MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 14 2015, 9:01 am
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
Michigan City, Indiana Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Khalid M. Jackson-Bey, October 14, 2015
Appellant-Petitioner, Court of Appeals Case No.
45A03-1311-PC-507
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Natalie Bokota,
Appellee-Respondent. Judge
Trial Court Cause No.
45G04-1106-PC-7
Mathias, Judge.
[1] Kalid Malik Jackson-Bey (“Jackson-Bey”) filed a petition for post-conviction
relief in Lake Superior Court, and the court denied the petition. Jackson-Bey
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appeals and presents six issues for our review, which we consolidate and restate
as: (1) whether the post-conviction court properly concluded that Jackson-Bey
was not denied the effective assistance of trial counsel; and (2) whether the
State presented evidence sufficient to support Jackson-Bey’s convictions.
[2] We affirm.
Facts and Procedural History
[3] The facts underlying Jackson-Bey’s convictions were set forth in our decision
on direct appeal as follows:
On the morning of January 6, 2008, Jorge Molina was outside
his house working on his car when a black man approached him
quickly. The man displayed a gun and said he needed money.
Specifically, he said “if he didn’t get any [money], he would
shoot [Molina] right there.” The man then put the gun straight in
Molina’s face. Molina said he did not have any money on him
because his wallet was inside the house, where his wife and
daughter were sleeping. The man then held his gun on Molina,
pulled on his coat, and led him into the house. Once the man left
the house, Molina called 911. Molina identified the man from a
photo array and at trial as Jackson-Bey.
Before Molina identified Jackson-Bey from the photo array, on
January 8, 2008, Darrel Kilbourne was waiting for the bus
outside his East Chicago HUD apartment when he realized he
forgot something inside. As Kilbourne started to unlock the door
to the apartment building, someone came from behind him and
stuck a gun in his ribs, demanded money, and said, “I will shoot
you.” Kilbourne said he did not have any money and gave him
the change from his pocket.
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Edward Serna, Kilbourne’s roommate, heard a commotion
outside and proceeded to the door. A black man pushed
Kilbourne inside and pointed the gun at Serna’s head. The man
asked Serna where he lived, and Serna responded upstairs. Once
they were inside the apartment, Serna was able to get a good look
at the man’s face. When the man asked for Serna’s money, he
said that he did not have any, so the man asked for Kilbourne’s
money. Still not successful in obtaining any money, the man
“pistol whipped” Serna on the side of his head. The man then
ordered the men to crawl on the floor and put the gun to the side
of Serna’s head. At this point, Kilbourne reached into his pocket
and said that he had some money after all. However, the man
was still upset and threatened to shoot them. Serna begged for his
life. The man then ordered Kilbourne and Serna back downstairs
and out of the building. Unknown to the man, a police car was in
front of the building because someone had called 911.
East Chicago Police Department Officer Hector Rosario was
dispatched to the apartment building for a disturbance call. He
observed a black male exiting the building. When Officer Rosario
summoned the man, he took off running down the alley. Officer
Rosario chased him. He lost sight of the man between some
houses while additional officers drove to the other side of the
block. Eventually, Officer Rosario located the man underneath a
front porch and pulled him out. He also located a handgun
underneath the porch. Before placing the man inside a patrol car
to be transported to the police station, Officer Rosario patted him
down and found a bag of marijuana. Serna saw the man at the
patrol car and knew that the officers had found the right guy.
Serna later went to the police station and identified Jackson-Bey
from a photo array.
Jackson-Bey v. State, No. 45A04-0911-CR-646, 2010 WL 2885966, slip op. at 2-4
(Ind. Ct. App. July 23, 2010), trans. denied.
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[4] As a result, the State charged Jackson-Bey as follows: with regard to the
January 6 incident involving Molina, Class B felony robbery and Class B felony
criminal confinement; and with regard to the January 8 incident involving
Kilbourne and Serna, Class B felony robbery, two counts of Class B felony
criminal confinement, Class C felony battery, Class A misdemeanor resisting
law enforcement, and Class A misdemeanor possession of marijuana. See id.,
slip op. at 4.
[5] The trial court bifurcated the charges based on the January 6 and 8 incidents.
With regard to the January 6 incident, one jury found Jackson-Bey guilty of
criminal confinement but not guilty of robbery. A separate jury found Jackson-
Bey guilty as charged with regard to the January 8 incident.
