Anthony A. Parish v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be FILED

regarded as precedent or cited before any Sep 09 2020, 8:47 am

court except for the purpose of establishing

CLERK

the defense of res judicata, collateral Indiana Supreme Court

Court of Appeals

estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Lisa M. Johnson Curtis T. Hill, Jr.

Brownsburg, Indiana Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Anthony A. Parish, September 9, 2020

Appellant-Petitioner, Court of Appeals Case No.

20A-PC-44

v. Appeal from the Allen Superior

State of Indiana, Court

Appellee-Respondent The Honorable Frances C. Gull,

Judge

Trial Court Cause No.

02D05-1401-PC-18

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 1 of 28

[1] Anthony A. Parish appeals the denial of his petition for post-conviction relief.

Parish argues his trial counsel and appellate counsel rendered ineffective

assistance. We affirm.

Facts and Procedural History

[2] The underlying facts were stated in Parish’s direct appeal:

In the early morning hours of August 25, 2008, Fort Wayne

police found Antoine Woods shot to death in the front seat of his

car near “the Dove Shack” bar. Parish had been partying with

friends that night at a carwash near the bar and was seen in

possession of a .38 caliber handgun. In fact, Parish was

videotaped that night holding the handgun. Between 12:30 a.m.

and 12:45 a.m., Parish left with some of the people at the

carwash to go to the Dove Shack bar. Parish returned

approximately one hour later wearing a silver necklace with a

round charm that looked identical to a necklace that Woods

wore. Parish told his friends, “I did a petty murder.” Trial Tr. p.

177.

Nine days after the murder, on September 3, 2008, Fort Wayne

Police Officer Raquel Foster (“Officer Foster”) was in her patrol

car when she observed a vehicle make a turn without using a turn

signal. Officer Foster initiated a traffic stop of the car and,

although the windows of the car were darkly tinted, recognized

the driver as Parish because the driver’s side window was down.

Officer Foster immediately called for backup because Fort

Wayne police officers were on “high alert” that Parish was

armed. Parish was also a suspect in several shootings, including

the murder of Woods. And approximately two weeks prior to

the stop, an officer in the “gang unit” of the police department

had warned other officers that Parish had threatened to kill the

next police officer he encountered and claimed that his cocaine

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 2 of 28

or methamphetamine use would numb him to any pain if he got

into a shootout with the police.

Before any backup arrived, Officer Foster quickly approached the

car and told Parish to step out of the vehicle. Parish did not

immediately comply, but asked Officer Foster why she did not

want to see his driver’s license, vehicle registration, or proof of

insurance. Officer Foster told Parish that she knew who he was

and repeated her instructions to step out of the car. This time,

Parish slowly took off his seat belt and got out of his car. Officer

Foster took Parish to the back of his car and began a pat-down

search. Before Officer Foster could finish the pat-down search,

Officer Drummer arrived on the scene, handcuffed Parish, and

started another pat-down search.

While Parish was handcuffed and being patted down by Officer

Drummer, Officer Foster began a protective search of Parish’s

car. At the suppression hearing, Officer Foster explained that she

was specifically looking for a handgun because of the reports that

Parish was armed. Officer Foster looked under the seats,

between the seat and the console, and behind the seats, or as she

explained at the suppression hearing, “wherever I could reach.”

Suppression Tr. p. 11.

When Officer Foster attempted to open the glove box, it was

locked. She therefore “immediately” pulled the key from the

ignition and unlocked the glove box “without even thinking.” Id.

at 11-12. Inside, she found a Smith and Wesson revolver, a small

scale, and a plastic baggie with a leafy green substance that

Officer Foster identified as marijuana. Officer Foster explained

her reasons for the search of the glove box by stating that,

because she had pulled Parish over for a traffic stop, “I was just,

within his reach, anything, because if I put him back into that

car, anything that was within his reach.” Id. at 12.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 3 of 28

Officer Foster confiscated the handgun and contraband from the

glove box and informed Officer Drummer of what she had

found. They then secured Parish by placing him inside one of

the patrol cars. Officer Foster ran a check on Parish's license, the

vehicle registration, and the VIN number, which revealed no

problems. Despite the fact that she had just found Parish in

possession of handgun and marijuana, Officer Foster simply

issued a citation to Parish for failure to use a turn signal, put him

back into his car, and let him go.

Some time after the traffic stop, Parish told one of his

companions that the police had to let him go because “he had a

license,” but that the police had recovered “[t]he gun, .38

revolver.” Trial Tr. p. 178. Eventually, the bullets that were

recovered from the murder scene were found to ballistically

match the revolver Officer Foster took from Parish’s glove box.

*****

On January 8, 2009, four months after the traffic stop, the State

charged Parish with murder, felony murder, Class A felony

robbery resulting in serious bodily injury, and Class C felony

carrying a handgun without a license, with all charges stemming

from the shooting death of Antoine Woods. Parish filed a

motion to suppress on May 15, 2009, seeking to exclude the

evidence seized during the search of his car. The trial court held

a hearing on this motion on June 26, 2009, and denied the

motion at the conclusion of the hearing.

