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ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

Brent Westerfeld				Jeffrey Modisett

Indianapolis, Indiana			Attorney General of Indiana

							Arthur Thaddeus Perry

							Deputy Attorney General

							Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

HOWARD ALLEN,					)

							)

	Appellant (Defendant Below),	)

							)

		v.					) CAUSE NO. 49S00-9207-DP-566

							)

STATE OF INDIANA,				)

							)

	Appellee (Plaintiff Below).	)

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable John R. Barney, Jr., Judge

Cause No. CR87-194C

SHEPARD, Chief Justice.

	Howard Allen appeals his conviction and sentence of death for the robbery, Ind. Code § 35-42-5-1, murder, Ind. Code § 35-42-1-

1(1) and felony murder, Ind. Code § 35-42-1-1(2), of Ernestine 

Griffin, a woman of seventy-four.  We affirm Allen's conviction and

sentence on each count.

	Allen alleges seventeen errors.  These may be characterized as

raising eleven legal issues:

	(1)	That his privilege against self-incrimination was violated by

		(a) inadequate Miranda warnings;

		(b) improper custodial interrogation; and

		(c) failure to respect Allen's invocation of his

constitutional rights;

	(2)	That Allen was denied due process because the jury was allowed to hear allegedly perjured testimony;

	(3)	That hearsay statements uttered by the victim were improperly admitted at trial;

	(4)	That Allen was denied due process when the jury was allowed to view autopsy pictures;

	(5)	That Allen was denied due process when the trial court refused to give instructions

		(a) on theft as a lesser included offense; and

		(b) adequately guiding the jury at sentencing;

	(6)	That the trial court's failure to order sua sponte

	a competency examination denied Allen due process;

	(7)	That he was denied effective assistance of counsel 

	in both the guilt and penalty phases of his trial, 

	at his sentencing hearing, and in the appellate process;

	(8)	That Allen's right of confrontation was violated by 

	the trial judge's communication with the jury out of 

	his presence during the sentencing phase;

	(9)	That he was denied a speedy appeal;

	(10)	That Allen is mentally retarded and cannot be sentenced to death therefor; and

	(11)	That Allen's death sentence is unconstitutional because it is based on

		(a) improper victim-impact evidence; and

		(b) non-statutory aggravators.

	We approach these claims as follows.  Part I of this opinion

lays out the facts in two sections.  Section (A) recounts the

evidence and investigation, and Section (B) details procedural

history.  Part II addresses Allen's allegations of guilt-phase 

error, which are the first six issues listed.  Allen's sweeping

claim of ineffective assistance of counsel stands alone in Part III

because it concerns all stages of these proceedings.  Part IV then

addresses sentencing and post-trial procedural issues.

	I.  Facts

	A.  The Crimes and Investigation

	Ernestine Griffin lived alone on the northside of

Indianapolis.  During a robbery on July 14, 1987, she was killed in

her home through a combination of blunt trauma to her head and a

knife wound to her chest.  Property taken during the robbery

consisted of her wallet and its contents, a camera and case, and a

battery charger for the camera.

	The chain of events leading to Griffin's murder began the

preceding day.  That morning, Griffin entertained the questions of

a man who stated he was interested in purchasing a car.  The car

that interested him belonged to Dr. Victor Seaman, whose dental 

office was located next door.  Griffin and Dr. Seaman had been

neighbors for years and were close friends.

	Griffin could not answer the man's questions about the car,

but she advised him that she would forward his name and telephone

number to her neighbor.  The man wrote his name and home telephone

number on a check stub and left it with Griffin.  That note

contained the words, "Howard Allen/ 545-4109."  Some time later

that day, Griffin telephoned Dr. Seaman at his home and recorded

the potential buyer's name and number on Dr. Seaman's answering

machine.  When listening to Griffin's message, Dr. Seaman wrote a

note to himself containing the information, "545-4109/ after 6/

Howard Allen."

	That evening, Dr. Seaman tried to call Allen, but was unable

to reach him.  Instead, Dr. Seaman spoke with a woman who

identified herself as Allen's sister, April Allen.  He gave her a

message that included his name and home phone number.  April Allen

wrote the message on a pack of rolling papers, but ultimately

failed to deliver the message to Howard.  Police later obtained the

message during a warranted search of the Allen residence.

	At about 10:25 a.m. the next morning, July 14, the would-be

car buyer returned to Ms. Griffin's home.  Dr. Seaman was not in

his office, so Griffin telephoned him at home.  She told him that

"the same black man" returned.  She put the man on the line, and the two men talked briefly.  (R. at 2112-14.)  Dr. Seaman was too

busy to carry on a lengthy dialogue because he was preparing to

leave for a personal appointment.  He asked the would-be buyer if

he worked, and the man told him that he worked at Bluko Car Wash. 

A few minutes after that conversation ended, Griffin called Dr.

Seaman again because the man did not leave her home even though she

could not answer his questions.  She put the man on the line with

Dr. Seaman again, who admits he was quite abrupt.  Dr. Seaman

sharply told the man to quit bothering Griffin and to leave her

home immediately.

	Troubled by that conversation, Dr. Seaman called Griffin about

ten minutes later to see whether the man was still in her house. 

The telephone line was busy.  He called again, but the line

remained busy.  Dr. Seaman then went to his appointment and

returned home about two hours later.  He tried to telephone

Griffin, but every attempt resulted in a busy signal.  

	Dr. Seaman went to Griffin's home at about 12:45 p.m.  He

found her front door ajar.  He looked inside and saw Griffin's

bloody body on the living room floor.  A large knife protruded from

her chest and a bloody, broken toaster lay nearby.  Later

examination would reveal that she still wore her wedding ring, but

its stone was turned inward toward her palm.

	Dr. Seaman contacted the police.  He told them that earlier in

the morning he had spoken on the telephone with "a black man" who

was in Griffin's home inquiring about his car.  He also told the

officers that the man said he worked at the Bluko Car Wash, located

half a mile north on Keystone Avenue.  He said Griffin had

previously given him the name, "Howard Allen," and the man's home

telephone number.  Dr. Seaman also told the officers that he was

abrupt with the man in their two brief conversations and that

Griffin's telephone line had been busy every time he called since

then.

	Police secured the crime scene at about 2:45 p.m., and two

detectives went to the Bluko Car Wash, where they found Howard

Allen.  They asked him to go to the police station for questioning

about an incident near the car wash, but did not inform him of the

specific nature of the crime being investigated.  Allen agreed and

went with the officers to police headquarters.  Allen was

questioned concerning his whereabouts that morning, how he had

travelled to work, and if he had shopped for a car.  Allen told the

police that he watched cartoons at home, hitch-hiked to work, and

did not shop for a car because he was not licensed to drive.

	The police questioned Allen throughout the afternoon and early

evening at the police station.  Although he was there for nearly

six hours before his formal arrest, police officers testified that

he was free to leave.  Allen does not challenge this fact.

	Around 8:45 p.m, Detective Crooke learned that investigators

at Griffin's home found on a kitchen counter a slip of paper

recording Allen's name and number.  They arrested Allen formally at

this time, and gave him Miranda warnings orally and in writing.  At 8:50 p.m., Allen signed a waiver of rights form, and Detective

Crooke then interrogated him.  During this interrogation, Allen

suggested that he be given a lie detector test.  Detective Crooke 

summoned a polygraph specialist, and Allen ate dinner while they

waited.

	Detective Logsdon, the polygraph specialist, began examining 

Allen at about 11 p.m.  Logsdon gave Allen oral Miranda warnings, the adequacy of which is now in dispute.  Logsdon also gave Allen

a second copy of the written Miranda warnings and waiver form.  He instructed Allen to read the form; Allen then signed it.  The

interview lasted four hours.  Afterwards, Allen was asked to give

a formal statement, but declined because he was tired.

	Ten hours later, after Allen had been allowed to sleep,

Detective Wright gave him Miranda warnings and asked him if he would answer questions and give a statement.  Allen expressed a

desire to speak with his mother, which Wright accommodated.  After

speaking with his mother, Allen talked to Wright.  Allen admitted

to shopping for a car and to striking Griffin in the face, but not

to killing her.

	Meanwhile, forensic investigators continued their work; they

failed to find any fingerprints at Griffin's home, but they did

find the note with Allen's name and number on the kitchen counter. 

That countertop had been forcibly pulled away from the wall and a

drawer left open.  A broken and bloody toaster lay in the living

room near Griffin's body, the living room telephone was off the 

hook.  The bedcovers were turned back, and the slats in a closet

door were broken.  An empty camera box was on the floor.

	The police later questioned Allen's co-workers and boss at the

car wash.  In doing so, they discovered Griffin's camera, which

Allen had given to a co-worker to hold in his locker on the day

Griffin was murdered.  Shortly thereafter, a telephone lineman

found Griffin's wallet on a nearby roof.  It held no money.

	The clothes Allen wore at the time of his arrest were spotted

with blood.  Allen's blood type is type "O," but the victim's was

type "A."  Laboratory analysis of the blood stains on Allen's

clothes indicated a match with Griffin's blood type.

	B.  Procedural History

	Although this is a direct appeal, getting to this stage has

been anything but direct.  

	At sentencing, Allen indicated to the trial court that he was

dissatisfied with his attorney's performance.  He told the judge

about several persons he would have called as witnesses and

described the testimony he would have elicited.  Allen announced

his desire to make an ineffective assistance of counsel claim. 

This led his lead trial counsel, Alex Voils, to move to withdraw

his representation.  The trial court denied this motion and ordered

Voils to prepare a motion to correct errors within sixty days.

