Summary:

Woods, Greg Sloan, and Pat Sweet went to the home of Juan Placencia in Garrett, Indiana to steal a television. Woods was armed with a knife.

Sweet stayed in the yard, while Woods and Sloan rang the doorbell. When Placencia answered, Woods immediately jumped in and stabbed him with the knife. When he fell back and asked for help, Woods then stabbed him again repeatedly and took money from his wallet.

Woods and Sloan then carried out the television, hid it, and later sold it. They washed their clothes and threw the knife in the creek.

When police arrived the next morning in response to a call of a man needing help, Woods was on the porch of Placencia’s apartment complex crying and saying that he had gone there to use the telephone and found the body.

While questioning Woods, his mother came to the scene and told police that she thought her son was involved in the murder. She consented to a search of her residence, which revealed a knife sheath and a stained towel. Woods was taken to the station and while preparations were being made for a polygraph, Woods broke down and gave a complete confession. Sloan testified at trial after entering a guilty plea to Aiding in Murder.

Citations:

Direct Appeal:
Woods v. State, 547 N.E.2d 772 (Ind. November 28, 1989) (885-S-343)
Conviction Affirmed 5-0 DP Affirmed 5-0
Debruler Opinion; Shepard, Givan, Pivarnik, Dickson concur.
For Defendant: David P. Freund, Deputy Public Defender (Carpenter)
For State: Cheryl L. Greiner, Deputy Attorney General (Pearson)

Woods v. State, 557 N.E.2d 1325 (Ind. November 23, 1990) (On Rehearing)
Affirmed 5-0; Debruler Opinion; Shepard, Givan, Pivarnik, Dickson concur.
For Defendant: David P. Freund, Deputy Public Defender (Carpenter)
For State: Cheryl L. Greiner, Deputy Attorney General (Pearson)
Woods v. Indiana>, 111 S.Ct. 2911 (1991) (Cert. denied)

PCR:
PCR Petition filed 05-06-94. Amended PCR filed 06-21-94.
State’s Answer to PCR Petition filed 07-25-94.
PCR Hearing 01-06-96, 01-17-96, 01-18-96, 01-19-96.
Special Judge David Ault
For Defendant: David C. Stebbins, Columbus, OH, Joe Keith Lewis, Marion
For State: Eugene Bosworth
04-15-96 PCR Petition denied.

Woods v. State, 701 N.E.2d 1208 (Ind. November 3, 1998) (06S00-9403-PD-224)
(Appeal of PCR denial by Special Judge David Ault)
Affirmed 5-0; Boehm Opinion; Shepard, Dickson, Sullivan, Selby concur.
For Defendant: David C. Stebbins, Columbus, OH, Joe Keith Lewis, Marion
For State: James D. Dimitri, Deputy Attorney General (Modisett)
Woods v. Indiana, 120 S.Ct. 150 (1999) (Cert. denied)

Habeas:
04-14-99 Notice of Intent to File Petition for Writ of Habeas Corpus filed.
12-02-99 Petition for Writ of Habeas Corpus filed in U.S. District Court, Northern District of Indiana.
David Leon Woods v. Rondale Anderson, Superintendent (IP 99-C- 0520-M/S)
Judge Larry J. McKinney
For Defendant: William Van Der Pol, Jr., Martinsville, Teresa Harper, Bloomington
For State: Michael A. Hurst, Stephen R. Creason, Deputy Attorneys General (S. Carter)
04-27-00 Respondent’s Return and Memorandum filed in opposition to Writ of Habeas Corpus.
03-31-03 Petitioner’s Reply and Memorandum filed in support of Writ of Habeas Corpus.
02-02-04 Writ of Habeas Corpus denied.

Woods v. Anderson, 302 F.Supp.2d 915 (S.D. Ind. February 2, 2004) (IP99-0520-C-M/S)
(Order of U.S. District Court Judge Larry J. McKinney, Southern District of Indiana, denying Writ of Habeas Corpus.)
For Defendant: William Van Der Pol, Jr., Martinsville, Teresa Harper, Bloomington
For State: Thomas D. Perkins, Deputy Attorney General (S. Carter)

Woods v. McBride, 430 F.3d 813 (7th Cir. November 30, 2005) (04-1776)
(Appeal of denial of Writ of Habeas Corpus)
Affirmed 3-0; Opinion by Circuit Judge Michael S. Kanne .
Judge William J. Bauer and Judge Terence T. Evans concur.
For Defendant: William Van Der Pol, Jr., Martinsville, Teresa Harper, Bloomington
For State: Thomas D. Perkins, Deputy Attorney General (S. Carter)

Final Meal:

Woods shared a last meal of birthday cake and pizza with his family Wednesday. Prison officials had him on a liquid diet Thursday.

Final Words:

"I want Juan's family to know I truly am sorry, and I do have remorse. I want everybody to know that I do have peace, and it’s through Jesus Christ that I have this peace.

ClarkProsecutor.org

Clark County Prosecuting Attorney

ON DEATH ROW SINCE 03-28-85
DOB: 08-07-1964
DOC#: 851765
White Male

Sentencing Judge: Boone County Superior Court Judge Donald R. Peyton
Venued from DeKalb County
Trial Cause #: SCR-84-160 (Dekalb County) S-7007 (Boone County)
Prosecutor: Paul R. Cherry, Ora A. Kincaid, III
Defense: Allen F. Wharry, Douglas E. Johnston, Charles C. Rhetts

Date of Murder: April 7, 1984
Victim(s): Juan Placencia H / M / 77 (Neighbor of Woods)
Method of Murder: stabbing with knife 21 times

Trial: Information/PC for Murder filed (04-09-84); Amended Information for DP filed (04-12-84); Amended DP Information (04-26-84); Motion for Change of Venue (05-09-84, 05-31-84, 07-31-84); Change of Venue Granted (08-06-84); Amended Information filed (08-15-84); Voir Dire (02-19-85, 02-21-85, 02-22-85); Jury Trial (02-22-85, 02-23-85, 02-25-85, 02-26-85, 02-28-85, 03-01-85, 03-02-85); Verdict (03-02-85); DP Trial (03-04-85); Verdict (03-04-85); Court Sentencing (03-28-85).

Conviction: Murder, Robbery (A Felony)
Sentencing: March 28, 1985 (Death Sentence, 50 years)

Aggravating Circumstances: b (1) Robbery
Mitigating Circumstances: no prior criminal record, 19 years old at the time of the murder, mistreated as a child, raised in foster homes, personality disorder

David Leon Woods executed for 1984 murder

Indianapolis Star

Associated Press - May 3, 2007

MICHIGAN CITY, Ind. — David Leon Woods was executed by lethal injection early Friday for killing a 77-year-old man during a 1984 burglary. Woods, 42, was pronounced dead at 12:35 a.m. Central Daylight Time, officials at the Indiana State Prison said.

The U.S. Supreme Court rejected requests that Woods' execution be stayed Thursday, as did the 7th Circuit Court of Appeals. Indiana Gov. Mitch Daniels also denied clemency for Woods on Thursday. The state Parole Board had earlier unanimously recommended against granting clemency. Woods' attorneys had tried to stop the execution on the grounds that Indiana's lethal injection protocol constitutes cruel and unusual punishment. He also disputed the state court's method of determining whether he was mentally retarded, which could have rendered him ineligible for the death penalty. Federal courts won't stop execution

The U.S. Supreme Court today turned down two requests from David Leon Woods to block his execution, The Associated Press reported. Woods had challenged with the high court the state Supreme Court's method of determining whether he is mentally retarded. Separately, the 7th U.S. Circuit Court of Appeals in Chicago today denied the second of two requests for intervention. Today's federal court actions appeared to leave no further legal options for Woods.

Daniels won't grant clemency

Gov. Mitch Daniels today said he will not grant clemency to David Leon Woods, who is set to be executed by lethal injection early tomorrow in a 1984 murder. Daniels said he based his decision on the parole board’s recommendation, which unanimously recommended against it, and on the wishes of the victim's family. Barring court intervention, Woods will be put to death at the Indiana State Prison in Michigan City sometime before dawn Friday.

Woods was convicted of fatally stabbing Juan Placencia in April 1984.

Aside from his clemency bid, Woods has asked the U.S. Supreme Court to block his execution, challenging the state Supreme Court’s method of determining whether he is mentally retarded. His lawyer, Linda Wagoner, said she planned to appeal a federal court’s ruling denying a preliminary injunction to delay the execution. Should it go through, Placenia’s family will be the first to view an execution since Indiana changed its law last year giving relatives of murder victims the right to watch executions.

Sen. Tom Wyss, R-Fort Wayne, said he proposed the change after meeting with the prison warden and discovering victims’ families had to get permission from the person being put to death if they wanted to watch the execution. “The person being executed already has caused these people harm. Obviously, they’ve lost a loved one in some way, and they have to ask his permission if they feel they want to watch?” Wyss said. “It just seemed like the state was giving them another slam.”

Prison spokesman Barry Nothstine said he could recall only one execution where a victim’s family member watched. That was two years ago when Kevin A. Conner allowed relatives of three men he killed in Indianapolis to witness his death. Nothstine said Gregory Scott Johnson invited a relative of 82-year-old Ruby Hutslar of Anderson to watch his execution two years ago, but that person did not attend.

The victim’s son, Gene Placencia, who lives in Ridgecrest, Calif., said he wants to watch the execution to show support for the system. “I won’t be there because I’m bitter. I won’t be there because I hate him — I don’t care for the person, but I don’t hate him,” he said. “We’re going to be there because we need to support our courts and we need to support the laws that have been set forth.”

Placencia said not all his siblings want to watch the execution. “Some of them wanted to deal with it in another way and didn’t want to be present,” he said.

Juan Placencia’s granddaughter, Tonya Hoeffel, who was 20 when he was killed, is not eligible to watch the execution. Only spouses, parents, siblings, children and grandparents can view an execution, and all must be at least 18 years old. A maximum of eight people are allowed. Hoeffel said she would not have wanted to view Woods’ death anyway. “I don’t take any joy in knowing that someone may die on Friday,” she said. “I’m just going to support my family.”

Wyss said that was his intent when he proposed the law. “If nobody wants to go, fine. But no one should have to go before the victimizer and ask permission,” he said. Under the new law, the person being executed can have up to five people watch, down from 10 previously. To accommodate the change, the prison built a separate room for family members of the victim. Woods will be able to see the people he invited and the victim’s family members, Nothstine said.

Hoeffel’s mother, Catherine Placencia, said she has no qualms about watching the execution. “I’ve waited for this to happen for 23 years,” she said. “I’m good with it.”

Victim's family to witness execution

By Tom Coyne - Indianapolis Star

Associated Press May 3, 2007

SOUTH BEND, Ind. — Gene Placencia hopes to find closure by watching the man who fatally stabbed his father 23 years ago die by lethal injection early Friday. “I know because of the length of time it’s taken it will give me some closure to be there,” Placencia said. “Hopefully it will be the same for all of the family.”

Barring court intervention, Placencia and four of his 12 siblings will be at the Indiana State Prison in Michigan City early Friday for the execution of David Leon Woods, who was convicted of fatally stabbing Juan Placencia in April 1984. They will be the first to view an execution since Indiana changed its law last year giving relatives of murder victims the right to watch executions.

Sen. Tom Wyss, R-Fort Wayne, said he proposed the change after meeting with the prison warden and discovering victims’ families had to get permission from the person being put to death if they wanted to watch the execution. “The person being executed already has caused these people harm. Obviously, they’ve lost a loved one in some way, and they have to ask his permission if they feel they want to watch?” Wyss said. “It just seemed like the state was giving them another slam.”

Prison spokesman Barry Nothstine said he could recall only one execution where a victim’s family member watched. That was two years ago when Kevin A. Conner allowed relatives of three men he killed in Indianapolis to witness his death. Nothstine said Gregory Scott Johnson invited a relative of 82-year-old Ruby Hutslar of Anderson to watch his execution two years ago, but that person did not attend.

Placencia, who lives in Ridgecrest, Calif., said he wants to watch the execution to show support for the system. “I won’t be there because I’m bitter. I won’t be there because I hate him — I don’t care for the person, but I don’t hate him,” he said. “We’re going to be there because we need to support our courts and we need to support the laws that have been set forth.”

Woods has asked the U.S. Supreme Court to block his execution, challenging the state Supreme Court’s method of determining whether he is mentally retarded. His lawyer, Linda Wagoner, said she plans Thursday to appeal a federal court’s ruling denying a preliminary injunction to delay the execution. Woods also is waiting for Gov. Mitch Daniels to decide whether to grant him clemency. The state Parole Board unanimously recommended against it.

Placencia said not all his siblings want to watch the execution. “Some of them wanted to deal with it in another way and didn’t want to be present,” he said. Juan Placencia’s granddaughter, Tonya Hoeffel, who was 20 when he was killed, is not eligible to watch the execution. Only spouses, parents, siblings, children and grandparents can view an execution, and all must be at least 18 years old. A maximum of eight people are allowed. Hoeffel said she would not have wanted to view Woods’ death anyway. “I don’t take any joy in knowing that someone may die on Friday,” she said. “I’m just going to support my family.”

Wyss said that was his intent when he proposed the law. “If nobody wants to go, fine. But no one should have to go before the victimizer and ask permission,” he said. Under the new law, the person being executed can have up to five people watch, down from 10 previously. To accommodate the change, the prison built a separate room for family members of the victim. Woods will be able to see the people he invited and the victim’s family members, Nothstine said.

Hoeffel’s mother, Catherine Placencia, said she has no qualms about watching the execution. “I’ve waited for this to happen for 23 years,” she said. “I’m good with it.”

Murderer apologized before he was executed

Indianapolis Star

May 5, 2007

Michigan City -- Gene Placencia wanted David Leon Woods to look him in the eye before Woods was put to death by injection for killing Placencia's father 23 years ago. He settled for watching Woods die. "My dad's spirit can rest now," Placencia said. "My father was taken from us in 1984. When we had his funeral, he didn't rest in peace. I would say today I would put a little date on there of May 4th, 2007, as when his spirit will rest."

Woods, 42, died at 12:35 a.m. Friday. He was executed for killing Juan Placencia, a 77-year-old neighbor, in Garrett, about 10 miles north of Fort Wayne. Woods stabbed Placencia 21 times during a burglary.

Woods apologized before his execution. "I want Juan's family to know I truly am sorry, and I do have remorse," Woods said.

Placencia and four siblings were the first to watch an execution under a new law that gives up to eight spots to immediate family members of murder victims. The Placencias said they were glad they attended the execution. "Like my brother Gene said, I feel closure," said Rick Placencia, Garrett.

Judge refuses to block execution

By Jon Murray - Indianapolis Star

May 2, 2007

Attorneys for a Death Row inmate facing execution this week plan to appeal a court ruling rejecting his claim he would suffer unnecessarily as he dies. U.S. District Judge Richard L. Young on Tuesday denied David Leon Woods' request for a preliminary injunction in a lawsuit challenging Indiana's lethal injection procedures.

He and two other inmates argue those constitute cruel and unusual punishment. "Woods has not shown the existence of irreparable harm through the mere possibility that some unforeseen complication will result in a lingering death causing Woods to suffer unnecessary pain," Young wrote in a 12-page ruling. Woods, 42, faces execution early Friday for the 1984 stabbing death of his 77-year-old neighbor, Juan Placencia, in Garrett, north of Fort Wayne.

Linda Wagoner, one of Woods' attorneys, said she was disappointed with the ruling and planned to file an appeal today with the 7th U.S. Circuit Court of Appeals in Chicago. Woods' attorneys also have asked that court and the U.S. Supreme Court to review rulings in other cases. Young issued a separate ruling Tuesday denying the Indiana attorney general's request for a summary judgment. Staci Schneider, the attorney general's spokeswoman, declined to comment.

Gov. Mitch Daniels has not announced a clemency decision, though the state Parole Board unanimously recommended against it last week.

Peace, remorse mark murderer’s final day

By Angela Mapes - Fort Wayne News Sentinel

May 5, 2007

MICHIGAN CITY – David Leon Woods spent the day leading up to his execution in a calm mood, Indiana State Prison officials said. “He told me this morning that he’s going to a better place, and he stayed that way throughout the day,” prison spokesman Barry Nothstine said late Thursday as prison officials prepared for Woods’ execution.

Woods, 42, was pronounced dead by lethal injection at 1:35 a.m. Fort Wayne time Friday, his sentence for the 1984 slaying of 77-year-old Juan Placencia of Garrett served after more than two decades.

Woods shared a last meal of birthday cake and pizza with his family Wednesday. Prison officials had him on a liquid diet Thursday. His pet cat – a recent allowance for death-row inmates – was willed to a family member and had been taken from the prison Thursday afternoon, Nothstine said.

Five of Placencia’s children watched the execution. Three of his sons spoke with reporters and protesters in the chilly, dark parking lot outside the prison after Woods died. Gene Placencia of Ridgecrest, Calif., who bears a resemblance to his father, said he’d hoped Woods would see his face before he died. Woods didn’t, but the execution still gave Gene Placencia closure, he said.

Woods acted as “judge, jury and executioner” when he stabbed Juan Placencia 21 times while breaking into the older man’s apartment but was given fair treatment by the state of Indiana, Gene Placencia said. The Placencia family now can begin a years-delayed healing process now that Woods has been punished for his crime, he said. “We’re not here because we hate this guy,” he said.

