presumption arises that counsel rendered adequate assistance and made all
      significant decisions in the exercise of reasonable professional judgment.
      The Strickland Court recognized that even the finest, most experienced
      criminal defense attorneys may not agree on the ideal strategy or the most
      effective way to represent a client. Isolated mistakes, poor strategy,
      inexperience, and instances of bad judgment do not necessarily render
      representation ineffective. The two prongs of the Strickland test are
      separate and independent inquiries. Thus, [i]f it is easier to dispose of an
      ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
      course should be followed.

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




                                            6
       A. Failure to Object

       Scruggs first claims that his trial counsel was ineffective for failing to object to

certain statements by the prosecuting attorney—the same statements he claims

constituted fundamental error. Of course, “to prevail on a claim of ineffective assistance

due to the failure to object, the defendant must show an objection would have been

sustained if made.”    Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007); accord

Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011).

       The first statement by the prosecuting attorney that Scruggs claims was improper

was a reference to the fact that certain individuals, who were allegedly with Scruggs at a

different location during the time of the shootings, did not testify as alibi witnesses. At

Scruggs’s trial, his counsel presented two alibi witnesses: Amber Brookins (“Brookins”),

who is the mother of Scruggs’s child, and Felicia Bonner (“Bonner”). Both Brookins and

Bonner testified that, at the time of the shooting, Scruggs was with them, Damien Golder

(“Golder”), and Scruggs’s uncle Clarence Hudgins (“Hudgins”), all of whom were

helping Brookins move to a new address. Although they were allegedly with Scruggs at

the time of the shooting, neither Golder nor Hudgins testified as alibi witnesses. During

the State’s closing argument, the prosecuting attorney referred to this fact, stating, “They

didn’t come in and testify, did they? I would think Uncle Clarence has a stake in this, but

he didn’t come in and testify.” Appellant’s App. p. 198.

       In his claim for post-conviction relief, Scruggs claims that this was prosecutorial

misconduct and that his trial counsel was constitutionally ineffective for failing to object

to this statement because it suggested that Scruggs bore the burden of proving his alibi

                                             7
defense when, in fact, the State bore the burden of disproving the alibi defense. See

Harris v. State, 617 N.E.2d 912, 915 (Ind. 1993) (noting that an alibi is an affirmative

defense and, once invoked by the defendant, the State has the burden of proving that the

defendant was in fact at the scene of the crime and committed the offense), overruled on

other grounds by Wright v. State, 690 N.E.2d 1098, 1099 (Ind. 1997)).

           With regard to the fact that Scruggs’s trial counsel did not object, Scruggs has

failed to show that this action fell below an objective standard of reasonableness. In fact,

Scruggs’s trial counsel testified at the post-conviction hearing that although he could not

precisely recall why he did not object to this statement by the prosecuting attorney (which

is not surprising given that a decade had elapsed since the trial), he sometimes chose not

to object to certain statements for fear that the objection “might overemphasize what

counsel is saying.” Post-Conviction Tr. p. 21.

           And even if this lack of an objection did constitute deficient performance, we

cannot say that Scruggs was prejudiced thereby. The jury was instructed that the State

bore the burden of disproving the alibi defense and that Scruggs was not required to

present any evidence to prove his innocence or explain anything, and we presume that the

jury followed the instructions it was given. Tormoehlen v. State, 848 N.E.2d 326, 332

(Ind. Ct. App. 2006). Accordingly, we agree with the post-conviction court that Scruggs

has not established that he was denied the effective assistance of trial counsel by his trial

counsel’s failure to object to the statement noting that certain alibi witnesses did not

testify.



                                               8
       Moreover, to the extent that Scruggs now claims that the prosecuting attorney

made an improper comment on the truthfulness of his alibi witnesses, we discern no error.

Here, the prosecuting attorney did not state that Scruggs’s alibi witnesses were untruthful.

He simply commented on the fact that certain witnesses to Scruggs’s alibi defense were

not called to testify, and made no comment at all on the fact that Scruggs chose not to

testify on his own behalf. See Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004)

(noting that comments by the prosecutor on the lack of defense evidence is proper so long

as the State focuses on the absence of evidence to contradict the State’s evidence and not

on the accused’s failure to testify).

       Scruggs also claims that his trial counsel should have objected to the following

statement by the prosecuting attorney during closing argument regarding Scruggs’s alibi

defense: “It’s evidence that you could have heard from the very first witness, and on

through the State’s case.” Appellant’s App. pp. 198-99. Scruggs claims this statement

was an improper comment on his post-arrest silence. We fail to see how this comments

on Scruggs’s silence at all. Moreover, we agree with the State that the prosecuting

attorney was attempting to explain to the jury that the State can rebut an alibi defense by

relying on its case-in-chief. See Stephenson v. State, 742 N.E.2d 463, 498 (Ind. 2001)

(noting that the State is not required to rebut a defendant’s alibi directly and may instead

disprove the alibi by proving its own case-in-chief beyond a reasonable doubt) (citing

Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997)). Indeed, the prosecutor’s statements

referred to the State’s case-in-chief, i.e. “from the very first witness . . . on through the

State’s case.” Appellant’s App. pp. 198-99.

