Khalid M. Jackson-Bey v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 8, 2015
• Docket: 45A03-1311-PC-506
• Status: Published

Opinion

MEMORANDUM DECISION Oct 08 2015, 9:58 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.

APPELLANT, PRO SE ATTORNEYS FOR APPELLEE Khalid M. Jackson-Bey Gregory F. Zoeller Indiana State Prison Attorney General of Indiana Michigan City, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Khalid M. Jackson-Bey, October 8, 2015

Appellant-Petitioner, Court of Appeals Case No. 45A03-1311-PC-506 v. Appeal from the Lake Superior Court

State of Indiana, Trial Court Cause No. 45G04-1103-PC-1 Appellee-Respondent. The Honorable Thomas P. Stefaniak, Judge The Honorable Natalie Bokota, Magistrate

Pyle, Judge.

[1] Khalid M. Jackson-Bey (“Jackson-Bey”), pro se, appeals the denial of his

petition for post-conviction relief regarding his convictions for murder and

Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015 Page 1 of 9 robbery. In his petition, he claimed that he received ineffective assistance of

trial counsel because his attorney: (1) did not object during the State’s opening

statement; (2) waived opening statement; and (3) failed to interview or depose

the State’s witnesses. He also claimed that the State committed prosecutorial

misconduct by using perjured testimony to secure his conviction. Concluding

that Jackson-Bey’s trial counsel was not ineffective and that Jackson-Bey’s

claim of prosecutorial misconduct was not a cognizable issue for post-

conviction relief proceedings, we affirm the denial of his petition.

[2] We affirm.

Issue Whether the post-conviction court erred in denying Jackson- Bey’s petition for post-conviction relief.

Facts [3] The underlying facts of Jackson-Bey’s crimes were set forth in the opinion from

his direct appeal as follows:

[4] On November 16, 2007, Anthony Rias, Jr., Jamal Hillsman, Edgar Covington, Jermaine Hammonds, and Mrtyrone Metcalf visited with Jackson-Bey and his brother, Haneef, at the Jackson- Bey home. Rias asked the Jackson-Bey brothers and Metcalf if the wanted to “do a lick” (in street terms, commit a robbery). (Tr. 311)[.] The group of young men, excluding Haneef, left in Hillsman’s blue Ford Explorer. Jackson-Bey was armed with a small silver gun. They picked up Jamil Pirant, and Rias and Jackson-Bey explained to him “about the lick.” (Tr. 314)[.] Metcalf inquired whether Pirant had a pistol; at first Pirant

Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015 Page 2 of 9 jokingly replied that he had left it behind but then assured Metcalf that he had the pistol. The group proceeded to a White Castle, where Rias procured a loaner vehicle (a white Ford Explorer) from one of his friends. Rias, Metcalf, Pirant, and Jackson-Bey drove off in the white Explorer, with Hillsman, Covington, and Hammonds following in the blue Explorer. Rias, who had been driving the white Explorer, stopped the vehicle in an alley. The three occupants of his vehicle went to the apartment of Dominique Keesee. The blue Explorer was parked nearby. Keesee answered his door, and Jackson-Bey advised that he wanted to buy marijuana. Keesee agreed to the sale and went to get the marijuana; Metcalf and Pirant forced their way into the apartment. Jackson-Bey followed. Outside, Covington heard gunshots. Hammond exited the blue Explorer and began to run. Rias drove up to Hillsman’s vehicle and directed him to follow so that the white Explorer could be hidden. Once the white Explorer was parked, Rias got into Hillsman’s blue Explorer and they proceeded to the alley by Keesee’s apartment. Jackson-Bey, Metcalf, and Pirant came running up to the vehicle with bags in hand. With Hillsman, Rias, Jackson-Bey, Metcalf, Pirant, and Covington present, there was some discussion of the events that had transpired. Rias asked Jackson-Bey “is it done” and Jackson-Bey replied, “it is done.” (Tr. 536.) Jackson-Bey indicated that Metcalf had shot Keesee in the chest and further stated, “We come to kill him.” (Tr. 538.) Dionne Austin found Keesee in his apartment, suffering from gunshot wounds to the head and chest. He had been shot approximately fifteen times[] from two .22 caliber weapons. Medical assistance to Keesee proved futile and he died. Meanwhile, Rias and Hillsman returned the white Explorer to its owner and Covington, Jackson-Bey, Metcalf and Pirant went back to the Jackson-Bey house. Haneef divided up the marijuana

Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015 Page 3 of 9 and some of the young men began to play a video game that had been stolen from Keesee. Several months later, Jackson-Bey’s attorney advised the Lake County Sheriff’s Department that Jackson-Bey had information about Keesee’s murder. Jackson-Bey gave a statement indicating that Rias and Hillsman were the “shooters” that had killed Keesee. (State’s Ex. 64a, pg. 3.) Subsequently, Jackson-Bey gave a statement identifying Metcalf and Pirant as the shooters. Ultimately, Jackson-Bey, Metcalf, and Rias were charged with Keesee’s murder.

Jackson-Bey v. State, No. 45A03-0908-CR-365, slip op. at 1 (Ind. Ct. App. March

15, 2010). A jury found Jackson-Bey guilty of murder and robbery, and he was

sentenced to a total of sixty-five (65) years in prison. He appealed his

convictions, claiming that the trial court committed fundamental error in

instructing the jury, that insufficient evidence supported his conviction, and that

his sentence was inappropriate. We found no errors and affirmed his

conviction.

[5] On March 4, 2011, Jackson-Bey filed a pro se petition for post-conviction relief,

claiming that he received ineffective assistance of trial counsel and alleging

prosecutorial misconduct against the State. The post-conviction court began an

evidentiary hearing on December 19, 2012, and, after a continuance, concluded

the hearing on March 15, 2013. Jackson-Bey’s trial counsel, Noah Holcomb

(“Attorney Holcomb”), testified about representing him during his murder trial.

Specifically, he testified about not giving an opening statement and not

deposing the State’s witnesses.

Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015 Page 4 of 9 [6] As to waiving opening statement, Holcomb testified that, “from [his] standpoint

[and] his evaluation of the State’s evidence, [if] it’s going to be fairly strong

against my client, I will not give an opening statement.” (Tr. 37). In response

to a hypothetical posed by Jackson-Bey, Holcomb explained that if the State

mentioned certain evidence in opening statement and failed to introduce that

evidence, he would take advantage of it in closing arguments rather than

making an objection. As to depositions, Holcomb testified that the extent of

discovery provided by the State dictated the need for depositions. He also

stated that he cautions his clients on taking depositions of civilian witnesses

because of the State’s ability to use those depositions if the witness later

becomes unavailable to testify at trial.

[7] Finally, Jackson-Bey alleged that the State committed prosecutorial misconduct

by using perjured testimony. In an attempt to point out inconsistencies in a

witness’s testimony, Jackson-Bey attempted to support this allegation by

admitting portions of the transcript from his co-defendant’s trial, which took

place after his. The post-conviction court entered its findings of fact and

conclusions thereon denying Jackson-Bey’s petition for post-conviction relief.

He now appeals the denial of his petition.

Decision [8] Jackson-Bey appeals the post-conviction court’s order denying post-conviction

relief on his claims of prosecutorial misconduct and ineffective assistance of

trial counsel.

Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015 Page 5 of 9 [9] We observe that post-conviction proceedings do not grant a petitioner a “super-appeal” but are limited to those issues available under the Indiana Post-Conviction Rules. 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). A petitioner who appeals the denial of PCR 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. The appellate court must accept the post- conviction court’s findings of fact and may reverse only if the findings are clearly erroneous. If a PCR petitioner was denied relief, he or she must show that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion than that reached by the post-conviction court.

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations

omitted), trans. denied.

