ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Karen Freeman-Wilson
Public Defender of Indiana Attorney General of Indiana
Thomas C. Hinesley Andrew L. Hedges
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana
Barbara S. Blackman
Deputy Public Defender
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
CHRISTOPHER M. STEVENS )
Appellant (Petitioner Below), )
)
v. ) No. 79S00-9804-PD-00250
)
STATE OF INDIANA )
Appellee (Respondent Below). )
________________________________________________
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable George J. Heid, Judge
Cause No. 79D02-9402-CF-24
________________________________________________
On Appeal from the Denial of Post-Conviction Relief
June 26, 2002
DICKSON, Justice
In 1995, Christopher M. Stevens was convicted of the 1993 murder of
ten-year-old Zachary Snider. In accord with the jury's recommendation, the
trial court ordered the death sentence. This Court affirmed the conviction
and sentence on direct appeal. Stevens v. State, 691 N.E.2d 412 (Ind.
1997), cert. denied, 575 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998).
The defendant thereafter petitioned for post-conviction relief. After
extensive proceedings and the presentation of evidence, the post-conviction
court denied his petition. He now appeals from the denial of post-
conviction relief. The factual details of the offense are detailed in our
opinion on direct appeal. Id. at 416-420. We affirm the denial of post-
conviction relief.
The defendant enumerates seven issues presented for review. We
regroup them as follows: (1) ineffective assistance of trial counsel; (2)
governmental interference with the right to counsel; (3) ineffective
assistance of appellate counsel; (4) unreliability and unconstitutionality
of the death sentence; (5) incomplete, unfair, and biased post-conviction
relief adjudication.
Defendants who have exhausted the direct appeal process may challenge
the correctness of their convictions and sentences by filing a post-
conviction petition. Langley v. State, 256 Ind. 199, 203, 267 N.E.2d 538,
540 (1971). Post-conviction proceedings are civil proceedings, and a
defendant must establish his claims by a preponderance of the evidence.
Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). Because the
defendant is now appealing from a negative judgment, to the extent his
appeal turns on factual issues, he must convince this Court that the
evidence as a whole leads unerringly and unmistakably to a decision
opposite that reached by the post-conviction court. See Timberlake v.
State, 753 N.E.2d 591, 597 (Ind. 2001). In other words, the defendant must
convince this Court that there is no way within the law that the court
below could have reached the decision it did. Spranger v. State, 650
N.E.2d 1117, 1120 (Ind. 1995). We do not defer to the post-conviction
court's legal conclusions, but do accept its factual findings unless they
are "clearly erroneous." Ind.Trial Rule 52(A); Conner v. State, 711 N.E.2d
1238, 1245 (Ind. 1999); State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind.
1996), reh'g granted in part, 681 N.E.2d 181 (Ind. 1997). As we recently
stated in Timberlake:
Post-conviction procedures do not afford a petitioner with a super-
appeal, and not all issues are available. Rouster v. State, 705
N.E.2d 999, 1003 (Ind. 1999). Rather, subsequent collateral
challenges to convictions must be based on grounds enumerated in the
post-conviction rules. P-C.R. 1(1); Rouster, 705 N.E.2d at 1003. If
an issue was known and available but not raised on direct appeal, it
is waived. Rouster, 705 N.E.2d at 1003. If it was raised on appeal,
but decided adversely, it is res judicata. Id. (citing Lowery v.
State, 640 N.E.2d 1031, 1037 (Ind. 1994)). If not raised on direct
appeal, a claim of ineffective assistance of trial counsel is properly
presented in a post-conviction proceeding. Woods v. State, 701
N.E.2d. 1208,1215, [1220] (Ind. 1998). A claim of ineffective
assistance of appellate counsel is also an appropriate issue for post-
conviction review. As a general rule, however, most freestanding
claims of error are not available in a post-conviction proceeding
because of the doctrines of waiver and res judicata.
753 N.E.2d at 597-98. Furthermore, any "[i]ssues not raised in the
petition for post-conviction relief may not be raised for the first time on
post-conviction appeal." Allen v. State, 749 N.E.2d 1158, 1171 (Ind.
2001)(citing Ind.Post-Conviction Rule 1(8)("All grounds for relief
available to a petitioner under this rule must be raised in his original
petition.")); Howard v. State, 467 N.E.2d 1, 2 (Ind. 1984)("It is well
settled that issues which are not raised either at the trial level, on
appeal, or in a post-conviction petition are waived.").
1. Ineffective Assistance of Trial Counsel
The defendant contends that deficiencies in his trial representation
created a reasonable probability that the results of both the guilt phase
and sentencing phase would have been different. In this appeal, he asserts
numerous claims of alleged errors of trial counsel.
To succeed before the fact finder on his claim of ineffective
assistance of counsel, the defendant needed to prove by a preponderance of
the evidence not only that his trial counsel's representation fell below an
objective standard of reasonableness, but also that his counsels' errors
were so serious as to deprive him of a fair trial because of a reasonable
probability that, but for counsel's unprofessional errors, the result would
have been different. See Bell v. Cone, ___ U.S.___, 122 S.Ct. 1843, 1846,
___ L.Ed.2d ___ (2002); Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct.
1495, 1511, 146 L.Ed.2d 389, 416 (2000); Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Woods v. State,
701 N.E.2d 1208, 1224 (Ind. 1998). A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Strickland,
466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. In determining
whether a defendant proves his claim of ineffective assistance of counsel,
the fact-finding court is guided by various important guidelines. There is
a strong presumption that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.
Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Counsel is afforded
considerable discretion in choosing strategy and tactics, and these
decisions are entitled deferential review. Id. at 689, 104 S.Ct. 2065, 80
L.Ed.2d at 694. Isolated mistakes, poor strategy, inexperience, and
instances of bad judgment do not necessarily render representation
ineffective. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001); Timberlake,
753 N.E.2d at 603.
a. Inadequate Investigation
The defendant first asserts that his two attorneys at trial failed to
conduct a reasonable investigation into the facts and the law of his case.
He alleges that they failed to timely begin their investigation, to pursue
indicated avenues of investigation, to determine necessary expert
consultation, to adequately pursue funding for experts and investigation,
and to competently hire and assess the one mental health expert they did
hire. The defendant asserts that his trial counsel failed to develop a
coherent theory of the case that was legally and factually supported and
inherently consistent across the guilt and penalty phases. He maintains
that, had his counsel conducted a reasonable investigation, they would have
uncovered evidence of his mental illness and substance abuse relevant both
to the guilt and penalty phases of his trial.
The post-conviction court concluded that defense counsel "adequately
investigated the facts and law related to the guilt phase of [the
defendant's] trial," Record[1] at 710, and that counsel were "not
ineffective for failing to timely seek and secure necessary and appropriate
investigative and expert assistance during the trial." Id.
