Duane R. Tackett v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 20, 2018
• Docket: 18A05-1707-PC-1593
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 20 2018, 10:06 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Liisi Brien Monika Prekopa Talbot Deputy Public Defender Supervising Deputy Attorney Indianapolis, Indiana General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Duane R. Tackett, March 20, 2018 Appellant-Defendant, Court of Appeals Case No. 18A05-1707-PC-1593 v. Appeal from the Delaware Circuit Court 1 State of Indiana, The Honorable Marianne L. Appellee-Plaintiff. Vorhees, Judge Trial Court Cause No. 18C01-1404-PC-002

Mathias, Judge.

[1] Duane R. Tackett (“Tackett”) appeals the order of the Delaware Circuit Court

denying his petition for post-conviction relief. On appeal, Tackett presents one

Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018 Page 1 of 10 issue, which we restate as whether the post-conviction court clearly erred in

determining that Tackett’s trial counsel was not constitutionally ineffective for

failing to impeach a witness for the State.

[2] We affirm.

Facts and Procedural History [3] In our memorandum decision in Tackett’s direct appeal, we set forth the facts

underlying Tackett’s convictions as follows:

A.J. was born on July 24, 1980, and suffers from mental retardation, seizure disorder, cerebral palsy, and autism. During the investigation and trial, when A.J. was in her late twenties, her IQ was 57 and she had the mental capacity of a seven- to nine- year-old. Tackett married A.J.’s mother, Patricia, in 1983. As A.J.’s step-father, Tackett began touching A.J. in a sexual manner while A.J. was in elementary school, and continued while A.J. was in middle school and, after the three-person family moved to Kentucky, while A.J. was in high school.

Specifically, Tackett touched A.J.’s breasts and vagina with his mouth, and placed his penis inside A.J.’s vagina. He touched A.J.’s rear-end as well, and had her touch his penis with her hands and mouth. On at least one occasion, Tackett attempted to place his penis inside A.J.’s anus, but Patricia stopped him because A.J. was in “too much” pain. Transcript at 327. Tackett and Patricia told A.J. that “what goes on in the bedroom stays in the bedroom.” Id. at 74 (in question by prosecutor with agreement by A.J.); see id. at 315 (in question by prosecutor with agreement by Patricia). Tackett’s regular sexual relations with A.J. continued until his arrest in mid-2008.

Tackett, Patricia, and A.J. moved back to Indiana from Kentucky in March 2008, when A.J. was twenty-seven years old.

Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018 Page 2 of 10 Soon after their return, Sylvia Norris, A.J.’s aunt who lived in Indiana, noticed A.J. wore a ring and asked A.J. why she wore it on her left ring finger. A.J. did not respond. Norris then noticed A.J. also wore a birth control patch. In early May 2008, A.J. told Norris and another aunt that Tackett forced her to pull her pants down, and hit her when she did not do so. Norris contacted the police and on May 13, 2008, the State charged Tackett with rape, sexual misconduct with a minor, and criminal deviate conduct, all Class B felonies, and child solicitation, a Class D felony. A jury found Tackett guilty as charged, and the trial court entered a judgment of conviction as to all four offenses. Following a hearing, the trial court sentenced Tackett to consecutive twenty-year sentences for each Class B felony, to be served concurrent with a three-year sentence for child solicitation, for an aggregate sentence of sixty years. . . .

Tackett v. State, 18A05-1101-CR-0007, 2012 WL 252422, slip op. at 3–4 (Ind.

Ct. App. Jan. 26, 2012) (footnote omitted), trans. denied.

[4] On direct appeal, Tackett claimed that: (1) the evidence was insufficient to

show that his offenses were committed within the statute of limitations; (2) the

trial court erred in determining that A.J. need not testify in Tackett’s physical

presence; (3) the trial court erred in permitting three witnesses to repeat prior

consistent statements by A.J., (4) the trial court erred in denying Tackett’s

request to re-cross examine A.J., (5) his convictions constituted impermissible

double jeopardy; and (6) his sixty-year sentence was inappropriate. Rejecting all

Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018 Page 3 of 10 of these claims, we affirmed.1 Our supreme court denied Tackett’s petition to

transfer. Tackett v. State, 969 N.E.2d 604 (Ind. 2012) (table).

