ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Pamela Carter
Public Defender of Indiana Attorney General of Indiana
Thomas C. Hinesley
Preston W. Black
Kathleen Littell-Cleary Deputy Attorney General
Deputy Public Defenders Indianapolis, Indiana
KEVIN ARON CONNER ) Defendant-Appellant, ) ) v. ) 49S00-9207-PD-00591 ) STATE OF INDIANA, ) Plaintiff-Appellee. )Cause No. 49G01-8801-CF-08449
APPEAL FROM MARION SUPERIOR COURT The Honorable James K. Coachys, Special Judge
imprisonment for the murder of Wentland. We affirmed in Conner v. State, 580 N.E.2d
214 (Ind. 1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1501, 117 L.Ed.2d 640 (1992).
The defendant then sought post-conviction relief. Upon the post-conviction court's
denial of post-conviction relief, the defendant instituted this appeal.
The defendant claims thirteen errors, which we regroup into ten topics: (1) ex parte communication to the jury; (2) non-disclosure of exculpatory evidence; (3) jury instructions; (4) admission of confession; (5) assistance of trial and appellate counsel; (6) mental health evaluations; (7) constitutionality of Indiana's death penalty statute; (8) exclusion of evidence at the post-conviction hearing; (9) cumulative effect of claimed errors as violation of due process; and (10) propriety of the death sentence.
L.Ed.2d 432 (1995). Thus, they do not substitute for direct appeals but provide a narrow
remedy for subsequent collateral challenges to convictions. Coleman, 703 N.E.2d. at
1027 (citing Weatherford v. State, 619 N.E.2d 915, 916-17 (Ind. 1993)). As a general
rule, when this Court decides an issue on direct appeal, the doctrine of res judicata
applies, thereby precluding its review in post-conviction proceedings. Lowery, 640
N.E.2d at 1037. Issues that were available, but not presented, on direct appeal are
forfeited on post-conviction review. Spranger v. State, 650 N.E.2d 1117, 1121 (Ind.
1995); Lowery, 640 N.E.2d at 1036-37. But cf. Woods v. State, 701 N.E.2d 1208 (Ind.
1998) (regarding claims of ineffective assistance of trial counsel). The petitioner has the
burden of establishing his grounds for post-conviction relief by a preponderance of the
evidence. Ind. Post-Conviction Rule 1(5).
The standard of review in appeals from post-conviction negative judgments is well-established. A party appealing from such a negative judgment must establish that the evidence is without conflict and, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. Spranger, 650 N.E.2d at 1119. The reviewing court accepts the trial court's findings of fact unless clearly erroneous, Ind. Trial Rule 52(A), but does not defer to the trial court's conclusions of law. State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind. 1996), reh'g granted in part, 681 N.E.2d 181 (Ind. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998). The reviewing court examines only the probative evidence and reasonable inferences that support the post-conviction court's determination and does not reweigh
the evidence or judge the credibility of the witnesses. Butler v. State, 658 N.E.2d 72, 75
(Ind. 1995); Lowery, 640 N.E.2d at 1037.
not recall the occurrence of such procedure and thus concluded that no communication
took place. Applying our standard of review in an appeal from a negative judgment in
post-conviction proceedings, we determine that the evidence does not lead unmistakably
and unerringly to a conclusion contrary to the post-conviction court's decision.
held that the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution. Brady v.
Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). To
prevail on a claim that the prosecution failed to disclose exculpatory evidence, a
defendant must establish: (1) that the prosecution suppressed evidence; (2) that the
evidence was favorable to the defense; and (3) that the evidence was material to an issue
at trial. Minnick v. State, 698 N.E.2d 745, 755 (1998) (citing United States v. Bagley,
473 U.S. 667, 674, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481, 489 (1985); Brady, 373 U.S. at
87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218). A reviewing court will find that the
prosecution should have disclosed evidence when there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have
been different. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383, 87 L.Ed.2d at 494. The
Seventh Circuit Court of Appeals has consistently emphasized that the State will not be
found to have suppressed material information if that information was available to a
defendant through the exercise of reasonable diligence. United States v. Morris, 80 F.3d
1151, 1170 (7th Cir. 1996), cert. denied, 519 U.S. 868, 117 S.Ct. 181, 136 L.Ed.2d 120
The defendant does not claim that this evidence was discovered after the direct appeal. A review of the record demonstrates that the information was available to the defendant through the exercise of reasonable diligence and, thus, that this claim was in
fact available to the defendant upon direct appeal. Defense counsel learned of Dr.
