MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jul 08 2015, 9:12 am
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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Kyle Beals Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kyle Beals, July 8, 2015
Appellant-Petitioner, Court of Appeals Case No.
49A02-1411-PC-776
v. Appeal from the Marion Superior
Court
State of Indiana,
The Honorable Grant W. Hawkins,
Appellee-Respondent. Judge
Trial Court Case No.
49G05-0812-PC-292518
Mathias, Judge.
[1] Kyle Beals appeals from the Marion Superior Court’s denial of his petition for
post-conviction relief. On appeal, Beals presents five issues for our review,
which we restate as:
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I. Whether the post-conviction court erred in concluding that Beals was not
denied the effective assistance of trial counsel;
II. Whether the post-conviction court erred in concluding that Beals was not
denied the effective assistance of appellate counsel;
III. Whether the trial court abused its discretion when it failed to issue a
directed verdict sua sponte in Beals’ favor;
IV. Whether the post-conviction court erred by failing to order that the voir
dire from Beals’ trial be transcribed and provided to him for purposes of
pursuing his post-conviction petition; and
V. Whether a retrial on Beals’ habitual offender adjudication is prohibited
by the constitutional prohibitions against double jeopardy.
[2] We affirm.
Facts and Procedural History
[3] The facts regarding Beals’ convictions were set forth in our memorandum
decision on direct appeal as follows:
[4] Coming home from work shortly before 1:00 a.m. on December
23, 2008, Pamela Murphy stopped at the 7-11 store for cigarettes.
As she chatted with cashier Delores Booth, Beals entered the
store wearing a black ski-mask, a tan-colored Carhartt-style
jacket, blue jeans and white tennis shoes. Beals pulled out a
black gun, pressed it to her back, pushed her against the counter,
and demanded that Booth “open the register or he was going to
kill” them both. Booth pulled out the register drawer and put it
on the counter. Beals took the money from the drawer and
ordered both women to the floor. They complied, and Beals left
the store.
[5] Booth had activated a silent alarm as she dropped to the floor,
and after Beals left, she also called 9-1-1. Officer Robert Hicks
responded to the 12:56 a.m. dispatch and arrived within three
minutes. After receiving reports from the women, Hicks
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broadcast the robber’s description—a white male, approximately
6'3" and 250 pounds, wearing a ski mask, Carhartt-style jacket,
and blue jeans. Subsequently, Detective Delbert Shelton arrived
at the 7-11 to investigate the armed robbery.
[6] At approximately 2:30 a.m. on the same morning, Leandro
Goodman and Roger Terry were working at the Airport
Marathon station/store. Beals entered wearing a black ski mask,
tan Carhartt-style jacket, blue jeans, and white tennis shoes.
Beals displayed a black gun and ordered both men to get on the
floor; when he was unable to open the cash register, he ordered
Goodman to get up and open it. Goodman opened the drawer,
and Beals “snatched the money out the drawer [sic] and ran out
the doorway.”
[7] Meanwhile, after finishing their shifts at a business several blocks
away, Aaron Butler and Aaron Grose went to their vehicles and
found that the locks on Grose’s truck had frozen. Butler drove
Grose to the Marathon for de-icer. As the two men approached
the door, Beals exited—wearing a Carhartt-style jacket, blue
jeans, and black ski mask, with a gun in his right hand and
“money coming out of” his left jacket pocket. Once inside the
Marathon, they confirmed that it had just been robbed.
[8] Goodman had telephoned the police to report the robbery after
Beals left the store. Dispatch reported the robbery. Officer Doug
Himmel was at a nearby intersection when he heard the dispatch,
and saw a blue Explorer driven by a man in a Carhartt-style
jacket—Beals. The driver of another vehicle pointed at the
Explorer, and Himmel followed it.
[9] Other officers were alerted to Beals’ location, and they
participated in an attempted traffic stop. Beals disregarded the
officers’ flashing lights and fled. Eventually, Beals turned into a
semi-truck parking lot. He crashed over a curb, drove around the
lot in circles, and then plowed through a fence before his vehicle
came to a stop. Beals then fled on foot, with several officers in
pursuit—“everybody . . . yelling stop police.” Himmel tackled
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Beals but had difficulty controlling him. Himmel finally brought
Beals to the ground and was able to subdue him.
[10] Beals was wearing a tan Carhartt-style jacket, blue jeans, and
white tennis shoes. In his jacket pocket was $350.00, “crammed”
in a “pile of money that was completely wadded up.” Further,
inside the crashed Explorer were additional bills, as well as a
black ski mask, and a black BB gun was found on the pavement
of the semi-truck parking lot that Beals had circled.
