Susan K. Carpenter
Jeffrey A. Modisett
Arthur Thaddeus Perry
Public Defender of Indiana
John S. Sommer
Deputy Public Defenders
Indianapolis, Indiana ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Susan K. Carpenter
Jeffrey A. Modisett
Arthur Thaddeus Perry
children. He was sentenced to death for each of the three murders. He appeals the denial
of his petition for postconviction relief and raises eight issues, which we restate as four: (1)
ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) the
postconviction court's summary disposition of claims and exclusion of evidence at the
postconviction hearing; and (4) the voluntariness and intelligence of the guilty pleas.
hearing that spanned five days, the postconviction court denied Trueblood's remaining
claims. This appeal ensued.
properly presented in a postconviction proceeding. Woods v. State, 701 N.E.2d 1208 (Ind.
1998). A claim of ineffective assistance of appellate counsel is also an appropriate issue for
postconviction. As a general rule, however, most free-standing claims of error are not
available as such in a postconviction proceeding because of the doctrines of waiver and res
judicata. Some of the same contentions, to varying degrees, may be properly presented in
support of a claim of ineffective assistance of trial or appellate counsel. However,
postconviction counsel run the risk of waiving available claims of ineffectiveness by
presenting them as free-standing claims.See footnote
We address the issues Trueblood raises in this
appeal primarily as claims of ineffective assistance of counsel, but also address those free-
standing claims that are not barred by res judicata or waiver.
probability sufficient to undermine confidence in the outcome. Id. at 694. More recently,
the Supreme Court of the United States held that prejudice resulting from ineffective
assistance is not established unless the error rendered the result of the proceeding
fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122
L. Ed. 2d 180 (1993).
A. Guilty Pleas
Six weeks after being charged with the three murders, Trueblood pleaded guilty without a plea agreement to Susan's murder (Count III). His counsel at that time was Tippecanoe County Public Defender George Wilder. Wilder's appearance was withdrawn almost a year later when he left the public defender's office. Wilder was replaced by Thomas O'Brien and Michael O'Reilly, and a motion to withdraw the guilty plea was filed a few months later. The trial court denied the motion, and two months later a jury trial began for the murders of the children (Counts I and II). After jury selection had been completed and several witnesses had testified, Trueblood pleaded guilty, again without a plea agreement, to the murders of the children.
A few days later Trueblood denied the factual bases of these pleas in a presentence investigation interview with a probation officer. Defense counsel moved for a competency evaluation, and Trueblood was evaluated by a court-appointed psychologist and a psychiatrist, both of whom concluded that he was competent to stand trial, make judgments about a guilty plea, and assist in his defense. Trueblood then moved to withdraw the second guilty plea. Both of his counsel also filed a notice of perjured testimony and sought to
withdraw their appearances on the basis that Trueblood had used them as part of a scheme
to submit to the Court perjured testimony, which broke down the attorney-client
relationship. The trial court denied the motion to withdraw the guilty plea and the motion
to withdraw as counsel.
Trueblood argues that he was denied effective assistance of counsel in each of his three guilty pleas. Trueblood contends that [c]ounsel should not have allowed Trueblood to plead guilty to [Susan's murder] prior to an adequate mental health evaluation, including neuropsychological testing. He makes no further suggestion what an adequate mental health evaluation would have entailed or how its results would have altered the decision to plead guilty. Defense counsel hired a licensed psychiatrist to examine Trueblood within days of his arrest. The psychiatrist's report concluded that Trueblood was fully sane at the time of my interview with him and I have the evidence to suggest that he was also sane at the time of the offense. He is competent to stand trial . . . . In the face of this report, counsel's advice to plead guilty cannot be regarded as below acceptable performance.See footnote 3
Trueblood also argues that he had other potential defenses to Susan's murder, specifically that (1) he fired a mercy shot at Susan only after she attempted to kill herself and (2) that he was upset from a lover's split and was acting under sudden heat when he killed
her. These potential defenses are problematic at best. It is unlikely that a jury would have
bought the mercy killing story, especially in light of Trueblood's brother's trial testimony
that Trueblood confessed to the killings and asked for a shovel with which to bury the
bodies. Moreover, pursuing a voluntary manslaughter defense would almost certainly have
required Trueblood to testify. Although the State has the burden of disproving sudden heat
beyond a reasonable doubt, in order to inject that issue at all, the defendant must point to
some evidence supporting sudden heat. See Wolfe v. State, 426 N.E.2d 647, 652 (Ind.
1981). Because Trueblood was the only surviving occupant of the car at the time of the
killings, evidence of sudden heat could have come only from him. The risk of a devastating
cross-examination was obvious, and the judgment not to expose Trueblood to this cannot be
the basis of ineffective assistance of counsel.
