Lambert v. State

Attorneys for Appellant

Susan K. Carpenter
Public Defender of Indiana

Thomas C. Hinesley
Deputy Public Defender
Indianapolis, IN

Kathleen Cleary
Deputy Public Defender
Indianapolis, IN

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Priscilla J. Fossum
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

MICHAEL ALLEN LAMBERT
Appellant (Petitioner below),

v.

STATE OF INDIANA,
Appellee (Respondent below).

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) Supreme Court No.
) 18S00-9702-PD-96
)
)
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APPEAL FROM THE DELAWARE SUPERIOR COURT
The Honorable Robert L. Barnet, Jr., Judge
Cause No. 18D01-9101-CF-002

ON DIRECT APPEAL FROM THE DENIAL OF POST-CONVICTION RELIEF

March 5, 2001

SULLIVAN, Justice.

Michael Allen Lambert was sentenced to death for the murder of a
Muncie police officer. His conviction and sentence were upheld on direct
appeal and on rehearing. We now affirm the denial of Lambert’s petition
for post-conviction relief, finding that this Court did not engage in what
Lambert calls “unconstitutional appellate sentencing,” the post-conviction
judge did not err by declining to disqualify himself, and Lambert’s trial
and appellate counsel were not ineffective.

Background

Our earlier opinions in this matter describe in detail the crimes of
which Lambert was convicted. In brief, Lambert shot Muncie Police Officer
Gregg Winters five times in the back of the head on December 27, 1990. He
was under arrest at the time of the shooting and was handcuffed and alone
in the back of Winters’s patrol car. A jury convicted Lambert of Murder[1]
and the trial court sentenced him to death.[2]

We affirmed Lambert’s conviction and sentence on direct appeal. See
Lambert v. State, 643 N.E.2d 349 (Ind. 1994). A second opinion, issued on
rehearing, recognized that the trial court had improperly admitted victim
impact evidence during sentencing but upheld Lambert’s death sentence after
independent review of the aggravating and mitigating circumstances. See
Lambert v. State, 675 N.E.2d 1060 (Ind. 1996), cert. denied 520 U.S. 1255
(1997). Lambert petitioned for post-conviction relief and now appeals the
denial of that petition.

Discussion

Indiana law allows for collateral attack of a judgment of conviction
and sentence through a petition for ‘post-conviction relief.’ See Miller
v. State, 702 N.E.2d 1053, 1057 (Ind. 1998), cert. denied, 528 U.S. 1083
(2000). This quasi-civil procedure “create[s] a narrow remedy for
subsequent collateral challenges to convictions, which must be based on
grounds enumerated in the post-conviction rules.” Williams v. State, 724
N.E.2d 1070, 1076 (Ind. 2000) (citations omitted), cert. denied, 121 S. Ct.
886 (2001).

Under the post-conviction rules, the trial court must make findings of
fact and conclusions of law on all issues presented in the petition. See
Ind. Post-Conviction Rule 1(6). Our review on appeal is of these findings
and conclusions. See Weatherford v. State, 619 N.E.2d 915, 917 (Ind.
1993). The post-conviction procedures do not provide a petitioner with a
“super-appeal” or opportunity to consider freestanding claims that the
original trial court committed error. Such claims are available only on
direct appeal. Williams, 724 N.E.2d at 1076.

Although these principles are familiar, we cite them for a particular
reason here. It is not our practice to use our opinions to critique the
performance of counsel. We feel constrained, however, to say that
Lambert’s brief is for the most part organized and written with disrespect
for these principles of post-conviction review. The brief consists of 83
pages of argument, the first 61 of which contain claims framed as trial
court error. Only the final 22 pages and a seven-page supplemental brief
challenge decisions of the post-conviction court. The final 22 pages and
the supplemental brief incorporate by reference much of the material in the
first 61 pages, sometimes in only the most general way. Briefs so
organized and written hinder appellate review.

A petitioner who has been denied post-conviction relief – such as
Lambert – appeals from a negative judgment. “This is because at the trial
on the petition for post-conviction relief, the petitioner has the burden
of establishing any grounds for relief by a preponderance of the evidence.”
Miller, 702 N.E.2d at 1058. See also Ind. Post-Conviction Rule 1(5) (“The
petitioner has the burden of establishing his grounds for relief by a
preponderance of the evidence.”). “When a petitioner appeals from a
negative judgment, he or she must convince the appeals court that the
evidence as a whole leads unerringly and unmistakably to a decision
opposite that reached by the trial court.” Miller, 702 N.E.2d at 1058.
Stated slightly different, “[t]his Court will disturb a post-conviction
court’s decision as being contrary to law only where the evidence is
without conflict and leads to but one conclusion, and the post-conviction
court has reached the opposite conclusion.” Id.

I

Lambert contends that his death sentence must be vacated because this
Court acted without authority when we reweighed the aggravating and
mitigating circumstances and affirmed the sentence. See Appellant’s Br. at
72. He characterizes our opinion on rehearing as having “engag[ed] in
appellate sentencing” contrary to constitutional safeguards and statutory
procedures. Id. In this vein, Lambert asserts that: (1) the Indiana
Constitution and Indiana statutes do not grant this Court authority or
jurisdiction to impose a sentence; (2) our purported sentencing deprived
him of his constitutional and statutory right to neutral appellate review;
(3) the sentencing deprived him of his federally guaranteed due process
right to a hearing prior to sentencing; and (4) this Court failed to follow
the statutory procedures for sentencing.[3]

Our earlier opinion invoked our power to reweigh aggravating and
mitigating circumstances after finding flaw in a trial court’s sentencing
process. See Lambert v. State, 675 N.E.2d 1060, 1065 (Ind. 1996).[4] As
we noted in Bivins v. State:
Where we find an irregularity in a trial court’s decision to impose
the death sentence, this Court has various options, as correctly noted
by the defendant. Among these are: 1) to remand to the trial court
for a clarification or new sentencing determination; 2) to affirm the
death sentence if the constitutional error is harmless beyond a
reasonable doubt; and 3) to reweigh the proper aggravating and
mitigating circumstances independently at the appellate level.

642 N.E.2d 928, 957 (Ind. 1994) (emphasis added). We have invoked this
power in several death penalty cases. See Matheney v. State, 688 N.E.2d
883, 909-10 (Ind. 1997), cert. denied, 525 U.S. 1148 (1999); Bivins, 642
N.E.2d at 957. Cf. Bellmore v. State, 602 N.E.2d 111, 129-30 (Ind. 1992)
(recognizing option of independent review but choosing instead to remand).
As set forth above, Lambert’s claim for relief on this issue is grounded in
his assertion that it was beyond our authority under Indiana law to review
the propriety of Lambert’s sentence and affirm it after finding trial court
sentencing error. We reaffirm that our review of and decision to affirm
(or modify or reverse) a sentence under such circumstances is an exercise
of our constitutional authority to “review and revise” sentences. Ind.
Const. art. VII, § 4; Bellmore, 602 N.E.2d at 130 (“This Court has long
recognized and exercised its authority under our state constitution and
statutes to conduct an independent reweighing of aggravating and mitigating
factors in determining the appropriateness of a death penalty.”).

Lambert also contends that our decision on rehearing violated the
federal Constitution. But the United States Supreme Court has explicitly
approved this type of independent reweighing. For example, that Court has
held that “[i]n a weighing State, when a reviewing court strikes one or
more of the aggravating factors on which the sentencer relies, the
reviewing court may, consistent with the Constitution, reweigh the
remaining evidence or conduct a harmless error analysis.” Parker v.
Dugger, 498 U.S. 308, 319 (1990). See also Clemons v. Mississippi, 494 U.S.
738, 741 (1990).

II

Lambert contends that the post-conviction court’s judgment must be
vacated and new post-conviction relief proceedings ordered because the
judge erroneously declined to disqualify himself. Lambert maintains that
the post-conviction judge – who also presided over Lambert’s trial –
demonstrated disqualifying bias through statements he made during the
sentencing phase of the original trial. He also argues that the judge could
not act as a neutral factfinder on issues related to the presence of
uniformed officers in the courtroom during the original trial and
sentencing because the judge himself observed the officers. The post-
conviction court denied Lambert’s motion for a new judge, concluding that
“these facts do not support a rational inference of bias or prejudice.”
(R.P-C.R. at 176.)

First, Lambert argues that the post-conviction judge demonstrated
disqualifying bias through the following eight statements he made during
the original trial: (1) “This act clearly was not the result of, or caused
[by,] alcohol. This was the product of a wicked mind”; (2) “The
Defendant’s response was, in my judgment, indicative of a very serious
character defect manifested by one who is bent on violence”; (3) “His act
was totally and completely depraved”; (4) “[I]n this case, for one so young
to react so viciously and so violently is, I think, evidence of a malignant
character”; (5) “Even though the Defendant was only twenty (20) years of
age at the time of the act, he had already become a ruthless individual
without conscience, and without regard for the consequences of his
actions”; (6) “It seems to me that it takes a special type of individual
to deliberately kill a policeman. It takes a person without respect for
authority, for the law, or for human life itself”; (7) “In the Court’s
judgment, the only possible mitigating circumstances in this tragic affair
are the age of the Defendant and the fact that, although not likely,
rehabilitation is always a possibility”; (8) “[T]his was an intentional and
deliberate execution.” (Supplemental Record of Post-Conviction Proceedings
at 1-3).

Under Post-Conviction Rule 1(4)(b),[5] a “petitioner may request a
change of judge by filing an affidavit that the judge has a personal bias
or prejudice against the petitioner.” The rule “requires the judge to
examine the affidavit, treat the historical facts recited in the affidavit
as true, and determine whether these facts support a rational inference of
bias or prejudice.” State ex rel. Whitehead v. Madison County Cir. Ct.,
626 N.E.2d 802, 803 (Ind. 1993). “[A] change of judge is neither
‘automatic’ nor ‘discretionary,’ [but] calls for a legal determination by
the trial court.” Sturgeon v. State, 719 N.E.2d 1173, 1181 (Ind. 1999).
However, we presume that a judge is not biased against a party. See Taylor
v. State, 587 N.E.2d 1293, 1303 (Ind. 1992). Cf. In re Adoption of Johnson,
612 N.E.2d 569, 572 (Ind. Ct. App. 1993) (“Judges are credited with the
ability to remain objective notwithstanding their having been exposed to
information which might tend to prejudice lay persons.”), transfer denied.

