FILED
Dec 23 2020, 8:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Kindley Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tyre Bradbury, December 23, 2020
Appellant-Petitioner, Court of Appeals Case No.
20A-PC-620
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Respondent Hurley, Judge
Trial Court Cause No.
71D08-1801-PC-2
Weissmann, Judge.
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 1 of 14
[1] Tyre Bradbury claims his defense attorneys eased the State’s burden of
convicting him of murder by stipulating to a disputed element of the crime.
Moreover, Bradbury’s counsel failed to seek instructions on alternative offenses
with lesser sentences. Finding these shortcomings constituted ineffective
assistance of counsel, we conclude the post-conviction court erroneously denied
Bradbury’s request to vacate his convictions. We reverse and remand for further
proceedings.
Facts
[2] Bradbury was fifteen years old when his friend, 19-year-old Robert Griffin, shot
and killed a toddler while firing at a rival, L.B.. The bullets missed L.B. but hit
two-year-old J.S., who was playing in his yard. Bradbury unsuccessfully tried
to stop Griffin from shooting, and a jury convicted Griffin of murder. The State
charged Bradbury as an adult with murder as Griffin’s accomplice.
[3] During Bradbury’s trial, his attorneys stipulated to a major element of the
State’s case—the fact that the adult shooter had been convicted of murder. By
doing so, counsel admitted one of the contested elements of Bradbury’s crime.
The attorneys also failed to request a jury instruction on the lesser-included
offense of reckless homicide as an accomplice.
[4] Bradbury filed a petition for postconviction relief, claiming his counsels’
performance on these two issues was deficient and that Bradbury was
prejudiced as a result. The post-conviction court denied his petition, finding the
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 2 of 14
stipulation and the omission of lesser included offenses was strategic and,
therefore, not the product of ineffective assistance of counsel.
Discussion and Decision
[5] Bradbury raises several claims on appeal, but we find two related issues
dispositive: whether trial counsel was ineffective in stipulating as to Griffin’s
murder conviction and in failing to request a jury instruction on a lesser-
included offense. To succeed on those claims, Bradbury was required to show:
(1) counsel’s performance fell below an objective standard of reasonableness
based on prevailing professional norms; and (2) the deficiency was so
prejudicial as to create a reasonable probability the outcome would have been
different absent counsel’s errors. Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind.
2014).
[6] When appealing from the denial of post-conviction relief, the petitioner stands
in the position of one appealing from a negative judgment. Id. To prevail, a
petitioner must show the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the postconviction court.
Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). The postconviction court
in this case made findings of fact and conclusions of law in accordance with
Indiana Post-Conviction Rule 1(6). Although we do not defer to the
postconviction court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear error—that which
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 3 of 14
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) (quotation omitted).
Griffin’s Murder Conviction
[7] To convict Bradbury of murder as an accomplice, the State was required to
prove beyond a reasonable doubt that Bradbury, acting with the intent to kill his
rival, L.B., knowingly aided, induced, or caused Griffin to commit the crime of
murdering toddler J.S. Direct Appeal Appellant’s App. Vol. II p. 159.1 By
stipulating to Griffin’s murder conviction, trial counsel conceded a major
element of the State’s case: that Griffin was acting with the requisite intent for
murder when the killing occurred. Brown v. State, 770 N.E.2d 275, 281 (Ind.
2002) (holding that “conviction of an accomplice requires sufficient proof of the
underlying crime”).
[8] Trial counsel specifically testified that, absent the stipulation, the State would
have had difficulty proving Griffin’s requisite intent and that Griffin’s murder
conviction likely would have been inadmissible. PCR Tr. Vol. IV p. 20.
Counsel indicated that he entered into the stipulation because he believed the
jury was less likely to convict Bradbury if it knew “justice had been done to the
actual shooter.” Id. The dissent finds counsel engaged in a proper strategy
because acknowledging Griffin committed murder demonstrated that the
1
Although there are other ways, per the relevant statutes, to convict someone of murder as an accomplice,
this was how the trial court instructed the jury on the charge. See Ind. Code §§ 35-42-1-1 (murder), 35-41-2-4
(accomplice liability).
