Jackson v. State

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 168
_________________________________________________________
THE UTAH COURT OF APPEALS
HENRY LOUIS JACKSON,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Per Curiam Decision
No. 20130357-CA
Filed July 25, 2014
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 110918677
Henry Louis Jackson, Appellant Pro Se
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
Before JUDGES STEPHEN L. ROTH, JOHN A. PEARCE, and
RUSSELL W. BENCH.1
PER CURIAM:
¶1 Henry Louis Jackson appeals the trial court’s order granting
the State’s motion to dismiss his petition for postconviction relief.
We affirm.
¶2 On appeal, Jackson asserts that the trial court erred in
dismissing two claims of ineffective assistance of trial and appellate

Jackson v. State
2. Jackson also asserts briefly that the trial court erred when it
dismissed several other claims as barred. He did not identify those
claims or argue specifically about how the court erred in dismissing
them. Accordingly, we do not reach this issue because it is
inadequately briefed. See Utah R. App. P. 24 (setting forth briefing
standards); Allen v. Friel, 2008 UT 56, ¶ 16, 194 P.3d 903 (stating that
“[w]e cannot rule on an issue that has been merely mentioned and
not briefed in any way”).
20130357-CA 2 2014 UT App 168
counsel. First, he challenges a jury instruction regarding self-2
defense and the State’s burden of proof and asserts that trial and
appellate counsel were ineffective for failing to raise this issue.
Second, he argues that the trial court committed structural error by
preventing Jackson from testifying to present evidence of self-
defense and that trial and appellate counsel were ineffective for
failing to raise the issue. Although Jackson asserts trial counsel’s
ineffectiveness in these issues, because he was represented by
different counsel on direct appeal, to reach the issues he must show
that appellate counsel was ineffective for failing to raise them on
direct appeal. See Utah Code Ann. § 78B-9-106(1)(c) (LexisNexis
2012); Kell v. State, 2008 UT 62, ¶ 21, 194 P.3d 968. To establish
ineffective assistance of appellate counsel, Jackson must show that
an overlooked issue was “obvious from the trial record and . . .
probably would have resulted in a reversal on appeal.” Lafferty v.
State, 2007 UT 73, ¶ 39, 175 P.3d 530. He has not met his burden.
¶3 Jackson asserts that trial counsel was ineffective because
counsel failed to object to a self-defense jury instruction that did
not clearly express the burden of proof. To prevail, this alleged
“failure” must be obvious from the trial record. See id. However, it
appears that Jackson’s trial counsel was the proponent of the
identified instruction and successfully included it in the jury
instructions over the State’s objection. Accordingly, Jackson’s
characterization of the issue is not obvious from the trial record.

Jackson v. State
3. Jackson does not adequately brief a challenge to the evidentiary
ruling under the standards of rule 404(b) of the Utah Rules of
Evidence. Accordingly, he has not shown that the evidentiary
ruling was error.
20130357-CA 3 2014 UT App 168
¶4 Furthermore, the issue would not have resulted in reversal
on direct appeal because the jury instructions correctly stated that
the burden of proof beyond a reasonable doubt remained with the
State. “Jury instructions must be evaluated as a whole to determine
their adequacy.” State v. Garcia, 2001 UT App 19, ¶ 13, 18 P.3d 1123.
“[A]s long as the ‘trial court’s instructions constituted a correct
statement of the law’ the instructions are upheld.” Id. (quoting State
v. Knoll, 712 P.2d 211, 215 (Utah 1985)). Although the jury
instruction challenged here did not use the language Jackson
suggests in his petition, the instruction correctly stated the law and
burden of proof, especially when considered with other
instructions setting forth the elements of the crimes charged and
the State’s burden to prove the elements beyond a reasonable
doubt. The trial court made clear that Jackson did not bear the
burden to establish self-defense and that “if there was a reasonable
doubt as to whether [the] defendant did or did not act in self-
defense, then the jury should acquit.” State v. Knoll, 712 P.2d 211,
215 (Utah 1985).
¶5 Jackson also argues that the trial court inappropriately
prevented him from testifying and that trial and appellate counsel
were ineffective for failing to raise the issue. Jackson decided not to
testify at trial to avoid the introduction of his prior conviction for
murder as impeachment evidence. He asserts that the trial court
erred in ruling that the evidence of his prior conviction would be
admissible if he testified and that this ruling interfered with his3
right to present a defense.
¶6 Utah appellate courts have rejected arguments like Jackson’s
that a trial court’s evidentiary ruling forced a choice not to testify
and thus deprived him of due process. See State v. Gentry, 747 P.2d

Jackson v. State
4. To the extent that Jackson raises other issues, we determine them
to be without merit and do not address them further. State v. Carter,
776 P.2d 886, 888 (Utah 1989) (“[T]his court need not analyze and
address in writing each and every argument, issue, or claim raised
and properly before us on appeal. Rather it is a maxim of appellate
review that the nature and extent of an opinion rendered by an
appellate court is largely discretionary with that court.”).
20130357-CA 4 2014 UT App 168
1032, 1036 (Utah 1987); State v. Kirkwood, 2002 UT App 128, ¶ 15, 47
P.3d 111. Here, similar to those cases, Jackson
“misconstrues the nature of the constitutional right
in question. The Constitution affords an accused a
choice: he may refuse to become a witness, or he may
elect to take the witness stand and testify in his own
behalf. . . . [Jackson] having exercised his
constitutional right to remain silent and not testify,
cannot now be heard to complain that the court
forced the choice upon him and thereby denied him
due process.”
Kirkwood, 2002 UT App 128, ¶ 15 (quoting Gentry, 747 P.2d at 1036).
Because Jackson’s argument has been rejected, neither trial nor
appellate counsel were ineffective in failing to raise the issue.
Parsons v. Barnes, 871 P.2d 516, 525 (Utah 1994) (holding that the
failure to raise a futile issue does not constitute ineffective
assistance of counsel).
¶7 Affirmed.4