Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 1 of 67 A TTORNEYS FOR A PPELLANT Stephen T. Owens Public Defender of Indiana Anne Murray Burgess Joanna Green Deputy Public Defenders Indianapolis, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

John R. Myers II, A

ppellan t -Petitioner,

v. 

### State of Indiana, A

ppelle e -Respondent May 28, 2015 Court of Appeals Cause No. 55A05-1312-PC-608 Appeal from the Morgan Superior Court
The Honorable G. Thomas Gray, Judge

Cause No. 55D01-0902-PC-33



### Friedlander, Judge.

[1] John R. Myers II appeals from the denial of his petition for post-conviction relief (PCR). He raises the foll owing restated issues on appeal:

1. Did the post-conviction court err in concluding that Myers was not denied the effective assist ance of trial counsel?Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 2 of 67 2. Did the post-conviction court err in concluding that Myers’s due process rights were not violated by the State’s alleged failure to disclose all exculpatory ev idence to the defense?
3. Did the trial court err in concluding that Myers was not entitled to relief based on his claims of prosecutorial misconduct?
[2] We affirm.

[3] The facts underlying Myers’s conviction were set forth as follows in this court’s opinion arising out of his direct appeal:
In the spring of 2000, John Myers II lived approximately seven tenths of a mile from the intersection of North Maple Grove Road and West Maple Grove Road, at 1465 West Maple Grove Road, north of Bloomington in Monroe County. Myers was on vacation from work the week of May 29 through June 2.

On the morning of May 31, 2000, Jill Behrman, an accomplished bicyclist who had just completed her freshman year at Indiana University, left her Bloomington home to take a bicycle ride. She logged off of her home computer at 9:32 a.m. Behrman did not report to the Student Recreational Sports Center, where she was scheduled to work from noon to 3:00 p.m. that day, nor did she appear at a postwork lunch scheduled with her father and grandparents. Following nationwide search e fforts, Behrman’s remains were ultimately discovered on March 9, 2003, in a wooded area near the intersection of Warthen and Duc kworth Roads in Morgan County. The cause of her death was ruled to be a contact shotgun wound to the back of the head.

With respect to the events surrounding Behrman’s disappearance, one report indicated that a young woma n matching Behrman’s description was seen riding her bicycle north of Bloomington on North Maple Grove Road at approximately 10:00 a.m. the morning of May 31. A tracking dog later corroborated thi s report. While another report placed Behrman south of Bloom ington at 4700 Harrell Road at approximately 9:38 a.m., some authori ties later discounted this reportCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 3 of 67 due to her log-off time of 9:32 a. m. and the minimum fourteen minutes it would take to bicycle to Harrell Road. The tracking dog did not detect Behrman’s scent tr ail south of Bloomington.

At approximately 8:30 a.m. on the morning of May 31, 2000, in the North Maple Grove Road area, a witness saw a white “commercial looking” Ford van without identifi cation on its doors or sides drive slowly past his driveway on North Maple Grove Road, heading south. Two men were inside the van. This witness saw the van two additional times that morning by a pproximately 9:00 a.m. and later identified the van as “exactly like” a Bloomington Hospital van.

At some point before noon on May 31, 2000, another witness saw a bicycle later determined to be Behrman’s lying off of the east side of North Maple Grove Road near the intersection of North Maple Grove Road and West Maple Grove Road. The location of the bicycle was approximately one mile from Myers’ s residence and ten and one-half miles from Behrman’s house.

On May 31, the date of Behrma n’s disappearance, two witnesses separately noted that the windows in Myers’s trailer were covered, which was unusual. One of these witnesses also observed that Myers’s car was parked fifty yards from its normal location and remained out of sight from the road for approximately three days. Myers told this witness that he had parked his car in that secluded spot because he did not want anyone to know he was home.

Myers’s account of his activities during his vacation week of May 29 through June 2 was reportedly that he was “here and there.” Myers’s employer at the time was the Bloom ington Hospital warehouse, where he had access to two white panel Ford vans. Besides being “here and there,” Myers indicated that he had been mostly at home, that he had gone to a gas station, and that he had gone to Kentucky Kingdom but found it was closed. Myers addi tionally stated that he and his girlfriend, Carly Goodman, had cance lled their plans to go to Myrtle Beach, South Carolina, and to King s Island, Ohio, that week. Phone calls made from Myers’s trailer on May 31 were at the following times: 9:15 a.m.; 9:17 a.m.; 9:18 a.m.; 10:37 a.m.; 10:45 a.m.; and 6:48 p.m.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 4 of 67 Myers’s mother, Jodie Myers, testified that she had made those calls. [1] The calls were to drive-in theaters and various state parks.

Myers was reportedly almost hyst erical on May 31 and spoke of leaving town and never coming back. Myers’s aunt, Debbie Bell, observed that Myers had been very depressed in the preceding month and believed that this was due to prob lems with his girlfriend. In late April 2000, Myers had called Bell because he had been having problems with his girlfriend and felt like “a balloon full of hot air about to burst.”

Carly Goodman was Myers’s girlfriend beginning in approximately late October 1999. In March of 2000, Myers took Goodman for a long drive through Gosport, “over a br idge where there was a creek and into some woods.” Myers pulled his car into a clearing in the woods where the two of them argued, which scared Goodman. Although it was nighttime, Goodman observed the appearance of this clearing from the car’s headlights. In la te April or early May of 2000, Goodman broke off her relationship with Myers. Goodman denied that she and Myers had ever made plan s to go to Myrtle Beach or to Kings Island the week of May 29.

On June 5, 2000, Bell again spoke with Myers. Myers mentioned that a girl had been abducted in the ar ea, and he was afraid he would be blamed for it. Myers further stated that the girl’s bicycle had been found about a mile from his hous e and that “they blame [him] for everything.” Myers additionally asserted, “[T]hey haven’t found her body yet” and guessed that the girl was dead. In that same conversation, Myers indicated that he had been stopped by a

1 Myers asserts that this is an ina ccurate reflection of the record. A fter reviewing Jodie Myers’s testimony, we agree. Although a portion of her testimony, when vi ewed in isolation, appears to support the assertion that she made the phone calls on May 31, 2000, her testim ony when read in its entirety reveals otherwise. Instead, Jodie testified that after obtaining her son’s telephone records for that date, she called the listed numbers to determine to whom they belonged. It is appa rent to us that the jury was not misled into believing that Jodie had placed the phone calls, and the State made no such argument. It is also apparent that this court’s misunderstanding of the record had no impa ct on its resolution of Myers’s direct appeal.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 5 of 67 roadblock and was “scared” of roadblocks, but he later changed his mind, laughed, and said he was not really “scared.”

Following a tip due to this conver sation, on June 27, 2000, Detective Rick Crussen of the Bloomington Police Department interviewed Jodie and Myers’s father, John Myer s Sr., at their residence at 3909 West Delap Road. The following day, Detective Crussen interviewed Myers.

On June 27, 2000, immediately after Detective Crussen interviewed Myers’s parents and the day before he interviewed Myers, Myers called his grandmother, Betty Swaffa rd, and asked to borrow $200. Myers told Swaffard he was unabl e to come to her house for the money because there were roadblocks on Maple Grove Road, and he did not want to leave his home. Myers additionally stated that he was a suspect in the Jill Behrman disapp earance. Myers did not come to Swaffard’s home for the money.

In July 2000, Bell noticed that John Myers Sr. was unusually nervous and agitated when in Myers’s presen ce. Sometime in approximately August of 2000, Myers’s brother, Samuel, who owned a twelve-gauge shotgun and had stored it at his parents’ house on Delap Road since approximately 1997, noted that the gun was missing.

Myers raised the topic of Behrman’ s disappearance multiple times and in multiple contexts following her disappearance. Before Detective Crussen interviewed him, Myers fa lsely stated to his Bloomington Hospital supervisor that police ha d questioned him in connection with Behrman’s disappearance because he r bicycle was found close to his home. Also in June of 2000, Myer s stated to a co-worker that he wondered whether authorities had inve stigated a barn in a field located on Bottom Road off of Maple Grove Road. Additionally, some weeks after Behrman disappeared, Myers to ld another co-worker during a delivery run that Behrman’s bicycl e was found in his neighborhood, and that Behrman was probably abducted near that site. Later in 2000 or 2001, while driving with his then- girlfriend, Kanya Bailey, Myers directed Bailey’s attention to a lo cation a short distance from his mother’s residence and stated he had found Behrman’s bicycle there.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 6 of 67 In the late spring to late summer of 2001, Myers again raised the topic of Behrman’s disappearance with ano ther co-worker. As the two were driving on Bottom and Maple Grov e Roads, Myers pointed out where he lived and stated that Behrman’s bicycle had been found close to where he used to live. A short time later, while on Maple Grove Road, Myers stated that if he was ever going to hide a body he would hide it in a wooded area up “this way,” pointing north. On another occasion, Myers stated to this co-w orker that he knew of someone in Florida who had Behrman’s identification card or checkbook.

Sometime in November or Decembe r of 2001, Myers raised the topic of Behrman’s disappearance with a family member, indicating his bet that Behrman would be found in the woods. During this conversation, Myers further indicated his familiarity with the Paragon area and with Horseshoe Bend, where he liked to hunt.

Also in 2001, Myers stated to his mother, Jodie, that he had been fishing in a creek and had found a pair of panties and a bone in a tree. Jodie suggested that this might be helpful in the Behrman case, and Myers agreed to call the FBI. FBI Agent Gary Dunn later returned the call and left a message. Myers told Jodie that they should save the answering machine tape in case they were questioned.

Sometime in 2002, Wendy Owings confessed to Behrman’s murder, claiming that she, Alicia Sowders- Evans, and Uriah Clouse struck Behrman with a car on Harrell Road, stabbed her with a knife in her chest and heart, wrapped her body in plastic tied with bungee cords, and disposed of her body in Salt Creek. In September 2002, authorities drained a portion of Salt Creek. They found, among other things, a knife, a bungee cord, and two sheets of plastic. Owings later recanted her confession.

On March 27, 2002, Myers, who at the time was in the Monroe County Jail on an unrelated charge, told Correctional Officer Johnny Kinser that he had found some lette rs in some food trays one morning that he believed Kinser should look at, apparently in connection with the Behrman disappearance. Myers sa id he felt bad about what had happened to that “young lady” and that he wished to help find her ifCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 7 of 67 he could. Myers additionally com piled a list of places potentially providing clues to Behrman’s locati on. Indiana State Police Trooper James Minton investigated the list, including gravel pits off of Texas Ridge Road between Stinesville and Gosport. A route from Gosport to the intersection of Warthen and Duckworth Roads in Morgan County passes by Horseshoe Bend. [2]

On March 9, 2003, Behrman’s remain s were discovered by a hunter in a wooded area near the intersection of Warthen and Duckworth Roads in Morgan County approximately thi rty-five to forty yards from a clearing in the timber north of Wa rthen Road. Auth orities recovered approximately half of the bones in Behrman’s skeleton. No soft tissue remained. Six rib bones were among the bones missing from her skeleton. There was no evidence of stab or knife wounds, nor was there evidence of blunt force tr auma. Investigators recovered a shotgun shell wadding from the sc ene, as well as 380 number eight shot lead pellets. The wadding fo und at the scene was typical of a twelve-gauge shotgun shell wadding. The cause of Behrman’s death was ruled to be a contact shotgun wound to the back of the head. Scattered skull fragments and the presen ce of lead pellets in a variety of places, together with certain so il stains consistent with body decomposition, suggested that afte r being shot, Behrman’s body had come to rest and had decomposed at the spot where it was found. No clothing was found at the scene. There is nothing in the record to clarify whether Behrman’s clothing, if it had been left at the scene, would or would not have completely disintegrated prior to her body being found.

In March 2003, Myers told anothe r co-worker, who had brought a newspaper to work announcing the discovery of Behrman’s remains, that the woods pictured in the newspaper article looked familiar to him, and that he had hunted ther e before. According to this coworker, the woods pictured in the newspaper article did not appear

2 Myers asserts that this court’s opinion in his direct appeal reflects a misunderstanding concerning the content of the list of locations Myers compiled. Myers apparently believes that the opinion stated that the note listed a route to the site at which Behrman’s rema ins were eventually discovered. The opinion contains no such assertion. Instead, the court noted that a rout e between Gosport, near one of the places on the list, and the area where Behrman’s remains were later found passes by Horseshoe Bend, an area where Myers liked to hunt.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 8 of 67 distinctive. Myers also stated tha t it was good that Behrman had been found and that he was surprised that he had not been contacted because he knew the people who police thought had committed the crime. Myers knew Wendy Owings, who had falsely confessed to the crime, as well as Uriah Clouse and Alicia Sowders-Evans. Myers had a “cocky” tone of voice when he made these comments, according to the co-worker.

