Timberlake v. State

ATTORNEYS FOR APPELLANT

Eric K. Koselke

Ann M. Sutton

Special Assistants to the Public Defender of Indiana

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson

Attorney General of Indiana

Priscilla J. Fossum

James B. Martin

Deputy Attorneys General

Indianapolis, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

NORMAN TIMBERLAKE, )

)

Appellant (Petitioner Below), )

)

v. ) Indiana Supreme Court

) Cause No. 49S00-9804-PD-252

STATE OF INDIANA, )

)

Appellee (Respondent Below). )

__________________________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Steven Nation, Judge

Cause No. 49G02-9302-CF-14191

__________________________________________________________________

ON PETITION FOR POSTCONVICTION RELIEF

__________________________________________________________________

August 20, 2001

BOEHM, Justice.

Norman Timberlake was convicted of the murder of Indiana State

Trooper Michael Greene and of carrying a handgun without a license. He was

sentenced to death. He appeals the denial of his petition for

postconviction relief and raises four issues: (1) his competency during

trial, direct appeal, and postconviction relief; (2) ineffective assistance

of trial counsel; (3) ineffective assistance of appellate counsel; and (4)

bias of the postconviction court. We affirm the trial court’s denial of

postconviction relief.

Factual and Procedural Background

The facts of this case are reported in Timberlake v. State, 690

N.E.2d 243 (Ind. 1997). In brief, on February 5, 1993, Timberlake and

Tommy McElroy stopped on Interstate 65 to urinate. Master Trooper Michael

Greene pulled up behind them to investigate the car stopped on the

roadside. A radio check identified McElroy as a person wanted by the

police, and as Greene was handcuffing McElroy, Timberlake shot Greene.

Timberlake was caught shortly thereafter in a lounge and charged with

murder, escape, and carrying a handgun without a license. He was convicted

of murder and the handgun violation and was sentenced to death. This Court

affirmed his conviction and sentence on direct appeal. Timberlake, 690

N.E.2d at 250. After this Court issued its opinion, but before an order on

rehearing was issued, Judith Menadue, Timberlake’s appellate attorney,

questioned his competency and filed a motion to hold the appeal in

abeyance. This Court denied the motion and then denied rehearing.

Timberlake filed a petition for postconviction relief on December 7,

1998. After two recusals, Judge Steven Nation was appointed to hear the

case. At the time Judge Nation assumed the case, the postconviction court

had sua sponte ordered two experts to evaluate Timberlake’s competency, but

that process was not complete. Pursuant to Judge Nation’s direction, on

August 2, 1999, Timberlake filed a motion to determine his competency.

After doctors interviewed Timberlake, competency hearings were held on

September 15, September 29, and October 5, 1999. Judge Nation ruled

Timberlake competent. This Court denied a request to present that issue on

interlocutory appeal. The postconviction hearing was held on November 8,

9, 10, 12, and 15 and, on December 27, the postconviction court issued

Findings of Fact and Conclusions of Law denying relief. This appeal

ensued.

Standard and Extent of Review

Timberlake bore the burden of establishing the grounds for relief by

a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Because

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

turns on factual issues, Timberlake must convince this Court that the

evidence as a whole leads unerringly and unmistakably to a decision

opposite that reached by the postconviction court. Harrison v. State, 707

N.E.2d 767, 773 (Ind. 1999) (citing Spranger v. State, 650 N.E.2d 1117,

1119 (Ind. 1995)). We will disturb the decision only if the evidence is

without conflict and leads only to a conclusion contrary to the result of

the postconviction court. Id. at 774.

Postconviction 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 postconviction

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 postconviction proceeding.

Woods v. State, 701 N.E.2d 1208, 1215 (Ind. 1998). A claim of ineffective

assistance of appellate counsel is also an appropriate issue for

postconviction review. As a general rule, however, most free-standing

claims of error are not available in a postconviction proceeding because of

the doctrines of waiver and res judicata. Some of the same contentions, to

varying degrees, may be properly presented in support of a claim of

ineffective assistance of trial or appellate counsel. Because Timberlake’s

direct appeal raised a claim of ineffective assistance of trial counsel, we

address the issues Timberlake raises in this appeal primarily as claims of

ineffective assistance of his appellate counsel in presenting or omitting

issues bearing on his claim of ineffective trial counsel. We also address

those free-standing claims that are not barred by waiver or res judicata.

I. Competency

A. At Trial

Timberlake claims that he was incompetent during his initial trial

and, therefore, his convictions and sentence must be reversed. The

postconviction court held that this issue was waived because it was not

raised on direct appeal. The postconviction court also noted that, before

Timberlake was tried, two experts examined him and determined him to be

competent. The postconviction court found, “Petitioner has produced no

credible evidence that the conclusions reached by trial counsel’s experts

were wrong.”

We agree with the postconviction court that the issue of Timberlake’s

competency at trial was known and available on direct appeal and is

therefore not available as a freestanding claim in postconviction relief.

Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). In any event,

Timberlake has not established that he was incompetent at the time of

trial. For that reason, to the extent failure to present the competency

issue is presented here as appellate ineffectiveness, Timberlake does not

establish the prejudice prong of Strickland v. Washington, 466 U.S. 668,

687, 694 (1984). For the same reason, Timberlake does not fall into the

unusual category recognized in Tinsley v. State, 260 Ind. 577, 298 N.E.2d

429 (1973). In Tinsley, this Court ordered an evidentiary hearing on the

issue of defendant’s competency. The defendant first challenged his

competency in a post-trial motion to correct error. In support of that

motion the defendant submitted a finding of incompetency in a guardianship

proceeding. This Court found that “[i]n certain unique situations facts

coming to light only after the trial may be so significant and compelling

as to create ‘reasonable grounds’ to question a defendant’s competency at

the time of his trial and therefore require a hearing on the question.”

