Baker, Judge.
MEMORANDUM DECISION
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. ATTORNEY FOR APPELLANT Mark Small
Indianapolis, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr.
Attorney General of Indiana Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana Appeal from the Hamilton Circuit Court The Honorable Paul A. Felix, Judge Trial Court Cause No. 29C01-1304-PC-2849 Baker, Judge. [1] Augustus Mendenhall appeals the post-conviction court's denial of his petition for post-conviction relief, arguing that he was deprived of the effective assistance of counsel at numerous times throughout his trial for Class A Felony Attempted Murder, Class B Felony Robbery Resulting in Serious Bodily Injury, Class B Felony Aggravated Battery, Class B Felony Criminal Confinement, and Class A Misdemeanor Resisting Law Enforcement. [2] Mendenhall argues that his defense attorney was ineffective by (1) failing to object to prosecutorial misconduct; (2) failing to object to alleged judicial misconduct; and (3) failing to elaborate on potential defenses and to request proper jury instructions. Finding no error, we affirm.
Prior to this post-conviction appeal, we handed down an opinion from a direct criminal appeal by Mendenhall in which he argued that his five convictions should be overturned. Mendenhall v. State, 963 N.E.2d 553 (Ind. Ct. App. 2012). We affirmed all the convictions, but we remanded with instructions to reduce Mendenhall's robbery conviction to a Class C felony. Id. at 573.
Facts
[3] The parties to this case have a long and storied past. In 1983, Burke Mendenhall (Burke), a real estate developer and Mendenhall's father, leased property within the Lafayette Square region in Indianapolis to a tenant who planned to open an adult bookstore. Edward DeLaney, an attorney and current member of the Indiana House of Representatives, was working for the firm of Barnes & Thornburg during this period. DeLaney filed a lawsuit on behalf of requested a new trial. On January 2, 2018, the post-conviction court denied his request for relief. Mendenhall now appeals.
In 1983, the firm was called Barnes, Hickman, Pantzer & Boyd.
Discussion and Decision
I. Standard of Review
[15] Mendenhall appeals the denial of his request for post-conviction relief, arguing that he was denied the effective assistance of counsel during his trial. He asserts that any one of his claims evaluated either individually or in the aggregate denied him his Sixth Amendment rights to a fair trial, an impartial jury, and proper legal representation. See Williams v. State, 508 N.E.2d 1264, 1268 (Ind. 1987) (holding that "while each error of counsel individually may not be sufficient to prove ineffective representation, an accumulation of such failures may amount to ineffective assistance"). He puts forward three major claims on review: (1) that counsel failed to object to prosecutorial misconduct; (2) that the second prong, the defendant must show prejudice: a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different. Id. [18] There is already a strong presumption that an attorney exercises adequate judgment in his representation, and we are reluctant to second-guess the professional decisions and strategic choices of counsel in hindsight. See Pennycuff v. State, 745 N.E.2d 804, 811 (Ind. 2001). Any judicial scrutiny of counsel's performance is highly deferential, and poor strategy or tactics utilized by counsel during trial do not necessarily constitute ineffectiveness. Id.
Mendenhall claims upwards of twelve to thirteen instances of ineffectiveness of counsel, many of which lack cogency and/or merit. Arguments that we reject outright are as follows:
(1) Counsel's failure to object to DeLaney's supposed perjured statements. Mendenhall has waived this issue because he failed to raise it in his amended petition for post-conviction relief. PCR App. Vol. II p. 74-79.
See Allen v.
State, 749 N.E.2d 1158, 1167 (Ind. 2001). The post-conviction court made no findings of fact or conclusions law regarding this issue, so we decline to address it in this appeal.
(2) Counsel's failure to disclose a supposedly "exculpatory" chapter from the book Fight Club. Though Mendenhall claims this information is material, we find it simply extraneous and unavailing.
