ATTORNEY FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
Barbara S. Blackman
Laura L. Volk
Steven H. Schutte
Deputy Public Defenders
ATTORNEYS FOR APPELLEE
Karen Freeman-Wilson
Attorney General of Indiana
Thomas D. Perkins
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
VINCENT J. PROWELL, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 82S00-9803-PD-138
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt, Judge
Cause No. 82C01-9305-CF-313
__________________________________________________________________
ON PETITION FOR POSTCONVICTION RELIEF
__________________________________________________________________
January 11, 2001
BOEHM, Justice.
Vincent Prowell pleaded guilty to the 1993 murders of Denise Powers
and Chris Fillbright and was sentenced to death. Prowell appeals the
denial of his petition for postconviction relief and raises seven issues,
which we restate as three: (1) Prowell was not afforded full and fair
postconviction proceedings; (2) trial counsel was ineffective; and (3)
Prowell’s death sentence is cruel and unusual punishment in violation of
the constitutions of Indiana and the United States.
We conclude that Prowell received ineffective assistance of counsel at
both the guilt and penalty phases and that the postconviction court’s
findings to the contrary are clearly erroneous. We therefore reverse the
denial of postconviction relief and remand with instructions to vacate
Prowell’s guilty plea, rescind his death sentence, and order a new trial.
Factual and Procedural Background
In November 1992, twenty-eight-year-old Vincent Prowell moved from
Chicago to Evansville to live with his mother, Karen Johnson, and her
boyfriend, Ed Cooper. Although Prowell had never seen or been treated by a
mental health professional, those who spent time with him suspected that
something was “seriously wrong” with Prowell. A number of people heard
Prowell engage in conversations with himself while alone in his bedroom,
talk to the television set when it was turned off, respond to questions
with odd or indirect answers, drift off on incomprehensible conversational
tangents, and appear fearful of and threatened by others.[1]
In April 1993, Johnson and Cooper were arrested on drug charges,
convicted, and sentenced to prison terms. Prowell, who was unusually
dependent on his mother and had never before lived alone, moved into an
apartment that Cooper had rented for him. Prowell’s next door neighbor in
the apartment complex was Powers.
On May 23, 1993, Powers sat in her automobile waiting for Fillbright.
As Fillbright approached the driver’s side door, Prowell shot him at close
range in the back of the head. Prowell then shot Powers twice through the
car window, piercing her lung and heart. An eyewitness identified Prowell
as the shooter. Prowell v. State, 687 N.E.2d 563, 564 (Ind. 1997)
A few hours later, Prowell was apprehended by police in Benton
County, Indiana and confessed to both murders. Prowell also claimed that
earlier that evening he had run into Fillbright, whom he had never met
before, near the apartment complex’s mailboxes. He told police that
Fillbright had been hostile towards him for no reason, “acting all kinds of
crazy” towards Prowell, with a “military look in his eye,” and slinging
racial slurs and “insinuation.” In his confession, Prowell told police
that he felt “threatened” by Fillbright and responded by getting his gun
from his apartment and confronting Fillbright in the parking lot. Neighbor
Joann Rose testified that Prowell approached Fillbright, shot him once from
behind without any exchange of words, and then “pivoted” around to shoot
twice through the passenger window.
One week after the murders, salaried, part-time public defenders
Dennis Vowels and Michael Danks were appointed to represent Prowell, and a
few weeks later, the State filed notice of its intent to seek the death
penalty. In mid-July 1993, trial was set for January 31, 1994, with jury
selection to begin on January 27. On December 22, 1993, six weeks before
the trial was scheduled to begin, Vowels attempted to obtain a plea bargain
in exchange for two consecutive sixty-year terms. The prosecutor refused
the offer. On January 14, 1994, Prowell pleaded guilty, without a plea
agreement, to the murders of Powers and Fillbright. The court accepted the
plea and set sentencing for March 3, 1994.
A week after the plea hearing, Vowels for the first time hired
mitigation investigator Steve Brock. On the recommendation of Brock and
Paula Sites of the Indiana Public Defender Council, Vowels asked for a
continuance on February 22, 1994, to permit Brock to conduct a mitigation
investigation. The court postponed sentencing for six weeks to April 20,
1994. On March 30, 1994, a full five weeks after obtaining the
continuance, Vowels met for the first time with psychologist Dr. Joel Dill
and asked him to evaluate Prowell.
At the sentencing hearing, Dill testified that Prowell suffered from
paranoid personality disorder, a relatively minor mental disorder in
comparison to more severe forms of paranoia.[2] Several family members and
the jail chaplain also testified on Prowell’s behalf. The trial court
found that Prowell did not commit the murders under extreme mental disease
or defect and sentenced him to death. The court stated that it:
has been at a loss to find even a hint of a reason as to why the
Defendant would commit what is no less than a double assassination or
execution. The explanation given in one of Defendant’s statements
indicates racial slurs were made by Mr. Filbright to the Defendant. I
have trouble with this explanation for two reasons. One, words no
matter how hateful do not justify murder, and two, evidence adduced at
the Sentencing Hearing showed through pictures that Mr. Filbright was
serving as an Army Officer in Operation Desert Storm, and had many
Afro-American friends in the Service. Another statement revealed that
the Defendant believed that Mr. Filbright was about to pull a gun. I
do not believe this, as Mr. Filbright was shot in the back of the head
execution style at close range. The Defendant also stated he believed
Ms. Powers was attempting to pull something from her purse. All the
physical evidence shows that Ms. Powers was shot in the back of the
head, in the side of her face as she was attempting to get out of her
car. The Defendant’s explanation for shooting Ms. Powers is just not
believable. There is no explanation for these atrocious and senseless
acts. If we could discern a motive, maybe we could all better accept
these tragedies.
