POINTER v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Gerrod D. Pointer, pro se, appeals the denial of his petition for post-conviction relief. He does not argue the merits of the denial. Rather, Pointer contends that his post-conviction counsel was ineffective.

[2] We affirm.

Facts & Procedural History

[3] The facts and procedural history underlying Pointer's murder conviction were set out on direct appeal:

On February 13, 2016, shortly before 2:00 a.m., Pointer and his uncle, Mark Gulley (Gulley), arrived at the Lucky Lady, a strip club located in Evansville, Vanderburgh County, Indiana. Pointer had driven the pair there in a late model, white sedan. Approximately ten minutes later, Maurice Heyward (Heyward) also arrived at the Lucky Lady. Although a frequent patron of the Lucky Lady, Heyward, at the time, was employed as a bouncer at another Evansville club, the Busy Body Lounge. At some point prior to this night, Pointer and Heyward had been involved in an altercation that resulted in Heyward ejecting Pointer from the Busy Body Lounge. However, there is no indication that Pointer and Heyward had any interaction on this night while at the Lucky Lady.

Within twenty minutes of arriving at the Lucky Lady, Gulley wanted to leave because “the liquor cost too much” and he “didn't like the company” or “the place, it stinks.” Pointer and Gulley left the Lucky Lady at 2:08 a.m., and as they walked down the sidewalk, Pointer waved at a passing police vehicle. He subsequently drove Gulley home; Gulley went to bed and assumed that Pointer also “went home.”

Shortly before 3:00 a.m., two officers with the Evansville Police Department were patrolling the area of the Lucky Lady when one observed “a subject that had on a dark colored jacket, and maybe an orange sweatshirt underneath it” loitering behind a dumpster in the Lucky Lady's parking lot. However, by the time the officers circled back to disperse the loiterer, the individual was gone.

The Lucky Lady closed at 3:00 a.m. A few minutes later, Heyward and his friend, Jae Post (Post), left the club and walked to the parking lot together. As they stood conversing, Post observed a man emerge from the vicinity of the dumpster and, initially, “didn't think anything of it.” However, as the man approached, Heyward stated, “[H]e's got a gun,” and then two gunshots rang out. Post, an Army veteran who is licensed to carry a firearm, retrieved his handgun and, making eye contact with the shooter, fired three shots in return. As the man fled, Heyward yelled out that he had been hit, and Post briefly gave chase to the suspect. Although Post did not see the man again, he observed “a dark blue colored SUV, GM Chevy product, maybe a Tahoe, Yukon, I'm not sure, I see the passenger door open, see the door shut, and see the SUV pull out and speed off.”

At the same time that Heyward and Post were talking in the parking lot, Marc Berendes (Berendes), who provides security services at the Lucky Lady, was escorting one of the dancers to her vehicle. As they approached the dumpster, Berendes observed “a guy come[ ] walking out from behind it.” Because the man ignored them, Berendes did not perceive him to be a threat to the dancer, and they continued walking down the sidewalk. Moments later, when the gunshots were fired, Berendes and the dancer hunkered down in front of a truck, at which point “a guy came running fast” past them and got into a newer model “little white car.” The little white car drove off, and Berendes observed as a SUV pulled behind the white car and followed it.

Heyward stumbled toward the door of the Lucky Lady and collapsed on the ground as bystanders attempted to assist him. At the time the shots were fired, two Evansville police officers were in the immediate vicinity and arrived on the scene within moments. Emergency medical personnel also arrived and transported Heyward to the hospital, where he was pronounced dead a short time later․

During the ensuing investigation, an Evansville Police Department detective retrieved surveillance footage from four cameras posted on the exterior of the Lucky Lady building. The shooting was captured by the cameras, and the detective ultimately ascertained that the suspect was wearing a brightly-colored red/orange hooded sweatshirt with a dark jacket and light-colored blue jeans, along with distinct black and white shoes. By “work[ing] backwards” through the footage, the detective observed that an individual dressed in the same manner had been at the Lucky Lady earlier that morning, arriving at 1:49 a.m. and departing at 2:08 a.m. Less than an hour later, at 2:52 a.m., surveillance footage depicted a man in the same attire suddenly emerge from behind the dumpster in the parking lot of the Lucky Lady in order to get into the passenger side of a dark blue Chevrolet SUV that was waiting in the parking lot. Although the SUV was seen driving away, that individual again reappeared from behind the dumpster at 3:04 a.m., at which time he shot Heyward.

