ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Jeffrey Modisett
Public Defender of Indiana Attorney General of Indiana
J. Jeffreys Merryman, Jr. Arthur Thaddeus Perry
Deputy Public Defender Deputy Attorney General
Steven H. Schutte
Deputy Public Defender
SUPREME COURT OF INDIANA
ALAN L. MATHENEY, ) ) Appellant (Petitioner Below ), ) ) v. ) CAUSE NO. 45S00-9207-PD-584 ) STATE OF INDIANA, ) ) Appellee (Respondent Below ). )
SHEPARD, Chief Justice.
Alan L. Matheney filed a petition for post-conviction relief challenging his conviction and death sentence for the murder of his former wife. Judge Richard J. Conroy denied Matheney's petition, and Matheney appeals. We affirm.
Weatherford, 619 N.E.2d at 917; Lowe v. State, 455 N.E.2d 1126
(Ind. 1983). If the evidence does not unswervingly point in that
direction, the decision of the post-conviction court will stand.
of Matheney's competence, and returned with a decision to deny the
motion to stay the proceedings. (P.C.R. at 1359-61.)
Counsel presses two arguments on this front: first, whether
or not the facts show Matheney "incompetent," or unable to assist
his counsel in the preparation of his case and to understand the
nature of the post-conviction proceedings; and second, even if he
is "incompetent," whether "competence," as that term is understood
in cases addressing a defendant's due process rights at trial, see,
e.g., Cooper v. Oklahoma, 116 S. Ct. 1373, 1376-77 (1996), applies
to post-conviction proceedings. The post-conviction court found
against Matheney on both issues. Because we conclude that
Matheney's mental state did not make him unable to proceed, we
affirm the trial court's factual finding about competence. We
therefore leave for another day the Attorney General's plausible
contention that a post-conviction petitioner need only be able to
assist counsel sufficiently to permit performance adequate under
Baum v. State, 533 N.E.2d 1200 (Ind. 1989) (holding that post-
conviction proceedings are not subject to Sixth Amendment or
Article I, section 13 guarantees).
The record shows that Matheney believes there to be an organized, systematic conspiracy designed to persecute him, originally spearheaded by his now deceased ex-wife and the prosecutor who tried his criminal battery case. According to his attorneys, Matheney believes this alleged conspiracy to be the only
issue relevant to his case, and he will not cooperate with them if
he does not find his attorneys' actions or strategic decisions
relevant to exposing this conspiracy against him. His counsel and
a psychiatrist for the defense claim that Matheney's belief results
from a mental disease which causes him to see the world only
through a deluded version of reality, namely the conspiracy.
Our review of the record causes us to agree with the post-
conviction court's ruling on Matheney's competency. First,
Matheney was able to understand the nature of the proceedings
against him. Magistrate Page stated,
The repeated pro se criticisms of the attorneys, the courts, and the rulings on the admissibility of evidence, all are in themselves sufficient to support the conclusion that the petitioner has always had a very clear understanding of the nature of the proceedings even if he did not agree with others' opinions of what should be presented in those proceedings.
(P.C.R. at 935-36.) The following colloquy between the magistrate
and Matheney supports the court's assessment of Matheney's ability
to understand legal strategy and the nature of the proceedings in
which he found himself:
Q. Mr. Matheney, do you know who I am?
. . . .
A. Magistrate Page.
Q. And do you know what my function is here?
A. Today you are presiding over this post conviction
hearing . . . .
Q. What is a post conviction hearing?
A. The attack of the legalities of your conviction,
whether it was legal or illegal, to bring up issues
that you feel that a defendant has a right to a new
trial or sentence relief or whatever.
. . . .
Q. Your attorneys have filed a Petition for Post
Conviction Relief, in which numerous grounds are
alleged. Have you had an occasion to read this
A. I read it a couple of times, and I just paid
attention to the grounds that pertained to me.
There's a lot of stuff in there, statutorily, that
they put in everybody's death penalty; and I didn't
pay too much attention to, because they've already
been ruled on over and over again.
Q. And the doctor said that you felt or seemed to
indicate or give the impression that you felt that
these issues were frivolous, because the only issue
you feel is relevant is the one about [the alleged
conspiracy between your wife and the prosecuting
attorney at your trial] or this --
A. No. There's a lot of issues in there that I agree
with. The only ones that I didn't agree with were
the ones that they keep putting in everybody's
issue, that the Supreme Court keeps turning down.
. . . .
Q. Well, the general challenges to the death penalty
A. Right, yes.
Q. You feel that those are a waste of time because of
the previous rulings of the Supreme Court?
A. Yeah. When I discussed them, they said, well, you
never know when you're going to get a new Supreme
Court; but a new Supreme Court don't come along
often enough in this decade.
Q. Does that seem unreasonable for them to take that
position? Have you not seen cases where a court
will rule the same way over and over again; and
then all of a sudden, along comes the same question
and they say, well, now that we think about it,
we've changed our mind?
A. Yeah, I've seen cases like that. I just felt that
there could have been more issues investigated and
put in this than what was.
Q. Your attorneys have suggested that the failure to
include additional grounds are a result of you
specifically instructing others not to cooperate.
Is that the fact of the matter?
A. I believe during this whole thing that they want to
investigate my childhood. Well, that has
absolutely nothing -- what I repeatedly told them,
over and over again, is that what you should
concentrate on is what had taken place, you know,
the death of Lisa Bianco, and what caused it; and
we should concentrate on investigating this
particular, you know, period of time. Going back
to my childhood 30 or 40 years ago, to me, doesn't
seem like it's -- you know, it's a waste of time, a
waste of valuable time. I think time could be
better spent on investigating things about the
Q. You may not be alone in thinking that. I
understand; that argument has been made before.
A. And I also -- from what I've read, the courts don't
-- well, I know the state courts don't put a whole
lot of weight on stuff that's, as mitigators, on
things that happened 30 or 40 years ago, in my
(P.C.R. at 1336, 1341-44.) Matheney's responses to the magistrate
indicate a clear understanding of the posture of his case and what strategies he and his attorneys sought to employ.
Second, while Matheney may not have cooperated with his lawyers when he disagreed with some of their strategies and may have been an extremely difficult client, they were able to converse with him and provide an adequate post-conviction review of his conviction and sentence. For instance, counsel claims that Matheney would not cooperate in their attempts to ask him questions
about his background for purposes of developing potential
mitigating evidence. Matheney's uncooperativeness did not arise
from an inability to comprehend the situation or a desire to thwart
the attempts of his attorneys at every turn. Rather, based upon
his review of case law regarding this type of mitigation evidence,
Matheney viewed his attorneys' attempts to investigate his
childhood as an inefficient use of his attorneys' already limited
time and resources. (See P.C.R. at 1343-44.)
Also, Matheney's counsel were able to do background research,
although they admittedly had a more difficult time than usual in
doing so. The following colloquy is illustrative of the situation
not being as impossible as counsel suggests:
MR. MERRYMAN: He will not specifically tell us who his friends are, who his associates -- with a few exceptions -- who his associates are, who we can talk to, to develop his background.