More than a year later, in November 2004, Myers called his grandmother, Swaffard. Myers, who was upset and stated that he needed time to himself, said to Sw affard, “Grandma, if you just knew the things that I've got on my mind. [I]f the authorities knew it, I’d be in prison for the rest of my life.” Myers further stated that his father, John Myers Sr., “knew” and had “[taken] it to the grave with him.” Subsequently, when Myers arrived at Swaffard’s house, he said with tears in his eyes, “Grandma, I wish I wasn’t a bad person. I wish I hadn’t done these bad things.”

Indiana State Police Detectives Tom Arvin and Rick Lang interviewed Myers again on May 2, 2005. During this taped interview, Myers denied having told anyone in his family that he was “scared” of the roadblocks or that he had talked to anyone besides the police about the case. Also in May of 2005, Myers, who was again in the Monroe County Jail on an unrelated charge , mentioned to his bunkmate that the state police were investigatin g him because Behrman’s bicycle had been found in the vicinity of his house. Myers made approximately three or four references to Behr man’s bicycle and was nervous and pacing at the time. During that conversation, Myers, who was also angry, made reference to the “bitch,” and stated to this bunkmate, “[I]f she [referring to Behrman] wouldn’t have said anything, . . . none of this would have happened.”

On February 17, 2006, Detective La ng took Goodman on a thirty-sixmile drive north of Myers’s home on Maple Grove Road and into rural Morgan County. Goodman recognized a clearing in the woods near the corner of Warthen and Duckwo rth Roads, approximately thirtyfive to forty yards from where Behr man’s remains were discovered, as the place that Myers had driven her in March 2000.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 9 of 67 Myers v. State , 887 N.E.2d 170, 176-80 (Ind. Ct. App. 2008) (footnotes and citations to the record omitted), trans. denied . A grand jury indicted Myers for Behrman’s murder in April 2006. A twelve-day jury trial commenced on October 16, 2006, at the conclusion of which Myers was found guilty as charged and sentenced to a term of sixt y-five years. Th is court affirmed Myers’s conviction on direct appeal an d our Supreme Court denied transfer.

[4] Myers filed a pro se PCR petition on February 2, 2009. Counsel subsequently entered appearances on Myers’s behalf and amended the petition. An evidentiary hearing was held over several days in April and May 2013, at the conclusion of which the post-conviction court took the matter under advisement. The post-conviction court is sued its written order denying Myers’s PCR petition on November 18, 2013. Myers now appeals.

[5] In a post-conviction proceeding, the petiti oner bears the burden of establishing grounds for relief by a prepon derance of the evidence. Bethea v. State , 983 N.E.2d 1134 (Ind. 2013). “When appealing the denial of post-conviction relief, the petitioner stands in the position of one a ppealing from a negative judgment.” Id. at 1138 (quoting Fisher v. State , 810 N.E.2d 674, 679 (Ind. 2004)). In order to prevail, the petition er must demonstrate th at the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the postconviction court’s conclusion. Bethea v. State , 983 N.E.2d 1134. Although we do not defer to a post-conviction court’s legal conclusions, we will reverse its findings and judgment only upon a sh owing of clear error, i.e., “that whichCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 10 of 67 leaves us with a definite and firm conviction that a mistake has been made.” Id. at 1138 (quoting Ben–Yisrayl v. State , 729 N.E.2d 102, 106 (Ind. 2000)).

1.

[6] Myers first argues that his trial coun sel were constitutionally ineffective. 3 A petitioner will prevail on a claim of ineffe ctive assistance of counsel only upon a showing that counsel’s performance fe ll below an objective standard of reasonableness and that th e deficient performance prejudiced the petitioner. Bethea v. State , 983 N.E.2d 1134. To satisfy th e first element, the petitioner must demonstrate deficient performance, which is “representation that fell below an objective standard of reason ableness, committing errors so serious that the defendant did not have th e ‘counsel’ guaranteed by the Sixth Amendment.” Id. at 1138 (quoting McCary v. State , 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the second element, the petitioner must show prejudice, which is “a reasonable probability that, bu t for counsel’s errors, the result of the proceeding would have been different.” Id. at 1139. “A reasonable probability is one that is sufficien t to undermine confidence in the outcome.” Kubsch v.
State , 934 N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington , 466 U.S. 668, 694 (1984)).

[7] There is a “strong presumption” that counsel rendered adequate service. Bethea
v. State , 983 N.E.2d at 1139. “We afford counsel considerable discretion in

3 Myers was represented at trial by the father-son defense team of Hugh and Patrick Baker, with Patrick Baker acting as lead counsel. Except where we find it necessary to differentiate between the two, we will refer to both Bakers collect ively as “trial counsel.”Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 11 of 67 choosing strategy and tactics, and ‘[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.’” State v. Hollin , 970 N.E.2d 147, 151 (Ind. 2012) (quoting Timberlake v. State , 753 N.E.2d 591, 603 (Ind. 2001)) (alteration in original). Indeed, “strategic choices ma de after thorough investigation of law and facts relevant to plausible option s are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonab le professional judgments support the limitations on investigation.” Strickland v. Washington , 466 U.S. at 690-91. Moreover, because a petitioner must prove both deficient performance and prejudice in order to succeed, the failur e to prove either element defeats the claim. See Young v. State , 746 N.E.2d 920 (Ind. 2001) (holding that because the two elements of Strickland are separate and independent inquiries, the court may dispose of the claim on the ground of lack of sufficient prejudice if it is easier). Myers has raised numerous clai ms of ineffective assistance of trial counsel. We address them each in turn.

A.

[8] Myers raises a number of arguments with respect to the admission into evidence of a redacted version of his May 2, 2005 police interrogation. First, he argues that trial counsel were ineffective fo r agreeing to the redactions because portions of the statement in which he denied any involvement in Behrman’s disappearance and murder were excised, and those statements would have been helpful to the defense.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 12 of 67 [9] The interrogation in question was conducted in two parts. In the first part of the interview, Myers was qu estioned by Indiana State Police Detectives Rick Lang and Tom Arvin, and Myers repeat edly denied any involvement in or knowledge of Behrman’s disappearance an d murder. Myers was then arrested on a separate charge of receiving stolen property, booked, fingerprinted, and swabbed for DNA. Thereafter, a second , post-arrest interv iew was conducted by Detective Jeff Heck, during which My ers again denied any involvement in Behrman’s disappearance and murder. The State, defense, and trial court spent a substantial amount of time discussi ng redactions of the interrogation. Ultimately, the jury heard an audio re cording of and was provided with a written transcript of the partially redact ed pre-arrest interview; the post-arrest interview was omitted entirely. Myers does not appear to object to the manner in which the pre-arrest interview was reda cted. Instead, he argues that the jury should also have heard the post-arrest interview.

[10] We have reviewed both the redacted and unredacted interrogation, and Myers has not established either deficient perf ormance or prejudice stemming from the redaction of the post-arrest interview. The post-arrest interview contained several long monologues in which the interviewer attempted to appeal to Myers’s moral sensibilities, followed by relatively short responses from Myers. Some of these monologues spanned several pages of transcript and made specific reference to Myers’s past subs tance abuse and recovery process. The trial court described the post-arrest inte rview as largely filled with “a lot of irrelevant gibberish” that “add[ed] nothin g to the factual determination in thisCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 13 of 67 case.” Trial Transcript at 26. We think this is a fa ir characterization. Although Myers continued to proclaim his innoce nce in the post-arrest interview, his denials of involvement were merely cumu lative of his previous statements in the pre-arrest interview, which the jury heard. Myers also made statements in the post-arrest interview that the jury co uld have viewed as flippant under the circumstances. For example, at one po int, Myers stated, “y ou know, as we’re sitting there talking, I’m thinking cigarettes, I’m thinking coffee[.]” PCR Exhibit 305A at 154. It was not deficient pe rformance for trial counsel to agree to redact the post-arrest inte rview in its entirety beca use it could have harmed Myers and, in any event, would have adde d little, if anything, to the pre-arrest interview. For the same reason, Myers was not prejud iced by the redaction.

[11] Myers also argues that counsel performe d deficiently by failing to object to portions of Detective Arvi n’s and Detective Lang’s testimony concerning the May 2, 2005 interrogation. Specifica lly, Myers notes that counsel did not object to Detective Arvin’s testimony that Myers’s demeanor during the interview was “nonchalant” and “cavalier” and that his answers appeared to be rehearsed. Trial Transcript at 2207. Additionally, on cross-examination by trial counsel, Detective Arvin asserted that Myers never “adamantly” or “expressly” denied guilt. Id. at 2211-12. In response to a jury question, Detective Arvin again testified that Myers’s demeanor was nonchalant and cavalier. Additionally, Detective Lang testified that he did not expect Myers to confess to the murder based on his “prior intelligen ce” and because “murder is one of theCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 14 of 67 least things someone is going to confess to.” Id. at 2380-81. According to Myers, these statements constituted inadmissible opinion testimony.

[12] The sum total of Myers’s argument that this testimony was inadmissible is contained in the following conclusory stat ement in his appellant’s brief: “The opinion evidence offered by [Detective] Arvin was objectionable, irrelevant and prejudicial. Ind. Evidence Rule 701; Hensley v. State , 448 N.E.2d 665, 667 (Ind. 1983) (lay witnesses may not give opinions where jury is well qualified to form an opinion).” Appellant’s Brief at 28-29. Assuming arguendo that the testimony was objectionable, Myers has not establ ished prejudice. With respect to Detective Arvin’s testimony that Myers never adamantly or expressly denied guilt, trial counsel went on to elicit test imony clarifying that Myers had, in fact, denied involvement in Behrman’s di sappearance and murder “numerous” times. Trial Transcript at 2211. With respect to the characterizations of Myers’s responses as rehearsed and his demeanor as nonchalant and cavalier, the jury heard the audio recording of the redact ed interview and received a written transcript thereof, and was therefore ab le to draw its own conclusions as to whether Myers’s responses and tone were inappropriately casual. Myers has made no attempt to explain how Detect ive Lang’s testimony that he did not expect Myers to confess prejudiced him, and we are unable to imagine how it might have done so. Myers has not esta blished that the outcome of the trial would have been different had his trial counsel objected to this testimony.

[13] Finally, Myers takes issue with trial co unsel’s failure to challenge the State’s characterization of the May 2, 2005 in terrogation in its opening statement andCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 15 of 67 closing argument. Specifically, Myer s takes issue with the prosecutor’s assertion in opening statements that Myers’s demeanor wa s nonchalant—but, as we explained above, the jury heard Myers’s interview and was able to draw its own conclusions in this regard. My ers also notes that the State used a Powerpoint slide presentation in its clos ing argument, and seve ral of the slides included claims that Myers never denied guilt. The presentation consisted of over sixty slides, five of which bore the subheading “When pressed Defendant never denies guilt”, follow ed by excerpts from th e transcript of Myers’s interrogation. PCR Exhibit 132. We note, however, that the slide presentation was not admitted as an exhibit at trial; in stead, it was used by the State solely as a visual aid during closing arguments. Moreover, our review of the trial transcript reveals that the State did not verbally assert in its closing argument that Myers never denied guilt. The de fense, on the other hand, emphasized in its closing argument that Myers repeat edly denied guilt during his police interrogation. Most importantly, the ju ry was provided a transcript and heard an audio tape of the interrogation, duri ng which Myers repeatedly denied any involvement in Behrman’s disappearance and murder. Under these facts and circumstances, we cannot conclude that Myers has establishe d that he suffered prejudice as a result of trial counsel’s fail ure to object to the us e of the slides.

B.

[14] Next, Myers argues that trial counsel Pa trick Baker was ineffective for telling the jury in opening statem ents that the defense woul d present certain evidence, and then failing to do so. Specifica lly, during opening statements, PatrickCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 16 of 67 Baker stated that during a search for Behrman shortly after her disappearance, a bloodhound alerted to the residence of Brian Hollars, who trial counsel had identified as an alternativ e suspect, but that the dog was called off. Counsel also told the jury that there was eviden ce that Hollars and Behrman were seen arguing days before she di sappeared. Trial counsel di d not present evidence to support these claims.

[15] The parties acknowledge that Patrick Bake r was professionally disciplined for, among other things, stating that a dog had alerted at Hollars’s home. See In re Baker , 955 N.E.2d 729 (Ind. 2011). Our Supreme Court found that “[t]hese statements were false and Respondent should have known that no evidence would be admitted at tria l to support them.” Id. at 729. The court noted, however, that there was no allegation in the disciplinary proceedings that counsel had provided substandard services to Myers or that Myers or the State were prejudiced by the misrepresentatio n in his opening statement. We will presume, however, that an attorney wh o tells the jury that he will present evidence that he either knows or shou ld know will not be presented has acted unreasonably for the purposes of the Strickland analysis. Thus, at least with respect to trial counsel’s statement th at a search dog alerted to Hollars’s residence, we accept Myer s’s argument that trial counsel’s performance was deficient. We are left to consider whether the st atements prejudiced Myers within the meaning of Strickland

.

