Present: All the Justices
PARADICE CARNELL JACKSON, II
OPINION BY
v. Record No. 042130 JUSTICE LAWRENCE L. KOONTZ, JR.
September 16, 2005
GERALD K. WASHINGTON, WARDEN,
BUCKINGHAM CORRECTIONAL CENTER
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
This appeal arises from a judgment of the Circuit Court of
Stafford County dismissing a petition for a writ of habeas
corpus filed by Paradice Carnell Jackson, II. The sole issue we
consider is whether the circuit court erred in denying Jackson’s
claim in the petition that his trial counsel rendered
ineffective assistance of counsel by failing to object to
Jackson being tried before a jury while wearing a jail-issued
“jumpsuit.”
BACKGROUND
On April 3, 2000, Jackson was indicted by the grand jury of
Stafford County on two counts of statutory burglary, Code
§ 18.2-91, and two counts of grand larceny, Code § 18.2-95,
arising from the breaking and entering on two occasions in March
2000 of a home in Stafford County owned by Darlene A. Kenyon and
previously occupied by her friend, Cheryl England. Personal
property belonging to each woman had been taken during the
burglaries. The larceny indictments were subsequently amended
to charge Jackson with the felony offenses of petit larceny,
third or subsequent offense under Code § 18.2-96.
While he was being held in jail awaiting trial, jail
personnel misplaced Jackson’s civilian clothes. Jackson
unsuccessfully attempted to utilize the administrative
procedures of the jail to have his clothes returned to him or to
be compensated for their loss prior to his trial. Jackson was
advised by the jail superintendent that the staff was attempting
to locate his clothes and that upon his “release or transfer” he
would be compensated for their loss, if still missing at that
time.
Jackson also discussed with his court-appointed counsel his
desire to obtain civilian clothes to wear during his trial and,
in that regard, advised counsel to contact his mother. Counsel
“made several attempts to contact [Jackson’s] mother, but never
received any response from her.” Jackson was ultimately tried
on the indictments before a jury in the Circuit Court of
Stafford County (the trial court) beginning on April 12, 2001.
The record of Jackson’s jury trial does not contain a
description of the jail-issued jumpsuit that Jackson wore
throughout his trial. It is not disputed, however, that the
jumpsuit was readily identifiable as jail clothing.
Additionally, it is undisputed that Jackson’s counsel did not
object to Jackson being required to appear before the jury in
2
the jumpsuit, request a cautionary instruction from the trial
court, or seek a continuance of the trial so that Jackson could
obtain civilian clothes to wear at trial.
During the trial, the Commonwealth presented a strong
evidentiary case, although largely circumstantial, in support of
Jackson’s guilt of the charges asserted in the indictments. For
purposes of our resolution of this appeal, a detailed summary of
that evidence is unnecessary. Jackson’s credibility as a
witness in his own defense, however, ultimately became a
critical issue to be considered by the jury.
The Commonwealth’s evidence established that Kenyon, the
owner of the home in question, lived in Alexandria and visited
her home in Stafford County “approximately every two weeks.”
Until early in March 2000, she had permitted England to occupy
the home. Kenyon’s home was burglarized on or about March 9 and
again on March 26. During this time, England was in the final
stage of removing her personal property from the home to another
residence where she then actually resided. Various items of
personal property, including televisions, stereos, an answering
machine, and a vacuum cleaner, belonging to Kenyon or England
were taken during the two burglaries.
On the night of the March 26 burglary, neighbors observed
“lights blink on” in Kenyon’s home and then a vehicle leaving
the driveway of the home without its lights activated.
3
Suspecting a burglary had taken place, the neighbors promptly
contacted the local sheriff’s department and provided a
description of the vehicle and its license tag number. A deputy
sheriff en route to investigate the possible burglary
encountered the vehicle described by the neighbors. The deputy
stopped the vehicle and questioned the three male occupants,
including Jackson, who occupied the back seat. Property in the
vehicle, subsequently identified as having been taken from
Kenyon’s home, was impounded. The three occupants of the
vehicle were not arrested at that time.
In the course of investigating the burglaries, a sheriff’s
detective interviewed Jackson and subsequently found more
property that had been taken from the home in his possession.
