MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                   FILED
this Memorandum Decision shall not be                                          Apr 09 2019, 8:50 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.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Robert Earl Davis                                         Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana

                                                          Angela N. Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Earl Davis,                                        April 9, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-PC-556
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Kathleen A.
Appellee-Respondent.                                      Sullivan, Judge Pro Tempore
                                                          Trial Court Cause No.
                                                          45G02-1311-PC-8



Darden, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019                           Page 1 of 27
                                      Statement of the Case
[1]   Robert Earl Davis appeals the denial of his petition for post-conviction relief.

      We affirm.


                                                     Issues
[2]   Davis raises seven issues, which we consolidate and restate as:


              I.       Whether the State’s belated answer to Davis’ first petition
                       for post-conviction relief was an improper ex parte
                       communication.


              II.      Whether the post-conviction court erred in sustaining the
                       State’s objection to Davis’ questioning of a witness.


              III.     Whether the post-conviction court erred in rejecting Davis’
                       claim of ineffective assistance of trial counsel.


              IV.      Whether the post-conviction court erred in rejecting Davis’
                       claim of ineffective assistance of appellate counsel.


                               Facts and Procedural History
[3]   The facts of Davis’ case, as stated by a panel of this Court in Davis’ prior

      appeal, are as follows:


              Alisha Williams lived with Parrish Myles, whom she had been
              dating for sixteen years, and their two children, A.L. and D.M.,
              in The Mansards Apartments in Griffith, Indiana. On the
              morning of July 22, 2011, Alisha was running late for work so
              she asked Parrish to take A.L., age eleven, and D.M., age five or
              six, to day care. Around 9:30 a.m., Parrish put the children in

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 2 of 27
        his Chevrolet Tahoe. A.L. got in the front seat, and D.M. got in
        the back seat. Parrish went to put trash in the dumpster when a
        bronze-colored Toyota Camry with Illinois license plates and
        registered to Davis pulled up.


        The occupants of the Camry called out to Parrish, and Parrish
        walked up to the passenger side of the car and briefly talked to
        the two men in the car. As Parrish walked away from the
        Camry, a shot was fired from inside the car, hitting him. A man
        in a red-colored shirt, white tennis shoes, and hat exited the
        driver’s side of the Camry and shot Parrish again. A man in a
        white shirt stayed in the car and slid over to the driver's seat. The
        man in the red-colored shirt and white tennis shoes got in the
        passenger seat, and the man in the white shirt drove away. A.L.
        witnessed the entire incident. Other residents in the apartment
        complex heard the shots and called 911. One of the residents,
        Rosa Orphey, had just finishing drinking tea on her patio when
        she saw the man in the red-colored shirt shoot Parrish while he
        was on the ground. Another resident, Krystle Gavin, was putting
        antifreeze in her car when she heard the shots. Krystle said that a
        man in a red-colored shirt had a gun and that his skin was darker
        than the man’s skin in the car.


        Griffith Police Department Officer Robert Carney responded to
        reports that a gold sedan was leaving the scene of a shooting.
        Officer Carney quickly located the car, which was stopped at a
        red light at the intersection of Ridge Road and Broad Street.
        Officer Carney noticed the car because a man was standing
        outside the passenger side, walked around the car, and entered
        the driver’s seat, thereby switching drivers. Although the man
        was wearing a light-colored shirt instead of a red-colored shirt,
        the man was wearing white tennis shoes, the same color as the
        shooter’s shoes. Officer Carney activated his emergency lights.
        The man, however, refused to stop, and a high-speed chase
        ensued with the Camry reaching speeds of over 100 miles per
        hour, running red lights, and weaving through traffic in

Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 3 of 27
        residential areas and on I-80/94. At one point, the driver
        stopped and dropped off the man in the white shirt, who was
        wearing black tennis shoes. He disappeared along the Little
        Calumet River carrying a red-colored shirt and a red hat as the
        driver sped off. Officer Carney continued his pursuit of the
        driver until Officer Carney crashed his car into a tree in a
        residential area. Another officer continued chasing the driver,
        and the chase ended when the driver, identified as forty-five-year-
        old Davis from Chicago, crashed his Camry head-on into another
        police officer’s car. The police collected Davis’s clothing, which
        included a light-colored shirt and white tennis shoes. The
        passenger of the car who had been dropped off at the Little
        Calumet River, Davis’s twenty-nine-year-old nephew, Lyndon
        Davis (“Lyndon”), also from Chicago, was eventually
        apprehended.