[16] In support of his argument that trial counsel’s unfulfilled promise in this regard amounted to ineffective assistance of counsel, Myers directs our attention toCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 17 of 67 two decisions of the United States Court of Appeals for the Seventh Circuit: United States ex rel. Hampton v. Leibach , 347 F.3d 219 (7th Cir. 2003) and Barrow v. Uchtman , 398 F.3d 597 (7th Cir. 2005). As this court has explained, “although decisions of th e Seventh Circuit ‘are entitled to our respectful consideration,’ its decisions on questions of federal law are not binding on state
courts.” Jackson v. State , 830 N.E.2d 920, 921 (Ind. Ct. App. 2005). Even so, we conclude that the cases cited do no t mandate the conclusion that Myers’s trial counsel was ineffective.

[17] In United States ex rel. Hampton v. Leibach , 347 F.3d 219, the Seventh Circuit found that Hampton’s trial counsel was ineffective for failing to investigate exculpatory eyewitnesses to the crime. The court also co nsidered Hampton’s argument that his trial coun sel was ineffective for failin g to fulfill two promises made during opening statement. First, Hampton’s trial counsel stated that Hampton would testify that he was not in volved in the gang-related attack for which he was on trial, and second, that the evidence would show that Hampton was not a member of or in volved with any gang.

[18] The court explained that unforeseeable developments at trial may justify reversals of this nature, but that “whe n the failure to pr esent the promised testimony cannot be chalke d up to unforeseeable even ts, the attorney’s broken promise may be unreasonable, for ‘little is more damaging than to fail to produce important evidence that had been promised in an opening.’” Id. at 257 (quoting Anderson v. Butler , 858 F.2d 16, 17 (1st Ci r. 1988)). The court concluded that to the extent trial coun sel had legitimate reasons to concludeCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 18 of 67 that Hampton should not testify, those reasons should have been obvious from the outset of the case. In reaching it s conclusion that counsel’s performance was unreasonable, the court emphasized the fact that trial counsel had explicitly promised the jury that Hampton hims elf would testify, reasoning that “Hampton’s unexplained failure to ta ke the witness stand may well have conveyed to the jury the impression that in fact there was no alternate version of the events that took place, and th at the inculpatory testimony of the prosecution’s witnesses was essentially correct.” Id. at 258.

[19] The court also found trial counsel’s fail ure to present testimony that Hampton was not involved with a gang unreasonable , noting that such evidence would bear on the likelihood that he had part icipated in a crime with “unmistakable gang overtones.” Id. at 259. Testimony of this nature was readily available to counsel; he simply failed to pursue it. The court concluded that counsel’s failure to present such evid ence “could only have undercut the credibility of the defense with the jury.” Id. With respect to the prejudice element of the Strickland standard, however, the court conclude d that trial counsel’s “breach of the promises he made in the opening st atement was not so prejudicial that it would support relief in and of itself[.]” Id. at 260. Rather, the breach “serve[d] to underscore the more important failur e to investigate exculpatory occurrence witnesses.” Id.

[20] In Barrow v. Uchtman , 398 F.3d 597, th e Seventh Circuit again encountered a claim that counsel was ineffe ctive for failing to deliver on promises made during opening statements. In Barrow , trial counsel in openin g statement informed theCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 19 of 67 jury that “we will tell you about” th e crime and the defendant’s denial of involvement. Id. at 606 n.7. During the trial, however, Barrow’s counsel presented no evidence what soever in defense. The court concluded that Barrow had not established that he was prejudiced by trial counsel’s fa ilure to deliver on his promise to present exculpatory eviden ce. In reaching this conclusion, the court carefully distinguished Hampton , noting that in that case, the court had “placed special importance on the fact that trial counsel had specifically promised the jury that the defendant would testify himself .” Id. at 606 (emphasis in original). Barrow’s counsel, on th e other hand, made no explicit promise that Barrow would testify; rather, he promised to present other exculpatory evidence. The court also noted that the nature of the evidence against Barrow was qualitatively different from that in Hampton . In Hampton , the sole evidence against the defendant was eyewitness te stimony, but the primary evidence against Barrow was his own confession. Under these circumstances, Barrow’s personal testimony was far less critical than Hampton’s. Mo reover, the content of Barrow’s proposed testimony was unli kely to have altered the ultimate verdict given the abundant evidence agains t him. Thus, the court concluded, Barrow could not establish that he wa s prejudiced by his trial counsel’s unfulfilled promises.

[21] Like the court in Barrow , we also conclude that My ers was not prejudiced by trial counsel’s unfulfilled promises. Firs t, we note that tr ial counsel made no promise that Myers himself would testify. Patrick Baker’s re presentations that evidence would be presented that a dog had followed Behrman’s scent toCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 20 of 67 Hollars’s residence and that Hollars and Behrman had been seen arguing shortly before her disappearance are more akin to the promises of trial counsel in Barrow to present exculp atory evidence.

[22] Moreover, although trial co unsel failed to deliver on these specific promises, other evidence casting suspicion on Ho llars was presented to the jury. Evidence was presented esta blishing that Hollars had hired Behrman to work at Indiana University’s Stud ent Recreational Sports Ce nter (SRSC) and that Hollars and Behrman shared an interest in cycling. In fact, Hollars had given Behrman his telephone number because he was trying to sell a bicycle and believed someone in Behrman’s cyclin g club might be interested. Becky Shoemake, who was Behrman’s cousin, roommate, and closest friend on campus, testified that Behrman had conf ided in her that an older man had asked her out and that Behrman was concerned because the man was old enough to drink, but Behrman was no t. Shoemake did not know the man’s identity or if Behrman accepted the date. Detective Lang testified that Behrman’s mother had told him that Behrman was probably sexually active during her second semester. Trial coun sel admitted into ev idence condoms, a pregnancy test, a package of emergency contraceptive pills, and several books on pregnancy found in Behrman’s room . Behrman’s mother told Detective Crussen that Hollars had ca lled the Behrman residence three or four times on June 1, 2000, which she found strange. Evidence was also presented that Hollars was married and that he owned a twelve-gauge shotgun and loaded his own shotgun shells using number eight sh ot, the same size used in Behrman’sCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 21 of 67 murder. Importantly, the jury was pres ented with evidence that a bloodhound tracked Behrman’s scent near Hollars’s resi dence. Hollars test ified that he was questioned by police on the day of Behrman’s disappearance and again by Detective Arvin in 2003, and he beli eved that he was under suspicion.

[23] From the jurors’ questions, it is clear that the jury co nsidered the possibility of Hollars’s involvement in Behrman’s murd er. A juror asked Behrman’s mother questions about when Behrman first met Hollars. Additionally, a juror asked Wes Burton, Behrman’s supervisor at the SRSC, whether Hollars was romantically interested in Behrman. Th e jurors also wanted to know whether written records could corroborate Hollars’s and Burton’s recollections that they had been working together at the SRSC at the time Behrman went missing. A juror also asked if Hollars had left the SRSC at any time on May 31, 2000, and Hollars admitted that he had left the prem ises to check on at hletic fields.

[24] The jurors also took note of the possibility that Behr man was pregnant. A juror asked Behrman’s mother if Behrman ha d appeared to be sick, nauseated, fatigued, or lightheaded, and Behrman’s mo ther recalled that Behrman had felt poorly one morning in May. A juror also asked Behrman’s mother if she believed Behrman would have confided in her if she had been pregnant. The jurors did not, however, question the canine handler who testified concerning the bloodhound search co nducted a few days after Behrman’s disappearance about trial counsel’s claim that a dog had alerted at Hollars’s residence but been pulled off. We therefore conclude that counsel has not established prejudice stemming from trial counsel’s failure to fulfill his promise to present evidenceCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 22 of 67 that the bloodhound alerted to Hollars’s residence and that Hollars was seen arguing with Behrman shortl y before her disappearance.

[25] Myers also argues that Patrick Baker was ineffective for failing to deliver on his claim in opening statement that Carl Salzman, the Monroe County Prosecutor at the time of Behrman’s disappearance , would testify that Myers was never a suspect and that Owings, Sowders-Ev ans, and Clouse were his primary suspects. In support of this argument, Myers directs our attention to Salzman’s deposition testimony, taken just days before trial, in which Myers claims Salzman “said exactly the opposite[.]” Appellant’s Brief at 31.

[26] Myers overstates Salzman’s deposition testimony. Salzma n testified in his deposition that his office investigated Behrman’s disappearance until her remains were discovered in Morgan Co unty, at which time the investigation was turned over to Morgan County officials. Salzman testified that during the Monroe County investigation, he neve r filed charges against anyone in Behrman’s disappearance. Salzman wa s presented with a probable cause affidavit for Wendy Owings, and he testif ied that the plan was to use the charge to get to Sowders-Evans and Clouse. Sa lzman declined to file charges against Owings because he did not believe the ev idence was sufficient. Salzman was never presented with a probable ca use affidavit for Myers.

[27] Salzman testified further that after Mor gan County took over the investigation, he continued to receive tips from memb ers of the community and jail inmates, which he would pass on to Detective La ng. One such tip came from BettyCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 23 of 67 Swaffard, Myers’s grandmother, who told Salzman that Myers had been behaving strangely at the time of Be hrman’s disappearance. Salzman found Swaffard to be credible and her story to be compelling, so he passed it on to Detective Lang and urged him to invest igate further. Thus, from Salzman’s testimony, it is apparent that Myers wa s not presented to Salzman as a suspect during Salzman’s official investigatio n as the Monroe County Prosecutor. While it appears that Salzman eventual ly came to personally suspect Myers based on Swaffard’s testimony, this o ccurred well after his official involvement in the case ended. During the Monroe County investigation, the only person Salzman considered charging was Wendy Owings. Thus, while Patrick Baker’s assertion that Myers was not one of Salzman’s suspects could have been clearer, it was not demo nstrably false.

[28] Nevertheless, because Salzma n did not testify at trial, Patrick Baker’s promise concerning the substance of his testim ony necessarily went unfulfilled. We note, however, that at the PCR hearing, Myers elicited no testimony from trial counsel concerning the failure to call Sa lzman as a witness. Because Myers has made no attempt to discount the possibil ity that trial counsel made a strategic decision not to call Salzman to testify, he has not satisfied his burden of establishing deficient perf ormance on this issue. See United States ex rel. Hampton v. Leibach , 347 F.3d 219 (explainin g that unexpected developments at trial may justify an attorney’s deci sion not to present eviden ce promised in opening statements); Specht v. State , 838 N.E.2d 1081, 1087 (Ind. Ct. App. 2005) (explaining that “an action or omission that is within the range of reasonableCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 24 of 67 attorney behavior can only support a cl aim of ineffective assistance if that presumption is overcome by specific ev idence as to the performance of the particular lawyer”), trans. denied . Nor has he establishe d sufficient prejudice to justify relief on this basis. The jury was presented with ampl e evidence that the initial investigation focuse d on Owings, Sowders-Evans, and Clouse, and that Myers was not developed as the primary su spect until much later. Under these facts and circumstances, we cannot conclude that trial co unsel’s failure to elicit testimony from Salzman on this issue had an appreciable impact on the jury.

C.

[29] Next, Myers argues that trial counsel were ineffective for failing to adequately undermine the State’s theory that Behrman had ridden her bicycle north on North Maple Grove Road, i.e., in the di rection of Myers’s residence, on the date she disappeared. According to Myer s, it was crucial for the defense to establish that Behrman took a route south of Bloomington that morning because if she did so, phone records placing Myers at his residence that morning would have exonerated him.

[30] Myers’s arguments on this is sue presume that the only reasonable strategy trial counsel could have pursued was one that depended heav ily on establishing that Behrman rode south rather than north on the date of her disappearance. But trial counsel were not limited to presenting a single theory of defense. Indeed, in a case such as this, based solely on circumstantial evidence, the most advantageous approach may be to esta blish reasonable doubt by presentingCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 25 of 67 multiple possible alternat ive theories of the crime that point away from the accused’s guilt. As the U.S. Supreme Court has explained, “[t]o support a defense argument that the prosecution ha s not proved its case it sometimes is better to try to cast pervasive suspicio n of doubt than to strive to prove a certainty that exonerates.” Harrington v. Richter , 562 U.S. 86, 109 (2011).

