Ritchie v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Joseph Cleary Steve Carter
Indianapolis, Indiana Attorney General of Indiana

Brent Westerfeld Stephen R. Creason
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana

______________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 49S00-0409-PD-420

BENJAMIN RITCHIE,
Appellant (Petitioner below),

v.

STATE OF INDIANA,
Appellee (Respondent below).
_________________________________

Direct Appeal from the Marion Superior Court, Criminal Division, Room 4
No. 49G04-0010-CF-172900
The Honorable Patricia Gifford, Judge

_________________________________

November 8, 2007

Rucker, Justice.
 Summary

Benjamin Ritchie was convicted of murder, possession of a handgun by a serious violent
felon, auto theft, and resisting law enforcement in connection with the 2000 shooting death of
Beech Grove police officer William Toney. The trial court accepted the jury’s recommendation
for a sentence of death for the murder conviction and sentenced Ritchie to a total executed term
of twenty years for the remaining convictions. On direct appeal, we affirmed Ritchie’s
conviction and sentence of death. Thereafter Ritchie filed a petition for post-conviction relief,
which the post-conviction court denied after a hearing. He now appeals that denial raising
several issues for our review, some of which are waived. 1 We address the remaining issues,
which we rephrase as follows: (1) whether Ritchie was denied the effective assistance of trial
counsel; (2) whether Ritchie was denied the effective assistance of appellate counsel; and (3)
whether he received a fair post-conviction hearing. We affirm the post-conviction court.

Facts 2

A recitation of the essential facts in this case was set forth in our opinion on direct appeal
as follows:

On September 29, 2000, around 7:00 p.m, Ritchie and two others
stole a white Chevrolet Astro van from a gas station in Beech
Grove. The theft was reported and police were dispatched to the
scene where Beech Grove police officer Matt Hickey filed a stolen

1
Ritchie complains the mandatory procedures for capital sentencing and independent appellate review
were violated. Br. of Appellant at 88. Under these general headings he alleges: (1) the trial court
improperly instructed the jury that he was eligible for a sentence ranging between forty-five and seventy-
five years, but the actual range was forty-five to ninety-four years; (2) the trial court erroneously gave the
jury a special verdict form on the weighing element; and (3) the trial court failed to issue a written
sentencing order. Id. at 88-92. The purpose of a petition for post-conviction relief is to raise issues
unknown or unavailable to a defendant at the time of the original trial or appeal. Reed v. State, 856
N.E.2d 1189, 1194 (Ind. 2006). These issues were known and available at the time of Ritchie’s direct
appeal. An issue known but not raised on direct appeal is waived. Williams v. State, 808 N.E.2d 652,
659 (Ind. 2004).
2
“Tr.” refers to trial transcript. “P-Cr.” refers to the transcript of the post-conviction proceedings.

2
 vehicle report. Approximately two hours later, Hickey was en
route to a traffic accident scene and recognized the stolen van as
Ritchie and one of his accomplices drove by. After confirming by
radio that the van bore the license plate of the stolen vehicle,
Hickey pursued, joined by officers Robert Mercuri and William
Toney. After a short chase, the van pulled into the yard of a
residence where Ritchie and his companion jumped out and ran in
opposite directions. Officer Toney pursued Ritchie on foot, and
ultimately Ritchie turned and fired four shots, one of which struck
Toney in the chest. Toney died at the scene.

Ritchie v. State, 809 N.E.2d 258, 261 (Ind. 2004), cert. denied, 546 U.S. 828 (2005).

Procedural History

The State charged Ritchie with murder, unlawful possession of a firearm by a serious
violent felon as a Class B felony, auto theft as a Class D felony, two counts of resisting law
enforcement as Class D felonies, and carrying a handgun without a license, a Class C felony. 3
Tr. at 7. The State sought the death penalty based on two aggravating circumstances: (1) the
victim of the murder was a law enforcement officer acting in the course of duty, Ind. Code § 35-
50-2-9(b)(6)(A), and (2) at the time the murder was committed Ritchie was on probation after
receiving a sentence for the commission of a felony. I.C. § 35-50-2-9(b)(9)(C).

Trial was held from July 31 through August 20, 2002. Prior to voir dire, Ritchie pleaded
guilty to the serious violent felon in possession of a handgun charge. The jury convicted him on
the remaining counts and recommended the death penalty for the murder conviction. The trial
court accepted the jury’s recommendation and sentenced Ritchie to death for the murder
conviction. Tr. at 2909. As for the remaining counts, the trial court sentenced Ritchie as
follows: (1) twenty years for the unlawful possession of a firearm as a serious violent felon, (2)
three years for auto theft, (3) three years for resisting law enforcement, as a Class D felony, and

3
On motion by the State the trial court dismissed the carrying a handgun without a license charge. App.
at 52.

3
(4) one year for resisting law enforcement, as a Class A misdemeanor, 4 to be served
concurrently. Id. at 2908-09.
On direct appeal, we affirmed Ritchie’s convictions and death sentence. Thereafter,
Ritchie filed a Petition for Post-Conviction Relief, which the post-conviction court granted in
part 5 and denied in part after a hearing. This appeal followed. Additional facts are discussed
below as necessary.

Standard of Review for Post-Conviction Proceedings

The petitioner in a post-conviction proceeding bears the burden of establishing grounds
for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Fisher v. State,
810 N.E.2d 674, 679 (Ind. 2004). When appealing the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d
at 679. To prevail from the denial of post-conviction relief, a petitioner must show that the
evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by
the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the
post-conviction court in this case made findings of fact and conclusions of law in accordance
with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court’s
legal conclusions, “[a] post-conviction court’s findings and judgment will be reversed only upon
a showing of clear error – that which leaves us with a definite and firm conviction that a mistake
has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citation omitted).

Standard of Review for Ineffective Assistance of Counsel

Most of Ritchie’s claims fall under the general heading of the ineffective assistance of his
trial and appellate lawyers. To establish a post-conviction claim alleging violation of the Sixth
Amendment right to effective assistance of counsel, a defendant must establish the two

4
The record before us does not reveal at what point or how one of the resisting law enforcement
convictions was reduced from a Class D felony to a Class A misdemeanor.
5
On Indiana double jeopardy grounds the post-conviction court vacated Ritchie’s sentence for resisting
law enforcement as a Class A misdemeanor. App. at 493-94.

