ATTORNEYS FOR APPELLANT                                                      ATTORNEYS FOR APPELLEE
Stephen T. Owens                                                             Gregory F. Zoeller
Public Defender of Indiana                                                   Attorney General of Indiana

Joanna Green                                                                 Stephen R. Creason
Steven H. Schutte                                                            Chief Counsel
Kathleen Cleary
Deputy Public Defenders                                                      Kelly A. Miklos
Indianapolis, Indiana                                                        Deputy Attorney General
                                                                             Indianapolis, Indiana
______________________________________________________________________________

                                                  In the
                                Indiana Supreme Court                                  Apr 04 2013, 12:16 pm

                                _________________________________

                                         No. 10S00-1004-PD-185

        DANIEL RAY WILKES                                                    Appellant (Petitioner),

                                                      v.

        STATE OF INDIANA                                        Appellee (Respondent).
                                _________________________________

                   Appeal from the Clark Circuit Court, No. 10C01-1009-PC-612
                            The Honorable Carl D. Heldt, Special Judge
                             _________________________________

                                               April 4, 2013

Dickson, Chief Justice.


        The defendant, Daniel Ray Wilkes, has appealed the post-conviction court's denial of his
claim that he was deprived of his constitutional rights to an impartial jury and effective assis-
tance of counsel. We affirm the post-conviction court.


        The defendant was convicted by a jury of the 2006 murders of Donna Claspell and her
two daughters, eight-year-old Sydne Claspell and thirteen-year-old Avery Pike.1 The State

        1
          A detailed recitation of the facts is available in our opinion on the defendant's direct appeal.
Wilkes v. State, 917 N.E.2d 675, 679 (Ind. 2009). Because the defendant's post-conviction claims relate
to various stages of the trial process, additional facts will be provided specific to each issue, as necessary.
sought the death penalty and, in the penalty phase of the trial, the jury found all four charged
statutory aggravating circumstances and that the aggravating circumstances outweighed the miti-
gating circumstances but reached no agreement on a sentencing recommendation. In accordance
with statute, Ind. Code § 35-50-2-9(f), the trial court then conducted the sentencing, inde-
pendently found that the aggravating circumstances outweighed the mitigating circumstances,
and sentenced the defendant to death. The defendant appealed, and we affirmed. Wilkes v.
State, 917 N.E.2d 675 (Ind. 2009).


        The defendant then petitioned for post-conviction relief on various grounds. The post-
conviction court denied relief on all but one of the defendant's claims, modifying the defendant's
sentence from death to life imprisonment without the possibility of parole.2 While succeeding in
obtaining relief from his death sentence, the defendant now appeals from the denial of his addi-
tional post-conviction request for new trial, claiming (a) that his trial counsel were constitutional-
ly ineffective for failing to fully investigate and present certain exculpatory evidence; (b) that his
trial counsel were constitutionally ineffective for failing to question a specific juror ("Juror A")
during voir dire; (c) that his trial counsel were constitutionally ineffective for inadequately pre-
serving for appeal the defendant's objection to the trial court's time limitation on voir dire there-
by depriving the defendant of an impartial jury; (d) that, by declining to fully answer two ques-
tions on the juror questionnaire, Juror A committed misconduct and deprived the defendant of
his right to an impartial jury; and (e) that the post-conviction court erred in denying the defend-
ant's motion for discovery or in camera review of materials relating to Juror A's family.

        2
           At the penalty phase of the defendant's trial, the jury was unable to reach a unanimous sentenc-
ing recommendation. The trial court, as required by statute, Ind. Code § 35-50-2-9(f), then conducted the
penalty phase anew. Taking note of the then-controlling case law, the trial court, in sentencing the de-
fendant, refused to consider the jury's inability to reach a consensus as a mitigating circumstance. On
direct appeal, this Court affirmed the trial court's reasoning and found no reversible error, Wilkes, 917
N.E.2d at 692–93, but concluded that legislative changes to the death penalty statute, subsequent to the
case law relied upon by the trial court, rendered "the fact that the jury—whose recommendation would
otherwise be binding—could not agree" a circumstance that "the trial court should be permitted to consid-
er in determining the appropriate sentence." Id. at 693. The defendant, in petitioning for post-conviction
relief, contended that this change in the law should be applied to his case. The post-conviction court con-
sisted of the same trial judge that presided over the defendant's murder trial. In denying the defendant's
other claims, the post-conviction court modified the defendant's sentence, concluding: "[The] ruling of the
trial court, had it been permitted to consider the jury's indecision, would have been different. It would
have been for life imprisonment without parole." Findings of Fact, Conclusions of Law and Judgment,
Appellant's App'x at 551–52. The State has not appealed the sentence modification and asks only that this
Court affirm the post-conviction court.
                                                    2
        Post-conviction proceedings are civil proceedings in which the defendant must establish
his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Ben-Yisrayl v.
State, 738 N.E.2d 253, 258 (Ind. 2000). Post-conviction proceedings do not offer a super-appeal,
"[r]ather, subsequent collateral challenges to convictions must be based on grounds enumerated
in the post-conviction rules." Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002) (citing P.-C.R.
1(1)); Ben-Yisrayl, 738 N.E.2d at 258. Those grounds are limited to "issues that were not known
at the time of the original trial or that were not available on direct appeal." Ben-Yisrayl, 738
N.E.2d at 258. "Issues available but not raised on direct appeal are waived, while issues litigated
adversely to the defendant are res judicata." Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009)
(citing Allen v. State, 749 N.E.2d 1158, 1163 (Ind. 2001)); see also Ben-Yisrayl, 738 N.E.2d at
258. Claims of ineffective assistance of counsel and juror misconduct may be proper grounds for
post-conviction proceedings. See Pruitt, 903 N.E.2d at 906; Allen, 749 N.E.2d at 1164, 1166;
Ben-Yisrayl, 738 N.E.2d at 259.