[31] At the PCR hearing, when as ked what he wanted the jury to believe concerning Behrman’s bicycle route, Patrick Baker init ially stated that he “didn’t want her going north.” PCR Transcript at 598. He went on to clarify, however, that he had “two theories, a southern route and a northern route”. Id. Specifically, he testified as follows:
We wanted the jury to believe that she couldn’t have made it to [Myers’s] house and back in time for work. So I don’t know if we differentiated between the southern route and maybe partially of the northern route but we wa nted the jury to believe that she couldn’t have ridden to his house and back.

Id. at 598-99. Thus, it was not trial counsel’s strategy to eliminate the possibility that Behrman had ridden no rth—rather, trial counsel sought to establish that Behrman would not have fo llowed the north route all the way to Myers’s residence in light of her schedule that day.

[32] We cannot conclude that tria l counsel’s decision to purs ue a defense theory that allowed for the possibility that Behrma n had ridden north was unreasonable. As an initial matter, we note that tr ial counsel presented evidence supporting the theory that Behrman had ridden south. Trial counsel elicited testimony thatCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 26 of 67 Maral Papakhian, a high school classmat e of Behrman’s, had reported seeing Behrman riding her bike on Harrell Ro ad, i.e., the southern route, on the morning of her disappearance. The jury was also presented with evidence of Owings’s confession, in which she stated that she and Sowd ers-Evans had been passengers in Clouse’s vehicle when he struck Behrman and abducted her on Harrell Road. Additionally, in both open ing statements and closing arguments, trial counsel argued that the evidence presented supported a conclusion that Behrman had ridden south.

[33] We also note, however, that trial counse l’s Hollars theory was premised in part on the fact that a bloodhound had scen ted Behrman on the northern route near Hollars’s residence. Thus, presenting a theory of defense that depended on proving to a certainty that Behrman had ridden south woul d have undermined this alternative theory. Moreover, there was other evidence that Behrman had ridden north. Robert England testified that he saw a cyclist matching Behrman’s description riding north on Ma ple Grove Road eith er at 10:00 a.m. on the day Behrman disappeared or at 9:00 a.m. the next day. Moreover, Behrman’s bike was discovered on the no rth route, less than one mile from Myers’s residence. Although it has been suggested that Behrman could have taken the south route, been abducted an d subdued there, and her bike dumped on the north route, the timeline for such a scenario is tight. Behrman logged off of her computer at 9:32 a.m. and her bi ke was spotted near Myers’s residence “before noon.” Trial Transcript at 1226. Additionally, evidence from the bloodhound tracking search was consis tent with Behrman having ridden theCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 27 of 67 bike to its final location as opposed to being driven there in a vehicle. Thus, although it is not imposs ible for the bike to have been dumped, we cannot conclude that it was unreasonable for tria l counsel to decline to pursue a theory of defense that was wholly dependent on the jury reaching such a conclusion. While it might have been helpful to th e defense to conclusively eliminate the possibility that Behrman had ridden nort h that morning, th e evidence simply did not allow for such certainty.

[34] Moreover, none of the ev idence Myers argues shou ld have been used to impeach the theory that Behrman rode north was particularly strong. For example, Myers argues that trial counse l should have established that shortly after Behrman’s disappearance, police in vestigated routes south and east of Bloomington. Considering th e breadth of the investigat ion in this case and the fact that investigators were simultaneously investigatin g possible routes north of Bloomington, such evidence was unlikel y to impress the jury. Myers also suggests that evidence sh ould have been presente d to the effect that investigators and Behrman’s family beli eved “[f]or years” that Behrman had ridden south. Appellant’s Brief at 33. But the jury was well aware that investigators primarily pursued Owings’s confession, which placed Behrman on the south route, until Behrman’s remains were discovered.

[35] Myers also argues that trial counsel should have cross-examined Behrman’s parents “on their prior belief their daug hter would not have ridden north based on the limited time she had, her riding habits and her habits preparing for work and leaving the house.” Id. at 33. The PCR court found that declining toCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 28 of 67 pressure the Behrmans about the specif ics of their daughter’s bike route reflected a valid trial strategic decision to avoid alienating the jury by upsetting grieving parents. 4 In any event, Behrman’s parents clearly did not know which direction she had ridden that day, and we cannot conclude that cross-examining them as to their guesses on the matter would have had a significant impact on the jury. Finally, Myers argues that trial counsel should have impeached the testimony of Dr. Norman Houze, a cyclis t who conducted a timed ride from the Behrman residence to the location where Behrman’s bike was discovered, with evidence that the ride was acco mplished with a police escort. 5 But Myers has not directed our attention to any evidence suggesting that the police escort had an appreciable impact on the speed at wh ich the ride was conducted. For all of these reasons, we also conclude that Myers has not established the requisite prejudice.

[36] Myers also argues that trial counsel we re ineffective for failing to object to hearsay testimony discrediting Papakh ian’s sighting of Behrman on Harrell Road on the morning of her disappear ance. Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. Boatner v.
State , 934 N.E.2d 184 (Ind. Ct. App. 2010 ). As a general rule, hearsay is

4 Myers argues that trial counsel was not concerned about alienating the jury because Patrick Baker crossexamined Behrman’s mother extensively about “whether her murdered daughter might have been pregnant with a married man’s baby.” Appellant’s Brief at 34. We note, however, that Patrick Baker testified at the PCR hearing that he believed that evidence concer ning a possible pregnancy was crucial. It was not unreasonable for trial counsel to forego intense cross-ex amination on other, less impo rtant issues in order to avoid appearing antagonistic.

5 The results of the timed ride sugges ted that Behrman might have been ab le to take the northern route and still make it to work at the SRSC in time for her shift. Trial counsel cross-examined Dr. Houze extensively.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 29 of 67 inadmissible unless the statement falls within one of the established hearsay exceptions. Yamobi v. State , 672 N.E.2d 1344 (Ind. 1996).

[37] Detective Arvin testified that Papakhian told police she believed she saw Behrman on the 4700 block of Harrell Ro ad on the morning of Wednesday, May 31, but that she could not be one hundred percent certain that she had not seen her on Tuesday. Detective Ar vin testified further that when he interviewed Papakhian, she recalled having an argument with her boyfriend at a small party the night before the sighti ng, and she named several other people who had attended the party. Detective Ar vin testified that he interviewed five people as a result of his interview wi th Papakhian, and that he ultimately reported to Detective Lang “that the ti meline that [Papakhian] had presented did not fit.” Trial Transcript at 2203. He testified further that based on his investigation, he believed that it was more likely that Papakhian had seen Behrman on Tuesday, the day before her disappearance. Detective Arvin explained that Papakhian told him that she regularly left her house forty-five minutes before her 10:20 a.m. class ( i.e., at 9:35 a.m.) and Detective Arvin determined that it would take her only three minutes to drive to the 4700 block of Harrell Road. Because Behrman had logged off of her computer at 9:32 a.m., and it would take a minimum of fi fteen minutes for her to bike from the Behrman residence to Harrell Road (not including additional time to change clothes, put on cycling shoes, fill a wate r bottle, etc.), Detective Arvin believed that Behrman could not have made it to the 4700 block of Harrell Road in time for Papakhian to have seen her ther e on the date of her disappearance.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 30 of 67 [38] Myers argues that Detective Arvin testif ied to statements made to him by the other partygoers Papakhian identified, and that a h earsay objection to this testimony would have been sustained. 6 But Myers has not directed our attention to a single out-of-court stat ement made by these unnamed individuals and admitted into evidence through De tective Arvin’s testimony. Instead, Detective Arvin testified that after interviewing Papakhian and five other witnesses, he came to the conclusion th at Papakhian’s timeline did not fit and she had probably seen Behrman on Tuesday. When giving a further explanation of why he reached the conc lusion, Detective Arvin referred not to any statements or information gathered fr om the partygoers, but to the timeline he had worked out based on Papakhian’ s statements and Behrman’s computer logoff time. Because Myers has not established that De tective Arvin testified to any out-of-court statements made by th e unnamed witnesses he interviewed, Myers has not established that trial counse l were ineffective for failing to object based on hearsay.

D.

[39] Myers also argues that his trial counsel were ineffective for failing to object to the admission of evidence of a bloodhound tracking search, or alternatively for failing to impeach the reliability of such evidence. At trial, Porter County

6 Myers makes no argument that counsel should have ob jected when Detective Arvin testified at length to out-of-court statements made by Papakhian, and for good reason. Because Papakhian did not testify at trial, the only way to get evidence of her sighting before the jury was through the te stimony of others. Myers makes no argument that trial counsel were ineffect ive for failing to call Papakhian as a witness, and Papakhian did not testify at the PCR hearing.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 31 of 67 Sheriff’s Deputy and canine handler Char les Douthett testified concerning a search he performed with his bloodhound , Sam. Deputy Douthett testified that he had been working with Sam for over ten years, and that he and Sam had attended numerous seminars and training s and worked homicide investigations in six states. Deputy Douthett testifie d further that he and Sam had conducted numerous real-world tracking searches, in cluding some cases involving tracking bicyclists. Deputy Douthett went on to describe the process used to present a bloodhound with a scent an d to track that scent.

[40] Deputy Douthett testified further that the FBI contacted him and asked him to come to Bloomington to conduct a tracki ng search in the Behrman case. An exhaustive description of the tracking s earch is not necessary here. It suffices for our purposes to note th at Deputy Douthett and Sam were taken to a spot on North Maple Grove Road ro ughly one-half mile southwest of where Behrman’s bike had been discovered. Sam tracked Behrman’s scent to the spot the bike had been found and continued tracking the scent northward briefly before losing the scent and doubling back to the starting poin t of the search. At that point, Deputy Douthett and Sam got into a vehicle and were driven southward along the path Sam had been following. They stopped and got out of the vehicle at an intersection a few hun dred yards away from Highway 37. Hollars’s residence is very close to this intersection. Sam was able to pick the scent back up at that po int and she followed it ac ross Highway 37 before turning south on Kinser Pike.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 32 of 67 [41] Myers argues that evidence of th e bloodhound tracking search was inadmissible, or at the very least subj ect to impeachment on the basis of its unreliability. In support of this argument, he cites a line of Indiana Supreme Court cases supporting the proposition th at bloodhound tracking evidence is too unreliable to be admissible. See Hill v. State , 531 N.E.2d 1382 (Ind. 1989); Brafford v. State , 516 N.E.2d 45 (Ind. 1987); Ruse v. State , 186 Ind. 237, 115 N.E. 778 (Ind. 1917). The State notes, howeve r, that all of these cases were decided prior to the adoption of the Indiana Rules of Evidence. In his reply brief, Myers appears to concede that the line of cases he cited in his appellant’s brief are no longer controlling. Instead, he argues that the admissio n of the bloodhound tracking evidence would now be eval uated under Indiana Evidence Rule 702(b), which provides that “[e]xpert scie ntific testimony is admissible only if the court is satisfied that the expert te stimony rests upon re liable scientific principles.” According to Myers, the application of Rule 702(b) would result in the exclusion of bloodhound tracking ev idence because “[a] dog’s accuracy relies upon too many variant and subjective factors to be considered reliable”. Reply Brief at 8. Myers also argues that ev en if bloodhound tracking evidence might be deemed admissible under the cu rrent rules of evidence, trial counsel were ineffective for failing to impeac h the evidence by establishing its unreliability.

[42] We need not address whether the bloodho und tracking evidence in this case was admissible or subject to impeachmen t. “[A]n objection to inadmissible evidence may be waived as part of reasonable trial strategy, which will not beCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 33 of 67 second-guessed by this court.” Nordstrom v. State , 627 N.E.2d 1380, 1385 (Ind. Ct. App. 1994), trans. denied . Trial counsel may also choose to forego opportunities to impeach ev idence when doing so serv es a reasonable strategic
purpose. See Kubsch v. State , 934 N.E.2d 1136 (concluding that counsel’s decision not to impeach a witness was a matter of trial strategy and did not amount to ineffective assistance).

[43] At the PCR hearing, Patrick Baker testif ied that he could not recall whether he considered objecting to the bloodhound tracking evidence. Likewise, he could not recall whether he considered consulti ng with an expert on bloodhounds or researched the admissibilit y of such evidence, althou gh he believed he or someone in his office had probably done some research on the issue. He noted on cross-examination that the bloodho und evidence put Behrman within a reasonable proximity of Holla rs’s house around the time of her disappearance.