                                              9
       Scruggs further argues that his trial counsel should have objected to what he

claims was improper vouching for the credibility of the State’s witnesses by the

prosecuting attorney during the State’s closing arguments. Again, we disagree. Scruggs

is correct in asserting that it is improper for a prosecutor to make an argument which

takes the form of personally vouching for a witness. Gaby v. State, 949 N.E.2d 870, 880-

81 (Ind. Ct. App. 2011). As we explained in Gaby, it is unethical for a lawyer in trial to

“‘assert personal knowledge of facts in issue except when testifying as a witness, or state

a personal opinion as to the justness of a cause, the credibility of a witness, the culpability

of a civil litigant or the guilt or innocence of the accused[.]’”           Id. (quoting Ind.

Professional Conduct Rule 3.4(e)).        A prosecutor may, however, comment on the

credibility of a witness if the assertions are based on reasons which arise from the

evidence presented at trial. Id.

       Here, the prosecuting attorney told the jury that, when it considered the testimony

of the State’s witnesses, “there [wa]s absolutely no reason for them to come in and lie.

What they came in here and told you was the truth, that on the 1st of June, 1998, Keith

Scruggs walked into 4015 Kitley and killed two people, Londa Oliver and Cheron Lucas.”

Tr. pp. 725-26. This statement comments on the evidence, i.e., the testimony of the

State’s witnesses, and does not assert a personal knowledge of the facts. Nor does it

directly vouch for the credibility of the witnesses; it simply asks the jury to consider their

testimony. Accordingly, we cannot say that Scruggs’s trial counsel was ineffective for

not objecting to this statement in the State’s closing argument. Assuming that it was

improper, we also cannot say that the result of the trial would have been different but for

                                              10
these statements. The jury was properly instructed on the burden of proof and that the

arguments of counsel were not evidence. We therefore agree with the post-conviction

court that Scruggs has not established that his trial counsel was ineffective for failing to

object to these statements during the State’s closing argument.

       B. Failure to Call Alibi Witnesses

       Scruggs also claims that his trial counsel was ineffective for failing to call

Hudgins and Golder as additional alibi witnesses. Scruggs claims that the only sound

strategy would have been to have all four alibi witnesses testify.         But it is well-

established that a decision regarding what witnesses to call is a matter of trial strategy

which an appellate court will not second-guess. McCullough v. State, 973 N.E.2d 62, 83

(Ind. Ct. App. 2012), trans. denied (quoting Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct.

App. 2009); see also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001) (“Which

witnesses to call is the epitome of a strategic decision.”).

       Here, Scruggs’s trial counsel testified at the post-conviction hearing that he was

“certain” that he used the investigators with the Public Defender’s Agency to locate any

witnesses that Scruggs told him of. Post-Conviction Tr. p. 17. He also stated that, if he

thought Hudgins and Golder were credible witnesses, he “would have made every

possible effort to get them here.” Post-Conviction Tr. pp. 19-20. To the extent that these

statements were contradicted by the affidavits of Hudgins and Golder that Scruggs

submitted in support of his post-conviction petition, the post-conviction court specifically

found these affidavits to be unworthy of credit. Assuming arguendo that Scruggs’s trial

counsel’s performance was deficient for failing to find and call these witnesses, at most

                                              11
these witnesses would have corroborated the testimony of two alibi witnesses already

presented. Given the cumulative nature of these alleged alibi witnesses, and the fact that

the State presented the evidence of four eyewitnesses, one of whom was Scruggs’s

girlfriend, implicating Scruggs as the shooter, we cannot say that Scruggs has shown that

the result of his trial would have been different even if Hudgins and Golder had testified.

       C. Failure to Move for Mistrial

       Scruggs also claims that his trial counsel’s performance denied him a defense

because of his counsel’s actions regarding the trial court’s ruling excluding the testimony

of one of the State’s witnesses, Rob Washington (“Washington”). The State presented

evidence that Washington had been at the scene of the crime and had been in possession

of a handgun. The State’s probable cause affidavit listed Washington as an eyewitness to

the shootings. However, the State had been unable to locate Washington and did not call

him to testify at trial. Then, on the last day of the trial, after Scruggs had rested his

defense, the State found Washington and wished to call him as a rebuttal witness.

