Jamel Douglas Gilbert v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
Aug 28 2013, 5:42 am
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:
JAMEL DOUGLAS GILBERT GREGORY F. ZOELLER
Carlisle, Indiana Attorney General of Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMEL DOUGLAS GILBERT, )
)
Appellant-Petitioner, )
)
vs. ) No. 45A03-1201-PC-7
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Diana Ross Boswell, Judge
Cause No. 45G03-0906-PC-3
August 28, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Jamel Douglas Gilbert, pro se, appeals the post-conviction court’s denial of his
petition for post-conviction relief. He contends that the post-conviction court erred in
holding that he did not receive ineffective assistance of trial counsel and that he waived
the rest of the claims he asserted for failure to make a cogent argument. Finding that
Gilbert did not receive ineffective assistance of trial counsel and he failed to meet the
burden of establishing grounds for relief as to his additional claims, we affirm.
Facts and Procedural History
The facts underlying Gilbert’s convictions were adopted from this Court’s
memorandum decision on direct appeal:
On October 9, 2004, Demeka Smith invited several individuals to her
birthday party located on Fourth and Tyler Street in Gary, Indiana. Invitees
James Baker (“Baker”) and Jewaun McFerson (“McFerson”) arrived at the
party at “10:00 [p.m.] or a little after.” Shortly after the party began, a fight
erupted directly outside the house, and the party ended. Baker and
McFerson left the party in Baker’s vehicle and proceeded to Baker’s
residence located on East Seventh Avenue. As Baker was driving away,
McFerson, the front seat passenger in Baker’s vehicle, noticed that a white
four-door vehicle with tinted windows and rims was following directly
behind them. Baker and McFerson arrived in front of Baker’s residence
and got out of the car, but Baker reentered the vehicle to close his sunroof.
The white four-door vehicle that had been following them pulled up and
stopped “a little bit past [Baker’s] driveway.” An individual exited the rear
passenger-side of the white vehicle and walked toward Baker; three other
individuals remained inside the vehicle. McFerson observed that the man,
who had exited the rear passenger-side, wore a red hooded sweatshirt and
he commenced to fire five or six shots in rapid succession at Baker.
The police were called, and McFerson gave the officers a description of the
vehicle. The description of the vehicle was dispatched. Officer Donald
Evans (“Officer Evans”) attempted to respond to the shooting near Seventh
and Ohio Street; but, as he approached Tennessee and Eighth Street, he
observed two red hooded sweatshirts lying in the middle of the street.
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Officer Evans stopped and maintained the area until the crime scene
detectives arrived. The crime scene detectives collected the two red hooded
sweatshirts for evidence. Shortly thereafter, Officer John Faulkner
(“Officer Faulkner”) stopped a vehicle matching the suspect vehicle’s
description. Officer Willie Oliver (“Officer Oliver”) assisted with the stop.
Officer Oliver testified that he pulled four individuals from the white four-
door Dodge Dynasty in the following order: the driver, Paris [Albert]; the
left rear passenger, Jackie Hicks; the right rear passenger, Gilbert; and the
front seat passenger, Carlton Crosslin. That same night, McFerson
positively identified the vehicle as the vehicle that was at the scene of the
shooting. The following day, McFerson identified Gilbert in a photo array
as the person who shot and killed Baker.
Gilbert v. State, No. 45A05-0610-CR-609 (Ind. Ct. App. Sept. 7, 2007) (citations
omitted). On appeal, Gilbert argued that the trial court abused its discretion when it
admitted certain DNA evidence and did not admit evidence of a prior unrelated shooting,
and this Court affirmed. Id.
Gilbert then filed a post-conviction relief petition, alleging ineffective assistance
of both trial and appellate counsel. Appellant’s App. p. 17-18. Gilbert argued that his
trial and appellate counsel were ineffective for multiple reasons. However, in his
petition, Gilbert fully addressed only one claim: that his trial counsel was ineffective for
not requesting a hearing concerning whether an alternate juror may have overheard
Gilbert’s mother say that “They might find Jamel guilty.” Id. at 57-58. After a hearing,
the post-conviction court found that the rest of Gilbert’s claims were waived for failure to
develop a cogent argument. The post-conviction court also found that Gilbert’s trial
counsel’s performance did not fall below professional norms and that Gilbert was not
prejudiced by his trial counsel’s actions.
The post-conviction court denied Gilbert’s petition for post-conviction relief.
Gilbert, pro se, now appeals.
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Discussion and Decision
The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of
post-conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Id. On review, we will not reverse the judgment unless the evidence
as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. The post-conviction court in this case entered findings of fact
and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). “A post-
conviction court’s findings and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction that a mistake has been
made.” Id. The post-conviction court is the sole judge of the weight of the evidence and
the credibility of witnesses. Id. We accept findings of fact unless clearly erroneous, but
we accord no deference to conclusions of law. Id.