A jury trial was held on November 17 and 18, 2009. At the

conclusion of the trial, the jury found Parish guilty as charged.

At a sentencing hearing held on December 18, 2009, the trial

court vacated the felony murder conviction, as it “merged” with

the murder conviction, and entered judgment of conviction only

on the murder conviction. The trial court entered judgment of

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 4 of 28

conviction for robbery as a Class B felony based on the use of the

deadly weapon, and entered judgment of conviction for carrying

a handgun without a license as a Class A misdemeanor. The trial

court sentenced Parish to sixty-five years on the murder

conviction, twenty years on the robbery conviction, and one year

on the carrying a handgun without a license conviction, and

ordered all sentences to be served consecutively, for an aggregate

sentence of eighty-six years.

Parish v. State, 936 N.E.2d 346, 347-49 (Ind. Ct. App. 2010), trans. denied.

[3] On direct appeal, Parish alleged the trial court abused its discretion in admitting

the handgun found in Parish’s glovebox into evidence because Officer Foster

did not have a reasonable fear for her safety “that would justify a protective

search of the passenger compartment of the car[,]” id. at 349, and thus the

search violated the Fourth Amendment of the United States Constitution. 1 We

disagreed:

At the time of the traffic stop, Parish was a suspect in several

shootings, including a homicide, and the police were on high

alert that Parish was armed. Indeed, a “gang unit” officer had

warned other officers that Parish had threatened to kill the next

police officer he encountered and was even taking drugs in

preparation for a shootout with the police. In addition, when

Officer Foster first approached Parish’s car and told him to step

out of the vehicle, Parish did not immediately comply. He

instead asked Officer Foster why she did not want to see his

driver’s license and registration. Only when Officer Foster

explained to Parish that she knew who he was and again told

1

Parish did not argue on appeal that the search violated his rights against unlawful search and seizure under

Indiana Constitution Article 1, Section 11.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 5 of 28

him to step out of the car did he slowly take off his seat belt and

exit the car.

Under these facts and circumstances, a reasonably prudent

person in Officer Foster’s position would be warranted in the

belief that her safety was in danger. Officer Foster was therefore

justified in searching the passenger compartment of Parish’s car,

limited to those areas in which a weapon might be placed or

hidden.

Id. at 350.

[4] Parish filed a pro se petition for post-conviction relief on January 14, 2014, and

his petition was twice amended by counsel on March 22, 2018, and January 3,

2019. In his petition for post-conviction relief, Parish alleged his trial counsel,

John Bohdan, was ineffective at the jury trial by (1) failing to object to the

admission of a video and a still photograph from that same video, both of

which showed Parish holding a handgun; (2) eliciting damaging and prejudicial

hearsay from Officer Foster; (3) failing to impeach witness Rico Parrish

(“Rico”) with prior inconsistent statements; (4) failing to present reputation and

opinion evidence showing that Rico was not credible; and (5) failing to present

evidence that Rico received favorable treatment from the State in Rico’s

criminal cases.

[5] Parish also argued that an affidavit executed on December 14, 2018, by Rico, in

which he alleged his testimony at Parish’s jury trial was not entirely truthful,

constituted newly discovered evidence entitling Parish to a new trial. The

second portion of Parish’s post-conviction petition alleged that Bohdan, in his

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 6 of 28

role as appellate counsel, was ineffective for failing to challenge the search of

the locked glove box under Article 1, Section 11 of the Indiana Constitution.

The post-conviction court held an evidentiary hearing on the issues raised on

February 15, 2019, and denied Parish’s petition on December 31, 2019.

Discussion and Decision

[6] Post-conviction procedures do not constitute a super-appeal, and not all issues

are available to the petitioner. Williams v. State, 706 N.E.2d 149, 153 (Ind.

1999), reh’g denied, cert. denied 529 U.S. 1113 (2000). Where the postconviction

court has entered findings of fact and conclusions of law, “we accept the

findings of fact unless clearly erroneous, but accord no deference [to]

conclusions of law.” Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012),

trans. denied. We will thus reverse the postconviction court’s decision only if the

evidence is without conflict and leads to a conclusion opposite that reached by

the postconviction court. Id. at 581-82. Any challenge to a conviction must be

based on grounds enumerated within the post-conviction rules. Indiana Post-

Conviction Rule 1(1). Therefore, if an issue was known and available to the

petitioner but not raised on direct appeal, it must be considered waived. Rouster

v. State, 705 N.E.2d 999, 1003 (Ind. 1999), reh’g denied.

[7] A criminal defendant may raise a claim of ineffective assistance of counsel in a

postconviction relief petition. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.

