Stevens v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Karen Freeman-Wilson

Public Defender of Indiana Attorney General of Indiana

Thomas C. Hinesley Andrew L. Hedges

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana

Barbara S. Blackman

Deputy Public Defender

Indianapolis, Indiana

In The

INDIANA SUPREME COURT

CHRISTOPHER M. STEVENS )

Appellant (Petitioner Below), )

)

v. ) No. 79S00-9804-PD-00250

)

STATE OF INDIANA )

Appellee (Respondent Below). )

________________________________________________

APPEAL FROM THE TIPPECANOE SUPERIOR COURT

The Honorable George J. Heid, Judge

Cause No. 79D02-9402-CF-24

________________________________________________

On Appeal from the Denial of Post-Conviction Relief

June 26, 2002

DICKSON, Justice

In 1995, Christopher M. Stevens was convicted of the 1993 murder of

ten-year-old Zachary Snider. In accord with the jury's recommendation, the

trial court ordered the death sentence. This Court affirmed the conviction

and sentence on direct appeal. Stevens v. State, 691 N.E.2d 412 (Ind.

1997), cert. denied, 575 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998).

The defendant thereafter petitioned for post-conviction relief. After

extensive proceedings and the presentation of evidence, the post-conviction

court denied his petition. He now appeals from the denial of post-

conviction relief. The factual details of the offense are detailed in our

opinion on direct appeal. Id. at 416-420. We affirm the denial of post-

conviction relief.

The defendant enumerates seven issues presented for review. We

regroup them as follows: (1) ineffective assistance of trial counsel; (2)

governmental interference with the right to counsel; (3) ineffective

assistance of appellate counsel; (4) unreliability and unconstitutionality

of the death sentence; (5) incomplete, unfair, and biased post-conviction

relief adjudication.

Defendants who have exhausted the direct appeal process may challenge

the correctness of their convictions and sentences by filing a post-

conviction petition. Langley v. State, 256 Ind. 199, 203, 267 N.E.2d 538,

540 (1971). Post-conviction proceedings are civil proceedings, and a

defendant must establish his claims by a preponderance of the evidence.

Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). Because the

defendant is now appealing from a negative judgment, to the extent his

appeal turns on factual issues, he must convince this Court that the

evidence as a whole leads unerringly and unmistakably to a decision

opposite that reached by the post-conviction court. See Timberlake v.

State, 753 N.E.2d 591, 597 (Ind. 2001). In other words, the defendant must

convince this Court that there is no way within the law that the court

below could have reached the decision it did. Spranger v. State, 650

N.E.2d 1117, 1120 (Ind. 1995). We do not defer to the post-conviction

court's legal conclusions, but do accept its factual findings unless they

are "clearly erroneous." Ind.Trial Rule 52(A); Conner v. State, 711 N.E.2d

1238, 1245 (Ind. 1999); State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind.

1996), reh'g granted in part, 681 N.E.2d 181 (Ind. 1997). As we recently

stated in Timberlake:

Post-conviction procedures do not afford a petitioner with a super-

appeal, and not all issues are available. Rouster v. State, 705

N.E.2d 999, 1003 (Ind. 1999). Rather, subsequent collateral

challenges to convictions must be based on grounds enumerated in the

post-conviction rules. P-C.R. 1(1); Rouster, 705 N.E.2d at 1003. If

an issue was known and available but not raised on direct appeal, it

is waived. Rouster, 705 N.E.2d at 1003. If it was raised on appeal,

but decided adversely, it is res judicata. Id. (citing Lowery v.

State, 640 N.E.2d 1031, 1037 (Ind. 1994)). If not raised on direct

appeal, a claim of ineffective assistance of trial counsel is properly

presented in a post-conviction proceeding. Woods v. State, 701

N.E.2d. 1208,1215, [1220] (Ind. 1998). A claim of ineffective

assistance of appellate counsel is also an appropriate issue for post-

conviction review. As a general rule, however, most freestanding

claims of error are not available in a post-conviction proceeding

because of the doctrines of waiver and res judicata.

753 N.E.2d at 597-98. Furthermore, any "[i]ssues not raised in the

petition for post-conviction relief may not be raised for the first time on

post-conviction appeal." Allen v. State, 749 N.E.2d 1158, 1171 (Ind.

2001)(citing Ind.Post-Conviction Rule 1(8)("All grounds for relief

available to a petitioner under this rule must be raised in his original

petition.")); Howard v. State, 467 N.E.2d 1, 2 (Ind. 1984)("It is well

settled that issues which are not raised either at the trial level, on

appeal, or in a post-conviction petition are waived.").

1. Ineffective Assistance of Trial Counsel

The defendant contends that deficiencies in his trial representation

created a reasonable probability that the results of both the guilt phase

and sentencing phase would have been different. In this appeal, he asserts

numerous claims of alleged errors of trial counsel.

To succeed before the fact finder on his claim of ineffective

assistance of counsel, the defendant needed to prove by a preponderance of

the evidence not only that his trial counsel's representation fell below an

objective standard of reasonableness, but also that his counsels' errors

were so serious as to deprive him of a fair trial because of a reasonable

probability that, but for counsel's unprofessional errors, the result would

have been different. See Bell v. Cone, ___ U.S.___, 122 S.Ct. 1843, 1846,

___ L.Ed.2d ___ (2002); Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct.

1495, 1511, 146 L.Ed.2d 389, 416 (2000); Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Woods v. State,

701 N.E.2d 1208, 1224 (Ind. 1998). A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Strickland,

466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. In determining

whether a defendant proves his claim of ineffective assistance of counsel,

the fact-finding court is guided by various important guidelines. There is

a strong presumption that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.

Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Counsel is afforded

considerable discretion in choosing strategy and tactics, and these

decisions are entitled deferential review. Id. at 689, 104 S.Ct. 2065, 80

L.Ed.2d at 694. Isolated mistakes, poor strategy, inexperience, and

instances of bad judgment do not necessarily render representation

ineffective. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001); Timberlake,

753 N.E.2d at 603.

a. Inadequate Investigation

The defendant first asserts that his two attorneys at trial failed to

conduct a reasonable investigation into the facts and the law of his case.

He alleges that they failed to timely begin their investigation, to pursue

indicated avenues of investigation, to determine necessary expert

consultation, to adequately pursue funding for experts and investigation,

and to competently hire and assess the one mental health expert they did

hire. The defendant asserts that his trial counsel failed to develop a

coherent theory of the case that was legally and factually supported and

inherently consistent across the guilt and penalty phases. He maintains

that, had his counsel conducted a reasonable investigation, they would have

uncovered evidence of his mental illness and substance abuse relevant both

to the guilt and penalty phases of his trial.

The post-conviction court concluded that defense counsel "adequately

investigated the facts and law related to the guilt phase of [the

defendant's] trial," Record[1] at 710, and that counsel were "not

ineffective for failing to timely seek and secure necessary and appropriate

investigative and expert assistance during the trial." Id.

