Opinion
Cause No. IP95-0215-C-B/S
November 14, 2002
ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS
Donald Ray Wallace, Jr., was convicted in the Vigo Circuit Court of the murders of Patrick and Teresa Gilligan and their two small children, Lisa and Gregory. He was sentenced to death. After challenging his conviction and sentence in the Indiana courts, he brought the present action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). His claims have been fully developed and considered, together with the expanded record, and for the reasons explained in this Entry, Wallace's petition for a writ of habeas corpus must be denied.
I. BACKGROUND A. State Proceedings
Wallace was charged in Vanderburgh County with four counts of murder. The death penalty was sought on grounds that the killings were knowingly done in commission of a burglary and that Wallace had killed more than one person. Following a change of venue, Wallace was tried in the Vigo Circuit Court. He was convicted of four counts of murder on September 22, 1982, and sentenced to death on October 21, 1982. His convictions and sentence were affirmed on direct appeal in Wallace v. State, 486 N.E.2d 445 (Ind. 1985), cert. denied, 478 U.S. 1010 (1986) (Wallace I).
Wallace sought post-conviction relief. His petition for such relief was denied by the trial court and this decision was affirmed on appeal. Wallace v. State, 553 N.E.2d 456 (Ind. 1990), cert. denied, 500 U.S. 948 (1990) (Wallace II).
Wallace filed a second petition for post-conviction relief on September 1, 1992. This second petition was denied by the trial court. This denial of relief was affirmed on appeal. Wallace v. State, 640 N.E.2d 374 (Ind. 1994), cert. denied, 514 U.S. 1115 (1995) (Wallace III).
B. The Crimes
The facts surrounding the crimes of which Wallace has been convicted were summarized by the Indiana Supreme Court:
. . . On January 14, 1980, Indiana State Trooper, Thomas Snyder, was called to the home of Ralph Hendricks which had been reported burglarized. In connection with the investigation, Trooper Snyder went to the Gilligans' house, next to Hendricks' house, to inquire whether the residents therein might have seen or heard anything unusual. The window to the Gilligans' back door was broken. Snyder checked inside the house and discovered four dead bodies in the family room. They were Patrick and Teresa Gilligan and their two children, ages four and five. Mrs. Gilligan had her hands tied behind her, and the two children were tied together. Coroner, David Wilson, M.D., testified that the cause of all four deaths, as listed on the inquests, was brain damage from gunshot wounds.
The evidence also showed that Defendant Donald Ray Wallace, Jr., was seen driving a blue Plymouth automobile on the night in question. This automobile belonged to Richard Milligan. Milligan and Milligan's girlfriend, Debbie Durham, were known to have committed several prior burglaries using this same automobile. However, Richard Milligan was in jail on burglary charges this particular night. Witnesses recalled seeing this automobile in the neighborhood about the time the murders occurred.
Donna Madison was at the home of her sister, Debbie Durham, the night in question. Earlier that evening she witnessed Wallace driving the blue Plymouth. Between 7:00 p.m. and 9:00 p.m., Wallace returned to Debbie's home, and Donna heard him ask for matches. He found a cigarette lighter, and Donna saw him in the backyard burning the jacket he had been carrying over his shoulder upon arrival. Neighbor Sherry Grayson saw a fire at the same time and saw a man with shoulder length hair, which was characteristic of Wallace, standing by it. Officer John Crosser recovered the remains of the jacket and other items found on the ground. Among these items were a set of wedding rings without stones in them and some fragments of glass. State Police Specialist Oliver examined the glass and found the pieces fit into a pattern matching the hole in Gilligans' window.
On the evening in question, Defendant Wallace and Debbie Durham had Carl Durham take pictures of them with many of the items taken from the Gilligan and Hendrick residences. The pictures, also showing money and pistols connected with these burglaries, were admitted into evidence.
Debbie Durham gave Serologist William Kune the blue jeans worn by Wallace the night of the crime, upon which Kune found type AB human blood. Wallace had blood type O, but Mrs. Gilligan and one of the children had blood type AB. Kune also found type B blood on a brown cotton glove, identified as one of a set Wallace wore while burglarizing homes. Mr. Gilligan had type B blood.
William Madison, brother of Debbie and Donna, came to Debbie Durham's home the evening in question and saw the Defendant come in. Defendant, wearing a gun in a holster, showed William Madison a briefcase with a couple of guns in it. Defendant also had in his possession a CB, a police scanner, and some rings. That same night Defendant attempted to sell to Randy Rhinehart some guns, a CB, and a scanner. Several witnesses testified that Debbie Durham displayed to them pieces of jewelry, which were later traced to the Gilligans. Debbie gave one of the rings to Officer O'Risky. It was identified by Dorothy Sahm, Teresa Gilligan's mother, as belonging to Teresa. A jeweler that had sized the ring and kept pictures of it also identified it as belonging to Teresa. There was a great deal of property in addition to that recited above which was found in Wallace's and Durham's possession and which was traced to the Gilligans. Much of the property recovered that night was also traced to the Hendricks' residence. Entry was gained in both of the homes by putting tape on the window and then breaking it in, in a manner that reduced the sound of breaking glass. Wallace and Milligan were known to gain entry for purposes of burglary in this manner.
Friends of Defendant, Mark Boyles and Anita Hoeche, testified they received a phone call on January 15th from Defendant who said he was in trouble and in need of a ride. While riding in the car, Defendant told them he had gotten too greedy the night before. He said he had broken into one house and never should have gone to the next house because he got caught there. He told them after he got caught a man in the house was giving him trouble, and he had to tie up the entire family. He said the little girl was crying and screaming, and it was bothering him. He felt he could not let the children grow up with the trauma of not having parents, and he did not "want to see the kids went [sic] through the tragedy of seeing their parents being killed," so he killed them also. (Record at 5083.) He said the woman was screaming, and he had to shut her up. Later that night Defendant, while hiding in the attic of Hoeche's house, was arrested.
Wallace's statements coincided with those given by Debbie Durham. Debbie Durham testified that when Wallace visited her on January 14th, around 9:30 p.m., he immediately took his clothes off and gave them to her so he could change. On his blue jeans there was a piece of fleshy-whitish-red matter. Debbie asked what it was, and Wallace stated it had to be a piece of brain because he had shot the residents, who had caught him, in the head. He told her a man had come in from the garage and surprised him. They struggled, and Wallace made him bring in the rest of the family. He said he tied up the man, made the woman tie up the children, and then Wallace tied her up. He shot the man in the head after possibly breaking the man's neck in the struggle. He said he then shot the woman twice. The children were crying for the mother, so he shot each one of them once. He said he shot the adults because they could identify him.
Wallace I, 486 N.E.2d at 449-450.
C. Wallace's Claims
Wallace presents eleven grounds in his petition for a writ of habeas corpus, which are reordered for this review and consolidated into ten. These restated claims are as follows:
GROUND ONE: Wallace was denied a fair trial because he was denied a fair and reliable determination as to his competency to stand trial.
GROUND TWO: Wallace was denied a fundamentally fair trial and a fair and reliable sentencing determination due to the improper treatment of evidence, improper evidentiary rulings, and other acts and omissions of the trial court.
GROUND THREE: Wallace's intoxication at the time of the offense was erroneously precluded from being considered as a defense to murder and as a mitigating circumstance for sentencing purposes.
GROUND FOUR: Wallace was denied a fair and reliable sentencing determination, and a full and fair hearing in all prior proceedings due to the prosecution's misconduct during the various phases of Wallace's trial.
GROUND FIVE: Wallace was denied a fair trial, a sentencing determination and freedom from cruel and unusual punishment due to infirmities in the jury instructions at trial.
GROUND SIX: Wallace was denied a fundamentally fair penalty phase trial and a reliable sentencing decision due to factors that diminished the jury's sense of responsibility for their sentencing decision.
GROUND SEVEN: Wallace was denied a fair and reliable sentencing determination, because his death sentence was based on invalid aggravating circumstances and a failure to properly consider all relevant mitigating evidence.
GROUND EIGHT: Wallace was denied the effective and meaningful assistance of counsel in all proceedings in the state court, in that he was not accorded the standard of representation for effective assistance of counsel in capital proceedings during all phases of his state case.
GROUND NINE: Wallace was subjected to multiple violations of his constitutional rights in the execution of his sentence, the death penalty.
GROUND TEN: Wallace was subjected to violations of his constitutional rights in all previous proceedings, as well as the cumulative effect of the errors committed during the state court proceedings.
Although each of Wallace's claims ostensibly invokes multiple constitutional provisions, the court will confine its discussion in this case to matters bearing some relation to the facts, to the records of the state court proceedings, and to the arguments actually presented in the Indiana courts.
II. LEGAL STANDARDS A. Scope of Relief
Wallace seeks relief in this action pursuant to 28 U.S.C. § 2254(a). In the exercise of its habeas jurisdiction, a federal court may grant relief only if the petitioner shows that he is in custody "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2254(a).
For clarity, we note that Wallace's petition was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Accordingly, the AEDPA does not apply to this case. Wright v. Walls, 288 F.3d 937, 941 (7th Cir. 2002). When the AEDPA does not apply, pre-AEDPA standards of review apply. Abrams v. Barnett, 121 F.3d 1036, 1037 (7th Cir. 1997). Prior to the AEDPA, federal courts disregarded the state court's legal conclusions and reached independent judgments on the issues presented to them, but deferred to the state court's findings of fact. Koo v. McBride, 124 F.3d 869, 872 (7th Cir. 1997). Under that standard, state court findings of historical fact are presumed correct, while mixed questions of fact and law, and questions of law are reviewed de novo. See 28 U.S.C. § 2254(d) (1994); Sumner v. Mata, 455 U.S. 591, 597 (1982); Rodriguez v. Peters, 63 F.3d 546, 554 (7th Cir. 1995). Even so, a federal habeas court is not "charged with determining guilt or innocence, but rather with ensuring that a petitioner is not being held in violation of the Constitution." Harris v. Kuhlmann, 115 F. Supp.2d 326, 328 (E.D.N.Y. 2000).
A corollary rule that limits a federal habeas court is that the states are free to make and interpret their own laws. In Coleman v. O'Leary, 845 F.2d 696 (7th Cir.), cert. denied, 488 U.S. 972 (1988), the Seventh Circuit Court of Appeals reviewed the importance of recognizing the meaning of state law as determined by state courts:
"A judgment of a state court on a question of state law conclusively establishe[s]' the meaning of that law. Bute v. Illinois, 333 U.S. 640, 668, 68 S.Ct. 763, 778, 92 L.Ed.986 (1948). [I]t is for the [state] courts to say under its law what duty or discretion the court may have had. . . . We are not at liberty to conjecture that the trial court acted under an interpretation of the state law different from that which we might adopt and then set up our own interpretation as a basis for declaring that due process has been denied. We cannot treat a mere error of state law, if one has occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question.' Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 1257, 92 L.Ed. 1683 (1948). Whether state statutes shall be construed one way or another is a state question, the final decision of which rests with the states. The due process clause in the Fourteenth Amendment does not take up the statutes of the several States and make them the test of what it requires; nor does it enable this Court to revise the decisions of the state courts on questions of state law.' Herbert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926). We are of course bound by a State's interpretation of its own statute and will not substitute our judgment for that of the State's when it becomes necessary to analyze the evidence for the purpose of whether that evidence supports the findings of a state court.' Garner v. Louisiana, 368 U.S. 157, 166, 82 S.Ct. 248, 253, 7 L.Ed.2d 207 (1961). We have no power to revise judgments on questions of state law.' Henry v. Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 567, 13 L.Ed.2d 408 (1965)."
Coleman, 845 F.2d at 699-700 (quoting Cole v. Young, 817 F.2d 412, 429-30 (7th Cir. 1987) (dissenting opinion). See Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1370 (7th Cir. 1994) (habeas corpus jurisdiction is limited to evaluating alleged violations of federal statutory or constitutional law), cert. denied, 514 U.S. 1037 (1995). It is not the function of federal courts to reevaluate state court determinations on state law issues. Bloyer v. Peters, 5 F.3d 1093, 1098 (7th Cir. 1993) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("Today, we reemphasize that it is not the province of a federal habeas court to re-examine state law determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.")).
B. Indiana's Capital Punishment Law
In assessing certain of Wallace's claims in this case, we begin with a review of Indiana's capital punishment adjudication process. Thirty of the thirty-seven states that provide for the death penalty give the life-or-death decision solely to the jury. Of the remaining seven states, only Florida, Alabama and Indiana allow a judge to override a jury's recommendation against death. Spaziano v. Florida, 468 U.S. 447, 463 n. 9 (1984). In Roark v. State, 644 N.E.2d 565, 570 (Ind. 1994), the Indiana Supreme Court summarized the applicable Indiana statutory scheme, IND. CODE § 35-50-2-9, as follows:
Our death penalty statute provides three distinct steps which the trial court must take in reaching its sentencing decision in cases in which the jury has found the defendant guilty of Murder and the State seeks the death penalty. First, the trial court must find that the State has proved beyond a reasonable doubt that at least one of the aggravating circumstances listed in the death penalty statute exists. Second, the trial court must find that any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances. This evaluation and weighing process should be described in the trial court's sentencing statement. Third, before making the final determination of the sentence, the trial court must consider the jury's recommendation. However, the death penalty statute also provides that the trial court is not bound by the jury's recommendation.
Indiana's statute was amended, effective July 1, 2002, in ways that are not applicable to this case.
C. Procedural Default
"[H]abeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim is properly presented to the district court." Keeney v. Tamayo-Reyes, 504 U.S. 1, 14 (1992) (O'Connor, J., dissenting) (internal citations omitted). "It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted." Breard v. Greene, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). The purpose of the rules of procedural default is to "afford to the state courts an opportunity to correct a constitutional violation," Duckworth v. Serrano, 454 U.S. 1, 4 (1981).