2001), reh’g denied, cert. denied 537 U.S. 839 (2002). The Sixth Amendment to

the United States Constitution guarantees a defendant in a criminal prosecution

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 7 of 28

“the assistance of counsel for his defense,” U.S. Const., Am. VI, and this

guarantee requires counsel’s assistance be effective. Strickland v. Washington,

466 U.S. 668, 686, 104 S. Ct. 2052 (1984), reh’g denied.

1. Ineffective Assistance of Trial Counsel

[8] “[I]solated poor strategy, inexperience, or bad tactics does not necessarily

constitute ineffective assistance of counsel,” McCullough v. State, 973 N.E.2d 62,

74 (Ind. Ct. App. 2012), trans. denied, and there is a strong presumption that

counsel exercised reasonable professional judgment and rendered effective

assistance. Strickland, 466 U.S. at 690. Counsel’s decisions are assessed

objectively, in view of what a reasonable, minimally-competent attorney could

have chosen to do or not do in the circumstances; this inquiry should not

involve hindsight or evaluate counsel’s subjective opinions or beliefs.

Harrington v. Richter, 562 U.S. 86, 106-07 (2011).

[9] The petitioner must demonstrate ineffective assistance of trial counsel on both

grounds of the two-part test outlined by the United States Supreme Court in

Strickland: (1) counsel rendered deficient performance, meaning counsel’s

representation fell below an objective standard of reasonableness as gauged by

prevailing professional norms; and (2) counsel’s deficient performance

prejudiced the defendant, which gave rise to a reasonable probability that, “but

for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 670. A reasonable probability is “a

probability sufficient to undermine confidence in the outcome.” Id. at 694.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 8 of 28

Because both prongs of the Strickland test constitute “separate and independent

inquiries,” Landis v. State, 749 N.E.2d 1130, 1134 (Ind. 2001), failure to

demonstrate either deficient performance or prejudice is fatal to an ineffective-

assistance claim. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999), reh’g

denied. Accordingly, if it is more efficient to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice, that course should be followed.

Strickland, 466 U.S. at 697.

A. Admission of Video and Photograph into Evidence

[10] Parish first asserts Bohdan, in his role as trial counsel, was ineffective because

he did not object to the admission of a video showing Parish holding a handgun

on the night of Woods’ murder (“Exhibit 5”) and a still photograph taken from

the video (“Exhibit 6”). On appeal, Parish contends, “Parish was prejudiced

by counsel’s failure to object to exhibits 5 and 6. But for counsel’s failure to

object, the jury would not have seen irrelevant and prejudicial images of Parish

holding a handgun.” (Br. of Appellant at 26.) Thus, we must consider if there

existed reasonable probability that, “but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 670.

[11] During Parish’s trial, Rico testified that Parish spent most of the day with him

at a car wash on the day of Woods’ shooting. That day, Rico stated, he and

Parish made a rap video while at the car wash. Exhibit 5, later admitted into

evidence, did not have a time or date stamp but depicted a man in a gold

baseball cap holding a gun, and Rico testified the man in the video was Parish.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 9 of 28

Parish argues that had Bohdan objected to the admission of Exhibit 5 and

Exhibit 6 at trial, he would have succeeded at excluding them from evidence:

Rico Parrish testified that the video was made shortly before the

offense, and that the handgun shown in the video was “a .38

revolver.” Exhibits 5 and 6 were irrelevant and prejudicial.

There is no evidence that the handgun shown in those exhibits

was used in the crime, and there is no evidence that Rico was

qualified to identify a .38 revolver.

(Br. of Appellant at 26.) “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.” Myers v. State, 33 N.E.3d

1007, 1108 (Ind. Ct. App. 2015) (quoting Rogers v. State, 897 N.E.2d 955, 960

(Ind. Ct. App. 2008), trans. denied), reh’g denied, trans. denied. Furthermore,

whether the weapon to which the defendant had access was the same weapon

used in the offense “goes to the weight to be attributed to the evidence, not its

admissibility.” Id. See also Dickens v. State, 754 N.E.2d 1, 4 (Ind. 2001) (evidence

that defendant was seen carrying a gun two days before the charged murder

committed with a gun was relevant to prove opportunity, and probative value

outweighed prejudicial effect).

[12] Although Bohdan may have been able to object to Rico’s identification of the

type of gun shown in State’s Exhibit 5 and 6 because there was “no evidence

that Rico was familiar with firearms or qualified to identify them,” (Br. of

Appellant at 24), Parish has failed to demonstrated prejudice because Bohdan

could not have “successfully objected to the exhibits themselves.” (PCR App.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 10 of 28

Vol. II at 194.) See Ewing v. State, 719 N.E.2d 1221, 1225 (Ind. 1999)

(photographs depicting matters that a witness describes in testimony are

generally admissible).

[13] Further, the jury was eventually able to compare the weapon depicted in the

video and photograph with the firearm seized from Parish during his traffic stop

in order to assess for itself the similarity of the weapons. We agree with the

post-conviction court’s reasoning that:

The evidence of Petitioner’s possession of a gun, not shown to be

distinguishable in appearance from the murder weapon, at a time

shortly before the murder, was relevant to show that Petitioner

had access to a weapon of the type used to commit the murder;

and the high probative value of that evidence was not

outweighed by any possible prejudicial effect.

