MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 15 2018, 5:38 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Lyndon C. Davis Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lyndon C. Davis, October 15, 2018 Appellant-Petitioner, Court of Appeals Case No. 45A03-1708-PC-1912 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Clarence D. Appellee-Plaintiff. Murray, Judge The Honorable Kathleen A. Sullivan, Magistrate Trial Court Cause No. 45G02-1406-PC-4
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 1 of 15 [1] Lyndon C. Davis appeals the denial of his petition for post-conviction relief.
We affirm.
Facts and Procedural History
[2] The relevant facts as discussed in Davis’s direct appeal follow:
Davis was involved with Terrell Wells and Philip Blake in a drug-dealing operation. Wells was the leader, with Blake under him, followed by Davis. On the side, Blake also worked with Parrish Myles.
Following a disagreement over the whereabouts of some drugs and/or drug money, Wells put a bounty on Myles. Davis met Wells at a park where they discussed the bounty. Davis, who resides in Chicago, then accompanied Wells and some other men to Griffith, Indiana where Myles lived. Wells took Davis to an apartment complex and showed him where Myles resided, all the while stressing that Myles needed to die.
Davis’ uncle, Robert Davis (“Robert”), did not know Myles, but Davis informed him of the bounty. Davis then rode with Robert to show him where Myles lived. Once there, Davis pointed out Myles’ vehicle, and Robert parked nearby. Robert then retrieved a t-shirt and hat from the trunk of his car, and the two men sat in the car for several minutes. Myles emerged from his apartment with his two children and spoke to Davis and Robert before he began walking to his vehicle. At that point, Robert exited the car and shot Myles.
Davis then moved to the driver’s seat, Robert jumped into the passenger seat, and they drove away. Once in the car, Robert changed his shirt and hat, presumably to change his appearance during the getaway. A police pursuit ensued, and Davis exited the car, taking Robert’s discarded shirt and hat with him. Davis called Wells for a ride and was apprehended when Wells came to pick him up.
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 2 of 15 Myles died from the gunshot wounds.
Davis v. State, No. 45A04-1304-CR-207, slip op. at 2-3 (Ind. Ct. App. March 5,
2014). The State charged Davis with murder. Id. at 3.
[3] At trial, the State presented the testimony of multiple individuals including
Aniya Lawson who testified that her father, Parrish Myles, was shot by a man
that jumped back into a car, that the person that was in the passenger’s seat
moved over to the driver’s seat, and that they left. She testified that she was not
really able to see anything about the person in the car. On cross-examination,
Lawson testified that the man who did the shooting was not Davis and that the
other person who was in the car did not exit the car. Krystle Gavin testified
that she was a witness at the scene. On cross-examination, when asked if the
occupants of the car were already in the car by the time you looked over,”
Gavin answered: “The one in the maroon shirt was getting in the car.” Trial
Transcript Volume II at 99. When asked if she knew whether Davis was the
person she saw with the maroon shirt, she answered: “No, I don’t.” Id. The
court also admitted a recorded interview of Davis which was over two hours in
length and a subsequent interview of Davis which was over an hour in length.
[4] The trial court instructed the jury on accomplice liability. After the final
instructions were given and the jury was removed from the courtroom to
deliberate, the court stated: “Counsel, the jury has indicated that it is willing to
continue with deliberations, but they are tired, as I’m sure we all are.” Trial
Transcript Volume IV at 530. The court indicated that it was going to adjourn
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 3 of 15 for the night and bring them back in the morning and asked counsel if they were
“okay with that?” Id. The prosecutor indicated that the jury had “been out for
roughly slightly over nine hours” and agreed. Id. at 531. The court stated: “I
think given the circumstances with the weather and the fact that they’ve been at
this for quite a while, that it would be prudent to have them take a fresh
approach in the morning.” Id. Davis’s counsel stated: “Judge, I agree with
you. May I just ask if they communicated anything specifically to the Court
about wanting to go home or was there a note or just your decision?” Id. The
court responded that the jury indicated they were not close to reaching a verdict
and that they wanted to start again in the morning, and Davis’s counsel replied:
“Sounds good.” Id. The jury returned to the courtroom, and the court
indicated that it was going to adjourn for the evening and return the following
morning. The court instructed the jury not to: discuss the case with anyone
else; talk to attorneys, parties or witnesses; express any opinion to anyone else
about the case; or listen to or read any outside or media accounts of the trial.
