MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 15 2015, 8:17 am
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 ATTORNEYS FOR APPELLEE
Cynthia M. Carter Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Samuel Hampton, October 15, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1410-PC-484
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc Rothenberg,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G02-0802-PC-44326
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Samuel Hampton (Hampton), appeals the post-
conviction court’s denial of his petition for post-conviction relief.
[2] We affirm.
ISSUES
[3] Hampton raises four issues on appeal, which we consolidate and restate as the
following two issues:
(1) Whether the post-conviction court erred in denying Hampton’s petition for
post-conviction relief because Hampton was denied effective assistance of
counsel; and
(2) Whether the post-conviction court abused its discretion by declining to
compel specific discovery and by further imposing a protective order to prohibit
Hampton from pursuing certain evidence.
FACTS AND PROCEDURAL HISTORY
[4] The facts most favorable to Hampton’s conviction were set forth in this court’s
opinion in Hampton’s direct appeal as follows:
Around Christmas in 2007, six-year-old J.B. was visiting at the
home of J.B.’s great aunt, Renita Glasco [(Glasco)], and
Hampton, who was Glasco’s boyfriend. At some point during
that visit, while Glasco was sleeping on the couch in the home’s
living room, J.B. went from the living room into a bedroom
where Hampton, who was forty-seven years old, was laying on
the bed wearing a t-shirt and boxer shorts. After J.B. joined
Hampton on the bed, Hampton pulled down J.B.’s underwear.
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Hampton then “put his penis inside [J.B.’s] butt.” Hampton’s
penis felt “hard and greasy,” and Hampton “was shaking it.”
When Hampton’s penis touched J.B., it made J.B. feel “[n]asty.”
Also around Christmas, J.B. told [Mother] that “her behind kind
of hurt . . . her.”
On January 12, 2008, J.B. “came out [of] the blue” and told
Mother that “she had secrets to tell [her].” J.B. told Mother that
Hampton had touched her. Mother then called the police.
On January 14, 2008, Indianapolis Police Detective Genae
Gehring[-Cook] [(Detective Gehring-Cook)], a child abuse
detective, met with Mother and J.B. Detective Gehring[-Cook]
interviewed Mother, and also sat in while Diane Bower[s]
[(Bowers)], who was a child interviewer for the child advocacy
center, interviewed J.B. On February 1, 2008, Detective
Gehring[-Cook] also conducted interviews with Hampton,
Glasco, and Mother’s sister[--Ayesha Rivers (Rivers)].[ 1]
Hampton v. State, 921 N.E.2d 27, 28 (Ind. Ct. App. 2010) (internal citations
omitted), reh’g denied, trans. denied.
[1] On February 22, 2008, the State filed an Information, charging Hampton with
Count I, child molesting, a Class A felony, Ind. Code § 35-42-4-3(a)(1) (2007);
and Count II, child molesting, a Class C felony, I.C. § 35-42-4-3(b) (2007). The
Information alleged that between July 1, 2007, and January 12, 2008, Hampton
performed or submitted to deviate sexual conduct with, as well as fondling or
1
During her interview, Rivers indicated that her own daughter, D.B.—i.e., J.B.’s cousin—had also reported
having been touched inappropriately by Hampton. Following an interview with D.B., Detective Gehring-
Cook elected not to pursue criminal charges, concluding that D.B.’s statements were based on conversations
she had overheard rather than her actual experience.
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touching of, J.B. On March 12, 2008, a Public Defender was appointed to
represent Hampton, and he proceeded to conduct depositions and prepare a
defense. On September 19, 2008, at a hearing where Hampton was represented
by his Public Defender, Hampton, after being informed of his “absolute
constitutional right to[] a trial by jury[,]” declared that he wished to have the
matter decided by a bench trial. (Waiver Hrg. Tr. p. 6). The trial court found
that Hampton “knowingly and intelligently and voluntarily waived his right to
a jury trial.” (Waiver Hrg. Tr. pp. 7-8).
[2] On November 12, 2008, Hampton replaced his Public Defender with Private
Counsel. The day prior to the start of trial, on May 7, 2009, Hampton’s Private
Counsel moved to withdraw, stating that Hampton had fired him and intended
to retain new counsel. A motion for a thirty-day continuance accompanied the
withdrawal motion. That same day, the trial court denied Private Counsel’s
request to withdraw because the new attorney had not yet entered an
appearance on Hampton’s behalf, and—as the case had already been continued
numerous times—the trial court refused to delay the trial any further.
[3] On May 8, 2009, the trial court conducted a bench trial. The State’s case
centered on the testimony of J.B., who stated unequivocally that Hampton “put
his penis inside [her] butt.” (Trial Tr. p. 14). When the State rested its case-in-
chief, Hampton moved for judgment on the evidence, which the trial court
granted as to Count II only. During his case-in-chief, Hampton presented a
defense of actual innocence, arguing that J.B. had fabricated the molestation
allegations after being coached by her mother, Sharon Bryant (Mother), as
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revenge for Hampton’s role in causing Mother to be evicted from an apartment.
At the close of the evidence, the trial court found Hampton guilty of Count I,
child molesting as a Class A felony. In rendering its verdict, the trial court
stated that it found “the victim in this case is [a] very credible, very articulate,
mature young lady who gave explicit details of what [Hampton] did to her.”
(Trial Tr. p. 111). On May 20, 2009, the trial court sentenced Hampton to the
minimum term of twenty years for a Class A felony.
[4] Hampton subsequently declared his intent to appeal his conviction, so the trial
court appointed Appellate Counsel to act on Hampton’s behalf. On direct
appeal, Appellate Counsel argued that the State had presented insufficient
evidence to support Hampton’s conviction, specifically contending that J.B.’s
testimony was incredibly dubious. The State cross-appealed, asserting that the
trial court had imposed an illegal sentence. On February 8, 2010, our court
affirmed Hampton’s conviction and his twenty-year sentence. See Hampton, 921
N.E.2d at 27. Based on the facts before our court, we concluded “that the
testimony of seven-year-old J.B. was not so incredibly dubious or inherently
improbable that no reasonable person could believe it.” Id. at 29.
