*1 OVERSTREET, Dean Michael (Petitioner
Appellant
below), Indiana, Appellee
STATE below).
(Respondent No. 41S00-0306-PD-249. C.J., separate opinion filed a as Shepard, VI, B, Sullivan, J., in which con- part of Indiana. Supreme Court Boehm, J., in the concurred curred Nov. result. J.,
Dickson, separate opinion filed a VI, B. part J., Boehm, separate opinion as to filed VI, part B. *5 Carter,
Steve Attorney General of Indiana, Martin, James B. Deputy Attor- ney General, IN, Indianapolis, Attorneys Appellee. for RUCKER, J.
Summary
A jury convicted Michael Dean
murder, rape,
Overstreet of
and criminal
confinement in connection with the 1997
strangulation
18-year-old
death of
Kelly
Eckart.
recommended a sen
death,
tence of
the trial
accepted
appeal
recommendation. On direct
we
affirmed Overstreet’s conviction and sen
tence of death. Overstreet v.
(Ind.2003),
denied,
N.E.2d 1140
cert.
U.S.
S.Ct.
157 L.Ed.2d
(2004). Thereafter,
Overstreet filed a
petition
post-conviction relief,
which
court denied after a
*6
hearing. He now appeals that denial rais
K. Carpenter,
ing
review,
Susan
Public Defender of
several issues for our
at least
Indiana,
Schutte,
Steven H.
Deputy Public
two of which are waived
they
because
were
Defender,
Hinesley, Deputy
Thomas C.
known and available at the time of Over-
Defender,
Cleary,
Public
Deputy
Kathleen
street’s direct appeal,1 and another three
Defender,
IN,
Indianapolis,
Public
Attor-
are barred because of the doctrine of res
neys for Appellant.
judicata.2
remaining
We address the
is
jury
1. As framed
Apprendi
Overstreet the two issues are:
was instructed consistent with
(a)
Overstreet,
pretrial
Ring."
incompetence
"Overstreet’s
and
to as
sues, we which and tell assis wife Melissa the effective contact Overstreet’s denied Overstreet was (b) counsel; pick up was Overstreet him the van and tance of trial her drive appellate range. assistance nearby the effective at a rifle couple denied of hours (c) a fair counsel; receive did Overstreet range rifle around arrived at the Melissa (d) proceeding; approached As 3:30 a.m. Overstreet to be executed be incompetent Overstreet unbut- van, sweating, his shirt was he was illness. of his mental cause toned, carrying a blanket and and he was why he was out Melissa asked rifle. When Facts3 range, Overstreet re- late at the rifle so facts is set recitation of the A detailed concerning anyone if asked sponded that appeal. See opinion on direct forth in our she should tell them his whereabouts Overstreet, them supra. We summarize drinking with friends. Melissa he was out 30, 1997, September On here as follows. home, he went to drove Overstreet body Kelly Eckart clothed partially bed. Camp near in a ravine was discovered accompanied following day, Melissa County. had She Atterbury in Brown he cleaned strap from to a car wash where to death with Overstreet strangled been shoestring Despite from her the fact that and a the back of his van. her bib overalls before, early days described part shoes. Three the front of the van was September morning “trashy,” spent hours over Melissa as Overstreet telephoned his brother Scott Overstreet van. cleaning only the back of the hour to meet him at and asked Scott Tr. at 3883. complied and in Franklin. Scott motel body Eckart’s About a month after parking lot. in the motel met Overstreet discovered, tipa that led to police received that he needed informed Scott Kelly about Ec- questioning Scott Edinburgh. him in his van Scott to drive police to disappearance. kart’s Scott led ride, into the Over- About fifteen minutes Camp Atterbury, gravel turnaround changed his street told that he had Scott per- police where found several of Eckart’s At- Camp togo mind and now wanted to sonal items. why he wanted terbury. questioned When *7 warrant, As a result of a search investi- Atterbury, re- go Camp Overstreet gators recovered evidence from Over- plied, “I Tr. at 3226. Scott girl.” took a home, including the blanket Over- street’s in a remote drove to a turnaround gravel carrying night street was the Melissa Atterbury where he left the Camp area of range. They him picked up the rifle doing Before so girl and Overstreet. map a hand drawn of an return in a cou- also recovered Overstreet asked Scott County Camp area of Brown near Atter- ple up. him Scott re- pick hours and designated, previously by differently an issue attempts this issue to revisit claiming rendered ineffec- now that counsel in a defendant's considered and determined tive To Seek Dismissal assistance for "Failure appeal post-conviction for re- direct is barred Remedy Discovery Request Of For Death As adjudication grounds prior on view —res peti- Appellant at 51. A Violation.” Br. of judicata. Id. post-conviction tioner relief cannot es- for cape preclusion merely by the effect of claim transcript. 3. refers to the trial "P-Cr." "Tr.” using language phrase an issue different transcript post-conviction refers to State, alleged Reed v. and define an error. proceedings. (Ind.2006). Although 856 N.E.2d Ec- jeopardy grounds the same area where On Indiana double bury depicting we recov- body was discovered. Fibers reduced kart’s Overstreet’s conviction for crimi- consistent ered from Eckart’s shirt were felony nal confinement as a Class B to a taken the blanket. And with fibers from felony, D vacated Class his sentence of found on Eckart’s overalls were con- fibers twenty years offense, for that and remand- with fibers recovered from inside sistent ed the cause to the trial court for resen- testing van. DNA revealed Overstreet’s Thereafter, tencing. pe- Overstreet filed a body sperm found inside Eckart’s relief, tition for post-conviction which the on her underwear was consistent with post-conviction court denied after a hear- of Overstreet. ing. appeal This followed. Additional facts are necessary. discussed below as History
Procedural Standard of Review for Post- charged with mur- The State Proceedings Conviction der, murder, felony rape as a Class B felony, a B and confinement as Class felo- petitioner The post-convic a ny. sought Tr. at State proceeding tion bears the burden of estab penalty aggravating death based on three lishing grounds by preponder for relief (a) circumstances: Overstreet committed ance of the evidence. Fisher v. intentionally killing Kelly the murder (Ind.2004). N.E.2d appeal When committing Eckart or attempting while to ing relief, the denial of post-conviction (b) rape; Kelly commit Eckart was the petitioner position stands of one rape victim of for which Overstreet has appealing negative judgment. from a (c) convicted; Kelly been Eckart was prevail post-convic To from the denial of victim confinement which Over- relief, petitioner tion must show that the street has been convicted. Id. at 962. unerringly evidence as a whole leads April unmistakably The trial was held from to a conclusion opposite that May through post-conviction 2000. The convicted reached court. charged Overstreet as and recommended Weatherford (Ind.1993). Further, an in- penalty. conducting death After dependent evaluation the trial court ac- findings this case made of fact and cepted jury’s recommendation. conclusions of law in accordance with Among things 1(6). other the trial court deter- Indiana Post-Conviction Rule Al proved beyond mined that the State though post-convic we do not defer to the reasonable doubt that at least one of the conclusions, legal post- tion court’s “[a] charged aggravators, kill- intentional findings judgment conviction court’s ing committing while rape, outweighed upon showing will be reversed evidence, mitigating and that clear error-—that which leaves us with a death appropriate was the sentence. The firm definite and conviction that a mistake *8 trial judgment court then entered for the Ben-Yisrayl has been made.” v.
murder, rape, and B felony Class confine- (Ind.2000) (citation 102, N.E.2d 729 106 ment convictions and sentenced Overstreet omitted).