THE COURT: Did you speak with those associates?
MR. MERRYMAN: We spoke with some of them.
THE COURT: Did they tell you who his other associates
MR. MERRYMAN: Mr. Matheney didn't --
THE COURT: Yes or no?
MR. MERRYMAN: They told us who they -- the other
associates were that they knew of.
THE COURT: Okay. Did you speak with, then, those
MR. MERRYMAN: This was a very small group of people.
. . . .
MR. SCHUTTE: . . . [Matheney's] illness prevents [him]
either from discussing with us what his childhood
was like or from giving his family the freedom they
need to discuss it with us.
Now, I will suggest to you his family has been -- I will represent to you that I have discussed -- I have interviewed his family on numerous occasions. Prior to or following each of those discussions, Mr. Matheney has notified them that under no circumstances are they to communicate with me anymore; because all I'm trying to do, in his view, is the same old thing.
THE COURT: Have they honored those requests?
MR. SCHUTTE: They are under a great burden. I think,
frankly, they have been less candid with me than
they would like to be . . . .
(P.C.R. at 1326-27; 1331-32.) While the client may be a very
important source of information in counsel's investigation of a
capital case, the client is not the only source, especially during
the lengthy post-conviction process.
Given the evidence from Dr. Berkson that Matheney was previously competent to stand trial, See footnote 1 (P.C.R. at 2150-51), the evidence available to the post-conviction court about Matheney's present mental state, and the deference we give to a trier of fact's determination of a defendant's or a petitioner's
we cannot say that the facts point unswervingly
towards a result opposite the one reached by the post-conviction
problem before granting a motion to disclose the jurors' names.
Cf. Stinson v. State, 262 Ind. 189, 313 N.E.2d 699 (Ind. 1974)
(affirming denial of request to set aside the jury's verdict
supported by juror affidavits claiming impermissible irregularities
in deliberation, because an opposite ruling would lead to juror
harassment by both sides of litigation resulting in an
"unconscionable burden upon citizens who serve on juries").
Matheney's counsel had access to the name of the jury
foreperson, as it was a part of the trial court's record. (P.C.R.
at 1219.) Indeed, counsel conversed with her regarding any
possibility of jury tampering or the receipt of extraneous
information by its members and found no evidence of misconduct.
(P.C.R. at 1220.) Thus, Matheney had access to other reasonable
means of discovering hints of misconduct without the requested
order of disclosure. The trial court's ruling was not clearly
and Article VII, Section 4,
of Indiana's Constitution.
Matheney argues that because all judicial authority rests with the
Supreme Court, the legislature cannot create the position of
"magistrate" and confer judicial authority upon it. Only the
Supreme Court, Matheney argues, has the power to supervise the
lower courts, and thus to create magisterial positions when the
need arises therein.
These claims remind us of a dispute over legislative and judicial authority in the last century. In 1881 the Supreme Court's docket was overburdened with a backlog of cases two-years deep. To provide relief, the General Assembly passed an act which allowed the Court to appoint five commissioners for two year terms "under such rules and regulations as the Court shall adopt, to aid and assist the Court in the performance of its duties." Act of April 14, 1881, § 1, 1881 Ind. Acts 92, 92; 1 Leander J. Monks, Courts and Lawyers of Indiana 298-99 (1916). The Supreme Court assigned cases to the commissioners, but had final approval over each opinion. Monks, supra, at 299. This arrangement was renewed for another two years in 1883, Act of March 3, 1883, §1, 1883 Ind. Acts 77, 77, and by 1885 the congestion of the docket was
alleviated. See Monks, supra, at 299.
In 1889 the docket was again congested, and "for a second time an appeal was made to the Legislature to provide some relief." Id. The legislature passed a bill nearly identical to the 1881 act, but with one important difference: the General Assembly, and not the Court, was to appoint the commissioners. Act of Feb. 22, 1889, §1, 1889 Ind. Acts 41, 41. The Supreme Court, finding that this modification violated article III, section 1, and article VII, section 1, of Indiana's Constitution, quickly declared the act unconstitutional. State, ex rel. Hovey v. Noble, 118 Ind. 350 (1889).
Magistrates such as Page are not appointed by the legislature or the governor, but by the judiciary, and their appointment is not even mandated, see Ind. Code Ann. §§ 33-4-7-1, 33-5-29.5-7.2 (West 1996), unlike the commissioners of the 1881 act. See Act of April 14, 1881, § 1, 1881 Ind. Acts ch. 17, § 1, 92, 92. The provisions in the Indiana Code under which Magistrate Page acted merely allowed him to conduct the preliminary proceedings and hearing as a gatherer of facts, but did not allow him to issue a final appealable order. See Ind. Code Ann. § 33-4-7-4, -7, -8 (West Supp. 1992) (amended 1993). Only Judge Conroy could, and did, (see P.C.R. at 945), issue the final appealable order, and did not do so
in an uninformed or cavalier manner.
We find the magistrate
provisions at issue in this case reminiscent of the acceptable
legislative assistance provided in the acts of 1881 and 1883, and
not the encroachment on the judiciary found in the act of 1889.
Accordingly, we hold the magistrate act constitutional as it
operated in this case.See footnote
therefore biased against him. He bases this allegation on certain
comments made by the magistrate before the hearing. The first
occurred in Magistrate Page's own office when he was meeting with
Stephen Owens, a deputy public defender, and Kathleen Sullivan, a
Lake County prosecutor, about a matter unrelated to Matheney's
case. The magistrate's secretary handed him a motion that had just
arrived via fax from Matheney's counsel requesting a stay of
proceedings because Matheney was allegedly incompetent. Seeing the
title of the motion, Magistrate Page stopped his conversation to
read it, taking interest in the motion because of its nature and
how close its arrival was to the hearing date. He stated that his
interest peaked when he came to the affidavit of Dr. Jeffrey
Smalldon, a psychologist who supported the motion's allegations.
Among other things, Smalldon asserted:
My opinion that Mr. Matheney is not competent to assist his legal counsel is based on my assessment of his current mental status. Although there exists a factual basis for this opinion, I have been advised by Mr. Matheney's legal counsel not to disclose that basis for purposes of the current affidavit.
(P.C.R. at 279 (emphasis in original).)
"I think any judge faced with making a difficult decision would understand my immediate frustration," the magistrate later stated. "I looked up, and speaking to no one in particular, made the comment, 'I don't believe this,' something to that effect. 'They ask me to find him incompetent, but they don't tell me why.'" (P.C.R. at 1186.) Owens testified that Magistrate Page "said something like, 'I can't believe the arrogance of those people.
They want me to find Matheney incompetent but they won't even tell
me why they think that.'" (P.C.R. at 377.)
Magistrate Page's remarks show an understandable irritation
with a motion that would readily frustrate any trier of fact, one
which requests a hearing, but declines to disclose the facts on
which the judge might base a decision to grant or deny that
request. His remarks do not indicate a prejudgment of the motion,
nor do they show bias against Matheney.
