ATTORNEYS FOR APPELLANT :        ATTORNEYS FOR APPELLEE:

SUSAN K. CARPENTER                 KAREN M. FREEMAN-WILSON
Public Defender of Indiana                Attorney General of Indiana

JOANNA GREEN                    THOMAS D. PERKINS            
Deputy Public Defender                Deputy Attorney General
                            Indianapolis, Indiana
LAURA L. VOLK
Deputy Public Defender

LINDA HUGHES
Deputy Public Defender
Indianapolis, Indiana

 MATTHEW ERIC WRINKLES,            )

Id. at 1262. Finding a likelihood of success on the merits at trial, the trial judge granted a preliminary injunction prohibiting the Los Angeles County Sheriff’s Department “to either place or activate a stun belt on a prisoner in his custody pending the outcome of trial.” Id.
    Although not all courts have taken this stance, See footnote we agree with the observations of the federal court judge and thus hold that henceforth stun belts may not be used on defendants in the courtrooms of this State. This is so because we believe that the other forms of restraint listed above can do the job without inflicting the mental anguish that results from simply wearing the stun belt and the physical pain that results if the belt is activated. This, however, does not mean Wrinkles is entitled to relief.
Before trial began, the trial court informed counsel that Wrinkles would have to wear either shackles or a stun belt during trial. P-C R. at 1139, 1326. Without objection counsel chose a stun belt, and Wrinkles claims they rendered ineffective assistance as a result. We disagree. Although with this opinion we declare that stun belts no longer have a place in Indiana courtrooms, that was not the case at the time of Wrinkles’ trial. See footnote Our prohibition is motivated primarily by the potential effect a stun belt may have upon the person wearing the device. However, without the benefit of this declaration, counsel were concerned about the effect on the jurors if they were to observe their client wearing a particular device. Counsel believed that the chance of the jury seeing the shackles was fairly high. P-C R. at 1139. On the other hand, counsel opted for the stun belt because they thought the jurors would not be able to see it. P-C R. at 1139. Obviously, they were later proven wrong. However, at the time the decision was made, it was a prudent one. “Tactical choices by trial counsel do not establish ineffective assistance of counsel even though such choices may be subject to criticism or the choice ultimately prove[s] detrimental to the defendant.” Garrett v. State, 602 N.E.2d 139, 142 (Ind. 1992). Rather, “[c]ounsel is afforded considerable discretion in choosing strategy and tactics, and we will accord that decision deference.” Conner, 711 N.E.2d at 1248. Wrinkles has not demonstrated that counsels’ strategic decision in choosing a stun belt as opposed to shackles rises to the level of ineffective assistance of counsel.
As for counsels’ failure to object to the trial court’s order, it is error for a trial court to require a defendant appearing before the court to wear restraints as a matter of course. Rather, the restraints must be necessary, and the reasons supporting the trial court’s determination must be placed on the record. Coates, 487 N.E.2d at 169. Nonetheless, the record reflects that the trial court apparently has a policy of requiring defendants to wear restraints regardless of whether they have previously exhibited any conduct justifying restraints. P-C R. 1139-40. Attorney Danks testified at the post-conviction hearing that neither he nor attorney Vowels objected to the trial court’s order because the trial judge would have ordered Wrinkles to wear shackles instead. P-C R. at 1139-40. Thus, even though the trial court’s policy would not likely withstand appellate scrutiny if the issue were presented, it is apparent that at least at the time of Wrinkles’ trial, an objection to wearing restraints would not have been sustained by the trial judge even if made. Accordingly, Wrinkles has not sustained his burden of demonstrating that counsels’ performance on this issue fell below an objective standard of reasonableness.
(2) Victim Impact Statement
The Pre-sentence Investigation Report contained a statement from Mae McIntire recommending that Wrinkles receive the death penalty. See footnote McIntire had been responsible for raising Wrinkles’ wife Debbie and her brother Mark. Wrinkles contends counsel should have objected to this statement because it violated Bivins, which provides that victim impact evidence can only be admitted in death penalty cases if it is relevant to an aggravating or mitigating circumstance. See Bivins, 642 N.E.2d at 957. Assuming counsel should have objected to this statement on the ground that it is not relevant to the multiple murder aggravator, which is the charged aggravator in this case, Wrinkles has not shown that the trial court even relied on this statement in imposing the death penalty. In fact, the trial court did not mention this statement in either its sentencing statement or its sentencing order. R. at 399-403, 3372-80. Further, the evidence supporting the multiple murder aggravator is strong in that Wrinkles confessed to shooting all three victims. See Bivins, 642 N.E.2d at 957 (holding that admission of improper victim impact evidence was harmless beyond a reasonable doubt in part because of “the strong evidence of the charged aggravating circumstance . . . .”). The post-conviction court did not err in concluding that counsel were not ineffective for failing to object to Mae McIntire’s statement.
