Opinion
23A-PC-1134
06-04-2024
Alva Funk, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
APPELLANT PRO SE Alva Funk, Miami Correctional Facility Bunker Hill, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Grant Superior Court The Honorable Jeffrey D. Todd, Judge Trial Court Cause No. 27D01-1707-PC-9
APPELLANT PRO SE Alva Funk, Miami Correctional Facility Bunker Hill, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana.
MEMORANDUM DECISION
CRONE, JUDGE.
Case Summary
[¶1] Alva Funk, pro se, appeals the denial of his petition for post-conviction relief (PCR), the denial of his motion for change of judge, and the denial of two subpoena requests. We affirm.
Facts and Procedural History
[¶2] On the morning of April 5, 2013, a man wearing coveralls, a ball cap, and "a mask in the form of an old man's face" approached a teller's window in a STAR Financial Bank branch in Marion. Funk v. State, No. 27A02-1601-CR-170, 2016 WL 7493403, at *1 (Ind.Ct.App. Dec. 29, 2016), trans. denied (2017).
The man handed the teller a note telling her not to "trigger an alarm[,]" to give him her "one hundreds, fifties, and twenties" from her teller's drawers, and that he had "a weapon." Id.
As the teller read the note, the man twice reached his right hand into the breast of his coveralls and then kept it there, hidden from the teller, until she complied. The teller handed the man all the money in her drawers. The man stuffed the money, almost $8,000, into a Burger King paper bag, along with the note, and walked to the front doors. Near the doors, the man accidentally dropped a small, black piece of plastic on the ground. He then left through the front doors as he had entered.Id. (footnote omitted). "[T]he surveillance cameras of a Walmart store down a side road from the bank captured footage of a small, black car traveling 'relatively quickly' away from the bank" shortly after the robbery. Id. (transcript citation omitted).
[¶3] "The dropped piece of plastic was recovered and submitted to the forensic scientists at the Indiana State Police lab in Indianapolis for DNA testing. The testing returned one complete, single-source DNA profile." Id.
That profile was checked against CODIS, the national index of DNA profiles maintained by the U.S. Department of Justice, where the profile was found to match that of a convicted felon currently on parole from a 1993 conviction for intimidation, resisting law enforcement, and criminal recklessness: Alva Funk of Lafayette, Indiana.Id. "On the basis of that match, and on the basis of other fruits of ongoing investigations into three other bank robberies committed under similar circumstances by similar means," the Marion Police Department sought and obtained "a search warrant from Judge Jeffrey Todd of Grant Superior Court for the home of Funk's sister and niece in Lafayette, where Funk was known to be living[.]" Id.
[¶4] "With the help of the Lafayette Police Department, the Marion Police Department executed the search warrant for the Lafayette house on April 26, 2013. Just as officers were preparing to enter the house, Funk was observed driving away from it." Id. at *2. "Some distance away from the house, Funk was pulled over, arrested, and taken to a Lafayette police station for questioning." Id. Funk was later transported to the Grant County Jail.
[¶5] Pursuant to the search warrant, police recovered coveralls, a ball cap, a Burger King bag, and "a box of .38 Special ammunition with five rounds missing." Id. "In the course of their search, officers discovered what they believed to be incriminating items beyond those particularly described in the warrant." Id. "Wishing to seize those items as well, on-scene officers called the lead investigator and asked for direction. The lead investigator in turn called Judge Todd to ask for an 'extension' of the search warrant to authorize seizure of the newly discovered items." Id. "Judge Todd granted the investigators' request to extend the scope of the original search warrant." Id. Among the items seized pursuant to the expanded warrant were "pieces of torn-up paper" that "appeared to comprise two checklists: 'note, glue ✓, mask ... ✓, ... bag ✓, gun ✓' and 'jacket ✓, sweats, scanners ✓, ... coveralls, cosmetic bag, jammer.'" Id. at *3. Also seized was a car rental agreement from a Lafayette agency "for the rental of a Mazda 2 for a period covering the April robbery. The small, black Mazda appeared similar to the small, black car recorded speeding away from the robbery scene by Walmart surveillance cameras." Id.