Gene Placencia said he will mark May 4, 2007, as the date that his father’s spirit finally rested in peace. But other Placencia family members still struggled with their anger, said son David Placencia, who said he hasn’t forgiven Woods.

Attorney William Van Der Pol Jr. spoke on behalf of Woods’ family after the execution. “Tonight should not be about retribution for the past, but hope for the future,” he said.

In a final statement, Woods said he had remorse for the killing and apologized to Placencia’s family. “I want everybody to know that I do have peace, and it’s through Jesus Christ that I have this peace,” he said. Gov. Mitch Daniels on Thursday denied clemency for Woods after the parole board unanimously recommended against clemency.

Woods was the first Indiana inmate put to death since January 2006.

Executions set record pace under Daniels

By Niki Kelly - Fort Wayne News Sentinel

May. 04, 2007

INDIANAPOLIS – David Leon Woods’ death would be the seventh execution since Mitch Daniels became governor in January 2005 – a historic pace after three years in office. His term so far includes five executions in 2005 and one in 2006.

Former Gov. Frank O’Bannon – who died in 2003 – oversaw seven executions during his roughly seven years in office. Former Govs. Evan Bayh and Robert Orr each supervised two executions each during their eight-year terms. Joe Kernan did not go through an execution during his year in office, although he commuted two death sentences.

Daniels has also commuted one sentence – Arthur Baird II in 2005.

With the recent decision by a federal court to throw out Joseph Corcoran’s death sentence, Woods is the last northeast Indiana man on death row. Corcoran’s case is being appealed by the state, though.

It’s unclear who the next man who might be executed is, but Norman Timberlake had his 2007 date stayed by a federal judge pending a U.S. Supreme Court decision on executing the mentally ill. Michael Allen Lambert has also joined Timberlake’s suit and is near the end of his appeals.

Woods executed for 1984 murder of neighbor

By Tom Coyne - Northwest Times

AP - May 4, 2007

MICHIGAN CITY, Ind. - Gene Placencia wanted David Leon Woods to look him in the eye before he was put to death by injection for killing Placencia's father 23 years ago. He settled for watching Woods die. "My Dad's spirit can rest now," Placencia said. "My father was taken from us in 1984. When we had his funeral, he didn't rest in peace. I would say today I would put a little date on there of May 4, 2007, as when his spirit will rest."

Woods, 42, died at 12:35 a.m. Friday. He was executed for killing Juan Placencia, a 77-year-old neighbor, in Garrett, about 10 miles north of Fort Wayne. Woods stabbed Placencia 21 times during a burglary.

People who saw Woods on Thursday said he was at peace. Prison spokesman Barry Nothstine said Woods was just the second condemned inmate he had dealt with who showed no sign of worry or trepidation that he was about to die. "He was very calm, pleasant, relaxed," Nothstine said. "He expressed many times that he's found religion. He told me ... he was going to a better place."

Woods displayed his faith in his final statement. "I want everybody to know that I do have peace and it's through Jesus Christ that I have this peace," he said. Woods also apologized. "I want Juan's family to know I truly am sorry and I do have remorse," Woods said.

David Placencia, from Bakersfield, Calif., said he can't forgive Woods for his father's slaying. "I'm not one to forgive," he said. Gene Placencia, who lives in Ridgecrest, Calif., said Woods' death gives him peace. "I have closure. I can finally get on with my life, raise my kids, run my business and love my family," he said.

Placencia and four siblings were the first to watch an execution under a new law that gives up to eight spots to immediate family members of murder victims. In the past, victim's family members would have to ask the condemned inmate for permission to attend. The Placencias said they were glad they attended the execution. "Like my brother Gene said, I feel closure," said Rick Placencia of Garrett.

Woods' attorneys had tried to stop the execution on the grounds that Indiana's lethal injection protocol constitutes cruel and unusual punishment. Woods also disputed the state court's method of determining whether he was mentally retarded, which could have rendered him ineligible for the death penalty.

Woods' attorney, William Van Der Pol, Jr., spoke on behalf of Woods' family. "Tonight should not be about retribution for the past but hope for the future," he said. "Society should not take great solace or great glee in David's passing this evening."

Three of Woods' family members were among about 25 people who protested against the death penalty Thursday night outside the prison. Woods' brother-in-law, Tommy Yeager, said Woods hopes the Placencia family will forgive him. "David is not mad at them at all," Yeager said. "He understands their sorrow, and he hopes someday they can forgive him."

Woods was the first person put to death in Indiana since Marvin Bieghler on Jan. 27, 2006. Before that, the state executed five people in seven months in 2005. That was the most in one year in Indiana since 1938, when eight men were electrocuted over nine months.

Board rejects condemned inmate's clemency request

By Emily Udell - Northwest Times

AP - April 23, 2007

INDIANAPOLIS | The Indiana Parole Board on Monday refused to recommend clemency for a man set to be executed next week in the stabbing death of his 77-year-old neighbor.

David Leon Woods, 42, was sentenced to death in March 1985 for the slaying of Juan Placencia in the northeastern Indiana town of Garrett 11 months earlier. After listening to about three hours of testimony, the Parole Board unanimously recommended to Gov. Mitch Daniels that Woods' life not be spared. "Testimony and evidence provided concerning Mr. Woods' horrible childhood and appalling living conditions is merely an attempt to place blame where blame should not lie," board member Thor Miller said

Daniels plans to review the board's recommendation and other information on the case before making a decision on whether to allow the execution to proceed as scheduled on May 4 at the Indiana State Prison, said Jane Jankowski, the governor's spokeswoman. He can choose to accept or reject the board's recommendation.

William Van Der Pol Jr., an attorney for Woods, said he was disappointed by the board's vote. "It seems sad that we're going to execute a fundamentally flawed and injured individual who committed a crime when he was 19 years old," Van Der Pol said

Woods' relatives, attorneys and others who knew him asked the board to recommend clemency, describing Woods' childhood as one marred by abuse, neglect and stints in foster care. "David had absolutely zero love in his life," said Wanda Callahan, Woods' pastor on death row. "He told me time and time again that he didn't feel safe until he was on death row." Woods attorneys also said he suffered brain disfunction and had not adequate legal representation.

Members of the Placencia family, wearing buttons with Juan Placencia's picture, said they believed Woods deserved execution. "Nobody forced David Woods to stab my grandfather 21 times while he pleaded for help," said Glenn McDonald, who was 14 at the time of the murder.

According to testimony Monday, Woods stabbed Placencia repeatedly in the face, neck and torso after forcing his way into Placencia's home. He took $130 from Placencia's wallet and a television that he later sold for $20. Woods told the Parole Board during a hearing Friday at the state prison in Michigan City that he went to Placencia's home to retrieve some items his mother had left at her former boyfriend's house. He said she told him no one would be home.

Woods said he had been drinking and using drugs before going to Placencia's house where he stabbed the man once in the stomach and then again when a friend told him to silence him. Woods apologized to his family and to Placencia's on Friday and told the Parole Board that he found religion while in prison.

Woods' attorneys also have asked a federal judge to delay the execution, contending that the state Department of Correction's lethal injection protocol constitutes cruel and unusual punishment. A preliminary injunction hearing is scheduled for that case on Thursday, Van Der Pol said.

Indiana governors have commuted three death sentences in the past 50 years -- all three in the past three years. Six inmates have been executed since Gov. Mitch Daniels took office in January 2005.

Doctor: Lethal injections are 'catastrophically flawed'

But state prison officials testify inmates will be fully sedated before execution

By Jon Murray - Indianapolis Star

April 27, 2007

A doctor testifying Thursday in a lawsuit challenging Indiana's use of lethal injections in death penalty cases called state practices "catastrophically flawed." But officials from the Indiana State Prison in Michigan City said they are confident that David Leon Woods, one of three Death Row inmates challenging the state's system, will be fully sedated May 4 before another chemical is injected into him to stop his heart. With Woods' execution looming, U.S. District Judge Richard L. Young is expected to rule soon on Woods' request for a preliminary injunction. Young heard testimony during Thursday's daylong hearing.

The lawsuit, filed by fellow inmate Norman Timberlake in December, argues that the procedures and chemicals used in Indiana executions don't guard against unnecessary pain, constituting cruel and unusual punishment. During the hearing, Linda Wagoner, one of Woods' attorneys, also questioned the qualifications of the three-person team that injects the sequence of chemicals that sedate, paralyze and finally kill the prisoner.

Woods, 42, was convicted in the 1984 stabbing death of 77-year-old neighbor Juan Placencia in Garrett, north of Fort Wayne. Prison Superintendent Ed Buss, who stands at the foot of the gurney for all executions, said he and others who participate take their roles seriously. They aren't doctors, but they train monthly, with sessions twice a week leading up to an execution and a dress rehearsal just hours before.

Doctors don't take active roles in executions because of ethical concerns voiced by national medical associations. But during Indiana's executions, Buss said, a physician watches 7 feet away from the gurney, behind a window, and can intervene if there is a problem.

The inmates' attorneys countered with testimony from Dr. Mark Heath, an anesthesiologist at Columbia University in New York, who has testified in about 10 death penalty cases. He said the three-drug combination used by nearly every state with lethal injection -- including Indiana -- is poorly calibrated, increasing the risk that the anesthetic won't take hold or other problems will crop up. Heath also questioned whether Buss and others viewing the execution are trained to judge whether a prisoner is adequately sedated.

Officials have recently changed execution plans. For Woods, they plan to double the dose of anesthetic and will place an ammonia tablet under his nose to verify that he's sedated. "We looked at experts' testimony in other states," Buss said, and decided the new amount, 5 grams of sodium pentothal, was certain to be effective. "It's an increased safety margin," Heath said of the higher dose. "But in the absence of verifying the anesthetic depth in a meaningful way, it doesn't matter."

Heath said the second paralyzing drug -- used to keep the inmate from convulsing -- could prevent one who isn't adequately sedated from grimacing or showing other signs of consciousness. Concerns about lethal injection have prompted 11 states to suspend executions, by court order or on their own. But Buss and other officials defend Indiana's procedures.

State attorneys argued that Woods had not filed a prison grievance complaint about the execution procedures before he and inmate Michael Allen Lambert asked to join Timberlake's lawsuit in March. Woods filed a grievance Wednesday. Woods' attorneys continue to seek delays in his execution. But earlier this month, the inmate expressed resignation. He received a letter from prison officials that summarized a meeting in which they had explained the events of the coming weeks to him. At the bottom, he scrawled: "Done deal."

WHAT'S NEXT

David Leon Woods is scheduled to be executed May 4 at the Indiana State Prison in Michigan City.

• Courts: Woods' attorneys are seeking a delay from a judge hearing a lawsuit challenging Indiana's lethal injection procedures. They also have asked the 7th U.S. Circuit Court of Appeals in Chicago and the U.S. Supreme Court to review lower-court rulings against Woods.

• Clemency: Earlier this week, the Indiana Parole Board unanimously recommended that Gov. Mitch Daniels reject Woods' application for clemency. Daniels has not announced a decision.

Lawyers question execution change

Adding more anesthetic won't matter, they say

By Jon Murray - Indianapolis Star

April 20, 2007

Convicted killer David Leon Woods will be given twice as much anesthetic as other inmates Indiana has put to death when he is executed by injection next month. The change in the three-drug execution cocktail could ensure he won't feel pain, but it has puzzled attorneys for Woods and other Death Row inmates suing over Indiana's lethal-injection procedure.

The issue of proper drug dosing is one of several threatening to make Indiana executions inhumane and cruel, argues the federal lawsuit, filed in December by fellow Death Row inmate Norman Timberlake. Woods and Michael Lambert joined the suit this month. Such concerns have led 11 states, by court order or on their own, to suspend lethal injections. The attorneys said Indiana's adjustment would make little difference. "My understanding is that the most frequent problem is leaking or collapsing veins, and there have been some flow problems," said Linda Wagoner, one of Woods' two attorneys. "Increasing the dosage of the particular drug does not address either of those concerns."

Woods, 42, faces execution May 4 for the 1984 stabbing death of a 77-year-old neighbor, Juan Placencia, in Garrett, a town north of Fort Wayne. Woods requested a preliminary injunction this week, asking U.S. District Judge Richard L. Young to suspend his execution until Indiana adjusts its procedures.

State attorney Thomas Quigley disclosed the recent change to execution protocol April 13 during a telephone conference with Wagoner and the judge. According to a court document summarizing the discussion, the Indiana State Prison in Michigan City has increased the amount of sodium pentothal -- the first chemical injected -- to 5 grams from 2.5 grams. The barbiturate serves as a sedative. Two substances are then injected, to paralyze the muscles, then to stop the heart. Woods' attorneys have asked the state to explain in writing why the dose was changed and whether evidence backs up its effectiveness.

Java Ahmed, a spokeswoman for the Indiana Department of Correction, attributed the change to a recent review of the protocol. Officials regularly look at staffing, procedures and equipment "to ensure that the department is implementing the best available practices," she said in an e-mail. Many states already use Indiana's new dose of the drug, though others have given inmates a smaller amount than Indiana's old dose.

Little input on the drugs, their use or dosages has come from medical doctors. They often refuse to take part in executions out of ethical concerns in a profession that aims to protect the health of patients. Critics of lethal-injection procedures nationally point out that the same sequence of drugs has been used for decades, simply passing from state to state without a complete medical review. "It's close to a medical procedure, and it's being performed by nonmedical personnel," said Richard Dieter. He is the executive director of the Death Penalty Information Center in Washington, which is critical of how states carry out lethal injections. Brent Westerfeld, Timberlake's attorney, said Indiana's decision to change one drug dose showed arrogance when other states have halted executions to thoroughly review all procedures.

PAROLE BOARD INTERVIEW TODAY

David Leon Woods has applied for clemency as his May 4 execution nears.

• Clemency: The state Parole Board will interview Woods at Indiana State Prison today. The board will hear testimony Monday at the Indiana Government Center South in Indianapolis before voting on its recommendation to the governor.

• Lawsuit: Woods has joined another Death Row inmate's federal lawsuit challenging how Indiana carries out lethal injections. If the judge grants a preliminary injunction, Indiana would not be able to execute Woods until it revamps its execution procedures.

• Petition: Woods has asked for another appeal and a stay of execution pending the outcome of a U.S. Supreme Court case dealing with mentally ill inmates.

Sources: Electronic court records, Indiana Department of Correction

My Dad’s spirit can rest now

By Bob Wellinski - LaPorte Harold Argus

May 4,-2007

MICHIGAN CITY -- Gene Placencia wanted David Leon Woods to look him in the eye before he was put to death by injection for killing Placencia’s father 23 years ago. He settled for watching Woods die. “My Dad’s spirit can rest now,” Placencia said. “My father was taken from us in 1984. When we had his funeral, he didn’t rest in peace. I would say today I would put a little date on there of May 4, 2007, as when his spirit will rest.”

Woods, 42, died at 12:35 a.m. Friday. He was executed for killing Juan Placencia, a 77-year-old neighbor, in Garrett, about 10 miles north of Fort Wayne. Woods stabbed Placencia 21 times during a burglary.

People who saw Woods on Thursday said he was at peace. Prison spokesman Barry Nothstine said Woods was just the second condemned inmate he had dealt with who showed no sign of worry or trepidation that he was about to die. “He was very calm, pleasant, relaxed,” Nothstine said. “He expressed many times that he’s found religion. He told me ... he was going to a better place.”

Woods displayed his faith in his final statement. “I want everybody to know that I do have peace and it’s through Jesus Christ that I have this peace,” he said. Woods also apologized. “I want Juan’s family to know I truly am sorry and I do have remorse,” Woods said.

Woods’ mother, Mary Lou Pilkington, spoke to the media shortly before her son’s execution. “I’m gonna miss my son very much,” she said. “We love him.” Mary Anne Pilkington-Yeager, Woods’ sister, said she would miss her brother, whom she called her spiritual guide. “I know for a fact that (Juan Placencia) would not have wanted this,” she said.

David Placencia, from Bakersfield, Calif., said he can’t forgive Woods for his father’s slaying. “I’m not one to forgive,” he said. Gene Placencia, who lives in Ridgecrest, Calif., said Woods’ death gives him peace. “I have closure. I can finally get on with my life, raise my kids, run my business and love my family,” he said.

Placencia and four siblings were the first to watch an execution under a new law that gives up to eight spots to immediate family members of murder victims. In the past, victim’s family members would have to ask the condemned inmate for permission to attend. The Placencias said they were glad they attended the execution.

Woods’ attorneys had tried to stop the execution on the grounds that Indiana’s lethal injection protocol constitutes cruel and unusual punishment. Woods also disputed the state court’s method of determining whether he was mentally retarded, which could have rendered him ineligible for the death penalty.

Woods’ family members, including his mother, sister and brother-in-law, Tommy Yeager, were among about 25 people who protested against the death penalty Thursday night outside the prison. Yeager said Woods hopes the Placencia family will forgive him. “David is not mad at them at all,” Yeager said. “He understands their sorrow, and he hopes someday they can forgive him.”

Woods’ last meal was pizza, according to Nothstine.

Woods was the first person put to death in Indiana since Marvin Bieghler on Jan. 27, 2006. Before that, the state executed five people in seven months in 2005. That was the most in one year in Indiana since 1938, when eight men were electrocuted over nine months.

