APPELLANT PRO SE : ATTORNEYS FOR APPELLEE:

DARRELL McNARY GREGORY F. ZOELLER

Attorney General of Indiana

RICHARD C. WEBSTER

Deputy Attorney General

Indianapolis, Indiana



## IN THE

COURT OF APPEALS OF INDIANA

DARRELL McNA RY, )

)

Appellant

- Petitioner, )

)

vs. ) No. 20A05

- 1211

- PC

- 607

)

STATE OF INDIANA, )

)

Appellee

- Respondent. )

APPEAL F ROM T HE E LKHART CIRCU IT COURT

The Honorable Terry C. Shewmaker, Judge

Cause No. 20 C01-0606-FB-31

December 27, 2013

MEMORANDUM DECISION

– NOT FOR PUBLICATION

MATHIAS, Judge

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.2 Darrell McNary appeals pro se the order of the Elkhart Circuit Court denying his

petition for post

- conviction relief. On appeal, McNary presents six issues, which we

renumber and restate as: (1) whether the trial court erred in concluding that McNary was

not denied the effective assistance of trial counsel; and (2) whether the trial court err ed in

concluding that McNary was not denied the effective assistance of appellate counsel.

We affirm.

Facts and Procedural History

The facts underlying McNary’s convictions were set forth in our memorandum

decision on direct appeal as follows:

On Janu ary 10, 2006, McNary sold 1.342 grams of crack cocaine to

Justin Simpson (Simpson), a cooperating source for the Elkhart County

Interdiction and Covert Enforcement Unit. The controlled buy occurred

near the 88

- mile marker on the U.S. 20 bypass in Elkhart County, in the

presence of undercover Goshen Police Detective Jose Miller (Detective

Miller). The drug transaction was recorded by a digital recording device in

the cigarette lighter of Simpson’s car. That recording was eventually

transferred onto a CD.

On June 23, 2006, the State filed an Information charging McNary with

dealing cocaine, as a Class B felony, I.C. § 35

- 48

- 4

- 1. At the initial

hearing held on July 13, 2006, a public defender was appointed to represent

McNary. On September 28, 2006, the tr ial court, after warning McNary of

the dangers of representing himself, reluctantly granted McNary’s request

to proceed pro se and appointed a public defender to serve as standby

counsel. On October 5, 2006, the trial court tentatively set a trial date of

April 30, 2007. At a hearing on January 25, 2007, the trial court urged

McNary to allow the public defender to assist him in his defense, but

McNary declined. The trial court confirmed the trial date of April 30,

2007.

On April 12, 2007, McNary asked th at the trial be rescheduled “as a

result of appeal or mandamus action he’s pursuing.” The trial court granted

McNary’s request and reset the trial for September 10, 2007. At a hearing

on April 26, 2007, the trial court again warned McNary of the dangers of

proceeding pro se, but McNary affirmed his desire to represent himself.3 On May 24, 2007, McNary filed a Motion to Obtain Funds For Expert

and Investigative Assistance requesting, among other things, an “audio

production analyst” to help him show that th e audio recording of the

alleged drug transaction had been manipulated. The trial court directed

McNary “to provide the Court with an estimate of the cost and

identification of who his alleged expert would be with respect to such

issues.” On August 22, 2 007, McNary provided the trial court with

Defendant’s Information of Names and Cost of Expert Witnesses. McNary

claimed that “[t]he cost for audiotape authentication will be $3,500, and

court testimony will be $3,500 per day, plus travel from New York.”

However, McNary never identified who his expert would be, and the trial

court never explicitly ruled on this motion.

On August 29, 2007, McNary filed a motion seeking a continuance of

the September 10, 2007, trial date. The trial court granted McNary’s

m otion and reset the trial for April 21, 2008. At a hearing on October 18,

2007, McNary indicated to the trial court that he intended to employ private

counsel. The trial court reduced McNary’s bond, and he was released on

bond shortly thereafter.

