Opinion
21A-PC-1027
05-05-2022
Joseph Henderson, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent
Appellant Pro Se Joseph Henderson Pendleton Correctional Facility Pendleton, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
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.
Appeal from the Marion Superior Court The Honorable Anne Flannelly, Magistrate Trial Court Cause No. 49G04-1801-PC-3148
Appellant Pro Se Joseph Henderson Pendleton Correctional Facility Pendleton, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[¶1] Joseph Henderson was convicted of two counts of murder and two counts of class B felony robbery and petitioned for post-conviction relief (PCR). He now appeals the denial of his PCR petition, claiming that the post-conviction court erred in determining that he had not met his burden to establish that he was denied effective assistance of both trial and appellate counsel. Finding no clear error, we affirm.
Facts and Procedural History
[¶2] The facts underlying Henderson's crimes were summarized on direct appeal as follows:
During the evening of October 14, 1998, Henderson and Mario, who was Henderson's marijuana supplier, went to the home of Jermaine Miller, to whom Henderson had agreed to sell $2, 400 worth of marijuana. Waiting at Miller's home were Miller's girlfriend and three other male individuals, William Clark, Ricky Harris, and Darrell Odom. Henderson informed them that he did not have the marijuana with him and that he wanted to make sure that Miller had the money. They all counted the $2, 400[, ] and Henderson asked if he could take it and go get the marijuana. Miller, Harris, and Odom refused[, ] so Henderson agreed to bring it by later that evening. Henderson later called and said that he had to throw the marijuana out because he had been pulled over by the police.
The following day Henderson went to dinner with his mother. On the way home, he saw Brett Dorsey, Andrea Itce, and Ashley Curtis at the home of Ashley's ex-boyfriend. Henderson's mother dropped him off there. Henderson approached Dorsey and, while
whispering in his ear, asked him if he wanted to make $500. Henderson told Dorsey that he needed a driver.
The four got into Dorsey's car and stopped by Henderson's mother's home, where Henderson had been staying for a couple of weeks. Henderson went inside and put on a hooded sweatshirt. They then went to Dorsey's house where they watched TV. While there, Henderson took out the handgun which he was carrying and cleaned it. To clean it, he put on rubber gloves and wiped down the gun, the clip, and the bullets with a paper towel.
Henderson received a page and called the designated number. Henderson told Dorsey that he had spoken to the people he needed to meet and asked Dorsey to drive him to a local Shell gas station. After arriving at the Shell station, Henderson approached Miller and Odom, who was driving the other car, and told them that they needed to get rid of the other passenger in the car because he wanted to deal on a one-to-one basis. Henderson and Dorsey then returned to Dorsey's apartment while Odom and Miller took the other passenger home. Miller and Odom then paged Henderson[, ] and Henderson and Dorsey left to meet them at a McClure gas station.
At the gas station, Henderson spoke with Miller and Odom[, ] and then they left to go to a different location. Miller and Odom followed Dorsey's car to the back of an industrial complex that Henderson had discussed earlier with Dorsey, Andrea, and Ashley. Both Dorsey and Odom backed their cars up to a building. Henderson exited Dorsey's vehicle and walked around to the passenger side of Odom's car. Miller got out and Henderson climbed into the backseat. Miller then got back into the car[, ] and Henderson asked to see the money so that he could count it. Miller refused to let him count it; rather, he counted it himself. Henderson then exited the vehicle and returned to Dorsey's car. He reached into the backseat and retrieved a black
bag which belonged to Dorsey. He removed the handgun from his waistband and placed it into the bag and returned to Odom's car. Once Henderson was in the backseat, Dorsey saw Odom turn toward Henderson and make some movements. Henderson then pulled out the handgun and shot Odom in the head. Henderson then shot Miller twice in the head. As he exited the car, Henderson took approximately $600 which he stated was lying on the ground outside of the car. Henderson jumped into Dorsey's car[, ] and they left the scene. They first returned to Dorsey's apartment and then took Andrea and Ashley over to Mario's home where Dorsey purchased marijuana for the group to smoke.
