John R. Myers II v. State of Indiana

May 28 2015, 7:33 am

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Stephen T. Owens Gregory F. Zoeller

Public Defender of Indiana Attorney General of Indiana

Anne Murray Burgess Ian McLean

Joanna Green Deputy Attorney General

Deputy Public Defenders Indianapolis, Indiana

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

John R. Myers II, May 28, 2015

Appellant-Petitioner, Court of Appeals Cause No.

55A05-1312-PC-608

v. Appeal from the Morgan Superior

Court

State of Indiana,

The Honorable G. Thomas Gray,

Appellee-Respondent 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 following restated issues on appeal:

1. Did the post-conviction court err in concluding that Myers was not

denied the effective assistance of trial counsel?

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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 evidence 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 efforts, Behrman’s remains were

ultimately discovered on March 9, 2003, in a wooded area near the

intersection of Warthen and Duckworth 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 woman 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 this report. While another report

placed Behrman south of Bloomington at 4700 Harrell Road at

approximately 9:38 a.m., some authorities later discounted this report

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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 trail 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 identification 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 approximately 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 Behrman’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 Bloomington 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 additionally stated that he and his

girlfriend, Carly Goodman, had cancelled their plans to go to Myrtle

Beach, South Carolina, and to Kings 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.

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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 hysterical 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 problems 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 bridge 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 late April or early May of 2000,

Goodman broke off her relationship with Myers. Goodman denied

that she and Myers had ever made plans 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 area, 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 house 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 inaccurate reflection of the record. After reviewing Jodie Myers’s testimony,

we agree. Although a portion of her testimony, when viewed in isolation, appears to support the assertion

that she made the phone calls on May 31, 2000, her testimony 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 apparent 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 impact on its resolution of Myers’s direct appeal.

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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 conversation, on June 27, 2000, Detective

Rick Crussen of the Bloomington Police Department interviewed

Jodie and Myers’s father, John Myers 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 Swaffard, and asked to borrow $200.

Myers told Swaffard he was unable 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 disappearance. 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 presence. 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 falsely stated to his Bloomington

Hospital supervisor that police had questioned him in connection with

Behrman’s disappearance because her bicycle was found close to his

home. Also in June of 2000, Myers stated to a co-worker that he

wondered whether authorities had investigated a barn in a field located

on Bottom Road off of Maple Grove Road. Additionally, some weeks

after Behrman disappeared, Myers told another co-worker during a

delivery run that Behrman’s bicycle 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 location a short distance from his

mother’s residence and stated he had found Behrman’s bicycle there.

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In the late spring to late summer of 2001, Myers again raised the topic

of Behrman’s disappearance with another co-worker. As the two were

driving on Bottom and Maple Grove 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-worker that he knew of someone in

Florida who had Behrman’s identification card or checkbook.

Sometime in November or December 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 letters in some food trays one morning

that he believed Kinser should look at, apparently in connection with

the Behrman disappearance. Myers said he felt bad about what had

happened to that “young lady” and that he wished to help find her if

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he could. Myers additionally compiled a list of places potentially

providing clues to Behrman’s location. 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 remains were discovered by a hunter in

a wooded area near the intersection of Warthen and Duckworth Roads

in Morgan County approximately thirty-five to forty yards from a

clearing in the timber north of Warthen Road. Authorities 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 trauma. Investigators recovered a

shotgun shell wadding from the scene, as well as 380 number eight

shot lead pellets. The wadding found 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 presence of lead pellets in a variety

of places, together with certain soil stains consistent with body

decomposition, suggested that after 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 another 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 there before. According to this co-

worker, 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 remains were eventually discovered. The opinion contains

no such assertion. Instead, the court noted that a route 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.

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distinctive. Myers also stated that 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 Swaffard, “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 investigating him because Behrman’s bicycle had

been found in the vicinity of his house. Myers made approximately

three or four references to Behrman’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 Lang took Goodman on a thirty-six-

mile 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 Duckworth Roads, approximately thirty-

five to forty yards from where Behrman’s remains were discovered, as

the place that Myers had driven her in March 2000.

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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 sixty-five years. This court affirmed

Myers’s conviction on direct appeal and 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 issued its written order denying Myers’s

PCR petition on November 18, 2013. Myers now appeals.

[5] In a post-conviction proceeding, the petitioner bears the burden of establishing

grounds for relief by a preponderance 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 appealing from a negative

judgment.” Id. at 1138 (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind.

2004)). In order to prevail, the petitioner must demonstrate that the evidence as

a whole leads unerringly and unmistakably to a conclusion opposite the post-

conviction 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 showing of clear error, i.e., “that which

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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 counsel were constitutionally ineffective.3 A

petitioner will prevail on a claim of ineffective assistance of counsel only upon a

showing that counsel’s performance fell below an objective standard of

reasonableness and that the deficient performance prejudiced the petitioner.

Bethea v. State, 983 N.E.2d 1134. To satisfy the first element, the petitioner

must demonstrate deficient performance, which is “representation that fell

below an objective standard of reasonableness, committing errors so serious

that the defendant did not have the ‘counsel’ guaranteed by the Sixth

Amendment.” 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, but for counsel’s errors, the result of the

proceeding would have been different.” Id. at 1139. “A reasonable probability

is one that is sufficient 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 collectively as “trial counsel.”

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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 made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable

precisely to the extent that reasonable 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 failure 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 claims 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 for 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.