[¶6] On April 27, 2013, Judge Todd issued an arrest warrant for Funk on the basis of the fruits of the search disclosed at a probable cause hearing. Several days later, a cheek swab was taken from Funk; the resulting DNA profile matched his DNA profile in the CODIS database. In May 2013, the State charged Funk with one count of class B felony robbery with a deadly weapon for the April 5 bank robbery and one count of class B felony robbery with a deadly weapon for a January bank robbery. The State also alleged that Funk was a habitual offender.
[¶7] Judge Todd presided over the case, and Bruce Elliott was appointed as Funk's counsel. In May 2015, Elliott filed a motion seeking
the suppression of all evidence taken from Funk's cell phone and of all evidence found in the Lafayette house on the basis of staleness of the facts underlying the probable cause determination and because the officers treated the original warrant as a "general exploratory warrant," allowing them to rummage for any other items they wished to seize.Id. (transcript citation omitted). Judge Todd denied the motion.
[¶8] In June 2015, Elliott withdrew, and Funk retained counsel Gregory Spencer. In September 2015, Spencer filed a motion to suppress the DNA sample taken from Funk after his arrest and a motion to suppress the evidence seized from the Lafayette house.
As to the DNA sample, Funk argued that his detention from April 26, 2015, when he was arrested after leaving the Lafayette house, to April 27, 2015, when an arrest warrant issued, was unlawful, and that the DNA sample was therefore a fruit of the poisonous tree. As to the evidence seized from the Lafayette house, Funk argued that the lead investigator had knowingly or recklessly stated a falsehood when the investigator affirmed in his oral search warrant application that the piece of plastic recovered from the STAR bank had been dropped by the robber. The State responded, respectively, that the April 26, 2015, arrest of Funk was in a public place and supported by probable cause independent of the fruits of the search, and that the STAR
surveillance footage clearly showed the robber dropping the piece of plastic.Id. at *4. Judge Todd denied both motions.
[¶9] A four-day jury trial was held in November 2015. The jury found Funk guilty of the April robbery, acquitted him of the January robbery, and found him to be a habitual offender. Judge Todd sentenced Funk to twenty years for the robbery conviction and added a thirty-year habitual offender enhancement, for an aggregate term of fifty years.
[¶10] On direct appeal, Funk's counsel David Payne challenged the admissibility of certain evidence seized from the Lafayette house, argued that the evidence was insufficient to prove that Funk possessed a deadly weapon during the robbery, and asserted that the prosecutor committed fundamentally erroneous misconduct during closing argument. Another panel of this Court affirmed Funk's conviction, and our supreme court denied his petition to transfer.
[¶11] In July 2017, Funk filed a pro se PCR petition, which was amended in March 2022, raising several claims of ineffective assistance of both trial and appellate counsel. Per rule, a PCR petition must be filed "with the clerk of the court in which the conviction took place[.]" Ind. Post-Conviction Rule 1(2). The State did not file an answer to Funk's petition. In October 2019, Funk filed a motion for change of judge pursuant to Indiana Post-Conviction Rule 1(4)(b), which Judge Todd denied. Judge Todd also denied Funk's requests to subpoena Marion Police Department Detectives Jay Kay and Brian Sharp and Indiana State Police DNA analyst Stacy Bozinovski.
[¶12] At the June 2022 factfinding hearing, Funk called Elliott, Spencer, and Payne as witnesses, and he submitted the record of proceedings from his direct appeal. In March 2023, Judge Todd issued an order denying Funk's petition. Funk filed a motion to correct error, which was also denied. This appeal ensued. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 - Funk's claims of ineffective assistance of trial counsel are either waived or meritless.