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 4 of 14
toddler victim’s death would not go unpunished. This is problematic for two
reasons. First, counsel admitted at the PCR hearing that acknowledging
Griffin’s intent was not a trial strategy. Moreover, counsel specifically raised the
issue of Griffin’s intent in a pretrial motion to dismiss, during pretrial hearings,
in opening argument, during discussions of instructions, in his motion for a
directed verdict, and during closing argument.
[9] We agree with Bradbury that Griffin’s intent was as central to Bradbury’s
prosecution as it was to Griffin’s. Griffin claimed both at trial and on appeal
that the State did not prove his intent to kill. Griffin v. State, No. 71A03-1504-
CR-144, *7 (Ind. Ct. App. Oct. 7, 2015). The primary issue in both the Griffin
and Bradbury prosecutions was whether Griffin intended to kill his rival, L.B.,
or just frighten L.B. by recklessly firing in his general direction when the stray
bullet from his gun struck toddler J.S. Bradbury’s jury was not bound by the
verdict of Griffin’s jury. Yet, informing Bradbury’s jury of that verdict sent the
opposite message: another jury had found beyond a reasonable doubt Griffin
fired with the intent to kill, so Bradbury’s jury must follow suit.
[10] Trial counsel’s stipulation to elements of the offense which he thought the State
would have had difficulty proving cannot be deemed reasonable. Moreover,
the stipulation wholly undercut trial counsel’s litigation strategy of establishing
Griffin did not act with specific intent to kill.
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 5 of 14
Lesser-Included Offenses
[11] Bradbury also claims his attorneys were ineffective for failing to seek lesser
alternatives to a murder conviction. According to Bradbury, he would have
been entitled to a jury instruction on reckless homicide as an accomplice to
Griffin if his counsel had sought it. See Brown, 770 N.E.2d at 280-81 (holding
that defendant charged with being an accomplice to murder was entitled to jury
instruction on reckless homicide where there was “a serious evidentiary
dispute” about the culpability of the principal actor).
[12] Counsel did not tender any lesser included offense instructions because he
thought the evidence at trial did not support them. However, trial counsel
indicated that if such evidence existed, he would have proposed such an
instruction and that any failure to do so was error. He specifically testified the
decision was not strategic.
[13] But for counsel’s stipulation as to Griffin’s murder conviction, a serious
evidentiary dispute about Bradbury’s culpability would have existed. The
Record showed Griffin and Bradbury came to the park prepared to face their
adversaries. When Bradbury saw Griffin fire in the rivals’ general direction,
Bradbury yelled for him to stop. As the dissent correctly notes, one witness
testified Griffin aimed the gun at L.B. Based on this conflicting evidence from
trial, a reasonable juror could have concluded Griffin did not intend to kill his
rival, L.B.; instead, Griffin was trying to frighten L.B. by recklessly firing the
gun in his general direction. The spray of gunfire killed the toddler, who, by all
counts, was an unintended victim. Under such circumstances, Bradbury could
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 6 of 14
have been convicted as an accomplice to reckless homicide, a lesser offense
than murder. Counsel’s stipulation that Griffin was convicted of murder
effectively foreclosed that defense.
[14] The postconviction court concluded Bradbury’s attorneys were not ineffective
in failing to request a jury instruction on lesser included offenses because the
decision was strategic. We find the evidence does not support this conclusion.
Bradbury’s counsel specifically testified that he normally seeks as many lesser
included offense instructions as the evidence will support, particularly in
murder cases. Counsel also made clear that he would have tendered a lesser
included offense instruction if the evidence against Bradbury supported it, and
any failure to do so in the presence of such evidence was counsel’s error. The
evidence does not support the post-conviction court’s finding that the decision
to omit lesser-included offense instructions was strategic.
Conclusion
[15] Based on the record, we find the performance of Bradbury’s attorneys was
deficient with respect to the stipulation and omission of lesser included offense
instructions and that but for this deficient performance, there was a reasonable
probability that the result of the proceeding would have been different. See
Grinstead, 845 N.E.2d at 1031. Therefore, the postconviction court erred by
denying Bradbury’s petition for post-conviction relief.2 Even if these errors
2
Because we find these two issues dispositive, we need not and will not reach Bradbury’s other arguments.
