Court of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 1 of 35 A TTORNEY FOR A PPELLANT Meggan E. Smith Indianapolis , Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Evan M. Comer Andrew A. Kobe Deputy Attorneys General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA
Anthony T. Williams , Appellant

- Petitioner , v. 

### State of Indiana , Appellee

- Respondent. December 21, 2020 Court of Appeals Ca se No. 20A

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- 998 Appeal from the Lake Superior Court The Honorable Salvador Vasquez, Judge The Honorable Kathleen Sullivan, Magistrate Trial Court Cause No. 45G01

- 1807

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- 10

Riley , Judge .Court of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 2 of 35 

### STATEMENT OF THE CASE
[1] Appellant

- Petitioner, Anthony Williams (Williams), appeals the post
conviction court’s denial of his petition for post
- conviction relief

.
[2] We affirm

. 

### ISSUES
[3] Williams presents th is court with two issues, which we restate as: (1) Whether he was denied the effective assistance of T rial C ounsel due to he r cr o ss - examination of a witness that opened the door to inculpatory evidence ; and (2) Whether he was denied the effective assistance of A ppellate C ounsel who chose not to challenge the trial court’s admission of the inculpatory evidence

. 

### FACTS AND PROCEDURAL HISTORY
[4] In the fall of 2013, Aja Jester (Jester) spent time with her friend Damian Reedus (Reedus), who m she would occasionally lend her white passenger van. Reedus was almost always accompanied by his friend Williams. Acquaint ances of Reedus and Williams described the closeness of their friendship as being like brothers. On December 1, 2013, Jester agreed to lend Reedus her van. Jester, Reedus, and Williams spent time together on December 1, 2013, after which Reedus and Williams dropped Jester off at her home in Gary, Indiana. Reedus had promised to return the van to Jester by 5:00 p.m. that day , but he and Williams did not arrive at Jester’s home until the early morning hours ofCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 3 of 35 December 2, 2013. Jester drove Reedus and Williams back to Reedus’ house, stopping for gas along the way. Reedus was sea ted in the front passenger seat, and Williams was seated in a captain’s chair directly behind Jester. After they reached Reedus’ home, Williams stated that he had changed his mind and wished to be driven to his own home.

[5] Shortly after Jester pulled away to drive the short distance to Williams’ home , she heard two gunshots as Williams shot Reedus twice in the head , killing him

. She turned and asked Reedus what she had heard. Receiving no response, Jester turned to look at Williams. Williams then shot J ester in the neck

. Jester was gravely wounded but did not die. Jester managed to put the van in park. O ther facts pertaining to Williams’ offenses as found by this c ourt on direct appeal are as follows: Williams then pulled Jester out of the van, straddled her, pointed the gun at her face, and told her she h ad to die because she had seen his face. Although Williams pulled the trigger twice, the gun failed to fire. Jester then managed to run away, and Wi lliams drove away in the van.

Williams v. State , 86 N.E.3d 185, 186 (Ind. Ct. App. 2017), trans. denied

. Jester ran to a nearby home, where she encountered Andrew Moore (Moore) and called 911. In her 911 call, Jester identified Williams as the person who had shot her.

[6] Later that morning, Reedus’ friend Cassandra War mack (Warmack) and the mother of one of his children, Shaumbria Samuels (Samuels) , picked upCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 4 of 35 Williams so that they could search for Reedus together. Samuels spotted Jester’s van abandoned with Reedus’ body slumped over in the front passenger seat
. Williams placed a call to 911 but left before the police arrived

. Warmack went to the police station to provide a statement. While she was waiting for officers to interview her, Williams calle d her on her cell phone

. During the call, Wi lliams initially denied being with Jester and Reedus. When Warmack mentioned that Jester had told the police that Williams had pumped gas into her car just before the shooting, Williams responded that Jester was lying and that she had pumped her own gas.

[7] Jester’s van was searched. No fingerprints of evidentiary value were found inside or ou tside the van , and Williams’ DNA was not found on any of the items recovered from the van. Four spent shell casings from a .38 caliber weapon were found in the van. Beginning at 6:42 a.m. on December 2, 2013, Jester’s sister, Tasharra Jester (Tasharra) , received a series of phone call s from Williams

. In one call, Williams simply whispered , “I’m sorry.” (Tr anscript Vol. XI , p. 1 80 ). In another call, Tasharra asked Williams why he had killed her sister, and Williams responded, “Your sister not dead [sic]

. ” (Tr. Vol. XI , p. 185).

[8] On December 3, 2013, following neck surgery , Jester was released from the hospital and gave a statement to the lead detective , Lorenzo Davis (Detective Davis) of the Gary Police Department ( GPD ) , in which she identified Williams as the person who had shot her and Reedus. Jester reporte d that Williams had shot her with a gun that had a cy l i nd e r or circular part and that , after the gunCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 5 of 35 jammed, he had poured the bullets from the gun out into his han d. On December 4, 2013 , Williams contacted his acquaintance Stephen Johnson (Johnson) and asked if he could stay with him. Johnson declined but found Williams a room at the Mos l ey Hotel in Gary and dr ove him there. Before Williams got into Johnson’s car , Johnson asked Williams if he had any weapons. Williams denied that he was armed, and Johnson drove him to the hotel. Upon arrival, Williams told Johnson that he had no identification, so Johnson used his own identification to rent a room for Williams. Johnson escorted Williams to the rented room , where he saw that Williams had a small black gun. Although Johnson was upset that Williams had lied to him about being armed, he asked Williams if he was planning on selling the gun. Williams told Johnson, “ No, y ou don’t want that one.” (Tr

. Vol. XI , p. 1 08 ).

