State v. McManus

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Steve Carter Susan K. Carpenter
Attorney General of Indiana Public Defender of Indiana

Andrew A. Kobe Steven H. Schutte
Deputy Attorney General Joanna Green
Indianapolis, Indiana Deputy Public Defenders
Indianapolis, Indiana

In the
Indiana Supreme Court
_________________________________

No. 82S00-0503-PD-78

STATE OF INDIANA,
Appellant / Cross-Appellee
(Respondent below),

v.

PAUL M. MCMANUS,
Appellee / Cross-Appellant
(Petitioner below).
_________________________________

Appeal from the Vanderburgh Circuit Court, No. 82C01-0102-CF-192
The Honorable William J. Brune, Special Judge
_________________________________

June 27, 2007

Shepard, Chief Justice.

Having completed his direct appeal, Paul McManus sought post-conviction relief. The
post-conviction court largely rejected his claims, except for his contention that he is mentally
retarded. Persuaded by his retardation claim, the post-conviction court vacated the sentence of
death and entered a sentence of life without parole. We direct judgment for the State.
 Facts and Procedural History

In May 2002, a jury found Paul McManus guilty of murdering his wife and two daughters
and recommended the death sentence. The trial court found that aggravating circumstances
outweighed mitigators and sentenced McManus to death. McManus appealed, challenging
among other things his competency to stand trial. We affirmed. McManus v. State, 814 N.E.2d
253 (Ind. 2004), cert. denied, 126 S.Ct. 53 (2005).

McManus petitioned for post-conviction relief on August 22, 2005 and amended the
petition on January 6, 2006. The State moved for summary judgment as to most of McManus’
claims, which the court granted. McManus then sought and received a change of judge. On
March 6, 2006, the first day of evidentiary hearings, Senior Judge Brune reversed the partial
grant of summary judgment to the State.

McManus filed his witness and exhibit list on January 6, 2006, in accord with the case
management schedule. Four days after the close of discovery, on February 10, McManus filed
an amended witness and exhibit list adding Dr. Edmund Haskins. The State then requested
reports from Dr. Haskins and Dr. Dennis Olvera, but McManus did not supply the reports until
February 27. The State sought to exclude the testimonies and reports of Dr. Haskins and Dr.
Olvera citing these delays, but the court denied the motion.

During the evidentiary hearings, several witnesses testified about McManus’
psychological history and mental abilities. At the age of seven, McManus took his first IQ test,
but the examiner did not record a score. The examiner did conclude, however, that McManus
fell “within the lower limits of the low average range.” (PC Hr’g Tr. at 595.) McManus
received a full-scale IQ score of 81 at age 11, and the examiner characterized his score as “within
a low average range.” (Id. at 596.) Three years later, McManus scored a 72, but “it was the
examiner’s judgment that [McManus] wasn’t giving adequate effort . . . [and that] the scores
likely underestimated his potential intellectual ability.” (Id. at 597.) McManus took his next IQ
test after the murders (at age 30) and scored a 70, but the examiner thought the score was
“suppressed slightly because of [McManus] being anxious and depressed at the time of testing.”

2
(Id. at 597-98; Trial Tr. at 1421.) McManus took his most recent IQ test in February 2006 (at
age 34) and scored a 78. (PC Hr’g Tr. at 598.)

Dr. Olvera and his assistant performed two adaptive behavior assessments on McManus
based on interviews with McManus’ three employers, his mother, his sister, and his sister-in-law.
(Petr.’s Ex. 11 at 1.) The Adaptive Behavior Assessment System II (“ABAS II”) has three
primary domains (Conceptual, Social, and Practical), and McManus did not fall within the
mentally retarded range on any of these domains. (Id. at 4.) The ABAS II also has ten
subdomains, and Dr. Olvera testified that McManus scored in the mental retardation range in
“Functional Academics” and just outside the mental retardation range in “Community Use.”
(Id.) 1 Of the three domains tested by the Vineland-II Adaptive Behavior Scales (“VABS II”)
(Communication, Daily Living, and Socialization), McManus scored in the mental retardation
range in “Communication” and both within and without the mental retardation range in
“Socialization.” (Id. at 2-3.) 2 These scores led Dr. Olvera to conclude that McManus had
substantial impairments of adaptive behavior. (Id. at 5.)

Co-workers testified that McManus performed ably at his three jobs, often working 18-20
hours per day. (Trial Tr. at 615-16, 843-44, 956-57, 1019-20, 1037.) He successfully completed
forklift training, including a written test, and operated a forklift thereafter. (PC Hr’g Tr. at 238-
39, 241.) Although McManus has always had learning disabilities, poor reading skills, and
ADHD, necessitating special education during his school years, he did graduate high school.
(Trial Tr. at 1213-14, 1363-64, 1679-81; PC Hr’g Tr. at 219, 271-72.)