Before a federal court will consider a habeas petition, a petitioner must satisfy several procedural requirements. First, a petitioner must exhaust state remedies — that is, give the state's highest court an opportunity to address each claim. See O'Sullivan v. Boerckel, 526 U.S. 838, 839, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001). To satisfy this requirement, a petitioner must present to the state judiciary both the operative facts and legal principles that control each claim. See Wilson, 243 F.3d at 327. Second, the petitioner must comply with state rules to avoid procedurally defaulting his claims. See Boerckel v. O'Sullivan, 135 F.3d 1194, 1196-97 (7th Cir. 1998), rec'd. on other grounds by O'Sullivan v. Boerckel, 526 U.S. 838, 849, 119 S.Ct. 1728, 144 LED.2d 1 (1999).
Mahaffey v. Schomig, 294 F.3d 907, 914-15 (7th Cir. 2002). Exhaustion, or more aptly, non-exhaustion, is not an issue in this action, but procedural default is a facet of nearly all of Wallace's habeas claims. Procedural default occurs either: (1) when a petitioner failed to exhaust state remedies and the court to which he would have been permitted to present his claims would now find such claims procedurally barred, Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1990); or (2) "if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id., at 729. A state procedural rule is "adequate" only if it is "firmly established and regularly followed" at the time the alleged procedural default occurred. Ford v. Georgia, 498 U.S. 411, 423-24 (1991). It is not uncommon for a claim to have been resolved in state court on the basis of a procedural rule and, in the alternative, on the merits. When this occurs, it has been recognized that:
A state court may reach the merits of a federal claim in an alternative holding; if it does so explicitly, then the independent and adequate state ground doctrine "curtails reconsideration of the federal issue on federal habeas."
Moore v. Bryant, 295 F.3d 771, 775 (7th Cir. 2002) (citing cases).
Insofar as pertinent here, the following parameters are recognized under Indiana law with respect to the need to present issues in a direct appeal and the consequence of failing to do so.
A post-conviction relief proceeding is not a substitute for trial and appeal, but is a process for raising issues that were unknown or not available at trial.
Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). If an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App. 1995). However, waiver of an issue may be avoided if the failure to present an issue on direct appeal was due to the ineffectiveness of appellate counsel. Sharp v. State, 684 N.E.2d 544, 546 (Ind.Ct.App. 1997), trans. denied 690 N.E.2d 1187 (Ind. 1997).
Smith v. State, 774 N.E.2d 1021, 1022 (Ind.Ct.App. 2002). See also Lane v. Richards, 957 F.2d 363, 366 (7th Cir.) (issues were not presented on direct appeal and relief would be barred by procedural default), cert. denied, 506 U.S. 842 (1992). Additionally, it has been recognized by the Indiana state courts:
While claims that were available, but not presented, on direct appeal are generally forfeited in post-conviction proceedings, forfeiture may not apply when the claimed error is fundamental. Conner v. State, 711 N.E.2d 1238, 1246 (Ind. 1999). If an issue was available on direct appeal, but not litigated, it is waived. Haynes v. State, 695 N.E.2d 148, 151 (Ind.Ct.App. 1998), trans denied. However, there exists an exception to the waiver rule in circumstances where the post-conviction court committed "fundamental error." Id. at 152. This exception is viewed as an extremely narrow one, available only when the record reveals clearly blatant violations of basic and elementary principles of due process, and the harm or potential for harm cannot be denied. Id. The doctrine of fundamental error has been described as a failure to meet the requirements of due process of law; however, it is clear that fundamental error is not equated with constitutional error. State v. Daniels, 680 N.E.2d 829, 835 (Ind. 1997). To qualify as fundamental error, an error must be so prejudicial to the rights of the defendants to make a fair trial impossible. Conner, 711 N.E.2d at 1246. However, the fundamental error doctrine is not to be used as a safe harbor for defendants who fail to raise proper and timely objections at trial. Haynes, 695 N.E.2d at 152. Rather, the post-conviction fundamental error standard requires the defendant to persuade the court, by a preponderance of the evidence, that a violation of basic principles of law caused the defendant's conviction or sentence to be invalid. Conner, 711 N.E.2d at 1246.
Sims v. State, 771 N.E.2d 734, 740 (Ind.Ct.App. 2002). Indiana's doctrine of fundamental error is an adjudication which supplies "an independent and adequate state ground for the judgment, so that questions of federal law no longer affect[ed] the outcome." Jenkins v. Gramley, 8 F.3d 505, 507 (7th Cir. 1993); see Willis v. Aiken, 8 F.3d 556, 561 (7th Cir. 1993) (Indiana's review under the fundamental error doctrine is an independent and adequate state law ground for its decision). Accordingly, when the Indiana state courts have reached the merits of a claim under Indiana's doctrine of fundamental error, this is a signal for federal habeas corpus purposes that the issue has been waived, triggering the cause and prejudice or fundamental miscarriage of justice requirements for the federal habeas court to also reach the merits of the claim. Id.
With respect to the rules concerning the doctrine of procedural default and the inclusion of claims in a post-conviction action, the rule in Indiana is this: "In seeking post-conviction relief, a petitioner must assert all available grounds for relief in his original post-conviction petition. Kirk v. State, 632 N.E.2d 776 (Ind.Ct.App. 1994) (citing Indiana's post-conviction Rule 1(8)).
The consequence of presenting in a federal habeas petition a claim which has been procedurally defaulted is quite clear:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750. "Cause" for a procedural default exists if the petitioner can demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice is demonstrated by showing that the errors worked to the petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982).
Wallace maintains that none of his claims are subject to procedural default, and therefore he does not address cause and prejudice. However, we shall apply the rules concerning procedural default to Wallace's claims, at least where the respondent has argued their application, and of necessity will not consider arguments Wallace now makes to the extent those arguments seek to expand or add to the arguments he presented to the Indiana state courts.
III. DISCUSSION A. Competency to Stand Trial/Medication Free Trial
Wallace's arguments based on his claim of mental incompetence to stand trial fall into two categories. In the first, he challenges the propriety of holding a fourth competency hearing after the first three hearings had resulted in findings of incompetence to stand trial. In the second category, he claims that the trial court violated his right to stand trial free of the effects of any medication.
1. Competency Determinations.
During the course of a pretrial hearing, the trial court found a reasonable basis on which to explore Wallace's competence to stand trial. The following proceedings ensued:
The trial court appointed two psychiatrists to examine Wallace. These psychiatrists submitted their reports, following which a competency hearing was held on May 16, 1980. At the conclusion of this first competency hearing, the court found Wallace incompetent to stand trial. Wallace was committed to the Indiana Department of Mental Health and was admitted to Logansport State Hospital, where he began to receive medication, including antipsychotic drugs.
A second competency hearing was conducted three and a half months later, on September 2, 1980, after the Superintendent of Logansport State Hospital certified to the trial court, pursuant to IND. CODE § 35-36-3-3, that Wallace was competent to stand trial. Medical evidence confirmed this change in Wallace's mental condition; however, at the second hearing Wallace appeared heavily sedated from medication, and the judge ruled that Wallace's competency depended upon an adjustment in his medication, necessitating his hospitalization for further treatment.
A third competency hearing was held again three and a half months later, on January 16, 1981. Three psychiatrists testified that Wallace was exhibiting symptoms of schizophrenia, and that the suggested modified treatment as referenced at the previous hearing had failed. One of the psychiatrists characterized Wallace as a chronic liar, but generally the doctors did not think that Wallace was feigning his condition. The court, once again, found Wallace incompetent to stand trial.
On May 3, 1982, the State filed a Motion for Hearing on Competency. That motion was granted, and a fourth competency hearing was held on June 16, 1982. At that hearing, the evidence was conflicting, though the State produced several witnesses as well as documentary evidence to demonstrate that Wallace had feigned his mental illness from the beginning and that he was very much aware of his legal situation. This evidence is summarized in Wallace I, 486 N.E.2d at 452-53. The trial court ruled on June 28, 1982, that Wallace was competent to stand trial.
Wallace presented a challenge to the trial court's competency determination in his direct appeal. Wallace I, 486 N.E.2d at 452-55.
The Due Process Clause of the Fourteenth Amendment prohibits states from trying and convicting mentally incompetent defendants. Pate v. Robinson, 383 U.S. 375, 384-86 (1966). The Supreme Court has "repeatedly and consistently recognized that `the criminal trial of an incompetent defendant violates due process.'" Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (citations omitted). The Constitution forbids the trial of a defendant who is unfit to assist in his own defense because our adversarial system of justice depends on vigorous defenses. Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996), cert. denied, 117 S.Ct. 1141 (1997). The issue of a defendant's competency to stand trial centers on whether he "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 (1960). As such, a mentally ill defendant may be found competent if he meets this standard. See Eddmonds, 93 F.3d at 1314 (citing Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995) (stating "neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial")). "Not every manifestation of mental illness demonstrates incompetence to stand trial; rather the evidence must indicate a present inability to assist counsel or understand the charges." United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984), cert. denied, 469 U.S. 1193 (1985); Galowski v. Berge, 78 F.3d 1176, 1182 (7th Cir. 1996), cert. denied, 519 U.S. 878 (1996). As the Seventh Circuit opined in Eddmonds:
There is no question that [the defendant] is a disturbed man, and has been so for some time. . . . But that doesn't necessarily mean he was unfit for trial. If it did then no one guilty of heinous crimes could be tried. Fitness for trial is a much narrower concept than moral or social wellness.
Id., 93 F.3d at 1314.
A federal court reviewing a state court's factual finding must presume that the state court's finding is correct unless the petitioner can show that it is not fairly supported by the record. 28 U.S.C. § 2254(d)(8); Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam) (applying this standard to review of determination of competence to stand trial). The determination of whether Wallace was competent to stand trial was essentially a fact determination. Thompson v. Keohane, 516 U.S. 99, 111 (1995) (citing Maggio, 462 U.S. at 117); United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1011 (7th Cir. 1984), cert. denied, 469 U.S. 1193 (1985); United States ex rel. Jenkins v. Dobucki, 12 F. Supp.2d 827, 831 (N.D.Ill. 1998). In fact, the Seventh Circuit Court of Appeals has cited the Supreme Court's decision in Maggio, 462 U.S. at 117, as support for its holding that "a federal habeas court may not substitute its own judgment concerning the credibility of witnesses in a state proceeding to determine a defendant's competence to stand trial." United States ex rel. Bilyew v. Franzen, 842 F.2d 189, 192 (7th Cir. 1988).
To challenge the procedures used in determining his fitness, a defendant must present facts "sufficient to positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to [his] mental capacity to meaningfully participate and cooperate with counsel during his trial." Balfour v. Haws, 892 F.2d 556, 561 (7th Cir. 1989). In undertaking this inquiry, a court may take into consideration evidence from both expert witnesses and lay witnesses. The trial judge in this case, at the fourth competency hearing, credited the testimony of the non-expert witnesses and his own observations. There was no error in his having done so, because non-experts who have had an opportunity to observe a person may give their opinions of mental condition or capacity based on facts observed, including conversations with that person. Such lay opinions may overcome a contrary expert opinion. See United States v. Bennett, 908 F.2d 189, 195 (7th Cir. 1990); United States v. Kennedy, 578 F.2d 196, 198 (7th Cir.), cert. denied, 439 U.S. 1049 (1978). The record of the fourth competency hearing supports the trial court's finding that the lay testimony of the state's witnesses was more persuasive than the expert testimony of the psychiatrists who had observed Wallace under more limited circumstances and within a more limited time frame. Moreover, there had been some medical opinion in the prior competency hearings that Wallace was feigning his psychosis.
The trial court's own observations of Wallace during the fourth competency hearing, as well as during prior hearings, also support the judge's finding that Wallace was competent to stand trial. In the court's finding of fact following the fourth competency hearing, the trial judge noted that:
The Defendant's demeanor changed from a demeanor generally consistent with defendants accused of major crimes in that he appeared attentive but sullen when he first came into Court in 1980. This demeanor changed about the time Exhibit 15 was written at which time he developed the facial and body twitching. At a lengthy hearing during which he twitched constantly, the Defendant, at a Court break, stood by the Jury box railing, smoked a cigarette and talked with his lawyer, all without twitching. After returning from Wishard Memorial Hospital, the Defendant appeared hardly able to keep from falling asleep. At that time, he was under a heavy dosage of Thorazine. During the final two weeks of hearing, the Defendant maintained a demeanor of sullen disinterest and engaged in an almost hypnotic rocking in his chair which was broken at the end of the hearing when Vanderburgh County deputy prosecutor Robert Pigman was writing the Defendant's coded message in Exhibit 13 and decoding it on the blackboard behind Wallace.
Record at 404.
The trial court had the responsibility to weigh conflicting evidence and resolve the question of Wallace's competence to stand trial. There was no deficiency in the procedures used for this, nor in the standard which the court employed. The record fairly supports the trial court's competency determination at the fourth hearing, and hence Wallace is not entitled to relief on this portion of his first claim.
