Baer v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana

Thomas C. Hinesley Kelly A. Miklos
Joanna Green Deputy Attorney General
Deputy Public Defenders Indianapolis, Indiana
Indianapolis, Indiana

In the FILED
Jan 26 2011, 10:30 am

Indiana Supreme Court CLERK
_________________________________ of the supreme court,
court of appeals and
tax court

No. 48S00-0709-PD-362

FREDRICK MICHAEL BAER,
Appellant (Petitioner below),

v.

STATE OF INDIANA,
Appellee (Respondent below).

_________________________________

Appeal from the Madison Superior Court, No. 48D01-0805-PC-126
The Honorable Thomas Newman Jr., Special Judge
_________________________________

On Appeal from the Denial of Petition for Post-Conviction Relief
_________________________________

January 26, 2011

Shepard, Chief Justice.
A jury found Fredrick Michael Baer guilty of two counts of murder and sentenced him to
death. In doing so, it rejected his request for a verdict of guilty but mentally ill. We affirmed on
direct appeal. Baer then sought post-conviction relief, which the trial court denied. On appeal
from that denial he argues ineffective assistance of trial and appellate counsel, that his death
sentence violates the Eighth Amendment of the U.S. Constitution, and that the trial judge erred in
rejecting his guilty but mentally ill plea. We affirm the post-conviction court.
 Facts and Procedural History

Fredrick Michael Baer saw Cory Clark outside her duplex as he passed in his car, turned
around, and went back to her home. He entered Clark‘s apartment after asking to use the phone
to call his boss. He intended to rape Cory Clark, but after exposing her vagina decided against it
for fear of contracting a disease. Realizing she could identify him, he cut her throat with a
foldable hunting knife. Upon seeing what Baer was doing, four-year-old Jenna Clark ran from
the room, but Baer caught her and cut her throat to avoid her identifying him. (PCR Ex. E at 2.)

Baer was charged with two counts of murder and various other offenses. The court
entered pleas of not guilty on all counts. Baer subsequently moved to withdraw his not-guilty
pleas and instead to plead guilty but mentally ill (GBMI). The prosecution objected. The court
appointed two mental health experts to examine Baer. After considering their reports, the court
rejected Baer‘s proposed GBMI plea, reasoning that although both experts concluded Baer was
mentally ill, neither report sufficiently stated he was mentally ill at the time of the crime. (Trial
Tr. at 172–73, 223.)

Both the prosecution and the defense made clear their intended strategies during jury
selection. The defense previewed its case as one in which it would only argue for the jury to find
Baer mentally ill, not that he had not committed the crimes. (Trial Tr. at 369–70.) In response to
the prosecutor‘s concerns raised in a bench conference, Baer‘s counsel also stated that the
appellate consequences of a GBMI verdict coupled with a death sentence were unclear. (Trial
Tr. at 435.) This was the first time either side raised this issue. Baer v State, 866 N.E.2d 752,
760 (Ind. 2007).

Throughout jury selection, the prosecutor referred to these appellate uncertainties, saying
for example, ―The law is not clear in this state on whether we can execute somebody who‘s
guilty but mentally ill. The jury makes a finding of guilty but mentally ill. It may happen. It
may not. Our Supreme Court has not decided that case yet.‖ (Trial Tr. at 649.) He frequently
stated or implied that finding Baer guilty but mentally ill would mean concluding that he did not
know the wrongfulness of his actions, which is not an element of GBMI but is required for

2
insanity. (Trial Tr. at 386, 494–95, 924–26, 937, 941–43.) The prosecutor also told the jury that
the legislature might someday make parole available to defendants sentenced to life without
parole, though he made clear that this was not presently the case. (Trial Tr. at 920–21.) Finally,
in qualifying jurors for a death penalty trial, he inquired about the ability to sentence Baer to
death very directly, asking one juror, ―Do you have the strength to tell that man, that defendant,
the guy with the striped shirt on . . . you killed these two people and you should forfeit your life
for that. Something you could do?‖ (Trial Tr. at 568.)

During trial, Baer‘s defense focused almost entirely on convincing the jury he suffered
mental illness at the time of the crime. All the expert witnesses who testified, whether called by
the defense or the court, concluded that Baer suffered from mental illness. (Trial Tr. at 1779,
1902, 1909, 1929–30; PCR App. at 345.) In closing argument, the prosecution compared mental
illness to self-defense as an ―excuse‖ to evade responsibility for Baer‘s actions and continuing to
mention wrongfulness as something which the jury should consider. (Trial Tr. at 2055, 2113–
14.)

The jury found Baer guilty on all counts and rejected his GBMI request. During the
penalty phase, it considered the aggravating and mitigating circumstances and recommended a
death sentence, finding that the State had proven all five charged aggravators and that they
outweighed the mitigating circumstances. (PCR App. at 328.) The court sentenced Baer to
death for the two murders.

Baer‘s appeal asserted (1) prosecutorial misconduct; (2) erroneous admission of recorded
telephone calls from jail; (3) trial court failure to comply with proper procedures in handling
prospective jurors; and (4) inappropriateness of the death sentence. Baer, 866 N.E.2d at 755.
Baer‘s prosecutorial misconduct claims focused on the prosecutor‘s attempt ―to condition the
jury to consider the effect that guilty but mentally ill verdicts might eventually have on the
execution of a death sentence.‖ Id. at 755–56. Extensively quoting the record, we concluded
that because the defense first raised any appellate uncertainty the prosecutor did not act
improperly in his ―responding and presenting argument in order to resist the defense‘s strategy of
gaining appellate advantage‖ Id. at 761.

3
 Baer‘s subsequent challenge in post-conviction totaled 103 allegations. (PCR App. at
329–39, 521–23.) In short, these covered the following areas: prosecutorial misconduct,
structural errors in the trial judge‘s rejection of Baer‘s GBMI plea and failure to correct the
alleged prosecutorial errors, ineffective assistance of appellate counsel, ineffective assistance of
trial counsel, cruel and unusual punishment based on Indiana‘s method of execution, and a
challenge to Baer‘s death sentence based on being mentally ill. (PCR App. at 329–39.)

Baer presented the PCR court with additional expert and lay testimony about his mental
illness. This included a youth counselor who worked with him at a school for juveniles with
criminal histories, an ex-wife who had known him most of his life, and a fellow prisoner, all of
whom testified about his mental illness, notably his auditory hallucinations. (PCR Tr. at 86–89,
136, 154, 182, 187.) None of these witnesses had testified at trial. The PCR court did not
consider the prisoner‘s testimony because rather than ―previously undiscovered evidence‖ under
Ind. Code § 35-50-2-9(k) (2008), he was simply a witness about whom Baer did not tell defense
counsel. (PCR App. at 349–50.) The PCR court determined that the other witnesses largely
duplicated the evidence presented at trial, thus failing to undermine confidence in the jury‘s
rejection of the GBMI verdict. (PCR App. at 345.)

In rejecting Baer‘s prosecutorial misconduct, structural error, and method of execution
claims, the PCR court found these arguments foreclosed because he had not raised them at trial
or on direct appeal. (PCR App. at 340, 348.) As for Baer‘s claim of ineffective assistance of
trial and appellate counsel, the PCR court reasoned that the PCR evidence about mental illness
failed to undermine confidence in the verdict or Baer‘s sentence. (PCR App. at 341–48.)

The PCR court rejected Baer‘s constitutional challenge to the death penalty as applied to
mentally ill defendants, saying it was ―procedurally defaulted‖ in light of the fact that the U.S.
Supreme Court‘s precedent has not changed since Baer‘s 2005 trial and Baer had made this
argument first on PCR. (PCR App. at 351–52.) Baer argued that Kennedy v. Louisiana, 554
U.S. 407 (2008), opened the door to such a challenge, but the court rejected this argument

4
because Kennedy involved the Court‘s rejection of the death penalty for a class of crimes, not a
class of criminals as in prior relevant cases. (PCR App. at 351–52.)

Because this is an appeal from post-conviction determination on a sentence of death, we
have exclusive jurisdiction. Ind. Post-Conviction Rule 1(7). In post-conviction proceedings, we
will reverse a trial court‘s findings and judgment only upon a showing of clear error in a factual
determination or error of law. Helton v. State, 907 N.E.2d 1020 (Ind. 2009).

I. Guilty But Mentally Ill

Baer‘s various GBMI strategies sought an alternative verdict available when a defendant
suffers from mental illness or deficiency but nonetheless remains capable of discerning right
from wrong. Ind. Code § 35-36-2-3 (2008). ―Mentally ill‖ for these purposes means ―having a
psychiatric disorder which substantially disturbs a person‘s thinking, feeling, or behavior and
impairs the person‘s ability to function; ‗mentally ill‘ also includes having any mental
retardation.‖ Ind. Code § 35-36-1-1 (2008).

The difference between guilty and guilty but mentally ill does not compel a difference in
sentencing. Ind. Code § 35-36-2-5(a) (2008 & Supp. 2010). When a court enters a verdict of
GBMI, the defendant must be psychiatrically evaluated before sentencing. Ind. Code § 35-36-2-
5(b). Then, when the Department of Correction receives the defendant as a prisoner, he is
further evaluated and treated in a manner as indicated by the mental illness. Ind. Code § 35-36-
2-5(c). This treatment may be done by the Department of Correction or the Division of Mental
Health and Addiction, either during imprisonment or during defendant‘s probation. Ind. Code
§ 35-36-2-5(c) & (d).1

1
If a mentally ill prisoner is diagnosed while incarcerated rather than on a GBMI verdict, the Department
of Correction must provide for the prisoner‘s care. Ind. Code § 11-10-4-2 (2008). Baer had received
―very substantial antipsychotic treatment since he‘s been incarcerated‖ aimed at his schizophrenia
symptoms. (PCR App. at 278.) ―In fact, almost as soon as he was incarcerated, they started treating him
with antipsychotic medications.‖ (PCR App. at 290.)

