MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Apr 20 2015, 9:47 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Joel Rowley Gregory F. Zoeller Michigan City, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joel Rowley, April 20, 2015
Appellant-Petitioner, Court of Appeals Case No. 49A05-1408-PC-413 v. Appeal from the Marion Superior Court. The Honorable Marc T. Rothenberg, State of Indiana, Judge. Appellee-Respondent. The Honorable Amy J. Barbar, Magistrate. Cause No. 49G02-1003-PC-017433
Sharpnack, Senior Judge
Statement of the Case [1] Joel Rowley appeals from a negative judgment entered when the post-
conviction court denied his petition for post-conviction relief. A jury convicted
Rowley of murder and Rowley pleaded guilty to the habitual offender Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 1 of 20 enhancement. He argues that he received ineffective assistance of trial counsel
and direct appeal counsel. We affirm.
Issues [2] Rowley presents several issues for our review, which we restate as the following
broader issues, addressed with more specificity below:
I. Whether the post-conviction court failed to address one of the issues raised in Rowley’s petition for post-conviction relief. II. Whether Rowley received ineffective assistance of trial counsel. III. Whether Rowley received ineffective assistance of appellate counsel.
Facts and Procedural History [3] The facts supporting Rowley’s conviction for murder were set forth in our
memorandum decision on direct appeal. See Rowley v. State, 49A04-1102-CR-
34, 952 N.E.2d 889 (Ind. Ct. App. August 26, 2011), trans. denied. Those facts
are as follows:
In the early morning hours of March 5, 2010, Rowley and some of his acquaintances were involved in a bar fight in Indianapolis. Rowley left the altercation and went to his van, but instead of entering his van he went back into the fray and shot Leon Pepper in the back. Rowley then walked back to his van and drove away. Pepper died before emergency personnel could arrive. Slip op. p. 1.
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 2 of 20 [4] At trial, Rowley tendered a self defense instruction as noted in our opinion on
his direct appeal.
The defense of self-defense is defined by law as follows: A. A person is justified in using reasonable force against another person to protect himself or a third person from what he reasonably believes to be the imminent use of unlawful force. However, a person is justified in using deadly force only if he reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person or the commission of a forcible felony. No person in this State shall be placed in legal jeopardy of any kind whatsoever for protecting himself, his family or a third person by reasonable means necessary. B. Notwithstanding the above, a person is not justified in using force if: 1. the person is committing or is escaping after the commission of a crime[;] 2. the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or 3. the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action[.] The State has the burden of disproving this defense beyond a reasonable doubt. Appellant’s App. at 170. The trial court accepted Rowley’s tendered instruction as the court’s final instruction number four. Id. at 156. The jury found Rowley guilty as charged and the trial court entered its judgment of conviction and sentence accordingly. Id.
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 3 of 20 [5] On direct appeal, Rowley challenged the adequacy of the self defense
instruction. Id. We affirmed Rowley’s conviction after concluding that the
error, if any, was invited error because Rowley’s counsel had tendered the
challenged instruction. Id.
[6] Rowley filed a petition for post-conviction relief raising claims of ineffective
assistance of trial counsel. With respect to trial counsel, Rowley alleged that his
counsel was ineffective for failing to include in the self defense instruction
“standpoint of the defendant” language and for failing to incorporate that in the
closing argument at trial. He also alleged trial counsel was ineffective for failing
to interview a witness, Officer Derrick Hannon, and failing to call him as a
witness as trial. He also claimed that trial counsel was ineffective for failing to
advise him or his friends to surrender the gun used in the shooting to the police
department or the prosecutor’s office.
[7] With respect to appellate counsel, Rowley alleged ineffective assistance for
failing to include a challenge to the trial court’s ruling precluding Rowley from
presenting testimony about the victim’s reputation for carrying a gun.
[8] Evidentiary hearings were held on May 22, 2013, October 23, 2013, and
November 6, 2013. The post-conviction court issued an order including
findings of fact and conclusions of law ultimately denying Rowley’s petition for
post-conviction relief on July 10, 2014. Rowley now appeals.
