Wallace v. State

Decision Date17 April 1990
Docket NumberNo. 84S00-8803-PC-00298,84S00-8803-PC-00298
Citation553 N.E.2d 456
PartiesDonald Ray WALLACE, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, Margaret Hills, Special Asst., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Petitioner Donald Ray Wallace, Jr., appeals from the denial of post-conviction relief by the Vigo Circuit Court. Wallace was found guilty by a jury in the Vigo Circuit Court of four counts of murder and the death penalty was recommended in all four cases. This Court affirmed the judgment of the trial court in Wallace's direct appeal. Wallace v. State (1985), Ind., 486 N.E.2d 445, cert. denied (1986), 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 723.

In post-conviction proceedings, the defendant bears the burden of proving his contentions by a preponderance of the evidence. Young v. State (1986), Ind., 500 N.E.2d 735. The trial judge, as trier of the facts, is the sole judge of the weight of the evidence and the credibility of the witnesses. Young, supra; Rufer v. State (1980), 274 Ind. 643, 646, 413 N.E.2d 880, 882. The defendant stands in the position of one appealing from a negative judgment. In such cases it is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached an opposite conclusion, that the decision will be disturbed as being contrary to law. Young, supra. The post-conviction relief process is not a substitute for a direct appeal, but is a process for raising issues not known at the time of the original trial or for some reason not available to the defendant at that time. Id.; Kimble v. State (1983), Ind., 451 N.E.2d 302, 303-04.

We note here, as we did in Young, supra, that Wallace seeks review of many issues that should have been set forth in his original appeal. Ordinarily, appellate review at this point would be foreclosed. It appears that although the State did plead the issue of waiver at post-conviction trial, it did not object to the issues being tried on their merits. Furthermore, since the State did not file cross errors on appeal alleging the trial court erred in failing to make special findings and conclusions on the issue of waiver, we cannot base our decision on the waiver principle. See, e.g., Johnson v. State (1974), 262 Ind. 183, 186, 313 N.E.2d 542, 544. Since the trial court decided all of these issues on the merits, we must review them on the merits as well.

Wallace sets forth a number of issues which we have consolidated into eighteen (18), as follows:

1. Denial of a fair post-conviction hearing based on hybrid representation;

2. Denial of a fair post-conviction hearing based on judicial interference in the questioning of witnesses;

3. Ineffective assistance of trial counsel;

4. Violation of Wallace's right against self-incrimination;

5. Improper denial of motion to appoint social psychologist to study jury attitudes regarding their advisory role;

6. Erroneous refusal to qualify expert on subject of ineffective assistance of counsel;

7. Improper denial of motion to compel discovery and motion for continuance;

8. Erroneous failure to admit testimony regarding polygraph examination results;

9. Improper denial of motion for a new trial based on newly discovered evidence;

10. Failure of jury to specify whether it found Wallace guilty of murder or felony murder;

11. Trial court error in giving State's tendered Instruction No. 1;

12. Trial court error in instructing the jury on both the guilt and sentencing phases while still in the guilt phase of trial;

13. Improper repetition by trial court and prosecutors to jury during voir dire and closing argument regarding the jury's advisory role in recommending the death penalty;

14. Trial court error in giving Final Instruction No. 3;

15. Improper reliance by the trial court upon non-statutory aggravating circumstances in making its death penalty determination;

16. Improper final argument by prosecutors;

17. Ineffective assistance of post-conviction and appellate counsel; and

18. Eighth Amendment challenge to electrocution as a cruel and unusual means of administering the death penalty.

For the reasons set forth below, we affirm the Vigo Circuit Court's denial of post-conviction relief.