Matheney also claims that Magistrate Page engaged in ex parte communication with a potential witness. It appears that Kathleen Sullivan, after receiving a subpoena from Matheney's counsel regarding her presence in the magistrate's chambers when he allegedly made his "injudicious" remarks, reported to the magistrate that he had been accused of making injudicious remarks about death penalty post-conviction relief petitioners, Matheney in particular. If the magistrate replied in any way to Sullivan's statement, (compare P.C.R. at 1191 with P.C.R. at 1195), it was to ask her if the information she was sharing was privileged.
Thereafter, Page immediately contacted both the State's attorney
and Matheney's attorney, pursuant to a prescheduled conference
call, and asked whether it was wise for them to continue to hold
pretrial meetings without the presence of a court reporter, given
what the magistrate had just learned about a potential motion from
Matheney's counsel regarding previous out-of-court statements Page
had allegedly made. It was at this time that Matheney's counsel
informed Page about the contents of affidavits from England and
Matheney claims that this incident violated Indiana's Code of Judicial Conduct, which states, "A judge shall not initiate, permit, or consider ex parte communications made to the judge outside the presence of the parties, concerning a pending or impending proceeding . . . ." Ind.Judicial Conduct Canon 3(B)(8). We disagree. Magistrate Page did not seek out contact with a witness against Matheney. The "witness" in this instance merely shared with Page what she had heard about the nature of statements the magistrate, himself, had made. Matheney could not reasonably perceive Page as biased merely because the magistrate learned of a motion which Matheney's counsel was about file against him before it was actually filed. Page immediately made both parties aware of what Sullivan had said to him. No appearance of impropriety or partiality arises from these facts. See footnote 10
Matheney also alleges that comments made by Magistrate Page at the beginning of the post-conviction hearing, and previously to other judges, show his bias against death penalty litigants in general. The specific statement by Page on which Matheney takes issue is as follows:
[A]llegations of judicial bias and prejudice are, next to accusing a judge of being corrupt, are the most serious accusations you can make. They seem to be made casually in these petitions for post conviction relief regarding death penalty cases; and although I was assured by counsel last week, when the subject came up, that, oh, no, these are not routinely made and that they have only made it in this particular instance; and to their knowledge, they're not routinely made in death penalty cases. I find it interesting that in some discussions I had with judges at a conference last Friday, when they asked me how the hearing was going, and I mentioned how the hearing began with it being objected to, that I ought to disqualify myself because I was biased and prejudiced, to my being accused of being biased and prejudiced everytime [sic] I ruled on an objection against the petitioner . . . . The response from one judge who had handled death penalty PCRs before was, is that he had experienced the same thing. I have heard that from another judge, as well.
(P.C.R. at 1183-84.) We agree with Matheney's characterization of
these statements as "mild comments," (Petitioner's Br. at 49). The
articulation of observations by one judge to fellow judges
concerning what the former perceives to be a trend on the part of
defendants or post-conviction petitioners does not indicate bias.
Matheney also argues that Magistrate Page denied him a fair hearing by misleading his counsel regarding briefing requirements and then ruling many of his ineffective assistance of counsel claims waived because of either Matheney's failure to provide cogent argument or his failure to plead specific facts in support
of his allegations of error. We have carefully reviewed the facts
surrounding this final allegation of bias, finding that either a
misunderstanding on the part of Matheney's lawyers or a
miscommunication on the magistrate's part, rather than a malicious
plot by the magistrate, led to Matheney's inadequate post-
conviction brief. We find no bias or prejudice against Matheney on
the part of Magistrate Page.
Matheney's claims concerning counsel pertain to both his trial See footnote 11 and appellate representation, and they are legion. See footnote 12 Judge Conroy found many of these issues waived for failure to provide cogent argument or failure to plead sufficient facts in support of the allegations. At least some of these allegations are preserved. We have decided, in the interests of judicial economy and because there is a sufficiently developed record, to evaluate the ineffectiveness claim as a whole. Finding all of Matheney's ineffective assistance of counsel allegations unpersuasive, we hold that Matheney was not denied the effective assistance of counsel. Because we also find many of these claims meritless, we will only address some of his stronger arguments for illustration.
guilt phase unsupported by the Matheney's mental health evidence,
and did not adequately argue during the penalty phase the existence
of a mitigating circumstance available from Matheney's mental
health evidence. Matheney's argument is summarized as follows.
Dr. Morrison, a psychologist who had examined Matheney, was called
to testify in support of Matheney's insanity defense. She
testified that Matheney suffered from a paranoid personality
disorder. To prove insanity, a defendant must show, among other
things, that he could not appreciate the wrongfulness of his
actions when he committed the crime. Ind. Code § 35-41-3-6 (West
1986). Counsel never attempted to prove that Matheney did not
appreciate the wrongfulness of his actions. In fact, Dr. Morrison
testified as part of Matheney's post-conviction proceeding that she
would have opined at trial that Matheney could appreciate the
wrongfulness of his actions on the day of the crime. However, she
also stated that in her opinion Matheney's illness prevented him
from conforming his conduct to the requirements of the law. Such
an inability is one of the listed mitigating factors in the death
penalty statute. Ind. Code § 35-50-2-9(c)(6) (West Supp. 1996).
Therefore, Matheney argues, counsel were ineffective for pursuing
a defense at the guilt phase on which they had no hope of success,
while failing to adequately present readily available mitigating
evidence during the penalty phase.
While present counsel bemoan trial counsels' decision to pursue the insanity defense, they provide no evidence of what
alternative strategy trial counsel should have employed in its
stead. Indeed, there is much to indicate that employing this
defense was the best alternative available. There was no available
defense that would have cast doubt on the fact that he
intentionally killed Lisa Bianco, and by employing the insanity
defense, Matheney's attorneys were able to introduce evidence that
they otherwise would not have been able to submit. (See P.C.R. at
1699 (indicating trial counsels' use of insanity defense to get
Matheney's side of the story before the jury through the expert
called to testify, while keeping Metheney himself off the witness
stand)). We conclude counsel did not perform at a level below
Matheney's penalty phase claim of ineffective assistance fails on the prejudice prong. In our opinion concerning Matheney's direct appeal, we addressed the "inability to conform" mitigator, noting evidence supporting the trial court's finding that this mitigator did not exist. See footnote 13 Moreover, while trial counsel did not
elicit the statement "Matheney's illness prevented him from
conforming his behavior to the requirements of the law" from Dr.
Morrison, they did elicit testimony from her at the guilt phase
which could support the presence of that mitigator. (See T.R. at
2724-32.) The trial court informed the jury about the "inability
to conform" mitigator, and told the jury it could consider evidence
from the guilt phase during the penalty phase. Finally, trial
counsel argued this mitigator while arguing to the jury, and to the
judge, about sentencing. While eliciting Dr. Morrison's explicit
opinion as to the presence of this mitigator during the penalty
phase may have helped Matheney, given the testimony elicited from
Dr. Morrison, trial counsel's closing argument, and the evidence
cutting against the presence of that mitigator already mentioned in
our previous opinion, we cannot say that the failure to elicit such
testimony from Dr. Morrison creates "a reasonable probability that
the result of the proceeding would have been different," Cook, 675
N.E.2d at 692.
