MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 28 2020, 8:52 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Jesse Doyle, Jr. Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana Caroline G. Templeton Monika Prekopa Talbot Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jesse Doyle, Jr., April 28, 2020 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-1587 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable Appellee-Respondent. James D. Humphrey, Judge Trial Court Cause No. 15C01-1312-PC-10
Kirsch, Judge.
[1] Jesse Doyle, Jr. (“Doyle”) appeals the denial of his petition for post-conviction
relief, contending that the post-conviction court erred. On appeal, he raises the
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 1 of 16 following restated issue for our review: whether Doyle received ineffective
assistance of his trial counsel.
[2] We affirm.
Facts and Procedural History [3] The facts supporting Doyle’s convictions as set forth by this court in his direct
appeal are as follows:
On April 29, 2011, forty-seven-year-old Doyle was living with his girlfriend and her ten-year-old daughter, H.H. H.H. stayed home sick from school that day, and Doyle was responsible for watching her. H.H. knew that Doyle usually kept a gun under his pillow, ammunition in the chest next to the bed, and knives in the bedroom.
H.H. was in Doyle’s bed, and Doyle began to tickle her and kiss her on her arm and stomach. Doyle then got on top of H.H. and told her, “I'm going to f* * * you.” State’s Ex. 3A at 77. H.H. yelled for help, and Doyle closed the window. H.H. ran for the door, but Doyle grabbed her. He then slapped H.H., told her to be quiet, and put his hand over her mouth and nose. Doyle removed H.H.’s pants and spread her genitals apart with his fingers. He told H.H. to get up, closed the door to his bedroom, and removed his clothing. H.H. used the connected restroom and then returned to Doyle’s room. Doyle told H.H. to “go lay down on the bed,” id. at 141, and Doyle rubbed his penis on H.H.’s genitals and said, “You have a nice little pussy.” Id. Doyle ejaculated on H.H. and used a towel to wipe his penis and H.H.’s genitals. He told H.H. to stand up and put her clothes back on. H.H. then moved to lie down on the couch, but Doyle told her to “come here.” Id. at 142. He then showed H.H. a gun and a knife and threatened to kill her if she told anyone. H.H.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 2 of 16 “pinky-promised” Doyle that she would not tell anyone what he had done. Id. Doyle then showed H.H. that he was putting a gun in his jacket pocket. Both Doyle and H.H. went to H.H.’s grandmother’s house that evening, and H.H. told her grandmother what Doyle had done to her. The police arrived at H.H.’s grandmother’s house and took H.H. and her mother to Cincinnati Children’s Hospital. Sexual-assault evidence was collected from H.H.
Police were initially unable to find Doyle. In May 2011, Doyle called his daughter, Tricia, and told her that he had intended to have intercourse with H.H. Tricia then told the police where Doyle was. When police arrived at the residence where Tricia said Doyle was, they found him hiding in a back bedroom and his car was hidden at another location. Doyle admitted to touching H.H. with his penis for approximately thirty seconds. State’s Ex. 28A at 314.
The State charged Doyle with Class A felony attempted child molesting, two counts of Class A felony child molesting while armed with a deadly weapon, and Class C felony intimidation with a deadly weapon. A jury trial was held, and Doyle was found guilty on all counts. At the sentencing hearing, the trial court merged the two Class A felony child molesting while armed with a deadly weapon convictions into the Class A felony attempted child-molesting conviction. It then sentenced Doyle to fifty years for Class A felony attempted child molesting and four years for Class C felony intimidation with a deadly weapon, to be served concurrently.
Doyle v. State, No. 15A05-1301-CR-39, 2013 WL 4105536, *1-*2 (Ind. Ct. App.
Aug. 14, 2013), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 3 of 16 [4] Doyle filed a direct appeal and was represented by counsel. On appeal, Doyle
alleged that the trial court erred when it merged his two Class A felony child
molesting convictions into the Class A felony attempted child molesting
conviction instead of vacating them and that the State presented insufficient
evidence to support his convictions for Class A felony child molesting and for
Class A felony attempted child molesting. A panel of this court issued an
unpublished memorandum decision in which it affirmed the trial court in part
and reversed it in part. Id. This court held that the trial court erred in merging,
and not vacating the Class A felony child molesting convictions and found that
sufficient evidence supported the remaining conviction for Class A felony
attempted child molesting. Id. at *2-*3. Doyle sought transfer to the Indiana
Supreme Court, which was denied.