It was further determined that earlier Jackson had pawned a
television set that had been taken from the home.
Jackson testified at length at his trial, asserting his
innocence of the charges against him. Essentially, he
maintained that until the vehicle in which he was a passenger
was stopped by the deputy sheriff on March 26, he was unaware
that the burglaries had occurred and that the personal property
in question had been stolen. He further maintained that he had
only been to Kenyon’s home on March 26 and at that time he did
not enter the home although he thought that because it was
unoccupied the property had been “abandoned.” Additionally,
4
Jackson maintained that he had mistakenly thought that the
property he had pawned belonged to a friend who had asked him to
sell it. In sum, Jackson asked the jury to believe that he was
an innocent bystander to the crimes committed by his two
companions.1
The jury returned verdicts convicting Jackson of all the
charges against him and recommended prison sentences of seven
years for each of the burglary convictions and three years for
each larceny conviction. Prior to his sentencing hearing,
Jackson filed a pro se motion to set aside the jury’s verdicts
in which he argued, inter alia, that his counsel had been
ineffective in “fail[ing] to object to [Jackson’s] being forced
to wear a jail issue jump suit before the jury.” The trial
court denied this motion and imposed sentence in accord with the
jury’s verdicts.
Jackson challenged his convictions on direct appeal to the
Court of Appeals, asserting, inter alia, that in the trial court
he had erroneously been compelled to appear before the jury in
the jail-issued jumpsuit. In an unpublished opinion, the Court
of Appeals affirmed Jackson’s convictions, holding that the
1
On brief, we are told by Jackson’s habeas counsel that
Jackson’s companions had been convicted of these crimes prior to
Jackson’s trial. The Commonwealth did not call either of them
as a witness at Jackson’s trial.
5
issue whether Jackson had been improperly required to appear
before the jury in jail clothes was barred by his counsel’s
failure to make an objection in the trial court, Rule 5A:18.
Jackson v. Commonwealth, Record No.1675-01-4, slip op. at 2
(October 29, 2002). Jackson’s petition for appeal to this Court
was refused. Jackson v. Commonwealth, Record No. 022798 (May
28, 2003).
On October 14, 2003, Jackson filed a pro se petition for a
writ of habeas corpus in the Circuit Court of Stafford County
(the circuit court) against Gerald K. Washington, Warden of the
Buckingham Correctional Center. In his petition Jackson
asserted that his trial counsel had been ineffective in failing
to object to his “being tried in front of a jury in a prison
‘jumpsuit’ after the jail lost my civilian clothes.”
The Commonwealth, on behalf of the warden, filed a motion
to dismiss Jackson’s petition on the ground that Jackson’s trial
counsel was not “constitutionally obligated to object” to the
fact that Jackson was required to wear jail clothes during his
jury trial. The Commonwealth further contended that even if
counsel’s performance had been deficient, Jackson had failed to
demonstrate any prejudice arising from counsel’s deficient
performance because there was no “reasonable probability of a
different result at trial” had Jackson appeared in civilian
clothes. In an affidavit from Jackson’s trial counsel obtained
6
by the Commonwealth in support of its motion to dismiss, counsel
conceded that Jackson had expressed a desire not to appear
before the jury in jail clothes, but maintained that at the time
of trial Jackson “was most anxious to have these matters
resolved quickly.” Although counsel opined that Jackson’s
“appearance in a jail jumpsuit was not prejudicial nor did it
. . . impact the jury’s impression of [him],” she did not
indicate that her failure to object to the trial proceeding
under those circumstances was based upon a trial strategy.
The circuit court reviewed Jackson’s petition on the record
without conducting a hearing. As relevant to this appeal, in an
order dated June 18, 2004, the circuit court dismissed Jackson’s
petition, finding that “trial counsel reasonably chose not to
object to Jackson being tried in a [jail] jumpsuit” as a
“tactical decision” which did not “prejudice Jackson within the
meaning of Strickland [v. Washington, 466 U.S. 668 (1984)].” We
awarded Jackson this appeal.