[¶13] At the outset, we note that Funk has chosen to proceed pro se. "It is well settled that pro se litigants are held to the same legal standards as licensed attorneys." Lowrance v. State, 64 N.E.3d 935, 938 (Ind.Ct.App. 2016), trans. denied (2017). This means that they must follow our established rules of procedure and be prepared to accept the consequences when they fail to do so. Id. "We will not become a party's advocate, nor will we address arguments that are inappropriate, improperly expressed, or too poorly developed to be understood." Barrett v. State, 837 N.E.2d 1022, 1030 (Ind.Ct.App. 2005), trans. denied (2006). "Failure to put forth a cogent argument acts as a waiver of the issue on appeal." Id.
Among other deficiencies, Funk's brief lacks the statement of facts required by Indiana Appellate Rule 46(A)(6) and the summary of argument required by Appellate Rule 46(A)(7).
[¶14] Our standard of review in post-conviction proceedings is well settled. "Postconviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence." Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013).
Funk raises a "continuous Objection" to any argument made by the State in response to his brief, based on its failure to file a response to his PCR petition, and he quotes a case for the proposition that "appellate courts look with disfavor upon issues that are raised by a party for the first time on appeal[.]" Appellant's Br. at 6 (quoting State v. Peters, 921 N.E.2d 861, 867 (Ind.Ct.App. 2010)). The State has not raised any new issues in its brief; it has simply responded to the arguments raised in Funk's brief.
Post-conviction proceedings do not offer a super appeal, rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules. Those grounds are limited to issues that were not known at the time of the original trial or that were not available on direct appeal. Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata.. . .
Because the defendant is appealing from the denial of postconviction relief, he is appealing from a negative judgment and bears the burden of proof. Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. 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.Id. (citations and quotation marks omitted). "We will not reweigh the evidence or judge the credibility of witnesses, and will consider only the probative evidence and reasonable inferences flowing therefrom that support the postconviction court's decision." Hinesley v. State, 999 N.E.2d 975, 981 (Ind.Ct.App. 2013), trans. denied (2014). We accept the post-conviction court's factual findings unless they are clearly erroneous, but we accord no deference to its legal conclusions. Hardy v. State, 786 N.E.2d 783, 786 (Ind.Ct.App. 2003), trans. denied.
[¶15] Funk asserts that he is entitled to post-conviction relief because he was denied the right to effective assistance of trial counsel guaranteed by the Sixth Amendment to the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 686 (1984) ("[T]he right to counsel is the right to effective assistance of counsel.") (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To succeed on an ineffective assistance of counsel claim, the defendant must satisfy the two-part standard articulated in Strickland. Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017). This requires the defendant to show that "1) counsel's performance was deficient based on prevailing professional norms; and 2) that the deficient performance prejudiced the defense." Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018), cert. denied (2019).
[¶16] To establish deficient performance, the defendant must show that counsel's representation "fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the 'counsel' guaranteed by the Sixth Amendment." Humphrey, 73 N.E.3d at 682 (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). "Even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client." Wentz v. State, 766 N.E.2d 351, 361 (Ind. 2002). "Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance." Hinesley, 999 N.E.2d at 982. In reviewing counsel's performance, "[a] strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Morgan v. State, 755 N.E.2d 1070, 1073 (Ind. 2001). "[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption." Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002).
[¶17] "To demonstrate prejudice from counsel's deficient performance, a petitioner need only show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Baumholser v. State, 186 N.E.3d 684, 689 (Ind.Ct.App. 2022) (citation and quotation marks omitted), trans. denied. "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).
[¶18] As the post-conviction court's order suggests, most of Funk's arguments are based on a misunderstanding of the record and/or the law and lack both evidentiary support and cogency. His first argument focuses on the aforementioned "small, black piece of plastic" that he dropped on the floor on his way out of the bank, which was retrieved by Detective Sharp and was later found to contain Funk's DNA. Funk, 2016 WL 7493403, at *1. In his brief, Funk baldly asserts that "other people's DNA" was on the piece of plastic and that the manner in which the detective collected the piece "destroy[ed] or remov[ed]" that DNA. Appellant's Br. at 10. Funk contends that trial counsel was ineffective in failing to establish this, which would have "created reasonable doubt." Id. at 9. Funk's claim is based on pure conjecture and is therefore waived.