Indiana Parole Board Rejects Clemency

The Honorable Mitchell E. Daniels, Jr., Governor.
State of Indiana
Room 206, State House
Indianapolis, Indiana 46204

April 23, 2007

Dear Governor Daniels,

The hearing process required by statute as a result of the filing of a Petition forClemency by David Leon Woods, DOC 851765, has been completed. Mr. Woods'petition seeks a reprieve and/or commutation of the sentence of death resulting from hisconviction by a jury in Boone County Superior Court of the murder by multiple stabwounds of Juan V. Placencia, 77, neighbor and friend of the petitioner.

The petition submitted on behalf of Mr. Woods focuses primarily on two issues which compels him to seek clemency. The first issue is the potential that the petitioner may be classified as suffering from mental retardation warranting a review of the appropriateness of this sanction of death. The second issue is the professional incompetence of his legal counsel at both the trial and appellate levels.

On Friday, April 20, 2007, the Indiana Parole Board convened in session at the Indiana State Prison in Michigan City, Indiana to personally interview David LeonWoods. Mr. Woods indirectly responded to the first issue of his petition for clemency concerning his mental capacity as he presented a very verbal person who not only responded quite appropriately and sufficiently to questions but led the discussion as necessary.

He was not only able to assist in this inquiry without any assistance or even any apparent need for assistance but was very intellectual and philosophical about his life and the presenting event. His level of understanding, his introspection, and his assessment of others in his life leads me to believe that Mr. Woods' mental capacity is more than sufficient not only to understand the correlation between his actions and logical consequences but he also appears to be a person who holds a personal peace after significant, in-depth, and introspective review of his life's situations.

No testimony offered this date significantly altered my assessment of Mr. Woods based upon his interview. Following the completion of the interview of April 20, 2007 and today's presentation, it appeared that the second issue has been fully addressed as well. The adequacy of Mr. Woods' legal counsel may have been assessed by some as potentially insufficient. Yet, still others believe that such is not the case. Competent legal counsel is essential to avoid any occurrence of any person being sanctioned in any form for an act that was accomplished by anyone other than the accused. However, if one were qualified to sit in judgment on the competency of the legal counsel in question, they would also have to be learned enough to dignify the result of this trial and appeals process as appropriate.

Ultimately, this trial process yielded a decision that reflected the most basic of legal concerns—the truth was accurately discovered in this case. David Leon Woods attempted to break into the home of Juan V. Placencia. Upon being surprised by Mr.Placencia, Mr. Woods stabbed Mr. Placencia in the abdomen with the approximate four inch knife that he had brought with him from his home. While Mr. Placencia fell backinto his chair with a potentially mortal wound pleading with Mr. Woods to now help him, Mr. Woods began to steal items from Mr. Placencia's home. When satisfied with his thefts, Mr. Woods returned to Mr. Placencia but not to help despite the elderly man's pleas but to stab him 20 additional times leaving him for dead.

After great deliberation, I find no compelling reason to request that the existing sentence of death imposed by ajury be altered due to the nature and circumstances of this crime. I recommend that the Petition for Clemency be denied.

Sincerely,

Christopher E. Meloy, Chairman

Woods v. State, 547 N.E.2d 772 (Ind. November 28, 1989) (Direct Appeal).

Following a jury trial, the Boone Superior Court, Donald R. Payton, J., convicted defendant of knowing and intentional killing, robbery, and serious bodily injury. Following another jury trial, the Court ordered death on the murder charge and 50 years on the robbery and bodily injury charges. Defendant appealed.

The Supreme Court, DeBruler, J., held that: (1) possible seizure of defendant by police was justified by probable cause; (2) prosecutor's arguments to the jury did not constitute cause for mistrial or undermine the reliability of the jury's death sentence recommendation; (3) finding that defendant had intentionally killed victim while in the course of a robbery, for purposes of proving an aggravating circumstance to impose death penalty, was supported by the evidence; (4) imposition of death penalty was appropriate in that aggravating circumstance of stabbing and killing victim in the course of a robbery outweighed the mitigating circumstances; (5) instruction on jury's duty was proper in the penalty phase of the murder trial; (6) defendant's right to trial by jury before a jury selected from a fair cross section of the community was not violated by exclusion of persons who had served as jurors within preceding year; (7) trial court's finding that murder defendant was competent to stand trial was supported by the evidence; (8) trial court's allowance of testimony of accomplice of defendant was not error; (9) trial court did not abuse its discretion in refusing defendant's request for a psychiatric examination; (10) trial court's decision to appoint only one of defendant's two trial counsel to prepare motion to correct errors was reasonable; (11) incorporation of evidence from guilt phase of murder prosecution to penalty phase did not create danger of arbitrariness or capriciousness; and (12) conviction of defendant for robbery and intentional killing in course of robbery violated double jeopardy, requiring sentence of 50 years for robbery to be vacated. Convictions of robbery and murder affirmed, imposition of sentence of death affirmed.

DeBRULER, Justice.

Appellant was charged in Count I pursuant to I.C. 35-42-1-1(1) with the knowing and intentional killing of Juan Placencia, *778 and in Count II pursuant to I.C. 35-42-5-1 with the robbery and serious bodily injury of the same victim, a Class A felony. In a separate request for a sentence of death, the prosecution alleged pursuant to I.C. 35-50-2-9(b)(1) the aggravating circumstance that appellant committed an intentional killing while committing robbery.

A trial by jury resulted in verdicts of guilty as charged in Counts I and II. Judgments were then entered on the verdicts. Two days later, the jury reconvened for the penalty phase of the trial. Following the presentation of evidence, the jury retired and then returned a verdict recommending the death penalty.

The cause then came on for sentencing. The trial court expressly found that the State proved beyond a reasonable doubt that appellant intentionally killed the victim while committing robbery. The court further concluded that the mitigating circumstances were outweighed by the single aggravating circumstance and ordered death on Count I and fifty years on Count II.

The evidence adduced at the trial viewed most favorably to the verdict shows that the following events transpired. At approximately 4:00 a.m. on April 7, 1984, appellant David Woods, along with Greg Sloan and Pat Sweet, proceeded to the apartment of the victim, Juan Placencia, to steal a television. This occurred in Garrett, Indiana, a small town. Placencia was a seventy-seven-year-old man who had medical problems with a knee. Woods, nineteen years old at the time, was armed with a knife and told Sloan and Sweet that he was going to scare Placencia with it.

Sweet stayed in the yard. Appellant Woods and Sloan approached the door of the apartment and rang the bell. Placencia answered the door, whereupon appellant Woods immediately jumped in and stabbed him several times with the knife. Placencia fell back into a chair, directed them to his money, and began to make noise, asking for help. Woods took the money from Placencia's wallet and then stabbed him again repeatedly. Placencia died from three wounds which pierced his heart. Woods and Sloan carried out the television and hid it in a trash bin. Later they picked it up and sold it. They also washed their clothes and threw the knife and other items in a creek.

We are presented with twenty-nine issues in this appeal.

The first appellate claim is that the trial court committed error when overruling appellant's motion to suppress and trial objections to the admission of his confession, the statements of certain witnesses, and certain items of physical evidence, all of which are asserted to be the direct product of his illegal arrest and detention. The Fourth Amendment requires that an arrest or detention for more than a short period be justified by probable cause. Probable cause to arrest exists where the facts and circumstances within the knowledge of the officers or of which they have reasonably trustworthy information are sufficient to warrant a belief by a person of reasonable caution that an offense has been committed and that the person to be arrested has committed it. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Limited investigatory seizures or stops on the street involving a brief question or two and a possible frisk for weapons can be justified by mere reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There is no seizure and thus no requirement of justification when a suspect freely and voluntarily accompanies police officers or shows up at the police station in response to an invitation and is questioned without restraint. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Dillon v. State (1983), Ind., 454 N.E.2d 845; Barber v. State (1981), Ind.App., 418 N.E.2d 563.

At approximately 9:45 a.m. on the same morning, responding to the report of a man needing help, Officer Kleeman of the Garrett police went to Palencia's apartment building and discovered appellant Woods there on a porch crying and incoherent, mumbling something on the order of “Why did it have to be him.” Kleeman had no idea what the problem was. Another person appeared and led Kleeman to the Placencia apartment. Kleeman told appellant to stay on the porch. After Kleeman entered the apartment and saw the body, he reported in and returned to the porch to question Woods about why he had been at the apartment. Woods responded that he had gone to the apartment to use the phone, had discovered the body, and had run from the apartment yelling for help.

Within a few minutes, Kleeman asked appellant to go to a police car away from the onlookers, including relatives of Placencia who had gathered, for further questioning. Appellant was given his Miranda rights; he said that he understood them and wanted to waive them. He said that he would talk to police and that he would be more than glad to help them in any way. Appellant was questioned for about a half hour in the car, essentially describing his discovery of the body and adding that he had been with Sloan and Sweet the night before. He was not arrested or physically restrained in any manner.

While appellant was being questioned in the police car, his mother appeared at the scene and told the police that she felt her son had been involved in the killing. She said he had been in and out of their house during the previous night asking for dark clothes and gloves and that he talked nervously about needing money and killing someone. He had talked about killing a woman who lived above Placencia in the same apartment house. She made this statement at about 10:20 a.m. and was transported to the police station where, at 10:40 a.m., she added to her previous statement that appellant had gone to the basement and awakened his brother and that at 7:00 a.m., he had come into the house again and seemed to be troubled about something. She signed a consent to search her house.

In the meantime, at the crime scene at 10:50 a.m., appellant was left alone in the police car after having been cooperative. Within five minutes, appellant, without being arrested or restrained, but without being told that he was free to go, was driven by another officer to the Garrett police station two blocks away. An officer testified that if appellant had sought to leave, he probably would not have grabbed hold of him, but would have asked him to stay until he had conferred with other officers.

Appellant arrived at the police station at about 10:52 a.m. and was escorted by the driver, who was in plain clothes, into the office of the chief. The driver was under instructions to stay with appellant and not engage him in any conversation or permit any one else to engage him in conversation. Appellant was permitted to go into an adjoining toilet and read a newspaper until Officer Kleeman arrived at about 11:50 a.m. He was again given his Miranda rights and signed a waiver of rights and a consent to search his residence. He was asked to and did empty his pockets. He had two black pills and a wallet containing $160.00. His wallet and money were returned to him, but the pills were not.

Appellant permitted the officer to examine his arms and torso. During this interrogation, appellant asked no questions, was not hesitant, and posed no opposition to anything that was taking place. It was not announced that he was under arrest, and he was not restrained by handcuffs or other devices. He was not told that he was free to go at any time nor was he told that he was not free to go. Appellant basically repeated his former claim of having discovered the body and was left in the office with yet another officer at a few minutes after noon.

At 12:55 p.m., a search of the residence of appellant and his mother produced a knife sheath and a stained towel, among other items. At 1:00 p.m., another person in appellant's residence confirmed that appellant had spoken and acted the night before in the manner attributed to him by his mother in her statement. At 1:20 p.m., one Krotzer gave a statement to police that appellant and Greg Sloan had appeared at his house at 5:00 a.m. and asked to borrow his car to haul a television.

At 4:45 p.m., appellant was still being held in the chief's office and was again interrogated after having again been read his Miranda rights and making an explicit waiver. As new pieces of evidence were worked into the interrogation, appellant's story began to change. A lie detector test was scheduled at the state police post for 8:00 p.m. Appellant was transported in handcuffs to the post where, while answering general questions in preparation for being attached to the machine, he broke down, confessing that he had gone with Sloan to the Placencia apartment to steal a television, had knocked on the door, and had stabbed Placencia as he answered the door and again inside the apartment. Appellant was returned to the county jail where he was formally arrested.

The evidence brought out during the hearing on the motion to suppress, which distinguishes this case from those in which a seizure of the person was held invalid because of the absence of probable cause, was appellant's status as the first person to discover a homicide, appellant's presence at the crime scene shortly after the crime, and the incriminating statements of appellant's mother to the officers at the crime scene and at the police station.

In Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), the police received a tip from an informant and a statement from a jail inmate that Dunaway was implicated in a crime which had occurred four months before. The police simply took him into custody, drove to police headquarters, and gave him his Miranda rights, which he waived. He then made an incriminating statement later admitted at trial. In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), Brown was arrested in his own apartment for murder a week after the crime because he was on a list of names of acquaintances of the victim.

In Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), a rape victim described her assailant as a Negro youth, and appellant, a Negro youth who had occasionally done yard work for the victim, was picked up on the street, taken to headquarters, fingerprinted, interrogated, and released.

In none of these cases were there facts and circumstances known to the officers which would have caused a person of ordinary caution to believe that the suspect had committed the crime under investigation. Here, by contrast, the officers heard from the mother that appellant had planned to rob and kill a woman the night before, discussing different ways of doing so and collecting the means for doing so. It was his habit to be up and about at night and to sleep in the daytime. She then heard him in the basement attempting to wake up his brother. At 7:00 a.m., he returned home again and appeared troubled and told his mother to wake up the children, although it was not a school day. He also said he wanted to go over to Juan Placencia's to use the phone.

The mother also supplied information from which the police could infer that Placencia's television had been taken in the attack, and thus that one of the motives in the attack was theft, the motive which appellant had revealed the night before. This information, coming as it did from appellant's mother, who lived in the victim's neighborhood in this small town and knew the victim and appellant well, was the sort of report which in common experience is regarded as having a reliable quality. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). When her report is considered together with appellant's presence and behavior at the crime scene shortly after the killing, the body of information as a whole was such that from it, a person of ordinary caution would be led to believe that appellant had been involved in the criminal activity at that apartment house resulting in the death of Mr. Placencia.

Assuming therefore, without explicitly deciding, that appellant was seized when transported from in front of the apartment house to the police station for further intensive interrogation, such seizure was justified by probable cause. Appellant points out that the police did not attempt at the suppression hearing or at trial to justify their conduct by claiming probable cause and that it would not therefore be proper to sustain their conduct on such ground on appeal. The hearing did focus on the facts and circumstances of which the police were aware at the time of the alleged illegal seizure and therefore provided a rational basis upon which to apply the legal theory of justification by probable cause, despite the reliance of the police on the justification that there had been no seizure. Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133.

Appellant next contends that the trial prosecutor sought to improperly influence the jury's sentence recommendation by urging consideration of inflammatory and irrelevant matter. In the separate hearing at which the jury decides whether or not to recommend the death penalty to the judge, it is improper for the prosecutor to attempt to inflame the passions and prejudices of jurors on a false basis, or to minimize the role of the jury to the point of encouraging a neglect of duty, or to imply that the prosecution or the police have some inside or special knowledge which would support the imposition of the death penalty. Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied, 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809 (1985). Under the federal Constitution, a sentence of death must be vacated where the trial prosecutor engages in misconduct before a sentencing jury which is so unfair and improper as to undermine the reliability of the sentencing decision. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). Indeed, whenever irrelevant and highly inflammatory material is injected at a sentencing hearing, an arbitrariness violative of the Eighth Amendment may result. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, reh'g denied, 483 U.S. 1056, 108 S.Ct. 31, 97 L.Ed.2d 820 (1987).

Prosecution witness Furnish lived in the house with appellant and appellant's mother and other children. Furnish testified on direct that on the evening before the crime, appellant showed him a lockblade knife with a brown handle and that Furnish then told appellant that “if he did it, he was liable to get the electric chair,” and asked appellant “why don't [you] just wait a little, you know, for a couple of days for [your] tax return check to come in.” Appellant's part of this conversation was not provided, but on cross-examination the witness said there had been no talk about Juan Placencia.

In final summation to the jury at both the guilt and sentencing phases, the trial prosecutor urged the jury to draw the inference from Furnish's testimony that appellant intended to rob and kill Placencia as early as that evening. In this argument, the prosecutor outlined the source from the testimony upon which he urged the inference of intent be made. It was therefore an interpretation of the evidence, and as such it was within the confines of ethical and proper conduct. There was no claim of special or personal knowledge. Swope v. State (1975), 263 Ind. 148, 325 N.E.2d 193, cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100. There was no improper reference to the possible existence of other crimes or to any future risk to others if the defendant was not put to death. Tucker v. Francis, 723 F.2d 1504 (11th Cir.1984), cert. denied, 478 U.S. 1022, 106 S.Ct. 3340, 92 L.Ed.2d 743 (1986). This was no blatant attempt to stir up the passions and prejudice of the jury by referring to irrelevant considerations or sensational materials. See Drake v. Francis, 723 F.2d 1504 (11th Cir.1984), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 738 (1986). There was no attempt to minimize the jury's role in deciding whether to recommend the death penalty. Indeed, here the comment was the type which jurors can understand and deal with completely. It did not approach the improper and inflamatory character of the victim impact statement condemned in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, reh'g denied, 483 U.S. 1056, 108 S.Ct. 31, 97 L.Ed.2d 820 (1987).

In final summation at the guilt phase of the trial, the trial prosecutor called for the jury to engage in the fight against crime and for justice and to strike a blow against evil and for the sanctity of the home. An argument of this sort, claiming that the jury owes it to the community to recommend the death penalty, amounts to misconduct. Bieghler v. State (1985), Ind., 481 N.E.2d 78, cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986). The danger of this type of argument is that it can be misunderstood by the jury as calling for the jury to convict the accused regardless of his guilt. Oricks v. State (1978), 268 Ind. 680, 377 N.E.2d 1376. Although this argument did pose such a danger, it was not such as to place appellant in a position of grave peril. Given the strength of the prosecution's evidence and the general nature of the patriotic remarks, the degree of impropriety and the probable persuasive effect on the jury's decision was no more than minimal.