4
components set forth in Strickland v. Washington, 466 U.S. 668 (1984). Williams v. Taylor, 529
U.S. 362, 390 (2000). First, a defendant must show that counsel’s performance was deficient.
Strickland, 466 U.S. at 687. This requires a showing that counsel’s representation fell below an
objective standard of reasonableness and that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Id. Second,
a defendant must show that the deficient performance prejudiced the defense. Id. This requires a
showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, meaning
a trial whose result is reliable. Id. To establish prejudice, a defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Id. at 694. A reasonable probability is one that is sufficient to
undermine confidence in the outcome. Id. Further, counsel’s performance is presumed
effective, and a defendant must offer strong and convincing evidence to overcome this
presumption. Ben-Yisrayl, 729 N.E.2d at 106.

Discussion
I.
Ineffective Assistance of Counsel – Guilt Phase

Ritchie raises two allegations of ineffective assistance during the guilt phase of trial: (A)
“Failure to Retain Appropriate Expert Assistance” and (B) “Failure to Move for Suppression of
Ritchie’s Videotaped Statements.” Br. of Appellant at 66, 71.

A. Expert Assistance

The State’s expert conducted a “laser trajectory analysis” to support the State’s theory
that Ritchie killed Officer Toney while lying in wait. At trial, Ritchie’s defense team sought to
undermine the State’s “lying in wait” theory and advance the defense’s theory that Ritchie acted
recklessly in firing his handgun and did not knowingly or intentionally kill Officer Toney. 6 Br.
of Appellant at 67. Consequently, rebutting the State’s evidence on the operation of the handgun

6
The record reveals that at Ritchie’s request the trial court instructed the jury on reckless homicide and
voluntary manslaughter as lesser-included offenses of murder. Tr. at 2120-21.

5
Ritchie used in the shooting – a Glock Model 26 – and the trajectory of the bullets became an
important component of Ritchie’s defense. Tr. at 1637-43. To assist at trial, defense counsel
retained the services of Wayne Hill, who held himself out as a crime scene reconstructionist and
ballistics expert. 7 Problems arose during a pre-trial deposition concerning Hill’s asserted
professional qualifications and articles he allegedly published. Hill’s deposition testimony was
also inconsistent with the report he had previously given to the defense. According to one of
Ritchie’s trial counsel, the prosecutor “absolutely destroyed this man’s credibility as a witness
and I might add fairly under the rules.” P-Cr. at 170.

One of Ritchie’s lawyers, Kevin McShane, concluded that he could not rely on Hill as a
witness and that his testimony added no value to the defense. Id. at 171. Counsel did not consult
with or retain another ballistics or reconstruction expert. Instead, the defense team decided the
best strategy was to rely upon the testimony of the State’s crime scene investigator, Mickey
French. McShane knew French to be a “straight shooter” and a “real honest expert.” Id. at 173.
Counsel believed that favorable evidence to support their theory of the case could be elicited
from French on direct as well as during cross-examination. French’s testimony at trial did not
exclude the defense theory of events.

Ritchie argues the failure to obtain another expert amounted to ineffective assistance of
counsel. At the post-conviction hearing, Ritchie presented two experts: John Nixon and James
Sobek. The post-conviction court found Nixon’s and Sobek’s testimony differed from that of
French but not significantly so. App. at 454. For example, Nixon’s testimony differed from
French’s regarding the relative safety of the handgun and a person’s ability to accurately aim the
gun at night. Id. Nixon offered anecdotal evidence that some Glock handguns similar to
Ritchie’s have accidentally discharged but acknowledged there is no reason to believe the gun in
this case accidentally discharged four times. Because he had no personal knowledge, Nixon
could not say whether Ritchie could accurately aim the handgun. Id. Sobek could only testify
that the laser trajectory analysis conducted by the State’s witness could not pinpoint the precise

7
In his curriculum vitae Mr. Hill professed to be a expert in “homicide events reconstruction” with
expertise in a variety of fields including: evidence collection, firearms, internal/external ballistics,
forensic pathology, and the psychology of “high stress response.” Pet’r P-Cr. Ex. 19 at 25-39.

6
trajectory that each bullet took, but he could not come up with a more precise trajectory location
himself and acknowledged the analysis by the State’s witness was largely correct. Id.

We agree with the post-conviction court’s conclusion that the decision to rely upon
testimony from the State’s witness was reasonable under the prevailing professional norms.
Rondon v. State, 711 N.E.2d 506, 520 (Ind. 1999) (“Trial counsel’s strategy to put the State to its
burden and not present a defense, like other strategic decisions, is a legitimate trial strategy.”)
(citation omitted). Additionally, Ritchie’s experts do not challenge the accuracy of the State’s
expert testimony. It is at best wholly speculative that the expert testimony Ritchie provided at
post-conviction would have affected the outcome of the trial. We will not second-guess
counsel’s strategic decision to put the State to its burden, especially without a showing of
prejudice. Troutman v. State, 730 N.E.2d 149, 155 (Ind. 2000). In view of all these
considerations, counsel’s failure to procure another expert does not overcome the strong
presumption of counsel’s competence.

B. Suppression of Ritchie’s Videotaped Statements

Following his arrest, Ritchie was held in custody at the Marion County jail. After being
advised of his Miranda rights, the police began to interrogate Ritchie but stopped when Ritchie
told police he wanted a lawyer. P-Cr. at 639. Shortly thereafter, television station reporters
contacted Marion County correctional officers and asked to interview Ritchie. According to
several reporters, the officers advised them that Ritchie agreed to be interviewed. Before the
interviews began Ritchie signed a form captioned as an “Interview Release” that provided in
pertinent part:

I, Benjamin Ritchie, do hereby voluntarily consent to give an
interview to the news media. I understand that I have the right to
have counsel present during this interview. I further understand
that no threats, promises or agreements have been made by the
Marion County Sheriff’s Department for this interview and I
further understand that the Marion County Sheriff’s Department
has no vested interest in granting said interview.

7
Resp’t P-Cr. Ex. C, D, E & F. Ritchie did not request an attorney and none was provided. The
interviews proceeded, and Ritchie talked to the media while shackled at the wrist and ankles and
dressed in jail clothing. Marion County correctional officers were present throughout the
interview. At trial, the State introduced three videotaped statements made during these news
media interviews. Ritchie contends the videotapes were inadmissible due to a violation of his
Miranda rights and because they violated his Fourteenth Amendment right not to be forced to
appear in jail clothes or visibly shackled before the jury decided his fate. Ritchie complains
counsel rendered ineffective assistance for failing to object or move to suppress these videotapes.
Br. of Appellant at 76.

