Court of Appeals of Indiana | Memorandum Decision 79A02-1506-PC-599 | December 22, 2015 Page 1 of 22

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Kevin R. Hewlate

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michael Freed,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

December 22, 2015

Court of Appeals Case No.

79A02-1506-PC-599

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven P. Meyer, 

Judge

Trial Court Cause No.

79D02-1201-PC-1

Bradford, Judge.

Case Summary
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[1] In 2010, Appellant-Petitioner Michael Freed was convicted of Class B felony 

robbery. Freed’s conviction was affirmed on direct appeal. Freed filed a 

petition for post-conviction relief (“PCR”) in January of 2012. On May 19, 

2015, the post-conviction court issued an order denying Freed’s petition. Freed 

then appealed, arguing that the post-conviction court erroneously determined 

that he did not suffer ineffective assistance of appellate counsel. We affirm. 

Facts and Procedural History

[2] Our opinion in Freed’s prior direct appeal, which was handed down on October 

3, 2011, instructs us as to the underlying facts and procedural history leading to 

this post-conviction appeal:

On July 6, 2008, at approximately 2:30 a.m., Freed entered a 

Village Pantry convenience store in Lafayette. The store was 

located near the intersection of Brady Lane and Concord 

Avenue. Freed wore a glove on his left hand, a hat on his head, 

and another article covering the bottom of his face. Employee 

Cora Taegel was working alone at the store. Freed brandished a 

knife and demanded that Taegel give him the money from the 

register. Taegel gave Freed $115 from the drawer. Freed fled. 

Taegel suffered a panic attack but called 911 right away. Freed 

headed north to his friend’s apartment, which was in a complex 

adjacent to the convenience store. He shed his disguise while en 

route.

Law enforcement responded. Officers located a hat and other 

clothing items in the vicinity of the Village Pantry, but Freed 

eluded police for the time being.

The robbery was caught on a surveillance tape. The tape 
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apparently did not capture Freed’s face, though it did record his 

voice.

Freed was later arrested and jailed in connection with an 

unrelated burglary/forgery. Freed and an accomplice allegedly 

broke into the residence of Alice and Menlo Pridemore and stole 

a purse containing a checkbook. Freed and his accomplice then 

went to a bank to cash forged checks.

While in jail for the latter offenses, Freed was concerned that the 

Pridemores would testify against him at trial. Freed devised a 

plan to murder them, and he sought assistance from fellow 

inmate James Scott Littrell. Littrell played along but intended to 

report Freed to authorities. Littrell falsely told Freed that he 

knew someone who could perform a murder-for-hire. Littrell 

asked Freed to put his murder request into writing.

Freed wrote a letter to Littrell’s made-up hit man. The letter 

stated in part:

I have a case with these people as witness’s and I 

hear your the man to talk to about taking care of 

problems for good. So my case will be clean at trial. 

Im in a bind because Im in jail.... If you help me, Ill 

make sure you get your money when I get out. Just 

give me a few days unless Scott can loan me the 

money right now. I really need your help.... I will do 

anything to make this problem disappear.

State’s Ex. 16. Freed attached a hand-drawn map of the 

Pridemores’ home. At the end of the letter, Freed wrote: “Check 

for an unsolved VP robbery in July of 08 at Concord and brady 

In.” Id. This statement was the equivalent of a confession to the 

Village Pantry robbery. The confession functioned as 

“insurance” or “collateral” for Littrell’s assistance in the murder 

plot. In other words, if Freed were to tell on Littrell, Littrell 

would have Freed’s robbery confession to disclose to law 
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enforcement.

Littrell turned Freed’s letter over to authorities, and Detective 

Daniel Shumaker soon met with Freed to question him about the 

Village Pantry robbery. Freed denied involvement, though he 

made various incriminating statements to Detective Shumaker 

during their interview. For example, Freed indicated that the 

store clerk was a female. Freed also asked Detective Shumaker 

how he learned of the robbery, Detective Shumaker said that he 

found out from Freed’s own mouth, and Freed then asked if 

Littrell was still in jail. Following the interview, Detective 

Shumaker obtained from Freed a DNA sample and handwriting 

exemplar.