DISCUSSION
Beyond question, an accused, consistent with the
constitutional right to a fair trial, may not be compelled to
stand trial before a jury wearing clearly identifiable jail or
prison clothes. Estelle v. Williams, 425 U.S. 501, 504-05
(1976). This is so because being compelled to appear before a
jury in clearly identifiable jail or prison clothes may
7
undermine the fairness of the fact-finding process and, thus,
violate the accused’s fundamental right to a presumption of
innocence while furthering no essential state interest. Id.
Additionally, because “compelling the accused to stand trial in
jail garb operates usually against only those who cannot post
bail prior to trial [it is] repugnant to the concept of equal
justice embodied in the Fourteenth Amendment.” Id. at 505-06.
Whether an accused’s due process rights have been violated
turns on the determination whether his being made to appear
before the jury in jail or prison clothes is the result of
actual state compulsion, a determination the reviewing court
makes on a case-by-case basis. Id. at 512-13. In the absence
of a per se rule, it has been held in one case that when the
accused’s civilian clothes are lost while in the possession of
the state, and he is not afforded the opportunity to obtain
replacement clothes, the state effectively compels the accused
to stand trial in prison clothes. Felts v. Estelle, 875 F.2d
785, 786 (9th Cir. 1989).
When the issue is raised in a direct appeal, however,
courts applying Estelle v. Williams have generally held that if
the accused did not formally object to standing trial in jail or
prison clothes or otherwise make known to the trial court that
he desired to wear civilian clothes during his trial, he was not
compelled to stand trial in jail clothes. See, e.g., Smith v.
8
United States, 182 F.3d 1023, 1025 (8th Cir. 1999); United
States v. Martin, 964 F.2d 714, 719 (7th Cir. 1992). In other
words, “[b]ecause the ‘particular evil proscribed’ is
compulsion,” a defendant must properly object to being compelled
to appear before the jury in prison clothes, and the failure to
do so in a timely fashion will constitute a waiver of the issue
for the purposes of trial and direct appeal. United States v.
Hurtado, 47 F.3d 577, 581 (2d Cir. 1995) (citing Estelle v.
Williams, 425 U.S. at 507-10); see also Martin, 964 F.2d at 719.
The issue presented in this habeas proceeding is not
whether Jackson waived an objection to being compelled to stand
trial before the jury in jail clothes. Rather, the issue is
whether the representation of Jackson’s counsel “fell below an
objective standard of reasonableness” and that counsel’s errors
were “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment,” and,
if so, whether that “deficient performance prejudiced the
defense,” meaning that “counsel’s errors were so serious as to
deprive the defendant of a fair trial.” Strickland, 466 U.S. at
687-88. Thus, the fact that counsel’s failure to object to
Jackson’s appearing before the jury in jail clothes acted as a
waiver of that issue on direct appeal does not preclude this
habeas appeal.
9
In Estelle v. Williams, the issue whether the failure of
the accused’s counsel to object to the accused standing trial in
jail clothes fell below an objective standard of reasonableness
for effective representation was not at issue. But see 425 U.S.
at 534-35 (Brennan, J., dissenting) (noting that issue of
ineffective assistance of counsel was raised, but not addressed,
by the lower courts). Nonetheless, the Supreme Court opined
that an accused and his counsel might affirmatively choose to
have the accused appear in jail clothes as a tactical decision
in the hope of eliciting sympathy from the jury. Under such
circumstances, the resulting waiver of the accused’s right not
to be required to stand trial in jail clothes would be
objectively reasonable. Estelle v. Williams, 425 U.S. at 508.
Claims for habeas relief also have been denied on the basis
that the record reflected an affirmative decision by counsel
and/or the accused to have the accused appear before the jury in
jail clothes. See, e.g., Demurjian v. State, 727 So.2d 324, 327
(Fla. Ct. App. 1999); see also Garcia v. Beto, 452 F.2d 655, 656
(5th Cir. 1971) (pre-Estelle v. Williams decision holding that
counsel’s affirmative decision to have accused appear before
jury in jail clothes was objectively reasonable); State v.
Buttner, 489 So.2d 970, 975 (La. Ct. App. 1986) (denying
ineffective assistance claim on direct appeal based on trial
strategy of having accused appear before jury in jail clothes).