(1) Miranda Violation

Ritchie contends that the interviews were part of a custodial interrogation, and police
could not reinitiate questioning until counsel was provided. Id. at 73. Ritchie characterizes the
interviews as “actions on the part of the police” because officers asked if he was willing to be
interviewed, created the opportunity for the interviews to occur, and established the interview
conditions. Id. He contends the officers should have known the reporters’ questions were likely
to elicit incriminating responses and that these interviews enabled law enforcement to do
indirectly what Miranda prohibits, questioning him about the homicide without counsel. Id. at
73-74.

The Fifth Amendment privilege against self-incrimination prohibits admitting statements
given by a suspect during “custodial interrogation” without a prior warning. Illinois v. Perkins,
496 U.S. 292, 296 (1990). Police officers are not required to give Miranda warnings unless the
defendant is both in custody and subject to interrogation. See Loving v. State, 647 N.E.2d 1123,
1125-26 (Ind. 1995). There is no question that Ritchie was “in custody” when he gave his
statements.

The post-conviction court concluded that the videotapes did not run afoul of Miranda
because these statements were “not given to the police as part of a custodial interrogation,” rather
they were voluntary statements to the media. App. at 451. We agree. Under Miranda,

8
“‘interrogation’ includes express questioning and words or actions on the part of the police that
the police know are reasonably likely to elicit an incriminating response from the suspect.”
White v. State, 772 N.E.2d 408, 412 (Ind. 2002) (emphasis added) (citations omitted); see also
Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (citation omitted). Though the officers allowed
the opportunity for the interviews, the news reporters initiated and conducted the questioning,
not police. Miranda warnings are required in order to overcome the inherently coercive and
police-dominated atmosphere inherent to a custodial interrogation. Davies v. State, 730 N.E.2d
726, 733 (Ind. Ct. App. 2000). However, “[t]here is no empirical basis for the assumption that a
suspect speaking to those whom he assumes are not officers will feel compelled to speak by the
fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.”
Perkins, 496 U.S. at 296-97. Thus, the essential ingredients of a “police-dominated atmosphere”
and compulsion are not present when an incarcerated person speaks freely to someone whom he
believes is not an officer. Id. at 296.

Additionally, civilians conducting their own investigation need not give Miranda
warnings. Trinkle v. State, 259 Ind. 114, 284 N.E.2d 816, 818 (1972). In Luckett v. State, 158
Ind. App. 571, 303 N.E.2d 670, 671 (1973), civilians who were victims of a break-in conducting
their own investigation questioned Luckett, whom they suspected was the culprit. He confessed
to parts of the crime and later argued these statements were inadmissible because of a lack of a
Miranda warning. The Court held there was no Miranda violation when “the victims of the
break-in were acting on their own initiative as private citizens and were not under police control,
were not agents of the police, and were not acting at the direction of police officers.” Id.
Ritchie, like Luckett, was in custody and questioned by private citizens acting on their own
initiative. The reporters were not under police control, agents of the police, or acting at the
direction of police officers. Ritchie presents no evidence to the contrary. Therefore, a Miranda
warning was not constitutionally mandated in this situation.

Even if we were to assume the reporters’ actions could be construed as police action, the
evidence demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination. Ritchie was advised of his right to counsel in writing before the interviews.
App. at 451. Despite having not initiated the interviews, Ritchie voluntarily gave these

9
statements to the media. Ritchie does not contend he misunderstood the “Interview Release”
form. Nor does he contend that the police coerced him into signing the form. Any statement
given freely and voluntarily without any compelling influences is, of course, admissible in
evidence. Perkins, 496 U.S. at 297.
The post-conviction court correctly concluded the admission of the videotapes did not run
afoul of Miranda. In order to prevail on a claim of ineffective assistance due to the failure to
object, the defendant must show a reasonable probability that the objection would have been
sustained if made. Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001). Finding no Miranda
violation, we cannot say there is a reasonable probability that the objection would have been
sustained if made. Nor is there a reasonable probability that a motion to suppress would have
been granted on this ground. Accordingly, Ritchie has not met his burden of demonstrating that
counsel’s performance on this issue fell below an objective standard of reasonableness.

(2) Appearance in Shackles

Ritchie alleges the interview tapes were inadmissible because they depicted him dressed
in jail clothing and shackled and that counsel rendered ineffective assistance by not objecting or
moving to suppress these videotapes. Br. of Appellant at 75-76.

It is clearly established under both state and federal law that a criminal defendant cannot
be forced to appear in either jail clothing or shackles during the guilt or penalty phase of trial
without an individualized finding that the defendant presents a risk of escape, violence, or
disruption of the trial. Deck v. Missouri, 544 U.S. 622, 624 (2005); Estelle v. Williams, 425
U.S. 501, 512 (1976); Illinois v. Allen, 397 U.S. 337, 344 (1970); Stephenson v. State, 864
N.E.2d 1022, 1032 (Ind. 2007). An accused should not be compelled to go before the jury
dressed in jail clothes or shackled because: (1) the risk of diluting the presumption of innocence,
(2) the risk that the jury might find guilt based on these extraneous influential factors rather than
probative evidence subject to the rigors of cross-examination, and (3) the shackles could hinder
the right to participate with counsel. See Deck, 544 U.S. at 630-31 (“Visible shackling
undermines the presumption of innocence and the related fairness of the factfinding process” and
“[s]hackles can interfere with the accused’s ability to communicate with his lawyer.”) (citation

10
omitted); Estelle, 425 U.S. at 504 (discussing the potential for jail clothing to dilute the
presumption of innocence and the principle that guilt is to be established by probative evidence
and beyond a reasonable doubt). Applying these rationales, Ritchie contends these videotapes
were constitutionally inadmissible and prejudicial. Br. of Appellant at 76.
However, Deck and its predecessors only discuss the use of jail clothing and visible
shackles during courtroom proceedings. Ritchie was not forced to appear before the jury in jail
clothing and shackles. Rather his claim is one step removed in that the jury viewed a videotape
of Ritchie appearing in jail clothing and shackles while in police custody. The concerns with
having a criminal defendant appear in jail clothing or shackles in a courtroom proceeding are not
directly applicable to Ritchie’s situation. Certainly, his right to participate with counsel is not
implicated. Additionally, it appears to this Court that the risk of diluting the presumption of
innocence or guilt being established by an extraneous influential factor is minuscule. Ritchie
presents no evidence of how viewing him in jail clothing and shackles on the videotape had a
bearing on his verdict. Any reasonable juror would have expected Ritchie to be dressed in jail
clothing and shackled when meeting with members of the public outside the security of a jail
cell. See generally Davis v. State, 770 N.E.2d 319, 326 (Ind. 2002) (stating potential jurors
would reasonably expect that anyone in police custody would be restrained).