[9] When Detective Davis initially made telephone contact with Williams, he denied being with Reedus

. Detective Davis uncovered surveillance footage of Reedus and Williams entering a bar in Gar y before Reedus was shot

. Both men appeared to be highly intoxicated. Reedus dropped a large wad of money which Williams picked up and returned to him

.
[10] On December 5, 2013, the State filed an Information, charging Williams with Reedus’ murder, the atte mpted murder of Jester, carjacking, aggravated battery, battery by means of a deadly weapon, battery resulting in serious bodily injury, and criminal recklessness. W illiams was subsequently located by law enforcement at the Mos l ey Hotel . On December 6 , 2 013, officers of the G PD ’s SWAT team, working in conjunction with deputies of the U.S. Marshal’sCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 6 of 35 Service, breached the door of Williams’ hotel room and located him inside. After Williams was in custody, Detective Davis left the scene to apply for a search warrant for the hotel room. After Detective Davis left the hotel but before the search warrant was procured, a black semi

- automatic .38 caliber handgun was found under the mattress in Williams’ room. After the search warrant was pr ocured and Detective Davis learned of the handgun , he called crime scene investigator Michael Equih u a ( Detective Equihua) to the hotel solely to recover the handgun found in Williams’ hotel room and to take photographs of the hotel room scene , which Detective Eq uihua did

. Williams’ identification and cell phones were found in the hotel room. On December 7, 2013, Detective Davis interviewed Williams, who stated that h e had been consuming alcohol and had no memory of the relevant timeframe. Despite his lack of m emory, Williams adamantly maintained that he had not killed Reedus.

[11] While Williams was housed in the jail in Lake County , he spoke to fellow inmate Kent Carr (Carr) three times about witness tampering. Although Williams never mentioned a specific name, he asked Carr what would happen if the female star witness in his case did not attend his trial or came up missing. Williams told Carr that he had a friend “finessing” the woman. (Tr. Vol. XI , p. 69). While Williams was at the jail, a letter was found during an administrative search of his cell in which he had written the following : I need you to stand on the bird who’s singing. Feel me? Last thing is 2 nite. I rather for you 2 game her and get some paper outta tha bi tch. Convince her not to come to trial and recant her statement. Do what you got to do so she will not show and soCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 7 of 35 she will not be able 2 be contacted when it’s time to go to the box. (Tr. Vol. X , p. 92). After this letter was intercepted, Williams’ ja ilhouse writing privileges were revoked. Thereafter, Williams asked inmate Jason Kidd (Kidd) for writing materials. Williams told Kidd about the first letter that had been found and stated that the “little bird” was the only strong evidence the State had against him. (Tr. Vol. XII , p. 59). Williams commented to Kidd that “he had already

. . . tried to whack her , but he fucked up and hit her in the neck.” (Tr. Vol. XII , p. 59). A second letter sent by Williams was intercepted by jail personnel in which Williams mentioned his then

- current trial date and told the addressee that “I need you to stop or finesse the lil bird

. . . Just know if you perform properly for me, I’ll return the favor. ” (Tr. Vol. X , pp. 93

- 94).

[12] On February 27, 2015, t he State ente red into a plea agreement with Williams whereby he would plead guilty to the murder and attempted murder charges and would receive concurrent terms of fifty

- five and thirty years, respectively. On April 10, 2015, after hearing victim impact testimony from Jester, the trial court rejected Williams’ plea agreement. The trial court observed that he was “not comfortable on the 30 years concurrent term, because that give s Mr. Williams a pass for shooting [Jester].” Id . at 187.

[13] On July 7, 2015, Trial Counsel filed a motion to suppress the handgun that had been found in Williams’ hotel room , arguing that it had been found pursuant to an illegal warrantless search

. On July 31 , 2015, after a hearing, the trial court denied the motion to suppress. As part of its ruling that the gun evidence wasCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 8 of 35 admissible, t he trial court found that a U.S. Marshal had lifted the mattress and discovered the handgun , not an officer of the G PD or the Lake County Sheriff’s Department ; Detective Davis had no knowledge o f the gun when he applied for and was granted the hotel search warrant ; and there was no police misconduct on the part of the G PD to be deterred through application of the exclusionary rule

. The trial court granted Williams’ request to certify its order d enying his motion to suppress for interlocutory appeal, but this c ourt declined to accept jurisdiction. On January 11, 2016, a fter the denial of the motion to suppress, Trial Counsel deposed several officers regarding the discovery of the handgun and rece ived discovery of dispatch calls made during the investigation. Trial Counsel filed a second motion to suppress the handgun evidence , arguing that the handgun had actually been found by an officer of the GPD . On March 3, 2016, the date set for a hearing on Williams’ second motion to suppress the handgun evidence, Trial Counsel withdrew the motion on Williams’ behalf based on the State’ s agreement not to seek to admit the handgun evidence at trial.

[14] On April 4, 2016, the same trial court judge who had rejected Williams’ plea agreement convened Williams’ first jury trial. On April 13, 2016, the trial court found that the jury was deadlo cked and declared a mistrial. On September 8, 2016, Williams mov ed for a change of judge. The trial court denied Williams’ motion. After Williams’ mistrial, the State obtain ed DNA testing result s showing that the blood of Andre Woods (Woods), an associa te of Reedus and Williams, was recovered from Jester’s van.Court of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 9 of 35 [15] On November 28, 2016, the trial court convened Williams’ second jury trial , which lasted a total of ten days

. Trial Counsel pursued a defense strategy of calling Jester’s credibility into quest ion , highlighting what Trial Counsel argued was an incomplete and ineffective investigation, and suggesting that others, including Woods, could have been the culprit. Moore testified about encountering Jester on December 2, 2015. Jester testified that Wi lliams shot her and Reedus and identified him in open court. Trial Counsel cross

examined Jester regarding inconsistencies among her police statement, her deposition, her first trial testimony, and her second trial testimony regarding the details of the t iming of Williams’ ‘you saw my face’ statement, whether she jumped or was pulled from her van, whether Moore had been asleep or standing when she encountered him, and her varying descriptions of the gun as a revolver or a semi

- automatic, among other topics

. The coroner testified that Reedus had been shot twice in the head . Both of those bullets were recovered from Reedus’ body. Reedus had also been wounded by either one or two bullets on his left and right thigh

.
[16] After the coroner, four other officers involved in the investigation and evidence collection testified and were cross - examined at length by Trial Counsel , particularly about items of evidence that could have been collected, or testing that could have been done, but were not. Trial Counsel’s cr oss - examination of
e vidence technician Captain Milan Trisic (Captain Trisic) , who processed Jester’s van at the police garage , was re presentative of her style and the breadth of questioning . After Captain Trisic acknowledged that he had taken noCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 10 of 35 measurements in the van, Trial Counsel asked him individual questions about whether he had taken measurements of the angles of the van seats as they were found, the distance between the last bench s eat of the van and the front seat, or between the bucket seats. After showing Captain Trisic photographs of the interior of Jester’s van , which was strewn with trash and Jester’s family’s possessions, Trial Counsel individually questioned him about a beer cap, a pack of cigarettes, a straw, a wrapper in the door panel of the front passenger side, a possible CD case holder, a green cup, a cup next to the green cup, a cigarette butt, the location of the shell casings in the van, a blue and orange hat, a cell phone which Trial Counsel confirmed with the witness had not been swabbed for fingerprints or DNA , a soft drink can, and a folder containing papers found in the driver’s side door

. Trial Counsel also questioned him about the fact that police procedure ha d not been followed when moving the van to the police garage and about the circumstances surrounding the collection of a shell casing which tended to show that it had been collected in an unstandardized manner.

