Jackson v. State

• Citation: 683 N.E.2d 560
• Decision Date: 22 July 1997
• Docket Number: No. 27S00-9606-CR-468,27S00-9606-CR-468
• Parties: Charles L. JACKSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 560

683 N.E.2d 560

Charles L. JACKSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 27S00-9606-CR-468.

Supreme Court of Indiana.

July 22, 1997.

David Glickfield, Jr., Marion, for Appellant.

Pamela Carter, Attorney General, Michael K. Ausbrook, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

Defendant Charles L. Jackson was convicted of attempted rape, ¹ a Class A felony, criminal confinement, ² a Class D felony, and being a habitual offender. The trial court imposed concurrent sentences of fifty years on the first count and three years on the second count. The attempted rape sentence was enhanced by thirty years for the habitual offender conviction, for a total term of eighty years imprisonment. In this direct appeal, Jackson presents two issues for our review:

I. Was Jackson denied the effective assistance of trial counsel?

II. Was there sufficient evidence to support elevating the attempted rape conviction to a Class A felony?

We affirm.

Factual and Procedural Background

On the night of July 21, 1995, the victim, a sixteen-year-old girl, was walking home in Marion, Indiana when she was grabbed from behind by a man she later identified as the defendant. Jackson placed one arm around her neck and held what the victim believed to be a knife against her side with his other hand. ³ The defendant told the victim not to scream, that he had "just got out of jail" for killing someone, and that he "didn't mind going back." Jackson then told the victim she was a "beautiful black woman" and that he did not want to kill her. Jackson forced the victim to walk with him into an alley and then to lie down in some grass where he searched her for money. Jackson found change in the pockets of the victim's shorts and said he was going kill her for earlier denying that she had any money. The defendant told the victim that because she did not have any money he wanted to "make love" to her. She rejected this advance and he then told her to pull down her pants. The victim complied but stated that she was menstruating. Upon hearing this, Jackson renewed his threat to kill her for "lying" to him. The victim told Jackson he could see for himself. The defendant reached into the victim's pants, felt her sanitary napkin, and told her to pull up her pants. Jackson then stated he was going to kill her because she had seen his face. After the victim convinced Jackson that she could not identify him, Jackson said he would not kill her and left the scene. At approximately the same time these events took place, a witness saw Jackson running from and looking back towards the alley in which the assault occurred.

A jury convicted Jackson and he appeals. This Court has jurisdiction under Indiana Appellate Rule 4(A)(7).

I. Effective Assistance of Trial Counsel

Jackson argues that his trial counsel was constitutionally ineffective. A defendant must show two things to establish a violation of the Sixth Amendment right to the effective assistance of counsel: (1) counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In assessing counsel's handling of the case under the first prong of Strickland, we presume that reasonable professional judgment was exercised in making important decisions; accordingly, we scrutinize the management of the case with great deference. Counsel's conduct is assessed based on facts known at the time and not through hindsight. And rather than focusing on isolated instances of poor tactics or strategy in the handling of a case, the effectiveness of representation is determined based on the whole course of attorney conduct. See, e.g., Butler v. State, 658 N.E.2d 72, 78-79 (Ind.1995); Spranger v. State, 650 N.E.2d 1117, 1121 (Ind.1995), reh'g denied. The second part of the Strickland test--the "prejudice" prong--requires a showing of "a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69. More recently, the U.S. Supreme Court held that prejudice sufficient to set aside the conviction is not established unless the error rendered the result of the proceeding fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). With these standards in mind, we assess Jackson's challenge to his trial representation.

A. Failure to object to references to past incarceration

Each of Jackson's claims of ineffective assistance is based on a failure to object at trial. Accordingly, the defendant must show that a proper objection, if made, would have been sustained. Lowery v. State, 640 N.E.2d 1031, 1042 (Ind.1994), cert. denied, 516 U.S. ----, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995).

