MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Nov 16 2018, 9:04 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 Rickie B. Gilliam Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Rickie Bill Gilliam, November 16, 2018 Appellant-Petitioner, Court of Appeals Case No. 79A02-1706-PC-1390 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Respondent. Judge Trial Court Cause No. 79D02-1406-PC-4
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 1 of 21 Case Summary and Issues [1] Following a jury trial, Rickie Gilliam was convicted of two counts of attempted
murder, both Class A felonies; being a serious violent felon in possession of a
firearm, a Class B felony; attempted battery, a Class C felony; and maintaining
a common nuisance, a Class D felony. The trial court sentenced Gilliam to
sixty-three years in the Indiana Department of Correction. We affirmed
Gilliam’s convictions on direct appeal. Gilliam v. State, No. 79A02-1206-CR-
482 (Ind. Ct. App. Apr. 1, 2013), trans. denied. Thereafter, Gilliam filed a
petition for post-conviction relief alleging ineffective assistance of trial counsel
which was denied by the post-conviction court. Gilliam, pro se, now appeals
the denial of post-conviction relief, raising two issues for our review which we
restate as (1) whether the post-conviction court erred in denying Gilliam’s
petition for post-conviction relief, and (2) whether Gilliam received ineffective
assistance of post-conviction counsel. Concluding the post-conviction court did
not err and Gilliam did not receive ineffective assistance of post-conviction
counsel, we affirm.
Facts and Procedural History [2] We summarized the facts and procedural history of this case in Gilliam’s direct
appeal:
Heather Short and Gilliam were involved in a romantic relationship for approximately three years and lived together in Lafayette with their three-year-old son. In December 2010, the couple argued and Gilliam pulled out a gun. Gilliam stated that Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 2 of 21 he would “kill [Heather] with the gun if [she] didn’t knock [her] sh*t off.” Heather was scared and would not leave the couple’s bedroom. At some point, Heather sent a text message to her brother, Jeremiah Short, who came to the house and went to Heather’s bedroom window. Jeremiah talked to Heather and wanted her to leave with him; however, Heather declined.
On January 8, 2011, Heather and Gilliam ended their relationship. Heather went to Jeremiah’s to stay, and at some point, Heather and Jonathan Beard, Jeremiah’s roommate, began a sexual relationship. On January 14, 2011, Heather drove Beard to his job at Penguin Liquors. Heather asked Beard if he knew of any place where she could stay that night because she “was trying to avoid her son’s father.” Beard offered to rent her a motel room for the weekend. After Beard’s shift ended at 2:00 a.m., Heather picked him up and drove to an Economy Inn, where Beard paid for a room.
After pulling up to one of the rooms, Heather and Beard noticed that the number on the door was not the same room that he had rented. Heather put the car in reverse, but at that moment, Gilliam drove up in a red vehicle. Gilliam exited his car and started shooting at Heather and Beard with a handgun. Numerous rounds hit the body of the vehicle and the windows. Beard hunched down to avoid being shot and Heather accelerated. Gilliam fired another shot that struck Heather’s windshield.
After Heather drove away, she contacted 911 and reported that Gilliam had tried to kill her and Beard. Shortly after the call, several police officers went to Gilliam’s residence and noticed a red Chevy Impala parked in the driveway, but the license plate on the vehicle was registered to Gilliam’s red Pontiac Grand Prix. The Impala was slightly covered in snow, and the engine was cold.
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 3 of 21 The officers set up a perimeter around the house and although a television was on, no one was observed entering or exiting the house. Later that morning, a SWAT team searched the house and confirmed that no one was inside. The officers discovered twelve rounds of .9mm Ruger ammunition, as well as several bags of marijuana, marijuana cigarettes, rolling papers, and digital scales. Several .25 caliber shell casings were found in the motel parking lot where the shooting occurred.