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[9] The interrogation in question was conducted in two parts. In the first part of

the interview, Myers was questioned by Indiana State Police Detectives Rick

Lang and Tom Arvin, and Myers repeatedly denied any involvement in or

knowledge of Behrman’s disappearance and murder. Myers was then arrested

on a separate charge of receiving stolen property, booked, fingerprinted, and

swabbed for DNA. Thereafter, a second, post-arrest interview was conducted

by Detective Jeff Heck, during which Myers again denied any involvement in

Behrman’s disappearance and murder. The State, defense, and trial court spent

a substantial amount of time discussing redactions of the interrogation.

Ultimately, the jury heard an audio recording of and was provided with a

written transcript of the partially redacted 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 redacted. 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 performance 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 substance abuse and recovery process. The

trial court described the post-arrest interview as largely filled with “a lot of

irrelevant gibberish” that “add[ed] nothing to the factual determination in this

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case.” Trial Transcript at 26. We think this is a fair characterization. Although

Myers continued to proclaim his innocence in the post-arrest interview, his

denials of involvement were merely cumulative 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 could have viewed as flippant under the

circumstances. For example, at one point, Myers stated, “you know, as we’re

sitting there talking, I’m thinking cigarettes, I’m thinking coffee[.]” PCR Exhibit

305A at 154. It was not deficient performance for trial counsel to agree to

redact the post-arrest interview in its entirety because it could have harmed

Myers and, in any event, would have added little, if anything, to the pre-arrest

interview. For the same reason, Myers was not prejudiced by the redaction.

[11] Myers also argues that counsel performed deficiently by failing to object to

portions of Detective Arvin’s and Detective Lang’s testimony concerning the

May 2, 2005 interrogation. Specifically, 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 intelligence” and because “murder is one of the

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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 statement 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 established prejudice. With respect to

Detective Arvin’s testimony that Myers never adamantly or expressly denied

guilt, trial counsel went on to elicit testimony clarifying that Myers had, in fact,

denied involvement in Behrman’s disappearance 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 redacted interview and received a written

transcript thereof, and was therefore able to draw its own conclusions as to

whether Myers’s responses and tone were inappropriately casual. Myers has

made no attempt to explain how Detective 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 established 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 counsel’s failure to challenge the State’s

characterization of the May 2, 2005 interrogation in its opening statement and

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closing argument. Specifically, Myers takes issue with the prosecutor’s

assertion in opening statements that Myers’s demeanor was nonchalant—but,

as we explained above, the jury heard Myers’s interview and was able to draw

its own conclusions in this regard. Myers also notes that the State used a

Powerpoint slide presentation in its closing argument, and several 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”, followed by excerpts from the transcript of Myers’s

interrogation. PCR Exhibit 132. We note, however, that the slide presentation

was not admitted as an exhibit at trial; instead, 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 defense, on the other hand, emphasized in

its closing argument that Myers repeatedly denied guilt during his police

interrogation. Most importantly, the jury was provided a transcript and heard

an audio tape of the interrogation, during which Myers repeatedly denied any

involvement in Behrman’s disappearance and murder. Under these facts and

circumstances, we cannot conclude that Myers has established that he suffered

prejudice as a result of trial counsel’s failure to object to the use of the slides.

B.

[14] Next, Myers argues that trial counsel Patrick Baker was ineffective for telling

the jury in opening statements that the defense would present certain evidence,

and then failing to do so. Specifically, during opening statements, Patrick

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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 alternative suspect, but that the dog was called off. Counsel

also told the jury that there was evidence that Hollars and Behrman were seen

arguing days before she disappeared. Trial counsel did not present evidence to

support these claims.

[15] The parties acknowledge that Patrick Baker 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 trial 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 misrepresentation in his opening statement. We will

presume, however, that an attorney who tells the jury that he will present

evidence that he either knows or should 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 that a search dog alerted to Hollars’s

residence, we accept Myers’s argument that trial counsel’s performance was

deficient. We are left to consider whether the statements 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 to

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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 the 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 not 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 considered Hampton’s

argument that his trial counsel was ineffective for failing to fulfill two promises

made during opening statement. First, Hampton’s trial counsel stated that

Hampton would testify that he was not involved 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 involved with any gang.

[18] The court explained that unforeseeable developments at trial may justify

reversals of this nature, but that “when the failure to present the promised

testimony cannot be chalked up to unforeseeable events, 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 Cir. 1988)). The court

concluded that to the extent trial counsel had legitimate reasons to conclude

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that Hampton should not testify, those reasons should have been obvious from

the outset of the case. In reaching its conclusion that counsel’s performance

was unreasonable, the court emphasized the fact that trial counsel had explicitly

promised the jury that Hampton himself would testify, reasoning that

“Hampton’s unexplained failure to take 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 that the inculpatory testimony of the

prosecution’s witnesses was essentially correct.” Id. at 258.

[19] The court also found trial counsel’s failure to present testimony that Hampton

was not involved with a gang unreasonable, noting that such evidence would

bear on the likelihood that he had participated 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 evidence “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 concluded that trial counsel’s “breach of

the promises he made in the opening statement 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 failure to investigate exculpatory occurrence

witnesses.” Id.

[20] In Barrow v. Uchtman, 398 F.3d 597, the Seventh Circuit again encountered a

claim that counsel was ineffective for failing to deliver on promises made during

opening statements. In Barrow, trial counsel in opening statement informed the

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jury that “we will tell you about” the crime and the defendant’s denial of

involvement. Id. at 606 n.7. During the trial, however, Barrow’s counsel

presented no evidence whatsoever in defense. The court concluded that Barrow

had not established that he was prejudiced by trial counsel’s failure to deliver on

his promise to present exculpatory evidence. 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 the 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 testimony, but the primary evidence

against Barrow was his own confession. Under these circumstances, Barrow’s

personal testimony was far less critical than Hampton’s. Moreover, the content

of Barrow’s proposed testimony was unlikely to have altered the ultimate

verdict given the abundant evidence against him. Thus, the court concluded,

Barrow could not establish that he was prejudiced by his trial counsel’s

unfulfilled promises.

