Augustus Mendenhall v. State of Indiana

The parties to this case have a long and storied past. In 1983, Burke

Mendenhall (Burke), a real estate developer and Mendenhall’s father, leased

property within the Lafayette Square region in Indianapolis to a tenant who

planned to open an adult bookstore. Edward DeLaney, an attorney and current

member of the Indiana House of Representatives, was working for the firm of

Barnes & Thornburg2 during this period. DeLaney filed a lawsuit on behalf of



1 Prior to this post-conviction appeal, we handed down an opinion from a direct criminal appeal by Mendenhall in which he argued that his five convictions should be overturned. Mendenhall v. State, 963 N.E.2d 553 (Ind. Ct. App. 2012). We affirmed all the convictions, but we remanded with instructions to reduce Mendenhall’s robbery conviction to a Class C felony. Id. at 573. 2 In 1983, the firm was called Barnes, Hickman, Pantzer & Boyd.

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his client, the DeBartolo Corporation, which owned Lafayette Square Mall and

initially sold the Lafayette Square property to Burke. The DeBartolo

Corporation sought an injunction to bar Burke’s tenant from opening the adult

bookstore.

[4] This litigation placed a huge financial strain on Burke and his family. Burke

frequently informed Mendenhall about his ongoing legal and pecuniary woes

and about how much he despised DeLaney.

[5] Mendenhall believed his father and carried this hatred for DeLaney with him

into adulthood. In October 2009, Mendenhall, an attorney himself, posed as

Victor White, a fictitious individual who claimed to represent Russian

businesspeople who were interested in buying real estate in Carmel.

Mendenhall, while posing as Victor White, contacted DeLaney and asked if he

would be interested in representing these businesspeople in their transactions.

DeLaney stated that he would potentially advise them given his fluency in the

Russian language; the two met on October 31, 2009, at a church on North

Meridian Street. DeLaney and Mendenhall drove together to the area in

Carmel that Mendenhall’s “clients” were interested in.

[6] While riding in DeLaney’s car, Mendenhall asked him to abruptly stop the

vehicle, pulled out a gun wrapped in a plastic bag, and pointed it at DeLaney.

Mendenhall then asked DeLaney a series of questions about whether DeLaney

had a good relationship with God and if he had ever used the legal system to

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hurt people. At that point, DeLaney’s vehicle was stopped in a neighborhood in

Carmel.

[7] Soon thereafter, a car pulled up, and Kathy Palmer, a former secretary at

Barnes & Thornburg whom DeLaney knew, and her husband asked if

something was wrong. DeLaney kept strangely pointing and winking to

indicate that he was in trouble. Concerned, the Palmers left and decided to call

911.

[8] Mendenhall directed DeLaney to park the car behind a row of trees and bushes.

DeLaney escaped the car and slammed the door on Mendenhall. Mendenhall

got out of the car, tackled DeLaney, and pinned him down to the ground.

Mendenhall proceeded to beat DeLaney on the right side of his head.

[9] Carmel Police Officers David Kinyon and James Herron responded to the

Palmers’ 911 call. The officers found Mendenhall beating DeLaney, identified

themselves as police officers, and exited their vehicles to stop the altercation.

Mendenhall attempted to flee but was struck in the back by Officer Kinyon’s

taser three times. The officers arrested Mendenhall. DeLaney suffered

significant injuries from Mendenhall’s attack, including multiple fractures to his

eyes and ribs.

[10] The State charged Mendenhall with Class A felony attempted murder, Class A

felony robbery resulting in serious bodily injury, Class B felony aggravated

battery, Class B felony criminal confinement, and Class A misdemeanor

resisting law enforcement.

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[11] The trial court appointed an attorney to represent Mendenhall at trial. His

counsel raised two defenses at his September 8, 2010, trial: (1) that Mendenhall

was completely innocent and never intended to kill DeLaney; and, if the jury

did not accept the first defense, (2) that mental illness rendered Mendenhall

unable to appreciate the wrongfulness of his actions.