On direct appeal, this Court affirmed the trial court’s judgment and the
imposition of the death sentence. Prowell, 687 N.E.2d at 570.
In postconviction proceedings, Prowell contended that his Sixth
Amendment right to effective counsel was violated. His principal
contention was that his guilty plea was entered before counsel had taken a
number of essential steps to establish that, although Prowell undisputedly
killed the two victims, the death penalty was inappropriate in view of
Prowell’s demonstrably severely impaired mental health. The postconviction
court denied relief and this appeal ensued.
Standard and Extent of Review
Prowell bore the burden of establishing the grounds for relief by a
preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Because he
is now appealing from a negative judgment, to the extent his appeal turns
on factual issues, Prowell must convince this Court that the evidence as a
whole leads unerringly and unmistakably to a decision opposite that reached
by the postconviction court. Harrison v. State, 707 N.E.2d 767, 773 (Ind.
1999) (citing Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995)). We
will reverse only upon a showing of “clear error”—that which leaves us with
a definite and firm conviction that a mistake has been made. Spranger, 650
N.E.2d at 1119.
I. The Postconviction Court Findings
Prowell contends that a number of factual findings by the
postconviction court were clearly erroneous. He notes that the “Findings
of Fact, Conclusions of Law and Judgment on Petition for Post-Conviction
Relief” issued by the postconviction court on July 7, 1999, are a virtually
verbatim copy of the findings proposed by the State on June 21, 1999.[3]
The conclusions of law were also as the State proposed, except for the
deletion of a conclusion that Prowell had waived various claims by failing
to raise the issues on direct appeal. That conclusion was incorrect in
light of the then-recent decision in Woods v. State, 701 N.E.2d 1208, 1210
(Ind. 1998) (holding that a Sixth Amendment claim of ineffective assistance
of trial counsel may be presented for the first time in a petition for
postconviction relief).
It is not uncommon for a trial court to enter findings that are
verbatim reproductions of submissions by the prevailing party. The trial
courts of this state are faced with an enormous volume of cases and few
have the law clerks and other resources that would be available in a more
perfect world to help craft more elegant trial court findings and legal
reasoning. We recognize that the need to keep the docket moving is
properly a high priority of our trial bench. For this reason, we do not
prohibit the practice of adopting a party’s proposed findings. But when
this occurs, there is an inevitable erosion of the confidence of an
appellate court that the findings reflect the considered judgment of the
trial court. This is particularly true when the issues in the case turn
less on the credibility of witnesses than on the inferences to be drawn
from the facts and the legal effect of essentially unchallenged testimony.
For the reasons explained below, most of the statements in the findings of
fact and conclusions of law are correct if viewed in isolation, but many
are presented out of context and, as a result, are significantly
misleading. We find some of the critical findings of the postconviction
court to be clearly erroneous as that term is used in Trial Rule 52(A).
A. The Postconviction Testimony
In preparation for the postconviction relief hearing, Prowell was
examined by Dr. Thomas Liffick, a psychiatrist and Medical Director of the
Southwestern Indiana Mental Health Center in Evansville, and Dr. Rahn
Bailey, a psychiatrist and Director of the Division of Law and Psychiatry
at the University of Texas. Based on clinical interviews, collateral
source information, and social history records, both Liffick and Bailey
diagnosed Prowell as presently suffering, and suffering at the time of the
murders, from chronic schizophrenia.[4] At the postconviction relief
hearing, Bailey testified that the murders were “highly likely to be
directly related to the significant influence of the most severe symptoms
[of schizophrenia],” including paranoia, hallucinations, delusional
thought, and cognitive disorganization, and that the nexus between the
homicides and Prowell’s state of mind met Indiana’s statutory criteria for
mitigation.[5] When Liffick asked Prowell if he knew the victims, Prowell
replied:
He thought I was somebody come to visit her; they knew about my
mother; everybody knew about it. Everything that goes on is tax free.
He let me know he knew who I was. I wasn’t the right element by
saying two or three words. A lot of things in the system won’t be
changed. Deformity does exist. There’s a lot of scientific crap in
it. It was a mental confrontation. I would say insinuation, but I
can’t really.
Liffick agreed with Bailey that it was highly likely that Prowell acted
under paranoid delusions at the time of the shootings. Despite their
testimony, the postconviction relief court found that Prowell’s claims were
“without merit” and denied his petition for postconviction relief.
B. The Findings of Fact
Referring to Bailey’s testimony, the findings of fact state: “[W]hile
Dr. Dill diagnosed Petitioner as suffering from paranoid personality
disorder with schizoid tendencies at sentencing, that diagnosis was the
least restrictive, therefore a reasonable diagnosis under the
circumstances.” Although this sentence may be literally correct, a review
of Bailey’s testimony on this point makes it clear that it is quite
misleading. Bailey testified that there are three possible paranoid
diagnoses. The mildest of the three is paranoid personality disorder.