        Police responded to the scene of the shooting within minutes to
        find Parrish lying face down in the roadway. Parrish was
        breathing and moving slightly but quickly lost his pulse. An
        ambulance transported Parrish to the hospital. Parrish was shot
        four times and died from multiple gunshot wounds. A copper
        bullet jacket was collected at the scene and bullet fragments were
        collected from Parrish’s body. It was determined that the bullet
        fragments and casings were fired from the same weapon, which
        was never recovered. Police recovered a red-colored shirt and a
        red hat on the river bank near the area where Davis had dropped
        off Lyndon during the chase.


        The State charged Davis with murder and felony murder, but the
        State dismissed the felony-murder charge before trial. A five-day
        jury trial began in January 2012. The State’s theory at trial was
        that Davis was the shooter; the State uncovered no motive for the
        murder. Davis’s theory was that “he had nothing to do with the
        killing of Parrish Myles,” he did not have an agreement with
        Lyndon, and the “only thing” he was guilty of was “fleeing from


Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 4 of 27
              the police.” Tr. p. 762-63. The trial court instructed the jury on
              accomplice liability. The jury found Davis guilty of murder.


      Davis v. State, No. 45A03-1203-CR-145, slip op. at 1-2 (Ind. Ct. App. 2013),

      trans. denied.


[4]   The trial court sentenced Davis to serve sixty-five years. He appealed,

      claiming: (1) the trial court erred in instructing the jury; (2) the prosecutor

      committed misconduct; (3) the evidence was insufficient to sustain his

      conviction; and (4) his sentence was inappropriate in light of the nature of the

      offense and his character. A panel of this Court rejected Davis’ claims and

      affirmed his conviction and sentence. See id. at 9.


[5]   On November 8, 2013, Davis filed a pro se petition for post-conviction relief

      with a supporting memorandum. The post-conviction court ordered the State

      to file an answer on or before January 7, 2014. The State belatedly filed an

      answer on January 15, 2014. According to Davis, he did not receive a copy of

      the answer and was unaware one had been filed. Next, Davis requested

      representation by the Office of the State Public Defender (SPD). The post-

      conviction court forwarded Davis’ petition to the SPD, who ultimately declined

      to represent Davis.


[6]   On February 16, 2016, Davis moved to withdraw without prejudice his petition

      for post-conviction relief. The post-conviction court granted his motion and

      deemed the petition withdrawn without prejudice.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 5 of 27
[7]   On April 28, 2016, Davis refiled his petition for post-conviction relief with a

      supporting memorandum. He later sought and received permission to amend

      the petition, raising claims of ineffective assistance of trial and appellate

      counsel. On January 26, 2017, an attorney filed an appearance on behalf of

      Davis. Counsel filed an “Addendum” to Davis’ pro se petition for post-

      conviction relief. Appellant’s App. Vol. 2, p. 5. On June 6, 2017, the post-

      conviction court determined the Addendum should not have been filed, ruling

      that a petition for post-conviction relief may only be amended. The post-

      conviction court set a deadline of June 28, 2017, for Davis to amend his

      petition, but he did not file any amendments.


[8]   The post-conviction court held an evidentiary hearing on July 28, 2017. Next,

      the parties filed proposed findings of fact and conclusions of law. On February

      6, 2018, the post-conviction court issued findings of fact and conclusions of law,

      denying Davis’ petition for post-conviction relief. Davis’ counsel subsequently

      moved to withdraw from the case, and the post-conviction court granted the

      motion. Davis filed a pro se motion to correct error, which the post-conviction

      court denied. This appeal followed.


                                    Discussion and Decision
                                        I. Standard of Review
[9]   Post-conviction procedures do not afford a petitioner with a super-appeal, and

      not all issues are available for consideration. Lindsey v. State, 888 N.E.2d 319,

      322 (Ind. Ct. App. 2008), trans. denied. Instead, subsequent collateral challenges


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 6 of 27
       to convictions must be based on grounds enumerated in the post-conviction

       rules. Id. If an issue was known and available, but not raised on direct appeal,

       it is waived. Id. If it was raised on appeal, but decided adversely, it is barred by

       the doctrine of res judicata. Id.


[10]   A petitioner for post-conviction relief has the burden of establishing the grounds

       for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

       When appealing the denial of a petition for post-conviction relief, the petitioner

       is appealing a negative judgment. Rogers v. State, 827 N.E.2d 78, 80 (Ind. Ct.

       App. 2005), trans. denied. Accordingly, the petitioner must convince us that the

       evidence, as a whole, leads unerringly and unmistakably to a decision opposite

       that reached by the post-conviction court. Id. We accept the post-conviction

       court’s findings of fact unless they are clearly erroneous, but we do not defer to

       the post-conviction court’s conclusions of law. Martin v. State, 740 N.E.2d 137,

       139 (Ind. Ct. App. 2000), trans. denied. We examine only the probative

       evidence and reasonable inferences that support the post-conviction court’s

       determination, and we do not reweigh the evidence or judge witness credibility.