[5] On April 2, 2014, Tackett filed a pro se petition for post-conviction relief. On

April 4, 2016, Tackett, now represented by counsel from the Indiana Public

Defender’s office, filed an amended petition for post-conviction relief. On

January 13, 2017, the post-conviction court held an evidentiary hearing on

Tackett’s petition.2 On June 28, 2017, the post-conviction court entered findings

of fact and conclusions of law denying Tackett’s petition. Tackett now appeals.

Post-Conviction Standard of Review [6] Post-conviction proceedings are not “super appeals” through which convicted

persons can raise issues they failed to raise at trial or on direct appeal. McCary v.

State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead

afford petitioners a limited opportunity to raise issues that were unavailable or

unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

(Ind. 2002). The post-conviction petitioner bears the burden of establishing

grounds for relief by a preponderance of the evidence. Henley v. State, 881

N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of a petition for

1 The State also charged A.J.’s mother, Patricia, with Class B felony rape, Class B felony sexual misconduct with a minor, and Class D felony child solicitation. On direct appeal, a panel of this court reversed all of Patricia’s convictions, concluding that the State failed to prove territorial jurisdiction beyond a reasonable doubt, i.e. that the crimes Patricia was charged with were committed in Indiana. See Tackett v. State, 18A02- 1008-CR-1053, 2011 WL 1878116 (Ind. Ct. App. May 16, 2011), trans. denied. 2 Prior to the start of the hearing, Tackett filed a second amended petition that deleted his first two grounds for relief.

Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018 Page 4 of 10 post-conviction relief, the petitioner appeals from a negative judgment. Id. To

prevail on appeal from the denial of post-conviction relief, the petitioner must

show that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Id. at 643–44.

[7] Here, the post-conviction court made specific findings of fact and conclusions

of law in accordance with Indiana Post-Conviction Rule 1(6). On review, we

must determine if the court’s findings are sufficient to support its judgment.

Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

N.E.2d 962. Although we do not defer to the post-conviction court’s legal

conclusions, we review the post-conviction court’s factual findings for clear

error. Id. Accordingly, we will not reweigh the evidence or judge the credibility

of witnesses, and we will consider only the probative evidence and reasonable

inferences flowing therefrom that support the post-conviction court’s decision.

Id.

Ineffective Assistance of Trial Counsel [8] Our supreme court has summarized the law regarding claims of ineffective

assistance of trial counsel as follows:

A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel’s representation fell below an objective standard of reasonableness, and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment. Second, the Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018 Page 5 of 10 defendant must show that the deficient performance prejudiced the defense. To establish prejudice, a defendant must show that there is 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.

Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. The Strickland Court recognized that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. The two prongs of the Strickland test are separate and independent inquiries. Thus, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.

Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations

omitted).

Discussion and Decision [9] Tackett argues that his trial counsel was ineffective for failing to impeach the

victim, A.J., with her prior testimony from her mother Patricia’s trial that the

molestation began when she was attending high school in Kentucky. Tackett

claims that had his counsel impeached A.J. on this issue, the State would not

have been able to prove territorial jurisdiction.

Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018 Page 6 of 10 A. Territorial jurisdiction

[10] Indiana Code section 35-41-1-1(b) provides that “[a] person may be convicted

under Indiana law of an offense if: (1) either the conduct that is an element of

the offense, the result that is an element, or both, occur in Indiana.” The

Indiana Criminal Code does not list jurisdiction as an element of most offenses.

