Isiah L. Barker, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] In this post-conviction appeal, Isiah Barker argues the post-conviction court erred in denying his petition for relief. Finding that he waived many of the issues he raises, the post-conviction court did not err in concluding he was not denied effective assistance of trial counsel, and that he was afforded a procedurally fair post-conviction hearing, we affirm.

Facts and Procedural History

[2] The following facts were articulated by a panel of this Court in deciding Barker's direct appeal:

In June 2011, Cynthia Funches, a certified nursing assistant employed at Renaissance Park South, was in a relationship with Barker and was pregnant with his child. Funches lived in an apartment in Highland, Indiana, and her lease listed her as the only resident ․

On June 21, 2011, Funches called Genett Clay, a nurse, and told her that she wanted to call off from work because she was bleeding and needed to go to the hospital. Clay heard a male voice instructing Funches to “hang up the damn phone, because we have to go.” Funches called Clay again, and Clay heard the same male voice state: “I don't have time for this s[***]. Hang up the phone. We have to go to the hospital.”

Around 11:00 p.m. on June 21, 2011, Vivian Pettigrew, who lived in the same apartment complex as Funches, left her apartment and went to her car to retrieve her laundry. She observed two men coming down the stairs with a bin and recognized one of the men as Funches's boyfriend, Barker. Pettigrew made eye contact with Barker, he “ducked his head real quick,” and “it troubled [her] spirit.” She observed the men struggle with the bin and head towards a green Caravan that Pettigrew recognized as the same Caravan that Barker had previously driven. She also observed that the Caravan had two mattresses on top.

On June 22, 2011, Funches's sister, Shaunte Ruth, called the office of Funches's apartment complex, told a woman that she was trying to contact her sister and had not heard from her, and asked if she would go to the apartment and see if she received a response at the door. Laura Newton and her co-worker, Pamela Heeringa, went to Funches's apartment, knocked on the door, received no response, and then entered the door using a key.

Heeringa found the apartment in “complete disarray.” Newton and Heeringa looked for Funches, but did not find her․ Heeringa locked the door, returned to the leasing office, and called the police.

․

When [Highland Police] Officer [Brandon] Norris first entered the apartment, he saw that the door trim looked as if it had been damaged. He observed that “everything was stacked up in the kitchen” and “everything was in disarray,” and the officers proceeded in “to make sure that there was no—nothing—you know, foul play or anything—anything crazy inside, because just how things were stacked up and everything was in disarray, and it looked a little suspicious.” ․ Officer Norris smelled an odor “that could be recognizable as a cleaning product or bleach” and observed that the kitchen was full of furniture and what he thought was rolled-up fragments of carpet in the living room. The bedroom did not have any mattresses or carpet, stains were present on the floor, and the closet mirror was cracked. Officer Norris believed he was standing in a crime scene. He canvassed the entire apartment and did not find Funches. He “went over to the carpet, pulled a piece or two and rolled it back and noticed immediately that there was some blood stain on the carpet.” ․

․ [Officer Norris called Highland Police Detective Mark Santino to the scene, and at the time Santino entered the apartment, he] believed that Funches was alive. During his walkthrough of the living room, kitchen, and hallway, Detective Santino did not see a cot, a sleeping bag, or anything to indicate that someone was staying there that day. The apartment appeared abandoned “[f]or all practical purposes.” In the bedroom, Detective Santino observed that there was not even a mattress or box spring and it did not appear to him that anyone was staying in the bedroom. Detective Santino also observed some sort of dark substance on the concrete which he believed to be blood, a couple of speckles of blood in the hallway, and a bucket with a liquid and a rag inside that had a red-like substance on it․

Detective Santino asked Heeringa who was on the lease, and she confirmed that Funches was the leaseholder. Detective Santino had contact with Funches's family and learned that Funches might be in the company of Barker and that she was potentially being held against her will. Detective Santino was not sure if the victim was deceased or still alive, and he then called the Lake County Crime Lab to obtain a second opinion and start processing the apartment with the goal of finding Funches. The crime lab took photographs of the apartment and collected pieces of carpeting, a piece of paper, and swabs of an unknown red substance.

Meanwhile that same day, Chicago Police Detective Stan Kalicki responded to a call regarding a body found in a garage in Chicago by a homeowner. Detective Kalicki arrived at the scene and observed it to be an abandoned house and garage. The homeowner informed the police that he had arrived there earlier in the day and observed the side door that he had just screwed shut was kicked up and a padlock had been placed on it to prevent access. The homeowner cut off the lock, entered the garage, opened a plastic tote container, and discovered a body. The police observed that the body had a uniform for Renaissance Rehabilitation Center, contacted the Center, and learned that Funches was employed there but was not there that day. The police observed a tattoo on the forearm and tentatively identified the body as Funches. It was later determined that Funches suffered stab wounds and died from multiple blunt force trauma and the fetus within her died from asphyxiation anoxia.

Approximately “[a]n hour, ninety minutes,” after Detective Santino arrived at Funches's apartment, Chicago Police called Detective Santino and informed him that there was a tentative identification of a body found as being Funches based on tattoos of the victim.