[12] During the voir dire phase of the trial, the prosecution referred to the possibility

that Mendenhall was feigning his mental illness like the film character Ferris

Bueller. PCR Tr. Vol. II p. 132-33. The prosecution also alluded to a case where

a man claimed to be legally insane because he overconsumed Twinkies. Id. The

trial lasted eight days and consisted of long diatribes, a frustrated judge, and a

constant battle to lay the foundation for different expert witnesses and to admit

their respective testimonies. Id.

[13] On September 16, 2010, the jury found Mendenhall guilty but mentally ill on all

five counts. The trial court sentenced him to forty years’ incarceration; on

appeal, this Court reduced Mendenhall’s robbery conviction to a Class C felony

but otherwise affirmed the trial court’s judgment. Mendenhall, 963 N.E.2d at

573.

[14] On November 5, 2013, Mendenhall filed an amended petition for post

conviction relief, alleging that his counsel had been ineffective. He maintains

that he was deprived of his Sixth and Fourteenth Amendment rights to a fair

trial, an impartial jury, and proper legal representation. A post-conviction relief

evidentiary hearing took place on October 12, 2017, at which Mendenhall

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requested a new trial. On January 2, 2018, the post-conviction court denied his

request for relief. Mendenhall now appeals.

Discussion and Decision



I. Standard of Review



[15] Mendenhall appeals the denial of his request for post-conviction relief, arguing

that he was denied the effective assistance of counsel during his trial. He asserts

that any one of his claims evaluated either individually or in the aggregate

denied him his Sixth Amendment rights to a fair trial, an impartial jury, and

proper legal representation. See Williams v. State, 508 N.E.2d 1264, 1268 (Ind.

1987) (holding that “while each error of counsel individually may not be

sufficient to prove ineffective representation, an accumulation of such failures

may amount to ineffective assistance”). He puts forward three major claims on

review:3 (1) that counsel failed to object to prosecutorial misconduct; (2) that



3 Mendenhall claims upwards of twelve to thirteen instances of ineffectiveness of counsel, many of which lack cogency and/or merit. Arguments that we reject outright are as follows: (1) Counsel’s failure to object to DeLaney’s supposed perjured statements. Mendenhall has waived this issue because he failed to raise it in his amended petition for post-conviction relief. PCR App. Vol. II p. 74-79. See Allen v. State, 749 N.E.2d 1158, 1167 (Ind. 2001). The post-conviction court made no findings of fact or conclusions law regarding this issue, so we decline to address it in this appeal. (2) Counsel’s failure to disclose a supposedly “exculpatory” chapter from the book Fight Club. Though Mendenhall claims this information is material, we find it simply extraneous and unavailing. (3) Counsel’s failure to object to the order of witness testimony. We already decided, adversely to Mendenhall, that not only did he waive any claim regarding order of witnesses but also that any argument put forth was unpersuasive. Mendenhall, 963 N.E.2d at 566-69. Issues raised on direct appeal, and decided adversely, are res judicata, and not available in post-conviction proceedings.

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counsel failed to object to alleged judicial misconduct; and (3) that counsel

failed to elaborate on potential defenses and to request proper jury instructions.

[16] For post-conviction proceedings, the petitioner bears the burden of establishing

grounds for post-conviction relief by a preponderance of the evidence. Helton v.

State, 907 N.E.2d 1020, 1023 (Ind. 2009). A petitioner must show that the

evidence unerringly and unmistakably leads to a conclusion opposite that

reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917

(Ind. 1993).