A defendant is not competent to stand trial when he is unable to understand the proceedings and assist in the preparation of his defense. Ind. Code Ann. § 35-36-3-1(a) (West 1986). When making an ineffectiveness claim based upon an attorney's failure to request a competency hearing, an appellate or post-conviction petitioner must cross the performance and prejudice hurdles of the Strickland standard. Dodson v. State, 502 N.E.2d 1333 (Ind. 1987). Matheney's claim does not overcome the first hurdle.
On March 14, 1989, Matheney's trial counsel filed a notice of
insanity defense and requested examination by a psychiatrist for
determining Matheney's competency to stand trial. On March 27 the
trial court appointed Drs. Berkson and Batacan "for the purposes of
determining [Matheney's] competency to stand trial and sanity."
(T.R. at 7.) Dr. Batacan examined Matheney on April 12 and June
21, 1989, and Dr. Berkson examined Matheney on April 14, 1989.
Neither found the presence of mental disease or defect. Dr.
Berkson stated that during his examination Matheney had no
difficulty responding promptly to his questions, organizing his
thoughts, or putting his thoughts together in a logical, sequential
order. Dr. Berkson also testified he had examined Matheney two
years earlier in relation to a previous criminal matter and had
found Matheney competent at that time.
While trial counsel believed Matheney to be mentally ill, they
did not believe it prevented him from understanding the proceedings
or from assisting in his own defense. Charles Lahey, one of
Matheney's trial counsel, testified, "Despite his obsessive
conduct, I didn't find [Matheney] that incapable of planning his
own defense. In fact, he was actively planning it although it
wasn't right in all regards." (P.C.R. at 1500.) When asked, "In
your opinion did Mr. Matheney have a general idea of how the legal
system operated and what he was being charged with and the gravity
of the situation," Lahey replied, "Yes, I did think that he did."
(P.C.R. at 1516.) Asked if he thought Matheney was competent to
assist him with the defense, Lahey responded that while Matheney
was of little help to them, he did not believe Matheney's lack of
help was due to incompetence, as that term is legally understood.
(See id. at 1542-43.) Philip Skodinski, another of Matheney's
trial counsel, when asked if Matheney was competent to assist,
replied, "I think he was. . . . He certainly understood what he
was charged with or what evidence [sic] to find he was not guilty.
In that regard I guess he was competent to assist in his own
defense." (P.C.R. at 1734.)
Given the psychiatrists' determinations before trial, trial
counsels' own opinions of Matheney's competency, and Dr. Berkson's
earlier determination of Matheney's competency, trial counsel were
not ineffective for failing to follow up their request for a
determination of competency with a formal motion for a hearing on
(a) Burden of Proving Insanity. Matheney claims that various preliminary and guilt phase jury instructions, (see T.R. 577, 611, 620, 632), were erroneous because they placed on him the burden of proving insanity by a preponderance of the evidence. This burden is imposed by Ind. Code Ann. § 35-41-4-1(b) (West 1986). This Court has found this burden constitutional, Price v. State, 412 N.E.2d 783 (Ind. 1980), and so has the U.S. Supreme Court, Leland v. Oregon, 343 U.S. 790 (1952). Thus, Matheney's counsel did not perform below "prevailing professional norms," Strickland v. Washington, 466 U.S. 668, 690 (1984).
(b) Defendant as "Competent" Witness. Matheney claims trial
counsel should have objected to what he says was an instruction
commenting on his competence:
The defendant is a competent witness to testify in his own behalf. He may testify or not, as he may choose. In this case, the defendant has not testified. This fact is not to be considered by the jury as any evidence of guilt. The jury shall not comment upon, refer to, or in any manner consider the fact that the defendant did not testify in arriving at your verdict in this case.
(T.R. at 630.) According to Matheney, "[i]n common usage, the term
'competent' implies an individual who is sane and free of mental
illness." (Petitioner's Br. at 98.) Because the allegation of
mental illness was central to his defense and sentence, Matheney
argues that either his trial counsel was ineffective for failing to
object to this instruction, or his appellate counsel was
ineffective for failing to raise the issue on appeal.
The post-conviction court correctly interpreted the word in
this instance as meaning "legally qualified." (P.C.R. at 914.)
The definitions listed for "competent" in Webster's New
International Dictionary imply no link to "sanity." Rather,
meanings such as "possessed of sufficient aptitude," "possessed of
skill needed to perform an indicated action," and "legally
qualified in mental and physical makeup <a [competent] witness>"
are listed. Webster's Third New International Dictionary 463-64
(1993). Matheney offers no basis for his assumption that a jury
would understand "competent" to mean anything other than legally
able. Moreover, Matheney's defense went to his sanity at the time
he committed the act. Even if Matheney was correct, the most the
instruction would have done was cause the jury to think Matheney
"sane" at the time of trial. Thus, he has not shown any evidence
of possible prejudice, or of deficient performance on the part of
his counsel for not advancing this argument at trial or on appeal.
(c) Consideration of Sympathy. Matheney claims that a guilt phase jury instruction which prohibited the jury from considering sympathy for Matheney when reaching a verdict, combined with the jury's instruction to consider all guilt phase evidence at the sentencing phase, amounted to a mandate upon the jury not to consider sympathy at the sentencing phase, absent a limiting instruction to the contrary. Matheney's counsel were not deficient for failing to make this argument, however, in light of our holding that sympathy should not influence a jury's recommendation. Woods
v. State, 547 N.E.2d 772 (Ind. 1989), on reh., 557 N.E.2d 1325
(1990), cert. denied, 501 U.S. 1259 (1991).
(d) "Lying in Wait" Instruction. The trial court gave the
following instruction to the jury:
"Lying in wait" requires watching, waiting, and concealment from the person killed with the intent to kill that person.
"Lying in wait" means taking the victim by surprise or ambush. The lying in wait need not last for any particular period of time provided that the length of time is sufficient to allow the defendant to form the intent to kill.
Concealment from the victim must be the direct means to attack or gain control of the victim. It is not necessary, however, that the defendant be concealed when the fatal acts are committed as long as the lethal attack begins and flows continuously from the moment the concealment and waiting ends.
(T.R. at 669; P.C.R. at 915.) This instruction is a correct statement of Indiana law. See Davis v. State, 477 N.E.2d 889 (Ind. 1985), cert. denied, 474 U.S. 1014 (1991). While "lying in wait" is not defined in the criminal code, this Court's definition of it in Davis and subsequent cases gives the phrase sufficient specificity to survive a vagueness challenge. As for this aggravator's ability to narrow the class of death-eligible murderers, Davis indicates that not all those convicted of murder would necessarily fall within this aggravator's definition. See id. at 897 (finding insufficient evidence to support the trial court's finding of murder committed while lying in wait). No reasonable lawyer would think it necessary to challenge the lying in wait aggravator on its face or as applied in this case, given our cases dealing with this issue.