The defendant was represented at trial by two attorneys who were
found to meet the heightened criteria of experience and training required
for appointment in capital cases.[2] Trial Record at 59. They confronted
a significant challenge. The defendant had admitted to a family member
that he killed Zachary Snider and disclosed where he had concealed the
body. After his arrest, the defendant admitted in a videotaped confession
that he had repeatedly molested the ten-year old boy and then killed him,
first attempting to do so by suffocating him with a pillow, then by
strangling him with a cord, and finally by suffocating him by wrapping a
trash bag over his head. This crime occurred while the defendant was on
probation for a prior conviction of child molesting.
The defendant's trial attorneys sought and obtained funds to hire a
mitigation investigator, fact investigator, paralegal, and psychologist,
and all billings were ordered sealed. The mitigation investigator had
served as a sentencing consultant and mitigation investigator for nine
years prior to the defendant's trial and had completed the Indiana Public
Defender Council's death penalty mitigation training course. The
psychologist, Dr. Lawrence Lennon, examined Stevens and later testified for
the defense during the penalty phase of the trial. Dr. Lennon had been
recommended by the mitigation investigator. Other members of the criminal
defense community also told Stevens's attorneys that Dr. Lennon had done a
"very nice job" in testifying in another death penalty case. Dr. Lennon
holds a Ph.D. in clinical Psychology from Miami University in Ohio. He was
a psychology professor at St. Joseph's College, where he spent four years
as the chair of the Psychology Department, and was clinical director of the
Child and Adolescent Psychiatric Center at Humana Hospital in Indianapolis
from 1991 to 1994. Dr. Lennon conducted a preliminary evaluation of the
defendant prior to April 13, 1994 and met with him five times from June
through December 1994. Dr. Lennon also met with the defendant's parents
and siblings, and reviewed school records, records from the Hamilton
Center, and arrest records. Other individuals from Dr. Lennon's office,
including a social worker and another psychologist, participated in
evaluations of the defendant. Defense counsel considered Dr. Lennon a good
fit because of his expertise in treating children and adolescents, and the
defendant's attorneys sought and received a transcript of Dr. Lennon's
testimony in a case the attorneys felt had similar issues. The defendant's
trial counsel sought discovery and filed multiple pretrial motions and
supporting briefs, including motions to suppress, motions in limine,
motions to dismiss, and a motion for change of venue.
The defendant claims, in part, that his counsel unreasonably delayed
their investigation. Stevens was tried for murder in January 1995, within
seventeen months of his arrest in July 1993. Defense counsel entered their
appearances in August 1993. In November 1993 counsel made their first
request for funding for experts. This request was granted in May 1994
along with funds for an investigator.[3] Funding for mitigation
investigation was secured in January 1994, and a mitigation specialist
joined the defense. Defense counsel periodically requested additional
amounts for the mitigation, fact, and expert witnesses. Such funding
requests were approved. Billing records indicate that information was
being gathered, procedural issues were being worked out with the prosecutor
and the court, and research was being done on legal issues during the three
months before the first funding request. Supp. Record at 25-29. Because
of successful motions for continuance, Stevens was not tried until seven
months after the time counsel added the psychologist and the fact
investigator to their team of a paralegal and mitigation investigator.
These facts do not compel a finding of deficient performance in the timing
of trial counsel's investigation.
The defendant also asserts that his counsel unreasonably limited
their investigation of the defendant's substance abuse and mental illness,
foreclosing the development of a viable defense and mitigation strategy
based on his mental disease and the effects of his substance abuse in favor
of a defense unsupported by the law or the facts and a mitigation case that
was of very low weight. He challenges the post-conviction court's finding
that counsel were "not ineffective for failing to hire a toxicologist to
offer expert testimony about Petitioner's use of drugs or alcohol." Record
at 716. Similarly, the defendant also asserts that his counsel failed to
adequately investigate his mental illnesses and investigate the possibility
of mental disease or defect as a defense or mitigation. Specifically, he
claims that his counsel "did not retain a consultant on mental health
issues, seek a variety of expert mental health opinions, or even acquaint
themselves with the forensic approach of the one expert they retained."[4]
Br. of Petitioner-Appellant at 26.
During the guilt phase trial, the defense strategy was to urge that
the killing was done in sudden heat and thus, if the defendant were guilty,
he was guilty of voluntary manslaughter and not murder. At post-
conviction, defense counsel testified that this was one of the alternative
theories they had been considering from "day one," and when Stevens's
confession was not suppressed, voluntary manslaughter became the theory of
the case. Record at 2511-12. Counsel based this theory on a statement in
the defendant's confession that he "snapped" or "went off." Record at
2512. Defense counsel tendered an instruction on voluntary manslaughter,
which the trial court refused to give. During closing argument, defense
counsel nevertheless asked the jury to return a verdict of voluntary
manslaughter.
While the defendant argues in retrospect that a mental illness defense
would have been more effective, his proposed avenue was not without its
pitfalls. The post-conviction court noted that, had defense counsel
pursued this defense, they would have opened the door to the admission of
substantial incriminating evidence not otherwise presented during the guilt
phase. This evidence included testimony of a witness that, upon the
defendant's prior release from jail onto probation for a previous
conviction of child molesting, the defendant had declared that he planned
to kill his next child molesting victim to avoid returning to jail. The
trial court determined that defense counsel adequately investigated issues
of substance abuse and mental illness and reasonably chose to pursue a
different strategy.[5] The post-conviction court did not err in denying
relief on this claim.
b. Deficient Preparation for and Performance at Trial
Enumerating numerous specific instances of claimed deficiencies, the
defendant contends that his trial counsel provided constitutionally
ineffective assistance in their preparation for and performance at the
guilt, penalty, and sentencing phases of his trial.
(1) Voluntariness of Confession
The defendant argues that his lawyers failed to competently litigate
the reliability and voluntariness of his confession to police. He asserts
that his counsel could have argued that he "disassociated during the police
interrogation" and exhibited other signs of mental illness that should have
been raised in the motion to suppress and in asking the jury to find the
confession unreliable.
One of the defendant's post-conviction witnesses, Dr. Phillip Coons,
gave his opinion that there were at least two times when the defendant was
dissociating during his confession. The post-conviction court acknowledged
this testimony, but the court concluded that the defendant had presented no
evidence of coercive police acts and therefore had not proven the predicate
to finding a confession not voluntary. Record at 722. In our opinion on
direct appeal, we rejected the defendant's claim that his confession was
involuntary, noting:
Finally, review of the videotape clearly indicates no elements of
coercion. The entire interview lasted about an hour. Instead of
showing overbearing officers soliciting short, "yes/no" responses from
a broken, harassed, tired suspect, the tape shows non-threatening
police officers asking general questions of Stevens, and then an alert
responsive Stevens supplying long, detailed narrative.