Freed was later housed with inmate James Goodman. Freed told 

Goodman about the Village Pantry robbery and shared details 

about the crime. Freed said that he robbed a female clerk, wore a 

disguise and glove, used a knife, stole about $125, and fled to his 

friend’s apartment. He also discussed with Goodman the letter 

that he wrote soliciting a hit man and confessing to the robbery. 

Goodman passed this information on to Detective Shumaker.

Forensic technician Daun Powers analyzed DNA swabs 

collected from the hat recovered near the Village Pantry. Powers 

could not exclude Freed as a contributor to a particular DNA 

sample taken from inside the hat. Or statistically speaking, about 

five people within the Tippecanoe County population could have 

contributed to the DNA sample, and Freed’s DNA profile 

identified him as one of them.

Handwriting expert Courtney King analyzed Freed’s jailhouse 

letter. King concluded that Freed was the probable author of the 

first part of the letter, in which Freed requested assistance from 

the supposed hit man. King was less certain about the 

confession, as it looked slightly different and was likely written 

on a different backing surface. However, according to King, 

indications were that Freed authored the confession as well.
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Detective Shumaker reviewed the Village Pantry surveillance 

tape after interviewing Freed. Detective Shumaker identified 

Freed as the robber by matching Freed’s voice with the voice 

recorded on the tape.

[Appellee-Respondent the State of Indiana (the “State”)] charged 

Freed with Class B felony robbery and the lesser-included Class 

D felony theft. The State alleged that “[o]n or about July 6, 

2008, in Tippecanoe County, State of Indiana, Michael G. Freed 

did knowingly or intentionally take property, to wit: U.S. 

Currency, from another person or from the presence of another 

person, to wit: Cora Taegel, by using or threatening the use of 

force on the said Cora Taegel, or by putting the said Cora Taegel 

in fear, and Freed committed said offense while armed with a 

deadly weapon, to wit: a knife....” Appellant’s App. p. 10.[1]

****

The State called Taegel, Littrell, Goodman, King, Powers, 

Detective Shumaker, and several other investigating officers to 

testify to the foregoing events. The State introduced Freed’s 

letter into evidence over objection.

The defense challenged Littrell and Goodman’s credibility on the 

stand, eliciting their criminal records for purposes of 

impeachment. The defense also argued in closing that their 

testimony was “garbage” and should be disregarded by the jury. 

Id. at 300.

At least twice at trial, when the jailhouse letter, Pridemore 

burglary, and/or murder solicitation were being discussed, the 

court instructed the jury that

 

1

 For the purposes of this memorandum decision, references to “Appellant’s App.” refer to the appendix 

submitted in the Appellant’s direct appeal. Any reference to the appendix submitted by the Appellant in the 

instant PCR proceedings will be referred to as “Appellant’s PCR App.”
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evidence of other crimes or wrongs or acts is not 

admissible to prove the character of a person in order 

to show action and conformity therewith. It may 

however be admissible for other purposes such as 

proof of intent, knowledge, or identity. Defendant’s 

statements are admitted only for the purpose of 

proving intent, knowledge or identity as to the crimes 

on trial and are not to be considered by you for any 

other purpose. The circumstances under which the 

statements were made may only be considered in 

determining the ... reliability of the statement and not 

as independent evidence that the defendant 

committed the crimes on trial.

Id. at 126, 149. The record indicates that a similar 

admonishment was included in the court’s final instructions. See 

id. at 281-83.

Freed v. State, 954 N.E.2d 526, 528-30 (Ind. Ct. App. 2011) (brackets added).

[3] Within an hour of being sent to deliberate, the jury submitted the following 

question to the trial court: “As stated in closing argument for the Prosecutor or 

by the Prosecutor, is it a fact of law that voice recognition is sufficient testimony 

for a conviction?” Trial Tr. p. 314. Upon receiving the question, the trial court 

summonsed the parties to discuss the jury’s question and the court’s proposed 

answer. The trial court informed counsel that its research had “come up with 

four cases that indicate that the answer to that question would be yes.” Trial 

Tr. p. 314. The trial court indicated that it felt it appropriate to clarify for the 

jury and recommended either: (1) to bring the jury back into the courtroom and 

allow counsel the opportunity to discuss the relevant case law before the jury or 
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(2) to send the jury’s note back with the indication that “it is an accurate 

statement of the law.” Trial Tr. p. 315.