(3) Wrinkles’ Prior Bad Acts
The State introduced evidence through two witnesses of Wrinkles’ aggressive behavior toward his wife. See footnote Counsel lodged no objections to this testimony. Wrinkles contends that “[o]bjections to any of this testimony would have been sustained because it was inadmissible” and that he was prejudiced because “[the testimony] made him appear violent and dangerous.” Br. of Appellant at 31. The State counters that this testimony was admissible to show Wrinkles’ motive and that he was not prejudiced in light of the facts of the shootings—Wrinkles donned himself in camouflage, cut the phone lines, and shot his wife, brother-in-law, and sister-in-law in the presence of children.
Although evidence of other crimes, wrongs, or acts is not admissible to show action in conformity therewith, such evidence may be admissible for other purposes, such as motive. Evid.R. 404(b); see also Cook v. State, 734 N.E.2d 563, 567 (Ind. 2000) (“[E]vidence of motive is always relevant in the proof of a crime.”), reh’g denied; Charlton v. State, 702 N.E.2d 1045, 1050 (Ind. 1998) (finding evidence of a protective order relevant to show the hostile relationship that existed between the defendant and the victim in order to prove motive for the murder and not unduly prejudicial because of the other “damaging” evidence against the defendant). Accordingly, Wrinkles has failed to prove that an objection to such testimony would have been sustained if made. Further, in light of the fact that Wrinkles admitted shooting Debbie, Mark, and Natalie, he has failed to show prejudice. The post-conviction court did not err in concluding that counsel were not ineffective for failing to object to this testimony.
(4) Prosecutor’s Comments during Closing Argument
During summation the prosecutor referred to Wrinkles as a “psychopath” and “sociopathic.” See footnote Wrinkles contends counsel should have objected because “[t]here was no evidence to support the prosecutor’s labels” and “[t]hese comments could only be meant to inflame the passions or prejudices of the jury.” Br. of Appellant at 32 (quotation omitted).
Wrinkles has not shown that an objection to the prosecutor’s comments would have been sustained if made. There was testimony introduced at trial that Wrinkles had been diagnosed as suffering from at least five mental illnesses. R. at 2994-96. Under those circumstances the comments of the prosecutor were fair characterizations of the evidence. See Miller v. State, 623 N.E.2d 403, 408 (Ind. 1993) (finding no error where the prosecutor called the defendant a disparaging name because he was merely commenting on the evidence). Further, counsel may have had a strategic reason for not objecting, such as that an objection would have called even more attention to the prosecutor’s remarks. See Charlton, 702 N.E.2d at 1051-52 (holding that counsel was not ineffective for failing to object to the prosecutor’s closing argument because counsel could have made a strategic decision not to object). The post-conviction court did not err in concluding that counsel were not ineffective for failing to object to the prosecutor’s remarks in closing argument.
(5) Debbie White’s Testimony
Although she was not listed as a State’s witness, Debbie White, a bookkeeper at Goldman’s Pawn Shop, testified without objection that Mark pawned two shotguns in May 1994. R. at 2498-99. This was the substance of her entire testimony. Counsel then briefly cross-examined her. R. at 2501-02. Wrinkles contends that counsel were ineffective for failing to object because “[h]er testimony undermined the defense theory that the Fulkerson’s house was heavily armed.” Br. of Appellant at 33. Although had counsel objected, the trial court should have granted either a continuance or an adjournment to allow counsel to depose the witness, see Craig v. State, 737 N.E.2d 442, 444 (Ind. Ct. App. 2000), Wrinkles has failed to establish prejudice because he has not shown that counsel would have questioned her differently had she been deposed or a continuance granted. The post-conviction court did not err in concluding that counsel were not ineffective for failing to object to Debbie White’s testimony.
(6) Mishandling of the Murder Weapon
When Officer James VanCleave recovered the murder weapon, a .357 magnum revolver, it appeared to be functioning. However, Sergeant Edward Wessel testified at trial that the weapon was inoperable when he received it for testing and that it took him thirty to forty-five minutes to repair it. R. at 2431, 2477. Wrinkles alleges that the State “mishandled” the weapon while in its possession and that counsel were ineffective for failing to object to its admission because “it was not in substantially the same condition as at the time of the crime.” Br. of Appellant at 33 (quotation omitted).
Wrinkles has failed to prove that an objection would have been sustained if made because the weapon was operable when admitted into evidence and Sergeant Wessel, after repairing the weapon, was able to determine that eleven bullets recovered from the crime scene and the victims’ bodies were fired by the weapon. R. at 2433-34. Further, Wrinkles has not shown prejudice in that he admitted firing the weapon. R. at 2753. The post-conviction court did not err in concluding that counsel were not ineffective for failing to object to the admission of the murder weapon.
D. Failure to Tender Jury Instruction on Life Without Parole
