MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 09 2016, 6:07 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew McKinnon, June 9, 2016
Appellant-Defendant, Court of Appeals Case No.
71A04-1509-PC-1394
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff. Marnocha, Judge
Trial Court Cause No.
71D02-1304-PC-9
Altice, Judge.
Case Summary
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[1] Matthew McKinnon appeals from the denial of his petition for post-conviction
relief (PCR petition). On appeal, he asserts that the post-conviction court erred
in rejecting his claim of ineffective assistance of trial counsel.
[2] We affirm.
Facts & Procedural History
[3] The facts underlying McKinnon’s conviction were set forth by this court in an
unpublished memorandum decision on direct appeal as follows: “On
November 24, 2004, several witnesses saw McKinnon shoot Brian Pope, Jr. at a
house on Corby Street in South Bend. Pope died as a result of the shooting.”
McKinnon v. State, 71A03-0602-CR-70, slip op. at 2 (Ind. Ct. App. July 27,
2006). The State charged McKinnon with murder on December 1, 2004, and a
public defender was appointed to represent him.
[4] A three-day jury trial commenced on October 11, 2005. McKinnon’s trial
counsel elected not to give an opening statement. During the State’s case-in-
chief, two witnesses identified McKinnon as the shooter and a third witness
testified that McKinnon told him while in jail together that he killed the victim.
McKinnon’s defense was comprised of testimony from one witness who
claimed McKinnon was not present at the time of the shooting. McKinnon
ultimately chose not to testify as to his whereabouts. During closing argument,
McKinnon’s trial counsel argued that the State’s witnesses were lying, pointed
out inconsistencies in the evidence, and relied on the testimony that McKinnon
was not present. The jury found McKinnon guilty as charged. The trial court
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subsequently entered judgment of conviction and sentenced him to fifty-seven
years imprisonment. In a direct appeal to this court, McKinnon argued only
that the trial court abused its discretion in denying his motion for mistrial. This
court rejected McKinnon’s argument and thereby affirmed his conviction and
sentence.
[5] In July 2007 McKinnon filed a PCR petition, which was dismissed without
prejudice in April 2009. On April 24, 2013, McKinnon filed a second PCR
petition, which he amended on December 1, 2014. The PCR court held an
evidentiary hearing on March 2, 2015, at which McKinnon’s trial counsel
testified.
[6] Evidence presented at the post-conviction hearing indicated that trial counsel
met with McKinnon six times prior to trial. Trial counsel maintained that he
reviewed discovery and discussed defense strategies with McKinnon. Trial
counsel explained that although several witnesses identified McKinnon as the
shooter, McKinnon insisted that he was not present at the time of the shooting.
McKinnon claimed he was with family. As a result, trial counsel filed a belated
notice of alibi on October 5, 2005, less than a week before his scheduled jury
trial. In the notice, trial counsel named McKinnon’s wife, his mother, and his
stepfather as alibi witnesses. Trial counsel testified that he could not secure
these witnesses and that he informed McKinnon of the difficulty he was
encountering with respect to presenting an alibi defense. Trial counsel stated
that he believed a claim of self-defense or sudden heat would have been more
viable if McKinnon had been present at the time of the shooting. Trial counsel
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testified that he explained the alternate defense theories to McKinnon, but
McKinnon kept insisting that he was not present at the time of the shooting.
[7] In light of McKinnon’s asserted alibi defense, the State filed a motion in limine
requesting, in part, that McKinnon be precluded from eliciting the fact that the
victim had a gun in his pocket at the time of the shooting. The trial court
granted the State’s motion in limine in this respect, but indicated that such
evidence could become relevant depending on evidence produced and
McKinnon’s theory of defense at trial. The trial court specifically noted that
such evidence could become relevant if McKinnon presented a claim of self-
defense. Trial counsel testified that he did not ask the court to reconsider its
ruling in this regard because the evidence was in conflict with the asserted
defense.
[8] On August 20, 2015, the post-conviction court issued its findings of fact and
conclusions of law denying McKinnon the relief requested. Additional facts
will be provided where necessary.
Discussion & Decision
[9] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
order to prevail, the petitioner must demonstrate that the evidence as a whole
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leads unerringly and unmistakably to a conclusion opposite the post-conviction
court’s conclusion. Id. Although we do not defer to a post-conviction court’s
legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
[10] A petitioner will prevail on a claim of ineffective assistance of counsel only
upon a showing that counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced the petitioner. Id.
at 1138. To satisfy the first element, the petitioner must demonstrate deficient
performance, which is “representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have
the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting McCary v.
State, 761 N.E.2d 389, 392 (Ind. 2002)).
[11] To satisfy the second element, the petitioner must show prejudice, which is “a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different.” Id. at 1139. “A reasonable probability is one that
is sufficient to undermine confidence in the outcome.” Kubsch v. State, 934
N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)). Because a petitioner must prove both deficient performance and
prejudice in order to prevail on a claim of ineffective assistance of counsel, the
failure to prove either element defeats such a claim. See Young v. State, 746
N.E.2d 920, 927 (Ind. 2001) (holding that because the two elements of
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Strickland are separate and independent inquiries, the court may dispose of the
claim on the ground of lack of sufficient prejudice if it is easier).
