Robert Stone, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] The Marion Superior Court denied Robert Stone's petition for post-conviction relief. Stone appeals and presents several issues for our review, which we consolidate and restate as the following three issues:

1. Whether the post-conviction court erred when it denied Stone's claims of newly discovered evidence.

2. Whether his freestanding claims of error are foreclosed in these proceedings.

3. Whether he was denied the effective assistance of trial counsel.

[2] We affirm.

Facts and Procedural History

[3] Following a jury trial, the trial court entered judgment of conviction against Stone for two counts of felony murder. Facts relevant to this appeal are reported in our court's resolution of Stone's direct appeal of his convictions:

The facts most favorable to the verdicts reveal that on December 14, 2007, eighteen-year-old Michael Earl was with his friends David Eskew, Dustin Engelking, Zachary Taylor, and fifteen-year-old Warren Brown when the group started talking about guns. Michael said that his father, Anthony Earl, owned several guns, and Brown expressed an interest in seeing them. The five boys then went to the Indianapolis home of the Earls to view Anthony's gun collection. Anthony unlocked the closet where he kept his collection and showed the boys between twenty and thirty guns, including machine guns, pistols, and shotguns.

Brown asked Anthony if he was interested in selling any of his guns, and Anthony said no. The boys left.

The following day, Brown received a phone call from his friend, fifteen-year-old Gary Ransom, who happened to be with eighteen-year-old Stone. Brown told Ransom about the guns he had seen the night before at the Earls’ home, and the three of them concocted a plan to steal the guns from the house later that same day. Stone, who was driving his car, and Ransom picked up Brown at his house. They stopped by Kevin Tucker's house to see if he was interested in joining the robbery, but he declined their invitation. So, the three of them, wearing masks and gloves, proceeded to the Earls’ home. During the drive, Ransom observed a handgun in the glove compartment of Stone's car.

When the trio arrived at the Earls’ home, Stone pulled his car in the driveway and grabbed the gun from the glove compartment. Ransom knocked on the door while Stone and Brown stood off to the side. When Michael answered the door, the three boys barged in and began yelling for the guns and demanding the keys to the gun closet. Also inside the house at the time were Michael's father, Anthony, and Michael's friend, Eskew. Anthony, who was unarmed, emerged from another room and charged Stone for his gun, attempting to tackle him for it. Anthony tried to “get the gun and push it upwards.” Stone shot Anthony twice, once in the back and once in the chest, and shot Michael once in the back. Eskew escaped to a back bedroom to avoid being shot. One of the boys then grabbed Eskew from the back bedroom and forced him to ask Michael, who was still moving a little, where the keys to the gun closet were so they could take the guns. Anthony was not moving at this time. Although Michael was saying that “he couldn't breathe,” neither Stone nor Ransom or Brown for that matter did anything to help Michael. Instead, Stone instructed Ransom and Brown to hurry up. When the keys did not open the closet door, they shot through the door and then punched it. Eventually, the closet door opened, and they took as many guns as they could. They then fled to Tucker's apartment. Brown later hid the guns in Haughville, an area on the west side of Indianapolis.

Eskew immediately called 911. Michael and his father Anthony were taken to the hospital, where they both died from the gunshot wounds they suffered.

Eskew was able to identify Brown as one of the robbers. Eskew recognized Brown because he had been with him the night before. Brown confessed to the police that the robbery was his idea, implicated Ransom as one of his co-conspirators, and identified Stone as the shooter. Ransom confessed as well and also identified Stone as the third participant and shooter. Tucker also identified Stone as one of the robbers.

Based on this information, the State charged Stone with two counts of murder, two counts of felony murder, and one count of Class A felony robbery. At trial Brown and Ransom identified Stone as the shooter, and Tucker testified that Stone was with Brown and Ransom both before and after the robbery. Stone testified in his own defense. Specifically, he testified that he did not know Ransom, Brown, or Tucker and that he did not know anything “about those events, those horrible events which took place on that weekend, December 15th.”

A jury convicted Stone of the two counts of felony murder and robbery. It did not reach a verdict on the murder counts. The trial court “set aside” the robbery conviction due to double jeopardy concerns. The trial court identified as aggravators Stone's juvenile and adult criminal history, including a probation violation; that this offense involved a handgun, and one of Stone's previous convictions was for carrying a handgun without a license; that the day before the murders, Stone bonded out of jail on felony charges of forgery and attempted theft; and the nature and circumstances of the offenses. The court identified as mitigators that Stone was eighteen years old when he committed the offenses, he has three young children (three-year-old twins and a one-year-old) upon whom lengthy incarceration would be a hardship, as well as the hardship upon the mother of Stone's one-year-old child and Stone's mother. The trial court sentenced Stone to fifty-five years on each count of felony murder and ordered the sentences to be served consecutively, for an aggregate term of 110 years.

