BRISKER v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Dominique Brisker appeals the denial of his petition for post-conviction relief, contending the court erred by rejecting his claims for a new trial based on newly discovered evidence and of ineffective assistance of trial and appellate counsel. Finding no error, we affirm.

Issues

[2] Brisker presents two issues which we restate as three:

I. Whether the post-conviction court erred by not ordering a new trial based on newly discovered evidence;

II. Whether the court erred by denying his claim of ineffective assistance of trial counsel; and

III. Whether the court erred by denying his claim of ineffective assistance of appellate counsel.

Facts and Procedural History

[3] In November 2017, Brisker and Deonta Anderson approached Malachi Carter at a gas station as he talked with his friends Antonio Moore and Jason Nave. Carter and Anderson began fighting, and Brisker pulled out a gun. Anderson took the gun from Brisker and fired at Carter as Carter ran away. Carter was not hit by any bullets, but Moore was struck in the leg with a bullet.

[4] Police were dispatched, and Carter returned to the scene and was identified as being involved. Police took him into custody, and Carter gave a detailed recorded statement identifying himself as a victim, Anderson as the shooter, and Brisker as the individual who originally possessed the gun that Anderson used to shoot at Carter.

[5] The State charged Brisker with Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 6 felony pointing a firearm. In a separate case, the State charged Anderson with the attempted murder of Carter. Carter subsequently went to the police department, recanted his earlier statement identifying Brisker and Anderson, and denied being the victim of any shooting. Carter told the police he was not going to be a witness or go to court, and he asked the detective to tell Anderson and Brisker that he was not cooperating with police.

[6] The State subsequently moved for a forfeiture by wrongdoing, alleging that both Brisker and Anderson engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of Carter as a witness for the purpose of preventing him from testifying. Following a hearing, the court found that both Brisker and Anderson had forfeited their rights to confront and cross-examine Carter, resulting in the State being permitted to introduce Carter's statements at trial.

[7] At Brisker's trial, Carter's out-of-court statements to police, including his recorded statement identifying Brisker as the individual who possessed the gun, were admitted over Brisker's objection. The defense then called Carter as a witness, and he claimed that he was high on drugs at the time of his initial statement to police and that his statement was incorrect and based upon faulty assumptions on his part. Brisker was convicted of unlawful possession of a firearm by a serious violent felon, and the court sentenced him to twelve years. The court also imposed a six-month sentence for two counts of contempt due to Brisker's disruptive and extremely disrespectful behavior in court.

[8] Brisker filed a direct appeal, challenging the trial court's admission of Carter's out-of-court statements to police. Finding no error, this Court affirmed his conviction. See Brisker v. State, No. 20A-CR-707 (Ind. Ct. App. October 30, 2020) (mem.).

[9] Thereafter, Brisker petitioned for post-conviction relief. Following a hearing, the post-conviction court denied relief. Brisker appeals that denial.

Discussion and Decision

[10] To prevail in the appeal of a post-conviction proceeding, the petitioner must establish clear error by showing that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Ingalls v. State, 213 N.E.3d 544, 548 (Ind. Ct. App. 2023). “ ‘In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.’ ” Hobbs v. State, 206 N.E.3d 419, 424 (Ind. Ct. App. 2023) (quoting Bautista v. State, 163 N.E.3d 892, 896 (Ind. Ct. App. 2021)), trans. denied. In our review, we accept the post-conviction court's findings of fact unless clearly erroneous, though we do not defer to its legal conclusions. Ingalls, 213 N.E.3d at 548.

[11] We note that the judge who presided over the hearing on Brisker's post-conviction petition also presided over his trial. When the post-conviction judge is the same judge who conducted the original trial, the post-conviction findings and judgment are entitled to greater than usual deference. Reeves v. State, 174 N.E.3d 1134, 1140 (Ind. Ct. App. 2021), trans denied. The rationale underlying this principle is that the judge presiding over both proceedings is in a unique position to assess the weight and credibility of the factual evidence as well as whether the defendant was deprived of a fair trial. State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003).