[5] On December 17, 2013, Doyle filed a pro se petition for post-conviction relief,
in which he alleged that he received ineffective assistance of trial counsel.
Appellant’s PCR App. Vol. I at 21-31. Although the State Public Defender filed
an appearance for Doyle’s post-conviction relief petition, the State Public
Defender later withdrew its appearance on Doyle’s behalf on June 23, 2016,
and Doyle thereafter proceeded pro se. Id. at 45-46. Doyle amended his
petition on October 19, 2017, and again alleged that he received ineffective
assistance of counsel for several reasons. Id. at 151-61. Specifically, Doyle
alleged that his trial counsel was ineffective because he: (1) did not challenge
Juror 8; (2) did not move to suppress his statement to police; (3) did not object
to Juror 8, Count IV, multiple convictions being entered, or the jury instruction
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 4 of 16 on attempted child molestation; (4) did not raise a defense because he allegedly
conceded Doyle’s guilt in the opening statement and some of his statements in
the closing argument; (5) did not take a deposition of H.H.; and (6) did not
provide advance notice of the affirmative defense of abandonment. Id. at 152-
59.
[6] The post-conviction court held an evidentiary hearing on March 28, 2018. At
the hearing, Doyle’s trial counsel testified that he had no memory of Doyle
claiming that Doyle knew Juror 8 or that Juror 8 later gave a gift to the
prosecutor. PCR Tr. Vol. I at 243, 245. Trial counsel further testified that
whether to take depositions is a matter of strategy and that he does not always
take depositions of witnesses because it can sometimes help the State by
revealing possible flaws in the State’s case. Id. at 246. Trial counsel explained
that in his opening statement he did not concede Doyle’s guilt, but only
acknowledged that there was some clear evidence that could not be disputed.
Id. at 248. Trial counsel also testified that he did not believe that it would have
been plausible to file a motion to dismiss the charges against Doyle because it
would not have been granted. PCR Tr. Vol. II at 16-17.
[7] The two police officers who interviewed Doyle also testified at the post-
conviction hearing regarding the interview that took place in a police car
outside of a home where the officers had discovered Doyle hiding several days
after the investigation began. Id. at 21, 36. Both officers testified that Doyle
was not under custodial arrest when they questioned him and that he was free
to leave. Id. at 24, 26, 27, 30, 39-40. The officers specifically testified that they
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 5 of 16 told Doyle he was free to leave before they began questioning him and again
informed him he was free to leave in the middle of the interview. Id. at 30, 33
39-40. They also testified that Doyle was allowed to leave the car after the
interview and was not arrested at that time. Id. at 30-31, 40.
[8] The post-conviction court issued its order, denying Doyle’s petition on June 16,
2018. Appellant’s PCR App. Vol. II at 263-69. In the order, the post-conviction
court found that as to Doyle’s claim regarding Juror 8, Doyle failed to prove
that his trial counsel’s representation was deficient because there was no
evidence that there was any misconduct by Juror 8 or that the juror even knew
Doyle. Id. at 267. As to Doyle’s claim that trial counsel was ineffective for
failing to file a motion to suppress or dismiss because of alleged Miranda
violations during his interview with the police, the post-conviction court found
that Doyle failed to prove by a preponderance of the evidence that he was at
any point under custodial arrest during questioning. Id. Because Doyle could
not prove that a motion to dismiss or a motion to suppress would have been
granted if filed, the post-conviction court concluded that he failed to prove any
prejudice. Id. at 268. The post-conviction court further concluded that the rest
of Doyle’s claims were without merit because he failed to show either that trial
counsel’s performance fell below an objective standard of reasonableness or that
he was prejudiced by the representation. Doyle now appeals.
Discussion and Decision [9] This is an appeal from the denial of a petition for post-conviction relief.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 6 of 16 We observe that post-conviction proceedings do not grant a petitioner a “super-appeal” but are limited to those issues available under the Indiana Post-Conviction Rules. [Ind. Post- Conviction Rule 1(1)]. Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Ind. Post- Conviction Rule 1(5). A petitioner who appeals the denial of [post-conviction relief] faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post- conviction court. The appellate court must accept the post- conviction court’s findings of fact and may reverse only if the findings are clearly erroneous. If a [post-conviction] petitioner was denied relief, he or she must show that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion than that reached by the post-conviction court.
[10] Massey v. State, 955 N.E.2d 247, 253 (Ind. Ct. App. 2011) (quoting Shepherd v.
