ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Karen Freeman-Wilson
Public Defender of Indiana Attorney General of Indiana
Thomas C. Hinesley Andrew L. Hedges
Deputy Public Defender Deputy Attorney General
Barbara S. Blackman
Deputy Public Defender
INDIANA SUPREME COURT
CHRISTOPHER M. STEVENS )
Appellant (Petitioner Below), )
v. ) No. 79S00-9804-PD-00250
STATE OF INDIANA )
Appellee (Respondent Below). )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable George J. Heid, Judge
Cause No. 79D02-9402-CF-24
On Appeal from the Denial of Post-Conviction Relief
June 26, 2002
In 1995, Christopher M. Stevens was convicted of the 1993 murder of ten-year-old
Zachary Snider. In accord with the jury's recommendation, the trial court ordered
the death sentence. This Court affirmed the conviction and sentence on direct
appeal. Stevens v. State, 691 N.E.2d 412 (Ind. 1997), cert. denied, 575
U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998). The defendant thereafter
petitioned for post-conviction relief. After extensive proceedings and the presentation of evidence,
the post-conviction court denied his petition. He now appeals from the denial
of post-conviction relief. The factual details of the offense are detailed in
our opinion on direct appeal. Id. at 416-420. We affirm the
denial of post-conviction relief.
The defendant enumerates seven issues presented for review. We regroup them as
follows: (1) ineffective assistance of trial counsel; (2) governmental interference with the
right to counsel; (3) ineffective assistance of appellate counsel; (4) unreliability and unconstitutionality
of the death sentence; (5) incomplete, unfair, and biased post-conviction relief adjudication.
Defendants who have exhausted the direct appeal process may challenge the correctness of
their convictions and sentences by filing a post-conviction petition. Langley v. State,
256 Ind. 199, 203, 267 N.E.2d 538, 540 (1971). Post-conviction proceedings are
civil proceedings, and a defendant must establish his claims by a preponderance of
the evidence. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000).
Because the defendant is now appealing from a negative judgment, to the extent
his appeal turns on factual issues, he must convince this Court that the
evidence as a whole leads unerringly and unmistakably to a decision opposite that
reached by the post-conviction court. See Timberlake v. State, 753 N.E.2d 591,
597 (Ind. 2001). In other words, the defendant must convince this Court
that there is no way within the law that the court below could
have reached the decision it did. Spranger v. State, 650 N.E.2d 1117,
1120 (Ind. 1995). We do not defer to the post-conviction court's legal
conclusions, but do accept its factual findings unless they are "clearly erroneous."
Ind.Trial Rule 52(A); Conner v. State, 711 N.E.2d 1238, 1245 (Ind. 1999); 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). As we recently stated in Timberlake:
Post-conviction 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 post-conviction 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 post-conviction 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 post-conviction review. As a general rule, however, most
freestanding claims of error are not available in a post-conviction proceeding because of
the doctrines of waiver and res judicata.
753 N.E.2d at 597-98. Furthermore, any "[i]ssues not raised in the petition
for post-conviction relief may not be raised for the first time on post-conviction
appeal." Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001)(citing Ind.Post-Conviction Rule
1(8)("All grounds for relief available to a petitioner under this rule must be
raised in his original petition.")); Howard v. State, 467 N.E.2d 1, 2 (Ind.
1984)("It is well settled that issues which are not raised either at the
trial level, on appeal, or in a post-conviction petition are waived."). 1. Ineffective Assistance of Trial Counsel
The defendant contends that deficiencies in his trial representation created a reasonable probability
that the results of both the guilt phase and sentencing phase would have
been different. In this appeal, he asserts numerous claims of alleged errors
of trial counsel.
To succeed before the fact finder on his claim of ineffective assistance of
counsel, the defendant needed to prove by a preponderance of the evidence not
only that his trial counsel's representation fell below an objective standard of reasonableness,
but also that his counsels' errors were so serious as to deprive him
of a fair trial because of a reasonable probability that, but for counsel's
unprofessional errors, the result would have been different. See Bell v. Cone,
___ U.S.___, 122 S.Ct. 1843, 1846, ___ L.Ed.2d ___ (2002); Williams
v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389,
416 (2000); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674, 693 (1984); Woods v. State, 701 N.E.2d 1208, 1224 (Ind.
1998). A reasonable probability is a probability sufficient to undermine confidence in
the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80
L.Ed.2d at 698. In determining whether a defendant proves his claim of
ineffective assistance of counsel, the fact-finding court is guided by various important guidelines.
There is a strong presumption that counsel rendered adequate 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. Counsel is afforded
considerable discretion in choosing strategy and tactics, and these decisions are entitled deferential
review. Id. at 689, 104 S.Ct. 2065, 80 L.Ed.2d at 694.
Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily
render representation ineffective. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001);
Timberlake, 753 N.E.2d at 603.
a. Inadequate Investigation
The defendant first asserts that his two attorneys at trial failed to conduct
a reasonable investigation into the facts and the law of his case.
He alleges that they failed to timely begin their investigation, to pursue indicated
avenues of investigation, to determine necessary expert consultation, to adequately pursue funding for
experts and investigation, and to competently hire and assess the one mental health
expert they did hire. The defendant asserts that his trial counsel failed
to develop a coherent theory of the case that was legally and factually
supported and inherently consistent across the guilt and penalty phases. He maintains
that, had his counsel conducted a reasonable investigation, they would have uncovered evidence
of his mental illness and substance abuse relevant both to the guilt and
penalty phases of his trial.
The post-conviction court concluded that defense counsel "adequately investigated the facts and law
related to the guilt phase of [the defendant's] trial," Record
See footnote at 710, and
that counsel were "not ineffective for failing to timely seek and secure necessary
and appropriate investigative and expert assistance during the trial."
The defendant was represented at trial by two attorneys who were found to
meet the heightened criteria of experience and training required for appointment in capital
See footnote Trial Record at 59. They confronted a significant challenge.
The defendant had admitted to a family member that he killed Zachary Snider
and disclosed where he had concealed the body. After his arrest, the
defendant admitted in a videotaped confession that he had repeatedly molested the ten-year
old boy and then killed him, first attempting to do so by suffocating
him with a pillow, then by strangling him with a cord, and finally
by suffocating him by wrapping a trash bag over his head. This
crime occurred while the defendant was on probation for a prior conviction of
The defendant's trial attorneys sought and obtained funds to hire a mitigation investigator,
fact investigator, paralegal, and psychologist, and all billings were ordered sealed. The
mitigation investigator had served as a sentencing consultant and mitigation investigator for nine
years prior to the defendant's trial and had completed the Indiana Public Defender
Council's death penalty mitigation training course. The psychologist, Dr. Lawrence Lennon, examined
Stevens and later testified for the defense during the penalty phase of the
trial. Dr. Lennon had been recommended by the mitigation investigator. Other
members of the criminal defense community also told Stevens's attorneys that Dr. Lennon
had done a "very nice job" in testifying in another death penalty case.