After the crime lab left and after Detective Santino learned that Funches was presumed dead, Officer Norris went back into the apartment and collected some pieces of evidence left behind by the crime lab. Detective Santino learned that Officers Norris and Munoz looked through some papers including a Highland Police traffic ticket and a ticket issued to Barker which listed Barker's address as 8350 South Green in Chicago. The police recovered a number of documents from the apartment [which attributed the same Chicago address to Barker]․

On June 23, 2011, Highland Police Detective Lester John Siple prepared a warrant on the basis that the investigation went from a welfare check to a homicide investigation. The warrant was signed by a judge and issued at 11:13 a.m. That day, Indiana State Police Trooper Scott Gilbert focused on the blood stain evidence and collected swabs and a piece of drywall.

Also on June 23, 2011, La Porte County Sheriff Captain Patrick G. Cicero, a member of the International Association of Bloodstain Pattern Analysts, responded to Funches's apartment and completed a bloodstain pattern analysis. Captain Cicero took photographs of the apartment including a photograph of the floor with a “fairly significant[,] stain, reddish brown in color” on the concrete floor and bloodstains on the wall. Captain Cicero observed wooden tack strips for carpeting on the concrete floor, but the carpeting was not present. He also observed the glass on a panel of a folding closet door was cracked and there was dried blood in the channel or track of the door. He determined that the mirror had evidence of bloodstains that had been cleaned, and determined the presence of blood in the bedroom, hallway, and bathroom. He also determined that there were impact patterns in the bathroom and cast off patterns in the hallway.

The police learned that Barker dropped off a minivan that he typically drove with an Illinois license plate to Towanna Johnson's house in Chicago and took her green Taurus which had an Illinois license plate. The Taurus contained a parking permit with an expiration date of June 30, 2011, affixed to the windshield so the vehicle could be legally parked in Chicago. The police discovered a sixty pound bag of Quickrete concrete in the passenger seat as well as a spray cleaner and a brand new brush. In the rear seat of the vehicle, the police discovered a brand new bucket, a brand new gallon sized jug of Liquid Fire, and sulfuric acid. The police determined that these items were purchased from a True Value Hardware Store in Chicago and the bin in which Funches's body was discovered was purchased at Walmart. Video surveillance from these stores showed Barker and Octavius Barlow, Barker's childhood friend. Detective Santino also discovered that there was “a flurry of cell phone activity between” the cell phones of Barker and Barlow from midnight or the late night hours of June 21st into the early morning hours of June 22nd.

On November 1, 2012, the State charged Barker with Count I, murder, and Count II, feticide as a class B felony. On October 7, 2013, Forest Park Police Officer Joseph Carrico executed a traffic stop on a vehicle in which Barker was traveling as a passenger in Georgia. When Officer Carrico asked Barker for his name, Barker told him it was Zoe Lyons. Barker attempted to flee but was eventually arrested.

On February 10, 2015, Barker filed a motion to suppress evidence seized from “Defendant's apartment located at 9059 Southmoor Street, Apartment 20, Highland, Indiana.” ․

․

On June 1, 2016, [after a hearing,] the court entered an eight-page order ․ denying Barker's motion to suppress․

In October and November 2016, the court held a jury trial. Prior to trial, Barker's counsel renewed her request to suppress all evidence from Funches's apartment, and the court denied the motion. The State presented the testimony of numerous witnesses. Ruth, Funches's sister, testified on cross-examination that Barker resided in the same apartment with Funches. In part, the State presented evidence that a screwdriver was recovered from the apartment. The DNA profile obtained from the swab of the screwdriver matched Barker's DNA profile. Dr. John D. Feczko testified that some of the wounds could have been caused by a screwdriver. Sharon Pollock, the forensic DNA analyst, testified that Funches's DNA was not found on the screwdriver. The jury found Barker guilty as charged. The court sentenced him to sixty-four years for murder and nineteen years for feticide as a class B felony and ordered the sentences to be served consecutively to each other for an aggregate sentence of eighty-three years.

․

Barker v. State, 96 N.E.3d 638, 641-46 (Ind. Ct. App. 2018) (internal footnotes and record citations omitted) (second, sixth, seventh, and ninth alterations in original), trans. denied.

[3] On direct appeal, Barker raised the single issue of whether the trial court abused its discretion in the admission of evidence. Id. at 641. He argued the evidence obtained from the warrantless search of Funches's apartment violated his rights under the state and federal constitutions. Id. at 647. The panel affirmed Barker's convictions, reasoning (1) he did not have standing to challenge the search, (2) the exigency and consent exceptions to the Fourth Amendment warrant requirement applied, (3) any Fourth Amendment violation was harmless beyond a reasonable doubt, and (4) the search was reasonable under Article 1, Section 11 of the Indiana Constitution. Id. at 647-54.

[4] In its harmless error analysis, the panel discussed additional relevant evidence:

[At trial, Pettigrew] testified that she did not identify anyone in the photo lineups she was shown by the police “right then and there,” but she identified Barker as Funches's boyfriend whom she saw that night. On cross-examination, when asked if it “[d]idn't look like” Barker on the photo lineup, she answered: “I wasn't quite sure. Maybe I should say that. But I know it's him now.”

