FRIEDLANDER, Judge.
John R. Myers II appeals from the denial of his petition for post-conviction relief (PCR). He raises the following restated issues on appeal:
We affirm.
The facts underlying Myers's conviction were set forth as follows in this
Myers v. State, 887 N.E.2d 170, 176-80 (Ind.Ct.App.2008) (footnotes and citations to the record omitted), trans. denied. A grand jury indicted Myers for Behrman's murder in April 2006. A twelve-day jury trial commenced on October 16, 2006, at the conclusion of which Myers was found guilty as charged and sentenced to a term of sixty-five years. This court affirmed Myers's conviction on direct appeal and our Supreme Court denied transfer.
Myers filed a pro se PCR petition on February 2, 2009. Counsel subsequently entered appearances on Myers's behalf and amended the petition. An evidentiary hearing was held over several days in April and May 2013, at the conclusion of which the post-conviction court took the matter under advisement. The post-conviction court issued its written order denying Myers's PCR petition on November 18, 2013. Myers now appeals.
In a post-conviction proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Bethea v. State, 983 N.E.2d 1134 (Ind.2013). "When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment." Id. at 1138 (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004)). In order to prevail, the petitioner must demonstrate that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the post-conviction court's conclusion. Bethea v. State, 983 N.E.2d 1134. Although we do not defer to a post-conviction court's legal conclusions, we will reverse its findings and judgment only upon a showing of clear error, i.e., "that which leaves us with a definite and firm conviction that a mistake has been made." Id. at 1138 (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000)).
Myers first argues that his trial counsel were constitutionally ineffective.
There is a "strong presumption" that counsel rendered adequate service. Bethea v. State, 983 N.E.2d at 1139. "We afford counsel considerable discretion in choosing strategy and tactics, and `[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.'" State v. Hollin, 970 N.E.2d 147, 151 (Ind.2012) (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001)) (alteration in original). Indeed, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. 2052. Moreover, because a petitioner must prove both deficient performance and prejudice in order to succeed, the failure to prove either element defeats the claim. See Young v. State, 746 N.E.2d 920 (Ind.2001) (holding that because the two elements of Strickland are separate and independent inquiries, the court may dispose of the claim on the ground of lack of sufficient prejudice if it is easier). Myers has raised numerous claims of ineffective assistance of trial counsel. We address them each in turn.
Myers raises a number of arguments with respect to the admission into evidence of a redacted version of his May 2, 2005 police interrogation. First, he argues that trial counsel were ineffective for agreeing to the redactions because portions of the statement in which he denied any involvement in Behrman's disappearance and murder were excised, and those statements would have been helpful to the defense.
The interrogation in question was conducted in two parts. In the first part of the interview, Myers was questioned by Indiana State Police Detectives Rick Lang and Tom Arvin, and Myers repeatedly denied any involvement in or knowledge of Behrman's disappearance and murder. Myers was then arrested on a separate charge of receiving stolen property, booked, fingerprinted, and swabbed for DNA. Thereafter, a second, post-arrest interview was conducted by Detective Jeff Heck, during which Myers again denied any involvement in Behrman's disappearance and murder. The State, defense, and trial court spent a substantial amount of time discussing redactions of the interrogation. Ultimately, the jury heard an audio recording of and was provided with a written transcript of the partially redacted pre-arrest interview; the post-arrest interview was omitted entirely. Myers does not appear to object to the manner in which the pre-arrest interview was redacted. Instead, he argues that the jury should also have heard the post-arrest interview.
Myers also argues that counsel performed deficiently by failing to object to portions of Detective Arvin's and Detective Lang's testimony concerning the May 2, 2005 interrogation. Specifically, Myers notes that counsel did not object to Detective Arvin's testimony that Myers's demeanor during the interview was "non-chalant" and "cavalier" and that his answers appeared to be rehearsed. Trial Transcript at 2207. Additionally, on cross-examination by trial counsel, Detective Arvin asserted that Myers never "adamantly" or "expressly" denied guilt. Id. at 2211-12. In response to a jury question, Detective Arvin again testified that Myers's demeanor was nonchalant and cavalier. Additionally, Detective Lang testified that he did not expect Myers to confess to the murder based on his "prior intelligence" and because "murder is one of the least things someone is going to confess to." Id. at 2380-81. According to Myers, these statements constituted inadmissible opinion testimony.
The sum total of Myers's argument that this testimony was inadmissible is contained in the following conclusory statement in his appellant's brief: "The opinion evidence offered by [Detective] Arvin was objectionable, irrelevant and prejudicial. Ind. Evidence Rule 701; Hensley v. State, 448 N.E.2d 665, 667 (Ind.1983) (lay witnesses may not give opinions where jury is well qualified to form an opinion)." Appellant's Brief at 28-29. Assuming arguendo that the testimony was objectionable, Myers has not established prejudice. With respect to Detective Arvin's testimony that Myers never adamantly or expressly denied guilt, trial counsel went on to elicit testimony clarifying that Myers had, in fact, denied involvement in Behrman's disappearance and murder "numerous" times. Trial Transcript at 2211. With respect to the characterizations of Myers's responses as rehearsed and his demeanor as nonchalant and cavalier, the jury heard the audio recording of the redacted interview and received a written transcript thereof, and was therefore able to draw its own conclusions as to whether Myers's responses and tone were inappropriately casual. Myers has made no attempt to explain how Detective Lang's testimony that he did not expect Myers to
Finally, Myers takes issue with trial counsel's failure to challenge the State's characterization of the May 2, 2005 interrogation in its opening statement and closing argument. Specifically, Myers takes issue with the prosecutor's assertion in opening statements that Myers's demeanor was nonchalant — but, as we explained above, the jury heard Myers's interview and was able to draw its own conclusions in this regard. Myers also notes that the State used a Powerpoint slide presentation in its closing argument, and several of the slides included claims that Myers never denied guilt. The presentation consisted of over sixty slides, five of which bore the subheading "When pressed Defendant never denies guilt", followed by excerpts from the transcript of Myers's interrogation. PCR Exhibit 132. We note, however, that the slide presentation was not admitted as an exhibit at trial; instead, it was used by the State solely as a visual aid during closing arguments. Moreover, our review of the trial transcript reveals that the State did not verbally assert in its closing argument that Myers never denied guilt. The defense, on the other hand, emphasized in its closing argument that Myers repeatedly denied guilt during his police interrogation. Most importantly, the jury was provided a transcript and heard an audio tape of the interrogation, during which Myers repeatedly denied any involvement in Behrman's disappearance and murder. Under these facts and circumstances, we cannot conclude that Myers has established that he suffered prejudice as a result of trial counsel's failure to object to the use of the slides.
Next, Myers argues that trial counsel Patrick Baker was ineffective for telling the jury in opening statements that the defense would present certain evidence, and then failing to do so. Specifically, during opening statements, Patrick Baker stated that during a search for Behrman shortly after her disappearance, a bloodhound alerted to the residence of Brian Hollars, who trial counsel had identified as an alternative suspect, but that the dog was called off. Counsel also told the jury that there was evidence that Hollars and Behrman were seen arguing days before she disappeared. Trial counsel did not present evidence to support these claims.
