MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   Jul 30 2020, 9:19 am

court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
the defense of res judicata, collateral                                            Court of Appeals
                                                                                     and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Gentry H. Jackson                                         Curtis T. Hill, Jr.
Bunker Hill, Indiana                                      Attorney General of Indiana
                                                          Samuel J. Dayton
                                                          Caryn N. Szyper
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gentry H. Jackson,                                        July 30, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-PC-1249
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Salvador Vasquez,
Appellee-Respondent.                                      Judge
                                                          The Honorable Kathleen A.
                                                          Sullivan, Magistrate
                                                          Trial Court Cause No.
                                                          45G01-1711-PC-8



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020                           Page 1 of 17
[1]   Gentry H. Jackson (“Jackson”) was convicted in Lake Superior Court of

      murder. Following an unsuccessful direct appeal, Jackson filed a petition for

      post-conviction relief. The post-conviction court denied Jackson’s petition, and

      Jackson appeals, claiming that the post-conviction court clearly erred in

      determining that he was not denied the effective assistance of trial counsel.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In Jackson’s direct appeal, we set forth the facts underlying his conviction as

      follows:


              Jackson is married to Michelle Jackson. Previously, Michelle was
              married to Alec McCloud for eight to nine years and had five
              children with him. Two of those children were Justin McCloud
              and Alexis McCloud Rogers; Justin was twenty-two at the time
              of trial, and Alexis was nineteen. Michelle asserted that Alec had
              been abusive towards her during their marriage, and Alec and
              Jackson had a very antagonistic relationship. Alec was not
              welcome at Jackson’s residence.

              On August 3, 2015, Alexis was living with Jackson and Michelle
              in Gary. Justin also was at the house that day. At some point on
              that day, before the sun went down, Alexis returned to the house
              from an outing and had to knock on the door because she did not
              have a key. As she was knocking, she saw Alec drive up to the
              house in his mother’s car. Alexis had not spoken to Alec for
              months and was surprised to see him. Justin opened the door for
              Alexis and also saw Alec parked outside; he had spoken to Alec
              earlier and was aware he was in town.

              Alexis got into an argument with Michelle after going into the
              house and mentioning to Justin that their father was outside.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 2 of 17
        Justin went outside while Alexis and Michelle continued
        arguing. When Michelle noticed that Alec was outside, she
        yelled at Alexis, “why did [you] bring him over here.” Alexis
        noticed Jackson go into his bedroom, come back out carrying a
        gun, and go outside. As Jackson walked past Michelle, she said,
        “make sure that’s him.” Justin could see that Alec was on his
        phone, sitting in the car, when Jackson approached the car and
        said, “I got you now.” Justin did not see anything else in Alec’s
        hands besides his cell phone. Jackson then began shooting at the
        car and eventually fired a total of eight shots. Alec began driving
        away as Jackson opened fire.

        Alec drove for a short distance before wrecking the car. Justin
        and a friend of his arrived on the scene shortly thereafter. Justin
        and his friend saw Alec’s phone in his lap and nothing else, such
        as a gun. Police never recovered a gun from Alec or the car.
        There were five bullet holes in the driver’s side front door and
        one in the rear door. Alec suffered gunshot wounds to his back,
        abdomen, and buttocks. After undergoing emergency surgery,
        Alec died.

        After the shooting, Jackson took the chamber out of the gun,
        called 911, reported the shooting, and waited for police to arrive.
        While waiting, Michelle told Alexis, “Look what you made my
        husband do. My husband better not go to jail.” When police
        arrived, Jackson told them he had shot Alec because he had seen
        Alec point a gun at him.

        In Alexis’s first statement to police immediately after the
        shooting, she said that Alec had called Jackson to the car and
        that she saw Alec holding a gun. She also said Alec may have
        shot first. Alexis also made similar statements to defense counsel.
        However, at the end of December 2015, Alexis went to the police
        station with Alec’s mother and said she had lied in her earlier
        statements, and that in fact from where she was standing she
        could not see if Alec was holding anything in his hands. Alexis
        explained that she felt pressured to lie because of Michelle’s
        perceived threat to her that Jackson “better not go to jail.”
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 3 of 17
      Jackson v. State, No. 45A03-1609-CR-2032, 2017 WL 2628444 at *1–2 (Ind. Ct.

      App. June 19, 2017), (record citations omitted) trans. denied.


