770 N.E.2d 739 (Ind. 2002), 79S00-9804-PD-00250, Stevens v. State

Docket Nº:79S00-9804-PD-00250.
Citation:770 N.E.2d 739
Party Name:Christopher M. STEVENS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
Case Date:June 26, 2002
Court:Supreme Court of Indiana

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770 N.E.2d 739 (Ind. 2002)

Christopher M. STEVENS, Appellant (Petitioner Below),

v.

STATE of Indiana, Appellee (Respondent Below).

No. 79S00-9804-PD-00250.

Supreme Court of Indiana

June 26, 2002

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Susan K. Carpenter, Public Defender of Indiana, Thomas C. Hinesley, Deputy Public Defender, Barbara S. Blackman, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Andrew L. Hedges, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

ON APPEAL FROM THE DENIAL OF POST-CONVICTION RELIEF

DICKSON, Justice.

In 1995, Christopher M. Stevens was convicted of the 1993 murder of ten-year-old Zachary Snider. In accord with the jury's recommendation, the trial court ordered the death sentence. This Court affirmed the conviction and sentence on direct appeal. Stevens v. State, 691 N.E.2d 412 (Ind.1997), cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998). The defendant thereafter petitioned for post-conviction relief. After extensive proceedings and the presentation of evidence, the post-conviction court denied his petition. He now appeals from the denial of post-conviction relief. The factual details of the offense are detailed in our opinion on direct appeal. Id. at 416-420. We affirm the denial of post-conviction relief.

The defendant enumerates seven issues presented for review. We regroup them as follows: (1) ineffective assistance of trial counsel; (2) governmental interference with the right to counsel; (3) ineffective assistance of appellate counsel; (4) unreliability and unconstitutionality of the death sentence; (5) incomplete, unfair, and biased post-conviction relief adjudication.

Defendants who have exhausted the direct appeal process may challenge the correctness of their convictions and sentences by filing a post-conviction petition. Langley v. State, 256 Ind. 199, 203, 267 N.E.2d 538, 540 (1971). Post-conviction proceedings are civil proceedings, and a defendant must establish his claims by a preponderance of the evidence. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000). Because the defendant is now appealing from a negative judgment, to the extent his appeal turns on factual issues, he must convince this Court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. See Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001). In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.

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Spranger v. State, 650 N.E.2d 1117, 1120 (Ind.1995). We do not defer to the post-conviction court's legal conclusions, but do accept its factual findings unless they are "clearly erroneous." Ind.Trial Rule 52(A); Conner v. State, 711 N.E.2d 1238, 1245 (Ind.1999); State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind.1996), reh'g granted in part, 681 N.E.2d 181 (Ind.1997). As we recently stated in Timberlake:

Post-conviction procedures do not afford a petitioner with a super-appeal, and not all issues are available. Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999). Rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules. P-C.R. 1(1); Rouster, 705 N.E.2d at 1003. If an issue was known and available but not raised on direct appeal, it is waived. Rouster, 705 N.E.2d at 1003. If it was raised on appeal, but decided adversely, it is res judicata. Id. (citing Lowery v. State, 640 N.E.2d 1031, 1037 (Ind.1994)). If not raised on direct appeal, a claim of ineffective assistance of trial counsel is properly presented in a post-conviction proceeding. Woods v. State, 701 N.E.2d 1208,1215, [1220] (Ind.1998). A claim of ineffective assistance of appellate counsel is also an appropriate issue for post-conviction review. As a general rule, however, most freestanding claims of error are not available in a post-conviction proceeding because of the doctrines of waiver and res judicata.

753 N.E.2d at 597-98. Furthermore, any "[i]ssues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal." Allen v. State, 749 N.E.2d 1158, 1171 (Ind.2001)(citing Ind.Post-Conviction Rule 1(8)("All grounds for relief available to a petitioner under this rule must be raised in his original petition.")); Howard v. State, 467 N.E.2d 1, 2 (Ind.1984)("It is well settled that issues which are not raised either at the trial level, on appeal, or in a post-conviction petition are waived.").

1. Ineffective Assistance of Trial Counsel

The defendant contends that deficiencies in his trial representation created a reasonable probability that the results of both the guilt phase and sentencing phase would have been different. In this appeal, he asserts numerous claims of alleged errors of trial counsel.

To succeed before the fact finder on his claim of ineffective assistance of counsel, the defendant needed to prove by a preponderance of the evidence not only that his trial counsel's representation fell below an objective standard of reasonableness, but also that his counsels' errors were so serious as to deprive him of a fair trial because of a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. See Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1846, 152 L.Ed.2d 914 (2002); Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389, 416 (2000); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Woods v. State, 701 N.E.2d 1208, 1224 (Ind.1998). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. In determining whether a defendant proves his claim of ineffective assistance of counsel, the fact-finding court is guided by various important guidelines. There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Counsel is afforded considerable discretion in choosing

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strategy and tactics, and these decisions are entitled to deferential review. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Perez v. State, 748 N.E.2d 853, 854 (Ind.2001); Timberlake, 753 N.E.2d at 603.

a. Inadequate Investigation

The defendant first asserts that his two attorneys at trial failed to conduct a reasonable investigation into the facts and the law of his case. He alleges that they failed to timely begin their investigation, to pursue indicated avenues of investigation, to determine necessary expert consultation, to adequately pursue funding for experts and investigation, and to competently hire and assess the one mental health expert they did hire. The defendant asserts that his trial counsel failed to develop a coherent theory of the case that was legally and factually supported and inherently consistent across the guilt and penalty phases. He maintains that, had his counsel conducted a reasonable investigation, they would have uncovered evidence of his mental illness and substance abuse relevant both to the guilt and penalty phases of his trial.

The post-conviction court concluded that defense counsel "adequately investigated the facts and law related to the guilt phase of [the defendant's] trial," Record 1 at 710, and that counsel were "not ineffective for failing to timely seek and secure necessary and appropriate investigative and expert assistance during the trial." Id.

The defendant was represented at trial by two attorneys who were found to meet the heightened criteria of experience and training required for appointment in capital cases. 2 Trial Record at 59. They confronted a significant challenge. The defendant had admitted to a family member that he killed Zachary Snider and disclosed where he had concealed the body. After his arrest, the defendant admitted in a videotaped confession that he had repeatedly molested the ten-year old boy and then killed him, first attempting to do so by suffocating him with a pillow, then by strangling him with a cord, and finally by suffocating him by wrapping a trash bag over his head. This crime occurred while the defendant was on probation for a prior conviction of child molesting.

The defendant's trial attorneys sought and obtained funds to hire a mitigation investigator, fact investigator, paralegal, and psychologist, and all billings were ordered sealed. The mitigation investigator had served as a sentencing consultant and mitigation investigator for nine years prior to the defendant's trial and had completed the Indiana Public Defender Council's death penalty mitigation training course. The psychologist, Dr. Lawrence Lennon, examined Stevens and later testified for the defense during the penalty phase of the trial. Dr. Lennon had been recommended by the mitigation investigator. Other members of the criminal defense community also told Stevens's attorneys that Dr. Lennon had done a "very nice job" in testifying in another death penalty case. Dr. Lennon holds a Ph.D. in clinical Psychology from Miami University in Ohio. He was a psychology professor at St. Joseph's College, where he spent four years as the chair of the Psychology Department,

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and was clinical director of the Child and Adolescent Psychiatric Center at Humana Hospital in Indianapolis from 1991 to 1994....

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