GREGORY SCOTT JOHNSON
    Appellant (Defendant below),

    v.

STATE OF INDIANA,
    Appellee (Plaintiff below).

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)    Supreme Court No.
)    48S00-9305-PD-00498
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SULLIVAN, Justice.

    We affirm the denial of Gregory Scott Johnson's petition for post-conviction relief.

    Petitioner Gregory Scott Johnson appeals the denial of post-conviction relief with respect to his convictions for Murder,See footnote 1 Arson,See footnote 2 and sentence of death.See footnote 3 We unanimously affirmed Johnson's direct appeal of these convictions and sentence in an opinion authored by Justice DeBruler. Johnson v. State, 584 N.E.2d 1092 (Ind. 1992).

    The Murder conviction was on a charge that Johnson had killed an elderly woman by striking her with a blunt instrument and kicking and hitting her during the commission of a burglary of her home. The Arson conviction was on a charge that Johnson had knowingly damaged the victim's home by means of a fire. The death sentence was supported by the aggravating circumstance that the killing had been done intentionally while committing the crimes of Burglary and Arson.See footnote 4

    Prior to trial, Johnson sought to compel discovery of all written reports by police officers and firefighters concerning their investigations of the crimes at issue. The trial court denied Johnson's request. We affirmed the propriety of this ruling on direct appeal. Id. at 1103. Following trial, the trial court ordered the reports of nineteen officers sealed and transmitted to us for review. Appellate counsel also had access to the reports. We concluded that there was no reasonable probability that the material withheld by the prose cutor was such that the proceedings at the guilt stage, the jury recommendation stage, or the judge sentencing stage would have been resolved differently. Id. at 1104.

    Our earlier opinion contains additional details about the crimes of which and the proceedings in which Johnson was convicted.

    At the trial on his petition for post-conviction relief, Johnson had the burden of establishing his grounds for relief. Ind.Post-Conviction Rule 1(5). Therefore, he is now appealing from a negative judgment. When an appeal is from a negative judgment, we must be convinced that the evidence as a whole was such that it leads unerringly and unmistak ably to a decision opposite that reached by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995); Williams v. State, 508 N.E.2d 1264, 1265 (Ind. 1987); Lowe v. State, 455 N.E.2d 1126, 1128 (Ind. 1983). It is only where the evidence is without

conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law. Spranger, 650 N.E.2d at 1120 (quoting Fleenor v. State, 622 N.E.2d 140, 142 (Ind. 1993), cert. denied 115 S.Ct. 507 (1994)).

    Johnson contends that he is entitled to post-conviction relief because the prosecutor committed misconduct by withholding material exculpatory evidence.

    As discussed briefly supra, the trial court denied Johnson's request for the production of all police and fire department reports. Subsequent to the trial, the trial court ordered the reports of nineteen officers to be sealed and sent to us for review in Johnson's direct appeal. Johnson, 584 N.E.2d at 1104. Johnson's current claim is that information relating to four matters was not forwarded to us on direct appeal and that because the information which was withheld contained material exculpatory evidence, post-conviction relief is warranted.

    The prosecution has an affirmative duty to disclose evidence favorable to the defen dant. Kyles v. Whitley, 514 U.S. 419, 432 (1995) (citing Brady v. Maryland, 373 U.S. 83 (1963)). In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. The Supreme Court later determined that the failure to request favorable evidence did not relieve the State of its obligation to disclose evidence favorable to the defendant. United States v. Agurs, 427 U.S. 97, 107 (1976). More recently, in United States v. Bagley, the Court applied a materiality standard for favorable evidence and held that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." 473 U.S. 667, 682 (1985).

    An allegation of a Brady violation requires a demonstration that the undisclosed favorable evidence "could be reasonably taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435.See footnote 5 A new trial is war

ranted if there is a reasonable probability that disclosure of the evidence would have produced a different result. Id. at 419. We do not find there to have been a Brady violation.