Wilder did not testify at the postconviction hearing, but both Trueblood and the State submitted affidavits from him. The affidavit submitted by Trueblood indicated that the decision to plead guilty was designed to (1) demonstrate Trueblood's cooperativeness and (2) possibly anchor the case before Judge Thayer, whom Wilder believed to be the least likely Judge to sentence Mr. Trueblood to death.See footnote 4 The affidavit submitted by the State
[e]arly on and after a considerable amount of time advising Mr. Trueblood, a strategic decision was made to cooperate as much as prudently possible in the hope of convincing the State of Indiana to dismiss the death penalty or persuading the fact finder--the jury or the judge--not to impose the death penalty. In this regard, and upon the substantial completion of important aspects of the defense investigation, Mr. Trueblood decided to plead guilty to Susan's death because, among other reasons, such a plea was consistent with his account of the events and the plea might enhance the credibility of his case later at a trial as to the children or during the penalty phase of the case by showing he sincerely accepted responsibility for what he had done.
The decision to plead guilty was ultimately Trueblood's. However, that decision required
at least some reliance on the advice of Wilder. The postconviction court found that the
decision to plead guilty to Count III was a matter of strategy and an informed tactical
decision made by Trueblood and his counsel. We agree that Wilder's advice to cooperate
and plead guilty was a reasonable judgment under the circumstances.
Trueblood also argues ineffective assistance relating to the guilty pleas to Counts I and II. These pleas occurred after the State had presented several witnesses at trial. The decision to plead guilty was reached after a lengthy discussion on the evening of the second day of trial testimony. O'Reilly testified in his postconviction deposition that the day before the guilty plea was the roughest day I personally had ever had in court. . . . [and] we knew it wasn't going to get any better. . . . I was looking at that jury and their faces were sober and very, very serious. According to O'Reilly, the decision to plead guilty was left up to Trueblood, after counsel gave him an idea of how the trial was likely to proceed. Counsel
knew what evidence the State had yet to present and viewed it as devastating. Moreover,
had the trial continued, Trueblood's defense was minimal at best. O'Brien stated in his
postconviction deposition that the fact that the victims were children also factored into
counsel's thinking: We felt the nature of the case, being children, that the jury would
recommend [the death penalty] on a conviction and the judge would certainly follow the
jury's recommendation. I thought that his one opportunity may be to avoid the [death]
penalty would be to throw himself on the mercy of [Judge] Melichar. The guilty pleas
allowed trial counsel to devote their time and energy to mitigation rather than spending
several more days defending a guilt phase that appeared hopeless. Trueblood told the
psychiatrist who evaluated his competency one week after this guilty plea that he shared his
attorneys' bleak view of the trial. According to the psychiatrist, Trueblood stated that the
evidence presented in court made a strong impact upon him and when he appraised the
impact the evidence made on the jury and his impression of what his attorneys felt he states
that he decided he would not be acquitted and thus pleaded guilty.
Trueblood contends that counsel were ineffective for pressuring him to plead guilty after he had to witness enormously gruesome autopsy pictures and hear his twin brother testify against him. Trueblood also argues that trial counsel sought to rush a plea and points to the affidavit of Judge Melichar, which states that one of Trueblood's trial attorneys called him at home sometime after 9:00 p.m. to ask him to convene court that evening for a guilty plea hearing. Judge Melichar declined and told the attorney to sleep on it. In the same vein, Trueblood cites his counsel's failure to have him reexamined or assessed by the defense's
neuropsychological expert regarding the voluntariness of the plea. These rather conclusory
allegations all relate to judgments that are required to be made under the pressures of a trial
and as to which there is no correct choice. The postconviction court found that the guilty
pleas occurred after very strong, highly persuasive evidence was submitted to the jury. It
found no deficient performance because Trueblood had conferred with counsel and family
decided to try to cut his losses, short circuit the influence of the evidence on the jury and through the jury to the Judge, and enter a plea of guilty continuing the effort to appear cooperative and compliant and remorseful and attempting to avoid the imposition of the death penalty.
The postconviction court's finding is fully supported by the record.
B. Penalty/Sentencing Hearing
Trueblood also contends that he was denied the effective assistance of counsel by the alleged failure of trial counsel to investigate and present more mitigating evidence. Trueblood's primary argument in this appeal is that trial counsel were ineffective for failing to present evidence relating to his neurocognitive deficits.See footnote 5 However, Trueblood's trial counsel employed several experts who examined various aspects of his mental health. These included Dr. Larry Davis, a licensed psychiatrist;See footnote 6 Dr. Diane Follingstad, a clinical
psychologist;See footnote 7 Dr. Thomas Curfman, a neurologist;See footnote 8 Drs. Richard Loughead and Kathryn Black, both psychologists;See footnote 9 and Dr. Raymond Horn, a clinical neuropsychologist.See footnote 10 Drs. Follingstad and Loughead testified during the sentencing phase/hearing. In addition, upon oral motion of defense counsel the trial court appointed Dr. Richard Rahdert, a psychiatrist, and Dr. Brian Primeau,See footnote 11 a clinical psychologist, to examine Trueblood days after his second
guilty plea to evaluate his competency to stand trial on the death counts.See footnote
In addition to this
expert testimony, trial counsel also called eleven other witnesses, most of whom were
Trueblood's brief summarizes with approval the postconviction court's findings relating to his brain dysfunction as affecting his ability to problem solve, reason, extrapolate, and understand. . . . Trueblood has a problem with his visual spatial reasoning and is more distractible than normal people. Finally, . . . Trueblood has trouble seeing options, difficulty weighing alternatives or options, difficulty generating alternative ideas. This finding was based on the testimony of Dr. Gelbort, who testified at postconviction about various neurocognitive deficits, as well as Dr. Horn, who was hired by the defense before trial but did not testify.
