A TTORNEYS FOR A PPELLANT A TTORNEYS FOR A PPELLEE Joseph Cleary Steve Carter Indianapolis, Indiana Attorney General of Indiana

Brent Westerfeld Stephen R. Creason Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________

No. 49S00-0409-PD-420

B ENJAMIN R ITCHIE , Appellant (Petitioner below),

v.

S TATE O F I NDIANA , Appellee (Respondent below)

.

_________________________________

Direct Appeal from the Marion Superi or Court, Criminal Division, Room 4 No. 49G04-0010-CF-172900 The Honorable Patricia Gifford, Judge

_________________________________ November 8, 2007

Rucker, Justice.Summary

Benjamin Ritchie was convicted of murder , possession of a handgun by a serious violent felon, auto theft, and resisting law enforcement in connection with the 2000 shooting death of Beech Grove police officer William Toney. The trial court accepted the jury’s recommendation

for a sentence of death for the murder conviction and sentenced Ritchie to a total executed term of twenty years for the remaining convictions. On direct appeal, we affirmed Ritchie’s

conviction and sentence of death. Thereafter R itchie filed a petition for post-conviction relief, which the post-conviction court denied after a h earing. He now appeals that denial raising several issues for our review, some of which are waived. 1 We address the remaining issues, which we rephrase as follows: (1) whether Ritchie was denied the effective assistance of trial counsel; (2) whether Ritchie was denied the effective assistance of appellate counsel; and (3) whether he received a fair post-conviction heari ng. We affirm the post-conviction court.

Facts 2

A recitation of the essential facts in this cas e was set forth in our opinion on direct appeal

as follows:

On September 29, 2000, around 7:00 p.m , Ritchie and two others stole a white Chevrolet Astro va n from a gas station in Beech Grove. The theft was reported and police were dispatched to the scene where Beech Grove police officer Matt Hickey filed a stolen

1 Ritchie complains the mandatory procedures for cap ital sentencing and indepe ndent appellate review were violated. Br. of Appellant at 88. Under th ese general headings he alleges: (1) the trial court improperly instructed the jury that he was eligible for a sentence ranging between forty-five and seventyfive years, but the actual range was forty-five to ninety-four years; (2) the trial court erroneously gave the jury a special verdict form on the weighing elemen t; and (3) the trial court failed to issue a written sentencing order. Id. at 88-92. The purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at the time of the original trial or appeal. Reed v. State , 856 N.E.2d 1189, 1194 (Ind. 2006). These issues were known and available at the time of Ritchie’s direct appeal. An issue known but not raised on direct appeal is waived. Williams v. State , 808 N.E.2d 652, 659 (Ind. 2004).

2 “Tr.” refers to trial transcript. “P-Cr.” refers to the transcript of the post-conviction proceedings.

2vehicle report. Approximately two hours later, Hickey was en route to a traffic accident scene and recognized the stolen van as Ritchie and one of his accomplices drove by. After confirming by radio that the van bore the license plate of the stolen vehicle, Hickey pursued, joined by officers Robert Mercuri and William Toney. After a short chase, the van pulled into the yard of a residence where Ritchie and his companion jumped out and ran in opposite directions. Officer Tone y pursued Ritchie on foot, and ultimately Ritchie turned and fired four shots, one of which struck Toney in the chest. Toney died at the scene.

Ritchie v. State , 809 N.E.2d 258, 261 (Ind. 2004), cert. denied , 546 U.S. 828 (2005).

Procedural History

The State charged Ritchie with murder, unl awful possession of a firearm by a serious violent felon as a Class B felony, auto theft as a Class D felony, two c ounts of resisting law enforcement as Class D felonies, and carryi ng a handgun without a license, a Class C felony. 3 Tr. at 7. The State sought the death penalty based on two aggravating circumstances: (1) the

victim of the murder was a law enforcement offi cer acting in the course of duty, Ind. Code § 35- 50-2-9(b)(6)(A), and (2) at the time the murd er was committed Ritchie was on probation after receiving a sentence for the commission of a felony. I.C. § 35-50-2-9(b)(9)(C).

Trial was held from July 31 through August 20, 2002. Prior to voir dire, Ritchie pleaded guilty to the serious violent felon in possession of a handgun charge. The jury convicted him on the remaining counts and recommended the death pe nalty for the murder conviction. The trial court accepted the jury’s recommendation and se ntenced Ritchie to death for the murder conviction. Tr. at 2909. As for the remaining counts, the trial court sentenced Ritchie as follows: (1) twenty years for the unlawful possessi on of a firearm as a serious violent felon, (2) three years for auto theft, (3) three years for resisting law enforcement, as a Class D felony, and

3 On motion by the State the trial court dismissed the carrying a handgun without a license charge. App. at 52.

3(4) one year for resisting law enfo rcement, as a Class A misdemeanor, 4 to be served concurrently. Id. at 2908-09. On direct appeal, we affirmed Ritchie’s c onvictions and death sentence. Thereafter, Ritchie filed a Petition for Post-Conviction Relief, which the post-conviction court granted in part 5 and denied in part after a hearing. This appeal followed. Additional facts are discussed below as necessary.

Standard of Review for Post-Conviction Proceedings

The petitioner in a post-conviction proceedi ng bears the burden of establishing grounds for relief by a preponderance of the evid ence. Ind. Post-Conviction Rule 1(5); Fisher v. State
, 810 N.E.2d 674, 679 (Ind. 2004). When appealing th e denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher , 810 N.E.2d at 679. To prevail from the denial of post-c onviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State , 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court’s legal conclusions, “[a] post-conviction court’s findings and judgment will be reversed only upon a showing of clear error – that which leaves us w ith a definite and firm conviction that a mistake

has been made.” Ben-Yisrayl v. State , 729 N.E.2d 102, 106 (Ind. 2000) (citation omitted).

Standard of Review for Ineffective Assistance of Counsel

Most of Ritchie’s claims fall under the genera l heading of the ineffective assistance of his trial and appellate lawyers. To establish a pos t-conviction claim alleging violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish the two

4 The record before us does not reveal at what point or how one of the resisting law enforcement convictions was reduced from a Class D felony to a Class A misdemeanor.

5 On Indiana double jeopardy grounds the post-convicti on court vacated Ritchie’s sentence for resisting law enforcement as a Class A misdemeanor. App. at 493-94.

4components set forth in Strickland v. Washington , 466 U.S. 668 (1984). Williams v. Taylor , 529 U.S. 362, 390 (2000). First, a defendant must show that counsel’s performance was deficient.

