Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 1 of 19

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.

ATTORNEY FOR APPELLANT

Lisa M. Johnson

Brownsburg, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Supervising Deputy Attorney 

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Anthony A. Parish,

Appellant-Defendant,

v. 

State of Indiana, 

Appellee-Plaintiff. 

April 20, 2020 

Court of Appeals Case No. 

19A-PC-2645 

Appeal from the Allen Superior 

Court 

The Honorable Frances C. Gull, 

Judge 

Trial Court Cause No. 

02D04-1403-PC-31 

Brown, Judge. 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 2 of 19

[1] Anthony A. Parish appeals the denial of his petition for post-conviction relief. 

We affirm.

Facts and Procedural History

[2] The relevant facts as discussed in Parish’s direct appeal follow:

Just after 11:00 p.m. on August 6, 2008, Dennis Salley left his 

home in Fort Wayne to find something to eat. As Salley walked 

toward his restaurant of choice, he decided to stop by his friend 

Lance’s home at the intersection of Suttenfield and Caroline 

Streets. As Salley approached the home, he noticed two groups 

of young males standing in the vicinity. Salley asked them 

whether Lance was there and was told he was not. As Salley 

walked past another group of males, one male asked him, “What 

do you need, old school?” Tr. p. 128. Salley stated, “I’m 

straight.” Tr. p. 128. A member of the group then stated, “Well, 

get your punk a* * off the block then.” Tr. p. 128. Salley turned 

to face the person he believed had said this and responded, “I 

ain’t no punk.” Tr. p. 128. An argument ensued between Salley 

and this person, who Salley later identified as Parish. Parish shot 

Salley in the chest, stomach, and side. Salley turned to run 

away, but Parish pursued him and shot him in the leg and calf. 

Salley stumbled but was able to run another half block to 

someone’s house for help. Salley was subsequently transported 

to Parkview Hospital where he was treated for gunshot wounds 

to the stomach, back, thigh, and calf. As a result of his gunshot 

wounds, Salley lost his right kidney, suffered a severed liver, and 

sustained damage to his right leg.

Over a span of approximately two and one-half months, 

authorities showed Salley a series of photographic arrays. Salley 

identified several individuals pictured in the arrays as persons 

present at the time of the shooting but did not identify these 

persons to be the shooter. On November 3, 2008, Salley 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 3 of 19

identified Parish, who was pictured in a photographic array, as 

his shooter.

Authorities investigating the scene found four shell casings in the 

vicinity. Subsequent testing demonstrated that the casings were a 

“40 Smith and Wesson” caliber and had been fired from a 

semiautomatic weapon rather than from a revolver. Tr. p. 257. 

Witness Rico Parrish [(“Rico”)]

[1] claimed to have seen Parish in 

possession of a “glock type weapon,” specifically not a revolver, 

on the day in question. Tr. p. 195.

Parish v. State, No. 02A04-0912-CR-739, slip op. at 2-3 (Ind. Ct. App. March 24, 

2010).

[3] On March 11, 2009, the State charged Parish with Count I, attempted murder; 

Count II, aggravated battery as a class B felony; Count III, carrying a handgun 

without a license as a class C felony; and Count IV, pointing a firearm as a class 

D felony. Id. at 3. 

[4] On July 14 and 15, 2009, the court held a jury trial. Id. The jury found Parish 

guilty as charged, and the court entered a judgment of conviction on each 

count. Id. at 4. At an August 7, 2009 sentencing hearing, the court vacated 

Parish’s conviction in Count II and sentenced him to concurrent sentences of 

fifty years in the Department of Correction for Count I, eight years for Count 

III, and three years for Count IV. Id. On direct appeal, Parish challenged his 

attempted murder conviction by claiming that the trial court improperly 

1 The court noted Parish and Rico were not related. See Parish, slip op. at 3 n.4. 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 4 of 19

instructed the jury and that there was insufficient evidence to support his 

conviction. Id. at 2. This Court affirmed. Id. 