During opening and closing arguments, the prosecutor referred to Jackson's statement to the victim that Jackson had been in jail for killing someone and did not mind going back. Jackson contends this argument impermissibly referred to Jackson's prior criminal record, in violation of a pretrial motion in limine order excluding evidence of Jackson's two prior rape convictions. We do not agree. The prosecutor referred to Jackson's threat as reported by the victim in her testimony. One element of the crime is "threatening the use of deadly force." IND.CODE § 35-42-4-1 (1993). Precisely what the defendant said to the victim is critical evidence as to that element. The evidence was not offered to show character or propensity as proscribed by Indiana Evidence Rule 404(b). Rather, it was offered to prove an element of the crime in this case. This the State was entitled to do. Hale v. State, 547 N.E.2d 240, 243 (Ind.1989) (prosecutor can comment on and draw logical conclusions from the evidence).

Moreover, the prosecutor did not refer to the prior rape convictions as such. To the extent the prosecutor alluded to the possibility that Jackson had served time in prison, this is distinguishable from the convictions excluded under the motion in limine. Nothing in the record indicates Jackson was incarcerated as punishment for the rape convictions. Because a proper objection on this point would not have been sustained, trial counsel was not ineffective for failing to make the objection. Trial counsel could have asked for a limiting instruction to the effect that the victim's testimony should be considered only as proof of the deadly force element. However, Jackson's own reference (whether true or not) to prior time in prison is so integral to this proof, and no other evidence suggested a prior criminal record to the jury. Accordingly, we see neither deficient attorney performance nor sufficient prejudice for reversal.

B. Failure to object to comments during closing argument

Jackson argues that trial counsel was ineffective for failing to object to several comments made by the prosecutor during closing arguments. A prosecutor, in final arguments, may "state and discuss the evidence and reasonable inferences derivable therefrom so long as there is no implication of personal knowledge that is independent of the evidence." Hobson v. State, 675 N.E.2d 1090, 1096 (Ind.1996) (internal quotation marks and citation omitted). Jackson challenges the following remarks here:

[M]aybe I can almost hear [Jackson] now rising up in righteous indignation saying no, I showed no emotion because I didn't do those things. Well you know what I didn't either and it was all I could do to keep from breaking down yesterday. I don't know if you noticed it or not. And I know that it was all a lot of you could do to keep from doing that because I observed you and none of you did it either.

Jackson maintains that these comments were objectionable because they reflected the prosecutor's personal feelings and observations of the defendant during trial. Although Jackson may be correct as a technical matter, he does not explain what difference an objection at this stage would have made nor why the failure to object was unreasonable attorney performance. The competent professional assistance guaranteed by the Sixth Amendment does not require a lawyer to object at every opportunity. Numerous factors bear on the decision to object, including probable effect on the trial outcome and the possible impact of calling the jury's attention to the evidence or statement argued to be objectionable. This case involved testimony by a victim of a threatened rape in the course of an extended period of terror. Certainly it was within the wide range of reasonable attorney performance not to focus attention on whether the evidence here merited a strong emotional reaction by the defendant or anyone else.

Jackson further contends his counsel's failure to object to the prosecutor's argument rendered his counsel ineffective because the prosecutor's comments were reasonable comments on the evidence only when coupled with the prosecutor's knowledge of Jackson's two prior rape convictions. According to Jackson, the victim's account, standing alone, "should not normally rise such passions in a reasonable person." We disagree that this raises any issue of ineffective assistance. The victim's testimony established that Jackson assaulted her, confined her, and threatened to take her life. The State's suggestions that the jury might have reacted emotionally to this account was not an inappropriate comment on this evidence. Trial counsel, consequently, was not ineffective for failing to object.

Jackson next challenges failure to object to the prosecutor's argument that the assault took place with a deadly weapon:

[W]hat does [Jackson] have in his hand? A key maybe. Where does it go? In her side. What does it feel like? It feels like a knife...