5
 Baer never argued that he was insane or that he was otherwise not guilty. (Appellant‘s
Br. at 14.) Judge Spencer having declined to accept Baer‘s pretrial plea of guilty but mentally ill,
Baer‘s lawyers emphasized to the jury that he was mentally ill. The guilt phase of Baer‘s trial
thus determined only which of the two possible versions of guilty verdicts should be entered.

The trial court‘s decision to decline Baer‘s plea of GBMI was available as an issue for
direct appeal. It is therefore barred as a freestanding claim in post-conviction. Whether it
reflects on the effectiveness of his lawyers we address below.

II. Baer’s Trial Counsel Did Not Perform Ineffectively.

To establish a violation of the Sixth Amendment right to effective assistance of counsel,
the defendant must show that (1) counsel‘s performance fell below an objective standard of
reasonableness based on prevailing professional norms; and (2) there is a reasonable probability
that, but for counsel‘s errors, the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687 (1984). When analyzing such claims, we begin with the
presumption that counsel was effective. Autrey v. State, 700 N.E.2d 1140 (Ind. 1998).

Although the performance prong and the prejudice prong are separate inquiries, failure to
satisfy either prong will cause the claim to fail. French v. State, 778 N.E.2d 816 (Ind. 2002). If
we can easily dismiss an ineffective assistance claim based upon the prejudice prong, we may do
so without addressing whether counsel‘s performance was deficient. Wentz v. State, 766 N.E.2d
351 (Ind. 2002).

As with other aspects of Baer‘s petition for post-conviction relief, the performance of his
lawyers is implicated in a good many of the 103 identifiable contentions. We have considered
all of these, but discuss only those that seem the weightiest.

6
 A. Timely and Comprehensive Mental Health Evaluations

Baer asserts that his ―trial counsel failed to obtain timely and comprehensive evaluations
in a case where mental health was the pivotal issue.‖ (Appellant‘s Br. at 44.) Baer‘s theory is
that he suffers from ―cognitive impairments, substance-induced psychotic disorder, and
schizotypal, paranoid, and borderline personality disorders . . . which substantially impaired his
ability to conform his conduct to the law at the time of the crime and are extreme mental
disturbances[,]‖ and the jury was unaware that Baer had brain damage and the ―biopsychosocial
causes of his many personality disorders.‖ (Appellant‘s Br. at 44.) Counsel asserts that there is a
―reasonable likelihood that, had the jury heard the evidence, it would have found Baer GBMI or,
at a minimum, voted against death.‖ (Appellant‘s Br. at 47.)

The State, by contrast, points to trial counsel‘s substantial work investigating, preparing,
and presenting evidence of Baer‘s background and mental health. (Appellee‘s Br. at 51–53.) It
says Baer‘s post-conviction evidence is substantially cumulative of the testimony and opinion
presented at trial, his experts were qualified and judiciously chosen, and that these experts used
appropriate and reliable methodology. (Appellee‘s Br. at 51–53.)

Trial counsel hired Dr. George Parker to render a psychiatric evaluation to determine
whether Baer had any existing symptoms of mental illness and ascertain what treatment was
needed. (Trial Tr. at 1774–75.) Dr. Parker found that Baer ―had a history of some significant
drug issues[,]‖ including methamphetamine, cocaine, inhalant dependence, and marijuana abuse.
(Trial Tr. at 1778.) These issues began in his adolescent years and continued into his adult years.
(Trial Tr. at 1778.) Dr. Parker noted that Baer‘s substance abuse ―may well have caused
significant changes to [his] brain.‖ (Direct Appeal App. at 1551.)

At trial, Dr. Mark Cunningham discussed some of Baer‘s family background and certain
risk factors. He discussed Baer‘s prenatal and perinatal difficulties including his mother having
cancer while pregnant, drinking while pregnant, and Baer being malnourished during the first
three to six months of his life. (Trial Tr. at 2277, 2305–06, 2308–11.) Dr. Cunningham detailed
alcohol abuse in Baer‘s family history including by his parents during his childhood. He testified

7
extensively about Baer‘s family, including the number of men his mother bore children with, the
multiple family members who were victims of domestic violence, and the many who had
psychological disorders. (Trial Tr. at 2288–92, 2341–44, 2347–68.) Dr. Cunningham also
testified at length about what he referred to as ―toxic parenting.‖ (Trial Tr. 2347–68.) He
detailed Baer‘s poor school performance and struggles with ADHD as well as several head
injuries suffered during his youth. (Trial Tr. at 2316–28.) Cunningham also extensively
discussed Baer‘s abuse of inhalants, alcohol, methamphetamine, and other substances. (Trial Tr.
at 2328–41, 2390–92.) Trial counsel did not directly ask whether Baer met Indiana‘s statutory
definition of mental illness or the statutory mitigators related to his mental health, but
Cunningham did say that Baer was ―extraordinarily damaged.‖ (Trial Tr. at 2410.)

At post-conviction, Dr. Philip Harvey, a neuropsychologist with a specialty in psychosis,
performed a thorough neuropsychological examination on Baer and determined that there was no
evidence Baer was malingering. (PCR Tr. at 275–76.) He diagnosed Baer with persisting
dementia, most likely the result of his substance abuse, including methamphetamine and
inhalants. (PCR Tr. at 274–78.) Dr. Harvey diagnosed Baer with substance-induced psychosis,
a disorder not dependent on Baer taking drugs, but rather persisting long after the discontinuation
of substance abuse. (PCR Tr. at 289.) Baer contends the ―combination of these illnesses meant
Baer was under an extreme mental or emotional disturbance at the time of the crime which
affected his ability to conform his conduct.‖ (Appellant‘s Br. at 45.)

Dr. George Savarese, a licensed clinical social worker, also testified at PCR. He
explained that Baer‘s mental illnesses were the result of years of abuse, saying that Baer lacked a
strong father-figure and experienced an unduly enmeshed relationship with his mother and a
turbulent relationship between his parents—all which led to an emotional defense mechanism
known as ―splitting.‖2 (PCR Tr. at 377, 387–88, 391, 436.) Dr. Savarese concluded that Baer
was under extreme mental/emotional disturbance at the time of the crime, but could understand
his conduct though ―he could not control his behavior.‖ (PCR Tr. at 444.)

2
According to the testimony on post-conviction review, splitting is an emotional defense mechanism
where people see things as completely black and white with no grey areas. (PCR Tr. at 391.)

8
 Baer cites Prowell v. State, 741 N.E.2d 704, 714 (Ind. 2001), for the notion that ―failure
to retain an appropriate mental health expert in a timely manner and provide that expert with
essential information is ineffective assistance of counsel.‖ (Appellant‘s Br. at 44.) This is
obviously correct, but unlike Prowell‘s lawyers, Baer‘s counsel did more than ―rely on the good
graces of the Circuit Court judge not to put [Baer] on death row.‖ Prowell, 741 N.E.2d at 715.
Baer‘s counsel enlisted their own experts who were able to help them establish a relationship and
acquire useful information to convey at trial. Moreover, Dr. Parker and Dr. Cunningham were
not badly chosen or lacking in qualification (indeed trial counsel testified at post-conviction that
they had a strategy for their selection), and Baer has not cast any particular doubt about their
methodology or demonstrated that the results of their examinations and assessments were
unreliable. The PCR court was warranted in concluding that the evidence by additional experts
was substantially cumulative of the testimony and opinion presented at trial. The expert
testimony and quality of evidence does not appear to be more credible or more deserving of
weight than the testimony offered on mental issues at trial.

We hold that trial counsel‘s performance was not deficient in this respect.

B. Trial Counsel’s Attempt to Plead GBMI

Baer contends that trial counsel‘s attempt to plead GBMI was ineffective because of
counsel‘s failure to know the law and failure to present available evidence in support of the plea.
(Appellant‘s Br. at 47–50.)

Baer says that his lawyers did not know the law relevant to GBMI and the death penalty.
(Appellant‘s Br. at 48.) Specifically, he contends that counsel did not know the holding of
Harris v. State, 499 N.E.2d 723 (Ind. 1986), or that there was a statute for GBMI. (Appellant‘s
Br. at 48.) The State contends that ―trial counsel held an accurate view and interpretation on the
current state of the law regarding GBMI and the death penalty.‖ (Appellee‘s Br. at 58.)

Trial counsel discussed both Harris and Prowell with the court during the two hearings on
Baer‘s GBMI plea. (Trial Tr. at 18384.) It seems that the current debate focuses on the parties‘

9
contentions before (and during) trial about whether a GBMI defendant might be ineligible for the
death penalty or avoid death because a formal finding of GBMI might be a winning mitigator in
a penalty phase or on appeal. The latter was among the prosecutor‘s objections to a GBMI
judgment either by plea or jury finding.