Under the rule, the post-conviction court is disqualified from hearing
a case only if the judge holds “a personal bias or prejudice.” Ind. Post-
Conviction Rule 1(4)(b) (emphasis added). Typically, a bias is “personal”
if it stems from an extrajudicial source – meaning a source separate from
the evidence and argument presented at the proceedings. See, e.g., Noble
v. State, 725 N.E.2d 842, 847-49 (Ind. 2000) (“Generally, a trial judge’s
exposure to evidence through judicial sources is, alone, insufficient to
establish bias.”) (emphasis added); Sturgeon, 719 N.E.2d at 1181-82 (Ind.
1999) (same). Cf. Harrison v. State, 707 N.E.2d 767, 790 (Ind. 1999) (“A
trial court’s adverse rulings on judicial matters do not indicate a
personal bias toward a defendant that calls into question the trial court’s
impartiality.”), cert. denied, 529 U.S. 1088 (2000). As the United States
Supreme Court noted in interpreting a federal rule similar to our own:[6]
The judge who presides at a trial may, upon the completion of the
evidence, be exceedingly illdisposed towards the defendant, who has
been shown to be a thoroughly reprehensible person. But the judge is
not thereby recusable for bias or prejudice, since his knowledge and
the opinion it produced were properly and necessarily acquired in the
course of the proceedings, and are indeed sometimes (as in a bench
trial) necessary to completion of the judge’s task. ... “Impartiality
is not gullibility. Disinterestedness does not mean child-like
innocence. If the judge did not form judgments of the actors in those
court-house dramas called trials, he could never render decisions.”
Also not subject to deprecatory characterizations as “bias” or
“prejudice” are opinions held by judges as a result of what they
learned in earlier proceedings.

Liteky v. United States, 510 U.S. 540, 550-51 (1994) (emphasis added)
(citations omitted).[7]

This case closely resembles Hollins v. State, where we upheld a
murder conviction despite similar judicial statements during sentencing:
A trial judge’s comments [during sentencing] necessarily reflect the
evidence he or she hears during the trial. Trial judges may consider
the conduct and attitude of the defendant when imposing sentence. In
fact, most of the above comments stem from the considerations mandated
by Indiana’s sentencing statute. In view of the nature and
circumstances of the defendant and the crimes, the trial judge’s
comments on the coldness of the defendant, his lack of remorse, and
his proclivity to kill again were entirely consistent with the
considerations required to be taken into account by the judge in
determining the defendant’s sentence. The comments do not reflect
disqualifying personal bias or prejudice against the defendant.

679 N.E.2d 1305, 1307 (Ind. 1997) (emphasis in original).

The statements made during Lambert’s sentencing were part of the
judge’s judicial function and did not stem from an extrajudicial source.
See, e.g., Noble, 725 N.E.2d at 847-49. The trial court’s probing of
Lambert’s character and the circumstances of his crime was unavoidable.
The Eighth Amendment requires a judge to make “an individualized
determination on the basis of the character of the individual and the
circumstances of the crime” before imposing a sentence of death. Zant v.
Stephens, 462 U.S. 862, 879 (1983) (emphasis in original). The fact that
the judge used emotional language[8] in describing Lambert’s character and
crime does not demonstrate personal bias or prejudice outside of the
judicial function.

Second, Lambert contends that the post-conviction judge was unable to
make impartial findings of fact or conclusions of law in regards to his
claims relating to the presence of uniformed, armed police officers during
trial and sentencing. He argues that the post-conviction judge “could not
sit as a neutral factfinder because his personal views of what occurred in
his courtroom [at trial] destroyed his ability to receive evidence on that
very subject in a detached fashion. His recollection could not be tested
by the adversarial process.” Appellant’s Br. at 88. Lambert does not
explain why the post-conviction court’s personal views concerning officers
in the trial courtroom would impermissibly bias his ability to receive
evidence on post-conviction review. We see no reason why the post-
conviction judge’s personal views towards the police officer claims would
affect his impartiality more than any other claim that relates to events at
trial. Taking Lambert’s arguments on this point to their logical extreme
would mean that a judge who tries the original case could not sit as the
judge of a collateral proceeding because “his personal view of what
occurred in his courtroom [would have] destroyed his ability to receive
evidence on that very subject.” Appellant’s Br. at 88. We rejected such a
per se approach to motions for a change of judge in State ex rel. Whitehead
v. Madison County Circuit Court, 626 N.E.2d 802, 803 (Ind. 1993), and we
reaffirm that holding here. See also State ex rel. Rondon v. Lake Superior
Court, Criminal Div. Two, 569 N.E.2d 635, 636 (Ind. 1991) (DeBruler, J.
dissenting) (“The rule rejects the proposition that there should be an
automatic change of venue in post-conviction cases.”).[9] Lambert is not
entitled to a change of judge simply because the post-conviction judge
presided over the original trial and sentencing.

III

Lambert contends that his conviction and death sentence must be
vacated because counsels’ performance at trial was so deficient that it
denied him the effective assistance of counsel guaranteed by the Sixth and
Fourteenth Amendments to the federal constitution.[10] To establish
ineffective assistance of counsel, Lambert must show that (1) counsel’s
performance fell below an objective standard of reasonableness based on
prevailing professional norms; and (2) “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to undermine the confidence in the outcome.” Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984). As for the first component of
an ineffective assistance claim – counsel’s performance – we have noted
that “[c]ounsel is afforded considerable discretion in choosing strategy
and tactics, and we will accord that decision deference. A strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
State v. Holmes, 728 N.E.2d 164, 172 (Ind. 2000).[11] As for the second
prong, the Supreme Court has recently reaffirmed the Strickland standard
for prejudice in ineffective of assistance of counsel claims. In Williams
v. Taylor, the Court held that in most circumstances deficient performance
of counsel will only be prejudicial when “‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” 529 U.S.
362, 391 (2000) (quoting Strickland, 466 U.S. at 694).

A substantial number of the errors Lambert asserts were committed by
his counsel are claims that counsel did not interpose certain objections or
failed to tender certain jury instructions. In almost all of these
situations, the post-conviction court made findings of fact from which it
concluded that the objection in question would have been overruled or the
instruction in question would have been refused. As discussed in greater
detail supra, we will reverse “a post-conviction court’s decision as being
contrary to law only where the evidence is without conflict and leads to
but one conclusion, and the post-conviction court has reached the opposite
conclusion.” Miller v. State, 702 N.E.2d 1053, 1057-58 (Ind. 1998), reh’g
denied.

Given this standard of review, once a post-conviction court makes
findings of fact from which it concludes that an objection would have been
overruled or an instruction would have been refused, we first examine
whether the evidence supports the findings of fact. If it does, then the
post-conviction court’s conclusion will be reversed only if those findings
dictate that under applicable law, the objection was required to be
sustained or instruction required to be given. So long as under applicable
law, the trial court could have overruled the objection or refused the
instruction, the post-conviction court’s conclusion that the trial court
would have done so will be affirmed.

A

Lambert contends that his trial counsel were ineffective for failing
to object to the presence of uniformed, armed police officers in the
courtroom during trial.[12] Lambert argues that the presence of the
officers pressured the jury to convict and the judge to sentence him to
death. As such, he argues that trial counsel should have moved to restrict
the officers’ appearance. The State counters that Lambert was not
prejudiced by the presence of the officers because the jury box faced away
from the gallery, the judge excluded “signs of mourning” from the
courtroom, and the defendant had a strategic reason for not excluding the
officers in that he did not want to anger the law enforcement officers that
he would later call to the stand.

The post-conviction court made certain findings of fact from which it
concluded that trial counsels’ performance was not deficient for failing to
object to the officers because such an objection would have been overruled.
Appellant’s Appendix at 60 (“Counsel need not have moved for exclusion of
uniformed police officers from the courtroom because the officers had a
right to be present and their presence did not render the proceeding
fundamentally unfair or the result inherently unreliable.”). The post-
conviction court found that: (1) “There were uniformed Muncie Police
officers present among the spectators in the gallery during trial, but
counsel made no objection to their presence”; (2) “[Trial counsel]
remembers that the audience was usually about 1/4th police officers, though
other evidence indicates that the number of uniformed officers exceeded
twenty during the penalty phase and sentencing”; (3) “The layout of the
courtroom shows that while seated in the jury box, jurors had their backs
to the officers in the gallery and were even separated from the gallery by
a half-wall and a transparent glass shield that rose up above that half-
wall”; (4) “The officers did not brandish their weapons or engage in any
other threatening gestures to the jury or judge.” Appellant’s Appendix at
15-16.

There was evidence to support the post-conviction court’s findings of
fact. Lambert introduced a videotape and diagram of the courtroom
demonstrating that the room is as described by the post-conviction court.
Lambert’s lead trial counsel also described the room as containing a glass
barrier between the jury and the spectators. He compared the glass barrier
to one found in a hockey rink and testified that it would “[p]resumably ...
keep any noise from the gallery from affecting the jury.” (Id.) He also
testified that the jurors faced away from the audience so that “once the
jury was seated, they did not have a view of the gallery ... .” (R.P-C.R.
at 1254.) He testified that he could not recall any disruptions by the
officers and Lambert’s second counsel testified that the officers did not
brandish or show off their weapons. The second counsel also testified that
the officers typically composed a quarter to a third of the audience and
that six to eight officers attended the trial on most days, with the number
rising to about fifteen during important phases of the trial.

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that reached by the post-conviction court.
“When an ineffective assistance of counsel claim is based on trial
counsel’s failure to make an objection, the appellant must show that a
proper objection would have been sustained by the trial court.” Lloyd v.
State, 669 N.E.2d 980, 985 (Ind. 1996). Because the post-conviction
court’s conclusion that the trial court would have overruled an objection
to the presence of the officers was supported by the evidence, we will
uphold the post-conviction court if the trial court could have overruled
the objection under applicable law. That is, we will reverse the post-
conviction court only if the trial court was compelled as a matter of law
to sustain an objection. We have repeatedly held that control over
spectators in a courtroom is a matter of trial court discretion. See,
e.g., Hill v. State, 497 N.E.2d 1061, 1067 (Ind. 1986) (“The trial judge
has discretion to determine whether the defendant has been prejudiced by a
spectator’s conduct.”); Dudley v. State, 480 N.E.2d 881, 901 (Ind. 1985)
(finding no abuse of discretion for trial court’s refusal to grant a
mistrial because of the presence of uniformed police officers during juror
examination); Palmer v. State, 153 Ind. App. 648, 667, 288 N.E.2d 739, 751
(1972) (“The court has wide discretion in determining whether a party
litigant has been prejudiced by ... an atmosphere created by spectators in
the courtroom and it is solely within his province and his duty to
determine if the party has been prejudiced ... .”) (emphasis added). As
such, the trial court here had latitude to decide whether to restrict the
officers’ appearance. We cannot say that the trial judge would have abused
that discretion as a matter of law by denying a motion to restrict the
officers. The judge had already granted Lambert’s motions to prohibit any
signs of mourning in the courtroom. The jurors were aware that the trial
focused on the murder of a police officer and likely would have expected
the victim’s fellow officers to follow the trial. See, e.g., Smith v.
Farley, 59 F.3d 659, 664 (7th Cir. 1995) (“Of course if you kill a
policemen and are put on trial for the crime, you must expect the courtroom
audience to include policemen ... .”); Brown v. State, 256 Ind. 444, 446,
269 N.E.2d 377, 378 (1971) (“All citizens are well aware of the fact that
many officers wear uniforms and carry arms. Their presence in court rooms
is a common occurrence. We know of no manner in which it could be
determined whether the fact they are in uniform helps, hinders or is of no
consequence to the State’s case.”). The record demonstrates that the
jurors faced away from the gallery during testimony and argument. And
there is no evidence of a directed effort to prejudice the jury or of any
disturbance by the police officers. Cf. Smith, 59 F.3d at 664 (“Efforts by
spectators at a trial to intimidate judge, jury, or witnesses violate the
most elementary principles of a fair trial.”) (citations omitted).[13]
Because the trial court could have denied a motion to restrict the
officers, the post-conviction court could properly find that Lambert was
not denied the effective assistance of counsel on this issue.