[11] From the Marathon store, various officers had individually
transported Grose, Butler, Goodman, and Terry to the scene
where Beals had been stopped. Grose testified that when he
arrived at the scene, he saw Beals “standing” there “wearing the
same exact stuff,” including the Carhartt-style jacket, and
recognized him as the “person that [he] walked past in the gas
station.” Butler testified that he identified Beals based on his
physical stature and “[t]he clothes he was wearing,” which “was
a match to the gentleman that walked out of the gas station.”
Goodman testified that he recognized Beal[s] as “[t]he guy that
robbed me” based on his wearing “the same tan jacket and
jeans,” and having “the same build and height.” Terry testified
that based on “the size of the man and the build,” he recognized
Beal[s] as “the man that just robbed us.”
[12] Meanwhile, at the 7-11, Officer Shelton had heard the broadcast
description of the Marathon armed robber and noted the
similarity to the reports of the 7-11 robbery. Shelton went to
where Beals had been apprehended, and observed Beals’
Carhartt-style jacket, blue jeans, and white tennis shoes, as well
as his stature and race. Subsequently, Shelton compiled a photo
array that included Beals.
[13] On December 24, 2008, the State charged Beals. With respect to
the 7-11 incident, it charged him with one count of robbery and
two counts of criminal confinement (one as to Murphy, one as to
Booth), all as class B felonies. With respect to the Marathon
incident, it charged him with one count of robbery and two
counts of criminal confinement (one as to Goodman, one as to
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Terry), all as Class B felonies. It also charged Beals with one
count of resisting law enforcement, as a class D felony.
[14] On January 2, 2009, Officer Shelton showed Booth the photo
array. Booth unequivocally identified Beals as the man who had
robbed her at gunpoint on December 23rd, signing and dating it
for that purpose.
[15] On February 19, 2009, the State filed notice that it would seek to
have Beals adjudicated as an habitual offender. On November
29, 2009, Beals filed a motion to suppress identification evidence.
On February 5, 2010, the parties submitted a stipulation of facts
and evidence regarding Beals’ motion. On February 22, 2010, the
trial court denied Beals’ motion to suppress. Beals did not appeal
that ruling.
[16] A jury trial was held March 1 – 2, 2010, and testimony to the
above was heard. The jury also saw videotaped recordings of
both robberies. At no time during the trial did Beals object to any
identification testimony. The jury found Beals guilty as charged,
and the trial court found him to be an habitual offender.
[17] On April 1, 2010, the trial court held the sentencing hearing. It
sentenced Beals to twelve years on each count for the six class B
felony convictions, with the three counts for the 7-11 offenses to
be served concurrently, and the three counts for the Marathon
station offenses to be served concurrently; however, it ordered
the two robbery counts to be served consecutive to one another.
For the class D felony resisting law enforcement offense, it
sentenced Beals to a term of two years—consecutive to the
robbery sentences. In addition, the trial court enhanced the first
robbery sentence by twenty years for his being an habitual
offender, for a total executed sentence of forty-six years.
Beals v. State, No. 49A02-1004-CR-461, 2011 WL 9122, slip op. at 2-6 (Ind. Ct.
App. Jan. 3, 2011), trans. denied.
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[18] On direct appeal, Beals presented two issues: (1) whether the trial court abused
its discretion in admitting into evidence the pre-trial identifications of Beals,
and (2) whether Beals’ convictions for robbery and criminal confinement
violated the double jeopardy provisions of the Indiana Constitution. A panel of
this court rejected the first claim but agreed with Beals that his convictions for
robbery and criminal confinement constituted double jeopardy under the
Indiana Constitution. Id. at 9-10, 14. Accordingly, we reversed his convictions
for criminal confinement and remanded with instructions that the judgments
thereon be vacated. Id. at 14.
[19] On December 11, 2012, Beals filed a pro se petition for post-conviction relief and
declined to be represented by counsel. At the October 9, 2014, hearing held on
Beals’ petition, he called as witnesses his trial and appellate counsel. The trial
court granted Beals’ petition in part, vacating Beals’ guilty plea to the habitual
offender adjudication. However, the trial court denied the petition otherwise,
and Beals now appeals.
Post-Conviction Standard of Review
[20] Post-conviction proceedings are not “super appeals” through which convicted
persons can raise issues they failed to raise at trial or on direct appeal. McCary v.