Frederickson and his testing during the competency hearing held on May 4, 1988, a full
five months before the trial, which began on October 4, 1988. On cross-examination by
the State, Dr. Ronald H. Hull, one of the court-ordered psychiatrists, testified that, in
addition to his examination, [a] series of psychological test[s was] done by an -- Dr.
Paul Frederickson, a clinical psychologist [which] included intelligence testing and what
we call projective test, such as the Rorschach. Record at 300. Dr. Hull further testified
that the results of this series of examinations by Dr. Frederickson were made available to
Dr. Hull before he rendered his opinion in a letter on March 21, 1988. Dr. Dwight W.
Schuster, the other court-ordered psychiatrist who examined the defendant, apparently
arranged for Dr. Frederickson to perform these tests. The results of these tests are
reflected in Dr. Schuster's letter to Judge Tranberg, dated April 18, 1988. While the
letter does not specifically mention Dr. Frederickson, it does mention that Dr. Schuster's
examination was supplemented by . . . a report of detailed psychological tests which I
had requested on [the defendant], outlines specific results, and even employs language
almost verbatim from Dr. Frederickson's report. Record at 69.
Considering these portions of the record together, we conclude that the defendant was not unaware of the psychological testing performed by Dr. Frederickson; rather, this information was available to the defendant through the exercise of reasonable diligence. Because the defendant failed to raise this issue on direct appeal, the defendant has forfeited this claim in this appeal.
presumption of innocence continues throughout the trial, step by step. Record at 180.
We do not consider instructions in isolation or as single units; rather, we read instructions
together and construe them as a whole. Hurt v. State, 570 N.E.2d 16, 18 (Ind. 1991);
Kirland v. State, 43 Ind. 146, 154 (1873). Guilt phase preliminary instruction No. 11,
read with the other instructions, does not erroneously inform the jury regarding the
presumption of innocence remaining with the defendant throughout the trial.
The defendant also contends that, because guilt phase preliminary instruction No. 11 and final instruction No. 43 stated that, if a reasonable doubt is present, the defendant should be acquitted, rather than must be acquitted, the instructions erroneously failed to mandate that the jury acquit if it were to find a reasonable doubt.See footnote 2 Guilt phase final instruction No. 21, however, stated that, if a reasonable doubt exists, it would be your duty to acquit him even if you should believe from the evidence, that he has been shown to be guilty of wrong doing. Record at 197 (emphasis added). Thus, the jury was clearly instructed to acquit in the presence of reasonable doubt.
defendant continues to argue that his confession was involuntary because the police
detectives provided legal advice and ultimately manipulated a confession from a suspect
with mental disorders. Brief of Petitioner-Appellant at 85. The defendant has also
argued that the confession is unreliable because many of the assertions in the confession
simply do not square with the established facts. Brief of Petitioner-Appellant at 85.
The post-conviction court considered this claim and entered findings of fact and
conclusions of law. The post-conviction court concluded that the defendant's confession
was voluntary, reliable, and not the product of undue coercion or misconduct, and
therefore was properly admitted.
On direct appeal, the defendant also challenged the admission of his confession, arguing that the police continued questioning him after he requested an attorney. We found no error in the trial court's admission of the defendant's videotaped confession, holding that the record contained evidence of probative value supporting the court's ruling. Conner, 580 N.E.2d at 219. We have noted that, despite claims of res judicata, we may revisit a prior decision, but only in extraordinary circumstances such as where the initial decision was clearly erroneous and would work manifest injustice. Minnick, 698 N.E.2d at 760 (citing Arthur v. State, 663 N.E.2d 529, 531 (Ind. 1996)).