The defendant was represented at trial by two attorneys who were

found to meet the heightened criteria of experience and training required

for appointment in capital cases.[2] Trial Record at 59. They confronted

a significant challenge. The defendant had admitted to a family member

that he killed Zachary Snider and disclosed where he had concealed the

body. After his arrest, the defendant admitted in a videotaped confession

that he had repeatedly molested the ten-year old boy and then killed him,

first attempting to do so by suffocating him with a pillow, then by

strangling him with a cord, and finally by suffocating him by wrapping a

trash bag over his head. This crime occurred while the defendant was on

probation for a prior conviction of child molesting.

The defendant's trial attorneys sought and obtained funds to hire a

mitigation investigator, fact investigator, paralegal, and psychologist,

and all billings were ordered sealed. The mitigation investigator had

served as a sentencing consultant and mitigation investigator for nine

years prior to the defendant's trial and had completed the Indiana Public

Defender Council's death penalty mitigation training course. The

psychologist, Dr. Lawrence Lennon, examined Stevens and later testified for

the defense during the penalty phase of the trial. Dr. Lennon had been

recommended by the mitigation investigator. Other members of the criminal

defense community also told Stevens's attorneys that Dr. Lennon had done a

"very nice job" in testifying in another death penalty case. Dr. Lennon

holds a Ph.D. in clinical Psychology from Miami University in Ohio. He was

a psychology professor at St. Joseph's College, where he spent four years

as the chair of the Psychology Department, and was clinical director of the

Child and Adolescent Psychiatric Center at Humana Hospital in Indianapolis

from 1991 to 1994. Dr. Lennon conducted a preliminary evaluation of the

defendant prior to April 13, 1994 and met with him five times from June

through December 1994. Dr. Lennon also met with the defendant's parents

and siblings, and reviewed school records, records from the Hamilton

Center, and arrest records. Other individuals from Dr. Lennon's office,

including a social worker and another psychologist, participated in

evaluations of the defendant. Defense counsel considered Dr. Lennon a good

fit because of his expertise in treating children and adolescents, and the

defendant's attorneys sought and received a transcript of Dr. Lennon's

testimony in a case the attorneys felt had similar issues. The defendant's

trial counsel sought discovery and filed multiple pretrial motions and

supporting briefs, including motions to suppress, motions in limine,

motions to dismiss, and a motion for change of venue.

The defendant claims, in part, that his counsel unreasonably delayed

their investigation. Stevens was tried for murder in January 1995, within

seventeen months of his arrest in July 1993. Defense counsel entered their

appearances in August 1993. In November 1993 counsel made their first

request for funding for experts. This request was granted in May 1994

along with funds for an investigator.[3] Funding for mitigation

investigation was secured in January 1994, and a mitigation specialist

joined the defense. Defense counsel periodically requested additional

amounts for the mitigation, fact, and expert witnesses. Such funding

requests were approved. Billing records indicate that information was

being gathered, procedural issues were being worked out with the prosecutor

and the court, and research was being done on legal issues during the three

months before the first funding request. Supp. Record at 25-29. Because

of successful motions for continuance, Stevens was not tried until seven

months after the time counsel added the psychologist and the fact

investigator to their team of a paralegal and mitigation investigator.

These facts do not compel a finding of deficient performance in the timing

of trial counsel's investigation.

The defendant also asserts that his counsel unreasonably limited

their investigation of the defendant's substance abuse and mental illness,

foreclosing the development of a viable defense and mitigation strategy

based on his mental disease and the effects of his substance abuse in favor

of a defense unsupported by the law or the facts and a mitigation case that

was of very low weight. He challenges the post-conviction court's finding

that counsel were "not ineffective for failing to hire a toxicologist to

offer expert testimony about Petitioner's use of drugs or alcohol." Record

at 716. Similarly, the defendant also asserts that his counsel failed to

adequately investigate his mental illnesses and investigate the possibility

of mental disease or defect as a defense or mitigation. Specifically, he

claims that his counsel "did not retain a consultant on mental health

issues, seek a variety of expert mental health opinions, or even acquaint

themselves with the forensic approach of the one expert they retained."[4]

Br. of Petitioner-Appellant at 26.

During the guilt phase trial, the defense strategy was to urge that

the killing was done in sudden heat and thus, if the defendant were guilty,

he was guilty of voluntary manslaughter and not murder. At post-

conviction, defense counsel testified that this was one of the alternative

theories they had been considering from "day one," and when Stevens's

confession was not suppressed, voluntary manslaughter became the theory of

the case. Record at 2511-12. Counsel based this theory on a statement in

the defendant's confession that he "snapped" or "went off." Record at

2512. Defense counsel tendered an instruction on voluntary manslaughter,

which the trial court refused to give. During closing argument, defense

counsel nevertheless asked the jury to return a verdict of voluntary

manslaughter.

While the defendant argues in retrospect that a mental illness defense

would have been more effective, his proposed avenue was not without its

pitfalls. The post-conviction court noted that, had defense counsel

pursued this defense, they would have opened the door to the admission of

substantial incriminating evidence not otherwise presented during the guilt

phase. This evidence included testimony of a witness that, upon the

defendant's prior release from jail onto probation for a previous

conviction of child molesting, the defendant had declared that he planned

to kill his next child molesting victim to avoid returning to jail. The

trial court determined that defense counsel adequately investigated issues

of substance abuse and mental illness and reasonably chose to pursue a

different strategy.[5] The post-conviction court did not err in denying

relief on this claim.

b. Deficient Preparation for and Performance at Trial

Enumerating numerous specific instances of claimed deficiencies, the

defendant contends that his trial counsel provided constitutionally

ineffective assistance in their preparation for and performance at the

guilt, penalty, and sentencing phases of his trial.

(1) Voluntariness of Confession

The defendant argues that his lawyers failed to competently litigate

the reliability and voluntariness of his confession to police. He asserts

that his counsel could have argued that he "disassociated during the police

interrogation" and exhibited other signs of mental illness that should have

been raised in the motion to suppress and in asking the jury to find the

confession unreliable.

One of the defendant's post-conviction witnesses, Dr. Phillip Coons,

gave his opinion that there were at least two times when the defendant was

dissociating during his confession. The post-conviction court acknowledged

this testimony, but the court concluded that the defendant had presented no

evidence of coercive police acts and therefore had not proven the predicate

to finding a confession not voluntary. Record at 722. In our opinion on

direct appeal, we rejected the defendant's claim that his confession was

involuntary, noting:

Finally, review of the videotape clearly indicates no elements of

coercion. The entire interview lasted about an hour. Instead of

showing overbearing officers soliciting short, "yes/no" responses from

a broken, harassed, tired suspect, the tape shows non-threatening

police officers asking general questions of Stevens, and then an alert

responsive Stevens supplying long, detailed narrative.