Stevens, 691 N.E.2d at 424. To the extent that the defendant's post-
conviction claim on this issue is not be foreclosed by res judicata, it is
governed by the principle that a defendant's claimed mental condition does
not render a confession involuntary absent coercive police conduct. See
Connelly v. Colorado, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d
473, 484 (1986)(holding that even when defendant's mental condition is
questioned, coercive police conduct is a predicate to finding a defendant's
confession involuntary); Pettiford v. State, 619 N.E.2d 925, 928 (Ind.
1993)("Although a person's mental condition is relevant to the issue of
susceptibility to police coercion, where the person voluntarily makes a
confession without police coercion the confession may be considered in
spite of the mental condition."). We find that there is no reasonable
probability that the trial court would have suppressed the confession even
had defense counsel presented all the evidence presented at the post-
conviction proceedings, nor is it reasonably probable that the jury's
assessment of the defendant's confession would have been affected by this
testimony. The post-conviction court did not err in denying relief on this
claim.
(2) Venue Change
The defendant contends that he was prejudiced by his counsel's
deficient performance when they failed to seek a second change of venue.
Upon motion of defense counsel, the case was removed from Putnam County,
where the crime was committed, and venued to Tippecanoe County, two
counties north of Putnam County. The defendant now argues that both
counties are within the Indianapolis media market,[6] that his counsel had
no strategic reason to keep the case in Tippecanoe County, and that the
failure to seek a second change of venue prejudiced him by denying him his
right to a trial by an impartial jury.
The post-conviction court found that defense counsel were not
ineffective for failing to make a second motion for a change of venue due
to pretrial publicity. The court found that, given the inherent
newsworthiness of the case, media coverage would have been prevalent
anywhere and although the coverage was at times extensive it was not
necessarily on the front page as it would have been in Putnam County. The
court also found that Stevens failed to demonstrate prejudice as the trial
record showed that every panel of the venire was carefully questioned about
pretrial publicity by the court, State, and defense counsel. The evidence
does not compel a decision opposite that reached by the post-conviction
court.
(3) Jury Questionnaire and Selection
The defendant challenges his trial counsel's performance in jury
selection and particularly as to the jury questionnaires submitted to
prospective jurors.
He argues that his trial counsel used questionnaires that failed to
address mitigation issues or to explain the meaning of "life without
parole," and thus failed to ensure "that prospective jurors understood they
could address future dangerousness with this sentencing option." Br. of
Petitioner-Appellant at 34. We first note that the questionnaire form was
not generated by counsel but prepared by the trial court and submitted to
counsel for review. Trial Record at 343. Jury questionnaires are a useful
tool employed by courts to facilitate and expedite sound jury selection.
Their proper purpose is not to condition or indoctrinate prospective jurors
with the parties' contentions, notwithstanding attempts of some counsel to
the contrary. Ineffective assistance of counsel may not be based upon an
alleged failure of counsel to thus misuse jury questionnaires.
The defendant further alleges that his counsel were deficient in jury
selection by failing to "integrate their mitigation theory into the voir
dire process," Br. of Petitioner-Appellant at 34, and to exhaust peremptory
challenges. We have held that it is permissible to use voir dire to
inquire into jurors' biases or tendencies to believe or disbelieve certain
things about the particular line of defense. Wisehart v. State, 693 N.E.2d
23, 45-46 (Ind. 1998). The record reveals that defense counsel's voir dire
questions extensively inquired regarding the jurors' openness to
considering mitigating factors to prevent the imposition of the death
penalty. We decline, however, to find a criminal defense attorney's
performance to be deficient for failing to condition jurors as to the
particular mitigation evidence anticipated in an individual case.
The post-conviction court found that trial counsel were not
ineffective for failing to exhaust their peremptory challenges. The court
noted that, between the two of them, the defendant's trial counsel had
spent over fifty hours reviewing the completed jury questionnaires. They
challenged nineteen jurors for cause, seventeen of which were granted. The
court noted that they used seventeen of their twenty peremptory challenges,
but for strategic reasons did not exhaust them because "what was coming up
was worse." Record at 726. The court also observed that counsel
successfully rehabilitated several jurors that the State challenged for
cause, forcing the State to exercise peremptory challenges. The evidence
does not compel a decision opposite that reached by the post-conviction
court.
(4) Victim Impact Evidence
The defendant argues that counsel were deficient in not objecting to
victim impact evidence in the State's opening statement and during its case
in chief. He first urges that his counsel should have objected to the
following remarks during the State's opening statement: "Zachary Snider was
a typical ten-year-old. He loved to fish, play ball, ride his bicycle, and
he couldn't sit still for long . . . His parents, Todd and Sandi Snider,
both worked to make ends meet." Trial Record at 3648. The defendant also
challenges his trial counsel's failure to object to the State's use of a
picture of the Zachary Snider holding a fish. This picture was passed to
the jury and was allegedly displayed by the prosecution on four other
occasions during the guilt phase of the trial. Defense counsel never
objected to the photograph and the defendant claims they were deficient for
not objecting to this "prejudicial drumbeat of victim impact evidence."
Br. of Petitioner-Appellant at 38.
The post-conviction court found that defense counsel was not
ineffective for failing to object to the introduction and use of the
photograph. One of the defendant's defense attorneys testified during the
post-conviction proceedings that, while he believed the use of the
photograph was repetitive, he observed that it was sometimes prudent to not
object so as to not draw the jury's attention to the evidence. A decision
to not object to evidence when the objection may be more damaging than the
evidence is within the wide range of professionally competent assistance.
The trial court concluded, "Defense counsel's decision not to object to the
admission of the [victim impact evidence] was a reasonable decision not to
draw the jury's attention to this testimony." Record at 734. We agree.
Because this represents reasonable trial strategy and because of the
questionable merit of the allegedly omitted objections, the evidence does
not compel a decision opposite that reached by the post-conviction court.
(5) Loss of Right to testify
As one of his enumerated examples of alleged ineffective assistance of
counsel, the defendant contends that his trial counsel gave him incorrect
advice, upon which he based his decision not to testify at trial. He
argues that counsel's advice was based upon the presumption that the
defendant's testimony could add nothing supportive of the defense's
strategy to seek jury a instruction on voluntary manslaughter. The post-
conviction court, however, found:
On the contrary, defense counsel were concerned about having
Petitioner testify because he was an [sic] chronic liar who would have
been a bad witness. Moreover, if Petitioner had testified during the
guilt phase, there is a danger that he would open the door to
otherwise inadmissible evidence. Defense counsel's advice that
Petitioner not testify was a reasonable strategic decision based on
sound professional judgment.
Record at 724. We are not persuaded that the evidence compels a decision
opposite that reached by the post-conviction court.
(6) Pursuing Voluntary Manslaughter as Defense Theory
The defendant claims that his trial counsel were ineffective for
pursuing a "fundamentally flawed" approach to the case by proceeding on a
theory of voluntary manslaughter. They tendered three proposed
instructions that dealt with voluntary manslaughter, but these were
rejected by the trial court. The defendant argues that there was no
evidence in the record to support this theory, and that there was another
viable defense available but not used.
