ATTORNEYS FOR APPELLANT
Eric K. Koselke
Ann M. Sutton
Special Assistants to the Public Defender of Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Priscilla J. Fossum
James B. Martin
Deputy Attorneys General
SUPREME COURT OF INDIANA
NORMAN TIMBERLAKE, )
Appellant (Petitioner Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9804-PD-252
STATE OF INDIANA, )
Appellee (Respondent Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven Nation, Judge
Cause No. 49G02-9302-CF-14191
ON PETITION FOR POSTCONVICTION RELIEF
August 20, 2001
Norman Timberlake was convicted of the murder of Indiana State Trooper Michael Greene
and of carrying a handgun without a license. He was sentenced to
death. He appeals the denial of his petition for postconviction relief and
raises four issues: (1) his competency during trial, direct appeal, and postconviction
relief; (2) ineffective assistance of trial counsel; (3) ineffective assistance of appellate counsel;
and (4) bias of the postconviction court. We affirm the trial courts
denial of postconviction relief.
Factual and Procedural Background
The facts of this case are reported in
Timberlake v. State, 690 N.E.2d
243 (Ind. 1997). In brief, on February 5, 1993, Timberlake and Tommy
McElroy stopped on Interstate 65 to urinate. Master Trooper Michael Greene
pulled up behind them to investigate the car stopped on the roadside.
A radio check identified McElroy as a person wanted by the police, and
as Greene was handcuffing McElroy, Timberlake shot Greene. Timberlake was caught shortly
thereafter in a lounge and charged with murder, escape, and carrying a handgun
without a license. He was convicted of murder and the handgun violation
and was sentenced to death. This Court affirmed his conviction and sentence
on direct appeal. Timberlake, 690 N.E.2d at 250. After this Court
issued its opinion, but before an order on rehearing was issued, Judith Menadue,
Timberlakes appellate attorney, questioned his competency and filed a motion to hold the
appeal in abeyance. This Court denied the motion and then denied rehearing.
Timberlake filed a petition for postconviction relief on December 7, 1998. After
two recusals, Judge Steven Nation was appointed to hear the case. At
the time Judge Nation assumed the case, the postconviction court had sua sponte
ordered two experts to evaluate Timberlakes competency, but that process was not complete.
Pursuant to Judge Nations direction, on August 2, 1999, Timberlake filed a
motion to determine his competency. After doctors interviewed Timberlake, competency hearings were
held on September 15, September 29, and October 5, 1999. Judge Nation
ruled Timberlake competent. This Court denied a request to present that issue
on interlocutory appeal. The postconviction hearing was held on November 8, 9,
10, 12, and 15 and, on December 27, the postconviction court issued Findings
of Fact and Conclusions of Law denying relief. This appeal ensued.
Standard and Extent of Review
Timberlake 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, Timberlake must convince this Court that the evidence as a whole
leads unerringly and unmistakably to a decision opposite that reached by the postconviction
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 disturb the
decision only if the evidence is without conflict and leads only to a
conclusion contrary to the result of the postconviction court. Id. at 774.
Postconviction procedures do not afford a petitioner with a super-appeal, and not all
issues are available.
Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999).
Rather, subsequent collateral challenges to convictions must be based on grounds enumerated
in the postconviction rules. P-C.R. 1(1); Rouster, 705 N.E.2d at 1003.
If an issue was known and available, but not raised on direct appeal,
it is waived. Rouster, 705 N.E.2d at 1003. If it
was raised on appeal, but decided adversely, it is res judicata. Id.
(citing Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994)). If not
raised on direct appeal, a claim of ineffective assistance of trial counsel is
properly presented in a postconviction proceeding. Woods v. State, 701 N.E.2d 1208,
1215 (Ind. 1998). A claim of ineffective assistance of appellate counsel is
also an appropriate issue for postconviction review. As a general rule, however,
most free-standing claims of error are not available in a postconviction proceeding because
of the doctrines of waiver and res judicata. Some of the same
contentions, to varying degrees, may be properly presented in support of a claim
of ineffective assistance of trial or appellate counsel. Because Timberlakes direct appeal
raised a claim of ineffective assistance of trial counsel, we address the issues
Timberlake raises in this appeal primarily as claims of ineffective assistance of his
appellate counsel in presenting or omitting issues bearing on his claim of ineffective
trial counsel. We also address those free-standing claims that are not
barred by waiver or res judicata.
Timberlake claims that he was incompetent during his initial trial and, therefore, his
convictions and sentence must be reversed. The postconviction court held that this
issue was waived because it was not raised on direct appeal. The
postconviction court also noted that, before Timberlake was tried, two experts examined him
and determined him to be competent. The postconviction court found, Petitioner has
produced no credible evidence that the conclusions reached by trial counsels experts were
We agree with the postconviction court that the issue of Timberlakes competency at
trial was known and available on direct appeal and is therefore not available
as a freestanding claim in postconviction relief.
Rouster v. State, 705 N.E.2d
999, 1003 (Ind. 1999). In any event, Timberlake has not established that
he was incompetent at the time of trial. For that reason, to
the extent failure to present the competency issue is presented here as appellate
ineffectiveness, Timberlake does not establish the prejudice prong of Strickland v. Washington, 466
U.S. 668, 687, 694 (1984). For the same reason, Timberlake does not
fall into the unusual category recognized in Tinsley v. State, 260 Ind. 577,
298 N.E.2d 429 (1973). In Tinsley, this Court ordered an evidentiary hearing
on the issue of defendants competency. The defendant first challenged his competency
in a post-trial motion to correct error. In support of that motion
the defendant submitted a finding of incompetency in a guardianship proceeding. This
Court found that [i]n certain unique situations facts coming to light only after
the trial may be so significant and compelling as to create reasonable grounds
to question a defendants competency at the time of his trial and therefore
require a hearing on the question. Tinsleys unique situation is not presented
here. Timberlakes competency was questioned by his trial counsel and Timberlake was
examined by two doctors who concluded he was competent. Nor was there
a contemporaneous finding of incompetency from another court.