Persuaded that McManus had a freestanding Atkins claim and that the preponderance of
the evidence established that McManus was mentally retarded, Judge Brune granted McManus’
petition in part, vacating the death sentence, and imposed a sentence of life without parole.

1
McManus received a score of 2 in “Functional Academics” and 5 in “Community Use.” Scores on the ABAS II
have a mean of 10 and a standard deviation of 3. (Petr.’s Ex. 11 at 3-4.) A person is considered in the mental
retardation range if they score lower than a 4. (See PC Hr’g Tr. at 602-03.)
2
McManus received scores of 21 and 21 in “Communication” from the two respondents on the VABS II. He
received scores of 71 and 54 in “Socialization.” VABS II scores have a mean of 100 and a standard deviation of 15.
(Petr.’s Ex. 11 at 2-3.) Thus, a person is considered in the mental retardation range if they score lower than a 70.
(See PC Hr’g Tr. at 604-05.)

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(App. at 522-605, 609-10.) The State appealed and McManus cross-appealed, presenting a total
of five claims for our resolution.

I. Mental Retardation

Indiana statutes have provided a pre-trial means by which mentally retarded defendants
can seek exemption from the death penalty since 1994, yet McManus waited until his post-
conviction proceedings in 2005 to raise a mental retardation claim. The post-conviction court
considered McManus’ mental retardation claim on the merits relying on the U.S. Supreme
Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002). We must determine first whether
McManus’ claim of retardation was preserved even though he failed to follow Indiana’s existing
statutory procedure, and if so, whether McManus meets the definition of mental retardation.

A. Preservation of the Claim

In 1994, before any constitutional mandate, Indiana declared that a request for the death
penalty must be dismissed when a defendant establishes to the court’s satisfaction that he is
mentally retarded. See 1994 Ind. Acts 1851-52 (currently codified at Ind. Code Ann. ch. 35-36-9
(West 2006)). The act established pre-trial procedures requiring a defendant to file a petition
alleging that he is mentally retarded at least twenty days prior to the omnibus date. Ind. Code
Ann. § 35-36-9-3. The court must then order an evaluation and determine at least ten days prior
to trial whether the defendant is in fact mentally retarded. Id. §§ 35-36-9-3, -5. If a defendant is
found mentally retarded, then the State may not pursue the death penalty. Id. §§ 35-36-9-6, -7.
If these procedures are not followed, however, a defendant waives his right to make this claim on
appeal. See Smallwood v. State, 773 N.E.2d 259 (Ind. 2002) (defendant failed to employ mental
retardation statutory procedure and waived claim for appeal).

Until the Supreme Court’s decision in Atkins, there was no constitutional prohibition
against executing mentally retarded defendants. As such, Indiana defendants who claimed to be

4
mentally retarded sought refuge only under Indiana’s statutory framework. In Atkins, however,
the Supreme Court relied on states like Indiana in declaring that there was a “legislative
consensus that the mentally retarded should be categorically excluded from execution.” 536 U.S.
at 315-16, 318. A majority of the Court thus concluded that executing a mentally retarded
offender is cruel and unusual punishment under the Eighth Amendment. 3 Id. at 321. The Court
did not define mental retardation 4 or specify procedures to comply with this new constitutional
mandate, but instead, left these difficult tasks to the states. Id. at 317.

After Atkins, states like Indiana, which already had statutory procedures to prevent the
execution of mentally retarded defendants, were forced to decide how Atkins should apply to
existing law. Who can raise an Atkins claim? If a defendant failed to use the state’s existing
procedures, could the defendant later raise an Atkins claim after the state remedy was effectively
waived? Did Atkins create a right independent of the existing state remedy? In other words, did
Atkins require a change to the existing state procedures to comply with the new constitutional
mandate?