The defendant urges that, if defense counsel had consulted other
mental health experts, counsel "would have learned of [the defendant's]
dissociative disorder, borderline personality disorder, chemical
dependency, and LSD impairment at the time of the offense." Br. of
Petitioner-Appellant at 42. In the post-conviction proceedings and in this
appeal, the defendant's present counsel assert that the defendant was raped
as a child; that at the time of the killing the defendant switched his
identity with that of Zachary; that the defendant killed Zachary "because
it's what he would have wanted in that molestation at age 10, to have been
killed by his abuser;" and that the defendant's ability to appreciate the
wrongfulness of his conduct "was disengaged when he was dissociating." Id.
The defendant argues further that, even if the voluntary manslaughter
defense were regarded as legitimate strategy, this would not excuse the
failure to present the mental illness defense.
The post-conviction court found that counsel's decision to pursue the
voluntary manslaughter strategy, while ultimately unsuccessful, did not
amount to deficient performance. The court pointed out that "[a]ny
appreciable evidence of sudden heat justifies an instruction on voluntary
manslaughter," Roark v. State, 573 N.E.2d 881, 882 (Ind. 1991), and that
sudden heat is defined as provocation arising from a variety of emotions.
In the defendant's admissions of guilt to his brother, the defendant said
that he "clicked" or "went off" when Zachary threatened to tell his parents
about the defendant's sexual conduct. In the defendant's confession to
police, he stated that he killed Zachary because he was afraid that Zachary
would report him. Concluding that the defendant received effective
assistance of counsel as to their strategy to pursue voluntary manslaughter
instructions, the post-conviction court found that the defendant's trial
attorneys "pursued the most viable defense available to them." Record at
664.
As to the failure to present a mental illness defense during the guilt
phase, the post-conviction court noted that, had defense counsel done so,
they would have opened the door to the admission of substantial
incriminating evidence not otherwise presented during the guilt phase. Cf.
Miller v. Anderson, 255 F.3d 455 (7th Cir. 2001). As we noted above, this
included testimony that, upon the defendant's prior release from jail to
probation for a previous conviction of child molesting, the defendant had
declared his intent to kill his next child molesting victim to avoid
returning to jail.
We conclude that the evidence as a whole does not lead unerringly and
unmistakably to a decision opposite that reached by the post-conviction
court, and we find that defense counsel's choice of defense theory did not
constitute ineffective assistance of counsel.
7. Defense guilt phase closing argument
The defendant contends that defense counsel were deficient in failing
to present argument or tender an instruction regarding jury's authority
under Art. 1, Sec. 19 of the Indiana Constitution to determine both the law
and the facts. Stevens did not raise this issue in his petition for post-
conviction relief. Issues not raised in the petition for post-conviction
relief may not be raised for the first time on post-conviction appeal. See
P-C.R. 1(8); Allen, 749 N.E.2d at 1171.
(8) Mitigation Evidence
The defendant contends that his trial counsel were deficient during
the penalty phase and sentencing hearing by failing to present sufficient
evidence of mitigating circumstances. The defense presented various
witnesses and evidence showing various mitigating circumstances including
his parents' divorce and his living in the homes of different people while
growing up, the defendant's troubled childhood including suffering
childhood sexual abuse, his adolescent alcohol and drug use and diagnoses
of passive personality, his depression and suicide attempts, and his poor
academic performance. The defendant's post-conviction counsel, however,
assembled several witnesses to testify regarding information and theories
that were not employed by defense trial counsel.
The defendant first argues that his trial lawyers unreasonably
limited their penalty phase and sentencing presentations to events of his
life that occurred before age 18 and that his counsel unreasonably relied
upon Dr. Lennon, rather than presenting other psychological experts
regarding the defendant's mental or emotional distress at the time of the
killing. He argues that Dr. Lennon "was a fatal witness for the defense,"
noting that on cross-examination by the State, Dr. Lennon agreed with the
State's theory that Zachary's murder appeared directly related to the
defendant's fear of having to return to prison, and the defendant was not
susceptible to traditional psychotherapy and was a serious danger to
society. Br. of Petitioner-Appellant at 45. The defendant further urges
that his trial counsel failed to present a reason for the defendant's
crime. He argues that counsel should have presented expert evidence that,
at the time of the killing, the defendant was under a mental disease or
defect, with an impaired ability to appreciate the wrongfulness of his
conduct and conform it to the law; that he was very likely influenced by
the interactive use of drugs; that his disorders were treatable with
medication and intensive, individual psychotherapy; and that he would not
constitute a pedophilia threat in prison.
The post-conviction court rejected these claims. The court observed
that expert witness opinions suggesting that the defendant had an impaired
ability to appreciate the wrongfulness of his conduct would have been
strongly contradicted by the extensive evidence of the defendant's multiple
attempts to kill Zachary and then carefully to take steps to cover-up the
crime. The court noted that even one of the defendant's own experts at post-
conviction acknowledged that the defendant could appreciate the
wrongfulness of his conduct when he took steps to hide Zachary's body. The
post-conviction court later concluded:
Defense counsel were not ineffective for failing to investigate and
prepare evidence of organic and mental impairments, including
dissociative disorders, borderline personality disorders, and the
effects of long-term drug use. Defense counsel's investigation of
Petitioner's mental health and prior use of drugs was reasonable, . .
. . Both of [defendant's trial counsel] testified that they were aware
of Petitioner's prior drug abuse. Dr. Lennon was also aware of
Petitioner's prior drug abuse. However, Petitioner denied having
recently used drugs: he "used to do drugs, used to drink," but that he
stopped drinking when he got arrested for child molesting, and "had
stopped smoking marijuana awhile before that, long before that, pretty
much cause my sister got killed by a guy that was high and ever since
that I had, I had gone from doing it heavy to real light and then
stopped." Moreover addiction counselor Needham evaluated Petitioner
in January 1993 and found that Petitioner did not have a drug or
alcohol problem. Thus, defense counsel's investigation was
reasonable.
Moreover, had defense counsel adopted the strategy of
emphasizing Petitioner's prior drug use, this would have been
inconsistent with their mitigation strategy of portraying Petitioner
as the passive victim of abuse. As Dr. Lennon testified, "so much of
[Petitioner's] behavior could be explained by the abuse, the neglect
that he's had on top of his genetic predisposition, and then you look
at all the drugs that he's been surrounded with his birth mother, and
then the fact that she probably—even though she denies it, the
evidence will suggest that she probably did do drugs or alcohol during
pregnancy." Had defense counsel elicited evidence of Petitioner's
prior use of illicit drugs, he would no longer appear to be a passive
victim molded by outside forces, but would appear as someone who had
actively decided to break the law. As the Seventh Circuit explained
in Stewart v. Gramley, 74 F.3d 132, 136 (7th Cir. 1996), "What is
brought out [during the penalty phase] that will help [a defendant] is
what goes to show that he is not as "bad" a person as one might have
thought from the evidence in the guilt phase of the proceeding. What
is brought out that will hurt him is what goes to show that he is,
indeed, as bad a person, or worse, than one might have thought from
just the evidence concerning the crime." Defense counsel was not
ineffective for failing to pursue a mitigation strategy that could
have caused the jury to think that Petitioner had a more extensive
history of lawbreaking than was otherwise apparent.