The statements made by the trial prosecutor concerning the testimony of the witness Furnish and the duty of the jurors did not constitute cause for mistrial or undermine the reliability of the jury's death sentence recommendation contrary to the requirements of the Eighth Amendment.

The claim is next made that the death penalty is not appropriately applied in this instance. Appellant asserts that the aggravator alleged and found by the jury and court does not outweigh the overriding mitigating circumstances of his life history. Review by this Court of every death sentence is automatic and mandatory. The level of scrutiny is more intensive than for other criminal penalties, and the Rules for Appellate Review of Sentences apply as guides and not as limitations. Cooper v. State (1989), Ind., 540 N.E.2d 1216; Spranger v. State (1986), Ind., 498 N.E.2d 931, cert. denied, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 536 (1987).

The jury recommended that the death penalty be imposed. The judge declared in his sentencing order that the State proved beyond a reasonable doubt that appellant intentionally killed while robbing. The evidence manifestly proves this aggravating circumstance to a moral certainty beyond a reasonable doubt.

The judge also declared in his sentencing order that the State proved beyond a reasonable doubt that the several mitigating circumstances he found to exist were outweighed by the single aggravating circumstance. The mitigating circumstances found by the court were:

a. Appellant had no history of criminal activity as an adult, but this mitigator was lessened in weight by misconduct while a juvenile.

b. Appellant had a mental makeup which included diagnosed borderline personality disorders with aggressive behavior, tempered by a limited capacity to cope so as to do no harm to others.

c. Appellant was nineteen years of age. He lived as a child in an unstable environment. He lacked guidance, was mistreated, and did not have the social and learning skills to perform well in school. He was removed by court order from his home at fourteen and was kept in foster homes and institutions for four and a half years before rejoining his mother's household as an adult. This history was lessened in mitigating value by his failure to live up to household rules while living with others and by his proven ability to restrain his own aggression and hostility by taking walks.

On behalf of appellant, it is extensively argued that where a person's dangerous propensities are the product of his lack of care while growing up and not of his own conscious choices, such person is less deserving of the death penalty. Most would accept this proposition and the proposition that appellant's turbulent childhood is a significant mitigating circumstance. The trial judge did so, and we do likewise.

The ultimate question for the judge and jury was, and for this Court now is, whether, upon the statutory assumption that the death penalty can be appropriate for homicide, the mitigating circumstances here, namely, the lack of prior criminal conduct, a turbulent childhood, and borderline personality disorders, are outweighed by the aggravating circumstance here, namely, the intentional stabbing and killing of Juan Placencia in the course of robbing him. This judgment need not be made to a moral certainty beyond a reasonable doubt. Moore v. State (1985), Ind., 479 N.E.2d 1264, cert. denied, 474 U.S. 1026, 106 S.Ct. 583, 88 L.Ed.2d 565. Upon review, we find that all mitigating circumstances were properly and accurately determined and evaluated and that they are outweighed by the lone aggravating circumstance, which was also properly and accurately determined and evaluated. The sentence is not arbitrary or capricious and is not manifestly unreasonable.

In instructing the jury at the penalty phase of trial, the court gave the following as Final Instruction No. 5: Neither sympathy nor prejudice for or against the victim or the defendant in this case should be allowed to influence you in whatever recommendation you may make. Appellant objected and was overruled, and the instruction was read. Appellant tendered his own instruction which would have authorized the jury to be governed by sympathy and sentiment in arriving at their recommendation on the sentence.

This instruction is to be judged upon the basis of whether it “excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). It must not impermissibly restrain the jury in its statutory and Eighth Amendment function of determining and evaluating mitigating circumstances and making an individualized assessment of the appropriateness of the death penalty. California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987).

There are two considerations which render this instruction correct. First, it operates well so as to restrain the use of responses based purely upon emotion, prejudice or bias to the detriment of the defendant. Second, its restraint upon the consideration by the jury of compassionate factors to the benefit of the defendant would be understood by the jury as applying only to the extreme reaches of the human inclination for sympathetic response in light of the specific call of other instructions to the jury to consider mitigating circumstances such as emotional disturbance, minor participatory conduct, and impairment by mental defect, all of which circumstances have compassionate elements. It was not error to give this instruction.

It was balanced and did not undermine the reliability of the jury's recommendation. It is also to be noted that this instruction was given to a jury which does not sentence but only recommends and that the trial judge's findings reflect a full appreciation of the impact of appellant's misfortune as a child upon his moral blameworthiness.

Appellant claims next that the trial court erred in denying several challenges to the manner and time of filing amended charges of murder and robbery and an amended request for the death sentence. The amended charges and death request upon which appellant was ultimately tried reached their final and quiescent state six months before the commencement of the trial. Both the original and amended requests for the death sentence were based upon the intentional killing during the course of a robbery, pursuant to I.C. 35-50-2-9(b)(1), and were essentially the same. Both the two original and the two amended substantive counts were for the murder and robbery of the victim, Placencia. The original murder charge claimed a felony murder, charging that Placencia had been killed during a robbery, whereas the amended murder charge alleged outright intentional murder.

The original robbery charge claimed a repeated stabbing of Placencia, whereas the amended robbery charge alleged a repeated stabbing resulting in serious bodily injury. Under these circumstances, and to the extent that the filing of these amended pleadings was achieved without an initial hearing in conjunction with it, written notice to the defendant, court permission, or other requirements of the governing statute, I.C. 35-34-1-5, there is no likelihood that substantial rights were prejudiced in light of the similarity of the pleadings and the ample opportunity of the defense to reckon with them. To the extent that there is a purpose behind the governing procedures to protect the due process interests of the defendant, that purpose was satisfied despite any irregularity in the process.

Appellant also claims that the amended criminal charges were filed in the DeKalb Superior Court after the court granted a change of venue from the county. The record supports this claim; however, the record also discloses that the filing occurred during the period of time granted by the court for opposing counsel to agree upon a new county and before preparation of the transcript for dispatch. The general rule is that a court is divested of jurisdiction after granting a change of venue. 29 I.L.E. Venue § 18 (1960). Here the filing did not entail any exercise of jurisdiction by the DeKalb Superior Court. There is no authority to which our attention is directed declaring a filing of this sort a nullity.

Appellant also claims that a written death penalty request must be refiled each time the underlying murder charge is amended. Here, the existing amended death penalty request was not refiled with or after the filing of the amended murder and robbery counts. The death statute requires only that a page kept separate from the balance of the charging instrument allege at least one of the aggravating circumstances. There is no authority for a requirement such as appellant proposes, and we can envisage no legitimate interest of the appellant to be served by such a requirement.

It is next claimed on appeal that the court erred in refusing to give eight penalty phase final instructions tendered by the defense. The first is a quotation of Article I, § 18 of the Indiana Constitution. The others cover the subjects of the use by the jurors of their own experiences and their beliefs concerning the death penalty, the requirement that the recommendation must be based upon a conviction that aggravators outweigh mitigators, the prosecution's burden of proof, the restriction of the consideration to the lone aggravator, the definition of mitigating circumstances and addition of a list of facts which, if found to exist, would be proper mitigators, the discretion of the jury in determining and evaluating mitigating circumstances, and the use of sentiment and sympathy for appellant.

In considering whether any error results from the refusal of a tendered instruction, we must determine: (1) whether the instruction correctly states the law, (2) whether there is evidence in the record to support the giving of the instruction, and (3) whether the substance of the instruction is covered by other instructions which are given. Davis v. State (1976), 265 Ind. 476, 355 N.E.2d 836.

Article I, § 18 provides: The penal code shall be founded on principles of reformation, and not of vindictive justice. This Court held in Adams v. State (1971), 259 Ind. 64, 271 N.E.2d 425, by a vote of three to two, that the death penalty for murder was not violative of this provision. In Emory v. State (1981), Ind., 420 N.E.2d 883, the Court held that this provision did not foreclose a criminal system based on punishment. It does instead “reveal an underlying concern ... that, notwithstanding society's valid concerns with protecting itself and providing retribution for serious crimes, the State criminal justice system must afford an opportunity for rehabilitation where reasonably possible.” Fointno v. State (1986), Ind., 487 N.E.2d 140, 144.

In Denson v. State (1975), 263 Ind. 315, 330 N.E.2d 734, this Court held that it was not error to refuse this instruction, despite the fact that it was a correct statement of law, since the provision seems to be addressed to lawmaking bodies and would likely mislead or confuse a jury. That rationale would apply with greater force in the penalty phase of a capital case than it would in the guilt phase since the jury is being called upon to decide the propriety of a sentence which forecloses all possibility of reforming the defendant. There was no error in refusing the tendered instruction quoting this provision.

Appellant's tendered instruction on the use of sentiment and sympathy provided as follows: A decision to grant David Leon Woods mercy does not violate the law. The law does not forbid you from being influenced by pity for David Leon Woods and you may be governed by mere sentiment and sympathy for David Leon Woods in arriving at a proper penalty in this case.

You need not find the existence of any mitigating fact or circumstance in order to return a recommendation against death. This instruction was an incorrect statement of the law. It is contrary to the statute which requires the recommendation of death to be based upon the relative weight of aggravating circumstances and mitigating circumstances. I.C. 35-50-2-9(e)(2).

The substance of the remaining penalty phase instructions rejected by the trial court was adequately covered by the court's Instruction No. 10, which defined reasonable doubt, and by the court's Instructions Nos. 8 and 11, which tracked the statutes and pleadings and enumerated the statutory categories of mitigating circumstances, including the final general category of “any other circumstances appropriate for consideration.” I.C. 35-50-2-9(c)(8).

In its order changing the venue of this case from the DeKalb Superior Court to the Boone Superior Court, the judge included the following in his order:

The Court now has a telephone conference with The Hon. Paul H. Johnston [sic], Jr. of the Boone Superior Court, and ... he accepts the said request. The Court finds that the Prosecuting Attorney and Defendant have stipulated that the Hon. Paul H. Johnston [sic], Jr. shall remain as Judge and will agree upon him as Special Judge for any proceedings which might take place after January 1, 1985 in the event that the Hon. Paul H. Johnston [sic], Jr. would not be reelected to the Boone Superior Court.

Judge Johnson assumed jurisdiction on change of venue, but was not reelected. His successor, Judge Peyton, assumed jurisdiction over the case over appellant's objection. An interlocutory appeal was sought but did not result in a ruling on this matter.

The general rule is that the jurisdiction over cases filed in any given court, or coming into any given court from another county on a change of venue, is in that court. I.C. 35-36-6-2; Ind.R.Tr.P. 78. It is also a general rule that when a judicial office is vacated and a new judge assumes the office, such new judge assumes jurisdiction over all matters that were pending in the court before the former judge sitting as the regular judge. Cf. Ind.R.Tr.P. 79(15).

Here, Judge Johnson had jurisdiction over this pending case as the regular judge of the Boone Superior court. Since he was serving over this case as regular judge when he vacated the office, no occasion arose for the selection and appointment of a special judge pursuant to the stipulation of the parties. Judge Peyton had jurisdiction over this case from the moment he took office and was correct in retaining it despite the order of the DeKalb Superior Court.

Appellant next contends that the trial court erred in denying his challenge to the jury array on the basis that the jury commissioners excluded persons who had served as a juror within the preceding year. According to statute, persons with such prior service may not serve as petit jurors and are subject to challenge for cause. I.C. 33-4-5-7; I.C. 35-37-1-5. Appellant contends that there is no authority in the specific statutory provision governing the manner of selecting jurors, I.C. 33-4-5-2, to exclude persons with prior service from groups of prospective jurors and that the systematic and intentional exclusion of this particular class of people results in prospective juror panels which do not reflect a fair cross section of their communities as required by the Sixth Amendment.

Dealing first with the statutory interpretation problem, we find that I.C. 33-4-5-2 instructs jury commissioners upon the proper manner of selecting names of prospective jurors and that I.C. 33-4-5-7 deals with the legal qualifications for jurors. So considered, they are not in conflict but in tandem, one supplementing the other.

The Sixth Amendment guarantee of trial by jury carries with it the requirement that jurors be selected from fair cross sections of their communities and is violated by the systematic exclusion of distinctive groups of community members. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). State retention of the authority to make reasonable standards for juror qualification and exemption leaves jury lists representative of the community. Oricks v. State (1978), 268 Ind. 680, 377 N.E.2d 1376.

There are two probable purposes of the statutory disqualification of persons who have served in the recent past. The first is to prevent the same people from returning again and again to court as jurors. It is important to the fair operation of the jury system that there be no development and use of cadres of what can amount to professional jurors. It is conceivable that jurors who return time and again could come under the influence of and adopt the biases of court officers. Upon this consideration, the statutory disqualification is consonant with the fair cross section requirement.

The second probable purpose is to spread the hardship of jury service among members of the community. In Oricks, this Court held that the exemption of college students and teachers from jury service to relieve them of a special hardship was proper despite the loss of young and educated persons from the panels. Id. In like manner, the disqualification here is sustainable. Appellant's right to trial by jury before a jury selected from a fair cross section of the community was not violated by the disqualification applied here.

It is next contended that the trial court erred in excusing a juror midway through the trial. In conference with the court and counsel, a juror told of his medical problems including diabetes, a rash from high blood pressure medicine, and a cold. The defense objected to the court excusing the juror. The court then ordered the juror examined by a physician. Thereafter, the trial court announced in court that the juror had been taken to a hospital emergency room, examined by a physician and found to have a fever. Because of this and other medical problems, the physician was of the opinion that the juror was not physically able to continue serving. The court then excused the juror and ordered the first alternate juror to assume service on the jury. The defense objected again and moved for mistrial.

A ruling of the court excusing a juror and elevating an alternate is reviewable for an abuse of discretion. Ferry v. State (1983), Ind., 453 N.E.2d 207. Appellant contends that the failure of the court to place evidence in the record to show that the juror was physically unable to continue constituted such an abuse of discretion. Here, the court's efforts in examining the juror in the presence of counsel and announcing the results of his examination satisfied the court's duty to provide a record for review and an opportunity to the defense to be heard. There was no abuse of discretion.

Appellant next contends that his confession should have been suppressed upon his pretrial motion and in-trial objections. At 7:45 p.m., on Saturday, April 7, 1984, Detective Stump and Chief Custer took appellant from the Garrett Police Department to the state police post in Fort Wayne. Appellant's hands were cuffed in front. There was little conversation.

The events of day leading up to this point have been set out in detail above. Placencia was killed that Saturday morning at about 5:00 a.m. Appellant had been transported to the Garrett police station at about 10:00 a.m. He had waived his Miranda rights, had been interrogated at noon and again at 4:45 p.m., had persisted in maintaining his innocence and had agreed to take a polygraph test. Upon arriving at the post, appellant was turned over to the polygraph operator, was given his Miranda rights, and signed a written waiver at 9:11 p.m. He was tired at the time and said that he had slept eight hours

Thursday night and that had been his last period of sleep. During some questioning in the polygraph room with the operator, preliminary to the test, appellant broke down and gave a full confession. This confession was recorded, but was not introduced into evidence. Appellant was then turned back to Stump and Custer, who took him to an interview room, gave him Miranda rights again, which he waived in writing, and took a complete confession from him which was recorded. This recording of the confession was played to the jury.

The law governing the admissibility of confessions was stated in Ortiz v. State (1976), 265 Ind. 549, 553, 356 N.E.2d 1188, 1191 (citations omitted): A statement by an accused is not admissible against him if it is not voluntarily given. A statement made under circumstances requiring the giving of Miranda warnings is not admissible unless such warnings are given and a knowing and intelligent waiver of the rights involved is made.

In determining whether a statement was voluntarily given, we look to all the circumstances surrounding its giving to determine whether it was “induced by any violence, threats, promises, or other improper influence.” The same test determines whether a waiver of the Miranda rights has occurred. The burden is on the State to prove beyond a reasonable doubt the voluntariness of the statement or waiver. In reviewing the trial court's ruling on the voluntariness of a statement or waiver, we do not weigh the evidence, but determine whether there is sufficient evidence to support the trial court's finding.

Appellants correctly assert that the signing of a waiver form does not conclusively show a valid waiver. The testimony provided by the officers shows that on the occasion of each session of interrogation, appellant was given his Miranda rights and signed a written waiver. He had been detained for a total of about nine hours when he gave his confession. He was handcuffed only on the occasion of his transportation to the state police post. The police were often not visibly armed and never drew a weapon in his presence. He was provided with food, water and facilities.

During the nine hours, he was permitted to read the paper and play cards. There is no evidence that suggests that appellant was physically abused or subjected to prolonged interrogation sessions. Appellant testified that he was threatened during the 4:45 session. The record shows that in that session, the interrogators accused him repeatedly of lying and made threats that they were just going to charge him with murder and lock him up.

However, that matter is reduced in weight due to the fact that the drive to Fort Wayne intervened between it and the confession to the polygraph operator. The officers who drove appellant and the officer conducting the polygraph test were not the same officers as those who had conducted the 4:45 session.

We find that the trial court's overruling of appellant's motion to suppress and in-trial objections was proper and supported by sufficient evidence.

Appellant next contends that the trial court erred in denying three of his motions for continuance. On January 16, 1985, this cause was set for trial to commence on February 19, 1985. Counsel was present.