Wrinkles argued before the post-conviction court that counsel were ineffective for failing to tender a jury instruction on life without parole. Indiana Code section 35-50-2-9(d) requires a trial court in a capital case to instruct the jury on the statutory penalties for murder: death, life without parole, or a term of years. Although the trial court failed to give such an instruction, we held on direct appeal that the error was not reversible. Wrinkles, 690 N.E.2d at 1171. Having reached that conclusion, we also conclude that for the same reasons, counsel did not render ineffective assistance. See Douglas v. State, 634 N.E.2d 811, 821 (Ind. Ct. App. 1994) (holding that if there is no reversible error, then the prejudice prong of ineffective assistance of counsel is not met), trans. denied; see also Holleman v. State, 641 N.E.2d 638, 641 (Ind. Ct. App. 1994) (holding that absent a showing of any reversible error at trial, the defendant could not establish on post-conviction that counsel was ineffective), trans. denied.
E. Inadequate Penalty Phase Investigation and Presentation
Before the post-conviction court, Wrinkles claimed ineffective assistance based on counsels’ alleged inadequate investigation for the penalty phase of trial and insufficient presentation of evidence in mitigation of the death sentence. More specifically, Wrinkles argues that counsel “failed to investigate and present the impact of [his] drug addiction on his mental health, as well as other aspects of his background and personality.” Br. of Appellant at 47. He claims that if such evidence had been presented during the penalty phase, the jury would have sentenced him to a term of years rather than death.
The record shows that before the penalty phase of trial began on May 20, 1995, the trial court incorporated the evidence from the guilt phase of trial. R. at 3193. Counsel specifically requested that Dr. Engum’s guilt phase testimony and report be incorporated. R. at 3230. On May 19, 1995, just one day before the penalty phase, Dr. Engum testified in depth about Wrinkles’ various mental illnesses, one of which was “amphetamine dependence, with the likelihood of amphetamine-induced psychotic disorder with delusions, which is basically saying he bec[a]me increasingly paranoid when he would abuse the methamphetamine.” R. at 2994-95. Dr. Engum then explained the effects of Wrinkles’ amphetamine dependence on his behavior. R. at 2995.
Despite this incorporated testimony, Wrinkles argues that counsel should have called an expert during the penalty phase who could “have explained to the jury how dangerously addictive methamphetamine is and how addicts become violent and paranoid.” Br. of Appellant at 55. However, Dr. Engum testified during the guilt phase to just that—“a pretty typical trait of severe methamphetamine abuse [is that the individual] become[s] increasingly aggressive, angry, hostile; in some cases, violent aggressive, but highly paranoid.” R. at 2995. When mitigating evidence has already been presented at the guilt phase of trial, counsel’s failure to duplicate this evidence during the penalty phase of trial does not constitute deficient performance. Wisehart v. State, 693 N.E.2d 23, 48 (Ind. 1998); see also I.C. § 35-50-2-9(d) (providing that the jury “may consider all the evidence introduced at the trial stage of the proceedings [during the penalty phase].”); Benefiel v. State, 716 N.E.2d 906, 913 (Ind. 1999) (“While hearing the same testimony again at the penalty phase might have reinforced the idea that the mental disease discussed during the guilt phase could have mitigating weight, we cannot say that the failure to reintroduce the testimony created a reasonable probability that the jury would have recommended against death.”), cert. denied, 121 S. Ct. 83 (2000).
Wrinkles’ real argument seems to be that counsel should have called an additional expert, such as Dr. Evans or Dr. Smith, during the penalty phase to further explore his methamphetamine addiction. Attorney Vowels testified at the post-conviction hearing that he did not want to dwell on Wrinkles’ methamphetamine addiction during the penalty phase because he did not want Wrinkles to appear as a “heavy doper.” P-C R. at 1327. This was a strategy decision that we will not second-guess. See Lambert, 743 N.E.2d at 743 (holding that it was reasonable for counsel to emphasize the defendant’s character during the penalty phase instead of relying on complicated mental health issues); Timberlake, 690 N.E.2d at 261 (“As a matter of trial strategy, a defense counsel in a capital case may decide what is the best argument to present during the penalty phase. After an investigation into potentially mitigating evidence, a defense counsel may decide that it would be better for his client not to argue, as mitigation evidence, defendant’s background history such as a history of drug abuse and a bad family life.”) (citations omitted); Hayes v. Lockhart, 852 F.2d 339, 352 (8th Cir. 1988) (observing that counsel’s decision not to present additional mitigating evidence regarding defendant’s drinking problem was a “reasonable trial tactic, one that was based upon counsel’s calculated assessment that the risk of probable harm exceeded the possible benefit that might have resulted . . . .”), judgment vacated on other grounds, 491 U.S. 902 (1989).
