Anthony A. Parish v. State of Indiana (mem. dec.) ( 2020 )

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.
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[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
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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.
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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
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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.
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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
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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
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“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.
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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.
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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.
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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.
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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.
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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
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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:
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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
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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
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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
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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.
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[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.
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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
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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
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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
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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.
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[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.
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[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,
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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
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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.
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Robb, J., and Vaidik, J., concur.
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