       Id.


[11]   In this case, the judge who presided over the post-conviction hearing was also

       the judge who conducted Davis’ original trial. We afford the post-conviction

       court’s findings and judgment “greater than usual deference” in this

       circumstance. McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct. App. 2012),

       trans. denied. “[I]n such a case, the judge is uniquely situated to assess whether

       trial counsel’s performance fell below an objective standard of reasonableness

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 7 of 27
       and whether, but for counsel’s unprofessional conduct, there was a reasonable

       probability that a different verdict would have been reached.” Hinesley v. State,

       999 N.E.2d 975, 982 (Ind. Ct. App. 2013), trans. denied.


[12]   Further, we note that although Davis is proceeding pro se and lacks legal

       training, we hold pro se litigants to the same standards as trained counsel.

       Pannell v. State, 36 N.E.3d 477, 485 (Ind. Ct. App. 2015), trans. denied.


       II. Due Process, Ex Parte Communications, and Untimeliness
[13]   Davis claims the post-conviction court erroneously overlooked the State’s

       failure to provide him with a copy of its belated answer to his original petition

       for post-conviction relief. He claims he did not learn of the State’s answer until

       the evidentiary hearing on his refiled petition for post-conviction relief. Davis

       concludes the State’s failure to serve the answer upon him renders the State’s

       answer an improper ex parte communication that deprived him of his right to

       due process of law under the federal and state constitutions.


[14]   The State correctly notes that Davis did not raise his due process constitutional

       claims during proceedings in the post-conviction court. He did not present the

       due process claims during the evidentiary hearing or in his proposed findings

       and conclusions. He may not present those claims on appeal for the first time.

       See Walker v. State, 843 N.E.2d 50, 57 (Ind. Ct. App. 2006) (claims raised for the

       first time on appeal are waived), trans. denied.


[15]   Davis did argue to the post-conviction court that he was entitled to prevail

       because the State’s failure to timely file its answer to his original petition, along
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 8 of 27
       with its failure to send him a copy of its answer, amounted to a default against

       his claims. He has failed to include a copy of the State’s answer in his

       Appellant’s Appendix. In any event, Davis fails to recognize that he withdrew

       his original petition for post-conviction relief without prejudice on February 16,

       2016, and subsequently filed a new petition. The proceedings on his original

       petition were thus ended at his request. Davis does not explain how any

       procedural shortcomings in the former post-conviction proceeding carried over

       to the proceedings on his refiled petition for post-conviction relief.


[16]   Further, in his Appellant’s Brief, Davis does not cite any authority for the

       proposition that the State’s failure to timely respond to his petition for post-

       conviction relief and/or serve a copy of the answer on him results in him

       prevailing by default on the claims set forth in his petition for post-conviction

       relief. Each contention in an appellate brief “must be supported by citations to

       the authorities . . . .” Ind. Appellate Rule 46(A)(8)(a).


[17]   In any event, post-conviction courts are vested with discretion in permitting

       documents to be filed despite untimeliness or defects in service. See, e.g.,

       Rondeau v. State, 48 N.E.3d 907, 914 (Ind. Ct. App. 2016) (post-conviction court

       did not err in allowing State to file signed discovery responses after the due date

       had expired; petitioner failed to demonstrate prejudice from the decision), trans.

       denied. We will not address this claim further.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 9 of 27
                III. Scope of Post-Conviction Witness Questioning
[18]   Davis claims the post-conviction court abused its discretion during the post-

       conviction evidentiary hearing by sustaining the State’s objection to his

       questioning of his former appellate counsel. Specifically, he claims the post-

       conviction court should have allowed him to continue questioning counsel

       about counsel’s understanding of the ballistics evidence in Davis’ case. The

       admission or exclusion of evidence is within the sound discretion of the post-

       conviction court. Badelle v. State, 754 N.E.2d 510, 521 (Ind. Ct. App. 2001),

       trans. denied. We will not disturb a post-conviction court’s evidentiary ruling

       unless the post-conviction court has abused its discretion. Id. An abuse of

       discretion occurs when the trial court’s decision “is clearly against the logic and

       effect of the facts and circumstances and the error affects a party’s substantial

       rights.” Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013).


[19]   The following discussion occurred at the post-conviction evidentiary hearing

       during Davis’ questioning of his former appellate counsel, Mark Bates:


               Q.       Mr. Bates, do you remember Henry Hatch, the crime lab
                        examiner?


               A.       I don’t remember his specific testimony. I do recall the
                        name as being a firearm’s [sic] examiner, I think.


