Matheney v. State

they because attended the same church. We of crimes for defen- which volved discussion in Shepard relationship The found that was so already indicted. court the had been dant discussing the remote in time and so casual that it portions devel- was also admitted unlikely juror’s ability the to serve. testimony, which included a to effect opment of false Id., case, significant- at 6. this we This is N.E.2d In deter- recounting of the crimes. any relationship mine was recorded that to the extent tape than the conversa- ly different established, this,case; clearly relationship the was too into the evidence tion admitted juror was include a recount- remote and casual that the here did not to.find conversation crime, incapable serving impartially. Our deci- were the statements ing of the nor First, is incriminating. that the state- sion based on several reasons. Our conclusion was or incriminating not are based on there no substantial direct evidence were ments (1) juror impartial that in fact following facts: nowhere the tran- was not personal relationship she tape conversation does that had a with script of the recorded Second, affiant that explicitly (although arguably it victim. stated defendant inferred) juror Captain Larry present he that the at the request believed was may be (2) funeral, observed; with-cer- he about what he but did not state this Towns13 to fact Third, conversation, tainty. affiant’s tape recorded de- claim during the stated, juror they’re trying “I him and victim when think talked with fendant (R. they part were was too for us something”14 me for children attenuated frame (3) 3.); personal .relationship find ex- on cross-exami- that a the detective testified ever conversation, Therefore, during the de- isted. we do find that defen- nation that right his go never him to down to the dant denied Sixth Amendment fendant asked statement, (R. impartial jury. a fair give a trial an police station (4) 683); nothing in the conversation

supports the cell mate’s accusation that de- Conclusion a wanted witness killed. Because we fendant judgment affirm the of the trial court. We were not incrimina- find that statements apply. rule Moulton does ting, the SHEPARD, C.J., DICKSON, SELBY there be no fundamental error findWe BOEHM, JJ., concur. recordings. tape the admission Ill he

Defendant was de asserts to a right fair trial

nied his Sixth Amendment impartial jury alleged as a result by an MATHENEY, Appellant Alan L. juror filed Belated misconduct. Defendant (Petitioner Below), requesting Error that the Motion to Correct be set and that new trial jury verdict aside based granted. motion was be Indiana, Appellee STATE of effect by non-party that one affidavit Below). (Respondent victim jurors had known the since No. 45S00-9207-PD-584. and had his funeral. De childhood attended appeals of this motion. fendant the denial Supreme Court Indiana. Shepard v. relies on Defendant Nov. 1997. (1980), support Ind. N.E.2d placed position in a that he contention Rehearing Denied March 1998. peril impar- of an due to the lack substantial trial, during In jury. Shepard, tial that he

juror informed court realized point the victim at one in time

he knew exculpatory, Cap- We rath- assumption 14. find this statement be Defendant is under the incriminating. Larry er.than Brown. tain Towns Cecil

887

890 Defender, Carpenter, K. Public J.

Susan Jr., Schutte, Jeffreys Merryman, Steven H. Defenders, Indianapolis, Deputy Public Appellant. General,

Jeffrey Modisett, Attorney Ar- A. Perry, Deputy Attorney thur Thaddeus Gen- eral, Appellee. Indianapolis, for SHEPARD, Chief Justice. petition post- L.

Alan filed conviction relief his conviction challenging sentence for the murder of his and death Conroy Judge former wife. Richard J. de- Matheney’s petition, Matheney ap- nied peals. affirm. We History I. Case jury A in March 1989 found that ex-wife, Bianco, Lisa while on murdered eight-hour pass from the In Correctional Pendleton, Indiana, Complex in dustrial serving battery where he was a sentence for previ with a and confinement connection Following jury’s on-Bianco. ous assault recommendation, the court sentenced Mathe- ney to Mathe- death. This Court affirmed ney’s conviction and sentence. (Ind.1992). This 583 N.E.2d 1202 post-conviction ensued. proceeding II. Burdens in Post-Conviction Relief procedures Post-conviction do not opportunity afford the convicted an for a Rather, they nar “super appeal.” create a remedy subsequent collateral chal rower convictions, lenges challenges which must to grounds post- in the be based on enumerated State, conviction rules. Weatherford (Ind.1993). the N.E.2d 915 Petitioners bear grounds by a establishing burden of their preponderance the evidence. Ind.Post- 5; Weatherford, Conviction Rule appealing negative the N.E.2d at 917. When (1996), court, petition applies post-conviction proceedings. to post-conviction of a judgment evidence, against post-conviction taken The court found that the when must show ers whole, Matheney con- unmistak on both issues. Because we unerringly “leads and as a Matheney’s state did not reached clude that mental opposite to that ably to a conclusion proceed, him to we affirm the make unable Weatherford, 619 N.E.2d trial court.” the (Ind. State, finding compe- trial court’s factual about 917; 455 N.E.2d 1126 Lowe v. 1988). day tence. therefore leave for another unswervingly not If the evidence does We Attorney plausible direction, the General’s contention of the point in that the decision post-conviction petitioner only be that a need stand. post-conviction court will sufficiently permit able to assist counsel to State, Process III. Due Claims performance adequate under Baum v. (Ind.1989) (holding 533 N.E.2d 1200 a full Matheney claims that he was denied subject posteonviction proceedings to are post-conviction court hearing at the and fair I, or Article section 13 Sixth Amendment rationally Matheney’s inability to because of guarantees). post-conviction and assist his' consult with counsel, provide Matheney court’s refusal to the the The record shows that believes jurors Matheney’s original systematic conspir- organized, names of the there to be an him, investigate possibility acy persecute originally the designed trial so he could misconduct, uneonstitutionality juror spearheaded by the his now deceased ex-wife County Magistrate Act which em- prosecutor the Lake the who tried his criminal magistrate presided attorneys, in his powered battery According the who case. to his case, part prejudice alleged conspiracy bias and on the believes this case, hearing magistrate issue and he case. be relevant cooperate with them if he does not will Competency Proceed with

A. attorneys’ strategic find his actions or deci- Post-Conviction Petition exposing conspiracy relevant sions psychiatrist against him. His counsel and a argue that mental for the defense claim that belief rationally prevented from illness results from mental disease which causes them, depriving consulting'with thus him of a only through him to see the world a deluded proceeding. Matheney’s post-conviction fair namely conspiracy. reality, version of stay post-convic counsel filed a motion to incompetence, proceedings due to tion of the record causes us to Our review testify parte, opportunity ex ruling received agree post-conviction with the court’s why agreement First, of the as to with Matheney’s competency. Matheney incompetent. After

they believed nature of the was able to understand the ques testimony, magistrate asked Page their proceedings against Magistrate him. Matheney. recessed the Stated, tions of He then Conroy on

hearing Judge to consult with repeated pro of the attor- se criticisms Matheney’s competence, re issue of .courts, rulings neys, and the on the deny the motion to turned with a decision to evidence, admissibility in them- all are (P.C.R. stay proceedings. support conclusion sufficient to selves very petitioner always has had a that the presses arguments two on this Counsel understanding nature of the clear first, facts show front: whether or not the proceedings agree if he did not with even Matheney “incompetent,” or unable to assist others’opinions present- be of what should preparation in the of his case and his counsel ' proceedings. in ed those post-convic to the nature of the understand (P.C.R. 935-36.) second, following colloquy if he is proceedings; tion and even magistrate sup- “competence,” as between the “incompetent,” whether addressing ports the court’s assessment of is in cases that term understood see, trial, legal strategy and the ability to understand process rights due defendant’s 352-356, Oklahoma, proceedings in which he found nature of the e.g., Cooper v. 517 U.S. 1373, 1376-77, 134L.Ed.2d 498 himself: S.Ct. Court; Supreme Matheney, you going get I to a new but Q. do- know who Mr. Supreme along come a new Court don’t am? enough often this decade. Q. Does that seem unreasonable for them Magistrate Page. A. position? you to that Have not take my you what function is Q. And know do seen cases where a court will rule the here? way again; same over and over and then post Today you presiding over this A. are sudden, along same all of a comes the hearing.... conviction well, say, question they now that we Q. post hearing? conviction What is a it, changed our think about we’ve mind? , your legalities Yeah, just of the A The attack like that. I A I’ve seen cases conviction, legal it was or ille- whether felt that there could have been more up you that gal, bring investigated put issues that feel in this than issues right to a new trial or a defendant has what was. or whatever.

