Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                                             Dec 03 2013, 5:45 am

before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

SUSAN D. RAYL                                   GREGORY F. ZOELLER
MICHAEL R. SMITH                                Attorney General of Indiana
Smith Rayl Law Office, LLC
Indianapolis, Indiana                           JUSTIN F. ROEBEL
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JEFFREY WATSON,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 29A02-1301-PC-92
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                           The Honorable Daniel Pfleging, Judge
                             Cause No. 29D02-0412-FA-167




                                     December 3, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                   Case Summary and Issues

       Jeffrey Watson appeals the post-conviction court’s denial of his petition for post-

conviction relief, raising the following issues for our review: (1) whether Watson received

ineffective assistance of trial counsel; and (2) whether Watson received ineffective assistance of

appellate counsel. Concluding Watson’s right to effective assistance of counsel was not violated,

we affirm.

                                  Facts and Procedural History

       Many of the facts relevant to Watson’s post-conviction relief petition have been

previously recounted by this court during Watson’s direct appeal:

       Watson and his wife, [Judy], have two daughters, Vi. and Va., and two sons,
       [Allen] and J. When Va. was nine years old, she had a nightmare and went to
       sleep with her parents in their bed. She later awoke and found Watson had his
       fingers in her vagina. Watson took Va. back to her bedroom and again inserted his
       fingers in her vagina. Then Watson asked Va. to touch his penis, but she refused.

       The next night, when Va. was asleep in her room, she again woke to find Watson
       had his fingers in her vagina. Va. held still because she felt like she could not
       move, and she acted as though she were still asleep.

       On another occasion while Va. was nine years old, she was riding with Watson in
       his truck. Watson showed her a magazine that had pictures of naked women who
       were “[t]ouching the[m]selves and touching other girls.” Watson asked Va. to
       touch herself while looking at them. Va. refused.

       On several occasions, the children had lice in their hair. Watson would have the
       girls stand in the shower while he combed the lice out of their hair. Watson
       touched Va.’s breasts while she was in the shower.

       Watson also frequently asked Va. if he could touch her butt. In December 2004,
       when Va. was 13, she tired of Watson’s comments about her butt and decided to
       tell [Judy] everything that had happened. [Judy] took Va., Vi., and [Allen] out of
       the home and made a report to the police. J. was picked up from school, and all
       the children were interviewed at Chaucie’s Place. [Judy] and the children moved
       out of the family home.

       That day, Watson went to the police station looking for his family. Watson was
       informed of the allegations against him, and he made a voluntary statement to the
       police. Watson denied the allegations and also denied that there was pornography
       in the home. Police obtained consent to search the home from [Judy], and they
       found the red crate filled with pornographic magazines under the desk where Va.
                                                2
said it was. The police also found four pornographic VHS tapes and a DVD. Over
3,300 pornographic images were found on the family’s computer.

Ultimately, Watson was charged with four counts of Class A felony child
molesting, one count of Class D felony child solicitation, and one count of Class
D felony conducting a performance harmful to minors.

After Va.’s allegations came to light, [Judy] and the children lived in several
different places, including stays with Va.’s aunt Lisa and aunt Heather.
Eventually, [Judy] and the children went to live with Watson’s mother. At that
time, Watson was living in a trailer on his mother’s property, and Va. saw him
every day.

During the time Va. was living at her grandmother’s house, her parents took her
to meet with Watson’s counsel. At trial, Va. admitted she told defense counsel
“that it was all misunderstood and someone else did it.” However, she explained
her parents told her to tell defense counsel that nothing had happened. She said
she felt scared around her father and felt like she would “rather live on the streets”
than with her grandmother. After the meeting with defense counsel, Va. asked
her aunt Heather whether she would get in trouble if she changed her story.

Watson’s mother and her partner, Joyce, testified on behalf of Watson. Watson’s
mother testified Va. would “lie when the truth came easier.” Joyce testified she
believed Va. made her allegations because she “wanted to party and to [party] she
had to get rid of her father.”

Watson also testified. He admitted he once had a pornography collection, but said
he thought he had gotten rid of it. He acknowledged he would comb lice out of
the children’s hair in the shower. Watson denied ever touching Va.
inappropriately.