[44] It is Myers’s burden to overcome the presumption th at there were strategic reasons for the decisions trial counsel made. If Myers cannot satisfy that burden, he cannot establish deficient perf ormance. Patrick Baker’s inability to recall at the time of the PCR hearin g whether he researched bloodhound evidence or considered objecti ng to its introduction at trial over six years earlier is insufficient to overcome the presumption in this case . This is so because we judge counsel’s performance “by the stan dard of objective reasonableness, not his subjective state of mind.” Woodson v. State , 961 N.E.2d 1035, 1041 (Ind. Ct. App. 2012) (citing Harrington v. Richter , 562 U.S. 86), trans. denied . “Although courts may not indulge ‘ post hoc rationalization’ for counsel’s decisionmakingCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 34 of 67 that contradicts the available evidence of counsel’s actions, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions.” Harrington v. Richter , 562 U.S. at 109 (internal citation omitted).

[45] Judging trial counsel’s performance by an objective standard of reasonableness, as we must, we conclude that there were valid strategic reasons for declining to object to or impeach the bloodhound trac king evidence irrespective of Patrick Baker’s inability to recall his thoughts on the subject. One of trial counsel’s tactics throughout trial was to cast suspicion on Hollars, and the bloodhound tracking evidence supported that stra tegy because it placed Behrman near Hollars’s residence. Ind eed, trial counsel relied on the bloodhound tracking evidence and its link to Hollars in both opening statements and closing arguments. We will not speculate on th e ultimate wisdom of trial counsel’s strategic decisions on this issue. Because Myers has not overcome the presumption that trial counsel acted comp etently in declining to object to or impeach the bloodhound tracking eviden ce, he has not established ineffective assistance in this regard.

E.

[46] Next, Myers argues that his trial counsel were ineffective for failing to impeach Betty Swaffard’s testimony. Swaffard, Myers’s maternal grandmother, testified to certain statements Myers made to her following Behrman’s disappearance. Specifically, Swaffard testified that on June 27, 2000, the date Detective Crussen interviewed Myers’s parents, Myers called Swaffard and asked toCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 35 of 67 borrow money. Swaffard told Myers that he would have to come to her house to pick up the money, and he said he could not come because there were road blocks up on Maple Grove Road, and he did not want to go out because he was a suspect in Behrman’s disappearance. Swaffard testified further that in November 2004, Myers called her and as ked her to look after his daughter because he needed some time alone to th ink. Swaffard asked what was on his mind, and Myers said, “Grand ma, if you just knew the things that I’ve got on my mind. . . . [I]f the auth orities knew it, I’d be in prison for the rest of my life.” Trial Transcript at 1833. Myers stated further that his father had known it and “took it to the grave with him.” Id. Later that evening, when Myers dropped his daughter off at Swaffard’s ho use, he had tears in his eyes and said, “Grandma, I wish I wasn’t a bad person . I wish I hadn’t done these bad things.” Id. at 1833-34. On cross-examination, trial counsel asked Swaffard only two questions, both of which were apparently intended to establish that Swaffard had developed an unusually clos e relationship with Detective Lang. First, counsel asked Swaffard whether she knew Detective Lang’s telephone number, and she responded affirmativ ely. Second, counsel asked what Detective Lang’s phone number was, an d Swaffard began to answer but was interrupted by an objection from the St ate. The trial court sustained the objection, and trial counsel declined to cross-examine Swaffard further.

[47] On appeal, Myers argues that trial coun sel were ineffective for failing to use recordings of telephone co nversations between Myers and Swaffard to impeach Swaffard’s testimony at trial. We no te that in May 2005, with Swaffard’sCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 36 of 67 permission, Detective Lang began recordin g Swaffard’s phone ca lls with Myers. Some of these recordings were of teleph one calls Myers made to Swaffard from jail, in which Myers told Swaffard that he had been interviewed concerning Behrman’s death and denied any involvem ent or knowledge thereof. At the PCR hearing, Patrick Baker testified that he had heard the recorded phone calls, but his strategy with respect to Swaffard was to get her off the witness stand as quickly as possible. He testified that Swaffard gave very damaging evidence, that her demeanor and presentation were credible, and that it was extremely challenging to explain to the jury wh y a grandmother would falsely implicate her grandson in a murder.

[48] On appeal, Myers argues that this was no t a reasonable trial strategy, and that trial counsel were required to make a greater effort to impeach Swaffard precisely because her testimony was damagi ng and appeared credible. This is the sort of second-guessing of trial strategy in which we will not engage on appeal. “It is well settled that the natu re and extent of cross-examination is a matter of strategy delegated to trial counsel.” Waldon v. State , 684 N.E.2d 206, 208 (Ind. Ct. App. 1997), trans. denied . Myers has not establ ished that a strategy of limiting the jury’s ex posure to Swaffard’s test imony and denying her the opportunity to elaborate further thereon fell outs ide the wide range of constitutionally comp etent assistance.

[49] In any event, Myers has not directed our attention to any particularly persuasive impeachment evidence contai ned within the telephone recordings. Although Myers denied any involvement in or knowle dge of what happened toCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 37 of 67 Berhman in the phone calls he made to Sw affard from the jail, he did so after being made aware that he was a susp ect in the case. Additionally, he acknowledged during the co nversations that he knew that telephone calls made from the jail are recorded . In light of these facts, Myers’s denials of involvement were unlikely to sway th e jury, and they do nothing to explain why Swaffard would falsely implicate My ers. Moreover, in order to impeach Swaffard with the recordings, trial coun sel would have had to make the jury aware that Myers’s own gr andmother had voluntarily agreed to allow Detective Lang to record her conversations with Myers. The damaging effect of such evidence would likely outweigh its minimal impeachment value.

[50] Myers also argues that couns el was ineffective for fail ing to object to what he calls “religious vouching” fo r Swaffard’s credibility. Appellant’s Brief at 43. Specifically, Swaffard was allowed to te stify, albeit briefly and without great detail, concerning her religious involvem ent, including her affiliation with a specific church, her studies at a Bible college, and religious writings she has authored. According, to Myers, this testimony “served no purpose other than to portray [Swaffard] as a God-f earing woman who wouldn’t lie.” Id. at 43. Myers argues that the erro r was compounded when the State made reference to Swaffard’s faith in its closing argument , stating that she came forward after “great prayer and . . . thought” and that “by the grace of God she came forward and told you the truth[.]” Trial Transcript at 1247, 2827.

[51] At trial, Myers’s counsel objected to th e State’s line of questioning regarding Swaffard’s religious involv ement on the basis of rele vance. The trial courtCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 38 of 67 overruled the objection and explained th at it would allow “some introductory questions just so the jury knows who the witness is.” Id. at 1813. On appeal, Myers argues that trial counsel’s object ion was insufficient because “he did not provide a specific rule.” Appellant’s Brief at 43. We note, however, that Myers has also failed to cite any specific rule of evidence in his appellant’s brief in support of this assertion that Swaffard ’s testimony amounted to impermissible “religious vouching.” Instead, he argu es that “[v]ouching testimony invades the province of the jury”, and he cites two cases, both of which address issues concerning adult witnesses vouching fo r the truthfulness of victims in child molesting cases. Id. The State, however, has dire cted our attention to Indiana Evidence Rule 610, which provides that “[e]vidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.”

[52] The testimony Myers argues amounted to impermissible religious vouching was part of general background information Swaffard was asked to give about her life. She testified that she had lived in her home for forty-five years, that she was homemaker, that her husband was de ceased, and that he r hobbies included reading, writing, and gardening. She te stified further that she had completed some studies at a Bible college and au thored a children’s Bible school curriculum. The State then asked Swa ffard whether she attended a specific church, and trial counsel objected to the li ne of questioning based on relevance. The trial court overruled the objection, an d Swaffard went on to testify that she had attended Maple Grove Christian Chur ch for nine years, that she wroteCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 39 of 67 poetry and ladies’ devotionals, and she gave more background about her children and family.

[53] We cannot conclude that Swaffard’s testimony concerning her religious involvement constitutes vouching, reli gious or otherwise. Although the relevance of Swaffard’s religious involv ement is certainly questionable (hence trial counsel’s objection on that basis) , her testimony contai ned no express or implied assertion that she was more or less likely to tell the truth due to her religious beliefs. Thus, Myers has not es tablished a reasonable probability that an objection on this basis wo uld have been sustained. See Passwater v. State , 989 N.E.2d 766 (Ind. 2013) (expla ining that to prevail on a claim of ineffectiveness based on failure to object, the defendant must establish a reasonable probability that the objection would have been sustained). Moreover, Myers has not established that he was prejudiced by Sw affard’s testimony in this regard. Swaffard’s testimony concerning her involvement in church and religious activities was short and not greatly de tailed. More importantly, Swaffard testified that Myers was her grandson and that she loved him and had been close with him since he was a small child. In light of the evidence concerning Swaffard’s relationship with Myers and th e absence of any motive to lie, we are unconvinced that testimony concerni ng her religious involvement had a significant impact on the jury’s assessment of her credibility.

[54] To the extent Myers argues that the prosecuting atto rney’s remarks in closing argument crossed the line into impermis sible religious vouching, we note that the State’s references to Sw affard’s religion were brie f and vague at best. TheCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 40 of 67 State’s use of the common phrase “by the grace of God” conveyed nothing about Swaffard’s religious beliefs, nor di d its statement that Swaffard was “the last of a dying breed. A generation of people where truth mattered more than anything else, where telling the truth wa s an oath that was taken seriously.” Trial Transcript at 2827, 2754-55. If anything , these statements suggested that Swaffard was more likely to tell the truth because of her age, not because her religious convictions compelled her to do so.

[55] The State’s remark that Swaffard came forward “with great pr ayer” is arguably a more direct reference to her religion , but when viewed in context, it is apparent that the statement did not imply that Swaffard was credible because of her religious beliefs. Id. at 2747. The statement was made as part of the following argument:
And stop for a moment to think how much doubt . . . how much reasonable doubt [Swaffard] had ov ercome before she came forward with what she knew. She knew what it would do to the family. You saw what Jodie, Sam, and Luke did. They circled the wagons. But she told you one thing, [Swaffard] did, didn’t she? That her conscience wouldn’t let her sleep unl ess she came forward. Think how hard it would be for any grandmot her to do. You know, as you get older you start thinking about your family legacy. You start thinking about what’s important in life and with . . . with many tears and with great . . . with great prayer and . . . and thought, [Swaffard] did come forward. This is a case about relationships.

Id. Thus, it is apparent that the State wa s arguing that it was very difficult for Swaffard to come forward due to th e impact her cooperation with the investigation would have on her familial relationships, but th at her conscienceCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 41 of 67 nevertheless compelled her to do so. In other words, the State argued that Swaffard was credible because she came forward with reservations and at great personal expense. The brief reference to prayer did nothing to imply that Swaffard was more credible becaus e of her religious beliefs.

[56] Moreover, Myers did not ques tion trial counsel at the PCR hearing with respect to his failure to object to these statem ents. Our Supreme Court has held that, because counsel is presumed to be compet ent, “an action or omission that is within the range of reason able attorney behavior can only support a claim of ineffective assistance if that presumption is overcome by specif ic evidence as to the performance of the particular lawyer.” Morgan v. State , 755 N.E.2d 1070, 1074 (Ind. 2001). Under the circumstance s presented here, tr ial counsel could have concluded that objecting to the State’s vague, passing references to Swaffard’s religious convictions would on ly draw more attention to them, and Myers has presented no evid ence to the contrary. See Smith v. State , 822 N.E.2d 193 (Ind. Ct. App. 2005) (noting that it is reasonable strategy for counsel not to object to certain evidence to avoid drawin g unfavorable attention to it). In any event, we are unconvinced that the comp lained-of statements had an impact on the jury’s verdict. For these reasons, Myers has es tablished neither deficient performance nor prejudice stemming from counsel’s failure to object to socalled religious vouching.

F.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 42 of 67 [57] Myers next argues that trial counsel were ineffective for failing to adequately impeach Carly Goodman’s testimony. Goodman testified that one night in March 2000, Myers, her then-boyfriend, took her for a long car ride through Gosport to a wooded area, where he park ed in a “clearance” surrounded by a wooded area. Trial Transcript at 1899. Goodman test ified that after Myers stopped the car, the couple argued and that she was afraid and wanted to go home. Goodman testified further that in February of 2006, she went for a drive with Detective Lang to id entify places that Myers had taken her during their relationship. She recognized one pl ace as the wooded area where she and Myers had argued in Marc h 2000. This was the same area where Behrman’s remains were discovered in 2003. Myer s’s trial counsel conducted a relatively short cross-examination, in which he as ked a number of questions designed to create doubt as to the whether the site was sufficiently distinctive-looking for Goodman to reliably differentiate it from other nearby wooded areas. On appeal, Myers argues that trial counse l should have impeached Goodman with her prior, allegedly inconsistent statements about the site.