The post-conviction court, however, considered and rejected this claim on its merits. We elect to review this determination and conclude that the defendant has not established that the evidence is without conflict and leads unmistakably and unerringly to a conclusion contrary to the post-conviction court's decision. Before he was questioned
and gave his videotaped statement, the defendant was advised of his constitutional rights
multiple times and signed multiple written waivers of his rights. The defendant was calm
when he gave the taped statement, and he was provided with food, soft drinks, and
cigarettes at his request. The defendant affirmatively expressed his desire to speak with
the detectives, testified that he was not confused or under pressure, and did not request
to speak with an attorney. There exists evidence in the record that the defendant did not
suffer from a mental disorder. Evidence also demonstrates that the detectives used the
criminal code book not to manipulate the defendant into giving a statement or to provide
legal advice, but rather to answer questions asked by the defendant and to explain the
charges against the defendant, the differences among murder, voluntary manslaughter,
and involuntary manslaughter charges, and the relevance of sudden heat. While the
police detectives may have had somewhat differing opinions as to the sequence of events,
the evidence in the record does not lead unerringly to a conclusion contrary to the trial
court's decision. Even though some of the facts in the defendant's confession may be
inconsistent with facts established at trial, these inconsistencies do not render the
confession unreliable or involuntary. The principal facts provided in the defendant's
confession are corroborated by other facts. As to the post-conviction court's rejection of
the defendant's claim that his confession was erroneously admitted, we find no error.
The court's decision is not clearly erroneous.
assistance and made all significant decisions in the exercise of reasonable professional
judgment. Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.
The Strickland Court
recognized that even the finest, most experienced criminal defense attorneys may not
agree on the ideal strategy or the most effective way to represent a client. Id. at 689, 104
S.Ct. at 2065, 80 L.Ed.2d at 695.
Isolated mistakes, poor strategy, inexperience, and
instances of bad judgment do not necessarily render representation ineffective. Bieghler
v. State, 690 N.E.2d 188, 199 (Ind. 1997); Davis v. State, 598 N.E.2d 1041, 1051 (Ind.
1992), cert. denied, 510 U.S. 948, 114 S.Ct. 392, 126 L.Ed.2d 340 (1993); Ingram v.
State, 508 N.E.2d 805, 808 (Ind. 1987).
However, in 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.
Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.
prevailing standards in the legal community at that time. The evidence
demonstrated that trial counsel filed many pleadings on behalf of [the defendant],
conducted a reasonable investigation into [the defendant's] family, social and
medical background, and presented an adequate defense on behalf of [the
defendant] at the guilt phase, penalty phase, and sentencing hearing during [the
defendant's] trial. Certainly, in hindsight, trial counsel could have possibly
expanded on areas of [the defendant's] defense but, based upon the evidence
presented, failure to do so was not ineffective assistance of counsel.
P.C.R. Record at 324. Thus, the post-conviction court concluded that the defendant failed to carry his burden of demonstrating deficient performance and prejudice.
(1). Assistance of Counsel at the Guilt Phase
In challenging the assistance of his two trial counsel at the guilt phase, the defendant argues that trial counsel failed to develop or present any available defense. The defendant specifically alleges the following failures by counsel: (1) confusion over their respective roles; (2) belated, misguided, and inadequate investigation; (3) belated, random, and confused motion practice; (4) failure to appreciate the degree to which the defendant's mental health was at issue; (5) failure to develop a guilt phase theory; (6) failure to investigate and present available defenses, including voluntary manslaughter as to Counts I and II, factual disputes regarding Count III, and intoxication; and (7) failure to object to an allegedly prejudicial photographic array and in-court identification and the State's closing argument. The defendant also argues that the cumulative effect of these deficiencies deprived him of a fair trial.
