Opinion · Indiana Court of Appeals
Ian McCullough v. State of Indiana
973 N.E.2d 62
- Type
- Opinion
- Court
- Indiana Court of Appeals
- Jurisdiction
- Indiana
- Date
- 2012-08-27
- Topic
- litigation
How later courts describe this case
- holding trial counsel’s failure to call certain witness was explained at PCR hearing testimony as being contrary to chosen defense strategy
- “[I]n the context of an ineffective assistance claim, a decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess.”
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UpLaw has not yet analyzed Ian McCullough v. State of Indiana. The absence of a flag is not a finding that it is good law.
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FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
F. THOMAS SCHORNHORST GREGORY F. ZOELLER
Oxford, Mississippi Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
FILED
Indianapolis, Indiana
Aug 27 2012, 9:47 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
IAN MCCULLOUGH, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1106-PC-571
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark D. Stoner, Judge
The Honorable Jeffrey L. Marchal, Commissioner
Cause No. 49G06-0602-PC-36340
August 27, 2012
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary and Issue
Ian McCullough was convicted of two counts of class A felony child molesting
and one count of class C felony child molesting. His convictions were affirmed on direct
appeal, and he then sought post-conviction relief (“PCR”), arguing that he received
ineffective assistance of trial counsel. The post-conviction court denied McCullough‟s
PCR petition.
On appeal, McCullough argues that his trial counsel was ineffective (1) in offering
and failing to object to evidence of prior uncharged misconduct and failing to object to
the prosecutor‟s references to that misconduct; (2) in failing to adequately cross-examine
the State‟s investigators; (3) in failing to make an offer of proof when the trial court
excluded his expert‟s testimony; (4) in failing to present expert evidence of child
memory; (5) in failing to present certain evidence; and (6) in failing to tender or request
the jury instruction mandated by the Protected Person Statute. We conclude that
McCullough has failed to carry his burden to show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that reached by the post-conviction
court. Therefore, we affirm the post-conviction court‟s judgment.1
Facts and Procedural History
The facts underlying McCullough‟s convictions were set forth in the memorandum
decision issued on direct appeal as follows:
1
We held oral argument on May 1, 2012, in Indianapolis. We commend counsel for their able
advocacy.
2
L.D. (DOB 1/22/98) is the daughter of Sarah Calvert and Jason Dees.
When L.D. was approximately one year old, [Sarah] began dating
McCullough, and eventually moved in with him. During the next few
years, the couple had two children together, E.M. (DOB 5/14/2000) and
M.M. (DOB 6/4/2002). However, in 2003 or 2004, the couple separated.
Thereafter, L.D. lived with her mother, [Sarah], in Greenfield, while E.M.
and M.M. lived with their father, McCullough, in Indianapolis. On
weekends, L.D. would visit with McCullough, whom she referred to as
“daddy,” and her half-sisters. When she stayed overnight at McCullough‟s
home, L.D. slept in bed with him or in a different room with E.M. and
M.M.
At some time before L.D. entered pre-school, McCullough touched
her vagina with his fingers. McCullough touched L.D. inappropriately
more than once over the next few years. Twice he touched her vagina with
his tongue while they were in his bed at his home. Another time,
McCullough touched L.D.‟s vagina with his finger while she sat in the seat
next to him in his vehicle. In the fall [of] 2005, McCullough inserted his
finger in L.D.‟s vagina. McCullough referred to his actions as a “tickle”
and instructed L.D. not to tell anyone lest he get in trouble.
In early December 2005, Judy Calvert (“Judy”), L.D.‟s maternal
grandmother, with whom she was living at the time, said that L.D. would
be visiting with McCullough for the weekend. L.D. became upset, and
questioned if she had to go. Moved by L.D.‟s tears and pleading, Judy told
her she did not have to go but asked why L.D. was reluctant. L.D. replied
that she had been masturbating, that she had taught E.M. how to do it, and
that she worried that it was wrong. When Judy attempted to assure L.D.
that her behavior was not bad per se, L.D. inquired whether it was okay for
McCullough to be touching her private parts. Shaking and crying, L.D.
confided in her grandmother that McCullough would stop if L.D. asked him
to; L.D. made Judy promise not to tell anyone else.
Upon [Sarah‟s] return home, Judy immediately shared L.D.‟s
statements with her, and they took L.D. to Riley Children‟s Hospital that
same night. Riley employees and/or [Sarah] reported the allegations to
Child Protective Services (“CPS”).
McCullough v. State, No. 49A02-0805-CR-411, slip op. at 2-4 (Ind. Ct. App. Jan. 13,
2009) (citations omitted).
3
On February 13, 2006, Diane Bowers, a forensic child interviewer with the Child
Advocacy Center, conducted a videotaped interview of L.D. during which L.D. used
anatomical drawings and her hands to explain what McCullough did (“the Bowers
Interview”). State‟s Trial Ex. 1. During the interview, L.D. told Bowers about an
incident that occurred when she was three years old and lived in California (“the
California Claim”). L.D. said that while she was sleeping in bed with Sarah and
McCullough, McCullough got on top of her, “his private” touched her “you know what,”
and it went inside “a lot.” State‟s Trial Ex. 2 at 66-69 (transcription of the Bowers
Interview). L.D. also stated that she told Sarah that “Daddy‟s pee was tickling mine,”
and that Sarah “just screamed … you had sex?” at McCullough. Id. at 69. L.D. did not
know whether McCullough responded.
Lucita Exom-Pope, an investigator with the Indiana Department of Child Services,
was monitoring the interview. Later that day, Exom-Pope interviewed Sarah and asked
her about the California Claim. Her report (“the Exom-Pope Report”) states in relevant
part as follows:
Sarah was asked when living in California if [L.D.] ever said anything to
her about being touched by [McCullough], Sarah stated [L.D.] told her the
neighbor‟s son had touched her while in California. She stated that boy
was 6 years old. She also stated [L.D.] was 3 or 4 at the time and was not
able to speak clearly. She stated she yelled at the neighbor‟s father not at
[McCullough] about touching [L.D.].
Petitioner‟s Ex. 4 at 10.
4
Indiana Police Detective Jan Faber was assigned to investigate L.D.‟s allegations.
Detective Faber watched the Bowers Interview and interviewed Sarah and Judy.2
Detective Faber did not read the Exom-Pope Report. In February 2006, the State charged
McCullough with two counts of class A felony child molesting and one count of class C
felony child molesting, for offenses that occurred between August 1 and December 3,
2005.
After charging McCullough in the instant case, the State charged McCullough in a
separate cause with molesting L.D.‟s half-sister, E.M. PCR Tr. at 99. Trial counsel
represented McCullough in this cause as well. Id. At some point, E.M. recanted the
accusation, and the case was dismissed in December 2007 about a week before the trial in
the instant case. Id. at 179-80.
Trial counsel attempted to depose Sarah as part of his preparation for trial but was
unable to do so. On January 2, 2007, the trial court ordered the State to contact Sarah and
have her contact McCullough‟s counsel no later than January 9, 2007, to schedule and
attend a deposition and that if Sarah failed to do so, her testimony would be excluded.
Petitioner‟s Ex. 2 at 169. Sarah did not contact trial counsel.
The trial court held hearings on August 17 and September 6, 2006, on the
admissibility of the Bowers Interview and Judy‟s hearsay testimony regarding L.D.‟s
disclosure to her in December 2005. The trial court found both sufficiently reliable to be
admitted into evidence.
2
She also watched another recorded interview of L.D. that was not admitted at trial.
5
A jury trial was held on December 17 and 18, 2007. At the outset, McCullough‟s
counsel filed a motion in limine requesting that the trial court enforce its previous order
and exclude Sarah‟s testimony, which the trial court granted. Petitioner‟s Ex. 2 at 340.
Also, the State sought to admit the Bowers Interview, but, in contrast to the recording
submitted at the admissibility hearing, L.D.‟s comments regarding the California Claim
had been redacted. McCullough‟s counsel objected to the redaction and argued for the
entire Bowers Interview to be admitted into evidence. Appellant‟s App. at 56 (¶ 53);
Trial Tr. at 305-09, 317. The State argued that L.D.‟s statements pertaining to the
California Claim violated Indiana Evidence Rule 4123 and that “[i]t is the right of the
victim not to have to testify about those prior incidents of conduct.” Trial Tr. at 311.
The trial court stated,
[H]ow in the world does the, the fact that – I‟m, I‟m just having really a
hard time. The victim makes an allegation that when she was three that she
had sex with this person. How in the world does that have anything
negative, a negative impact on the victim? It strikes me as being incredibly
bad for the defendant unless the State’s concern is that this is a prior
example of a false allegation. And if it is, then it is absolutely relevant.
Id. at 312 (emphasis added). The prosecutor argued that “what we believe the Defense
wants to do with this allegation is to bring it in so that they can prove that it‟s
demonstrably false within the context of the trial, which is not appropriate.” Id. at 314-
15. The trial court responded,
3
Indiana Evidence Rule 412 provides in relevant part that in a prosecution for a sex crime,
evidence of the victim‟s past sexual conduct is inadmissible except in certain circumstances such as
evidence of the victim‟s sexual conduct with the defendant but then only upon written motion and a
hearing held thereon.
6
It strikes me as being extremely prejudicial on behalf, to the defendant, not
to the victim whatsoever. And so I‟m, I‟m just really having a problem
there unless the reason why the State doesn‟t want it there is simply
because it gets into the point of previous false allegations, which strikes me
as that‟s the very essence of what these cases are all about.