Wrinkles’ next contention concerns evidence of his background and personality. During the penalty phase of trial, counsel called Steven Brock, a sentencing consultant and mitigation specialist who, before testifying, interviewed approximately forty people including Wrinkles and his family, friends, and customers. R. at 3231, 3237. He also reviewed Wrinkles’ medical and educational records, depositions conducted in the case, and Dr. Engum’s report. R. at 3240. Brock testified in great detail about Wrinkles’ early years, particularly that he grew up in a troubled home with an alcoholic father who physically and verbally abused his wife and children. R. at 3243-47. Brock also identified other mitigators: Wrinkles’ lack of significant criminal history, R. at 3249; he was under extreme mental and emotional disturbance when he committed the murders, R. at 3249; his capacity to appreciate the criminality of his conduct and to conform his conduct to the law was substantially impaired as a result of mental disease or defect, R. at 3249-50; he has a psychological profile as put forth by Dr. Engum as a paranoid individual who sees conspiracies everywhere, R. at 3251; and his daughter Lindsay Wrinkles and the guardians of the Wrinkles and Fulkerson children did not want him executed, R. at 3259. See footnote
In this appeal, Wrinkles challenges Brock’s testimony on two grounds. First, he argues that allowing Brock to testify instead of his family, friends, and customers gave the impression “that Wrinkles had no one who cared about him and had to pay someone to testify on his behalf.” Br. of Appellant at 48. However, this was a tactical decision that we will not second-guess. See Wisehart, 693 N.E.2d at 48 n.26 (“[W]hich witnesses to call is the epitome of a strategic decision.”) (quotation omitted).
Next, Wrinkles argues that Brock left out important information in his summary. For example, Wrinkles points to the following post-conviction witnesses: his mother and brother gave examples of the abuse he received as a child from his alcoholic father; his friends testified that he abused drugs and had not been acting like himself weeks before the murders; and his customers testified that he was a good mechanic who went out of his way for them. However, Wrinkles’ family testified to the same events at the post-conviction hearing that Brock testified to during the penalty phase of trial. Compare P-C R. at 378-88, 389-98 with R. at 3244-46. Therefore, their testimony would have been cumulative to Brock’s testimony. Further, Wrinkles’ drug use was presented during the guilt phase through four lay witnesses, one expert witness, and Wrinkles himself. R. at 2711-12, 2715, 2720, 2722-23, 2834, 2843, 2861-62, 2931-32, 2935-37, 2994-97, 3002, 3006-07. See Wisehart, 693 N.E.2d at 48 (“[W]hen mitigating evidence has already been presented, the failure of counsel to duplicate during the penalty phase the mitigating evidence presented to the jury during the guilt phase does not constitute deficient performance.”). Finally, as far as Wrinkles’ customers are concerned, counsel could have made a decision not to call them because they possibly would have been exposed to Wrinkles’ bad acts on cross-examination. This was a strategy call that we will not second-guess. See Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998) (identifying that “[a] decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess . . . .”). The post-conviction court did not err in concluding that counsel were not ineffective on these grounds.
F. Failure to Present Mitigating Evidence During The Sentencing Phase
Wrinkles argues the post-conviction court erred when it refused to conclude that counsel were ineffective based on their alleged failure to present evidence during the sentencing phase of trial supporting a sentence other than death. Contrary to Wrinkles’ claim, the record shows that counsel prepared a thorough and detailed forty-page sentencing memorandum and attorney Danks made an oral argument to the trial court on why the court should not impose the death penalty. R. at 267-307, 3362, 3368-70.
The record also shows that during the penalty phase of trial counsel presented evidence concerning Wrinkles’ drug use, personality, and social history. To the extent Wrinkles argues that counsel should have presented the evidence anew during the sentencing phase of trial, he is mistaken. Where counsel has already presented mitigating evidence during the guilt phase of trial and discussed it during the penalty phase, presenting the evidence again during the judge sentencing phase of trial is cumulative. Wisehart, 693 N.E.2d at 49. We find no error on this issue.
G. Indiana Criminal Rule 24 Violation
For his last allegation concerning ineffective assistance of trial counsel, Wrinkles argued before the post-conviction court that counsel acted deficiently because throughout his representation each lawyer carried a felony caseload far in excess of that permitted under Indiana Criminal Rule 24(B)(3). The Rule provides in pertinent part: “[a]ppointed counsel shall not accept workloads which, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations.” Id. Salaried or contractual public defenders can only be appointed as trial counsel in capital cases if:
(i)    the public defender’s caseload will not exceed twenty (20) open felony cases while the capital case is pending in the trial court;
(ii)    no new cases will be assigned to the public defender within thirty (30) days of the trial setting in the capital case;
(iii)    none of the public defender’s cases will be set for trial within fifteen (15) days of the trial setting in the capital case; and
(iv)    compensation is provided as specified in paragraph (C).

