Trondo L. Humphrey v. State of Indiana

FILED
Jun 23 2016, 7:57 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana

John Pinnow Brian Reitz
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Trondo L. Humphrey, June 23, 2016
Appellant-Petitioner, Court of Appeals Case No.
48A02-1508-PC-1238
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Thomas Newman,
Appellee-Respondent. Jr., Judge
Trial Court Cause No.
48C03-1206-PC-19

May, Judge.

Court of Appeals of Indiana | Opinion 48A02-1508-PC-1238 | June 23, 2016 Page 1 of 18
[1] Trondo L. Humphrey appeals the denial of his petition for post-conviction

relief. As his trial counsel’s assistance was ineffective and his petition is not

barred by laches, 1 we reverse and remand.

Facts and Procedural History
[2] Humphrey was convicted of murder in 1996. Our Indiana Supreme Court

recited the facts of the crime:

On the night of April 28-29, 1995, Benjamin Laughlin and
Stephen Sites were driving around a neighborhood in Anderson
looking for crack cocaine. Sites’ account of events is summarized
first. Sites was driving his truck. The two had been circling the
same neighborhood for thirty to forty-five minutes when they
saw three people in an alley. Believing the three to be drug
dealers, Laughlin told Sites to pull into the alley. One of the
three approached the truck on the passenger side and Laughlin
asked the dealer to get in the cab to discuss a cocaine sale. As

1
On cross-appeal, the State argued the post-conviction court erred when it did not find Humphrey’s petition
barred by laches. The State had raised laches at the post-conviction hearing, but the court’s findings and
conclusions did not address laches, only ineffective assistance. Those findings and conclusions were
prepared and submitted by the State and the post-conviction court adopted them verbatim.
Post-Conviction Rule 1(6) requires the post-conviction court to make specific findings of fact and conclusions
of law “on all issues presented,” Kelly v. State, 952 N.E.2d 297, 301 (Ind. Ct. App. 2011), so the findings and
conclusions should have addressed laches. Where the post-conviction court enters findings and conclusions,
as it is required to do, we cannot affirm the judgment on any legal basis -- rather, we will affirm if the court’s
findings are sufficient to support the judgment. Lile v. State, 671 N.E.2d 1190, 1192 (Ind. Ct. App. 1996).
The State does not in its cross-appeal acknowledge the Lile rule or offer explanation why we might be able to
affirm based on laches despite that rule.
In an Order issued March 30, 2016, we directed the post-conviction court to issue amended findings and
conclusions that addressed all issues presented, specifically laches. It did so on April 22, 2016, and it
determined Humphrey’s post-conviction petition was not barred by laches. As explained below, that was not
error. It did not otherwise change its original order denying Humphrey’s petition on the ground Humphrey’s
counsel was not ineffective, which we reverse.

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 Sites drove, Laughlin and the dealer quickly exchanged words,
the dealer drew a gun, Laughlin grabbed it, and the gun
discharged. Sites saw the barrel of the gun but did not see a
“flash” because the dealer “had the gun pushed up against
[Laughlin].” Record at 253. The single shot struck Laughlin in
the abdomen and the dealer jumped out of the moving truck and
ran away. Sites testified that the dealer was young, black, had
short hair, and was about five feet ten inches tall. However, Sites
was unable to provide a more precise identification of the dealer
and also could not identify his two comrades waiting nearby.
Sites estimated that the dealer was in the truck for thirty to forty
seconds. Sites drove Laughlin to a nearby hospital where he
eventually died from the wound. A forensic technician examined
Sites’ truck for fingerprints and blood spatters but was unable to
recover any physical evidence or discernable fingerprints from
the vehicle.

[3] Donnie Smith testified that he was drinking and smoking
marijuana with [Humphrey] and Roosevelt Brooks on the night
of the murder in Brooks’ garage near the alley where the shooting
occurred. The garage door was open so the three had access to
the alley to sell drugs on the street. At some point a truck
stopped outside the garage and [Humphrey] went outside to greet
it, indicating to Smith that he believed the occupants were
looking for cocaine. Smith heard the door of the truck open and
close in the alley but testified that he did not hear any shots or
actually see [Humphrey] approach or enter the truck. The truck
then “peel[ed] out” and [Humphrey] returned to the garage,
telling Smith that the “dude” tried to “gank him” or “get him.”
Record at 278. Smith saw only the back of the truck and could
not testify to its color or whether it was the vehicle driven by
Sites that evening. At some point prior to this incident, but not
in the garage that night, Smith had seen [Humphrey] carrying a
gun.