Henderson was subsequently charged with six counts, two counts of murder for the killing of Miller and Odom, two counts of felony murder for causing the deaths of Miller and Odom while committing robbery, and two counts for the robbery of Miller and Odom. At his first trial [held on October 25-28, 1999], the jury returned a guilty verdict to the charge of murder of Miller but could not reach a verdict on the other charges and the trial court declared a mistrial on the remaining charges. He received a sentence of 65 years for his conviction, with five years suspended. ….
At the second trial [held on October 21-23, 2002], Henderson was charged with the remaining five counts and was found guilty of each one by the jury. The guilty verdicts for the felony murder of Odom and Miller were then dismissed by the trial court for reasons of double jeopardy. The trial court then sentenced Henderson to sixty years incarceration for the murder of Odom to be served concurrent to the sixty-year executed sentence for
the murder of Miller. Henderson was also ordered to serve concurrent twenty-year sentences for the two robbery convictions. The sentences for the robbery convictions were ordered to be served consecutive to the sentences for both murders.Henderson v. State, 795 N.E.2d 473, 475-77 (Ind.Ct.App. 2003) (footnotes omitted), trans. denied (2004).
Henderson mistakenly states that he was convicted of felony murder; that is, killing another human being while committing robbery. Ind. Code § 35-42-1-1(2) (1998). However, the felony murder counts were dismissed. Henderson was convicted of knowingly killing another human being. Ind. Code § 35-42-1-1(1).
[¶3] Henderson appealed his convictions from the second trial as well as his conviction from the first trial. He argued that the trial court abused its discretion by improperly instructing the jury on self-defense and by denying his request to instruct the jury on theft. This Court affirmed his convictions. Id. at 482.
[¶4] On January 26, 2018, Henderson, pro se, filed a PCR petition alleging ineffective assistance of both trial and appellate counsel. He argued that trial counsel provided ineffective assistance by (1) representing him at the second trial when counsel had a conflict of interest; (2) violating attorney-client confidentiality; (3) failing to impeach the forensic pathologist during the second trial; (4) failing to move for a mistrial at the end of the second trial due to juror misconduct; (5) failing to request an instruction on reckless homicide; (6) failing to object to a juror in the second trial who knew Henderson; and (7) failing to object to prosecutorial misconduct during closing argument. Henderson argued that appellate counsel was ineffective by failing to challenge (1) the sufficiency of the evidence supporting the robbery convictions and (2) the appropriateness of his sentence. At the PCR hearing, the sole witness was Henderson's trial counsel Andrew Maternowski. The post-conviction court issued findings of fact and conclusions of law denying Henderson relief on all claims. This appeal ensued. Additional facts will be provided as necessary.
Discussion and Decision
[¶5] "Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence." Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019) (citing Ind. Post-Conviction Rule 1(1)(b)), cert. denied (2020). "The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal." Id. A defendant who files a petition for post-conviction relief "bears the burden of establishing grounds for relief by a preponderance of the evidence." Ind. Post-Conviction Rule 1(5); Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment:
Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did. We review the post-conviction court's factual findings for clear error, but do not defer to its conclusions of law.Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation marks omitted). We will not reweigh the evidence or judge the credibility of witnesses and will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court's decision. Hinesley v. State, 999 N.E.2d 975, 981 (Ind.Ct.App. 2013), trans. denied (2014).
[¶6] Here, Henderson has chosen to proceed pro se, both below and in this appeal. "It is well settled that pro se litigants are held to the same legal standards as licensed attorneys." Lowrance v. State, 64 N.E.3d 935, 938 (Ind.Ct.App. 2016), trans. denied (2017). This means that they must follow our established rules of procedure and accept the consequences when they fail to do so. Id. This Court will not become an "advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood." Id.
Section 1 - Henderson has failed to carry his burden to show that trial counsel provided ineffective assistance.