Stevens, 691 N.E.2d at 424. To the extent that the defendant's post-

conviction claim on this issue is not be foreclosed by res judicata, it is

governed by the principle that a defendant's claimed mental condition does

not render a confession involuntary absent coercive police conduct. See

Connelly v. Colorado, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d

473, 484 (1986)(holding that even when defendant's mental condition is

questioned, coercive police conduct is a predicate to finding a defendant's

confession involuntary); Pettiford v. State, 619 N.E.2d 925, 928 (Ind.

1993)("Although a person's mental condition is relevant to the issue of

susceptibility to police coercion, where the person voluntarily makes a

confession without police coercion the confession may be considered in

spite of the mental condition."). We find that there is no reasonable

probability that the trial court would have suppressed the confession even

had defense counsel presented all the evidence presented at the post-

conviction proceedings, nor is it reasonably probable that the jury's

assessment of the defendant's confession would have been affected by this

testimony. The post-conviction court did not err in denying relief on this

claim.

(2) Venue Change

The defendant contends that he was prejudiced by his counsel's

deficient performance when they failed to seek a second change of venue.

Upon motion of defense counsel, the case was removed from Putnam County,

where the crime was committed, and venued to Tippecanoe County, two

counties north of Putnam County. The defendant now argues that both

counties are within the Indianapolis media market,[6] that his counsel had

no strategic reason to keep the case in Tippecanoe County, and that the

failure to seek a second change of venue prejudiced him by denying him his

right to a trial by an impartial jury.

The post-conviction court found that defense counsel were not

ineffective for failing to make a second motion for a change of venue due

to pretrial publicity. The court found that, given the inherent

newsworthiness of the case, media coverage would have been prevalent

anywhere and although the coverage was at times extensive it was not

necessarily on the front page as it would have been in Putnam County. The

court also found that Stevens failed to demonstrate prejudice as the trial

record showed that every panel of the venire was carefully questioned about

pretrial publicity by the court, State, and defense counsel. The evidence

does not compel a decision opposite that reached by the post-conviction

court.

(3) Jury Questionnaire and Selection

The defendant challenges his trial counsel's performance in jury

selection and particularly as to the jury questionnaires submitted to

prospective jurors.

He argues that his trial counsel used questionnaires that failed to

address mitigation issues or to explain the meaning of "life without

parole," and thus failed to ensure "that prospective jurors understood they

could address future dangerousness with this sentencing option." Br. of

Petitioner-Appellant at 34. We first note that the questionnaire form was

not generated by counsel but prepared by the trial court and submitted to

counsel for review. Trial Record at 343. Jury questionnaires are a useful

tool employed by courts to facilitate and expedite sound jury selection.

Their proper purpose is not to condition or indoctrinate prospective jurors

with the parties' contentions, notwithstanding attempts of some counsel to

the contrary. Ineffective assistance of counsel may not be based upon an

alleged failure of counsel to thus misuse jury questionnaires.

The defendant further alleges that his counsel were deficient in jury

selection by failing to "integrate their mitigation theory into the voir

dire process," Br. of Petitioner-Appellant at 34, and to exhaust peremptory

challenges. We have held that it is permissible to use voir dire to

inquire into jurors' biases or tendencies to believe or disbelieve certain

things about the particular line of defense. Wisehart v. State, 693 N.E.2d

23, 45-46 (Ind. 1998). The record reveals that defense counsel's voir dire

questions extensively inquired regarding the jurors' openness to

considering mitigating factors to prevent the imposition of the death

penalty. We decline, however, to find a criminal defense attorney's

performance to be deficient for failing to condition jurors as to the

particular mitigation evidence anticipated in an individual case.

The post-conviction court found that trial counsel were not

ineffective for failing to exhaust their peremptory challenges. The court

noted that, between the two of them, the defendant's trial counsel had

spent over fifty hours reviewing the completed jury questionnaires. They

challenged nineteen jurors for cause, seventeen of which were granted. The

court noted that they used seventeen of their twenty peremptory challenges,

but for strategic reasons did not exhaust them because "what was coming up

was worse." Record at 726. The court also observed that counsel

successfully rehabilitated several jurors that the State challenged for

cause, forcing the State to exercise peremptory challenges. The evidence

does not compel a decision opposite that reached by the post-conviction

court.

(4) Victim Impact Evidence

The defendant argues that counsel were deficient in not objecting to

victim impact evidence in the State's opening statement and during its case

in chief. He first urges that his counsel should have objected to the

following remarks during the State's opening statement: "Zachary Snider was

a typical ten-year-old. He loved to fish, play ball, ride his bicycle, and

he couldn't sit still for long . . . His parents, Todd and Sandi Snider,

both worked to make ends meet." Trial Record at 3648. The defendant also

challenges his trial counsel's failure to object to the State's use of a

picture of the Zachary Snider holding a fish. This picture was passed to

the jury and was allegedly displayed by the prosecution on four other

occasions during the guilt phase of the trial. Defense counsel never

objected to the photograph and the defendant claims they were deficient for

not objecting to this "prejudicial drumbeat of victim impact evidence."

Br. of Petitioner-Appellant at 38.

The post-conviction court found that defense counsel was not

ineffective for failing to object to the introduction and use of the

photograph. One of the defendant's defense attorneys testified during the

post-conviction proceedings that, while he believed the use of the

photograph was repetitive, he observed that it was sometimes prudent to not

object so as to not draw the jury's attention to the evidence. A decision

to not object to evidence when the objection may be more damaging than the

evidence is within the wide range of professionally competent assistance.

The trial court concluded, "Defense counsel's decision not to object to the

admission of the [victim impact evidence] was a reasonable decision not to

draw the jury's attention to this testimony." Record at 734. We agree.

Because this represents reasonable trial strategy and because of the

questionable merit of the allegedly omitted objections, the evidence does

not compel a decision opposite that reached by the post-conviction court.

(5) Loss of Right to testify

As one of his enumerated examples of alleged ineffective assistance of

counsel, the defendant contends that his trial counsel gave him incorrect

advice, upon which he based his decision not to testify at trial. He

argues that counsel's advice was based upon the presumption that the

defendant's testimony could add nothing supportive of the defense's

strategy to seek jury a instruction on voluntary manslaughter. The post-

conviction court, however, found:

On the contrary, defense counsel were concerned about having

Petitioner testify because he was an [sic] chronic liar who would have

been a bad witness. Moreover, if Petitioner had testified during the

guilt phase, there is a danger that he would open the door to

otherwise inadmissible evidence. Defense counsel's advice that

Petitioner not testify was a reasonable strategic decision based on

sound professional judgment.

Record at 724. We are not persuaded that the evidence compels a decision

opposite that reached by the post-conviction court.

(6) Pursuing Voluntary Manslaughter as Defense Theory

The defendant claims that his trial counsel were ineffective for

pursuing a "fundamentally flawed" approach to the case by proceeding on a

theory of voluntary manslaughter. They tendered three proposed

instructions that dealt with voluntary manslaughter, but these were

rejected by the trial court. The defendant argues that there was no

evidence in the record to support this theory, and that there was another

viable defense available but not used.