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 7 of 14
were the product of strategic decisions, such egregious errors may be grounds
for reversal in a post-conviction action. See State v. Moore, 678 N.E.2d 1258,
1261 (Ind. 1997), cert. denied, 523 U.S. 1079 (1998).
[16] The judgment of the postconviction court is reversed and this case is remanded
for further proceedings.
Bailey, J., concurs.
Vaidik, J., dissents with a separate opinion.
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 8 of 14
IN THE
COURT OF APPEALS OF INDIANA
Tyre Bradbury, Court of Appeals Case No.
20A-PC-620
Appellant-Petitioner,
v.
State of Indiana,
Appellee-Respondent
Vaidik, Judge, dissenting.
[17] I respectfully dissent from the majority’s conclusion Bradbury received
ineffective assistance of trial counsel. Because the post-conviction-court judge,
who also presided over the jury trial, correctly concluded Bradbury’s counsel
were not ineffective, I would affirm.
[18] A defendant who files a petition for post-conviction relief must establish the
grounds for relief by a preponderance of the evidence. Hollowell v. State, 19
N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies relief, and
the petitioner appeals, the petitioner must show the evidence leads unerringly
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 9 of 14
and unmistakably to a conclusion opposite that reached by the post-conviction
court. Id. at 269.
[19] When evaluating a defendant’s ineffective-assistance-of-counsel claim, we apply
the well-established, two-part test from Strickland v. Washington, 466 U.S. 668
(1984). Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019). The defendant
must prove (1) counsel rendered deficient performance, meaning counsel’s
representation fell below an objective standard of reasonableness as gauged by
prevailing professional norms, and (2) counsel’s deficient performance
prejudiced the defendant, i.e., but for counsel’s errors, there is a reasonable
probability the result of the proceeding would have been different. Id.
[20] Counsel is afforded considerable discretion in choosing strategy and tactics, and
these decisions are entitled to deferential review. Weisheit v. State, 109 N.E.3d
978, 983 (Ind. 2018), reh’g denied. Charles and Brendan Lahey represented
Bradbury in his trial for murder as an accomplice with a gang enhancement.
Charles has devoted the majority of his practice to criminal-defense work, and
his son Brendan has many years of experience.
[21] To be found guilty, the State had to prove the shooter, Griffin, intended to kill
L.B. when he shot at him. But the State also had to prove Bradbury acted with
the intent to kill L.B. Over the State’s objection and at the request of counsel,
and after repeated arguments before and even during trial, the trial court agreed
to instruct the jury Bradbury’s intent was an essential element of his murder
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 10 of 14
charge.3 Ultimately, counsel stipulated Griffin had been convicted of murder.
See March 28-30, 2016 Trial Tr. Vol. I p. 91. Doing so absolved the State from
proving Griffin’s intent. As Charles testified at the post-conviction hearing,
“The advantage to that was that I did not want the jury sitting there thinking
that they had to convict [Bradbury] or everybody might go free, and this child
[the unintended victim] died without anybody facing the music.” P-C Tr. Vol.
IV p. 20. In my opinion, counsel strategically argued Bradbury’s intent only. As
Charles testified:
[The shooting] was rogue action by Griffin that [Bradbury] did
not contribute to and did not join and did not
have any knowledge; if Griffin did have a specific intent that
[Bradbury] never had that intent beforehand because for Christ’s
sake he tried to stop it and the victim said that he did.
Id. at 28.
[22] The majority finds counsel’s decision to stipulate to Griffin’s murder conviction
was not reasonable because it “undercut [their] litigation strategy of establishing
Griffin did not act with specific intent to kill.” Slip op. at 5. My review of the
3
The trial court instructed the jury that to find Bradbury guilty of murder, the State must have proven
beyond a reasonable doubt that:
1) The Defendant, Tyre Bradbury
2) acting with the intent to kill [L.B.]
3) knowingly aided or induced or caused
4) Robert Griffin to commit the crime of Murder
Appellant’s Direct Appeal App. Vol. II p. 159.