During cross-examination, Detective Santino indicated that Barker's Illinois driver's license, a traffic warning issued to Barker, a receipt for motor vehicle immobilization and/or impound vehicle with Barker's name on it, and Barker's application for a truck driving school, were found in the apartment. Defense counsel introduced and the court admitted these documents, all of which indicated Barker's address as being in Chicago.

FBI Special Agent Peasley testified that he investigated identifying markers on the bin in which Funches's body was found. He was able to locate the manufacturer of the tote in which Funches's body was found and determined that totes with that UPC code were sold only at Walmart. Surveillance video and photos taken from the video on the evening of June 21, 2011, from the Walmart in Schererville were admitted. Highland Police Investigator Shaginaw testified that Barker and Barlow were seen in the Walmart video.

Highland Police Investigator Douglas Shaginaw testified that he investigated where the items found in the green Taurus were purchased. He retrieved a video from a True Value located in Chicago, determined that a vehicle arrived on the morning of June 22, 2011, recognized a person on the surveillance video as Barker, and learned that the person to Barker's left in the video was Barlow. Investigator Shaginaw took photographs of certain pieces of merchandise inside the store, including Quickrete, blue and white handled scrub brushes, Liquid Fire, and a plastic bucket, which were all similar to the evidence that was collected from the Taurus. He also photographed a Fortress brand lock at the store. The court admitted a sales receipt from True Value, and Investigator Shaginaw testified that the prices on the receipt correlated to the prices of the items found in the Taurus as well as a price of $6.49 which correlated to the Fortress brand lock. He testified that the lock in the True Value was identical to the lock that was used to secure the garage which contained Funches's body.

Sharon Pollock, a forensic DNA analyst employed by the Indiana State Police Laboratory, testified that the partial Y–STR DNA profile obtained from Funches's fingernail clipping was consistent with the Y–STR DNA profile obtained from Barker.

Id. at 652-53 (internal record citations omitted) (second alteration in original).

[5] On November 28, 2018, Barker filed a pro se petition for post-conviction relief. Invoking the state and federal constitutions, he alleged he had been denied (1) the effective assistance of trial counsel, (2) the effective assistance of appellate counsel, and (3) due process of law. He argued his trial counsel, Angela Trapp, had been “ineffective for failing to conduct the interview and[/]or investigate” True Value Hardware employees, Barlow, and Pettigrew, “failing to challenge [the] search of [his] vehicle” on certain grounds, and “failing to object to prosecutorial misconduct when [the] prosecutor improperly vouched for a witness.” Appellant's Appendix Vol. 2 at 43-44. However, it became clear that Barker “was alleging that Trapp performed deficiently by failing to object to the True Value Hardware store video and receipt and failing to adequately cross-examine Pettigrew ․” Appellee's Brief at 16 n.1 (State's concession that this was Barker's argument); see Appellant's App. Vol. 2 at 140-52 (Baker's proposed findings of fact and conclusions of law).

[6] In January 2019, shortly after Barker filed his petition, a public defender entered an appearance on his behalf. After investigating Barker's claims, the public defender withdrew in November 2019 pursuant to Indiana Post-Conviction Rule 1(9)(c). Thereafter, Barker represented himself in the post-conviction proceedings for nearly two years before attorney Russell Brown entered an appearance on his behalf in September 2021. His original pro se petition was never formally amended.

[7] On March 22, 2024, the post-conviction court held an evidentiary hearing on Barker's petition. During the hearing, Brown made an oral motion to amend the petition to add that Trapp performed deficiently by failing to raise a substantive double jeopardy argument related to Barker's convictions for murder and feticide. See Appellant's App. Vol. 2 at 145 (Barker's proposed findings and conclusions applying the actual evidence test from Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). Over the State's objection, the court permitted the amendment.¹

[8] Trapp, who had been an attorney for sixteen years at the time of the post-conviction hearing, testified that when Barker hired her in 2015, about half of her work was criminal defense with a concentration on sex crimes and domestic violence. Barker's case was her first murder trial as private counsel, but she had participated in murder cases in her prior work as a deputy prosecutor.

[9] Trapp testified that she did not object to admission of the True Value Hardware video and receipt because Detective Shaginaw, who sponsored these two exhibits, provided “enough indicia of reliability that [she] didn't have an objection ․” Transcript at 13. Specifically, she recalled that the detective had “canvassed the [store],” spoken with True Value employees, personally accessed the stored video, and “pulled the receipts and ․ matched it all up[.]” Id. With respect to the authenticity of the video, she had no “reason to believe that the evidence had been changed or altered in any way from the way it was presented by the detective and what was produced to [her], because it was date and time stamped.” Id. at 25. Moreover, she thought “it was in Mr. Barker's best interest” not to object to the video “because [an objection] might [have] draw[n] more attention to the evidence.” Id.; see Jury Trial Tr. Vol. 5 at 29-33 (publication of the True Value Hardware surveillance videos). When asked if the video and receipt were damaging to Barker's case, Trapp acknowledged “it wasn't great evidence for him” but stressed that “[t]here was so much evidence, it was, like, covering the floors of the courtroom.” Tr. at 14. She later agreed “there was an overwhelming amount of evidence involving Mr. Barker at True Value[.]” Id. at 24. Trapp did not recall the extent of her cross-examination of Pettigrew, who had been unable to identify Barker when interviewed by the police about a week after the murder. She also testified that she did not consider making a double jeopardy argument.