Strickland , 466 U.S. at 687. This requires a showing th at counsel’s representation fell below an objective standard of reasonableness and that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Id. Second, a defendant must show that the deficient performance prejudiced the defense. Id. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, meaning

a trial whose result is reliable. Id. To establish prejudice, a defenda nt must show that there is a reasonable probability that, but for counsel’s unpr ofessional errors, the re sult of the proceeding

would have been different. Id. at 694. A reasonable probability is one that is sufficient to

undermine confidence in the outcome. Id. Further, counsel’s performance is presumed effective, and a defendant must offer str ong and convincing evidence to overcome this presumption. Ben-Yisrayl , 729 N.E.2d at 106.

Discussion

I.
Ineffective Assistance of Counsel – Guilt Phase

Ritchie raises two allegations of ineffective assistance during the guilt phase of trial: (A) “Failure to Retain Appropriate Expert Assistan ce” and (B) “Failure to Move for Suppression of Ritchie’s Videotaped Statements.” Br. of Appellant at 66, 71.

A. Expert Assistance

The State’s expert conducted a “laser traject ory analysis” to support the State’s theory that Ritchie killed Officer Toney wh ile lying in wait. At trial, Ritchie’s defense team sought to undermine the State’s “lying in wait” theory and a dvance the defense’s theory that Ritchie acted recklessly in firing his handgun and did not know ingly or intentionally kill Officer Toney. 6 Br. of Appellant at 67. Consequently, rebutting th e State’s evidence on the operation of the handgun

6 The record reveals that at Ritchie’s request the trial court instruct ed the jury on reckless homicide and voluntary manslaughter as lesser-included offenses of murder. Tr. at 2120-21.

5Ritchie used in the shooting – a Glock Model 26 – and the trajectory of the bullets became an important component of Ritchie’s defense. Tr. at 1637-43. To assist at trial, defense counsel retained the services of Wayne Hill, who held himself out as a crime scene reconstructionist and ballistics expert. 7 Problems arose during a pre-trial deposition concerning Hill’s asserted professional qualifications and articles he allegedly published. Hill’s deposition testimony was also inconsistent with the report he had previously given to the defense. According to one of Ritchie’s trial counsel, the prosecutor “absolutely destroyed this man’s credibility as a witness and I might add fairly under the rules.” P-Cr. at 170.

One of Ritchie’s lawyers, Kevin McShane, concluded that he could not rely on Hill as a witness and that his testimony added no value to the defense. Id. at 171. Counsel did not consult

with or retain another ballistics or reconstructi on expert. Instead, the defense team decided the best strategy was to rely upon the testimony of the State’s crime scene investigator, Mickey

French. McShane knew French to be a “str aight shooter” and a “real honest expert.” Id. at 173. Counsel believed that favorable evidence to support their theory of the case could be elicited

from French on direct as well as during cross-examination. French’s testimony at trial did not exclude the defense theory of events.

Ritchie argues the failure to obtain another e xpert amounted to ineffective assistance of counsel. At the post-conviction hearing, Ritchi e presented two experts: John Nixon and James Sobek. The post-conviction court found Nixon’s a nd Sobek’s testimony differed from that of French but not significantly so. App. at 454. For example, Nixon’s testimony differed from French’s regarding the relative safety of the handgun and a person’s ability to accurately aim the gun at night. Id. Nixon offered anecdotal evidence that some Glock handguns similar to Ritchie’s have accidentally discharged but acknowledged there is no reason to believe the gun in this case accidentally discharged four times . Because he had no personal knowledge, Nixon could not say whether Ritchie could accurately aim the handgun. Id. Sobek could only testify that the laser trajectory analysis conducted by th e State’s witness could not pinpoint the precise

7 In his curriculum vitae Mr. Hill professed to be a expert in “homicide events reconstruction” with expertise in a variety of fields including: eviden ce collection, firearms, internal/external ballistics, forensic pathology, and the psychology of “high stress response.” Pet’r P-Cr. Ex. 19 at 25-39.

6trajectory that each bullet took, buthe could not come up with a more precise trajectory location himself and acknowledged the analysis by the State’s witness was largely correct. Id.

We agree with the post-conviction court’s conclusion that the decision to rely upon testimony from the State’s witness was reasona ble under the prevailing professional norms.

Rondon v. State , 711 N.E.2d 506, 520 (Ind. 1999) (“Trial counsel’s strategy to put the State to its burden and not present a defense, like other stra tegic decisions, is a legitimate trial strategy.”) (citation omitted). Additionally, Ritchie’s expert s do not challenge the accuracy of the State’s expert testimony. It is at best wholly speculative that the expert testimony Ritchie provided at post-conviction would have affected the outco me of the trial. We will not second-guess counsel’s strategic decision to put the State to its burden, especially without a showing of prejudice. Troutman v. State , 730 N.E.2d 149, 155 (Ind. 2000). In view of all these considerations, counsel’s failure to procur e another expert does not overcome the strong presumption of counsel’s competence.

B. Suppression of Ritchie’s Videotaped Statements

Following his arrest, Ritchie was held in cu stody at the Marion County jail. After being
advised of his Miranda rights, the police began to interroga te Ritchie but stopped when Ritchie told police he wanted a lawyer. P-Cr. at 639. Shortly thereafter, television station reporters contacted Marion County correctional officers and asked to interview Ritchie. According to several reporters, the officers advised them that Ritchie agreed to be interviewed. Before the interviews began Ritchie signed a form captioned as an “Interview Release” that provided in pertinent part:

I, Benjamin Ritchie, do hereby voluntarily consent to give an interview to the news media. I understand that I have the right to have counsel present during this interview. I further understand that no threats, promises or ag reements have been made by the Marion County Sheriff’s Departme nt for this interview and I further understand that the Mari on County Sheriff’s Department has no vested interest in granting said interview.

7Resp’t P-Cr. Ex. C, D, E & F. Ritchie did not request an attorney and none was provided. The interviews proceeded, and Ritchie talked to the media while shackled at the wrist and ankles and dressed in jail clothing. Marion County corr ectional officers were present throughout the interview. At trial, the State introduced three videotaped statements made during these news media interviews. Ritchie contends the videotap es were inadmissible due to a violation of his

Miranda rights and because they violated his Fourt eenth Amendment right not to be forced to appear in jail clothes or visibly shackled before the jury decided his fate. Ritchie complains counsel rendered ineffective assistance for failing to object or move to suppress these videotapes. Br. of Appellant at 76.