The parties acknowledge that Patrick Baker was professionally disciplined for, among other things, stating that a dog had alerted at Hollars's home. See In re Baker, 955 N.E.2d 729 (Ind.2011). Our Supreme Court found that "[t]hese statements were false and Respondent should have known that no evidence would be admitted at trial to support them." Id. at 729. The court noted, however, that there was no allegation in the disciplinary proceedings that counsel had provided substandard services to Myers or that Myers or the State were prejudiced by the misrepresentation in his opening statement. We will presume, however, that an attorney who tells the jury that he will present evidence that he either knows or should know will not be presented has acted unreasonably for the purposes of the Strickland analysis. Thus, at least with respect to trial counsel's statement that a search dog alerted to Hollars's residence, we accept Myers's argument that trial counsel's performance was deficient. We are left to consider whether the statements prejudiced Myers within the meaning of Strickland.
In United States ex rel. Hampton v. Leibach, 347 F.3d 219, the Seventh Circuit found that Hampton's trial counsel was ineffective for failing to investigate exculpatory eyewitnesses to the crime. The court also considered Hampton's argument that his trial counsel was ineffective for failing to fulfill two promises made during opening statement. First, Hampton's trial counsel stated that Hampton would testify that he was not involved in the gang-related attack for which he was on trial, and second, that the evidence would show that Hampton was not a member of or involved with any gang.
The court explained that unforeseeable developments at trial may justify reversals of this nature, but that "when the failure to present the promised testimony cannot be chalked up to unforeseeable events, the attorney's broken promise may be unreasonable, for `little is more damaging than to fail to produce important evidence that had been promised in an opening.'" Id. at 257 (quoting Anderson v. Butler, 858 F.2d 16, 17 (1st Cir.1988)). The court concluded that to the extent trial counsel had legitimate reasons to conclude that Hampton should not testify, those reasons should have been obvious from the outset of the case. In reaching its conclusion that counsel's performance was unreasonable, the court emphasized the fact that trial counsel had explicitly promised the jury that Hampton himself would testify, reasoning that "Hampton's unexplained failure to take the witness stand may well have conveyed to the jury the impression that in fact there was no alternate version of the events that took place, and that the inculpatory testimony of the prosecution's witnesses was essentially correct." Id. at 258.
The court also found trial counsel's failure to present testimony that Hampton was not involved with a gang unreasonable, noting that such evidence would bear on the likelihood that he had participated in a crime with "unmistakable gang overtones." Id. at 259. Testimony of this nature was readily available to counsel; he simply failed to pursue it. The court concluded that counsel's failure to present such evidence "could only have undercut the credibility of the defense with the jury." Id. With respect to the prejudice element of the Strickland standard, however, the court concluded that trial counsel's "breach of the promises he made in the opening statement was not so prejudicial that it would support relief in and of itself[.]" Id. at 260. Rather, the breach "serve[d] to underscore the more important failure to investigate exculpatory occurrence witnesses." Id.
In Barrow v. Uchtman, 398 F.3d 597, the Seventh Circuit again encountered a claim that counsel was ineffective for failing to deliver on promises made during opening statements. In Barrow, trial counsel in opening statement informed the jury that "we will tell you about" the crime and the defendant's denial of involvement. Id. at 606 n. 7. During the trial, however, Barrow's counsel presented no evidence
Like the court in Barrow, we also conclude that Myers was not prejudiced by trial counsel's unfulfilled promises. First, we note that trial counsel made no promise that Myers himself would testify. Patrick Baker's representations that evidence would be presented that a dog had followed Behrman's scent to Hollars's residence and that Hollars and Behrman had been seen arguing shortly before her disappearance are more akin to the promises of trial counsel in Barrow to present exculpatory evidence.
Moreover, although trial counsel failed to deliver on these specific promises, other evidence casting suspicion on Hollars was presented to the jury. Evidence was presented establishing that Hollars had hired Behrman to work at Indiana University's Student Recreational Sports Center (SRSC) and that Hollars and Behrman shared an interest in cycling. In fact, Hollars had given Behrman his telephone number because he was trying to sell a bicycle and believed someone in Behrman's cycling club might be interested. Becky Shoemake, who was Behrman's cousin, roommate, and closest friend on campus, testified that Behrman had confided in her that an older man had asked her out and that Behrman was concerned because the man was old enough to drink, but Behrman was not. Shoemake did not know the man's identity or if Behrman accepted the date. Detective Lang testified that Behrman's mother had told him that Behrman was probably sexually active during her second semester. Trial counsel admitted into evidence condoms, a pregnancy test, a package of emergency contraceptive pills, and several books on pregnancy found in Behrman's room. Behrman's mother told Detective Crussen that Hollars had called the Behrman residence three or four times on June 1, 2000, which she found strange. Evidence was also presented that Hollars was married and that he owned a twelve-gauge shotgun and loaded his own shotgun shells using number eight shot, the same size used in Behrman's murder. Importantly, the jury was presented with evidence that a bloodhound tracked Behrman's scent near Hollars's residence. Hollars testified that he was questioned by police on the day of Behrman's disappearance and again by Detective Arvin in 2003, and he believed that he was under suspicion.
From the jurors' questions, it is clear that the jury considered the possibility of Hollars's involvement in Behrman's murder. A juror asked Behrman's mother questions about when Behrman first met Hollars. Additionally, a juror asked Wes
The jurors also took note of the possibility that Behrman was pregnant. A juror asked Behrman's mother if Behrman had appeared to be sick, nauseated, fatigued, or lightheaded, and Behrman's mother recalled that Behrman had felt poorly one morning in May. A juror also asked Behrman's mother if she believed Behrman would have confided in her if she had been pregnant. The jurors did not, however, question the canine handler who testified concerning the bloodhound search conducted a few days after Behrman's disappearance about trial counsel's claim that a dog had alerted at Hollars's residence but been pulled off. We therefore conclude that counsel has not established prejudice stemming from trial counsel's failure to fulfill his promise to present evidence that the bloodhound alerted to Hollars's residence and that Hollars was seen arguing with Behrman shortly before her disappearance.
Myers also argues that Patrick Baker was ineffective for failing to deliver on his claim in opening statement that Carl Salzman, the Monroe County Prosecutor at the time of Behrman's disappearance, would testify that Myers was never a suspect and that Owings, Sowders-Evans, and Clouse were his primary suspects. In support of this argument, Myers directs our attention to Salzman's deposition testimony, taken just days before trial, in which Myers claims Salzman "said exactly the opposite[.]" Appellant's Brief at 31.
Myers overstates Salzman's deposition testimony. Salzman testified in his deposition that his office investigated Behrman's disappearance until her remains were discovered in Morgan County, at which time the investigation was turned over to Morgan County officials. Salzman testified that during the Monroe County investigation, he never filed charges against anyone in Behrman's disappearance. Salzman was presented with a probable cause affidavit for Wendy Owings, and he testified that the plan was to use the charge to get to Sowders-Evans and Clouse. Salzman declined to file charges against Owings because he did not believe the evidence was sufficient. Salzman was never presented with a probable cause affidavit for Myers.