[5] In March 2011, Parish filed a petition for post-conviction relief and withdrew 

the petition in 2014. Parish filed a petition for post-conviction relief on 

February 27, 2014, and amended petitions on April 11, 2018, June 12, 2018, 

and January 3, 2019. 

[6] On February 15, 2019, the court held a hearing. Parish’s trial counsel testified

and described his general preparation for a trial in a major felony case to 

include collecting and reviewing discovery, meeting with the client, reviewing 

discovery with the client, obtaining a view of where the client wants to go with 

the case, and deposing witnesses. He testified that he represented Parish in two 

cases, the case involving the attempted murder of Salley and a murder case. 

[7] The court admitted a letter from Parish’s trial counsel to Parish dated June 22, 

2009, which stated: 

Today, I was scheduled to take a number of depositions on the 

Attempt Murder case. Mr. Salley, the alleged victim, has moved 

from Fort Wayne and his deposition is to be rescheduled as a 

result of his not getting back here in time for the deposition 

today. Two of the other people on the State’s Witness List, 

Arrington and Lee, are now in prison. While they can be 

brought back to be deposed, the State now tells me they do not 

intend on calling them as witnesses. Unless you have some 

interest in them, I would not be inclined to depose them.

Exhibits Volume I at 9. 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 5 of 19

[8] When asked about Rico, Parish’s trial counsel stated that Rico had significant 

involvement in the cases and was a friend of Parish, a witness against Parish in 

the attempted murder case, and a witness in the murder case. When asked if he 

recalled if he had considered looking for evidence to impeach Rico, he stated he 

deposed Rico but did not recall “seeking out folks or having folks approach me 

with opinions about his character for honesty or attacking him in that way.” 

Post-Conviction Transcript Volume II at 7. He testified that it was his normal 

practice to read everything the State provided in discovery and he did not recall 

any prior inconsistent statements from Rico in the murder case. When asked if 

he recalled Rico being charged with aggravated battery and criminal 

recklessness in October of 2008, he answered: “Not specifically, but I – my 

general recollection of [Rico] is that he, over the years, has had numerous runins with the legal system where he’s been a defendant. That wouldn’t surprise 

me to learn.” Id. at 8. He indicated that he did not remember the charges being 

dismissed three days after they were filed and that he did not recall the name 

Robert Lee. When asked why he did not depose Lee, he answered: “Well, just 

inferring from [the June 22, 2009] letter, if that’s how I left it in the letter, if 

[Parish] didn’t suggest to follow up with that then that’s probably why, because 

I suggest in the letter I wasn’t inclined to pursue them.” Id. at 12. He testified 

that he did not consider consulting with or presenting testimony from an 

eyewitness identification expert. 

[9] The court admitted an affidavit of Lee dated June 2018 which asserted that he 

and Parish were talking to a woman named Nia and another woman when 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 6 of 19

Salley approached, Parish “was out there when Salley got shot, but [he] did not 

shoot Salley,” Salley was not close to Parish when he was shot, the police 

questioned Rico, and Rico later told him in a conversation in 2011 that “he had 

to ‘throw Anthony Parish under the bus’ to get himself out of some problems he 

was having with the police.” Exhibits Volume V at 132-133. He also stated 

Rico was his distant cousin, was “one of the most dishonest people” he had 

ever known, and had a reputation for “getting arrested and then falsely 

incriminating somebody else in order to get himself out of trouble.” Id. at 133. 

[10] The court admitted an affidavit of Rico in which he asserted his testimony was 

“not entirely truthful,” and he “was coerced, threatened, and manipulated by 

the police to testify to a version of events which they found acceptable.” 