Dr. Lennon holds a Ph.D. in clinical Psychology from Miami University in
Ohio. He was a psychology professor at St. Joseph's College, where he
spent four years as the chair of the Psychology Department, and was clinical
director of the Child and Adolescent Psychiatric Center at Humana Hospital in Indianapolis
from 1991 to 1994. Dr. Lennon conducted a preliminary evaluation of the
defendant prior to April 13, 1994 and met with him five times from
June through December 1994. Dr. Lennon also met with the defendant's parents
and siblings, and reviewed school records, records from the Hamilton Center, and arrest
records. Other individuals from Dr. Lennon's office, including a social worker and
another psychologist, participated in evaluations of the defendant. Defense counsel considered Dr.
Lennon a good fit because of his expertise in treating children and adolescents,
and the defendant's attorneys sought and received a transcript of Dr. Lennon's testimony
in a case the attorneys felt had similar issues. The defendant's trial
counsel sought discovery and filed multiple pretrial motions and supporting briefs, including motions
to suppress, motions in limine, motions to dismiss, and a motion for change
The defendant claims, in part, that his counsel unreasonably delayed their investigation.
Stevens was tried for murder in January 1995, within seventeen months of his
arrest in July 1993. Defense counsel entered their appearances in August 1993.
In November 1993 counsel made their first request for funding for experts.
This request was granted in May 1994 along with funds for an
See footnote Funding for mitigation investigation was secured in January 1994, and a
mitigation specialist joined the defense. Defense counsel periodically requested additional amounts for
the mitigation, fact, and expert witnesses. Such funding requests were approved.
Billing records indicate that information was being gathered, procedural issues were being worked
out with the prosecutor and the court, and research was being done on
legal issues during the three months before the first funding request. Supp.
Record at 25-29. Because of successful motions for continuance, Stevens was not
tried until seven months after the time counsel added the psychologist and the
fact investigator to their team of a paralegal and mitigation investigator. These
facts do not compel a finding of deficient performance in the timing of
trial counsel's investigation.
The defendant also asserts that his counsel unreasonably limited their investigation of the
defendant's substance abuse and mental illness, foreclosing the development of a viable defense
and mitigation strategy based on his mental disease and the effects of his
substance abuse in favor of a defense unsupported by the law or the
facts and a mitigation case that was of very low weight. He
challenges the post-conviction court's finding that counsel were "not ineffective for failing to
hire a toxicologist to offer expert testimony about Petitioner's use of drugs or
alcohol." Record at 716. Similarly, the defendant also asserts that his
counsel failed to adequately investigate his mental illnesses and investigate the possibility of
mental disease or defect as a defense or mitigation. Specifically, he claims
that his counsel "did not retain a consultant on mental health issues, seek
a variety of expert mental health opinions, or even acquaint themselves with the
forensic approach of the one expert they retained."
See footnote Br. of Petitioner-Appellant at
During the guilt phase trial, the defense strategy was to urge that the
killing was done in sudden heat and thus, if the defendant were guilty,
he was guilty of voluntary manslaughter and not murder. At post-conviction, defense
counsel testified that this was one of the alternative theories they had been
considering from "day one," and when Stevens's confession was not suppressed, voluntary manslaughter
became the theory of the case. Record at 2511-12. Counsel based
this theory on a statement in the defendant's confession that he "snapped" or
"went off." Record at 2512. Defense counsel tendered an instruction on
voluntary manslaughter, which the trial court refused to give. During closing argument,
defense counsel nevertheless asked the jury to return a verdict of voluntary manslaughter.
While the defendant argues in retrospect that a mental illness defense would have
been more effective, his proposed avenue was not without its pitfalls. The
post-conviction court noted that, had defense counsel pursued this defense, they would have
opened the door to the admission of substantial incriminating evidence not otherwise presented
during the guilt phase. This evidence included testimony of a witness that,
upon the defendant's prior release from jail onto probation for a previous conviction
of child molesting, the defendant had declared that he planned to kill his
next child molesting victim to avoid returning to jail. The trial court
determined that defense counsel adequately investigated issues of substance abuse and mental illness
and reasonably chose to pursue a different strategy.See footnote The post-conviction court did
not err in denying relief on this claim.
b. Deficient Preparation for and Performance at Trial
Enumerating numerous specific instances of claimed deficiencies, the defendant contends that his trial
counsel provided constitutionally ineffective assistance in their preparation for and performance at the
guilt, penalty, and sentencing phases of his trial.
(1) Voluntariness of Confession
The defendant argues that his lawyers failed to competently litigate the reliability and
voluntariness of his confession to police. He asserts that his counsel could
have argued that he "disassociated during the police interrogation" and exhibited other signs
of mental illness that should have been raised in the motion to suppress
and in asking the jury to find the confession unreliable.
One of the defendant's post-conviction witnesses, Dr. Phillip Coons, gave his opinion that
there were at least two times when the defendant was dissociating during his
confession. The post-conviction court acknowledged this testimony, but the court concluded that
the defendant had presented no evidence of coercive police acts and therefore had
not proven the predicate to finding a confession not voluntary. Record at
722. In our opinion on direct appeal, we rejected the defendant's claim
that his confession was involuntary, noting:
Finally, review of the videotape clearly indicates no elements of coercion. The
entire interview lasted about an hour. Instead of showing overbearing officers soliciting
short, "yes/no" responses from a broken, harassed, tired suspect, the tape shows non-threatening
police officers asking general questions of Stevens, and then an alert responsive Stevens
supplying long, detailed narrative.
Stevens, 691 N.E.2d at 424. To the extent that the defendant's post-conviction
claim on this issue is not be foreclosed by res judicata, it is
governed by the principle that a defendant's claimed mental condition does not render
a confession involuntary absent coercive police conduct. See Connelly v. Colorado, 479
U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 484 (1986)(holding that
even when defendant's mental condition is questioned, coercive police conduct is a predicate
to finding a defendant's confession involuntary); Pettiford v. State, 619 N.E.2d 925, 928
(Ind. 1993)("Although a person's mental condition is relevant to the issue of susceptibility
to police coercion, where the person voluntarily makes a confession without police coercion
the confession may be considered in spite of the mental condition."). We
find that there is no reasonable probability that the trial court would have
suppressed the confession even had defense counsel presented all the evidence presented at
the post-conviction proceedings, nor is it reasonably probable that the jury's assessment of
the defendant's confession would have been affected by this testimony. The post-conviction
court did not err in denying relief on this claim.