[17] The State’s eighth witness was Detective Eq uihua. D uring her direct examination of Detective Equihua , the Deputy Prosecutor honored her agreement not to elicit any testimony regarding the gun found in Williams’ hotel room. On cr oss - examination, Trial Counsel questioned Detective Equihua at length about items in Williams’ hotel room and areas and items that were not searched, recovered, fingerprinted, or tested for DNA, including a bag on the nightstand, a black bag on the refrigerator, a pizza box, the remoteCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 11 of 35 control, the nightstand, the room’s dr esser drawers, and the bathroom. The following exchange then took place:
Trial Counsel: Okay. Now, if I understand you correctly. It’s your testimony that you, in fact, didn’t do any

– didn’t do any of those things. And I mean

– by that, I mean looking inside the drawers or inside of bags or anything like that because you had been advised of two different things, one, that a determination had already been made as to who had been in the room? Det. Equihua: Correct.
Trial Counsel: And then the second reason was because Detective Davis didn’t ask you to? Det. Equihua: No, ma’am. I was just instructed to take the photographs inside the room and that’s what I did.
Trial Counsel: Okay. So certainly if there was any evidence of exculpatory value

– you understand what I mean by that? (Tr. Vol. VII , pp. 39

- 40). The Deputy Prosecutor objected , and, outside the presence of the jury, argued that Trial Counsel was misleading the jury by creating a false impression th at Detective Davis had directed Detective Equihua to perform a general search of the hotel room when Detective Equihua had o nly been called to the scene to collect the handgun and take pho tographs. The Deputy Prosecutor had held her objection until she felt that Trial Counsel was speculating before the jury about places evidence might have been found, such as the bathroom and the dresser drawers

. It was the State’s position that TrialCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 12 of 35 Counsel had opened the door to the gun evidence. In response, Trial Counsel argued that she had not opened the door through her questioning , as she had pursued similar lines of questioning throu gh each crime scene investigator and her questions were merely meant to show that Detective Equihua had discretion in what evidence to collect from the hotel room . The trial court ruled that Trial Counsel had created a misleading impression about the natu re of Detective Equihua’s duties at the hotel scene , opening the door to evidence that the gun was found in the hotel room.

[18] The parties then argued regarding the limits of the remedy necessary to correct the misimpression, with the Deputy Prosecutor argu ing that ballistics testing evidence was also admissible following the admission of evidence that the gun was found and Trial Counsel argu ing for the evidence to be limited to the fact that Detective Equihua had been called to the hotel to collect a gun fr om Williams’ room. During the extensive argument on the scope of the remedying evidence, Trial Counsel requested an evidentiary hearing on the second motion to suppress the handgun because , she a rgued , without such a h earing, “ [t] here is nothing for the C ourt of Appeals

– when we talk about whether this is a reversible issue or not, there’s nothing for them to look at.” (Tr. Vol. VII , p. 73). The trial court denied the motion for a suppression hearing. Trial Counsel represent ed that she would make an offer of proof with witness es but did not do
so. Trial Counsel moved for a mistrial, which motion was denied. After hearing multi

- part, extensive argument on remedy evidence , the trial court further ruled that evidence concerning ballistics testing done on the gun wasCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 13 of 35 also admissible, as not a llowing that evidence would create a second misimpression before the jury that the State had failed to investigate the gun and its possible link to the offenses. When the cross

- examination of Detective Equihua conti nued, Trial Counsel questioned him about whether he had been called to the hotel to recover a weapon and if searching other places in the hotel room would have been to find other evidence apart from the gun. Trial Counsel also questioned Detective Equihua at length about many items that could have had DNA or other evidence on them that were not recovered from Jester’s van, another scene he had been involved in searching and documenting.

[19] After Detective Equihua’s and the SWAT team leader’s testimony was p resented to the jury, Detective Davis testified and was cross

- examined by Trial Counsel for nearly two days regarding the details of the investigation. Trial Counsel probed Detective Davis about the fact that he had los t his detective ’s file for the case which contained the cell phones found in Williams’ hotel room, the emergency warrants he used to procure preliminary cell phone data, and items which he had not turned over to the State or the defense . Trial Counsel also posed questions about avenues of e vidence which Detective Davis had not explored, including , among many others, attempting to procure surveillance footage from businesses around the scene of the shooting , the gas station where the group stopped prior to the shooting, or the bar where Reedu s and Williams had been before the shooting ; collecting clothing from Jester and others ; canvassing around Moore’s home ; obtaining a registration slip from the Mosley Hotel ; or obtaining Williams’ cell phone GPS information. Trial Counsel alsoCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 14 of 35 inquired why Detective Davis had returned Jester’s cell phone, which had been found in her van, without searching it ; why he had not investigated the inconsistencies in the details of Jester’s statements or obtained a copy of her 911 call ; why he had not followed up on information he gleaned from Warmack’s recorded statements when she was alone awaiting her police interview and Williams called her ; and why he had not investigated Samuel s or any of the other people Reedus had reportedly been with prior to hi s murder

. Detective Davis also admitted on cross

- examination that he used the wrong VIN number on the search warrant application for Jester’s van and that there was a discrepancy on t he scene login/logout sheet about what time he left the scene

.
[20] Williams’ police interview was published to the jury during Detective Davis’ testimony