Wallace additionally contends that Indiana's competency statute violates due process and is unconstitutionally vague because it fails to specify the standard of proof and who must shoulder the burden of persuasion. Wallace attempted to raise a parallel issue in his direct appeal. The Indiana Supreme Court commented on this point that Wallace "makes no specific allegations that the competency hearings were in fact unfair or that he was misled, surprised, or suffered from any misallocation of a burden." Wallace I, 486 N.E.2d at 454. The Indiana Supreme Court proceeded, however, to discuss the Indiana statute and explained that Wallace had no burden of persuasion under it:
Indiana's statute, IND. CODE § 35-36-3-1, does not allocate the burden [of proof in a competency hearing] to the Defendant. Our statute provides that whenever the court has reasonable grounds for believing the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense, he shall immediately hold a hearing and determine whether the defendant has that ability. The statute further provides that any evidence relative to defendant's abilities along those lines may be introduced. In a situation with a similar statute, the Missouri Court of Appeals in Missouri v. Clark (1976), Mo.Ct.App., 546 S.W.2d 455, trans. denied, declared that the only burden which exists rests on the trial judge to satisfy himself that the accused is or is not competent to stand trial. With regard to our competency statute, we maintain the same reasoning. There is no burden on the defendant to prove himself incompetent.
Wallace I, 486 N.E.2d at 454. Wallace has shown no constitutional error in this analysis or in the statute itself, which has been passed on with approval by the Seventh Circuit. See Ray v. Duckworth, 881 F.2d 512, 515 (7th Cir. 1989) ("Under the portion of the Indiana Criminal Code at issue, a defendant's right not to be tried while incompetent is no less "jealously guarded" than it is in Illinois.").
2. Medication Free Trial.
Wallace contends as part of his competency challenge that his Motion to Determine the Propriety of the Defendant Receiving Medication, Record at 414-15, was erroneously denied by the trial judge.
Wallace relies on Riggins v. Nevada, 504 U.S. 127, 133 (1992), which held, in part, that a criminal defendant has a due process right not to be medicated against his will, absent a finding of overriding justification and a determination of medical appropriateness. There are problems with this effort, the first being that in Bennett v. United States, 119 F.3d 468, 470-71 (7th Cir. 1997), the Court of Appeals concluded that Riggins was not to be applied retroactively to cases on collateral review.
Nor would the decision in Riggins aid Wallace, even if that decision could be found applicable to Wallace's case. Riggins was medicated before his trial for robbery and murder after he complained of hearing voices and being unable to sleep. Riggins, 504 U.S. at 129. However, after he was found competent to stand trial, Riggins moved for the medication to be suspended during trial because the medication would affect his demeanor, and he wanted the jury to see his true mental state since he was using an insanity defense. Id. at 130. A hearing was held on the motion, and the trial court denied the request in a one page order. Id. at 131. In its order, the trial court failed to indicate in any way its rationale behind continuing the forced medication. Id. The Supreme Court held that once Riggins' motion to suspend the treatment was denied, then the administration of the drug became involuntary. Id. at 133. The burden then shifted to the State to show the necessity for the drug Mellaril and its medical appropriateness. Id. at 135. Because the State failed to make such proof and the trial court failed to make any specific findings about an overriding state interest or any consideration of less intrusive means, the United State's Supreme Court reversed Riggins' conviction and remanded for a new trial. Id. at 138.
There is no right not to be voluntarily medicated at trial. Benson v. Terhune, 157 F. Supp.2d 1093 (N.D.Ca. 2001); Commonwealth v. O'Donnell, 740 A.2d 198, 210 (Pa. 1999). In the present case, Wallace was found competent to stand trial without medication, Record at 405, and the decision to be medicated at trial was left solely and specifically to Wallace in consultation with his medical doctors. See Record at 422. In addition, although Wallace alleges in his habeas petition that he was prejudiced because the medication affected the jury's perception of him, Wallace offers no example or demonstration of the alleged prejudice, without which his argument is baseless.
The Indiana Supreme Court found that either Wallace was not medicated at trial or that he was unaffected by medication:
[Wallace] does not claim, nor does the record reveal, that he was in fact medicated at trial or that medication altered his demeanor in any manner. He shows no prejudice from the trial court's ruling. Furthermore there is no showing nor a claim by [Wallace] that any mishap occurred during trial that required the trial judge to take any action with regard to the issue raised in this motion. He merely states the trial judge erred by not making a definite ruling at the time the motion was presented.
Wallace I, 486 N.E.2d at 455. This inquiry was entirely responsive to concerns noted in Riggins itself, those being the effect of the medication on the defendant's demeanor and on his thought processes.
The Riggins court was concerned that the effects of medication on the defendant's demeanor and mental state during trial would deny him due process since it was possible that potential drug side effects would impact his outward appearance as well as the content of his testimony and his ability to communicate with counsel. 504 U.S. at 137, 112 S.Ct. 1810. The Court noted that the side effects of these drugs could prejudice the defense by impacting not only the defendant's behavior, but also his credibility and persuasiveness in front of jurors. Id. Potential side effects range from conspicuous physical symptoms such as restlessness, tremor of the limbs, diminished range of facial expression, and slowed functions such as speech to more subtle effects like sedation, drowsiness, and unresponsiveness. Id. at 143, 112 S.Ct. 1810.
Benson v. Terhune, 157 F. Supp.2d at 1100.
In sum, whatever the state of medication was that he received during his trial Wallace was not prejudiced. There was, therefore, no error in the manner in which the trial court handled this issue.
B. Evidentiary Rulings
Wallace asserts that various evidentiary rulings and statements by the trial judge denied him due process, a fair trial and a reliable sentencing. Although Wallace raised many of these same claims in his direct appeal, he did not present the federal bases for these claims to the state courts. This constitutes a procedural default. Jones v. Washington, 15 F.3d 671, 674 (7th Cir.), cert. denied, 512 U.S. 1241 (1994) (citations omitted). Accordingly, these issues have not been properly preserved for consideration here. Rigging v. McGinnis, 50 F.3d 492, 494 (7th Cir.), cert. denied sub nom., Rigging v. Washington, 515 U.S. 1163 (1995).
The claims on which Wallace has defaulted in this context include: (1) the trial court erred by admitting into evidence the testimony of Richard Milligan, who suffered from paranoid schizophrenia and a history of hallucinations; (2) the trial court erred in denying Wallace's motion for a mistrial based on Milligan's testimony that he had committed previous burglaries with Wallace; (3) the trial court erred by improperly commenting on the evidence in stating an opinion as to Wallace's guilt during its admonishment to the jury regarding Boyles' testimony; and (4) the trial court erred in granting the state's motion in limine regarding the lie detector test that Wallace offered to take.
Ordinarily, an evidentiary error does not rise to the level of a constitutional violation. As the Seventh Circuit has explained: "[b]ecause the admissibility of evidence in state court is a matter of state law, evidentiary questions are not subject to federal review under § 2254 unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right." United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 517 (7th Cir. 1982); Burrus v. Young, 808 F.2d 578, 580-81 (7th Cir. 1986). Wallace's general assertions of the abrogation of due process and fair trial are conclusory and unsubstantiated by the record and thus cannot be reviewed by this court.
The single evidentiary ruling which has been properly preserved for review in this action is that the trial court erred in denying Wallace's motions for mistrial, during both the guilt phase and the penalty phase of the trial, based on the testimony of Mark Boyles, who testified during the guilt phase that Wallace had previously spent time at the penitentiary. The trial court denied Wallace's motion, but admonished the jurors. Wallace now argues that the admonishment was insufficient to cure an error of this magnitude.
Boyles' testimony was as follows:
Q.: Okay. When you got — when the Defendant got in the car, did anyone ask him what the police were after him about?
A.: Uhh — no. Anita had an idea when we went to go pick him up. I seen his picture on the news that night and knew the police were after him, but I didn't know what for. I knew he had been in the penitentiary before and was —
Mr. Smock: Judge — I'd like to have a hearing.
Record at 5004.
To determine whether the trial was infected by the allegedly erroneous ruling so to amount to a denial of due process, the relevant and competent evidence must be evaluated and its significance balanced against the competing state interest in the procedural and evidentiary rules that precluded the evidence at trial. Cunningham v. Peters, 941 F.2d 535, 538 (7th Cir. 1991), cert. denied, 503 U.S. 940 (1992).
On direct appeal, the Supreme Court of Indiana, discussed and evaluated the evidence of record, holding that no error occurred regarding Boyles' testimony:
Mark Boyles' statement that [Wallace] had been in the penitentiary occurred after defense counsel asked this question of the witness. Also, [another witness], had testified earlier that [Wallace] wanted the photograph of himself and the drugs, money, and guns to send to his friends in prison. Moreover, Milligan had already testified about the December burglaries he and [Wallace] had committed together. Given that the jury had already heard considerable testimony, strongly implying [Wallace]'s active criminal past, it does not appear that the statements by the two witnesses could have substantially influenced the verdict. Any error committed was harmless beyond a reasonable doubt since the testimony was cumulative of a substantial amount of other evidence. There was also substantial evidence of [Wallace]'s involvement in this crime, the seriousness of which far outweighed any general references to previous burglaries or time spent in a prison institution. Chapman v. California (1967), 386 U.S. 18 , reh'g. denied.
Wallace I, 486 N.E.2d at 458. In addition to the testimony summarized by the Indiana Supreme Court, we note that the trial court issued a clear admonishment to the jury that was prompt, clear and firm, thus minimizing the possibility of error based on this testimony.
The judge admonished the jury as follows:
At the close of yesterday's testimony, the witness made a statement in response to a question-which was not a responsive answer-in which he said in effect that the-he knew that the defendant had been in the penitentiary. Mr. Smock made his motion for a mistrial; after a lengthy discussion this morning, I have decided to deny his motion for a mistrial, and I should admonish you most strongly-this is probably the most strong admonishment you'll ever receive-you must not under any conditions, at no time in this trial-either in the first phase-where you are asked to make a decision as to whether the Defendant's guilty or not guilty-and the second sentence [sic: phase] where you will take into consideration whether or not to recommend the death sentence. At either of those stages you must not consider that statement at all. Strike it from you mind and I know that that's asking an almost impossibility, but the most important thing is you may not-absolutely may not-consider the fact that this man may have been in the penitentiary at some time for whatever reason-in arriving at your decision in either phase of this trial.
Record at 5052-54.
In light of the passing incidental nature of the objectionable testimony, the timely objection of defense counsel preventing further testimony, the trial judge's curative admonition to the jury, the other testimony touching on Wallace's other criminal connections and the overwhelming evidence of Wallace's guilt of the crimes for which he was on trial, the testimony of witness Boyles was harmless in that it lacked a substantial and injurious effect or influence in determining the jury's verdict. O'Neal v. McAninch, 513 U.S. 432, 436 (1995). In these circumstances, the comment by Mark Boyles that Wallace had previously spent time in the penitentiary did not deprive Wallace of a fair trial.
C. Intoxication as a Defense to Guilt at Trial and as Mitigation of the Sentence
Wallace contends that he was wrongly foreclosed from offering evidence of his intoxication and drug abuse at the time of the killings, both as a defense to murder and as mitigation for sentencing purposes. However, the record is devoid of any indication that such a defense or presentation of this evidence was intended or attempted at trial or during the sentencing hearing. Further, Wallace did not raise this issue on direct appeal or in his first action for post-conviction relief. It is thus without factual basis in the record and has not been sufficiently preserved for consideration in this case.
Wallace maintains that he was a long-term drug abuser and had consumed large quantities of intoxicants on a near-continuous basis during the two months prior to the murders, and, in particular, in the days before and the day of the killings. In this habeas petition, Wallace argues that counsel who represented him at trial and on direct appeal, as well as counsel who represented him in his first post-conviction action were ineffective for not raising this defense. Although the deficient performance of counsel can satisfy the "cause" element of the cause and prejudice test, Murray v. Carrier, 477 U.S. 478, 488 (1986), this is available only if that ineffectiveness itself constitutes an independent constitutional claim, id. at 488-499, and only if the ineffective assistance claim has been presented to the state courts in the manner required by state procedural rules. Lostutter v. Peters, 50 F.3d 392, 395 (7th Cir. 1995), cert. denied, 516 U.S. 843 (1995). Wallace's arguments do not measure up under these standards, because (1) at no point in his first post-conviction action did he contend that his counsel at trial and on direct appeal was ineffective for failing to raise Wallace's intoxication and drug abuse at the time of the killings, and (2) as explained in Wallace III, Wallace's claim that he was under the influence of alcohol and drugs at the time of the crime "is to no avail where it is shown that he had considerable ability to act and react during the commission of the crime." 640 N.E.2d at 377. On the first point, therefore, Wallace failed to follow the procedural rules, and on the second point he suffered no prejudice from the assertedly deficient performance of his attorneys.
D. Prosecutorial Misconduct
Wallace asserts that the prosecutor engaged in misconduct that deprived him of his right to a fair trial in violation of his federal constitutional rights. Wallace asserts that the prosecutor used false, misleading and inaccurate evidence, testimony and argument, and permitted and created false impressions as to the evidence.
Throughout Wallace's argument on this issue, he alleges prosecutorial misconduct without citing specific examples in the trial court record. Because this court's review is limited to claims which have been properly preserved, Wallace's general claim of prosecutorial misconduct is understood as referring to the comparable claim he pressed in the state court briefs. His claims which are subject to default include: (1) the prosecutor made comments during voir dire and closing argument during the guilt phase which misled the jury as to the role of mitigating and aggravating circumstances; (2) the prosecutor made remarks during closing argument which were calculated to incite jurors to include prejudicial and improper considerations in reaching their verdict; (3) the prosecutor's misconduct created a spillover effect from the guilt phase to the penalty phase; (4) the prosecutor urged the jury to return a verdict in favor of the death penalty based on the prosecutor's personal opinion that capital punishment serves as a deterrent; and (5) the prosecutor asked the jury to "send a message."
When assessing whether a prosecutor's statement deprived a defendant of a fair trial, we examine five factors: (1) the nature and seriousness of the prosecutorial misconduct; (2) whether the prosecutor's statement was invited by the conduct of defense counsel; (3) whether the trial court's instructions to the jury were adequate; (4) whether the defense was able to counter the improper arguments through rebuttal; and (5) the weight of the evidence against the defendant. Aliwoli v. Cater, 225 F.3d 826, 829-30 (7th Cir. 1997) (citing United States v. Butler, 71 F.3d 243, 254 (1995)).