[4]   The State charged Jackson with murder. Jackson filed a pre-trial motion in

      limine to prevent the State from presenting evidence that Michelle had

      threatened Alexis that Jackson had “better not go to jail.” The trial court

      initially granted the motion but later reversed itself and allowed the admission

      of the statement. During the direct examination of Alexis at trial, the State

      presented evidence of Michelle’s statement in order to explain why Alexis’s

      initial statements (that she saw Alec with a gun) differed from her later

      statements and from her trial testimony (that she did not see Alec holding a

      gun). The trial court allowed Alexis to testify as to Michelle’s statement, but

      instructed the jury that it was to consider Alexis’s testimony regarding what

      Michelle told her only to show Alexis’s state of mind at the time, not to prove

      the truth of the matter asserted by Michelle.


[5]   Jackson testified on his own behalf at trial, claiming that Alec asked him to

      approach the car, and as he did so, that Alec raised a gun and pointed it at him.

      Jackson claimed he then pulled his gun out of his waistband and began firing it

      at the car, not really aiming at Alec, as he ran backwards and attempted to take

      shelter behind his own car. The jury rejected Jackson’s claim of self-defense and

      found Jackson guilty as charged.


[6]   On direct appeal, Jackson presented three issues: (1) whether the trial court

      abused its discretion by permitting the State to present evidence of Michelle’s


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 4 of 17
      statement to Alexis; (2) whether there was sufficient evidence of Jackson’s mens

      rea to support his conviction for murder; and (3) whether there was sufficient

      evidence to rebut Jackson’s claim of self-defense. Jackson, 2017 WL 2628444 at

      *1. We rejected these claims, concluding that the admission of the statement

      was not unduly prejudicial, that the evidence was sufficient to support Jackson’s

      murder conviction, and that there was sufficient evidence to rebut Jackson’s

      claim of self-defense. Id. at *4–5. Our supreme court denied Jackson’s petition

      to transfer. Jackson v. State, 92 N.E.3d 1090 (Ind. 2017) (table).


[7]   On November 29, 2017, Jackson filed a pro se petition for post-conviction

      relief. Jackson filed an amended petition, by counsel, on September 14, 2018.

      The post-conviction court held an evidentiary hearing on Jackson’s petition on

      November 14, 2018, and on May 7, 2019, the post-conviction court entered

      findings of fact and conclusions of law denying Jackson’s petition. Jackson now

      appeals.


                           Post-Conviction Standard of Review
[8]   We have repeatedly explained 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 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


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 5 of 17
       evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). Thus, on appeal

       from the denial of a petition for post-conviction relief, the petitioner stands in

       the position of one appealing from a negative judgment. Id. To prevail on

       appeal from the denial of post-conviction relief, the petitioner must show that

       the evidence, as a whole, leads unerringly and unmistakably to a conclusion

       opposite that reached by the post-conviction court. Id. at 643–44.


[9]    The post-conviction court made specific findings of fact and conclusions of law

       in accordance with Indiana Post-Conviction Rule 1(6). On review, we must

       determine if the court’s findings are sufficient to support its judgment. Graham

       v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d

       962. Although we do not defer to the post-conviction court’s legal conclusions,

       we review the post-conviction court’s factual findings for clear error. Id.

       Accordingly, we will not reweigh the evidence or judge the credibility of

       witnesses, and we will consider only the probative evidence and reasonable

       inferences flowing therefrom that support the post-conviction court’s decision.

       Id.


                          Ineffective Assistance of Trial Counsel
[10]   Jackson claims that the post-conviction court erred in rejecting his claim that

       his trial counsel was ineffective. Our supreme court has summarized the law

       regarding claims of ineffective assistance of trial counsel as follows:


               A defendant claiming a violation of the right to effective
               assistance of counsel must establish the two components set forth
               in Strickland v. Washington, 466 U.S. 668 (1984). First, the

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 6 of 17
               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,
               if it is easier to dispose of an ineffectiveness claim on the ground
               of lack of sufficient prejudice . . . that course should be followed.


       Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations

       omitted).


                                      Discussion and Decision
[11]   Jackson argues that his trial counsel was constitutionally ineffective by failing to

       depose certain witnesses and failing to obtain certified records of the victim’s

       criminal history. We address each in turn.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 7 of 17
       A. Failure to Depose Hospital Personnel

[12]   Jackson first claims that his trial counsel’s performance was deficient because

       he did not depose or otherwise interview the medical personnel who treated

       Alec after the shooting. At trial, the coroner’s report indicated that, at the time

       of his death, Alec had amphetamines and cannabinoids in his system. See Trial

       Ex. Vol. pp. 111, 117.1 In his closing argument, Jackson’s trial counsel argued

       that Alec was the aggressor and that his “perception of events was clouded with

       methamphetamine and marijuana in his system.” Trial Tr. Vol. 3, p. 126. With

       regard to the drug’s in Alec’s system, the State countered in its rebuttal that:


                  We know there was marijuana in Mr. McCloud’s system and --
                  okay. Methamphetamines, I have no idea. I mean but let’s not sit
                  here and speculate that he was out smoking meth.
                  Methamphetamine in your system can come from a number of
                  things. It can come from prescription medicine. He was just at
                  the hospital treated for an hour while they tried to save his life. I
                  have no idea how it happened. I have no idea how it got there
                  and you should not speculate.


