from the St. Joseph Superior Court, The Honorable Jane
Woodward Miller, Judge, Trial Court Cause No.
APPELLANT PRO SE Dorian Lee Carlisle, Indiana.
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Ian McLean Supervising Deputy Attorney General
Dorian Lee ("Lee") appeals, pro se, the
post-conviction court's denial of his amended petition
for post-conviction relief. We affirm.
On appeal, Lee raises multiple ineffective assistance of
trial and appellate counsel claims, which we restate as
I. Whether Lee's trial counsel was ineffective for
failing to object to jury instructions regarding accomplice
liability for murder.
II. Whether Lee's trial counsel was ineffective for
failing to object to jury instructions regarding attempted
III. Whether Lee's trial counsel was ineffective for
failing to object to jury instructions and prosecutor's
statements regarding accomplice liability for attempted
IV. Whether Lee's trial counsel was ineffective for
failing to object to jury instructions that created a
V. Whether Lee's trial counsel was ineffective for
failing to raise the lack of evidence that Lee attempted to
murder Janice Boyd.
VI. Whether Lee's trial counsel was ineffective for
failing to properly impeach adverse witnesses.
VII. Whether Lee's trial counsel was ineffective for
failing to properly conduct discovery.
VIII. Whether Lee's trial counsel was ineffective for
failing to seek a trial separate from Lee's
IX. Whether Lee's trial counsel was ineffective for
failing to object to the admission of a firearm because it
was obtained pursuant to an illegal search.
X. Whether Lee's appellate counsel was ineffective for
failing to raise Lee's trial counsel's ineffective
and Procedural History
The facts underlying Lee's convictions were set out in
the Indiana Supreme Court's decision on Lee's direct
On June 12, 1995, [Lee], along with two armed men, Terrance
Mitchem and Michael Greer, broke and entered a home occupied
by four adults. [Lee] raped one of the female victims and
participated in the shooting of all four victims. One victim
was killed,  while the other three
Lee v. State, 684 N.E.2d 1143, 1145 (Ind. 1997). We
will provide additional facts as needed.
Following a December 1995 jury trial in which Lee was tried
jointly with co- defendants Terrance Mitchem
("Mitchem") and Michael Greer ("Greer"),
Lee was convicted of murder; burglary, as a Class B
felony; three counts of attempted murder, as Class
A felonies; and rape, as a Class A
felony. Lee filed a direct appeal in which our
Supreme Court upheld his convictions. Lee, 684
N.E.2d at 1150.
On May 8, 2003, Lee filed a petition for post-conviction
relief ("PCR"). On September 4, 2007, Lee filed a
motion for an indefinite continuance of his PCR petition, and
the trial court granted the motion. On May 1, 2015, Lee filed
an amended petition for PCR in which he raised numerous
allegations of ineffective assistance of trial and appellate
counsel. The court held a post-conviction evidentiary hearing
on May 27, 2016, and October 29, 2016. On January 11, 2017,
the post-conviction court issued its order denying Lee's
petition. This appeal ensued.
Lee appeals the post-conviction court's denial of his
amended petition for post- conviction relief. Our standard of
review is clear:
[The petitioner] bore the burden of establishing the grounds
for relief by a preponderance of the evidence. Ind.
Post-Conviction Rule 1(5). Because he is now appealing from a
negative judgment, to the extent his appeal turns on factual
issues, [the petitioner] must convince this Court that the
evidence as a whole leads unerringly and unmistakably to a
decision opposite that reached by the post[-]conviction
court. Harrison v. State, 707 N.E.2d 767, 773 (Ind.
1999) (citing Spranger v. State, 650 N.E.2d 1117,
1119 (Ind. 1995)). We will disturb the decision only if the
evidence is without conflict and leads only to a conclusion
contrary to the result of the post[-]conviction court.
Id. at 774.
Post[-]conviction procedures do not afford a petitioner with
a super-appeal, and not all issues are available. Rouster
v. State, 705 N.E.2d 999, 1003 (Ind. 1999). Rather,
subsequent collateral challenges to convictions must be based
on grounds enumerated in the post[-]conviction rules. P C.R.
1(1); Rouster, 705 N.E.2d at 1003. If an issue was
known and available, but not raised on direct appeal, it is
waived. Rouster, 705 N.E.2d at 1003. If it was
raised on appeal, but decided adversely, it is res judicata.
Id. (citing Lowery v. State, 640 N.E.2d
1031, 1037 (Ind. 1994)). If not raised on direct appeal, a
claim of ineffective assistance of trial counsel is properly
presented in a post[-]conviction proceeding. Woods v.
State, 701 N.E.2d 1208, 1215 (Ind. 1998). A claim of
ineffective assistance of appellate counsel is also an
appropriate issue for post[-]conviction review. As a general
rule, however, most free-standing claims of error are not
available in a post[-] conviction proceeding because of the
doctrines of waiver and res judicata. Some of the same
contentions, to varying degrees, may be properly presented in
support of a claim of ineffective assistance of trial or
Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind.
Assistance of Trial Counsel
Lee contends that his trial counsel was ineffective. As our
Supreme Court has noted:
[t]his Court reviews claims of ineffective assistance of
counsel under the two components set forth in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). First, the defendant must show that counsel's
performance was deficient. Id. at 687, 104 S.Ct.