[6] In sentencing Jackson-Bey, the trial court noted that Jackson-Bey had been
convicted of a November 2007 murder and robbery in Cause No. 45G04-0810-
MR-8 (“Cause No. MR-8”), after he was in custody for the January 2008
crimes in this case. In Cause No. MR-8, Jackson-Bey was sentenced to an
aggregate term of sixty-five years. See Jackson-Bey v. State, No. 45A03-0908-CR-
365, 2010 WL 909092 (Ind. Ct. App. Mar. 15, 2010). The trial court in the
current case sentenced Jackson-Bey to ten years on each of his four Class B
felonies, four years on his Class C felony, and one year on each of his two Class
A misdemeanors. The court ordered Jackson-Bey’s ten-year sentence for the
robbery of Kilbourne to be served consecutive to his sixty-five-year sentence for
murder and robbery in Cause No. MR-8. The court ordered Jackson-Bey’s one-
year sentences for the Class A misdemeanors to be served concurrently but the
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remainder of his sentences to be served consecutively, for an aggregate term of
forty-four years in this case.
[7] On direct appeal, Jackson-Bey argued that the evidence was insufficient to
establish his identity as the culprit and that the trial court abused its discretion
in ordering one of his sentences to be served consecutively to the sixty-five-year
sentence in Cause No. MR-8. A panel of this court held that sufficient evidence
established Jackson-Bey’s identity as the culprit and that the trial court did not
abuse its discretion, thereby affirming Jackson-Bey’s convictions and sentence.
See Jackson-Bey, No. 45A04-0911-CR-646, slip op. at 8-9.
[8] Jackson-Bey filed a pro se petition for post-conviction relief on June 2, 2011,
and an amended petition on October 15, 2012. The post-conviction court held
evidentiary hearings on Jackson-Bey’s petition on December 19, 2012, and
March 15, 2013. Both parties then submitted proposed findings of fact and
conclusions of law to the court. The post-conviction court entered findings of
fact and conclusions of law on October 29, 2013, denying Jackson-Bey’s
petition. Jackson-Bey filed a notice of appeal on November 22, 2013. After
numerous procedural delays, this case was finally fully briefed and submitted to
this court.
Post-Conviction Standard of Review
[9] In addressing Jackson-Bey’s claims, it bears repeating that 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
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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 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 than that reached
by the post-conviction court. Id. at 643-44.
[10] Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), 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 under a
clearly erroneous standard. 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
[11] Our supreme court has summarized the law regarding claims of ineffective
assistance of trial counsel as follows:
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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
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,
[i]f 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). Jackson-Bey argues that his trial counsel was ineffective for failing to
do several things. We address each in turn.
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A. Failure to Make an Opening Statement
[12] Jackson-Bey first argues that his trial counsel was constitutionally ineffective for
failing to make an opening statement to the jury. Jackson-Bey’s trial counsel
testified at the post-conviction hearing that he could not remember any
particular reason for not making an opening statement at either of Jackson-
Bey’s trials. He did say, however, that he usually chose not to make opening
statements if the State’s case was fairly strong.
[13] Jackson-Bey now argues that there could be no legitimate reason to choose not
to make an opening statement. However, our supreme court has long held that
“[i]t is by no means unusual for criminal defense counsel to waive opening
argument for a wide variety of reasons.” Roche v. State, 690 N.E.2d 1115, 1124
(Ind. 1997). Therefore, the court has “regularly held that the decision not to
make an opening statement is a matter of trial strategy and will not support an
ineffective assistance of counsel claim.” Id.
[14] Thus, Jackson-Bey has not demonstrated that the post-conviction court clearly
erred in determining that Jackson-Bey’s trial counsel was not ineffective for
failing to make an opening statement.
B. Failure to Depose Witnesses
[15] Jackson-Bey next argues that his trial counsel was ineffective for failing to
depose certain witnesses. Jackson-Bey correctly notes that a criminal defendant
has a constitutional right to confront the witnesses against him. See Ind. Const.
Art. 1, Sec. 13(a); U.S. Const. amend. VI. However, this does not translate into
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an absolute obligation upon counsel to depose witnesses. Indeed, our supreme
court has held that “[c]ounsel’s failure to interview or depose State’s witnesses
does not, standing alone, show deficient performance. The question is what
additional information may have been gained from further investigation and
how the absence of that information prejudiced his case.” Williams v. State, 771
N.E.2d 70, 74 (Ind. 2002) (citing Williams v. State, 724 N.E.2d 1070, 1076 (Ind.
2000)).
[16] Here, Jackson-Bey makes the conclusory argument that deposing the witnesses
prior to trial would have assisted his trial counsel during cross-examination.
However, Jackson-Bey refers us to nothing in the record that would suggest that
his trial counsel’s cross-examination of the witnesses was inadequate.