Tinsley’s “unique situation” is not presented here. Timberlake’s

competency was questioned by his trial counsel and Timberlake was examined

by two doctors who concluded he was competent. Nor was there a

contemporaneous finding of incompetency from another court.

To be competent at trial, a defendant must be able to understand the

nature of the proceedings and be able to assist in the preparation of his

defense. Ind. Code § 35-36-3-1 (1998); Brewer v. State, 646 N.E.2d 1382,

1384 (Ind. 1995). In this appeal Timberlake points to incidents from more

than ten years before his arrest, his conspiracy theories during his trial,

and post-trial medical testimony as evidence that he was incompetent at the

time of trial. The information about Timberlake’s competency both before

and after the trial is relevant but far from conclusive of his competency

at trial. Competency is not a static condition. Cf. I.C. § 35-36-3-1.

Given the contemporaneous findings of two doctors that he was competent at

the time of trial,[1] the postconviction court’s finding that Timberlake

has not established that he was incompetent at trial is more than amply

supported by the record, and Timberlake fails to establish prejudice in

counsel’s failure to present the issue on direct appeal.

B. On Direct Appeal

Timberlake also challenges his competency during the direct appeal.

As a preliminary matter, we note that it is not at all clear that

competency is required in a direct appeal. Cf. State v. White, 815 P.2d

869, 878 (Ariz. 1991), abrogated on other grounds by State v. Salazar, 844

P.2d 566 (Ariz. 1992); People v. Kelly, 822 P.2d 385, 414 (Cal. 1992);

People v. Newton, 394 N.W.2d 463, 466 (Mich. Ct. App. 1986), vacated on

other grounds by 399 N.W.2d 28 (Mich. 1987). The postconviction court made

findings on this issue as well. Specifically, the court found that

evidence of Timberlake’s questionable competence was discovered after his

appeal was decided, and, therefore, he had already assisted, as much as

possible, in his appeal. After the opinion on direct appeal was issued in

this case and while rehearing was pending, his appellate attorney, Menadue,

filed a motion to hold the appeal in abeyance based on her perception that

Timberlake was incompetent. At the time that this motion was filed, the

appeal had been decided after having been fully briefed for fifteen months.

That motion was denied by this Court.

We agree with the postconviction court that, even if competency is

required for a direct appeal, Timberlake has not shown that he was

incompetent at the relevant time. Menadue’s suspicions about Timberlake’s

competency were not raised until long after she had filed his appellate

briefs. Thus, even if Timberlake was unable to assist with his defense at

that time, the postconviction court was correct in concluding that this

presents no issue because the brief had already been filed and the issues

already raised. There was testimony from Dr. Gelbort, a psychologist, that

Timberlake was unable to assist in his defense at the time Menadue filed

her motion. But this claim, even if accepted, does not establish his

incompetency at the time his appeal was prepared and presented.

C. At the Postconviction Relief Proceedings

Timberlake’s postconviction counsel argue that mental illness

prevented Timberlake from rationally consulting with them, thus depriving

him of a fair postconviction proceeding.[2] Timberlake’s counsel filed a

motion to determine competency on August 2, 1999. Timberlake was examined

by several doctors and competency hearings were held on September 15,

September 29, and October 5, 1999. The postconviction court ruled that

Timberlake was competent to proceed. Timberlake sought to file an

interlocutory appeal and moved to stay the postconviction proceedings due

to incompetence. This Court denied both motions.

The claim of incompetence in a postconviction proceeding presents two

distinct issues: (1) whether Timberlake was “incompetent,” or unable to

assist his counsel in the preparation of his case and to understand the

nature of the postconviction proceedings, and (2) whether “competence,” as

that term is understood in cases addressing a defendant’s due process

rights at trial, is required in postconviction proceedings. The

postconviction court found against Timberlake on the first issue. Because

we agree that Timberlake’s mental state did not render him unable to

understand the nature of the proceedings and assist in his defense, we

affirm the trial court’s ruling on this point. We therefore leave for

another day the State’s plausible contention that competency is not

required for postconviction proceedings. We observe, however, that it

surely is not an inflexible requirement. It cannot be the case that in all

circumstances an improperly convicted person has no remedy because of his

incompetence. Cf. Jackson v. Indiana, 406 U.S. 715 (1972), rev’g Jackson

v. State, 253 Ind. 487, 255 N.E.2d 515 (1970).

The postconviction court did not address the second issue, but

determined there was “[e]xtensive evidence . . . heard on this [first]

issue, and Petitioner was found competent to pursue post-conviction

relief.” His counsel report that Timberlake says there is a machine that

is able to monitor his words and thoughts and has been used to kill other

prisoners.[3] According to his attorneys, Timberlake believes this machine

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 the machine. His counsel contend that Timberlake’s

belief results from a mental disease that causes him to see the world only

through a deluded version of reality.

The postconviction court applied the familiar standard for trial

competency—the ability to understand the nature of the proceedings and

assist in the preparation of his defense—as the standard for competency to

pursue postconviction relief. See I.C. § 35-36-3-1(a); Brewer, 646 N.E.2d

at 1384. The court then held multiple hearings on the issue and heard from

four experts: Drs. Masbaum, Deaton, Crane, and Ochberg. All four found

that Timberlake understood the nature of the proceedings. Two of the

doctors, Masbaum and Crane, determined that, although Timberlake suffered

from delusions, he was competent to assist in his own defense. The other

two, Deaton and Ochberg, felt that Timberlake was delusional and could not

cooperate or work adequately with postconviction counsel. After hearing

all the evidence, the postconviction court determined that Timberlake was

competent and made detailed findings as to Timberlake’s competence.[4]

These included:

g. That the Court finds by its own observations that the Petitioner

was able to conduct himself in an appropriate manner and was able to

understand and comply with the commands and requests of the Court

during the Court proceedings. Such observations by the Court were

consistent with the psychiatric testimony presented in the cause.

