Anthony T. Williams v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 21, 2020
• Docket: 20A-PC-998
• Status: Published

Opinion

FILED Dec 21 2020, 9:52 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Meggan E. Smith Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Evan M. Comer Andrew A. Kobe Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony T. Williams, December 21, 2020 Appellant-Petitioner, Court of Appeals Case No. 20A-PC-998 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Respondent. Judge The Honorable Kathleen Sullivan, Magistrate Trial Court Cause No. 45G01-1807-PC-10

Riley, Judge.

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 1 of 35 STATEMENT OF THE CASE [1] Appellant-Petitioner, Anthony Williams (Williams), appeals the post-

conviction court’s denial of his petition for post-conviction relief.

[2] We affirm.

ISSUES [3] Williams presents this court with two issues, which we restate as:

(1) Whether he was denied the effective assistance of Trial Counsel due to her cross-examination of a witness that opened the door to inculpatory evidence; and

(2) Whether he was denied the effective assistance of Appellate Counsel who chose not to challenge the trial court’s admission of the inculpatory evidence.

FACTS AND PROCEDURAL HISTORY [4] In the fall of 2013, Aja Jester (Jester) spent time with her friend Damian Reedus

(Reedus), whom she would occasionally lend her white passenger van. Reedus

was almost always accompanied by his friend Williams. Acquaintances of

Reedus and Williams described the closeness of their friendship as being like

brothers. On December 1, 2013, Jester agreed to lend Reedus her van. Jester,

Reedus, and Williams spent time together on December 1, 2013, after which

Reedus and Williams dropped Jester off at her home in Gary, Indiana. Reedus

had promised to return the van to Jester by 5:00 p.m. that day, but he and

Williams did not arrive at Jester’s home until the early morning hours of

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 2 of 35 December 2, 2013. Jester drove Reedus and Williams back to Reedus’ house,

stopping for gas along the way. Reedus was seated in the front passenger seat,

and Williams was seated in a captain’s chair directly behind Jester. After they

reached Reedus’ home, Williams stated that he had changed his mind and

wished to be driven to his own home.

[5] Shortly after Jester pulled away to drive the short distance to Williams’ home,

she heard two gunshots as Williams shot Reedus twice in the head, killing him.

She turned and asked Reedus what she had heard. Receiving no response,

Jester turned to look at Williams. Williams then shot Jester in the neck. Jester

was gravely wounded but did not die. Jester managed to put the van in park.

Other facts pertaining to Williams’ offenses as found by this court on direct

appeal are as follows:

Williams then pulled Jester out of the van, straddled her, pointed the gun at her face, and told her she had to die because she had seen his face. Although Williams pulled the trigger twice, the gun failed to fire. Jester then managed to run away, and Williams drove away in the van.

Williams v. State, 86 N.E.3d 185, 186 (Ind. Ct. App. 2017), trans. denied. Jester

ran to a nearby home, where she encountered Andrew Moore (Moore) and

called 911. In her 911 call, Jester identified Williams as the person who had

shot her.

[6] Later that morning, Reedus’ friend Cassandra Warmack (Warmack) and the

mother of one of his children, Shaumbria Samuels (Samuels), picked up

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 3 of 35 Williams so that they could search for Reedus together. Samuels spotted

Jester’s van abandoned with Reedus’ body slumped over in the front passenger

seat. Williams placed a call to 911 but left before the police arrived. Warmack

went to the police station to provide a statement. While she was waiting for

officers to interview her, Williams called her on her cell phone. During the call,

Williams initially denied being with Jester and Reedus. When Warmack

mentioned that Jester had told the police that Williams had pumped gas into

her car just before the shooting, Williams responded that Jester was lying and

that she had pumped her own gas.

[7] Jester’s van was searched. No fingerprints of evidentiary value were found

inside or outside the van, and Williams’ DNA was not found on any of the

items recovered from the van. Four spent shell casings from a .38 caliber

weapon were found in the van. Beginning at 6:42 a.m. on December 2, 2013,

Jester’s sister, Tasharra Jester (Tasharra), received a series of phone calls from

Williams. In one call, Williams simply whispered, “I’m sorry.” (Transcript

Vol. XI, p. 180). In another call, Tasharra asked Williams why he had killed

her sister, and Williams responded, “Your sister not dead [sic].” (Tr. Vol. XI,

p. 185).

[8] On December 3, 2013, following neck surgery, Jester was released from the

hospital and gave a statement to the lead detective, Lorenzo Davis (Detective

Davis) of the Gary Police Department (GPD), in which she identified Williams

as the person who had shot her and Reedus. Jester reported that Williams had

shot her with a gun that had a cylinder or circular part and that, after the gun

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 4 of 35 jammed, he had poured the bullets from the gun out into his hand. On

December 4, 2013, Williams contacted his acquaintance Stephen Johnson

(Johnson) and asked if he could stay with him. Johnson declined but found

Williams a room at the Mosley Hotel in Gary and drove him there. Before

Williams got into Johnson’s car, Johnson asked Williams if he had any

weapons. Williams denied that he was armed, and Johnson drove him to the

hotel. Upon arrival, Williams told Johnson that he had no identification, so

Johnson used his own identification to rent a room for Williams. Johnson

escorted Williams to the rented room, where he saw that Williams had a small

black gun. Although Johnson was upset that Williams had lied to him about

being armed, he asked Williams if he was planning on selling the gun.

Williams told Johnson, “No, you don’t want that one.” (Tr. Vol. XI, p. 108).

[9] When Detective Davis initially made telephone contact with Williams, he

denied being with Reedus. Detective Davis uncovered surveillance footage of

Reedus and Williams entering a bar in Gary before Reedus was shot. Both men

appeared to be highly intoxicated. Reedus dropped a large wad of money

which Williams picked up and returned to him.

[10] On December 5, 2013, the State filed an Information, charging Williams with

Reedus’ murder, the attempted murder of Jester, carjacking, aggravated battery,

battery by means of a deadly weapon, battery resulting in serious bodily injury,

and criminal recklessness. Williams was subsequently located by law

enforcement at the Mosley Hotel. On December 6, 2013, officers of the GPD’s

SWAT team, working in conjunction with deputies of the U.S. Marshal’s

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 5 of 35 Service, breached the door of Williams’ hotel room and located him inside.