I. Newly Discovered Evidence

[12] Brisker first contends the post-conviction court erred by not ordering a new trial on the basis of newly discovered evidence. New evidence mandates a new trial only when the petitioner establishes that: (1) the evidence has been discovered since the trial; (2) the evidence is material and relevant; (3) the evidence is not cumulative; (4) the evidence is not merely impeaching; (5) the evidence is not privileged or incompetent; (6) due diligence was used to discover the evidence in time for trial; (7) the evidence is worthy of credit; (8) the evidence can be produced upon a retrial of the case; and (9) the evidence will probably produce a different result at retrial. Hamilton v. State, 233 N.E.3d 461, 488 (Ind. Ct. App. 2024) (quoting Kubsch v. State, 934 N.E.2d 1138, 1145 (Ind. 2010)), trans. denied. “We analyze ‘these nine factors with care, as the basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized.’ ” Id.

[13] On this issue, the post-conviction court concluded:

2. The witnesses’ statements at codefendant Anderson's trial, to the extent that they were inconsistent with testimony at Petitioner's trial, would be subject to extensive impeachment. To the extent that they are not inconsistent, they would be largely cumulative. None of the witness testimony identified by Petitioner would change the fact that a video was admitted in his trial depicting him possessing the handgun at issue․ The Court concludes that the testimony from Anderson's trial fails the test ․, under factors 3 [not cumulative], 4 [not merely impeaching], 7 [worthy of credit] and 9 [will probably produce a different result].

Appellant's App. Vol. 2, p. 81 (Findings of Fact, Conclusions of Law, and Order Denying Post-Conviction Relief).

[14] Brisker has failed in his burden to convince us that there is no way within the law that the post-conviction court could have reached the decision it did. His argument neither addresses the four factors specifically identified by the post-conviction court, nor demonstrates that all nine required factors were fulfilled. Consequently, Brisker's claim of newly discovered evidence fails.

II. Ineffective Assistance of Trial Counsel

[15] The basis of the newly discovered evidence claim is Brisker's argument that his trial counsel provided ineffective assistance. Specifically, Brisker claims that counsel's questioning of witnesses was deficient such that “the full story never came out.” Appellant's Br. p. 14.

[16] Our analysis of Brisker's claim of ineffective assistance of trial counsel is guided by a two-part test. First, he must establish that counsel's performance was deficient. Black v. State, 7 N.E.3d 333, 338 (Ind. Ct. App. 2014). Such deficiency is established by a showing that counsel's representation fell below an objective standard of reasonableness and that counsel's errors were so serious that the defendant was denied the counsel guaranteed by the Sixth Amendment. Id. (quoting Kubsch, 934 N.E.2d at 1147).

[17] Second, Brisker must prove that counsel's deficient performance prejudiced the defense. Black, 7 N.E.3d at 338. This part of the test requires a showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Lee v. State, 91 N.E.3d 978, 983 (Ind. Ct. App. 2017) (quoting Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002)), trans. denied. “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id.

[18] A presumption exists that counsel's performance is effective, and a defendant must present strong and convincing evidence to overcome this presumption. Black, 7 N.E.3d at 338. A failure to satisfy either part of the test will cause the claim to fail, and most ineffective assistance claims can be resolved by a prejudice inquiry alone. State v. Pearson, 191 N.E.3d 892, 898 (Ind. Ct. App. 2022).

[19] Here, the post-conviction court concluded:

3. [Trial counsel] did interview witnesses Anderson, Carter and Nave. They were called as witnesses at Petitioner's trial. The fact that they later testified differently does not mean trial counsel didn't do his job. It logically establishes that the witnesses were likely less than truthful during one of the trials.

4. Petitioner has alleged that [trial counsel] provided ineffective assistance at his jury trial in failing to adequately cross-examine certain witnesses, and in failing to adequately challenge the admission of hearsay testimony by way of the doctrine of forfeiture by wrongdoing. Petitioner points out that witnesses were more extensively examined at codefendant Deonta Anderson's trial and that the codefendant was acquitted. Petitioner has not adequately identified what questions should have been asked in Petitioner's trial though, and what material creates a good faith belief that asking those questions would have been outcome determinative.

