Carter v. State

Attorney for Appellant

Hillary Bowe Oakes

Indianapolis, IN

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Arthur Thaddeus Perry

Deputy Attorney General

Indianapolis, IN

IN THE

INDIANA SUPREME COURT

JEFFREY V. CARTER,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

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) Supreme Court No.

) 49S00-9701-CR-23

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APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Ruth Reichard, Judge

Cause No. 49G02-9502-CF-19872

ON DIRECT APPEAL

November 16, 2000

SULLIVAN, Justice.

Defendant Jeffrey Carter was convicted of attempted murder and a

handgun violation following a melee in a “strip club.” We affirm, finding

among other things that medical records obtained after trial would not have

produced a different result; that claims of prosecutorial misconduct during

closing argument were waived for failure to object; and that what Carter

claims were mistakes by counsel were either not mistakes at all or the

result of reasonable strategic decisions.

We have jurisdiction over this appeal because the longest single

sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule

4(A)(7).

Background

The facts most favorable to the verdict show that Carter and several

friends patronized an Indianapolis “strip club” on February 9, 1995.

Carter and his friends got into a series of arguments with several of the

dancers. One of the club’s bouncers, Michael Jackson, came over to the

table. Carter then began to argue with Jackson. Kenton “Boo” Tarvin, who

was another bouncer and also a friend of Carter’s, came to the table to

calm the situation. Tarvin failed to do so and Jackson told Tarvin that

Carter and his friends were not welcome. Tarvin asked them to leave. The

group initially complied peacefully, but according to several witnesses

Carter drew a gun and fired as he was exiting the club. Bullets struck

Tarvin in the lower abdomen and Jackson in the buttocks. Tarvin was

severely injured in the shooting while Jackson was treated and released

from an Indianapolis hospital.

Carter was charged with two counts of attempted murder – one for

shooting Tarvin and one for shooting Jackson – and one count of carrying a

handgun without a license. He was also charged as a habitual offender. A

jury convicted Carter of attempted murder for the shooting of Jackson and

convicted him of the handgun charge, but acquitted Carter of the attempted

murder of Tarvin. In a separate proceeding, the jury found Carter to be a

habitual offender. The trial court sentenced Carter to 25 years on the

attempted murder conviction, which the court enhanced by 30 years because

of Carter’s habitual offender status. The judge also sentenced Carter to

one year for the handgun offense, to be served concurrently with his other

sentence.

Carter appealed the verdicts and the habitual offender determination

on several grounds, but subsequently obtained a stay of that appeal in

order to pursue post-conviction relief through the procedure set out in

Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977). The post-conviction

court denied Carter’s petition and he now seeks review of that decision as

well as errors claimed in his original appeal.

Additional facts will be set forth as necessary.

Discussion

I

Because Carter’s main arguments rest with those issues raised in his

post-conviction petition, we will deal with them first.

A

Carter’s primary contention is that two pieces of new evidence

require that he be granted a new trial. First, Carter points to medical

records compiled when Jackson was taken to an Indianapolis hospital and the

post-conviction analysis of these records by forensic scientist Dr. John

Pless. He claims that this evidence demonstrates that Jackson’s wound was

self-inflicted. Second, Carter argues that the testimony of one Ronald

Collins at the post-conviction relief hearing requires a new trial.

Collins, who was in prison at the time of the original trial and whose name

was never mentioned during that trial, testified that he was in fact the

shooter that night at the club.

The post-conviction court rejected these contentions and we will

review the decision of that court with great deference. See Williams v.

State, 724 N.E.2d 1070, 1076 (Ind. 2000) (noting that post-conviction

relief procedures present a defendant with a “narrow remedy” and not a

“super appeal”); Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999). In

the post-conviction court, Carter stood in the shoes of a civil plaintiff

and bore the burden of showing by a preponderance of evidence why his

conviction should be set aside. See id.; Johnson v. State, 693 N.E.2d 941,

945 (Ind. 1998). He therefore is appealing from a negative judgment on

these issues and “must show that the evidence as a whole ‘leads unerringly

and unmistakably to a conclusion opposite to that reached by the trial

court.’” Williams, 724 N.E.2d at 1076 (quoting Weatherford v. State, 619

N.E.2d 915, 917 (Ind.1993)). See also Johnson, 693 N.E.2d at 945 (“It is

only where the evidence is without conflict and leads to but one

conclusion, and the post-conviction court has reached the opposite

conclusion, that the decision will be disturbed as being contrary to law.”)