Faced with these questions, the Supreme Court of Kentucky held Kentucky’s statutory
scheme was consistent with Atkins and declared it constitutional. Bowling v. Commonwealth,
163 S.W.3d 361, 371-73 (Ky. 2005) (“Atkins merely reaffirmed this State’s preexisting
prohibition against executing the mentally retarded.”). Because Atkins did not broaden the
statutory protection already afforded to Kentucky defendants, the court held that a defendant who

3
The Court said:
Our independent evaluation of the issue reveals no reason to disagree with the judgment of ‘the
legislatures that have recently addressed the matter’ and concluded that death is not a suitable
punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally
retarded criminals will measurably advance the deterrent or the retributive purpose of the death
penalty. Construing and applying the Eighth Amendment in light of our ‘evolving standards of
decency,’ we therefore conclude that such punishment is excessive and that the Constitution
‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded
offender.
Atkins, 536 U.S. at 321 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)).
4
The Court noted that statutes defining mental retardation generally conform to the clinical definitions provided by
the American Association on Mental Retardation and American Psychiatric Association and concluded the
definitions withstand constitutional challenge so long as they include those “mentally retarded offenders about
whom there is a national consensus” prohibiting their execution. Id. at 317 n.22.

5
failed to follow Kentucky’s pre-Atkins procedures waived review of his mental retardation
claim, even post-Atkins. Id.

We considered these questions in Pruitt v. State, 834 N.E.2d 90 (Ind. 2005). Unlike
Kentucky, we concluded our statutory scheme did not fully withstand constitutional challenge.
As originally enacted, Ind. Code § 35-36-9-4 required a defendant to “prove by clear and
convincing evidence that the defendant is a mentally retarded individual.” See 1994 Ind. Acts
1851-52 (codified at Ind. Code Ann. § 35-36-9-4 (West 2004)). We determined however, that
the “clear and convincing” requirement was unconstitutional in light of Atkins. 5 Pruitt, 834
N.E.2d at 102-03. In effect, we concluded that Atkins necessitated lowering the burden of proof
found in Indiana’s existing statutory exemption.

McManus clearly waived review under our statutory scheme as originally written.
However, McManus’ post-Atkins claim did not ripen until 2005 when we modified our statutory
scheme in Pruitt to comply with Atkins. As such, the claim of mental retardation was properly
before the post-conviction court.

B. McManus Does Not Meet the Standard for Retardation

The post-conviction court found by a preponderance of the evidence that McManus met
Indiana’s definition of a “mentally retarded individual.” (App. at 605.) Indiana Code § 35-36-9-
2 defines “mentally retarded individual” as one who manifests (1) significantly subaverage
intellectual functioning, and (2) substantial impairment of adaptive behavior before the age of
twenty-two. To satisfy this definition, a defendant must prove both. Pruitt, 834 N.E.2d at 103.
The court’s findings that McManus satisfied both the “intellectual functioning” and “adaptive
behavior” prongs are factual determinations that are subject to review under a “clearly
erroneous” standard. Id. at 104.

5
We feared the heightened standard of proof would result in the execution of some persons who are mentally
retarded. Pruitt, 834 N.E.2d at 103.

6
 (1) Intellectual Functioning

In determining what qualifies as “significantly subaverage intellectual functioning” we
have made reference to the works of the American Association on Mental Retardation and the
American Psychiatric Association. Woods v. State, 863 N.E.2d 301, 304 (Ind. 2007) (citing
Atkins, 536 U.S. at 308 n.3). “Under these descriptions, 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.” Id.; see also
Williams v. State, 793 N.E.2d 1019, 1028 (Ind. 2003) (quoting Atkins, 536 U.S. at 309 n. 5)
(“‘An IQ between 70 and 75 or lower, . . . is typically considered the cutoff IQ score for the
intellectual function prong of the mental retardation definition.’”).

IQ tests alone are not necessarily conclusive, and courts may “consider IQ scores together
with other evidence of mental capacity.” Pruitt, 834 N.E.2d at 106. Despite the court’s ability to
consider other factors such as work history, school history, and life functioning, we have held
that “IQ scores may be such that they show the person does not meet the intellectual component
of mental retardation.” Woods, 863 N.E.2d at 304; Williams, 793 N.E.2d at 1028 (Williams’
full-scale IQ scores of 78 and 81 not within cutoff range for mental retardation).

Courts should also consider whether a defendant is putting forth his full effort during IQ
testing. For example, in Pruitt, the trial court discounted a full-scale IQ score of 52 after the
examiner “testified that he did not believe that Pruitt was working up to his potential . . . and
[that] the test was therefore not an accurate measure of [Pruitt’s] intellectual functioning.” 834
N.E.2d at 105. Since some of Pruitt’s scores suggested significantly subaverage intellectual
functioning and others did not, the trial court also considered Pruitt’s school and work history.
The court found that Pruitt was able to fill out employment applications and to support himself
through “a number of jobs over the years including construction, fast food, and long distance
truck driver.” Id. at 106. These findings led the trial court to conclude Pruitt failed to satisfy the
intellectual functioning prong, and we affirmed.

