Samuel Hampton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 15, 2015
• Docket: 49A04-1410-PC-484
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 15 2015, 8:17 am 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cynthia M. Carter Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Samuel Hampton, October 15, 2015 Appellant-Defendant, Court of Appeals Case No. 49A04-1410-PC-484 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc Rothenberg, Appellee-Plaintiff. Judge Trial Court Cause No. 49G02-0802-PC-44326

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 1 of 33 STATEMENT OF THE CASE

[1] Appellant-Defendant, Samuel Hampton (Hampton), appeals the post-

conviction court’s denial of his petition for post-conviction relief.

[2] We affirm.

ISSUES

[3] Hampton raises four issues on appeal, which we consolidate and restate as the

following two issues:

(1) Whether the post-conviction court erred in denying Hampton’s petition for

post-conviction relief because Hampton was denied effective assistance of

counsel; and

(2) Whether the post-conviction court abused its discretion by declining to

compel specific discovery and by further imposing a protective order to prohibit

Hampton from pursuing certain evidence.

FACTS AND PROCEDURAL HISTORY

[4] The facts most favorable to Hampton’s conviction were set forth in this court’s

opinion in Hampton’s direct appeal as follows:

Around Christmas in 2007, six-year-old J.B. was visiting at the home of J.B.’s great aunt, Renita Glasco [(Glasco)], and Hampton, who was Glasco’s boyfriend. At some point during that visit, while Glasco was sleeping on the couch in the home’s living room, J.B. went from the living room into a bedroom where Hampton, who was forty-seven years old, was laying on the bed wearing a t-shirt and boxer shorts. After J.B. joined Hampton on the bed, Hampton pulled down J.B.’s underwear.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 2 of 33 Hampton then “put his penis inside [J.B.’s] butt.” Hampton’s penis felt “hard and greasy,” and Hampton “was shaking it.” When Hampton’s penis touched J.B., it made J.B. feel “[n]asty.” Also around Christmas, J.B. told [Mother] that “her behind kind of hurt . . . her.”

On January 12, 2008, J.B. “came out [of] the blue” and told Mother that “she had secrets to tell [her].” J.B. told Mother that Hampton had touched her. Mother then called the police.

On January 14, 2008, Indianapolis Police Detective Genae Gehring[-Cook] [(Detective Gehring-Cook)], a child abuse detective, met with Mother and J.B. Detective Gehring[-Cook] interviewed Mother, and also sat in while Diane Bower[s] [(Bowers)], who was a child interviewer for the child advocacy center, interviewed J.B. On February 1, 2008, Detective Gehring[-Cook] also conducted interviews with Hampton, Glasco, and Mother’s sister[--Ayesha Rivers (Rivers)].[ 1]

Hampton v. State, 921 N.E.2d 27, 28 (Ind. Ct. App. 2010) (internal citations

omitted), reh’g denied, trans. denied.

[1] On February 22, 2008, the State filed an Information, charging Hampton with

Count I, child molesting, a Class A felony, Ind. Code § 35-42-4-3(a)(1) (2007);

and Count II, child molesting, a Class C felony, I.C. § 35-42-4-3(b) (2007). The

Information alleged that between July 1, 2007, and January 12, 2008, Hampton

performed or submitted to deviate sexual conduct with, as well as fondling or

1 During her interview, Rivers indicated that her own daughter, D.B.—i.e., J.B.’s cousin—had also reported having been touched inappropriately by Hampton. Following an interview with D.B., Detective Gehring- Cook elected not to pursue criminal charges, concluding that D.B.’s statements were based on conversations she had overheard rather than her actual experience.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 3 of 33 touching of, J.B. On March 12, 2008, a Public Defender was appointed to

represent Hampton, and he proceeded to conduct depositions and prepare a

defense. On September 19, 2008, at a hearing where Hampton was represented

by his Public Defender, Hampton, after being informed of his “absolute

constitutional right to[] a trial by jury[,]” declared that he wished to have the

matter decided by a bench trial. (Waiver Hrg. Tr. p. 6). The trial court found

that Hampton “knowingly and intelligently and voluntarily waived his right to

a jury trial.” (Waiver Hrg. Tr. pp. 7-8).

[2] On November 12, 2008, Hampton replaced his Public Defender with Private

Counsel. The day prior to the start of trial, on May 7, 2009, Hampton’s Private

Counsel moved to withdraw, stating that Hampton had fired him and intended

to retain new counsel. A motion for a thirty-day continuance accompanied the

withdrawal motion. That same day, the trial court denied Private Counsel’s

request to withdraw because the new attorney had not yet entered an

appearance on Hampton’s behalf, and—as the case had already been continued

numerous times—the trial court refused to delay the trial any further.

[3] On May 8, 2009, the trial court conducted a bench trial. The State’s case

centered on the testimony of J.B., who stated unequivocally that Hampton “put

his penis inside [her] butt.” (Trial Tr. p. 14). When the State rested its case-in-

chief, Hampton moved for judgment on the evidence, which the trial court

granted as to Count II only. During his case-in-chief, Hampton presented a

defense of actual innocence, arguing that J.B. had fabricated the molestation

allegations after being coached by her mother, Sharon Bryant (Mother), as

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 4 of 33 revenge for Hampton’s role in causing Mother to be evicted from an apartment.

At the close of the evidence, the trial court found Hampton guilty of Count I,

child molesting as a Class A felony. In rendering its verdict, the trial court

stated that it found “the victim in this case is [a] very credible, very articulate,

mature young lady who gave explicit details of what [Hampton] did to her.”

(Trial Tr. p. 111). On May 20, 2009, the trial court sentenced Hampton to the

minimum term of twenty years for a Class A felony.

[4] Hampton subsequently declared his intent to appeal his conviction, so the trial

court appointed Appellate Counsel to act on Hampton’s behalf. On direct

appeal, Appellate Counsel argued that the State had presented insufficient

evidence to support Hampton’s conviction, specifically contending that J.B.’s

testimony was incredibly dubious. The State cross-appealed, asserting that the

trial court had imposed an illegal sentence. On February 8, 2010, our court

affirmed Hampton’s conviction and his twenty-year sentence. See Hampton, 921

N.E.2d at 27. Based on the facts before our court, we concluded “that the

testimony of seven-year-old J.B. was not so incredibly dubious or inherently

improbable that no reasonable person could believe it.” Id. at 29.