[10] At the hearing, Barker did not produce any evidence that Trapp performed deficiently by failing to object to prosecutorial misconduct. Nor did he present anything to support his claim that his appellate counsel had been ineffective. Likewise, he did not include those issues in his proposed findings of fact and conclusions of law.

[11] On September 26, 2024, the court entered findings of fact and conclusions of law denying Barker's petition. The court denied Barker's substantive double jeopardy claim on the merits. It then acknowledged Barker's position that the True Value Hardware video was inadmissible under the silent witness theory and that the receipt roll was inadmissible hearsay, but it concluded he had not met his burden to show objections on these grounds would have been sustained. It further reasoned that Barker suffered no prejudice because of Trapp's failure to object to admission of these items because “the totality of the evidence against [him] was so substantial ․” Appellant's App. Vol. 2 at 176. As to Pettigrew, the court observed that “Trapp engaged in a lengthy cross[-]examination of Pettigrew” and “was able to confront [her] multiple times attacking [her] credibility in that she had multiple prior contacts with [Barker] and [Funches] and she should have had no problem identifying [Barker] in a photo array.” Id. at 177. The court also noted that Trapp contested Pettigrew's credibility in her closing argument by reiterating that although Pettigrew had allegedly seen Barker about a week before being shown the photo array, “she wasn't able to pick him out ․ but was able to identify him in court years later.” Id. Accordingly, it concluded that Barker had failed to prove that Trapp performed deficiently or prejudiced him in her cross-examination and impeachment of Pettigrew. Barker now appeals.

Discussion and Decision

1. Standard of Review

[12] An appeal from the denial of post-conviction relief is an appeal from a negative judgment. Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). To prevail, the appellant “must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Id. This means we will affirm “unless ‘there is no way within the law that the court below could have reached the decision it did.’ ” Bradbury v. State, 180 N.E.3d 249, 252 (Ind. 2022) (quoting Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), reh'g denied, cert. denied), as modified on reh'g, cert. denied. We review the post-conviction court's legal conclusions de novo, but we defer to its factual findings unless they are clearly erroneous. Humphrey, 73 NE.3d at 682. Where, as here, the same judge presided over the trial and post-conviction proceedings, the post-conviction court's “findings and judgment [are] entitled to ‘greater than usual deference’ ․” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013) (quoting McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct. App. 2012), trans. denied), reh'g denied, trans. denied.

[13] Barker opted to pursue this appeal pro se. He does not receive “special consideration by virtue of his pro se status.” Kelley v. State, 166 N.E.3d 936, 937 (Ind. Ct. App. 2021). Rather, we will hold him “to the same legal standards as licensed attorneys[,]” meaning he must follow established rules of procedure and face the consequences of his failure to do so. Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016), reh'g denied. While we look past minor issues with his filings, such as his initial brief's incomplete and improperly argumentative statement of the facts, see Ind. Appellate Rule 46(A)(6), we must consider whether he properly preserved and presented the issues he raises on appeal.

2. Waiver

[14] Barker purports to present eight issues on appeal, see Appellant's Br. 4-5, but he has waived or forfeited most of them. Waiver can occur at various stages of the proceedings for various reasons. Here, Barker waived most of his claims for one or more of the following reasons: (1) failing to raise claims that were known and available at the time of trial or direct appeal; (2) failing to include claims in his petition for post-conviction relief and proposed findings of fact and conclusions of law; (3) failing to develop a cogent argument on appeal; and (4) raising issues on appeal for the first time in his reply brief. See Ind. Post-Conviction Rule 1(1)(b), (8); App. R. 46(A)(8)(a); Isom v. State, 170 N.E.3d 623, 654-55 (Ind. 2021) (noting failure to include claims in proposed findings and conclusions can constitute waiver and finding multiple instances of waiver), reh'g denied; Bunch v. State, 778 N.E.2d 1285, 1286-90 (Ind. 2002) (discussing waiver versus procedural default, waiver of issues known and available at trial or on direct appeal, and waiver by failure to raise issues in the principal appellate brief); Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.”), reh'g denied, cert. denied; Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999) (“Failure to present a cogent argument constitutes a waiver of that issue for appellate review.”).²

[15] In the end, Barker has preserved two of his post-conviction claims for review: whether Trapp rendered ineffective assistance of counsel at his trial by (1) inadequately cross-examining and impeaching Pettigrew, and (2) failing to object to the admission of the True Value Hardware video. We address these issues and then consider his assertions related to his post-conviction counsel's performance.