Paranoid delusional disorder is more severe and paranoid schizophrenia is
the most severe of the three diagnoses. The major difference among the
three diagnoses is the duration of the characteristic symptoms.
Psychiatrists and psychologists are trained, Bailey testified, to “always
give the diagnosis of least intensity when there are varying diagnoses that
are all consistent.” “By definition,” Bailey testified,
you cannot diagnose schizophrenia if the person has not had symptoms
for six months or greater. So, no matter how sick they look when you
see them, if you don’t have access to records . . . that show that he
exhibited those kinds of symptoms more than six months ago, you know,
you are precluded, based on our training, from diagnosing
schizophrenia.
Because of the paucity of information provided to Dill before the
sentencing hearing, specifically records and access to Prowell’s family and
friends who could establish the duration of Prowell’s symptoms, Bailey
testified that Dill could not have reasonably diagnosed paranoid
schizophrenia at that time. It was the “circumstances” that made Dill’s
diagnosis “reasonable under the circumstances.” This is a complicated way
of saying that Prowell’s counsel did not supply Dill with the readily-
obtainable facts to establish the duration of Prowell’s illness. The
failure of Prowell’s lawyers to provide their single mental health expert
with the depth and volume of information necessary for a correct diagnosis
is at the root of Prowell’s claim of ineffective assistance of counsel.
The findings as to Bailey’s testimony regarding Dill’s original
diagnosis of paranoid personality disorder and Bailey’s own diagnosis of
paranoid schizophrenia are equally flawed. The findings of fact state
that, according to Bailey, “[t]he two diagnoses are very similar.” Again,
Bailey did make this statement, but, taken out of context, it stands
Bailey’s testimony on its head. The finding is predicated on the following
exchange, which occurred during the State’s cross-examination of Bailey:
Q. Would you characterize the paranoid personality disorder in
contrast to paranoid schizophrenia, are those two diagnoses more
similar or more different from each other?
A. I think they are very similar. They are two of the only three
paranoid diagnoses in the textbook when you have paranoia, you can
follow up under this diagnostic category. The big issue is
intensity.
Bailey went on to explain that, although both diagnoses share the symptom
of paranoia, the difference in intensity is important because it indicates
how significantly a person’s functionality and thought processes are
affected. On re-direct:
Q. Would you tell us again whether there is a difference between a
thought disorder and a personality disorder and if so, what?
A. There is a tremendous difference. Axis I disorders are a big, heavy,
primary stuff that you see in psychiatry, so, schizophrenia,
schizoaffective disorders, major depression, and bi-polar disorder,
anxiety. Those are the big guys. . . . Those are psychiatric
patients. Personality disorders are considered very minor in my
field. . . . If you spend this kind of time with somebody, read all
of his records, talk to all of his collateral sources and then you say
personality disorder versus schizophrenia, that is big. You are not
splitting hairs. That is a big, again, monumental difference.
The findings of fact also mischaracterize Dill’s testimony. Although
Dill did testify that “he considered both paranoid personality disorder and
paranoid schizophrenia before making his diagnosis,” he also testified that
he had to reject paranoid schizophrenia because Prowell did not admit to
delusions or hallucinations. The findings of fact state that “[i]t was
Petitioner’s failure to admit to hallucinations that partially prevented
Dr. Dill from diagnosing Petitioner with paranoid schizophrenia.” This is
reasoning straight out of Catch-22. Just as Yossarian’s insane
determination to stop flying on bombing raids proved his sanity, the State
contends that if Prowell suffers from a disorder that causes him to deny
its symptoms, he must be sane.
The expert testimony cited in support of this view in fact rejects it.
The thrust of Dill’s testimony is that a competent professional armed with
available facts would penetrate Prowell’s denials. Dill testified that in
his three short interviews with Prowell, he found him to be “guarded” and
unwilling to share much information, a characteristic to be expected of
persons suffering from paranoid schizophrenia. He also testified that he
would have preferred to interview Prowell for an extended period of time in
a clinical setting where he could have built trust with Prowell and
conducted various tests. That option was unavailable to him because he was
hired by Prowell’s counsel on March 30, 1994, and he interviewed Prowell on
April 11, 16, and 17, 1994. The last interview was just three days before
Dill testified at Prowell’s April 20 sentencing hearing. Nor did Prowell’s
counsel present Dill with any information from collateral sources about
Prowell’s longstanding delusions or hallucinations.
The findings of fact state that “Dr. Liffick noted that each of the
mental health professionals at the post conviction hearing had diagnosed
Petitioner slightly differently and compared it to arguing about a shade of
a particular color.” This is clearly erroneous to the extent that it
implies that Liffick was comparing his own diagnosis of undifferentiated
schizophrenia with both Bailey’s diagnosis of paranoid schizophrenia and
Dill’s earlier diagnosis of paranoid personality disorder. In fact,
Liffick testified only that there was very little difference in a clinical
sense between Bailey’s diagnosis (paranoid schizophrenia) and his own
(undifferentiated schizophrenia). When questioned about the distinction
between Dill’s diagnosis of paranoid personality disorder, given to the
trial court, and the postconviction diagnoses of schizophrenia, Liffick
replied:
There is a much more significant difference between paranoid
personality disorder and schizophrenia than there is between any of
the subtypes of schizophrenia, so to say that, at that time, he had a
paranoid personality disorder was a misdiagnosis. It actually put him
in the wrong category of illness to a very significant degree. The
differences I’ve already said between paranoid schizophrenia and
undifferentiated schizophrenia is miniscule in comparison.