[5] On January 30, 2012, Hampton filed a pro se petition for post-conviction relief,

and on August 8, 2012, Hampton’s post-conviction attorney filed her

appearance. While investigating grounds for post-conviction relief, Hampton’s

attorney discovered that Hampton’s file did not include a copy of Detective

Gehring-Cook’s February 1, 2008 interview with Rivers. Thus, on May 23,

2013, Hampton filed a non-party request for Rivers’ taped statement and also

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 5 of 33 served a subpoena duces tecum on Detective Gehring-Cook for a copy of the

same. On May 31, 2013, Hampton received Rivers’ statement, and after

reviewing it, Hampton’s attorney also discovered that Rivers’ minor son, R.W.

(i.e., J.B.’s cousin), had been scheduled for an interview with Bowers at the

Child Advocacy Center. Accordingly, on June 4, 2013, Hampton filed a non-

party request for the taped statement of R.W, and on June 21, 2013, Hampton

served a subpoena duces tecum on Bowers for a copy of the same.

[6] On July 19, 2013, the State filed a notice of discovery compliance, stating that

it, along with the Child Advocacy Center and the Indianapolis Metropolitan

Police Department, had “made all reasonable efforts to locate the requested

statement[] [of R.W.,] and no such statement has been found[.] Moreover the

State has not found any positive evidence that any such statement was ever

taken.” (Appellant’s App. p. 73). On July 25, 2013, Hampton filed a motion to

schedule an attorneys-only status conference, positing that, “[c]ontrary to the

State’s assertion, there is evidence R.[W].’s statement does exist. It is a

material piece of evidence. If it is missing, then the State should explain what

happened to it.” (Appellant’s App. p. 75). The post-conviction court denied

Hampton’s motion for a status conference on July 30, 2013.

[7] On August 5, 2013, Hampton, by counsel, filed a motion to amend his petition

for post-conviction relief, which the post-conviction court granted on August 8,

2013. In his amended petition, Hampton alleged that the performance of both

his trial and appellate counsel “fell below the reasonable standard of

professional care for an attorney” and that “their mistakes prejudiced the

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 6 of 33 outcome of the proceedings because there is a ‘reasonable probability’ of a

different outcome had his counselors performed adequately.” (Appellant’s

App. p. 80).

[8] On August 14, 2013, Hampton filed another verified motion to schedule an

attorneys-only status conference based on his contention that the State was

withholding R.W.’s taped statement. The same day, Hampton also filed a

motion for specific discovery to obtain a copy of R.W.’s statement. On August

22, 2013, the post-conviction court granted Hampton’s request for an attorneys-

only status conference and scheduled the matter for October 18, 2013; however,

the post-conviction court held Hampton’s motion for specific discovery under

advisement pending the State’s response. On September 16, 2013, the State

filed a motion for a protective order, arguing that, despite its formal responses

that it had unsuccessfully made all reasonable efforts to find R.W.’s statement,

Hampton’s counsel “has continued to call, annoy and harass the case detective

and the detective’s supervisors, including insinuating to the detective’s

supervisors[] that the case detective has not competently perform[ed] her job.”

(Appellant’s App. p. 100). Accordingly, the State requested an order

“[p]rotecting it from [Hampton’s] further Motions for Discovery or any further

discovery efforts in this matter, without further order from the [c]ourt.”

(Appellant’s App. p. 100). The post-conviction court granted the State’s motion

for a protective order until the issue could be discussed at the status conference.

[9] At the status conference on October 18, 2013, the State explained to the post-

conviction court that “everyone . . . who potentially could have [R.W.’s

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 7 of 33 statement] has made reasonable efforts to find it, all possible reasonable efforts

to find it[,]” but the evidence indicates that the statement does not exist. (PCR

Tr. p. 5). Accordingly, the post-conviction court determined that

as an officer of the court, I believe that [Hampton’s counsel has made a diligent effort to obtain the statement]. I also as an officer of the court believe [the prosecuting attorney] when he says that statement does not exist. Therefore, I’m going to assume that statement does not exist. I’m also going to instruct you then to stop pursuing the statement as you’ve been told it does not exist unless you have some definitive proof that it exists and [the State is] lying to you, in which case that opens up a whole nother [sic] can of worms as far as sanctions and such. I’m going to instruct you to stop pursuing it.

(PCR Tr. p. 7). On November 14, 2013, Hampton filed a Motion to Lift

Protective Order and a Motion to Protect Evidence Against Loss, Alteration,

and Destruction. On November 19, 2013, the post-conviction court denied

Hampton’s motion to lift the protective order, stating,

[Counsel] mischaracterizes court[’]s ruling in her motion. Court did not order [Counsel] to not seek [d]iscovery in this matter. Court granted State’s motion for protective order after hearing evidence that the evidence [Counsel] seeks does not exist. The court ordered that Counsel not contact witness as the State has indicated said evidence did not exist. If there is evidence that the State has purposefully [misled] the court, it should be presented, otherwise court’s previously granted order stands.

(Appellant’s App. p. 136).

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 8 of 33 [10] On April 4, 2014, the post-conviction court conducted a hearing on Hampton’s

petition for post-conviction relief. On September 22, 2014, the post-conviction

court denied Hampton’s petition, supporting its decision with specific findings

of fact and conclusions of law in accordance with Indiana Post-Conviction Rule

1(6). Specifically, the post-conviction court concluded that Hampton failed to

establish that Public Defender, Private Counsel, and Appellate Counsel

provided ineffective assistance of counsel.

[11] Hampton now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[12] Post-conviction proceedings afford petitioners a limited opportunity to raise

issues that were unavailable or unknown at trial and on direct appeal. Pruitt v.

