Jacob I. Stidham v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 23 2020, 8:37 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Knecht Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jacob I. Stidham, June 23, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-PC-2702
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Sean M. Persin
Appellee Trial Court Cause No.
79C01-1608-PC-32
Altice, Judge.
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Case Summary
[1] Jacob I. Stidham appeals from the denial of his petition for post-conviction
relief (PCR). On appeal, he asserts that the post-conviction court erred in
rejecting his claim of ineffective assistance of trial counsel.
[2] We affirm.
Facts & Procedural History
[3] The facts as set out on direct appeal follow:
On March 5, 2011, R.M. and A.T. were in the Chauncey Hill
area in Lafayette to celebrate a friend’s birthday. After drinking
at some bars and eating at a fast food restaurant, R.M. began
calling for a taxi cab on her cell phone to take her and A.T. back
to where they were staying.
At approximately 3:30 a.m., while R.M. and A.T. were waiting
for the cab, Stidham pulled up in a white SUV. R.M. assumed
that Stidham was the driver from the taxi cab company. Both
girls entered the SUV and R.M. noticed that A.T. had “passed
out” in the back of Stidham’s vehicle. At some point, Stidham
stopped the vehicle and ordered R.M. to perform fellatio on him.
When R.M. refused, Stidham grabbed R.M.’s head and pulled
her close to him.
R.M. escaped Stidham’s grasp, called 911, and told the
dispatcher that her friend had “passed out” in the back of
Stidham’s vehicle. While R.M. was talking with the dispatcher,
Stidham removed R.M.’s seatbelt, opened the passenger side
door, and shoved her out of the vehicle. Stidham then sped away
with A.T. still in the back seat.
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R.M. then ran to a nearby residence, where she again called 911
and attempted to call A.T.’s cell phone. The police were unable
to find Stidham’s vehicle in light of the description that R.M. had
given them.
At approximately 6:29 a.m., A.T. staggered into a Speedway Gas
Station (Speedway) on Old U.S. 231 South in Lafayette. A.T.
was missing her coat and purse, so she used the gas station’s
telephone to contact her family. A.T. noticed that her bra was
unhooked and was experiencing soreness in her vaginal area.
Detective Travis Dowell of the Tippecanoe County Sheriff’s
Department arrived at the Speedway and observed that A.T. was
cold, upset, and crying. A.T. was transported to the hospital
where Shannon Luper, a certified Sexual Assault Nurse
Examiner, performed a rape test on A.T. and recovered a
quantity of DNA from A.T.’s right buttock. Luper also found
white secretion and several red abrasions in A.T.’s vagina, and
some bruises on A.T.’s right knee and forearms.
The police subsequently tested the DNA and found Stidham’s
DNA on record that matched that which was recovered from
A.T. Thereafter, on June 21, 2011, police officers obtained a
search warrant that authorized them to obtain a DNA exemplar
from Stidham. The DNA matched that which was recovered
near A.T.’s right buttock. The police also executed a search
warrant for Stidham’s apartment, where A.T.’s digital camera
was discovered. The camera revealed digital photos of A.T.’s
activities on the night of the assault.
Stidham was arrested, and shortly thereafter, he called a friend,
Benita Allen, and asked her to move a blue container from
another apartment where he occasionally resided. Stidham also
requested that Allen not tell the police where he lived. However,
following Stidham’s arrest and release on bond, the police
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learned about the other residence. Thus, they obtained a search
warrant for this residence and discovered a newspaper article
about the assault on R.M. and A.T. The officers also found
several articles of female clothing in a tub.
***
Several days after Stidham had attacked R.M. and raped A.T.,
Stidham told a friend, Beau Kerkhoff, what he had done to A.T.
and R.M. During that conversation, Stidham admitted having
sexual intercourse with one of the women.
***
R.M. testified that in the early morning of March 6, 2011, she
made approximately five calls for a taxi-cab to take her and A.T.
home from a restaurant in Lafayette. R.M. also described A.T.’s
state of intoxication that morning, explaining that “she was
definitely impaired. She was not walking straight.... I did not feel
that she was capable of making a decision.”
A.T. testified that she remembered drinking alcohol that evening,
but had no recollection of the events after her fourth or fifth
drink. A.T. testified that she only remembered going to the first
bar after dinner, that she did not remember leaving, did not recall
going to other bars or the restaurant, and did not remember
entering Stidham’s vehicle. A.T. testified that the next thing she
remembered was waking up outside the Speedway and not
knowing where she was.
