# In the 

# Indiana Supreme Court

David Leon WOODS, ) Supreme Court Cause No. Petitioner, ) 06S00-0612-SD-544

v. ) ) Boone Superior Court STATE of Indiana, ) S 7007 Respondent. )

PUBLISHED ORDER CONCERNIN G SUCCESSIVE PETITION
FOR POST-CONVICTION RELIEF IN CAPITAL CASE

Introduction

Having exhausted the judicial review to whic h he is entitled as a matter of right, David
Leon Woods remains sentenced to death for the intenti onal killing of an el derly DeKalb County man during a robbery. Before us now is Woods’ s request to litigate a second, or “successive” post-conviction proceeding involving two claims: (1 ) that he is exempt from the death penalty because he is mentally retarded, and (2) that hi s first state post-conviction proceeding was unfair because he had a dispute with hi s attorneys about strategy. Beca use we conclude Woods has not met the threshold showing required on either cl aim, we deny authorization for any further successive post-conviction proceedings. A date for execution of the sent ence will be set by separate order.

Background

On April 7, 1984, in Garrett, Indiana, Woods, along with Greg Sloan and Pat Sweet, devised a plan to steal Juan Placencia’s televi sion. Placencia, age 77, was an acquaintance of Woods and his mother. Woods, Sloan and Sweet went to Placencia’s ho me. Woods was armed with a knife, but assured Sloan and Sweet that he intended only to scare Placencia with it. While Sweet stayed in the yard, Woods and Sloan ap proached the apartment and rang the doorbell. When Placencia opened the door, Woods immediatel y jumped in and stabbed him several times with the knife. Placencia fell back into a chair, directed the intruders to his money, and began asking for help. Woods took $130 from Placenci a's wallet, then stabbed Placencia again repeatedly—twenty-one times to the face, neck, and torso. An autopsy showed Placencia died
from three stabs wounds to the heart and one th rough the skull to the brain. Woods and Sloan left Placencia’s apartment with the cash Woods had taken and a television th ey later sold for $20. They also washed their clothes and threw the kni fe and other incriminating items in a creek.

Woods was charged with murder and robbery. See Ind. Code § 35-42-1-1(1) (murder); § 35-42-5-1 (robbery). The State sought th e death penalty, alleging one aggravating circumstance that rendered Woods eligible fo r a death sentence: Woods had committed “an
intentional murder in the commission of a robbe ry.” Ind. Code § 35-50-2-9(b)(1). Venue was transferred from DeKalb County to Boone County, and the case was tried in the Boone SuperiorCourt.

The jury found W oods guilty as charged and in the penalty p h ase that followed, the jury
unanim ously recomm ended the death sentence. See I.C. § 35-50-2-9(e) (providing that a jury

m a y recomm end the death penalty only if it finds the state has pr oved an aggravating
circum stance beyond a reasonab l e d oubt and th at any m itig ating circumstances are outweighed by the aggravating circum stances). The Boone Superior Court followed the jury’s

recomm endation and sentenced W o ods to death.

Courts have affir m ed the conviction s and death sentence at each stage of subsequent
review. W e affirm ed the death sentence on direct appeal in W oods v. State, 547 N.E.2d 772 (Ind. 1989) (addressing argum ent s relating to W oods’s m e ntal competence to stand trial, sufficiency of the evidence, the prosecutor’s conduc t, fairness of the trial, and appropriateness of the death sentence), reh'g granted , 557 N.E.2d 1325 (Ind. 1990) (addressing, but rejecting, an

argum ent concerning ad m i ssion of victim i mpact evidence), cert. denied , 501 U.S. 1259 (1991). Woods sought collateral relief in a state trial court, but that c ourt denied his post-conviction petition and we affir m ed in W oods v. State , 701 N.E.2d 1208 (Ind. 1998) (addressing argum ents relating to the effective assistance of counsel), reh’g denied (1999), cert. denied , 528 U.S. 861 (1999). Woods then sought relief in federal cour ts. The United States District Court for the Southern District of Indiana denied Woods’s pe tition for a writ of habe as corpus in W oods v.
Anderson , 302 F. Supp.2d 915 (S.D. Ind. 2004). The Un ited States Court of Appeals for the
Seventh Circuit affirm ed in W oods v. McBride , 430 F.3d 813 (2005), reh’g and reh’g en banc
denied (2006), cert. d e nied , 127 S. Ct. 391 (2006).