Baer has failed to show that trial counsel‘s knowledge of the law led to any confusion or
mistaken understanding of a GBMI plea by the trial court. As for whether counsel were deficient
in supplying enough mental health evidence to persuade the judge to accept his GBMI plea, it is
plain that counsel believed there was adequate evidence to support such a finding, ―an abundance
of evidence that there was mental illness in Mr. Baer‘s past,‖ as counsel testified during post-
conviction proceedings. (PCR Tr. at 59–60.)

The heart of the current contention is that had counsel called live witnesses and used
more of them, rather than submitting the experts‘ written reports, Judge Spencer would have
permitted a plea of GBMI. The written reports reflect some disagreement among the experts
about the impact of Baer‘s illness on him at the time of the crime. In light of that and given the
strategic advantage both sides sought in gaining or preventing a GBMI finding, we think Judge
Spencer was right to disallow the plea and that he would not have acted otherwise had trial
counsel proceeded the way Baer says they should have.

C. Failure to Seek a Continuance

Baer argues that trial counsel violated his Sixth Amendment rights by failing to ensure
they had adequate time to prepare. (Appellant‘s Br. at 51.) His theory is that requesting more
time may have avoided the problems that occurred in Dr. Davis‘ testimony, during which he
could not locate a particular record during cross-examination and appeared disorganized.
(Appellant‘s Br. at 5253.)

Lead counsel Jeffrey Lockwood began representing Baer just four months before jury
selection. (Direct Appeal App. at 1155.) Baer believes lead counsel should have requested a
continuance because Lockwood did not have ample time to develop and litigate a respectable

10
trial strategy, pointing to the fact that former lead counsel Douglas Long was not certain he
would be ready for the trial in April 2005 because Long felt as though he was working on the
case alone. Baer contends that the mitigation specialist was overwhelmed with the records in the
case and further explains that more time ―may have avoided the problems during Dr. Davis‘s
testimony where he could not locate a particular record during cross-examination and appeared
disorganized.‖ (Appellant‘s Br. at 53.)

Neither of Baer‘s trial lawyers believed they needed a continuance. (Appellant‘s Br. at
52.) Baer acknowledges that his second attorney Bryan Williams, who had been his counsel
from the beginning, had extensive trial experience. (Appellant‘s Br. at 51.) Both lawyers, of
course, met the requirements of Ind. Criminal Rule 24(B), and Lockwood had a great deal of
experience in capital trials. (PCR Tr. at 20, 51–52.)

We are not convinced that some momentary fumbling to locate certain documents during
cross-examination is sufficient to demonstrate deficient performance.

D. Failure to Conduct Adequate Jury Selection

Baer asserts that several jurors susceptible to challenge for cause went unchallenged. In
particular, he asserts that trial counsel failed to object to the prosecutor‘s misstatements and
failed to educate the jury appropriately about relevant mitigation, the meaning of life without
parole, and other issues. (Appellant‘s Br. at 53–57.)

For example, Baer says his counsel did not adequately explore jurors‘ ability to follow
the law. (Appellant‘s Br. at 53.) Baer does not direct us to any particular place in the record
where more questioning was required, and the record is full of defense counsel‘s thorough
questioning on the potential jurors‘ ability to follow the law. (Trial Tr. at 430, 435–38, 441–43,
511–12, 515, 526–27, 593–94, 597–602, 787–90, 834–36, 840–42, 845, 965–69, 973–75, 977–
80, 1025.)

11
 Baer does argue that jurors Brown, Criss and Lewis were ―automatic death penalty‖
jurors. (Appellant‘s Br. at 54.)

During voir dire, juror Brown indicated that he would consider mitigating circumstances.
(Trial Tr. at 769.) When Lockwood asked, ―I want to have a chance with you for a vote of life.
Do I have that chance with you,‖ Brown responded ―[y]es.‖ (Trial Tr. at 790.) Juror Criss
generally disfavored the death penalty but felt that it could be appropriate in some cases. (Trial
Tr. at 658–59.) Further questioning revealed that juror Criss would base her decision on all the
evidence. (Trial Tr. at 659–60.) Juror Lewis stated that he would decide the case based on the
evidence. (Trial Tr. at 386.) Not even the most tortured reading of the transcript suggests that
juror Lewis was an automatic death penalty juror.

Baer also argues that jurors Criss, Hartman, Zurcher, and Huett were ―resistant to
mitigation‖ because they checked a box on their juror questionnaires that stated they
―[d]isagree[d] strongly‖ with the statement: ―A person‘s upbringing and background are relevant
to the punishment he should receive if he is committing a crime.‖3 (Appellant‘s Br. at 54.) Baer
also argues that his trial counsel did not discuss mitigation at all during voir dire and that there
should have been an extensive discussion.

Counsel‘s discussion with Criss, Hartman, Zurcher, and Huett refutes the notion that they
were mitigation resistant. (Trial Tr. at 660, 752–57, 784, 786–90, 919–21, 938–40, 973, 978,
980–81.) The juror questionnaires present multiple messages about the jurors‘ feelings on
mitigation. Jurors Hartman, Huett, and Zurcher all checked a box stating: ―Both a person‘s
background and the nature and details of a particular crime should be considered in deciding
appropriate punishment.‖ Jurors Huett, Criss, and Hartman all checked a box on their
questionnaires stating: ―I would seriously weigh and consider the aggravating and mitigating
factors in order to determine the appropriate penalty in this case.‖ Those statements suggest that
these jurors were open to mitigation. The jurors‘ answers during voir dire do not demonstrate
that counsel were deficient in not challenging them for cause.

3
Our review of the record indicates that juror Hartmann checked the box ―[d]isagree somewhat‖ rather
than ―[d]isagree strongly.‖ (Court‘s Ex. 3.) (Exhibits Vol. VIII).

12
 Baer asserts that his trial counsel had a complete ―failure to discuss issues of mitigation
with prospective jurors.‖ (Appellant‘s Br. at 54.) The record, however, shows just the opposite.
Baer‘s trial counsel believed that mental illness was the strongest mitigating factor in this case
and, consequently, they discussed mental illness extensively during voir dire. We conclude that
trial counsel adequately conducted jury selection.

E. Trial Counsel’s Presentation of GBMI at Guilt Phase

Baer asserts ―trial counsel were ineffective in their investigation and presentation of
evidence to support a guilty but mentally ill verdict.‖ (Appellant‘s Br. at 57.) His contentions are
counsel failed to present the jury with additional corroborating evidence about Baer‘s mental
health, failed to withdraw the insanity defense, and failed to offer a preliminary instruction on
GBMI that tracked the applicable statute. (Appellant‘s Br. at 58.)

Baer says counsel should have discovered Zola Brown and William Ogden, both of
whom could testify that that he heard voices during the years before the crime. But all three
mental health experts who testified at the guilt phase discussed Baer‘s auditory hallucinations
and all three experts explicitly stated that Baer was mentally ill. (Trial Tr. at 1779–80, 1785–86,
1869–74, 1886–87, 1894, 1909, 1926, 1929–30, 1945, 1947–53, 1973–74, 1978–79, 1992–93.)
The lack of testimony by two lay witnesses who could corroborate the facts used by the experts
does not establish ineffective performance.

As for failing to withdraw the insanity defense, the Indiana Code provides only two ways
that a defendant can be found GBMI. First, a defendant may seek to plead GBMI if that plea is
voluntary and supported by an adequate factual basis. Ind. Code §§ 35-35-1-2 & -3 (2008).
Second, a jury can return a GBMI verdict if the defendant interposes the insanity defense. Ind.
Code § 35-36-2-3(4) (2008). The instant argument is that counsel should have tried to create a
third way by asking to pursue GBMI without a plea of insanity in place.

13
 Taking the road authorized by the Code conferred multiple advantages. Not the least of
these was defense counsel‘s ability to play off against the prosecutor‘s contention that Baer was
not taking responsibility. Trial counsel frequently told the jury that Baer was not insane and was
not using the insanity defense. (Trial. Tr. at 423, 426, 590–91, 641–42, 706–08, 710, 721, 783,
844–45, 910–11, 965, 1023, 1031–33.)

As for whether a preliminary instruction on GBMI was required, failure to tender one
was not ineffective assistance of counsel because there was a final instruction given on GBMI.
Phillips v. State, 550 N.E.2d 1290, 1296 (Ind. 1990); Everly v. State, 271 Ind. 687, 691–92, 395
N.E.2d 254, 257 (1979).

The post-conviction court was right to deny Baer‘s claims on these points.

F. Cross-Examination of Dr. Evans

Dr. Evans is a toxicologist who testified about a sample of blood collected after Baer‘s
arrest and tested by AIT Laboratories about thirteen months later. (Trial Tr. at 1616, 1621,
162347.) Twelve days before trial, the State disclosed the results. The test revealed some
marijuana usage and ―absolutely zero‖ for all other drug classes, including methamphetamine.
(Trial Tr. at 163031, 1635.)

Dr. Evans testified that there was no methamphetamine, amphetamine
(methamphetamine‘s break-down product), or any other drug of abuse in the blood sample taken
from Baer. (Trial Tr. at 1635.) He said that drugs in the blood would have broken down some in
the thirteen months between when the blood was drawn and the testing. (Trial Tr. at 1639.)
During cross-examination, Dr. Evans said that if Baer used 250 milligrams or more of
methamphetamine within thirty-six hours of the blood draw, methamphetamine or amphetamine
would have shown up in the blood analysis. (Trial Tr. at 164244.) He said that he did not
know when Baer had last used methamphetamine and that if Baer had a small dose on the day of
the crime he would not have been able to detect any methamphetamine or amphetamine in the
blood sample. (Trial Tr. at 1643.) He did say Baer could not have taken a gram or more the day

14
of the crime. The prosecution later used this testimony to argue that Baer was malingering about
his drug abuse around the time the crime was committed. (Trial Tr. at 2070.)