[21] Like the court in Barrow, we also conclude that Myers was not prejudiced by

trial counsel’s unfulfilled promises. First, we note that trial counsel made no

promise that Myers himself would testify. Patrick Baker’s representations that

evidence would be presented that a dog had followed Behrman’s scent to

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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 exculpatory evidence.

[22] Moreover, although trial counsel failed to deliver on these specific promises,

other evidence casting suspicion on Hollars was presented to the jury.

Evidence was presented establishing that Hollars had hired Behrman to work at

Indiana University’s Student Recreational Sports Center (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 cycling club might be interested. Becky

Shoemake, who was Behrman’s cousin, roommate, and closest friend on

campus, testified that Behrman had confided 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 not. 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 counsel admitted into evidence 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 called 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 shot, the same size used in Behrman’s

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murder. Importantly, the jury was presented with evidence that a bloodhound

tracked Behrman’s scent near Hollars’s residence. Hollars testified that he was

questioned by police on the day of Behrman’s disappearance and again by

Detective Arvin in 2003, and he believed that he was under suspicion.

[23] From the jurors’ questions, it is clear that the jury considered the possibility of

Hollars’s involvement in Behrman’s murder. 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. The 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 premises to check on athletic fields.

[24] The jurors also took note of the possibility that Behrman was pregnant. A juror

asked Behrman’s mother if Behrman had appeared to be sick, nauseated,

fatigued, or lightheaded, and Behrman’s mother 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 conducted 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 evidence

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that the bloodhound alerted to Hollars’s residence and that Hollars was seen

arguing with Behrman shortly 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-Evans, 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. Salzman testified in his

deposition that his office investigated Behrman’s disappearance until her

remains were discovered in Morgan County, at which time the investigation

was turned over to Morgan County officials. Salzman testified that during the

Monroe County investigation, he never filed charges against anyone in

Behrman’s disappearance. Salzman was presented with a probable cause

affidavit for Wendy Owings, and he testified that the plan was to use the charge

to get to Sowders-Evans and Clouse. Salzman declined to file charges against

Owings because he did not believe the evidence was sufficient. Salzman was

never presented with a probable cause affidavit for Myers.

[27] Salzman testified further that after Morgan County took over the investigation,

he continued to receive tips from members of the community and jail inmates,

which he would pass on to Detective Lang. One such tip came from Betty

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Swaffard, Myers’s grandmother, who told Salzman that Myers had been

behaving strangely at the time of Behrman’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 investigate further. Thus, from Salzman’s

testimony, it is apparent that Myers was not presented to Salzman as a suspect

during Salzman’s official investigation as the Monroe County Prosecutor.

While it appears that Salzman eventually came to personally suspect Myers

based on Swaffard’s testimony, this occurred 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 demonstrably false.

[28] Nevertheless, because Salzman did not testify at trial, Patrick Baker’s promise

concerning the substance of his testimony necessarily went unfulfilled. We

note, however, that at the PCR hearing, Myers elicited no testimony from trial

counsel concerning the failure to call Salzman as a witness. Because Myers has

made no attempt to discount the possibility that trial counsel made a strategic

decision not to call Salzman to testify, he has not satisfied his burden of

establishing deficient performance on this issue. See United States ex rel. Hampton

v. Leibach, 347 F.3d 219 (explaining that unexpected developments at trial may

justify an attorney’s decision not to present evidence 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 reasonable

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attorney behavior can only support a claim of ineffective assistance if that

presumption is overcome by specific evidence as to the performance of the

particular lawyer”), trans. denied. Nor has he established sufficient prejudice to

justify relief on this basis. The jury was presented with ample evidence that the

initial investigation focused on Owings, Sowders-Evans, and Clouse, and that

Myers was not developed as the primary suspect until much later. Under these

facts and circumstances, we cannot conclude that trial counsel’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 direction of Myers’s residence, on the

date she disappeared. According to Myers, 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 issue presume that the only reasonable strategy trial

counsel could have pursued was one that depended heavily 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 establish reasonable doubt by presenting

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multiple possible alternative 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 has not proved its case it sometimes is

better to try to cast pervasive suspicion 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 asked what he wanted the jury to believe concerning

Behrman’s bicycle route, Patrick Baker initially 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 wanted 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 north—rather, trial counsel sought to

establish that Behrman would not have followed the north route all the way to

Myers’s residence in light of her schedule that day.

[32] We cannot conclude that trial counsel’s decision to pursue a defense theory that

allowed for the possibility that Behrman had ridden north was unreasonable.

As an initial matter, we note that trial counsel presented evidence supporting

the theory that Behrman had ridden south. Trial counsel elicited testimony that

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Maral Papakhian, a high school classmate of Behrman’s, had reported seeing

Behrman riding her bike on Harrell Road, 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 Sowders-Evans had been

passengers in Clouse’s vehicle when he struck Behrman and abducted her on

Harrell Road. Additionally, in both opening 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 counsel’s Hollars theory was premised in part

on the fact that a bloodhound had scented 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 would 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 Maple Grove Road either 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 north route, less than one mile from

Myers’s residence. Although it has been suggested that Behrman could have

taken the south route, been abducted and 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 bike was spotted near Myers’s residence

“before noon.” Trial Transcript at 1226. Additionally, evidence from the

bloodhound tracking search was consistent with Behrman having ridden the

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bike to its final location as opposed to being driven there in a vehicle. Thus,

although it is not impossible for the bike to have been dumped, we cannot

conclude that it was unreasonable for trial 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 the defense to conclusively eliminate the

possibility that Behrman had ridden north that morning, the evidence simply

did not allow for such certainty.