[17] For a claim of ineffective assistance of counsel, we use a two-part test. To

satisfy the first prong, the defendant must show deficient performance:

representation that fell below an objective standard of reasonableness,

committing errors so serious that the defendant did not have the “counsel”

guaranteed by the Sixth Amendment. Humphrey v. State, 73 N.E.3d 677, 682

(Ind. 2017); see generally Strickland v. Washington, 466 U.S. 668 (1984). To satisfy



Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001); see also Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). (4) Counsel’s failure to call expert witness Dr. Karen Fuller to present potentially exculpatory evidence. Mendenhall has waived this issue because he failed to raise it in his amended petition for postconviction relief. PCR App. Vol. II p. 74-79. See Koons v. State, 771 N.E.2d 685, 691-92 (Ind. Ct. App. 2002). The post-conviction court only briefly mentioned and dismissed this issue, so we decline to address it in this appeal. (5) Counsel’s failure to thoroughly question Mendenhall about his true motive and intent. Though Mendenhall claims that counsel failed to let him testify about what his true motives were, he offers no evidence that counsel’s questioning—or alleged lack thereof—severely tarnished his image to the jury. Therefore, we decline to address it now. This is simply another argument that attempts to circumvent the wide latitude given to counsel in terms of how he questions or does not question his witnesses.

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the second prong, the defendant must show prejudice: a reasonable probability

(i.e., a probability sufficient to undermine confidence in the outcome) that, but

for counsel’s errors, the result of the proceeding would have been different. Id.

[18] There is already a strong presumption that an attorney exercises adequate

judgment in his representation, and we are reluctant to second-guess the

professional decisions and strategic choices of counsel in hindsight. See

Pennycuff v. State, 745 N.E.2d 804, 811 (Ind. 2001). Any judicial scrutiny of

counsel’s performance is highly deferential, and poor strategy or tactics utilized

by counsel during trial do not necessarily constitute ineffectiveness. Id.

II. Prosecutorial Misconduct

[19] Mendenhall first argues that his defense counsel did not properly object to

alleged prosecutorial misconduct. We will first determine if there was actual

prosecutorial misconduct. If there was no misconduct, then there is no merit to

Mendenhall’s claim that counsel should have objected.

[20] To show prosecutorial misconduct, the defendant must show that the alleged

misconduct (1) constituted a clearly blatant violation of basic and elementary

principles of due process; (2) presented an undeniable and substantial potential

for harm; and (3) made a fair trial impossible. Washington v. State, 902 N.E.2d

280, 290 (Ind. Ct. App. 2009). Moreover, the alleged misconduct must have

subjected the defendant to grave peril and had a probable persuasive effect on

the jury’s decision. Id.

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A. Voir Dire

[21] First, Mendenhall argues that statements made by the prosecution during voir

dire rise to the level of misconduct. To Mendenhall, the prosecution

indoctrinated members of the jury by alluding to “Ferris Bueller,” “Twinkies,”

and the possibility that Mendenhall was faking his mental illness. We find this

argument unavailing.

[22] It can hardly be said that the prosecution’s statements constituted a blatant

violation of basic and elementary principles of due process. During voir dire,

the State’s attorney is not permitted to try the case or engage in questioning that

is “clearly improper [or] . . . calculated to prejudice [a] fair trial[].” Robinson v.

State, 297 N.E.2d 409, 411 (Ind. 1973). Here, however, the prosecution was

highlighting Mendenhall’s claim that he suffered from a mental illness. This

was a reasonable strategy on the part of the prosecution to determine how

potential jurors felt about insanity pleas and mental illness in general rather

than a plan to prejudice the jurors.

[23] Furthermore, there is no evidence to conclude that raising these points during

voir dire presented an undeniable and substantial potential for harm. In fact, the

jury ultimately returned a conviction of guilty but mentally ill, demonstrating

that the jury was persuaded enough to designate Mendenhall as mentally ill

when he committed his actions. If anything, the prosecutor’s comments added

to the trial’s overall discussion about mental illness, and there is no compelling

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evidence that such comments made a fair trial impossible. As such, defense

counsel was not ineffective for failing to object during voir dire.

B. Opening and Closing Statements

[24] Second, Mendenhall claims that certain comments made by the prosecution

during its opening and closing statements constituted misconduct.

[25] Mendenhall points to the incorrect statements the prosecution made about how

DeLaney saw a “double-feed malfunction” from the gun while inside the car.