Waiver notwithstanding, we note that Funk's trial counsel cross-examined DNA analyst Bozinovski testified about the concept of "secondary transfer" at trial; she acknowledged that it is possible for a person to transfer DNA from one object to another and that she was "not sure" how Funk's DNA was transferred to the piece of plastic. Trial Tr. Vol. 3 at 631, 632.
[¶19] Next, Funk argues that he was denied his Sixth Amendment right to confront Indiana State Police forensic scientist Linda Wiegman, who had prepared a certificate of analysis stating that the DNA profile found on the piece of plastic was consistent with Funk's DNA profile stored in the CODIS database. Funk further argues that trial counsel was ineffective in failing to call Wiegman as a witness at a pretrial hearing or at trial. We first observe that "[t]he right to confrontation is a trial right-not a pretrial right." Church v. State, 189 N.E.3d 580, 593 (Ind. 2022). We also observe that Funk has failed to establish that counsel's failure to call Wiegman as a witness at trial constituted deficient performance and that, but for this unprofessional error, there is a reasonable probability that the result of the trial would have been different.
Funk's preoccupation with Wiegman derives from her statement in the certificate of analysis that "fingerprint confirmation of the offender's identity was not possible in this case." Ex. Vol. 3 at 147. Funk asserts that this meant that "[t]here was something wrong with the CODIS hit." Appellant's Br. at 31. We agree with the State that "[a]ll this meant was that fingerprints were not available to confirm [Funk's] identity at that time[.]" Appellee's Br. at 22 n.3.
[¶20] Funk also contends that trial counsel was ineffective in failing to challenge his warrantless arrest and the collection of his DNA sample under Article 1, Section 11 of the Indiana Constitution. But Funk offers no pertinent legal analysis to support these claims, so they are waived.
Under Article 1, Section 11, the reasonableness of a search or seizure turns "on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and 3) the extent of law enforcement needs." Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). Funk fails to address any of these factors. He also fails to acknowledge that an officer may arrest a suspect without a warrant "if the officer has probable cause to believe that the suspect has committed a felony." Thomas v. State, 81 N.E.3d 621, 625 (Ind. 2017). Moreover, he has failed to establish that his warrantless arrest was not supported by probable cause.
[¶21] Finally, Funk asserts that trial counsel was ineffective in failing to assert as a defense that when Detective Kay applied for the aforementioned arrest warrant, he failed to inform Judge Todd that Funk had already been arrested. The postconviction court found, and we agree, that this fact "would have been meaningless to any judicial officer making the probable cause determination." Appealed Order at 12. Accordingly, we find this claim meritless as well.
Indiana Code Section 35-33-7-2 provides,
(a) At or before the initial hearing of a person arrested without a warrant for a crime, the facts upon which the arrest was made shall be submitted to the judicial officer, ex parte, in a probable cause affidavit. In lieu of the affidavit or in addition to it, the facts may be submitted orally under oath to the judicial officer. If facts upon which the arrest was made are submitted orally, the proceeding shall be recorded by a court reporter, and, upon request of any party in the case or upon order of the court, the record of the proceeding shall be transcribed.
(b) If the judicial officer determines that there is probable cause to believe that any crime was committed and that the arrested person committed it, the judicial officer shall order that the arrested person be held to answer in the proper court. If the facts submitted do not establish probable cause or if the prosecuting attorney informs the judicial officer on the record that no charge will be filed against the arrested person, the judicial officer shall order that the arrested person be released immediately.Funk suggests that this statute was violated because Judge Todd was never called upon to determine whether his warrantless arrest was supported by probable cause. But Funk makes no cogent argument that the statute applies where, as here, a suspect initially arrested without a warrant is further detained pursuant to a warrant before his initial hearing. Nor does he make a cogent argument regarding the available remedies for a violation of the statute, whether trial counsel performed deficiently in failing to pursue those remedies, or whether he was prejudiced by such deficient performance.