        Because the defendant is appealing from the denial of post-conviction relief, he is appeal-
ing from a negative judgment and bears the burden of proof. Ben-Yisrayl, 738 N.E.2d at 258.
Thus, the defendant "must establish that the evidence, as a whole, unmistakably and unerringly
points to a conclusion contrary to the post-conviction court's decision." Id. "In other words, the
defendant must convince this Court that there is no way within the law that the court below could
have reached the decision it did." Stevens, 770 N.E.2d at 745. We review the post-conviction
court's factual findings for clear error, but do not defer to its conclusions of law. Id. at 746 (cit-
ing Ind. Trial Rule 52(A)).


                                  1. Assistance of Trial Counsel


        The defendant contends that his trial counsel were constitutionally ineffective in violation
of his rights under the Sixth and Fourteenth Amendments to the U.S. Constitution and Article 1,
Section 13, of the Indiana Constitution in three ways: (a) that trial counsel did not fully investi-
gate and present evidence that "casts doubt" on the State's theory during the guilt phase of his
trial, Appellant's Br. at 6; (b) that trial counsel permitted an "unqualified [death penalty] juror" to

                                                   3
be empanelled by not asking that juror any questions other than the written questionnaire, id. at
23; and (c) that trial counsel failed to adequately preserve any objection to the trial court's impo-
sition of time limits on voir dire, id.


        Claims of ineffective assistance of counsel are evaluated using the Strickland standard
articulated by the U.S. Supreme Court. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012); Ben-
Yisrayl, 738 N.E.2d at 260. To establish ineffective assistance of counsel, a defendant must
demonstrate to the post-conviction court (1) that counsel performed deficiently based upon pre-
vailing professional norms ("reasonableness") and (2) that the deficiency resulted in prejudice to
the defendant ("prejudice"). Ward, 969 N.E.2d at 51 (citing Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).


        This standard first asks whether, "considering all the circumstances," counsel's actions
were "reasonable[] under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S. Ct.
at 2065, 80 L. Ed. 2d at 694. "Judicial scrutiny of counsel's performance must be highly deferen-
tial." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; see also Pruitt, 903 N.E.2d at 906 (quot-
ing Lambert v. State, 743 N.E.2d 719, 730 (Ind. 2001) ("Counsel is afforded considerable discre-
tion in choosing strategy and tactics, and we will accord that decision deference." (alteration
omitted)). Second, even if counsel's performance is deficient, the defendant must demonstrate
that counsel's deficient performance actually prejudiced the defense. Ben-Yisrayl, 738 N.E.2d at
260. That is, "[t]he defendant must show that there is a reasonable probability that, but for coun-
sel's unprofessional errors, the result of the proceeding would have been different." Strickland,
466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probabil-
ity sufficient to undermine confidence in the outcome." Id. "Further, counsel's performance is
presumed effective, and a defendant must offer strong and convincing evidence to overcome this
presumption." Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010) (citing Ben-Yisrayl v. State,
729 N.E.2d 102, 106 (Ind. 2000)).


A. Investigating and Presenting Allegedly Exculpatory Evidence


        The defendant contends that his trial counsel rendered constitutionally ineffective assis-

                                                  4
tance by failing to fully investigate and present certain evidence of an exculpatory nature, name-
ly: (1) testimony of two neighbors of the victims that each claimed to have seen at least one of
the victims after the State's proposed timeframe for commission of the crimes by the defendant;
(2) cell phones recovered in the victims' home containing call histories that purportedly conflict
with the State's proposed timeframe for commission of the crimes by the defendant; and (3) a
"potential alternative suspect," Appellant's Br. at 10, who was encountered by two neighbors and
the police in the vicinity of the victims' home the day before the victims were discovered.


       The Strickland ineffective assistance of counsel standard "require[s] no special amplifica-
tion in order to define counsel's duty to investigate." Strickland, 466 U.S. at 690, 104 S. Ct. at
2066, 80 L. Ed. 2d at 695. Furthermore, on appeal in post-conviction proceedings, the defendant
must demonstrate that the evidence points unerringly and unmistakably to a conclusion opposite
that reached by the post-conviction court. Ben-Yisrayl, 738 N.E.2d at 258.


       The State's theory during the guilt phase of the defendant's trial was that the defendant
committed the murders during the night or early-morning hours of Sunday, April 23, through
Monday, April 24, 2006. The victims' bodies were not discovered until Wednesday, April 26,
2006. Witnesses testified that the defendant stayed in the victims' home Sunday night the 23rd
but left the home at approximately 8 a.m. Monday morning the 24th. The defendant's wherea-
bouts between leaving the victims' home on Monday morning the 24th and the time of his arrest
on Wednesday the 26th were readily accounted for. Certain other facts adduced at trial support-
ed the State's theory: (1) the defendant's confessions to the crimes corroborated the State's pro-
posed timeline; (2) the girls, Avery and Sydne, had not been to school Monday, Tuesday, or
Wednesday (24th–26th) and the victims' family had not seen or heard from them those days; and
(3) the medical examiner that performed the autopsies estimated the time of death to be the early-
morning hours of April 24.