3. Ineffective Assistance of Trial Counsel

[16] Ineffective assistance of counsel claims under the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana Constitution require the petitioner to prove by a preponderance of the evidence that: “(1) counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) the deficiency was so prejudicial as to create a reasonable probability the outcome would have been different absent counsel's errors.” Bradbury, 180 N.E.3d at 252 (applying the test articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), reh'g denied); see Hanks v. State, 71 N.E.3d 1178, 1183 (Ind. Ct. App. 2017) (noting “[o]ur state constitution protects the same right” as the federal constitution in this respect), trans. denied; P-C.R. 1(5) (burden of proof).

[17] When assessing performance, we presume counsel “exercised ‘reasonable professional judgment’ and rendered adequate legal assistance” throughout the proceedings. Wilson v. State, 157 N.E.3d 1163, 1177 (Ind. 2020) (quoting Stevens, 770 N.E.2d at 746), reh'g denied. “Counsel is afforded considerable discretion in choosing strategy and tactics, and these decisions are entitled to deferential review.” Bradbury, 180 N.E.3d at 252. For that reason, “[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Wilson, 157 N.E.3d at 1177 (quoting Stevens, 770 N.E.2d at 747) (alteration in original). Defendants have a right to reasonably competent representation, “not perfect advocacy judged with the benefit of hindsight.” Bradbury, 180 N.E.3d at 252 (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003)).

[18] In the event counsel's performance fell short of prevailing standards, the defendant must show the “deficient performance actually prejudiced [his] defense.” Wilkes v. State, 984 N.E.2d 1236, 1241 (Ind. 2013). In other words, he must demonstrate “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at 694). “A reasonable probability is one that is sufficient to undermine confidence in the outcome.” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010), reh'g denied.

3.1. Cross-Examination and Impeachment of Pettigrew

[19] “It is well settled that the nature and extent of cross-examination is a matter of strategy delegated to trial counsel.” Myers v. State, 33 N.E.3d 1077, 1101 (Ind. Ct. App. 2015) (quoting Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App. 1997), trans. denied), reh'g denied, trans. denied. Likewise, “the method of impeaching witnesses is a tactical decision and a matter of trial strategy that does not amount to ineffective assistance.” Kubsch, 934 N.E.2d at 1151. Despite the nearly unfettered discretion trial counsel is afforded in this area, Barker argues Trapp failed to effectively cross-examine Pettigrew after she identified him for the first time at trial.

[20] On direct examination, Pettigrew identified Barker as the man she'd made eye contact with on June 21, 2011, as he and another man carried a heavy object to a green Caravan that had two mattresses on top of it. At the time, she had understood the man to be Funches's boyfriend. She also admitted that when she spoke with the Highland police about a week after the murder, she was unable to identify Barker in a photo array.

[21] Then, as the post-conviction court found, “Trapp engaged in a lengthy cross[-]examination of Pettigrew ․” Appellant's App. Vol. 2 at 177. Trapp established that Pettigrew had only briefly lived next door to Funches before she was murdered and had not spent meaningful time with her or Barker. Moreover, Trapp drilled down on the fact that Pettigrew had been unable to identify Barker in the photo array. She got Pettigrew to concede that none of the individuals in the photo array “look[ed] like [Funches's boyfriend] to [her].” Jury Trial Tr. Vol. 3 at 196. In response to Trapp's questions, Pettigrew explained that “[t]hings was just happening so fast” and she “wasn't going to just pick no person until [she] was sure that that was his face” in the photo array. Id. (sic throughout). Though she “wasn't quite sure” at the time she was shown the array, Pettigrew declared at trial, “But I know it's him now.” Id. Trapp also elicited that Pettigrew had testified in a pre-trial hearing but identified Barker for the first time at trial.

[22] Trapp also endeavored to cast doubt on Pettigrew's credibility when examining law enforcement officers and in her closing argument. Specifically, she prompted Detectives John Swisher and Mark Santino to clarify that Pettigrew had been shown two arrays of six photographs, one which included Barker and a second which featured Barlow, but she had been unable to identify either man as those she observed on June 21, 2011. Trapp also established that the photo arrays had been lost, so the jury would not be able to inspect them in its assessment of Pettigrew's testimony. In closing, Trapp asked the jury not to “rely on [Pettigrew's] assumptions about what she believe[d] she saw” given that she “could not identify Isiah Barker in a photo array” shortly after the events took place. Jury Trial Tr. Vol. 6 at 174-75. She argued “[i]t defie[d] logic that [Pettigrew] could somehow identify [Barker] here in court” almost six years after failing to identify him in the photo array. Id. at 175. She reiterated this point throughout her closing argument.