	Seeking to avoid the conflict Voils faced in drafting a motion

to correct errors that alleged his own ineffectiveness, the court

instructed him to prepare the motion without an ineffective

assistance claim.  The court assured Voils that it would permit him

to withdraw after filing the motion.  The court further assured

both Allen and Voils that upon Voils' withdrawal it would appoint

new counsel and would permit new counsel to file a belated motion

to correct errors for the principal purpose of asserting Allen's

ineffective assistance claim.  The court also stated that new

counsel would not be restricted to the ineffectiveness issue.  The

court indicated that it would then rule on both motions, in essence

"trying to get direct appeal, PC one, and PC two all done at one

time, if possible . . . ."  (R. at 3194.)

	Forty-nine days later, on October 18, 1988, and well within

the sixty days allowed by rule, Allen filed a pro se motion to correct errors.  This motion contained, inter alia, claims that his trial counsel was ineffective and that a conflict of interest

existed between him, Voils, and Judge Barney.  Allen also alleged

that Voils conducted himself unprofessionally due to racial bias

against Allen.  In a January 1989 hearing on the pro se motion, Voils was asked in open court about the status of the motion to

correct errors the court had ordered him to prepare.  He said the

motion was "substantially complete" but that he refrained from

filing it because of "the nature of the allegations contained in

Defendant Allen's pro se Motion to Correct Errors...."  (R. at 3204.)  On this representation, the trial court allowed Voils to

withdraw.  The court then continued the case until it would appoint

new counsel.

	On March 27, 1989, Allen filed another pro se motion, this one captioned as a "Belated Supplemental Motion to Correct Errors."  A

hearing was not held, and the motion was denied nine months later

in January, 1990.  From this point, the proceedings languished for

more than two years.  The reasons for this delay are not recorded. 

	On March 1, 1992, the trial court appointed David Sexson and

Stephen Sherron to represent Allen.  Sexson was Voils' co-counsel

at trial.  Sherron filed a praecipe and initiated the appeal on

March 18.  Despite the filing of the praecipe, the court reporter,

Judith Hatfield, did not prepare and transmit the record of

proceedings to Allen's attorneys.  This Court intervened, ordering 

Sexson and Sherron to appear with reporter Hatfield for a status

conference at the Supreme Court on September 10, 1992.

	After the status conference, this Court imposed a schedule for

record preparation and briefing.  We ordered compliance under the 

penalty of contempt, scheduling a contempt hearing for January 13,

1993.

	Reporter Hatfield failed to comply with the schedule.  After

a hearing, we found Hatfield guilty of contempt.  She was fined

$500 and sentenced to seven days incarceration.  In the Matter of Hatfield, 607 N.E.2d 384 (Ind. 1993).  The record finally was transmitted to this Court on March 25, 1993.

	Allen's attorneys received two extensions of time for

preparation of his brief.  A third petition for an extension of

time was filed on September 3, 1993.  We granted the extension, but

under the penalty of contempt for attorney Sexson if this deadline

was not observed.  The brief was timely filed on October 25, 1993. 

It raised five issues in twenty-one pages, an extraordinarily thin

product in capital defense practice.  The State's brief was filed

on January  31, 1994, and oral argument was scheduled for March 1. 

Then this case took another unusual turn.

	On February 15, 1994, the Marion County Public Defender Board,

by Chief Public Defender Fran Hardy, filed a petition asserting 	0that the brief submitted by Sexson and Sherron was woefully

inadequate.  She requested the brief be withdrawn without prejudice

and the case remanded for purpose of removing Sexson and Sherron

and  appointing  new appellate counsel.  Seven days later, we

granted the petition, striking Allen's brief and removing Sexson1 and Sherron.  The Court canceled oral argument and ordered the Board, Chief Public Defender Hardy, and the Associate Presiding

Judge of the Marion Superior Court, Criminal Division, to confer

and identify suitable replacement counsel.  The Court also set a

five month deadline for Allen's brief so that replacement counsel

would know the schedule to which the case would be kept before

accepting Allen's representation.

	The record of proceedings was released to Allen's present

attorney, Brent Westerfeld, two days later.  After he reviewed it,

the trial court nominated him to represent Allen.  He indicated his

willingness to accept the case on March 7.  We approved his

appointment the next day.

	Four months later, Westerfeld filed a petition for leave to

file a belated motion to correct errors.  The petition, filed on

July 12, also requested the appointment of a new trial judge on

remand.  We denied the petition, but specifically permitted Allen

to raise and argue in his appellate brief all issues which he would 

have included in a belated motion to correct errors.  Both sides

ultimately briefed the case, and we heard oral argument.

	II.  Allen's Guilt-Innocence Phase Claims

	A.  Fifth Amendment Claims

	Allen claims that the State deprived him of his Fifth

Amendment privilege against self-incrimination by violating his

"Miranda rights" through trickery, deception, coercion, and false promises during his custodial interrogation at the police station

between 11 p.m., July 14, and 3 a.m., July 15.  Therefore, Allen

argues, certain inculpatory statements he made during this

interrogation should not have been admitted into evidence.2  The inculpatory nature of Allen's statements is that he was in

Griffin's home, that he talked to "the doctor" (Dr. Seaman) on the

telephone, and that he struck Griffin in the face. 

	Allen did not object at trial to police testimony regarding

statements he made during custodial interrogation and thus failed

to preserve the issues for appeal.  Allen argues that the alleged

errors were more than mere infractions of constitutional dictates; he claims they amounted to fundamental error and violations of due

process.  Because he bases a significant part of his ineffective

assistance of counsel claims on the failure of his trial attorneys

to object and because of our concern for due process, we address

these claims as though properly before this Court.3

	The Fifth Amendment provides that "No person . . . shall be

compelled in any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due process of

law. . . ."  U.S. Const. amend V.  Cognizant of the matrix of

values safeguarded by the Fifth Amendment, the U.S. Supreme Court

in Miranda v. Arizona, 384 U.S. 436 (1966), announced broad prophylactic measures to protect citizens interrogated while in 

custody.  Miranda requires defendants to be adequately informed of their right to remain silent, that their statements could be used

against them at trial, of their right to an attorney, and that the

state will appoint an attorney for the defendant if he cannot

afford one.  Id.  The purpose of requiring the Miranda warnings before custodial interrogation is to combat state-sanctioned

coercion.  A suspect's waiver of this valuable constitutional

privilege, therefore, must be voluntary, meaning that it is freely

given with knowledge and understanding of the underlying rights and privileges.4  Although the result in Miranda is grounded in the Fifth Amendment privilege against state-compelled self-

incrimination and the Sixth Amendment right to counsel, it is well-

settled that the specific dictates promulgated in that opinion are

not constitutionally mandated.  Miranda, 384 U.S. at 478-9; Duckworth v. Eagan, 492 U.S. 195, 209 (1989) (O'Connor, J., concurring).  

	After three decades of experience with Miranda, interrogating police officers commonly advise accused persons of their

constitutional rights orally, and request suspects to sign pre-

printed waiver of rights forms before initiating interrogation. 

The voluntariness of a person's waiver of rights is judged by the

totality of the circumstances, Light v. State, 547 N.E.2d 1073 (Ind. 1989), and a signed waiver form is one item of evidence

showing that the accused was aware of and understood his rights. 

Thus, when challenged, the State may need to show additional evidence tending to prove that the accused's waiver and decision to

speak were voluntary.5

	Allen bases his claim on four arguments:

	(A)	that Miranda warnings were inadequate;

	(B)	that his waiver of rights was not voluntary;

	(C)	that interrogating officers failed to respect Allen's invocation of his right both to remain silent and to the

presence of counsel during interrogation; and

	(D)	that his incriminating statements were a product of police coercion and deception.

Allen's fourth argument essentially duplicates his second, so we

address them as one.

	(1)  Adequacy of Miranda Advisement

	Waiver of either the privilege against self-incrimination or

the right to counsel cannot be presumed when police interrogate a

person who is in custody without first advising him of his rights

per Miranda; all evidence derived from the accused's subsequent statements must be excluded from the prosecution's case-in-chief. 

Miranda, 384 U.S. at 479.  Thus, failure to warn the suspect of his rights renders all of his subsequent remarks while in custody 

involuntary per se, but properly administered warnings permit a

trial court to find that all subsequent statements were voluntary. 

	Allen does not claim he was unwarned.  He claims instead that

the warnings he received immediately before the polygraph interview 

make his case "glaringly similar" to Dickerson v. State, 257 Ind. 562, 276 N.E.2d 845 (1972).  Dickerson, however, dealt with a defendant's involuntary waiver of rights, not the inadequacy of the

warnings he received.  Id. at 849-50.  The adequacy of Miranda warnings is a threshold matter; the voluntariness of his waiver

follows.  Allen's claim that Miranda advisements were inadequate requires only that the State prove the warnings were given and that

they were sufficiently clear.

	The record shows that Allen was first questioned by police

officers at 2:45 p.m. and taken to the police station fifteen

minutes later, where he remained until he was placed under arrest

at 8:45 p.m.  At that time, Detective Crooke told Allen that a note

containing his name and telephone number6 was found in Griffin's home and that Allen was now accused of her murder.  Detective

Crooke then read Allen the Miranda warnings, gave him a preprinted waiver form, asked Allen if he understood his rights, and asked him

to sign the form if he was willing to waive his rights.  Allen

signed the waiver form, and interrogation commenced anew.