On the day of the shooting, Heather and Beard positively identified Gilliam from a photo array. Later that week, Jeremiah, who was Gilliam’s friend, observed Gilliam driving a red Pontiac Grand Prix. On February 14, 2011, the State charged Gilliam with the following offenses:
Count I—Attempted Murder, a class A felony Count II—Attempted Murder, a class A felony Count III—Attempted Aggravated Battery, a class B felony Count IV—Attempted Aggravated Battery, a class B felony Count V—Attempted Battery, a class C felony Count VI—Attempted Battery, a class C felony Count VII—Criminal Recklessness, a class C felony Count VIII—Carrying a Handgun Without a License, a class A misdemeanor Count IX—Pointing a Firearm, a class D felony Count X—Pointing a Firearm, a class D felony Count XI—Dealing in Marijuana, a class D felony Count XII—Possession of Marijuana, a class D felony, Count XIII—Maintaining a Common Nuisance, a class D felony Count XIV—Serious Violent Felon in Possession of a Firearm, a class B felony
On December 29, 2011, the State filed a notice under Indiana Evidence Rule 404(b), indicating that the State intended to offer evidence of the previous incident in December 2010 involving Gilliam’s threat to kill Heather with a handgun. Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 4 of 21 Following a hearing on December 30, 2011, the trial court ruled that evidence of the earlier incident would be admissible because it was relevant to show motive, intent, identity, and absence of mistake and accident. The trial court also noted that it would give a limiting instruction to the jury.
On April 9, 2012, Beard spoke with Officer Michael Barthelemy and again identified Gilliam as the shooter. Beard told Officer Barthelemy that Gilliam was approximately five feet away when the shooting occurred.
Gilliam’s jury trial commenced on April 16, 2012. At trial, Heather’s account of the events changed in several respects. For instance, Heather had previously told police that Gilliam had been dealing in marijuana. However, at trial, she claimed that she did not remember making that statement. When asked about the fact that Gilliam had threatened to kill her, Heather claimed that she “guessed” that was accurate. Similarly, although Heather had previously stated that she was afraid of Gilliam when he threatened to kill her, she claimed at trial that she was not really scared. Finally, although Heather had previously reported to the police that she had seen Gilliam after the first gunshot, she claimed at trial that she assumed it was him because she had seen the red car.
Laura Berry-Bermann, the Executive Director for the Indiana Coalition Against Domestic Violence, also testified at trial. Berry-Bermann testified that it is not unusual for a woman in circumstances similar to those experienced by Heather to subsequently recant or modify a prior identification of the person who committed the charged offense. Berry-Bermann stated that there are many possible explanations for this phenomenon, including a fear of retaliation and future violence, fear of the loss of income and support for a child that they may share in common, and loyalty to the father of their child.
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 5 of 21 Following the presentation of evidence, Gilliam was found guilty as charged on all counts. The trial court conducted a bench trial on the serious violent felon charge, and Gilliam was also found guilty on that count.
At the sentencing hearing, the trial court entered judgments of conviction on Counts I, II, XI, XIII and XIV. Gilliam was sentenced to an aggregate term of sixty-three years of incarceration[.]
Id. at *1-3 (citations omitted).
[3] Gilliam raised three issues on direct appeal: (1) whether trial court erred in
admitting evidence of a prior act of violence against one of the victims in
violation of Indiana Evidence Rule 404(b); (2) whether the evidence was
sufficient to support the convictions because the victims did not unequivocally
identify him as the shooter; and (3) whether his aggregate sixty-three-year
sentence was inappropriate when considering the nature of the offenses and his
character. Id. at *1. A panel of this court affirmed in all respects. Id. at *6.
[4] Gilliam sought post-conviction relief alleging ineffective assistance of trial
counsel. Following an evidentiary hearing in which post-conviction counsel
declined to call Gilliam’s trial counsel to testify as a witness, the post-conviction
court issued findings of fact and conclusions of law denying his petition on June
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 6 of 21 23, 2016.1 Thereafter, Gilliam timely filed a motion to correct error. Following
a hearing, the post-conviction court denied Gilliam’s motion to correct error on
May 26, 2017. Gilliam now appeals.