[23] Unsatisfied with Trapp's protracted cross-examination of Pettigrew and other efforts to cast doubt on her credibility, Barker argues she should have attempted to introduce the recorded interview Pettigrew completed with detectives shortly after the murder and cross-examined Pettigrew about “critical inconsistencies on her financial motive to testify.” Appellant's Br. at 18. However, we agree with the State that Trapp's performance related to Pettigrew was more than satisfactory and her plausible strategic decision not to take these steps is “virtually unchallengeable[.]” Strickland, 466 U.S. at 690. Trapp was not ineffective in her cross-examination and impeachment of Pettigrew.³

3.2. True Value Hardware Video

[24] To show trial counsel was ineffective for failing to object to the admission of evidence, “a defendant must prove that an objection would have been sustained if made and that he was prejudiced by counsel's failure to make an objection.” McKnight v. State, 1 N.E.3d 193, 202 (Ind. Ct. App. 2013). Barker argues the True Value Hardware surveillance video could not be properly authenticated “without [the] testimony [of] someone with actual knowledge of the surveillance system,” such as an “employee or representative of True Value Hardware ․” Appellant's Br. at 22. But under the circumstances, we disagree with his claim that “[Detective] Shaginaw could not authenticate the system or verify the integrity of the footage.” Id.⁴

[25] Surveillance footage may be admitted “as substantive rather than demonstrative evidence” under the silent witness theory. McCallister v. State, 91 N.E.3d 554, 561 (Ind. 2018). Heightened foundational evidence is required under this theory because the sponsoring witness typically did not observe the scene sought to be admitted and therefore cannot testify to its accuracy. Wise v. State, 26 N.E.3d 137, 141-42 (Ind. Ct. App. 2015), trans. denied. For the footage to be admitted, “the witness must provide testimony identifying the scene that appears in the image ‘sufficient to persuade the trial court ․ of their competency and authenticity to a relative certainty.’ ” Id. at 142 (quoting Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014), cert. denied) (omission in original). This includes “evidence describing the process or system that produced the videos or photographs and showing that the process or system produced an accurate result.” McFall v. State, 71 N.E.3d 383, 388 (Ind. Ct. App. 2017). “[T]he surrounding circumstances can be used” to address these foundational requirements. Id.

[26] Contrary to Barker's categorical assertion, there is no rule that an employee or representative of an establishment must provide the authenticating testimony for surveillance footage obtained therefrom. See Irwin v. State, 229 N.E.3d 567, 571-72 (Ind. Ct. App. 2024) (finding officer adequately authenticated security camera footage obtained from an apartment given his testimony about his familiarity with the security system and his conversation with the landlord), trans. denied; Kirby v. State, 217 N.E.3d 575, 585 (Ind. Ct. App. 2023) (finding silent witness foundation was required and detectives adequately authenticated security camera video obtained from a residence), trans. denied; Nelson v. State, No. 25A-CR-2898, 2026 WL 2054121, at *3 (Ind. Ct. App. July 16, 2026) (mem.) (finding officer's testimony sufficient to authenticate surveillance footage obtained from an apartment complex); cf. Stott v. State, 174 N.E.3d 236, 246-47 (Ind. Ct. App. 2021) (finding trial court abused its discretion in admitting a detective's photographs of McDonald's surveillance footage where the State failed to produce evidence about the security system, how it operated, or whether the footage had been altered). Rather, the inquiry is whether the sponsoring witness can provide foundational testimony sufficient to authenticate the footage.

[27] Here, Detective Shaginaw testified that upon searching the Taurus connected to Barker, officers discovered “items of evidentiary value” that appeared to have been purchased from a “mom and pop” hardware store on the south side of Chicago where Barker was from. Jury Trial Tr. Vol. 4 at 193. On June 30, 2011, just over a week after Funches was found dead, the detective determined that store was True Value Hardware. That same day, he spoke with the store's owner who allowed him to access the store's surveillance video. As he did, the store's owner located Barker's receipt from the morning of June 22. The store had a manual for accessing the system and downloading footage, and the detective had years of experience in investigations and had become “pretty familiar with certain types of DVRs[,]” so he followed the manual “step by step ․” Id. at 196. When he found the footage of Barker and Barlow, he “downloaded the video” onto a flash drive. Id. at 195. Detective Shaginaw further explained that he toured the store and identified items that matched those found in the Taurus.

[28] Given Detective Shaginaw's testimony, Barker cannot prove Trapp would have been successful had she objected on the grounds that the True Value Hardware video was not properly authenticated under the silent witness theory.⁵ The detective's testimony showed he had knowledge of surveillance systems and accessed the store's system and downloaded the relevant footage himself while following a detailed manual. Moreover, the detective's testimony indicated the footage was authentic—he accessed footage just over a week after it was recorded, familiarized himself with the layout of the store, identified that the store sold the items found in the Taurus, and used Barker's receipt to aid his investigation.⁶ At the post-conviction hearing, Trapp recalled these facts and explained that Detective Shaginaw had presented “enough indicia of reliability that [she] didn't have an objection to” the video. Tr. at 13. On this record, the evidence does not unmistakably and unerringly show that Trapp would have been successful had she made a silent witness objection. See Mullis v. State, 256 N.E.3d 567, 587 (Ind. Ct. App. 2025) (affirming post-conviction court's conclusion that trial counsel was not ineffective for failing to object to the admission of surveillance footage under the silent witness theory), trans. denied.