10
However, where the record does not disclose an affirmative
decision for the accused to appear before the jury in jail
clothes as part of a trial strategy, the failure of counsel to
object to that circumstance has been held to fall below the
objective standard for reasonableness for effective legal
representation. See, e.g., Felts, 875 F.2d at 786; Gaito v.
Brierly, 485 F.2d 86, 88-90 & n.3 (3rd Cir. 1973); Lewis v.
State, 864 So.2d 1211, 1212 (Fla. Ct. App. 2004); Ex parte
Clark, 545 S.W.2d 175, 177 (Tex. Crim. App. 1977); see also
Hernandez v. Beto, 443 F.2d 634, 637 (5th Cir. 1971) (pre-
Estelle v. Williams decision rejecting “strategic decision”
argument and awarding habeas relief where record did not support
government’s contention that accused affirmatively refused to
wear civilian clothes).
We find no support in the record of the present case for
the circuit court’s conclusion that Jackson’s counsel
affirmatively chose not to object to Jackson being tried before
the jury in a jail-issued jumpsuit. Counsel’s affidavit merely
states that she perceived that Jackson was “most anxious to have
these matters resolved quickly.” However, counsel was also
aware that Jackson was equally anxious to have civilian clothes
to wear at his trial. Moreover, it is clear that Jackson
intended to testify and that his credibility would be at issue.
Accordingly, we conclude that the decision to permit the trial
11
to go forward without objecting to Jackson being attired in jail
clothes was not the result of a strategic decision reached by
counsel after consultation with her client.
The record in this case affirmatively establishes that jail
personnel misplaced Jackson’s civilian clothes, failed to locate
them, and failed to provide him with the means to obtain
civilian clothes prior to his trial. Those circumstances
coupled with the nominal effort, at best, of his counsel to
obtain civilian clothes for Jackson despite her awareness of his
desire not to stand trial before the jury in jail clothes,
clearly mandate the conclusion that Jackson was unlawfully
compelled to stand trial before the jury in jail clothes. In
light of the well-established law under Estelle v. Williams, its
precursors and its progeny, that an accused has the
constitutional right not to be compelled to stand trial before a
jury in jail clothes such as those worn by Jackson in this case,
it is self-evident that the failure of Jackson’s counsel to
raise an objection at the outset of Jackson’s trial fell below
the objective standard of reasonableness for effective
assistance of counsel as provided by the Sixth Amendment.
Accordingly, we hold that Jackson has satisfied the
“performance” prong of the test under Strickland.
Under Strickland, of course, a finding that counsel’s
representation of a defendant fell below the objective standard
12
of reasonableness, standing alone, is insufficient to warrant
the granting of habeas relief. Rather, “[e]ven if a defendant
shows that particular errors of counsel were unreasonable . . .
the defendant must show that they actually had an adverse effect
on the defense.” Strickland, 466 U.S. at 693; accord Hedrick v.
Warden, 264 Va. 486, 496, 570 S.E.2d 840, 847 (2002); Moore v.
Hinkle, 259 Va. 479, 487, 527 S.E.2d 419, 423 (2000); Murray v.
Griffith, 243 Va. 384, 388, 416 S.E.2d 219, 221 (1992).
Accordingly, we turn now to consider whether under the
particular circumstances of this case Jackson has satisfied the
so-called “prejudice” prong of the test under Strickland.
The Commonwealth contends that the evidence of Jackson’s
guilt was so overwhelming as to overcome any prejudice resulting
from his being compelled to appear before the jury in the jail-
issued jumpsuit. We disagree. The Commonwealth’s case was
based primarily on the circumstantial evidence of Jackson being
in possession of property recently stolen from Kenyon’s home and
his presence at or near that home on one occasion. Standing
alone, this evidence would have been sufficient for the jury to
have reasonably concluded that Jackson unlawfully broke and
entered Kenyon’s home and stole the items of personal property
belonging to Kenyon and England that were subsequently found in
his possession. The Commonwealth’s evidence, however, did not
stand alone. Granting Jackson a presumption of innocence, the
13
jury was required to consider all of the evidence, including
Jackson’s trial testimony that, if accepted as truthful, would
have established an innocent explanation for his presence at
Kenyon’s home and his subsequent possession of the stolen
property. In this context, Jackson’s credibility before the
jury was a critical issue in the necessary determination of his
guilt beyond a reasonable doubt. Indeed, his entire defense
depended upon the jury’s favorable consideration of his
credibility.