Discussion and Decision I. Standard of Review [5] Post-conviction proceedings are not an opportunity for a super-appeal; rather,
they create a narrow remedy for subsequent collateral challenges to convictions
that must be based on grounds enumerated in the post-conviction rules.
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839
(2002). A claim of ineffective assistance of counsel is properly presented in a
post-conviction proceeding if the claim is not presented on direct appeal. Id.
Post-conviction proceedings are civil in nature and a petitioner must therefore
establish his claims by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5).
[6] On appeal from the denial of post-conviction relief, a petitioner faces a
“rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).
In reviewing the judgment of a post-conviction court, we do not reweigh the
1 We commend the post-conviction court for the clarity and thoroughness of its factual findings which have aided in our review. However, due to an error with the electronic noticing system, the parties were not notified of the post-conviction court’s decision until February 3, 2017. Therefore, the post-conviction court directed the clerk to reissue the court’s prior decision and provided that any motion to correct error or notice of appeal would be due within thirty days.
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 7 of 21 evidence or reassess witness credibility and we consider only the evidence and
reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d 466,
468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of post-
conviction relief unless the evidence leads “unerringly and unmistakably to a
decision opposite that reached by the post-conviction court.” McCary v. State,
761 N.E.2d 389, 391 (Ind. 2002).
[7] Furthermore, we emphasize that pro se litigants without legal training are held
to the same legal standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d
980, 983 (Ind. Ct. App. 2016). Pro se litigants must adhere to the rules of
procedure and must be prepared to accept the consequences of their failure to
do so, including waiver for failure to present cogent argument on appeal. Id. at
983-84. An appellate brief should be prepared so that each judge, considering
the brief alone and independent of the transcript, can intelligently consider each
question presented. Pluard ex rel. Pluard v. Patients Comp. Fund, 705 N.E.2d
1035, 1038 (Ind. Ct. App. 1999), trans. denied. We “will not search the record to
find a basis for a party’s argument” nor will we “search the authorities cited by
a party in order to find legal support for its position.” Thomas v. State, 965
N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012), trans. denied. We must not become an
“advocate for a party, or address arguments that are inappropriate or too poorly
developed or expressed to be understood.” Basic, 58 N.E.3d at 984.
[8] In the course of his fourteen-page Brief of Appellant, Gilliam raises numerous
issues for our review, only two of which are formally framed as questions
presented. Almost all of these issues, however, are “too poorly developed or
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 8 of 21 expressed to be understood.” Id. Although we endeavor to discuss several
issues despite their waiver, we deem any and all remaining issues not discussed
herein to be waived. Id. at 983-84.
II. Ineffective Assistance of Trial Counsel [9] Gilliam first claims the trial court erred in denying his petition for post-
conviction relief on his claim that he received ineffective assistance of trial
counsel. We disagree.
[10] We review claims of ineffective assistance of trial counsel under the two-prong
test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a
claim of ineffective assistance of counsel, the petitioner must show his trial
counsel’s performance was deficient and the lack of reasonable representation
prejudiced him. Id. at 687. To satisfy the first prong, the petitioner must show
counsel’s representation fell below an objective standard of reasonableness and
counsel committed errors so serious petitioner did not have the “counsel”
guaranteed by the Sixth Amendment of the United States Constitution. Garrett
v. State, 992 N.E.2d 710, 718-19 (Ind. 2013). To satisfy the second prong, the
petitioner must show a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different. Id. at 719. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. These two prongs are separate and independent
inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans.
denied, cert. denied, 135 S.Ct. 2376 (2015). Therefore, “if it is easier to dispose of
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 9 of 21 an ineffectiveness claim on one of the grounds instead of the other, that course
should be followed.” Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).
[11] Notably, we recognize a strong presumption counsel rendered adequate legal
assistance and afford trial counsel “considerable discretion in choosing strategy
and tactics, and we will accord those decisions deference.” Timberlake, 753
N.E.2d at 603. Therefore, in order to overcome this strong presumption, a
petitioner must offer “strong and convincing evidence” to the contrary. Smith v.