Further, the Court finds that Petitioner was able to understand and

follow the commands and requests of the Bailiffs and/or Police

Officers during Court proceedings. Finally, as set forth in the

psychiatric testimony, the Court finds that the Petitioner was able to

understand and comply with commands or requests of his counsels [sic].

h. That the Petitioner has shown an extensive knowledge and memory of

the proceedings and has also demonstrated that he is well versed in

the law. He is very exacting that statements found in pleadings and

statements in the courtroom be correct.

. . . .

i. Court finds that the Petitioner understands that he has been

convicted of a capital crime, that he was not successful on the appeal

of such conviction and that these proceedings are his last attempt to

review this case, and if he is not successful in this proceeding or if

necessary upon appeal, he will be executed.

Because Timberlake has not established that the evidence unmistakably

points to a contrary conclusion, he cannot prevail on this claim.

We conclude that the postconviction court’s ruling on Timberlake’s

competency is supported by this record, though no single item is

conclusive. It seems clear that Timberlake was able to understand the

nature of the proceedings against him.[5] Second, although Timberlake may

not have cooperated with his lawyers when he disagreed with their

strategies, he has not established that he was unable to assist in his own

defense. We have no basis to dispute his attorneys’ contention that he

was, and presumably is, an extremely difficult client. Nevertheless,

counsel were able to converse with him and provide an adequate

postconviction review of his convictions and sentence. Timberlake’s

postconviction counsel conducted a five-day hearing with thirty-two

witnesses and forty-eight exhibits. Some of these issues were those that

Timberlake was concerned about in a list of potential grounds for

postconviction relief. Timberlake even participated in some of the

questioning by, for example, writing questions for his counsel to ask

witness McElroy. Although medical opinion was divided on this point, two

doctors also testified that Timberlake could assist in his own defense.

In sum, although Timberlake was difficult and had outbursts, he was

also able to understand the nature of the proceedings and assist his

counsel and the court when need be. Given the evidence from the doctors

that Timberlake satisfied the trial competency standard, the almost one

thousand pages of the evidence on Timberlake’s present medical state, the

postconviction court’s own observations and discussions, and the deference

we give to a trier of fact’s determination of competency, we cannot say

that the facts point unswervingly toward a result opposite the one reached

by the postconviction court. See Matheney v. State, 688 N.E.2d 883, 893

(Ind. 1997).

II. Ineffective Assistance of Trial Counsel

For several reasons, Timberlake argues that this Court should revisit

the issue of trial counsel ineffectiveness that was addressed in the direct

appeal. Timberlake, 690 N.E.2d at 259-61. First, Timberlake argues that

some instances of trial counsel ineffectiveness were not raised in the

direct appeal and are therefore not barred by res judicata and must be

addressed now.

This issue was recently addressed by this Court in Ben-Yisrayl v.

State, 738 N.E.2d 253, 259 (Ind. 2000):

In Woods, we held that a defendant may raise a claim of

ineffective assistance of trial counsel for the first time in a post-

conviction proceeding, but we emphasized that once the defendant

chooses to raise his claim of ineffective assistance of trial counsel

(either on direct appeal or post-conviction), he must raise all issues

relating to that claim, whether record-based or otherwise. 701 N.E.2d

at 1220. A defendant who chooses to raise on direct appeal a claim of

ineffective assistance of trial counsel is foreclosed from

relitigating that claim. Id. (“[I]neffective assistance of trial

counsel is not available in post-conviction if the direct appeal

raises any claim of deprivation of Sixth Amendment right to

counsel.”). See also Bieghler v. State, 690 N.E.2d 188, 200-01 (Ind.

1997) (“Some of the [defendant’s arguments on post-conviction appeal]

are new arguments about aspects of trial counsel’s performance we

considered on direct appeal; others focus on aspects not mentioned

earlier. In either case, the earlier ruling that trial counsel was

not ineffective is res judicata.”); Sawyer v. State, 679 N.E.2d 1328,

1329 (Ind. 1997) (“[The defendant], having once litigated his Sixth

Amendment claim concerning ineffective assistance of counsel, is not

entitled to litigate it again, by alleging different grounds.”);

Morris v. State, 466 N.E.2d 13, 14 (Ind. 1984) (“Notwithstanding the

fact that petitioner gave several additional examples of his counsel’s

alleged ineffectiveness during the post-conviction hearing, a

consideration of the ineffectiveness issue would constitute review of

an issue already decided on direct appeal.”).

In his direct appeal, Timberlake raised, and this Court considered and

rejected, a claim of ineffective assistance of trial counsel. Timberlake,

690 N.E.2d at 259-61. Res judicata thus bars him from relitigating this

issue in postconviction proceedings. The postconviction court erred as a

matter of law in considering the merits of the defendant’s claim directly

challenging trial counsel’s effectiveness.

Second, Timberlake claims that trial counsel ineffectiveness should

be revisited because “the initial decision was clearly erroneous.” Because

he does not explain how this Court’s decision was clearly erroneous, or

present a cogent argument as to how this case presents the “extraordinary

circumstance” where “the initial decision was clearly erroneous and would

work [a] manifest injustice” necessary to avoid res judicata, this claim is

waived. Former Ind. Appellate Rule 8.3(A)7 (now App. R. 46(A)8); Conner v.

State, 711 N.E.2d 1238, 1247 (Ind. 1999).

Third, Timberlake claims that trial counsel worked on the direct

appeal and, therefore, the question of trial counsel’s ineffectiveness

should have been postponed for postconviction relief and is now available.

For the reasons given in Part III of this opinion, counsel in the direct

appeal were not under an impermissible conflict of interest in raising this

claim and appellate counsel’s decision to raise trial counsel ineffective

assistance of counsel was not deficient performance. Therefore, this

argument fails as well.