    Before addressing why Johnson has not carried his burden of proving the challenged information to be exculpatory, we make some general observations. The thrust of Johnson's

claim is that the undisclosed information indicates that Decker was a suspect in the crime and that this fact alone is exculpatory. It is important to understand that Johnson does not maintain that he was not involved in the crimes at issue. Johnson only contends that Decker accompanied him in the commission of the crimes.See footnote 6 Johnson cannot make out a Brady violation on this basis alone.

    "[R]egardless of whether the evidence was material or even exculpatory, when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady violation." United States v. White, 970 F.2d 328, 337 (7th Cir. 1992) (quoting United States v. Brown, 628 F.2d 471, 473 (5th Cir. 1980)). The informa tion which Johnson claims to be exculpatory _ Decker's involvement in the crimes _ was information (if true) that Johnson had available to him at the time of trial. If Decker was in fact present during the commission of the crimes, Johnson was aware of this fact and did not need the State to advise of him of its suspicions regarding Decker's participation. Cf. White, 970 F.2d at 337 ("'While the Supreme Court in Brady held that the [g]overnment

may not properly conceal exculpatory evidence from a defendant, it does not place any burden upon the [g]overnment to conduct a defendant's investigation or assist in the presen tation of the defendant's case.' United States v. Marrero, 904 F.2d 251, 261 (5th Cir. 1990).").

    In addressing the specific information which Johnson challenges, we review the post- conviction court's findings that the additional information discovered by Johnson not submitted to us for review on direct appeal does not constitute exculpatory evidence.

    Johnson's first claim is that the State should have disclosed the existence of an order for the taking of Decker's pubic hairs. Johnson argues that the State, in obtaining the order, must have established with probable cause that Decker was a suspect and that this fact is "unquestionably exculpatory to Johnson."See footnote 7 Br. of Appellant at 25. As stated supra, the mere fact that the police suspect (or have probable cause to suspect) the involvement of

another in addition to the defendant is not exculpatory where the defendant acknowledges the defendant's own participation in the crime.

    Johnson next contends that the prosecutor engaged in misconduct by failing to inform Johnson of the results of a laboratory analysis comparing a hair found on the gloves, which were suspected of being used in the crimes, to Decker's pubic hair. The laboratory report revealed that the hair found on the gloves was "microscopically dissimilar" to Decker's pubic hair and that the hair could not have originated from Decker. On this basis, the post- conviction court found that the results of the test were not exculpatory.See footnote 8 Our review of the record does not lead us to an opposite conclusion. See Averhart v. State, 614 N.E.2d 924, 928 (Ind. 1993) (where we stated that inconclusive tests cannot be said to be exculpatory).
    Finally, Johnson contends that it was misconduct not to inform him that identifiable latent prints found at the victim's home did not match the prints of either Johnson or the victim. Johnson's argument seems to be that the fact that these prints were compared (inconclusively) to Decker's finger prints proves that Decker was a suspect. As we stated supra, proof that Decker may have been a suspect is not exculpatory evidence.

    Johnson contends that it was misconduct for the prosecutor to fail to disclose police reports containing statements made by one Cathy Mundy. Mundy was Decker's ex-girl friend and provided several statements to the police prior to trial pertaining to Decker's and Johnson's whereabouts around the time of the crimes. Mundy testified during the post- conviction hearing. There were some inconsistencies between the pre-trial police reports containing her statements and her testimony during the post-conviction hearing. The post- conviction court found that the pre-trial police reports that Johnson contends should have been disclosed indicated a possibility that Decker's alibi was slightly less firm than would have been inferred from the information available to Johnson at trial. However, the post- conviction court found that the information would not have changed the theory of defense since Johnson never told his attorney that anyone else was present. Our review of the record indicates that the evidence supports this finding.