State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead
afford petitioners a limited opportunity to raise issues that were unavailable or
unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443
(Ind. 2002). The post-conviction petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Henley v. State, 881
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N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment. Id. To prevail on appeal from the denial of post-conviction relief, the
petitioner must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction
court. Id. at 643-44.
[21] Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we
must determine if the court’s findings are sufficient to support its judgment.
Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947
N.E.2d 962. Although we do not defer to the post-conviction court’s legal
conclusions, we review the post-conviction court’s factual findings under a
clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or
judge the credibility of witnesses, and we will consider only the probative
evidence and reasonable inferences flowing therefrom that support the post-
conviction court’s decision. Id.
I. Ineffective Assistance of Trial Counsel
[22] Beals first claims that his trial counsel was ineffective for a variety of reasons.
Our supreme court has summarized the law regarding claims of ineffective
assistance of trial counsel as follows:
A defendant claiming a violation of the right to effective
assistance of counsel must establish the two components set forth
in Strickland v. Washington, 466 U.S. 668 (1984). First, the
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defendant must show that counsel’s performance was deficient.
This requires a showing that counsel’s representation fell below
an objective standard of reasonableness, and that the errors were
so serious that they resulted in a denial of the right to counsel
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. To establish prejudice, a defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Counsel is afforded considerable discretion in choosing strategy
and tactics, and we will accord those decisions deference. A
strong presumption arises that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. The Strickland Court
recognized that even the finest, most experienced criminal
defense attorneys may not agree on the ideal strategy or the most
effective way to represent a client. Isolated mistakes, poor
strategy, inexperience, and instances of bad judgment do not
necessarily render representation ineffective. The two prongs of
the Strickland test are separate and independent inquiries. Thus,
[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be
followed.
Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations
omitted).
A. Admission of BB Gun
[23] Beals first claims that his trial counsel was ineffective for failing to object to the
admission of the BB gun found in the parking lot near where Beals was
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ultimately apprehended. Beals argues that the State did not adequately lay the
foundation for the admission of the gun.
[24] To lay a foundation for the admission of evidence, the proponent of the
evidence must show that it has been authenticated. Pavlovich v. State, 6 N.E.3d
969, 976 (Ind. Ct. App. 2014), trans. denied. Under Indiana Evidence Rule
901(a),1 authentication of evidence is “satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.” Absolute
proof of authenticity is not required, and the proponent of the evidence needs to
establish only a reasonable probability that the exhibit is what it is claimed. Id.
Once this reasonable probability is shown, any inconclusiveness regarding the
exhibit’s connection with the events at issue goes to the exhibit's weight, not its
admissibility. Id.
[25] Beals claims that none of the witnesses were shown the BB gun prior to its
admission and that, therefore, the admission of the gun had no foundation. We
disagree. When the BB gun was admitted into evidence, it was simply identified
as the gun found in the parking lot where Beals had crashed his vehicle. The
evidence technician who photographed and collected the weapon identified the
gun as being the same one he found in the lot. Accordingly, the State properly
laid a foundation for the admission of the BB gun.
1
The Indiana Rules of Evidence were amended effective January 1, 2014, but the amendments did not alter
the substance of Evidence Rule 901. See Pavlovich, 6 N.E.3d at 979 n.4. Still, we refer to the version of
Evidence Rule 901 in effect at the time of Beals’ trial. See id.
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[26] Beals argues that none of the eyewitnesses to the robberies identified the BB
gun as being the one used during the robberies. This, however, goes to the
evidentiary weight of the BB gun, not its admissibility. The jury was presented
with evidence that a man matching Beals’ description had robbed two
convenience stores with a black weapon that appeared to be a semi-automatic
handgun. Beals was apprehended after a police chase that ended when he
crashed his vehicle in a parking lot and fled on foot. A black BB gun designed
to look like a semi-automatic handgun was found in the lot where Beals crashed
his vehicle. The jury could reasonably conclude that the BB gun found in the lot
was one and the same as the one used in the robberies.
[27] Moreover, even if we assume arguendo that Beals’ trial counsel’s failure to object
to the admission of the BB gun fell below an objectionable standard of
reasonableness, Beals would still not prevail on his claim of ineffective
assistance because he has failed to demonstrate adequate prejudice. As we
noted in our decision on Beals’ direct appeal:
[T]he jury viewed videotape recordings of both robberies, with
the robber clearly wearing the Carhartt-style jacket, blue jeans,
white tennis shoes, and a ski mask; his large stature is apparent.