During a hearing held on April 3, 2008, McNary told the trial court that

he would not be ready for the April 21st trial and requested another

continuance. The trial court denied McNary’s request. At a hearing on

April 14, 2008, McNary told the trial court that he had hired an attorney

and would be represented at trial. However, on April 18, 2008, McNary

filed another motion for a continuance. McNary stated that he had

contacted several attorneys but that none of them would represent him

unless he could get a c ontinuance.

A jury trial was held on April 21

- 22, 2008. On the morning of April 21,

the trial court held a hearing on McNary’s motion for a continuance. The

trial court denied McNary’s motion, noting how long the case had been

pending and how long McNary had to obtain a private attorney. McNary

then asked that his standby counsel from the public defender’s office

represent him at trial, and the trial court so ordered. Over McNary’s

objection, the trial court admitted into evidence the audio recording of the

alleged drug transaction. Both Simpson and Detective Miller testified that

the audio recording was an accurate representation of the drug transaction.

The jury found McNary guilty as charged. On May 15, 2008, the trial court

sentenced McNary to fif teen years, with thirteen years executed and two

years suspended to reporting probation.

McNary v. State

, No. 20A03

- 0806

- CR

- 296 (Ind. Ct. App. Feb. 26, 2009) (record

citations and footnotes omitted).4 On direct appeal, McNary claimed that: (1) the tria l court erred by denying his

motion for a continuance that was filed three days before the trial was to begin; (2) the

trial court erred in admitting into evidence the audio recording of the controlled buy; and

(3) that McNary’s sentence was inappropriate. This court disagreed and affirmed

McNary’s conviction and sentence. See id

.

McNary filed a pro se petition for post

- conviction relief on December 14, 2009.

The State filed its answer on January 8, 2010. McNary later amended his petition three

times. The post

- conviction court held hearings on McNary’s petition on November 22,

2011 and August 9, 2012, after which the court took the matter under advisement. On

October 18, 2012, the trial court issued an order denying McNary’s petition. McNary

now app eals.

Post

- Conviction Standard of Review

Post

- conviction proceedings are not “super appeals” through which convicted

persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State

,

761 N.E.2d 389, 391 (Ind. 2002). Rather, p ost

- conviction proceedings afford petitioners

a limited opportunity to raise issues that were unavailable or unknown at trial and on

direct appeal. Davidson v. State

, 763 N.E.2d 441, 443 (Ind. 2002). A post

- conviction

petitioner bears the burden of estab lishing grounds for relief by a preponderance of the

evidence. Henley v. State

, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial

of post

- conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Id

. T o prevail on appeal from the denial of post

- conviction relief, the5 petitioner must show that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite that reached by the post

- conviction court. Id

. at 643

- 44.

Where, as here, the post

- conviction court makes findings of fact and conclusions

of law in accordance with Indiana Post

- Conviction Rule 1(6), we cannot affirm the

judgment on any legal basis, but rather, must determine if the court’s findings are

sufficien t to support its judgment. Graham v. State

, 941 N.E.2d 1091, 1096 (Ind. Ct.

App. 2011), aff’d of reh’g

, 947 N.E.2d 962. Although we do not defer to the post

conviction court’s legal conclusions, we review the post

- conviction court’s factual

findings unde r a clearly erroneous standard. Id. Accordingly, we will not reweigh the

evidence or judge the credibility of witnesses, and we will consider only the probative

evidence and reasonable inferences flowing therefrom that support the post

- conviction

court’s decision. Id.

Ineffective Assistance of Trial Counsel

McNary first argues that the post

- conviction court clearly erred in denying his

claim of ineffective assistance of trial counsel. Our supreme court summarized the law

regarding claims of ineffective assistance of trial counsel in Timberlake v. State as

fo llows:

A defendant claiming a violation of the right to effective assistance of

counsel must establish the two components set forth in Strickland v. Washington

, 466 U.S. 668 (1984). First, the defendant must show that

counsel’s performance was deficient. This requires a showing that

counsel’s representation fell below an objective standard of reasonableness,

and that the errors were so serious that they resulted in a denial of the right

to counsel guaranteed the defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance prejudiced the defense.

