Bivins v. State

• Decision Date: 26 September 2000
• Docket Number: No. 06S00-9602-PD-173.,06S00-9602-PD-173.
• Citation: 735 N.E.2d 1116
• Parties: Gerald W. BIVINS, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

735 N.E.2d 1116

Gerald W. BIVINS, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 06S00-9602-PD-173.

Supreme Court of Indiana.

September 26, 2000.

Lorinda Meier Youngcourt, Special Assistant to the Public Defender of Indiana, Evans & Youngcourt, P.C., Indianapolis, IN, Janet S. Dowling, Special Assistant to the Public Defender of Indiana, Albuquerque, NM, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Andrew L. Hedges, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.

Gerald W. Bivins seeks post-conviction relief from his convictions for murder and sentence of death arguing, inter alia, that his trial counsel did not adequately investigate and present evidence in mitigation of a death sentence. We affirm the post-conviction court's decision to deny post-conviction relief, including its determination that trial counsel did not render deficient performance in investigating and presenting evidence of mitigating circumstances.

Discussion

Gerald W. Bivins was convicted of murder, robbery, confinement, auto theft, and theft in connection with the killing of Reverend William Radcliffe and sentenced to death. We earlier affirmed Bivins's direct appeal of these convictions and sentence. See Bivins v. State, 642 N.E.2d 928 (Ind. 1994),

cert. denied, 516 U.S. 1077, 116 S.Ct. 783, 133 L.Ed.2d 734 (1996). As permitted by Indiana Post-Conviction Rule 1, Bivins sought collateral review by filing a petition for post-conviction relief. This petition was heard in the Boone Superior Court and post-conviction relief was denied. Bivins now appeals the denial of post-conviction relief to this court. In this opinion, we will refer to the court in which Bivins was originally tried and convicted as the "trial court" and the court in which the petition for post-conviction relief was heard and denied as the "post-conviction court."¹

Applicable law dictates that we review Bivins's appeal according to certain established standards.

First, Indiana Post-Conviction Rule 1(6) requires a post-conviction court to make findings of fact and conclusions of law. When a court makes special findings of fact and conclusions of law, the findings must be supported by the evidence and the conclusions supported by the findings. See Estate of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind.1994),

reh'g denied.

Second, because Bivins had the burden of establishing his grounds for relief at the post-conviction hearing, Indiana Post-Conviction Rule 1(5), he is now appealing from a negative judgment. And because he is appealing from a negative judgment, we require him to demonstrate that the evidence as a whole was such that it leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. See Spranger v. State, 650 N.E.2d 1117, 1119-20 (Ind.1995),

reh'g denied. "`[I]t is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached the opposite conclusion, that'" its findings or conclusions will be disturbed as being contrary to law. Spranger, 650 N.E.2d at 1120 (quoting Fleenor v. State, 622 N.E.2d 140, 142 (Ind.1993),

cert. denied, 513 U.S. 999, 115 S.Ct. 507, 130 L.Ed.2d 415 (1994)).

Third, several of Bivins's claims for post-conviction relief are grounded in his contention that he did not receive the minimum level of effective assistance from his trial counsel that the Constitution requires. We analyze such claims according to the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.1994),

cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995). We require the defendant or petitioner to show that, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance. Id. This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Id. (citing Turner v. State, 580 N.E.2d 665, 668 (Ind. 1991),

reh'g denied). And we require the defendant or petitioner to show adverse prejudice as a result of the deficient performance. This showing is made by demonstrating that counsel's performance was so prejudicial that it deprived the petitioner of a fair trial. Williams v. Taylor, 529 U.S. 362, ___, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000) (quoting Strickland, 466 U.S. at 687,

104 S.Ct. 2052); Lowery, 640 N.E.2d at 1041. To establish prejudice, the defendant or petitioner "`must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome.'" Williams, 529 U.S. at ___-___, 120 S.Ct. at 1511-12 (quoting Strickland, 466 U.S. at 694,