(2) Venue Change
The defendant contends that he was prejudiced by his counsel's deficient performance when
they failed to seek a second change of venue. Upon motion of
defense counsel, the case was removed from Putnam County, where the crime was
committed, and venued to Tippecanoe County, two counties north of Putnam County.
The defendant now argues that both counties are within the Indianapolis media market,
that his counsel had no strategic reason to keep the case in Tippecanoe
County, and that the failure to seek a second change of venue prejudiced
him by denying him his right to a trial by an impartial jury.
The post-conviction court found that defense counsel were not ineffective for failing to
make a second motion for a change of venue due to pretrial publicity.
The court found that, given the inherent newsworthiness of the case, media
coverage would have been prevalent anywhere and although the coverage was at times
extensive it was not necessarily on the front page as it would have
been in Putnam County. The court also found that Stevens failed to
demonstrate prejudice as the trial record showed that every panel of the venire
was carefully questioned about pretrial publicity by the court, State, and defense counsel.
The evidence does not compel a decision opposite that reached by the
(3) Jury Questionnaire and Selection
The defendant challenges his trial counsel's performance in jury selection and particularly as
to the jury questionnaires submitted to prospective jurors.
He argues that his trial counsel used questionnaires that failed to address mitigation
issues or to explain the meaning of "life without parole," and thus failed
to ensure "that prospective jurors understood they could address future dangerousness with this
sentencing option." Br. of Petitioner-Appellant at 34. We first note that
the questionnaire form was not generated by counsel but prepared by the trial
court and submitted to counsel for review. Trial Record at 343.
Jury questionnaires are a useful tool employed by courts to facilitate and expedite
sound jury selection. Their proper purpose is not to condition or indoctrinate
prospective jurors with the parties' contentions, notwithstanding attempts of some counsel to the
contrary. Ineffective assistance of counsel may not be based upon an alleged
failure of counsel to thus misuse jury questionnaires.
The defendant further alleges that his counsel were deficient in jury selection by
failing to "integrate their mitigation theory into the voir dire process," Br. of
Petitioner-Appellant at 34, and to exhaust peremptory challenges. We have held that
it is permissible to use voir dire to inquire into jurors' biases or
tendencies to believe or disbelieve certain things about the particular line of defense.
Wisehart v. State, 693 N.E.2d 23, 45-46 (Ind. 1998). The record
reveals that defense counsel's voir dire questions extensively inquired regarding the jurors' openness
to considering mitigating factors to prevent the imposition of the death penalty.
We decline, however, to find a criminal defense attorney's performance to be deficient
for failing to condition jurors as to the particular mitigation evidence anticipated in
an individual case.
The post-conviction court found that trial counsel were not ineffective for failing to
exhaust their peremptory challenges. The court noted that, between the two of
them, the defendant's trial counsel had spent over fifty hours reviewing the completed
jury questionnaires. They challenged nineteen jurors for cause, seventeen of which were
granted. The court noted that they used seventeen of their twenty peremptory
challenges, but for strategic reasons did not exhaust them because "what was coming
up was worse." Record at 726. The court also observed that
counsel successfully rehabilitated several jurors that the State challenged for cause, forcing the
State to exercise peremptory challenges. The evidence does not compel a decision
opposite that reached by the post-conviction court.
(4) Victim Impact Evidence
The defendant argues that counsel were deficient in not objecting to victim impact
evidence in the State's opening statement and during its case in chief.
He first urges that his counsel should have objected to the following remarks
during the State's opening statement: "Zachary Snider was a typical ten-year-old. He
loved to fish, play ball, ride his bicycle, and he couldn't sit still
for long . . . His parents, Todd and Sandi Snider, both worked
to make ends meet." Trial Record at 3648. The defendant also challenges
his trial counsel's failure to object to the State's use of a picture
of the Zachary Snider holding a fish. This picture was passed to
the jury and was allegedly displayed by the prosecution on four other occasions
during the guilt phase of the trial. Defense counsel never objected to
the photograph and the defendant claims they were deficient for not objecting to
this "prejudicial drumbeat of victim impact evidence." Br. of Petitioner-Appellant at 38.
The post-conviction court found that defense counsel was not ineffective for failing to
object to the introduction and use of the photograph. One of the
defendant's defense attorneys testified during the post-conviction proceedings that, while he believed the
use of the photograph was repetitive, he observed that it was sometimes prudent
to not object so as to not draw the jury's attention to the
evidence. A decision to not object to evidence when the objection may
be more damaging than the evidence is within the wide range of professionally
competent assistance. The trial court concluded, "Defense counsel's decision not to object
to the admission of the [victim impact evidence] was a reasonable decision not
to draw the jury's attention to this testimony." Record at 734.
We agree. Because this represents reasonable trial strategy and because of the
questionable merit of the allegedly omitted objections, the evidence does not compel a
decision opposite that reached by the post-conviction court.
(5) Loss of Right to testify
As one of his enumerated examples of alleged ineffective assistance of counsel, the
defendant contends that his trial counsel gave him incorrect advice, upon which he
based his decision not to testify at trial. He argues that counsel's
advice was based upon the presumption that the defendant's testimony could add nothing
supportive of the defense's strategy to seek jury a instruction on voluntary manslaughter.
The post-conviction court, however, found:
On the contrary, defense counsel were concerned about having Petitioner testify because he
was an [sic] chronic liar who would have been a bad witness.
Moreover, if Petitioner had testified during the guilt phase, there is a danger
that he would open the door to otherwise inadmissible evidence. Defense counsel's
advice that Petitioner not testify was a reasonable strategic decision based on sound
Record at 724. We are not persuaded that the evidence compels a
decision opposite that reached by the post-conviction court.
(6) Pursuing Voluntary Manslaughter as Defense Theory
The defendant claims that his trial counsel were ineffective for pursuing a "fundamentally
flawed" approach to the case by proceeding on a theory of voluntary manslaughter.
They tendered three proposed instructions that dealt with voluntary manslaughter, but these
were rejected by the trial court. The defendant argues that there was
no evidence in the record to support this theory, and that there was
another viable defense available but not used.
The defendant urges that, if defense counsel had consulted other mental health experts,
counsel "would have learned of [the defendant's] dissociative disorder, borderline personality disorder, chemical
dependency, and LSD impairment at the time of the offense." Br. of
Petitioner-Appellant at 42. In the post-conviction proceedings and in this appeal, the
defendant's present counsel assert that the defendant was raped as a child; that
at the time of the killing the defendant switched his identity with that
of Zachary; that the defendant killed Zachary "because it's what he would have
wanted in that molestation at age 10, to have been killed by his
abuser;" and that the defendant's ability to appreciate the wrongfulness of his conduct
"was disengaged when he was dissociating." Id. The defendant argues further
that, even if the voluntary manslaughter defense were regarded as legitimate strategy, this
would not excuse the failure to present the mental illness defense.