Id. at 318-19. The trial court ultimately admitted the entire Bowers Interview.
In beginning his opening argument, McCullough‟s counsel stated,
[L.D.] said the words that the State just recited to you, but those aren‟t the
only words she said. The evidence is going to show you that [L.D.] said a
lot of things that just don‟t make sense. [The] State left out that [L.D.] also
claimed when she was three [McCullough] put his penis inside her. A lot
of his penis inside her. That she couldn‟t feel that, that she told her mother,
and her mother just quizzically asked, you had sex? And nothing else
followed. [L.D.] said that, too.
Id. at 550-51. Trial counsel also argued that the “internal inconsistencies” in L.D.‟s
statements “don‟t make sense.” Id. at 551.
During its case-in-chief, the State presented the testimony of L.D., Judy, Bowers,
and Detective Faber. During direct examination of L.D., the prosecutor asked whether
she remembered what grade she was in when McCullough touched her private with his
tongue and fingers. L.D. answered, “Kindergarten, first, and second, and pre-school.”
Id. at 564. McCullough‟s trial counsel did not object.
During cross-examination of L.D., McCullough‟s counsel asked her, “You‟ve also
said that he touched you with another part of his body, haven‟t you?” Id. at 578. L.D.
said, “[Y]eah … [i]n California,” McCullough “used his private,” it was “inside” her
private, and “it was moving.” Id. McCullough‟s counsel asked her how far inside it
went, but L.D. said that she did not know. Id. Trial counsel asked L.D. what it felt like,
and L.D. responded, “I don‟t know, really.” Id. at 579. L.D. testified that Sarah was
7
asleep in the bed but had no idea what was happening. L.D. also testified that she told
Sarah that “Daddy‟s pee pee was tickling [her] pee pee,” but Sarah did not understand
and did not ask any questions. Id.
In cross-examining Judy, McCullough‟s counsel questioned her about her
inconsistent statements regarding the reason that L.D. told her that she did not want to
visit McCullough. Specifically, he asked her about her testimony during her deposition:
You said in response to what [L.D.] had told you when she made this first,
or why she didn‟t want to go to [McCullough‟s], quote, we went into my
bedroom and she said to me that, that she had taught [E.M.] to play with
herself, to masturbate. Do you remember saying that under oath?
Id. at 611-12. Judy answered, “Yes.” Id. at 612.
McCullough‟s counsel also cross-examined Bowers and Detective Faber. He
asked Bowers whether she personally witnessed any of the allegations and whether she
was “just going on what [L.D.] told [her].” Id. at 649. Bowers answered, “That‟s true.”
Id. He asked Detective Faber to confirm that she was not an eyewitness to any of the
allegations against McCullough and that she had no personal knowledge about whether
the allegations occurred, and she agreed. Id. at 657. Then he asked her, “You‟re going
solely on what you were told by [L.D.] and her family,” and she replied, “That‟s correct.”
Id.
To rebut the State‟s case, McCullough‟s counsel presented the testimony of
McCullough‟s mother and father, private investigator Charles Martin Perkins, and
McCullough. McCullough‟s parents testified that McCullough had asked for advice on
how to discipline L.D. Id. at 663-71. McCullough‟s father also testified that he had
8
witnessed L.D. misbehave and that she would try to avoid punishment. Id. at 671-72.
Perkins testified that he was a former police detective and had received more than eighty
to a hundred hours of specialized training in the area of investigating rape and child
molestation. Id. at 686-87. He testified that he had significant experience in
investigating sex crimes and that as a police detective he had investigated at least forty-
four suspects against whom charges had been filed as well as other suspects against
whom charges ultimately had not been filed. Id. at 687-88. Perkins had been a private
investigator for four years. Id. at 689.
McCullough‟s counsel then questioned Perkins regarding his standard practice for
investigating allegations of sexual molestation. Id. at 692-94. McCullough‟s counsel
also asked Perkins what he did to investigate McCullough‟s case. Perkins testified that
he read trial counsel‟s entire file (except for privileged information), read everything that
was produced during discovery, reviewed the Bowers Interview, and visited L.D.‟s
school to interview the principal and review her school records. Id. at 695-97. Perkins
testified that he read approximately 170 pages and spent 150 hours investigating the case.
Id. at 708. McCullough‟s counsel asked Perkins if he had received separate records from
Child Protective Services (“CPS”), and the State objected. Id. at 697.
The trial court held a recess to address the objection outside the presence of the
jury. Trial counsel argued that the evidence was relevant to show that the State‟s
investigation was poor. Id. at 698. Trial counsel also argued that he wanted Perkins to
testify as to his impression of the Bowers Interview. Id. at 703. The trial court granted
the State‟s objection, ruling that Perkins could testify to the total number of documents he
9
looked at but could not refer to CPS documents. The trial court further ruled that Perkins
could testify to the general characteristics he looks for in assessing child interviews but
could not testify about particular statements made in the Bowers Interview because that
would invade the province of the jury. Id. at 706-707. Trial counsel did not make an
offer to prove.
Trial counsel then asked Perkins what he looked for when assessing a recorded
child interview like the one in this case. Perkins offered the following explanation:
In watching the child and watching the interviewer, the questions, the way
that they are posed to the child, whether or not they happen to ask a child a
question that would cause them to answer in a particular way, body
language, eye contact, and the overall child‟s attitude to the interviewer and
to the totality of the circumstances.
Id. at 709. Perkins also testified that he did not hold a degree as a clinical psychologist
but that the training that he had received from the “[FBI], the Indiana State Police, and
from the National Child Abuse Defense Resource Center in Las Vegas, all circled around
the psychological aspects and the trauma as a result of, of child abuse and what to look
for when certain things are there, and when certain things are absent.” Id. at 715-16.
McCullough testified last. During his direct examination, trial counsel read
McCullough each of the charges, and McCullough specifically denied committing each
of those acts. Id. at 718-19. In addition, McCullough specifically denied ever molesting
L.D. at any time. Id. at 719. McCullough further testified that he had disciplined L.D.
“[f]or masturbating and, and messing with herself,” and “had caught her several times.”
Id. at 772.
10
During closing argument, the prosecutor stated, “The last time [L.D.] remembers it
happening she was seven. Oh, but she described that it could have happened six, seven,
maybe even younger than that, but the last time I remember I was seven years old, I was
at his house.” Id. at 780. McCullough‟s counsel did not object.
During his closing argument, McCullough‟s counsel argued to the jury that L.D.‟s
testimony was “uncertain,” “confused,” and “lost.” Id. at 787-88, 795. He argued that
the reason that L.D. was uncertain was because the molestations did not happen. Id. at
788. McCullough‟s counsel argued that the State‟s investigation was poor, stating, “I
believe our evidence regarding our investigation is clearly, clearly more thorough than
the State‟s investigation.” Id. at 786. McCullough‟s counsel pointed out that Judy‟s trial
testimony as to what L.D. told her in December 2005 was inconsistent with Judy‟s earlier
statement that L.D. told her that she did not want to go to McCullough‟s house because
she had taught her sister to masturbate. Id. at 792-93. McCullough‟s counsel argued that
Bowers improperly questioned L.D. by asking leading questions:
[Bowers asked L.D.] are you saying the last time that something happened
he touched your you-know-what with his finger. That‟s exactly what the
person who conducted this interview took the stand and told you she wasn‟t
supposed to do, to lead [L.D.], put words in her mouth. But what‟s her
answer? I don‟t know. Okay, or his tongue. Leading. She‟s begging her
to make their case. Or his tongue. Answer, I‟m not sure. Okay, so what is
it you remember about the last time. The last time. Question, nothing.
Answer, I don‟t know. She‟s lost. She‟s lost because she got confused and
now she can‟t get back, because what she‟s trying to go to isn‟t reality.
Id. at 796. McCullough‟s counsel also argued that L.D.‟s California Claim was
“incredible” and that was “consistent with none of this having happened and
[McCullough] being innocent.” Id. at 797.
11
During rebuttal, the prosecutor stated, “California, I wish I could charge it, but
that‟s not my jurisdiction. I wish I could charge in California what he did to her, what
she testified that he did to her, what she told Diane Bowers that he did to her.” Id. at 802.
McCullough‟s counsel did not object.
The jury found McCullough guilty as charged. The trial court sentenced
McCullough to thirty years with ten suspended for each of the class A felony convictions
and four years for the class C felony conviction, to be served concurrently.
McCullough appealed, arguing that the trial court improperly denied his motion
for discharge, improperly admitted a statement L.D. made to an investigator, and
committed fundamental error by instructing the jury that evidence of the slightest
penetration was sufficient to sustain a child molesting conviction, and that the prosecutor
committed misconduct during closing argument by saying “walk” to indicate acquittal.
McCullough, slip op. at 2. We found McCullough‟s arguments unavailing and affirmed
his convictions.
On April 21, 2009, McCullough filed a pro se petition for PCR alleging that he
had received ineffective assistance of trial counsel. Appellant‟s App. at 34, 100-10. On
April 27, 2010, McCullough, by counsel, filed an amended PCR petition, in which he
alleged additional claims of ineffective assistance of trial counsel and withdrew some of
the claims from the initial petition. Id. at 134-39. Following a hearing, on June 3, 2011,
the post-conviction court issued a fifty-five page order, consisting of 265 findings of fact
and conclusions of law, in which it concluded that McCullough had not been denied
12
effective assistance of trial counsel and denied his petition. Appellant‟s App. at 45-99.