       The post-conviction court entered specific findings of fact and conclusions of law on
each of the defendant's claims. With respect to the defendant's contention that his trial counsel
were constitutionally ineffective for failing to investigate and present available exculpatory evi-
dence at trial, the post-conviction court found that the defendant's claim failed both the reasona-

                                                  5
bleness and prejudice prongs of the Strickland standard. The post-conviction court concluded
that it was a reasonable trial strategy to forgo presentation of the evidence because it was "unre-
liable and inconsistent with [the defendant's] trial theory." Findings of Fact, Conclusions of Law
and Judgment, Appellant's App'x at 511–12. Additionally, the post-conviction court found that
the "evidence of [the defendant's] guilt is overwhelming" and, even had the defendant's counsel
presented the additional evidence, "the result of [the defendant's] trial would have been the
same." Id. at 512. The record supports the post-conviction court's conclusions.


        On his appeal from the denial of requested post-conviction relief, the defendant contends
that his counsel should have presented the testimony of Matthew Reed and of Marian Wade,
each of whom was a neighbor of the victims. During the death investigation, Reed's wife briefly
spoke with police and informed them that Reed had seen one of the victims, Sydne, playing out-
side on Monday, April 24. This information was noted in a police report containing notes on
brief interviews with eight different individuals in the victims' neighborhood on Wednesday,
April 26, the day the victims were found. Wade approached investigators on Thursday, April 27,
and gave a recorded statement in which she stated that she encountered Donna and Avery outside
their home on Monday afternoon, April 24. Wade further stated that Donna was engaged in a
verbal disagreement with an adult male which involved yelling and vulgar language but that she
did not see the individual with whom Donna was arguing. The police report of interview notes
and a transcription of Wade's statement were provided to the defense team.


        At the post-conviction hearing, Reed testified that he saw Sydne in the back yard of the
victims' home, which abutted Reed's "side yard," on Monday, April 24, 2006. P.-C. Tr. at 130,
132.3 He stated that he knew it was a Monday because "it was the first day of the workweek"
and he saw Sydne when he "took [his] dogs out," as was his custom, before leaving for work
shortly before 2 p.m. Id. at 130, 133. When asked whether it may have been the previous Mon-
day, Reed stated, "No, it was definitely that week." Id. at 133. Reed also stated that no repre-
sentative from the defendant's trial team ever contacted him. Wade testified that she encountered
Donna and Avery on Monday, April 24, 2006, and described the verbal altercation with an adult

        3
            Throughout this opinion, the transcript of the post-conviction hearing will be cited as "P.-C. Tr."
and exhibits from the post-conviction hearing will be cited as "P.-C. Ex." The transcript of the defend-
ant's trial, both guilt and penalty phases, will be cited as "Trial Tr."
                                                      6
male as she had in her previous statement. She stated that she knew it was "a Monday" because
she was returning from the liquor store (which was closed on Sundays), her daughter had just got
out of school, and her boyfriend, who worked Monday through Friday, was at work. Id. at 123,
125. However, in direct contradiction of her previous statement to police, Wade testified that she
saw the individual with whom Donna was arguing and that the individual was the defendant.


       The defendant also contends that cell phones recovered by police from the victims' home
contained evidence that his trial counsel should have presented. Three cell phones were found in
the victims' home. The phones were taken by investigators and logged as evidence, but neither
side utilized them at trial. On post-conviction review, the phones were analyzed, revealing the
phone numbers associated with two of the phones (a Motorola and a Nokia) as well as some call
history on the Motorola phone.4 The call history on the Motorola phone showed a call placed at
6:50 a.m. on Tuesday, April 25, 2006, to the home phone of Mike Baker. The caller-ID device
in Baker's home shows no record of such a call. However, Baker's caller-ID does show a call
from the Nokia phone on Monday, April 24, 2006, at 6:42 a.m. Additionally, the Vanderburgh
Sheriff's investigator that analyzed the phones testified that the date/time stamp on the cell
phones may have been incorrect. He stated that he could not verify that the call history of the
cell phones was correct without the call records from the cell network carrier because the phones
may have required manual entry of the date and time by the user when the phone was initially
programmed. That is, if the initial user entered an incorrect date or time, the discrepancy would
be reflected in the call history stored by the phone.


       The defendant further argues that testimony regarding the presence of a third party, Glen
Spradley, in the vicinity of the victims' home should have been presented to the jury. The post-
conviction record reveals that Spradley was briefly in a drug rehabilitation facility with the de-
fendant, Baker, and one of the victims (Donna). The record further reveals that on Tuesday,
April 25, 2006, Spradley was seen near the victims' home. Charles Thornton, who lived across
the street from the victims, encountered Spradley entering Thornton's home through the front
door. When Thornton confronted him, Spradley said he was "looking for Dan" and departed
when Thornton informed him that he had the wrong house. P.-C. Ex. 4, at 124. Another neigh-

       4
           The investigators were unable to extract any information from the third phone.
                                                     7
bor also encountered Spradley trespassing through his yard, again "looking for Daniel." P.-C.
Tr. at 203–04. The neighbor testified that Spradley appeared to have "been drinking or on drugs
or something." Id. at 204. Spradley left when informed that he had the wrong house. The
neighbor, however, called the police. An Evansville police officer responded to the call and
found Spradley changing a flat tire on his vehicle near the victims' home. Spradley informed the
officer that "he was looking for some friends he knew from rehab." P.-C. Ex. 13, at 196. The
officer also found Spradley to be "under the influence of something," id., and helped Spradley
arrange for someone to pick him up. The officer stood "within feet" of Spradley but did not see
any blood on his clothing. P.-C. Tr. at 162–63.