Salzman testified further that after Morgan County took over the investigation, he continued to receive tips from members of the community and jail inmates, which he would pass on to Detective Lang. One such tip came from Betty Swaffard, Myers's grandmother, who told Salzman that Myers had been behaving strangely at the time of Behrman's disappearance. Salzman found Swaffard to be credible and her story to be compelling, so he passed it on to Detective Lang and urged him to investigate further. Thus, from Salzman's testimony, it is apparent that Myers was not presented to Salzman as a suspect during Salzman's official investigation as the Monroe County Prosecutor. While it appears that Salzman eventually came to personally suspect Myers based on Swaffard's testimony, this occurred well after his official involvement in the case ended. During the Monroe County investigation, the only person Salzman considered charging was Wendy Owings. Thus, while Patrick Baker's assertion that
Nevertheless, because Salzman did not testify at trial, Patrick Baker's promise concerning the substance of his testimony necessarily went unfulfilled. We note, however, that at the PCR hearing, Myers elicited no testimony from trial counsel concerning the failure to call Salzman as a witness. Because Myers has made no attempt to discount the possibility that trial counsel made a strategic decision not to call Salzman to testify, he has not satisfied his burden of establishing deficient performance on this issue. See United States ex rel. Hampton v. Leibach, 347 F.3d 219 (explaining that unexpected developments at trial may justify an attorney's decision not to present evidence promised in opening statements); Specht v. State, 838 N.E.2d 1081, 1087 (Ind.Ct. App.2005) (explaining that "an action or omission that is within the range of reasonable attorney behavior can only support a claim of ineffective assistance if that presumption is overcome by specific evidence as to the performance of the particular lawyer"), trans. denied. Nor has he established sufficient prejudice to justify relief on this basis. The jury was presented with ample evidence that the initial investigation focused on Owings, Sowders-Evans, and Clouse, and that Myers was not developed as the primary suspect until much later. Under these facts and circumstances, we cannot conclude that trial counsel's failure to elicit testimony from Salzman on this issue had an appreciable impact on the jury.
Next, Myers argues that trial counsel were ineffective for failing to adequately undermine the State's theory that Behrman had ridden her bicycle north on North Maple Grove Road, i.e., in the direction of Myers's residence, on the date she disappeared. According to Myers, it was crucial for the defense to establish that Behrman took a route south of Bloomington that morning because if she did so, phone records placing Myers at his residence that morning would have exonerated him.
Myers's arguments on this issue presume that the only reasonable strategy trial counsel could have pursued was one that depended heavily on establishing that Behrman rode south rather than north on the date of her disappearance. But trial counsel were not limited to presenting a single theory of defense. Indeed, in a case such as this, based solely on circumstantial evidence, the most advantageous approach may be to establish reasonable doubt by presenting multiple possible alternative theories of the crime that point away from the accused's guilt. As the U.S. Supreme Court has explained, "[t]o support a defense argument that the prosecution has not proved its case it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates." Harrington v. Richter, 562 U.S. 86, 109, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
At the PCR hearing, when asked what he wanted the jury to believe concerning Behrman's bicycle route, Patrick Baker initially stated that he "didn't want her going north." PCR Transcript at 598. He went on to clarify, however, that he had "two theories, a southern route and a northern route". Id. Specifically, he testified as follows:
We cannot conclude that trial counsel's decision to pursue a defense theory that allowed for the possibility that Behrman had ridden north was unreasonable. As an initial matter, we note that trial counsel presented evidence supporting the theory that Behrman had ridden south. Trial counsel elicited testimony that Maral Papakhian, a high school classmate of Behrman's, had reported seeing Behrman riding her bike on Harrell Road, i.e., the southern route, on the morning of her disappearance. The jury was also presented with evidence of Owings's confession, in which she stated that she and Sowders-Evans had been passengers in Clouse's vehicle when he struck Behrman and abducted her on Harrell Road. Additionally, in both opening statements and closing arguments, trial counsel argued that the evidence presented supported a conclusion that Behrman had ridden south.
We also note, however, that trial counsel's Hollars theory was premised in part on the fact that a bloodhound had scented Behrman on the northern route near Hollars's residence. Thus, presenting a theory of defense that depended on proving to a certainty that Behrman had ridden south would have undermined this alternative theory. Moreover, there was other evidence that Behrman had ridden north. Robert England testified that he saw a cyclist matching Behrman's description riding north on Maple Grove Road either at 10:00 a.m. on the day Behrman disappeared or at 9:00 a.m. the next day. Moreover, Behrman's bike was discovered on the north route, less than one mile from Myers's residence. Although it has been suggested that Behrman could have taken the south route, been abducted and subdued there, and her bike dumped on the north route, the timeline for such a scenario is tight. Behrman logged off of her computer at 9:32 a.m. and her bike was spotted near Myers's residence "before noon." Trial Transcript at 1226. Additionally, evidence from the bloodhound tracking search was consistent with Behrman having ridden the bike to its final location as opposed to being driven there in a vehicle. Thus, although it is not impossible for the bike to have been dumped, we cannot conclude that it was unreasonable for trial counsel to decline to pursue a theory of defense that was wholly dependent on the jury reaching such a conclusion. While it might have been helpful to the defense to conclusively eliminate the possibility that Behrman had ridden north that morning, the evidence simply did not allow for such certainty.
Moreover, none of the evidence Myers argues should have been used to impeach the theory that Behrman rode north was particularly strong. For example, Myers argues that trial counsel should have established that shortly after Behrman's disappearance, police investigated routes south and east of Bloomington. Considering the breadth of the investigation in this case and the fact that investigators were simultaneously investigating possible routes north of Bloomington, such evidence was unlikely to impress the jury. Myers also suggests that evidence should have been presented to the effect that investigators and Behrman's family believed "[f]or years" that Behrman had ridden south. Appellant's Brief at 33. But the jury was well aware that investigators primarily pursued Owings's confession, which placed Behrman on the south route, until Behrman's remains were discovered.
Myers also argues that trial counsel should have cross-examined Behrman's
Myers also argues that trial counsel were ineffective for failing to object to hearsay testimony discrediting Papakhian's sighting of Behrman on Harrell Road on the morning of her disappearance. Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. Boatner v. State, 934 N.E.2d 184 (Ind.Ct.App.2010). As a general rule, hearsay is inadmissible unless the statement falls within one of the established hearsay exceptions. Yamobi v. State, 672 N.E.2d 1344 (Ind.1996).
