MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Aug 22 2018, 9:44 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brent R. Dechert                                         Curtis T. Hill, Jr.
Dechert Law Office                                       Attorney General of Indiana
Kokomo, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jermaine Drake,                                          August 22, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-79
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Kimberly S.
Appellee-Respondent                                      Dowling, Judge
                                                         Trial Court Cause Nos.
                                                         18C02-0809-PC-2
                                                         18C02-0410-MR-2



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018                      Page 1 of 17
                                          Case Summary
[1]   Jermaine Drake appeals the denial of his petition for post-conviction relief. We

      affirm.



                            Facts and Procedural History
[2]   The underlying facts of this case, as taken from this Court’s opinion on direct

      appeal, are as follows:


              Approximately one week before October 2, 2004, Drake
              informed two of his friends—Jordan Williams and Jordan
              Quinn—that his in-car television had been stolen. Drake
              instructed the men to contact him if they learned the
              whereabouts of the television.


              On October 2, 2004, David Adams contacted Chris Masiongale
              in Yorktown and informed him that he had a television to sell.
              Adams told Masiongale that he could keep any money over $150
              if Masiongale could sell the television. Masiongale agreed and
              called Quinn later that day regarding the television. Quinn
              subsequently called Drake and informed him that Masiongale
              had contacted him about a television. After speaking with
              Drake, Quinn called Masiongale and arranged a meeting
              between Masiongale and Drake.


              After determining that Quinn would not be able to drive Drake to
              the meeting, Drake called Williams and informed him that “he
              knew who stole his tv and asked [ ] if [Williams] would go with
              him to go get it.” Tr. p. 375. Because Williams was at Ronnie
              Haste’s home when he received the call, he and Haste both went
              to Drake’s apartment to pick him up. Williams drove [Haste’s]
              black Dodge Ram to the apartment because Haste was too

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018   Page 2 of 17
              intoxicated to drive. After picking up Drake, the three men
              drove to the arranged meeting place.


              Masiongale, Adams, Kirt Trahan, and Masiongale’s girlfriend,
              Lynds[a]y Scott, were outside Adams’s home when a black
              Dodge Ram carrying three people arrived. Williams stepped out
              of the vehicle and asked to see the television. Drake also exited
              the vehicle, approached Masiongale and said, “Give me my
              shit.” Id. at 121. Before Masiongale could answer, Drake shot
              him. Williams grabbed the television and said, “I got it come
              on,” and the men got back into the vehicle and drove
              away. Id. at 206. While fleeing from the scene, Drake called his
              mother and “asked for two (2) tickets to California because he
              thought he just killed somebody.” Id. at 385. Masiongale was
              taken to Ball Hospital, where he was pronounced brain dead the
              next morning and died after being removed from life support.


              During the next few days, Williams, Scott, and Adams selected
              Drake’s picture from a police photo array. [On October 6, 2004,
              the State charged Drake with murder.] On October 10, 2004,
              Drake, who had fled to California, contacted Carlos Kelly, a
              pastor in San Diego. Two days later, Kelly helped Drake turn
              himself in to the local law enforcement authorities.


      Drake v. State, No. 18A02-0605-CR-367, slip op. at 2-3 (Ind. Ct. App. May 1,

      2007) (footnote omitted), trans. denied.


[3]   A jury trial was held in February 2006. Drake was represented by two

      attorneys. Defense counsel’s theory was that although Drake was present at the

      scene, Williams was the shooter. Tr. p. 649. The jury found Drake guilty of

      murder, and the trial court sentenced him to fifty-five years.



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018   Page 3 of 17
[4]   Drake appealed raising numerous issues, including that the evidence was

      insufficient to prove that he was the shooter (rather, it was Williams). We

      disposed of this argument as follows:


              To sustain a conviction for murder, the State had to present
              evidence to establish that Drake knowingly killed Masiongale.
              I.C. § 35-42-1-1(1). At trial, four witnesses testified that Drake
              shot Masiongale—Scott, Williams, Adams, and Trahan. All four
              testified that Drake was the passenger in Williams’s vehicle and
              that he shot Masiongale. Tr. p. 126-27, 205, 255, 382. For
              instance, Trahan testified that Williams, Masiongale, and Drake
              were “negotiating a price” for the television and that “all of a
              sudden [Drake] reached into his pocket like he was getting out
              some money. And then he pulled out a gun and shot
              [Masiongale].” Id. at 255. As a result of the gunshot wound,
              Masiongale was pronounced brain dead the next morning and
              died after being removed from life support.