Trueblood argues that trial counsel should have presented the testimony of Dr. Horn and related testimony dealing with his neuropsychological deficits. Although he makes the bold assertion that, [h]ad this type of mitigation been presented, then the trial court would have found both statutory and non-statutory mitigation related to mental health, the postconviction court, which heard this testimony, found the selection of witnesses to be a
strategy call. We agree.See footnote
As noted above, trial counsel went to considerable time and expense in investigating possible mental health mitigating evidence through several witnesses. Trueblood contends that the decision not to call Dr. Horn was uninformed and could not be a matter of strategy, because it was based either on lack of knowledge or on the failure to conduct a proper investigation. Both trial counsel rebutted this. Each testified that Dr. Horn's testimony was not presented because of an anticipated conflict with the testimony of Dr. Follingstad.See footnote 14 Trueblood contends that trial counsel should have consulted the experts regarding the potential conflict, concluded there was no conflict, and presented the testimony of Dr. Horn. This decision is plainly a judgment call that does not rise to the level of constitutionally
Trueblood also argues that trial counsel were ineffective for failing to present evidence suggesting that he may have been suffering from post-traumatic stress disorder (PTSD). The postconviction court found
[t]here is no evidence before the court that there was any indication to trial counsel that they should have been aware of that issue, that they knew of that issue, or that it was an issue which should be looked into . . . . Other experts in the mental health field who examined the Petitioner were not aware o[f] any post-traumatic stress disorder or even any symptoms or indication that there might be a problem . . . . Even if there might have been symptoms of post-traumatic stress disorder, there is no evidence before the court that it substantively affected Petitioner's ability to participate in [his defense].
Trueblood asserts that the State presented no experts qualified to challenge his
postconviction expert's finding of PTSD and that some of the expert testimony available to
trial counsel prior to sentencing suggested symptoms of PTSD. As explained above, trial
counsel hired several experts to prepare mitigating evidence for the penalty phase and
sentencing hearing. If none of those experts told trial counsel that Trueblood was, or may
be, suffering from PTSD, counsel cannot be declared ineffective for failing to pursue the
Trueblood also contends that trial counsel were ineffective for failing to present eyewitness testimony relating to an incident in which he saved a woman's life by pulling her from a burning building.See footnote 15 Trial counsel presented evidence of this event in mitigation
through the unverified hearsay testimony of both of Trueblood's parents. We held on direct
appeal that this testimony was admissible under the evidentiary standards applicable to
sentencing hearings but the trial judge was not obliged to credit it. The trial court did not err
in failing to find this as a mitigating circumstance. Trueblood v. State, 587 N.E.2d 105, 111
(Ind. 1992). Trueblood argues in this appeal that counsel should have presented the
testimony of his wife who witnessed the rescue.See footnote
However, he concedes that trial counsel
did not know that she had witnessed the rescue. Moreover, trial counsel presented
admissible evidence in support of this potentially mitigating factor. The failure to discover
and present direct eyewitness testimony is not deficient performance. Nor is there a
reasonable probability that its presentation would have changed the trial court's decision to
impose the death sentences.
Trueblood also contends that trial counsel should have sought a change of judge after his unsuccessful attempt to withdraw his second guilty plea led the trial judge to state on the record that he believed Trueblood was lying and his changed testimony was a counterfeit. However, Trueblood does not argue that, had a change of judge been requested, it would have been granted. More importantly, trial counsel O'Brien testified in his postconviction deposition that he and O'Reilly wanted the case to remain before Judge Melichar. We had a lot of faith in Melichar. Even after he called Trueblood a
counterfeit and denied the motion to withdraw the second guilty plea, we still felt that he
would be . . . our best opportunity or the best judge. Trueblood points to nothing rebutting
the presumption of competence in this evaluation.
Trueblood next argues that trial counsel were ineffective for failing to adequately prepare the mitigation witnesses[.] He asserts that had trial counsel better prepared witnesses who testified about his good conduct in jail while awaiting trial that this Court would have not concluded [t]his evidence does not compel a finding of good behavior as mitigation. See Trueblood, 587 N.E.2d at 110. Trueblood offers no specifics as to what should have been done differently. Moreover, we reviewed this testimony on direct appeal and noted that two of three corrections officers who testified had had problems with Trueblood on one or two occasions. Id. Trueblood does not contend that calling other witnesses would have contradicted this negative testimony or that trial counsel could have somehow prepared the witnesses in a manner to keep this information from the trial court. There is no deficient performance here.
