DOB: 01-03-1960
DOC#: 952132 White Male

Vanderburgh County Circuit Court
Judge Richard L. Young

Prosecutor: Stanley M. Levco, Mary Margaret Lloyd

Defense: Michael J. Danks, Dennis A. Vowels

Date of Murder: July 21, 1994

Victim(s): Debbie Wrinkles W/F/31 (Wife); Tony Fulkerson W/M/28 (Brother of Debbie); Natalie Fulkerson W/F/26 (Wife of Tony)

Method of Murder: shooting with gun

Summary: After continuous marital problems with her husband Matthew Wrinkles, Debbie moved out of the house with their two children, going to live with Debbie's brother, Tony, and his wife, Natalie, on Tremont Drive in Evansville.

Twice in the past Wrinkles had threatened Debbie with a gun. Soon after, Wrinkles filed for divorce. His mother was concerned about his behavior and had him committed. After three days of evaluation, he was released.

In the next two weeks, despite a Protective Order in effect, Wrinkles went looking for Debbie. He showed up at her place of employment, and at the homes of two of her friends, dressed up in camouflage demanding to see her. He was unsuccessful each time.

On July 20, 1994 Wrinkles, Debbie and their attorneys met for a provisional hearing in their divorce proceeding. They reached an agreement to set aside the Protective Order, and for Wrinkles to have visitation. They also agreed for Debbie to meet Wrinkles with the kids at a restaurant later that day. Debbie decided not to show up for the meeting.

Later that night, Wrinkles again dressed up in camouflage and drove to the home of Tony Fulkerson, where Debbie and the kids were staying. He parked a block away, cut the telephone wires, and kicked in the back door. He was armed with a .357 handgun and a knife.

When he was finished, Natalie was dead on the front porch with a gunshot wound to her face; Tony was dead in the bedroom with four gunshot wounds, to his face, hip, chest, and back; Debbie was dead in the hallway with a gunshot wound to her chest/shoulder area.

One of the children, Lindsay Wrinkles saw her father shoot her mother, then open her shirt and attempt CPR. Lindsay told him she was going to call police, and he fled from the house. Wrinkles was later arrested at the home of his cousin, where the .357 murder weapon was recovered.

Conviction: Murder, Murder, Murder

Sentencing: June 14, 1995 (Death Sentence)

Aggravating Circumstances: b(8) 3 murders

Mitigating Circumstances: no significant history of criminal conduct, methamphetamine intoxication at time of murders, extreme emotional disturbance, grew up in dysfunctional family

Wrinkles executed at Indiana prison

By Eric Bradner - CourierPress.com

December 11, 2009

MICHIGAN CITY, Ind. — Strapped to a gurney and hooked up to an IV, the death warrant was read to Matthew Eric Wrinkles just after midnight. Prison guards opened the blinds to an adjoining room so he and his witnesses could exchange a final look. When asked for his final words, Wrinkles said: “Not at this time, let’s get it done. Let’s lock and load. It’s plagiarized, but what the hell.”

The man convicted of the July 1994 murders of his estranged wife and two of her relatives was set to die.

The chemicals were pumped into his bloodstream with no complications. In seconds, he was unconscious. Minutes later, his lungs were paralyzed and his heart was stopped. Doctors pronounced Wrinkles dead at 12:39 a.m. Friday. He was 49.

As his execution approached, prison officials said Wrinkles cooperated fully and complied with all instructions. He had a "special meal" on Tuesday night that was ordered from a Michigan City restaurant and consisted of two salads with ranch dressing, rolls, prime rib with a loaded baked potato and pork chops with steak fries. Both Tuesday and Wednesday night, Wrinkles requested and received doses of Ativan, an anti-anxiety drug, as many death row inmates do.

On Thursday, Wrinkles chose to begin his last day by skipping breakfast. Throughout the day, he met for the last time with family and friends as well as spiritual advisers. Among those he saw on Thursday were his daughter, Lindsay Wrinkles, and son, Seth Wrinkles. He ate snacks and had “a real connected time with his family members,” according to Doug Garrison, the Indiana Department of Correction communications chief.

When his visitors left at 4 p.m., Wrinkles showered and then was moved to a holding room next to the execution chamber. There, he made phone calls. Among them were calls to people he had come to communicate with in the Netherlands. He met again with spiritual advisers who left at 11 p.m. — the hour they were required to do so. Stationed outside the room in which Wrinkles spent his final hour were two guards he had come to know. “He knows them, and he may have even had some hand in selecting them,” Garrison said.

The list of those who would witness his execution was private, but Joe Cleary, one of Wrinkles' attorneys, said lawyers and spiritual advisers would be present.

As his final moments slipped away, his victims' families — some of whom thought he should be executed and others who preferred he live out his life in prison — waited. Some attended prayer vigils. Others sat by their phones awaiting word of his death.

In the late Thursday night and early Friday morning hours, the temperature outside the prison dipped to 12 degrees and the wind whipped off nearby Lake Michigan, keeping the number of protesters who often gather outside the prison before executions to a handful. “Eric’s case really shows that (seeking the death penalty) is the prosecutor’s call, and it also has to happen in a county that has a pretty big budget and it also helps if the victims are attractive and white,” said Marti Pizzini, 69, of Chesteron, who protested along with several other members of the Duneland Coalition to Abolish the Death Penalty.

Three execution teams made preparations: one to shackle him to a gurney and wheel him into the execution chamber, a second to hook up an IV and the final team to start the lethal drip.

In Indianapolis, Vanderburgh County Prosecutor Stan Levco waited with two deputy attorneys general. They were on hand in case of any last-minute legal developments — an unlikely occurance, since Wrinkles, who had exhausted his state and federal appeals, last month ordered his lawyers not to seek clemency from Gov. Mitch Daniels. Indiana Department of Correction Commissioner Edwin Buss waited at the Capitol, as well.

The team running the execution strapped Wrinkles to the gurney and hooked up the IV. The governor signaled to the team in Michigan City that no last-minute challenges had delayed the execution just after midnight. The death warrant was read to Wrinkles. Indiana began its first execution since Michael Lambert was put to death for murdering a Muncie police officer on June 15, 2007. First, Sodium Pentothal rendered Wrinkles unconscious. Then, pancuronium bromide paralyzed his muscles and respiratory system. Finally, potassium chloride stopped his heart. Doctors declared Wrinkles dead. His body will be transported to Evansville, where he will be buried.

Wrinkles, an Evansville resident, was found guilty of the July 21, 1994, shooting deaths of his estranged wife, Debra Jean Wrinkles, 31; her brother, Mark "Tony" Fulkerson, 28; and Fulkerson's wife, Natalie Fulkerson, 26. The slayings occurred nine days after a doctor ended Wrinkles' three-day stay in the Southwestern Indiana Mental Health Center despite his mother's reports of his erratic behavior. The doctor said Wrinkles was not "gravely disabled."

According to police, Wrinkles was high on methamphetamine and dressed in camouflage and face paint when he cut the phone lines at the Fulkerson home, where his estranged wife was staying, at 2 a.m. that summer night. Wielding a knife and a .357 Magnum revolver, Wrinkles kicked in the door. First he shot Tony Fulkerson. Next he ignored his daughter's pleas and shot his wife. Then he shot Natalie Fulkerson.

All the way through the legal process and even after Wrinkles’ fate was sealed, family members of his victims disagreed as to whether death was the appropriate punishment. Mae McIntire, the mother of Wrinkles' estranged wife, said his fate was well-deserved. "I can remember all the abuse that my daughter went through and the abuse that my whole family went through with him," McIntire said late Thursday night, as Wrinkles' execution approached.

She chose to stay home in Evansville rather than make the trip to Michigan City. “Some people might think I'm heartless, but I'm not,” McIntire said. “He's never told me he's sorry for what he did to my children, and I don't have any remorse for him. It's never going to get any better as long as he's living.”

Mary Winnecke, the mother of Natalie Fulkerson, asked Daniels to grant Wrinkles clemency. She preferred having the man spend his life in prison.

Tracy Hobgood, the niece of Tony Fulkerson, was in the house and said she survived Wrinkles' wrath only because Natalie Fulkerson stepped in front of her. Nonetheless, she opposed his execution, attending a prayer vigil in Evansville on Thursday night. “Eric was addicted to meth when he did this. Eric wasn't in his right mind when he did this. If they could just understand that they're killing a man tonight that really doesn't understand what he did,” Hobgood said, her voice trailing off. “Killing Eric tonight is not going to solve anything.” Hobgood wrote Wrinkles a 21-page letter in March, telling him she had finally forgiven him and explaining why. “I forgave him because my faith allowed me to,” she said. “I told him I would never forget, though.”

Before his death, Wrinkles provided a statement intended to serve as his final statement: “I wish I knew then what I know now. That is, as Einstein said, ‘only a life lived for others is worth living.’ Fifteen years ago I took the lives of people I loved, my wife, my friends. I did so voluntarily taking drugs to the extent I became an addict of the worst kind. I caused enormous pain to many. I am not proud of the man I was. But I am no longer that man. In the past 15 years I have come to grips with the extent of the harm I caused. Although tonight I pay for my actions w/ my life, it has been the last 15 years that has been the truth punishment. Living w/ the knowledge of the pain I caused was the severest punishment possible. Tonight my children lose their natural father. My friends lose me. My brothers grieve. More victims are created. As Albert Camus said: To kill a man in a paroxysm of passion is understandable. To have him killed by someone else after calm and serious mediation and on the pretext of duty honorably discharged is incomprehensible.”

His daughter, Lindsay Christmas, provided the following statement in hand-written form: “I have been contacted by several members of the media. I have been asked to give interviews. I chose to make this statement and ask the media to stop contacting me. Regardless of what my dad has done, he’s still my dad. Having to re-live this ordeal is tragic. Re-living the day I had to testify against my dad, which I did not want to do, but was forced upon me, did and has affected my life, and the relationship I haven’t had with my father all these years. Recently we have made peace within each other. I will go on with my life having peace within me. Knowing god will take care of all of us. My father, Seth, and I have written a book titled: “Ridin the White Line.” If anyone wants to learn or know about my parents, or circumstances read the book when it is released. Now I pray that dad is reunited in heaven, and this story shows a realization what drugs can do to themselves, and others. And this country should abolish the death penalty. Our God is a loving God. He forgives all.”

State executes man who killed three

By Charles Wilson - The Indianapolis Star

Associated Press - December 11, 2009

MICHIGAN CITY, Ind. -- An Indiana death row inmate who refused to request clemency was executed early today for the 1994 shooting deaths of his estranged wife and two of her relatives, saying he was "not proud of the man I was, but I am no longer that man."

Matthew Eric Wrinkles died from a lethal injection at 12:39 a.m. at Indiana State Prison in Michigan City, said Department of Correction spokesman Doug Garrison. Authorities said Wrinkles was on methamphetamine when he cut the phone lines, broke into his brother-in-law's Evansville home and killed his wife, her brother and her sister-in-law in July 1994.

"Tonight my children lose their natural father, my friends lose me, my brothers grieve. More victims are created," Wrinkles wrote in his final statement. "As Einstein said, only a life lived for others is worth living." Moments before his death, he said: "Let's get it done. Let's lock and load. It's plagiarized, but what the hell."

Wrinkles didn't pursue any last-minute appeals or efforts to save his life Thursday. The 49-year-old inmate had told his attorneys not to make any such efforts, and they agreed to abide by his wishes. Indiana Public Defenders Council Executive Director Larry Landis, a spokesman for the attorneys who represented Wrinkles, said the inmate was "tired of fighting" and had resigned himself to death.

Wrinkles was convicted of murdering his wife, Debra Jean Wrinkles, 31; her brother, Mark "Tony" Fulkerson, 28; and Fulkerson's wife, Natalie "Chris" Fulkerson, 26.

Wrinkles adult daughter, Lindsay Christmas, issued a handwritten statement that said she recently made peace with her father. "Regardless of what my dad has done, he's still my dad," she wrote. "I will go on with my life having peace within me."

Debra Wrinkles' mother, Mae McIntire, said in an interview after the execution that he only recently began showing remorse. "I thought it was a little bit late, him saying the things he did. He could have said that a long time ago, but he waited until the end," she said. "I'm going to try to start my life over after 15 years and try to have a better life."

The killings came just days after Wrinkles' mother tried to have him committed due to his erratic behavior but was told he didn't meet the criteria. He had been briefly hospitalized at a different hospital about two weeks before the killings but was released after a psychiatrist determined he was not "gravely disabled," according to records from a 1999 court hearing.

Authorities say Wrinkles was high on methamphetamine when he cut the phone lines to the Fulkerson home about 2 a.m. on July 21, 1994. He was wearing camouflage clothes and face paint and armed with a gun and a knife when he kicked open the door of the home, where his estranged wife and children were staying. Wrinkles shot Mark Fulkerson in front of Fulkerson's 3-year-old son, then shot Debra Wrinkles as their daughter pleaded for her mother's life. Finally, he shot Natalie Fulkerson in the face.

"I am not proud of the man I was, but I am no longer that man," Wrinkles wrote in his final statement. Wrinkles has said the killings wouldn't have happened except for his methamphetamine addiction and his fear he would never see his children again. But McIntire has said Wrinkles abused her daughter long before he killed her.

Defense attorney Joanna Green said that wasn't the man he knew. "During the time he's been on death row, he's obviously not taking drugs," Green said. "While there's not a lot a person can do on death row to make up for their crimes ... he has done what he can."

Outside the prison, a half-dozen members of the Duneland Coalition to Abolish the Death Penalty bundled up against the frigid cold Thursday night to protest. They beat drums and carried signs calling for a state moratorium on capital punishment including one that read, "The state is not the Angel of Death." The drum beats could be heard inside the prison. They were meant to support Wrinkles, said leader Marti Pizzini, 69, of Chesterton, who has been protesting executions at the prison for 20 years.

