Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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.
KIRSCH, Judge.
Theron L. Bailey was convicted of Class A felony attempted murder,
The post-conviction court did not err in finding that Bailey's appellate counsel provided effective assistance of counsel. We affirm.
This court's unpublished memorandum decision for Bailey's direct appeal provides us with facts and procedural history. Bailey v. State, 908 N.E.2d 712 (Ind. Ct. App. 2009). Rita Underwood ("Underwood") obtained a no-contact order against Bailey, her ex-boyfriend. Underwood worked at a diner in Marion, Indiana and lived in an apartment above the diner. On the night of March 3, 2007, Underwood and one of her sons, Dustin Cox ("Cox"), were in her apartment when Cox saw Bailey near the apartment. Bailey came to the door of the apartment, but Underwood was able to exit without Bailey noticing and went downstairs to the diner. Bailey searched Underwood's apartment and then searched the diner, where patrons were dining. Soon after, Underwood exited the restaurant, followed by Bailey and the diner's cook, Jesse Henry ("Henry"). As these events were occurring, Underwood's other son, Christopher Sherron ("Sherron"), arrived at the diner.
Bailey and Underwood argued in the parking lot while her two sons and Henry looked on. Bailey pointed a handgun at Henry, and everyone stepped back. Bailey and Underwood struggled; meanwhile, the others urged Bailey to put away the gun, which Bailey later admitted he had no license to carry. Bailey then pointed his handgun at Henry, and everyone stepped back. Underwood walked back into the diner. Bailey followed her, and in front of witnesses, shot Underwood in the back of the head. Before fleeing the scene, Bailey pointed the gun at Cox and Sherron, asking them whether they wanted to die.
A short time later, Bailey entered the Marion V.F.W. Hall and saw Charles Teegarden ("Teegarden"), a former co-worker. Teegarden agreed that, after he finished a game of pool, he would give Bailey a ride. Not satisfied by the delay, Bailey drew his gun, pointed it at Teegarden, and stated that he would shoot Teegarden if he did not immediately help him flee. Teegarden managed to escape from the situation, and Bailey left the hall.
Bailey then approached a pub, outside of which he found a man named James Johnson ("Johnson") talking on his cell phone. Bailey pressed his gun into Johnson's chest and told him that he would shoot him in the head if Johnson did not agree to drive Bailey where he wanted to go. Johnson drove Bailey to a trailer court.
Bailey was later arrested and charged with thirteen counts, including attempted murder, kidnapping, criminal confinement, invasion of privacy, carrying a handgun without a license, two counts of intimidation, and six counts of pointing a firearm. During voir dire at Bailey's jury trial, trial counsel, Don Gallaway ("Gallaway") asked a prospective juror ("Juror 4"), "Can you give [Bailey] the presumption of innocence even knowing the type of crime[s] with which he has been charged," to which Juror 4 said, "No." Trial Tr. at 57. Gallaway noted, "[B]eside[s] burden of proof an[d] reasonable doubt, the fundamental element of this process that we call a jury trial is fairness." Id. Gallaway then impressed on the prospective jurors, "if you can't be fair an[d] impartial then this may not be the case for you." Id.
Gallaway asked the prospective jurors whether any of them had seen Bailey "in a little different light" after they heard "what he'd been accused of doing." Id. Only one juror, Webb, raised his hand and explained that when he heard about the case he "had an opinion immediately." Id. at 58. Webb was dismissed from the jury. Juror 4 was not moved to answer Gallaway's question and was placed on the jury.
Approximately thirty witnesses testified on behalf of the State, at least six of whom had been present when Bailey shot Underwood. Testimony from those six witnesses revealed: Bailey had been banned from the diner and had been asked to leave on the night in question; patrons were in the diner at the time Underwood was shot; Underwood was afraid of Bailey; and Bailey had opened the door to the diner, raised his hand, and fired at Underwood. Bailey was one of only two witnesses to testify in his own defense. He claimed that he was drunk and high on the night in question and that the gun had accidentally fired.
Outside the presence of the jury, the State argued that Bailey's opening statement had opened the door to evidence of prior bad acts. The trial court concluded that it would "allow evidence of prior acts of violence by the Defendant against the alleged victim, Rita Underwood, and Rita Underwood only." Trial App. at 23. Following the trial, Bailey was found guilty of all counts.