               Q.       Do you recall him saying that copper jacket fragments
                        were found at the crime scene, but you stated casings were
                        found? Do you remember that?



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 10 of 27
        A.       No.


        Q.       If you search for casings that are associated with a
                 weapon, does that normally come back associated with the
                 shell the bullet comes out of?


        A.       I’m no expert in that. I think there can be a link, but I
                 can’t say that with any certainty.


        Q.       If you were told that only casings were found at the scene
                 of the crime, what would your thoughts be?


        [State]:                  Judge, I’m going to object as to relevance.


        [PCR Court]:              How is it relevant?


        [Davis]:                  Mr. Appellate Counsel put that in his brief as
                                  a statement of fact, Judge.


        [PCR Court]:              Is it raised as an issue in the PCR?


        [Davis]:                  I’m sorry, Your Honor?


        [PCR Court]:              Is it raised had [sic] as an issue in the PCR?


        [Davis]:                  I believe it has been, yes, Judge.


        [PCR Court]:              Can you direct the State to where it’s at?


        [State]:                  Your Honor, I don’t remember that being in
                                  the PCR. In fact, most of the argument is
                                  directed toward trial counsel.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019       Page 11 of 27
        [Davis]:                  My client raised the ineffective issue of
                                  appellate counsel, but you mean the specific
                                  issue?


        [PCR Court]:              They have to put 8A, and 9A or B, whatever,
                                  has to have specific facts of ineffective
                                  assistance, sure.


        [Davis]:                  You mean regarding the casings versus the—


        [PCR Court]:              Yes. More importantly, was there an issue?
                                  Was this relevant to one of the issues whether
                                  it was fragments or casings in the appeal. Do
                                  you recall?


        [Witness Bates]:          What I do recall, Your Honor, is that the gun
                                  was never recovered, but I don’t believe there
                                  was any issue about if those fragments could
                                  be traced to a specific gun. I believe the
                                  murder weapon was never recovered.


        [PCR Court]:              So there wasn’t an appellate issue that this
                                  could be relevant to?


        [Witness Bates]:          No. I didn’t deem it to be relevant.


        [PCR Court]:              All right, the relevancy objection is sustained.
                                  Next question?


        [Davis]:                  We have no further questions.


PCR Tr. pp. 65-67.


Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019     Page 12 of 27
[20]   Davis argues the post-conviction court’s ruling was erroneous because his line

       of questioning was directly relevant to an issue he raised in his amended

       petition for post-conviction relief: whether appellate counsel presented an

       “erroneous assertion of the facts.” Appellant’s App. Vol. 2, p. 159. “Evidence

       is relevant if: (a) it has any tendency to make a fact more or less probable than

       it would be without the evidence; and (b) the fact is of consequence in

       determining the action.” Ind. Evid. Rule 401. In general, relevant evidence is

       admissible, and irrelevant evidence is not admissible. Ind. Evid. Rule 402.


[21]   It appears that Bates’ testimony about his understanding of the ballistics

       evidence in Davis’ case tends to make it more or less probable that he

       inaccurately described that evidence in Davis’ direct appeal briefs. Regardless,

       Davis must demonstrate that any error in the post-conviction court’s

       evidentiary ruling hindered his substantial rights. Davis did not explain to the

       post-conviction court, and has not explained in this appeal, what Bates’

       response to his question would have been if the post-conviction court had not

       sustained the State’s objection. He also does not explain how Bates’ answer

       would have supported his claim. Further, it does not appear that Davis has

       been hindered from sufficiently presenting his claim of ineffective assistance of

       appellate counsel, which we address below. We conclude Davis has failed to

       demonstrate reversible error on this point.


                                 IV. Assistance of Trial Counsel
[22]   Davis argues the post-conviction court erred in rejecting his claims of ineffective

       assistance of trial counsel. The standard by which we review such claims is
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 13 of 27
       well established. In order to prevail on a claim of ineffective assistance of

       counsel, a defendant must meet a two-part test, showing: (1) counsel’s

       performance fell below an objective standard of reasonableness based on

       prevailing professional norms; and (2) there is a reasonable probability that, but

       for counsel’s errors, the result of the proceeding would have been different.

       Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005), trans. denied. A

       reasonable probability is a probability sufficient to undermine confidence in the

       outcome. Shanabarger v. State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans.

       denied. The two parts of this test are independent inquiries, and a claim that

       fails to establish both parts must fail. Id.


[23]   A strong presumption exists that counsel rendered adequate assistance and used

       reasonable professional judgment. Thomas v. State, 965 N.E.2d 70, 76 (Ind. Ct.