[5] On January 30, 2012, Hampton filed a pro se petition for post-conviction relief,
and on August 8, 2012, Hampton’s post-conviction attorney filed her
appearance. While investigating grounds for post-conviction relief, Hampton’s
attorney discovered that Hampton’s file did not include a copy of Detective
Gehring-Cook’s February 1, 2008 interview with Rivers. Thus, on May 23,
2013, Hampton filed a non-party request for Rivers’ taped statement and also
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served a subpoena duces tecum on Detective Gehring-Cook for a copy of the
same. On May 31, 2013, Hampton received Rivers’ statement, and after
reviewing it, Hampton’s attorney also discovered that Rivers’ minor son, R.W.
(i.e., J.B.’s cousin), had been scheduled for an interview with Bowers at the
Child Advocacy Center. Accordingly, on June 4, 2013, Hampton filed a non-
party request for the taped statement of R.W, and on June 21, 2013, Hampton
served a subpoena duces tecum on Bowers for a copy of the same.
[6] On July 19, 2013, the State filed a notice of discovery compliance, stating that
it, along with the Child Advocacy Center and the Indianapolis Metropolitan
Police Department, had “made all reasonable efforts to locate the requested
statement[] [of R.W.,] and no such statement has been found[.] Moreover the
State has not found any positive evidence that any such statement was ever
taken.” (Appellant’s App. p. 73). On July 25, 2013, Hampton filed a motion to
schedule an attorneys-only status conference, positing that, “[c]ontrary to the
State’s assertion, there is evidence R.[W].’s statement does exist. It is a
material piece of evidence. If it is missing, then the State should explain what
happened to it.” (Appellant’s App. p. 75). The post-conviction court denied
Hampton’s motion for a status conference on July 30, 2013.
[7] On August 5, 2013, Hampton, by counsel, filed a motion to amend his petition
for post-conviction relief, which the post-conviction court granted on August 8,
2013. In his amended petition, Hampton alleged that the performance of both
his trial and appellate counsel “fell below the reasonable standard of
professional care for an attorney” and that “their mistakes prejudiced the
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outcome of the proceedings because there is a ‘reasonable probability’ of a
different outcome had his counselors performed adequately.” (Appellant’s
App. p. 80).
[8] On August 14, 2013, Hampton filed another verified motion to schedule an
attorneys-only status conference based on his contention that the State was
withholding R.W.’s taped statement. The same day, Hampton also filed a
motion for specific discovery to obtain a copy of R.W.’s statement. On August
22, 2013, the post-conviction court granted Hampton’s request for an attorneys-
only status conference and scheduled the matter for October 18, 2013; however,
the post-conviction court held Hampton’s motion for specific discovery under
advisement pending the State’s response. On September 16, 2013, the State
filed a motion for a protective order, arguing that, despite its formal responses
that it had unsuccessfully made all reasonable efforts to find R.W.’s statement,
Hampton’s counsel “has continued to call, annoy and harass the case detective
and the detective’s supervisors, including insinuating to the detective’s
supervisors[] that the case detective has not competently perform[ed] her job.”
(Appellant’s App. p. 100). Accordingly, the State requested an order
“[p]rotecting it from [Hampton’s] further Motions for Discovery or any further
discovery efforts in this matter, without further order from the [c]ourt.”
(Appellant’s App. p. 100). The post-conviction court granted the State’s motion
for a protective order until the issue could be discussed at the status conference.
[9] At the status conference on October 18, 2013, the State explained to the post-
conviction court that “everyone . . . who potentially could have [R.W.’s
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statement] has made reasonable efforts to find it, all possible reasonable efforts
to find it[,]” but the evidence indicates that the statement does not exist. (PCR
Tr. p. 5). Accordingly, the post-conviction court determined that
as an officer of the court, I believe that [Hampton’s counsel has
made a diligent effort to obtain the statement]. I also as an
officer of the court believe [the prosecuting attorney] when he
says that statement does not exist. Therefore, I’m going to
assume that statement does not exist. I’m also going to instruct
you then to stop pursuing the statement as you’ve been told it
does not exist unless you have some definitive proof that it exists
and [the State is] lying to you, in which case that opens up a
whole nother [sic] can of worms as far as sanctions and such. I’m
going to instruct you to stop pursuing it.
(PCR Tr. p. 7). On November 14, 2013, Hampton filed a Motion to Lift
Protective Order and a Motion to Protect Evidence Against Loss, Alteration,
and Destruction. On November 19, 2013, the post-conviction court denied
Hampton’s motion to lift the protective order, stating,
[Counsel] mischaracterizes court[’]s ruling in her motion. Court
did not order [Counsel] to not seek [d]iscovery in this matter.
Court granted State’s motion for protective order after hearing
evidence that the evidence [Counsel] seeks does not exist. The
court ordered that Counsel not contact witness as the State has
indicated said evidence did not exist. If there is evidence that the
State has purposefully [misled] the court, it should be presented,
otherwise court’s previously granted order stands.
(Appellant’s App. p. 136).
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[10] On April 4, 2014, the post-conviction court conducted a hearing on Hampton’s
petition for post-conviction relief. On September 22, 2014, the post-conviction
court denied Hampton’s petition, supporting its decision with specific findings
of fact and conclusions of law in accordance with Indiana Post-Conviction Rule
1(6). Specifically, the post-conviction court concluded that Hampton failed to
establish that Public Defender, Private Counsel, and Appellate Counsel
provided ineffective assistance of counsel.
[11] Hampton now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[12] Post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Pruitt v.