Law enforcement officials subsequently released still shots from the surveillance footage to various media outlets, requesting citizen assistance in identifying the suspect. After seeing the photographs of himself and Pointer entering the Lucky Lady circulating on Facebook, Gulley came forward and identified Pointer as the man in the red/orange sweatshirt. In addition, police officers later came across a dark blue Chevrolet SUV that appeared to be the same as the one present in the surveillance video. The SUV was linked to an acquaintance of Pointer.

On February 17, 2016, the State filed an Information, charging Pointer with murder, a felony, I.C. § 35-42-1-1(1). However, Pointer had left the state. Several months later, he was arrested in Kansas on a parole violation and was extradited to Indiana in August of 2016.

During a pre-trial hearing on Friday, May 12, 2017, Pointer orally moved to continue the trial date, which was scheduled to begin the following Monday. In support of a continuance, Pointer argued that

in the course of their preparation for this case, the State came across a witness, ․ who they've identified, another individual in the video, and they were recently able to talk to that individual, they took a taped statement from him on Tuesday, I believe, I received it Wednesday, and I was gone all day yesterday. I've not reviewed it; however, it would be, based upon a representation made by [the State], it's pretty important information, and I think she would acknowledge that, relative to the case.

The State, in objecting to a continuance, acknowledged that the witness at issue, Berendes, had been initially unidentifiable in the surveillance footage, but he had finally been identified earlier that week. The State indicated that Berendes provided a taped statement on Tuesday (i.e., six days prior to trial), and the same was provided to the defense the next day. The State added that

[t]he majority of what this witness has indicated, we already know from the video because his ․ what he witnessed is on video. The only additional information that this witness provides us is the type of vehicle that the runner, who he has not identified as ․ Pointer, he's not identified the runner as the shooter, he just simply saw someone running past him, and that that individual got into a white car. That is the new information, so I don't know how fruitful or what we're looking at as far as a continuance when the majority, 90% of what this witness is going to testify to is already on camera.

Because the defense had requested and received a continuance a few months earlier, the trial court denied Pointer's motion to continue.

On May 15 through 17, 2017, the trial court conducted a jury trial. According to the Chronological Case Summary, during a meeting in the trial court's chambers prior to the start of the trial, Pointer moved to exclude the testimony of Berendes as a result of late discovery and because the State omitted his name from its witness list. Pointer also renewed his motion for a continuance. In response, the State argued that Berendes’ name had been earlier included in the case file. In fact, Berendes was listed as “[a]nother[ ] involved” on the Incident/Investigation Report generated on February 13, 2016, by the Evansville Police Department. The trial court ordered the State to make Berendes available to the defense and denied Pointer's motions. Thereafter, the jury was sworn and evidence was presented. In addition to the surveillance footage, the State's evidence included the testimony of Post, who identified Pointer in court as the same man he made eye contact with on the night of the murder, as well as testimony from one of the police officers, who recognized Pointer in court as the same man who waved at the police vehicle while walking down the sidewalk and was wearing the same attire as the shooter. At the close of the evidence, the jury returned a guilty verdict. On June 19, 2017, the trial court held a sentencing hearing and ordered Pointer to execute sixty years in the Indiana Department of Correction.

Pointer v. State, No. 82A01-1706-CR-1461, slip op. at *1-3 (Ind. Ct. App. March 20, 2018) (record citations omitted), trans. denied.

[4] On direct appeal, Pointer argued that the trial court erred by denying his motions to exclude the testimony of Berendes or to grant a continuance due to the State's late disclosure of this witness. This court affirmed Pointer's conviction, observing that Berendes had been named in the initial investigative report filed by police, so the State or Pointer could have reached out to him sooner, and that there was no indication that the State had acted in bad faith by its delayed disclosure. We explained further:

the State promptly provided a copy of Berendes’ statement to defense counsel and specified that the only new information the jury would learn from Berendes was that, after hearing gunfire, he observed a man, whom he could not identify, run past him and drive off in a white vehicle. In light of the ample independent evidence of Pointer's guilt—especially the fact that the crime was captured by surveillance cameras, there is a very low probability that Berendes’ testimony had an impact on the jury's verdict. Moreover, Pointer admittedly had several days between learning of the State's intent to utilize Berendes’ testimony and the trial; yet, the record is unclear as to why Pointer's counsel would not have had access to Berendes during that time as he now claims.

Id. at *5.