104 S.Ct. 2052).

I

Bivins contends that he is entitled to post-conviction relief because his trial counsel failed "to investigate, understand, present, and argue" evidence in mitigation of the death sentence. Br. of Appellant at 45. Under the Indiana death penalty sentencing scheme, in order for a jury to recommend and for a trial court to impose a sentence of death, each must find that any circumstances that exist in mitigation of the death sentence are outweighed by specified circumstances in aggravation. See Ind.Code § 35-50-2-9(e) (Supp.1990).² Bivins argues that his trial counsel conducted insufficient investigation as to the existence of mitigating circumstances and provided him with ineffective representation during the death penalty phase. In particular, Bivins contends that an adequate investigation would have revealed that Bivins was a victim of a parental neglect, of alcoholism, of Attention Deficit Hyperactivity Disorder (ADHD), of a central auditory processing disorder, and a speech defect (stuttering).

As required by Indiana Post-Conviction Rule 1(6), the post-conviction court made specific findings of fact and conclusions of law. From its findings, it concluded as a matter of law that trial counsel did investigate and attempt to present mitigating evidence and that none of the mitigating evidence presented to the post-conviction court would likely have changed the sentencing decision of the jury or trial court.

A

Bivins's counsel lodges several challenges against the post-conviction court's findings of fact as not being supported by the evidence. See Estate of Reasor, 635 N.E.2d at 158 (ruling that when a court makes special findings of fact and conclusions of law, the findings must be supported by the evidence).

As pointed out recently in State v. Holmes, 728 N.E.2d 164, 168-69 (Ind. 2000), reh'g denied, this Court will accept the post-conviction court's findings of fact so long as they are not "clearly erroneous." See also Ind. Trial Rule 52(A). We examine only the probative evidence and reasonable inferences that support the post-conviction court's determination and we neither reweigh the evidence nor judge the credibility of witnesses. Holmes, 728 N.E.2d at 169; Spranger, 650 N.E.2d at 1119. "Clear error" is that "`which leaves us with a definite and firm conviction that a mistake has been made.'" State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind. 1996) (quoting Spranger, 650 N.E.2d at 1119), reh'g granted in part, 681 N.E.2d 181 (1997), cert. denied, 522 U.S. 1119, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998). We begin by examining each challenge to the post-conviction court's findings of fact to determine if the findings are clearly erroneous.

1. In the last sentence of finding of fact no. 46, the post-conviction court found that Bivins's relatives testified that his "parents sometimes got along well with each other but argued at other times." Bivins argues that only one relative made that observation and several relatives testified to a much more turbulent relationship. Bivins contends that the post-conviction court's finding minimizes the violent nature of his parents' relationship, completely ignores that Bivins was a witness to this violence, and is not supported by the weight of the evidence.

Our review of the record indicates that Bivins presented testimony or affidavits at the post-conviction hearing from thirteen eyewitnesses of his childhood in Evansville, including his mother and brother. Four of those childhood-era witnesses testified that Bivins's parents did not get along well and fought with each other. One of those witnesses also testified that at other times, Bivins's parents got along well. Another of those witnesses testified that Bivins's parents "ran around" on each other (R. at 1176-77, 1181) and that Bivins "had to see" the fights between his parents. (R. at 1180.) The nine other witnesses (including Bivins's mother and brother) made no mention of violence between Bivins's parents in their testimony or affidavits.

The post-conviction court might have included a finding concerning violence in Bivins's childhood home. However, a large majority of the childhood-era witnesses (including his mother and brother) made no mention of it and there was no conclusive evidence of the extent of his awareness of whatever violence was present. The evidence supports the findings made by the post-conviction court. 2. Bivins argues that the post-conviction court's statement in finding of fact no. 46, that he was raised in "a lower-middle class neighborhood," is not supported by the record. Rather, he argues it was an extremely poor and dangerous neighborhood. In making this finding, Bivins contends that the post-conviction court focused on one sentence from one witness and ignored all evidence to the contrary.

Our review of the record indicates that four of the thirteen childhood-era witnesses, including Bivins's brother, described the neighborhood in which he grew up in the following...