The defendant urges that, if defense counsel had consulted other

mental health experts, counsel "would have learned of [the defendant's]

dissociative disorder, borderline personality disorder, chemical

dependency, and LSD impairment at the time of the offense." Br. of

Petitioner-Appellant at 42. In the post-conviction proceedings and in this

appeal, the defendant's present counsel assert that the defendant was raped

as a child; that at the time of the killing the defendant switched his

identity with that of Zachary; that the defendant killed Zachary "because

it's what he would have wanted in that molestation at age 10, to have been

killed by his abuser;" and that the defendant's ability to appreciate the

wrongfulness of his conduct "was disengaged when he was dissociating." Id.

The defendant argues further that, even if the voluntary manslaughter

defense were regarded as legitimate strategy, this would not excuse the

failure to present the mental illness defense.

The post-conviction court found that counsel's decision to pursue the

voluntary manslaughter strategy, while ultimately unsuccessful, did not

amount to deficient performance. The court pointed out that "[a]ny

appreciable evidence of sudden heat justifies an instruction on voluntary

manslaughter," Roark v. State, 573 N.E.2d 881, 882 (Ind. 1991), and that

sudden heat is defined as provocation arising from a variety of emotions.

In the defendant's admissions of guilt to his brother, the defendant said

that he "clicked" or "went off" when Zachary threatened to tell his parents

about the defendant's sexual conduct. In the defendant's confession to

police, he stated that he killed Zachary because he was afraid that Zachary

would report him. Concluding that the defendant received effective

assistance of counsel as to their strategy to pursue voluntary manslaughter

instructions, the post-conviction court found that the defendant's trial

attorneys "pursued the most viable defense available to them." Record at

664.

As to the failure to present a mental illness defense during the guilt

phase, the post-conviction court noted that, had defense counsel done so,

they would have opened the door to the admission of substantial

incriminating evidence not otherwise presented during the guilt phase. Cf.

Miller v. Anderson, 255 F.3d 455 (7th Cir. 2001). As we noted above, this

included testimony that, upon the defendant's prior release from jail to

probation for a previous conviction of child molesting, the defendant had

declared his intent to kill his next child molesting victim to avoid

returning to jail.

We conclude that the evidence as a whole does not lead unerringly and

unmistakably to a decision opposite that reached by the post-conviction

court, and we find that defense counsel's choice of defense theory did not

constitute ineffective assistance of counsel.

7. Defense guilt phase closing argument

The defendant contends that defense counsel were deficient in failing

to present argument or tender an instruction regarding jury's authority

under Art. 1, Sec. 19 of the Indiana Constitution to determine both the law

and the facts. Stevens did not raise this issue in his petition for post-

conviction relief. Issues not raised in the petition for post-conviction

relief may not be raised for the first time on post-conviction appeal. See

P-C.R. 1(8); Allen, 749 N.E.2d at 1171.

(8) Mitigation Evidence

The defendant contends that his trial counsel were deficient during

the penalty phase and sentencing hearing by failing to present sufficient

evidence of mitigating circumstances. The defense presented various

witnesses and evidence showing various mitigating circumstances including

his parents' divorce and his living in the homes of different people while

growing up, the defendant's troubled childhood including suffering

childhood sexual abuse, his adolescent alcohol and drug use and diagnoses

of passive personality, his depression and suicide attempts, and his poor

academic performance. The defendant's post-conviction counsel, however,

assembled several witnesses to testify regarding information and theories

that were not employed by defense trial counsel.

The defendant first argues that his trial lawyers unreasonably

limited their penalty phase and sentencing presentations to events of his

life that occurred before age 18 and that his counsel unreasonably relied

upon Dr. Lennon, rather than presenting other psychological experts

regarding the defendant's mental or emotional distress at the time of the

killing. He argues that Dr. Lennon "was a fatal witness for the defense,"

noting that on cross-examination by the State, Dr. Lennon agreed with the

State's theory that Zachary's murder appeared directly related to the

defendant's fear of having to return to prison, and the defendant was not

susceptible to traditional psychotherapy and was a serious danger to

society. Br. of Petitioner-Appellant at 45. The defendant further urges

that his trial counsel failed to present a reason for the defendant's

crime. He argues that counsel should have presented expert evidence that,

at the time of the killing, the defendant was under a mental disease or

defect, with an impaired ability to appreciate the wrongfulness of his

conduct and conform it to the law; that he was very likely influenced by

the interactive use of drugs; that his disorders were treatable with

medication and intensive, individual psychotherapy; and that he would not

constitute a pedophilia threat in prison.

The post-conviction court rejected these claims. The court observed

that expert witness opinions suggesting that the defendant had an impaired

ability to appreciate the wrongfulness of his conduct would have been

strongly contradicted by the extensive evidence of the defendant's multiple

attempts to kill Zachary and then carefully to take steps to cover-up the

crime. The court noted that even one of the defendant's own experts at post-

conviction acknowledged that the defendant could appreciate the

wrongfulness of his conduct when he took steps to hide Zachary's body. The

post-conviction court later concluded:

Defense counsel were not ineffective for failing to investigate and

prepare evidence of organic and mental impairments, including

dissociative disorders, borderline personality disorders, and the

effects of long-term drug use. Defense counsel's investigation of

Petitioner's mental health and prior use of drugs was reasonable, . .

. . Both of [defendant's trial counsel] testified that they were aware

of Petitioner's prior drug abuse. Dr. Lennon was also aware of

Petitioner's prior drug abuse. However, Petitioner denied having

recently used drugs: he "used to do drugs, used to drink," but that he

stopped drinking when he got arrested for child molesting, and "had

stopped smoking marijuana awhile before that, long before that, pretty

much cause my sister got killed by a guy that was high and ever since

that I had, I had gone from doing it heavy to real light and then

stopped." Moreover addiction counselor Needham evaluated Petitioner

in January 1993 and found that Petitioner did not have a drug or

alcohol problem. Thus, defense counsel's investigation was

reasonable.

Moreover, had defense counsel adopted the strategy of

emphasizing Petitioner's prior drug use, this would have been

inconsistent with their mitigation strategy of portraying Petitioner

as the passive victim of abuse. As Dr. Lennon testified, "so much of

[Petitioner's] behavior could be explained by the abuse, the neglect

that he's had on top of his genetic predisposition, and then you look

at all the drugs that he's been surrounded with his birth mother, and

then the fact that she probably—even though she denies it, the

evidence will suggest that she probably did do drugs or alcohol during

pregnancy." Had defense counsel elicited evidence of Petitioner's

prior use of illicit drugs, he would no longer appear to be a passive

victim molded by outside forces, but would appear as someone who had

actively decided to break the law. As the Seventh Circuit explained

in Stewart v. Gramley, 74 F.3d 132, 136 (7th Cir. 1996), "What is

brought out [during the penalty phase] that will help [a defendant] is

what goes to show that he is not as "bad" a person as one might have

thought from the evidence in the guilt phase of the proceeding. What

is brought out that will hurt him is what goes to show that he is,

indeed, as bad a person, or worse, than one might have thought from

just the evidence concerning the crime." Defense counsel was not

ineffective for failing to pursue a mitigation strategy that could

have caused the jury to think that Petitioner had a more extensive

history of lawbreaking than was otherwise apparent.