[5] In 2018, Pointer, pro se, filed a petition for post-conviction relief. He later hired John Goodridge (Attorney Goodridge) to represent him. Attorney Goodridge filed an appearance and an amended petition for post-conviction relief in March 2020. The amended petition alleged that Pointer's trial counsel had provided ineffective assistance by failing to conduct an adequate pretrial investigation.

[6] At the evidentiary hearing on October 28, 2022, Attorney Goodridge called two witnesses – Pointer and his appellate counsel Yvette LaPlante (Attorney LaPlante). Attorney LaPlante testified regarding the effect of trial counsel's failure to discover Berendes prior to trial or to interview him in the days leading up to trial after his disclosure as a witness. She also noted that trial counsel failed to make a record regarding any attempts that counsel had made to try to interview Berendes after the disclosure. This left LaPlante with “no record to argue on appeal.” Transcript at 12. LaPlante also opined that there were other witnesses that defense counsel “potentially should have interviewed” in preparation for trial. Id. at 14.

[7] Pointer testified generally that trial counsel did not depose the witnesses that he had asked him to depose. Pointer proclaimed his innocence and testified that he was “aware of individuals” who “may know” who committed the murder. Id. at 21. When asked, Pointer reluctantly identified a person named Michael as the person whom he believed committed the murder, but he acknowledged that he never gave trial counsel this name.

[8] At the conclusion of the hearing, Attorney Goodridge sought and was granted permission to submit additional evidence by way of deposition. Attorney Goodridge indicated that he intended to depose trial counsel and three other individuals, whom he anticipated might not cooperate. The post-conviction court advised that if these (unidentified) individuals did not comply with subpoenas for the depositions, “then we can talk about a motion to compel and I can set a hearing for them to come in and we can get that done.” Id. at 24. Attorney Goodridge also noted that this “might get hairy too because they ․ may be in a situation where they need to invoke right to counsel.” Id. The post-conviction court then set the matter for a status conference.

[9] Over the next year or so, three status conferences were held, and Attorney Goodridge sought and obtained many extensions of time to submit additional evidence and proposed findings of fact and conclusions of law. Attorney Goodridge did not submit any additional evidence, but he did submit, on January 19, 2024, a fifteen-page memorandum of law in support of the amended petition for post-conviction relief. Attorney Goodridge focused his argument on trial counsel's failure to depose or, at a minimum, interview Berendes prior to trial. He contended that this failure was clearly not a matter of strategy and that Berendes's testimony was critical to Pointer's defense that he was not the shooter. Attorney Goodridge argued, among other things, that the identification evidence at trial was not strong and that there was evidence that “[t]wo separate individuals were seen fleeing the scene at or about the time of the shooting.” Appendix at 62.

[10] On May 13, 2024, the post-conviction court denied Pointer's petition for post-conviction relief. The post-conviction court determined that Pointer had failed to establish that he was prejudiced by trial counsel's failure to depose or interview Berendes prior to trial. It explained:

21. This Court does not have any information before it as to what evidence or testimony an investigation or deposition might have revealed regarding Berendes’ knowledge of the offense. Without this information, this Court cannot determine that the prejudice prong of Strickland v. Washington has been met.

22. This Court also notes that according to the facts set out in the decision by the Indiana Court of Appeals on Petitioner's direct appeal, Berendes did not identify Petitioner as the shooter. His testimony was not as significant as the testimony of others who actually identified Petitioner. Therefore, it is unlikely that additional investigation into Berendes’ knowledge of the events would have led to evidence that would have impacted the outcome of the case.

Id. at 36-37. The post-conviction court further determined that there was no evidence of how Pointer was prejudiced by his other allegations of ineffective assistance of counsel “or what information or facts might have been revealed if trial counsel had conducted additional investigation.” Id. at 37. Pointer now appeals.

Discussion & Decision

[11] Pointer makes no argument that the post-conviction court erred by rejecting his claim of ineffective assistance of trial counsel. He claims only that Attorney Goodridge provided ineffective assistance of counsel in the underlying post-conviction proceedings because Attorney Goodridge “fail[ed] to present any evidence or argument of prejudice in support of Pointer's claims in spite of counsel's assurance to the [post-conviction] court that he would do so[.]” Appellant's Brief at 17. Pointer asks that we reverse and remand for a new post-conviction hearing.

[12] In Baum v. State, our Supreme Court addressed the standard of performance required of post-conviction counsel:

The right to counsel in post-conviction proceedings is guaranteed by neither the Sixth Amendment of the United States Constitution nor art. 1, § 13 of the Constitution of Indiana. A petition for post-conviction relief is not generally regarded as a criminal proceeding and does not call for a public trial within the meaning of these constitutional provisions. It thus is not required that the constitutional standards be employed when judging the performance of counsel when prosecuting a post-conviction petition at the trial level or at the appellate level.

