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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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.
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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 of 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 a different outcome.” Wilson, 157 N.E.3d at 1177. “A reasonable probability is a 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. Accordingly, because we find that Bradbury’s counsel’s performance was not deficient, we decline to address the prejudice prong under Strickland. See Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999) (“To prevail on an ineffective assistance of counsel claim, one must show both deficient performance and resulting prejudice”) (emphasis added); French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (“Failure to satisfy either prong will cause the claim to fail.”).
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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.
When the validity of a statute is challenged, appellate courts begin with a “presumption of constitutionality.” State v. Lombardo, 738 N.E.2d 653, 655 (Ind. 2000) (quoting State v. Downey, 476 N.E.2d 121, 122 (Ind. 1985)). To survive a challenge, the statute “need only inform the individual of the generally proscribed conduct, [and] need not list with itemized exactitude each item of conduct prohibited.” Id. A statute will not be found unconstitutionally vague if individuals of ordinary intelligence can comprehend it adequately to inform them of the proscribed conduct. Id. Thus, Bradbury faces a high bar to have the statute here declared unconstitutional.
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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Whatever one might think of the wisdom of our Spradlin jurisprudence, this much is clear: it is confined to cases of attempted murder. And Tyre Bradbury was not charged with attempted murder. He was charged with murder as an accomplice to a shooter accused and convicted on a theory of transferred intent. All the State should have had to prove (prior to the stipulation) was that Robert Griffin committed a knowing killing, and that Bradbury aided and abetted him. Yet, this allegedly ineffective defense counsel was somehow able to convince a superb trial judge to instruct the jury that Bradbury had to have formed Spradlin level specific intent to kill. That’s not ineffective, that’s Darrow-like adversarial advocacy that makes our system work. With this windfall in hand, counsel was able to argue to the jury that Griffin was the only truly responsible party, and that Bradbury lacked a mens rea that the State should not have had to prove in the first place. Such assistance was anything but constitutionally ineffective, even if it failed to gain an acquittal.
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“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.
When analyzing an ineffective-assistance-of-counsel claim, we apply the two-part test outlined in Strickland v. Washington, 466 U.S. 668 (1984). Under that test, Bradbury must show (1) that counsel’s performance fell short of prevailing professional norms, and (2) that counsel’s deficient performance prejudiced his defense. Id. at 687
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In my view, Bradbury has sufficiently met both requirements.
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Some courts, to be sure, impose no requirement of consultation before counsel pursues an all-or-nothing strategy. But even those decisions, with few exceptions, either cite evidence of a clear trial strategy or carefully scrutinize ineffective-assistance claims that raise the issue. In Mathre v. State, for example, the North Dakota Supreme Court held that counsel’s failure to consult with the defendant about the decision not to submit a lesser-included instruction was “a reasoned decision based upon trial strategy.” 619 N.W.2d 627, 631 (N.D. 2000). And, while declining to impose a blanket rule, the Georgia Supreme Court, in Van Alstine v. State, found it “critically important for defense lawyers in a jury trial to consult fully” with the defendant when pursuing “an ‘all or nothing’ defense,” adding that the effect of counsel’s failure to submit a lesser-included instruction “must be rigorously scrutinized when ineffective assistance of counsel is asserted.” 426 S.E.2d 360, 363 (Ga. 1993).
I would also hold that that counsel’s deficient performance resulted in prejudice to Bradbury. The State prosecuted the principal for the toddler’s death under a theory of transferred intent—i.e., that the principal intended to murder the rival gang member but mistakenly killed the toddler instead. Griffin v. State, 40 N.E.3d 1282 (Ind. Ct. App. 2015) (mem. dec.). So, to convict Bradbury of murder as an accomplice, the State had to prove beyond a reasonable doubt that Bradbury, acting with the intent to kill the rival gang member, knowingly aided, induced, or caused the principal to commit the crime of murdering the toddler. See I.C. § 35-42-1-1 (murder), I.C. § 35-41-2-4 (accomplice liability). See also Brown v. State, 770 N.E.2d 275, 281 (Ind. 2002) (holding that “conviction of an accomplice requires sufficient proof of the underlying crime”).
In arguing that Bradbury wasn’t prejudiced by counsel’s failure to request a lesser-included instruction, the State cites Bradbury’s admissions of involvement in the shooting and points to evidence that “the shooting was not merely reckless” but intentional. Appellee’s Br. at 19–20. 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.
This conflicting evidence, in my view, would likely have created a serious enough dispute over Bradbury’s culpability as an accomplice for the court to have given the lesser-included instruction, had counsel requested one. See Brown, 770 N.E.2d at 281 (holding that defendant charged with being an accomplice to murder was entitled to a jury instruction on reckless homicide where there was “a serious evidentiary dispute” about the culpability of the principal actor). And the probability that Bradbury could have received such an instruction, but for counsel’s error, is reasonably sufficient, in my opinion, to “undermine confidence in the outcome” of the case. See Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018).
Still, the State insists that, given Bradbury’s “repeated admissions of responsibility, a jury would have had little difficulty finding him guilty of a lesser offense” and he “still may have received a significant sentence because he was also facing a criminal gang enhancement.” Appellee’s Br. at 16 (record citations omitted). But it’s no answer to suggest “that a defendant may be better off without [a lesser-included] 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 (even with a criminal-gang enhancement), the jury may well have chosen that option.
The State’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.