Detective Arvin testified that Papakhian told police she believed she saw Behrman on the 4700 block of Harrell Road on the morning of Wednesday, May 31, but that she could not be one hundred percent certain that she had not seen her on Tuesday. Detective Arvin testified further that when he interviewed Papakhian, she recalled having an argument with her boyfriend at a small party the night before the sighting, and she named several other people who had attended the party. Detective Arvin testified that he interviewed five people as a result of his interview with Papakhian, and that he ultimately reported to Detective Lang "that the timeline that [Papakhian] had presented did not fit." Trial Transcript at 2203. He testified further that based on his investigation, he believed that it was more likely that Papakhian had seen Behrman on Tuesday, the day before her disappearance. Detective Arvin explained that Papakhian told him that she regularly left her house forty-five minutes before her 10:20 a.m. class (i.e., at 9:35 a.m.) and Detective Arvin determined that it would take her only three minutes to drive to the 4700 block of Harrell Road. Because Behrman had logged off of her computer at 9:32 a.m., and it would take a minimum of fifteen minutes for her to bike from the Behrman residence to Harrell Road (not including additional time to change clothes,
Myers argues that Detective Arvin testified to statements made to him by the other partygoers Papakhian identified, and that a hearsay objection to this testimony would have been sustained.
Myers also argues that his trial counsel were ineffective for failing to object to the admission of evidence of a bloodhound tracking search, or alternatively for failing to impeach the reliability of such evidence. At trial, Porter County Sheriff's Deputy and canine handler Charles Douthett testified concerning a search he performed with his bloodhound, Sam. Deputy Douthett testified that he had been working with Sam for over ten years, and that he and Sam had attended numerous seminars and trainings and worked homicide investigations in six states. Deputy Douthett testified further that he and Sam had conducted numerous real-world tracking searches, including some cases involving tracking bicyclists. Deputy Douthett went on to describe the process used to present a bloodhound with a scent and to track that scent.
Deputy Douthett testified further that the FBI contacted him and asked him to come to Bloomington to conduct a tracking search in the Behrman case. An exhaustive description of the tracking search is not necessary here. It suffices for our purposes to note that Deputy Douthett and Sam were taken to a spot on North Maple Grove Road roughly one-half mile southwest of where Behrman's bike had been discovered. Sam tracked Behrman's scent to the spot the bike had been found and continued tracking the scent northward briefly before losing the scent and doubling back to the starting point of the search. At that point, Deputy Douthett and Sam got into a vehicle and were driven southward along the path Sam had been following. They stopped and got out of the vehicle at an intersection a few hundred yards away from Highway 37. Hollars's residence is very close to this intersection. Sam was able to pick the scent back up at that point and she followed it across Highway 37 before turning south on Kinser Pike.
We need not address whether the bloodhound tracking evidence in this case was admissible or subject to impeachment. "[A]n objection to inadmissible evidence may be waived as part of reasonable trial strategy, which will not be second-guessed by this court." Nordstrom v. State, 627 N.E.2d 1380, 1385 (Ind. Ct.App.1994), trans. denied. Trial counsel may also choose to forego opportunities to impeach evidence when doing so serves a reasonable strategic purpose. See Kubsch v. State, 934 N.E.2d 1138 (concluding that counsel's decision not to impeach a witness was a matter of trial strategy and did not amount to ineffective assistance).
At the PCR hearing, Patrick Baker testified that he could not recall whether he considered objecting to the bloodhound tracking evidence. Likewise, he could not recall whether he considered consulting with an expert on bloodhounds or researched the admissibility of such evidence, although he believed he or someone in his office had probably done some research on the issue. He noted on cross-examination that the bloodhound evidence put Behrman within a reasonable proximity of Hollars's house around the time of her disappearance.
It is Myers's burden to overcome the presumption that there were strategic reasons for the decisions trial counsel made. If Myers cannot satisfy that burden, he cannot establish deficient performance. Patrick Baker's inability to recall at the time of the PCR hearing whether he researched bloodhound evidence or considered objecting to its introduction at trial over six years earlier is insufficient to overcome the presumption in this case. This is so because we judge counsel's performance "by the standard of objective reasonableness, not his subjective state of mind." Woodson v. State, 961 N.E.2d 1035, 1041 (Ind.Ct.App.2012) (citing Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624), trans. denied. "Although courts may not indulge `post hoc rationalization' for counsel's decisionmaking that contradicts the available evidence of counsel's actions, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions." Harrington v. Richter, 562 U.S. at 109, 131 S.Ct. 770 (internal citation omitted).
Judging trial counsel's performance by an objective standard of reasonableness,
Next, Myers argues that his trial counsel were ineffective for failing to impeach Betty Swaffard's testimony. Swaffard, Myers's maternal grandmother, testified to certain statements Myers made to her following Behrman's disappearance. Specifically, Swaffard testified that on June 27, 2000, the date Detective Crussen interviewed Myers's parents, Myers called Swaffard and asked to borrow money. Swaffard told Myers that he would have to come to her house to pick up the money, and he said he could not come because there were road blocks up on Maple Grove Road, and he did not want to go out because he was a suspect in Behrman's disappearance. Swaffard testified further that in November 2004, Myers called her and asked her to look after his daughter because he needed some time alone to think. Swaffard asked what was on his mind, and Myers said, "Grandma, if you just knew the things that I've got on my mind.... [I]f the authorities knew it, I'd be in prison for the rest of my life." Trial Transcript at 1833. Myers stated further that his father had known it and "took it to the grave with him." Id. Later that evening, when Myers dropped his daughter off at Swaffard's house, he had tears in his eyes and said, "Grandma, I wish I wasn't a bad person. I wish I hadn't done these bad things." Id. at 1833-34. On cross-examination, trial counsel asked Swaffard only two questions, both of which were apparently intended to establish that Swaffard had developed an unusually close relationship with Detective Lang. First, counsel asked Swaffard whether she knew Detective Lang's telephone number, and she responded affirmatively. Second, counsel asked what Detective Lang's phone number was, and Swaffard began to answer but was interrupted by an objection from the State. The trial court sustained the objection, and trial counsel declined to cross-examine Swaffard further.
On appeal, Myers argues that trial counsel were ineffective for failing to use recordings of telephone conversations between Myers and Swaffard to impeach Swaffard's testimony at trial. We note that in May 2005, with Swaffard's permission, Detective Lang began recording Swaffard's phone calls with Myers. Some of these recordings were of telephone calls Myers made to Swaffard from jail, in which Myers told Swaffard that he had been interviewed concerning Behrman's death and denied any involvement or knowledge thereof. At the PCR hearing, Patrick Baker testified that he had heard the recorded phone calls, but his strategy with respect to Swaffard was to get her off the witness stand as quickly as possible. He testified that Swaffard gave very damaging evidence, that her demeanor and presentation were credible, and that it was extremely challenging to explain to the jury why a grandmother would falsely implicate her grandson in a murder.
In any event, Myers has not directed our attention to any particularly persuasive impeachment evidence contained within the telephone recordings. Although Myers denied any involvement in or knowledge of what happened to Behrman in the phone calls he made to Swaffard from the jail, he did so after being made aware that he was a suspect in the case. Additionally, he acknowledged during the conversations that he knew that telephone calls made from the jail are recorded. In light of these facts, Myers's denials of involvement were unlikely to sway the jury, and they do nothing to explain why Swaffard would falsely implicate Myers. Moreover, in order to impeach Swaffard with the recordings, trial counsel would have had to make the jury aware that Myers's own grandmother had voluntarily agreed to allow Detective Lang to record her conversations with Myers. The damaging effect of such evidence would likely outweigh its minimal impeachment value.