Exhibits Volume VI at 3. He also asserted that he was arrested for aggravated 

battery, battery, and criminal recklessness on October 14, 2008, Detective Chad 

Wagner and Officer Christopher Hoffman questioned him, Detective Wagner 

told him the charges against him would be dismissed if he agreed to testify 

against Parish, and he agreed to accept the offer. He also stated that Detective 

Lorna Russell later told him that the charges would be refiled if he “did not tell 

her what she wanted to hear.” Id. at 4. With respect to the August 6, 2008 

offense, Rico asserted:

9. On August 6, 2008, I was with [Parish], from around 9:00 

a.m. or 10:00 until around 11:00 a.m. or 12:00 p.m. We were in 

a large, white, car with Gabrielle. Gabrielle’s last name is 

Carswell. Gabrielle’s mother’s last name is Holley. When I 

testified that his name was Gabrielle Holley, I must have been 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 7 of 19

thinking of his mother. Gabrielle was driving, [Parish] was 

sitting in the front passenger seat, and I was in the back seat.

10. There was a gun sitting on the center console of Gabrielle’s 

car, in the front seat. I do not know who the gun belonged to. I 

did not see Gabrielle or [Parish] touch the gun. I did not hear 

Gabrielle or [Parish] claim ownership of the gun. I do know that 

Gabrielle had a license to carry a handgun at the time.

Id. at 4. The court admitted affidavits of Detectives Wagner and Russell 

denying the assertions in Rico’s affidavit.

[11] The court admitted affidavits from multiple individuals indicating that Rico had 

a reputation for being dishonest and making false accusations. Parish 

introduced and the court admitted a report from Deryn Strange, a professor of 

psychology, discussing how memory works and the general problem of 

mistaken identifications and highlighting research findings relating to certain 

factors. On November 5, 2019, the court denied Parish’s petition in a thirtypage order.

Discussion

[12] The petitioner in a post-conviction proceeding bears the burden of establishing 

grounds for relief by a preponderance of the evidence. Fisher v. State, 810 

N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing 

from the denial of post-conviction relief, the petitioner stands in the position of 

one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On 

review, we will not reverse the judgment unless the evidence as a whole 

unerringly and unmistakably leads to a conclusion opposite that reached by the 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 8 of 19

post-conviction court. Id. “A post-conviction court’s findings and judgment 

will be reversed only upon a showing of clear error—that which leaves us with a 

definite and firm conviction that a mistake has been made.” Id. In this review, 

we accept findings of fact unless clearly erroneous, but we accord no deference 

to conclusions of law. Id. The post-conviction court is the sole judge of the 

weight of the evidence and the credibility of witnesses. Id.

[13] Parish argues his trial counsel was ineffective for failing to: (A) interview, 

depose, or present the testimony of Lee; (B) present reputation and opinion 

evidence showing Rico was not credible; (C) present expert testimony regarding 

the inherent unreliability of eyewitness identifications; and (D) present evidence 

regarding the favorable treatment Rico received from the State in an unrelated 

case.

[14] To prevail on a claim of ineffective assistance of counsel a petitioner must 

demonstrate both that his counsel’s performance was deficient and that the 

petitioner was prejudiced by the deficient performance. French v. State, 778 

N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls 

below an objective standard of reasonableness based on prevailing professional 

norms. Id. To meet the appropriate test for prejudice, the petitioner must show 

that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. Id. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome. 

Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 9 of 19

will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective 

assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

[15] When considering a claim of ineffective assistance of counsel, a “strong 

presumption arises that counsel rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment.” 

Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance 

is presumed effective, and a defendant must offer strong and convincing 

evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 

(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will 

not support a claim of ineffective assistance of counsel. Clark v. State, 668 

N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S. 

Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second 

guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly 

speculate as to what may or may not have been an advantageous trial strategy 

as counsel should be given deference in choosing a trial strategy which, at the 

time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d 

40, 42 (Ind. 1998). 

A. Lee

[16] Generally, deciding which witnesses to call is the “epitome of a strategic 

decision,” Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001), cert. denied, 535 

U.S. 1019, 122 S. Ct. 1610 (2002), and such decisions are insufficient to 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 10 of 19

establish ineffective representation. See Kelly v. State, 452 N.E.2d 907, 910 (Ind. 