A.T. also denied that she gave Stidham permission to have her
camera, did not have consensual sexual intercourse with
Stidham, and testified that she was unaware that Stidham had
sexual intercourse with her. Luper, the sexual assault nurse who
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examined her, testified that A.T. sustained vaginal injuries, and
that the injuries were most likely sustained during nonconsensual
sexual intercourse.
Kerkhoff testified about the conversation that he had with
Stidham a short time after the attacks where Stidham mentioned
that he had picked up two women from a bar, had dropped one
of them off, and had sexual intercourse with the other.
The State introduced evidence of Stidham’s cell phone records
that placed him in the area where the attacks occurred on March
6, 2011, between 12:55 a.m. and 3:00 a.m., leaving the Lafayette
area at 5:11 a.m., and being near the intersection of U.S. 231 and
U.S. 52 near Otterbein at 5:20 a.m.
R.M.’s cell phone records placed her in the same area until 3:00
a.m. on March 6 and in an area near U.S. 31 after 3:00 a.m. Her
records also indicated that she had called a taxi company at least
four times that evening. A.T.’s cell phone records placed her in
the Chauncey Village area until approximately 3:00 a.m., at
which point the calls that were made to her were forwarded to
her voicemail.
Stidham testified that he had a consensual sexual encounter in
his Jeep with a woman he had met outside of Harry’s bar.
Stidham claimed that the woman performed fellatio and that he
ejaculated on her hand. Stidham also claimed that the woman
had left her camera with him. Stidham then alleged that he did
not have any further contact with the woman that evening.
During closing arguments, Stidham alleged that he was not the
individual who picked up R.M. and A.T. Stidham further
claimed that he had not committed confinement because R.M.
and A.T. had voluntarily entered the vehicle. Finally, Stidham
alleged that he did not commit rape because he did not have
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sexual intercourse with A.T. Rather, Stidham claimed that in
light of A.T.’s “flirtatious behavior” that evening, she likely had
sex with someone other than him.
Stidham v. State, 79A02-1211-CR-939, slip op. at 1-4 (Ind. Ct. App. Dec. 31,
2013) (record citations omitted).
[4] On August 10, 2011, the State charged Stidham with numerous offenses against
both A.T. and R.M., including confinement, receiving stolen property, public
indecency, and attempted deviate conduct. 1 The State was permitted, over
Stidham’s objection, to add a charge of rape days before trial. A three-day jury
trial commenced on September 25, 2012. During the State’s case-in-chief, two
detectives testified that when they transported Stidham to the hospital to obtain
a DNA sample, Stidham provided no statement and did not ask any questions.
In closing, the State referenced Stidham’s silence as evidence of his guilt.
Stidham’s trial counsel did not object to the testimony of the detectives or the
State’s comments during closing. Also, at trial, the State introduced into
evidence A.T.’s camera that was found when police executed a search warrant
at a location where Stidham was known to stay. The camera, however, was not
specifically identified in the search warrant. Stidham’s counsel did not object to
admission of evidence relating to the camera.
1
Stidham was charged with additional offenses stemming from a separate, but similar incident. Upon
Stidham’s motion, these charges were severed and tried separately.
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[5] The jury ultimately found Stidham guilty of two counts of criminal
confinement, both Class C felonies; public indecency as a Class A
misdemeanor; battery as a Class B misdemeanor; and rape as a Class B felony.
On October 29, 2012, the trial court sentenced Stidham to an aggregate
sentence of twenty-three and a half years in the Department of Correction. On
direct appeal, Stidham unsuccessfully challenged the addition of the rape charge
and the sufficiency of the evidence regarding his confinement and rape
convictions.
[6] Stidham filed a pro se PCR petition on August 29, 2016. On August 15, 2018,
Stidham, by counsel, filed an amended PCR petition. In his petition, Stidham
alleged he was denied his right to effective assistance of trial counsel under the
United States and Indiana Constitutions. The post-conviction court held a
hearing on March 20, 2019. During the hearing, Stidham’s trial counsel,
appellate counsel, and Detectives Dowell and Jacob Amberger testified.