       Id. at 127–28.


[13]   Jackson now claims that his trial counsel should have asked the hospital staff

       regarding the source of the methamphetamine that was found in Alec’s blood at

       the time of his death and then presented their testimony at trial. Jackson

       specifically notes that Dr. Reuben Rutland, the head of trauma surgery at




       1
           We refer to the pages in the PDF document, not the exhibits themselves.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 8 of 17
       Methodist Hospital where Alec was treated, testified at the post-conviction

       hearing that emergency room personnel did not give Alec marijuana,

       methamphetamine or any drug that would be metabolized into

       methamphetamine. Jackson claims that, had such evidence been presented at

       trial, it would have undermined the State’s claim in closing argument that there

       was an innocent explanation for the drugs in Alec’s system.


[14]   Jackson, however, failed to establish that any of the medical staff would have

       been permitted to testify regarding the source of the drugs in Alec’s system. Dr.

       Rutland testified that Alec’s treatment in the emergency room was not the

       source of the positive drug tests. Dr. Rutland also testified that he was unaware

       if several medications, including Wellbutrin, Prozac, Sudafed, and Ibuprofen,

       could result in a false positive for methamphetamine or marijuana. Dr. Rutland

       responded that such questions were better directed to a pharmacist or

       pharmacologist, not an emergency room surgeon. Jackson did not present any

       evidence as to what any other hospital staff would have testified to. Under these

       facts and circumstances, we cannot say that the failure to depose Dr. Rutland,

       or other hospital staff, constituted deficient performance. Dr. Rutland merely

       testified that Alec was not given marijuana or methamphetamine in the

       emergency room, which is not a surprising admission. He was unable to testify

       as to the source of the drugs found in Alec’s system,2 and Jackson did not




       2
        Moreover, even if trial counsel had presented such evidence, it was unlikely that this would have altered the
       outcome of the trial. The jury was made aware of the drugs in Alec’s system, and further speculation


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020                     Page 9 of 17
       present any other evidence that any other hospital personnel would have been

       able to testify as to the source of the drugs in Alec’s system.


       B. Failure to Depose Alexis McCloud Rogers

[15]   Jackson next contends that his trial counsel’s performance was deficient

       because counsel did not depose Alexis McCloud Rogers (“Alexis”), the

       daughter of the victim, Alec, and Jacksons’ wife, Michelle. As noted in our

       opinion in Jackson’s direct appeal, Alexis initially told the police that Alec had

       called Jackson to the car, that she saw Alec holding a gun, and that Alec may

       have fired the first shot. Alexis gave a similar account of the events of the

       shooting to Jackson’s trial counsel. After she made these statements, but before

       trial, Alexis recanted her earlier statement, informing the police that she could

       not see whether Alec had a gun and that she felt pressured to lie because her

       mother Michelle had said to her, “Look what you made my husband do. My

       husband better not go to jail.” Trial Tr. Vol. I, p. 157. Jackson’s trial counsel

       used Alexis’s initial statements to impeach her at trial, when she testified that

       she did not see Alec holding a gun and felt pressured to lie because of the

       perceived threat from her mother.


[16]   Jackson acknowledges that his trial counsel impeached Alexis with her prior

       statements. However, he argues that his trial counsel should have deposed

       Alexis because, he claims, a prior sworn statement such as deposition testimony




       regarding the source of these drugs would have been unlikely to convince the jury that his use of drugs made
       him the aggressor in the shooting.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020                   Page 10 of 17
       would have been admissible as substantive evidence instead of merely

       impeachment evidence. See Gray v. State, 982 N.E.2d 434, 437 n.1 (Ind. Ct.

       App. 2013) (noting that a prior inconsistent statement may be admissible as

       substantive evidence if the declarant testifies at trial, is subject to cross-

       examination, and the statement was given under oath subject to the penalty of

       perjury at a trial, hearing, or deposition) (citing Ind. Evidence Rule 801(d)(1));

       Stoltmann v. State, 793 N.E.2d 275, 281 (Ind. Ct. App. 2003) (“a witness’s prior

       inconsistent unsworn statement is not admissible as substantive evidence.”),

       trans. denied.