[4] Counsel for both Freed and the State indicated that they did not feel additional 

argument was necessary. Freed’s counsel suggested referring the jury back to 

the final jury instructions without answering the jury’s question. Counsel for 

the State indicated that he believed that it was appropriate for the trial court to 

respond to the jury’s question.

[5] In determining how to deal with the jury’s question, the trial court engaged in 

the following discussion with counsel:

[The Court]: In the Jackson case[2], their description of the 

holding of the Bane case[3]is as follows: Voice identification 

evidence is independently sufficient to sustain a conviction.

[Defense Counsel]: Again, I’m not disputing that, Your Honor, 

that there are cases supporting your position.

[The Court]: I’m thinking that perhaps --yeah---

[Defense Counsel]: ---I’m just saying that the jurors have been 

instructed already and that would be our suggestion, just to have 

them refer to the instructions.

[The Court]: I think I have to address their point of law 

because I think it is a point that is not contained in the 

 

2

 Jackson v. State, 758 N.E.2d 1030 (Ind. Ct. App. 2001).

3

 Bane v. State, 424 N.E.2d 1000 (Ind. 1981).
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instructions. And sufficiency almost never is contained in the in 

the instructions and, in fact, sufficiency instructions have been 

disapproved. Both of you agree that no further argument is 

necessary.

[Defense Counsel]: That is true.

[The Court]: So what I’m thinking that I should do is state 

this statement, which is an accurate statement of the law, which 

is that voice identification evidence is independently sufficient to 

sustain a conviction and then to say the---repeat the instruction 

you’re not to focus on any one instruction, but to look at all of 

the instructions together. All the other instruction then 

incorporate you to look at all of the evidence, you are to think 

about credibility, and things of that nature. So the particular 

instruction that I’m thinking of is the one that says you are to 

consider all of the instructions, both preliminary and final 

together. Do not single out any certain sentence or any 

individual point or instruction and ignore the others. After I say 

the answer to their question which is that voice identification 

evidence is independently sufficient to sustain a conviction.

[The State]: The State concurs.

[Defense Counsel]: We object to adding to the instructions.

[The Court]: Okay. I’m going to overrule the objection 

and instruct as indicated.... What’s 13.01. Oh yes, we’ll call that 

13.01A. That’s good. This is going to be an instruction that I 

gave them in response to their questions but it’s not---. Give a 

copy to the attorneys so that they can see what it is that I’m 

proposing to do.

[The State]: The State has no objection.

[The Court]: And do you have an additional objection to 

what has already been stated?
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[Defense Counsel]: No, Your Honor, but may I have this case 

cite to which you are referring?

[The Court]: Yes. I found four cases on the subject. The 

leading case is Bane B-a-n-e, 424 N.E.2d, 1000. That’s again cited 

in Evans versus State, 542 N.E.2d, 546[4]---

[Defense Counsel]: ---that’s sufficient.

[The Court]: ... I think that this is an accurate statement 

of the law. It answers their question. It doesn’t---and it’s not 

covered by any other instruction. I think I am obligated by the 

statute to provide a clarification on a point of law if requested by 

the jury and both parties have agreed that additional argument is 

not the appropriate way to do so. And so I will send this back to 

the jury room and I probably should sign it in doing so and we 

should keep a copy of the signed instruction for the file. Please 

make a copy and take the copy to the jury room. Okay. Thank 

you.

Trial Tr. pp. 317-21 (brackets added, emphases in original). The trial court then 

answered the jury’s question by submitting the following instruction to the jury:

Court’s Instruction No. 13.01A

Voice identification evidence is independently sufficient to 

sustain a conviction.

You are to consider all the instructions both preliminary and final 

 

4

 Evans v. State, 542 N.E.2d 546 (Ind. 1989).
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together. Do not single out any certain sentence or any 

individual point or instruction and ignore the others.

PCR Ex. A.

[6] Following jury deliberations, “Freed was convicted as charged.” Freed, 954 

N.E.2d at 530. “The trial court entered judgment of conviction only for Class B 

felony robbery.” Id. 