	During this interrogation, Detective Crooke told Allen that he

"didn't feel that he was being truthful."  (R. at 2251.)  At some

point, Allen suggested he take a lie detector test.  A polygraph

specialist, Detective Logsdon, was called while Allen ate dinner. 

At about 11 p.m. the polygraph interrogation commenced.  It was

transmitted into an adjacent room for Detective Crooke to observe,

and it was recorded on tape.

	Logsdon loosely reviewed Miranda warnings with Allen.  He embellished this explanation of Allen's rights by defaming half of

practicing lawyers and suggesting that remaining silent might hurt

him.  Logsdon gave Allen a second Miranda waiver form, which he signed, but Allen's claim rests on Logsdon's remarks at this

juncture.7

	Detective Logsdon's "explanation" was deplorable.  If it had

been the only warning to Allen, relief under Miranda would likely be appropriate.  

	We are not persuaded that earlier, proper warnings were

rendered inadequate by Logsdon's performance.  Allen does not

contest that he was properly advised of his Miranda rights at 8:45, the moment he was first accused.8  Allen, a seasoned criminal, told the officer that he understood his rights when so advised and,

without threats, promises, or force, signed his name to the waiver

form.  Just two hours later, he signed an identical waiver form

after again being orally advised and instructed to read the form. 

Despite Allen's protestations to the contrary, the record reveals

that Logsdon instructed Allen that the polygraph interview was

voluntary, that he could refuse to answer questions, and that he

could stop the interview at any time.  As a consequence, and in

spite of its defects, Logsdon's oral advisement does not nullify

the prior, proper advisement Allen received.  The warnings were

close in time, and Allen had already confirmed that he understood

his rights.  Logsdon's improper remarks may have affected Allen's

subsequent decision to waive his rights - a question of

voluntariness - but those remarks did not annul the proper written

and oral warnings Allen received.

(2)  Voluntariness of Statements

	Allen first signed a waiver form and answered detectives'

questions just before 9 p.m.  Shortly thereafter, Allen suggested 

he be interrogated while monitored by polygraph.  Allen does not

claim he was tricked or otherwise coerced into answering questions

during this period.

	Instead, Allen attacks the validity of his waiver of rights at

the outset of the polygraph interrogation and, as its "poisoned

fruit," all subsequent statements he made.  A waiver is an

intentional relinquishment or abandonment of a known right. 

Edwards v. Arizona, 451 U.S. 477 (1981).  Determination of whether a defendant's waiver of constitutional rights was voluntary is

reviewed case-by-case and depends on the unique facts and

circumstances of that case, including the defendant's background,

experience, and conduct.  Id.

	Allen claims that he was tricked or coerced into signing the

waiver of rights form at the polygraph interview.  This argument is

based on Dickerson v. State, where the defendant was asked to sign the waiver of rights form "if he understood it."  276 N.E.2d at

850.  In that case, the officer who asked for the signature failed

to give the defendant an oral advisement, to confirm the

defendant's understanding of his rights, or to ask the defendant if

he desired to waive his rights.  The manner in which the officer asked for the defendant's signature could therefore have deceived 

him into thinking that his signature indicated only his

comprehension of his rights, not that he was actually waiving them.

	Allen's case is distinguishable because he voluntarily waived

his rights subsequent to a proper advisement just two hours before. 

That first waiver was close in time and a significant link in the

chain of events leading to the challenged waiver.  He signed a

waiver form a second time, and he was told he did not have to do

anything.  These circumstances, taken together, negate the claim that Allen was tricked into relinquishing his rights, even if

Logsdon's remarks may have influenced Allen not to reclaim his

rights.  

	Allen also claims his waiver was involuntary because he did

not affirm his understanding of his rights.  We are not persuaded. 

After all, he signed the waiver document after Detective Logsdon

instructed him to read it.  Miranda does not require an officer to provide the accused with "the quantum of knowledge which an

attorney would require before rendering legal advice."  Armour v. State, 479 N.E.2d 1294, 1298-99 (Ind. 1985).  It is enough that Allen verbally confirmed his understanding of his rights.  That he

twice signed a document clearly spelling out his rights and

specifically stating that he understood the same is also evidence

that he waived them voluntarily.  Just as a signed waiver document

is not conclusive proof that the waiver was given knowingly and intelligently, freely and voluntarily, the defendant's signature

cannot be dismissed simply because he disavows it after he is

convicted.

	Allen's suggestion that he be polygraphed also points toward

a voluntary waiver.  His remark clearly propelled events forward. 

Allen's willingness to speak while being physically monitored is

clear, unrebutted evidence of the completeness of his waiver. 

Considering Allen's conduct, apparently normal mental capacity,9 and extensive criminal record,10 it is abundantly clear that Allen knew and waived his rights.

	Allen argues that his incriminating statements must be

suppressed because investigating officers allegedly failed to

notify him of the reason for his interrogation.  This argument was

squarely rejected by the U.S. Supreme Court in Colorado v. Spring, 479 U.S. 564 (1989).11  The constitutional issue does not concern the tactical wisdom of the defendant's choice to speak, but only

the defendant's voluntariness in choosing to speak. 

	(3)  Defendant's Invocation of Constitutional Rights

	Allen asserts that his Miranda rights were violated by police officers who ignored his invocation of the right to remain silent

and his demand for counsel.  Specifically, he claims that he

invoked his right to remain silent when he exclaimed, "Wait a

minute, hold it, hold it," (R. at 338), and that he invoked his

right to counsel when he asked to speak to his mother.

	In Michigan v. Mosley, 423 U.S. 96 (1975), the Court held that a confession obtained in an interrogation initiated some time after 

a suspect cut off earlier questioning did not violate Miranda.  Evidence obtained in this way may be admissible even though a

subsequent interview was initiated by an officer, so long as the

police scrupulously honor the defendant's right.  Id.  The Court reasoned that Miranda does not forever prohibit law enforcement officials from speaking to a suspect once she decides not to speak;

room is left for the officer to inquire whether the suspect has

changed her mind and decided to speak.  When an officer ceases

questioning at the time a suspect indicates she is not willing to

answer and, prior to any subsequent questioning, the suspect is

again advised of her rights, the suspect's rights have been

respected if she then decides to speak.  Id.

	Allen's exclamation, "hold it," was simply not an invocation

of the right to remain silent.  In context, it is readily apparent

that Allen's exclamation was nothing more than an instantaneous

reaction to learning that the polygraph indicated a lack of

truthfulness when he was questioned about the murder weapon.  (R.

at 334-38.)  Allen did not communicate by words or conduct a desire 

to cease answering questions.  We conclude that Allen did not

invoke his right to cut off questioning.

	A similar outcome befalls Allen's claim that the police denied

his right to counsel. The right to counsel during custodial

interrogation is more profound than the right not to speak and,

once invoked, it cannot be waived except upon the initiation of the

accused.  Edwards, 451 U.S. at 484-85.  The Edwards Court emphasized the inconsistency with Miranda that would attend a rule permitting law enforcement authorities, "at their insistence, to

reinterrogate an accused in custody if he has clearly asserted his right to counsel."  Id. at 485 (emphasis added).  

	Allen argues that he did not understand the meaning of the word "counsel" because Logsdon misled him.  He points to Logsdon's

improper remark that "counsel doesn't mean lawyer, it could be

pretty much anybody," (R. at 307), followed by Allen's requests to

speak to his mother.  Still, the totality of circumstances does not

show that Allen clearly asserted a desire for the advice or

presence of counsel.

	Examination of Logsdon's dialogue with Allen shows that Allen

was aware of his right to an attorney but showed no interest in

speaking to one.  It is readily apparent that Logsdon wanted Allen

not to change his mind about doing the polygraph interrogation, but

Logsdon did in fact talk to him about lawyers and the appointment

of an attorney in addition to making the "pretty much anybody"

remark.  Allen responded each time.  Logsdon then presented Allen

with a Miranda waiver form, suggested he read it, told him "[t]hat don't mean you have [to] do anything," and referred to the

advisement of rights.  (R. at 308.)  Allen signed it.  He never

demonstrated confusion about the meaning of "counsel" and  did not

show interest in the advice of counsel.

	Some fifteen to thirty minutes later, Allen first requested to

speak to his mother.  He said he had wanted to talk to her since

early in the evening to "let her know what's happenin[g]."  (R. at

323.)  Logsdon responded that he would ask other officers to

contact her and then he left the room.  When he returned, he told Allen he had spoken with an officer who had gone to his mother's

home and talked to her.  Allen would not mention his mother again

for half an hour.  On the basis of this exchange, we conclude that

Allen did not clearly assert his right to counsel when he asked to

speak with his mother.

	We reach the same conclusion with respect to Allen's second

and third requests to speak to his mother.  No reason exists for

this Court to find that Allen was actually invoking his

constitutional rights because there is no evidence of him

conceptually linking "mother" with counsel, attorney, lawyer, or

rights.  Allen asked to speak to his mother only when his story

began collapsing under the weight of negative polygraph results.  

	(4)  A Claimed Violation of Doyle

	The essence of the Supreme Court's holding in Doyle v. Ohio, 426 U.S. 610 (1976), is that a defendant's silence after he has

been advised of his rights cannot be used to obtain a conviction by

implying that the silence is rooted in guilty knowledge.  

	Allen talked for nearly six hours, including four after his

second warning.  The police asked him to give a written statement,

but he declined.  His rights were respected, and no misuse was made

of this fact.  The next afternoon he was advised of his rights

again and gave a voluntary statement.  He simply was not silent.  Without the defendant's silence being used to suggest that he

"silently confessed," there is no Doyle violation.

