Court of Appeals of Indiana | Memorandum Decision 18A

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### 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.

A TTORNEY FOR A PPELLANT Jonathan D. Harwell Harwell Legal Counsel LLC Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Jerry Emerson , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. May 1, 2019 Court of Appeals Ca se No. 18A

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- 1687 Appeal from the Marion Superior Court The Honorable Kurt M. Eisgruber, Judge The Honorable Steven J. Rubick, Magistrate Trial Court Cause No. 49G01

- 0805

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- 107649

Najam , Judge
.Court of Appeals of Indiana | Memorandum Decision 18A

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### Statement of the Case

[1] Jerry Emerson appeals the post

- conviction court’s denial of his petition for post

conviction relief. Emerson presents several issues for our review, which we consolidate and restate as one issue, namely, whether the post

- conviction court erred when it con cluded that he was not denied the effective assistance of trial counsel. We affirm. 

### Facts and Procedural History

[2] On direct appeal, this C ourt set out the facts and procedural history as follows:
On July 30, 2007, Emerson and Samuel “Buddha” Fancher were d riving in an Indianapolis neighborhood and spotted seventeen

year - old Leroy Moorman and sixteen

- year - old Ryan Sampson. Emerson and Fancher recognized the teenagers as people who had previously broken into their house. The two men forced Moorman and Sampso n into their car at gunpoint and drove them to a vacant residence. Once there, they took Moorman and Sampson to a bathroom and shot them. Sampson was shot multiple times, including in the head, and died at the scene. Moorman was shot in both arms and lay on the floor with his eyes closed until Emerson and Fancher left. He then went to a nearby residence for help. Moorman survived the shooting. Later, Emerson told Curtis Williams about the shooting. Williams testified at trial that Emerson described the shooting as follows: As soon as I got to the mother f***ing house, I shot that mother f***er dead in the head. This little b  [Fancher] was gonna do the same d** * thing, but he wanna give mother f***ers body shots. I told himCourt of Appeals of Indiana | Memorandum Decision 18A

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- 1687 | M ay 1, 2019 Page 3 of 16 that body shots don ’ t w ork, and [Fancher] said, he thought he was dead, too.
Tr. p. 206

- 07. After Williams subsequently learned that he was distantly related to Sampson, he told an uncle and later the police what he knew.
The State charged Emerson with murder, attempted murder, Class B felony criminal confinement, and Class A misdemeanor carrying a handgun without a license. The case proceeded to a jury trial. At the conclusion of trial, Emerson was convicted as charged.

Emerson v. State , No. 49A02

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- 848 , 2009 WL 1974552 , at * 1 (Ind. Ct. App. July 9, 2009) (footnotes omitted) , trans. denied

. We affirmed Emerson’s convictions on direct appeal. Id. at * 10.

[3] On June 4, 2010, Emerson filed a pro se petition for post

- conviction relief, and

on February 15, 2017, he filed a petition for post

- conviction relief by counsel. Following a hearing, the post

- conviction court denied his petition. This appeal ensued.


### Discussion and Decision

[4] Emerson appeals the post

- conviction court’s denial of his petition for post

conviction relief. As our Supreme Court has stated:
“The petitioner in a post

- conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence.” Campbell v. State , 19 N.E. 3d 271, 273

- 74 (Ind. 2014). “When appealing the denial of post

- conviction relief, the petitioner stands in the position of one appealing from a negativeCourt of Appeals of Indiana | Memorandum Decision 18A

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- 1687 | M ay 1, 2019 Page 4 of 16 judgment.” Id . at 274. In order to prevail on an appeal from the denial of post

- co nviction relief, a petitioner must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post

- conviction court. Weatherford v. State , 619 N. E.2d 915, 917 (Ind. 1993). Further, the post

conviction court in t his case entered findings of fact and conclusions of law in accordance with Indiana Post

- Conviction Rule 1(6). Although we do not def er to the post

- conviction court’ s legal conclusi ons, “[a] post

- conviction court’ s findings and judgment will be reversed o nly upon a showing of clear
error

— that which leaves us with a definite and firm conviction that a mistake has been made.” Ben

- Yisrayl v. State , 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
Humphrey v. State , 73 N.E.3d 677, 681

- 82 (Ind. 20 17).

