969 N.E.2d 46 (Ind. 2012), 74S00-0907-PD-320, Ward v. State

Docket Nº:74S00-0907-PD-320.
Citation:969 N.E.2d 46
Opinion Judge:SULLIVAN, Justice.
Party Name:Roy Lee WARD, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
Attorney:Stephen T. Owens, Public Defender of Indiana, Thomas C. Hinesley, Laura L. Volk, Deputy Public Defenders, Indianapolis, IN, Attorneys for Appellant. Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge Panel:DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.
Case Date:June 21, 2012
Court:Supreme Court of Indiana

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969 N.E.2d 46 (Ind. 2012)

Roy Lee WARD, Appellant (Petitioner below),


STATE of Indiana, Appellee (Respondent below).

No. 74S00-0907-PD-320.

Supreme Court of Indiana.

June 21, 2012

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Stephen T. Owens, Public Defender of Indiana, Thomas C. Hinesley, Laura L. Volk, Deputy Public Defenders, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

SULLIVAN, Justice.

Roy Lee Ward appeals the denial of his petition for post-conviction relief from his sentence of death. We affirm the post-conviction court's decision for the reasons set forth in this opinion.


This petition for post-conviction relief follows Ward's second trial during which he pled guilty to the 2001 rape and murder of fifteen-year-old Stacy Payne.1 Ward was sentenced to death following a penalty-phase jury trial. We earlier affirmed Ward's sentence on direct appeal. Ward v. State, 903 N.E.2d 946, aff'd on reh'g, 908 N.E.2d 595 (Ind.2009), cert. denied, --- U.S. ----, 130 S.Ct. 2060, 2061, 176 L.Ed.2d 417 (2010). Ward subsequently sought to have his death sentence set aside by filing a petition for post-conviction relief as permitted by Indiana Post-Conviction Rule 1. The postconviction court denied relief, and Ward now appeals.


Ward raises a number of issues in his petition for post-conviction relief, and we consider each in turn. This opinion proceeds in seven parts: Part I reviews the law governing postconviction relief and ineffective-assistance-of-counsel claims. Part II addresses Ward's claims that his trial counsel were ineffective in their mitigation investigation and presentation. Part III addresses Ward's claims that his trial counsel were ineffective in failing to challenge certain aspects of the State's case. Part IV addresses Ward's ineffective-assistance-of-appellate-counsel claims. Part V addresses Ward's ineffective-assistance-of-counsel claims under

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United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Part VI addresses Ward's claims that the Indiana Death Penalty Statute violates the Eighth Amendment. Finally, Part VII addresses Ward's claim under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).


By and large, completion of Indiana's direct appellate process closes the door to a criminal defendant's claims of error in conviction or sentencing. However, our law allows individuals whose appeals have been unsuccessful to raise a narrow set of claims through a collateral review procedure called " post-conviction relief." See Ind. Post-Conviction Rule 1(1). The scope of the relief available is limited to " ‘ issues that were not known at the time of the original trial or that were not available on direct appeal.’ " Pruitt v. State, 903 N.E.2d 899, 905 (Ind.2009) (quoting Allen v. State, 749 N.E.2d 1158, 1163 (Ind.2001)). Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata. Id.

A court that hears a post-conviction claim must make findings of fact and conclusions of law on all issues presented in the petition. See P-C.R. 1(6). The findings must be supported by facts and the conclusions must be supported by the law. Pruitt, 903 N.E.2d at 905; see also Allen, 749 N.E.2d at 1164. Our review on appeal is limited to these findings and conclusions.

Because the petitioner bears the burden of proof in the post-conviction court, see P-C.R. 1(5), an unsuccessful petitioner appeals from a negative judgment. A petitioner appealing from a negative judgment must show that the evidence as a whole " ‘ leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court.’ " Pruitt, 903 N.E.2d at 905 (quoting Allen, 749 N.E.2d at 1164). This means that " ‘ [we] will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion.’ " Id. (alteration in original) (quoting Allen, 749 N.E.2d at 1164).