State, 903 N.E.2d 899, 905 (Ind. 2009), reh’g denied. In a post-conviction

proceeding, the petitioner bears the burden of establishing the grounds for relief

by a preponderance of the evidence. Passwater v. State, 989 N.E.2d 766, 770

(Ind. 2013) (citing Ind. Post-Conviction Rule 1(5)). Because Hampton appeals

from denial of his petition for post-conviction relief, he “stands in the position

of one appealing from a negative judgment.” Id. Therefore, in order to prevail,

Hampton “must show that the evidence as a whole leads unerringly and

unmistakably to a conclusion opposite that reached by the post-conviction

court.” Id. On review, we accord no deference to the post-conviction court’s

legal conclusions, and we will reverse the post-conviction court’s findings and

judgment “only upon a showing of clear error—that which leaves us with a Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 9 of 33 definite and firm conviction that a mistake has been made.” Id. (quoting Ben-

Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), reh’g denied; cert. denied, 534

U.S. 830 (2001)).

II. Ineffective Assistance of Counsel

[13] Hampton claims that his conviction must be vacated because he received

ineffective assistance of both trial and appellate counsel. A claim of ineffective

assistance of counsel is premised on the Sixth Amendment to the United States

Constitution, which provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e.” At

the outset, we note that “‘counsel’s performance is presumed effective, and a

defendant must offer strong and convincing evidence to overcome this

presumption.’” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013)

(quoting Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002)), reh’g denied, trans.

denied. To satisfy this burden, the United States Supreme Court has articulated

a two-prong test for establishing ineffective assistance of counsel. See Strickland

v. Washington, 466 U.S. 668 (1984), reh’g denied. The two prongs of the

Strickland test “present independent inquiries, either of which may be sufficient

for disposing of a claim.” State v. McManus, 868 N.E.2d 778, 790 (Ind. 2007),

reh’g denied; cert. denied, 552 U.S. 1298 (2008).

[14] First, under Strickland, “a defendant must show that counsel’s performance was

deficient.” Passwater, 989 N.E.2d at 770 (citing Strickland, 466 U.S. at 687).

This prong requires the defendant to demonstrate “that counsel’s representation

fell below an objective standard of reasonableness and that counsel made errors Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 10 of 33 so serious that counsel was not functioning as ‘counsel’ guaranteed to the

defendant by the Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 687).

“Second, a defendant must show that the deficient performance prejudiced the

defense.” Id. (citing Strickland, 466 U.S. at 687). For counsel’s performance to

be prejudicial, the errors must have been “so serious as to deprive the defendant

of a fair trial, meaning a trial whose result is reliable.” Id. (citing Strickland, 466

U.S. at 687). A defendant establishes prejudice by showing “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at

694). “A reasonable probability is one that is sufficient to undermine

confidence in the outcome.” Id. (citing Strickland, 466 U.S. at 694).

A. Ineffective Assistance of Trial Counsel: Public Defender

[15] Hampton first claims that the post-conviction court erroneously denied his

petition for post-conviction relief because Public Defender’s “performance

violated the Sixth Amendment right to effective counsel and the Fourteenth

Amendment right to a fair trial.” (Appellant’s Br. p. 14). More specifically,

Hampton argues that Public Defender “failed to develop a theory of the case;

investigate the case; talk to key witnesses; preserve [Hampton’s] right to trial by

jury of his peers; consult experts; and provide proper representation at the child

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 11 of 33 hearsay hearing.” (Appellant’s Br. p. 14). We will address each purported

error in turn. 2

1. Failure to Develop a Theory of the Case

[16] Hampton first asserts that Public Defender “failed to develop a ‘theory of the

case.’” (Appellant’s Br. p. 14). The post-conviction court concluded that

Hampton’s trial counsel acted reasonably by basing the defense on a theory of

actual innocence, and our review of the record reveals that Hampton has

steadfastly maintained his innocence throughout this case. On appeal,

Hampton insists that a “bald assertion of innocence” was insufficient “to tell

the story to the fact-finder and convince the fact-finder”; rather, Public

Defender should have “put forth the facts which formed the foundation of the

defense.” (Appellant’s Br. p. 15). We note that Public Defender represented

Hampton prior to the bench trial—from March 12, 2008, until November 12,

2008. Thus, while he conducted depositions and began preparing the case for

trial, Public Defender did not present the case to the fact-finder because he was

represented by private counsel and, therefore, could not have been ineffective in

such a respect.

2 Hampton has not developed a cogent argument regarding his contention that Public Defender was ineffective by failing to consult experts; therefore, we find that he has waived this issue for appellate review. See Ind. Appellate Rule 46(A)(8)(a).

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 12 of 33 2. Failure to Investigate and Talk to Key Witnesses/Failure to Provide Adequate

Representation at Child Hearsay Hearing

[17] Hampton next alleges that Public Defender was deficient by failing to

investigate the case and talk to key witnesses. To establish a “failure to

investigate as a ground for ineffective assistance of counsel requires going

beyond the trial record to show what investigation, if undertaken, would have

produced.” McKnight v. State, 1 N.E.3d 193, 201 (Ind. Ct. App. 2013) (citing

Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), reh’g denied; cert. denied, 528

U.S. 861 (1999)). “This is necessary because success on the prejudice prong of

an ineffectiveness claim requires a showing of a reasonable probability of

affecting the result.” Id. (quoting Woods, 701 N.E.2d at 1214).

[18] Here, the post-conviction court found that Public Defender’s “investigation of

the case was sufficient” as he conducted depositions of several State witnesses,

and Hampton failed to demonstrate how further investigation would have

resulted in his acquittal. (Appellant’s App. p. 198). In turn, Hampton argues

that Bowers, the forensic interviewer who conducted J.B.’s interview at the

Child Advocacy Center, “was an essential witness for the child hearsay

hearing[,]” but Public Defender “spontaneously decided to stipulate to the

admission of the videotape of the January 18, 2008 interview.” (Appellant’s Br.

p. 15). Hampton posits that “[t]here was no strategic reason” behind Public

Defender’s failure to interview or depose Bowers or subject her to cross-

examination at the child hearsay hearing. (Appellant’s Br. p. 15).

