David, J.
In this murder case, defendant alleges counsel was ineffective in several ways. However, reviewing the facts and circumstances here, we find that counsel was not ineffective and affirm the post-conviction court.
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Bradbury then sought post-conviction relief alleging that his trial counsel was ineffective in various respects. The post-conviction court denied Bradbury’s petition, and a split Court of Appeals appellate panel reversed. The majority focused on just two claims of ineffective assistance: 1) whether counsel was deficient for stipulating that Griffin was convicted of murder as the principal (thus conceding that Griffin had the requisite intent to kill); and 2) whether counsel was ineffective for failing to request that the jury be instructed on lesser-included offenses. The majority found that counsel should not have agreed to the stipulation and should have sought an instruction on lesser included offenses and that counsel’s failures prejudiced Bradbury (but does not explain how).
Judge Vaidik dissented. She would affirm the trial court citing the standard of review and noting that while it is possible to read the record the way the majority did, she did not see it that way. She further noted that she agreed with the post-conviction court that counsel’s decisions were strategic and noted evidence in the record not favorable to Bradbury that makes it less than clear that a new trial would produce a different result. For instance, there were multiple witnesses whose testimony supported Griffin’s intent to kill and thus, not stipulating to it would not be helpful and further, given this evidence, a lesser included instruction would not be appropriate either.
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In order to convict Bradbury of murder as an accomplice, the State was required to prove beyond a reasonable doubt that Bradbury, acting with the intent to kill his rival, knowingly aided, induced, or caused Griffin to commit the crime of murdering toddler J.S. Bradbury’s counsel stipulated to the fact that Griffin was convicted of murder. Bradbury and the Court of Appeals majority fault counsel for this decision, believing it undercut Bradbury’s case and made it easier for the State to meet its burden of proof regarding Bradbury.
At an evidentiary post-conviction hearing, Bradbury’s lead trial counsel testified that he agreed to stipulate to Griffin’s conviction even though he believed the evidence could have been kept out because he did not want the jury to believe that if Bradbury were acquitted “this child died without anybody facing the music.” PCR Tr. Vol. 4 at 20. He further stated: “[w]e were arguing that Mr. Griffin was acting on his own without any consultation or assistance from [Bradbury]. So [we] thought the fact that he had been convicted kind of supported that proposition.” Id. at 21. Co-counsel articulated another reason for the stipulation as well. That is, Bradbury had initially confessed that he was the shooter and thus, the stipulation served to show that it was a false confession. Id. at 58-59.
More importantly though, this stipulation does not speak at all to Bradbury’s intent, which the State still had to prove. While certainly counsel did not have to stipulate to Griffin’s intent, this stipulation did not relieve the State of the burden to prove Bradbury’s intent. Bradbury asserts he tried to stop the shooting, and lead counsel testified emphatically and repeatedly that this was what he wanted to get across to the jury any way he could. The stipulation in no way forecloses or contradicts that theory of the case. Thus, we find the Court of Appeals majority’s conclusion that the stipulation “wholly undercut” the defense is inaccurate in light of Bradbury wanting not just to get a lesser conviction/sentence, but not wanting to be convicted at all. It seems counsel’s strategy was to put some daylight between Bradbury and the shooter and only in retrospect, when the shooter and Bradbury were both convicted, does that seem to not have been the ideal plan. Nevertheless, counsel was not ineffective here. He articulated his thought process for agreeing to stipulate, and doing so was not illogical or absurd. Further, the standard review requires that we affirm unless “there is no way within the law that the court below could have reached the decision it did.” Stevens, 770 N.E.2d at 745.
Further, as for prejudice, Bradbury “must show a reasonable probability that, but for counsel’s errors, the proceedings below would have resulted in different outcome.” Wilson, 157 N.E.3d at 1177. “A reasonable probability is probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984). As Judge Vaidik noted in her dissent, there is a quite a bit of evidence here to support a finding that Griffin had the intent to kill given that several witnesses, including the intended victim, testified about how Griffin shot many times at the intended victim. So even if Bradbury’s counsel had not agreed to the stipulation, Griffin’s intent likely would have been proven. Thus, there would be no difference in the outcome.