Cognizant of double jeopardy concerns, the trial court later vacated four of the thirteen convictions and sentenced Bailey to an aggregate sentence of 108 years in prison. On direct appeal, Bailey raised two issues: (1) whether the trial court committed fundamental error by admitting evidence regarding Bailey's prior convictions; and (2) whether trial counsel was ineffective for not objecting to the admission of the prior convictions. This court affirmed Bailey's convictions, finding that Bailey had failed to establish that the admission of the evidence concerning two previous convictions constituted fundamental error. Additionally, this court concluded that trial counsel was not ineffective for failing to object to the admission of this evidence.
Bailey filed a pro se petition for post-conviction relief in July 2010, but withdrew his petition in July 2012. Again, acting pro se, Bailey filed an amended petition for post-conviction relief on August 22, 2013. In this petition, Bailey claimed that his appellate counsel was ineffective, among other reasons, for failing to include in his ineffective assistance of trial counsel claim — raised on direct appeal — that trial counsel was also ineffective for failing to question Juror 4 regarding his potential bias against Bailey.
At Bailey's request, the post-conviction court admitted Petitioner's Exhibit A — the record of proceedings from trial, including the transcript. PCR Tr. at 6. Bailey was unable to have his appellate counsel, Robert Bratch ("Bratch"), testify at the February 14, 2014 post-conviction hearing because Bratch had died prior to that date. Instead, Bailey called Gallaway to testify. On March 18, 2014, the court issued its findings of fact and conclusions thereon, denying Bailey's petition for post-conviction relief.
The post-conviction court found that Gallaway met Bailey at the county jail to discuss trial strategy and possible defenses. PCR Ruling at 5.
Bailey has the burden of establishing his grounds for post-conviction relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner appealing from the denial of post-conviction relief stands in the position of one appealing from a negative judgment. Soucy v. State, 22 N.E.3d 683, 685 (Ind. Ct. App. 2014). Thus, the decision will be disturbed as being contrary to law only if the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion. Id. Ineffectiveness of counsel claims are evaluated under the standard of Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel, a petitioner must show both deficient performance and resulting prejudice. Brown v. State, 880 N.E.2d 1226, 1230 (Ind. Ct. App. 2008) (citing Strickland, 466 U.S. at 687), trans. denied (emphasis added).
Bailey first contends that his trial counsel was ineffective when, during voir dire, trial counsel did not question Juror 4 regarding his possible prejudice against Bailey and strike the juror from the jury.
A petitioner, however, can claim that appellate counsel was ineffective for failing to properly raise and support deficient performance of trial counsel. Sweeney v. State, 886 N.E.2d 1, 7 (Ind. Ct. App. 2008) (citing Timberlake, 753 N.E.2d at 606), trans. denied. The standard of review for a claim of ineffective assistance of appellate counsel is identical to the standard for trial counsel. Walker v. State, 988 N.E.2d 1181, 1190 (Ind. Ct. App. 2013), trans. denied. The petitioner must establish deficient performance by appellate counsel resulting in prejudice. Id.
Id. at 1186 (citations and internal quotation marks omitted).
Here, Bailey maintains that his appellate counsel was ineffective when he did not raise on direct appeal that trial counsel was not effective because he failed to properly question Juror 4 regarding whether that juror harbored possible prejudice against Bailey, which prejudice allegedly compromised the verdict and resulted in fundamental error.
Bratch died before the post-conviction hearing; therefore, he was unavailable to testify regarding why he raised the issues he did, instead of raising issues concerning Juror 4's potential prejudice. Gallaway testified at the post-conviction hearing; however, he was unable to recall his conversation with Juror 4. Therefore, to evaluate Bratch's representation of Bailey on direct appeal, we look for guidance in Petitioner's Exhibit 1 to the post-conviction hearing, the transcript of Bailey's trial. In particular, we examine the voir dire.