After Williams was in custody, Detective Davis left the scene to apply for a

search warrant for the hotel room. After Detective Davis left the hotel but

before the search warrant was procured, a black semi-automatic .38 caliber

handgun was found under the mattress in Williams’ room. After the search

warrant was procured and Detective Davis learned of the handgun, he called

crime scene investigator Michael Equihua (Detective Equihua) to the hotel

solely to recover the handgun found in Williams’ hotel room and to take

photographs of the hotel room scene, which Detective Equihua did. Williams’

identification and cell phones were found in the hotel room. On December 7,

2013, Detective Davis interviewed Williams, who stated that he had been

consuming alcohol and had no memory of the relevant timeframe. Despite his

lack of memory, Williams adamantly maintained that he had not killed Reedus.

[11] While Williams was housed in the jail in Lake County, he spoke to fellow

inmate Kent Carr (Carr) three times about witness tampering. Although

Williams never mentioned a specific name, he asked Carr what would happen

if the female star witness in his case did not attend his trial or came up missing.

Williams told Carr that he had a friend “finessing” the woman. (Tr. Vol. XI, p.

69). While Williams was at the jail, a letter was found during an administrative

search of his cell in which he had written the following:

I need you to stand on the bird who’s singing. Feel me? Last thing is 2 nite. I rather for you 2 game her and get some paper outta tha bitch. Convince her not to come to trial and recant her statement. Do what you got to do so she will not show and so

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 6 of 35 she will not be able 2 be contacted when it’s time to go to the box.

(Tr. Vol. X, p. 92). After this letter was intercepted, Williams’ jailhouse writing

privileges were revoked. Thereafter, Williams asked inmate Jason Kidd (Kidd)

for writing materials. Williams told Kidd about the first letter that had been

found and stated that the “little bird” was the only strong evidence the State

had against him. (Tr. Vol. XII, p. 59). Williams commented to Kidd that “he

had already . . . tried to whack her, but he fucked up and hit her in the neck.”

(Tr. Vol. XII, p. 59). A second letter sent by Williams was intercepted by jail

personnel in which Williams mentioned his then-current trial date and told the

addressee that “I need you to stop or finesse the lil bird . . . Just know if you

perform properly for me, I’ll return the favor.” (Tr. Vol. X, pp. 93-94).

[12] On February 27, 2015, the State entered into a plea agreement with Williams

whereby he would plead guilty to the murder and attempted murder charges

and would receive concurrent terms of fifty-five and thirty years, respectively.

On April 10, 2015, after hearing victim impact testimony from Jester, the trial

court rejected Williams’ plea agreement. The trial court observed that he was

“not comfortable on the 30 years concurrent term, because that gives Mr.

Williams a pass for shooting [Jester].” Id. at 187.

[13] On July 7, 2015, Trial Counsel filed a motion to suppress the handgun that had

been found in Williams’ hotel room, arguing that it had been found pursuant to

an illegal warrantless search. On July 31, 2015, after a hearing, the trial court

denied the motion to suppress. As part of its ruling that the gun evidence was Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 7 of 35 admissible, the trial court found that a U.S. Marshal had lifted the mattress and

discovered the handgun, not an officer of the GPD or the Lake County Sheriff’s

Department; Detective Davis had no knowledge of the gun when he applied for

and was granted the hotel search warrant; and there was no police misconduct

on the part of the GPD to be deterred through application of the exclusionary

rule. The trial court granted Williams’ request to certify its order denying his

motion to suppress for interlocutory appeal, but this court declined to accept

jurisdiction. On January 11, 2016, after the denial of the motion to suppress,

Trial Counsel deposed several officers regarding the discovery of the handgun

and received discovery of dispatch calls made during the investigation. Trial

Counsel filed a second motion to suppress the handgun evidence, arguing that

the handgun had actually been found by an officer of the GPD. On March 3,

2016, the date set for a hearing on Williams’ second motion to suppress the

handgun evidence, Trial Counsel withdrew the motion on Williams’ behalf

based on the State’s agreement not to seek to admit the handgun evidence at

trial.

[14] On April 4, 2016, the same trial court judge who had rejected Williams’ plea

agreement convened Williams’ first jury trial. On April 13, 2016, the trial court

found that the jury was deadlocked and declared a mistrial. On September 8,

2016, Williams moved for a change of judge. The trial court denied Williams’

motion. After Williams’ mistrial, the State obtained DNA testing results

showing that the blood of Andre Woods (Woods), an associate of Reedus and

Williams, was recovered from Jester’s van.

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 8 of 35 [15] On November 28, 2016, the trial court convened Williams’ second jury trial,

which lasted a total of ten days. Trial Counsel pursued a defense strategy of

calling Jester’s credibility into question, highlighting what Trial Counsel argued

was an incomplete and ineffective investigation, and suggesting that others,

including Woods, could have been the culprit. Moore testified about

encountering Jester on December 2, 2015. Jester testified that Williams shot

her and Reedus and identified him in open court. Trial Counsel cross-

examined Jester regarding inconsistencies among her police statement, her

deposition, her first trial testimony, and her second trial testimony regarding the

details of the timing of Williams’ ‘you saw my face’ statement, whether she

jumped or was pulled from her van, whether Moore had been asleep or

standing when she encountered him, and her varying descriptions of the gun as

a revolver or a semi-automatic, among other topics. The coroner testified that

Reedus had been shot twice in the head. Both of those bullets were recovered

from Reedus’ body. Reedus had also been wounded by either one or two

bullets on his left and right thigh.