              While Drake presents an alternative theory regarding the events
              preceding Masiongale’s death, his argument is merely an
              invitation for us to reweigh the evidence—a practice in which an
              appellate court does not engage. Thus, we conclude that the
              State presented sufficient evidence to sustain Drake’s murder
              conviction.


      Drake, No. 18A02-0605-CR-367, slip op. at 5.


[5]   Drake filed a pro se petition for post-conviction relief in 2008, which was

      amended by counsel in 2015 and 2017. Drake argued that his trial counsel were

      ineffective on several grounds. The post-conviction court denied relief.


[6]   Drake now appeals.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018   Page 4 of 17
                                 Discussion and Decision
[7]   A defendant who files a petition for post-conviction relief has the burden of

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

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

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

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

      post-conviction court. Id. at 269. We review the post-conviction court’s legal

      conclusions de novo but accept its factual findings unless they are clearly

      erroneous. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), reh’g denied.


[8]   Drake contends that the post-conviction court should have granted him relief

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

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

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

      deficiently and whether that deficient performance prejudiced the

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

      performance is deficient if it falls below an objective standard of

      reasonableness—if the attorney committed errors so serious that it cannot be

      said that the defendant had “counsel” as guaranteed by the Sixth

      Amendment. Id. A defendant has been prejudiced if there is a reasonable

      probability that the case would have turned out differently but for counsel’s

      errors. Id. “We afford great deference to counsel’s discretion to choose strategy

      and tactics, and strongly presume that counsel provided adequate assistance



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018   Page 5 of 17
       and exercised reasonable professional judgment in all significant

       decisions.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh’g denied.


                                                     I. Williams
[9]    Drake’s first argument that trial counsel were ineffective centers on the State’s

       witness, Williams. Drake asserts that counsel did not adequately cross-examine

       and impeach Williams and failed to object to evidence that Williams failed a

       voice stress exam and purchased a gun from Drake.


[10]   The underlying facts are as follows. Williams first talked to police on October

       5, 2004—three days after the shooting. Before speaking with police, Williams

       made an agreement with the State that if he testified truthfully against Drake

       and gave a truthful statement to police, no charges would be filed against him.

       Tr. p. 393. Williams, however, later failed a voice stress exam,1 and in March

       2005 the State charged Williams with murder (murder in the commission of a

       felony). Id. at 394-95. The night before Drake’s February 2006 trial, the State

       made a second agreement with Williams that if he testified truthfully against

       Drake, the murder charge would be dismissed. Id. at 371, 396. Williams then

       testified at Drake’s trial. Specifically, Williams testified that Drake called him




       1
           The post-conviction court described the voice stress exam as follows:

                [A] police officer hooks a person up to a computer and orally asks the person a series of
                questions. These questions and answers are videotaped. There is a computer printout and the
                officer formulates an opinion as to whether the person answered the series of questions
                truthfully. The police officer writes a police report on what transpired.
       Appellant’s P-C App. Vol. IV p. 8 (Finding 49).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018                   Page 6 of 17
       on October 2, 2004, and told him that “he knew who stole his tv and asked

       [Williams] if [he] would go with him to . . . get it.” Id. at 375. Williams

       testified that when he went to Drake’s house to pick him up, he saw Drake put

       a gun in his pants. Finally, Williams testified that after he drove to the

       arranged meeting place and started negotiating a price for the television, Drake

       exited the passenger side of the truck and shot Masiongale. Williams testified

       that the main difference between his October 5, 2004 statement to police and

       his trial testimony was that he did not tell police on October 5 that he saw

       Drake put a gun in his pants. Id. at 396, 399.


[11]   On cross-examination, defense counsel asked Williams about a voice stress

       exam that he had taken in early March 2005. Id. at 394. Defense counsel also

       asked Williams if he had “any guns” at his house at the time of the shooting.

       Id. at 401. Williams said yes and then listed them, including “a three eighty

       handgun.” Id. Defense counsel then asked Williams if police found the

       handgun at his house, and Williams said no because he “got rid of it” in a

       dumpster. Id. On redirect, the State asked Williams, “Who did you buy that

       handgun off of,” and Williams responded Drake. Id. at 403. Also on redirect,

       the State offered into evidence the results from the voice stress exam (Exhibit

       19) that Williams had taken on March 1, 2005. Id. at 404. Exhibit 19 included

       the questions asked, Williams’s responses, and the examiner’s conclusion that

       Williams showed “deceptive responses on all relevant questions.” Ex. 19.