[5] In particular , Emerson alleges that the post

- conviction court erred when it determined that he was not denied the effective assistance of counsel.
When evaluating an ineffective assistance of counsel claim, we apply the two

- part test articulated i n Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984). See Helton v. State , 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, “the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘cou nsel’ guaranteed by the Sixth Amendment.” McCary v. State , 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland , 466 U.S. at 687

- 88, 104 S. Ct. 2052). To satisfy the second prong, “the defendant must show prejudice: a reasonable probability (i.e. a probab ility sufficient to undermine confidence in the outcome) that, but for counsel’s errors, the result of the proceeding would have been different.” Id . (citing Strickland , 466 U.S. at 694, 104 S. Ct. 2052).Court of Appeals of Indiana | Memorandum Decision 18A

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- 1687 | M ay 1, 2019 Page 5 of 16 Campbell v. State , 19 N.E.3d 271, 2 74 (Ind. 2014)

. The “[f]ailure to satisfy either prong will cause the claim to fail.” French v. State , 778 N.E.2d 816, 824 (Ind. 2002).

[6] Emerson contends that his trial counsel was ineffective when she did not object

to : testimony about a witness’ reluctance to testi fy ; t hree instances of alleged prosecutorial misconduct ; one instance of alleged hearsay ; and an alleged ly erroneous jury instruction . Emerson also contends that his counsel was ineffective when she did not move to suppress certain evidence. 1 We address each contention in turn.


### Witness’ Reluctance to Testify

[7] Emerson asserts that his trial counsel’s performance was deficient when she did not object to testimony and closing argument referring to Leroy Moorman’s reluctance to testify because of fear or intimidation. Emerson correctly points out that “ testimony about threats made against a witness is admissible only where a proper foundation has been laid showing the threats were made either by the defendant or with the defendant ’ s knowledge or authorization. ” Smith v.
State , 765 N.E.2d 578, 587 (Ind. 2002).

1 W e reject the State’s contention that several of Emerson’s arguments are barred by res judicata . While on direct appeal Emerson raised substantive issues related to some of his claims of ineffective assistance of counsel, we addressed those contentions und er a fundamental error analysis, which is a different analysis than that presented under the ineffective assistance of counsel claims in this appeal.Court of Appeals of Indiana | Memorandum Decision 18A

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- 1687 | M ay 1, 2019 Page 6 of 16 [8] In Smith , defendant’s counsel made no objections when two witnesses testified
that “ they feared they might be harmed if they testifie d,” but they had not been threatened. Id. And the Su preme Court stated that, “[w] ithout a showing tying
these fears to [the defendant] , its admission is error

— for the same reason other unspecified threats are improper. ” Id. However, our Supreme Court held that

“ the errant admission of testimony of unspeci fied concerns of witnesses [did not] rise to the level of defective performance necessary to support a claim of ineffective assistance of counsel under Strickland

. ” Id. at 588.

[9] Here, Detective Tom Tudor testified that Moo rman appeared to be “very reluctant” to testify at Emerson’s trial and seemed “intimidated” or “ just scared.” Trial Tr. at 409. And, during closing argument, the prosecutor stated that Moorman was “the least reliable” witness because he was “petrified” and had tried to avoid test ifying. Id. at 515. But neither Detective Tudor nor the prosecutor remarked on the source of Moorman’ s fear , and his fear was not described with any specificity. Following our Supreme Court’s reasoning in Smith , given the “unspecified” 2 nature of Moorma n’s fears , we cannot say that trial counsel’s failure to object r ose to the level of deficient performance under Strickland

. Smith , 765 N.E.2d at 588.

2 A s we stated in Emerson I , “ the testimony regarding Moorman ’ s reluctance to testify was vague and did n ot necessarily implicate that Moorman was afraid of the defendant. ” 2009 WL 1974552 , at *10.Court of Appeals of Indiana | Memorandum Decision 18A

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### Prosecutorial Misconduct

[10] Emerson contends that his trial counsel’s performance was deficient and/or prejudiced him when she did not object to t hree instances of alleged prosecutorial misconduct : when the prosecutor elicit ed testimony about a prior trial date that was rescheduled when Moorman failed to appear ; testimony referencing Emerson’s exer cise of his right to a speedy trial ; and the prosecutor’s reference to Emerson’s failure to testify

. We address each contention in turn.