Record at 675-76 (included citations to record omitted).

The post-conviction court thus found that defense counsel were aware

of petitioner's past drug abuse and investigated the mental health issues

through the use of Dr. Lennon. Further, the court found that presenting

the petitioner's chronic drug abuse would cut against the defense strategy

of portraying the petitioner as a passive victim of abuse rather than

someone with an extensive history of lawbreaking. The court determined

that the strategic decision to pursue this mitigation strategy over another

was not ineffective assistance of counsel. We are not persuaded that the

evidence in the record unavoidably points towards an opposite result.

The defendant also contends that defense counsel was constitutionally

ineffective because of a statement made by counsel during the penalty phase

closing argument: "I am not going to tell you that anything that happened

in Chris Stevens's life explains or excuses the events of July 15th, 1993.

It doesn't, and he will have to suffer the punishment for that." Trial

Record at 5440. The State responds that this statement was reasonable

because it reminded the jury that "recommending a sentence other than death

would not mean that they were excusing [the defendant] for his actions, and

would not mean that [the defendant] would escape with no punishment. Br.

of Appellee at 37.

The challenged statement was in the context of surrounding argument

urging that the important part of the case before the jury was not whether

the defendant committed the crime, but rather what penalty to recommend: a

term of years, life imprisonment without parole, or death—any of which

constitute severe punishment. Counsel's argument clearly emphasized the

importance of mitigating circumstances. The challenged statement taken in

context cannot reasonably be understood to have invited the jury to

disregard mitigating circumstances. We decline to find deficient

performance based on his claims of failure to present sufficient mitigating

evidence during the penalty phase and sentencing.

(9) Life without Parole Instruction

The defendant contends that his trial counsel were deficient for

failing to tender a penalty phase instruction that would have informed the

jury of the "true effect" of life without parole. Br. of Petitioner-

Appellant at 50. He argues that such an instruction was needed to offset

the possibility that a juror might believe that if sentenced to life

without parole, the defendant could be released early. The defendant

argues that such an explanation should have been provided because there had

been evidence on the issue of future dangerousness and because his trial

counsel allegedly provided misguided speculation during jury selection when

responding to a potential juror's question concerning the meaning of life

without parole.[7]

The post-conviction court's decision noted that it is unnecessary to

instruct juries on words that are commonly understood. The court found

that "'life without the possibility of parole' consists of common words

that may be easily understood by persons of average understanding." Record

at 733. It also found that had any such instruction been tendered it would

have been refused. The post-conviction court concluded that the defendant

had received effective assistance of counsel as to this claim. We agree

and decline to find ineffective assistance of trial counsel on this issue.

(10) Conflict of Interest

The defendant contends that his two trial counsel disliked him and

that their personal animosity toward him interfered with their duty of

loyalty to their client, adversely affecting their representation of him,

to his prejudice. This issue was not designated in the petition for post-

conviction relief and thus may not be raised on appeal. See P-C.R. 1(8);

Allen, 749 N.E.2d at 1171.

(11) Use of Stun Belt

The defendant devotes a substantial section of his brief to his claim

that the sheriff's decision to place a stun belt[8] on the defendant during

trial is reversible error. This Court has recently declared that stun

belts may not be used on defendants in Indiana courtrooms. Wrinkles v.

State, 749 N.E.2d 1179, 1194 (Ind. 2001). To the extent that the defendant

asserts this issue as an independent claim, however, this issue is

procedurally defaulted because it was not raised at trial, Williams v.

State, 690 N.E.2d 162, 166 (Ind. 1997), or on direct appeal, Rouster v.

State, 705 N.E.2d 999, 1003 (Ind. 1999). But because the defendant's

argument also claims that his trial counsel's failure to object to the stun

belt at trial constitutes prejudicial deficient performance, we will

address the issue in the context of ineffective assistance of trial

counsel.

The post-conviction court concluded that defense counsel were not

ineffective for failing to raise this claim, noting that no evidence was

presented that the defendant was impeded in his ability to assist his

counsel, that no jurors were aware that Stevens was wearing a stun belt,

and that the belt did not affect Stevens's appearance before the jury.

The defendant asserts that while none of the jurors were aware that

he was wearing a stun belt, their perception of him was still affected by

the fact that he was under restraint. The defendant argues that he was

harmed because wearing the belt made him appear to the jurors as

emotionally withdrawn, subdued, and unusually silent, which may have

influenced them to recommend the death penalty. In the post-conviction

proceedings, the defendant presented the testimony of Dr. Robert Kaplan who

testified that the wearing of the stun belt at trial would have inhibited

the defendant's expression of emotion.

The testimony of five of his capital trial jurors and the affidavit of

a sixth juror were also presented. The jurors described the defendant as

emotionally withdrawn, silent, and subdued. One juror stated that he did

not appear remorseful. Three jurors stated that they observed the

defendant interacting with his attorneys by passing notes and whispering.

The defendant recognizes that his demeanor and affect as seen by the jurors

during trial was essentially the same demeanor and affect they had seen

during his videotaped confession. Br. of Petitioner-Appellant at 58.

We conclude that the evidence does not unmistakably lead to a result

contrary to the post-conviction court's factual findings. From the

circumstances presented in this case, we find no reasonable possibility

that but for the failure of trial counsel to object to the stun belt, the

results of the guilt phase, penalty phase, or sentencing would have been

different.

2. Government Interference with Right to Counsel

The defendant contends that his trial counsel's preparation for and

defense at trial was frustrated by various acts of governmental

interference under circumstances that constructively denied him his right

to counsel, to present a defense, and to a fair and reliable trial. His

claim focuses upon trial counsel's difficulties in obtaining unquestioned

attorney fee payments, the denial of ex parte access by defense counsel to

the court regarding funds for investigative assistance, and counsel's

inability to obtain further mental health evaluations. While these claims

were known and not raised in direct appeal, to the extent that they are in

the nature of claims of ineffective assistance of counsel under the Sixth

Amendment and require consideration of evidence outside the trial record,

we will address them. The gravamen of his claim is that the court

prevented his attorneys from adequately preparing for trial and securing

expert assistance. In United States v. Cronic, 466 U.S. 648, 104 S.Ct.

2039, 80 L.Ed.2d 657 (1984), the Supreme Court recognized that when

surrounding circumstances define a very small likelihood that any lawyer,

even a fully competent one, could provide effective assistance, prejudice

will be presumed without inquiry into the actual conduct of the trial. Id.

at 659-60, 104 S.Ct. at 2047, 80 L.Ed.2d at 668. Only where there has been

an actual breakdown of the adversarial process will a Sixth Amendment

violation be found without inquiry into counsel performance. Id. at 657-

58, 104 S.Ct. at 2046, 80 L.Ed.2d at 667.