Stone v. State, 49A04-0905-CR-257, 2009 WL 4573238, at *1-2 (Ind. Ct. App. Dec. 7, 2009) (citations omitted), trans. denied.

[4] Stone raised two issues on direct appeal, namely, whether the State presented sufficient evidence to support his convictions and whether his sentence was inappropriate in light of the nature of the offenses and his character. We affirmed his convictions and sentence. Id.

[5] In 2021, Stone filed an amended petition for post-conviction relief raising dozens of claims, including ineffective assistance of trial counsel, newly discovered evidence, and freestanding claims of trial error. Stone argued that his counsel was ineffective because he did not present certain exculpatory evidence; he did not move to suppress evidence obtained when officers searched his mother's house without a warrant; and he did not challenge the show-up identification evidence and Evidence Rule 404(b) evidence admitted at trial.

[6] During a hearing on his petition, Stone presented his theory that newly discovered evidence required the trial court to grant his petition. Specifically, Stone argued that certain evidence excluded from his trial was exculpatory, namely, weapons that officers had found in Tucker's apartment, Tucker's subsequent arrest for robbery, and phone records officers had sought related to another man who lived near Stone. Stone alleged that those weapons and Tucker's arrest could have been submitted as evidence that Tucker was the shooter, not Stone. But none of the witnesses who testified at the post-conviction hearing supported Stone's theories. Stone's trial counsel testified that he did not know how he would have gotten the Tucker weapons admitted into evidence, and he did not remember anything about the phone records.

[7] Further, Stone's trial counsel testified that his defense strategy was to challenge the show-up identification of Stone as the shooter, which he described as “improper” and “very suggestive.” Tr. pp. 66-67. He also testified that he did not recall whether officers had entered Stone's mother's house without a warrant when they searched it. An investigating officer, Sergeant Hess, testified that he did not remember whether he had obtained consent to search the house. In any event, officers did not find any evidence incriminating Stone during the search. And Sergeant Hess had nothing to offer regarding the phone records.

[8] Following the hearing, the post-conviction court concluded that Stone had not met his burden to show that he was denied the effective assistance of trial counsel. The court also concluded that Stone's freestanding claims of error were unavailable on post-conviction relief. And the court concluded that Stone had not satisfied the nine-factor test to show that newly discovered evidence warranted post-conviction relief. This appeal ensued.

Discussion and Decision

Standard of Review

[9] Stone appeals the post-conviction court's order denying him post-conviction relief.

“The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014). “When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. at 274. In order to prevail on an appeal from the denial of post-conviction relief, a petitioner must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-conviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court's legal conclusions, “[a] post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).

Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).

Issue One: Newly Discovered Evidence

[10] Stone first contends that newly discovered evidence requires that he be granted post-conviction relief. As the State points out, Stone does not support his argument on this issue with citations to authorities as required by Indiana Appellate Rule 46(A)(8)(a).

It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. Twin Lakes Reg'l Sewer Dist. v. Teumer, 992 N.E.2d 744, 747 (Ind. Ct. App. 2013). This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). These consequences include waiver for failure to present cogent argument on appeal. Id. While we prefer to decide issues on the merits, where the appellant's noncompliance with appellate rules is so substantial as to impede our consideration of the issues, we may deem the alleged errors waived. Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans. denied (2015), cert. denied (2015). We will not become an “advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.” Id.

Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016). We agree with the State that Stone has waived this issue for our review.

[11] Waiver notwithstanding, Stone has not met his burden of proof on this issue. In considering whether to set aside a conviction and grant a new trial on the basis of newly discovered evidence, Indiana courts apply a nine-part test:

New evidence will mandate a new trial only when the defendant demonstrates that: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial.

Kubsch v. State, 934 N.E.2d 1138, 1145 (Ind. 2010). These nine factors are analyzed with care, “as ‘the basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized.’ ” Id. (quoting Taylor v. State, 840 N.E.2d 324, 330 (Ind. 2006)).

[12] Stone does not frame his argument on appeal in the context of any of the nine factors. Indeed, Stone does not explain why he could not have discovered the evidence prior to trial,¹ and he has not shown that any of the alleged newly discovered evidence would “probably produce a different result at retrial.”² Id. We therefore cannot say that the post-conviction court erred when it denied Stone's petition on this issue.³

Issue Two: Freestanding Claims of Error

[13] Stone contends that the post-conviction court erred when it concluded that several claims of error were unavailable in this proceeding. In particular, Stone had argued to the post-conviction court that: his arrest violated his constitutional rights; the prosecutor had committed misconduct at trial; the show-up identification of him as the shooter violated his right to due process; the trial court admitted evidence in violation of Evidence Rule 404(b); and his convictions and sentence violated double jeopardy principles. The post-conviction court concluded that “[e]ach of these issues was available[ ] but not raised on appeal.” Appellant's App. Vol. 2, p. 55.