Nevertheless, a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial.
United States v. Young, 470 U.S. 1, 11 (1985).
Wallace claimed in his first post-conviction petition and brief that the prosecutor's remarks regarding Wallace's future dangerousness during the closing argument in the penalty phase of trial warranted reversal of the jury's verdict. Although it is now established that, under the Due Process Clause if the defendant's future dangerousness is placed at issue, and the jury is not informed of the defendant's ineligibility for parole, the Due Process Clause is violated, Simmons v. South Carolina, 512 U.S. 154, 156 (1994) (plurality opinion); Spreitzer v. Peters, 114 F.3d 1435, 1440 (7th Cir. 1997), cert. denied, 522 U.S. 1120 (1998), the holding of Simmons does not apply retroactively in habeas corpus proceedings, and thus does not apply to Wallace's petition. Id. at 1442; Stewart v. Lane, 60 F.3d 296, 299-302 (7th Cir. 1994).
In Graham v. Collins, 506 U.S. 461, 467 (1993), the Supreme Court noted that "[b]ecause the leading purpose of federal habeas review is to ensur[e] that state courts conduct criminal proceedings in accordance with the Constitution as interpreted at the time of th[ose] proceedings, [t]he `new rule' principle . . . validates reasonable, good-faith interpretations of existing precedents made by state courts." Id. (citing Butler v. McKellar, 494 U.S. 407, 414 (1990)). At the time of Wallace's trial in 1982, Gardner v. Florida, 430 U.S. 349 (1977), held that "the petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." Id. at 362. Wallace does not complain that he had no opportunity to deny or explain the information allegedly disclosed by the prosecutor during his closing argument, or even that the information regarding his future dangerousness was unsupported by trial testimony. See also Stewart, 60 F.3d at 302 (trial court's failure to specifically note that the alternative to the death penalty was imprisonment for natural life was not error in 1981) (citing California v. Ramos, 463 U.S. 992 (1983)). Because at the time of Wallace's trial the prosecutor's comment during his closing argument did not violate Wallace's due process right to a fair trial, no actionable misconduct was committed.
Further, as the Indiana Supreme Court noted, Wallace failed to object to the prosecutor's remark at trial to avoid waiver in the state court, see Wallace II, 553 N.E.2d at 472, nor has he offered cause or prejudice to avoid procedural default here.
In evaluating a claim of prosecutorial misconduct as a violation of the petitioner's due process right to a fair trial, the inquiry centers on whether the prosecutor's conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). "The well-settled standard of review [is] that we are to consider the prosecutor's conduct not in isolation, but in the context of the trial as a whole, to determine if such conduct was so inflammatory and prejudicial to the defendant . . . as to deprive him of a fair trial.'" United States v. Chaimson, 760 F.2d 798, 809 (7th Cir. 1985) (quoting United States v. Zylstra, 713 F.2d 1332, 1339 (7th Cir.), cert. denied, 464 U.S. 965, 344 (1983)). In making this "fundamental fairness" determination, we must "consider the pertinent surrounding circumstances at trial," Mahorney v. Wallman, 917 F.2d 469, 473 (10th Cir. 1990), including the strength of the state's case relating to the petitioner's guilt, Coleman v. Brown, 802 F.2d 1227, 1237 (10th Cir. 1986), cert. denied, 482 U.S. 909, and the prejudice, if any, attributable to the prosecutor's comments, Mahorney, 917 F.2d at 472-73. If, however, the impropriety complained of "`effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair.'" Yarrington v. Davies, 992 F.2d 1077, 1079 (10th Cir. 1993) (quoting Mahorney, 917 F.2d at 472).
Wallace raises the claim of mutually supporting aggravating circumstances as prosecutorial misconduct, just as he did in his first post-conviction action. He asserts that the prosecutor made four separate requests for death sentences on each of the four murder counts. For each request, the prosecutor allegedly used the multiple-murder aggravating circumstance three times, in additional to the felony-murder aggravator of an intentional killing in the course of a burglary. As a result, there were four aggravating circumstances alleged in support of each death-sentence request of which three of the four were duplicitous of each other, and were duplicitous of the aggravating circumstances in each of the other requests. Further, he argues, the duplicitous enhancements artificially inflated the number of aggravating circumstances to be considered by the jury.
Notwithstanding the predicament in which the charging regimen placed Wallace, the prosecutor followed the statutory guidelines in requesting the death penalty for each of the murders Wallace committed. Wallace murdered four people, not one, and four requests for the death penalty offended neither Indiana law nor violated his federal constitutional rights. For each death penalty request, the State listed two aggravators, one of which was the killings of the other three family members, and the other was the felony-murder aggravation. This also complied with the relevant Indiana statute, see IND. CODE § 35-50-2-9, and did not offend Wallace's federal constitutional rights. Wallace fails to demonstrate that the prosecutor's conduct in requesting the death penalty for each of the murders Wallace committed, and following the Indiana statutory provisions for doing so, was "so inflammatory and prejudicial to [him] . . . as to deprive him of a fair trial." Caisson, 760 F.2d at 809. There is no indication that the jury was led to believe that Wallace killed more than four persons, or that Wallace killed the four persons at any other time but during the burglary of the victims' home. Wallace has demonstrated no misconduct by the prosecutor in his death penalty requests.
Wallace next contends that the prosecutor's comments during voir dire diminished the jury's sense of responsibility of its penalty recommendation. To the extent that this claim implicates Caldwell v. Mississippi, 472 U.S. 320 (1985), it is discussed separately in this Entry. Because this review shows no Caldwell violation, there can also be no finding of prosecutorial misconduct for the prosecutor's comments which prompted the claim.
In his first post-conviction brief, Wallace contended that the jury's sense of responsibility was diminished during the prosecutor's final argument at the penalty phase when he stated:
And yesterday [defense counsel] said-he asked you about your being responsible for [Wallace's] death and I — I answered that a bit yesterday and I'll say it again that you're not the one responsible-you didn't pull the trigger.
Record at 6076. Wallace offered no argument in his P-CR brief as to why this statement diminished the jury's function in the sentencing process, and we discern none. It appears that the prosecutor was arguing, in response to statements made by defense counsel, that Wallace was the person who is ultimately responsible for the consequence of his own acts, even including the penal consequences. No misconduct attaches to this statement.
Wallace raises alleged improper comments during closing argument at the guilt phase, initially referring to facts propounded by the prosecutor which were not in evidence.
In Wallace I, Wallace cites the prosecutor's statement that Wallace threw the murder weapon into the Ohio River. The relevant excerpt from the closing argument is as follows:
You ask yourself-now, where's the gun? . . . You heard from several people that [Wallace] always carried a gun. . . . Debbie Durham says that it was a different gun he had on that day when he came back-than when he left. She also says [Wallace] told me that the gun took a dive-the gun took a dive. Less than three miles from the K-Mark parking lot on South Lane Drive-down Highway Forty-One-is the bridge across the Ohio River. On that parking lot we find Patrick Gilligan's keys, Patrick Gilligan's library card-the gun is in the Ohio River, ladies and gentlemen. That's why it couldn't be produced.
Record at 5897-98. The prosecutor's statement is an argument for his interpretation of the evidence presented by the State, and not an implausible inference or conclusion based on that evidence.
Wallace further contends that the prosecutor attributed statements to Wallace, particularly questions asked of Debbie Durham, about some visitors to her house when Wallace returned to her house after the murders. Although there was no evidence of the exact questions Wallace asked, the record shows that Wallace did inquire as to the identity of the visitors, see Record at 4647, 4655, and the prosecutor's remarks appear merely to be a permissible inference as to the reason for the question. See Record at 5890.
Wallace also contends that there was no evidence to support the prosecutor's statement that Wallace killed the Gilligans to keep them from identifying him, and rolled them over to make sure they were dead. See Record at 5906-6. Not so. Debbie Durham testified that Wallace told her that he killed the adult Gilligans because they could identify him. Record at 5272. There was also testimony from police witnesses that the adults were found lying face up, that Theresa Gilligan had been lying face down in a pool of blood at some point, and that Patrick Gilligan had been lying on one side with the blood running out of the wound on his head. The prosecutor's statement highlighted together this evidence, nothing more.
Wallace argues that the prosecutor personally vouched for the credibility of witnesses. We conclude that the record does not support this characterization. The prosecutor's argument was simply that the jury should find the testimony of certain witnesses to be credible. See Record at 5910-11, 5913-14. ("Improper vouching occurs when a prosecutor expresses her personal opinion about the truthfulness of a witness or when she implies that facts not before the jury lend a witness credibility." See United States v. Cornet, 232 F.3d 570, 575 (7th Cir. 2000) (citing United States v. Randori, 106 F.3d 765, 767 (7th Cir. 1997)).
Wallace argues that the prosecutor made unfair comments about defense counsel during closing argument in the guilt phase of trial. A reading of the prosecutor's closing argument does not reveal any blatantly unfair comments.
Wallace also asserts that the prosecutor committed various instances of misconduct during the closing argument at the penalty phase. First, he argues that the prosecutor misled jurors as to the range of penalties should the jury not recommend the death penalty, and created the false impression that Wallace would be given a fifteen year sentence if he were not sentenced to death. However, the record of the actual argument reveals otherwise, thus failing to lend any support to Wallace's argument. In his closing argument, the prosecutor stated:
I would like to give you this to think on. The criminal penalties on murder are thirty to sixty years for each count. Now, with good time, a person can cut that in half, which means fifteen to thirty years. They can be run either consecutively or concurrently — which basically means the sentence in this case — if its not death — will be somewhere between fifteen and a hundred twenty years. Now — I feel it's certain but I haven't discussed it with Judge McQuillan — but I would be shocked if Judge McQuillan — if he doesn't sentence Wallace to death, gives him as little as fifteen — but it would be within the law. Or it could be thirty, and if you want to worry about being responsible for somebody's death, how would you like to be responsible for Donald Wallace being freed in fifteen or thirty years? It's a possibility.
Record at 6077. No misconduct is apparent from these comments. In making a determination of prosecutorial misconduct, "it is not enough that the prosecutors' remarks were undesirable or even universally condemned. . . . The relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citations omitted). There is no apparent unfairness in these statements by the prosecutor.
Wallace argues that the prosecutor misquoted Supreme Court decisions and quoted them out of context. In his first P-CR brief, Wallace argued:
The stage was relinquished to [the prosecutor] who misstated the law and suggested to the jury that the United States Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972), had approved and encouraged capital punishment to prevent "anarchy, . . . self-help, . . . vigilante justice and lynch talk . . ."
Wallace II, P-CR Brief at p. 132. Wallace then continued to quote a portion of the prosecutor's closing remarks. Although it is accurate that the prosecutor quoted a United States Supreme Court case, he introduced his excerpt with the following:
Also, [defense counsel] may say something about retribution-that we shouldn't have retributive justice. And I want to read to you from the case of Herman v. Georgia [sic: Furman v. Georgia, 408 U.S. 238 (1972)]-which was one of the leading death penalty cases in the mid-seventies. Judge Tulley said this about retribution and the death penalty. On that score, I would say only that I cannot agree that retribution is a constitutional and (inaudible) ingredient in the imposition of punishment . . . .
Record at 6073-74. These remarks served to introduce the case law presented, set it in context and draw the jury's attention to the fact that the remarks were about retribution. The record does not indicate that the prosecutor was attempting to show that the Supreme Court "believes that capital punishment is essential in an ordered society" or that he was "misrepresent[ing] the status of capital punishment law to the jury." P-CR Brief at 133.
Wallace contends that the prosecutor appealed to jurors' sense of civic duty to make the finding necessary to recommend the death penalty. However, the prosecutor's argument was made in the context of a discussion of what the jury had to find in order to recommend the death penalty, and that the death penalty was the only appropriate one. These remarks do not appear to have jeopardized the fairness of the trial. As the Tenth Circuit commented, "[w]hile `improper appeals to societal alarm' and requests for `vengeance for the community to set an example' are unwarranted, they are also not the type of comments that the Supreme Court has suggested might amount to a due process violation." Brecheen v. Reynolds, 41 F.3d 1343, 1356 (10th Cir. 1994), cert. denied, 515 U.S. 1135; see Darden, 477 U.S. at 181-82. In the present case, the prosecutor's comments were far from being the vengeful appeals referenced by the Tenth Circuit in Brecheen.
Wallace also argues that the prosecutor offered a personal opinion, without evidentiary support, that the killings were motivated by the desire to eliminate witnesses; however, again, Wallace omits the fact that Debbie Durham testified that he had killed the adult Gilligans because they could identify him. See Record at 5272.
Wallace contends that the prosecutor invited the jurors to rely on his expertise as to the appropriateness of a death sentence. In his first P-CR brief, Wallace couched this argument somewhat differently, asserting that the prosecutor personally vouched that "he thought death was the appropriate punishment for Wallace." P-CR Brief at 134. The words of the argument demonstrate otherwise:
You all said in voir dire that you thought the death penalty was appropriate in some circumstances, and when you look at the facts of this case-or I look at the facts in this case-I ask myself-if this isn't an appropriate case for the death penalty, what is? Ask yourself this question: What right does Donald Wallace have to suffer a lesser penalty than what he inflicted on the four Gilligans?
Record at 6078-79. This is nothing more than vigorous argument. No misconduct is apparent here.
