MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 13 2016, 8:21 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 Robert A. Murphy Gregory F. Zoeller Michigan City, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert A. Murphy, May 13, 2016 Appellant-Petitioner, Court of Appeals Case No. 18A02-1507-PC-849 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Thomas A. Appellee-Respondent Cannon, Jr., Judge Trial Court Cause No. 18C05-0903-MR-1
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 1 of 8 [1] Robert Murphy appeals the post-conviction court’s denial of his petition for
post-conviction relief. Finding no error, we affirm.
Facts [2] On March 25, 2009, the State charged Murphy with the murder of Jennifer
Stafford. The charging information also contained a count of felony murder. A
bench trial was held on February 1 through 5, 2010, during which Murphy was
represented by two attorneys. Following the trial, the trial court found Murphy
guilty on both counts. However, to avoid placing Murphy in double jeopardy,
the trial court only entered judgment of conviction on the murder count. The
trial court sentenced Murphy to sixty-five years in the Department of
Correction.
[3] Murphy appealed his conviction and sentence, and this Court affirmed in a
memorandum decision. Murphy v. State, No. 18A02-1003-CR-299 (Ind. Ct.
App. April 7, 2011). On December 5, 2011, Murphy petitioned for post-
conviction relief, arguing that both his trial and appellate counsel had been
ineffective. On June 11, 2015, following a hearing, the post-conviction court
denied Murphy’s petition. Murphy now appeals.
Discussion and Decision [4] Post-conviction proceedings provide petitioners an opportunity to raise issues
that were not known at the time of the original trial or that were not available
on direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). The
petitioner has the burden of establishing his grounds for relief by a Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 2 of 8 preponderance of the evidence. Id. (citing Ind. Post-Conviction Rule 1(5)). On
appeal from the denial of a petition for post-conviction relief, the petitioner
must establish “that the evidence, as a whole, unmistakably and unerringly
points to a conclusion contrary to the post-conviction court’s decision.” Id.
[5] Murphy makes numerous arguments on appeal, many of which are difficult to
follow and lack citation to authority.1 Indiana Rule of Appellate Procedure 46
provides that the arguments contained in an appellant’s brief must be supported
by cogent reasoning and citation to relevant authority. Failure to follow this
rule may result in waiver. Pittman v. State, 45 N.E.3d 805, 820-21 (Ind. Ct.
App. 2015). In denying Murphy’s claim, the post-conviction court entered a
thorough and well-researched order that attempted to address the merits of
Murphy’s arguments whenever possible. Given our own preference for
deciding issues on their merits, to the extent that we find Murphy’s arguments
difficult to follow, we will refer to the post-conviction court’s construction of his
arguments as an aid. However, it is not this Court’s role to act as an advocate
for a party or address arguments that are too poorly developed to be
understood. Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486,
487 (Ind. Ct. App. 2003).
1 For instance, in an argument labelled “Issue 3.2,” Murphy appears to contend that the prosecutor committed misconduct by referring to inadmissible evidence during closing argument. He fails, however, to mention what the prosecutor said or otherwise identify the allegedly inadmissible evidence. Appellant’s Br. p. 16-17.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 3 of 8 [6] Murphy argues that both his trial counsel and his appellate counsel provided
him with ineffective assistance. We apply the same standard when reviewing
both sets of claims. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997). Murphy
must first show that his counsel’s performance was deficient. Wieland v. State,
848 N.E.2d 679, 681 (Ind. Ct. App. 2006) (citing Strickland v. Washington, 466
U.S. 668 (1984)). This means he must show that his counsel’s performance fell
below an objective standard of reasonableness, resulting in errors so serious as
to effectively deny him his constitutional right to counsel. Id. Second, he must
show that he was prejudiced by the deficient performance. Id. This means he
must show a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Id. Because these two
inquiries are independent, if Murphy fails to make the required showing on one,
we need not address the other. Id.
[7] Murphy first seems to argue that the State failed to present sufficient evidence
that he committed felony murder by failing to present sufficient evidence that
he committed the underlying felony, which in this case was robbery. Murphy
has not framed this as an ineffective assistance of counsel claim, but rather as a
free-standing claim of error. As such, the argument is waived; “[i]ssues that
were available, but not presented, on direct appeal are forfeited on post-
conviction review.” Ben-Yisrayl, 738 N.E.2d at 258. However, waiver
notwithstanding, Murphy cannot show prejudice, as the trial court never
entered a judgment of conviction on the felony murder count. Appellant’s Br.
p. 37.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 4 of 8 [8] Murphy next claims that the prosecutor committed misconduct by referencing
what Murphy believes to be false evidence and perjured testimony during
closing argument. Id. at 15-20. Murphy again presents this as a freestanding
claim and it is therefore waived. However, in his post-conviction petition,
Murphy appears to have presented this as a claim of ineffective assistance of
counsel, arguing that his trial counsel was ineffective for failing to object to the
admission of the evidence. Id. at 47. But, in its order denying relief, the post-
conviction court noted that Murphy “has not cited any specific instances where
he believes perjured testimony was admitted.” Id. He has also failed to cite any
instances in his brief on appeal and we cannot construct an argument for him.
