973 N.E.2d 62
Ind. Ct. App.2012Background
- McCullough was convicted of two counts of class A felony child molesting and one count of class C felony child molesting, affirmed on direct appeal.
- He filed a post-conviction relief petition alleging ineffective assistance of trial counsel; the PCR court denied relief.
- Key trial issues centered on (i) use of uncharged misconduct, including a California Claim, and related prosecutorial references; (ii) cross-examination of investigators; (iii) handling of Perkins testimony and potential expert testimony on memory.
- The State presented L.D.’s trial testimony, the Bowers Interview, and related witnesses; defense sought to undermine reliability and the State’s investigation.
- The post-conviction court issued a detailed, favorable ruling for the State; the Court of Appeals affirmed, and a dissent criticized the decision.
- Standard of review requires showing, by preponderance, that trial counsel’s errors caused a reasonable probability of a different outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prior uncharged misconduct and California Claim | McCullough exposed jury to false-claim evidence to impeach credibility. | Strategic use of impeachment evidence was reasonable to challenge credibility. | No reversible error; strategy reasonable; no probable prejudice |
| Cross-examination of State investigators | Cross-examination should have more aggressively challenged State investigation. | Cross-examination chosen to highlight Perkins and overall defense strategy was reasonable. | Not ineffective; strategy supported by record |
| Failure to make an offer of proof (Perkins) | |||
| Failure to present expert memory testimony | Omission prejudiced by curtailed Perkins testimony on investigation flaws. | Trial strategy still conveyed weaknesses; no showing of prejudice | No prejudice; failure to present Perkins testimony not reversible |
| Failure to present expert testimony on memory/suggestibility | Dr. Lawlor or similar expert would have aided theory of false memories. | Counsel reasonably relied on Perkins; expert choice was strategic. | Not ineffective; decision within strategic discretion |
| Failure to tender/obtain PPS instruction | PPS instruction needed to limit use of protected-voice evidence. | Instructions given sufficiently guided jury; PPS omission not prejudicial. | Not prejudicial; PPS instruction not required to overturn |
Key Cases Cited
- Shepherd v. State, 924 N.E.2d 1274 (Ind. Ct. App. 2010) (standard for reviewing PCR findings; explicit appellate standard)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (deficiency and prejudice prongs for ineffective assistance)
- Pennycuff v. State, 745 N.E.2d 804 (Ind. 2001) (cumulative-error approach to ineffective assistance)
- Curtis v. State, 905 N.E.2d 410 (Ind. 2009) ( PPS-related considerations and curative instructions)
- Dye v. State, 784 N.E.2d 469 (Ind. 2003) (exceptional position of judge in post-conviction review)
- Wrinkles v. State, 749 N.E.2d 1179 (Ind. 2001) (trial strategy nondispositive for ineffective assistance claims)
- Woodson v. State, 961 N.E.2d 1035 (Ind. Ct. App. 2012) (affirming deferential standard in trial-strategy review)
- Ellison v. State, 603 N.E.2d 1369 (Ind. Ct. App. 1992) (impeachment of credibility through false-claim evidence)