MEMORANDUM DECISION Jul 13 2015, 8:25 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana J. Michael Sauer Ellen H. Meilaender Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gene Hooks, July 13, 2015
Appellant-Petitioner, Court of Appeals Case No. 82A01-1412-PC-546 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Pigman, Judge Appellee-Respondent. Cause No. 82D03-1108-PC-6
Kirsch, Judge.
[1] The Vanderburgh Superior Court denied Gene Hooks’s petition for post-
conviction relief, and he now appeals claiming that the post-conviction court
clearly erred in denying his petition. On appeal, he raises one issue that we
restate as: whether trial counsel provided ineffective assistance for failing to
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 1 of 18 object during trial and during the State’s closing argument and for presenting
purportedly inconsistent defense theories during opening statement and closing
argument.
[2] We affirm.
Facts and Procedural History [3] The facts underlying Hooks’s convictions, as presented in his direct appeal, are:
Hooks and his wife, Maxine, often babysat for their daughter Aleta’s children, including I.W., who was born in December 2001, and C.H., who was born in May 1995. In July 2008, Aleta’s fiancé, Maurice, walked into I.W.’s bedroom and saw her “humping” a pillow with her hand near her genital area. I.W. told Maurice that Hooks had “messed” with her. I.W. told Aleta that Hooks had put his “thing” or “private” on her “private.” According to I.W., Hooks took her into the laundry room, had her stand on a stepping stool, removed her pants, placed cocoa butter on her genital area, and rubbed his penis on her genitals. After he stopped, he would give I.W. some toilet paper and tell her to wipe off the cocoa butter. Later, Maxine went to Maurice’s residence to talk to Aleta and the girls. While Maxine was questioning C.H., C.H. said that Hooks had also touched her. According to C.H., Hooks started touching her when she was five years old. C.H. said that, when Hooks and Maxine lived in an apartment, he would put C.H. on his lap, pull her pants down, put cocoa butter on her, and rub his penis on her inner thigh. When Hooks and Maxine moved into a new house, he would put her on the step stool in the laundry room, put cocoa butter on her, and rub his penis against her vagina. Afterwards, Hooks would give her a paper towel, and she would clean the cocoa butter and “white goopey stuff” off of herself. Hooks stopped touching C.H. when she was eleven. When she was five years old, C.H. drew a picture of what was happening and gave it to Maxine, but Maxine told C.H. to stop lying. In 2001, Maxine and Hooks adopted twin sons belonging to Maxine’s cousin, Helen. In 2006 through mid-2008, Maxine and Hooks also
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 2 of 18 took care of two more of Helen’s children, including her daughter L.Y., who was born in June 1998, while Helen was incarcerated. After Helen learned of C.H. and I.W.’s allegations, L.Y. told Helen that Hooks had also touched her. Hooks v. State, No. 82A01-1005-CR-220, slip op. at *1, 941 N.E.2d 567 (Ind. Ct.
App. Jan. 26, 2011), trans. denied (citations omitted).
[4] The State charged Hooks with three counts of child molesting, one as a Class A
felony, alleging sexual intercourse with L.Y., and two as Class C felonies,
alleging fondling or touching of I.W. and C.H., respectively. The State later
amended the charging information to allege two more Class A felony child
molesting counts, for having engaged in sexual intercourse with I.W. and with
C.H.
[5] A four-day jury trial was held in March and April 2010. Hooks was represented
by attorney counsel Steven Bohleber both before and during trial. Bohleber
conducted pretrial discovery, including written discovery and multiple
depositions. At trial, the State presented the testimony of eight witnesses, and
the defense called five witnesses, including Hooks. During trial, L.Y. became
unresponsive to questions, having answered “only a fraction of the questions
asked” and “most of her answers were barely audible or inaudible.” Id. at *2.
Consequently, Hooks moved to strike L.Y.’s testimony. Although the trial
court denied the motion, it later terminated the direct examination and
instructed the jury not to consider L.Y.’s testimony, finding that it was
insufficiently probative and the jury could not consider it. The trial court then
granted a directed verdict regarding Count I, Class A felony child molesting,
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 3 of 18 which had alleged that Hooks engaged in sexual intercourse with L.Y. At the
close of the State’s evidence, Hooks moved for and the trial court granted
directed verdicts on the other two Class A felonies as well, based on lack of
evidence as to intercourse with I.W. and C.H.