To be competent at trial, a defendant must be able to understand the
nature of the proceedings and be able to assist in the preparation of
his defense. Ind. Code § 35-36-3-1 (1998);
Brewer v. State, 646 N.E.2d
1382, 1384 (Ind. 1995). In this appeal Timberlake points to incidents from
more than ten years before his arrest, his conspiracy theories during his trial,
and post-trial medical testimony as evidence that he was incompetent at the time
of trial. The information about Timberlakes competency both before and after the
trial is relevant but far from conclusive of his competency at trial.
Competency is not a static condition. Cf. I.C. § 35-36-3-1. Given
the contemporaneous findings of two doctors that he was competent at the time
the postconviction courts finding that Timberlake has not established that he
was incompetent at trial is more than amply supported by the record, and
Timberlake fails to establish prejudice in counsels failure to present the issue on
On Direct Appeal
Timberlake also challenges his competency during the direct appeal. As a preliminary
matter, we note that it is not at all clear that competency is
required in a direct appeal. Cf. State v. White, 815 P.2d 869,
878 (Ariz. 1991), abrogated on other grounds by State v. Salazar, 844 P.2d
566 (Ariz. 1992); People v. Kelly, 822 P.2d 385, 414 (Cal. 1992); People
v. Newton, 394 N.W.2d 463, 466 (Mich. Ct. App. 1986), vacated on other
grounds by 399 N.W.2d 28 (Mich. 1987). The postconviction court made findings
on this issue as well. Specifically, the court found that evidence of
Timberlakes questionable competence was discovered after his appeal was decided, and, therefore, he
had already assisted, as much as possible, in his appeal. After the
opinion on direct appeal was issued in this case and while rehearing was
pending, his appellate attorney, Menadue, filed a motion to hold the appeal in
abeyance based on her perception that Timberlake was incompetent. At the time
that this motion was filed, the appeal had been decided after having been
fully briefed for fifteen months. That motion was denied by this Court.
We agree with the postconviction court that, even if competency is required for
a direct appeal, Timberlake has not shown that he was incompetent at the
relevant time. Menadues suspicions about Timberlakes competency were not raised until long
after she had filed his appellate briefs. Thus, even if Timberlake was
unable to assist with his defense at that time, the postconviction court was
correct in concluding that this presents no issue because the brief had already
been filed and the issues already raised. There was testimony from Dr.
Gelbort, a psychologist, that Timberlake was unable to assist in his defense at
the time Menadue filed her motion. But this claim, even if accepted,
does not establish his incompetency at the time his appeal was prepared and
At the Postconviction Relief Proceedings
Timberlakes postconviction counsel argue that mental illness prevented Timberlake from rationally consulting with
them, thus depriving him of a fair postconviction proceeding.
Timberlakes counsel filed
a motion to determine competency on August 2, 1999. Timberlake was examined
by several doctors and competency hearings were held on September 15, September 29,
and October 5, 1999. The postconviction court ruled that Timberlake was competent
to proceed. Timberlake sought to file an interlocutory appeal and moved to
stay the postconviction proceedings due to incompetence. This Court denied both motions.
The claim of incompetence in a postconviction proceeding presents two distinct issues: (1)
whether Timberlake was incompetent, or unable to assist his counsel in the preparation
of his case and to understand the nature of the postconviction proceedings, and
(2) whether competence, as that term is understood in cases addressing a defendants
due process rights at trial, is required in postconviction proceedings. The postconviction
court found against Timberlake on the first issue. Because we agree that
Timberlakes mental state did not render him unable to understand the nature of
the proceedings and assist in his defense, we affirm the trial courts ruling
on this point. We therefore leave for another day the States plausible
contention that competency is not required for postconviction proceedings. We observe, however,
that it surely is not an inflexible requirement. It cannot be the
case that in all circumstances an improperly convicted person has no remedy because
of his incompetence.
Cf. Jackson v. Indiana, 406 U.S. 715 (1972), revg
Jackson v. State, 253 Ind. 487, 255 N.E.2d 515 (1970).
The postconviction court did not address the second issue, but determined there was
[e]xtensive evidence . . . heard on this [first] issue, and Petitioner was
found competent to pursue post-conviction relief. His counsel report that Timberlake says
there is a machine that is able to monitor his words and thoughts
and has been used to kill other prisoners.
According to his attorneys,
Timberlake believes this machine to be the only issue relevant to his case,
and he will not cooperate with them if he does not find his
attorneys actions or strategic decisions relevant to exposing the machine. His counsel
contend that Timberlakes belief results from a mental disease that causes him to
see the world only through a deluded version of reality.
The postconviction court applied the familiar standard for trial competencythe ability to understand
the nature of the proceedings and assist in the preparation of his defenseas
the standard for competency to pursue postconviction relief.
See I.C. § 35-36-3-1(a);
Brewer, 646 N.E.2d at 1384. The court then held multiple hearings on
the issue and heard from four experts: Drs. Masbaum, Deaton, Crane, and Ochberg.
All four found that Timberlake understood the nature of the proceedings.