We agree with the post-conviction court that this is not a case of the petitioner appearing
before the jury wearing jail garb and shackles. App. at 452. Thus, it is clear that an objection,
had one been made, would not have been sustained and counsel’s actions did not fall below the
objective reasonable standard of care. But even assuming for the sake of argument counsel’s
failure to object or move to suppress the videotapes fell below an objective standard of
reasonableness, Ritchie still has failed to show that, but for counsel’s error, the outcome of the
trial would have been different. That is to say, Ritchie has failed to show that, but for the
videotapes, the jury would have returned a verdict recommending a sentence of a term of years
rather than a death sentence. See Fountain v. United States, 211 F.3d 429, 436 (7th Cir. 2000)
(finding petitioner failed to establish prejudice because an objection to the shackling would not
have likely altered the result); see also Davis, 770 N.E.2d at 326 (finding, absent actual harm as a
result of the jury seeing him momentarily in handcuffs, the trial court would not have abused its

11
discretion in denying a motion for mistrial made by counsel at trial). We agree counsel was not
ineffective.

II.
Ineffective Assistance of Counsel – Penalty Phase

Ritchie next complains that counsel rendered ineffective assistance for failing to do a
better job in presenting evidence of mitigation. Br. of Appellant at 34. More specifically,
Ritchie alleges counsel failed to: (A) investigate and present educational evidence; (B)
investigate and prepare a social history report; and (C) obtain and present appropriate
psychological experts.

This Court acknowledges the importance of presenting mitigating evidence, particularly
in capital cases. Harrison v. State, 707 N.E.2d 767, 783 (Ind. 1999). We have previously held
that the failure to investigate and present mitigating evidence could constitute ineffective
assistance of counsel, warranting the vacation of a death sentence. Id. (citing Burris v. State, 558
N.E.2d 1067, 1076 (Ind. 1990); Smith v. State, 547 N.E.2d 817, 822 (Ind. 1989)); see also
Prowell v. State, 741 N.E.2d 704, 714 (Ind. 2001). That is not to say that counsel is required to
present all available mitigation evidence. Counsel may make strategic judgments not to present
certain types of mitigating evidence. Timberlake v. State, 690 N.E.2d 243, 261 (Ind. 1997) (“As
a matter of trial strategy, a defense counsel in a capital case may decide what is the best
argument to present during the penalty phase.”). However, the strategic choice not to present
mitigating evidence made after less than complete investigation may give rise to an ineffective
assistance of counsel claim for failure to investigate. We digress to elaborate upon this duty to
investigate mitigating evidence.

With the benefit of hindsight, a defendant can always point to some rock left unturned to
argue counsel should have investigated further. The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that it deprived the defendant of a fair trial. Strickland, 466 U.S. at 686.
Strickland does not require counsel to investigate every conceivable line of mitigating evidence

12
no matter how unlikely the effort would be to assist the defendant at sentencing. Wiggins v.
Smith, 539 U.S. 510, 533 (2003). This would interfere with the constitutionally protected
independence of counsel at the heart of Strickland. Id. Rather, we review a particular decision
not to investigate by looking at whether counsel’s action was reasonable in light of all the
circumstances. Id. at 521-22. In other words, counsel has a duty to make a reasonable
investigation or to make a reasonable decision that the particular investigation is unnecessary.
Id. at 521. A strategic choice not to present mitigating evidence made after thorough
investigation of law and relevant facts is virtually unchallengeable, but a strategic choice made
after less than complete investigation is challengeable to the extent that reasonable professional
judgment did not support the limitations on the investigation. Id. Thus, the Court’s principal
concern is not whether counsel should have presented more in mitigation but whether the
investigation supporting their decision not to introduce mitigating evidence was itself reasonable.
Id. at 523.

A. Educational Evidence

Counsel assembled a defense team that included Cheri Guevara, a mitigation specialist,
Larry Atwell, an investigator and former police officer, and Dr. Michael Gelbort, a
neuropsychologist. App. at 432. Counsel obtained school, adoption and hospital records and
interviewed several family members and persons familiar with Ritchie’s background and
upbringing. Id. Ritchie argues counsel focused only on his early childhood years, stating
“almost nothing [was] presented regarding [Ritchie’s] life after being adopted by the Ritchies.” 8
Br. of Appellant at 33. Ritchie contends teachers and school personnel should have been
contacted in an effort to discover all reasonably available mitigating evidence and counsel’s
failure to do so resulted in ineffective assistance. Id. at 34.

Although the focus of the defense was on Ritchie’s early childhood, counsel did in fact
present evidence of his later years. Both Verna and Oscar Ritchie testified about Ritchie’s

8
Ritchie’s mother, Marion Martin, divorced Donald Peoples while Ritchie was still an infant. Peoples
took custody of Ritchie’s two older half-brothers but left Ritchie with Martin upon learning he was not
Ritchie’s father. At the age of eight, Verna and Oscar Ritchie adopted Ritchie at which time his birth
name of Peoples was discontinued.

13
continuing troubles throughout school and their attempts at responding to those issues. They
recounted how they ensured Ritchie attended school, Tr. at 2721, 2751, attended numerous
parent-teacher conferences and counseling to address ongoing behavioral problems, id. at 2722-
23, 2752, placed him in special classes to address his needs, id. at 2723-24, sought counseling
from their minister around the third and fourth grade, id. at 2727, and took him for treatment at
Community North Hospital at age ten. Id. at 2732. They both discussed his experience as a
teenager going to live with his mom, who after only four weeks kicked him out because she
could not handle him. Id. at 2727, 2756. Dr. Gelbort corroborated their testimony by recounting
Ritchie’s difficulties in school documented in his school records, including repeating the first
grade and dropping out in the ninth grade. Id. at 2446, 2490-91. Dr. Gelbort testified to
Ritchie’s learning disability and diagnosis of Attention Deficit Disorder (ADD) at age eight and
the various treatments tried, including taking Ritalin in elementary school and his placement in
Community North at age ten. Id. at 2490-92. Dr. Gelbort explained the severely emotionally
handicapped classes Ritchie attended. Id. at 2447. Additionally, Dr. Gelbort recounted head
injuries Ritchie received from a motorcycle accident at age fourteen and being hit in the head
with a baseball bat at age sixteen. Id. at 2442.