We have not previously had occasion to consider the impact
upon a criminal trial of an accused being compelled to stand
trial before a jury in jail or prison clothes.2 That fact alone
suggests the sensitivity and respect by the bench and bar of
this Commonwealth for an accused’s right to a fair trial and,
thus, that the incidence of such an occurrence is rightfully
rare. Nevertheless, we find ample guidance in our resolution of
this case, again from Estelle v. Williams. Our task is not to
independently weigh the evidence presented by the Commonwealth
2
We have, however, recognized that requiring an accused to
appear before a jury in shackles may impermissibly prejudice an
accused’s right to a fair trial. See, e.g., Frye v.
Commonwealth, 231 Va. 370, 381, 345 S.E.2d 267, 276 (1986).
Additionally, the Court of Appeals has addressed the issue of an
accused’s appearance in shackles as affecting the accused’s
presumption of innocence. Martin v. Commonwealth, 11 Va. App.
397, 404, 399 S.E.2d 623, 627 (1990); Miller v. Commonwealth, 7
Va. App. 367, 371, 373 S.E.2d 721, 723 (1988).
14
and Jackson at the trial. We do not attempt to determine
whether Jackson would have been a credible witness if he had not
been compelled to appear before the jury in the jail-issued
jumpsuit. Rather, we evaluate the likely effect of compelling
Jackson to appear before the jury in that attire “based on
reason, principle, and common human experience.” Estelle v.
Williams, 425 U.S. at 504.
It is difficult to conceive of a circumstance more likely
to disadvantage an accused than compelling him to testify in his
own defense to the jury while wearing jail clothes. Reason and
common human experience dictate, at a minimum, that the
accused’s appearance in jail clothes is such a badge of guilt
that it would render an accused’s assertion of innocence less
than fully credible to the jury. Beyond question, in our view,
such an occurrence “is so likely to be a continuing influence
throughout the trial that . . . an unacceptable risk is
presented of impermissible factors coming into play.” Id. at
505. Such an unacceptable risk in the form of denying Jackson a
presumption of innocence is almost palpable under the
circumstances of Jackson’s case.
Thus, under the specific facts of this case, we hold that
counsel’s failure to object to Jackson being compelled to stand
trial before the jury in jail clothes satisfies the prejudice
15
prong of the test under Strickland in that counsel’s failure
prejudiced Jackson’s right to a fair trial.3
CONCLUSION
For these reasons, we hold that the circuit court erred in
dismissing Jackson’s petition for a writ of habeas corpus.
Accordingly, we will reverse the judgment appealed from, set
aside Jackson’s convictions, and remand the case to the circuit
court with directions to issue the writ of habeas corpus and
grant Jackson a new trial on the indictments at issue if the
Commonwealth be so advised.
Reversed and remanded.
JUSTICE KINSER, with whom JUSTICE AGEE joins, dissenting.
To prevail on a claim of ineffective assistance of counsel
in a petition for a writ of habeas corpus, a convicted defendant
must satisfy the two-part test set out in Strickland v.
Washington, 466 U.S. 668, 687 (1984), i.e., “that counsel’s
performance was deficient” and “that the deficient performance
prejudiced the defense.” Id. I conclude that the convicted
defendant in this case, Paradice Carnell Jackson, II, failed to
establish the prejudice prong of the Strickland test. Jackson
3
Because we conclude that Jackson’s right to a fair trial
was unlawfully prejudiced during the guilt-determination phase
of his trial, we need not consider whether that constitutional
right was infringed upon during the sentencing phase of
Jackson’s trial.
16
did not prove “that there is a reasonable probability that, but
for counsel’s [alleged] unprofessional error[], the result of
the proceeding would have been different.” Id. at 694. Thus, I
respectfully dissent.