B

Lambert next argues that trial counsel were ineffective for failing
to keep out of evidence both a videotaped demonstration of the shooting and
pictures of Officer Winters with family members. Lambert argues that these
exhibits prejudiced the jury through “undue emotion.” Appellant’s Br. at
54. As for the demonstration, this Court held on direct appeal that the
trial court was within its discretion to admit the videotape. See Lambert
v. State, 643 N.E.2d 349, 353 (Ind. 1994). As it was in the court’s power
to admit the videotape, Lambert’s counsel was not ineffective for failing
to keep it out of evidence.

Second, Lambert argues that counsel should have objected to the
admission of photographs of the victim with family members. The post-
conviction court concluded that “the propriety of victim-impact evidence
was decided on direct appeal and may not be relitigated in this proceeding.
The claim of prosecutor misconduct involving a photo of the victim’s
family is res judicata as it is encompassed within the decided issue.”
Appellant’s Appendix at 43-44. We agree that these photographs were part
of the “victim impact evidence” that our rehearing opinion held was
inadmissible. Lambert v. State, 675 N.E.2d 1060, 1064 (Ind. 1996). In our
rehearing opinion, we specifically referred to at least one of the
photographs in describing what the impermissible “victim impact” evidence
was: “[Molly Winters] was permitted to lay a foundation for admission into
evidence of a photo of the family taken the previous Christmas.” Id. at
1062. While, as Lambert notes, the actual photos were not included in the
trial record because of their size, our rehearing opinion reflects our
acknowledgement of these photographs and our inclusion of them under the
rubric of “victim impact evidence.” As such, we have already determined
that these photographs should not have been admitted during the penalty
phase. We then reweighed the aggravating and mitigating circumstances and
upheld the death sentence. Id. These issues were thus fully litigated on
direct appeal and rehearing. We affirm the post-conviction court’s
determination that res judicata bars this claim.

C

Lambert claims that his counsel were ineffective for failing to object
to numerous comments the prosecutor made during argument in both the guilt
and penalty phases. He contends that his counsel should have objected to
argument that: (1) disparaged Lambert’s character; (2) disparaged his
defense strategy; (3) quoted testimony that Lambert called Winters “a pig”;
(4) noted Lambert’s laughter during trial; (5) stated that Winters
struggled for eleven days before dying; (6) emphasized the number of police
officers in attendance and included a poem about fallen police officers;
(7) suggested that the aggravator of killing a police officer should always
override the mitigating evidence presented; and (8) mentioned Lambert’s
juvenile delinquency adjudication.

We note initially the general rule that

To prove ineffective assistance for failure to object to the State’s
closing argument, a defendant must prove that his objections would
have been sustained, that the failure to object was unreasonable, and
that he was prejudiced. During closing argument, a “prosecutor may
argue both law and facts and propound conclusions based upon his or
her analysis of the evidence. It is proper to state and discuss the
evidence and all reasonable inferences to be drawn therefrom, provided
the prosecutor does not imply personal knowledge independent of the
evidence.”

Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997) (quoting Marsillett v.
State, 495 N.E.2d 699, 708 (Ind.1986)) (citations omitted). Based on these
principles, the post-conviction court stated in its conclusions of law that
Counsel need not have interposed objections or made other requests for
relief in response to the prosecutor’s closing argument in the guilt
phase. The argument was appropriate. Moreover, regardless of whether
the remarks were in fact objectionable, counsel could have determined
as a matter of strategy to rely upon his own closing argument to rebut
the prosecutor rather than object and risk giving undue emphasis to
the prosecutor’s remarks.

Appellant’s Appendix at 63 (citations omitted). See also Appellant’s
Appendix at 68

(“Because the prosecutor’s closing argument in the penalty and sentencing
hearings was proper ... counsel need not have objected or sought curative
measures.”). Viewed in the respective contexts in which the prosecutor’s
comments were made, we conclude that the post-conviction court’s findings
support these conclusions.

First, the post-conviction court made certain findings of fact from
which it concluded that trial counsel’s performance was not deficient for
failing to object to “fourteen different derogatory and inflammatory
references to Lambert” made by the prosecutor. Appellant’s Br. at 56. The
post-conviction court concluded that trial counsel were not ineffective
because an objection to these comments would not have been successful.
Appellant’s Appendix at 63, 68. (“The [prosecutor’s] argument was
appropriate.”) The post-conviction court found that the prosecutor’s
closing argument “included characterizations of Lambert as an ‘assassin’
and ‘executioner’ and of his crime as ‘cold-blooded’ and ‘ruthless,’ etc.
One theme of the prosecutor’s argument was that Lambert intentionally
murdered Officer Winters ... .” Appellant’s Appendix at 8-9.

Our review of the post-conviction court’s findings does not lead us
to an opposite conclusion than that reached by the post-conviction court.
“As a general proposition, the prosecutor must confine closing argument to
comments based upon the evidence presented in the record. The prosecutor
may argue both law and facts and propound conclusions based upon his or her
analysis of the evidence.” Marsillett, 495 N.E.2d at 708. Each of these
comments was based on specific evidence in the record and an objection
would not have been sustained even if counsel had made one. See Brennan v.
State, 639 N.E.2d 649, 652-53 (Ind. 1994) (rejecting ineffective assistance
of counsel claim for trial counsel’s failure to object when the prosecutor
called defendant “a cold-blooded killer” during argument). For example,
Lambert contends that the prosecutor committed misconduct by calling him an
“assassin” and “gutless.” (R. at 5791.) However, these comments arose when
the prosecutor questioned Lambert’s level of intoxication and argued that
Lambert intended to kill Winters. In this context, the prosecutor
contrasted Lambert’s shooting of the defenseless Winters with his
acquiescence to Kirk Mace, the arresting officer:
This wasn’t an act of pulling a gun out. It was calculated, thought-
out, intentional maneuver to put the gun to the back of Gregg’s head.
It was not a random pulling out of a gun and shooting.
Well, if he’s able to do this, why doesn’t he shoot Kirk Mace.
He didn’t shoot Kirk Mace because Kirk Mace never turned his back on
him. He is truly the assassin. He is gutless. Kirk Mace was facing
him. He didn’t have the guts to take on Kirk Mace.

(Id.) (emphasis added). For these reasons, the trial court could properly
have overruled a defense objection to the prosecutor’s statements.
Moreover, Lambert’s defense counsel could have reasonably decided that
objecting to these individual negative comments, which were interspersed at
different places in the argument, would draw undue attention to them. This
choice was a reasonable strategic decision. See Monegan v. State, 721
N.E.2d 243, 254 (Ind. 1999) (finding a reasonable strategic decision not to
object to prosecutor’s statement that “[I] guess he gets high off of
hurting people and killing people”; “[C]ounsel could well have decided to
let these brief references pass. In such circumstances, we cannot conclude
that Defendant received ineffective assistance of counsel.”).

Second, the post-conviction court made certain findings of fact from
which it concluded that trial counsels’ performance was not deficient for
failing to object to comments disparaging Lambert’s defense strategy and
suggesting he lacked remorse. Again, the post-conviction court concluded
that the trial court would not have sustained an objection. Appellant’s
Appendix at 63, 68. To support this conclusion, the court found that “the
prosecutor’s argument was that ... [Lambert] was not being truthful about
what he remembered of the shooting, that the defense expert’s opinion was
based on Lambert’s self-serving recollection of events and that the jury
should not, therefore, believe the defense.” Appellant’s Appendix at 9.

Our review of the post-conviction court’s findings does not lead us
to an opposite conclusion than that reached by the post-conviction court.
“When an ineffective assistance of counsel claim is predicated on counsel’s
failure to make an objection, appellant must show that a proper objection
would have been sustained by the trial court.” Jones v. State, 536 N.E.2d
267, 272 (Ind. 1989). The trial court could have overruled an objection to
the comments Lambert contests. The prosecutor used the comments to make
his case against Lambert’s witnesses and their credibility. For example,
the remark that Lambert’s testimony was “self-serving, convenient, and
unbelievable” (R. at 5754) was made as the prosecutor attacked Lambert’s
memory loss and argued that he intended to kill Winters. Placed in
context, these comments were argument based on the facts in evidence.[14]
Moreover, defense counsel could reasonably have decided “to let these brief
references pass.” Monegan, 721 N.E.2d at 254. The trial court would have
been within its discretion to overrule an objection to these comments.

Third, the post-conviction court made certain findings of fact from
which it concluded that trial counsels’ performance was not deficient for
failing to object when the prosecutor said that Lambert called Winters
“just a pig.”[15] The post-conviction court concluded that the trial court
would not have sustained an objection. Appellant’s Appendix at 63, 68.
To support this conclusion, the court found that a witness testified “that
when he asked Lambert how he could just take a life, Lambert responded, ‘It
was just a pig.’” Appellant’s Appendix at 7.

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that reached by the post-conviction court.
Here, the prosecutor quoted directly from the witness’s testimony and the
prosecutor used the comment in the context of describing Lambert’s intent
to kill. An objection to this comment need not have been sustained.

Fourth, the post-conviction court made certain findings of fact from
which it concluded that trial counsel’s performance was not deficient for
failing to object to the prosecutor’s reference to Lambert’s laughter
during the trial.[16] The post-conviction court concluded that trial
counsel could have made reasonable strategic decisions not to object during
closing argument. Appellant’s Appendix at 63. The findings, while not
specifically mentioning Lambert’s laughter, refer to the prosecutor’s
arguments that Lambert lacked remorse and that “Lambert had not apologized
... .” Appellant’s Appendix at 9.