The post-conviction court found that counsel's decision to pursue the voluntary manslaughter strategy,
while ultimately unsuccessful, did not amount to deficient performance. The court pointed
out that "[a]ny appreciable evidence of sudden heat justifies an instruction on voluntary
manslaughter," Roark v. State, 573 N.E.2d 881, 882 (Ind. 1991), and that sudden
heat is defined as provocation arising from a variety of emotions. In
the defendant's admissions of guilt to his brother, the defendant said that he
"clicked" or "went off" when Zachary threatened to tell his parents about the
defendant's sexual conduct. In the defendant's confession to police, he stated that
he killed Zachary because he was afraid that Zachary would report him.
Concluding that the defendant received effective assistance of counsel as to their strategy
to pursue voluntary manslaughter instructions, the post-conviction court found that the defendant's trial
attorneys "pursued the most viable defense available to them." Record at 664.
As to the failure to present a mental illness defense during the guilt
phase, the post-conviction court noted that, had defense counsel done so, they would
have opened the door to the admission of substantial incriminating evidence not otherwise
presented during the guilt phase. Cf. Miller v. Anderson, 255 F.3d 455
(7th Cir. 2001). As we noted above, this included testimony that, upon
the defendant's prior release from jail to probation for a previous conviction of
child molesting, the defendant had declared his intent to kill his next child
molesting victim to avoid returning to jail.
We conclude that the evidence as a whole does not lead unerringly and
unmistakably to a decision opposite that reached by the post-conviction court, and we
find that defense counsel's choice of defense theory did not constitute ineffective assistance
7. Defense guilt phase closing argument
The defendant contends that defense counsel were deficient in failing to present argument
or tender an instruction regarding jury's authority under Art. 1, Sec. 19 of
the Indiana Constitution to determine both the law and the facts. Stevens
did not raise this issue in his petition for post-conviction relief. Issues
not raised in the petition for post-conviction relief may not be raised for
the first time on post-conviction appeal. See P-C.R. 1(8); Allen, 749 N.E.2d
(8) Mitigation Evidence
The defendant contends that his trial counsel were deficient during the penalty phase
and sentencing hearing by failing to present sufficient evidence of mitigating circumstances.
The defense presented various witnesses and evidence showing various mitigating circumstances including his
parents' divorce and his living in the homes of different people while growing
up, the defendant's troubled childhood including suffering childhood sexual abuse, his adolescent alcohol
and drug use and diagnoses of passive personality, his depression and suicide attempts,
and his poor academic performance. The defendant's post-conviction counsel, however, assembled several
witnesses to testify regarding information and theories that were not employed by defense
The defendant first argues that his trial lawyers unreasonably limited their penalty phase
and sentencing presentations to events of his life that occurred before age 18
and that his counsel unreasonably relied upon Dr. Lennon, rather than presenting other
psychological experts regarding the defendant's mental or emotional distress at the time of
the killing. He argues that Dr. Lennon "was a fatal witness for
the defense," noting that on cross-examination by the State, Dr. Lennon agreed with
the State's theory that Zachary's murder appeared directly related to the defendant's fear
of having to return to prison, and the defendant was not susceptible to
traditional psychotherapy and was a serious danger to society. Br. of Petitioner-Appellant
at 45. The defendant further urges that his trial counsel failed to
present a reason for the defendant's crime. He argues that counsel should
have presented expert evidence that, at the time of the killing, the defendant
was under a mental disease or defect, with an impaired ability to appreciate
the wrongfulness of his conduct and conform it to the law; that he
was very likely influenced by the interactive use of drugs; that his disorders
were treatable with medication and intensive, individual psychotherapy; and that he would not
constitute a pedophilia threat in prison.
The post-conviction court rejected these claims. The court observed that expert witness
opinions suggesting that the defendant had an impaired ability to appreciate the wrongfulness
of his conduct would have been strongly contradicted by the extensive evidence of
the defendant's multiple attempts to kill Zachary and then carefully to take steps
to cover-up the crime. The court noted that even one of the defendant's
own experts at post-conviction acknowledged that the defendant could appreciate the wrongfulness of
his conduct when he took steps to hide Zachary's body. The post-conviction
court later concluded:
Defense counsel were not ineffective for failing to investigate and prepare evidence of
organic and mental impairments, including dissociative disorders, borderline personality disorders, and the effects
of long-term drug use. Defense counsel's investigation of Petitioner's mental health and
prior use of drugs was reasonable, . . . . Both of [defendant's
trial counsel] testified that they were aware of Petitioner's prior drug abuse.
Dr. Lennon was also aware of Petitioner's prior drug abuse. However, Petitioner
denied having recently used drugs: he "used to do drugs, used to drink,"
but that he stopped drinking when he got arrested for child molesting, and
"had stopped smoking marijuana awhile before that, long before that, pretty much cause
my sister got killed by a guy that was high and ever since
that I had, I had gone from doing it heavy to real light
and then stopped." Moreover addiction counselor Needham evaluated Petitioner in January 1993
and found that Petitioner did not have a drug or alcohol problem.
Thus, defense counsel's investigation was reasonable.
Moreover, had defense counsel adopted the strategy of emphasizing Petitioner's prior drug use,
this would have been inconsistent with their mitigation strategy of portraying Petitioner as
the passive victim of abuse. As Dr. Lennon testified, "so much of
[Petitioner's] behavior could be explained by the abuse, the neglect that he's had
on top of his genetic predisposition, and then you look at all the
drugs that he's been surrounded with his birth mother, and then the fact
that she probablyeven though she denies it, the evidence will suggest that she
probably did do drugs or alcohol during pregnancy." Had defense counsel elicited
evidence of Petitioner's prior use of illicit drugs, he would no longer appear
to be a passive victim molded by outside forces, but would appear as
someone who had actively decided to break the law. As the Seventh
Circuit explained in Stewart v. Gramley, 74 F.3d 132, 136 (7th Cir. 1996),
"What is brought out [during the penalty phase] that will help [a defendant]
is what goes to show that he is not as "bad" a person
as one might have thought from the evidence in the guilt phase of
the proceeding. What is brought out that will hurt him is what
goes to show that he is, indeed, as bad a person, or worse,
than one might have thought from just the evidence concerning the crime."
Defense counsel was not ineffective for failing to pursue a mitigation strategy that
could have caused the jury to think that Petitioner had a more extensive
history of lawbreaking than was otherwise apparent.
Record at 675-76 (included citations to record omitted).