On February 7, 1985, appellant filed a motion for stay of proceedings because an interlocutory appeal was being sought in the Court of Appeals, attacking the jurisdiction of the trial judge. The motion was denied on February 11. On February 15, a motion for continuance was filed due to the fact that the courthouse had been closed from February 10 through February 14 because of a snow storm, which motion was denied on the first morning of trial. On February 23, a motion for continuance was filed because one of the two defense counsel was away from court interviewing witnesses. It was also overruled.

The granting or denial of a continuance is primarily a matter for the trial court, and the denial of one will be reviewed only for an abuse of discretion. Taylor v. State (1987), Ind., 515 N.E.2d 1095. Granting continuances in order to allow additional time for preparation is generally not favored in criminal cases and will be granted only if it is not disruptive and is in furtherance of justice.

In the pretrial period after the trial date was set and at trial, counsel for appellant was actively filing motions and conducting the affairs of the defense. There is no basis in the record upon which to conclude that additional time for preparation and consultation would have better equipped defense counsel to represent their client. Consequently there is no error shown.

The next question presented is whether the trial court was in error in not holding a hearing upon a pretrial suggestion of defense counsel that appellant was not competent to stand trial. Such a hearing is required if “the court has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense.” I.C. 35-36-3-1. The written suggestion was based upon some unspecified information from two persons and the claim that appellant had no recollection of the events of the night of the alleged killing. In response to the written suggestion, the court appointed two doctors to examine appellant. Each filed a report that appellant was competent to stand trial. Based upon this record, the trial court ordered that reasonable grounds were absent and that no hearing be held. The evidence clearly justified the court in not holding a hearing, as it supported adequate competency. Clifford v. State (1984), Ind., 457 N.E.2d 536.

Following the trial and before the final sentencing hearing before the court, the court did conduct a hearing upon the question of whether appellant was competent to stand trial and adjudged that he was. The record of this hearing incorporated prior testimony of professional persons who had examined appellant and had testified at the death sentence hearing before the jury, detailing his chronic lack of self-esteem and depression. The record also included observations of appellant's demeanor and the assertion of trial counsel in the written suggestion of incompetency that he was unable to recall the significant events of the alleged murder. Despite the claimed loss of memory, the record clearly provided a reasonable basis for the determination of competency. Ritchie v. State (1984), Ind., 468 N.E.2d 1369.

Appellant next questions the denial of his motion for mistrial. Two separate officers who testified for the prosecution referred in their testimony to Exhibit 7 as the murder weapon. On each occasion, the court sustained an objection to the statement and admonished the jury to disregard the reference. On the second occasion, a motion for mistrial was made and denied.

The granting of a mistrial lies within the discretion of the trial court and a denial will be reversed only where an abuse of discretion can be shown. Collins v. State (1984), Ind., 464 N.E.2d 1286. Only if the statement was so prejudicial that it placed the defendant in grave peril must the case be reversed. Morse v. State (1980), 274 Ind. 652, 413 N.E.2d 885. When a jury is admonished to disregard a trial event, or if other reasonable curative measures are taken, no reversible error will ordinarily be found. Ramos v. State (1982), Ind., 433 N.E.2d 757.

It was improper for the State's witnesses to testify that the exhibit, a knife, was in fact the murder weapon. However, there was testimony placing this knife in possession of appellant Woods at the time the victim was stabbed, and a wire in the apartment had been cut. After the killing, appellant's accomplice saw blood on the knife when appellant placed it in a bag to be thrown in a creek. The inference that this exhibit was the murder weapon was there, and while that inference could have been suggested by the prosecutor in final summation and could have been made by the jury, it should not have been drawn by the officers in their testimony. We believe, however, that the jury received the testimony as an interpretation by the officers of the evidence presented at trial and, therefore, would have therefore been willing and able to comply with the admonition by the court to disregard it and draw an independent inference.

The next issue involves the admission of State's Exhibit 6, two black capsules taken from appellant when interrogated at the Garrett police station. The chemist tested the capsules and found caffeine. Defense counsel objected on the basis that they lacked relevance and created prejudice. The objection was overruled.

The capsules and their test results were relevant as they substantiated the testimony of witnesses who said that appellant behaved in a nervous and troubled manner on the night in question. As stated in Magley v. State (1975), 263 Ind. 618, 641, 335 N.E.2d 811, 825, “The fact that a piece of evidence makes an inference slightly more probable suffices to show its relevance.” The relevance was appreciable and the prejudicial effect was not great in light of the fact that caffeine is a common lawful substance. The threat to the fairness of the trial from any speculation by the jury about overuse of caffeine by appellant was minimal and did not make the items inadmissible.

The next issue involves the ruling of the court refusing to bar the accomplice Sloan from testifying at trial. In preliminary questions outside the presence of the jury, Sloan testified that he had entered a plea of guilty to aiding in a murder and aiding in a robbery and was at the time awaiting sentencing in the DeKalb Superior Court. He denied knowing that his testimony would be considered as mitigating in his case. Defense counsel presented a transcript of a hearing at which the judge in DeKalb County said the State would consider Sloan's testimony as mitigating at sentencing. The State then agreed with the judge's statements. Sloan persisted in disclaiming any knowledge of such an agreement, even though he was handed a copy of the transcript to read. At one point, it was obvious that he did not know the meaning of the word “mitigating.”

Defense counsel argued that Sloan's testimony was not voluntary and sought to exclude it. The court allowed Sloan's testimony. During the testimony at trial, Sloan repeated his former disclosure, namely that he had pleaded guilty but insisted again that there was no agreement that he would be treated leniently if he testified.

The general rule is that an accomplice is a competent witness and the fact that the accomplice has been induced to testify by a benefit extended to him by the state goes only to weight and credibility. Coleman v. State (1975), 264 Ind. 64, 339 N.E.2d 51. Here, the general rule applies to sustain the court's ruling that the witness should be permitted to testify. The testimony of Sloan before the jury was that there had been no agreement that he would receive a reduced sentence for his testimony, and he repeated that he wished to waive his privilege against self-incrimination and was giving his testimony voluntarily. The defense was well equipped to confront this witness and did so, albeit with limited success. There was no legal basis upon which the court might have barred this witness.

Officer Kleeman testified that he was acquainted with the victim, Juan Placencia, and had found his body in a chair in the apartment in Garrett. Deputy Coroner Carpenter removed the body from the apartment and it was either in his physical custody or locked in the morgue, to which he alone had a key, until the commencement of the autopsy attended by Deputy Coroner Souder, a physician. Over objection, Souder was permitted to testify that the body was that of Juan Placencia, and the death certificate signed by him showing that one Juan Placencia died of stab wounds was admitted as Exhibit 14.

The objection to the identification testimony and the exhibit was that the chain of custody of the body was defective and the testimony was based on hearsay. There was also a motion for directed verdict at the close of the State's case for failing to prove corpus delicti. The testimony of Officer Kleeman alone established corpus delicti, namely that Juan Placencia had died from a violent attack with a knife. As recited above, the body here was in the custody and control of Carpenter from the chair in which it was found to the operating table upon which the examination commenced.

The autopsy commenced four hours after the body was discovered. There was no link in the chain of custody even partially missing and therefore no error. Coleman v. State (1975), 264 Ind. 64, 339 N.E.2d 51. Souder testified that he based his identification of the body as that of Juan Placencia upon his comparison of the body with a photograph upon a driver's license bearing the name of Juan Placencia. However, such statement was included in the certified certificate of death, which certificate was properly admitted as a public record. Wright v. State (1977), 266 Ind. 327, 363 N.E.2d 1221. Therefore any error in permitting the maker of that certificate to restate what was in evidence in writing could not but be harmless. There was no error in overruling the motion for directed verdict or in overruling the objections to such evidence.

During the course of the trial, the prosecutor introduced in evidence four photographs. Two of the exhibits were color photographs of the body of the victim in the location and condition in which it was found, collapsed back in a stuffed chair. The body is clothed in an undershirt and jeans. The shirt is soaked in blood and many wounds are evident. The other two exhibits are color photographs of the body of the victim stretched out on a slab in the morgue. In one, the shirt has been removed to uncover the multiple wounds to the torso. There are no indications in these last two photographs of any cutting done by the pathologist. Defense counsel objected to the introduction of the four photographs on the basis that their prejudicial effect would outweigh their probative value.

Photographs of the crime scene and of the body in a homicide case are properly admitted so long as they are to some extent competent and relevant aids to the jury in orienting themselves and understanding the evidence. Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482. These photographs were useful in helping to illustrate the location of the victim within the apartment as he was attacked the second time. The morgue photos were useful in showing the location and number of wounds. None were gruesome or introduced an improper element of artificiality and the trial court did not err in admitting them into evidence.

Appellant next contends that the trial court erred in admitting eleven exhibits: a television, a baseball bat, a knife, socks, a cap, plastic bags, a billfold, a tray, a television cable, money, and a taped statement of appellant. The objection lodged to these exhibits was in each instance the failure of the prosecution, as proponent of them, to establish an adequate chain of custody.

The purpose of requiring a continuous chain of custody from the time an item comes into the possession of the police to the admission at trial is to lay a proper foundation connecting the evidence with the accused and to negate any substantial likelihood of tampering, loss, substitution, or mistake. Arnold v. State (1982), Ind., 436 N.E.2d 288. The more susceptible an item is to being substituted or altered, the more stringent the foundation. Coleman v. State (1975), 264 Ind. 64, 339 N.E.2d 51. However, all that is necessary is a reasonable showing that the evidence reached the trier of fact in an undisturbed condition. Russell v. State (1986), Ind., 489 N.E.2d 955.

All of the challenged items were common in character and unremarkable in evidentiary value. There was evidence presented from which one could infer the location of each item and the persons having possession of each item from the time of acquisition by authorities to the time of trial. The television was shown as having been acquired from the persons who purchased it from appellant and Sloan and passing through the hands of various officers, and was identified in court by the children of the victim, who bought it for him. The serial number matched the number on a purchase receipt for a television found in the victim's apartment. The bat was picked up in appellant's yard, passed through the hands of various officers, and was identified by Sloan as looking like the bat he threw there that morning. The knife, socks and stocking cap were in a plastic bag when recovered from a creek by a police diver. He put his initials on the knife. The items passed through the hands of several officers and at trial the diver identified the knife by his initials, and he and Sloan testified that the remaining items looked like the ones they had previously seen.

The wallet, tray, and antenna wire were picked up and held by one Jagoda and transferred to and held by one Zauner, who gave them to Stump who brought them to court for trial. While being held by Zauner, they were removed four times, once by Stump for a day, once by Stump for a month while they were being tested for blood, once for a day while they were being tested for fingerprints, and once by Jagoda who took them to court prior to trial. The cash money passed through the hands of several officers after having been placed in a sealed envelope. The tape recording of appellant's statement was taken by the officer who conducted the interrogation and placed in the state police property room. It was checked out and returned several times before being checked out to be taken to trial. The officer who took the statement testified at trial that he had just listened to it, and that it was a complete and accurate recording of his interview with appellant.

Given the nature of these items of evidence and their evidentiary use, the record before us is adequate to show a continuity of possession and the absence of significant possibility of alteration, substitution, or mistake with respect to them. The chain of custody argument is not sustained.

The next specification of error relates to the denial of appellant's motion for individual, sequestered voir dire of prospective jurors. Appellant contends that group voir dire causes one juror to be influenced by being present with and hearing the opinions of others and that, in a capital case, the heightened need to have an unbiased and impartial jury warrants the additional safeguard.

As appellant recognizes, this issue has been before the Court before and rejected. Wisehart v. State (1985), Ind., 484 N.E.2d 949, cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986); Lowery v. State (1985), Ind., 478 N.E.2d 1214, cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). The rationale of the rule suggested by appellant is insufficiently persuasive to warrant the general adoption of such a procedure. The Court has made it clear, however, that the trial court retains discretion to require such procedures should special circumstances arise. No special circumstances were present here.

Appellant next contends that it was error to give the State's tendered Instruction No. 3 at the guilt phase of the trial over his objection that it was incorrect, argumentative, and that the subject of it was covered in the standard reasonable doubt instruction. The instruction stated:

The doctrine of reasonable doubt applies only to the ultimate question of the defendant's guilt or innocence and the essential facts that establish it[,] and the mere fact that some subsidiary matters are but imperfectly proved does not make it the matter of the jury to acquit if the ultimate question of the defendant's guilt is established to your satisfaction beyond a reasonable doubt.

The Due Process Clause requires that a conviction be based upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The instruction satisfies this constitutional requirement and serves the further legitimate purpose of guiding the jury in the manner of dealing with imperfectly proved subsidiary matters. In Gramm v. State (1978), 268 Ind. 492, 376 N.E.2d 1120, this Court held that the decision to give an instruction nearly identical to Instruction No. 3 was not error. Moreover, it is to be noted that the jury was instructed that the defendant must be found not guilty if the State failed to prove every essential element of the charges beyond a reasonable doubt. The instruction was not subject to the defects identified in the objection, and there was no error.

After the jury returned its recommendation of the death sentence, and before the court did sentence, appellant requested that he be given a psychiatric examination. Appellant claims that the trial court's denial of this motion was error. The court is authorized by statute to order a physical and mental examination after conviction and prior to sentencing. I.C. 35-4.1-4-10. However, the decision not to do so is reviewed under the abuse of discretion standard. This Court erected this review standard in Alleyn v. State (1981), Ind., 427 N.E.2d 1095, when reviewing a prior statute of like import, and we see no reason to apply a different standard in regard to the present statute.

Here appellant had been examined in the early stages of the pretrial period, and again a few days before trial, to determine his competence to stand trial. The court did conduct a hearing, after trial and before court sentencing, upon the question of whether appellant was competent to stand trial. Based on the results of the prior testing and on the court's observations of appellant, the court determined that appellant was competent and additionally denied his request for further examination. The record of the proceedings from that hearing provide a reasonable basis to support the court's decision not to have appellant examined again.

Appellant argues that he was subjected to the stress of the guilt and penalty phases of the trial, that he was taking medication during trial, that he was taken to a hospital immediately after the jury returned its recommendation, and that he was under close observation in his cell. The trial court was monitoring this situation and was in the position to assess these events as they may have occurred and influenced the mental condition of appellant, and we find no abuse of discretion under these circumstances. We also find that the record of the post-trial hearing on competence was an adequate basis, consistent with due process, for the court to proceed with the sentencing hearing without further medical examinations and thereafter to evaluate the possible mitigating circumstances related to appellant's mental condition. Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

After sentencing, the court appointed one of appellant's two trial counsel to prepare the motion to correct errors and denied a request for the other attorney to assist. He now contends that this was error. The proposition that the defendant in a criminal case is entitled to counsel at public expense if necessary for the prosecution of a motion to correct errors needs no citation of supporting authority. We have, however, said that in a capital case, where there is no waiver of appeal and no waiver of counsel, the defendant is “entitled to the fullest assistance of counsel at every critical stage of this appeal.” Lowery v. State (1982), Ind., 434 N.E.2d 868, 871, cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986).

It is the duty of the trial judge to select and appoint counsel to represent a criminal defendant who is without means to employ one. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); German v. State (1978), 268 Ind. 67, 373 N.E.2d 880. In such circumstances, the defendant does not have the right to counsel of his own choice. Harris v. State (1981), Ind., 427 N.E.2d 658. The trial court's duty here was to appoint counsel who could provide reasonably effective assistance with regard to the preparation and proper prosecution of a motion to correct errors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial court concluded that the single defense counsel he selected had the skill and knowledge to prepare and prosecute an adequate motion.

There are no special considerations presented in support of this appellate claim. We are cognizant, however, of the growing belief that two trial counsel are necessary for a complete defense in a capital case. While there are valid reasons for this belief, those reasons do not apply with equal force with respect to the job for which lone counsel was appointed in this case. For the most part, counsel preparing a motion to correct errors gives consideration to the record and any newly discovered evidence. Trial counsel, by contrast, must deal with and prepare pleadings and motions, meet multiple time limitations, conduct investigations, negotiate with counsel for the State, meet with the court, and prepare for and attend the trial. We hold that the trial court's decision was entirely reasonable and resulted in no appreciable harm to appellant's rights.

Appellant next claims that the court committed error when it considered improper aggravating factors in the weighing process resulting in the final decision to impose the death sentence, and by failing to personally conclude that the death sentence was appropriate punishment. In the court's findings, three aggravators were found, namely, the one alleged, with the other two being the age and physical infirmity of the victim. The predicate for this claim is nevertheless not present in the record.

The record shows that the trial judge combined the record and processes of sentencing for the robbery conviction and the homicide conviction in one finding and order. The order ended with two separate sentencing paragraphs, one assessing fifty years for robbery and the other assessing death for murder. Each of the classes of mitigating circumstances enumerated in the death sentence statute are given discrete consideration. In describing the final weighing process by which the trial court decided to impose the death sentence, the judge said: The court finds the State in requesting the death sentence has proven beyond a reasonable doubt the aggravating circumstance alleged and that the mitigating circumstances which exist are outweighed by the aggravating circumstance.

It is clear from the use of the singular “aggravating circumstance” at two crucial points in this finding that the trial court restricted itself to determining and weighing the lone aggravating circumstance pleaded by the State and enumerated in I.C. 35-50-2-9(b)(1). This appellate claim can therefore not be sustained. It is also clear from the syntax of this recitation that the court made a personal finding and was not functioning in a review mode as to the jury's recommendation.