### Prior Trial Date

[11] Emerson first asserts that “[t]he jury became privy to the fact this was Emerson’s second trial attem pt ,” which “left the jury with improper information.” Appellant’s Br. at 15

- 16. In support of that assertion, Emerson cites to one page of the trial transcript, where the State questioned Moorman about his failure to show up to testify at trial two weeks prior. Emerson does not explain why that question was “ improper, ” and he does not cite any relevant case law to support his contention. Emerson has not demonstrated that his counsel’s performance was deficient when she did not object to that question of Moorman.


### Speedy Trial

[12] As for the State’s reference to Emerson’s exercise of his right to a speedy trial, during the State’s direct examination of Detective Tudor, Detective TudorCourt of Appeals of Indiana | Memorandum Decision 18A

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- 1687 | M ay 1, 2019 Page 8 of 16 testified that neither Emerson nor Fancher had left any traces of their DNA at the crime scene. And the following colloquy immediately ensued :
Q: Now you are aware, are you not, detective, that the defendant in this case asked for a speedy trial?

A: Yes, I ’ m aware. Q: And does that limit the time that the State has to bring somebody to trial?

A: It certainly can.
Q: And with your knowledge of the Crime Lab and the backlog of DNA, is there sufficient time, or was there sufficient time between now and then to get re sults back if we even had anything to look at?

A: Probably not.

Trial Tr. at 430. Emerson asserts that the testimony was improper because it constituted “impermissible burden shifting” and it was “an invitation for the jury to draw an adverse inference from the accused’s exercise of his constitutional rights.” Appellant’s Br. at 15

- 16 (citing Moore v. State , 669 N.E.2d 733, 738 (Ind. 1996)).

[13] In Emerson I , we concluded that “t he jury was not left with an inference that
Emerson ’ s speedy trial request thw arted the State ’ s efforts to conduct DNA testing. ” 2009 WL 1974552 , at *5 (emphasis original). Accordingly, we rejected Emerson’s fundamental error argument on this issue because “[a] ny error created by the State ’ s mention of Emerson ’ s exercise of his sp eedy trialCourt of Appeals of Indiana | Memorandum Decision 18A

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- 1687 | M ay 1, 2019 Page 9 of 16 right did not create a substantial potential for harm. ” Id. Likewise, here, Emerson has not persuaded us that but for his counsel’s failure to object to this passing reference to his speedy trial request the outcome of his trial would have been different. Without any showing of prejudice, Emerson’s claim on this issue fails.


### Failure to Testify

[14] Emerson contends that the following remarks made during closing arg ument by the State were improper:

We ’ re not asking you to believe [Williams], we ’ re asking you to believe [Emerson]. He ’ s the one that told you what happened. He told you through [Williams], and [Williams] knows things he could not have known.

. . . We ’ r e not asking you to believe Curtis Williams. Believe [Emerson]. He ’ s the one that told you what happened through Curtis Williams.

Trial Tr. at 518. Emerson maintains that, with those closing remarks, the State invited the jury “to draw an adverse infere nce” from his failure to testify, which is prohibited. Appellant’s Br. at 17. But, had Emerson’s trial counsel objected to the closing remarks on that ground, the objection would not have been sustained. A s we stated in Emerson I , “ the State ’ s comment w as merely an argument explaining to the jury why it should credit Williams ’ s testimony ,” which “ was a proper comment upon the credibility of a witness and did not constitute prosecutorial misconduct. ” 2009 WL 1974552 , at * 6. Accordingly, Emerson’s trial counsel’s performance was not deficient when she did not object to the challenged remarks.Court of Appeals of Indiana | Memorandum Decision 18A

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### Hearsay

[15] Emerson contends that his counsel’s performance was deficient when she did not object to alleged hearsay testimony during the State’s direct examination of Detective Tudor. In particular, Emerson maintains that Detective Tudor’s testimony regarding Moorma n ’s identification of Emerson and Fancher as the two men “in the bathroom” at the time of the shooting constituted impermissible hearsay to which his counsel should have objected. Trial Tr. at
107. We cannot agree.