[34] Moreover, none of the evidence Myers argues should have been used to

impeach the theory that Behrman rode north was particularly strong. For

example, Myers argues that trial counsel should have established that shortly

after Behrman’s disappearance, police investigated routes south and east of

Bloomington. Considering the breadth of the investigation in this case and the

fact that investigators were simultaneously investigating possible routes north of

Bloomington, such evidence was unlikely to impress the jury. Myers also

suggests that evidence should have been presented to the effect that

investigators and Behrman’s family believed “[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 daughter 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 to

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pressure the Behrmans about the specifics 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 cyclist who conducted a timed ride from the

Behrman residence to the location where Behrman’s bike was discovered, with

evidence that the ride was accomplished 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 which 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 were ineffective for failing to object to

hearsay testimony discrediting Papakhian’s sighting of Behrman on Harrell

Road on the morning of her disappearance. 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 cross-

examined 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 concerning a possible pregnancy was crucial. It was not

unreasonable for trial counsel to forego intense cross-examination on other, less important issues in order to

avoid appearing antagonistic.

5

The results of the timed ride suggested that Behrman might have been able 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.

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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 Road 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 Arvin testified further that when he

interviewed Papakhian, she recalled having an argument with her boyfriend at a

small party the night before the sighting, and she named several other people

who had attended the party. Detective Arvin testified that he interviewed five

people as a result of his interview with Papakhian, and that he ultimately

reported to Detective Lang “that the timeline 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 fifteen 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 water 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 there on the date of her disappearance.

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[38] Myers argues that Detective Arvin testified to statements made to him by the

other partygoers Papakhian identified, and that a hearsay objection to this

testimony would have been sustained.6 But Myers has not directed our

attention to a single out-of-court statement made by these unnamed individuals

and admitted into evidence through Detective Arvin’s testimony. Instead,

Detective Arvin testified that after interviewing Papakhian and five other

witnesses, he came to the conclusion that Papakhian’s timeline did not fit and

she had probably seen Behrman on Tuesday. When giving a further

explanation of why he reached the conclusion, Detective Arvin referred not to

any statements or information gathered from 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 Detective Arvin testified to

any out-of-court statements made by the unnamed witnesses he interviewed,

Myers has not established that trial counsel 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 objected 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 testimony of others. Myers

makes no argument that trial counsel were ineffective for failing to call Papakhian as a witness, and

Papakhian did not testify at the PCR hearing.

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Sheriff’s Deputy and canine handler Charles 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 trainings and worked homicide investigations

in six states. Deputy Douthett testified further that he and Sam had conducted

numerous real-world tracking searches, including some cases involving tracking

bicyclists. Deputy Douthett went on to describe the process used to present a

bloodhound with a scent and to track that scent.

[40] Deputy Douthett testified further that the FBI contacted him and asked him to

come to Bloomington to conduct a tracking search in the Behrman case. An

exhaustive description of the tracking search is not necessary here. It suffices

for our purposes to note that Deputy Douthett and Sam were taken to a spot on

North Maple Grove Road roughly 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 point 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 hundred 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 point and she followed it across Highway 37 before

turning south on Kinser Pike.

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[41] Myers argues that evidence of the bloodhound tracking search was

inadmissible, or at the very least subject 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 that 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, however, 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 admission of the bloodhound

tracking evidence would now be evaluated under Indiana Evidence Rule

702(b), which provides that “[e]xpert scientific testimony is admissible only if

the court is satisfied that the expert testimony rests upon reliable scientific

principles.” According to Myers, the application of Rule 702(b) would result in

the exclusion of bloodhound tracking evidence 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 even if bloodhound tracking evidence

might be deemed admissible under the current rules of evidence, trial counsel

were ineffective for failing to impeach the evidence by establishing its

unreliability.

[42] We need not address whether the bloodhound tracking evidence in this case

was admissible or subject to impeachment. “[A]n objection to inadmissible

evidence may be waived as part of reasonable trial strategy, which will not be

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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 evidence when doing so serves 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 testified that he could not recall whether he

considered objecting to the bloodhound tracking evidence. Likewise, he could

not recall whether he considered consulting with an expert on bloodhounds or

researched the admissibility of such evidence, although he believed he or

someone in his office had probably done some research on the issue. He noted

on cross-examination that the bloodhound evidence put Behrman within a

reasonable proximity of Hollars’s house around the time of her disappearance.

[44] It is Myers’s burden to overcome the presumption that there were strategic

reasons for the decisions trial counsel made. If Myers cannot satisfy that

burden, he cannot establish deficient performance. Patrick Baker’s inability to

recall at the time of the PCR hearing whether he researched bloodhound

evidence or considered objecting 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 standard 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 decisionmaking

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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 tracking 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 strategy because it placed Behrman near

Hollars’s residence. Indeed, 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 the ultimate wisdom of trial counsel’s

strategic decisions on this issue. Because Myers has not overcome the

presumption that trial counsel acted competently in declining to object to or

impeach the bloodhound tracking evidence, 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 to

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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 asked her to look after his daughter

because he needed some time alone to think. Swaffard asked what was on his

mind, and Myers said, “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.” 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 house, 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 close relationship with Detective Lang.

First, counsel asked Swaffard whether she knew Detective Lang’s telephone

number, and she responded affirmatively. Second, counsel asked what

Detective Lang’s phone number was, and Swaffard began to answer but was

interrupted by an objection from the State. The trial court sustained the

objection, and trial counsel declined to cross-examine Swaffard further.