sentence relief Q. attorneys suggested Your have that grounds

the failure to include additional you specifically a result of instruct- are Q. attorneys have filed a Petition Your ing cooperate. others Is that the Relief, in which nu- for Post Conviction of the matter? fact alleged. you Have grounds are merous thing during A. I believe this whole that petition? this had an occasion to read they investigate my want childhood. times, just couple I and I A. read it a Well, absolutely nothing that has —what per- paid grounds to the attention them, repeatedly I told over and over a lot of tained to mei‘ There’s stuff again, you what concen- should there, they put every- statutorily, that place, you trate on is what had taken body’s penalty; pay and I didn’t death Bianco, know, the death of Lisa to, they’ve attention because too much it; what caused and we concen- should already ruled on over and over been particular, you investigating trate on n again. know, period Going my of time. back to you or Q. said that felt And the doctor me, years ago, childhood 30 or 40 give impres- seemed to indicate or know, you it’s a doesn’t seem like it’s — you that these issues were sion that felt time, waste of a waste of valuable time. frivolous, only you because the issue feel spent I think time could be better on alleged [the is relevant is the one about investigating things about the incident your conspiracy between wife and the itself. attorney your prosecuting trial] Q. may thinking You alone in that. be this— understand; argument I has been A No. There’s a lot of issues there made before. I agrée that I with. The ones that read, A. And I also—from what I’ve agree the ones that didn’t with were well, courts I know the state don’t— issue, they everybody’s keep putting in put weight a whole lot of on courts don’t Supreme keeps turning that the Court that’s, mitigators, things stuff as down. years ago, my happened 30 or opinion. Well, Q. general challenges (P.C.R. Matheney’s re- death itself? sponses magistrate indicate a clear Right, yes. A. understanding posture of the of his case and Q. strategies attorneys sought of time what he and You feel that those are waste employ. previous rulings of the

because Supreme Court? Second, Matheney may not have co- while them, lawyers disagreed they operated A. Yeah. I with his when he When discussed said, well, strategies may you you’re know with some of their have never when client, with, they Okay. you THE extremely speak difficult were COURT: Did been an then, provide him those able to converse with other associates? post-conviction review of his convic- adequate very'small MR. MERRYMAN: This was a n instance, sentence. For tion and group people. cooperate in Matheney would not claims attempts questions to ask him about his their [Matheney’s] MR. ... SCHUTTE: illness purposes developing po- background for prevents discussing either’ from [him] mitigating Matheney’s un- tential evidence. with us his what childhood was like or from an cooperativeness did not arise inabili- giving family they from his the freedom ty comprehend to the situation or a desire to need to discuss it with us. attorneys every attempts thwart the of his Now, I suggest you family will to his Rather, turn. based his review of case upon represent you has been —I will to that I regarding type mitigation law evi- have discussed —I have interviewed his dence, attorneys’ Matheney viewed his at- family on numerous occasions. Prior to tempts investigate his as an childhood discussions, following each of those attorneys’ already inefficient use of his limit- Matheney Mr. has notified them that (See ed time and resources. P.C.R. at 1343- they under no circumstances are to com- 44.) anymore; municate with me because all Also, Matheney’s counsel were able to do do, view, trying I’m in his is the same research, although they background admit- thing. old tedly had more difficult time than usual THE they Have COURT: honored those doing following colloquy so. The is illustra- requests? being impossible of the situation not as tive They MR. great SCHUTTE: are under a suggests: as counsel think, frankly, they burden. I have specifical- MR. MERRYMAN: He will not they been less candid with me than are, ly tell us who his friends who his be_ like to would exceptions associates —with a few —who (P.C.R. 1326-27; While to, are, his associates we can talk who very may important client be a source of develop background. his investigation information counsel’s of a you THE speak COURT: Did with those case, source, capital the client is not the associates? especially during post-conviction lengthy process. spoke MR. MERRYMAN: We with some

of them. from Dr. the evidence Berkson Given previously competent they you THE tell COURT: Did who (P.C.R. trial,1 2150-51), stand the evidence other associates were? post-conviction available to the court about MR. MERRYMAN: Mr. state, Matheney’s present mental and the didn’t— give deference to a trier of fact’s determi we THE COURT: Yes or no? comp petitioner’s nation of a defendant’s or a They etency,2 say point MR. MERRYMAN: told us who we cannot the facts they opposite unswervingly other associates were towards result —the they post-conviction of. court. knew one reached Smalldon, Although Jeffrey psycholo- viewing Matheney engaging 1. Dr. L. Smalldon after defense, gist testifying questions strong him in series of and answers. for the took issue opinions pro- with the Dr. Berkson other (P.C.R. Matheney, fessionals who evaluated see Owens, People 139 Ill.2d Ill.Dec. v. Cf. 1764-66), required 522, 527, trier of fact is (1990) (post- status, expert testimony believe on mental Smith may presumed compe petitioners conviction tent); be (Ind.1987), 502 N.E.2d 485 and could California, Medina v. 505 U.S. 445- 2572, 2577-81, very easily opinions accepted have S.Ct. L.Ed.2d 353 (1992) experts (upholding allocating who evaluated before his trial burden of statute defendant). incompetency establishing and have discounted the observations of Dr. discovering to other reasonable means of Ability Jurors to Interview B. requested the hints of misconduct without post-eonviction the Matheney moved ruling The trial court’s of disclosure. order to dis jury commissioner to order the court clearly was not erroneous. alternates jurors the and names of close the trial, investigate so he could County Magistrate Lake Act C. The any exposed to jury had been whether the The court denied influences. extraneous claims that Indiana Code (West that there grounds 1996), on the 33-5-29.5-7.1, motion § -7.2 which cre any outside influ of Page no indication occu position Magistrate had been ates the justifying III, such an order. jury case, ences on the Article Section pied in this violates petitioner 1;4 VII, that until 1;3 VII, reasoned The court and Article Article Section showing of a reasonable 4,5 initial makes an of Indiana’s Constitution. Mathe- Section improp jury might have been authority the judicial belief that ney argues that because all influenced, priva jurors’ interests erly Court, the the'legislature Supreme with the rests outweigh petitioner’s interest repose cy “magistrate” and position create the of cannot improper influences uncovering possible upon Only it. judicial authority and confer (P.C.R. jury. Court, Matheney argues, on a has Supreme courts, power supervise the lower and can accrue impermissible harm While positions magisterial to create when thus juries improperly are to defendants when need arises therein. see, information, by extraneous influenced dispute over (Ind. These claims remind us of a State, 511 N.E.2d 1014 e.g., v. Wilson authority in legislative judicial the last 1987), post-conviction agree with we Supreme In dock century. 1881 the Court’s jurors’ protection of the interests court backlog of cases et was overburdened with ample repose is privacy reason relief, two-years deep. provide To the Gen problem grant hint of a before require some Assembly passed allowed eral an act which jurors’ names. ing a motion to disclose appoint commissioners for the Court to five 262 Ind. Stinson Cf. year regula rules and two terms “under such (Ind.1974) request of (affirming denial adopt, to aid and tions as the Court shall by supported jury’s verdict set aside performance in the its assist Court irreg claiming impermissible juror affidavits 14, 1881, 1, 1881 April Act Ind. duties.” deliberation, opposite because ularities 92; Monks, Acts 1 Leander J. Courts and by juror harassment ruling would lead (1916). The Lawyers of Indiana 298-99 Su resulting in an “un litigation both sides of the commis preme assigned Court cases to upon who serve burden citizens conscionable sioners, approval over each but had final juries”). Monks, opinion. supra, at 299. This ar Matheney’s counsel had access to the name rangement was renewed for another two part of the jury foreperson, as it was of the 1, 1883 3, 1883, § years in Act of March 1219.) (P.C.R. In- court’s record. trial 77, 77, congestion 1885 the Ind. Acts deed, regarding her counsel conversed with Monks, of the docket was alleviated. See tampering or the re- any possibility jury supra, at 299. by its mem- ceipt of extraneous information congested, again In the docket was of misconduct. bers and found no evidence (P.C.R. 1220.) appeal Thus, Matheney and “for a second time an was made had access power judicial the State shall be vested powers are divided 4. "The 3."The of the Government Court, Appeals, Supreme in one one Court Legislative, separate departments; into three Courts, and such other courts as Administrative, Circuit including Executive Assembly may Ind. Const. General establish.” person, charged with offi the Judicial: and no VII, § art. 1. departments, shall cial duties under one of these another, except any of the functions of exercise original Supreme have no 5. "The Court shall expressly provided.” Ind. as in this Constitution supervision jurisdiction except ... of the exer III, § Const. art. jurisdiction by the other courts cise of VII, § 4. State....” Ind. Const. art.

895 operated trate act constitutional as it in this provide some relief.” Legislature passed nearly a identi- legislature bill case.7 Id. The act, important one 1881 but with

