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FOR PUBLICATION

FILED
Feb 23 2012, 8:53 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: STEPHEN T. OWENS Public Defender of Indiana KEVIN R. HEWLATE Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KEITH WOODSON, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 49A02-1108-PC-768

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Grant W. Hawkins, Judge The Honorable Christine R. Klineman, Master Commissioner Cause No. 49G05-0307-PC-124220

February 23. 2012 OPINION - FOR PUBLICATION

BARNES, Judge

Case Summary Keith Woodson appeals the denial of his petition for post-conviction relief ("PCR petition"), which challenged his convictions for murder and Class A misdemeanor carrying a handgun without a license. We affirm. Issue The sole issue before us is whether Woodson received ineffective assistance of trial counsel. Facts On May 7, 2002, Stephen Webber shot and killed Anthony Dawson, a/k/a "Frog," in Indianapolis. Tr. 2 p. 34.1 Dawson was friends with Woodson. After police

investigation of the incident, the prosecutors office decided not to file homicide charges against Webber because he had acted in self-defense. On July 7, 2003, Webber was standing outside a friends house in Indianapolis when someone drove by in a green car. This person then began firing at Webber with a handgun, striking and killing him. Thirteen-year-old Patrick Owens had been standing outside near Webber when he was shot, and Owens later identified Woodson as the shooter from a police photo array prepared by Detective Charles Benner of the Indianapolis Police Department. Additionally, fifteen-year-old Mario Johnson ran

outside when he heard shots being fired, and he also later identified Woodson as the
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There were two trials for Woodson and thus, two transcripts. We will refer to the transcript from the first trial as "Tr. 1" and the transcript from the second trial as "Tr. 2." Likewise, we will refer to the appendix from the direct appeal as "App. 1" and the appendix in this appeal as "App. 2."

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shooter from a photo array. Two other people standing outside had been unable to see the face of the driver of the green car. The State charged Woodson with murder, Class B felony possession of a firearm by a serious violent felon, and Class A misdemeanor carrying a handgun without a license. The State later dismissed the serious violent felon charge. Woodsons first jury trial was held on October 18-20, 2004, at which he was represented by private attorney Kimberly DeVane. During Owenss direct testimony, he stated that he had never seen the driver of the green car before the shooting and did not know him. He further discussed that when he was first asked to review a photo array on July 16, 2003, he saw someone familiar in the array but was afraid to say something. On July 21, 2003, however, Detective Benner again contacted Owens, after having been contacted by Webbers mother, and showed Owens another array. This time, Owens identified Woodson as the shooter. On cross-examination, DeVane questioned Owens extensively regarding precisely where he was standing when he saw the shooting. She also elicited testimony that Owens had, before he identified Woodson in the photo lineup, heard rumors around the neighborhood that "PG" had shot Webber; "PG" is Woodsons nickname. She also reviewed statements Owens had previously given in which he had said that he saw Woodson driving in the neighborhood after the shooting but before identifying him in the lineup, and that he had been told that Woodson was "PG." Additionally, it was revealed

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that Owens had told Detective Benner after picking Woodsons picture out of the lineup, "They call him PG," although Owens claimed to not remember saying that. Tr. 1 p. 133. During Mario Johnsons direct testimony, he discussed meeting with Detective Benner on July 25, 2003, and picking Woodson out of a photo lineup. Again, the meeting with Detective Benner had been initiated by Webbers mother. Like Owens, he claimed not to have known who Woodson was before the shooting occurred. He also stated that he had not looked at any pictures related to the shooting before picking Woodson out of the photo lineup. On cross-examination, DeVane examined the details of Johnsons identification of Woodson as he drove away from the shooting. She also directed him to prior deposition testimony, and his statement to Detective Benner, in which he discussed having been asked by Webbers family to look at old yearbook photographs of "PG" and to attempt to identify him as the shooter from them, but he had been unable to do so; Johnson claimed not to remember this. As with Owens, DeVane directed Johnson to his telling Detective Benner that the person he identified from the lineup was "PG"; again as with Owens, Johnson claimed not to remember saying that. Johnson claimed on redirect examination that although he had heard the name "PG" mentioned in the neighborhood after the shooting, he had not known the face that went with that name until Detective Benner showed him the photo lineup. In a further attempt to impeach Johnsons credibility, DeVane presented evidence that while he was waiting to have a pretrial deposition taken, he was overheard by the 4