       The defendant's trial defense team also testified at the post-conviction hearing. The lead-
counsel, Barbara Williams, had over twenty-five years experience as an Indiana attorney includ-
ing "close to 150 felony jury trials," id. at 42, and multiple capital cases as both lead and co-
counsel. Both Williams and her co-counsel, Kurt Schnepper, were qualified capital case attor-
neys in accordance with Criminal Rule 24. See Ind. Crim. Rule 24(B). Bill Denton served as the
trial defense team's guilt-phase investigator. Denton had over nine years experience as an inves-
tigator for the Vanderburgh County Public Defender and had approximately thirty years experi-
ence as a deputy sheriff in Vanderburgh County.


       Investigator Denton testified that he reviewed all of the discovery information provided
by the State in preparation for the trial on his own and with the defendant's counsel. Denton rec-
ognized Thornton's report to the police and was sure he followed-up "in some fashion" but did
not recall a conversation with Thornton (regarding Spradley). P.-C. Tr. at 14. Nor did Denton
recall specific conversations with Reed or Wade but did remember speaking to witnesses regard-
ing the timeline of the crimes, individuals "that lived in the neighborhood . . . that thought they
saw the victims." Id. at 28–29. Denton also remembered seeing photographs of the phones from
the victims' home and was sure that the defense team visited the evidence storage facility to re-
view the physical evidence but could not recall a specific time or discussion with an evidence
technician, nor could he recall turning on the phones. Denton further testified that he investigat-
ed leads of his own initiative and at the request of counsel and that there was "excellent commu-
nication" among the defense team. Id. at 28.

                                                  8
       With respect to the investigation and presentation of evidence, attorney Williams testified
that the defense theory of the case was that Mike Baker committed the murders and that reliable
evidence that challenged the State's theory of the case would have been presented. Williams also
testified that the defense "was a very cohesive team and we met very, very, very frequently and
we discussed . . . every aspect . . . of the case." Id. at 60. Williams was not questioned regarding
Reed, Wade, Spradley, or the cell phones. Attorney Schnepper testified that he reviewed every
piece of evidence regarding Mike Baker in preparation for cross-examining Baker during the tri-
al. Schnepper remembered reviewing the photographs of Baker's caller-ID readouts to establish
"a time line as to who called and when they called" Baker's house. Id. at 84. Schnepper also re-
membered that cell phones were recovered from the victims' home but could not recall whether
information was retrieved from the phones. However, he testified that if there was helpful in-
formation on the phones, the defense team would have utilized that evidence. Schnepper also
stated that the defense theory was that Mike Baker was the murderer, id. at 93, and that the de-
fense team investigators and consultants "did a fabulous job," id. at 98.


       The record of the defendant's trial overwhelmingly demonstrates that the defense team's
theory of the case was that the defendant's confessions were unreliable and Mike Baker was the
perpetrator of the crimes. Counsel elucidated this theory in opening statements and in closing
arguments. Counsel thoroughly cross-examined Baker about his relationship with the victims
and his potential motive for committing murder. Furthermore, counsel expended significant ef-
fort cross-examining the investigating officers about their investigation of Baker, contending that
the police too readily dismissed Baker's alleged involvement based upon the defendant's initial
confession; a confession which the defense argued was unreliable. This was a reasonable strate-
gy given Baker's admitted adulterous-romantic interest in one of the victims, Donna; his admit-
ted visits to the victims' home to get high on methamphetamine; his admitted role as the supplier
of methamphetamine to Donna and the defendant; his admitted role in helping his son, who was
then facing felony drug charges, manufacture the methamphetamine; and the defendant's allega-
tion, during interrogation, that Baker was the culprit.


       While the testimonies of Wade and Reed and the timestamp on the Nokia cell phone sug-

                                                  9
gest that the victims were alive after the defendant left the victims' home, presentation of this ev-
idence would have required an entirely different defense strategy focusing on the possibility of
an unknown assailant. In seeking post-conviction relief, the defendant presents Spradley as that
potential unknown. Thus, this new strategy would have hinged upon the coincidental appearance
of Spradley, the singular sighting of one of the victims by Reed, a potentially inaccurate cell
phone timestamp, and the inconsistent statements of Wade. Even when viewed cumulatively,
this evidence is relatively weak in comparison to the strategy actually employed by the defense.
See Kubsch, 934 N.E.2d at 1154 (quoting Reaves v. State, 586 N.E.2d 847, 858 (Ind. 1992))
("Alleged '[t]rial irregularities which standing alone do not amount to error do not gain the stat-
ure of reversible error when taken together.'").