Finally, Wallace contends that the prosecutor disparaged mercy as a mitigating factor. However, neither in the portion of the final argument quoted in the P-CR brief nor in any other portion of the prosecutor's final argument was the concept of mercy even mentioned. Further, although the jury may extend mercy in coming to its decision to impose the death penalty and certainly the defendant may argue for such qualities to be brought into the jury room, Wallace does not point to any precedent stating or suggesting that the prosecutor has any duty to include such a reference in his argument prior to the jury's deliberation. See also California v. Brown, 479 U.S. 538, 541 (1987) (instruction during penalty phase of capital murder trial, that jurors must not be swayed by "mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling," did not violate defendant's due process rights, though defendant alleged that reasonable juror could interpret instruction to prevent him from considering any "sympathy factor" raised by evidence).
In summary, we hold that Wallace has cited no instances in which the prosecutor's conduct or comments denied him a fair trial.
E. Jury Instructions
Wallace next contends that the trial court's jury instructions in both the guilt and penalty phases violated his constitutionally guaranteed due process rights. As was true with regard to the alleged error based on prosecutor misconduct, some of the many arguments Wallace presents have not been properly preserved.
The defaulted claims include: (1) the final jury charge in the guilt phase of the trial regarding the predicate felony of burglary for the felony murder charge against Wallace failed to inform the jurors of all of the essential elements of burglary; (2) the trial court did not instruct the jury during the guilt phase of the trial that they were required to find that all of the essential elements of burglary were proved beyond a reasonable doubt; (3) the trial court erred in giving an instruction which referenced Wallace's decision not to testify as a "failure" to testify; (4) the jury was not instructed as to each of the essential elements of burglary at either phase of the trial; (5) the penalty phase jury charge was not sufficiently comprehensible for an average juror to understand his/her sentencing responsibility; (6) the jury was instructed during the penalty phase that they were the judges of the law as well as the facts, thus vesting in the jury unguided discretion in deciding whether to impose the death sentence; (7) the jury charge during the penalty phase failed to accurately inform the jury of the consequences of not imposing a death sentence; (8) the jurors were misled by the penalty phase instructions which caused them to believe that each mitigating circumstance should be separately weighed against the sum of the aggravating circumstances; and (9) the jurors were misled by the penalty phase instructions that they "may consider any other circumstances appropriate for consideration," which caused them to believe they could consider non-statutory aggravating circumstances.
Instructional error will not support a petition for federal habeas relief unless it is shown "not merely that the instruction is undesirable, erroneous, or even `universally condemned,'" but that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). In undertaking this inquiry, "[a] single instruction to the jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Id. "In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would — with a commonsense understanding of the instructions in light of all that has taken place at the trial." Johnson v. Texas, 509 U.S. 350, 368 (1993) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).
An error in instructions on a matter of state law does not ordinarily raise a constitutional issue. Estelle, 502 U.S. at 72; Eaglin v. Welborn, 57 F.3d 496, 501 (7th Cir.) (en banc), cert. denied, 516 U.S. 965 (1995). A claim cognizable under § 2254(a) can emerge, however, when the effect of the challenged instruction is to withdraw from the jury an issue on which the Constitution requires proof, such as guilt — or in a death case, whether there is at least one aggravating circumstance, for without it a death sentence is unconstitutional. Tuilaepa v. California, 512 U.S. 967, 972 (1994).
Wallace contends that the Penalty-Phase Final Instruction No. 3, and IND. CODE § 35-50-2-9, taken together, had the effect of precluding consideration of mitigating evidence when the jury was instructed that it "may" consider mitigating circumstances, when by law such consideration is constitutionally required. Wallace also claims that the court erred in not instructing the jury that mitigating circumstances do not need to be proved beyond a reasonable doubt.
As noted above, jury instructions are not to be judged in artificial isolation, but must be viewed in the context of the overall charge. Tuilaepa, 512 U.S. at 972. In its review of the instructions given in this case, the Indiana Supreme Court held:
Wallace claims the trial court erred in giving Final Instruction No. 3 that enumerated the aggravating circumstances provided for in IND. CODE § 35- 50-2-9(e)(2) for which the death penalty may be imposed. Wallace complains this instruction did not inform the jury that it may recommend the death penalty only if it finds that mitigating circumstances which may exist are outweighed by the aggravating circumstance or circumstances. There is no merit to this contention. The first paragraph of Instruction No. 3 explained to the jury that this instruction concerns aggravating circumstances. Each instruction does not have to contain all the law within its four corners. Instruction No. 1 instructed the jury that they may recommend the death penalty if they find proof beyond a reasonable doubt of at least one of the aggravating circumstances and that any mitigating circumstance or circumstances that exist are outweighed by the aggravating circumstance or circumstances. Defendant's tendered Instruction No. 2 stated that the State of Indiana had the burden "to prove beyond a reasonable doubt both the question of whether the alleged aggravating circumstances exist and on the question of whether the alleged aggravating circumstances outweighed any mitigating circumstances." Defendant's tendered Instruction No. 7 further explained the jury's duty to consider mitigating circumstances and stated: "If that Juror finds that any aggravating circumstances alleged do not outweigh this particular mitigating circumstance beyond a reasonable doubt, then that Juror must vote against the recommendation of death."
Wallace II, 553 N.E.2d at 470. The instructions as summarized by the Indiana Supreme Court do not, when read as a whole, preclude the jury's consideration of mitigating circumstances, and this argument thus does not provide a basis for habeas relief here.
Wallace next contends that penalty phase Instruction No. 3 created a presumption favoring death by charging that "the law provides for the penalty of death upon conviction for the crime of murder . . . [when] the Defendant committed the murders by intentionally killing the victims while committing burglary . . . ." This is similar to the claim raised by Wallace in Wallace II. As explained by the Indiana Supreme Court in Wallace II, as quoted above, and considering the standard in this court, we are persuaded that the jury instructions, read as a whole, created no presumption favoring the death penalty. Further, as pointed out by the State, in addition to the instructions noted by the Indiana Supreme Court, the jury was also instructed that it was each individual juror's duty to determine whether aggravating circumstances outweighed mitigating circumstances. See Defendant's Instruction No. 6, Record at 574.
Finally, Wallace contends that the trial court erred by not instructing the jury of the "life option," that is, of not recommending the death penalty even if aggravating circumstances outweighed mitigating circumstances. Wallace made a similar claim in Wallace II, contending that the failure to instruct the jury of its right to extend mercy unconstitutionally restricted the jury's sentencing power. However, Wallace never tendered such an instruction to the trial court, nor did the trial court refuse to give such a tendered instruction; thus, Wallace's contention is that the trial court has an affirmative duty to instruct the jury sua sponte regarding its right to extend mercy to a capital defendant. Wallace offers no citation to federal or state precedent to support this claim.
The Indiana death penalty statute requires the jury to find the State proved the existence of at least one aggravating circumstance beyond a reasonable doubt and to weigh the proven aggravating circumstance against any mitigating circumstances which exist. See IND. CODE § 35-50-2-9. The statute has been found to adequately protect a capital defendant's constitutional right to be sentenced in a manner which is not arbitrary, freakish, or capricious. Canaan v. State, 541 N.E.2d 894, 911(Ind. 1989), cert. denied, 498 U.S. 882 (1990); Resnover v. State, 460 N.E.2d 922, 928 (Ind.), cert. denied, 469 U.S. 873 (1984).
Discussing an issue similar to that now before this court, it was noted in Evans v. Thigpen, 631 F. Supp. 274, 287 n. 7 (S.D.Miss. 1986), affd. 809 F.2d 239 (5th Cir. 1987), cert. denied, 483 U.S. 1033 (1987), that "the states have substantial latitude in determining what factors are relevant to a death penalty determination," and that it was not aware of any constitutional requirement which would go beyond the principle that instructions must be clear on mitigating circumstances and the available options. The court also stated that it was unaware of any requirement that the jury be specifically charged that it could recommend "mercy," even if it found that the aggravating circumstances outweighed the mitigating circumstances." Id., at 287; see also Edwards v. Thigpen, 595 F. Supp. 1271, 1286 (S.D.Miss. 1984), affd. 849 F.2d 204 (5th Cir. 1988), cert. denied, 489 U.S. 1059 (1989).
The Seventh Circuit in Kubat v. Thieret, 867 F.2d 351 (7th Cir.), cert. denied, 493 U.S. 874 (1989), observed that:
mitigating factors are not necessarily limited to those adduced from specific evidence offered at the sentencing hearing (such as character testimony). A juror might be disposed to grant mercy based on other factors, such as a humane perception of the defendant developed during trial. This is not to say that a juror may base a sentencing decision on "mere sympathy" rather than record evidence. See California v. Brown, 479 U.S. 538, 542-43 (1987) (emphasis in original). But each juror must be permitted to consider, as a mitigating factor, "any aspect of a defendant's character and record and any of the circumstances of the offense." Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)).
Kubat, 867 F.2d at 373 n. 19. A careful examination of the jury instructions at the penalty phase in the present action reveals that each juror was permitted to consider mitigating factors, which included Wallace's character, the record and the circumstances of the offense, and also those factors outside the record, including mercy.
At Wallace's trial, the jury was instructed that they could recommend the death penalty only if the state proved at least one of the aggravating circumstances; and that mitigating circumstances were outweighed by the aggravating circumstances. Record at 564. The jury was told that it might consider any other circumstances appropriate for consideration, Record at 566, and was counseled that each juror had a duty to act upon his own individual judgment and determine for himself whether the aggravating circumstances were proved and whether those circumstances outweighed the mitigating circumstances. The jury was instructed that they could consider any circumstances they felt appropriate to find mitigating circumstances, that this was an individual matter and that jurors were not obliged to consider a circumstance as a mitigating fact simply because another juror found the circumstance mitigating. Record at 575. Finally, the jury was told that if any one of them found that the aggravating circumstances failed to outweigh the mitigating circumstances, that juror must vote against the recommendation of death. Id.
Because the jury instructions allowed the jury to consider mitigating circumstances outside of those allowed by statute, including mercy or a "life option," and because no further instruction is mandated by the Constitution on this subject, Wallace cannot be deemed to have been deprived of his right to due process and a fair trial. See Bivins v. State, 642 N.E.2d 928 (Ind. 1995) (defendant in death penalty proceeding was not entitled to jury instruction that the law does not prohibit jury from granting defendant mercy on grounds of pity, mere sentiment, or sympathy; by not giving such instruction, trial court was not precluding jury from considering potentially mitigating evidence, it merely declined to invite jury to consider that type of evidence as mitigating), cert. denied, 516 U.S. 1077 (1996); Woods v. State, 547 N.E.2d 772, 785 (Ind. 1989) (defendant's tendered instruction on the use of sentiment and sympathy in the penalty phase of a capital case, which stated that a decision to grant a defendant mercy does not violate the law and the law does not forbid jurors from being influenced by pity for the defendant, was properly refused in that the instruction was contrary to statute which requires the recommendation of death be based upon the relative weight of aggravating and mitigating circumstances), cert. denied, 501 U.S. 1259 (1991). F. Jury's Role at Penalty Phase Wallace asserts that the jury suffered from a diminished sense of responsibility with respect to its sentencing decision based on statements made by the prosecutor and the trial court judge during voir dire and the closing argument of the penalty phase, and due to incomplete and inaccurate jury instructions.
The Indiana Supreme Court reviewed this issue in Wallace I only as it related to the conduct of the trial court judge and the prosecutor during voir dire and the closing argument of the penalty phase. In the current petition, Wallace seeks to expand the scope of this claim to include more conduct by the trial court judge and the prosecutor, as well as jury instructions. To the extent that he seeks such expansion, the claims subject to procedural default and Wallace cannot now raise those claims for the first time in federal court as part of his habeas petition.
The claims which have been defaulted include: (1) the jurors were given incorrect information as to possible alternative sentences; (2) the jurors were misled as to the number of aggravating circumstances to be weighed against mitigating circumstances; (3) the jurors were led to believe that their penalty phase decision was merely a matter of mathematically comparing the number of aggravating circumstances with the number of mitigating circumstances; (4) the jury instructions erroneously precluded jurors from considering non-statutory mitigating circumstances and permitted them to consider non-statutory aggravating circumstances; and (5) during closing argument, the prosecutor argued that the guilt-phase verdicts eliminated all questions as to culpability, that judges found capital punishment to be essential to an ordered society, that the jury was not responsible for what happened to the defendant, and that the jurors should send a message to others.
In Caldwell v. Mississippi, 472 U.S. 320 (1985), the Supreme Court vacated a defendant's death sentence when it found that the jury responsible for imposing the sentence was misled into believing that the responsibility for determining the appropriateness of the death sentence rested with the appellate court which later reviews cases, and not with the jury. Id. at 323. A Caldwell violation occurs where the jury is affirmatively misled regarding its role in the sentencing process so as to diminish its sense of responsibility. Romano v. Oklahoma, 512 U.S. 1, 8-9 (1994).
Regarding the claims which are appropriately before this court, Wallace contends that IND. CODE § 35-50-2-9 on its face, and without more, creates the false impression that jurors are making a mere recommendation that does not carry weight in terms of the trial court's sentencing decision. Further, the term "recommend" in the statute is not defined, and the common English usage is to counsel or advise.
At the time of Wallace's trial, the pertinent statute, IND. CODE § 35-50-2-9, provided as follows:
(e) Except as provided by IC 35-36-9, if the hearing is by jury, the jury shall recommend to the court whether the death penalty or life imprisonment without parole, or neither, should be imposed. The jury may recommend: (1) the death penalty; or (2) life imprisonment without parole; only if it makes the findings described in subsection (k). The court shall make the final determination of the sentence, after considering the jury's recommendation, and the sentence shall be based on the same standards that the jury was required to consider. The court is not bound by the jury's recommendation. In making the final determination of the sentence after receiving the jury's recommendation, the court may receive evidence of the crime's impact on members of the victim's family.