1983). The Indiana Supreme Court has held:

With the benefit of hindsight, a defendant can always point to 

some rock left unturned to argue counsel should have 

investigated further. The benchmark for judging any claim of 

ineffectiveness must be whether counsel’s conduct so 

undermined the proper functioning of the adversarial process that 

it deprived the defendant of a fair trial. Strickland, 466 U.S. at 

686, 104 S. Ct. 2052. Strickland does not require counsel to 

investigate every conceivable line of mitigating evidence no 

matter how unlikely the effort would be to assist the defendant at 

sentencing. Wiggins v. Smith, 539 U.S. 510, 533, 123 S. Ct. 2527, 

156 L.Ed.2d 471 (2003). This would interfere with the 

constitutionally protected independence of counsel at the heart of 

Strickland. Id. Rather, we review a particular decision not to 

investigate by looking at whether counsel’s action was reasonable 

in light of all the circumstances. Id. at 521-22, 123 S. Ct. 2527. 

In other words, counsel has a duty to make a reasonable 

investigation or to make a reasonable decision that the particular 

investigation is unnecessary. Id. at 521, 123 S. Ct. 2527.

Ritchie v. State, 875 N.E.2d 706, 719-720 (Ind. 2007), reh’g denied.

[17] In this case, the post-conviction court’s order states:

7. Detective Craig Gregory of the Fort Wayne Police testified at 

trial that he attempted to interview witness Robert Lee, but “[h]e 

wouldn’t talk to us.” This testimony was consistent with 

Detective Gregory’s statement on page 6 of a police report dated 

August 8, 2008, admitted as Petitioner’s Exhibit 26 at the postconviction hearing: “I first went in to interview ROBERT 

DESEAN LEE. MR. LEE immediately advised that he wanted 

an attorney. I advised MR. LEE that he was only a witness at 

this point. MR. LEE stated that he was not speaking to anyone 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 11 of 19

without an attorney present.” [Trial counsel] did not 

subsequently try to interview witness Lee or to present his 

testimony at trial. At the post-conviction hearing, [trial counsel] 

did not remember anything about Lee.

* * * * *

13. . . . . On the supposition that [trial counsel] should have 

tried to interview Robert Lee notwithstanding Lee’s refusal to 

talk to police, Petitioner has not shown a reasonable probability 

that the outcome of his trial would have been affected, for the 

following reasons.

14. First, Lee’s affidavit does not even state that he would have 

talked to [trial counsel] (unlike the police) before trial if asked, but 

only that he would have made certain statements at trial. To 

form a reasonable professional judgment that Lee should be 

called to testify for the defense at trial, [trial counsel] would have 

needed at least some reason to believe, before trial, that Lee’s 

testimony would be available, credible, and favorable to the 

defense. Lee’s affidavit gives no indication of any way in which 

[trial counsel] could have made any of those determinations, 

much less all of them, before trial. From the fact that Lee had 

refused to talk to the police, although it cannot be definitely 

inferred that Lee would also have refused to talk to [trial 

counsel], it also cannot be definitely inferred that Lee would have 

agreed to talk to [Parish’s trial counsel], and no evidence 

establishes that he would have agreed to do so. For this reason, 

Lee’s affidavit has no tendency to establish that the outcome at 

trial would have been affected by Lee’s statements, for those 

statements would not have been presented at trial if [trial 

counsel] had not been able to evaluate them before trial.

15. Even on the questionable supposition that Lee really meant 

to say he would have talked to [trial counsel] before trial and 

testified at trial, serious difficulties remain with Petitioner’s claim 

that testimony from Lee would have affected the outcome of the 

trial. By submitting Lee’s account only in the form of an 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 12 of 19

affidavit, Petitioner has failed to give the Court an opportunity to 

observe the effect that cross-examination would likely have had 

on Lee’s testimony if presented at trial. Among the questions 

that could have been asked on cross-examination, not answered 

in the affidavit, are these: Did you see who shot Dennis Salley? 

If so, why didn’t you say so? If not, why didn’t you say you did 

not see who shot him? Why did you refuse to talk to the police? 