The following day, the jury found Davis guilty.
[5] On direct appeal, Davis argued the evidence was insufficient to prove that he
aided, induced, or caused the commission of murder. Davis, slip op. at 3. This
Court affirmed. Id. at 6.
[6] On June 9, 2014, Davis filed a pro se petition for post-conviction relief. In July
2014, a public defender filed an appearance, Davis indicated he elected to
proceed pro se, and the public defender filed a motion to withdraw. On
September 3, 2014, Davis, pro se, filed an amended petition.
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 4 of 15 [7] On December 12, 2014, the court held a hearing. Attorney Benjamen Murphy,
Davis’s appellate counsel, and Attorney Kevin Milner, Davis’s trial counsel and
appellate co-counsel, testified. On September 19, 2016, the court denied
Davis’s petition. Discussion
[8] Before addressing Davis’s allegations of error, we observe that Davis is
proceeding pro se. Such litigants are held to the same standard as trained
counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
We also note the general standard under which we review a post-conviction
court’s denial of a petition for post-conviction relief. The petitioner in a post-
conviction proceeding bears the burden of establishing grounds for relief by a
preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);
Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse
the judgment unless the evidence as a whole 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, we accept findings of fact unless
clearly erroneous, but we accord no deference 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.
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 5 of 15 [9] Davis argues that his trial counsel and appellate counsel were ineffective on
multiple bases. Generally, to prevail on a claim of ineffective assistance of
counsel a petitioner must demonstrate both that his counsel’s performance was
deficient and that the petitioner was prejudiced by the deficient performance.
French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is
deficient if it falls below an objective standard of reasonableness based on
prevailing professional norms. Id. To meet the appropriate test for prejudice,
the petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).
Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at
824. Most ineffective assistance of counsel claims can be resolved by a
prejudice inquiry alone. Id.
[10] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Clark v. State, 668
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 6 of 15 N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second
guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). 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 which, at the
time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d
40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to
the failure to object, the defendant must show a reasonable probability that the
objection would have been sustained if made. Passwater v. State, 989 N.E.2d
766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001),
cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)). We apply the same
standard of review to claims of ineffective assistance of appellate counsel as we
apply to claims of ineffective assistance of trial counsel. Williams v. State, 724
N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied, 531 U.S. 1128, 121 S.
Ct. 886 (2001).
A. Probable Cause Affidavit
[11] Davis appears to argue that his trial counsel “could have used the deposition of
Krystle Gavin to show evidence that the probable cause affidavit contained
some false information that was very critical to the finding of probable cause.”
Appellant’s Brief at 21. He asserts that the “probable cause affidavit/search
warrant must be voided, and the fruits of the probable cause affidavit/search
warrant excluded to the same extent as if probable cause was lacking on the
face of the affidavit.” Id. at 28.
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 7 of 15 [12] Davis does not point out any specific inconsistencies between the probable
cause affidavit and Gavin’s statements.1 He does not assert that the probable
cause affidavit was admitted at trial or develop a cogent argument regarding
how he was prejudiced. We cannot say that reversal is warranted on this basis.
B. Pre-Trial Investigation and Examination of Witnesses
[13] Davis argues that his trial counsel failed to investigate his case and depose or
interview any of the State’s witnesses before trial. He asserts that Lawson and
Gavin were the State’s key witnesses and that the depositions that his trial
counsel received from the State contain “a very much inconsistent story to what
each witness had testified at the trial.” Appellant’s Brief at 30. He argues that
his trial counsel failed to attack Lawson and Gavin’s inconsistent statements at
trial.
[14] It is undisputed that effective representation requires adequate pretrial
investigation and preparation. Badelle v. State, 754 N.E.2d 510, 538 (Ind. Ct.