	B.  Did the Prosecutor Use Perjured Testimony?

	Allen asserts the prosecutor used perjured testimony of police

witnesses and relied on that testimony in closing argument.  The

alleged perjury occurred when officers testified they had not told

Allen specific facts regarding the crimes against Griffin.  Allen

says they had given him some specific facts.  Thus, when the

prosecutor in closing argument asserted that the only way Allen

knew about the murder was that he was the perpetrator, the

allegedly false police testimony may have improperly bolstered the

weight of Allen's incriminating statements and thus "had an effect

on the outcome of the trial."  Napue v. Illinois, 360 U.S. 264, 272 (1959).

	Allen provides no evidence showing the particular testimony he

challenges is false.  Absent such a showing, this claim lacks

substance.  The challenged portion of the prosecutor's summation

refers to conversations police officers had with Allen before his interrogation by Logsdon.  Accordingly, the prosecutor's closing

argument was based on legitimate evidence.

	C.  A Hearsay Claim

	Allen contends the victim's statements to Dr. Seaman were

hearsay and should have been excluded from evidence.  Allen's trial

counsel, however, did not object when Dr. Seaman testified. 

Failure to object at trial waives any claim of error and allows

otherwise inadmissible hearsay evidence to be considered for

substantive purposes and to establish a material fact at issue. 

Banks v. State, 567 N.E.2d 1126 (Ind. 1991).  Nevertheless, we address Allen's claim on the merits because the decision not to

object impacts his ineffective assistance of counsel claim.

	Hearsay is an out-of-court statement offered at trial to prove

the truth of the matter asserted.  Blue v. Brooks, 261 Ind. 338,  303 N.E.2d 269 (1973).  Hearsay may not be admitted as substantive

evidence unless it comes within one of the recognized exceptions to

the hearsay rule.

	The substance of Griffin's remarks to Dr. Seaman was that the

man who shopped for his car on July 13 wrote his name and telephone

number on a piece of paper that he left with her.  Allen contends this permits the trier of fact to infer that Allen was present and wrote the note found in Griffin's home.  The State responds that

the remarks were not hearsay because they were not offered for the

purpose of proving that Allen wrote the note or that Allen was

present, but for the purpose of explaining the course of Dr. Seaman's conduct.  This conduct included writing Allen's telephone

number on his own note, calling Allen's residence that evening,

and, ultimately, directing the police to Allen's place of

employment.

	Allen's claim is plausible but unconvincing.  We conclude that

Griffin's statements were not hearsay and would properly be

admitted to show their effect on Dr. Seaman and to explain his

conduct.  Griffin's comment that a "black man" wrote the note

simply does not prove that Allen was the writer.  In contrast, the

prosecutor followed Dr. Seaman's testimony with a line of questions

that laid an evidentiary foundation for the admission of Dr.

Seaman's handwritten note containing Allen's name and home

telephone number and his testimony that he called that number. 

This line of questioning demonstrates that Griffin's statement was

used for the purpose stated and thus was not hearsay.  We cannot

say that, had an objection been lodged and overruled, the ruling

would have been an abuse of discretion.  See Boyd v. State, 494 N.E.2d 284 (Ind. 1986), cert. denied 479 U.S. 1046 (1987).12

		D.  Autopsy Pictures

	Allen claims that the admission into evidence, without

objection, of several slides of Griffin's autopsy was cumulative

and gruesome, and amounted to fundamental error.13  Allen particularly objected to a slide that displayed a contusion to

Griffin's skull by way of the coroner peeling back part of the

scalp.  (Exhibit 94-10.)

	The admission of the slides was not an error, much less

fundamental error.  All the pictures depicted injuries suffered by

the victim and each could be described by a witness via oral

testimony, thus meeting the general criteria of admissibility for

photographs.  Phillips v. State, 550 N.E.2d 1290 (Ind. 1990).  Admission of pictures of a homicide victim is not reversible error

if the pictures are relevant and the relevance is not outweighed by

a tendency to inflame or impassion the jury against the defense.  Webster v. State, 426 N.E.2d 1295 (Ind. 1981).  Although the slides are close-ups of Griffin's injuries, none of the pictures at issue

are especially inflammatory.  It is not immediately apparent 

that Allen was (or would have been) deprived of a fair trial by

their admission.

	As for the particular slide in which Griffin's scalp is peeled

back, Exhibit 94-10, we agree with Allen it was erroneously

admitted.  Although the State argues the slide showed a potentially

mortal wound otherwise obscured by the victim's hair, autopsy

photographs are generally inadmissible if they show the body in an

altered condition.  Loy v. State, 436 N.E.2d 1125, 1128 (Ind. 1982) ("Such a display may impute the handiwork of the physician to the

accused assailant and thereby render the defendant responsible in

the minds of the jurors for the cuts, incisions, and indignity of

an autopsy.").  An objection to this slide's admission probably

would have been sustained because the relevant fact substantiated

by the slide was cumulative of other evidence of Griffin's cause of

death.  Still, the slide's admission was not fundamental error. 

While the slide reveals a deep wound and is certainly unpleasant to

view, its admission was harmless in view of the overwhelming

evidence properly admitted to prove the cause of death.

	E.  Jury Instructions

	Allen claims he was denied due process by the trial court's

refusal to instruct on the lesser included offense of theft on

Count III, the robbery charge.  Although a guilt-phase issue, the gravity of this claim is its potential effect on sentencing:  a

verdict of guilty for theft instead of robbery would have prevented

the State from proving the charged death penalty aggravator,

intentional killing during the commission of a robbery.  Ind. Code

Ann. § 35-50-2-9(b)(1) (West 1986).  

	Indiana courts utilize a three-step process for determining

whether an instruction on a lesser included offense must be given. 

Wright v. State, 658 N.E.2d 563 (Ind. 1995).  First, we read the language of the charging document to determine whether the alleged

lesser included offense is inherently included in the crime charged.  Id. at 566.  If the offense is inherently included in the  greater, then the trial court proceeds to step three.  But, if the

court determines that it is not inherently included, then the court

must take the second step of comparing the statute that defines the

alleged lesser included offense with the charging instrument in

order to determine if the lesser offense is factually included in

the charge.  Id. at 567.  Finally, once the trial court has determined that an lesser offense is included either inherently or

factually, the court must look at the evidence presented by both

parties to decide whether "there is a serious evidentiary dispute

about the element or elements distinguishing the greater from the

lesser offense" such that a jury could conclude that the lesser included offense was committed but not the greater.  Id.  If the answer to this question is yes, then instruction on the lesser

included offense must be given, and failure to do so is reversible error.  Id.; Gordon v. State, 499 N.E.2d 228 (Ind. 1986).  This rule has been recognized as constitutional by the Supreme Court.  Beck v. Alabama, 447 U.S. 625, 636 n.12 (1980) (citing with approval Pruitt v. State, 269 Ind. 559, 382 N.E.2d 150 (1978) (test for whether refusal of instruction on lesser included offense is

error is whether evidence was adduced at trial to which the lesser

included offense instruction was applicable)).  Nevertheless, Allen

would have us alter the rule depending on either the circumstantial

or direct nature of the evidence or whether, without regard to the

evidence, the State has negated every theory of defense conceived

by counsel.  We decline.

	Applying the process outlined above, we conclude that the

trial court was correct in denying Allen's request for an

instruction on theft.  Theft is a lesser included offense of

robbery, Landers v. State, 464 N.E.2d 912 (Ind. 1984), but there is no evidence of simple theft in the record.  In fact, the evidence 

points the other way.  The crime scene is a picture of violence. 

The victim lies with a knife in her chest.  A bloody and broken

toaster lies near her head.  There is damage to a closet door, a

kitchen counter, and so on.  A camera box sits without the camera. 

All in all, plenty of force and evidence of missing property.

	Against this evidence, Allen's counsel suggests, for instance, that perhaps the victim had given Allen the camera, or that he may

have gained it on some other day.  This speculation does not create a "serious evidentiary dispute."  The trial court correctly refused

to instruct on theft.

	F.  Should a Competency Exam Have Been Ordered 

Sua Sponte?

	Allen correctly states that a trial court is obligated to

conduct a psychiatric examination and competency hearing "where

'reasonable grounds' exist for believing the defendant is

incompetent to stand trial."  (Appellant's Br. at 114 (citing Ind.

Code § 35-36-3-1)).  We review a trial court's decisions on this

point for abuse of discretion.  Walker v. State, 621 N.E.2d 627 (Ind. 1993).  We can see no reason why the trial court had the duty

to act of its own accord as Allen now claims.  

	Allen contends that notice of the insanity defense filed by

his first attorney put the court on notice of his incompetence to

stand trial.  He maintains that the mere fact that this notice was

filed obligated the trial court to order sua sponte a psychiatric evaluation.  Allen argues this in spite of the fact that his

appointed trial counsel withdrew both the notice and the motion for

psychiatric examination (which had been granted) when abandoning

the insanity defense.  Essentially, present counsel asks us to

oblige trial courts to second-guess defense counsel's strategy when

the insanity defense is abandoned.  We will not.  A trial court is

permitted, if not expected, to rely on the strategic judgment of counsel.  In any event, a request for psychiatric examination is

not evidence of incompetency.  Cook v. State, 258 Ind. 667, 284 N.E.2d 81 (1972).

	There is no record of police awareness of Allen's alleged

mental incompetence prior to or during interrogation.  Likewise,

there was no evidence tending to give the trial court reason to

suspect that Allen was mentally retarded.  We find no error.