From their initial reports to police immediately after the
robberies through their testimony at trial, all witnesses described
the robber as a tall white male, garbed in a Carhartt-style jacket,
blue jeans, and a black ski mask. Seen driving a vehicle “less than
500 feet from” the Marathon store, and clad in a Carhartt-style
jacket, Beals was followed by Officer Himmel. Beals disregarded
orders to stop, and was then pursued by Himmel and numerous
other officers until he crashed his vehicle and fled on foot. When
finally caught and subdued, Beals was wearing a Carhartt-style
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jacket, blue jeans—which jeans, admitted as an exhibit at trial,
were the same blue color as the jeans shown in the videotape
recordings of the robberies, and white tennis shoes; his jacket
pocket was crammed with $350.00 in loose bills; more bills were
found lying in his crashed vehicle; a black ski mask was also in
the vehicle; and a black BB gun was found in the lot where he
had crashed the vehicle.
Beals, slip op. at 9-10. Thus, even if the BB gun had been excluded, ample
evidence still existed to support Beals’ convictions. Several witnesses testified
that the robber used what appeared to be a black, semi-automatic handgun.
Accordingly, we conclude that Beals did not establish that, but for his trial
counsel’s failure to object to the admission of the BB gun, the result of his trial
would have been different.
B. Failure to Strike a Juror
[28] Beals next claims that his trial counsel was ineffective for failing to strike a
particular juror, T.L., during voir dire. At the post-conviction hearing, Beals
claimed that T.L. stated during voir dire that his wife had been the victim of a
robbery on the IUPUI campus and that the robber had never been caught.
Beals’ trial counsel and his investigator did not recall the juror stating this.
However, his trial counsel explained that, if he allowed this juror to be selected,
then he “must have had some other reason why I liked him.” Post-Conviction
Tr. p. 17. He further explained that “I don’t recall the juror [T.L.] in particular,
but, you know, if I, if I chose that person, I, I chose them for a reason.” Id. at
64.
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[29] Even if we accept Beals’ claims regarding what juror T.L. stated during voir
dire, i.e., that his wife had been the victim of a robbery, he cannot prevail. Beals
points us to no evidence or authority suggesting that someone who is married to
the victim of a crime is ineligible for jury service. Indeed, no such
disqualification exists. See Ind. Code § 33-28-5-18 (listing disqualifications from
jury service). Beals simply assumes that juror T.L. was prejudiced against him
and ignored his duty as a juror to act impartially. However, this is mere
speculation. Accordingly, Beals has not established that, but for his trial
counsel’s failure to strike juror T.L., the result of his trial would have been
different.
C. Failure to Object to Pre-Trial Identification Evidence
[30] Beals also claims that his trial counsel rendered ineffective assistance by failing
to object at trial to evidence regarding the victims’ pre-trial identification of
Beals as the man who robbed them. As we noted in our decision in Beals’ direct
appeal, Beals’ trial counsel did file a pre-trial motion to suppress evidence
regarding the pre-trial identifications, but the trial court denied this motion. At
trial, Beals’ trial counsel did not object to the evidence because he thought that
Beals’ complaints regarding the pre-trial identifications were not meritorious.
[31] Beals now claims that his trial counsel’s failure to object to the pre-trial
identification evidence precluded appellate review of the issue. In our decision
in Beals’ direct appeal, we did acknowledge Beals’ failure to object to the pre-
trial identification evidence, and we also stated that Beals would therefore have
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to demonstrate fundamental error to obtain a reversal based on this issue. See
Beals, slip op. at 7-8. However, in rejecting Beals’ claims, we held that the trial
court did not abuse its discretion in admitting evidence regarding the pre-trial
identifications. See id. at 8-9. Thus, we addressed Beals’ appellate argument
regarding the pre-trial identifications on the merits and found it to be lacking.
Accordingly, even if Beals’ trial counsel had objected to the pre-trial
identification evidence, the result of his trial would not have been different
because the trial court properly admitted the evidence.2
[32] Moreover, in Beals’ direct appeal, we held that even if the admission of the pre-
trial identification evidence was improper, it was harmless error, i.e., it did not
contribute to the verdict. Id. at 9. If the admission of the pre-trial identification
evidence was harmless, it would also be impossible for Beals to establish that he
was prejudiced by the admission of the evidence. See Baer v. State, 942 N.E.2d
80, 106 (Ind. 2011) (holding that counsel’s decision not to present a
confrontation-clause issue on direct appeal did not prejudice defendant because
the admission of the evidence at issue was harmless error).