Trueblood also contends that trial counsel either did not interview, adequately prepare, or present other witnesses. Many of these witnesses were, however, interviewed by either Trueblood's mitigation expert or trial investigator. Trueblood suggests that a more thorough investigation or the presentation of additional witnesses would have revealed more detailed information about Trueblood's family background and abusive childhood. Trial counsel presented a substantial body of evidence on this subject. In addition to expert testimony of Drs. Follingstad and Loughead, trial counsel presented the testimony of both
of Trueblood's parents, Trueblood's sisters Elaine and Kelly, his brother David, his brother-
in-law, his ex-brother-in law, and a man who had known Trueblood since he was born.
The trial court's sentencing order found as a mitigating circumstance that Trueblood was
abused as a child and raised in an environment of physical and emotional abuse. Some
improvement can be found in hindsight in any trial presentation. The deficiencies argued by
Trueblood in this appeal do not approach the showing necessary to overcome the strong
presumption of counsel's competence. Moreover, Trueblood points to nothing to lead us to
believe that more of this same sort of evidence would have affected the sentence.See footnote
Trueblood also asserts that trial counsel were ineffective for failing to object to the State's rebuttal testimony by a detective regarding Trueblood's juvenile record.See footnote 18 However, the sentencing order makes no mention of a juvenile record and even lists as a mitigating circumstance that the defendant has no significant history or prior criminal conduct. A few weeks after the detective testified, the probation officer who prepared the presentence report filed an addendum that stated he had found no juvenile criminal history in court records.See footnote 19
In light of the trial court's finding of a lack of criminal history, Trueblood has not
demonstrated any prejudice by counsel's failure to object, even if the unspecified ground for
objection were valid. Cf. Prowell v. State, 687 N.E.2d 563, 565 (Ind. 1997), cert. denied ___
U.S. ___, 119 S. Ct. 104, 142 L. Ed. 2d 83 (1998) (concluding that any error in admitting
victim impact evidence was harmless under Trial Rule 61 because the trial court's sentencing
order did not refer to any victim impact evidence).
Trueblood similarly argues that trial counsel were ineffective for failing to raise objections to hearsay accounts of Trueblood's prior domestic abuse of Susan. He points to two specific instances in which he alleges that trial counsel improperly elicited alleged hearsay. On the first of these, counsel asked a friend of Susan's whether the friend's testimony of domestic abuse had been a recitation of what Susan had told her, rather than something she had witnessed herself. On the second, counsel asked Susan's brother's girlfriend if Susan had ever related any threats against her or her children. Trial counsel asked both of these questions in an attempt to minimize the testimony of domestic abuse by showing that (1) the witness had not directly witnessed the abuse but was relating it secondhand and (2) although Trueblood may have abused Susan, he had not threatened her or her children. Moreover, hearsay testimony was admissible during sentencing hearings under the law existing at the time of Trueblood's sentencing hearing. See, e.g., Letica v. State, 569 N.E.2d 952, 957 (Ind. 1991).See footnote 20
aggravating circumstances; and (d) the proportionality and appropriateness of his sentence.See footnote
Trueblood also asks that we consider the cumulative effect of these issues.
The standard of review for a claim of ineffective assistance of appellate counsel is the same as for trial counsel. Lowery v. State, 640 N.E.2d 1031, 1048 (Ind. 1994). As to the adequacy of the record, Trueblood's argument consists of one sentence: Appellate counsel failed to compile and file an adequate record for this Court's review. He expands only slightly in his reply brief by quoting from a hearing on his trial counsel's oral motion to allow Trueblood to visit the victims' gravesite. It is unclear how this transcript relates to any issue raised on direct appeal, and Trueblood does not explain how it gives rise to any other issue that should have been raised.See footnote 23
Trueblood next contends that appellate counsel should have challenged the State's presentation of gruesome . . . slides of the decomposing and bloated nude children . . . . Trueblood argues that the gruesomeness of the slides rendered him unable to sit through their presentation a second time and their use broke his will to challenge the State's case. Because Trueblood was not convicted at trial but rather pleaded guilty, whether or not these photographs were properly admitted during a trial that was never completed is relevant only to the extent that it bears on the voluntariness of Trueblood's guilty plea. This issue was
properly raised for the first time at the postconviction hearing. It could not have been raised
on direct appeal. See Prowell v. State, 687 N.E.2d 563, 564 n.1 (Ind. 1997) (when a
defendant pleads guilty, he may challenge only sentencing errors on direct appeal, not
alleged errors involving his guilty plea or conviction) (citing Tumulty v. State, 666 N.E.2d
394 (Ind. 1996)) (emphasis in original). Therefore, appellate counsel cannot be declared
ineffective for raising a claim that this Court would not have considered.