(e) Instruction Containing All Statutory Mitigators. Matheney claims that the trial court erred by giving penalty phase instruction six, which placed all eight statutory mitigators before the jury and did not instruct the jury that it must consider mitigation. Several of the mitigators were not relevant to the evidence presented in his case. Therefore, Matheney argues, he was prejudiced by this instruction because it trivialized the evidence which he did present and possibly encouraged the jury to view the absence of one of the listed mitigators as an aggravating circumstance in and of itself. We have rejected this argument, Miller v. State, 623 N.E.2d 403 (Ind. 1993), and thus do not view Matheney's counsel were ineffective for not making it.
Matheney also asserts that the trial court erred in instructing the jury, "The mitigating circumstances that may be consider under this section are as follows," (T.R. at 670), claiming that the jury must consider mitigation. The "may" in the court's instruction does not go to the consideration of mitigation generally, but to the notion that the jury was permitted to consider any one or more of the following list, including the "catch-all" at the end. Given final instruction ten, which states, "You are to consider both aggravating and mitigating circumstances," (T.R. at 674), we have no reason to believe that the jury misunderstood the correct interpretation of "may" in instruction six. Because instruction six was a correct statement
of the law, Matheney's counsel were not ineffective for failing to
raise the arguments proffered here.
(f) Consideration of Guilt Phase Evidence at Penalty Phase.
Matheney argues that either his trial or appellate counsel were
ineffective for failing to challenge the trial court's instruction
of the jury to consider all guilt phase evidence at the penalty
phase. (See, e.g., id.) Because we have previously approved the
incorporation of all the trial evidence for penalty phase
consideration, see, e.g., Smith v. State, 475 N.E.2d 1139 (Ind.
1985), Matheney's counsel were not ineffective for failing to
raise the argument advanced here.
(g) Unanimity and Burden of Proof for Mitigators. Matheney
claims the penalty phase final instructions were inadequate in
that: (1) they failed to state that the jury did not need to find
a mitigating factor unanimously in order to consider it; and (2)
they failed to state that mitigating circumstances need only be
proven by a preponderance.
As to Matheney's first contention, this Court has already
resolved it against him. Bivins v. State, 642 N.E.2d 928 (Ind.
1994). Thus, Matheney's counsel were not ineffective for failing
to make the argument proffered here.
As to Matheney's second contention, it is true that
"preponderance of the evidence" is the appropriate standard for
determining mitigating circumstances. Id. at 950 (citing Rouster
v. State, 600 N.E.2d 1342, 1348 (Ind. 1992)). An instruction to
that effect would have been appropriate. Nevertheless, the absence
of an instruction so stating, without more, does not necessarily
suggest to jurors that mitigating circumstances need be proven
beyond a reasonable doubt, as Matheney contends. Matheney's
argument was questioned in Miller v. State, 623 N.E.2d 403, 409-10
(Ind. 1993), and we formally reject it today. As we noted in
Miller, "All instructions to a jury on reasonable doubt place that
burden upon the State. There is no inference in any portion of a
trial that a defendant's evidence comes under that scrutiny." Id.
at 409. Without something specific in the given jury instructions
which would clearly lead a jury to such a misunderstanding, a bald
assertion as to what a jury is likely to presume will not suffice.
(h) Penalty Phase Final Instruction Twelve. Matheney alleges that penalty phase final instruction twelve See footnote 18 gave the jury incomplete and misleading information about the penalties available
for Matheney if he was not sentenced to death. Specifically,
Matheney argues that the court: (1) did not inform the jury of the
available penalties for burglary; (2) did not define or explain
"presumptive" or "credit time [sic] for good behavior"; (3) did not
discuss or explain the possibility of consecutive sentences; and
(4) did not discuss the grounds for imposing an aggravated term.
Basing his claim on Simmons v. South Carolina, 114 S.Ct. 2187
(1994), where Matheney claims to find a due process requirement
that juries "be correctly instructed about the sentencing
alternatives available in lieu of a death sentence," (Petitioner's
Br. at 104), Matheney argues that this instruction and the stated
omissions misled the jury by leaving them with "the impression
that, should the jury decline to impose death, Matheney could be
released after serving fifteen years." (Petitioner's Br. at
The instruction was a correct statement of the law at the time of Matheney's trial. Counsel's failure to request instruction on the penalty for burglary, or the attendant instructions regarding consecutive sentences and aggravated terms, did not make them
ineffective. An attorney may reasonably desire not to remind a
jury deliberating a death sentence that the defendant was found
guilty of another serious felony in addition to murder. Also,
Simmons was handed down more than two years after we decided
Matheney's case on direct appeal, and four years after his trial.
Because Simmons was not available to Matheney's trial or appellate
counsel, it cannot be said that either were ineffective for failing
to make a claim based upon its holding, even if what Matheney claims to be Simmons holding is correct. See footnote 20
Also, we cannot say that the terms "presumptive penalty" and
"credit for good behavior" are such technical terms of art that a
layman could not understand them. See McNary v. State, 428 N.E.2d
1248, 1252 (Ind. 1981). Therefore, Matheney's counsel were not
deficient for failing to request clarification, nor has Matheney
shown any prejudice so as to undermine confidence in the outcome of
failing to preserve numerous constitutional objections to the
Indiana death penalty statute. Matheney concedes that we have
rejected many of his constitutional challenges, (Petitioner's Br.
at 106); counsel appear to offer them in contemplation of federal
appeal, (see id.), though many of these have also been rejected in
courts of the United States. For those constitutional challenges
already decided adversely to Matheney's claims, this Court "does
not choose to reassess its position at this time." Daniels v.
State, 528 N.E.2d 775, 783 (Ind. 1988). Even if we did so choose,
however, it would be highly unlikely that we would find prior
counsel's performance substandard for failing to make these
challenges, considering we have already spoken to the contrary
concerning them. Accordingly, we will address here the alleged
failings of prior counsel as to constitutional challenges not
already addressed adversely to Matheney by this Court.
(a) Finding of Probable Cause for Capital Trial Eligibility. Matheney says counsel should have argued that Indiana Code § 35-50- 2-9(a) violates the United States See footnote 22 and Indiana See footnote 23 Constitutions facially and as applied because it allows a defendant to be subjected to a "death-qualified" jury without first having a
neutral fact-finder determine, after an adversarial proceeding,
probable cause for death eligibility. According to present
counsel, studies show death-qualified juries to be more likely to
vote for conviction than non-death qualified juries. Because
prosecutors have discretion to seek the death penalty, Matheney
argues that they can impermissibly use their discretion to impanel
death-qualified juries just to increase their chances of securing
a conviction in close cases or of having a jury which is more
As Matheney concedes, however, the U.S. Supreme Court has held
the use of "death-qualified" juries to be constitutional. Lockhart
v. McCree, 476 U.S. 162 (1986). In so doing, that court referred
to death-qualified juries as "impartial." Id. at 180. In light of
this suggestion, Matheney's counsel was not ineffective for failing
to claim otherwise.