The order provides in relevant part as follows:
31. [Trial counsel] was admitted to practice law in the State of Indiana
in 1996. His practice is exclusively in the area of criminal defense.
32. [Trial counsel] had extensive prior felony jury trial experience
before representing McCullough in this matter and had handled sex offense
cases both as a deputy public defender and as private counsel.
33. In his previous experience with sex offense cases, [trial counsel] had
dealt with the issue of child memories and had received continuing legal
education training on issues related to the defense of child molest cases.
34. [Trial counsel‟s] pre-trial performance included conducting in excess
of ten meetings with McCullough and other family members before trial,
conducting discovery that included a review of several hundred pages of
documents provided by the State, filing separate requests for specific
discovery, seeking production of documents from several non-parties,
deposing or attempting to depose certain State‟s witnesses and seeking
continuances of the trial date in order to conduct these depositions,
conducting cross-examination of [Sarah, L.D., E.M.], and Judy at the child
hearsay hearing, submitting proposed findings of fact and conclusions of
law on the child hearsay testimony, filing a Notice of Intent to Rely on
Leaned [sic] Treatises, filing witness lists, successfully seeking to exclude
the testimony of [Sarah], moving to compel production of the Child
Protective Services file in this case, attending a hearing on his request to
compel production of said file, moving to exclude evidence obtained
through CPS, filing a Motion for Discharge pursuant to Indiana Criminal
Rule 4(C), filing an Objection to Change of Docket, attending pre-trial
hearings including a show cause hearing, hiring an investigator to conduct
an independent review of the State‟s evidence, and formulating a theory of
defense for trial.
35. In preparing the case, [trial counsel] considered and investigated the
possibility that [Sarah] was motivated to make a false claim of molest
against McCullough and coached [L.D.] to make these allegations.
….
52. As [trial counsel] believed that [L.D.‟s] claim of molestation while in
California was demonstrably false, he wanted to present this information to
13
the jury. [Trial counsel] knew that he could have objected to any reference
to the uncharged incident in California but decided not to.
….
54. [Trial counsel] described this evidence as a two edge sword. He
recognized that while this evidence could be a powerful impeachment tool,
there was a danger in presenting to a jury evidence of a prior molest
allegation. Understanding the risk, [trial counsel] fought to have the jury
hear this evidence.
….
57. [Trial counsel‟s] decision to present evidence to the jury regarding
the uncharged California molest claim was a reasonable and deliberate
choice of trial strategy.
….
63. [Susan] Lukasha [McCullough‟s mother] provided [trial counsel]
with the name of a potential out-of-state expert witness, Dr. Maggie Bruck
(“Bruck”), who may have been able to testify as to certain trial issues such
as child testimony, false sexual allegations, and memory implantation.
64. [Trial counsel] read a published work written by Bruck on sexual
allegations made by children and contacted her office about the possibility
of serving as an expert witness for the defense.
65. [Trial counsel] conducted research at the Indiana University Medical
School regarding certain articles contained in the annotations of Bruck‟s
work. Perkins also reviewed the book.
66. Although [trial counsel] listed Bruck as a potential defense witness,
eventually he declined to call her as a witness. Instead he sought to present
evidence through a private investigator, such as former Indiana State Police
Detective Perkins, as to the faults in the State‟s investigation of the case.
67. Having decided to utilize the services of Perkins, [trial counsel] did
not consider using other expert witnesses on topics such as child memory
and suggestibility.
….
14
69. At trial, [trial counsel‟s] performance included seeking a motion in
limine which was granted, in part, arguing for the admission of evidence of
past claims by [L.D.] of molestation, conducting voir dire, seeking to
remove certain potential jurors for cause, raising an objection to one of the
Court‟s preliminary instructions, presenting an opening statement, cross-
examining the State‟s witnesses, arguing for the admission of evidence that
[L.D.] was disciplined for masturbating and teaching E.M. to masturbate,
seeking a directed verdict on Count III of the charging information,
presenting testimony of four (4) defense witnesses, including McCullough,
and presenting a cogent closing argument.
….
263. Through his presentation of evidence and argument, McCullough
has shown that [trial counsel] could have conducted the defense to these
charges in an entirely different manner, both in terms of defense theories
and techniques. The Court agrees that counsel could have taken any
number of other approaches to this case. However, the fact that a given
criminal case may be defended more thoroughly or aggressively does not
necessarily mean that [trial counsel‟s] strategy was deficient, even if the
strategy was unsuccessful.
264. To the extent that McCullough can point to a mistake by his counsel,
such an error does not warrant the relief he seeks. Whether these perceived
mistakes are viewed cumulatively or individually, McCullough has failed to
demonstrate that his counsel rendered deficient representation. “Petitioner
is not entitled to a perfect trial, but is entitled to a fair trial, free of errors so
egregious that they, in all probability, caused the conviction.” Oliver v.
State, 843 N.E.2d 581, 586
(Ind. Ct. App. 2006)[, trans. denied.] The
Court remains unconvinced that any errors on the part of trial counsel,
either cumulatively or in isolation, caused McCullough‟s conviction.
Id. at 52-53, 56-59, 98 (citations and footnote omitted).
McCullough appeals. Additional facts will be provided.
Discussion and Decision
Standard of Review
This is an appeal from the denial of a PCR petition.
15
We observe that post-conviction proceedings do not grant a
petitioner a “super-appeal” but are limited to those issues available under
the Indiana Post-Conviction Rules. [Ind. Post-Conviction Rule 1(1)]. Post-
conviction proceedings are civil in nature, and petitioners bear the burden
of proving their grounds for relief by a preponderance of the evidence. Ind.
Post-Conviction Rule 1(5). A petitioner who appeals the denial of PCR
faces a rigorous standard of review, as the reviewing court may consider
only the evidence and the reasonable inferences supporting the judgment of
the post-conviction court. The appellate court must accept the post-
conviction court‟s findings of fact and may reverse only if the findings are
clearly erroneous. If a PCR petitioner was denied relief, he or she must
show that the evidence as a whole leads unerringly and unmistakably to an
opposite conclusion than that reached by the post-conviction court.
Shepherd v. State, 924 N.E.2d 1274, 1280
(Ind. Ct. App. 2010) (citations omitted), trans.
denied.
Ineffective Assistance of Trial Counsel
McCullough contends that the post-conviction court erred in finding that he was
not denied the effective assistance of trial counsel. The Sixth Amendment to the United
States Constitution protects the right to counsel and the right to effective assistance of
counsel.4 When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Morgan v. State, 755 N.E.2d 1070, 1073
(Ind. 2001). “[C]ounsel‟s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Williams v. State,771 N.E.2d 70, 73
(Ind. 2002). Isolated poor strategy, inexperience, or
bad tactics does not necessarily constitute ineffective assistance. Clark v. State, 668
4
The Sixth Amendment provides, in pertinent part, “In all criminal prosecutions, the accused
shall enjoy the right … to have the Assistance of Counsel for his defense.”
16 N.E.2d 1206
, 1211 (Ind. 1996), cert. denied (1997). To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel‟s performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben- Yisrayl v. State,729 N.E.2d 102, 106
(Ind. 2000) (citing Strickland v. Washington,466 U.S. 668, 687
(1984)), cert. denied (2001). A counsel‟s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State,778 N.E.2d 816, 824
(Ind. 2002). To establish prejudice, the petitioner must show that there is a reasonable probability that, but for counsel‟s unprofessional errors, the result of the proceeding would have been different.Id.
“A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Perez v. State,748 N.E.2d 853, 854
(Ind. 2001). Failure to satisfy either prong will cause the claim to fail, but most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. French,778 N.E.2d at 824
. Further, “[e]rrors by counsel that are not individually sufficient to prove ineffective representation may add up to ineffective assistance when viewed cumulatively.” Pennycuff v. State,745 N.E.2d 804, 816-17
(Ind. 2001); see also Williams v. State,508 N.E.2d 1264, 1268
(Ind. 1987)
(“[W]hile each error of counsel individually may not be sufficient to prove ineffective
representation, an accumulation of such failures may amount to ineffective assistance.”).
In the instant case, we believe that the post-conviction court‟s findings and
judgment should be entitled to greater than usual deference because the same judge
conducted McCullough‟s original trial and therefore is uniquely situated to assess
whether his counsel‟s performance fell below an objective standard of reasonableness
17
based on prevailing professional norms, and whether, but for counsel‟s unprofessional
conduct, there was a reasonable probability that the jury would have reached a different
verdict. See State v. Dye, 784 N.E.2d 469, 476
(Ind. 2003) (noting that because judge
presided at both original trial and post-conviction hearing, judge was in “an exceptional
position” to assess weight and credibility of factual evidence and whether defendant was
deprived of fair trial). We observe that the post-conviction court‟s judgment, consisting
of fifty-five pages and 265 findings of fact and conclusions of law, reveals a thorough
and comprehensive consideration of McCullough‟s claims of ineffective assistance of
trial counsel.
McCullough alleges that trial counsel committed numerous errors. Specifically,
he argues that his trial counsel was ineffective (1) in affirmatively seeking to offer
evidence of the California Claim and in failing to object to evidence of prior uncharged
misconduct and the prosecutor‟s references to that misconduct; (2) in failing to
adequately cross-examine the State‟s investigators; (3) in failing to make an offer of
proof when the trial court excluded Perkins‟s testimony; (4) in failing to present expert
testimony with respect to childhood memory and suggestibility; (5) in failing to present
evidence that L.D. had witnessed oral sex in the past and that Sarah had personal and
financial motives to encourage L.D. to falsely accuse McCullough; and (6) in failing to
tender or request the jury instruction required by the Protected Person Statute.