Section 2 - Funk has waived his claims of ineffective assistance of appellate counsel.
[¶22] "We apply the same standard of review to claims of ineffective assistance of appellate counsel as we apply to claims of ineffective assistance of trial counsel." Montgomery v. State, 21 N.E.3d 846, 854 (Ind.Ct.App. 2014), trans. denied (2015). "A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms." Id. "To meet the appropriate test for prejudice, the petitioner 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.
[¶23] Funk asserts that his appellate counsel was ineffective in failing to raise the foregoing issues that trial counsel also failed to raise. To prove deficient performance on this ground, Funk "needed to show that the unraised claims were 'significant and obvious upon the face of the record' and were clearly stronger than those presented." Isom v. State, 170 N.E.3d 623, 650 (Ind. 2021) (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997)). We agree with the State that Funk made no such showing and therefore has waived his claims of ineffective assistance of appellate counsel.
The State correctly observes that counsel would have had to raise the forfeited claims as fundamental error, and we note that "the bar establishing fundamental error is higher than that for prejudice of ineffective assistance of trial counsel." Benefield v. State, 945 N.E.2d 791, 805 (Ind.Ct.App. 2011).
Section 3 - The post-conviction court did not clearly err in denying Funk's motion for change of judge.
[¶24] Funk also appeals the denial of his motion for change of judge. Indiana PostConviction Rule 1(4)(b) provides in pertinent part,
Within ten [10] days of filing a petition for post-conviction relief under this rule, the petitioner may request a change of judge by filing an affidavit that the judge has a personal bias or prejudice against the petitioner. The petitioner's affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate from the attorney of record that the attorney in good faith believes that the historical facts recited in the affidavit are true. A change of judge
shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice. For good cause shown, the petitioner may be permitted to file the affidavit after the ten [10] day period.
Our supreme court has held that a petitioner "is not entitled to a change of judge simply because the post-conviction judge presided over the original trial and sentencing." Lambert v. State, 743 N.E.2d 719, 730 (Ind. 2001), cert. denied (2002). We review a ruling on a motion for change of judge under the clearly erroneous standard. Robinson v. State, 218 N.E.3d 17, 30 (Ind.Ct.App. 2023). "Reversal will require a showing which leaves us with a definite and firm conviction that a mistake has been made." Id.
[¶25] Funk has made no such showing here. He filed his motion for change of judge more than two years after he filed his PCR petition, and he did not file a supporting affidavit. The motion states, "[Funk] is attacking the search warrant and the arrest warrant's probable cause and he will request an evidentiary hearing and will be calling Judge Todd to testify. Judge Todd was the judge that presided over all three probable cause hearing [sic]." Appellant's App. Vol. 2 at 233. In his order denying Funk's motion, Judge Todd correctly observed that "[a] request for a change of judge must contain facts and reasons for belief that the trial court judge has a personal bias or prejudice against the Petitioner. The Petitioner cites no such facts or reasons in his request." Id. at 236. Judge Todd further observed that post-conviction relief "is a collateral attack on the validity of a criminal conviction" and "is not a super-appeal" and that "the trial court judge may not be called as a witness to testify at a post-conviction relief hearing." Id. at 236-37. Funk cites no authority to the contrary. Based on the foregoing, we affirm the post-conviction court's ruling.
The State points out that the copy of Funk's "motion for change of judge in his Appendix is the same as that filed in the post-conviction court, which consists of pages 1 and 3. There does not appear to be a page 2." Appellee's Br. at 36 n.9.
Section 4 - Funk has failed to establish that the postconviction court abused its discretion in denying his subpoena requests.