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that reached by the post-conviction court.
This comment was an isolated occurrence and Lambert’s counsel could
reasonably have decided not to draw undue attention to it. See Conner v.
State, 711 N.E.2d 1238, 1250 (Ind. 1999) (“By choosing not to object to ...
the State’s closing argument, defense counsel avoided drawing attention to
testimony or argument unfavorable to the defendant. This was a legitimate
strategy.”), cert. denied, 121 S.Ct. 81 (2000). As part of this tactical
decision, Lambert’s counsel worked the laughter into his attempts to
humanize Lambert during sentencing: “[Y]ou have seen Mike maybe smile just
as you people have smiled from time to time. You have seen him cry just as
you have cried from time to time. It’s because he’s a human being. He’s got
feelings … .” (R. at 5975.)

Fifth, the post-conviction court made certain findings of fact from
which it concluded that trial counsel’s performance was not deficient for
failing to object to the prosecutor’s statement that Winters struggled for
eleven days. The post-conviction court concluded that the trial court
would not have sustained an objection. Appellant’s Appendix at 63, 68.
The post-conviction court found that the “prosecutor also pointed out ...
that Officer Winters was a family man who did not have a chance to defend
himself but who struggled for 11 days after being shot.” Appellant’s
Appendix at 9.

Our review of the post-conviction court’s findings does not lead us
to an opposite conclusion than that reached by the post-conviction court.
The comment arose in the context of the prosecutor’s argument to the jury
that Lambert’s actions caused Winters’s death. The prosecutor was required
to prove causation and as such this statement was proper argument.

Sixth, the post-conviction court made certain findings of fact from
which it concluded that trial counsel’s performance was not deficient for
failing to object to the prosecutor’s penalty phase reference to the
presence of uniformed, armed police officers and to his recitation of a
poem that paid tribute to slain police officers. The post-conviction court
concluded that the trial court would not have sustained an objection.
Appellant’s Appendix at 63, 68. To support this conclusion, the post-
conviction court found that
The prosecutor urged that killing a law enforcement officer is an
aggravating factor entitled to great weight because of the important
societal interest in protecting police, and that a person who kills an
officer is particularly dangerous. In support of his argument, the
prosecutor quoted from then-Justice Rehnquist’s opinion in Roberts v.
Louisiana discussing the importance of protecting police officers.
The prosecutor closed the opening portion of his penalty phase
argument by reciting a poem about the death of a police officer.

Appellant’s Appendix at 12 (citations omitted). The post-conviction court
also found that the prosecutor struck a theme that “likened police officers
to soldiers at war. But this comment followed the Rehnquist quotation,
which describes policemen as ‘foot soldiers of society’s defense of ordered
liberty, as well as defense counsel’s own description of police officers as
‘soldiers’ ... .” Appellant’s Appendix at 12-13.

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that reached by the post-conviction court. The
poem and the comments on the police officers’ presence were linked to the
prosecutor’s penalty phase case. These arguments stemmed from the
prosecutor’s burden to show that the sole aggravator – the killing of a
police officer in the line of duty – outweighed Lambert’s mitigating
evidence. As part of his effort to strengthen this aggravator, the
prosecutor could be expected to make arguments based on the unique duties
and dangers inherent in police work. Cf. Smith v. Farley, 59 F.3d 659, 664
(7th Cir. 1995) (“[W]e cannot say that this single, ambiguous sentence in
a long closing argument created an atmosphere of intimidation merely
because of the presence of some policemen in the courtroom as
spectators.”). While these comments “pushed the bounds of zealous
advocacy,”[17] the trial court was not required to sustain an objection to
them.[18]

Seventh, the post-conviction court made certain findings of fact from
which it concluded that trial counsel’s performance was not deficient for
failing to object to what Lambert characterizes as the prosecutor’s
suggestion that the aggravator of killing a police officer always overrides
mitigating evidence. As previously mentioned, the post-conviction found
that the prosecutor “urged that killing a law enforcement officer is an
aggravating factor entitled to great weight because of the important
societal interest in protecting police, and that a person who kills an
officer is particularly dangerous.” Appellant’s Appendix at 12.

Our review of the post-conviction court’s findings does not lead us
to an opposite conclusion than that reached by the post-conviction court.
First, while Lambert’s argument here is essentially that the prosecutor
misstated the law – that in every case, this aggravating circumstance will
override any and all mitigating evidence - it is not at all clear that that
was the prosecutor’s argument. It is equally susceptible to a reading that
the killing of the police officer here overrode the mitigating evidence
presented here. Second, defense counsel may make a reasonable strategic
choice to not object to a comment made during closing argument in order to
avoid drawing undue attention to the comment. See Conner, 711 N.E.2d at
1250 (“By choosing not to object to … the State’s closing argument, defense
counsel avoided drawing attention to testimony or argument unfavorable to
the defendant. This was a legitimate strategy.”). This comment was a
brief passage in an otherwise lengthy argument. It would have been
reasonable for counsel to choose not to draw undue attention to it,
especially since the jury instructions and defense counsel’s own argument
undercut the force of the comment.[19]
Finally, the post-conviction court made certain findings of fact from
which it concluded that trial counsel’s performance was not deficient for
failing to object when the prosecutor made a reference to Lambert’s
juvenile delinquency adjudication and juvenile crimes. The post-conviction
court concluded that the trial court would not have sustained an objection.
Appellant’s Appendix at 63, 68. The post-conviction court found that “the
prosecutor referred to Lambert’s delinquency adjudication, but Lambert
himself had presented evidence of his childhood generally and his
delinquency adjudication specifically.” Appellant’s Appendix at 12
(citations omitted).

Our review of the record indicates that there was evidence to support
the post-conviction court’s findings of fact. The record reflects that
when Lambert was a minor he was adjudicated to be a juvenile delinquent
because of a burglary in Farmland, Indiana, and was also convicted of
underage drinking. Although the trial court had earlier ruled that the
State could not introduce this evidence, Lambert presented it during his
penalty phase case. Lambert argued that the fact that he had no
significant criminal history was a mitigating circumstance to the
imposition of a death sentence.

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that reached by the post-conviction court. The
prosecutor only used this evidence to rebut the mitigator of no significant
criminal history. An objection to it need not have been sustained.

D

Lambert claims that he was denied the effective assistance of counsel
because his trial counsel failed to offer a series of jury instructions.
He asserts that his counsel should have proposed instructions on: (1)
missing evidence because the State never produced a videotape of his
statement to the police; (2) the questionable credibility of one of the
State’s witnesses; and (3) the fact that the videotaped demonstration did
not reflect Lambert’s mental state at the time of the shooting.[20] The
post-conviction court concluded that “[b]ecause the instructions ... were
not warranted, counsel performed competently despite not requesting them.”
Appellant’s Appendix at 49-51, 64.

We note as an initial matter that the post-conviction court concluded
that even had counsel tendered these instructions, the trial court would
not have given them. If we find that this conclusion was supported by the
evidence, we will uphold the post-conviction court if the trial court could
have properly refused the instruction under applicable law. That is, we
will reverse the post-conviction court only if the trial court was
compelled as a matter of law to give the instruction. “[F]ailure to
submit an instruction is not deficient performance if the court would have
refused the instruction anyway.” Williams v. State, 706 N.E.2d 149, 161
(Ind. 1999), cert. denied, 120 S. Ct. 1970 (2000). A trial court may not
accept a tendered instruction unless it correctly states the law, is
supported by evidence in the record, and is not covered by other
instructions. See Sherwood v. State, 702 N.E.2d 694, 698 (Ind. 1998),
reh’g denied; Sweany v. State, 607 N.E.2d 387, 389 (Ind. 1993). Under this
standard, we affirm the post-conviction court’s conclusion that trial
counsel would not have obtained these instructions even if they had sought
them.

First, the post-conviction court made certain findings of fact from
which it concluded that trial counsel’s performance was not deficient for
failing to offer a “missing evidence” instruction in regards to the fact
that the State never presented a videotape of Lambert’s statement to the
police. The post-conviction court concluded that the trial court would not
have given this instruction even if counsel sought it. Appellant’s
Appendix at 49, 63-64. To support this conclusion, the post-conviction
court found that “[t]he statement was typed but not videotaped by police.”
Appellant’s Appendix at 3.

Our review of the post-conviction court’s findings does not lead us
to an opposite conclusion than that counsel were not deficient for not
seeking this instruction. Parties are not entitled to an instruction that
is not supported by the evidence. See Sherwood, 702 N.E.2d at 698.
Because there was no evidence that a videotape existed, Lambert’s counsel
were not deficient for failing to offer the instruction. We affirm the
post-conviction court’s conclusion that the trial court would not have
granted this instruction.

Second, the post-conviction court made certain findings of fact from
which it concluded that trial counsel’s performance was not deficient for
failing to seek an instruction for the jury to spend special care in
weighing witness Richard Garske’s credibility.[21] The post-conviction
court concluded that this instruction was not supported by the law and
would not have been given even if sought by trial counsel: “It would have
been inappropriate for the court’s instruction to single out the testimony
of a particular witness for special scrutiny.” Appellant’s Appendix at 51,
63-64. The post-conviction court also found that the trial court
“instructed the jury that in assessing a witness’s testimony, they could
consider any interest, bias or prejudice the witness may have and any
relationship the witness may have with other witness or interested party.”
Appellant’s Appendix at 10.

The trial court in fact gave a general instruction on assessing the
credibility of witnesses.

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that reached by the post-conviction court.
Counsel’s performance is not deficient for failing to seek an instruction
that the trial court would and could deny. See Legue v. State, 688 N.E.2d
408, 410-11 (Ind. 1997). A defendant is not entitled to an instruction
that incorrectly applies the law. See Sherwood, 702 N.E.2d at 698. We
agree with the post-conviction court that the proposed instruction runs
counter to the law, and therefore the trial court could properly deny it.
“We have repeatedly rejected claims of error for refusal to instruct jurors
that they are required to consider the testimony of certain witnesses with
great care or caution.” Noojin v. State, 730 N.E.2d 672, 678 (Ind. 2000).
See also Goudy v. State, 689 N.E.2d 686, 696 (Ind. 1997) (upholding trial
court’s refusal of instruction that “advised the jury to give special
scrutiny to the testimony of those who may have reason to be hostile to
defendant.”); Bieghler v. State, 690 N.E.2d 188, 201 (Ind. 1997) (“Indiana
common law holds it improper to give an instruction concerning the
credibility of a particular witness because doing so usurps the jury’s
function. In effect, Bieghler says his lawyers have been constitutionally
ineffective for not asking us to change the rules.”).
Third, the post-conviction court made certain findings of fact from
which it concluded that trial counsels’ performance was not deficient for
failing to seek an instruction stating that the videotaped demonstration
did not depict Lambert’s mental state or sobriety at the time of the
shooting. The post-conviction court concluded that counsel’s performance
was not defective because the trial court would not have granted this
instruction even if counsel sought it. Appellant’s Appendix at 63-64.