        The defense strategy, implicating Baker for the murders, included acceptance of the
State's timeline for commission of the crimes. During the initial interrogation, the defendant told
police that Baker committed the murders on Sunday night or Monday morning and that Baker
threatened the defendant not to tell anyone.5 This defense strategy not only aimed direct suspi-
cion at Baker but also provided a reason for the defendant's confessions (fear of Baker), confes-


        5
          The transcription of the defendant's interrogation by Detectives Ron Brown and Ken Taylor
contains the following exchange:
        Q. Are you afraid of Mike and Mike did it. And you're afraid of Mike telling on him [sic] be-
        cause you're afraid that he will hurt you? Tell me the truth now, did Mike do this? Did you see
        Mike hurt her, did you see Mike take that level and hurt Donna?
        A. He called me in there, and said look.
        ....
        Q. He said look and what did you see?
        A. Seen Donna lying there.
        ....
        Q. [Mike] told you that he did it?
        A. He said because she was going to tell his wife and they were in to it and he was drinking.
        Q. What did you do it [sic] when you saw her?
        A. Said I was going to call the Police.
        Q. What did he do?
        A. He said, I'll do that to you.
State's Trial Ex. 102 at 55–56.
                                                   10
sions which the defense sought to undermine as unreliable or false. If the defense chose to pre-
sent evidence of a conflicting timeline, the defense could not contend that the defendant's impli-
cation of Baker was truthful. Such a strategy would have nullified the defense's attempt to im-
plicate Baker and, more importantly, would have severely hindered the argument that the de-
fendant's confessions were unreliable. That the defense strategy was ultimately unsuccessful
does not mean that counsel was constitutionally ineffective. See Strickland, 466 U.S. at 689, 104
S. Ct. at 2065, 80 L. Ed. 2d at 694 ("Judicial scrutiny of counsel's performance must be highly
deferential."); see also Pruitt, 903 N.E.2d at 906 (quoting Lambert, 743 N.E.2d at 730 ("Counsel
is afforded considerable discretion in choosing strategy and tactics, and we will accord that deci-
sion deference." (alteration omitted))). "The purpose [of the effective assistance guarantee of the
Sixth Amendment] is simply to ensure that criminal defendants receive a fair trial." Strickland,
466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The defendant failed to demonstrate to
the post-conviction court that his counsel's selection of trial strategy was unreasonable "under
prevailing professional norms." Id. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. And he has
clearly failed to establish in this appeal that the evidence conclusively points to a conclusion con-
trary to that reached by the post-conviction court.


       Additionally, even if counsel's performance had been constitutionally deficient so as to
satisfy the first prong of the Strickland test, the second prong was not met, that is, "that there is a
reasonable probability that . . . the result of the proceeding would have been different." Id. at
694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The post-conviction court found:
           The evidence of [the defendant's] guilt is overwhelming, including eye witness ac-
       counts placing him at the scene both before and after the commission of the murders,
       DNA evidence placing the blood and/or biological material of his victims on various
       pieces of clothing that [the defendant] was seen wearing the day of or the day before the
       murders, and his four statements regarding his commission of the murders and his moles-
       tation of Avery. Specifically, in his voluntary statements to police, [the defendant] sup-
       plied several key facts about the crime that were not responses to police-suggestion and
       that showed his deliberate actions in murdering his victims.

Findings of Fact, Conclusions of Law and Judgment, Appellant's App'x at 512. The record sup-
ports the post-conviction court's conclusion that had the evidence from Reed and Wade, the cell
phones, and Spradley's presence been introduced the result of the defendant's trial would have
been the same. On appeal, the evidence does not compel a contrary conclusion. We decline to

                                                  11
reverse the denial of post-conviction relief on this claim.


B. Conducting Jury Selection


        The defendant contends that his trial counsel were ineffective because they "failed to ask
Juror A any questions" during voir dire.6 Appellant's Br. at 23. The post-conviction court de-
nied relief on this issue. Finding that the defendant did not establish to the post-conviction court
that his legal representation was constitutionally ineffective, we conclude that the denial of relief
was proper.


        The defendant's argument focuses on Juror A's refusal to answer portions of two ques-
tions on the jury questionnaire. The questionnaire was 21 pages in length, consisting of 112
questions, many of which requested further explanation if a particular answer to a yes-or-no
question was given. Juror A declined to answer a question that related to drug abuse and, after
marking the yes-or-no portion, declined to explain the answer to a question regarding counseling
for substance abuse or mental, emotional, or psychological problems. Juror A fully answered the
other 110 questions. After the penalty phase of the defendant's trial, the jury was unable to reach
a unanimous sentencing recommendation. The trial court sentenced the defendant to death. On
post-conviction review, testimony revealed that the jury's vote during the penalty phase of the
defendant's trial was 11 votes for life imprisonment without parole and 1 vote for death. The sol-
itary vote for a sentence of death was Juror A.


        The principal focus of the defendant's argument with respect to Juror A is that his trial
counsel were constitutionally ineffective for failing to inquire into Juror A's ability to consider
and weigh the defendant's mitigation evidence during the penalty phase of the trial. The majority
of the defendant's mitigation evidence related to his upbringing and the effects of substance
abuse and mental health issues on the defendant and his family. The defendant contends that Ju-
ror A's refusal to fully answer the two questions regarding substance abuse and counseling
should have alerted counsel to the possibility that Juror A would not be receptive to the defend-


        6
          By agreement of the parties the juror was not named in the post-conviction proceeding and will
be referred to only as "Juror A."
                                                   12
ant's mitigation evidence.