cal to the Assembly, and the General difference: Prejudice Magistrate D. Bias & Court, appoint the commissioners. the was Matheney Magistrate claims T. 1, 41, 22, 1889, § 1889 Ind. Acts Act of Feb. Page, Judge Conroy to whom Edward re Court, Supreme finding that this 41. The hearing, prejudged ferred the case for the III, 1, violated article section modification against facts and was therefore biased him. VII, 1, section of Indiana’s Consti- and article allegation on He certain comments bases tution, act unconstitu- quickly declared the by magistrate hearing. made before the Noble, Hovey rel. 118 tional. ex in Magistrate Page’s The first occurred own (1889). Ind. 21 N.E. Stephen meeting office when he was with appoint Page such as are not Magistrates Owens, defender, deputy public a and Kath by governor, but by legislature ed Sullivan, County prosecutor, leen a Lake judiciary, appointment their is not Matheney’s about a matter unrelated to ease. mandated, §§ Ann. 33-4- even see Ind.Code secretary him magistrate’s The handed a mo (West 7-1, 1996), unlike the 33-5-29.5-7.2 just tion that had arrived via fax from Act of the 1881 act. See of commissioners stay pro requesting counsel of 14, 1881, 1,§ Ind. Acts ch. April ceedings allegedly in because 1, 92, in provisions 92. The the Indiana motion, competent. Seeing the title of the Magistrate Page which acted under Code Magistrate Page stopped his conversation prelimi him merely allowed to conduct it, taking interest in the motion read because nary proceedings hearing gatherer as a of its nature and how close its arrival was to facts, him of not allow to issue a final but did hearing date. He stated that his interest §Ann. appealable order. See Ind.Code 33— Dr. peaked when he came to the affidavit of (amended (West 4-7-4, -7, Supp.1992) -8 Smalldon, sup Jeffrey psychologist who 1993). could, did, Only Judge Conroy Among ported allegations. the motion’s oth (see 945), appealable issue the final P.C.R. things, er Smalldon asserted: order, uninformed or and did not do so My opinion that Mr. com- is not magistrate maimer.6 find the cavalier We petent legal to assist his counsel is based provisions at issue this case reminiscent my of his current mental provided assessment acceptable legislative assistance Although exists a factual status. there in the acts of 1881 and and not the opinion, I judiciary basis for this have been advised on the found encroachment by Matheney’s legal not to Accordingly, magis- act 1889. we hold the Mr. them, forth, by Magistrate Page go following over back and and before 6. The statement degree is A final decision will be final decision made. illustrates the substantial of control main- by Judge Conroy alone. He will have Conroy proceeding: made Judge in this tained tape. reference to this He will have reference Court: The through all of documents that are [sic] submitted.... procedure case that at The followed in this is (P.C.R. proceedings, Judge Conroy every stage of these involved, more, have, has been if not than I Page Acting appropriately magistrate, as a motions, reviewing researching terms of judge pro also been a tem or a need not have legal up. that have has called issues come He special judge, as contends. The con- give me in from time to time to me direction stitutionality involving magis- act similar my points, draw on certain attention previously challenged in this Court trates certainly research. He has read Mr. certain fifty years ago. arguments over did not Matheney's pro pleadings se that have been pass power legislature to surround the of the ’ detail, rather, explained act, however; because he offered in has the issue was such an me, their content to more than I have read the constitu- whether or not it was a violation of the- myself. judges, governor, motions to do tion to allow and not the concluded, hearing legislature magis- power I will draw After this so. The to create Judge questioned. up findings, See Petition both in discussions with trate courts was never Magistrates, Conroy Appointment Ind. beforehand and in discussions with (Ind.1940). Conroy Judge We will N.E.2d 773 after drafts are made. attorney attor- purposes the cur- the State’s that basis disclose prescheduled conference ney, pursuant to a rent affidavit. call, for them whether it was wise and asked (P.C.R. original).) (emphasis at 279 pretrial meetings without to continue to hold making a judge faced with any “I think reporter, given presence of a court what my imme- would understand decision difficult po- magistrate just had learned about a the frustration,” magistrate later stat- diate Matheney’s from counsel re- tential motion speaking to no one in up, and “I looked ed. previous out-of-court statements garding comment, T don’t be- particular, made Page allegedly made. It was this had ‘They this,’ something to that effect. lieve Matheney’s Page time that counsel informed incompetent, they but find him ask me to Eng- from about the contents of affidavits ” (P.C.R. 1186.) Ow- why.’ don’t tefi me land and Owens. Page Magistrate “said that ens testified Matheney that this incident violated claims like, arrogance T can’t believe something Conduct, of Judicial which Indiana’s Code They me to find people. want of those initiate, states, judge permit, “A shall not or they won’t even Matheney incompetent but parte consider ex communications made (P.C.R. they think that.’” why tell me parties, judge presence outside the of the 377.)8 proceed- concerning pending impending a or show under- Magistrate Page’s remarks an ” ing Canon Ind.Judicial Conduct with a motion that would standable irritation 3(B)(8). disagree. Magistrate Page did We faet, which readily any trier of one frustrate against with a not seek out contact witness requests hearing, but declines disclose in Matheney. The “witness” this instance might judge base a the facts on which merely Page shared with what she had heard deny request. that His grant or decision to magis- about the nature of statements the prejudgment of the remarks do-not indicate trate, himself, Matheney had made. could motion, against they bias Mathe- nor do show reasonably Page as perceive not biased ney.9 merely magistrate because the learned of a Matheney’s counsel was about motion which Matheney Magis also claims actually against to file him before it was filed. parte in communica Page engaged ex trate parties Page immediately made both aware potential appears witness. It tion with a ap- him. of what Sullivan had said to No Sullivan, receiving after a sub that Kathleen impropriety partiality or arises pearance of poena Matheney’s regarding counsel from facts.10 from these presence magistrate’s in the chambers her “injudicious” allegedly when he made his re Matheney alleges that com also marks, magistrate that he reported to the by Magistrate Page at the be ments made making injudicious re had been accused of ginning post-conviction hearing, penalty post-conviction marks about death previously judges, to other show his bias particular. If petitioners, relief litigants general. against penalty death way magistrate replied any to Sulli specific by Page statement on which statement, at 1191 (compare van’s P.C.R. issue is as follows: takes 1195), it was to ask her if the with P.C.R. at privileged. [Allegations judicial prejudice bias and sharing she was was information are, Thereafter, immediately accusing judge being next Page contacted both Likewise, Deputy Matheney's affidavit from 8.We note that counsel submitted England A. to the effect Public Defender John only public present from the defender affidavit impression Magistrate Page he was “left concerning magistrate allegedly said what pleased about whatever was in the not instance, during particular but did and did this (P.C.R. 379), pleading,” prejudice against does little to show submit an affidavit from the Lake Coun- also Matheney. ty prosecuting attorney present, who was also appears though latter received a even it that the Matheney's complaint 10. The same is true of provide subpoena from magistrate’s inquiry to Sullivan about about (See testimony. such P.C.R. at possible receipt subpoena of a whether her confidentiality. subject to rules on matter carefully most serious accusations error. have reviewed the facts corrupt, are the We bias, They surrounding allegation seem to be made this you can make. final find- post convic- casually petitions in these ing misunderstanding that either a on the cases; penalty regarding tion relief death part Matheney’s lawyers or a miscommu- although I assured counsel last magistrate’s part, nication on the rather than that, oh, week, subject up, came when plot by magistrate, a malicious led no, routinely made these are not Matheney’s inadequate post-conviction brief. particular they have made it prejudice against We find no bias Mathe- instance; knowledge, they’re and to their ney part Magistrate on the Page. routinely made in death cases. interesting I find it some discus- Ineffective IY. Assistance of Counsel I at a conference last judges sions had with litigant A who claims he was denied his Friday, they when asked me how the hear- right Sixth Amendment to effective assis ing going, was and I mentioned how the satisfy of tance counsel must the standard objected to, began being it hearing with Washington, enunciated Strickland v. 466 myself I ought disqualify that I because 2052, 668, U.S. 104 S.Ct. 80 674 L.Ed.2d prejudiced, my being was biased and (1984). State, 1153, Douglas v. 663 N.E.2d being prejudiced of and accused biased (Ind.1996). Strickland, 1154 Under a defen objection everytime I on an [sic] ruled attorney’s perfor dant show that his must petitioner.... response The against the objective mance “fell below standard of judge from one who had handled death reasonableness,” Strickland, (citing id. 466 was, penalty is that he had PCRs before 2064-66) 687-91, at U.S. 104 S.Ct. at and experienced thing. the same I have heard performance deprived “that this substandard judge, that from another as well. trial,” Strickland, (citing him of a fair id. 466 (P.C.R. 1183-84.) agree We with Mathe- 691-96, 2066-69), U.S. 104 S.Ct. at as ney’s characterization of these statements as by determined whether “there is a reason comments,” (Petitioner’s 49). Br. at “mild probability pro able that the result of the by judge articulation of observations one ceeding would have been different but for the concerning judges to fellow what the former inadequate representation,” defense counsel’s part perceives to be a trend on of defen- .the (Ind.1996). State, v. 675 692 Cook N.E.2d post-conviction petitioners dants or does not Matheney’s prongs on the of evidence two indicate bias. presumption Strickland test must rebut a the. argues Magis also performance adequate. that counsel’s was Page hearing by him a fair trate denied State, (Ind.1995). Butler v. 658 72 N.E.2d misleading regarding briefing his counsel re quirements ruling many Matheney’s concerning then of his claims coun and inef pertain appellate fective assistance of counsel claims waived sel to both his trial11 and pro representation, they legion.12 Judge of either failure to are because argument plead Conroy many cogent vide or his failure to found of these issues waived specific support allegations provide cogent argument facts in of his of for failure to counsel, Normally, challenge Spranger, Matheney's the trial coun of trial Scott failure one appeal King, attorney appeal. sel’s ineffectiveness on direct constitutes L. was his sole on Ac- post-conviction its waiver from consideration. cordingly, prior precedent, we will follow our see State, (Ind. Spranger v. 650 N.E.2d 1121 State, (Ind.1986), also v. 500 N.E.2d 1219 Askew 1995) (citing Hollonquest v. Matheney's post-conviction and review chal- (Ind. 1982)). lenges to the effectiveness of his counsel's trial However, attorney represents the when same assistance. appeal defendant both at trial and on and does appeal of not raise ineffectiveness, the issue trial counsel example, post-conviction 12. For court listed ap- we have been reluctant to sixly-one 'separate allega- ineffective assistance ply appel- waiver forever “and thus foreclose pertaining appellate counsel alone in its tions raising question competen- of lant from (See Findings of Law. of P.C.R. Fact/Conclusions cy of his trial counsel.” Majors Spranger, State, (quoting at 1121 N.E.2d (Ind.1982).) N.E.2d As in mitigating listed factors in the support facts in death plead sufficient