to imposed death. The trial court also years
consecutive Standard of for Ineffective twenty sentences of Review each of the criminal Assistance of Counsel rape and confinement convictions. complaints Most of Overstreet’s appeal alleged shortcomings
On direct we affirmed center on the of both Over- appellate lawyers. street’s convictions and death sentence. his trial and To estab 152 jury impan- that was grand to the alleging a viola sented claim a post-conviction
lish investigate Scott’s involvement eled to right to ef Amendment Sixth tion of the trial court Kelly Eckart. The counsel, the death of a defendant fective assistance counsel motion. Thereafter granted the post-conviction the before must establish specifically requesting in filed a motion set forth components two jury informa- 668, following grand additional Washington, 466 U.S. Strickland (1984). prosecutor made tion: comments L.Ed.2d 674 104 S.Ct. grand the case to the presenting 120 when 529 U.S. Taylor, Williams instructions, (2000). charges or First, and the jury, 146 L.Ed.2d S.Ct. charges any regarding information per that counsel’s must show a defendant considering. Strickland, jury grand which the was deficient. formance was initially entered an order The trial court requires This 2052. at 104 S.Ct. U.S. upon But the State’s granting the motion. representation fell counsel’s showing that motion, trial court reconsidered its or- standard of reasonable objective an below and, an camera conducting after der made errors so seri and that counsel ness information, de- requested review functioning was not that counsel ous motion. Counsel intended nied counsel’s to the defendant guaranteed “counsel” Second, interlocutory appeal from the pursue an a de Amendment. Id. the Sixth But missing trial court’s order. after per that the deficient must show fendant deadline, filing appellant’s he tendered an This defense. Id. prejudiced formance with a Appeals along to the Court of that counsel’s brief showing errors requires appeal. motion for leave to file a belated deprive as to the defen were so serious trial, Appeals The denied the motion meaning a trial whose Court of a fair dant post- At the appeal. and dismissed the preju Id. To establish result is reliable. proceedings, conviction trial counsel testi- dice, must show that there is a a defendant that, sought that he the materials in order but for coun fied probability reasonable errors, challenge the manner in which the State the result of unprofessional sel’s in- presented grand to the Scott’s would have been different. proceeding Kelly A volvement Eckart’s abduction at S.Ct. 2052. reasonable Id. to un murder. probability is one is sufficient in the outcome. dermine confidence court determined Further, pre performance counsel’s per that trial counsel rendered deficient effective, defendant must of sumed by missing filing formance the deadline for strong convincing
fer evidence to over However, appellate an brief. the court Ben-Yisrayl, come presumption. this that Overstreet failed to establish he found N.E.2d prejudiced as a result of the failure. was States, See Kitchen v. United 227 F.3d I. (7th Cir.2000) (finding Ineffective Assistance failing pursue counsel was deficient in Counsel —Pre-Trial deficiency appeal, prej but was not udicial). agree with the post-convic contends trial We At trial the counsel rendered ineffective assistance for tion court. State elicited testi timely interlocutory target that he failing perfect mony from Scott *9 jury investigation. Trial counsel appeal. grand The essential facts are these. Scott, trial, aggressively cross-examined chal Prior to counsel filed motion re credibility, discussing his con- questing transcript pre- lenging and exhibits his murder, night duct agnosed on and ex- Overstreet with Schizoaffective Disorder, ploring testimony grand his before the which is a combination of schizo- jury. During closing remarks trial phrenia major counsel depression. and App. at argued testimony that Scott’s was not wor- 680. No evidence of Overstreet’s mental thy of belief. Overstreet has made no presented illness was during guilt showing that the post-conviction phase court’s concedes, of trial. Overstreet “In- finding clearly erroneous. sanity was not a theory, viable as no ex- pert prepared testify that [he] was
II. unable to appreciate the wrongfulness of his Appellant actions.” Br. of at 35. But Ineffective Assistance of Counsel— complains trial counsel Guilt Phase4 nonetheless should presented have evi- Overstreet sets forth a number of asser- dence of his mental illness. According to tions that he contends demonstrate counsel Overstreet, “If trial counsel had contested rendered ineffective assistance during the Overstreet’s mens rea due to ill- mental guilt phase Consolidated, of trial. re- ness, could have option had the phrased, reordered, those claims are returning a verdict Guilty Mentally but (a) as follows: present counsel failed to (GBMI).” Ill (b) illness; evidence of Overstreet’s mental impeach counsel failed to adequately the The flaw in this contention is that (c) wife; testimony of Overstreet’s theory defense centered on object counsel failed to to an alleged evi- attempting prove that someone other dentiary harpoon. We address each asser- than offenses, committed the tion in turn. namely, Overstreet’s brother Scott. Trial counsel had no reason therefore to raise
A. Evidence Mental Illness the issue of capacity. mental Arguing that The record shows that the time Overstreet lacked the mental capacity to of trial Overstreet had been diagnosed by form the necessary intent would have been at least four mental professionals. health contrary to claim. his Overstreet contend Three mental health professionals diag crime, ed that he did not commit the nosed suffering Overstreet as from “schi- that he did not intend to commit the zotypal personality disprder” and found crime.5 See Meredith v. 679 N.E.2d (Ind.1997) that he had a “severely personal disturbed (rejecting the claim 5078-79; ity structure.” Tr. at Tr. at 5092 that counsel rendered ineffective assis (Pre-trial reports psychiatrist from failing both tance for capaci to raise diminished Fitzgerald Navy Dr. psycholo ty clinical during guilt phase of trial where the gist Hughes A.S. were submitted part theory defense was that someone other CC.). of Defendant’s Exhibit Another di- than the defendant committed the mur- Indeed, heading 4. Under discussing “Omitted Evidence Con- 5. his case with his mental sistent With Defense Presented” Overstreet professionals, health Overstreet not in- laundry sets forth a list of "Other Evidence sisted that he did not commit the crimes for Implicating Appel- Scott Overstreet.” Br. of charged, which he was he also insisted that authority lant at 53. He cites to no memory he had no of much of the events cogent argument supporting makes no occurring evening Kelly on the Eckart was claim of ineffective assistance of counsel. App. abducted. Any heading such claim under this is waived. 46(A)(8)(a); Appellate See Ind. Rule Harrison (Ind. 1999). *10 der). cleaning for trial is a of the van occurred on another choice of defenses day. Evey agree with the strategy. trial Van We of matter (Ind.1986). court. State, N.E.2d demonstrate that has failed to Overstreet Evidentiary Harpoon C. strategic fell below an decisions
counsel’s standard of reasonableness. objective prior that The record shows
trial the trial ordered certain evi Inadequate Impeachment B. custody in the of the dence held Indiana to a laboratory State Police released DNA complains counsel that Overstreet laboratory designated by the defense assistance for their ineffective rendered sought At trial the to intro team. State Impeach Melissa Overstreet “Failure to duce items including several of evidence Report.” Br. of Investigator’s Lead with samples hair in the blood and held State at the facts 50. As recounted Appellant laboratory. establishing a chain Police of this Overstreet’s wife opinion, section custody, in response questioning and van-cleaning incident oc about testified by the the witness State’s twice day picked curring up the after she Over- testified that the items had been sent off range the Camp from rifle near street testing for additional at the request some Overstreet, Atterbury. According to the Tr. at attorney. the defense 4386. investigator ques the defense had lead for “Sir, Later, inquired, you’ve the State indi employer alleged who tioned Overstreet’s that that cated several the items we’ve that at work ly reported here that talked about we’ve admitted during the time testified he was Melissa laboratory were sent to the Defense’s for cleaning argues the van. Overstreet at testing; correct?” Id. 4368. Trial trial have used this infor counsel should objected at a bar counsel side noted “criti impeach mation to Melissa on this that he had allowed the answers to those point. cal” Id. questions custody, to show chain of but point We first that the critical observe argued goes any it, “if he farther with he’s cleaning itself. And was the of the van infringing right on the Defendant’s not to exhaustively trial counsel cross-examined present any shifting evidence the bur asking a range Melissa on this wide issue den, ask and we’ll for immediate mis [an] questions including her failure to dis- trial goes step if he one farther with it.” during close this information either her question. Id. then The State withdrew the grand jury testimony, pretrial deposi- her tion, given or two Characterizing various statements the earlier agencies. responses “evidentiary different law enforcement Tr. at harpoons,” Over- Second, during questioning complains 4070-71. out- in street counsel rendered jury, presence failing object side the Melissa testi- effective assistance for fied that she Appellant “[Overstreet] knew that first instance. Br. of at 52. van, First, evidentiary cleaned the out harpoon ha[d] but to sort occurs [she] when the time lines.” As post- prosecution places at 8959. inadmissible evi observed, impeach- conviction court dence before deliberate ment value of purpose prejudicing jury against information was at work at time Melissa testified and his defendant defense. Evans v. (Ind.1994). that he was cleaning the van was minimal N.E.2d in that she have merely assuming challenged testified Even testimony would inadmissible, that her dates wrong persuaded were that the was we it are *11 purpose present was introduced for the deliberate negating evidence aggravation. Rather, prejudicing jury. it ap We address each contention in turn. parent that the references were made in A. Stipulation Inaccurate