Wrinkles' execution was Indiana's first in more than two years. Before Wrinkles, the last person put to death in Indiana was Michael Lambert, who was executed in June 2007 for fatally shooting a Muncie police officer 16 years earlier.

Indiana inmate executed for 1994 triple murder

By Charles Wilson - Northwest Indiana Times

Friday, December 11

Matthew Eric Wrinkles' children spent the last 15 years knowing their father as a murderer who while high on methamphetamine cut the phone lines of their uncle's home, kicked in the door and shot their mother. Wrinkles, also convicted of killing his wife's brother and sister-in-law, wanted to reconcile with his two children and met with them before he was executed early Friday at the Indiana State Prison, his attorney said. His daughter was 14 when she pleaded for her mother's life before witnessing the shootings July 21, 1994. "Regardless of what my dad has done, he's still my dad," Lindsay Christmas, now 28, said in a handwritten note released shortly after her father died. "I will go on with my life having peace within me."

His 21-year-old son, Seth Wrinkles, did not release a statement but was with his sister at the prison in Michigan City, about 40 miles east of Chicago along Lake Michigan, said defense attorney Joanna Green. She said Matthew Wrinkles wanted to make peace with his children. "That was his prime concern," Green said.

Wrinkles, 49, died from a lethal injection at 12:39 a.m. while strapped to a gurney inside the state prison, Department of Correction spokesman Doug Garrison said. Wrinkles didn't pursue any last-minute appeals or efforts to save his life.

Wrinkles shot his wife, Debra Jean Wrinkles, 31, after shooting her brother, Mark "Tony" Fulkerson, 28, in front of Fulkerson's 3-year-old son. He then shot Fulkerson's 26-year-old wife, Natalie, in the face. "I am not proud of the man I was, but I am no longer that man," Wrinkles wrote in his final statement. "Tonight my children lose their natural father, my friends lose me, my brothers grieve. More victims are created," Wrinkles added. "As Einstein said, only a life lived for others is worth living." Moments before his death, he said: "Let's get it done. Let's lock and load. It's plagiarized, but what the hell."

His mother-in-law hasn't forgiven him. She said he only recently began showing remorse. "I thought it was a little bit late, him saying the things he did. He could have said that a long time ago, but he waited until the end," Mae McIntire, 79, said shortly after the execution.

But she said she was glad for the children's sake that they finally reconciled with their father. McIntire said Wrinkles had blamed his daughter for testifying against him at trial, something Christmas said she did unwillingly. "Those children need to go on," McIntire said. Noting that she wanted to do the same, she added: "I'm going to try to start my life over after 15 years and try to have a better life."

The 1994 killings came just days after Wrinkles' mother tried to have him committed due to his erratic behavior, but she was told he didn't meet the criteria. He had been briefly hospitalized at a different hospital about two weeks before the killings but was released after a psychiatrist determined he was not "gravely disabled," according to records from a 1999 court hearing.

Authorities said Wrinkles was high on methamphetamine when he cut the phone lines to the Fulkerson home about 2 a.m. He was wearing camouflage clothes and face paint and armed with a gun and a knife when he kicked open the door of the home, where his estranged wife and children were staying.

Wrinkles had said the killings wouldn't have happened except for his methamphetamine addiction and his fear he would never see his children again. But McIntire has said Wrinkles abused her daughter long before he killed her. Wrinkles apologized to family members on an episode of "The Oprah Winfrey Show" that aired last month. His nieces and nephew said they forgave him and didn't want him to die.

Outside the prison, a half-dozen members of the Duneland Coalition to Abolish the Death Penalty bundled up against the frigid cold Thursday night to protest. They carried signs calling for a state moratorium on capital punishment and beat drums that could be heard inside the prison. The drums were meant to support Wrinkles, said leader Marti Pizzini, 69, of Chesterton, who has been protesting executions at the prison for 20 years.

Wrinkles' execution was Indiana's first in more than two years. Before Wrinkles, the last person put to death in Indiana was Michael Lambert, who was executed in June 2007 for fatally shooting a Muncie police officer 16 years earlier.

Wrinkles executed for 1994 murders

By Nathan Ryder - WFIE.com

December 11, 2009

MICHIGAN CITY, IN (WFIE) - Eric Wrinkles has been put to death, 15 years after the murders of his estranged wife and two of her relatives. He died by lethal injection just after 12:30 Friday morning.

Wrinkles spent his final few hours visiting with family and clergy members. Prison officials in Michigan City say he also made more than a dozen phone calls, some to people as far away as the Netherlands.

Wrinkles was convicted of breaking into his brother-in-law's Evansville home in July 1994. He was wearing camouflage and face paint when he shot his wife, Debra Jean Wrinkles, her brother, Mark "Tony" Fulkerson, and Fulkerson's wife, Natalie "Chris" Fulkerson.

In a written statement, Wrinkles reflected on the events that left him sentenced to death. "Fifteen years ago I took the lives of people I loved, my wife, my friends. I did so voluntarily after taking drugs. To the extent I became an addict of the worst kind. I caused extensive pain to many," said the statement.

Inside the execution chamber, Wrinkles' death warrant was read and a deadly cocktail of three drugs was injected through IV lines.

Lindsay Christmas, one of Wrinkles' children witnessed his execution and released the following statement: "Regardless of what my dad has done, he's still my dad. Having to relive this ordeal is tragic." Her statement goes on to say that she didn't want to testify against her father and that it: "has affected my life and the relationship I haven't had with my father all these years. Recently we have made peace within each other. I will go on with my life having peace within me."

For the rest of the prison population here at Michigan City Prison, life goes back to normal. Their lockdown status was lifted at 12:00 p.m. and the prison is now back open as normal.

Wrinkles is the first Indiana death row inmate to be executed since 2007.

Wrinkles' last words before his execution: 'Let's lock and load'

By Jerry Davichon - Gary Post Tribune

December 11, 2009

At 12:39 a.m. this morning, convicted killer Matthew Eric Wrinkles was officially pronounced dead after a lethal injection execution at Indiana State Prison in Michigan City. Late last night I met about a dozen protesters in the bitter cold who demonstrated against the execution, the first in this state since 2007.

Inside the prison, before his lethal injection, Wrinkles was asked if he wanted to make one last oral statement. He replied, "Not at this time lets get it done, lets lock and load...it's plagiarized but what the hell."

His last written statement was: "I wish I knew then what I know now - that is, as Einstein said, 'only a life lived for others is worth living.' "Fifteen years ago I took the lives of people I loved, my wife, my friends. I did so after voluntarily taking drugs to the extent I became an addict of the worst kind. I caused enormous pain to many. I am not proud of the man I was. But I am no longer that man. In the past 15 years I have come to grips with the extent of the harm I caused. Although tonight I pay for my actions w/ my life, it has been the last 15 years that has been the true punishment. Living w/ the knowledge of the pain I caused was the severest punishment possible. Tonight my children lose their natural father. My friends lose me. My brothers grieve. More victims are created. As Albert Camus said: To kill a man in a paroxysm of passion, Is understandable. To have him killed, by someone else after calm and serious mediation and on the pretext of duty honorably discharged is incomprehensible."

Impossible to forgive

After 15 years, mother can't forgive killer who took son, daughter, daughter-in-law

By Seth Grundhoefer - CourierPress.com

10-05-09

EVANSVILLE — The last time Mae McIntire saw Eric Wrinkles, he was being sentenced for the murder of her son, daughter and daughter-in-law. That was 15 years ago, but she still remembers his "radical," almost seemingly careless courtroom demeanor all too well.

After seeing Wrinkles again via satellite as a guest during a recent taping of "Oprah" after all those years, she didn't see much of a change. "He wasn't as angry, but he was still trying to lie to make himself look good," she said. "To me, he was the same guy that he used to be. ... He apologized to the kids, but he's never said anything to me."

In the early morning of July 21, 1994, Wrinkles shot and killed his wife, Debra Jean Wrinkles, 31; her brother, Mark "Tony" Fulkerson, 28; and Fulkerson's wife, Natalie "Chris" Fulkerson, 26. Wrinkles is on death row at the Indiana State Prison in Michigan City. An execution date has not been set.

Two weeks ago, survivors of the shootings and the victims' family members were invited to Chicago to tape a segment of "Oprah" and speak to Wrinkles via satellite. McIntire said her granddaughter, Tracy Hobgood, who was in the home at the time of the shootings, wrote the show a letter explaining that she wanted to tell Wrinkles she forgave him.

McIntire, now 79, underwent risky open-heart surgery in April. Out of fear of her health, her son cautioned her not to go on the show, but she said she "had to get some things off my chest." "I wanted to face him, and tell him things that I haven't had a chance to tell him."

While many of the guests who appeared on the show have forgiven Wrinkles, McIntire does not. Nor does she oppose him being sentenced to death. She feels it would not only be justified, but also would provide her and others with closure. "I'd just like to see this thing over, so people can go on with their lives," she said. "People have asked me, 'Can you sit there and see him get executed?' And I say, 'Yes, I can.'"

Though her remarks may seem harsh, she adds that Wrinkles terrorized her family long before the killings. He had a history of drug abuse, made threats to her family and often physically abused McIntire's daughter. When Debra Wrinkles went to her brother's house to seek refuge from Wrinkles' abuse, Wrinkles killed her and the two others in front of their own children. "He told her, 'You better be smiling today, cuz' you won't be smiling tomorrow," McIntire said. "I can't forgive a man like that. There's just nothing good about him."

Like McIntire, Mary Winnecke hadn't spoken to Wrinkles since he was convicted of the murder of her daughter, Natalie Fulkerson. However, she had a different message for Wrinkles.

Although Winnecke said Wrinkles should be held accountable for his crimes, she doesn't believe the death penalty is the Christian response. In fact, over the summer, Winnecke began a letter-writing campaign to Gov. Mitch Daniels' office asking that Wrinkles' sentence be commuted to life in prison and to end the death penalty all together.

At the beginning of the show, Winnecke sat in the audience near McIntire as Winfrey joined Winnecke's grandchildren, Kim Dillman and Matthew Heuck — survivors of the shootings — center stage. Not long after, a live satellite feed of Wrinkles popped onto a nearby screen. His son, Seth, was at his side. He looked older, and yet, not much different from what Winnecke expected.

In court, Winnecke said, Wrinkles was dark-complected and "looked fantastic." "When I saw him in court, I was hurt. Because I thought, 'You look so good, and I hurt so bad,'" she said. But just as 15 years on death row has changed Wrinkles' physical appearance, it also has changed the way Winnecke looks at Wrinkles.

Since the trial, Winnecke has forgiven Wrinkles, and as a devout Catholic, she prays Wrinkles will ask for God's forgiveness. Getting to that stage, though, proved to be an effort of both time and faith, she said. "At first, you're in shock, and you're hurt, and life is just so confusing. I couldn't even think how to cook an egg. ... But then as life went on, I looked inside of myself and realized that in order to go forward, I had to forgive him."

Winnecke didn't plan to speak to Wrinkles during the taping, but as the show went on, she felt compelled to tell him she forgave him. But in return, she wanted something more than a personal apology from Wrinkles. She asked him to "get down on his knees" and ask for God's forgiveness, too. "When I told him that, he just sat there and shook his head," she said. "He didn't know what to reply."

Winnecke's grandchildren shared her sentiments.

From jail, Wrinkles had written them letters asking for their forgiveness. Now both adults with children of their own, Dillman and Heuck were ready to tell Wrinkles to his face they forgive him, and convey that, with the help of God, hate has not consumed them. Why exactly? For Winnecke, the answer comes in examining the last moments of her daughter's life. "Natalie died stepping in front of the gun. She was pushing (Tracy Hobgood) out the door. So, for her to give her life for another, how can you turn around and teach your children how to hate?" Winnecke said. "You can't. It's just impossible."

Winnecke said the show is slated to air sometime in October, but a time and exact date have not been determined.

Final hours of a death row inmate

Anti-death penalty group holds vigil outside Indiana jail before Wrinkles' execution

By Chris Keller - Northwest Times

Friday, December 11, 2009

MICHIGAN CITY | His attorneys under orders to not make any last-minute appeals on his behalf, death row inmate Matthew Eric Wrinkles spent the last few hours of his life meeting with members of the clergy.

Outside Wrinkles' cell, and beyond the prison walls and past the gates, the Duneland Coalition to Abolish the Death Penalty set up shop in the parking lot of Indiana's death row -- the Indiana State Prison in Michigan City. With temperatures already in the teens, members of the group braved the wind with signs, drums and a public address system to protest what they see as an inhumane punishment.

Shortly after midnight Friday, the 49-year-old was scheduled to receive a fatal combination of sodium pentathol, procurium bromide and potassium chloride, which will cause him to fall asleep, paralyze his lungs and stop his heart. He is Indiana's 92nd inmate to be put to death, and the first in more than two years.

Wrinkles was sentenced to death row after a Vanderburgh County jury convicted him of the 1994 killings of his estranged wife, her brother and her sister-in-law: 31-year-old Debra Wrinkles, 28-year-old Tony Fulkerson and 26-year-old Natalie Fulkerson.

Wrinkles ate his "last meal" Tuesday: prime rib with a loaded baked potato, pork chops with steak fries and two salads with ranch dressing and rolls. In the hours leading up to the execution, Wrinkles was allowed to visit with family and friends.

At 4 p.m. Thursday, he was taken to a holding cell, where he met with a spiritual adviser and made phone calls.

Outside the jail, the Duneland Coalition held candles and lights, and one by one they stood behind the microphone offering their beliefs. One of the group's members, Chesterton resident Marti Pizzini, said she has been coming to execution-night vigils for about 17 years. A social worker, nurse and teacher, Pizzini calmly and systematically recites arguments against capital punishment, from both a moral and a pragmatic perspective. "There's a lot of things we can do to stop crime and spending $1 million to put someone to death isn't one of them," Pizzini said. "We do a disservice to think the world is safer because we killed a killer."