Stidham’s trial counsel testified that he had been an attorney for over thirty-six
years and that he would have objected to commentary on Stidham’s right to
remain silent if he thought it presented an issue for appeal. He also testified
that if he thought there was an issue with the admission of the camera, he
would have taken pretrial action and objected at trial. Trial counsel
summarized his experience regarding trial strategy and objections:
As a matter of course, there are usually dozens of things that the
defense lawyer could object to but I choose to not to because
either it doesn’t bear on what’s persuasive to the jury or in some
cases you have to make a close decision about whether or not
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your [sic] going to object and when your [sic] sitting in the trial
you know it’s like checking down a defense you know you’re
reading what’s going on. So yeah there’s reasons sometimes for
trial strategy that you don’t object.
Transcript Vol. 2 at 23. On October 21, 2019, the post-conviction court entered
its findings of fact, conclusions of law, and order denying Stidham’s request for
post-conviction relief. Stidham now appeals. Additional facts will be provided
as necessary.
Discussion & Decision
[7] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
order to prevail, the petitioner must demonstrate that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite the post-conviction
court’s conclusion. Id. Although we do not defer to a post-conviction court’s
legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
[8] A petitioner will prevail on a claim of ineffective assistance of counsel only
upon a showing that counsel’s performance fell below an objective standard of
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reasonableness and that the deficient performance prejudiced the petitioner.
Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must
demonstrate deficient performance, which is “representation that fell below an
objective standard of reasonableness, committing errors so serious that the
defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id.
(quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the
second element, the petitioner must show prejudice, which is “a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different.” Id. at 1139. “A reasonable probability is one that is
sufficient to undermine confidence in the outcome.” Kubsch v. State, 934
N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,
694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Failure to satisfy either element
will cause an ineffectiveness claim to fail. Carrillo v. State, 982 N.E.2d 461, 464
(Ind. Ct. App. 2013). Thus, if a petitioner cannot establish prejudice, we need
not evaluate the reasonableness of counsel’s performance. Id.
There is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. Counsel is afforded
considerable discretion in choosing strategy and tactics, and these
decisions are entitled to deferential review. Isolated mistakes,
poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective.
Stevens v. State, 770 N.E.2d 739, 746–47 (Ind. 2002) (citations omitted).
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[9] We observe that the choice of defense theory is a matter of trial strategy.
Overstreet, 877 N.E.2d 144, 154 (Ind. 2007). Counsel is given “significant
deference in choosing a strategy which, at the time and under the
circumstances, he or she deems best.” Potter v. State, 684 N.E.2d 1127, 1133
(Ind. 1997). “A reviewing court will not second-guess the propriety of trial
counsel’s tactics.” Davidson v. State, 763 N.E.2d 441, 446 (Ind. 2002) (citation
and quotation marks omitted). “[T]rial strategy is not subject to attack through
an ineffective assistance of counsel claim, unless the strategy is so deficient or
unreasonable as to fall outside of the objective standard of reasonableness.”
Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). “This is so even when such
choices may be subject to criticism or the choice ultimately prove[s] detrimental
to the defendant.” Id. (citation and quotation marks omitted).Stidham argues
that the post-conviction court erred in concluding that he was not denied the
effective assistance of trial counsel. Stidham maintains that his trial counsel’s
performance was deficient in two respects—failing to object to testimony and
the State’s comments during closing argument, which he asserts amounted to
Doyle 2 violations, and failing to challenge/object to the admission of evidence
regarding A.T.’s camera because it was obtained outside the scope of a search
warrant. He further argues that he was prejudiced thereby.
2
Doyle v. Ohio, 426 U.S. 610 (1976).
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[10] We first consider Stidham’s argument regarding alleged Doyle violations. After
receiving a search warrant for Stidham’s DNA, Detectives Dowell and
Amberger of the Tippecanoe County Sheriff’s Department went to Stidham’s
place of employment and picked him up to transport him to the hospital for a
blood draw. At trial, the State questioned Detective Dowell as follows:
Q Did you explain to him why you were there?
A Yeah well we explained to him that we had a warrant for
his DNA.
Q Did he say anything or ask any questions?
A No.
***
Q How did you describe his attitude and demeanor during
this time?
A Pretty mellow. He wasn’t saying anything, like I said
never asked us what this was about, never asked us what was
going on, just going along with whatever, you know just go along
with us.
Exhibits Vol. 1 at 33. The State also questioned Detective Amberger:
Q Did you tell the defendant, Jacob Stidham that [you had a
search warrant for his DNA]?