the context of the establishing State chain custody point on which the —a Overstreet complains about his higher “fungible” State bears burden for lawyers’ conduct of introducing into evi evidence, such as blood and hair samples. stipulation dence a informing jury State, (Ind. Troxell v. 778 N.E.2d Overstreet’s mental health experts ren 2002). short, In stipulation by absent a dered identical opinions diagnoses. defense, the State had to account for allegation This is based on the following whereabouts the evidence that was facts. Trial counsel retained the services not in possession its and control for a of three mental health professionals: Dr. Second,
period of time. in order to prevail Eric Engum, a neuropsychologist, Dr. on a claim of ineffective assistance due to Smith, Robert a clinical psychologist, and object, the failure to the defendant must Coons, Philip Dr. a forensic psychiatrist. objection show an would have been sus expert mental health that testi tained if made. Wrinkles v. penalty fied at the phase of trial was Dr. (Ind.2001) N.E.2d (citing Tim Engum. He had conducted a broad-rang (Ind. berlake v. ing psychological evaluation of Overstreet 1997)). agree that responses We consisting of a clinical interview and an “request attorney” the defense were extended examination, mental status in objectionable. objection An to this refer cluding psychological history and testing. ence and likely a motion to strike would Among things, other Dr. Engum testified have been sustained. But trial counsel that Overstreet had a “severely disturbed strategy cannot be faulted for his of declin personality structure.” Tr. at 5078. Dr. ing object. There was no need bring Engum concluded that Overstreet had a unnecessary attention to this matter aris “schizotypal personality disorder,” which ing as it did in the context of the State he described as “among the most severe of sum, establishing custody. chain of In personality disorders.” Id. at 5122. Overstreet has not shown that counsel’s According Engum, to Dr. Overstreet was objectively conduct was unreasonable. ill, severely mentally although he
psychotic at the time of the offense. Not III. ing degree, he also holds a law Dr. Engum testified that Overstreet’s mental Ineffective Assistance of Counsel— illness satisfied a statutory mitigating fac Penalty Phase tor in that it was an extreme mental or emotional disturbance that substantially argues lawyers that his trial impaired ability to conform were penalty phase ineffective at the requirements his conduct to the of law. (a) trial they: jury because misled the with § Id. at 5135-36. See Ind.Code 35-50-2- (b) stipulation; inaccurate failed to 9(c). (c) present mitigation evidence; additional allowed spectators in the courtroom to in possession Counsel was of a report victim; wear buttons with a picture of the from Dr. Smith that diag- showed he had (d) object did not wearing nosed Overstreet with a schizoaffective (e) handcuffs; failed to contest adequately disorder. He would testify later at the evidence; (f) the State’s DNA post-conviction hearing failed to that Overstreet’s personality any schizotypal a combination of disorder. disorder is schizoaffective event, testimony heard extensive depression. Dr. Smith’s schizophrenia *12 Engum Dr. the seriousness of from about that Over- pre-trial report concluded As Overstreet’s mental illness. recited significant a “played illness mental street’s testified, Engum among Dr. other above in instant of- involvement the role in his severely that men- things, Overstreet was App. at 681. fense.” ill, illness that mental tally Overstreet’s testify at the not called to Dr. Smith was an was extreme mental or emotional dis- Instead, counsel of trial. penalty phase turbance, and schizotypal that Overstreet’s pro- that stipulation a read into evidence substantially personality impaired disorder Dr. Smith part that pertinent vided ability to his conform his conduct to the Overstreet, he rendered an that examined of At requirements sentencing the law. opinion, opinion that “Dr. and Smith’s reports the trial court the of considered that of Dr. Eric identical to diagnosis [are] Engum.7 Dr. Smith Dr. both We Complaining at that Engum.” Tr. 5190. conclude not has Overstreet failed to to diagnosis is not identical Dr. Smith’s the show that conduct of counsel enter- Engum,6 Dr. maintains that of Overstreet an ing may into what have been inaccurate “false,” misled the stipulation that the was stipulation objective fell below standard present- jury, and that counsel’s conduct reasonableness, of but also he has failed to jury to amounts to ing stipulation the any prejudice from show resulted counsel’s assistance. ineffective conduct. argument is The crux of Overstreet’s Mitigation B. Additional Evidence
assertion that schizoaffective disorder is of mental than a schizo- more severe illness Overstreet contends that counsel ren- Thus, the ar- typal personality disorder. dered ineffective to failing assistance continues, gument testimo- Smith’s “[Dr.] present mitigation additional evidence to ny significantly have been would more jury. More he faults specifically coun- helpful mitigation case than to Overstreet’s testify for not two calling sel his addi- Appellant Br. at Engum’s.” 38. [Dr.] mental Dr. experts, tional health Smith Coons, failing present and Dr. “to Assuming accuracy of Overstreet’s family traumatic back- assertion, show that he has failed to Br. of ground.” Appellant at 39. penalty of trial phase outcome of the would First, it is not any one, have been different. at As for claim number lay necessarily jury all clear that a would argument recasts much of the same that appreciate is, the subtle and nuanced distinc- disposed we A. That under section he tion complains between a schizoaffective disorder and did not hear the post-conviction hearing, 6. Engum urge[d] At the Dr. Smith Smith and Dr. the Court to diagnosis that his was not the confirmed same mitigators present two find the defense in this Engum, as Dr. P-Cr. at and testified that case, namely, that the Defendant under diagnosed he had in fact Overstreet as suffer- the influence of extreme mental or emotional ing schizophrenia major depression, from disturbance when murder was committed i.e. Id. schizoaffective disorder. 522-23. capacity appreci- and that the Defendant's criminality ate the of the Defendant’s conduct Acknowledging stipulation 7. "eliminat[ed] require- or to conform to the that conduct testify,” Dr. Smith the need for substantially impaired ments of law was reports noted that doctors "[b]oth submitted Tr. at result mental disease.” 1300- attached to the Sen- were Defendant's tencing and that ”[b]oth Memorandum” Dr. testimony professionals health In of mental this case counsel did fail pres- diagnosed mitigating fact, Overstreet with a more ser- ent evidence. the trial recognized doubt, ious form mental illness. We decline to court that “without a he any childhood,” point address this further. Concern- had an abnormal and he “was two, ing very claim number is mis- raised in a dysfunctional family and pen- taken. The record shows that at the he does come from a broken home.” Tr. trial, witnesses, alty phase among other at 5460. After employing mitigation spe- presented counsel the testimony of Over- cialist and conducting an investigation into *13 street’s mother. She testified about the background, Overstreet’s counsel made father, substance abuse of Overstreet’s do- strategic decision concerning the type and alcoholism, mestic violence and gave extent of mitigating evidence present to picture detailed of jury. Overstreet’s childhood the This conduct does not fall below 4993-94; as well as his adult life. objective Tr. at an standard of reasonableness. addition, 5005-06. Overstreet’s school Spectators Wearing C. Buttons
and childhood mental health records were
detailing
introduced into evidence
Over-
complains
that counsel
street’s social and mental
history.
health
Object
Prejudicial
failed “To
To
Symbols
5066,
Id. at
Mourning
Of
In The Gallery.” Br. of Ap
pellant at 46. He implies that the wearing
This Court acknowledges
importance
by spectators
of buttons
was an attempt to
evidence,
of presenting mitigating
particu
influence
argues
it was inher
larly
Harrison,
in capital cases.
707
ently prejudicial
right
to his
to a fair trial.
N.E.2d at 783. We have held that
The record establishes the following
to present mitigating
failure
evidence con
facts. At
hearing
counsel,
stitutes ineffective assistance of
trial
counsel testified that at
warranting the vacation of a death sen
point
some
during
they
trial
observed
State,
tence.
(citing
Burris v.
558
some
spectators
gallery
wearing
(Ind.1990)
1067,
N.E.2d
1076
and Smith v.
picture
buttons with the
Kelly
of
Eckart.
State,
817,
(Ind.1989));
547 N.E.2d
822
see
25-26,
P-Cr. at
69. Affidavits from four
704,
also Prowell v.
717
jurors were
Although
also introduced.
(Ind.2001). But
say
is not to
slightly differently
worded
they provided
counsel is required
present
all available
part,
relevant
“I was able to observe
mitigation evidence.
Indeed after some
spectators
in the courtroom. Some of
investigation of a
background,
defendant’s
people
these
wore ribbons and button[s]
even a
present
reasonable decision to
no
pictures
Kelly
with
of
Eckart.” App. at
evidence of a defendant’s unstable child
793, 797, 799, 801. No other evidence was
“complies
hood
with the dictates of Strickland.”
presented concerning the buttons.
ris,
Thus,
Bur
158 t- spectators murder of a direct to remove buttons and a trial for the
audience
Braxton,
shirts);
702,
of a fair
deprived defendant
State v.
344 N.C.
prison guard
denied,
(1996)
953,
172,
112
trial),
(finding
502 U.S.
S.Ct.
er-
cert.
477 S.E.2d
177
no
(1991);
355
Norris v.
407,
L.Ed.2d
trial
refusing
ror in the
declare
Cir.1990)
(9th
828,
F.2d
Risley, 918
wearing
because
were
spectators
mistrial
wearing
(finding
presence
spectators
victims).
pictures
badges, with
of one
slogan
with
“Women
buttons
large
guided by
are
the United
We
States
in the
of a trial for
Against Rape”
audience
Supreme
recognition
Court’s
certain
without
and sexual intercourse
kidnapping
inherently
practices
preju-
courtroom
are
trial);
a fair
deprived defendant of
consent
they deprive
because
defendant
dicial
Franklin,
174 W.Va.
State v.
by creating
unacceptable
a fair trial
(1985)
(finding
the defen
S.E.2d
impermissible
coming
risk of
factors
into
fair trial when
deprived of a
dant was
Flynn,
Holbrook
play.