Appellant next claims that the trial court committed error when denying his motion to dismiss the death penalty allegation predicated on multiple grounds. The claims asserted were that the death penalty and death by electrocution are violative of the Eighth Amendment of the United States Constitution, and Article I, § 18 of the Indiana Constitution. As appellant acknowledges, these broad claims have previously been rejected. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, reh'g denied, 429 U.S. 875, 97 S.Ct. 198, 50 L.Ed.2d 158 (1976); Adams v. State (1971), 259 Ind. 64, 271 N.E.2d 425.

Appellant's motion also asserted, and the trial court also rejected, claims challenging the Indiana statute on the basis that it provides no standard for finding mitigating circumstances, provides no guidance on how to weigh the mitigating circumstances versus aggravating circumstances, does not require the jury to make findings, and does not provide any meaningful standard upon which to base the death decision. As appellant acknowledges, these claims have been considered by this Court and decided adversely to his position. Resnover v. State (1984), Ind., 460 N.E.2d 922, cert. denied, 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160; Williams v. State (1982), Ind., 430 N.E.2d 759, cert. denied, 459 U.S. 808, 103 S.Ct. 33, 74 L.Ed.2d 47, reh'g denied, 459 U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 626.

Appellant also asserts that the aggravating circumstance, intentionally killing while committing an enumerated felony, defined in I.C. 35-50-2-9(b)(1) and applied in this case, is unconstitutional because it does not distinguish in a meaningful way those who should be executed and those who should be permitted to live. The substantially contemporaneous presence of the intent to kill and the intent to commit one of the serious enumerated felonies is the gravamen of this aggravating circumstance, and it serves to place the person convicted of murder as an initial matter in the class of those who are subject to the death sentence. It is not unconstitutional. Brewer v. State (1981), 275 Ind. 338, 417 N.E.2d 889, reh'g denied, 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384 (1982); Judy v. State (1981), 275 Ind. 145, 416 N.E.2d 95.

Appellant next contends that it was error for the trial court to order the incorporation of all of the trial evidence from the guilt phase trial into the penalty phase trial over his objection and to instruct the jury that it could consider such evidence in making its sentencing recommendation. Appellant argues that there is much in this body of evidence upon which the jury might seize and use to support its own finding of an uncharged or illegal aggravating circumstance and add the weight of that to the aggravator side of the scale when determining the sentence.

The use of all of the evidence introduced at the trial stage by the jury at the jury sentencing hearing is expressly authorized by statute. I.C. 35-50-2-9(d). The process was sanctioned in Smith v. State (1985), Ind., 475 N.E.2d 1139. Furthermore, the jury does not receive this trial evidence to be used in its discretion, but is instructed by the court on the use to which it may properly be put at the penalty stage trial. In the penalty phase instructions, only one aggravating circumstance was stated and defined, namely the one alleged by the State, and the jury was expressly restricted to consideration of that one. Accordingly, the incorporation of all of the trial evidence into the penalty phase trial before the jury did not create the danger of arbitrariness or capriciousness posed in this argument.

Appellant filed a motion to disallow consideration of robbery as an aggravating circumstance in the penalty hearing for murder. The motion was predicated upon the Fifth Amendment guarantee against double jeopardy, made applicable to the states through the Fourteenth Amendment and Article I, § 14 of the Indiana Constitution. The motion was denied. Such guarantees protect against a second prosecution for the same offense after conviction and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

Appellant contends that he is being punished twice for the robbery. The premise for this conclusion is that both the fifty-year sentence and the sentence of death are based upon the same robbery, namely that of Juan Placencia. The commission of a robbery is an essential element of the aggravating circumstance of committing an intentional killing in the course of committing a robbery, and thus an indispensable element for the imposition of the death penalty.

Pursuant to the Indiana death sentence statute, an aggravating circumstance serves to identify those convicted of murder who may be subjected to the death penalty. I.C. 35-50-2-9(b)(1). An aggravating circumstance, having served this selection function, also serves upon discrete evaluation as a balancing element, the weight of which must be determined and measured against mitigating circumstances in the final process of deciding whether death is deserved. I.C. 35-50-2-9(e)(2). Appellant is therefore correct in asserting that this sentence of death and this sentence of fifty years both rest upon the commission of the same robbery, the former resting in essential part upon it, and the latter resting wholly upon it.

Under such circumstances, both sentences cannot stand consistent with the guarantee against twice being punished for the same offense. The appropriate remedy for this violation should be the same as that which applies when two contemporaneous crimes are deemed merged because the commission of one has played an essential role in determination of guilt of the commission of the other, or the one is a lesser and included offense of the other. In such circumstances, the conviction and sentence for the lesser offense is vacated. Eddy v. State (1986), Ind., 496 N.E.2d 24; Bevill v. State (1985), Ind., 472 N.E.2d 1247; Bean v. State (1978), 267 Ind. 528, 371 N.E.2d 713. We therefore hold that there is a basis in this argument for vacation of the sentence of fifty years for robbery but not the conviction for robbery; however, there is no basis here for setting aside the sentence of death.

Appellant next claims that the trial court committed error in denying his motion to dismiss the death penalty request, which motion was based upon the assertion that the death penalty statute was being applied to him in a discriminatory manner. The factual premise for this argument is that the prosecutor did not request the death penalty when prosecuting charges against appellant's two accomplices arising out of this same incident and when prosecuting two other unrelated homicide cases arising in the same county.

The claim of discriminatory prosecution was recognized by this Court as a legitimate one in Love v. State (1984), Ind., 468 N.E.2d 519, cert. denied, 471 U.S. 1104, 105 S.Ct. 2335, 85 L.Ed.2d 851 (1985). There the claim was based upon the right to the equal protection of the laws, and the factual predicate was the assertion that state authorities were engaged in prosecuting black inmates who had engaged in a prison riot while granting immunity to white inmates who had done so.

There the trial court granted a pretrial hearing and resolved the issue against the defense. Here no hearing was held. Also, in the case at bar, by contrast, there is no claim that the prosecutor engaged in exercising his prosecutorial discretion so as to discriminate on the basis of race, religion, sex, or similar ground. From the record and the face of the motion to dismiss, this Court knows that appellant was the most culpable of the group of three, in that he actually inflicted the fatal wounds. Furthermore, we do not find that the fact that a prosecutor should exercise his discretion in a different manner in other unrelated homicides, though they may have some factual similarities, constitutes the basis for a valid discrimination claim. Consequently there was no error in denying the motion and in doing so without holding a hearing.

The next assertion is that the trial court violated the death sentence statute, and consequently denied appellant due process, by permitting the prosecutor to introduce rebuttal evidence at the penalty phase hearing before the jury. Appellant objected, asserting that the prosecutor should not be permitted to introduce evidence in rebuttal since it might constitute additional aggravating circumstances. The argument on appeal is dissimilar in that it is a complaint about the introduction of rebuttal evidence which tended to disprove mitigating circumstances shown by appellant's witnesses. The State is correct that the error claimed in this argument on appeal was not preserved by a timely and proper objection. Beland v. State (1985), Ind., 476 N.E.2d 843; Thomas v. State (1976), 264 Ind. 581, 348 N.E.2d 4.

In light of the fact that this is a capital case, the death sentence statute has been read in consideration of this claim, and the Court reads it as permitting the prosecution to introduce rebuttal evidence tending to disprove mitigating circumstances shown by the defendant's evidence. The statute in I.C. 35-50-2-9(d) calls for a hearing to be held having most of the hallmarks of a trial on the question of guilt or innocence. New and additional evidence is to be presented and the standard of beyond a reasonable doubt is to be applied. The determination that death is deserved is intended by the legislature to have the highest level of integrity and reliability which the criminal justice system is capable of producing. The statute specifically states that “[t]he defendant may present any additional evidence” relevant to the aggravating circumstances alleged or any of the mitigating circumstances permitted by the statute. Id. There is no express disallowance of rebuttal evidence and, in light of the statute as a whole and its purpose, it is proper to permit such evidence.

Appellant next asserts that the trial court erred by denying his motion to dismiss the death penalty request because it was not brought by a grand jury indictment. Appellant acknowledges that this claim, based upon the Fifth Amendment, was decided adversely to his position in Bieghler v. State (1985), Ind., 481 N.E.2d 78, cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986). There is no new authority or rationale presented upon which a different decision might rest. We therefore reaffirm the holding in Bieghler.

We affirm the convictions for robbery and murder and the imposition of the sentence of death.

SHEPARD, C.J., and GIVAN, PIVARNIK and DICKSON, JJ., concur.

Woods v. State, 701 N.E.2d 1208 (Ind. November 3, 1998) (PCR)

Defendant was convicted in the Superior Court, Boone County, Donald R. Payton, J., of knowing and intentional killing, robbery, and serious bodily injury, and sentenced to death. Defendant appealed. The Supreme Court, 547 N.E.2d 772, convictions and imposition of death sentence, and subsequently affirmed on rehearing, 557 N.E.2d 1325. Defendant petitioned for postconviction relief. The Superior Court, Boone County, David A. Ault, Special Judge, denied petition, and defendant appealed. The Supreme Court, Boehm, J., held that: (1) claim of ineffective assistance of trial counsel, if not raised on direct appeal, may be presented in postconviction proceedings, and (2) court-appointed defense counsel's conflict of interest did not adversely effect defense counsel's representation of defendant. Affirmed.

BOEHM, Justice.

David Leon Woods was convicted of murder and robbery and sentenced to death. He appeals the denial of his petition for postconviction relief challenging the effectiveness of his trial counsel. This case presents a frequently encountered issue. The trial court found that the claim of ineffective representation was waived for failure to raise the issue on direct appeal. Woods contends that the trial record was not sufficiently developed to assess the merits of this claim on direct appeal. In brief, although ineffective assistance occasionally lends itself to resolution on direct appeal, we hold that a Sixth Amendment claim of ineffective assistance of trial counsel may be presented for the first time in a petition for postconviction relief. However, if ineffective assistance of trial counsel is raised on direct appeal, it will be foreclosed in postconviction proceedings. Turning to the merits of Woods' claim, we affirm the trial court's denial of relief.

Background and Standard of Review

In the early morning hours of April 7, 1984, Woods went to seventy-seven-year-old Juan Placentia's apartment in Garrett, Indiana and stabbed him to death. Woods and accomplice Greg Sloan then took Placentia's television and later sold it. The full account of these crimes is outlined in Woods' direct appeal affirming the convictions and sentence. Woods v. State, 547 N.E.2d 772 (Ind.1989), aff'd on reh'g, 557 N.E.2d 1325 (Ind.1990). Because Woods appeals from a negative judgment, this Court will reverse the denial of postconviction relief only if the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court. Spranger v. State, 650 N.E.2d 1117, 1119-20 (Ind.1995). In this review, findings of fact are accepted unless “clearly erroneous,” Ind. Trial Rule 52(A), but no deference is accorded conclusions of law. State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind.1996), reh'g granted in part, 681 N.E.2d 181 (Ind.1997), cert. denied, 522 U.S. 1119, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998). The postconviction court is the sole judge of the weight of the evidence and the credibility of witnesses. See, e.g., Stewart v. State, 517 N.E.2d 1230, 1231 (Ind.1988).

I. Woods' Principal Ineffectiveness Claim

Four months before trial began, Woods' court-appointed attorney, Charles Rhetts Jr., was allowed to withdraw from the representation due to a possible conflict of interest. Allen Wharry and Douglas Johnston replaced Rhetts and defended Woods at trial. As explained in Part VI below, Woods now argues that Rhetts' conflict of interest and failure to disclose the details of the conflict to Woods or his new lawyers tainted the entire trial. After Woods was convicted, Wharry filed a motion to correct error. Under the law at that time, this motion controlled the issues available on direct appeal. Ward v. State, 519 N.E.2d 561, 562 (Ind.1988). No claim of ineffective assistance was raised in the motion. New counsel was then appointed to represent Woods on direct appeal.

The postconviction court found that any claim of ineffective assistance based on the conflict was waived for failure to present the issue on direct appeal. In this appeal, the State contends that even if ineffective assistance was not waived, the claim fails on its merits. Woods maintains that the claim is available on collateral review because the facts supporting the claim-the details of the conflict-were not apparent from the trial record on direct appeal. For this reason, he contends that successor trial counsel Wharry cannot reasonably have been expected to present the issue in the motion to correct error so as to preserve it for direct appeal.FN1 Woods also raises other grounds to support his claim of ineffective assistance.

FN1. Woods alternatively argues that because trial counsel Wharry filed the motion to correct error, he could not have been expected to allege his own (or co-counsel Johnston's) ineffectiveness. Majors v. State, 441 N.E.2d 1375 (Ind.1982). Because we view ineffectiveness of counsel as an issue ultimately turning on the overall performance of counsel, where more than one attorney is involved, it is the collective performance that counts. For this reason, Wharry's inability to attack his own performance arguably precluded his raising ineffectiveness in the motion to correct error. However, in view of the holding today, we need not resolve that point even if the only issue supporting the claim related to alleged acts or omissions of Rhetts, not Wharry.

*****

VI. Merits of the Conflict of Interest Claim

Because Woods did not challenge the adequacy of his trial representation on direct appeal, Woods v. State, 547 N.E.2d 772 (Ind.1989), aff'd on reh'g, 557 N.E.2d 1325 (Ind.1990), his ineffective assistance claims are not waived. With respect to the merits, Woods argues that he was denied effective assistance of counsel because his first trial counsel, Charles Rhetts Jr., had a conflict of interest. Woods was charged with murder and robbery on April 9, 1984 and the State soon filed a request for the death penalty. Citing an undeveloped possible conflict of interest because he had previously represented an expected witness for the State in a different matter, Rhetts requested a conference with the court.

A meeting in the trial court's chambers was also attended by the prosecutor. Successor counsel Allen Wharry was initially at the meeting but left the room after Rhetts asked that Wharry not be present for the disclosure. In Wharry's absence, Rhetts told the trial court that the witness in question was Woods' mother. Rhetts later explained to the postconviction court that he believed he could not reveal even the fact of his prior representation of the mother to Wharry, much less any details of the representation.

On October 25, 1984, the court permitted Rhetts to withdraw. The court did not hold a hearing on the record or otherwise inform Woods or his new lawyers (Wharry and co-counsel Douglas Johnston) of the nature of the conflict. All they knew was that Rhetts had been allowed to withdraw due to a possible conflict. Opening statements in the trial began four months later on February 22, 1985. As expected, the mother testified for the State regarding her son's involvement in the crimes.

Woods' argument, although not a model of clarity, appears to consist of four main assertions: (1) Rhetts' disclosure of the nature of the conflict in general terms in the presence of the prosecutor, but not to Woods or his new lawyers, gave the State an unfair tactical advantage in preparing to question Woods' mother; (2) Rhetts, presumably due to the conflict, did little investigation or other preparation for trial; (3) the conflict tainted the rest of the proceedings because the time Rhetts dawdled away before disclosing the conflict was charged to Woods, leaving Wharry and Johnston with only a few months to prepare for trial; and (4) the new lawyers' failure to discover the conflict constituted ineffective assistance. The State responds that Woods received effective assistance because Wharry and Johnston rendered conflict-free representation after Rhetts withdrew and the conflict did not affect Rhetts' or the latter lawyers' performance.FN23

FN23. The postconviction court is required to make specific findings of fact and conclusions of law on all issues presented in the postconviction petition to facilitate meaningful appellate review. Ind. Post-Conviction Rule 1(6); State v. Van Cleave, 681 N.E.2d 181 (Ind.1997), cert. denied, 522 U.S. 1119, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998). The court here held Woods' conflict of interest argument to be waived for failure to raise the issue on direct appeal. Faced with no findings on the merits, we can remand for further proceedings in the postconviction court, as in Van Cleave, or rule on the merits of the claim. Because the facts underlying the claim are not in dispute and the matter is fully briefed by both sides, we rule on the merits in the interests of judicial economy. Lowe v. State, 455 N.E.2d 1126, 1128 (Ind.1983). “The issue is sufficiently presented for our review in accordance with the purposes of the post-conviction rule.” Shackelford v. State, 486 N.E.2d 1014, 1018 (Ind.1986).

The federal constitutional right to effective assistance of counsel necessarily includes representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). To establish a violation of the Sixth Amendment due to a conflict, a defendant who failed to raise the objection at trial must demonstrate that trial counsel had an actual conflict of interest and that the conflict adversely affected counsel's performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (discussing Cuyler ). Once the two prongs of Cuyler are met-actual conflict and adverse impact-prejudice is presumed. Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). An adverse effect on performance caused by counsel's failure to act requires a showing of (1) a plausible strategy or tactic that was not followed but might have been pursued; and (2) an inconsistency between that strategy or tactic and counsel's other loyalties, or that the alternate strategy or tactic was not undertaken due to the conflict. Winkler v. Keane, 7 F.3d 304, 309 (2d Cir.1993) (adopting test followed by First and Third Circuits). See also Cates v. Superintendent, Indiana Youth Center, 981 F.2d 949, 955 (7th Cir.1992) (“The premise of a defendant's claim that he was denied conflict-free assistance ... must be that his lawyer would have done something differently if there was no conflict.”).FN24

FN24. Cuyler is one of many Supreme Court cases dealing with the particular conflict of interest concerns presented by joint representation of co-defendants in the same proceeding. See also Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Our decisions, however, have applied Cuyler to other factual situations involving the representation of a defendant by a lawyer who had previously represented prosecution witnesses. See, e.g., Spranger v. State, 650 N.E.2d 1117, 1124 (Ind.1995); Whittle v. State, 542 N.E.2d 981, 985-87 (Ind.1989). So has the Supreme Court. See Burden v. Zant, 510 U.S. 132, 114 S.Ct. 654, 126 L.Ed.2d 611 (1994) (counsel represented defendant and prosecution witness at the same time before trial). Accordingly, Cuyler is the proper standard to apply to Woods' claim. Some federal circuits regard Supreme Court doctrine on conflicts of interest as universally applicable to all conflicts situations. United States v. Levy, 25 F.3d 146, 153 n. 5 (2d Cir.1994).