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 13 of 33 [19] Hampton’s appellate brief is devoid of any cogent argument regarding what

Public Defender would have discovered by interviewing Bowers or how it

would have affected the outcome of his case. Instead, he cursorily suggests that

because “the child witness may have been ‘coached’ it [was] imperative to show

how such coaching (either deliberate or inadvertent) could happen.”

(Appellant’s Br. p. 17). While Public Defender stipulated to the admission of

J.B.’s interview for purposes of the child hearsay hearing only, J.B.’s recorded

statements were not admitted during the bench trial, and Bowers did not testify.

Rather, the State presented evidence of J.B.’s allegations against Hampton

through J.B.’s direct testimony, which the trial court explicitly found to be

credible. Moreover, although Hampton called Bowers to testify at the post-

conviction hearing, he did not question her regarding the content of J.B.’s

videotaped interview or her impressions thereof—i.e., whether there was

“[e]vidence of coaching.” (Appellant’s Reply Br. p. 3). Accordingly, we cannot

say that Public Defender’s decision to stipulate to the videotaped interview at

the child hearsay hearing without interviewing, deposing, or cross-examining

Bowers was deficient, let alone prejudicial to the outcome of Hampton’s case.

3. Waiver of Right to Jury Trial

[20] Hampton concedes that he knowingly, intelligently, and voluntarily waived his

right to a jury trial as the post-conviction court determined, but “he does not

know why his [P]ublic [D]efender would have recommended this tack.”

(Appellant’s Br. p. 16). According to Hampton, Public Defender “was remiss

in recommending waiving such an important and fundamental right given the

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 14 of 33 circumstances and what was at stake.” (Appellant’s Br. pp. 16-17). However,

Hampton does not expand his argument to explain how his informed decision

to proceed with a bench trial rather than a jury trial constituted ineffective

assistance.

[21] Our supreme court has previously found that waiving a jury trial is part of an

attorney’s strategic decision-making discretion. See Coleman v. State, 694 N.E.2d

269, 276 (Ind. 1998). “On appeal, we do not second guess counsel’s strategic

decisions requiring reasonable professional judgment even if the strategy or

tactic, in hindsight, did not best serve the defendant’s interests.” Elisea v. State,

777 N.E.2d 46, 50 (Ind. Ct. App. 2002). Public Defender did not testify during

the post-conviction hearing; instead, he submitted an affidavit to the post-

conviction court stating that he did “not have any independent recollection of

strategic decisions made in this case or the evidence in this case and would

defer to what is recorded in the file.” (Appellant’s App. p. 223). Nevertheless,

“courts should not insist that attorneys ‘confirm every aspect of the strategic

basis for his or her actions.’” Hinesley, 999 N.E.2d at 985 (quoting Harrington v.

Richter, 562 U.S. 86, 109 (2011)). Hampton bears the burden of showing that

Public Defender’s performance was deficient, and because he presented no

evidence pertaining to the advice he received from Public Defender as to why a

bench trial would be more suitable for the facts of this case than a jury trial, we

will not disturb the post-conviction court’s finding that Public Defender was not

ineffective by making a “strategic decision to waive the jury trial.” (Appellant’s

App. p. 200).

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 15 of 33 B. Ineffective Assistance of Trial Counsel: Private Counsel

[22] Second, Hampton claims that the post-conviction court clearly erred in denying

his post-conviction relief petition because of the ineffective representation

provided by Private Counsel. Similar to the allegations of ineffectiveness raised

with respect to Public Defender, Hampton contends that Private Counsel

“failed to investigate the case and talk to key witnesses, preserve [Hampton’s]

right to trial by jury of his peers, consult experts, and provide proper

representation at the bench trial and sentencing hearing.” (Appellant’s Br. p.

18). We will again address each purported error in turn.

1. Failure to Investigate the Case and Talk to Key Witnesses

[23] Without providing any context or a cogent argument, Hampton vaguely asserts

that Private Counsel “failed to investigate the case and talk to key witnesses” by

not speaking with Bowers; by not taking any additional statements subsequent

to Public Defender’s depositions; by not remembering Rivers’ role in the case or

“the substance of what she would have testified to”; and by presenting only two

witnesses during Hampton’s case-in-chief. (Appellant’s Br. p. 18). The post-

conviction court determined that Hampton’s

claim that [Private Counsel] also failed to investigate the case to the level of ineffectiveness also is found to be without merit. While the depositions were completed by the time [Private Counsel] took the case over, he stated that he familiarized himself with the file from [Public Defender], and prepared a witness list, and based on speaking to his client, the witnesses, and reviewing the file, was able to develop a theory of the case.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 16 of 33 (Appellant’s App. p. 198).

[24] “The Strickland ineffective assistance of counsel standard ‘require[s] no special

amplification in order to define counsel’s duty to investigate.’” Wilkes v. State,

984 N.E.2d 1236, 1241 (Ind. 2013) (quoting Strickland, 466 U.S. at 690). “In

any effectiveness case, a particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances, applying a heavy measure

of deference to counsel’s judgments.” Strickland, 466 U.S. at 691. Based on

Hampton’s perfunctory argument, we discern no basis for reversing the post-

conviction court’s finding that Private Counsel rendered effective assistance of

counsel with respect to the investigation of the case.

2. Waiver of Right to Jury Trial

[25] Hampton next contends that Private Counsel provided ineffective assistance of

counsel because he “discarded the idea of recommending a withdrawal of the

jury trial waiver because he felt it would be ‘insurmountable.’” (Appellant’s Br.

p. 19). However, Hampton does not develop his argument any further to

articulate how Private Counsel was deficient or how the decision to proceed

with a bench trial prejudiced Hampton. As a result, we find that he has waived

this issue for appellate review. See App. R. 46(A)(8)(a).