Aren’t you a friend of Anthony Parish? How close was Anthony 

Parish to the corner of Caroline and Suttenfield when the 

shooting took place on Suttenfield? How did you happen to 

remember that these events took place at around 11:30 p.m.? 

Did you see who, if anyone, was talking to Dennis Salley at the 

time when he was shot? Did you see anyone there whom Salley 

could have mistaken for Anthony Parish? Given your extremely 

poor opinion of Rico Parrish’s character for truthfulness, did you 

have any reason to believe he was telling the truth when he said 

he had just gotten up at 11:00 or 12:00? Were you keeping Rico 

Parrish under constant surveillance from the time you saw him at 

11:00 a.m. or 12:00 p.m. until the shooting in the late evening 

hours? If so, why? If not, how do you know where he was 

during that entire time? Petitioner has not even shown that Lee 

could have answered such questions to [trial counsel’s]

satisfaction if interviewed, so as to give reasonable assurance to

[trial counsel] that Lee’s testimony would stand up under crossexamination; much less has he shown that Lee’s testimony 

actually would have been found credible under crossexamination at trial.

16. Finally, in view of the very long interval between the events 

described and the execution of Lee’s affidavit, there appears to be 

a very significant possibility that the affidavit has been affected by 

certain factors specified by Dr. Strange as affecting memory, 

specifically the decline of memory over time and the influence of 

post-event information creating inaccuracies in memory, which is 

a “reconstructive process prone to error.” The most glaring 

example of post-event information is Lee’s assertion that Rico 

Parrish made an admission to him in 2011, but the influence of 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 13 of 19

post-event information appears to be discernible in other respects 

as well. Lee’s claimed memory of the events of August 6, 2008, 

is highly detailed, and includes statements that appear to have 

been likely formulated after the fact in response to knowledge 

acquired from the evidence at trial. Notably, Lee’s statement 

that Petitioner “did not swear” at Salley can be best understood 

as a later-devised response to Salley’s testimony at trial that a 

person later identified as Petitioner had said, “get your punk a** 

off the block”. The question whether Petitioner did swear at 

Salley would not appear to have arisen if not for this testimony, 

and Lee states no way in which he could have found out about 

the “punk a**” language before trial if he did not hear Petitioner 

using such language. Likewise, Lee’s statements that Rico 

Parrish said he had just gotten up at 11:00 or 12:00, and that Rico 

Parrish hung around the neighborhood the rest of the day until 

the time of the shooting, can best be understood as later-devised 

responses to Rico Parrish’s testimony that he observed Petitioner 

in a car with a gun sometime before 11:30 a.m. or 12:00 noon on 

the day of the offense, and that he did not see Petitioner again on 

that day. In view of these fairly obvious later-devised 

“memories,” in turn, serious questions arise as to whether other 

aspects of Lee’s claimed memories, such as that Petitioner was 

not even close to the place where Salley testified that he 

confronted him, were also later-devised responses to information 

derived from testimony at trial. The Court is not convinced that 

Lee would actually have presented statements such as these in his 

testimony at trial, if given – much less in an interview with [trial 

counsel] before trial, in which [trial counsel] would have needed 

to evaluate the credibility of Lee’s possible testimony. 

Appellant’s Appendix Volume III at 129, 145-148 (citations and footnotes

omitted).

[18] The record reveals that Lee asserted in his affidavit dated almost ten years after 

the incident that he and Parish were talking to two women when Salley 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 14 of 19

approached. However, the record does not reveal that Parish told his trial 

counsel he had been engaged in a conversation with Lee at that time or that Lee 

could support his defense. Trial counsel sent a letter to Parish indicating the 

State did not intend on calling Lee as a witness, and “[u]nless you have some 

interest in them, I would not be inclined to depose them.” Exhibits Volume I at 

9. Trial counsel testified he did not recall Parish ever telling him he wanted Lee 

to be called as a witness. Under these circumstances, we cannot say that trial 

counsel’s performance was deficient. While Lee asserted in his affidavit that he 

would have testified at trial, the record does not demonstrate that Lee would 

have spoken with trial counsel if he had been contacted prior to the trial. 