Watson apparently had intended to call [Judy], [Allen], and J. as witnesses.
However, prior to trial and in violation of a court order, Watson allowed them to
view the videotape of Va.’s interview at Chaucie’s Place. The State discovered
this violation when deposing the boys. The State moved to exclude the witnesses
as a discovery sanction. The court ruled:

       ... Watson shall be precluded from presenting, at trial, any and all
       testimony of [J., [Allen], and [Judy]] that has been tainted by the
       violation of the Protective Order. Watson may voir dire [J.,
       [Allen], and [Judy]] outside the presence of the jury to determine if
       they have any relevant testimony that has not been tainted by the
       violation of the Protective Order.

Watson did not conduct voir dire of [Judy], [Allen], or J., and none of them
testified at trial.

       The jury found Watson guilty of two counts of Class A felony child
molesting, one count of Class D felony child solicitation, and one count of Class
                                       3
         D felony conducting a performance harmful to minors. The trial court sentenced
         him to thirty years on each Class A felony and three years on each Class D felony,
         with all sentences to be served concurrently.

Watson v. State, No. 29A04-0904-CR-221, slip op. at 1-2 (Ind. Ct. App. Feb. 26, 2010) (citations

and footnotes omitted). Watson’s convictions were affirmed on direct appeal, but his case was

remanded to correct an error in the calculation of credit time. Id. at 7.

         Watson filed his petition for post-conviction relief in February 2011 and filed an

amended petition in July 2011. Watson’s petition claimed ineffective assistance of trial counsel

based on the violation of the trial court’s protective order1 and the exclusion of Judy, Allen, and

J. as testifying witnesses; counsel’s failure to investigate and call additional witnesses; counsel’s

general failure to develop evidence regarding Va.’s character for truthfulness; counsel’s failure

to memorialize Va.’s recantation; and counsel’s failure to rehabilitate Watson after cross-

examination at trial. Watson also alleged ineffective assistance of appellate counsel.

         At an evidentiary hearing, the post-conviction court heard testimony from Watson’s trial

counsel Steve Holt, appellate counsel Amy Higdon, Allen Watson, Heather Landis, Diane

Geibel, Jocelyn Landis, and Watson. Holt testified that he had forgotten about the protective

order surrounding the videotape of Va.’s interview and did not tell Watson about the protective

order when he told Watson to let his family watch the tape. With respect to Judy Watson, Holt

said she would have testified as to Va.’s reputation for dishonesty had she not been excluded.

         Allen, who was also excluded as a sanction for violating the trial court’s protective order,

would have testified that Va. had a reputation for dishonesty. He also would have testified he

overheard a telephone conversation between Watson and Va. during which Va. said “this is why

I did this to you, and because you let Chellis rape me . . . .” Transcript of Post-Conviction Relief

Hearing (“PCR Tr.”) at 104. During cross-examination, Allen was confronted with inconsistent


         1
           The trial court’s protective order directed that the tape of Va.’s interview “may be viewed only by parties,
their counsel and their counsel’s employees, investigators and experts . . . .” Appellant’s Appendix at 104.
                                                          4
statements from a deposition taken prior to Watson’s trial. During that deposition, Allen claimed

he was not aware of Va. ever recanting her allegations against Watson and that he could not

recall Va. ever lying about anything serious.

       Had they been permitted to testify at Watson’s trial, Heather Landis, Jocelyn Landis, and

Diane Geibel would all have testified that Va. had a reputation for dishonesty.

       The post-conviction court entered findings of fact and conclusions of law, and it denied

Watson’s petition, concluding either trial counsel’s performance was not deficient or that any

error had not prejudiced Watson. Specifically, the post-conviction court concluded the jury

would have come to the same conclusion of guilt because evidence had already been presented at

trial regarding Va.’s recantation made to Holt and her reputation for dishonesty. The post-

conviction court noted that the only new evidence would be Allen’s testimony concerning the

phone call he overheard between Watson and Va. However, the post-conviction court concluded

that Allen’s testimony would not be perceived as credible, and thus, its absence from the trial did

not prejudice Watson. The post-conviction court also concluded that Watson’s appellate counsel

was not ineffective.