(a) Fee Disputes

The defendant first alleges that Putnam County Circuit Judge

LaViolette, who presided over the case until its venue was changed to

Tippecanoe County, caused his attorneys "numerous difficulties in obtaining

compensation" such that they "had to expend more time on collateral issues

and attempting to have the assets or the resources to prepare for trial

than [they had] in preparing for trial." Br. of Petitioner-Appellant at

61(citing Trial Record 733, 1413). The post-conviction court found that

the billing procedures did not result in prejudice as neither counsel

indicated at the post-conviction hearing that the disputes "prevent[ed]

them from taking any particular step or cause[d] them to forgo any

particular part of their defense." Record at 730.

The post-conviction court concluded that the fee disputes did not

materially affect counsel's performance. At the post-conviction hearing

one defense counsel stated that he believed that at the initial stages of

the case the dispute "impaired our ability to research and investigate the

case," but he could not recall any particular thing he did not do because

of the disputes. Record at 2067, 2088. The other attorney stated that the

disputes took up time, but he could not specify any particular step he did

not take because of the disputes. Record at 2556. The evidence as a whole

does not lead us unerringly to a decision opposite that of the post-

conviction court.

(b) Ex Parte Hearings for Funds

The defendant next alleges that judicial denial of his counsel's

request for an ex parte hearing to determine funds for experts and

investigation denied him a fundamental requirement to prepare and present a

defense. He argues that the inability to obtain an ex parte hearing

resulted in his attorneys (1) prematurely disclosing the identity of its

consulting expert, (2) being unwilling to seek additional mental health

experts or secure other evaluations, and (3) being hampered in their

preparation for trial and choice of trial strategies.

The post-conviction court found that the "trial court did not deny

defense counsel's requests for ex parte hearings, but merely informed

counsel that they must show good cause before an ex parte hearing would be

granted." Record at 745. The post-conviction court also determined that

the order granting funds did not restrict counsel to any particular expert.

Id. at 746. In addition, the court found that the defendant did not

identify any part of the trial record where funds were denied after the

case was venued nor where defense counsel's "thought process and strategies

were required to be disclosed prior to the approval of funds for expert

witnesses." Record at 746.

The defendant urges that appointed capital case counsel should be

entitled to an ex parte determination of all motions for funds for

assistance. We decline this broad request. Communication between one

litigant and the court, in the absence of the other parties, is strongly

discouraged. See Ind.Professional Conduct Rule 3.5; Ind.Judicial Conduct

Canon 3(B)(8). In Newhart v. State, 669 N.E.2d 953 (Ind. 1996), the

defendant claimed that the trial court erred when it refused to grant him

an ex parte hearing on his request for funds. We stated that "[o]ur

ethical rules counsel against such ex parte communications," and concluded

that the defendant had not persuaded us that the trial court erred in this

regard. Id. at 955.

Courts in sister states have reached varying decisions on the right

to an ex parte hearing. The Arizona Supreme Court in State v. Apelt, 861

P.2d 634, 649-50 (Ariz. 1993), determined that neither the Fourteenth

Amendment's guarantee of due process nor that of equal protection entitles

defendants to an ex parte hearing. Citing a similar judicial conduct

canon as we did in Newhart, the Arizona court determined that ex parte

communications are forbidden except where authorized by law, and as there

were neither statutory nor organic law authorizing such a procedure the

trial court did not err in refusing to conduct the hearing ex parte. See

also State v. Floody, 481 N.W.2d 242, 256 (S.D. 1992)(no constitutional

grounds for ex parte hearing); Ramdass v. Commonwealth, 437 S.E.2d 566,

570 (Va. 1993)(rejecting both federal and state constitutional arguments

for an ex parte hearing), rev'd on other grounds sub nom., 512 U.S. 1217,

114 S.Ct. 2701, 129 L.Ed.2d 830 (1994). In contrast, Louisiana has

recognized a constitutional basis for allowing an ex parte proceeding, but

requires a defendant to first demonstrate a particularized prejudice to

the defendant from holding an adversarial hearing. See State v. Touchet,

642 So.2d 1213 (La. 1994). In State v. Phipps, 418 S.E.2d 178, 191 (N.C.

1992), North Carolina acknowledged that there are strong reasons to allow

such proceedings to be held ex parte, but refused to find them to be

constitutionally required and rather left the decision to trial court's

discretion. Other states have decided that defendants are entitled to an

unqualified ex parte hearing concluding that indigent defendants should

not be required to reveal a defense theory or the identity of experts who

are consulted but who may not testify at trial. See Ex Parte Moody, 684

So.2d 114, 120 (Ala. 1996)(holding criminal defendant entitled to ex parte

hearing on whether expert assistance is necessary based on Fifth, Sixth,

Fourteenth Amendments to Constitution); Brooks v. State, 385 S.E.2d 81, 84

(Ga. 1989) (deciding indigent defendant entitled to ex parte hearing to

determine entitlement to public funds); Arnold v. Higa, 600 P.2d 1383,

1385 (Haw. 1979)(determining indigent defendant entitled to ex parte

hearing so that he can demonstrate indigency or particularize reasons for

request for litigation expenses without disclosing defensive theories to

State); McGregor v. State, 733 P.2d 416 (Okla. Crim. App. 1987)(holding

hearing to determine if defendant was entitled to court-appointed

psychiatrist on motion must be ex parte); State v. Barnett, 909 S.W.2d

423, 429 (Tenn. 1995)(holding that when indigent defendant seeks

psychiatric assistance, the hearing should be ex parte); Williams v.

State, 958 S.W.2d 186, 193-94 (Tex. Crim. App. 1997)(deciding that an

indigent defendant is allowed an ex parte proceeding because the defendant

should not have to disclose defensive theories to prosecution in order to

obtain "basic tools of an adequate defense").

While we recognize that strategic considerations will often lead

defense counsel to prefer secrecy as to their funding requests, we find no

automatic constitutional entitlement to such ex parte proceedings. A trial

court may, however, upon a showing of good cause, permit an ex parte

request for funds for assistance. The denial of such a request is

reviewable for abuse of discretion.

In the present case the defendant has not demonstrated that the

actions of the trial court in requiring good cause before permitting an ex

parte request resulted in an actual breakdown of the adversarial process.

There is no Cronic violation here.

3. Ineffective Assistance of Appellate Counsel

The defendant also contends that he did not receive effective

assistance of his appellate counsel. His brief focuses upon the claim that

his appellate counsel inadequately presented the issue that Zachary's age

was "double counted" as an aggravating circumstance because age was a

factor in more than one of the aggravators. The defendant also mentions in

cursory fashion three additional allegations of deficient appellate

representation: (a) failing to argue that his sentence was unreliable due

to a reduction in the jury's sense of personal responsibility; (b) failing

to adequately argue that the State improperly injected victim impact

evidence through its use of a photograph of Zachary holding a fish; and (c)

failing to raise the issue of governmental interference.