The trial court gave a general instruction on how to analyze testimony
and evidence:
You are the exclusive judges of the evidence, the credibility of
the witnesses’ and of the weight to be given to the testimony of each
of them. In considering the testimony of any witness, you may take
into account his or her ability and opportunity to observe, the manner
and the conduct of the witness while testifying, any interest, bias,
or prejudice the witness may have, any relationship with other
witnesses or interested parties, and the reasonableness of the
testimony of the witness considered in the light of all the evidence
in the case.
...
In weighing the testimony to determine what or whom you will
believe, you should use your own knowledge, and experience and common
sense gained from day to day living. ...

(R. at 5799-800) (emphasis added).

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that reached by the post-conviction court. The
post-conviction court concluded that the trial court would not have given
this instruction even if trial counsel sought it. We will reverse this
conclusion only if the evidence does not support it or the trial court was
required to grant the instruction. A trial court is not required to grant
an instruction that is covered by other instructions. See Sherwood, 702
N.E.2d at 698. The proposed instruction here did precisely what the trial
court’s general instruction did – limit the jury’s use of evidence to its
logical purpose and prevent the jury from drawing illogical inferences. It
encouraged the jurors to use their “knowledge, experience, and common
sense” in examining the evidence, and basic reason would lead them to
conclude that the demonstration only showed that it was possible to pull
out a gun with arms handcuffed behind the back.[22] Lambert’s suggested
instruction is covered by this more general instruction. See Sherwood, 702
N.E.2d at 698.

As a final claim on instructions, Lambert also argues that his counsel
were ineffective for failing to oppose one of the trial court’s
instructions on the presumption of innocence. This instruction read: “In
clothing those charged with crime with the presumption of innocence, the
law does not contemplate that thereby the guilty should be shielded from
merited punishment. Its object is to protect the innocent so far as human
agencies can from the effects of unjust verdicts.” (R. at 5797.) The post-
conviction court concluded that the trial court would not have sustained an
objection to this instruction even if trial counsel interposed one.
Appellant’s Appendix at 64.

The post-conviction court found that, along with the contested
instruction, the trial court also “instructed the jury that the presumption
of innocence is designed to protect the innocent and to require the State
prove guilt beyond a reasonable doubt before conviction, not to shield the
guilty from merited punishment.” Appellant’s Appendix at 10.

At Lambert’s trial, the court instructed the jury that
the Defendant is presumed to be innocent until proven guilty beyond a
reasonable doubt. And this presumption prevails until the conclusion
of the trial, and you should weigh the evidence in light of this
presumption of innocence, and it should be your endeavor to reconcile
all the evidence with the presumption of innocence if you can.

(R. at 5795-96.)

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that reached by the post-conviction court. “In
order to establish that counsel’s failure to object to a jury instruction
was ineffective assistance of counsel, a defendant must first prove that a
proper objection would have been sustained.” Potter v. State, 684 N.E.2d
1127, 1132 (Ind. 1997). Moreover, Lambert “must prove that the failure to
object was unreasonable and resulted in sufficient prejudice such that
there exists a reasonable probability the outcome would have been
different” had counsel leveled an objection. Id. Lambert argues that his
counsel should have objected because he characterizes Spradlin v. State,
569 N.E.2d 948 (Ind. 1991), as holding that “trial judges could not
instruct juries in this manner.” Appellant’s Br. at 66. (emphasis added).
However, Spradlin recommended that judges refrain from using this type of
instruction. 569 N.E.2d at 951 (“Such instruction adds little, if any,
elucidation for the jury. We recommend that it not be used in future
cases.”) (emphasis added). We did not reverse Spradlin’s conviction on
this ground. See id. See also Matney v. State, 681 N.E.2d 1152 (Ind. Ct.
App. 1997) (“The Spradlin court did not, however, hold that the giving of
the instruction constituted reversible error.”), transfer denied.

The instruction given here was misleading and we reiterate that such
instructions should not be used. Indeed, had counsel objected, the trial
court should have sustained the objection. However, even if counsels’
performance was deficient in this regard, we do not reach a conclusion
different from the post-conviction court’s as to whether Lambert was
deprived of his Sixth Amendment right to counsel. To warrant relief,
Lambert must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to
undermine the confidence in the outcome.” Strickland v. Washington, 466
U.S. 668, 687-88, 694 (1984).

We hold that this instruction does not compel us to vacate Lambert’s
conviction for two reasons. First, the outcome of the trial was not likely
to be different without this instruction, as the evidence of Lambert’s
guilt was overwhelming. Lambert was alone in the backseat of Officer
Winters’s car when the officer was shot in the back of the head. He was
found with a gun that had been stolen from his employer and tests revealed
traces of gunpowder residue on his body. Second, we have held that “to
establish both deficient performance and resulting prejudice, a petitioner
must show more than isolated poor strategy, bad tactics, a mistake,
carelessness or inexperience; the defense as a whole must be inadequate.”
Miller v. State, 702 N.E.2d 1053, 1059 (Ind. 1998) (emphasis in original),
cert. denied, 528 U.S. 1083 (2000). See also Kimmelman v. Morrison, 477
U.S. 365, 386, (1986) (“[S]ince there are countless ways to provide
effective assistance in any given case, unless consideration is given to
counsel’s overall performance, before and at trial, it will be all too easy
for a court, examining counsel’s defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was
unreasonable.”) (emphasis added) (quoting Strickland, 466 U.S. at 689).
Counsels’ isolated error here did not warrant vacation of Lambert’s
conviction in the face of the significant overall adversarial testing to
which counsel subjected the State’s case.[23]

E

Lambert argues that trial counsel were ineffective for failing to
investigate and present as a mitigating circumstance in the penalty phase
evidence that Lambert had certain mental disorders. Lambert identifies
these disorders as “organic brain dysfunction, dysthymia, and substance
dependence with antisocial and dependent personality features.”
Appellant’s Br. at 26. Lambert argues that these disorders made “it very
difficult for Lambert to function effectively both cognitively and
behaviorally. The [organic brain dysfunction is] often associated with
violent behavior. When his other impairments, depression and dysthymia,
are added to acute alcohol intoxication, Lambert was likely to have a
difficult time resisting an urge to act on impulse.” Appellant’s Br. at 40.

The post-conviction court concluded that Lambert’s trial counsel made
a reasonable strategic decision[24] not to pursue this evidence of mental
disorders because it both conflicted with counsels’ mitigation strategy and
was not credible. Appellant’s Appendix at 34, 62. The court concluded
that:
Counsel also competently presented available mitigation evidence –
Lambert’s intoxication, family evidence, his alleged good character,
his unfortunate marriage and his relationship with his son – in an
attempt to convince the jury that Lambert had had a difficult life and
had murdered the officer at a time of great stress and intoxication
but that his life was worth saving, he was capable of rehabilitation,
and he was not as dangerous as his crime suggested.

Appellant’s Appendix at 64. The post-conviction court also concluded that
this mental health evidence was “either inconsistent with, or incredible,
in light of mitigation evidence he offered” and “would have risked
bolstering the State’s theory of the case, would have undermined the
reasonable mitigation strategy adopted by trial counsel and would not have
resulted in a more lenient sentence.” Appellant’s Appendix at 34-36.

The post-conviction court made certain findings of fact from which it
concluded that trial counsels’ performance in this regard was not
deficient. To establish the existence of these disorders at the post-
conviction stage, Lambert presented the testimony of a neuropsychologist,
Dr. Edmund Haskins, and a clinical psychologist, Dr. Robert Smith.[25] The
post-conviction court found that the testimony of both witnesses was worth
little weight in light of counsel’s mitigation strategy. The post-
conviction court found that the value of Dr. Haskins’s testimony was
“questionable” because: (1) “The diagnosis conflicts with the reports of
two court-appointed psychologists who assessed Lambert’s competency to
stand trial for the stabbing of another inmate”; (2) “Neither [Haskins or
Smith] found Lambert to suffer from any mental impairment”; (3) “Dr.
Haskins admitted that his evaluation tested only Lambert’s current level of
neuropsychological functioning, not his past functioning”; and (4) “Dr.
Haskins also testified that people with personality disorders like
Lambert’s tend to be self-centered, manipulative, unaware of the effects of
their behavior on others, and go through cycles of ‘acting out’ – a
portrait that conflicts with the ‘good guy’ image the defense presented at
trial and sentencing.” The post-conviction court also gave little weight
to Dr. Smith’s testimony because (1) “Dr. Smith admitted that the results
of the alcohol and substance abuse tests depended upon Lambert’s veracity
and depended on the setting in which they were administered”; (2) “He
admitted that he failed to consult sources of information not provided to
him by Lambert’s counsel ... sources that showed Lambert was not
significantly impaired on the night of the murder”; (3) “Dr. Smith
explained that people with antisocial personality disorder have a disregard
for society’s rules and values and seldom remorse – a portrait that
conflicts with the remorseful image Lambert and his counsel sought to
present at sentencing.” Appellant’s Appendix at 25.

There was evidence to support the post-conviction court’s findings of
fact. Both doctors testified to the various mental disorders that the post-
conviction court described. The record contains evidence that supports the
post-conviction court’s determination that the doctors’ testimony relied in
large part on what Lambert and his counsel told them and conflicted with
what other mental health professionals had found during the earlier
competency evaluation. Moreover, trial counsels’ post-conviction testimony
established that their penalty phase theory relied on “the intoxication,
his history, family history, [but] primarily the intoxication.” According
to counsel, they attempted to emphasize two things during the penalty
phase: “[O]ne of our main thrusts at mitigation [was] again the level of
intoxication and the genetic alcohol profile. ... The other was to
supplement that with some explanation as to Mike’s background, what may
have led him from where he had been to where he was.”

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that reached by the post-conviction court. We
have held that counsel may make a reasonable tactical decision to
“humanize” a capital defendant as an alternate strategy to presenting
similar mental health evidence. See Conner v. State, 711 N.E.2d 1238, 12451
(Ind. 1999), cert. denied, 121 S. Ct. 81 (2000). In Conner, the defendant
argued “that trial counsel failed to conduct a reasonable penalty phase
investigation, to provide the jury with any meaningful explanation of the
crimes, and to present available mitigating evidence of the defendant’s
childhood traumas, mental disabilities, and intoxication.” Id. This Court
rejected Conner’s claim of ineffective assistance of counsel, noting that:
The record indicates that in the penalty and sentencing phases defense
counsel’s strategy was to humanize the defendant, an appropriate
strategic decision. Defense counsel presented opening and closing
arguments and testimony from several witnesses in order to present
evidence of the defendant’s background, including alcohol, drug, and
family problems, his relationships, his good qualities, his employment
history, and his relatively minor criminal history. ...