State, 903 N.E.2d 899, 905 (Ind. 2009), reh’g denied. In a post-conviction
proceeding, the petitioner bears the burden of establishing the grounds for relief
by a preponderance of the evidence. Passwater v. State, 989 N.E.2d 766, 770
(Ind. 2013) (citing Ind. Post-Conviction Rule 1(5)). Because Hampton appeals
from denial of his petition for post-conviction relief, he “stands in the position
of one appealing from a negative judgment.” Id. Therefore, in order to prevail,
Hampton “must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction
court.” Id. On review, we accord no deference to the post-conviction court’s
legal conclusions, and we will reverse the post-conviction court’s findings and
judgment “only upon a showing of clear error—that which leaves us with a
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definite and firm conviction that a mistake has been made.” Id. (quoting Ben-
Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), reh’g denied; cert. denied, 534
U.S. 830 (2001)).
II. Ineffective Assistance of Counsel
[13] Hampton claims that his conviction must be vacated because he received
ineffective assistance of both trial and appellate counsel. A claim of ineffective
assistance of counsel is premised on the Sixth Amendment to the United States
Constitution, which provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e.” At
the outset, we note that “‘counsel’s performance is presumed effective, and a
defendant must offer strong and convincing evidence to overcome this
presumption.’” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013)
(quoting Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002)), reh’g denied, trans.
denied. To satisfy this burden, the United States Supreme Court has articulated
a two-prong test for establishing ineffective assistance of counsel. See Strickland
v. Washington, 466 U.S. 668 (1984), reh’g denied. The two prongs of the
Strickland test “present independent inquiries, either of which may be sufficient
for disposing of a claim.” State v. McManus, 868 N.E.2d 778, 790 (Ind. 2007),
reh’g denied; cert. denied, 552 U.S. 1298 (2008).
[14] First, under Strickland, “a defendant must show that counsel’s performance was
deficient.” Passwater, 989 N.E.2d at 770 (citing Strickland, 466 U.S. at 687).
This prong requires the defendant to demonstrate “that counsel’s representation
fell below an objective standard of reasonableness and that counsel made errors
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so serious that counsel was not functioning as ‘counsel’ guaranteed to the
defendant by the Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 687).
“Second, a defendant must show that the deficient performance prejudiced the
defense.” Id. (citing Strickland, 466 U.S. at 687). For counsel’s performance to
be prejudicial, the errors must have been “so serious as to deprive the defendant
of a fair trial, meaning a trial whose result is reliable.” Id. (citing Strickland, 466
U.S. at 687). A defendant establishes prejudice by showing “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at
694). “A reasonable probability is one that is sufficient to undermine
confidence in the outcome.” Id. (citing Strickland, 466 U.S. at 694).
A. Ineffective Assistance of Trial Counsel: Public Defender
[15] Hampton first claims that the post-conviction court erroneously denied his
petition for post-conviction relief because Public Defender’s “performance
violated the Sixth Amendment right to effective counsel and the Fourteenth
Amendment right to a fair trial.” (Appellant’s Br. p. 14). More specifically,
Hampton argues that Public Defender “failed to develop a theory of the case;
investigate the case; talk to key witnesses; preserve [Hampton’s] right to trial by
jury of his peers; consult experts; and provide proper representation at the child
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hearsay hearing.” (Appellant’s Br. p. 14). We will address each purported
error in turn. 2
1. Failure to Develop a Theory of the Case
[16] Hampton first asserts that Public Defender “failed to develop a ‘theory of the
case.’” (Appellant’s Br. p. 14). The post-conviction court concluded that
Hampton’s trial counsel acted reasonably by basing the defense on a theory of
actual innocence, and our review of the record reveals that Hampton has
steadfastly maintained his innocence throughout this case. On appeal,
Hampton insists that a “bald assertion of innocence” was insufficient “to tell
the story to the fact-finder and convince the fact-finder”; rather, Public
Defender should have “put forth the facts which formed the foundation of the
defense.” (Appellant’s Br. p. 15). We note that Public Defender represented
Hampton prior to the bench trial—from March 12, 2008, until November 12,
2008. Thus, while he conducted depositions and began preparing the case for
trial, Public Defender did not present the case to the fact-finder because he was
represented by private counsel and, therefore, could not have been ineffective in
such a respect.
2
Hampton has not developed a cogent argument regarding his contention that Public Defender was
ineffective by failing to consult experts; therefore, we find that he has waived this issue for appellate review.
See Ind. Appellate Rule 46(A)(8)(a).
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2. Failure to Investigate and Talk to Key Witnesses/Failure to Provide Adequate
Representation at Child Hearsay Hearing
[17] Hampton next alleges that Public Defender was deficient by failing to
investigate the case and talk to key witnesses. To establish a “failure to
investigate as a ground for ineffective assistance of counsel requires going
beyond the trial record to show what investigation, if undertaken, would have
produced.” McKnight v. State, 1 N.E.3d 193, 201 (Ind. Ct. App. 2013) (citing
Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), reh’g denied; cert. denied, 528
U.S. 861 (1999)). “This is necessary because success on the prejudice prong of
an ineffectiveness claim requires a showing of a reasonable probability of
affecting the result.” Id. (quoting Woods, 701 N.E.2d at 1214).
[18] Here, the post-conviction court found that Public Defender’s “investigation of
the case was sufficient” as he conducted depositions of several State witnesses,
and Hampton failed to demonstrate how further investigation would have
resulted in his acquittal. (Appellant’s App. p. 198). In turn, Hampton argues
that Bowers, the forensic interviewer who conducted J.B.’s interview at the
Child Advocacy Center, “was an essential witness for the child hearsay
hearing[,]” but Public Defender “spontaneously decided to stipulate to the
admission of the videotape of the January 18, 2008 interview.” (Appellant’s Br.
p. 15). Hampton posits that “[t]here was no strategic reason” behind Public
Defender’s failure to interview or depose Bowers or subject her to cross-
examination at the child hearsay hearing. (Appellant’s Br. p. 15).
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[19] Hampton’s appellate brief is devoid of any cogent argument regarding what
Public Defender would have discovered by interviewing Bowers or how it
would have affected the outcome of his case. Instead, he cursorily suggests that
because “the child witness may have been ‘coached’ it [was] imperative to show
how such coaching (either deliberate or inadvertent) could happen.”