Gilbert contends that the post-conviction court erred in finding that he waived
numerous claims for failure to present a cogent argument and that he received effective
assistance of trial counsel.
I. Waiver of Claims
Gilbert contends that the post-conviction court erred in determining that he waived
many of his claims for failure to present a cogent argument. We find that Gilbert’s claims
were not waived, but rather that Gilbert failed to meet his burden of establishing grounds
for relief on those claims.
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In a post-conviction hearing, “[t]he petitioner has the burden of establishing his
grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction Rule 1(5).
In his post-conviction petition, Gilbert alleged that his trial counsel was ineffective for: (1)
not requesting a hearing concerning whether an alternate juror may have heard his mother
comment “they might find Jamel guilty”; (2) failing to present evidence that threats by law
enforcement prevented a witness from testifying that Gilbert was not the shooter; (3)
failing to suppress DNA evidence; and (4) failing to object to the alternate juror being in
the jury room. He also alleged that his appellate counsel was ineffective for not arguing
that the DNA evidence was inadmissible. Appellant’s App. p. 17-18.
At the post-conviction hearing, Gilbert offered his own testimony along with the
testimony of his appellate counsel, his mother, and his sister in an attempt to substantiate
his claims.1 Gilbert’s appellate counsel testified that he did challenge the qualifications of
the expert who testified about the DNA evidence. Tr. p. 7-8. Gilbert’s mother and sister
both testified that Gilbert’s mother did make the comment that “they might find Jamel
guilty,” but neither could testify that the alternate juror actually heard the comment. Id. at
30-31, 36. Finally, Gilbert testified that his friend told him that he was threatened by a
police officer to testify that Gilbert was the murderer. Id. at 22. However, Gilbert did not
actually hear the conversation at issue. Id. at 25.
In his proposed findings of fact and conclusions of law following the hearing,
Gilbert only fully addressed the one claim concerning the comment made by his mother
by providing legal argument and citation to authority. Id. at 39-43. Therefore, there was
1
Gilbert’s trial counsel did not testify because he passed away on September 13, 2010.
Appellant’s App. p. 56.
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only one “fully briefed and argued” claim presented for review. Id. at 58. Since Gilbert
failed to present sufficient evidence or legal authority on all but one of his post-conviction
claims, while we cannot say that the post-conviction court should have waived the claims,
we do hold that Gilbert failed to meet his burden of establishing grounds for relief by a
preponderance of the evidence on those claims. The denial of post-conviction relief was
therefore appropriate.
II. Ineffective 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 the petitioner was
prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687
(1984). Failure to satisfy either prong will cause the claim to fail. French v. State, 778
N.E.2d 816, 824 (Ind. 2002). Counsel’s performance is deficient if it falls below an
objective standard of reasonableness based on prevailing professional norms. Id. Counsel
is afforded considerable discretion in choosing strategy and tactics, and we will accord
those decisions deference. Timberlake, 753 N.E.2d at 603. A strong presumption arises
that counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Id. To meet the appropriate test for
prejudice, the petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
Id. A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).
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In his one claim that survived the post-conviction hearing, Gilbert argues that his
trial counsel was ineffective for not requesting a hearing concerning whether an alternate
juror may have overheard Gilbert’s mother say at church one night during the trial that
“They might find Jamel guilty.” The record shows that Gilbert’s counsel was aware of
the statement, but determined that it would not have an effect on the impartiality of the
jury and therefore did not request a hearing on the issue. Appellant’s App. p. 60. Gilbert
contends that this was ineffective assistance. We disagree.
There is a strong presumption that counsel gave adequate assistance and exercised
reasonable professional judgment in making all significant decisions. Timberlake, 753
N.E.2d at 603. Additionally, we afford counsel substantial discretion in choosing
strategy and tactics, and we will accord deference to those decisions. Id. Deciding not to
make an issue of the statement potentially overheard by an alternate juror was a strategic
decision made by Gilbert’s counsel, and Gilbert has provided nothing in the record to
suggest that this was unreasonable. We must defer to the judgment of Gilbert’s counsel
and we cannot say that the post-conviction court erred in finding that Gilbert’s counsel
did not provide a deficient performance.
Additionally, Gilbert has failed to show that he was prejudiced in any way.
Gilbert presented no testimony that the alternate juror actually heard the comment or that
he communicated the comment to the other jurors. He only presented the testimony of
his mother and sister, and both were unsure if the comment was even overheard. Tr. p.
30, 37-38. We therefore hold that the post-conviction court did not err in finding that it
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was not ineffective assistance for Gilbert’s trial counsel to not request a hearing
concerning whether the alternate juror overheard Gilbert’s mother’s statement.
Affirmed.
BAKER, J., and FRIEDLANDER, J., concur.
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