MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Nov 04 2019, 8:45 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Marco L. Webster Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marco L. Webster, November 4, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-189
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Respondent. Judge
Trial Court Cause No.
49G06-1509-PC-34504
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019 Page 1 of 20
Statement of the Case
[1] Marco L. Webster appeals the post-conviction court’s denial of his petition for
post-conviction relief. Webster raises nine issues for our review, which we
consolidate and restate as the following two issues:
1. Whether the trial court abused its discretion when it failed
to investigate a conflict between Webster and his trial
counsel and when it denied his trial counsel’s motion to
withdraw his appearance.
2. Whether the post-conviction court clearly erred when it
determined that he had not received ineffective assistance
from his trial counsel.
[2] We affirm.
Facts and Procedural History
[3] The facts underlying Webster’s robbery convictions were stated by this Court in
his direct appeal:
On New Year’s Eve of 2012, around 12:30 p.m., construction
worker Randall Crouch (Crouch) had completed a job on the
northwest side of Indianapolis, Indiana, and was loading tools
into his 2004 Ford Econoline work van. A black male wearing a
brown coat, a hoodie, and a mask over his face approached
Crouch, pointed a semi-automatic pistol at his face, and ordered
him to unlock the van and start the ignition. Crouch complied,
and after the robber had driven out of sight, he reported the
carjacking to the Indianapolis Metropolitan Police Department
(IMPD), describing the van as half blue and half white, with
ladders on the roof rack.
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Later that day, shortly before 3:00 p.m., a man armed with a
semi-automatic handgun walked into the International Parts
Store, located at 5360 N. Tacoma Avenue in Indianapolis, and
yelled for everyone to get down on the floor. At that time, three
employees were in the building: Todd Norris (Norris), Brian
Smith (Smith), and Eric Thompson (Thompson). At the
gunman’s command, Smith removed the cash from the register,
and all three gave him the cash from their wallets. After the
gunman ran out of the store, Smith called 9-1-1 and reported that
the store had been robbed at gunpoint by “a black male wearing a
blue and white plaid jacket with a dark hoodie.”
Minutes later, a black male “wearing dark pants, . . . a bluish-
black plaid jacket with a hoodie on, and with a scarf on his
face[,]” entered the Harris Tire & Automotive Service, located
across the street from the International Parts Store at 5425 N.
Keystone Avenue. The man aimed a semi-automatic handgun at
an employee, Danny Stumm (Stumm), and instructed him to
empty the cash drawer. As Stumm was unlocking the register,
the robber noticed a customer, Kenneth Rush (Rush), and
demanded his wallet. When the perpetrator detected movement
by another employee, Joshua Scholl (Scholl), he immediately
turned and shot Scholl in the hip. Scholl retreated to the garage
bays, where the company’s owner, William Harris (Harris), was
servicing a vehicle. Scholl, in the midst of calling 9-1-1, alerted
Harris to the fact that he had been shot. Due to the noise of the
compressor, Harris was unaware of the ongoing robbery. When
Harris opened the door to the showroom to investigate, the
robber fired a second shot in Harris’ direction. Although the
bullet missed Harris, shrapnel hit him on the side of his face.
The gunman exited the store, and Harris and Scholl observed
through the window as he entered the driver-side door of a Ford
service van, half white and half blue, with ladders on top. Harris
noted that the license plate number was 1562534.
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Within minutes of the robberies, IMPD officers responded to
both locations and commenced investigations. The witnesses
were all separated for interviews, and Scholl was transported to
the hospital. In general, they described the suspect as a black
male in his twenties or thirties and of “average” or “medium”
height and build. The witnesses also confirmed that the suspect
was wearing a very distinctive blue and white plaid coat, dark
pants, a dark hoodie that was pulled over his head, and a dark-
colored scarf that left only his eyes exposed. Norris, Thompson,
and Stumm described the scarf as having a camouflage pattern.
In addition, while ordered to lie on the ground, Norris and
Thompson observed that the suspect wore brand new tennis
shoes that “were black and what I remember distinctly was the
very clean white edges, around the bottom.” Thompson
identified the brand of shoes as “Jordans” and further noted that
the suspect had facial hair “around his nose.”