[47] On appeal, Myers argues that trial counsel were ineffective for failing to use

recordings of telephone conversations between Myers and Swaffard to impeach

Swaffard’s testimony at trial. We note that in May 2005, with Swaffard’s

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permission, Detective Lang began recording Swaffard’s phone calls with Myers.

Some of these recordings were of telephone calls Myers made to Swaffard from

jail, in which Myers told Swaffard that he had been interviewed concerning

Behrman’s death and denied any involvement 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 why a grandmother would falsely implicate

her grandson in a murder.

[48] On appeal, Myers argues that this was not a reasonable trial strategy, and that

trial counsel were required to make a greater effort to impeach Swaffard

precisely because her testimony was damaging 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 nature 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 established that a strategy

of limiting the jury’s exposure to Swaffard’s testimony and denying her the

opportunity to elaborate further thereon fell outside the wide range of

constitutionally competent assistance.

[49] In any event, Myers has not directed our attention to any particularly

persuasive impeachment evidence contained within the telephone recordings.

Although Myers denied any involvement in or knowledge of what happened to

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Berhman in the phone calls he made to Swaffard from the jail, he did so after

being made aware that he was a suspect in the case. Additionally, he

acknowledged during the conversations 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 the jury, and they do nothing to explain

why Swaffard would falsely implicate Myers. Moreover, in order to impeach

Swaffard with the recordings, trial counsel would have had to make the jury

aware that Myers’s own grandmother 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 counsel was ineffective for failing to object to what he

calls “religious vouching” for Swaffard’s credibility. Appellant’s Brief at 43.

Specifically, Swaffard was allowed to testify, albeit briefly and without great

detail, concerning her religious involvement, 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-fearing woman who wouldn’t lie.” Id. at 43.

Myers argues that the error 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 the State’s line of questioning regarding

Swaffard’s religious involvement on the basis of relevance. The trial court

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overruled the objection and explained that 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 objection 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 argues that “[v]ouching testimony invades

the province of the jury”, and he cites two cases, both of which address issues

concerning adult witnesses vouching for the truthfulness of victims in child

molesting cases. Id. The State, however, has directed 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 deceased, and that her hobbies included

reading, writing, and gardening. She testified further that she had completed

some studies at a Bible college and authored a children’s Bible school

curriculum. The State then asked Swaffard whether she attended a specific

church, and trial counsel objected to the line of questioning based on relevance.

The trial court overruled the objection, and Swaffard went on to testify that she

had attended Maple Grove Christian Church for nine years, that she wrote

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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, religious or otherwise. Although the

relevance of Swaffard’s religious involvement is certainly questionable (hence

trial counsel’s objection on that basis), her testimony contained 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 established a reasonable probability that

an objection on this basis would have been sustained. See Passwater v. State, 989

N.E.2d 766 (Ind. 2013) (explaining 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 Swaffard’s testimony in this regard.

Swaffard’s testimony concerning her involvement in church and religious

activities was short and not greatly detailed. 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 the absence of any motive to lie, we are

unconvinced that testimony concerning her religious involvement had a

significant impact on the jury’s assessment of her credibility.

[54] To the extent Myers argues that the prosecuting attorney’s remarks in closing

argument crossed the line into impermissible religious vouching, we note that

the State’s references to Swaffard’s religion were brief and vague at best. The

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State’s use of the common phrase “by the grace of God” conveyed nothing

about Swaffard’s religious beliefs, nor did 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 was 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 prayer” 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 overcome 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 unless she came forward. Think how

hard it would be for any grandmother 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 was arguing that it was very difficult for

Swaffard to come forward due to the impact her cooperation with the

investigation would have on her familial relationships, but that her conscience

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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 because of her religious beliefs.

[56] Moreover, Myers did not question trial counsel at the PCR hearing with respect

to his failure to object to these statements. Our Supreme Court has held that,

because counsel is presumed to be competent, “an action or omission that is

within the range of reasonable attorney behavior can only support a claim of

ineffective assistance if that presumption is overcome by specific evidence as to

the performance of the particular lawyer.” Morgan v. State, 755 N.E.2d 1070,

1074 (Ind. 2001). Under the circumstances presented here, trial counsel could

have concluded that objecting to the State’s vague, passing references to

Swaffard’s religious convictions would only draw more attention to them, and

Myers has presented no evidence 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 drawing unfavorable attention to it). In any

event, we are unconvinced that the complained-of statements had an impact on

the jury’s verdict. For these reasons, Myers has established neither deficient

performance nor prejudice stemming from counsel’s failure to object to so-

called religious vouching.

F.

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[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 parked in a “clearance” surrounded by a

wooded area. Trial Transcript at 1899. Goodman testified 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 identify places that Myers had taken her during their

relationship. She recognized one place as the wooded area where she and

Myers had argued in March 2000. This was the same area where Behrman’s

remains were discovered in 2003. Myers’s trial counsel conducted a relatively

short cross-examination, in which he asked 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 counsel should have impeached Goodman with

her prior, allegedly inconsistent statements about the site.

[58] At the PCR hearing, Patrick Baker testified that his strategy with respect to

Goodman’s cross-examination was similar to his strategy with Swaffard—he

sought to get Goodman off the witness stand as quickly as possible. He testified

further that Goodman “had a lot of information, 404(b) evidence, 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. He

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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 prior inconsistent statements, counsel

responded that he did not recall specifically, but that any strategies he had

devised changed during Goodman’s testimony because she displayed a palpable

demeanor of fear toward Myers.

[59] Myers dismisses trial counsel’s explanation of his strategy as unreasonable. He

asserts that counsel could have cross-examined Goodman concerning her prior

statements made to Detective Lang at the time she identified the site without

eliciting or opening the door to prejudicial and inadmissible testimony.