failure to 35-50-2-9(c)(6) At least some of these alle- statute. Ind.Code allegations. decided, (West Therefore, gations Supp.1996). have preserved. are We ar- judicial economy because gues, for pursuing interests counsel were ineffective record, sufficiently developed guilt phase they on which there is defense had claim whole. success, ineffectiveness as a hope failing evaluate the no to adequate- while assis- ineffective Finding ly present readily all available mitigating evi- allegations unpersuasive, we tance of counsel penalty phase. during dence denied the effec- hold present trial While eounsel bemoan coun of counsel. Because we also tive assistance insanity defense, pursue sels’ decision to meritless, claims we will many of these find they provide no evidence of what alternative stronger arguments of his some address strategy employed trial counsel should have for illustration. Indeed, in its stead. there is much to indi cate that employing this the best defense Insanity A. Use Defense alternative was no available. There available Mitigating Evidence defense that would have cast doubt on the Matheney claims his trial counsel Bianco, intentionally fact that he killed Lisa during pursued guilt phase a defense defense, employing insanity by Matheney’s the mental unsupported Matheney’s attorneys able to were introduce evidence, not and did ar adequately health they evidence that otherwise would not have phase gue during the the existence of (See able at been to submit. P.C.R. from mitigating circumstance available (indicating insanity counsels’ use of trial de Matheney’s mental health evidence. Mathe get Matheney’s story fense to side of the ney’s argument is summarized as follows. jury through expert the before the called Morrison, psychologist exam Dr. who had testify, keeping Metheney while himself off testify sup in Matheney, was called ined stand)). the conclude witness We counsel insanity port Matheney’s She of defense. perform professional did not at a level below Matheney para that suffered from a testified norms. prove insanity, To personality disorder. noid show, among phase things, Matheney’s penalty must other claim of defendant appreciate wrongful prejudice not the ineffective assistance fails on the that he could In prong. opinion concerning when he the our of his actions committed Mathe ness (West 1986). ney’s appeal, 35-41-3-6 direct we addressed the crime. Ind.Code “inabil attempted ity mitigator, noting prove that conform” evidence Counsel never appreciate finding Matheney wrongful supporting the trial court’s that this did fact, Moreover, mitigator In actions. Dr. Morrison did not exist.13 while ness of his part post-convic trial not elicit the as counsel did statement testified “Matheney’s opined prevented that she have illness him from proceeding tion would con Matheney appreciate forming requirements could that his behavior to trial Morrison, they wrongfulness day his actions on the of the the law” from Dr. did elicit However, testimony guilt phase also in her at the crime. she stated that from her which prevented support opinion Matheney’s presence mitigator. illness him could of that (See T.R. trial conforming require from his conduct to the The court in inability jury “inability formed the of the law. Such is one about to con- ments house, proached Bianco’s and then We stated: carried out plan extremely indicate that he was not argues ability Appellant ... that his to con- mentally emotionally and disturbed the time requirements to the his conduct of the form Further, appellant murder. had ex- impaired his mental disease. law was However, pressed repeatedly an to kill psychiatrist intention Bianco the defense offered a and had to do diagnosis rejected by to solicit others so. This which tried diseased-mind supports finding evidence appellant the trial court’s that jury. facts show The that present. manipulative. mitigating this was not intelligent circumstance (Ind. Matheney appellant prepared which The manner in Bianco, 1992). way killing ap- he which jury Matheney April 1989. Neither told the it could found mitigator, and form” guilt phase presence from the dur- of mental disease or defect. consider evidence Finally, trial counsel penalty phase. during Dr. ing the Berkson stated his examina- mitigator to the argued arguing Matheney difficulty while responding tion had no judge, sentencing. jury, to the about promptly questions, organizing to his his explicit opinion Dr. eliciting Morrison’s While thoughts thoughts, putting together during presence mitigator of this as to the logical, sequential Dr. order. Berkson also may helped Mathe- penalty phase have testified he had examined two Dr. testimony elicited from ney, given the years previous to a crimi- earlier relation Morrison, closing argument, trial counsel’s Matheney compe- nal matter and had found cutting against the pres- the evidence at that time. tent already mitigator mentioned ence of that trial counsel believed While say that the previous opinion, we cannot our ill, mentally they pre- be it did believe testimony from Dr. Mor- failure to elicit such from-understanding proceed- vented him probability “a reasonable rison creates ings or from assisting his own defense. been proceeding the result of the would have Lahey, Charles one of trial coun- Cook, different,” N.E.2d at 692. sel, testified, conduct, “Despite his obsessive Notify B. Failure to the Court about [Matheney] incapable I didn’t find Alleged Incompetency fact, In planning his own defense. he was actively planning although right it it wasn’t Matheney argues trial (P.C.R. 1500.) regards.” in all When failing bring Mathe were ineffective asked, your opinion “In did Mr. incompetence attention ney’s alleged general legal system have a idea of how the post-conviction court found of the court. operated being charged he was and what trial, Matheney competent to have stood situation,” gravity Lahey and the with that his counsel were not ineffec thus ruled “Yes, replied, I did think that he did.” hearing failing for to secure a formal on tive (P.C.R. 1516.) thought if Asked he Matheney’s competency. competent Matheney to assist him with was competent A not to defendant defense, Lahey responded that while trial he is unable to understand stand when them, Matheney help to was of little he did proceedings preparation and assist in the help not lack of due believe was § Ann. 35-36-3- of his defense. Ind.Code un- incompetence, legally to as that term is 1(a) (West 1986). making When an ineffec (See 1542-13.) Philip derstood. id. at Sko- upon attorney’s an fail tiveness claim based dinski, counsel, Matheney’s trial another of request competency hearing, to a ure Matheney competent when if was to asked post-conviction petitioner appellate or must was_ assist, replied, “I think he He cer- performance prejudice hurdles cross the tainly charged understood what he was with of the Strickland standard. Dodson v. to he [sic] or what evidence find was (Ind.1987). Matheney’s 502 N.E.2d 1333 guess I guilty. regard In that he was com- claim not overcome the first hurdle. does (P.C.R. petent to assist his own defense.” 14, 1989, Matheney’s trial coun- On March 1734.) insanity a notice of defense and sel filed psychiatrists’ Given the determinations be- psychiatrist requested examination for trial, opinions own fore trial counsels’ determining Matheney’s competency to stand Matheney’s competency, and Dr. Berkson’s appointed 27 trial. On March the trial court Matheney’s compe- earlier purposes and Batacan “for determination Drs. Berkson [Matheney’s] tency, were not ineffective for determining competency to trial counsel (T.R. 7.) up request for a deter- sanity.” failing trial and Dr. to follow their stand competency motion Matheney April on 12 and mination of with formal Batacan examined 21, 1989, Matheney’s competency.14 hearing on June and Dr. Berkson examined for vein, failing Matheney’s competen- Matheney’s appellate 14. In this same coun- to raise the issue of cy proceed appeal. on not be considered ineffective for either to stand trial or sel would also 900 - Jury Instructions Properly Preserve to Failure

G. Errors” “Fundamental Matheney alleges of his trial coun- that one his trial Matheney claims both counsel, sel, appellate was who was also his were ineffective for appellate counsel objections failing preserve to ineffective for err preserve fundamental failing properly “to jury in the instructions and to various errors (Petitioner’s (capitaliza Br. at 87 ors.”15 failing allege them as fundamental then excluded).) Specifically, emphasis tion and alleged appeal. these error on We address first, alleges three errors: failings below. failing ineffective for appellate counsel was ap on direct argue prosecutorial misconduct (a) Insanity. Proving Burden of counsel, second, of whom that trial one peal; preliminary Matheney claims that various counsel, for (see ineffective appellate instructions, also was jury T.R. guilt phase to various al preserve objections failing 577, 611, 620, 632), erroneous because were jury then leged in the instructions and errors proving they placed on him the burden of error failing allege them as fundamental insanity by preponderance of the evidence. third, appellate that trial and appeal; imposed by Ann. This burden is Ind.Code pre failing 35-41-4-1(b) (West 1986). ineffective counsel were This Court has pertain particular claims constitutional, serve raise Price v. and/or found this burden unconstitutionality of ing Indiana’s State, 479, (1980), 274 Ind. N.E.2d 783 and on direct penalty statute trial Court, death Supreme has Leland and so the U.S. Oregon, 343 72 S.Ct. U.S. appeal. (1952). Thus, Matheney’s coun L.Ed. 1302 1. Prosecutorial Misconduct profes perform “prevailing sel did below norms,” Washington, Strickland v. sional appellate claims his 668, 690, U.S. S.Ct. raising for not counsel was ineffective (1984). L.Ed.2d 674 However, prosecutorial misconduct. issue of appellate inef out of the multitude of (b) “Competent” Defendant as Wit petition post- fectiveness claims ness. claims trial counsel-should relief, Matheney never once makes conviction objected says an in have to what he post-conviction ac court this claim.16 competence: commenting on his struction (See findings no on it. cordingly made P.C.R., competent Attorney The is a witness to The General defendant at Attorney testify may testify in The his own behalf. He contends this issue waived. State, not, case, may as he choose. In this is correct. Canaan v. 683 General (Ind.1997) (“[C]laims 227, has testified. This fact is 235 not defendant not N.E.2d by any appeal jury in an not to be considered as appellant’s advanced until brief guilt. jury shall not com- post-conviction relief are evidence of The from the denial of waived.”)17 to, upon, any or in manner ment refer admissibility questioning to the this line of on 15. Counsel seems to misunderstand the nature of 246-47, (P.C.R. prosecutor. If an error is part "fundamental error." fundamen at the 250.) tal, grave However, be addressed then it is so that it must Matheney's ob- trial counsel did appeal regardless on of whether the issue was ( ject questioning, to this line of twice. T.R. at See, e.g., properly "preserved.” David otherwise 2415-16, 2443-49.) State, 390, (Ind.1996) ("Where v. 669 N.E.2d 392 appellate court finds the error to be funda state, 17.Matheney’s petition "Matheney does mental, preserved by be such error need not by of counsel was denied the effective assistance contemporaneous objection.... qualify 'To as appellate coun- numerous acts and omissions of error,” error must be a sub "fundamental include, but sel.:.. acts and omissions Those principles violation of basic ren stantial blatant to, (P.C.R. following:” 230 are at not limited ”) (quot dering the trial unfair to defendant.’ However, added).) (emphasis this non-commit- State, 727, (Ind. ing v. 730 Townsend every preserve phrase con- tal is insufficient 1994) (citations omitted)). appellate' claim of counsel ineffective ceivable petition in does claim his petition. assistance not mentioned in the object failing trial was ineffective counsel for