Ind. Crim. Rule 24(B)(3)(c).

    Although attorney Danks was in compliance with subsection (B)(3)(c)(i) of Rule 24 when he was appointed lead counsel on July 21, 1994, he was out of compliance a month later. When attorney Vowels was appointed co-counsel on July 28, 1994, his inventory of public defender cases totaled forty-two open felony cases, more than twice the maximum permitted. At one point attorney Danks’ felony caseload reached thirty-three while attorney Vowels’ felony caseload reached fifty-six. In February 1995, just three months before Wrinkles’ trial began, attorney Vowels finally asked the trial court to remove him from some cases so he could devote more time to Wrinkles’ case. P-C R. at 575. The trial court subsequently removed attorney Danks from four cases and attorney Vowels from seven cases. P-C R. at 575. However, because lawyers Danks and Vowels did not inform the trial court exactly how many felony cases were in their inventory or how far they were over the twenty-case limit, see P-C R. at 1186, 1231, these removals still did not put them in compliance with subsection (B)(3)(c)(i). Also, in addition to their public defender felony caseloads, both attorneys maintained substantial private practices, and the record is silent on the number of additional private felony cases that counsel carried during their representation of Wrinkles.
    Further, the caseloads of lawyers Danks and Vowels violated subsection (B)(3)(c)(ii) of Rule 24, which prohibits the assignment of new cases to the public defender within thirty days of a capital trial. Attorney Danks was assigned two public defender cases within thirty days of Wrinkles’ trial, and attorney Vowels was assigned five public defender cases within thirty days of Wrinkles’ trial. Attorney Vowels’ caseload also violated subsection (B)(3)(c)(iii) of Rule 24, which specifies that none of the public defender’s cases may be set for trial within fifteen days of the capital trial. Attorney Vowels represented Bruce Anthony at trial on a felony battery charge on May 3, 1995, just eight days before voir dire in Wrinkles’ case.
Wrinkles contends the foregoing Criminal Rule 24 violations created an actual conflict of interest, violated his equal protection and due process rights, and represented ineffective assistance of counsel per se. According to Wrinkles, a new trial is warranted. We recently addressed the remedy for a violation of Criminal Rule 24 in Prowell. In that case, the trial court appointed lawyers Danks and Vowels, the same attorneys as here, to represent Vincent Prowell in a capital case. Attorney Vowels carried a felony caseload in violation of Criminal Rule 24 throughout his representation of Prowell. We determined that the remedy for a Criminal Rule 24 violation is the withholding of fees and expenses. More specifically, we observed that the State may refuse to compensate a county for attorneys’ fees and expenses where a defense attorney is found to be in violation of the caseload limits prescribed by the rule without the court’s permission. Prowell, 741 N.E.2d at 716. “Presumably, the county would then penalize the lawyer who violated the rule by withholding payment for time spent on cases where the rule was violated. Experience suggests that lawyers are likely to observe rules if their paychecks depend on it.” Id. We also noted that trial courts are not expected “to police sua sponte the caseloads of the counsel appearing before them. It is incumbent upon defense counsel to raise any issue presented by counsel’s workload in excess of the limits laid out in the rule.” Id.
Pointing out that both lawyers in this case violated Criminal Rule 24, Wrinkles suggests that the “paycheck” remedy is not sufficient in this case and insists that he is entitled to a new trial. According to Wrinkles, counsel rendered ineffective assistance precisely because they were in non-compliance with Criminal Rule 24. We disagree. The record shows otherwise. Attorney Danks testified at the post-conviction hearing that his caseload did not allow him adequate time to prepare for Wrinkles’ trial. P-C R. at 920. However, he also testified that he never had enough time to prepare for any trial, not just this one. P-C R. at 1147, 1175. Attorney Danks testified further that this lack of time did not interfere with any legal research or interviewing of witnesses. P-C R. at 921. Attorney Vowels testified at the post-conviction hearing that he had enough time to prepare for Wrinkles’ trial. P-C R. at 1325.
The record shows that in preparation for trial both lawyers engaged in the following activities: met regularly to discuss the direction and progress of the case, P-C R. at 1207, 1208, 1317; met with Wrinkles several times before trial, P-C R. at 1162-68, 1296-1310; interviewed witnesses, P-C R. at 568, 1171-72, 1316; consulted numerous times with trial investigator Mark Mabrey, sentencing consultant and mitigation specialist Steven Brock, and neuropsychologist Dr. Eric Engum, P-C R. at 567, 1318, 1321, 2396-97; consulted other experts including Paula Sites, P-C R. at 1297, 1304, 1305, 1307; sought discovery and filed multiple pretrial motions, R. at 29-30, 34-37, 39-40, 42-43; P-C R. at 567, 1313; prepared and filed briefs in support of various motions, R. at 47-94; prepared witnesses for trial, P-C R. at 1043, 1044, 1203, 1204; deposed approximately thirty potential witnesses, P-C R. 1165-66, 1200, 1305-06, 1308; visited the crime scene, P-C R. at 1199, 1322; viewed videotapes and pictures of the crime scene, P-C R. at 1322; and read the police and autopsy reports, P-C R. at 1200-01, 1322.
Attorney Danks’ billing records reflect that he spent 319 hours on Wrinkles’ case, and attorney Vowels’ billing records show that he spent 401 hours on Wrinkles’ case. P-C R. at 1177, 1302, 1310. Both attorneys testified at the post-conviction hearing that they spent more time on Wrinkles’ case than they actually billed for. Norman Lefstein, Dean and Professor of Law at Indiana University School of Law—Indianapolis, testified as an expert on ineffective assistance of counsel and noted that the average time spent on a capital case that goes to jury trial through completion is 1,000 hours for two attorneys. P-C R. at 1702. He testified that that number varies depending on the complexity of the case. P-C R. at 1702. Here, lawyers Danks and Vowels spent more than 720 hours on a capital case in which the defendant confessed. We cannot conclude that the post-conviction court erred in its determination that counsel were not ineffective based solely on their non-compliance with Criminal Rule 24.