The post-conviction court thus found that defense counsel were aware of petitioner's past
drug abuse and investigated the mental health issues through the use of Dr.
Lennon. Further, the court found that presenting the petitioner's chronic drug abuse
would cut against the defense strategy of portraying the petitioner as a passive
victim of abuse rather than someone with an extensive history of lawbreaking.
The court determined that the strategic decision to pursue this mitigation strategy over
another was not ineffective assistance of counsel. We are not persuaded that
the evidence in the record unavoidably points towards an opposite result.
The defendant also contends that defense counsel was constitutionally ineffective because of a
statement made by counsel during the penalty phase closing argument: "I am
not going to tell you that anything that happened in Chris Stevens's life
explains or excuses the events of July 15th, 1993. It doesn't, and
he will have to suffer the punishment for that." Trial Record at
5440. The State responds that this statement was reasonable because it reminded
the jury that "recommending a sentence other than death would not mean that
they were excusing [the defendant] for his actions, and would not mean that
[the defendant] would escape with no punishment. Br. of Appellee at 37.
The challenged statement was in the context of surrounding argument urging that the
important part of the case before the jury was not whether the defendant
committed the crime, but rather what penalty to recommend: a term of years,
life imprisonment without parole, or deathany of which constitute severe punishment. Counsel's
argument clearly emphasized the importance of mitigating circumstances. The challenged statement taken
in context cannot reasonably be understood to have invited the jury to disregard
mitigating circumstances. We decline to find deficient performance based on his claims
of failure to present sufficient mitigating evidence during the penalty phase and sentencing.
(9) Life without Parole Instruction
The defendant contends that his trial counsel were deficient for failing to tender
a penalty phase instruction that would have informed the jury of the "true
effect" of life without parole. Br. of Petitioner-Appellant at 50. He
argues that such an instruction was needed to offset the possibility that a
juror might believe that if sentenced to life without parole, the defendant could
be released early. The defendant argues that such an explanation should have
been provided because there had been evidence on the issue of future dangerousness
and because his trial counsel allegedly provided misguided speculation during jury selection when
responding to a potential juror's question concerning the meaning of life without parole.
The post-conviction court's decision noted that it is unnecessary to instruct juries on
words that are commonly understood. The court found that "'life without the
possibility of parole' consists of common words that may be easily understood by
persons of average understanding." Record at 733. It also found that
had any such instruction been tendered it would have been refused. The
post-conviction court concluded that the defendant had received effective assistance of counsel as
to this claim. We agree and decline to find ineffective assistance of
trial counsel on this issue.
(10) Conflict of Interest
The defendant contends that his two trial counsel disliked him and that their
personal animosity toward him interfered with their duty of loyalty to their client,
adversely affecting their representation of him, to his prejudice. This issue was
not designated in the petition for post-conviction relief and thus may not be
raised on appeal. See P-C.R. 1(8); Allen, 749 N.E.2d at 1171.
(11) Use of Stun Belt 2. Government Interference with Right to Counsel
The defendant devotes a substantial section of his brief to his claim that
the sheriff's decision to place a stun belt
See footnote on the defendant during trial
is reversible error. This Court has recently declared that stun belts may
not be used on defendants in Indiana courtrooms.
Wrinkles v. State, 749
N.E.2d 1179, 1194 (Ind. 2001). To the extent that the defendant asserts
this issue as an independent claim, however, this issue is procedurally defaulted because
it was not raised at trial, Williams v. State, 690 N.E.2d 162, 166
(Ind. 1997), or on direct appeal, Rouster v. State, 705 N.E.2d 999, 1003
(Ind. 1999). But because the defendant's argument also claims that his trial
counsel's failure to object to the stun belt at trial constitutes prejudicial deficient
performance, we will address the issue in the context of ineffective assistance of
The post-conviction court concluded that defense counsel were not ineffective for failing to
raise this claim, noting that no evidence was presented that the defendant was
impeded in his ability to assist his counsel, that no jurors were aware
that Stevens was wearing a stun belt, and that the belt did not
affect Stevens's appearance before the jury.
The defendant asserts that while none of the jurors were aware that he
was wearing a stun belt, their perception of him was still affected by
the fact that he was under restraint. The defendant argues that he
was harmed because wearing the belt made him appear to the jurors as
emotionally withdrawn, subdued, and unusually silent, which may have influenced them to recommend
the death penalty. In the post-conviction proceedings, the defendant presented the testimony
of Dr. Robert Kaplan who testified that the wearing of the stun belt
at trial would have inhibited the defendant's expression of emotion.
The testimony of five of his capital trial jurors and the affidavit of
a sixth juror were also presented. The jurors described the defendant as
emotionally withdrawn, silent, and subdued. One juror stated that he did not
appear remorseful. Three jurors stated that they observed the defendant interacting with
his attorneys by passing notes and whispering. The defendant recognizes that his
demeanor and affect as seen by the jurors during trial was essentially the
same demeanor and affect they had seen during his videotaped confession. Br.
of Petitioner-Appellant at 58.
We conclude that the evidence does not unmistakably lead to a result contrary
to the post-conviction court's factual findings. From the circumstances presented in this
case, we find no reasonable possibility that but for the failure of trial
counsel to object to the stun belt, the results of the guilt phase,
penalty phase, or sentencing would have been different.
The defendant contends that his trial counsel's preparation for and defense at trial
was frustrated by various acts of governmental interference under circumstances that constructively denied
him his right to counsel, to present a defense, and to a fair
and reliable trial. His claim focuses upon trial counsel's difficulties in obtaining
unquestioned attorney fee payments, the denial of ex parte access by defense counsel
to the court regarding funds for investigative assistance, and counsel's inability to obtain
further mental health evaluations. While these claims were known and not raised
in direct appeal, to the extent that they are in the nature of
claims of ineffective assistance of counsel under the Sixth Amendment and require consideration
of evidence outside the trial record, we will address them. The gravamen
of his claim is that the court prevented his attorneys from adequately preparing
for trial and securing expert assistance. In United States v. Cronic, 466
U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court recognized
that when surrounding circumstances define a very small likelihood that any lawyer, even
a fully competent one, could provide effective assistance, prejudice will be presumed without
inquiry into the actual conduct of the trial. Id. at 659-60, 104
S.Ct. at 2047, 80 L.Ed.2d at 668. Only where there has been
an actual breakdown of the adversarial process will a Sixth Amendment violation be
found without inquiry into counsel performance. Id. at 657-58, 104 S.Ct. at
2046, 80 L.Ed.2d at 667.