(Appellant’s Br. p. 17). While Public Defender stipulated to the admission of
J.B.’s interview for purposes of the child hearsay hearing only, J.B.’s recorded
statements were not admitted during the bench trial, and Bowers did not testify.
Rather, the State presented evidence of J.B.’s allegations against Hampton
through J.B.’s direct testimony, which the trial court explicitly found to be
credible. Moreover, although Hampton called Bowers to testify at the post-
conviction hearing, he did not question her regarding the content of J.B.’s
videotaped interview or her impressions thereof—i.e., whether there was
“[e]vidence of coaching.” (Appellant’s Reply Br. p. 3). Accordingly, we cannot
say that Public Defender’s decision to stipulate to the videotaped interview at
the child hearsay hearing without interviewing, deposing, or cross-examining
Bowers was deficient, let alone prejudicial to the outcome of Hampton’s case.
3. Waiver of Right to Jury Trial
[20] Hampton concedes that he knowingly, intelligently, and voluntarily waived his
right to a jury trial as the post-conviction court determined, but “he does not
know why his [P]ublic [D]efender would have recommended this tack.”
(Appellant’s Br. p. 16). According to Hampton, Public Defender “was remiss
in recommending waiving such an important and fundamental right given the
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circumstances and what was at stake.” (Appellant’s Br. pp. 16-17). However,
Hampton does not expand his argument to explain how his informed decision
to proceed with a bench trial rather than a jury trial constituted ineffective
assistance.
[21] Our supreme court has previously found that waiving a jury trial is part of an
attorney’s strategic decision-making discretion. See Coleman v. State, 694 N.E.2d
269, 276 (Ind. 1998). “On appeal, we do not second guess counsel’s strategic
decisions requiring reasonable professional judgment even if the strategy or
tactic, in hindsight, did not best serve the defendant’s interests.” Elisea v. State,
777 N.E.2d 46, 50 (Ind. Ct. App. 2002). Public Defender did not testify during
the post-conviction hearing; instead, he submitted an affidavit to the post-
conviction court stating that he did “not have any independent recollection of
strategic decisions made in this case or the evidence in this case and would
defer to what is recorded in the file.” (Appellant’s App. p. 223). Nevertheless,
“courts should not insist that attorneys ‘confirm every aspect of the strategic
basis for his or her actions.’” Hinesley, 999 N.E.2d at 985 (quoting Harrington v.
Richter, 562 U.S. 86, 109 (2011)). Hampton bears the burden of showing that
Public Defender’s performance was deficient, and because he presented no
evidence pertaining to the advice he received from Public Defender as to why a
bench trial would be more suitable for the facts of this case than a jury trial, we
will not disturb the post-conviction court’s finding that Public Defender was not
ineffective by making a “strategic decision to waive the jury trial.” (Appellant’s
App. p. 200).
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B. Ineffective Assistance of Trial Counsel: Private Counsel
[22] Second, Hampton claims that the post-conviction court clearly erred in denying
his post-conviction relief petition because of the ineffective representation
provided by Private Counsel. Similar to the allegations of ineffectiveness raised
with respect to Public Defender, Hampton contends that Private Counsel
“failed to investigate the case and talk to key witnesses, preserve [Hampton’s]
right to trial by jury of his peers, consult experts, and provide proper
representation at the bench trial and sentencing hearing.” (Appellant’s Br. p.
18). We will again address each purported error in turn.
1. Failure to Investigate the Case and Talk to Key Witnesses
[23] Without providing any context or a cogent argument, Hampton vaguely asserts
that Private Counsel “failed to investigate the case and talk to key witnesses” by
not speaking with Bowers; by not taking any additional statements subsequent
to Public Defender’s depositions; by not remembering Rivers’ role in the case or
“the substance of what she would have testified to”; and by presenting only two
witnesses during Hampton’s case-in-chief. (Appellant’s Br. p. 18). The post-
conviction court determined that Hampton’s
claim that [Private Counsel] also failed to investigate the case to
the level of ineffectiveness also is found to be without merit.
While the depositions were completed by the time [Private
Counsel] took the case over, he stated that he familiarized
himself with the file from [Public Defender], and prepared a
witness list, and based on speaking to his client, the witnesses,
and reviewing the file, was able to develop a theory of the case.
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(Appellant’s App. p. 198).
[24] “The Strickland ineffective assistance of counsel standard ‘require[s] no special
amplification in order to define counsel’s duty to investigate.’” Wilkes v. State,
984 N.E.2d 1236, 1241 (Ind. 2013) (quoting Strickland, 466 U.S. at 690). “In
any effectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure
of deference to counsel’s judgments.” Strickland, 466 U.S. at 691. Based on
Hampton’s perfunctory argument, we discern no basis for reversing the post-
conviction court’s finding that Private Counsel rendered effective assistance of
counsel with respect to the investigation of the case.
2. Waiver of Right to Jury Trial
[25] Hampton next contends that Private Counsel provided ineffective assistance of
counsel because he “discarded the idea of recommending a withdrawal of the
jury trial waiver because he felt it would be ‘insurmountable.’” (Appellant’s Br.
p. 19). However, Hampton does not develop his argument any further to
articulate how Private Counsel was deficient or how the decision to proceed
with a bench trial prejudiced Hampton. As a result, we find that he has waived
this issue for appellate review. See App. R. 46(A)(8)(a).