Further, Myers argues that fearful witnesses 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 second-guessing of trial counsel’s strategic decisions

concerning the nature and scope of cross-examination. Myers has not

established that his trial counsel’s strategy 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 simultaneously 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.

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[60] Moreover, Myers has again failed to establish the requisite prejudice. Much of

the impeachment evidence Myers argues should have been used during

Goodman’s cross-examination was explored through Detective Lang’s

testimony. For example, Myers argues 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 metal 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 recognized the area due to the sound of the

tires on the bridge. Although Detective Lang mentioned the humming sound

the tires made, he did not state that the sound is what triggered Goodman’s

memory. Instead, Detective Lang described the bridge and the humming

sound, and said it was at that point 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 where she interrupted my sentence and said,

this place looks more familiar. She didn’t say the bridge was more familiar, I

remember that sound. She just said this 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 specifically stated that it was not the

bridge that caused the area to be recognizable to her. Instead, she stated that

she recognized a nearby creek, woods, steep hills with rocks on them, and an

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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, raise the issue of Goodman’s recognition of

the bridge with Detective Lang. Specifically, trial counsel elicited testimony

from Detective Lang concerning the date the bridge was constructed, and he

asked Detective Lang whether it was true that Goodman recognized the bridge.

Detective Lang responded that Goodman did not recognize the bridge, and

instead recognized the area. Detective Lang’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 Goodman 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, she responded “[t]hat’s where he took

8

Myers also argues that trial should have used Detective Lang’s report to impeach his testimony that

Goodman recognized a clearing in the woods. According to Myers, “[Detective] Lang did not document

Goodman’s recognition of a cut-away in his report prepared contemporaneous 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 record in this case in search of support for Myers’s

contentions on appeal. Because Myers has not adequately supported this claim with citation 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 Goodman recognized the clearing in the woods. It is

unlikely that the possibility that Detective Lang omitted this fact in his report would have significantly

undermined their testimonies in this regard.

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me.” Trial Transcript at 1900. Our review of transcript reveals that trial counsel

did a more than adequate job of calling 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 . . . differentiate 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 testified that Goodman told him that the

area “look[ed] more familiar to [her] that anyplace we’ve been.” Id. at 2413.

Because the jury was presented with testimony that Goodman told Detective

Lang that the area looked familiar instead of positively identifying 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 behavior 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.

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2005) (explaining that “[a] party waives 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 light of other testimony suggesting that

Behrman may have been raped, 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 did not kiss Myers, she wanted to go home, and that

she was afraid, as well as her testimony that Myers refused to take her home,

and that they both got out of the car and stayed at the location for thirty to

forty-five minutes before Myers finally took her home. Myers’s argument on

this point is unconvincing. Goodman told the jury what happened once they

reached the clearing in the woods—she and 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 Behrman’s remains were discovered and to

explain why Goodman was still able to remember the location so vividly several

years later, and not to establish that Myers had a propensity to commit murder

or any other crime. Thus, the testimony did not violate Evidence Rule 404(b),

and Myers points to no danger of unfair prejudice aside from his unpersuasive

argument that the testimony left the jury with the impression that Goodman

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had been raped. See Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct. App. 2010)

(explaining that “[i]n assessing the admissibility of 404(b) evidence a trial court

must (1) determine that the evidence of other crimes, wrongs, or acts is relevant

to a matter at issue other than the defendant’s propensity to commit the charged

act and (2) balance the probative value of the evidence against its prejudicial

effect pursuant to Indiana Evidence Rule 403”), trans. denied. Thus, Myers has

not established a reasonable probability 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 deficiently by failing to object on that

basis.

G.

[67] Next, Myers argues that trial counsel were ineffective for failing to object to

testimony suggesting that Behrman had been raped. Specifically, forensic

pathologist Dr. Stephen Radentz testified 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 cross-

examination by Myers’s trial counsel, Dr. Radentz admitted that there was no

physical evidence that a rape had occurred. When questioned further by the

State, Dr. Radentz testified that, based on his training and experience, he

nevertheless believed that Berhman had been raped because the location and

condition of the remains were consistent with a rape-homicide. The State

referenced Dr. Radentz’s rape testimony in closing arguments.

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[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 court went on, however, to

conclude that the admission of the evidence did not amount to fundamental

error. Id. The court reasoned as follows:

We conclude that any error in the admission of Dr. Radentz’s rape

testimony did not substantially influence 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 surrounding the general disposal of human

remains. Furthermore, the trial court 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 testimony did not amount to fundamental error does not

necessarily preclude a finding that counsel’s failure to object 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, 9

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N.E.3d 663 (Ind. 2014). To satisfy the prejudice element of an ineffective

assistance of counsel claim, on the other hand, a defendant must establish that

there is a reasonable probability that the result of the proceeding would have

been different but for counsel’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 fundamental 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 the outcome of the trial. Accordingly,

Myers has not established a reasonable probability that the outcome of the trial

would have been different but for counsel’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 prejudicial 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, Myers’s aunt, testified that

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Myers sold her husband a shotgun at Myers’s father’s funeral in December

2000, several months after Behrman’s disappearance. Detective Lang testified

that he retrieved that gun from Bell. Although the record reveals that this gun,

as well as several others that Myers sold or distributed to relatives, had been

stolen from the barn near Myers’s trailer, 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 other 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]vidence of weapons possessed by a

defendant but not used in the crime for which the defendant 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 relevance because Detective

Lang’s grand jury testimony established that they were not stolen until

November 2000, well after Behrman’s disappearance, and therefore could not

have been the murder weapon.9 But Detective Lang’s testimony was hardly

9

Citing the same portion of the grand 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 supporting the proposition that the State would be somehow

bound by a statement it made in the midst of an ongoing grand jury investigation.

