ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Thomas C. Hinesley James B. Martin
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana
Kathleen Cleary
Deputy Public Defender
FILED
Laura L. Volk
Deputy Public Defender
Indianapolis, Indiana
Jun 16 2009, 1:53 pm
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CLERK
In the of the supreme court,
court of appeals and
tax court
Indiana Supreme Court
_________________________________
No. 15S00-0512-PD-617
TOMMY PRUITT,
Appellant (Petitioner below),
v.
STATE OF INDIANA,
Appellee (Respondent below).
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Appeal from the Dearborn Circuit Court, No. 15C01-0109-CF-054
The Honorable James D. Humphrey, Judge
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On Petition for Rehearing
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June 16, 2009
Per curiam.
In Pruitt v. State, 903 N.E.2d 899 (Ind. 2009), this Court affirmed the denial of Tommy
Pruitt’s petition for post-conviction relief in respect of his conviction for murder and sentence of
death. Pruitt now seeks rehearing on grounds that this Court erroneously found five of his post-
conviction claims of ineffective assistance of counsel procedurally defaulted. He contends that
he adequately raised each of these claims, and that the Court should have reviewed them on the
merits, instead of dismissing them through waiver.
This Court has reviewed these contentions and concludes that we were correct to hold
four of these claims to have been procedurally defaulted or otherwise adequately addressed their
merits in our opinion.
We do agree, however, that we should have reviewed on the merits Pruitt’s claim that
trial counsel was ineffective for misinforming the jury that the State would present expert
testimony rebutting Pruitt’s mental retardation.
Trial counsel, in opening statement to the jury, stated:
I’m sure the State will have their experts come in here and say, Tommy’s
not mentally retarded, but make no doubt about it, we believe that every single
expert that will come here will tell you that if Tommy is not mentally retarded,
he’s just a fraction away and that it’s a difference without a distinction, a person
with a 71 IQ is functionally the equivalent of a person with a 69 IQ.
(Trial Tr. 4960.)
The post-conviction court (PC court) made certain findings of fact from which it
concluded that trial counsels’ performance in this regard was not deficient, as follows:
First, the above is clearly a statement of what trial counsel expected Dr.
Groff to say, and not a promise to the jury regarding what they were going to
hear. Regardless, based upon what transpired at the pretrial hearing on mental
retardation, the statement expresses a reasonable expectation regarding the
testimony. Moreover, the statement is reasonably accurate estimate of the State’s
expert testimony at the penalty phase with regard to mental retardation. Knowing
that there had already been an adjudication that Pruitt was not mentally retarded
under the statute, trial counsel made a reasonable effort to condition the jury to
consider his borderline intellectual functioning in mitigation.
2
(App. to the Br. of the Petitioner-Appellant at 679) (emphasis in the original).
As discussed in our opinion, see Pruitt, 903 N.E.2d at 905, “[we] will disturb a post-
conviction court’s decision as being contrary to law only where the evidence is without conflict
and leads to but one conclusion, and the post-conviction court has reached the opposite
conclusion.” Id. (citing Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001) (quoting Miller v.
State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert. denied, 528 U.S. 1083 (2000))). Our review of
the PC court’s findings and conclusions do not lead us to an opposite conclusion than that
reached by the PC court.
Pruitt’s petition for rehearing is denied.
Shepard, C.J., and Dickson, Sullivan, and Boehm, JJ., concur.
Rucker, J. dissents.
3
Rucker, Justice, dissenting.
For the reasons set forth in my dissenting opinion in Pruitt v. State, 903 N.E.2d 899, 940
(Ind. 2009), I would grant rehearing, vacate the judgment of the post-conviction court, and
remand this cause with instructions to impose a term of years.