       Watson now appeals the post-conviction court’s denial of his petition for post-conviction

relief. Additional facts may be provided as necessary.

                                    Discussion and Decision

                                    I. Standard of Review

       A petitioner seeking post-conviction relief bears the burden of establishing grounds for

relief by a preponderance of the evidence. Indiana Post-Conviction Rule 1(5). A petitioner who

is denied post-conviction relief appeals from a negative judgment, which may be reversed only if

“the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached

by the post-conviction court.” Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied,


                                                5
540 U.S. 830 (2003). We defer to the post-conviction court’s factual findings, unless they are

clearly erroneous. Id. at 746.

       The Sixth Amendment’s “right to counsel is the right to the effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson,

397 U.S. 759, 771 n.14 (1970)). To establish a claim of ineffective assistance of counsel, a

convicted defendant must show (1) that counsel’s performance was deficient such that it fell

below an objective standard of reasonableness based on prevailing professional norms and (2)

the defendant was prejudiced by counsel’s deficient performance. Id. at 687. When considering

whether counsel’s performance was deficient, the reviewing court begins with a “strong

presumption” that counsel’s performance was reasonable. Id. at 689. A defendant is prejudiced

if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

       The two prongs of the Strickland test—performance and prejudice—are independent

inquiries, and both prongs need not be addressed if the defendant makes an insufficient showing

as to one of them. Id. at 697. For instance, “[i]f it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice . . . that course should be followed” without

consideration of whether counsel’s performance was deficient. Id.

                                 II. Assistance of Trial Counsel

       Watson argues that he received ineffective assistance of trial counsel based upon

numerous alleged deficiencies. He also claims that the cumulative effect of those deficiencies

amounts to ineffective assistance of counsel. We will address each of Watson’s arguments as to

the effectiveness of trial counsel below.




                                                  6
                  A. Violation of Protective Order and Exclusion of Witnesses

         First, Watson contends that the role his trial counsel played in violating the court’s

protective order and the resulting exclusion of defense witnesses violated Watson’s right to

effective assistance of counsel. Indeed, it is difficult to imagine how trial counsel’s complicity in

violating the trial court’s protective order could be framed as a reasonable trial strategy or action

otherwise reasonable under prevailing professional norms. That said, we side with the post-

conviction court in its conclusion that Watson was not prejudiced—at least within the meaning

of the Strickland test—by the exclusion of Judy, Allen, and J. as potential defense witnesses.

         Initially, we note that the post-conviction court considered only whether Allen’s

exclusion prejudiced Watson, concluding there was no evidence Judy or J. would have been

helpful to Watson at trial. We do not agree with this conclusion, as Holt testified at the post-

conviction hearing that Judy would have testified at trial as to Va.’s reputation for dishonesty.

         Like Judy, Allen would have testified that Va. had a reputation for dishonesty. In

addition, he would have testified to an alleged phone call he overheard between Va. and Watson,

during which Va. said “this is why I did this to you, and because you let Chellis rape me . . . .”

PCR Tr. at 104.       However, at the post-conviction hearing, Allen was confronted with

inconsistent statements he made during a pre-trial deposition where he said he was not aware of

Va. ever recanting her allegations against Watson and that he was not aware of Va. ever lying

about anything serious. The post-conviction court concluded that Allen was not a credible

witness and that the jury would have afforded little weight to Allen’s testimony. The post-

conviction court’s determination as to Allen’s credibility is entitled to deference. Given Allen’s

lack of credibility, we do not believe his testimony is sufficient to undermine the outcome of the

trial.