7
 Although the post-conviction court in this case concluded McManus was significantly
subaverage as to intellectual functioning, this finding is not supported by the record and is clearly
erroneous. McManus’ IQ has been tested five times throughout his life (at ages 7, 11, 14, 30,
and 34). (PC Hr’g Tr. at 595-98.) Of these five tests, McManus scored above the 70-75 cutoff
on three. On the two remaining tests, McManus scored 70 and 72, but the record demonstrates
these scores were suppressed because McManus was either not working to his full potential or
suffering from severe depression and anxiety. (Id.; Trial Tr. at 1688-92; Petr.’s Ex. 11.) The
following chart summarizes the results.

Approximate Age Full-Scale IQ Verbal IQ Performance IQ
Lower limits of low average range
7 years old
(no scores reported)
11 years old 81 77 88
14 years old 72 68 81
30 years old 70 71 74
34 years old 78 75 85

Experts for the trial court, the State, and the defense testified both at trial and during the
post-conviction hearing that McManus is not below the level of intellectual functioning that
defines mental retardation. Dr. David Hilton, a court-appointed psychiatrist, testified that his
“abbreviated assessment of cognitive functioning would suggest probably low average
intelligence,” and he noted that McManus’ “general presentation, communication skills, and use
of vocabulary . . . would not suggest mental retardation, nor would his history of being able to
maintain employment in a number of different jobs with varied skill requirements.” (State’s
Trial Ex. 63 at 12 (emphasis added).)

John Ireland, Ph.D., a clinical psychologist who testified at trial for the defense,
concluded McManus’ actual IQ was likely in the “80-type range,” well above the 70-75 cutoff.
(Trial Tr. at 1692.) Dr. Ireland gave less weight to McManus’ age fourteen IQ score of 72,
because the evaluator noted McManus “was active, fidgety, immature, impulsive, easily
frustrated, wanted to terminate testing activities, [and] responded with I don’t know.” (Id. at
1689.) Dr. Ireland questioned whether this score indicated borderline intellectual functioning or

8
was the simple result of McManus not trying. (Id.) In addition, since these are typical behaviors
for students with ADHD, Dr. Ireland questioned whether McManus’ ADHD or other learning
disabilities influenced the score. (Id. at 1691-92.)

Michael Gelbort, Ph.D., a clinical psychologist who testified at trial for the defense,
conducted McManus’ IQ test at age 30, which resulted in a score of 70. (Id. at 1417-18.) Even
though this is McManus’ lowest score, this score still falls right on the cutoff, and Dr. Gelbort
conceded that this score was likely suppressed since McManus was on trial for murder and
obviously experiencing anxiety and depression. (Id. at 1421.)

Edmund Haskins, Ph.D., a clinical neuropsychologist who testified for the defense at the
post-conviction hearing, concluded McManus’ IQ was likely “in the high 70s, maybe even low
80s,” again above the 70-75 cutoff. (PC Hr’g Tr. at 429.) Dr. Haskins himself conducted
McManus’ IQ test at age thirty-four, which resulted in a score of 78. (Id. at 403.) After
reviewing McManus’ history and other scores, Dr. Haskins speculated that McManus’ learning
disability and ADHD likely contributed to executive functioning problems and McManus’ two
suppressed scores. (Id. at 403-04, 413-16.)

Dennis Olvera, Ph.D., a psychologist who testified for McManus at the post-conviction
hearing, concluded that McManus was not currently mentally retarded. (Id. at 383.) Dr. Olvera
testified, “I can’t [say McManus is currently mentally retarded] because of the IQ testing that Dr.
Haskins completed and the elevation of the scores.” (Id.)

Finally, Martin Groff, Ph.D., a psychologist who testified at the post-conviction hearing
for the State, reviewed all of McManus’ IQ tests and concluded McManus is not below the level
of intellectual functioning that defines mental retardation. (Id. at 602.) Dr. Groff testified that
only two scores raised the potential issue whether McManus might satisfy the intellectual
functioning prong, and both scores were still within the 70-75 cutoff (one score of 70 and the
other 72). (Id. at 595-98, 600-01.) More importantly, Dr. Groff discounted the score of 72
because “it was the examiner’s judgment that Mr. McManus wasn’t giving adequate effort,” and

9
as a result, “the scores likely underestimated his potential intellectual ability.” 6 (Id. at 597.) He
also discounted the score of 70 because the examiner noted that McManus was “anxious and
depressed” at the time of testing which would suppress his score. (Id. at 598.)

