Baird v. State

In the
Indiana Supreme Court
Arthur P. BAIRD, ) Supreme Court Cause No.
Petitioner, ) 54S00-0505-SD-240
)
v. ) Montgomery Circuit Court
) Cause No. CR85-66
STATE of Indiana, )
Respondent. )

ORDER CONCERNING SUCCESSIVE PETITION
FOR POST-CONVICTION RELIEF IN CAPITAL CASE

Introduction
Petitioner Arthur P. Baird stands convicted of three counts of murder and sentenced to
death after having completed the review to which he is entitled as a matter of right. Baird now
requests permission to litigate additional collateral claims in state court, the primary focus of
which is the claim he should not have been sentenced to death because he was mentally ill when
he committed the murders. Because we conclude Baird has not shown a reasonable possibility
he is entitled to relief, we deny his request.

Background
On the evening of September 6, 1985, Baird strangled his pregnant wife, Nadine. In
telephone conversations that evening, he lied to Nadine’s mother, telling her that Nadine was
sick. The next morning, Baird stabbed and killed his parents, Kathryn and Arthur I. Baird was
arrested the following day as he sat watching a baseball game. He confessed the killings to
police, saying he had lost control and had just gone “berserk." Evidence showed Baird believed
the federal government was about to pay him $1 million for his advice on how to solve the
national debt, and that he had made plans to use the money to purchase a farm for $575,000, the
closing for which was scheduled for September 7. In fact, Baird was in debt and had been laid
off recently from a factory job. There was no evidence of any financial motive for the murders
or of any bad relationship between Baird and the victims.

Various psychiatrists and other mental health professionals examined Baird. Baird
described himself to them as having no motive in committing the murders. He told them that he
had tried to resist the compulsion to kill but had been unable to overcome it. One psychiatrist
opined that Baird had been legally insane when he committed the murders. The others opined
that he had had the requisite capacity to appreciate the wrongful nature of his conduct. They all
opined his ability to conform his actions to the requirements of the law had been impaired by a
mental illness, though the precise nature of the illness was variously described.

Baird was charged with three counts of murder and one count of feticide. See I.C. § 35-
42-1-1(1) (murder) and I.C. § 35-42-1-6 (feticide). The State sought the death penalty, alleging
the multiple murders as the aggravating factor that made Baird eligible. See I.C. § 35-50-2-
9(b)(8). He was offered a plea agreement that called for a term of years, but on the day
scheduled for the hearing, he told the trial court he had changed his mind about accepting it.
Trial Record at 600.

At the conclusion of the guilt phase of the trial, the jury rejected the options of finding
Baird not guilty by reason of insanity or guilty but mentally ill. See Ind. Code § 35-41-3-6 (“A
person is not responsible for having engaged in prohibited conduct if, as a result of mental
disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the
offense); I.C. 35-36-1-1 (“‘Mentally ill’” means having a psychiatric disorder which
substantially disturbs a person’s thinking, feeling, or behavior and impairs the person’s ability to
function.”). Instead, the jury found Baird guilty as charged.

At the conclusion of the penalty phase, the jury unanimously recommended the death
sentence be imposed for the murders of Baird’s mother and father, but recommended the death
sentence not be imposed for the murder of his wife. See I.C. § 35-50-2-9(e) (providing that a
jury may recommend the death penalty only if it finds the state has proved the aggravating
circumstance beyond a reasonable doubt and that any mitigating circumstances are outweighed
by the aggravating circumstance.).

The Montgomery Circuit Court followed the jury’s recommendation and sentenced Baird
to death. The trial court also imposed a sixty-year sentence for the murder of Baird’s wife and
an eight-year sentence for the feticide.