Wallace raises several issues concerning the manner in which the trial judge conducted the post-conviction hearing which Wallace claims denied him of the basic and fundamental right to a fair hearing. It is apparent from the record that Wallace personally imposed himself in the conduct of the hearing, not only in addition to but at times in opposition to, the conduct of his counsel in attempting to present his case. Most notable was his insistence that he be permitted to act as co-counsel. His attorneys objected to this and not only expressed to him the lack of good judgment they saw in his decision, but asked the court not to permit him to take that stand. The attorneys' strategy was to attack the death sentence imposed and not his convictions for the four murders. This can be understood inasmuch as the evidence was very strong, and included statements by him that he did, in fact, commit the four murders. He wished to attack the convictions themselves and not the death penalty, and felt that if his convictions could be set aside, the death penalty would go down with them. There were times when Wallace asked the court to permit him to fire his lawyers and proceed pro se. At other times, he wished to continue with them but act as co-counsel or to have the situation that has come to be called hybrid representation. The trial court finally permitted the hybrid representation and was faced with conducting the hearing with Wallace and his attorneys acting as counsel. Wallace now asks us to find that the trial court abused its discretion in permitting the hybrid representation because a death penalty case is too serious a matter to allow a defendant to assist in his own trial and that control of tactics and strategy are traditionally the province of counsel. It is difficult to discern an abuse of discretion when a trial court gives defendant exactly what he asked for where the record shows he was clearly informed of the ramifications of the decisions he was making and made reasoned judgments on how he wished to proceed. The principle that a criminal defendant is entitled to representation of counsel whether or not he can personally afford it is so basic, we need not cite legal authority for it.

In Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, the United States Supreme Court held that a criminal defendant cannot be forced to have counsel and must be permitted to represent himself, provided he makes a knowing and intelligent waiver of his right to counsel. Wallace insisted he have both. It is well established that where counsel is competent the court may deny hybrid representation in its discretion. That is, where the trial court finds the defendant is represented by competent counsel, the court need not permit him to act as co-counsel. See Averhart v. State (1984), Ind., 470 N.E.2d 666, 689, cert. denied (1985), 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 323, and cases cited therein; United States v. Gaines (N.D.Ind.1976), 416 F.Supp. 1047. We see nothing in the facts here that would convince us the court would have erred in denying hybrid representation. Neither do we see, however, abuse of discretion in the trial court in permitting the hybrid representation at the insistence of Wallace himself. In the first place, the court heard arguments and motions from both counsel and Wallace and ruled on all of them. Second, to hold otherwise would be to place the trial judge in the untenable position of being unable to rule on the issue at all without committing error.


Wallace points out instances in which the trial judge questioned witnesses and made statements which he claims showed a judicial interference and attitude that denied him a full and fair hearing. We first note that this was a bench hearing; no jury was subjected to the judge's attitudes which might have unduly affected their judgment. Further, we observe the statements made by the court were more in the nature of expressing impatience over repetition of evidence and issues that, in his opinion, were time consuming and unnecessary. We see no abuse in this area meriting reversal.


In support of allegations of ineffective assistance of counsel in his original trial, Wallace's counsel at the post-conviction hearing attempted to call eight witnesses, consisting of family and acquaintances, to give Wallace's background by showing he had an unhappy childhood and was neglected by his parents. The purpose of this testimony was to demonstrate that these witnesses should have been called by trial counsel at the sentencing stage because their testimony would have been in mitigation of Wallace's commission of these crimes. Wallace objected to their testimony as he did not wish to make a direct attack on the sentence imposed but wished to direct his post-conviction petition to the murder convictions. He moved to strike that provision from the post-conviction petition over the objections of his own attorneys but the trial court permitted it to stay in. The court, however, granted his motion not to call these witnesses but did permit counsel to file affidavits of those witnesses, setting out their testimony as an offer to prove.

Wallace now claims the post-conviction court's order prohibiting the eight witnesses from testifying denied Wallace his right to present evidence in support of the allegations raised in his petition for post-conviction relief that he was denied the effective assistance of counsel at the penalty stage of his trial because his attorney did not present any mitigating evidence. We fail to see merit in this...

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