Consequently, his argument is unavailing.
[9] Murphy next raises the issue of ineffective assistance in the most general sense.
Id. at 20-21.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 13 2016, 8:21 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 Robert A. Murphy Gregory F. Zoeller Michigan City, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert A. Murphy, May 13, 2016 Appellant-Petitioner, Court of Appeals Case No. 18A02-1507-PC-849 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Thomas A. Appellee-Respondent Cannon, Jr., Judge Trial Court Cause No. 18C05-0903-MR-1
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 1 of 8 [1] Robert Murphy appeals the post-conviction court’s denial of his petition for
post-conviction relief. Finding no error, we affirm.
Facts [2] On March 25, 2009, the State charged Murphy with the murder of Jennifer
Stafford. The charging information also contained a count of felony murder. A
bench trial was held on February 1 through 5, 2010, during which Murphy was
represented by two attorneys. Following the trial, the trial court found Murphy
guilty on both counts. However, to avoid placing Murphy in double jeopardy,
the trial court only entered judgment of conviction on the murder count. The
trial court sentenced Murphy to sixty-five years in the Department of
Correction.
[3] Murphy appealed his conviction and sentence, and this Court affirmed in a
memorandum decision. Murphy v. State, No. 18A02-1003-CR-299 (Ind. Ct.
App. April 7, 2011). On December 5, 2011, Murphy petitioned for post-
conviction relief, arguing that both his trial and appellate counsel had been
ineffective. On June 11, 2015, following a hearing, the post-conviction court
denied Murphy’s petition. Murphy now appeals.
Discussion and Decision [4] Post-conviction proceedings provide petitioners an opportunity to raise issues
that were not known at the time of the original trial or that were not available
on direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). The
petitioner has the burden of establishing his grounds for relief by a Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 2 of 8 preponderance of the evidence. Id. (citing Ind. Post-Conviction Rule 1(5)). On
appeal from the denial of a petition for post-conviction relief, the petitioner
must establish “that the evidence, as a whole, unmistakably and unerringly
points to a conclusion contrary to the post-conviction court’s decision.” Id.
[5] Murphy makes numerous arguments on appeal, many of which are difficult to
follow and lack citation to authority.1 Indiana Rule of Appellate Procedure 46
provides that the arguments contained in an appellant’s brief must be supported
by cogent reasoning and citation to relevant authority. Failure to follow this
rule may result in waiver. Pittman v. State, 45 N.E.3d 805, 820-21 (Ind. Ct.
App. 2015). In denying Murphy’s claim, the post-conviction court entered a
thorough and well-researched order that attempted to address the merits of
Murphy’s arguments whenever possible. Given our own preference for
deciding issues on their merits, to the extent that we find Murphy’s arguments
difficult to follow, we will refer to the post-conviction court’s construction of his
arguments as an aid. However, it is not this Court’s role to act as an advocate
for a party or address arguments that are too poorly developed to be
understood. Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486,
487 (Ind. Ct. App. 2003).
1 For instance, in an argument labelled “Issue 3.2,” Murphy appears to contend that the prosecutor committed misconduct by referring to inadmissible evidence during closing argument. He fails, however, to mention what the prosecutor said or otherwise identify the allegedly inadmissible evidence. Appellant’s Br. p. 16-17.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 3 of 8 [6] Murphy argues that both his trial counsel and his appellate counsel provided
him with ineffective assistance. We apply the same standard when reviewing
both sets of claims. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997). Murphy
must first show that his counsel’s performance was deficient. Wieland v. State,
848 N.E.2d 679, 681 (Ind. Ct. App. 2006) (citing Strickland v. Washington, 466
U.S. 668 (1984)). This means he must show that his counsel’s performance fell
below an objective standard of reasonableness, resulting in errors so serious as
to effectively deny him his constitutional right to counsel. Id. Second, he must
show that he was prejudiced by the deficient performance. Id. This means he
must show a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Id. Because these two
inquiries are independent, if Murphy fails to make the required showing on one,
we need not address the other. Id.