As the post-conviction court correctly noted, new evidence will

mandate a new trial only when the defendant demonstrates that: (1) the

evidence has been discovered since the trial; (2) it is material and

relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it

is not privileged or incompetent; (6) due diligence was used to discover it

in time for trial; (7) the evidence is worthy of credit; (8) it can be

produced upon a retrial of the case; and (9) it will probably produce a

different result at retrial. See Fox v. State, 568 N.E.2d. 1006, 1007

(Ind. 1991). This Court analyzes these nine factors with care, as “[t]he

basis for newly discovered evidence should be received with great caution

and the alleged new evidence carefully scrutinized.” Reed v. State, 508

N.E.2d 4, 6 (Ind. 1987).

As for the medical evidence, the post-conviction court found that the

records and testimony did not merit a new trial because they would not lead

to a different result at a retrial and thus did not meet the final element

of the Fox test. This conclusion – if it was error at all – was not so

obviously mistaken as to require reversal. See Williams, 724 N.E.2d at

1076. The medical records show that a bullet slashed through Jackson’s

left buttock diagonally from either top to bottom or bottom to top. Carter

uses these records to argue that the wound probably was suffered as Jackson

attempted to draw a gun from his back waistband.[1] In this vein, Dr.

Pless testified that there was a “probability – meaning greater than 51%”

(R.P-C.R. at 719) that the wound was self-inflicted.[2] However, the State

claims and the post-conviction court held that the jury could properly have

found that the wound was suffered as Jackson dove over a nearby bar, as all

parties agree he did around the time of the gunshots.[3] Carter counters

this argument by saying the evidence at trial shows that Jackson was shot

before he jumped over the bar.

Our review finds the evidence on this point to be in conflict.

Jackson’s own testimony was equivocal and his memory unclear. Carter has

not shown that “the evidence is without conflict and leads to but one

conclusion, and the post-conviction court has reached the opposite

conclusion.” Johnson, 693 N.E.2d at 945. He bore the burden of proof in

the post-conviction court. See id. There was evidence to support the post-

conviction court’s conclusion that the “probability” of a self-inflicted

wound that Dr. Pless pointed to was not enough to override the facts as

found by the jury.

The testimony of Ronald Collins is less problematic. The post-

conviction court found that this testimony failed the Fox standard because

it would likely be unavailable at a new trial and it was not worthy of

credit. Collins’s lack of credibility resolves the claim. Carter claims

that there is nothing in the record that would undercut Collins’s

credibility, but that assertion fails in several respects. First, we note

that the post-conviction court had the benefit of viewing Collins’s face

and his reactions during testimony. See State v. McCraney, 719 N.E.2d

1187, 1191 (Ind. 1999) (“Whether a witness’ testimony at a postconviction

hearing is worthy of credit is a factual determination to be made by the

trial judge who has the opportunity to see and hear the witness testify.”).

Second, the post-conviction court found that Collins never came forward

with his story until Carter’s case reached the post-conviction stage.

Finally, many of the witnesses testified at trial that Carter was with two

other men, while Collins describes a party totaling five men. These facts

justify the post-conviction court’s distrust of Collins’s credibility. As

this Court noted in McCraney, “[i]t is not within an appellate court’s

province to replace the trial court’s assessment of credibility with its

own,” but that is precisely what Carter asks us to do here. 719 N.E.2d at

1191.

B

Carter next claims that the prosecutor committed misconduct by not

disclosing Michael Jackson’s medical records during discovery.

Correspondingly, he argues that these records show that the prosecutor put

on perjured testimony because Michael Jackson testified that he was shot

twice, while the records apparently show only one wound. We reject both of

these claims of prosecutorial misconduct.