[¶26] Finally, we address Funk's contention that the post-conviction court erred in denying his requests to subpoena Detectives Kay and Sharp. Indiana PostConviction Rule 1(9)(b) states in pertinent part,
If [a] pro se petitioner requests issuance of subpoenas for witnesses at an evidentiary hearing, the petitioner shall specifically state by affidavit the reason the witness' testimony is required and the substance of the witness' expected testimony. If the court finds the witness' testimony would be relevant and probative, the court shall order that the subpoena be issued. If the court finds the proposed witness' testimony is not relevant and probative, it shall enter a finding on the record and refuse to issue the subpoena.
"The decision to grant or deny a request for issuance of a subpoena is within the [post-conviction] court's discretion." Collins v. State, 14 N.E.3d 80, 84 (Ind.Ct.App. 2014). "An abuse of discretion occurs where the decision is against the logic and effect of the facts and circumstances." Id.
[¶27] The State observes that Funk failed to include his subpoena requests "and the post-conviction court's factual orders denying those requests in his appendix on appeal[.]" Appellee's Br. at 41. But the court did summarize Funk's requests and its reasons for denying them in its final order:
Former MPD Captain Jay Kay. Funk contends that his trial counsel failed to thoroughly examine Kay at pre-trial suppression hearings. Funk believes his counsel should have asked the following questions:
1. "What was the probable cause for Funk's warrantless arrest?"
2. "Why didn't you tell the court that (Funk) was in custody at the time you sought a warrant for his arrest?"
3. "Why did it take five days to collect Funk's DNA?"
4. "What do you believe is meant when a court order instructs law enforcement to conduct a "diligent" search?"
5. "Why did you not request an arrest warrant at the same time you requested the search warrant for Funk's home?" and
6. "How many warrantless arrests have you made in your career?"
Kay's testimony on these issues is neither relevant nor probative. As discussed earlier, Kay testified at suppression hearings and at trial as to existing facts establishing probable cause for Funk's warrantless arrest, and the fact that Funk was detained at the time Kay sought a warrant for his arrest is completely irrelevant. A defendant's detention is simply not evidence of a crime, and Kay had no obligation or reason to report that fact to the Court.
Why a search warrant may or may not have been executed for
five days is not relevant to a post-conviction relief proceeding[]. Neither is Kay's opinion of what constitutes a diligent search. Finally, why Kay did not request an arrest warrant at the same time he sought his search warrant is irrelevant to Funk's postconviction proceeding. As discussed previously, probable cause existed to conduct a warrantless arrest prior to seeking an arrest warrant from a judicial officer. Kay was thoroughly crossexamined by Funk's counsel on these issues at two suppression hearings and at trial, and the testimony Funk sought would not assist the court in determining whether his counsel was ineffective.
Former MPD Detective Brian Sharp. Funk sought to question Sharp further about his involvement in the investigation of Funk's crimes. He wanted to probe more deeply into how Sharp went about collecting the piece of plastic at the STAR Bank robbery and what, if any, discussions Sharp had with Kay immediately preceding Kay's application for the warrant to search Funk's residence in Lafayette. At trial, Sharp described in detail on direct and cross-examination how he went about collecting the plastic piece at the scene of the robbery. No questions were asked about an "unspecified discussion" with . . . Kay while Sharp was in Lafayette because the answers would have been irrelevant. Funk does not claim in his affidavit seeking to subpoena Sharp that Sharp would provide newly discovered evidence unearthed by Funk post-trial. The manner in which Sharp collected the piece of plastic was clearly described for the jury and the picture of the piece of plastic being held by Sharp which was entered into evidence at trial speaks for itself. No rational reason existed to call Sharp to testify at Funk's postconviction relief proceeding.Appealed Order at 15-17.
[¶28] Funk's meandering argument, which is clouded by his misunderstanding of the record and the law, fails to establish that the post-conviction court's ruling is an abuse of discretion. Therefore, we affirm.
[¶29] Affirmed.
Bailey, J., and Pyle, J., concur.