To establish prejudice, a defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the6 proceeding would have bee n different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.

Counsel is afforded considerable discretion in choosing strategy and

tactics, and we will accord those decisions deference. A strong

presumption ari ses that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.

The Strickland Court recognized that even the finest, most experienced

criminal defense attorneys may not agree on the id eal strategy or the most

effective way to represent a client. Isolated mistakes, poor strategy,

inexperience, and instances of bad judgment do not necessarily render

representation ineffective. The two prongs of the Strickland test are

separate and indep endent inquiries. Thus, [i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice

. . . that

course should be followed.

753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted). McNary claims that

his trial counsel was ineffective in several respects. We address each of these claims in

turn.

A. Failure to Tender Instruction Defining “Delivery”

McNary first claims that his trial counsel was ineffective for failing to tender an

instruction defini ng the term “delivery.” McNary was convicted of dealing cocaine, and

in order to convict him, the jury was instructed that it had to find beyond a reasonable

doubt that McNary “did knowingly deliver cocaine, pure or unadulterated[.]” Direct

Appeal App

. p p. 327

- 28 (emphasis added). Although the jury was given an instruction

on the definition of “knowingly,” the jury was not given an instruction regarding the

statutory definition of “delivery.” “Delivery” is defined by statute as “an actual or

constructiv e transfer from one (1) person to another of a controlled substance, whether or

not there is an agency relationship; or (2) the organizing or supervising of an activity

described in subdivision (1).” Ind. Code § 35

- 48

- 1

- 11.7 McNary testified at trial tha t he did not actually deliver the cocaine, and there was

an inconsistency between the State’s two main witnesses

— the confidential informant and

the undercover police officer involved in the controlled buy

— as to whom McNary

actually handed the cocaine. McN ary argues on appeal that, had his counsel objected to

the court’s failure to instruct the jury on the meaning of the term “delivery” or if he had

tendered his own instruction, the trial court would have been obligated to give the

instruction. Further, Mc Nary argues that the jury could not have come to a proper verdict

without being instructed on the meaning of “delivery.” We disagree.

First, we note that McNary’s trial counsel testified at the post

- conviction hearing

that he did not recall specifically why he had not requested an instruction on the

definition of “delivery.” But he further testified that, as a matter of trial strategy, he does

not ask for such definitional instructions because he feels the jury is more open to

argument with regard to suc h terms. We emphasize that trial counsel is afforded

considerable discretion in choosing strategy, and we must afford these decisions

deference. Timberlake

, 753 N.E.2d at 603. We will not second

- guess trial counsel’s

strategic decisions simply because, in hindsight, they may not have served the

defendant’s best interests. State v. Moore

, 678 N.E.2d 1258, 1261 (Ind. 1997).

Further, we do not think that “delivery” is a term that the jury was unable to

understand without a statutory definition. Indeed, “delivery” has been defined to include

“[t]he action of handing over, or conveying into the hands of another[.]” Oxford English

Dictionary Online, h ttp://www.oed.com/view/Entry/49488 ; see also Merriam

- We bster

Online, http://www.merriam

- webster.com/dictionary/delivery (defining delivery as “the8 act of taking something to a person or place”). Thus, it was not impossible for the jury to

reac h a proper verdict without special instruction on the meaning of the term “delivery.”

Moreover, it is not enough for McNary to show that the jury should have been

instructed on the statutory definition of delivery. He must also show how he was

prejudice d by the lack of such an instruction. See Potter v. State

, 684 N.E.2d 1127, 1135

(Ind. 1997). Here, McNary has failed to show how he was prejudiced. In fact, the

statutory definition of “delivery” is broader than the common definition, as it includes

ac tual or constructive transfer and also the organization or supervision of such a transfer.

Therefore, had the jury been instructed on the statutory definition of “delivery,” it would

have increased McNary’ s chances of being convicted. Accordingly, we can not say that

the post

- conviction court clearly erred in concluding that McNary’s trial counsel was not

ineffective for failing to request a jury instruction on the statutory definition of

“delivery.”