McCullough asserts that the cumulative effect of trial counsel‟s conduct satisfies both
prongs of Strickland and therefore constitutes ineffective assistance.
18
1. Prior Uncharged Misconduct
McCullough argues that his trial counsel provided ineffective assistance with
respect to prior uncharged misconduct in several instances: his decision to expose the
jury to the California Claim; his failure to object to testimony referring to other prior
uncharged misconduct; his failure to object to improper closing argument regarding the
California Claim and other prior uncharged misconduct; and his failure to request a
limiting instruction as to the California Claim. The State argues that trial counsel‟s
decisions were part of a reasonable defense strategy.
“Counsel is afforded considerable discretion in choosing strategy and tactics and
we will accord that decision deference.” Randolph v. State, 802 N.E.2d 1008, 1013
(Ind. Ct. App. 2004), trans. denied. “Reasonable strategy is not subject to judicial second guesses.” Burr v. State,492 N.E.2d 306, 309
(Ind. 1986). We “will not lightly speculate as to what may or may not have been an advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best.” Whitener v. State,696 N.E.2d 40, 42
(Ind. 1998).
Our review of the record before us reveals that trial counsel conducted extensive
investigation into the charges against McCullough before deciding on a defensive
strategy that would underscore that (1) L.D. made unbelievable claims and was unable to
provide a coherent account of the charged molestations and (2) the State‟s investigation
into her claims was inadequate and its proof rested solely upon L.D.‟s statements. See
Appellant‟s App. at 52-53 (¶¶ 34-36) and 56-58 (¶¶ 52, 62-67). We conclude that at the
outset of trial, trial counsel had formulated a reasonable and sound defense strategy.
19
Nevertheless, as a trial unfolds, events occur, some unexpected, that counsel must
react to in real time. Thus, an appellate court cannot compare counsel‟s real-time
performance to what might have been done with the benefit of hindsight. See Talley v.
State, 736 N.E.2d 766, 769
(Ind. Ct. App. 2000) (“The judicial scrutiny of counsel‟s performance is highly deferential and should not be exercised through the distortions of hindsight.”). Just because counsel is unable to pursue a reasonable defensive strategy as effectively as he or she wanted to does not mean that the plan was a bad plan. “Strickland does not guarantee perfect representation, only a reasonably competent attorney.” Woodson v. State,961 N.E.2d 1035, 1041-42
(Ind. Ct. App. 2012) (citation and quotation marks omitted), trans. denied. “There is no constitutional requirement that a defense attorney be a flawless strategist or tactician.”Id. at 1042
. In the case at bar,
our review of the record reveals that trial counsel‟s performance during trial was
consistently aimed at executing his deliberately chosen defense strategy.
Regarding trial counsel‟s decision to expose the jury to the California Claim,
McCullough recognizes that “[e]vidence of a demonstrably false claim of a prior sexual
assault by a complaining witness is admissible for impeachment purposes.” Appellant‟s
Br. at 19 (citing State v. Walton, 715 N.E.2d 824, 828
(Ind. 1999)). He further notes that “[w]hen the case against an accused depends on the credibility of a complaining witness, proper presentation of false claim impeaching evidence is a strong defensive shield.”Id.
(citing Ellyson v. State,603 N.E.2d 1369, 1374-75
(Ind. Ct. App. 1992)). However,
McCullough claims that trial counsel did not have an effective plan to demonstrate the
20
falsity of the California Claim and unwisely ran the risk that the jury would draw the
propensity inference forbidden by Indiana Evidence Rule 404.5
Specifically, McCullough faults his trial counsel for excluding Sarah as a witness
because her account of the California Claim indicated that a six-year old boy committed
the alleged sexual act. The post-conviction court found that trial counsel “preferred
exclusion to unanticipated testimony as [trial counsel] did not want to take the chance
that [Sarah] would make new accusations,” and the decision “to seek exclusion of
[Sarah‟s] testimony was a reasonable strategic choice.” Appellant‟s App. at 55 (¶¶ 46,
49). The record shows that McCullough‟s trial counsel attempted on numerous occasions
to depose, interview, and contact Sarah, but was unsuccessful. PCR Tr. at 113. Trial
counsel was aware that Sarah and McCullough were involved in a custody dispute and
that E.M. had alleged that McCullough had molested her and had recanted the allegation.
In light of these circumstances, there was an appreciable risk that Sarah would provide
unpredictable testimony that would be detrimental to McCullough‟s case; as such, we
conclude that the decision to exclude Sarah rather than risk unpredictable testimony was
reasonable.
Moreover, just because trial counsel did not demonstrate the falsity of the
5
Indiana Evidence Rule 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.
21
California Claim in the manner that McCullough, with the benefit of hindsight, argues
that trial counsel should have does not mean that counsel‟s assistance was ineffective.
The record shows that trial counsel did use the California Claim to undermine the
charged molestation allegations. In his opening argument, McCullough‟s counsel
developed his theme that L.D. was prone to making up unbelievable stories. He stated
that L.D. “said a lot of things that just don‟t make sense.” Trial Tr. at 550. He pointed
out that the “State left out that [L.D.] also claimed when she was three [McCullough] put
his penis inside her. A lot of his penis inside her.” Id.
Trial counsel cross-examined
L.D. about the California Claim and elicited testimony that when McCullough put “his
private” inside her private, it was moving, but she did not know how far inside her it went
or what it felt like, and that her mother was asleep in the bed right next to her when it
happened. Id. at 578-79. L.D. also testified that when she later told her mother what
happened, her mother did not understand what L.D. was talking about. Id. at 580. The
jury later viewed and was provided with the transcript of the Bowers Interview.
Significantly, L.D.‟s trial testimony regarding the California Claim differs from her
description of it in the Bowers Interview, in which she stated that McCullough‟s
“private” went inside “a lot,” and Sarah screamed, “[Y]ou had sex?” State‟s Trial Ex. 2
at 17-18. On its face, the California Claim is dubious. L.D.‟s inconsistent statements
about what allegedly occurred in California cast serious doubt on her credibility. 6
6
To the extent that McCullough argues that trial counsel erred in failing to submit the March
2006 medical report of Dr. Roberta Hibbard‟s examination of L.D., we observe that the report concludes
that L.D.‟s “examination neither supports nor negates concerns of sexual contact.” Petitioner‟s Ex. 13.
Accordingly, the report was of minimal probative value and any prejudice resulting from the failure to
introduce the report is insignificant.
22
Also at trial, McCullough testified in his own defense and specifically denied
committing the act that was alleged in the California Claim.7 Trial Tr. at 722. In
addition, McCullough not only denied that he committed any of the molestations during
the time period as charged, but he also denied that he ever committed such acts at any
time. Id. at 718-19.
McCullough also contends that his counsel provided ineffective assistance when
he failed to object to L.D.‟s testimony on direct examination that McCullough molested
her when she was in second grade, first grade, kindergarten and pre-school. Id. at 564.
In light of trial counsel‟s strategy of emphasizing to the jury that L.D. made unbelievable
claims, McCullough has failed to show that he was prejudiced. L.D.‟s testimony may
have added strength to trial counsel‟s argument that she could not provide a coherent
description of the alleged acts.8 In fact, trial counsel was able to argue in his closing
statement that L.D.‟s lack of coherence indicated that her allegations were not true. See
id. at 787-88, 795.
Another alleged error is that trial counsel failed to make objections during closing
argument. Specifically, he argues that trial counsel erred in failing to object to the
prosecutor‟s comment that L.D. said that McCullough molested her when she was “six,
seven or even younger,” and to the prosecutor‟s comment that she wished that she could
7
The dissent asserts that trial counsel did not introduce any evidence to prove the falsity of the
California Claim. McCullough‟s testimony is evidence of the falsity of the California Claim.
8
At the post-conviction hearing, McCullough‟s trial counsel recognized the reference to
uncharged misconduct and had no explanation or tactical reason for failing to object. PCR Tr. at 187-88.
To the extent that trial counsel had no explanation for failing to object, we observe that courts should not
insist that attorneys “„confirm every aspect of the strategic basis for his or her actions.‟” Woodson, 961 N.E.2d at 1041
(quoting Harrington v. Richter,131 S.Ct. 770, 790
(2011)).
23
charge the California Claim. Id. at 780, 802
. The post-conviction court found in relevant
part:
110. [Trial counsel] raised no objections during the State‟s final
argument. [Trial counsel] does not routinely interject potential objections
during the State‟s closing argument as it may give the prosecution the
opportunity to reinforce damaging evidence.
111. The Court finds that [trial counsel‟s] failure to challenge these
comments did not prejudice McCullough and any timely objection to these
statements would not have affected the outcome of the trial.
Appellant‟s App. at 66 (citation omitted). We believe that trial counsel‟s lack of
objection is consistent with his defense strategy. See Wrinkles v. State, 749 N.E.2d 1179, 1197
(Ind. 2001) (noting that counsel may have strategic reason for not objecting to
prosecutor‟s remarks, and as such, failure to object is not ineffective assistance), cert.
denied (2002). In his own closing argument, trial counsel described L.D.‟s testimony as
“confused,” referred to L.D.‟s California Claim as “incredible,” and argued that L.D. did
not have “her story together” with respect to the charged molestations. Trial Tr. at 796-
98. Accordingly, McCullough has failed to persuade us that the evidence unerringly and
unmistakably leads to a conclusion opposite of that of the post-conviction court. See
Fisher, 810 N.E.2d at 679.