A careful review of McManus’ testing history alone demonstrates McManus is not
significantly subaverage as to intellectual functioning. McManus’ school history, work history,
and life functioning only strengthen this conclusion. Despite McManus’ struggle with ADHD
and learning disabilities, he did graduate high school. (Trial Tr. at 1174.) McManus also
worked three jobs and took great pride in supporting his family. (Id. at 615-16.) He worked at a
local restaurant & bar called Breakers, where he managed other bar backs and occasionally
worked security. (Id. at 840-41.) His supervisor at Breakers described him as an “excellent
employee.” (Id. at 841.) McManus also worked at RuVan Plastics, currently known as Adco.
(PC Hr’g Tr. at 231.) At RuVan, McManus worked in several departments, including cut-up,
mixing, and trash. (Id. at 232.) He drove a forklift at RuVan, which required him to pass a test.
(Id. at 238-39.) Once again, a supervisor described him as a “very good worker” who was
reliable. (Id. at 240-41.) Finally, between his other shifts, McManus cleaned the office at
Dayton Freight. (Trial Tr. at 1253.)

Perhaps most indicative of his functioning and mental capacity, McManus was known by
all as an excellent father who ably cared for his two daughters, including Shelby who suffered
from severe disabilities. (Id. at 1244, 1249, 1251-53.) McManus comfortably cared for Shelby
and was able to feed her through a tube in her stomach,7 work with her therapists, bathe her, play
with her, and make her laugh. (Id. at 1251-53.)

The post-conviction court’s finding that McManus possesses significantly subaverage
intellectual functioning was clearly erroneous. While this holding by itself disposes of
McManus’ retardation claim, we briefly consider McManus’ presentation about adaptive
behavior.

6
The examiner also “noted that Mr. McManus tried to terminate the testing and would respond that he didn’t know
answers to questions, but with prompting [he] was sometimes able to produce those answers.” (PC Hr’g Tr. at 597.)
7
McManus’ mother testified that she was always afraid to feed Shelby through her stomach, and she was impressed
by McManus’ ability and comfort caring for his children, especially Shelby. (Trial Tr. at 1252, 1271.)

10
 (2) Adaptive Behavior

The second prong requires defendants to prove “substantial impairment of adaptive
behavior.” Indiana’s adaptive behavior prong most closely resembles the AAMR definition,
which requires “significant limitations . . . in adaptive behavior as expressed in conceptual,
social, and practical adaptive skills.” Am. Ass’n on Mental Retardation, Mental Retardation:
Definition, Classification, and Systems of Supports 8 (10th ed. 2002); see also, Pruitt, 834
N.E.2d at 108. Although similar, the definition provided by the American Psychiatric
Association requires, “significant limitations in adaptive functioning in at least two of the
following skill areas: communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure, health, and
safety.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 39 (4th
ed. 1994) (DSM-IV).

Relying primarily on the testimony Dr. Olvera gave for the defense, the post-conviction
court found McManus proved by a preponderance of the evidence substantial impairment of
adaptive behavior. (App. at 603-05.) Our review of the record leads us to disagree.

Dr. Olvera conducted one adaptive behavior assessment himself, and his employee Julie
Williams, M.A., conducted a second assessment. (Petr.’s Ex. 11 at 1.) Dr. Olvera administered
the ABAS II on January 6, 2006, and Ms. Williams administered the VABS II on February 19,
2006. (Id.) These tests have similar formats, but the ABAS II most closely resembles the
AAMR definition by scoring the same three domains: Conceptual, Social, and Practical. 8 (Id. at
3; PC Hr’g Tr. at 358-59.) We give greater weight to the ABAS II scores since Indiana’s
definition also tracks the AAMR definition. Pruitt, 834 N.E.2d at 108.

8
The ABAS II still scores ten sub-domains, but the test grouped these sub-domains into three broad categories:
Conceptual, Social, and Practical to trace the revised AAMR definition. Each domain includes the following
subdomains:
Conceptual: Communication, Functional Academics, and Self-Direction
Social: Leisure and Social
Practical: Community Use, Home/School Living, Self-Care, Health and Safety, and Work
Patti L. Harrison & Thomas Oakland, A Technical Report: ABAS II, http://harcourtassessment.com/hai/Images/pdf/
technical_reports/ABAS_II_Tech_Rpt_Web.pdf (last visited June 19, 2007).