[29] Even if such an objection might have been sustained, Barker failed to demonstrate he was prejudiced by Trapp's failure to object. To do so, he needed to prove there was a reasonable probability the outcome of his trial would have been different had Trapp objected and the surveillance footage been excluded. Thies v. State, 273 N.E.3d 131, 139 (Ind. Ct. App. 2025), trans. denied. Barker's argument that Trapp's failure prejudiced him because it “allow[ed] the Jury to view evidence not properly authenticated” is circular and does not properly grapple with the second prong of the Strickland test. Appellant's Br. at 22. Nor does his argument in his reply that the “unauthenticated [video] cannot be considered harmless.” Appellant's Reply Br. at 16.⁷ Below, the post-conviction court found that “the totality of the evidence against Barker was so substantial that he was not prejudiced by” the admission of the True Value video. Appellant's App. Vol. 2 at 176. We conclude that Barker has failed to point to evidence that unmistakably and unerringly shows otherwise.

4. Post-Conviction Counsel

[30] Finally, Barker makes numerous allegations related to his post-conviction attorney, Russell Brown. He argues Brown was “ineffective[,]” “failed to ensure that the correct evidence was presented,” and “failed to raise critical issues” which “undermin[ed] [his] ability to obtain relief.” Appellant's Br. at 7-8.

[31] Neither the federal nor state constitutions guarantee a right to counsel in post-conviction proceedings. Graves v. State, 823 N.E.2d 1193, 1196 (Ind. 2005). For that reason, our Supreme Court has “explicitly declined to apply the well-known [Strickland] standard for trial and appellate counsel” when an appellant challenges post-conviction counsel's performance. Id. (citing Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989)). Accordingly, “[w]hen evaluating post-conviction counsel, courts inquire whether ‘counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court.’ ” Hill v. State, 960 N.E.2d 141, 145 (Ind. 2012) (quoting Baum, 533 N.E.2d at 1201), reh'g denied. This is “a low bar for the State to meet ․” Ritchie v. State, 254 N.E.3d 1064, 1067 (Ind. 2025) (Slaughter, J. concurring), reh'g denied, cert. denied; but see Taylor v. State, 882 N.E.2d 777, 784 (Ind. Ct. App. 2008) (reversing the post-conviction court's judgment where the petitioner was deprived of a procedurally fair setting because his attorney “effectively abandoned” him by calling no witnesses, presenting no evidence, failing to submit the trial record, and “render[ing] it impossible for the post-conviction court to conduct the necessary Strickland analysis”).

[32] Here, because Brown appeared at the post-conviction hearing, successfully moved to amend Barker's pro se petition to include a substantive double jeopardy argument, examined Trapp, aggregated the underlying record for the court's consideration, and submitted proposed findings and conclusions on Barker's behalf, we conclude that Barker was not deprived of a procedurally fair setting.

Conclusion

[33] For these reasons, we affirm the post-conviction court's judgment.

[34] Affirmed.

FOOTNOTES

1.   We ultimately find that Barker waived most of the issues he raises in this appeal, and the procedure the post-conviction court employed to ensure the State had an adequate opportunity to address Barker's belated substantive double jeopardy claim shows the court took preservation rules seriously and intended to address all of Barker's properly preserved claims. At the post-conviction hearing, Brown admitted Barker's post-conviction petition did “not specify that [Trapp] didn't raise the Double Jeopardy issue” but argued it had been preserved by general allegations. Transcript at 34. After the State objected, the post-conviction court found that the State “had no notice [of] the Double Jeopardy issue ․ because it's not in the petition[.]” Id. at 35. Noting that post-conviction petitioners may only amend the petition as a matter of right no later than sixty days before the final hearing, see Ind. Post-Conviction Rule 1(4)(c), the court gave the State thirty days to submit evidence on the double jeopardy issue before deciding whether to permit the amendment. The State declined to submit additional evidence but reiterated its “object[ion] to any modification, additional claims, or changes to [Barker's] [p]etition ․” Appellant's App. Vol. 2 at 138. The court subsequently ruled, “Over objection, the double jeopardy issue will be included in the petition for post-conviction relief.” Id. at 139.