Finally, McCullough asserts that trial counsel erred in failing to ask for an
instruction limiting the use of the California Claim for impeachment purposes.9 See Ind.
Evidence Rule 105 (“When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another purpose is admitted, the
9
The post-conviction court did not explicitly address this issue in its conclusions of law.
24
court, upon request, shall restrict the evidence to its proper scope and admonish the jury
accordingly.”). Although requesting a limiting instruction would have been the preferred
practice, trial counsel‟s failure to request the limiting instruction is not inconsistent with
the chosen defense strategy. Moreover, the absence of a limiting instruction does not rise
to the level of prejudice necessary to constitute ineffective assistance. McCullough has
failed to persuade us that there is a reasonable probability that but for the absence of a
jury instruction limiting the use of the California Claim for impeachment purposes, the
result of his trial would have been different. See Shepherd, 924 N.E.2d at 1280
.
In sum, we conclude that the alleged errors relating to the California Claim and
other prior uncharged misconduct are either consistent with trial counsel‟s deliberately
chosen defensive strategy or do not result in any significant prejudice in light of the
chosen defensive strategy. McCullough has failed to persuade us that the trial court erred
in finding that trial counsel‟s conduct relating to prior uncharged misconduct did not
constitute ineffective assistance.
2. Failure to Cross-Examine State Investigators
McCullough argues that even though the lack of proper investigation by the State
was a main theme of trial counsel‟s defense, trial counsel‟s cross-examination of Bowers
and Detective Faber failed to adequately advance this theme. The post-conviction court
found that “[a]lthough the decision to rely primarily on the testimony of Perkins was
unsuccessful at trial, the Court does not find that the decision to forego an aggressive
cross-examination of Bowers and Faber to be an unreasonable choice of trial strategy.”
Appellant‟s App. at 63 (¶ 92).
25
In opening argument, trial counsel told the jury that the defense had “an
investigator, and you‟ll hear about his investigation, and you can compare the two
investigations.” Trial Tr. at 553. Then, during his cross-examination of Bowers, trial
counsel elicited testimony that Bowers relied solely on L.D.‟s assertions as evidence of
molestation. Id. at 649. As for Detective Faber, she testified on direct examination that
her investigation consisted of viewing the Bowers Interview and interviewing Sarah and
Judy, and that her investigation did not include an interview with L.D. Id. at 653-54. On
cross-examination, trial counsel elicited testimony that Detective Faber relied solely on
what she was told by L.D. and her family. Id. at 657. Thus, trial counsel‟s cross-
examination of Bowers and Detective Faber showed that the State‟s investigation rested
on an interview with the victimthe Bowers Interviewand interviews with the victim‟s
family members. This cross-examination purposely and effectively advanced trial
counsel‟s defense strategy to show the jury that the State‟s investigation was minimal.
See Kubsch v. State, 934 N.E.2d 1138, 1151
(Ind. 2010) (“[T]he method of impeaching witnesses is a tactical decision and a matter of trial strategy that does not amount to ineffective assistance.”). McCullough‟s argument fails to persuade us that the evidence leads unerringly and unmistakably to a conclusion opposite of that reached by the post- conviction court. See Shepherd,924 N.E.2d at 1280
.
3. Failure to Make an Offer of Proof
McCullough contends that his trial counsel‟s failure to make an offer to prove
regarding Perkins‟s testimony was ineffective assistance. The post-conviction court
found in relevant part as follows:
26
84. As [trial counsel] was questioning Perkins about the CPS records
that he reviewed during the course of his investigation, the State raised an
objection and a hearing was held outside the presence of the jury.
85. [Trial counsel] argued that the evidence was necessary to call into
question the quality of the State‟s pre-trial investigation. He also offered
that he wanted Perkins to testify as to his impression of the forensic child
interview conducted by Bowers.[10]
86. The trial court ruled that Perkins could not testify as to the contents
of the CPS records he reviewed and limited the scope of the witness‟
testimony. Specifically, the trial court stated:
He can testify as to the totality of the number of documents
he‟s looked at, but not, but not from CPS. So CPS is, CPS is
out in terms of permissible subject matter. In terms of your
jail inquiry, he can indicate based on his training and
experience what general characteristics he‟s looking for in
terms of, of these types of statements. But again, that only,
and only can parallel the information provided form [sic] the
State in its direct. It cannot go to specific comments on this
particular tape or this specific statement, because that does
invade the province of the jury.
87. [Trial counsel] was surprised by the ruling and believed that the trial
court had precluded him from presenting his witness in the manner he
desired.
88. Given the ruling, Perkins offered this testimony of what he looked
for in a forensic child interview:
In watching the child and watching the interviewer[,] the
questions, the way that they are posed to the child, whether or
not they happen to ask a child a question that would cause
them to answer in a particular way, body language, eye
contact, and the, the overall child‟s attitude to the interviewer
and to the totality of the circumstances. [Trial Tr. at 709.]
10
The dissent‟s assertion that trial counsel did not argue that the trial court‟s ruling was
erroneous seems to imply that trial counsel passively accepted the trial court‟s ruling. However, the
record supports the post-conviction court‟s finding that trial counsel argued vigorously for the admission
of Perkins‟s testimony. Trial Tr. at 698, 703.
27
….
93. To the extent that [trial counsel] may be faulted for failing to make
an offer to prove the testimony of Perkins, as shown below, the Court finds
that McCullough was not prejudiced by this omission.
….
97. Had he been permitted to testify further at trial, Perkins would have
attested that in his view, Sgt. Faber‟s “objectivity may very well have been
limited.” [PCR Tr. at 166.] Perkins felt that the child custody case and the
possible suicide attempt by [Sarah] were important issues to be investigated
and disagreed with Faber‟s assessment that these issues were not important.
He also believed that Faber should have asked questions of [Sarah]
regarding the California molest allegation. Had he been Faber‟s supervisor,
Perkins would have instructed her to conduct her interview with [Sarah] a
second time.
….
101. In sum, if Perkins had been permitted to continue with his testimony
as planned, he would have raised certain criticisms about how Faber
conducted her investigation and how Bowers conducted the interview of
[L.D.]. However, McCullough has not shown that the use of an expert in
the field of sex crimes investigation such as Perkins would have produced a
different result at trial. The proffered testimony merely presented an
alternate method of conducting such an investigation and does not persuade
the Court that the investigation and forensic child interview led to an unjust
result.
….
245. At trial, [trial counsel] did not make an offer to prove following the
trial court‟s limitation of Perkins‟ anticipated testimony related to his
investigation of the case and his critique of the State‟s investigation.
Although he was well aware of the procedure for making a valid offer of
proof, he does not recall why he did not make such an offer. To the extent
it failed to properly preserve an evidentiary question for appellate review,
[trial counsel‟s] performance fell below prevailing professional norms.
246. The Court concludes that McCullough‟s argument fails to satisfy the
prejudice prong of Strickland. As recited above, if Perkins had been
permitted to continue with his testimony as planned, he would have been
28
critical of Faber‟s objectivity and questioned the manner in which Faber
conducted her investigation. Perkins also would have instructed her to
conduct her interview with [Sarah] a second time.
247. Despite his unfamiliarity with basic forensic child interview
techniques, Perkins would have questioned how Bowers conducted her
interview of [L.D.].
248. Even though Perkins would have investigated more into [Sarah‟s]
background, he was unable to interview her prior to trial. Similarly, he did
not interview [L.D.], Faber, Bowers, or any other possible witnesses before
trial.
249. Perkins‟ proffered testimony presented an alternate method of
conducting an investigation of child molestation. However, the evidence
presented on post-conviction does not persuade the Court that the failure to
make an offer of proof and preserve the issue for appeal led to an unjust
result. No prejudice has been shown here.
Appellant‟s App. at 62-65, 93-94 (citations omitted).
At the post-conviction hearing, McCullough‟s trial counsel testified that he
wanted to expose weaknesses in the State‟s investigation through Perkins, that this was a
“critical part” of the evidence, and that he thought the case was prejudiced by his inability
to present such evidence. PCR Tr. at 256-57. In his brief, McCullough argues that
Perkins would have testified that the State‟s investigation was biased and incomplete and
that Bowers‟s interview questions were suggestive and could have influenced L.D.
Appellant‟s Br. at 13-14, 28. As previously noted, we cannot compare counsel‟s real-
time performance to what might have been done with the benefit of hindsight. See
Talley, 736 N.E.2d at 769
. Our review of the record shows that despite the unexpected
curtailment of Perkins‟s testimony, trial counsel was still able to pursue his chosen
strategy, albeit not as effectively as he had anticipated. Trial counsel elicited testimony
29
from Perkins regarding his standard practice for investigating allegations of sexual
molestation. Trial Tr. at 692-94. Perkins also testified that he spent 150 hours
investigating McCullough‟s case, which included reading 170 pages of material and
visiting L.D.‟s school. Id. at 694-97, 708. Methods of conducting child forensic
interviews were also explored. Trial counsel was able to elicit testimony from Perkins
that in assessing a forensic interview with a child, Perkins would watch to see whether
the interviewer said anything that prompted a specific response and look at the child‟s
demeanor and the totality of the interview. Id. at 709.
