7th Circuit agrees evidence was ‘too vague’ to undermine jury

The 7^th Circuit Court of Appeals has upheld an Indiana man’s conviction of rape, finding the evidence presented at trial that linked him to another rape was “too vague” to prejudice the jury.

After his 2012 trial and sentence to 55 years in prison for rape, Ricky Thurston sought to overturn his conviction on the basis he received ineffective assistance of counsel. He pointed to Exhibit 16, which included DNA test results from the cigarette butts found in the park where the rape had occurred. It also made a reference to DNA from that crime matching DNA from another rape for which Thurston was charged.

Thurston’s attorney initially did not notice the reference and so did not object to the exhibit being admitted or published to the jury. However, after the DNA expert finished testifying and two jurors submitted questions related to the exhibit’s mention of the other case, defense counsel argued the exhibit should not be sent back to the jury or should at least be redacted.

The state trial court overruled the attorney’s objection and denied his motion for a mistrial.

Thurston appealed, but the Court of Appeals of Indiana affirmed the verdict and the Indiana Supreme Court denied review.

Turning to the federal courts, Thurston filed a habeas petition pursuant to 28 U.S.C. § 2254, raising the same ineffective assistance claim. Although the Southern Indiana District Court denied the petition, it acknowledged the question of whether the admission of the exhibit prejudiced Thurston “is a close call” and issued a certificate of appealability.

Before the 7^th Circuit, Thurston again claimed the Indiana appellate court did not reasonably apply the ineffective counsel standard established in Strickland v. Washington, 466 U.S. 668. The Court of Appeals of Indiana had concluded the reference in the exhibit was “too vague as to the nature of any prior criminal activity to support the forbidden inference that Thurston must have raped T.K. because he had been accused of raping another.”

The 7th Circuit agreed in Ricky J. Thurston v. Frank Vanihel, 21-1761.

“… The Court of Appeals explicitly weighted ‘the vagueness of the isolated reference at issue, the trial court’s instructions to the jury, and the other evidence presented at trial,’ before concluding that its ‘confidence in the jury’s verdict [w]as no not undermined,” 7th Circuit Senior Judge Joel Flaum wrote. “Contrary to Thurston’s position, the opinion shows that the Indiana Court of Appeals engaged in the holistic review envisioned in (Wong v. Belmontes, 558 U.S. 15, 26 (2009)).

“The Court of Appeals explicitly weighted ‘the vagueness of the isolated reference at issue, the trial court’s instructions to the jury, and the other evidence presented at trial,’ before concluding that its ‘confidence is the jury’s verdct [w]as no not undermined.’ Contrary to Thurston’s position, the opinion shows that the Indiana Court of Appeals engaged in the holistic review envisioned in Wong, 558 U.S. at 26. “