       Defense counsel’s “only objection” to Exhibit 19 was that the State did not




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018   Page 7 of 17
       provide it to them in discovery. Tr. p. 404. The trial court admitted Exhibit 19

       into evidence. Id.


                             A. Cross-Examination of Williams
[12]   Drake first claims that trial counsel failed to adequately cross-examine and

       impeach Williams about the agreement he reached with the State the night

       before Drake’s trial. Drake acknowledges that defense counsel cross-examined

       Williams about the last-minute agreement. See Appellant’s Br. p. 19

       (“[Counsel] did point out that Williams was charged with Murder and that

       those charges were to be dismissed . . . .”). Indeed, as we noted on direct

       appeal:


               Drake cross-examined Williams at trial and elicited Williams’s
               potential biases. Specifically, Drake’s cross-examination
               confirmed that Williams had been charged with Masiongale’s
               murder in March 2005 and that he had been imprisoned until he
               “made a deal with the Prosecution” the night before Drake’s
               trial. [Tr. pp.] 393-96.


       Drake, No. 18A02-0605-CR-367, slip op. at 9. Drake, however, asserts that

       counsel should have gone about it in a different way, such as by introducing

       into evidence the actual charging information against Williams and the penalty

       range for the offense. But Drake doesn’t make a convincing argument that his

       suggested approach would have been any more effective than the approach that

       counsel employed. Moreover, the jury was well aware that Williams had been

       charged with murder and that the charge was going to be dismissed because of



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018   Page 8 of 17
       his testimony at Drake’s trial. Drake has not met his burden of showing that

       counsel were deficient in their cross-examination of Williams.


                                         B. Voice Stress Exam
[13]   Drake next claims that counsel were ineffective for failing to object to the

       admission of the results of Williams’s voice stress exam, Exhibit 19, on the

       ground that the State had not previously disclosed those results to the defense.

       But counsel did object on that ground, as follows:


               [DEFENSE COUNSEL]: The only objection that I would have,
               Your Honor, is that is the first time we’ve ever seen that
               document. It wasn’t provided in the State’s discovery.


               [DEPUTY PROSECUTOR]: Judge, I would have to take a
               second and go through the discovery to ensure that that was
               provided.


               THE COURT: But aside from . . . .


               [DEFENSE COUNSEL]: Aside from that, no, I don’t have any
               objection to it.


               THE COURT: Alright. Be admitted into evidence.


       Tr. p. 404.


[14]   While counsel could have been more forceful or persistent in their objection on

       this ground, the fact remains that counsel made the objection that Drake now

       claims they should have made. But even if counsel had handled the objection


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018   Page 9 of 17
       in a different way, the State had, in fact, previously disclosed Exhibit 19 to the

       defense. The post-conviction court found as much, see Appellant’s P-C App.

       Vol. IV p. 9 (Findings 51, 52, 58), and Drake does not challenge these findings

       on appeal.2


[15]   Drake next argues that even if counsel were provided with Exhibit 19 during

       discovery, they were ineffective for failing to “think through the ramifications of

       stipulating to its admissibility” and then not objecting on that ground.

       Appellant’s Br. pp. 28, 30. But the record demonstrates that counsel thought

       through the ramifications and made a strategic decision about the voice stress

       exam; it was counsel who first brought up the topic of the failed voice stress

       exam with Williams on cross-examination:


                Q        And then after that, uh, sometime in, uh, around . . . first
                         of March of 2005, you failed two (2) voice stress tests, is
                         that correct?


                A        Yes.


                Q        And those are all regarding the events of this evening, of
                         that evening, is that correct?




       2
         Drake argues that counsel should have specifically objected on the basis of Brady v. Maryland, 373 U.S. 83
       (1963), which provides that the State has an affirmative duty to disclose material evidence favorable to the
       defendant. State v. Hollin, 970 N.E.2d 147, 153 (Ind. 2012). However, a Brady objection would have failed
       for the same reason we just stated—the State did turn over Exhibit 19 to the defense during discovery.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018                    Page 10 of 17
        A        No. I failed questions if I was male or female, living in
                 Indiana, my name is Jordan. I failed every question there
                 was to the test, sir.