[58] At the PCR hearing, Patrick Baker testif ied that his strategy with respect to Goodman’s cross-examination was simila r to his strategy with Swaffard—he sought to get Goodman off th e witness stand as quickly as possible. He testified further that Goodman “had a lot of inform ation, 404(b) eviden ce, that regarded domestic battery situations with [Myers]. Regarded her being held against her will in a trailer, I think, for three or four days without any clothes. I think protective orders that she had filed against [Myers.]” PCR Transcript at 581. HeCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 43 of 67 explained that this information had been ruled inadmissible, but he still had concerns about Goodman bringing it up . Moreover, when asked whether he had planned to impeach Goodman with pr ior inconsistent statements, counsel responded that he did not recall specific ally, but that any strategies he had devised changed during Goodman’s testim ony because she displayed a palpable demeanor of fear toward Myers.

[59] Myers dismisses trial counsel’s explanatio n of his strategy as unreasonable. He asserts that counsel could have cross- examined Goodman concerning her prior statements made to Detective Lang at th e time she identified the site without eliciting or opening the door to prej udicial and inadmissible testimony. Further, Myers argues that fearful witnes ses are “a reality of criminal defense for which counsel should be prepared.” 7 Appellant’s Brief at 45. We will not engage in this sort of seco nd-guessing of trial coun sel’s strategic decisions concerning the nature and scope of cross-examination. Myers has not established that his trial counsel’s strat egy was unreasonable; to the contrary, it was quite reasonable for trial counsel to minimize the jury’s exposure to Goodman’s fearful demeanor and avoid any inadvertent mention of highly prejudicial and inadmissible evidence by limiting the scope and duration of his cross-examination, while si multaneously eliciting testimony casting doubt on the reliability of her identification of the area.

7 Myers does not, however, make any attempt to explain what such “preparation” would entail or propose an alternative strategy for dealing with such witnesses. It appears to us that one obvious strategy could be to limit cross-examination of such witnesses, as trial counsel did in this case.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 44 of 67 [60] Moreover, Myers has again fail ed to establish the requis ite prejudice. Much of the impeachment evidence Myers argues should have been used during Goodman’s cross-examination was ex plored through Detective Lang’s testimony. For example, Myers argu es that trial counsel should have impeached Goodman with Detective Lang ’s testimony during the grand jury proceedings that Goodman recognized the area due to a humming sound the tires made as they drove across a meta l bridge. The bridge, however, was not installed until 2001, well after Goodman’s March 2000 car ride with Myers.

[61] Contrary to Myers’s assertion on appeal , Detective Lang’s grand jury testimony did not establish that Goodman recogn ized the area due to the sound of the tires on the bridge. Although Detect ive Lang mentioned the humming sound the tires made, he did not state that the sound is what triggered Goodman’s memory. Instead, Detective Lang de scribed the bridge and the humming sound, and said it was at that poin t that Goodman stopped him midsentence and said that that the area looked more familiar to her than any of the other places they had been. Detective Lang later clarified that Goodman “did not indicate on the bridge. That’s just wh ere she interrupted my sentence and said, this place looks more familiar. She di dn’t say the bridge was more familiar, I remember that sound. She just said th is place looks more familiar than any place we’ve been up to that point.” Grand Jury Transcript at 6104. Indeed, in her own grand jury testimony, Goodman sp ecifically stated that it was not the bridge that caused th e area to be recognizable to he r. Instead, she stated that she recognized a nearby creek, woods, stee p hills with rocks on them, and anCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 45 of 67 area she described as a “cutoff”, which was not a road but provided enough clearance to allow a person to drive a short distance into the woods. Id. at 4080.

[62] Moreover, trial counsel did, in fact, rais e the issue of Goodman’s recognition of the bridge with Detective Lang. Specific ally, trial counsel elicited testimony from Detective Lang concerning the da te the bridge was constructed, and he asked Detective Lang whether it was true that Goodman recogn ized the bridge. Detective Lang responded that Goodman did not recognize the bridge, and instead recognized the area. Detective La ng’s trial testimony is supported by both his and Goodman’s grand jury testimony. For these reasons, it is apparent that any further attempt to impeach Go odman or Lang using their grand jury testimony on this point would have been unsuccessful. 8

[63] Myers also makes much of the fact that Goodman told Detective Lang that the wooded area where Behrman’s remains were found was similar to, or looked like, the place Myers took her in March 2000 instead of positively identifying the area. At trial, however, when shown a picture of the area in which Behrman’s remains were discovered, sh e responded “[t]hat’s where he took

8 Myers also argues that trial should have used De tective Lang’s report to impeach his testimony that Goodman recognized a clearing in the woods. Accord ing to Myers, “[Detectiv e] Lang did not document Goodman’s recognition of a cut-away in his repo rt prepared contemporane ous with the trip.” Appellant’s Brief at 11. Myers has not, however, directed our attention to a copy of Detective Lang’s report appearing in the record. We will not scour the extremely voluminous reco rd in this case in sear ch of support for Myers’s contentions on appeal. Because Myers has not adequately supported this claim with ci tation to the record, it is waived. See Smith v. State , 822 N.E.2d 193 (Ind. Ct. App. 2005). Waiver notwithstanding, at trial, Detective Lang and Goodman both testified that Good man recognized the clearing in the woods. It is unlikely that the possibility that Detective Lang omitte d this fact in his report would have significantly undermined their testimonies in this regard.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 46 of 67 me.” Trial Transcript at 1900. Our review of transc ript reveals that trial counsel did a more than adequate job of calli ng into question the reliability of Goodman’s identification of the area. On cross-examination, trial counsel elicited the following testimony:
Q. . . . How do you differentiate that picture from any other picture that’d be taken in the woods? A. Because of the way the clearance is. Q. How do you rec . . . differenti ate that clearance from any other clearance? A. It’s . . . it’s just what looks familiar to me. Q. But you don’t know . . . that could be anywhere, correct? A. Yes.

Id. at 1906. Moreover, Detective Lang test ified that Goodman told him that the area “look[ed] more familiar to [h er] that anyplace we’ve been.” Id. at 2413. Because the jury was pres ented with testimony that Goodman told Detective Lang that the area looked familiar instead of positively iden tifying the area, as well as with Goodman’s own testimony that the area just “look[ed] familiar”, id. , counsel did not perform deficiently by failing to use Detective Lang’s grand jury testimony to establish those facts.

[64] Myers also argues that his trial counsel were ineffective for failing to object to Goodman’s description of Myers’s beha vior during the March 2000 car trip, which he calls “prejudicial 404(b) testimony”. Appellant’s Brief at 46. Myers does not, however, cite the applicable language of Indiana Evidence Rule 404(b) or make any attempt to apply it. Accordingly, this argument is waived for lack of cogency. See Davis v. State , 835 N.E.2d 1102, 1113 (Ind. Ct. App.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 47 of 67 2005) (explaining that “[a] party waiv es an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record”), trans. denied.

[65] To the extent Myers has made a coherent argument on this point, it essentially boils down to an assertion that, in li ght of other testimony suggesting that Behrman may have been ra ped, Goodman’s testimony left the jury with the impression that Myers had raped her during the March 2000 car trip. In support of this argument, Myers directs our attention to Goodman’s testimony that during the trip, she di d not kiss Myers, she want ed to go home, and that she was afraid, as well as her testimon y that Myers refused to take her home, and that they both got out of the car and stayed at the locati on for thirty to forty-five minutes before Myers finally took her home. Myers’s argument on this point is unconvincing. Goodman to ld the jury what happened once they reached the clearing in the woods—she an d Myers argued and Myers refused to take her home, which scared her. Nothing about Goodman’s testimony implied that she had been raped.

[66] In any event, it is apparent that the testimony was admitted to show that Myers was familiar with the area in which Behr man’s remains were discovered and to explain why Goodman was sti ll able to remember the lo cation so vividly several years later, and not to establish that Myers had a propensity to commit murder or any other crime. Thus, the testimon y did not violate Evidence Rule 404(b), and Myers points to no da nger of unfair prejudice aside from his unpersuasive argument that the testimony left the ju ry with the impression that GoodmanCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 48 of 67 had been raped. See Embry v. State , 923 N.E.2d 1, 9 (Ind. Ct. App. 2010) (explaining that “[i]n assessing the admiss ibility of 404(b) evidence a trial court must (1) determine that the evidence of ot her crimes, wrongs, or acts is relevant to a matter at issue other than the defe ndant’s propensity to commit the charged act and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Indian a Evidence Rule 403”), trans. denied . Thus, Myers has not established a reasonable probabilit y that an objection on the basis of Evidence Rule 404(b) would have been sustained, and he is consequently unable to show that counsel performed defi ciently by failing to object on that basis.

G.

[67] Next, Myers argues that trial counsel we re ineffective for failing to object to testimony suggesting that Behrman had b een raped. Specifically, forensic pathologist Dr. Stephen Radentz test ified that the condition in which Berhman’s remains were discovered was consistent with a classic rape-homicide scenario. Additionally, Dr. Radentz responded affirmatively to a jury question asking whether he believed Berhman had been raped. During follow-up crossexamination by Myers’s trial counsel, Dr. Radentz admitted that there was no physical evidence that a rape had occu rred. When questioned further by the State, Dr. Radentz testifie d that, based on his training and experience, he nevertheless believed that Berhman had been raped because the location and condition of the remains were consiste nt with a rape-homicide. The State referenced Dr. Radentz’s rape test imony in closing arguments.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 49 of 67 [68] On direct appeal, Myers argued that Dr. Radentz’s references to rape amounted to fundamental error. Another panel of this court concluded that the admission of Dr. Radentz’s rape testimony violated Evidence Rule 403 because Myers was not charged with rape and there was no physical evidence to support the rape determination. Myers v. State , 887 N.E.2d 170. The cour t went on, however, to conclude that the admission of the ev idence did not amount to fundamental

error. Id. The court r easoned as follows:

We conclude that any error in the admission of Dr. Radentz’s rape testimony did not substantially influe nce the outcome of the trial. The question of rape was peripheral to the murder charge and received relatively minimal attention at trial. To the extent the possibility of rape was at issue, defense counsel thoroughly cross-examined Dr. Radentz, eliciting his testimony that there was no physical evidence that Behrman had been raped and that the only basis upon which he opined that a rape had occurred was his training and experience with respect to circumstances surroundin g the general disposal of human remains. Furthermore, the trial cour t excluded all evidence tending to link Myers to inappropriate sexual conduct. The references to rape, therefore, did nothing to implicate Myers as the perpetrator of this charged crime, which was the central issue at trial.

Id. at 187.

[69] Myers is correct that this court’s conclusion on direct appeal that the admission of Dr. Radentz’s rape test imony did not amount to fundamental error does not necessarily preclude a finding that couns el’s failure to objec t thereto amounted to ineffective assistance. See Benefield v. State , 945 N.E.2d 791 (Ind. Ct. App. 2011). To establish fundamental error, a defendant must show that the alleged error was so prejudicial as to make a fair trial impossible. Ryan v. State , 9Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 50 of 67 N.E.3d 663 (Ind. 2014). To satisfy the prejudice element of an ineffective assistance of counsel claim, on the othe r hand, a defendant must establish that there is a reasonable proba bility that the result of the proceeding would have been different but for counse l’s unprofessional errors. Massey v. State , 955 N.E.2d 247 (Ind. Ct. App. 2011). Thus , this court has noted “that there is a subtle distinction between the fundamen tal error and ineffective assistance prejudice standards.” Benefield v. State , 945 N.E.2d at 803. Although the fundamental error standard “presents a higher bar”, “the two standards may frequently lead to the same result”. Id. at 804, 803.

[70] This is one such case. For the same reasons this court on direct appeal concluded no fundamental error occurred, we also conclude that Myers has not established prejudice sufficient to warrant a finding of ineffective assistance of counsel. We agree with the panel’s conclusion that Dr. Radentz’s rape testimony did not substantially influence th e outcome of the trial. Accordingly, Myers has not established a reasonable pr obability that the outcome of the trial would have been different but for co unsel’s failure to object.

H.

[71] Next, Myers argues that his trial counsel was ineffective for failing to object to what he calls irrelevant and highly pr ejudicial gun evidence. Specifically, Myers points to the testimony of Billy Dodd, Myers’s neighbor at the time of Behrman’s disappearance, that a number of rifles and shotguns were kept in a barn near Myers’s trailer. Additionally, Debbie Bell, My ers’s aunt, testified thatCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 51 of 67 Myers sold her husband a shotgun at My ers’s father’s funeral in December 2000, several months after Behrman’s disappearance. Detective Lang testified that he retrieved that gun from Bell. Al though the record rev eals that this gun, as well as several others that Myers sold or distributed to relatives, had been stolen from the barn near Myers’s traile r, the jury was not made aware of that fact and evidence of Myers’ s resulting conviction for receiving stolen property was excluded.