5. Codefendant Anderson was charged with attempted murder, with that charge's demanding mens rea requirement. As the State's alleged victim of the attempted murder was not in fact hit by any shots fired, this may have raised a reasonable doubt in juror's minds about whether the shooter intended to frighten the victim as opposed to specifically intending to kill him. Or, the jury may have had doubts over the identity of the shooter between several persons present in the gas station parking lot at the time of the shooting. The fact that Anderson received a more favorable outcome may have little to do with questions asked on cross-examination, as the issues were quite different in the two trials.

6. A surveillance video recording of the gas station shooting at the center of this case was admitted in Petitioner's trial. The Court concludes that based upon that video evidence and related testimony, the jury may have felt it had adequate visual evidence to prove beyond a reasonable doubt that Petitioner was possessing the weapon at issue. Jurors often consider such video evidence as more compelling than conflicting or impeached testimony about the same events. It is not appropriate now years later to afford post-conviction relief simply to ask another jury to reweigh this evidence. The Court sees no reasonable probability that different questions asked by [trial counsel] would have changed the outcome of Petitioner's trial.

Appellant's App. Vol. 2, pp. 82-83 (Findings of Fact, Conclusions of Law, and Order Denying Post-Conviction Relief).

[20] While Brisker concedes that his “trial counsel cannot be faulted for not calling Anderson to testify” because Anderson was awaiting his own trial and would have invoked his Fifth Amendment right, he does not suggest how counsel's performance otherwise fell short of the prevailing standard. Appellant's Br. p. 15.

[21] Instead, Brisker discusses the testimony of Carter, Nave, and Moore from Anderson's trial. Brisker alleges that, in Anderson's trial, Carter testified that he had punched Anderson in the face and that Anderson was lying on the ground when the shooting began. In addition, Carter demonstrated to the jury how the fight had occurred, and he testified that he believed one of two unidentified men seen in security camera footage was the shooter. Nave and Moore testified that Anderson was knocked out and lying on the ground and that the gun shots had come from behind Carter. Brisker concludes that “Anderson's jury heard the full story and returned an acquittal, so there is a reasonabl[e] likelihood that Brisker's jury would have done the same[ ]” had counsel performed reasonably. Id.

[22] To the extent Brisker's argument alleges any substandard performance by his trial counsel, we conclude just as the post-conviction court did. The court succinctly stated: “The fact that [Carter and Nave] later testified differently does not mean trial counsel didn't do his job.” Appellant's App. Vol. 2, p. 82 (Conclusion of Law #3). In essence, Brisker is asking us to review his counsel's performance because a different jury panel acquitted a co-defendant in a different case based on different charges. Acknowledging Indiana's “strong respect for the conscientiousness, wisdom, and common sense of juries,” our Supreme Court has held that “[j]ury verdicts in criminal cases are not subject to appellate review on grounds that they are inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010). Given this declaration, we conclude that a jury verdict cannot be subject to appellate review for the reason that it is inconsistent, contradictory, or irreconcilable with a jury verdict in a different case with different charges and a different jury.

[23] Furthermore, even if we assume that witnesses giving different testimony at a different trial somehow amounts to error by Brisker's counsel, Brisker fails to show that counsel's performance prejudiced him. While Anderson was charged with attempted murder, Brisker was charged only with possessing a firearm. The testimony from Anderson's trial cited by Brisker relates to whether it was Anderson or another unidentified individual that shot at Carter; it does not pertain to whether Brisker possessed a gun that night. Moreover, had the jury been presented with this testimony at Brisker's trial, it would have been entitled to consider and weigh it against, among other evidence, the video it viewed that showed Brisker in possession of a gun at the scene that night, even if it was not the gun that was fired at Carter. See Appellant's App. Vol. 2, p. 81 (Conclusion of Law #2). Thus, we cannot say there is a reasonable probability that, but for counsel's alleged errors, the result of Brisker's trial would have been different.

