Court of Appeals of Indiana | Memorandum Decision 45A03-1712-PC-2998 | April 1, 2019 Page 1 of 9

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.

APPELLANT PRO SE

Daryl K. Henderson, Jr.

Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Henry A. Flores, Jr.

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Daryl K. Henderson, Jr.,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

April 1, 2019

Court of Appeals Case No.

45A03-1712-PC-2998

Appeal from the Lake Superior 

Court

The Honorable Samuel L. Cappas, 

Judge

Trial Court Cause No.

45G04-1509-PC-9

Najam, Judge.
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Statement of the Case

[1] Daryl K. Henderson, Jr. appeals the post-conviction court’s denial of his 

petition for post-conviction relief. Henderson raises a single issue for our 

review, namely, whether the post-conviction court erred when it denied his 

petition because he was denied the effective assistance of trial counsel. We 

affirm.

Facts and Procedural History

[2] The facts underlying Henderson’s convictions were stated by this Court on 

direct appeal:

On August 2, 2012, Henderson spent his afternoon drinking 

alcohol at his home in Gary, Indiana. At around 4:00 p.m., 

Henderson decided to drive to Rico’s Pizza to get pizza for his 

family. At the time, Henderson’s driver’s license had been 

suspended. Henderson also carried a small handgun on his 

person despite the fact that his permit to carry a handgun had 

since expired. While driving to Rico’s Pizza, Henderson was 

drinking from a can of beer. When he arrived at Rico’s Pizza, 

Henderson entered the restaurant holding his can of beer and 

placed his order. While waiting for his order, he bumped into 

Lawrence McIntosh (McIntosh), with whom he had no prior 

acquaintance. They engaged in small talk when Henderson 

stated that he wanted to buy alcohol, and McIntosh informed 

Henderson that there was a liquor store next door. Shortly 

thereafter, both men exited Rico’s Pizza and entered Party 

Liquors. As they walked in, the cashier at Party Liquors told 

Henderson that he could not serve him if he had an open can of 

beer. Henderson turned around, walked out, placed his empty 

can of beer on the pavement, and walked back in. While 

Henderson was outside tossing his can of beer, McIntosh told the 

cashier that he wished Henderson would leave him alone. 
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Henderson reentered Party Liquors, but since the cashier refused 

to sell him alcohol, he requested McIntosh to purchase alcohol 

on his behalf. The Party Liquors’ surveillance video showed 

McIntosh paying for what looked like a six-pack of beer and 

leaving Henderson inside the liquor store. It further showed 

McIntosh walking to his car, dropping off his six-pack of beer, 

and going back into Rico’s Pizza. Also, it showed Henderson 

leaving Party Liquors and returning to Rico’s Pizza to pick up his 

pizza.

After Henderson picked up his pizza, he saw McIntosh on his 

way out. Henderson approached McIntosh, and both men talked 

briefly. A short while later, Henderson returned to Rico’s Pizza 

to get a drink. When Henderson saw McIntosh seated inside the 

restaurant, he approached McIntosh and started circling him 

while making threatening hand gestures. That provoked 

McIntosh and prompted him to stand up to face Henderson. At 

that point, Henderson told McIntosh, “You want to act like you 

don’t know me? . . . I got something for your ass when you come 

outside.” (Transcript p. 153). McIntosh responded that he was 

tired of Henderson’s “shit” and he told him to leave him alone 

and get his own beers. (Tr. p. 208). McIntosh then punched 

Henderson and a scuffle ensued. The fight did not last long 

because both men were ordered to go outside. Prior to the 

altercation, McIntosh had removed his t-shirt, but upon exiting 

Rico’s Pizza, he began to put it back on. As soon as both men 

were outside, Henderson retrieved his handgun from his pocket, 

aimed it at McIntosh, and fired one shot at close range. 