[6] The jury found Hooks guilty of the two remaining Class C felonies, and the trial
court sentenced him to two consecutive six-year sentences. Id. On direct
appeal, Hooks asserted that the trial court erred by not striking certain witness
testimony and claimed that the evidence was insufficient to sustain his
convictions. Id. at *2-4. This court affirmed his convictions. Id. at *4.
[7] On August 4, 2011, Hooks filed a pro se petition for post-conviction relief, and
after the Public Defender of Indiana filed an appearance on his behalf, Hooks
filed an amended petition, alleging that trial counsel: (1) failed to object to, or
prevent the introduction of, evidence “that Hooks threatened to kill people,
pulled guns on people, fired guns at persons and residences, possessed weapons,
and had a violent character”; (2) made claims in opening statement that he
knew or should have known would not be supported by trial evidence and, in
closing argument, failed to advocate in line with Hooks’s trial testimony; and
(3) failed to object during the State’s closing argument when the prosecutor
mentioned matters not in evidence. Appellant’s App. at 46.
[8] The post-conviction court held a two-day hearing. Bohleber testified at the
hearing at length, and an expert who reviewed the trial record of proceedings
also testified, opining that Bohleber performed ineffectively in Hooks’s defense.
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 4 of 18 In December 2014, the post-conviction court entered written findings of fact
and conclusions thereon denying post-conviction relief. Hooks now appeals.
Discussion and Decision [9] Post-conviction proceedings are not “super appeals” through which a convicted
person can raise issues that he did not raise at trial or on direct appeal.
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied 537 U.S. 839
(2002); Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013) (quoting
Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013)), trans. denied. Instead, post-
conviction proceedings afford petitioners a limited opportunity to raise issues
that were unavailable or unknown at trial and on direct appeal. Hinesley, 999
N.E.2d at 981. Post-conviction proceedings are civil in nature, and petitioners
bear the burden of proving their grounds for relief by a preponderance of the
evidence. Ind. Post-Conviction Rule 1(5); Garcia v. State, 936 N.E.2d 361, 363
(Ind. Ct. App. 2010), trans. denied. A petitioner appealing from the denial of
post-conviction relief stands in the position of one appealing from a negative
judgment. Id. A petitioner who appeals the denial of post-conviction relief
faces a rigorous standard of review, as the reviewing court may consider only
the evidence and the reasonable inferences supporting the judgment of the post-
conviction court. McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012)
(citing Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans.
denied), trans. denied. The defendant must establish that the evidence, as a
whole, unerringly and unmistakably leads to a conclusion opposite that reached
by the post-conviction court. Hinesley, 999 N.E.3d at 981; Garcia, 936 N.E.2d at
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 5 of 18 363. “‘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.’” Wilkes, 984 N.E.2d at 1240 (quoting Stevens v. State, 770 N.E.2d 739, 745
(Ind. 2002), cert. denied 540 U.S. 830 (2003)) (emphasis in original).
[10] Hooks claims that the post-conviction court erred by concluding that he
received effective assistance of counsel. To prevail on a claim of ineffective
assistance of counsel, a petitioner must demonstrate both that his counsel’s
performance was deficient and that he was prejudiced thereby. Wilkes, 984
N.E.2d at 1240 (citing Strickland v. Washington, 466 U.S. 668 (1984)). This is
the so-called Strickland test. This standard first asks whether, considering all the
circumstances, counsel’s actions were “reasonable[ ] under prevailing
professional norms.” Id. As our Supreme Court has explained,
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. Timberlake, 753 N.E.2d at 603 (citations and quotations omitted).
[11] Even if counsel’s performance is deficient, the defendant must demonstrate that
counsel’s performance actually prejudiced the defense. Wilkes, 984 N.E.2d at
1241. “‘To establish the requisite prejudice, a petitioner must show there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 6 of 18 the proceeding would have been different.’” McCullough, 973 N.E.2d at 74-75.
Our Supreme Court has stated that a “reasonable probability” is a probability
sufficient to undermine confidence in the outcome. Smith v. State, 765 N.E.2d
578, 585 (Ind. 2002). The two elements of Strickland are separate and
independent inquiries. Failure to satisfy either prong will cause the claim to
fail, but most ineffective assistance of counsel claims can be resolved by a
prejudice inquiry alone. McCullough, 973 N.E.2d at 75.