(PCR App. Vol. II at 194.) Furthermore, Indiana Rule of Evidence 404(b)

provides:

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident, provided

that upon request by the accused, the prosecution in a criminal

case shall provide reasonable notice in advance of trial, or during

trial if the court excuses pre-trial notice on good cause shown, of

the general nature of any such evidence it intends to introduce at

trial.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 11 of 28

Therefore, because an objection to the admission of the video and photograph

would likely not have been sustained, Parish has not shown he was prejudiced

by Bohdan’s decision to not object to the admission of the video and

photograph, which demonstrated Parish’s access to and knowledge of the

weapon used in the Woods’ murder. See Curtis v. State, 905 N.E.2d 410, 418

(Ind. Ct. App. 2009) (counsel is not rendered inadequate for failing to make a

futile objection; a defendant must show that had an objection been made the

court would have had no choice but to sustain it), trans. denied.

B. Officer Foster’s Testimony

[14] Parish next argues that Bohdan violated professional norms when he solicited

“damaging, prejudicial, hearsay testimony” from Officer Foster on cross-

examination. (Br. of Appellant at 8.) During trial, Officer Foster testified that

she stopped Parish for a traffic violation, conducted a search of his vehicle, and

discovered a loaded .38 revolver upon search of his locked glove box. During

that direct examination, the State did not ask Officer Foster to elaborate on her

reasons for searching the glove box or to discuss concerns about her safety.

Bohdan, however, on cross-examination of Officer Foster elicited the following

testimony:

Q: When you stopped the vehicle that day, you did so with the

belief that he may have some kind of firearm on or about his

person, is that correct?

A: No, not with that belief.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 12 of 28

Q: You did not?

A: No, not necessarily.

Q: Am I correct that in previous testimony that you told us that

you were acting on a belief that Mr. Parish was known to possess

handguns?

A: Mr. Parish was known to be armed with a weapon.

Q: And that belief was based on some tip that had been given to

another officer within your department, is that correct?

A: It was—he was known to be armed with a weapon because of

his involvements, because of other information. We had

received a tip from a fellow police officer.

(Prior Trial Tr. Vol. II. at 270.) This, Parish argues, “opened the door” for

Officer Foster to testify that: (1) she was “very scared” of Parish; (2) she knew

who he was and knew about his involvements; (3) she immediately called for

backup because she was afraid of Parish; (4) Parish was a suspect in several

shootings; (5) Parish was known to be armed; (6) Parish was suspected of being

involved in gang activity; and (7) Parish had threatened to shoot the next police

officer he encountered. (Br. of Appellant at 28.)

[15] Parish further alleges that Officer Foster’s testimony may have caused jurors to

make the “forbidden inference” that evidence of prior wrongful conduct

demonstrated Parish’s guilt in the present offense. (Id. at 16.) However,

Bohdan in his cross-examination of Officer Foster also elicited facts that

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 13 of 28

portrayed Parish in a positive light. For example, Parish was cooperative when

he was pulled over, he did not harm Officer Foster in any way, he had not

threatened her directly, Officer Foster’s knowledge of Parish’s threats toward

law enforcement stemmed from a tip she received from another officer, and the

weapon introduced into evidence had been removed from Parish’s locked glove

box during a search of his vehicle. (Prior Trial Tr. Vol. II. at 265-271.)

[16] We do not consider Officer Foster’s testimony highly prejudicial. Rather,

Bohdan’s strategy elicited testimony that potentially could have assisted Parish,

such as the emphasis on Parish’s cooperation with Officer Foster during the

traffic stop. Recognizing that “a valid defense strategy may involve the

admission of evidence that is objectionable,” Grinstead v. State, 845 N.E.2d

1027, 1034 (Ind. 2006), we agree that “although egregious errors may be

grounds for reversal, we do not second-guess strategic decisions requiring

reasonable professional judgment even if the strategy or tactic, in hindsight, did

not best serve the defendant’s interests.” State v. Moore, 678 N.E.2d 1258, 1261

(Ind. 1997), reh’g denied, cert. denied 523 U.S. 1079 (1998). Therefore, as

Bohdan’s decision to elicit such testimony from Officer Foster was a valid

strategy and Parish has not demonstrated he was prejudiced by that strategy, we

conclude Parish did not receive ineffective assistance of counsel in this regard.

C. State’s Witness Rico Parish

1. Impeachment by Opinion and Reputation

[17] Indiana Evidence Rule 608(a) provides:

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 14 of 28

A witness’s credibility may be attacked or supported by

testimony about the witness’s reputation for having a character

for truthfulness or untruthfulness, or by testimony in the form of

an opinion about that character. But evidence of truthful

character is admissible only after the witness’s character for

truthfulness has been attacked.