U.S.
sheriff,
including the
spectators,
several
(1986)
106 S.Ct.
89 L.Ed.2d
a trial
lapel
during
buttons
wore MADD
*14
(The seating
troop-
of
uniformed state
four
the
which re
driving
for
under
influence
the
immediately
ers in seats
behind
defen-
death).
sulted in
inherently prejudi-
at trial was
dant
not so
diverged widely in
jurisdictions
But
have
cial that
it
defendant
fair
denied the
of
charac
their
what has been
treatment
trial. Rather
must
...
question
“the
be
spectator-conduct
defendants’
terized as
presented
an
is
unacceptable
whether
risk
rejected
Several courts have
claims.
impermissible
into
coming
of
factors
preju
that defendants have been
claims
added)
(emphasis
play.”)
(quotation omit-
by specta
of
by display
diced
items worn
ted).
Polk,
See,
Billings
441
e.g.,
F.3d
tors.
decision,
Supreme
In a recent
the
Court
Cir.2006)
(4th
238,
(declaring that ex
247
contrary
it
to
determined was not
an
or
clearly
not
estab
isting precedent “do[es]
clearly
application
unreasonable
of
estab-
right
to a fair
lish that a defendant’s
federal
lished
law for
state
to hold
trial
violated whenever
article of
displaying
image
that buttons
the victim’s
conveys
at trial
clothing
arguably
worn
family
and worn
the victim’s
did
the
message about
matter before the
deny
right
the defendant his
to a fair trial.
—
denied,
-,
jury”), cert.
U.S.
127
—
Musladin,
-,
-,
Carey
U.S.
(2007);
932,
L.Ed.2d
166
716
State v.
S.Ct.
649,
(2006).
654,
127 S.Ct.
[0]ne that al- risk that argument lowing spectators at a trial can be criminal made that counsel’s inac- wear -visible buttons with the tion fell below objective victim’s standard of photo can improper raise a risk of con- reasonableness. The display part siderations. is no D. Use Restraints innocence, going guilt
the evidence or appeal the buttons are at once an next complains of (and sympathy for the per- victim Object “Counsel’s Failure To To The Use buttons) haps for who wear those Of Restraints In The Courtroom.” Br. of response and a call for some from those Appellant at 48. The facts are these. The who jurors’ part, see them. On the trial record regarding is silent *15 expected response could well seem to be appearance jury before the in restraints. a guilty, sympathetic verdict of and a At the post-conviction hearing one of Over- urge assuage to grief rage or lawyers street’s “yes” ques testified to the survivors awith conviction would be the tion of whether seeing he recalled Over- paradigm of improper consideration. street in in handcuffs the courtroom and question debatable is whether elaborated that he thought there no was the risk in a given case reaches the handcuffs, need for because counsel “never ‘unacceptable’ level. anything saw that would indicate [Over- going was to do (Souter, J., anything.” street] P-Cr. Id. at concurring 657-58 in the at questioned 68. Counsel was not further judgment). agree We with these observa- on this issue. tions.
In case this Overstreet has not shown Overstreet also introduced into evidence that counsel perform- rendered deficient at post-conviction hearing the affida- failing object ance for to jurors. or otherwise vits of In part they two relevant move trial directing occasion, court for an order provided, one I “[o]n recall that spectators not to wear buttons. jury already For ex- was present jury in the ample, there is in nothing this record that box when the defendant was brought into of, law, 8. Under clearly Antiterrorism and Effective established Federal as deter- (AEDPA) Penalty Death Act of 1996 a federal Supreme mined Court of the United grant petition court cannot a for a States; writ of or corpus by person habeas filed a in state custo- (2) resulted in a that decision was based on dy regard any rejected with to claim that was an unreasonable determination of the facts on the merits the state court unless the light presented in of the evidence in the adjudication of the claim in state court either: proceeding. State court (1) contrary resulted in a decision that was 2254(d). § 28 U.S.C. to, application or involved an unreasonable wearing App. “presumes during he this incident occurred handcuffs.” the courtroom introduced into Br. penalty phase.” Appellant 797. The State at [the] at jurors who from both evidence affidavits 48. “hap- foregoing incident
clarified that the
proposition
As
a defen
general
a
deputies
that
only once” and
“when
pened
jury
right
appear
dant has the
to
before
into the courtroom
brought Mr. Overstreet
restraints,
physical
without
such re
unless
jury
in
jury
had been seated
after
necessary
are
the de
prevent
straints
im-
box,
handcuffs
Mr. Overstreet’s
were
escape,
protect
present
fendant’s
those
at
mediately
he sat down
removed
courtroom,
in the
or to maintain order
at
table unrestrained.”
Id.
counsel’s
during trial. Bivins v.
(Ind.1994).
right
This
arises from
colloquy between
There was extended
principle
jurispru
the basic
of American
and the post-conviction
defense counsel
that
person
dence
accused of a crime is
(who
judge
also served as the trial
court
proven
until
be
presumed
guilty
innocent
case)
in
judge
about whether Over-
this
Wrinkles,
yond
doubt.
reasonable
being
dur-
alleging
street was
handcuffed
at
this presumption
N.E.2d
1193. For
guilt
penalty phase of trial.
ing the
or
effective,
against
must guard
be
courts
specifically
phase
asked which
When
practices
unnecessarily
mark the de
referring,
trial
to which Overstreet was
dangerous
sug
fendant as
character or
responded,
spe-
“We can’t be that
counsel
gest
guilt is a foregone
his
conclusion.
cific,
guilt
we don’t know whether it was
Holbrook,
(citing
567-68,
U.S.
jury,
phase
penalty phase,
or
front of a
Williams,
1340;
106 S.Ct.
Estelle
I
we
yes.
don’t believe
know.” P-Cr. at
U.S.
96 S.Ct.
responded,
111. The
“I have abso-
48 L.Ed.2d
(1976)).
lutely
my
no
that before
doubt
mind
jury
brought
every day during
that trial
arguing
counsel rendered
during
guilt phase,
selection and
object
ineffective
failing
assistance
that he was
handcuffed and he was not
*16
being
to his
handcuffed in front of the
the
shackled
I know
officers were
jury,
in part
Overstreet relies
on Deck v.
that regard....
under strict orders in
Missouri,
622,
2007,161
544 U.S.
125 S.Ct.
I,
penalty phase is another
I do not
issue.
(2005).
L.Ed.2d 953
In
the
that case
Unit-
regard
a
in
penalty
have recollection
to the
Supreme
ed States
Court declared that
111-12.
phase.” Id. at
shackling during
phase
routine
penalty
the
In its
of fact the
findings
capital trial,
a
case-specific
of
without a
court did
specifically
ques-
the
resolve
finding
security
justify
that
needs
the
jurors
tion of
of
phase
what
trial some
shackling,
pro-
violates a
due
defendant’s
might have seen Overstreet in handcuffs.
rights
beyond
cess
unless the state shows
However, in rejecting
ineffec-
shackling
a reasonable
that
doubt
the
did
claim,
tive
the post-conviction
assistance
633,
not contribute to the verdict.
Id. at
concluded,
“Petitioner
failed to
has
635,
that
saw
in hand-
are at least
with
who
Petitioner
during
guilt
First,
did so
the
claim.
Deck estab-
phase
cuffs
of the Overstreet’s
”
that
App.
apply
trial....
at 486.
lished
new rule
does not
Overstreet does
Deck,
retroactively
not contest
conclusion
this
but asserts that
here.9 Prior to
Su-
Lane,
288, 301,
1060,
(1989) (plu-
Teague
9. Under
v.
S.Ct.
489 U.S.
109
161
(Ind.2002) (Af
816,
precedent concerning shack
821
preme Court
jury
did not
ling
presence
in the
ter recognizing
presumption
the
of
trial.
penalty phase
capital
involve the
of a
longer
innocence no
applies to the sentenc
Rather,
shackling
involved
prior precedent
ing proceedings or the habitual offender
only
guilt.
before a determination of
See phase, the Court found it was not a funda
Allen,
v.
397 U.S.
90
Illinois
mental error
require
the defendant to
(1970)
1057,
(holding
S.Ct.
Therefore,
underlying
rationale of
cannot be deemed to
fallen below an
have
Supreme
pre-conviction
Court’s
prece-
objective standard of reasonableness for
penalty-phase
dent did not dictate the
rule
failing to
a
in
previously
anticipate
change
established
Deck. We have
the law.
Harrison,
(stating
guilt
observed the distinction between the
162
on
was not entitled to mistrial
not constitute
defendant
existing law does
in the
Strickland).
jurors
under
him in handcuffs
grounds that
saw
assistance
ineffective
jail);
v.
in transit
to
Smith
while
another rea-
claim fails for
(Ind.1985)
1189,
(finding
1144
475 N.E.2d
The
as well.
son
allowing jury
in
no abuse of discretion
found,
things, “It is obvious
among other
wearing handcuffs and
see defendant
in favor
totality of the evidence
from the
court-
being transported to
shackles while
any
obser-
on this issue
the Petitioner
house).
jurisdictions
have
A number
in handcuffs was
of the Petitioner
vation
view as well.10
something
and not
embraced this
and inadvertent
brief
regular
on a
happen
allowed to
the court
foregoing
that the
au-
acknowledge
We
App.
trial.”
at 486.
during
basis
But for reasons
thority pre-dates Deck.
challenge
finding.
this
does not
it survives
already expressed we believe
the use of visible restraints
Deck forbids
good law. We conclude
Deck and is still
guilt
penalty phases
only during
that, assuming for the sake of
therefore
Supreme
proceedings.
of courtroom
failing
in
argument counsel’s conduct
the use of re-
has not addressed
Court
object
jury
and inadvertent”
“brief
po-
defendant in
a criminal
straints when
in handcuffs fell
observation Overstreet
being moved about
custody
lice
objective
below an
standard of reasonable-
throughout
courthouse.