Id. (emphasis added). Cf. Meredith v. State, 679 N.E.2d 1309, 1312 (Ind.
1997) (“Appellant’s counsel had no reason ... to raise the issue of mental
capacity. In fact, arguing that Appellant lacked the mental capacity to
form the requisite intent would have been contrary to Appellant’s claim –
Appellant contended that he did not do the crime, not that he did not
intend to do the crime.”).

We find the evidence supports the post-conviction court’s finding that
counsel made a similar strategic decision here. Counsels’ penalty phase
case portrayed Lambert as an inherently decent person who committed an
admittedly horrible crime during the throes of severe intoxication and
familial stress. To this end, trial counsel called a number of witnesses,
including: (1) Lambert’s former employer, who testified that Lambert’s
crime was “out of his character” and if Lambert was not going to prison he
would rehire him despite the fact that Lambert had stolen the murder weapon
from the employer’s office; (2) Lambert’s mother, who testified about
Lambert’s violent childhood and his close relationship with his then two-
year-old son;[26] (3) the son’s former foster parent, who testified that
Lambert had an especially tender relationship with his son so that the
son’s “little eyes would light up and he was just real happy” whenever
Lambert visited (R. at 5916); (4) an expert in toxicology, who testified
that Lambert’s alcoholism and level of intoxication clouded his actions on
the night of the killing; (5) several ministers and employees from the
jails where Lambert was being held, who testified to his amiable demeanor
and caring attitude; and (6) a jailer who testified that Lambert spoke with
the teenaged nephew of a police officer to encourage the boy to stay out of
trouble.

Precedent supports the post-conviction court’s conclusion that it was
reasonable for counsel to emphasize Lambert’s character and not use or rely
on complicated mental health evidence that the post-conviction court found
to have “questionable” weight. See, e.g., Canaan v. State, 683 N.E.2d 227,
234 (Ind. 1997) (“Counsel is permitted to make strategic judgments not to
present certain types of mitigating evidence, including evidence of
defendant’s background.”); 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.”), cert. denied, 525 U.S. 1073 (1999).

Lambert counters the post-conviction court’s conclusion by arguing
that counsel’s tactical choice was not reasonable because it was not
supported by sufficient investigation. “[I]n order to make a reasonable
tactical decision, counsel must have adequately investigated the client’s
case because ‘strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.’” State v. Holmes, 728
N.E.2d 164, 172 (Ind. 2000) (quoting Strickland, 466 U.S. at 690-91),
petition for cert. filed, (U.S. Jan. 29, 2001) (No. 00-8381).

Here, as will be discussed, counsel did undertake an investigation of
Lambert’s mental health. Thus the legal question we are presented with is
whether trial counsel’s professional judgments with respect thereto
supported the extent of the investigation. Id.

Trial counsel consulted with a clinical psychologist, Dr. Robert Ten
Eyck, who testified at trial.[27] Dr. Ten Eyck administered several
psychological tests to Lambert. From one of these tests, Dr. Ten Eyck
concluded that Lambert “may be somewhat more emotionally excitable perhaps
than some other folks. And many people with that indication sometimes
behave impulsively under pressure.” (R. at 6134.) Both post-conviction
experts testified that Lambert’s brain condition would result in just such
a lack of control over impulses. Even with this information in front of
them, trial counsel opted to humanize Lambert and downplay his lack of
control. In fact, they actually enlisted Dr. Ten Eyck’s testimony to
support their mitigation theory: “He still can’t see himself as a person
who could do that if it hadn’t been for the alcohol. ... He now feels like
maybe he could pay back what happened by helping some other people realize
that what can happen when you use alcohol and drugs.”
During the post-conviction hearing, Lambert’s lead trial counsel
testified that Dr. Ten Eyck did not speak with Lambert until jury selection
had begun and that this late arrival to the case hampered their ability to
develop him as a witness. However, Dr. Ten Eyck’s penalty phase testimony
spans 42 pages of the record, the second-most of any of Lambert’s penalty
phase witnesses by a wide margin.[28] During this testimony, Dr. Ten Eyck
was able to present several medical conclusions, including that Lambert
possesses average intelligence, suffers from depression,[29] and displays
immature personality traits. He defined an immature personality as one
having a “rather one-sided view or somewhat self-centered view of
relationships in general. A tendency to be more easily aroused to feelings
of inadequacy or inferiority.” (R. at 6144.) Given that trial counsel
consulted an expert and made extensive use of that expert’s testimony, we
find that counsel made sufficient investigation here to warrant reliance on
their penalty phase theory.

IV

Lambert argues that his conviction and sentence must be vacated
because his appellate counsel were ineffective for failing to raise several
issues on direct appeal. His arguments here (some of which mirror his
claims of trial counsel ineffectiveness) are that appellate counsel should
have challenged on direct appeal (1) whether we had the authority to
reweigh his sentence; (2) the presence of uniformed, armed police officers
in the courtroom; (3) trial counsel’s failure to investigate and assert
mental disorders as a mitigating circumstance; (4) the prosecutor’s
statements during closing arguments; (5) the manner in which the jury was
instructed; (6) the admission into evidence of the videotaped demonstration
and family photographs, Appellant’s Br. at 83; and (7) the reliability of
the death sentence.

The post-conviction court made certain findings of fact from which it
concluded that trial counsel’s performance was not deficient for failing to
raise these issues. The post-conviction court found that “[i]n preparing
the appeal, counsel not only reviewed the entire record but also sifted
through the issues to identify the strongest ones. ... Counsel focused on
the issues that they believed were properly preserved.” Appellant’s
Appendix at 17.

There was evidence to support the post-conviction court’s findings of
fact. Lambert’s appellate counsel described at length their process in
choosing what issues to present on appeal. For example, Lambert’s lead
trial counsel testified that in preparing for appeal, counsel attempted to
narrow the issues down to the most likely to succeed: “I think we may be
little a less choosy [in a capital case], but certainly there is some of
that process in saying ... let’s concentrate our efforts and concentrate
the court’s attention in this area where we feel we may have a better
argument, better issue.” (R.P-C.R. at 1263.)

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that reached by the post-conviction court.
First, Lambert argues that his appellate counsel failed to contest “this
Court’s appellate sentencing.” Appellant’s Br. at 83. Because we hold
that our reweighing of the aggravating and mitigating circumstances was
proper, counsel were not ineffective for failing to contest it. Second,
Lambert argues that his appellate counsel should have argued that the trial
court’s allowing uniformed, armed police officers in the courtroom
constituted fundamental error. However, because the trial court would have
denied a motion restricting the presence of these officers and it would
have been within the discretion of the trial court to do so, appellate
counsel had no issue to raise. Third, Lambert argues that his appellate
counsel were ineffective for failing to argue that trial counsel should
have investigated and presented evidence of mental disorders as a
mitigating circumstance. Direct appeal counsel had no duty to argue
ineffective assistance of trial counsel. See Woods v. State, 701 N.E.2d
1208, 1220 (Ind. 1998), cert. denied, 528 U.S. 861 (1999). Fourth and
fifth, Lambert claims that his appellate counsel should have argued that
the prosecutor’s closing argument was improper and should have raised
certain issues related to jury instructions. As discussed, we affirmed the
post-conviction court’s finding of no ineffective assistance of trial
counsel in these respects and for essentially the same reasons affirm its
finding of no ineffective assistance of appellate counsel.

Lambert next argues that appellate counsel should have taken issue
with two exhibits the State admitted. He argues that appellate counsel
should have sought a reversal for the admission of the videotaped
demonstration of the shooting. However, we held on direct appeal that it
was not error for the trial court to admit this demonstration. Lambert v.
State, 643 N.E.2d 349, 353 (Ind. 1994). Moreover, appellate counsel
successfully convinced two justices that the demonstration should not have
been admitted into evidence. Id. at 357 (DeBruler, J., concurring in
result in part and dissenting in part).

He also argues that appellate counsel should have argued for a
reversal based on the trial court’s admission of photographs of the victim
with family members. As we determined in Part III-B, supra, these pictures
were part of the “victim impact evidence” that was discussed on direct
appeal.

Lastly, Lambert argues that his appellate counsel were ineffective
for failing to attack the reliability of the death sentence on direct
appeal. Appellant’s Supp. Br. at 6. He contends that counsel should have
argued that the sentence was unreliable because: (1) counsel failed to
investigate and present mitigation evidence in the form of Lambert’s mental
disorders; (2) the trial court relied on non-statutory aggravating
circumstances and failed to consider mitigating circumstances supported by
the record; and (3) Lambert was not present during “resentencing.” Id.

First, for the same reasons we affirmed the post-conviction court’s
conclusion that trial counsel were not ineffective for failing to present
the mental health evidence Lambert introduced in the post-conviction
proceedings, we also affirm the post-conviction court’s conclusion that
appellate counsel were not ineffective for failing to argue that the
sentence was unreliable on this ground.

Second, Lambert argues that his appellate counsel were ineffective
for failing to argue that the sentence was unreliable because the trial
court considered non-statutory aggravating circumstances and did not
consider all the mitigating evidence Lambert presented. Appellant’s Supp.
Br. at 6. However, our opinion on direct appeal operates as res judicata
as to Lambert’s claims in regards to the aggravating and mitigating
circumstances. See Lambert, 643 N.E.2d at 355. As we noted in the direct
appeal, we initially remanded so that the trial court could consider
mitigating evidence of intoxication. The trial court subsequently entered
an order that contained what we called a “lengthy and detailed evaluation
of each possible aggravator and each possible mitigator.” Id. We then
held that the trial court considered all proper mitigating circumstances
and did not consider any non-statutory aggravating circumstances. Id.

Third, Lambert argues that his appellate counsel were ineffective
because they failed to argue that his sentence was unreliable because he
was not given an opportunity to be heard at “resentencing.” Appellant’s
Supp. Br. at 6. It is unclear what Lambert means by resentencing. To the
extent this reference is to our appellate reweighing of the aggravating and
mitigating factors, we have already analyzed that claim in Part I, supra.
To the extent Lambert is referring to the revised sentencing order entered
after remand, Lambert offers no argument to support such a claim. As such,
we have no basis on which to grant relief. See Ind. Appellate Rule
8.3(A)(7) (West 1999).

V

Lambert argues that his conviction and death sentence must be vacated
as a consequence of the State’s use of the testimony of Richard Garske, who
was incarcerated in the Delaware County Jail at the same time as Lambert.
Garske testified that when he discussed the murder with Lambert, Lambert
told him: “[I]t was just a cop. Well, it was just a pig is what it was. Not
a cop.” (R. at 5739.) Lambert summarizes his argument as: (1) the State
violated the trial court’s discovery order by not disclosing Garske’s
testimony until trial; (2) the State violated Lambert’s constitutional
rights by failing to disclose any agreement it had reached with Garske in
exchange for his testimony; (3) the State violated Lambert’s constitutional
rights by failing to disclose evidence of Garkse’s attempts to obtain
substance abuse treatment in lieu of incarceration; (4) trial counsel were
ineffective for failing to seek a continuance in order to investigate
possible impeachment evidence against Garske; (5) trial and appellate
counsel were ineffective for not arguing that Garske’s testimony was
unreliable; and (6) trial and appellate counsel were ineffective for
failing to argue that the trial court judge impermissibly relied on
Garske’s statement in sentencing.

