MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 17 2018, 8:40 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Derrick D. Armstead Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Derrick D. Armstead, August 17, 2018 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-378 v. Appeal from the Posey Superior Court State of Indiana, The Honorable S. Brent Almon, Appellee-Respondent. Judge Trial Court Cause No. 65D01-1510-PC-352
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 1 of 8 Case Summary [1] Pro-se Appellant-Petitioner Derrick Armstead (“Armstead”) appeals the denial
of his petition for post-conviction relief, following his convictions of Attempted
Murder and Battery, and his adjudication as a habitual offender. He presents
the sole issue of whether he was denied the effective assistance of trial counsel.
We affirm.
Facts and Procedural History [2] The facts were recited by a panel of this Court on direct appeal, in relevant part,
as follows:
On July 29, 2013, Armstead and Christopher Bradshaw began arguing outside at the mobile-home community in which Christopher lived. Property manager Tyfney Bennett intervened and attempted to settle the dispute between the two. After Armstead’s girlfriend and Christopher’s wife began to argue, Bennett told Christopher’s wife to call the police. Armstead then backed off, began walking away and said, “I will f***ing kill you all.” Tr. p. 256.
Soon thereafter, Larry Bradshaw, Christopher’s father, arrived at the mobile home. Larry worked as a handyman for the property and was delivering materials to another trailer. When he arrived, Larry was unaware of the prior altercation between Christopher and Armstead. Upon exiting his truck, Larry noticed Armstead standing nearby and asked him if there was a problem. Armstead replied, “F*** yes there is, I am going to cut your f***ing throat.” Tr. p. 290. Armstead then removed a folded knife from his pocket and approached Larry. Armstead’s girlfriend also approached Larry carrying a baseball bat. The two attacked
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 2 of 8 Larry, Armstead stabbing him multiple times in the chest, arm, and back, and Armstead’s girlfriend striking Larry in the head with the baseball bat. Christopher ran to aid his father but was in turn stabbed by Armstead in the chest and neck. Armstead admitted to stabbing Larry but contends that it was in retaliation after Larry poured gasoline on him. Larry testified that he did not pour or attempt to pour gasoline on Armstead.
Armstead v. State, No. 65A01-1408-CR-232, slip op. at 1 (Ind. Ct. App. Feb. 12,
2015).
[3] On April 11, 2014, a jury found Armstead guilty of Attempted Murder and
multiple counts of Battery. Armstead was also adjudicated a habitual offender.
The trial court entered judgments of conviction on Attempted Murder and one
count of Battery. Armstead received an aggregate sentence of seventy-four
years (thirty-eight years for Attempted Murder, enhanced by thirty years due to
Armstead’s habitual offender status, and six years for Battery, to be served
consecutively).
[4] Armstead appealed, raising issues of prosecutorial misconduct and exclusion of
evidence. Armstead’s convictions were affirmed. Id. at 5.
[5] On October 1, 2015, Armstead filed a petition for post-conviction relief. On
August 17, 2017, the post-conviction court conducted an evidentiary hearing, at
which Armstead’s trial counsel was the sole witness. On January 2, 2018, the
post-conviction court issued its findings of fact, conclusions thereon, and order
denying Armstead post-conviction relief. He now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 3 of 8 Discussion and Decision Standard of Review [6] The petitioner in a post-conviction proceeding bears the burden of establishing
the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Id. On review, we will not reverse the
judgment of the post-conviction court unless the evidence unerringly and
unmistakably leads to a conclusion opposite that reached by the post-conviction
court. Id. A post-conviction court’s findings and judgment will be reversed
only upon a showing of clear error, that which leaves us with a definite and
firm conviction that a mistake has been made. Id. In this review, findings of
fact are accepted unless they are clearly erroneous, and no deference is accorded
to conclusions of law. Id. The post-conviction court is the sole judge of the
weight of the evidence and the credibility of witnesses. Id.
Effectiveness of Trial Counsel [7] Armstead contends that he was denied the effective assistance of trial counsel
because counsel failed to conduct a “full fact investigation,” Appellant’s Brief at
8, and failed to call two witnesses supportive of Armstead’s defense of self-
defense: Armstead’s girlfriend, Deneca Finch (“Finch”), and her son Trey
Bunch (“Bunch”).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 4 of 8 [8] Effectiveness of counsel is a mixed question of law and fact. Strickland v.
Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims
of ineffective assistance under the two-part test announced in Strickland. Id. To
prevail on an ineffective assistance of counsel claim, a defendant must
demonstrate both deficient performance and resulting prejudice. Dobbins v.