[72] “Evidence that the defendant had access to a weapon of the type used in the crime is relevant to a matter at issue ot her than the defendant’s propensity to commit the charged act.” Rogers v. State , 897 N.E.2d 955, 960 (Ind. Ct. App. 2008), trans. denied . On the other hand, “[e]vi dence of weapons possessed by a defendant but not used in the crime for which the defe ndant is charged should generally not be introduced because the evidence is irrelevant and highly prejudicial.” Oldham v. State , 779 N.E.2d 1162, 1174 (Ind. Ct. App. 2002). On appeal, Myers argues that trial counsel should have objected to all evidence relating to the guns from the barn on the basis of relevanc e because Detective Lang’s grand jury testimony establishe d that they were not stolen until November 2000, well after Behrman’s di sappearance, and therefore could not have been the murder weapon. 9 But Detective Lang’s testimony was hardly

9 Citing the same portion of the gran d jury transcript, Myers also claims that the State acknowledged during the grand jury proceedings that the murder weapon was not among the guns taken from the barn. The transcript contains no such concession, and even if it did, Myers has not directed our attention to any authority or made any argument remotely supportin g the proposition that the State would be somehow bound by a statement it made in the midst of an ongoing grand jury investigation.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 52 of 67 conclusive on this point. Detective Lang testified as follows before the grand jury:

I talked to Mr. Maher, [the owne r of the barn], the burglary he reported it November 2000, which would have been after the death obviously of [Behrman]. I asked hi m if it could be possible that he would not have known between May and November when he reported it that any of those weapons were missi ng? In his opinion, he said no. I don’t know. You know I mean he . . . if they were all missing, I’m sure he’s correct. If he took one, you know, it could have been out and he would not [have] noticed it in my opinion. But, he said that the air conditioner was removed and that was what tipped him off that something was wrong and then he foun d the guns were gone, so. He stated that he made trips to the barn on several occasions enough between May and November that he would have known somewhere in between that time that they wo uld have been gone.
Grand Jury Transcript at 5483-84.

[73] The post-conviction court found testim ony concerning the guns relevant because they (or at least one of them) co uld have been taken during a previous, undiscovered entry. We agree. Unlike in Oldham v. State , here there was no conclusive scientific proof that the weapon s at issue were not us ed in the crime. The fact that the owner of the barn beli eved that he would have noticed if the guns were stolen prior to Be hrman’s death goes to the we ight to be attributed to the evidence, not its admissibility. 10 Thus, Myers has not established that the gun testimony was irrelevant.

10 The owner of the barn did not testify at the PCR hearing.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 53 of 67 [74] Myers has also failed to establish prejudice arising from the admission of the gun evidence in this case. There was other evidence presented at trial to establish that Myers had acce ss to shotguns like the on e used to kill Behrman. Samuel Myers, Myers’s brother, test ified that he owned a twelve-gauge shotgun, which he kept at his parents’ ho use. Samuel testified further that he noticed that his shotgun was missing ar ound August of 2000 and that he was never able to locate the weapon. Myer s’s other brother, Lucas Myers, also testified that Myers had access to shotguns at their parents’ house, and Richard Swinney, Myers’s cousin by marriage, te stified that Myers told him that he hunted with a twelve-gauge shotgun. Acco rdingly, additional evidence to the effect that Myers had access to and posses sion of such weapons was unlikely to have had a significant impact on the outc ome of the trial. Moreover, evidence was presented that many people in th e community possessed similar weapons for hunting purposes and that Myers was himself a hunter. Thus, Myers’s possession of such weapons, standing alone, was unli kely to be viewed by the jury as indicative of dangerousness or criminal activity. For all of these reasons, Myers has not established that his trial counsel were ineffective for failing to object to testimony that guns were stored in a barn near Myers’s trailer and that Myers sold a shotgun to his uncle.

I.

[75] Myers next argues that trial counsel were ineffective for failing to object to the testimony of jailhouse informant John Roe ll. As we have already noted, “in order to prevail on a claim of ineffective assistance due to the failure to object,Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 54 of 67 the defendant must show a reasonable pr obability that the objection would have been sustained if made.” Passwater v. State , 989 N.E.2d at 773. Myers has not satisfied this burden.

[76] Roell testified at trial th at he had been Myers’s ce llmate in the Monroe County Jail in May 2005. He testified further th at Myers told him he was waiting to be questioned by the Indiana State Police concerning Behrman’s bicycle. According to Roell, Myers appeared nervous and angry, and at one point stated “if she wouldn’t have said anything, none of this probably would have happened.” Trial Transcript at 2270-71. Roell understood Myers to be referring to Behrman when he made th is statement, and Roell te stified further that Myers referred to Behrman as a bitch.

[77] Myers contends that counsel should have objected to Roell’s testimony pursuant to Indiana Evidence Rule 403. This rule pr ovides, in pertinent part, that relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of . . . unfair pr ejudice[.]” Ind. Evid. R. 403. “All evidence that is relevant to a criminal pr osecution is inherently prejudicial; thus proper inquiry under Evidence Rule 403 boils down to a balance of the probative value of the proffered evidence against the likely unfair prejudicial impact of that evidence.” Fuentes v. State , 10 N.E.3d 68, 73 (Ind. Ct. App. 2014), trans. denied . “When determining the likely unfair prejudicial impact, courts will look for the dan gers that the jury will (1) substantially overestimate the value of the evidence or (2) that the evidence will arou se or inflame the passions or sympathies of the jury.” Duvall v. State , 978 N.E.2d 417, 428 (Ind.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 55 of 67 Ct. App. 2012) (quoting Carter v. State , 766 N.E.2d 377, 382 (Ind. 2002)), trans. denied

.

[78] The crux of Myers’s argument is that the probative value of Roell’s testimony was low because he was not a credible wi tness due to inconsistencies among his initial statement to police, his deposition testimony, and his trial testimony. But it was for the trier of fact, not the tr ial court, to judge Roell’s credibility. Ultimately, Myers’s argument in this regard goes to the weight to be afforded to Roell’s testimony, not its admissibility. See Embrey v. State , 989 N.E.2d 1260, 1268 (Ind. Ct. App. 2013) (“[i]nconsiste ncies in witness testimony go to the weight and credibility of the testimony, the resolution of wh ich is within the province of the trier of fact” (internal qu otation omitted)). Roell’s testimony, if credited by the trier of fact, was high ly probative of Myers’s guilt.

[79] Myers also argues that the admission of Roell’s testimony posed a significant danger of unfair prejudice because, in order to fully impeach Roell, Myers would have had to use Roell’s prior statement to police, which contained information more damaging to Myers’s defense than Roell’ s trial testimony. 11 “Unfair prejudice addresses the way in whic h the jury is expected to respond to the evidence; it looks to the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest de cision on an improper

11 In support of this assertion, Myers cites only the deposition of Detective Cody Forston of the Bloomington Police Department. In the deposition, Detective Fo rston recounted Roell’s statement to him, noting specifically that Roell told him that Myers had stated that Behrman had been sexua lly assaulted and that “if the dumb bitch would have done what [he] ha d told her, she wouldn’t be dead now.” PCR Exhibit 239, p. 14. Roell did not make these statements in his deposition or trial testimony.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 56 of 67 basis....” Ingram v. State , 715 N.E.2d 405, 407 (Ind . 1999) (internal quotation marks omitted).

[80] Nothing in Roell’s testimony was likely to prompt the jury to convict Myers on an improper basis. Myers has cited no relevant authority supporting the proposition that evidence may be cons idered unfairly prejudicial because it forces counsel make difficult strat egic decisions with respect to its impeachment. We decline to develop th is argument on his behalf. Because Myers has not satisfied his burden of esta blishing that an objection to Roell’s testimony on the basis of Evidence Rule 403 would have been sustained, he has consequently failed to es tablish deficient performanc e and resulting prejudice.

J.

[81] Next, Myers argues that his trial counsel were ineffective for failing to present all available evidence tend ing to establish the guilt of Owings, Sowders-Evans, and Clouse, and for failing to investigat e and discover additional evidence to that effect. This argument is nothing more than a re quest to substitute Myers’s PCR counsel’s strategic judgment, inform ed by hindsight, for that of Myers’s trial counsel, which we will not do.

[82] In 2002, Owings confessed to the police that she, Sowders-Evans, and Clouse had killed Behrman. In the story Owi ngs gave police, she and Sowders-Evans were riding around with Clouse in his pickup truck and using drugs when Clouse struck a girl riding a bike on Harrell Road. Clouse stopped and loaded the injured and incapacitated girl into th e back of the truck and wrapped her inCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 57 of 67 plastic secured with bungee cords before placing the bi cycle on top of her. Owings went on to state that Clouse th en drove them all to Salt Creek, where the three of them took turns stabbing the girl in the chest before Clouse and Sowders-Evans pushed the body into the water. Ne ither Sowders-Evans nor Clouse ever confessed to the police, an d Owings recanted he r confession after Behrman’s remains were discovered in Morgan County.

[83] The State called Owings as a witness at Myers’s trial. Owings testified that when she was questioned by Detective Lang in April 2003, she denied any knowledge of Behrman’s disappearance. She testified further that she had previously lied about her involvement because she was facing a potential eightysix-year sentence for various unrelated felonies, and her attorney had urged her to come forward with anything she knew about the case in an attempt to curry favor with the prosecution. Owings te stified that she had named Clouse and Sowders-Evans because “[f]ro m the very first time I wa s questioned, those were the two names that I was suppo sedly to be with [sic] or around at the time of the said incident. They thought that all three of us were together.” Trial Transcript at 2094. She also testified that pa rts of her testimon y were based on places she had been with Sowders-Evans in the past. Owings testified further that she had told police th at the body was wrapped in plastic to explain why she was unable to identify the type of clot hing Behrman had been wearing and that she said they had disposed of the body in Salt Creek “[b]ecause there’s so much stuff in there . . . I figured . . .they couldn ’t even dive in it . . . . I knew they wouldn’t find her[.]” Id. at 2098. Owings stated that she recanted herCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 58 of 67 confession after Behrman’s remains were discovered be cause she believed that scientific evidence would exclude her.

[84] Additionally, the State introduced into evidence a letter Owings received from her attorney prior to her confession. In the letter, Owings’s attorney painted an exceptionally dire picture of Owings’s pr ospects. Specifically, he wrote that “we might be talking about you being locked up until just about everyone you know has died of old age.” PCR Exhibit 301. Her attorney went on to write that he had heard that Owings might kn ow something about the Behrman case, and told her “[f]or the sake of your chil dren, your family, and your own life, if there is anything you can tell th ese people the time is NOW.” Id. He added that he had gotten “the distinct impr ession you might not be punished for anything to do with the Behrman case , and might get co nsiderably better treatment in these other matters, if you can help solve this.” Id. He also wrote that Sowders-Evans, who wa s apparently also incarcer ated, was trying to get out of jail, and that if Sowders-Evans ta lked first, Owings would be “sunk.” Id

.

[85] Myers argues that trial counsel were in effective for failing to present certain testimony and witnesses supporting the theory that Owings, Sowders-Evans, and Clouse murdered Behrman. Trial co unsel Hugh Baker, however, testified that the defense team made a strategi c decision not to pursue Owings’s confession as its primary theo ry of defense. Specifically , he testified as follows:
. . . [W]e felt that trying to present to a jury and convince a jury what the Federal Bureau of Investigations, the Bloomington Police Department, and the Indiana State Po lice had concluded was false was not a good strategy, that is the Owings’ confession. She’d recantedCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 59 of 67 this confession. And they hadn’t found Jill Behrman in the . . . in Salt Creek. Rather, she was found . . . her remains were found in Morgan County and she . . . hadn’t died from drowning but she’d died from 99.9 percent certainty of being shot.
PCR Transcript at 840. For these reasons, a decision not to pursue the Owings theory would clearly reflec t a reasonable strategic ju dgment. Myers, however, asserts that trial counsel did, in fact, pu rsue the Owings theory at trial, and it was therefore deficient performance not to present more eviden ce to support it.

[86] The record reveals that trial counsel purs ued the Owings theory to some extent. Hugh Baker elicited testimony from Owin gs on cross-examination that she had discussed Behrman’s disappearance wi th several acquaintances and made incriminating statements to at least one of them. He also elicited testimony from Owings concerning the substance of her confession to police, and the fact that she had first been interviewed in co nnection with the Behrman case in June of 2000. Trial counsel also touched on the Owings theory with other witnesses throughout trial. Trial counsel elicited testimony from Dr. Radentz that not all of Behrman’s bones were re covered, and that it was possible (though unlikely) for her to have been stabbed without l eaving marks on her skeletal remains. Trial counsel also elicited testimony fr om Detective Lang and FBI Agent Gary Dunn that the FBI had drained part of Salt Creek looking for Behrman’s remains, a task which took several weeks. A search of the drained creek yielded a retractable knife, a bungee cord, and two pieces of plastic sheeting, which were consistent with items Owings mentio ned in her confession. Trial counsel also elicited testimony from Agent Dunn that he had received a tip that theCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 60 of 67 body had been moved and presented evid ence that Papakhian had reported seeing Behrman on Harrell Road on th e morning of her disappearance. In closing arguments, Patrick Baker told th e jury that there were two theories leading away from Myers’s guilt and towa rd that of others—the Owings theory and the Hollars theory.

