MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Sep 22 2015, 8:28 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.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John Andrew Goodridge                                    Gregory F. Zoeller
Evansville, Indiana                                      Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joaquin Starks,                                          September 22, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         82A05-1501-PC-44
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Respondent                                      Judge

                                                         The Honorable Kelli E. Fink,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         82C01-0802-MR-232



Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 82A05-1501-PC-44 | September 22, 2015   Page 1 of 9
                                             Case Summary
[1]   Joaquin Starks was convicted of murder following a jury trial. We affirmed his

      conviction on direct appeal. He then filed a petition for postconviction relief

      which was denied by the postconviction court. He now appeals that denial

      claiming that the trial court abused its discretion in admitting certain evidence

      during his jury trial and also that he was denied the effective assistance of trial

      counsel. Concluding that his claim regarding the admissibility of evidence is

      barred by the doctrine of res judicata and that the postconviction court properly

      determined that he failed to demonstrate that his trial counsel’s performance

      was both deficient and prejudicial, we affirm.


                                 Facts and Procedural History
[2]   The facts of Starks’s underlying conviction were recited by another panel of this

      Court on direct appeal as follows:

              Starks and Ida Jefferson (Jefferson) had a prior relationship.
              Jefferson moved in with Starks’ cousin Tammie Funches
              (Funches) after Jefferson’s relationship with Starks ended.
              Funches lived in an apartment complex located in Vanderburgh
              County, Indiana.

              Prior to the shooting on February 29, 2008, Starks told others
              that Jefferson had taken his wallet. Starks later separately told
              Funches and another friend that Starks would kill Jefferson if
              Jefferson failed to return the wallet. On February 27, 2008,
              Starks filed a police report with the Evansville Police Department
              alleging that Jefferson stole his wallet.

              On February 29, 2008, Jefferson and Funches returned to their

      Court of Appeals of Indiana | Memorandum Decision 82A05-1501-PC-44 | September 22, 2015   Page 2 of 9
        apartment around 3:30 a.m. Starks emerged from a door of the
        apartment complex with a firearm and fired a shot toward
        Funches. Starks then shot Jefferson several times, finally walking
        over to Jefferson and shooting her in the back of the head.
        Jefferson died as a result. Funches identified Starks as the
        assailant.

        On February 29, 200[8], the State filed an information charging
        Starks with murder, I.C. § 35-42-1-1. On May 6, 2009, Starks was
        tried, but the trial ended in a mistrial on May 8, 2009. After the
        matter was set for retrial, on August 7, 2009, Starks filed a
        motion in limine to exclude “[a]ny reference to any prior or
        existing criminal charges against [him] concerning the victim or
        any other person whether they resulted in a conviction or not.”
        On September 11, 2009, the State submitted notice that it
        intended to introduce into evidence Starks’ July 25, 2006 Class A
        misdemeanor conviction for domestic battery against Jefferson.

        On October 1, 2009, the trial court ruled that Starks’ 2006
        domestic battery conviction was admissible under Evid.R. 404(b)
        to show: (1) Starks’ motive; (2) Starks[’] relationship with
        Jefferson; and, (3) the hostility involved in Starks[’] and
        Jefferson’s relationship. The trial court further ruled that the
        probative value of Starks’ 2006 domestic battery conviction
        outweighed any prejudicial effect. However, the trial court
        limited evidence regarding the prior conviction to the charging
        information and docket sheet.

        On October 7, 2009, a second jury trial was conducted. The
        State offered Starks’ 2006 domestic battery conviction into
        evidence as State’s Exhibit No.1 at the close of its case-in-chief.
        Starks’ counsel objected and argued that the 2006 domestic
        battery conviction was “remote in time from the incident in
        question. So it doesn’t show motive. And [ ] I think also it has a
        tendency to cause my [ ] client to be looked at in a different light
        [ ] considering that it’s not an impeachable offense. And so I
        believe it’s inadmissible and [ ] … that’s my objection.” The trial

Court of Appeals of Indiana | Memorandum Decision 82A05-1501-PC-44 | September 22, 2015   Page 3 of 9
        court admitted the 2006 prior conviction over Starks’ objection,
        but admonished the jury with the following instruction:


             [Y]ou are instructed that evidence of crimes or other bad
             acts, other than the charged offense, is generally
             inadmissible as proof of the guilt of the defendant and
             cannot be considered as evidence that the defendant acted
             in conformity with these prior acts. Meaning, they are not
             being offered and should not be considered as evidence
             that the defendant is a bad person or a criminal. The
             purpose of this evidence is to give you some background
             into the relationship of the parties and the evidence is also
             presented as evidence of the defendant’s motive. This
             evidence should be considered for these limited purposes
             only.