As to the first argument – that the State violated the discovery order
– we have expressed increasing concern over the failure of prosecutors to
comply with discovery orders. See, e.g., Lowrimore v. State, 728 N.E.2d
860, 867 (Ind. 2000), reh’g denied; Warren v. State, 725 N.E.2d 828, 832
(Ind. 2000); Goodner v. State, 714 N.E.2d 638, 642 (Ind. 1999); Williams v.
State, 714 N.E.2d 644 (Ind. 1999), cert. denied, 528 U.S. 1170 (2000). But
this claim was clearly available on direct appeal; it may not be litigated
here.[30] Lambert’s related claim that the “State’s failure to list Garske
as a witness contravened Lambert’s right of confrontation and cross-
examination” was also available on direct appeal and is not available here.
Appellant’s Br. at 46.

Second, Lambert argues that the State had a constitutional obligation
to disclose any agreement it struck with Garske in exchange for testimony.
He argues that the State’s failure to do so violated Brady v. Maryland,
which requires the State to disclose material, exculpatory evidence in its
possession. 373 U.S. 83, 87 (1963).

The post-conviction court found that “there was no sentence reduction
agreement between the State and Garske when Garske testified.” Appellant’s
Appendix at 41. Our review of the record indicates that there was evidence
to support the post-conviction court’s finding.

To establish the existence of an agreement, Lambert pointed to
Garske’s release from prison pursuant to a sentence modification signed by
the prosecutor just six days after trial. He also cited a sworn affidavit
signed by Garske’s attorney stating that the prosecutor advised him
that if Mr. Garske provided testimony at Mr. Lambert’s capital trial
consistent with the information he provided, the State would be
receptive to a second Petition for Modification of Sentence. I had the
clear impression that if Mr. Garske provided the testimony desired by
the State, his sentence would be reduced, or that he would be released
from custody. I advised Mr. Garske of my belief that he would secure
sentencing relief in exchange for his testimony. It was my
understanding that Mr. Garske shared that belief. ... Shortly after
Mr. Garske testified for the State at Mr. Lambert’s trial, the
[prosecutor] advised me to file a second Petition for Modification.

(R.P-C.R. at 1365-66.)[31] This petition was granted and Garske was
released on November 22, 1991. Garske never testified at the post-
conviction stage.

The State countered Lambert’s argument by pointing to the prosecutor’s
post-conviction affidavit stating that
At no time did the undersigned ... in any fashion indicate to anyone
the State’s intention to condition any action upon Mr. Garske’s past
or proposed Petition to Modify Sentence upon his actual or anticipated
testimony in this cause. To the contrary, both Mr. Garske and his
counsel were specifically advised ... that no such promise or
inference could or would be made by the State. At no time did the
undersigned advise [Garske’s attorney or Garske] that the State would
be receptive to a petition for modification of the sentence of Mr.
Garske in return for any testimony.

(R.P-C.R at 2094.) The prosecutor similarly testified at a deposition that
prior to trial he “admonish[ed Garske that he was not] making any promises,
any deals in exchange for his testimony.” (R.P-C.R. at 2127.) The State
also introduced an affidavit from Garske’s attorney that stated
I do not believe that there was any explicit or confirmed promise by
the [prosecutor] to agree to a sentence reduction in exchange for
Garske’s testimony ... . but I felt based on my discussion with [the
prosecutor] that the State would agree to a sentence reduction for
Garske if he testified as expected by the State.

(R.P-C.R. at 2097.)

The evidence on this point was in conflict and it was up to the post-
conviction judge to sort out the credibility of these witnesses. See State
v. McCraney, 719 N.E.2d 1187, 1191 (Ind. 1999) (“Whether a witness’
testimony at a postconviction hearing is worthy of credit is a factual
determination to be made by the trial judge who has the opportunity to see
and hear the witness testify.”). “We examine only the probative evidence
and reasonable inferences that support the post-conviction court’s
determination and we neither reweigh the evidence nor judge the credibility
of witnesses.” Bivins v. State, 735 N.E.2d 1116, 1122 (Ind. 2000). The
post-conviction court evaluated this evidence and determined that “there
was no sentence reduction agreement between the State and Garske when
Garske testified.” Appellant’s Appendix at 41. The post-conviction court
could reasonably have placed much weight on the disinterested testimony of
Garske’s attorney, who stated that he had a “clear impression” that Garske
would be released if he testified (R.P-C.R. at 1365-66) but understood
“that there was [no] explicit or confirmed promise by the [prosecutor] to
agree to a sentence reduction in exchange for Garske’s testimony.” (R.P-
C.R. at 2097.)

Without an explicit agreement, Garske’s unilateral expectation of
sentence relief does not warrant reversal on Brady grounds. “When a witness
hopes for leniency in exchange for his testimony and the State neither
confirms nor denies that hope, there is no concrete agreement requiring
disclosure. The witness’s expectations, coupled with evidence of a deal
after the in-court testimony of the witness, are insufficient to require
that a disclosure be made.” Rubalcada v. State, 731 N.E.2d 1015, 1023-24
(Ind. 2000). See also Abbott v. State, 535 N.E.2d 1169, 1171-72 (Ind.
1989) (“[W]e cannot agree with appellant’s conjecture that because Hinman
was offered a plea agreement after trial, one existed before trial. We
have held that expectations coupled with evidence that a prosecutor-
accomplice/witness deal may have been consummated after the in-court
testimony is insufficient to bring the case within the … rule [of Newman v.
State, 263 Ind. 569, 334 N.E.2d 684 (1975).]”).

Third, Lambert argues that the prosecutor should have disclosed
possible impeachment evidence in the form of Garske’s application for
substance abuse treatment in lieu of incarceration. Specifically, a report
issued in response to this application stated that Garske’s “interview
behavior was manipulative, at times, as evidenced by conflicting
information regarding his alcohol and drug use history” (R.P-C.R. at 1216)
and that he had “difficulty giving accurate answers.” (Id.) The post-
conviction court concluded that “[a]ny evidence of Garske’s rejection from
a substance abuse treatment program or his general character would not have
been admissible as impeachment.” Appellant’s Appendix at 41.

Evidence Rule 608(b) states that “[f]or the purpose of attacking or
supporting the witness’s credibility, other than conviction of a crime as
provided in Rule 609, specific instances may not be inquired into or proven
by intrinsic evidence.” (emphasis added). See generally Pierce v. State,
640 N.E.2d 730, 732 (Ind. Ct. App. 1994) (“The rule [608(b)] prohibits
impeachment of a witness by evidence of prior bad acts unless the act is an
‘infamous’ crime or a crime probative of credibility. The reason for the
‘Bad Acts’ rule is to prevent the jury from inferring that the witness must
be a liar merely because he has done bad things.”), transfer denied.[32]
The application and report describe a prior bad act by showing that Garske
had previously lied in order to reduce his sentence. Lambert argues that
his trial counsel should have offered this prior bad act to show that
because Garske has previously attempted to use deceit to reduce a sentence,
he was likely to do so again. Rule 608(b) prohibits using prior bad acts
to attack credibility in this manner, and the post-conviction court was
correct to conclude that even had Lambert had this evidence, he could not
have introduced it.

The fact that such evidence would have been inadmissible under the
Rule of Evidence does not necessarily resolve the Brady claim. But a Brady
violation will warrant a reversal “only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the
outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985). The evidence
from these treatment records only shows that Garske might have shaded some
of his statements during the intake interview for the prior offense. We
are of the opinion that this minor inroad into Garske’s credibility would
not have overriden the clear evidence of Lambert’s guilt in this case. See
discussion at Part III-D, supra. Moreover, trial counsel had the
opportunity to interview Garske prior to his testimony. They used what
they learned from this interview to cross-examine Garske on the fact he was
currently incarcerated for burglary and had committed other burglaries in
the past.
Fourth, Lambert argues that his trial counsel were ineffective for
failing to seek a continuance when the State offered the Garske testimony
at trial. Lambert argues that in light of the fact that Garske’s testimony
was not disclosed in advance of trial as required by the court’s discovery
order, counsel should have sought a continuance and investigated Garske.
Appellant’s Supp. Br. at 4-5. He argues that this investigation would have
uncovered impeachment evidence in the form of an agreement with the
prosecutor and the records pertaining to Garske’s application for substance
abuse treatment in lieu of incarceration. Id. at 4. It is true that the
proper course of action when faced with a discovery violation is to seek a
continuance. See Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000); Jenkins
v. State, 627 N.E.2d 789, 799 (Ind. 1993). However, Lambert suffered no
prejudice from his counsel’s failure to seek a continuance because there
would have been no such impeachment evidence to present to the jury. The
post-conviction court found that no agreement existed and we have already
held that the records Lambert cites could not have been admitted into
evidence.

Fifth, Lambert argues that Garske’s testimony was “false and
misleading” and unreliable and that trial and appellate counsel were
ineffective for failing to argue that this testimony was unreliable.
Appellant’s Br. at 50, Appellant’s Supp. Br. at 4-5. However, the post-
conviction court specifically found that the testimony was “neither false
nor misleading” and found it to be reliable. Appellant’s Appendix at 40,
42. Our review of the record indicates that there was evidence to support
the post-conviction court’s findings of fact. As with the sentence
reduction agreement, it was up to the post-conviction judge to make this
credibility determination. See McCraney, 719 N.E.2d at 1191.

Finally, Lambert asserts that trial and appellate counsel were
ineffective for failing to argue that the trial court judge impermissibly
relied on Garske’s testimony when weighing the aggravating and mitigating
circumstances. Appellant’s Supp. Br. at 5. Lambert cites the judge’s
reference to Garske’s testimony during sentencing to support his claim that
he would have received a different sentence had counsel exposed Garske’s
unreliability at either the trial or sentencing stage. However, we have
held that the post-conviction court could determine that Garske was
reliable. In any event, we believe that any sentencing error resulting
from the judge’s use of Garske’s testimony was rectified by our reweighing
of the aggravating and mitigating factors in our opinion on rehearing. See
Lambert v. State, 675 N.E.2d 1060, 1065 (Ind. 1996).