At post-conviction, Dr. Evans testified that the best approach is to have blood collected at
or near the time of an incident and test it as soon as possible because drugs are chemicals which
break down and blood is not the most conducive environment for preserving chemicals. (PCR
Tr. at 490.) Ultimately, Dr. Evans could not say whether methamphetamine existed in Baer‘s
blood at the time it was collected, only that there was no such substance in his blood when it was
tested. (PCR Tr. at 490.)

The upshot of all this is that Dr. Davis‘s testimony before the jury and his testimony at
PCR were pretty consistent: if Baer had a very small amount of meth in his system on the day of
the crime the tests might not have revealed it, but if he had an amount typical for users or abusers
it would have. If anything, the extra effort by PCR counsel demonstrates that extra effort by trial
counsel would have been fruitless.

G. Using Projection of Gruesome Photos

Baer contends that trial counsel was deficient for failing to object to the projection of the
crime scene photographs on a very large screen. (Appellant‘s Br. at 64–65.) Specifically, he
argues that there could be ―no strategic reason for failing to object to photographs the prosecutor
himself described as ‗horrifying‘‖ and ―[h]ad trial counsel objected to the manner in which the
crime scene photographs were displayed the objection would have been sustained.‖ (Appellant‘s
Br. at 65.)

The photographs in question provided a sense of the location of the crime, and they
corroborated the responding officer‘s testimony about the discovery of the victims‘ bodies, the
testimony of other witnesses who described the crime scene, and the extent of the injuries. (See
Trial Tr. at 117476.) Although the photographs are most unpleasant, they were admissible to
give the jury an understanding of the crime scene and the nature of the crime. See Phillip v.

15
State, 550 N.E.2d 1290, 1299 (Ind. 1990). The photos were also pertinent to the jury‘s task of
assessing Baer‘s level of mental culpability.

The current contention is not about admissibility but about manner of display.
Respectable counsel could take differing views about whether it was more prejudicial to the
defense for jurors to see such photographs on a large screen or to linger over the images while
holding them in their own hands.

H. Did Trial Counsel Fail to Ensure Proper Instructions?

We will reverse a post-conviction court‘s decision regarding ineffective assistance for
failure to object to instructions only if Baer can show that the trial court was compelled as a
matter of law to sustain his objections. Lambert v. State, 743 N.E.2d 719 (Ind. 2001). Similarly,
for claims that different instructions should have been tendered by trial counsel, we will not
reverse if ―the trial court could have properly refused the instruction under applicable law,‖
meaning, that we will not reverse the post-conviction court unless the trial court would have been
compelled by law to give the instruction. Id. at 738–39.

Indiana Code § 35-50-2-9(c)(6) allows the jury to consider in mitigation ―[t]he
defendant‘s capacity to appreciate the criminality of the defendant‘s conduct or to conform that
conduct to the requirements of law was substantially impaired as a result of mental disease or
defect or of intoxication.‖ Jury instruction number eleven parroted this statute, but did not
include the last three words. (Direct Appeal App. at 1324.) Baer argues that instruction eleven
should have ended with the words ―of intoxication.‖ An instruction tendered by Baer with the
intoxication language could have been rejected by the trial court because the evidence showed
that Baer was not intoxicated at the time of the offense. (Trial Tr. at 1257–63, 1627–47, 2404–
05.)

Another challenge relates to an instruction telling the jury that voluntary intoxication was
not a defense and could not be taken into account when determining the mental state required for
conviction. (Direct Appeal App. at 1333–34.) Baer argues that this instruction prevented the

16
jury from considering intoxication as a mitigating factor. (Appellant‘s Br. at 66–67.) This
instruction was a correct statement of the law and was relevant in determining whether Baer
committed his crimes intentionally. As to mitigation, the court told jurors they could consider
―[a]ny . . . circumstances‖ (Direct Appeal App. at 1324) in mitigation and that ―there are no
limits on what factors an individual juror may find as mitigating.‖ (Direct Appeal App. at 1325.)
An objection to the instruction on voluntary intoxication as a defense to the crime would have
been overruled at trial.

Baer also argues that counsel should have objected to an instruction that ―the jury has the
right to accept or reject any or all of the testimony of witnesses, whether expert or lay witnesses
on the questions of insanity or mental illness.‖ (Direct Appeal App. at 1336.) We think it
unlikely that most counsel would have worried much about this mention of insanity. The court
properly instructed the jury on issues of GBMI and insanity. Baer‘s trial counsel told the jury
repeatedly that they were not arguing that Baer was insane. The jury would not have inferred
that Baer was claiming he was legally insane.

Lastly, Baer claims that counsel was ineffective for not offering an instruction stating that
life without parole means life without parole. (Appellant‘s Br. at 68.) The term ―life without
parole‖ consists of ordinary words that can easily be understood by the average person. See
Stevens v. State, 770 N.E.2d 739, 756 (Ind. 2002).

I. Baer’s Eligibility for the Death Penalty

Baer contends that had ―trial counsel competently litigated Baer‘s ineligibility for the
death sentence, there is a reasonable likelihood Baer would not have been sentenced to death‖
because he is mentally ill and therefore ineligible for the death penalty. (Appellant‘s Br. at 69.)
There is no state or federal constitutional bar to executing the mentally ill, Matheny v. State, 833
N.E.2d 454 (Ind. 2005), and counsel acted within the bounds of reasonable performance to
recognize the law on this point.

17
 J. Investigating and Presenting Mitigating Evidence

Baer asserts that trial counsel‘s decision ―not to present any witnesses other than Dr.
Cunningham was not a decision based on a reasonable investigation‖ and therefore is not entitled
to deference because a reasonable investigation would have helped uncover mitigating evidence.
(Appellant‘s Br. at 70.)

Trial counsel Bryan Williams explained the defense team‘s decision:

We had Dr. Cunningham who had spent a substantial amount of
time putting together the entire family history, how certain folks
were related, incidents, and we thought at the time that he was
probably in as good a position as anybody to explain the entire
family history, and we thought he was a very good witness so we
decided to use him exclusively.

(PCR Tr. at 33.) Lead trial counsel Jeffrey Lockwood confirmed this assessment when he
testified at the post-conviction hearing:

I did not feel that we could rely on any of the family members
under all circumstances to be helpful to us. And beyond that, there
weren‘t many other people. And so what we did was we tried to
incorporate in Dr. Cunningham‘s examination all of the things that
he uncovered about social history. I mean we did think about
[calling other witnesses], but we had ample reason in my opinion
to believe that we would not gain ground by calling family
members.

(PCR Tr. at 73–74.) Our review of the PCR transcripts leads us to the conclusion that there were
reasons that an experienced attorney might hesitate to call Baer‘s family members; it was
professionally reasonable not to call additional witnesses.

This case is hardly a case where no mitigating evidence was assembled. Trial counsel
hired a mitigation consultant, and because of her efforts, counsel knew a great deal about the
defendant‘s background, upbringing, and prior mental health problems. (PCR Tr. at 26, 56–57,

18
61–62, 71.) Dr. Cunningham conducted interviews with many of Baer‘s family members and
reviewed Baer‘s records (including school and mental health records) and notes from interviews
with many people from Baer‘s past. (Trial. Tr. at 2253–54, 2264–65.) He testified about many
potential mitigators including previous mental health disorders, diagnoses, and
institutionalizations (Trial Tr. at 2266, 2311, 2313–24, 2374–82, 2387, 2400–03), Baer‘s
extremely troubled family situation (Trial Tr. at 2284, 2288–93, 2337–45, 2347–72, 2409–2410),
Baer‘s extensive history of substance abuse (Trial Tr. at 2284, 2328–32, 2390–93, 2403–05), and
Baer‘s history of neurological problems (Trial Tr. at 2306–11, 2325–28, 2332–36). We find that
Dr. Cunningham‘s testimony presented an abundance of potential mitigating factors to the jury.

As in Woods v. State, 701 N.E.2d 1226 (1998), Baer‘s argument is essentially that
counsel should have done more. In all post-conviction proceedings, the petitioner will always be
able to find some information from his past that was not presented to the jury. Dr.
Cunningham‘s testimony included almost all of the potential mitigators that Baer asserts should
have been better presented to the jury. We do not believe the result of Baer‘s trial would have
been different had the witnesses who testified at the PCR hearing been called at trial.

III. Baer’s Appellate Counsel Was Not Ineffective.

Ineffective assistance of appellate counsel claims generally fall into three basic categories:
(1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.
Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008) (citing Reed v. State, 856 N.E.2d 1189, 1195
(Ind. 2006)). Baer‘s arguments on these points fall into seven categories.

A. Prosecutorial Misconduct

Baer first argues that appellate counsel Mark Maynard was ineffective because he
inadequately presented a claim of prosecutorial misconduct. (Appellant‘s Br. at 33.)

19
 Maynard testified that he intended to present the full range of prosecutorial misconduct
claims on appeal. (PCR Tr. at 515.) He did not categorize the types of comments the prosecutor
made, listing them instead in chronological order because he felt ―they were pretty patent on
their face as to what sort of misconduct each comment was.‖ (PCR Tr. at 514–15.) On appeal,
however, we found that Maynard raised only the prosecutor‘s statements to the jury that finding
Baer GBMI would reduce the chances of him receiving the death penalty. Baer, 866 N.E.2d at
755.4

There are other contentions about Maynard‘s presentation of prosecutorial misconduct
that we now examine, the question being whether it was so badly done as to violate the Sixth
Amendment.