Bradbury also claims that his attorneys were ineffective for failing to seek lesser alternatives to a murder conviction. According to Bradbury, he would have been entitled to a jury instruction on reckless homicide as an accomplice to Griffin if his counsel had sought it. Further, he testified that counsel did not discuss the matter with him and had counsel done so, he would have wanted the instruction. Although lead trial counsel could not remember his exact thought process at the time of trial, he testified that he did not submit a lesser included instruction because he did not believe that it was supported by the evidence. He also testified that he typically would seek a lesser included instruction if it were warranted. But here, his theory of the case was that the State didn’t sufficiently prove Bradbury’s intent, and more importantly it was counsel’s position that: it was rogue action by Griffin that [Bradbury] did not contribute to and did not join and did not have any knowledge; if Griffin did have specific intent that [Bradbury] never had that intent beforehand because for Christ’s sake he tried to stop it and the victim said that he did. PCR Tr. Vol 4 at 28-29. Counsel expressed doubt that this theory was compatible with seeking a lesser included.
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Here, counsel made a reasonable decision given the circumstances. As stated above, counsel sought to have the jury find that Bradbury was innocent. That is, Bradbury tried to stop the shooting and Griffin, the shooter, acted despite this. As this Court has previously held, “[i]t is not sound policy for this Court to second-guess an attorney through the distortions of hindsight.” Autrey, 700 N.E.2d at 1141. Further, “[t]he all or nothing strategy employed by counsel was appropriate and reasonable based on the facts in this case.” Id. Indeed, here a reasonable juror could have found that despite Griffin’s action, Bradbury was not an accomplice because he tried to stop the shooting as counsel argued throughout trial. The fact that the jury decided otherwise does not mean that counsel was ineffective. To so hold would open the door to every unfavorable verdict being challenged and/or overturned on ineffective of assistance of counsel grounds.
We also find no prejudice here. Tendering the lesser included instruction would have given the jury another option to convict Bradbury. As the State correctly notes, Bradbury was unlikely to be acquitted of a lesser charge in light of the evidence that the shooting was not just reckless, but intentional, as well as Bradbury’s own repeated admissions of responsibility. As such, he was not prejudiced by counsel not seeking a lesser included instruction.
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Bradbury argues that counsel was ineffective by not using a defense witness’ prior consistent statement to rehabilitate that witness during trial. However, as noted above, counsel is afforded considerable discretion in choosing a trial strategy and further, a post-conviction court can only be reversed if there is no way under the law such a result can be reached. Here, rather than using the witness’ prior statement, which took the form of a recording that was hard to hear, counsel rehabilitated the witness with his own trial testimony. This is a reasonable trial strategy and Bradbury has not demonstrated counsel was ineffective here, nor that there was no way within the law this outcome could be reached.
Additionally, Bradbury argues that counsel was deficient for not raising a constitutional challenge at trial. That is, that Indiana’s criminal gang enhancement is vague. However, Bradbury has not demonstrated a reasonable probability that this argument would have succeeded.
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While Bradbury has argued it is hard to defend a criminal gang enhancement charge, posited some hypotheticals about what may or may not be included in the statutory definition and indicated that the State’s inclusion of video evidence of him rapping was prejudicial, he has not demonstrated that a person of ordinary intelligence cannot comprehend the statute, nor has he pointed to any evidence that the statute is vague as applied to him. For these reasons, we cannot say that there is a reasonable probability that there would have been a different outcome for Bradbury had counsel raised this constitutional challenge. As such, we find no ineffective assistance of counsel here either.
We affirm the post-conviction court.
Massa and Slaughter, JJ., concur.
Massa, J., concurs with separate opinion in which Slaughter, J., joins.
Goff, J., dissents with separate opinion in which Rush, C.J., joins.
Massa, J., concurring.
Not only was counsel here not constitutionally “ineffective,” he was, in fact, extraordinarily effective, actually persuading the trial court to heighten the prosecution’s burden, allowing him to pursue a reasonable and permissible all-or-nothing trial strategy. That this clever and resourceful lawyering proved unsuccessful does not mean a violation of Strickland occurred.
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Stipulating to the principal’s conviction and culpability was critical to counsel’s trial strategy, especially once he was able to convince the court to commit instructional error to his client’s significant benefit. It practically foreclosed—reasonably, if not successfully—asking for a lesser included instruction, an omission the dissent finds to be reversible error. One might second guess this strategic decision and assert that counsel would have been better off contesting the shooter’s culpability and then asking for a lesser included instruction. Counsel could have employed a strategy that potentially led to his client being convicted of something less than murder. Or, armed with a jury instruction that overburdened the prosecution, he could argue that his client never meant for the shooter to kill anybody, and gain a full acquittal. There are “countless ways to provide effective assistance in any given case” and even the “best criminal defense attorneys would not defend a particular client in the same way.” Strickland v. Washington, 466 U.S. 668, 689 (1984). That his defense strategy was unsuccessful does not mean it was unreasonable.