3. Consultation of Experts and Other Materials

[26] Hampton also asserts that Private Counsel was ineffective because he failed to

consult any experts in this case, attend Continuing Legal Education (CLE)

courses, or read any books about child hearsay issues. According to Hampton,

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 17 of 33 “[y]ounger children (those aged six and younger) are especially prone to

suggested memories, especially with ‘suggestive interviews.’” (Appellant’s Br.

p. 27). During the bench trial, Private Counsel argued that Mother coached

J.B.’s allegations, as evidenced by the fact that J.B.

clearly used words that were not age suitable and she obviously learned those from somebody else and I’m guessing whoever taught her those words, all of a sudden what she referred to as a dick [during the child interview] is now a penis [at trial], and somebody [has] been talking to her, the child said she’d been talked to—she went over her testimony before the trial and we heard evidence that she went over and talked about what she was going to say before the hearing on the child [h]earsay [s]tatute and before her deposition[.] [Mother] indicated in her deposition that she talked all morning, all afternoon or all day, something like that, the day before, and then the morning of, one of these statements, so clearly the child’s been talked to.

(Trial Tr. p. 106). Hampton now argues that “[P]rivate [C]ounsel did not come

up with a plausible reason how the words ‘were suggested’” and should have

consulted an expert, reviewed treatises, or attended CLE courses in order “to

support his haphazard conclusions.” (Appellant’s Br. p. 27).

[27] At the post-conviction hearing, Private Counsel testified that he reviewed

statutes and case law pertaining to child hearsay issues in preparation for the

trial. On appeal, Hampton does not articulate how any particular expert,

treatise, or CLE course would have convinced the trial court that J.B.’s

testimony was unreliable. During the post-conviction hearing, Hampton

presented no evidence from any expert to specifically demonstrate that J.B. had,

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 18 of 33 in fact, been coached. Hampton also contends that Private Counsel should

have called Bowers to testify at the bench trial “because the [forensic child]

interview itself contained the evidence necessary for supporting the claim of

implanted memories”; yet, he asked no questions of Bowers at the post-

conviction hearing to support this claim. (Appellant’s Br. p. 27). As such, “[i]t

is at best wholly speculative” that the testimony of Bowers or any other expert

“would have affected the outcome of the trial.” Harrison v. State, 707 N.E.2d

767, 779 (Ind. 1999), reh’g denied; cert. denied, 529 U.S. 1088 (2000).

[28] Moreover, at the bench trial, Detective Gehring-Cook testified that, during her

five years as a child abuse detective, she had worked on at least 125 child abuse

cases and participated in numerous interviews, and she observed Bowers’

interview with J.B. Based on her experience, Detective Gehring-Cook testified

that “it’s very common” for children to change the terminology they use for

different body parts, and often “the child is unable to give an exact date [of the

incident] . . . not because of them being smart or dumb or anything like that, it’s

just an age [in]appropriate question and they’re not able to answer that type of a

question.” (Trial Tr. pp. 50, 60). During cross-examination, Private Counsel

delved into the defense’s theory that J.B.’s allegations had been coached by

Mother, but Detective Gehring-Cook disagreed, stating:

It’s very difficult to coach [children] when they come up with details, a lot of parents when a child is coached they’re able to say like, well, yeah, he molested me or he raped me or something. But they can’t go into the details, the finer details of describing things[] that would be not normally known to a seven

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 19 of 33 year old, such as . . . the victim said in this [case], the greasiness of [Hampton’s] penis.

(Trial Tr. p. 62). In a further attempt to demonstrate that Mother had

inappropriately influenced J.B., Private Counsel asked if it was “kind of

unusual for a child of [J.B.’s] age” to be using the word “dick.” (Trial Tr. p.

64). Again, Detective Gehring-Cook responded that there was nothing

suspicious about the language utilized by J.B. as she has

heard everything from dick, penis, cock, twigs and berries from kids from ages from three and up. They use all different words and who knows where they pick them up. You know, the guy— the kid that did—with twigs and berries he picked it up from a movie, whatever—Austin Powers, you know, kids pick it up, they hear different words.

(Trial Tr. pp. 64-65). As the trial court could have relied on Detective Gehring-

Cook’s testimony even if presented with hypothetical contradictory evidence,

we cannot say that there is a reasonable probability of a different outcome.

4. Failure to Provide Adequate Representation at Bench Trial

[29] Finally, Hampton contends that Private Counsel “failed to professionally

represent Hampton” at the bench trial. (Appellant’s Br. p. 19). Private Counsel

confirmed at the post-conviction hearing that Hampton “vehemently denied the

allegations” so his defense strategy was based on a theory of innocence. (PCR

Tr. p. 39). Also, Private Counsel recalled that “there may have been

motivation” for Mother to coach J.B. into fabricating the allegations as a means

of retaliating against Hampton. (PCR Tr. p. 39). Hampton now insists that

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 20 of 33 “[i]f [Private Counsel] truly believed Hampton was innocent, then he needed to

show the trial court how the State’s witness’s allegations were implausible and

why and how the defense’s theory of the case was sound.” (Appellant’s Br. p.

20). Hampton further contends that “the [r]ecord makes clear [P]rivate

[C]ounsel did not have his basic facts straight, was unprepared for trial, and

failed to use the factual and legal tools which were readily available to him.”

(Appellant’s Br. p. 20) (footnote omitted). 3

[30] During the bench trial, Hampton testified that prior to J.B.’s allegations, Glasco

had co-signed a lease on a one-bedroom apartment for Rivers and her children.