State law provides for the condemned to have five friends or family members present for the execution, and for the victims to have eight members of the immediate family present. Indiana Department of Correction spokeswoman Pamela James said the exact number of witnesses present, and their identities, are withheld per state law.

Attorney Joe Cleary has said Wrinkles had invited two spiritual advisers to witness his death but wasn't sure whether any family members would be present. Deacon Malcolm Lunsford, of Merrillville's SS. Peter and Paul Catholic Church, and the Rev. Thomas McNally, of the Congregation of Holy Cross in South Bend, this week told The Times they will administer Wrinkles' final sacraments.

Mary Winnecke, the 65-year-old mother of Natalie Fulkerson, told The Associated Press she planned to attend a prayer vigil at her church in Evansville, and would not be at the prison. Mae McIntire, the 79-year-old adoptive mother of Debra Wrinkles, had planned to attend the execution but had heart surgery in April and now plans to stay home.

While Winnecke has been able to find some measure of forgiveness, and led a letter-writing campaign to Gov. Mitch Daniels pleading for clemency for her daughter's killer, McIntire has not. "It's just sad that my daughter had met somebody like him when she was such a good person," she said. "I don't like to see nobody die, but when they do something like he did, I don't see why he should live."

Wrinkles' death is Indiana's first since June 2007, when the state executed Michael Lambert after a 1991 conviction for fatally shooting Muncie police Officer Gregg Winters in the back of the head.

Indiana has 16 prisoners on death row, and all but one are housed at the Indiana State Prison in Michigan City. Debra Denise Brown, who was convicted in 1986 of killing a 7-year-old in Gary, remains housed in Ohio and sentenced to death in Indiana, which lacks facilities for female death row inmates.

Execution of Wrinkles to end 2-year state hiatus

By Eric Bradner - Evansville Courier and Press

December 9, 2009

INDIANAPOLIS — When Matthew Eric Wrinkles is put to death early Friday at the Indiana State Prison in Michigan City, it will have been more than two years since Indiana executed a death row inmate.

July 15, 2007, was the last time a death sentence was carried out. That's when Michael Lambert was given a lethal injection. Lambert was convicted of the 1990 slaying of Muncie police officer Gregg Winters. Lambert was picked up by police for public intoxication, but officers did not find the handgun Lambert was carrying. While Winters was taking Lambert to jail in the back of his squad car, Lambert shot Winters five times in the back of the head and neck.

The time between Lambert's and Wrinkles' executions is the longest period between executions in Indiana since a nine-year gap between when William Vandiver died in the electric chair in 1985 to when Gregory Resnover was electrocuted in 1994. Even at the federal prison in Terre Haute, where three men — including Oklahoma City bomber Timothy McVeigh — have been put to death, there hasn't seen an execution since 2003.

It's indicative of a slow movement away from the death penalty in favor of life without parole, a verdict prosecutors believe can be achieved more quickly and cheaper. The number of executions nationwide began to rise in the 1980s and peaked in 1999, when 98 inmates were put to death. But a steady decline began over the next decade, and in 2008, only 37 executions took place.

Larry Landis, the executive director of the Indiana Public Defender Council, said the death penalty is being sought less often for two reasons. One is the fiscal impact on county budgets. The other is the reduced likelihood of the death sentence actually surviving a jury and the appellate process. "They don't want to face the risk of spending a lot of money and not getting what they're asking for" when life without parole is a guarantee the killer will die behind bars, Landis said.

The Indiana Criminal Law Study Commission found in 2002 that the total cost of death penalty cases is an average of 38 percent more than that of imprisoning a person for life without parole. Counties are eligible for aid from the Indiana Public Defender Commission that can cover up to half the cost of a trial; still, the expense can become almost unbearable for some rural counties.

Pike County Prosecutor Darrin McDonald cited cost as one reason he agreed to put Nicholas Harbison, who pleaded guilty to the 2006 slaying of three people, behind bars for life. Vanderburgh County Prosecutor Stan Levco has said that while expense alone isn't enough to stop him from seeking the death penalty, it does cause him to proceed with "greater reluctance."

Landis said defense attorneys are required to examine the psychological and social history of the accused — life stories that tell how accused killers got to be who they are. Those stories, he said, affect juries. "There seems to be a willingness to say, 'Well, it isn't excusable, but we're willing to consider the human condition and how they got so twisted and gnarled, deformed,'" Landis said. "As long as they're going to be confined in prison and not released, I don't feel the need to kill them."

Prosecutors such as McDonald say they won't rule out capital punishment, because they are unwilling to send the message that those who commit heinous crimes won't be put to death if they commit those crimes in rural counties.

Victims' mothers differ on death penalty

The Indianapolis Star

December 9, 2009

Mary Winnecke lost the daughter who was her best friend. Mae McIntire’s adopted son and daughter — her sister’s children whom she had raised as her own — died the same day. But the two Evansville, Ind., women who’ve lived with their losses for 15 years are starkly divided over whether Matthew Eric Wrinkles should pay the ultimate price for his crimes.

Wrinkles, 49, is scheduled to be executed by lethal injection before dawn Friday at the Indiana State Prison in Michigan City. He has exhausted his appeals in state and federal courts and last month declined to request clemency from Gov. Mitch Daniels. His attorneys say they don’t intend to file any legal action that would contradict his wishes.

Winnecke, a Catholic, opposes the death penalty and thinks Wrinkles should stay behind bars for the rest of his life. McIntire wants him dead. “Everybody says Mae, let it go ... because it’s over with,” McIntire said. “But I don’t see why he should live, as much trouble as he caused the families.”

Wrinkles declined an Associated Press request for an interview. Defense attorney Joanna Green said Wrinkles had changed while in prison. “While there’s not a lot a person can do on death row to make up for their crimes ... he has done what he can,” Green said. That doesn’t change anything for McIntire and Winnecke.

Debra Jean Wrinkles, McIntire’s daughter and Wrinkles’ wife, died July 21, 1994, along with her brother, Mark “Tony” Fulkerson, and his wife, Natalie, Winnecke’s daughter. Their murders occurred just days after Wrinkles’ mother had tried to have him committed because of his erratic behavior.

Court records show Wrinkles had been briefly hospitalized about two weeks before the killings but was released after a psychiatrist determined he was not “gravely disabled.” Doctors told his mother he didn’t meet the criteria for a second commitment.

Debra Wrinkles and her children were staying at the Fulkersons’ home when Wrinkles climbed over a fence about 2 a.m. and cut the phone lines. Court documents show he was wearing camouflage clothes and face paint and armed with a gun and a knife when he kicked open the door of the home where his estranged wife was staying. Wrinkles shot Mark Fulkerson in front of Fulkerson’s 3-year-old son, then shot Debra Wrinkles as their daughter pleaded for her mother’s life. He shot Natalie Fulkerson in the face.

Winnecke, 65, says her daughter stepped in front of Wrinkles’ gun to keep a 19-year-old relative from being shot. That’s one reason she led a letter-writing campaign to Daniels pleading for clemency for her daughter’s killer. “She died giving her life for another. How could they take another life in her name?” she asked.

She said she has always opposed the death penalty for religious reasons but that her daughter’s death crystallized her opposition. “Every time I say that I am against the death penalty, I stop and think, ’Do I really mean it?”’ she said. “I face it every time. I face the pain, I face the loss of my daughter, but I know that it is right.”

McIntire, 79, hasn’t been able to find forgiveness. She said Wrinkles abused her daughter, who supported the family by managing a bread store, long before he killed her. “He claimed he was on drugs and (that) caused it all, but he had been that way all his life,” she said. “It’s just sad that my daughter had met somebody like him when she was such a good person. “I don’t like to see nobody die, but when they do something like he did, I don’t see why he should live.”

Attorney Joe Cleary said Wrinkles had invited two spiritual advisers to witness his death but wasn’t sure whether any family members would be present. McIntire and Winnecke won’t be.

Winnecke likely will attend a prayer vigil at her church in Evansville. Mae McIntire had planned to attend the execution but had heart surgery in April and now plans to stay home. “I’ll just be glad when this is all over and we can just get on with our life,” McIntire said.

Both women spoke with Wrinkles by video during a recent appearance on Oprah Winfrey’s television show. Winnecke urged Wrinkles to ask God for forgiveness. She said she still hopes he does that before he dies. McIntire said she’s heard enough. “He’s been in prison for 15 years and he’s still trying to make himself look good,” McIntire said. “He never once has said to me that he was sorry for killing Debbie and Tony.”

Wrinkles’ execution will be Indiana’s first since June 15, 2007, when Michael Lambert was put to death for fatally shooting a Muncie police officer 16 years earlier.

Searching for Closure

Oprah.com

Eric Wrinkles, a father of two, was in the middle of a nasty divorce and custody battle when his estranged wife, Debbie, went to live with her brother and his family. On July 21, 1994, Eric broke into his brother-in-law's home at 2 a.m. wearing camouflage and armed with a .357-caliber Magnum. In a rage, he shot and killed Debbie, her brother Tony and his wife, Natalie. Four children were home at the time of the crime.

In 1995, Eric was sentenced to death for the brutal murders. His final appeal was denied in May 2009. As of November 9, 2009, Eric was scheduled for execution by lethal injection.

Kim and Matt were 9 years old and 3 years old, respectively, the night their parents were shot to death by their uncle Eric. Kim says she wasn't aware of her aunt's struggles with Eric until she and her kids moved in. "There was always kind of a tension there, but not until about two weeks before all this happened did I even realize that something was wrong," she says. "It was never like that before. We were always at their house playing."

Watch Kim and Matt talk about their parents.

Matt says he was too young to remember much from that night, but Kim says she remembers every detail. "I remember waking up, and Eric was actually outside my bedroom door and standing over Debbie's body saying: 'Debbie, please don't die. Please don't die.'"

Kim says she waited for Eric to leave and then set out to find her little brother. "I went through the house looking for him," she says. "On the way to my parents' bedroom, I had to step over Debbie's body and then into my parents' room. My dad was on the floor, and there was Matt in our parents' bed hiding under the covers, so I got my brother and we went back to our room."

Kim says she found Eric's 7-year-old son on the way to her room. The three children huddled on a top bunk until police found them. "They covered my brother's eyes and my cousin Seth's eyes and they told me to cover my eyes," she says. "Thankfully, I did, because it turns out on my front porch was where my mom was at, and I'm really glad that I don't have to live with that picture in my head."

Debbie's niece Tracy was also living with the family at the time of the murders. Then 19, Tracy says she was sleeping on the couch when Eric broke into the house. "Gunfire was coming from the bedroom," she says. "The last thing I know is Natalie's running over to the couch telling me to get up. I couldn't get up off the couch. I was in shock. She said, 'You have to get up.'"

Tracy says she didn't want to leave the house without Natalie. As they heard Eric coming closer, Tracy says Natalie pushed her out the door. "She was protecting me from him because she said: 'There he is. Go, get help,'" she says. "Natalie took the bullet that was meant for me. Natalie saved my life and gave hers up."

Though her life was spared, Tracy says a part of her died that night. "I think about Tony and Natalie, Debbie and that night every day."

In an effort to start healing, Tracy says she recently wrote Eric a letter. "I forgave Eric Wrinkles for killing my family," she says. "It was time to start healing, and that's where I wanted to start from. ... I don't want him to be out of prison, but I don't want him on death row." Speaking via satellite from the Indiana State Prison, Eric addresses his family for what could be the last time.

Eric says he never intended to kill anyone that night. He says he was high on meth and on his way to a friend's house out of town. Eric says he wore camouflage because he planned to go hunting and fishing and only stopped by to the house to see his children. "I didn't think I would ever see them again," he says. "It wasn't to kill anybody."

Some family members feel Eric uses his drug abuse as an excuse for the murders. Eric says he understands their point. "I take full responsibility for what I did," he says. "But [Natalie and I] never had problems until the drugs. Anyone that's done methamphetamine, it changes you—and not in a good way."

When asked whether he deserves the death penalty, Eric says he doesn't think his opinion matters. Still, he says even the 14 years he's spent in prison could never make up for what he did. "You can't put a price on human life," he says. Eric says he hopes to provide Kim, Matt, Tracy and his two children with some closure before execution day. He recently sent Kim and Matt an apology. "I owe you both a great debt—a great debt that I can never repay," he writes. "I'm truly sorry about what I did and how I affect both of you. I still hold a lot of love in my heart for you, Kim and Matt, and I pray that this letter eases your pain, at least a little, and that you can move on with your lives and be happy, healthy and at peace with things for the rest of what I hope will be long lives."

Watch Kim read Eric's letter

Kim says she's not sure she can trust Eric's apology—but seeing him die won't bring her any resolution. "I forgave him a long time ago," Kim says. "I don't want to carry that hate with me for the rest of my life."

Matt agrees. "I just think he should sit in jail for the rest of his life. Taking him is not going to bring my parents back." Mary, Natalie's mother, says she didn't raise Kim and Matt to hate Eric. "It's because of my faith. Because when you give thanks to God, God carries [you]. And He gave us peace," she says. "[Natalie's] in heaven, so I have a lot to be thankful for." Mary says she doesn't believe Eric's story, but she still forgives him. "I pray for you that you ask God for forgiveness, because that's where it's all at. And I ask everybody to write the governor to stop the death penalty because we're not here to judge. You deserve to be in jail, but we don't want you to die."

"I think that's very big of Mary," Eric says.

Not everyone in the family can forgive. Debbie and Tony's mother, Mae, raised Debbie and Eric's children after the murders. "Eric was abusive to her from the time they married," she says. "I hate him for what he did. He terrorized my family."

Mae doesn't believe Eric deserves to live. "He has been tried by 12 jurors. He was sentenced to death row, and that's where he should go. He should die," she says. "He killed three beautiful people and left four children orphaned." "I have gotten over this anger until this came up again," she says. "I don't have [any] sympathy for you, Eric. You've never said to me that you were sorry. Never."