Maynard correctly realized that because trial counsel failed to object to ―virtually all‖
instances of alleged prosecutorial misconduct, an appellate court would review them only for
fundamental error. (PCR Tr. at 514); see also Ortiz v. State, 766 N.E.2d 370, 375 (Ind. 2002). It
is highly unlikely that Baer would have prevailed on any fundamental error claims as respects
prosecutorial misconduct on direct appeal. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002)
(fundamental error is recognized only when record reveals clearly blatant violation of basic and
elementary principles, where the harm or potential for harm cannot be denied, and which
violation is so prejudicial to the rights of the defendant as to make fair trial impossible).

Getting to specific instances, during voir dire the prosecutor did often conflate the
separate concepts of GBMI and insanity by referring to whether Baer could appreciate the
wrongfulness of his actions. (first panel—Trial Tr. at 236–37, 386–92, 396–98, 407; second
panel—Trial Tr. at 464, 469–70, 484, 494; third panel—Trial Tr. at 536.) The ability to
appreciate the wrongfulness of one‘s actions is relevant to an insanity defense but not to a GBMI

4
Baer presents his freestanding claim for prosecutorial misconduct as the lead argument in his brief.
(Appellant‘s Br. at 8.) Maynard clearly raised the issue of prosecutorial misconduct by arguing that the
prosecutor‘s statements on GBMI were inappropriate; it is res judicata by virtue of our opinion in Baer,
866 N.E.2d at 761. We examine it here as it may reflect on his claim about the performance of appellate
counsel. Timberlake v. State, 753 N.E.2d 591, at 597–98 (Ind. 2001); see also Harris v. State, 861 N.E.2d
1182, 1186 (Ind. 2007).

20
verdict, which requires instead that a psychiatric disorder substantially disturb a person‘s
thinking, feeling, or behavior and impair his ability to function. Compare Ind. Code § 35-36-1-1
with Ind. Code § 35-41-3-6(a).

It seems likely that defense counsel consciously chose not to object to the prosecutor‘s
misstatements as part of their general strategy of letting the prosecutor discredit himself. (PCR
Tr. at 32.) At PCR, Williams testified that he had known Prosecutor Cummings for years and
knew he was capable of overstating his case to the jury. (PCR Tr. at 32.) Trial counsel planned
to correctly state the law to the jury when it was their turn, have the judge echo their statement of
the law through the jury instructions, and hope the jury would decide from the contrast that the
prosecutor was not credible. (PCR Tr. at 32.)

Consistent with this approach, defense counsel correctly stated the law in closing
argument:

Let me repeat this for the hundredth time: We are not saying that
Fredrick Michael Baer is insane. I said it to you in jury selection.
Mr. Lockwood said it to you. I‘ve said it to you repeatedly. . . .
Mental disease or defect.

(Trial Tr. at 2105.) And the court‘s instructions correctly stated the law and made it clear that
they took precedence over arguments by counsel on what the law was. (Trial Tr. at 1126, 1130–
31, 2122, 2580.) It was not deficient for Maynard to take a pass on this potential claim.

The prosecutor also spoke equivocally about whether the State could execute a defendant
found GBMI, telling the jury, ―The law is not clear in this state on whether we can execute
somebody who‘s guilty but mentally ill. Our Supreme Court has not decided that case yet.‖
(Trial Tr. at 649.) He made this statement even though we upheld a death sentence of a
defendant found GBMI in Harris v. State, 499 N.E.2d 723, 725–27 (Ind. 1986) (analyzing only
Eighth Amendment and Indiana statutory claims).

Baer‘s appellate ineffective assistance of counsel claim has much in common with his
direct appeal claim about the prosecutor‘s statements and allegations about trial counsel on the

21
same point. Prosecutors and defense counsel alike would have read our opinion in Prowell v.
State, 741 N.E.2d 704, 717 (Ind. 2001), in which we observed that defendants formally found
GBMI ―normally receive a term of years or life imprisonment.‖ We observed that many shared
the view that death was inappropriate for a GBMI defendant. Id. at 718. We set aside Prowell‘s
sentence partly on this basis.

These judicial declarations explained why Baer‘s lawyers, from trial through PCR, have
labored to obtain a GBMI conviction, and why the prosecutors have pushed back at each turn. It
adequately explains why Maynard did no damage in not complaining about the prosecutor‘s
statement to the jury.5

On another front, the prosecutor also discussed during voir dire the possibility that the
legislature might one day change the law on life without parole and allow Baer to receive parole.
(Trial Tr. at 920–21.) The prosecutor nevertheless correctly stated the current law on life
without parole, as did trial counsel. (Trial Tr. at 428, 601, 920.) We rejected this claim on direct
appeal because defense counsel initiated the discussion, so it was not improper for the prosecutor
to respond. Baer, 866 N.E.2d at 760–61.

Baer also argues that the State falsely claimed that Baer refused to accept responsibility
because Baer attempted to plead GBMI. (Appellant‘s Br. at 20.) Baer says that his attempted
GBMI plea should have been ―considered a significant mitigating circumstance‖ and that the
State ―essentially turned a potentially mitigating factor into a nonstatutory aggravating factor.‖
(Appellant‘s Br. at 21–22.)

This statement did not deprive Baer of a fair trial. Baer‘s counsel repeatedly told the jury
that Baer committed these crimes and was not disputing his innocence. The jury knew that Baer

5
About the time of Baer‘s trial, we held that the Indiana Constitution did not forbid death sentences for
defendants who were mentally ill when they committed the murders. Matheney v. State, 833 N.E.2d 454,
457 (Ind. 2005); Baird v. State, 831 N.E.2d 109, 111 (Ind. 2005). Both these decisions noted that the
juries in the respective cases did not find the defendants GBMI. In a dissent to an earlier decision, Justice
Rucker took the position that executing a person suffering a severe mental illness would violate the Cruel
and Unusual Punishment Clause of art. I, § 16, of the Indiana Constitution. Corcoran v. State, 774 N.E.2d
495, 503 (Ind. 2002) (Rucker, J., dissenting).

22
was not attempting to say that he was innocent. The prosecutor was seeking a guilty verdict and
saw Baer‘s attempt to plead GBMI as an attempt to avoid full responsibility for his crimes.
Baer‘s counsel acknowledged that Baer wanted a GBMI verdict because they thought it was
Baer‘s best chance at avoiding the death penalty. This was part of the rhetorical struggle
sensibly waged by both sides.

Baer says his appellate lawyer should have cited as grounds for reversal the prosecutor‘s
repeated inquiries to jurors whether they had the strength of character and the courage to impose
the death penalty if they thought it was the appropriate sentence. He further asked them if they
had the courage of their convictions to stand by that sentence if the trial court polled them after
sentencing. Defense counsel‘s strategy was a mirror image: they attempted to draw out the
prospective jurors who were predisposed to vote for the death penalty in order to strike them
from the jury pool. The prosecutor‘s questions merely allowed him the similar opportunity to
strike jurors who would not vote for the death penalty even if they thought it was warranted.
Trial and appellate counsel both performed reasonably on this point.

Baer also says Maynard should have appealed by citing the fact that the prosecutor told
the jurors the facts of the crime and then told the jury that these facts warranted death.
(Appellants Br. at 24.) Here, too, the defense and the prosecution both found elaborating on the
facts useful in the struggle over whether the sentence should be death. Baer‘s counsel told the
jury ―I‘m telling you right now up front, he committed these crimes. He cut the throat of a
mother. He cut the throat of her four-year-old daughter.‖ (Trial. Tr. at 641.) When the trial
judge questioned the extensive recitation of facts occurring during voir dire, Baer‘s counsel told
the court that he wanted the jury to know the facts as part of a technique called ―stripping.‖6
(Trial Tr. at 875.) Baer‘s appellate counsel could not be ineffective for not raising this argument

6
According to the testimony on PCR, ―stripping‖ involves asking jurors their opinion about a
hypothetical murder of a completely innocent person with no defenses. (PCR Tr. at 617–19.) The idea
seems to be that those jurors who say only death is suitable for the hypothetical defendant would be struck
for cause. (PCR Tr. at 617–19.) Baer‘s counsel apparently decided to use this technique, but used the
facts of Baer‘s actual crimes rather than a hypothetical. (See Trial Tr. at 875–76.) Baer‘s trial counsel
stated ―I‘m happy to go on the record as saying that Mr. Williams and I have thought this case through
and our approach through. It is the exercise of our independent professional judgment to take this tactic
and that we have consulted with our client thoroughly about this.‖ (Trial Tr. at 886.) Uncommon as such
declarations are in capital cases, they seem based in fact.

23
on direct appeal because trial counsel made a reasonable professional judgment to allow the jury
to hear the facts of the case during voir dire.

As for the prosecutor‘s declaration that the facts warranted death, the prosecutor told the
jury during voir dire that the State was seeking justice for the family because they would be
without a mother and a child. (Trial Tr. at 378, 405, 480.) During the penalty phase, he told the
jury it should sentence Baer to death because that was what the family wanted. (Trial Tr. at
2551.) Inappropriate though these comments may have been, we do not think they rendered
Baer‘s trial fundamentally unfair. The trial court ruled that the prosecutor‘s statements at voir
dire did not constitute victim impact evidence but told the prosecutor not to get that close to the
line again. (Trial Tr. at 803–04.) The prosecutor then told the jury he misspoke. This is the sort
of rebuke to the prosecutor that defense counsel likely found helpful.