       App. 2012), trans. denied. In determining strategy and tactics, counsel is

       afforded considerable discretion, and isolated mistakes, poor strategy,

       inexperience, or instances of bad judgment do not necessarily render

       representation ineffective. Id. Further, in order to prove ineffective assistance

       of counsel due to a failure to object, a party must prove that an objection would

       have been sustained if made and, further, that the party was prejudiced by the

       failure. Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001).


                                            A. Motion to Suppress

[24]   Davis first claims that his trial counsel, Lemuel Stigler, should have filed a

       motion to suppress evidence, specifically the clothes that Davis was wearing

       when he was arrested and incarcerated. Davis claims: (1) at the time of his
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 14 of 27
       incarceration in the Lake County Jail, the jail permitted inmates to release

       personal possessions, including the clothes that the inmate was wearing at the

       time of arrest, to persons designated by inmates; (2) Davis filled out a form

       notifying jail officials to release his clothes and other personal property to his

       sister; (3) the jail failed to release his clothes to his sister on August 5, 2011, in

       violation of jail policy; and (4) the jail improperly retained his clothes until

       January 6, 2012, three weeks before trial, when the police obtained a search

       warrant for the clothes. Davis thus argues that the jail “illegally seized” his

       clothes, Appellant’s Br. p. 21, that the seizure prejudiced his defense, and that

       his trial counsel should have sought a ruling that the clothes were inadmissible

       at trial.


[25]   Davis, as the petitioner for post-conviction relief, bore the burden of proving his

       claim. Viewing the facts in the light most favorable to the judgment, Davis

       failed to carry his burden as to whether the jail had a policy of releasing

       inmates’ clothes to the inmates’ designees. Jimmy Purvis, who worked at the

       Lake County Jail when Davis was incarcerated there, testified at the post-

       conviction hearing. Purvis explained that when an inmate fills out a personal

       property release form, “all property is released except for the inmate’s

       immediate clothing, which is what he would wear if he was suddenly released.”

       PCR Tr. p. 56. He further stated, “We never release clothing at all. Due to the

       fact of the nature of them being there, they could be released at any time, we

       always kept pants, shoes, socks, shirts, things of that nature. The property that




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 15 of 27
       would have been returned to the family would have been keys, wallet, IDs,

       things like that . . . .” Id. at 57.


[26]   Davis asked the post-conviction court to take judicial notice of two copies of the

       Lake County Jail’s inmate handbook, which purportedly supported his claim

       that the jail was required to release clothing to an inmate’s designated recipients

       upon request. The post-conviction court noted that the handbooks were revised

       in 2015 and 2017, well after Davis was incarcerated in the jail, and declined to

       take judicial notice of them. Davis cites to no authority demonstrating that the

       trial court erred in refusing to take judicial notice. In any event, both the 2015

       and 2017 handbooks plainly state the jail may retain personal items if they “are

       needed for further investigation and/or to be retained as evidence.” Appellant’s

       App. Vol. 2, pp. 199, 201.


[27]   In summary, Davis failed to establish that the jail acted unlawfully in retaining

       the clothes he was wearing at the time of his arrest, or that the failure to release

       the clothes to his sister rendered the clothes inadmissible as evidence. Davis

       points to testimony by Attorney Stigler that the local public defender’s office

       could have also provided clothing to released jail inmates, but we cannot

       reweigh the evidence. We agree with the post-conviction court that based on

       the evidence presented here, if trial counsel had filed a motion to suppress, it

       would have been denied. Counsel does not perform deficiently by failing to file

       a motion that would have been denied. See Garrett v. State, 992 N.E.2d 710,

       723-24 (Ind. 2013) (trial counsel not ineffective for failing to file motion to

       dismiss; evidence demonstrated counsel would not have prevailed).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 16 of 27
                                       B. Witness Cross-Examination

[28]   Davis next argues Attorney Stigler failed to adequately cross-examine a child

       witness, A.L., about discrepancies between her trial testimony and her

       deposition. Eleven-year-old A.L. had witnessed the murder of Myles, her

       father. Davis characterizes his trial counsel as having a “conflict of interest,”

       Appellant’s Br. p. 27, stating that counsel allowed his compassion for A.L. to

       overwhelm his duty to “zealously represent” Davis. Id. at 22. The post-

       conviction court rejected Davis’ characterization of a conflict of interest,

       determining that counsel’s decisions during cross-examination of A.L. were

       instead based on a “strategic” decision not to alienate the jury against him and

       Davis. Appellant’s App. Vol. 2, p. 221.