B. Failure to Object to Accomplice Liability Instruct ion

McNary next claims that his trial counsel was ineffective for failing to object to

the accomplice liability instruction given by the trial court. The trial court gave the jury

the following instruction on accomplice liability:

A person who knowingly or intentionally aids, induces, or causes another

person to commit an offense commits that offense, 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.

Direct Appeal App. p. 333. This instruction tracks the accomplice liability statute,

Indiana Code section 35

- 41

- 2

- 4.9 McNary admits that his trial counsel did object to the trial court’s instruction on

grounds that i t changed the State’s theory of the case and that accomplice liability had not

been pled in the charging information. The trial court, however, correctly overruled this

objection. See Laney v. State

, 868 N.E.2d 561, 565

- 66 (Ind. Ct. App. 2007) (observing

that it is “axiomatic in Indiana that one may be charged as a principal yet convicted on

proof that he or she aided another in the commission of a crime,” and that “[e]ven where

a defendant is charged as a principal, the jury may be instructed on accessor y liability

where the evidence presented at trial supports such an instruction.”).

McNary claims that his trial counsel should have instead objected on grounds that

the State had failed to present any evidence of McNary acting as an accomplice, as both

o f the State’s eyewitnesses testified that McNary himself delivered the cocaine.

However, McNary himself testified that he drove a woman to the controlled buy, that she

was the one who delivered a package to the undercover officer, that he knew that this

w oman was trying to “rip off” the purchasers, and that he “somewhat” knew that there

was going to be an exchange of drugs. See Trial Tr. pp. 417

- 19. Although his testimony

conflicted with that presented by the State’s witnesses, there was nevertheless som e

evidence that McNary assisted another in the delivery of cocaine. This was sufficient to

permit the trial court to instruct the jury on accomplice liability. See Taylor v. State

, 840

N.E.2d 324, 338 (Ind. 2006) (noting that an instruction on accomplice liability is proper

where there is some evidence that a second party was involved in the crime).

McNary also argues that his trial counsel should have objected to the trial court’s

accomplice liability instruction because the instruction was incomplete. Specifically, he10 claims that the trial court’s instruction was deficient because it “failed to focus on the

knowledge and conduct of McNary and wholly failed to instruct that McNary must have

engaged in some affirmative conduct in aiding or inducing the offense.” Appellant’s Br.

pp. 35

- 36. We disagree.

The instruction given by the trial court stated that “a person who knowingly or

intentionally aids

, induces, or causes another person to commit an offense commits that

offense[ .]” Direct Appeal App. p. 333 (emphasis added). And the jury was instructed on

the meaning of “knowingly” and “intentionally.” Thus, the instructions as a whole

clearly informed the jury with regard to the knowledge and conduct of McNary. And

with rega rd to McNary’s claim that the instruction failed to instruct the jury that McNary

must have engaged in affirmative conduct, we have previously held that the word “aid”

denotes affirmative conduct or action and sufficiently informs the jury of the affirmati ve

action requirement. Boney v. State

, 880 N.E.2d 279, 294 (Ind. Ct. App. 2008), trans.

denied

.

Moreover, given the strength of the State’s case

- in

- chief, which included the

testimony of multiple eyewitnesses and a n audio recording of the controlled buy

, it is

highly unlikely that the jury credited McNary’s testimony at all. That is, it is much more

likely that they found him guilty as a princip al

, not as an accomplice. Thus, even if the

trial court’s instruction was incomplete, McNary has not shown th at the result of the trial

would have been different.

The question is not whether the trial court should have given the pattern jury

instruction on accomplice liability, as this is usually the best practice. Instead, the11 question is whether McNary’s tri al counsel was ineffective for failing to object to the trial

court’s instruction on accomplice liability and whether he was prejudiced by this failure.

Under the facts and circumstances before us, t he post

- conviction court did not clearly err

in concludi ng that McNary’s trial counsel was not ineffective for failing to object to the

given accomplice liability instruction.