The convictions and sentences were affirmed at each stage of subsequent review. On
direct appeal, we addressed at some length Baird’s argument that in sentencing him to death, the
trial court had erred in refusing to consider two mitigating circumstances: whether Baird “was
under the influence of extreme mental or emotional disturbance when the murder was
committed,” and whether his “capacity to appreciate criminality of [his] conduct or to conform
that conduct to the requirements of law was substantially impaired as a result of mental disease
or defect.” See I.C. § 35-50-2-9(c)(2) & (c)(6). We independently reweighed the aggravating
and mitigating circumstances, and determined the death sentence was appropriate for the murder
of Baird’s parents:

[W]e are inclined to find that appellant's mental condition at the time of the
murders of his parents is entitled to some mitigating value. The psychiatric
evidence supports a determination that appellant has an obsessive-compulsive
disorder. The testimony was uncontradicted that appellant sincerely believed that
the federal government was going to give him one million dollars for his ideas on
how to solve the country's economic problems, and that he and Nadine would use
the money to purchase and equip a 253 acre farm. There was no basis in
experience for this belief. At this time appellant had no income, was in debt, and
Nadine was pregnant. Appellant was so obsessed with the idea of buying this
farm that he set a closing date at which time he was to tender a $50,000 certified
check, and as he finally realized that his grandiose plans would be exposed as a
mere fantasy to the persons whose derision would be most destructive to him he

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 was compelled to protect himself from them. We find that appellant was under
the influence of extreme mental or emotional disturbance when the murders were
committed, but find this mitigating factor to be in the low range. We also find
that the mitigating circumstances of appellant's regular employment, church
participation, military service, law abiding nature, and good character in the
community each to be in the low range. Appellant's lack of prior criminal history
is a mitigating factor in the medium range. Upon review, we find that these
mitigating circumstances as we have determined and evaluated them are
outweighed by the sole aggravating circumstance, namely, the murders of
Kathryn and Arthur Paul Baird, I, having already committed the murder of Nadine
Baird, an aggravating circumstance in the highest range. Appellant's sentence is
not arbitrary or capricious and is not manifestly unreasonable.

Baird v. State, 604 N.E.2d 1170, 1182 (Ind. 1992), reh’g denied (1993), cert. denied, 510 U.S.
893 (1993). In the post-conviction appeal, Baird claimed the jury would not have recommended
the death penalty had it heard the opinion of another mental health expert that Baird suffered
from a “delusional disorder” that rendered him unable to control his behavior, but we concluded:

[E]ven if the jury, and this Court on direct appeal, did not know that “delusional
disorders” as such existed, each was equipped with the facts of Baird’s bizarre
conduct and with the psychiatrists’ conclusions that Baird was volitionally
impaired. [The new testimony] simply does not mandate a new interpretation of
the facts. . . . The testimony to which Baird points is cumulative not pathbreaking
and provides no assurance that a different result would probably have been
reached. Accordingly, Baird’s claim that the death sentence was excessive,
disproportionate, or inappropriate is barred by res judicata, and the standard for
revisiting the issue based on new evidence is not met.

Baird v. State, 688 N.E.2d 911, 914-15 (Ind. 1997), reh’g denied (1998), cert. denied 525 U.S.
849 (1998). We affirmed the trial court’s judgment denying relief.

The federal district court denied a petition for writ of habeas corpus in Baird v. Davis,
No. TH 98-70-C-M/F (S.D. Ind. Jul. 17, 2003) (unpublished order), affirmed in Baird v. Davis,
388 F.3d. 1110 (7th Cir. 2004), cert. denied, 543 U.S. ____, 125 S.Ct. 1849 (Apr. 18, 2005). As
to Baird’s mental illness, the Seventh Circuit Court of Appeals noted that the United States
Supreme Court has not yet ruled out the execution of persons who kill under an irresistible
impulse and has made clear that in balancing aggravating and mitigating circumstances, courts
are not required to give any fixed weight to any particular mitigating circumstance. The majority
view of that court also called Baird’s claim that we had overlooked the relevant mitigating
circumstance in Indiana Code § 35-50-2-9(c)(6) as having no merit. 388 F.3d at 1117.

Baird has thus completed the review of the convictions and death sentence to which he is
entitled as a matter of right. We have jurisdiction because Baird is sentenced to death. See Ind.
Appellate Rule 4(A)(1)(a).

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 Indiana’s Post-Conviction Rules
As just indicated, Baird has already availed himself of our rule that permits a person
convicted of a crime in an Indiana state court one collateral review of a conviction and sentence
in a post-conviction proceeding. See Ind. Post-Conviction Rule 1. To litigate another or
“successive” post-conviction claim, Baird needs our permission. We will authorize such a
proceeding to go forward only “if the petitioner establishes a reasonable possibility that the
petitioner is entitled to post-conviction relief.” P-C.R. 1 (12)(b). In deciding whether Baird has
made the required showing, we consider the applicable law, the petition, materials from his prior
appeals and post-conviction proceedings including the record, briefs and court decisions, and any
other material we deem relevant. See id.