On that same afternoon, IMPD Officer Gary Toms (Officer
Toms) was working an off-duty security job at Inverness
Apartments, located on the northwest side of Indianapolis, about
a fifteen-to-twenty-minute drive from the International Parts
Store and the Harris Tire & Automotive Service. At
approximately 3:15 p.m., a blue and white Ford Econoline van
pulled into the parking lot. When it passed by Officer Toms’
squad car, he observed that the driver, later identified as Webster,
was the sole occupant of the van. Immediately recognizing the
van as the one described in the carjacking reported earlier that
day, Officer Toms radioed for assistance. Officer Michael Roach
(Officer Roach) was in the area and arrived moments later. They
followed the van’s route to the rear of the apartment complex
and observed Webster walking on the sidewalk, wearing a dark-
colored hoodie and carrying a “plaid flannel looking coat or
jacket.” When they instructed him to stop, Webster took off
running.
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As the officers pursued him on foot, they saw Webster throw the
coat and several other items down. Officer Roach apprehended
Webster, placed him in handcuffs, and escorted him to his squad
car. Retracing Webster’s steps, the officers found a black nine-
millimeter handgun and $682 in cash strewn throughout the
snow, along with the blue and white plaid jacket. Inside the
jacket pocket was a camouflage-patterned scarf and Rush’s
wallet. The van was registered to Crouch and had the license
plate number 1562534.
In the midst of his investigation at the International Parts Store,
Detective Brent Hendricks (Detective Hendricks) received a
report that Webster had been stopped with a van matching the
one described by the Harris Tire & Automotive Service
employees. Detective Hendricks told the witnesses that IMPD
“had a person stopped that I wanted them to look at. . . . I
specifically informed them that it may or may not be the person
that robbed them but I did want them to take a look.” Between
4:00 p.m. and 5:15 p.m., Norris, Smith, Thompson, Harris,
Stumm, and Rush were separately transported to Inverness
Apartments in order to identify whether Webster was the robbery
suspect.
Because Webster had discarded the plaid coat when he fled,
Officer Roach held the coat up near Webster for the first witness
and subsequently draped it over Webster’s shoulders for the rest.
Each of the six witnesses unequivocally identified the jacket as
being the same one worn by the robber. In addition to the jacket
and hoodie, Harris immediately identified the van as the one
used by the robber, and Rush noted that Webster’s “build and
everything seemed to be the same.” Norris also indicated that
Webster’s “shoes were the dead giveaway.” Finally, Thompson
stated that he “was a hundred percent positive that the clothes
and the shoes were the same. And I could tell from the upper
half of [Webster’s] face that it was the same facial features as the
guy who came and robbed us.”
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Webster v. State, No. 49A02-14-4-CR-253, 2015 WL 849475, at *1-3 (Ind. Ct.
App. Feb. 26, 2015) (citations omitted), trans. denied.
[4] The State charged Webster with one count of carjacking, as a Class B felony
(Count 1); four counts of criminal confinement, as Class B felonies (Counts 2
through 5); five counts of robbery, as Class B felonies (Counts 6 through 9 and
11); one count of battery, as a Class C felony (Count 10); and one count of
unlawful possession of a firearm by a serious violent felon, as a Class B felony
(Count 12). Thereafter, the State amended the information and additionally
charged Webster with one count of robbery, as a Class A felony (Count 13). 1
The State also alleged that Webster was a habitual offender.
[5] On February 24 and 25, 2014, the trial court held a bifurcated jury trial. At the
conclusion of the trial, the jury found Webster not guilty of Counts 1 and 2, but
guilty of Counts 3 through 11 and 13. During the second phase of the trial, the
State dismissed Count 12, and Webster stipulated to the habitual offender
charge. Based on double jeopardy concerns, the trial court merged Counts 3, 4,
and 5 into Counts 6, 7, and 8, and it merged Counts 9 and 10 into Count 13.
Accordingly, the trial court entered judgment of conviction on Counts 6, 7, 8,
11, and 13 and adjudicated Webster a habitual offender. The trial court then
1
Counts 6, 7, 8, 9, and 11 alleged that Webster had robbed Smith, Thompson, Norris, Stumm, and Rush,
respectively, while armed with a deadly weapon. Count 13 alleged that Webster had robbed Stumm while
armed with a deadly weapon and that that robbery resulted in serious bodily injury to Scholl.
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sentenced Webster to an aggregate sentence of eighty-five years in the
Department of Correction.