[¶7] Henderson maintains that he is entitled to post-conviction relief because he was denied the right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 686 (1984) ("[T]he right to counsel is the right to effective assistance of counsel.") (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To succeed on an ineffective assistance of counsel claim, the defendant must satisfy the two-part test articulated in Strickland. Humphrey, 73 N.E.3d at 682. "To satisfy the first prong, 'the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the 'counsel' guaranteed by the Sixth Amendment.'" Id. (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). When considering a claim of ineffective assistance of counsel, we strongly presume "that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Hinesley, 999 N.E.2d at 982 (citation omitted). We presume that counsel performed effectively, and a defendant must offer strong and convincing evidence to overcome this presumption. Id. Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance. Id.
[¶8] To satisfy the second prong of the Strickland test, the defendant must show prejudice. Humphrey, 73 N.E.3d at 682. To demonstrate prejudice from counsel's deficient performance, a petitioner need only show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Middleton v. State, 72 N.E.3d 891, 891 (Ind. 2017) (emphasis and citation omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 891-92. "Although the performance prong and the prejudice prong are separate inquiries, failure to satisfy either prong will cause the claim to fail." Baer v. State, 942 N.E.2d 80, 91 (Ind. 2011).
Section 1.1 - Henderson has not shown that trial counsel provided ineffective assistance by representing a State's witness in an unrelated matter between Henderson's first and second trials.
[¶9] Harris, who was present with Miller and Odom at Miller's home on October 14, 1998, testified for the State at Henderson's first and second trials. The post-conviction court's unchallenged findings show that after the first trial, but before the second trial, Maternowski represented Harris in a marijuana case completely unrelated to Henderson's case. Appellant's App. Vol. 2 at 19. Maternowski did not initially realize that the Harris in the marijuana case was the same Harris that had testified at Henderson's first trial because Harris's appearance was dramatically different. Harris did not recognize Maternowski either. Id. When Maternowski discovered that the Harris in his marijuana case was the same Harris that had testified at Henderson's first trial, Maternowski informed Henderson, explained that there could be a potential conflict of interest, and discussed the possible ramifications. Id. at 19-20; PCR Tr. Vol. 2 at 6-7. Maternowski asked Henderson whether he had a problem with Maternowski representing him and Harris at the same time, and Henderson said that "he was fine with the situation and wanted Mr. Maternowski to stay on this case." Id.
[¶10] Maternowski filed a written motion bringing the matter to the trial court's attention, and on July 11, 2001, the trial court held a hearing, at which Maternowski explained how the situation arose. Henderson was present and given the opportunity to state his position. Appellant's App. Vol. 2 at 20. The trial court concluded that no conflict of interest existed. At the PCR hearing, Maternowski testified that he never attempted to secure a deal for Harris to testify against Henderson. Id.; PCR Tr. Vol. 2 at 41. Maternowski also testified that he believed that Harris's marijuana case was done by the time Maternowski discovered who he was. Appellant's App. Vol. 2 at 20; PCR Tr. Vol. 2 at 41.
Although Henderson includes the transcript of the hearing in his appendix, it does not appear that it was introduced or admitted during the PCR proceedings.
[¶11] On appeal, Henderson baldly claims that Maternowski's representation of Harris was a conflict of interest, that Maternowski knew it was a conflict of interest, and that Maternowski failed to obtain written consent from Henderson to represent Harris as required by Indiana Rule of Professional Conduct 1.7(b). Henderson further argues that Maternowski was attempting to negotiate a plea agreement for Harris in exchange for his testimony against Henderson. Henderson's argument is flawed in multiple respects. The record shows that when Maternowski discovered Harris's identity, Maternowski realized that there was a potential conflict of interest. "A mere possibility of a conflict of interest is not sufficient to impugn a criminal conviction; a showing that an actual conflict of interest adversely affected counsel's performance is necessary to establish ineffective assistance." Davidson v. State, 558 N.E.2d 1077, 1087 (Ind. 1990).