Carter argues that the medical records were withheld from him in

violation of both local discovery rules and the constitutional rule of

prosecutorial disclosure laid down in Brady v. Maryland, 373 U.S. 83

(1963). First, the local discovery rules require the prosecutor to

“disclose the following material and information within its possession or

control: [a]ny reports or statements of experts, made in connection with

the particular case, including results of physical or mental examinations.”

Marion County Crim. Div. R. 7(2)(a)(4) (emphasis added). The emphasized

portion of the rule was omitted from the petitioner’s brief, but this

language makes all the difference in this case. See Appellant’s Br. at 28;

Reply Br. at 10. The plain language of the rule requires disclosure of

records in the prosecutor’s “possession or control.” The records at issue

here were subpoenaed by Carter from the hospital where Jackson was treated

and Carter points to no evidence that the prosecutor ever possessed these

records, controlled them, or even knew about them until the post-conviction

stage. See Appellee’s Br. at 5; Reply Br. at 10. Carter bore the burden

of proof on this issue in the post-conviction court and failed to carry it.

See, e.g., Johnson, 693 N.E.2d at 945. This discovery rule, on its face,

is simply inapplicable.

Carter also challenges the constitutionality of what he claims was the

State’s nondisclosure of Johnson’s records. But absent any showing that

the State possessed or controlled these records, this challenge also fails.

See, e.g., Goudy v. State, 689 N.E.2d 686, 695 (Ind. 1997) (“The

prosecutor in a criminal case has a constitutional mandate to turn over

material exculpatory evidence in its possession.”) (emphasis added); United

States v. Whitehead, 176 F.3d 1030, 1036 (8th Cir. 1999) (“The government

need not disclose evidence that is, inter alia, available through other

sources or not in the possession of the prosecutor.”); Sanchez v. United

States, 50 F.3d 1448, 1453 (9th Cir. 1995) (“The government has no

obligation to produce information which it does not possess or of which it

is unaware.”). Cf. Conner v. State, 711 N.E.2d 1238, 1246 (Ind. 1999) (“The

Seventh Circuit Court of Appeals has consistently emphasized that the State

will not be found to have suppressed material information if that

information was available to a defendant through the exercise of reasonable

diligence.”), cert. denied, 121 S. Ct. 81 (2000).

Carter’s final argument in respect of these medical records is that

they demonstrate that Jackson perjured himself on the witness stand and

that the prosecutor thereby committed misconduct by introducing Jackson’s

testimony. The claimed perjury arose when Jackson testified that he had

suffered “two gunshot wounds,” (R. at 408) while the medical records

purportedly show that he suffered a single gunshot wound.

In Indiana, witnesses commit perjury only when they make “a false,

material statement under oath or affirmation, knowing the statement to be

false or not believing it to be true.” Ind. Code § 35-44-2-1. See also

Paschall v. State, 717 N.E.2d 1273, 1276 (Ind. Ct. App. 1999). Carter has

not shown with sufficient clarity either that Jackson’s testimony was in

fact false or that Jackson knew that it was false at the time.[4]

First, while Carter can point to several places in the medical records

that refer to a single wound, these records also contain several other

notations indicating that Jackson in fact suffered multiple wounds. (R.P-

C.R. at 656.) (referring to “GSW’s” and “wounds minimal bleeding”)

(emphasis added). These references show that Jackson’s testimony was not

necessarily false.

Second, there is no evidence that Jackson knew that he had suffered

only one wound and thus knowingly made a false statement on the stand. A

diagram in the medical records clearly shows two holes in Jackson’s buttock

– one where the bullet entered and one where it exited. It is likely that

Jackson was referring to these two holes when he referred to his two

wounds. This fact indicates that there was some confusion as to what was

meant by “wounds” in the testimony. Confused or mistaken testimony is not

perjury. See Timberlake v. State, 690 N.E.2d 243, 253 (Ind. 1997) (“While

the knowing use of perjured testimony may constitute prosecutorial

misconduct, contradictory or inconsistent testimony by a witness does not

constitute perjury.”), cert. denied, 525 U.S. 1073 (1999); Dunnuck v.