App. 2001), trans. denied. However, it is well-settled that we should resist
judging an attorney’s performance with the benefit of hindsight. Id. “When
deciding a claim of ineffective assistance of counsel for failure to investigate, we
1 Davis cites to “deposition of Krystle Gavin, P.C. App. p. 66” to support his assertion that “Krystle Gavin stated that she had never talked to the detectives and that the statement wasn’t true that they say she had made.” The page that Davis appears to cite comes from his proposed findings of facts and conclusions of law. See Appellant’s Appendix Volume II at 66.
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 8 of 15 apply a great deal of deference to counsel’s judgments.” Boesch v. State, 778
N.E.2d 1276, 1283 (Ind. 2002), reh’g denied.
[15] When asked by Davis about the tactics he uses to build a defense before a trial,
Davis’s trial counsel testified that he gathers all the discovery, performs his own
independent investigation, and deposes witnesses that are going to testify for the
State. He also stated: “I will certainly discuss the evidence with you to get your
input.” Post-Conviction Transcript Volume 2 at 50. When asked if he
interviewed or deposed any witnesses prior to the case, Davis’s trial counsel
answered: “I’m certain I did. I have no recollection, but I’d be shocked if I
didn’t depose all the substantive witnesses. I honestly don’t remember.” Id.
[16] With respect to the testimony of Gavin and Lawson, we observe that Davis’s
trial counsel stated:
My recollection is both she and the other witness, as you said a few minutes ago, testified to what they said they saw, and they both said they didn’t see you commit any crime. Why would I want to discredit either one of those witnesses? Those are your best witnesses? They came out there, said they saw what happened, and that you didn’t do anything wrong that they saw. I don’t want to discredit them. To the contrary, I want the jury to think that they’re the most truthful people in the trial.
Id. at 62.
[17] He also stated his decisions during trial were based on trial strategy and:
Those women, as I’ve said to you a couple of times, I’m certain I could have impeached them if one of them said this happened at
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 9 of 15 3:00 o’clock, when, in fact, on another time she said it was 3:30. Or if she said you were wearing blue pants, when, in fact, they were black. Those are not substantial inconsistencies. And even if they were, again, I am not going to attack the only witnesses who help you.
Id. at 71-72. Under the circumstances, we cannot say that reversal is
warranted.2
C. Davis’s Statement to Police
[18] Davis argues that his trial counsel failed to suppress his voluntary statement to
detectives under Evidence Rules 403 and 404.3 He acknowledges that his
2 To the extent Davis asks this Court to “weigh the witness’s credibility under the incredible dubiosity rule,” Appellant’s Brief at 35, we conclude that his claim amounts to a freestanding claim of error, which is not available in post-conviction proceedings. See Martin v. State, 760 N.E.2d 597, 599 (Ind. 2002) (“Freestanding claims that the original trial court committed error are available only on direct appeal.”); Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001) (holding that post-conviction procedures do not provide a petitioner with a “super-appeal” or opportunity to consider freestanding claims that the original trial court committed error and that such claims are available only on direct appeal), reh’g denied, cert. denied, 534 U.S. 1136, 122 S. Ct. 1082 (2002). 3 At the time of trial, Ind. Evidence Rule 403 provided: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence.” (Subsequently amended eff. January 1, 2014). Ind. Evidence Rule 404 provided in part: (a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of the accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; ***** (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 10 of 15 statements that he did not plan to commit a crime with Robert, that he was not
near the shooting to see what happened, and that he had no knowledge of the
shooting before he left the scene of the crime were “not at all incriminating
toward himself or Robert.” Appellant’s Brief at 36. He asserts that his
statement cast a shadow over his character because it referenced his criminal
lifestyle of selling drugs and associating with drug dealers and Robert’s history
of being incarcerated for a prior murder.
[19] Davis does not point to any specific portion of his recorded statements to
support his assertion that his recorded statement cast a shadow over his
character nor does he point to the record to show that he asked his trial counsel
why he did not object to or move to suppress his statement. We cannot say that
Davis has demonstrated ineffective assistance.
D. Jury Instruction
[20] Davis argues that his trial counsel failed to object to the State’s tendered jury
instructions on accomplice liability and cites Kane v. State, 976 N.E.2d 1228
(Ind. 2012).
[21] We initially note that Davis’s trial counsel testified:
the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. (Subsequently amended eff. January 1, 2014).