[¶12] The record shows that Maternowski brought the matter to the attention of the trial court, a hearing was held on the question, and the trial court determined that Maternowski's representation of Harris did not create a conflict of interest. In addition, despite Henderson's repeated allegations that Maternowski was attempting to secure a plea deal for Harris in the marijuana case in exchange for his testimony in Henderson's second trial, Henderson does not direct us to any evidence to support that allegation. Rather, the only evidence in the record on that question is Maternowski's testimony that he was not seeking a plea agreement for Harris. We conclude that Henderson has failed to show that Maternowski's representation of Harris resulted in ineffective assistance.
Section 1.2 - Henderson has not shown that trial counsel provided ineffective assistance by violating attorney-client confidentiality.
[¶13] Henderson next argues that Maternowski violated his obligation to maintain client confidentiality under Indiana Rule of Professional Conduct 1.6 by discussing his case with a client who was a co-defendant with Harris in another case. At the conflict-of-interest hearing, Maternowski revealed that he had spoken to another client about "matters of public record" in Henderson's case, including that Henderson was charged with killing Miller and Odom. PCR Tr. Vol. 2 at 7-8. Henderson asserts, "it is a reasonable inference that counsel's loose lips did not stop with this witness or others concerning this case." Appellant's Br. at 14. We disagree. Henderson cites to no evidence that Maternowski revealed any confidential information about his case to anyone that he was not authorized to. There is simply no evidence that Maternowski violated attorney-client confidentiality.
Section 1.3 - Henderson has not shown that trial counsel's failure to impeach the forensic pathologist was ineffective assistance.
[¶14] At both trials, Henderson claimed self-defense. Forensic pathologist Dr. John Pless testified as the State's expert witness at both trials. At the first trial, the jury found Henderson guilty of murdering Miller but was unable to reach a verdict on the remaining counts. At the second trial, Henderson was found guilty of murdering Odom. Henderson claims that Dr. Pless's testimony regarding Odom's position in relation to Henderson's was relevant to Henderson's self-defense claim, that Dr. Pless's testimony on this matter in the second trial was inconsistent with his testimony in the first trial, and that Maternowski failed to impeach Dr. Pless on the inconsistency, resulting in prejudice to Henderson's defense.
[¶15] At the first trial, Dr. Pless testified as follows:
Q: Are you able to tell the jury, sir - can you tell them the angle of the path of the bullet?
A: The bullet went from right to left, pretty much at a 45-degree angle through the head, and went from head to toe, or down at a similar angle.….
Q: Based on what you saw and what you know, were you able to tell what position Mr. Odom might have been in when he was shot, whether or not he was facing that person or if he was behind that person or to the side of that person? Are you able to tell by the physical evidence that you see?
A: I really can't tell because of the possibility of the extreme movement of the head through a 180-degree arc, so it would not be possible for me to look at the wound and tell you exactly where the attacker was located.Trial Tr. Vol. 1 at 113-14 (emphases added).
[¶16] At the second trial, Dr. Pless provided the following testimony:
Q: You've testified, sir, about the path of the bullet. Given your experience and from what you observed in the autopsy if the person that shot Mr. Odom was in the back seat of the car and Mr. Odom was in the front seat of the car and if he had a seatbelt harness-the doors were closed-do you have an opinion as to where the position of his head would have been when he was shot?
A: Yes.
Q: What is that opinion, sir?
A: His head would have been turned to the right in this manner.
Q: Given those same set of circumstances-that the shooter is in the back seat and Mr. Odom is in the front seat, that he has a harness or shoulder seatbelt on; is it possible that Mr. Odom could have been facing the shooter?
A: Directly facing him?
Q: Yes, sir.
A: No. Trial Tr. Vol. 5 at 133 (emphases added).