Two of the doctors, Masbaum and Crane, determined that, although Timberlake suffered from
delusions, he was competent to assist in his own defense. The other
two, Deaton and Ochberg, felt that Timberlake was delusional and could not cooperate
or work adequately with postconviction counsel. After hearing all the evidence, the
postconviction court determined that Timberlake was competent and made detailed findings as to
g. That the Court finds by its own observations that the Petitioner
was able to conduct himself in an appropriate manner and was able to
understand and comply with the commands and requests of the Court during the
Court proceedings. Such observations by the Court were consistent with the psychiatric
testimony presented in the cause. Further, the Court finds that Petitioner was
able to understand and follow the commands and requests of the Bailiffs and/or
Police Officers during Court proceedings. Finally, as set forth in the psychiatric
testimony, the Court finds that the Petitioner was able to understand and comply
with commands or requests of his counsels [sic].
h. That the Petitioner has shown an extensive knowledge and memory of
the proceedings and has also demonstrated that he is well versed in the
law. He is very exacting that statements found in pleadings and statements
in the courtroom be correct.
. . . .
i. Court finds that the Petitioner understands that he has been convicted
of a capital crime, that he was not successful on the appeal of
such conviction and that these proceedings are his last attempt to review this
case, and if he is not successful in this proceeding or if necessary
upon appeal, he will be executed.
Because Timberlake has not established that the evidence unmistakably points to a contrary
conclusion, he cannot prevail on this claim.
We conclude that the postconviction courts ruling on Timberlakes competency is supported by
this record, though no single item is conclusive. It seems clear that
Timberlake was able to understand the nature of the proceedings against him.See footnote
Second, although Timberlake may not have cooperated with his lawyers when he disagreed
with their strategies, he has not established that he was unable to assist
in his own defense. We have no basis to dispute his attorneys
contention that he was, and presumably is, an extremely difficult client. Nevertheless,
counsel were able to converse with him and provide an adequate postconviction review
of his convictions and sentence. Timberlakes postconviction counsel conducted a five-day hearing
with thirty-two witnesses and forty-eight exhibits. Some of these issues were those
that Timberlake was concerned about in a list of potential grounds for postconviction
relief. Timberlake even participated in some of the questioning by, for example,
writing questions for his counsel to ask witness McElroy. Although medical opinion
was divided on this point, two doctors also testified that Timberlake could assist
in his own defense.
In sum, although Timberlake was difficult and had outbursts, he was also able
to understand the nature of the proceedings and assist his counsel and the
court when need be. Given the evidence from the doctors that Timberlake
satisfied the trial competency standard, the almost one thousand pages of the evidence
on Timberlakes present medical state, the postconviction courts own observations and discussions, and
the deference we give to a trier of facts determination of competency, we
cannot say that the facts point unswervingly toward a result opposite the one
reached by the postconviction court.
See Matheney v. State, 688 N.E.2d 883,
893 (Ind. 1997).
II. Ineffective Assistance of Trial Counsel
For several reasons, Timberlake argues that this Court should revisit the issue of
trial counsel ineffectiveness that was addressed in the direct appeal.
N.E.2d at 259-61. First, Timberlake argues that some instances of trial counsel
ineffectiveness were not raised in the direct appeal and are therefore not barred
by res judicata and must be addressed now.
This issue was recently addressed by this Court in
Ben-Yisrayl v. State, 738
N.E.2d 253, 259 (Ind. 2000):
In Woods, we held that a defendant may raise a claim of ineffective
assistance of trial counsel for the first time in a post-conviction proceeding, but
we emphasized that once the defendant chooses to raise his claim of ineffective
assistance of trial counsel (either on direct appeal or post-conviction), he must raise
all issues relating to that claim, whether record-based or otherwise. 701 N.E.2d
at 1220. A defendant who chooses to raise on direct appeal a
claim of ineffective assistance of trial counsel is foreclosed from relitigating that claim.
Id. ([I]neffective assistance of trial counsel is not available in post-conviction if
the direct appeal raises any claim of deprivation of Sixth Amendment right to
counsel.). See also Bieghler v. State, 690 N.E.2d 188, 200-01 (Ind. 1997)
(Some of the [defendants arguments on post-conviction appeal] are new arguments about aspects
of trial counsels performance we considered on direct appeal; others focus on aspects
not mentioned earlier. In either case, the earlier ruling that trial counsel
was not ineffective is res judicata.); Sawyer v. State, 679 N.E.2d 1328, 1329
(Ind. 1997) ([The defendant], having once litigated his Sixth Amendment claim concerning ineffective
assistance of counsel, is not entitled to litigate it again, by alleging different
grounds.); Morris v. State, 466 N.E.2d 13, 14 (Ind. 1984) (Notwithstanding the fact
that petitioner gave several additional examples of his counsels alleged ineffectiveness during the
post-conviction hearing, a consideration of the ineffectiveness issue would constitute review of an
issue already decided on direct appeal.).
In his direct appeal, Timberlake raised, and this Court considered and rejected, a
claim of ineffective assistance of trial counsel.
Timberlake, 690 N.E.2d at 259-61.
Res judicata thus bars him from relitigating this issue in postconviction proceedings.
The postconviction court erred as a matter of law in considering the
merits of the defendants claim directly challenging trial counsels effectiveness.
III. Ineffective Assistance of Appellate Counsel
Second, Timberlake claims that trial counsel ineffectiveness should be revisited because the initial
decision was clearly erroneous. Because he does not explain how this Courts
decision was clearly erroneous, or present a cogent argument as to how this
case presents the extraordinary circumstance where the initial decision was clearly erroneous and
would work [a] manifest injustice necessary to avoid res judicata, this claim is
waived. Former Ind. Appellate Rule 8.3(A)7 (now App. R. 46(A)8); Conner v.
State, 711 N.E.2d 1238, 1247 (Ind. 1999).
Third, Timberlake claims that trial counsel worked on the direct appeal and, therefore,
the question of trial counsels ineffectiveness should have been postponed for postconviction relief
and is now available. For the reasons given in Part III of
this opinion, counsel in the direct appeal were not under an impermissible conflict
of interest in raising this claim and appellate counsels decision to raise trial
counsel ineffective assistance of counsel was not deficient performance. Therefore, this argument
fails as well.