C. Failure to Object to “False” Testimony

McNary next claims that his trial counsel was ineffective for failing to object to

the test imony of the confidential informant, Simpson. During deposition and during his

trial testimony, Simpson stated that the undercover officer, Detective Miller, handed

McNary the buy money and that McNary handed the Detective Miller cocaine. When the

State used Simpson as a foundational witness to establish the authenticity of the audio

recording of the transaction, the prosecutor asked, “does this audio recording fairly and

accurately capture the drug transaction between you and Darrell McNary on January 10

,

2006?” Simpson responded, “Yes.” Trial Tr. pp. 268

- 69. Detective Miller, however,

testified that Simpson handed the buy money to McNary and that McNary then reached

over Detective Miller’s body to hand the cocaine directly to Simpson.

McNary interpr ets Simpson’s assertion that the audio recording was accurate as

tantamount to corroborating Detective Miller’s testimony that McNary handed the

cocaine to Simpson, which was contrary to Simpson’s actual testimony.

This interpretation seems to reflect a fundamental misunderstanding about the

nature of the prosecutor’s question regarding the accuracy of the audio recording. The

admission of a sound recording must be preceded by a foundation disclosing that the12 recording is, inter alia

, authentic and corre ct and of such clarity as to be intelligible and

enlightening to the jury. Hall v. State

, 897 N.E.2d 979, 981 (Ind. Ct. App. 2008) (citing

Lamar v. State

, 258 Ind. 504, 512

- 13, 282 N.E.2d 795, 800 (1972)). The prosecutor’s

question was not an attempt to get Simpson to vouch for Detective Miller’s testimony; it

was simply an attempt to establish the foundation for the admission of the audio

recording. Indeed, the prosecutor asked the same question of Detective Miller.

Based upon his flawed interpretatio n of the prosecutor’s question, McNary claims

the State elicited false testimony from Simpson to which his trial counsel should have

objected and which constituted prosecutorial misconduct. We disagree.

First, to the extent that McNary attempts to asser t a free

- standing claim of

fundamental error due to prosecutorial misconduct, our supreme court has repeatedly held

that free

- standing claims of fundamental error may not be presented in a claim for post

conviction relief. See Stephenson v. State

, 864 N.E .2d 1022, 1029 (Ind. 2007) (citing

Sanders v. State

, 765 N.E.2d 591, 592 (Ind. 2002)).

Instead, McNary must present his claim through the lens of a claim of ineffective

assistance of trial counsel. But even then, his claim fails. McNary does not explai n on

what basis his trial counsel should have objected to keep Simpson’s testimony out of

evidence. We are unaware of any valid evidentiary objection to inconsistent or even false

testimony. In fact, McNary’s trial counsel testified at the post

- convictio n hearing that he

knew of no objection to this testimony.

McNary also claims that his trial counsel was ineffective for failing to impeach

Simpson with his allegedly false testimony. Again, however, McNary’s claim that13 Simpson’s testimony was false is b ased upon a misunderstanding of the nature of the

prosecutor’s foundational question. Moreover, his counsel did reference the confusion

with regard to whom McNary actually handed the cocaine in his closing argument. See

Trial Tr. p. 430 (“we have not yet had two people in the same place saying I gave it to

him or I gave it to him or who gave it to who.”). In short, McNary did not establish that

his trial counsel was ineffective with regard to the admission of Simpson’s testimony.

D. Failure to Suppres s Probable Cause Affidavit

McNary further claims that his trial counsel was ineffective for failing to attempt

to suppress the probable cause affidavit supporting the charging information, which he

claims relied on improper hearsay and was not properly att ested. McNary claims that,

had his counsel sought to suppress this probable cause affidavit, he would have been

entitled to a suppression hearing. McNary’s argument is misplaced.