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conclusive on this point. Detective Lang testified as follows before the grand

jury:

I talked to Mr. Maher, [the owner of the barn], the burglary he

reported it November 2000, which would have been after the death

obviously of [Behrman]. I asked him 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 missing? 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 found 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 would have been gone.

Grand Jury Transcript at 5483-84.

[73] The post-conviction court found testimony concerning the guns relevant

because they (or at least one of them) could have been taken during a previous,

undiscovered entry. We agree. Unlike in Oldham v. State, here there was no

conclusive scientific proof that the weapons at issue were not used in the crime.

The fact that the owner of the barn believed that he would have noticed if the

guns were stolen prior to Behrman’s death goes to the weight 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.

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[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 access to shotguns like the one used to kill Behrman.

Samuel Myers, Myers’s brother, testified that he owned a twelve-gauge

shotgun, which he kept at his parents’ house. Samuel testified further that he

noticed that his shotgun was missing around August of 2000 and that he was

never able to locate the weapon. Myers’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, testified that Myers told him that he

hunted with a twelve-gauge shotgun. Accordingly, additional evidence to the

effect that Myers had access to and possession of such weapons was unlikely to

have had a significant impact on the outcome of the trial. Moreover, evidence

was presented that many people in the community possessed similar weapons

for hunting purposes and that Myers was himself a hunter. Thus, Myers’s

possession of such weapons, standing alone, was unlikely 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 Roell. As we have already noted, “in

order to prevail on a claim of ineffective assistance due to the failure to object,

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the defendant must show a reasonable probability 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 that he had been Myers’s cellmate in the Monroe County

Jail in May 2005. He testified further that 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 this statement, and Roell testified 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 provides, in pertinent part,

that relevant evidence may be excluded “if its probative value is substantially

outweighed by a danger of . . . unfair prejudice[.]” Ind. Evid. R. 403. “All

evidence that is relevant to a criminal prosecution 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 dangers that the jury will (1) substantially overestimate

the value of the evidence or (2) that the evidence will arouse or inflame the

passions or sympathies of the jury.” Duvall v. State, 978 N.E.2d 417, 428 (Ind.

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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 witness 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 trial 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]nconsistencies in witness testimony go to the

weight and credibility of the testimony, the resolution of which is within the

province of the trier of fact” (internal quotation omitted)). Roell’s testimony, if

credited by the trier of fact, was highly 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 which 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 decision 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 Forston recounted Roell’s statement to him, noting

specifically that Roell told him that Myers had stated that Behrman had been sexually assaulted and that “if

the dumb bitch would have done what [he] had 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.

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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 considered unfairly prejudicial because it

forces counsel make difficult strategic decisions with respect to its

impeachment. We decline to develop this argument on his behalf. Because

Myers has not satisfied his burden of establishing that an objection to Roell’s

testimony on the basis of Evidence Rule 403 would have been sustained, he has

consequently failed to establish deficient performance and resulting prejudice.

J.

[81] Next, Myers argues that his trial counsel were ineffective for failing to present

all available evidence tending to establish the guilt of Owings, Sowders-Evans,

and Clouse, and for failing to investigate and discover additional evidence to

that effect. This argument is nothing more than a request to substitute Myers’s

PCR counsel’s strategic judgment, informed 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 Owings 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 the back of the truck and wrapped her in

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plastic secured with bungee cords before placing the bicycle on top of her.

Owings went on to state that Clouse then 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. Neither Sowders-Evans nor

Clouse ever confessed to the police, and Owings recanted her 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 eighty-

six-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 testified that she had named Clouse and

Sowders-Evans because “[f]rom the very first time I was questioned, those were

the two names that I was supposedly 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 parts of her testimony were based on

places she had been with Sowders-Evans in the past. Owings testified further

that she had told police that the body was wrapped in plastic to explain why she

was unable to identify the type of clothing 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 her

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confession after Behrman’s remains were discovered because 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 prospects. 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 know something about the Behrman case,

and told her “[f]or the sake of your children, your family, and your own life, if

there is anything you can tell these people the time is NOW.” Id. He added

that he had gotten “the distinct impression you might not be punished for

anything to do with the Behrman case, and might get considerably better

treatment in these other matters, if you can help solve this.” Id. He also wrote

that Sowders-Evans, who was apparently also incarcerated, was trying to get

out of jail, and that if Sowders-Evans talked first, Owings would be “sunk.” Id.

[85] Myers argues that trial counsel were ineffective for failing to present certain

testimony and witnesses supporting the theory that Owings, Sowders-Evans,

and Clouse murdered Behrman. Trial counsel Hugh Baker, however, testified

that the defense team made a strategic decision not to pursue Owings’s

confession as its primary theory 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 Police had concluded was false was

not a good strategy, that is the Owings’ confession. She’d recanted

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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 reflect a reasonable strategic judgment. Myers, however,

asserts that trial counsel did, in fact, pursue the Owings theory at trial, and it

was therefore deficient performance not to present more evidence to support it.

[86] The record reveals that trial counsel pursued the Owings theory to some extent.

Hugh Baker elicited testimony from Owings on cross-examination that she had

discussed Behrman’s disappearance with 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 connection 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 recovered, and that it was possible (though unlikely)

for her to have been stabbed without leaving marks on her skeletal remains.