Scruggs’s trial counsel objected to this late testimony, and the trial court sustained the

objection, refusing to allow Washington to testify. The trial court also ruled, however,

that Scruggs would not be permitted to comment on Washington’s whereabouts during

closing argument. Scruggs’s counsel objected to this portion of the ruling, but did not

move for a mistrial, which Scruggs now claims constituted ineffective assistance.

       On appeal, Scruggs wholly fails to explain why his trial counsel should have

moved for a mistrial or how he was prejudiced by this failure. Presumably, Washington’s

testimony would have been favorable to the State.          Otherwise, it would not have

                                            12
requested to present his testimony in rebuttal. Nor has Scruggs pointed to any evidence

suggesting that Washington was the shooter. It bears repeating that four eyewitnesses,

one of whom was Scruggs’s girlfriend at the time, identified him as the shooter. In short,

Scruggs has not persuaded us that his trial counsel was ineffective regarding the

exclusion of Washington’s testimony.

       D. Failure to Tender Jury Instructions on Lesser-Included Offenses

       Scruggs also claims that this trial counsel was ineffective for failing to tender jury

instructions on voluntary manslaughter, aggravated battery, reckless homicide, criminal

recklessness, or other lesser-included offenses of murder. We note that Scruggs asked no

questions of his trial counsel at the post-conviction hearing regarding his decision not to

tender lesser-included offense instructions. Accordingly, Scruggs cannot show that this

was not a strategic decision. See Culvahouse v. State, 819 N.E.2d 857, 863 (Ind. Ct. App.

2004) (appellate court may infer that trial counsel would not corroborate petitioner’s

claims of counsel’s own ineffectiveness).

       Moreover, as the post-conviction court noted, Scruggs’s theory of the case was an

alibi defense, i.e. that he was not at the scene of the crime and was not the shooter.

Tendering lesser-included offense instructions could have undermined this theory of the

defense. Our supreme court has long held that “a tactical decision not to tender a lesser

included offense does not constitute ineffective assistance of counsel, even where the

lesser included offense is inherently included in the greater offense.” Autrey v. State,

700 N.E.2d 1140, 1141 (Ind. 1998). Simply put, Scruggs’s trial counsel chose to pursue

an “all or nothing” strategy, and we will not second-guess this strategic decision with the

                                             13
benefit of hindsight. See Lane v. State, 953 N.E.2d 625, 630 (Ind. Ct. App. 2011)

(holding that trial counsel’s decision to pursue an “all-or-nothing” defense was not

unreasonable).

       In conclusion, the post-conviction court did not clearly err in concluding that

Scruggs failed to prove that he was denied the effective assistance of trial counsel.

                    II. Ineffective Assistance Of Appellate Counsel

       Scruggs also claims that his appellate counsel was constitutionally ineffective.

When we review claims of ineffective assistance of appellate counsel, we use the same

standard applied to claims of ineffective assistance of trial counsel: the post-conviction

petitioner must show that appellate counsel’s performance fell below an objective

standard of reasonableness and that there is a reasonable probability that, but for the

deficient performance of counsel, the result of the proceeding would have been different.

Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007).

       To show that counsel was ineffective for failing to raise an issue on appeal, the

defendant must overcome the strongest presumption of adequate assistance, and judicial

scrutiny is highly deferential. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To

evaluate the performance prong when counsel failed to raise issues upon appeal, we apply

the following test: (1) whether the unraised issues are significant and obvious from the

face of the record and (2) whether the unraised issues are “clearly stronger” than the

raised issues. Id. If the analysis under this test demonstrates deficient performance, then

we examine whether “the issues which . . . appellate counsel failed to raise, would have

been clearly more likely to result in reversal or an order for a new trial.” Id. Ineffective

                                             14
assistance is very rarely found in cases where a defendant asserts that appellate counsel

failed to raise an issue on direct appeal because the decision of what issues to raise is one

of the most important strategic decisions to be made by appellate counsel. Id.

       In the present case, Scruggs simply recasts two of his claims of ineffective

assistance of trial counsel, the allegations of prosecutorial misconduct and the trial

court’s ruling regarding Washington’s testimony, as claims of ineffective assistance of

appellate counsel, arguing that his appellate counsel should have presented these issues

on direct appeal. As set forth above, we have rejected these claims on their merits.

Accordingly, Scruggs cannot establish that these issues were “clearly stronger” than those

his appellate counsel did present on direct appeal, whether the evidence was sufficient to

support his convictions and whether his sentence was manifestly unreasonable. Thus, the

post-conviction court did not err in rejecting Scruggs’s claim of ineffective assistance of

appellate counsel.

                                         Conclusion

       The post-conviction court properly concluded that Scruggs’s free-standing claims

of fundamental error are not cognizable in a petition for post-conviction relief. Nor did

the post-conviction court clearly err in concluding that Scruggs was not denied the

effective assistance of trial or appellate counsel.

       Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.




                                              15