Henderson fired two more shots at McIntosh as he was running 

away from him. Firing the shots, Henderson told McIntosh, “I 

told you I was gonna do this.” (Tr. p. 237). McIntosh was hit 

twice: in his jaw and chest, with the chest wound causing his 

death. Meanwhile, Henderson ran toward his vehicle, fired two 

more random shots, and reloaded his gun.

A police officer who was on patrol in the nearby area heard the 

gunshots and drove toward the direction of the shots. When he 
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arrived at Rico’s Pizza, he saw people pointing toward

Henderson’s vehicle and he immediately activated his emergency 

lights. Upon seeing the officer, Henderson fired one more shot in 

the officer’s direction and fled from the scene. A high speed 

chase through the city ensued. Henderson’s vehicle eventually 

came to a stop when it hit a stop sign. Henderson attempted to 

flee on foot and hid behind some bushes but was quickly 

apprehended by the officers. Although he resisted arrest, the 

officers were able to subdue him. Upon searching Henderson’s 

vehicle, the officers found a small handgun on the floorboard. 

Because Henderson complained of injuries, he was taken to the 

hospital, for treatment. Henderson became unruly at the hospital 

and he had to be restrained. The following day, Gary police 

detectives interviewed Henderson after advising him of his 

Miranda rights. Henderson narrated four different versions of the 

events leading to the shooting.

On August 4, 2012, the State filed an Information charging 

Henderson with one Count of murder, and one Count of resisting 

law enforcement, [as] a Class D Felony. However, on November 

8, 2012, and subsequently on October 16, 2013, the State 

amended the Information to reflect the following charges: Count 

III, criminal recklessness, a Class D felony; Count IV, resisting 

law enforcement, a Class A misdemeanor; Count V, resisting law 

enforcement, a Class A misdemeanor; Count VI, carrying a 

handgun without a license, a Class A misdemeanor; Count VII, 

driving while suspended, a Class A misdemeanor; Count VIII, no 

valid driver’s license, a Class C infraction; Count IX, speeding, a 

Class C infraction; Counts X-XXVI, disregarding automatic 

signals and disregarding stop signs, all Class C infractions.

Henderson’s jury trial was conducted on November 18, 2013 

through November 22, 2013. At trial, Henderson testified that he 

only shot at McIntosh in self-defense because he believed that 

McIntosh was reaching for something inside his shirt, and he 

feared for his life. Toward the end of the trial, Henderson 

tendered jury instructions on voluntary manslaughter and 
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reckless homicide. The trial court declined to tender the 

voluntary manslaughter instruction but tendered the reckless 

homicide instruction. At the close of the evidence, the jury found 

Henderson guilty of murder and all other Counts except for one 

Count of criminal recklessness, a Class D felony; one Count of 

resisting law enforcement, a Class A misdemeanor; and three of 

the traffic infractions.

On December 19, 2013, the trial court held Henderson’s 

sentencing hearing and sentenced Henderson to consecutive 

sentences of fifty-three years for the murder conviction, and 

fourteen months for one Count of resisting law enforcement, [as] 

a Class D felony. In addition, the trial court sentenced 

Henderson to concurrent sentences of nine months each for one 

Count of resisting law enforcement, a Class A misdemeanor, and 

one Count for carrying a handgun without a license, a Class A 

misdemeanor. Henderson also received a ninety-day sentence in 

the Lake County Jail for driving while suspended.

Henderson v. State, No. 45A03-1401-CR-34, 2014 WL 5089297, at *1-2 (Ind. Ct. 

App. Oct. 9, 2014), trans. denied (“Henderson I”).

[3] Henderson raised a single issue on direct appeal, namely, whether the trial court 

abused its discretion when it did not instruct the jury on voluntary 

manslaughter. The trial court had declined to give the proffered instruction 

after finding no serious evidentiary dispute regarding whether Henderson had 

acted under sudden heat, and we affirmed Henderson’s convictions on appeal. 

Id. at *4-5.

[4] On September 24, 2015, Henderson filed a petition for post-conviction relief, 

and he filed an amended petition on October 11, 2016, alleging ineffective 
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assistance of trial counsel. On December 4, 2017, after a hearing, the postconviction court denied Henderson’s petition. This appeal ensued.