3. Consultation of Experts and Other Materials
[26] Hampton also asserts that Private Counsel was ineffective because he failed to
consult any experts in this case, attend Continuing Legal Education (CLE)
courses, or read any books about child hearsay issues. According to Hampton,
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“[y]ounger children (those aged six and younger) are especially prone to
suggested memories, especially with ‘suggestive interviews.’” (Appellant’s Br.
p. 27). During the bench trial, Private Counsel argued that Mother coached
J.B.’s allegations, as evidenced by the fact that J.B.
clearly used words that were not age suitable and she obviously
learned those from somebody else and I’m guessing whoever
taught her those words, all of a sudden what she referred to as a
dick [during the child interview] is now a penis [at trial], and
somebody [has] been talking to her, the child said she’d been
talked to—she went over her testimony before the trial and we
heard evidence that she went over and talked about what she was
going to say before the hearing on the child [h]earsay [s]tatute
and before her deposition[.] [Mother] indicated in her deposition
that she talked all morning, all afternoon or all day, something
like that, the day before, and then the morning of, one of these
statements, so clearly the child’s been talked to.
(Trial Tr. p. 106). Hampton now argues that “[P]rivate [C]ounsel did not come
up with a plausible reason how the words ‘were suggested’” and should have
consulted an expert, reviewed treatises, or attended CLE courses in order “to
support his haphazard conclusions.” (Appellant’s Br. p. 27).
[27] At the post-conviction hearing, Private Counsel testified that he reviewed
statutes and case law pertaining to child hearsay issues in preparation for the
trial. On appeal, Hampton does not articulate how any particular expert,
treatise, or CLE course would have convinced the trial court that J.B.’s
testimony was unreliable. During the post-conviction hearing, Hampton
presented no evidence from any expert to specifically demonstrate that J.B. had,
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in fact, been coached. Hampton also contends that Private Counsel should
have called Bowers to testify at the bench trial “because the [forensic child]
interview itself contained the evidence necessary for supporting the claim of
implanted memories”; yet, he asked no questions of Bowers at the post-
conviction hearing to support this claim. (Appellant’s Br. p. 27). As such, “[i]t
is at best wholly speculative” that the testimony of Bowers or any other expert
“would have affected the outcome of the trial.” Harrison v. State, 707 N.E.2d
767, 779 (Ind. 1999), reh’g denied; cert. denied, 529 U.S. 1088 (2000).
[28] Moreover, at the bench trial, Detective Gehring-Cook testified that, during her
five years as a child abuse detective, she had worked on at least 125 child abuse
cases and participated in numerous interviews, and she observed Bowers’
interview with J.B. Based on her experience, Detective Gehring-Cook testified
that “it’s very common” for children to change the terminology they use for
different body parts, and often “the child is unable to give an exact date [of the
incident] . . . not because of them being smart or dumb or anything like that, it’s
just an age [in]appropriate question and they’re not able to answer that type of a
question.” (Trial Tr. pp. 50, 60). During cross-examination, Private Counsel
delved into the defense’s theory that J.B.’s allegations had been coached by
Mother, but Detective Gehring-Cook disagreed, stating:
It’s very difficult to coach [children] when they come up with
details, a lot of parents when a child is coached they’re able to
say like, well, yeah, he molested me or he raped me or
something. But they can’t go into the details, the finer details of
describing things[] that would be not normally known to a seven
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year old, such as . . . the victim said in this [case], the greasiness
of [Hampton’s] penis.
(Trial Tr. p. 62). In a further attempt to demonstrate that Mother had
inappropriately influenced J.B., Private Counsel asked if it was “kind of
unusual for a child of [J.B.’s] age” to be using the word “dick.” (Trial Tr. p.
64). Again, Detective Gehring-Cook responded that there was nothing
suspicious about the language utilized by J.B. as she has
heard everything from dick, penis, cock, twigs and berries from
kids from ages from three and up. They use all different words
and who knows where they pick them up. You know, the guy—
the kid that did—with twigs and berries he picked it up from a
movie, whatever—Austin Powers, you know, kids pick it up,
they hear different words.
(Trial Tr. pp. 64-65). As the trial court could have relied on Detective Gehring-
Cook’s testimony even if presented with hypothetical contradictory evidence,
we cannot say that there is a reasonable probability of a different outcome.
4. Failure to Provide Adequate Representation at Bench Trial
[29] Finally, Hampton contends that Private Counsel “failed to professionally
represent Hampton” at the bench trial. (Appellant’s Br. p. 19). Private Counsel
confirmed at the post-conviction hearing that Hampton “vehemently denied the
allegations” so his defense strategy was based on a theory of innocence. (PCR
Tr. p. 39). Also, Private Counsel recalled that “there may have been
motivation” for Mother to coach J.B. into fabricating the allegations as a means
of retaliating against Hampton. (PCR Tr. p. 39). Hampton now insists that
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“[i]f [Private Counsel] truly believed Hampton was innocent, then he needed to
show the trial court how the State’s witness’s allegations were implausible and
why and how the defense’s theory of the case was sound.” (Appellant’s Br. p.
20). Hampton further contends that “the [r]ecord makes clear [P]rivate
[C]ounsel did not have his basic facts straight, was unprepared for trial, and
failed to use the factual and legal tools which were readily available to him.”
(Appellant’s Br. p. 20) (footnote omitted). 3
[30] During the bench trial, Hampton testified that prior to J.B.’s allegations, Glasco
had co-signed a lease on a one-bedroom apartment for Rivers and her children.
At some point unbeknownst to Hampton and Glasco, Mother, along with her
boyfriend and J.B., moved into Rivers’ apartment. In November or December
of 2007, Hampton explained that they got a phone call in the middle of the
night from Rivers, who was irate about all of the extra people living in her
apartment. Hampton stated that he was concerned that Rivers would be
evicted, so he told Mother that she (along with her boyfriend and J.B.) needed
3
Rather than relying on authoritative citations to demonstrate that Private Counsel’s performance was
deficient, Hampton cites to Wikipedia and posits that “[t]he Kipling Method of investigation” makes it
“painfully clear” that Private Counsel “was hopelessly asea [sic] when Hampton most needed counsel’s
guidance and help.” (Appellant’s Br. p. 20 & n.4). We find no merit in this argument. Furthermore, to the
extent that Hampton merely identifies evidence not relied upon at trial—i.e., D.B.’s child interview; discusses
testimony that is contrary to Hampton’s—i.e., Mother’s statements that she did not have any ill-will about
being evicted from an apartment; and notes instances of mistaken factual references—i.e., Private Counsel
indicating that the molestation occurred in 2008 rather than 2007 and Detective Gehring-Cook’s substitution
of Rivers for Glasco in discussing the layout of Glasco and Hampton’s home, we find that he has waived the
issue for appellate review because he has not developed a cogent, well-cited argument that Private Counsel’s
performance was inadequate and prejudiced the outcome of his case. See App. R. 46(A)(8)(a). For the same
reason, we do not address Hampton’s footnoted claim that Private Counsel’s “deficient performance is
evident” based on his attempt to withdraw on the eve of the bench trial and that his only conversation with
Glasco was an attempt to convince Hampton to accept a plea agreement. (Appellant’s Br. p. 20).