[16] After the coroner, four other officers involved in the investigation and evidence

collection testified and were cross-examined at length by Trial Counsel,

particularly about items of evidence that could have been collected, or testing

that could have been done, but were not. Trial Counsel’s cross-examination of

evidence technician Captain Milan Trisic (Captain Trisic), who processed

Jester’s van at the police garage, was representative of her style and the breadth

of questioning. After Captain Trisic acknowledged that he had taken no

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 9 of 35 measurements in the van, Trial Counsel asked him individual questions about

whether he had taken measurements of the angles of the van seats as they were

found, the distance between the last bench seat of the van and the front seat, or

between the bucket seats. After showing Captain Trisic photographs of the

interior of Jester’s van, which was strewn with trash and Jester’s family’s

possessions, Trial Counsel individually questioned him about a beer cap, a pack

of cigarettes, a straw, a wrapper in the door panel of the front passenger side, a

possible CD case holder, a green cup, a cup next to the green cup, a cigarette

butt, the location of the shell casings in the van, a blue and orange hat, a cell

phone which Trial Counsel confirmed with the witness had not been swabbed

for fingerprints or DNA, a soft drink can, and a folder containing papers found

in the driver’s side door. Trial Counsel also questioned him about the fact that

police procedure had not been followed when moving the van to the police

garage and about the circumstances surrounding the collection of a shell casing

which tended to show that it had been collected in an unstandardized manner.

[17] The State’s eighth witness was Detective Equihua. During her direct

examination of Detective Equihua, the Deputy Prosecutor honored her

agreement not to elicit any testimony regarding the gun found in Williams’

hotel room. On cross-examination, Trial Counsel questioned Detective

Equihua at length about items in Williams’ hotel room and areas and items that

were not searched, recovered, fingerprinted, or tested for DNA, including a bag

on the nightstand, a black bag on the refrigerator, a pizza box, the remote

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 10 of 35 control, the nightstand, the room’s dresser drawers, and the bathroom. The

following exchange then took place:

Trial Counsel: Okay. Now, if I understand you correctly. It’s your testimony that you, in fact, didn’t do any – didn’t do any of those things. And I mean – by that, I mean looking inside the drawers or inside of bags or anything like that because you had been advised of two different things, one, that a determination had already been made as to who had been in the room?

Det. Equihua: Correct.

Trial Counsel: And then the second reason was because Detective Davis didn’t ask you to?

Det. Equihua: No, ma’am. I was just instructed to take the photographs inside the room and that’s what I did.

Trial Counsel: Okay. So certainly if there was any evidence of exculpatory value – you understand what I mean by that?

(Tr. Vol. VII, pp. 39-40). The Deputy Prosecutor objected, and, outside the

presence of the jury, argued that Trial Counsel was misleading the jury by

creating a false impression that Detective Davis had directed Detective Equihua

to perform a general search of the hotel room when Detective Equihua had only

been called to the scene to collect the handgun and take photographs. The

Deputy Prosecutor had held her objection until she felt that Trial Counsel was

speculating before the jury about places evidence might have been found, such

as the bathroom and the dresser drawers. It was the State’s position that Trial

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 11 of 35 Counsel had opened the door to the gun evidence. In response, Trial Counsel

argued that she had not opened the door through her questioning, as she had

pursued similar lines of questioning through each crime scene investigator and

her questions were merely meant to show that Detective Equihua had

discretion in what evidence to collect from the hotel room. The trial court ruled

that Trial Counsel had created a misleading impression about the nature of

Detective Equihua’s duties at the hotel scene, opening the door to evidence that

the gun was found in the hotel room.

[18] The parties then argued regarding the limits of the remedy necessary to correct

the misimpression, with the Deputy Prosecutor arguing that ballistics testing

evidence was also admissible following the admission of evidence that the gun

was found and Trial Counsel arguing for the evidence to be limited to the fact

that Detective Equihua had been called to the hotel to collect a gun from

Williams’ room. During the extensive argument on the scope of the remedying

evidence, Trial Counsel requested an evidentiary hearing on the second motion

to suppress the handgun because, she argued, without such a hearing, “[t]here is

nothing for the Court of Appeals – when we talk about whether this is a

reversible issue or not, there’s nothing for them to look at.” (Tr. Vol. VII, p.

73). The trial court denied the motion for a suppression hearing. Trial Counsel

represented that she would make an offer of proof with witnesses but did not do

so. Trial Counsel moved for a mistrial, which motion was denied. After

hearing multi-part, extensive argument on remedy evidence, the trial court

further ruled that evidence concerning ballistics testing done on the gun was

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 12 of 35 also admissible, as not allowing that evidence would create a second

misimpression before the jury that the State had failed to investigate the gun

and its possible link to the offenses. When the cross-examination of Detective

Equihua continued, Trial Counsel questioned him about whether he had been

called to the hotel to recover a weapon and if searching other places in the hotel

room would have been to find other evidence apart from the gun. Trial

Counsel also questioned Detective Equihua at length about many items that

could have had DNA or other evidence on them that were not recovered from

Jester’s van, another scene he had been involved in searching and documenting.

[19] After Detective Equihua’s and the SWAT team leader’s testimony was

presented to the jury, Detective Davis testified and was cross-examined by Trial

Counsel for nearly two days regarding the details of the investigation. Trial

Counsel probed Detective Davis about the fact that he had lost his detective’s

file for the case which contained the cell phones found in Williams’ hotel room,

the emergency warrants he used to procure preliminary cell phone data, and

items which he had not turned over to the State or the defense. Trial Counsel

also posed questions about avenues of evidence which Detective Davis had not

explored, including, among many others, attempting to procure surveillance

footage from businesses around the scene of the shooting, the gas station where

the group stopped prior to the shooting, or the bar where Reedus and Williams

had been before the shooting; collecting clothing from Jester and others;

canvassing around Moore’s home; obtaining a registration slip from the Mosley

Hotel; or obtaining Williams’ cell phone GPS information. Trial Counsel also

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 13 of 35 inquired why Detective Davis had returned Jester’s cell phone, which had been

found in her van, without searching it; why he had not investigated the

inconsistencies in the details of Jester’s statements or obtained a copy of her 911

call; why he had not followed up on information he gleaned from Warmack’s

recorded statements when she was alone awaiting her police interview and

Williams called her; and why he had not investigated Samuels or any of the

other people Reedus had reportedly been with prior to his murder. Detective

Davis also admitted on cross-examination that he used the wrong VIN number

on the search warrant application for Jester’s van and that there was a

discrepancy on the scene login/logout sheet about what time he left the scene.