    The post-conviction court also concluded that this information was not exculpatory. Our review of the record and the post-conviction court's findings do not lead us to an opposite result. Johnson argues that two police reports should have been disclosed _ one filed by Detective Brown and the other by Officer Reed. Brown's report was submitted to us for review on direct appeal wherein we determined that none of the police reports

contained exculpatory evidence.See footnote 9 Consequently, Johnson's challenge to Brown's report is not available for re-litigation here. See Baird v. State, 688 N.E.2d 911, 914 (Ind. 1997); Harris v. State, 643 N.E.2d 309, 310 (Ind. 1994); Lowery v. State, 640 N.E.2d 1031, 1045 (Ind. 1994); Smith v. State, 613 N.E.2d 412, 413 (Ind. 1993); Grey v. State, 553 N.E.2d 1196, 1199-1200 (Ind. 1990). As to Reed's report, Johnson does not cite to the record to advise us where this report is located nor does Johnson state specifically what is contained in this report which is favorable to Johnson. The only report filed by Reed that we have been able to locate in the record is Mundy's pre-trial signed statement which Johnson concedes he received at trial.See footnote 10 Br. of Appellant at 27. Johnson contends that because the

Brown report was never disclosed to him at trial,See footnote 11 he was not able to discover the differ ences between Brown's report and Mundy's signed statement to Reed.See footnote 12 While this is true, it is also clear that the signed statement Johnson did possess (the Reed report) was more favorable to Johnson than the Brown report. As such, to the extent the Mundy materials are "exculpatory" at all, the material Johnson had available prior to trial (the Reed report) on precisely the same issue was inconsistent with, and was more exculpatory than that which was withheld (the Brown report).

    During the post-conviction hearing, Mundy testified that she remembered telling the police about waking up on the morning of the incident and finding Decker fully dressed and with a black flashlight laying beside the bed. However, the police reports do not reflect

these statements.See footnote 13 Mundy also testified that she did not know what happened to that flashlight. (Decker's alleged possession of a black flashlight is at least arguably significant because the evidence indicates that the victim owned two black flashlights, but only one was found in the house after the crimes.) On cross-examination during the post-conviction hearing, the prosecutor elicited testimony illustrating that several statements made by Mundy were inconsistent with statements she had previously made to the police.See footnote 14 Further

more, the prosecutor elicited testimony indicating that Mundy's statements about Decker's involvement in the crime occurred only after the relationship between the two of them ended. We find nothing here that points us in the opposite direction from the post-convic tion court's conclusion that the State did not withhold exculpatory information. At issue here was a credibility contest between, on the one hand, Mundy's testimony at the post- conviction hearing and, on the other hand, the accuracy of the Brown report and Reed's record of Mundy's pre-trial statement. As set forth supra, particularly in notes 13 and 14, there was evidence from which the post-conviction court could conclude that Mundy's post- conviction testimony in this regard was not credible.

    Johnson contends that the prosecutor committed misconduct by not disclosing certain letters received by the police which were allegedly written by Johnson and sent to one Kim Harris Rohrbacher.See footnote 15 Rohrbacher was a high school friend of Johnson's. Johnson claims that while the contents of the letters were and are unknown, they should have been disclosed because they were relevant for mitigation purposes (apparently because they would show

Johnson in a humane light).See footnote 16 We find this claim too attenuated to support post-conviction relief. Logic does not support simultaneous contentions that Johnson wrote such letters but he did not know they existed; or that they contained mitigating evidence but he did not know their contents. Even after the post-conviction hearings, Johnson is not able to point us to anything exculpatory about such letters.

    Johnson contends that it was improper for the prosecutor not to disclose evidence concerning police dog tracking following the crimes. This claim was reviewed and rejected on direct appeal, Johnson, 584 N.E.2d at 1104, and is not available for re-litigation here. See Baird, 688 N.E.2d at 914; Harris, 643 N.E.2d at 310; Lowery, 640 N.E.2d at 1045; Smith, 613 N.E.2d at 413; Grey, 553 N.E.2d at 1199-1200.