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 4 of 20 Discussion and Decision Standard of Review for Post-Conviction Relief Proceedings [9] “The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence.” Campbell v. State, 19
N.E.3d 271, 273-74 (Ind. 2014). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. at 274. “To prevail on appeal from the denial of post-conviction
relief, a petitioner must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction
court.” Id. “Further, the post-conviction court in this case made findings of
fact and conclusions of law in accordance with Indiana Post-Conviction Rule
1(6).” Id. “Although we do not defer to the post-conviction court’s legal
conclusions, ‘[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. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted)).
Standard of Review for Assistance of Counsel [10] Rowley raises issues involving the assistance of both trial and appellate counsel.
“The standard of review for claims of ineffective assistance of appellate counsel
is the same as for trial counsel in that the defendant must show appellate
counsel was deficient in his or her performance and that the deficiency resulted
in prejudice.” Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). “When
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 5 of 20 evaluating an ineffective assistance of counsel claim, we apply the two-part test
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).” Id. “To satisfy the first prong, ‘the defendant must show
deficient performance: representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have
the ‘counsel’ guaranteed by the Sixth Amendment.’” Id. (quoting McCary v.
State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687-88)).
“To satisfy the second prong, ‘the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence in the
outcome) that, but for counsel’s errors, the result of the proceeding would have
been different.’” Id. (quoting McCary, 761 N.E.2d at 392 (citing Strickland, 466
U.S. at 694)). If our review can dispose of an ineffective assistance claim on the
prejudice prong, we need not address whether counsel’s performance was
deficient. Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). “There is a strong
presumption that counsel rendered adequate service.” Bethea v. State, 983
N.E.2d 1134, 1139 (Ind. 2013).
I. Post-Conviction Court Omission [11] Rowley claims that the post-conviction court failed to address an issue raised by
Rowley in his petition for post-conviction relief. He alleged ineffective
assistance of trial counsel for failing to interview Officer Derrick Hannon and
for failing to call Officer Hannon as a witness at trial.
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 6 of 20 [12] Indiana Post-Conviction Rule 1(6) explicitly requires that post-conviction
courts make “specific findings of fact and conclusions of law on all issues
presented . . . .” Where the post-conviction court fails to enter findings of fact
and conclusions of law on an issue presented in a petition for post-conviction
relief, remand for the entry of findings and conclusions on that issue is
appropriate. Dowdell v. State, 720 N.E.2d 1146, 1152 (Ind. 1999). This is so,
because “[t]he principal purpose of findings of fact ‘is to have the record show
the basis of the trial court’s decision so that on review the appellate court may
more readily understand the former’s view of the controversy.’” Id. (quoting
Love v. State, 257 Ind. 57, 59, 272 N.E?.2d 456, 458 (1971) (quoting 3 William
F. Harvey, Indiana Practice 426 (1970))). “Findings of fact must be ‘sufficient to
enable this Court to dispose of the issues upon appeal.’” Id. (quoting Taylor v.
State, 472 N.E.2d 891, 892 (Ind. 1985)).
[13] Here, the post-conviction court failed to address the issue in its order. Rowley
correctly notes this error in his statement of the issues, but fails to present any
argument on the topic in his brief. “Failure to present a cogent argument for
such an issue operates as a waiver of that issue on appeal.” Bieghler v. State, 481
N.E.2d 78, 89 (Ind. 1985). “Errors alleged by defendant but not presented and
argued in the argument section of [the] defendant’s brief are waived.” Guardiola
v. State, 268 Ind. 404, 406, 375 N.E.2d 1105, 1107 (1978). “It is the
responsibility of the defendant to support his contentions with appropriate
citations to the record as well as to legal authorities. Without such assistance,
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 7 of 20 [a court on review] cannot determine the merits of his claim and will consider it
waived.” Bieghler, 481 N.E.2d at 89.
[14] “Nevertheless, an appellate court may affirm a trial court’s judgment on any
theory supported by the evidence.” Dowdell, 720 N.E.2d at 1152. Therefore,
we will review the record and consider the merits of Rowley’s claim in our
discussion of the performance of his trial counsel.