III. Ineffective Assistance of Appellate Counsel

Timberlake claims that his appellate counsel was ineffective for

raising trial counsel ineffective assistance of counsel on direct appeal

when several of the instances of trial counsel ineffectiveness needed

information outside of the record and should have been preserved for

postconviction relief. Otherwise stated, he contends that Menadue

unreasonably took the risk of precluding undeveloped claims that remained

and also raised claims that were not supported by the record. He also

raises claims based on issues that were addressed on direct appeal,

apparently challenging the appellate presentation of these issues.

A. The Elements of Appellate Ineffectiveness

A defendant claiming a violation of the right to effective assistance

of counsel must establish the two components set forth in Strickland v.

Washington, 466 U.S. 668 (1984); accord Williams v. Taylor, 529 U.S. 362,

390-91 (2000). First, the defendant must show that counsel’s performance

was deficient. Strickland, 466 U.S. at 687. This requires a showing that

counsel’s representation fell below an objective standard of

reasonableness, id. at 688, and that the errors were so serious that they

resulted in a denial of the right to counsel guaranteed the defendant by

the Sixth Amendment, id. at 687. Second, the defendant must show that the

deficient performance prejudiced the defense. Id. To establish prejudice,

a defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have

been different. Id. at 694. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id.

Counsel is afforded considerable discretion in choosing strategy and

tactics, and we will accord those decisions deference. Id. at 689. A

strong presumption arises that counsel rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment. Id. at 690. The Strickland Court recognized that even the

finest, most experienced criminal defense attorneys may not agree on the

ideal strategy or the most effective way to represent a client. Id. at

689. Isolated mistakes, poor strategy, inexperience, and instances of bad

judgment do not necessarily render representation ineffective. Bieghler v.

State, 690 N.E.2d 188, 199 (Ind. 1997); Davis v. State, 598 N.E.2d 1041,

1051 (Ind. 1992); Ingram v. State, 508 N.E.2d 805, 808 (Ind. 1987). The two

prongs of the Strickland test are separate and independent inquiries.

Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice . . . that course should be

followed.” Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting

Strickland, 466 U.S. at 697).

This Court has recognized three categories of alleged appellate

counsel ineffectiveness: (1) denying access to an appeal, (2) failing to

raise issues, and (3) failing to present issues competently. Bieghler, 690

N.E.2d at 193-95. When the claim of ineffective assistance is directed at

appellate counsel for failing fully and properly to raise and support a

claim of ineffective assistance of trial counsel, a defendant faces a

compound burden on postconviction. The postconviction court must conclude

that appellate counsel’s performance was deficient and that, but for the

deficiency of appellate counsel, trial counsel’s performance would have

been found deficient and prejudicial. Thus, Timberlake’s burden before the

postconviction court was to establish the two elements of ineffective

assistance of counsel separately as to both trial and appellate counsel.

Ben-Yisrayl v. State, 738 N.E.2d 253, 261-62 (Ind. 2000).

B. Timberlake’s Claims

As a preliminary matter, Timberlake’s claim of ineffective assistance

of appellate counsel appears to consist of several parts and subparts: (1)

appellate counsel was ineffective for raising trial counsel ineffectiveness

in the direct appeal (a) by reason of participation of trial counsel in the

appeal and (b) for having raised the issue at all; (2) appellate counsel

was ineffective in raising shortcomings of trial counsel in the guilt phase

by either (a) not raising claims or (b) not adequately supporting them; and

(3) appellate counsel was ineffective in presenting trial counsel’s errors

in the penalty and sentencing phases, either by (a) not raising claims or

(b) not adequately supporting them.

1. Appellate Ineffectiveness for Raising Ineffective Assistance of

Trial Counsel

Timberlake first claims that appellate counsel was ineffective for

raising trial counsel’s ineffectiveness on direct appeal because one of the

trial attorneys, Ellen O’Connor, was also appellate counsel. Timberlake

claims that this created a conflict of interest that requires review of

this contention under the standard set forth in Cuyler v. Sullivan, 446

U.S. 335 (1980), for claims of conflicted counsel. The postconviction

court found, “Trial counsel Ellen O’Connor was originally appointed as co-

counsel because of her relationship with Petitioner, but Menadue asked

O’Connor to withdraw her appearance, which O’Connor did, before the briefs

were written. O’Connor did not participate in the writing or review of the

appellate briefs.” Although O’Connor’s motion to withdraw was denied by

this Court, the postconviction court’s finding of no actual conflict of

interest is supported by testimony from both Menadue and O’Connor that

O’Connor did not write or review the appellate brief. That finding is not

clearly erroneous and eliminates the factual predicate of this contention.

Timberlake also argues that appellate counsel was ineffective for

raising three grounds of trial counsel ineffective assistance of counsel in

the direct appeal: (1) failure to confront McElroy with evidence

challenging his credibility, (2) failure to present mitigation evidence at

the penalty phase, and (3) failure to present and argue mitigation at the

sentencing phase. He argues that these claims should have been preserved

for postconviction because there was not an adequate record on direct

appeal to establish prejudice. The postconviction court did not directly

address this contention, but observed that Timberlake argued that these

claims of ineffective trial assistance were raised on appeal “without

sufficient investigation.”

To prevail on this claim, Timberlake must show not only that appellate

counsel performed deficiently by raising these claims on direct appeal, but

also that evidence established in postconviction relief would have proved

trial counsel’s ineffectiveness. Because Timberlake has failed to

establish deficient performance by his appellate counsel, he has not

satisfied his burden.