    Johnson presented the post-conviction court with a list of alleged errors committed by his lawyer on direct appeal the effect of which he claims deprived him of his constitu

tional right to the effective assistance of counsel. U.S. Const. amend VI; Ind. Const. art. I, § 13. This constitutional right, which requires the effective assistance of both trial and appellate counsel, has been firmly recognized by the United States Supreme Court and this Court. United States v. Cronic, 466 U.S. 648, 654 (1984); King v. State, 467 N.E.2d 726, 728-29 (Ind. 1984). The post-conviction court concluded that Johnson was not denied the effective assistance of appellate counsel to which he was entitled.

    A sentence of death may not be imposed unless the sentencer finds that the properly charged and proven statutory aggravating circumstances with respect to the murder outweigh any mitigating circumstances with respect to the offender and the crime. Ind. Code § 35-50- 2-9(e). As such, defense counsel in a capital case has a particular duty to investigate possible mitigating circumstances and present evidence of mitigation to the jury. Burris v. State, 558 N.E.2d 1067, 1074 (Ind. 1990). Johnson claims trial counsel failed to investigate adequately mitigation evidence and failed to present such evidence to the jury.See footnote 17

     We analyze claims of ineffective assistance of appellate counsel similar to claims of ineffective assistance of trial counsel. Claims of ineffective assistance of counsel are analyzed according to the two-part test established in Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., Lowery, 640 N.E.2d at 1041. First, we require the defendant or petitioner to show that, "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id. This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Id. (citing Turner v. State, 580 N.E.2d 665, 668 (Ind. 1991)). Second, we require the defendant or petitioner to show adverse prejudice as a result of the deficient performance. This showing is made by demonstrating that counsel's performance was so prejudicial that it deprived the defendant or petitioner of a fair trial. Games v. State, No. 49S00-9002-PD-114, 1997 WL 795861, at *1 (Ind. Dec. 23, 1997); Lowery, 640 N.E.2d at 1041. We will conclude that a fair trial has been denied when the conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unreliable. Lowery, 640 N.E.2d at 1041 (citing Best v. State, 566 N.E.2d 1027 (Ind. 1991)). See also Sanchez v. State, 675 N.E.2d 306, 310 (Ind. 1996). Because Johnson is claiming that appellate counsel was ineffective for failing to claim on direct appeal the ineffective

assistance of trial counsel with respect to certain issues, Johnson must establish both deficient performance and resulting prejudice on the part of both trial and appellate counsel. The failure to establish either prong with respect to either trial or appellate counsel will cause the entire claim to fail. Roche v. State, No. 45S00-9305-PD-588, 1997 WL 796189, at *3 (Ind. Dec. 31, 1997).

    Johnson alleges that the jury and trial court were not presented mitigating evidence regarding parental neglect, abnormal childhood behavior or serious psychological trauma preceding the incident.See footnote 18 The post-conviction court found that "[t]here exists no other

substantial evidence of mitigation which could have been presented in this case to obtain a different result." (R. at 203-04.) Based upon our review of the record (see note 18), we conclude there was evidence to support the findings of the post-conviction court and so do not find counsel's performance to be deficient. On direct appeal, our review of the record indicated that ten (10) witnesses had testified on behalf of Johnson during the penalty phase of the trial.See footnote 19 Johnson, 584 N.E.2d at 1108. Through these witnesses, counsel presented as a reasonable basis for imposing a sentence other than death (both to the jury during the penalty phase and to the court at sentencing) aspects of Johnson's background, character and

record and the circumstances of these crimes. See Williams v. State, 669 N.E.2d 1372, 1384 (Ind. 1996), cert. denied, 117 S.Ct. 1828 (1997). While more mitigation evidence (but not much more _ see note 18) was uncovered at the post-conviction hearing, counsel's perfor mance at trial cannot be deemed deficient.

    Johnson contends that he was denied the effective assistance of appellate counsel because of counsel's failure to raise on direct appeal trial counsel's ineffectiveness due to systemic errors in the operation of the Madison County public defender's office. The sole basis for Johnson's claim appears to be that because both trial counsel were under-compen sated (i.e., not compensated until trial had already begun), trial counsel were prevented from rendering effective assistance. The evidence which Johnson presents to support this claim is the testimony of one of his attorneys during the post-conviction hearing. The attorney stated that they were underpaid and that if they had been adequately compensated they "could have spent more time looking for additional items or issues to raise which were not apparent from the surface . . . ." (R. at 551.)