Baird, by counsel, has filed a “Motion For Permission to Proceed on a Successive Post-
Conviction Relief Petition,” and has tendered a “Proposed Successive Petition For Post-
Conviction Relief.” The State filed its “Verified Response in Opposition to Motion for
Permission to Proceed on a Successive Post-Conviction Relief Petition,” and Baird was allowed
to file “Arthur Baird’s Reply.”

Baird’s lengthy, 71-page petition does not follow the form prescribed by our rules. See
P-C. R. 1 (12)(a); Appendix to Rule PC 1. In particular, the petition does not concisely state his
claims and distilling them has been difficult, but we have endeavored to address them
nevertheless.

The Claims
1. Baird’s mental illness does not render the death sentence illegal. We discern
Baird’s general claim to be that he should not have been sentenced to death because he was
mentally ill when he committed the murders. As explained below, we conclude the claim is
procedurally defaulted because it was not raised in his earlier appeals, is barred by the doctrine
of res judicata because it has already been decided against him, or is without merit. We do not
discern a claim that Baird is presently not competent to be executed, and in any event, Baird has
not shown he would be entitled to such protection.

a. Baird has not shown he is entitled to relief under international law. Baird claims
that international treaties, agreements to which the United States is a party and customary
international law prohibit death sentences for mentally ill persons. See Proposed Successive
Petition (hereafter “Succ. Pet.”) at 12-16. This claim appears to have been available to Baird at
least as early as his first post-conviction proceeding, and Baird provides no support for his
assertion that it was not. See, e.g., Reply at 3. Though he cites some materials published after
his state-court proceedings, the general tenor of those materials was widely available earlier and
we are not convinced that international law on the subject of the execution of mentally ill persons
has significantly changed since his earlier appeals to us. As such, this claim is procedurally
defaulted. See Stevens v. State, 770 N.E.2d 739, 761 (Ind. 2002) (summarily denying prisoner’s
challenge that Indiana’s lethal injection procedure violates international law; claim was
procedurally defaulted in post-conviction proceedings because the claim had been available on
direct appeal but not raised).

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 Even were we to consider this claim on the merits, we would conclude that Baird has not
met the required showing of reasonable possibility of success. He cites three documents as
prohibiting his execution: the International Covenant on Civil and Political Rights (the
“Covenant”), the Universal Declaration of Human Rights (the “Declaration”), and the
Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment
(“CAT”). None of these documents specifically discuss execution of mentally ill persons. In
addition, prisoners like Baird lack standing to claim relief under the documents. See, e.g., Sosa
v. Alvarez-Machain, 542 U.S. 692, ___, 124 S.Ct. 2739, 2767 (2004) (holding that the
Declaration does not of its own force impose obligations as a matter of international law, and
though the Covenant is a binding source of international law, the United States ratified the
Covenant on the express understanding that it did not itself create obligations enforceable in
American courts).

b. Baird has not shown he is entitled to relief under the Eighth Amendment to the
United States Constitution. Baird argues that sentencing to death a person who has a mental
illness is contrary to the Constitution’s Eighth Amendment, which prohibits “cruel and unusual
punishment.” See Succ. Pet. at 17-37. In his two prior appeals, we rejected various claims Baird
raised that the death sentence was excessive, disproportionate, or inappropriate. See Baird v.
State, 604 N.E.2d at 1182-84 (direct appeal); Baird v. State, 688 N.E.2d at 913-15 (post-
conviction appeal). To the extent Baird’s present claim is the same as those we have already
decided, his present claim is barred by the doctrine of res judicata. See, e.g., Wallace v. State,
820 N.E.2d 1261, 1263 (Ind. 2005); Stevens, 770 N.E.2d at 746. To the extent the claim was
available to Baird in his prior proceedings but was not raised then, the claim is procedurally
defaulted. See, e.g., Wallace, 820 N.E.2d at 1264; Stevens, 770 N.E.2d at 746.

What remains is Baird’s assertion that “evolving standards of decency,” “changes in the
legal landscape,” and “the development of a national consensus” since his state-court
proceedings are such that a death sentence now constitutes cruel and unusual punishment for a
person with a mental illness. We conclude Baird has not met his burden of showing a reasonable
possibility of relief on this claim.