        Q        Every single question they asked you, you failed?


        A        Yes.


        Q        Two (2) sets of tests?


        A        Yes.


        Q        One given by a Delaware County Police Officer?


        A        Yes.


        Q        And one given by a Private Investigator here in town?


        A        Yes.


        Q        And then on March 15th or so of 2005 . . .,you were
                 charged with murder, is that correct?


        A        Yes sir.


Tr. p. 394 (emphasis added).3 It was then on redirect that the State offered

Exhibit 19 into evidence. Id. at 403. It is apparent from the cross-examination



3
  There appears to have been some confusion at the post-conviction hearing about who asked these questions
at trial—the deputy prosecutor or defense counsel. See, e.g., P-C Tr. p. 123. However, the trial transcript
reflects that defense counsel’s cross-examination of Williams started at the bottom of page 390 and ended at

Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018                  Page 11 of 17
       above that counsel used the fact that Williams had failed the voice stress exams

       to discredit him. See P-C Tr. pp. 66-67 (counsel testifying at post-conviction

       hearing that it was a strategy decision to let in evidence that Williams was

       deceptive during the voice stress exam because it was “important for the jury to

       hear”). Because Drake has not made any argument that this strategy decision

       was unreasonable, we cannot say that counsel were deficient.4


                                           C. Handgun Purchase
[16]   Last, Drake claims that counsel were ineffective for failing to object to

       Williams’s redirect testimony that he purchased a handgun from Drake. To

       prevail on a claim of ineffective assistance due to the failure to object, the

       defendant must show a reasonable probability that the objection would have

       been sustained if made. Passwater v. State, 989 N.E.2d 766, 772 (Ind. 2013).

       Drake argues that Williams’s testimony violated Indiana Evidence Rules 404(b)

       and 403 because the “allegation that Drake sold a gun to Williams had no

       relevancy as to any matter that was at issue in t[he] trial other than his

       propensity to have committed the charged act” and thus was unduly prejudicial.

       Appellant’s Br. p. 22. The State responds that Drake cannot show a reasonable

       probability that an objection would have been sustained because counsel




       the top of page 403, which includes the above exchange on page 394. The State’s redirect of Williams then
       started on page 403.
       4
        Drake does not acknowledge the fact that his counsel were the first ones to bring up the topic of the failed
       voice stress exams, let alone argue that they were deficient for doing so.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018                     Page 12 of 17
       opened the door to this line of questioning on cross-examination by asking

       Williams if he had any guns at his house at the time of the shooting.


[17]   “Opening the door refers to the principle that where one party introduces

       evidence of a particular fact, the opposing party is entitled to introduce evidence

       in explanation or rebuttal thereof, even though the rebuttal evidence otherwise

       would have been inadmissible.” Sampson v. State, 38 N.E.3d 985, 992 n.4 (Ind.

       2015). Evidence that opens the door “must leave the trier of fact with a false or

       misleading impression of the facts related.” Cameron v. State, 22 N.E.3d 588,

       593 (Ind. Ct. App. 2014) (quotation omitted). When that happens, the State

       may introduce otherwise inadmissible evidence if it is “a fair response to

       evidence elicited by the defendant.” Id. (quotation omitted). The State claims

       that counsel’s cross-examination of Williams left the jury with the false

       impression that Williams was the only person with a connection to the

       handgun, which wasn’t the case. Appellee’s Br. p. 17. We agree and therefore

       find that counsel were not deficient for not objecting to Williams’s redirect

       testimony that he purchased the handgun from Drake because there is not a

       reasonable probability that the objection would have been sustained.5




       5
         Drake does not argue that counsel were ineffective for bringing up the topic of guns with Williams in the
       first instance.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018                    Page 13 of 17
                              II. Scott’s Identification of Drake
[18]   Drake next argues that trial counsel were ineffective because they failed to

       challenge Scott’s (the victim’s girlfriend) identifications of Drake as the shooter.

       Scott identified Drake from a photo array before trial and then during trial.

       Drake argues that counsel should have filed “a pre-trial motion to suppress the

       photo array” because it was unduly suggestive and then objected “to [Scott’s]

       in-court identification of Drake” because there was no “independent basis” for

       it. Appellant’s Br. p. 17.