[14] As our Supreme Court has explained, “[i]t has long been held that claims available on direct appeal but not presented are not available for post-conviction review. These are applications of the basic principle that post-conviction proceedings do not afford the opportunity for a super-appeal.” Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002). The evidence unequivocally supports the post-conviction court's conclusion on these issues. The post-conviction court therefore did not err when it denied these freestanding claims of error.

Issue Three: Ineffective Assistance of Trial Counsel

[15] Finally, Stone contends that he was denied the effective assistance of trial counsel.⁴ “The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, [466 U.S. 668 (1984)].” Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). “First, the defendant must show that counsel's performance was deficient.” Id. The defendant must establish that counsel's representation fell below an objective standard of reasonableness, 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. “There is a strong presumption that counsel rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment, and the burden falls on the defendant to overcome that presumption.” Peaver v. State, 937 N.E.2d 896, 900 (Ind. Ct. App. 2010), trans. denied.

[16] “Second, the defendant must show that the deficient performance prejudiced the defense.” Perez, 748 N.E.2d at 854. “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. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “Although the two parts of the Strickland test are separate [inquiries], a claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). “Strickland declared that the ‘object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ․ that course should be followed.’ ” Id. (quoting Strickland, 466 U.S. at 697).

[17] Again, Stone argued that his counsel was ineffective because he did not present certain exculpatory evidence; he did not move to suppress evidence obtained when officers searched his mother's house without a warrant; and he did not challenge the show-up identification evidence and Evidence Rule 404(b) evidence admitted at trial. And, despite Stone's failure to support his argument on appeal with cogent argument, we exercise our discretion to address the merits of each contention in turn.

[18] Stone first argues that his trial counsel's performance was deficient because the weapons found in Tucker's apartment, as well as Tucker's subsequent arrest for robbery, were not used to “bolster [his] defense” at trial. Appellant's Br. at 24. But his trial counsel testified as follows:

Q ․ And you heard the discussion about the weapons recovered from Tucker's apartment since the time of [Stone's] arrest?

A Yes.

Q Do you recall knowing about those weapons being recovered at the time of the trial?

A Yeah, I really don't have a recollection. I just plain don't have a recollection of that detail.

Q If you had known that weapons and drugs were recovered from Tucker's apartment at the time that they searched it and the time that Warren Brown was arrested, would that have been helpful for your case?

A I'm not so sure about the drugs. I mean, it's everywhere. You can find that everywhere. I can't tell you exactly about the—why the weapon would have been important, I think—I don't know how I would have gotten it in.

Tr. p. 66 (emphasis added). In his brief on appeal, Stone does not explain how the evidence would have been admissible, let alone how it would have bolstered his defense at trial. We cannot say that his counsel's performance was deficient on this issue.

[19] Next, Stone argues that his trial counsel should have “move[d] to suppress or exclude any evidence that the State recovered [when he was arrested] in his mother's house without a warrant, the evidence obtained through questionable identification techniques and methods[,] and the improper 404(b) evidence that was admitted based on an improper application of the identity exception.” Appellant's Br. at 24. But Sergeant Hess testified that he may have gotten Stone's mother's consent to search the house. And, in any event, as the post-conviction court found, Stone did not identify any incriminating evidence that was found during that search. Stone's trial counsel testified that he absolutely challenged the show-up identification of Stone as the shooter, which he described as “improper” and “very suggestive.” Tr. pp. 66-67. And, as the post-conviction court found, the 404(b) evidence came in over trial counsel's objection.

[20] For all these reasons, Stone has not shown that he was denied the effective assistance of trial counsel. The post-conviction court did not err when it denied Stone's petition on this issue.

[21] Affirmed.

FOOTNOTES

1.   Defense counsel testified that he did not remember whether he knew about the weapons found at Tucker's apartment at the time of trial.

2.   Stone was unable to present admissible evidence regarding the phone records during the post-conviction hearing, and he has not shown that those records were relevant to his trial.

3.   For the first time on appeal, Stone mentions newly discovered DNA evidence, but he did not include that alleged evidence in his petition for post-conviction relief, and we will not consider it for the first time on appeal. Allen v. State, 749 N.E.2d 1158 (Ind. 2001).

4.   We note that Stone also argues that the post-conviction court abused its discretion with respect to his claims of ineffective assistance of appellate counsel, the exclusion from evidence of his PowerPoint presentation during the post-conviction hearing, and other issues that are difficult to discern. That section of his brief is comprised of one run-on sentence and three vaguely worded bullet points. We hold that these issues are completely devoid of any cogent argument, and they are waived.

Mathias, Judge.

Judges Foley and Felix concur. Foley, J., and Felix, J., concur.