Trueblood also argues that appellate counsel failed to challenge the State's improper use of hearsay in its rebuttal case. He provides no citation to the record or authority and develops no argument beyond referring us to his contentions as to his trial counsel's failure to object to evidence of domestic abuse. This contention was resolved against him in Part I.B. of this opinion. For the same reasons, the failure to raise this claim on direct appeal was not appellate ineffectiveness.
Trueblood also raises appellate counsel's handling of some sentencing issues.See footnote 24 First, he contends that if his mitigation had been adequately presented at trial and on appeal, then Trueblood would not be facing the death penalty. The claim of trial counsel ineffectiveness for failing to present mitigating evidence was resolved against Trueblood in Part I.B. of this opinion. As a result, he cannot succeed in a claim of appellate ineffectiveness for failure to argue that trial counsel were ineffective for failing to present more mitigating evidence.
determination is necessarily fact sensitive, and not every plea of guilty is a significant
mitigating circumstance that must be credited by a trial court.
After entering the pleas, Trueblood later sought to withdraw from both guilty pleas. The second guilty plea involved Trueblood's recantation of the sworn version of events given in court during the guilty plea hearing and did not occur until after several days were spent selecting a jury and the State had presented several witnesses. Although the guilty pleas saved some trial court and State time and expense, the benefits were much less than that of the typical guilty plea that occurs before a trial is scheduled to begin. The plea saved virtually no preparation time for the State. The variations in Trueblood's story and attempts to withdraw his guilty pleas understandably frustrated the trial judge. Moreover, one of the issues presented to this Court on direct appeal was that the trial court erred in refusing to allow Trueblood to withdraw his guilty plea. See Trueblood v. State, 587 N.E.2d 105, 107 (Ind. 1992). It would have been highly inconsistent to argue in the same brief that the same guilty pleas that the trial court erroneously refused to vacate should be considered as a mitigating circumstance. Although Trueblood plainly had the right to challenge the guilty pleas, in doing so he refused to take responsibility for the offenses. In sum, appellate counsel were not deficient for failing to raise this issue on direct appeal, and Trueblood has not demonstrated any prejudice as a result of this omission.See footnote 26
required and to indicate the evaluation given to mitigating circumstances). The trial
judge would certainly have rectified its omission, and this Court would have similarly
affirmed the death sentence as to Count III. Trueblood has failed to demonstrate prejudice
as the result of appellate counsel's failure to raise this issue on direct appeal.
Trueblood also contends that appellate counsel did not adequately challenge the trial court's reliance on non-statutory aggravating circumstances. On direct appeal, Trueblood challenged the trial court's finding as an aggravating circumstance that the murders were cold-blooded and premeditated. Trueblood did not argue that it was improper to consider this or any other non-statutory aggravating circumstances, but rather argued that this specific factor was not supported by the record. Trueblood, 587 N.E.2d at 111. Nearly three years after we issued Trueblood's direct appeal opinion, we held that [w]hen the death sentence is sought, courts must henceforth limit the aggravating circumstances eligible for consideration to those specified in the death penalty statute, Indiana Code Section 35-50-2- 9(b). Bivins v. State, 642 N.E.2d 928, 955 (Ind. 1994). Because our holding in Bivins was not based on statutory construction but rather was a new rule of state constitutional law, we held that it would not be applicable to cases on collateral review. Id. at 956. Accordingly, Trueblood is not entitled to the retroactive benefit of Bivins. Moreover, appellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in the existing law. See Harrison v. State, 707 N.E.2d 767, 776 (Ind. 1999).
Because Bivins is not retroactive, Trueblood's claim that the trial court found two mitigating circumstances and then expressly weighed them against non-statutory
aggravators is similarly without merit. Under the law existing at the time of trial, the trial court could have found Trueblood's acts of spousal abuse and acts of violence during his adult life as aggravating circumstances.See footnote 29 See, e.g., Minnick v. State, 544 N.E.2d 471, 482 (Ind. 1989) (as long as at least one of the aggravating circumstances from the death penalty statute is proven and set forth in the sentencing statement, a trial court may find the existence of other statutory aggravators and consider them in regard to capital sentencing). Therefore, appellate counsel were not ineffective for failing to argue that the trial court erred when it mentioned these acts during its description of mitigating circumstances. Nor were appellate counsel ineffective for failing to challenge the trial court's finding as a mitigating circumstance that Trueblood had provided less than candid or honest assistance to law enforcement authorities. We disagree with Trueblood's conclusion that this statement must be considered as a finding of aggravation. Rather, this statement suggests the finding of a mitigating circumstance -- assistance to law enforcement authorities -- tempered by the fact that this assistance was less than candid at times. It is consistent with our mandate that trial courts not only identify mitigating circumstances but also state the facts and reasons that support the mitigating circumstance. Because raising this issue on direct appeal would not have affected this Court's affirmance of the death sentences, appellate counsel cannot be held ineffective for omitting it.