	III.  Effective Assistance of Counsel Claims

	Allen makes a plethora of arguments in support of his claim

that he received ineffective assistance of counsel.  These

arguments attack his representation in the guilt and penalty phases

of his trial and on appeal.  Accordingly, we set out the standard 

for judging ineffectiveness claims first and then address Allen's

arguments in chronological order.

	The standard governing claims of ineffective assistance of

counsel was set out by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).  The Strickland test requires a defendant to show that his or her counsel's representation both

fell below an objective standard of reasonableness, id. at 688, and  prejudiced a defendant's case such that confidence in its result is

undermined.  Id. at 694.  Counsel is presumed effective.  Thus, the burden of proving counsel's ineffectiveness rests squarely on the

shoulders of the claimant.  

A.  Effectiveness of Counsel During Guilt Phase

	Allen asserts that his trial counsel committed errors which

rendered his assistance constitutionally defective.  These  are

counsel's failures to:  file a motion to suppress Allen's

incriminating statements, object to testimony regarding Allen's

right to cut off questioning, object to testimony regarding the

victim's hearsay statements, request a competency examination for

Allen, tender an instruction on theft as a lesser included offense

of robbery, and develop and present evidence of mental retardation. 

The only colorable claim  not addressed elsewhere in this opinion

involves the lack of a motion to suppress.  

	Although the strategic decision not to file a motion to

suppress Allen's custodial interrogation might be considered an

unusual defense practice, especially in light of Allen's colorable

claim based on Detective Logsdon's terrible Miranda advisement, the fact that the motion was not made does not render the whole of

counsel representation ineffective, nor does it prove that the

verdict was unreliable.  

	Allen relies on Pemberton v. State, 560 N.E.2d 524 (Ind. 1990), in which we reversed a conviction on the basis of

ineffective assistance because counsel failed to preserve an issue

of constitutional magnitude for appeal.  The issue disputed in

Pemberton was an improperly suggestive "show-up" of the two defendants, which was admitted as evidence of out-of-court

identification.  The issue was fully aired in a hearing on a pre-

trial motion to suppress, but counsel failed to lodge a

contemporaneous objection at trial.  Having already focused the

court on the identification issue and invested so much energy in

battle over it, the failure to object at trial was inexplicable. 

We held counsel's performance deficient because the omission led to 

waiver of an issue which might have directly affected the trial's

outcome, Strickland's prejudice prong.

	This case does not square with Pemberton.  Trial counsel's decision to file a motion in limine instead of a motion to suppress

could well have rested on strategic reasons. Allen's present counsel calls the decision to rely on a motion in limine

"baffling,"  but he  tenders no argument explaining why the choice

of tactics was deficient and prejudicial.  There was strong

evidence other than Allen's own admissions that placed him in

Griffin's home at the time of her murder, including evidence of

Griffin's blood on Allen's clothing, so defense counsel argued that

Allen was not guilty of murder because he was overcome by sudden

heat when the victim insulted him with racial epithets and threatened him with a knife.  This strategy was not unreasonable,

and it was entirely consistent with Allen's admissions.  Defense

counsel may have calculated that the risk of having the entire

polygraph interrogation placed before the jury was too great (in

case a motion to suppress was denied) and that control over the use

of this evidence was more valuable than its unfettered admission.14

	Most important, however, is that Allen's statements were the

source of counsel's argument imploring the jury to consider

convicting him on just the lesser included charge of voluntary

manslaughter.  If this strategy had succeeded, it would have spared

Allen the death sentence.  The strategic decision not to file a

motion to suppress Allen's statements therefore did not deprive

Allen of fair adversarial testing of the evidence.  In the absence

of solid appellate argument showing the folly of such strategy, we

opine no further about the soundness of the single decision not to

file a motion to suppress.  Isolated poor strategy, inexperience,

or bad tactics do not necessarily amount to ineffectiveness of

counsel.  Pemberton, 560 N.E.2d at 526.

	Assuming for the sake of argument that counsel's failure to

file a motion to suppress is performance so deficient as to meet

the first prong of Strickland, we do not see prejudice sufficient to satisfy the second prong of that test.  The case against Allen was so strong there is not a reasonable probability that the

verdict might have been different but for counsel's alleged

"error."

	As for Allen's claims that defense counsel erred by not

objecting to the admission of testimony about the exercise of his

right to cut off questioning, counsel's failure to object was not

deficient because there was no error to which he could take

exception.  See supra Parts II(A)(3).  Counsel's failure to object to the introduction of Griffin's out-of-court remarks to Dr. Seaman

and the omission of tendering in writing a jury instruction on

theft are unavailing for the same reason.  See supra Part II(C) and Part II(E).

	Allen's claims that counsel was ineffective during the guilt

phase because he failed to request a competency hearing and

introduce evidence of mental retardation are similarly groundless. 

See supra Part II(F).  Allen's competency was never in question, and, judging by the eight page dialogue he had with the trial judge

at the sentencing hearing, Allen was fully aware of the nature of

the proceedings and capable of assisting in his defense.  (See R. at 3173-81.)  The fact that defense counsel failed to perceive 

incompetence or mental retardation in his client, when his client

gave him no reason to so perceive, is not ineffective assistance.

	To summarize, the reliability of Allen's convictions for

robbery and felony murder were not undermined by his attorney's 

representation.  The convictions flowed from the evidence, which

was tested by cross-examination and interpreted for the jury in the

argument of counsel.  Allen was not denied his right to effective

assistance of counsel during the guilt phase of his trial.

	B. Effectiveness of Counsel During Penalty Phase

	Allen argues four grounds to support his claim of ineffective

assistance of counsel at the penalty phase.  These are counsel's

failures to:  present evidence to rebut the charged statutory

aggravator, present coherent closing argument, develop and present

mitigatory evidence, and object to admission of allegedly false

evidence or put on rebuttal evidence at the sentencing hearing.

	(1)  Failure to Present Rebuttal Evidence

	By stipulation, the guilt phase evidence was incorporated into

the penalty phase hearing, an ordinary procedure in capital cases. 

This included evidence of Griffin's autopsy, which showed that she

had been struck forcefully about the head before and after being stabbed to death.  Griffin was seventy-four years old and partially

disabled because of childhood polio.  The first blows knocked her

to the floor.  Laying prone, unable to right or defend herself, a

large knife taken from her kitchen was plunged into her chest. 

Finally, she was struck about the head with a toaster.  The

physical evidence shows there can be no doubt that Ernestine

Griffin was intentionally killed.

	There was little evidence defense counsel could cite to rebut

a finding of intentional killing, but he certainly did not concede

proof of the statutory aggravator.  Rather, he made the best effort

he could by attacking the credibility of the evidence, a tactic

which did not require introduction of new evidence.  His decision

to attack the existing evidence was all he could do.  It was

objectively reasonable and not ineffective under Strickland.

	2.  Incoherent Argument Claim

	Appellate counsel's argument that Alex Voils' closing argument

to the jury was incoherent is nothing more than a personal attack. 

Voils' argument was indeed coherent and was directed at what he

perceived to be the weakest link in the State's case.  On its face,

this claim lacks merit.  Worse yet, it is the type of argument

likely to have a chilling effect on the willingness of members of

the defense bar to try capital cases.  See Strickland, 466 U.S. at 690 (warning that abuse of the ineffectiveness challenge could "dampen the ardor . . . of defense counsel, discourage the

acceptance of assigned cases, and undermine the trust between

attorney and client.")

	3.  Failure to Develop and Present Mitigating Evidence

	Appellate counsel attempts to shoehorn a claim that Allen is

mentally retarded into this direct appeal by asserting that trial

counsel did not investigate.  See infra Part IV(C).  As we explain later, the trial court's examination of present counsel's

submissions on remand suggest that the evidence trial counsel

offered covered the territory with some accuracy.

4.  Counsel's Performance at the Sentencing Hearing

	Allen makes a two-pronged argument urging this Court to vacate

his sentence and remand for a new sentencing hearing based on his

counsel's performance at the final sentencing hearing.  The grounds

of this argument are that counsel allowed the trial court to

consider false evidence by failing to object or to rebut.  The

allegedly false evidence included, inter alia, documentation that Allen possessed normal intelligence, completed the eleventh grade,

and came from a nurturing and loving family.  These statements were

contained in the pre-sentence report, which contained reports from

Allen's prior convictions and parole applications.

	The State counters that the evidence was neither false nor

unreliable and that Allen fails to show the falsity of the

challenged evidence.  Essentially, the State responds that no error

was committed under Johnson v. Mississippi, 486 U.S. 578 (1988)(death sentence vacated when a charged aggravator was

premised on materially inaccurate, prejudicial evidence), and thus

the sentence must stand.

	Neither party persuades us.  The State correctly points out

that this case is not similar to Johnson,15 but it misses the crux of Allen's argument.  Nevertheless, we conclude that Allen was not

deprived of effective assistance of counsel by his attorney's

response to the challenged evidence.  

	The gravamen of Allen's claim is that his trial attorney

"abandoned" him by not challenging the allegedly untrue evidence. 

There was no reason for defense counsel or the trial court to doubt

the veracity of the evidence Allen now challenges.  All of the

statements regarding Allen's I.Q. and level of education were

contained in official documents pertaining to Allen's prior

offenses and applications for parole.16  These documents are entitled to a high degree of credibility.  If a factfinder is to

discredit such evidence, then the claimant must offer some credible

evidence tending to show the unreliability of the challenged

statements.17  In the absence of evidence of misconduct or error in the administration of tests or the preparation of documents, trial

counsel is not ineffective for not attempting a futile endeavor.