court reporter and others saying something to the effect of, "If Im going to have to sit here, I want my money." Id. at 430-31. This was inferred by DeVane to mean that Johnson expected to be paid for his testimony in this case. Johnson attempted in his trial testimony to explain his comment as referring to a $1000 Crime Stoppers reward that had been offered in association with Webbers shooting, but he also stated that he knew he would not be paid for his testimony because of his prior cooperation with Detective Benner. As further evidence in Woodsons defense, DeVane presented the testimony of three witnesses, besides Woodson himself, who provided an alibi for him at the time of the shooting: his mother, girlfriend, and girlfriends sister. On October 20, 2004, after the conclusion of evidence in the first trial, the jury was hung and a mistrial was declared. A retrial was scheduled for December 20, 2004. On November 30, 2004, DeVane filed a continuance motion. Among other

matters, DeVane asserted that she "intend[ed] to retain an eyewitness expert to testify in this case" and she needed "additional time to acquire the funds, retain an expert and have the expert review the case to issue an opinion." App. 1 p. 160. The trial court granted the continuance motion. On December 15, 2004, DeVane filed a motion to withdraw her representation, stating that Woodson and his family were unable to pay her as agreed, and in fact could not afford to procure a transcript from the first trial. The trial court granted this motion, found Woodson to be indigent, and appointed a public defender to represent

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him.

However, on April 12, 2005, private attorney Paul Harper filed an appearance on

Woodsons behalf. Woodsons second trial was conducted on July 11-12, 2005. Owens and Johnson both testified again regarding their identification of Woodson as the shooter. Harper cross-examined Owens and Johnson regarding their identifications. He asked Johnson about persons showing yearbook pictures to him in an attempt to identify "PG." He also questioned Owens regarding whether he had discussed the case with anyone before speaking to Detective Benner. However, there was no questioning of either Owens or Johnson regarding their having told Detective Benner that the person they identified as the shooter was known as "PG," nor was there any questioning specifically regarding rumors in the neighborhood that "PG" had been the shooter. Harper also did not present any evidence of Johnsons statement before his deposition regarding wanting money. He also did not question Owens regarding his having seen Woodson driving in the neighborhood after the shooting and having been pointed out to him as "PG" by another person. Harper did re-present Woodsons alibi defense, with Woodsons mother and his girlfriends sister testifying. Harper did not attempt to hire an eyewitness identification expert to assist in the defense or testify on Woodsons behalf. During the second trial, the State was able to present additional evidence that it did not at the first trial. Specifically, Shelby Stone, an acquaintance of Woodsons, testified that while being transported together from jail to court on one occasion, Woodson told him, "you know Im on the murder for killing that mother f***er that killed Frog, which 6

is my little cousin. And then he said, you know we couldnt let that s*** ride." Tr. 2. p. 294. Stone took this to mean that "they" had murdered Webber as revenge for Dawsons killing. Id. at 295. Stone, who was facing a charge of Class A felony dealing in cocaine, was offered a plea deal to Class C felony possession of cocaine partially in exchange for his cooperation in Woodsons case. The jury in the second trial found Woodson guilty as charged. After Woodson was sentenced to a sixty-year term, he filed a direct appeal challenging the length of his sentence, and this court affirmed. See Woodson v. State, No. 49A02-0509-CR-831 (Ind. Ct. App. July 16, 2006). No other issues were raised on direct appeal. On February 5, 2007, Woodson filed a PCR petition, which was later amended by counsel. The petition alleged that Harper had provided Woodson with ineffective