Moreover, trial counsel testified at the post-conviction hearing that he does not
always depose witnesses and that his choice to do so is a matter of strategy, as
deposing a witness could preserve testimony unfavorable to his client that could
then be used at trial. Therefore, we cannot say that the post-conviction court
clearly erred in concluding that trial counsel was not ineffective for failing to
depose certain witnesses.
C. Failure to Suppress Jackson-Bey’s Confession
[17] Jackson-Bey next faults his trial counsel for failing to object to and suppress the
incriminating statement that Jackson-Bey gave to the police. Jackson-Bey
argues that his counsel knew that the voluntariness of his confession was an
important issue and that counsel was also aware that his confession was “false
and coerced.” Appellant’s Br. p. 8. Jackson-Bey contends that, had his
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confession been challenged, it would have been suppressed, dealing a “serious,
probably fatal blow to the State[’]s case.” Id.
[18] The problem with Jackson-Bey’s argument, however, is that he refers to no
evidence suggesting that his confession was false or coerced. Although the State
bears the burden of establishing the voluntariness of a confession at trial, see
Pruitt v. State, 834 N.E.2d 90, 114-15 (Ind. 2005), Jackson-Bey, as the post-
conviction petitioner, bore the burden of proving his claims for relief. See
Henley, 881 N.E.2d at 643.
[19] Jackson-Bey’s trial counsel testified at the post-conviction hearing that he did
not recall Jackson-Bey ever telling him that the confession was coerced, and
when Jackson-Bey himself testified at the hearing, he offered no testimony to
support his contention that his confession was coerced. Accordingly, the post-
conviction court properly concluded that Jackson-Bey had not established that
his counsel was ineffective for failing to suppress Jackson-Bey’s statement to the
police.
D. Failure to Object to Prosecutor’s Allegedly False Statements
[20] Jackson-Bey next argues that his trial counsel was ineffective for failing to
object to certain statements made by the prosecuting attorney regarding a plea
offer the State sent to Jackson-Bey. Specifically, the prosecuting attorney stated
that the State offered a plea with consecutive sentencing and that Jackson-Bey’s
trial counsel asked that this statement be reduced to writing, which the
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prosecuting attorney did. However, the prosecuting attorney subsequently
stated that he did not reduce the plea to writing or draft a plea. Id. at 10.
[21] Jackson-Bey now claims that his trial counsel should have objected to this
statement because his trial counsel forwarded to him a letter from the State
containing a plea offer. Thus, Jackson-Bey argues that the prosecuting
attorney’s statement that the plea was never reduced to writing constituted
“false testimony” to which his trial counsel should have objected.
[22] We first note that the statements of the prosecuting attorney, even if false, were
not testimony. See Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004) (noting
that statements of counsel are not evidence). More importantly, it does not
appear that the statements by the prosecuting attorney were false.
[23] Jackson-Bey’s trial counsel discussed a possible plea deal with the prosecuting
attorney. At the request of Jackson-Bey’s trial counsel, this plea offer was
reduced to writing on September 24, 2008, in a letter sent by the State to
Jackson-Bey’s trial counsel, which stated in relevant part:
I am writing to follow up on our phone conversation today
regarding [Jackson-Bey]. The terms of the plea the State has
offered are as follows: plead to Counts I and II, ten (10) years on
each count to run concurrent with each other and consecutive to
the sentence in [Cause No. MR-08]. We are set for trial on
October 5, 2009. Hopefully, we can dispose of this matter on
Monday, September 28, 2009. After that date, the plea [offer] will
no longer be open.
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PCR Ex. Vol., Petitioner’s Ex. 4. That same day, Jackson-Bey’s trial counsel took
this letter to Jackson-Bey in jail, along with a letter stating in relevant part:
I came to see you today to tell you about the State’s offer.
Enclosed is a copy of the letter I got today from the prosecutor.
If you accept this offer, you will have to admit in court that you
did rob the victims in both counts, and you will have to sign a
statement that you did rob the victims.
If you accept this offer, sign your name below that you admit
robbing the victims, and that you will accept the State’s offer.
Id., Petitioner’s Ex. 3.1
[24] Although the copy of the letter submitted as evidence by Jackson-Bey indicates
that he signed the plea offer on September 28, 2009, his trial counsel testified at
the post-conviction hearing that Jackson-Bey never indicated to him that he was
willing to accept the State’s plea offer. Instead, on the morning of the first trial
on October 5, 2009, Jackson-Bey told the trial court that he was willing to
accept the State’s plea offer. At this time, the prosecuting attorney told the trial
court that the plea offer had expired.