	Likewise, trial counsel had no reason to doubt the veracity of

evidence about Allen's home and family life contained in the same

official documents.  Present counsel writes, "Trial counsel did not

inform the court the evidence before it was false and, had counsel

known the evidence was false, there exists no sound strategy reason

for failing to inform the court of the 'truth'."  (Appellant's

Br.

at 145.)  This argument, however, runs contrary to the  testimony 

A Allen's sister April18 and his mother Ruby19 provided during the sentencing hearing before the judge. It is clear that Allen was not

denied effective assistance of counsel because of a failure to

object to the admission of statements found in government documents 

which were identical in content to those of his own mother and

sister.20

C.  Abandonment by Counsel in the Appellate Process

	Allen argues that he was denied the assistance of counsel at

the "critical motion to correct errors stage."  This is an attempt

to fit his case under United States v. Cronic, 466 U.S. 648 (1984), and thereby avoid Strickland analysis.  In Cronic, the Supreme Court indicated it had uniformly found constitutional error without any showing of prejudice when a defendant was denied the assistance of counsel at a critical stage of the proceedings. Id. at 659 n. 25.  If the motion to correct errors is a "critical stage of the

proceedings," then Allen's claim has merit.

	The motion to correct errors was once a critical stage in

Indiana practice because of its jurisdictional role in marshalling

the issues for appeal.  It is, however, no longer critical for this

purpose.  Thus, a claim under Cronic cannot be sustained when a defendant is denied counsel, either actually or constructively, at

the motion to correct errors stage.

	Allen's claim is unusual in that it straddles a rule change: 

the motion to correct errors was still a jurisdictional stage of

the proceedings at the time of his trial.  Since then, we have

amended Trial Rule 59 so that the motion to correct errors is no

longer  a condition precedent to appellate jurisdiction.  We took

stock of the rule change and immunized Allen from procedural

default by specifically affirming Allen's right to raise any and

all issues on appeal when we removed David Sexson and appointed new

counsel and struck Sexson's brief.  As a result, even though the

motion to correct errors was a critical stage at the time of

Allen's conviction, the prejudice owing to any lack of

representation has been removed.21

IV.  Penalty Phase Claims

	Allen asserts that during the sentencing phase of his trial he

was denied the right of confrontation by the trial judge's

communication with the jury out of his presence, he was denied a

speedy appeal, he is mentally retarded and therefore cannot be

sentenced to death and that his death sentence is unconstitutional 

because it is based on non-statutory aggravators and improper

evidence of the victim's character.

	A.  Right of Confrontation With the Jury

	Allen claims he is entitled to a new penalty phase hearing

because his right of confrontation was violated when the trial

judge engaged in ex parte communications with the jury during deliberation.  As a technical matter, he is correct in noting the

error.  Brown v. State, 543 N.E.2d 1120 (Ind. 1989).  The error did not prejudice Allen's substantial rights, however, and therefore

does not entitle Allen to a new penalty hearing.

	The two ex parte communications Allen cites were responses from the judge to two written questions from the jury:

	We have not complete (sic) our deliberations yet, but we would like to know what happens if we find it impossible

to reach a unanimous decision.

And,

	We do not feel we can reach a decision on a

recommendation right now - is it possible to stop tonight

and resume tomorrow?

The trial judge responded in writing:

	Please reread all the instructions.  Thank you.

And,

We have dinner arranged for you this evening

for around 7:30 pm.  

In response to your question:  it is possible

to stop tonight and resume tomorrow.

(R. at 216-17.)

	The Indiana Constitution, art. I, § 13, guarantees a criminal

defendant the right to be present at all stages of the proceedings

by protecting an accused's rights to a public trial by an impartial

jury.  This right may be waived by the defendant.  Harris v. State, 249 Ind. 681, 231 N.E.2d 800 (1967).  A defendant's absence from

any stage of the proceedings gives rise to a presumption that

prejudicial error has occurred; the burden is on the State to rebut 

the presumption.  James v. State, 613 N.E.2d 15 (Ind. 1993).

	To rebut, the State points to Hogan v. State, 274 Ind. 119, 409 N.E.2d 588 (1980).  In Hogan, we affirmed a conviction by holding a judge's face-to-face ex parte order to the jury to "read the instructions" was harmless error.  Insofar as Judge Barney's

communication to the jury was done in a one-sentence note, and thus 

more attenuated than face-to-face communication, we conclude this

was harmless error.22

	Regarding the second communication, we consider it frivolous

to claim prejudice from the trial judge's communication to the jury about dinner and breaking for the night.

	B.  Speedy Appeal

	Allen contends that he was denied due process because of 

excessive delay in his appeal.  He maintains that a criminal

defendant's appeal of right is rendered meaningless if state

procedures make it difficult or impossible to be heard.  See Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994) ("The fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.") (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)) 

	A right to a speedy appeal is not contemplated within the

Sixth Amendment.  Gajdos v. State, 462 N.E.2d 1017 (Ind. 1984); accord United States v. Alston, 412 A.2d 351, 355 n.7 (D.C. 1980).  A criminal defendant must be afforded equal protection and due

process of law, however, so appellate delay is not "beyond the

scrutiny of the federal Constitution."23  Gajdos, 462 N.E.2d at 1023.  Two tests have emerged for assessing speedy appeal claims. 

The "majority rule," requested by petitioner, is a slightly

modified version of the four-pronged speedy trial standard adopted

in Barker v. Wingo, 407 U.S. 514 (1972); the "minority rule" is a two-step analysis focusing on prejudice, if any, to the defendant

caused by the government's delay.  Alston, 412 A.2d at 359.  The tests are similar in that both emphasize the importance of

prejudice to substantial rights.  The principal differences between

the tests are that the Alston test does not consider whether the defendant asserted her right to a timely appeal, nor does it weigh

the length of delay for any reason other than its prejudicial

effect.  Id.  The majority of federal circuits that have addressed this issue have utilized the Barker test, as has our own Court of Appeals.  Wright v. State, 591 N.E.2d 1053 (Ind. Ct. App. 1992).  Allen urges this Court do the same. 

	We conclude that Allen does not prevail even under the Barker test he requests.  The Barker test's four prongs are (1) the length of delay, (2) the reason for the delay, (3) the petitioner's

assertion of his right to timely adjudication of his appeal, and

(4) the prejudice attaching to the defendant as a result of

excessive delay.  Barker, 407 U.S. at 530.  Three types of prejudice have been recognized within the fourth prong: oppressive

incarceration, constitutionally cognizable anxiety pending the

appeal's disposition, and impairment of the defendant's substantial

rights either on appeal or in a new trial.  Harris v. Champion, 15 F.3d 1538, 1547 (10th Cir. 1994).  Because the inquiry examines the

legal process afforded the claimant, each case turns on its

peculiar facts, and the claimant must make a particularized showing

of prejudice caused by any excessive delay.  Id. at 1559.  The available remedies range from  expediting the appeal to dismissing

the underlying criminal charges.  Allen prays in the instant case

for reversal of his conviction and dismissal with prejudice of all

charges against him, or, alternatively, reversal and remand for a

new trial.

	Allen claims that due process was denied him because pauper

appellate counsel was not appointed for him until March 1992.  The

elapsed time was forty-four months since he was sentenced and

twenty-five months from denial of his pro se belated motion to correct errors.  He also points out that his appeal was not fully

briefed by counsel until July 29, 1994, more than five years from the denial of his pro se belated motion to correct errors.  Present counsel, of course, completed briefing promptly after being

appointed.  Allen demands that the time be calculated in toto rather than in segments.  Therefore, he claims the delay is

presumptively unconstitutional, and satisfies the first Barker prong.  See Harris, 15 F.3d at 1560-61 nn. 10-12.  We decline to accept Allen's contention.

	The essence of Allen's claim is that state action denied him

a constitutional right.  This requires us to examine the actions of

State actors, more than merely looking at the calendar.   Where the

State can demonstrate "good and sufficient cause or special

circumstances" for the delay, a presumption of unconstitutional

delay may be overcome.  Harris, 14 F.3d at 1560 (citation omitted).  We agree with Allen that the delay in this case exceeds accepted

notions of reasonableness, but this only entitles Allen to a

presumption that can be rebutted.  There are some circumstances

that, though not justifying delay, explain much of it.24  What is not explicable, and leads us to find the delay in adjudicating this

appeal unreasonable, is the two-year delay in the appointment of

pauper counsel.  The trial court's lack of diligence tips the first

Barker factor in Allen's favor.

	Second, Allen maintains that he was not responsible for the

delay in processing his appeal.  This is not entirely true because

Allen's act of filing a pro se motion to correct errors caused an irretrievable break-down in the attorney-client relationship and

put counsel's continued representation into a conflict with Allen's

own  interest.  Allen bears the responsibility for any delay caused

by this act, but he is not responsible for the trial court's delay

in appointing successor counsel or managing the court reporter. 

Nor can Allen be assessed the responsibility for appellate counsel

Sexson's delay in filing the brief.  Thus, we conclude that Allen

has caused relatively little of the delay in adjudicating this

appeal.

	Allen asserts he meets Barker's third prong because he consistently pressed his cause, which invoked his right to a prompt

resolution of his appeal.  This argument is not convincing,

especially in light of his reliance on Harris.25  Allen has filed the same papers as any other appellant.  He has not filed any

documents indicating a desire to speed the process.  Accordingly, Barker's third factor does not weigh in Allen's favor.