(a) Fee Disputes
The defendant first alleges that Putnam County Circuit Judge LaViolette, who presided over
the case until its venue was changed to Tippecanoe County, caused his attorneys
"numerous difficulties in obtaining compensation" such that they "had to expend more time
on collateral issues and attempting to have the assets or the resources to
prepare for trial than [they had] in preparing for trial." Br. of
Petitioner-Appellant at 61(citing Trial Record 733, 1413). The post-conviction court found that
the billing procedures did not result in prejudice as neither counsel indicated at
the post-conviction hearing that the disputes "prevent[ed] them from taking any particular step
or cause[d] them to forgo any particular part of their defense." Record
The post-conviction court concluded that the fee disputes did not materially affect counsel's
performance. At the post-conviction hearing one defense counsel stated that he believed
that at the initial stages of the case the dispute "impaired our ability
to research and investigate the case," but he could not recall any particular
thing he did not do because of the disputes. Record at 2067,
2088. The other attorney stated that the disputes took up time, but
he could not specify any particular step he did not take because of
the disputes. Record at 2556. The evidence as a whole does
not lead us unerringly to a decision opposite that of the post-conviction court.
(b) Ex Parte Hearings for Funds
The defendant next alleges that judicial denial of his counsel's request for an
ex parte hearing to determine funds for experts and investigation denied him a
fundamental requirement to prepare and present a defense. He argues that the
inability to obtain an ex parte hearing resulted in his attorneys (1) prematurely
disclosing the identity of its consulting expert, (2) being unwilling to seek additional
mental health experts or secure other evaluations, and (3) being hampered in their
preparation for trial and choice of trial strategies.
The post-conviction court found that the "trial court did not deny defense counsel's
requests for ex parte hearings, but merely informed counsel that they must show
good cause before an ex parte hearing would be granted." Record at
745. The post-conviction court also determined that the order granting funds did
not restrict counsel to any particular expert. Id. at 746. In
addition, the court found that the defendant did not identify any part of
the trial record where funds were denied after the case was venued nor
where defense counsel's "thought process and strategies were required to be disclosed prior
to the approval of funds for expert witnesses." Record at 746.
The defendant urges that appointed capital case counsel should be entitled to an
ex parte determination of all motions for funds for assistance. We decline
this broad request. Communication between one litigant and the court, in the
absence of the other parties, is strongly discouraged. See Ind.Professional Conduct Rule
3.5; Ind.Judicial Conduct Canon 3(B)(8). In Newhart v. State, 669 N.E.2d 953
(Ind. 1996), the defendant claimed that the trial court erred when it refused
to grant him an ex parte hearing on his request for funds.
We stated that "[o]ur ethical rules counsel against such ex parte communications," and
concluded that the defendant had not persuaded us that the trial court erred
in this regard. Id. at 955.
Courts in sister states have reached varying decisions on the right to an
ex parte hearing. The Arizona Supreme Court in State v. Apelt, 861
P.2d 634, 649-50 (Ariz. 1993), determined that neither the Fourteenth Amendment's guarantee of
due process nor that of equal protection entitles defendants to an ex parte
hearing. Citing a similar judicial conduct canon as we did in Newhart,
the Arizona court determined that ex parte communications are forbidden except where authorized
by law, and as there were neither statutory nor organic law authorizing such
a procedure the trial court did not err in refusing to conduct the
hearing ex parte. See also State v. Floody, 481 N.W.2d 242, 256
(S.D. 1992)(no constitutional grounds for ex parte hearing); Ramdass v. Commonwealth, 437 S.E.2d
566, 570 (Va. 1993)(rejecting both federal and state constitutional arguments for an ex
parte hearing), rev'd on other grounds sub nom., 512 U.S. 1217, 114 S.Ct.
2701, 129 L.Ed.2d 830 (1994). In contrast, Louisiana has recognized a constitutional
basis for allowing an ex parte proceeding, but requires a defendant to first
demonstrate a particularized prejudice to the defendant from holding an adversarial hearing.
See State v. Touchet, 642 So.2d 1213 (La. 1994). In State v.
Phipps, 418 S.E.2d 178, 191 (N.C. 1992), North Carolina acknowledged that there are
strong reasons to allow such proceedings to be held ex parte, but refused
to find them to be constitutionally required and rather left the decision to
trial court's discretion. Other states have decided that defendants are entitled to
an unqualified ex parte hearing concluding that indigent defendants should not be required
to reveal a defense theory or the identity of experts who are consulted
but who may not testify at trial. See Ex Parte Moody, 684
So.2d 114, 120 (Ala. 1996)(holding criminal defendant entitled to ex parte hearing on
whether expert assistance is necessary based on Fifth, Sixth, Fourteenth Amendments to Constitution);
Brooks v. State, 385 S.E.2d 81, 84 (Ga. 1989) (deciding indigent defendant entitled
to ex parte hearing to determine entitlement to public funds); Arnold v. Higa,
600 P.2d 1383, 1385 (Haw. 1979)(determining indigent defendant entitled to ex parte hearing
so that he can demonstrate indigency or particularize reasons for request for litigation
expenses without disclosing defensive theories to State); McGregor v. State, 733 P.2d 416
(Okla. Crim. App. 1987)(holding hearing to determine if defendant was entitled to court-appointed
psychiatrist on motion must be ex parte); State v. Barnett, 909 S.W.2d 423,
429 (Tenn. 1995)(holding that when indigent defendant seeks psychiatric assistance, the hearing should
be ex parte); Williams v. State, 958 S.W.2d 186, 193-94 (Tex. Crim. App.
1997)(deciding that an indigent defendant is allowed an ex parte proceeding because the
defendant should not have to disclose defensive theories to prosecution in order to
obtain "basic tools of an adequate defense").
While we recognize that strategic considerations will often lead defense counsel to prefer
secrecy as to their funding requests, we find no automatic constitutional entitlement to
such ex parte proceedings. A trial court may, however, upon a showing
of good cause, permit an ex parte request for funds for assistance.
The denial of such a request is reviewable for abuse of discretion.
In the present case the defendant has not demonstrated that the actions of
the trial court in requiring good cause before permitting an ex parte request
resulted in an actual breakdown of the adversarial process. There is no
Cronic violation here.
3. Ineffective Assistance of Appellate Counsel
The defendant also contends that he did not receive effective assistance of his
appellate counsel. His brief focuses upon the claim that his appellate counsel
inadequately presented the issue that Zachary's age was "double counted" as an aggravating
circumstance because age was a factor in more than one of the aggravators.
The defendant also mentions in cursory fashion three additional allegations of deficient
appellate representation: (a) failing to argue that his sentence was unreliable due to
a reduction in the jury's sense of personal responsibility; (b) failing to adequately
argue that the State improperly injected victim impact evidence through its use of
a photograph of Zachary holding a fish; and (c) failing to raise the
issue of governmental interference.