The post-conviction court found that Ritchie’s counsel made a thorough, in-depth
presentation to the jury during the penalty phase of trial concerning the facts and circumstances
of Ritchie’s unfortunate childhood. App. at 433. Counsel tied Ritchie’s earlier childhood
experiences before the age of two to the behavioral problems he experienced throughout grade
school and into high school. We agree with the post-conviction court. The record clearly shows
that counsel’s investigation included Ritchie’s medical, educational, family, and social history.
“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 . . . .” State v.
McManus, 868 N.E.2d 778, 791 (Ind. 2007). Further, the post-conviction court found that there
was not a reasonable probability of the jury recommending a sentence other than death even had
counsel presented the additional testimony of his struggles in school and impressions and
observations of his educators. App. at 442. We agree and conclude counsel was not ineffective.

14
 B. Social History Report

As we indicated above, counsel obtained Ritchie’s school, adoption, and hospital records
and interviewed family members and persons familiar with Ritchie’s background. However,
counsel did not direct the mitigation specialist to prepare a social history report summarizing this
information. Ritchie claims failure to do so constitutes ineffective assistance. Br. of Appellant
at 42.

At the post-conviction hearing Ritchie offered a written social history report as an
exhibit. Upon reviewing the report, the post-conviction court found that it reveals nothing that
would have significantly altered counsel’s presentation of Ritchie’s family background and
upbringing at trial. App. at 443. The Summary of Findings from the offered social history report
provides:

The social history investigation reveals that Benjamin Ritchie’s
nuclear and extended family is steeped in dysfunction. Ben was
raised in a family system characterized by neglect, abuse, sexual
promiscuity, infidelity, and mental illness. There is also a
multigenerational history of alcohol abuse and addiction, violence,
the rejection and abandonment of children, and various forms of
criminal and antisocial behavior.

Pet’r P-Cr. Ex. 20 at 3.

We first observe that because of the hearsay statements contained throughout the report,
it is not altogether clear whether the report itself would have been admissible at trial over a
timely objection. 9 In any event, Ritchie’s counsel presented the same information at trial, by
way of live testimony, as that provided for in the social history report offered at the post-

9
An investigative report may be admissible if it meets the requirements of Indiana Evidence Rule 803(8).
Joyner v. State, 736 N.E.2d 232, 243 (Ind. 2000). The United States Supreme Court recently discussed
this issue in Wiggins, 539 U.S. 510. The majority found the social history report “may have been
admissible under Maryland law,” recognizing a relaxed standard to allow for the consideration of any
aspect of the defendant’s character the defendant would offer as a basis for a sentence less than death. Id.
at 536-37. The dissent took issue with this statement. Wiggins, 539 U.S. at 555-56 (Scalia, J.,
dissenting) (finding the statements within the social history report are hearsay, “were of especially
dubious reliability,” and would be inadmissible in a court of law).

15
conviction hearing. Ritchie’s mother testified about her use of drugs while pregnant with Ritchie
and during his childhood, which was confirmed by other witnesses. Tr. at 2283. Tony Wheeler,
his mother’s paramour, described the sexual promiscuity, drug, and alcohol use occurring in
Martin’s household. Id. at 2322-27. Donald Peoples testified that this led to the deterioration of
their marriage. Peoples stated he took custody of the other two boys, leaving Ritchie behind
once Martin disclosed Ritchie was not in fact his son. Id. at 2350, 2355-56. Issues of
abandonment were also introduced through Martin’s account of leaving Ritchie at the age of two
to meet a man in Florida. Id. at 2296. Martin detailed how Ritchie was shuttled to Brenda and
Larry Cotton, only to be retrieved by her because of allegations of child abuse. Id. at 2307-08.
Shortly thereafter, Martin gave Ritchie to Verna and Oscar because the man she was living with
at the time did not want him. Id. at 2309. Lillie Clifton described how twelve-year-old Ritchie
felt he had no family and could not understand why Peoples or his mother did not want him. Id.
at 2407. The evidence of Ritchie’s dysfunctional family life was corroborated by several other
family members, including Ritchie’s uncle, id. at 2650-51 (recounting the abandonment by
Martin when she would fail to show for visits); id. at 2652 (describing Martin’s drug use);
Ritchie’s half-brother, id. at 2678 (recounting the drug use and promiscuity of Martin in front of
him at ages five and six); Oscar Ritchie, id. at 2712, 2714-15 (confirming Martin’s drug use
during pregnancy and abandonment of Ritchie); and Verna Ritchie, id. at 2739 (describing
Martin’s appearance as “loaded” while pregnant). As discussed previously, his continuing
troubles and mental difficulties throughout school were presented through testimony from Verna
and Oscar Ritchie and Dr. Gelbort. Id. at 2447, 2491, 2724, 2732.

The evidence presented painted the exact same picture as that described in the offered
social history report. We agree with the post-conviction court that the failure to direct the
preparation of a written social history report did not constitute deficient performance.

C. Failure to Obtain and Present Appropriate Psychological Experts

Ritchie’s claims regarding the use of psychological experts are two-fold. First, he claims
counsel was ineffective for failing to procure the testimony of Dr. Pearce, who was Ritchie’s
psychiatrist at Community North Hospital during and following an in-patient admission.

16
Second, he claims counsel was ineffective for not obtaining other psychological experts in
addition to Dr. Gelbort, a neuropsychologist. Br. of Appellant at 46, 50. We address each in
turn.

(1) Interview and Presentation of Dr. Pearce

Dr. Pearce was Ritchie’s attending psychiatrist when Ritchie, in 1991 at age ten, was
admitted as an in-patient to Community North Hospital, a psychiatric facility. Dr. Pearce
continued to follow up periodically on Ritchie’s condition after his release and through 1994. In
preparation for trial, counsel did not interview Dr. Pearce. P-Cr. at 184. At the post-conviction
hearing, Dr. Pearce testified about the hospitalization at Community North Hospital. He testified
Ritchie’s attempted suicide was an indicator of a serious mental health problem with depression.
Id. at 428. Additionally, he stated Ritchie was doing fairly well by late 1992. Id. at 433.

The record shows, however, that evidence of Ritchie’s hospitalization at Community
North Hospital was admitted at trial. Dr. Gelbort detailed Ritchie’s troubles as a child and
specifically testified before the jury about Ritchie’s psychiatric intervention at Community North
Hospital. Tr. at 2495-96. Adding cumulative evidence to Dr. Gelbort’s testimony would not
lead to a reasonable probability that the jury would have recommended a sentence other than
death. See Harrison, 707 N.E.2d at 784 (affirming the post-conviction court’s finding that the
mitigating evidence offered at the post-conviction hearing was cumulative and counsel was not
ineffective). We conclude that Ritchie has failed to show the outcome of his trial would have
been different had this additional testimony been presented. Thus, counsel was not ineffective.