. T he two letters Williams wrote from jail were also admitted , and a handwriting expert concluded that it was probable that Williams had written them

. After testimony from the fingerprint examiner and a medical doctor, Trial Counsel continued to argue that the trial court should not admit any ballistics testimony, and she filed a motion to reconsider the tria l court’s ruling allowing that evidence to come in which the trial court denied. After the presentation of the State’s DNA evidence, the Deputy Prosecutor offered the testimony of the State’s ballistics expert , Lie utenant Henry Hatch (Lieutenant Hatch)

. Trial Counsel objected to the admission of the ballistics evidence but did not offer any specific grounds for her objection. Testing showed that one of the bullets recovered from Reedus’ body and all of the four spent casings found in the van were fired b y the handgun found in Williams’ hotel room.Court of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 15 of 35 Lieutenant Hatch was un able to conclude that the other bullet recovered from Reedus’ body was fired from that gun, but he was certain that the bullet had been fired from a .38 caliber firearm

. Testing also sho wed that , consistent with Jester’s testimony, one of the bullet s in the magazine of the gun found in Williams’ hotel room had been struck by the firing pin of the gun but had not fired

. After the presentation of the ballistics evidence, Carr, Johnson, Tasharra, Warmack , and Kidd testified about their conversations and interactions with Williams

. During Warmack’s testimony , Trial Counsel procured a ruling from the trial court that evidenc e that Woods’ car was parked outside Reedus’ house on the morning of December 2, 2013, was admissible.

[21] During the defense’s case

- in

- chief, Trial Counsel presented additional evidence tending to show that the State had not conducted a professional investi gation , Williams had called 911 when he, Warmack, and Samuels had found the van and Reedus’ body, the jailhouse conversations Carr and Kidd had testified to would have been impossible if jail policies had been followed , and that Woods’ car had been left in front of Reedus’ home. During her closing remarks, the Deputy Prosecutor relied upon Jester’s first

- hand testimony, the handgun and ballistics evidence , Williams’ jailhouse letters , and his c onversations with Kidd and Carr in arguing Williams’ guilt. Tr ial Counsel emphasized the lack of thoroughness in the investigation , attacked Jester ’s , Kidd ’s , and Carr’s credibility, and argued that Woods could have committed the offenses. Trial Counsel acknowledged that a gun had been found in Williams’ hotel room butCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 16 of 35 argued to the jury that fact did not make a definitive case for his guilt because the ballistics evidence c ould not detect who fired a gun.

[22] The jury deliberated for approximately four hours and asked one question unrelated to either the murder or the attempted murder charges. The jury found Williams guilty on all counts. The trial court entered judgment of conviction only on the murder, attempted mur der, and carjacking verdicts. On January 12, 2017, the trial court sentenced Williams to an aggregate sentence of 120 years.
[23] Williams pursued a direct appeal of his convictions . Appellate Counsel presented one argument on appeal, namely, that the trial court erred when it denied Williams’ motion for change of judge between his first and second trials

. On October 13, 2017, another panel of this c ourt concluded that Williams’ motion for change of judge had not been timely filed and that the trial court j udge was not required to recuse him self sua sponte because he had not demonstrated any actual bias or prejudice against Williams in rejecting the plea agreement. Williams , 86 N.E.3d at 189. Accordingly, t he c ourt affirmed Williams’ convictions. Id

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[24] Wi lliams file d a pro se petition for post

- conviction relief which was amended on March 12, 2019, after P ost
- c onviction C ounsel appeared . In his petition, Williams alleged that Trial Counsel was ineffective for opening the door to the handgun evidence and Ap pellate Counsel was ineffective for failing to challenge the trial court’s ruling admitting the handgun and ballistics evidenceCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 17 of 35 in response to Trial Counsel opening the door . On June 20, 2019, the post

conviction court held a hearing on Williams’ petition. The post

- conviction court took judicial notice and/or admitted into evidence the record on direct appeal of Williams’ second jury trial

. Post

- conviction Counsel offered into evidence the transcripts of Williams’ mistrial, but the State objected on relevancy grounds. The post

- conviction court sustained the State’s objection, excluded the mistrial transcripts, but ultimately allowed Williams to file the mistrial transcript s as an offer of proof in the post

- conviction proceedings.

[25] Trial Counsel testified at the post

- conviction hearing. Trial Counsel , who was a former deputy prosecutor, had represented defendants in over forty felony trials, ten of which were murder trial s. Trial Counsel had filed the second motion to suppress the handgun evidence after deposing officers involved in the investigation and after concluding that there was evidence contradicting the trial court’s suppression finding that a U.S. Marshal had fo und the gun at issue. Trial Counsel testified that her trial strategy had been to demonstrate to the jury that there was insufficient evidence that Williams had been the shooter and to highlight an allegedly incomplete and inadequate investigation by law enforcement. She had intended her cross

- examination of Detective E quihua to demonstrate to the jury that there had been multiple piece s of evidence in the motel room that had not been collected or investigated. According to Trial Counsel, “ [ a ] lot” of he r strategy was to attack the police investigation, “so it really played into our defense.” (PCR Transcript p. 38). Trial CounselCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 18 of 35 acknowledged that “ we did not have a ruling on the second hearing, there was nothing in the record to preserve the appeal rig ht.” (PCR Tr. p. 39).

[26] Appellate Counsel, who had been practicing law since 1975, also testified at the post
- conviction hearing. During his time in private practice and his tenure with the public defender’s office since 2004 , Appellate Counsel had prose cuted between fifty and 100 appeals. Appellate Counsel had assisted Trial Counsel during the second trial in craft ing a strategy to address the opening of the door to the handgun evidence. After Williams was convicted and Appellate Counsel received the a ppeal, he reviewed the record and determined that the issues of whether Trial Counsel had opened the door and whether the trial court ’s admission of the handgun evidence had exceeded the scope of the evidence necessary to remedy the opening of the door had not been preserved. Appellate Counsel based that conclusion on his determination that , because Trial Counsel had withdrawn the second motion to suppress, there was no trial court ruling that the handgun evidence was inadmissible; the State had not conced ed that the handgun evidence was constitutionally infirm, but, rather, had agreed not to introduce the evidence out of ethical concerns; after the trial court had denied a hearing on the second, in