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[4] On June 16, 1995, Brooks, while in jail on an unrelated charge,
gave an unsworn written statement to a police detective about the
events of that night. According to the statement, Brooks was in
his garage with someone he identified as [Humphrey] from a
photographic lineup containing pictures of six black males.
[Humphrey] went out to a blue truck with “white guys” inside,
Brooks heard a “noise,” and [Humphrey] returned soon
thereafter, stating that he had shot one of the men. Record at
310. At trial, Brooks testified that he knew [Humphrey] but was
not with him or Smith on the night of the shooting. Brooks
repudiated the statement, which had been admitted to impeach
the credibility of his courtroom version, and testified in essence
that it was fabricated due to police pressure.

Humphrey v. State, 680 N.E.2d 836, 837-38 (Ind. 1997) (footnote omitted).

[5] In his direct appeal, 2 Humphrey argued the trial court abused its discretion

when it admitted into evidence Brooks’ statement regarding Humphrey’s

participation in the murder and erred when it did not admonish the jury to

consider the statement for impeachment purposes only. 3 Our Indiana Supreme

Court held Brooks’ prior inconsistent statement was admissible for

impeachment and, regarding the admonition, “had a proper objection been

2
As noted above, the State submitted findings and conclusions that the post-conviction court adopted
verbatim. One finding says: “On May 29, 1997, the Indiana Court of Appeals affirmed Humphrey’s
conviction.” (App. at 79.) We did not. Humphrey appealed directly to the Indiana Supreme Court.
3
Humphrey also argued the State did not present sufficient evidence he committed murder, the trial court
abused its discretion when it did not admit an affidavit from Brooks, and the trial court abused its discretion
when it admitted a photograph of the victim. Humphrey did not raise these issues in his petition for post-
conviction relief, so we do not address them.

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 lodged to the instruction, the court would have been required to entertain it.”

Id. at 840 (citation to the record omitted).

[6] On June 6, 2012, Humphrey filed a pro se petition for post-conviction relief and

requested counsel. On March 14, 2014, Humphrey filed, via counsel, an

amended petition for post-conviction relief, arguing his trial counsel was

ineffective because 1) he did not object to the admission of Brooks’ pre-trial

statement on the correct grounds; 4 2) he did not request an admonition based

on the admission of Brooks’ pre-trial statement; 3) he did not object to the

court’s final instruction on prior inconsistent statements; 4) he “erroneously

endorsed,” (App. at 29), the court’s instruction regarding prior inconsistent

statements; and 5) he did not tender a correct instruction on prior inconsistent

statements.

[7] The post-conviction court held evidentiary hearings on Humphrey’s petition on

November 10, 2014, and December 22, 2014. On August 6, 2015, it denied

Humphrey’s petition, finding Humphrey’s trial counsel was not ineffective.

Discussion and Decision

4
Counsel objected on foundational grounds, but not hearsay grounds. As our Indiana Supreme Court noted
in Humphrey’s direct appeal, the statement would have been admissible even if a hearsay objection had been
successful. Humphrey, 680 N.E.2d at 839. We therefore need not address Humphrey’s allegation of error
premised on the nature of the objection.

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[8] Post-conviction proceedings are not “super appeals”; rather, they afford

petitioners a limited opportunity to raise issues that were unavailable or

unknown at trial and on direct appeal. Wilkes v. State, 984 N.E.2d 1236, 1240

(Ind. 2013). Post-conviction proceedings are civil in nature, and petitioners

bear the burden of proving their grounds for relief by a preponderance of the

evidence. Id. We accept the post-conviction court’s findings of fact unless they

are clearly erroneous, but we do not defer to its conclusions of law. 5 State v.

Hollin, 970 N.E.2d 147, 151 (Ind. 2012). We may not reweigh the evidence or

assess the credibility of the witnesses. Id. at 150.