       The defendant's counsel did not question Juror A during voir dire. The State, however,
did question Juror A, and Juror A's answers were apparently satisfactory to both parties. Neither
party moved to strike Juror A for cause. As discussed above in Part 1(A), defense attorney Wil-
liams had over twenty-five years experience as an Indiana attorney including "close to 150 felo-
ny jury trials" and multiple capital cases as both lead and co-counsel. P.-C. Tr. at 42. And de-
fense co-counsel Schnepper had approximately five years experience as a criminal attorney.
Both Williams and Schnepper were qualified capital case attorneys in accordance with Criminal
Rule 24. See Ind. Crim. Rule 24(B). In addition to trial counsel's experience and training in em-
panelling death penalty juries, trial counsel employed a jury consultant, Heather Pruss, who re-
viewed every juror questionnaire and provided the defense team with feedback. The defense in-
vestigators, Bill Denton and Steven Brock, also reviewed the questionnaires and the team collec-
tively evaluated the jury pool before and during voir dire.


       At the outset, the defense team sought to identify "people that are always going to vote
death," P.-C. Tr. at 118 (testimony of Consultant Pruss), and "whether or not there are people on
the jury who will consider mitigation," id. at 50 (testimony of Attorney Williams). Attorney
Schnepper noted that more than one questionnaire had "blank spots" or affirmative declinations
to answer and that the team "just generally took those into consideration. . . . [D]epend[ing] on
what the question was." Id. at 79–80. The defense team viewed a prospective juror's contact
with addiction or mental illness as a possible negative where a spouse and children were in-
volved, preferring instead experience with "a brother or a sister or a distant family member or
someone like that, where [the juror] would be more understanding of the disease." Id. at 81.
However, the defense team generally viewed a prospective juror's "close contact with drug ad-
diction or alcoholism or something of that nature" as a positive because such a juror was more
likely to be sympathetic to the defendant's mitigation evidence. Id. at 80.


       Even with the omitted answers, Juror A's questionnaire clearly indicated close contact
with substance and physical abuse and mental illness, each from different individuals—a former
spouse, a mother, a sister, and a grandfather. Juror A's questionnaire answers also revealed sup-

                                                13
port for the view that social factors and the particular details of a crime are each relevant to de-
termining punishment. Juror A's answers further indicated receptiveness to testimony by mental
health doctors and professionals. Additionally, Juror A expressed strong concern about the final-
ity of the death penalty.


        Because of the time limitation on voir dire, the defense team relied wholly on the ques-
tionnaires in evaluating some prospective jurors, choosing instead to use the allotted voir dire
time to direct questions to those prospective jurors with questionnaire answers or responses to
questions by the State that revealed the most potential prejudice to the defendant's trial or mitiga-
tion strategy. This was done in an effort to have those potentially prejudicial jurors struck for
cause.7 Furthermore, because of the extensive jury questionnaires, trial counsel were in the best
position to evaluate the jury pool as a whole, knowing what potentially prejudicial jurors were on
the panel with Juror A as well as those that would be on future panels. The defense team could
have reasonably viewed Juror A positively based solely upon Juror A's questionnaire and an-
swers to the State's questions—particularly considering Juror A's expressly stated unease about
the finality of the death penalty and Juror A's contacts with substance abuse and mental illness—
and thus made a tactical decision to focus on other prospective jurors during the selection pro-
cess. Such a decision is well within the discretion of trial counsel. See Pruitt, 903 N.E.2d at 906
(quoting Lambert, 743 N.E.2d at 730 ("Counsel is afforded considerable discretion in choosing
strategy and tactics, and we will accord that decision deference." (alteration omitted))).


        In addition to his penalty phase arguments with respect to Juror A, the defendant also
briefly asserts that his defense counsel's failure to question the juror was harmful during the guilt
phase of the trial. During the defendant's trial, counsel sought to undermine the defendant's con-
fessions by highlighting the defendant's initial claim during interrogation that he had no
"memory of any of the events other than flashes of the scene," Appellant's Br. at 16, and by argu-


        7
            Before the post-conviction court, Attorney Schnepper stated,
        I know there were—there were times where we would get stuck on a particular juror that we—
        that either I or [Attorney Williams] thought that we really had cornered—almost cornered to get
        them struck for cause and we would have to spend time specifically on that juror and we may not
        have gotten to all of the people in the panel during that allotted time, so yes.
P.-C. Tr. at 81.
                                                     14
ing that the initial confession was the result of coercive interrogation. This strategy was partially
based upon the defendant's admission to ingesting alcohol, methamphetamine, and a prescription
anxiety medication the night of the murders and his claim during the initial interrogation that he
was still under the influence of drugs. The defendant now contends that a juror, such as Juror A,
"who had an ex-spouse who became violent while drinking is likely not to be receptive to the
defense theory at guilt phase." Id. However, Juror A was candid about this topic in the jury
questionnaire and trial counsel was thus aware of Juror A's experience without further question-
ing.