901 (Ind.1989), reh., 772 557 fact that the defendant did N.E.2d N.E.2d consider the denied, (1990), your at verdict in testify arriving cert. 501 U.S. (1991). this case. S.Ct. 115 L.Ed.2d 1074 (T.R. 630.) Matheney, According to “[i]n at (d) “Lying in Wait” Instruction. ‘competent’ implies usage, the term common gave following trial The court instruction free of mental an individual who is sane and jury: 98.) (Petitioner’s Br. at Because illness.” “Lying requires watching, in wait” wait- allegation of mental illness central ing, person and concealment from the sentence, Matheney argues his defense and person. killed with the intent to kill that either his trial counsel was ineffective “Lying taking in wait” means the victim instruction, object or his failing to this lying in surprise or ambush. The wait failing ineffective for appellate counsel was any particular period need last for appeal. raise the issue on provided length time that the of time is correctly post-conviction court to allow the sufficient defendant to form as interpreted the word this instance the intent to kill. (P.C.R. 914.) meaning “legally qualified.” Concealment from the victim must be “competent” The definitions listed gain direct means to attack or control Dictionary im- New Webster’s International necessary, of the victim. It is not howev- Rather, “sanity.” meanings ply no link to er, that the be defendant concealed when aptitude,” “possessed such as of sufficient long the fatal acts are committed as as the “possessed perform an of skill needed to begins continuously lethal attack and flows action,” “legally qualified in indicated from the moment the concealment and physical makeup [competent] <a mental and waiting ends. are listed. Webster’s Third New witness!” (1993). Dictionary 463-64 International (T.R. 915.) 669; P.C.R. at This instruc assumption Matheney offers no basis for his is a correct statement of tion Indiana law. jury “competent” that a would understand (Ind.1985), See Davis N.E.2d anything legally other than able. mean denied, rt. 474 U.S. 106 S.Ct. ce Moreover, Matheney’s defense went to his (1985). “lying 88 L.Ed.2d While sanity he the act. the time committed code, criminal wait” is not defined this correct, if Even the most the of it in and subse Court’s definition Davis instruction would have done was cause the speci quent gives phrase sufficient eases jury time to think “sane” ficity vagueness challenge. As to survive a Thus, any trial. he has not shown evidence ability aggravator’s for this to narrow the possible prejudice, perfor- or of deficient murderers, death-eligible class of Davis indi part of his for not mance on the cates that not all those convicted murder advancing argument ap- at trial or on necessarily aggrava would fall within this peal. (finding tor’s See id. at 897 insuf definition. support the trial court’s ficient evidence to (c) Sympathy. Consideration lying committed while in finding of murder in guilt phase jury claims that a wait). lawyer reasonable would think it No jury prohibited struction which from con y necessary challenge lying ag- in wait sidering sympathy for when Mathene case, gravator applied or as in this on its face verdict, jury’s reaching a with the combined given dealing with this issue. our eases guilt phase instruction to consider all evi (e) Containing All Statu sentencing phase, dence at the amounted to a Instruction upon jury sym tory Mitigators. claims that the mandate not to consider by giving penalty phase lim pathy sentencing phase, at the absent a trial court erred six, eight contrary. Matheney’s placed instruction which all statuto iting instruction to the jury not failing ry mitigators for to make before the and did counsel were not deficient however, mitiga jury that it consider argument, light this in of our hold instruct the must mitigators sympathy tion. were ing that should not influence Several State, presented in his jury’s v. 547 relevant to the evidence recommendation. Woods inade- penalty phase final instructions were Therefore, Matheney argues, he was case. (1) they failed to state that the quate that: it trivi- by this instruction because prejudiced factor mitigating to find a jury did not need present and he did the evidence which alized (2) it; consider unanimously in order to jury encouraged the to view possibly mitigating circum- they failed to state that mitigators as an the listed of one of absence preponder- proven by a stances need be of itself. circumstance aggravating ance. argument, Miller v. rejected this have We (Ind.1993),

State, and thus do 628 N.E.2d contention, Matheney’s As to first were ineffective counsel not view him. already against resolved it has Court making it. for not (Ind.1994). State, v. 642 N.E.2d Bivins Thus, ineffec- Matheney’s counsel were not that the trial Matheney also asserts prof- failing argument to make the tive for jury, instructing the “The court erred fered here. may that be consid mitigating circumstances (T.R. follows,” are as er under this section contention, it is Matheney’s second As to 670), jury must consider claiming that “preponderance of the evidence” is true that instruc “may” in the court’s mitigation. The determining appropriate standard for miti consideration of go tion does not (citing Id. at 950 mitigating circumstances. that the generally, to the notion gation but State, N.E.2d Rouster v. any consider one or jury permitted (Ind.1992)). would An instruction to that effect list, including the following more Nevertheless, appropriate. have been final instruc at the end. Given “catch-all” stating, an instruction so without absence of ten, states, “You are to consider tion which more, jurors necessarily suggest to does not mitigating circum aggravating and both proven mitigating need be circumstances (T.R. 674), stances,” we have no reason doubt, Matheney con beyond a reasonable as the cor jury that the misunderstood believe Matheney’s argument questioned tends. “may” in instruction interpretation rect 403, 409-10 Miller a correct instruction six was six. Because (Ind.1993), formally reject today. it and we law, Matheney’s counsel statement of the Miller, “All instructions to a As we noted in failing to raise the were not ineffective place that burden jury on reasonable doubt arguments proffered here. any no upon the State. There is inference trial evidence portion of a defendant’s (f) Phase Evi Guilt Consideration scrutiny.” Id. at 409. comes under Matheney argues Penalty Phase. dence jury something specific given in the Without counsel were appellate his trial or that either clearly jury would lead instructions which challenge failing to the trial ineffective for misunderstanding, a bald assertion such jury to consider all court’s instruction of presume jury likely to will as to what a penalty phase. phase at the guilt evidence suffice. id.) (See, previously e.g., Because we have of all the trial approved incorporation (h) Penalty Final Instruction Phase see, consideration, penalty phase evidence for Matheney alleges Twelve. (Ind. State, 475 N.E.2d 1139 e.g., Smith v. jury gave the phase final instruction twelve18 1985), ineffec were not misleading information about incomplete and argument raise the ad failing tive for Matheney if he penalties available here. vanced Specifically, to death. was not sentenced (1) did not Matheney argues that the court: (g) Unanimity and Burden jury penalties for of the available Matheney claims the inform Mitigators. Proof for Indiana, can earn a defendant Penalty phase In the State of twelve states: 18. final instruction apply against Indiana, good to for behavior penalty credit sentence, if the death In the State of credit of a maximum allowable imposed, a with for is is not the sentence murder (30) (60) (50%) thirty sixty fifty percent to of the sentence im- [sic] fixed sentence of from (40) penally forty years. presumptive is posed by the Court. spe- years. sentencing imposes a (T.R. 676.) The Court range. years cific within that number

903 (2) be Simmons “pre Matheney to explain holding claims did not define or burglary; correct.20 good “credit time for be sumptive” [sic] or (3)