Myers also argues that counsel was ineffective for failing to object to what he calls "religious vouching" for Swaffard's credibility. Appellant's Brief at 43. Specifically, Swaffard was allowed to testify, albeit briefly and without great detail, concerning her religious involvement, including her affiliation with a specific church, her studies at a Bible college, and religious writings she has authored. According, to Myers, this testimony "served no purpose other than to portray [Swaffard] as a God-fearing woman who wouldn't lie." Id. at 43. Myers argues that the error was compounded when the State made reference to Swaffard's faith in its closing argument, stating that she came forward after "great prayer and ... thought" and that "by the grace of God she came forward and told you the truth[,]" Trial Transcript at 1247, 2827.
At trial, Myers's counsel objected to the State's line of questioning regarding Swaffard's religious involvement on the basis of relevance. The trial court overruled the objection and explained that it would allow "some introductory questions just so the jury knows who the witness is." Id. at 1813. On appeal, Myers argues that trial counsel's objection was insufficient because "he did not provide a specific rule." Appellant's Brief at 43. We note, however, that Myers has also failed to cite any specific rule of evidence in his appellant's brief in support of this assertion that Swaffard's testimony amounted to impermissible "religious vouching." Instead, he argues that "[v]ouching testimony invades the province of the jury", and he cites two cases, both of which address issues concerning adult witnesses vouching for the truthfulness of victims in child molesting cases. Id. The State, however, has directed our attention to Indiana Evidence Rule 610, which provides that "[e]vidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility."
The testimony Myers argues amounted to impermissible religious
We cannot conclude that Swaffard's testimony concerning her religious involvement constitutes vouching, religious or otherwise. Although the relevance of Swaffard's religious involvement is certainly questionable (hence trial counsel's objection on that basis), her testimony contained no express or implied assertion that she was more or less likely to tell the truth due to her religious beliefs. Thus, Myers has not established a reasonable probability that an objection on this basis would have been sustained. See Passwater v. State, 989 N.E.2d 766 (Ind.2013) (explaining that to prevail on a claim of ineffectiveness based on failure to object, the defendant must establish a reasonable probability that the objection would have been sustained). Moreover, Myers has not established that he was prejudiced by Swaffard's testimony in this regard. Swaffard's testimony concerning her involvement in church and religious activities was short and not greatly detailed. More importantly, Swaffard testified that Myers was her grandson and that she loved him and had been close with him since he was a small child. In light of the evidence concerning Swaffard's relationship with Myers and the absence of any motive to lie, we are unconvinced that testimony concerning her religious involvement had a significant impact on the jury's assessment of her credibility.
To the extent Myers argues that the prosecuting attorney's remarks in closing argument crossed the line into impermissible religious vouching, we note that the State's references to Swaffard's religion were brief and vague at best. The State's use of the common phrase "by the grace of God" conveyed nothing about Swaffard's religious beliefs, nor did its statement that Swaffard was "the last of a dying breed. A generation of people where truth mattered more than anything else, where telling the truth was an oath that was taken seriously." Trial Transcript at 2827, 2754-55. If anything, these statements suggested that Swaffard was more likely to tell the truth because of her age, not because her religious convictions compelled her to do so.
The State's remark that Swaffard came forward "with great prayer" is arguably a more direct reference to her religion, but when viewed in context, it is apparent that the statement did not imply that Swaffard was credible because of her religious beliefs. Id. at 2747. The statement was made as part of the following argument:
Id. Thus, it is apparent that the State was arguing that it was very difficult for Swaffard to come forward due to the impact her cooperation with the investigation would have on her familial relationships, but that her conscience nevertheless compelled her to do so. In other words, the State argued that Swaffard was credible because she came forward with reservations and at great personal expense. The brief reference to prayer did nothing to imply that Swaffard was more credible because of her religious beliefs.
Moreover, Myers did not question trial counsel at the PCR hearing with respect to his failure to object to these statements. Our Supreme Court has held that, because counsel is presumed to be competent, "an action or omission that is within the range of reasonable attorney behavior can only support a claim of ineffective assistance if that presumption is overcome by specific evidence as to the performance of the particular lawyer." Morgan v. State, 755 N.E.2d 1070, 1074 (Ind.2001). Under the circumstances presented here, trial counsel could have concluded that objecting to the State's vague, passing references to Swaffard's religious convictions would only draw more attention to them, and Myers has presented no evidence to the contrary. See Smith v. State, 822 N.E.2d 193 (Ind.Ct.App.2005) (noting that it is reasonable strategy for counsel not to object to certain evidence to avoid drawing unfavorable attention to it). In any event, we are unconvinced that the complained-of statements had an impact on the jury's verdict. For these reasons, Myers has established neither deficient performance nor prejudice stemming from counsel's failure to object to so-called religious vouching.
Myers next argues that trial counsel were ineffective for failing to adequately impeach Carly Goodman's testimony. Goodman testified that one night in March 2000, Myers, her then-boyfriend, took her for a long car ride through Gosport to a wooded area, where he parked in a "clearance" surrounded by a wooded area. Trial Transcript at 1899. Goodman testified that after Myers stopped the car, the couple argued and that she was afraid and wanted to go home. Goodman testified further that in February of 2006, she went for a drive with Detective Lang to identify places that Myers had taken her during their relationship. She recognized one place as the wooded area where she and Myers had argued in March 2000. This was the same area where Behrman's remains were discovered in 2003. Myers's trial counsel conducted a relatively short cross-examination, in which he asked a number of questions designed to create doubt as to the whether the site was sufficiently distinctive-looking for Goodman to reliably differentiate it from other nearby wooded areas. On appeal, Myers argues that trial counsel should have impeached Goodman with her prior, allegedly inconsistent statements about the site.
At the PCR hearing, Patrick Baker testified that his strategy with respect to Goodman's cross-examination was similar to his strategy with Swaffard-he sought to get Goodman off the witness stand as quickly as possible. He testified further that Goodman "had a lot of information, 404(b) evidence, that regarded domestic battery situations with [Myers]. Regarded her being held against her will in a trailer, I think, for three or four days without any clothes. I think protective
Myers dismisses trial counsel's explanation of his strategy as unreasonable. He asserts that counsel could have cross-examined Goodman concerning her prior statements made to Detective Lang at the time she identified the site without eliciting or opening the door to prejudicial and inadmissible testimony. Further, Myers argues that fearful witnesses are "a reality of criminal defense for which counsel should be prepared."
Moreover, Myers has again failed to establish the requisite prejudice. Much of the impeachment evidence Myers argues should have been used during Goodman's cross-examination was explored through Detective Lang's testimony. For example, Myers argues that trial counsel should have impeached Goodman with Detective Lang's testimony during the grand jury proceedings that Goodman recognized the area due to a humming sound the tires made as they drove across a metal bridge. The bridge, however, was not installed until 2001, well after Goodman's March 2000 car ride with Myers.