	Prejudice to the claimant is the most important prong of the Barker test.  Allen claims that delay has prejudiced him in two ways:  he suffers constitutionally cognizable anxiety and he cannot

receive a fundamentally fair review of his conviction and sentence

in this direct appeal.26

	"Constitutionally cognizable anxiety" is a nebulous notion. 

In Harris v. Champion, the Tenth Circuit attempted to flesh out the concept.  That court noted:

	[T]hat a petitioner is anxious about the outcome of the

appeal from the day the notice of appeal is filed is of

no consequence; the anxiety must relate to the period of

time that the appeal was excessively delayed.

Harris, 15 F.3d at 1564.  The court enunciated a rule requiring the claimant to make a particularized and substantial showing of

anxiety and concern owing to the delay, except in cases of delay so 

egregious as to trigger the presumptive prejudice found in Doggett v. United States, 505 U.S. 647 (1992).27

	Allen claims that he has suffered "constitutionally cognizable

anxiety" in this way:

	It is difficult to imagine anything more anxiety-

producing and more inhumane, than the daily and agonizing

specter of your own execution at the hands of a system

which has repeatedly violated your most precious

constitutional rights.

(Appellant's Br. at 51.)  This hyperbole fails to specify any

particular and substantial anxiety resulting from the delay; all death sentences are "anxiety-producing."  Allen does not

demonstrate that he suffers "constitutionally cognizable" anxiety. 

	Allen also claims the time his case has taken prevents a fair

review in this Court.  Allen does not show, however, how his

ability to present this appeal has been prejudiced by the passage

of time.  To the contrary, this Court removed ineffective appellate

counsel, appointed replacement counsel, and protected him against

procedural default.  Furthermore, as Indiana's death penalty

jurisprudence has developed, the passage of time has strengthened

some of Allen's claims.  See discussion infra, Part IV(E).  Allen's appellate rights have not been prejudiced.

	Allen offers two arguments about delay and possible prejudice

in case of a retrial.  First, he says the passage of time will dim

the memories of the police officers who interrogated him.  This

argument is meritless because we hold that the interrogation is not

a constitutional violation.  As to Allen's second contention,

prejudice due to the death of a material witness,28 Allen fails to show how the witness' testimony is material or why it could not be 

presented by other witnesses.  In any event, we see no present

reason for a new trial.

	Balancing the four Barker factors, we conclude Allen has not been denied due process by the length of time his appeal has taken. 

Although the delay is presumptively prejudicial and Allen is not

responsible for most of it, he has neither demanded expedited

review nor proven actual prejudice.  This last consideration,

actual prejudice, weighs most heavily against him.  

	C.  The Death Penalty and the Mentally Retarded

	Allen maintains that his death sentence must be reversed

because he is mentally retarded.  Indiana now immunizes mentally

retarded criminals from the death penalty.  Ind. Code Ann. § 35-36-

9-1 to -7 (West Supp. 1996).29  As a result, Allen claims he may only be sentenced to a term of years.  Allen recognizes that for

this Court to so hold, we would have to apply the mental

retardation exemption retroactively because he was sentenced nearly

six years before its enactment.

	Allen urges four arguments in support of his position.  He

first argues that Section 35-36-9 alters death sentence eligibility for a class of offenders due to a personal characteristic that is

"not controllable or manipulable."  He asserts that refusal to

extend the statute to him would violate due process and equal

protection, and constitute vindictive justice and cruel and unusual

punishment.  Allen does not offer much on retroactivity to support

this contention, but instead attempts to bootstrap his "evolving

standards of decency" argument onto due process and equal

protection analyses.  This argument is not a substitute for

contentions recognized in the jurisprudence of these two clauses. 

Moreover, the principal case on vindictive justice cited by Allen, Vicory v. State, 272 Ind. 683, 400 N.E.2d 1380 (1980), is largely contrary to his position.

	Second, he asserts that new evidence shows him to be retarded,

and that he would be the first and last mentally retarded person

executed in Indiana.30  This claim is unfounded; the trial court has not found that Allen is retarded.  See infra, Part IV(F).

	Third, Allen demands retroactive application of mental

retardation death penalty immunity based on Daniels v. State, 561 N.E.2d 487 (Ind. 1990).  He contends that he may receive the new

statute's benefit notwithstanding Daniels because his conviction and sentence are not yet final.  Daniels, like Teague v. Lane, 489 U.S. 288 (1989), dealt not with a statutory privilege, right, or

immunity, but with changes in constitutional law.  Absent a

constitutional mandate for the rule exempting mentally retarded

individuals, this Court is neither expected nor required  to engage

in retroactivity analysis.  Rather, the extent of our writ is to

enforce the law as it was at the time Allen committed his crimes. 

Watford v. State, 270 Ind. 262, 384 N.E.2d 1030 (1979).

	Allen's fourth and last argument is that to execute him in the

face of his mental frailties would offend evolving standards of

decency, thereby rendering the punishment vindictive, cruel, and

unusual.  The idea that the legislature decided to exempt mentally

retarded criminals from the death penalty as a statement of

society's regard for the moral culpability of such individuals is

legitimate.  However, the General Assembly specifically legislated

and the Governor signed into law a state of repose for claims of

mental retardation in capital cases tried before July 1, 1994,

rather than amending the Constitution or leaving the act open-ended

for judicial interpretation.  Pub. L. 158-1994, Sec. 8, 1994 Ind.

Acts 1857.  Ernestine Griffin was murdered in 1987 and Allen was

tried in 1988.  Per the specific mandate of repose found in section

eight of Public Law 158, the trial court's judgment is not affected

by the statute exempting mentally retarded persons from the death

penalty.

	D.  Victim Impact Evidence

	Allen claims that he was denied due process by the admission

of victim impact evidence.  He maintains that Griffin's daughter's

testimony that Griffin was a religious woman who neither swore nor

drank alcohol, enjoyed baking, regularly attended church, read the

Bible, hosted Sunday school parties, and lived in the same house

for more than twenty years was offered for purpose of arousing

jury's sympathy for her, prejudicing Allen.  He claims admission of

this evidence violates Indiana law because death penalty cases are

exempted from the statutory mandate requiring a trial court to

consider a victim impact statement prior to sentencing.  Ind. Code

Ann. § 35-38-1-8.5, -9 (West Supp. 1996).  Allen adds that

consideration of victim impact evidence violates both the

constitutional requirement of proportionate sentencing and the

prohibition against vindictive justice, Ind. Const. art I, §§ 16, 

18.  He claims it diverts the jury and trial court's attention from

the defendant and his crime.

	The State responds with alternative arguments.  First, the

State argues that the prosecutor intended only to show the victim's

propensities not to use violence and not to use certain racially

derogatory slurs and curse words.  Second, the State insists that

even if this evidence was improperly admitted under Bivins v. State, 642 N.E.2d 928 (Ind. 1994)(victim impact evidence inadmissible in capital cases), the admission was harmless.   			

	We agree with both the State's contentions.  Evidence of

Griffin's character was relevant to rebut Allen's version of the

facts:  that while Allen was in Griffin's home she cursed and

insulted him and then attacked him with a knife, causing him to

strike back at her.  Even though this guilt-phase evidence may have

been unnecessarily drawn out in rebuttal, the prosecutor did not

expressly rely on it in his argument to the jury.  Accordingly,

Allen cannot demonstrate prejudice because the jury's attention was 

not diverted from the defendant to the victim nor was there an

appeal to the jurors' sense of vengeance. 

	Moreover, any prejudice was attenuated in both time and manner

of use.  The allegedly prejudicial evidence was admitted during the

guilt phase, not the penalty phase or sentencing hearing, and

therefore is separated from sentencing by a significant gap in

time.

	Tension always inheres in the admission of evidence of a

murder victim's character when the guilt-phase evidence is

stipulated into the penalty-phase.  The critical issue in measuring

prejudice to the defendant is the manner in which the state employs

the evidence.  Death penalty trials employ a bifurcated procedure

designed to provide the defendant with a just, fair legal process

that ensures a death sentence is unique and particular to the defendant and the crime.  Naturally, different evidentiary

relevancy concerns are in play because different legal issues are

being resolved in a capital trial's various procedural stages.

	The penalty phase differs from the guilt-phase in some

significant ways.  It is a sequential, two-pronged inquiry, the

first of which is a factual determination of proof beyond a

reasonable doubt of the charged statutory aggravator.  This is

clearly distinguishable from requiring the jury to test the

evidence for proof beyond a reasonable doubt of all the elements of

a crime because it is a very specific inquiry into the nature of a

murder.  The second inquiry in the penalty-phase requires balancing 

of aggravators and mitigators, and it is undertaken only once the

jury has found the charged statutory aggravator proven beyond a

reasonable doubt.  

	We are satisfied that the error, if any, was harmless. 

Bivins, 642 N.E.2d at 957.

	E.  Non-Statutory Aggravators

	Allen claims that the trial court committed constitutional and

statutory error by relying on invalid aggravating factors when

sentencing him to death.  This claim is the one that is most

adversely affected by the passage of time in the adjudication of this appeal, because a number of cases refining capital sentencing

procedures have been decided in the interim.  Directly on point,

this Court has decided Bellmore v. State, 602 N.E.2d 111 (Ind. 1992), and Bivins v. State, 642 N.E.2d 928 (Ind. 1994).