        During its closing argument, the State referred to Starks’ 2006
        domestic battery conviction and stated as follows:


             When you review the documents when you deliberate you
             can look at State’s Exhibit No. 1 […] Defendant pled
             guilty on or about May the 11th 2006, Joaquin M. Starks
             did knowingly or intentionally touch Ida Jefferson, a
             person who is or was living as if the spouse of said Joaquin
             M. Starks, in a rude, insolent, or angry manner by striking
             and kicking the said Ida Jefferson, which did thereby result
             in bodily injury to the said Ida Jefferson. The fact that the
             defendant battered Ida on a previous occasion by itself
             does not prove that he murdered her, but it shows that he
             is capable of striking her and that he is capable of causing
             injury to her. He has done it in the past.


        Starks raised no objection to the State’s closing argument.




Court of Appeals of Indiana | Memorandum Decision 82A05-1501-PC-44 | September 22, 2015   Page 4 of 9
      Starks v. State, No. 82A01-1006-CR-266, slip op. at 1-2 (Ind. Ct. App. Oct. 18,

      2011).


[3]   At the conclusion of the second trial, the jury found Starks guilty as charged.

      The trial court imposed a sixty-year executed sentence. Starks appealed, raising

      one issue, namely that the trial court abused its discretion when it permitted the

      State to introduce evidence of his 2006 domestic battery conviction pursuant to

      Indiana Evidence Rule 404(b). Concluding that the trial court did not abuse its

      discretion, we affirmed Starks’s conviction. Id. at 4. Starks filed a petition for

      postconviction relief on May 15, 2012. Following an evidentiary hearing, the

      postconviction court entered its findings of fact and conclusions of law denying

      the petition for relief. This appeal ensued.


                                     Discussion and Decision
[4]   Our standard of review for postconviction proceedings is well settled.

      Postconviction proceedings are civil in nature and the petitioner must prove his

      grounds for relief by a preponderance of the evidence. Davidson v. State, 763

      N.E.2d 441, 443 (Ind. 2002). Postconviction proceedings afford petitioners a

      limited opportunity to raise issues that were unavailable or unknown at trial

      and on direct appeal. Id. Issues available but not raised on direct appeal are

      waived, while issues litigated adversely to the defendant are res judicata. Wilkes

      v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). Because a defendant appealing

      from the denial of postconviction relief is appealing from a negative judgment,

      he bears the burden of proof and must establish that the evidence, as a whole,


      Court of Appeals of Indiana | Memorandum Decision 82A05-1501-PC-44 | September 22, 2015   Page 5 of 9
      unmistakably and unerringly points to a conclusion contrary to the

      postconviction court’s decision. Id. “In other words, the defendant must

      convince this Court that there is no way within the law that the court below

      could have reached the conclusion it did.” Id. (citation omitted).


      Section 1 – Starks’s evidentiary claim is barred by res judicata.
[5]   Starks first claims that the trial court abused its discretion when it admitted

      evidence of his prior domestic battery conviction. He claims that the evidence

      was inadmissible under the version of Indiana Evidence Rule 404(b) in effect at

      the time of his trial, which provided in pertinent part that “[e]vidence of other

      crimes, wrongs, or acts is not admissible to prove the character of a person in

      order to show action in conformity therewith,” but may be admissible “for

      other purposes, such as proof of motive, intent, preparation, plan, knowledge,

      identity, or absence of mistake or accident ….” Starks points to the State’s

      closing argument to support his claim that the evidence of his prior crime was

      improperly admitted to prove action in conformity therewith in violation of

      Evidence Rule 404(b).