(b) The "Felony/Murder" Aggravator. Matheney claims that the "felony/murder aggravator" in the death penalty statute violates
the U.S. and Indiana Constitutions facially and as applied because
it is vague, overbroad, and fails to narrow meaningfully the class
of death-eligible murderers.
Indiana Code § 35-50-2-9(b)(1)
(b) The aggravating circumstances are as follows:
(1) The defendant committed the murder by intentionally killing the victim while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery.
Ind. Code Ann. § 35-50-2-9(b)(1) (West Supp. 1989) (amended 1993).
Matheney claims that the phrase "while committing or attempting to commit" is vague, violating United States v. Harriss, 347 U.S. 612, 617 (1954) (stating that criminal codes must "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden"). (Petitioner's Br. at 109). Other than this bald assertion, however, Matheney provides no evidence or argument as to how a person of ordinary intelligence would fail understand what it means. Without more, he offers little grounds for the claim that his attorneys were ineffective for failing to make this meritless claim.
Matheney also claims that Ind. Code § 35-50-2-9(b)(1) is "overbroad," because "the majority of homicides are committed in conjunction with another crime. See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1972)." (Petitioner's Br. at 109.) Matheney's overbreadth argument, however, is confused and misplaced. Overbreadth is a constitutional doctrine primarily applied in the First Amendment context. It is designed to protect innocent persons from having the legitimate exercise of their constitutionally protected freedoms fall within the ambit of a statute written more broadly than needed to proscribe illegitimate and unprotected conduct. See Broadrick, 413 U.S. at 612; Laurence H. Tribe, American Constitutional Law § 12-27 (2nd ed. 1988). Matheney makes no argument as to what legitimate conduct might possibly fall within the felony murder aggravator, nor could he.
Matheney also claims that Indiana Code § 35-50-2-9(b)(1) violates Godfrey v. Georgia, 446 U.S. 420 (1980), by failing to narrow meaningfully the class of murderers eligible for the death penalty. Besides this assertion, the only argument Matheney makes is that "the majority of homicides are committed in conjunction with another crime." (Petitioner's Br. at 109.) Matheney's argument fails for at least two reasons. First, he provides no authority for his proposition that a majority of homicides are committed in conjunction with other crimes. We would be very reluctant to find a statute, which enters our courtroom "clothed with a presumption of constitutionality," Sidle v. Majors, 264 Ind.
206, 209, 341 N.E.2d 763, 766 (Ind. 1976), unconstitutional on a
single, unsupported assertion of fact. Second, even if it were
true that a majority of homicides are committed in conjunction with
another crime, this has no specific relevance to the aggravator at
issue here, which does not make "the commission of any other crime"
an aggravating circumstance, but only the commission of certain
enumerated felonies. We are unable to find Matheney's original
lawyers ineffective for failing to make this claim.
(c) The "Lying in Wait" Aggravator. Matheney argues that the
lying in wait aggravator, Ind. Code Ann. § 35-50-2-9(b)(3) (West
Supp. 1996), is facially vague, and vague and overbroad as applied.
We begin by rejecting his overbreadth challenge here for the same
reason we rejected it above pertaining to the felony murder
aggravator. See supra part IV.C.3(b). Next we note that we have
already rejected Matheney's ineffective assistance claim regarding
a challenge to the jury instructions given regarding this
aggravator. See supra part IV.C.2(d). For the reasons set forth
there, we reject his repeated "as applied" challenges here.
Finally, Matheney challenges our interpretation of the lying in wait aggravator as applied in our direct appeal opinion of his case, arguing that under the language we used in summing up the facts in support of our affirmance, "the lying in wait aggravator could apply to virtually any intentional killing." (Petitioner's Br. at 111.) Actually, appellate counsel argued the meaning of
this statute with sufficient persuasion that it drew a dissent on
this very point. Matheney, 583 N.E.2d at 1209 (DeBruler, J.,
concurring and dissenting). Counsel did not carry the day, but was
(d) Aggravation Contentions. Matheney claims that Indiana Code § 35-50-2-9(b), which sets out the aggravating circumstances that justify the imposition of the death penalty in Indiana, violates the Eighth and Fourteenth Amendments of the U.S. Constitution, and Article One, Section Sixteen, of the Indiana Constitution. He says the statute fails to state specifically that only charged aggravators may be considered by the sentencer, thus allowing, by omission, the sentencer to consider uncharged and invalid aggravating circumstances.
In support of his federal constitutional claim, Matheney cites
Espinosa v. Florida, 505 U.S. 1079, 1081 (1992) (per curiam).
Espinosa does state that "the weighing of an invalid aggravating
circumstance violates the Eighth Amendment," id. (citations
omitted), and does find the aggravator at issue in the case
invalid. However, as we have observed, Espinosa and similar
focus upon vagueness, not upon whether the aggravators used were among those prescribed by the applicable death
penalty statute; they therefore do not appear to suggest
that non-statutory aggravating circumstances are
necessarily invalid. To the contrary, once statutory
aggravating circumstances have circumscribed the class of
persons eligible for the death penalty, the federal
Constitution does not require the sentencer to ignore
other possible aggravating circumstances to the extent
authorized in a state's capital sentencing statute. Zant
v. Stephens (1983), 462 U.S. 862, 878-79 . . . .
Bivins v. State, 642 N.E.2d 928, 954-55 (Ind. 1994). Based on this
assessment, we held in Bivins that a trial court's consideration of
non-statutory aggravating circumstances did not violate the Eighth
Amendment. Id. at 955.
In support of his state constitutional claim, Matheney cites
Bivins, 642 N.E.2d 928, where we held that consideration of
nonstatutory aggravating circumstances violates Article One,
Section Sixteen, of the Indiana Constitution. Id. at 955-57. In
Bivins, the trial court considered victim impact evidence and did
not distinguish its findings as to the death penalty from those
relating to the sentences imposed for non-capital felony
convictions. See id. at 953-55.
In Matheney's trial, the jury instructions clearly informed the jury that it could only consider the charged (and valid)
The trial court specifically mentioned only the two
charged aggravators in its sentencing statement. (Id. at 701-02.)
Thus, the fact that Indiana Code § 35-50-2-9(b) does not
specifically state that "only listed aggravators may be considered"
is irrelevant, because Matheney's sentencer clearly considered only
valid aggravators. Accordingly, Matheney's trial counsel were not
ineffective for failing to make the assertion he advances here.
(e) Mitigation Contentions. Matheney makes various arguments
for why Indiana Code § 35-50-2-9(c), which specifies the mitigating
circumstances a sentencer is to consider at the penalty phase of a
capital trial, violates the Eighth and Fourteenth Amendments to the
U.S. Constitution, and Article One, Sections Twelve, Thirteen, and
Sixteen of Indiana's constitution.