[7] Freed raised two issues on direct appeal: “(I) whether the trial court erred by 

admitting evidence of his unrelated burglary, forgery, and solicitation for 

murder, and (II) whether the evidence [was] sufficient to sustain his conviction 

for robbery.” Id. Upon review, we concluded that the trial court did not err by 

admitting reference to Freed’s unrelated burglary, forgery, and solicitation for 

murder. Id. at 532. We also concluded that the evidence was sufficient to 

sustain Freed’s robbery conviction. Id.

[8] On January 19, 2012, Freed filed a pro-se PCR petition. In this petition, Freed 

claimed that he suffered ineffective assistance of his appellate counsel. Freed, 

by counsel, filed an amended petition on November 4, 2014. Following an 

evidentiary hearing, the post-conviction court issued an order denying Freed’s 

request for PCR on May 19, 2015. This appeal follows.

Discussion and Decision

[9] Post-conviction procedures do not afford the petitioner with a super-appeal. 

Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a 
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narrow remedy for subsequent collateral challenges to convictions, challenges 

which must be based on grounds enumerated in the post-conviction rules. Id. 

A petitioner who has been denied post-conviction relief appeals from a negative 

judgment and as a result, faces a rigorous standard of review on appeal. Dewitt 

v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942 

(Ind. Ct. App. 1999), trans. denied. 

[10] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 

745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his 

claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); 

Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, 

a petitioner must convince this court that the evidence, taken as a whole, “leads 

unmistakably to a conclusion opposite that reached by the post-conviction 

court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without 

conflict and leads to but one conclusion, and the post-conviction court has 

reached the opposite conclusion, that its decision will be disturbed as contrary 

to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. 

The post-conviction court is the sole judge of the weight of the evidence and the 

credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). 

We therefore accept the post-conviction court’s findings of fact unless they are 

clearly erroneous but give no deference to its conclusions of law. Id.
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I. Ineffective Assistance of Appellate Counsel

[11] The right to effective counsel is rooted in the Sixth Amendment to the United 

States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The 

Sixth Amendment recognizes the right to the assistance of counsel because it 

envisions counsel’s playing a role that is critical to the ability of the adversarial 

system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S. 

668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness 

must be whether counsel’s conduct so undermined the proper function of the 

adversarial process that the trial court cannot be relied on as having produced a 

just result.” Strickland, 466 U.S. at 686. 

[12] The standard of review for a claim of ineffective assistance of appellate counsel 

is the same as for trial counsel in that the petitioner must show appellate 

counsel was deficient in his performance and that the deficiency resulted in 

prejudice. Overstreet v. State, 877 N.E.2d 144, 165 (Ind. 2007) (citing Bieghler v. 

State, 690 N.E.2d 188, 193 (Ind. 1997)).

First, an appellant must make a showing that the performance of 

his counsel was deficient. Second, the appellant must show 

adverse prejudice as a result of the deficient performance. 

Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Again, 

this Court will presume that counsel is competent, and appellant 

must present strong and convincing evidence to rebut the 

presumption. Clark v. State (1990), Ind., 561 N.E.2d 759, 763. 

Lowery v. State, 640 N.E.2d 1031, 1048 (Ind. 1994). 
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[13] Indiana courts recognize three basic categories of alleged ineffective 

representation by appellate counsel: (1) denying access to an appeal, (2) failing 

to raise an issue on appeal, and (3) failing to present an issue completely and 

effectively. See Bieghler, 690 N.E.2d at 193-95. Freed’s allegation of ineffective 

assistance falls under the second category. 

[14] The Indiana Supreme Court has noted that the failure to raise an issue on direct 

appeal can be a formidable error because of the well-established rule that issues 

that were or could have been raised on direct appeal are not available for postconviction review. See Bieghler, 690 N.E.2d at 193. Nevertheless, 

“‘[i]neffectiveness is very rarely found in these cases.’” Id. (quoting Lissa 

Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. Va. L.Rev. 1, 

25 (1994)) (brackets in original). One explanation for why ineffectiveness is 

rarely found in these types of cases is that the decision of what issues to raise on 

appeal is one of the most important strategic decisions to be made by appellate 

counsel. Id. 