Indeed
both
ness,
failed to show
Overstreet still has
in
dissenting opinions Deck
majority and
that but for counsel’s error the outcome of
clearly
language
use of
there is consistent
penalty
of trial would have been
phase
during the
indicating
being
shackled
say,
different. That is to
Overstreet has
opposed
being
entire
proceeding,
failed to show that but for the inadvertent
inadvertently
entering
seen
briefly and
re-
glimpse
and brief
shackles,
is what
the courtroom
straints the
would have returned
long
This Court has
Constitution forbids.
recommending a sentence of a
verdict
that a defendant is not auto-
determined
years
term of
rather
than a death sen-
jurors
matically
to relief based on
entitled
States, 211
tence. See Fountain v. United
momentarily seeing a defendant
re-
(7th Cir.2000)
(finding peti-
F.3d
about the
being transported
while
straints
prejudice
tioner failed to establish
because
See,
e.g.,
courthouse.
Underwood
objection
(Ind.1989)
shackling
to the
would not
(finding
result).
harm,
likely
altered the
showing
that absent a
of actual
have
("[A]
agree
jury’s
glimpse
inadvertent
of a
...
defen
brief or
"Most courts now
physical
dant
trial and is not
defendant in
restraints is not inher-
is not denied a fair
solely
ently
presumptively prejudicial to a defen-
entitled to a
because he was
or
mistrial
dant.”);
inadvertently
Montgomery,
momentarily
seen in hand
Allen v.
728 F.2d
Jones,
(11th Cir.1984) (holding
by jury
that a defen-
cuffs
members.” State
(N.J.Super.
rights
jurors
N.J.Super.
A.2d
dant’s
were not violated where
cases);
Div.1974) (collecting
glimpse
in hand-
Ct. Law
see also
saw a brief
of the defendant
*18
Lattner,
947,
which "were removed as soon as he was
United States v.
385 F.3d
959
cuffs
1095,
(6th
denied,
courtroom”);
Cir.2004),
Wright
brought
v. Tex-
cert.
543 U.S.
into the
as,
185,
(5th Cir.1976) ("We
(2005) (hold
533 F.2d
187
125 S.Ct.
Overstreet’s defense team had hired an guilty largely found of the crime executed independent laboratory analyze principal, it that the his does follow Although DNA trial State’s evidence. penalty appropriate.” same Martinez vigorously counsel cross-examined the (Ind. N.E.2d Chavez v. witnesses, for State’s reasons neither the 1989). trial record nor the record independent reveals the lab- results Here, presented the evidence Overstreet oratory not introduced into evidence. were goes possibility party, to the that a third Also, an expert defense counsel did not call Scott, presumably brother rebut the State’s witness to DNA evidence. may participated rape have in Eckart’s not, post-conviction hearing At the defense and murder. It does as Overstreet Mueller, analyst DNA Dr. Fur- pop- argues, culpability. Laurence address his own ther, geneticist, disagreed although might impli- ulation with the the evidence Conneally Dr. methodology party, disprove used to reach cate a third it does not major 1 in 4 Dr. participation trillion conclusion. Mueller Overstreet’s these Saylor did not indicate what his conclusion would crimes. See (Ind.2002) using methodology. (rejecting have been a different the claim sample rendered ineffective assis- regard With to the taken from counsel failing to introduce additional body, victim’s he also testified data tance for *19 ” (quoting had a ‘lurid mind.’ implicating a third street mitigation evidence of 1294). victim), Tr. at rev’d on murder of the party in the sum, Overstreet has grounds. other and the contention Both assertion had this addi- that
failed to demonstrate First, the frivolous. the State border on introduced, the out- been tional evidence circumstances: alleged aggravating three of trial would penalty phase come of committed the murder in- Overstreet any different. have been tentionally killing Kelly Eckart while com-
mitting attempting rape; or to commit Negating Aggravation F. Evidence Kelly rape Eckart was the victim of for convicted; been which Overstreet has complains that counsel Overstreet Kelly Eckart was the victim of confine- failing assistance for rendered ineffective has been con- ment which Overstreet eyewitness identifi expert an on to secure Tr. at 962. Overstreet does not victed. challenge testimony of one of cation to discern, a chal- explain, and we cannot how The record shows the State’s witnesses.11 eyewitness lenge to Chittum’s identifica- called Amanda Chit- that at trial the State bearing any negating tion could have on tum testified that she saw Overstreet who alleged aggravators. the State’s September on when around noon with nearly her vehicle collided Over- As for the trial court’s reference to mind,” at a location close to the site “lurid street’s van Overstreet’s record Ac in body conducting independent Eckart’s was discovered. shows that where Chittum, jury’s van al review of the death sentence recom- cording to the vehicles mendation the trial court entered a twen- complete stop, came to a most other, in- ty-seven-page sentencing order were within 10 to 15 feet of each following: cluded the got good look at Overstreet’s and she Dr. post-conviction hearing At the face. aggravating The finds that Court eyewitness Roger Terry, an identification factor found herein the Defendant probable prob testified and noted expert, intentionally Kelly killed Eckart while accuracy of Chittum’s mem committing rape given lems with should be sub- asserts, judge “If ory. weight great stantial consideration. Terry, expert from an like All of the as cited in had heard factors herein 15(b)(1) 15(b)(9) fully paragraphs through educated in the weak and become testimony, point there would to the conclusion nesses Chittum’s unmistakable probability planned have a reasonable that the defendant to abduct an been sentencing Appel Br. of unwitting unsuspecting person different result.” on 26,1997. support evening September lant at 59. To this assertion Over- The contends, sentencing “In weapon plan street Defendant had a and a he part trial court relied in on through death the intended to follow with. The testimony finding plan by Chittum’s Over- Defendant acted on his sinister assertion, claims, language, 11. In addition to this under the ferent both which inciden- Negat- heading Evidence tally "Failure To Present appear para- and three four sentence ing Aggravation,” Appellant at Br. of graphs respectively, we are rehash of issues (1) Overstreet makes two additional claims: (discuss- already have addressed in Part III. A counsel rendered ineffective assistance for ing presented evidence of mental illness to the (b)(1) Challenge their "Failure To Intent With (discussing judicata jury) and footnote res (2) counsel To "Fail[ed] Mental Health” and Ring). Apprendi and We de- bar related to Jury Properly Ensure Was Instructed As cline to discuss these issues further. Weighing.” Using slightly To Id. at 60. dif- *20 victim, her, disabling raping killing his counsel is the same as for trial counsel in her with by strangling petitioner her her own that must show appellate dumping clothing, partially her counsel was deficient in her performance in an body mapped clothed area he had deficiency and that the resulted in preju- plan. out in advance to end his The acts Bieghler dice. calculated, (Ind.1997).
of the defendant were cold- 193 satisfy To prong, first blooded, merciless, and sinister from be- petitioner must show that counsel’s ginning testimony to end. As further to performance was deficient in that counsel’s mind, the Defendant’s lurid the Defen- representation objective fell below stan- van, destroyed dant evidence his tried dard of reasonableness and that counsel socks, to hide the victim’s shoes and committed errors so serious that petitioner brother, involved and threatened his and did not guaranteed have the “counsel” (4) approximately days four after he Sixth Amendment. McCary v. ravine, body (Ind.2002).
threw the victim’s into a he 761 N.E.2d To show visited the again apparent site for no prejudice, petitioner must show a rea- reason. The manner which the crime probability sonable that but for counsel’s committed, motivation, was the De- errors the result of the proceeding would body fendant’s actions to conceal the and have been different. crimes, other evidence of the as well as review, When raised on collateral inef- other attendant circumstances of the fective generally assistance claims fall into crime, type are the of considerations (1) three categories: basic denial of access augment
which the value of aggra- this (2) (3) issues; to an appeal; waiver of vator. failure present issues well. Id. at 193— Tr. at 1294. From the foregoing recita- In alleging ineffective assistance of tion, readily it is apparent evidence counsel, appellate Overstreet makes two Overstreet revisited the location where Ec- (a) claims: counsel rendered ineffective as- body presumably kart’s cor- failing found — sistance for raise claim of error testimony roborated of Chittum— upon based Supreme United States played a insignificant rather role in the Florida, holding Espinosa Court’s trial court’s determination of the substan- 505 U.S. 112 S.Ct. 120 L.Ed.2d tial weight given to the intentional killing (1992) (b) appellate counsel failed committing rape aggravator. while There challenge trial court in using error simply nothing in the record to support mental aggrava- illness as an the notion that trial court would have ting mitigating factor rather than a factor. imposed, jury or the would have recom- His first claim falls under the category of mended, a sentence other than death had well, present failure to issues and his sec- thorough challenge there been a more ond claim is based upon the waiver of testimony. Chittum’s There was no inef- category. issues
fective assistance of counsel associated with this claim. Espinosa A. The Claim appeal, On direct appellate coun IV. argued jury sel was allowed to
Ineffective Assistance of overlapping, impermissibly dupli- find two Appellate Counsel circumstances, aggravating cative standard of review for a therefore the an inappro considered claim of appellate ineffective assistance of priate aggravating circumstance in its *21 reviewing the court to reexamine and take disagreed We process.