Timberlake claims that his appellate counsel was ineffective for raising trial counsel ineffective
assistance of counsel on direct appeal when several of the instances of trial
counsel ineffectiveness needed information outside of the record and should have been preserved
for postconviction relief. Otherwise stated, he contends that Menadue unreasonably took the risk
of precluding undeveloped claims that remained and also raised claims that were not
supported by the record. He also raises claims based on issues that
were addressed on direct appeal, apparently challenging the appellate presentation of these issues.
The Elements of Appellate Ineffectiveness
A defendant claiming a violation of the right to effective assistance of counsel
must establish the two components set forth in Strickland v. Washington, 466 U.S.
668 (1984); accord Williams v. Taylor, 529 U.S. 362, 390-91 (2000). First,
the defendant must show that counsels performance was deficient. Strickland, 466 U.S.
at 687. This requires a showing that counsels representation fell below
an objective standard of reasonableness, id. at 688, and that the errors were
so serious that they resulted in a denial of the right to counsel
guaranteed the defendant by the Sixth Amendment, id. at 687. Second, the
defendant must show that the deficient performance prejudiced the defense. Id.
To establish prejudice, a defendant must show that there is a reasonable probability
that, but for counsels unprofessional errors, the result of the proceeding would have
been different. Id. at 694. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id.
Counsel is afforded considerable discretion in choosing strategy and tactics, and we will
accord those decisions deference. Id. at 689. A strong presumption
arises that counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Id. at 690. 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. 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); Ingram v. State, 508 N.E.2d 805, 808 (Ind. 1987). The two prongs
of the Strickland test are separate and independent inquiries. Thus, [i]f it
is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice . . . that course should be followed. Williams
v. State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting Strickland, 466 U.S. at
This Court has recognized three categories of alleged appellate counsel ineffectiveness: (1)
denying access to an appeal, (2) failing to raise issues, and (3) failing
to present issues competently.
Bieghler, 690 N.E.2d at 193-95. When the
claim of ineffective assistance is directed at appellate counsel for failing fully and
properly to raise and support a claim of ineffective assistance of trial counsel,
a defendant faces a compound burden on postconviction. The postconviction court must
conclude that appellate counsels performance was deficient and that, but for the deficiency
of appellate counsel, trial counsels performance would have been found deficient and prejudicial.
Thus, Timberlakes burden before the postconviction court was to establish the two
elements of ineffective assistance of counsel separately as to both trial and appellate
counsel. Ben-Yisrayl v. State, 738 N.E.2d 253, 261-62 (Ind. 2000).
As a preliminary matter, Timberlakes claim of ineffective assistance of appellate counsel appears
to consist of several parts and subparts: (1) appellate counsel was ineffective
for raising trial counsel ineffectiveness in the direct appeal (a) by reason of
participation of trial counsel in the appeal and (b) for having raised the
issue at all; (2) appellate counsel was ineffective in raising shortcomings of trial
counsel in the guilt phase by either (a) not raising claims or (b)
not adequately supporting them; and (3) appellate counsel was ineffective in presenting trial
counsels errors in the penalty and sentencing phases, either by (a) not raising
claims or (b) not adequately supporting them.
1. Appellate Ineffectiveness for Raising Ineffective Assistance of Trial Counsel
Timberlake first claims that appellate counsel was ineffective for raising trial counsels ineffectiveness
on direct appeal because one of the trial attorneys, Ellen OConnor, was also
appellate counsel. Timberlake claims that this created a conflict of interest that
requires review of this contention under the standard set forth in Cuyler v.
Sullivan, 446 U.S. 335 (1980), for claims of conflicted counsel. The postconviction
court found, Trial counsel Ellen OConnor was originally appointed as co-counsel because of
her relationship with Petitioner, but Menadue asked OConnor to withdraw her appearance, which
OConnor did, before the briefs were written. OConnor did not participate in
the writing or review of the appellate briefs. Although OConnors motion to
withdraw was denied by this Court, the postconviction courts finding of no actual
conflict of interest is supported by testimony from both Menadue and OConnor that
OConnor did not write or review the appellate brief. That finding is
not clearly erroneous and eliminates the factual predicate of this contention.
Timberlake also argues that appellate counsel was ineffective for raising three grounds of
trial counsel ineffective assistance of counsel in the direct appeal: (1) failure
to confront McElroy with evidence challenging his credibility, (2) failure to present mitigation
evidence at the penalty phase, and (3) failure to present and argue mitigation
at the sentencing phase. He argues that these claims should have been
preserved for postconviction because there was not an adequate record on direct appeal
to establish prejudice. The postconviction court did not directly address this contention,
but observed that Timberlake argued that these claims of ineffective trial assistance were
raised on appeal without sufficient investigation.
To prevail on this claim, Timberlake must show not only that appellate counsel
performed deficiently by raising these claims on direct appeal, but also that evidence
established in postconviction relief would have proved trial counsels ineffectiveness. Because Timberlake
has failed to establish deficient performance by his appellate counsel, he has not
satisfied his burden.
At the time of Timberlakes direct appeal,
Woods v. State, 701 N.E.2d 1208
(Ind. 1998), had not been decided. Appellate counsel Menadue testified that the
case law in Indiana was not crystal clear as to when ineffective assistance
of trial counsel should be raised. Indeed, in Woods we acknowledged this
ambiguity: Despite the frequency with which challenges to the effectiveness of trial
representation appear in postconviction petitions in this State, this Court has not conclusively
resolved whether waiver of this claim (1) always arises from a failure to
raise it on direct appeal, or (2) never does, or (3) turns on
whether there was or might have been a need for extrinsic evidence to
assess either attorney competence or prejudice. Id. at 1213. Menadue testified
in postconviction relief that she concluded that she was required to raise the
trial counsel ineffectiveness claims that appeared on the face of the record or
risk waiver of these claims. Menadue raised the issue of trial counsel
ineffective assistance of counsel on direct appeal after consultation with Timberlakes trial counsel
and investigation staff and several other attorneys. She faced the choice of
either raising the claims on direct appeal without the benefit of extensive extra-record
research or risking waiver. Although in hindsight, her decision may not have
been the best one, that is not the standard by which we evaluate
her actions. As this Court has stated, Judicial scrutiny of counsels performance
is highly deferential and should not be exercised through the distortions of hindsight.
Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995). Judged by
this standard, Menadues decision did not fall below an objective standard of reasonableness.
Appellate Ineffectiveness as to Guilt Phase Claims
a. Failure to Present Evidence, Argument, or Instructions on Intoxication
Timberlake also argues that appellate counsel was ineffective for failing to raise trial
counsels ineffectiveness for not pursuing an intoxication defense. The postconviction court addressed
this as an issue of trial counsel ineffective assistance of counsel and found
that trial counsel was not ineffective for failing to pursue an intoxication defense
because it was inconsistent with Timberlakes principal claim that he was not the
shooter. Moreover, there was evidence that Timberlake drank both before and after
the shooting, making any conclusions about his intoxication level at the time of
the murder highly speculative.
Appellate counsel did not raise this issue on appeal. Therefore, this claim
is reviewed as a
Bieghler type two issue, that is, failure to present
an issue. This Court has noted several times the need for a
reviewing court to be deferential to appellate counsel on this issue:
[T]he reviewing court should be particularly sensitive to the need for separating the
wheat from the chaff in appellate advocacy, and should not find deficient performance
when counsels choice of some issues over others was reasonable in light of
the facts of the case and the precedent available to counsel when that
choice was made.
Bieghler, 690 N.E.2d at 194. This Court has approved of the two-part
test used by the Seventh Circuit to evaluate these claims: (1) whether
the unraised issues are significant and obvious from the face of the record
and (2) whether the unraised issues are clearly stronger than the raised issues.
Id. (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).
Otherwise stated, to prevail on a claim of ineffective assistance of appellate
counsel, a defendant must show from the information available in the trial record
or otherwise known to appellate counsel that appellate counsel failed to present a
significant and obvious issue and that this failure cannot be explained by any
reasonable strategy. Ben-Yisrayl, 738 N.E.2d at 260-61.
Menadue filed a 154-page brief and raised twenty-eight issues. She thoroughly reviewed
the record and interviewed trial counsel and other members of Timberlakes legal team
before choosing what issues to raise on appeal. She was not deficient
for failing to raise this issue because it was neither significant nor carried
a reasonable probability of success. Although there was evidence that Timberlake was
intoxicated at the time of the murder, he has not established that this
defense would have had a reasonable probability of success at trial. Under
the law at the time, in order to succeed on a defense of
voluntary intoxication, the intoxication had to be so severe as to preclude the
defendants ability to form the requisite mens rea.
Ferguson v. State, 594
N.E.2d 790, 792 (Ind. 1992). Evidence that the defendant could plan, operate
equipment, instruct the behavior of others, carry out acts requiring physical skill, disengage
and leave the scene, and find his way to a friends home seeking
aid show that his intoxication was not so great as to relieve him
from responsibility for his acts. Id. (citing Hughett v. State, 557 N.E.2d
1015, 1017-18 (Ind. 1990)). Here, Timberlake was able to shoot Greene, flee
the scene of the crime, and then phone for assistance. There was
no reasonable probability that the defense would have succeeded at trial.
Timberlakes argument fails for a second reason as well. We think it
is clear that trial counsel was not deficient for failing to raise Timberlakes
intoxication at the guilt phase. Timberlakes defense was that McElroy did the
shooting. Trial counsels decision not to pursue a voluntary intoxication defense was
a reasonable professional decision to avoid seemingly inconsistent defenses. Because trial counsel
was not deficient, appellate counsel cannot be deficient for failing to raise this
b. Failure to Raise Trial Counsels Cross-Examination of Hood
Timberlake also challenges the handling of State witness Roy Hood. Hood was
a passing motorist who claimed to have seen a man fitting Timberlakes description
shoot Greene. Before trial, Hood made several inconsistent statements about the incident.
At the postconviction relief proceeding, Hood testified that when he saw Greene,
he had already been shot. Also, at the postconviction relief hearing, a
coworker of Hoods testified that Hood had told specific lies to him and
was a liar with a bad reputation in the community. The postconviction
court again addressed this issue only in terms of ineffective assistance of trial
counsel: [T]rial counsel was intimately familiar with the States case and witnesses and
manyif not allsignificant witnesses were deposed by trial counsel. Petitioner cannot show
that trial counsel performed deficiently in this regard.
Because appellate counsel did not raise this issue on appeal, it again presents
Bieghler type two issue. Therefore, Timberlake must show from the information
available in the trial record or otherwise known to appellate counsel that appellate
counsel failed to present a significant and obvious issue and that this failure
cannot be explained by any reasonable strategy. Ben-Yisrayl, 738 N.E.2d at 260-61.
This issue does not appear to be a significant and obvious one.
In any event, it would not have established trial counsel ineffectiveness.
Although Hood was not questioned at trial about all the inconsistencies discovered by
postconviction investigation, trial counsel did cross-examine Hood on several discrepancies in his statements.
As we noted in the direct appeal: As defendant made clear
during his cross-examination of Hood, there were inconsistencies. However, the basic points
of his testimony remained the same and were corroborated by others. Timberlake,
690 N.E.2d at 253 n.1. We cannot say that the postconviction evidence
unmistakably and unerringly points to a conclusion contrary to the postconviction courts on
the issue of trial counsels performance in this respect. Furthermore, Timberlake has
not established that appellate counsel was deficient based on the information available to
herwhich did not include information on Hoods reputation for dishonestyat the time of
the direct appeal. Because Timberlake has established neither deficient performance nor prejudice
on this point at the trial level, this issue was not an obvious
one which appellate counsel was deficient for failing to raise.