    While this court has recognized the importance of adequate compensation for counsel and investigation support in capital cases, see Ind.Crim.Rule 24(C) (as amended effective Feb. 1, 1993), the fact that attorneys believe they could have done more had they been more

highly compensated does not compel a conclusion that their performance was deficient. Irrespective of whether there were problems with the public defender system, in order to claim ineffective assistance of counsel, Johnson must show that his trial counsel provided deficient performance and that it was prejudicial. See Platt v. State, 664 N.E.2d 357, 362-63 (Ind. Ct. App. 1996) (where defendant unsuccessfully argued that public defender lacked sufficient funds to permit performance of adequate pretrial investigation and preparation by appointed counsel), trans. denied, cert. denied 117 S.Ct. 1470 (1997). See also Sublett v. State, 665 N.E.2d 621, 623 (Ind. Ct. App. 1996) ("there is no constitutional violation unless the defendant can prove he was prejudiced at trial by the deficient performance"), trans. denied. Johnson has shown neither deficient performance nor prejudice. See e.g., Games v. State, 684 N.E.2d 466, 481 (Ind. 1997) ("the defendant does not assert and establish that individualized errors due to systemic problems undermined the reliability of his convic tions"), modified on reh'g, 1997 WL 795861 (Ind. Dec. 23, 1997). Johnson makes no such showing here.

    William Lawler served as Madison County prosecutor at the time of Johnson's trial. Johnson apparently filed a motion to disqualify Lawler from participation in the post-

conviction proceeding.See footnote 20 Apparently between the time of the filing of the motion and the start of the post-conviction hearing, Lawler ran for re-election and was defeated. At this point, the post-conviction court apparently dismissed the motion as moot. During the post- conviction hearing, Johnson renewed the motion, seeking disqualification of the entire Madison County prosecutor's office.See footnote 21 The trial court again found the issue moot, conclud ing that any conflict Lawler might have had could not be attributed to the successor prosecu tor or his office. This decision was correct.

    Johnson relies on State ex rel. Goldsmith v. Superior Court of Hancock County, 386 N.E.2d 942 (Ind. 1979), where we held that "if the elected prosecutor himself becomes a witness in a case or otherwise is disqualified by reason of having an interest in the outcome, his entire staff of deputies must be recused in order to maintain the integrity of the process of criminal justice." Id. at 945. However, the principal holding in State ex rel. Goldsmith was that the disqualification of an individual deputy prosecutor did not mandate the disqual ification of the prosecutor or the rest of the prosecutor's office (or, in that case, a successor prosecutor and the successor prosecutor's office). State ex rel. Goldsmith cannot be fairly read to hold that the facts which would disqualify a prosecutor from participating in a

particular case disqualify a successor prosecutor as well.See footnote 22

    Johnson claims that he is entitled to post-conviction relief because of erroneous findings of facts by the post-conviction court. We reject this contention. First, while Johnson lists a number of findings of fact which he contends are erroneous,See footnote 23 he does not

cite anything of record to demonstrate that they are wrong. Failure to supply this court with citation to authority and citation to the relevant portions of the record generally constitute a waiver of the alleged error. Ind.Appellate Rule 8.3(A)(7). See Flinn v. State, 563 N.E.2d 536, 543 (Ind. 1990); Callahan v. State, 527 N.E.2d 1133, 1141 (Ind. 1988); St. John v. State, 523 N.E.2d 1353, 1355 (Ind. 1988); Howard v. State, 481 N.E.2d 1315, 1318 (Ind. 1985). Second, and more to the point, Johnson has only advised us that particular findings were erroneous, but does not provide us with argument or analysis as to how he has been prejudiced by these findings, i.e., how the findings he asserts are correct would have entitled him to post-conviction relief.