Baer next contends that his appellate counsel was ineffective for not arguing that his trial
was unfair because the prosecutor disparaged Baer, disparaged his counsel, and disparaged
Baer‘s experts.7 (Appellant‘s Br. at 26–28.) Many of the comments directed at Baer and his
experts were fair comments on the evidence. The comments directed at Baer‘s attorney, when
read in full, are hardly misconduct.

To take a few examples, the prosecutor commented in his closing argument on Baer‘s
demeanor: ―You‘ve got a better look at him then I do because I am over here, but he seems to be
joking around and talking to people in the audience all the time.‖ (Trial Tr. at 2061.) During the
penalty phase, the prosecutor quoted trial counsel‘s opening statement at trial and asked the jury
to consider whether Baer‘s crimes were among ―the worst of the worst.‖ (Trial Tr. at 2513.)
Based on his experience, he thought that they were. (Trial Tr. at 2513.) He conceded that jurors
might think the September 11 terrorist attacks or the Oklahoma City bombing were worse but
asked that they consider the actual facts of Baer‘s murders. (Trial Tr. at 2514.) The prosecutor
then recounted the facts of the murders in graphic detail. (Trial Tr. at 2514.)8 During rebuttal,

7
As characteristic of such statements, Baer points to the prosecutor‘s comment that ―I don‘t think
anybody in this courtroom likes him.‖ (Trial Tr. at 558.)
8
Contrary to Baer‘s argument, the prosecutor did not directly compare Baer to the perpetrators of the
September 11 terrorist attacks or the Oklahoma City bombing. (Trial Tr. at 2513.) He was arguing that

24
the prosecutor referenced the hardships he himself faced while growing up and the time he spent
in jail to argue that Baer was using his own childhood as an excuse that should save him from the
death penalty. (Trial Tr. at 2548–50.) He also briefly mentioned the cost while telling the jury
that the State was not seeking the death penalty haphazardly. (Trial Tr. at 2551.) Each of these
arguments was a response to arguments made by defense counsel. (Trial Tr. at 2540–41, 2525–
30.)

Baer asserts that these various statements violated his Fifth, Sixth, and Fourteenth
Amendment rights. To the extent that any comments directed at Baer, his counsel, or his experts
were misconduct, any impact on the fairness of Baer‘s trial was minimal. Even if taken in the
aggregate, these comments did not affect the outcome of Baer‘s trial.

B. Appropriateness of the Death Penalty

Second, Baer argues that Maynard inadequately challenged the appropriateness of Baer‘s
death sentence. (Appellant‘s Br. at 36–38.) Maynard‘s brief contained only twenty-one lines of
argument on the appropriateness of the death penalty and incorporated other issues in his brief.
(PCR Ex. at 19, 21–22.) He did not argue that Baer‘s mental illness precluded his execution
based on recent holdings from the U.S. Supreme Court limiting the application of the death
penalty. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 421–24 (2008) (defendant who raped
but did not kill a child); Roper v. Simmons, 543 U.S. 551, 568 (2005) (juveniles); Atkins v.
Virginia, 536 U.S. 304, 321 (2002) (mentally retarded).

even though other crimes were worse, that should not preclude the jury from imposing the death penalty
in Baer‘s case. (Trial Tr. at 2513.) Defense counsel also had a chance to respond to this perceived
impropriety, which was their avowed strategy throughout the trial. (Trial Tr. at 2525–47; PCR Tr. at 32.)

Moreover, a prosecutor may respond to the allegations and inferences trial counsel makes even if
the way he responds would otherwise be objectionable. Cooper v. State, 854 N.E.2d 831, 836 (Ind.
2006). Baer‘s trial counsel first brought up the financial burden of execution. (Trial Tr. at 427, 2540–
41.) Both of Baer‘s trial counsel talked about their own families and upbringings as a contrast to Baer‘s
family and upbringing. (Trial Tr. at 2527, 2532, 2544–45.) Then his counsel argued that Baer committed
his crimes because society failed him. (Trial. Tr. at 2532.) The prosecutor‘s comments about his own
rough upbringing was a fair rebuttal to these points made by Baer‘s counsel.

25
 When Indiana law placed capital-sentencing decisions fully in the hands of trial judges,
this Court set aside multiple death sentences by exercise of our power to review and revise
sentences, sometimes finding death ―inappropriate in light of the nature of the offense and the
character of the offender.‖ Ind. Appellate Rule 7(B); see also Ind. Const. art. VII, § 4.
Sentencing is now largely in the hands of juries, and as we observed in Wilkes v. State, 917
N.E.2d 675, 693 (Ind. 2009), we have affirmed sentences in cases much like Baer‘s. Maynard‘s
argument sufficed.

As for whether Maynard should have tried to break new ground, the U.S. Supreme Court
has never held that the U.S. Constitution precludes executing the mentally ill. See Baird v. State,
831 N.E.2d 109, 115–16 (Ind. 2005). In fact, this Court has expressly held that the U.S.
Constitution does not, and we have held, with one dissent, that the Indiana Constitution does
permit the State to execute the mentally ill. See, e.g., Matheney, 833 N.E.2d at 457 (Article I,
Section 16 of the Indiana Constitution); Baird, 831 N.E.2d at 111 (same). These holdings reflect
in part the fact that ―mental illness‖ is a very elastic term. The relative seriousness or mildness
of a defendant‘s illness is well suited to the weighing process that occurs when considering
aggravators and mitigators and not well suited to reliable bright lines that would place a
defendant as eligible or ineligible.

C. Rejection of Baer’s GBMI Plea

Third, Baer says Maynard should have challenged the trial court‘s rejection of his GBMI
plea. (Appellant‘s Br. at 34–36.) He argues that there was a sufficient factual basis for the plea
because two court-appointed mental health experts, Dr. Davis and Dr. Lawlor, both thought Baer
was mentally ill. (Appellant‘s Br. at 35–36; Direct Appeal App. at 1491, 1581.) Although both
trial counsel believed that the court‘s rejection of Baer‘s plea was erroneous, Maynard did not
raise this issue on appeal, apparently because he believed that such a plea required the State‘s
agreement, which it did not give. (PCR Tr. at 23, 60, 510.)

26
 The instant contention largely rests on two statutes. Indiana Code § 35-36-1-1 considers
a person mentally ill if he has ―a psychiatric disorder which substantially disturbs [the] person‘s
thinking, feeling, or behavior and impairs the person‘s ability to function.‖ Indiana Code § 35-
35-1-3 says, ―The court shall not enter judgment upon a plea of guilty or guilty but mentally ill at
the time of the crime unless it is satisfied from its examination of the defendant or the evidence
presented that there is a factual basis for the plea.‖

Baer‘s argument assumes that once a factual basis for a mental illness exists, a trial court
is required to accept a GBMI plea. (See Appellant‘s Br. at 35–36.) The statute does not require
a court to accept a GBMI plea once there is any factual basis for it; instead, it prohibits a court
from accepting a GBMI plea without one. Indeed, we have held that a defendant does not have
an absolute right to a guilty plea and that a trial court may refuse to accept one in the exercise of
sound judicial discretion. Elsten v. State, 698 N.E.2d 292, 295 (Ind. 1998) (discretion not abused
in rejecting a GBMI plea when two court-appointed physicians testified that the defendant was
not mentally ill and a physician commissioned by the defendant disagreed).

Dr. Davis‘s and Dr. Lawlor‘s conclusions were not so ―uncontradicted‖ as Baer claims.
(Appellant‘s Br. at 35–36.) Dr. Davis thought that Baer qualified as mentally ill based on his
methamphetamine addiction. (Direct Appeal App. at 1419.) Although Dr. Lawlor agreed, he did
not think that ―his psychiatric illnesses ‗grossly or demonstratively impair[ed] his perceptions.‘‖
(Direct Appeal App. at 1581.) The trial court also had before it a report from Dr. Groff‘s
examination of Baer after he committed an unrelated crime shortly before the murders. (Trial Tr.
at 222–23.) Dr. Groff expressly raised the possibility that Baer was malingering. (Direct Appeal
App. at 1557–58.)

Based on this issue of fact, an appellate court would not have found that the trial court
abused its discretion by rejecting Baer‘s GBMI plea and submitting the GBMI issue to the jury.
We do think most appellate lawyers would have raised this contention, and they would have lost.
There is not a reasonable probability that the outcome of Baer‘s appeal would have been
different but for Maynard‘s failure to raise the issue. See Strickland, 466 U.S. at 694.

27
 D. Admission of Baer’s Knife into Evidence

Fourth, Baer argues that Maynard was ineffective because he failed to challenge the
admission of Baer‘s knife into evidence. (Appellant‘s Br. at 38.) The trial court admitted the
knife over counsel‘s objection about relevancy. (Trial Tr. at 1557–58.) Trial counsel later
moved to strike the knife at the close of evidence on the grounds that the State had not tied it to
the crime, but the trial court denied the motion. (Trial Tr. at 1757.) Maynard‘s testimony at the
PCR hearing suggested that he did not raise the issue on appeal because he thought trial counsel
had not objected to it. (See PCR Tr. at 512–14.) Maynard was correct enough that this was a
reason for omitting the issue on appeal, but there was a second reason.