havior”; explain not did discuss Also, say we cannot that the terms (4) sentences; and of consecutive possibility “presumptive penalty” good for and “credit imposing an grounds for did not discuss are such technical behavior” terms of art that claim on Sim Basing aggravated term. his understand them. See layman not could , Carolina, 512 v. South 114 mons U.S. 154 State, McNary v. 428 N.E.2d (1994), 129 L.Ed.2d 138 where S.Ct. (Ind.1981).Therefore, Matheney’s counsel were process re Matheney claims to find a due failing not request deficient for to clarifica juries correctly “be instruct quirement that tion, any prejudice nor has shown sentencing available about the ed alternatives to undermine confidence in the outcome so.as (Petitioner’s sentence,” Br. in lieu of a death trial. 104), Matheney argues that this instruc jury tion and the stated omissions misled Constitutionality 3. Indiana’s Statute that, impression by leaving them with “the Matheney alleges that his trial counsel death, jury impose decline to should preserve failing were ineffective for nu- serving Matheney could be released after objections merous constitutional to the 104.)19 (Petitioner’s years.” fifteen Br. at penalty Indiana death statute. rejected many concedes that we have of his The instruction was a correct (Petitioner’s challenges, constitutional Br. at statement of the law at the time of Mathe 106); appear to offer them con- ney’s to request trial. Counsel’s failure in (see id.), templation appeal, though of federal burglary, for or the struction on rejected many of these have also been regarding instructions consecutive attendant courts of the United States. For those con- terms, aggravated sentences and did challenges already stitutional decided ad- may attorney make ineffective. An them claims, versely Matheney’s this Court jury reasonably desire not to remind a delib position not choose to “does reassess its erating a death sentence that the defendant this time.” Daniels v. guilty felony of another serious was found (Ind.1988). choose, Even if we did so Also, Simmons addition to murder. however, highly unlikely it would be that we years than we handed down more two prior performance counsel’s sub- would find after Matheney’s appeal, ease on direct decided failing challenges, for to make these standard after his trial. Because Sim years and four already considering spoken we have mons was not available to trial or contrary concerning Accordingly, them. we counsel, appellate it cannot be said ei alleged failings prior will here the address failing challenges ther were to make a ineffective counsel as to constitutional upon already adversely Matheney by if holding, claim based its even what addressed assertions, say Contrary Matheney’s impression, 19. Counsel’s brief leaves its own this case ing, "Matheney tion; prejudiced by this instruc process requires jury does not hold that due that the time the studies show amount of correctly sentencing be about alterna- instructed jury actually a defendant will is a believes serve tives available in lieu of a death sentence. Nei- very important deciding factor in whether to imply ther does it fear of a defendant penalty. the death Simmons v. recommend South Carolina inherently "getting years out” after a term of 159], U.S. at 114 S.Ct. at [512 jury’s deliberation. influences death sentence (Petitioner’s (emphasis Br. at add 2191.” specifically capital deals Simmons with ed).) citation, Review of Simmons at that how ability to future defendant's rebut assertions of ever, shows much less than state argued dangerousness the State when has ment would have us believe. Instead of there jury, a "the issue before the situation where "studies,” multiple being single pub there was a prison actual duration of the defendant’s sen- opinion survey. being represen lic Instead of it Simmons, indisputably tence is relevant." (and, thus, juries general tative here), relevant U.S. at S.Ct. at 2194. exclusively sample pool was limited qualified jury duty. South Carolinians See Ind.Professional Conduct Rule 3.3 cmt. Mislead ing Legal Argument. 904 suggestion, coun- light In of this this Court.21 failing for to claim was not ineffective sel (a) Cause for Finding of Probable otherwise.25 Matheney says Eligibility. Capital Trial (b) Aggra “Felony/Murder” The that Indiana argued should have Matheney the “felo claims that vator. 35-50-2-9(a) the United § violates Code penalty in the ny/murder aggravator” death facially Indiana23 Constitutions and States22 and Indiana Consti violates the U.S. statute a defendant it allows applied as because and is facially applied as because it tutions and jury “death-qualified” to subjected to be overbroad, fails to narrow mean vague, de having a neutral fact-finder first

without death-eligible murdere ingfully the class of - proceeding, termine, after an adversarial 35-50-2-9(b)(1) pro § Indiana Code rs.26 Accord eligibility. cause for death probable vides: counsel, death- studies show ing present to likely (b) for as aggravating to vote circumstances are juries to be more qualified juries. qualified than non-death follows: conviction to seek prosecutors have discretion Because (1) committed the murder The defendant Matheney that argues penalty, the death intentionally killing the victim while impermissibly use their discretion they can attempting to commit committing or juries just in death-qualified to impanel to arson, molesting, crimi- burglary, child securing a conviction crease their chances conduct, kidnapping, rape, nal deviate having jury which is or of in close cases robbery. or prosecution-oriented.24 more 50—2—9(b)(1) (West § Ann. Ind.Code 35 — (amended 1993). Supp.1989) concedes, however, Matheney As Matheney phrase “while claims that has held the use Supreme Court U.S. attempting to commit” is committing or juries to be constitutional. “death-qualified” Harriss, 347 McCree, vague, violating United States v. 162, v. 106 S.Ct. Lockhart 476 U.S. 808, 812, (1986). 612, 617, 74 98 L.Ed. 989 1758, doing, S.Ct. 137 In so U.S. 90 L.Ed.2d (1954) “give (stating that criminal codes must juries death-qualified to that court referred ordinary intelligence fair notice 180, person Id. 106 at 1768. “impartial.” S.Ct. as Ind.Ap applied” waived. Matheney make this "as claim is apparent has little interest 21. It State, 8.3(A)(7); pellate 538 Rule Armstead v. colloquy quoted supra See in these contentions. cf. (Ind.1989) (finding appellant's N.E.2d present as free- part Present counsel them III.A. appeal sup for failure to contention waived on they challenges, are standing but constitutional argument port cogent facts from claim with they except on the to him as reflect not available record). prior performance of counsel. 26.Matheney our death also claims that Fifth, Sixth, Eighth, Four- Specifically, its 22. United States and Indiana consti statute violates Amendments. teenth prohibitions against jeopardy. double tutional However, appear arguments to be his convoluted Twelve, Specifically, Sections Thir- 23. Article Matheney upon premised the notion that Sixteen, teen, Fourteen, Twenty-three. (See felony Br. convicted of murder. Petitioner’s charged Because potential Although Matheney 24. claims that murder, Ind.Code Ann. convicted of intentional many provi- "prosecutorial abuse” violates for 35-42-1-1(1) (West 1986), felony § and not mur Constitutions, the U.S. and Indiana sions both 35-42-1-1(2) (West Supp.1989) dered. (amended allege any denial violation other than he fails 1989, 1993), 12), (T.R. at he has no (See jury. right impartial to an Petitioner’s argument. standing State, to make this Minnick 107-08.) Accordingly, any other viola- Br. at (Ind.1989); N.E.2d Fleenor v. alleged arising potential from this for abuse tions Therefore, (Ind.1987). are waived. trial counsel was not ineffective standing failing make a lacked claim he applied" Although makes an "as make. To the extent claims tending allege any jeopardy premised upon challenge, facts violation inten he fails double felony aggravator, prosecutor in his case used his tional murder and the murder show that the argument, cogent impermissible for lack of power his claim is waived to achieve the ends called Armstead, 8.3(A)(7). Thus, Ind.Appellate by Matheney. Matheney's Rule contention failing at 945. N.E.2d his trial counsel was ineffective 905 forbidden”). majority a of contemplated conduct is homicides are committed that his 109). (Petitioner’s crime, conjunction Other than this in Br. at with another this has however, assertion, Matheney provides specific aggravator no relevance to the bald person here, argument as to how a no evidence or issue which does not “the com- make fail ordinary intelligence would understand any other crime” an aggravating mission more, he offers little circumstance, what it means. Without only but the commission of cer- attorneys claim that his were’ grounds for the tain We are unable to enumerated-felonies. failing make this meritless ineffective for Matheney’s lawyers original find ineffective claim. failing to make this claim. Matheney also claims that Ind. (c) “Lying in Aggravator. Wait” 50—2—9(b)(1) “overbroad,” § is be Code Matheney argues lying ag- 35 — in wait commit majority cause “the of homicides are Ann. 35-50-2-9(b)(3) gravator, § Ind.Code conjunction crime. ted in with another See (West Supp.1996), facially vague, Oklahoma, 601, 413 U.S. 612 [93

Broadrick v. vague applied. begin and overbroad as We (1972).” 2915-16, 2908, 37 L.Ed.2d 830] S.Ct. by rejecting challenge his overbreadth here 109.) (Petitioner’s Br. at over- rejected for the same reason we it above however, is confused and argument, breadth pertaining felony aggravator. murder misplaced. Overbreadth is a constitutional IV.C.3(b). supra part See Next we note that applied in primarily the First doctrine rejected already we have ineffec designed pro context. It is Amendment regarding challenge tive assistance claim persons having legiti tect innocent from jury given instructions regarding this constitutionally pro mate exercise of their IV.C.2(d). aggravator. supra part See For of a tected freedoms fall within the ambit there,, reject the reasons set forth we broadly more than needed to statute written repeated applied” challenges “as here. proscribe illegitimate unprotected con Finally, Matheney challenges interpre- our Broadrick, duct. See 413 U.S. 93 lying aggravator tation of the in wait as 2915-16; Tribe, H. S.Ct. at Laurence Ameri applied appeal opinion in our direct of his (2nd § can Constitutional Law 12-27 case, arguing language that under we ed.1988). Matheney argument makes no as summing up support used facts legitimate might possibly fall to what conduct affirmance, lying aggravator our “the wait felony aggravator, within the murder nor apply virtually any kill- could intentional he. could (Petitioner’s 111.) ing.” Actually, Br. at claims that also Indiana argued meaning appellate counsel of this 35-50-2-9(b)(1) Godfrey § Code violates persuasion statute with sufficient that it drew Georgia, 446 U.S. S.Ct. very point. Matheney, on this dissent (1980), by failing to narrow L.Ed.2d 398 (DeBruler, J., concurring at 1209 N.E.2d meaningfully eligible the class of murderers dissenting). carry day, did not Counsel penalty. for the death Besides this asser hardly but was ineffective. tion, only argument Matheney makes is (d) majority Aggravation- are commit Contentions. that “the homicides (Pe conjunction Matheney claims that Indiana Code 35-50- ted in with another crime.” 109.) 2-9(b), Matheney’s argument aggravating sets out the cir- titioner’s Br. at which . First, justify imposition of the for at least two reasons he cumstances that fails Indiana, proposition Eighth provides authority no for his death violates the majority are Fourteenth Amendments of the U.S. of homicides committed Constitution, One, conjunction crimes. and Article Section Six- with other We would be statute, teen, says very reluctant to find a which enters of the Indiana He Constitution. specifically fails to state presumption our courtroom “clothed with the statute constitutionality,” Majors, charged aggravators may considered Sidle v. be (Ind.1976), sentencer, omission, 206, 209, allowing, by thus Ind. unsupported uncharged and invalid single, unconstitutional on a as consider sentencer Second, aggravating of fact. even if it were true circumstances. sertion 906 distinguish findings not its as to the of his constitutional and did support