The jury had evidence from which to assess the State‟s investigation and the
Bowers Interview. The jury had been informed as to how Bowers and Detective Faber
had investigated the case. The jury knew that Bowers had interviewed L.D. The jury
knew that Detective Faber had viewed the Bowers Interview and interviewed Sarah and
Judy. The jury viewed the Bowers Interview, so the jury knew exactly what Bowers and
Detective Faber relied on. The jury was free to compare Bowers and Detective Faber‟s
investigation with Perkins‟s investigation. In addition, the jury was informed of
Perkins‟s approach to child interviews and was free to apply it to the Bowers Interview.
Based on the evidence presented at trial, trial counsel was able to argue in his closing
statement that the State‟s investigation of the case was poor. Specifically, he stated, “I
believe our evidence regarding our investigation is clearly, clearly more thorough than
the State‟s investigation.” Id. at 786. Trial counsel argued that the State “proved that
[McCullough] was accused, that‟s what they proved,” and then proceeded to highlight all
the shortcomings in the State‟s case. Id. Trial counsel also emphasized the shortcomings
30
of the Bowers Interview, specifically pointing out that Bowers had asked L.D. leading
questions even though Bowers herself had testified that she should not ask such
questions. Id. at 795-96. Given the evidence introduced at trial, we are unpersuaded that
but for counsel‟s failure to make an offer of proof, there is a reasonable probability that
the verdict would have been different.11
4. Failure to Present Expert Testimony
McCullough contends that trial counsel provided ineffective assistance in failing
to present expert testimony with respect to childhood memory and suggestibility.
McCullough argues that “[w]hile Mr. Perkins by experience and training was competent
to explain to the jury the serious deficiencies in the State‟s investigation, he was not
qualified … to testify on the critical issues of child psychology that were involved.”
Appellant‟s Br. at 30. At the post-conviction hearing, McCullough produced Dr. Richard
Lawlor, a practicing clinical psychologist and professor emeritus of the Indiana
University School of Medicine, Department of Psychiatry, who testified as to how
11
McCullough asserts that the post-conviction court “applied an incorrect standard requiring
petitioner to show that had he presented the evidence he would have been acquitted.” Appellant‟s Br. at
29 (citing Appellant‟s App. at 73 (¶160) and 94 (¶¶ 247-49)). We disagree. The post-conviction court
found that McCullough argued that he would have been acquitted:
160. A significant portion of McCullough’s claim is devoted to the argument that if [trial
counsel] had developed the testimony of Faber and Bowers more thoroughly, Perkins
would have been permitted to testify as to the weakness in the State‟s investigation and
McCullough would have been acquitted.
Appellant‟s App. at 73 (emphasis added). However, in its conclusions of law, the post-conviction court
stated that “the evidence presented on post-conviction does not persuade the Court that the failure to make
an offer of proof and preserve the issue for appeal led to an unjust result.” Id. at 94 (¶ 249). We read the
post-conviction court‟s use of “unjust result” as synonymous with the required standard, namely “a
reasonable probability that but for counsel‟s unprofessional errors, the result of the proceeding would
have been different.” See French, 778 N.E.2d at 824
.
31
children may form false memories and what kind of clues are suggestive of the formation
of a false memory.
The post-conviction court found that trial counsel and McCullough discussed
using Dr. Maggie Bruck as an expert who could testify as to childhood memory and false
sexual allegations. Appellant‟s App. at 57-58 (¶¶ 62, 63). Trial counsel read Dr. Bruck‟s
book on sexual allegations made by children and read some of the articles contained in
the annotations of Bruck‟s work. Id. at 58 (¶¶ 64, 65). The post-conviction court
concluded that trial counsel “made an objectively reasonable choice in selecting a person
of Perkins‟ background to testify rather than someone with Lawlor‟s expertise.” Id. at 83
(¶ 207).
At the post-conviction hearing, trial counsel testified that he had not found
academic experts to have been particularly helpful over the years and preferred to go with
more practical experts. PCR Tr. at 248. For that reason, trial counsel decided to use
Perkins rather than Dr. Bruck. We observe that “in the context of an ineffective
assistance claim, „a decision regarding what witnesses to call is a matter of trial strategy
which an appellate court will not second-guess.‟” Curtis v. State, 905 N.E.2d 410, 415
(Ind. Ct. App. 2009) (quoting Johnson v. State,832 N.E.2d 985, 1003
(Ind. Ct. App. 2005), trans. denied); see also Wrinkles v. State,749 N.E.2d 1179, 1200
(Ind. 2001)
(“Which witnesses to call is the epitome of a strategic decision.”) (citation and quotation
marks omitted), cert. denied (2002). McCullough has not carried his burden to overcome
the strong presumption that counsel provided effective assistance in electing to call
32
Perkins rather than Dr. Bruck as a witness.12
5. Failure to Present Evidence
McCullough asserts that trial counsel was ineffective in failing to present evidence
that L.D. had witnessed oral sex in the past and that Sarah had personal and financial
motives to encourage L.D. to falsely accuse McCullough.
As to evidence that L.D. had witnessed oral sex, McCullough contends that trial
counsel erred in failing to call Israel Hurst, a friend of McCullough, as a witness. The
post-conviction court found in relevant part:
162. Had he been called to testify at trial, Petitioner‟s witness Israel Hurst
would have described a prior incident at an unspecified time in which
[L.D.] was exposed to the videotaped images of females engaging in oral
sex. He also claimed that [Sarah] engaged in “strip dancing” for men in
[L.D.‟s] presence.
….
166. [Trial counsel] spoke with Hurst during his preparation of the case
and was aware of his potential as a witness. At the evidentiary hearing,
McCullough did not ask [trial counsel] why he chose not to call Hurst as a
witness at trial.
167. McCullough has not shown that [trial counsel‟s] failure to call Hurst
as a trial witness was objectively unreasonable.
….
12
McCullough argues that the standard of prejudice applied by the post-conviction court on this
issue was incorrect. Appellant‟s Br. at 33 n.21. Specifically, the post-conviction court found, “Although
the Court finds that Lawlor is a much more enlightening and interesting witness than Perkins,
McCullough has not shown that the use of an expert in the field of child psychology such as Dr. Lawlor
would have produced a different result at trial.” Appellant‟s App. at 77 (¶ 181). We observe that the
petitioner on post-conviction relief is required to show that there is “a reasonable probability” that the
result of the proceeding would have been different. See French, 778 N.E.2d at 824
. Here, we need not reach the prejudice prong because we find that counsel‟s conduct does not fall below “an objective standard or reasonableness based on prevailing professional norms.” Seeid.
33
241. …. As McCullough did not ask [trial counsel] why he chose not to
call Hurst as a witness at trial, the Court concludes that McCullough has not
shown the failure to call this witness was objectively unreasonable. No
prejudice is shown here.
Appellant‟s App. at 74-75, 93 (citations omitted). We agree with the post-conviction
court that McCullough failed to carry his burden to show deficient performance.
As for evidence that Sarah had personal and financial motives to encourage L.D.
to falsely accuse McCullough, McCullough contends that trial counsel failed to call E.M.
as a witness. The post-conviction court found in relevant part:
121. The Court denied McCullough‟s request to call [E.M.] to testify at
the [PCR] hearing. McCullough made an offer of proof as to the substance
of [E.M.‟s] testimony:[13]
… [E.M.] would testify that following her being taken from
the custody of her father and put in the custody of her mother,
and this is subsequent to the charges that were filed against,
or at least brought against Mr. McCullough. [E.M.]
remembers a conversation with the mother, in which the
mother told her that Mr. McCullough had inappropriately
touched her in her private area. She said at that time she
believed what her mother told her. Later said that did not
happen and she recanted that and she did not believe her
father had abused her in any way. That would be the
evidence we would have put in via [E.M.], had we been
permitted. My argument is that‟s circumstantial evidence of
improper coaching on the part of the mother and [L.D.] as
well.
13
The post-conviction court cited page 333 of the PCR transcript, but we found this offer of
proof on page 376.
34
Appellant‟s App. at 68 (citation omitted).14
Trial counsel testified at the PCR hearing that he had spoken to E.M., knew that
she had recanted, and had seen notes from E.M.‟s counselor that indicated there “may
have been improper influence with respect to [E.M.].” PCR Tr. at 180-82. Trial counsel
testified that in considering whether to use that evidence he “really thought we would be
able to develop that during [E.M.‟s] trial.” Id. at 183. Trial counsel also testified that he
did not have a tactical explanation for not using the evidence of improper influence with
respect to E.M. at L.D.‟s trial. Id. We find trial counsel‟s testimony on cross-
examination revealing:
Q: The – you testified that the –that the two cases [E.M.‟s and L.D.‟s]
were interrelated, is that correct?
A: Yes.
Q: But they obviously were not interrelated in the sense that they
happened at the same time, did they?
A: No.
Q: They involved the same family essentially, is that correct?
A: Yes.
Q: And they arose out of the same potential motives that you wanted to
14
The State baldly asserts that E.M.‟s testimony would have been inadmissible hearsay.
Appellee‟s Br. at 24. See Ind. Evidence Rule 801(c) (“„Hearsay‟ is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.”); Ind. Evidence Rule 802 (“Hearsay is not admissible except as provided by law or by these
rules.”). McCullough contends that “the statements attributed to Sarah by E.M. were not hearsay, but
were verbal acts (words having independent legal significance apart from their truth) constituting an
attempt to induce E.M. to bear false witness against her father.” Appellant‟s Reply Br. at 16-17 (citing
Tyler v. State, 903 N.E.2d 463
(Ind. 2009)). However, Tyler is inapposite because it does address an issue
involving verbal acts. Given the lack of a developed argument on both sides, we assume without deciding
that E.M.‟s testimony would have been admissible.