State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans. denied.
A. Laura Bermann’s Testimony [12] Gilliam alleges his trial counsel was ineffective for failing to object to Laura
Bermann’s testimony on two different bases. In order to prove ineffective
assistance of counsel due to the failure to object, Gilliam must prove that an
objection would have been sustained if made and that he was prejudiced by the
failure. Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997), cert. denied, 525
U.S. 1073 (1999).
[13] The post-conviction court found:
[Heather] was asked at trial about the threat Gilliam made to her a month prior where Gilliam pulled a gun on her, threatened to kill her, and [Heather] texted her brother. [Heather] claimed she did not recall why Gilliam pulled a gun on her or what Gilliam said to her at the time. The State of Indiana called Laura Bermann, Executive Director of Indiana Coalition Against Domestic Violence to testify. The State posed a hypothetical question to Ms. Bermann which consisted of facts similar to
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 10 of 21 [Heather’s] situation with Gilliam and asked whether, based upon her training and experience, it would be unusual for a victim to later recant or take back what she said regarding the identification of the person the night of the shooting. Gilliam’s trial counsel initially objected to the hypothetical because it failed to include all relevant factors of the relationship. The State re- worded the hypothetical question to include additional facts. Ms. Bermann then stated her opinion, without objection, that it would not be unusual for a woman who had gone through such an experience to later recant or take back what she said regarding the identification of the person the night of the shooting. [Trial Transcript at 227-30]. She explained there are several barriers for victims of domestic violence to break away from a relationship including: fear of retaliation; loss of income and support; loyalty; lack of independence; and belief a victim can change an individual’s behavior.
Appellant’s Appendix, Volume II at 18.
[14] First, Gilliam claims,
A proper foundation was not laid for Ms. Bermann’s testimony pursuant to Indiana Rules of Evidence 403. Specifically, there was no evidence presented to demonstrate that [Heather] had previously been battered by Mr. Gilliam; as a result, her testimony was not probative to any issue in the case. However, Gilliam argues that Ms. Bermann’s testimony was highly prejudicial to Gilliam because the inference is that [Heather] was battered by Mr. Gilliam, which caused her to recant. There was no evidence presented to support Gilliam battering [Heather].
Brief of Appellant at 12 (citation omitted).
[15] Gilliam’s argument, however, is left unsupported by cogent reasoning or
adequate citation to authority. “Indiana Appellate Rule 46(A)(8) provides that Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 11 of 21 the argument section of the appellant’s brief must ‘contain the contentions of
the appellant on the issues presented, supported by cogent reasoning,’ along
with citations to the authorities, statutes, and parts of the record relied upon,
and a clear showing of how the issues and contentions in support thereof relate
to the particular facts under review.” D.H. by A.M.J. v. Whipple, 103 N.E.3d
1119, 1126 (Ind. Ct. App. 2018). Gilliam has therefore waived this issue for our
review. Id.
[16] Waiver notwithstanding, the hypothetical posed to Bermann was based on the
fact that Gilliam had previously threatened Heather with a gun—not that
Heather had previously been battered—and the State had presented evidence to
support this fact. See Trial Tr. at 147. In any event, the record reveals trial
counsel was prepared for the State’s line of questioning and had researched
caselaw on the issue. Indeed, after the State posed the hypothetical, trial
counsel requested a sidebar conference and argued the hypothetical had omitted
key facts. The trial court sustained trial counsel’s objection and the State
reframed the hypothetical accordingly. Therefore, to the extent we can discern
Gilliam’s specific claim, he has failed to demonstrate deficient performance
regarding this objection.
[17] Next, Gilliam claims his trial counsel failed to object to Bermann’s testimony as
inappropriate vouching testimony in violation of Indiana Evidence Rule 704(b).