[29]   The record supports the post-conviction court’s determination. During the

       original trial, Attorney Stigler used A.L.’s deposition to cross-examine her on

       one topic, pointing out inconsistencies in her statements on the distance

       between Myles’ vehicle and the shooter’s vehicle at the time of the murder.


[30]   Later, while answering questions from the jury, A.L. stated she had been shown

       pictures during her deposition. At that point, the parties approached the bench

       for a conference outside the jury’s hearing. Attorney Stigler told the trial court

       that the parties agreed that A.L. was not shown any photos during the

       deposition, and she misspoke. He further stated that the parties agreed to

       stipulate that she was not shown any photos during the deposition in lieu of

       further examination. Attorney Stigler explained, “I don’t want her to appear to

       be lying and I don’t want it to appear that I’m trying to take advantage of her.”
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 17 of 27
       Trial Tr. Vol. 3, pp. 460-61. After A.L. left the witness stand, the trial court

       told the jury the parties had stipulated that no pictures were shown to A.L.

       during her deposition.


[31]   During the post-conviction hearing, Attorney Stigler testified as follows when

       he was asked about impeaching A.L.:


               These are—with children it’s sort of delicate. You don’t want the
               jury to get—to hate you. To have it in for your client because
               you, as the attorney, are going very, very hard at these children.
               If there were inconsistencies that I was not able to bring out, then
               I probably referred to the deposition, but I’m certain that I was
               careful not to antagonize the jury by really, really going after the
               child.


       PCR Tr. p. 4. He further explained:


               My experience, I’ve done a number of cases where children have
               been witnesses. And it’s my impression that juries do not like,
               regardless of whether—of the status of that particular child
               witness. They do not like you, as an attorney, being very, very
               harsh with the children. So I did what I needed to do in order to
               get out what I thought that I needed. I did not want the jury to,
               let’s say, hate me, and therefore deal very, very harshly with Mr.
               Davis.


       Id. at 41-42.


[32]   Attorney Stigler’s decisions regarding his cross-examination of A.L. were a

       matter of strategy. Obtaining the joint stipulation regarding A.L.’s incorrect

       statement, instead of continuing to cross-examine her directly, achieved

       counsel’s goal—calling into question the validity of A.L.’s testimony—without
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 18 of 27
       potentially alienating the jury against him and Davis. See Tyra v. State, 574

       N.E.2d 918, 924 (Ind. Ct. App. 1991) (trial counsel made strategic decision not

       to object to testimony from arson victims about effect of arson on their lives;

       counsel believed the trial judge would have overruled the objection and thus

       potentially alienated the jury for no benefit), trans. denied. We reject Davis’

       claim that counsel had a conflict of interest. To the contrary, the

       uncontradicted evidence demonstrates Davis’ trial counsel attempted to make

       the best case possible for his client under the circumstances. The post-

       conviction court did not err in rejecting this claim of ineffective assistance.


                              C. Jury Instruction on Accomplice Liability

[33]   Davis claims his trial counsel rendered ineffective assistance by failing to object

       to a jury instruction on accomplice liability. Davis attempted to challenge the

       jury instruction on direct appeal, but this Court determined the issue was

       procedurally defaulted due to trial counsel’s failure to object at trial. Davis, No.

       45A03-1203-CR-145, slip op. at 2. The Court instead considered whether the

       jury instruction amounted to fundamental error, and it concluded the

       instruction did not meet the high bar for such error. Id. at 4. As a result, during

       post-conviction proceedings Davis challenged trial counsel’s failure to object.


[34]   The post-conviction court determined Davis’ ineffective assistance claim based

       on his challenge to the jury instruction was barred by res judicata because this

       Court had addressed the instructional issue in Davis’ direct appeal. We

       disagree. Res judicata applies when: (1) a former judgment was issued by a

       court of competent jurisdiction; (2) the former judgment was rendered on the
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 19 of 27
       merits; (3) the matter now in issue was or could have been determined in the

       prior action; and (4) the controversy adjudicated in the former action must have

       been between the same parties to the present suit or their privies. Dexter v. State,

       991 N.E.2d 171, 175 (Ind. Ct. App. 2013), trans. denied.


[35]   In the current case, Davis’ jury instruction challenge, raised during post-

       conviction proceedings in the context of ineffective assistance of counsel, is

       different than a jury instruction challenge raised on direct appeal in the context

       of fundamental error, and could not have been determined in his prior appeal.

       See Benefield v. State, 945 N.E.2d 791, 805 (Ind. Ct. App. 2011) (“[W]e conclude

       that when a claim of ineffective assistance of trial counsel is based on a failure

       to object, and that error was advanced as fundamental error on direct appeal, a

       finding that the error did not rise to fundamental error does not automatically

       rule out the possibility that the error resulted in prejudice sufficient to establish

       ineffective assistance.”). We now turn to the merits of Davis’ ineffective

       assistance claim.