A Yes.
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Q Did he ask you any questions about it?
A No very little was said.
Exhibits Vol. 2 at 112. During closing arguments, the State referred to this
testimony:
And also let’s look at the – let’s look at the defendant’s behavior.
The behavior during the DNA sample he’s approached with a
search warrant we need a sample of your blood, we need your
DNA. Sure he’s cooperative does he ask what is going on?
What are we doing? What’s this about? No questions.
Id. at 175. Stidham argues that his trial counsel was ineffective because he did
not object, move to strike, or request a curative instruction with regard to the
above responses of the detectives or the State’s comments during closing on
grounds of a Doyle violation.
[11] Using a defendant’s post-Miranda silence for impeachment violates the Due
Process Clause of the Fourteenth Amendment. Doyle, 426 U.S. 610; U.S.
Const. amend. XIV. In Doyle, the United States Supreme Court noted that
Miranda warnings give the criminal defendant implicit assurances that his
silence will carry no penalty. Id. at 618. “In such circumstances, it would be
fundamentally unfair and a deprivation of due process to allow the arrested
person’s silence to be used to impeach an explanation subsequently offered at
trial.” Id. at 619. Indiana recognizes the rule set out in Doyle and does not
allow prosecutors to use a defendant’s post-Miranda silence as a means of
impeachment. Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind. 1998). The rule
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also applies to the use of a defendant’s silence as affirmative proof in the State’s
case-in-chief. Kubsch v. State, 784 N.E.2d 905, 914 (Ind. 2003). 3
[12] The post-conviction court found that during the State’s case-in-chief, the
prosecutor “inappropriately highlighted” that Stidham did not ask any
questions when presented with a search warrant for his DNA and that it was
“improper” for the State to comment on such during its closing argument.
Appellant’s Appendix at 92. Nevertheless, the post-conviction court concluded
that, affording due deference to counsel’s strategy, Stidham’s counsel did not
render deficient performance by not objecting to the testimony of the detectives
as set out above. The court noted counsel’s years of experience and his
testimony at the post-conviction hearing that sometimes he would not object if
he did not believe an issue had a persuasive effect on the jury. The court also
found that the detectives’ responses showed that Stidham was cooperative, and
thus, they had some value to him. We also note that the challenged responses
were minimal in terms of the overall testimony provided by the detectives.
[13] The post-conviction court did conclude that trial counsel rendered deficient
performance by not objecting to the State’s comments during closing argument
and not asking that the jury be admonished or for a curative instruction.
Clearly, the State’s comments during closing constituted a Doyle violation as the
3
In a case report prepared by Detective Dowell, he stated that when he and Detective Amberger confronted
Stidham with the search warrant for his DNA, he advised Stidham of his Miranda rights and Stidham
acknowledged that he understood his rights.
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State asked the jury to consider Stidham’s silence when confronted with the
DNA search warrant as evidence of his guilt.
[14] The mere existence of a Doyle violation is not, however, per se grounds for
relief. Doyle violations are subject to a harmless error review. Henson v. State,
514 N.E.2d 1064, 1067 (Ind. 1987); Bieghler v. State, 481 N.E.2d 78, 92 (Ind.
1985), cert. denied (1986). To determine whether a Doyle error is harmless, a
reviewing court must ask if, absent the prosecutor’s allusion to the defendant’s
post-Miranda silence, it is clear beyond a reasonable doubt that the jury would
have returned a guilty verdict. See Yurina v. State, 474 N.E.2d 93, 96-97 (Ind.
1985). Essentially, a Doyle violation is harmless “only when the court, after
assessing the record as a whole to determine the probable impact of the
improper evidence on the jury, can conclude beyond a reasonable doubt that
the error did not influence the jury’s verdict.” Henson, 514 N.E.2d at 1067.
Indiana courts look to the following five factors to determine whether a Doyle
violation constitutes harmless error: 1) the use to which the prosecution puts
the post-arrest silence; 2) who elected to pursue the line of questioning; 3) the
quantum of other evidence indicative of guilt; 4) the intensity and frequency of
the reference; and 5) the availability to the trial judge of an opportunity to grant
a motion for mistrial or to give curative instructions. Id.
