holding that the defendant failed to show that counsel rendered deficient performance by failing to object to spectators wearing buttons with the victim’s picture because there was no record as to the size of the buttons, if the jurors could see the buttons, how many people were wearing the buttons, how many days of the trial the buttons were worn, or whether any juror was affected by the buttons
How later courts described this case
- holding that the defendant failed to show that counsel rendered deficient performance by failing to object to spectators wearing buttons with the victim’s picture because there was no record as to the size of the buttons, if the jurors could see the buttons, how many people were wearing the buttons, how many days of the trial the buttons were worn, or whether any juror was affected by the buttons
- holding that counsel will not be deemed ineffective for failing to anticipate or effectuate a change in the existing law
- holding that trial counsel’s performance should not he deemed deficient because counsel failed to anticipate that the prohibition against shackling defendants during the guilt/innocence phase would he extended in Deck, id., to the sentencing phase
- holding that, to show prejudice in a claim of ineffective assistance of appellate counsel, the petitioner must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different
Written by the judges who cited it.
The opinion
BOEHM, Justice,
concurring, and concurring in result as to Part VI. B.
I concur in all parts of Justice Rucker’s opinion except for Part VI. B. For the reasons explained below, I concur in the result reached in the separate opinions of Chief Justice Shepard and Justice Dickson.
I do not agree with the Chief Justice that prior decisions of this court have foreclosed Overstreet’s current claim that his execution would constitute cruel and unusual punishment in violation of Article I, Section 16 of the Indiana Constitution. Specifically, neither of the cases cited by Chief Justice Shepard’s separate opinion as to Part VI.B of the majority opinion addressed a claim that the current mental state of the petitioner rendered the petitioner ineligible for execution. Rather, Matheney v. State stated Mathene/s claim under the Indiana Constitution as that he “should be exempt from the death penalty because he was mentally ill when he committed the murder.” 833 N.E.2d 454, 456 (Ind.2005). Baird v. State was explicit in declining to rule on.the issue Overstreet seeks to raise: “we do not discern a claim that Baird is presently not competent to be executed....” 831 N.E.2d 109, 115 (Ind. 2005). Moreover, neither case addressed anything more than the specific record proof, or lack thereof, of the petitioner’s mental state.
I agree, however, that the Indiana Constitution affords no greater protection than the Eighth Amendment provides on this issue. The text of the Indiana Constitution on this point is identical to the Eighth Amendment, and there is nothing in the history or judicial precedents of this state, or our constitutional debates, that leads me to conclude that the texts should be interpreted differently. The Eighth Amendment prohibition against the execution of the insane rests significantly on evolving national standards of decency. 1 I *178 cannot conclude that the culture of Indiana is materially different in this respect from the national consensus the Supreme Court of the United States has found.
In the past few years, the Supreme Court has held that the federal Constitution prohibits the execution of both juveniles and the mentally retarded. See Roper v. Simmons, 543 U.S. 551, 567-68 , 125 S.Ct. 1183 , 161 L.Ed.2d 1 (2005); Atkins v. Virginia, 536 U.S. 304, 321 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002). No such categorical prohibition has been placed on the execution of the mentally ill, even those whose disease is severe. Rather, the Constitution has been held to prohibit only the execution of those who meet the standards set by Ford and Panetti Although I can certainly understand why the legislature might choose to prohibit the execution of all persons suffering from severe mental illness, that has not occurred in this state, and I cannot read Article I, Section 16 more expansively than the Eighth Amendment. Accordingly, I concur in the result reached by Chief Justice Shepard as to Part VLB.
. See Ford v. Wainwright, 477 U.S. 399, 406 , 106 S.Ct. 2595 , 91 L.Ed.2d 335 (1986) ("In addition to considering the barbarous methods generally outlawed in the 18th century, therefore, this Court takes into account objective evidence of contemporary values before determining whether a particular punishment comports with the fundamental human dignity that the [Eighth] Amendment protects.”); cf. Roper v. Simmons, 543 U.S. 551, 560-61 , 125 S.Ct. 1183 , 161 L.Ed.2d 1 (2005) (holding that the Court must refer to “ ‘the evolving standards of decency that mark the progress of a maturing society' to determine which punishments are so disproportionate as to be cruel and unusual” (quoting Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590 , 2 L.Ed.2d 630 (1958) (plurality opinion))); Atkins v. Virginia, 536 U.S. 304, 311-13 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002) (holding that the determination of constitutionality under the Eighth Amendment includes both a national consensus of the standards of decency as well as the Court's judgment of that consensus).