[¶17] We do not agree that Dr. Pless's testimony was inconsistent. In the first trial, the question was whether Dr. Pless could tell from the physical evidence what Odom's position was in relation to the shooter. Dr. Pless stated that he could not tell from the wound where the attacker was located. In the second trial, Dr. Pless was asked whether, given that the shooter was in the back seat and Odom was in the front seat with a seatbelt harness on, Odom could have been facing the shooter. Based on those circumstances, Dr. Pless stated that Odom could not have been facing the shooter. The context of the questions was different, and therefore Dr. Pless's answers were not inconsistent. Accordingly, Maternowski did not provide ineffective assistance by not impeaching Dr. Pless.
Section 1.4 - Henderson has not shown that trial counsel provided ineffective assistance by failing to move for a mistrial.
[¶18] Near the end of the second trial, Juror 11 sent a note to the trial court, reporting that during the lunch break, he happened to see a coworker and spoke briefly to him. During that conversation, Juror 11 mentioned the Henderson trial to the coworker, who said, "Oh, that's the one where the guy killed the dudes because he needed rent money." Trial Tr. Vol. 6 at 183. Juror 11 told his coworker that he had not heard that and said that he had to get back to the jury. Id. As Juror 11 was walking away, his coworker said that he had heard it from one of the mothers. Id.
[¶19] The trial court informed the parties of the note, read it in open court, and brought Juror 11 in for questioning. The court began by asking Juror 11 whether the information he heard from the coworker would influence his decision as a fair and impartial juror, and Juror 11 said, "No." Id. at 184. Juror 11 indicated that he did not think his coworker's comment was necessarily true because the coworker knew "nothing about this trial." Id. The court also asked Juror 11 whether he had told any of the other jurors what he had heard. Juror 11 replied, "No, no, I did not. I merely said I heard something over the noon hour that I thought might be a problem. And they all wanted to know what it was so that they could get out of jury duty." Id.
[¶20] The trial court then allowed the prosecutor and trial counsel to question the juror. Maternowski asked Juror 11 what he had told the other jurors. Juror 11 reiterated that he had told them that he might have heard something that might create a problem and that he had declined to answer any of their questions regarding what he had heard. Id. at 187. Juror 11 also revealed that some jurors had asked, "Is it something that would get you off of jury duty," and that he had responded, "I don't know. That's something that I'm going to leave for the Judge to decide." Id. Juror 11 explained, "And then they were joking about, you know, 'If it's something that will get us all off, you've got to tell us what it is.'" Id. Maternowski asked Juror 11 whether any of the other jurors had seen him talking to his coworker, and he said that he did not believe so. Id. Maternowski requested that Juror 11 be disqualified. The trial court excused Juror 11 and seated an alternate.
[¶21] Henderson asserts that Maternowski provided ineffective assistance by failing to move for a mistrial after Juror 11 was excused. "To prevail on an ineffective assistance of counsel claim based upon counsel's failure to file a motion, the petitioner must demonstrate that the motion would have been successful." Talley v. State, 51 N.E.3d 300, 303 (Ind.Ct.App. 2016), trans. denied. When seeking a mistrial for suspected jury taint, a defendant is entitled to a presumption of prejudice upon a showing that "(1) extra-judicial contact or communications between jurors and unauthorized persons occurred, and (2) the contact or communications pertained to the matter before the jury." Ramirez v. State, 7 N.E.3d 933, 939 (Ind. 2014). If the defendant makes this showing, "[t]he burden then shifts to the State to rebut th[e] presumption of prejudice by showing that any contact or communications were harmless." Id.
[¶22] Here, Juror 11 had an extra-judicial communication with an unauthorized person, and the communication pertained to a matter before the jury. Thus, Henderson would be entitled to a presumption of prejudice. However, Henderson's motion for mistrial would not have been granted because the communication between Juror 11 and his coworker was harmless. Juror 11 did not reveal the content of the communication with his fellow jurors, and Juror 11 was dismissed. Henderson's argument regarding prejudice focuses on the other jurors jokingly telling Juror 11 that if the communication would get them dismissed, he should tell them. Henderson claims that the possibility that the jurors were not joking was cause enough for Maternowski to move for mistrial. But such speculation does not show, as Henderson must, that a mistrial would have been granted, and Henderson fails to show how the jurors' comments to Juror 11 impacted the fairness of his trial. We conclude that Juror 11's communication with his coworker was harmless, and therefore a mistrial would not have been granted. As such, Henderson has not shown that Maternowski was ineffective in this regard.