    We deny Gregory Scott Johnson's petition for post-conviction relief.
    
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.          

The facts of this case are significantly different than Kyles. In Kyles, the defendant denied participat ing in the shooting and the evidence withheld had a reasonable tendency to support the defense. Unlike Kyles, Johnson does not argue that the undisclosed evidence in this case indicates that he was not involved, but rather that he had an accomplice.

Detective Brown also made the following statements in the report: Mundy appeared to be relaxed and calm and "I have nothing at this time to prove she is lieing [sic] and I have no gut feeling that she is. However, I believe that if there is a break up between the two, she would come forward." (R. at 2880-81.)

he was, but I assume he was with Scott Johnson since that's who he usually was with. We went to bed together that night and [Decker] was wearing a pair of blue jean shorts at the time. When I woke up the next morning I found [Decker] in bed beside me with all his clothes on including his shoes. This was the morning that the old lady had been killed. Later that day after Scott Johnson had been arrested, [Decker] had gone to the store and bought a twelve pack of beer and a few grocerys. [sic] I found that suspicious because [Decker] never worked and rarely had any money. After that day [Decker] kept coming up with more and more money and I kept getting more suspicious until finally after few day I went to him and asked if he had gotten the money from the old lady that had been killed. When I asked him this, [Decker] just looked at me and smile, but did not answer me. . . . On the day before the murder my mother had watched my little girl for me. The next morning she had brought my daughter home and when she got there she had found our apartment door standing wide open then looked inside and seen [Decker] laying in bed with me fully clothed. [sic] (R. at 351.)

Q:    Did you tell [Detective] Brown that there wasn't any question in your mind that [Decker]     was not involved in the murder and that he was with you almost the entire weekend?
A:    I don't remember telling him the whole entire weekend, but I might have said that.
Q:    There wasn't any doubt in your mind that he wasn't involved in the murder? Did you tell     me that?
A:    I might have said that. I'm not really sure.
Q:    You also told [Detective] Brown that when [Decker] slept, he slept with his arms around     you, and that he would have woken you up had he gotten up at night?
A:    Well, I've never took them kind of pills before, so I don't know if I would have.
Q:     You didn't say that to [Detective] Brown on June 27th, though, did you?
A:    I don't remember.
(R. at 357-59.)

assistance of counsel is an attempt to circumvent post-conviction rules in order to present issues which have been waived). As to the claim of appellate counsel being ineffective for raising the issue of ineffective assistance of counsel on direct appeal, the post-conviction court found any possible error to be harmless since the issue of ineffective assistance of trial counsel was fully litigated in the post-conviction hearing. We agree with the post-conviction court's findings.

learned about Johnson's epilepsy only after he was incarcerated.

Post-Conviction Court's Finding of Fact	Johnson's Contention
Victim was born in 1900.	Victim was born in 1902.
Frank Newman is Johnson's step-father.	Newman is Johnson's biological father.
Johnson's testimony was not instrumental in Mark Allen Wisehart's death sentence recommendation.	Such testimony was instrumental.
After Wisehart was released from juvenile deten tion, he murdered an elderly woman. There is no evidence that Johnson feels anything for Wisehart's victim.	These findings were irrelevant to this case.
Johnson stepped on the victim several times.	Johnson stepped on the victim only once.
The victim was "bludgeoned to death."	The victim's death resulted from blunt force trauma.
Johnson returned to the victim's house to watch the fire.	Johnson was found down the street from the fire standing with another person.
The figures used to calculate Johnson's blood alco hol level were based upon Johnson's statement.	Johnson's alcohol consumption was well- documented by several persons.
Additional information not available to defense counsel at trial "would not have changed the theory of defense in that Johnson never told his attorneys that anyone else was present.	The theory of defense would have been dramatically altered by evidence which established participation by others in the crime.
No witnesses ever placed Paul Decker in the victim's home at the time of the crimes.	Cathy Mundy provided information that Decker was at the victim's home at the time of the crimes.

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