Appellant’s Br. p. 26. This assertion was unsubstantiated and later proven to be

incorrect. Mendenhall cites potential violations of professional conduct and

evidentiary rules, but we are tasked with evaluating whether this erroneous

stunt made by the prosecutor blatantly violated Mendenhall’s due process rights

and made it impossible for him to have a fair trial. We cannot say that it did.

There is no indication that this lone comment unfairly shifted the jury or so up

ended the legal proceedings that Mendenhall was placed in grave peril.

Therefore, the statement did not amount to misconduct and counsel was not

ineffective for failing to object.

[26] Mendenhall also argues that peculiar references made by the prosecution in its

closing and rebuttal statements rose to the level of misconduct. These references

include images of the September 11, 2001, terrorist attacks, child marriages in

Yemen, female infanticide in India and China, and child prostitution in

Honduras. Trial Tr. p. 1041, 1044. While bizarre and seemingly unrelated to

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the facts of the case at hand, there was no misconduct in making these

statements. The prosecution mentioned the 9/11 attacks in response to

comments made by the defense in its closing statement referencing the same

event. Id. at 1028. Prosecutors can respond to allegations and inferences raised

by the defense even if the prosecutor’s response would otherwise be

objectionable. Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006).

[27] The comments the prosecution made about infanticide, child marriages, and

child prostitution, while strange and tangential in nature, also did not amount

to misconduct. The prosecution referenced those horrific things to talk about

morality, the need to abide by the rule of the law, and how Mendenhall, as an

attorney, should have known better than to commit attempted murder. While

these comments no doubt casted a shadow on Mendenhall’s character, and we

encourage prosecutors to exercise more restraint than what occurred here, the

statements did not deprive him of a fair trial.

[28] Notwithstanding the fact that there was no legitimate prosecutorial misconduct,

the standard for determining if trial counsel was ineffective for failure to object

is whether the trial court would have been required to sustain the objection had

one been made, or, conversely, whether the trial court would have committed

prejudicial error if it overruled the objection. Ross v. State, 877 N.E.2d 829, 835

(Ind. Ct. App. 2007). At no moment during either voir dire or the opening and

closing phases of the trial would the trial court have been required to sustain an

objection—had one been made—to the prosecutor’s statements. Mendenhall’s

argument fails on this front as well.

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[29] Most importantly, counsel admitted that he did not object to any alleged

prosecutorial misconduct throughout the trial because he thought it was

“impolite,” PCR tr. vol. II p. 121, and because it was not his style. Once again,

we defer heavily to the tactics and strategies employed by counsel at the time of

trial, and we begin with the presumption that counsel adequately represents his

client to the best of his abilities.

[30] We cannot conclude that any of the actions committed by the prosecution

amounted to prosecutorial misconduct. Therefore, counsel was not ineffective

by not objecting to highlighted statements of the prosecutor.

III. Judicial Misconduct



[31] Mendenhall next argues that counsel did not properly object to perceived

judicial bias from the judge presiding over his trial. Mendenhall claims the

judge repeatedly made inappropriate comments, showed “disdain” and hostility

in demeanor, appellant’s br. p. 38, and uniformly agreed with the State’s

position and wholly disagreed with the defense’s position.

[32] As with prosecutorial misconduct, we will first determine if there was judicial

bias or misconduct. If there is no showing of judicial misconduct, it cannot be

found that counsel was ineffective for failing to object.

[33] A trial before an impartial judge is an essential element of due process. Everling

v. State, 929 N.E.2d 1282, 1287 (Ind. 2010). To determine if a trial judge is

impartial, we will examine “the judge’s actions and demeanor while

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recognizing the need for latitude to run the courtroom and maintain discipline

and control of the trial.” Id. at 1288; see, e.g., Timberlake v. State, 690 N.E.2d 243

(Ind. 1997). A defendant’s due process rights have been violated if he can show

multiple instances of judicial partiality or misconduct. Stellwag v. State, 854

N.E.2d 64, 69 (Ind. Ct. App. 2006). With this standard in mind, we find that

there was no judicial misconduct present during Mendenhall’s trial.