Testimony from a witness, regarding the witness’s opinion about another

witness’s character for truth and veracity or lack thereof, is admissible under

that rule. Ind. Evid. R. 608(a). Parish asserts “[t]rial counsel’s failure to

investigate and present available reputation and opinion evidence, regarding

Rico’s character for lack of truthfulness and veracity, violated prevailing

professional norms.” (Br. of Appellant at 31.) In support, Parish emphasizes

that Rico had a criminal history, that such people have reputations for being

dishonest, and that other people who know Rico also considered him to be

dishonest. Id. Parish’s argument primarily relies on his then-girlfriend

Dominique Gooden, who only knew Rico indirectly as Parish’s “cousin” and

who testified in support of Parish’s alibi on the day of Woods’ murder. (PCR

Ex. 34 at 36.) Gooden in her deposition stated that she “used to hear stuff

about Rico all the time.” (Id.) This, Parish argues, implies Rico’s propensity

toward untruthfulness and should have raised a red flag as to his credibility.

[18] However, Indiana Evidence Rule 602 explains that a witness who offers

testimony toward a particular matter, such as offering a personal perception of

Rico’s untruthfulness, must demonstrate that their opinion is based on some

personal knowledge the witness has about the subject. Parish has failed to

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 15 of 28

demonstrate prejudice because he has not shown a reasonable probability that

testimonies from eight witnesses, who all had varying degrees of knowledge of

Rico’s reputation, would have cast doubt on Parish’s guilt in light of other

incriminating evidence. Based thereon, we conclude Bohdan did not render

ineffective assistance of counsel based on this argument.

2. Impeachment by Prior Inconsistent Statement

[19] Parish claims that Bohdan could have impeached Rico’s trial testimony based

on Rico’s inconsistent statements because “a witness’s credibility can be

attacked on cross-examination with evidence of a prior inconsistent statement.”

Griffith v. State, 31 N.E.3d 965, 969-70 (Ind. 2015). Specifically, Parish points to

Rico’s trial testimony, during which Rico stated that he had seen and been with

Parish on the night of Woods’ murder before and after Parish left for the Dove

Shack bar. This testimony conflicted with Rico’s pre-trial statement to

Detective Lorna Russell, during which Rico told her he had received two calls

from Parish, before and after Woods’ murder; during the first call, Rico claimed

Parish told him he was going to the Dove Shack, and then during the second

call, Rico claimed Parish told him he had committed a “petty murder” and shot

a person inside a vehicle. (PCR Ex. 30.) Parish argues Bohdan should have

recognized this apparent contradiction and brought it to light during his cross-

examination of Rico, in order to cast doubt on Rico’s credibility.

[20] We agree with the post-conviction court that the affidavit simply demonstrates

inconsistency in Rico’s evidence about how he had come by his knowledge that

Parish had murdered Woods. (PCR App. Vol. II at 195.) Further, had Bohdan

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 16 of 28

brought the contradiction to light, the jury would still have heard that Parish

went to the Dove Shack that night, shot Woods inside a vehicle there, took and

wore Woods’ necklace, and then admitted to committing a “petty murder.”

(Prior Trial Tr. Vol. I at 171-173, 174-177.) We cannot say Parish was clearly

prejudiced, because the jury inevitably would have heard the substance of

Rico’s testimony regardless of the inconsistent means by which Rico acquired

the information from Parish. See Woodson v. State, 961 N.E.2d 1035, 1042 (Ind.

Ct. App. 2012) (the method of impeaching witnesses is generally a tactical

decision that does not amount to ineffective assistance), trans. denied.

3. Evidence of Alleged Bias

[21] Parish notes that two months after Woods’ murder, Rico was charged with

aggravated battery, battery, and criminal recklessness. (PCR Ex. 41.) The State

dismissed those charges on October 17, 2008, a few months prior to the date the

State charged Parish with the crimes of which he was convicted. Parish argues

that Bohdan was ineffective for failing to use these facts to claim that Rico was

lying in order to prevent the State from refiling the charges. The only evidence

pointing toward Rico’s fear of his charges being refiled is Rico’s 2018 affidavit

attempting to recant his trial testimony by saying that detectives promised him

that charges would be dismissed if he told them what they “wanted to hear”

and threatened to refile the charges unless he continued to say what they

“wanted to hear.” (PCR Ex. 40.)

[22] Parish also alleges that, even if the State did not threaten to refile Rico’s

charges, there was a reasonable degree of probability that Rico was biased in

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 17 of 28

favor of the State and that evidence of a benefit extended toward a witness by

the State in another case is relevant to demonstrating bias. As noted by the

post-conviction court, we find no evidence suggesting Rico received favorable

treatment from the State in exchange for his testimony or Rico was threatened

in any way to tailor his testimony favorably toward the prosecution in the

present case. (PCR App. Vol II at 196.) See Tolliver v. State, 922 N.E.2d 1272,

1286 (Ind. Ct. App. 2010) (trial court did not err in limiting cross-examination

of witnesses for bias on basis of alleged deals and charges not shown to have

existed, after trial court found no evidence or indication that charges were being

withheld or used in consideration for witnesses’ testimony). 2

2. Ineffective Assistance of Appellate Counsel

2

Parish notes that if a reviewing court finds more than one instance of deficient performance by counsel, the

court must then assess the resulting cumulative prejudice. As we did not hold that Parish was prejudiced

based on any alleged mistakes committed by Attorney Bohdan, we decline to re-assess Parish’s arguments for

cumulative prejudice. As explained by the post-conviction court:

If not for Attorney Bohdan’s claimed errors as raised in the Amended Petition, Petitioner

would still have been shown to have possessed a weapon that looked like the murder

weapon shortly before the murder (Conclusions of Law, 6-7). Rico Parrish would have

testified without contradiction that Petitioner admitted to a “petty murder” shortly

afterward, notwithstanding any questions about the circumstances under which Rico

Parrish heard the admission (id. at 9). Petitioner would still have been shown to have

possessed the murder weapon nine days after the murder. (Parish, 936 N.E.2d at 348),

and a claim under the Indiana Constitution would not have succeeded in excluding the

evidence that he had the murder weapon (Conclusions of Law, 16-20). Evidence would

still have shown that Petitioner possessed Antonine Woods’s necklace and medallion

after the murder, and that Petitioner’s grandmother displayed evasiveness and possible

dishonesty when the necklace and medallion were found in her purse, suggesting

knowledge that the discovery would incriminate Petitioner (Findings of Fact, 7, 18-19).

Finally, Petitioner would still have presented false alibi evidence (id, 20-22), for the

Amended Petition does not assert that Attorney Bohdan was ineffective in any way

regarding the alibi defense.

(PCR App. Vol. II at 198.) We are not persuaded that Attorney Bohdan provided ineffective assistance at

trial or that any alleged deficiencies resulting from his judgment and trial strategy resulted in irreparable

prejudice to Parish.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 18 of 28

[23] The standard for determining the effectiveness of counsel’s assistance is the

same for both trial and appellate counsel. Wine v. State, 147 N.E.3d 409, 421

(Ind. Ct. App. 2020). Appellate counsel’s failure to raise an issue that would

not have been successful does not amount to ineffective assistance. Mauricio v.

State, 652 N.E.2d 869, 872-873 (Ind. Ct. App. 1995), reh’g denied, trans. denied.

Appellate assistance will be considered deficient, however, if the omitted issue

was clearly stronger than the issues presented. Bieghler v. State, 690 N.E.2d 188,

193 (Ind. 1997), cert. denied 525 U.S. 1021 (1998). To prove prejudice in a claim

of ineffective assistance, a convicted defendant must show a reasonable

probability that the result of the proceeding would have been different if not for

counsel’s errors. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006).

A. Arguments Raised on Direct Appeal

[24] Parish appealed his conviction with the assistance of the same attorney who

represented him at trial, Bohdan. On direct appeal, Parish claimed the search

of his locked glove box during the traffic stop was improper under the Fourth

Amendment of the United States Constitution 3 and argued any evidence found

during that search should have been suppressed. Parish, 936 N.E.2d at 349.

Specifically, Parish acknowledged case law holding that an officer with a

reasonable suspicion that a motorist is dangerous and able to gain immediate

control of a weapon may conduct a protective search of the passenger

compartment of the vehicle without a warrant. Nonetheless, Parish claimed

3

On direct appeal, Parish did not assert an argument under Article 1, Section 11 of the Indiana Constitution.

Parish, 936 N.E.2d at 352 n.5.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 19 of 28

Officer Foster had no reasonable fear for her safety. Id. at 352. Thus, Parish

argued, the search of his car was a pretext for searching for evidence of other

crimes, particularly because Parish was not subsequently detained for the

weapon or contraband found in his locked glovebox. Id.

[25] During trial, on re-direct examination, Officer Foster testified without objection

that Parish was known to be armed with a handgun “because of his

involvements, because of other information,” such as “a tip from fellow police

officers.” (Prior Trial Tr. Vol. II at 270.) Upon further inquiry, Officer Foster

explained:

Mr. Parish had been listed as a suspect in a recent homicide, he’d

been listed as a suspect in several shootings. He was known to be

party armed [sic]. He had click [sic] or gang activity alerts, he

had recently made a threat to shoot the next police officer that he

had encountered, so yes, Mr. Godfrey, when I made that stop I

was very much afraid.

(Id. at 271.)

[26] On direct appeal, our court determined under the Fourth Amendment that a

“reasonably prudent person in Officer Foster’s position would be warranted in

the belief that her safety was in danger. Officer Foster was therefore justified in

searching the passenger compartment of Parish’s car, limited to those areas in

which a weapon might be placed or hidden.” Parish, 936 N.E.2d at 350.