[36]   The standard of review for jury instructions is well-established:


               Jury instructions should inform the jury regarding the law
               applicable to the facts without being misleading and should
               enable the jury to understand the case and arrive at a just, fair,
               and correct verdict. The manner of instructing the jury lies
               within the sound discretion of the trial court and we will not
               reverse the trial court’s ruling unless the charge to the jury
               misstates the law or is otherwise misleading. Jury instructions
               must be considered as a whole and in reference to each other,
               and even an erroneous instruction will not be reversible error if
               the instructions taken as a whole do not misstate the law or
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 20 of 27
                 otherwise mislead the jury. Before a defendant is entitled to a
                 reversal, he must affirmatively show that the instructional error
                 prejudiced his substantial rights.


       Filice v. State, 886 N.E.2d 24, 37 (Ind. Ct. App. 2008) (citations omitted), trans.

       denied.


[37]   In reviewing a challenge to a jury instruction, we consider: (1) whether the

       instruction is a correct statement of the law; (2) whether there was evidence in

       the record to support giving the instruction; and (3) whether the substance of

       the instruction is covered by other instructions given by the court. Boney v.

       State, 880 N.E.2d 279, 293 (Ind. Ct. App. 2008), trans. denied. Because Davis

       presents this claim in the context of an allegation of ineffective assistance of

       counsel, he must show a reasonable probability that if trial counsel had objected

       to the instruction, the objection would have been sustained. Garrett, 992

       N.E.2d at 723.


[38]   In this case, the trial court’s jury instruction on accomplice liability stated as

       follows:


                 Where two or more persons engage in the commission of an
                 unlawful act; each person may be criminally responsible for the
                 actions of each other person which were a probable and natural
                 consequence of their common plan even though not intended as
                 part of the original plan. It is not essential that participation of
                 any one person to each element of the crime be established.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 21 of 27
               A person who knowingly or intentionally aids, induces, or causes
               another person to commit an offense commits that offense, even
               if the other person:


               1. has not been prosecuted for the offense;


               2. has not been convicted of the offense; or


               3. has been acquitted of the offense.


               To aid under the law is to knowingly aid, support, help or assist
               in the commission of a crime. Mere presence at the scene of the
               crime and knowledge that a crime is being committed are not
               sufficient to allow an inference of participation. It is being
               present at the time and place and knowingly doing some act to
               render aid to the actual perpetrator of the crime.


               The presence of a person at the scene of the commission of a
               crime and companionship with another person engaged in the
               commission of the crime and a course of conduct before and after
               the offense are circumstances which may be considered in
               determining whether such person aided and abetted the
               commission of such crime.


       Trial Tr. Vol. 5, pp. 779-80.


[39]   Davis claims the instruction misstated the law because it told the jury to

       consider his course of conduct before and after the murder but failed to state

       that they should consider his conduct during the murder as well. We disagree

       because other language in the instruction directed the jury to consider Davis’

       acts during the crime. The instruction informed the jury that “mere presence at


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 22 of 27
       the scene” was not enough; the State must prove a defendant was “present at

       the time and place and knowingly doing some act to render aid.” Id. In

       addition, the jury was told it could consider a defendant’s presence at the

       shooting as a circumstance in its determination. The trial court did not abuse

       its discretion in giving the instruction. See Boney, 880 N.E.2d at 294-95

       (determining jury instruction correctly stated the law on accomplice liability;

       instruction did not explicitly state that jury had to determine Boney had the

       mens rea to commit murder, but the instruction, read as a whole, sufficiently

       informed the jury of the required mental state).


[40]   The instruction correctly stated the law. If Attorney Stigler had objected to the

       instruction, the objection would have been properly overruled. Davis has failed

       to demonstrate that he was prejudiced by counsel’s failure to object, and the

       post-conviction court did not err in rejecting this claim of ineffective assistance

       of trial counsel.