2052. This requires a showing that counsel's
representation fell below an objective standard of
reasonableness, id. at 688, 104 S.Ct. 2052, and that
the errors were so serious that they resulted in a denial of
the right to counsel guaranteed the defendant by the Sixth
Amendment, id. at 687, 104 S.Ct. 2052. Second, the
defendant must show that the deficient performance prejudiced
the defendant. Id. To establish prejudice, a
defendant 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. at
694, 104 S.Ct. 2052. A reasonable probability is a
probability sufficient to undermine confidence in the
Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002);
see also Wrinkles v. State, 749 N.E.2d 1179, 1192
(Ind. 2001) (citation omitted) ("In order to prove
ineffective assistance of counsel due to the failure to
object, a defendant must prove that an objection would have
been sustained if made and that he was prejudiced by the
We will not second-guess trial counsel's strategy and
tactics unless they are so unreasonable that they fall
outside objective standards. See, e.g.,
Benefield v. State, 945 N.E.2d 791, 797 (Ind.Ct.App.
2011). Isolated mistakes, poor strategy, inexperience, and
instances of bad judgment do not necessarily render
representation ineffective. Wentz, 766 N.E.2d at
361. And if we can dispose of a claim of ineffective
assistance of counsel by analyzing the prejudice prong alone,
we will do so. Benefield, 935 N.E.2d at 797 (citing
Wentz, 766 N.E.2d at 360).
Lee raises eight ineffective assistance of trial counsel
claims, each of which we address in turn.
Failure to object to jury instructions regarding accomplice
liability for murder
Lee was charged, as a principal, with the murder of Victor
Hill, and the State also tried Lee as an accomplice to that
murder. Lee contends that the jury instructions
regarding accomplice liability for murder were improper
because they did not inform the jury that, in order to find
Lee guilty as an accomplice, it must find that those whom he
was aiding acted with the knowing or intentional mens rea for
murder. In support, he cites the Court of Appeals case
Taylor v. State, 820 N.E.2d 691, 695 (Ind.Ct.App.
2005). However, that decision was vacated by our Supreme
Court, which specifically held that a defendant can be found
guilty of murder for intentionally aiding and abetting a
principal to kill a victim so long as the principal killed
the victim and the defendant knew or intended that the victim
would be killed. Taylor v. State, 840 N.E.2d 324,
335-36 (Ind. 2006). This is so even if the principal did not
"knowingly or intentionally" kill the victim.
Id. Thus, a defendant can be found guilty of a
greater degree of homicide than the principal; in such a
situation, the defendant's mens rea would be more
culpable than that of the principal. Id. Therefore,
the post-conviction court did not err in ruling that
Lee's trial counsel was not ineffective for failing to
object that the jury instructions regarding accomplice
liability for murder did not require the jury to find that
the principal had the specific mens rea to kill.
Failure to object to jury instructions regarding attempted
Lee maintains that the jury instructions regarding attempted
murder were improper because they included the information in
six counts against Lee, including Counts III through V, which
used the word "knowingly" in relation to the
element of mens rea for attempted murder. In support, he
cites Spradlin v. State, which held that
jury instructions regarding a charge of direct liability for
attempted murder must inform the jury that the State must
prove beyond a reasonable doubt that the defendant acted with
the specific intent to kill and took a substantial step
toward such killing. 569 N.E.2d 948, 950-51 (Ind. 1991);
see also Rosales v. State, 23 N.E.3d 8, 12 (Ind.
2015) (noting that Spradlin related to direct
liability, rather than accomplice liability, for attempted
murder). The "Spradlin rule" is necessary
because of "the higher sentence range for attempted
murder in combination with the ambiguity involved in the
proof of that crime." Ramsey v. State, 723
N.E.2d 869, 872 (Ind. 2000). Lee maintains that, because the
instruction quoting the charging information on murder
included the word "knowingly, " it erroneously led
the jury to believe it could convict him of attempted murder
upon a showing that he merely "knew" he was acting,
regardless of his intent in acting. We disagree.
Lee is correct that an instruction that informs the jury that
a "knowingly" mens rea, alone, is sufficient to
establish guilt, as a principal, of attempted murder
constitutes fundamental error. Spradlin, 569 N.E.2d
at 950-51. However, that is not what the jury instructions
regarding direct liability for attempted murder stated in
Lee's case. We do not read segments of a jury instruction
in isolation; rather, we consider the instructions as a
whole. Price v. State, 765 N.E.2d 1245, 1252 (Ind.
2002). Here, the jury instructions as a whole informed the
jury that, in order to find Lee guilty of attempted murder,
"it is not enough that [he] engaged in the proscribed
conduct, " i.e., that he acted knowingly. Tr. R. Vol. I
at 156. The instruction then states that the jury must find
the defendant acted "with the specific intention of
accomplishing the killing" of another human being.
Id. The instruction on attempted murder also stated
that the State had to prove beyond a reasonable doubt
Lee's "intent to kill" the victim. Id.
at 153. Therefore, there was no Spradlin error in
the jury instructions, and trial counsel was not ineffective
for failing to object on that basis. See Ramsey v.
State, 723 N.E.2d 869, 872-73 (Ind. 2000) (finding the
jury instructions as a whole sufficiently informed the jury
of the specific intent requirement for attempted murder,
despite the use of the word "knowingly" in one of
Failure to object to jury instructions and prosecutor's
statements regarding accomplice ...