[33] We therefore conclude that Beals has not established that his trial counsel was
constitutionally ineffective for failing to object to the pre-trial identification
evidence.
2
To the extent that Beals now claims we erred in concluding that the pre-trial identification evidence was
admissible, he cannot prevail. Because this issue was decided against him on direct appeal, it may not be
relitigated in post-conviction proceedings. See Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000) (noting
that when an issue is decided on direct appeal, the doctrine of res judicata applies, thereby precluding its
review in post-conviction proceedings).
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D. Failure to Impeach a Witness
[34] Beals’ next argument is that his trial counsel was ineffective for not impeaching
the testimony of Officer Fredrick Lantzer (“Officer Lantzer”) regarding whether
he was at the hospital when he came into possession of the clothes Beals was
wearing when arrested, clothes that were admitted into evidence at Beals’ trial.
Beals argues that Officer Lantzer’s testimony was inconsistent with the
testimony of evidence technician David Smiley (“Smiley”), who testified that
he obtained the clothes from an empty emergency room at Wishard Hospital.
In contrast, Officer Lantzer testified that he was at the emergency room and
had handed the clothing to Smiley. Beals also notes that neither the police
incident report nor the probable cause affidavit mention that Officer Lantzer
traveled to the emergency room. Beals contends that, because it went
unchallenged, Officer Lantzer’s testimony “took on great weight before the
jury.” Appellant’s Br. p. 15.
[35] We first note that Officer Lantzer’s testimony was not contradicted by either the
police report or the probable cause affidavit. The fact that these documents do
not mention Officer Lantzer’s presence in the emergency room does not
necessarily mean that Officer Lantzer was not at the emergency room.
Furthermore, the post-conviction court noted that one police report, as quoted
in the pre-sentence investigation report, clearly indicated that Officer Lantzer
was, in fact, at the emergency room:
Officer Lantzer . . . followed the ambulance to Wishard Hospital
that was transporting the suspect, Mr. Beals. When they arrived
on the scene to Wishard Hospital, Officer Lantzer was able to
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secure all the clothing from the suspect, then pass that clothing
off to E[vidence] T[echnician] Smiley, who arrived at Wishard a
short time thereafter.
Appellant’s App. p. 96. Thus, any impeachment of Officer Lantzer’s testimony
would have been of little value given the corroboration of his testimony in the
police report. Beals has demonstrated neither that the performance of his trial
counsel was deficient for not attempting to impeach Officer Lantzer’s testimony
nor that the result of the trial would have been different had his trial counsel so
attempted to impeach Officer Lantzer’s testimony.
E. Failure to Request Lesser-Included Offense Instruction
[36] Beals also contends that his trial counsel was ineffective for failing to request
that the jury be given an instruction on the lesser-included offense of Class C
felony robbery. Beals claims an evidentiary dispute at trial with regard to
whether Beals’ use of a BB gun constituted a deadly weapon for purposes of
elevating robbery from a Class C to a Class B felony. See Ind. Code § Ind. Code
§ 35-42-5-1 (1984)3 (providing that robbery was a Class C felony but a Class B
felony if committed while armed with a deadly weapon). He therefore argues
that he was entitled to a jury instruction on the lesser-included offense of Class
C felony robbery and that his trial counsel was ineffective for failing to request
such an instruction.
3
We refer to the version of the statute in effect at the time of the commission of the offense. See Culbertson v.
State, 792 N.E.2d 573, 578 (Ind. Ct. App. 2003) (noting that the statute in effect at the time the underlying
offense was committed governs a defendant’s proceeding).
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[37] Regardless of whether Beals would have been entitled to an instruction on the
lesser-included offense of Class C felony robbery, we cannot say that his trial
counsel was ineffective for failing to request such an instruction. The defense
theory at trial was that Beals was not the individual who had committed the
robberies. As Beals’ trial counsel explained at the post-conviction hearing:
the defense was it wasn’t you, so why would I say that it was you
but it wasn’t an armed robbery, it was a lesser robbery?
***
to me if you, you lose credibility when you try to argue out of
both sides of your mouth, so to speak. Well, he, he wasn’t there
but if he was, it wasn’t, you know, an armed robbery, it was
some lesser offense and I think that affects the weight of your
primary argument[.]
Post-Conviction Tr. pp. 52, 65.