[16] Indiana Evidence Rule 801(d)(1)(C) prov ides that out

- of

- court statements are not hearsay when the “declarant testifies at the trial .

. . and is subject to cross

examination concerning the statement, and the statement is .

. . one of identification of a person made shortly after perceiving the person.” “ The term

‘ shortly ’ is relative, not precise; the purpose of the rule is to assure reliability. ”
Davis v. State , 13 N.E.3d 939, 945 (Ind. Ct. App. 2014) (quoting Dickens v. State , 754 N.E.2d 1, 6 n.6 (Ind. 2001) ) , trans. denied

. Here, because D etective Tudor testified concerning Moorman’s identification of Emerson and Fancher one day after the shootings , and because Moorman testified at trial and was subject to

cross - examination concerning that identification, the challenged testimony was not he arsay. Evid. R. 801(d)(1)(C)

. Emerson cannot show that his trial counsel’s performance was deficient when she made no objection.Court of Appeals of Indiana | Memorandum Decision 18A

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### Jury Instruction

[17] Emerson contends that his counsel ’s performance was deficient when she did

not object to the trial court’s jury instruction s for attempted murder under an accomplice liability theory. 3 Emerson asserts that a proper attempted murder jury instruction sets forth the following elements: tha t the defendant; with the specific intent to kill the victim; “ engaged in conduct which was a substantial step toward such killing.” Appellant’s Br. at 22 (citing Spradlin v. State , 569 N.E.2d 948, 950 (Ind. 1991)). And Emerson asserts that, whe re, as he re, the State charges a defendant with attempted murder under an accomplice liability theory, “the State must prove that both the accomplice and the defendant had the specific intent to kill and took a substantial step towards the commission of murder and the jury must be instructed so.” Id. ( emphases omitted; citing Hopkins v. State , 759 N.E.2d 633, 637

- 38 (Ind. 2001)). On appeal, Emerson maintains that “[n]one of the provided jury instructions correctly informed the jury of this” and his counsel’s perfo rmance was deficient when she “failed to object to the instructions or to tender her own correct attempted murder instruction.” Id. We cannot agree.

[18] The trial court instructed the jury on attempted murder, in relevant part:
The crime of Attempt Murder is defined as follows:

3 The State charged Emerson with S a mpson’s murder, but it charged Emerson as an accomplice in the attempted murder of Moorman.Court of Appeals of Indiana | Memorandum Decision 18A

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- 1687 | M ay 1, 2019 Page 12 of 16 “A person who knowingly or intentionally kills another human being, commits Murder, a Felony. A person attempts to commit Murder when, acting with the culpability required for commission of the Murder, he engages in conduct that cons titutes a substantial step toward commission of the Murder. The crime of Attempt Murder is a Class A Felony.” To convict the defendant of Attempt [ed] Murder, the State must have proved each of the following elements : That the defendant Jerry Emerson, on or about July 30, 2007,

1 . did attempt to commit the crime of Murder,

2. which is to intentionally kill another human being, namely: Leroy Moorman , by engaging in conduct, that is: shooting a deadly weapon, that is: a handgun, at and against the person of Leroy Moorman,

3. with the specific intent to kill Leroy Moorman , resulting in serious bodily injury, that is: two (2) gunshot wounds,

4. which conduct constituted a substantial step toward the commission of said crime of Murder.
Appellant ’ s App. p. 21

- 22 (emphases added)

. The trial court instructed the jury regarding accomplice liability as follows:
A person who knowingly or intentionally aids another person in committing or induces another person to commit or c auses another person to commit a crime, is guilty of the crime, even though he does not personally participate in each act constituting the crime.Court of Appeals of Indiana | Memorandum Decision 18A

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- 1687 | M ay 1, 2019 Page 13 of 16 A person may be convicted of a crime by aiding, inducing, or causing another to commit a crime even if the o ther person: 1. has not been prosecuted for the offense
2. has not been convicted of the offense; or 3. has been acquitted of the offense[.] In order to commit a crime by aiding, inducing or causing another to commit a crime, a person must have knowledge that he is aiding, inducing or causing the commission of the crime. To be guilty, one does not have to personally participate in the crime no r does he have to be present when the crime is committed. Merely being present at the scene of the crime is not sufficient to prove that he aided, induced or caused the crime. Failure to oppose the commission of the crime is also insufficient to prove aid ing, inducing or causing another to commit the crime. But presence at the scene of the crime and or failure to oppose the crime ’ s commission are factors which may be considered in determining whether there was aiding, inducing or causing another to commit the crime.