The postconviction court found that “[c]ounsel sought to employ a
mental health expert sufficiently in advance of the sentencing hearing.”[6]
In fact, Dill testified, and the billing records from Vowels confirm, that
he was first contacted by Prowell’s lawyers on March 30, 1994, three weeks
after the date of the original sentencing hearing and three weeks before
the postponed sentencing hearing. Due to these time constraints, Dill was
unable to interview Prowell under normal conditions or at any length. Nor
could he establish a relationship necessary to elicit information or
collect the full range of records and information from collateral sources
necessary for a proper diagnosis. The finding that Dill was employed
“sufficiently in advance of the sentencing hearing” is clearly erroneous in
light of the evidence presented to the postconviction court.
The findings of fact make no reference to the postconviction court’s
assessment of the credibility of Dill, Bailey, or Liffick. It is quite
clear from the testimony of all three doctors that paranoid or
undifferentiated schizophrenia is substantially different from paranoid
personality disorder. In light of this fact, the postconviction court’s
finding that the evidence presented to the postconviction court was simply
“more of the same” as that presented to the sentencing court is clearly
erroneous.
The postconviction court’s findings and conclusions also stated that:
While Petitioner now offers additional (and some of the same) family
members and expert witnesses, the substance of their testimony is
simply more of the same evidence presented at the sentencing hearing.
Save the mere quantity of the witnesses, trial counsel put on
substantially the same mitigation case developed and presented by
postconviction counsel more than five years after the sentencing
hearing. That is to say, trial counsel developed the very contours of
the mitigation theory and defense presented by postconviction counsel
who was proceeding with the advantage of hindsight and an additional
five years time. It cannot be the law that trial counsel will be said
to have performed at sentencing in an objectively unreasonable manner
whenever subsequent counsel can, with unlimited time and resources,
heap on additional or even better evidence to support the mitigation
theory. . . . Counsel were not ineffective for relying on the
diagnosis at trial which was substantially the same as the evidence
presented at the postconviction hearing.
Prowell first points out that this paragraph is nearly identical to
language in the State’s reply brief in State v. Holmes, 728 N.E.2d 164
(Ind. 2000), and to the postconviction relief court’s findings of fact and
conclusions of law in Wrinkles v. State, 690 N.E.2d 1156 (Ind. 1997).
Although we sympathize with the usefulness of recycling language, it is not
appropriate to use form language where those statements are not an accurate
reflection of the testimony and evidence. That is the case here. As
already noted, the statement that the evidence presented to the
postconviction relief court was simply “more of the same” as that presented
to the sentencing court is clearly erroneous. Both Bailey and Liffick
testified, in depth, as to the “monumental” and “very significant”
differences between a diagnosis of paranoid personality disorder and a
diagnosis of schizophrenia. Nor can it be said that the evidence was
produced “with the advantage of hindsight and an additional five years
time.” Vowels continued to represent Prowell in his direct appeal to this
Court and the ineffectiveness of trial counsel at the guilt and sentencing
phases was not an issue in that direct appeal, which concluded when
rehearing was denied on March 2, 1998. The counsel who represented Prowell
in postconviction proceedings entered their appearances on March 31 and
October 13, 1998, and the postconviction hearing took place on April 19,
1999. Counsel did not have an “additional five years” to investigate this
case, let alone “unlimited time.”
II. Ineffective Assistance of Counsel
Prowell's primary claims in this appeal are ineffective assistance of
trial counsel at the guilt and sentencing phases of his case. For the most
part, the claimed shortcomings in counsel’s performance bear on both,
because they relate to the failure to present the severity of Prowell’s
mental health, which related to any insanity defense, to the plea of guilty
but mentally ill, and to the appropriateness of the death penalty.
To establish a violation of the Sixth Amendment right to effective
assistance of counsel, the defendant 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 errors, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Prowell argues that his trial counsel were ineffective at the guilt
phase on four grounds: (1) inadequate factual mitigation investigation; (2)
inadequate development of expert testimony; (3) failure to form and execute
a reasonable trial strategy; and (4) violations of Criminal Rule 24. For
these purposes, the issue is not whether testimony similar to Liffick’s and
Bailey’s, along with the background witnesses’, would carry the day. It is
sufficient that there is a reasonable probability that this is the case,
and we have no doubt that this showing was easily made.
A. Counsel’s Awareness of Potential Mental Health Issues
Vowels had previously served as second chair in the defense of
Timothy Anderson, who was charged with murder and tried in Judge Young’s
court. After Anderson was convicted on a plea of guilty but mentally ill,
the jury recommended death. Judge Young instead imposed a term of sixty
years, stating that “the jury’s verdict of guilty but mentally ill is
inconsistent with the death sentence.” Based on this experience, Vowels
formulated a “strategy” to rely on Judge Young’s presumed reluctance to
sentence a mentally ill person to death.