         With respect to Va.’s reputation for untruthfulness, two defense witnesses—Jo Watson

and Joyce Guinnup—testified at Watson’s trial as to Va.’s reputation for dishonesty and that they
                                              7
believed Va. was lying about her allegations against Watson. And Watson also testified and

maintained his innocence at trial. To the extent that Judy and Allen would have testified as to

Va.’s reputation for untruthfulness, their testimony is largely cumulative. “[F]ailure to call a

witness whose testimony would be cumulative is not ineffective assistance.” Moredock v. State,

540 N.E.2d 1230, 1232 (Ind. 1989).

       Watson urges us not to consider Allen and Judy’s testimony as merely cumulative,

because Va.’s credibility was essential to the State’s case against Watson. Watson also contends

that exclusion of family members who would testify as to Va.’s dishonesty could create the

impression that those members who did not testify were in Va.’s corner, giving the following

hypothetical:

       [O]ut of a family of ten, one family member testifies that another family member
       has a reputation of being a liar, a jury might conclude that eight members of the
       family who did not give similar testimony do not agree, and might question the
       judgment of the one witness to [sic] gave the reputation testimony. If eight
       members of that same family testify that another family member has a reputation
       of being a liar, those same jurors might still believe that the one family member
       did not agree, but would likely question the judgment of the one rather than the
       eight.

Appellant’s Brief at 21. While this argument is plausible in the abstract, we do not believe that it

applies to the circumstances of this case. For starters, two witnesses testified as to Va.’s

dishonesty at trial—in addition to Watson’s testimony, which eliminates the sort of doubt that

might come along with uncorroborated testimony.           And second, Va. admitted on cross-

examination that she would not be surprised to hear family members call her a liar, and she

testified “my whole family has gone against me, so it doesn’t surprise me what they say about

me.” Transcript at 315. Any possibility of the jury speculating in the way Watson’s argument

suggests was nullified by Va.’s testimony on cross-examination.

       In sum, we agree with the post-conviction court’s conclusion that the exclusion of

witnesses as a result of violating the trial court’s protective order did not prejudice Watson.

                                                 8
Therefore, Holt’s complicity in violating the protective order does not amount to ineffective

assistance of counsel.

                     B. Failure to Investigate and Present Additional Witnesses

        Second, Watson argues that Holt delivered ineffective assistance by failing to find and

present additional witnesses at trial. Those witnesses are Watson’s sisters, Heather Landis and

Diane Geibel, and his niece, Jocelyn Landis, all of whom would have testified that Va. had a

reputation for dishonesty.

        Watson also states that Heather Landis and Diane Geibel would have testified that the

deputy prosecutor told Va. that she would get in trouble if she attempted to change her story.

However, the State argues that this evidence is cumulative of Va.’s testimony on cross-

examination, where she admitted to asking Heather Watson whether she would get in trouble if

she changed her story. Moreover, the State argues that the evidence would be inadmissible

hearsay, and Watson offers no theory of admissibility in his reply brief.

        Much like reputation testimony from Judy or Allen, discussed above, reputation

testimony from these additional witnesses would be cumulative of testimony given by other

defense witnesses and by Va. on cross-examination.2 Therefore, the absence of this testimony

did not prejudice Watson.

                              C. Failure to Memorialize Va.’s Recantation

        Third, Watson claims that Holt provided ineffective assistance by failing to memorialize

statements made by Va. at Holt’s office in which Va. recanted her allegations against Watson or

to call a witness to testify to the recantation.




        2
           Watson also argues that additional witnesses testifying as to Va.’s reputation are necessary because one
of the two defense witnesses who testified at trial (Jo Watson) was Watson’s mother, and thus “[t]he jury may have
concluded that [Watson’s] mother was more supportive of [Watson] than of [Va.].” Appellant’s Br. at 20. We fail
to see why the jury would perceive Watson’s sisters or niece to be any less biased in favor of Watson.
                                                        9
         Once again, this evidence would have been cumulative of evidence already presented at

trial.   At trial, Va. admitted to going to Holt’s office and telling him “that it was all

misunderstood and someone else did it.” Tr. at 283. Va. also explained that she had gone to

Holt’s office and recanted because of pressure from her family. The jury was fully aware that

Va. had gone to Holt’s office and told him that her allegations against Watson were not true.

Holt’s failure to memorialize her recantation or call a witness to recount her statements did not

prejudice Watson, as such evidence would only have been cumulative of Va.’s testimony at trial.

See Moredock, 540 N.E.2d at 1232 (failure to present cumulative evidence is not ineffective

assistance of counsel).