Further, at trial, when asked if he testified that Parish shot him, Salley 

answered: “I’m for sure. Yeah, there’s no question in my mind, man.” Id. at 

152. When shown a photo array and asked if he recognized the exhibit, Salley 

stated: “Yeah. This is the guy who shot me right here. This is this Anthony 

Parish kid.” Id. at 161. When asked if he immediately recognized Parish, 

Salley answered: “Immediately.” Id. at 162. He indicated that he remembered 

six photo arrays being shown to him and did not identify the shooter until the 

sixth photo array. We cannot say the evidence as a whole unerringly and 

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

court. 

B. Reputation and Opinion Evidence Regarding Rico
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 15 of 19

[19] The post-conviction court’s order states:

18. The testimony of Rico Parrish, regarding the gun he 

observed in the car in which he and Petitioner were riding earlier 

in the day, would appear to have been admissible to show that 

Petitioner had access to a weapon of the type used in the 

shooting. Nevertheless, the probative value of this evidence of a 

vaguely described, apparently common type of handgun in a car 

near Petitioner (not touched or claimed by him), in relation to the 

issue of whether Petitioner was the one who later shot Dennis 

Salley, would appear to have been quite slight. The outcome at 

trial surely would have been the same even if this testimony had 

not been presented at all. A fortiori, had Rico Parrish’s credibility 

been impeached by one or more of the means now proposed by 

Petitioner (i.e., reputation and opinion evidence of poor 

character for truthfulness, and supposed favorable treatment from 

the prosecution), there is no probability that the outcome at trial 

would have been different.

Appellant’s Appendix Volume III at 149 (citations omitted). 

[20] On cross-examination, trial counsel testified that he did not recall Parish or 

anyone approaching him about a possibility of impeaching Rico using opinion 

or reputation evidence about his character for truthfulness. Parish 

acknowledges that “[a]s the post conviction court explicitly found, Rico’s 

testimony had minimal probative value.” Appellant’s Brief at 28. He also 

asserts that, while Rico testified he saw a gun in a car in which he, Parish, and a 

third individual were riding, he did not testify that Parish touched the weapon 

or claimed it belonged to him. Further, as pointed out by the State, Rico 

testified on cross-examination that he was sure Parish had his arm in a sling 

that day, while trial counsel elicited testimony from Salley on cross-
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 16 of 19

examination that he did not remember anyone wearing a cast or something 

similar that night and later emphasized this during closing argument. (Ex. I 

181-182, 186-187; Ex. II 54-55) We cannot say reversal is warranted on this 

basis. 

C. Expert Testimony Regarding Eyewitness Identifications

[21] The post-conviction court’s order discussed Dr. Strange’s report and stated in 

part:

For the same reason, statistics regarding percentages of 

identifications that are confident but mistaken in experimental 

groups would have had no tendency to establish that Dennis 

Salley’s confident identification of [Parish] as the perpetrator 

was, or might have been, mistaken. At most, expert testimony 

could have established the distinct possibility that an eyewitness

identification may be confident but mistaken under at least some 

conditions – exactly the same possibility that [trial counsel]

presented at length to the jury in cross-examination and closing 

argument. [Parish] has not shown that expert testimony about 

the possibility of a confident but mistaken eyewitness 

identification would have been any more convincing to the jury 

than were [trial counsel’s] cross-examination and argument.

Appellant’s Appendix Volume III at 153-154.