	Bellmore held that the open-ended authorization for general felony aggravators, Ind. Code Section 35-38-1-7.1(d), would be

impermissible in capital sentence proceedings as unconstitutionally

vague.  Bellmore, 602 N.E.2d at 129.  It also held that an aggravating factor not among those listed in the death penalty

statute cannot be considered as "the determinative factor" when sentencing a defendant to death.  Id. (emphasis in original).  Relying on the Indiana Constitution's requirement that a death

sentence be proportionate to the nature of the offense and the

character of the offender, Ind. Const. art I, § 16, we held in

Bivins that a trial court may consider only those aggravating circumstances specified in the death penalty statute, Indiana Code

Section 35-50-2-9(b).  Bivins, 642 N.E.2d at 955.

	Sentenced in 1988, Allen's death sentence predated the

announcement of these rules.  In the court's oral pronouncement of

the sentence, it first considered the charged aggravating factor,

and one uncharged aggravating factor, and the mitigating factors

listed in the death penalty statute.  It then considered the general felony enhancement statute, Ind. Code Section 35-38-1-7,31 and then weighed the aggravators and mitigators.  The court merged

the murder and felony murder counts and sentenced Allen to death,

then sentenced him to the maximum penalty of fifty years for his

conviction of robbery as a class A felony.  The court's

consideration of the general felony sentencing statute undoubtedly

was proper for the purpose of sentencing Allen on the robbery

conviction.  We will, however,  apply Bellmore and Bivins to Allen's penalty of death.

	F.  Remand for Written Sentencing Order

	On July 3, 1996, we remanded Allen's case sua sponte to the trial court for production of a written sentencing order, which was

lacking in the transcript of proceedings.  Unlike other cases in

which we faced the deficiency of not having a written order to

review, our remand order was not merely a request for a nunc pro tunc entry, e.g., Schiro v. State, 451 N.E.2d 1047 (Ind. 1983), or a writ of certiorari, e.g., Benirschke v. State, 577 N.E.2d 576 (Ind. 1991).  Instead, we ordered the trial court to produce a new

sentencing order that complied with the procedures explained in

Roark v. State, 644 N.E.2d 565 (Ind. 1994), and the precedents established in Bellmore and Bivins.  Furthermore, we noted that Allen submitted affidavits with a belated motion to correct errors,

which had been denied, and directed the trial court to consider the

sworn statements under a Trial Rule 59 standard when issuing the

sentencing order.32  Without vacating the sentence, we effectively instructed the trial court to reconsider Allen's sentence under

narrower, stricter standards mandated by our later interpretations

of the law.

	On July 30, 1996, the trial court certified its order to us. 

We permitted additional briefs, and the parties submitted them.

Allen presents one issue following the remand:  whether the trial

court's sentencing statement imposing a sentence of death is valid

under statutory and constitutional standards.  He advances two

arguments to support his request for appellate reweighing and

sentence reduction to a term of years or vacatur of the sentence

and remand for a new penalty phase hearing before a different trial

judge:  (1) that the sentencing statement is not sufficiently

specific to ensure that the trial court complied with the law, and

(2) that the trial court did not comply with either statutory or

constitutional procedures.

	The sentencing order's first sentence states:  "The Court

finds that the State has proved beyond a reasonable doubt that the

aggravating circumstance of intentionally killing the victim while

committing a robbery exists."  (Supp. R. at 79.)  This finding is

supported by the record, and thus passes muster. 

	Allen's second argument, that the court's "sentencing

statement is insufficient because it fails to demonstrate statutory

or constitutional compliance," has five subcontentions:  (1) the

trial judge failed to make "separate and independent judgments"

with respect to the aggravator, its weight, or the balance between 

aggravator and mitigators; (2) the sentencing statement does not

provide any assurance that the judge did not consider improper matters; (3) the court did not conduct discrete and individualized

consideration of Allen's character; (4) the evidence relied on by

the court is not credible; and (5) the sentencing statement fails

to indicate that the death sentence was the personal conclusion of

the judge.  These arguments can be pared down to whether the trial

judge properly considered and weighed the evidence, whether he

considered invalid aggravators, and whether the judge reached an

independent conclusion that a sentence of death is warranted.

	Oddly, counsel claims that the order is "complete(ly) silent"

regarding the evidence of mental retardation.  Judge Barney devoted

more than half of his four-page order to weighing the evidence

averred by Mary Jo Dare and Dr. Richard Dever, experts who

submitted affidavits supporting Allen's claim of retardation.  He

found it controverted by other evidence in the record, which

reduces the issue to one of credibility.  The trial court's

judgment about the credibility and weight of evidence is part and

parcel of its statutory balancing function.  This Court will not

second-guess the trial court on questions of credibility or

weighing.  Benirshke, 577 N.E.2d at 582. 

	Second, Allen claims the sentencing statement does not provide

any assurance that the judge did not consider improper matters as

aggravating factors.  Specifically, he claims that the written

order does not erase the errors committed in the oral pronouncement

of sentence made by the judge in 1988.  We disagree.

	Our remand order specifically directed the trial court to take

three actions that operated to Allen’s benefit when issuing the

written sentencing order.  The first was our command that the trial

court follow current capital sentencing standards, which are

stricter and narrower than those of 1988.  The second was our

directive that the court consider evidence favorable to the

defendant that was outside the trial record.  Finally, we granted

the full scope of Trial Rule 59 powers to the court, explicitly

empowering it to grant relief such as that contemplated in sub-

section (J).33  Essentially, the trial court was invited to reconsider its sentencing determination in light of new evidence

and a more limited weighing standard, with more specific

requirements for explaining its determination of the balance.  We

consider this a fair process, one which advanced Allen's interests.

	We ordered these safeguards to assure that impermissible non-

statutory aggravators were not factors weighing in the capital

sentencing balance.  The trial court performed its duty under the

remand order in a straightforward way.  Allen suggests nothing

demonstrating otherwise.

	Allen complains that there is a "deafening silence" from the

trial court with respect to its finding that the charged

aggravating factor outweighs "the possibility of the mitigating

circumstance of mental retardation."  This is not true.  Judge

Barney devoted more than fifty percent of his written order to

determining the weight to ascribe to the mental retardation

evidence averred.  He accomplished this by comparing it to evidence

already contained in the record:  that Allen's criminal history

showed him to be a "solo-acting criminal;" that earlier presentence reports showed Allen with an I.Q. of 104;34 that in open court his own counsel withdrew a prior motion for psychiatric evaluation;

that none of his family members who testified on his behalf

described him as anything other than of normal intelligence;35 that none of the eighteen people who submitted letters on Allen's behalf

to the court hinted that he was not of normal intelligence; and

that the judge's own observation of the defendant showed that he

understood the proceedings.  Accepting the facts alleged about

Allen's childhood does not compel a finding of mitigating

circumstances.  Lowery v. State, 547 N.E.2d 1046 (Ind. 1989), cert. denied 498 U.S. 881 (1990).  Comparison is what a person does when balancing, and the trial judge indeed weighed the evidence when

deciding to impose a sentence of death.

	Moreover, the trial court certified on remand that it

considered only one aggravating factor:  the defendant's act of

intentionally killing the victim while committing a robbery.  It

then considered statutory mitigating factors and the defendant's

affidavits tending to describe him as retarded.  The trial judge

found the evidence relevant to mitigating factors to be of little weight.  Accordingly, he found the charged aggravator outweighed

the mitigating factors, considered the jury recommendation that the

defendant should be sentenced to death, and pronounced a sentence

of death.  This is what the death penalty statute requires.  Ind.

Code Ann. § 35-50-2-9 (West Supp. 1996); Roark v. State, 644 N.E.2d 565 (Ind. 1994).

	Allen's claims that the sentencing statement fails to indicate

that the death sentence was the personal conclusion of the judge

and that the court did not conduct discrete and individualized

consideration of Allen's character are meritless.  The written

order refers to information contained in pre-sentence reports and

personal letters that only the trial judge would have seen, not the

jury, and the order specifically refers to "the Court's own

observation of the Defendant."  (Supp. R. at 81.)  The court's

balancing of the evidence emphatically displays its discrete,

individualized sentencing.

	 The trial court weighed only one statutory aggravator, which

it expressly found was proven beyond a reasonable doubt.  It

considered Allen's mental retardation evidence and found it to be

of little weight.  It weighed the evidence of mitigating factors

against the aggravating factor, it considered the jury's

recommendation, and then it concluded that death was the

appropriate sentence.  Accordingly, the trial court’s order 

demonstrates satisfactorily that the court complied with statutory

and constitutional law when sentencing Allen. 

	Conclusion

	The arguments made in this appeal do not demonstrate that

Howard Allen was sentenced to death in a tainted, unconstitutional

proceeding.  The fact that the arguments made by Allen's counsel

did not convince the jury not to recommend the death penalty or the

judge not to impose it does not prove that counsel was ineffective

or that Allen did not receive a fair hearing.  The evidence that

Ernestine Griffin was intentionally killed and that Howard Allen is

her killer overwhelms.  There is little evidence that Allen is

mentally retarded, and none that shows him to be incapable of

appreciating the criminality of his conduct or to conform it to the

law.  At sentencing, Allen's colloquy with the trial judge amply

demonstrated that he was mentally present and that he understood

the proceedings.  As a result, the trial court's balance of the

statutory aggravator against the scant evidence in mitigation and

the court's due consideration of the jury's recommendation are

reasonable in fact and supportable in law.  We conclude that the

aggravating circumstance outweighs the mitigating circumstance and

that the penalty is appropriate to the offense and the offender.  

	Accordingly, we affirm the trial court.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.