[15] Having reviewed the record, we agree with the post-conviction court’s
assessment of the factors and its conclusion that any Doyle violation was
harmless beyond a reasonable doubt. As the post-conviction court found, the
intensity and frequency of the references to Stidham’s silence were “extremely
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low” and the State did not “harp” on this evidence as there was other
substantial evidence of guilt. Appellant’s Appendix at 92.
[16] Aside from the challenged testimony and comment, the State presented
evidence that Stidham told Kirkhoff that he picked up two women from a bar
and had sexual intercourse with one of them; Stidham had access to a vehicle
that matched the description of the car A.T. and R.M. got into; R.M.
remembered specific details about the drive, including that they were headed to
the south side of Lafayette, and she was pushed out of the vehicle and
approached a house on the south side of Lafayette to get help; A.T. was cold,
upset, and crying when she was located at a gas station on the south side of
Lafayette; Stidham’s cell phone records showed that he was on the south side of
Lafayette when the attack occurred even though he lives on the west side of
Lafayette; A.T. was unconscious in the back seat of the vehicle and a medical
examination revealed that she suffered vaginal injuries consistent with non-
consensual intercourse; and Stidham’s DNA matched DNA that was found on
A.T.’s right buttock and the chances of another Caucasian male meeting the
same profile were 1 in 4.5 million. In light of the foregoing, we are confident
that the references to Stidham’s silence as set our herein did not contribute to
the jury’s verdict.
[17] We now turn to Stidham’s argument that his trial counsel was ineffective for
failing to object to admission of evidence pertaining to A.T.’s camera being
found among Stidham’s possessions. The Fourth Amendment to the United
States Constitution requires search warrants to “particularly describ[e] the place
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to be searched, and the persons or things to be seized.” The particularity
requirement restricts the scope of the search, authorizing seizure of only those
things described in the warrant. Lee v. State, 715 N.E.2d 1289, 1290 (Ind. Ct.
App. 1999). If a search and seizure exceeds the scope of the search warrant, it
is unconstitutional. Sidener v. State, 55 N.E.3d 380, 383 (Ind. Ct. App. 2016).
Here, the search warrant identified four specific items law enforcement believed
A.T. was missing: a black jacket, a red purse, a wallet, and a cell phone.
Seizure of A.T.’s camera therefore exceeded the scope of the warrant and was
unconstitutional.
[18] The post-conviction court concluded that trial counsel could have filed a
motion to suppress the camera and related evidence and that such motion
would have been successful because the camera was seized outside the scope of
the search warrant. 4 Rather than seeking to suppress the camera, Stidham’s
trial counsel’s indicated that his strategy was to use pictures found on the
camera to aid the defense. Specifically, Stidham’s defense was that A.T. was so
intoxicated that she did not remember the events of the night or even recognize
Stidham. To explain how his DNA was found on A.T., Stidham testified that
A.T. performed fellatio on him and that he ejaculated on her hand and that
4
The post-conviction court properly concluded that the plain view doctrine does not apply. To seize
evidence in plain view and not identified in a warrant, the initial intrusion must have been authorized under
the Fourth Amendment, the items must have been in plain view, and the incriminating nature of the evidence
must be immediately apparent. Jones v. State, 783 N.E.2d 1132, 1137 (Ind. 2003). The incriminating nature
of the camera was not immediately apparent. Rather, it was seized because the officer executing the search
warrant came across the camera in an unusual place. The officer was unable to confirm that the camera
belonged to A.T. prior to seizing it.
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after they went back into the bar, A.T. asked him to hold her camera. He
claimed that he never saw her again that night. Trial counsel pointed out that
the pictures taken from the camera showed A.T. partying and flirting with other
men and suggested that A.T. had sexual intercourse with someone other than
Stidham, which theory was supported by the fact that other DNA found in
A.T.’s pants did not belong to Stidham. We will not second-guess trial
counsel’s strategy to use pictures from the camera found in Stidham’s
possession to support the defense. See Davidson, 763 N.E.2d at 446.
[19] Strategy aside, Stidham has failed to show how he was prejudiced. Even if trial
counsel had successfully moved to suppress evidence related to A.T.’s camera
or objected to its admission at trial, we cannot say that there is a reasonable
probability of a different outcome given the DNA evidence, cell phone location
records, and witness testimony. Stidham has not established that the post-
conviction court erred in denying him relief based on his claims of ineffective
assistance of counsel.
[20] Judgment affirmed.
Bailey, J. and Crone, J., concur.
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