A. Evidence of Violence
[12] Hooks claims that his trial counsel rendered constitutionally ineffective
assistance by allowing into evidence certain testimony that Hooks owned guns
and knives and had used them in a way to indicate a violent character. More
specifically, Hooks challenges trial counsel’s failure to prevent the introduction
of certain evidence, including the following: (1) I.W.’s testimony that Hooks
told her that he “was going to kill [her] daddy” “because he didn’t like him”
(Trial Tr. at 59-60) ; (2) I.W.’s testimony that she observed Hooks and her father
during an argument, and Hooks “got a gun” (Id. at 66); (3) Aleta’s testimony
that she had reason to be fearful of Hooks because he kept weapons in the
house, she knew “what he was capable of,” and that, when she was eighteen or
nineteen years old, Hooks had “shot my house up, and tried to shoot my kids’
dad, my oldest kids’ dad” (Id. at 163-64); (4) Aleta’s testimony that her
daughter V.H., who was not a victim in this case, said that Hooks “pulled guns
on her” (Id. at 167); (5) Aleta’s testimony, in response to a juror question
regarding whether Hooks kept any guns in a closet by the laundry room, that
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 7 of 18 Hooks kept a gun and a sword in a hall closet by the laundry room; (6) C.H.’s
testimony that Hooks had a silver gun that “he pointed [] at me but I wasn’t
scared of it” (Id. at 205); (7) V.H.’s testimony that Hooks “put a gun to my head
before and asked me if I was scared” . . . “just to spite me[,] but he doesn’t scare
me.” (Id. at 231); (8) and Helen’s testimony that when she and relatives went to
Hooks’s house to confront him after Helen’s daughter L.Y. alleged that he had
molested her, Hook “put a gun on us, and we all jumped back in the car and
left.” Id. at 252. Hooks maintains this “barrage of extrinsic evidence regarding
his conduct and character” was irrelevant to the charged offenses and
prejudiced him, claiming that it “stripped [him] of his presumption of
innocence, predisposed the jury to find him guilty, and made a fair trial
impossible.” Appellant’s Br. at 10-11; see also id. at 25.1 We disagree.
[13] At the post-conviction hearing, Hooks’s post-conviction counsel examined
Bohleber about the various instances at trial when witnesses testified to Hooks
keeping a gun or knife in the house and/or in a closet near the location of the
molestations, or pointing a gun at people on specific occasions, or having made
threats to kill Maurice because he did not like him. Post-conviction counsel
inquired of Bohleber why he did not file a motion in limine to keep out such
evidence, or object during trial on relevance grounds or some other grounds,
including objecting to juror questions that eventually were posed asking if
1 Hooks claims that trial counsel should have objected to the evidence “on the basis that it violated Ind. Evidence Rule 402, 404(a), and 404(b),” and the trial court “would have had no choice but to sustain the objections.” Appellant’s Br. at 18.
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 8 of 18 Hooks kept a gun in his house and if I.W. had ever seen him with a gun.
Bohleber conceded that, in hindsight, the witnesses’ testimonies in some
instances may have been irrelevant. However, Bohleber explained, as he
understood the State’s strategy, the State intended to show that Hooks
controlled the girls through use of, or possession of, the guns and knives, and
thus such evidence was, or could have been considered, relevant from the
State’s perspective. Bohleber also testified that when evidence of Hooks’s
possession of or pointing of a gun initially came into evidence, he viewed it as
“simply another of the spurious allegations” against Hooks, and did not view it
as a major threat to the defense’s case; Bohleber conceded, however, that as
trial progressed, more evidence of such incidents was introduced and, in a
sense, that angle “developed a life of its own,” which he had not anticipated.
PCR Tr. at 21.
[14] We have recognized, “[A]s a trial unfolds, events occur, some unexpected, that
counsel must react to in real time. Thus, an appellate court cannot compare
counsel’s real-time performance to what might have been done with the benefit
of hindsight.” McCullough, 973 N.E.2d at 75. Even assuming, as Hooks claims,
that Bohleber’s performance was deficient and that he missed multiple
opportunities to “stem the tide of extrinsic bad act and character evidence,”
Appellant’s Br. at 15, Hooks must show that he was prejudiced by the challenged
evidence, i.e., that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
McCullough, 973 N.E.2d at 74-75. We find that Hooks has not met this burden.