Section 1.5 - Henderson has not shown that trial counsel provided ineffective assistance by failing to request an instruction for reckless homicide.
[¶23] Henderson contends that Maternowski should have requested an instruction on reckless homicide as a lesser-included offense of murder. Murder, as charged here, is the knowing killing of another human being. Direct Appeal Appellant's App. at 60; Ind. Code § 35-42-1-1. Reckless homicide is the reckless killing of another human being. Ind. Code § 35-42-1-5. Because the only difference between the two offenses is the mens rea element, reckless homicide is an inherently included offense of murder. Griffin v. State, 963 N.E.2d 685, 691 (Ind.Ct.App. 2012). To determine whether the jury should be instructed on an inherently included lesser offense, the court must assess whether a serious evidentiary dispute exists whereby the "jury could conclude that the lesser offense was committed but not the greater." Wright v. State, 658 N.E.2d 563, 567 (Ind. 1995). In deciding if there is a serious evidentiary dispute, the court "must look at the evidence presented in the case by both parties." Id. "This involves evaluating the 'weight and credibility of [the] evidence,' and determining the 'seriousness of any resulting dispute.'" Leonard v. State, 80 N.E.3d 878, 885 (Ind. 2017) (quoting Fish v. State, 710 N.E.2d 183, 185 (Ind. 1999)).
[¶24] The question before us in this case is whether the evidence created a serious evidentiary dispute regarding Henderson's culpability such that the jury could have concluded he committed reckless homicide but not murder. Levels of culpability are defined in Indiana Code Section 35-41-2-2, which provides as follows:
(b)A person engages in conduct "knowingly" if, when he engages in the conduct, he is aware of a high probability that he is doing so.
(c)A person engages in conduct "recklessly" if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.
[¶25] Henderson asserts that the evidence created the possibility that the shooting was in self-defense, "giving rise to a serious evidentiary dispute as to whether Henderson potentially overreacted, constituting reckless homicide as opposed to murder." Appellant's Br. at 23. We disagree. The evidence shows that Odom was shot in his right temple with the gun between one and six inches away from his head. Trial Tr. Vol. 5 at 128, 131; Trial Tr. Vol. 6 at 144-45. Miller was shot twice, once in the back of his head and once at the base of his neck at a range of one to three feet. Trial Tr. Vol. 1 at 114-15; Trial Tr. Vol. 3 at 160; Trial Tr. Vol. 5 at 141-43. Our supreme court has held, "When one aims a gun at another person's shoulder or upper chest area and fires it, he or she is reasonably aware of a high degree of probability that the shot may kill." Etienne v. State, 716 N.E.2d 457, 463 (Ind. 1999). Given that Henderson shot both victims in the head at close range, we conclude that he was aware of a high probability that death would result from the gunshots and that there was no serious evidentiary dispute regarding his culpability. See Sanders v. State, 704 N.E.2d 119, 122-23 (Ind. 1999) (finding no serious evidentiary dispute existed where defendant killed victim by firing handgun directly at victim at close range). Thus, Maternowski did not provide ineffective assistance by failing to request an instruction on reckless homicide because such an instruction was not warranted.
Section 1.6 - Henderson has not shown that trial counsel provided ineffective assistance by failing to object to a juror who had a prior relationship with Henderson.
[¶26] Henderson claims that one of the jurors was a teacher at his high school who tried to get him expelled, that he told Maternowski to strike this juror, and that Maternowski's failure to strike this juror was ineffective assistance. "The right to a fair trial before an impartial jury is a cornerstone of our criminal justice system." Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012). An essential component of this right is that a criminal defendant be tried by a panel of impartial, indifferent jurors. Id. The petitioner bears the burden on post-conviction to demonstrate that a juror was biased or prejudiced. Ben-Yisrayl v. State, 738 N.E.2d 253, 269 (Ind. 2000); Hall v. State, 849 N.E.2d 466, 472 (Ind. 2006).