(1) Miranda Violation

Ritchie contends that the interviews were part of a custodial interrogation, and police could not reinitiate questioning until counsel was provided. Id. at 73. Ritchie characterizes the interviews as “actions on the part of the police” because officers asked if he was willing to be interviewed, created the opportunity for the interv iews to occur, and established the interview

conditions. Id. He contends the officers should have known the reporters’ questions were likely to elicit incriminating responses and that th ese interviews enabled law enforcement to do indirectly what Miranda prohibits, questioning him about the homicide without counsel. Id. at 73-74.

The Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during “custodial inte rrogation” without a prior warning. Illinois v. Perkins
, 496 U.S. 292, 296 (1990). Police offi cers are not required to give Miranda warnings unless the defendant is both in custody and subject to interrogation. See Loving v. State , 647 N.E.2d 1123, 1125-26 (Ind. 1995). There is no question that R itchie was “in custody” when he gave his

statements.

The post-conviction court concluded that the videotapes did not run afoul of Miranda because these statements were “not given to the po lice as part of a custodial interrogation,” rather they were voluntary statements to the me dia. App. at 451. We agree. Under Miranda
,

8“‘interrogation’ includes express questioning and words or actions on the part of the police that the police know are reasonably likely to elicit an incriminating response from the suspect.”

White v. State , 772 N.E.2d 408, 412 (Ind. 2002) (emphasis added) (citations omitted); see also

Rhode Island v. Innis , 446 U.S. 291, 301 (1980) (citation omitted). Though the officers allowed the opportunity for the interviews, the news reporters initiated and conducted the questioning, not police. Miranda warnings are required in order to ove rcome the inherently coercive and police-dominated atmosphere inherent to a custodial interrogation. Davies v. State , 730 N.E.2d 726, 733 (Ind. Ct. App. 2000). However, “[t]here is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.”

Perkins , 496 U.S. at 296-97. Thus, the essential ingr edients of a “police-dominated atmosphere” and compulsion are not present when an incarcer ated person speaks freely to someone whom he

believes is not an officer. Id. at 296.

Additionally, civilians conducting their own investigation need not give Miranda warnings. Trinkle v. State , 259 Ind. 114, 284 N.E.2d 816, 818 (1972). In Luckett v. State , 158 Ind. App. 571, 303 N.E.2d 670, 671 (1973), civilians w ho were victims of a break-in conducting their own investigation questioned Luckett, whom they suspected was the culprit. He confessed to parts of the crime and later argued these statem ents were inadmissible because of a lack of a

Miranda warning. The Court held there was no Miranda violation when “the victims of the break-in were acting on their own initiative as priv ate citizens and were not under police control, were not agents of the police, and were not acting at the direction of police officers.” Id. Ritchie, like Luckett, was in custody and questioned by private citizens acting on their own initiative. The reporters were not under police cont rol, agents of the po lice, or acting at the direction of police officers. Ritchie presents no evidence to the contrary. Therefore, a Miranda warning was not constitutionally mandated in this situation.

Even if we were to assume the reporters’ ac tions could be construed as police action, the evidence demonstrates the use of procedural safe guards effective to secure the privilege against self-incrimination. Ritchie was advised of his right to counsel in writing before the interviews. App. at 451. Despite having not initiated the interviews, Ritchie voluntarily gave these

9statements to the media. Ritchie does not c ontend he misunderstood the “Interview Release” form. Nor does he contend that the police coer ced him into signing the form. Any statement given freely and voluntarily without any compelli ng influences is, of course, admissible in

evidence. Perkins , 496 U.S. at 297. The post-conviction court correctly concluded the admission of the videotapes did not run

afoul of Miranda . In order to prevail on a claim of ine ffective assistance due to the failure to object, the defendant must show a reasonable pr obability that the objection would have been

sustained if made. Wrinkles v. State , 749 N.E.2d 1179, 1192 (Ind. 2001). Finding no Miranda violation, we cannot say there is a reasonable probability that the objection would have been

sustained if made. Nor is there a reasonable probability that a motion to suppress would have been granted on this ground. Accordingly, Ritchie has not met his burden of demonstrating that counsel’s performance on this issue fell below an objective standard of reasonableness.

(2) Appearance in Shackles

Ritchie alleges the interview tapes were inad missible because they depicted him dressed in jail clothing and shackled and that counsel re ndered ineffective assistance by not objecting or moving to suppress these videotapes. Br. of Appellant at 75-76.

It is clearly established under both state and federal law that a criminal defendant cannot be forced to appear in either jail clothing or shackles during the guilt or penalty phase of trial without an individualized finding that the defenda nt presents a risk of escape, violence, or disruption of the trial. Deck v. Missouri , 544 U.S. 622, 624 (2005); Estelle v. Williams , 425 U.S. 501, 512 (1976); Illinois v. Allen , 397 U.S. 337, 344 (1970); Stephenson v. State , 864 N.E.2d 1022, 1032 (Ind. 2007). An accused should not be compelled to go before the jury dressed in jail clothes or shackled because: (1) th e risk of diluting the presumption of innocence, (2) the risk that the jury might find guilt based on these extraneous influential factors rather than probative evidence subject to the rigors of cross-examination, and (3) the shackles could hinder the right to participate with counsel. See Deck , 544 U.S. at 630-31 (“Visible shackling undermines the presumption of innocence and the re lated fairness of the factfinding process” and “[s]hackles can interfere with the accused’s ability to communicate with his lawyer.”) (citation

10omitted); Estelle , 425 U.S. at 504 (discussing the potentia l for jail clothing to dilute the presumption of innocence and the principle that guilt is to be established by probative evidence and beyond a reasonable doubt). Applying these rati onales, Ritchie contends these videotapes were constitutionally inadmissible and prejudicial. Br. of Appellant at 76. However, Deck and its predecessors only discuss th e use of jail clothing and visible shackles during courtroom proceedings . Ritchie was not forced to appear before the jury in jail clothing and shackles. Rather his claim is one st ep removed in that the jury viewed a videotape of Ritchie appearing in jail clothing and shackle s while in police custody. The concerns with having a criminal defendant appear in jail clothi ng or shackles in a courtroom proceeding are not directly applicable to Ritchie’s situation. Certai nly, his right to participate with counsel is not implicated. Additionally, it appears to this Cour t that the risk of dilu ting the presumption of innocence or guilt being established by an extrane ous influential factor is minuscule. Ritchie presents no evidence of how viewing him in ja il clothing and shackles on the videotape had a bearing on his verdict. Any reasonable juror woul d have expected Ritchie to be dressed in jail clothing and shackled when meeting with members of the public outside the security of a jail

cell. See generally Davis v. State , 770 N.E.2d 319, 326 (Ind. 2002) (stating potential jurors would reasonably expect that anyone in police custody would be restrained).