“Experienced advocates since time beyond memory have 

emphasized the importance of winnowing out weaker arguments 

on appeal and focusing on one central issue if possible, or at most 

a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 

3308, 3313, 77 L.Ed.2d 987 (1983). As Justice Jackson noted,

“Legal contentions, like the currency, depreciate 

through over-issue. The mind of an appellate judge is 

habitually receptive to the suggestion that a lower 

court committed an error. But receptiveness declines 

as the number of assigned errors increases. 

Multiplicity hints at lack of confidence in any one.... 
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[E]xperience on the bench convinces me that 

multiplying assignments of error will dilute and 

weaken a good case and will not save a bad one.”

Id. at 752, 103 S.Ct. at 33133 (quoting Justice Robert H. Jackson, 

Advocacy Before the United States Supreme Court, 25 Temple L.Q. 

115, 119 (1951)). Accordingly, when assessing these types of 

ineffectiveness claims, reviewing courts should be particularly 

deferential to counsel’s strategic decision to exclude certain issues 

in favor of others, unless such a decision was unquestionably 

unreasonable. See Smith v. Murray, 477 U.S. 527, 535-36, 106 

S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986).

Id. at 193-94.

[15] The Indiana Supreme Court noted that “[i]n analyzing this sort of case, the 

Seventh Circuit, under its performance analysis, first looks to see whether the 

unraised issues were significant and obvious upon the face of the record.” Id. at 

194. “If so, that court then compares these unraised obvious issues to those 

raised by appellate counsel, finding deficient performance ‘only when ignored 

issues are clearly stronger than those presented.’” Id. (quoting Gray v. Greer, 800 

F.2d 644, 646 (7th Cir.1986) (additional citations omitted). The Supreme Court 

also noted that when completing this analysis, “the reviewing court should be 

particularly sensitive to the need for separating the wheat from the chaff in 

appellate advocacy, and should not find deficient performance when counsel’s 

choice of some issues over others was reasonable in light of the facts of the case 

and the precedent available to counsel when that choice was made.” Id.
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A. Whether Freed’s Counsel Provided Ineffective Assistance 

By Failing to Raise an Issue on Direct Appeal

[16] Freed alleges that his appellate counsel provided ineffective assistance by failing 

to argue on direct appeal that the trial court erred in answering the specific 

question posed by the jury during deliberations. In support of this allegation, 

Freed argues that the giving of the additional instruction after the jury began 

deliberating without rereading all of the previously given instructions 

constituted reversible error. Freed therefore claims that this issue was “clearly 

stronger” than the issues raised by counsel on direct appeal. Appellant’s Br. p. 

13. 

[17] Indiana Code section 34-36-1-6 provides as follows: “[i]f, after the jury retires 

for deliberation: ... (2) the jury desires to be informed as to any point of law 

arising in the case; the jury may request the officer to conduct them into court, 

where the information required shall be given in the presence of, or after notice 

to, the parties or attorneys representing the parties.” The general rule in these 

situations is that once deliberations commence, the trial court should not give 

any additional instructions to the jury. Crowdus v. State, 431 N.E.2d 796, 798 

(Ind. 1982). This rule keeps the trial court “from giving any special emphasis, 

inadvertent or otherwise, to a particular issue in the case, and thus avoids the 

possibility that the additional instruction(s) may tell the jury what it ought to do 

concerning that issue.” Id. 

[18] However, the Indiana Supreme Court has identified one exception to the 

general rule, holding as follows:
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When confronted with a question from a jury which has 

commenced deliberation, the challenge to the trial judge is to 

respond in a manner which accords with the legal requirements 

for final instructions and which is fair. The path is extremely 

hazardous for the court that would depart from the body of final 

instructions and do other than reread the final instructions in 

responding to jury questions. Such a departure will be warranted 

in only the most extreme circumstances. Brannum v. State, (1977) 

267 Ind. 51, 366 N.E.2d 1180; Cameron v. State, (1979) Ind., 383 

N.E.2d 1039. It must serve to amend the final instructions by 

adding a necessary one previously omitted or correcting an 

erroneous one, and must be fair to the parties in the sense that it 

should not reflect the judge’s view of factual matters. Hall v. 

State, (1856) 8 Ind. 439. Thus, it is only when the jury question 

coincides with an error or legal lacuna[5]in the final instructions 

that a response other than rereading from the body of final 

instructions is permissible.

Jenkins v. State, 424 N.E.2d 1002, 1003 (Ind. 1981). 