- trial motion to suppress, Trial Counsel had offered to mak e an offer of proof but then did not; and Trial Counsel had argued in the trial court that without a ruling the issue would not be preserved for appeal, a position that Appellate Counsel felt he could not reverse on appeal. Appellate Counsel had also cons idered the facts that Trial Counsel had never re

- asserted the grounds for the first motion to suppress or incorporated any of the evidenceCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 19 of 35 from the first motion to suppress into the trial record and that, when the cross

examination of Detective E quihua fin ally resumed, Trial Counsel had questioned him in depth about the handgun, which Appellate Counsel thought weighed in favor of waiver. Lastly, Appellate Counsel’s review of the trial record revealed that, when the State offered photographs of the handgun during
re - direct examination of Detective E quihua , Trial Counsel had not objected on specific grounds. It was Appellate Counsel’s opinion that the additional evidence Trial Counsel had developed from deposing the officers involved in the investigation abo ut who found the handgun and receiving discovery about radio dispatches contemporaneous to the discovery of the handgun needed to be presented in an offer of proof in order to preserve the issue.

[27] On April 7, 2020, the post

- conviction court denied Williams’ petition. As to Williams’ claim that Trial Counsel had been ineffective, the post

- conviction court found that Williams had failed to show that Trial Counsel’s pe rformance fell below an objective standard of reasonableness given Trial Counsel’s experience as a trial attorney, her vigorous cross

- examination of the State’s witnesses in furtherance of her trial strategy to show the insufficiency of the evidence and poor police investigation, her stre nuous efforts to argue to the trial court that she had not opened the door to the handgun evidence, and her efforts to preserve the issue of the admission of the handgun evidence for appeal. The post
- conviction court found that Williams had also failed to demonstrate that he had been prejudiced by Trial Counsel’s performance in that other substantial evidence supported his guilt, namely the testimony of Jester, Tasharra ,Court of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 20 of 35 Johnson, Carr, and Kidd as well as evidence that Williams had written the

“ stand on th e bird” and “ last thing is 2 nit e ” letter. (Tr. Vol. X, p. 92). Given this evidence, the post

- conviction court concluded that Williams had failed to show that, despite the claimed error by Trial Counsel, the outcome of his trial would have been different . The post

- conviction court additionally rejected Williams’ argument that the fact that his first trial had resulted in a mistrial should be considered as evidence of prejudice resulting from Trial Counsel’s performance because there was no evidence regar ding why the jury failed to reach a decision and, thus, any reasons suggested by Williams or the State were purely speculative.

[28] The post

- conviction court also denied Williams relief on his ineffective assistance of appellate counsel claim, concluding tha t Williams had failed to make the required showings that Appellate Counsel’s performance was below professional norms or that Williams had been prejudiced . In support of its performance conclusion, the post

- conviction court found that Appellate Counsel wa s experienced , had reviewed the trial record , and had made the decision that the only viable issue for direct appeal was the change of judge issue. The post

- conviction court found that Appellate Counsel was aware of the handgun evidence issue but that App ellate Counsel had determined that the issue had not been properly preserved for appeal. In support of the prejudice prong of its analysis, t he post

- conviction court found that even if the handgun evidence issue had been properly preserved and challenged on appeal, the outcome of Williams appeal would not have been different because there wasCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 21 of 35 nothing in the record suggesting that the trial court had abused its discretion in admitting the evidence. The post

- conviction court also found that, due to the subs tantial evidence of Williams’ guilt apart from the handgun evidence, any error in the admission of the handgun evidence would likely been found to have been harmless on direct appeal.

[29] Williams now appeals. Additional facts will be provided as necessary. 

### DISCUSSION AND DECISION I

. Standard of Review [30] Williams contends that the post

- conviction court erred when it concluded that he received the effective assistance of trial and appellate counsel. P etitions for p ost
- conviction relief are civil proceedings in which a petitioner may present limited collateral challenges to a criminal conviction and sentence. Weisheit v. State , 109 N.E.3d 978, 983 (Ind. 2018). In such a proceeding, the petitioner bears the burden of establishing his cla ims by a preponderance of the evidence. Id . When a petitioner appeals from the denial of his petition for post

- conviction relief , he stands in the position of one appealing from a negative judgment. Hollowell v. State , 19 N.E.3d 263, 269 (Ind. 2014). T o prevail on appeal from the denial of post
- conviction relief , the petitioner must show that the evidence “as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the [PCR] court.” Id . In addition, where a post
- conviction co urt makes findings of fact and conclusions of law in accordance with Indiana Post

Conviction Rule 1(6), we do not defer to its legal conclusions, but we willCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 22 of 35 reverse its findings and judgment only upon a showing of clear error, meaning error which leaves u s with a definite and firm conviction that a mistake has been made. Id

. II

. Strickland [31] We evaluate ineffective assistance of trial and appellate counsel claims under the two

- part test articulated in Strickland v. Washington , 466 U.S. 668 (1984). To pr evail on such a claim, a petitioner must show that “ 1) his counsel’s performance was deficient based on prevailing professional norms; and 2) that the deficient performance prejudiced the defense. ” Weisheit , 109 N.E.3d at 983 (citing Strickland , 466 U.S. at 687). In order to demonstrate sufficient prejudice, the petitioner “ must show that there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. ” Id . (citing Strickland , 4 66 U.S. at 694). A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id . A petitioner’s failure to satisfy either the ‘performance’ or the ‘prejudice’ prong of

a Strickland analysis will cause an ineffective assist ance of counsel claim to fail. Taylor v. State , 840 N.E.2d 324, 331 (Ind. 2006).
III

. Effectiveness of Trial Counsel A. Admission of Evidence [32] Before reaching the merits of Williams’ effectiveness of trial counsel claim, we first address the issue of whether the trial court abused its discretion when it excluded the transcript from Williams’ mistrial , ruling that it was irrelevant

. The admission or exclusion of evidence is w ithin the post

- conviction court’sCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 23 of 35 sound discretion ; therefore, we defer to the post

- conviction court and will not disturb its ruling unless it abused its discretion. Conner v. State , 711 N.E.2d 1238, 1258 (Ind. 1999).