The United States Supreme Court has held that a death sentence is an unconstitutional
punishment for persons who are insane, see Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct.
2595, ___ (1986), who are mentally retarded, Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct.
2242, 2252 (2002), and who are juveniles, see Roper v. Simmons, ___ U.S. ___, 125 S.Ct. 1183,
1194 (2005). But as the Seventh Circuit Court of Appeals noted, the Supreme Court “has not yet
ruled out the execution of persons who kill under an irresistible impulse.” Baird v. Davis, 388
F.3d at 1114. We decline to recognize a new exception under the Eighth Amendment in Baird’s
case.

c. Baird has not shown he is entitled to relief under Indiana law. Baird argues that
sentencing to death a person who suffers from a serious mental illness is contrary to Article I,
section 16 of the Indiana Constitution, which states, in part, that “[c]ruel and unusual
punishments shall not be inflicted” and “[a]ll penalties shall be proportioned to the nature of the
offense.” See Succ. Pet. at 40-53. We have already considered and rejected the various claims
Baird raised in his direct appeal and post-conviction appeal about whether the death sentence

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was excessive, disproportionate, or inappropriate. To the extent Baird’s present claim is the
same as those we have previously decided, it is barred by the doctrine of res judicata. See, e.g.,
Wallace, 820 N.E.2d at 1263. To the extent the claim was available to Baird in those prior
appeals but was not raised, the claim is procedurally defaulted. Id. at 1264.

As with his Eighth Amendment claim, what remains is Baird’s assertion that “evolving
standards of decency,” “changes in the legal landscape,” and “the development of a consensus”
in Indiana since his prior state-court proceedings are such that a death sentence for a person with
a mental illness violates the state constitution. We conclude Baird has not met his burden of
showing a reasonable possibility of relief on this claim.

Indiana’s death penalty scheme takes into account a person’s mental health, as Baird’s
case demonstrates. A jury may decide the defendant is not guilty by reason of insanity or guilty
but mentally ill. Once convicted, a defendant’s mental status is considered again in the penalty
phase as a mitigating circumstance. See I.C. § 35-50-2-9(c). In Harris v. State, 499 N.E.2d 723,
727 (Ind. 1986), this Court held that sentencing to death a defendant found guilty but mentally ill
was not unconstitutional. A more recent decision noted that no other defendant who had been
found guilty but mentally ill had been sentenced to death. See Prowell v. State, 741 N.E.2d 704,
718 n.8 (Ind. 2001). But this fact does not render Baird’s death sentence unconstitutional. In
any event, Baird’s jury rejected the option of finding him guilty but mentally ill. See also
Corcoran v. State, 774 N.E.2d 495 (Ind. 2002) (affirming death sentence on direct appeal for
quadruple killing by defendant diagnosed with schizotypal personality disorder; rejecting
argument that death sentence was manifestly unreasonable). We decline to decide that
developments since Harris render the death penalty unconstitutional for Baird.

2. Baird was not abandoned by counsel in his first post-conviction proceeding.
Baird claims his attorney made two mistakes during the first post-conviction proceeding by
failing: (a) to argue that we had not considered the mitigating circumstances in Indiana Code §
35-50-2-9(c)(6); and (b) to challenge whether jurors might have allowed their own knowledge of
Baird to influence their decision to sentence him to death.

Because Baird challenges the performance of his post-conviction attorney, his claims are
subject to Graves v. State, 823 N.E.2d 1193, 1195-97 (Ind. 2005). In Graves, we discussed the
multiple safeguards concerning counsel for criminal defendants, and noted that post-conviction
proceedings, which are not criminal actions, need not be conducted under the same standards for
trial and appellate counsel stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Instead, we reiterated that the standard is whether "counsel in fact appeared
and represented the petitioner in a procedurally fair setting which resulted in a judgment of the
court,” and we reaffirmed our prior holding that a claim of defective performance in a post-
conviction proceeding “poses no cognizable grounds for post-conviction relief.” Graves, 823
N.E.2d at 1196 (noting however, that a contention that petitioner’s post-conviction counsel did
not provide adequate legal assistance could provide a prisoner with a basis for replying to a state
claim of prior adjudication or abuse of process).

a. Our consideration of mitigating circumstances. Baird claims his post-conviction
counsel was ineffective because counsel failed to direct our attention to the mitigating

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circumstance in Indiana Code § 35-50-2-9(c)(6), as a result of which, Baird asserts, we failed to
consider the evidence that Baird had been unable to conform his conduct to the requirements of
the law when he murdered his parents. See Succ. Pet. at 55-64.