Rule 704(b) states: “Witnesses may not testify to opinions concerning intent,
guilt, or innocence in a criminal case; the truth or falsity of allegations; whether
a witness has testified truthfully; or legal conclusions.” However, expert
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 12 of 21 testimony explaining the behavior of domestic violence victims which is not
based upon personal knowledge does not constitute impermissible vouching.
See Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App. 2012), trans. denied; Iqbal v.
State, 805 N.E.2d 401, 409-10 (Ind. Ct. App. 2004).
[18] Here, it is uncontested that Bermann did not have personal knowledge of the
case and she neither counseled nor met with Heather prior to her testimony.
Trial Tr. at 222. Bermann expressed no opinion as to the truth of Heather’s
statements and offered no testimony regarding those statements. Therefore,
Bermann’s testimony was admissible pursuant to the well-established domestic
violence exception to Rule 704(b).
[19] Despite this, Gilliam argues Bermann’s testimony violated this court’s holding
in Odom v. State, 711 N.E.2d 71 (Ind. Ct. App. 1999), trans. denied. Specifically,
Gilliam argues:
Ms. Bermann’s testimony also violated this court’s holding in [Odom] v. State, the State of Indiana used an expert witness to explain why a victim might recant. While the expert in [Odom] did not specifically mention battered woman syndrome (herein after “BWS”), the Indiana Court of Appeals ultimately determined that “because the expert’s testimony is similar to BWS testimony, we will determine the admissibility of such testimony as the admissibility of BWS, a woman must have experienced at least two violent incidents and thereafter remained in the relationship.” [Citing Odom, 711 N.E.2d at 72 n.2].
Br. of Appellant at 12 (citation omitted; emphasis added). Gilliam presents the
emphasized language as a direct quote from Odom—it is not. Instead, Gilliam
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 13 of 21 combines language from two separate locations in the opinion and reorganizes
them to support his argument that for Bermann’s testimony to have been
admissible, the record must have established Heather suffered from at least two
prior violent incidents. Whether an intentional misrepresentation or the result
of honest confusion, Gilliam’s statement of the law is incorrect. 2
[20] In Odom, the court cited People v. Christel, 537 N.W.2d 194, 200 (Mich. 1995),
for the proposition that “[t]o be considered a battered woman, with regard to
BWS, a woman must have experienced at least two violent incidents and
thereafter remained in the relationship[,]” and then concluded, “we will
determine the admissibility of [the expert’s] testimony as the admissibility of
BWS and other pattern, profile and syndrome evidence are determined.”
Odom, 711 N.E.2d at 72 n.2. However, the court’s comparison of domestic
violence testimony to BWS was not, as Gilliam contends, to prescribe the
factual basis required to present domestic violence testimony—i.e., that a
“woman must have experienced at least two violent incidents and thereafter
remained in the relationship[,]”—but rather to explain domestic violence
testimony is admissible under Rule 704(b) similar to “other pattern, profile and
syndrome evidence[.]” Id. Indeed, it is for this reason Odom held the domestic
violence testimony, almost identical to that presented here, was admissible
under Rule 704(b):
2 We reemphasize that pro se litigants are held to the same legal standards as licensed attorneys. Basic, 58 N.E.3d at 983.
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 14 of 21 . . . [the expert] testified only that it would not be unusual for a woman, who had experienced a violent incident such as that charged, to recant a prior allegation regarding that incident and the reasons she might have done so. Further, there is no evidence that [the victim] had experienced a prior incident of abuse while she was in the relationship with [the defendant].
Id.
[21] Because Bermann’s testimony was admissible under Rule 704(b), Gilliam has
failed to demonstrate his trial counsel provided deficient performance for not
objecting thereto.