[17]   The problem with Jackson’s argument is that he failed to establish what Alexis

       would have testified to had she been deposed. He did not call her as a witness at

       the post-conviction hearing. Maybe Alexis would have testified at a deposition

       in a manner consistent with her original statement implicating Alec. But it is

       also possible that she would have testified in a manner consistent with her trial

       testimony implicating Jackson. For this reason, we agree with the post-

       conviction court that Jackson did not prove that his trial counsel’s performance

       fell below an objective standard of reasonableness for his failure to depose

       Alexis.


       C. Failure to Depose Justin McCloud and Trent Hester

[18]   Jackson next argues that his counsel’s performance was deficient because he

       failed to depose Alec’s son, Justin McCloud (“Justin”), and Justin’s friend

       Trent Hester (“Hester”). Both of these individuals arrived on the scene shortly


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 11 of 17
       after the shooting and testified that they saw nothing in Alec’s possession other

       than a cell phone on his lap.


[19]   Jackson claims that Justin and Hester testified at trial that they went to the

       scene where Alec’s car had crashed and removed some items from the car

       before the police arrived. At trial, Justin testified that Hester took Alec’s cell

       phone and wallet. Hester testified that he took the cell phone and gave it to the

       police but that he never took the wallet. They both testified that the bag at the

       scene of the crash was a bag containing Justin’s clothes. Jackson claims that

       Justin and Hester had the opportunity to remove any gun that Alec might have

       had before the police arrived. Yet again, however, Jackson did not call either

       Justin or Hester as a witness at the post-conviction hearing. Therefore, it is

       unknown how they would have testified at a pre-trial deposition. It is also

       unlikely that they would have testified that they removed a gun from the car

       given that their trial testimony was that they did not see a gun in Alec’s

       possession.3


[20]   Jackson also claims that, had Justin been deposed prior to trial, it would have

       been possible, through a reconstruction of the scene, to determine whether

       Justin could have been able to see from his vantage point whether Alec had a

       gun. In addition to being entirely speculative, Justin testified at trial that he

       rushed to the scene of his father’s crashed car and looked inside the car. It is




       3
        Even if they lied about the gun, which is Jackson’s contention, it is unlikely that a deposition would have
       made them alter their testimony.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020                    Page 12 of 17
       clear from his testimony that he would have been able to see whether Alec was

       in possession of a weapon. Yet all he saw was a cell phone in Alec’s lap.


[21]   Jackson also claims that Justin’s and Hester’s testimony regarding what

       happened when they went to the scene of Alec’s crashed car differed

       considerably from their testimony at the pre-trial habeas corpus hearing.

       Jackson, however, has not provided us with a copy of the transcript of the

       testimony presented at the habeas hearing. We are therefore unable to

       determine any inconsistency between their testimony at trial and at the habeas

       hearing. We note, however, that Jackson’s trial counsel did attempt to impeach

       Justin’s testimony by noting some inconsistency between his testimony at the

       pre-trial habeas hearing and his trial testimony. See Trial Tr. Vol. I, pp. 94–98

       (trial counsel noting the inconsistency in Justin’s testimony regarding whether

       his father came to pick him up). Still, Jackson contends that, had his trial

       counsel deposed Justin and Hester, there may have been additional

       inconsistencies in their depositions that may have allowed his trial counsel to

       further impeach Justin’s credibility. This is sheer speculation. In light of the fact

       that Jackson’s trial counsel testified at the post-conviction hearing that he chose

       not to depose the witnesses before trial as a matter of strategy—so as not to

       memorialize testimony and so that his trial strategy would not be revealed to

       the prosecution—we cannot say that the choice not to depose Justin and Hester

       constituted deficient performance.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 13 of 17
       D. Failure to Obtain Certified Records of Alec’s Criminal History

[22]   Jackson also faults his trial counsel for failing to obtain certified copies of Alec’s

       criminal history. Evidence of a person’s character is generally inadmissible to

       prove action in conformity therewith on a particular occasion. Ind. Evidence

       Rule 404(a). Evidence Rule 404(a)(2), however, “provides an exception to the

       rule against introducing evidence to imply that a person acted in conformity

       with character on a particular occasion.” Brand v. State, 766 N.E.2d 772, 779

       (Ind. Ct. App. 2002), trans. denied. Yet, Rule 404(a)(2) “does not contemplate

       that character evidence will offer a glimpse into a defendant’s mind at the time

       he acted in self-defense. This proposition sought to be proved by the defense is

       different than the one espoused in Rule 404(a)(2).” Id. Instead:


               Introduction of specific acts to prove the defendant’s state of
               mind would support the proposition that the defendant had a
               reasonable belief that deadly force was necessary. In contrast,
               introduction of specific acts as victim character evidence, as
               permitted by Rule 404(a)(2), would support the proposition that
               the victim was using unlawful force. These are two separate and
               distinct propositions, and in fact constitute separate elements of
               self-defense. Moreover, because the general exclusionary rule of
               Evidence Rule 404(a) applies only when character evidence is
               used for the purpose of proving action in conformity with []
               character, it is apparent that when character evidence is utilized for
               some other purpose, such as to show defendant’s state of mind, the rule is
               inapplicable. See Evid. R. 404(a).


