MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Aug 02 2018, 9:32 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 Victoria Christ Ian McLean Deputy Public Defender Supervising Deputy Attorney Indianapolis, Indiana General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ricky J. Thurston, August 2, 2018 Appellant-Petitioner, Court of Appeals Case No. 49A02-1710-PC-2279 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt Eisgruber, Appellee-Respondent. Judge The Honorable Steven Rubick, Magistrate Trial Court Cause No. 49G01-1103-PC-14461
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 1 of 14 Case Summary and Issue [1] Ricky Thurston appeals the post-conviction court’s denial of his petition for
post-conviction relief, raising one issue for our review: whether he was denied
the effective assistance of counsel. Concluding that the post-conviction court’s
denial of Thurston’s petition for post-conviction relief was proper, we affirm.
Facts and Procedural History [2] Following a jury trial, Thurston was convicted of rape and criminal
confinement. The trial court subsequently found that he was an habitual
offender. Thurston’s convictions were affirmed by this court. Thurston v. State,
No. 49A02-1204-CR-289 (Ind. Ct. App. Jan. 25, 2013), trans. denied. The facts
of the offenses were determined on direct appeal as follows:
On the evening of October 19, 2006, T.K. became involved in a heated argument with her husband and her daughter. When T.K. realized she was out of cigarettes, she asked her husband for the car keys so that she could drive to a nearby service station and buy more. T.K.’s husband refused to give her the keys because T.K. had been drinking, and T.K. left the house and began walking to the service station. T.K.’s husband followed her out of the house and for some distance, trying to convince her to return. T.K. continued walking, and her husband returned to the house. T.K. walked approximately four blocks to the service station and purchased cigarettes.
As T.K. was walking back home, she saw a silver car drive past her, stop, turn around, and then drive back to her. The driver and sole occupant of the vehicle asked her if she wanted a ride. T.K. responded affirmatively and got into the car. The man said Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 2 of 14 his name was Troy, that he was twenty-six years old, and that he worked in construction. T.K. and the man drove around and talked for a while, smoking and drinking from a half-pint bottle of whiskey T.K. had taken from her home. When they ran out of whiskey, the man drove to a nearby house, which he told T.K. belonged to his employer, to get some beer. T.K. waited in the car while the man entered the house and emerged with a six-pack of beer. He then drove T.K. to a park and stopped the vehicle, where they continued to smoke, drink, and talk.
At some point, T.K. became tired and wanted to go home. When T.K. turned to ask the man to take her home, she saw that he had pulled his penis out of his pants and was masturbating. T.K. immediately demanded to be taken home, and the man stated that he wanted to have sex. T.K. said no and again asked to be taken home. The man then reached across T.K. and pulled a semiautomatic handgun out of the glove compartment. The man pressed the muzzle of the gun to the side of T.K.’s head and forced her to remove her clothes. T.K., who was experiencing symptoms of premature menopause including heavy menstrual bleeding, told the man that she was having menstrual problems in hopes that it would discourage him from continuing. In response, the man ordered T.K. to remove her tampon and throw it out of the vehicle. T.K. complied, and then climbed on top of the man and submitted to vaginal intercourse while he continued to hold the gun to her head.
When he finished, the man put the gun back into the glove compartment and got out of the vehicle to urinate. When the man walked out of T.K.’s line of sight, she ran from the vehicle and climbed a fence into the backyard of a nearby house, where she hid behind a picnic table. T.K. watched as the man returned to the vehicle and called her name, and then drove away. T.K. then went to the house and knocked on the door. When the homeowner answered the door, T.K. asked her to call 911
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 3 of 14 because she had been raped. Police responded and an ambulance took T.K. to the hospital.
Id. at *2-4.
[3] T.K. sustained scratches on her hands and bruising on her right lower
extremity, her left wrist, and on her inner thigh on both sides. These injuries
were consistent with climbing over a fence. No traces of seminal material were
found on T.K.’s body or clothing.
[4] T.K.’s case was dormant for approximately four years until DNA analysis was
performed on cigarette butts recovered from the crime scene. One DNA profile
found as a result of that analysis matched an existing DNA profile of an
unknown male from an open rape case in Marion County, case IP06051889
(“case -889”). The DNA results from the cigarette butts were uploaded to a
statewide database and were found to match Thurston’s DNA. These results
were confirmed by obtaining a DNA sample from Thurston, who was in
custody by that time on an unrelated matter.