[12] McKinnon argues that his trial counsel was ineffective for failing to adequately
investigate and that such failure prevented him from presenting a “full-throated
defense” to the jury. Appellant’s Brief at 9. Specifically, he faults his trial
counsel for meeting with him only six times prior to trial and failing to hire an
investigator or take any depositions.
[13] The post-conviction court concluded that McKinnon presented “no evidence as
to what [his trial counsel] should have done and how what he either did do or
did not do on [McKinnon]’s behalf would likely have caused a different result
at trial.” Appellant’s Appendix at 117. We agree with the post-conviction court.
[14] We have before held that “establishing 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), cert. denied (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).
Here, McKinnon merely alleged that his trial counsel was ineffective by failing
to investigate. McKinnon did not indicate what further investigation would
have produced. McKinnon has not established any prejudice resulting from
counsel’s performance. Moreover, as noted by this court on direct appeal, the
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evidence supporting McKinnon’s conviction was “overwhelming.” 1 McKinnon,
slip. op. at 8.
[15] Contrary to McKinnon’s claim, this case is unlike McCarty v. State, 802 N.E.2d
959 (Ind. Ct. App. 2004). In McCarty, trial counsel met with his client only
once. This court noted, “it seems obvious that evidence of only a single
meeting between counsel and client in a multiple-felony case would alert a
reviewing court to the possibility of inadequate representation.” Id. at 964.
Here, McKinnon’s trial counsel met with McKinnon six times, discussed the
evidence against him, and reviewed possible defense strategies. These
circumstances are distinct from those in McCarty and do not immediately
“alert” us that counsel provided deficient performance. McKinnon has not
established that his counsel rendered deficient performance in this regard.
[16] McKinnon also argues that his trial counsel was ineffective when, after
abandoning2 the alibi defense at trial, he failed to assert a claim of self-defense
or sudden heat.3 Specifically, McKinnon argues that trial counsel should have
requested reconsideration of the trial court’s grant of the State’s motion in
limine, which precluded McKinnon from presenting evidence that the victim
1
Two witnesses testified that McKinnon was the shooter and a third witness testified that while in jail with
McKinnon, McKinnon admitted to shooting the victim.
2
We note that the record does not support McKinnon’s claim that trial counsel abandoned the alibi defense.
The sole witness in his defense testified that he did not see McKinnon at the scene where the shooting
occurred. During closing argument, counsel pointed out this evidence for the jury.
3
The existence of circumstances demonstrating that a person who knowingly or intentionally kills another
human being while acting under “sudden heat” commits voluntary manslaughter. See Ind. Code § 35-42-1-3.
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had a handgun in his pocket when he was shot. McKinnon maintains that this
evidence would have supported the alternate defenses.
[17] The post-conviction court concluded that trial counsel was not ineffective for
not pursing a self-defense claim or a voluntary manslaughter defense. The post-
conviction court noted that trial counsel’s efforts to challenge the sufficiency of
the evidence and to establish reasonable doubt were the best defenses he could
present given McKinnon’s insistence that he was not present at the time of the
shooting.
[18] We find no error in the post-conviction court’s conclusion in this regard.
McKinnon acknowledges that his trial counsel discussed the difficulty of
pursuing an alibi defense. During the post-conviction hearing, McKinnon’s
trial counsel testified that he also discussed with McKinnon the viability of
presenting a claim of self-defense and/or mitigating factors in an effort to show
that McKinnon acted in sudden heat. Trial counsel further testified that he was
not going to force petitioner to pursue those defenses given that McKinnon was
clearly asserting a different defense.4
[19] Trial counsel’s decision to pursue only an alibi defense does not amount to
deficient performance. By insisting that he was not present at the time of the
shooting, McKinnon essentially stymied trial counsel’s defense strategy.
4
In its order, the trial court credited trial counsel’s testimony and discounted McKinnon’s testimony that
alternate defense theories were never discussed.
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McKinnon’s insistence that he was not present provided no basis for a claim
that he acted in self-defense or under sudden heat.
[20] In turn, counsel’s performance was not deficient in failing to ask the trial court
to reconsider its ruling on the admissibility of evidence regarding the presence
of a handgun in the victim’s pocket at the time of the shooting. Trial counsel
testified that he made this decision because he believed McKinnon was going to
testify as to his whereabouts. When McKinnon later chose not to testify,
counsel believed it was too late to present evidence pertaining to self-defense or
voluntary manslaughter. Trial counsel therefore proceeded by calling a witness
who testified that McKinnon was not present when the victim was killed.
McKinnon has not established that trial counsel’s decision was unreasonable
under the circumstances. See Curtis v. State, 905 N.E.2d 410, 414 (Ind. Ct. App.
2009) (“[c]ounsel is afforded considerable discretion in choosing strategy and
tactics, and we will accord those decisions deference”), trans. denied.
[21] In summary, McKinnon has failed to establish that he received ineffective
assistance of trial counsel.
[22] Judgment affirmed.
[23] Bailey, J. and Bradford, J., concur.
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