       Id. (emphasis added)




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 14 of 17
[23]   “[T]he victim’s reputed character, propensity for violence, prior threats and

       acts, if known by the defendant, may be relevant to the issue of whether a

       defendant had fear of the victim prior to utilizing deadly force against him.” Id.

       (emphasis added). “[A]lthough a victim’s threats or violence need not be

       directed toward the defendant, ‘the defendant must have knowledge of these

       matters at the time of the . . . confrontation between the victim and the

       defendant.’” Welch v. State, 828 N.E.2d 433, 437 (Ind. Ct. App. 2005) (citing

       Holder v. State, 571 N.E.2d 1250, 1254 (Ind. 1991); Feliciano v. State, 477 N.E.2d

       86, 88 (Ind. 1985)).


[24]   In the present case, Jackson claims that the admission of Alec’s criminal

       records would have bolstered his claim of self-defense. There are several

       problems with Jackson’s argument. First, he did not introduce a copy of Alec’s

       criminal history into evidence at the post-conviction hearing. We are therefore

       unable to determine the nature and extent of Alec’s criminal history and how

       his criminal history might have been relevant to show Jackson’s state of mind.

       Also, Jackson does not explain to what extent he knew of Alec’s criminal

       record. Alec’s criminal record could not have been relevant to Jackson’s state of

       mind if, at the time of the shooting, Jackson was unaware of Alec’s criminal

       record.


[25]   Still, our review of the transcript of Jackson’s trial does show that, several

       months prior to the shooting, Jackson received a report from a trial court in

       California that involved an investigation of Alec with regard to his children.

       This report, which was admitted at trial as Defendant’s Exhibit 9, indicated that

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 15 of 17
       Alec “ha[d] a history of illicit drug use and is a current user of cocaine and

       marijuana which renders the father incapable of providing regular care and

       supervision of the child,” that Alec had “a positive toxicology screen for

       cocaine and marijuana,” and that Alec “had a criminal history of conviction of

       possession of narcotic[s], controlled substance, and that his illicit drug use

       endangered the child's physical health and safety, places the child at risk of

       serious physical harm.” Trial Tr. Vol. 2, pp. 202–03. The trial court admitted

       this document for the limited purpose of “showing how the document may

       have had an effect on [Jackson] and perhaps future actions.” Id. at 200. Jackson

       and his wife, Michelle, also testified at trial regarding Alec’s allegedly

       threatening behavior toward them. Indeed, Michelle testified that Alec had a

       history of physically abusing her, and Jackson testified that Alec had threatened

       him in the past. See Trial Tr. Vol. 2, pp. 111–12, 156, 161–62, 177–78, 182–83,

       191. As noted by the State, none of these incidents were reported to the police

       and would therefore not have been included in Alec’s official criminal history.


[26]   Accordingly, even without the admission of Alec’s certified criminal record, the

       jury was made well aware of Jackson’s claims that he was afraid of Alec, and

       the jury was presented with evidence of Alec’s criminal history in California.

       And Jackson has not demonstrated that he was personally aware of any

       additional information regarding Alec’s criminal history that was not already

       presented to the jury. Under these facts and circumstances, we agree with the

       post-conviction court that Jackson “failed to show how certified records of Alec

       McCloud’s prior convictions would have overcome the standard that [Jackson]


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 16 of 17
       must have had personal knowledge of those convictions at the time of the

       shooting, or that they would not be cumulative of that knowledge.” Appellant’s

       App. p. 78. In short, Jackson has not demonstrated that his trial counsel’s

       failure to obtain certified copies of Alec’s criminal history constituted deficient

       performance.


                                                 Conclusion
[27]   The post-conviction court did not clearly err in concluding that Jackson was not

       denied the effective assistance of trial counsel. Trial counsel’s failure to depose

       various witnesses did not constitute deficient performance, nor did counsel’s

       failure to introduce certified copies of Alec’s criminal record. We therefore

       affirm the judgment of the post-conviction court.


[28]   Affirmed.


       Bradford, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1249 | July 30, 2020   Page 17 of 17