A defendant is entitled to the effective assistance of appellate counsel. Evitts
v. Lucy, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 825 (1985); Johnson
v. State, 693 N.E.2d 941, 950 (Ind. 1998). Appellate ineffectiveness claims are
evaluated under the Strickland standard of conduct falling below professional norms and resulting
in prejudice such that our confidence in the outcome is undermined. Bieghler
v. State, 690 N.E.2d 188, 192-93. (Ind. 1997). As for challenges to
an appellate counsel's strategic decision to include or exclude issues, courts should be
particularly deferential "unless such a decision was unquestionably unreasonable." Id. at 194.
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 v. State, 738 N.E.2d 253, 261 (Ind. 2000). Deciding which
issues to raise on appeal is one of the most important strategic decisions
of appellate counsel. Bieghler, 690 N.E.2d at 193. Appellate counsel is
not deficient if the decision to present "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." Id. at 194. Even if
counsel's choice is not reasonable, to prevail, petitioner must demonstrate a reasonable probability
that the outcome of the direct appeal would have been different. Id.
An appellate ineffectiveness claim challenging the quality of counsel's actual presentation of
a claim must "overcome the strongest presumption of adequate assistance." Id. at
196. If the claimed issues were presented by appellate counsel and analyzed
by an appellate court, relief will only be afforded when the "appellate court
is confident it would have ruled differently." Id.
The defendant contends that if his appellate counsel would have better presented the
issue of overlapping aggravators, there is a reasonable probability that he would have
prevailed on appeal. The issue was presented and extensively addressed on direct
appeal. Stevens, 691 N.E.2d at 433-34. The defendant does not persuade
us that this issue presented or argued differently would have produced a different
The defendant also claims ineffective assistance of appellate counsel alleging that his appellate
counsel failed to argue that his sentence was unreliable due to a reduction
in the jury's sense of personal responsibility because prospective jurors were "repeatedly reminded
that they were only recommending a sentence [and two jurors] were exposed to
a prospective juror's comments that she could rationalize rendering a verdict on the
ground that the judge would be making the final decision." Br. of
Petitioner-Appellant at 66. The post-conviction court found that no evidence was produced
at trial or on post-conviction that the jury's sense of personal responsibility was
reduced, and that petitioner did not demonstrate that this issue was of greater
merit than the issues actually raised on appeal. Record at 740.
The jury selection process lasted five days. The defendant does not cite
the record or otherwise direct our attention to the instances in which he
claims that prospective jurors were "repeatedly reminded that they were only recommending a
sentence." As to his allegation that two jurors overheard another prospective juror's
comment, there was no objection by trial counsel, nor did trial counsel challenge
to remove the two jurors who overheard the comment.
As noted above, with respect to the defendant's challenge to his appellate counsel's
strategic decision to include or exclude this issue, we should be particularly deferential
"unless such a decision was unquestionably unreasonable." Bieghler, 690 N.E.2d at 193-94.
The defendant has failed to demonstrate that his appellate counsel's decision to omit
this issue was unreasonable. The defendant has likewise not shown a reasonable
probability that the outcome of the direct appeal would have been different if
the issue had been presented. We agree with the decision of the
post-conviction court to deny relief as to the defendant's claim of ineffective assistance
of appellate counsel.
As to the defendant's assertion that his appellate counsel failed to adequately argue
that the State improperly injected victim impact evidence by its use of a
photograph of Zachary holding a fish, the designation of alleged ineffective appellate counsel
in his petition for post-conviction relief does not identify any claim regarding victim
impact evidence or mention the State's use of the photograph. The defendant's
petition for post-conviction relief does claim that his appellate counsel was deficient in
failing to adequately present a claim that the trial outcome "was unfair and
unreliable due to the injection of irrelevant and prejudicial evidence proscribed by Ind.
Evidence Rule 404(b),"
See footnote Record at 70, but the argument in his appellate brief
does not refer to any claimed violation of Rule 404(b). We deem
this claim to be procedurally defaulted.
See P-C.R. 1(8); Allen, 749 N.E.2d
at 1171. Similarly, the defendant's claim that his appellate counsel failed to
raise issues of governmental interference was not designated in his petition for post-conviction
relief and is thus likewise not available. Furthermore, we have already discussed
both of these claims in the context of the defendant's allegations of ineffective
assistance of counsel at trial.
4. Lethal Injection, Sentence Reliability
The defendant challenges the denial of his post-conviction claims that Indiana's lethal injection
execution scheme violates international law, and that it contravenes evolving standards of decency,
that it constitutes cruel and unusual punishment, and that his death sentence is
The first three of these claims were available but not presented on direct
appeal and may not be asserted as post-conviction claims. See Timberlake, 753
N.E.2d at 597. As to the defendants claim that his death sentence
is unreliable, he asserts that the "jury and the judge were never provided
information necessary to make an informed judgment as to the appropriate sentence."
Br. of Petitioner-Appellant at 68. He argues that the jury was not
informed about his mental disabilities and their interaction with his drug abuse and
that the jury was not given a proper understanding of the sentence life
without parole. We have considered these claims in the context of his
assertions of ineffective assistance of counsel. We decline to consider sentence reliability
as an independent freestanding post-conviction claim. See Saylor v. State, 765 N.E.2d
535, 544 n.1 (Ind. 2002); Wrinkles, 749 N.E.2d at 1187 n.3; Allen v.
State, 749 N.E.2d 1158, 1176 n.28 (Ind. 2001).
5. Incomplete, Unfair, and Biased Post-Conviction Relief Adjudication
(a) Use of State's Proposed Findings of Fact and Conclusions of Law
The defendant claims that he was denied a full, fair and unbiased adjudication
of his post-conviction claims when the post-conviction court essentially adopted verbatim the proposed
findings of fact and conclusions of law submitted by the State. In
Prowell v. State, 741 N.E.2d 704 (Ind. 2000), we acknowledged that a trial
courts verbatim adoption of a partys proposed findings may have important practical advantages
and we expressly declined to prohibit the practice. Id. at 708-09.
We noted, however, that the wholesale adoption of one party's findings results in
an "inevitable erosion of the confidence of an appellate court that the findings
reflect the considered judgment of the trial court." Id. at 709; see
also Wrinkles, 749 N.E.2d at 1188.
The sixty-five pages of findings and conclusions entered by the post-conviction court are
for the most part identical to the proposed findings submitted by the State,
but we note several differences. For example, the post-conviction court added two
sentences to one issue, a couple of paragraphs to another, and corrected some
of the misspellings. It is thus evident that the court carefully considered
and purposefully used of the individual findings proposed by the State. The
extensive findings of fact and conclusions of law addressed all the claims delineated
in his petition. While near verbatim reproductions may appropriately justify cautious appellate
scrutiny, we decline to hold that the post-conviction courts utilization of the States
proposed findings in the present case constituted a failure to provide the defendant
with a full, fair and unbiased adjudication of his post-conviction claims.