         With respect to the impact of Juror A on both the guilt and penalty phases, the assessment
of Juror A's ostensible biases as compared to the other prospective jurors on the voir dire panel
and in the jury pool as a whole was a matter properly within the tactical discretion of trial coun-
sel, and the record does not demonstrate that counsel was constitutionally ineffective in the exer-
cise of that discretion. The defendant has failed to establish to the post-conviction court that his
trial counsel were constitutionally ineffective for using voir dire to question other jurors instead
of questioning Juror A during the time allotted. The defendant is not entitled to relief on this
claim.


C. Establishing Record for Appeal


         The defendant further argues that trial counsel "failed to make an adequate record for ap-
pealing the time limit placed on jury selection." Id. at 23. The trial court's time limit was thirty
minutes per panel for each party.8 Trial counsel made a general objection to the time limitation
imposed by the trial court, which was overruled, and had previously voiced this objection during
pretrial conferences. See Trial Tr. at 368. We understand the defendant's argument to be that
trial counsel failed to make an individual request for more time to question Juror A, or the juror's
panel.


         With respect to this claim, the post-conviction court correctly noted that "[a] trial court
has broad discretionary power to regulate the form and substance of voir dire," Findings of Fact,

         8
             There were a total of eight panels each consisting of nine to twelve prospective jurors.
                                                        15
Conclusions of Law and Judgment, Appellant's App'x at 510; accord Ward v. State, 903 N.E.2d
946, 955 (Ind. 2009), and concluded that the defendant suffered no prejudice, thus failing to sat-
isfy the second prong of the Strickland constitutional ineffective assistance of counsel standard.
As previously discussed, trial counsel were willing to forgo questioning Juror A in order to ques-
tion other jurors on the panel. This was a tactical decision within trial counsel's discretion. Re-
gardless, even if trial counsel had specifically objected and requested additional time to question
Juror A, the trial court would not have been required to grant the additional time. The trial court
did not abuse its discretion in limiting voir dire to thirty minutes per panel for each party, nor do
we think that it would have been an abuse of discretion had the trial court refused to extend the
time with respect to any individual panel, including that of Juror A. See, e.g., Lucas v. State, 499
N.E.2d 1090, 1093–94 (Ind. 1986) (upholding conviction for multiple counts of burglary where
trial court imposed thirty-five minute time limit for each side on jury selection which was shared
by joint defendants); Zachary v. State, 469 N.E.2d 744, 747 (Ind. 1984) (upholding convictions
for rape and criminal deviate conduct where trial court imposed twenty minute time limit for
each side on jury selection which was shared by joint defendants); Wickliffe v. State, 424 N.E.2d
1007, 1008 (Ind. 1981) (upholding murder conviction where trial court imposed twenty minute
time limit for each side on jury selection); Lynn v. State, 271 Ind. 297, 298–99, 392 N.E.2d 449,
450–451 (1979) (upholding murder conviction where trial court imposed twenty minute time
limit for each side on jury selection); see also Addison v. State, 962 N.E.2d 1202, 1206 (Ind.
2012) (noting trial court's "normal time limit of thirty minutes per side" for jury selection in
murder trial). Even if we hypothesize that the defendant's trial counsel were deficient in failing
to request additional time to question Juror A, such omission did not result in the requisite preju-
dice under Strickland and thus the defendant is not entitled to prevail on this claim.


       With respect to each of the defendant's claims of constitutionally ineffective assistance of
counsel raised on appeal, the evidence, as a whole, does not lead unmistakably and unerringly to
a conclusion opposite that reached by the post-conviction court. The judgment of the post-
conviction court is affirmed.


                                   2. Fair and Impartial Jury



                                                 16
       The defendant's appeal also challenges the post-conviction court's rejection of his claim
that his constitutional right to an impartial jury was violated because, had Juror A fully answered
the jury questionnaire or been further questioned regarding the omitted answers, "a challenge
[for cause] to Juror A would have been sustained." Appellant's Br. at 19. The defendant makes
his claim under both the U.S. Constitution and the Indiana Constitution. See U.S. Const. amend.
VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime shall have been committed . . . .");
Ind. Const. art. 1, § 13(a) ("In all criminal prosecutions, the accused shall have the right to a pub-
lic trial, by an impartial jury, in the county in which the offense shall have been committed[.]");
see also Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 696, 42 L. Ed. 2d 690, 696 (1975)
("[T]he Sixth Amendment's provision for jury trial is made binding on the States by virtue of the
Fourteenth Amendment."). The post-conviction court found that the record did not sustain the
defendant's claim and denied relief. After reviewing the record, we affirm the post-conviction
court's holding.


       In such claims of juror misconduct under the Indiana Constitution, "to warrant a new tri-
al, there must be a showing that the misconduct was gross, and that it probably harmed the de-
fendant." Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988). First, the defendant contends that
Juror A committed gross misconduct by, as discussed above in Part 1(B), failing to fully answer
two questions on the jury questionnaire. Second, the defendant argues that had counsel or the
trial court inquired into Juror A's failure to fully answer one of the questions, that Juror A would
have affirmatively refused to answer even if instructed to do so by the trial court. This, the de-
fendant claims, would have led to the dismissal of Juror A for cause.