At some point unbeknownst to Hampton and Glasco, Mother, along with her

boyfriend and J.B., moved into Rivers’ apartment. In November or December

of 2007, Hampton explained that they got a phone call in the middle of the

night from Rivers, who was irate about all of the extra people living in her

apartment. Hampton stated that he was concerned that Rivers would be

evicted, so he told Mother that she (along with her boyfriend and J.B.) needed

3 Rather than relying on authoritative citations to demonstrate that Private Counsel’s performance was deficient, Hampton cites to Wikipedia and posits that “[t]he Kipling Method of investigation” makes it “painfully clear” that Private Counsel “was hopelessly asea [sic] when Hampton most needed counsel’s guidance and help.” (Appellant’s Br. p. 20 & n.4). We find no merit in this argument. Furthermore, to the extent that Hampton merely identifies evidence not relied upon at trial—i.e., D.B.’s child interview; discusses testimony that is contrary to Hampton’s—i.e., Mother’s statements that she did not have any ill-will about being evicted from an apartment; and notes instances of mistaken factual references—i.e., Private Counsel indicating that the molestation occurred in 2008 rather than 2007 and Detective Gehring-Cook’s substitution of Rivers for Glasco in discussing the layout of Glasco and Hampton’s home, we find that he has waived the issue for appellate review because he has not developed a cogent, well-cited argument that Private Counsel’s performance was inadequate and prejudiced the outcome of his case. See App. R. 46(A)(8)(a). For the same reason, we do not address Hampton’s footnoted claim that Private Counsel’s “deficient performance is evident” based on his attempt to withdraw on the eve of the bench trial and that his only conversation with Glasco was an attempt to convince Hampton to accept a plea agreement. (Appellant’s Br. p. 20).

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 21 of 33 to vacate the apartment or he would call the police. According to Hampton, his

threat to call the police if Mother did not move out of Rivers’ apartment

angered Mother and caused her to seek revenge. However, because Hampton’s

testimony could have been “easily discard[ed] as ‘self-serving[,]’” Hampton

posits that “Glasco’s testimony was crucial” to demonstrate that Mother had a

motive for fabricating allegations through J.B. (Appellant’s Br. p. 21). Yet,

Glasco did not appear at the bench trial to testify, so Hampton contends that

Private Counsel was ineffective for failing to subpoena her.

[31] It is well established that “a decision regarding what witnesses to call is a matter

of trial strategy which an appellate court will not second-guess.” Curtis v. State,

905 N.E.2d 410, 415 (Ind. Ct. App. 2009), trans. denied. As early as March 26,

2008, Glasco was identified as a witness on the defense’s witness list. Glasco

and Hampton had been in a relationship for nearly two decades; they lived

together and maintained their relationship despite J.B.’s allegations. During the

post-conviction hearing, Private Counsel testified that Glasco “indicated

definitely a willingness to show up at trial[,]” so Private Counsel “was surprised

when she didn’t show up.” (PCR Tr. pp. 35, 41). Although the nature of her

relationship with Hampton indicates that Glasco would have appeared

voluntarily at his trial, the burden is nevertheless on the defendant to “insur[e]

that witnesses who may aid in his or her defense are called.” Montgomery v.

State, 804 N.E.2d 1217, 1221 (Ind. Ct. App. 2004), trans. denied. At the post-

conviction hearing, Private Counsel could not recall “what she would have

testified to,” but as it is evident that Private Counsel intended to use Glasco’s

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 22 of 33 testimony to aid in Hampton’s defense, his failure to secure her presence at trial

constitutes deficient performance. (PCR Tr. p. 41). See Montgomery, 804

N.E.2d at 1221 (finding trial counsel’s failure to subpoena two of the State’s

expert witnesses, or request a continuance after the State did not call them, was

deficient, and the defendant was prejudiced because “in what became

essentially a ‘battle of experts,’ corroborating expert testimony would have been

particularly powerful”).

[32] Nonetheless, the post-conviction court determined that “from her testimony at

the evidentiary hearing[,] it is apparent that Ms. Glasco’s putative testimony at

most would have been cumulative to testimony provided by [Hampton]

himself. Therefore based on the available record, . . . Hampton has failed to

establish that he was prejudiced by [Glasco’s] absence from the trial.”

(Appellant’s App. p. 201). In particular, Glasco explained that she could have

corroborated Hampton’s assertion that he wears brief-style underwear—not

boxer shorts as J.B. alleged. Also, during the trial, the State presented a

statement from Hampton that he had purchased a bike for J.B. as a Christmas

present in 2007 in order to discredit Hampton’s contention that he had a

significant falling out with J.B.’s Mother in November of 2007. Glasco stated

that she could have testified that, although Hampton contributed some money

for the bicycle, she actually went to the store and picked it out. Additionally,

Hampton points to Glasco’s deposition, in which she corroborates Hampton’s

claim that J.B. was not at their home around Christmas-time when the

molestation allegedly occurred.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 23 of 33 [33] We agree with the post-conviction court that Hampton has not demonstrated

that Glasco’s testimony would have altered the outcome of the case. The trial

court unequivocally stated that it did not find Hampton’s testimony credible

“based on his demeanor and his inability to answer questions directly and

actually just his whole personal demeanor as he testified to the extent that

[Private Counsel] says that it’s one witness’s word against the others. I

certainly find beyond a reasonable doubt that the victim in this case is credible.”

(Trial Tr. pp. 111-12). Furthermore, the trial court found that “the events that

[Hampton] said caused this all alleged fabrication occurred, prior to him, at

least at a minimum giving money to purchase a bicycle, I mean—so it just

doesn’t make sense to me.” (Trial Tr. p. 111). Thus, we cannot say that there

is a reasonable probability that Glasco’s testimony about the boxer shorts and

the bicycle would have caused the trial court to entirely discredit J.B.’s

testimony.

[34] Hampton also attacks Private Counsel’s performance for failing to vigorously

impeach J.B. with her previous statements. However, the post-conviction court

concluded that Private Counsel provided reasonably effective assistance as he

extensively cross-examined the victim regarding her memory of the crimes, various factual inconsistencies and also regarding her and her [M]other’s motives for lying. Despite [Private Counsel] having highlighted what he viewed as problem areas, the court specifically found the victim to be credible, and it is difficult to see how addressing other specific issues would have provided the victim anything other than additional opportunities to reiterate her story.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 24 of 33 (Appellant’s App. pp. 202-03). Throughout her child interview, deposition, the

child hearsay hearing, and the bench trial, J.B. did not waver in her allegation

that Hampton put his penis inside her butt. At the beginning of the bench trial,

J.B. indicated knowing the difference between a truth and a lie and answered

that the consequence of lying in court is that “[y]ou will go to jail.” (Trial Tr. p.

12). During cross-examination, Private Counsel attempted to establish that

Mother coached J.B.’s story, but when specifically asked what Mother told her

to say, J.B. answered, “She told me to tell the truth.” (Trial Tr. p. 24).