Although the majority of our court affirmed Parish’s conviction and sentence,

Judge Riley dissented because she believed Officer Foster’s search of the locked

glove box was unsustainable under the Fourth Amendment. Id. at 353. Judge

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 20 of 28

Riley relied on Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009), which

limited an unwarranted search of a vehicle to only that portion of a passenger

compartment that was within a defendant’s reaching distance. Judge Riley’s

dissent emphasized that, in Gant, the passengers had been removed from the

car, handcuffed, and placed in separate police cars, such that the officer’s safety

could not have been threatened because the passengers were not able to access

any possible weapons in the car. She concluded that, in light of the parallels

between Gant and Parish, Officer Foster’s search was not constitutional. Id. at

354.

B. Analysis Under Article 1, Section 11 of Indiana Constitution

[27] Parish argues Bohdan, in his capacity as appellate counsel, was ineffective

because he did not argue Officer Foster’s foray into Parish’s glove box violated

Article 1, Section 11 of the Indiana Constitution, which deals with unlawful

search and seizure. Though the text of the search and seizure clause of the

Indiana Constitution is similar to the Fourth Amendment to the United States

Constitution, our Indiana Supreme Court has articulated a separate analysis.

Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). The State has the burden of

showing that, given the totality of the circumstances, the intrusion was

reasonable. Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001).

[28] “In determining reasonableness under [Article 1,] Section 11, we recognize that

Indiana citizens are concerned not only with personal privacy but also with

safety, security, and protection from crime.” Saffold v. State, 938 N.E.2d 837,

840 (Ind. Ct. App. 2010) (citations omitted), trans. denied. To determine

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 21 of 28

reasonableness, we consider: (1) the degree of concern, suspicion, or knowledge

that a violation has occurred, (2) the degree of intrusion the method of the

search or seizure imposes on the citizen’s ordinary activities, and (3) the extent

of law enforcement’s needs. Litchfield, 824 N.E.2d at 361.

[29] As an initial matter, the State claims Parish waived any argument under the

Indiana Constitution when he failed to make that argument on direct appeal.

The State also argues that, notwithstanding waiver, Parish has not

demonstrated that his appellate counsel was deficient in foregoing an argument

under Article 1, Section 11 because such argument “is not clearly and

undeniably stronger than his claim under the Fourth Amendment.” (Br. of

Appellee at 45.) We recognize, however, that Parish may still prevail in

proving ineffective assistance of counsel should it be demonstrated that, but for

counsel’s oversight, the unraised issue would have been successful and the

result of the proceeding would have been different but for counsel’s errors. See

Taylor, 840 N.E.2d at 331 (prejudice proven if the result of a proceeding would

have been different but for counsel’s errors).

1. Degree of Concern, Suspicion, or Knowledge

[30] Regarding the first Litchfield factor, the officer’s degree of concern, suspicion, or

knowledge, the post-conviction court found:

Officer Foster’s aim, after lawfully stopping Petitioner for

infractions, was to find any guns Petitioner might possess. The

degree of concern, suspicion, or knowledge that Petitioner would

have one or more guns was high, arising from reports of his

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 22 of 28

participation in several shootings and his reported threat to shoot

the next officer he encountered. Parish, 936 N.E.2d at 348.

(PCR App. Vol. II at 24.)

[31] The constitutionality of Officer Foster’s actions is supported by case law. In

Mitchell, our Indiana Supreme Court found “nothing unreasonable in permitting

an officer, who may have knowledge or suspicion of unrelated criminal activity

by the motorist, to nevertheless respond to an observed traffic violation,” even if

the officer was motivated by “furthering an unrelated criminal investigation.”

745 N.E.2d at 787. The court further explained that any unreasonable

subsequent search and seizure associated with the traffic stop “is most likely to

arise not in the routine police handling of the observed traffic violation, but in

the ensuing police investigatory conduct that may be excessive and unrelated to

the traffic law violation.” Id. A reasonable search under Article 1, Section 11

allows an officer “to briefly detain a motorist only as necessary to complete the

officer’s work related to the illegality for which the motorist was stopped.” Id.

at 788. Despite the defendant’s contention in Mitchell that his lengthy

detainment was unreasonable under Article 1, Section 11, the court held that

the detention “was not related to Mitchell’s stop sign violation but to the

ensuing discovery of the weapon and probable drugs in the possession of

Mitchell’s passenger, combined with [Officer] Boomershine’s knowledge

regarding the current and past narcotics investigations involving Mitchell and

Miller.” Id.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 23 of 28

[32] In the present case during the direct appeal proceedings, the appellate court

noted, and Parish’s counsel emphasized, that when Officer Foster first

approached Parish’s car and told him to step out of the vehicle, Parish did not

immediately comply, but instead inquired why Officer Foster did not first ask

for his driver’s license and registration. Parish, 936 N.E.2d at 350. Officer

Foster explained to Parish that she knew who he was and asked him to step out

of the car, rather than allow him to access his glove box and whatever

potentially dangerous items may have been in there. Id. Officer Foster likely

harbored a reasonably high suspicion that Parish was in possession of weapons

in connection to dangerous activity. Officer Foster’s degree of suspicion based

on her knowledge of Parish’s prior dangerous activities and thus her continued

investigation of his vehicle weighs in the State’s favor under the first Litchfield

factor.