To determine which issues would be most likely to succeed and thus should be raised on direct appeal, Bratch would have had to review the trial transcript, including the voir dire. "`The purpose of voir dire is to determine whether a prospective juror can render a fair and impartial verdict in accordance with the law and the evidence.'" Gregory v. State, 885 N.E.2d 697, 706 (Ind. Ct. App. 2008) (quoting Joyner v. State, 736 N.E.2d 232, 237 (Ind. 2000)), trans. denied. "[S]uch examination of prospective jurors is used to discover whether a prospective juror has any opinion, belief, or bias [that] would affect or control his determination of the issues to be tried, providing a basis to exercise the right of challenge either peremptory or for cause." Id. "[P]roper examination may include questions designed to disclose the jurors' attitudes about the type of offense charged." Id. at 707. Biased jurors may be removed for cause. Whiting v. State, 969 N.E.2d 24, 29 (Ind. 2012). Additionally, "state law provides defendants with a limited number of peremptory challenges, I.C. § 35-37-1-3; Ind. Jury Rule 18, which they may use to excuse jurors for almost any reason." Id. For the crimes committed by Bailey, Gallaway should have had ten peremptory challenges. Ind. Code § 35-37-1-3(b) (2006).
Here, the transcript of the voir dire proceedings revealed the following regarding Juror 4's potential bias. Juror 4 said that he would be open-minded and listen to the evidence on both sides. Trial Tr. at 43. He also said that he understood part of his job as a juror would be to assess the credibility of witnesses, and he stated that he was up to the task. Id. at 44. Juror 4 said that he would watch the demeanor of each witness to determine by their body language whether they were telling the truth. Id.
Gallaway and Juror 4 acknowledged that they knew each other. Gallaway stated, "Nobody here indicated that they knew [Bailey], correct? Can you give him the presumption of innocence even knowing the type of crime with which he's been charged?" Trial Tr. at 57. Without elaboration, Juror 4 simply said "No." Gallaway continued,
Trial Tr. at 57-58.
Juror 4 did not raise his hand in response to Gallaway's question. Potential juror Webb, however, did raise his hand and explained that when he heard about the case he "had an opinion immediately in [his] mind." Id. at 58. When asked, Webb confirmed that he still carried that opinion. Id. Gallaway specifically asked Webb, "Do you think you can be fair? Having read what you've read an[d] know what you known can you be fair an[d] give him a fair trial?" Id. at 59. Webb answered that he was not sure. Id. Gallaway moved to strike Webb for cause. Id. at 60. Thereafter, Webb said he thought he could wait to make up his mind regarding guilt until he had heard all of the evidence. Id. at 61. Gallaway withdrew his motion to strike Webb for cause. While it is not clear whether defense counsel or the State challenged Webb as a juror, he was dismissed from the jury. After Juror 4 confirmed that his familiarity with Gallaway would not in any way affect his ability to be a juror, Juror 4 remained on the jury. Id. at 70, 73.
Appellate counsel's performance is presumed effective. Here, Bailey has not offered strong and convincing evidence to overcome this presumption. The record supported that Gallaway intensively questioned each potential juror, including Juror 4. During voir dire, about twenty-four potential jurors were dismissed from the jury pool. Some were dismissed for cause and others by preemptory challenge. Gallaway, himself, used at least seven preemptory challenges — an amount that the prosecutor characterized as "a lot." Trial Tr. at 119.
Further, even if we were to find that Bratch was ineffective for not raising on direct appeal the ineffectiveness of Gallaway for failing to remove Juror 4 from the jury pool, no prejudice resulted. The evidence against Bailey was overwhelming. Witnesses testified that Underwood had a no-contact order against Bailey, Bailey went to Underwood's apartment to find her, he followed her to the diner, the two struggled while Bailey was in possession of a gun, Bailey followed Underwood back into the diner, and when he was a couple of feet away from her, he pointed the gun at head and fired. Trial Tr. at 147-50, 218-19, 240-41. Witnesses also testified as to the events surrounding the other charged crimes. In his defense, Bailey testified that he did not mean to shoot Underwood, that it was an accident. Bailey admitted that he pointed his handgun at Henry; however, he claimed that it was in self-defense. As to the other crimes, Bailey claimed to have no memory about what happened. Approximately thirty witnesses testified on behalf of the State, at least six of whom had been present when Bailey shot Underwood. The jury believed that the shooting of Underwood was intentional. Additionally, in the absence of any defense except that Bailey could not remember, the jury believed that Bailey had committed each of the remaining charged crimes. Prejudice occurs when a reasonable probability exists that, but for counsel's errors the result of the proceeding would have been different. We find no prejudice caused by the inclusion of Juror 4.
Here, Bailey failed to prove either that appellate counsel was deficient or that such deficiency resulted in prejudice. Finding that Bailey did not receive ineffective assistance of appellate counsel, we affirm the post-conviction court's denial of Bailey's petition.
Affirmed.
Vaidik, C.J., and Bradford, J., concur.