[10] At the outset, we note that while the post-conviction court addressed the merits

of Jackson-Bey’s claim of prosecutorial misconduct, that argument is not

appropriate for post-conviction relief proceedings. Post-conviction proceedings

do not provide a petitioner with an opportunity to present freestanding claims

that contend the original trial court committed error. Wrinkles v. State, 749

N.E.2d 1179, 1187 n. 3 (Ind. 2001). “In post-conviction proceedings,

complaints that something went awry at trial are generally cognizable only

when they show deprivation of the right to effective counsel or issues

demonstrably unavailable at the time of trial or direct appeal.” Sanders v. State,

765 N.E.2d 591, 592 (Ind. 2002).

Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015 Page 6 of 9 [11] The alleged perjured testimony took place during the trial of one of Jackson-

Bey’s co-defendants, which occurred after Jackson-Bey had been convicted and

before he filed his appellate brief. He makes no argument that this claim was

unavailable to him on direct appeal. Accordingly, Jackson-Bey’s prosecutorial

misconduct claim is a freestanding claim of error at trial that is not cognizable

during post-conviction proceedings. See, e.g., Myers v. State, 33 N.E.3d 1077,

1115-16 (Ind. Ct. App. 2015) (claim of prosecutorial misconduct failed where

raised for the first time in post-conviction proceedings instead of direct appeal),

trans. denied. Thus, we turn to Jackson-Bey’s claims of ineffective assistance of

[12] A claim of ineffective assistance of trial counsel requires a showing that: (1)

counsel’s performance was deficient by falling below an objective standard of

reasonableness based on prevailing professional norms; and (2) counsel’s

performance prejudiced the defendant such that “‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

(Ind .2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)), reh’g

denied, cert. denied. “Failure to satisfy either of the two prongs will cause the

claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012)

(citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)), trans. denied. Most

ineffective assistance of counsel claims can be resolved by a prejudice inquiry

alone. French, 778 N.E.2d at 824.

Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015 Page 7 of 9 [13] Jackson-Bey first claims that his trial counsel was ineffective because he did not

interview or take depositions of the State’s witnesses. Our supreme court has

clearly stated, “counsel’s failure to interview or depose State’s witnesses does

not, standing alone, show deficient performance.” Williams v. State, 724 N.E.2d

1070, 1076 (Ind. 2000). “The question is what additional information may

have been gained from further investigation and how the absence of that

information prejudiced his case.” Id.

[14] Here, Jackson-Bey makes general allegations of what Attorney Holcomb could

have done with depositions, but he points to no specific information that

depositions would have revealed. Without specific information, there is no way

to tell what information would have been discovered that would have affected

the result of his trial. Accordingly, he has shown no prejudice in Attorney

Holcomb’s decision not to depose witnesses. See, e.g., id.

[15] Jackson-Bey’s remaining claims of ineffective assistance of trial counsel revolve

around opening statements. He claims Attorney Holcomb was ineffective

because he did not object during the State’s opening statement and because he

did not give an opening statement on Jackson-Bey’s behalf.

[16] Before a defendant can show that his counsel’s failure to object constitutes

deficient performance, the defendant must be able to show that the objection

would have been sustained. Whitener v. State, 696 N.E.2d 40, 44 (Ind. 1998)

(citing Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997)). Jackson-Bey’s claim

here fails because he does not direct our attention to anything in the State’s

Court of Appeals of Indiana | Memorandum Decision 45A03-1311-PC-506 | October 8, 2015 Page 8 of 9 opening statement that was objectionable. Again, Jackson-Bey makes general

claims about what happened but points to nothing specific in the record.

Specifically, he merely asserts that the State introduced unproven facts and

misled the jury during its opening statement. Despite the fact that everything is

unproven during an opening statement, we cannot assess his claim without a

specific reference to what might have been objectionable. As a result, we find

that Attorney Holcomb did not render ineffective assistance of counsel when he

failed to object.

[17] As to Jackson-Bey’s remaining complaint about opening statements, our

supreme court has spoken clearly and succinctly on the matter: “[t]he decision

not to make an opening statement is a matter of trial strategy and will not

support an ineffective assistance claim.” Douglas v. State, 663 N.E.2d 1153,

1155 (Ind. 1996).

[18] Finding that Jackson-Bey has not shown that the post-conviction court’s

decision was clearly erroneous, we affirm its order denying Jackson-Bey’s

petition for post-conviction relief.

[19] Affirmed.

Crone, J., and Brown, J., concur.

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