[5] On March 2, 2011, the State charged Thurston with rape, a Class A felony, and
criminal confinement, a Class B felony. Thurston’s jury trial took place on
February 13 and 14, 2012. The trial court granted Thurston’s motion in limine
precluding the State and its witnesses from referencing Thurston’s previous
convictions, pending charges under investigation, or any non-Ashton criminal
offenses not yet reduced to conviction. Appellant’s Trial Appendix, Volume I
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 4 of 14 at 56. The trial court’s preliminary instructions included the following in
relevant part:
INSTRUCTION NUMBER 1
***
You should focus your attention on the court proceedings and the evidence, and reach a verdict based upon what you hear and see in this court.
INSTRUCTION NUMBER 14
A defendant must not be convicted on suspicion or speculation.
INSTRUCTION NUMBER 17
. . . You must put your questions in writing. I will review them with the attorneys, and I will determine whether your questions are permitted by law. If a question is permitted, I will ask it of the witness. If it is not permitted, you may not speculate as to why it was not asked, or what the answer may have been.
Id. at 62, 77, 80.
[6] Shelly Crispin, a serologist and DNA analyst with the Indianapolis Marion
County Forensic Services Agency (“IMCFSA”), testified for the State regarding
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 5 of 14 the DNA testing done in this case. During Crispin’s testimony, the trial court
admitted State’s Exhibit 16, which was a report detailing the results of the DNA
testing done on the cigarette butts, one of which was labeled “Item 003.001.”
The report provided the following conclusion regarding that Item:
The DNA profile from item(s) 003.001 is a mixture with major and minor DNA contributors. The source of the partial major contributor of DNA is an unknown male. The partial DNA profile of the minor contributor is inconclusive.
The partial DNA profile form the major contributor of item(s) 003.001 was entered into the IMCFSA DNA Database and was found to be consistent with an unknown partial male profile from the sperm fraction of item(s) 3.5.1 from [case -889]. The partial DNA profile from the major contributor of item(s) 003.001 was entered into the Indiana DNA Database and is being maintained on file for future searches.
Exhibit 16, Trial Exhibits, Confidential Volume at 249. Thurston’s defense
counsel did not object to the admission of Exhibit 16, and the exhibit was
published to the jury. Crispin did not reference case -889 in her testimony.
[7] After Thurston’s counsel cross-examined Crispin, the jury submitted questions
to Crispin, two of which directly concerned the reference in Exhibit 16 to case
-889. The jury inquired, “What is [case -889]?” and
Is it fair to say that since the DNA from item 003.001 matched Ricky Thurston’s profile, the partial male profile from the sperm fraction of item(s) 3.5.1 from [case -889] (referenced in paragraph 2 of conclusions [in] state’s exhibit 16) is also that of Ricky Thurston?
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 6 of 14 Exhibits B, C, Post-conviction Relief Exhibits, Volume I.1 A juror also asked,
“How does a person get into the State database?” Exhibit B, PCR Exs., Vol. I.
It was upon receipt of these jury questions that defense counsel first became
aware of the reference to case -889 contained in Exhibit 16. Defense counsel
argued to the trial court that the above-referenced questions should not be asked
because any reference to the DNA profile in case -889 was irrelevant since it
was uncontested that Thurston’s DNA matched the DNA profile found in this
case. The trial court did not ask Crispin the jury’s questions regarding case -889
or the question pertaining to the database, and it disallowed another question
relating to T.K.’s clothing. Defense counsel did not seek any admonishment to
the jury regarding the questions relating to case -889.
[8] Detective Richard Burkhardt testified after Crispin. Thurston’s videotaped
statement taken in 2011 was admitted into evidence during Burkhardt’s
testimony. Thurston denied ever having been at the park, and he denied
recognizing T.K. when shown a photograph of her taken shortly after the
offenses. At the close of Burkhardt’s direct testimony, a conversation took
place outside the presence of the jury regarding which exhibits would be sent
with the jury into deliberations. Defense counsel argued that the jury should
not have Exhibit 16 during deliberations because it contained the reference to
case -889. The State argued that the exhibit had already been admitted into
evidence without objection and that it was relevant to explain the DNA results
1 The individual post-conviction relief hearing exhibits are not paginated.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 7 of 14 in this matter. The trial court ruled that the jury could have reached a number
of conclusions regarding the reference to case -889 contained in Exhibit 16 and
that the reference was not so overwhelmingly explicitly related to the other
pending rape case that it necessitated the exclusion of the exhibit from
deliberations. Defense counsel moved for a mistrial based upon his own
ineffectiveness in failing to notice and address the reference to case -889 in
Exhibit 16. The trial court denied the motion.