Record at 675-76 (included citations to record omitted).
The post-conviction court thus found that defense counsel were aware
of petitioner's past drug abuse and investigated the mental health issues
through the use of Dr. Lennon. Further, the court found that presenting
the petitioner's chronic drug abuse would cut against the defense strategy
of portraying the petitioner as a passive victim of abuse rather than
someone with an extensive history of lawbreaking. The court determined
that the strategic decision to pursue this mitigation strategy over another
was not ineffective assistance of counsel. We are not persuaded that the
evidence in the record unavoidably points towards an opposite result.
The defendant also contends that defense counsel was constitutionally
ineffective because of a statement made by counsel during the penalty phase
closing argument: "I am not going to tell you that anything that happened
in Chris Stevens's life explains or excuses the events of July 15th, 1993.
It doesn't, and he will have to suffer the punishment for that." Trial
Record at 5440. The State responds that this statement was reasonable
because it reminded the jury that "recommending a sentence other than death
would not mean that they were excusing [the defendant] for his actions, and
would not mean that [the defendant] would escape with no punishment. Br.
of Appellee at 37.
The challenged statement was in the context of surrounding argument
urging that the important part of the case before the jury was not whether
the defendant committed the crime, but rather what penalty to recommend: a
term of years, life imprisonment without parole, or death—any of which
constitute severe punishment. Counsel's argument clearly emphasized the
importance of mitigating circumstances. The challenged statement taken in
context cannot reasonably be understood to have invited the jury to
disregard mitigating circumstances. We decline to find deficient
performance based on his claims of failure to present sufficient mitigating
evidence during the penalty phase and sentencing.
(9) Life without Parole Instruction
The defendant contends that his trial counsel were deficient for
failing to tender a penalty phase instruction that would have informed the
jury of the "true effect" of life without parole. Br. of Petitioner-
Appellant at 50. He argues that such an instruction was needed to offset
the possibility that a juror might believe that if sentenced to life
without parole, the defendant could be released early. The defendant
argues that such an explanation should have been provided because there had
been evidence on the issue of future dangerousness and because his trial
counsel allegedly provided misguided speculation during jury selection when
responding to a potential juror's question concerning the meaning of life
without parole.[7]
The post-conviction court's decision noted that it is unnecessary to
instruct juries on words that are commonly understood. The court found
that "'life without the possibility of parole' consists of common words
that may be easily understood by persons of average understanding." Record
at 733. It also found that had any such instruction been tendered it would
have been refused. The post-conviction court concluded that the defendant
had received effective assistance of counsel as to this claim. We agree
and decline to find ineffective assistance of trial counsel on this issue.
(10) Conflict of Interest
The defendant contends that his two trial counsel disliked him and
that their personal animosity toward him interfered with their duty of
loyalty to their client, adversely affecting their representation of him,
to his prejudice. This issue was not designated in the petition for post-
conviction relief and thus may not be raised on appeal. See P-C.R. 1(8);
Allen, 749 N.E.2d at 1171.
(11) Use of Stun Belt
The defendant devotes a substantial section of his brief to his claim
that the sheriff's decision to place a stun belt[8] on the defendant during
trial is reversible error. This Court has recently declared that stun
belts may not be used on defendants in Indiana courtrooms. Wrinkles v.
State, 749 N.E.2d 1179, 1194 (Ind. 2001). To the extent that the defendant
asserts this issue as an independent claim, however, this issue is
procedurally defaulted because it was not raised at trial, Williams v.
State, 690 N.E.2d 162, 166 (Ind. 1997), or on direct appeal, Rouster v.
State, 705 N.E.2d 999, 1003 (Ind. 1999). But because the defendant's
argument also claims that his trial counsel's failure to object to the stun
belt at trial constitutes prejudicial deficient performance, we will
address the issue in the context of ineffective assistance of trial
counsel.
The post-conviction court concluded that defense counsel were not
ineffective for failing to raise this claim, noting that no evidence was
presented that the defendant was impeded in his ability to assist his
counsel, that no jurors were aware that Stevens was wearing a stun belt,
and that the belt did not affect Stevens's appearance before the jury.
The defendant asserts that while none of the jurors were aware that
he was wearing a stun belt, their perception of him was still affected by
the fact that he was under restraint. The defendant argues that he was
harmed because wearing the belt made him appear to the jurors as
emotionally withdrawn, subdued, and unusually silent, which may have
influenced them to recommend the death penalty. In the post-conviction
proceedings, the defendant presented the testimony of Dr. Robert Kaplan who
testified that the wearing of the stun belt at trial would have inhibited
the defendant's expression of emotion.
The testimony of five of his capital trial jurors and the affidavit of
a sixth juror were also presented. The jurors described the defendant as
emotionally withdrawn, silent, and subdued. One juror stated that he did
not appear remorseful. Three jurors stated that they observed the
defendant interacting with his attorneys by passing notes and whispering.
The defendant recognizes that his demeanor and affect as seen by the jurors
during trial was essentially the same demeanor and affect they had seen
during his videotaped confession. Br. of Petitioner-Appellant at 58.
We conclude that the evidence does not unmistakably lead to a result
contrary to the post-conviction court's factual findings. From the
circumstances presented in this case, we find no reasonable possibility
that but for the failure of trial counsel to object to the stun belt, the
results of the guilt phase, penalty phase, or sentencing would have been
different.
2. Government Interference with Right to Counsel
The defendant contends that his trial counsel's preparation for and
defense at trial was frustrated by various acts of governmental
interference under circumstances that constructively denied him his right
to counsel, to present a defense, and to a fair and reliable trial. His
claim focuses upon trial counsel's difficulties in obtaining unquestioned
attorney fee payments, the denial of ex parte access by defense counsel to
the court regarding funds for investigative assistance, and counsel's
inability to obtain further mental health evaluations. While these claims
were known and not raised in direct appeal, to the extent that they are in
the nature of claims of ineffective assistance of counsel under the Sixth
Amendment and require consideration of evidence outside the trial record,
we will address them. The gravamen of his claim is that the court
prevented his attorneys from adequately preparing for trial and securing
expert assistance. In United States v. Cronic, 466 U.S. 648, 104 S.Ct.
2039, 80 L.Ed.2d 657 (1984), the Supreme Court recognized that when
surrounding circumstances define a very small likelihood that any lawyer,
even a fully competent one, could provide effective assistance, prejudice
will be presumed without inquiry into the actual conduct of the trial. Id.
at 659-60, 104 S.Ct. at 2047, 80 L.Ed.2d at 668. Only where there has been
an actual breakdown of the adversarial process will a Sixth Amendment
violation be found without inquiry into counsel performance. Id. at 657-
58, 104 S.Ct. at 2046, 80 L.Ed.2d at 667.