[20] Williams’ police interview was published to the jury during Detective Davis’

testimony. The two letters Williams wrote from jail were also admitted, and a

handwriting expert concluded that it was probable that Williams had written

them. After testimony from the fingerprint examiner and a medical doctor,

Trial Counsel continued to argue that the trial court should not admit any

ballistics testimony, and she filed a motion to reconsider the trial court’s ruling

allowing that evidence to come in which the trial court denied. After the

presentation of the State’s DNA evidence, the Deputy Prosecutor offered the

testimony of the State’s ballistics expert, Lieutenant Henry Hatch (Lieutenant

Hatch). Trial Counsel objected to the admission of the ballistics evidence but

did not offer any specific grounds for her objection. Testing showed that one of

the bullets recovered from Reedus’ body and all of the four spent casings found

in the van were fired by the handgun found in Williams’ hotel room.

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 14 of 35 Lieutenant Hatch was unable to conclude that the other bullet recovered from

Reedus’ body was fired from that gun, but he was certain that the bullet had

been fired from a .38 caliber firearm. Testing also showed that, consistent with

Jester’s testimony, one of the bullets in the magazine of the gun found in

Williams’ hotel room had been struck by the firing pin of the gun but had not

fired. After the presentation of the ballistics evidence, Carr, Johnson, Tasharra,

Warmack, and Kidd testified about their conversations and interactions with

Williams. During Warmack’s testimony, Trial Counsel procured a ruling from

the trial court that evidence that Woods’ car was parked outside Reedus’ house

on the morning of December 2, 2013, was admissible.

[21] During the defense’s case-in-chief, Trial Counsel presented additional evidence

tending to show that the State had not conducted a professional investigation,

Williams had called 911 when he, Warmack, and Samuels had found the van

and Reedus’ body, the jailhouse conversations Carr and Kidd had testified to

would have been impossible if jail policies had been followed, and that Woods’

car had been left in front of Reedus’ home. During her closing remarks, the

Deputy Prosecutor relied upon Jester’s first-hand testimony, the handgun and

ballistics evidence, Williams’ jailhouse letters, and his conversations with Kidd

and Carr in arguing Williams’ guilt. Trial Counsel emphasized the lack of

thoroughness in the investigation, attacked Jester’s, Kidd’s, and Carr’s

credibility, and argued that Woods could have committed the offenses. Trial

Counsel acknowledged that a gun had been found in Williams’ hotel room but

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 15 of 35 argued to the jury that fact did not make a definitive case for his guilt because

the ballistics evidence could not detect who fired a gun.

[22] The jury deliberated for approximately four hours and asked one question

unrelated to either the murder or the attempted murder charges. The jury found

Williams guilty on all counts. The trial court entered judgment of conviction

only on the murder, attempted murder, and carjacking verdicts. On January

12, 2017, the trial court sentenced Williams to an aggregate sentence of 120

years.

[23] Williams pursued a direct appeal of his convictions. Appellate Counsel

presented one argument on appeal, namely, that the trial court erred when it

denied Williams’ motion for change of judge between his first and second trials.

On October 13, 2017, another panel of this court concluded that Williams’

motion for change of judge had not been timely filed and that the trial court

judge was not required to recuse himself sua sponte because he had not

demonstrated any actual bias or prejudice against Williams in rejecting the plea

agreement. Williams, 86 N.E.3d at 189. Accordingly, the court affirmed

Williams’ convictions. Id.

[24] Williams filed a pro se petition for post-conviction relief which was amended on

March 12, 2019, after Post-conviction Counsel appeared. In his petition,

Williams alleged that Trial Counsel was ineffective for opening the door to the

handgun evidence and Appellate Counsel was ineffective for failing to

challenge the trial court’s ruling admitting the handgun and ballistics evidence

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 16 of 35 in response to Trial Counsel opening the door. On June 20, 2019, the post-

conviction court held a hearing on Williams’ petition. The post-conviction

court took judicial notice and/or admitted into evidence the record on direct

appeal of Williams’ second jury trial. Post-conviction Counsel offered into

evidence the transcripts of Williams’ mistrial, but the State objected on

relevancy grounds. The post-conviction court sustained the State’s objection,

excluded the mistrial transcripts, but ultimately allowed Williams to file the

mistrial transcripts as an offer of proof in the post-conviction proceedings.

[25] Trial Counsel testified at the post-conviction hearing. Trial Counsel, who was a

former deputy prosecutor, had represented defendants in over forty felony trials,

ten of which were murder trials. Trial Counsel had filed the second motion to

suppress the handgun evidence after deposing officers involved in the

investigation and after concluding that there was evidence contradicting the

trial court’s suppression finding that a U.S. Marshal had found the gun at issue.

Trial Counsel testified that her trial strategy had been to demonstrate to the jury

that there was insufficient evidence that Williams had been the shooter and to

highlight an allegedly incomplete and inadequate investigation by law

enforcement. She had intended her cross-examination of Detective Equihua to

demonstrate to the jury that there had been multiple pieces of evidence in the

motel room that had not been collected or investigated. According to Trial

Counsel, “[a] lot” of her strategy was to attack the police investigation, “so it

really played into our defense.” (PCR Transcript p. 38). Trial Counsel

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 17 of 35 acknowledged that “we did not have a ruling on the second hearing, there was

nothing in the record to preserve the appeal right.” (PCR Tr. p. 39).

[26] Appellate Counsel, who had been practicing law since 1975, also testified at the

post-conviction hearing. During his time in private practice and his tenure with

the public defender’s office since 2004, Appellate Counsel had prosecuted

between fifty and 100 appeals. Appellate Counsel had assisted Trial Counsel

during the second trial in crafting a strategy to address the opening of the door

to the handgun evidence. After Williams was convicted and Appellate Counsel

received the appeal, he reviewed the record and determined that the issues of

whether Trial Counsel had opened the door and whether the trial court’s

admission of the handgun evidence had exceeded the scope of the evidence

necessary to remedy the opening of the door had not been preserved. Appellate

Counsel based that conclusion on his determination that, because Trial Counsel

had withdrawn the second motion to suppress, there was no trial court ruling

that the handgun evidence was inadmissible; the State had not conceded that

the handgun evidence was constitutionally infirm, but, rather, had agreed not to

introduce the evidence out of ethical concerns; after the trial court had denied a