In the Anderson case, Judge Young stated that he was persuaded by
compelling evidence, including the testimony of a number of psychiatrists
who relied on their own evaluations and a detailed background report, that
the defendant had long suffered from a severe mental illness.[7] At
Prowell’s sentencing, Judge Young denied any parallels to the Anderson
case: “I rejected the death penalty recommendation from the Jury on that
case because I personally do not believe that we should execute mentally
ill individuals. That case and the case of Mr. Prowell do not have any
similarities other than death of a victim.”
Prowell first claims that his trial counsel were ineffective because
they failed to conduct a reasonable mitigation investigation.
Specifically, he argues that despite their suspicions that Prowell suffered
from mental illness, Vowels and Danks failed to investigate adequately his
mental health with the goal of a defense of insanity or a plea of guilty
but mentally ill. Both Vowels and Danks testified at the postconviction
relief hearing that from the outset of their representation, they believed
Prowell to be “mentally unsound” or “mentally ill.” For example, Vowels
testified that his first impression of Prowell was that “[s]omebody’s home,
but the lights aren’t on.” He also described the experience of attempting
a conversation with Prowell as “pulling teeth.”
You may ask Mr. Prowell, “How are you today?” and his visual . . . I
mean, what you take in, I say, “How are you today?” and the look he
gives you is that you have just asked him to reveal Einstein’s Formula
of Relativity. I mean, it’s like it’s a very complex thing for him to
respond to you.
Similarly, Danks testified that Prowell was “withdrawn” and “distant,”
didn’t appear to understand “the gravity of the situation,” and didn’t
“under[stand] reality in a normal sense.” Although Vowels believed Prowell
to be mentally ill, he did not consider recommending pleading guilty but
mentally ill, which is one of the three pleas appropriate in Indiana
criminal proceedings. Ind. Code § 35-35-2-1(a)(3) (1998); Miller v. State,
720 N.E.2d 696, 702 (Ind. 1999).
Despite his experience with the Anderson case and his belief that
Prowell was mentally ill, Vowels did not take similar steps to investigate
Prowell’s background and family history to supply his expert with the
necessary information to form a proper diagnosis. A lawyer experienced in
capital representation, the mitigation investigator, and two psychiatrists
all testified at the postconviction hearing that the information gathered
by Prowell’s trial counsel and provided to Dill before the sentencing
hearing was inadequate and below prevailing norms in capital cases. It is
clear from the record that Dill’s conclusion that Prowell suffered from
paranoid personality disorder, described by both psychiatrists as a far
less serious mental illness than schizophrenia, was an inevitable result of
the scanty information supplied to him and the fact that he was retained
just eighteen days before Prowell’s sentencing hearing. Essentially,
Vowels allowed Prowell simply to fall on the mercy of the trial court
without developing the evidence necessary to support a diagnosis of serious
mental illness. This step is certainly not necessary to effective counsel
in every case. Here, however, there were obvious indications that
Prowell’s case did present substantial issues turning on the development of
this evidence.
B. Failure to Develop Expert Testimony
Despite their suspicions that Prowell suffered from severe mental
illness and their decision to rely on the judge’s reluctance to sentence a
mentally ill person to death, Vowels and Danks did not retain Dill until
ten months after they were appointed to represent Prowell and two-and-a-
half months after the guilty plea. Nor did they hire mitigation
investigator Steve Brock until a week after Prowell had pleaded guilty.
Vowels, who had previously served as second chair in the defense of
Anderson, a death-penalty-eligible defendant who pleaded guilty but
mentally ill, had experience with gathering evidence of mental health
mitigators, but did not attempt do so until after Prowell’s plea. Without
the assistance of a psychologist or psychiatrist and a mitigation
investigator, Prowell’s trial counsel did not have the basic information
necessary to advise Prowell as to a plea of guilty but mentally ill, nor
did they have the ability to argue persuasively for a plea agreement on
that basis.
The fact that Vowels waited until after Prowell had pleaded guilty to
retain a mental health expert is in itself troubling. But concern is
heightened by the haphazard way Vowels went about hiring that expert. The
same Liffick who examined Prowell before his postconviction relief hearing
and diagnosed him as suffering from schizophrenia was a psychiatric witness
in the Anderson case. Despite Vowels’ prior experience with Liffick, who
was the Medical Director of the Southwestern Indiana Mental Health Center
in Evansville and an expert in schizophrenia, when Vowels finally did
produce an expert to testify at Prowell’s sentencing, he relied on the
recommendation of a new lawyer who knew Dill only through Dill’s testimony
in Social Security disability benefits hearings.
Finally, Liffick, Bailey, and Dill all agreed in postconviction
testimony that when Dill was eventually retained, he was not given enough
time or adequate information to diagnose Prowell properly. Dill did not
have the time to establish a relationship with Prowell that would enable
him to gain useful information. Bailey testified that without records or
other evidence that a patient’s symptoms had lasted longer than six months,
no doctor could, in good conscience, arrive at a diagnosis of
schizophrenia. In simple terms, Prowell’s under-diagnosis as suffering
from paranoid personality disorder was a direct result of his counsel’s
failure to retain a mental health expert in a timely manner and their
failure to provide the sole expert with essential information.