[38] Thus, Beals’ counsel’s decision not to seek a lesser-included offense instruction
was a strategic decision based upon the defense theory that Beals was not the
robber. We will not second-guess this strategic decision with the benefit of
hindsight. See Brown v. State, 24 N.E.3d 529, 535 (Ind. Ct. App. 2015) (noting
that a decision not to tender a lesser-included offense does not constitute
ineffective assistance of counsel even where the lesser-included offense is
inherently included in the greater offense and where that choice ultimately
proves detrimental to the defendant).
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F. Failure to Object to Jury Instruction Defining Deadly Weapon
[39] Beals’ last allegation of ineffective assistance of trial counsel involves his
counsel’s failure to object to a jury instruction which stated:
The term deadly weapon is defined by law as meaning:
1. A loaded or unloaded firearm; or
2. Any weapon, device, taser, electronic stun weapon,
equipment, chemical substance, or other material that in the
manner it is used, or could ordinarily be used, is readily capable
of causing serious bodily injury.
Appellant’s App. p. 40. This instruction is a correct statement of the law, as it
tracks the language of the statute defining the term “deadly weapon.” See Ind.
Code § 35-41-1-8(a) (2006).4
[40] According to Beals, this instruction permitted the jury to find him guilty of
robbery with a deadly weapon under subsection (2), which deals with weapons
other than a loaded or unloaded firearm. Beals claims this was improper
because he was charged with using a “handgun” which is defined by statute as
a type of “firearm.” See Ind. Code § 35-47-1-6 (1983). Accordingly, Beals argues
that the State had to prove that he possessed a firearm, whereas the challenged
instruction allowed the jury to find him guilty even if it found that he used a BB
gun, which is not a firearm. See Miller v. State, 616 N.E.2d 750, 757 n.13 (Ind.
4
This statue has since been recodified at Ind. Code § 35-31.5-2-86 (2012) with no substantive changes.
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Ct. App. 1993) (holding that a pellet gun cannot be considered a “handgun”
because it uses carbon dioxide as the propellant, which cannot explode).5
[41] Beals’ argument, however, overlooks the actual language of the charging
information alleging that he committed robbery while armed with a deadly
weapon. The information did not charge that Beals used a “handgun.”
Instead, it alleged that Beals committed robbery “while armed with a deadly
weapon, that is: an air-powered BB replica handgun[.]” Direct Appeal App. p. 31-
33 (emphasis added).
[42] By charging Beals with the use of “an air-powered BB replica handgun,” the
State was not required to prove that the weapon used was an “actual handgun,”
i.e., a “firearm.” Instead, the jury could properly find that a BB gun was a
deadly weapon under subsection (2) of the instruction and the statute on which
it was based. See Davis v. State, 835 N.E.2d 1102, 1112 (Ind. Ct. App. 2005)
(noting that pellet guns and BB guns can be considered deadly weapons even
though they are not firearms and further noting that even disabled or inoperable
pellet guns are deadly weapons within the meaning of the robbery statute)
(citing Merriweather v. State, 778 N.E.2d 449, 457 (Ind. Ct. App. 2002);Whitfield
v. State, 699 N.E.2d 666, 670 (Ind. Ct. App. 1998)).
5
See id. at 758 (Rucker, J., dissenting in relevant part) (concluding that a pellet gun using carbon dioxide gas
did fit the statutory definition of a “firearm” because it expelled a projectile by way of an explosion, i.e.,
“sudden violence from internal energy caused by the pressure from CO2 gas.”).
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[43] Because the instruction at issue was a correct statement of the law, and because
Beals was charged with the use of a BB gun, not a firearm, we cannot say that
his trial counsel was ineffective for failing to object to the instruction.
II. Ineffective Assistance of Appellate Counsel
[44] Beals also claims that his appellate counsel was constitutionally ineffective.
When we review claims of ineffective assistance of appellate counsel, we use
the same standard applied to claims of ineffective assistance of trial counsel.
Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007). That is, the post-conviction
petitioner must show that appellate counsel’s performance fell below an
objective standard of reasonableness and that but for the deficient performance
of counsel, a reasonable probability exists that the result of the proceeding
would have been different. Id.
[45] We must consider the totality of an attorney’s performance to determine
whether the client received constitutionally adequate assistance and must be
“particularly sensitive to the need for separating the wheat from the chaff in
appellate advocacy, and should not find deficient performance when counsel’s
choice of some issues over others was reasonable in light of the facts of the case
and the precedent available to counsel when that choice was made.” Reed v.
State, 856 N.E.2d 1189, 1196 (Ind. 2006). Moreover, ineffective assistance is
very rarely found in cases where a defendant asserts that appellate counsel
failed to raise an issue on direct appeal because the decision of what issues to
raise is one of the most important strategic decisions to be made by appellate
counsel. Id.