hearing on the second, in-trial motion to suppress, Trial Counsel had offered to

make an offer of proof but then did not; and Trial Counsel had argued in the

trial court that without a ruling the issue would not be preserved for appeal, a

position that Appellate Counsel felt he could not reverse on appeal. Appellate

Counsel had also considered the facts that Trial Counsel had never re-asserted

the grounds for the first motion to suppress or incorporated any of the evidence

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 18 of 35 from the first motion to suppress into the trial record and that, when the cross-

examination of Detective Equihua finally resumed, Trial Counsel had

questioned him in depth about the handgun, which Appellate Counsel thought

weighed in favor of waiver. Lastly, Appellate Counsel’s review of the trial

record revealed that, when the State offered photographs of the handgun during

re-direct examination of Detective Equihua, Trial Counsel had not objected on

specific grounds. It was Appellate Counsel’s opinion that the additional

evidence Trial Counsel had developed from deposing the officers involved in

the investigation about who found the handgun and receiving discovery about

radio dispatches contemporaneous to the discovery of the handgun needed to

be presented in an offer of proof in order to preserve the issue.

[27] On April 7, 2020, the post-conviction court denied Williams’ petition. As to

Williams’ claim that Trial Counsel had been ineffective, the post-conviction

court found that Williams had failed to show that Trial Counsel’s performance

fell below an objective standard of reasonableness given Trial Counsel’s

experience as a trial attorney, her vigorous cross-examination of the State’s

witnesses in furtherance of her trial strategy to show the insufficiency of the

evidence and poor police investigation, her strenuous efforts to argue to the trial

court that she had not opened the door to the handgun evidence, and her efforts

to preserve the issue of the admission of the handgun evidence for appeal. The

post-conviction court found that Williams had also failed to demonstrate that

he had been prejudiced by Trial Counsel’s performance in that other substantial

evidence supported his guilt, namely the testimony of Jester, Tasharra,

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 19 of 35 Johnson, Carr, and Kidd as well as evidence that Williams had written the

“stand on the bird” and “last thing is 2 nite” letter. (Tr. Vol. X, p. 92). Given

this evidence, the post-conviction court concluded that Williams had failed to

show that, despite the claimed error by Trial Counsel, the outcome of his trial

would have been different. The post-conviction court additionally rejected

Williams’ argument that the fact that his first trial had resulted in a mistrial

should be considered as evidence of prejudice resulting from Trial Counsel’s

performance because there was no evidence regarding why the jury failed to

reach a decision and, thus, any reasons suggested by Williams or the State were

purely speculative.

[28] The post-conviction court also denied Williams relief on his ineffective

assistance of appellate counsel claim, concluding that Williams had failed to

make the required showings that Appellate Counsel’s performance was below

professional norms or that Williams had been prejudiced. In support of its

performance conclusion, the post-conviction court found that Appellate

Counsel was experienced, had reviewed the trial record, and had made the

decision that the only viable issue for direct appeal was the change of judge

issue. The post-conviction court found that Appellate Counsel was aware of

the handgun evidence issue but that Appellate Counsel had determined that the

issue had not been properly preserved for appeal. In support of the prejudice

prong of its analysis, the post-conviction court found that even if the handgun

evidence issue had been properly preserved and challenged on appeal, the

outcome of Williams appeal would not have been different because there was

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 20 of 35 nothing in the record suggesting that the trial court had abused its discretion in

admitting the evidence. The post-conviction court also found that, due to the

substantial evidence of Williams’ guilt apart from the handgun evidence, any

error in the admission of the handgun evidence would likely been found to have

been harmless on direct appeal.

[29] Williams now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Standard of Review

[30] Williams contends that the post-conviction court erred when it concluded that

he received the effective assistance of trial and appellate counsel. Petitions for

post-conviction relief are civil proceedings in which a petitioner may present

limited collateral challenges to a criminal conviction and sentence. Weisheit v.

State, 109 N.E.3d 978, 983 (Ind. 2018). In such a proceeding, the petitioner

bears the burden of establishing his claims by a preponderance of the evidence.

Id. When a petitioner appeals from the denial of his petition for post-conviction

relief, he stands in the position of one appealing from a negative judgment.

Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). To prevail on appeal from the

denial of post-conviction relief, the petitioner must show that the evidence “as a

whole leads unerringly and unmistakably to a conclusion opposite that reached

by the [PCR] court.” Id. In addition, where a post-conviction court makes

findings of fact and conclusions of law in accordance with Indiana Post-

Conviction Rule 1(6), we do not defer to its legal conclusions, but we will

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 21 of 35 reverse its findings and judgment only upon a showing of clear error, meaning

error which leaves us with a definite and firm conviction that a mistake has

been made. Id.

II. Strickland

[31] We evaluate ineffective assistance of trial and appellate counsel claims under

the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). To

prevail on such a claim, a petitioner must show that “1) his counsel’s

performance was deficient based on prevailing professional norms; and 2) that

the deficient performance prejudiced the defense.” Weisheit, 109 N.E.3d at 983

(citing Strickland, 466 U.S. at 687). In order to demonstrate sufficient prejudice,

the petitioner “must show that there is a reasonable probability that, but for his

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. (citing Strickland, 466 U.S. at 694). A reasonable probability is

one that is sufficient to undermine confidence in the outcome. Id. A

petitioner’s failure to satisfy either the ‘performance’ or the ‘prejudice’ prong of

a Strickland analysis will cause an ineffective assistance of counsel claim to fail.

Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006).

III. Effectiveness of Trial Counsel

A. Admission of Evidence

[32] Before reaching the merits of Williams’ effectiveness of trial counsel claim, we

first address the issue of whether the trial court abused its discretion when it

excluded the transcript from Williams’ mistrial, ruling that it was irrelevant.

The admission or exclusion of evidence is within the post-conviction court’s Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 22 of 35 sound discretion; therefore, we defer to the post-conviction court and will not

disturb its ruling unless it abused its discretion. Conner v. State, 711 N.E.2d

1238, 1258 (Ind. 1999).