5
In its brief, the State urges us to review the post-conviction court’s judgment with “greater than usual
deference,” (State’s Br. of Appellee at 14), because the same judge presided over Humphrey’s trial and his
post-conviction proceedings. It directs us to Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013), reh’g
denied, trans. denied, where we said “a post-conviction court’s findings and judgment should be entitled to
‘greater than usual deference’ when the post-conviction judge is the same judge who conducted the original
trial.”
We decline to review this case with an enhanced level of deference because, as noted above, the post-
conviction court adopted, verbatim, findings and conclusions the State submitted. Our Indiana Supreme
Court noted in Prowell v. State, 741 N.E.2d 704, 708-09 (Ind. 2001), that:
It is not uncommon for a trial court to enter findings that are verbatim reproductions of
submissions by the prevailing party. The trial courts of this state are faced with an
enormous volume of cases and few have the law clerks and other resources that would be
available in a more perfect world to help craft more elegant trial court findings and legal
reasoning. We recognize that the need to keep the docket moving is properly a high
priority of our trial bench. For this reason, we do not prohibit the practice of adopting a
party’s proposed findings. But when this occurs, there is an inevitable erosion of the
confidence of an appellate court that the findings reflect the considered judgment of the
trial court.
In Prowell, most of the statements in the findings of fact and conclusions of law were correct “if viewed in
isolation, but many are presented out of context and, as a result, are significantly misleading. We find some
of the critical findings of the postconviction court to be clearly erroneous as that term is used in Trial Rule
52(A).” Id. at 709. We cannot in the case before us reconcile the “greater than usual deference” the State
urges with the “inevitable erosion of the confidence of an appellate court that the [State-submitted] findings
reflect the considered judgment” of Humphrey’s post-conviction court. That is particularly true in this case
because, as noted, there are omissions and findings of questionable factual and legal accuracy that have
eroded our confidence.

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 I. Laches
[9] Humphrey did not seek post-conviction relief until fifteen years after his direct

appeal was decided. The post-conviction court determined his petition was not

barred by laches, and that was not clearly erroneous.

[10] Because the State had the burden of proving laches as an affirmative defense,

the applicable standard of review requires that we affirm unless we find the

judgment clearly erroneous. Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind.

2001). This is a review for sufficiency of evidence. Id. We will not reweigh

evidence or assess credibility of witnesses. Rather, we look only to the evidence

and reasonable inferences favorable to the judgment, and we will affirm if there

is probative evidence to support the post-conviction court’s judgment. Id.

[11] “The equitable doctrine of laches operates to bar consideration of the merits of

a claim or right of one who has neglected for an unreasonable time, under

circumstances permitting due diligence, to do what in law should have been

done.” Id. “For laches to apply, the State must prove by a preponderance of

the evidence that the petitioner unreasonably delayed in seeking relief and that

the State is prejudiced by the delay.” Id. (emphasis added).

[12] The post-conviction court determined “[t]he State did not present evidence on

the unreasonable delay element.” (Findings of Fact and Conclusions of Law on

Laches at 3.) It heard testimony by Humphrey’s appellate counsel that he never

would have talked to Humphrey about post-conviction relief. Counsel testified

he did not raise ineffective assistance on direct appeal because “the

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 conventional wisdom” was that “you don’t raise ineffectiveness of trial counsel

on - - on a direct appeal.” (Tr. at 33-34.) But counsel also said he was reluctant

to raise ineffectiveness because he had been involved in a waiver hearing and “I

would almost have been raising myself ineffective.” (Id. at 34.)

[13] As there was no evidence Humphrey knew post-conviction remedies were

available to him, we decline the State’s invitation to find he was “on bright-

lights notice about this issue and sat on [his] hands for a decade and a half.”

(Br. of Appellee at 16.) We acknowledge that the State need not

supply direct proof of petitioner’s knowledge. Circumstantial
evidence is sufficient to show state of mind. Facts from which a
reasonable finder of fact could infer petitioner’s knowledge may
support a finding of laches.

*****

While the evidence in some cases has provided the proverbial
“smoking gun” of actual knowledge of post-conviction remedies,
no one factor is controlling. Repeated contacts with the criminal
justice system, consultation with attorneys and incarceration in a
penal institution with legal facilities are all facts from which the
fact finder may infer knowledge. The determination of
sufficiency, of course, must be made by the trial court; if there is
probative evidence to support its determination, we will affirm
the trial court’s judgment. The court is not obligated to infer
knowledge from any particular set of circumstances, nor is it
bound to accept petitioner’s assertions of ignorance. The State
must, however, present some objective facts from which the court
may draw a reasonable inference of knowledge.