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[46] Our supreme court has noted that claims of ineffective assistance of appellate
counsel generally fall into three categories: (1) denial of access to an appeal; (2)
waiver of issues; and (3) failure to present issues well. Id. at 1195. To show that
counsel was ineffective for failing to raise an issue on appeal, the defendant
must overcome the strongest presumption of adequate assistance, and judicial
scrutiny is highly deferential. Id. To evaluate the performance prong when
counsel failed to raise 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. Id. 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.
A. Failure to Claim Ineffective Assistance on Direct Appeal
[47] Beals first briefly argues that his appellate counsel was ineffective for failing to
present on direct appeal his claims of ineffective assistance of trial counsel. We
strongly disagree.
[48] For almost twenty years, our courts have held that post-conviction proceedings
are the preferred forum for adjudicating claims of ineffective assistance of
counsel. Rogers v. State, 897 N.E.2d 955, 964 (Ind. Ct. App. 2008) (citing
McIntire v. State, 717 N.E.2d 96, 101 (Ind. 1999); Woods v. State, 701 N.E.2d
1208, 1219 (Ind. 1998)). Post-conviction proceedings are the preferred forum for
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presenting claims of ineffective assistance because such claims usually require
the development of new facts not present in the trial record. Id. at 964-65 (citing
McIntire, 717 N.E.2d at 101).
[49] Although a defendant is not prohibited from presenting a claim of ineffective
assistance of counsel on direct appeal, if he chooses to do so, claims of
ineffective assistance may not be presented in subsequent post-conviction
proceedings. Id. at 965 (citing McIntire, 717 N.E.2d at 102; Woods, 701 N.E.2d
at 1220). “[T]his rule [should] deter all but the most confident appellants from
asserting any claim of ineffectiveness on direct appeal,” Woods, 701 N.E.2d at
1220, and it is no surprise that claims of ineffective assistance presented on
direct appeal almost always fail. Id. at 1216 (citing United States v. Taglia, 922
F.2d 413, 418 (7th Cir. 1991)).
[50] Thus, Beals’ appellate counsel followed the strongly preferred procedure by not
presenting any claims of ineffective assistance of trial counsel on direct appeal.
Beals’ appellate counsel’s choice was prudent and did not constitute ineffective
assistance.
B. Failure to Claim Insufficient Evidence
[51] Beals also claims that his appellate counsel was ineffective for failing to present
on direct appeal a claim that the evidence was insufficient to support his
convictions for Class B felony robbery while armed with a deadly weapon. Yet
again, Beals claims that the charging information alleged that he used a
“handgun,” defined as a type of “firearm,” which an air-powered BB gun is not.
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However, as noted above, the State did not charge Beals with using a
“handgun” to commit the robberies. Instead, the State alleged that Beals used
“an air-powered BB replica handgun[.]” Direct Appeal App. pp. 31-33. Beals
does not even deny that he used a BB gun in the robberies. He instead simply
argues that the BB gun was not a handgun because it was not a firearm.
However, the State was not required to prove that Beals used a “handgun,” it
was required to prove that he used an air-powered BB replica handgun, and
ample evidence existed to prove this. Specifically, the police found a black BB
gun that was designed to look like a semi-automatic handgun in the lot where
Beals crashed his vehicle, and the witnesses to the robberies testified that the
robber used what appeared to be a black, semi-automatic handgun. Under these
facts and circumstances, Beals’ appellate counsel was not ineffective for failing
to present this meritless claim of insufficient evidence on direct appeal.
C. Admission of the Photo Array
[52] Beals next claims that his appellate counsel was ineffective for failing to claim
on direct appeal that the admission of the photo array was impermissible
because it occurred after he was charged but was done without notification to
Beals or the presence of his counsel. Again, however, Beals’ argument is based
on a flawed legal presumption.
[53] Although the presence of counsel during a physical line-up that occurs after
adversary judicial proceedings have begun is a right, see Parsley v. State, 557
N.E.2d 1331, 1334 (Ind. 1990), no constitutional right to the presence of
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counsel when a witness is shown a photographic array exists. Peterson v. State,
514 N.E.2d 265, 268 (Ind. 1987) (citing United States v. Ash, 413 U.S. 300, 321
(1973) (“We hold, then, that the Sixth Amendment does not grant the right to
counsel at photographic displays conducted by the Government for the purpose
of allowing a witness to attempt an identification of the offender.”)).