B. Testimony Regarding Marijuana [22] Gilliam next argues he received ineffective assistance in trial counsel’s failure to
object to Heather’s testimony regarding Gilliam’s prior use—and potential
dealing—of marijuana. On this issue, the post-conviction court found:
At trial, the State asked [Heather]: “When you were living with the defendant was there any form of illegal drug use that went on?” She responded that “occasionally we would smoke pot together.” The State also asked her “were you aware that defendant was dealing marijuana as well?” She responded “No.” Trial counsel did not object to this line of questioning. The State then confronted [Heather] with a prior statement she made to police where she was asked: “If he’s dealing marijuana then I need you to tell me he’s dealing the marijuana? Was he?” The State then asked [Heather] “And you said ‘yeah.’ Is that accurate?” [Heather] responded “I don’t remember.”
Appellant’s App., Vol. II at 20.
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 15 of 21 [23] Gilliam’s argument on this point is entirely devoid of cogent reasoning or
citation to authority. In fact, Gilliam does not so much as specify which “rule
of evidence” his trial counsel allowed the State to violate without objection. Br.
of Appellant at 13. As such, we conclude Gilliam has waived this issue for our
review. Whipple, 103 N.E.3d at 1126.
[24] Waiver notwithstanding, we agree with the post-conviction court’s conclusion:
. . . Gilliam was charged with possession of marijuana and dealing in marijuana that occurred on or about January 15, 2011. He was also charged with maintaining a common nuisance that occurred on or about January, 2011. [Heather] lived with Gilliam up to one week prior to the attack and the discovery by police of marijuana, scales, rolling papers, etc. in Gilliam’s home. [Heather]’s testimony did not address prior bad acts. Rather, it was evidence relating to the current charges against Gilliam. As such, it was relevant to the case and not subject to objection. Therefore, the court concludes that trial counsel’s failure to object to this line of questioning was not ineffective.
Appellant’s App., Vol. II at 20-21.
[25] Gilliam then argues that his trial counsel “failed to require the State to lay a
proper foundation for the attempt to impeach the State’s own witness[.]” Br. of
Appellant at 13. Again, we find this argument waived for failure to comply
with Indiana Appellate Rule 46(A)(8). But, even if Gilliam was able to
establish trial counsel’s performance was deficient in this regard, which he
makes no effort to do, he would still be unable to demonstrate prejudice. As the
post-conviction court concluded, “the State would have eventually been
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 16 of 21 allowed to admit the details of [Heather’s] statement as a prior inconsistent
statement once [Heather] responded she did not recall it.” Appellant’s App.,
Vol. II at 21. Therefore, absent waiver, Gilliam would still fail to demonstrate
resulting prejudice.
C. Remaining Claims [26] Gilliam raises several additional claims, arguing “[t]rial counsel was ineffective
for failing to object to the mischaracterized facts, unsupported testimony and
testifying regard [sic] documents not admitted.” Br. of Appellant at 13. We
conclude all of these remaining claims—save one—are waived for failure to
comply with Indiana Appellate Rule 46(A)(8).
[27] The only claim supported by citation to authority is Gilliam’s allegation that his
trial counsel was ineffective in failing to object to Lieutenant Hayworth’s
testimony that Heather had made a statement to him regarding Gilliam’s prior
marijuana dealing. Specifically, Gilliam argues that because Heather “had
already been impeached by her previous statement, . . . Lieutenant Hayworth’s
testimony was cumulative because the statement was no longer inconsistent as
[Heather] had already admitted to it.” Br. of Appellant at 14. Gilliam contends
his trial counsel should have objected to the testimony and requested a
corresponding limiting instruction.
[28] Contrary to Gilliam’s contention, however, Heather did not confirm her
statement when confronted by her prior inconsistent statement; rather, Heather
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 17 of 21 stated “I don’t remember.” Trial Tr. at 148; see supra ¶ 22. The trial court
concluded:
Indiana Rules of Evidence provide that any party, including the party that called the witness, may attack the witness’s credibility. [Evid. R. 607]. The Rules further provide that extrinsic evidence of a witness’s prior inconsistent statement is admissible when a witness is given the opportunity to deny the statement. [Evid. R. 613(b)].