(2) Presentation of Additional Psychological Experts

Dr. Gelbort reviewed Ritchie’s medical history and conducted a comprehensive
neuropsychological examination. He concluded that Ritchie suffered from a cognitive disorder
not otherwise specified. Tr. at 2498. Dr. Gelbort noted that the possible causes of Ritchie’s
cognitive disorder included: his mother’s ingestion of drugs and alcohol during pregnancy,
possible genetic predisposition, and possible head injuries. Id. at 2500-01. Counsel did not

17
present any additional psychological experts for the penalty phase of trial. P-Cr. at 192. Ritchie
claims that having competent psychological assistance would have shown that Ritchie suffered
from a bipolar disorder. Br. of Appellant at 22.

At the post-conviction hearing, Ritchie presented Dr. Robert Kaplan, a forensic
psychologist, who testified Ritchie suffered from an unspecified bipolar disorder. P-Cr. at 543.
Dr. Kaplan relied upon essentially the same facts and observations relied upon by Dr. Gelbort.
The post-conviction court found that when asked to identify the pertinent physiological brain
defect that was the cause of Ritchie’s afflictions, Dr. Kaplan was unable to specifically identify
the cause but only speculated genetic factors or early childhood abuse, neglect, substance abuse,
or abandonment could be to blame. App. at 439.

Dr. Kaplan offered the kind of expert testimony that in most circumstances can be
generated when an investigation is done in hindsight. Pointing to the fact that two doctors
disagree does not show counsel conducted an unconstitutionally inadequate investigation. See
Conner v. State, 711 N.E. 1238, 1256 (Ind. 1999) (noting “psychiatrists disagree widely and
frequently on what constitutes mental illness [and] on the appropriate diagnosis to be attached to
given behavior and symptoms”) (citation omitted). The ability of post-conviction counsel to
locate and present expert opinion disagreeing with the psychiatric evidence at trial does not lead
necessarily to the conclusion of counsel’s ineffectiveness. Id. We agree with the post-conviction
court that counsel was not ineffective in failing to further investigate Ritchie’s mental capacities
for mitigation purposes or in preparing and presenting that evidence to the jury.

III.
Ineffective Assistance of Appellate Counsel

The standard of review for a claim of ineffective assistance of appellate counsel is the
same as for trial counsel in that the petitioner must show appellate counsel was deficient in
performance and that the deficiency resulted in prejudice. Bieghler v. State, 690 N.E.2d 188,
192 (Ind. 1997). When raised on collateral review, ineffective assistance claims generally fall

18
into three basic categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure
to present issues well. Id. at 193-95.

Both of Ritchie’s claims of ineffective assistance of appellate counsel fall under the
second category. Ineffectiveness is very rarely found in these cases because “the decision of
what issues to raise is one of the most important strategic decisions to be made by appellate
counsel.” Id. at 193 (citation omitted). Accordingly, our review is particularly deferential to
counsel’s strategic decision to exclude certain issues in favor of others. Id. at 194. We first look
to see whether the unraised issues were significant and obvious upon the face of the record. Id.
If so, then we compare these unraised obvious issues to those raised by appellate counsel, finding
deficient performance “only when ignored issues are clearly stronger than those presented.” Id.
(citations omitted). If deficient performance by counsel is found, then we turn to the prejudice
prong to determine whether the issues appellate counsel failed to raise would have been clearly
more likely to result in reversal or an order for a new trial. Id.

Specifically, Ritchie claims appellate counsel failed to raise: (A) the inappropriateness of
Ritchie’s death sentence and (B) the constitutionality of the exclusion of a juror.

A. Inappropriateness of Ritchie’s Death Sentence

Article VII, Section 4 of the Indiana Constitution provides that “[t]he Supreme Court
shall have, in all appeals of criminal cases, the power to . . . review and revise the sentence
imposed.” Our rules authorize a revision of a sentence “if, after due consideration of the trial
court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Ind. Appellate Rule 7(B). On direct appeal, appellate
counsel did not raise a 7(B) challenge to the appropriateness of Ritchie’s sentence. Ritchie
contends that counsel’s failure to do so amounts to ineffective assistance.

19
 Before the 2002 amendments to Indiana’s Death Penalty Statute, 10 this Court as a matter
of course reviewed and revised sentences in capital cases without the need of counsel raising this
claim as a discrete issue. See, e.g., Minnick v. State, 698 N.E.2d 745, 760 (Ind. 1998) (“As part
of our death penalty review, we will independently consider the jury recommendation against
death and determine whether the death penalty is appropriate.”) (citation omitted); see also
Timberlake, 690 N.E.2d at 266 (“Each death penalty case receives individualized appellate
scrutiny to ensure that the death penalty is appropriate.”); Thompson v. State, 492 N.E.2d 264,
268 (Ind. 1986) (“[T]he State Supreme Court must review every capital sentence to ensure that
the penalty has not been imposed arbitrarily or capriciously.”). It is true that on direct appeal in
this case the Court did not engage in an independent evaluation concerning the appropriateness
of Ritchie’s sentence. However, counsel cannot be criticized for failing to raise an issue that this
Court routinely addressed on its own initiative. 11

In any event, even assuming for the sake of argument appellate counsel’s failure to raise a
7(B) challenge fell below an objective standard of reasonableness, Ritchie has not demonstrated
a reasonable probability that this issue would have resulted in this Court revising his death
sentence. The nature of the offense is that the victim of the murder was a law enforcement
officer acting in the line of duty. This Court has determined that shooting and killing an officer
acting in the line of duty is “certainly among the most severe circumstances warranting the death
penalty.” Pruitt v. State, 834 N.E.2d 90, 121 (Ind. 2005). As for his character, Ritchie argues
that he is “neither the very worst offender nor has he committed the worst offense” to warrant the
sentence of death. Br. of Appellant at 80. This Court has observed, “[T]he maximum possible

10
At the time of Ritchie’s crime, Indiana Code section 35-50-2-9(e) (1998) provided in pertinent part,
“The court shall make the final determination of the sentence, after considering the jury’s
recommendation, and the sentence shall be based on the same standards that the jury was required to
consider. The court is not bound by the jury’s recommendation.”
11
The 2002 amendments to Indiana’s sentencing statutes provided in pertinent part, “If the jury reaches a
sentencing recommendation [of either the death penalty or life imprisonment without parole], the court
shall sentence the defendant accordingly.” I.C. § 35-50-2-9(e). There has been no consensus on this
Court concerning whether our review and revise authority survives the 2002 amendments. See Pruitt,
834 N.E.2d at 122 (Shepard, C.J., concurring in result) (questioning the continued use of the
appropriateness review under the new sentencing scheme where the legislature has placed the question of
appropriateness in the hands of juries); see also Baer v. State, 866 N.E.2d 752, 766-67 (Ind. 2007)
(Shepard, C.J., concurring) (same).