[19] In support of his argument, Freed cites to Graves v. State, 714 N.E.2d 724 (Ind. 

Ct. App. 1999). In Graves, the defendant faced numerous charges, including 

robbery. 714 N.E.2d at 725. During deliberations, the jury sent the trial court a 

note asking “Did [Defendant] have to personally take the property to be guilty 

of robbery?” Id. 

In response, the State suggested reading to the jury only an 

instruction on accomplice liability. Counsel for [Defendant], on 

the other hand, objected to providing the jury with any additional 

 

5

 A “lacuna” is “[a] missing part of something; a blank space; a gap.” BLACK’S LAW

DICTIONARY (10th ed.) p. 1006.
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instructions. He further advised the court that if it chose to 

overrule his objection and provide the jury with additional 

instructions, he believed the proper procedure would be to reread the entire set of final instructions, including any additional 

instructions. The court, over Graves’ objection, read to the jury 

only an instruction on accomplice liability.

Id. at 725-26. Upon review, a panel of this court concluded as follows:

Because of the existence of the legal lacuna in the form of the 

omitted instruction on accomplice liability, we conclude that the 

trial court properly provided the jury with the additional 

instruction. However, the trial court committed reversible error 

by failing to re-read the entire set of final instructions 

contemporaneously with the giving of the additional instruction. 

See Durden v. State, 406 N.E.2d 281 (Ind. Ct. App. 1980) 

(affirming trial court’s action of reading supplemental 

instructions to jury in conjunction with re-reading of all 

instructions); see also [Downs v. State, 656 N.E.2d 849, 853 (Ind. 

Ct. App. 1995)] (where trial court provided additional instruction 

to jury and, by agreement of parties, did not re-read all 

instructions, Court of Appeals affirmed noting that “[t]he better 

procedure would have been for the trial court to reread all of the 

instructions at the same time the supplemental instruction was 

read to the jury, a procedure specifically waived by Downs”).

Id. at 727. 

[20] However, we disagree with our colleagues’ broad conclusion that a trial court 

always commits reversible error by failing to reread the entire set of final 

instructions contemporaneously with the giving of the additional instruction 

because we find that conclusion to be unsupported by the relevant Indiana 

authority. Rather, our review indicates that while, under some circumstances, 
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such an approach might be found to be reversible error, under other 

circumstances, such an approach does not constitute reversible error. See Riley 

v. State, 711 N.E.2d 489, 492-93 (Ind. 1999) (acknowledging that while the 

generally accepted procedure in answering a jury’s question on a matter of law 

is to reread all instructions in order to avoid emphasizing any particular point, 

departure from this procedure is permitted when the jury question coincides 

with a legal lacuna in the final instructions); Downs, 656 N.E.2d at 853 (noting 

that although the better approach would have been for the trial court to re-read 

all of the jury instructions when giving a supplemental instruction to fill in the 

gap left by a legal lacuna, based on the facts presented in that case, the trial 

court did not commit reversible error by failing to do so). Review of the record 

before us in the instant appeal convinces us that the trial court’s actions below 

did not constitute reversible error. 

[21] In the instant matter, within an hour of being sent to deliberate, the jury 

submitted the following question to the trial court: “As stated in closing 

argument for the Prosecutor or by the Prosecutor, is it a fact of law that voice 

recognition is sufficient testimony for a conviction?” Trial Tr. p. 314. Upon 

receiving the question, the trial court called the parties back to court and 

discussed how the trial court intended to respond to the jury’s question. The 

trial court informed counsel that its research had “come up with four cases that 

indicate that the answer to that question would be yes.” Trial Tr. p. 314. The 

trial court indicated that it felt it appropriate to clarify for the jury and 

recommended either: (1) to bring the jury back into the courtroom and allow 
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counsel the opportunity to discuss the relevant case law before the jury or (2) to 

send the jury’s note back with the indication that “it is an accurate statement of 

the law.” Trial Tr. p. 315. 

[22] Counsel for both Freed and the State indicated that they did not feel additional 

argument was necessary. Freed’s counsel suggested referring the jury back to 

the final jury instructions without answering the jury’s question. Counsel for 

the State indicated that he believed that it was appropriate for the trial court to 

respond to the jury’s question. The trial court indicated that it believed it was 

required to answer the jury’s question because the jury’s question involved a 

matter of law not covered by the other instructions. 