[6] On direct appeal, Webster raised two issues for our review. He first asserted
that “the trial court abused its discretion in admitting evidence of the show-up
identifications.” Webster, 2015 WL 849475 at *4. Webster also asserted that
“the State presented insufficient evidence to support his conviction.” Id. at *5.
We affirmed Webster’s convictions.
[7] Thereafter, Webster, pro se, filed his amended petition for post-conviction relief.
In that petition, Webster raised fifteen claims of ineffective assistance of trial
counsel and two claims of ineffective assistance of appellate counsel. He
further asserted that the trial court had abused its discretion for three reasons.
Following a hearing, the post-conviction court entered findings of fact and
conclusions of law. As to Webster’s multiple claims of ineffective assistance of
counsel, the post-conviction court concluded that Webster had not
demonstrated “any error” on the part of his trial counsel. Appellant’s App. Vol.
II at 27. Similarly, the post-conviction court concluded that “Webster’s
appellate counsel was not ineffective.” Id. at 28. And as to Webster’s claims
that the trial court had abused its discretion, the post-conviction court
concluded that those were freestanding issues that Webster could not raise in
his petition for post-conviction relief because they were either available to
Webster on direct appeal but not raised or raised on appeal and decided against
him. Accordingly, the court denied Webster’s petition. This appeal ensued.
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Discussion and Decision
[8] Webster appeals the post-conviction court’s denial of his petition for post-
conviction relief. As our Supreme Court has stated:
“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
“When appealing the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. at 274. In order to prevail on an appeal from the
denial of post-conviction relief, a petitioner must show that the
evidence leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case entered findings of fact and
conclusions of law in accordance with Indiana Post-Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (internal quotation omitted).
Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).
[9] In particular, Webster alleges that the trial court abused its discretion when it
failed to investigate a conflict between Webster and his trial counsel and when
it denied trial counsel’s motion to withdraw his appearance. He further asserts
that the post-conviction court erred when it determined that he was not denied
the effective assistance of trial counsel.
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Issue One: Abuse of Discretion by Trial Court
[10] Webster first contends that the trial court abused its discretion when it failed to
investigate a conflict between him and his trial counsel and when it denied his
trial counsel’s motion to withdraw his appearance. 2 However, “[p]ost-
conviction procedures do not afford a petitioner with a super-appeal, and not all
issues are available.” Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).
Rather, “[p]ost-conviction procedures provide defendants the opportunity to
raise issues that were not known at the time of the original trial or were not
available to defendants on direct appeal.” Bunch v. State, 778 N.E.2d 1285,
1289 (Ind. 2002). “It has long been held that claims available on direct appeal
but not presented are not available for post-conviction review.” Id. Here, both
of Webster’s claims that the trial court had abused its discretion were known
and available to Webster but not raised on direct appeal. Accordingly,
Webster’s claims of trial court error are not available for post-conviction review.
The post-conviction court properly denied those freestanding claims of error.
Issue Two: Effectiveness of Trial Counsel
[11] Webster next contends that the post-conviction court clearly erred when it
determined that he did not receive ineffective assistance from his trial counsel.
As our Supreme Court has explained:
2
In his petition for post-conviction relief, Webster also asserted that the trial court abused its discretion
when it admitted as evidence testimony that identified clothing worn by the robber. However, Webster does
not raise that issue on appeal.
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When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the defendant must show deficient performance:
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.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014). The “[f]ailure to satisfy either
prong will cause the claim to fail.” French v. State, 778 N.E.2d 816, 824 (Ind.
2002). Further, “[t]here is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018).
“Counsel is afforded considerable discretion in choosing strategy and tactics
and these decisions are entitled to deferential review.” Id.
[12] On appeal, Webster asserts that his trial counsel was ineffective because his trial
counsel: (1) failed to seek a dismissal of all charges against him; (2) failed to
seek dismissal of Count 9; (3) failed to request a lesser-included jury instruction;
(4) failed to object to the use of a photograph as evidence; (5) failed to object to
the State’s ballistic evidence; and (6) elicited an in-court identification of
Webster. We address each argument in turn.
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1) Motion to Dismiss
[13] Webster first contends that his trial counsel was ineffective for failing to file a
motion to dismiss all of the charges against him. In order to prevail on a claim
of ineffective assistance of counsel due to a failure to file a motion to dismiss,
“the defendant must show a reasonable probability that the motion to dismiss
would have been granted if made.” Garrett v. State, 992 N.E.2d 710, 723 (Ind.