[33] T he handgun evidence was not admitt ed at Williams’ first trial which ended in a hung jury, but it was admitted at Williams’ second trial that ended in guilty verdicts. Williams argues that , because the evidence presented at both trial s was largely the same apart from the admission of the h andgun evidence, the transcript of his mistrial was relevant to the consideration of whether h e was prejudiced by Trial Counsel’s performance at his second trial

. In support of his argument, Williams provides us with the following quote from our supreme court ’s decision in Dowdell v. State , 720 N.E.2d 1146, 1152 (Ind. 1999) : “The fact that the first trial ended in a hung jury suggests that, at least in the mind of some jurors, there was a reasonable doubt surrounding [defendant’s ] guilt.” At Dow dell ’s first trial on felony murder, attempted murder , and other charges , his trial counsel failed to file a timely witness list, resulting in Dowdell’s alibi witnesses being excluded. Id . at 1149. That trial ended in a hung jury. Id . at 11 50. Dowdell’ s trial counsel did not seek reconsideration of the trial court’s ruling until the morning of his second trial, and the trial court again excluded his alibi witnesses. Id

. Dowdell’s second trial resulted in guilty verdicts. Id . at 1149. Dowdell argued that his trial cou nsel was ineffective for failing to timely file a witness list and/or seek timely reconsideration of the trial court’s ruling, but the post

- conviction court denied relief, based partially on its reasoning that the fact that Dowdell’s first trial had ended in a mistrial demonstrated he hadCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 24 of 35 not been gravely prejudiced by his counsel’s performance. Id

. at 1151. Our supreme court held that this prejudice conclusion was clearly erroneous, finding the fact of a hung jury to be su ggestive that reasonable doubt existed as to Dowdell’s guilt “ at least in the mind of some jurors

. ” Id . at 1152 . However, t he Dowdell court went on to reason that additional alibi witnesses may have swayed other jurors, and that “[o]ne cannot conclude f r o m a prior hung jury that as a general proposition there is no reasonable possibility that newly presented evidence would affect the result.” Id . at 1151

- 52. Therefore, we conclude that a more full reading of Dowdell reveals that it does not stand for th e proposition , as Williams argues, that the f act that a previous trial resulted in a hung jury is always relevant to a n evaluation of prejudice under Strickland , much less that it is dispositive that prejudice has positively been established. Rather, Dowdel l ’s holding is more properly characterized as being that a lack of prejudice may n ot b e presumed by the fact of a prior hung jury.

[34] After Dowdell , our suprem e court dec ided Beattie v. State , 924 N.E.2d 643 , 649 (Ind. 2010), in which it held that Indiana appellate courts would no longer review jury verdicts for consistency. In support of its holding, the Beattie court recognized that juries may reach seemingly logically inconsistent verdicts for a variety of reasons, such as a misunderstanding of the trial court’s instructions, a choice to exercise leniency, compromise , a desire to end deliberations, to avoid all

- or - nothing verdicts , or for other reasons. Id . at 648

- 49. Adopting United States Supreme Court jurisprudence cit ing “the general reluctance to inquire into the workings of a jury, and the possible exercise of lenity,” our supremeCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 25 of 35 court held definitively that appellate courts would no longer attempt to read meaning into a jury’s acquittal on some charges but not on others by reviewing verdicts for consistency. Id . at 649.

[35] We conclude from the limited holding of Dowdell and the more recent Beattie decision that Indiana courts do not attempt to ascri be meaning to verdicts, or the lack thereof, rendered by juries in the manner suggested by Williams. A jury may fail to reach a verdict for many reasons that have nothing to do with the quantity or weight of the evidence or trial counsel’s performance , an d an y attempt to discern its reasons is mere speculation . Therefore, the si mple fact that a jury failed to reach a verdict in a prior trial , without more, is not relevan t to a determination of whether a defendant was prejudiced for purposes of a Strickland analysis

.
[36] In arguing to the contrary, Williams draws our attention to a number of cases from federal jurisdiction s suggesting that a hung jury can signal that the evidence of a case was close and, therefore, that the claimed error by counsel p rejudiced the defendant at his second trial

. However, w e observe that the Seventh Circuit has taken a different approach

. In Ford v. Wilson , 747 F.3d 944 , 953

- 54 (7 th Cir. 2014), Ford argued that he was prejudiced for purposes of a Strickland analysis in light of the fact that his first trial resulted in a hung jury and his trial cou nsel’s failure to object to a prosecutor’s remarks at his second trial was the only significant difference between the two trials. F inding that there w as at least one additio nal significant difference between Ford’s two trials because one of the State’s witness’ s live testimony from the first trial was readCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 26 of 35 to the jury at the second trial, which proved to be l ess beneficial the defendant, the Ford court observed that [t]his simply underscores the need to be cautious in assigning critical significance to the failure of a different jury, which heard different evidence and argument, to reach agreement. Moreover, a jury may hang for any number of reasons, including the id iosyncratic views of a single juror. As a result, only in close cases should the fact of a prior hung jury lead to a finding of prejudice. This is not such a case because the evidence against Ford was far too strong for us to find prejudice under Strickl and

. Id . at 954 (cleaned up). We find the Seventh Circuit’s approach as applied in Ford to be more persuasive than the cases cited by Williams because it more closely aligns with current Indiana state jurisprudence voicing reluctance to d i vine the reaso ns for a jury’s verdict.

[37] Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence[.]” Ind. Evidence Rule 401(a). Because the simple fact that a prior jury hung, without more, does not shed light on the jury’s reasons for failing to reach a verdict, it does not tend to make any prejudice flowing from a claimed error on the part of trial counsel at a second trial more or less probable. H ere, the post

- conviction court excluded the transcript o f Williams’ mistrial based on the State’s relevancy objection , which we conclude was not an abuse of its discretion.Court of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 27 of 35 B. Performance [38] Williams argu es that h is counsel’s performance was deficient because “[o]pening the door to evidence which [T]rial [C]ounsel fought vigorously pretrial to exclude fell below an objective standard of reasonableness based upon pre vailing professional norms.” (Appellant’s Br. p. 21). Thus, Williams argues that openin g the door to evidence which had previously been the subject of attempts by T rial C ounsel to suppress or exclude constitutes de facto deficient performance under Strickland

. However, in Garrett v. State , 602 N.E.2d 139 , 141

- 42 (Ind. 1992), our supreme cou rt held that trial counsel’s raising of the issue of a witness’s prior inconsistent statement during the cross

- examination of an officer resulting in the admission of th e witness’s damaging taped statement was not deficient performance, even though his tri al counsel had previously moved to suppress the witness’s statement. In reaching this conclusion, the court found that Garrett’s counsel was pursuing a strategy of attempting to convey to the jury that both the witness’s and the officer’s testimony could be untruthful. Id

. The court held that “[t]actical choices by trial counsel do not establish ineffective assistance of counsel even though such choices may be subject to criticism or the choice ultimat ely proves detrimental to the defendant.” Id . at 142.