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 9 of 18 [15] When Hooks testified, he denied molesting I.W. and C.H., and he denied ever
threatening his grandchildren with guns or knives. He also denied that he ever
shot at Aleta’s prior home, as she testified that he did. C.H., a victim in this
case, testified that Hooks had previously pulled a gun on her but she “wasn’t
scared[.]” Trial Tr. at 205. Her sister, V.H., who was not a victim in this case,
also testified that Hooks had put a gun to her head “to spite [her]” but reported,
“[H]e doesn’t scare me.” Id. at 231. While I.W. testified that she had seen
Hooks wield a gun during an argument with her father, Maurice, and observing
that scared her, I.W. did not indicate that Hooks held a gun at her or put her in
fear or threatened her not to tell. In fact, she testified that she did not disclose
sooner because she was afraid her mother would be mad. Thus, the girls’
testimonies did not indicate fear of Hooks because of the guns or knives kept in
his home, nor did their testimony support the theory that he used those items to
control them, as the State may have been trying to establish. In line with that,
the State did not refer to any of that evidence in closing argument or make a
propensity argument based on it.
[16] This was a case of minor girls testifying to having been molested by Hooks,
each giving descriptions of where and how it happened – including detail about
step stools and cocoa butter and where other members of the household were at
the time – and Hooks testifying that the molestations did not happen. The jury
heard the evidence and, evidently, credited the children’s testimony over
Hooks’s denial. Hooks has not established that but for trial counsel’s alleged
errors regarding the admission of evidence concerning guns or knives or violent
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 10 of 18 incidents, there is a reasonable probability that the result of the proceeding
would have been different.
B. Trial Counsel’s Opening Statement and Closing Argument
[17] Hooks also claims that Bohleber provided ineffective assistance by (1) making
claims in opening statement that he knew or should have known would not be
supported by the evidence, and (2) adopting a different defense theory in closing
argument, which contradicted and undermined Hooks’s testimony. We
examine each argument in turn.
[18] Bohleber explained at the post-conviction hearing that, initially, the defense
strategy was to illustrate that there was family discord and that Aleta and Helen
had coached their daughters to make the accusations against Hooks in order to
harm him or gain advantage over him. In accordance with that strategy,
Bohleber’s opening statement told the jurors that Aleta and Helen had “long
been at odds” with Hooks and his wife, and he advised the jury to “question the
motives of the parents[.]” Trial Tr. at 10. Bohleber told the jury that such
family discord was evident because – and they would hear evidence that – Aleta
was “in a contentious civil litigation with them at the time these allegations
were made.” Id. Hooks points out that the trial evidence revealed that the
lawsuit, which was a small claims suit for the return of Aleta’s furniture, was
filed after the allegations were made. This, Hooks argues, shows that Bohleber’s
opening statements were not supported by the trial evidence, which Hooks
argues Bohleber knew or should have known, and that by making factual
assertions that were not supported by the evidence, Bohleber diminished the Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 11 of 18 integrity of his defense. He claims that Bohleber “was not prepared for trial and
did not adequately represent [him].” Appellant’s Br. at 20.
[19] Hooks mounts a similar claim that Bohleber, in his opening statement, told the
jury they would hear a witness testify to having heard Aleta and Helen stating
that they were “going to get Gene Hooks” and were “going to put him in jail[,]”
Trial Tr. at 11, thus supporting the idea that the parents schemed “to get”
Hooks and the molestation accusations were simply falsehoods, made up to
hurt Hooks. During trial, witness Thomas Payne testified to having heard
Aleta and Helen “plotting against” Hooks and that Aleta stated she “was going
to get that MF.” Id. at 378-79. However, Payne’s testimony revealed that he
heard this conversation in or around May 2009, well after the allegations of
abuse had been reported to the police in July or August 2008. Hooks argues
that it may have appeared to the jury that Aleta’s statement that she “was going
to get” Hooks was motivated, not by family strife or vengeance, but instead on
parental anger about the allegations that the children had disclosed. Thus,
Hooks asserts, Payne’s testimony may have worked against Hooks as opposed
to in his favor. Hooks argues that Bohleber should have known that Payne’s
testimony would contradict his opening statement and potentially be harmful
rather than helpful to his defense, and his representation was thus ineffective.