2013). Here, Webster specifically contends that his trial counsel was ineffective
for failing to file a motion to dismiss all of the charges against him because he
was not represented by counsel at the initial hearing. Webster maintains that,
had he been represented by counsel at the initial hearing, his attorney at that
hearing “could have challenged” several inaccuracies in the probable cause
affidavit. Appellant’s Br. at 38.
[14] Webster is correct that a “defendant’s right to counsel arises at any point during
a criminal proceeding in which the absence of counsel would erode the
defendant’s right to a fair trial.” Hopper v. State, 957 N.E.2d 613, 616 (Ind.
2011). This includes any critical stage in which incrimination may occur or
where the opportunity for effective defense must be seized or be foregone. Id.
However, “[a]n initial hearing conducted under Indiana’s statutory scheme is
not a critical stage of the criminal proceeding requiring the presence of
counsel.” Id. As Webster did not have the right to counsel at his initial
hearing, he has not shown that there is a reasonably probability that a motion to
dismiss the charges against him based on the lack of representation at that stage
would have been granted. Webster has not demonstrated that he received
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ineffective assistance from his trial counsel for failing to file a motion to dismiss
the charges. We affirm the post-conviction court’s judgment on this issue.
2) Multiplicitous Charges
[15] Webster next asserts that his trial counsel was ineffective because he did not
seek to have a “multiplicitous indictment” dismissed. Appellant’s Br. at 21.
Again, in order to prevail on this claim, Webster must show a reasonable
probability that the motion to dismiss would have been granted if made.
Garrett, 992 N.E.2d 723. Webster’s argument on this issue is not clear, but it
appears as though he asserts that his trial counsel should have moved to dismiss
Count 9, robbery, as a Class B felony, because that count was duplicative of
Count 13, robbery, as a Class A felony since both counts were based on the
robbery of Stumm. However, our Supreme Court has held that, “a defendant
may be tried in the same proceeding for multiple offenses, including greater and
lesser offenses[.]” Griffin v. State, 717 N.E.2d 73, 78. As Webster could be tried
in the same proceeding for both robbery, as a Class A felony, and robbery, as a
Class B felony, in the same proceeding, he has not shown that a motion to
dismiss the Class B felony robbery charge would have been granted. 3 Webster’s
counsel was not ineffective for failing to file a motion to dismiss Count 9, and
we affirm the post-conviction court on this issue.
3
Further, even if we assume for the sake of argument that a reasonable attorney would have filed a motion
to dismiss Count 9, Webster has not shown that the result of the proceedings against him would have been
different as the trial court did not enter judgment of conviction against Webster on Count 9.
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3) Jury Instruction
[16] Webster also asserts that the post-conviction court erred when it determined
that he did not receive ineffective assistance from his trial counsel based on his
counsel’s failure to request that the jury be instructed that Count 9, robbery, as a
Class B felony, was a lesser included offense to Count 13, robbery, as a Class A
felony. To prevail on this claim, Webster has the burden to show that counsel
unreasonably failed to request a proper instruction and that Webster was
prejudiced by the failure to request the instruction. See Potter v. State, 684
N.E.2d 1127, 1134 (Ind. 1997). Further, as our Supreme Court has held:
When a defendant requests an instruction covering a lesser-
included offense, a trial court applies the three-part analysis set
forth in Wright v. State, 658 N.E.2d 563, 566-67 (Ind. 1995). The
first two parts require the trial court to determine whether the
offense is either inherently or factually included in the charged
offense. If so, the trial court must determine whether there is a
serious evidentiary dispute regarding any element that
distinguishes the two offenses. Wright held that if, in view of this
dispute, a jury could conclude that the lesser offense was
committed but not the greater, then it is reversible error for a trial
court not to give an instruction, when requested, on the
inherently or factually included lesser offense.
Wilson v. State, 765 N.E.2d 1265, 1271 (Ind. 2002) (quotation marks and
citations omitted).
[17] At the time of the offenses, robbery was defined as a person who knowingly or
intentionally takes property from another person or from the presence of
another person by using or threatening the use of force or by putting any person
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in fear. Ind. Code § 35-42-5-1 (2012). The offense was a Class B felony if it was
committed while armed with a deadly weapon. Id. And the offense was a
Class A felony if it resulted in serious bodily injury to any person other than the
defendant. Id. On the facts of this case, the State charged Webster with
robbery, as a Class B felony, based on the allegation that Webster had robbed
Stumm while armed with a deadly weapon. And the State charged Webster
with robbery, as a Class A felony, based on the allegation that Webster had
robbed Stumm while armed with a deadly weapon and that the robbery resulted
in serious bodily injury to Scholl.