To the extent that Wallace challenges the constitutionality of the Indiana's death penalty statutory scheme, the Seventh Circuit has resolved the issue in Schiro v. Clark, 963 F.2d 962 (7th Cir. 1992), commenting specifically on the provision which Wallace now questions. See id. at 969 ("Regardless of its rationale, a state may constitutionally establish pure judicial sentencing in capital cases or it may permit judicial sentencing upon a non-binding, advisory recommendation from a jury, as Indiana has chosen to do."). Wallace offered no reason to depart from this determination or reach a contrary conclusion. See also Games v. State, 535 N.E.2d 530, 536 (Ind.), cert. denied, 493 U.S. 874 (1989) (the death penalty under IND. CODE § 35-50-2-9 was not unconstitutional under Indiana's Constitution because it permitted the sentencing judge to impose death penalty despite contrary jury recommendation).
Indiana's statute was amended, effective July 1, 2002. The current statute provides that (i) the court shall instruct the jury that, in order for the jury to recommend to the court that the death penalty or life imprisonment without parole should be imposed, the jury must find at least one (1) aggravating circumstances beyond a reasonable doubt as described in subsection (k) and shall provide a special verdict form for each aggravating circumstance alleged, and (ii) if the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly. IND. CODE § 35-50-2-9.
Wallace contends that the jurors were erroneously counseled, during jury selection and during closing arguments at the penalty phase of the trial, that sentencing decisions were recommendations which the trial court judge was not bound to consider, and which would be reviewed automatically by the Indiana Supreme Court. That is an accurate description of Indiana's statutory scheme at the time of the guilt phase of Wallace's trial, and neither the trial court nor the prosecutor violated any constitutional right by informing the jury of the applicable law. See IND. CODE § 35-50-2-9(e) (j).
Finally, Wallace complains that during voir dire, the trial judge commenced the proceedings by reading the Indiana death-penalty statute, IND. CODE § 35-50-2-9, in its entirety, including the provision for automatic review by the Supreme Court. By the time twelve jurors were selected, the members of the jury heard the judge read the statute seven times. Once again, the fact that the jury was informed of the state law, albeit in a repetitious manner, does not violate the Constitution. The Indiana Supreme Court properly reached that same conclusion, and in doing so commented that "[i]t was proper for the court to read to the jury the statute outlining their duties. He did not emphasize any particular provision of the statute. We can assign no error to a trial court for advising a jury of the law." Wallace II at 468.
G. Consideration of Sentencing Factors
Wallace contends his death sentence is unconstitutional because it is based on invalid aggravating circumstances and a failure to properly consider all relevant mitigating evidence, and because Wallace was denied a fair sentencing determination. Some specific claims in this area have not been properly preserved for review here, and hence will not be considered.
The claims under this issue which have been waived through Wallace's procedural default are the following: (1) Wallace was deprived of his due process rights because he had no notice that non-statutory aggravating circumstances might be considered; (2) the trial court failed to give effect to the undisputed and relevant mitigating evidence at sentencing; (3) Wallace was denied a jury trial on aggravating circumstances, even though they constitute factual issues indistinguishable from those on which jury trials are provided in non-capital cases; (4) because only one set of verdict forms was submitted to the jury in the penalty phase, the jury did not make a separate determination as to Wallace's responsibility for each killing; and (5) the statutory mitigating circumstance that the defendant had no significant history of prior criminal conduct.
Concerning the claims that are properly before this court, the United States Supreme Court has not mandated any particular statutory approach to capital punishment. Hampton v. Page, 103 F.3d 1338, 1343 (7th Cir. 1997) (citing Spaziano v. Florida, 468 U.S. 447 (1984)). Statutory aggravating circumstances are a constitutionally necessary part of the determination as to who is eligible for the death penalty. Id. After that determination of eligibility is accomplished, in selecting who, from among those eligible, will actually be put to death, "[w]hat is important . . . is an individualized determination on the basis of the character of the individual and the circumstances of the crime." Zant v. Stephens, 462 U.S. 862, 878 (1983).
Indiana's list of aggravating and mitigating factors provides fixed, objective and uniform discretionary constraints to guide death penalty sentencing decisions. Schiro v. Clark, 963 F.2d 962, 969 (7th Cir. 1992), aff'd., 510 U.S. 1215 (1994). Although Indiana vests sentencing authority in a judge rather than a jury, the judge's discretion is limited by the same factors which limit the jury's sentencing discretion. Before the death penalty can be imposed at least one of nine aggravating circumstances must be established beyond a reasonable doubt. IND. CODE § 35-50-2-9 (1979). In addition, the trial judge must find that any aggravating factors outweigh any mitigating factors. Id. Not only has Indiana enumerated clear, objective and specific standards for imposing the death penalty, it has also required the sentencing judge to enter written findings with respect to those factors in order to facilitate appellate review. IND. CODE § 35-4.1-4-3. In light of these safeguards, the Indiana death penalty statute generally does not lead to arbitrary or discriminatory results, nor did it in Wallace's case in particular.
Wallace asserts that the trial court erroneously based its sentencing decision on non-statutory aggravating circumstances. IND. CODE § 35-50-2-9 states, in relevant part:
(a) The state may seek either a death sentence or a sentence of life imprisonment without parole for murder by alleging, on a page separate from the rest of the charging instrument, the existence of at least one (1) of the aggravating circumstances listed in subsection (b). In the sentencing hearing after a person is convicted of murder, the state must prove beyond a reasonable doubt the existence of at least one (1) of the aggravating circumstances alleged . . . .
(b) The aggravating circumstances are as follows:
(1) The defendant committed the murder by intentionally killing the victim while committing or attempting to commit any of the following: . . . (B) Burglary (I.C. 35-43-2-1) . . . .
(8) The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder . . . .
(k) Before a sentence may be imposed under this section, the jury, in a proceeding under subsection (e), or the court, in a proceeding under subsection (g), must find that: (1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and (2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.
In the Specific Findings of Fact contained within the Written Findings of Fact on The Imposition of the Death Penalty ("Written Findings"), Judge McQuillan of the Vigo Circuit Court, found that:
8. The Court finds that the State has proved beyond a reasonable doubt that two aggravating circumstances exist that warrant the imposition of the death penalty:
A. That the Defendant, Donald Ray Wallace, Jr., murdered Patrick Gilligan, Theresa Gilligan, Lisa Gilligan and Gregory Gilligan while committing the crime of Burglary on the 14th of January, 1980, in Vanderburgh County, State of Indiana. (I.C. 35-50-2-9(b)(1)).
B. That the Defendant, Donald Ray Wallace, Jr., murdered Patrick Gilligan, and then murdered Theresa Gilligan, Lisa Gilligan and Gregory Gilligan; that the Defendant, Donald Ray Wallace. Jr., murdered, in order, after the murder of Patrick Gilligan, Theresa Gilligan, Lisa Gilligan and Gregory Gilligan. (I.C. 35-50-2-9(b)(8)).
. . . .
10. That the aggravating circumstances set forth in paragraph eight above outweigh any mitigating circumstances offered under I.C. 35-50-2-9(c)(7).
Record at 692-95.
Although the judge went on to recite other aggravating factors which evidentially reinforced his decision, he specifically and correctly recited the statutory requirements for his finding and specified the permissible statutory aggravating factors which he found to have been proved beyond a reasonable doubt. In addition, the court specifically found that the aggravating circumstances which he listed outweighed mitigating circumstances presented, leaving no doubt that he did not include factors, other than the two he specifically named in the relevant paragraph in determining that the aggravating circumstances outweighed the mitigating circumstances. Thus, there are no grounds upon which Wallace can argue that the trial court erroneously based the sentence on non- statutory aggravating circumstances. See also Wallace II, 553 N.E.2d at 471 ("After finding the statutory grounds for aggravating circumstances had been proved beyond a reasonable doubt and outweighed any mitigating circumstances, it was proper for the court to give these other findings to justify his finding that the death penalty was appropriate for this defendant considering his commission of these crimes.").
Wallace insists that the trial court relied on his prior felony convictions to sentence him to death; and that two of those convictions have been reversed since his sentencing. Wallace goes on to say that in a "weighing" state, such as Indiana, an appellate court may not constitutionally affirm a death sentence merely on the basis of valid aggravating circumstances when one or more invalid circumstances were used. However, as is clear from the excerpt of the Written Findings, the judge's decision was based on two aggravating circumstances sanctioned by the statute, neither one of which was invalid, and did not include any of Wallace's previous convictions.
Thus, the present case can be easily distinguished from the case relied on by Wallace, Johnson v. Mississippi, 486 U.S. 578 (1988), in which a vacated conviction was the sole evidence supporting the statutory aggravating circumstance that the murder was committed by a person previously convicted of a felony involving the use or threat of violence against another person.
Further, Wallace fails to recognize that the only federal constitutional requirement here is that matters considered by the sentencing court must be relevant to the character and record of the offender and the circumstances of the offense. Zant, 462 U.S. at 879. The primary concern in the Eighth Amendment context is that the sentencing decision be based on the facts and circumstances of the defendant, his background, and his crime. Mlemons v. Mississippi, 494 U.S. 738, 748 (1980), see, e.g., Spaziano v. Florida, 468 U.S. at 460; Zant, 462 U.S. at 879; Eddings v. Oklahoma, 455 U.S. 104, 110-112 (1982); Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion); Gregg v. Georgia, 428 U.S. 153, 197 (1976). The Written Findings of the trial court judge completely satisfy this standard.
Wallace next asserts that the trial court failed to specifically find that he committed murder by "intentionally" killing as required by IND. CODE § 35-50-2-9(b)(1), instead finding that he "murdered" the victims, which term encompasses both a knowing and an intentional killing.
In paragraph 2A of the Written Findings, the court stated that the aggravating circumstances alleged included that "the Defendant committed the murder of each victim by intentionally killing the victims while committing or attempting to commit Burglary." In paragraph 8A, the trial court found that the State had proved two aggravating circumstances, including that Wallace had murdered the victims while committing the crime of burglary. While a more exact tracking of the statutory language of IND. CODE § 35-50-2- 9(b)(1) in paragraph 8A may have been preferable, there is no doubt that the trial court's reference to "murder" in paragraph 8A is a finding that the murder described in paragraph 2A, that is, "murder of each victim by intentionally killing the victims," was proved beyond a reasonable doubt. This finding is reinforced by the fact that the trial court referenced the specific statutory subpart at the conclusion of each finding.
Wallace further contends that the offense in the present case involved a single, continuous course of conduct, resulting in four deaths arising out of the same underlying burglary; however, the State sought four separate death sentences, alleging the three other deaths as aggravating circumstances in each request. Wallace argues, without citation to federal or state law, that it was improper to use the same aggravating circumstances multiple times to support multiple requests for separate death sentences. In Wallace I, Wallace presented a similar claim under the issue of prosecutorial misconduct. In that argument, using Georgia and California case law, Wallace contended that the jury was given the impression that there were sixteen aggravating circumstances instead of only one multiple murder circumstance. In Georgia, this is called the doctrine of mutually-supporting aggravating circumstances and the use of such aggravators is precluded by statute, that is, the use of one murder to support the death penalty for a second murder and the use of the second murder to support the death penalty for the first murder is precluded by statute. Jenkins v. State, 498 S.E.2d 502, 514 (Ga. 1998); Wilson v. State, 300 S.E.2d 640, 648 (1983). The use of multiple murders as an aggravating circumstance in a capital case is, however, a matter of state law, see Bonin v. Calderon, 59 F.3d 815, 848-59 (9th Cir. 1994), and courts outside of Georgia and the Ninth Circuit have merely noted in passing whether state law allows for a multiple murder aggravator without commenting on the constitutionality of the state law. See Godfrey v. Georgia, 446 U.S. 420, 433 n. 15 (1980) (In a review of aggravating circumstances, the Court noted that "Georgia does not, as do some States, make multiple murders an aggravating circumstance, as such."); Kokoraleis v. Gilmore, 131 F.3d 692, 695 (7th Cir. 1997) (court discussed Illinois law which allows a multiple-murder aggravating circumstance in capital cases for defendants who have been convicted of murdering two or more persons); Grisby v. Blodgett, 130 F.3d 365, 371 (9th Cir. 1997) (court mentions without disapproval Washington state law allowing jury to find an aggravating circumstance in a capital case when there was more than one victim and the murders were the result of a single act of the defendant); and see also, State v. Moore, 585 A.2d 864, 889-891 (N.J. 1991) (Analysis of reasoning behind use of the multiple murder aggravator: "In contrast, we believe that the legislative factor here bespeaks a qualitative judgment that is consistent with logic and with human intuition or experience. Killing Melva is worse because Kory was killed at the same time; and killing Kory is worse when you kill his mother at the same time. There is no double-counting. Each murder is in reality worse.")
Interestingly, in Wilson, the court set aside the mutually supporting aggravating circumstances, but did not require the reversal of either death sentence, because the court noted that there remained at least one statutory aggravating circumstance to support each sentence of death. Wilson, 300 S.E.2d at 648.
Further, there is nothing in the state court record or developed through the parties' arguments showing that the jury was confused in any way by the charging documents. Indeed, in People v. Allen, 729 P.2d 115 (Cal. 1986), cited by Wallace in his brief in Wallace II, the fact that the prosecutor spoke of "eleven" special circumstances in a multiple murder case did not require reversal or re-sentencing where the jury was aware that there were only three murders, that there was only one prior killing, although it was alleged as a special circumstance with respect to all three murders, and that the first of the three killings, which alleged a witness-killing as a special circumstance in two ways, was not an additional killing and constituted only one special circumstance. The same can be said of the present situation.