After the show's audience left, Tracy, Kim and Matt have one last chance to talk to Eric. See what they had to say

Convicted killer Wrinkles lashes out in letter to prosecutor

By Seth Grundhoefer - Evansville Courier and Press

December 4, 2009

Until a few days ago, it had been more than 13 years since Vanderburgh County Prosecutor Stan Levco received a letter from Indiana death row inmate Matthew Eric Wrinkles. Wrinkles, who was convicted for the 1994 slayings of his wife, brother-in-law and sister-in-law, is awaiting execution before dawn Friday before at the Indiana State Prison in Michigan City.

So, when Levco found a letter addressed from Wrinkles in the mail, he was surprised — by both its arrival and the content of the note. It was only the second time since Wrinkles’ verdict was read in a circuit courtroom in 1995, that he had contacted the prosecutor. “The tone is a lot different in the other letter,” he said.

Levco recalls Wrinkles’ first letter as almost “friendly.” He even apologized for telling Levco to “get (expletive)” after his sentencing. But he didn’t share that tone in his most recent correspondence, which he also mailed to the Courier & Press. In the most recent letter, Wrinkles’ writes that Levco “orchestrated” and then manipulated testimonies during the trial.

He also questions the prosecutions decision to pursue the death penalty after he offered to plea guilty to his crimes, adding that he’s conviction was simply another “ ‘w’ in the win column” for the prosecutors.

But 14 years after the verdict was read, Levco has no doubts or regrets about his decision to seek the death penalty. Why exactly? The answer comes in reviewing the initial wishes of the victims’ family, Levco said. Before the trial, Levco said only one of the victims’ family member was against the death penalty, which left nearly eight survivors and family members in favor of putting Wrinkles to death.

And then there was the nature of the crime to consider, he added. “My inclination was to file (for the death penalty). Their input just solidified things for me,” Levco said. “I thought for a triple murder and the way that he killed those people ... I thought he deserved it.”

On the night of execution, Levco will be in Indianapolis with assistant attorneys general, awaiting either a possible call for a last-minute grant of clemency from Gov. Mitch Daniels or the verification of Wrinkles’ death. Wrinkles has declined a request for an interview.

Murders leave only memories; Wrinkles ended some lives, altered others

By Seth Grundhoefer - Evansville Courier and Press

December 6, 2009

Watching the Fourth of July fireworks on the Evansville Riverfront was a tradition for the family of Mark "Tony" and Natalie Fulkerson. Their daughter, Kim Dillman, recalled recently the family of four would spend much of the holiday there. She, her younger brother and her parents would sit on the Riverfront with a bucket of fried chicken in their laps. With their greasy fingers, they would point out a patchwork of bright colors illuminating the night sky.

"We'd get down there at, like, 2 in the afternoon, and we'd be there all day. We'd sit there, and we'd play, and we'd eat ice cream," Dillman said. "It was just great." But that tradition ended in July 1994, the last time the family celebrated a holiday together.

Less than three weeks later, Matthew Eric Wrinkles broke into the Fulkerson home. Dressed and painted in camouflage and armed with a .357 Magnum revolver, Wrinkles shot and killed the couple along with his estranged wife, Debra Jean Wrinkles, 31, who was Tony Fulkerson's sister. Dillman was 9 at the time of the shootings, and her brother, Matthew, was 4. Her mother was 26 and her father was 28 at the time of their deaths.

Wrinkles is scheduled to be executed before dawn on Friday at the Indiana State Prison in Michigan City.

For the last 15 years, the survivors and victims' family and friends have attempted to find solace in lasting memories, old photographs or character-defining anecdotes. "We started living that day," said Mary Winnecke, mother of victim Natalie Fulkerson. Winnecke cared for Kim and Matthew after the murders. "I mean, we had our pictures up. (Matthew and Kim) had their pictures up. We had our Christmas ornaments up, and they had theirs. We just went ahead and lived our days, even though everything was a challenge."

Just a few short years after the death of his parents, a young Matthew Fulkerson carried the crucifix that was displayed during the funeral on his father's coffin into his kindergarten class. Each student had one item from or about their parents to show in front of the class. "He went in front of the class, and he said, 'My name is Matthew, and my mommy and daddy were murdered,'" Winnecke recounted. He then told the story about the night that changed his life. "(The teacher) said, 'I couldn't hardly handle it, but Matthew did such a beautiful job,'" Winnecke said.

Maybe it was the perseverance of his father or the strong will of his mother, but nonetheless, there was a piece of his parents in Matthew, Winnecke said.

She describes her daughter and son-in-law as an ordinary couple, people who worked hard to love and provide for their children. "She was opinionated with her ideas, and yet, he had his ideas. And they just kind of blended together, you might say. Where one led off, the other picked up," she said.

Natalie Fulkerson was a Mater Dei graduate, and she worked as a teller at the North Side Citizens National Bank from February 1990 until she resigned in October 1993. After that, she worked as a secretary at the electrical workers union at 2411 N. Lafayette Ave.

Though Dillman said people tell her that she resembles her mother both in appearance and character, she never knew her parents as anything other than "Mom" or "Dad." And she couldn't share the milestones of graduating from high school, having her first child or getting married with either of her parents. "When I was pregnant, I couldn't call my mom on the phone and ask, 'Is this normal?'" she said.

After the death of her grandfather, she visited the attic of the grandparents. Over the years, they had accumulated clothes, scrapbooks and other items from Natalie and Tony Fulkerson. Dillman flipped through a scrapbook the couple kept in high school. It contained old love notes from one parent to the other. "There was one little coupon in there that said, 'One free kiss, just for you,'" she said. "It was just full of these cute little sentiments for each other."

At 16, Natalie Fulkerson became pregnant with Dillman. In school, rumors of the teen's pregnancy began circulating throughout the hallways. It was true, but Fulkerson wasn't the type to put up with being the subject of rumors or to duck out on her future obligation as a mother. "One day in class, Natalie stood up and said, 'Yes, it's true. I'm pregnant. Now, you all know, and we can get on with our lives,'" Winnecke said.

And after having her daughter, she "never tried to hide her," and it wasn't uncommon for the young mother to bring the young infant to classes or even after-school activities, Winnecke added. "She was a great mom," Winnecke said. "I thought, if I can be half the mom that she was, then I know that I'm a good mother."

Tony Fulkerson was employed at Smith & Butterfield Office Products and was a 1984 graduate of Central High School. He married Natalie the day she turned 18. "You can see they look pretty happy there," said Mae McIntire, as she pointed to a picture of the couple that was taken in 1990, four years before their deaths.

The 80-year-old Evansville woman has pictures of all the kids she's raised, including pictures of her daughter, Debra Wrinkles, and son, Tony Fulkerson. She adopted Tony Fulkerson when he was 2 months old, and she became the legal guardian of Debra Wrinkles when she was 4 years old.

As a mother, she respected her children, and "didn't bother with their lives much." And as they grew older, they visited for holiday dinners, where McIntire would cook favorite dishes for them. "(Tony)'d always say, 'Well, if you're going to have barbecue, I'll come,'" she said. "And it's funny, but that's one of the memories that I still have."

She also remembers Tony Fulkerson as a "handy" person who could make or work with anything. While working at a construction site, he retrieved scrap wood and built his family kitchen cabinets. "Before everything happened, he had that house looking really good," she added.

Debra Wrinkles was a 1980 graduate of Central High School, and later managed the bread store at Colonial Bakery. After work, McIntire said it was typical of her to give excess bread to the Evansville Rescue Mission. "She was a sweet person, and I don't think you can find one person in this town that didn't like Debbie," she said.

Her childhood friend, Ramona Burch, agrees with McIntire. The two were friends since they were 10 years old. "She was kind-hearted, soft-spoken, and she always had a smile on her face," she said.

Burch still carries a picture of Wrinkles in her wallet. It's her high school senior photo, and she's wearing a pink shirt and sporting a hairstyle reminiscent of Farrah Fawcett at the time. It's her favorite picture of her friend, and Burch said it's the most accurate of Debra Wrinkles. "What you see in that picture ... that's the way she was all the time," she said.

Death Row Offender Wrinkles Waives Clemency

By Indiana Department of Correction.

Michigan City, Indiana

November 16, 2009

The Indiana Parole Board received communication from Matthew Eric Wrinkles’ (DOC #952132) attorneys today. Wrinkles was provided notice of his legal rights to clemency on Monday, November 9th, 2009 by the Indiana Parole Board. Wrinkles was briefed, as well, by his attorneys via telephone and letter as to his rights to clemency , and subsequently, today, authorized his attorneys to waive the clemency process.

The Indiana Parole Board received both written and telephonic communication today, November 16, 2009, from the attorneys representing Matthew Eric Wrinkles advising he had waived his right to clemency.

The waiving of the right to clemency terminates the statutory responsibility of the Indiana Parole Board. All previously scheduled hearings, interviews, and proceedings are hereby officially canceled.

Juror reflects on Wrinkles' trial

By Nicole DiDonato - WFIE.com

Dec 10, 2009

EVANSVILLE, IN (WFIE) - Linda Lender is an employee at 14WFIE. She was a juror who helped convict and sentence Eric Wrinkles to his death sentence. She had been working here just a short time before being chosen to undergo what she calls a "very hard week". In fact, she says it was a week she will never forget.

For those seven days in May of 1995, Lender says she saw and heard things you could only expect from a movie. Pictures from the scene and testimony from loved ones and Eric Wrinkles, she says, were difficult to sit through.

When it came time to discuss Wrinkles' punishment, Lender says it took hours. No punishment, she felt, could bring the victims back.

But again, Lender admits it was those pictures that helped the jurors chose the death penalty. "I think we were all very confident in what we decided," Lender said. "And to this day, I have never second guessed the decision that we made. I think under the circumstances, it was really the only decision to make."

Lender says this is all very surreal for her. She feels Wrinkles' execution will not bring closure, but rather just end another chapter.

Those opposed to the death penalty will hold a prayer vigil tonight at 8:00 p.m. at Holy Redeemer Church on West Mill Road.

WFIE Evansville news reporter Stephanie Silvey investigates death row and Matthew Eric Wrinkles

14WFIE.com

Dead men walking, that's how the men on death row have come to be known, but in Indiana that's simply no longer the case. The last man to die for his crimes from southwestern Indiana was Frank Quarles in 1946.

In the last 20 years, 11 men have been sent to death row from here, but none have been executed. Exhaustive appeals and numerous overturned convictions have now dwindled that number to four.

Eric Wrinkles is among those remaining, fighting for his life on death row. Back in 1994, Wrinkles cut the phone lines and kicked in the door of his brother-in-law's home. Wearing camouflage and face paint, he gunned down Tony and Natalie Fulkerson as they tried to escape with the children in the home. Wrinkles also shot and killed his wife, Debbie as she tried to defend herself.

It was the couple's own daughter who ran to a neighbor and called 911. In the call, the child said, "My dad shot my uncle, Tony and Natalie, and then my mom tried to shoot my dad. He, he killed..."

Stefanie Silvey went within the walls of Westville's Maximum Control Facility, the current home of Indiana's Death Row, and current home to Eric Wrinkles. In his first television interview, Wrinkles talked with Stefanie about his hopes for being the next death row prisoner to have his death sentence overturned.

Wrinkles was led into the interview booth onacclimateith armed guards. He still struggles to acclaimate himself to life on death row. He commented, "Anything, seeing the sky, you know I mean walking, being able to walk through grass, you know seeing my kids." Wrinkles world comes with a florescent light instead of sun. He has Plexiglas and steel to replace grass and trees.

Eric Wrinkles said, "I tell a lot of people it's similar to having the run of your house, and then the next day being confined to your bathroom." Outsiders can interact with him only by telephone. That became his fate when he murdered three people in 1994.

Wrinkles commented, "I still have nightmares to this day about it. You know, I guess that's a small price to pay for that." He prays one day he might leave this place. With sentences being overturned for so many other fellow inmates, Wrinkles has hope.

While Eric Wrinkles prays for his life on Indiana's Death Row, Reverend Joseph Cunningham pleads for compassion. Like Wrinkles, Reverend Cunningham is from Evansville. Both men moved away, but now live within minutes of each other, but they share more than proximity. Reverend Joseph Cunningham was one of 12 jurors who decided Eric Wrinkles should die for his crimes. Cunningham said, "I never in my wildest dreams or thoughts believed that I would be on that jury." Cunningham commented, "One can't comprehend the horror of having to see the weapon that has taken lives, to smell the blood on the sheets, to see the pictures that nobody has to see."

Wrinkles said, "I think if it was presented to me as it was presented, I might have done the same thing they did." Cunningham explained, "What I kept picturing in my mind's eye was the picture of Natalie's face, with the powder burns. Looking at that picture, this helpless woman, running for her life, to know that she was shot so close that, that was so clearly visible on her face was what brought me to the other side."

Surprisingly, Eric Wrinkles sympathizes. When Stefanie Silvey asked, "How did you feel about the death penalty before?" Wrinkles responded, "Oh, I believed in it, big supporter, big supporter. Take em' all out back and shoot em'. And I'm not against it now because I'm here. I see how people are put here, that's what I'm against and I've seen some of the guys back here I'm with the worst of the worst, I don't think so. That's ridiculous."

Wrinkles accepts responsibility for his crimes, but blames them on his addiction to methamphetamine. Wrinkles explained, "You have no cognitive reasoning ability. None. You can not, it's, it's amazing. You don't realize it either at the time. You can focus on one thing, it's an obsession and you can not reason, your reasoning ability is gone, none."

Reverend Cunningham said, "Even with a delusional mind, there were too many aspects that didn't allow us to excuse the behavior." Stefanie told Wrinkles, "But you have to know now, it looked bad coming in with camouflage and..."

Wrinkles replied, "Oh yeah, it's nuts. I mean, it's, it's nuts." He says he's a different person now. "I want to call it instant Christian. You throw in two parts prison, and one part Bible and shake it and you get an instant Christian, you know. I went through a lot for seven or eight years. I didn't have anything to do with it. It was a slow maturation process for me, before I came to that, that helps."