We therefore apply a lesser standard responsive more to the due course of law or due process of law principles which are at the heart of the civil post-conviction remedy. We adopt the standard that if counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court, it is not necessary to judge his performance by the rigorous standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

533 N.E.2d 1200, 1201 (Ind. 1989) (internal citation omitted).

[13] Pointer recognizes the Baum standard but urges that it should be revisited in light of two United States Supreme Court cases, Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013). Our Supreme Court recently rejected this same argument and reaffirmed that “[s]o long as counsel ‘in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court,’ we do not judge post-conviction counsel against the federal ineffective assistance yardstick.” Isom v. State, 235 N.E.3d 150, 155 (Ind. 2024) (citing Baum, 533 N.E.2d at 1201). The Supreme Court explained:

While the rule from Martinez and Trevino preserves certain otherwise waived claims for federal habeas review when state post-conviction counsel were ineffective, it does not preserve claims in state proceedings. Brown v. Brown, 847 F.3d 502, 513 (7th Cir. 2017). Isom needs to persuade the federal habeas court that there is cause for his procedural default of these claims in state court.

Id. Accordingly, Pointer must be held to the Baum standard here.

[14] Pointer argues that he is entitled to relief even under the Baum standard because Attorney Goodridge “effectively abandoned Pointer at a critical stage of the proceedings.” Appellant's Brief at 13 (emphasis added). Pointer acknowledges that Attorney Goodridge “did ‘show up’ to the evidentiary hearing, which was a procedurally fair setting,” but he argues that Attorney Goodridge “failed to subpoena the witnesses that were pertinent to the issues raised in Pointer's amended petition.” Id. at 13-14. He complains that the two witnesses Attorney Goodridge called at the hearing did not offer “germane” testimony and that after the hearing, “counsel then abandoned Pointer, failing to present the promised evidence, failing to request a bifurcated hearing for which counsel had subpoenaed the additional witnesses, and failing to otherwise submit the evidence needed to substantiate Pointer's claims.” Id. at 14 (emphasis added). Pointer clearly misconstrues the Baum standard.

[15] As our Supreme Court has recognized, the Baum standard is a “low [ ] benchmark” for measuring counsel's performance, “which basically asks only whether the attorney was present[.]” A.M. v. State, 134 N.E.3d 361, 365 (Ind. 2019); see also Richie v. State, 254 N.E.3d 1064, 1067 (Ind. 2025) (“This is, to be sure, a low bar for the State to meet—and a correspondingly high bar for a would-be successive petitioner.”) (concurring opinion by Justice Slaughter). Moreover, the standard does not allow for piecemeal consideration of counsel's representation during various stages of the proceedings; we look to the representation as a whole to determine whether there was a complete lack of representation amounting to abandonment. See Hill v. State, 960 N.E.2d 141, 148 (Ind. 2012) (“[A] court cannot treat the failure to timely appeal ․ as its own separate entity”; “the appropriate inquiry is whether ․ counsel denied the criminal defendant of a procedurally fair setting during the entire course of the P–C.R. 2 proceeding ․”).

[16] Here, Attorney Goodridge filed an amended petition on behalf of Pointer and then appeared at the evidentiary hearing, where he called two witnesses. Thereafter, he attended three status hearings, obtained several extensions of time, and ultimately filed a memorandum in support of the amended petition with citations to relevant caselaw. This was far from abandonment in the Baum sense, and it is not proper for us to consider whether Attorney Goodridge's representation was otherwise deficient. See id. at 148-50 (holding that although post-conviction counsel failed to file a timely appeal, counsel did not abandon petitioner where counsel appeared at the hearing, presented evidence, and made a thorough arugment to the court, including citations to relevant caselaw); cf. Waters v. State, 574 N.E.2d 911, 911-12 (Ind. 1991) (“Waters did not receive a fair hearing on his petition, because, although Waters’ attorney entered an appearance for him, no actual legal representation occurred.”); Taylor v. State, 882 N.E.2d 777, 784 (Ind. Ct. App. 2008) (Baum standard met where counsel appeared at the hearing but presented no evidence – “called no witnesses, presented no affidavits, and did not submit the trial record”).

[17] Judgment affirmed.

Altice, Chief Judge.

Brown, J. and Tavitas, J., concur.