At the time of Timberlake’s direct appeal, Woods v. State, 701 N.E.2d

1208 (Ind. 1998), had not been decided. Appellate counsel Menadue

testified that the case law in Indiana was “not crystal clear” as to when

ineffective assistance of trial counsel should be raised. Indeed, in Woods

we acknowledged this ambiguity: “Despite the frequency with which

challenges to the effectiveness of trial representation appear in

postconviction petitions in this State, this Court has not conclusively

resolved whether waiver of this claim (1) always arises from a failure to

raise it on direct appeal, or (2) never does, or (3) turns on whether there

was or might have been a need for extrinsic evidence to assess either

attorney competence or prejudice.” Id. at 1213. Menadue testified in

postconviction relief that she concluded that she was required to raise the

trial counsel ineffectiveness claims that appeared on the face of the

record or risk waiver of these claims. Menadue raised the issue of trial

counsel ineffective assistance of counsel on direct appeal after

consultation with Timberlake’s trial counsel and investigation staff and

several other attorneys. She faced the choice of either raising the claims

on direct appeal without the benefit of extensive extra-record research or

risking waiver. Although in hindsight, her decision may not have been the

best one, that is not the standard by which we evaluate her actions. As

this Court has stated, “Judicial scrutiny of counsel’s performance is

highly deferential and should not be exercised through the distortions of

hindsight.” Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995). Judged

by this standard, Menadue’s decision did not fall below an objective

standard of reasonableness.

2. Appellate Ineffectiveness as to Guilt Phase Claims

a. Failure to Present Evidence, Argument, or Instructions on

Intoxication

Timberlake also argues that appellate counsel was ineffective for

failing to raise trial counsel’s ineffectiveness for not pursuing an

intoxication defense. The postconviction court addressed this as an issue

of trial counsel ineffective assistance of counsel and found that trial

counsel was not ineffective for failing to pursue an intoxication defense

because it was inconsistent with Timberlake’s principal claim that he was

not the shooter. Moreover, there was evidence that Timberlake drank both

before and after the shooting, making any conclusions about his

intoxication level at the time of the murder highly speculative.

Appellate counsel did not raise this issue on appeal. Therefore, this

claim is reviewed as a Bieghler type two issue, that is, failure to present

an issue. This Court has noted several times the need for a reviewing

court to be deferential to appellate counsel on this issue:

[T]he reviewing court should be particularly sensitive to the need for

separating the wheat from the chaff in appellate advocacy, and should

not find deficient performance when counsel’s choice of some issues

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

precedent available to counsel when that choice was made.

Bieghler, 690 N.E.2d at 194. This Court has approved of the two-part test

used by the Seventh Circuit to evaluate these claims: (1) whether the

unraised issues are significant and obvious from the face of the record and

(2) whether the unraised issues are “clearly stronger” than the raised

issues. Id. (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).

Otherwise stated, 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, 738

N.E.2d at 260-61.

Menadue filed a 154-page brief and raised twenty-eight issues. She

thoroughly reviewed the record and interviewed trial counsel and other

members of Timberlake’s legal team before choosing what issues to raise on

appeal. She was not deficient for failing to raise this issue because it

was neither significant nor carried a reasonable probability of success.

Although there was evidence that Timberlake was intoxicated at the time of

the murder, he has not established that this defense would have had a

reasonable probability of success at trial. Under the law at the time, in

order to succeed on a defense of voluntary intoxication, the intoxication

had to be so severe as to preclude the defendant’s ability to form the

requisite mens rea. Ferguson v. State, 594 N.E.2d 790, 792 (Ind. 1992).

Evidence that the defendant could plan, operate equipment, instruct the

behavior of others, carry out acts requiring physical skill, disengage and

leave the scene, and find his way to a friend’s home seeking aid show that

his intoxication was not so great as to relieve him from responsibility for

his acts. Id. (citing Hughett v. State, 557 N.E.2d 1015, 1017-18 (Ind.

1990)). Here, Timberlake was able to shoot Greene, flee the scene of the

crime, and then phone for assistance. There was no reasonable probability

that the defense would have succeeded at trial.[6]

Timberlake’s argument fails for a second reason as well. We think it

is clear that trial counsel was not deficient for failing to raise

Timberlake’s intoxication at the guilt phase. Timberlake’s defense was

that McElroy did the shooting. Trial counsel’s decision not to pursue a

voluntary intoxication defense was a reasonable professional decision to

avoid seemingly inconsistent defenses. Because trial counsel was not

deficient, appellate counsel cannot be deficient for failing to raise this

issue.

b. Failure to Raise Trial Counsel’s Cross-Examination of Hood

Timberlake also challenges the handling of State witness Roy Hood.

Hood was a passing motorist who claimed to have seen a man fitting

Timberlake’s description shoot Greene. Before trial, Hood made several

inconsistent statements about the incident. At the postconviction relief

proceeding, Hood testified that when he saw Greene, he had already been

shot. Also, at the postconviction relief hearing, a coworker of Hood’s

testified that Hood had told specific lies to him and was a liar with a bad

reputation in the community. The postconviction court again addressed this

issue only in terms of ineffective assistance of trial counsel: “[T]rial

counsel was intimately familiar with the State’s case and witnesses and

many—if not all—significant witnesses were deposed by trial counsel.

Petitioner cannot show that trial counsel performed deficiently in this

regard.”

Because appellate counsel did not raise this issue on appeal, it again

presents a Bieghler type two issue. Therefore, Timberlake 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, 738 N.E.2d at 260-61. This issue does

not appear to be a significant and obvious one. In any event, it would not

have established trial counsel ineffectiveness. Although Hood was not

questioned at trial about all the inconsistencies discovered by

postconviction investigation, trial counsel did cross-examine Hood on

several discrepancies in his statements. As we noted in the direct appeal:

“As defendant made clear during his cross-examination of Hood, there were

inconsistencies. However, the basic points of his testimony remained the

same and were corroborated by others.” Timberlake, 690 N.E.2d at 253 n.1.