Inadequate Presentation of Trial Counsels Cross-Examination of McElroy
Timberlake claims that appellate counsel ineffectively raised trial counsels ineffectiveness in failing to
cross-examine McElroy. Menadue challenged trial counsels handling of McElroy, Timberlake, 690 N.E.2d
at 260, but Timberlake now claims that she was ineffective in her handling
of this claim because the postconviction record established that McElroy was under the
influence of anti-psychotic drugs, was undergoing counseling, and had been threatened with the
death penalty, all of which may have affected his perceptions on the day
of the shooting and were not presented in her claim of trial counsel
ineffective assistance of counsel. The postconviction court found this claim to be
res judicata as to trial counsel ineffective assistance of counsel and did not
address it as to appellate ineffective assistance of counsel.
This claim asserts a type three
Bieghler error. This Court observed that
[c]laims of inadequate presentation of certain issues, when such were not deemed waived
in the direct appeal, are the most difficult for convicts to advance and
reviewing tribunals to support. Bieghler, 690 N.E.2d at 195 (emphasis in original).
These claims are reviewed under the highest standards of deference to counsels
performance and relief will be awarded only where the appellate court is confident
it would have ruled differently. Id. at 196.
We do not believe that Timberlake has established either prong of the
test with respect to this claim. Menadues failure to include evidence of
McElroys medications in her challenge to trial counsels handling of his cross-examination does
not rise to the level of deficient performance given the role and function
of appellate counsel on direct appeal. First, Menadue cannot be measured by
information unknown to appellate counsel but later developed after the appeal by post-conviction
counsel. Ben-Yisrayl, 738 N.E.2d at 261. Second, McElroy was questioned extensively
at trial and at postconviction and his version of events never changed with
respect to his identification of Timberlake. Timberlake, 690 N.E.2d at 252 (McElroy
did not waver in his identification of defendant as the shooter, nor was
his testimony unsupported by other witnesses or circumstantial evidence. The jury was
aware of the inconsistencies and was faced with the responsibility of judging the
credibility of the witnesses and determining what occurred.). Finally, the record challenging
this omission does not establish a reasonable probability that McElroys perception was clouded.
The postconviction evidence therefore does not establish a reasonable probability of a
different result. Because Timberlake did not establish trial counsel ineffectiveness on this
point, he cannot establish that appellate counsel was ineffective for inadequate presentation of
Appellate Counsels Failure to Raise Trial Counsels Ineffectiveness as to Penalty
Timberlake also challenges appellate counsels handling of trial counsels performance during the penalty
and sentencing phases.
Failure to Present Evidence, Argument, or Instructions on Intoxication
Timberlake first argues that appellate counsel was ineffective for failing to raise trial
counsels ineffectiveness in not presenting any evidence, argument, or instructions on intoxication at
the penalty and sentencing phases. Although the postconviction court did not address
the intoxication issue specifically, it did note that appellate counsel was not ineffective
for failing to raise eighteen specific claims of ineffective assistance of trial counsel
because Timberlake cannot show that these alleged errors of trial counsel denied him
a fair trial.
This claim was not raised in the direct appeal, and is thus a
Bieghler type two issue. As we noted earlier, reviewing courts are particularly
deferential to appellate counsels decisions on what issues to raise. Using the
two-part test from Bieghler, it is clear that although the issue of intoxication
was obvious from the face of the record, it is not clearly stronger
than the issues raised by appellate counsel. Menadue raised twenty-eight issues in
her appellate brief, including that trial counsel was ineffective at all three phases
of the trial. She also raised four instances of ineffectiveness in the
guilt phase, including trial counsels failure to present mitigation evidence. Although intoxication
may be a mitigating factor, this Court does not require it to be
considered. See Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997).
As already noted, Timberlake was able to fire a gun, escape, and place
a telephone call for help. We cannot say that it was unreasonable
to raise the arguments that were presented in lieu of a claim of
trial ineffectiveness based on inadequate presentation of intoxication as mitigation.
Appellate Counsels Handling of Trial Counsels Failure to Present Any Mitigation
Evidence at Penalty Phase
Timberlake claims that appellate counsel ineffectively presented trial counsels ineffectiveness for failure to
present mitigation evidence at the penalty phase. Specifically, Timberlake claims that trial
counsel was ineffective for failing to subpoena any witnesses for the penalty phase
and for failing to present expert witnesses, and that this led to the
presentation of no mitigation evidence.
Menadue raised this issue in the direct appeal and this Court concluded that
trial counsel may have reasonably concluded that to argue any mitigation evidence would
be ineffective and would open the door to damaging rebuttal.
N.E.2d at 261. The postconviction court, in addressing this issue as one
of trial counsel ineffectiveness, stated that [t]here can be no question that trial
counsel also conducted a proper mitigation investigation[,] effectively investigated the strength of the
States request for the death penalty[,] and presented the most appropriate defense to
that request, given the facts of the Petitioners crime and his lengthy criminal
Under the deferential standard of review of this claim, Timberlake has failed to
establish his claim of appellate counsel ineffective assistance of counsel for two reasons.
First, he has not established that Menadues handling of the issue on
direct appeal was deficient. From the information known to Menadue and available
in the record, she cannot be deficient for failing to contend that the
lack of subpoenas was the cause of the deficient performance. This information
only became available in postconviction relief, and, thus, is not relevant to her
performance. Furthermore, because the lack of mitigation evidence was ascertainable from the
record, Menadue did not err in raising this issue on direct appeal.
See Part III.A.