II. Ineffective Assistance of Trial Counsel A. Self Defense Instruction [15] Rowley argues that his trial counsel was ineffective by failing to tender a self
defense instruction that highlighted the requirement that when evaluating a self
defense claim the evidence should be viewed from the perspective or standpoint
of the defendant. In conjunction with that argument, he claims that trial
counsel should have highlighted that subjective component in closing
argument.
[16] Here, the self defense instruction set forth above essentially tracks the pertinent
language of the self defense statute. Ind. Code §35-41-3-2 (2006). In
Washington v. State, 997 N.E.2d 342, 349 (Ind. 2013), the Supreme Court re-
emphasized the holding that the “self-defense statute requires both a subjective
belief that force was necessary to prevent serious bodily injury and that a
reasonable person under the circumstances would have such an actual belief.”
Therefore, self defense comprises both a subjective and objective component.
Id. In considering “standpoint of the defendant” language, the Supreme Court
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 8 of 20 has emphasized that “the jury should examine circumstances as they appeared
to the defendant. But while the defendant’s own account is critically relevant,
the stand is still the reasonableness of the belief of the defendant.” Id.
“Focusing on the ‘standpoint of the defendant’ means at least two things: (1)
the trier of fact must consider the circumstances as they appeared to the
defendant, rather than to the victim or anyone else; and (2) the defendant’s own
account, although not required to be believed, is critically relevant testimony.”
Id. at 350.
[17] Here, if trial counsel had tendered an instruction focusing solely on the
defendant’s subjective belief, the instruction, while correct, would not have
been a complete statement of the law. Rowley did not present the post-
conviction court with an instruction he believes should have been given.
Therefore, it is impossible to evaluate whether the instruction he favors is
accurate and appropriate.
[18] Further, the instruction that was given did instruct the jury that the standard to
be used was what Rowley reasonably believed at the time of the infliction of the
injury. The post-conviction court noted that the tendered instruction was
nearly identical to the instruction the trial court intended to give, but did not
because Rowley’s was better and more appropriate. This was so because
Rowley’s instruction added language regarding the protection of third persons,
which was at the heart of Rowley’s defense.
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 9 of 20 [19] Rowley’s trial counsel testified that he believed that during closing argument he
did highlight the “standpoint of the defendant.” The record reflects that trial
counsel argued to the jury that Rowley acted reasonably and was justified in
shooting the victim because he believed the victim was going to shoot his
friend. Therefore, trial counsel did effectively inform the jury that the proper
perspective from which to evaluate the evidence was the defendant’s viewpoint.
Rowley’s counsel correctly argued the law to the jury. See id. at 348-49.
Rowley has not met his burden of establishing that he was denied effective
assistance of trial counsel.
B. Failure to Investigate [20] Rowley maintains that his trial counsel was ineffective by failing to interview
Officer Hannon and by failing to call him as a witness at trial. Rowley argues
that had trial counsel interviewed Officer Hannon he would have secured
testimony conflicting with the State’s presentation of how Rowley’s jogging suit
was preserved, and that Rowley was intoxicated at the time of his arrest and
subsequent statement to police. Rowley claims that his trial counsel should
have used the intoxication evidence to suppress Rowley’s statement to police in
which he claimed not to be the shooter. That statement, which Rowley hoped
to characterize as involuntary due to his intoxication, was inconsistent with
Rowley’s claim of self defense.
[21] The Supreme Court has explained appellate review of claims alleging a failure
to investigate as follows:
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 10 of 20 With the benefit of hindsight, a defendant can always point to some rock left unturned to argue counsel should have investigated further. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that it deprived the defendant of a fair trial. Strickland, 466 U.S. at 686, 104 S. Ct. 2052. Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Wiggins v. Smith, 539 U.S. 510, 533, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003). This would interfere with the constitutionally protected independence of counsel at the heart of Strickland. Id. Rather, we review a particular decision not to investigate by looking at whether counsel’s action was reasonable in light of all the circumstances. Id. at 521-22, 123 S. Ct. 2527. In other words, counsel has a duty to make a reasonable investigation or to make a reasonable decision that the particular investigation is unnecessary. Id. at 521, 123 S. Ct. 2527. A strategic choice not to present mitigating evidence made after thorough investigation of law and relevant facts is virtually unchallengeable, but a strategic choice made after less than complete investigation is challengeable to the extent that reasonable professional judgment did not support the limitations on the investigation. Id. Thus, the Court’s principal concern is not whether counsel should have presented more in mitigation but whether the investigation supporting their decision not to introduce mitigating evidence was itself reasonable. Id. at 523, 123 S. Ct. 2527. Ritchie v. State, 875 N.E.2d 706, 719-20 (Ind. 2007).
