Pruitt v. State, 15S00-0512-PD-617.

Citation903 N.E.2d 899
Decision Date31 March 2009
Docket NumberNo. 15S00-0512-PD-617.,15S00-0512-PD-617.
PartiesTommy PRUITT, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
CourtSupreme Court of Indiana

Susan K. Carpenter, Public Defender of Indiana, Thomas C. Hinesley, Deputy Public Defender, Kathleen Cleary, Deputy Public Defender, Laura L. Volk, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

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

On Direct Appeal From The Denial of Post-Conviction Relief

SULLIVAN, Justice.

Tommy Ray Pruitt was sentenced to death for the murder of a Morgan County police officer. His conviction and sentence were upheld on direct appeal. We now affirm the post-conviction court's findings that Pruitt was not denied the effective assistance of trial or appellate counsel guaranteed by the Sixth Amendment, that he did not present it with newly discovered evidence that undermined confidence in his death sentence, and that his death sentence is not unconstitutional under the U.S. Supreme Court's decision in Atkins v. Virginia prohibiting sentencing persons with mental retardation to death.

Background

Our earlier opinion in this matter describes in detail the crimes of which Pruitt was convicted. See Pruitt v. State, 834 N.E.2d 90 (Ind.2005). In brief, Pruitt shot Morgan County Sheriff's Deputy Daniel Starnes five times on June 14, 2001, ultimately resulting in his death on July 10, 2001. Before the shooting, Officer Starnes had stopped Pruitt for erratic driving, obtained his driver's license and registration, called the information in, and was told that a recent robbery report suggested Pruitt might be in possession of stolen weapons. As Officer Starnes approached Pruitt's car for a second time, Pruitt emerged with a handgun and the two exchanged gunfire. Pruitt was shot at least seven times and Starnes was struck by five shots.

The State sought the death penalty based on the fact that the victim was a law enforcement officer killed in the course of his duties. Pruitt sought to have the death penalty charge dismissed on the ground that he is an individual with mental retardation and therefore ineligible for the death penalty. The trial court denied the motion after conducting a full pre-trial hearing to determine mental retardation. A jury subsequently convicted Pruitt of murder, attempted murder, possession of a handgun without a license, resisting law enforcement, four counts of receiving stolen property, and the lesser-included offense of aggravated battery. It recommended the death sentence and the trial court sentenced Pruitt to death for the murder and to an aggregate term of 115 years for the remaining counts.

We affirmed Pruitt's conviction and sentence on direct appeal. Pruitt, 834 N.E.2d at 98. Pruitt petitioned for post-conviction relief and now appeals the denial of that petition.

Discussion
I

For the most part, 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 defendants whose appeals have been rejected to raise a narrow set of claims through a petition for 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." Allen v. State, 749 N.E.2d 1158, 1163 (Ind. 2001) (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000)). Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata. Id.; see also Williams v. State, 724 N.E.2d 1070, 1076 (Ind.2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 886, 148 L.Ed.2d 793 (2001).

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. Allen, 749 N.E.2d at 1164; see also Bivins v. State, 735 N.E.2d 1116, 1121 (Ind.2000), reh'g denied. 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." Allen, 749 N.E.2d at 1164 (quoting Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993), reh'g denied). 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. (quoting Miller v. State, 702 N.E.2d 1053, 1058 (Ind.1998), cert. denied, 528 U.S. 1083, 120 S.Ct. 806, 145 L.Ed.2d 679 (2000)).

Pruitt contends that his conviction and death sentence must be vacated because his lawyers' performance at trial was so deficient that it denied him the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution. To establish ineffective assistance of counsel, Pruitt must show that "(1) counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) `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.'" Lambert v. State, 743 N.E.2d 719, 730 (Ind.2001) (quoting Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

As for the first component of an ineffective assistance claim — counsel's performance — we have noted 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." Lambert, 743 N.E.2d at 730 (quoting State v. Holmes, 728 N.E.2d 164, 172 (Ind.2000) (footnote omitted)).

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

II

Pruitt's first contention is that his trial counsel was ineffective for failing to investigate and present accurate evidence supporting his mental retardation claim. He claims that the omissions started before the pre-trial mental retardation hearing, continued during the hearing, and persisted throughout the trial.

A

We first evaluate his claims of alleged deficient performance before the pre-trial mental retardation hearing. Pruitt contends that (1) trial counsel failed to investigate and discover the fact that he was referred to special education classes in eighth grade; and (2) trial counsel failed to provide the court-appointed mental health expert with appropriate "informants" for assessing his adaptive functioning. (Br. of Pet.-Appellant at 39.) In his petition for post-conviction relief, Pruitt did not raise the claim that trial counsel failed to investigate and discover the fact that he was referred to special education in eighth grade. The post-conviction court (PC court) therefore did not discuss this claim in its order, and it is not available for this Court's review. See Allen, 749 N.E.2d at 1171 ("Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.") (citations omitted).

As for Pruitt's second claim, the PC court concluded that "trial counsel did not render ineffective assistance with respect to developing and presenting evidence of Petitioner's adaptive functioning." (App. to Br. of Pet.-Appellant 664.) Development and presentation of evidence regarding Pruitt's adaptive functioning is important because in order for him to qualify as an "individual with mental retardation," Indiana law mandates that he manifest both "significantly subaverage intellectual functioning" and "substantial impairment of adaptive behavior that is documented in a court ordered evaluative report." Ind. Code § 35-36-9-2 (Supp.2007) (emphasis added).

The PC court made certain findings of fact from which it concluded that trial counsels' performance in this regard was not deficient. It found that trial counsel had presented the testimony of Nora Wesley, Pruitt's neighbor when he was growing up, and Mary Lambert, Pruitt's aunt, on the areas of work1 and self-direction.2 (App. to Br. of Pet.-Appellant 665.) Dr. Schmedlen, the court-appointed expert on mental retardation, had determined that Pruitt met the American Association on Mental Retardation (AAMR) criteria for having poor adaptive function because of the two areas identified in the questioning of Ms. Wesley and Ms. Lambert. Id. Defense witness Dr. Hudson also had determined that Pruitt was significantly deficient in six of the ten AAMR criteria for adaptive functioning based on his subjective assessment of the information he had before him. Id.

These findings of fact are corroborated by the trial transcript....

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