The record contains evidence that, at the time of his 1988 trial, one attorney had over ten years of experience in his criminal law practice. This same attorney had been
involved in capital cases and had received training in capital defense. The other attorney
had prosecuted murder cases and had either prosecuted or defended about twenty Class A
and B felony cases.
In preparing and presenting the defendant's defense, the two attorneys both undertook substantial work and consulted with each other regarding the case. Although one attorney was designated the lead attorney, the other attorney actually performed the bulk of the work on the case and assumed the lead role prior to trial. Defense counsel consulted with other attorneys, including counsel from the Indiana Public Defender's office. Defense counsel also had access to resources available from the Indiana Public Defender's office. One of the counsel testified that he believed he utilized all resources of which he was aware, and the other testified that he believed he had pursued every aspect of the defendant's case of which he was aware. Defense counsel arranged to have the defendant's mental condition examined, requested and received funds to hire an investigator, and hired an investigator who investigated the case. Both attorneys timely filed numerous relevant motions, including a motion to suppress the defendant's confession, one of the key pieces of evidence against him, and a motion to obtain funds for a psychiatrist, in addition to the two appointed by the court, to evaluate the defendant. The defendant has not identified any motion that was denied solely because it was not filed in a timely manner.
Several weeks before trial, defense counsel indicated to the trial court that the defense would be ready for trial on October 3, 1988, and did not consider seeking a
continuance because more time was needed for investigation. Defense counsel at trial
challenged the State to prove the elements of the crimes alleged and attempted to create
reasonable doubt, thereby seeking acquittal upon the failure of proof. Furthermore,
defense counsel subjected the State's witnesses to cross-examination and objected to the
admission of evidence at trial.
Many of the alleged failings of defense counsel relate to strategic decisions that counsel would have made. Defense counsel could have reasonably decided not to include the defendant's mental health as a part of its defense, especially considering the fact that several of the psychiatric or mental health examinations performed on the defendant failed to provide substantive evidence suggesting that the defendant's mental health was a serious issue or any evidence that was favorable to the defendant's case. The results of at least three mental health examinations did not suggest that the defendant suffered from serious mental disability or disease. Counsel's strategic decision was reasonable.
Defense counsel could have reasonably determined not to present certain potential defenses because they adopted an alternative strategy. As to Counts I and II regarding the murders of Steven Wentland and Tony Moore, defense counsel elected to challenge the State to prove fully its principal charges, seeking acquittal upon the State's failure to prove its case beyond a reasonable doubt, instead of presenting an affirmative defense or arguing for a lesser-included offense in the guilt phase. This strategic decision enabled counsel to concentrate on seeking potential inconsistencies in damaging witness testimony. As to the defendant's allegation that trial counsel failed to present factual
disputes regarding Count III which involved the murder of Bruce Voge, we note that trial
counsel filed a motion to suppress the defendant's confession, cross-examined State's
witnesses, suggested during closing argument that another person was responsible for
Voge's death, and identified discrepancies between the testimony offered by witnesses
and the version of events provided by the defendant in his confession. Regarding the
defendant's contention that defense counsel should have investigated and presented
available evidence supporting an intoxication defense, counsel was not outside their
bounds of discretion in deciding not to invoke an intoxication defense when, under the
facts of this case and the law of Indiana, this defense was not likely to be effective.See footnote
Montgomery v. State, 521 N.E.2d 1306, 1309 (Ind. 1988). Such strategic decisions are
reasonable and legitimate.
By choosing not to object to the allegedly prejudicial photographic array and in- court identification and the State's closing argument, defense counsel avoided drawing attention to testimony or argument unfavorable to the defendant. This was a legitimate strategy.
Applying our standard of review for appeals from negative judgments in post-
conviction proceedings, we conclude that, as to the claims of deficient trial strategy and
tactics, the evidence is not without conflict and does not, as a whole, lead unmistakably
and unerringly to a result opposite that of the post-conviction court.