                                              D. Collective Impact

[41]   Davis argues that Attorney Stigler’s errors, considered as a whole, amounted to

       ineffective assistance. The cumulative effect of a number of errors can render

       counsel’s performance ineffective. Grinstead v. State, 845 N.E.2d 1027, 1036

       (Ind. 2006). In this case, we have determined that the post-conviction court did

       not err in rejecting Davis’s three individual claims of ineffective assistance of

       trial counsel. It follows that a claim of cumulative ineffective assistance must

       also fail. We affirm the post-conviction court’s rejection of Davis’ claims of

       ineffective assistance of trial counsel.
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 23 of 27
                              V. Assistance of Appellate Counsel
[42]   Davis claims his appellate counsel, Mark Bates, misstated the facts on appeal,

       causing a panel of this Court to erroneously affirm his conviction. The Sixth

       Amendment entitles a criminal defendant to the effective assistance of counsel

       not only at trial, but also during a first appeal as of right. Donnegan v. State, 889

       N.E.2d 886, 892 (Ind. Ct. App. 2008), trans. denied. The standard of review for

       a claim of ineffective assistance of appellate counsel is identical to the standard

       for trial counsel. Walker v. State, 988 N.E.2d 1181, 1190 (Ind. Ct. App. 2013),

       trans. denied. That is, the petitioner must establish unreasonably deficient

       performance by appellate counsel, resulting in prejudice. Id. “When raised on

       collateral review, ineffective assistance of appellate counsel claims generally fall

       into three basic categories: (1) denial of access to an appeal, (2) waiver of

       issues, and (3) failure to present issues well.” Henley v. State, 881 N.E.2d 639,

       644 (Ind. 2008).


[43]   Davis’ claim falls under the third category: an allegation of failure to present

       issues well. In Davis’ direct appeal, Attorney Bates stated once in the twenty-

       eight-page appellant’s brief that “casings” were submitted to ballistics testing.

       Appellant’s App. Vol. 2, p. 76. In the appellee’s brief, the State also referred to

       a “copper bullet jacket” and “casings” being found at the scene. Id. at 107. A

       panel of this Court referred to a “copper jacket bullet” and “casings” found at

       the scene. Davis. No. 45A03-1203-CR-145, slip op. at 2.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 24 of 27
[44]   Davis argues Attorney Bates misstated the facts because no casings were found

       in this case. Instead, he notes the State’s ballistics examiner, Henry Hatch,

       testified at trial that he received “two spent bullet jacket fragments.” Trial Tr.

       Vol. 4, p. 536. Davis claims his attorney’s alleged misstatement amounted to

       deficient performance.


[45]   We reject Davis’ claim on multiple grounds. First, Davis bore the burden of

       explaining, with citations to supporting evidence, the difference between a

       casing and a bullet jacket, and, further, why any misstatement of the facts

       damaged his case. Davis’ appellant’s brief does not include such an

       explanation.


[46]   Second, Davis has failed to demonstrate that any misstatement by counsel

       amounted to unreasonably deficient performance. Davis has never disputed

       that someone shot Myles to death on the day in question, and that ballistics

       evidence was found at the scene. Davis has instead merely claimed that he was

       not involved in the murder. Further, the murder weapon was never found. As

       a result, the ballistics evidence was peripheral to the State’s criminal charge of

       murder against Davis, and it is unclear that counsel’s isolated, one-time

       potentially erroneous description of ballistics evidence under these

       circumstances amounted to deficient performance.


[47]   Third, appellate counsel’s alleged misstatement did not unduly prejudice Davis’

       case. Counsel presented four issues: error in jury instructions, prosecutorial

       misconduct, sufficiency of the evidence, and appropriateness of Davis’


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 25 of 27
       sentence. Of these claims, the ballistics evidence could have been pertinent to

       the sufficiency claim. However, Davis did not discuss the ballistics evidence in

       conjunction with the sufficiency claim, and the Court of Appeals panel did not

       discuss that evidence either. As a result, any misstatements by Davis’ appellate

       counsel did not affect the outcome of his appeal. Put another way, Davis failed

       to show a reasonable probability that the Court of Appeals’ decision in his

       direct appeal would have been different absent any misstatement.


[48]   On a related note, Davis claims the post-conviction court erred in the course of

       ruling on Davis’ claim of ineffective assistance of appellate counsel. The post-

       conviction court determined that on direct appeal, a panel of this Court

       mentioned casings only once in the memorandum decision, and “[t]hat finding

       was not the basis for the appellate court’s resolution of any of the issues –

       including the issue of the sufficiency of the evidence. Any error in failing to

       correct this terminology was harmless, at best.” Appellant’s App. Vol. 2, p.

       223. Davis bore the burden of proving any deficient performance by appellate

       counsel resulted in undue prejudice, and on this issue, he failed to carry his

       burden. The post-conviction court did not err. See Santonelli v. State, 743

       N.E.2d 1281, 1285 (Ind. Ct. App. 2001) (petitioner suffered no prejudice, and

       thus did not receive ineffective assistance of counsel, as a result of appellate

       counsel’s failure to include portions of the trial record in the appellate record

       because the error was harmless), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 26 of 27
                                                 Conclusion
[49]   For the reasons stated above, we affirm the judgment of the post-conviction

       court.


[50]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-556 | April 9, 2019   Page 27 of 27