weighing (intention- (b)(1) specific look at issues it has al- aggravator another found that the rape) ready adjudicated commission of to determine “whether killing during al (Eckart (b)(13)(D) citations, references, was a case aggravator the record the new any du- impermissibly arguments margin- or would have had rape) victim of were on they previous were based dif- al effect on their decision.” Id. plicative because considerations. underlying policy ferent Here, discern, as best as we can Over- Overstreet, at 1162. also 783 N.E.2d We argue seems to that because the street independent in evalua- determined that its (b)(13)(C) (D) merged into aggravators tion, correctly trial court refused to the (b)(1) aggravator jury weighed the im- the (b)(13)(D) aggravator the or weigh either Thus, aggravators. argument proper (Eckart (b)(13)(C) aggravator continues, weighing contravened “[s]uch confinement) because the facts victim protection against Fifth Amendment (b)(1) overlapped with the supporting them jeopardy, Eighth double Amendment’s at 1167. Overstreet now aggravator. Id. guarantee reliability, and the Four- determination contra- complains that our process protec- teenth Amendment’s due Supreme State Court’s venes the United Br. at 67. Appellant tions.” appellate and that holding Espinosa in Espinosa helps fail to see how Over- We ineffective assistance in counsel rendered There, argument. aggravators street’s failing to cite or discuss this case on direct improper they were held to be because appeal. unconstitutionally vague. were No such jury Espinosa, was instructed appellate claim is made here. Had counsel in that “espe- that if the murder case was cited or discussed this case on direct re- cruel,” wicked, evil, cially atrocious or view, it made no in would have difference jury aggra- could consider that fact as an disposition appeal. our of Overstreet’s vating recommending circumstance at Espinosa, sentence of death. 505 U.S. Aggravating B. Mental Illness as an S.Ct. 2926. returned Factor and upon death sentence recommendation Overstreet contends that the trial court trial court independent evaluation the en- aggrava- relied on his mental illness as an judgment accordingly. Accepting tered ting mitigating factor rather than a factor. certiorari, Supreme declared Court Overstreet, According to counsel rendered “wicked, evil, atrocious or cruel” failing ineffective assistance to raise unconstitutionally vague, instruction was appeal. this issue on direct and therefore held that the trial court Eighth violated the federal Constitution’s To inef show counsel was pun- Amendment ban on cruel and unusual failing fective for to raise an issue on imposing ishment death sentence. Id. appeal resulting in collat thus waiver for at 1081. review, eral the defendant must overcome inadequate presentation strongest presumption adequate Claims of as issues, sistance, judicial highly certain as contrasted with denial of review deferential. issues, appeal Yisrayl access to an or waiver of are Ben- 738 N.E.2d (Ind.2000). the most difficult for defendants to ad- 260-61 Ineffective assis very rarely reviewing support. vance and tribunals to tance is found cases where a appellate Bieghler, 690 N.E.2d 195. And this is defendant asserts counsel essentially require appeal. Biegh so claims failed to raise an issue on because such ler, acknowledged at 193. One reason for The trial court that “the that the decision of what issues to this is Court finds the Defendant has shown the deci important raise is one of the most Court that he did suffer from an extreme appellate sions to be made counsel. disorder,” mental id. at but conclud “[d]espite ed that the Defendant’s mental trial support To his contention that the *22 condition, the evidence is too extensive for court relied on his mental illness as a give great Court amount of weight factor, aggravating our Overstreet directs factor, a mitigating this as but the Court following excerpt attention to the from the give weight does low to moderate it as a sentencing trial court’s order: mitigating factor.” at little, if anything, Defendant did to treat young a his condition as adult his Far from considering Overstreet’s men- quite mother was the enabler for his factor, tal an aggravating illness as as adult, recalcitrant behavior. As an contends, erroneously Overstreet the trial any Defendant did not seek treatment specifically court found Overstreet’s men- until approximately six months before tal as a mitigating por- illness factor. The occurred, despite the crimes herein tion of the sentencing order to which Over- supported evaluations and facts which street directs our attention merely serves therapy the need for and medication. a partial explanation of the trial court’s [T]he evidence also establishes that as reasoning assigning for it low to moderate adult, Defendant became an he contin- weight. Appellate counsel cannot be fault- suggestions ued to rebuke for on-going ed for failing to raise what would have mental health treatment until 1997. In been meritless claim.
any society civilized there comes a time longer when adults can no blame their V. happened actions as adults on what Denial of a Fair Post-Conviction them as children. Hearing Br. of at Appellant (quoting 69-70 Tr. at 1302,1304). complains Overstreet that he was denied a fair post-conviction hearing. alleges: He observe, We first illness “[M]ental (a) post-conviction court in erred may the time of the crime be considered (b) evidence; admission and exclusion of significant mitigating factor.” Castor post-conviction in quashing court erred (Ind.2001) (em 754 N.E.2d County to the subpoena Johnson Prose- added) phasis (citing Mayberry v. (c) cutor; post-convic- an inaccurate (Ind.1996)). In any tion him fair hearing transcript denies event Overstreet’s claim lacks merit. The appellate post-conviction pro- review of the record that in sentencing shows its order ceedings. expressly acknowledged, the trial court presented “The defense evidence of miti A. The and Exclusion Admission circumstances, gating and the has Court Evidence fully carefully considered the same determining general heading, whether a sentence less than Under this Overstreet (1) appropriate post-conviction death is more herein.” Tr. at makes three claims: recitation, lengthy sustaining objec- 1294. In a and detailed court erred the State’s the trial court then chronicled the evidence tion to the admission of demonstrative evi- (2) dence; presented supporting post-conviction at trial court erred objection claim in 'sustaining of mental illness. Id. at 1297-1302. the State’s to the (2) an affidavit of a Admission into evidence admission of Affidavit (3) witness; post-convic- defense During hearings August on 16 and allowing a State’s re- tion court erred 20, 2004, August sought to in buttal witness. troduce into evidence the' affidavits of witnesses, expert one of which was
three Engum’s. Dr. Eric (1) Evidence Demonstrative objection sustained the to the State’s post-conviction hearing At the affidavits, but “allowed admission of these presented four mental health day the Petitioner one additional of trial on aspects various experts that testified about September present in which to During experts testimony illness. the testimo and cross-ex of his mental these *23 App. Septem amination.” at 301. At the ny experts, sought of one of the Overstreet hearing ber 13 defense counsel informed to introduce as a demonstrative exhibit that Dr. Engum the court was not avail excerpts picture from motion about the able, October, would available until not be diagnosed with person schizophre life of a “give requested and the court to us anoth argued excerpts nia. that the Overstreet day try get in Dr. er October and and in “of assistance to the Court would be Engum testify.” here to P-Cr. at 839-40. ... showing of how the hallucina terms post-conviction delay court declined to symptoms work on a tions and delusion proceedings any the further and also de schizophrenic.” post- P-Cr. 532. The ruling clined to reconsider its on the affi conviction court sustained the State’s ob davit. Id. at 840. jection to the introduction of the exhibit. Complaining despite their best ef- “Demonstrative evidence is evidence of Engum forts counsel could not secure Dr. purposes fered for of illustration and clari hearing, the date of the continued Over- fication.” 719 N.E.2d Wise that, argues “[g]iven street the relevance” (Ind.1999). admissible, To be the in of the information contained the affida- sufficiently explanatory evidence must be vit, judge “the its discretion PCR abused testimony or of relevant illustrative be rejecting in Appel- affidavit.” Br. of help of to the trier fact. potential of First, lant at problem 89.12 with the By granting post- the State’s motion the relevance, affidavit is not one of but the apparently conviction court concluded that ability of question the State to and cross- excerpts picture from the motion would be examine the affiant. See Shumaker v. help illustrating clarifying of no in or (Ind.1988) testimony. witness’ The record shows that (noting proffered affidavit was post-conviction court listened to hours hearsay improperly admitted because testimony and reviewed several docu it anwas out-of-court statement offered to detailing ments Overstreet’s mental illness. the truth of prove the matters asserted find We no abuse discretion the court susceptible therein not to cross-exami- declining to allow into evidence a fictional nation). Indeed, affording State story, albeit based on a true-life event that opportunity Engum, to cross-examine Dr. at most would have amounted to cumula testimony as well as other witnesses whose by way tive evidence. sought present Overstreet Engum’s provided perti- schizophrenia 12. Dr. affidavit Overstreet with as well as schi- part provided nent that if he had been with zotypal personality App. at disorder. information, diagnosed he certain would have sides, affidavit, prompted post-conviction court overruled objection in objection. the State’s the Overstreet’s court sustain Second, nearly had place. first Among things, other Dr. Masbaum testi- arrangements alternative a month to make fied that the trial appointed him in testimony Engum of Dr. to secure the opinion 1998 to evaluate Overstreet for an Third, apparently failed to do so. and regarding competence his to stand trial perhaps important, point most the critical sanity and his at the time of the offense. Engum’s of Dr. affidavit—that he also Dr. Masbaum’s clinical diagnosis at that diagnosed have would time was that history Overstreet had a cumulative, schizophrenic —was dependence. alcohol He concluded that but would have made no difference comprehension Overstreet had sufficient penalty phase of trial. As we discussed proceedings understand the and to assist A, in Part III. Dr. testified earlier Smith attorneys his in his defense. Dr. Masb- post-conviction hearing diag- at the that he aum opined also that Overstreet was of schizo- suffering nosed Overstreet as from sound mind at the time of the offenses phrenia. And the heard extensive that he was able to appreciate wrong- testimony Engum from Dr. about the seri- Noting fulness of his conduct. that he had ousness Overstreet’s mental illness. *24 reports reviewed the of various defense sum, post-conviction the court did not experts, including reports making the di- failing abuse its discretion in to allow En- agnosis paranoid schizophrenia, Dr. gum’s affidavit into evidence. Masbaum testified that had “[Overstreet]
no schizophrenia when I examined him.”