We cannot say that the postconviction evidence unmistakably and unerringly

points to a conclusion contrary to the postconviction court’s on the issue

of trial counsel’s performance in this respect. Furthermore, Timberlake

has not established that appellate counsel was deficient based on the

information available to her—which did not include information on Hood’s

reputation for dishonesty—at the time of the direct appeal. Because

Timberlake has established neither deficient performance nor prejudice on

this point at the trial level, this issue was not an obvious one which

appellate counsel was deficient for failing to raise.

c. Inadequate Presentation of Trial Counsel’s Cross-Examination of

McElroy

Timberlake claims that appellate counsel ineffectively raised trial

counsel’s ineffectiveness in failing to cross-examine McElroy. Menadue

challenged trial counsel’s handling of McElroy, Timberlake, 690 N.E.2d at

260, but Timberlake now claims that she was ineffective in her handling of

this claim because the postconviction record established that McElroy was

under the influence of anti-psychotic drugs, was undergoing counseling, and

had been threatened with the death penalty, all of which may have affected

his perceptions on the day of the shooting and were not presented in her

claim of trial counsel ineffective assistance of counsel. The

postconviction court found this claim to be res judicata as to trial

counsel ineffective assistance of counsel and did not address it as to

appellate ineffective assistance of counsel.

This claim asserts a type three Bieghler error. This Court observed

that “[c]laims of inadequate presentation of certain issues, when such were

not deemed waived in the direct appeal, are the most difficult for convicts

to advance and reviewing tribunals to support.” Bieghler, 690 N.E.2d at

195 (emphasis in original). These claims are reviewed under the highest

standards of deference to counsel’s performance and relief will be awarded

only where “the appellate court is confident it would have ruled

differently.” Id. at 196.

We do not believe that Timberlake has established either prong of the

Strickland test with respect to this claim. Menadue’s failure to include

evidence of McElroy’s medications in her challenge to trial counsel’s

handling of his cross-examination does not rise to the level of deficient

performance given the role and function of appellate counsel on direct

appeal. First, Menadue cannot “be measured by information unknown to

appellate counsel but later developed after the appeal by post-conviction

counsel.” Ben-Yisrayl, 738 N.E.2d at 261. Second, McElroy was questioned

extensively at trial and at postconviction and his version of events never

changed with respect to his identification of Timberlake. Timberlake, 690

N.E.2d at 252 (“McElroy did not waver in his identification of defendant as

the shooter, nor was his testimony unsupported by other witnesses or

circumstantial evidence. The jury was aware of the inconsistencies and was

faced with the responsibility of judging the credibility of the witnesses

and determining what occurred.”). Finally, the record challenging this

omission does not establish a reasonable probability that McElroy’s

perception was clouded.[7] The postconviction evidence therefore does not

establish a reasonable probability of a different result. Because

Timberlake did not establish trial counsel ineffectiveness on this point,

he cannot establish that appellate counsel was ineffective for inadequate

presentation of this issue.

3. Appellate Counsel’s Failure to Raise Trial Counsel’s

Ineffectiveness as to Penalty Phase Claims

Timberlake also challenges appellate counsel’s handling of trial

counsel’s performance during the penalty and sentencing phases.

a. Failure to Present Evidence, Argument, or Instructions on

Intoxication

Timberlake first argues that appellate counsel was ineffective for

failing to raise trial counsel’s ineffectiveness in not presenting any

evidence, argument, or instructions on intoxication at the penalty and

sentencing phases. Although the postconviction court did not address the

intoxication issue specifically, it did note that appellate counsel was not

ineffective for failing to raise eighteen specific claims of ineffective

assistance of trial counsel because Timberlake cannot show that these

alleged errors of trial counsel denied him a fair trial.

This claim was not raised in the direct appeal, and is thus a Bieghler

type two issue. As we noted earlier, reviewing courts are particularly

deferential to appellate counsel’s decisions on what issues to raise.

Using the two-part test from Bieghler, it is clear that although the issue

of intoxication was obvious from the face of the record, it is not clearly

stronger than the issues raised by appellate counsel. Menadue raised

twenty-eight issues in her appellate brief, including that trial counsel

was ineffective at all three phases of the trial. She also raised four

instances of ineffectiveness in the guilt phase, including trial counsel’s

failure to present mitigation evidence. Although intoxication may be a

mitigating factor, this Court does not require it to be considered. See

Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997). As already noted,

Timberlake was able to fire a gun, escape, and place a telephone call for

help. We cannot say that it was unreasonable to raise the arguments that

were presented in lieu of a claim of trial ineffectiveness based on

inadequate presentation of intoxication as mitigation.

b. Appellate Counsel’s Handling of Trial Counsel’s Failure to Present

Any Mitigation Evidence at Penalty Phase

Timberlake claims that appellate counsel ineffectively presented trial

counsel’s ineffectiveness for failure to present mitigation evidence at the

penalty phase. Specifically, Timberlake claims that trial counsel was

ineffective for failing to subpoena any witnesses for the penalty phase and

for failing to present expert witnesses, and that this led to the

presentation of no mitigation evidence.

Menadue raised this issue in the direct appeal and this Court

concluded that trial counsel “may have reasonably concluded that to argue

any mitigation evidence would be ineffective and would open the door to

damaging rebuttal.” Timberlake, 690 N.E.2d at 261. The postconviction

court, in addressing this issue as one of trial counsel ineffectiveness,

stated that “[t]here can be no question that trial counsel also conducted a

proper mitigation investigation[,] effectively investigated the strength of

the State’s request for the death penalty[,] and presented the most

appropriate defense to that request, given the facts of the Petitioner’s

crime and his lengthy criminal history.”

Under the deferential standard of review of this claim, Timberlake has

failed to establish his claim of appellate counsel ineffective assistance

of counsel for two reasons. First, he has not established that Menadue’s

handling of the issue on direct appeal was deficient. From the information

known to Menadue and available in the record, she cannot be deficient for

failing to contend that the lack of subpoenas was the cause of the

deficient performance. This information only became available in

postconviction relief, and, thus, is not relevant to her performance.

Furthermore, because the lack of mitigation evidence was ascertainable from

the record, Menadue did not err in raising this issue on direct appeal.

See Part III.A.