See An-Hung Yao v. State, 975 N.E.2d 1273, 1276 (Ind. 2012). Nonetheless our

supreme court held in An-Hung Yao that “[t]he plain, ordinary, and usual

meaning of [Indiana Code section 35-41-1-1] clearly establishes ‘in Indiana’ as a

prerequisite for Indiana criminal prosecutions and thus restricts the power to

exercise criminal jurisdiction to Indiana’s actual territorial boundaries.” 975

N.E.2d at 1276 (citing Benham v. State, 637 N.E.2d 133, 137 (Ind. 1994)). Thus,

our courts treat territorial jurisdiction as though it were an element of an offense

which the State must prove beyond a reasonable doubt. Id. at 1276–77 (citing

Ortiz v. State, 766 N.E.2d 370, 375 (Ind. 2002)). Accordingly, the issue of

territorial jurisdiction must be submitted to the jury unless the court determines

no reasonable jury could fail to find territorial jurisdiction beyond a reasonable

doubt.” Id.

B. A.J.’s Testimony

[11] Tackett claims that his trial counsel should have impeached A.J.’s testimony at

his trial with her testimony in her mother’s trial. Tackett specifically refers to

the following portions of A.J.’s testimony on direct examination at her mother’s

trial:

Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018 Page 7 of 10 Q. Okay. [A.J.], do you remember how old you were the first time this happened, the first time that [Tackett] touched you in a way that you didn’t like? A. (Inaudible). Q. Okay. Were you in high school? A. Magoffin County High School [in Kentucky].

Post-Conviction Ex. Vol., Petitioner’s Ex. C., p. 424. A.J. also testified on

cross-examination as follows:

Q. . . . [T]he touches you didn’t like, and you talked about [Tackett]. I need to know, did those touches happen in Indiana or Kentucky: A. Kentucky. Q. Kentucky? A. Yeah.

Id. at 464.

[12] In contrast, at Tackett’s trial, A.J. testified on direct examination as follows:

Q. Alright, [A.J.], when [Tackett] started touching you, the first time when he started touching you, do you remember what school you were going to? A. Grissom [Elementary School in Muncie, Indiana]. Q. You were going to Grissom? A. Uh-huh.

Trial Tr. p. 247.

Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018 Page 8 of 10 [13] At the post-conviction hearing, Tackett’s trial counsel testified that he

strategically chose not to cross-examine A.J. regarding her prior testimony. He

testified that he did not desire to bring up anything that happened in Kentucky

out of concern that referencing her prior testimony would have only exposed

the jury to more “graphic details” and even more acts of molestation that might

have occurred. See P-C.R. Transcript at 17–18. Indeed, trial counsel testified

that he was well aware of the territorial jurisdiction issues that plagued

Patricia’s trial, but believed that these issues were not a problem in Tackett’s

trial because of A.J.’s testimony that clearly stated that the crimes took place in

Indiana.

[14] Given the considerable discretion afforded to counsel in choosing strategy, we

cannot say that Tackett’s trial counsel’s strategy fell below an objective standard

of reasonableness. Indeed, it seems entirely reasonable for Tackett’s trial

counsel to desire not to expose the jury to evidence of further misconduct on

Tackett’s part. In fact, counsel’s strategy appears to have been to argue to the

jury that A.J.’s testimony was suspect due to the influence of her aunt, who had

given her gifts and promised her more gifts in return for testifying. We cannot

say that this strategy was clearly inferior to attacking A.J.’s credibility regarding

territorial jurisdiction.

[15] Accordingly, we conclude that the post-conviction court did not clearly err in

determining that the performance of Tackett’s trial counsel did not fall below an

objective standard of reasonableness and that Tackett’s trial counsel was

therefore not constitutionally ineffective.

Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018 Page 9 of 10 Conclusion [16] It was Tackett’s burden as a post-conviction petitioner to establish his claim for

relief. Thus, on appeal he must show that the evidence as a whole led

unerringly and unmistakably to a conclusion that his trial counsel was

ineffective. He has not done so. We therefore affirm the judgment of the post-

conviction court.

[17] Affirmed.

Najam, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018 Page 10 of 10