In deciding a claim of ineffective assistance of counsel,
it is not always necessary to decide “whether counsel’s
performance was deficient before” determining whether a
defendant suffered prejudice as a result of counsel’s alleged
errors. Id. at 697. As the Supreme Court stated in Strickland,
“[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, . . . that course should
be followed.” Id.; see also Yarbrough v. Warden, 269 Va. 184,
197, 609 S.E.2d 30, 38 (2005). Because that is true in this
case, I will address only the prejudice prong of the Strickland
two-part test.
The majority holds that counsel’s failure to object to
Jackson’s being tried before a jury while wearing “jail clothes”
satisfies the prejudice prong of the Strickland test. The
majority reaches that conclusion by “evaluat[ing] the likely
effect of compelling Jackson to appear before the jury in that
attire ‘based on reason, principle, and common human
experience’ ” (quoting Estelle v. Williams, 425 U.S. 501, 504
(1976)). The appropriate test for prejudice, however, is not
the “likely effect” of counsel’s alleged deficient performance
17
but whether “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.”
Strickland, 466 U.S. at 694. This well-established test
enunciated in Strickland is the one I will apply, as this Court
has done on many occasions. See, e.g. Yarbrough, 269 Va. at
196, 609 S.E.2d at 37; Lovitt v. Warden, 266 Va. 216, 249, 585
S.E.2d 801, 820 (2003), cert. denied, 541 U.S. 1006 (2004);
Sheikh v. Buckingham Corr. Ctr., 264 Va. 558, 564, 570 S.E.2d
785, 788 (2002); Williams v. Warden, 254 Va. 16, 23, 487 S.E.2d
194, 198 (1997).
Since Jackson challenges his convictions, “the question,”
in assessing prejudice, “is whether there is a reasonable
probability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt.” Strickland, 466 U.S.
at 695. In answering that question, “a court hearing an
ineffectiveness claim must consider the totality of the evidence
before the judge or jury,” id., and “must ask if the defendant
has met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.” Id.
at 696. The burden of a convicted defendant attacking a
judgment of conviction in a habeas corpus proceeding is to prove
the allegations asserted in the petition by a preponderance of
18
the evidence. Green v. Young, 264 Va. 604, 608, 571 S.E.2d 135,
138 (2002); Curo v. Becker, 254 Va. 486, 489, 493 S.E.2d 368,
369 (1997).
In the case before us, the overwhelming evidence of
Jackson’s guilt demonstrates that there is not a reasonable
probability that, but for his counsel’s failure to object to his
wearing of “jail clothes,” the jury’s verdict would have been
different. The evidence at trial showed that the home of
Darlene A. Kenyon was burglarized on two occasions in March
2000. Pawnshop records containing Jackson’s signature and
physical description established that, on March 8, 2000, he sold
a television to the pawnshop operator. A deputy sheriff later
determined that the television had been stolen from the Kenyon
home.
In the early morning hours of March 9, 2000, another deputy
sheriff, C. W. Reed, attempted to stop a vehicle for traveling
at a rate of speed in excess of the posted speed limit. Deputy
Reed had to pursue the vehicle for approximately ten miles
before it stopped. The driver then fled on foot until he was
apprehended about 100 yards from the vehicle. Jackson was later
identified as the driver. The vehicle was impounded and
subsequently searched pursuant to a search warrant. During the
search, items of personal property were found in the vehicle’s
trunk. Several of those items were identified as having been
19
stolen from the Kenyon home and belonging to either Kenyon or
her friend, Cheryl England. Some of the personal property in
the trunk that did not belong to either woman included a pair of
black gloves, two flashlights, two screwdrivers, and a pair of
pliers, which were obviously tools that could be used in a
burglary.
Continuing, on the evening of March 26, 2000, Michael G.
Hunt, who lived next to the Kenyon residence, saw lights blink
on and off a couple of times in the Kenyon house and then heard
“banging” noises coming from it. Hunt then walked toward the
house with a flashlight and wrote down the license plate number
of a vehicle that was sitting in the Kenyon driveway. As his
wife was calling the police to report what Hunt had observed,
the vehicle backed out of the driveway and proceeded along a
road with its lights off.