[9] Prior to deliberations, the trial court reissued its preliminary instructions,
including Instructions 1, 14, and 17. The trial court’s Final Instruction Number
27 provided that “Your verdict should be based on the law and the facts as you
find them. It should not be based on sympathy or bias.” Appellant’s Trial
App., Vol. I at 90. During deliberations, the jury asked the trial court the
following question:
We feel that the jury instructions under 6 and 14 give contradictory instructions in this case. This perceived contradiction is leading to an impasse in our deliberation. Do you have any advice in how to overcome the impasse?
Trial Transcript, Volume II at 443. Instruction Number 6 pertained to the
presumption of innocence and the fact that Thurston was not required to
present any evidence to prove or explain anything. Appellant’s Trial App., Vol.
I at 69. Instruction Number 14 pertained to the State’s burden of proof and
provided clarification regarding reasonable doubt. Id. at 77. The trial court
replied to the question by informing the jury that the instructions were pattern
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 8 of 14 instructions that should be reread along with all the instructions and that the
jury should seek a verdict based upon its collective memory of the evidence.
The jury found Thurston guilty of rape and criminal confinement, and the trial
court subsequently found that Thurston was an habitual offender.
[10] After his convictions were affirmed on direct appeal, Thurston sought post-
conviction relief alleging that his trial counsel had been ineffective for failing to
note the reference to case -889 in Exhibit 16, failing to prevent its admission
into evidence at trial, and for failing to mitigate the damage caused by its
admission. In an affidavit admitted into evidence at the hearing on Thurston’s
petition for post-conviction relief, defense counsel averred that it was not a
tactical decision on his part to allow the jury to see the reference to case -889,
nor to forego an objection to Exhibit 16, nor to forego an admonishment to the
jury regarding the reference to case-889. Exhibit D, PCR Exs., Vol. I. The
post-conviction court denied Thurston’s petition for post-conviction relief,
concluding that Thurston had not been prejudiced by his counsel’s performance
because the reference to case -889 was isolated and because evidence
corroborated T.K.’s version of events. Appendix to Brief of Petitioner-
Appellant, Volume Two at 131-32. The post-conviction court found that
“[b]eyond mere speculation, there is no basis to find that the single isolated
reference to the case number affected the jury’s deliberations in any way.” Id.
at 132. This appeal ensued.
Discussion and Decision Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 9 of 14 I. Standard of Review [11] A petitioner seeking post-conviction relief has the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). An appeal following the denial of post-conviction relief is an appeal
from a negative judgment, which may be reversed only if “the evidence as a
whole leads unerringly and unmistakably to a decision opposite that reached by
the post-conviction court.” Collins v. State, 14 N.E.3d 80, 83 (Ind. Ct. App.
2014). “We defer to the post-conviction court’s factual findings, unless they are
clearly erroneous.” Id.
II. Ineffective Assistance of Counsel [12] It is well-established that the right to counsel provided in the Sixth Amendment
guarantees the right to the effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). In order to establish a claim of
ineffective assistance of counsel, a defendant must show (1) that counsel’s
performance was deficient such that it fell below an objective standard of
reasonableness based on prevailing professional norms, and (2) that the
defendant was prejudiced by his counsel’s deficient performance. Id. at 687.
[13] Both prongs of the Strickland test need not be addressed if a defendant has not
met his burden of proof as to one prong. See id. at 697 (“If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice
. . . that course should be followed.”). A defendant is sufficiently prejudiced if,
but for his counsel’s errors, there is a reasonable probability that the result of the
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 10 of 14 proceeding would have been different. Id. at 694. “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id.
[14] Here, we conclude that we need not address the quality of the representation
provided by Thurston’s trial counsel because we cannot conclude that the
evidence is unerringly and unmistakably contrary to the post-conviction court’s
conclusion that Thurston was not prejudiced by his counsel’s alleged errors.
Thurston argues that his credibility before the jury was irreparably harmed by
the reference to case -889 in Exhibit 16 because the jury “was unlikely to believe
his consent argument after they learned he was a suspect in another case where
his DNA matched a ‘sperm fraction[.]’” Brief of Petitioner-Appellant at 30.