                                  D. Failure to Rehabilitate Watson

         Fourth, Watson asserts that Holt was ineffective for failing to rehabilitate Watson

following the State’s cross-examination. Watson believes re-direct examination was necessary

to rehabilitate him after a poor performance during cross-examination. He focuses on one

particular exchange that occurred during his cross-examination in which he testified that he

would not call his children liars:

         [State]: And didn’t you also tell [the detective] repeatedly that you would never
         call your kids liars and specifically that you would not call your daughter a liar?

         [Watson]: That’s true.

         [State]: And that was after he told you what the allegations were?

         [Watson]: Yes.

Tr. at 457.

         The State argues that Watson’s refusal to call Va. a liar would either be perceived by the

jury as incriminatory or as a father who refused, as a general matter, to label any of his children

liars.   We agree and find the latter possibility much more likely.           “Counsel is afforded

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

                                                 10
deference. A strong presumption arises that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” State v. Holmes, 728

N.E.2d 164, 172 (Ind. 2000) (citation omitted), cert. denied, 532 U.S. 1067 (2001). Watson had

already testified at trial that he was innocent, and implicit in his testimony is the charge that Va.

was lying. Trial counsel could have reasonably concluded that re-direct examination would only

attract unnecessary attention to the portion of Watson’s cross-examination recounted above or

even cause the jury to think that Watson’s counsel was concerned that the testimony was more

incriminatory that it actually was.

        Given the deference owed to an attorney’s strategic trial decisions, we cannot say that

Holt’s failure to rehabilitate Watson concerning the testimony discussed above constituted

deficient performance.

                                        E. Cumulative Errors

        Finally, Watson argues that even if none of the individual errors alleged constituted

ineffective assistance, the totality of errors made by Holt entitles Watson to a successful

ineffective assistance claim. Indeed, “while each error of counsel individually may not be

sufficient to prove ineffective representation, an accumulation of such failures may amount to

ineffective assistance.” Smith v. State, 511 N.E.2d 1042, 1046 (Ind. 1987) (citation omitted).

        However, as discussed above, any instance of deficient performance by trial counsel

resulted only in a failure to admit cumulative evidence at trial. We cannot conclude that the

combined effect of failing to submit cumulative evidence at trial amounts to ineffective

assistance of trial counsel.

                               III. Assistance of Appellate Counsel

        Lastly, Watson contends that he received ineffective assistance of appellate counsel.

Specifically, Watson believes that appellate counsel was ineffective for failing to argue the trial


                                                 11
court’s sanction excluding witnesses was an abuse of discretion because it was unrelated to the

original purpose of the trial court’s protective order. By contrast, appellate counsel argued on

direct appeal that the sanction was unduly punitive.

        As our supreme court has pointed out, there are three basic categories of alleged appellate

counsel ineffectiveness: (1) denying access to an appeal; (2) failure to raise an issue on appeal;

or (3) failure to adequately present an issue despite raising the issue on appeal. Bieghler v. State,

690 N.E.2d 188, 193-95 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998).         Watson’s argument

falls under the third category. “[A]n ineffectiveness challenge resting on counsel’s presentation

of a claim must overcome the strongest presumption of adequate assistance. . . . Relief is only

appropriate when the appellate court is confident it would have ruled differently.” Id. at 196. On

direct appeal, this court held that the trial court’s sanction was not an abuse of discretion,

applying the framework from Wisehart v. State, 491 N.E.2d 985 (Ind. 1986) in deciding whether

the “most extreme sanction of witness exclusion” was appropriate. See Watson, No. 29A04-

0904-CR-221, slip op. at 4-5.        We have no reason to believe the court would have held

differently had the issue been framed as Watson now desires. Because appellate counsel’s

presentation of issues on appeal is entitled to strong deference and because we are not confident

that this court would have ruled differently on direct appeal, we cannot say appellate counsel was

ineffective.

                                            Conclusion

        Concluding Watson’s right to effective assistance of counsel was not violated at either

the trial or appellate level, we affirm.

        Affirmed.

RILEY, J., and KIRSCH, J., concur.




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