State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (citations omitted), trans.
denied).
[11] Doyle challenges the effectiveness of the representation of his trial counsel.
“The Sixth Amendment to the United States Constitution guarantees criminal
defendants the right to counsel and mandates that the right to counsel is the
right to the effective assistance of counsel. Bobadilla v. State, 117 N.E.3d 1272,
1279 (Ind. 2019). “We evaluate Sixth Amendment claims of ineffective
assistance under the two-part test announced in Strickland.” Rondeau v. State, 48
N.E.3d 907, 916 (Ind. Ct. App. 2016) (citing Strickland v. Washington, 466 U.S.
668, 698 (1984)), trans. denied. To prevail on a claim of ineffective assistance of
counsel, a petitioner must demonstrate that (1) counsel’s representation fell
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 7 of 16 short of prevailing professional norms, and (2) counsel’s deficient performance
prejudiced the defendant such that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 687-88, 698. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Rondeau, 48
N.E.3d at 916 (quoting Strickland, 466 U.S. at 698). “The two prongs of the
Strickland test are separate and independent inquiries.” Id. (citing 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.
(quoting Strickland, 466 U.S. at 697).
[12] Further, counsel’s performance is presumed effective, and a defendant must
offer strong and convincing evidence to overcome this presumption.
McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. We
will not lightly speculate as to what may or may not have been an advantageous
trial strategy, as counsel should be given deference in choosing a trial strategy
that, at the time and under the circumstances, seems best. Perry v. State, 904
N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Whitener v. State, 696 N.E.2d 40,
42 (Ind. 1998)), trans. denied. Isolated omissions or errors, poor strategy, or bad
tactics do not necessarily render representation ineffective. McCullough, 973
N.E.2d at 74.
[13] Doyle argues that the post-conviction court erred when it denied his petition for
post-conviction relief, contending that he received ineffective assistance of trial
counsel. He specifically asserts that his trial counsel was ineffective for (1)
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 8 of 16 failing to do depositions prior to trial, (2) failing to investigate the alleged
Miranda violations and failing to file a motion to suppress or a motion to
dismiss the charges against him as a result of these alleged Miranda violations,
(3) failing to challenge Juror 8, (4) not calling defense witnesses that could have
substantiated Doyle’s claims that he did not cause the red irritation on the
victim’s vaginal area, (5) failing to object to statements made by the prosecutor
during closing argument and to the admission into evidence of four pocket
knives, (6) allegedly conceding Doyle’s guilt in his opening statement and
closing argument, and (7) failing to challenge the charging information for
alleged defects.
[14] Initially, we note that Doyle has failed to make a cogent argument regarding his
claims of ineffective assistance of trial counsel on appeal. See Ind. Appellate
Rules 46(A)(8)(a) (stating that “argument must contain the contentions of the
appellant on the issues presented, supported by cogent reasoning”). Generally,
a party waives any issue raised on appeal where the party fails to develop a
cogent argument or provide adequate citation to authority and portions of the
record. Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005), trans.
denied. “[P]ro se litigants are held to the same standard regarding rule
compliance as are attorneys duly admitted to the practice of law and must
comply with the appellate rules to have their appeal determined on the merits.”
Id. at 203. In the present case, although Doyle provides citations to cases, he
does not apply them in a manner that develops and supports a reasoned
argument. Because Doyle has failed to make a cogent argument regarding any
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 9 of 16 of his claims of ineffectiveness of trial counsel, he has waived appellate review
of his contentions. Id. Waiver for failure to raise cogent argument
notwithstanding, we proceed to reach Doyle’s contentions on the merits.
[15] Doyle first contends that his trial counsel was ineffective for not conducting a
deposition of H.H. because the deposition would have shown that the State’s
accusations that he possessed and used a weapon in the commission of the
offenses were not correct and would have changed the outcome of the case.
Appellant’s Br. at 11. However, it is not clear from Doyle’s argument which of
the charged offenses he believes would have been affected by H. H.’s
deposition. Doyle’s use of a weapon was necessary for the State to prove the
elements of Counts I, III, and IV. Direct Appeal App. Vol. I at 16-17. Both
Counts I and III were vacated following Doyle’s direct appeal. Doyle, 2013 WL
4105536 at *2. Therefore, to the extent that Doyle’s argument rests on the
premise that Counts I and III would have been impacted had his trial counsel
conducted a deposition of H.H., he cannot show prejudice because he no longer
stands convicted of those offenses. Further, Doyle has not met his burden to
demonstrate that counsel performed deficiently. Tactical or strategic decisions
will not support a claim of ineffective assistance. Humphrey v. State, 73 N.E.3d
677, 683 (Ind. 2017). Here, trial counsel testified that he did not take H.H.’s
deposition as a matter of trial strategy because, in his experience, depositions
can sometimes help the State by alerting it to possible shortcomings in its case.