Susan K. Carpenter
Public Defender of Indiana

Joanna Green
Laura L. Volk
Linda Hughes
Deputy Public Defenders
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana
    
Thomas D. Perkins
Deputy Attorney General
Indianapolis, Indiana

I concur in all parts of the majority opinion except Part I.C.1, in which the majority categorically prohibits use of the “stun belt” in Indiana courtrooms. I generally agree with the points the majority makes about the use of the belt, and I certainly agree that trial court findings are required before any form of courtroom restraint is to be used. However, trial courts are often faced with hard choices. It is not at all clear to me that the belt is a less desirable alternative to restraints that are plainly visible and convey to the jury the message that the defendant cannot be trusted to comport himself in a manner consistent with courtroom decorum. Indeed, I would think some defendants might, as did Wrinkles in this case, prefer the belt to a gag or more visible restraints. The majority is surely correct that any of these alternatives is to be used only where necessary and where supported by appropriate findings. But where some form of restraint is to be used, I would not categorically prohibit the belt in favor of others that may be even more hostile to a fair trial.
I concur in the majority’s view that Wrinkles had not shown ineffective assistance of counsel for failure to object to the use of the belt. Trial counsel here were faced with a very difficult guilt phase, to say the least. Conviction seems to me to have been virtually a foregone conclusion, with the penalty being the only realistic battleground for defense counsel. To decide not to take issue with the trial judge on this issue would seem to me to be well within the sort of judgment that lawyers are forced to make. Accordingly, I concur in the result reached by the majority.