[23] In determining how to respond to the jury’s question, the trial court stated the 

following:

So what I’m thinking that I should do is state this statement, 

which is an accurate statement of the law, which is that voice 

identification evidence is independently sufficient to sustain a 

conviction and then to say the---repeat the instruction you’re not 

to focus on any one instruction, but to look at all of the 

instructions together. All the other instruction then incorporate 

you to look at all of the evidence, you are to think about 

credibility, and things of that nature. So the particular 

instruction that I’m thinking of is the one that says you are to 

consider all of the instructions, both preliminary and final 

together. Do not single out any certain sentence or any 

individual point or instruction and ignore the others. After I say 

the answer to their question which is that voice identification 

evidence is independently sufficient to sustain a conviction.

****
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I think that this is an accurate statement of the law. It answers 

their question. It doesn’t---and it’s not covered by any other 

instruction. I think I am obligated by the statute to provide a 

clarification on a point of law if requested by the jury and both 

parties have agreed that additional argument is not the 

appropriate way to do so. And so I will send this back to the jury 

room and I probably should sign it in doing so and we should 

keep a copy of the signed instruction for the file. Please make a 

copy and take the copy to the jury room. Okay. Thank you.

Trial Tr. pp. 318, 320-21 (brackets added, emphases in original). The trial court 

then sent the following instruction to the jury:

Court’s Instruction No. 13.01A

Voice identification evidence is independently sufficient to 

sustain a conviction.

You are to consider all the instructions both preliminary and final 

together. Do not single out any certain sentence or any 

individual point or instruction and ignore the others.

PCR Ex. A.

[24] The trial court’s statements indicated that it believed that it was required to 

answer the jury’s question to fill in the gap left by a legal lacuna. The trial court 

offered the parties the opportunity to present additional argument to the jury, 

but both parties indicated that they did not think additional argument was 

necessary. Further, although the trial court did not reread all of the jury 

instructions to the jury, in responding to the jury’s question, the trial court did 

remind the jury that it was to consider all of the instructions together and that it 
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should not single out any certain sentence or any individual point or 

instruction. 

[25] Review of the trial court’s actions in this regard convinces us that the situation 

falls within the exception to the general rule that would require the trial court to 

reread all of the previously given jury instructions to the jury when answering 

the jury’s question. As such, we conclude that the trial court could not have 

been found to have committed reversible error in this regard. In light of this 

conclusion, we cannot conclude that the proffered issue was “clearly stronger” 

than the issues raised by counsel on direct appeal. 

[26] Further, during the evidentiary hearing on Freed’s PCR petition, appellate 

counsel acknowledged that while he was familiar with case law indicating that 

the giving of an additional instruction to the jury during deliberations could be 

found to be reversible error, he was also familiar with case law indicating the 

opposite. Appellate counsel indicated that in deciding what issues to raise on 

direct appeal, he reviewed the record, considered the potential issues, and 

determined that the challenge to the admissibility of Freed’s prior statements 

presented the strongest chance of success on appeal. 

[27] Again, the decision of what claims to raise on appeal is one of the most 

important strategic decisions to be made by appellate counsel and, upon review, 

we will not second guess appellate counsel’s strategic decision as to what claims 

to raise unless counsel’s decisions in this regard were unquestionably 

unreasonable. Bieghler, 690 N.E.2d at 193-94. Given the conflicting relevant 
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authority, coupled with our determination that the trial court did not commit 

reversible error by answering the jury’s question without rereading all of the 

previously given jury instructions, we conclude that Freed has failed to prove 

that his appellate counsel provided ineffective assistance in deciding to pursue 

other claims on direct appeal.6

[28] The judgment of the post-conviction court is affirmed.

Baker, J., and Pyle, J., concur.

 

6

 We also note that to the extent that Freed argues that his appellate counsel provided ineffective 

assistance by failing to challenge the giving of Instruction No. 13.01A because it contained an 

appellate standard, our review of the instruction reveals that the tendered instruction does not 

contain an appellate standard but rather an accurate statement of the law, which provided an 

answer to the specific legal question posed by the jury.