Woods has thus received the re view of the convictions and death sentence to which he is
entitled as a m a tter of right. W e have jurisd icti on in this po st-conv ictio n proceedin g because h e is sentenced to death. See Ind. Appellate Rule 4(A)(1)(a).

Indiana’s Successive P o st-Conviction Proced ures

Bef o re us now is W o ods’s r e quest to litig ate additional p o st-conv iction claim s . As indicated, Woods has already availe d him s elf of our rule that pr ovides a person convicted of a
crim e in an Indiana state court one collateral review of a conviction and sentence in a postconviction p r oceed ing. See Ind. Post-Conviction Rule 1. Because he has comp leted the review
to which he is entitled as a m a tter of righ t, he needs our perm ission to litigate another or “successive” post-conviction claim

. W e per m it such a proceeding to go forward only “if the petitioner establishes a reasonabl e possibility that the petitione r is entitled to post-conviction relief.” P-C.R. 1 § 12(b). In deciding wh ether W oods has m a de the required showing, we
consider the applicab le law, the successive post-conviction papers, 1 materials from his prior

1 Woods tende red a “[Successive] Petition for Post -Convi ction Relief,” and f iled a “Successive Post -Conviction
Relief Rule 1 Petition” and a “Petition and Me m o randum in Support of Motion for Lea v e to File Successive Petition
fo r Po st-Co n v iction Relief an d M o tio n fo r F u n d s. ” The St ate th en filed th e “State’s Verified Co nso lidated Resp on se in Oppo sitio n to Mo tio n fo r Leav e to File Su ccessi v e Petitio n for Po st -Co n v i ctio n Relief an d Mo tion for Fund s.”
Wood s was allo wed to file “Petitio n e r’s Resp on se to Stat e’s Verified Co n s o lid ated Resp on se in Oppo sitio n t o Mo tio n fo r Leav e t o File Successor Petition for Po st Con v i ction Relief,” and t h e St ate was allo wed t o file th e “State’s Verifi ed Surrep l y to Petitio n e r’s Resp on se.”

2appeals and post-conviction procee dings, including the record, briefs and court decisions, and any other material we deem relevant. See id. If we autho r ize the pro ceeding to go forward,
Woods woul d be entitled to counsel at public expe nse and the case would return to the trial court for further p r oceed ings in accordan ce with Post-Conviction Rule 1. See id . § 12(c).

The Claims

1. Woods has not show n a reasonable possibi lity that he is mentally retarded.
Woods claim s (a) he is exempt from execu tion under the state and federal constitutions 2 becaus e he is m e ntally re tarded a s di scussed in Atkins v. Virginia , 536 U.S. 304, 122 S. Ct. 2242 (2002),
and inte rpre ted by th is Court in Pru itt v. S t ate , 834 N.E.2d 90, 103-110 (Ind. 2005); or (b) he at least should be allowed to hire experts and li tigate whether he is m e ntally retarded.

In Atkins , the United States Suprem e Court declared tha tm e ntally retarded per s o n s are regard ed as less culpab le becau se o f their dim i nished m e ntal capacities , iden tifieda “national consensus” agains t executing m e ntally retarded persons, and held that execution of m e ntally retarded persons is an “excessive sanction” th at violates th e Eighth Amendm ent to the United States Constitution. The descriptions of m e ntal retardation cited in Atkins have two components; the person must have: (1) significantly subav e ra ge inte lle ctu a l f unction i n g, and (2) lim itations in adaptiv e skills, both m a nifesting before the pe rson reaches age eighteen. 536 U.S. at 308 n.3;
122 S. Ct. a t2249 (citing descriptio ns of mental retardation from the Am erican Association of
Mental Retardation an d the Am erican Psychiatric Association ) . Under thes e d e scrip tion s , a person is considered to m eet the subaverage in tellectual functioning component if the person’s
f u ll-sca l e IQ test scor e is two standar d deviatio ns below the m ean; i.e., an IQ between 70 and 75
or lower. 536 U.S. at 309 n.5, 122 S. Ct. at 2245; accord W illiam s v. State , 793 N.E.2d 1019, 1028 (Ind. 2003).