[¶27] The post-conviction court found that there were no facts in the record to support this claim, and we agree. Henderson introduced no evidence at the PCR hearing that this juror tried to get him expelled. In addition, Henderson introduced no evidence that he told Maternowski about it. Henderson did not testify at the PCR hearing. When Henderson questioned Maternowski why Maternowski did not strike the juror after Henderson had asked him to, Maternowski testified that he did not recall that Henderson had told him about the juror or asked to have the juror stricken. PCR Tr. Vol. 2 at 23-24. Accordingly, Henderson has failed to carry his burden to show that a juror was biased against him or that Maternowski's failure to strike this juror was ineffective assistance.
Section 1.7 - Henderson has not shown that trial counsel provided ineffective assistance by failing to object to prosecutorial misconduct.
[¶28] At Henderson's first trial, the prosecutor made the following statement during closing argument:
Do you recall I asked all of you whether you could rob a dead person, and you all agreed with me that you could; that the fact that they were alive didn't matter …. That wasn't a requirement of robbery. It's a person who's armed with a deadly weapon taking property from someone's person or their presence.Trial Tr. Vol. 4 at 133.
[¶29] Henderson asserts that the prosecutor misstated the law regarding whether a defendant could rob a dead person and that Maternowski's failure to object to the misstatement constitutes ineffective assistance. "To prevail on a claim of ineffective assistance due to prosecutorial misconduct, a petitioner for post-conviction relief must show that prosecutorial misconduct in fact occurred." Pruitt v. State, 903 N.E.2d 899, 928 (Ind. 2009). Here, Henderson cannot establish that he was a victim of prosecutorial misconduct because the prosecutor did not misstate the law. See Robinson v. State, 693 N.E.2d 548, 554 (Ind. 1998) (rejecting defendant's contention that evidence of robbery was insufficient because victim was already dead when defendant took victim's property and holding that taking of victim's property by use of force against him while he was still alive was sufficient to convict defendant of robbery). Therefore, the failure to object cannot be ineffective assistance.
Because Henderson has not successfully established any of his claims that trial counsel was ineffective, we need not address his claim of cumulative error.
Section 2 - Henderson has failed to carry his burden to show that appellate counsel provided ineffective assistance.
[¶30] "The standard for gauging appellate counsel's performance is the same as that for trial counsel." Pruitt, 903 N.E.2d at 927-28. Henderson claims that appellate counsel provided ineffective assistance by failing to raise issues. "[T]he decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel" and therefore ineffective assistance based on the failure to raise issues "is very rarely found." Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006). "[T]he defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential." Id. at 1195.
To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are clearly stronger than the raised issues. If the analysis under this test demonstrates deficient performance, then we examine whether[] the issues
which appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial.Id. (citations, quotation marks, and ellipsis omitted).
Section 2.1 - Henderson has not shown that appellate counsel provided ineffective assistance by failing to challenge the sufficiency of the evidence supporting his robbery convictions.
[¶31] Henderson argues that the State's evidence did not prove that a robbery occurred and that this issue was significant and obvious from the face of the record and clearly stronger than the raised issues. To carry its burden at trial, the State was required to prove beyond a reasonable doubt that Henderson knowingly took property from another person or from the presence of another person by using or threatening the use of force. Ind. Code § 35-42-5-1 (1998).