       While Juror A should have answered the questions fully, McFarland v. State, 271 Ind.
105, 110, 390 N.E.2d 989, 992 (1979) ("It is the duty of each juror to answer all questions on
voir dire fully and truthfully."), we do not think that Juror A's actions here rose to the level of
gross misconduct. Compare State v. Dye, 784 N.E.2d 469, 474–75 (Ind. 2003) (finding gross
misconduct in murder trial that involved allegations of rape where juror hid the fact that her
brother had been convicted of murder and received a death sentence and the fact that she had
been a victim of rape and that she recalled and compared her experience during the trial), with

                                                  17
Warner v. State, 773 N.E.2d 239, 246–47 (Ind. 2002) (finding no gross misconduct in murder
trial where juror unintentionally omitted the fact that her sister had been murdered and juror tes-
tified that the incident did not affect her impartiality). There is no evidence that Juror A was at
all untruthful, and the manner in which Juror A declined to answer revealed, rather than con-
cealed, that Juror A had some experience with family members' substance abuse and mental
health issues. Nor does the record demonstrate that Juror A lacked impartiality. The defendant
points to specific statements made by Juror A when deposed for purposes of this post-conviction
proceeding and contends that Juror A was biased against the defendant's mitigation evidence.
However, Juror A's deposition, as a whole, reveals that Juror A properly understood the process
of weighing the aggravators and mitigators in the deliberation process and does not show that
Juror A refused to consider the defendant's evidence. Rather, the defendant's dispute concerns
the weight that Juror A gave to the defendant's mitigation evidence. That Juror A did not weigh
the aggravators and mitigators in the manner the defendant would have liked does not show that
Juror A was biased. The actions of Juror A in failing to fully answer two questions on the pre-
trial questionnaire do not establish gross misconduct in this case. Absent a showing of gross
misconduct, the issue of resulting prejudice is irrelevant. The record does not conclusively
demonstrate any error by the post-conviction court on this issue.


       To prevail before the post-conviction court under the federal standard, it was the defend-
ant's burden to "'first demonstrate that a juror failed to answer honestly a material question . . .
and then further show that a correct response would have provided a valid basis for a challenge
for cause.'" Dye, 784 N.E.2d at 472 (alteration in original) (quoting McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 850, 78 L. Ed. 2d 663, 671 (1984)).
Denying this claim, the post-conviction court found "the record contains no support for the prop-
osition that 'Juror A' was attempting to hide anything relevant to his jury service or to mislead
counsel or the court." Findings of Fact, Conclusions of Law and Judgment, Appellant's App'x at
548. More importantly, however, the post-conviction court expressly found that the evidence
presented failed to establish that Juror A "would have been excludable for cause or that trial
counsel would have reasonably used a peremptory strike to remove him at voir dire." Id. On
appeal, the defendant has not presented compelling evidence undermining the post-conviction
court's determination on this issue.

                                                  18
                              3. Discovery and In Camera Review


       The defendant finally contends that the post-conviction court erred in denying his motion
for discovery or in camera review of confidential mental health records pertaining to certain
members of Juror A's family. Post-conviction proceedings are governed by the same rules "ap-
plicable in civil proceedings including pre-trial and discovery procedures." P-C.R. 1(5). Trial
and post-conviction courts are accorded broad discretion in ruling on discovery matters and we
will affirm their determinations absent a showing of clear error and resulting prejudice. State v.
McManus, 868 N.E.2d 778, 790 (Ind. 2007).


       The post-conviction court's ruling, the defendant argues, "deprived [him] of his ability to
develop necessary facts in support of his claim that [Juror A] was not impartial and should have
been stricken for cause." Appellant's Br. at 20. However, the defendant did discover the circum-
stances surrounding the confidential mental health records and was able to discuss the matter
with Juror A during the deposition. Thus, what the defendant sought with this motion was more
detail and in matters of a very private concern. We think such detail carries relatively little
weight in comparison to the privacy interests of Juror A and Juror A's family. See Dye, 784
N.E.2d at 477 ("The State also argues that the post-conviction court's decision 'will open the
floodgates to numerous juror investigations after sound verdicts have been rendered' and warns
that the corollary response of the State will be 'to conduct extensive pre-trial investigations of the
venire to protect convictions and sentences.' We agree that these consequences are extremely
undesirable. This is so not only because of the societal interest in the finality of criminal pro-
ceedings but also because of our interest in assuring the safety and personal privacy of citizens
who serve as jurors. Post-trial investigations of jurors should be the exception, not the rule.").
Through other available means, the defendant was able to develop a record of Juror A's experi-
ences relating to Juror A's omitted answers on the questionnaire. The defendant has failed to
demonstrate that the post-conviction court's refusal to allow the defendant to comb through the
private and confidential mental health records of Juror A's family was clearly erroneous.


                                            Conclusion

                                                 19
       The post-conviction court granted the defendant's request to vacate his death sentence. In
thus imposing a sentence of life imprisonment without parole, the court denied the defendant's
request for a reversal of his convictions and remand for a new trial based on claims that the de-
fendant received constitutionally ineffective assistance of trial defense counsel; that the defend-
ant was deprived of his right to an impartial jury under the U.S. and Indiana constitutions; and
that the defendant was entitled to discovery or in camera review of the mental health records of
Juror A's family. In his appeal from this latter denial of post-conviction relief, the defendant has
not met his burden to obtain appellate relief. He has not established that the post-conviction evi-
dence conclusively points to a conclusion contrary to that of the post-conviction court. We af-
firm the judgment of the post-conviction court and the defendant's resulting sentence of life im-
prisonment without parole.


Rucker, David, Massa, and Rush, JJ., concur.




                                                 20