There was substantial evidence that the knife was probative of issues the State had the
burden of proving at trial, including the identity of the murderer and the manner of the murder.
See Ind. Code § 35-42-1-1(1). Both Cory and Jenna Clark died of cuts to their throats that
pathologist Dr. Paul Mellen testified were consistent with an intentional killing with a knife.
(Trial Tr. at 1672–81.) Police later seized from Baer‘s apartment a knife Baer said he carried
with him every day but was not carrying that day because he knew the police were looking for
him. (Trial Tr. at 1421–22.) A serology examination of the sheath to Baer‘s knife produced a
weak positive result for blood. (Trial Tr. at 1561–63.)

E. Raising a Crawford Claim

Fifth, Baer argues that Maynard was ineffective because he failed to challenge an alleged
violation of Crawford v. Washington, 541 U.S. 36 (2003). (Appellant‘s Br. at 38–39.) Under
Crawford, testimonial hearsay is not admissible unless the declarant is unavailable and the
defendant had a prior opportunity to cross-examine him. Crawford, 541 U.S. at 68. In this case,
Court-appointed physicians Dr. Lawlor and Dr. Davis both testified that Baer was mentally ill.
(Trial Tr. at 1908–09, 1929, 1992–93.) The State questioned both doctors using a report Dr.
Masbaum had prepared after examining Baer in December 2004 for an unrelated case. (Trial Tr.
at 1905–08, 1977–82.) Trial counsel objected both times, first on the grounds that it was outside

28
the scope of defense counsel‘s own examination, and then on grounds the prosecutor was making
a spectacle using a report counsel could not cross-examine. (Trial Tr. at 1905–07, 1980.)

Dr. Lawlor had diagnosed Baer with a personality disorder but testified that he thought
Baer could appreciate the wrongfulness of his actions at the time of the crimes. (Trial Tr. at
1864, 1871.) He recounted receiving reports about Baer having auditory hallucinations and
ADHD as a child. (Trial Tr. at 1869–71.) Dr. Lawlor also gave a detailed account of the crimes
as Baer described them to him, although he did not think that the voices Baer claimed to have
heard during the murders constituted auditory hallucinations. (Trial Tr. at 1874–86.) In
response to defense counsel‘s questioning, Dr. Lawlor stated that he did not think Baer was
malingering, or faking, a mental illness. (Trial Tr. at 1893.)

When the State asked Dr. Lawlor about Baer‘s voices, Dr. Lawlor maintained that Baer‘s
description did not indicate a split personality and that Baer did not mention anything about a
voice called ―Super Beast.‖ (Trial Tr. at 1904–05.) Defense counsel quickly objected on
grounds of relevance when the prosecutor asked Dr. Lawlor to review a report from Dr.
Masbaum, but the trial court overruled the objection to the extent that the report was relevant to
the issue of malingering. (Trial Tr. at 1905–07.) According to Dr. Masbaum‘s report, Baer once
tried to present himself to Masbaum as having a split personality, telling Dr. Masbaum that he
was talking to ―Fred‖ on one day but talking to ―Michael‖ on another. (Trial Tr. at 1907.) Dr.
Lawlor conceded that Baer could have been malingering, to Dr. Masbaum if not to him, and that
this information was inconsistent with his diagnosis because ―typically, the discrete personalities
aren‘t aware of each other‘s existence.‖ (Trial Tr. at 1908.)

Dr. Davis then testified that he considered Baer mentally ill to the level of having a
mental disease or defect. (Trial Tr. at 1929.) According to Dr. Davis, Baer admitted committing
the murders and described having auditory hallucinations, hearing voices, and having a raging,
out-of-control part of himself that ―came out‖ on the day of the murders. (Trial Tr. at 1922.)
Baer had called this raging part of himself Super Beast. (Trial Tr. at 1923.) Dr. Davis also
reviewed Baer‘s childhood experiences with depression, custody issues, hospitalization for
suicide attempts, prescription drug use, and illicit drug abuse. (Trial Tr. at 1925–28.) Finally, he

29
discussed the clinical link between drug abuse and psychosis, one that might materialize in some
patients but not in others. (Trial Tr. at 1929–37, 1940–43.)

In response to the State‘s questioning, Dr. Davis stated his impression that the phrase
―Super Beast‖ did not refer to a voice Baer heard but rather to the ―raging part of him.‖ (Trial
Tr. at 1977.) After the prosecutor and Dr. Davis speculated over whether Super Beast originated
from a tattoo on Baer‘s left forearm, the prosecutor asked Davis to read passages from Dr.
Masbaum‘s report suggesting that Baer had heard voices since he was a child that appeared to
come from a Winnie the Pooh doll. (Trial Tr. at 1978–80.) After the prosecutor asked Dr. Davis
if Baer thought that voices telling him to kill his brother came from the Winnie the Pooh doll,
trial counsel objected, ―Mr. Puckett is having a pretty good time, but I can‘t cross-examine that
report. . . . He‘s made fun of my client for claiming that he heard Winnie the Pooh when that‘s
not what the report said, so I‘m going to object to this. This is not funny.‖ (Trial Tr. at 1979–
80.)

Giving Baer the benefit of the doubt as to the form of defense counsel‘s objections, a
defendant has a right to be confronted with witnesses against him in a criminal prosecution. The
Confrontation Clause of the Sixth Amendment effectively codified existing common law, which
prevented a trial court from admitting testimonial hearsay statements unless the State showed
both that the declarant was unavailable to testify and that the defendant had a prior opportunity to
cross-examine the declarant. Crawford, 541 U.S. at 53–54.

Although the U.S. Supreme Court did not comprehensively define the breadth of
testimonial statements in Crawford, it did describe a core class of testimonial statements that
included (1) ex parte in-court testimony such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially; (2) extrajudicial statements
contained in formalized testimonial materials, affidavits, depositions, prior testimony, or
confessions; and (3) statements made under circumstances that would lead an objective witness
to reasonably believe that the statement would be available for later use at a trial. Id. at 51–52.

30
 Regardless of whether the trial court should have admitted this evidence under Crawford,
Maynard‘s decision not to present this issue on appeal did not prejudice Baer because admitting
it for this limited purpose constituted harmless error. The jury heard evidence from two experts
that Baer was mentally ill to the level required by Ind. Code § 35-36-1-1. (Trial Tr. at 1908–09,
1929, 1992–93.) It heard evidence that Baer suffered from ADHD and depression as a child, that
he was hospitalized, that he used prescription drugs, and that he eventually started huffing and
abusing illicit drugs. (Trial Tr. at 1925–28.) It heard evidence that chronic drug abuse could
damage a person‘s mental abilities to the point of near-retardation and could exacerbate any
preexisting mental illnesses. (Trial Tr. at 1929–37, 1940–43.) It is unlikely that a jury
unconvinced by this evidence would have entered a GBMI verdict or recommended a sentence of
life if only the State had not cross-examined Dr. Lawlor and Dr. Davis mentioning Dr.
Masbaum‘s report.

F. Penalty-Phase Jury Instructions

Sixth, Baer argues that Maynard should have challenged certain penalty-phase jury
instructions. (Appellant‘s Br. at 39–41.) Because trial counsel failed to raise an objection to
these instructions, Maynard was faced with presenting them as fundamental error. Ritchie v.
State, 809 N.E.2d 258, 273–74 (Ind. 2004). The four instructions Baer references here are the
same mentioned on trial counsel ineffective assistance of counsel: omitting reference to
―intoxication‖ on mitigation; stating that intoxication that appeared in the statutory definition;
stated that intoxication was not a defense in a prosecution for any crime; using the instruction on
insanity and lay witness testimony; and not declaring that life without parole really did mean life
without parole. (Appellant‘s Br. at 39–41.)

Maynard could reasonably decide not to challenge omission of the ―intoxication‖ phrase.
After all, the same jury instruction required the jury to consider the fact that the defendant ―was
under the influence of extreme mental or emotional disturbance‖ and that his capacity to
appreciate the criminality of his conduct or to conform it to the law ―was substantially impaired
as a result of mental disease or defect.‖ (PCR App. at 637.) Given the link between ongoing
methamphetamine usage and mental illness that repeatedly arose in expert testimony, the jury

31
had an adequate opportunity to hear and act on this evidence even with the omission of ―or of
intoxication‖ from the jury instruction. (Trial Tr. at 1872–73, 1897–1901, 1929–37, 1940–46.)

Likewise, Maynard‘s decision not to challenge the instruction that intoxication was not a
defense to commission of any crime did not prejudice Baer‘s appeal because as we noted above
it did nothing to muddy the waters by implying that intoxication could not be a mitigator.
(Appellant‘s Br. at 40.)

Maynard‘s decision not to challenge the court‘s instructions that a lay witness could
express an opinion on sanity and that the jury must weigh both lay and expert testimony to
determine whether Baer was insane or mentally ill did not prejudice Baer‘s appeal. Giving the
instructions did not amount to fundamental error. Trial counsel made perfectly clear that they
were seeking a GBMI verdict, not raising an insanity defense. (Trial Tr. at 1908–09, 2105.)