[¶32] The evidence shows that Henderson set up meetings with Miller and Odom to sell them marijuana, but he did not have any marijuana with him at either meeting, and he never asked to be driven to retrieve it. Trial Tr. Vol. 6 at 62. Henderson picked a "dark secluded place" for the second meeting, and he cleaned his gun and bullets before the meeting. Trial Tr. Vol. 5 at 83; Trial Tr. Vol. 6 at 45. At the second meeting, Henderson went to Miller and Odom's vehicle two times and brought his handgun with him both times. The first time, he carried the handgun in his front waistband, and the second time, he put it in Dorsey's black bag that was full of software and tools. Trial Tr. Vol. 6 at 61. A few seconds after shooting Miller and Odom, Henderson exited the vehicle, reached toward the front of the inside of the car to "grab something[, ]" picked up something from the ground, and returned to Dorsey's car with a "wad" of cash. Id. at 64-66. Henderson paid Dorsey $500 for driving him that night. Id. at 68.
[¶33] Our supreme court has noted that "whether robbery was intended at the time the victim was killed is a matter which may be determined from the facts." Mahone v. State, 541 N.E.2d 278, 280 (Ind. 1989). Further, a "jury is justified in finding that although the killing actually occurred before property was taken, the crime should be considered as a continuing act and cannot be separated to place the killing outside of the intent to rob." Id. The evidence showing Henderson's actions leading up to the shootings and the continuity of action linking the shootings and the taking is sufficient to support the jury's determination that Henderson took property from another person or the presence of another person by using or threatening the use of force. See Burns v. State, 722 N.E.2d 1243, 1245 (Ind. 2000) (stating that jury could have credited witness's testimony that defendant removed the contents of victim's pockets after shooting victim and concluded that defendant intended to rob victim from the outset). Consequently, Henderson has failed to show that this issue was significant and obvious from the face of the record.
Section 2.2 - Henderson has not shown that appellate counsel provided ineffective assistance by failing to challenge the appropriateness of his sentence.
[¶34] This "Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B). The defendant bears the burden to show that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g 875 N.E.2d 218. "[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). "Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
When Henderson was sentenced on November 22, 2002, Appellate Rule 7(B) read, "The Court shall not revise a sentence authorized by statute unless the sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender." The current version of the rule became effective on January 1, 2003, and Henderson's appellate counsel filed her brief on May 21, 2003.
[¶35] Henderson was convicted of two counts of murder and two counts of class B felony robbery. The advisory sentence for murder is fifty-five years, with a sentencing range of forty-five to sixty-five years. Ind. Code § 35-50-2-3 (1998). In addition, for his murder convictions, Henderson could have received the death penalty or life imprisonment without parole based either on the fact that he committed murder while committing robbery or because he committed another murder. Ind. Code § 35-50-2-9(b)(1)(G), -(b)(8) (1998). The advisory sentence for a class B felony is ten years, with a range of six to twenty years. Ind. Code § 35-50-2-5 (1998). Henderson was sentenced to concurrent terms of sixty years for his murder convictions, to be served consecutively to concurrent terms of twenty years for his robbery convictions, for an aggregate term of eighty years.
[¶36] As for the nature of the crimes, we observe that there were multiple victims. "[I]t is well settled that 'injury to multiple victims' supports the imposition of consecutive sentences." Lewis v. State, 31 N.E.3d 539, 543 (Ind.Ct.App. 2015) (quoting McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001)). If Henderson had been sentenced to the minimum term for each murder conviction and ordered to serve them consecutively, his sentence would have been ninety years, which is more than the aggregate sentence he received.
[¶37] As for Henderson's character, he claims that he has no criminal history, was an athlete trying out for the Olympics, and was well liked in the community. Appellant's Br. at 33 (citing Appellant's App. Vol. 2 at 52). His citation is to his PCR petition, which was not offered or admitted as evidence. We conclude that Henderson has not shown that the appropriateness of his sentence was an issue that was significant and obvious from the face of the record, and therefore that his appellate counsel's failure to raise it was ineffective assistance.
[¶38] Based on the foregoing, we conclude that Henderson has failed to carry his burden to show that the post-conviction court clearly erred in determining that he was not entitled to post-conviction relief. Accordingly, we affirm the post-conviction court's order.
[¶39] Affirmed.
Bailey, J., and Pyle, J., concur.