[19]   Drake asserts that there was “no conceivable strategy reason” for counsel not to

       object to Scott’s identifications of him because the issue at trial was who shot

       Masiongale. However, we can readily dispose of this claim on the prejudice

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

       dismiss an ineffective assistance claim based upon the prejudice prong, we may

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

       denied. As we said in our opinion on direct appeal, “At trial, four witnesses

       testified that Drake shot Masiongale—Scott, Williams, Adams, and Trahan.[6]

       All four testified that Drake was the passenger . . . and that he shot Masiongale.

       Tr. p. 126-27, 205[-07], 255, 382.” Drake, No. 18A02-0605-CR-367, slip op. at

       5. Notably, Drake does not challenge Adams’s and Trahan’s trial testimony on

       post-conviction. Because there are other eyewitnesses who identified Drake as




       6
        Trahan could not identify Drake, but he testified that it was the passenger—not the driver—of the truck
       who shot Masiongale. Tr. pp. 272, 282-83.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018                  Page 14 of 17
       the shooter, Drake has failed to prove that he was prejudiced by counsel’s

       failure to challenge Scott’s identifications of him.


                                     III. Detective Whitesell
[20]   Drake’s last argument that trial counsel were ineffective concerns the testimony

       of Yorktown Police Department Detective Jeffery Whitesell. Detective

       Whitesell testified at trial that he spoke with the mother of Jordan Quinn (who

       had called Drake to tell him that Masiongale had contacted him about a

       television) on October 3, 2004, and during that conversation, he “first” “heard

       Jermaine Drake’s name.” Tr. p. 565. Detective Whitesell testified that he then

       obtained a photo of Drake and put it into a photo lineup. Drake argues that

       counsel were ineffective for failing to object on grounds of hearsay because

       “Whitesell told the jury [that Quinn’s mother] provided the first tip to him that

       Drake was the potential shooter” but Quinn’s mother’s “was not an eye witness

       to the events.” Appellant’s Br. p. 24.


[21]   In response, the State first points out that Detective Whitesell did not testify

       that Quinn’s mother told him that Drake was the shooter. The State then

       argues that Detective Whitesell’s testimony “simply explained to the jury how

       or why the investigation proceeded as it did and how or why [Drake’s]

       photograph was included.” Appellee’s Br. p. 18. This is known as course-of-

       investigation evidence.


[22]   The Indiana Supreme Court explained the purpose and dangers of course-of-

       investigation testimony in Blount v State:

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018   Page 15 of 17
               Although course-of-investigation testimony may help prosecutors
               give the jury some context, it is often of little consequence to the
               ultimate determination of guilt or innocence. The core issue at
               trial is, of course, what the defendant did (or did not do), not
               why the investigator did (or did not do) something. Thus,
               course-of-investigation testimony is excluded from hearsay only
               for a limited purpose: to bridge gaps in the trial testimony that
               would otherwise substantially confuse or mislead the jury. The
               possibility the jury may wonder why police pursued a particular
               path does not, without more, make course-of-investigation
               testimony relevant. Indeed, such testimony is of little value
               absent a direct challenge to the legitimacy of the investigation. . .
               .


       22 N.E.3d 559, 565 (Ind. 2014) (citations and quotations omitted).


[23]   Here, because Drake makes no allegation of police impropriety in narrowing

       the investigation to him, the reason the police included Drake in the photo

       array was not at issue. See id. at 567 (“Blount made no allegation of police

       impropriety in narrowing their investigation to him; thus, the reason the police

       included Blount in the photo array was simply not at issue.”). Therefore,

       because Detective Whitesell’s testimony that Quinn’s mother gave him Drake’s

       name was likely inadmissible course-of-investigation evidence, counsel should

       have objected.


[24]   But an ineffective-assistance claim also requires a showing of prejudice. Drake

       claims he was prejudiced by counsel’s failure to object because it was yet

       “another person” who “identif[ied] [him] as the shooter.” Appellant’s Br. p.

       25. But as noted above, Detective Whitesell did not testify that Quinn’s mother

       told him Drake was the shooter. And Drake makes no claim that the
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018   Page 16 of 17
       investigation would not have turned to him eventually. Accordingly, Drake

       was not prejudiced by counsel’s failure to object to Detective Whitesell’s

       testimony that he first learned Drake’s name from Quinn’s mother.


[25]   Affirmed.


       Pyle, J., and Barnes, Sr. J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-79 | August 22, 2018   Page 17 of 17