The opening sentence of the section states, "The mitigating circumstances that may be considered under this section are as follows: . . . ." Ind. Code Ann. § 35-50-2-9(c) (West Supp. 1996)
(emphasis added). Citing federal precedent holding that a
sentencer may not refuse to consider or be precluded from
considering mitigating evidence, Matheney claims that the term
"may" makes the consideration of mitigating evidence optional, thus
allowing the sentencer to refuse to consider mitigating evidence.
We disagree. The term "may" in this sentence simply means that any
one of the listed mitigators following that sentence are
permissible for consideration, including the "catch-all" provision
which states, "Any other circumstances appropriate for
consideration." Id.; see supra part IV.C.2(e). This
interpretation is the more reasonable one, particularly when viewed
in light of § 35-50-2-9(e)(2),
which requires a jury, before it
can recommend death, to consider any existing mitigating evidence
in order to find it outweighed by the charged aggravator(s).
Because the code section at issue, when read in the light of the
other relevant sections, does not make the consideration of
mitigation optional, Matheney's trial counsel was not ineffective
for failing to make the argument advanced here.
Matheney says counsel should have argued that Ind. Code § 35- 50-2-9(c) sets up barriers to the consideration of mitigating evidence in a capital case, first, by failing to specify that the
only prerequisite to considering mitigating evidence is its
relevance to the defendant's character, record, or the
circumstances of the crime, and, second, by failing to provide any
standard of proof. As to his first claim, Matheney fails to
provide any insight into why the absence of such a specification
would prevent a sentencer from considering otherwise relevant
mitigating evidence. Thus, this claim is waived for failing to
present any cogent argument in support of it. Armstead, 538 N.E.2d
at 945. As to his second claim, we reject it for the reasons
stated previously in part IV.C.2(g).
Matheney also claims that Indiana Code § 35-50-2-9(c) is
unconstitutional because it fails to provide an adequate definition
of "mitigation." The entire support Matheney provides for this
contention, however, is as follows:
The Supreme Court of Indiana has noted that "mitigating circumstances . . . include virtually anything favorable to the accused." Smith v. State, 547 N.E.2d 817, 822 (Ind. 1989). This definition of mitigation is not within the common understanding of the average juror. Canfield v. Sandock, 563 N.E.2d 1279, 1283 (Ind. 1990) (technical and legal phrases used in instructions should be defined).
(Petitioner's Br. at 115-16.) We think the breadth of this
definition and the ordinary understanding of the word "mitigating"
is such that counsel who elected not to make the present contention
were acting within the scope of the Sixth Amendment promise of
Matheney also argues that the mitigating circumstance "no
significant history of prior criminal conduct," Ind. Code Ann. §
35-50-2-9(c)(1) (West Supp. 1996), is unconstitutional because the
adjective "significant" creates "an unacceptable risk that the
sentencer will view the defendant's record in terms of aggravation
only, thereby converting the absence of a mitigator into an
aggravator." (Petitioner's Br. at 116.) We see no reason to
assume that juries would make such a leap. Matheney's earlier
lawyers did not fail their client by taking a pass on this
Matheney also argues that the mitigator "The defendant was less than eighteen (18) years of age at the time the murder was committed," § 35-50-2-9(c)(7), is unconstitutional because it considers only chronological age, rather than also considering the defendant's emotional and intellectual age. Matheney's only support for this proposition, however, is a single sentence: "These are more accurate indicators of culpability than chronological age. See Lockett, supra." (Petitioner's Br. at 117.) This argument is deficient for several reasons. First, it cites Lockett v. Ohio, 438 U.S. 586 (1978), for its proposition that emotional and intellectual age are more accurate indicators of culpability than chronological age. Not only is "See Lockett, supra," without more, an entirely inadequate citation of authority, but we can find nothing in Lockett which remotely suggests that "intellectual" or "emotional" age (whatever those may mean) are better indicators of
culpability than chronological age.
Second, even if
"intellectual" or "emotional" age is something that should be
considered in a particular defendant's case, such evidence could be
introduced and argued under the "catch-all" mitigator. We cannot
see how Matheney's counsel were ineffective for failing to make the
claim advanced here.
questions in regards to this issue.
After receiving Judge
Letsinger's answers, we directed Matheney to submit a supplemental
brief addressing any substantive and/or procedural claims he might
have regarding the questionnaire.
The details surrounding this issue show that Matheney did fill out Judge Letsinger's questionnaire, the questions of which were adapted from the Minnesota Multiphasic Personality Inventory, or "MMPI." See footnote 33 Whether a copy of this completed questionnaire was provided to Matheney's counsel, however, is open to doubt. Judge
Letsinger states that he has used this questionnaire with every
defendant whom he has sentenced since at least 1979, and claims
that it has always been attached to the presentence investigation
report submitted to the defendant prior to sentencing.
(Petitioner's Supp. Br. at A-32, A-54.) Matheney's trial counsel
states that although he was generally familiar with Judge
Letsinger's questionnaire, he does not specifically remember if it
was attached to Matheney's presentence report. He claims, however,
that if it had been attached, it would still be there, because he
would not have removed it. (Id. at A-59.)
Matheney also presents an affidavit from another attorney who
has practiced in Judge Letsinger's court who received a presentence
investigation report on his client that did not have a
psychological evaluation questionnaire attached to it. (Id. at A-
60.) Finally, Matheney presents the deposition of Lake County's
director of probation, taken in preparation for the post-conviction
petition of Reynaldo Rondon, in which the director testifies that
Rondon's completed questionnaire was given only to Judge Letsinger,
and that copies were not routinely given to defense counsel.
(Petitioner's Supp. Br. at A-25.) While Judge Letsinger
acknowledges that he reviewed Matheney's completed questionnaire,
he believes that he did not rely on it when determining the
appropriate sentence for Matheney. (Id. at A-53.)
Matheney makes five arguments about this questionnaire.
First, he claims that failure to submit the completed questionnaire
to Matheney's trial counsel violated Matheney's due process rights
as articulated in Gardner v. Florida, 430 U.S. 349 (1977)
(plurality) (remanding for a new sentencing hearing a death
sentence that was based, in part, on information not disclosed by
court to defense counsel prior to the sentencing hearing). Second,
he claims this failure also violated his right to be free from
cruel and unusual punishment under Article One, Section 16, of
Indiana's constitution. Third, he claims that this failure
violated Indiana Code § 35-38-1-12, which requires the sentencing
court to advise the defendant or counsel of the factual contents
and the conclusions of the presentence investigation. Fourth, he
claims that the trial court's review of "secret information" in its
sentencing prevented meaningful appellate review of Matheney's
death sentence. Finally, Matheney claims that any decision by this
Court other than vacating Matheney's death sentence would violate
his rights under the U.S. and Indiana Constitutions because this
Court's investigation of this issue "has not developed the facts
sufficiently for Matheney to substantiate his claim that his death
sentence is based, at least in part, on information Matheney had no
opportunity to explain." (Petitioner's Supp. Br. at 16-17.)