A defendant is entitled to the effective assistance of appellate

counsel. Evitts v. Lucy, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 825

(1985); Johnson v. State, 693 N.E.2d 941, 950 (Ind. 1998). Appellate

ineffectiveness claims are evaluated under the Strickland standard of

conduct falling below professional norms and resulting in prejudice such

that our confidence in the outcome is undermined. Bieghler v. State, 690

N.E.2d 188, 192-93. (Ind. 1997). As for challenges to an appellate

counsel's strategic decision to include or exclude issues, courts should be

particularly deferential "unless such a decision was unquestionably

unreasonable." Id. at 194. To prevail on a claim of ineffective

assistance of appellate counsel, a defendant must "show from the

information available in the trial record or otherwise known to appellate

counsel that appellate counsel failed to present a significant and obvious

issue and that this failure cannot be explained by any reasonable

strategy." Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind. 2000).

Deciding which issues to raise on appeal is one of the most important

strategic decisions of appellate counsel. Bieghler, 690 N.E.2d at 193.

Appellate counsel is not deficient if the decision to present "some issues

over others was reasonable in light of the facts of the case and the

precedent available to counsel when that choice was made." Id. at 194.

Even if counsel's choice is not reasonable, to prevail, petitioner must

demonstrate a reasonable probability that the outcome of the direct appeal

would have been different. Id. An appellate ineffectiveness claim

challenging the quality of counsel's actual presentation of a claim must

"overcome the strongest presumption of adequate assistance." Id. at 196.

If the claimed issues were presented by appellate counsel and analyzed by

an appellate court, relief will only be afforded when the "appellate court

is confident it would have ruled differently." Id.

The defendant contends that if his appellate counsel would have

better presented the issue of overlapping aggravators, there is a

reasonable probability that he would have prevailed on appeal. The issue

was presented and extensively addressed on direct appeal. Stevens, 691

N.E.2d at 433-34. The defendant does not persuade us that this issue

presented or argued differently would have produced a different result.

The defendant also claims ineffective assistance of appellate counsel

alleging that his appellate counsel failed to argue that his sentence was

unreliable due to a reduction in the jury's sense of personal

responsibility because prospective jurors were "repeatedly reminded that

they were only recommending a sentence [and two jurors] were exposed to a

prospective juror's comments that she could rationalize rendering a verdict

on the ground that the judge would be making the final decision." Br. of

Petitioner-Appellant at 66. The post-conviction court found that no

evidence was produced at trial or on post-conviction that the jury's sense

of personal responsibility was reduced, and that petitioner did not

demonstrate that this issue was of greater merit than the issues actually

raised on appeal. Record at 740.

The jury selection process lasted five days. The defendant does not

cite the record or otherwise direct our attention to the instances in which

he claims that prospective jurors were "repeatedly reminded that they were

only recommending a sentence." As to his allegation that two jurors

overheard another prospective juror's comment, there was no objection by

trial counsel, nor did trial counsel challenge to remove the two jurors who

overheard the comment.

As noted above, with respect to the defendant's challenge to his

appellate counsel's strategic decision to include or exclude this issue, we

should be particularly deferential "unless such a decision was

unquestionably unreasonable." Bieghler, 690 N.E.2d at 193-94. The

defendant has failed to demonstrate that his appellate counsel's decision

to omit this issue was unreasonable. The defendant has likewise not shown

a reasonable probability that the outcome of the direct appeal would have

been different if the issue had been presented. We agree with the decision

of the post-conviction court to deny relief as to the defendant's claim of

ineffective assistance of appellate counsel.

As to the defendant's assertion that his appellate counsel failed to

adequately argue that the State improperly injected victim impact evidence

by its use of a photograph of Zachary holding a fish, the designation of

alleged ineffective appellate counsel in his petition for post-conviction

relief does not identify any claim regarding victim impact evidence or

mention the State's use of the photograph. The defendant's petition for

post-conviction relief does claim that his appellate counsel was deficient

in failing to adequately present a claim that the trial outcome "was unfair

and unreliable due to the injection of irrelevant and prejudicial evidence

proscribed by Ind. Evidence Rule 404(b),"[9] Record at 70, but the argument

in his appellate brief does not refer to any claimed violation of Rule

404(b). We deem this claim to be procedurally defaulted. See P-C.R. 1(8);

Allen, 749 N.E.2d at 1171. Similarly, the defendant's claim that his

appellate counsel failed to raise issues of governmental interference was

not designated in his petition for post-conviction relief and is thus

likewise not available. Furthermore, we have already discussed both of

these claims in the context of the defendant's allegations of ineffective

assistance of counsel at trial.

4. Lethal Injection, Sentence Reliability

The defendant challenges the denial of his post-conviction claims

that Indiana's lethal injection execution scheme violates international

law, and that it contravenes evolving standards of decency, that it

constitutes cruel and unusual punishment, and that his death sentence is

unreliable.

The first three of these claims were available but not presented on

direct appeal and may not be asserted as post-conviction claims. See

Timberlake, 753 N.E.2d at 597. As to the defendant’s claim that his death

sentence is unreliable, he asserts that the "jury and the judge were never

provided information necessary to make an informed judgment as to the

appropriate sentence." Br. of Petitioner-Appellant at 68. He argues that

the jury was not informed about his mental disabilities and their

interaction with his drug abuse and that the jury was not given a proper

understanding of the sentence life without parole. We have considered

these claims in the context of his assertions of ineffective assistance of

counsel. We decline to consider sentence reliability as an independent

freestanding post-conviction claim. See Saylor v. State, 765 N.E.2d 535,

544 n.1 (Ind. 2002); Wrinkles, 749 N.E.2d at 1187 n.3; Allen v. State, 749

N.E.2d 1158, 1176 n.28 (Ind. 2001).

5. Incomplete, Unfair, and Biased Post-Conviction Relief Adjudication

(a) Use of State's Proposed Findings of Fact and Conclusions of Law

The defendant claims that he was denied a full, fair and unbiased

adjudication of his post-conviction claims when the post-conviction court

essentially adopted verbatim the proposed findings of fact and conclusions

of law submitted by the State. In Prowell v. State, 741 N.E.2d 704 (Ind.

2000), we acknowledged that a trial court’s verbatim adoption of a party’s

proposed findings may have important practical advantages and we expressly

declined to prohibit the practice. Id. at 708-09. We noted, however, that

the wholesale adoption of one party's findings results in an "inevitable

erosion of the confidence of an appellate court that the findings reflect

the considered judgment of the trial court." Id. at 709; see also

Wrinkles, 749 N.E.2d at 1188.

The sixty-five pages of findings and conclusions entered by the post-

conviction court are for the most part identical to the proposed findings

submitted by the State, but we note several differences. For example, the

post-conviction court added two sentences to one issue, a couple of

paragraphs to another, and corrected some of the misspellings. It is thus

evident that the court carefully considered and purposefully used of the

individual findings proposed by the State. The extensive findings of fact

and conclusions of law addressed all the claims delineated in his petition.