Perry v. State, 512 N.E.2d 841, 844-45 (Ind. 1987) (citation omitted), reh’g denied.
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[14] As there was probative evidence to permit a determination Humphrey did not

know post-conviction remedies were available to him, the State did not prove

Humphrey’s delay was unreasonable. 6 Moreover, the post-conviction court

expressly found the State’s key witnesses were available to testify in the event of

a retrial, and “[t]he State has not shown the passage of time has affected their

memories or ability to testify at a retrial.” (Findings of Fact and Conclusions of

Law on Laches at 3.) In other words, the post-conviction court, after having

considered the State’s arguments and evidence, concluded the State had not

met its burden to demonstrate prejudice as a result of Humphrey’s delay. We

cannot say that judgment is clearly erroneous. See Armstrong, 747 N.E.2d at

1120 (for laches to apply, the State must prove both unreasonable delay and

prejudice from the delay). As we cannot find clear error, Humphrey’s petition

for post-conviction relief is not barred by laches.

II. Deficient Performance
[15] To succeed on a claim of ineffective assistance of counsel, a petitioner must

show not only that his trial counsel’s representation fell below an objective

standard of reasonableness, but also that counsel’s errors were so serious as to

deprive him of a fair trial because of a reasonable probability that, but for

6
The State asserts Humphrey’s fifteen-year delay in petitioning for post-conviction relief “was per se
unreasonable.” (Br. of Appellee at 11.) It offers no legal authority to support that assertion, and we decline
to hold a fifteen-year delay is per se unreasonable. To the contrary, we have on many occasions explicitly
stated “lapse of time does not in and of itself constitute laches,” e.g., Kindred v. State, 514 N.E.2d 314, 317 (Ind.
Ct. App. 1987) (emphasis added), reh’g denied, trans. denied. Per se means “[o]f, in, or by itself.” Black’s Law
Dictionary 1162 (7th ed. 1999).

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 counsel’s unprofessional errors, the result would have been different. Stevens v.

State, 770 N.E.2d 739, 746 (Ind. 2002), reh’g denied, cert. denied. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.

Id. There is a strong presumption that counsel rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment. Id.

[16] Humphrey’s counsel was deficient for not asking that the jury be correctly

instructed that Brooks’ unsworn statement could be considered only for

impeachment, for not objecting to the trial court’s incorrect instruction, for not

tendering a correct instruction, and for erroneously telling the jury in closing

argument that the statement could be used in deciding whether Humphrey was

guilty. 7

[17] Humphrey’s argument is centered on the unsworn statement by Roosevelt

Brooks to the effect he was with Humphrey the night of the shooting,

Humphrey went to the truck Laughlin was riding in, Brooks heard a noise, and

Humphrey returned and said he had shot one of the men in the truck. Brooks

disavowed that statement at trial. While there was evidence Humphrey was at

the scene when the victim was shot, Brooks’ statement was the only evidence

specifically identifying Humphrey as the shooter.

7
Humphrey argues counsel was ineffective for other reasons. But as we find ineffectiveness based on the
instructional errors and counsel’s closing argument, we need not consider the other allegations of
ineffectiveness.

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 1. Instructional errors

[18] The trial court admitted that hearsay statement but did not limit its use to

impeachment. It instead erroneously instructed the jury it could consider the

statement as substantive evidence of Humphrey’s guilt. Our Indiana Supreme

Court explained why Brooks’ prior unsworn statement should not have been

admitted as substantive evidence:

[T]he statement was “classic hearsay” not ordinarily admissible
as substantive evidence. The statement in question is clearly
hearsay if offered to prove the facts contained because it was
given out of court notwithstanding that Brooks was on the stand.
This is precisely the point decided in Modesitt v. State, 578 N.E.2d
649 (Ind. 1991), which overruled Patterson v. State, 263 Ind. 55,
324 N.E.2d 482 (1975). Patterson had held that out-of-court
statements not given under oath could be considered as
substantive evidence so long as the declarant was available for
cross-examination at trial concerning the statement. In its place,
Modesitt adopted Federal Rule of Evidence 801(d)(1) as the law of
Indiana. The Indiana Rules of Evidence have since been
adopted, and accomplish by Rule what Modesitt did by decision.
Indiana Evidence Rule 801(d)(1)(A) provides that a statement is
not hearsay if “[t]he declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement, and the
statement is . . . inconsistent with the declarant’s testimony and
was given under oath subject to the penalty of perjury at a trial,
hearing or other proceeding, or in a deposition[.]” Because the
prior statement was not under oath, it was not admissible under
this Rule or any other. It was, however, admissible to impeach
Brooks.