The State asserts that Rhetts' predicament did not rise to the level of an “actual” conflict because he never questioned Woods' mother under oath. Indeed, Rhetts explained in postconviction that he was aware of the possibility of the conflict months before he withdrew, but did nothing because he believed the conflict would not be a problem until trial approached. Whether the conflict was “potential” or “actual” is academic because, even assuming an actual conflict,FN25

Woods has not established an adverse effect on his counsel's performance. First, he has not explained what the State could have learned at the meeting in which Rhetts asked to withdraw that so upset the possibility of a fair trial. Rhetts disclosed no details of the prior representation. Second, contrary to Woods' contention, Rhetts did not sit idle for the six months that he was on the case.

Although he had not prepared for a possible penalty phase, he investigated Woods' sanity and competency to stand trial, filed a standard discovery request, and secured a change of venue due to adverse pretrial publicity arising out of the trial of co-defendant Greg Sloan. While not perfect representation in a capital case, at the pretrial stages this is not the stuff of adversely affected performance. Cf. Thompkins v. State, 482 N.E.2d 710, 713 (Ind.1985) (counsel's representation was not adversely affected where he conducted thorough discovery and filed numerous motions and objections on defendant's behalf).

FN25. Rhetts had represented Woods' mother in a CHINS (child in need of services) proceeding related to three of her other children. The result of the proceeding was that she was allowed to keep custody of the children but under considerable supervision by the welfare department. The mother had also consulted with Rhetts prior to the murder about a possible tort lawsuit arising out of an automobile accident (the suit was never filed). Because the CHINS proceeding presumably implicated the mother's fitness as a parent-a possible issue in the mitigation stage if Woods was found guilty-Rhetts' position was certainly a “potential” conflict.

As Justice Marshall put it in discussing the difference between potential and actual conflicts in the context of joint representation: “There is the possibility of a conflict, then, if the interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties. There is an actual, relevant conflict of interests if, during the course of the representation, the defendants' interests do diverge with respect to a material factual or legal issue or to a course of action.” Cuyler, 446 U.S. at 356 n. 3, 100 S.Ct. 1708 (Marshall, J., concurring in part).

Third, and not surprisingly, Woods fails to direct our attention to evidence supporting his assertion that the conflict tainted the rest of the proceedings. There is no claim that the new lawyers had a conflict and Woods has not explained how Wharry and Johnston would have handled the case differently if they had been told of or discovered Rhetts' conflict. Any information Rhetts possessed about the mother was presumably privileged.

Even if Rhetts' prior representation of the mother precluded him from fully probing her possible involvement in the crime, as Woods contends, Wharry and Johnston deposed her on that subject and had adequate opportunity to investigate that issue. More generally, the trial court granted the new lawyers' request for a continuance to give them more time to prepare, and this Court held on direct appeal that the failure to grant additional continuances was not error: “There is no basis in the record upon which to conclude that additional time for preparation and consultation would have better equipped defense counsel to represent their client.” Woods, 547 N.E.2d at 788. Thus we cannot accept that the conflict structurally infected the rest of the proceedings.

Woods would have us overlook the fact that Rhetts withdrew nearly four months before trial. This is a critical point. Because successor counsel Wharry and Johnston planned and executed their defense strategy after their own discovery, pretrial motions, and consultations with Woods, any claim that Rhetts' inaction likely affected their performance-or, for that matter, the fairness of the trial-requires more than a bald allegation. Woods in effect asks us to presume ineffectiveness and an unfair trial where initial trial counsel withdraws due to a conflict. There is no such presumption. Accordingly, his claim that he was denied effective assistance due to Rhetts' prior representation of his mother fails.

VII. Woods' Remaining Ineffectiveness Claims

Woods alleges a plethora of other deficiencies in the handling of his case and argues that the postconviction court erred in finding that he received effective assistance of counsel. To establish a violation of the Sixth Amendment right to effective assistance of counsel, the defendant must show that (1) counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. More recently, the Supreme Court of the United States held that prejudice resulting from ineffective assistance is not established unless the error rendered the result of the proceeding fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The two prongs of Strickland are separate and independent inquiries; hence “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

Consistent with this directive, we assume, without deciding, that Woods could establish that trial counsel's performance fell below prevailing professional norms in one or more respects.FN26 Woods nonetheless must show a reasonable probability of a different result but for the alleged errors. The postconviction court found in detailed findings that Woods had not shown prejudice. There is no need to repeat these findings here. It suffices to say that Woods makes no colorable claim that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion as to the required showing of prejudice. For that reason alone, we affirm the denial of postconviction relief. Spranger v. State, 650 N.E.2d 1117, 1119-20 (Ind.1995).

FN26. This should not be taken to question the efforts of trial counsel in this case. Woods received a vigorous, if not perfect, defense. Numerous objections were made on his behalf at trial and raised on direct appeal. Woods v. State, 547 N.E.2d 772 (Ind.1989), aff'd on reh'g, 557 N.E.2d 1325 (Ind.1990). We accordingly assume deficient performance only for the purpose of resolving the Strickland inquiry in this appeal.

The individual incidents of allegedly deficient performance are too numerous to list or even summarize here. The brief filed on behalf of Woods deals with nearly every action or inaction by trial counsel, but makes no effort to establish prejudice from the supposed errors. At one point, Woods even suggests that proof of prejudice is not required and refers to the postconviction court's finding that no prejudice was shown on a particular point as the “incorrect legal standard” to apply in determining whether the Sixth Amendment was violated. Woods, not the postconviction court, is incorrect on that point. We are aware that the “duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.” Burger v. Kemp, 483 U.S. 776, 785, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). Nonetheless, Woods' failure to point to anything contradicting the postconviction court's finding of lack of prejudice permits an uncomplicated disposition of the rest of the appeal notwithstanding the serious nature of the proceedings.

Because this is a death penalty case, and for that reason only, we briefly address the ineffectiveness claims, roughly in the order that they are presented but with some consolidation due to redundant argument. Woods first alleges a variety of areas of possible investigation that were not but might have been pursued. The postconviction court found no prejudice from any of these and no serious contention is made attacking that finding.

Although several challenges related to jury selection were preserved and rejected on direct appeal, Woods, 547 N.E.2d at 785-86, 791, Woods argues that counsel's handling of voir dire fell below prevailing professional norms. The objections to counsel's performance in voir dire include fifteen shortcomings identified by Woods' expert on death penalty defense standards in the postconviction court. Woods concludes his discussion of this list by complaining that the postconviction court “failed to explore the issues of whether any jurors actually were seated who should not have been.” He fails to explore that subject in this appeal and for that reason presents no claim for reversal.

Woods next attacks the content of counsel's opening and closing arguments at the guilt phase, as well as other tactical trial decisions (e.g., failure to cross-examine witnesses or object to evidence, and failure to argue theories such as sudden heat that were supposedly more consistent with the mitigation evidence). Woods seeks to avoid the obvious point that classic tactical choices of this sort hardly ever support a claim of ineffective assistance because they are matters of trial strategy, Douglas v. State, 663 N.E.2d 1153 (Ind.1996), by contending that counsel's performance was so uninformed that no presumption of strategic decision should attach. However, Woods has not elaborated how any alternative argument or tactic would possibly, much less reasonably probably, have changed the outcome. Trial counsel Johnston testified in postconviction that “we honestly felt we had a very difficult case. It was very difficult to win on the guilt phase.” Woods concedes in this appeal that there was “overwhelming evidence of his participation in the crime.” In light of the powerful evidence of guilt-including a confession held on direct appeal to have been properly admitted, Woods, 547 N.E.2d at 786-87-we cannot say that the convictions were a fundamentally unfair or unreliable result. Fretwell, 506 U.S. at 369, 113 S.Ct. 838.

Woods next points to numerous alleged omissions at the penalty phase, including failure to give an opening statement or call Woods to the stand, failure to assemble and present a complete social or life history of Woods for mitigation purposes, and failure to make an effective presentation of the mitigation evidence that was gathered. The argument (not unfamiliar in postconviction) boils down to (1) counsel should have done more; and (2) counsel was ineffective with respect to what little was done. Neither contention withstands scrutiny here. As noted, counsel's choices related to opening or closing argument-and, for that matter, the decision whether the defendant should testify-are strategic calls that will rarely support a Sixth Amendment violation. Indeed, counsel Johnston testified in postconviction that he feared Woods would be “beat up” by the prosecutor if he took the stand.

With respect to the mitigation evidence, the postconviction court found that the evidence offered at the postconviction hearing was cumulative of the evidence presented at trial. Woods' contention to the contrary is wholly conclusory; and he concedes that at least some of this evidence was duplicative. In any event, Woods has not explained what any witness would have said, or any investigation would have uncovered, that might have led to a different sentence. He focuses on postconviction testimony illustrating difficulties in his upbringing, particularly related to his abusive mother. These arguments were not only made at trial but credited: on direct appeal we agreed with the trial court's determination that Woods' “turbulent childhood” was a “significant mitigating circumstance.” Woods, 547 N.E.2d at 782. Thus, even assuming the postconviction evidence on this point was not cumulative, prejudice has not been proved because Woods' surroundings were accepted as a mitigating factor at sentencing without the postconviction testimony. See also Hough v. State, 690 N.E.2d 267, 272 (Ind.1997) (prejudice was not established because defendant's personality disorder and abusive family background were not necessarily entitled to mitigating weight), petition for cert. filed, 67 U.S.L.W. 3362 (U.S. July 23, 1998) (No. 98-5826).FN27

FN27. Supposedly new evidence-e.g., the claim that Woods' mother essentially masterminded the murder and that he killed due to his rage towards her-falls far short of establishing a reasonable likelihood of a different result. We accept the postconviction court's finding that these allegations were available at trial; counsel cannot be condemned in hindsight for not arguing a dubious theory inconsistent with the evidence. We also find no basis for relief in counsel's numerous references to the jury's role in capital sentencing as a “recommendation.” Informing the jury that its capital sentencing verdict is a “recommendation” does not diminish the jury's role in the process so as to violate the Eighth Amendment. Hough, 690 N.E.2d at 270; Holmes v. State, 671 N.E.2d 841, 855 (Ind.1996), cert. denied, 522 U.S. 849, 118 S.Ct. 137, 139 L.Ed.2d 85 (1997). Moreover, counsel's comments at the penalty phase were made in the context of emphasizing that the jury's decision was of paramount importance. This is completely consistent with the jury's role in our death penalty scheme. Saylor v. State, 686 N.E.2d 80, 87 (Ind.1997), cert. denied, 525 U.S. 831, 119 S.Ct. 84, 142 L.Ed.2d 66 (1998).

The next contention is that the postconviction court erred in summarily dismissing several claims alleging that “numerous procedural, constitutional and instructional issues” not litigated either at trial or on direct appeal supported a finding of ineffective assistance of counsel. In the eight pages devoted to this argument, nowhere does Woods explain what these “issues” are. Rather, he incorporates the claims by reference by listing the relevant postconviction court findings on these “issues” in a footnote. It is apparent from the findings that some of the arguments-such as allegedly deficient handling of voir dire-duplicate Woods' other claims. Others (e.g., prosecutorial misconduct) were resolved against Woods on direct appeal. For each argument, the postconviction court found that Woods offered no evidence or authority to support his contention or failed to show a reasonable probability of a different result but for the error. Because Woods points to nothing in the record showing these findings to be clearly erroneous, this presents no basis for reversal.

Woods' remaining ineffectiveness claims are miscellaneous in nature and, because they are meritless, amenable to summary disposition. Woods raises a laundry list of undeveloped challenges to the jury instructions.It is difficult to determine whether these claims allege ineffective assistance for failure to object to or proffer a particular instruction, or are direct (and thus untimely) challenges to rulings at trial on instructing the jury.

These arguments, if not defaulted for failure to raise them as free standing claims on direct appeal,FN28 are waived for lack of cogency and failure to cite to the record. Armstead v. State, 538 N.E.2d 943, 945 (Ind.1989). Finally, Woods contends that the postconviction court erred in finding certain claims to be res judicata because they were or could have been raised on direct appeal. Woods maintains that his petition for postconviction relief asked that these issues be addressed as both free standing claims and ineffective assistance for failure to raise each issue on direct appeal; therefore the finding of procedural default was error. This assertion presents no basis for reversal.FN29

FN28. We addressed and rejected several challenges to the jury instructions on direct appeal. Woods, 547 N.E.2d at 783-85, 791-92. The postconviction court found all claims related to jury instructions to be res judicata, waived for failure to present evidence on the issue, or meritless due to lack of any showing of prejudice.

FN29. Of the claims found to be defaulted, the postconviction court ruled that the first two arguments, in addition to being res judicata, presented no grounds for relief because prejudice had not been shown. Woods does not dispute that conclusion. The remaining claims found to be res judicata largely duplicate claims that were either (1) dealt with on direct appeal (competency to stand trial, weighing of mitigating and aggravating factors, prosecutorial misconduct, constitutional challenges to the single aggravating circumstance); or (2) rejected elsewhere in the postconviction court's findings or in this appeal (mishandling of voir dire, challenges related to jury instructions). The few claims that are not cumulative of others already addressed-e.g., that Woods' lawyers had inadequate resources to present a vigorous defense-do not support reversal because Woods does not contend that the supposedly deficient performance prejudiced the trial outcome.

Conclusion

David Leon Woods received effective assistance of counsel in conformity with the Constitution of the United States. The denial of his petition for postconviction relief is affirmed.

Woods v. McBride, 430 F.3d 813 (7th Cir. November 30, 2005) (Habeas)

Background: Following affirmance on direct appeal of his convictions for murder and robbery and imposition of death sentence, 557 N.E.2d 1325, and of denial of state postconviction relief, 701 N.E.2d 1208, state inmate filed petition for writ of habeas corpus. The United States District Court for the Southern District of Indiana, Larry J. McKinney, Chief Judge, 302 F.Supp.2d 915, denied petition, and petitioner appealed.

Holdings: The Court of Appeals, Kanne, Circuit Judge, held that:
(1) trial court's failure to conduct competency hearing did not violate petitioner's procedural due process rights;
(2) failure to conduct competency hearing did not violate petitioner's substantive due process rights;
(3) petitioner was not denied effective assistance of counsel; and
(4) petitioner was not denied due process due to lack of procedural mechanism for review of his alleged conflict of interest with his post-conviction relief (PCR) counsel. Affirmed.

KANNE, Circuit Judge.

In the early morning of April 7, 1984, David Woods and two cohorts, Greg Sloan and Pat Sweet, concocted a scheme to steal a television. A few hours later, Woods, Sloan, and Sweet went to the apartment of seventy-seven-year-old Juan Placencia, an acquaintance of Woods's mother. Woods was armed with a knife, although he assured Sloan and Sweet that he intended only to scare Placencia with it. But when Placencia opened his front door, Woods immediately jumped inside and stabbed Placencia repeatedly. Placencia fell back into a chair, pleading for his life. Placencia's pleas did him no good. After Woods took $130 from Placencia's wallet, he continued to stab the elderly man-a total of twenty-one times to the face, neck, and torso. An autopsy later determined that Placencia died from at least three stab wounds to the heart and a wound to the skull that pierced through to his brain.

Woods and Sloan departed Placencia's apartment with the cash and television in hand. They hid the television in a trash bin and later sold it for $20. They also washed the clothes they were wearing during the robbery and disposed of the knife and other incriminating items in a nearby creek.

Shortly after the discovery of Placencia's body, Woods was arrested and charged with murder and robbery. An Indiana state court jury found Woods guilty of both, and the trial court sentenced Woods to death. Woods's convictions were affirmed on direct appeal in Woods v. State, 547 N.E.2d 772 (Ind.1989) ( Woods I ). A second opinion, issued on rehearing, affirmed Woods's convictions and sentence of death. See Woods v. State, 557 N.E.2d 1325 (Ind.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2911, 115 L.Ed.2d 1074 (1991). Woods filed a petition for post-conviction relief (“PCR”), which the Indiana PCR court denied. The Indiana Supreme Court affirmed the PCR court's denial of relief in Woods v. State, 701 N.E.2d 1208 (Ind.1998) ( Woods II ), cert. denied, 528 U.S. 861, 120 S.Ct. 150, 145 L.Ed.2d 128 (1999). Woods then filed a petition pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus, which the district court denied. Woods v. Anderson, 302 F.Supp.2d 915 (S.D.Ind.2004).

In this appeal, Woods advances three issues: (1) whether Woods was denied due process because he was not competent at trial; (2) whether Woods's trial counsel failed adequately to gather, marshal, and present mitigating evidence at the penalty phase, thus denying Woods effective assistance of counsel; and (3) whether Woods's due process rights were violated when he was granted post-conviction counsel but not the opportunity to air his concerns that he had an “actual conflict of interest” with his appointed PCR counsel.