We agree with the post-conviction court that this is not a case of the petitioner appearing before the jury wearing jail garb and shackles. App. at 452. Thus, it is clear that an objection, had one been made, would not have been sustai ned and counsel’s actions did not fall below the objective reasonable standard of care. But even assuming for the sake of argument counsel’s failure to object or move to suppress the vi deotapes fell below an objective standard of reasonableness, Ritchie still has failed to show th at, but for counsel’s error, the outcome of the

trial would have been different. That is to say, Ritchie has failed to show that, but for the videotapes, the jury would have returned a ve rdict recommending a sentence of a term of years

rather than a death sentence. See Fountain v. United States , 211 F.3d 429, 436 (7th Cir. 2000) (finding petitioner failed to establish prejudice because an objection to the shackling would not have likely altered the result); see also Davis , 770 N.E.2d at 326 (finding, ab sent actual harm as a result of the jury seeing him momentarily in handc uffs, the trial court would not have abused its

11discretion in denying a motion for mistrial made by counsel at trial). We agree counsel was not

ineffective.

II. Ineffective Assistance of Counsel – Penalty Phase

Ritchie next complains that counsel rende red ineffective assistance for failing to do a better job in presenting evidence of mitigation. Br. of Appellant at 34. More specifically, Ritchie alleges counsel failed to: (A) inves tigate and present educational evidence; (B) investigate and prepare a social history re port; and (C) obtain and present appropriate psychological experts.

This Court acknowledges the importance of pr esenting mitigating evidence, particularly in capital cases. Harrison v. State , 707 N.E.2d 767, 783 (Ind. 1999). We have previously held that the failure to investigate and present mitigating evidence could constitute ineffective assistance of counsel, warranting th e vacation of a death sentence. Id. (citing Burris v. State , 558 N.E.2d 1067, 1076 (Ind. 1990); Smith v. State , 547 N.E.2d 817, 822 (Ind. 1989)); see also

Prowell v. State , 741 N.E.2d 704, 714 (Ind. 2001). Th at is not to say that counsel is required to present all available mitigation evidence. Counsel may make strategic judgments not to present certain types of mitigating evidence. Timberlake v. State , 690 N.E.2d 243, 261 (Ind. 1997) (“As a matter of trial strategy, a defense counsel in a capital case may decide what is the best argument to present during the penalty phase.”). However, the strategic choice not to present mitigating evidence made after less than complete investigation may give rise to an ineffective assistance of counsel claim for failure to investigate. We digress to elaborate upon this duty to investigate mitigating evidence.

With the benefit of hindsight, a defendant can always point to some rock left unturned to argue counsel should have investigated furthe r. The benchmark for judging any claim of

ineffectiveness must be whether counsel’s c onduct so undermined the proper functioning of the adversarial process that it deprived the defendant of a fair trial. Strickland , 466 U.S. at 686.
Strickland does not require counsel to investigate every conceivable line of mitigating evidence

12no matter how unlikely the effort would be to assist the defendant at sentencing. Wiggins v.

Smith , 539 U.S. 510, 533 (2003). This would interf ere with the constitutionally protected independence of counsel at the heart of Strickland

. Id. Rather, we review a particular decision not to investigate by looking at whether counsel ’s action was reasonable in light of all the

circumstances. Id. at 521-22. In other words, counsel has a duty to make a reasonable investigation or to make a reasonable decision th at the particular investigation is unnecessary.

Id. at 521. A strategic choice not to present mitigating evidence made after thorough investigation of law and relevant facts is virt ually unchallengeable, but a strategic choice made after less than complete investigation is challeng eable to the extent that reasonable professional judgment did not support the limitations on the investigation. Id. Thus, the Court’s principal concern is not whether counsel should have pr esented more in mitigation but whether the investigation supporting their decision not to intr oduce mitigating evidence was itself reasonable.

Id. at 523.

A. Educational Evidence

Counsel assembled a defense team that incl uded Cheri Guevara, a mitigation specialist, Larry Atwell, an investigator and former police officer, and Dr. Michael Gelbort, a neuropsychologist. App. at 432. Counsel obtai ned school, adoption and hospital records and interviewed several family members and pe rsons familiar with Ritchie’s background and upbringing. Id. Ritchie argues counsel focused only on his early childhood years, stating “almost nothing [was] presented regarding [Ritchi e’s] life after being a dopted by the Ritchies.” 8 Br. of Appellant at 33. Ritchie contends teachers and school personnel should have been

contacted in an effort to discover all reasona bly available mitigating evidence and counsel’s

failure to do so resulted in ineffective assistance. Id. at 34.

Although the focus of the defense was on R itchie’s early childhood, counsel did in fact present evidence of his later years. Both Ve rna and Oscar Ritchie testified about Ritchie’s

8 Ritchie’s mother, Marion Martin, divorced Donald Peoples while Ritchie was still an infant. Peoples took custody of Ritchie’s two older half-brothers but left Ritchie with Martin upon learning he was not Ritchie’s father. At the age of eight, Verna and Oscar Ritchie adopted Ritchie at which time his birth name of Peoples was discontinued.

13continuing troubles throughout school and their atte mpts at responding to those issues. They recounted how they ensured Ritchie attended school, Tr. at 2721, 2751, attended numerous parent-teacher conferences and counseling to address ongoing behavioral problems, id. at 2722- 23, 2752, placed him in special classes to address his needs, id. at 2723-24, sought counseling from their minister around the third and fourth grade, id. at 2727, and took him for treatment at Community North Hospital at age ten. Id. at 2732. They both discussed his experience as a teenager going to live with his mom, who afte r only four weeks kicked him out because she

could not handle him. Id. at 2727, 2756. Dr. Gelbort corroborated their testimony by recounting

Ritchie’s difficulties in school documented in hi s school records, including repeating the first grade and dropping out in the ninth grade. Id. at 2446, 2490-91. Dr. Gelbort testified to Ritchie’s learning disability and diagnosis of Atte ntion Deficit Disorder (ADD) at age eight and the various treatments tried, including taking Ritalin in elementary school and his placement in Community North at age ten. Id. at 2490-92. Dr. Gelbort explai ned the severely emotionally handicapped classes Ritchie attended. Id. at 2447. Additionally, Dr. Gelbort recounted head injuries Ritchie received from a motorcycle accide nt at age fourteen and being hit in the head with a baseball bat at age sixteen. Id. at 2442.