The trial court then found that the previously mentioned aggravating circumstances
outweighed the mitigating circumstances and imposed the death sentences. Trueblood
asserts that because the findings quoted above cannot possibly be considered mitigating,
they can only be viewed as aggravating. Sentencing issues are especially fact sensitive and
black and white distinctions are oftentimes not possible. It appears that the trial court was
merely being thorough by specifically finding that some of the delineated statutory mitigating
circumstances suggested by Trueblood at either the sentencing hearing or through his
amended version of the killings did not apply to his case. See Ind. Code § 35-50-2-9(c)(3)
([t]he victim was a participant in or consented to the defendant's conduct); id. § 35-38-1-
7.1(c)(5) ([t]he person acted under strong provocation); id. § 35-50-2-9(c)(2) ([t]he
defendant was under the influence of extreme mental or emotional disturbance when the
murder was committed). Appellate counsel were not ineffective for failing to challenge this
part of the sentencing order.
As a final point, Trueblood contends that his death sentences are disproportionate
under the Indiana ConstitutionSee footnote 30 and inappropriate under our case law. These issues were available but not raised in his direct appeal. Accordingly, they are waived on postconviction. Lowery, 640 N.E.2d at 1036-37.See footnote 31 Although available as claims of ineffective assistance of appellate counsel, we cannot say that appellate counsel were ineffective for failing to raise these claims. As this Court recently observed in Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), appellate courts should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case . . . . Appellate counsel raised two claims of sentencing error on direct appeal, and our direct appeal opinion spent two pages of the North Eastern Reporter addressing them. See Trueblood, 587 N.E.2d at 110-11. Counsel were not deficient for failing to raise these issues that were unlikely to succeed in light of the severe nature of the killing of a woman and her two children. Cf. Harrison v. State, 659 N.E.2d 480, 483 (Ind. 1995) (affirming death
sentence in case involving the killing of two children).See footnote
We find no merit in the individual allegations of appellate counsel ineffectiveness. We similarly conclude the cumulative effect of these alleged errors did not deny Trueblood his Sixth Amendment right to effective assistance of counsel on direct appeal.
is on the moving party to prove each element of its claim by admissible evidence and to
establish that there are no genuine issues of material fact and that the moving party is entitled
to judgment as a matter of law. State v. Daniels, 680 N.E.2d 829, 832 (Ind. 1997). Once the
movant has met this burden, the opponent must respond by setting forth specific facts
showing a genuine issue for trial; the opponent may not simply rest on the allegations of the
The State raised several issues in its summary judgment motion.See footnote 33 Trueblood argues that the State's summary judgment should have been denied but does not argue any specific genuine issues of material fact and provides no citations to authority suggesting that the grant of summary judgment was in any way improper as a matter of law. Rather, his attack focuses on alleged inadequacies of the State's motion and its paucity of citations to authority. This is not enough. On appellate review from a grant of summary judgment against a party, the nonmoving party has the burden of demonstrating that the grant of summary judgment was error. Erie Ins. Co. v. George, 681 N.E.2d 183, 186 (Ind. 1997) (citing Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 280-81 (Ind. 1994)). Although we carefully assess the trial court's decision to ensure that the nonmoving party was not improperly
denied its day in court, see id., Trueblood points to no genuine issues of material fact.
Accordingly, he has not met his burden of demonstrating that the postconviction court erred
in granting the State's summary judgment motion.
Trueblood's motion sought summary judgment on three issues.See footnote 34 As we understand it, Trueblood's argument in this appeal is not that the postconviction court erred by denying him summary judgment, but rather that it erred by summarily dismissing these claims after the denial of summary judgment. Indeed, Trueblood does not allege the absence of a genuine issue of material fact in relation to any of these issues, nor does he cite any authority or otherwise suggest that he was entitled to judgment on these claims as a matter of law. Accordingly, we have no basis on which to find that the postconviction court erred by denying Trueblood's summary judgment motion.See footnote 35
Trueblood also asserts that the postconviction court erred by summarily dismissing many of his other claims.See footnote 36 Some of these were held barred either by waiver for the failure
to raise them on direct appeal or by res judicata because they were adversely decided against
Trueblood on direct appeal. See, e.g., Lowery v. State, 640 N.E.2d 1031, 1036-37 (Ind.
1994) (explaining waiver and res judicata). In the absence of any specific claim of error,
summary dismissal of these claims on the ground that they entitle Trueblood to no relief
presents no basis for reversal of the postconviction court. See P-C.R. 1(4)(f) ([i]f the
pleadings conclusively show that petitioner is entitled to no relief, the court may deny the
petition without further proceedings); Robinson v. State, 493 N.E.2d 765, 767 (Ind. 1986)
(when the petition conclusively demonstrates that petitioner is entitled to no relief, a hearing
on the matter is unnecessary and the petition may be denied without further proceedings).