The defendant also contends that, even if the individual failings of trial counsel do not constitute ineffective assistance, their cumulative effect does. The post-conviction court did not enter any findings or conclusions regarding this claim. The defendant cites to our holding in Williams v. State in which we reversed a conviction based upon an accumulation of defense attorney errors, finding that where those mistakes and oversights mount to do substantial damage to the defense, such a claim must prevail. 508 N.E.2d 1264, 1269 (Ind. 1987). In Williams, counsel for the defendant clearly provided merely perfunctory representation--counsel failed to attend hearings, indicated to the trial court that he was unprepared to represent the defendant, attempted to withdraw on multiple occasions, including the first day of trial, did no additional investigation or preparation during the five days between the denial of a motion to withdraw and trial, and did not interview any of the State's witnesses prior to trial. His only contact with the alibi witnesses was by telephone, failing also to subpoena them, and he did not request funds to depose them until the morning of the trial. Under these unusual facts, this Court determined that [t]he undisputed facts, standing alone, clearly establish that Williams received ineffective assistance, id. at 1267, and that, [i]n addition to revealing substandard representation, the record graphically portrays a breakdown in the adversarial process which casts substantial doubt on the reliability of
Williams' trial, as required by Strickland, id. at 1268.
Such an unusual situation does not exist in this case. Here the two defense attorneys fully represented the defendant throughout the trial. Defense counsel had undertaken substantial work in investigating and preparing for trial. No breakdown in the adversarial process occurred that would cast substantial doubt on the reliability of the defendant's trial.
(2). Assistance of Counsel at the Penalty and Sentencing Phases
In challenging the assistance of counsel at the penalty and sentencing phases, the defendant contends 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 .
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. Defense counsel also conducted cross-examination, objected to the admission of evidence, and identified mitigating circumstances. Defense counsel requested funds and identified corrections for the pre-sentence report.
We conclude that the evidence does not lead unerringly and unmistakably to a
result contrary to that reached by the post-conviction court in rejecting the defendant's
claim of ineffective assistance of counsel at the penalty and sentencing stages.
The defendant also contends that trial counsel provided ineffective assistance when they argued that the death penalty should not be imposed so that the defendant could give back to society. During part of their summation in the penalty phase, the defense counsel argued that the defendant's life should be preserved so that experts could study him scientifically to discover how he worked and why people commit such crimes.
The defendant cites two federal circuit court cases for the proposition that asking the jury to spare the defendant's life in order to study him constitutes ineffective assistance. Wade v. Calderon, 29 F.3d 1312, 1324 (9th Cir. 1994), cert. denied, 513 U.S. 1120, 115 S.Ct. 923, 130 L.Ed.2d 802 (1995); Waters v. Zant, 979 F.2d 1473, 1497 (11th Cir. 1992), vacated in part sub nom. Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995), cert. denied sub nom Waters v. Thomas, 516 U.S. 856, 116 S.Ct. 160, 133 L.Ed.2d 103. Neither of these opinions supports the defendant's argument.See footnote 4 Arguing that the
defendant's life should be spared in order to provide opportunities for study does not
necessarily constitute ineffective assistance. Rather, such an argument could be a
reasonable strategy in making the best argument in a hard case.
We conclude that the evidence does not lead unerringly and unmistakably to a conclusion contrary to the decision of the post-conviction court that the defendant's trial counsel did not provide ineffective assistance. Thus, the post-conviction court did not err in rejecting the defendant's claim that trial counsel provided ineffective assistance at the trial, penalty, and sentencing phases.
determined that the defendant failed to meet his burden of proof, and the defendant now
challenges a negative post-conviction judgment. In this appeal from that judgment, the
defendant fails to argue that the evidence is without conflict and, as a whole,
unmistakably and unerringly points to a conclusion contrary to the post-conviction court's
A defendant alleging the ineffective assistance of appellate counsel on direct appeal bears a rigorous burden. Because the decision regarding what issues to raise and what arguments to make is 'one of the most important strategic decisions to be made by appellate counsel,' ineffectiveness is very rarely found. Bieghler, 690 N.E.2d at 193 (quoting Lissa Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. Va. L. Rev. 1, 26 (1994)). Accordingly, when assessing these types of ineffectiveness claims, reviewing courts should be particularly deferential to counsel's strategic decision to exclude certain issues in favor of others, unless such a decision was unquestionably unreasonable. Bieghler, 690 N.E.2d at 194.