Many of Ward's claims are grounded in his contention that he did not receive the minimum level of effective assistance from his counsel that the Constitution requires. We analyze such claims under the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this test, Ward must show (1) that counsel's performance was deficient based on prevailing professional norms; and (2) that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052; see also Pruitt, 903 N.E.2d at 905-06; Bivins v. State, 735 N.E.2d 1116, 1121 (Ind.2000).

As for the first component of an ineffective-assistance claim— counsel's performance— we have observed that " ‘ [c]ounsel is afforded considerable discretion in choosing strategy and tactics, and we will accord that decision deference. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.’ " Pruitt, 903 N.E.2d at 906 (alteration in original) (quoting Lambert v. State, 743 N.E.2d 719, 730 (Ind.2001)).

And as for the second prong, the U.S. Supreme Court has held that in most circumstances, deficient performance of counsel will be prejudicial when " ‘ there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’

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" Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). " ‘ A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ " Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). In assessing prejudice in the context of a claim of an inadequate mitigation investigation, we consider " ‘ the totality of the available mitigation evidence— both that adduced at trial, and the evidence adduced in the [post-conviction proceeding]— and ‘ reweig[h] it against the evidence in aggravation.’ " Porter v. McCollum, --- U.S. ----, 130 S.Ct. 447, 453-54, 175 L.Ed.2d 398 (2009) (per curiam) (second alteration in original) (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).


Ward's first claim is that he is entitled to post-conviction relief because his trial counsel were ineffective in investigating, preparing, and presenting evidence in mitigation of the death penalty. Specifically, he argues that trial counsel (a) failed to conduct an adequate mitigation investigation; (b) failed to have him evaluated by appropriate mental health experts in a timely and comprehensive manner; (c) failed to present certain mitigation testimony from lay witnesses that were called at trial; and (d) failed to inform the jury that his guilty plea was a mitigating circumstance. Although his arguments overlap to some degree, we consider each of them separately.


Ward claims that trial counsel were ineffective in their mitigation investigation. He argues that a " comprehensive investigation would have led to a much fuller and more mitigating penalty phase presentation that would have yielded a reasonable probability of a sentence less than death," Appellant's Br. 11, and cites evidence presented at the PC hearing to support his claim. Related to this, he argues that the mitigation investigator's " inability to complete the social history crippled the defense preparation." Id. at 13.


The PC court concluded that Ward had failed to establish deficient performance or prejudice in this regard, and it made findings of fact to support its conclusion.

First, the PC court found that " trial counsel made the efforts necessary to learn all relevant and probative information about Ward and his background to present a thorough, if not winning, mitigation presentation." PCR App. 324. Moreover, it found that based on the evidence offered at the PC hearing and considering that they were successful in appealing his first trial, Ward's trial counsel were " aware of any character or background evidence that could have been presented and made reasonable strategic choices about what mitigation to present." Id. It found that trial counsel had presented testimony from Ward's mother, his grandmother, his brother, his former brother-in-law, his half-brother by his father, a former employer, a former sexual partner, his former probation officer, and a former friend to give the jury lay-witness background information about Ward's life. Id. The PC court generally concluded that the evidence presented at the PC hearing was " either cumulative of what was presented at trial or otherwise had no capacity to materially improve the mitigating quality of [Ward's] case." Id. at 324-25.

With regard to the mitigation investigator's performance, the PC court found that

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although she was experiencing personal problems while working on Ward's case, " the defense was able to get what it was looking for." Id. at 324. And although the investigator was unable to complete a social history as requested, trial counsel testified that she had given her expert " ‘ [a]ll the police reports that had to do with the public indecency charges as well as all the probation records, education records, any sort of record that has anything to do with any prior mental health treatment evaluation of whatever.’ " Id. (alteration in original) (quoting PCR Ex. 37, at 46).

Lastly, the PC court found that there was " no relevant probative evidence of mitigation presented in the first trial that...

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