(b) Failure to Recuse
Stevens claims his right to a full, fair and unbiased hearing was also
violated by the post-conviction judge refusing to recuse himself. Judge Heid
See footnote presided
over the post-conviction trial and also over the original trial. The defendant
sought the judge's recusal on grounds that he intended to interview Judge Heid
as a potential witness on the stun belt issue.
See Ind.Judicial Conduct
See footnote Judge Heid denied the motion, ruling that his testimony would
be cumulative to the testimony of counsel.
The defendant does not challenge Judge Heid's impartiality, but rather he asserts that
he was denied the opportunity to interview Judge Heid as a potential witness,
which hobbled his case. In denying the motion to recuse, the trial
Well throughout the proceedings that were conducted here, the State was represented by
three attorneys and the defense was represented by two attorneys and to the
extent there were any conversations about procedural issues or housekeeping matters that for
some reason may not have been recorded, I think all or almost all
of those people were in attendance. I know if there were discussions
about security issues the sheriff was in attendance with perhaps another deputy, and
so I think there's ample witnesses who can testify about those conversations to
the extent they took place without the requirement of calling the trial judge
as a witness to add cumulative, perhaps cumulative testimony, and it seems however
that the crux of this issue comes down to why was the decision
made not to object and whether it was favorable or unfavorable to Mr.
Stevens to have a stun belt rather than some other kind of restraint
and the thought process, those decision making is it's an internal process
of the defense of which the court had no knowledge or certainty wasn't
privy to the defense strategy in this matter and I would not be
able to provide any helpful information about how that decision came about or
whether it was favorable or unfavorable to the defendant. And also given
the amount of work that's been done in this case in preparing it
to this point, it's been pending since May of last year, and here
we are ten days from a week long trial, it just seems to
me that this really isn't an appropriate situation for me to recuse myself
and have you start all over with someone else in this case.
So with due respect to your motion here, I think it should be
and it is denied. We'll go ahead and I'll stay on the
Record at 952. We discern no error in the trial court's denial
of the defendant's motion to recuse.
We affirm the judgment denying the defendant's petition for post-conviction relief.
SHEPARD, C.J., and SULLIVAN, BOEHM and RUCKER, JJ., concur.
This opinion uses the designation "Record" to apply to the record of
the post-conviction proceedings. The original trial record is designated as "Trial Record."
"Supp. Record" refers to the supplemental record of the post-conviction proceedings.
Footnote: Ind.Crim. Rule 24(B).
Footnote: Part of the reason for the delay was the determination of the
defendant's request that the hearing be
ex parte. See infra Part 2(b).
The defendant also faults his trial counsel for providing a copy of
Dr. Lennons report to the State prior to trial. We note, however,
that the report was provided in compliance with the trial courts order that
any reports from experts are to be submitted to the State sixty (60)
days in advance of trial. Record at 299. On motion of
the defense, the trial court extended the deadline for the exchange of reports
from experts to July 19, 1994. Record at 343. The defense
thereafter supplied the report.
Footnote: The post-conviction court concluded, in part:
With the benefit of hindsight, Petitioner's present counsel suggest that trial counsel should
have adopted the defense of mental disease or defect (Ind.Code § 35-41-3-6) and
should have presented psychiatric evidence that Petitioner was unable to form the mens
rea necessary to commit intentional murder. However, if Petitioner had raised the
insanity defense, he would have opened the door to the admission of incriminating
evidence that was not presented during the guilty [sic] phase of his trial.
. . . Moreover, the facts of the crime itself militate against insanity.
. . . Against this backdrop, Dr. Coons's testimony that, in his opinion,
Petitioner's ability to appreciate the wrongfulness of his conduct was "impaired" would have
had little or no effect on the jury's verdict, particularly in light of
Dr. Coons's acknowledgement that Petitioner could appreciate the wrongfulness of his conduct when
he took steps to hide Zachary's body.
Record at 713-718.
Although Tippecanoe and Putnam County residents may receive some overlapping Indianapolis media,
the court found that Tippecanoe County has its own daily newspaper and television
Footnote: During voir dire, defense counsel asked, "Mr. [Juror], anything about life without
parole that you either think is a good idea or a bad idea
in general?" Juror: "As an alternative to the death sentence you
mean?" Defense counsel: "Yes." Juror: "Well, I'd have to
get an idea of what you meant by life without parole. Is
that truly life without
" Defense counsel: "It means locked up.
Yeah, that's what it means." Juror: "Even 20 years from
now, the rules aren't going to change?" Defense counsel: "No.
Well . . . [y]ou're the one that said you can't predict the
future as to whether you change your views on the death penalty.
I can't predict the future as to what the law is. Right
now, the law is life without parole is life without parole. . .
. It means if a person is sentenced to life without parole, they
don't walk out ever again." Record at 1825-27. Two jurors were
seated from the panel who witnessed this interchange, though the juror directly involved
in the discussion was excused.
Footnote: We recently described the nature and operation of the stun belt in
Wrinkles v. State:
The stun belt . . . is an electronic shocking device that is
secured around the wearer's waist. Two nine-volt batteries connected to prongs that
are attached to the wearer over the left kidney region power the belt.
The belt may be activated from as far away as 300 feet,
and once activated it delivers an eight-second, 50,000-volt shock that cannot be stopped.
This high-pulsed electrical current travels through the body along blood channels and
nerve pathways. The belt's electrical emission knocks down most of its victims,
causing them to shake uncontrollably and remain incapacitated for up to forty-five minutes.
Activation may also cause immediate and uncontrolled defecation and urination, and the
belt's metal prongs may leave welts on the wearer's skin requiring as long
as six months to heal. Activation may cause some wearers to suffer
heartbeat irregularities or seizures. Manufacturers of the stun belt emphasize that the
belt relies on the continuous fear of what might happen if the belt
is activated for its effectiveness.
749 N.E.2d 1179, 1193-94 (Ind. 2001)(internal citations omitted).
Ind.Evidence Rule 404(b) prevents the admission of evidence regarding "uncharged misconduct" or
"prior bad acts" to prove a person's character.
Footnote: Judge George Heid died during the pending of this appeal.
Indiana Judicial Conduct Canon 3(E)(1) provides:
(1) A judge shall disqualify himself or herself in a proceeding in which
the judge's impartiality might reasonably be questioned, including but not limited to instances
. . . .
(b) . . . the judge has been a material witness concerning [the
matter in controversy].