C. Failure to Form and Execute a Reasonable Trial Strategy
Vowels trial strategy was, in his words: “to rely on the good graces
of the Circuit Court judge not to put my client on death row.” But as
Judge Young’s comments at Prowell’s sentencing make clear, Vowels failed to
convey to the court the severity of Prowell’s mental illness and connect it
to the murders. This failure to investigate adequately Prowell’s mental
status and secure appropriate expert testimony was compounded by the fact
that, at the guilty plea hearing, Vowels affirmatively represented Prowell
to be mentally sound at that time and at the time of the murders. These
statements significantly undermined an already flimsy sentencing strategy.
Although Vowels and Danks had spent several hours preparing Prowell
for the guilty plea hearing, Prowell had difficulty stating a factual basis
for the plea that was acceptable to the court and prosecutor. In an
attempt to remedy the situation, Vowels asked Prowell a few questions to
establish that he “knowingly” committed the murders. Still unsatisfied
that Prowell’s statements adequately met the culpability requirement, the
prosecutor admitted a transcript of Prowell’s initial statement to police
in order to establish a factual basis for the plea. Worried that the court
would still not accept Prowell’s plea, Vowels volunteered:
Judge, I have no question Mr. Prowell understands this Hearing,
understands what he’s charged with, understands the proceedings,
understands what he’s waiving today. He is fully capable of assisting
me, he is fully capable of discussing the case with me. He has
reviewed the case file with me, he has intelligently discussed the
facts of the case, he is lucid, he has a good attention level. My
investigation, and I will candidly tell your Honor, at this point I am
bound by a privilege, but I can tell you, and it is not my, let me say
this, my investigation reveals that my client’s plea today is
knowingly, voluntarily, and that he is of sound mind today and on the
event of the murders.
This is an astonishing statement given that Prowell pleaded guilty without
a plea agreement and that Vowels’ sole sentencing strategy was to convince
Judge Young that Prowell was severely mentally ill and therefore should not
be sentenced to death. Vowels’ statement to the court about Prowell’s
comprehension of the proceeding, his ability to assist in his own defense,
and his “sound mind today and on the event of the murders” is fundamentally
inconsistent with his attempt to argue that Prowell had long suffered from
a serious mental illness which mitigated his culpability for the murders.
Given the inconsistency of Vowels’ statements to the court, the testimony
of a psychologist that Prowell merely suffered from a personality disorder,
and the paucity of mitigating evidence or testimony regarding Prowell’s
background, it is not surprising that Judge Young found that Prowell’s case
bore little resemblance to Anderson’s. There is more than a reasonable
probability that the decision of the trial court to sentence Prowell to
death was a direct result of counsel’s ineffectiveness.
Vowels’ speech was apparently an effort by counsel to cause the court
to accept the plea, but it at the same time disavowed Prowell’s best hope
to avoid the death penalty. It is not too harsh to state that it appears
counsel’s desperation to avoid a trial for which there was grossly
inadequate preparation also drove Prowell’s lawyers to jettison his best
hope to survive.
D. Criminal Rule 24 Violations
Prowell offers an explanation for why his trial counsel failed to
conduct an adequate mitigation investigation, retain experts who could
provide the severe diagnosis that Liffick and Bailey found, or even take
the time to create a reasonable strategy. Prowell points out that,
throughout his representation, Vowels carried a felony caseload far in
excess of that permitted under Criminal Rule 24(B)(3). Indiana is unique
among the states in its effort to prevent ineffective assistance of counsel
in capital cases. Criminal Rule 24 provides that “appointed counsel shall
not accept workloads which, by reason of their excessive size, interfere
with the rendering of quality representation or lead to the breach of
professional obligations.” Salaried or contractual public defenders are to
be appointed as trial counsel in capital cases only if:
i) the public defender’s caseload will not exceed twenty (20)
open felony cases while the capital case is pending in the
trial court;
ii) no new cases will be assigned to the public defender within
thirty (30) days of the trial setting in the capital case;
iii) none of the public defender’s cases will be set for trial
within fifteen (15) days of the trial setting in the capital
case; and
iv) compensation is provided as specified in paragraph (C).
Although the point has never been made explicit, we think it is clear that
unless any variances from the standards of the rule are disclosed to the
court, acceptance of employment under the rule constitutes a representation
to the trial court that counsel meets the requirements of the rule. Courts
cannot be expected to police sua sponte the caseloads of the counsel
appearing before them. It is incumbent upon defense counsel to raise any
issue presented by counsel’s workload in excess of the limits laid out in
the rule. The rule is self-enforcing to the extent that the State may
refuse to reimburse counties for attorney expenses if the requirements of
Criminal Rule 24 are not met.
The most obvious remedy is found within the rule itself, that is,
refusing to compensate a county for attorneys’ fees and expenses where the
defense attorney is found to be in violation of the caseload limits
prescribed by the rule without the court’s permission. Presumably, the
county would then penalize the lawyer who violated the rule by withholding
payment for time spent on cases where the rule was violated. Experience
suggests that lawyers are likely to observe rules if their paychecks depend
on it.
We note that Vowels may well have reasonably concluded that there was
no need to raise the Criminal Rule 24 issues with the trial court because
the trial court’s appointments were themselves the source of these Criminal
Rule 24 problems. In any event, the issue here is not the remedy for a
Criminal Rule 24 violation. It is the effectiveness of Prowell’s
representation, whether it stemmed from that circumstance or others.
In this case, Vowels apparently made no effort to limit his caseload
to comply with Criminal Rule 24 or to raise the issue with the court.
