dissenting
I respectfully dissent as to both issues.
I. Fundamental Error
Eubanks contends that the prosecutor’s act of calling witnesses to the stand knowing that they would invoke the Fifth Amendment was fundamental error. I agree.
The United States Supreme Court addressed this issue in Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), wherein the Court stated that in order to determine whether prejudicial error has occurred, courts should examine the particular circumstances involved in each case focusing on two factors which raise distinct grounds of error. First, error may result from prose-cutorial misconduct when the government makes a “conscious and flagrant” attempt to build its case out of inferences arising from the witness’ assertion of privilege. 373 U.S. at 186, 83 S.Ct. at 1154. Second, prejudicial error may also be committed where inferences from a witness’ refusal to testify add “critical weight to the prosecution’s case.” 373 U.S. at 187, 83 S.Ct. at 1155.
As to the first prong, the majority states that “although the prosecution knew the witnesses would invoke the Fifth Amendment, there is no evidence that the State attempted to build its case out of the inferences.” Op at 207. I disagree.
At the outset, I note that long-standing rule of law that it is error to call a witness to testify with knowledge that he will invoke the Fifth Amendment. Tucker v. *210State, 534 N.E.2d 1110, 1111 (Ind.1989). In Aubrey v. State, 261 Ind. 692, 310 N.E.2d 556, 559 (1974), our supreme court explained that the “natural, even inevitable, inference which is raised in the jury’s mind when an alleged accomplice refuses to testify is that the withheld testimony would be damaging, not only to the witness, but also to the defendant. Thus, the mere refusal to speak indelibly implants adverse inferences in the minds of jurors and reaches them in a form not subject to cross-examination.” (Emphasis in original).
Here, the prosecutor called Eubanks’ accomplices to the stand with knowledge that they would refuse to testify and invoke their Fifth Amendment right to silence. The prosecutor did not offer either witness immunity pursuant to Ind.Code § 35-37-3-1,7 and the questioning of the witnesses occurred in the presence of the jury. The only motive that the prosecutor could have possibly had for calling these witnesses was to plant adverse inferences in the minds of the jurors. Thereafter, the prosecutor made a “conscious and flagrant” attempt to build its case out of inferences arising from the witnesses’ assertions of privilege as evidenced by the fact that during closing argument, the prosecutor twice mentioned the accomplices’ failure to testify.
As to the second prong, the majority states that the “testimony did not add critical weight to the prosecution’s case.” Op at 207. Again, I disagree.
The majority relies on the fact that the State called 18 witnesses, only two of which - Beverly and Worl - invoked the Fifth Amendment. I find this reliance to be misplaced. Beverly and Worl were the only accomplices. Beverly was an eyewitness to the offense. Their testimony, or lack thereof, added critical weight to. the prosecutor’s case. The prosecutor should not be permitted to flagrantly manipulate a potential witness’ testimony.
Under the circumstances of this case, I agree with Eubanks that fundamental error occurred. I would therefore affirm the post-conviction court’s decision to vacate Eubanks’ convictions and remand for a new trial.
II. Ineffective Assistance of Counsel
I further believe that Eubanks’ counsel was ineffective for failing to object to the prosecutor’s actions in calling Beverly and Worl and failing to request an admonishment to the jury. To establish a violation of the Sixth Amendment right to effective assistance of counsel, the defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable probability that because of counsel’s errors the result of the proceeding is unreliable or unfair. Harrison v. State, 707 N.E.2d 767, 777 (Ind.1999), cert. denied, - U.S. -, 120 S.Ct. 1722, 146 L.Ed.2d 643 (2000). A “reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
First, Eubanks’ counsel was clearly ineffective for failing to object to the prosecutor’s actions in calling Beverly and Worl to *211testify. In order to establish that counsel’s failure to object was ineffective assistance of counsel, a defendant must first prove that a proper objection would have been sustained. Potter v. State, 684 N.E.2d 1127, 1132 (Ind.1997). Here, had Eubanks’ counsel objected to the prosecutor’s actions, the trial court would have been required to sustain the objection. See Tucker, 534 N.E.2d at 1110 (trial court erred in allowing witness to be called before the jury when all parties knew he would invoke the Fifth Amendment). Further, had Eubanks’ counsel requested an admonishment, the trial court would have been required to give it. See Aubrey v. State, 261 Ind. 692, 310 N.E.2d 556 (1974)(failure to admonish jury when requested constitutes reversible error). Eu-banks’ counsel’s performance was clearly deficient.
We now turn to the prejudice prong. The majority summarily concludes that Eubanks was not prejudiced because the “evidence against him was overwhelming. ...” Op at 209. I disagree with both conclusions.
First, the evidence as to Eubanks’ intent was not overwhelming. My review of the record reveals that he has consistently maintained that he did not intend to kill the victim. Rather, according to Eubanks, the gun accidentally went off when Beverly attempted to take the gun from him after they had scared the victim into confessing his infidelities. Witness Jodi Scott also testified that Eubanks told her that he had only intended to scare the victim with a gun.
Second, Eubanks was prejudiced by the prosecutor’s act. The majority has failed to consider the effect of the prosecutor’s actions on Eubanks’ possible defenses. Eubanks has consistently stated that the shooting was an accident. This defense raises a host of lesser included offenses, including voluntary manslaughter, involuntary manslaughter and reckless homicide. However, before Eubanks had the opportunity to testify and present his defense, the prosecutor undercut it by calling Beverly and Worl to the stand knowing that they would invoke the Fifth Amendment. When the jury saw accomplices Beverly and Worl refuse to testify, the inevitable inference was that their testimony would have been damaging to each of them as well as to Eubanks thereby prejudicing him.
Under the facts and circumstances of this case, I find that counsel’s performance was deficient and that there is a reasonable probability that because of counsel’s errors, the result of the proceeding was unfair. I would therefore vacate Eubanks’ convictions and remand for a new trial.
. I.C. § 35-37-3-1 provides as follows:
(a) If a witness, in any hearing or trial occurring after an indictment or information has been filed, refuses to answer any question or produce any item, the court shall remove the jury, if one is present, and immediately conduct a hearing on the witness's refusal. After such a hearing, the court shall decide whether the witness is required to answer the question or produce the item.
(b) If the prosecuting attorney has reason to believe that a witness will refuse to answer a question or produce an item during any criminal trial, the prosecuting attorney may submit the question or request to the trial court. The court shall hold a hearing to determine if the witness may refuse to answer the question or produce the item.