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 Humphrey, 680 N.E.2d at 838-39. But the Humphrey Court determined on direct

appeal that Humphrey had waived his argument that the jury was wrongly

allowed to consider the statement as substantive evidence. Id. at 840.

[19] In its final instructions to the jury, Humphrey’s trial court gave an erroneous

“unlimiting” instruction, telling jurors they were free to consider a prior

inconsistent statement both to impeach and as substantive evidence bearing on

Humphrey’s guilt or innocence. That instruction “misstated the current law

and instructed the jury that it could consider as substantive evidence an

important piece of evidence that was admissible only for impeachment.” Id.

Humphrey did not object to the instruction. The trial court explicitly asked

Humphrey’s counsel if he had any objection to the proposed instructions and

counsel answered in the negative. Nor did Humphrey’s counsel tender a

correct instruction. Counsel’s failure to object to or correct the court’s

instructional error was below the standard reasonably expected of counsel.

2. Closing argument

[20] Not only did counsel decline to object to an instruction that misstated the law

and erroneously told the jury that it could consider Brooks’ statement as

substantive evidence, in his closing argument he misstated the law in the same

way the jury instruction did. Counsel told the jury it could “consider the out-of-

court statements as evidence in determining the guilt or innocence of

[Humphrey] for the crime charged. That’s the law, plain and simple. That’s

the instructions. You have to follow what . . . follow what you’re presented.”

(Trial R. at 488-89).
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[21] As explained above, that was wrong and counsel incorrectly told the jury it

could consider highly damaging evidence against Humphrey to determine

whether he was guilty. The jury should have been told it could consider

Brooks’ statement identifying Humphrey as the shooter only to determine

whether Brooks was credible. Counsel was deficient for making the same

erroneous statement of law as did the trial court in its instructions.

3. Trial strategy

[22] Counsel is afforded considerable discretion in choosing strategy and tactics, and

these decisions are entitled to deferential review. Id. at 746-47. Isolated

mistakes, poor strategy, inexperience, and instances of bad judgment do not

necessarily render representation ineffective. Id. at 747. 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).

[23] Trial strategy is not subject to attack through an ineffective assistance of counsel

claim unless the strategy is so deficient or unreasonable as to fall outside the

objective standard of reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141

(Ind. 1998). This was. If the decisions by Humphrey’s counsel were, as the

State argues, part of a “strategy,” we hold a strategy premised on allowing and

making erroneous statements of law that improperly permit a jury to consider

as substantive evidence of a client’s guilt a statement that was admissible only

for impeachment is a strategy “so deficient or unreasonable as to fall outside of

the objective standard of reasonableness.” Id. And see Roark v. State, 573
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 N.E.2d 881, 883 (Ind. 1991) (noting on appeal “apparent inadequacy of

counsel’s performance at trial” for failure to tender a complete instruction on

voluntary manslaughter). We decline the State’s invitation to characterize as

“strategic” counsel’s apparent acquiescence to an erroneous jury instruction and

counsel’s own endorsement in final argument of a misstatement of law that

permitted the jury to consider highly damaging evidence against his client for

an improper purpose.

[24] Our Indiana Supreme Court addressed failure to correct an erroneous statement

of law in Baer v. State, 942 N.E.2d 80, 99-100 (Ind. 2011), reh’g denied. Baer

argued counsel was ineffective for declining to object to misstatements of law

the prosecutor made. Our Supreme Court disagreed:

It seems likely that defense counsel consciously chose not to
object to the prosecutor’s misstatements as part of their general
strategy of letting the prosecutor discredit himself. At PCR,
[Counsel] testified that he . . . knew [the prosecutor] was capable
of overstating his case to the jury. Trial counsel planned to
correctly state the law to the jury when it was their turn, have the
judge echo their statement of the law through the jury
instructions, and hope the jury would decide from the contrast
that the prosecutor was not credible.

Consistent with this approach, defense counsel correctly stated
the law in closing argument. . . . And the court’s instructions
correctly stated the law and made it clear that they took
precedence over arguments by counsel on what the law was. It
was not deficient for [appellate counsel] to take a pass on this
potential claim.

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 Id.

[25] In the case before us, by contrast, Humphrey’s counsel did not correctly state

the law in closing argument, nor did the trial court in its jury instructions. We

cannot say permitting and repeating an incorrect statement of law that told the

jury it could consider damaging evidence against Humphrey for an improper

purpose represented a reasonable trial strategy. Counsel’s performance was

deficient.