Reverend Cunningham says if the jury's decision was overturned and Wrinkles received life without parole, he'd be fine with that. Reverend Cunningham said, "I pray to God that we did that which was just. There is not a day that goes by that I don't think about it."

And there's not a day that Eric Wrinkles doesn't think about the wrong turn he took 10 years ago, that changed so many lives forever. Westville's Maximum Control Facility is a temporary housing unit for the inmates while death row in Michigan City is being renovated. Despite the fact that the project is costing taxpayers millions, more inmates are being removed from death row, then staying.

Wrinkles and other inmates are angry about the conditions there. They say many of the rights they previously had like spending time together, the ability to move about more freely, and larger cells, were unfairly taken away in the move. Eric Wrinkles actions affected far more people than himself, but even his victim's relatives disagree whether he should die for his crimes.

Mae Mcintire, Debbie Wrinkles and Tony Fulkerson's mother, commented, "I don't know why Eric thinks he has the right to live when he killed three people and made four children orphans." Mary Winnecke, Natalie Fulkerson's mother, said, "There is no closure as long as the death penalty is hanging over our heads."

Matthew Eric Wrinkles

ProDeathPenalty.com

Matthew Eric Wrinkles was sentenced to death for the murders of his estranged wife and his wife's brother and sister-in-law.

In June 1994, Wrinkles' wife Debbie and the couple's two children, Lindsay and Seth, moved into the Evansville home of Mark and Natalie Fulkerson, Debbie's brother and sister-in-law. Wrinkles filed for divorce on June 30, 1994, and Debbie obtained a protective order that same day prohibiting Wrinkles from having any contact with her and the children. At a provisional divorce hearing on July 20, 1994, Debbie agreed to a rescission of the protective order, and Wrinkles and Debbie agreed that Debbie would retain custody of the children but Wrinkles would have reasonable visitation rights. Wrinkles and Debbie agreed to meet later that day at a local fast food restaurant so that Wrinkles could see his children, whom he had not seen in over a month.

However, Debbie and the children never showed up. Wrinkles called his divorce attorney, who told him that although nothing could be done that night because the courts were closed, he would take care of it tomorrow. Wrinkles, still frustrated, called the Fulkerson home to speak with Debbie, but she was not there. When Debbie returned later that night, she called Wrinkles to set up a meeting for the next day, but there was no answer.

Around 2 a.m. on July 21, 1994, Wrinkles parked his truck a block away from the Fulkerson home, put on camouflage clothing, painted his face, and armed himself with a .357 magnum revolver and a knife. He then climbed over a fence into the Fulkersons' backyard, cut the telephone wires, and kicked in the back door.

Wrinkles first approached Mark in his bedroom, shooting him four times in the presence of his three-year-old son. Awakened by the gunshots, Debbie entered the bedroom hallway and saw that Wrinkles had shot her brother. Debbie, who had already grabbed her gun for protection, shot Wrinkles in the arm and then fell to the floor. Lindsay, also awakened by the gunshots, entered the bedroom hallway and, upon seeing her father about to shoot her mother, pleaded, "Dad, please don't shoot Mom." Wrinkles responded "shut up" and then shot Debbie in the chest. In the meantime, the sister-in-law Natalie ran out the front door. Wrinkles followed Natalie onto the front porch and shot her in the face at close range. Subsequent autopsies revealed that Mark, Debbie, and Natalie each died from gunshot wounds.

Police apprehended Wrinkles later that morning in Warrick County. The trial was held on May 15-19, 1995. The defense theory at trial was that because of a combination of Debbie depriving Wrinkles of access to his children and his methamphetamine addiction, Wrinkles broke into the Fulkerson home to get his children and shot the victims only after Debbie shot him and the other victims pointed guns at him. The jury found him guilty as charged. The penalty phase was held on May 20, 1995, and the jury returned a recommendation of death. A month later, the trial court, finding that the multiple murder aggravator outweighed the mitigators, imposed the death penalty.

Wrinkles v. State, 690 N.E.2d 1156 (Ind. 1997) (Direct Appeal).

Defendant was convicted in the Circuit Court, Vanderburgh County, Richard L. Young, J., of three counts of murder and was sentenced to death. Defendant appealed. The Supreme Court, Sullivan, J., held that: (1) any error in admission of hearsay testimony about a telephone call that occurred a few days before one victim's murder was harmless; (2) the state established an adequate chain of custody for ballistics and blood test evidence; (3) the evidence did not support the defendant's requested mistake of fact or accident instruction; (4) the jury was not misled by the reckless homicide instruction; and (5) the death sentence was appropriate. Affirmed.

SULLIVAN, Justice.

Defendant, Matthew Eric Wrinkles, appeals his convictions and death sentence for the murders of Debbie Wrinkles, Mark Anthony Fulkerson, and Natalie Fulkerson. We review and affirm the murder convictions and death sentence.

Background

On June 30, 1994, Matthew Eric Wrinkles (defendant) filed for divorce from Debbie Wrinkles. Prior to the institution of divorce proceedings, Debbie and the couple's two children, Lindsey and Seth, had moved into the home of Mark Fulkerson, and his wife, Natalie; Mark was Debbie's brother.

At a provisional divorce hearing on July 20, 1994, defendant and Debbie agreed that Debbie would retain custody of Lindsey and Seth, and that defendant would have reasonable visitation rights. Defendant and Debbie agreed to meet later that day at a local fast-food restaurant so defendant could see his children. Because Debbie was tired, she and the children did not show up at the arranged meeting place and time. Later that night, defendant tried to reach Debbie at the Fulkersons' home, but was unsuccessful. Debbie likewise tried to arrange another meeting with defendant, but to no avail.

In the early morning of July 21, 1994, defendant climbed over a fence into the Fulkersons' back yard, cut the phone lines, unlawfully entered their home, and shot and killed Debbie, Mark, and Natalie.

Defendant was charged with three counts of Murder, the knowing killings of Debbie, Mark and Natalie.FN1 The State also sought the death penalty, alleging as an aggravating circumstance that defendant had committed another murder.FN2 A jury found defendant guilty on all counts and recommended that the death penalty be imposed. The trial court, following the jury's recommendation, sentenced defendant to death.

FN1. Ind.Code § 35-42-1-1(1) (1993). Unless otherwise indicated, references to Ind.Code § 35-42-1-1 refer to the version published in the 1993 Edition of the Indiana Code, the murder statute in effect at the time the crimes at issue were committed. FN2. Ind.Code § 35-50-2-9(b)(8) (Supp.1994). Unless otherwise indicated, references to Ind.Code § 35-50-2-9 refer to the version published in the 1994 Supplement to the Indiana Code, the death penalty statute in effect at the time the crimes at issue were committed. We will cite additional facts as necessary.

Issues on Appeal

1. Evidentiary Claims

Defendant challenges the trial court's admission of evidence in two respects. We review the admission of evidence for an abuse of discretion by the trial court. Ross v. State, 676 N.E.2d 339, 345 (Ind.1996); Kindred v. State, 524 N.E.2d 279, 298 (Ind.1988). We find error reversible only if admitting the evidence affected a substantial right of the party. Ind.Trial Rule 61; Fleener v. State, 656 N.E.2d 1140, 1141-42 (Ind.1995); Hardin v. State, 611 N.E.2d 123, 131-32 (Ind.1993).

Hearsay. Defendant argues that the trial court erroneously admitted testimony from Lisa Shadrick regarding a telephone call Shadrick had received from Debbie Wrinkles a few days prior to Debbie's murder. Shadrick testified, over defendant's objection, as follows (prosecutor questioning): Q: An [sic] in that conversation, did Debbie Wrinkles tell you ... BY MR. DANKS [defense counsel]: Show my objection, Your Honor. That's hearsay. BY MISS LLOYD [prosecutor]: Your Honor, if I could finish the question at least before the answer. BY THE COURT: All right. Q .... about her then existing state of mind? BY MISS LLOYD: Which is an exception to the hearsay rule under the Indiana Rules of Evidence. In addition, it is where the declarant's unavailability is not in issue. If she answers yes that she mentioned how she was feeling basically at that time, that would be her state of mind present. State of mind and an exception to the hearsay rule. BY THE COURT: You need some foundation as to how she knew who she was talking to. BY MISS LLOYD: Okay. Q: When you received the phone call, did you recognize the voice? A. Yes. Q. Whose voice was it? A. Debbie Wrinkles. Q. How many times had you talked to Debbie before that? A. Lots. Q. And you knew that was Debbie's voice? A. Yes[.] BY THE COURT: Any further objection? BY MR. DANKS: Yes, Your Honor. It still goes to the truth of the matter asserted. And it's still hearsay. I don't believe the state of mind of Debbie Wrinkles is at issue. BY THE COURT: Objection overruled. Go ahead. Q. What did Debbie tell you about how she felt at that time? A. She said that she was a nervous wreck, and that she was on medication. And every time she heard a noise she would jump ‘cause she was scared. And that she had to sleep with a gun underneath her pillow now. And, uh, she was just scared. Q. Did she say of what? A. Of Eric [defendant]. (R. at 2517-19.)

Defendant contends that Shadrick's testimony is inadmissible hearsay not falling within the present state of mind exception, because Debbie Wrinkles' state of mind at the time of her murder was not an issue at trial. He further argues that Shadrick's testimony was not relevant to any issue introduced at trial and that, regardless of its relevance, the prejudicial impact of the testimony far outweighed any probative value.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. Ind.Evidence Rule 801(c). Hearsay is generally inadmissible. Evid.R. 802. However, a statement of a declarant's then existing state of mind is not excluded by the hearsay rule. Evid.R. 803(3). The State claims that Shadrick's testimony, to the extent it is hearsay, falls within this exception, and that defendant placed Debbie Wrinkles' state of mind at issue by claiming in his opening statement that she was the initial aggressor after he entered the Fulkersons' home. Defendant testified that after he entered the house, he saw Debbie in the hallway; she said to him, “Die, you bastard, die,” and then shot at him. The State argues that Shadrick's testimony about Debbie's telephone call tends to show that Debbie feared for her life and that it was highly unlikely that she attacked defendant first. See Dunaway v. State, 440 N.E.2d 682, 686 (Ind.1982) (“The [hearsay] statements indicate a fearful state of mind which would circumstantially explain her later action of attempting to hit defendant.”).

Shadrick's testimony qualifies as hearsay to the extent it was offered to prove that Debbie was fearful of defendant, and we are unable to conclude that her state of mind was relevant to an issue in this case. Cf. Angleton v. State, 686 N.E.2d 803, 809 (Ind.1997); Lock v. State, 567 N.E.2d 1155, 1159 (Ind.1991). However, any error resulting from the trial court's admission of Lisa Shadrick's testimony is harmless, because her testimony was merely cumulative of other evidence demonstrating the stormy and often violent nature of the relationship between defendant and Debbie Wrinkles. FN3 We find that the admission of Shadrick's testimony did not prejudice defendant's substantial rights.

FN3. Debbie had moved out of the house she shared with defendant; Debbie and defendant were getting a divorce and she had sought a protective order against him; defendant argued with Debbie and fired a shot from a pistol into the floor when she left with their children after she and defendant had argued; and Debbie made a voluntary statement to the police concerning the marital and financial stress she and defendant were under prior to their divorce.

Chain of Custody. Defendant's other argument regarding erroneously admitted evidence is that the State failed to establish an adequate chain of custody for the ballistic and serological evidence it introduced at trial. The State introduced several shell casings and bullets retrieved from the murder scene and victims and it introduced blood evidence linking defendant to the crime scene and establishing his movements through the house on the night of the murders.

“The State's burden in an attack on the validity of a chain of custody is to show the continuous whereabouts of the evidence. The mere possibility the evidence could have been tampered with or that an alteration or substitution could have been accomplished does not make the evidence inadmissible. The State is not required to exclude every possibility of tampering. However, when the evidence is fungible, ... the importance of a proper chain of custody is enhanced. The proper showing of a chain of custody must give reasonable assurance that the property passed through the hands of the parties in an undisturbed condition.” Gorman v. State, 463 N.E.2d 254, 256 (Ind.1984) (citations omitted). See also Kennedy v. State, 578 N.E.2d 633, 639 (Ind.1991). Non-fungible evidence, such as the ballistics samples, requires a less stringent foundation, because any tampering with the evidence is more likely to be noticed due to the unique character of the evidence. Hough v. State, 560 N.E.2d 511, 517 (Ind.1990) (citing Dier v. State, 442 N.E.2d 1043, 1046 (Ind.1982)). The proponent of the evidence does not have to establish a perfect chain of custody; any gaps in the chain of custody go to the weight of the evidence, not its admissibility. Bell v. State, 610 N.E.2d 229, 233 (Ind.1993); Kennedy, 578 N.E.2d at 639.

We first examine the chain of custody the State established for the ballistics evidence admitted over defendant's objection.FN4 Officer Taylor, the crime scene technician, collected the shell casings, sealed them in packages, and initialed the packages. Officer Ford observed Dr. Heidingsfelder, the pathologist, remove the shell casings from the bodies of Debbie Wrinkles and Mark Fulkerson during their autopsies. Officer Ford placed those casings in separate containers and marked them with his initials. To perform ballistics testings on the samples, Sergeant Wessel removed them from the sealed containers; he resealed the containers after testing. Sergeant Wessel testified at trial that he could recognize and identify the exhibits because his initials were on them.

FN4. Defendant objected to admission of the following exhibits: shell casing found in hallway; bullet found in Fulkersons' bedroom; mutilated projectile found on front porch; shell casings found on the front porch and in the hallway; projectile imbedded in nightstand in Fulkersons' bedroom; projectiles imbedded in the Fulkersons' bed; and bullets removed from the bodies of Debbie Wrinkles and Mark Fulkerson.