(3) Counsel's failure to object to the order of witness testimony. We already decided, adversely to Mendenhall, that not only did he waive any claim regarding order of witnesses but also that any argument put forth was unpersuasive. Mendenhall, 963 N.E.2d at 566-69. Issues raised on direct appeal, and decided adversely, are res judicata, and not available in post-conviction proceedings. Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001); see also Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999).
(4) Counsel's failure to call expert witness Dr. Karen Fuller to present potentially exculpatory evidence. Mendenhall has waived this issue because he failed to raise it in his amended petition for post-conviction relief. PCR App. Vol. II p. 74-79. See Koons v. State, 771 N.E.2d 685, 691-92 (Ind. Ct. App. 2002). The post-conviction court only briefly mentioned and dismissed this issue, so we decline to address it in this appeal.
(5) Counsel's failure to thoroughly question Mendenhall about his true motive and intent. Though Mendenhall claims that counsel failed to let him testify about what his true motives were, he offers no evidence that counsel's questioning—or alleged lack thereof—severely tarnished his image to the jury. Therefore, we decline to address it now. This is simply another argument that attempts to circumvent the wide latitude given to counsel in terms of how he questions or does not question his witnesses.
II. Prosecutorial Misconduct
[19] Mendenhall first argues that his defense counsel did not properly object to alleged prosecutorial misconduct. We will first determine if there was actual prosecutorial misconduct. If there was no misconduct, then there is no merit to Mendenhall's claim that counsel should have objected. [20] To show prosecutorial misconduct, the defendant must show that the alleged misconduct (1) constituted a clearly blatant violation of basic and elementary principles of due process; (2) presented an undeniable and substantial potential for harm; and (3) made a fair trial impossible. Washington v. State, 902 N.E.2d 280, 290 (Ind. Ct. App. 2009). Moreover, the alleged misconduct must have subjected the defendant to grave peril and had a probable persuasive effect on the jury's decision. Id.
A. Voir Dire
[21] First, Mendenhall argues that statements made by the prosecution during voir dire rise to the level of misconduct. To Mendenhall, the prosecution indoctrinated members of the jury by alluding to "Ferris Bueller," "Twinkies," and the possibility that Mendenhall was faking his mental illness. We find this argument unavailing. [22] It can hardly be said that the prosecution's statements constituted a blatant violation of basic and elementary principles of due process. During voir dire, the State's attorney is not permitted to try the case or engage in questioning that is "clearly improper [or] . . . calculated to prejudice [a] fair trial[]." Robinson v. State, 297 N.E.2d 409, 411 (Ind. 1973). Here, however, the prosecution was highlighting Mendenhall's claim that he suffered from a mental illness. This was a reasonable strategy on the part of the prosecution to determine how potential jurors felt about insanity pleas and mental illness in general rather than a plan to prejudice the jurors. [23] Furthermore, there is no evidence to conclude that raising these points during voir dire presented an undeniable and substantial potential for harm. In fact, the jury ultimately returned a conviction of guilty but mentally ill, demonstrating that the jury was persuaded enough to designate Mendenhall as mentally ill when he committed his actions. If anything, the prosecutor's comments added to the trial's overall discussion about mental illness, and there is no compelling evidence that such comments made a fair trial impossible. As such, defense counsel was not ineffective for failing to object during voir dire.
B. Opening and Closing Statements
[24] Second, Mendenhall claims that certain comments made by the prosecution during its opening and closing statements constituted misconduct. [25] Mendenhall points to the incorrect statements the prosecution made about how DeLaney saw a "double-feed malfunction" from the gun while inside the car. Appellant's Br. p. 26. This assertion was unsubstantiated and later proven to be incorrect. Mendenhall cites potential violations of professional conduct and evidentiary rules, but we are tasked with evaluating whether this erroneous stunt made by the prosecutor blatantly violated Mendenhall's due process rights and made it impossible for him to have a fair trial. We cannot say that it did. There is no indication that this lone comment unfairly shifted the jury or so up-ended the legal proceedings that Mendenhall was placed in grave peril. Therefore, the statement did not amount to misconduct and counsel was not ineffective for failing to object. [26] Mendenhall also argues that peculiar references made by the prosecution in its closing and rebuttal statements rose to the level of misconduct. These references include images of the September 11, 2001, terrorist attacks, child marriages in Yemen, female infanticide in India and China, and child prostitution in Honduras. Trial Tr. p. 1041, 1044. While bizarre and seemingly unrelated to [29] Most importantly, counsel admitted that he did not object to any alleged prosecutorial misconduct throughout the trial because he thought it was "impolite," PCR tr. vol. II p. 121, and because it was not his style. Once again, we defer heavily to the tactics and strategies employed by counsel at the time of trial, and we begin with the presumption that counsel adequately represents his client to the best of his abilities. [30] We cannot conclude that any of the actions committed by the prosecution amounted to prosecutorial misconduct. Therefore, counsel was not ineffective by not objecting to highlighted statements of the prosecutor.