Counsel appeared for Baird in the post-conviction proceeding and filed a 98-page brief in
the appeal that followed, much of which was devoted to arguing the death sentence was error.
Clearly, Baird was not abandoned by counsel. Under the standard discussed in Graves, he has no
cognizable claim.

To the extent Baird asserts a free-standing claim that we committed error by not
considering the (c)(6) mitigator, the claim is procedurally defaulted for not having been raised in
the direct appeal or the post-conviction appeal. See, e.g., Conner v. State, 829 N.E.2d 21, 24
(Ind. 2005); Stevens, 770 N.E.2d at 746.

This claim is also barred by the doctrine of res judicata. The Seventh Circuit majority
expressly rejected it as having no merit. See Baird v. Davis, 388 F.3d at 1117. We addressed the
propriety of Baird’s sentence and discussed the evidence that Baird was “volitionally impaired”
at some length in both appeals. See Baird v. State, 604 N.E.2d at 1182-84 (direct appeal); Baird
v. State, 688 N.E.2d at 913-14 (post-conviction). We did not exclude consideration of the (c)(6)
mitigating circumstance. Rather, we gave that circumstance less weight than Baird advocated.
To the extent Baird requests that we review his sentence again, we decline.

b. Jurors who knew or may have known Baird from work. Baird asserts that jurors
who had worked for the same company as Baird (or were married to people who had) may have
had information about Baird’s behavior that may have influenced their reaction to the evidence
concerning Baird’s mental health and this information may have been shared with other jurors
during deliberations. See Succ. Pet. at 64-69. Baird claims post-conviction counsel’s failure to
investigate and raise this claim denied him a procedurally fair post-conviction proceeding.

Baird fails to state a cognizable claim under Graves. Baird’s petition shows that post-
conviction counsel investigated a potential claim of this nature by contacting at least one of the
jurors. That counsel chose not to present claims counsel believed would not likely prevail is
neither abandonment by counsel nor did that decision deprive Baird of a procedurally fair post-
conviction proceeding. Cf. Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997) (“[T]he reviewing
court should be particularly sensitive to the need for separating the wheat from the chaff in
appellate advocacy, and should not find deficient performance when counsel’s choice of some
issues over others was reasonable in light of the facts of the case and the precedent available to
counsel when that choice was made.”) To the extent Baird’s highly speculative claim includes
the performance of trial or appellate counsel, the claim is procedurally defaulted. See Stevens,
770 N.E.2d at 746.

Conclusion
Baird has not met his burden of establishing a reasonable possibility that he is entitled to
post-conviction relief. Accordingly, we decline to authorize the filing of a successive petition for
post-conviction relief. A date for execution of the death sentence will be set by separate order.

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 The Clerk is directed to send a copy of this order to all counsel of record and to West
Group for publication in the bound volumes of this Court’s decisions.

Done at Indianapolis, Indiana, this 19th day of July, 2005.

/s/Randall T. Shepard
Chief Justice of Indiana

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
Rucker, J., concurs with separate opinion.

Rucker, J., concurring.

Largely for the reasons the majority expresses, I concur with the decision to deny Baird’s
request to file a successive petition for post-conviction relief. I write separately only to
emphasize that Baird makes no claim based on his present mental state. I continue to believe
that a sentence of death is inappropriate for a person suffering a severe mental illness. See
Corcoran v. State, 774 N.E.2d 495, 502 (Ind. 2002) (Rucker, J., dissenting). However, nowhere
in his lengthy petition does Baird contend that he is now mentally ill and thus should not receive
the ultimate penal sanction. Instead, Baird makes a variety of claims based on his mental illness
at the time of the murders. But some of these claims already have been decided against Baird in
earlier appeals. And others could have been raised in those same appeals but were not. In either
event they are not now available for collateral review. With this additional understanding, I
agree Baird has not met his burden of establishing there is a reasonable possibility that he is
entitled to post-conviction relief.

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