The post-conviction court found that Ritc hie’s counsel made a thorough, in-depth presentation to the jury during the penalty phase of trial concerning the facts and circumstances of Ritchie’s unfortunate childhood. App. at 433. Counsel tied Ritchie’s earlier childhood experiences before the age of two to the beha vioral problems he experienced throughout grade school and into high school. We agree with the pos t-conviction court. The record clearly shows that counsel’s investigation included Ritchie’s me dical, educational, family, and social history. “The investigation and presentation of mitigati ng evidence by trial counsel was substantial and the fact that post-conviction lawyers have ma naged to find some that may be non-cumulative

does not lead to a conclusion different from that of the post-conviction court . . . .” State v.

McManus , 868 N.E.2d 778, 791 (Ind. 2007). Further, the post-conviction court found that there was not a reasonable probability of the jury r ecommending a sentence other than death even had counsel presented the additional testimony of his struggles in school and impressions and observations of his educators. App. at 442. We ag ree and conclude counsel was not ineffective.

14B. Social History Report

As we indicated above, counsel obtained R itchie’s school, adoption, and hospital records and interviewed family members and persons familiar with Ritchie’s background. However, counsel did not direct the mitigation specialist to prepare a social history report summarizing this

information. Ritchie claims failure to do so cons titutes ineffective assistance. Br. of Appellant

at 42.

At the post-conviction hearing Ritchie offe red a written social history report as an exhibit. Upon reviewing the report, the post-c onviction court found that it reveals nothing that would have significantly altered counsel’s pr esentation of Ritchie’s family background and upbringing at trial. App. at 443. The Summary of Findings from the offere d social history report provides:

The social history investigation reveals that Benjamin Ritchie’s nuclear and extended family is steeped in dysfunction. Ben was raised in a family system characterized by neglect, abuse, sexual promiscuity, infidelity, and mental illness. There is also a multigenerational history of alcohol abuse and addiction, violence, the rejection and abandonment of children, and various forms of criminal and antisocial behavior.

Pet’r P-Cr. Ex. 20 at 3.

We first observe that because of the hearsa y statements contained throughout the report, it is not altogether clear whether the report its elf would have been admissible at trial over a timely objection. 9 In any event, Ritchie’s counsel pres ented the same information at trial, by way of live testimony, as that provided for in the social history report offered at the post-

9 An investigative report may be admissible if it meet s the requirements of Indiana Evidence Rule 803(8). Joyner v. State , 736 N.E.2d 232, 243 (Ind. 2000). The United States Supreme Court recently discussed this issue in Wiggins , 539 U.S. 510. The majority found the social history report “may have been admissible under Maryland law,” recognizing a relaxed st andard to allow for the consideration of any aspect of the defendant’s character the defendant woul d offer as a basis for a sen tence less than death. Id. at 536-37. The dissent took issue with this statement. Wiggins , 539 U.S. at 555-56 (Scalia, J., dissenting) (finding the statements within the social history report are hearsay, “were of especially dubious reliability,” and would be in admissible in a court of law).

15conviction hearing. Ritchie’s mother testified about her use of drugs while pregnant with Ritchie and during his childhood, which was confirmed by other witnesses. Tr. at 2283. Tony Wheeler, his mother’s paramour, described the sexual promiscuity, drug, and alcohol use occurring in

Martin’s household. Id. at 2322-27. Donald Peoples testified th at this led to the deterioration of their marriage. Peoples stated he took cust ody of the other two boys, leaving Ritchie behind

once Martin disclosed Ritchie was not in fact his son. Id. at 2350, 2355-56. Issues of abandonment were also introduced through Martin’s account of leaving Ritchie at the age of two

to meet a man in Florida. Id. at 2296. Martin detailed how Ritc hie was shuttled to Brenda and Larry Cotton, only to be retrieved by her because of allegations of child abuse. Id. at 2307-08. Shortly thereafter, Martin gave Ritchie to Vern a and Oscar because the man she was living with

at the time did not want him. Id. at 2309. Lillie Clifton described how twelve-year-old Ritchie felt he had no family and could not understand why Peoples or his mother did not want him. Id.

at 2407. The evidence of Ritchi e’s dysfunctional family life was corroborated by several other family members, including Ritchie’s uncle, id. at 2650-51 (recounting the abandonment by Martin when she would fail to show for visits); id. at 2652 (describing Martin’s drug use); Ritchie’s half-brother, id. at 2678 (recounting the drug use and pr omiscuity of Martin in front of him at ages five and six); Oscar Ritchie, id. at 2712, 2714-15 (confirming Martin’s drug use during pregnancy and abandonment of Ritchie); and Verna Ritchie, id. at 2739 (describing Martin’s appearance as “loaded” while pregnant ). As discussed previously, his continuing troubles and mental difficulties throughout school were presented through testimony from Verna

and Oscar Ritchie and Dr. Gelbort. Id. at 2447, 2491, 2724, 2732.

The evidence presented painted the exact same picture as that described in the offered social history report. We agree with the post- conviction court that the failure to direct the preparation of a written social history report did not constitute deficient performance.

C. Failure to Obtain and Present Appropriate Psychological Experts

Ritchie’s claims regarding the use of psychologi cal experts are two-fold. First, he claims counsel was ineffective for failing to procure the testimony of Dr. Pearce, who was Ritchie’s psychiatrist at Community North Hospital dur ing and following an in-patient admission.

16Second, he claims counsel was ineffective fo r not obtaining other psychological experts in addition to Dr. Gelbort, a neuropsychologist. Br . of Appellant at 46, 50. We address each in

turn.

(1) Interview and Presentation of Dr. Pearce

Dr. Pearce was Ritchie’s attending psychiatri st when Ritchie, in 1991 at age ten, was admitted as an in-patient to Community North Hospital, a psychiatric facility. Dr. Pearce continued to follow up periodically on Ritchie’s condition after his release and through 1994. In preparation for trial, counsel did not interview Dr. Pearce. P-Cr. at 184. At the post-conviction hearing, Dr. Pearce testified about the hospitalizati on at Community North Hospital. He testified Ritchie’s attempted suicide was an indicator of a serious mental health problem with depression.

Id. at 428. Additionally, he stated Ritchie was doing fairly well by late 1992. Id. at 433.

The record shows, however, that evidence of Ritchie’s hospitalization at Community North Hospital was admitted at trial. Dr. Gel bort detailed Ritchie’s troubles as a child and specifically testified before the jury about Ritchie’s psychiatric intervention at Community North Hospital. Tr. at 2495-96. Adding cumulative ev idence to Dr. Gelbort’s testimony would not lead to a reasonable probability that the jury would have recommended a sentence other than

death. See Harrison , 707 N.E.2d at 784 (affirming the post-conviction court’s finding that the mitigating evidence offered at the post-convicti on hearing was cumulative and counsel was not ineffective). We conclude that Ritchie has faile d to show the outcome of his trial would have been different had this additional testimony been presented. Thus, counsel was not ineffective.