[34] One of the defense’s expert witnesses was Dr. Solomon Fulero. Mendenhall

complains that certain comments made by the judge when the defense was

establishing Dr. Fulero’s background were partial and only served to undermine

the expert witness’s credibility. For one, the judge understandably grew

impatient with the doctor and asked if Dr. Fulero “[w]ould . . . just answer the

question.” Trial Tr. p. 754. Also, the judge appeared to snap at counsel when he

did not accurately hear something that the judge said at some point, saying,

“One more crack like that and I’ll sanction him in front of the jury,” and, “I

don’t appreciate your little episode.” Trial Tr. p. 805. While these comments

might seem inflammatory in hindsight, they can hardly be said to arise to the

level of judicial misconduct.

[35] As we have already discussed, judges are given wide latitude in running their

courtrooms and in maintaining proper decorum, and we are hesitant to second

guess a judge’s actions when conducting a trial. Thus, the trial judge for

Mendenhall’s criminal trial was well within his right to snap at witnesses who

avoided attorneys’ questions and to criticize behavior that the judge saw as out

of-line.

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[36] More to the point, Mendenhall offers no evidence that the judge’s behavior so

unfairly deprived Mendenhall of a fair and impartial trial aside from his own

gut feelings that the judge’s actions demonstrated agreement with the State’s

position on every matter. Though he claims that the judge displayed obvious

disdain and antipathy towards the defense’s witnesses, appellant’s br. p. 38,

Mendenhall cannot prove that the jury or even the trial overall was so unfairly

colored by the judge’s attitude that he was deprived of due process.

[37] Mendenhall points us to Kennedy v. State, 258 Ind. 211, 280 N.E.2d 611 (1972),

to demonstrate what true judicial partiality looks like. Mendenhall argues that

the case is not only illustrative, but also bears a striking similarity to what

happened during his trial. In Kennedy, the judge repeatedly examined the expert

witness with relentless questions about his credentials and ability to testify

accurately. Id. at 217, 280 N.E.2d at 615. We determined that the judge’s

method of questioning casted serious doubts as to the witness’s credibility due

to the judge’s highly argumentative manner. In effect, the judge “lost his

appearance of impartiality . . . [and] removed his robes and donned the cap of

the prosecutor.” Id. at 222, 280 N.E.2d at 618. This sort of questioning and

clear lack of judicial impartiality in the presence of the jury simply did not

happen in the instant case. At most, the judge understandably became frustrated

on several occasions and grew agitated primarily with the attorneys who

delayed in laying the foundation for their witnesses. The judge did not agree

uniformly with the State’s position by donning any prosecutorial cap, and he

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certainly did not wholly dismiss the arguments and evidence proffered by the

defense.

[38] For the foregoing reasons, we conclude that there was no judicial bias that

would have deprived Mendenhall of his due process rights. Therefore, any

claim that counsel was ineffective by not objecting to perceived claims of

judicial bias is unavailing.

IV. Counsel’s Failures

[39] Mendenhall finally argues that counsel failed at three specific moments to

elaborate on potential defenses and to request the proper jury instructions.

Specifically, Mendenhall claims that: (1) counsel failed to ask for a jury

instruction regarding whether the gun safety was off; (2) counsel failed to bring

up a certain defense after introducing the idea in his opening argument; and (3)

counsel failed to request an instruction on the definition of “wrongfulness” for

the jury. We will address each claim in turn.

[40] First, one of Mendenhall’s defenses was that his gun safety was on during the

altercation, showing that he did not intend to kill DeLaney. He claims that

counsel should have asked for a jury instruction regarding whether the gun

safety was off.

[41] While Mendenhall is correct in pointing out that a criminal defendant is

entitled to have a jury instruction on any theory or defense which has some

foundation in the evidence, Toops v. State, 643 N.E.2d 387, 389 (Ind. Ct. App.