Contrary to Myers's assertion on appeal, Detective Lang's grand jury testimony did not establish that Goodman recognized the area due to the sound of the tires on the bridge. Although Detective Lang mentioned the humming sound the tires made, he did not state that the sound is what triggered Goodman's memory. Instead, Detective Lang described the bridge and the humming sound, and said it was at that point that Goodman stopped him midsentence and said that that the area looked more familiar to her than any of the other places they had been. Detective Lang later clarified that Goodman "did not indicate on the bridge. That's just where she interrupted my sentence and said, this place looks more familiar. She didn't say the bridge was more familiar, I remember that sound. She just said this place looks more familiar than any place we've been up to that point." Grand Jury Transcript at 6104. Indeed, in her own grand jury testimony, Goodman specifically stated that it was not the bridge that caused the area to be recognizable to her. Instead, she stated that she recognized a nearby creek, woods, steep hills with rocks on them, and an area she described as a "cutoff", which was not a road but provided enough clearance to allow a person to drive a short distance into the woods. Id. at 4080.
Myers also makes much of the fact that Goodman told Detective Lang that the wooded area where Behrman's remains were found was similar to, or looked like, the place Myers took her in March 2000 instead of positively identifying the area. At trial, however, when shown a picture of the area in which Behrman's remains were discovered, she responded "[t]hat's where he took me." Trial Transcript at 1900. Our review of transcript reveals that trial counsel did a more than adequate job of calling into question the reliability of Goodman's identification of the area. On cross-examination, trial counsel elicited the following testimony:
Id. at 1906. Moreover, Detective Lang testified that Goodman told him that the area "look[ed] more familiar to [her] that anyplace we've been." Id. at 2413. Because the jury was presented with testimony that Goodman told Detective Lang that the area looked familiar instead of positively identifying the area, as well as with Goodman's own testimony that the area just "look[ed] familiar", id., counsel did not perform deficiently by failing to use Detective Lang's grand jury testimony to establish those facts.
Myers also argues that his trial counsel were ineffective for failing to object to Goodman's description of Myers's behavior during the March 2000 car trip, which he calls "prejudicial 404(b) testimony". Appellant's Brief at 46. Myers does not, however, cite the applicable language of Indiana Evidence Rule 404(b) or make any attempt to apply it. Accordingly, this argument is waived for lack of cogency. See Davis v. State, 835 N.E.2d 1102, 1113 (Ind.Ct.App.2005) (explaining that "[a] party waives an issue where the party fails to develop a cogent argument or provide adequate
To the extent Myers has made a coherent argument on this point, it essentially boils down to an assertion that, in light of other testimony suggesting that Behrman may have been raped, Goodman's testimony left the jury with the impression that Myers had raped her during the March 2000 car trip. In support of this argument, Myers directs our attention to Goodman's testimony that during the trip, she did not kiss Myers, she wanted to go home, and that she was afraid, as well as her testimony that Myers refused to take her home, and that they both got out of the car and stayed at the location for thirty to forty-five minutes before Myers finally took her home. Myers's argument on this point is unconvincing. Goodman told the jury what happened once they reached the clearing in the woods — she and Myers argued and Myers refused to take her home, which scared her. Nothing about Goodman's testimony implied that she had been raped.
In any event, it is apparent that the testimony was admitted to show that Myers was familiar with the area in which Behrman's remains were discovered and to explain why Goodman was still able to remember the location so vividly several years later, and not to establish that Myers had a propensity to commit murder or any other crime. Thus, the testimony did not violate Evidence Rule 404(b), and Myers points to no danger of unfair prejudice aside from his unpersuasive argument that the testimony left the jury with the impression that Goodman had been raped. See Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct.App.2010) (explaining that "[i]n assessing the admissibility of 404(b) evidence a trial court must (1) determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403"), trans. denied. Thus, Myers has not established a reasonable probability that an objection on the basis of Evidence Rule 404(b) would have been sustained, and he is consequently unable to show that counsel performed deficiently by failing to object on that basis.
Next, Myers argues that trial counsel were ineffective for failing to object to testimony suggesting that Behrman had been raped. Specifically, forensic pathologist Dr. Stephen Radentz testified that the condition in which Behrman's remains were discovered was consistent with a classic rape-homicide scenario. Additionally, Dr. Radentz responded affirmatively to a jury question asking whether he believed Behrman had been raped. During follow-up cross-examination by Myers's trial counsel, Dr. Radentz admitted that there was no physical evidence that a rape had occurred. When questioned further by the State, Dr. Radentz testified that, based on his training and experience, he nevertheless believed that Behrman had been raped because the location and condition of the remains were consistent with a rape-homicide. The State referenced Dr. Radentz's rape testimony in closing arguments.
On direct appeal, Myers argued that Dr. Radentz's references to rape amounted to fundamental error. Another panel of this court concluded that the admission of Dr. Radentz's rape testimony violated Evidence Rule 403 because Myers was not charged with rape and there was no physical evidence to support the rape determination. Myers v. State, 887 N.E.2d 170. The court went on, however, to conclude that the admission of the evidence
Id. at 187.
Myers is correct that this court's conclusion on direct appeal that the admission of Dr. Radentz's rape testimony did not amount to fundamental error does not necessarily preclude a finding that counsel's failure to object thereto amounted to ineffective assistance. See Benefield v. State, 945 N.E.2d 791 (Ind.Ct. App.2011). To establish fundamental error, a defendant must show that the alleged error was so prejudicial as to make a fair trial impossible. Ryan v. State, 9 N.E.3d 663 (Ind.2014). To satisfy the prejudice element of an ineffective assistance of counsel claim, on the other hand, a defendant must establish that there is a reasonable probability that the result of the proceeding would have been different but for counsel's unprofessional errors. Massey v. State, 955 N.E.2d 247 (Ind.Ct. App.2011). Thus, this court has noted "that there is a subtle distinction between the fundamental error and ineffective assistance prejudice standards." Benefield v. State, 945 N.E.2d at 803. Although the fundamental error standard "presents a higher bar", "the two standards may frequently lead to the same result". Id. at 804, 803.
This is one such case. For the same reasons this court on direct appeal concluded no fundamental error occurred, we also conclude that Myers has not established prejudice sufficient to warrant a finding of ineffective assistance of counsel. We agree with the panel's conclusion that Dr. Radentz's rape testimony did not substantially influence the outcome of the trial. Accordingly, Myers has not established a reasonable probability that the outcome of the trial would have been different but for counsel's failure to object.
Next, Myers argues that his trial counsel was ineffective for failing to object to what he calls irrelevant and highly prejudicial gun evidence. Specifically, Myers points to the testimony of Billy Dodd, Myers's neighbor at the time of Behrman's disappearance, that a number of rifles and shotguns were kept in a barn near Myers's trailer. Additionally, Debbie Bell, Myers's aunt, testified that Myers sold her husband a shotgun at Myers's father's funeral in December 2000, several months after Behrman's disappearance. Detective Lang testified that he retrieved that gun from Bell. Although the record reveals that this gun, as well as several others that Myers sold or distributed to relatives, had been stolen from the barn near Myers's trailer, the jury was not made aware of that fact and evidence of Myers's resulting conviction for receiving stolen property was excluded.