[25] In this context, it appears that the prosecuting attorney’s statements that
Jackson-Bey now complains about were simply recounting to the trial court that
although the plea offer had been reduced to writing, a formal plea agreement
1
The original text of this letter is in all capitals. For the sake of readability, we have used standard
capitalization in our quotation.
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was never reduced to writing. At most, the prosecuting attorney’s statements
were unclear, not false. Therefore, we cannot fault Jackson-Bey’s trial counsel
for failing to object to these statements.2
E. Failure to Investigate or Present Alibi Defense
[26] Jackson-Bey’s last claim of ineffective assistance of trial counsel is that his
counsel was ineffective for failing to properly investigate and present an alibi
defense. Jackson-Bey contends that, had his counsel properly investigated his
case, he would have discovered the existence of an alibi defense.
[27] At the post-conviction hearing, however, Jackson-Bey never established that he
informed his trial counsel of the possibility of an alibi defense. Instead, he
merely established that his trial counsel knew of a woman named Cherish
Christian (“Christian”). Further, Christian’s affidavit, which was submitted into
evidence by Jackson-Bey at the post-conviction hearing, does not actually
establish an alibi for Jackson-Bey. The affidavit states that Christian received a
telephone call from Jackson-Bey on January 6, 2008 “at 9:00 am while he was
in Chicago[.]” Ex. Vol., Petitioner’s Ex. 2.3 This affidavit, however, does not
explain how Christian knew that Jackson-Bey was in Chicago when he called.
2
To the extent that Jackson-Bey’s argument is that he did intend to accept the plea offer, his trial counsel’s
testimony contradicts this claim, and the post-conviction court was well within its discretion to believe the
testimony of trial counsel.
3
As noted by the State, Christian’s affidavit is typewritten except for a portion which appears to have been
whited-out and overwritten in pen “at 9:00 am while he was in Chicago[.]” Id. This apparent alteration does
not instill confidence in the integrity of the affidavit.
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Also, the post-conviction court, as the trier of fact, was under no obligation to
credit Christian’s affidavit. Moreover, the affidavit does nothing to establish
that Jackson-Bey informed his trial counsel of the possibility that Christian was
an alibi witness.
[28] Under these facts and circumstances, the post-conviction court did not clearly
err in determining that there was “no credible evidence that Jackson-Bey was in
Chicago, Illinois or with Ms. Christian at 9:00 a.m. on January 6, 2008.”
Appellant’s App. p. 7. Thus, his trial counsel was not ineffective for failing to
present an alibi defense.
II. Free-Standing Claim of Error
[29] Amidst his claims of ineffective assistance of trial counsel, Jackson-Bey also
argues that the State failed to introduce evidence that he was the perpetrator of
the crimes, claiming that neither victim made an in-court identification of
Jackson-Bey as the culprit. Jackson-Bey does not frame this question as one of
the ineffective assistance of trial or appellate counsel; he simply claims that the
State failed to prove that he committed the crimes.
[30] This claim, however, may not be presented as a free-standing claim of error in a
post-conviction proceeding. It has long been held that most free-standing claims
of error are not available in a post-conviction proceeding because of the
doctrines of waiver and res judicata. Timberlake, 753 N.E.2d at 597-98. That is,
if an issue was known and available but not raised on direct appeal, the issue is
“waived,” or more accurately, procedurally foreclosed; if an issue was raised
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and decided on direct appeal, it is res judicata. Stephenson v. State, 864 N.E.2d
1022, 1028 (Ind. 2007) (citing Timberlake, 753 N.E.2d at 597). Even free-
standing claims of fundamental error may not be addressed in post-conviction
proceedings. See id. at 1029.
[31] Here, Jackson-Bey did present a claim of insufficient evidence on direct appeal,
and this court held that sufficient evidence established that Jackson-Bey was the
individual who committed the crimes in question. See Jackson-Bey, No. 45A04-
0911-CR-646, slip op. at 8-9. This is now res judicata and cannot be relitigated.
See Stephenson, 864 N.E.2d at 1028 (citing Timberlake, 753 N.E.2d at 597).
Conclusion
[32] The post-conviction court did not clearly err in concluding that Jackson-Bey
was not denied the effective assistance of trial counsel, and Jackson-Bey’s
freestanding claim of insufficient evidence is barred by the doctrine of res
judicata and may not be relitigated in an appeal from the denial of a petition for
post-conviction relief.
[33] Affirmed.
Baker, J., and Bailey, J., concur.
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