Second, Timberlake has not established that there was prejudice from

trial counsel’s failure to present mitigation evidence and, therefore, any

prejudice from appellate counsel’s performance. The death penalty

aggravator in this case is Indiana Code section 35-50-2-9(b)(6), the

killing of a police officer in the course of duty. As we have previously

noted,

The killing of a police officer in the course of duty is a most

serious crime. Police officers routinely risk their lives in the

sometimes high stakes gamble of protecting society. They do a job

that we all want and need done, though few of us possess the bravery

and skill to do. They ask for little in return, but they do ask for

some protection. The General Assembly recognized this in enacting the

statutory aggravator of Indiana Code § 35-50-2-9(b)(6). The

seriousness of this aggravator is magnified in the present case due to

defendant’s use of such deadly force to kill an unaware and

unsuspecting police officer in an otherwise nonviolent and ordinary

arrest.

Lambert v. State, 675 N.E.2d 1060, 1066 (Ind. 1996) (citations omitted).

Although trial counsel could have presented evidence of Timberlake’s

difficult childhood and substance abuse problems, this evidence has

previously been held to be not very weighty. See Coleman v. State, 741

N.E.2d 697, 700 (Ind. 2000); Peterson v. State, 674 N.E.2d 528, 543 (Ind.

1996). In this case, Timberlake shot a police officer for no apparent

reason after the officer had allowed Timberlake to go free. This situation

is, if anything, more egregious than Lambert, where the defendant had been

arrested by the police officer he killed. Furthermore, Timberlake’s

mitigation evidence was that his family was poor, his parents were

alcoholics, and Timberlake had a problem with alcohol. Although

Timberlake’s father was physically abusive, the evidence is not nearly as

disturbing as that presented in Coleman.[8] As in this case, Coleman’s

counsel presented no mitigating evidence, but relied instead on a general

religious and moral argument against the death penalty and a request for

mercy. We concluded that:

Taking into consideration all the evidence, both presented and

omitted, and our previous holdings that a difficult childhood carries

little mitigating weight, we conclude that it is extremely unlikely

that the sentencing result would have been different had Coleman’s

trial counsel presented credible evidence of Coleman’s childhood abuse

and neglect. Because we find no reasonable probability that Coleman

would have avoided a death sentence based on the omitted evidence,

Coleman’s claim of IAC at the penalty and sentencing phase of his

trial fails under the second prong of Strickland.

Coleman, 741 N.E.2d at 703.

Given the minor weight of the mitigators and the aggravator present in

this case, there is not a reasonable probability that the jury would have

found the mitigators to outweigh the very weighty aggravator. Because

appellate counsel was not deficient and there was no trial court prejudice,

Timberlake fails on this claim.

c. Failure to Present Any Mitigation Evidence at Sentencing Phase

Timberlake also challenges appellate counsel’s presentation of trial

counsel’s failure to present mitigation evidence in the sentencing phase.

Appellate counsel raised this issue on direct appeal, and for the same

reasons discussed above in Part III.B.3.b, Timberlake fails on this claim

as well.

IV. Postconviction Court Bias

Finally, Timberlake claims that he was deprived of his due process

right to a fair and disinterested tribunal because of bias on the part of

Judge Nation.

The law presumes that a judge is unbiased and unprejudiced. In re

Edwards, 694 N.E.2d 701, 711 (Ind. 1998); Smith v. State, 535 N.E.2d 1155,

1157 (Ind. 1989). Our Judicial Code provides that when a judge’s

impartiality might be reasonably questioned because of personal bias

against a defendant or counsel, a judge is to recuse himself. Ind.

Judicial Conduct Canon 3(E)(1)(a); accord Edwards, 694 N.E.2d at 710. The

test for determining whether a judge should recuse himself or herself under

Judicial Canon 3(E)(1) is whether “an objective person, knowledgeable of

all the circumstances, would have a reasonable basis for doubting the

judge’s impartiality.” Edwards, 694 N.E.2d at 711. Timberlake has not

satisfied this test.

A. Ex Parte Communications

Timberlake argues that Judge Nation engaged in an ex parte

communication with Dr. Masbaum, an expert witness, in violation of Judicial

Canon 3(B)(8). Generally, the Code of Judicial Conduct prohibits a judge

from engaging in ex parte conversations that relate to pending proceedings.

Jud. Canon 3(B)(8); accord Bell v. State, 655 N.E.2d 129, 131 (Ind. Ct.

App. 1995). An exception to this general rule is found under Judicial

Canon 3(B)(8)(a), which permits ex parte communications for scheduling,

administrative purposes, or emergencies that do not deal with substantive

matters of a pending case. Under this exception, the judge must: (1)

reasonably believe that no party will gain a procedural or tactical

advantage and (2) promptly notify all other parties of the substance of the

ex parte communication and allow an opportunity to respond. James v.

State, 716 N.E.2d 935, 940-41 (Ind. 1999).

On September 28, 1998, Masbaum conducted an initial examination of

Timberlake. On August 30 and September 2, 1999, Timberlake filed

objections to the participation of Masbaum. Judge Nation contacted Masbaum

and informed him of the objections against him[9] and provided Masbaum with

a copy of these proceedings. These objections were discussed in a hearing

on September 2, and were overruled. In an order on that hearing, Judge

Nation stated:

The Petitioner’s request to exclude Dr. Masbaum as a Court appointed

psychiatrist is hereby denied on the grounds that there has been

insufficient evidence presented to this Court to show any impropriety

which may exclude Dr. Masbaum from such examination. The Court

advised the parties that Court staff will contact Dr. Masbaum to

determine whether he would wish to serve in such capacity and the

parties should be advised that Dr. Masbaum has agreed to continue as

the Court appointed psychiatrist.

During Masbaum’s second interview with Timberlake he determined that

Timberlake was competent. Timberlake claims that the trial judge’s ex

parte communications with Masbaum prejudiced him because they led to a

different diagnosis.

Judge Nation’s communication with Masbaum falls under the ministerial

exception to the bar on ex parte communications. Under the James test,

Judge Nation reasonably believed that neither side gained a tactical

advantage and notified both parties of the communications. Therefore, this

communication does not present a reasonable basis for doubting Judge

Nation’s impartiality.