[22] Rowley contended that Officer Hannon, the officer to whom he surrendered,
informed him that the police would want his jacket and his van as part of their
investigation, and that he told Officer Hannon where he would leave his entire
jogging suit worn by him at the time of the crime and where his van would be
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 11 of 20 located. Rowley claimed that he told trial counsel what he had done with the
jogging suit and his van and asked counsel to contact Officer Hannon. Rowley
stated that trial counsel informed him that he was unable to locate Officer
Hannon. At the evidentiary hearing, trial counsel testified that he did not recall
that there was an issue at trial regarding Rowley’s disposition of his clothing,
and stated that he did not recall speaking with Rowley about his clothing.
[23] Officer Hannon testified during the evidentiary hearing. He stated that he
attempted to avoid discussing the case with Rowley while transporting him to
the police station because he was not the investigating officer. Further, he
testified that he could not recall advising Rowley about what to do with the
clothing he had been wearing at the time of the crime.
[24] Other than Rowley’s own testimony at the evidentiary hearing, there was no
evidence presented demonstrating that an interview of Officer Hannon would
have produced any relevant testimony about the clothing Rowley wore that
would have been any benefit to his defense. Furthermore, Rowley did not meet
his burden of establishing that had trial counsel interviewed Officer Hannon the
outcome of his trial would have been any different.
[25] Similarly, Rowley has not met his burden of presenting evidence to support his
claim that had trial counsel interviewed Officer Hannon he would have gleaned
evidence to support a motion to suppress Rowley’s statement to police. Rowley
argues now that trial counsel should have moved to suppress his statement that
he was not the shooter on the ground that it was involuntary due to Rowley’s
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 12 of 20 intoxication. That statement was at odds with the trial strategy that he acted in
self defense. “To prevail on an ineffective assistance of counsel claim based
upon counsel’s failure to file motions on a defendant’s behalf, the defendant
must demonstrate that such motions would have been successful.” Wales v.
State, 768 N.E.2d 513, 523 (Ind. Ct. App. 2002), trans. denied.
[26] Here, Rowley claimed that his statement to police was involuntary because he
was intoxicated at the time. “Statements are inadmissible due to intoxication
only when an accused is intoxicated to the point that he is unaware of what he
is saying.” Wilkes v. State, 917 N.E.2d 675, 680 (Ind. 2009). “Intoxication to a
lesser degree goes only to the weight to be given the statement.” Id.
[27] Rowley testified at the evidentiary hearing that he drank two or three double
shots of Absolut Vodka and a Corona, and that by the time he left the bar with
Officer Hannon, he was feeling the effects of his alcohol consumption. Officer
Hannon testified that although he allowed Rowley to finish his drink before
escorting him to the police station for questioning, he did not observe any signs
that Rowley was intoxicated.
[28] “Whether a witness’ testimony at a post-conviction hearing is worthy of credit
is a factual determination to be made by the trial judge who has the opportunity
to see and hear the witness testify.” State v. McCraney, 719 N.E.2d 1187, 1191
(Ind. 1999). “It is not within an appellate courts province to replace the trial
court’s assessment of credibility with its own.” Id. Since the post-conviction
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 13 of 20 court denied Rowley’s petition, a reasonable inference is that the post-
conviction court found Officer Hannon’s testimony more credible.