The defendant claims that appellate counsel provided ineffective assistance by failing to raise a claim of ineffective assistance of trial counsel on direct appeal. This Court has recently clarified the law regarding claims of ineffective assistance of counsel. See Woods, 701 N.E.2d at 1211-20. In Woods, we held that a Sixth Amendment claim of ineffective assistance of trial counsel, if not raised on direct appeal, may be presented in post-conviction proceedings. However, if ineffective assistance of trial counsel is
raised on direct appeal by a DavisSee footnote
petition or otherwise, the issue will be foreclosed from
collateral review. Id. at 1220. Thus, because appellate counsel is not required to raise
this claim on direct appeal, appellate counsel's failure to do so was not deficient
The defendant urges that appellate counsel failed to challenge what the defendant now alleges is an improper sentence.See footnote 6 The defendant contends that his appellate counsel's argument in the brief regarding this issue covered only two pages and that counsel failed to cite anything in the record to show the State's failure to prove the existence of an aggravating circumstance or to demonstrate the existence of mitigating circumstances disregarded by the trial court. To the contrary, the appellate brief discussed these issues and incorporated, from another portion of the brief, argument on a related issue and argued that the death sentence was invalid, that the prosecution failed to prove the existence of at least one aggravating factor, and that the trial court failed to consider several mitigating factors identified in the brief. On direct appeal, this Court carefully considered these arguments and addressed them on their merits. See Conner, 580 N.E.2d at 221. The defendant has failed to meet his burden of showing that the evidence leads unmistakably and unerringly to a conclusion opposite that of the post-
The defendant asserts that appellate counsel failed to include trial counsel's arguments at trial, thereby failing to discover potential claims of error relating to those arguments and precluding their review on direct appeal. Under the law at that time, a motion to correct error controlled the issues available on direct appeal. Ward v. State, 519 N.E.2d 561, 562 (Ind. 1988). At the relevant time, Indiana Appellate Rule 7.2(B) provided in part: The appellant shall designate only those parts of the record to be transmitted to the court on appeal . . . . Neither party shall request parts of the record or a transcript of the proceedings which are not needed for the issues to be asserted upon the appeal . . . .See footnote 7
The defendant's belated motion to correct errors, filed by trial counsel, controlled the issues available on direct appeal, and this motion alleged no errors that would have required appellate counsel to include trial counsel's arguments. Nothing in the record either suggests that a record of trial counsel's arguments were necessary to the appeal or indicates that appellate counsel deemed such a record to be necessary.
The defendant claims that appellate counsel was ineffective for failing to present cogent arguments, for failing to support the claims with proper citation to relevant authority and the record, and for raising irrelevant issues. On direct appeal, appellate counsel's seventy-eight page brief challenged the defendant's trial, conviction, and
sentencing in fifteen enumerated claims, altogether presenting twenty-four issues, which
we addressed.See footnote
See Conner, 580 N.E.2d at 216-21. Additionally, appellate counsel
petitioned for a writ of certiorari to the U.S. Supreme Court and for a rehearing when that
Court denied the writ.