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 11 of 14
record does not lead me to the same conclusion, although I admit the record
can be read as the majority reads it. Charles seemingly contradicted himself at
the post-conviction hearing. He said, as the majority indicates, that absent the
stipulation, it “would have been very hard for [the State]” to establish Griffin
had been convicted of murder. P-C Tr. Vol. IV p. 20. Further, Charles testified
he thought he had argued Griffin’s intent at trial, and indeed he argued very
limitedly Griffin’s intent during closing.4 However, Charles later said “it was
not [his] belief that [he] was going to be successful in arguing the intent of
[Griffin].” Id. at 22. And Brendan testified they were “hoping” to challenge
Griffin’s intent with evidence the child may have been killed with “an
alternative [bullet] trajectory . . . that could have taken . . . a very high arch in
the air,” but that theory “didn’t really come together after the testimony that the
shooter leveled the gun at the . . . intended victim.” Id. at 59-60. In my opinion,
the strategy of counsel was to zero in on the State’s failure to prove Bradbury’s
intent.
[23] Even assuming counsel’s strategy was not reasonable, Bradbury’s claim still
fails. He must prove there is a reasonable probability the result of his trial would
have been different. By the time of Bradbury’s trial in March 2016, another jury
had found Griffin guilty of murder, specifically finding he intended to kill L.B.
4
Counsel argued during closing, “Well, we don’t really know anything about the intent of Robert Griffin.
That’s not something that we know anything about.” March 31, 2016 Trial Tr. p. 48
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 12 of 14
Moreover, the evidence is convincing Griffin fired the gun intending to kill L.B.
Four people present at the shooting testified: L.B. and three others. None
indicated, as the majority claims, that Griffin only wanted to “frighten L.B. by
recklessly firing in his general direction.” Slip op. at 5. L.B. testified that when
he squared up with M.B., Griffin “pulled the gun out” and “shot.” March 28-
30, 2016 Trial Tr. Vol. I p. 124. According to L.B., the “bullet went pa[st]” him,
and the bullet was so close he “felt” it. Id. at 125. L.B. then ran away in a
zigzag fashion to avoid getting hit by the bullets. Another eyewitness testified
everyone “surrounded” L.B. and then Griffin shot “at” him. Id. at 202, 203. Yet
another witness said Griffin “open fired,” shooting “a lot” of bullets. March 28-
30, 2016 Trial Tr. Vol. II p. 254. The final eyewitness claimed to have heard but
not seen the shooting. As Brandon testified at the post-conviction hearing, the
evidence was not really there to believably contest Griffin’s intent. After
reviewing this record, that seems right to me. Bradbury has failed to prove there
is a reasonable probability arguing Griffin’s intent would have made a
difference in the verdict.
[24] As to the issue of failing to request a jury instruction on the lesser-included
offense of reckless homicide, Bradbury’s claim fails as well. Bradbury has not
shown the verdict would have been any different had Griffin’s intent been at
issue. Bradbury bears the burden, and he has failed to show there is a serious
evidentiary dispute as to Griffin’s intent. Charles acknowledged this reality in
his post-conviction testimony when he said they “did not submit an instruction
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 13 of 14
on lesser included offense because we didn’t think that there was any evidence
of the lesser included offense.” P-C Tr. Vol. IV p. 25.
[25] Requesting lesser-included-offense instructions demands a careful analysis by
counsel—a decision we should be reticent to second guess. Here, regarding
Griffin’s intent, counsel needed to ask themselves: (1) was there enough
evidence to credibly argue Griffin did not intend to kill L.B.?; (2) how would
this jury respond to that argument?; and (3) would this alternative argument
undermine the strength of Bradbury’s intent argument that, if accepted by the
jury, would have resulted in an acquittal? Decisions like this must be made on
the ground, not after the fact.
[26] Reasonable minds differ. And they certainly have here on the issues of whether
counsel’s decisions were strategic and whether there is a reasonable probability
the result of the trial would have been different. Because I believe this to be a
reasonable difference of opinion, I cannot say the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that reached by the post-
conviction court. I would defer to the judgment of the post-conviction-court
judge, who also presided over Bradbury’s jury trial, and affirm on these and the
other issues raised by Bradbury.
Court of Appeals of Indiana | Opinion 20A-PC-620 | December 23, 2020 Page 14 of 14
Tyre Bradbury v. State of Indiana
Combined Opinion