Indiana en acted leg i s l ation prohibiting execution of m e nt ally retarde d persons b e fore
Atkins was decided. 3 Our statute provides that a “m entally retarded individual” is an individua l

2 W ood s cites two p r o v i si o n s o f th e U.S. Co n s titu tion : th e Eigh th Amen d m en t (p ro h i b itin g cru e l an d u n u s u a l

pu ni s h m e nt ); and th e Fo urt e e n th Am endm ent ( g u a ra nt eei n g e qual p r ot ect i on a n d due p r ocess t o ci t i zens)

. He ci t e s several sections in Article I of Indiana ’ s Constitution: Sec tion 13 (specifying, in part, t h at “the accused shall ha ve th e righ t to a p u b lic trial, b y an i m p a rtial j u ry, in th e cou n ty in wh ich th e o ffen s e sh all h a v e b een co mmit t ed ; to b e hear d by hi m s el f an d c o u n se l ; t o dem a nd th e n a t u re an d cause of t h e a ccusat i o n agai nst hi m , and t o ha ve a co py there o f; to m e et the witne sse s face to face, and to ha ve com pulsory proc ess for obtaini ng witnesses i n his fa vor” );
Sectio n 16 (specifyin g t h at “[c]ru el and unusu a l p u n i sh m e n t s sh all no t b e in flicted ” and th at “[a]ll p e n a lties sh all b e
pr o p o r t i one d t o t h e nat u re o f t h e of fe nse”); and Sect i on 1 8 (speci fy i ng t h at t h e “penal c ode s h al l be fo un de d o n th e pri n ciples of re form ation, a n d not of vindictive justice”).

3 See I n d. C o de §§ 3 5

- 3 6- 9- 1 t h r o ug h 7. Un d e r I ndi a n a’s st atut ory sc hem e , w h ethe r a pe r s on i s m e nt al ly ret a rde d i s
to b e d ecid e d b e fo re trial, bu t th e leg i slatio n was en acted after Wood s’s trial. Ou r l e g i slatu r e sp ecified th is law

ap p lies t o cap ital cases tr ied af terJu ne 1994

. See Pub. L. 15 8- 199 4 § 8, 19 94 I n d

. A c t s 18 49 , 185 7. W o od s w a s
tr i e d t e n y ears earl i e r i n 19 8 4

. Al th o u g h we have f o l l o we d th e l e gi sl at ure ’ s speci fi c m a ndat e o f re p o se and ha ve not appl i e d t h e l e g i sl at i on t o deat h sent enc e s impos ed be f o re i t s effect i v e dat e , we ha ve no neth el ess ap pl i e d th e Atki n s
pr osc r i p t i o n ag ai nst execut i o n of m e nt al ly ret a rde d per s o n s t o deat h-se nt e n ced i n m a t e s wh o ha ve rai s ed t h e cl aim

. See, e.g., W illia m s , 793 N.E

. 2d at 1027-28 (de n ying i n m a te perm i ssion to litigate in successi ve pos t -conviction

pr ocee di n g s i s sue of whet her he wa s m e nt all y ret a rde d p u r s ua nt t o At ki ns ); Rastafari v. State , N o . 45 S0 0-0 210

- S D

5 1 0 (Ind

. Feb. 5

, 20 03) (un pub lish e d o r d e r allo wing in m a te to litig ate th e i ssu e).

3who, before age 22, “m anifests (1) significantly subaverage intellectual functioning; and (2) substantial impairm ent of adaptive behavior . . . documented in a court ordered evaluative report.” Ind. Code § 35-36-9-2. Although not identical to either description cited in Atkins

, Indiana’s statute sim ilarly require s proof that the person m eets bot h the intellectual and behavior

components. W e have said that IQ tests ar e not conclusive on the question of whether an
individual m eets the subaverage intellectual functioning component, and that courts m a y consider IQ scores tog e ther with o ther evid ence of the person’s m e ntal capacity. Pruitt , 834 N.E.2d at 106. Nonetheless, IQ scores m a y be su ch that they show the person does not m e et the
intellectual component of m e ntal retardation. See, e.g., W illiam s , 793 N.E.2d at 1028.

Woods has been the su bject of a substantial amount of exam ination and testing; the record already contains extensiv e docum e ntation about his mental status. W oods was evaluated

severa l tim e s by educa t ional and m e ntal he alth prof essionals bef o re he comm itted the mu rder. ( See, e.g.