The defendant also contends that appellate counsel was ineffective for deciding not to file a reply brief or a petition for rehearing. Appellate counsel explained that he did review . . . the [State's] Brief at some length and looked at the various allegations and things submitted and that he decided not to file a reply brief because he considered the State's brief very cursory and [he] thought we had covered our issues in our Appellant's Brief. P.C.R. Record at 875. Appellate counsel added that he thought our position was presented in our brief the way we wanted to present it and that the State's brief was very sketchy for the most part. P.C.R. Record at 875. Regarding his decision not to petition for rehearing before the Indiana Supreme Court, appellate counsel testified that he reviewed [the Indiana Supreme Court opinion on direct appeal] and thought about it and considered it, but it just, you know, I knew we wanted to file something in
the U.S. Supreme court so I thought the issues had been considered and I didn't know that
we would change any minds necessarily. P.C.R. Record at 876. The post-conviction
court was not clearly erroneous in failing to find this to be deficient strategy.
The defendant claims that appellate counsel's deficiencies cumulatively resulted in the denial of a meaningful appeal. This contention fails because the post-conviction court did not err in rejecting each of the individual claimed deficiencies.
We conclude therefore that the evidence does not lead unmistakably and unerringly to the conclusion that the defendant received ineffective assistance of appellate counsel on his direct appeal.
defendant presented the testimony of several lawyers or experts acquainted with the
system as it existed at the time of the defendant's trial. On cross-examination, the
prosecutor asked Bob Hill, a public defender who tried capital cases roughly
contemporaneous with the defendant's trial, if indigent clients in Marion County did not
receive effective assistance of counsel in any circumstances because of the nature of the
agency. P.C.R. Record at 1012. Hill replied, No. I don't think you can phrase that
statement in the absolute. . . . I think these defects resulted in some people not receiving
adequate representation. P.C.R. Record at 1012-13 (emphasis added). Robert
Spangenberg, an expert for the defendant who has conducted studies of court systems
throughout the nation and who testified that a strong presumption existed that lawyers
would be ineffective, admitted that he did not know of a single lawyer being fired for
political reasons. Spangenberg also testified that investigative and expert resources were
often not available in non-capital cases but that this testimony does not apply to capital
cases. He also stated that, in death penalty cases, the public defenders could receive
resources in the way of information and training from the Indiana Public Defender's
office. Additionally, trial and appellate counsel for the defendant testified that they did
not feel that a lack of funding and resources or conflicts of interest inhibited their
representation of the defendant.
We have discussed and rejected similar claims that systemic defects in the county indigent defense systems, including that of Marion County, create a presumption of prejudice and ineffective assistance. See, e.g., Coleman, 703 N.E.2d at 1036-41 (Lake
County's system); Brown v. State, 698 N.E.2d 1132, 1145 (Ind. 1998) (Lake County's
system); Johnson v. State, 693 N.E.2d 941, 952-53 (Ind. 1998) (Madison County's
system); Roche v. State, 690 N.E.2d 1115, 1135 (Ind. 1997) (Lake County's system);
Games, 684 N.E.2d at 478-81 (Marion County's system).
While this Court recognizes the less than ideal conditions in the Marion County public defender system in the 1980s and appreciates the necessity of competent defense for indigent defendants, theoretical imperfections alone will not satisfy the extremely heavy Cronic burden and force us to find a Cronic exception to the Strickland analysis and to reverse the defendant's conviction. We conclude that the evidence is not without conflict and, as a whole, does not lead unerringly and unmistakably to a decision opposite the post-conviction court's finding that the defendant failed to establish a Cronic claim. The post-conviction court did not err in concluding that the defendant failed to establish his claim that systemic defects in the Marion County public defender system made it impossible for counsel properly to represent the defendant and rendered the defendant's counsel ineffective.
conducted testing for the limited purpose of determining competency and sanity, and that,
because of the absence of a competent mental health evaluation, the defense was unable
to determine to what extent Conner's mental health was relevant to the guilt or penalty
phases of trial. Brief of Petitioner-Appellant at 132. He contends that the unreliable and
incomplete evaluations prevented the development of evidence relevant to the
circumstances of his admissions, the commission of the crime, and mitigating evidence.
The post-conviction court found that the defendant failed to carry his burden of proof on
the claim that there was impropriety in the manner in which his mental health evaluations
were conducted. Record at 318.