In federal Florida, Espinosa v. claim, Matheney penalty relating cites from death those sen- 2928, 120 1079, 1081, 112 2926, S.Ct. imposed non-capital felony U.S. for 505 tences convic- curiam). (1992) (per Espinosa 854 tions. See id. L.Ed.2d at 953-55. weighing “the of an invalid that does- state trial, jury In the instructions Eighth the circumstance violates aggravating clearly only jury informed that it could the (citations omitted), Amendment,” id. (and valid) aggrava- charge,d the consider aggravator at issue the find the does specifically The trial court tors.28 mentioned e However, ob as w have invalid. case27 charged only aggravators the two in its sen- served, Espinosa and similar federal cases (Id. 701-02.) Thus, tencing statement. at upon upon vagueness, not whether focus 35-50-2-9(b) § that the fact Indiana Code among' aggravators used were those the “only specifically does not state that listed penalty by applicable the death prescribed irrelevant, may is aggravators be considered” statute; they appear not therefore do clearly because sentencer consid- aggravating cir non-statutory suggest that aggravators. Accordingly, valid ered necessarily are invalid. To the cumstances Matheney’s trial counsel were not ineffective statutory aggravating cir contrary, once failing for to make assertion he advances the have the class of cumstances circumscribed here. penalty, for persons eligible the death require Constitution does federal (e) Mitigation Contentions. aggrava ignore possible sentencer other arguments why various makes Indiana ting circumstances to the extent authorized 35-50-2-9(c), § specifies the Code which mit- capital sentencing statute. in a state’s igating a sentencer is to con- circumstances 862, (1983), Stephens v. 878- Zant 462 U.S. trial, penalty phase capital at the of a sider 2733, 2743-44, 79, 77 103 S.Ct. L.Ed.2d Eighth violates the and Fourteenth Amend- 235. Constitution, to the U.S. ments and Article State, (Ind. 928, Bivins v. 642 N.E.2d 954-55 One, Twelve, Thirteen, Sections and Sixteen 1994). assessment, on this we held in Based constitution.29 Indiana’s trial Bivins that a court’s consideration of sentence, non-statutory aggravating circumstances did The opening section Id. Eighth not violate the Amendment. at states, mitigating “The circumstances that may be considered this section under are as 35-50-2-9(c) § follows:....” Ann. claim, Ind.Code support In of his state constitutional y added). (West Supp.1996) Bivins, (emphasis Citing 928, N.E.2d cites 642 Mathene precedent holding federal that a sentencer nonstat- where we held consideration of may precluded not refuse to Ar consider or be utory aggravating violates circumstances evidence, considering One, Sixteen, mitigating from Mathe- ticle Section Indiana Bivins, Id. ney “may” at In claims that makes 955-57. the term Constitution. impact optional, of mitigating considered victim evidence consideration evidence trial court 671.) (Id. jury seeking penalty.” Espinosa trial court in the death 27. The instructed The jury potential aggravating circumstance it was then the State "[i]f that a instructed failed " ‘especially prove beyond a find was that the murder was reasonable doubt the existence could wicked, evil, ” circumstances, Espinosa, aggravating atrocious 505 at least one of or cruel.’ 1080, (quoting you penally.” S.Ct. U.S. 112 at 2927 shall not recommend the death Fla.Stat. 674.) 921.141(5)(h)). (Id. § jury 29.Although Matheney provisions State 28. The was instructed that the could cites these charging heading, rarely provides separate by legal the de- he seek the death analysis concerning committed murder either “intention- Indiana Code 35-50-2- fendant 9(c) ally killing committing burgla- the victim and these Indiana constitutional sections. while (T.R. 666.) "by lying Accordingly, except arguments specifi ry,” wait.” for those upon cally providing separate legal analysis, jury was then instructed that “the is such burden State, prove you beyond are v. State to a reasonable these claims waived. Tobias 666 State, (Ind. 1996); aggravating set forth 72 n. 1 St. John v. doubt the circumstance N.E.2d (Ind.1988). charging State N.E.2d information wherein the Smith to con accused.” 547 N.E.2d to refuse allowing sentencer thus (Ind.1989). mitiga definition of disagree. This mitigating evidence. We sider simply tion is within common understand “may” sentence The term v. San average juror. mitigators ing of the any one of the listed- means that Canfield dock, (Ind.1990) permissible following sentence are (technical consideration, provi legal phrases used in in including the “catch-all” defined). states, structions should be “Any other circumstances sion which Id.; see su appropriate for consideration.” (Petitioner’s Br. at think the We IV.C.2(e). pra part interpretation This is the ordinary breadth of this definition and the one, particularly when more reasonable understanding “mitigating” of the word is 35—50—2—9(e)(2), § which light of viewed make such that counsel who elected not it can recommend requires jury, a before present acting the contention were within the death, any existing mitigating to consider scope promise of the Sixth Amendment of by outweighed it in order to find evidence effective counsel. the code charged aggravator(s). Because Matheney argues miti also that issue, light in the of the when read section history gating significant circumstance “no of sections, not make the relevant does other conduct,” § prior criminal Ind.Code Ann. 35- optional, Mathe- mitigation consideration (West 50-2-9(c)(1) Supp.1996), is unconstitu for ney’s trial counsel was not ineffective adjective “significant” tional because the cre failing argument to make the advanced here. unacceptable “an risk that the sentencer ates says Matheney counsel should have will view the defendant’s record in terms of 35-50-2-9(c) up § argued that Ind.Code sets aggravation only, thereby converting the ab mitigating barriers to the consideration mitigator aggravator.” sence of a into an first, ease, capital by falling (Petitioner’s 116.) evidence a Br. at We see no reason specify only prerequisite that to consider juries that a to assume would make such ing mitigating is its relevance evidence leap. Matheney’s lawyers earlier not fail did character, record, the circum defendant’s or by taking pass their client on this conten crime, and, second, by failing stances tion. provide any proof. standard of As to his Mathehey argues that also claim, Matheney provide any first fails to mitigator eigh less than “The defendant was speci insight why into the absence of such a (18) years age at the time murder teen prevent a sentencer from con fication would 35-50-2-9(c)(7), committed,” § is uncon sidering mitigating evi otherwise relevant only, stitutional because it considers chrono Thus, failing is dence. this claim waived logical age, considering rather than also argument support of present any cogent age. and intellectual defendant’s emotional Armstead, it. 538 N.E.2d at 945. As to his Matheney’s only support proposition, for this claim, reject we it for the reasons second however, single is “These are sentence: previously part IV.C.2(g). stated culpability than more accurate indicators of claims that Indiana also (Pe Lockett, supra.” chronological age. See 35-50-2-9(c) § is unconstitutional be Code 117.) argument titioner’s Br. at This is defi provide adequate cause it fails to an defini First, several it cites cient reasons. “mitigation.” support The entire tion of Ohio, Lockett v. 438 U.S. 98 S.Ct. contention, Matheney provides for this how (1978), proposition that 57 L.Ed.2d 973 for its ever, is as follows: age accu emotional are more and.intellectual culpability chronologi Supreme of Indiana has not- rate indicators of than The Court Lockett, supra,” “See age. only in- is “mitigating ... cal Not ed circumstances more, entirely inadequate citation virtually anything favorable to the withoút clude (amended 1993). 35-50-2-9(g)(2) jury may "The recommend the death Section court, (2) upon any mitigating if the ... cir- makes same mandate if it finds: § ag- hearing outweighed the court alone. Id. 35-50-2- cumstances that exist are currently 9(g)(2). re- gravating two sections are circumstance or circumstances.” Ind. These 35-50-2-9(k) (West 35-50-2-9(e)(2) (West Supp.1996). Supp.1989) § Code Ann. flected in receiving Judge Let- nothing in Lock- to this issue.32 After can find authority, but we answers, “intellectu- remotely suggests singer’s we directed ett which (whatever may age addressing any those supplemental al” “emotional” brief submit mean) culpability procedural are better indicators claims he substantive and/or Second, if age.31 even chronological than questionnaire. might regarding have something age is or “emotional” “intellectual” surrounding this issue show details particular in a that should be considered Judge Letsinger’s did fill out case, in- could be such evidence defendant’s questionnaire, questions of which were “catch-all” argued under the troduced and Multiphasic adapted from Per- the Minnesota how mitigator. cannot We see sonality Inventory, or “MMPI.”33 Whether failing to make ineffective for counsel were completed copy questionnaire of this here. the claim advanced counsel, however, provided Matheney’s is to Judge Letsinger open to doubt. states Trial Court’s Pre-Sentence Y. every questionnaire has used this with he Questionnaire Psychological has since at defendant whom he sentenced briefed, fully ease was Mathe- After this always least and claims that it has been Judge James Let- ney’s counsel learned presentence investigation re- attached to the death, Matheney to singer, who sentenced prior port to the defendant to submitted probation depart- regularly caused the had (Petitioner’s A-32, Supp. sentencing. Br. pre-sentence question- a ment administer A-54.) Matheney’s counsel states that trial in all sentenced his court. naire to defendants although generally he familiar with was abey- Matheney appeal his in moved to hold Judge Letsinger’s questionnaire, he does not post-conviction could return to so he .ance if specifically it was attached to remember discovery litigation regarding court for claims, Matheney’s presentenee report. He Judge Letsinger ques- had used the whether attached, however, if it had been it and, so, sentencing him if wheth- tionnaire there, he would not would still be because Florida, er that use violated Gardner (Id. A-59.) have removed it. 349, 97 51 L.Ed.2d 393 U.S. S.Ct. (1977). Matheney presents an from also affidavit perceived This the need for Court attorney practiced Judge information, another who has Judge so we Let- more directed presentenee a questions regards Letsinger’s court who received singer to answer certain fact, you rely Matheney's Question plurality opinion re- indicate 3: Did 31. In the seems to something sponses questionnaire sentencing chronological age is that should when that generally so, mitigation. please explain. be considered in See Lock him? If ett, (complain reproduce thought U.S. at 98 S.Ct. at 2967 Answer: It is difficult to scheme, (6) ing mitigation years processes Ohio’s “con that under which are over six old. I comparatively any sideration of a defendant’s minor do not think I relied on one answer or offense, age, generally would be any role in the If I had relied on of answers. series such, permitted, sentencing as to affect the deci questionnaire, spe- I would have answer in added). sion”) (emphasis cifically my findings. noted the same in written There was no such notation. Also, degree factors which assess defendant’s "culpability” legislature, are for the not the of completed Question copy 5: Was a of the statutorily judiciary, cre- to determine. Unless (sic) Matheney questionnaire or his counsel? aggravating ated circumstance violates some so, please state when and to whom. If defendant, right constitutional of a are not we questionnaire an exhibit Answer: Yes. The is determining aggrava- proper what forum for pre-sentence investigation report. "appropriate.” ting circumstances are or are not for the defendant received Whenever counsel pre-sentence, usually copy his of the which is questions Judge Letsinger and his cor- The (2) (1) days sentencing, he one or two before responding, opinion to our are answers relevant got copy questionnaire. of the as follows: A-53, (Petitioner’s A-54.) Supp. Br. at you questionnaire Question Did review a 1: pages long. by Matheney questionnaire three asks completed in con- 33.The It that was Alan yes questions, Superior or no answers to various such nection with Cause No. 45G02- Lake capable as "I seem to be about as as most others 9001-CF-22? (SeeAppendix Appellant’s Supp. around me.” Answer: Yes. A-57.) Br. at A-55— investigation report on his client rights by that did not the administration of psychological questionnaire questionnaire, per Rather, have a evaluation se. Mathe- (Id. A60.) Finally, ney’s to it. various attached Mathe- claims all rise or fall based upon ney presents deposition County’s allegation Lake did not have probation, preparation opportunity taken contest information director may which have post-conviction petition Reynaldo judge influenced the for the decision, Rondon, sentencing in which the because director testifies that given judge. this information completed questionnaire given Rondon’s Judge Letsinger, copies and that provide Indiana Code does that defen- routinely given were not to defense counsel. products dants receive presentence (Petitioner’s A-25.) Supp. Judge Br. at While investigation. particular prod- We find this Letsinger acknowledges that he reviewed uct, Letsinger questionnaire, an unim- Matheney’s completed questionnaire, he be pressive interpreted by persons one. As rely lieves that he did not on it when deter use, trained in its completed might MMPI mining appropriate sentence Mathe making have some value in certain sentenc- (Id. A-53.) ney. ing decisions. Rather than post- remand this ease to the arguments makes five conviction court so it can delve into a factual First, questionnaire. about this he claims legal involving morass three-page completed ques that failure to submit the questionnaire the judge says played trial no Matheney’s tionnaire to trial counsel violated in sentencing, role independently we will re Matheney’s process rights due as articulated proper view the aggravating mitigating Florida, 349, in Gardner v. 430 97 U.S. S.Ct. circumstances psychological ques absent the (1977) 1197, (re (plurality) 51 L.Ed.2d 393 tionnaire at issue and determine whether the manding for a sentencing hearing new death sentence in this appropriate, ease is based, part, death sentence that was State, 1060, v. Lambert N.E.2d by information not court to disclosed defense (Ind.1996), thereby making the claims surround prior sentencing hearing). to the ing psychological questionnaire this moot. Second, he claims this failure also violated right his to be free from cruel and unusual The charged aggravating circum punishment One, under Article Section killing by wait,” stances were “lying in Third, Indiana’s constitution. he claims that killing committing while attempting or § this failure violated Indiana Code 35-38-1- burglary. fully commit As discussed in our requires which sentencing court to previous opinion, there was abundant evi advise the defendant counsel of the factual proving aggravator dence beyond this a rea contents presen and the conclusions of the Matheney sonable doubt. Fourth, investigation. tenee he claims that (Ind.1992). N.E.2d 1208-09 There is the trial court’s review of “secret informa ample showing Matheney also evidence that sentencing prevented tion” in its meaningful broke into Bianco’s home with the intent to appellate Matheney’s review of death sen commit “breaking” murder therein. The as Finally, Matheney tence. any claims that pect is irrefutable: the evidence showed that by decision this vacating Court other than through gain entry he broke backdoor sentence death would violate his indicating into the house. The evidence rights under the U.S. and Indiana Constitu he breaking intended to commit murder after tions investigation because this Court’s strong: repeatedly in is also he had ex developed this issue “has not the facts suffi pressed an intention to kill Bianco and had ciently to substantiate his so; tried to solicit others to do he went based, claim that his death sentence is home, straight to Bianco’s in Mishawaka part, least in on information had Indianapolis, eight-hour stead of to on his (Petitioner’s opportunity explain.” no pass facility, from the correctional Pendleton Supp. Br. at only stopping drop at his mother’s home All of claims share one com- change her off and at home to Snider’s Rob. premise! They allege mon get shotguns; do not a violation his clothes and one of Snider’s upon these motivations people who act sider gun in hand Bianco with pursued and he “mentally ill” or unable to “conform only in her to be home dressed from her as she ran requirements of the upon repeatedly their conduct striking her underpants, Moreover, law,” other evidence be- per from the se. gun shattered catching until the her finding its things supported of fear court short fore the trial the blows. Few force of present. average was not mitigating drive the circumstance imminent death would any if across the 13. Thus there is little supra urban home note out of her See female to effect neighbor mitigator of a available weight to the house for this and over street proven ag- weight her of the two day significant dressed of the the middle gravators. underpants. arguably suggests some also The evidence jury fully consid- Finally, note that the we First, the defen-