B. Exclusion of Evidence at the Postconviction Hearing
At the postconviction hearing, Trueblood attempted to introduce several affidavits from relatives and a family friend. The State objected, and the postconviction court sustained some of the objections to certain paragraphs, mostly on grounds of relevance or cumulativeness. Trueblood argues that the trial court erred in excluding these items, which he contends contain potentially mitigating evidence.
Trueblood characterizes the excluded evidence as concerning sexual abuse/molestation of the Trueblood boys at the hands of a family friend and the effects of that abuse.See footnote 37 The family friend briefly lived with his girlfriend in the Trueblood's home in
1971. The excluded part of the friend's affidavit dealt with alleged encounters with
Trueblood's brothers. As such it was of minimal relevance to the claim of ineffective
assistance of counsel before the postconviction court. Sexual abuse of Trueblood's brothers
is not a mitigating factor, and the only mention of Trueblood in any of these affidavits is the
contention that the friend patted him and his brothers on the head and on the ass. Under
these circumstances, the postconviction court did not abuse its discretion by excluding this
Trueblood also argues that the postconviction court erred by excluding two affidavits offered by him in rebuttal.See footnote 38 The first was from Dr. Michael Clark, the pathologist who supervised the autopsy of Susan. The affidavit commented on the findings from the autopsy report that there was semen in Susan's vagina and no injury to the vaginal area. Dr. Clark's affidavit concluded that there was no reliable way to determine whether the sperm found in Susan's vagina was deposited before or after death but that [i]ntercourse occurring after death usually causes some injury to the vaginal area. Trueblood contends that this affidavit was offered to discredit[ ] the State's theory that the defense's failure to test the semen was a strategy decision. This referred to defense investigator Lindblom's testimony at
postconviction that defense counsel chose not to have the semen tested because (1) it might
not have been Trueblood's and (2) if it turned out to be Trueblood's the State could claim
that Trueblood had raped Susan or that the semen had been deposited post-mortem.
Although this affidavit arguably negated the factual predicate for one of Lindblom's
alternative reasons for concern, it left the other undisturbed. The postconviction court was
within its discretion in ruling that this evidence did not rebut anything the State presented.
The second excluded affidavit was from Dr. Follingstad who had testified for Trueblood at his sentencing hearing. The postconviction court denied admission of all but one paragraph of the affidavit on the basis that it was not rebuttal. Rather, in the postconviction court's view, it was mainly submitted to supplement and support the theory of post traumatic stress, which was part of the case in chief. Trueblood contends that the affidavit was offered to rebut the testimony of Dr. Primeau and Dr. Rahdert who he contends were called by the State to show that he did not exhibit signs of PTSD. However, in an earlier section of his brief he asserts that both observed PTSD symptoms.
[Dr.] Primeau acknowledged that Trueblood reported that he slept poorly because he had nightmares, a symptom Primeau associated with PTSD. Primeau wishes he had explored the nightmares more with Trueblood. [Dr.] Rahdert also conceded that Trueblood must have had nightmares at the time, which some people with post- traumatic stress disorder do have. The re-living of the event. The State's witnesses observed symptoms of PTSD in Trueblood.
We agree with the postconviction court that Dr. Follingstad's affidavit should have been submitted as part of the case in chief, if at all. The postconviction court did not abuse its discretion by excluding it.
no idea of the State's case, due to a failure to investigate. Moreover, he asserts that the
guilty plea was the product of Wilder's agenda to persuade him to plead guilty
immediately and thus Wilder exploited Trueblood's deficits in pursuing that agenda.
Finally, Trueblood asserts that Wilder was unaware of the possibility of the death sentence,
and failed to convey that possibility to Trueblood, and that Trueblood believed, in light of
his conversations with others, that he would serve no more than fifteen years in prison if he
pleaded guilty to Susan's murder.
Trueblood contends that the second guilty plea was involuntary because it occurred immediately following two days of the State's presentation of evidence, which included several very graphic or gruesome crime scene and autopsy photographs. Trueblood was visibly shaken by these photographs and requested to be excused while the remaining photographs were shown. Trueblood argues that, because of his neurocognitive deficits, he did not have the mental and emotional capacity to deal with the quickly unfolding situation before him. Moreover, his PTSD impaired his ability to concentrate and think clearly where the subject matter triggered sensations from the trauma.
Indiana Code § 35-35-1-2(a) requires trial courts, before accepting a guilty plea, to determine that the defendant (1) understands the nature of the charges; (2) has been informed that his guilty plea effectively waives several constitutional rights including a public and speedy trial by jury, confrontation of witnesses, compulsory process, and proof of guilt beyond a reasonable doubt without self-incrimination; (3) has been informed of the maximum and minimum sentences for the crime charged; and (4) has been informed that if
the court accepts a plea agreement it is bound by its terms. If this statute is followed in
textbook or near-textbook fashion, as it was in this case, a defendant faces a high burden in
establishing a lack of voluntariness. State v. Moore, 678 N.E.2d 1258, 1267 (Ind. 1997),
cert. denied ___ U.S. ___, 118 S. Ct. 1528, 140 L. Ed. 2d 678 (1998); see also White v.
