Baer v. State

• Decision Date: 28 June 2011
• Docket Number: No. 48S00–0709–PD–362.,48S00–0709–PD–362.
• Citation: 942 N.E.2d 80
• Parties: Fredrick Michael BAER, Appellant (Petitioner below),v.STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

942 N.E.2d 80

Fredrick Michael BAER, Appellant (Petitioner below),

v.STATE of Indiana, Appellee (Respondent below).

No. 48S00–0709–PD–362.

Supreme Court of Indiana.

Jan. 26, 2011.Rehearing Denied June 28, 2011.

Susan K. Carpenter, Public Defender of Indiana, Thomas C. Hinesley, Joanna Green, Deputy Public Defenders, Indianapolis, IN, Attorneys for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Appeal from the Denial of Petition for Post–Conviction Relief

SHEPARD, Chief Justice.

A jury found Fredrick Michael Baer guilty of two counts of murder and sentenced him to death. In doing so, it rejected his request for a verdict of guilty but mentally ill. We affirmed on direct appeal. Baer then sought post-conviction relief, which the trial court denied. On appeal from that denial he argues ineffective assistance of trial and appellate counsel, that his death sentence violates the Eighth Amendment of the U.S. Constitution, and that the trial judge erred in rejecting his guilty but mentally ill plea. We affirm the post-conviction court.

Facts and Procedural History

Fredrick Michael Baer saw Cory Clark outside her duplex as he passed in his car, turned around, and went back to her home. He entered Clark's apartment after asking to use the phone to call his boss. He intended to rape Cory Clark, but after exposing her vagina decided against it for fear of contracting a disease. Realizing she could identify him, he cut her throat with a foldable hunting knife. Upon seeing what Baer was doing, four-year-old Jenna Clark ran from the room, but Baer caught her and cut her throat to avoid her identifying him. (PCR Ex. E at 2.)

Baer was charged with two counts of murder and various other offenses. The court entered pleas of not guilty on all counts. Baer subsequently moved to withdraw his not-guilty pleas and instead to plead guilty but mentally ill (GBMI). The prosecution objected. The court appointed two mental health experts to examine Baer. After considering their reports, the court rejected Baer's proposed GBMI plea, reasoning that although both experts concluded Baer was mentally ill, neither report sufficiently stated he was mentally ill at the time of the crime. (Trial Tr. at 172–73, 223.)

Both the prosecution and the defense made clear their intended strategies during jury selection. The defense previewed its case as one in which it would only argue for the jury to find Baer mentally ill, not that he had not committed the crimes. (Trial Tr. at 369–70.) In response to the prosecutor's concerns raised in a bench conference, Baer's counsel also stated that the appellate consequences of a GBMI verdict coupled with a death sentence were unclear. (Trial Tr. at 435.) This was the first time either side raised this issue. Baer v. State, 866 N.E.2d 752, 760 (Ind.2007).

Throughout jury selection, the prosecutor referred to these appellate uncertainties, saying for example, “The law is not clear in this state on whether we can execute somebody who's guilty but mentally ill. The jury makes a finding of guilty but mentally ill. It may happen. It may not. Our Supreme Court has not decided that case yet.” (Trial Tr. at 649.) He frequently stated or implied that finding Baer guilty but mentally ill would mean concluding that he did not know the wrongfulness of his actions, which is not an element of GBMI but is required for insanity. (Trial Tr. at 386, 494–95, 924–26, 937, 941–43.) The prosecutor also told the jury that the legislature might someday make parole available to defendants sentenced to life without parole, though he made clear that this was not presently the case. (Trial Tr. at 920–21.) Finally, in qualifying jurors for a death penalty trial, he inquired about the ability to sentence Baer to death very directly, asking one juror, “Do you have the strength to tell that man, that defendant, the guy with the striped shirt on ... you killed these two people and you should forfeit your life for that. Something you could do?” (Trial Tr. at 568.)

During trial, Baer's defense focused almost entirely on convincing the jury he suffered mental illness at the time of the crime. All the expert witnesses who testified, whether called by the defense or the court, concluded that Baer suffered from mental illness. (Trial Tr. at 1779, 1902, 1909, 1929–30; PCR App. at 345.) In closing argument, the prosecution compared mental illness to self-defense as an “excuse” to evade responsibility for Baer's actions and continuing to mention wrongfulness as something which the jury should consider. (Trial Tr. at 2055, 2113–14.)