(a) Fee Disputes
The defendant first alleges that Putnam County Circuit Judge
LaViolette, who presided over the case until its venue was changed to
Tippecanoe County, caused his attorneys "numerous difficulties in obtaining
compensation" such that they "had to expend more time on collateral issues
and attempting to have the assets or the resources to prepare for trial
than [they had] in preparing for trial." Br. of Petitioner-Appellant at
61(citing Trial Record 733, 1413). The post-conviction court found that
the billing procedures did not result in prejudice as neither counsel
indicated at the post-conviction hearing that the disputes "prevent[ed]
them from taking any particular step or cause[d] them to forgo any
particular part of their defense." Record at 730.
The post-conviction court concluded that the fee disputes did not
materially affect counsel's performance. At the post-conviction hearing
one defense counsel stated that he believed that at the initial stages of
the case the dispute "impaired our ability to research and investigate the
case," but he could not recall any particular thing he did not do because
of the disputes. Record at 2067, 2088. The other attorney stated that the
disputes took up time, but he could not specify any particular step he did
not take because of the disputes. Record at 2556. The evidence as a whole
does not lead us unerringly to a decision opposite that of the post-
conviction court.
(b) Ex Parte Hearings for Funds
The defendant next alleges that judicial denial of his counsel's
request for an ex parte hearing to determine funds for experts and
investigation denied him a fundamental requirement to prepare and present a
defense. He argues that the inability to obtain an ex parte hearing
resulted in his attorneys (1) prematurely disclosing the identity of its
consulting expert, (2) being unwilling to seek additional mental health
experts or secure other evaluations, and (3) being hampered in their
preparation for trial and choice of trial strategies.
The post-conviction court found that the "trial court did not deny
defense counsel's requests for ex parte hearings, but merely informed
counsel that they must show good cause before an ex parte hearing would be
granted." Record at 745. The post-conviction court also determined that
the order granting funds did not restrict counsel to any particular expert.
Id. at 746. In addition, the court found that the defendant did not
identify any part of the trial record where funds were denied after the
case was venued nor where defense counsel's "thought process and strategies
were required to be disclosed prior to the approval of funds for expert
witnesses." Record at 746.
The defendant urges that appointed capital case counsel should be
entitled to an ex parte determination of all motions for funds for
assistance. We decline this broad request. Communication between one
litigant and the court, in the absence of the other parties, is strongly
discouraged. See Ind.Professional Conduct Rule 3.5; Ind.Judicial Conduct
Canon 3(B)(8). In Newhart v. State, 669 N.E.2d 953 (Ind. 1996), the
defendant claimed that the trial court erred when it refused to grant him
an ex parte hearing on his request for funds. We stated that "[o]ur
ethical rules counsel against such ex parte communications," and concluded
that the defendant had not persuaded us that the trial court erred in this
regard. Id. at 955.
Courts in sister states have reached varying decisions on the right
to an ex parte hearing. The Arizona Supreme Court in State v. Apelt, 861
P.2d 634, 649-50 (Ariz. 1993), determined that neither the Fourteenth
Amendment's guarantee of due process nor that of equal protection entitles
defendants to an ex parte hearing. Citing a similar judicial conduct
canon as we did in Newhart, the Arizona court determined that ex parte
communications are forbidden except where authorized by law, and as there
were neither statutory nor organic law authorizing such a procedure the
trial court did not err in refusing to conduct the hearing ex parte. See
also State v. Floody, 481 N.W.2d 242, 256 (S.D. 1992)(no constitutional
grounds for ex parte hearing); Ramdass v. Commonwealth, 437 S.E.2d 566,
570 (Va. 1993)(rejecting both federal and state constitutional arguments
for an ex parte hearing), rev'd on other grounds sub nom., 512 U.S. 1217,
114 S.Ct. 2701, 129 L.Ed.2d 830 (1994). In contrast, Louisiana has
recognized a constitutional basis for allowing an ex parte proceeding, but
requires a defendant to first demonstrate a particularized prejudice to
the defendant from holding an adversarial hearing. See State v. Touchet,
642 So.2d 1213 (La. 1994). In State v. Phipps, 418 S.E.2d 178, 191 (N.C.
1992), North Carolina acknowledged that there are strong reasons to allow
such proceedings to be held ex parte, but refused to find them to be
constitutionally required and rather left the decision to trial court's
discretion. Other states have decided that defendants are entitled to an
unqualified ex parte hearing concluding that indigent defendants should
not be required to reveal a defense theory or the identity of experts who
are consulted but who may not testify at trial. See Ex Parte Moody, 684
So.2d 114, 120 (Ala. 1996)(holding criminal defendant entitled to ex parte
hearing on whether expert assistance is necessary based on Fifth, Sixth,
Fourteenth Amendments to Constitution); Brooks v. State, 385 S.E.2d 81, 84
(Ga. 1989) (deciding indigent defendant entitled to ex parte hearing to
determine entitlement to public funds); Arnold v. Higa, 600 P.2d 1383,
1385 (Haw. 1979)(determining indigent defendant entitled to ex parte
hearing so that he can demonstrate indigency or particularize reasons for
request for litigation expenses without disclosing defensive theories to
State); McGregor v. State, 733 P.2d 416 (Okla. Crim. App. 1987)(holding
hearing to determine if defendant was entitled to court-appointed
psychiatrist on motion must be ex parte); State v. Barnett, 909 S.W.2d
423, 429 (Tenn. 1995)(holding that when indigent defendant seeks
psychiatric assistance, the hearing should be ex parte); Williams v.
State, 958 S.W.2d 186, 193-94 (Tex. Crim. App. 1997)(deciding that an
indigent defendant is allowed an ex parte proceeding because the defendant
should not have to disclose defensive theories to prosecution in order to
obtain "basic tools of an adequate defense").
While we recognize that strategic considerations will often lead
defense counsel to prefer secrecy as to their funding requests, we find no
automatic constitutional entitlement to such ex parte proceedings. A trial
court may, however, upon a showing of good cause, permit an ex parte
request for funds for assistance. The denial of such a request is
reviewable for abuse of discretion.
In the present case the defendant has not demonstrated that the
actions of the trial court in requiring good cause before permitting an ex
parte request resulted in an actual breakdown of the adversarial process.
There is no Cronic violation here.
3. Ineffective Assistance of Appellate Counsel
The defendant also contends that he did not receive effective
assistance of his appellate counsel. His brief focuses upon the claim that
his appellate counsel inadequately presented the issue that Zachary's age
was "double counted" as an aggravating circumstance because age was a
factor in more than one of the aggravators. The defendant also mentions in
cursory fashion three additional allegations of deficient appellate
representation: (a) failing to argue that his sentence was unreliable due
to a reduction in the jury's sense of personal responsibility; (b) failing
to adequately argue that the State improperly injected victim impact
evidence through its use of a photograph of Zachary holding a fish; and (c)
failing to raise the issue of governmental interference.