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to vacate the apartment or he would call the police. According to Hampton, his
threat to call the police if Mother did not move out of Rivers’ apartment
angered Mother and caused her to seek revenge. However, because Hampton’s
testimony could have been “easily discard[ed] as ‘self-serving[,]’” Hampton
posits that “Glasco’s testimony was crucial” to demonstrate that Mother had a
motive for fabricating allegations through J.B. (Appellant’s Br. p. 21). Yet,
Glasco did not appear at the bench trial to testify, so Hampton contends that
Private Counsel was ineffective for failing to subpoena her.
[31] It is well established that “a decision regarding what witnesses to call is a matter
of trial strategy which an appellate court will not second-guess.” Curtis v. State,
905 N.E.2d 410, 415 (Ind. Ct. App. 2009), trans. denied. As early as March 26,
2008, Glasco was identified as a witness on the defense’s witness list. Glasco
and Hampton had been in a relationship for nearly two decades; they lived
together and maintained their relationship despite J.B.’s allegations. During the
post-conviction hearing, Private Counsel testified that Glasco “indicated
definitely a willingness to show up at trial[,]” so Private Counsel “was surprised
when she didn’t show up.” (PCR Tr. pp. 35, 41). Although the nature of her
relationship with Hampton indicates that Glasco would have appeared
voluntarily at his trial, the burden is nevertheless on the defendant to “insur[e]
that witnesses who may aid in his or her defense are called.” Montgomery v.
State, 804 N.E.2d 1217, 1221 (Ind. Ct. App. 2004), trans. denied. At the post-
conviction hearing, Private Counsel could not recall “what she would have
testified to,” but as it is evident that Private Counsel intended to use Glasco’s
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testimony to aid in Hampton’s defense, his failure to secure her presence at trial
constitutes deficient performance. (PCR Tr. p. 41). See Montgomery, 804
N.E.2d at 1221 (finding trial counsel’s failure to subpoena two of the State’s
expert witnesses, or request a continuance after the State did not call them, was
deficient, and the defendant was prejudiced because “in what became
essentially a ‘battle of experts,’ corroborating expert testimony would have been
particularly powerful”).
[32] Nonetheless, the post-conviction court determined that “from her testimony at
the evidentiary hearing[,] it is apparent that Ms. Glasco’s putative testimony at
most would have been cumulative to testimony provided by [Hampton]
himself. Therefore based on the available record, . . . Hampton has failed to
establish that he was prejudiced by [Glasco’s] absence from the trial.”
(Appellant’s App. p. 201). In particular, Glasco explained that she could have
corroborated Hampton’s assertion that he wears brief-style underwear—not
boxer shorts as J.B. alleged. Also, during the trial, the State presented a
statement from Hampton that he had purchased a bike for J.B. as a Christmas
present in 2007 in order to discredit Hampton’s contention that he had a
significant falling out with J.B.’s Mother in November of 2007. Glasco stated
that she could have testified that, although Hampton contributed some money
for the bicycle, she actually went to the store and picked it out. Additionally,
Hampton points to Glasco’s deposition, in which she corroborates Hampton’s
claim that J.B. was not at their home around Christmas-time when the
molestation allegedly occurred.
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[33] We agree with the post-conviction court that Hampton has not demonstrated
that Glasco’s testimony would have altered the outcome of the case. The trial
court unequivocally stated that it did not find Hampton’s testimony credible
“based on his demeanor and his inability to answer questions directly and
actually just his whole personal demeanor as he testified to the extent that
[Private Counsel] says that it’s one witness’s word against the others. I
certainly find beyond a reasonable doubt that the victim in this case is credible.”
(Trial Tr. pp. 111-12). Furthermore, the trial court found that “the events that
[Hampton] said caused this all alleged fabrication occurred, prior to him, at
least at a minimum giving money to purchase a bicycle, I mean—so it just
doesn’t make sense to me.” (Trial Tr. p. 111). Thus, we cannot say that there
is a reasonable probability that Glasco’s testimony about the boxer shorts and
the bicycle would have caused the trial court to entirely discredit J.B.’s
testimony.
[34] Hampton also attacks Private Counsel’s performance for failing to vigorously
impeach J.B. with her previous statements. However, the post-conviction court
concluded that Private Counsel provided reasonably effective assistance as he
extensively cross-examined the victim regarding her memory of
the crimes, various factual inconsistencies and also regarding her
and her [M]other’s motives for lying. Despite [Private Counsel]
having highlighted what he viewed as problem areas, the court
specifically found the victim to be credible, and it is difficult to
see how addressing other specific issues would have provided the
victim anything other than additional opportunities to reiterate
her story.
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(Appellant’s App. pp. 202-03). Throughout her child interview, deposition, the
child hearsay hearing, and the bench trial, J.B. did not waver in her allegation
that Hampton put his penis inside her butt. At the beginning of the bench trial,
J.B. indicated knowing the difference between a truth and a lie and answered
that the consequence of lying in court is that “[y]ou will go to jail.” (Trial Tr. p.
12). During cross-examination, Private Counsel attempted to establish that
Mother coached J.B.’s story, but when specifically asked what Mother told her
to say, J.B. answered, “She told me to tell the truth.” (Trial Tr. p. 24).