While near verbatim reproductions may appropriately justify cautious

appellate scrutiny, we decline to hold that the post-conviction court’s

utilization of the State’s proposed findings in the present case

constituted a failure to provide the defendant with a full, fair and

unbiased adjudication of his post-conviction claims.

(b) Failure to Recuse

Stevens claims his right to a full, fair and unbiased hearing was

also violated by the post-conviction judge refusing to recuse himself.

Judge Heid[10] presided over the post-conviction trial and also over the

original trial. The defendant sought the judge's recusal on grounds that

he intended to interview Judge Heid as a potential witness on the stun belt

issue. See Ind.Judicial Conduct Canon 3(E)(1).[11] Judge Heid denied the

motion, ruling that his testimony would be cumulative to the testimony of

counsel.

The defendant does not challenge Judge Heid's impartiality, but rather

he asserts that he was denied the opportunity to interview Judge Heid as a

potential witness, which hobbled his case. In denying the motion to

recuse, the trial court stated:

Well throughout the proceedings that were conducted here, the State

was represented by three attorneys and the defense was represented by

two attorneys and to the extent there were any conversations about

procedural issues or housekeeping matters that for some reason may not

have been recorded, I think all or almost all of those people were in

attendance. I know if there were discussions about security issues

the sheriff was in attendance with perhaps another deputy, and so I

think there's ample witnesses who can testify about those

conversations to the extent they took place without the requirement of

calling the trial judge as a witness to add cumulative, perhaps

cumulative testimony, and it seems however that the crux of this issue

comes down to why was the decision made not to object and whether it

was favorable or unfavorable to Mr. Stevens to have a stun belt rather

than some other kind of restraint and the thought process, those

decision making is – it's an internal process of the defense of which

the court had no knowledge or certainty wasn't privy to the defense

strategy in this matter and I would not be able to provide any helpful

information about how that decision came about or whether it was

favorable or unfavorable to the defendant. And also given the amount

of work that's been done in this case in preparing it to this point,

it's been pending since May of last year, and here we are ten days

from a week long trial, it just seems to me that this really isn't an

appropriate situation for me to recuse myself and have you start all

over with someone else in this case. So with due respect to your

motion here, I think it should be and it is denied. We'll go ahead

and I'll stay on the case.

Record at 952. We discern no error in the trial court's denial of the

defendant's motion to recuse.

Conclusion

We affirm the judgment denying the defendant's petition for post-

conviction relief.

SHEPARD, C.J., and SULLIVAN, BOEHM and RUCKER, JJ., concur.

-----------------------

[1] This opinion uses the designation "Record" to apply to the record

of the post-conviction proceedings. The original trial record is

designated as "Trial Record." "Supp. Record" refers to the supplemental

record of the post-conviction proceedings.

[2] Ind.Crim. Rule 24(B).

[3] Part of the reason for the delay was the determination of the

defendant's request that the hearing be ex parte. See infra Part 2(b).

[4] The defendant also faults his trial counsel for providing a copy

of Dr. Lennon’s report to the State prior to trial. We note, however, that

the report was provided in compliance with the trial court’s order that

“any reports from experts are to be submitted to the State sixty (60) days

in advance of trial.” Record at 299. On motion of the defense, the trial

court extended the deadline for the exchange of reports from experts to

July 19, 1994. Record at 343. The defense thereafter supplied the report.

[5] The post-conviction court concluded, in part:

With the benefit of hindsight, Petitioner's present counsel suggest

that trial counsel should have adopted the defense of mental disease

or defect (Ind.Code § 35-41-3-6) and should have presented psychiatric

evidence that Petitioner was unable to form the mens rea necessary to

commit intentional murder. However, if Petitioner had raised the

insanity defense, he would have opened the door to the admission of

incriminating evidence that was not presented during the guilty [sic]

phase of his trial. . . . Moreover, the facts of the crime itself

militate against insanity. . . . Against this backdrop, Dr. Coons's

testimony that, in his opinion, Petitioner's ability to appreciate the

wrongfulness of his conduct was "impaired" would have had little or no

effect on the jury's verdict, particularly in light of Dr. Coons's

acknowledgement that Petitioner could appreciate the wrongfulness of

his conduct when he took steps to hide Zachary's body.

Record at 713-718.

[6] Although Tippecanoe and Putnam County residents may receive some

overlapping Indianapolis media, the court found that Tippecanoe County has

its own daily newspaper and television station.

[7] During voir dire, defense counsel asked, "Mr. [Juror], anything

about life without parole that you either think is a good idea or a bad

idea in general?" Juror: "As an alternative to the death sentence you

mean?" Defense counsel: "Yes." Juror: "Well, I'd have to get an idea of

what you meant by life without parole. Is that truly life without …"

Defense counsel: "It means locked up. Yeah, that's what it means."

Juror: "Even 20 years from now, the rules aren't going to change?"

Defense counsel: "No. Well . . . [y]ou're the one that said you can't

predict the future as to whether you change your views on the death

penalty. I can't predict the future as to what the law is. Right now, the

law is life without parole is life without parole. . . . It means if a

person is sentenced to life without parole, they don't walk out ever

again." Record at 1825-27. Two jurors were seated from the panel who

witnessed this interchange, though the juror directly involved in the

discussion was excused.

[8] We recently described the nature and operation of the stun belt in

Wrinkles v. State:

The stun belt . . . is an electronic shocking device that is secured

around the wearer's waist. Two nine-volt batteries connected to

prongs that are attached to the wearer over the left kidney region

power the belt. The belt may be activated from as far away as 300

feet, and once activated it delivers an eight-second, 50,000-volt

shock that cannot be stopped. This high-pulsed electrical current

travels through the body along blood channels and nerve pathways. The

belt's electrical emission knocks down most of its victims, causing

them to shake uncontrollably and remain incapacitated for up to forty-

five minutes. Activation may also cause immediate and uncontrolled

defecation and urination, and the belt's metal prongs may leave welts

on the wearer's skin requiring as long as six months to heal.

Activation may cause some wearers to suffer heartbeat irregularities

or seizures. Manufacturers of the stun belt emphasize that the belt

relies on the continuous fear of what might happen if the belt is

activated for its effectiveness.

749 N.E.2d 1179, 1193-94 (Ind. 2001)(internal citations omitted).

[9] Ind.Evidence Rule 404(b) prevents the admission of evidence

regarding "uncharged misconduct" or "prior bad acts" to prove a person's

character.

[10] Judge George Heid died during the pending of this appeal.

[11] Indiana Judicial Conduct Canon 3(E)(1) provides:

(1) A judge shall disqualify himself or herself in a proceeding in

which the judge's impartiality might reasonably be questioned,

including but not limited to instances where:

. . . .

(b) . . . the judge has been a material witness concerning [the matter

in controversy].