(3) State’s Rebuttal Witness
at
Id.
896. He also testified that he stood
by
despite
that conclusion
the additional
complains
Overstreet
also
preparation
records he had reviewed in
post-conviction
the
about
court’s decision
the hearing.
vigorously
Id. Overstreet
the
to call a
to allow
State
rebuttal wit
Masbaum, challenging
cross-examined Dr.
scope
ness. The
of rebuttal evidence lies
assumptions
his
Dr.
pointing out that
post-conviction
within the
court’s discre
post-convic-
Masbaum did not review the
tion. Brown v.
testimony
experts.
tion
of Overstreet’s
(Ind.1991).
earlier,
As we mentioned
dur
at 905-13.
ing
post-conviction hearing
the
Overstreet
appeal
explained
Overstreet has not
On
presented
experts
four mental health
by
how he
post-conviction
was harmed
the
aspects
testified about various
of his men
court’s decision
allow Dr. Masbaum
tal
After
illness.
Overstreet had conclud
testify.
complains that he was
Overstreet
presentation,
ed his
the State called Dr.
at
“caught by surprise.”
Appellant
Br. of
Masbaum, a
psychiatrist,
Ned
forensic
thoroughness
But
the
of Overstreet’s
give
opinions regarding
reports
“his
cross-examination reveals
he was well
by
experts.”
have been offered
these
prepared
any challenge posed by
to meet
objected
P-Cr. at 840. Overstreet
testimony
of this
find no
witness. We
complained that
Dr.
allowing Masbaum to
abuse of discretion here.
testify was not consistent with the court’s
management
case
Dr.
schedule and Masb-
Quash
Sustaining
B.
Motion to
Sub-
testimony
unnecessary
aum’s
because
poena
testimony
he could
rebut the
of Dr.
Engum
testify.
who did not
After a
During
post-conviction pro
on
lengthy
argument by
ceedings
subpoena
discussion and
both
Overstreet served a
trans.
testimony
deputy prosecutor),
of a
County direct-
of Johnson
prosecutor
(Ind.2001).
denied,
case. the evidence Where Tran- C. Inaccurate Post-Conviction and absent available from other sources script or “com- “extraordinary circumstances” After the court en reasons,” attorney partic- who pelling relief, denying tered its order *25 called as a ipates in a not be case should to correct and he thereafter filed motion
witness. transcript post-con of the supplement the (Ind. proceedings. viction Attached to his mo Ingle N.E.2d 933 v. 746 2001) omitted) sheet, eighteen-page there tion was an errata (quotation (finding based on Overstreet’s review of audio prosecutor no to conclude basis discs, easily suggested corrections of mis listing that was not any had information sources); spelled transcriptions Ba words and of testi available from other see also (Ind.Ct. mony reporter found inaudible. 536 delle v. App. requested at 585-605. Overstreet App.2001) (finding the defendant estab transcript need for that the be corrected consistent compelling legitimate lished a from with his errata sheet and that a corrected requested some of the information transcript supplemental was met be submitted as prosecutor, former but the need in the Indiana transcript and the accordance with prosecutor’s former affidavit shackles, pur- appear specifically sought [w]ith- 13. to to before the in More Overstreet '‘[k]nowing presentation following: sue the holding about benefits extended information jury pro- testimony, grand witness, false cess, of the [a]buse key [e]liciting prejudicial, to a with the defense investi- [interference inadmissible, misleading evidence.” gation, [improper as a focus on Overstreet Overstreet, According App. "As to evidence, suspect, [suppression material areas, County Johnson [the these Hamner [injection impact of inadmissible victim evi- appropriate witness. As Prosecutor] is the dence, [fjailure suspects, pursue other prosecutor, presumably trial he has first-hand misconduct, [engagement pattern of in a knowledge matters.” of these [plossible participation causing in Overstreet
171 every in case in which it is responded imposed.”); Rules.14 The State see Appellate Zant, for the although 357, 358, Overstreet arguing also Dobbs v. 506 U.S. 113 correctly typographi- part (1993) identified most 122 L.Ed.2d (per S.Ct. 103 errors, cal, spelling or Over- grammatical, curiam) (“We emphasized have before the to show that these inaccura- street failed importance reviewing capital sentences post-conviction were material. The cies record.”). a complete Importantly, on court denied Overstreet’s motion. Ben-Yisrayl district court in determined record, in particular transcript that the complains post-con- that the
Overstreet ruling right viction court’s violated his during comments State made clos- opportunity pursue fair his claims.15 ing argument, many contained too errors Appellant support Br. of at 94. Over- and uncertainties to enable the court to Ben-Yisrayl in part street relies on explore fully the existence and extent of (N.D.Ind. Davis, F.Supp.2d any Ben-Yisrayl, constitutional error.
2003), granted district court ha- where the F.Supp.2d at 906. in corpus petitioner part
beas
relief to a
In this case the errors in the transcript
in
transcript
because of inaccuracies
inconsequential.17 Significantly,
are
our
trial.
to the
petitioner’s capital
appeal
On
review of Overstreet’s
court,
observed,
Judge Manion
circuit
impeded by
claims has not been
inaccura-
faulty
provide
record does not
“[T]his
transcript. Many
cies in the
errors listed
necessary
pro-
foundation
to render due
in portions
proceedings
are
that are
appeal.”
the defendant
in this
cess to
Davis,
germane
to the issues Overstreet has
Ben-Yisrayl v.
431 F.3d
(7th Cir.2005) (Manion, J., concurring).
just
important,
raised for review. And
makes no claim that he
has
Ben-Yisrayl provides
no re-
any way by
in
been harmed
the inaccura-
in
lief. At stake
that case was the accura-
example,
cies. For
Overstreet does not
cy
reliability of
the trial record.16 See
presentation
contend that his
of the issues
Florida,
Gardner
U.S.