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 11 of 15 I felt the instructions, as a whole, meaning the entire packet of instructions that Judge Murray would be reading to the jury, I felt was an accurate statement of the law. I can’t remember which particular instruction say which particular things, but I do believe my recollection was thinking that it was a fair statement of the law, the entire group of instructions.
Post-Conviction Transcript Volume 2 at 98. He stated that he did not think
there was an error in the accessory liability instruction.
[22] In Kane, the Indiana Supreme Court held that the trial court erred by giving an
instruction on accomplice liability which did not include a mental state at all
and seemed to impose strict liability on the defendant for the unlawful acts of
another. 976 N.E.2d at 1232. Here, the instruction specifically stated in part:
“To aid under the law is to knowingly aid, support, help or assist in the
commission of a crime.” Trial Transcript Volume IV at 512 (emphasis added).
Thus, Kane is distinguishable. To the extent Davis questions how he could
have participated in the act of murder and suggests the evidence was
insufficient, we note that this raises a freestanding claim, which is not available
in post-conviction proceedings. See Martin, 760 N.E.2d at 599. Reversal is not
warranted on this basis.
E. Jury Separation
[23] Davis argues that his trial counsel failed to object to the separation of the jury
for a lengthy period of time during the process of the deliberation.
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 12 of 15 [24] Generally, “[t]he Indiana Code requires the jury to be kept together once
deliberations begin.” Bradford v. State, 675 N.E.2d 296, 304-305 (Ind. 1996)
(citing Ind. Code § 35-37-2-6(a)(1)), reh’g denied. Ind. Jury Rule 29 provides that
the “court shall not permit the jury to separate during deliberation in criminal
cases unless all parties consent to the separation” and certain instructions are
given.
[25] At the post-conviction hearing, trial counsel testified that he was “very
comfortable with letting the jury go home, get some rest, and come back and
hopefully rule my way.” Post-Conviction Transcript Volume 2 at 73. He
indicated that the trial court allowed the jury to separate because the jurors were
tired. He explained:
I believe the word tired is a good basis to allow these people to go home. I don’t remember, but often juries have elderly people, you often have people with health issues, you often have people with small children at home. I’m not going to punish this jury any more than they’re being punished by having to take time out of their lives to deliberate, unless I think it’s going hurt [sic] you. If I think it’s going to hurt you even one percent, I will make such an argument to the Court.
I saw nothing in this trial to concern me whatsoever about the jury’s behavior. I didn’t, for one minute, believe that if they were allowed to go home, that it would somehow compromise the verdict. The Judge instructed them, I’m certain, each day to ignore newspaper reports, and not discuss the case with anybody, et cetera, et cetera. So in the absence of any reason to think that this jury was going to be messed with, correct, I would not have complained about them going home. And I’m certain I didn’t.
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 13 of 15 Post-Conviction Transcript Volume 2 at 73-74. Trial counsel also testified that
all of his decisions were based on trial strategy. We cannot say that reversal is
F. Appellate Counsel
[26] Davis appears to argue that his appellate counsel was ineffective for failing to
raise the issues that he raised in his petition including that his trial counsel was
ineffective. The Indiana Supreme Court has held that appellate counsel’s
failure to raise a claim of ineffective assistance of trial counsel is not deficient
representation because the claim may be presented in post-conviction
proceedings and appellate counsel is not required to raise this claim on direct
appeal. Conner v. State, 711 N.E.2d 1238, 1252 (Ind. 1999), reh’g denied, cert.
denied, 531 U.S. 829, 121 S. Ct. 81 (2000). We also note that Davis’s trial
counsel served as co-counsel for his direct appeal and arguing one’s own
ineffectiveness is not permissible under the Rules of Professional Conduct. See
Caruthers v. State, 926 N.E.2d 1016, 1023 (Ind. 2010). Further, in light of the
discussion above, we cannot say that Davis has demonstrated that his appellate
counsel was deficient or that he was prejudiced.
Conclusion
[27] For the foregoing reasons, we affirm the post-conviction court’s denial of
Davis’s petition for post-conviction relief.
[28] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 14 of 15 Bailey, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1708-PC-1912 | October 15, 2018 Page 15 of 15