[39] Here, Trial Counsel made a tactical choice to cross

- examine Detective Equihua about areas not searched and items not collected in Williams’ hotel room to develop Williams’ defense strategy that the i nvestigation was incomplete and ineffective. Our review of the record revealed that this was a strategy that TrialCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 28 of 35 Counsel pursued relentlessly across all the detectives, crime scene investigators , and technicians who worked on the instant investigation

. T he fact that Trial Counsel’s pursuit of the chosen defense strategy resulted in the uninten ded consequence of the admission of evidence she had previously sought to suppress did not per se render her representation defective. See i d

.
[40] Williams also arg ues that Trial Counsel ’s performance was deficient because she failed to adequately prepare for her cross

- examination of Detective Equihua

. Williams d id not raise this discrete claim in his petition for post

conviction relief, and, therefore, it is waived

. See Ind. Post

- Conviction Rule 1(8) (“All grounds for relief available to a petitioner under this rule must be raised in his original petition.) ; Koons v. State , 771 N.E.2d 685, 691 (Ind. Ct. App. 2002) (“The failure to raise an alleged error in the petition waives the right to raise that issue on appeal.”) , trans. denied

. The trial court did not enter any findings or conclusions regarding Trial Counsel’s level of preparedness for the
cross - examination of Detective Equihua, and we decline to address that claim.

[41] Williams’ last argument pertaining to Trial Counsel’s performance is that the post
- conviction court misapplied Strickland when it found that Trial Counsel had not performed deficiently because s he had vigorously cross

- examined other witnesses. Williams claims that this was a misapplication of Strickland because “counsel perf orming adequately in one regard does not prevent a finding that counsel performed deficiently in another regard.” (Appella nt’s Br. p. 22). However, “effective assistance is determined according to the whole of the lawyer’s performance and not just the strategy and performance at issue.”Court of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 29 of 35 Azania v. State , 738 N.E.2d 248, 251 (Ind. 2000)

. In addition, it is well

- settled that the nature and extent of cross

- examination is a matter of trial strategy which we do not second

- guess on appeal

. Myers v. State , 33 N.E.3d 1077, 1101 (Ind. Ct. App. 2015) , trans. denied

. As observed above, one of Williams’ line of defenses was to point out the in completeness and in effectiveness of the investigation. The post

- conviction court’s finding that Trial Counsel had vigorously cross

- examined other witnesses was relevant to its assessment of how Trial Counsel performed as a whole in pursuit of that strategy and so was not a misapplication of Strickland

. See Azania , 738 N.E.2d at 251. As such, Williams has not met his burden on appeal to establish that the post

- conviction court’s conclusion that Trial Counsel’s performance was effective was clearly
erroneous . See Hollowell , 19 N.E.3d at 269.
C

. Prejudice [42] Even if Williams had established that Trial Counsel ’s performance in opening the door to the handgun evidence was deficient , he was also required to show that “ there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.” Weisheit , 109 N.E.3d at 983 . Reviewing courts have found insufficient Strickland prejudice

even where counsel’s performance led to the admission of damaging ev idence if there was significant , additional evidence of the defendant’s guilt. In Drake v. State , 563 N.E.2d 1286 , 1288

- 89 (Ind. 1990), defense counsel had succeeded in having Drake’s admissions to his wife e xcluded from his murder trial, only to open the door to that evidence during wife’s cross - examination . The DrakeCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 30 of 35 court found that , although trial counsel’s performance had been deficient, Drake had failed to demonstrate sufficient prejudice , and no revers ible error had occurred , in light of his more

- detailed admissions made to two other witnesses

. Id . at 1289. Likewise, in the earlier case of Hill v. State , 442 N.E.2d 1049 , 1053

- 54 (Ind. 1982), our supreme court found an insufficient showing of prejudice flowing from trial counsel’s inadvertent opening the door during
cross - examination to previously

- suppressed show

- up identification evidence, where various other witnesses identified Hill pre - trial and in

- trial as the person who had committed the ro bbery at issue

.
[43] Here, the State presented significant and substantial evidence of Williams’ guilt. Jester identified Williams as the person who shot her and Reedus, and that identification did not waver through her 911 call, her post

- hospitalization i nterview with Detective Davis, her deposition, her first trial testimony, and her second trial testimony. Williams telephoned Jester’s sister Tasharra and said “I’m sorry ,” and commented that Jester was not dead, something that the jury was free to infer he would have only known at that time if he had been present when she was shot. (Tr. Vol. XI, p. 180)

. Williams made incriminating statements to Carr and Kidd, and he wrote letters attempting to ensur e that Jester did not appear for trial. Willi ams gave a contra dictory statement after he was apprehended that he had no memory of the relevant timeframe but denied shooting Reedus, and he made a statement that Jester had pumped her own gas before the shoot ing, which placed him with th e victims just prior to the offenses. In addition, Johnson testified that Williams had a firearm in his hotelCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 31 of 35 room , which was independent evidence from which the jury could infer that he possessed a weapon with which he shot J ester and Reedus. While another set of facts could have presented a closer case, g iven the quantum and quality of the other evidence indicating Williams ’ guilt , we cannot conclude that there was a reasonable probability that the jury’s verdict would have been different without t he admission of the handgun evidence or that the post

- conviction court’s co nclusion in this regard was clearly erroneous

.
[44] In arguing otherwise, Williams first conten ds that “the post

- conviction court erred in not giving any weight to the prior hung jury.” (Appellant’s Br. p. 23). As we have already found that the bare fact that a prior trial resulted in a hung jury is not relevant to a trial court’s determination of prejudice under Strickland , we find no clear error in the post

- conviction court’s refusal to accord it weight in its analysis.