11
 To complete the ABAS II, Dr. Olvera interviewed four respondents: three of McManus’
former employers and McManus’ mother. 9 (Petr.’s Ex. 11 at 1.) Based on these interviews, Dr.
Olvera calculated four primary scores: one for each domain (Conceptual, Social, and Practical),
and a General Adaptive Composite (GAC) score. Each of these scores has a mean of 100 and a
standard deviation of 15. (Id. at 3-4.) None of McManus’ scores fell more than one standard
deviation below the mean:

Conceptual 82

Social 90

Practical 93
GAC 88

In Dr. Olvera’s words, “None of the scaled scores for the ABAS II adaptive domains or
the GAC was consistent with what would be expected among individuals who have mental
retardation.” 10 (Id. at 4.) A defendant must show substantial impairment in at least one of the
three primary domains (Conceptual, Social, or Practical). Since McManus did not show
impairment in any of the three, as acknowledged by Dr. Olvera, he failed to satisfy the adaptive
behavior prong.

9
Dr. Olvera testified, “When I talked to the three employers, all of them thought that Mr. McManus was not
impaired.” (PC Hr’g Tr. at 345.)
10
Dr. Olvera attempts to argue that McManus still shows significant impairment of adaptive functioning on the
ABAS II when the ten individual scores are considered. The individual scaled scores have a mean of 10 and a
standard deviation of 3, and McManus’ scores were:
Communication 8
Community Use 5
Functional Academics 2
Home Living 10
Health and Safety 9
Leisure 8
Self -Care 12
Self-Direction 10
Social 8
Work 11
(Petr.’s Ex. 11 at 3-4.) We note, however, that the only two outliers are Community Use and Functional Academics,
and only Functional Academics is two standard deviations below the mean. McManus’ documented learning
disabilities and ADHD are likely the cause of these suppressed scores, not mental retardation.

12
 Ms. Williams ran a second adaptive behavior assessment, the VABS II. These scores
were based on her interviews with Ann Stone (McManus’ sister) and Jaci McManus (McManus’
sister-in-law). (Id. at 1.) The weight of the results is open to doubt, for as Dr. Olvera conceded,
McManus’ family members “might be inclined to portray Mr. McManus as less competent than
he might actually be, in an effort to help him evade the death penalty.” (Id. at 5.)

The VABS II is broken into three primary domains (Communication, Daily Living, and
Socialization) and nine subdomains. (Id. at 2-3.) The domains and composite scores have an
average of 100 and a standard deviation of 15; thus, one would expect mentally retarded
individuals to score below 70. The subdomains have an average of 15 and a standard deviation
of 3, meaning mentally retarded individuals score below 9. (Id.) McManus’ scores were:

Jaci McManus Ann Stone
Scaled Score Scaled Score
Receptive 5 3
Expressive 8 6
Written 6 5
Communication 21 21
Personal 12 16
Domestic 10 12
Community 12 10
Daily Living 75 81
Interpersonal/Relations 11 10
Play and Leisure 11 8
Coping 11 9
Socialization 71 54
Composite 55 52

(Id. at 3.) The communication scores heavily weigh down McManus’ composite scores. Dr.
Olvera testified that the communication scores were lower than he would expect. In fact, he said
the communication scores were what he “would expect of somebody functioning in the range of
severe mental retardation, not somebody with mild mental retardation.” (PC Hr’g Tr. at 362.) It

13
seems apparent that these scores, inconsistent with the rest of the record, were suppressed by the
affection of the relatives who supplied the input.

An adequate adaptive behavior assessment necessarily considers McManus’ work history
and day-to-day life, both of which illustrate his abilities – not deficits. As we already said,
McManus successfully held down three jobs. Each of his employers testified that he was a good,
reliable worker. Three employers contributed to his ABAS II scores, and each employer testified
that he was not impaired. As a result, the ABAS II scores did not reflect significant impairment
in any of the three domains. Finally, McManus had no difficulty feeding Shelby through her
feeding tubes or caring for her on a daily basis. We conclude that McManus does not have
significant adaptive behavior impairments.

In sum, McManus does not satisfy the intellectual functioning or adaptive behavior
prongs. As such, the rule of Atkins does not bar the death penalty.

II. Testimonies of Dr. Haskins and Dr. Olvera

The State contends that the post-conviction court erred when it allowed Dr. Olvera and
Dr. Haskins to testify despite McManus’ apparent failure to list Dr. Haskins on the final witness
list and to respond timely to the State’s discovery requests.

Trial and post-conviction courts are given wide discretion in discovery matters and “in
determining what constitutes substantial compliance with discovery orders, and we will affirm
their determinations as to violations and sanctions absent clear error and resulting prejudice.”
Dye v. State, 717 N.E.2d 5, 10-11 (Ind. 1999).