[33] The handgun evidence was not admitted at Williams’ first trial which ended in

a hung jury, but it was admitted at Williams’ second trial that ended in guilty

verdicts. Williams argues that, because the evidence presented at both trials

was largely the same apart from the admission of the handgun evidence, the

transcript of his mistrial was relevant to the consideration of whether he was

prejudiced by Trial Counsel’s performance at his second trial. In support of his

argument, Williams provides us with the following quote from our supreme

court’s decision in Dowdell v. State, 720 N.E.2d 1146, 1152 (Ind. 1999): “The

fact that the first trial ended in a hung jury suggests that, at least in the mind of

some jurors, there was a reasonable doubt surrounding [defendant’s] guilt.” At

Dowdell’s first trial on felony murder, attempted murder, and other charges, his

trial counsel failed to file a timely witness list, resulting in Dowdell’s alibi

witnesses being excluded. Id. at 1149. That trial ended in a hung jury. Id. at

1150. Dowdell’s trial counsel did not seek reconsideration of the trial court’s

ruling until the morning of his second trial, and the trial court again excluded

his alibi witnesses. Id. Dowdell’s second trial resulted in guilty verdicts. Id. at

1149. Dowdell argued that his trial counsel was ineffective for failing to timely

file a witness list and/or seek timely reconsideration of the trial court’s ruling,

but the post-conviction court denied relief, based partially on its reasoning that

the fact that Dowdell’s first trial had ended in a mistrial demonstrated he had

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 23 of 35 not been gravely prejudiced by his counsel’s performance. Id. at 1151. Our

supreme court held that this prejudice conclusion was clearly erroneous, finding

the fact of a hung jury to be suggestive that reasonable doubt existed as to

Dowdell’s guilt “at least in the mind of some jurors.” Id. at 1152. However,

the Dowdell court went on to reason that additional alibi witnesses may have

swayed other jurors, and that “[o]ne cannot conclude from a prior hung jury

that as a general proposition there is no reasonable possibility that newly

presented evidence would affect the result.” Id. at 1151-52. Therefore, we

conclude that a more full reading of Dowdell reveals that it does not stand for

the proposition, as Williams argues, that the fact that a previous trial resulted in

a hung jury is always relevant to an evaluation of prejudice under Strickland,

much less that it is dispositive that prejudice has positively been established.

Rather, Dowdell’s holding is more properly characterized as being that a lack of

prejudice may not be presumed by the fact of a prior hung jury.

[34] After Dowdell, our supreme court decided Beattie v. State, 924 N.E.2d 643, 649

(Ind. 2010), in which it held that Indiana appellate courts would no longer

review jury verdicts for consistency. In support of its holding, the Beattie court

recognized that juries may reach seemingly logically inconsistent verdicts for a

variety of reasons, such as a misunderstanding of the trial court’s instructions, a

choice to exercise leniency, compromise, a desire to end deliberations, to avoid

all-or-nothing verdicts, or for other reasons. Id. at 648-49. Adopting United

States Supreme Court jurisprudence citing “the general reluctance to inquire

into the workings of a jury, and the possible exercise of lenity,” our supreme

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 24 of 35 court held definitively that appellate courts would no longer attempt to read

meaning into a jury’s acquittal on some charges but not on others by reviewing

verdicts for consistency. Id. at 649.

[35] We conclude from the limited holding of Dowdell and the more recent Beattie

decision that Indiana courts do not attempt to ascribe meaning to verdicts, or

the lack thereof, rendered by juries in the manner suggested by Williams. A

jury may fail to reach a verdict for many reasons that have nothing to do with

the quantity or weight of the evidence or trial counsel’s performance, and any

attempt to discern its reasons is mere speculation. Therefore, the simple fact

that a jury failed to reach a verdict in a prior trial, without more, is not relevant

to a determination of whether a defendant was prejudiced for purposes of a

Strickland analysis.

[36] In arguing to the contrary, Williams draws our attention to a number of cases

from federal jurisdictions suggesting that a hung jury can signal that the

evidence of a case was close and, therefore, that the claimed error by counsel

prejudiced the defendant at his second trial. However, we observe that the

Seventh Circuit has taken a different approach. In Ford v. Wilson, 747 F.3d 944,

953-54 (7th Cir. 2014), Ford argued that he was prejudiced for purposes of a

Strickland analysis in light of the fact that his first trial resulted in a hung jury

and his trial counsel’s failure to object to a prosecutor’s remarks at his second

trial was the only significant difference between the two trials. Finding that

there was at least one additional significant difference between Ford’s two trials

because one of the State’s witness’s live testimony from the first trial was read

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 25 of 35 to the jury at the second trial, which proved to be less beneficial the defendant,

the Ford court observed that

[t]his simply underscores the need to be cautious in assigning critical significance to the failure of a different jury, which heard different evidence and argument, to reach agreement. Moreover, a jury may hang for any number of reasons, including the idiosyncratic views of a single juror. As a result, only in close cases should the fact of a prior hung jury lead to a finding of prejudice. This is not such a case because the evidence against Ford was far too strong for us to find prejudice under Strickland.

Id. at 954 (cleaned up). We find the Seventh Circuit’s approach as applied in

Ford to be more persuasive than the cases cited by Williams because it more

closely aligns with current Indiana state jurisprudence voicing reluctance to

divine the reasons for a jury’s verdict.

[37] Evidence is relevant if “it has any tendency to make a fact more or less probable

than it would be without the evidence[.]” Ind. Evidence Rule 401(a). Because

the simple fact that a prior jury hung, without more, does not shed light on the

jury’s reasons for failing to reach a verdict, it does not tend to make any

prejudice flowing from a claimed error on the part of trial counsel at a second

trial more or less probable. Here, the post-conviction court excluded the

transcript of Williams’ mistrial based on the State’s relevancy objection, which

we conclude was not an abuse of its discretion.

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 26 of 35 B. Performance

[38] Williams argues that his counsel’s performance was deficient because

“[o]pening the door to evidence which [T]rial [C]ounsel fought vigorously

pretrial to exclude fell below an objective standard of reasonableness based

upon prevailing professional norms.” (Appellant’s Br. p. 21). Thus, Williams

argues that opening the door to evidence which had previously been the subject

of attempts by Trial Counsel to suppress or exclude constitutes de facto deficient

performance under Strickland. However, in Garrett v. State, 602 N.E.2d 139,

141-42 (Ind. 1992), our supreme court held that trial counsel’s raising of the

issue of a witness’s prior inconsistent statement during the cross-examination of

an officer resulting in the admission of the witness’s damaging taped statement

was not deficient performance, even though his trial counsel had previously

moved to suppress the witness’s statement. In reaching this conclusion, the

court found that Garrett’s counsel was pursuing a strategy of attempting to

convey to the jury that both the witness’s and the officer’s testimony could be

untruthful. Id. The court held that “[t]actical choices by trial counsel do not

establish ineffective assistance of counsel even though such choices may be

subject to criticism or the choice ultimately proves detrimental to the

defendant.” Id. at 142.