(2) Presentation of Additional Psychological Experts

Dr. Gelbort reviewed Ritchie’s medical history and conducted a comprehensive neuropsychological examination. He concluded th at Ritchie suffered from a cognitive disorder not otherwise specified. Tr. at 2498. Dr. Gelbort noted that th e possible causes of Ritchie’s cognitive disorder included: his mother’s inge stion of drugs and al cohol during pregnancy, possible genetic predisposition, and possible head injuries. Id. at 2500-01. Counsel did not

17present any additional psychological experts for the penalty phase of trial. P-Cr. at 192. Ritchie claims that having competent psychological assi stance would have shown that Ritchie suffered from a bipolar disorder. Br. of Appellant at 22.

At the post-conviction hearing, Ritchie pr esented Dr. Robert Kaplan, a forensic psychologist, who testified Ritchie suffered from an unspecified bipolar di sorder. P-Cr. at 543. Dr. Kaplan relied upon essentially the same fact s and observations relied upon by Dr. Gelbort. The post-conviction court found that when asked to identify the pertinent physiological brain

defect that was the cause of R itchie’s afflictions, Dr. Kaplan was unable to specifically identify the cause but only speculated genetic factors or early childhood abuse, neglect, substance abuse, or abandonment could be to blame. App. at 439.

Dr. Kaplan offered the kind of expert tes timony that in most circumstances can be generated when an investigation is done in hinds ight. Pointing to the fact that two doctors disagree does not show counsel conducted an unconstitutionally inadequate investigation. See

Conner v. State , 711 N.E. 1238, 1256 (Ind. 1999) (noting “psy chiatrists disagree widely and frequently on what constitutes mental illness [and] on the appropriate diagnosis to be attached to given behavior and symptoms”) (citation omitted) . The ability of post-conviction counsel to locate and present expert opinion disagreeing with the psychiatric evidence at trial does not lead necessarily to the conclusion of counsel’s ineffectiveness. Id. We agree with the post-conviction court that counsel was not ineffective in failing to further investigate Ritchie’s mental capacities for mitigation purposes or in preparing and presenting that evidence to the jury.

III. Ineffective Assistance of Appellate Counsel

The standard of review for a claim of ineff ective assistance of appellate counsel is the same as for trial counsel in that the petitioner must show appellate counsel was deficient in performance and that the defici ency resulted in prejudice. Bieghler v. State , 690 N.E.2d 188, 192 (Ind. 1997). When raised on collateral review, ineffective assistance claims generally fall

18into three basic categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure to present issues well. Id. at 193-95.

Both of Ritchie’s claims of ineffective assistance of appellate counsel fall under the second category. Ineffectiveness is very rarely found in these cases because “the decision of what issues to raise is one of the most importa nt strategic decisions to be made by appellate

counsel.” Id. at 193 (citation omitted). Accordingly, our review is particularly deferential to counsel’s strategic decision to exclude certain issues in favor of others. Id. at 194. We first look to see whether the unraised issues were signi ficant and obvious upon the face of the record. Id. If so, then we compare these unraised obvious issu es to those raised by appellate counsel, finding deficient performance “only when ignored issues are clearly stronger than those presented.” Id. (citations omitted). If deficient performance by c ounsel is found, then we turn to the prejudice prong to determine whether the issues appellate c ounsel failed to raise would have been clearly more likely to result in reversal or an order for a new trial. Id.

Specifically, Ritchie claims appellate counsel failed to raise: (A) the inappropriateness of Ritchie’s death sentence and (B) the constitutionality of the exclusion of a juror.

A. Inappropriateness of Ritchie’s Death Sentence

Article VII, Section 4 of the Indiana Cons titution provides that “[t]he Supreme Court shall have, in all appeals of criminal cases, th e power to . . . review and revise the sentence imposed.” Our rules authorize a revision of a se ntence “if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” Ind. A ppellate Rule 7(B). On direct appeal, appellate counsel did not raise a 7(B) challenge to the appropriateness of Ritchie’s sentence. Ritchie

contends that counsel’s failure to do so amounts to ineffective assistance.

19Before the 2002 amendments to Indiana’s Death Penalty Statute, 10 this Court as a matter of course reviewed and revised sentences in capita l cases without the need of counsel raising this

claim as a discrete issue. See, e.g. , Minnick v. State , 698 N.E.2d 745, 760 (Ind. 1998) (“As part of our death penalty review, we will independe ntly consider the jury recommendation against death and determine whether the death penalty is appropriate.”) (citation omitted); see also

Timberlake , 690 N.E.2d at 266 (“Each death penalty case receives individualized appellate scrutiny to ensure that the death penalty is appropriate.”); Thompson v. State , 492 N.E.2d 264, 268 (Ind. 1986) (“[T]he State Suprem e Court must review every capital sentence to ensure that the penalty has not been imposed arbitrarily or caprici ously.”). It is true that on direct appeal in this case the Court did not engage in an inde pendent evaluation concerning the appropriateness of Ritchie’s sentence. However, counsel cannot be criticized for failing to raise an issue that this Court routinely addressed on its own initiative. 11

In any event, even assuming for the sake of argument appellate counsel’s failure to raise a 7(B) challenge fell below an objective standard of reasonableness, Ritchie has not demonstrated a reasonable probability that this issue would ha ve resulted in this Court revising his death

sentence. The nature of the offense is that the victim of the murder was a law enforcement officer acting in the line of duty. This Court ha s determined that shooting and killing an officer acting in the line of duty is “certainly among the most severe circumstances warranting the death penalty.” Pruitt v. State , 834 N.E.2d 90, 121 (Ind. 2005). As for his character, Ritchie argues that he is “neither the very worst offender nor has he committed the worst offense” to warrant the sentence of death. Br. of Appe llant at 80. This Court has observed, “[T]he maximum possible

10 At the time of Ritchie’s crime, Indiana Code sec tion 35-50-2-9(e) (1998) provi ded in pertinent part, “The court shall make the final determination of the sentence, after considering the jury’s recommendation, and the sentence shall be based on th e same standards that the jury was required to consider. The court is not bound by the jury’s recommendation.”