State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).
Deficient performance is that which falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d
1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that
“there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.
1996). The two prongs of the Strickland test are separate and independent
inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice … that course
should be followed.” Id.
[9] We “strongly presume” that counsel provided adequate assistance and
exercised reasonable professional judgment in all significant decisions. McCary
v. State, 761 N.E.2d 389, 392 (Ind. 2002).
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 17 2018, 8:40 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Derrick D. Armstead Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Derrick D. Armstead, August 17, 2018 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-378 v. Appeal from the Posey Superior Court State of Indiana, The Honorable S. Brent Almon, Appellee-Respondent. Judge Trial Court Cause No. 65D01-1510-PC-352
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 1 of 8 Case Summary [1] Pro-se Appellant-Petitioner Derrick Armstead (“Armstead”) appeals the denial
of his petition for post-conviction relief, following his convictions of Attempted
Murder and Battery, and his adjudication as a habitual offender. He presents
the sole issue of whether he was denied the effective assistance of trial counsel.
We affirm.
Facts and Procedural History [2] The facts were recited by a panel of this Court on direct appeal, in relevant part,
as follows:
On July 29, 2013, Armstead and Christopher Bradshaw began arguing outside at the mobile-home community in which Christopher lived. Property manager Tyfney Bennett intervened and attempted to settle the dispute between the two. After Armstead’s girlfriend and Christopher’s wife began to argue, Bennett told Christopher’s wife to call the police. Armstead then backed off, began walking away and said, “I will f***ing kill you all.” Tr. p. 256.
Soon thereafter, Larry Bradshaw, Christopher’s father, arrived at the mobile home. Larry worked as a handyman for the property and was delivering materials to another trailer. When he arrived, Larry was unaware of the prior altercation between Christopher and Armstead. Upon exiting his truck, Larry noticed Armstead standing nearby and asked him if there was a problem. Armstead replied, “F*** yes there is, I am going to cut your f***ing throat.” Tr. p. 290. Armstead then removed a folded knife from his pocket and approached Larry. Armstead’s girlfriend also approached Larry carrying a baseball bat. The two attacked
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 2 of 8 Larry, Armstead stabbing him multiple times in the chest, arm, and back, and Armstead’s girlfriend striking Larry in the head with the baseball bat. Christopher ran to aid his father but was in turn stabbed by Armstead in the chest and neck. Armstead admitted to stabbing Larry but contends that it was in retaliation after Larry poured gasoline on him. Larry testified that he did not pour or attempt to pour gasoline on Armstead.
Armstead v. State, No. 65A01-1408-CR-232, slip op. at 1 (Ind. Ct. App. Feb. 12,
2015).
[3] On April 11, 2014, a jury found Armstead guilty of Attempted Murder and
multiple counts of Battery. Armstead was also adjudicated a habitual offender.
The trial court entered judgments of conviction on Attempted Murder and one
count of Battery. Armstead received an aggregate sentence of seventy-four
years (thirty-eight years for Attempted Murder, enhanced by thirty years due to
Armstead’s habitual offender status, and six years for Battery, to be served
consecutively).
[4] Armstead appealed, raising issues of prosecutorial misconduct and exclusion of
evidence. Armstead’s convictions were affirmed. Id. at 5.
[5] On October 1, 2015, Armstead filed a petition for post-conviction relief. On
August 17, 2017, the post-conviction court conducted an evidentiary hearing, at
which Armstead’s trial counsel was the sole witness. On January 2, 2018, the
post-conviction court issued its findings of fact, conclusions thereon, and order
denying Armstead post-conviction relief. He now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 3 of 8 Discussion and Decision Standard of Review [6] The petitioner in a post-conviction proceeding bears the burden of establishing
the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Id. On review, we will not reverse the
judgment of the post-conviction court unless the evidence unerringly and
unmistakably leads to a conclusion opposite that reached by the post-conviction
court. Id. A post-conviction court’s findings and judgment will be reversed
only upon a showing of clear error, that which leaves us with a definite and
firm conviction that a mistake has been made. Id. In this review, findings of
fact are accepted unless they are clearly erroneous, and no deference is accorded
to conclusions of law. Id. The post-conviction court is the sole judge of the
weight of the evidence and the credibility of witnesses. Id.
Effectiveness of Trial Counsel [7] Armstead contends that he was denied the effective assistance of trial counsel
because counsel failed to conduct a “full fact investigation,” Appellant’s Brief at
8, and failed to call two witnesses supportive of Armstead’s defense of self-
defense: Armstead’s girlfriend, Deneca Finch (“Finch”), and her son Trey
Bunch (“Bunch”).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 4 of 8 [8] Effectiveness of counsel is a mixed question of law and fact. Strickland v.
Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims
of ineffective assistance under the two-part test announced in Strickland. Id. To
prevail on an ineffective assistance of counsel claim, a defendant must
demonstrate both deficient performance and resulting prejudice. Dobbins v.
State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).
Deficient performance is that which falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d
1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that
“there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.
1996). The two prongs of the Strickland test are separate and independent
inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice … that course
should be followed.” Id.
[9] We “strongly presume” that counsel provided adequate assistance and
exercised reasonable professional judgment in all significant decisions. McCary
v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded
considerable discretion in the choice of strategy and tactics. Timberlake v. State,
753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the
facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 5 of 8 1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring
reasonable professional judgment even if the strategy in hindsight did not serve
the defendant’s interests. Id. In sum, trial strategy is not subject to attack
through an ineffective assistance of counsel claim, unless the strategy is so
deficient or unreasonable as to fall outside the objective standard of
reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
[10] Initially, Armstead contends that his trial attorney failed to conduct a
sufficiently thorough investigation of the relevant facts. Armstead’s trial
counsel, John Warrum (“Warrum”), was the sole witness at the post-conviction
hearing. As for his investigative efforts, Warrum testified that he reviewed
Armstead’s police statements and the body camera footage from the first
responding officer. Warrum interviewed and deposed potential defense
witnesses and met with members of Armstead’s family. He estimated that he
reviewed “five thousand times” a cell phone video made by one of the mobile
home community residents. (Tr. Vol. II, pg. 33.) Armstead does not point to
relevant evidence that would have surfaced with more diligent efforts on the
part of trial counsel. He has not shown ineffectiveness in this regard. See
Coleman v. State, 694 N.E.2d 269, 274 (Ind. 1998) (observing that the petitioner
claiming inadequate consultation or investigation bears the burden of showing
what additional information may have been garnered and how that additional
information would have aided in the preparation of the case).
[11] Armstead also argues that his trial counsel should have called Finch and Bunch
as witnesses to support Armstead’s claim of self-defense. Warrum testified that
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 6 of 8 he deposed Finch but her deposition testimony that she was not wielding a bat
contradicted the video image of her with a bat. He decided not to call Finch as
a witness for fear that the jury would find her testimony false and the credibility
of the defense of self-defense would be undermined. Warrum further testified
that he had interviewed Bunch, who was too young to drive, and was brought
to the interview by a relative. Warrum explained that his decision not to call
Bunch as a witness was based upon his fear that the youthful Bunch could be
led into providing testimony harmful to Armstead’s defense. In Warrum’s
view, Bunch could have been questioned about what happened to the knife
used to stab Larry but never recovered by police. Also, Warrum feared that
Bunch could “open the door” that “couldn’t be shut,” allowing the jury to hear
about Armstead’s prior conviction for Voluntary Manslaughter. (Tr. Vol. II,
pg. 36.)
[12] In the context of an ineffective assistance of counsel claim, the decision of what
witnesses to call is a matter of trial strategy and appellate courts do not second-
guess that decision. Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009).
Here, trial counsel explained that Armstead’s defense was one of self-defense,
but counsel had been placed in a very difficult position in that the trial witnesses
and physical evidence did not support Armstead’s version of events. In
addition to video incriminating Armstead, the pour pattern from spilled
gasoline was near Larry’s truck and not on Armstead’s property as he had
claimed. However, counsel opined that the first responder’s camera footage in
which Armstead claimed he was attacked could be helpful to Armstead; the
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 7 of 8 video was admitted into evidence with redactions requested by counsel. The
jury’s ultimate rejection of the defense of self-defense was not due to
inadequacy on the part of trial counsel. Trial counsel’s efforts and strategy,
although they did not ultimately achieve the result desired by Armstead, were
not so unreasonable as to constitute ineffective assistance of counsel. See Badelle
v. State, 754 N.E.2d 510, 539 (Ind. Ct. App. 2001) (deciding in relevant part
that, when trial counsel’s efforts were “more than adequate” to support a
chosen defense, counsel’s decision not to seek out additional witnesses was a
judgment call within the wide range of reasonable assistance), trans. denied.
Conclusion [13] Armstead was not denied the effective assistance of trial counsel. Accordingly,
the post-conviction court properly denied the petition for post-conviction relief.
[14] Affirmed.
Mathias, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-378 | August 17, 2018 Page 8 of 8