PCR Tr. Vol. I at 246. Counsel’s failure to interview or depose State’s witnesses
does not, standing alone, show deficient performance. Williams v. State, 771
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 10 of 16 N.E.2d 70, 74 (Ind. 2002). The question is what additional information may
have been gained from further investigation and how the absence of that
information prejudiced his case. Id. Doyle does not identify what additional
information would have been available to his trial counsel if counsel had
conducted a deposition that was not already accessible to him. He has,
therefore, failed to meet his burden.
[16] Doyle next argues that his trial counsel was ineffective for failing to investigate
the alleged Miranda violations and failing to file a motion to suppress or a
motion to dismiss the charges against him as a result of these alleged Miranda
violations. To prevail on an ineffective assistance of counsel claim based on
counsel’s failure to file motions, Doyle must demonstrate a reasonable
probability that the motion would have been successful. Talley v. State, 51
N.E.3d 300, 303 (Ind. Ct. App. 2016), trans. denied. Here, Doyle has not shown
a reasonable probability that his trial counsel would have been successful if he
had filed either a motion to suppress Doyle’s statement to police or a motion to
dismiss the charges against Doyle because Doyle was not in custody when he
spoke to the police and was, therefore, not entitled to Miranda warnings. The
trigger to require Miranda warnings is custodial interrogation. Hudson v. State,
129 N.E.3d 220, 224 (Ind. Ct. App. 2019). To determine whether a person is in
custody the inquiry is whether there is formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest. Reid v. State, 113
N.E.3d 290, 300 (Ind. Ct. App. 2018), trans. denied. Questioning an individual
the police suspect of a crime does not inherently render the questioning
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 11 of 16 custodial interrogation. Id. Here, Doyle was not in custody when the police
questioned him. He was told he was not under arrest and that he was free to
leave. PCR Tr. Vol. II at 24, 26, 27, 30, 39-40. Doyle agreed to speak with the
officers and sat in the front passenger seat of the police car, the car door was
unlocked, and Doyle was not handcuffed or restrained in anyway. Id. at 33,
40, 41. Doyle was allowed to leave at the end of the interview. Id. at 30-31, 40.
Because Doyle voluntarily spoke with the police in their car, received
assurances that he was not under arrest, and was able to leave after the
interview was complete, he was not in custody and Miranda warnings were not
required. See Faris v. State, 901 N.E.2d 1123,1126-27 (Ind. Ct. App. 2009)
(finding that defendant was not in custody and Miranda warnings were not
required where defendant went to the police station voluntarily, was questioned
for less than two hours, was never told he was under arrest, and was permitted
to go home after the interview concluded), trans. denied. Doyle had not met his
burden to show that his trial counsel was ineffective for not filing a motion to
suppress or a motion to dismiss.
[17] Doyle next claims that his trial counsel was ineffective for failing to challenge
Juror 8. He asserts that he told his trial counsel that both he and H.H. knew
Juror 8, and the juror did not inform anyone of this knowledge of the parties.
At the post-conviction hearing, trial counsel testified that he had no memory of
being told about a prior relationship between Doyle or H.H. with Juror 8. PCR
Tr. Vol. II at 243, 245. Doyle did not present any evidence to contradict this
testimony. The post-conviction court correctly concluded Doyle had failed to
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 12 of 16 meet his burden because trial counsel cannot be found to have provided
deficient representation for failing to act on information that he did not receive
from Doyle. Further, Doyle has not shown how he was prejudiced merely
because a juror might have known him and H.H.
[18] As to Doyle’s contentions that his trial counsel was ineffective for not calling
defense witnesses that could have substantiated his claims that he did not cause
the red irritation on the victim’s vaginal area and for failing to object to
statements made by the prosecutor and to the admission of four pocket knives,
Doyle has waived these arguments. Doyle did not allege these issues in his
petition for post-conviction relief. It is well settled that issues not raised in a
petition for post-conviction relief may not be raised for the first time on appeal.