assistance of trial counsel because he did not adequately impeach the credibility of Owens and Johnson during the second trial, and because he did not attempt to present the testimony of an eyewitness identification expert. The petition further alleged the

existence of newly discovered evidence, namely, that Owens now believed he could not identify Woodson as the person who shot Webber. During the PCR hearing, Woodson presented the testimony of Dr. Solomon Fulero. Dr. Fulero is a psychology professor, licensed Ohio attorney, and expert on eyewitness identification who has testified in numerous criminal cases, and whom DeVane had considered hiring before the first trial, but had not because of cost considerations. Dr. Fulero was questioned at length regarding factors that could have 7

affected the reliability of Owens and Johnsons eyewitness identifications, after having reviewed their testimony and depositions and the testimony of Detective Benner. Dr. Fulero, however, testified that he never states an opinion as to the ultimate veracity of an eyewitnesss testimony. DeVane also testified at the PCR hearing. She stated that she believed it was important to present evidence of Johnsons comments before the deposition regarding wanting money. She also believed it was important to cross-examine Owens and Johnson regarding rumors they had heard in the neighborhood that "PG" had shot Webber and that they explicitly identified Woodson as "PG" to Detective Benner when they picked his photograph out of the lineups. She also stated that after the first trial, she had discussed with Woodsons family that if she conducted a second trial, "we absolutely have to have the eyewitness." PCR Tr. p. 86. Presumably, DeVane was referring to Dr. Fulero or a similar expert. Harper testified at the PCR hearing that he was aware of DeVanes opinion that an eyewitness identification expert would be important in a retrial, but that he had not pursued hiring one because of cost and his belief that he could not seek public funds to pay for an expert. Also, Harper could not recall why he did not present evidence of Johnsons pre-deposition comments, why he did not question Owens and Johnson regarding their naming of "PG" as the person they identified in the photo lineups, or why he did not question Owens regarding purportedly having seen Woodson driving in the neighborhood after the shooting but before speaking to Detective Benner. 8

Finally, Owens testified at the PCR hearing that he, in fact, had not gotten a good look at Webbers killer and could not now positively say that Woodson was that person. Owens stated that he had felt pressured to make an identification by Detective Benner and Webbers mother, but could not precisely identify anything they said or did to pressure him to identify Woodson. He also noted that he himself had been accused of murder based on a photo identification and that "its hurtful to see somebody thats doing time for stuff or, you know, for something that they might not have even did." Id. at 123. On July 7, 2011, the post-conviction court entered its order denying Woodsons PCR petition, with accompanying findings and conclusions. The court did not find Owenss PCR testimony to be credible and, thus, rejected Woodsons claim of newly discovered evidence. It further stated that Harpers cross-examination of Owens and Johnson, while not identical to DeVanes cross-examination, was nonetheless "skillful, pertinent, and effective." PCR App. p. 176. Regarding an eyewitness identification expert, the post-conviction court found it doubtful either that public funds would have been allocated for such an expert or that testimony by such an expert would have been admissible at trial. Woodson now appeals. Analysis Post-conviction proceedings provide defendants the opportunity to raise issues not known or available at the time of the original trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007), cert. denied. "In post-conviction proceedings, the defendant bears the burden of proof by a preponderance of the evidence." Id. We review 9

factual findings of a post-conviction court under a "clearly erroneous" standard but do not defer to any legal conclusions. Id. We will not reweigh the evidence or judge the credibility of the witnesses and will examine only the probative evidence and reasonable inferences therefrom that support the decision of the post-conviction court. Id.

Additionally, the PCR court here entered findings of fact and conclusions thereon, as required by Indiana Post-Conviction Rule 1(6). We cannot affirm the judgment on any legal basis, but rather, must determine if the courts findings are sufficient to support the judgment. Lile v. State, 671 N.E.2d 1190, 1192 (Ind. Ct. App. 1996). On appeal, Woodson has abandoned his claim of newly discovered evidence and focuses solely upon Harpers alleged ineffectiveness during his second trial. To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his or her counsels performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben

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