20
sentences are generally most appropriate for the worst offenders.” Buchanan v. State, 767
N.E.2d 967, 973 (Ind. 2002) (citations omitted). But we have clarified: “This is not, however, a
guideline to determine whether a worse offender could be imagined. Despite the nature of any
particular offense and offender, it will always be possible to identify or hypothesize a
significantly more despicable scenario. Although maximum sentences are ordinarily appropriate
for the worst offenders, we refer generally to the class of offenses and offenders that warrant the
maximum punishment. But such class encompasses a considerable variety of offenses and
offenders.” Id.

Ritchie’s character includes an unfortunate childhood and mental health issues. It is of
course true that “evidence about the defendant’s background and character is relevant because of
the belief, long held by this society, that defendants who commit criminal acts that are
attributable to a disadvantaged background, or to emotional and mental problems, may be less
culpable than defendants who have no such excuse.” Penry v. Lynaugh, 492 U.S. 302, 319
(1989) (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring)).
Childhood abuse and privation may, along with other mitigators, “influence[] the jury’s appraisal
of . . . moral culpability.” Williams, 529 U.S. at 398. However, this Court has consistently held
that evidence of a difficult childhood warrants little, if any, mitigating weight. See Coleman v.
State, 741 N.E.2d 697, 703 (Ind. 2000) (rejecting the claim that evidence of childhood abuse and
neglect if presented to the sentencing court would have resulted in a sentence other than death);
Peterson v. State, 674 N.E.2d 528, 543 (Ind. 1996) (mitigating weight warranted by a difficult
childhood is in the low range); Loveless v. State, 642 N.E.2d 974, 977 (Ind. 1994) (showing such
evidence is occasionally declared not mitigating at all).

Ritchie cites Spranger v. State, 650 N.E.2d 1117 (Ind. 1995), to support his argument for
a revision of his sentence. In that case this Court affirmed the post-conviction court’s decision to
set aside Spranger’s death sentence based on the (b)(6)(A) aggravating factor, the victim of the
murder was a law enforcement officer acting in the course of duty. The post-conviction court
determined that Spranger was a “young man of limited mental ability with no history of violence
or criminal conduct.” Id. at 1125. These facts in Spranger are readily distinguishable. Here the
record shows that Ritchie has an extensive juvenile history – involving three battery charges –

21
that continued into adulthood. As the trial court observed, Ritchie’s history of juvenile offenses
demonstrated a “pattern of violent crimes finally escalating into murder.” Tr. at 2908. As
mentioned earlier in this opinion, at the post-conviction hearing Dr. Kaplan testified that Ritchie
suffered from a bipolar disorder. P-Cr. at 543. However, the post-conviction court found that
Ritchie had sufficient mental capacity to make appropriate decisions but did not make a great
effort to control his anger and continued to engage in destructive behaviors despite long-
sustained efforts by those around him. App. at 466-67. The post-conviction court concluded that
there was no evidence that Ritchie’s mental illness negated his conscious choice to fatally shoot
Officer Toney. Id. at 467. In sum, we conclude there is nothing about Ritchie’s character or the
nature of the offense Ritchie committed that would justify revising his capital sentence. Having
reached this conclusion, we reach its obvious corollary that Ritchie has failed to show that the
outcome of his direct appeal would have been any different had appellate counsel raised a 7(B)
challenge to his sentence.

B. Exclusion of a Prospective Juror

During voir dire, the State challenged eight prospective jurors for cause based on their
beliefs about the death penalty. Ritchie points to one in particular, prospective Juror McClimon
(“McClimon”). Ritchie argues the colloquy with McClimon did not establish that her views
about the death penalty substantially impaired her ability to follow her oath as a juror, and her
exclusion should have been challenged on direct appeal. Br. of Appellant at 82. 12

The United States Supreme Court has established certain principles regarding the
exclusion of jurors based upon their beliefs about the death penalty. First, a criminal defendant
has the right to an impartial jury not tilted in favor of capital punishment by selective
prosecutorial challenges for cause. Uttecht v. Brown, 127 S.Ct. 2218, 2224 (2007) (citing
12
The post-conviction court determined that trial counsel did not object to the removal of McClimon and
thus appellate counsel would have had to raise this issue as a fundamental error. App. at 465. The post-
conviction court concluded Ritchie did not show the dismissal constituted a fundamental error and
therefore failed to show appellate counsel was deficient in not raising the issue or that he was prejudiced
by the failure to do so. Id. The record does not support the post-conviction court’s findings. The record
shows that counsel objected to the removal of McClimon, citing to both federal and state authority. Tr. at
684. The trial court overruled the objection stating, “The Court is of the opinion that the prospective juror
does meet the standard of the Indiana code and of [Wainwright v.] Witt . . . .” Id. at 687.

22
Witherspoon v. Illinois, 391 U.S. 510, 521 (1968)); see also Bieghler v. State, 481 N.E.2d 78, 87
(Ind. 1985)) (The mere disagreement with the death penalty, conscientious scruples, or even
feelings that one would find it almost impossible to vote for death are not sufficient to exclude a
juror for cause.). Second, the State has a strong interest in having jurors able to apply the death
penalty within the State’s capital punishment framework. Uttecht, 127 S.Ct. at 2224 (citing
Wainwright v. Witt, 469 U.S. 412, 416 (1985)). To balance these interests, “a juror may not be
challenged for cause based on his views about capital punishment unless those views would
prevent or substantially impair the performance of his duties as a juror in accordance with his
instructions and his oath.” Witt, 469 U.S. at 420 (citation omitted) (emphasis omitted). If a
prospective juror is barred from jury service based on his or her views about capital punishment
on any broader basis than inability to follow the law or abide by his or her oaths, the United
States Supreme Court has established a per se rule requiring the vacation of a death sentence
imposed by a jury from which a potential juror had been erroneously excluded for cause. Gray
v. Mississippi, 481 U.S. 648, 659-60 (1987) (discussing the continued application of the per se
rule established in Davis v. Georgia, 429 U.S. 122 (1976)).

In determining whether the removal of a potential juror would vindicate the State’s
interest without violating the defendant’s rights, the trial court is required to make a finding as to
substantial impairment based in part on the demeanor of the juror. Uttecht, 127 S.Ct. at 2224
(citing Witt, 469 U.S. at 424-34); Daniels v. State, 453 N.E.2d 160, 166 (Ind. 1983) (When the
juror’s answers are equivocal it is the duty of the trial court to pursue the matter further until it is
established whether the juror is “irrevocably committed” to vote against the death penalty.).
Once a trial court has made a finding of substantial impairment deference is owed to the trial
court, and its finding is reviewed for an abuse of discretion. Uttecht, 127 S.Ct. at 2228.