[18] Here, the distinguishing element between the two offenses is the serious bodily
injury to Scholl. See Hogan v. State, 966 N.E.2d 738, 749 (Ind. Ct. App. 2012).
Accordingly, the Class B felony robbery charge is factually included in the Class
A felony charge, and Webster would therefore have been entitled to a lesser
included jury instruction only if there was a serious evidentiary dispute
concerning the element of serious bodily injury. See id.
[19] However, there was no dispute at Webster’s trial that Scholl was shot in the hip
and that the person who shot him was the same person who had robbed
Stumm. Accordingly, there was no evidentiary dispute regarding the element
that distinguishes the two robbery charges. In other words, the jury could have
either concluded that Webster had not robbed Stumm and therefore did not
shoot Scholl or that Webster had robbed Stumm and shot Scholl. But the jury
could not have found that Webster had robbed Stumm but not shot Scholl. As
such, the jury could not have concluded that Webster had committed the lesser
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offense of robbery while armed with a deadly weapon but not the greater
offense of robbery that resulted in serious bodily injury. See Wilson, 65 N.E.2d
at 1271. Because there is no serious evidentiary dispute regarding any element
that distinguished the two offenses, Webster cannot prevail on his claim that his
attorney was ineffective for failing to request a lesser included jury instruction.
We affirm the post-conviction court’s judgment on this issue.
4) Photographic Evidence
[20] Webster next contends that his trial counsel was ineffective because he did not
object to the State’s use of a photograph as evidence. To prove ineffective
assistance of counsel due to the failure to object, “the petitioner must establish
that an objection would have been sustained and that the petitioner was
prejudiced by the failure to object.” Ivy v. State, 98 N.E.3d 107, 111 (Ind. Ct.
App. 2018). Webster maintains that his trial counsel should have objected
when the State showed a photograph of the Harris Tire & Automotive Service
(“Harris Tire”) robbery to a witness of the International Parts Store robbery
because that photograph was evidence of a prior bad act in violation of Indiana
Evidence Rule 404(b).
[21] Indiana Evidence Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.” But
that rule further provides that the evidence “may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or lack of accident.” Ind. Evidence
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Rule 404(b)(2). Here, it is clear that the State used the photograph of the Harris
Tire robbery to establish the identity of the person who had robbed the
International Parts Store. Accordingly, that evidence was admissible under
Indiana Evidence Rule 404(b)(2). And because that evidence was admissible,
any objection by his trial counsel would not have been sustained. Webster’s
trial counsel was not ineffective for failing to object to the State’s use of that
photograph, and we affirm the post-conviction court on this issue.
5) Ballistics Evidence
[22] Webster also contends that he received ineffective assistance from his trial
counsel when his trial counsel failed to object to the State’s ballistics evidence.
Again, to prove that his counsel was ineffective for failing to object to evidence,
Webster must demonstrate that the objection would have been sustained and
that he was prejudiced by the failure to object. Ivy, 98 N.E.3d at 111.
[23] On this issue, Webster first asserts that his trial counsel should have objected to
the ballistics evidence that officers had collected because the evidence was
“tainted” since an employee had cleaned up the crime scene before officers
arrived. Appellant’s Br. at 24. However, Webster has not presented any
evidence to support his assertion that any employee had cleaned up the crime
scene prior to the arrival of officers. 4 Accordingly, Webster has not met his
4
In his brief on appeal, Webster claims that Drew Hall testified in a deposition that he had cleaned up blood
off the floor. But Webster did not provide a copy of that deposition to the post-conviction court, nor has he
provided a copy of that deposition in the record on appeal.
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burden on appeal to demonstrate that the crime scene was compromised or that
any evidence was tainted.
[24] Next, Webster asserts that his trial counsel should have objected to the ballistics
evidence because the State’s expert testified that he had been asked to examine
two bullet fragments even though the officers had only collected one fragment
from the crime scenes. Webster maintains that his attorney should have
objected to that testimony because the second bullet fragment “was never
documented anywhere” and because there “was no chain of custody.” Id. at
34.