[87] Essentially, Myers argues that trial co unsel was obligated to take an all-ornothing approach to the Owi ngs theory—either forego it entirely or present all evidence supporting it. We are unpersuaded by this argu ment. It is noteworthy that it was the State who first informed the jury of Owings and her recanted confession in its opening statement. The State did so in an effort to explain the delay in Myers’s development as the pr imary suspect, and presumably to get ahead of any attempt by the defense to cast suspicion on Owings and her alleged accomplices. Likewise, it was the State who called Owings to testify at trial. Under these circumstances, tr ial counsel did not act unreasonably by making a strategic decision to attempt to present just enough evidence to keep the possibility of Owings’s involvement al ive in the minds of the jurors, without making the Owings theory the crux of Myer s’s defense. Indeed, it appears to us that trial counsel’s decision to pursue th e Owings theory to only a limited extent was actually quite shrewd because it pr evented the jury from being exposed to all of the many conflicting versions of the story Owings, Sowders-Evans, and Clouse allegedly told. 12 This information might have resulted not only in the

12 Versions of the story were told in which Behrman was struck by a pickup truck, a car, and an SUV. Clouse allegedly told a cellmate that Behrman’s body was wrappe d in black plastic, while Owings had told the police the plastic was off-white. Some versions of the story va ried wildly from Owings’s confession to police. ForCourt of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 61 of 67 elimination in the jurors’ minds of the possibility th at Owings’s confession was true, but also in trial counsel’s loss of credibility with the jury. As the State argues in its brief, “the best counsel could hope for was to keep Owings on the delicate, razor-thin edge of jurors’ credib ility assessments. That strategy would have been ruined if counsel had pursue d the over-zealous course of action advocated by Myers in this proceeding.” Appellee’s Brief at 50. Accordingly, Myers has not established that trial co unsel performed deficiently in this regard. 13

[88] We also conclude that Myers was not prejudiced by trial counsel’s decision not to present additional evid ence supporting the Owings theory. Myers makes no argument that counsel failed to pres ent any physical ev idence—rather, he claims that counsel should have presen ted testimony concerning incriminating statements Owings, Clouse , and Sowders-Evan s made to others, as well as testimony corroborating parts of Owing s’s confession and evidence that Sowders-Evans fled the stat e during the investigation. 14 But the jury was aware

example, both Owings and Sowders-Evans allegedly told others that Behrman’s body had been dismembered, and more than one version of the story was told in which Behrman was kept in the trunk of a car for days before being killed. Additionally, Sowd ers-Evans and Owings both allegedly told stories of killing Behrman that involved a completely different cast of characters than that featured in Owings’s confession to the police. Owings allegedly gave one account of Behrman’s abduction and murder that included a brutal rape.
13 To the extent Myers argues that trial counsel fail ed to investigate and discover additional evidence supporting the Owings theory, we conclude that the limi tations on the investigation were the result of trial counsel’s reasonable strategic decision to limit reliance on the Owings theory. See Strickland v. Washington , 466 U.S. 668.

14 Myers also argues that trial counsel should have presented evidence that Owings, Clouse, and SowdersEvans gave false or shaky alibis. We note that Myers has not directed our attention to any evidence that Sowders-Evans ever provided an alibi. Moreover, Myer s has not directed our attention to any portion of the record indicating that the jury was presented with eviden ce that any of the three had ever provided an alibi. Thus, there was no need for counsel to impeach those alleged alibis.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 62 of 67 of the most powerful evid ence against Owings—her own confession to police. The jury was also aware that prior to the discovery of Behrman’s remains, police put enough stock into Owings’s conf ession to go to the extreme effort of draining part of Salt Creek, and that so me corroborating phys ical evidence was discovered as a result. Additionally, trial counsel presented evidence that Papakhian had seen Behrman on Ha rrell Road on the date of her disappearance. Moreover, much of the testimony Myers argues trial counsel should have introduced migh t have been inadmissible, 15 and much of the evidence Myers argu es corroborated Owings’s co nfession was shaky and could easily be explained away by Owings’s testimony that she based parts of her confession on things th at had actually happened. 16

[89] In any event, even if trial counsel had presented a parade of credible witnesses to testify that Owings, Clouse, and/or Sowders-Evans had confessed to hitting Behrman with a car, wrapping her in pl astic, stabbing her in the chest, and dumping her body in Salt Creek, the fact remains that the conf ession simply did

15 There are obvious hearsay problems with much of this evidence. Myers has made no attempt to establish that the statements at issue fall within an established exception to the hearsay rule, and we decline to develop this argument on his behalf.
16 In her confession, Owings stated that the night before Behrman’s abduction, she and Sowders-Evans walked to a house at the corner of Rockport and That Road and asked to use the telephone. Alice O’Mullane lives at that corner, and she provided an affi davit stating that she remembered two girls coming to her home after midnight an d asking to use the phone “[s]ome time in 2002”. PCR Exhibit 134. Owings also testified that Clouse ran a Jeep off Lampkins Ridge Roa d while en route to Salt Creek after hitting Behrman with the truck. DL Poer testified at the PCR hearing that in 2000, she lived off of Lampkins Ridge Road and drove a Jeep. Poer recalled almost being run off the road by a red truck in May 2000, but she gave conflicting statements as to the precise date in May. Owings late r told Detective Lang that she had made up this portion of the story because she was familiar with the road an d knew that people are often run off the road there. Poer also testified that the stretch of road was very da ngerous. Given these witnesses’ uncertainty concerning the dates of these events, as well as Owings’s testimony that she based parts of her story on things that actually happened, we cannot conclude that this eviden ce would have had a significant impact on the jury.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 63 of 67 not mesh with the physic al evidence. Behrman’s remains were found in a remote, wooded area, not in Salt Creek. There was no evidence that Behrman had been stabbed or struck by a car, bu t there was clear evidence that she had been shot in the head with a shotgun at the location where her remains were discovered. Although trial counsel elic ited testimony from Agent Dunn that he had received a tip that the body had been moved, evidence was presented that the visibility in Salt Creek was extremel y poor, and even the FBI was forced to go to the extreme measure of draining the creek in order to search it. Convincing the jury that Owings, her a lleged accomplices, or their associates could have managed to remove the bo dy from the creek would have been challenging, to say the least. Given the numerous, obvious weaknesses of the Owings theory, we cannot conc lude that the decision no t to pursue the theory to the extent Myers now advocates re sulted in prejudice to Myers. Consequently, his claim of in effective assistance of coun sel on this basis fails.

K.

[90] Finally, Myers claims that the cumulati ve effect of trial counsel’s errors amounted to ineffective assistance enti tling him to a new trial. We have reviewed each of Myers’s claims of error in detail and concluded that none of them amount to ineffective assistance of counsel. Indeed, most of Myers’s claims of ineffective assistance are no thing more than qu arrels with trial counsel’s reasonable strategic decisions. “Alleged ‘[t]rial irregularities which standing alone do not amount to error do not gain the stature of reversible error when taken together.’” Kubsch v. State , 934 N.E.2d at 1154 (quoting Reaves v.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 64 of 67 State , 586 N.E.2d 847, 858 (Ind. 1992)) (alterat ion in original). Accordingly, we are unpersuaded by Myers’s cu mulative error argument.

2.

[91] Next, Myers argues that the State violat ed his due process rights by failing to disclose all exculpatory eviden ce to the defense. In Brady v. Maryland , the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment , irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). In order to prevail on a Brady claim, the defendant must establish: “(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence wa s material to an issue at trial.” Stephenson
v. State , 864 N.E.2d 1022, 1056-57 (Ind. 2007) (quoting Conner v. State , 711 N.E.2d 1238, 1245-46 (Ind. 2000)). Under Brady , evidence is considered material if the defendant establishes a r easonable probability that the result of the proceeding would have been different had the State disclosed the evidence. Stephenson v. State , 864 N.E.2d 1022. The State will not be found to have suppressed material information if su ch information was available to the defendant through the exercise of reasonable diligence. Id.

[92] Myers concedes that he canno t identify even one specific piece of evidence that the State suppressed. Instead, he assert s that in the course of investigating Myers’s post-conviction claims, post-con viction counsel received over 8,000Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 65 of 67 pages of documents directly from the FBI and the Bloomington Police Department, and the State did not document transferring any of these materials to the defense prior to trial in its di scovery notices. At the PCR hearing, however, evidence was presented that trial counsel received additional discovery that was not documented by the State. Patrick Baker testified that discovery was “fluid” and that the St ate was not always meticulous in documenting what materials it had provided. PCR Transcript at 525. Chief Deputy Prosecutor Robert Cline stated th at prior to trial, he provided trial counsel with a CD containing 3,000 pages of FBI reports, and possibly other kinds of reports, without documenting th e transfer. Additionally, Patrick Baker testified that he reviewed boxes of in vestigative reports from the FBI, the Indiana State Police, the Bloomington Police Department, and the Indiana University Police Department at the Putnamville State Police Post. 17

[93] We agree with the post-conviction cour t’s conclusion that based on the evidence presented at the PCR hearing, it is unclear whether trial counsel was provided with or had access to all of the relevant investigative reports. Consequently, Myers has not satisfied his burden of establishi ng that the State suppressed such evidence. Moreover, even if we assume the State failed to disclose some evidence, without knowin g what that evidence was, we cannot

17 Myers makes much of the fact that Patrick Baker testified that he read these reports in the post’s property room. Sergeant Christopher Lewis, an ISP crime scene in vestigator, testified that police reports are not kept in the property room. He testified further, however, that reports are kept at the Putnamville Post. Thus, while trial counsel might have been mistaken in stating th at he read the reports in the property room, this in no way establishes that he did not vi ew the reports at the Putnamville Post. Sergeant Lewis testified further that the systems used to track who has viewed physical evidence held in the property room do not track who has viewed police reports. Thus, the fact that trial counsel’s view ing of the police reports was not documented in evidence logs likewise does not establish that he did not view the reports.Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 66 of 67 begin to determine whether it was favora ble to the defense and material to an issue at trial, or merely cumulative of what was disclosed to Myers. Additionally, Myers has made no attemp t whatsoever to establish that the allegedly suppressed investi gative reports were not avai lable to him through the exercise of reasonable diligence. Esse ntially, Myers asks us to ignore his evidentiary burden and presume not on ly that investigative reports were suppressed, but also that somewhere am ong the allegedly suppressed reports, a nugget of evidence satisfying the requirements of Brady must exist. This we will not do.

3.

[94] Finally, Myers argues that he is entitled to reversal of his conviction because the State committed prosecutorial misconduct at trial. Specifically, he asserts that the State committed prosecutorial miscon duct by knowingly presenting false evidence and perjured testimony. See Giglio v. United States , 405 U.S. 150, 153 (1972) (explaining that “deliberate de ception of a court and jurors by the presentation of known false evidence is incompatible with ‘rudimentary demands of justice’” (quoting Mooney v. Holohan , 294 U.S. 103, 112 (1935)).

[95] Myers has fallen far short of establishing that the complained-of testimony and evidence were false or that the State knew as much. But Myers’s claims of prosecutorial misconduct fail for a more fundamental reason. “Post-conviction procedures do not provide a petitioner with an opport unity to present freestanding claims that contend the or iginal trial court committed error.”Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 67 of 67 Wrinkles v. State , 749 N.E.2d 1179, 1187 n.3 (Ind. 2001). Rather, “‘[i]n postconviction proceedings, co mplaints that something went awry at trial are generally cognizable only wh en they show deprivation of the right to effective counsel or issues demonstr ably unavailable at the time of trial or direct appeal.’” Bunch v. State , 778 N.E.2d 1285, 1289-90 (Ind. 2002) (quoting Sanders
v. State , 765 N.E.2d 591, 592 (Ind. 2002)). “An available grounds for relief not raised at trial or on direct appeal is not available as a grounds for collateral attack.” Canaan v. State , 683 N.E.2d 227, 235 (Ind. 1997). Myers has made no attempt to establish that his claims of prosecutorial misconduct were demonstrably unavailable at trial or on direct appeal. His claims of prosecutorial misconduct are freestanding cl aims of trial error, and as such are not cognizable in th is PCR proceeding.

[96] Judgment affirmed.
Vaidik, C.J., and Robb, J., concur.