Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019 Page 1 of 16

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

Jonathan D. Harwell

Harwell Legal Counsel LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

18A-PC-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-PC-107649

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1687 | May 1, 2019 Page 2 of 16

Statement of the Case

[1] Jerry Emerson appeals the post-conviction court’s denial of his petition for postconviction 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 concluded that he was not denied the effective assistance of trial 

counsel. We affirm.

Facts and Procedural History

[2] On direct appeal, this Court set out the facts and procedural history as follows:

On July 30, 2007, Emerson and Samuel “Buddha” Fancher were 

driving in an Indianapolis neighborhood and spotted seventeenyear-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 Sampson 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 him 
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that body shots don’t work, 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. 49A02-0809-CR-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 postconviction 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 negative 
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judgment.” Id. at 274. In order to prevail on an appeal from the 

denial of post-conviction 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 postconviction court in this case entered findings of fact and 

conclusions of law in accordance with Indiana Post-Conviction 

Rule 1(6). Although we do not defer to the post-conviction 

court’s legal conclusions, “[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.” 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. 2017). 

[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 in 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 ‘counsel’ 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 probability 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).
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Campbell v. State, 19 N.E.3d 271, 274 (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 testify; three instances of alleged 

prosecutorial misconduct; one instance of alleged hearsay; and an allegedly

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

 We 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 under a fundamental error analysis, which is a different analysis 

than that presented under the ineffective assistance of counsel claims in this appeal.
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[8] In Smith, defendant’s counsel made no objections when two witnesses testified 

that “they feared they might be harmed if they testified,” but they had not been 

threatened. Id. And the Supreme 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 unspecified 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 Moorman 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 testifying. 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 Moorman’s fears, we cannot say that 

trial counsel’s failure to object rose to the level of deficient performance under 

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

 

2

 As we stated in Emerson I, “the testimony regarding Moorman’s reluctance to testify was vague and did not 

necessarily implicate that Moorman was afraid of the defendant.” 2009 WL 1974552, at *10.
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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 three instances of alleged 

prosecutorial misconduct: when the prosecutor elicited testimony about a prior 

trial date that was rescheduled when Moorman failed to appear; testimony 

referencing Emerson’s exercise 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 attempt,” 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 Tudor 
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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 results 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 “the jury was not left with an inference that 

Emerson’s speedy trial request thwarted 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 speedy trial 
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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 argument 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’re 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 inference” 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. As we stated in Emerson I, “the State’s comment was 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.
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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 Moorman’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) provides that out-of-court statements are 

not hearsay when the “declarant testifies at the trial . . . and is subject to crossexamination 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 Detective 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 hearsay. Evid. R. 801(d)(1)(C). Emerson cannot show that his trial 

counsel’s performance was deficient when she made no objection.
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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 instructions for attempted murder under an 

accomplice liability theory.3

 Emerson asserts that a proper attempted murder 

jury instruction sets forth the following elements: that 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, where, as here, 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 performance 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 Sampson’s murder, but it charged Emerson as an accomplice in the 

attempted murder of Moorman.
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“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 constitutes 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 causes 

another person to commit a crime, is guilty of the crime, even 

though he does not personally participate in each act constituting 

the crime.
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A person may be convicted of a crime by aiding, inducing, or 

causing another to commit a crime even if the other 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 nor 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 aiding, 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 Emerson

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” another 
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person, his 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 counsel’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 “the 

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 identifications.” 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 mistaken 
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identification. Gordon v. State, 981 N.E.2d 1215, 1218 (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 the 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.
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[23] In sum, Emerson has not demonstrated that 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 Altice, J., concur.