For the reasons that follow, we affirm.

*****

B. Mitigation

Woods next argues that his trial counsel was constitutionally infirm for failing to present persuasive mitigating evidence during the penalty phase of his trial under standards established in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

Again, we turn to Strickland to guide our analysis of Woods's ineffective assistance claims. See Hall v. Washington, 106 F.3d 742, 749 (7th Cir.1997) (“Resolution of a claim of ineffective assistance of counsel at the penalty phase of a capital trial, like other claims of ineffective assistance, involves two elements: performance and prejudice.”); see also Ashford v. Gilmore, 167 F.3d 1130, 1135 (7th Cir.1999). In the capital sentencing context, however, the prejudice prong involves a slightly different inquiry: “whether there is a reasonable probability that, absent [counsel's] errors, the [jury] ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Hough v. Anderson, 272 F.3d 878, 891 (7th Cir.2001) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). As always, there remains “the strong presumption” that trial counsel rendered adequate representation. See Bieghler v. McBride, 389 F.3d 701, 708 (7th Cir.2004).

Woods argues that the Indiana Supreme Court's resolution of this precise claim was both contrary to and an unreasonable application of Supreme Court precedent, because the state court erroneously applied Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), rather than Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

For its part, the district court expressed doubt that the Indiana Supreme Court's citation to Fretwell was sufficient to establish that the court's disposition of Woods's ineffective assistance claim was in fact “contrary to” Supreme Court authority. Woods, 302 F.Supp.2d at 930 n. 2. But the district court nevertheless found that de novo review of Woods's claim yielded the same conclusion-that Woods was unable to show he suffered prejudice as a result of his counsel's performance. See id.

We see nothing wrong with the district court's analysis. If anything, the district court acted out of an abundance of caution, for our review of the Indiana Supreme Court's reasoning reveals that the court not only correctly identified Strickland as the appropriate legal standard, it also set forth the appropriate Strickland prejudice test, applied that test, and concluded that Woods failed to meet it. Woods II, 701 N.E.2d at 1224-25 (“[W]e assume, without deciding, that Woods['s] ... trial counsel's performance fell below prevailing professional norms in one or more respects. Woods nonetheless must show reasonable probability of a different result but for the alleged errors.”).

True, the court cited Fretwell, but only to the extent that the court concluded that Woods's claim likewise failed to meet Fretwell 's “fundamentally unfair or unreliable result” prejudice test. See Woods II, 701 N.E.2d at 1225. We do not read the state court's reasoning as resting on Fretwell, nor did the court conclude that Fretwell had somehow supplanted Strickland as the appropriate standard for ineffective assistance claims, so we will not reverse on that ground. Cf. Floyd v. Hanks, 364 F.3d 847, 852-53 (7th Cir.2004) (concluding that state court properly considered and applied Strickland prejudice test, despite reference to “reliability” as used in Fretwell ); Winters v. Miller, 274 F.3d 1161, 1167-68 (2001) (concluding that state court's erroneous application of Fretwell did not require reversal of conviction because de novo review under Strickland standard rendered the same result). But see Washington v. Smith, 219 F.3d 620, 632-33 (7th Cir.2000) (finding that state court erroneously substituted Strickland 's prejudice inquiry with the standard enunciated in Fretwell ).

At any rate, the Indiana Supreme Court concluded that Woods's mitigation arguments failed because he could not show prejudice: With respect to the mitigation evidence, the [PCR] court found that the evidence offered at the postconviction hearing was cumulative of the evidence presented at trial. Woods' contention to the contrary is wholly conclusory; and he concedes that at least some of the evidence was duplicative. In any event, Woods has not explained what any witness would have said, or any investigation would have uncovered, that might have led to a different sentence. He focuses on postconviction testimony illustrating difficulties in his upbringing, particularly related to his abusive mother.

These arguments were not only made at trial but credited: on direct appeal we agreed with the trial court's determination that Woods' “turbulent childhood” was a “significant mitigating circumstance.” Woods, 547 N.E.2d at 782. Thus, even assuming the postconviction evidence on this point was not cumulative, prejudice has not been proved because Woods' surroundings were accepted as a mitigating factor at sentencing without the postconviction testimony. Woods II, 701 N.E.2d at 1226. We believe that the state court's reasoning is neither contrary to, nor an unreasonable application of Strickland for the reasons given. Nevertheless, we hasten to add that-as the district court concluded-our own de novo review leads to the same conclusion.

The gist of Woods's claim is that his trial counsel failed to present mitigation evidence of the quantity or quality that his PCR counsel presented on post-conviction review. Woods claims that the totality of evidence adduced at both the penalty phase and the PCR hearing compares favorably with the available mitigation evidence at issue in Williams and Wiggins and, as in those cases, calls for a determination that his counsel rendered ineffective assistance at the penalty phase of his trial.

Review of the lengthy trial record in this case reveals that Woods unquestionably came from a tragic background, in large part due to the abuse and neglect of Woods by his mother, Mary Lou Pilkinton. The jury was treated to a substantial body of evidence in this regard. As the Indiana courts noted, the jury heard voluminous testimony during trial-particularly during the penalty phase-that left no doubt that Woods had a truly horrific childhood. Woods's counsel called witnesses who testified in detail about Pilkinton's selfishness, callous disregard of her children, and less-than-admirable lifestyle. The following is but a sampling of what the jury heard.

Pilkinton physically abused Woods and his siblings, and she never showed them any affection. She often left the children to fend for themselves while she went drinking or pursuing men. Worse, Pilkinton had the habit of bringing various men home and even had sex with them in full view of the children. At one point, Pilkinton became the “mama” of a local motorcycle gang and regularly hosted wild parties at her home, during which much sex and drinking went on in the presence of the children. One evening, Pilkinton “offered” two of her daughters (aged 13 and 11) to some of the bikers. Pilkinton and the various men in her life took sadistic pleasure in physically abusing Woods and his siblings. In addition, the children frequently witnessed Pilkinton herself being mercilessly beaten by these men.

Aside from this abuse, Woods grew up under deplorable home conditions. His father abandoned the family when Woods was several years old. Woods and his siblings had no stable home life either. As Pilkinton became involved with various men, she moved Woods and his siblings around the country, often living in very unhealthy and impoverished conditions, including a dilapidated shack in Arkansas. The children were forced to wear the same clothes (which were dirty and full of holes) for long periods, and often slept in their clothes so that Pilkinton would not have to get them dressed for school.

Jurors also heard testimony from mental health experts who opined that Woods's childhood had a lasting, detrimental effect on him. One expert testified to Woods's depression, anger, and emotional problems, which stemmed largely from his deep-seated feelings of resentment and hatred towards Pilkinton. A psychologist even testified that Woods's childhood was a recipe for sociopathic and impulsive behavior that produced severe personality disorders in Woods. Woods's problems with alcohol and drugs were revealed. Despite these problems, a social worker expressed belief that Woods was capable of showing compassion and could understand and make changes in his life and could be habilitated.

Other witnesses discussed the fact that Woods had been placed in foster care and had great difficulty in adjusting. A social worker testified that Woods often displayed aggression and violence to other foster children and even to himself (Woods had on one occasion inflicted knife wounds to his own stomach and arms)-circumstances attributable to Woods's unfortunate background and the psychological and emotional effects stemming from it.

Despite the fact that all of these mitigating circumstances-and more-were tendered to the jury to be considered against the aggravating circumstances of Woods's crimes, Woods claims that his counsel failed to present other persuasive mitigation evidence that was revealed for the first time during his PCR hearing. As mentioned, Woods points to substantive mitigating factors present in Williams and Wiggins that compare favorably with factors in his case and argues that those cases require us to find that his trial counsel were constitutionally infirm during the penalty phase of his trial.

Certainly, the testimony at Woods's PCR hearing undeniably revealed additional, often unpleasant details about Woods's upbringing and the nature of the various abuses he suffered, and some of these additional facts facially resemble some of the horrors recounted in Williams and Wiggins. For example, Woods points to additional details of his mother's neglect, such as chaining the refrigerator shut and giving food only as a reward for stealing. Other unsavory facts revealed during the PCR hearing provided additional detail regarding Woods's and his siblings' physical and sexual abuse and more fulsome explication of Pilkinton's sexual exploits.

But it is the effectiveness of Woods's trial counsel that we must consider, not merely the presence of factors that superficially resemble those in the aforementioned Supreme Court cases. And that performance in no way approaches the constitutionally defective actions and inactions of the lawyers in Williams or Wiggins. Woods's trial counsel pursued a reasonable doubt strategy during the guilt phase of trial and reserved its mitigation arguments for the penalty phase, a strategy that was not inherently unreasonable.

The lawyers conducted an investigation, marshaled evidence, and interviewed witnesses. They presented evidence in accordance with their objective of portraying Woods's mother in a very negative light-a not-unreasonable strategy given the wealth of unfavorable evidence detailed above.FN3 We cannot agree that counsel's performance was deficient when assessed objectively and measured against “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

FN3. While we are on this topic, we note that an argument could be made that Woods's counsel could be faulted for not calling Woods's own mother during the penalty phase to offer additional details in his mitigation. During the PCR hearing, Woods's mother provided an affidavit that provided additional detail of Woods's abuse and neglect at her hands. But, given Woods's trial counsel's strategy of fixing blame on his mother and the outright hostility that apparently existed between them at the time (indeed, Woods's mother was a state witness during the penalty phase), we cannot fault counsel's decision in this regard. See Timberlake, 409 F.3d at 824 (“Coerced testimony dragged out of truculent family members is unlikely to persuade a jury that a defendant has redeeming features.”). Likewise, counsel's decision not to call a social worker to provide greater detail about Woods's difficulties as a foster child was not unreasonable given counsel's concern that her testimony would open the door to prosecution questioning about Woods's juvenile record. Cf. id. at 825.

Unlike in Wiggins, counsel in this case actually presented mitigation evidence during the penalty phase rather than a half-hearted attempt to deflect culpability from the defendant. See Wiggins, 539 U.S. at 515-18, 526, 123 S.Ct. 2527. Furthermore the facts do not indicate a failure to investigate Woods's background thoroughly, nor did counsel simply stop their inquiries after having acquired only “rudimentary knowledge” of Woods's history from a narrow set of sources. See id. at 524-25, 123 S.Ct. 2527.

Likewise, Woods's counsel's performance contrasts sharply with that of the lawyers in Williams, who failed altogether to investigate and present graphic evidence of Williams's abusive upbringing, and with the performance of other counsel likewise found to have failed meaningfully to present any mitigation evidence. See Rompilla v. Beard, 545 U.S. 374, ----, 125 S.Ct. 2456, 2469, 162 L.Ed.2d 360 (2005) (finding ineffective assistance where counsel offered only a “few naked pleas for mercy” rather than any of the compelling mitigation evidence that counsel failed to investigate or present).

Really, Woods's claim boils down to the contention that his counsel did not present enough mitigating evidence. See Conner, 375 F.3d at 666 (noting that such arguments come down to a matter of degrees, which are ill-suited to judicial second-guessing) (citation omitted); cf. Stewart v. Gramley, 74 F.3d 132, 135 (7th Cir.1996) (“Presumably, [counsel] is not required to investigate the defendant's past with the thoroughness of a biographer.”). But the important point is that the performance of Woods's counsel is easily distinguishable from that in either Williams or Wiggins, and we can say that counsel's performance did not fall below prevailing professional standards. Cf. Conner, 375 F.3d at 662-63.

In the interest of completeness, we also note that even if Woods's counsel's performance was deficient, Woods cannot satisfy the prejudice prong of Strickland. Other than simply contending that mitigating factors present in his case compare favorably with factors evident in Williams and Wiggins, Woods offers nothing to convince us that there is a reasonable probability that the additional details that came up during the PCR hearing would have led the jury to conclude that the balance of aggravating and mitigating factors did not warrant imposition of the death penalty. Cf. Bieghler, 389 F.3d at 708.

In that regard, we agree with the Indiana Supreme Court's determination that the additional mitigation evidence was in essence cumulative of the mitigation evidence elicited during the penalty phase. See Woods II, 701 N.E.2d at 1226. As such, we find no reasonable probability that the additional evidence would have tipped the scales in Woods's favor. See Eddmonds, 93 F.3d at 1322 (“[A] few more tidbits from the past or one more diagnosis of mental illness on[ ] the scale would not have tipped it in [the petitioner's] favor.”). Indeed, this possibility is even less likely in light of the nature of the crime for which Woods stood trial and the aggravating circumstances presented to the jury. Id. at 1323 (“None of these [undisclosed] facts, individually or collectively, outweighed the countervailing aggravating factors and especially the heinous nature of the crime.”).

For all of these reasons, we conclude that the district court properly denied relief as to Woods's mitigation claim.

C. Conflict of Interest

Finally, we turn to Woods's contention that he was denied due process when he was granted PCR counsel but not a procedural mechanism for review of his theory that he had a “conflict of interest” with his PCR counsel. Woods characterizes the nature of the conflict thus: “As the case neared the [PCR] hearing date, outright hostility surfaced between Woods and his PCR counsel due to conflicting theories of defense.” (Pet. Br. at 6.) Woods filed a pro se motion for substitution of counsel, claiming that his PCR counsel wanted only to present mitigation evidence during the PCR hearing to the exclusion of making guilt-phase arguments. Woods's PCR counsel also filed a motion to withdraw. The PCR court denied both motions.

Although he concedes that he has no constitutional right to collateral review or to PCR counsel, Woods argues that once Indiana has extended these avenues for relief, the state's mechanisms for providing such relief must comport with the requirements of constitutional due process. See Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 83 L.Ed.2d 821 (1984). What this means, according to Woods, is that the state should have provided Woods with the opportunity to air his concerns about the “conflict,” and the denial of that opportunity was a violation of due process. The state denies that Evitts makes his claim cognizable in federal court, but at any rate insists that the district court properly concluded that Woods's claim was barred by procedural default and, in the alternative, that Woods loses on the merits.

In a sense, the dispute over whether Woods has advanced a cognizable due process claim or whether he is procedurally barred from bringing the claim is academic. We agree with the district court's conclusion that even if Evitts extends a due process right as Woods frames it, there is no basis for concluding that the state has deprived Woods of that right under the facts present in this case. Woods, 302 F.Supp.2d at 944.

Stripped to its essence, Woods's “conflict” is nothing more than his strenuous disagreement with his counsel. Woods also adds his contention that his “PCR counsel was attempting to coerce Woods into a full confession in front of the PCR court, under the misapprehension that aggravating and mitigating circumstances could be reweighed. Woods had continued to insist, from the time of his arrest over a decade earlier, that he did not remember the circumstances of the crime for which he had been convicted.” (Pet. Br. at 6.)

But we agree with the state's argument that, in certain respects, what Woods has characterized as a “conflict” with his counsel is really nothing more than an attempt to advance an ineffective assistance of PCR counsel claim while sidestepping procedural default. Viewed in that light, there was certainly nothing unreasonable about PCR counsel's decision to push forward with a powerful mitigation strategy at the PCR hearing and to elicit mitigation testimony from Woods himself (who, at trial counsel's suggestion, chose not to take the stand in the penalty phase).

Central to the post-conviction litigation strategy was the effort to frame and 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 hearing that would suggest that trial counsel was not up to snuff during the penalty phase. We have already disposed of that line of argument, but it is equally clear to us that PCR counsel's strategy was a sound one. PCR counsel did, after all, turn up additional mitigation details-albeit details insufficient to indicate that trial counsel was constitutionally ineffective in not eliciting those details the first time around.

As for Woods's suggestion that he had been coerced into giving a confession, the record is bereft of any factual support for this contention (we also note that Woods's tape-recorded confession had been played to the jury at trial). Nor is there any support for Woods's suggestion that his PCR counsel was operating under the misapprehension that the PCR court would reweigh aggravating and mitigating circumstances in deciding whether relief would be granted. Our review of the record supports the conclusion that Woods's PCR counsel pursued a reasonable post-conviction strategy, and any implication that their performance failed to pass constitutional muster must fail.

As far as Woods's suggestion of an “actual conflict of interest,” we find at most a disagreement between Woods and his PCR counsel as to strategy. We have found that personality conflicts and disagreements over trial strategy of this sort do not constitute reversible error. See United States v. Horton, 845 F.2d 1414, 1418 (7th Cir.1988); United States v. Hillsberg, 812 F.2d 328, 333-34 (7th Cir.1987).

Likewise, to the extent Woods may be suggesting it, we find nothing to indicate that the strategic disagreement hampered his ability to assist PCR counsel at the hearing. Cf. Matheney v. Anderson, 377 F.3d 740, 749 (7th Cir.2004) (concluding that disagreement between lawyers and client as to proper scope of capital trial did not amount to legal incompetency).

It follows that there was not an actual conflict of interest in Woods's case such that the Indiana courts were required to put off post-conviction review in order to hear Woods's claims or risk running afoul of the Constitution. Woods's disagreement with his PCR counsel over post-conviction strategy simply does not rise to that level, particularly in light of the eminently reasonable mitigation strategy undertaken by his PCR counsel.

In sum, we conclude that Woods's due process rights were not violated when the state courts declined to grant him an avenue to challenge his “conflict” with his PCR counsel. The district court properly denied relief on this claim.

II. Conclusion

For the reasons given, we conclude that Woods is not entitled to habeas relief on any of the grounds advanced. The district court's denial of habeas relief is Affirmed.