Deficiencies regarding the probable cause affidavit supporting a charging

information do not warrant a dismissal of the information. Frierson v. State

, 572 N.E.2d

536, 537 (Ind. Ct. App. 1991) (citing Hicks v. State

, 544 N.E.2d 500 (Ind. 1989); Gilliam

v. State

, 270 Ind. 71, 383 N.E.2d 297 (1978)). This is so because “the pro bable cause

affidavit is not the manner by which a defendant is charged with a crime, but rather

serves to justify the pre

- trial detention of a defendant based on alleged facts reasonably

believed to show the defendant committed the crime.” Id

. (quoting S tate v. King

, 502

N.E.2d 1366, 1369 (Ind. Ct. App. 1987)). In fact, a probable cause determination is not

even a prerequisite to the filing of an information. Id

.14 Moreover, to the extent that McNary claims that he was entitled to a suppression

hearing on the probable cause affidavit, he fails to explain precisely what would have

been suppressed as a result of this hearing, and makes no claim that any of the evidence

the State used against him was the fruit of this arrest. Accordingly, McNary’s trial

co unsel was not ineffective for failing to seek to suppress the probable cause affidavit.

II. Ineffective Assistance of Appellate Counsel

McNary lastly claims that the post

- conviction court clearly erred when it

determined that he was not denied the e ffec tive assistance of appellate counsel. When we

review claims of ineffective assistance of appellate counsel, we use the same standard

applied to claims of ineffective assistance of trial counsel. Harris v. State

, 861 N.E.2d

1182, 1186 (Ind. 2007). That i s, the post

- conviction petitioner must show that appellate

counsel’s performance fell below an objective standard of reasonableness and that there

is a reasonable probability that, but for the deficient performance of counsel, the result of

the proceeding would have been different. Id

. Claims of ineffective assistance of

appellate counsel generally fall into three categories: (1) denial of access to an appeal; (2)

waiver of issues; and (3) failure to present issues well. Reed v. State

, 856 N.E.2d 1189,

1 195 (Ind. 2006).

To show that counsel was ineffective for failing to raise an issue on appeal, the

defendant must overcome the strongest presumption of adequate assistance, and judicial

scrutiny is highly deferential. Id

. To evaluate the performance pr ong when counsel

failed to raise issues upon appeal, we apply the following test: (1) whether the unraised

issues are significant and obvious from the face of the record and (2) whether the15 unraised issues are “clearly stronger” than the raised issues. Id

. If the analysis under this

test demonstrates deficient performance, then we examine whether, “the issues which

. . .

appellate counsel failed to raise, would have been clearly more likely to result in reversal

or an order for a new trial.” Id

. Our sup reme court has repeatedly noted that we must

consider the totality of an attorney’s performance to determine whether the client

received constitutionally adequate assistance and must 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

. at 1196 (quotin g Bieghler v. State

, 690 N.E.2d 188, 194 (Ind. 1997)).

Moreover, ineffective assistance is very rarely found in cases where a defendant asserts

that appellate counsel failed to raise an issue on direct appeal because the decision of

what issues to raise i s one of the most important strategic decisions to be made by

appellate counsel. Id

.

McNary claims that his appellate counsel was ineffective for failing to present on

direct appeal the issues he claims his trial counsel was ineffective for failing to p ursue,

i.e., the trial court’s failure to instruct the jury on the meaning of the word “delivery,” the

trial court’s instruction on accomplice liability, the introduction of allegedly

- false

testimony by Simpson, and the alleged infirmity of the probable ca use affidavit

supporting the charging information. We have determined above that these claims are16 without merit. Therefore, McNary’s appellate counsel was not ineffective for failing to

present these claims on direct appeal. 1

Conclusion

The post

- convic tion court did not clearly err in concluding that McNary was not

denied the effective assistance of trial and appellate counsel.

Affirmed.

BRADFORD, J., and PYLE, J., concur.

1 McNary also complains that the post

- conviction court clearly erred by dismissing his claim of

prosecutorial misconduct. However, as noted above, McNary may not present a free

- standing claim of

fundamental error on post

- conviction review. Stephenson

, 86 4 N.E.2d at 1029.