, PC Record, Def’s Exh. E, a separate volum e of the record summ arizing mu ch of this
inform ation.) He has retained at least three m e ntal h ealth experts to exam in e hi m at trial (Neil
Sha m berg, Ph.D) and in his first state post-conv iction proceeding (Jeffrey Sm alldon, Ph.D, and
Linda W e tzel, Ph.D). At least three other psyc hological reports in the record address W oods’s
intellectual function i ng. Most r ecen tly, W oods subm itted a letter from Dr. Denis Keyes, Ph.D. ([Successive] Post-Conv. Pet., unlab eled attachm e nt, letter date d December 26, 2006.) Despite considerable resources already having been spent to investigate W oods’s m e ntal status, W oods is
not identified as m e ntally retarded in any of these sources or by his own experts.

Having reviewed the docum entation cited by th e parties, we conclude the record does not establish a reasonable possibility that W oods’s intelle ctual functioning puts him in the class of persons who are considered m e ntally retarded. Woods was born in 1964. In April 1977, at age 12, W oods’s IQ was scored as 84 based on results of the California T e st of Mental Maturity (CTMM). (PC Record p. 1272, Def’s Exh. K, record s of G a rrett Junior High School.) In 1980, as part of a full diagnostic evaluation at the Departm e nt of Correcti on Youth Authority, W oods scored a full-scale IQ of 84 on the Wechsler In telligence S cal e for Children-Rev ise d (W ISC-R) (PC Record p. 1408-09, evaluation by Betty Jean Va ldez, M.A., behavioral clinician, and Ivan Pangrac, Ph.D, clinical psychologist.) This repo rt showed Woods’s subset nonverbal IQ score in the low average range and his verbal IQ in th e range of borderline m e ntally retarded, but his
inte llec t ua l f unction i ng with ref e ren ce to the f u ll -scale score was describe d as “in the very low

average ran g e.” ( Id. p. 1409.) This report recommended rem e dial education, but did not suggest special education or other services f o r m e ntally retarded children. In 1979, an evaluator at the
Northeastern Center observed that W oods appeared to be “within the norm a l range intellectually,” although no tes ting was perform e d. (PC Record p. 1469, report of Bonita Sheldon, M.S.)

Other testin g occurred when W oods was an ad ult. He sco r ed a f

u ll- sc ale IQ of 9 3 in
1984 on a Wechsler A dult Inte lligence Scale (WAIS) te st perform e d by his trial defense expert. (PC Record p. 1481-82, Psychological Evaluation by Neil Sha m berg Ph.D.) Dr. Sha m berg
found the subtest scores to have an unusual pattern suggestive of m i ni m a l brain dam a ge, dyslexia, or other learning disorder, but neither his report nor his testimony m e ntions m e ntal retardation. In 1994 and 1995, when he was in his thirtie s, Woods was extens ively evaluated in
connection with his first state post-conviction p r oceed ings by Li nda Wetzel, Ph.D. and Jeffrey
Sm alldon, Ph.D. (PC Record p. 2095-2138, Psychologi cal Evaluation report by Dr. Sm alldon.)

4Woods scored a full scale IQ of 86 on the Wechsler Adult Inte lligence Scale-Revised Test
adm i nistered by Dr. W e tzel in 1994. (PC Re cord p. 2129.) Dr. Sm alldon noted the unusual patte rn of te st scor es an d attr i buted that result to possible func tional brain impair m e nt, but he did not suggest that W oods was m e ntally retarded. Ev en if, as Woods argues, these results should be
discounted b ecause W o ods was old e r or because better test s were availab l e, the fact rem a ins that despite all this testing and the m a ny exam inations and consultations over th e years, none of the s e professionals diagnosed hi m as m e nt ally retarded.