[35] Hampton now argues that, during her deposition, J.B. “recanted her allegation

and said she was ‘making it up[,]’” and Private Counsel should have presented

this “outright admission of fabrication” during the trial. (Appellant’s Br. p. 28).

Rather than following Hampton’s lead of excerpting one line from J.B.’s

deposition, we look to the statement in its full context:

Q. Well, let me ask you, I just want to make sure that you’re telling the truth. You’re not—are you making any of this up, [J.B.], or is it all—did it all really happen? A. I’m making it up. Q. You’re making the whole thing up? A. Well, it really happened. Q. It really happened. Okay. But are you telling the truth? A. Yes.

(Appellant’s Exh. B-2). From this colloquy, it could easily be concluded that

J.B. was confused by the language of the question rather than that she was

recanting her allegation. Thus, it was certainly reasonable for Private Counsel

to elect not to impeach J.B. with this specific testimony. See Slusher v. State, 823

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 25 of 33 N.E.2d 1219, 1221 (Ind. Ct. App. 2005) (Our court “‘will not speculate as to

what may or may not have been advantageous trial strategy as counsel should

be given deference in choosing a trial strategy which, at the time and under the

circumstances, seems best.’”) (quoting Whitener v. State, 696 N.E.2d 40, 42 (Ind.

1998)). 4

C. Ineffective Assistance of Appellate Counsel

[36] Third, Hampton claims that the post-conviction court erred in denying his

petition for post-conviction relief because Appellate Counsel rendered

ineffective assistance of counsel. “The standard of review for a claim of

ineffective assistance of appellate counsel is the same as for trial counsel.” Ben-

Yisrayl, 729 N.E.2d at 106. In general, ineffective assistance claims at the

appellate level “fall into three basic categories: (1) denial of access to an appeal,

(2) waiver of issues, and (3) failure to present issues well.” Ritchie v. State, 875

N.E.2d 706, 723 (Ind. 2007), reh’g denied.

[37] Rather than relying on any of the three recognized categories, Hampton

contends that Appellate Counsel was ineffective by not invoking the

Davis/Hatton procedure in light of the mistakes made by Public Defender and

Private Counsel, and “[f]oregoing the procedure left [A]ppellate [C]ounsel with

4 Similarly, Hampton also points to testimony from Mother’s deposition indicating that J.B. had problems lying to her teacher and argues that “[n]o reasonably proficient attorney would fail to use such evidence at trial.” (Appellant’s Br. pp. 28-29). We first note that, again, Hampton has failed to provide the full context of Mother’s statement, which actually states that J.B. developed several problems at school after reporting the molestation. Second, a review of the transcript confirms that Private Counsel did, in fact, extensively question Mother during the bench trial about this line from her deposition.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 26 of 33 an impaired sufficiency argument.” (Appellant’s Br. p. 31). The post-

conviction court found Hampton’s claim meritless “because of the [c]ourt’s

ruling regarding the effectiveness of his trial counsel. Since, as the [c]ourt has

found, Hampton’s trial counsel was not ineffective, it follows that Hampton’s

[A]ppellate [C]ounsel was not ineffective for failing to develop a more complete

record.” (Appellant’s App. p. 204).

[38] Sometimes, in order to establish “substandard counsel performance” where

issues “are not visible at all on the face of the trial record,” additional

investigation is necessary. Slusher, 823 N.E.2d at 1221-22. Thus, the

Davis/Hatton procedure allows for “a termination or suspension of a direct

appeal already initiated, upon appellate counsel’s motion for remand or stay, to

allow a postconviction relief petition to be pursued in the trial court.” State v.

Lopez, 676 N.E.2d 1063, 1069 (Ind. Ct. App. 1997), trans. denied. Subsequent to

a full evidentiary hearing, if the petition for post-conviction relief is denied, “the

appeal can be reinitiated.” Id. Along with the issues initially raised in the

appeal, the issues litigated in the post-conviction relief proceeding may also be

raised. Id. By utilizing this procedure, “a full hearing and record on the issue

will be included in the appeal”; whereas, appellate counsel would otherwise be

“forced to rely solely on the trial record.” Id.

[39] “We are highly deferential to [A]ppellate [C]ounsel’s decisions in deciding what

issues to raise on direct appeal.” Graham v. State, 941 N.E.2d 1091, 1099 (Ind.

Ct. App. 2011), aff’d on reh’g. Here, Appellate Counsel submitted an affidavit to

the post-conviction court, averring that the record in Hampton’s case “was very

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 27 of 33 sparse, and there was not much else to raise in the appeal other than

sufficiency.” (Appellant’s App. p. 224). He further stated that he is “well-

acquainted with the Davis/Hatton procedure (having worked for the Indiana

Public Defender’s office),” and although he did not specifically recall making

the choice to forego the Davis/Hatton procedure, he “normally do[es] not use it

and in general think[s] it is best to leave these issues to be hashed out in a post-

conviction proceeding.” (Appellant’s App. p. 224). According to Hampton,

our court rejected Appellate Counsel’s incredibly dubious testimony argument

on direct appeal, but if Appellate Counsel had expanded the record using the

Davis/Hatton procedure, “there is a reasonable probability the outcome of the

direct appeal would have been decided in Hampton’s favor.” (Appellant’s Br.

p. 31). Although it is not quite clear, Hampton appears to argue that if

Appellate Counsel had accessed J.B.’s deposition, he could have successfully

argued that her “testimony regarding the molestation was inherently

contradictory or equivocal.” (Appellant’s Br. p. 31) (quoting Hampton, 921

N.E.2d at 29).