[45] Williams further argues tha t even without consideration of the prior hung jury, he established that he was prejudiced by Trial Counsel’s opening of the door to the handgun evidence because th at evidence was especially strong and the State’s case was weak. However, in order to preva il on appeal, Williams was required to demonstrate that the evidence “as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the [PCR] court.” Hollowell , 19 N.E.3d at 269. Williams’ argument essentially asks us to reassess the credibility of the witnesses and the weight of the evidence, but it does not demonstrate that the evidence as a whole pointed “unerringly and unmistakably” towards a finding of prejudice. Id

. Given that Williams hasCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 32 of 35 failed to meet his appellate burde n of demonstrating a reasonable probability that the outcome of his trial would have been different absent Trial Counsel’s performance, we find no clear error in the post

- conviction court’s denial of relief. IV. Effectiveness of Appellate Counsel [46] Willia ms challenges the representation afforded by A p pellate Counsel , arguing that he “was ineffective for failing to challenge the trial court’s ruling that the State could introduce the firearm and results of testing o f the firearm in response to [T] rial [C] ounsel opening the door. ” (Appellant’s Br. p. 27). The standard of review for ineffective assistance of appellate counsel claims is the same as that for trial counsel: the petitioner must show deficient performanc e and that the deficiency resulted in prejudice to him. Hollowell , 19 N.E.3d at 269. Ineffective assistance of appellate counsel claims generally fall into three categories, namely (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Id . at 270. In order to show that appellate counsel was ineffective for failing to raise an issue on appeal, thus resulting in waiver for collateral review, a defendant must overcome the “strongest presumption of adequate assistan ce, and judicial scrutiny is highly deferential.” Reed v. State , 856 N.E.2d 1189, 1195 (Ind. 2006). In evaluating the performance prong of the Strickland standard, we determine whether the unraised issues are significant and obvious from the face of the record and whether the unraised issues are clearly stronger than the raised issues. Id . In evaluating the prejudice prong of the Strickland standard, we determine whether the issues that appellate counselCourt of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 33 of 35 failed to raise would have been clearly more like ly to result in reversal or an order for a new trial. Id . It is very rare that we find appellate counsel to be ineffective for failing to raise an issue on appeal, as the decision of what issues to raise is one of the most important strategic decisions m ade by appellate counsel. Id

. A. Performance [47] Here, Appellate Counsel chose to challenge the trial court’s denial of Williams’ motion for a change of judge after his first trial ended in a mistrial

. Appellate Counsel testified at the post

- conviction hearing that he reviewed the transcript of Williams’ second trial, was aware of the handgun evidence issue, but decided to advance the change of judge issue because the handgun evidence issue was not prope rly preserved for review. Thus , Appellate Counsel ’s choice of issue
was a strategic exercise of his professional judgment. Appellate Counsel’s judgment was reasonable given that Trial Counsel had argued to the trial court that, without an in

- trial hearing on the second motion to suppress, the suppression issue would not be properly preserved for review

.
[48] More significantly, after the trial court denied the motion for an in

- trial suppression hearin g, Trial Counsel stated her intention to make an offer of proof, presumably to present the additional discovery she had obtained and t he evidence gleaned from the depositions she took of law enforcement officers involved in the recovery of the handgun from Williams’ hotel room. There is no such offer of proof in the record, and, thus, there was no factual basis in the record for a reviewing court to assess the issue. Contrary to Williams’Court of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 34 of 35 assertions, the Deputy Prosecutor did not concede that the handgun evidence was inadmissible ; rather, she conceded only that she had ethical concerns about proceeding with the evidence

. Although Williams directs our attention to a litany of other actions taken b y Trial Counsel to address the trial court’s ruling, he ackn owledges neither Trial Counsel’s in

- trial concession that the issue was not properly preserved for appellate review n or the lack of an offer of proof regarding the basis for his second motion to suppress

. A waived issue has no persuasive appellate value and, therefore, is not “ clearly stronger ” than a nother issue. Reed , 856 N.E.2d at 1195. Given the deference we accord to the strategic decisions of appellate counsel in the choice of issue s and the waiver of Williams’ pr eferred issue, Williams has failed to overcome the strong presumption that Appellate Counsel’s performance was effective , and the post

conviction court’s findings and conclusions are not clearly erroneous

. B. Prejudice [49] Even if we were to have found that Ap pellate Counsel had rendered deficient performance in failing to present the handgun evidence issue on direct appeal, we would not reverse Williams’ convictions. In order to prevail on his claim of ineffectiveness of ap pellate c ounsel, Williams was requir ed to show that the handgun issue was “clearly more likely to result in reversal or an order for a new trial.” Id

. Jester’s consistent identification of Williams as the shooter, Williams’ apology and comment to Tasharra, his statement to Warmack placing him with the victims just prior to the shooting, Williams’ contradictory statements to Detective Davis about his memory of the relevant timeframe,Court of Appeals of Indiana | Opinion 20A

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- 998 | December 21, 2020 Page 35 of 35 Williams’ jailhouse discussions with Kidd and Carr indicating he wished to pre vent Jester from appearing at t rial, and his letters indicating the same all pointed strongly to his identity as the shooter

. The State also presented Johnson’s testimony that Williams had a small black gun in his hotel room. As we have already concluded in reaching our disposition of Williams’ effectiveness of trial counsel claim, because of th is considerable independent evidence of Williams’ guilt , there was little probability that the admission of the ha ndgun affected the outcome of Williams’ trial

. Because of this, w e reach a similar conclusion regarding the likelihood of it being a successful appellate issue

. Williams has failed to demonstrate that his chosen issue would have been more likely to result in a reversal on appeal. See id . Accordingly, the post

convict ion court’s determination that Williams was not prejudiced by Appellate Counsel’s performance was not clearly erroneous. 

### CONCLUSION
[50] Based on the foregoing, we conclude that the post

- conviction court’s determination that Williams received the effective as sistance of T rial C ounsel and A ppellate C ounsel was not clearly erroneous.

[51] Affirmed.

[52] May, J. and Altice, J. concur