Grand Jury Transcript at 5483-84.
The post-conviction court found testimony concerning the guns relevant because they (or at least one of them) could have been taken during a previous, undiscovered entry. We agree. Unlike in Oldham v. State, here there was no conclusive scientific proof that the weapons at issue were not used in the crime. The fact that the owner of the barn believed that he would have noticed if the guns were stolen prior to Behrman's death goes to the weight to be attributed to the evidence, not its admissibility.
Myers has also failed to establish prejudice arising from the admission of the gun evidence in this case. There was other evidence presented at trial to establish that Myers had access to shotguns like the one used to kill Behrman. Samuel Myers, Myers's brother, testified that he owned a twelve-gauge shotgun, which he kept at his parents' house. Samuel testified further that he noticed that his shotgun was missing around August of 2000 and that he was never able to locate the weapon. Myers's other brother, Lucas Myers, also testified that Myers had access to shotguns at their parents' house, and Richard Swinney,
Myers next argues that trial counsel were ineffective for failing to object to the testimony of jailhouse informant John Roell. As we have already noted, "in order to prevail on a claim of ineffective assistance due to the failure to object, the defendant must show a reasonable probability that the objection would have been sustained if made." Passwater v. State, 989 N.E.2d at 773. Myers has not satisfied this burden.
Roell testified at trial that he had been Myers's cellmate in the Monroe County Jail in May 2005. He testified further that Myers told him he was waiting to be questioned by the Indiana State Police concerning Behrman's bicycle. According to Roell, Myers appeared nervous and angry, and at one point stated "if she wouldn't have said anything, none of this probably would have happened." Trial Transcript at 2270-71. Roell understood Myers to be referring to Behrman when he made this statement, and Roell testified further that Myers referred to Behrman as a bitch.
Myers contends that counsel should have objected to Roell's testimony pursuant to Indiana Evidence Rule 403. This rule provides, in pertinent part, that relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of ... unfair prejudice[.]" Ind. Evid. R. 403. "All evidence that is relevant to a criminal prosecution is inherently prejudicial; thus proper inquiry under Evidence Rule 403 boils down to a balance of the probative value of the proffered evidence against the likely unfair prejudicial impact of that evidence." Fuentes v. State, 10 N.E.3d 68, 73 (Ind.Ct. App.2014), trans. denied. "When determining the likely unfair prejudicial impact, courts will look for the dangers that the jury will (1) substantially overestimate the value of the evidence or (2) that the evidence will arouse or inflame the passions or sympathies of the jury." Duvall v. State, 978 N.E.2d 417, 428 (Ind.Ct.App. 2012) (quoting Carter v. State, 766 N.E.2d 377, 382 (Ind.2002)), trans. denied.
The crux of Myers's argument is that the probative value of Roell's testimony was low because he was not a credible witness due to inconsistencies among his initial statement to police, his deposition testimony, and his trial testimony. But it was for the trier of fact, not the trial court, to judge Roell's credibility. Ultimately, Myers's argument in this regard goes to the weight to be afforded to Roell's testimony, not its admissibility. See Embrey v. State, 989 N.E.2d 1260, 1268 (Ind. Ct.App.2013) ("[i]nconsistencies in witness testimony go to the weight and credibility of the testimony, the resolution of which is within the province of the trier of fact" (internal quotation omitted)). Roell's testimony, if credited by the trier of fact, was highly probative of Myers's guilt.
Myers also argues that the admission of Roell's testimony posed a significant
Nothing in Roell's testimony was likely to prompt the jury to convict Myers on an improper basis. Myers has cited no relevant authority supporting the proposition that evidence may be considered unfairly prejudicial because it forces counsel make difficult strategic decisions with respect to its impeachment. We decline to develop this argument on his behalf. Because Myers has not satisfied his burden of establishing that an objection to Roell's testimony on the basis of Evidence Rule 403 would have been sustained, he has consequently failed to establish deficient performance and resulting prejudice.
Next, Myers argues that his trial counsel were ineffective for failing to present all available evidence tending to establish the guilt of Owings, Sowders-Evans, and Clouse, and for failing to investigate and discover additional evidence to that effect. This argument is nothing more than a request to substitute Myers's PCR counsel's strategic judgment, informed by hindsight, for that of Myers's trial counsel, which we will not do.
In 2002, Owings confessed to the police that she, Sowders-Evans, and Clouse had killed Behrman. In the story Owings gave police, she and Sowders-Evans were riding around with Clouse in his pickup truck and using drugs when Clouse struck a girl riding a bike on Harrell Road. Clouse stopped and loaded the injured and incapacitated girl into the back of the truck and wrapped her in plastic secured with bungee cords before placing the bicycle on top of her. Owings went on to state that Clouse then drove them all to Salt Creek, where the three of them took turns stabbing the girl in the chest before Clouse and Sowders-Evans pushed the body into the water. Neither Sowders-Evans nor Clouse ever confessed to the police, and Owings recanted her confession after Behrman's remains were discovered in Morgan County.
The State called Owings as a witness at Myers's trial. Owings testified that when she was questioned by Detective Lang in April 2003, she denied any knowledge of Behrman's disappearance. She testified further that she had previously lied about her involvement because she was facing a potential eighty-six-year sentence for various unrelated felonies, and her attorney had urged her to come forward with anything she knew about the case in an attempt to curry favor with the prosecution. Owings testified that she had named Clouse and Sowders-Evans because "[f]rom the very first time I was questioned, those were the two names that I was supposedly to be with [sic] or around at the time of the said incident. They thought that all three of us were together." Trial Transcript at 2094. She also testified
Additionally, the State introduced into evidence a letter Owings received from her attorney prior to her confession. In the letter, Owings's attorney painted an exceptionally dire picture of Owings's prospects. Specifically, he wrote that "we might be talking about you being locked up until just about everyone you know has died of old age." PCR Exhibit 301. Her attorney went on to write that he had heard that Owings might know something about the Behrman case, and told her "[f]or the sake of your children, your family, and your own life, if there is anything you can tell these people the time is NOW." Id. He added that he had gotten "the distinct impression you might not be punished for anything to do with the Behrman case, and might get considerably better treatment in these other matters, if you can help solve this." Id. He also wrote that Sowders-Evans, who was apparently also incarcerated, was trying to get out of jail, and that if Sowders-Evans talked first, Owings would be "sunk." Id.
Myers argues that trial counsel were ineffective for failing to present certain testimony and witnesses supporting the theory that Owings, Sowders-Evans, and Clouse murdered Behrman. Trial counsel Hugh Baker, however, testified that the defense team made a strategic decision not to pursue Owings's confession as its primary theory of defense. Specifically, he testified as follows:
PCR Transcript at 840. For these reasons, a decision not to pursue the Owings theory would clearly reflect a reasonable strategic judgment. Myers, however, asserts that trial counsel did, in fact, pursue the Owings theory at trial, and it was therefore deficient performance not to present more evidence to support it.