[25] But even assuming for the sake of argument that a reasonable attorney would
have objected on those grounds, Webster has not shown that he was prejudiced
by his attorney’s failure to object. While the ballistics expert testified that he
had been asked to examine two bullet fragments, the actual evidence admitted
at trial only included one bullet fragment. See Trial Ex. at 34. Further, when
the expert testified about the results of his examination, he only discussed one
bullet fragment. And he testified that his findings regarding that fragment were
“inconclusive” and that he was unable to determine if that fragment had been
fired from the firearm that officers had found near Webster at the time of his
arrest. Trial Tr. Vol. II at 204. Because Webster has not demonstrated that he
was prejudiced by his trial counsel’s failure to object to the ballistics expert’s
testimony regarding two bullet fragments, Webster’s contention that his counsel
was ineffective for failing to object must fail. We affirm the post-conviction
court on this issue.
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6) Identification Testimony
[26] Finally, Webster contends that the post-conviction court erred when it
concluded that he had not received ineffective assistance from his trial counsel
when his trial counsel elicited an in-court identification of Webster.
Specifically, Webster asserts that his attorney was ineffective when he asked
Smith, a State’s witness, whether the person who had robbed him was in the
courtroom. Webster contends that that question by his attorney, which his
attorney asked despite the fact that the trial court had granted his motion to
suppress any in-court identifications of Webster, “jeopardize[d] the defense” by
allowing jurors to hear positive identifications that were “tainted by police
officers” at the show-up identification. Appellant’s Br. at 36, 37.
[27] On this issue, the post-conviction court found that Webster’s trial counsel
elicited the in-court identification of Webster as a matter of trial strategy. In
particular, the post-conviction court found that Webster’s trial counsel had
made a “tactical decision” to ask Smith to make an in-court identification of
Webster, which decision allowed trial counsel to get Smith to “ultimately
concede[] that he could not be certain of the identification.” Appellant’s App.
Vol. II at 24. We agree with the post-conviction court.
[28] At Webster’s trial, the defense strategy was to challenge the State’s evidence
that identified Webster as the person who had robbed the stores. Webster’s trial
counsel asked Smith to identify Webster as a part of that strategy. During the
hearing on Webster’s petition for post-conviction relief, Webster’s trial counsel
testified that he had asked Smith to identify Webster in order to demonstrate to
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the jury that Smith could only identify Webster “based on the show up[.]” Tr.
Vol. II at 28. Indeed, after trial counsel asked Smith to identify Webster, trial
counsel further asked Smith if he was “certain.” Trial Tr. Vol. II at 2. In
response, Smith conceded that he “can’t be certain it’s the man.” Id. at 3.
[29] It is apparent that Webster’s trial counsel elicited that identification from Smith
because counsel wanted the jury to hear that Smith could not positively identify
Webster as the person who had robbed him. Those questions are consistent
with trial counsel’s strategy to challenge the State’s allegation that Webster had
committed the robberies. Further in support of his trial strategy, Webster’s trial
counsel also asked Norris if he saw the person who had robbed him in court. In
response, Norris stated: “No.” Id. at 18.
[30] Webster’s trial counsel made a strategic decision to elicit an in-court
identification of Webster by Smith in order to show the jury that his
identification was not definitive and was based only on who he had seen at the
show-up identification instead of who he had seen during the robberies. And
Webster’s trial counsel made a strategic decision to ask Norris if he saw the
robber in court in order to show the jury that Norris could not identify Webster
as the person who had robbed him. We cannot say that Webster’s trial
counsel’s strategy to elicit an in-court identification from Smith and to attempt
to elicit an in-court identification from Norris was “‘so deficient or
unreasonable as to fall outside the objective standard of reasonableness.’” State
v. Miller, 771 N.E.2d 1284, 1288 (Ind. Ct. App. 2002) (quoting Potter v. State,
Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019 Page 19 of 20
684 N.E.2d 1127, 1133 (Ind. 1997)). We affirm the post-conviction court’s
judgment on this issue.
Conclusion
[31] In sum, the post-conviction court properly denied Webster’s freestanding claims
that the trial court had abused its discretion because those claims are not
available for post-conviction review. And the post-conviction court did not
clearly err when it determined that Webster had not received ineffective
assistance from his trial counsel. We affirm the post-conviction court’s denial
of Webster’s petition for post-conviction relief.
[32] Affirmed.
Bailey, J., and May, J., concur.
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