While the State has not articulated specific prejudice as a result of McManus’ tardiness in
listing Dr. Haskins as a witness or in tendering the doctors’ reports, it is difficult to make such a
showing when an opponent does not tender important evidence until a week before trial. The

14
court afforded the State a chance for a continuance, but bringing a capital post-conviction case to
a hearing at all is a challenging matter.

In any event, the testimonies of Dr. Haskins and Dr. Olvera were not particularly harmful
to the State’s case. While the post-conviction court might have ruled otherwise, this departure
from the case management order and the subsequent admission of the doctors’ testimonies do not
seem like grounds for reversal.

III. McManus’ Competency at Trial

McManus argues that he was not competent to stand trial and that his incompetence
prejudiced him before the jury. The post-conviction court held these claims barred by res
judicata because of our treatment of them in McManus’ direct appeal. See McManus, 814
N.E.2d at 260-64. Still, McManus asserts that we did not address competency despite our
conclusion that “we cannot say that the trial court's competency determination was clearly
erroneous.” Id. at 264. The post-conviction court was correct that McManus’ competency
claims are res judicata.

IV. Ineffective Assistance of Trial Counsel

McManus contends that his trial attorneys were ineffective for their failure to adequately
advocate for his incompetency at trial and for their failure to properly investigate mitigating
factors for the penalty phase.

To establish a claim for ineffective assistance of counsel, a defendant must satisfy two
prongs: First, the defendant must demonstrate that counsel performed deficiently; second, the
defendant must demonstrate that prejudice resulted. McCary v. State, 761 N.E.2d 389, 392 (Ind.
2002) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). These two prongs present

15
independent inquiries, either of which may be sufficient for disposing of a claim. Williams v.
State, 706 N.E.2d 149 (Ind. 1999).

Deficient performance is “representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have the ‘counsel’
guaranteed by the Sixth Amendment.” McCary, 761 N.E.2d at 392. Consequently, our inquiry
focuses on the attorneys’ actions while remembering that “[i]solated mistakes, poor strategy,
inexperience, and instances of bad judgment do not necessarily render representation
ineffective.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). Indeed, a “strong
presumption arises that counsel rendered adequate assistance.” Id.

McManus first faults his trial counsel for failing to seek a competency hearing. The
record proves this contention misinformed. Trial counsel moved for a mistrial based on
McManus’ competency on three separate occasions. (See Trial Tr. at 832-34, 989-90, 1062.)
After arguments on the first motion, the court ruled that “the defendant is competent to assist in
his own defense,” and said, “I’m not convinced that the situation would improve any more over
the next few weeks than it is right now.” (Id. at 836.) The trial court also held an evidentiary
hearing on the mistrial motion, at which the court again found McManus competent to stand trial
and denied the motion. (Mistrial Hr’g Tr. at 69.) There seems little else that McManus’ trial
counsel could have done to advocate his incompetency. Clearly, this does not evince
“representation that fell below an objective standard of reasonableness.” McCary, 761 N.E.2d at
392.

McManus’ other contention faults his trial counsel for failing to adequately present
mitigating evidence in the penalty phase. Specifically, McManus argues that counsel did not
investigate or secure experts, witnesses, and other evidence pertaining to his education, personal
relationships, and impaired mental ability.

McManus’ trial counsel presented the bulk of their mitigating evidence during the guilt
phase of trial. The evidence included favorable testimony from three mental health
professionals, a childhood friend, a co-worker, and McManus’ mother and sister, all during the

16
two days leading up to the start of the penalty phase. (See Trial Tr. at 1076-1550.) The
testimony covered McManus’ educational history, childhood, personal relationships, and
evidence of mental impairments. (See, e.g., id. at 1098-1109, 1120-24, 1154-57, 1161-77, 1210-
15.)

Counsel reasonably concluded that in the penalty phase the jury would be able to
remember mitigating evidence presented over the previous two days. And we recall that “[w]hen
mitigating evidence has already been presented at the guilt phase of trial, counsel’s failure to
duplicate this evidence during the penalty phase of trial does not constitute deficient
performance.” Wrinkles v. State, 749 N.E.2d 1179, 1199 (Ind. 2001) (citing Wisehart v. State,
693 N.E.2d 23, 48 (Ind. 1998)).