Second, Timberlake has not established that there was prejudice from trial counsels failure
to present mitigation evidence and, therefore, any prejudice from appellate counsels performance.
The death penalty aggravator in this case is Indiana Code section 35-50-2-9(b)(6), the
killing of a police officer in the course of duty. As we
have previously noted,
The killing of a police officer in the course of duty is a
most serious crime. Police officers routinely risk their lives in the sometimes
high stakes gamble of protecting society. They do a job that we
all want and need done, though few of us possess the bravery and
skill to do. They ask for little in return, but they do
ask for some protection. The General Assembly recognized this in enacting the
statutory aggravator of Indiana Code § 35-50-2-9(b)(6). The seriousness of this aggravator
is magnified in the present case due to defendants use of such deadly
force to kill an unaware and unsuspecting police officer in an otherwise nonviolent
and ordinary arrest.
Lambert v. State, 675 N.E.2d 1060, 1066 (Ind. 1996) (citations omitted). Although
trial counsel could have presented evidence of Timberlakes difficult childhood and substance abuse
problems, this evidence has previously been held to be not very weighty.
See Coleman v. State, 741 N.E.2d 697, 700 (Ind. 2000); Peterson v. State,
674 N.E.2d 528, 543 (Ind. 1996). In this case, Timberlake shot a
police officer for no apparent reason after the officer had allowed Timberlake to
go free. This situation is, if anything, more egregious than Lambert, where
the defendant had been arrested by the police officer he killed. Furthermore,
Timberlakes mitigation evidence was that his family was poor, his parents were alcoholics,
and Timberlake had a problem with alcohol. Although Timberlakes father was physically
abusive, the evidence is not nearly as disturbing as that presented in Coleman.
As in this case, Colemans counsel presented no mitigating evidence, but relied
instead on a general religious and moral argument against the death penalty and
a request for mercy. We concluded that:
Taking into consideration all the evidence, both presented and omitted, and our
previous holdings that a difficult childhood carries little mitigating weight, we conclude that
it is extremely unlikely that the sentencing result would have been different had
Colemans trial counsel presented credible evidence of Colemans childhood abuse and neglect.
Because we find no reasonable probability that Coleman would have avoided a death
sentence based on the omitted evidence, Colemans claim of IAC at the penalty
and sentencing phase of his trial fails under the second prong of
Coleman, 741 N.E.2d at 703.
IV. Postconviction Court Bias
Given the minor weight of the mitigators and the aggravator present in this
case, there is not a reasonable probability that the jury would have found
the mitigators to outweigh the very weighty aggravator. Because appellate counsel was
not deficient and there was no trial court prejudice, Timberlake fails on this
c. Failure to Present Any Mitigation Evidence at Sentencing Phase
Timberlake also challenges appellate counsels presentation of trial counsels failure to present mitigation
evidence in the sentencing phase. Appellate counsel raised this issue on direct
appeal, and for the same reasons discussed above in Part III.B.3.b, Timberlake fails
on this claim as well.
Finally, Timberlake claims that he was deprived of his due process right to
a fair and disinterested tribunal because of bias on the part of Judge
The law presumes that a judge is unbiased and unprejudiced.
Edwards, 694 N.E.2d 701, 711 (Ind. 1998); Smith v. State, 535 N.E.2d 1155,
1157 (Ind. 1989). Our Judicial Code provides that when a judges impartiality
might be reasonably questioned because of personal bias against a defendant or counsel,
a judge is to recuse himself. Ind. Judicial Conduct Canon 3(E)(1)(a); accord
Edwards, 694 N.E.2d at 710. The test for determining whether a judge
should recuse himself or herself under Judicial Canon 3(E)(1) is whether an objective
person, knowledgeable of all the circumstances, would have a reasonable basis for doubting
the judges impartiality. Edwards, 694 N.E.2d at 711. Timberlake has not
satisfied this test.
Ex Parte Communications
Timberlake argues that Judge Nation engaged in an ex parte communication with Dr.
Masbaum, an expert witness, in violation of Judicial Canon 3(B)(8). Generally, the
Code of Judicial Conduct prohibits a judge from engaging in ex parte conversations
that relate to pending proceedings. Jud. Canon 3(B)(8); accord Bell v. State,
655 N.E.2d 129, 131 (Ind. Ct. App. 1995). An exception to this
general rule is found under Judicial Canon 3(B)(8)(a), which permits ex parte communications
for scheduling, administrative purposes, or emergencies that do not deal with substantive matters
of a pending case. Under this exception, the judge must: (1)
reasonably believe that no party will gain a procedural or tactical advantage and
(2) promptly notify all other parties of the substance of the ex parte
communication and allow an opportunity to respond. James v. State, 716 N.E.2d
935, 940-41 (Ind. 1999).
On September 28, 1998, Masbaum conducted an initial examination of Timberlake. On
August 30 and September 2, 1999, Timberlake filed objections to the participation of
Masbaum. Judge Nation contacted Masbaum and informed him of the objections against
and provided Masbaum with a copy of these proceedings. These objections
were discussed in a hearing on September 2, and were overruled. In
an order on that hearing, Judge Nation stated:
The Petitioners request to exclude Dr. Masbaum as a Court appointed psychiatrist is
hereby denied on the grounds that there has been insufficient evidence presented to
this Court to show any impropriety which may exclude Dr. Masbaum from such
examination. The Court advised the parties that Court staff will contact Dr.
Masbaum to determine whether he would wish to serve in such capacity and
the parties should be advised that Dr. Masbaum has agreed to continue as
the Court appointed psychiatrist.
During Masbaums second interview with Timberlake he determined that Timberlake was competent.
Timberlake claims that the trial judges ex parte communications with Masbaum prejudiced him
because they led to a different diagnosis.