A defendant is entitled to the effective assistance of appellate
counsel. Evitts v. Lucy, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 825
(1985); Johnson v. State, 693 N.E.2d 941, 950 (Ind. 1998). Appellate
ineffectiveness claims are evaluated under the Strickland standard of
conduct falling below professional norms and resulting in prejudice such
that our confidence in the outcome is undermined. Bieghler v. State, 690
N.E.2d 188, 192-93. (Ind. 1997). As for challenges to an appellate
counsel's strategic decision to include or exclude issues, courts should be
particularly deferential "unless such a decision was unquestionably
unreasonable." Id. at 194. To prevail on a claim of ineffective
assistance of appellate counsel, a defendant must "show from the
information available in the trial record or otherwise known to appellate
counsel that appellate counsel failed to present a significant and obvious
issue and that this failure cannot be explained by any reasonable
strategy." Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind. 2000).
Deciding which issues to raise on appeal is one of the most important
strategic decisions of appellate counsel. Bieghler, 690 N.E.2d at 193.
Appellate counsel is not deficient if the decision to present "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." Id. at 194.
Even if counsel's choice is not reasonable, to prevail, petitioner must
demonstrate a reasonable probability that the outcome of the direct appeal
would have been different. Id. An appellate ineffectiveness claim
challenging the quality of counsel's actual presentation of a claim must
"overcome the strongest presumption of adequate assistance." Id. at 196.
If the claimed issues were presented by appellate counsel and analyzed by
an appellate court, relief will only be afforded when the "appellate court
is confident it would have ruled differently." Id.
The defendant contends that if his appellate counsel would have
better presented the issue of overlapping aggravators, there is a
reasonable probability that he would have prevailed on appeal. The issue
was presented and extensively addressed on direct appeal. Stevens, 691
N.E.2d at 433-34. The defendant does not persuade us that this issue
presented or argued differently would have produced a different result.
The defendant also claims ineffective assistance of appellate counsel
alleging that his appellate counsel failed to argue that his sentence was
unreliable due to a reduction in the jury's sense of personal
responsibility because prospective jurors were "repeatedly reminded that
they were only recommending a sentence [and two jurors] were exposed to a
prospective juror's comments that she could rationalize rendering a verdict
on the ground that the judge would be making the final decision." Br. of
Petitioner-Appellant at 66. The post-conviction court found that no
evidence was produced at trial or on post-conviction that the jury's sense
of personal responsibility was reduced, and that petitioner did not
demonstrate that this issue was of greater merit than the issues actually
raised on appeal. Record at 740.
The jury selection process lasted five days. The defendant does not
cite the record or otherwise direct our attention to the instances in which
he claims that prospective jurors were "repeatedly reminded that they were
only recommending a sentence." As to his allegation that two jurors
overheard another prospective juror's comment, there was no objection by
trial counsel, nor did trial counsel challenge to remove the two jurors who
overheard the comment.
As noted above, with respect to the defendant's challenge to his
appellate counsel's strategic decision to include or exclude this issue, we
should be particularly deferential "unless such a decision was
unquestionably unreasonable." Bieghler, 690 N.E.2d at 193-94. The
defendant has failed to demonstrate that his appellate counsel's decision
to omit this issue was unreasonable. The defendant has likewise not shown
a reasonable probability that the outcome of the direct appeal would have
been different if the issue had been presented. We agree with the decision
of the post-conviction court to deny relief as to the defendant's claim of
ineffective assistance of appellate counsel.
As to the defendant's assertion that his appellate counsel failed to
adequately argue that the State improperly injected victim impact evidence
by its use of a photograph of Zachary holding a fish, the designation of
alleged ineffective appellate counsel in his petition for post-conviction
relief does not identify any claim regarding victim impact evidence or
mention the State's use of the photograph. The defendant's petition for
post-conviction relief does claim that his appellate counsel was deficient
in failing to adequately present a claim that the trial outcome "was unfair
and unreliable due to the injection of irrelevant and prejudicial evidence
proscribed by Ind. Evidence Rule 404(b),"[9] Record at 70, but the argument
in his appellate brief does not refer to any claimed violation of Rule
404(b). We deem this claim to be procedurally defaulted. See P-C.R. 1(8);
Allen, 749 N.E.2d at 1171. Similarly, the defendant's claim that his
appellate counsel failed to raise issues of governmental interference was
not designated in his petition for post-conviction relief and is thus
likewise not available. Furthermore, we have already discussed both of
these claims in the context of the defendant's allegations of ineffective
assistance of counsel at trial.
4. Lethal Injection, Sentence Reliability
The defendant challenges the denial of his post-conviction claims
that Indiana's lethal injection execution scheme violates international
law, and that it contravenes evolving standards of decency, that it
constitutes cruel and unusual punishment, and that his death sentence is
unreliable.
The first three of these claims were available but not presented on
direct appeal and may not be asserted as post-conviction claims. See
Timberlake, 753 N.E.2d at 597. As to the defendant’s claim that his death
sentence is unreliable, he asserts that the "jury and the judge were never
provided information necessary to make an informed judgment as to the
appropriate sentence." Br. of Petitioner-Appellant at 68. He argues that
the jury was not informed about his mental disabilities and their
interaction with his drug abuse and that the jury was not given a proper
understanding of the sentence life without parole. We have considered
these claims in the context of his assertions of ineffective assistance of
counsel. We decline to consider sentence reliability as an independent
freestanding post-conviction claim. See Saylor v. State, 765 N.E.2d 535,
544 n.1 (Ind. 2002); Wrinkles, 749 N.E.2d at 1187 n.3; Allen v. State, 749
N.E.2d 1158, 1176 n.28 (Ind. 2001).
5. Incomplete, Unfair, and Biased Post-Conviction Relief Adjudication
(a) Use of State's Proposed Findings of Fact and Conclusions of Law
The defendant claims that he was denied a full, fair and unbiased
adjudication of his post-conviction claims when the post-conviction court
essentially adopted verbatim the proposed findings of fact and conclusions
of law submitted by the State. In Prowell v. State, 741 N.E.2d 704 (Ind.
2000), we acknowledged that a trial court’s verbatim adoption of a party’s
proposed findings may have important practical advantages and we expressly
declined to prohibit the practice. Id. at 708-09. We noted, however, that
the wholesale adoption of one party's findings results in an "inevitable
erosion of the confidence of an appellate court that the findings reflect
the considered judgment of the trial court." Id. at 709; see also
Wrinkles, 749 N.E.2d at 1188.
The sixty-five pages of findings and conclusions entered by the post-
conviction court are for the most part identical to the proposed findings
submitted by the State, but we note several differences. For example, the
post-conviction court added two sentences to one issue, a couple of
paragraphs to another, and corrected some of the misspellings. It is thus
evident that the court carefully considered and purposefully used of the
individual findings proposed by the State. The extensive findings of fact
and conclusions of law addressed all the claims delineated in his petition.