[35] Hampton now argues that, during her deposition, J.B. “recanted her allegation
and said she was ‘making it up[,]’” and Private Counsel should have presented
this “outright admission of fabrication” during the trial. (Appellant’s Br. p. 28).
Rather than following Hampton’s lead of excerpting one line from J.B.’s
deposition, we look to the statement in its full context:
Q. Well, let me ask you, I just want to make sure that you’re
telling the truth. You’re not—are you making any of this up,
[J.B.], or is it all—did it all really happen?
A. I’m making it up.
Q. You’re making the whole thing up?
A. Well, it really happened.
Q. It really happened. Okay. But are you telling the truth?
A. Yes.
(Appellant’s Exh. B-2). From this colloquy, it could easily be concluded that
J.B. was confused by the language of the question rather than that she was
recanting her allegation. Thus, it was certainly reasonable for Private Counsel
to elect not to impeach J.B. with this specific testimony. See Slusher v. State, 823
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N.E.2d 1219, 1221 (Ind. Ct. App. 2005) (Our court “‘will not speculate as to
what may or may not have been advantageous trial strategy as counsel should
be given deference in choosing a trial strategy which, at the time and under the
circumstances, seems best.’”) (quoting Whitener v. State, 696 N.E.2d 40, 42 (Ind.
1998)). 4
C. Ineffective Assistance of Appellate Counsel
[36] Third, Hampton claims that the post-conviction court erred in denying his
petition for post-conviction relief because Appellate Counsel rendered
ineffective assistance of counsel. “The standard of review for a claim of
ineffective assistance of appellate counsel is the same as for trial counsel.” Ben-
Yisrayl, 729 N.E.2d at 106. In general, ineffective assistance claims at the
appellate level “fall into three basic categories: (1) denial of access to an appeal,
(2) waiver of issues, and (3) failure to present issues well.” Ritchie v. State, 875
N.E.2d 706, 723 (Ind. 2007), reh’g denied.
[37] Rather than relying on any of the three recognized categories, Hampton
contends that Appellate Counsel was ineffective by not invoking the
Davis/Hatton procedure in light of the mistakes made by Public Defender and
Private Counsel, and “[f]oregoing the procedure left [A]ppellate [C]ounsel with
4
Similarly, Hampton also points to testimony from Mother’s deposition indicating that J.B. had problems
lying to her teacher and argues that “[n]o reasonably proficient attorney would fail to use such evidence at
trial.” (Appellant’s Br. pp. 28-29). We first note that, again, Hampton has failed to provide the full context
of Mother’s statement, which actually states that J.B. developed several problems at school after reporting the
molestation. Second, a review of the transcript confirms that Private Counsel did, in fact, extensively
question Mother during the bench trial about this line from her deposition.
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an impaired sufficiency argument.” (Appellant’s Br. p. 31). The post-
conviction court found Hampton’s claim meritless “because of the [c]ourt’s
ruling regarding the effectiveness of his trial counsel. Since, as the [c]ourt has
found, Hampton’s trial counsel was not ineffective, it follows that Hampton’s
[A]ppellate [C]ounsel was not ineffective for failing to develop a more complete
record.” (Appellant’s App. p. 204).
[38] Sometimes, in order to establish “substandard counsel performance” where
issues “are not visible at all on the face of the trial record,” additional
investigation is necessary. Slusher, 823 N.E.2d at 1221-22. Thus, the
Davis/Hatton procedure allows for “a termination or suspension of a direct
appeal already initiated, upon appellate counsel’s motion for remand or stay, to
allow a postconviction relief petition to be pursued in the trial court.” State v.
Lopez, 676 N.E.2d 1063, 1069 (Ind. Ct. App. 1997), trans. denied. Subsequent to
a full evidentiary hearing, if the petition for post-conviction relief is denied, “the
appeal can be reinitiated.” Id. Along with the issues initially raised in the
appeal, the issues litigated in the post-conviction relief proceeding may also be
raised. Id. By utilizing this procedure, “a full hearing and record on the issue
will be included in the appeal”; whereas, appellate counsel would otherwise be
“forced to rely solely on the trial record.” Id.
[39] “We are highly deferential to [A]ppellate [C]ounsel’s decisions in deciding what
issues to raise on direct appeal.” Graham v. State, 941 N.E.2d 1091, 1099 (Ind.
Ct. App. 2011), aff’d on reh’g. Here, Appellate Counsel submitted an affidavit to
the post-conviction court, averring that the record in Hampton’s case “was very
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sparse, and there was not much else to raise in the appeal other than
sufficiency.” (Appellant’s App. p. 224). He further stated that he is “well-
acquainted with the Davis/Hatton procedure (having worked for the Indiana
Public Defender’s office),” and although he did not specifically recall making
the choice to forego the Davis/Hatton procedure, he “normally do[es] not use it
and in general think[s] it is best to leave these issues to be hashed out in a post-
conviction proceeding.” (Appellant’s App. p. 224). According to Hampton,
our court rejected Appellate Counsel’s incredibly dubious testimony argument
on direct appeal, but if Appellate Counsel had expanded the record using the
Davis/Hatton procedure, “there is a reasonable probability the outcome of the
direct appeal would have been decided in Hampton’s favor.” (Appellant’s Br.
p. 31). Although it is not quite clear, Hampton appears to argue that if
Appellate Counsel had accessed J.B.’s deposition, he could have successfully
argued that her “testimony regarding the molestation was inherently
contradictory or equivocal.” (Appellant’s Br. p. 31) (quoting Hampton, 921
N.E.2d at 29).