[29] Rowley’s testimony did not establish that he was so intoxicated that he did not
know what he was saying when he was interviewed by police officers. In
addition, his trial testimony did not indicate that he was claiming that he was
intoxicated when speaking with police officers. Therefore, Rowley has not
established that a motion to suppress his statement to police as involuntary due
to intoxication would have been granted if raised. Consequently, Rowley has
not established that trial counsel’s failure to interview Officer Hannon and then
call him as a witness at trial prejudiced his defense. We find no error here.
C. Failure to Advise [30] Rowley claims that his trial counsel was ineffective by failing to advise him to
personally turn over the murder weapon or to have relatives do so on his behalf.
Because the prejudice part of this test is dispositive of this issue, we do not
address the alleged deficiency in trial counsel’s performance.
[31] Rowley testified that he had discussed turning over the murder weapon to
authorities with his trial counsel. He claimed that trial counsel informed him
that if the State did not request it, there was no reason to turn over the weapon.
Trial counsel testified that he had no recollection of a conversation with Rowley
about the weapon.
[32] Had counsel advised Rowley to surrender the gun, this conduct would not have
refuted the State’s contention that Rowley’s conduct—leaving the scene of the Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 14 of 20 murder rather than staying and immediately turning the gun over to police—
constituted evidence of Rowley’s guilty conscience, instead of the righteous
defense of a friend. If Rowley had surrendered the weapon to authorities after
consulting with his attorney, the State could have argued that he fled the scene
of the murder with the murder weapon and only surrendered it upon the advice
of counsel.
[33] This would not have altered the outcome of Rowley’s trial. The State
introduced a video tape showing Rowling shooting the unarmed victim in the
back. Rowley has not demonstrated how trial counsel’s failure to advise him to
turn the gun over to police prior to trial would have produced a different
outcome at trial. We find no prejudice here.
III. Ineffective Assistance of Appellate Counsel [34] Rowley claims that he received ineffective assistance of appellate counsel. “As
for appellate counsel, ineffective assistance claims ‘generally fall into three basic
categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure
to present issues well.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013)
(quoting Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)). Here, Rowley’s
allegation falls under the second category, waiver of issues.
[35] “To show that counsel was ineffective for failing to raise an issue on appeal, the
defendant must overcome the strongest presumption of adequate assistance,
and judicial scrutiny is highly deferential.” Manzano v. State, 12 N.E.3d 321,
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 15 of 20 329 (Ind. Ct. App. 2014) (citing Reed v. State, 856 N.E.2d 1189, 1195 (Ind.
2006)), trans. denied. Furthermore,
To evaluate the performance prong when counsel failed to raise issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are “clearly stronger” than the raised issues. If the analysis under this test demonstrates deficient performance, then we examine whether “the issues which . . . appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial.” Ineffective assistance is very rarely found in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal because the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel. Id. at 329-30. (internal quotes omitted).
[36] Rowley claims that his appellate counsel was ineffective for failing to present
any argument challenging the trial court’s ruling before trial that Rowley could
not present evidence of the victim’s reputation for carrying a gun. Rowley’s
direct appeal counsel testified at one of the evidentiary hearings that she did not
recall having a strategic reason for not raising the issue on direct appeal.
[37] First, we note that the issue was not preserved for direct appellate review. “A
pre-trial hearing or a motion in limine is appropriate to determine the
admissibility of evidence outside of the jury’s hearing.” Mitchell v. State, 742
N.E.2d 953, 956 (Ind. 2001). “However, in order to preserve an error for
appellate review, a party must do more than challenge the ruling on a motion in
limine.” Id. “[T]o raise the question of error, the evidence must be offered at
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 16 of 20 trial to give the trial court an opportunity to rule on its admissibility at that
time.” Id. (quoting Tyra v. State, 506 N.E.2d 1100, 1103 (citations omitted)). A
defendant who fails to offer the evidence excluded at the hearing prior to trial
has not preserved the error for appellate review. Id.
[38] “To reverse a trial court’s decision to exclude evidence, there must have been
error by the court that affected the defendant’s substantial rights and the
defendant must have made an offer of proof or the evidence must have been
clear from the context.” Harman v. State, 4 N.E.3d 209, 215 (Ind. Ct. App.