way
appeal
any
this
have been
affect-
(1977) (“[I]t
1197,
brother committed 386 U.S. (1967). 788, vague communication becomes and circular S.Ct. L.Ed.2d 730 As Jus- reasoning, repeating over and over that tice Brennan wrote: positive thoughts he to have because needs decisions of the [T]he [United States negative thoughts would otherwise re- his not, Supreme] Court are should not family. sult in harm to his Id. The record be, dispositive questions regarding of although shows that Overstreet continues rights guaranteed by counterpart provi- struggle discerning with “what Accordingly, sions of state law. such ” ‘real,’ there is no evidence that indicates mechanically applicable decisions are not reality crime occur- questions he issues, to state law and state court ring reality punishment by or the of his judges and the members of the bar seri- the State for the crime committed. Id. at ously they Rather, if err so treat them. Thus, under more nu- even Panetti’s judges, practition- state court and also insanity anced Ford articulation ers, do well to scrutinize constitutional test, qualify Overstreet does not as insane courts, decisions federal for if juris- Eighth under current Amendment they are logically persuasive found to be sum, prudence. is entitled well-reasoned, paying regard due to no relief on his federal constitutional precedent and the policies underlying claim. specific guarantees, constitutional may they properly persuasive weight claim B. State Constitutional Claim guideposts interpreting when counter- According majority to the part guarantees. state also is entitled to no relief on his state Brennan, Jr., William J. State Constitu- constitutional claim. This view is ex- tions and the Protection Individual pressed in separate opinions of Chief (1977) 489, Rights, 90 Harv. L.Rev. Sullivan), Shepard (joined by Justice Jus- (footnote omitted). This Court has ex- Dickson, tice I and Justice Boehm. re- plained on more than one occasion that spectfully disagree. issues, when examining constitutional I, Article Indiana Section 16 of the Con- upon claims based the Indiana Constitu- provides, stitution “Excessive bail shall not analyzed tion should be separately from required. be Excessive fines shall not be claims based upon its federal constitutional imposed. and unusual punishments Cruel counterparts. See Boehm v. Town St. shall penalties not be inflicted. All shall John, (Ind.1996); 675 N.E.2d Col- proportioned be to the nature of the of- Day, (Ind.1994); lins v. 644 N.E.2d fense.” see also Randall T. Shepard, Second Wind The United States Constitution estab- the Indiana Rights, Bill 22 Ind. for (1989). lishes a protection minimum level of to L.Rev. 575 I agree prop- with this Hass, citizens of all Oregon states. See osition. And in this area jurisprudence 714, 719, 420 U.S. particular, 95 S.Ct. 43 in I continue to believe that (1975). L.Ed.2d 570 But a state is free as “Indiana’s constitution great- affords even a matter of its own protection constitutional law to er than its federal counterpart.” confer rights above the floor of constitu- Corcoran v. (Ind.2002)
tional safeguards
(ex-
(Rucker, J.,
found in the United
dissenting)
See,
States
e.g.,
Constitution.
pressing
PruneYard
the belief that a sentence of death
Robins,
Shopping
Ctr. v.
447 U.S.
a person suffering
from severe mental
(1980);
100 S.Ct.
176 B, SHEPARD, Eighth VI. C.J. al formulation of part juris-
As to Amendment SULLIVAN, in which opinion this, delivers prudence. I agree with Justice DICKSON, J., and J. concurs and upon Rucker claims based the Indiana J., BOEHM, separate opinions. deliver analyzed Constitution should be separately upon from those based its federal constitu- C.J., SHEPARD, as to the State Consti- counterparts. tional But in contrast tutional Claim. conclusion, Justice Rucker’s I consider the join All five Justices Justice Rucker’s Indiana Constitution provide different, opinion to the resolution of Overstreet’s more, rather than necessarily protection claims, except as various to Part VI. B. Eighth than the federal Amendment for B Part VI. covers Overstreet’s conten- with persons facing mental illness mental him tion that his illness renders penalty. death ineligible penalty, citing for the death Arti- I, cle 16 of the Indiana Section Constitu- Justice Boehm notes federal decisions tion. This claim under Section 16 has that, past in the fifty years, interpret have already adversely decided posi- been to his prohibition ed the of cruel and inhuman State, 454, tion. Matheney v. 833 N.E.2d punishment, calling for consideration of (Ind.2005); State, v. 457 Baird 831 N.E.2d “evolving decency.” Roper standards of v. (Ind.2005). 109, Thus, post-convic- 111 Simmons, 551, 560-561, 543 U.S. 125 S.Ct. being respects. tion court is affirmed all 1183, 1190, 1, (2005); 161 L.Ed.2d Trop Dulles, 86, 100-01, 590, v. 356 U.S. 78 S.Ct. SULLIVAN, J., concurs. 598, 630, 642, (1958); L.Ed.2d Atkins cf.
DICKSON, Justice. Virginia, 304, 311-13, v. 536 U.S. 122 S.Ct. I opinion 2242, 2246-18, concur with Justice Rucker’s 335, 343-46, 153 L.Ed.2d exception B, with of Part (2002) VI. which (considering a national consensus of state addresses Overstreet’s constitutional decency); standards of Ford v. Wain issue, I agree claim. As to this with Jus- wright, 2595, 477 U.S. 106 S.Ct. Matheney tice Boehm that 833 2600, 335, (1986) 91 L.Ed.2d (taking (Ind.2005), N.E.2d Baird values”). into account “contemporary (Ind.2005), both Consideration of such factors as “national focused on a claim of mental illness at the consensus” and “standards of decency,” crime, of the time rather than a claim of however, are not necessarily required subsequent or enhanced mental illness. construing when Indiana’s Section 16. But, although may claim that The text “cruel and punish- unusual severity mental of his illness in- has ment” in time, Section phrase like the “un- creased over this assertion does not result in a reasonable search violation of the Indiana and seizure” in Consti- Section tution. 11 of strongly Article suggests that our framers and ratifiers intended and foresaw While both the federal Constitution’s provisions that these would be understood Eighth Amendment and Article Section applied in light of the circumstances 16 of our 1851 Indiana prohib- Constitution existing and values prevailing Indiana at it the infliction “cruel and pun- unusual relevant future times. ishments,” considering When I agree cannot that the subse- the Indiana quent Assembly General interpretation and has application of necessarily relatively recently Indiana’s Section 16 spoken legislative with follow precise step lock with the ascendant defining feder- enactments the limited class of majority opinion Part as to VI.B penalty,1 the death eligible for defendants mental a claim that the current mentally addressed penalty for the death prohibiting *31 peti- rendered the persons petitioner for state of the but not individuals retarded Rather, illness,2 defining ineligible “mental- tioner for execution. mental with Matheney v. State stated pur- claim “mentally retarded” ly ill” and Mathene/s that and sentenc- he procedure criminal under the Indiana Constitution poses of not person penalty for a from the death exempt of death “should be ing,3 a sentence ill- suffering mentally mental ill when he com- but because he was mentally retarded 454, “un- “cruel” or N.E.2d 456 considered mitted the murder.” 833 ness cannot be (Ind.2005). in Baird v. State light explicit in of the 16 usual” under Section in state. For declining our to rule on.the issue clearly prevailing values reasons, prevail not a claim does to raise: “we do not discern seeks these vio- to be competent sentence presently that his death that Baird is in the claim (Ind. 109, N.E.2d 115 Constitution. executed....” 831 lates the Indiana 2005). Moreover, case addressed neither Justice, concurring, and con- BOEHM, record specific more than the anything B. in as to Part VI. curring result thereof, petitioner’s lack of the proof, or Rucker’s mental state. of parts I in all Justice concur B. For except for Part VI. opinion however, agree, I that the Indiana Con- below, in I concur explained
reasons than greater protection no stitution affords opinions of separate in the reached result provides on this Eighth Amendment Dick- and Justice Shepard Chief Justice The text of the Indiana Constitu- issue. son. Eighth to the point on is identical tion this Amendment, nothing in the and there is Justice agree
I
with the Chief
do not
state,
judicial
of this
history
precedents
or
this court have fore-
prior
decisions of
debates,
leads
that his or our constitutional
current claim
closed Overstreet’s
be
that the texts should
un- me to conclude
cruel and
execution would constitute
Eighth
I,
differently.
interpreted
Article
in violation of
punishment
usual
against the execu-
prohibition
Amendment
Constitution.
Section 16
Indiana
on
significantly
rests
tion of the insane
of the cases cited
neither
Specifically,
decency.1 I
of
evolving national standards
separate opinion
Shepard’s
Chief Justice
(last
particular punishment
determining
whether
§
amended
Ind.Code
35-50-2-9
1.
digni-
comports
human
2007).
with
fundamental
protects.”);
ty
[Eighth] Amendment
that the
560-61,
551,
Simmons,
(last
Roper
543 U.S.
§
amended in
35-36-2-5
Ind Code
cf.
2.
(2005)
(holding
35-50-2-9(a)
(last
the national consensus Court has found. the United States years, past Supreme few
Court the federal has held that Constitu- prohibits juve-
tion the execution of both mentally
niles and the retarded. Rop- See *32 Simmons, 551, 567-68,
er v. U.S. (2005);
S.Ct. 161 L.Ed.2d Atkins v.
Virginia, 536 U.S. S.Ct. (2002).
153 L.Ed.2d No such categori- prohibition placed
cal has been on the exe- ill,
cution of the even mentally those whose Rather,
disease is severe. the Constitu- prohibit
tion has been held
execution of those who meet the standards
set Although Ford and Panetti I can
certainly why the legislature understand
might choose to prohibit execution of
all persons from suffering severe mental
illness, state, has not occurred this I,
and I cannot read Article Section 16 Eighth
more expansively than Amend-
ment. I concur in Accordingly, the result
reached Shepard Chief Justice as to
Part VLB. LIGGETT,
Ronald Liggett D. Con- d/b/a (Defen- Company, Appellant
struction Party Plaintiff),
dant/Third
Dean A. Young, YOUNG and Elisabeth (Plaintiffs/Third
Appellees Party
Defendants).
No. 38S02-0703-CV-80.
Supreme of Indiana. Court 4, 2007.
Dec.