[20] We are not persuaded that Bohleber’s opening statement about Aleta’s lawsuit
or Payne’s anticipated testimony, even if they constituted deficient
performance, ultimately prejudiced Hooks, given the other evidence presented
and in view of the full record. In the opening statement, Bohleber suggested
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 12 of 18 that the family was at odds, resulting in false allegations being made against
Hooks, and in support of that contentious relationship, Bohleber presented
evidence during trial of Aleta’s pending lawsuit against Maxine. He also called
Payne as a witness to testify about statements he overheard Aleta make
suggesting she was out to get Hooks. This tactic was consistent with Bohleber’s
opening statement. While Hooks points out that the trial testimony was not
entirely consistent with what was forecasted in the opening statement – i.e., the
lawsuit was filed after and not before the allegations came to light, and,
likewise, Aleta’s statement as overheard by Payne was made after, not before
the allegations by the children were made – we do not find that the alleged
errors were sufficient to undermine confidence in the outcome of the
proceedings.
[21] Hooks next claims that his trial counsel was ineffective because he adopted “a
new defense theory” in closing that contradicted the opening statement as well
as Hooks’s testimony. Appellant’s Br. at 19. Bohleber explained at the post-
conviction hearing that, initially, the defense strategy illustrated that there was
significant family discord and that Aleta and Helen had coached their daughters
to make the accusations against Hooks in order to harm him or gain advantage
over him. In accord with that plan, Bohleber intended to call a variety of family
members as witnesses to illustrate the “war” between camps of the family. PCR
Tr. at 80. However, after Hooks no longer faced three Class A felonies, the
plan shifted away from calling a myriad of family members, which posed its
own risks, to having Hooks testify to deny the girls’ accusations.
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 13 of 18 [22] During trial, Hooks testified that he believed Aleta and Helen had coached their
daughters to falsely accuse him, which was consistent with the strategy
suggested in Bohleber’s opening statement. In closing argument, Bohleber
argued that studies have shown that children can make up allegations of
molestation for a variety of reasons, whether because someone suggested it to
them, or peer pressure, or they simply do it on their own. Hooks argues that
because trial counsel did not strictly stick with the original premise that it was
the parents that were coaching the girls, trial counsel thereby “abandon[ed] this
defense theory” and likewise abandoned his client. Appellant’s Br. at 21. The
post-conviction court determined, and we agree, that “the alleged change in
theories of defense is not [] as pronounced . . . as advocated by the Petitioner.”
Appellant’s App. at 115.
[23] At the post-conviction hearing, Bohleber acknowledged that, after the defense
obtained a directed verdict on the three Class A felonies, leaving the two Class
C felonies pending, the defense strategy shifted somewhat, explaining that he
no longer felt it was necessary to call the family witnesses, which could pose
risks for Hooks, electing to change the defense strategy somewhat, focusing
more on the children’s accusations versus Hooks’s personal denial. We
recognize the defense theory expanded from the somewhat narrow position that
it was entirely the parents’ idea to make up these accusations, which was
suggested in the opening statement, to the wider proposition that it is proven
fact that children have been known to make up accusations of sexual abuse for
a number of reasons, whether because someone told them to do so, or they
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 14 of 18 simply did it on their own accord. However, we are not persuaded that this
change abandoned Hooks or contradicted his testimony. We “will not lightly
speculate as to what may or may not have been an advantageous trial strategy
as counsel should be given deference in choosing a trial strategy which, at the
time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d
40, 42 (Ind. 1998). As we have recognized, “[j]ust because trial counsel is
unable to pursue a defensive strategy as effectively as he or she wanted to does
not mean that the plan was a bad plan.” McCullough, 973 N.E.2d at 76.
“‘Strickland does not guarantee perfect representation, only a reasonably
competent attorney.’” Woodson v. State, 961 N.E.2d 1035, 1041-42 (Ind. Ct.
App. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 110 (2011)), trans. denied.
Here, our review of the record reveals that at the outset of trial, Bohleber
presented a reasonable and sound defense strategy, and although he modified it
based on events that occurred during trial, his performance during trial was
aimed at executing the deliberate defense strategy and was not deficient or
prejudicial to Hooks.
C. State’s Closing Argument
[24] Hooks also alleges that trial counsel was ineffective for failing to object during
the State’s closing argument. Specifically, he argues that, when the prosecutor
commented that the victims’ testimonies matched their prior statements to
police, Bohleber should have objected because there had been no trial evidence
concerning the substance of what the children had said during police interviews.