[40] This court has previously found that “[i]n determining whether appellate

counsel’s performance was deficient, we consider the information available in

the trial record or otherwise known to appellate counsel. The role of appellate

counsel should not be measured by information unknown to appellate counsel

but later developed after the appeal by post-conviction counsel.” Seeley v. State,

782 N.E.2d 1052, 1059 (Ind. Ct. App.) (internal citations omitted), trans. denied;

cert. denied, 540 U.S. 1020 (2003). Furthermore, notwithstanding what

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 28 of 33 additional information Appellate Counsel may have garnered by suspending the

appeal to pursue a post-conviction relief petition, we are not persuaded by

Hampton’s argument that the outcome of his appeal would have been any

different. As we previously stated, J.B.’s statement in her deposition that “I’m

making it up”—when read in context with her subsequent clarification that “it

really happened” and that she was telling the truth does not establish that her

testimony at the bench trial was incredibly dubious. (Appellant’s Exh. B-2).

Therefore, we find that Appellate Counsel did not render ineffective assistance

of counsel by electing not to utilize the Davis/Hatton procedure.

III. Post-Conviction Discovery

[41] Finally, Hampton claims that the post-conviction court abused its discretion by

failing to order specific discovery and by imposing a protective order against

Hampton’s post-conviction counsel with respect to her efforts to obtain R.W.’s

taped interview. In post-conviction proceedings, “[a]ll rules and statutes

applicable in civil proceedings including pre-trial and discovery procedures are

available to the parties.” P-C.R. 1(5). In general, “[p]arties may obtain

discovery regarding any matter, not privileged, which is relevant to the subject-

matter involved in the pending action.” Ind. Trial Rule 26(B)(1). Like trial

courts, “post-conviction courts are given wide discretion in discovery matters

and ‘in determining what constitutes substantial compliance with discovery

orders, and we will affirm their determinations as to violations and sanctions

absent clear error and resulting prejudice.’” McManus, 868 N.E.2d at 790

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 29 of 33 (quoting Dye v. State, 717 N.E.2d 5, 10-11 (Ind. 1999), reh’g denied; cert. denied,

531 U.S. 957 (2000)).

[42] Pursuant to Indiana Trial Rule 34(A)(1), “[a]ny party may serve on any other

party a request . . . to produce and permit the party making the request . . . to

inspect and copy[] any designated documents or electronically stored

information . . . which are in the possession, custody or control of the party upon whom

the request is served” (emphasis added). The discovery rules additionally provide

that “[u]pon motion by any party . . . and for good cause shown,” the court

“may make any order which justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense,”

including, in part, “that the discovery not be had[,] . . . that certain matters not

be inquired into, or that the scope of the discovery be limited to certain

matters.” T.R. 26(C)(1),(4). In this case, despite the State’s assurances that it

did not possess, and was unaware of the existence of, Bowers’ taped interview

with R.W., Hampton continued to demand the evidence from Detective

Gehring-Cook and others. As a result, the post-conviction court granted the

State’s request for a protective order to instruct Hampton to stop pursing the

statement. Hampton now contends that

[t]he defense was hamstringed by the protective order, and given the fact Hampton’s theory of defense was Glasco’s family sought to exact revenge upon him due to the falling out over the apartment, the evidence was relevant and discoverable. To deny Hampton the evidence was unfair, and it should have been discovered in the first place before the May 8, 2009 bench trial.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 30 of 33 (Appellant’s Br. p. 36).

[43] At the post-conviction hearing, Bowers reviewed an intake form from the Child

Advocacy Center that she had prepared, which indicated that R.W. was pre-

scheduled for an interview on January 18, 2008—the same day as her

interviews with J.B. and D.B. The referral information on the intake form

provided simply that “[R.W.’s] sister alleges [Hampton] had touched her. [The

Department of Child Services (DCS)] needs [R.W.] interviewed, too.”

(Appellant’s App. p. 501). Thus, Bowers testified that she personally

interviewed R.W., and she wrote “N.D.” on R.W.’s intake form to denote that

R.W. did not disclose any abuse. (Appellant’s App. p. 501). Bowers further

testified that the taped interviews of J.B. and D.B. were given to Detective

Gehring-Cook, whereas R.W.’s interview was provided to a DCS family case

manager, Lucita Exom-Pope (FCM Exom-Pope), because R.W. did not make

any allegations of abuse.

[44] Nonetheless, there is also evidence that although R.W. was scheduled to be

interviewed, the interview may never have actually occurred. During Bowers’

interview with Rivers’ daughter, D.B. (who is R.W.’s younger sister and J.B.’s

cousin), Bowers inquired as to why R.W. did not accompany D.B. to the

interview. D.B. answered that R.W. was at school. Also that day, while

speaking to Rivers, Bowers indicated that DCS still needed to interview R.W.

Rivers indicated that she “thought [she] just needed [D.B.] here” or she “would

have kept [R.W.] out of school.” (Appellant’s Exh. I). In addition, Hampton

submitted an affidavit of FCM Exom-Pope at the post-conviction hearing, who

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 31 of 33 averred that “DCS has no electronic or written records of reports or notes

pertaining to any of the other children regarding the [J.B.] investigation, that

have not been provided to [Hampton’s post-conviction attorney], including the

children [D.B.] and [R.W.].” (Appellant’s App. p. 476). Detective Gehring-

Cook testified at the post-conviction hearing that she did not interview R.W.,

nor did she recall that any children other than J.B. and D.B. were interviewed

by Bowers. There is no evidence that R.W.’s interview was rescheduled for a

later date.

[45] The State is only capable of discovering evidence that is in its “possession,

custody or control.” T.R. 34(A)(1). Our deference to the trial court’s credibility

determinations is well established, and in this case, the trial court believed the

State’s claim that it “made all reasonable efforts to locate the requested

statement, and no such statement has been found[.] Moreover the State has not

found any positive evidence that any such statement was ever taken.”

(Appellant’s App. p. 73). Accordingly, we cannot say that the trial court

abused its discretion by granting the State’s protective order and by not

compelling specific discovery.

CONCLUSION

[46] Based on the foregoing, we conclude that the post-conviction court properly

denied Hampton’s petition for post-conviction relief because he received

adequate assistance of counsel at both the trial and appellate level. We further

conclude that the post-conviction court acted within its discretion concerning

the parties’ discovery dispute over R.W.’s alleged statement. Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 32 of 33 [47] Affirmed.

[48] Vaidik, C. J. and Brown, J. concur

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 33 of 33