Defendant objected to the introduction of the shell casings as follows: Well, this officer testified those particular items he looked at and tested. I haven't heard anything else about what he did after the except put them in the bags. I don't know what happened to those bags after that was done. ... Again, I have no particular objection except for foundational reasons. And my understanding is that whomever [sic] collected these items and put them in bags then I don't know how they got from Evansville into the Indiana State Police Post, uh, and then he examined the items, they were sealed in the bag, and I don't know how they got from there to here, and then from there to Court. It's just the chain, Your Honor. (R. at 2438-39.)

By objecting in this manner, defendant did not rebut the presumption of regularity in the handling of the exhibits, nor did he do more than raise a mere possibility of tampering. Sergeant Wessel readily identified the exhibits at trial, which establishes an adequate chain of custody for nonfungible ballistics evidence. Defendant did point to possible gaps in the chain of custody, but such gaps go to the weight to be accorded the evidence, not to its admissibility. Kennedy, 578 N.E.2d at 639. As such, we cannot find that the trial court abused its discretion in admitting the ballistics evidence over defendant's objection.

Now we turn to the chain of custody established for the serological evidence. As stated above, fungible evidence, such as blood samples, requires a more stringent foundation. The State bears an enhanced burden of showing the continuous whereabouts of the evidence. Hughett v. State, 557 N.E.2d 1015, 1019 (Ind.1990).

Defendant objected separately on foundational grounds to the introduction of several exhibits subjected to serological testing.FN5 The State offered the following to establish its continuous chain of custody for the serological evidence: Officer Taylor collected the serological evidence at the crime scene, placed all exhibits in packages, and sealed and initialed each package. Officer Ford collected blood scrapings from Debbie Wrinkles' back and legs; he placed the back and leg scrapings in separate pill boxes, which he gave to Officer Taylor, who sealed and initialed them. In addition, Officer Ford observed Dr. Heidingsfelder draw blood samples from each victim at their autopsies. Officer Ford then sealed one blood sample, marked it, and placed it in refrigeration at police headquarters before sending it off for testing; he marked the other two samples. Officer Ford also witnessed Officer VanCleave draw blood from defendant; the blood was stored in an Indiana State Police suspect evidence collection kit. The forensic serologist received all samples in sealed packages, which he resealed after testing.

FN5. Defendant objected to the following exhibits: one bedsheet used as a curtain and one fitted bedsheet from the Fulkersons' bedroom; blood samples taken from the storm door, living room carpet, hall carpet, and bedroom carpet; blood drawn from Debbie Wrinkles and Mark and Natalie Fulkerson during their autopsies; blood sample taken from defendant and kept in an Indiana State Police suspect evidence kit; and samples of dried blood scraped from the back and legs of Debbie Wrinkles.

Defendant's contention appears to be that the State should account second by second for each piece of serological evidence. He points to the lack of testimony regarding where the exhibits were taken after being marked by Officer Ford but before being sent to the forensic serologist for testing. Here, the State accounted for the evidence at each stage from its acquisition, to its testing, and to its introduction at trial. This is an adequate foundation establishing a continuous chain of custody, even for fungible evidence. Defendant again did no more than raise the mere possibility of tampering, and his objections as to gaps in the chain of custody go only to the weight of the evidence, which is to be evaluated by the jury. Once more, we cannot find that the trial court abused its discretion in admitting over defendant's objection the serological evidence.

2. Instruction Claims

Defendant next argues that the trial court erroneously refused his tendered instructions on the defenses of accident and mistake of fact and, at the guilt phase of the trial, erroneously instructed the jury on two matters over his objections. The manner of instructing the jury lies within the sound discretion of the trial court, Tanner v. State, 471 N.E.2d 665, 667 (Ind.1984), and we will find error reversible only if the instructions, taken as a whole, incorrectly state the law or otherwise mislead the jury. Reaves v. State, 586 N.E.2d 847, 855 (Ind.1992). When reviewing a trial court's refusal of tendered instructions, we will find error only if: (1) the tendered instruction correctly states the law; (2) evidence in the record supports giving the instruction; and (3) no other instruction adequately covers the substance of the tendered instruction. Griffin v. State, 644 N.E.2d 561, 562 (Ind.1994).

Accident. We first address defendant's tendered instruction on the defense of accident: The defense of accident has been raised as an issue in this case. In general, prohibited conduct may be excused when it is a result of accident.

This defense contains three elements: 1. The conduct must have been unintentional, or without unlawful intent or evil design on the part of the accused; 2. The act resulting in injury must not have been an unlawful act; 3. The act must not have been done recklessly, carelessly or in wanton disregard of the consequences. The State has the burden of disproving this defense beyond a reasonable doubt. (R. at 134-135.)

Defendant argues that this tendered instruction correctly states the law; that no other instruction given by the trial court covered the defense of accident; and that evidence in the record exists to support giving the instruction. The State does not dispute defendant's first two contentions; therefore, we address only the issue of whether evidence in the record supports giving the instruction. Defendant refers us to his own testimony at trial that he accidentally killed Natalie Fulkerson. Defendant testified that while running through the Fulkersons' home, he ran into Natalie in the living room and his gun automatically discharged, killing her.

The third element of the defense of accident, as set forth in defendant's requested instruction, requires that the defendant not have been acting recklessly, carelessly, or in wanton disregard of the consequences of his actions. Here defendant testified that he was carrying a loaded firearm while running through the Fulkersons' home. Defendant's testimony does not support a conclusion that he was acting in a manner sufficient to establish the defense of accident. Furthermore, forensic evidence disputed defendant's claim that he shot Natalie from inside the house. For these reasons, we cannot say that the trial court erred in refusing defendant's tendered instruction on the defense of accident.

Mistake of Fact.

We next address defendant's tendered instruction on the defense of mistake of fact: The defense of mistake of fact is defined by law as follows: It is a defense that the person who engaged in the prohibited conduct was reasonable [sic] mistaken about a matter of fact, if the mistake negates the culpability required for the commission of the offense. The reasonable mistake about a fact must have prevented the Defendant from acting intentionally, knowingly, or recklessly as those terms are defined by law. The State has the burden of disproving this defense beyond a reasonable doubt. (R. at 130-131.)

Defendant argues that this instruction correctly states the law because it is based on Ind.Code § 35-41-3-7 (1993); that no other instruction given by the trial court covered the defense of mistake of fact; and that evidence in the record exists to support giving the instruction. Again, the State does not dispute defendant's first two contentions, so we address only the evidentiary issue. To support the giving of this instruction, defendant relies on his testimony at trial that he unlawfully entered the Fulkersons' home on July 21, 1994, only to take his children, Lindsey and Seth, and that he did not intend to kill anyone that night. He testified that he believed at that time that, due to the missed visitation on July 20, 1994, he would never see his children again. Defendant contends that this mistaken belief negates his intent to kill.

Mistake of fact is a valid defense if three elements are satisfied: (1) the mistake is honest and reasonable; (2) the mistake concerns a matter of fact; and (3) the mistake negates the required culpability. Ind.Code § 35-41-3-7 (1993); Smith v. State, 477 N.E.2d 857, 863 (Ind.1985) (citing Stoner v. State, 442 N.E.2d 983 (Ind.1982)). “[T]he burden is upon the defendant to establish an evidentiary predicate of his mistaken belief of fact which is such that it could create a reasonable doubt in the jury's mind that the accused had acted with the requisite mental state.” Hoskins v. State, 563 N.E.2d 571, 575 (Ind.1990) (citing Stoner, 442 N.E.2d 983). Here, defendant was charged with the “knowing” murders of Debbie Wrinkles and Mark and Natalie Fulkerson. The culpability required was an awareness of the high probability that defendant was killing the victims. Ind.Code § 35-41-2-2 (1993). It is unclear how defendant's belief that he would never see his children again could negate an awareness of the high probability that his actions would result in the deaths of three people.

None of the evidence adduced at trial, other than a portion of defendant's testimony, supported an instruction on the defense of mistake of fact. Defendant testified at trial that he intended to hit Mark Fulkerson when he shot at Mark, and that he knew it was possible that Debbie would die from his shooting her. In a similar context, this Court has held that such a mistaken belief “does not satisfy the requirement that [defendant's] culpability be negated because even if believed, it would not have created in the jury's mind a reasonable doubt that [defendant] was unaware that he pointed his gun at [the intended victim] and pulled the trigger [multiple] times or that he was unaware of the probable consequences that his conduct could have.” Hoskins, 563 N.E.2d at 576.FN6. The defendant in Hoskins was charged with attempted murder; he argued that “the acts of the three victims created in him the mistaken belief that one of the women had a gun and that he was in more danger than he actually was.” Hoskins v. State, 563 N.E.2d 571, 576 (Ind.1990).

We conclude that the trial court could find that there was no evidentiary basis for defendant's tendered instruction on the defense of mistake of fact.

Reckless Homicide Instruction.

Defendant also challenges the court's final instruction number eight: The crime of Reckless Homicide is defined by statute as follows: A person who recklessly kills another human being commits Reckless Homicide, a Class C felony. To convict the Defendant, the State must have proved each of the following elements in each Count: The Defendant 1. recklessly 2. killed 3. Debra Wrinkles in Count I, Natalie Fulkerson in Count II and Mark A Fulkerson in Count III. If the State failed to prove each of these elements beyond a reasonable doubt, you should find the Defendant not guilty. If the State did prove each of these elements beyond a reasonable doubt in each Count, you should find the Defendant guilty of Reckless Homicide, a Class C felony, in that Count. (R. at 148.) Defendant objected to this instruction on the grounds that it misled the jury as to the State's burden of proof.FN7 Defendant argues that, while lawyers would “know what the trial court meant[,] ... the instruction is highly confusing as to when a verdict of guilty of Reckless Homicide could be returned ... [and] the jury could have easily believed that a verdict of guilty of Reckless Homicide could not be returned with reference to the death of [one of the victims] ... since the evidence did not establish the essential elements of that offense as to the other two victims.” Br. of Appellant at 73.

FN7. “And with Instruction number 8, it would be the second, third sentence I guess. It says, to convict the Defendant-it should have said, in each Count-the State must have proved each of the following elements.... And then it says, if the State failed to prove each of these elements beyond a reasonable doubt, you should find the Defendant not guilty- in each Count. And finally, if the State did not prove each of these elements beyond a reasonable doubt you should find the Defendant guilty of Reckless Homicide, a Class C felony, in each Count. That's the record I'd like to make at this time.” (R. at 220-21) (emphasis added).

Whatever the merits of defendant's claim that the jury could have been misled by this instruction, we conclude that the record demonstrates that it was not misled. The trial court's preliminary instructions to the jury clearly delineated the charges against defendant. The language in the Reckless Homicide instruction to which defendant objects also adequately distinguished among the three separate charges.FN8 Furthermore, the jury received separate verdict forms for each count with which defendant was charged to aid in its deliberations. Each verdict form contained four options: The jury could find defendant guilty of Murder, Voluntary Manslaughter, or Reckless Homicide, or not guilty with respect to each victim. These separate verdict forms would have allayed any possible confusion that might have resulted from the court's instruction on Reckless Homicide. Accordingly, we find that the trial court did not abuse its discretion in giving the instruction on Reckless Homicide over defendant's objections.

FN8. “If the State did prove each of these elements beyond a reasonable doubt in each Count, you should find the Defendant guilty of Reckless Homicide, a Class C felony, in that Count.” (R. at 148) (emphasis added).

Prior Inconsistent Statements. Defendant next argues that the trial court's instruction on prior inconsistent statements incorrectly states the law because it informs the jury that it may consider prior inconsistent statements as substantive evidence:

Prior inconsistent statements are defined as statements made by the witness out of Court which differ from his or her testimony during this trial. Prior inconsistent statements may be considered by you for two purposes. You may use them to impeach the capacity for truthfulness of the witness who made the inconsistent statement. You may also consider the out-of-Court statements as evidence in determining the guilt or innocence of the Defendant of the crime charged. (R. at 153.)

Defendant objected to the giving of this instruction as follows: With respect to the Court's Final Instruction number 13 in the guilt phase, this instruction is an incorrect statement of the law in that impeachment evidence may be considered as substantive evidence of guilt only in limited circumstances not set out in the instruction. (R. at 223.)

The given instruction is a verbatim recitation of Indiana Criminal Pattern Jury Instruction 12.19, which was superseded by Evid.R. 801(d) and Modesitt v. State, 578 N.E.2d 649 (Ind.1991). See Cooley v. State, 682 N.E.2d 1277, 1281 (Ind.1997) (discussion of reasons for replacing rule of Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975), with that of Evid.R. 801(d) and Modesitt ). The instruction incorrectly stated the law, and the trial court committed error when it instructed the jury in this manner. Johnston v. State, 230 Ind. 571, 575, 105 N.E.2d 820, 821 (1952) (error to give instruction which incorrectly states the law); Beneks v. State, 208 Ind. 317, 328, 196 N.E. 73, 77 (1935) (same). However, it is not clear to us that defendant's objection was on this basis. Moreover, error in a particular instruction will not justify reversal where, as here, there has been no showing that the defendant's rights were substantially prejudiced. Hensley v. State, 499 N.E.2d 1125, 1127 (Ind.1986). Here, defendant does not set forth any prior inconsistent statement in the record which the jury could have considered improperly as substantive evidence. “[I]t is the responsibility of [defendant] to support his argument on appeal with appropriate citations to legal authorities as well as to appropriate sections of the record.” Marshall v. State, 621 N.E.2d 308, 318 (Ind.1993) (citing Bieghler v. State, 481 N.E.2d 78 (Ind.1985)). See also Ind.Appellate Rule 8.3(A)(7). Without a demonstration by defendant of prejudice in general, and with no citation to any prior inconsistent statement in particular, we consider this error harmless.