III. Ineffective Assistance of Appellate Counsel

[24] Brisker contends his appellate counsel was ineffective for failing to attempt to challenge this Court's decision in his direct appeal with a petition for rehearing or a petition to transfer. We apply the same standard of review to claims of ineffective assistance of appellate counsel as we do to claims of ineffective assistance of trial counsel: “the post-conviction petitioner must show that appellate counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for the deficient performance of counsel, the result of the proceeding would have been different.” Manzano v. State, 12 N.E.3d 321, 329 (Ind. Ct. App. 2014), trans. denied.

[25] Generally, claims of ineffective assistance of appellate counsel fall into three basic categories: (1) counsel's actions denied the defendant access to an appeal, (2) counsel failed to raise issues on direct appeal resulting in waiver of those issues, and (3) counsel failed to present issues well. Hollowell v. State, 19 N.E.3d 263, 270 (Ind. 2014). We agree with Brisker that his argument falls into the latter category.

[26] Claims of inadequate presentation of issues are the most difficult for defendants to advance and for reviewing courts to confirm. Id. This is so because such claims essentially require the reviewing court to reexamine specific issues it has already adjudicated to determine “ ‘whether the new record citations, case references, or arguments would have had any marginal effect’ ” on its previous decision. Id. (quoting Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997)) (emphasis omitted). Moreover, while judicial scrutiny of counsel's performance is always extremely deferential, in challenges that rest on counsel's presentation of a claim, we afford the highest level of deference. Bieghler, 690 N.E.2d at 196. And “[r]elief is only appropriate when the appellate court is confident it would have ruled differently.” Id.

[27] In Brisker's direct appeal, his appellate counsel alleged the trial court abused its discretion in failing to limit the admissibility of Carter's out-of-court statements to impeachment evidence only. Upon a review of the record, we found nothing to suggest that defense counsel made a specific objection on that basis or requested an admonishment or a jury instruction limiting the use of Carter's statements. Brisker, No. 20A-CR-707, at *3. Accordingly, we concluded that any challenge to the use of Carter's statements as substantive evidence was waived. Id. Waiver notwithstanding, we went on to discuss whether the trial court abused its discretion in admitting Carter's statements, and we concluded that his statements were admissible under Evidence Rule 801(d)(1)(C) as the identification of a person shortly after perceiving the person. Id. at *4.

[28] Brisker cannot succeed on his post-conviction claim asserting appellate counsel's deficient performance. To demonstrate prejudice, Brisker would have to show there is a reasonable probability that the result of his direct appeal would have been different had his appellate counsel filed a petition for rehearing or a petition for transfer alleging that this Court “erred by raising Rule 801(d)(1)(C) sua sponte,” and he cannot do so. Appellant's Br. p. 23.

[29] This Court can “affirm the trial court on any reasonable basis apparent in the record, even if that basis was not relied on by the parties or the trial court.” Graff v. State, 250 N.E.3d 497, 506 (Ind. Ct. App. 2025). Moreover, our Supreme Court has previously recognized this principle in the same circumstances we encounter here. In discussing claims of ineffective assistance of appellate counsel for inadequate presentation of issues, the Court stated that “an Indiana appellate court is not limited in its review of issues to the facts and cases cited and arguments made by the appellant's counsel. We commonly review relevant portions of the record, perform separate legal research, and often decide cases based on legal arguments and reasoning not advanced by either party.” Bieghler, 690 N.E.2d at 195. As we are confident that neither this Court nor the Supreme Court would have ruled differently had appellate counsel petitioned for review of our decision, relief is not appropriate here.

Conclusion

[30] Because Brisker failed to show that witness testimony from a co-defendant's trial was newly discovered evidence and that he was prejudiced from the allegedly ineffective assistance of his trial and appellate counsel, he has failed to meet his burden of showing that the post-conviction court erred by denying relief on these claims. Accordingly, we affirm the post-conviction court's denial of post-conviction relief.

[31] Affirmed.

Crone, Senior Judge.

Weissmann, J., and Felix, J., concur.