Vowels was appointed to represent Prowell on May 31, 1993. On that day, he
had twenty-eight open public defender felony cases. From May 31, 1993
through May 5, 1994, the day when Judge Young sentenced Prowell to death,
Vowels’ felony public defender caseload ranged from twenty-one to forty-
three open felony cases. Prowell’s original trial date was set for late
January 1994. In the months of November and December 1993, when Vowels
presumably should have focused his attention on Prowell’s case, he had an
average of thirty-eight open public defender felony cases, nearly twice the
number allowed under Criminal Rule 24. Vowels is a salaried part-time
public defender in Vanderburgh County. The number of additional private
felony cases that he carried during his year-long representation of Prowell
is unknown.
Vowels’ caseload also violated subsection (B)(3)(c)(iii) of Rule 24,
which specifies that none of the public defender’s cases may be set for
trial within fifteen days of the capital trial. Vowels was appointed to
represent Raphael Hastie on a non-capital murder charge with trial set for
February 7, 1994, approximately ten days after Prowell’s trial was
scheduled to begin. Vowels testified at Prowell’s postconviction relief
hearing that he believed that he had a good chance of securing an acquittal
for Hastie and that he had spent a large number of hours in December 1993
and January 1994 preparing for the case.
Given the rigors of his high caseload, and particularly the demands of
the Hastie case, Vowels testified that he was not prepared to take the
Prowell case to trial on January 27, 1994. He testified that he took no
steps to select a jury for the Prowell trial, was not prepared to question
potential jurors in a death penalty case, was not prepared to present a
defense in the guilt phase of the trial, and was not prepared to present a
mitigation case. Vowels did not counsel Prowell to plead guilty to two
death-penalty-eligible murders without a sentencing agreement based on a
reasonable trial strategy. Instead, in his words, he did so because he
“was afraid to try his case.”
E. Reasonable Probability of a Different Result
Prowell’s condition obviously raised significant issues as to an
insanity defense, whether a guilty or guilty but mentally ill plea was
appropriate, and the appropriate sentence. Counsel failed to develop
mental health testimony and conducted only the most cursory investigation
of Prowell’s behavior and background before advising him to plead guilty.
This performance of Prowell’s trial counsel fell below an objective
standard of reasonableness based on prevailing professional norms. The
second prong of the Strickland test for ineffective assistance of counsel
is whether there is a reasonable probability that the deficiencies in
counsel’s performance prejudiced the defendant. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. Prowell’s claims that but for his counsel’s
ineffective assistance, he would not have pleaded guilty. In State v. Van
Cleave, 674 N.E.2d 1293, 1296-97 (Ind. 1996), this Court applied the
Strickland standard to a claim of ineffective assistance of counsel where
the defendant pleaded guilty. We held that in order to establish that a
guilty plea would not have been entered if trial counsel had performed
adequately, the petitioner must show that a defense was overlooked or
impaired and that there was a reasonable probability of success at trial.
Van Cleave, 674 N.E.2d at 1299-1300. Van Cleave dealt with a trial that
could produce only two results, guilty or not guilty. A more precise
formulation, relevant here, is that the petitioner must show a reasonable
probability of a different result. Prowell’s hypothetical trial could
produce a result of either guilty, not guilty, or guilty but mentally ill.
Thus, the question in this case is whether there was a reasonable
probability a trial would have produced a result of either not guilty or
guilty but mentally ill.
Although the evidence that Prowell killed Powers and Fillbright is
uncontroverted, the evidence at postconviction established a reasonable
probability that a jury would have found Prowell guilty but mentally ill if
an adequate defense had been presented. Although a guilty but mentally ill
conviction or plea does not guarantee a defendant that the death penalty
will not be imposed, Harris v. State, 499 N.E.2d 723, 725-27 (Ind. 1986),
as a practical matter, defendants found to be guilty but mentally ill of
death-penalty-eligible murders normally receive a term of years or life
imprisonment.[8] See Dunlop v. State, 724 N.E.2d 592, 596 (Ind. 2000)
(sentenced to life imprisonment after jury verdict of guilty but mentally
ill); McIntyre v. State, 717 N.E.2d 114, 119 (Ind. 1999) (sentenced to life
imprisonment after jury verdict of guilty but mentally ill); Whipple v.
State, 523 N.E.2d 1363, 1365 (Ind. 1988) (sentenced to term of years after
a jury verdict of guilty but mentally ill). Prowell focuses on the
statement by Judge Young in the Anderson case that the death penalty is
inappropriate for a defendant found guilty but mentally ill. We believe
the Strickland test is to be applied without regard to the propensities of
an individual judge or jury. See Hill v. Lockhart, 474 U.S. 52, 60 (1985)
(citing Strickland, 466 U.S. at 695). Nevertheless, we believe Judge
Young’s view is shared by many and therefore the view he expressed meets
the test of a reasonable probability as an objective matter.
There is a second aspect to counsel’s deficient performance in this
case. Here counsel advanced pleading guilty without having developed
either expert opinion or background information that were highly relevant
to an evaluation of Prowell’s mental health which in turn was relevant in
both the guilt and penalty phases. Postconviction hearing established that
the prosecutor refused a guilty plea in exchange for two consecutive life
sentences. It also established that Prowell’s counsel never considered
seeking a guilty but mentally ill plea agreement, with or without an
agreement as to the penalty. Even with no agreement on penalty, such a
plea agreement would most likely have averted the death penalty. There is
a reasonable probability that failure to seek such an agreement, and the
prosecutor’s presumed rejection, are both attributable to failure to
develop before the plea the evidence that was presented to the
postconviction court.