Constitutionality of the Death Penalty

Defendant attacks the constitutionality of Indiana's death penalty statute, Ind.Code § 35-50-2-9, on several grounds: (1) the jury impermissibly decides arbitrarily between recommending a sentence of death or life imprisonment without parole for a given defendant; (2) the death penalty is impermissibly disproportionate punishment for “knowing” murders; (3) the entire capital sentencing structure violates due process because it misleads the jury as to its role in the sentencing process; (4) the mitigating circumstance of “no significant history of prior criminal conduct” is unconstitutionally vague; and (5) the sentencing judge impermissibly cannot review meaningfully the jury's sentencing recommendation because the jury is not required to make specific written findings of the aggravating and mitigating circumstances it relied on in reaching its decision.

Lack of Discretion.

From its enactment in 1977 until 1993, the Indiana death penalty statute authorized a death sentence to be imposed when specific criteria in the statute had been satisfied.FN9 In 1993, the statute was amended to authorize either a sentence of death or a sentence of life without parole to be imposed when those criteria have been satisfied. FN10 The 1993 amendment created no additional criteria to be used to determine when death rather than life without parole is appropriate.

FN9. Ind.Code § 35-50-2-9, enacted by 1977 Ind. Acts P.L. 340, § 122; as amended by 1983 Ind. Acts P.L. 336, § 1; as amended by 1986 Ind. Acts P.L. 212, § 1; as amended by 1987 Ind. Acts P.L. 320, § 2; as amended by 1989 Ind. Acts P.L. 296, § 2; as amended by 1989 Ind. Acts P.L. 138, § 6; as amended by 1990 Ind. Acts P.L. 1, § 354. FN10. 1993 Ind. Acts P.L. 250 § 2. The statute has been amended subsequently in ways not material to the analysis of this issue. See 1993 Ind. Acts P.L. 230 § 5; 1994 Ind. Acts P.L. 158 § 7; 1995 Ind. Acts P.L. 306 § 1; 1996 Ind. Acts P.L. 228 § 1; 1996 Ind. Acts P.L. 216 § 25. As noted in note 2, supra, Ind.Code § 35-50-2-9 as amended in 1994 governs this case.

Relying on language in the Furman v. Georgia and Gregg v. Georgia opinions FN11 condemning as unconstitutional “unfettered discretion” in death sentencing statutes, defendant argues that the 1993 amendment rendered the Indiana death penalty statute unconstitutional by giving the Indiana sentencer “unfettered discretion” to choose between death and life without parole. FN11. Defendant cites to Furman v. Georgia, 408 U.S. 238, 309-10, 92 S.Ct. 2726, 2762-63, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring); id. at 314, 92 S.Ct. at 2764-2765 (White, J., concurring); Gregg v. Georgia, 428 U.S. 153, 189, 195, 96 S.Ct. 2909, 2932-33, 2935-36, 49 L.Ed.2d 859 (1976) (opinion of Stewart, J., with two other justices concurring).

Assessing slightly different arguments, we reject a similar constitutional claim today in Stevens v. State, 691 N.E.2d 412 (Ind.1997). Prior to the 1993 amendments, while a death sentence was authorized to be imposed when the criteria specified in the statute were met, a death sentence was not required to be imposed; FN12 the sentencer had (and still has) discretion to impose imprisonment for a term of years. If there was no constitutional defect prior to the 1993 amendment, as defendant appears to contend, in the sentencer having the discretion to impose a term of years rather than death, then we see no new defect occasioned by the sentencer having the additional discretion to impose life without parole rather than death. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

FN12. Indeed, a sentencing scheme that would require death to be imposed would be unconstitutional. Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987); see also Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991-92, 49 L.Ed.2d 944 (1976) (opinion of Stewart, J., with two other justices concurring).

For a death penalty statute to be constitutional in this context, the statute must “establish a threshold below which the [death] penalty cannot be imposed.” Romano v. Oklahoma, 512 U.S. 1, 6, 114 S.Ct. 2004, 2009, 129 L.Ed.2d 1 (1994) (quoting McCleskey v. Kemp, 481 U.S. 279, 305, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262 (1987)).FN13 To meet this threshold, the statute must contain “rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold.” McCleskey, 481 U.S. at 305, 107 S.Ct. at 1774. The statute must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). The statute must limit the decisionmaker's discretion “so as to minimize the risk of wholly arbitrary and capricious action.” Zant, 462 U.S. at 874, 103 S.Ct. at 2741.

FN13. A second requirement is that the statute ensure that the sentencing body bases its decision on the character of the individual defendant and on the nature of the offense(s) he or she committed. Romano v. Oklahoma, 512 U.S. 1, 7, 114 S.Ct. 2004, 2009, 129 L.Ed.2d 1 (1994) (citing McCleskey v. Kemp, 481 U.S. 279, 302, 107 S.Ct. 1756, 1772, 95 L.Ed.2d 262 (1987)). Defendant also challenges this facet of Indiana's death penalty statute, and we address the issue infra.

The Indiana death penalty statute, Ind.Code § 35-50-2-9, meets these requirements. After a defendant is convicted of Murder, the State must prove beyond a reasonable doubt the existence of at least one aggravating circumstance listed in the statute before that defendant becomes eligible for the death penalty. Ind.Code § 35-50-2-9(a) & (b). After the jury determines that the State has met its burden of proof, it must balance the aggravating and any mitigating circumstances and find that the aggravating factors outweigh the mitigating factors before it can recommend a sentence. Ind.Code § 35-50-2-9(i). In deciding whether to follow the jury's recommendation, the trial court, which has the authority to impose the sentence, must follow the same process as did the jury in reaching its recommendation. Ind.Code § 35-50-2-9(g), (i).

The additional sentencing option of life without parole merely affords the jury another opportunity to narrow the class of defendants eligible for the death penalty, and “[o]nce the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, ... [it] then is free to consider a myriad of factors to determine whether death is the appropriate punishment.” California v. Ramos, 463 U.S. 992, 1008, 103 S.Ct. 3446, 3457, 77 L.Ed.2d 1171 (1983). Accordingly, we find that Indiana's death penalty statute constitutionally permits a sentence of death or life imprisonment without parole.

Proportionality.

Defendant was charged with and convicted of the “knowing” murders of Debbie Wrinkles, Mark Fulkerson, and Natalie Fulkerson. “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind.Code § 35-41-2-2(b) (1993). The trial court sentenced defendant to death based on its finding that the State proved beyond a reasonable doubt the existence of the multiple murder statutory aggravator,FN14 thus making defendant eligible for the death penalty. Ind.Code § 35-50-2-9(a). As such, neither the jury nor the judge was called upon to make a discrete determination that any of the killings were “intentional.” FN15 Defendant argues that imposing the death penalty for “knowing,” as opposed to “intentional,” murder is unconstitutional under the Eighth Amendment to the United States Constitution and Article I, Section 16, of the Indiana Constitution.

FN14. “The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.” Ind.Code § 35-50-2-9(b)(8). FN15. “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” Ind.Code § 35-41-2-2(a) (1993).

Defendant does not ground his state constitutional claim in an analysis of the text or history of Article I, Section 16. Instead, he contends that the legislature, from passage of the state constitution until 1977, only authorized the imposition of the death penalty for “intentional” murders and felony murders.FN16 This indicates, he argues, that imposition of the death penalty for “knowing” murders (a mental state less culpable than “intentional”) must have been considered to violate the Article I, Section 16, requirement that “[a]ll penalties shall be proportioned to the nature of the offense.”

FN16. Br. of Appellant at 32-33. Defendant broadly traces the history of Indiana's death penalty statute, starting with Chapter XXXVII, § 3 of General Laws of the State (1881) (“Whoever, purposely and with premeditated malice, or in the perpetration of [certain felonies] ...”), continuing to Ind. Stat. Ann. § 10-3401 (Michie 1941) (same), and finishing with Ind.Code § 35-13-4-1 (1973) (same).

Whatever we may properly infer from legislative enactments in conducting constitutional exegesis, we do not find the statutes cited here to support defendant's claim. As defendant acknowledges, those statutes all permitted the imposition of the death penalty in cases of felony murder. But in felony murder, there is no culpability requirement at all, i.e., a mental state less culpable than “knowing.”

We addressed a similar claim brought under the federal constitution in Baird v. State, 604 N.E.2d 1170 (Ind.1992). There we held that imposing a sentence of death for the commission of multiple “knowing” murders was not unconstitutional. We reasoned in Baird that the defendant's “death sentence rest[ed] on the multiple formations of a highly culpable ‘knowing’ state of mind resulting in multiple murders....” Baird, 604 N.E.2d at 1184. The defendant in Baird did not receive the death penalty simply because he had committed “knowing” murders, but because he had committed multiple murders, thus making himself eligible for the death penalty. See Ind.Code § 35-50-2-9(b)(8).

Our decision in Baird comports with the Supreme Court's treatment of the issue of the degree of culpability necessary to support a death sentence in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). The defendants in Tison were two brothers convicted of capital murder under Arizona's felony-murder and accomplice-liability statutes.FN17 The Tison brothers challenged their death sen tences on the ground that the Supreme Court's holding in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982),FN18 required a finding of intent to kill before a court could impose the death penalty. The Court stated that “[a] narrow focus on the question of whether or not a given defendant ‘intended to kill,’ however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers.” Tison, 481 U.S. at 157, 107 S.Ct. at 1687. The Court went on to hold that the “reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.” Id. at 157-58, 107 S.Ct. at 1688.

FN17. The Tison brothers actively participated in engineering their father's and his cell mate's escape from prison; flagging down and stealing a getaway car; and kidnaping the car's driver and three passengers. The father and his cell mate shot and killed the four kidnap victims while the brothers stood by and did nothing to halt the murders.

FN18. Enmund drove the getaway car in an armed robbery that resulted in a double murder. Enmund was convicted and sentenced to death under Florida's felony-murder rule. The Supreme Court reversed Enmund's death sentence, finding a lack of intent to kill because Enmund's role in the robbery was too remote in relation to the murders, and the culpability of those who committed the murders and robbery was not attributable to him.

Here, defendant does not argue that he was convicted wrongly of “knowing” murders. Rather, he challenges the constitutionality of Indiana's death penalty statute as it applies to “knowing” murders. Tison holds that a death sentence is permissible where, despite no finding of intent to kill, the defendant nonetheless has demonstrated a highly culpable mental state. Such is the case here, where the court imposed the death sentence based on the State's proving beyond a reasonable doubt the existence of the multiple murder statutory aggravator.

Jury Role.

Defendant contends that Indiana's capital sentencing structure unconstitutionally misleads the jury into believing its role in the sentencing process is merely advisory in violation of the Supreme Court's holding in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell, the prosecutor implied to the jury that its decision to impose the death penalty carried little import because the death sentence was immediately reviewable by an appellate court. The Court held that it is unconstitutional for a judge to follow the sentencing recommendation of a jury who believes its role is merely advisory and that the defendant's fate ultimately rests elsewhere. Caldwell, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231.

This Court has addressed previously the issue defendant raises today-that the language of Indiana's death penalty statute confuses the average lay juror as to his or her role in the sentencing process. In Miller v. State, 623 N.E.2d 403 (Ind.1993), this Court distinguished a claim similar to defendant's from the Caldwell holding by noting that “we are not dealing with comments made by the prosecuting attorney but are dealing with the structure of a statute which delegates to the jury the role of examining the evidence and making a recommendation to the trial judge concerning the sentence. In Caldwell, the actual responsibility for the death penalty, although reviewable on appeal, was a final determination at the trial level by the jury. In Indiana, all concerned are fully advised that the jury's examination of the evidence and recommendation is for the edification of the trial judge who has the ultimate responsibility in imposing the sentence.” Miller, 623 N.E.2d at 410-11. An Indiana jury does not determine a sentence, but only makes a sentencing recommendation. The trial court decides whether to impose a sentence of life imprisonment without parole or the death penalty. It is not error to inform the jury that its sentencing decision is a recommendation, because this is a correct statement of Indiana law. See 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). Ind.Code § 35-50-2-9 is not susceptible to a Caldwell claim of the sort defendant advances, and we accordingly reject defendant's contention.

Prior Criminal History Mitigator.

Defendant attacks the “no significant history of prior criminal conduct” mitigator FN19 as “fail [ing] to adequately guide the sentencer's discretion because it is vague and meaningless, allows consideration of unreliable information, and precludes consideration of relevant mitigation evidence.” FN20 Br. of Appellant at 39. Before analyzing defendant's claim, we note that the trial court specifically found this mitigating factor to exist and used it in the statutory balancing process required by Ind.Code § 35-50-2-9(i) before deciding to follow the jury's recommendation to impose the death sentence. FN19. Ind.Code § 35-50-2-9(c)(1) (1993).

FN20. We previously rejected a similar claim against the statutory provisions generally concerning aggravating and mitigating factors. Harrison v. State, 644 N.E.2d 1243, 1258 (Ind.1995).

The Supreme Court expressly approved the use of this mitigating factor in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). FN21 The petitioner in Proffitt argued that the aggravating and mitigating factors in Florida's capital sentencing scheme were overly broad, and that neither judge nor jury could determine whether a defendant had a “significant history of prior criminal activity.” FN22 The Court acknowledged that making this decision is difficult, but that it “require[s] no more line drawing than is commonly required of a factfinder in a lawsuit.” Proffitt, 428 U.S. at 257, 96 S.Ct. at 2969 (rejecting petitioner's challenge to several statutory aggravating and mitigating factors). Under this statutory scheme, the “trial court's sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.” Id. at 258, 96 S.Ct. at 2969.

FN21. The Florida death penalty statute upheld in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), is substantially similar to Indiana's death penalty statute. See Brewer v. State, 275 Ind. 338, 417 N.E.2d 889, 897 (1981) (comparative analysis of Florida and Indiana death penalty statutes); Judy v. State, 275 Ind. 145, 416 N.E.2d 95, 107 (1981) (same). FN22. Fla. Stat. Ann. § 921.141(6) (Supp.1976-1977).