[22] The report of Dr. Strange stated: “I am not commenting on the credibility of 

any witness nor expressing an opinion about the reliability of any identification 

in this case.” Exhibits Volume V at 230. Further, Ind. Evidence Rule 704(b) 

provides that “[w]itnesses may not testify to opinions concerning intent, guilt, 

or innocence in a criminal case; the truth or falsity of allegations; whether a 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 17 of 19

witness has testified truthfully; or legal conclusions.” While Dr. Strange’s 

report discussed factors that influence the accuracy of identifications such as 

lighting and distance, stress, time estimation, exposure duration, retention 

interval, and post-event information, the record reveals trial counsel extensively 

cross-examined Salley regarding a number of these factors and reiterated the 

possibility Salley was mistaken in his identification. Specifically, trial counsel 

questioned Salley about the lighting conditions, and Salley indicated on crossexamination that he was under the effects of medication when he was shown a 

lot of the photo arrays, he never saw the gun that caused his injuries, he was 

startled when he was shot, the person could have been a little shorter or a little 

taller than him, he did not know if there was anything distinctive about the 

shooter, it happened fast, and he was running for his life. During closing 

argument, trial counsel argued Salley was mistaken and emphasized his limited 

opportunity to observe the shooter. We also note that Parish’s trial counsel 

relied upon Rico’s testimony at trial. As mentioned above, Rico testified on 

cross-examination that he was sure Parish had his arm in a sling that day, while 

trial counsel elicited testimony from Salley on cross-examination that he did not 

remember anyone wearing a cast or something similar that night and later 

emphasized this during closing argument. We cannot say the evidence as a 

whole unerringly and unmistakably leads to a conclusion opposite that reached 

by the post-conviction court. See Harrison v. State, 707 N.E.2d 767, 779 (Ind. 

1999) (holding that it was at best wholly speculative that a request for the 

appointment of an expert witness to testify about eyewitness identifications

would have been granted or that the expert testimony would have affected the 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 18 of 19

outcome of the trial and concluding that trial counsel’s failure to request an 

eyewitness testimony expert did not overcome the strong presumption of 

counsel’s competence), reh’g denied, cert. denied, 529 U.S. 1088, 120 S. Ct. 1722

(2000). 

D. Evidence Regarding Favorable Treatment Received by Rico

[23] The post-conviction court’s order states:

Aside from the affidavit of Rico Parrish, which the Court finds 

unworthy of credit, no evidence suggests that Rico Parrish 

received favorable treatment from the prosecution in any case in 

exchange for testimony in cause number 02D04-0901-MR-3. 

Instead of credible evidence, Petitioner presents only unfounded 

conjecture to the effect that Rico Parrish may have feared he 

would be charged if he did not give testimony favorable to the 

prosecution. The only evidence on this point which the Court 

finds to be credible, the affidavits of Lorna Russell and Chad 

Wagner, provides no support for the claim that Rico Parrish 

feared he would be charged if he did not say what the police or 

the State wished him to say.

Appellant’s Appendix Volume III at 143 (citations omitted).

[24] The record reveals that the State charged Rico with aggravated battery, battery, 

and criminal recklessness on October 14, 2008, under cause number 02D04-

0810-MC-2350. That same day, the trial court found probable cause to hold 

Rico for seventy-two hours. Three days later on October 17, 2008, the court 

dismissed the charges against Rico on the State’s motion, which was more than 

four months before Parish was charged in the underlying case. Rico asserted in 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2645| April 20, 2020 Page 19 of 19

his affidavit that Detective Wagner told him that the charges would be 

dismissed if he agreed to testify against Parish and that Detective Russell said 

the charges would be refiled if he did not tell her what she wanted to hear. 

However, Detective Wagner stated in an affidavit that he interviewed Rico in 

October 2008 and there was no discussion of the shooting incident occurring on 

August 6, 2008, and that he did not tell Rico at any time that any charges 

would be dismissed if he agreed to testify against Parish in regard to any matter 

nor that any charges would be dismissed only if he told him what he wanted to 

hear. Further, Detective Russell asserted in her affidavit that she interviewed 

Rico in October 2008 in connection with the murder investigation that led to 

the conviction of Parish in cause number 02D04-0901-MR-3 and that she did 

not discuss any actual or potential charges against Rico and did not say that any 

charges would be filed or refiled if he did not tell her what she wanted to hear. 

We cannot say that reversal is warranted. 

[25] For the foregoing reasons, we affirm the denial of Parish’s petition for postconviction relief.

[26] Affirmed.

Najam, J., and Kirsch, J., concur.