[54] Because Beals’ argument with regard to the photographic array is legally
baseless, we cannot fault his appellate counsel for failing to present this
meritless claim on direct appeal.6
III. Directed Verdict
[55] Beals also presents, as a free-standing claim of error, that the trial court should
have, sua sponte, ordered a directed verdict in his favor because the State failed
to prove that the weapon used during the robberies was a handgun. Beals’
argument fails for at least two reasons. First, this is simply yet another attempt
by Beals to claim that the State was required to prove that he used a handgun,
and therefore a firearm, during the robberies. As discussed above, however, the
State did not allege that Beals used a “actual handgun,” but instead alleged that
he used an “air-powered BB replica handgun.”
[56] More importantly, Beals brings this claim as a free-standing claim of error.
However, “[i]n post-conviction proceedings, complaints that something went
awry at trial are generally cognizable only when they show deprivation of the
6
Beals also briefly claims that the cumulative effect of the alleged errors of his counsel require reversal.
However, because we have determined that his counsel’s alleged errors were not errors at all, this argument
fails.
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right to effective counsel or issues demonstrably unavailable at the time of trial
or direct appeal.” Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). Beals makes
no claim that this claim was demonstrably unavailable to him at the time of his
trial or direct appeal. He may not bring it as a free-standing claim of error on
direct appeal. See Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001) (noting
that if an issue is known and available, but not raised on direct appeal, it is
waived for purposes of post-conviction relief and that most free-standing claims
of error are not available in a postconviction proceeding because of the
doctrines of waiver and res judicata).
IV. Failure to Order Transcript of Jury Voir Dire
[57] Beals next argues that the post-conviction court abused its discretion by failing
to deliver to him transcripts of the voir dire of the jury panel. Beals claims that
he repeatedly asked the post-conviction court for the transcript of his trial,
including the voir dire of the jury. Despite this, no transcript of the voir dire was
ever made, and Beals therefore had no access to such a transcript at the post-
conviction proceedings. In denying his petition for post-conviction relief, the
post-conviction court noted that Beals had failed to present the voir dire
transcript as evidence. Beals claims that he was unable to do so because the trial
court never responded to his requests for a transcript of the voir dire.
[58] Beals did request by motion a copy of the record of proceedings of his trial. At
the post-conviction hearing, Beals had a copy of the record of his trial.
However, the record of the trial did not include a transcript of the voir dire of
the jury. See Trial Tr. p. 13 (noting simply “VOIR DIRE” and “JURY
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SELECTED, ALL JURORS IN OPEN COURT”). Although Beals sent a
request to the trial court clerk asking for a copy of the trial record, including the
voir dire, we have found nothing in the record indicating that Beals formally
requested the post-conviction court by motion to order the trial court clerk
prepare a transcript of the voir dire specifically. We therefore cannot say that
the post-conviction court abused its discretion.
[59] Moreover, as noted above, even if we assume that Beals’ recollection of the voir
dire was correct and that juror T.L. indicated that his wife had been the victim
of a robbery, Beals has not demonstrated any prejudice.
V. Retrial on Habitual Offender Enhancement
[60] Lastly, Beals claims that the post-conviction court erred in scheduling a new
trial on the habitual offender adjudication that the post-conviction court
vacated. According to Beals, retrial on the habitual offender adjudication would
constitute impermissible double jeopardy.
[61] Generally, constitutional prohibitions of double jeopardy bar retrial when a
defendant’s conviction is reversed due to insufficient evidence because such a
reversal is tantamount to an acquittal. Dexter v. State, 959 N.E.2d 235, 240 (Ind.
2012) (citing Burks v. United States, 437 U.S. 1, 16-17 (1978)). However, retrial
on a sentencing enhancement based on a prior conviction is permitted even
where the enhancement is reversed because of insufficient evidence. Id. (citing
Monge v. California, 524 U.S. 721, 727-34 (1998); Jaramillo v. State, 823 N.E.2d
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1187, 1191 (Ind. 2005)). Accordingly, no double jeopardy prohibition against
holding a retrial on Beals’ vacated habitual offender adjudication exists.
Conclusion
[62] The post-conviction court did not clearly err in rejecting Beals’ claims of
ineffective assistance of trial and appellate counsel. The trial court did not err in
failing to sua sponte order a directed verdict in favor of Beals. The post-
conviction court did not abuse its discretion by failing to provide Beals with a
transcript of the voir dire. Lastly, Beals’ retrial on the habitual offender
enhancement does not constitute double jeopardy.
[63] Affirmed.
May, J., and Robb, J., concur.
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