[6]   Starks’s current claim is precisely the same evidentiary claim that was already

      considered and specifically rejected by this Court on direct appeal. Starks, slip




      Court of Appeals of Indiana | Memorandum Decision 82A05-1501-PC-44 | September 22, 2015   Page 6 of 9
      op. at 3-4. 1 Issues raised and litigated adversely to the defendant on direct

      appeal are res judicata and not subject to consideration for postconviction relief.

      Wilkes, 984 N.E.2d at 1240. Starks may not relitigate this issue.


      Section 2 – Starks has not demonstrated that he was denied the
                    effective assistance of trial counsel.
[7]   In an attempt to avoid the application of res judicata, Starks maintains that the

      postconviction court erred when it concluded that his trial counsel was not

      ineffective in failing to object to the State’s reference to his prior domestic

      battery conviction during closing argument. A successful claim of ineffective

      assistance of trial counsel must satisfy two components. First, the defendant

      must demonstrate that counsel’s performance was deficient—representation

      that fell below an objective standard of reasonableness involving errors so

      serious that the defendant was not afforded counsel guaranteed by the Sixth

      Amendment. Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013). Second, the

      defendant must show prejudice—a reasonable probability that, but for counsel’s

      errors, the result of the proceeding would have been different. McCary v. State,



      1
        On direct appeal, we initially concluded that Starks had waived his challenge to the admission of the
      evidence by failing to object to the State’s reference and alleged misuse of such evidence during closing
      argument. See Starks, slip. op. at 2. However, waiver notwithstanding, we considered the admissibility of the
      evidence on the merits and concluded that the trial court did not abuse its discretion in admitting the
      evidence. Id. at 3. Specifically, we determined that evidence of the prior domestic battery conviction was
      admissible pursuant to Evidence Rule 404(b) for the purposes of showing the hostile relationship between
      Starks and Jefferson and his motive for murdering her. Id. We also found significant that the trial court had
      issued a limiting instruction and admonishment to the jury that the evidence of prior domestic violence could
      not be considered as evidence that Starks acted in conformity therewith. Id. at 4. Finally, we determined
      that, even if erroneous, the admission of the 404(b) evidence was harmless as the State presented substantial
      independent evidence of Starks’s guilt such that there was no substantial likelihood that the challenged
      evidence contributed to Starks’s conviction. Id. at 4 n.1.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1501-PC-44 | September 22, 2015           Page 7 of 9
      761 N.E.2d 389, 392 (Ind. 2002). “To demonstrate ineffective assistance of

      counsel for failure to object, a defendant must prove that an objection would

      have been sustained if made and that he was prejudiced by counsel’s failure to

      make an objection.” McKnight v. State, 1 N.E.3d 193, 202 (Ind. Ct. App. 2013).


[8]   As noted by the postconviction court, we determined on direct appeal that,

      notwithstanding counsel’s failure to object to the State’s closing argument and

      waiver of the issue: (1) evidence of Starks’s prior domestic battery conviction

      was admissible pursuant to Evidence Rule 404(b) to show the hostile

      relationship between Starks and Jefferson and his motive for murdering her; (2)

      the trial court’s limiting instruction and jury admonishment cured any potential

      prejudicial impact of the evidence; and (3) in light of the substantial

      independent evidence of Starks’s guilt, any error in the admission of the

      evidence was harmless as there was no substantial likelihood that the

      challenged evidence contributed to the conviction. See Starks, slip op. at 3-4.

      Under the circumstances, even assuming an objection to the State’s remarks

      during closing argument would have been sustained by the trial court, Starks

      cannot demonstrate that he was prejudiced by counsel’s failure to object. Due

      to the substantial independent evidence of Starks’s guilt, especially Funches’s

      eyewitness testimony of the murder, we agree with the postconviction court

      that Starks has not demonstrated a reasonable probability that, but for counsel’s

      failure to object, the result of the proceeding would have been different.


[9]   Starks has not met his burden to show that the evidence, as a whole,

      unmistakably and unerringly points to a conclusion contrary to the

      Court of Appeals of Indiana | Memorandum Decision 82A05-1501-PC-44 | September 22, 2015   Page 8 of 9
       postconviction court’s denial of his petition. Accordingly, we affirm the denial

       of his petition for postconviction relief.


[10]   Affirmed.


       Robb, J., and Pyle, J., concur.




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