About 10 minutes after receiving a police dispatch to be on
the lookout for the vehicle Hunt had seen in the Kenyon
driveway, Deputy David M. Stout, Jr., executed a traffic stop on
that same vehicle. Jackson was sitting in the back seat of the
vehicle next to a “really big” box speaker. Kenyon later
identified that speaker along with another speaker and a vacuum
cleaner, which were both found in the trunk of the vehicle, as
property stolen from her home.
20
The evidence against Jackson does not end here. He also
confessed to the crimes, a fact the majority does not mention.
After the impounded vehicle had been searched and some of the
stolen property recovered, a police detective, John W. Shelton,
III, talked with Jackson and asked him where the remaining
stolen property was located. Jackson responded that “the only
. . . stolen property that he was aware of was the stolen
property that was in he [sic] and [the] other person’s
possession the night they were pulled over and stopped by Deputy
Stout.” During that interview, Jackson changed his version of
the events several times when confronted with inaccuracies in
his statements. He eventually confessed, orally and in a
written statement, to stealing two speakers, a vacuum cleaner,
an answering machine, two televisions, and two video-cassette
recorders. He also admitted to entering the Kenyon home on the
second occasion.∗
At trial, Jackson denied knowing that the television he
sold at the pawnshop and the items found in the two vehicles
were stolen. He also claimed that he did not enter the Kenyon
home on March 26, 2000 but merely sat in a vehicle outside the
∗
Jackson also maintained that he did not know anyone lived
at the Kenyon home and thought it was abandoned. His assertion
that he entered the home through the unlocked front door was not
consistent with the physical evidence showing that the home had
21
house. When asked why he thought he and his companions were at
that particular residence, Jackson responded, “I was just out
trying to clear my head, because I had had an altercation with
the female that I was with at the time.” Finally, he testified
that he gave four different statements to Detective Shelton
“[o]ut of fear.”
Given this evidence of Jackson’s guilt and the nature of
his explanations for why he was in possession of stolen property
and present at the Kenyon house, Jackson’s credibility, contrary
to the majority’s view, was not “a critical issue in the
necessary determination of his guilt beyond a reasonable doubt.”
Considering the totality of the evidence before the jury, I
conclude that Jackson did not carry his burden to show that,
absent his counsel’s alleged error, “the decision reached would
reasonably likely have been different.” Strickland, 466 U.S. at
696; see also, French v. State, 778 N.E.2d 816, 826 (Ind. 2002)
(evidence against the defendant was clear and he was therefore
not prejudiced by appearing in jail clothes); State v. King, 804
So. 2d 57, 61 (La. Ct. App. 2001) (defendant was unable to show
that counsel’s failure to object to his wearing prison clothing
amounted to prejudice where evidence of his guilt was
overwhelming); State v. Kachovee, 2001 Ohio 2382, at *13–14
been broken into. The basement door had a broken window, and
22
(Ohio Ct. App. 2001) (failure of counsel to object to defendant
wearing prison clothing did not meet the prejudice standard in
Strickland where there was ample evidence to support his
conviction); Humbert v. South Carolina, 548 S.E.2d 862, 865-66
(S.C. 2001) (due to the overwhelming evidence against the
defendant, he was not prejudiced under Strickland when counsel
allowed him to appear at trial in a prison jumpsuit).
Likewise, Jackson did not show that there was a reasonable
probability that, but for his counsel’s alleged error, the
result of the sentencing phase of his trial would have been
different. Jackson had an extensive criminal history consisting
of multiple prior felony and misdemeanor convictions. Notably,
Jackson had been found guilty of rape, arson, burglary, petit
larceny, brandishing a firearm and the unauthorized use of a
vehicle. At the time of the commission of the crimes at issue,
Jackson was on a probationary period requiring good behavior.
In sentencing Jackson in accordance with the jury verdict, the
trial court found that the sentence fixed by the jury was not
disproportionate compared to the seriousness of the crimes,
“particularly in light of Mr. Jackson’s criminal history.”
the garage door had a missing panel on the bottom.
23
For the these reasons, I respectfully dissent and would
affirm the judgment of the circuit court dismissing Jackson’s
petition for a writ of habeas corpus.
24