The record reveals that trial counsel pursued the Owings theory to some extent. Hugh Baker elicited testimony from Owings on cross-examination that she had discussed Behrman's disappearance with several acquaintances and made incriminating statements to at least one of them. He also elicited testimony from Owings concerning the substance of her confession to police, and the fact that she had first been interviewed in connection with the Behrman case in June of 2000. Trial counsel also touched on the Owings theory with other witnesses throughout trial. Trial counsel elicited testimony from Dr. Radentz that not all of Behrman's bones were recovered, and that it was possible (though unlikely) for her to have been stabbed without leaving marks on her skeletal remains. Trial counsel also elicited
Essentially, Myers argues that trial counsel was obligated to take an all-or-nothing approach to the Owings theory — either forego it entirely or present all evidence supporting it. We are unpersuaded by this argument. It is noteworthy that it was the State who first informed the jury of Owings and her recanted confession in its opening statement. The State did so in an effort to explain the delay in Myers's development as the primary suspect, and presumably to get ahead of any attempt by the defense to cast suspicion on Owings and her alleged accomplices. Likewise, it was the State who called Owings to testify at trial. Under these circumstances, trial counsel did not act unreasonably by making a strategic decision to attempt to present just enough evidence to keep the possibility of Owings's involvement alive in the minds of the jurors, without making the Owings theory the crux of Myers's defense. Indeed, it appears to us that trial counsel's decision to pursue the Owings theory to only a limited extent was actually quite shrewd because it prevented the jury from being exposed to all of the many conflicting versions of the story Owings, Sowders-Evans, and Clouse allegedly told.
We also conclude that Myers was not prejudiced by trial counsel's decision not to present additional evidence supporting the Owings theory. Myers makes no argument that counsel failed to present
In any event, even if trial counsel had presented a parade of credible witnesses to testify that Owings, Clouse, and/or Sowders-Evans had confessed to hitting Behrman with a car, wrapping her in plastic, stabbing her in the chest, and dumping her body in Salt Creek, the fact remains that the confession simply did not mesh with the physical evidence. Behrman's remains were found in a remote, wooded area, not in Salt Creek. There was no evidence that Behrman had been stabbed or struck by a car, but there was clear evidence that she had been shot in the head with a shotgun at the location where her remains were discovered. Although trial counsel elicited testimony from Agent Dunn that he had received a tip that the body had been moved, evidence was presented that the visibility in Salt Creek was extremely poor, and even the FBI was forced to go to the extreme measure of draining the creek in order to search it. Convincing the jury that Owings,
Finally, Myers claims that the cumulative effect of trial counsel's errors amounted to ineffective assistance entitling him to a new trial. We have reviewed each of Myers's claims of error in detail and concluded that none of them amount to ineffective assistance of counsel. Indeed, most of Myers's claims of ineffective assistance are nothing more than quarrels with trial counsel's reasonable strategic decisions. "Alleged `[t]rial irregularities which standing alone do not amount to error do not gain the stature of reversible error when taken together.'" Kubsch v. State, 934 N.E.2d at 1154 (quoting Reaves v. State, 586 N.E.2d 847, 858 (Ind.1992)) (alteration in original). Accordingly, we are unpersuaded by Myers's cumulative error argument.
Next, Myers argues that the State violated his due process rights by failing to disclose all exculpatory evidence to the defense. In Brady v. Maryland, the United States Supreme Court held that "the 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, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In order to prevail on a Brady claim, the defendant must establish: "(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial." Stephenson v. State, 864 N.E.2d 1022, 1056-57 (Ind. 2007) (quoting Conner v. State, 711 N.E.2d 1238, 1245-46 (Ind.1999)). Under Brady, evidence is considered material if the defendant establishes a reasonable probability that the result of the proceeding would have been different had the State disclosed the evidence. Stephenson v. State, 864 N.E.2d 1022. The State will not be found to have suppressed material information if such information was available to the defendant through the exercise of reasonable diligence. Id.
Myers concedes that he cannot identify even one specific piece of evidence that the State suppressed. Instead, he asserts that in the course of investigating Myers's post-conviction claims, post-conviction counsel received over 8,000 pages of documents directly from the FBI and the Bloomington Police Department, and the State did not document transferring any of these materials to the defense prior to trial in its discovery notices. At the PCR hearing, however, evidence was presented that trial counsel received additional discovery that was not documented by the State. Patrick Baker testified that discovery was "fluid" and that the State was not always meticulous in documenting what materials it had provided. PCR Transcript at 525. Chief Deputy Prosecutor Robert Cline stated that prior to trial, he provided trial counsel with a CD containing 3,000 pages of FBI reports, and possibly other kinds of reports, without documenting the transfer. Additionally, Patrick Baker testified that he reviewed boxes of investigative reports from the FBI, the Indiana State Police, the Bloomington Police Department, and the Indiana
We agree with the post-conviction court's conclusion that based on the evidence presented at the PCR hearing, it is unclear whether trial counsel was provided with or had access to all of the relevant investigative reports. Consequently, Myers has not satisfied his burden of establishing that the State suppressed such evidence. Moreover, even if we assume the State failed to disclose some evidence, without knowing what that evidence was, we cannot begin to determine whether it was favorable to the defense and material to an issue at trial, or merely cumulative of what was disclosed to Myers. Additionally, Myers has made no attempt whatsoever to establish that the allegedly suppressed investigative reports were not available to him through the exercise of reasonable diligence. Essentially, Myers asks us to ignore his evidentiary burden and presume not only that investigative reports were suppressed, but also that somewhere among the allegedly suppressed reports, a nugget of evidence satisfying the requirements of Brady must exist. This we will not do.
Finally, Myers argues that he is entitled to reversal of his conviction because the State committed prosecutorial misconduct at trial. Specifically, he asserts that the State committed prosecutorial misconduct by knowingly presenting false evidence and perjured testimony. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (explaining that "deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with `rudimentary demands of justice'" (quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935))).
Myers has fallen far short of establishing that the complained-of testimony and evidence were false or that the State knew as much. But Myers's claims of prosecutorial misconduct fail for a more fundamental reason. "Post-conviction procedures do not provide a petitioner with an opportunity to present freestanding claims that contend the original trial court committed error." Wrinkles v. State, 749 N.E.2d 1179, 1187 n. 3 (Ind.2001). Rather, "`[i]n post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.'" Bunch v. State, 778 N.E.2d 1285, 1289-90 (Ind.2002) (quoting Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002)). "An available grounds for relief not raised at trial or on direct appeal is not available as a grounds for collateral attack." Canaan v. State, 683 N.E.2d 227, 235 (Ind.1997). Myers has made no attempt to establish that his claims of prosecutorial misconduct were demonstrably unavailable at trial or on direct appeal. His claims of prosecutorial misconduct are freestanding claims of trial error, and as
Judgment affirmed.
VAIDIK, C.J., and ROBB, J., concur.