Judge Nations communication with Masbaum falls under the ministerial exception to the bar
on ex parte communications. Under the
James test, Judge Nation reasonably believed
that neither side gained a tactical advantage and notified both parties of the
communications. Therefore, this communication does not present a reasonable basis for doubting
Judge Nations impartiality.
Interference in Attorney-Client Relationship
Timberlake also alleges that Judge Nation was biased and damaged the attorney-client relationship
between Timberlake and his counsel. As examples of how Judge Nation damaged
the attorney-client relationship, Timberlake points to the trial judges handling of the competency
issue, comments to Timberlake, and allowing evidence of the machine to be admitted
and discussed. As a preliminary matter, we note that Timberlake cites no
authority for this proposition. Turning to the first allegation, Timberlake contends that
Judge Nation undermined Timberlakes confidence in his attorneys by requiring them to raise
the competency issue. It appears that Judge Nation handled the issue as
he did because he believed it was the correct legal procedure. Client
disagreements with counsel often arise as a result of court rulings. We
see no basis for a claim that the judge attempted to interfere with
Timberlakes attorney-client relationship.
Judge Nations handling of Timberlake, including comments about Timberlakes understanding of events and
investigation of the machine, also do not support his claim of bias.
Judge Nation appears to have done his best to deal with a difficult
defendant and to ensure that his rights were being protected.
None of the claimed actions by Judge Nation are responsible for a breakdown
in the attorney-client relationship or constitute proof of bias. In fact, when
ruling on Timberlakes counsels motion to withdraw, the trial judge praised postconviction counsel:
I know that he is a difficult client, in that, he has
a strong opinion as to what he feels needs to be in the
record or what witnesses need to be called. Its obvious that you
disagree with him concerning some of these directions. But from the standpoint
of the Court, I think youre veryboth of you are very good counsel.
Timberlake has not established that there was a reasonable basis for challenging
Judge Nations impartiality.
Refusal to Medicate
Finally, Timberlake claims that Judge Nation was biased when he refused to order
any medication for Timberlake. Timberlakes counsel filed a motion requesting that he
be treated. Judge Nation denied this request. Timberlake claims that this
denial illustrates the judges bias against Timberlake in light of the medical evidence
that Timberlake was psychotic.
As a preliminary matter, we again note that Timberlake cites no authority for
this proposition. Judge Nation held a lengthy hearing on the issue of
Timberlakes competency and then determined that Timberlake was competent to proceed without medical
treatment. Timberlake himself stated several times that he wanted no medication.
Because we cannot say that this finding is clearly erroneous,
see Part I,
Judge Nations decision to deny medication does not appear to reasonably question his
The judgment of the postconviction court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Although Timberlake now challenges these findings as unreliable, he does not carry
his burden of establishing that they were incorrect. Two doctors testified at
the postconviction proceedings. One doctor called the findings of the reports created before
the trial suspect. Another testified that the reports could not be analyzed
without viewing the raw data used to create them. As the postconviction
court found, this testimony, even if fully accepted, does not establish Timberlakes incompetency
Postconviction counsel also argue that they were unable to investigate, prepare, and
present any type of cogent postconviction petition on behalf of Mr. Timberlake.
To the extent this is an argument concerning Timberlakes competency, it is addressed
below. To the extent it is an argument concerning counsels own ineffectiveness,
it cannot be raised. Etienne v. State, 716 N.E.2d 457, 463 (Ind.
The postconviction court found that [t]here is no machine that monitors Petitioners
mind and/or controls his thoughts.
The final findings were in significant part adopted from the States proposed
findings, but the record does not suggest this is true of the findings
as to competency.
All four doctors agreed on this point. This can also be
seen from Timberlakes activities. The issues he discussed as potential grounds for
postconviction relief demonstrated that Timberlake understood the nature of the proceedings and could
assist his attorneys. Although his list contained numerous references to the machine,
Timberlake also challenged appellate counsels focus on his sentencing when he believed that
the guilt phase was more important. He identified issues with the cross-examination
of McElroy. As one of the doctors observed, Timberlake understood who his
attorneys were and expressed dissatisfaction with one of them, understood that there had
been a judge change, and had a file full of legal documents pertaining
to his situation. The postconviction court observed that Timberlake, although occasionally unruly,
was generally able to follow commands and conduct himself in court. Several
times throughout the proceedings, Timberlake discussed the case and took note of the
relevant proceedings, including that his competency has been decided four times.
Timberlake also argues that intoxication could have served as a defense to
the mental state required to make [his] murder conviction eligible for the death
penalty. His death penalty eligibility was based on killing an officer acting
in the course of duty. For the same reasons a defense of
intoxication would have failed under the circumstances of this case, there is not
a reasonable probability that intoxication would have succeeded as a defense to the
mens rea requirement of the death penalty aggravating circumstance.
Testimony at the postconviction proceeding established that McElroy had taken two Mellarill
pills the day of the shooting, was undergoing counseling, and had been on
anti-psychotic medication when he was incarcerated shortly before the shooting.
Coleman offered testimony, inter alia, that his mother was a gambler and a
prostitute who starved, beat & hustled her children. Coleman spent most of
his childhood in conditions of squalor, living with a grandmother who practiced voodoo
and who told Coleman that his mother had discarded him in a trash
can when he was born. The grandmother verbally vilified and physically beat
Coleman. She addressed him by his widely-known nickname Pissy because Coleman had
bedwetting problems through his early teens.
Coleman, 741 N.E.2d at 701 (citations omitted).
It is not entirely clear what this contact entailed. The only
testimony on this point is from a competency hearing in which defense counsel
asked Masbaum: [S]o you wereokaydid there come another occasion you were aware,
or see any pleadings in reference to that matter? Masbaum responded, Well,
the Judgeuhindicated to me that I wasthat there was a pleading to take
me off the case. Thats what I understood.