2. Degree of Intrusion

[33] The second Litchfield factor, degree of intrusion, is evaluated from Parish’s point

of view and measured as the degree of intrusion into his ordinary activities. See

Litchfield, 824 N.E.2d at 360. The post-conviction court found that “the degree

of intrusion during the search of the glove box into [Parish’s] ordinary activities,

given that he was already lawfully stopped for infractions, was low to moderate

at most.” (PCR App. Vol II at 201.) The State argues the degree of additional

interruption resulting from the officer looking in Parish’s glove box was

minimal.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 24 of 28

[34] In Washburn v. State, 121 N.E.3d 657, 663 (Ind. Ct. App. 2019), trans. denied,

our court held that the degree of intrusion by a warrantless forced entry into a

locked box found in Washburn’s car was low, because:

Washburn was already the subject of a narcotics investigation, he

was in a car and not a home, a K-9 officer arrived at the scene

less than six minutes after Washburn was stopped, and the K-9

alerted to drugs in the safe only after Washburn had already been

arrested on an outstanding Kentucky warrant.

Id. at 663-664.

[35] The facts here are similar to those in Washburn. Officer Foster searched

Parish’s car based on suspicion that Parish was possibly armed and willing to

cause harm. Because his person and his car were already being searched, and

given that it took Officer Foster only a few seconds to take Parish’s keys from

the ignition to unlock the glove box, Officer Foster did not disturb to any great

extent the method in which Parish conducted his “ordinary activities.” We

agree with the post-conviction court’s assessment that the degree of intrusion by

Officer Foster was low.

3. Extent of Law Enforcement Needs

[36] As for the third factor, the extent of law enforcement needs, the post-conviction

court found:

The extent of law enforcement needs, in view of the important

need for officer safety, was high. Under the Indiana

Constitution, some intrusions upon privacy are tolerated, so long

as they are reasonably aimed toward concerns about safety,

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 25 of 28

security, and protection from crime. As Petitioner was only

stopped for infractions and was not under arrest, it was to be

expected that he would be released to go on his way at the

conclusion of the stop. At that point, if he had a gun, he would

be free to retrieve it from the glove box and use it to shoot the

officers he had just encountered, if he saw fit to carry out his

reported threat.

(PCR App. Vol. II at 201-2) (citations omitted).

[37] While Parish was seemingly cooperative during his brief detainment, after

releasing him back to his vehicle, Officer Foster could have reasonably

suspected that any weapon left in Parish’s car could be used against her or the

next officer he encountered. Our Indiana Supreme Court has explained that

reasonable suspicion exists “if the facts known to the officer, together with the

reasonable inferences arising therefrom, would cause an ordinarily prudent

person to believe that criminal activity has or is about to occur.” Baldwin v.

Reagan, 715 N.E.2d 332, 340 (Ind. 1999). Here, Officer Foster had knowledge

of Parish’s prior criminal activity and threat to shoot an officer. Thus, the

extent of law enforcement need was high. See D.F. v. State, 34 N.E.3d 686, 690

(Ind. Ct. App. 2015) (extent of law enforcement needs high when teenager

reported to have handgun in a public park), trans. denied.

[38] Under the totality of circumstances, Officer Foster’s search of Parish’s locked

glove box did not violate his rights against unlawful search and seizure under

Article 1, Section 11 of the Indiana Constitution. See State v. Crager, 113 N.E.3d

657, 665 (Ind. Ct. App. 2018) (officer’s degree of suspicion was high based on

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 26 of 28

active arrest warrant, level of intrusion was “not high” because locked

compartment in Crager’s backpack was easily accessible and opened with a key,

and extent of law enforcement needs were high because officer was concerned

about his safety; thus, based on the totality of the circumstances, the search was

lawful), trans. denied. Therefore, Bohdan did not render ineffective assistance of

counsel by neglecting to raise that argument, because it would not have

changed the outcome of Parish’s direct appeal. See Bieghler, 690 N.E.2d at 200

(appellate counsel not ineffective for failing to advance an argument on direct

appeal that would not have changed the outcome of the direct appeal).

Conclusion

[39] Parish has failed to demonstrate that Bohdan’s alleged ineffectiveness of

counsel during trial resulted in irreparable prejudice, given the existence of

other undisputed incriminating evidence. As for alleged ineffectiveness of

counsel on appeal, the totality of the circumstances, as evaluated under the

three Litchfield factors, demonstrate that the search of Parish’s locked glovebox

was necessary and permissible under Article 1, Section 11 of the Indiana

Constitution. Parish’s counsel therefore did not provide ineffective assistance

in failing to raise that claim under the broader protection from unwarranted

searches afforded by our Indiana Constitution. Accordingly, we affirm the

court’s denial of Parish’s post-conviction petition.

[40] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 27 of 28

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

Court of Appeals of Indiana | Memorandum Decision 20A-PC-44 | September 9, 2020 Page 28 of 28