Here the trial court supervised a diligent and thoughtful voir dire and engaged in a
lengthy discussion with McClimon. After indicating her feeling of not believing in the death
penalty, the following colloquy took place between the trial court and McClimon:

COURT: You would be required to weigh the mitigating and the
aggravating circumstances, and then to make a recommendation of
either the death penalty, life without parole, or a term of years.

23
 Now, if those were your options, do you feel that you would be
able to consider with an open mind whether or not the death
penalty should be recommended?
PROSPECTIVE JUROR McCLIMON: Yeah, I guess so.
COURT: Do you think that you might be able to recommend the
death penalty?
PROSPECTIVE JUROR McCLIMON: It’s possible. I mean I
guess I just have to hear the case.
COURT: Okay. That’s certainly a fair answer. It is important, so
you’re not precluding the fact that you might not ever be able to
recommend it?
PROSPECTIVE JUROR McCLIMON: Right, I guess, yeah.

Tr. at 679-80. However, when the prosecutor asked her if her beliefs would interfere with her
ability to follow her oath as a juror and fairly consider recommending the death penalty,
McClimon answered, “Yeah, I think it will.” Id. at 680. The prosecutor asked the same question
again, and she replied, “Yeah, it might. I just don’t know. I’ve never been put in a situation like
this. And before I’ve always felt that, like I said, that I just don’t – I’m not for the death penalty.
In some situations yeah, I guess so, but I don’t know.” Id. at 681. The prosecutor also asked
whether she could honestly see herself recommending the death penalty if Ritchie was found
guilty of murdering a police officer. McClimon answered, “I don’t think so. I don’t really think
I could.” Id.

The trial court upon hearing McClimon’s conflicting and equivocal answers concluded
that she could not fulfill her duties and sworn oath as a juror. Id. at 687. A potential juror’s bias
cannot always be deduced in a question-and-answer session, and “many veniremen simply
cannot be asked enough questions to reach the point where their bias has been made
‘unmistakably clear.’” Uttecht, 127 S.Ct. at 2223 (quoting Witt, 469 U.S. at 424-25). Despite a
lack of clarity in the record, “there will be situations where the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully and impartially apply the law.”
Witt, 469 U.S. at 425-26. When the prospective juror gives ambiguous, equivocal, or conflicting
statements, assessing the demeanor of the venire is a critical factor in evaluating the attitude and
qualification of potential jurors. Uttecht, 127 S.Ct. at 2224. Thus, the deference given to the
trial court encompasses its resolution of any equivocations and conflicts in the prospective
jurors’ responses on voir dire. Witt, 469 U.S. at 426.

24
 Considering the voir dire as a whole and giving the requisite deference to the trial court’s
findings, we cannot say there is a reasonable probability upon appeal that this Court would have
found the trial court abused its discretion in finding McClimon’s views against the death penalty
substantially impaired her ability to follow her oath. Thus, we cannot say this issue was clearly
stronger than those presented on direct appeal. On this issue, counsel’s performance was not
deficient.

IV.
Denial of a Full and Fair Post-Conviction Hearing

Ritchie contends that he was denied a full and fair post-conviction hearing. This
contention is based on the following facts. At the hearing, Ritchie called as an expert witness a
lawyer with extensive experience in capital litigation. The witness provided lengthy testimony
concerning what is expected of counsel in the preparation and trial of a capital case, the
prevailing professional norms for a capital defense attorney, and, on a wide variety of issues,
what he would have done differently than Ritchie’s lawyers. P-Cr. at 640-76. However, on at
least three occasions during the witness’ testimony, Ritchie asked – sometimes worded slightly
differently – whether the witness had “an opinion regarding the reasonableness” of trial and
appellate counsel’s conduct. Id. at 655, 664, 671. Sustaining the State’s objection, the post-
conviction court would not permit the witness to give testimony on such an opinion. Ritchie
made an offer of proof, which essentially recounted many of the allegations raised in this appeal
which Ritchie contends amount to ineffective assistance. According to Ritchie, the witness
would have testified that the conduct of Ritchie’s trial and appellate counsel “fell below
prevailing professional norms and was unreasonable under the standards of the conduct of
counsel in capital defense cases in Indiana and nationally.” Id. at 684.

The decision to admit or exclude expert testimony is entrusted to the sound discretion of
the trial court, and we will reverse only for abuse of that discretion. Williams v. State, 706
N.E.2d 149, 163 (Ind. 1999). Although expert witnesses may testify concerning their opinions
generally, see Ind. Evidence Rule 702, experts may not testify “to opinions concerning intent,
guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has

25
testified truthfully; or legal conclusions.” Evid. R. 704(b) (emphasis added); see also Carter v.
State, 754 N.E.2d 877, 881-82 (Ind. 2001). And this is so because: (1) legal conclusions are not
helpful to the trier of fact, (2) legal conclusions are reserved solely for the court’s determination,
and (3) it is the function of the court, not the expert witness, to instruct on the law. See generally
13 Robert Lowell Miller, Jr., Indiana Practice, Indiana Evidence § 704.206, 460 (2d ed. 1995).

Apparently contending that an opinion about the reasonableness of counsel’s conduct is
not a legal conclusion, Ritchie cites Strickland for the proposition that “[t]he reasonableness of
performances is a ‘mixed question of law and fact.’” Br. of Appellant at 27. We first observe
that Strickland actually declares, “Ineffectiveness is not a question of basic, primary, or historical
fact. Rather, . . . it is a mixed question of law and fact.” Strickland, 466 U.S. at 698 (citations
omitted) (emphasis added); see also Coleman, 741 N.E.2d at 699 (“[B]oth the performance and
prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.”)
(citation omitted). In any event, even assuming for argument’s sake that Ritchie’s basic premise
is correct, this contention does not advance his claim. When facts sufficient to demonstrate
deficient performance are undisputed, then whether those facts show ineffective assistance
becomes a question of law. See, e.g., Moffitt v. State, 817 N.E.2d 239, 246 (Ind. Ct. App. 2004)
(declaring that where facts sufficient to create probable cause are undisputed probable cause is a
question of law).

In this case, the facts upon which Ritchie relies are not in dispute. The question is
whether those facts demonstrate ineffective assistance of counsel. This is a question of law for
the post-conviction court to resolve. We find no abuse.

Conclusion

We affirm the judgment of the post-conviction court.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

26