State, 644 N.E.2d 1275, 1280 (Ind. Ct. App. 1994) (“Confusion and

inconsistencies are insufficient to prove perjury.”), transfer denied. In

any event, Carter has not shown that Jackson’s statement was false or that

he knew of the falsity to the level of proof that would entitle us to upset

the determination of the post-conviction court. See, e.g., Ben-Yisrayl v.

State, 729 N.E.2d 102, 106 (Ind. 2000) (“Such a petitioner must show that

the evidence, taken as a whole, ‘leads unerringly and unmistakably to a

conclusion opposite to that reached by the trial court.’”) (quoting

Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993)).[5]

C

The last issue remaining in Carter’s post-conviction petition is his

claim of ineffective assistance of counsel. “To prevail on a claim of

ineffective assistance of counsel, a defendant must show that (i) defense

counsel’s representation fell below an objective standard of reasonableness

and (ii) there is a reasonable probability that the result of the

proceeding would have been different but for defense counsel’s inadequate

representation. We presume that counsel’s performance was adequate.”

Troutman v. State, 730 N.E.2d 149, 154 (Ind. 2000) (citations omitted).

See generally Strickland v. Washington, 466 U.S. 668 (1984).

Carter first argues that his trial counsel was ineffective for failing

to call several witnesses who would have testified that Carter did not have

or fire a gun on the night of the shooting. The post-conviction court

found that trial counsel did not call these witnesses because Carter had

told trial counsel that he in fact did fire a gun that night.[6] Trial

counsel testified that he wanted to avoid putting on perjured testimony.[7]

Carter contends that he never told trial counsel that he was the shooter.

However, the post-conviction court found trial counsel to be credible on

this point.

Second, Carter claims that trial counsel was ineffective for failing

to impeach Jackson with his statement to the police describing the shooter

as wearing glasses. While trial counsel could have conceivably impeached

Jackson’s identification of Carter (who did not wear glasses) with this

previous statement, the failure to do so does not raise a “reasonable

probability that the result of the proceeding would have been different.”

Troutman, 730 N.E.2d at 154. As the State pointed out in its brief, even

if Jackson was impeached as to his identification of Carter as the shooter,

three other witnesses identified Carter. Moreover, trial counsel did

subject Jackson to a vigorous cross-examination as to Jackson’s

identification of Carter and to his memory of the incident.

Third, Carter complains that trial counsel did not take measures to

reduce the possible prejudice from a photo array introduced by the State.

He claims that this array suggested he had a prior criminal record.

However, we agree with the post-conviction court that there is no

likelihood that the result of Carter’s trial would be any different if the

array had been more limited. The photos were apparently used when the

dancer who argued with Carter identified him to the police. As such, the

only information they communicate is that Carter had been arrested by

police – which would be obvious to the jury from his status as a criminal

defendant – and that the dancer identified him – which was independently

established through her own trial testimony.

Fourth, Carter claims that trial counsel was ineffective for not

moving for a mistrial when the court refused to dismiss a juror who heard

possibly prejudicial comments from another juror. During trial, Juror Tyler

noticed a neighbor in the audience whom she surmised was there to support

Carter. She felt intimidated by this apparent connection to Carter and was

excused from service by the court. She also told the court that she had

mentioned this connection to another juror, Juror Mills. Juror Mills told

the court that she could remain impartial and the court refused to excuse

her. Carter claims that trial counsel should have moved for a mistrial.

We agree with the post-conviction court that his failure to do so was not

ineffective assistance of counsel. The juror told the court that she would

remain impartial and the court admonished her that the audience member was

not, in fact, in any way tied to Carter. We find no evidence to suggest

that the juror did not properly carry out her duties.