Trial counsel also elicited testimony from 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 mentioned in her confession. Trial counsel

also elicited testimony from Agent Dunn that he had received a tip that the

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body had been moved and presented evidence that Papakhian had reported

seeing Behrman on Harrell Road on the morning of her disappearance. In

closing arguments, Patrick Baker told the jury that there were two theories

leading away from Myers’s guilt and toward that of others—the Owings theory

and the Hollars theory.

[87] Essentially, Myers argues that trial counsel was obligated to take an all-or-

nothing approach to the Owings theory—either forego it entirely or present all

evidence supporting it. We are unpersuaded by this argument. 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 primary 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, trial 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 alive in the minds of the jurors, without

making the Owings theory the crux of Myers’s defense. Indeed, it appears to us

that trial counsel’s decision to pursue the Owings theory to only a limited extent

was actually quite shrewd because it prevented 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 wrapped in black plastic, while Owings had told the police

the plastic was off-white. Some versions of the story varied wildly from Owings’s confession to police. For

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elimination in the jurors’ minds of the possibility that 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’ credibility assessments. That strategy would

have been ruined if counsel had pursued the over-zealous course of action

advocated by Myers in this proceeding.” Appellee’s Brief at 50. Accordingly,

Myers has not established that trial counsel performed deficiently in this

regard.13

[88] We also conclude that Myers was not prejudiced by trial counsel’s decision not

to present additional evidence supporting the Owings theory. Myers makes no

argument that counsel failed to present any physical evidence—rather, he

claims that counsel should have presented testimony concerning incriminating

statements Owings, Clouse, and Sowders-Evans made to others, as well as

testimony corroborating parts of Owings’s confession and evidence that

Sowders-Evans fled the state 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, Sowders-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 failed to investigate and discover additional evidence

supporting the Owings theory, we conclude that the limitations 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 Sowders-

Evans 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, Myers has not directed our attention to any portion of the

record indicating that the jury was presented with evidence that any of the three had ever provided an alibi.

Thus, there was no need for counsel to impeach those alleged alibis.

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of the most powerful evidence 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 confession to go to the extreme effort of

draining part of Salt Creek, and that some corroborating physical evidence was

discovered as a result. Additionally, trial counsel presented evidence that

Papakhian had seen Behrman on Harrell Road on the date of her

disappearance. Moreover, much of the testimony Myers argues trial counsel

should have introduced might have been inadmissible,15 and much of the

evidence Myers argues corroborated Owings’s confession was shaky and could

easily be explained away by Owings’s testimony that she based parts of her

confession on things that 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 plastic, stabbing her in the chest, and

dumping her body in Salt Creek, the fact remains that the confession 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 affidavit stating that she remembered two girls coming to

her home after midnight and asking to use the phone “[s]ome time in 2002”. PCR Exhibit 134. Owings also

testified that Clouse ran a Jeep off Lampkins Ridge Road 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 later told Detective Lang that she had made up this portion

of the story because she was familiar with the road and knew that people are often run off the road there.

Poer also testified that the stretch of road was very dangerous. 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 evidence would have had a significant impact on the jury.

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not mesh with the physical 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, but 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 elicited 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 extremely 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 alleged accomplices, or their associates

could have managed to remove the body from the creek would have been

challenging, to say the least. Given the numerous, obvious weaknesses of the

Owings theory, we cannot conclude that the decision not to pursue the theory

to the extent Myers now advocates resulted in prejudice to Myers.

Consequently, his claim of ineffective assistance of counsel on this basis fails.

K.

[90] Finally, Myers claims that the cumulative effect of trial counsel’s errors

amounted to ineffective assistance entitling 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 nothing more than quarrels 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.

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State, 586 N.E.2d 847, 858 (Ind. 1992)) (alteration in original). Accordingly, we

are unpersuaded by Myers’s cumulative error argument.

2.

[91] Next, Myers argues that the State violated his due process rights by failing to

disclose all exculpatory evidence 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 was 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 reasonable 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 such information was available to the

defendant through the exercise of reasonable diligence. Id.

[92] Myers concedes that he cannot identify even one specific piece of evidence that

the State suppressed. Instead, he asserts that in the course of investigating

Myers’s post-conviction claims, post-conviction counsel received over 8,000

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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 discovery 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 State was not always meticulous in

documenting what materials it had provided. PCR Transcript at 525. Chief

Deputy Prosecutor Robert Cline stated that 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 the transfer. Additionally, Patrick Baker

testified that he reviewed boxes of investigative 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 court’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 establishing that the State

suppressed such evidence. Moreover, even if we assume the State failed to

disclose some evidence, without knowing 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 investigator, 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 that he read the reports in the property room, this in

no way establishes that he did not view 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 viewing of the police reports was not

documented in evidence logs likewise does not establish that he did not view the reports.

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begin to determine whether it was favorable to the defense and material to an

issue at trial, or merely cumulative of what was disclosed to Myers.

Additionally, Myers has made no attempt whatsoever to establish that the

allegedly suppressed investigative reports were not available to him through the

exercise of reasonable diligence. Essentially, Myers asks us to ignore his

evidentiary burden and presume not only that investigative reports were

suppressed, but also that somewhere among 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 misconduct by knowingly presenting false

evidence and perjured testimony. See Giglio v. United States, 405 U.S. 150, 153

(1972) (explaining that “deliberate deception 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 opportunity to present

freestanding claims that contend the original trial court committed error.”

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Wrinkles v. State, 749 N.E.2d 1179, 1187 n.3 (Ind. 2001). Rather, “‘[i]n post-

conviction proceedings, complaints that something went awry at trial are

generally cognizable only when they show deprivation of the right to effective

counsel or issues demonstrably 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 claims of trial error, and as such are

not cognizable in this PCR proceeding.

[96] Judgment affirmed.

Vaidik, C.J., and Robb, J., concur.

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