The single reference at issue here is to “an unknown partial male profile from
the sperm fraction of item(s) 3.5.1 from [case -889].” Trial Exs., Confidential
Vol. at 249.
[15] We acknowledge that a reference to a sperm fraction has the potential to be
more problematic in a rape case than it might in a case where another type of
offense, such as a property or financial crime, is alleged. However, in this case,
the nature of a “sperm fraction” or how Thurston’s sperm fraction may have
been obtained by the State was not elaborated upon or explained to the jury.
There was no evidence before the jury as to the nature of case -889 or
Thurston’s role in that case, let alone that he was a suspect. As such, while the
reference to case -889 may have permitted an inference of prior misconduct, it
was too vague as to the nature of any prior criminal activity to support the
forbidden inference that Thurston must have raped T.K. because he had been
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 11 of 14 accused of raping another. See Hinesley v. State, 999 N.E.2d 975, 986 (Ind. Ct.
App. 2013) (noting the difference between evidence which creates a mere
inference of prior misconduct and evidence that is prohibited by Indiana
Evidence Rule 404(b)), trans. denied.
[16] The quality and quantity of the reference at issue here is what distinguishes this
case from Thompson v. State, 15 N.E.3d 1097 (Ind. Ct. App. 2014), cited by
Thurston in support of his claim of prejudice. See Br. of Petitioner-Appellant at
26-27. In Thompson, the investigating detective testified that he linked
Thompson to the victim’s rape because Thompson was also a suspect in
another sexual assault, and the detective testified at length about the similarities
in the two cases. Thompson, 15 N.E.3d at 1101. Such direct and detailed
evidence regarding another sexual assault case in which the defendant had been
identified as a suspect is a far cry from the isolated and ambiguous reference at
issue here.
[17] Thurston’s claim of prejudice is also undermined by the trial court’s instructions
to the jury. The trial court’s preliminary instructions provided that the jury
must base its verdict on the evidence it received during trial and that it could
not convict Thurston based upon speculation. Although the jury asked
questions about the reference to case -889 contained in Exhibit 16, the trial
court did not pose those questions to Crispin, and the jury had been instructed
that it was not to speculate why any of its questions had gone unasked or what
the answers to its questions might have been. The jury was reminded of these
directives as part of the trial court’s final instructions, and the trial court further
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 12 of 14 instructed the jury to base its verdict on the facts and the law, not on sympathy
or bias. A jury is presumed to follow a trial court’s instructions. Carpenter v.
State, 15 N.E.3d 1075, 1078 (Ind. Ct. App. 2014), trans. denied. Thurston’s
speculation as to what the jury could have concluded from the reference to case
-889 and his attempts to draw conclusions from the jury’s impasse question, see
Br. of Petitioner-Appellant at 23-26, do not overcome the presumption that the
jury followed the trial court’s instructions to base its verdict only on the
evidence presented at trial and not upon speculation about its unanswered
questions.
[18] Thurston contends that the reference to case -889 must have prejudiced him
sufficiently to undermine confidence in the outcome of his trial because this
case rested purely upon the jury’s credibility assessments of him and T.K. See
Br. of Petitioner-Appellant at 24. We disagree. T.K.’s version of events was
not entirely without corroboration. T.K. sustained documented injuries
climbing over a fence fleeing from Thurston, which was inconsistent with
Thurston’s theory of the case that T.K. consented to having sex with him. In
addition, the jury heard Thurston’s initial claim to investigators that he had
never been to the park where his DNA was recovered, and it heard his initial
claim not to recognize T.K., a woman with whom his counsel argued Thurston
had consensual sex. Although this evidence is not overwhelming, neither was
the reference at issue here. Given the vagueness of the isolated reference at
issue, the trial court’s instructions to the jury, and the other evidence presented
at trial, our confidence in the jury’s verdict is not undermined. The post-
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 13 of 14 conviction court’s conclusion that Thurston was not prejudiced by his counsel’s
performance was not clearly erroneous. Collins, 14 N.E.3d at 83.
Conclusion [19] Concluding that Thurston was not denied the effective assistance of counsel
and that the post-conviction court’s denial of relief was proper, we affirm.
[20] Affirmed.
Najam, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018 Page 14 of 14