Duane R. Tackett v. State of Indiana (mem. dec.) ( 2018 )

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
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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.
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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
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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.
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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
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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.
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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:
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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.
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[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.
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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.
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