Fifth, Carter claims that trial counsel should not have agreed to a

procedure that allowed the jury to view the trial exhibits in the courtroom

during deliberations with the court reporter – but not the defendant –

present.[8] First, even if Carter had a right to be present during the

view of the exhibits, trial counsel offered a very strong strategic reason

for waiving that right – Carter’s intoxication. The record shows that

Carter (who had been released on bail) became belligerent after the verdict

was delivered and the trial judge believed that he was intoxicated. Trial

counsel himself later testified that Carter was intoxicated. An

intoxicated Carter would have been of little use during the jury view of

the exhibits and he likely would have hurt his cause. Second, Carter

argues that his counsel should have objected to the court reporter’s

presence. Nothing in the record indicates that the court reporter

communicated with the jury and we find no basis for concluding that the

mere presence of a court official during the view of the exhibits could

have prejudiced Carter in any way.

Sixth, Carter claims that trial counsel was wrong to ask his own

witness about an otherwise inadmissible drug-related arrest. However,

Counsel is afforded considerable discretion in choosing strategy and

tactics, and we will accord that decision deference. . . . The

Strickland Court recognized that even the finest, most experienced

criminal defense attorneys may not agree on the ideal strategy or the

most effective way to represent a client. Furthermore, isolated

mistakes, poor strategy, inexperience, and instances of bad judgment

do not necessarily render representation ineffective.

State v. Holmes, 728 N.E.2d 164, 172 (Ind. 2000). Trial counsel made a

strategic decision to disclose this arrest in order to impress upon the

jurors that Carter was being as open as possible with them. We cannot say

that this was an impermissible trial tactic when so much of this case

rested on which witnesses the jurors felt were telling the truth.

Seventh, Carter claims he was prejudiced by a misstatement trial

counsel made during his closing argument. Specifically, trial counsel said

that “Mr. Carter says he just held it just like that.” (R. at 835.)

(emphasis added). Carter never testified at trial, but Jackson did testify

as to how Carter held the gun. This slip of the tongue did not deprive

Carter of his constitutional right to effective assistance of counsel. The

jury knew that Carter did not testify, and could piece together trial

counsel’s error from the fact that Jackson had testified as to how the gun

was held. Moreover, the context of the statement also reduced its

prejudicial effect. Immediately after making his slip, trial counsel said:

“These people are covering up. Mr. Jackson, Michael Jackson [is] covering

up . . . .” (R. at 835.) (emphasis added). This immediate reference to

Jackson linked the earlier slip to Jackson’s testimony and should have made

clear to the jury that trial counsel merely misspoke.

Eighth, Carter claims that trial counsel was ineffective for not

objecting to three statements made by the prosecutor during closing

arguments. The propriety and prejudicial effect of these statements will

be discussed infra. It suffices to say here that trial counsel made a

tactical decision not to object to any of these statements. Again, counsel

is free to make reasonable strategic decisions. See Holmes, 728 N.E.2d at

172. It was reasonable for trial counsel to decide that objecting to these

comments in the prosecutor’s rebuttal argument would only agitate the jury

when it was so close to getting the case.

Ninth, Carter claims his counsel was ineffective for failing to

discover Jackson’s medical records prior to trial. As discussed supra,

these records would not have altered the verdict at trial.

We affirm the post-conviction court’s findings that none of these

nine specific situations, either individually or cumulatively, deprived

Carter of his constitutional right to the effective assistance of counsel.

II

There remain three issues from Carter’s direct appeal that were not

resolved in the review of his post-conviction proceedings.

A

As previously mentioned, Carter argues that three statements in the

prosecutor’s closing argument amounted to prosecutorial misconduct.[9]

First, he contends that the prosecutor improperly invoked sympathy for the

victim: “But you look Boo Tarvin in the face, too, and you tell him your

four buddies or the four people that the State called were all a bunch of

liars.” (R. at 845.) Second, Carter maintains that the prosecutor

impermissibly commented on the defense attorney’s function: “Defense

attorneys get paid to confuse. And make you so confused and then stand up

at the end and yell reasonable doubt, reasonable doubt.” (R. at 840.)

Finally, Carter claims the prosecutor referred to matters outside the

record when he said:

Ladies and gentlemen, I could have brought you forty witnesses but

they would have been like everybody else. These people are in here.

They’re drunk. They had no idea what’s going on. They’re watching the

dancers on the stage ‘cause that’s what they came in there to do.

There’s always arguments in there. They’re not paying attention.