35
develop for – to prove that – the potential motives were there for
both, is that correct? Is that how they were interrelated?
A: I don‟t think [E.M.] had anything like the same the [sic] motives that
[L.D.] had, no and I never thought that. I think they were
completely [sic] and that was one of the problems in switching from
prepping for [E.M.] to prepping for [L.D.] with short notice. The
defense and the motives and the causation of the statements in
[E.M.] - the theories on those were not even remotely related to the
same type of defense as [L.D.].
Q: But did they still involve the potential for suggestibility, the potential
for the issue regarding child support and all those sorts of things?
A: Not as clearly the child support. The suggestibility because it was
the same investigators and interviewers, yes.
Id. at 278-79 (emphasis added).
Trial counsel‟s testimony reveals that he did not think that the root sources of the
children‟s molestation allegations against McCullough were the same. Unlike E.M., L.D.
had allegedly been disciplined for masturbation and her desire to avoid discipline was
presented to the jury as a possible explanation as to why L.D. would fabricate a claim of
molestation. Trial counsel brought out this explanation in his cross-examination of Judy
and through the direct testimony of McCullough and both his parents. E.M.‟s proffered
testimony was not supportive of or in any way related to trial counsel‟s deliberately
chosen strategy. In light of trial counsel‟s defense strategy, we are unpersuaded that
counsel‟s failure to present E.M.‟s testimony constitutes ineffective assistance.
6. Failure to Request Jury Instruction
Finally, McCullough argues that trial counsel was ineffective in failing to tender
or request the instruction required by the Protected Person Statute (“PPS”). The PPS
36
permits the admission of otherwise inadmissible hearsay evidence relating to specified
crimes, including child molesting, if certain requirements are met. Ind. Code § 35-37-4
-
6. When a court admits a statement or videotape pursuant to the PPS, the court must
instruct the jury as follows:
[I]t is for the jury to determine the weight and credit to be given the
statement or videotape and that, in making that determination, the jury shall
consider the following:
(1) The mental and physical age of the person making the statement
or videotape.
(2) The nature of the statement or videotape.
(3) The circumstances under which the statement or videotape was
made.
(4) Other relevant factors.
Ind. Code § 35-37-4-6
(h). McCullough‟s trial counsel neither tendered the instruction
nor objected to the trial court‟s failure to read it to the jury.
The post-conviction court‟s order provides in relevant part,
229. Even if the Court assumes that [trial counsel‟s] failure to have the
jury instructed as mandated by the Protected Persons Statute fell below an
objective standard of reasonableness, McCullough has not carried his
burden to show that but for his counsel‟s omission, there is a reasonable
probability that he would have been found not guilty. The jury was
instructed on a wide range of issues, including its right to determine the law
and the facts, various factors to consider in determining witness credibility,
and its ability to disregard the testimony of a witness.
230. Given the evidence presented, the Court cannot conclude that [trial
counsel‟s] oversight was so serious an omission as to overcome the
presumption of adequate performance.
Appellant‟s App. at 89-90.
37
Assuming, without deciding, that trial counsel‟s failure to tender the PPS
instruction or object to the trial court‟s failure to read it to the jury constitutes deficient
performance,15 given the substance of the instructions actually given by the trial court, we
conclude that any prejudice resulting from such deficiency does not rise to the level of
prejudice required by Strickland. The jury was provided with the following preliminary
instruction:
You are the exclusive judges of the evidence, which may be either
witness testimony or exhibits. In considering the evidence it is your duty to
decide the value you give to the exhibits you receive and the testimony you
hear. In determining the significance of a witness‟s testimony, some
factors you may consider are the witness‟s ability and opportunity to
observe; the behavior of the witness while testifying; any interest, bias, or
prejudice the witness may have; any relationship with people involved in
the case; the reasonableness of the testimony considering the other
evidence; your knowledge, common sense, and life experiences.
Trial Tr. at 544.
This instruction adequately emphasized the importance of the jury‟s role in
determining the value to be given to the exhibits and the in-court testimony. This would
include L.D.‟s recorded statement as well as her in-person testimony. Also, the jury
members were instructed that they could use their own common sense, knowledge, and
15
The post-conviction court concluded that the absence of the instruction mandated by Indiana
Code Section 35-37-4-6(h) does not constitute deficient performance per se, citing Curtis, 905 N.E.2d 410
. Appellant‟s App. at 89 (¶ 228). However, the Curtis court did not consider whether counsel‟s failure to tender the instruction required by Indiana Code Section 35-37-4-6(h) constituted deficient performance. Rather, the Curtis court agreed with the post-conviction court‟s conclusion that because the victims‟ videotaped statements were admitted by stipulation of the parties and not pursuant to the PPS, the trial court was not required to provide the PPS instruction, and therefore defense counsel‟s failure to request the PPS instruction did not constitute ineffective assistance.905 N.E.2d at 417
. In dicta, the Curtis court noted that “the record indicates that the jury received numerous instructions on the issue of assessing witness credibility. Thus, even if a specific instruction pursuant to the child hearsay statute had been appropriate, its absence was not prejudicial.”Id.
38
life experience to evaluate the evidence. Although the instruction did not single out
L.D.‟s videotaped statement for special scrutiny, it advised the jury that it had a duty to
evaluate the value of all the evidence. In addition, trial counsel argued in closing that the
Bowers Interview should be viewed with caution because Bowers asked L.D. leading
questions during the interview. Accordingly, McCullough has failed to carry his burden
to show that had his trial counsel successfully tendered the mandatory PPS instruction,
there is a reasonable probability that the outcome of his trial would have been different.
Based on the foregoing, we conclude that McCullough was not denied the
effective assistance of counsel. Therefore, we affirm the post-conviction court‟s denial of
McCullough‟s petition for relief.
Affirmed.
MAY, J., concurs.
BROWN, J., dissents with separate opinion.
39
IN THE
COURT OF APPEALS OF INDIANA
IAN MCCULLOUGH, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1106-PC-571
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
Brown, Judge, dissenting.
I respectfully dissent as I conclude that the cumulative effect of trial counsel‟s
errors entitles McCullough to post-conviction relief. As acknowledged by the majority,
“[e]rrors by counsel that are not individually sufficient to prove ineffective representation
may add up to ineffective assistance when viewed cumulatively.” Pennycuff v. State,
745 N.E.2d 804, 816-817
(Ind. 2001). See also Grinstead v. State,845 N.E.2d 1027, 1036-1037
(Ind. 2006) (“Certainly, the cumulative effect of a number of errors can render
counsel‟s performance ineffective.”). The verdict in this case rests primarily upon L.D.‟s
statements and “logic dictates that „a verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with overwhelming record
40
support.‟” Hilliard v. State, 609 N.E.2d 1167, 1169-1170
(Ind. Ct. App. 1993) (quoting Strickland v. Washington,466 U.S. 668, 696
,104 S. Ct. 2052, 2069
(1984)).
McCullough‟s trial counsel was preparing to try E.M.‟s case when, four days
before E.M.‟s trial date, her case was dismissed and L.D.‟s case was substituted for trial.
McCullough‟s trial counsel unsuccessfully sought a continuance.
With respect to the uncharged misconduct, trial counsel did not object during the
direct examination of L.D. when she addressed uncharged misconduct by indicating that
McCullough had molested her in second grade, first grade, kindergarten, and before pre-
school even though this testimony was inadmissible under Ind. Evidence Rule 404(b).16
At the post-conviction hearing, trial counsel recognized the reference to uncharged
misconduct and had no explanation or tactical reason for failing to object.
As to the California Claim, trial counsel acknowledged that such evidence was
inadmissible under Ind. Evidence Rule 404, but chose to expose the jury to the California
Claim because “if it‟s demonstratively false, it‟s a powerful impeachment tool, to show
that demonstratively false prior accusations of the same kind have been made.” Post-
Conviction Transcript at 116. Trial counsel based his belief that the California Claim
16
Ind. Evidence Rule 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.
The State does not respond specifically to McCullough‟s reliance on Rule 404(b) or argue that any of the
exceptions would have applied.
41
was false on “[p]rimarily medical evidence but also what was related to [him] about her
visit to California by family members” as well as McCullough‟s testimony. Id.
However, trial counsel did not introduce medical evidence even though such a report
existed, or the testimony of family members, or any other evidence to prove the falsity of
the California Claim.17 Id. at 125-126. McCullough‟s counsel also did not object when
the prosecutor, clearly improperly, referred to uncharged misconduct during closing
argument or during rebuttal when the prosecutor stated: “California, I wish I could
charge it, but that’s not my jurisdiction. I wish I could charge in California what he did
to her, what she testified that he did to her, what she told Diane Bowers that he did to
her.” Trial Transcript at 802 (emphasis added). Moreover, McCullough‟s trial counsel
did not request a limiting instruction or admonishment to indicate that the jury‟s use of
the evidence of the California Claim was limited to impeachment purposes. 18 See Ind.
Evidence Rule 105 (“When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another purpose is admitted, the
court, upon request, shall restrict the evidence to its proper scope and admonish the jury
accordingly.”). In this case, where the only direct evidence supporting the charges was
17
A medical report signed by Dr. Roberta Hibbard indicated her following impression of L.D.: “It
is my impression that [L.D.‟s] anogenital examination is within normal limits. This examination is
consistent with and neither supports nor negates concerns of sexual contact.” Petitioner‟s Exhibit 13.
When asked whether he concluded from the report that he did not have evidence of physical
manifestations of the California incident, McCullough‟s trial counsel stated: “Yes, within normal limits
indicated to me, lack of any major physical trauma you would expect. Again in conjunction with Mr.