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1994), the decision of whether to request that jury instruction lies solely with

the attorney proposing it. To show ineffectiveness of counsel, Mendenhall must

show us that counsel’s representation on this point fell below a level of objective

reasonableness. We hold that it does not. At no point is an attorney required to

request a certain jury instruction regarding a minor point of his or her case.

Counsel stated that he was not aware that such a jury instruction was available,

PCR tr. vol. II p. 108, and it cannot reasonably be said that his lack of

awareness of this fact so unduly prejudiced Mendenhall’s case that the jury was

swayed another way. Furthermore, a reasonable juror would know what a

safety is and what it means for a gun to have the safety on, so this lack of a jury

instruction was not a lynchpin that would ultimately make or break

Mendenhall’s defense.

[42] Second, counsel introduced the concept of a “deific decree defense” in his

opening argument. This is a defense for when the person who committed the

crime claims that God ordered him to do it. Id. at 149. Mendenhall claims that

counsel was ineffective because he failed to readdress this defense after initially

introducing the idea. Mendenhall argues that by not returning to a specific

mental insanity defense that was mentioned in his opening statement, counsel,

in effect, abandoned any discussion of mental insanity and then unfairly

prejudiced Mendenhall because the jury would not consider deific decree as a

possibility. However, throughout the trial, counsel attempted to paint

Mendenhall as a mentally unstable individual whose delusions about God and

morality led him to commit these acts.

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[43] Moreover, there is no definitive legal standard that compels an attorney to

return to arguments or claims made in an opening argument lest he be deemed

ineffective in his representation. Mendenhall would have us impose on all

attorneys a requirement to refer to every argument made in an opening

statement. Not only do we refuse to do so, but such an imposition contravenes

the principle that we defer to attorneys who know what is best for their clients.

Counsel even admits that the deific decree defense was probably not a good

defense to pursue because it was “not accepted very much.” Id. As such, we

defer to counsel and assume that he made a reasonable judgment to abandon

the deific decree defense

[44] We also note that Mendenhall was not prejudiced by counsel’s perceived

omission. The jury returned a guilty but mentally ill verdict on all counts,

meaning the jury accepted counsel’s overall proposition that Mendenhall

suffered from delusions that led him to almost killing DeLaney. Absent

mention of the deific decree defense, counsel’s overall argument neither

benefitted nor disadvantaged Mendenhall since his criminal sentence would

have been the same no matter how the jury classified him.4

[45] Finally, an insanity defense depends on whether the defendant appreciates the

wrongfulness of his actions. Galloway v. State, 938 N.E.2d 699, 717 (Ind. 2010).

Mendenhall claims that counsel was ineffective because he failed to request an



4 See Ind. Code § 35-36-2-5(a).

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instruction on the definition of “wrongfulness” for the jury. He argues that he

was “undoubtedly prejudiced by the failure to define wrongfulness,” appellant’s

br. p. 58, because the jury would have been confused as to whether

wrongfulness meant being legally or morally wrong.

[46] Here, there is no evidence to suggest that the jury determined that

“wrongfulness” was synonymous with “illegal.” The defense presented

numerous expert witnesses who testified to Mendenhall’s mental state and how

he felt morally bound to do something about DeLaney and the alleged pain this

man inflicted upon his family. The jury could have clearly discerned from this

presentation that wrongfulness equated with moral wrongfulness and more than

just illegal conduct. There is no definitive evidence or legal standard that would

lead us to believe that this omission of a clearer definition of wrongfulness

unduly prejudiced Mendenhall nor that counsel was ineffective as an attorney

for failing to request such an instruction.

No evidence leads us to a conclusion opposite that reached by the post

conviction court; there was no ineffectiveness of counsel that deprived

Mendenhall of his Sixth Amendment rights to a fair trial, an impartial jury, or adequate representation of counsel either in any individual claim or in the

aggregate.