Wallace alleges that the use of mutually supporting aggravating circumstances to support separate death sentences constitutes double jeopardy; however, no multiple punishment for the same offense is possible in this case. The death sentence can only be administered once, thus, the imposition of four death sentences, if that is what Wallace is alleging, can only indicate that the death penalty is appropriate for each killing. See also, Kokoraleis, 131 F.3d at 695 ("[T]he double jeopardy clause does not prevent a state from selecting a penalty independently for each crime a person commits. This is clear enough for a serial bank robber, whose penalty for the first offense does not set a cap on total punishment for extra robberies; it is no less true for a serial killer. Each additional crime creates a fresh exposure to punishment, which may be cumulative — indeed, must be cumulative if there is to be deterrence for extra offenses.").
Wallace argues that the penalty phase failed to perform the constitutionally required function of narrowing the class of persons eligible for death. See Zant, 462 U.S. at 878. However, in this case, two aggravating circumstances were charged, and found by the trial court to exist beyond a reasonable doubt, thus narrowing the field of capital murders from the field of all murders. There was no constitutional insufficiency in this process.
H. Ineffective Assistance of Counsel
Wallace asserts that he was denied effective assistance of counsel at all prior proceedings. Some of the claims Wallace raises under this issue were never raised in his state court proceedings, and thus are procedurally defaulted.
These claims include that trial and appellate counsel was ineffective because he failed to: (1) make a continuing objection to Judge McQuillan presiding at the competency hearings and at the trial; (2) call Judge McQuillan as a witness at the fourth competency hearing; (3) adequately prepare for trial because the trial began two months after the last competency hearing and counsel lacked sufficient preparation time; (4) obtain information during voir dire in order to rationally exercise the peremptory challenges; (5) question during voir dire any misapprehensions held by the jury regarding the sentence of a defendant not sentenced to death in a capital case; (6) provide adequate background to mental health professionals in order to ensure that Wallace was accorded a competent mental health evaluation; (7) investigate Wallace's background relevant to his ability to premeditate, an element of the crimes he was charged with, and the mental state relevant to aggravating circumstances; (8) make an opening statement and in making an inadequate and ineffective closing statement at the penalty phase; (9) secure the assistance of experts, including a toxicologist, a pharmacologist, a neuropsychologist and a family dysfunction expert; (10) secure the assistance of experts to testify that a drug abuser's high tolerance for drugs will cause them not to appear intoxicated, that once a person is addicted to drugs, it ceases to be a voluntary act, that stress is a precipitator of psychosis in people vulnerable to it, and regarding the rebound effects on a person's psychology and behavior when he stops taking drugs, the toxic effect of drugs on the brain, and the fact that a borderline personality disorder combined with drug use can result in lack of volition; (11) properly review the pre-sentence investigation report with Wallace, and object at the sentencing hearing to the inaccurate information that Wallace had been placed in numerous foster homes during his childhood; (12) object to the inclusion in the pre-sentence report of selected experts from Wallace's mental health records which portrayed Wallace as a dangerous sociopath; and (13) provide Wallace with effective assistance with regard to the Indiana Supreme court's proportionality review and independent review of his death sentence.
The Sixth Amendment right to counsel exists "in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684 (1984).
To support an ineffective assistance of counsel claim under Strickland, Wallace must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defense. The first prong is satisfied by a showing that counsel's performance fell below the "objective standard of reasonableness" guaranteed under the Sixth Amendment. Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting Strickland, 466 U.S. at 688). In evaluating whether counsel's performance was deficient, "the court must defer to counsel's tactical decisions," avoid "the distorting effects of hindsight" and give counsel the benefit of a strong presumption of reasonableness. Id. at 689; Holman v. Gilmore, 126 F.3d 876, 881-82 (7th Cir. 1997). The prejudice prong of Strickland requires petitioner to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome," Strickland, 466 U.S. at 679. Applied to the particular context presented here, the prejudice prong of Strickland requires petitioner to show "that a reasonable probability exists that, but for counsel's substandard performance, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Ashford v. Gilmore, 167 F.3d 1130, 1135 (7th Cir. 1999); Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997).
Wallace asserts that trial counsel failed to adequately prepare for all phases of the trial because he did not understand the scope of mitigating circumstances in a capital murder trial. Wallace focuses on his trial counsel's preparation for the penalty phase, specifically counsel's investigation of Wallace's social, medical and institutional history. See Petitioner's Brief at 116-18. He asserts that:
[t]here could be no competent strategic reason for not presenting available and admissible mitigating information. A competent, strategic decision can only be made after an adequate investigation in order to determine what mitigating information is available.
Id. at 117 (emphasis in original).
The Constitution requires that the trial counsel in capital cases conduct a reasonable investigation into potential mitigating factors. Mahaffey v. Page, 151 F.3d 671, 686 (7th Cir. 1998), vacated in part on reh'g 162 F.3d 481 (1999); see, e.g., Strickland, 466 U.S. at 691. A "reasonable investigation" does not mandate a "scorch-the-earth strategy." Hall, 106 F.3d at 749. Rather, the contours of a reasonable investigation are dictated by the circumstances of each case, including the facts of the crime, conversations with the defendant and others familiar with him, and other readily available sources of information, such as trial testimony. Mahaffey v. Page, 151 F.3d at 686; Hall, 106 F.3d at 749-50; Stewart, 74 F.3d at 135. While this evidence will in some cases indicate that further investigation would be beneficial, "[i]n other cases, where these indications are lacking, counsel may `reasonably surmise from his conversations with [the defendant] that character and psychological evidence would be of little help.'" Id. (quoting Strickland, 466 U.S. at 698). In this context, the Seventh Circuit noted that "[i]t is reasonable for a lawyer to place a certain reliance on his client, so that if the client and his family and friends throw the lawyer off the scent, . . . the lawyer cannot be faulted for failing to go down the path thus closed off." Thomas v. Gilmore, 144 F.3d 513, 515 (7th Cir. 1998), cert. denied, 525 U.S. 1123 (1999).
During the hearing in Wallace's first post-conviction action, the deposition of Wallace's trial counsel was admitted as evidence. According to that testimony, trial counsel asserted that he investigated and prepared for every portion of Wallace's trial. He prepared for the penalty and sentencing phases of the trial by talking to numerous witnesses, including many of Wallace's family members. Although counsel testified that he thought he was able to submit almost any mitigating evidence during the penalty phase of the trial, he worried that the witnesses who could testify to Wallace's past, character or family would not be able to withstand cross-examination without losing ground for the defense. Trial counsel further testified that Wallace was not cooperative in the gathering of this information and did not want certain family members to testify at his trial. The only family member whom counsel asked to testify at the sentencing hearing was Wallace's uncle, because "I think he comes across as objective and would have not made any absurd statements . . ." Wallace II, Petitioner's Exhibit E, Deposition of William G. Smock, at p. 75.
A further indication of defense counsel's investigation is found in Wallace's own testimony at his first post-conviction hearing, during which Wallace himself strenuously objected to the proposed testimony of eight witnesses who were scheduled to present evidence of mitigating circumstances to support the ineffective assistance of trial counsel. Wallace engaged in the following conversation with the presiding judge:
Wallace: Yes Judge. My attorney proposed to call a line of witnesses right now that include members of my family. uh — and they would purportedly testify to mitigating circumstances uh — surrounding my life. Uh — first I would withdraw my objection and motion to strike uh — Mr. Balske's testimony.
Judge: Okay.
Wallace: And I would say that he just established uh — by reviewing the transcript what the mitigating circumstances in this case were that I uh — maybe an unhappy childhood uh — psychiatric problems, it's all a matter of record, it's all contained in the transcript. I don't think these witnesses can add anything of probative value uh — to the fact that my counsel was ineffective uh — by not developing their testimony at that time. Furthermore, uh — I would be willing to on [sic:take] the stand on [sic:in] an offer to prove that he did in fact approach me and try to develop all these sources that they are prepared to present and uh — which at that time I forbid him to do that. He repeatedly asked me to do that, I repeatedly forbidden it. Finally he acceded to my wishes. Uh — if my attorneys persist uh — against my wishes uh — then I would say we have an irretrievable breakdown in the attorney/client relationship. I do not trust them uh — I do not feel they are working in concert with me, I don't feel like they are working in my best interest, I repudiate their counsel, I reject their counsel, uh, — I feel that they have no respect whatsoever for my wishes, uh — and I would ask that these witnesses would not be allowed to testify — I would ask that I be allowed to make the strategic decision here that they not be allowed to testify. I also submit that one of these witnesses uh — who I've had experience of seeing testified before, uh — may be a bad risk uh — strategically as far as uh — blurting things, or uh — being non-responsive to questions and that is all I'd say for right now Judge, unless I have something —
* * *
Judge: Alright, now uh — would you identify the witnesses which you wish to call and your client does not wish to call.
Hills (P-CR attorney): The witnesses who we have uh — who he does not want to be called are Donald Ray Wallace, Sr., Sharon Wallace, Shannon Wallace, Gene Wallace and Otto Holder. They are relatives of Mr. Wallace.
Judge: And are those the witnesses you do not wish to be called, Mr. Wallace?
Wallace: Yes Judge, and I would mention that one of those did testify — in fact, at the sentencing hearing. Gene Wallace, so I do [not] see what proof of — of uh — as to what their argument is that could supply by presenting him as a witness.
Judge: Alright, thank you.
Hills: In response to that, uh — his Uncle Gene testified at the sentencing phase and not at the penalty phase in front of the jury. There is a distinction with that.
Wallace: Okay, also Judge, I would like to take the stand on an offer to prove that Mr. Smock, in fact, did uh — several times try to develop these same uh — witnesses and uh — I forbid him to do this on many occasions. He practically begged me to let him put on this evidence and it was me — and it was I, alone, who prevented that from happening and therefor, in light of that, if you parade a hundred witnesses in here to say all kinds of great, wonderful mitigating things, the fact remains that I was the cause of it and it would not go — it would have no probative value to Mr. Smock's ineffectiveness uh — I didn't want them to testify then, I don't want them to testify now, and if — if you parade them all in here, it's just to conduct another sentencing hearing which this is not, this is not a sentencing hearing. It is not a penalty phase of the trial.
P-CR Record at 812-21.
The testimony of Wallace and that of his trial counsel at the post-conviction hearing demonstrate that trial counsel investigated Wallace's background sufficiently to propose a penalty phase strategy including potential mitigating evidence regarding Wallace's background and family life which he expected to reflect favorably on his client. Faced with Wallace's adamant refusal to allow the mitigating testimony at the penalty phase hearing, however, trial counsel made the strategic choice to focus on policy considerations against the imposition of the death penalty rather than call attention to Wallace's character. This was not deficient performance in any sense. See Burger v. Kemp, 483 U.S. 776, 784 (1987) (counsel made a reasonable decision to forego presentation of mitigating evidence — after evaluating available testimony and determining that cross-examination would reveal matters prejudicial to the defendant — and to instead make a lesser culpability argument to the jury). In light of Wallace's post-conviction testimony, the evidence submitted at the guilt phase of trial, and the "highly deferential" standard for assessing assistance of counsel claims, Strickland, 466 U.S. at 689, it cannot be concluded that Wallace has met the first prong of Strickland in arguing that his trial counsel acted outside the realm of objectively reasonable professional conduct. See Stewart v. Gramley, 74 F.3d 132, 136 (7th Cir.) (jurors may not be impressed with the idea that to know the cause of viciousness is to excuse it; they may conclude instead that, when violent behavior appears to be outside the defendant's power of control, capital punishment is appropriate to incapacitate), cert. denied, 519 U.S. 1022 (1996).
The performance of counsel is assessed by what was known at the time or would have been discovered through diligent pursuit of lines of inquiry reasonable at the time. Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1991). In the present case, Wallace's attorney's hands were tied by Wallace himself, who expressly forbade his attorney from presenting mitigating evidence at the guilt phase. The strategy presented was not due to counsel's lack of investigation or reasoning, or negligent preparation, but to Wallace himself. Wallace's decision regarding the limitation of evidence at the penalty phase was not and is not in doubt. His decision was not fleeting or equivocal. The validity of that decision has not been called into question, nor do there appear to be circumstances which would support such a challenge.
Wallace contends that trial counsel failed to preserve certain issues relative to his claim under Caldwell and his present arguments that the trial was infected with prosecutor misconduct and that the jury instructions were not complete and accurate. Those claims have been considered previously and rejected, and would not support the prejudice prong of a Strickland analysis for the reasons explained in Parts III.F. and G. of this Entry.
Wallace argues that trial counsel failed to investigate evidence of Wallace's intoxication and drug use around and at the time of the offense. As explained in Wallace III, however, even at that late date there was no factual basis of any significance to such an inquiry. 640 N.E.2d at 377 (Wallace's "claim that he was under the influence of alcohol and drugs at the time of the crime is to no avail where it is shown that he had considerable ability to act and react during the commission of the crime").
In addition, Wallace contends that trial counsel was ineffective for failing to present evidence in mitigation that Wallace agreed to take a polygraph test. This claim is clearly a non-starter. In Indiana, polygraph results, or the fact of a polygraph having taken place, are not admissible, absent prior stipulation by the parties. See Brown v. State, 587 N.E.2d 111, 112 (Ind. 1992) ("This Court often has repeated that evidence of a polygraph examination is not admissible in evidence unless both sides to the litigation agree in advance of the giving of such examination that it may be used in evidence by either party." (citations omitted)). Wallace has made no attempt to show that the State would have agreed to stipulate to such an examination.
Wallace contends that at the sentencing hearing, trial counsel failed to object to the court's reliance on non-statutory aggravating circumstances in making its sentencing decision. However, as discussed in Part III.G. of this Entry, factors considered by the trial court in its sentencing procedure fully complied with the relevant statutes. Thus, counsel's failure to object to the use of proper statutory factors could not be considered ineffective.