All of Matheney's claims share one common premise. They do not allege a violation of Matheney's rights by the administration of the questionnaire, per se. Rather, Matheney's various claims
all rise or fall based upon the allegation that Matheney did not
have the opportunity to contest information which may have
influenced the judge in his sentencing decision, because Matheney
was not given this information by the judge.
The Indiana Code does provide that defendant's receive the
products of the presentence investigation. We find this particular
product, the Letsinger questionnaire, an unimpressive one. As
interpreted by persons trained in its use, a completed MMPI might
have some value in making certain sentencing decisions.
Rather than remand this case to the post-conviction court so
it can delve into a factual and legal morass involving a three-page
questionnaire the trial judge says played no role in sentencing, we
will independently review the proper aggravating and mitigating
circumstances absent the psychological questionnaire at issue and
determine whether the death sentence in this case is appropriate,
Lambert v. State, 675 N.E.2d 1060, 1065 (Ind. 1996), thereby making
the claims surrounding this psychological questionnaire moot.
The charged aggravating circumstances were killing by "lying in wait," and killing while committing or attempting to commit burglary. As fully discussed in our previous opinion, there was abundant evidence proving this aggravator beyond a reasonable doubt. Matheney v. State, 583 N.E.2d 1202, 1208-09 (Ind. 1992). There is also ample evidence showing that Matheney broke into
Bianco's home with the intent to commit murder therein. The
"breaking" aspect is irrefutable: the evidence showed that he broke
through the backdoor to gain entry into the house. The evidence
indicating that he intended to commit murder after breaking in is
also strong: he had repeatedly expressed an intention to kill
Bianco and had tried to solicit others to do so; he went straight
to Bianco's Mishawaka home, instead of to Indianapolis, on his
eight-hour pass from the Pendleton correctional facility, stopping
only at his mother's home to drop her off and at Rob Snider's home
to change his clothes and get one of Snider's shotguns; and he
pursued Bianco with the gun in hand as she ran from her home
dressed only in her underpants, striking her repeatedly upon
catching her until the gun shattered from the force of the blows.
Few things short of fear of imminent death would drive the average
female out of her urban home across the street and over to the
house of a neighbor in the middle of the day dressed only in her
The evidence also suggests some arguably mitigating circumstances. First, the defendant was extremely angry with the victim, which could be evidence that he was under the influence of an extreme mental or emotional disturbance when he killed Bianco. Ind. Code Ann. § 35-50-2-9(c)(2) (West Supp. 1996). However, as Judge Letsinger noted, there was also evidence tending to show that his anger did not rise to the level that it dominated his actions.
The video tape after his arrest that day shows a calm
demeanor with Matheney discussing the case disposition
just after the fact. This attitude is entirely
consistent with the witness description of his calm
demeanor before the fact. He had given no one any
indication of emotions out of control. These witnesses
had known and observed his behavior from birth.
(Petitioner's Br. at A-1 - A-2.) Thus, we can only afford this
mitigator slight weight.
Second, while evidence was offered supporting the contention that Matheney suffered from a mental disease which caused him to view life through a distorted and deluded version of reality, (see, e.g., T.R. at 2724-32), there was little evidence tending to show that this alleged mental disease left Matheney literally no other choice but that of killing Lisa Bianco. While it may have caused him to believe that Bianco and others were conspiring to keep him incarcerated and deprive him of his rights, we are still left with the question of why that belief would necessarily drive Matheney to kill Bianco instead of simply sticking to legal, lawful avenues of exposing this perceived unlawful conspiracy. While hate, jealousy and vengeance may be motivations which are undesirable and often lead people to do things they otherwise would not do, we do not consider people who act upon these motivations to be "mentally ill" or unable to "conform their conduct to the requirements of the law," per se. Moreover, other evidence before the trial court supported its finding that this mitigating circumstance was not present. See supra note 13. Thus there is little if any weight for this mitigator available to effect the significant weight of
the two proven aggravators.
Finally, we note that the jury fully considered the
aggravators and mitigators and recommended the death sentence upon
concluding that latter outweighed by the former, Matheney, 583
N.E.2d 1202, 1209 (Ind. 1992), and did so without the aid of the
psychological questionnaire at issue. Our reweighing of the
statutory aggravators and mitigators, also without consideration of
the contents of Judge Letsinger's psychological questionnaire,
amply demonstrates that the aggravating circumstances outweighed
the mitigating circumstances and that death is appropriate for this
offense and this offender.
Dickson, Sullivan, and Selby, JJ., concur.
Boehm, J., concurs with separate opinion.
Susan K. Carpenter
Jeffrey A. Modisett
Arthur Thaddeus Perry
Public Defender of Indiana
J. Jeffreys Merryman, Jr.
Steven H. Schutte
Deputy Public Defenders
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Susan K. Carpenter
Jeffrey A. Modisett
Arthur Thaddeus Perry
For the reasons stated in my dissent in Lambert v. State, 675 N.E.2d 1060 (Ind. 1996),
I believe that a procedurally defective sentencing order in a death penalty case should require
remand for resentencing.
Based on this record I cannot conclude that the sentencing
decisions of the court were unaffected by the questionnaire described in the court's majority
opinion. It appears more probable than not that the questionnaire was never communicated
to the parties. In a matter as sensitive as a death penalty proceeding, the greatest care must
be taken to afford all parties the opportunity to present their issues in a full and fair
proceeding. The slightest ex parte communication runs the risk of tainting the proceeding.
However, I do not believe I should refrain from participation in the reweighing exercise
directed by the majority on the ground that I would not have designed the process to include
it. For that reason I concur in all portions of the opinion, except as to part III, and concur in
result as to part III.
Having explained this position, I do not expect to find it necessary to reiterate it in future cases in the unhappy but foreseeable circumstance that the same issue presents itself again.
departments, shall exercise any of the functions of another, except as in this Constitution expressly provided." Ind. Const. art. III, § 1.
Question 1: Did you review a questionnaire that was
completed by Alan Matheney in connection with Lake Superior Cause
. . . .
Question 3: Did you rely on Matheney's responses to the
questionnaire when sentencing him? If so, please explain.
Answer: It is difficult to reproduce thought processes which
are over six (6) years old. I do not think I relied on any one
answer or series of answers. If I had relied on any answer in the
questionnaire, I would have specifically noted the same in my
written findings. There was no such notation.
. . . .
Question 5: Was a copy of the completed questionnaire (sic)
to Matheney or his counsel? If so, please state when and to whom.
Answer: Yes. The questionnaire is an exhibit to the pre-
sentence investigation report. Whenever counsel for the defendant
received his copy of the pre-sentence, which is usually one (1) or
two (2) days before sentencing, he got a copy of the
(Petitioner's Supp. Br. at A-53, A-54.)
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