[39] Here, Trial Counsel made a tactical choice to cross-examine Detective Equihua

about areas not searched and items not collected in Williams’ hotel room to

develop Williams’ defense strategy that the investigation was incomplete and

ineffective. Our review of the record revealed that this was a strategy that Trial

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 27 of 35 Counsel pursued relentlessly across all the detectives, crime scene investigators,

and technicians who worked on the instant investigation. The fact that Trial

Counsel’s pursuit of the chosen defense strategy resulted in the unintended

consequence of the admission of evidence she had previously sought to suppress

did not per se render her representation defective. See id.

[40] Williams also argues that Trial Counsel’s performance was deficient because

she failed to adequately prepare for her cross-examination of Detective

Equihua. Williams did not raise this discrete claim in his petition for post-

conviction relief, and, therefore, it is waived. See Ind. Post-Conviction Rule

1(8) (“All grounds for relief available to a petitioner under this rule must be

raised in his original petition.); Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct.

App. 2002) (“The failure to raise an alleged error in the petition waives the right

to raise that issue on appeal.”), trans. denied. The trial court did not enter any

findings or conclusions regarding Trial Counsel’s level of preparedness for the

cross-examination of Detective Equihua, and we decline to address that claim.

[41] Williams’ last argument pertaining to Trial Counsel’s performance is that the

post-conviction court misapplied Strickland when it found that Trial Counsel

had not performed deficiently because she had vigorously cross-examined other

witnesses. Williams claims that this was a misapplication of Strickland because

“counsel performing adequately in one regard does not prevent a finding that

counsel performed deficiently in another regard.” (Appellant’s Br. p. 22).

However, “effective assistance is determined according to the whole of the

lawyer’s performance and not just the strategy and performance at issue.”

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 28 of 35 Azania v. State, 738 N.E.2d 248, 251 (Ind. 2000). In addition, it is well-settled

that the nature and extent of cross-examination is a matter of trial strategy

which we do not second-guess on appeal. Myers v. State, 33 N.E.3d 1077, 1101

(Ind. Ct. App. 2015), trans. denied. As observed above, one of Williams’ line of

defenses was to point out the incompleteness and ineffectiveness of the

investigation. The post-conviction court’s finding that Trial Counsel had

vigorously cross-examined other witnesses was relevant to its assessment of

how Trial Counsel performed as a whole in pursuit of that strategy and so was

not a misapplication of Strickland. See Azania, 738 N.E.2d at 251. As such,

Williams has not met his burden on appeal to establish that the post-conviction

court’s conclusion that Trial Counsel’s performance was effective was clearly

erroneous. See Hollowell, 19 N.E.3d at 269.

C. Prejudice

[42] Even if Williams had established that Trial Counsel’s performance in opening

the door to the handgun evidence was deficient, he was also required to show

that “there is a reasonable probability that, but for his counsel’s unprofessional

errors, the result of the proceeding would have been different.” Weisheit, 109

N.E.3d at 983. Reviewing courts have found insufficient Strickland prejudice

even where counsel’s performance led to the admission of damaging evidence if

there was significant, additional evidence of the defendant’s guilt. In Drake v.

State, 563 N.E.2d 1286, 1288-89 (Ind. 1990), defense counsel had succeeded in

having Drake’s admissions to his wife excluded from his murder trial, only to

open the door to that evidence during wife’s cross-examination. The Drake

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 29 of 35 court found that, although trial counsel’s performance had been deficient,

Drake had failed to demonstrate sufficient prejudice, and no reversible error

had occurred, in light of his more-detailed admissions made to two other

witnesses. Id. at 1289. Likewise, in the earlier case of Hill v. State, 442 N.E.2d

1049, 1053-54 (Ind. 1982), our supreme court found an insufficient showing of

prejudice flowing from trial counsel’s inadvertent opening the door during

cross-examination to previously-suppressed show-up identification evidence,

where various other witnesses identified Hill pre-trial and in-trial as the person

who had committed the robbery at issue.

[43] Here, the State presented significant and substantial evidence of Williams’ guilt.

Jester identified Williams as the person who shot her and Reedus, and that

identification did not waver through her 911 call, her post-hospitalization

interview with Detective Davis, her deposition, her first trial testimony, and her

second trial testimony. Williams telephoned Jester’s sister Tasharra and said

“I’m sorry,” and commented that Jester was not dead, something that the jury

was free to infer he would have only known at that time if he had been present

when she was shot. (Tr. Vol. XI, p. 180). Williams made incriminating

statements to Carr and Kidd, and he wrote letters attempting to ensure that

Jester did not appear for trial. Williams gave a contradictory statement after he

was apprehended that he had no memory of the relevant timeframe but denied

shooting Reedus, and he made a statement that Jester had pumped her own gas

before the shooting, which placed him with the victims just prior to the

offenses. In addition, Johnson testified that Williams had a firearm in his hotel

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 30 of 35 room, which was independent evidence from which the jury could infer that he

possessed a weapon with which he shot Jester and Reedus. While another set

of facts could have presented a closer case, given the quantum and quality of

the other evidence indicating Williams’ guilt, we cannot conclude that there

was a reasonable probability that the jury’s verdict would have been different

without the admission of the handgun evidence or that the post-conviction

court’s conclusion in this regard was clearly erroneous.

[44] In arguing otherwise, Williams first contends that “the post-conviction court

erred in not giving any weight to the prior hung jury.” (Appellant’s Br. p. 23).

As we have already found that the bare fact that a prior trial resulted in a hung

jury is not relevant to a trial court’s determination of prejudice under Strickland,

we find no clear error in the post-conviction court’s refusal to accord it weight

in its analysis.