11 The 2002 amendments to Indiana’s sentencing statutes provided in pertinent part, “If the jury reaches a sentencing recommendation [of either the death penalty or life imprisonment without parole], the court shall sentence the defendant accordingly.” I.C. § 35-50-2-9(e). There has been no consensus on this Court concerning whether our review and re vise authority survives the 2002 amendments. See Pruitt
, 834 N.E.2d at 122 (Shepard, C.J., concurring in r esult) (questioning the continued use of the appropriateness review under the new sentencing scheme where the legislature has placed the question of appropriateness in the hands of juries); see also Baer v. State , 866 N.E.2d 752, 766-67 (Ind. 2007) (Shepard, C.J., concurring) (same).

20sentences are generally most appropriate for the worst offenders.” Buchanan v. State , 767 N.E.2d 967, 973 (Ind. 2002) (citations omitted). But we have clarified: “This is not, however, a guideline to determine whether a worse offender c ould be imagined. Despite the nature of any particular offense and offender, it will alwa ys be possible to identify or hypothesize a significantly more despicable scenario. Although maximum sentences are ordinarily appropriate for the worst offenders, we refer generally to the class of offenses and offenders that warrant the maximum punishment. But such class encompasses a considerable variety of offenses and

offenders.” Id.

Ritchie’s character includes an unfortunate ch ildhood and mental health issues. It is of

course true that “evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” Penry v. Lynaugh , 492 U.S. 302, 319 (1989) (quoting California v. Brown , 479 U.S. 538, 545 (1987) (O’Connor, J., concurring)). Childhood abuse and privation may, along with other mitigators, “influence[] the jury’s appraisal of . . . moral culpability.” Williams , 529 U.S. at 398. However, this Court has consistently held

that evidence of a difficult childhood warra nts little, if any, mitigating weight. See Coleman v.

State , 741 N.E.2d 697, 703 (Ind. 2000) (rejecting the cl aim that evidence of childhood abuse and neglect if presented to the sentencing court would have resulted in a sentence other than death);

Peterson v. State , 674 N.E.2d 528, 543 (Ind. 1996) (mitigating weight warranted by a difficult childhood is in the low range); Loveless v. State , 642 N.E.2d 974, 977 (Ind. 1994) (showing such evidence is occasionally declared not mitigating at all).

Ritchie cites Spranger v. State , 650 N.E.2d 1117 (Ind. 1995), to support his argument for

a revision of his sentence. In th at case this Court affirmed the post-conviction court’s decision to set aside Spranger’s death sentence based on the (b)(6)(A) aggravating factor, the victim of the murder was a law enforcement officer acting in the course of duty. The post-conviction court determined that Spranger was a “young man of lim ited mental ability with no history of violence

or criminal conduct.” Id. at 1125. These facts in Spranger are readily distinguishable. Here the record shows that Ritchie has an extensive juve nile history – involving three battery charges –

21that continued into adulthood. As the trial court observed, Ritchie’s history of juvenile offenses demonstrated a “pattern of violent crimes fina lly escalating into murder.” Tr. at 2908. As mentioned earlier in this opinion, at the post-convic tion hearing Dr. Kaplan testified that Ritchie suffered from a bipolar disorder. P-Cr. at 543. However, the post-conviction court found that Ritchie had sufficient mental capacity to make appropriate decisions but did not make a great effort to control his anger and continued to engage in destructive behaviors despite longsustained efforts by those around him. App. at 466-67. The post-conviction court concluded that

there was no evidence that Ritchie’s mental illne ss negated his conscious choice to fatally shoot Officer Toney. Id. at 467. In sum, we conclude there is nothing about Ritchie’s character or the

nature of the offense Ritchie committed that w ould justify revising his capital sentence. Having reached this conclusion, we reach its obvious corolla ry that Ritchie has failed to show that the outcome of his direct appeal would have been a ny different had appellate counsel raised a 7(B) challenge to his sentence.

B. Exclusion of a Prospective Juror

During voir dire, the State challenged eight pr ospective jurors for cause based on their beliefs about the death penalty. Ritchie points to one in particular, prospective Juror McClimon (“McClimon”). Ritchie argues the colloquy with McClimon did not establish that her views about the death penalty substantially impaired her ability to follow her oath as a juror, and her exclusion should have been challenged on di rect appeal. Br. of Appellant at 82. 12

The United States Supreme Court has established certain principles regarding the exclusion of jurors based upon their beliefs about the death penalty. First, a criminal defendant has the right to an impartial jury not tilte d in favor of capital punishment by selective prosecutorial challenges for cause. Uttecht v. Brown , 127 S.Ct. 2218, 2224 (2007) (citing

12 The post-conviction court determined that trial c ounsel did not object to the removal of McClimon and thus appellate counsel would have ha d to raise this issue as a fundamental error. App. at 465. The postconviction court conclude d Ritchie did not show the dismissal constituted a fundamental error and therefore failed to show appellate counsel was deficien t in not raising the issue or that he was prejudiced by the failure to do so. Id. The record does not support the post-conviction court’s findings. The record shows that counsel objected to the removal of McClimon, citing to both federal and state authority. Tr. at 684. The trial court overruled the objection stating, “The Court is of the opinion that the prospective juror does meet the standard of the Indiana code and of [ Wainwright v. ] Witt . . . .” Id. at 687.

22Witherspoon v. Illinois , 391 U.S. 510, 521 (1968)); see also Bieghler v. State , 481 N.E.2d 78, 87 (Ind. 1985)) (The mere disagreement with the death penalty, conscientious scruples, or even feelings that one would find it almost impossible to vote for death are not sufficient to exclude a juror for cause.). Second, the Stat e has a strong interest in having jurors able to apply the death penalty within the State’s capital punishment framework. Uttecht , 127 S.Ct. at 2224 (citing Wainwright v. Witt , 469 U.S. 412, 416 (1985)). To balance th ese interests, “a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his

instructions and his oath.” Witt , 469 U.S. at 420 (citation omitted) (emphasis omitted). If a prospective juror is barred from jury service based on his or her views about capital punishment on any broader basis than inability to follow the law or abide by his or her oaths, the United States Supreme Court has established a per se rule requiring the vacation of a death sentence imposed by a jury from which a potential juror had been erroneously excluded for cause. Gray v. Mississippi , 481 U.S. 648, 659-60 (1987) (discussing the continued application of the per se rule established in Davis v. Georgia , 429 U.S. 122 (1976)).

In determining whether the removal of a potential juror would vindicate the State’s interest without violating the defendant’s rights, th e trial court is required to make a finding as to substantial impairment based in part on the demeanor of the juror. Uttecht , 127 S.Ct. at 2224 (citing Witt , 469 U.S. at 424-34); Daniels v. State , 453 N.E.2d 160, 166 (Ind. 1983) (When the juror’s answers are equivocal it is the duty of the trial court to pursue the matter further until it is established whether the juror is “irrevocably committed” to vote against the death penalty.). Once a trial court has made a finding of substantia l impairment deference is owed to the trial court, and its finding is reviewed for an abuse of discretion. Uttecht , 127 S.Ct. at 2228.