mitigating circumstances. mitigators and rec- aggravators ered victim, extremely angry with the upon dant sentence conclud- the death ommended that he was under former, be evidence which could outweighed ing that latter emo- mental or (Ind.1992), of an extreme the influence Matheney, Bianco. when he killed tional disturbance psychologi- of the so the aid and did without (West 35-50-2-9(c)(2) Ann. Ind.Code reweighing questionnaire at issue. Our cal However, Letsinger Judge as Supp.1996). mitigators, statutory aggravators and tending noted, evidence was also there of the contents also without consideration to the level anger did not rise show that psychological question- Judge Letsinger’s it his actions. dominated naire, aggrava- that the amply demonstrates day outweighed mitigating tape ting after his arrest The video circumstances appropriate with and that death shows a calm demeanor circumstances disposition just after discussing the ease offense and this offender. for this entirely This attitude is consis- the fact. Conclusion description of his the witness tent with post-convic- judgment of the We affirm the fact. He had before the calm demeanor court. tion any of emotions out given no one indication witnesses had known control. These JJ., SELBY, DICKSON, and SULLIVAN his behavior from birth. and observed concur. A-2.) Thus, (Petitioner’s we can Br. at A-1 — BOEHM, J., separate opin- with concurs afford, slight weight. mitigator this ion. Second, sup- evidence was offered while Matheney suf- porting contention that Justice, BOEHM, concurring. caused mental disease which fered from a my dissent the reasons stated For through him life a distorted to view (Ind. (see, 675 N.E.2d 1060 Lambert v. reality, e.g., T.R. at version of deluded 1996), procedurally that a defective 2724-32), tending I believe evidence there was little penalty case sentencing order a death left alleged this mental disease show that resentencing. require remand for should literally other choice but that of no I conclude that this record cannot may have Based on Bianco. it killing Lisa While court were sentencing decisions of the others him that Bianco and caused to believe questionnaire described by unaffected keep him incarcerated conspiring to were majority opinion. appears It left the court’s rights, him his we are still deprive question probable than not why would more question of that belief with the parties. never communicated kill Bianco naire was necessarily drive as a death In a matter as sensitive legal, lawful simply sticking to instead of greatest care must be taken proceeding, the perceived unlawful exposing this avenues of pres opportunity to hate, parties all jealousy and ven- to afford conspiracy. While proceeding. in a full and fair ent their issues which are unde- geance may be motivations runs parte communication things slightest ex people to do sirable often lead Howev- tainting proceeding. do, the risk of do not con- they otherwise would not we er, I not believe I should refrain from do (cid:127)

participation reweighing in the di- exercise majority ground on the that I

rected designed not have to in- process

would it. For that reason I concur in all

clude III,

portions opinion, except part as to part concur in result as to III.

Having explained position, I do

expect necessary to find it it in reiterate unhappy

future cases but foreseeable presents

circumstance that the same issue again.

itself BAIRD, II, Appellant-

Arthur Paul

Petitioner, Indiana, Appellee-Respondent.

STATE of

No. 54S00-9304-PD-434.

Supreme Court of Indiana.

Dec. 1997.

Rehearing Denied March

Case Details

Case Name: Matheney v. State

Court Name: Indiana Supreme Court

Date Published: Nov 24, 1997

Citation: 688 N.E.2d 883

Docket Number: 45S00-9207-PD-584

Court Abbreviation: Ind.