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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. APPELLANT PRO SE: FREDDIE BYERS Crown Point, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
FREDDIE BYERS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 71A04-0703-PC-170

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable Michael P. Scopelitis, Judge Cause No. 71D04-9701-CF-59

December 27, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Judge

Freddie Byers appeals the post-conviction court's denial of his petition for postconviction relief. Byers raises three issues, which we revise and restate as: I. Whether Byers was denied the effective assistance of trial and appellate counsel; and Whether Byers was denied the effective assistance of postconviction counsel.

II.

We affirm. The relevant facts, as set out in Byers's direct appeal, follow: Byers, known to some as "Flint," was convicted of murdering Bennie Spears and James Edison and attempting to murder Almeka Dodds. Spears and Dodds lived in a South Bend home with their two children, ages one and two. Edison was visiting the home in the late afternoon of January 30, 1997, when a knock was heard at the door. Dodds recognized the two visitors as "Flint" and "Gill." Flint was a friend of Spears who had previously been to the home "[a] whole bunch of times," but Dodds had met Gill only "[a] couple of times" and he had never previously been to the home. Dodds went to the dining room where she heard Spears tell Flint not to point a gun at him, then heard a gunshot. When she turned around, she could see that Spears had been shot and Flint was holding a gun. After Flint grabbed Dodds by the hair and asked where the money was, Dodds retrieved cash hidden in the living room sofa. Meanwhile, Flint told Gill to lock the children in the bathroom, get a knife from the kitchen, and cut Edison's neck. Gill complied. Flint then told Gill to take Dodds to the basement and shoot her twice in the head. As Dodds was being taken to the basement, Edison got up from the floor and tried to escape through a window. A neighbor saw Edison "fly[ ] out of the window" then fall to the ground. As he rose, Edison was shot in the head. The neighbor drove to a pay phone and called 911. Flint or Gill then fired shots into the basement, where Dodds "tried to hide until [she] could stop hearing gunshots." After Dodds believed the intruders had left the house, she ran to a neighbor's house. When police arrived, they found the two children locked in the bathroom. Spears and Edison both died of gunshot wounds.

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Dodds supplied the police only with the names "Flint or Fred" and "Gill." However, she also said that the police should have a picture of Flint from an "incident" that occurred at the home of Flint's girlfriend Yolanda a few months earlier on the evening of the Tyson/Holyfield fight. The police identified Byers as a person who had been arrested at that time and place. They then assembled photo arrays from which Dodds identified Byers as Flint. Based largely on Dodds' testimony and identification, Byers was charged, tried and convicted [of two counts of murder, one count of attempted murder, and one count of robbery as a class B felony]. Byers v. State, 709 N.E.2d 1024, 1025-1026 (Ind. 1999). Byers was sentenced to the maximum term of years for each count, to be served consecutively, for a total sentence of 200 years imprisonment. Id. at 1025. On appeal, Byers argued that the trial court erred by: (1) excusing the only African-American on the jury panel for cause, (2) allowing testimony and a photograph from a prior arrest into evidence, (3) admitting a photograph of allegedly "gruesome" knife wounds to one of the victim's neck into evidence, and (4) instructing the jury on the issue of inconsistent statements made by a witness. Id. The Indiana Supreme Court affirmed his convictions. Id. at 1029. Byers filed a petition for post-conviction relief on May 11, 2000, and an amended petition on August 12, 2004. In the amended petition, Byers alleged in part that his trial counsel was ineffective for failing to move for a mistrial because of certain prejudicial outbursts made by spectators in front of the jury and for failing to impeach Dodds with evidence of a prior inconsistent statement. He also alleged that his appellate counsel was ineffective for failing to raise these issues on appeal.

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Counsel representing Byers at his post-conviction hearing examined Byers directly on his recollection of the outbursts of spectators at trial. Counsel also tendered affidavits from Byers's trial and appellate counsel, both of whom stated that they had no independent recollection of the trial. Byers then raised several issues independently for the post-conviction court's consideration, which the court allowed. In accordance with the court's instructions, Byers's post-conviction counsel later submitted a Supplement to Amend Petition for Post-Conviction Relief concluding that, "after evaluating the additional claims submitted by [Byers], post conviction counsel finds lack of merit and no purpose in further evidentiary hearings in this cause." Appellant's Appendix at 53. After the hearing, the post-conviction court entered findings of fact and conclusions thereon as follows: ***** 8. Petitioner claims his trial counsel was ineffective in failing to object to spectator outbursts during trial, to request jury admonishments and a mistrial in relation thereto. Apparently, the first outbursts occurred during the voir dire while the court was reading the charges. Immediately preceding the commencement of the prosecutor's opening statement, the prosecutor asked to approach the bench. At that time a sidebar conference was held outside the hearing of the jury during which the prosecutor made reference to " . . . some reaction in the back of the courtroom" when the court read the charges. (R. 495-499). Both the state and the defense agreed that the court remove the jury and admonish all spectators that any outbursts would not be tolerated. The trial court did so. What the record does not reveal is the nature of the interruption by the spectators that prompted the prosecutor to approach the bench. Whatever the verbal reaction to the reading of the charges by the spectators, the prosecutor responded by 4