The jury found Baer guilty on all counts and rejected his GBMI request. During the penalty phase, it considered the aggravating and mitigating circumstances and recommended a death sentence, finding that the State had proven all five charged aggravators and that they outweighed the mitigating circumstances. (PCR App. at 328.) The court sentenced Baer to death for the two murders.

Baer's appeal asserted (1) prosecutorial misconduct; (2) erroneous admission of recorded telephone calls from jail; (3) trial court failure to comply with proper procedures in handling prospective jurors; and (4) inappropriateness of the death sentence. Baer, 866 N.E.2d at 755. Baer's prosecutorial misconduct claims focused on the prosecutor's attempt “to condition the jury to consider the effect that guilty but mentally ill verdicts might eventually have on the execution of a death sentence.” Id. at 755–56. Extensively quoting the record, we concluded that because the defense first raised any appellate uncertainty the prosecutor did not act improperly in his “responding and presenting argument in order to resist the defense's strategy of gaining appellate advantage” Id. at 761.

Baer's subsequent challenge in post-conviction totaled 103 allegations. (PCR App. at 329–39, 521–23.) In short, these covered the following areas: prosecutorial misconduct, structural errors in the trial judge's rejection of Baer's GBMI plea and failure to correct the alleged prosecutorial errors, ineffective assistance of appellate counsel, ineffective assistance of trial counsel, cruel and unusual punishment based on Indiana's method of execution, and a challenge to Baer's death sentence based on being mentally ill. (PCR App. at 329–39.)

Baer presented the PCR court with additional expert and lay testimony about his mental illness. This included a youth counselor who worked with him at a school for juveniles with criminal histories, an ex-wife who had known him most of his life, and a fellow prisoner, all of whom testified about his mental illness, notably his auditory hallucinations. (PCR Tr. at 86–89, 136, 154, 182, 187.) None of these witnesses had testified at trial. The PCR court did not consider the prisoner's testimony because rather than “previously undiscovered evidence” under Ind.Code § 35–50–2–9(k) (2008), he was simply a witness about whom Baer did not tell defense counsel. (PCR App. at 349–50.) The PCR court determined that the other witnesses largely duplicated the evidence presented at trial, thus failing to undermine confidence in the jury's rejection of the GBMI verdict. (PCR App. at 345.)

In rejecting Baer's prosecutorial misconduct, structural error, and method of execution claims, the PCR court found these arguments foreclosed because he had not raised them at trial or on direct appeal. (PCR App. at 340, 348.) As for Baer's claim of ineffective assistance of trial and appellate counsel, the PCR court reasoned that the PCR evidence about mental illness failed to undermine confidence in the verdict or Baer's sentence. (PCR App. at 341–48.)

The PCR court rejected Baer's constitutional challenge to the death penalty as applied to mentally ill defendants, saying it was “procedurally defaulted” in light of the fact that the U.S. Supreme Court's precedent has not changed since Baer's 2005 trial and Baer had made this argument first on PCR. (PCR App. at 351–52.) Baer argued that Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), opened the door to such a challenge, but the court rejected this argument because Kennedy involved the Court's rejection of the death penalty for a class of crimes, not a class of criminals as in prior relevant cases. (PCR App. at 351–52.)

Because this is an appeal from post-conviction determination on a sentence of death, we have exclusive jurisdiction. Ind. Post–Conviction Rule 1(7). In post-conviction proceedings, we will reverse a trial court's findings and judgment only upon a showing of clear error in a factual determination or error of law. Helton v. State, 907 N.E.2d 1020 (Ind.2009).

I. Guilty But Mentally Ill

Baer's various GBMI strategies sought an alternative verdict available when a defendant suffers from mental illness or deficiency but nonetheless remains capable of discerning right from wrong. Ind.Code § 35–36–2–3 (2008). “Mentally ill” for these purposes means “having a psychiatric disorder which substantially disturbs a person's thinking, feeling, or behavior and impairs the person's ability to function; ‘mentally ill’ also includes having any mental retardation.” Ind.Code § 35–36–1–1 (2008).

The difference between guilty and guilty but mentally ill does not compel a difference in sentencing. Ind.Code § 35–36–2–5(a) (2008 & Supp.2010). When a court enters a verdict of GBMI, the defendant must be psychiatrically evaluated before sentencing. Ind.Code § 35–36–2–5(b). Then, when the Department of Correction receives the defendant as a prisoner, he is further evaluated and treated in a manner as indicated by the mental illness. Ind.Code § 35–36–2–5(c). This treatment may be done by the Department of Correction or the Division of Mental Health and Addiction, either during imprisonment or during defendant's probation. Ind.Code § 35–36–2–5(c) & (d).¹

Baer never argued that he was...