B. Interference in Attorney-Client Relationship

Timberlake also alleges that Judge Nation was biased and damaged the

attorney-client relationship between Timberlake and his counsel. As

examples of how Judge Nation “damaged the attorney-client relationship,”

Timberlake points to the trial judge’s handling of the competency issue,

comments to Timberlake, and allowing evidence of the machine to be admitted

and discussed. As a preliminary matter, we note that Timberlake cites no

authority for this proposition. Turning to the first allegation,

Timberlake contends that Judge Nation undermined Timberlake’s confidence in

his attorneys by requiring them to raise the competency issue. It appears

that Judge Nation handled the issue as he did because he believed it was

the correct legal procedure. Client disagreements with counsel often arise

as a result of court rulings. We see no basis for a claim that the judge

attempted to interfere with Timberlake’s attorney-client relationship.

Judge Nation’s handling of Timberlake, including comments about

Timberlake’s understanding of events and investigation of the machine, also

do not support his claim of bias. Judge Nation appears to have done his

best to deal with a difficult defendant and to ensure that his rights were

being protected.

None of the claimed actions by Judge Nation are responsible for a

breakdown in the attorney-client relationship or constitute proof of bias.

In fact, when ruling on Timberlake’s counsel’s motion to withdraw, the

trial judge praised postconviction counsel: “I know that he is a difficult

client, in that, he has a strong opinion as to what he feels needs to be in

the record or what witnesses need to be called. It’s obvious that you

disagree with him concerning some of these directions. But from the

standpoint of the Court, I think you’re very—both of you are very good

counsel.” Timberlake has not established that there was a reasonable basis

for challenging Judge Nation’s impartiality.

C. Refusal to Medicate

Finally, Timberlake claims that Judge Nation was biased when he

refused to order any medication for Timberlake. Timberlake’s counsel filed

a motion requesting that he be treated. Judge Nation denied this request.

Timberlake claims that this denial illustrates the judge’s bias against

Timberlake in light of the medical evidence that Timberlake was psychotic.

As a preliminary matter, we again note that Timberlake cites no

authority for this proposition. Judge Nation held a lengthy hearing on the

issue of Timberlake’s competency and then determined that Timberlake was

competent to proceed without medical treatment. Timberlake himself stated

several times that he wanted no medication. Because we cannot say that

this finding is clearly erroneous, see Part I, Judge Nation’s decision to

deny medication does not appear to reasonably question his impartiality.

Conclusion

The judgment of the postconviction court is affirmed.

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

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

[1] Although Timberlake now challenges these findings as “unreliable,” he

does not carry his burden of establishing that they were incorrect. Two

doctors testified at the postconviction proceedings. One doctor called the

findings of the reports created before the trial “suspect.” Another

testified that the reports could not be analyzed without viewing the raw

data used to create them. As the postconviction court found, this

testimony, even if fully accepted, does not establish Timberlake’s

incompetency at trial.

[2] Postconviction counsel also argue that they “were unable to

investigate, prepare, and present any type of cogent postconviction

petition on behalf of Mr. Timberlake.” To the extent this is an argument

concerning Timberlake’s competency, it is addressed below. To the extent

it is an argument concerning counsel’s own ineffectiveness, it cannot be

raised. Etienne v. State, 716 N.E.2d 457, 463 (Ind. 1999).

[3] The postconviction court found that “[t]here is no machine that

monitors Petitioner’s mind and/or controls his thoughts.”

[4] The final findings were in significant part adopted from the State’s

proposed findings, but the record does not suggest this is true of the

findings as to competency.

[5] All four doctors agreed on this point. This can also be seen from

Timberlake’s activities. The issues he discussed as potential grounds for

postconviction relief demonstrated that Timberlake understood the nature of

the proceedings and could assist his attorneys. Although his list

contained numerous references to the machine, Timberlake also challenged

appellate counsel’s focus on his sentencing when he believed that the guilt

phase was more important. He identified issues with the cross-examination

of McElroy. As one of the doctors observed, Timberlake understood who his

attorneys were and expressed dissatisfaction with one of them, understood

that there had been a judge change, and had a file full of legal documents

pertaining to his situation. The postconviction court observed that

Timberlake, although occasionally unruly, was generally able to follow

commands and conduct himself in court. Several times throughout the

proceedings, Timberlake discussed the case and took note of the relevant

proceedings, including that his competency has been decided four times.

[6] Timberlake also argues that “intoxication could have served as a

defense to the mental state required to make [his] murder conviction

eligible for the death penalty.” His death penalty eligibility was based

on killing an officer acting in the course of duty. For the same reasons a

defense of intoxication would have failed under the circumstances of this

case, there is not a reasonable probability that intoxication would have

succeeded as a defense to the mens rea requirement of the death penalty

aggravating circumstance.

[7] Testimony at the postconviction proceeding established that McElroy had

taken two Mellarill pills the day of the shooting, was undergoing

counseling, and had been on anti-psychotic medication when he was

incarcerated shortly before the shooting.

[8] In Coleman,

Coleman offered testimony, inter alia, that his mother was a gambler

and a prostitute who “starved, beat & hustled” her children. Coleman

spent most of his childhood in conditions of squalor, living with a

grandmother who practiced voodoo and who told Coleman that his mother

had discarded him in a trash can when he was born. The grandmother

verbally vilified and physically beat Coleman. She addressed him by

his widely-known nickname “Pissy” because Coleman had bedwetting

problems through his early teens.

Coleman, 741 N.E.2d at 701 (citations omitted).

[9] It is not entirely clear what this contact entailed. The only

testimony on this point is from a competency hearing in which defense

counsel asked Masbaum: “[S]o you were—okay—did there come another occasion

you were aware, or see any pleadings in reference to that matter?” Masbaum

responded, “Well, the Judge—uh—indicated to me that I was—that there was a

pleading to take me off the case. That’s what I understood.”