Perkins, who had investigated these types of offenses and his familiarity with what should have been
present, had it been true. That seemed inconsistent.” Post-Conviction Transcript at 136-137. To the
extent that the reliance of McCullough‟s trial counsel on the medical report to support his belief in the
falsity of the California Claim was reasonable, he did not introduce the medical report at trial.
18
The post-conviction court did not explicitly address this issue in its conclusions of law.
42
the testimony of the accuser, it is highly probable that the jury drew the forbidden
propensity inference in reaching its verdicts. See Sundling v. State, 679 N.E.2d 988
, 992- 994 (Ind. Ct. App. 1997) (holding that the trial court erred by permitting testimony regarding uncharged acts of sexual misconduct by the defendant and that a substantial likelihood existed that the forbidden inference contributed to the verdict given that the only evidence of each instance of child molestation came from the victims), reh‟g denied; Tucker v. State,646 N.E.2d 972, 978
(Ind. Ct. App. 1995) (holding that trial counsel‟s
performance in failing to object, move to strike, or request an admonishment of the jury
with respect to the defendant‟s criminal history was deficient, and that it could not be said
that the references to the defendant‟s criminal history did not impact the jury‟s decision
where the evidence was not overwhelming, and reversing for a new trial).
Trial counsel‟s cross-examination of Bowers and Detective Faber consisted solely
of two questions to each. Specifically, trial counsel asked Bowers whether she personally
witnessed any of the allegations and whether she was “just going on what [L.D.] told
her.” Trial Transcript at 649. Similarly, the cross-examination of Detective Faber
consisted of asking her whether she was an eyewitness to any of the allegations against
McCullough and whether she had any personal knowledge about whether the allegations
occurred. Id. at 657. Among other questions that might have constituted adequate cross-
examination, trial counsel did not ask any questions which would have revealed that
Detective Faber 1) had not read the preliminary report of alleged child abuse or neglect
from Riley Hospital or Exom-Pope‟s 311 Report; 2) had not asked Sarah about a custody
dispute with McCullough regarding E.M. and M.M.; 3) did not discover that Sarah
43
allegedly failed to pay child support for E.M. and M.M.; 4) was not aware that Sarah
might be concerned about future arrests for non-support because she was expecting a
fourth child and had no steady employment; 5) was unaware that Sarah had applied for
public assistance for E.M. and M.M.; 6) attached no importance to the effects on L.D. of
Sarah‟s mental state, history of substance abuse, and attempted suicide; 7) was on notice
that L.D. had some problems but made no inquiry as to their nature; 8) was not concerned
about the time lapse between L.D.‟s first report to the grandmother and the first interview
nine weeks later; and, 9) did not inquire as to whether L.D. may have feared discipline
from McCullough for more recent behavior.
With respect to McCullough‟s arguments regarding his trial counsel‟s failure to
present expert testimony or to present evidence critical of the State‟s investigation, trial
counsel testified at the post-conviction hearing that he intended to raise the theory of false
memories and point out weaknesses in the testimony of Bowers and Detective Faber
through Perkins‟s testimony. After the trial court limited Perkins‟s testimony to
information that paralleled that provided by the State in its direct examination, trial
counsel did not argue that the court‟s ruling was erroneous, make an offer of proof
regarding Perkins‟s testimony, or present testimony that directly attacked the State‟s
investigation. At the post-conviction hearing, trial counsel indicated that he desired to
expose weaknesses in the State‟s investigation through Perkins, that this was a “critical
part” of the evidence, and that he thought the case was prejudiced by not presenting such
evidence. Post-Conviction Transcript at 256-257. At the oral argument held in this
appeal, the State acknowledged: “Marty Perkins‟ testimony got curtailed by the trial
44
court, I think probably incorrectly.” Oral Arg. at 00:21:40, available at
https://mycourts.in.gov/arguments/default.aspx?view=detail&id=1345. The State also
conceded that McCullough‟s trial counsel should have made an offer of proof and that his
performance in that respect was below the standard of reasonableness based on prevailing
professional norms. Id. at 00:21:50.
McCullough also argues that his trial counsel was ineffective for failing to call
E.M. as a witness and failing to present evidence of Sarah‟s motives. Specifically,
McCullough argues that E.M. “would have provided a basis for inferring that Sarah had
induced L.D. as well as E.M. falsely to accuse McCullough of sexual molestation.”
Appellant‟s Brief at 34-37. McCullough argues that “[p]roof that Sarah induced E.M. to
bring false charges against her father is circumstantial evidence that she may have
engaged in similar behavior with L.D.” Id. at 35. McCullough asserts that evidence of
Sarah‟s personal and financial motives to wrest custody of E.M. and M.M. from
McCullough was available to trial counsel and that this evidence provided a motive to
induce L.D. to accuse McCullough of sexual misconduct. He argues that “[h]ad defense
counsel presented the available evidence of Sarah‟s motives falsely to induce charges
against [McCullough], plus her attempt to induce E.M. to claim that [McCullough] had
abused her, the trial court would have been bound constitutionally to permit the evidence
to be heard.” Id. at 36-37. McCullough contends that “[h]ad the jury been so informed
there is a reasonable probability that the outcome of the trial would have been different.”
Id. at 37.
45
The State argues that E.M.‟s testimony would have been inadmissible as it would
have been entirely based on hearsay. The State also argues that the relevance of E.M.‟s
testimony is tenuous at best because E.M. “would have been testifying about statements
made to her by her mother in an unrelated case and [McCullough] would have been
asking the jury to infer from the communication between E.M. and Sarah that a similar
conversation occurred between L.D. and Sarah.” Appellee‟s Brief at 24. In his reply
brief, McCullough argues that “the statements attributed to Sarah by E.M. were not
hearsay, but were verbal acts (words having independent legal significance apart from
their truth) constituting an attempt to induce E.M. to bear false witness against her
father.” Appellant‟s Reply Brief at 17.
To the extent that the State suggests that E.M.‟s testimony would not have been
relevant, I disagree. The record reveals that L.D.‟s sister E.M. was told by Sarah that
McCullough had touched her inappropriately, that E.M. raised allegations that
McCullough molested her after she was placed in Sarah‟s custody, and that E.M. recanted
the allegations shortly before trial. Under the circumstances, I cannot say that this
evidence is irrelevant. With respect to the State‟s argument that E.M.‟s testimony would
constitute inadmissible hearsay, I also disagree. See 13 MILLER, INDIANA PRACTICE §
801.305 (“Verbal conduct to which the law attaches legal significance, such as the
contract on which suit is based, is not hearsay, although it is an out-of-court declaration. .
. . Such evidence is offered to prove that the statements were made, rather than to prove
the truth of the statements; hence the evidence is not hearsay.”).
46
McCullough‟s trial counsel testified at the post-conviction hearing that E.M.‟s
allegations against McCullough arose for the first time after she was removed from
McCullough‟s custody and placed in Sarah‟s custody, that trial counsel was aware that
E.M. had recanted her allegations against McCullough, and that the case against
McCullough involving E.M. was dismissed. Trial counsel indicated that he was more
prepared to try the case involving E.M. than the case involving L.D. when E.M.‟s case
was dismissed. Trial counsel also indicated that he had access to therapy notes prepared
by E.M.‟s counselor which gave him some information as to whether there may have
been improper influence with respect to E.M. When asked why this evidence was never
presented at trial, McCullough‟s trial counsel indicated that he had no tactical
explanation.
During direct examination, McCullough‟s post-conviction counsel asked trial
counsel about an arrest warrant for Sarah issued about a month before the allegations
made by L.D. based upon a contempt citation for her failure to pay support for E.M. and
M.M., and trial counsel admitted that this evidence might have suggested a retaliatory
motive for Sarah. Trial counsel also testified that he believed that Sarah “almost
certainly” blamed McCullough for the writ body attachment warrant, and stated that he
did not have a tactical explanation for not introducing evidence involving possible
improper influence by Sarah on E.M. Post-Conviction Transcript at 145.
Additionally, trial counsel failed to tender or object to the trial court‟s failure to
give the instruction mandated by Ind. Code § 35-37-4-6
(h) regarding the jury‟s
evaluation of hearsay statements received pursuant to the Protected Person‟s Statute. The
47
State relied heavily on the statements of the grandmother and the recorded video
emphasizing their consistency with L.D.‟s trial testimony. The prosecutor argued that the
grandmother‟s hearsay evidence supplied corroboration of L.D.‟s trial testimony. Trial
counsel testified he was aware of the statute and had no tactical reason to explain his
omission.
While some of the errors by trial counsel may not individually be sufficient to
prove ineffective representation, when viewed cumulatively counsel‟s overall
performance fell below the prevailing professional norms, and in light of the fact that the
State‟s case rested almost entirely on L.D.‟s statements, there is a probability sufficient to
undermine confidence in the outcome that, but for trial counsel‟s errors, the result of the
proceeding would have been different. Thus, I conclude that McCullough was denied the
effective assistance of counsel. See Smith v. State, 511 N.E.2d 1042, 1046
(Ind. 1987) (“In the case before us the accumulation of errors mandates a finding of ineffective assistance.”); Williams v. State,508 N.E.2d 1264, 1268
(Ind. 1987) (“It is the
compilation of errors and omissions by counsel which creates the necessity for reversal in
this case.”).
For the foregoing reasons, I respectfully dissent and would reverse the post-
conviction court‟s denial of McCullough‟s petition for relief.
48