III. Judicial Misconduct
[31] Mendenhall next argues that counsel did not properly object to perceived judicial bias from the judge presiding over his trial. Mendenhall claims the judge repeatedly made inappropriate comments, showed "disdain" and hostility in demeanor, appellant's br. p. 38, and uniformly agreed with the State's position and wholly disagreed with the defense's position. [32] As with prosecutorial misconduct, we will first determine if there was judicial bias or misconduct. If there is no showing of judicial misconduct, it cannot be found that counsel was ineffective for failing to object. [33] A trial before an impartial judge is an essential element of due process. Everling v. State, 929 N.E.2d 1282, 1287 (Ind. 2010). To determine if a trial judge is impartial, we will examine "the judge's actions and demeanor while certainly did not wholly dismiss the arguments and evidence proffered by the defense. [38] For the foregoing reasons, we conclude that there was no judicial bias that would have deprived Mendenhall of his due process rights. Therefore, any claim that counsel was ineffective by not objecting to perceived claims of judicial bias is unavailing.
IV. Counsel's Failures
[39] Mendenhall finally argues that counsel failed at three specific moments to elaborate on potential defenses and to request the proper jury instructions. Specifically, Mendenhall claims that: (1) counsel failed to ask for a jury instruction regarding whether the gun safety was off; (2) counsel failed to bring up a certain defense after introducing the idea in his opening argument; and (3) counsel failed to request an instruction on the definition of "wrongfulness" for the jury. We will address each claim in turn. [40] First, one of Mendenhall's defenses was that his gun safety was on during the altercation, showing that he did not intend to kill DeLaney. He claims that counsel should have asked for a jury instruction regarding whether the gun safety was off. [41] While Mendenhall is correct in pointing out that a criminal defendant is entitled to have a jury instruction on any theory or defense which has some foundation in the evidence, Toops v. State, 643 N.E.2d 387, 389 (Ind. Ct. App. instruction on the definition of "wrongfulness" for the jury. He argues that he was "undoubtedly prejudiced by the failure to define wrongfulness," appellant's br. p. 58, because the jury would have been confused as to whether wrongfulness meant being legally or morally wrong. [46] Here, there is no evidence to suggest that the jury determined that "wrongfulness" was synonymous with "illegal." The defense presented numerous expert witnesses who testified to Mendenhall's mental state and how he felt morally bound to do something about DeLaney and the alleged pain this man inflicted upon his family. The jury could have clearly discerned from this presentation that wrongfulness equated with moral wrongfulness and more than just illegal conduct. There is no definitive evidence or legal standard that would lead us to believe that this omission of a clearer definition of wrongfulness unduly prejudiced Mendenhall nor that counsel was ineffective as an attorney for failing to request such an instruction.
See Ind. Code § 35-36-2-5(a). --------
Conclusion
[47] No evidence leads us to a conclusion opposite that reached by the post-conviction court; there was no ineffectiveness of counsel that deprived Mendenhall of his Sixth Amendment rights to a fair trial, an impartial jury, or adequate representation of counsel either in any individual claim or in the aggregate. 19 [48] The judgment of the post-conviction court is affirmed. Robb, J., and Crone, J., concur.