Finally, Maynard‘s decision not to challenge the court‘s failure to instruct that life
without parole really did mean life without parole must be viewed against the fact that that
sentencing statutes do in fact change over time. The most a trial court could have told the jury
was that the present statutes do not permit parole, something the jury obviously already knew.9

9
Baer relies on Schafer v. South Carolina, 532 U.S. 36 (2001), for the proposition that due process
requires an instruction that life without parole really does mean life without parole whenever future
dangerousness is at issue. (Appellant‘s Br. at 41.) Schafer actually applies to the instance of not telling a
jury that a facially ambiguous phrase like ―life imprisonment‖ or ―imprisonment for life‖ or some other
such variation carried no possibility of parole. See Schafer, 532 U.S. at 48 & n.4. As the Court noted,
excluding convicts of certain crimes from the possibility of parole was a recent development, so a jury
might not know whether a phrase like ―life imprisonment‖ excluded the possibility of parole. Id. at 52–
53.

The jury instructions in Baer‘s penalty phase and the Indiana statute on which it was based clearly
used the unambiguous phrase ―life without parole.‖ (PCR App. at 637.) As trial counsel explained to
prospective jurors:
There are a couple of others [prospective jurors] that said that they thought it was thirty
(30) or forty (40) years. Okay. You‘re right if we were in Colorado. Life without parole
in some other states means that the person who is sentence [sic] for life is eligible to be
considered for parole in forty (40) years. Not in Indiana. In Indiana, life without parole
means life without parole.
(Trial Tr. at 428.)

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 G. Requesting Co-Counsel

Finally, Bear argues that Maynard should have requested co-counsel. (Appellant‘s Br. at
41–42.) He does not cite any authority for the proposition that reasonably effective performance
requires co-counsel on appeal. (Appellant‘s Br. at 41–42.) Baer does point to the testimony of
expert witness Monica Foster, a good source, who thought a capital appeal was such an
―enormous undertaking‖ that no single lawyer could handle one without co-counsel.
(Appellant‘s Br. at 41–42; PCR Tr. at 715–16.)

Neither the ABA Model Rules of Professional Conduct nor the ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases require appellate
counsel to associate with co-counsel. We decline to hold that not requesting co-counsel in a
capital appeal falls below that standard required by the Sixth Amendment. See Lowrey v. State,
640 N.E.2d 1031, 1041 (Ind. 1994).

Baer notes that ―[e]nlisting co-counsel could only have helped Maynard formulate and
present all arguably meritorious issues.‖ (Appellant‘s Br. at 41–42.) Maynard had been
practicing law for twenty-seven years and specialized in personal injury and criminal defense.
(PCR Tr. at 497.) Given the deferential standard of review Maynard was facing on many issues
on appeal and the overwhelming evidence of Baer‘s guilt, we cannot say that requesting co-
counsel would have changed the outcome. See Strickland, 466 U.S. at 694.

IV. Taylor’s Testimony Is Not Newly Discovered Evidence.

Baer claims that previously undiscovered evidence reveals his longstanding psychosis,
undermining confidence in his sentence. (Appellant‘s Br. at 84–87.) The evidence he cites is
PCR testimony by Earl Taylor, a former fellow inmate from the late 1990‘s, before Baer
committed these double murders. (PCR App. at 349.) Taylor testified that ―most of the time,

33
[Baer] appears to be reasonable, sane, and lucid. Other times, when the voices take over, he is
completely the opposite.‖ (PCR App. at 349.)

To qualify as newly discovered evidence, the evidence must be discovered since the trial
and the defendant must have used due diligence to discover it before trial. Stephenson v. State,
864 N.E.2d 1022, 1050 (Ind. 2007). Even if counsel were unaware of witnesses before trial, the
statute requires diligence in discovering them and places the burden on Baer to show why the
testimony was unavailable at trial. Id. at 1053. To establish that newly discovered evidence
undermines the confidence in his sentence, Baer must show a reasonable probability of a
different result had the evidence been known at the time of the trial. Id. at 1049.

The PCR court disregarded Taylor‘s testimony because Baer ―obviously knew of any
conversations he might have had with Taylor over a several-year period,‖ and therefore Baer had
not shown Taylor was unavailable at trial, ―an essential showing required by I.C. 35-50-2-9.‖
(PCR App. at 349.) Rejecting Baer‘s argument that he could not be expected to participate in his
own defense, the PCR court noted that there had never before been any such suggestion about
Baer‘s competence. (PCR App. at 350.) The PCR court pointed to Baer‘s ability to assist his
counsel and his capability ―of understanding that he might have benefited from telling his trial
attorneys his pre-arrest conversations with Taylor.‖ (PCR App. at 350.) He also understood that
―he might benefit from portraying himself as being incapable of killing Cory and Jenna Clark
because, he asserted, he is so ‗soft and sentimental‘ that he cries ‗when a freakin‘ butterfly gets
hit on the windshield.‘‖ (PCR App. at 350.)

On appeal, Baer reiterates that his mental state precludes the court from holding him
responsible for assisting in his defense. (Appellant‘s Br. at 87.) He also argues, ―Taylor‘s
testimony concerning Baer‘s long-standing auditory hallucinations, corroborated at PCR by
counselor Ogden and ex-wife Brown, undermines confidence in Baer‘s death sentence.‖
(Appellant‘s Br. at 87.)

The PCR court was not clearly erroneous in concluding that Baer has not met the burden
required for relief on new evidence. While additional evidence about Baer hearing voices during

34
an earlier prison stay would be material, the record at trial presented considerable evidence and
evaluation of the ―voices question.‖ What Taylor has to add does not suggest a reasonable
probability of a different result.

VI. Baer’s Potential Mental Retardation

The record contains very occasional mention of mental retardation. We thus pause to
consider whether there might be any claim under Atkins v. Virginia, 536 U.S. 304 (2002),
though none of his lawyers nor any of the multitude of medical experts have made this an issue.

Dr. Richard Lawlor and Dr. Philip Harvey, two of the experts who testified at PCR,
tested Baer‘s IQ. (PCR Tr. at 336; PCR Ex. 15.) Dr. Lawlor tested Baer‘s IQ in December
2004, and Dr. Harvey tested it in 2008. (Direct Appeal App. at 1581; PCR Ex. 15.) The test
result administered by Dr. Lawlor was a borderline score of sixty-nine to seventy-one, and the
test administered by Dr. Harvey was in the low eighties. (PCR Tr. at 336; PCR Ex. 15.) As Dr.
Harvey acknowledged, Baer had been incarcerated and under psychiatric treatment for several
years, so he based his conclusions about Baer‘s mental state at the time of the crime on the
assumption that his cognition in 2008 was ―at least not likely to be worse‖ than at the time of the
crime. (PCR Tr. at 282–84.) This is because ―[s]ubstance abuse-related disorders improve fairly
substantially during periods of abstinence.‖ (PCR Tr. at 282.) Therefore, Baer‘s cognitive
performance data Dr. Harvey collected ―is quite likely an underestimate of his level of cognitive
impairment at the time of the crime.‖ (PCR Tr. at 282.)

Dr. Lawlor concluded that the 2004 test results meant Baer ―would be a person who, with
effort and motivation, could pass in school, but it would take a lot of motivation and effort with
that level of functioning. And he certainly wouldn‘t be an honor roll student.‖ (PCR Tr. at 336.)
After discussing Dr. Harvey‘s IQ test results, Dr. Lawlor expressly stated that Baer ―is not
mentally retarded.‖ (PCR Tr. at 336.)

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 Dr. Harvey did not discuss the IQ results in his report at PCR, but he did discuss Baer‘s
cognitive abilities. (PCR Tr. at 272–74.) He found that Baer ―has a wide range or scatter in his
abilities. There are a number of his abilities that I examined that are essentially in the average
range of performance.‖ (PCR Tr. at 272.) As an example, Baer‘s vocabulary scores were
―above average for someone with his educational attainment and his opportunities.‖ (PCR Tr. at
273.) On the other hand, other aspects of his performance, such as his working memory, were
―quite impaired.‖ (PCR Tr. at 273.) Further, Dr. Harvey found that Baer‘s ―family history is
positive for mental retardation,‖ though he did not attribute any significance to this observation.
(PCR Tr. at 299.)

In Atkins, the U.S. Supreme Court, citing the American Psychiatric Association‘s
definition, noted that ―mild‖ mental retardation applies to people with an IQ level of fifty or
fifty-five to approximately seventy. Atkins, 536 U.S. at 309 n.3. In State v. McManus, this
Court restated what qualifies as ―significantly subaverage intellectual functioning‖ under Ind.
Code § 35-36-9-2: ―a person is considered to meet the subaverage intellectual functioning
component if the person‘s full-scale IQ test score is two standard deviations below the mean; i.e.,
an IQ between 70 and 75 or lower.‖ 868 N.E.2d 778, 785 (Ind. 2007) (quoting Woods v. State,
863 N.E.2d 301, 304 (Ind. 2007)); see also, Atkins, 536 U.S. at 308 n.3.

In McManus we concluded that the post-conviction court‘s finding that the defendant was
significantly subaverage was clearly erroneous and not supported by the record. McManus, 868
N.E.2d at 787. McManus presented scores from five IQ tests, all of which indicated scores of
seventy or above and three of which indicated scores above the seventy to seventy-five cutoff.
Id. at 785–86. The record also included expert testimony that McManus was not within the
definition of mental retardation. Id. at 786.

Given our holding in McManus and the extensive record in Baer‘s case, it appears that
the Eighth Amendment does not bar application of the death penalty on grounds of retardation.

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 Conclusion

We affirm.

Dickson, Sullivan, Rucker, and David, JJ., concur.

37