[45] Williams further argues that even without consideration of the prior hung jury,

he established that he was prejudiced by Trial Counsel’s opening of the door to

the handgun evidence because that evidence was especially strong and the

State’s case was weak. However, in order to prevail on appeal, Williams was

required to demonstrate that the evidence “as a whole leads unerringly and

unmistakably to a conclusion opposite that reached by the [PCR] court.”

Hollowell, 19 N.E.3d at 269. Williams’ argument essentially asks us to reassess

the credibility of the witnesses and the weight of the evidence, but it does not

demonstrate that the evidence as a whole pointed “unerringly and

unmistakably” towards a finding of prejudice. Id. Given that Williams has

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 31 of 35 failed to meet his appellate burden of demonstrating a reasonable probability

that the outcome of his trial would have been different absent Trial Counsel’s

performance, we find no clear error in the post-conviction court’s denial of

relief.

IV. Effectiveness of Appellate Counsel

[46] Williams challenges the representation afforded by Appellate Counsel, arguing

that he “was ineffective for failing to challenge the trial court’s ruling that the

State could introduce the firearm and results of testing of the firearm in

response to [T]rial [C]ounsel opening the door.” (Appellant’s Br. p. 27). The

standard of review for ineffective assistance of appellate counsel claims is the

same as that for trial counsel: the petitioner must show deficient performance

and that the deficiency resulted in prejudice to him. Hollowell, 19 N.E.3d at

269. Ineffective assistance of appellate counsel claims generally fall into three

categories, namely (1) denial of access to an appeal; (2) waiver of issues; and (3)

failure to present issues well. Id. at 270. In order to show that appellate counsel

was ineffective for failing to raise an issue on appeal, thus resulting in waiver for

collateral review, a defendant must overcome the “strongest presumption of

adequate assistance, and judicial scrutiny is highly deferential.” Reed v. State,

856 N.E.2d 1189, 1195 (Ind. 2006). In evaluating the performance prong of the

Strickland standard, we determine whether the unraised issues are significant

and obvious from the face of the record and whether the unraised issues are

clearly stronger than the raised issues. Id. In evaluating the prejudice prong of

the Strickland standard, we determine whether the issues that appellate counsel

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 32 of 35 failed to raise would have been clearly more likely to result in reversal or an

order for a new trial. Id. It is very rare that we find appellate counsel to be

ineffective for failing to raise an issue on appeal, as the decision of what issues

to raise is one of the most important strategic decisions made by appellate

counsel. Id.

A. Performance

[47] Here, Appellate Counsel chose to challenge the trial court’s denial of Williams’

motion for a change of judge after his first trial ended in a mistrial. Appellate

Counsel testified at the post-conviction hearing that he reviewed the transcript

of Williams’ second trial, was aware of the handgun evidence issue, but decided

to advance the change of judge issue because the handgun evidence issue was

not properly preserved for review. Thus, Appellate Counsel’s choice of issue

was a strategic exercise of his professional judgment. Appellate Counsel’s

judgment was reasonable given that Trial Counsel had argued to the trial court

that, without an in-trial hearing on the second motion to suppress, the

suppression issue would not be properly preserved for review.

[48] More significantly, after the trial court denied the motion for an in-trial

suppression hearing, Trial Counsel stated her intention to make an offer of

proof, presumably to present the additional discovery she had obtained and the

evidence gleaned from the depositions she took of law enforcement officers

involved in the recovery of the handgun from Williams’ hotel room. There is

no such offer of proof in the record, and, thus, there was no factual basis in the

record for a reviewing court to assess the issue. Contrary to Williams’

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 33 of 35 assertions, the Deputy Prosecutor did not concede that the handgun evidence

was inadmissible; rather, she conceded only that she had ethical concerns about

proceeding with the evidence. Although Williams directs our attention to a

litany of other actions taken by Trial Counsel to address the trial court’s ruling,

he acknowledges neither Trial Counsel’s in-trial concession that the issue was

not properly preserved for appellate review nor the lack of an offer of proof

regarding the basis for his second motion to suppress. A waived issue has no

persuasive appellate value and, therefore, is not “clearly stronger” than another

issue. Reed, 856 N.E.2d at 1195. Given the deference we accord to the strategic

decisions of appellate counsel in the choice of issues and the waiver of

Williams’ preferred issue, Williams has failed to overcome the strong

presumption that Appellate Counsel’s performance was effective, and the post-

conviction court’s findings and conclusions are not clearly erroneous.

B. Prejudice

[49] Even if we were to have found that Appellate Counsel had rendered deficient

performance in failing to present the handgun evidence issue on direct appeal,

we would not reverse Williams’ convictions. In order to prevail on his claim of

ineffectiveness of appellate counsel, Williams was required to show that the

handgun issue was “clearly more likely to result in reversal or an order for a

new trial.” Id. Jester’s consistent identification of Williams as the shooter,

Williams’ apology and comment to Tasharra, his statement to Warmack

placing him with the victims just prior to the shooting, Williams’ contradictory

statements to Detective Davis about his memory of the relevant timeframe,

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 34 of 35 Williams’ jailhouse discussions with Kidd and Carr indicating he wished to

prevent Jester from appearing at trial, and his letters indicating the same all

pointed strongly to his identity as the shooter. The State also presented

Johnson’s testimony that Williams had a small black gun in his hotel room. As

we have already concluded in reaching our disposition of Williams’

effectiveness of trial counsel claim, because of this considerable independent

evidence of Williams’ guilt, there was little probability that the admission of the

handgun affected the outcome of Williams’ trial. Because of this, we reach a

similar conclusion regarding the likelihood of it being a successful appellate

issue. Williams has failed to demonstrate that his chosen issue would have

been more likely to result in a reversal on appeal. See id. Accordingly, the post-

conviction court’s determination that Williams was not prejudiced by Appellate

Counsel’s performance was not clearly erroneous.

CONCLUSION [50] Based on the foregoing, we conclude that the post-conviction court’s

determination that Williams received the effective assistance of Trial Counsel

and Appellate Counsel was not clearly erroneous.

[51] Affirmed.

[52] May, J. and Altice, J. concur

Court of Appeals of Indiana | Opinion 20A-PC-998 | December 21, 2020 Page 35 of 35