[40] This court has previously found that “[i]n determining whether appellate
counsel’s performance was deficient, we consider the information available in
the trial record or otherwise known to appellate counsel. The role of appellate
counsel should not be measured by information unknown to appellate counsel
but later developed after the appeal by post-conviction counsel.” Seeley v. State,
782 N.E.2d 1052, 1059 (Ind. Ct. App.) (internal citations omitted), trans. denied;
cert. denied, 540 U.S. 1020 (2003). Furthermore, notwithstanding what
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additional information Appellate Counsel may have garnered by suspending the
appeal to pursue a post-conviction relief petition, we are not persuaded by
Hampton’s argument that the outcome of his appeal would have been any
different. As we previously stated, J.B.’s statement in her deposition that “I’m
making it up”—when read in context with her subsequent clarification that “it
really happened” and that she was telling the truth does not establish that her
testimony at the bench trial was incredibly dubious. (Appellant’s Exh. B-2).
Therefore, we find that Appellate Counsel did not render ineffective assistance
of counsel by electing not to utilize the Davis/Hatton procedure.
III. Post-Conviction Discovery
[41] Finally, Hampton claims that the post-conviction court abused its discretion by
failing to order specific discovery and by imposing a protective order against
Hampton’s post-conviction counsel with respect to her efforts to obtain R.W.’s
taped interview. In post-conviction proceedings, “[a]ll rules and statutes
applicable in civil proceedings including pre-trial and discovery procedures are
available to the parties.” P-C.R. 1(5). In general, “[p]arties may obtain
discovery regarding any matter, not privileged, which is relevant to the subject-
matter involved in the pending action.” Ind. Trial Rule 26(B)(1). Like trial
courts, “post-conviction courts are given wide discretion in discovery matters
and ‘in determining what constitutes substantial compliance with discovery
orders, and we will affirm their determinations as to violations and sanctions
absent clear error and resulting prejudice.’” McManus, 868 N.E.2d at 790
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(quoting Dye v. State, 717 N.E.2d 5, 10-11 (Ind. 1999), reh’g denied; cert. denied,
531 U.S. 957 (2000)).
[42] Pursuant to Indiana Trial Rule 34(A)(1), “[a]ny party may serve on any other
party a request . . . to produce and permit the party making the request . . . to
inspect and copy[] any designated documents or electronically stored
information . . . which are in the possession, custody or control of the party upon whom
the request is served” (emphasis added). The discovery rules additionally provide
that “[u]pon motion by any party . . . and for good cause shown,” the court
“may make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,”
including, in part, “that the discovery not be had[,] . . . that certain matters not
be inquired into, or that the scope of the discovery be limited to certain
matters.” T.R. 26(C)(1),(4). In this case, despite the State’s assurances that it
did not possess, and was unaware of the existence of, Bowers’ taped interview
with R.W., Hampton continued to demand the evidence from Detective
Gehring-Cook and others. As a result, the post-conviction court granted the
State’s request for a protective order to instruct Hampton to stop pursing the
statement. Hampton now contends that
[t]he defense was hamstringed by the protective order, and given
the fact Hampton’s theory of defense was Glasco’s family sought
to exact revenge upon him due to the falling out over the
apartment, the evidence was relevant and discoverable. To deny
Hampton the evidence was unfair, and it should have been
discovered in the first place before the May 8, 2009 bench trial.
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(Appellant’s Br. p. 36).
[43] At the post-conviction hearing, Bowers reviewed an intake form from the Child
Advocacy Center that she had prepared, which indicated that R.W. was pre-
scheduled for an interview on January 18, 2008—the same day as her
interviews with J.B. and D.B. The referral information on the intake form
provided simply that “[R.W.’s] sister alleges [Hampton] had touched her. [The
Department of Child Services (DCS)] needs [R.W.] interviewed, too.”
(Appellant’s App. p. 501). Thus, Bowers testified that she personally
interviewed R.W., and she wrote “N.D.” on R.W.’s intake form to denote that
R.W. did not disclose any abuse. (Appellant’s App. p. 501). Bowers further
testified that the taped interviews of J.B. and D.B. were given to Detective
Gehring-Cook, whereas R.W.’s interview was provided to a DCS family case
manager, Lucita Exom-Pope (FCM Exom-Pope), because R.W. did not make
any allegations of abuse.
[44] Nonetheless, there is also evidence that although R.W. was scheduled to be
interviewed, the interview may never have actually occurred. During Bowers’
interview with Rivers’ daughter, D.B. (who is R.W.’s younger sister and J.B.’s
cousin), Bowers inquired as to why R.W. did not accompany D.B. to the
interview. D.B. answered that R.W. was at school. Also that day, while
speaking to Rivers, Bowers indicated that DCS still needed to interview R.W.
Rivers indicated that she “thought [she] just needed [D.B.] here” or she “would
have kept [R.W.] out of school.” (Appellant’s Exh. I). In addition, Hampton
submitted an affidavit of FCM Exom-Pope at the post-conviction hearing, who
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averred that “DCS has no electronic or written records of reports or notes
pertaining to any of the other children regarding the [J.B.] investigation, that
have not been provided to [Hampton’s post-conviction attorney], including the
children [D.B.] and [R.W.].” (Appellant’s App. p. 476). Detective Gehring-
Cook testified at the post-conviction hearing that she did not interview R.W.,
nor did she recall that any children other than J.B. and D.B. were interviewed
by Bowers. There is no evidence that R.W.’s interview was rescheduled for a
later date.
[45] The State is only capable of discovering evidence that is in its “possession,
custody or control.” T.R. 34(A)(1). Our deference to the trial court’s credibility
determinations is well established, and in this case, the trial court believed the
State’s claim that it “made all reasonable efforts to locate the requested
statement, and no such statement has been found[.] Moreover the State has not
found any positive evidence that any such statement was ever taken.”
(Appellant’s App. p. 73). Accordingly, we cannot say that the trial court
abused its discretion by granting the State’s protective order and by not
compelling specific discovery.
CONCLUSION
[46] Based on the foregoing, we conclude that the post-conviction court properly
denied Hampton’s petition for post-conviction relief because he received
adequate assistance of counsel at both the trial and appellate level. We further
conclude that the post-conviction court acted within its discretion concerning
the parties’ discovery dispute over R.W.’s alleged statement.
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[47] Affirmed.
[48] Vaidik, C. J. and Brown, J. concur
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