Discussion and Decision

[5] Henderson contends that he was denied the effective assistance of trial counsel.

1

 

Our standard of review in such appeals is clear:

“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 

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). Further:

 

1

 To the extent that Henderson, pro se, purports to assert as a separate issue that “the post-conviction court 

violated substantive due process in denying post-conviction relief,” the argument in support of that 

contention is merely a reiteration of his contentions in support of his ineffective assistance of counsel claim. 

Appellant’s Br. at 12.
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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).

Id. at 682.

[6] Henderson contends that his trial counsel rendered ineffective assistance 

because his counsel did not investigate whether McIntosh was a gang member, 

which would have supported Henderson’s self-defense claim, and because his 

counsel did not depose three of the State’s witnesses prior to trial. We address 

each argument in turn.

Failure to Investigate Victim’s Alleged Gang Affiliation

[7] Henderson maintains that his trial counsel was ineffective because he did not 

investigate McIntosh’s background to determine whether he had been a 

member of a gang. Henderson asserts that “Henderson’s perceptions of 

[McIntosh] as a deadly threat based on his gang affiliation” would have 

supported his self-defense claim at trial. Appellant’s Br. at 9. 
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[8] However, as the post-conviction court stated, while evidence of a murder 

victim’s prior bad acts is admissible to prove that the victim had a violent 

character which frightened the defendant, a defendant offering such evidence

“must present evidence that he knew about the specific bad acts in question 

before he killed the victim.” Appellant’s App. Vol. III at 8 (citing Holder v. 

State, 571 N.E.2d 1250, 1254 (Ind. 1991)). In support of his amended petition 

for post-conviction relief, Henderson did not present any evidence that 

McIntosh was a gang member. Moreover, Henderson did not present any 

evidence that he knew at the time of the murder that McIntosh was a gang 

member.2

 Accordingly, Henderson has not shown that his trial counsel’s 

performance was deficient when he did not investigate whether McIntosh was a 

gang member.

Failure to Depose Witnesses

[9] Henderson also contends that his trial counsel was ineffective because he did 

not depose three of the State’s witnesses, namely, Juanita Hernandez, Lisa 

Shinkle, and Vanessa Thomas. Henderson maintains that “counsel’s failure to 

depose the witnesses undermined counsel’s ability to cross-examine [the] 

witnesses and to present evidence in support of the self-defense theory.” 

Appellant’s Br. at 11. We cannot agree.

 

2

 At the hearing on his petition, Henderson asserted that McIntosh had “gang-related tattoos” on his body, 

and Henderson asked his trial counsel why he did not seek to introduce those tattoos into evidence. Tr. at 

36. But, other than his self-serving testimony, which the trial court had discretion to find not credible,

Henderson did not present evidence that McIntosh’s tattoos reflected his membership in a gang or otherwise

suggested that McIntosh was a violent person. Henderson has not sustained his burden to show that 

McIntosh’s tattoos were relevant to his self-defense claim.
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[10] Our Supreme Court has held that a counsel’s failure to interview or depose 

State’s witnesses does not, in itself, constitute ineffective assistance of counsel. 

Williams v. State, 724 N.E.2d 1070, 1076 (Ind. 2000). Henderson must identify 

what additional information would have been discovered and how he was 

prejudiced by the absence of this information. See id. On appeal, other than 

pointing out a single inconsistency in Hernandez’ testimony, which his trial 

counsel had pointed out during his cross-examination of her at trial, Henderson 

does not explain what deposing the three witnesses prior to trial would have 

accomplished. We cannot say that he was denied the effective assistance of 

trial counsel.

[11] In sum, Henderson has not shown that his trial counsel’s performance was 

deficient. Neither has Henderson shown that, but for counsel’s alleged errors, 

the result of the proceeding would have been different. The post-conviction 

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

[12] Affirmed.

Baker, J., and Robb, J., concur.