They’re in there to enjoy their selves. Could have brought you forty

of those witnesses.

(R. at 847-48.)

Carter did not object to any of these comments during the trial and

therefore any error is waived. See Ind. Rule of Ev. 103(a); see also

Charlton v. State, 702 N.E.2d 1045, 1051 (Ind. 1998) (“Ordinarily, a

failure to object would cause [prosecutorial misconduct during closing

argument] to be waived.”); Wiggins v. State, 727 N.E.2d 1, 10 (Ind. Ct.

App. 2000) (“Before we will consider a claim of prosecutorial misconduct,

the defendant must have made timely objection to alleged misconduct at

trial to secure an issue for review, and failure to so object waives the

issue.”), transfer denied.

Once waived, an issue will warrant reversal only if it amounts to

fundamental error. See Borders v. State, 688 N.E.2d 874, 882 (Ind.1997).

“Fundamental error is a substantial blatant violation of basic principles

rendering the trial unfair to the defendant and, thereby, depriving the

defendant of fundamental due process. The error must be so prejudicial to

the rights of a defendant as to make a fair trial impossible.” Charlton,

702 N.E.2d at 1051 (citations omitted). See also Mitchell v. State, 726

N.E.2d 1228, 1236 (Ind. 2000) (“The fundamental error exception is

extremely narrow.”).

Even assuming the first two statements in the prosecutor’s closing

amount to misconduct, the harm done to Carter does not rise to the level of

fundamental error. Several Indiana cases have rejected fundamental error

claims with respect to closing arguments more extreme than those made this

case. See, e.g., Charlton, 702 N.E.2d at 1051; Etienne v. State, 716

N.E.2d 457, 461-62 (Ind. 1999); Roach v. State, 695 N.E.2d 934, 942-43

(Ind. 1998); Robinson v. State, 693 N.E.2d 548, 551-52 (Ind. 1998); and

Turnbow v. State, 637 N.E.2d 1329, 1333 (Ind. Ct. App. 1994). The same

conclusion holds here.

As for the third contested statement, Carter claims that the trial

court committed fundamental error by allowing the prosecutor to refer to

witnesses he did not call. We reject this contention. Reading the

statement in context, it is clear that the comment is a reply to a comment

in the defense counsel’s closing argument: “[T]he State could have called

as many witnesses as they wanted to testify . . . but how many did they

bring in and who did they bring in?” (R. at 823.) The prosecutor’s

statement is clearly aimed at rebutting this attack and explaining that any

other possible witnesses would bring little to the case.

B

Carter next argues that the trial court committed fundamental error by

allowing the court reporter to be present when the jury viewed the exhibits

in the courtroom during deliberations. There is simply no authority that

makes the procedure the trial judge followed error, let alone fundamental

error.

C

Finally, Carter contends that there is insufficient evidence to

support the enhancement of his sentence based on his habitual offender

status. Specifically, he claims the State failed to prove one of his prior

felonies. We reject this claim. The disputed previous conviction arises

from a four-count information filed against Carter on July 13, 1987.

Carter was later sentenced on a “Count Five” despite the fact that the

original information only contained four counts.[10] Carter argues that

because there is no evidence of a Count Five ever being filed, he could not

possibly be convicted on that count. However, no matter what the

information says, Carter was in fact sentenced to two years for “Count

Five.” The habitual offender statute does not contemplate enhancement of a

penalty for the mere charge of a felony, but looks for an actual

conviction. See Ind. Code § 35-50-2-8 (“The state may seek to have a

person sentenced as a habitual offender for any felony by alleging, on a

page separate from the rest of the charging instrument, that the person has

accumulated two (2) prior unrelated felony convictions.”) (emphasis added).

Here the State has shown that at the very least, Carter was sentenced to

two years in prison, which qualifies as a felony sentence. See id. § 35-50-

2-1(b) (“As used in this chapter, ‘felony conviction’ means a conviction,

in any jurisdiction at any time, with respect to which the convicted person

might have been imprisoned for more than one (1) year.”) There was

sufficient evidence of a prior unrelated felony conviction.