2.   A few examples of Barker's waivers include:• Barker abandoned a preserved argument that the True Value Hardware receipt was not properly authenticated by making no argument on appeal in that respect.• While he preserved a substantive double jeopardy argument and purports to appeal a double jeopardy issue, his appellate argument in that regard focuses only on whether he was denied a fair trial because the murder and feticide counts were not bifurcated. Because he failed to cogently address the double jeopardy argument he preserved, he waived the issue. In his reply brief, Barker acknowledges that his post-conviction attorney “raised a general Double Jeopardy claim,” but argues his “PCR counsel was prejudicially ineffective ․ for completely failing to litigate ․ [Trapp's] failure to demand bifurcation of the substantive feticide charge.” Appellant's Reply Br. at 11. However, in addition to the fact that ineffective assistance of post-conviction counsel is not itself a cognizable claim for post-conviction relief, Matheney v. State, 834 N.E.2d 658, 663 (Ind. 2005), Barker waived this issue by presenting it for the first time in his reply brief, Van Hawk v. State, 275 N.E.3d 954, 977 n.6 (Ind. Ct. App. 2026), trans. denied.• Barker claims his sentence should be vacated and he should be resentenced because the trial court improperly “reli[ed] on speculation rather than record-supported facts” when articulating the aggravating nature and circumstances of the crime at sentencing. Appellant's Br. at 14; see Sentencing Tr. Vol. 2 at 41-45 (trial court making “logical deductions ․ about the way that th[e] crime occurred”). He waived this freestanding challenge to his sentence because the issue was known and available to him on direct appeal. See Reed v. State, 856 N.E.2d 1189, 1193-94 (Ind. 2006) (finding post-conviction petitioner could not “raise a freestanding claim of sentencing error” but addressing his sentencing error claim brought “through the lens of ineffective assistance of [appellate] counsel”).• Barker did not preserve the issue of whether Trapp failed to challenge the legality of the search of the Dodge Caravan “despite [his] clear ownership interest in the vehicle[.]” Appellant's Br. at 11. He made a different argument in his post-conviction petition and then failed to include the issue in his proposed finding and conclusions; consequently, he received no ruling from the post-conviction court on the issue.• To the extent Barker's reply brief raises a Sixth Amendment Confrontation Clause issue related to the statements of the Chicago homeowner who found Funches's body, he waived that issued by failing to raise it in his proposed findings and conclusions and his initial brief on appeal. Moreover, his petition mentions the issue in the context of appellate counsel's ineffectiveness, whereas his reply brief attributes the failure to his trial and post-conviction counsels.• Barker speculates that “newly discovered evidence” shows his conviction was obtained through false evidence and that the post-conviction judgment was the product of fraud or mistake because his post-conviction counsel “deliberately introduced[ ] falsely authenticated” vehicle records at the post-conviction hearing. Appellant's Br. at 11. However, the post-conviction court was not given the opportunity to rule on a claim of newly discovered evidence under Post-Conviction Rule 1(1)(a)(4), nor was it given the opportunity to consider whether Barker should have been afforded relief from the post-conviction judgment pursuant to a duly filed Trial Rule 60(B) motion. See Fields v. State, No. 24A-PC-1066, 2025 WL 369092, at *2 (Ind. Ct. App. Feb. 3, 2025) (mem.) (considering a post-conviction petitioner's appeal of a Trial Rule 60(B) motion). We take no position on the merits of such claims or whether they were otherwise preserved.

3.   In his argument related to Pettigrew, Baker argues for the first time that Trapp was ineffective for failing to object to her in-court identification, which he claims was made “under inherently suggestive conditions”—as Barker is black and was seated between two white attorneys at the defense table when she identified him. Appellant's Br. at 18. Because he did not raise this issue below, it is waived for appeal. Waiver notwithstanding, Pettigrew's in-court identification did not contain a level of suggestiveness that would constitute reversible error. See Jeter v. State, 888 N.E.2d 1257, 1266 (Ind. 2008), cert. denied. While every in-court identification carries some level of suggestiveness given “the practical necessity of having the [defendant] sit at the defendant's table with defense counsel[,] ․ [s]uggestiveness is proscribed only when it can be reasonably avoided under the circumstances.” Id. “[A]bsent any extraordinary effort to single out the defendant at trial, in-court identification is not unduly suggestive where the witness is firm in [her] identification.” Id. Here, where there were no extraordinary or abnormal efforts to single out Barker in the courtroom and Pettigrew unequivocally declared at trial that he was the man she'd made eye contact with on June 21, 2011, her in-court identification was permissible. Pettigrew's prior inability to identify Barker and the extended period between the time of the crime and her ultimate identification went to her credibility, which Trapp vigorously attacked. See id.

4.   Because he did not raise them in his initial brief, Barker waived his arguments in his reply that the video “lack[ed] relevance under Indiana Evidence Rule 401” or should have been “excluded under Indiana Evidence Rule 403 ․” Appellant's Reply Br. at 15.

5.   When the State moved to admit the True Value Hardware surveillance footage, Trapp did in fact object that the foundation laid had been inadequate. She then asked several preliminary questions which revealed that Detective Shaginaw had not reviewed the exhibit prior to trial and did not know whether it was a true and accurate copy of the footage he'd recovered from True Value Hardware. Her questions forced the State to introduce Detective Shaginaw's original copy under a different exhibit number.

6.   On cross-examination, Trapp pointed out that there was a slight discrepancy between the time stamp on the video and the time stamp on the receipt. See Jury Trial Tr. Vol. 4 at 236-38. This deficiency would not have been fatal to admission under the silent witness theory, see Kirby, 217 N.E.3d at 588-89, and the fact that Trapp elicited this information weighs in favor of finding her representation was effective.

7.   The only specific argument Barker makes about prejudice related to the True Value Hardware video is that it “served as a centerpiece of the State's circumstantial case” and was used “to argue that Appellant purchased the lock used to conceal the victim's body.” Appellant's Reply Br. at 16. In reality, it was the contents of the Taurus, Barker's receipt, and Detective Shaginaw's testimony regarding his personal investigation that allowed the prosecution to argue that the evidence showed Barker had purchased the lock found at the crime scene from True Value Hardware.

DeBoer, Judge.

Mathias, J., and Kenworthy, J., concur.