The infor m ation m o st fa vorable to Woods shows that in 1980 and 1981, he was evaluated by a staff psychologist in connectio n with be ing placed in a group hom e. (PC Re cord p. 1293- 98, Def’s Exh. M, reports of Dr. Richard D. Ka hoe, Ph.D.) The psychologist adm i nistered a “Quick Test” on which Woods scor ed a “vocabulary m e ntal age” e quivalent to an IQ of 73. ( Id. p. 1297.) T h e psychologist also adm i nistered portions of th e Peabody Individual Achievem ent Tests; W o ods scored higher than expected on the m a th portion and lower on language portions. ( Id. p. 1296.) W oods also points to a W i de Range of Achievem ent Test (WRAT), a d m i nistered in 1984 when he was 20, which sho w ed his perf or m a nce in reading, spelling and arithm etic was perform e d a tor below the sixth grade level. (P C Record p. 1482, record of Northeastern Center, Psychological Evaluation by Neil Sham berg, Ph.D.) W o ods cites thes e scores, th en notes th at persons with m ild m e ntal retardation are genera lly considered “educabl e” up to a sixth grade level. (Pet’s Resp. p. 4, citing Diagnostic and Statistical Manual of Mental Disorders, Text
Revision , 43 (4th ed. 2000).) From this, W oods appa rently would have us conclude that he is, therefore, mentally retarded. As th e State points out, however, these were not full-s c ale IQ scores, which is required in both descriptions cited in A t kins

. E v e n i f I Q s c o r e s ar e n o t necessary or are not conclusive under Indiana’s stat ute, the fact rem a ins th at none of the m e ntal health professionals, despite th e extensive testing and evalua tion, have concluded Woods is

m e ntally retarded.

Woods did poorly in school and he did not graduate fromhigh school. His lowest fullscale IQ score was 84; his highestwas 93. He scored 73 on two pa rtial tests. But none of the experts have said W o ods is m e ntally retarded . Denis Keyes, Ph.D., who considered W oods’s

case m o st recently, noted the “clea r evid ence of brain dam a ge,” but he did no t conclude th at Woods m eets the intellectual func tioning component of the mental retardation descriptions. The most Dr. Keyes was willing to say was that W oods “needs to be fully evaluated.” Having considered the evidence, however, we conclu de that W oods has not shown a reasonable possibility that he m eets the intellectual functioni ng compone nt of m e ntal retardation. In light of this, we need not address W oods’s argum ent re lating to the adaptive behavior component.

2. Woods’s claim th at he had a “conflic t of interest” w i th the attorneys who represented him in the state pos t-c onviction p r oceedings is raised too late, and in any event,
other courts have concluded that he receiv e d a fair post-conviction hearing. Attorn eys on contract with the state public defender were appointed to represent W oods in his first postconviction proceed ing accord ing to our ru les. See P

- C. R. 1, § 9; Ind. Crim inal Rule 24(H) (provid i ng for counsel at public exp e nse in post- conviction proceed ings). Three w eeks before the hearing on the m e rits of W o ods’s fi rst post-conviction pe tition, W oods filed, pro se , a “Motion for Change of Counsel,” stating thathe disagreed with the m a nner in which the attorneys w e re handling his case and asking the post-conviction cour t to appoint new attorneys. (PC Record p. 277-85.) His attorneys also filed a “Motion to W ithdraw as Counsel,” stating that

5the differences with W o ods “raise d concerns that couns el [would] be unable to provide effective assistance of counsel.” (PC Record p. 281-83.) The post-conviction c ourt, concluding that “[n]either motion contains any fact s which justify change or withdr awal of counsel,” denied both motions. (PC Record p. 284-85.) T h e case pro ceed ed to a hearing on the m e rits of the po stconviction petition which, as prev iously indicated, was denied by the post-conviction court and
affir m ed by this Court on appeal. Woods did not raise the trial court’s de nial of his m o tion for new attorneys as an issue in the post-conviction appeal.

This disagreem e nt with his attorneys about strategy is what Woods now labels a “conflict of interest,” and he asserts the post-conviction c ourt’s denial of his m o tion for new at torneys left
him in the “untenable position ” of choosing betw een being repres ented by attorn eys with whose strategy he disagreed or having to represent him s elf. W o ods claim s he “has nev e r had the opportunity to fully address this claim ” and as a result, he has been denied a “funda mentally fair and adequate” post-conviction proceeding in viol ation of the state and federal constitutions. 4

Even assum i ng W oods had som e cognizable cl aim that the post-conviction court erred in denying him new attorneys m e re weeks before the scheduled post-convi ction hearing, tha t

argum ent could have been raised in the appeal from the denial of post-co nviction relief, but wa s
not. See W o ods v. State , 701 N.E.2d 1208. W o ods concedes he knew about the issue but did not raise it. (Mem . in Support p. 6.) Our case law is clearly established that an issue known and
available bu t not raised in an ear lier proceed ing, is procedurally de faultedas a basis f o r relief in subsequent proceed ings. See, e.g., Matheney v. State , 834 N.E.2d 658, 662 (Ind. 2005); Daniels
v. State , 741 N.E.2d 1177, 1184-87 (Ind. 2001). W oods’s claim is procedurally defaulted, and
he is not entitled to have us decide his claim now.