Pavan v. State, 64 N.E.3d 231, 233 (Ind. Ct. App. 2016). For the first time,
Doyle now alleges that his trial counsel was ineffective for failing to call
witnesses that would have proven that he did not cause the red irritation on
H.H.’s vagina found during the sexual assault exam. Appellant’s Br. at 14. Also,
for the first time, Doyle contends that his trial counsel was ineffective for failing
to object to the admission of four pocket knives into evidence and to statements
made by the prosecutor during closing argument. Id. Because Doyle did not
raise any of these issues in his petition for post-conviction relief or before the
post-conviction court, he cannot raise them now on appeal, and they are
waived. Pavan, 64 N.E.3d at 233.
[19] Doyle further asserts that his trial counsel was ineffective for allegedly
conceding Doyle’s guilt in his opening and closing statements. Doyle points to
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 13 of 16 several statement made by his trial counsel during both his opening and closing
statements, in which Doyle claims counsel admitted Doyle’s guilt to the
charged offenses. At the post-conviction hearing, trial counsel explained that in
his opening statement he did not concede Doyle’s guilt, but only acknowledged
that there was some clear evidence that could not be disputed. PCR Tr. Vol. I. at
248. Trial counsel further stated that “we strongly argued that you were not in
possession of a weapon,” but that there were “certain things during the trial that
[Doyle] had admitted to . . . [and] some of the evidence in the case was so clear,
we couldn’t contradict [it].” Id. Therefore, the challenged statements made by
trial counsel were strategic decisions, and tactical or strategic decisions will not
support a claim of ineffective assistance. Humphrey, 73 N.E.3d at 683. Further,
during the post-conviction hearing, Doyle only questioned his trial counsel
about one challenged statement made during opening statement and did not
inquire into the statements from closing argument that he challenges on appeal.
See Appellant’s Br. at 15; PCR Tr. Vol. I at 247-49. Doyle has not met his burden
to show that his trial counsel was ineffective for statements made in his opening
and closing arguments.
[20] Doyle lastly argues that his trial counsel was ineffective for failing to challenge
the charging information because he claims there were defects. “‘The purpose
of the charging instrument is to provide a defendant with notice of the crime of
which he is charged so that he is able to prepare a defense.’” Hayden v. State, 19
N.E.3d 831, 840 (Ind. Ct. App. 2014) (quoting Ben-Yisrayl v. State, 738 N.E.2d
253, 271 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002)), trans. denied. Doyle
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 14 of 16 does not allege or present any evidence that suggests that he was unable to
defend himself based upon the charges as written. Additionally, Doyle has not
identified any particular defect in the charging information that was filed.
Appellant’s Br. at 15. In his amended petition for post-conviction relief, Doyle
alleged that trial counsel should have objected to Count IV. Appellant’s PCR
App. Vol. I at 157. Assuming that is still his claim on appeal, in order to prevail
on a claim that trial counsel should have filed a motion to dismiss Count IV,
Doyle has to demonstrate a reasonable probability that such a motion would
have been successful. Talley, 51 N.E.3d at 303. Although Doyle did not
specifically ask about the sufficiency of the charging information during the
post-conviction hearing, trial counsel testified that he did not think it was
plausible to file a motion to dismiss the charges because it would not have been
granted. PCR Tr. Vol. II at 16-17. The charging information in Count IV
contained the name of the action and the court in which it was filed, and the
name of the offense; provided the statute violated, the elements of the offense,
the date of the offense, the county of the offense, and Doyle’s name; and was
signed by the prosecuting attorney. Direct Appeal App. Vol. I at 18. Doyle has
not shown that a motion to dismiss the charging information would have been
successful and has, therefore, not met his burden to prove his trial counsel was
ineffective.
[21] Based on the above, we conclude that Doyle has failed to prove that his trial
counsel was ineffective for (1) failing to do depositions, (2) failing to investigate
the alleged Miranda violations and failing to file a motion to suppress or a
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 15 of 16 motion to dismiss the charges against him as a result of these alleged Miranda
violations, (3) failing to challenge Juror 8, (4) not calling defense witnesses, (5)
failing to object to statements made by the prosecutor during closing argument
and to the admission into evidence of four pocket knives, (6) allegedly
conceding Doyle’s guilt in his opening statement and closing argument, and (7)
failing to challenge the charging information for alleged defects. The post-
conviction court did not err in denying Doyle’s petition for post-conviction
relief.
[22] Affirmed.
Najam, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1587 | April 28, 2020 Page 16 of 16