Nonetheless, McManus argues that trial counsel should have investigated further and
presented even more mitigating evidence. But McManus points only to evidence cumulative of
that presented at trial. For example, McManus asserts that trial counsel did not investigate his
complete educational history. (Appellee’s Br. at 42.) He argues that two of his former teachers
should have testified at trial about his low intellect, enrollment in special education classes,
social problems, difficulty reading, attention problems, and problems in his personal life. The
record shows, however, that this evidence was admitted at trial. (See Trial Tr. at 1104
(diagnosed with ADHD as a child), 1162 (parents divorced at age two or three), 1165-67 (after
divorce, McManus rarely saw father, who later went to prison when McManus was seven;
McManus had dyslexia, making reading difficult, and enrolled in special education classes),
1174-77 (parents remarried, but within two years father left for another woman, after which
McManus attempted suicide), 1211-13 (other children made fun of McManus’ speech problems
and he “really never had friends” in school), 1367 (intellectual functioning test at age seven
indicates McManus is “at the lower limits of the low average range”).)

The investigation and presentation of mitigating evidence by trial counsel was substantial
and the fact that post-conviction lawyers have managed to find some that may be non-cumulative
does not lead to a conclusion different from that of the post-conviction court, that McManus’
trial counsel performed better than the Sixth Amendment requires.

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 V. Trial Counsel’s Alleged Conflict of Interest

Lastly, McManus contends that trial counsel worked under a conflict of interest that
inhibited McManus’ ability to present his case. McManus points to his father’s limited, and
eventually non-existent, financial backing of trial counsel Mitch Rothman as creating a conflict
between Rothman’s own financial interest and his duties to McManus. This conflict allegedly
prevented Rothman and co-counsel Glenn Grampp from pursuing a full mitigation investigation
or a change of venue. Moreover, McManus argues that Rothman violated his duty of loyalty by
allegedly disclosing to the trial court that he would not return if the motion for mistrial were
granted. 11

“To establish a violation of the Sixth Amendment due to a conflict, a defendant who
failed to raise the objection at trial must demonstrate that trial counsel had an actual conflict of
interest and that the conflict adversely affected counsel’s performance.” Woods v. State, 701
N.E.2d 1208, 1223 (Ind. 1998) (citing Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)).

McManus has not demonstrated that his trial counsel had an actual conflict. Lack of
sufficient funds is a problem many defense attorneys face. McManus’ trial counsel pursued his
case without any evidence of sacrificing the quality of representation or expertise to cut costs.
And while the source of funding can sometimes lead to a conflict, such as when a third-party
payor’s interests supercede those of the client, McManus has not shown that kind of conflict
here.

Rothman’s alleged disclosure to the trial court also lacks indicia of conflict. Rothman
was communicating honestly and openly with the tribunal, something all courts expect from
members of the bar, and something clients expect no less. McManus presents no evidence that
Rothman’s loyalty belonged to anyone other than McManus. McManus’ allegations of conflict,
which seem more like new labels for claims already discussed, are without merit.

11
The disclosure is “alleged” because the record does not definitively show that Rothman revealed his intentions to
the court. Rothman indicated in his post-conviction testimony that the question of his return “may have been a topic
of discussion during a discussion in chambers.” (PC Hr.’g Tr. at 135 (emphasis added).)

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 Conclusion

We reverse the post-conviction court’s holding on retardation, but otherwise affirm.
Judgment for the State.

Dickson and Sullivan, JJ., concur.
Boehm, J., dissents with separate opinion, in which Rucker, J., concurs.

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Boehm, Justice, dissenting.

I respectfully dissent. The majority has stated the applicable law correctly as I
understand it. I believe, however, that the majority’s review of the evidence does not give
sufficient deference to the trial court’s finding of mental retardation.

The trial court’s finding is subject to a clearly erroneous standard of review. Pruitt v.
State, 834 N.E.2d 90, 104 (Ind. 2005). The trial court was presented with conflicting evidence
on McManus’s intellectual functioning and his adaptive behavior. The majority notes evidence
suggesting McManus is not deficient in intellectual functioning or adaptive behavior, but the
record is replete with conflicts in expert and lay testimony on both issues. McManus’s IQ tested
at 70 at age 22 and 72 at age 14. Both scores are in the range of intellectual functioning
qualifying for mental retardation. The explanation offered that low IQ scores can be attributable
to stress or inattention is for the trial court to accept or reject. Similarly, expert testimony was
offered to explain the conclusion of substantial impairment of adaptive behavior despite the
relatively favorable accounts of McManus in the workplace. In addition, several witnesses
testified to McManus’s adaptive behavior at a young age and more recently. Their accounts of
his abilities and difficulties varied, and the trial court could properly credit the defense witnesses.

We recently affirmed a finding by a trial court that a defendant was not mentally retarded
despite significant evidence suggesting that he was. See Pruitt, 834 N.E.2d at 90. In my view
the clearly erroneous standard of review dictates affirming this trial court’s determination as to
mental retardation as well.

Rucker, J., concurs.

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