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suggesting to the court that the jury be removed and the spectators admonished. (R. 496-499). The petitioner claims that while the state was making its opening statement, spectators, in front of the jury, made comments such as "you're guilty motherfucker"; "I hope you fry for this you bastard" and other derogatory and prejudicial statements. The petitioner also claims the statements must have been egregious to warrant the prosecutor's intervention. However, no such statements appear of record. Petitioner's trial counsel also recalls no such statements. In fact, there is no evidence that such statements were made other than petitioner's claim that they were made. Additionally, petitioner is obviously mistaken as to when the outbursts he refers to occurred since defendant admits the prosecutor asked to approach the bench as a result of the outbursts and cites to that point in the record at which the prosecutor asked to approach the bench immediately before commencing his opening statement. 10. Another spectator outburst occurred when spectator, Jeannie Dunlap, is heard by a sheriff's deputy making noise during the direct examination of one of the state's witnesses, A. Dodds. The officer instructed Ms. Dunlap to keep silent. Ms. Dunlap became angry and left the courtroom, while making boisterous comments. The court thereupon excused the jury and when Ms. Dunlap re-entered the courtroom, the court found her in contempt and sentenced her to spend the night in jail. (R. 564-567). It appears from the record that Ms. Dunlap's outburst related to her son having been removed from the courtroom by the police, probably due to the fact that there was an outstanding warrant for his arrest. It does not appear that the outburst related to the petitioner or the testimony of the witness who was on the stand at the time of the outburst. There is certainly no indication in the record that the outburst was directed at or derogatory to the defendant. The following day, the trial court reminded spectators that they must not make any interruptions, audible or visible. There were also further admonishes [sic] to the spectators on several occasions. These admonishes [sic] appear from the record to have been precautionary and not prompted by any further outbursts. (R. 548, 666, 792 and 847).

11.

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12.

The record reveals that trial counsel did not object at any time during the trial to spectator outbursts, did not request jury admonishments or move for a mistrial. At the post-conviction hearing the petitioner introduced affidavits from trial and appellate counsel. The affidavit of trial counsel states that the attorney has no independent recollection of the trial proceeding. The affidavit from appellate counsel states that the attorney has no independent recollection of the matters presented on appeal but that the brief filed on direct appeal would be the best source ascertaining those facts. At the post-conviction hearing, Petitioner Byers testified in support of his claims. He testified that trial counsel refused to raise objections to spectator outbursts at trial that were prejudicial to his right to a fair trial and trial counsel failed to use the taped statement of Almeka Dodds for impeachment of that witness. Further, Byers testified that appellate counsel failed to adequately confer with him on the issues to be presented on direct appeal and refused to raise the claim of trial counsel's ineffective assistance. Post-conviction counsel also introduced the appellate briefs and Supreme Court opinion and trial record as exhibits during the hearing. The State of Indiana presented no witnesses at the post-conviction hearing in this case. The petitioner introduced a document, which the Court designated as defendant's Exhibit D compromising [sic] approximately thirteen (13) additional claims for post conviction relief. The Court granted leave for post-conviction counsel to further amend the postconviction petition after evaluating those additional claims. In compliance therewith, post-conviction counsel filed an in depth analysis of the claims and a finding of no merit.
Conclusions of Law

13.

14.

15.

16.

1.

Post-conviction procedures are reserved for subsequent collateral challenges and may not provide a "super appeal" for the convicted. Weatherford v. State, 619 N.E.2d 915, 916 (Ind. 1993).

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2.

Post-conviction petitioner, Freddie Byers, bears the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Weatherford, 619 N.E.2d at 917. Petitioner claims that his trial counsel was ineffective in failing to object to outbursts, seek admonishment and mistrial. *****

3.

4.

The trial record is devoid of any mention of the words spoken by any spectator. In addition, there is no evidence that any prospective juror or juror ever heard or could have heard what Ms. Dunlap or any unidentified spectator might have said. There is no basis to believe that petitioner was prejudiced by any of the outbursts that occurred at trial. There is no evidence that trial counsel heard what any spectator said or that trial counsel realized that the jury heard or may have heard what any spectator said. There is no evidence to indicate that trial counsel should have taken the measures petitioner argues for. Stated differently, it has not been shown that trial counsel had any reasons to act. It has merely been shown that some outbursts occurred. In this regard, defendant's trial counsel was neither ineffective nor incompetent. It is likely that the trial court determined that the content of the outbursts had not come to the attention of any prospective jurors or jurors and that the risk of prejudice appeared non-existent or minimal and therefore the Court chose not to interrogate the jury to determine who, if any, might have been exposed to the comments. Therefore, the trial court did not commit reversible error by not inquiring of the jury. In any event, petitioner waived such a claim by failing to raise it on direct appeal. Woods v. State, 701 N.E.2d 1208 (Ind. 1998). The Court having reviewed the brief prepared and submitted to the Indiana Supreme Court by petitioner's appellate counsel concludes that said counsel did not render a deficient or incompetent performance and therefore there was no resulting prejudice to the petitioner. 7

5.

6.

7.

8.

Any issues petitioner claims were prejudicially omitted by appellate counsel from the direct appeal were insignificant and clearly weaker than those presented by appellate counsel on behalf of the petitioner. The claims now raised by petitioner are clearly weaker than those raised on direct appeal. There is no reasonable likelihood that a different result would have occurred on direct appeal if these issues had been raised at that time. ORDER

9.

1.

For the foregoing reasons the amended and supplemental petition for post-conviction relief is hereby DENIED. Petitioner/defendant's conviction is affirmed.

Id. at 13-20. Thus, the post-conviction court denied Byers's petition for post conviction relief. Before discussing Byers's allegations of error, we note the general standard under which we review a post-conviction court's denial of a petition for post-conviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). Id. "A post-conviction court's findings and judgment will be reversed only upon a 8

showing of clear error

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