State, 497 N.E.2d 893, 905 (Ind. 1986) (A plea entered after the trial judge has reviewed
the various rights which a defendant is waiving and made the inquiries called for in the
statute is unlikely to be found wanting in a collateral attack.). However, defendants who
can show they were coerced or misled into pleading guilty by the judge, prosecutor or
defense counsel present a colorable claim that their plea was not voluntary. Moore, 678
N.E.2d at 1266 (citing White, 497 N.E.2d at 905-06)). We review all the evidence before
the postconviction court, including the testimony at the postconviction hearing, the transcript
of the petitioner's original sentencing, and any plea agreement or other exhibits that are part
of the record. White, 497 N.E.2d at 905.
At both guilty plea hearings, Trueblood stated that he was not suffering from any mental or emotional disability and that his pleas were free and voluntary.See footnote 40 This satisfied the statutory requirement that a trial court may accept a plea of guilty only after determining whether any promises, force, or threats were used to obtain the plea. Ind. Code § 35-35-1- 3(a) (1998). Moreover, as explained in Part I.B. supra, Trueblood was examined by Dr. Davis before the first guilty plea and several other mental health experts before the second
plea. The postconviction court found that
[p]sychologists and psychoneurologists and others and a thorough examination of the mental health of the Petitioner was conducted. All of the issues were considered that could be considered both in regard to the Petitioner's mental health at the time of the commission of the crimes and [at] the time of the submission of the guilty pleas. There is nothing about any of the findings of any of the mental health experts which either alone or in combination with other factors would render the Petitioner incompetent to enter a plea or which would render any of his pleas unknowing, involuntary, or unintelligent.
According to Trueblood's brief, his greatest difficulties lie in his complex reasoning,
especially processing non-verbal information. The guilty plea hearings and discussions with
counsel preceding those hearings were verbal. There was no written plea agreement involved
in either guilty plea and the trial court orally advised Trueblood of the charges against him
and the rights being given up by pleading guilty. Whatever the effects of Trueblood's
exposure to graphic photographs and listening to his twin brother's testimony against him,
he did not persuade the postconviction court that these events rendered him incapable of
entering into the second guilty pleas intelligently and voluntarily. That determination is
certainly not clearly erroneous in light of the fact that this plea occurred the morning after
this evidence was presented and after lengthy discussion with counsel that evening.
In addition to the contentions addressed in Part I that trial counsel had not conducted an adequate investigation at the time of the plea,See footnote 41 Trueblood also suggests that Wilder's
actions coerced him into pleading guilty. In support of this contention, Trueblood cites to
an in-chambers hearing regarding his request to visit the victims' gravesite. Without citation
to the record, he asserts that he asked to visit the cemetery to pay his last respects but that
Wilder instead had him taken to the place where he allegedly buried the bodies, which re-
traumatized him and caused his trust in Wilder to be shattered. Wilder's affidavit refers
to the gravesite as where the bodies had been buried, and indicated that the visitation there
was necessary to meet Trueblood's urgent and at times emotional requests for such a
visitation. The affidavit clearly indicates that this request was in addition to any request to
visit the cemetery. Moreover, defense investigator Lindblom testified at postconviction that
his recollection was that Trueblood wanted to visit the site where he last had contact with
[the victims], which was the one where he buried them. Trueblood's contention is not
supported by the record and there is no other evidence that Wilder in any manner coerced
his guilty plea.
Trueblood also asserts that he believed, in light of his conversations with Wilder and others, that he would be serving no more than fifteen years in prison as a result of the first guilty plea. However, a mere hope for a certain outcome at sentencing, without more, does not suffice to set aside a guilty plea for lack of voluntariness. Moore, 678 N.E.2d at 1267. Rather, we look to the entire record and note that Trueblood was specifically advised at the conclusion of the guilty plea hearing that he could be sentenced to death for Susan's
This was consistent with the initial hearing on the death penalty counts at which
Trueblood was advised that the State was seeking the death penalty for each of the three
murders for which he was charged.
In sum, the postconviction court concluded that the guilty pleas were voluntary and intelligent and refused to vacate them. That determination turned on factual issues and is therefore entitled deference on appeal. See Harrison v. State, 707 N.E.2d 767, 773 (Ind. 1999). Because Trueblood has not convinced this Court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court, see id. at 774, we affirm the postconviction court's conclusion that the guilty pleas were voluntary and intelligent.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
of the transfer in this appeal.
to sentencing hearings).
see how the excluded evidence was not cumulative and therefore how it was relevant to a claim of trial counsel ineffectiveness for the failure to present mitigating evidence when enough mitigating evidence was presented to warrant the trial court's finding of mitigation.
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