Wallace also contends that trial counsel was ineffective in failing to challenge the constitutional validity of prior convictions and have them vacated before trial. Although this claim is arguably procedurally defaulted because it was not raised as a claim under the issue of ineffective assistance of counsel in state court, substantively this claim cannot succeed because, as discussed in Part III.G. of this Entry, the trial court's sentencing decision was based on two aggravating circumstances sanctioned by statute, and did not depend upon any of Wallace's previous convictions. Thus, it is unlikely that Wallace's sentence would have been different had his criminal history been shortened by two convictions. Wallace has also not shown any prejudice as required under Strickland, due to the inclusion of these two convictions in his criminal history. Nor has Wallace submitted any authority to support his contention that trial counsel was ineffective for failing to investigate a case not immediately before him.
Finally, Wallace complains that his attorney in the post-conviction action failed to: (1) conduct adequate research to understand the foundational requirement for testimony of various witnesses; (2) adequately research and develop a coherent penalty phase theory; and (3) raise and preserve errors during the proceedings on the post-conviction petition and appeal. Wallace also complains that his post-conviction attorneys antagonized Wallace by their ineptness, acts, and omissions, such that there was a breakdown of the attorney-client relationship. The premise of this specification of attorney ineffectiveness is that there existed a right to the effective assistance of counsel at the post-conviction stage. That premise is incorrect, for there is no such right under the Constitution. Morrison v. Duckworth, 898 F.2d 1298, 1301 (7th Cir. 1990) (citing Pennsylvania v. Finley, 481 U.S. 551, 555(1987)); Coleman, 501 U.S. at 757 ("Because [the petitioner] had no right to counsel to pursue his appeal in state habeas, any attorney error that led to the default of [his] claims in state court cannot constitute cause to excuse the default in federal habeas.").
No other claim of ineffective assistance of counsel has been properly preserved for consideration in this forum.
It is undisputed that the Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel at trial. As the Supreme Court has observed:
The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted-even if defense counsel has made demonstrable errors-the kind of testing envisioned by the Sixth Amendment has occurred.
United States v. Cronic, 466 U.S. 648, 656 (1984). In United States v. Balzano, 916 F.2d 1273 (7th Cir. 1990), the Seventh Circuit Court of Appeals characterized the burden of demonstrating ineffective assistance of counsel as a "high mountain a defendant must climb." Wallace's attack on the performance of his attorneys falls far short of the necessary showing. Indeed, we find no such deficiencies in the attorneys' performance.
I. Constitutionality of Death Penalty
Wallace contends that the death penalty is unconstitutional in general, and in his case, it constitutes a denial of due process and equal protection, the infliction of cruel and unusual punishment and a violation of the ex post facto clause of the constitution. Apart from the challenge concerning lethal injection as a mode of execution, this issue was raised sufficiently in Wallace's direct appeal to allow it to be properly before this court.
Initially, Wallace argues that the death penalty as imposed in the United States, in Indiana and in this case is unfair, unreliable, without procedural safeguards, and is imposed with arbitrariness, discrimination and capriciousness. The death penalty is, according to Wallace, an unnecessary infliction of torture and pain, serves no deterrent or penal purpose, is an inducement to violence, and can result in psychological trauma and infliction of emotional stress on jurors and judges.
To the extent that Wallace argues that the imposition of the death penalty offends the Eighth Amendment, this argument has been rejected by the United States Supreme Court. A sentence of death is not a per se constitutional violation. Gregg v. Georgia, 428 U.S. 153, 180 (1976). "In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs." Id. at 183; see also Harrison v. State, 644 N.E.2d 1243, 1258 (Ind. 1995) ("We reaffirm that the Indiana death penalty statute is constitutional."), cert. denied, 519 U.S. 933 (1996). Likewise, to the extent that Wallace argues that the death penalty as imposed in Indiana is unconstitutional because it is imposed in an arbitrary and discriminatory manner, and results in the unnecessary infliction of pain and torture, this issue has also been resolved against him. See Schiro, 963 F.2d at 969 ("As a result of [procedural] safeguards, the Indiana death penalty statute will not lead to arbitrary or discriminatory results generally or in Schiro's case.").
At the time Wallace was sentenced, Indiana law provided for capital punishment to be carried out by means of electrocution. Wallace asserts that electrocution as a means of carrying out a capital sentence violates the Eighth Amendment because the state cannot professionally carry out the execution of a person without unnecessarily inflicting torture and pain upon the offender. He argues that electrocution presents the hazard of a slow and painful death. This type of claim has been uniformly rejected by both federal and state courts. Black v. Bell, 181 F. Supp.2d 832, 881 (M.D.Tenn. 2001). In any event, in the circumstances which are now in existence, Wallace's challenge to electrocution as the manner in which he will be executed is moot in that electrocution is no longer utilized.
In 1995, the Indiana General Assembly amended the death penalty statute to provide that the punishment of death be inflicted by intravenous lethal injection. See IND. CODE § 35-38-6-1 (1995). As Wallace correctly notes, no specific effective date was provided in the amended statute; however, IND. CODE § 1-1-3-3(b) provides that "each provision of each act passed at a regular session of the general assembly takes effect on July 1 next following its enactment, unless a different time is specified in the act." Thus, the amended IND. CODE § 35-38-6-1 became effective as of July 1, 1995, and as of that date Wallace was no longer subject to death by electrocution. See Miller v. Bryant, 644 N.E.2d 188, 191 (Ind.Ct.App. 1994); Saylor v. State, 686 N.E.2d 80, 82 n. 1 (Ind. 1997) (although appellant raised issues regarding electrocution, the Indiana Supreme Court found them to be moot because in 1995, the legislature replaced electrocution with death by lethal injection), cert. denied, 525 U.S. 831 (1998).
IND. CODE § 35-38-6-1(1995) provides:
(a) The punishment of death shall be inflicted by intravenous injection of a lethal substance or substances into the convicted person:
(1) in a quantity sufficient to cause the death of the convicted person; and
(2) until the convicted person is dead.
(b) The death penalty shall be inflicted before the hour of sunrise on a date fixed by the sentencing court. However, the execution must not occur until at least one hundred (100) days after the conviction.
(c) The warden of the state prison, or persons designated by the warden, shall serve as the executioner.
(d) The department of correction may adopt rules under I.C. 4-22-2 necessary to implement subsection (a).
Although Wallace argues that the 1995 amendment is not retroactive on its face, and that he did not know whether the State would apply it retroactively, Wallace completely ignores IND. CODE § 1-1-3-3(b) and, considering the language of that statute, Wallace's total failure to support his argument leaves him without a viable claim.
Wallace next contends that by subjecting him to lethal injection, the State has violated his rights under the Ex Post Facto clause. The argument is also well-worn and fruitless. Wallace was sentenced to death under the previous statute, and that sentence remains in place after the 1995 amendment changed the manner in which the sentence was to be carried out. The change in method does not make the sentence more burdensome and so does not violate the Ex Post Facto clause. Collins v. Youngblood, 497 U.S. 37, 52 (1990); Poland v. Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997), cert. denied, 523 U.S. 1082 (1998).
Wallace argues that the 1995 amendment to IND. CODE § 35-38-6-1, substituting lethal injection for electrocution, violates his Eighth Amendment rights because there are no guidelines and precautions to safeguard against improper administration. Wallace states that he did not raise this issue in state court because the 1995 amendment became effective on July 1, 1995, after Wallace had completed his collateral review in state court. Although it is not clear that Wallace could not have returned to state court to present this issue there, thereby making him subject to procedural default in this venue, he also fails to cite any authority or develop any argument in support of the claim presented in his petition for a writ of habeas corpus. In his petition, this claim consists of nothing other than unsupported assertions which have no merit and thus cannot support relief. To the extent that Wallace challenges the constitutionality of the use of lethal injection as a method of execution, the court has already noted in the course of this case that "a challenge to lethal injection is without basis in this action." See paragraph 3.a. of the Entry of January 16, 2002. Very little needs to be added here on this point. To prevail on a claim that lethal injection violates the Eighth Amendment and amounts to cruel and unusual punishment, Wallace must demonstrate that it is "either incompatible with the evolving standards of decency that mark the progress of a maturing society" or that it involves the "unnecessary and wanton infliction of pain." See Gray v. Lucas, 710 F.2d 1048, 1058 (5th Cir.), cert. denied, 463 U.S. 1237 (1983) (holding that death by lethal gas does not amount to cruel and unusual punishment). Wallace offers nothing to support the contention that lethal injections are far more likely to cause prolonged agony for death row inmates than other modern methods of execution. The Fifth Circuit has previously held similar arguments to be insufficient to raise a substantial constitutional question as to whether death by lethal injection amounts to cruel and unusual punishment. See Woolls v. McCotter, 798 F.2d 695, 698 (5th Cir. 1986), cert. denied, 478 U.S. 1031 (1986). The same conclusion is applicable here.
Wallace filed his petition for a writ of habeas corpus without memorandum on September 6, 1995. On April 26, 1997, in an Entry Discussing Selected Matters, Wallace was directed to file a memorandum setting forth the basis upon which he believed he was entitled to relief based upon his challenge to the method of execution. On April 28, 1997, counsel for the petitioner, C. Kenneth Wilber, responded to the court's direction by seeking an unspecified continuance to file the responses directed by the court. On September 10, 1998, the court directed that any party who had reason to believe that this action was not fully ready for disposition was to alert the court to this view within ten calendar days. Neither party responded. Wallace's current counsel, Sarah Nagy, thereafter sought to expand the issues in this case by asserting a claim that execution by lethal injection entitled him to relief.
J. Full, Fair and Reliable Determination in all Prior Proceedings and Cumulative Error
As a separate claim in his petition for a writ of habeas corpus, Wallace argues that there were errors in all prior proceedings of his criminal case, and that he was denied the effective and meaningful assistance of counsel, the right to present witnesses on his behalf, the right to confront witnesses, the right to a reliable review of his sentences and the right to a reliable sentence determination, and the right to meaningful access to the courts, all of which are violations of his constitutional rights. He also contends that he was prejudiced because material facts were not developed, issues not investigated, and fundamental trial errors have not been remedied. Most of these claims in this section are repetitious of claims raised in other portions of his petition, and have been fully discussed and resolved. These claims, in the aggregate, do not warrant a different conclusion. As explained by the Seventh Circuit in Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir. 2000), where there is "no error, or just a single error, there are no ill effects to accumulate and so a petitioner in such a case could not prevail on this theory [of cumulative error]." Beyond this, Wallace's complaints about the performance of his attorneys in the post-conviction stage do not support a claim for relief under the circumstances he has identified. Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir.), cert. denied, 519 U.S. 907 (1996); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.) (per curiam) (errors in a state post-conviction review proceeding are not addressable through federal habeas corpus), cert. denied, 493 U.S. 1012 (1989). Wallace has not demonstrated error of constitutional dimension in his habeas petition, and there is no cumulative effect from the alleged errors raised by him.
The Supreme Court's death penalty jurisprudence includes the recognition that death is different, Woodson v. North Carolina, 428 U.S. 280, 303-304, (1976), and that this difference creates a unique "need for reliability on the determination that death is the appropriate punishment in a specific case." Zant v. Stephens, 462 U.S. 862, 884-885 (1983) (quoting Woodson, 428 U.S. at 303-304). The role of federal habeas review, though limited, must be correspondingly careful, for "Congress has recognized that federal habeas corpus has a particularly important role to play in promoting fundamental fairness in the imposition of the death penalty." McFarland v. Scott, 512 U.S. 849, 859 (1994). We have conducted the thorough review required, the sure conclusion from which is that Mr. Wallace received all the benefits and protections the Constitution provides.
For a trial to be constitutionally sound requires . . . a trial where the prosecutor must prove all elements of a crime beyond a reasonable doubt in order to convict; where the prosecutor adheres to certain rules of conduct that guarantee a fair trial and a proper consideration of the defendant's theories and supporting evidence; where the jurors consider only evidence adduced by the parties and that a defendant has had an opportunity to rebut; and where a defendant enjoys the right to cross-examine adverse witnesses.
Gall v. Parker, 231 F.3d 265, 277-78 (6th Cir. 2000).
IV. CONCLUSION
Donald Ray Wallace's prosecution, trial, conviction, and sentencing have received exhaustive review, both in this action for habeas corpus relief and at all levels of the Indiana state courts. Having withstood challenge in the Indiana courts, Wallace's conviction and sentence are entitled to a presumption of constitutional regularity. See Farmer v. Litscher, 303 F.3d 840, 845 (7th Cir. 2002) (citing Parke v. Raley, 506 U.S. 20, 29-30 (1992)); Milone v. Camp, 22 F.3d 693, 698-99 (7th Cir. 1994) ("Federal courts can grant habeas relief only when there is a violation of federal statutory or constitutional law"). Wallace has not overcome the presumption in this case. "A defendant whose position depends on anything other than a straightforward application of established rules cannot obtain a writ of habeas corpus." Liegakos v. Cooke, 106 F.3d 1381, 1388 (7th Cir. 1997). No violation of such established rules entitles Wallace to relief in this case. Accordingly, his petition for a writ of habeas corpus must be denied and this cause of action dismissed with prejudice.
Obviously, this is not a presumption related to AEDPA, but is "the `presumption of regularity' that attaches to final judgments, even when the question is waiver of constitutional rights." Parke v. Raley, 506 U.S. at 29 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 468 (1938)).
The stay of execution heretofore entered is terminated. Judgment consistent with this Entry shall now issue.
JUDGMENT
The court, having this day issued its rulings in the accompanying Entry, hereby ADJUDGES and DECREES that the petitioner take nothing by his petition for a writ of habeas corpus and that this action be and the same is dismissed with prejudice. The stay of execution heretofore entered is terminated.