2014), trans. denied. “A party traditionally makes an offer to prove after the trial
court has sustained an objection to the admission of the party’s evidence.” Id.
at 216. “However, it may also be made before the trial court’s ruling on an
objection in order to aid in the admissibility ruling.” Id. Consequently, because
Rowley did not attempt to offer proof of the handgun reputation evidence, the
error was not preserved for appellate review. “Appellate counsel cannot be
faulted for failing to raise what would have been a meritless claim.” Overstreet v.
State, 877 N.E.2d 144, 167 (Ind. 2007).
[39] A fundamental error argument was unavailable to appellate counsel.
“Fundamental error is an extremely narrow exception to the waiver rule where
the defendant faces the heavy burden of showing that the alleged errors are so
prejudicial to the defendant’s rights as to ‘make a fair trial impossible.’” Ryan v.
State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748,
756 (Ind. 2002)). “In other words, to establish fundamental error, the
defendant must show that, under the circumstances, the trial judge erred in not
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 17 of 20 sua sponte raising the issue because alleged errors (a) ‘constitute clearly blatant
violations of basic and elementary principles of due process’ and (b) ‘present an
undeniable and substantial potential for harm.’” Id. “The element of such
harm is not established by the fact of ultimate conviction but rather ‘depends
upon whether [the defendant’s] right to a fair trial was detrimentally affected by
the denial of procedural opportunities for the ascertainment of truth to which he
otherwise would have been entitled.’” Id. Our Supreme Court has stressed
“that ‘[a] finding of fundamental error essentially means that the trial judge
erred . . . by not acting when he or she should have. . . .’” Id. (quoting Whiting
v. State, 969 N.E.2d 24, 34 (Ind. 2012)). “Fundamental error is meant to permit
appellate courts a means to correct the most egregious and blatant trial errors
that otherwise would have been procedurally barred, not to provide a second
bite at the apple for defense counsel who ignorantly, carelessly, or strategically
fail to preserve an error.” Id.
[40] Rowley has failed to argue or demonstrate that the exclusion of this evidence
would have constituted fundamental error. Therefore, Rowley has not met his
burden of demonstrating that this unpreserved issue is clearly stronger than the
issue raised in his direct appeal or that its admission would likely have
produced a different result at trial. It is reasonable to conclude that appellate
counsel was reasonable in not raising this claim in Rowley’s direct
appeal.
[41] A strategic decision not to present the issue finds support in case law holding
that “[w]here character evidence is introduced to show the victim’s violent
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 18 of 20 nature and to show that the defendant had reason to fear the victim, a
foundation is required before that evidence is admissible. That foundation
consists of a showing that the defendant had knowledge of the specific bad acts
communicated to him prior to the [crime].” Norris v. State, 498 N.E.2d 1203,
1205 (Ind. 1986). “Indiana’s general rule prohibits proof of the character of the
deceased.” Phillips v. State, 550 N.E.2d 1290, 1297 (Ind. 1990), abrogated on
other grounds by Fry v. State, 990 N.E.2d 429 (Ind. 2013)). “Where a self-defense
claim is raised, however, there is an exception.” Id. “Evidence of specific bad
acts by the victim is then admissible to show that the victim had a violent
character and that the defendant had reason to fear the victim, but it is
incumbent on the defendant to make a foundational showing that he had
knowledge of those specific bad acts prior to the [crime] before such evidence
may be admitted.” Id.
[42] Rowley has not presented evidence at trial or at his post-conviction proceeding
that at the time of the murder he had any knowledge that the victim had a
reputation for carrying a gun or a reputation for violence. The record reflects
that Rowley had never met the victim and did not know anything about him
prior to the night of the shooting. Therefore, Rowley could not have met the
foundational prerequisite for the admission of that evidence. Thus, the
evidence was irrelevant to Rowley’s claim of self defense and was properly
excluded by the trial court.
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 19 of 20 Conclusion [43] Rowley has not met his burden of establishing that the post-conviction court’s
omission warrants a remand of Rowley’s case, that his trial counsel was
ineffective, or that his appellate counsel was ineffective. In light of the
foregoing, we affirm the judgment of the post-conviction court.
[44] Affirmed.
Bailey, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015 Page 20 of 20