Conclusion

We affirm both the decision of the post-conviction court and the

conviction and sentence in the original trial court.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

-----------------------

[1] Jackson denied at trial ever attempting to draw a gun.

[2] Dr. Pless refused to characterize his testimony as an “opinion”

but deemed it instead a “good guess” or a “theory.” (R.P-C.R. at 714-15.)

[3] Even Dr. Pless conceded that Jackson’s wound could have been

suffered during a jump over the bar, as Jackson would have been in the

right position at the time. It is also worthy of note that neither party

presented any evidence of the type of burn that is typical of the sort of

close-range gunshot that Carter suggests occurred. The only evidence on

point is Dr. Pless’s testimony that “the range of fire is something I can’t

give an opinion on because there’s no evidence of any close range.” (R.P-

C.R. at 716.) (emphasis added).

[4] While we need not reach this issue, it should also be noted that

Carter has failed to show any prejudice from this purported perjury, let

alone the “grave peril” necessary to overturn a conviction for alleged

prosecutorial misconduct. See Dobbins v. State 721 N.E.2d 867, 874 (Ind.

1999) (“When evaluating a prosecutorial misconduct claim, we must first

determine whether the prosecutor engaged in misconduct and then determine

whether the misconduct placed the defendant in a position of grave peril so

as to have a probable persuasive effect on the jury’s decision.”); see also

Paschall v. State, 717 N.E.2d 1273, 1276 (Ind. Ct. App. 1999) (upholding

conviction in face of prosecutorial misconduct despite use of allegedly

perjured testimony).

[5] Carter has also failed to show that the prosecutor knew that the

testimony was false, especially since, as we noted supra, the prosecutor

did not even have possession of these records at the time of trial. See

Wallace v. State, 474 N.E.2d 1006, 1008 (Ind. 1985) (“The knowing use of

perjured testimony is fundamentally unfair and a conviction obtained by the

use of such testimony will not be upheld. A conviction obtained through the

use of false testimony must fall where the State, knowing the testimony to

be false, either solicits such testimony or allows it to go uncorrected

when it appears.”) (citations omitted) (emphasis added); see also

Timberlake v. State, 690 N.E.2d 243, 253 (Ind. 1997), cert. denied, 525

U.S. 1073 (1999).

[6] Carter sought to have trial counsel’s testimony excluded from the

post-conviction court on the basis of the attorney-client privilege and now

asks us to ignore the testimony as well. However, as the post-conviction

court correctly noted, a defendant waives the attorney-client privilege

when he files a petition for post-conviction relief on the grounds of

ineffective assistance of counsel. “When the professional integrity of an

attorney is attacked by a client, that attorney has a right to defend his

conduct as counsel.” Logston v. State, 266 Ind. 395, 399, 363 N.E.2d 975,

977 (Ind. 1977) (citations omitted) (upholding conviction on post-

conviction review). The waiver holds even though trial counsel allegedly

spoke with a prosecutor prior to his testimony, as Carter had filed his

petition by that point and his privilege was therefore already waived.

[7] Moreover, trial counsel presented strategic reasons for not

calling many of these same witnesses, finding most of them to not be

credible. The post-conviction court found trial counsel’s explanation to be

credible.

[8] This procedure will also be discussed infra.

[9] To prove prosecutorial misconduct, a defendant must show that “the

prosecutor in fact engaged in misconduct” and then demonstrate that “the

misconduct, under all the circumstances, ‘placed [the defendant] in a

position of grave peril to which he should not have been subjected.’”

Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 848 (Ind. 1976)

(citations omitted). See also Reid v. State, 719 N.E.2d 451, 458 (Ind. Ct.

App. 1999) (“When we review claims of prosecutorial misconduct, we consider

first whether the prosecutor committed misconduct and second, whether the

alleged misconduct placed the defendant in grave peril.”), cert. denied,

2000 WL 1337244 (Nov. 13, 2000).

[10] One of the original four counts was later subdivided into two

parts. The prosecutor argued during the habitual offender phase that the

trial court’s computer system could not register the subdivided count and

treated each division as a separate count. Count Four – a felony criminal

recklessness charge - then became Count Five.