Id. at 24.

[19] Emerson’s contention that the jury instructions “did not contain the specific intent wording” is unavailing . Appellant’s Br. at 24. To the contrary, the instructions properly state that the State had the burden to prove that Emerso n attempted to murder Moorman, with the specific intent to kill him , and that he took a substantial step toward killing Moorman when he shot him. While
Emerson correctly points out that the attempted murder instruction initially improperly defined murder as “ knowingly or intentionally killing” anotherCourt of Appeals of Indiana | Memorandum Decision 18A

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- 1687 | M ay 1, 2019 Page 14 of 16 person, h is ineffective assistance of counsel claim in this appeal does not rest on that error. And, in any event, as we observed in Emerson I , “[t] he instructions presented to the jury, taken as a whole, sufficiently informed the jury that, in order to convict Emerson of attempted murder, it had to find that he acted with the specific intent to kill Moorman. ” 2009 WL 1974552 , at * 3. Emerson has not shown that he was denied the effective assistance of counsel on this issue.
See Lee v. State , 91 N.E.3d 978, 986 (Ind. Ct. App. 2017) ( holding no Spradlin error because instructions as a whole set out the proper mens rea ) , trans. denied

. 

### Motion to Suppress

[20] Finally, Emerson contends that his trial counse l’s performance was deficient because she did not move to suppress evidence presented by the State “of an impermissible show

- up identification with the family of Ryan Sampson.” Appellant’s Br. at 20. In particular, Emerson avers that the State showed “th e family members one (1) car matching the description of [the car involved in the kidnapping of] Ryan Sampson” before his murder, and he maintains that it was inadmissible because it “was inherently a tainted identification

. ” Id.

[21] Due process of law under the Fourteenth Amendment requires suppression of testimony concerning a pre

- trial identification when the procedure employed is impermissibly suggestive. Harris v. State , 716 N.E.2d 406, 410 (Ind. 1999). Such procedures are known as “show

- up identi fication s

. ” The admissibility of a show

- up identification turns on an evaluation of the totality of the circumstances and whether they lead to the conclusion that the confrontation was conducted in a manner that could guide a witness into making a mistake nCourt of Appeals of Indiana | Memorandum Decision 18A

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- 1687 | M ay 1, 2019 Page 15 of 16 identification. Gordon v. State , 981 N.E.2d 1215, 121 8 (Ind. Ct. App. 2013). Our courts consider the following factors in evaluating the admissibility of a show

- up identification:
(1) the opportunity of the witness to view the criminal at the time of t he crime, (2) the length of initial observation of the criminal, (3) lighting conditions, (4) distance between the witness and the criminal, (5) the witness ’ s degree of attention, (6) the accuracy of the witness ’ s prior description of the criminal, ( 7) the level of certainty demonstrated by the witness, and (8) any identifications of another person.

Id.

[22] Emerson’s contention on this issue fails for two reasons. First, Emerson cites to a single page of the trial transcript , and nothing on that page indicates that officers employed an impermissibly suggestive procedure when they asked Moorman’s brother to identify the car used in the kidnapping. Second, Emerson does not direct us to any authority to support his assertion that a “show

- up identification” of a car , as opposed to a defendant, is inadmissible

. We cannot say that Emerson’s trial counsel’s performance was deficient when she did not move to suppress this evidence.Court of Appeals of Indiana | Memorandum Decision 18A

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- 1687 | M ay 1, 2019 Page 16 of 16 [23] In sum, Emerson has not demonstrated th at he was denied the effective assistance of his trial counsel. The post

- conviction court did not err when it denied his petition for post

- conviction relief.

[24] Affirmed.

Pyle, J., and Alt ice, J., concur

.