“It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, that a particular act or omission of counsel was unreasonable.” Id. A fair assessment of attorney performance requires that “every effort be made to eliminate the distorting effects of hindsight,” and because of the difficulties inherent in making this evaluation, judicial scrutiny of counsel’s performance must be “highly deferential.” Id. Bradbury cannot overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. And even if he could, how can he show a reasonable probability of a different result? The jury convicted him of murder with a specific intent to kill, why would they have found him guilty of reckless homicide? Defense counsel’s performance here was something to compliment, not second-guess.
Slaughter, J., joins.
Goff, J., dissenting.
I respectfully dissent.
The Court holds that counsel was not ineffective (1) for stipulating, at Bradbury’s trial for murder as an accomplice, to the principal actor’s underlying conviction in the crime; and (2) for failing to request a lesser-included instruction. Because counsel sought to avoid suggesting to the jury that an acquittal would result in no accountability for the murder, I agree with the Court that counsel’s stipulation was reasonable trial strategy. But because counsel failed to consult with Bradbury on whether to request a lesser-included instruction, and because Strickland imposes on counsel a specific duty to “consult with the defendant on important decisions” at trial, I would find counsel’s performance deficient. And because this deficient performance resulted in prejudice to Bradbury, I would find ineffective assistance of counsel.
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Bradbury contends that, had counsel requested it, he would have been entitled to an instruction on reckless homicide, whether as an accomplice or as a principal. In rejecting this claim, the postconviction court found it “clear that counsels’ strategy was an acquittal,” as shown by “the intense advocacy [he] brought to bear at every stage of the proceedings.” Appellant’s App. Vol. II, p. 120. Affirming this decision, the Court relies on our precedent for the proposition “that a tactical decision not to tender a lesser included offense does not constitute ineffective assistance of counsel.” Ante, at 6 (citing Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998)).
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In concluding that Bradbury was not prejudiced by counsel’s failure to request a lesser-included instruction, the Court cites “Bradbury’s own repeated admissions of responsibility” and points to “evidence that the shooting was not just reckless, but intentional.” Ante, at 7. But the evidence, from my reading of the record, isn’t so clear cut.
To begin with, Bradbury, despite his initial statement of responsibility, later retracted his admissions (as the Court itself acknowledges), and testimony from the intended victim at trial suggested that Bradbury had in fact tried to stop the principal from shooting. What’s more, while several witnesses testified that the principal shot “at” the rival gang member, other evidence suggested that he merely intended to frighten the rival by recklessly firing the gun in his general direction. The spray of gunfire, after all, killed the toddler, not the intended victim. In fact, counsel even argued to the jury—his stipulation to the underlying conviction notwithstanding—that the principal “obviously wasn’t trying to kill” the victim, suggesting that “the state did not prove th[e requisite] mental intent” to establish murder. P-C Tr. Vol. IV, pp. 23–24.
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Still, the Court insists that “[t]endering the lesser included instruction would have given the jury another option to convict Bradbury.” Ante, at 7. But it’s no answer to insist “that a defendant may be better off without such an instruction.” Keeble v. United States, 412 U.S. 205, 212 (1973). To be sure, when “the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal.” Id. But a defendant is entitled to such an instruction “precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory.” Id. After all, when “one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Id. at 212–13. But if given the option to convict on a lesser-included offense with a substantially reduced sentence, the jury may well have chosen that option.
The Court’s suggestion also conflicts with the “basic notion that juveniles are different from adults when it comes to sentencing and are generally less deserving of the harshest punishments.” State v. Stidham, 157 N.E.3d 1185, 1188 (Ind. 2020). At fifteen years old at the time of his conviction, Bradbury had much “greater prospects for reform” than an adult offender, effectively “diminish[ing] the penological justifications for imposing” on him the harshest of sentences. See id. at 1194 (quoting Miller v. Alabama, 567 U.S. 460, 471 (2012)).
In sum, I agree that counsel’s stipulation to the principal actor’s conviction was reasonable trial strategy. I respectfully dissent, however, from the Court’s holding that counsel’s failure to request a lesser-included instruction amounted to effective assistance. Given the “particular” duties imposed by Strickland, codified in our Rules of Professional Conduct, and urged by the American Bar Association, I would hold that counsel’s failure to consult with Bradbury on whether to request a lesser-included instruction amounted to deficient performance. And because conflicting evidence would likely have created a serious enough dispute over Bradbury’s culpability as an accomplice for the court to have given the instruction, I would also hold that counsel’s deficient performance resulted in prejudice.
Rush, C.J., joins.