[7] Murphy first seems to argue that the State failed to present sufficient evidence
that he committed felony murder by failing to present sufficient evidence that
he committed the underlying felony, which in this case was robbery. Murphy
has not framed this as an ineffective assistance of counsel claim, but rather as a
free-standing claim of error. As such, the argument is waived; “[i]ssues that
were available, but not presented, on direct appeal are forfeited on post-
conviction review.” Ben-Yisrayl, 738 N.E.2d at 258. However, waiver
notwithstanding, Murphy cannot show prejudice, as the trial court never
entered a judgment of conviction on the felony murder count. Appellant’s Br.
p. 37.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 4 of 8 [8] Murphy next claims that the prosecutor committed misconduct by referencing
what Murphy believes to be false evidence and perjured testimony during
closing argument. Id. at 15-20. Murphy again presents this as a freestanding
claim and it is therefore waived. However, in his post-conviction petition,
Murphy appears to have presented this as a claim of ineffective assistance of
counsel, arguing that his trial counsel was ineffective for failing to object to the
admission of the evidence. Id. at 47. But, in its order denying relief, the post-
conviction court noted that Murphy “has not cited any specific instances where
he believes perjured testimony was admitted.” Id. He has also failed to cite any
instances in his brief on appeal and we cannot construct an argument for him.
Consequently, his argument is unavailing.
[9] Murphy next raises the issue of ineffective assistance in the most general sense.
Id. at 20-21. He argues that “[c]ounsel failed to investigate and prepare his
client’s defense and advance that at trial. Counsel failed to obtain any
independent expert analysis.” Id. at 21. In the same paragraph, he references
DNA testing. Id. at 20. The post-conviction court determined that Murphy
was referring to the fact that his DNA was not found at the crime scene, while
DNA from an unknown male was found. Id. at 42. However, counsel did raise
this issue at trial, and Murphy has failed to indicate what more his counsel
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 5 of 8 should have done. He has therefore failed to show any deficiency in his
counsel’s performance.2
[10] Murphy makes another ineffective assistance allegation in the subsequent
section of his brief, arguing that his counsel should have investigated the mental
health history of State’s witness Kenny Watson. Id. at 22. However, the post-
conviction court noted that Murphy “presented no evidence that trial counsel
failed to investigate Kenny Watson’s history of mental illness” and that
evidence before the post-conviction court indicated “that defense counsel was
well aware of any mental condition Kenny Watson may have had.” Id. at 39.
The post-conviction court noted the fact that defense counsel questioned
Watson’s mother about his mental health issues at trial. Id. Murphy has not
indicated what further investigation should have taken place nor has he
explained how he was prejudiced by the allegedly insufficient investigation. His
argument fails accordingly.
[11] Murphy next argues that his trial counsel should have raised a Brady3 claim as
he believes that the State did not provide the defense with certain photos that it
had of Murphy’s body prior to trial. However, as the post-conviction court
2 Murphy also alleges that his appellate counsel was ineffective for failing to “raise and argue meritorious issues that were clear from the fact[s] of the record, competently, on direct appeal.” Appellant’s Br. p. 24-25. Without more, such an argument is clearly too vague for this Court to address. 3 Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment”).
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 6 of 8 observed, trial counsel testified at the post-conviction hearing that the State had,
in fact, given the photos to counsel prior to trial. Id. at 50. Murphy also argues
that his trial counsel was ineffective for failing to object to the admission of an
autopsy report and the testimony of the doctor who prepared the report. Id. at
25. Murphy simply claims that “no evidence was given to support [the
doctor’s] testimony.” Id. Again, Murphy gives no citation to the record and
fails to construct a cogent argument, and we will not construct one for him. 4
[12] In sum, Murphy frequently fails to make cogent arguments, and the arguments
that we can decipher are unconvincing. Murphy has failed to show that either
his trial or appellate counsel was ineffective; as the post-conviction court
explained in its painstakingly detailed order, counsel actually did many of the
things that Murphy has accused counsel of not doing. Though Murphy
occasionally demands that counsel should have done more, he does not explain
what more could have been done, nor does he explain how he was prejudiced.
Accordingly, the post-conviction court did not err in concluding that Murphy’s
claims were unavailing.
4 Murphy ends his brief with two arguments that are also too vague for this Court to review. He argues that the post-conviction judge should have recused himself because “Murphy has shown that the trial judge has a prejudice against him.” Appellant’s Br. p. 26. Murphy does not elaborate further. He also argues that the post-conviction court failed to consider all of his arguments, but does not identify which arguments the court failed to consider.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 7 of 8 [13] The judgment of the post-conviction court is affirmed.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A02-1507-PC-849 | May 13, 2016 Page 8 of 8