III. “Manifestly Cruel and Unusual Punishment”
Finally, Prowell claims that the death penalty, as applied to
defendants who suffer from severe mental illness, cannot be reconciled with
the “evolving standards of decency” required by Article I, Section 16 of
the Indiana Constitution and the Eighth Amendment to the United States
Constitution. Trop v. Dulles, 356 U.S. 86, 101 (1958). Because we have
determined that Prowell’s claim of ineffective assistance of counsel has
merit and that he is entitled to postconviction relief on that ground, we
need not address the question of whether the execution of the severely
mentally ill is constitutional in Indiana.
Conclusion
We conclude that Prowell received ineffective assistance of trial
counsel at both the guilt and penalty phases. The denial of Prowell’s
petition for postconviction relief is reversed. The case is remanded with
instructions to grant Prowell’s petition to vacate his guilty plea and
order a new trial.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
-----------------------
[1] Several witnesses testified at the postconviction hearing to Prowell’s
delusions and paranoia. For example, Karen Johnson, Prowell’s mother,
testified at the postconviction relief hearing that Prowell was once
convinced that his grandmother, with whom he had a strong and loving
relationship, had poisoned his orange juice. “He had his brother take him
to have his stomach pumped out,” she testified. “He just went berserk on
[his grandmother], accusing her of poisoning him.” After that incident,
Karen suggested to her son that he talk to a psychiatrist, but Prowell
became “very, very angry” and refused. Because he was an adult and had
never committed a violent act, Karen was advised that she could not force
him to seek treatment without his consent. Derek Reed, a childhood friend
of Prowell’s, testified that, on one occasion, when Reed rode in a car
driven by Prowell on Lake Shore Drive in Chicago, Prowell suddenly
“jerk[ed] his brakes on the highway” and exclaimed, “Didn’t you see that
elephant?” Toni Johnson, the domestic partner of Prowell’s mother during
his childhood, also testified that Prowell saw elephants on the expressway.
Once, while swerving to miss an elephant, Prowell wrecked her car. Toni
also stated that Prowell lost a job at a downtown Chicago hotel because he
saw several white people exit a car and “he ran to hide because he thought
they wanted to kill him.” Neither Reed nor Toni was interviewed by
Prowell’s counsel until the postconviction relief stage.
[2] According to the The New Harvard Guide to Psychiatry:
The essential feature of paranoid personality disorder is a pervasive
and unwarranted suspiciousness and mistrust of people. These
attitudes are intense and strongly defended. Patients search for
evidence of deception, threat, or malevolence in others and are
extremely sensitive and resistant to any suggestion of their own guilt
or responsibility. . . . This disorder is usually a stable and
syntonic form of adaptation. Except for interpersonal difficulties
with those in authority or those who attempt to become too close,
paranoid individuals are likely to function stably.
The New Harvard Guide to Psychiatry 342 (Armand M. Nicholi ed., 1988)
[3] The postconviction court made only trivial changes to the State’s
proposed findings of fact. Two sentences were moved to different places in
the document and an error in addition was corrected.
[4] Bailey diagnosed Prowell as suffering from paranoid schizophrenia,
while Liffick found that Prowell suffers from undifferentiated
schizophrenia.
[5] Bailey testified that he believed that Prowell suffered from a “mental
disease or defect” as defined in Indiana Code section 35-41-3-6:
a) A person is not responsible for having engaged in prohibited conduct
if, as a result of mental disease or defect, he was unable to
appreciate the wrongfulness of the conduct at the time of the offense.
b) As used in this section, “mental disease or defect” means a severely
abnormal mental condition that grossly and demonstrably impairs a
person’s perception, but the term does not include an abnormality
manifested only by repeated unlawful or antisocial conduct.
[6] Although characterized by the postconviction court as a conclusion of
law, this is actually a finding of fact and is reviewed as such. We accept
the postconviction court’s findings of fact unless “clearly erroneous,”
Ind. Trial Rule 52(A), but no deference is accorded conclusions of law.
State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind. 1996). The label the
trial court applies to a “finding” or “conclusion” is not determinative.
Id. at 1296.
[7] In the Anderson case, Judge Young found:
. . . that the defendant has a significant history of mental illness
and that over the years, he has voluntarily admitted himself to
various hospitals for treatment. I further find that there is no
conflict in the evidence as to the defendant’s mental illness. He was
born with this mental illness which first manifested itself during his
twenties and continues to the present time. It is not concocted or
faked and there is no doubt that the defendant is severely mentally
ill.
[8] Even James Allen Harris, the defendant in the case which established
that the imposition of the death penalty for a defendant found to be guilty
but mentally ill is constitutional, eventually had his death sentence
vacated by a postconviction relief court. He was then resentenced to a
term of sixty-years imprisonment. None of the current residents of
Indiana’s death row and none of those executed in Indiana since the death
penalty was reinstated in 1977 were found to be guilty but mentally ill
either by a jury or through an accepted plea.