Here the trial court supervised a diligen t and thoughtful voir dire and engaged in a lengthy discussion with McClimon. After indicati ng her feeling of not believing in the death penalty, the following colloquy took place between the trial court and McClimon:

COURT: You would be required to weigh the mitigating and the aggravating circumstances, and then to make a recommendation of either the death penalty, life without parole, or a term of years.

23Now, if those were your options , do you feel that you would be able to consider with an ope n mind whether or not the death penalty should be recommended? PROSPECTIVE JUROR McCLIMON: Yeah, I guess so. COURT: Do you think that you might be able to recommend the death penalty? PROSPECTIVE JUROR McCLIMON: It’s possible. I mean I guess I just have to hear the case. COURT: Okay. That’s certainly a fa ir answer. It is important, so you’re not precluding the fact that you might not ever be able to recommend it? PROSPECTIVE JUROR McCLIMON: Right, I guess, yeah.

Tr. at 679-80. However, when the prosecutor aske d her if her beliefs would interfere with her ability to follow her oath as a juror and fa irly consider recommending the death penalty, McClimon answered, “Yeah, I think it will.” Id. at 680. The prosecutor asked the same question again, and she replied, “Yeah, it might. I just don’ t know. I’ve never been put in a situation like this. And before I’ve always felt that, like I said, that I just don’t – I’m not for the death penalty. In some situations yeah, I guess so, but I don’t know.” Id. at 681. The prosecutor also asked whether she could honestly see herself recomme nding the death penalty if Ritchie was found guilty of murdering a police officer. McClimon an swered, “I don’t think so. I don’t really think

I could.” Id.

The trial court upon hearing McClimon’s conf licting and equivocal answers concluded that she could not fulfill her duties and sworn oath as a juror. Id. at 687. A potential juror’s bias cannot always be deduced in a question-and- answer session, and “many veniremen simply cannot be asked enough questions to reach th e point where their bias has been made ‘unmistakably clear.’” Uttecht , 127 S.Ct. at 2223 (quoting Witt , 469 U.S. at 424-25). Despite a lack of clarity in the record, “there will be situati ons where the trial judge is left with the definite impression that a prospective juror would be unabl e to faithfully and impartially apply the law.”

Witt , 469 U.S. at 425-26. When the prospective ju ror gives ambiguous, equivocal, or conflicting statements, assessing the demeanor of the venire is a critical factor in evaluating the attitude and qualification of potential jurors. Uttecht , 127 S.Ct. at 2224. Thus, th e deference given to the trial court encompasses its resolution of any e quivocations and conflicts in the prospective jurors’ responses on voir dire. Witt , 469 U.S. at 426.

24Considering the voir dire as a whole and giving the requisite deference to the trial court’s findings, we cannot say there is a reasonable proba bility upon appeal that this Court would have

found the trial court abused its discretion in fi nding McClimon’s views against the death penalty substantially impaired her ability to follow her oath. Thus, we cannot say this issue was clearly stronger than those presented on direct appeal. On this issue, counsel’s performance was not

deficient.

IV. Denial of a Full and Fair Post-Conviction Hearing

Ritchie contends that he was denied a fu ll and fair post-conviction hearing. This contention is based on the following facts. At th e hearing, Ritchie called as an expert witness a lawyer with extensive experience in capital litigation. The witness provided lengthy testimony concerning what is expected of counsel in th e preparation and trial of a capital case, the prevailing professional norms for a capital defens e attorney, and, on a wide variety of issues, what he would have done differently than Ritchi e’s lawyers. P-Cr. at 640-76. However, on at least three occasions during the witness’ testim ony, Ritchie asked – sometimes worded slightly differently – whether the witness had “an opini on regarding the reasonableness” of trial and appellate counsel’s conduct. Id. at 655, 664, 671. Sustaining the State’s objection, the postconviction court would not permit the witness to give testimony on such an opinion. Ritchie made an offer of proof, which essentially recounted many of the allegations raised in this appeal

which Ritchie contends amount to ineffective a ssistance. According to Ritchie, the witness

would have testified that the conduct of Ritc hie’s trial and appellate counsel “fell below prevailing professional norms and was unreasona ble under the standards of the conduct of counsel in capital defense cases in Indiana and nationally.” Id. at 684.

The decision to admit or exclude expert testimony is entrusted to the sound discretion of the trial court, and we will reverse only for abuse of that discretion. Williams v. State , 706 N.E.2d 149, 163 (Ind. 1999). Although expert witne sses may testify concerning their opinions generally, see Ind. Evidence Rule 702, experts may not testify “to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has

2526 testified truthfully; or legal conclusions .” Evid. R. 704(b) (emphasis added); see also Carter v.

State , 754 N.E.2d 877, 881-82 (Ind. 2001). And this is so because: (1) legal conclusions are not helpful to the trier of fact, (2) legal conclusions are reserved solely for the court’s determination, and (3) it is the function of the court, not th e expert witness, to instruct on the law. See generally 13 Robert Lowell Miller, Jr., Indiana Practice, Indiana Evidence § 704.206, 460 (2d ed. 1995).

Apparently contending that an opinion about the reasonableness of counsel’s conduct is not a legal conclusion, Ritchie cites Strickland for the proposition that “[t]he reasonableness of performances is a ‘mixed question of law and fact .’” Br. of Appellant at 27. We first observe

that Strickland actually declares, “ Ineffectiveness is not a question of basic, primary, or historical fact. Rather, . . . it is a mixed question of law and fact.” Strickland , 466 U.S. at 698 (citations omitted) (emphasis added); see also Coleman , 741 N.E.2d at 699 (“[B]oth the performance and prejudice components of the ineffectiveness inqui ry are mixed questions of law and fact.”) (citation omitted). In any event, even assuming for argument’s sake that Ritchie’s basic premise is correct, this contention does not advance his claim. When facts sufficient to demonstrate deficient performance are undisputed, then whet her those facts show ineffective assistance becomes a question of law. See, e.g. , Moffitt v. State , 817 N.E.2d 239, 246 (Ind. Ct. App. 2004) (declaring that where facts sufficient to create probable cause are undisputed probable cause is a question of law).

In this case, the facts upon wh ich Ritchie relies are not in dispute. The question is

whether those facts demonstrate ineffective assist ance of counsel. This is a question of law for the post-conviction court to resolve. We find no abuse.

Conclusion

We affirm the judgment of the post-conviction court.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.