While near verbatim reproductions may appropriately justify cautious
appellate scrutiny, we decline to hold that the post-conviction court’s
utilization of the State’s proposed findings in the present case
constituted a failure to provide the defendant with a full, fair and
unbiased adjudication of his post-conviction claims.
(b) Failure to Recuse
Stevens claims his right to a full, fair and unbiased hearing was
also violated by the post-conviction judge refusing to recuse himself.
Judge Heid[10] presided over the post-conviction trial and also over the
original trial. The defendant sought the judge's recusal on grounds that
he intended to interview Judge Heid as a potential witness on the stun belt
issue. See Ind.Judicial Conduct Canon 3(E)(1).[11] Judge Heid denied the
motion, ruling that his testimony would be cumulative to the testimony of
counsel.
The defendant does not challenge Judge Heid's impartiality, but rather
he asserts that he was denied the opportunity to interview Judge Heid as a
potential witness, which hobbled his case. In denying the motion to
recuse, the trial court stated:
Well throughout the proceedings that were conducted here, the State
was represented by three attorneys and the defense was represented by
two attorneys and to the extent there were any conversations about
procedural issues or housekeeping matters that for some reason may not
have been recorded, I think all or almost all of those people were in
attendance. I know if there were discussions about security issues
the sheriff was in attendance with perhaps another deputy, and so I
think there's ample witnesses who can testify about those
conversations to the extent they took place without the requirement of
calling the trial judge as a witness to add cumulative, perhaps
cumulative testimony, and it seems however that the crux of this issue
comes down to why was the decision made not to object and whether it
was favorable or unfavorable to Mr. Stevens to have a stun belt rather
than some other kind of restraint and the thought process, those
decision making is – it's an internal process of the defense of which
the court had no knowledge or certainty wasn't privy to the defense
strategy in this matter and I would not be able to provide any helpful
information about how that decision came about or whether it was
favorable or unfavorable to the defendant. And also given the amount
of work that's been done in this case in preparing it to this point,
it's been pending since May of last year, and here we are ten days
from a week long trial, it just seems to me that this really isn't an
appropriate situation for me to recuse myself and have you start all
over with someone else in this case. So with due respect to your
motion here, I think it should be and it is denied. We'll go ahead
and I'll stay on the case.
Record at 952. We discern no error in the trial court's denial of the
defendant's motion to recuse.
Conclusion
We affirm the judgment denying the defendant's petition for post-
conviction relief.
SHEPARD, C.J., and SULLIVAN, BOEHM and RUCKER, JJ., concur.
-----------------------
[1] This opinion uses the designation "Record" to apply to the record
of the post-conviction proceedings. The original trial record is
designated as "Trial Record." "Supp. Record" refers to the supplemental
record of the post-conviction proceedings.
[2] Ind.Crim. Rule 24(B).
[3] Part of the reason for the delay was the determination of the
defendant's request that the hearing be ex parte. See infra Part 2(b).
[4] The defendant also faults his trial counsel for providing a copy
of Dr. Lennon’s report to the State prior to trial. We note, however, that
the report was provided in compliance with the trial court’s order that
“any reports from experts are to be submitted to the State sixty (60) days
in advance of trial.” Record at 299. On motion of the defense, the trial
court extended the deadline for the exchange of reports from experts to
July 19, 1994. Record at 343. The defense thereafter supplied the report.
[5] The post-conviction court concluded, in part:
With the benefit of hindsight, Petitioner's present counsel suggest
that trial counsel should have adopted the defense of mental disease
or defect (Ind.Code § 35-41-3-6) and should have presented psychiatric
evidence that Petitioner was unable to form the mens rea necessary to
commit intentional murder. However, if Petitioner had raised the
insanity defense, he would have opened the door to the admission of
incriminating evidence that was not presented during the guilty [sic]
phase of his trial. . . . Moreover, the facts of the crime itself
militate against insanity. . . . Against this backdrop, Dr. Coons's
testimony that, in his opinion, Petitioner's ability to appreciate the
wrongfulness of his conduct was "impaired" would have had little or no
effect on the jury's verdict, particularly in light of Dr. Coons's
acknowledgement that Petitioner could appreciate the wrongfulness of
his conduct when he took steps to hide Zachary's body.
Record at 713-718.
[6] Although Tippecanoe and Putnam County residents may receive some
overlapping Indianapolis media, the court found that Tippecanoe County has
its own daily newspaper and television station.
[7] During voir dire, defense counsel asked, "Mr. [Juror], anything
about life without parole that you either think is a good idea or a bad
idea in general?" Juror: "As an alternative to the death sentence you
mean?" Defense counsel: "Yes." Juror: "Well, I'd have to get an idea of
what you meant by life without parole. Is that truly life without …"
Defense counsel: "It means locked up. Yeah, that's what it means."
Juror: "Even 20 years from now, the rules aren't going to change?"
Defense counsel: "No. Well . . . [y]ou're the one that said you can't
predict the future as to whether you change your views on the death
penalty. I can't predict the future as to what the law is. Right now, the
law is life without parole is life without parole. . . . It means if a
person is sentenced to life without parole, they don't walk out ever
again." Record at 1825-27. Two jurors were seated from the panel who
witnessed this interchange, though the juror directly involved in the
discussion was excused.
[8] We recently described the nature and operation of the stun belt in
Wrinkles v. State:
The stun belt . . . is an electronic shocking device that is secured
around the wearer's waist. Two nine-volt batteries connected to
prongs that are attached to the wearer over the left kidney region
power the belt. The belt may be activated from as far away as 300
feet, and once activated it delivers an eight-second, 50,000-volt
shock that cannot be stopped. This high-pulsed electrical current
travels through the body along blood channels and nerve pathways. The
belt's electrical emission knocks down most of its victims, causing
them to shake uncontrollably and remain incapacitated for up to forty-
five minutes. Activation may also cause immediate and uncontrolled
defecation and urination, and the belt's metal prongs may leave welts
on the wearer's skin requiring as long as six months to heal.
Activation may cause some wearers to suffer heartbeat irregularities
or seizures. Manufacturers of the stun belt emphasize that the belt
relies on the continuous fear of what might happen if the belt is
activated for its effectiveness.
749 N.E.2d 1179, 1193-94 (Ind. 2001)(internal citations omitted).
[9] Ind.Evidence Rule 404(b) prevents the admission of evidence
regarding "uncharged misconduct" or "prior bad acts" to prove a person's
character.
[10] Judge George Heid died during the pending of this appeal.
[11] Indiana Judicial Conduct Canon 3(E)(1) provides:
(1) A judge shall disqualify himself or herself in a proceeding in
which the judge's impartiality might reasonably be questioned,
including but not limited to instances where:
. . . .
(b) . . . the judge has been a material witness concerning [the matter
in controversy].