That is, the statement by the prosecutor was impermissible commentary upon
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 15 of 18 matters not in evidence and, instead, reflected the prosecutor’s personal
knowledge of the case. The post-conviction court characterized the
prosecutor’s comment as “inappropriate,” stating that it “should not have been
presented to the jury” because, although it was established during trial that a
complaint had been made and investigated by police and that the children had
been interviewed, “the [] details of those statements had not been admitted for
the jury’s consideration[.]” Appellant’s App. at 113. The post-conviction court
concluded, however, that any error in failing to object represented an “isolated
incident” and did not amount to either deficient performance or prejudice to
Hooks. Id. at 115. Hooks claims that the post-conviction court was clearly
erroneous in that regard, given that the State’s case was based on the testimony
of I.W. and C.H., and the prosecutor’s comment “unfairly bolstered their
credibility in the eyes of the jury.” Appellant’s Br. at 23.
[25] Initially, we note that Hooks claims that the post-conviction court applied an
incorrect standard when it determined that Hooks did not suffer prejudice. The
post-conviction court found that it was not likely that any objection, even
followed with an admonishment, “would have led to a different result in the
trial.” Appellant’s App. at 115 (Conclusion No. 9). Hooks argues that the
correct standard is whether Hooks established by a preponderance of the
evidence that there was a “reasonable probability” of a different result but for
counsel’s deficient conduct. Appellant’s Br. at 23. We reject Hooks’s claim that
the trial court utilized an improper standard. The post-conviction court’s order
expressly recognized, and indeed defined, the “reasonable probability”
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 16 of 18 standard. Appellant’s App. at 114. After reviewing the post-conviction court’s
order as a whole, we find that Hooks’s reliance upon the singular phrase
“would have led to a different result in the trial” does not consider the full
context of the post-conviction court’s decision, and we are satisfied that the
post-conviction court applied the proper standard when reaching its decision.
[26] The State concedes that it was inappropriate for the prosecutor to have
remarked that the children’s trial testimony matched their statements to police
because the substance of those statements was not in evidence. However, the
State asserts, and we agree, “just because a matter is objectionable does not
mean that it constitutes deficient performance not to object.” Appellee’s Br. at
21. Here, Bohleber testified at the post-conviction hearing that he rarely objects
during a closing argument because (1) closing arguments of counsel are not
evidence, which the jury is told, and the jury is equipped to “sort out the facts,”
and (2) in his opinion, objections at that stage are “rude and intrusive,” and,
further, objections during closing argument are often counterproductive and
create a risk of alienating jurors. PCR Tr. at 77-79. He explained, in his
experience and opinion, an objection may draw more attention to any certain
comment by opposing counsel and, further, might appear to the jury as if
counsel is trying to hide something.
[27] It is not our job to second-guess trial counsel’s strategy and tactics, or suggest
whether some other course would have been better. We are to determine
whether the post-conviction court’s determination as to ineffectiveness, which
assessed whether the representation was deficient and/or prejudicial, was
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 17 of 18 clearly erroneous. Here, we find no error with the post-conviction court’s
determination that error, if any, for not objecting to the prosecutor’s
“inappropriate” commentary (regarding the girls’ testimony as being consistent
with their statements to police) was not prejudicial to Hooks. I.W. and C.H.
gave consistent and detailed testimony about the acts perpetrated by Hooks
against them. The jury was aware that the girls had spoken with police. We
are not persuaded that the jury would not have believed their testimony but for
the prosecutor’s argument in closing that the girls’ trial testimony was
consistent with what they said during police interviews. Given the record
before us, we find no reasonable probability that but for the alleged error, i.e.,
not objecting, the result of the proceeding would have been different.
[28] The State maintains that counsel’s performance, as a whole, was not deficient,
particularly given that trial counsel succeeded in having three Class A felonies
removed from the jury’s consideration. While we agree that this was
commendable, it was still appropriate that we examine the specific complaints
raised by Hooks regarding trial counsel’s performance. Having done so, we
conclude that Hooks has failed to carry his burden to show that the evidence as
a whole leads unerringly and unmistakably to a conclusion opposite that
reached by the post-conviction court. Therefore, we affirm the post-conviction
court’s judgment.
[29] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 18 of 18