As noted by the post-conviction court, while trial counsel's request for a mental evaluation was for the purpose of determining competency to stand trial, the order issued by the trial court requested a report from two psychiatrists indicating the soundness and unsoundness of the defendant's mind on the date of the alleged offense. The trial court appointed two psychiatrists to examine the defendant and provided funds for the defense to hire its own psychiatric expert to assist in the development of potential defenses. The defendant was evaluated before the trial by Ronald H. Hull, M.D.; Dwight W. Schuster, M.D.; Paul Frederickson, Ph.D.; and the defense's own expert, Joseph King, M.D.
In the post-conviction proceedings, the defendant presented evidence from David Price, Ph.D., an expert routinely employed to critique and evaluate the evaluations of psychiatrists and psychologists. Brief of Petitioner-Appellant at 128. Dr. Price found fault with Dr. Frederickson's psychological testing and diagnosis, with Dr. King's
diagnosis, and with the limited scope of the evaluations of Dr. Hull and Dr. Schuster.
The defendant asserts that Dr. Price provided the post-conviction court with his opinion
that the defendant potentially suffered from thirty-one mental health diagnoses.
As observed by the U.S. Supreme Court, [p]sychiatry is not, however, an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness. Ake v. Oklahoma, 470 U.S. 68, 81, 105 S.Ct. 1087, 1095, 84 L.Ed.2d 53, 64-65 (1985). Likewise, we have noted that [p]sychiatry is an extremely uncertain field dealing with the mysteries of the human mind where expert opinions can be expected to and do differ widely. Harrison v. State, 644 N.E.2d 1243, 1253 (Ind. 1995).
We recognize that a defendant may be entitled to the assistance of psychiatric expertise. The Supreme Court in Ake addressed a claimSee footnote 9 that Ake was denied the means of presenting psychiatric evidence to rebut the State's evidence of his future dangerousness, an aggravating factor under the Oklahoma capital sentencing scheme. Focusing upon the probable value that the assistance of a psychiatrist will have and
the risk attendant on its absence, Id., 470 U.S. at 84, 105 S.Ct. at 1096, 84 L.Ed.2d at
66, the Court held:
[W]here the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase.
Id., 470 U.S. at 84, 105 S.Ct. at 1097, 84 L.Ed.2d at 67.See footnote 10
In the present case, the defendant was provided with extensive access to psychiatric assistance and testimony for his use at trial. Notwithstanding the ability of his post-conviction counsel subsequently to locate and present expert opinion disagreeing with the psychological and psychiatric evidence at trial, we decline to find constitutional infirmity, and we reject the defendant's claim that his convictions and death sentence are unreliable and fundamentally erroneous. He was not denied due process of law. The post-conviction court did not err in denying his claim on this issue.
not constitute fundamental error. In fact, this Court has previously considered and rejected almost all of these claims in other cases.See footnote 11
reports were already in evidence and provided adequate psychological evaluation.
Attorneys Robert Spangenberg and Robert Hill had already testified regarding the state of
affairs in the Marion County public defender system. The excluded evidence was
cumulative in nature.
The Indiana Rules of Procedure for Post-Conviction Remedies provide in relevant part that [t]he court may receive affidavits, depositions, oral testimony, or other evidence. P-C.R. 1(5). Because the admission or exclusion of evidence is within the trial court's sound discretion, a reviewing court defers to the trial court and will not disturb its ruling on review unless the trial court abused its discretion. Roche, 690 N.E.2d at 1134. Under the facts of this case, we decline to find that the post-conviction court abused its discretion in excluding this evidence.
arguing that the defendant's life should be spared in order to provide opportunities for study was not ineffective assistance, and the court noted that this argument had in fact been approved by other courts. Thomas, 46 F.3d at 1520-23. Rather than being an unreasonable argument, the court concluded that it could be a reasonable strategy in making the best argument in a hard case. Id. at 1522-23. Thus, Waters is antithetical to the proposition for which the defendant cites it.
mitigation . . . .' Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1, 8 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978)).
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