VI

As we mentioned at the outset of this opinion, Lambert phrased much
of his argument in terms of trial court error. These claims, some of which
have been discussed in other contexts above, relate to: (1) the presence of
uniformed, armed police officers in the courtroom; (2) the admissibility of
the videotaped demonstration and photographs of the victim; (3) comments by
the prosecutor in closing argument; (4) the manner in which the jury was
instructed; (5) the presence of mental disorders as a mitigating
circumstance in the penalty phase; and (6) the reliability of the death
sentence in light of the aggravating and mitigating circumstances. As we
previously noted, such freestanding claims of trial court error are
unavailable on post-conviction review.

Conclusion

We affirm the post-conviction court’s denial of Lambert’s petition
for post-conviction relief.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] See Ind. Code § 35-50-2-3 (Supp.1990).

[2] See id. § 35-50-2-9.
[3] The post-conviction court found that “claims of error committed by
the Supreme Court are not even cognizable in a post-conviction relief
proceeding.” Appellant’s App. at 57. The court noted that Lambert should
have instead sought rehearing or petitioned the federal courts for a writ
of habeas corpus or writ of certiorari. Alternatively, the court found
that Lambert’s specific claims were barred by res judicata because of the
earlier rehearing opinion.

[4] The propriety of reweighing the aggravating and mitigating
circumstances was questioned by one member of the Court in the earlier
opinion. See Lambert, 675 N.E.2d at 1067 (Boehm, J., dissenting). But cf.
Matheney v. State, 688 N.E.2d 883, 911 (Ind. 1997) (Boehm, J., concurring)
(“I do not believe I should refrain from participation in the reweighing
exercise directed by the majority on the ground that I would not have
designed the process to include it. For that reason I concur in all
portions of the opinion [and] concur in result as to part III. ... Having
explained this position, I do not expect to find it necessary to reiterate
it in future cases ... .”).

[5] Indiana Criminal Rule 12(B) is to the same effect:
In felony and misdemeanor cases, the state or defendant may
request a change of judge for bias or prejudice. The party shall
timely file an affidavit that the judge has a personal bias or
prejudice against the state or defendant. The affidavit shall state
the facts and the reasons for the belief that such bias or prejudice
exists, and shall be accompanied by a certificate from the attorney of
record that the attorney in good faith believes that the historical
facts recited in the affidavit are true. The request shall be granted
if the historical facts recited in the affidavit support a rational
inference of bias or prejudice.
We treat the prejudice and bias analysis under each the same.
[6] The federal rule states that:
Whenever a party to any proceeding in a district court makes and
files a timely and sufficient affidavit that the judge before whom the
matter is pending has a personal bias or prejudice either against him
or in favor of any adverse party, such judge shall proceed no further
therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists ... .
28 U.S.C. § 144 (1995). See also 28 U.S.C. §§ 455(a) and (b) (1995).

[7] See also Smith v. State, 613 N.E.2d 412, 414 (Ind.1993) (finding
no rational inference of bias or prejudice where judge had received adverse
publicity for granting post-conviction relief in a related case); Jackson
v. State, 643 N.E.2d 905, 907 (Ind. Ct. App. 1994) (finding no rational
inference of bias or prejudice where judge had previously revoked the
petitioner’s probation in a separate matter when the judge served as a
probation officer), transfer denied.
[8] A judge does not show bias by recognizing the emotional, human
elements of a case. See, e.g., Smith v. State, 718 N.E.2d 794, 802 (Ind.
Ct. App. 1999) (“Undisputedly, the trial judge acknowledged the inevitable
human reaction to a situation where a very young child dies of preventable
causes while in her mother’s care. In doing so, Judge Craney simply
revealed her humanity, a quality which each member of the judiciary and bar
should respect. Such a revelation does not rise to the level of bias or
prejudice.”), transfer denied.
[9] The DeBruler dissent was adopted in Whitehead, 626 N.E.2d at 803.

[10] Lambert raised most of these same issues as freestanding claims
of trial court error. As freestanding claims of trial court error, they
must be raised on direct appeal and are not available in collateral
proceedings. See introduction to Discussion and Part VI infra.

[11] See also Canaan v. State, 683 N.E.2d 227, 231 (Ind.1997)
(“Judicial scrutiny of counsel’s performance is highly deferential; we
eschew second-guessing the propriety of trial counsel’s tactics.”); Potter
v. State, 684 N.E.2d 1127, 1133 (Ind.1997) (“A reviewing court must grant
the trial attorney significant deference in choosing a strategy which, at
the time and under the circumstances, he or she deems best.”).

[12] Lambert phrases much of this argument in terms of his attorneys’
failure to cite relevant authority to support his motion for a change of
venue. However, as we noted on direct appeal, “[t]here is no evidence in
this record to support appellant’s claim that the trial court erred in
denying his motion for change of venue or change of venire.” Lambert v.
State, 643 N.E.2d 349, 352 (Ind. 1994). Since we have already held that
Lambert was not entitled to a change of venue, he cannot now claim that his
counsel were ineffective for failing to obtain such a change.
[13] We also recognize that an objection to the presence of the
officers would cut against the general principle that court proceedings
should be open to all members of the public. See, e.g., Ind. Const. art.
I, § 13 (“In all criminal prosecutions, the accused shall have the right to
a public trial ... .”), Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997)
(“The right to a public trial has long been recognized as a fundamental
right of the accused. ... It protects the accused by allowing the public to
assess the fairness of the proceedings. In addition, it encourages
witnesses to come forward, and discourages perjury.”).

[14] Cf. Timberlake v. State, 690 N.E.2d 243, 254 (Ind. 1997)
(“[D]efendant argues that the prosecutor committed misconduct during
opening argument by stating that the shooting was a ‘mean, senseless,
intentional act, the act of a man who hated authority, who hated the
uniform and everything it stood for’”; “In each alleged situation, the
prosecutor made accurate and true statements based upon the evidence and
the situation. The prosecutor never implied that he had knowledge which
the jury did not, nor did he stray from the evidence and reasonable
interpretations derived therefrom. There was no misconduct.”), cert
denied, 525 U.S. 1073 (1999).

[15] This disputed testimony will be discussed in detail infra.
[16] Defense counsel’s penalty phase argument also noted that Lambert
had laughed at times during the six-day trial.
[17] Charlton v. State, 702 N.E.2d 1045, 1051 (Ind. 1998), reh’g
denied.

[18] Defense counsel attempted to defuse these statements during their
own closing:
I agree with Mr. Reed. Police officers. I have a high – very,
very, high regard for. They do get out there, they put their lives on
the line for people like us. And we’ve got a tragedy. We lost one, a
very good one.
Mike deserves to be punished for it. Oh yeah. Does he need to
be killed? Is that what it takes?
(R. at 5974.)

[19] During the penalty phase arguments, defense counsel stated that
“each of one of you in your own heart is going to have to weigh mitigation
against that aggravator and come to your own individualized decision as to
whether or not that aggravator so outweighs the mitigators that it
justifies the taking of a life.” (R. at 5974) (emphasis added). The
instructions further told the jury to “consider both aggravating and
mitigating circumstances and recommend whether the death penalty should be
imposed.” (R. at 5982-83) (emphasis added).
[20] Lambert also argues that his counsel were ineffective for failing
to obtain an instruction on voluntary manslaughter. However, we held on
direct appeal that Lambert was not entitled to this instruction. Lambert v.
State, 643 N.E.2d 349, 354 (Ind. 1994) (“The trial court did not err in
refusing to give a voluntary manslaughter instruction.”). Because Lambert
was not entitled to the instruction, his counsel were not ineffective for
failing to obtain it.

[21] This disputed testimony will be discussed in detail infra.

[22] Moreover, counsel’s cross-examination elicited the fact that the
officers had not consumed alcohol prior to videotaping the demonstration,
thereby putting this point in front of the jury.
[23] We have upheld convictions in the face of nearly identical
instructions. See Turner v. State, 682 N.E.2d 491, 497 (Ind. 1997). Here,
as in Turner, “[p]reliminary and final instructions were given that
mandated the presumption of innocence. Additionally, instructions
explaining that the State had the burden to prove its case beyond a
reasonable doubt were given. In context, the presumption of innocence and
the prosecutor’s burden were explained, in spite of the disapproved
instruction.” Id. See also Sevits v. State, 651 N.E.2d 278, 282 (Ind. Ct.
App. 1995), trans. denied (“We conclude that the use of this instruction
did not rise to the level of fundamental error. We note further that the
record indicates that the jury was given repeated instructions on the
State’s burden of proof and Sevits’ presumption of innocence until proven
guilty. Sevits was not unduly prejudiced, and there was no reversible
error.”).

[24] During the post-conviction hearing, both counsel denied making a
strategic decision not to pursue such evidence.
[25] The court found that Dr. Haskins diagnosed Lambert as suffering
from “a deficiency in executive frontal lobe impairment” which caused him
to “have problems with impulse control, planning, organization of tasks,
solving problems and understanding the consequences of their actions.”
Appellant’s Appendix at 21. The court also found that Dr. Haskins
diagnosed Lambert as suffering from dysthymia, “a type of chronic, low-
level depression.” Appellant’s Appendix at 21. The court then found that
Dr. Smith “retrospectively diagnosed Lambert with dysthymia, frontal lobe
impairment and antisocial personality disorder” as well as “alcohol and
substance addiction.” Appellant’s Appendix at 24.
[26] Trial counsel also introduced a photograph of Lambert’s son.

[27] Dr. Ten Eyck is a clinical psychologist who had practiced for
over 20 years at the time of Lambert’s trial. He was an associate
professor at the Indiana University School of Medicine and was the
coordinator of a child inpatient program. He held both a master’s and a
doctoral degree in clinical psychology, had obtained several fellowships,
and was listed in the National Register of Health Service Providers in
Psychology.

[28] Lambert’s own sentencing hearing testimony was the defense’s most
lengthy.

[29] Dr. Ten Eyck’s testimony that Lambert suffered from “reactive
depression” (R. at 6143) shows that trial counsel did in fact present
evidence of depression during the penalty phase, albeit by using slightly
different scientific language then that used in the post-conviction court.
While Dr. Ten Eyck may not have used the technical word “dysthymia,”
whatever value contained in the post-conviction testimony describing
“moderate depression” and sadness was already put into evidence. The same
can be said for substance abuse, as the defense’s toxicology expert
testified that Lambert “fit the profile of a genetic alcoholic.” (R. at
6053.)

[30] Lambert’s claim that trial counsel were ineffective in this
regard will be discussed infra.

[31] The prosecutor testified at his deposition that he told Garske’s
attorney to file this petition only after the attorney “called me up and
generally wanted to know if there was anything he could do to help Mr.
Garske with his sentence ... .” (R.P-C.R. at 2128.) (emphasis added). The
prosecutor then testified that he did not recall speaking with the attorney
prior to Garske’s testimony.
[32] Section (a) of the same rule allows a general attack on a
witness’s credibility through opinion or reputation evidence. Ind. Evid. R.
608(a).