III. Prejudice
[26] To succeed on a claim of ineffective assistance of counsel, a petitioner must

show counsel’s errors were so serious as to deprive him of a fair trial because of

a reasonable probability that, but for counsel’s unprofessional errors, the result

would have been different. 8 Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007),

8
This is sometimes referred to as the “prejudice” prong of the ineffective assistance analysis. Segura v. State,
749 N.E.2d 496, 501 (Ind. 2001). We must address the erroneous standard for prejudice the State presented
to the post-conviction court and the court adopted.
The court concluded Humphrey “presented no evidence of an error by trial counsel so egregious that in all
probability that error caused Humphrey’s conviction.” (App. at 82) (emphasis added). The court erred to the
extent it required Humphrey to meet that standard to show prejudice, and we admonish the State to refrain
from inaccurately characterizing the controlling law in findings and conclusions it submits.
The standard for demonstrating prejudice is: “A defendant establishes prejudice by demonstrating a
reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different.” Peak v. State, 26 N.E.3d 1010, 1014 (Ind. Ct. App. 2015) (emphasis added). A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id.
As explained elsewhere in this decision, our confidence in this post-conviction order has been undermined in
light of numerous errors in the court’s findings and conclusions. The language Humphrey’s post-conviction
court used, which would require a showing of error by trial counsel “so egregious that in all probability that
error caused” the conviction, is not found in any reported Indiana decision. It does appear in one unreported
decision, in the form of a conclusion of law entered in a post-conviction case decided in the same court as
was Humphrey’s, but by a different judge. Winbush v. State, No. 48A02-1401-PC-32, 2014 WL 4101667 (Ind.

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 cert. denied. Humphrey was prejudiced by the admission, as substantive

evidence, of Brooks’ statement.

[27] On direct appeal, our Supreme Court characterized the evidence against

Humphrey as “extremely thin”:

Although Brooks’ prior inconsistent statement could have been
precluded from consideration as substantive evidence for the
reasons explained, Humphrey’s failure to object on hearsay
grounds or request a limiting instruction allowed the jury to
consider the statement in deciding Humphrey’s culpability.
Indeed, the instructions explicitly permitted jurors to consider it
as substantive evidence under the now disapproved Patterson rule.

*****

Humphrey contends that in the absence of Brooks’ out-of-court
statement naming him as the assailant, there is no evidence tying
him to Laughlin’s murder. Identity is indeed the crucial
evidentiary issue here. The State’s case was wholly
circumstantial and would have been extremely thin if Brooks’
statement had not been before the jury as substantive evidence.
No physical evidence linked the defendant to the crime and the
State’s case hinged on the testimony of reluctant witnesses who
contradicted their own pretrial statements about Humphrey’s
possible involvement.

Humphrey, 680 N.E.2d at 840-41.

Ct. App. Aug. 20, 2014), trans. denied. That decision does not indicate whether the post-conviction judge
adopted verbatim findings and conclusions that the State submitted and that included the incorrect standard.

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[28] Humphrey was prejudiced because Brooks’ statement, which was the only

evidence that specifically identified Humphrey as the shooter in a case where

“[i]dentity is . . . the crucial evidentiary issue,” should not have been admitted

as substantive evidence of his guilt. In Maymon v. State, 870 N.E.2d 523, 528

(Ind. Ct. App. 2007), on reh’g, 875 N.E.2d 375 (Ind. Ct. App. 2007), trans.

denied, we held Maymon was prejudiced by counsel’s ineffective assistance

where counsel did not request severance as of right of four counts of burglary.

The only evidence of Maymon’s intent to commit theft in two of the burglaries

was the fact that in the other two burglaries he had also committed theft.

Because the evidence of the two burglaries where theft did occur would have

been inadmissible at separate trials for the two burglaries where thefts did not

occur, Maymon was prejudiced by his trial counsel’s failure to move for

severance of the burglary charges. Id. at 529. Similarly, in this case, counsel

did not submit a correct instruction or object to the court’s instruction, and

incorrectly told the jury it could consider Brooks’ statement in determining

Humphrey’s guilt or innocence. Humphrey was prejudiced by counsel’s errors

that allowed the jury to consider as substantive evidence the only evidence that

identified Humphrey as the shooter.

Conclusion
[29] As Humphrey’s counsel’s performance was deficient and the deficiencies

prejudiced Humphrey, we reverse the denial of Humphrey’s petition for post-

conviction relief and remand for a new trial.

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[30] Reversed and remanded.

Najam, J., and Riley, J., concur.

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