Here, [Heather] did not admit to making the statement but only stated that she did not remember making the statement. Per the Rules of Evidence, the State was allowed to bring forth extrinsic evidence through Lt. Hayworth that [Heather] indeed admitted that Gilliam dealt in marijuana as a prior inconsistent statement. Therefore, any objection trial counsel could have made to this testimony would not have been sustained and Gilliam cannot show how he was prejudiced by his counsel’s failure to object.
Appellant’s App., Vol. II at 28.
[29] On appeal, Gilliam simply reasserts his argument from his petition for post-
conviction relief. Therefore, Gilliam has failed to demonstrate the evidence
leads “unerringly and unmistakably to a decision opposite that reached by the
post-conviction court[,]” and we must affirm the post-conviction court’s
judgment. McCary, 761 N.E.2d at 391.
III. Ineffective Assistance of Post-Conviction Counsel [30] Finally, Gilliam argues his post-conviction counsel rendered ineffective
assistance by failing to “subpoena and/or secure Gilliam’s trial counsel’s
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 18 of 21 testimony during the PCR-Hearing.” Br. of Appellant at 10. Once more, we
disagree.
[31] There is no federal or state constitutional right to counsel in post-conviction
proceedings. Hill v. State, 960 N.E.2d 141, 145 (Ind. 2012).
We therefore apply a lesser standard responsive more to the due course of law or due process of law principles which are at the heart of the civil post-conviction remedy. We adopt the standard that if counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court, it is not necessary to judge his performance by the rigorous standard set forth in [Strickland].
Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989).
[32] Since Baum, our supreme court has explained that post-conviction counsel must
be more than a “warm body,” however. This standard occasionally requires a
reviewing court to look to the actual representation of post-conviction counsel
to determine whether “[c]ounsel, in essence, abandoned [their] client” by failing
to present any evidence in support of their client’s claim. Waters v. State, 574
N.E.2d 911, 911-12 (Ind. 1991) (holding post-conviction counsel rendered
ineffective assistance where the post-conviction court ordered the case
submitted on affidavits and the petitioner submitted his own inadequate
affidavits without assistance from post-conviction counsel, thus “no actual legal
representation occurred”). In two subsequent cases, Bahm v. State, 789 N.E.2d
50, 61-62 (Ind. Ct. App. 2003), trans. denied, and Taylor v. State, 882 N.E.2d 777,
783-84 (Ind. Ct. App. 2008), we held that the petitioner received ineffective
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 19 of 21 assistance of post-conviction counsel where counsel failed to submit any
evidence, particularly the trial transcript, in support of the petitioner’s claim of
ineffective assistance of trial counsel.
[33] Here, the record demonstrates that post-conviction counsel appeared and
represented Gilliam, which resulted in a judgment of the post-conviction court
now under review. Post-conviction counsel successfully admitted the record
from Gilliam’s direct appeal and relied upon the trial transcript as evidence to
support the claims he raised in Gilliam’s amended petition for post-conviction
relief. Pursuant to Baum and its progeny, therefore, Gilliam received a
procedurally fair post-conviction proceeding.
[34] To the extent Gilliam argues his post-conviction counsel was ineffective for
failing to present the testimony of his trial counsel, we view this argument as a
claim of deficient performance by post-conviction counsel. However, as
explained in Baum, deficient performance by post-conviction counsel is not a
cognizable claim under the Sixth Amendment. Matheney v. State, 834 N.E.2d
658, 663 (Ind. 2005). Put simply, the fact that post-conviction counsel chose to
rely solely on the trial transcript to support his arguments without obtaining
trial counsel’s testimony is not “abandonment” and did not deprive Gilliam of a
procedurally fair post-conviction proceeding. Id.
Conclusion
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 20 of 21 [35] The post-conviction court did not err in concluding Gilliam is not entitled to
relief on his claim that he received ineffective assistance of trial counsel and
Gilliam similarly failed to demonstrate that he received ineffective assistance of
post-conviction counsel. We therefore affirm the post-conviction court.
[36] Affirmed.
Baker, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1706-PC-1390 | November 16, 2018 Page 21 of 21