In any event, W oods has alrea dy litigated this issue in two federal courts , and he lost. In the federal habeas proceeding, W o ods argued th e State should have pr ovided him “with the opportunity to air his concerns about the ‘conflic t,’ and the denial of that opportunity was a violation of due proce ss.” W oods v. McBride , 430 F.3d at 827. The district court found “no basis for concluding that either the trial court' s ruling denying the m o tion to withdr aw f iled by counsel for Woods in August 1995 or the existence, m a nner , or type of review afforded on this subject by the Indiana S uprem e Court denied Woods representation in the post-conviction action
in a m a nner violative of due process.” W oods v. Anderson , 302 F. Supp.2d at 944. The Seventh
Circuit affirm ed, agreeing with the district co urt that there was no basis for concluding that Woods had been depriv ed of any constitu tion a l right:

[W]e agree with the state’s argum ent that , in certain respects, what Woods has
characterized as a “conflict” with his counsel is rea lly nothing m o re than an

attemp t to advance an ineffective a ssistance of PCR c ounsel claim while sidestepping procedural default. Viewed in tha tlight, there was certainly nothing
unreasonable about PC R counsel’s decisi on to push forward with a powerful

m itigation s t ra tegy at the PCR hearing a nd to elic it m itiga tion testim ony f r om Woods him s elf (who, at trial counsel' s sugge stion, chose not to take the stand in

4 Woo d s cites t h e sam e co n s titu tio n a l prov isi o n s : th e Eigh t h and Fo urteenth Am en d m en t s to th e fed e ral co n s titu tion

an d Article 1

, Sectio n s 13 , 16 and 1 8 of Ind i an a’s con s titu tio n.

6the pen a lty phase). Cen t ra l to the po st-c onv ictio n litiga tion s t ra tegy was the ef f

o rt to fram e a nd support the argument that trial counsel was constitutionally defective, and as discussed at length above, a cornerstone of that strategy was to
elicit additional details at the PCR heari ng that would suggest that trial counsel was not up to snuff during the penalty phase . We have already disposed of that line of argum e nt, but it is equally clear to us that PCR counsel’s strategy was a sound one. PCR counsel did, after all, tu rn up additional m itigation details—
albeit details insufficient to indicate that trial counsel was constitutionally ineffective in not eliciting those details the first tim e around.

* * * *

As far as W oods' s suggestion of an “actual conflict of interest,” we find at m o st a disagreem e nt between Woods and his PCR c ouns el as to strategy. W e ha ve found that pe rsona lity conf licts and disagr e e m e nts over tria l s t ra teg y of this sor tdo not
constitute reversible error. Likewise, to the exte nt W oods may be suggesting it, we find nothing to indicate th at the s trateg i c d i sag r eem en t ha mpered his ability to
assist PCR c ounsel at the hearing. It follo ws that there was not an actual conflict
of interest in W oods’s case such that the Indiana courts were required to put off post-conviction review in order to hear W oods ' s claim s or risk running afoul of
the Constitution. W o ods' s disagreem en t with his PCR counsel over postconviction strategy simp ly does not rise to that level, pa rticularly in light of the

em inently reasonable m i tigation strategy undertaken by his P CR counsel.

Woods v. McBride , 430 F.3d at 827-28 (citations om itted). We agree with th is an alysis of th e federal courts.

Conclusion

Because W o ods has no t m e t his burd e n of estab l ishing a reas onable pos sibility that h e is entitled to p o st-conv iction relief on eithe r of the claim s he presents, we declin e to authorize th e filing of a successiv e petition. A date for execu ti on of the death sen t ence will be set by separate
order.

The Clerk is directed to send a copy of this order to counsel of record and to W e st Group for publication in the bound volum e s of this Court’s decisions.

Done at Indianapolis, Indiana, this 26 day of March, 2007.

/s/ Randall T. S h epard
Chief Justice of Indiana

Shepard, C.J., and Dicks on, Sullivan, Boehm

, and Rucker, JJ., concur.

7