Based on the Supreme Court's upholding of a similar mitigating factor in Florida's capital sentencing scheme, and on the trial court's finding this mitigator to exist in defendant's case, we hold that the “no significant history of prior criminal conduct” is not unconstitutionally vague, and that defendant was prejudiced in no way by the trial court's consideration of that mitigator during the sentencing process.

Jury Findings.

Defendant's final constitutional argument is that Indiana's capital sentencing structure is unconstitutionally unreliable in violation of the Eighth Amendment of the United States Constitution because the jury is not required to produce written findings of the specific aggravating and mitigating factors it relied on in reaching its decision to recommend the death penalty. To support this argument, defendant analogizes the heightened role of a jury in a capital case to the role of the sentencing judge who is required to make specific written findings of aggravators and mitigators before imposing an enhanced sentence.FN23 Defendant contends that the trial court judge cannot review meaningfully, and decide whether to follow, the jury's recommendation unless the jury has made specific written findings regarding the balancing process in which it engaged.

FN23. Battles v. State, 688 N.E.2d 1230, 1234-35 (Ind.1997); Jones v. State, 675 N.E.2d 1084, 1087 (Ind.1996).

This Court has rejected the requirement of written findings for juries in capital cases. “While the trial court must consider the jury's recommendation and its sentence must be based on the same standards that the jury was required to consider, we perceive nothing of a constitutional dimension that would require the trial court to have the details of the jury's deliberations before it in discharging these statutory obligations.” Harrison v. State, 644 N.E.2d 1243, 1259 n. 28 (Ind.1995). See also Martinez Chavez v. State, 534 N.E.2d 731, 734 (Ind.1989). We decline to revisit further this issue.

Death Sentence Review

The Indiana Constitution provides that “[t]he Supreme Court shall have, in all appeals of criminal cases, the power to review and revise the sentence imposed.” Ind. Const. art. VII, § 4. Although our rules for appellate review of sentences require that great deference be given to the judgment of the trial court, e.g., Ind.Appellate Rule 17, where the sentence is death, those rules “stand more as guideposts for our appellate review than as immovable pillars supporting a sentence decision.” Spranger v. State, 498 N.E.2d 931, 947 n. 2 (Ind.1986). In fact, we have made it clear that “this Court's review of capital cases under Article 7 is part and parcel of the sentencing process.” Cooper v. State, 540 N.E.2d 1216, 1218 (Ind.1989).

This special review of death sentences is grounded in the Indiana Constitution, our state's death penalty statute, and federal death penalty jurisprudence. Harrison, 644 N.E.2d at 1260. The United States Supreme Court “has repeatedly said that under the Eighth Amendment ‘the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.’ ” Caldwell v. Mississippi, 472 U.S. at 329, 105 S.Ct. at 2639 (quoting California v. Ramos, 463 U.S. at 998-99, 103 S.Ct. at 3452). Meaningful appellate review of death sentences plays a crucial role in ensuring that the death penalty is not imposed arbitrarily or irrationally. Parker v. Dugger, 498 U.S. 308, 321, 111 S.Ct. 731, 739-40, 112 L.Ed.2d 812 (1991); Gregg v. Georgia, 428 U.S. 153, 204-06, 96 S.Ct. 2909, 2939-41, 49 L.Ed.2d 859 (1976).

Penalty Phase.

Our death penalty statute guides our review of death sentences by setting forth standards governing trial court imposition of death sentences. Following completion of the guilt phase of the trial and the rendering of the jury's verdict, the trial court reconvenes for the penalty phase. Before a death sentence can be imposed, our death penalty statute requires the State to prove beyond a reasonable doubt at least one aggravating circumstance listed in subsections (b)(1) through (b)(12) of the statute. Ind.Code § 35-50-2-9. Here the State supported its request for the death penalty with the aggravator listed in subsection (b)(8): “The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.” FN24 Id. To prove the existence of this aggravating circumstance at the penalty phase of the trial, the State incorporated by reference all of the evidence from the earlier guilt phase of the trial (with respect to which the jury had found defendant guilty of the three murders).

FN24. We have held that this aggravator is available only in cases in which the defendant is tried in the same proceeding for the multiple murders alleged in the aggravating circumstances. Williams v. State, 669 N.E.2d 1372, 1389 (Ind.1996), reh'g denied, cert. denied, 520 U.S. 1232, 117 S.Ct. 1828, 137 L.Ed.2d 1034 (1997); State v. McCormick, 272 Ind. 272, 278, 397 N.E.2d 276, 280 (1979).

The death penalty statute requires that any mitigating circumstances be weighed against any properly proven aggravating circumstances. In addition to mitigating circumstances supported by the guilt phase evidence (in particular, the extensive testimony of clinical psychologist Dr. Eric S. Engum as to defendant's personality disorders and drug abuse), defendant offered the testimony of four witnesses during the penalty phase. Three-Mary Winnecke (the mother of Natalie Fulkerson and legal guardian of the Fulkersons' children, Matthew and Kim), Carolyn Casper (a relative by marriage of Debbie Wrinkles and guardian of the Wrinkles's children, Lindsey and Seth) and Lindsey Wrinkles (defendant's fourteen-year-old daughter)-testified from their perspectives as victims of defendant's crimes that they did not desire defendant to be sentenced to death.

Defendant argues that during this phase of the trial, the court erroneously admitted victim impact evidence over his objection. This Court has held that victim impact evidence is admissible in the penalty phase of a trial only if it is relevant to one or more of the statutory aggravating factors argued by the State. Bivins v. State, 642 N.E.2d 928 (Ind.1994).

The victim impact testimony which defendant contends was admitted in error consisted of the testimony of Mary Winnecke regarding the effect of the murders on Matthew Fulkerson (prosecutor questioning): FN25. Testimony from Lindsey Wrinkles and defendant tends to show that Matthew witnessed defendant shooting Mark Fulkerson, Matthew's father.

Q. What effect has this had on Matthew? BY MR. VOWELS [defense counsel]: To which I would object. I believe that if the jury is allowed to consider that information that they may be so prejudiced that they will not render a fair trial to my client, denying him of his due process rights, his right to a fair trial. Can you think of anything else I should add to that? That's my objection. BY THE COURT: Mr. Levco? BY MR. LEVCO [prosecutor]: I don't wish to argue. BY THE COURT: Objection overruled. Q. You can answer the questions. A. How is Matthew? Q. How has this affected Matthew, if at all?

A. Uh, Matthew won't stay in a room and watch television alone. If I walk into the kitchen to fix supper and Matthew's watchin' cartoons and is just right around the wall, uh, he'll yell, Granny, there's nobody here with me. And I'll say, well, honey, I'm right her [sic] cookin' supper. And Matthew will say, but I'm all by myself. And he won't stay in a room by himself. And gets up every night and he gets in bed with us, or else he sleeps on a pallet. Some nights, I just-I have a pallet right by my bed and he'll lay there and I'll have my hand right on him. Uh, he woke up one night and he came in our room and he just-that child shook. And he said, Granny ... (WITNESS CRYING) ... I thought I heard Eric [defendant] in the house. And I said, baby, you're all right. I held him and I put him between me and Bob. Because, when he gets in bed with us, he just kinda climbs over me and lays right there. And he laid-I had my arm like this (WITNESS INDICATING) and Bob scooted over against him and we both held him and he just shook. And then he said he had to go to the bathroom and he had diarrhea. It's like I sat there by him and I held him, while he's sittin' on the pot, and he just shook and he cried. And so I put him back in bed and he still shook and he cried. And I said, Matthew, do you wanna go talk about it? And I said, let's go out in the living room. So, we went out and we turned on the lights and I sat in my rocker and I held him and we talked. And he cried and I just-and I said, Matthew, do you wanna go back in the bedroom by grandpa? So, we did. He, uh, if I got to put him to bed, and he shares a room with my 21-year old son, uh, and if Adam goes out of the room or if I put him on the pallet to go to sleep and Bob's in there and Bob gets up to go get a drink of water and Matthew's not asleep, Matthew will come right back out. I mean, he just-Matthew won't stay in a room by himself. Uh, I've gotten him so he'll go outside. Uh, last year we couldn't get him-it's been over the winter that Matthew will even go out in the yard and see outside by himself. He's confident enough for that. (R. at 3211-3214.)

We might well find this testimony violative of Bivins had the prosecutor presented it on direct examination. However, we find no error in its admission here because the State elicited the testimony from Mary Winnecke on cross-examination after defendant called her to testify at sentencing on his behalf. Winnecke's testimony against the death penalty for the defendant after he had killed her daughter and after she had witnessed firsthand the effects of the murder on her grandson was in effect an argument that death should not be imposed because of a lack of victim impact (or, at least, because of a lack of victim support for the penalty).FN26 This the State was entitled to rebut. FN26. Winnecke testified that her categorical opposition to the death penalty is rooted in her religious belief system.

The fourth witness called by the defendant at the penalty phase was a mitigation specialist engaged on defendant's behalf. The witness testified as to defendant's upbringing in a violent and otherwise dysfunctional family and as to the adverse impact of drug and alcohol abuse on defendant's mental condition. Following the presentation of this evidence, both sides made closing arguments.

At the conclusion of this phase of the trial, the trial court instructed the jury. Defendant claims that the trial court erred in failing to give an instruction on all of the available statutory penalties for Murder, i.e., that defendant could be sentenced to a term of years as an alternative to death or life without parole. Defendant did not object to the court's failure to instruct the jury, and he further posits that he was not required to have tendered a competing instruction because it is the affirmative duty of the trial court to instruct the jury in this manner. See Ind.Code § 35-50-2-9(d) (1993) (“ The court shall instruct the jury concerning the statutory penalties for murder and any other offenses for which the defendant was convicted, the potential for consecutive or concurrent sentencing and the availability of good time credit and clemency.” (emphasis supplied).) FN27

FN27. In addition to the duty imposed by Ind.Code § 35-50-2-9(d), the trial court must also instruct the jury on all matters of law necessary for their information in reaching a verdict. Ind.Code § 35-37-2-2(5) (1993). Speaking to the predecessor to § 35-37-2-2, this Court held that the statute “does not relieve a party from submitting desired instructions, if the court, through oversight or otherwise, fails to instruct as fully as a party desired. Counsel, knowing the court is omitting the instruction upon some point in the case, may not remain quiet and tender no instruction and afterwards claim the court erred. Such practice would be wrong and mischievous.” Barker v. State, 238 Ind. 271, 277, 150 N.E.2d 680, 683 (1958).

Generally, a defendant waives a claim of instructional omission if he fails to object and tender a competing instruction at trial, Mitchem v. State, 685 N.E.2d 671, 674 (Ind.1997), unless the alleged error constitutes fundamental error. Sanchez v. State, 675 N.E.2d 306, 308 (Ind.1996). “In order to rise to the level of fundamental error, the error must constitute a clearly blatant violation of basic and elementary principles, and the harm or potential for harm therefrom must be substantial and apparent. A claim of fundamental error is not viable absent a showing of grave peril and the possible effect on the jury's decision. We consider the jury instructions as a whole, and in reference to each other.” Isom v. State, 651 N.E.2d 1151, 1152 (Ind.1995), reh'g denied (citations and internal quotation marks omitted).

Upon our examination of the instructions as a whole, we agree with defendant that the trial court did not instruct the jury on all of the statutory penalties for Murder and other matters required by Ind.Code § 35-50-2-9(d).FN28 However, we find no reversible error for four reasons. First, we cannot say that counsel's failure to object to the absence of such an instruction was not tactical, inasmuch as appellants in capital cases have claimed error in the past in giving such instructions. See, e.g., Timberlake v. State, 690 N.E.2d 243, 257-58 (Ind.1997); Holmes, 671 N.E.2d at 856; Fleenor v. State, 622 N.E.2d 140, 145 (Ind.1993). Second, during their closing arguments during the penalty phase, both the prosecutor and defense counsel referred to the trial court's authority to impose imprisonment for a term of years as a sentence in this case and both indicated that if the court elected that option, it was unlikely that the defendant would ever be released from prison. Third, prior to the legislature requiring instruction on the range of penalties,FN29 we held it within the discretion of the trial court to refuse a defendant's request for such instruction. Burris, 465 N.E.2d at 188. Fourth, the jury was instructed that it had the option of recommending life without parole as an alternative to a sentence of death. Having recommended death notwithstanding the life without parole option, we reject defendant's argument that the jury might have recommended imprisonment for a term of years had it been instructed on its availability. We believe this omission does not rise to the level of fundamental error.

FN28. During the penalty phase, the trial court instructed the jury on penalties as follows: “You are to consider both aggravating and mitigating circumstances and recommend whether the death penalty, life imprisonment without parole, or neither, should be imposed.” (R. at 173; 189.) FN29. The legislature added this provision to the death penalty statute in 1993. 1993 Ind. Acts P.L. 250 § 2.

The jury subsequently returned a unanimous recommendation that a sentence of death be imposed.

Trial Court Sentencing Determination.

Once the jury has made its recommendation, the jury is dismissed, and the trial court has the duty of making the final sentencing determination. First, the trial court must find that the State has proven beyond a reasonable doubt that at least one of the aggravating circumstances listed in the death penalty statute exists. Ind.Code § 35-50-2-9(i)(1). Second, the trial court must find that any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances. Ind.Code § 35-50-2-9(i)(2). Third, before making the final determination of the sentence, the trial court must consider the jury's recommendation. Ind.Code § 35-50-2-9(e). The trial court must make a record of its reasons for selecting the sentence that it imposes. Ind.Code § 35-38-1-3.

These statutory provisions make clear that the sentencing court has a separate and independent role in assessing and weighing the aggravating and mitigating circumstances and in making the final determination whether to impose the death penalty. Benirschke v. State, 577 N.E.2d 576, 579 (Ind.1991). In arriving at its own separate determination as to whether the death penalty is an appropriate punishment, the sentencing court is to point out its employment of this process in specific and clear findings. Id. The trial court's statement of reasons (i) must identify each mitigating and aggravating circumstance found, (ii) must include the specific facts and reasons which lead the court to find the existence of each such circumstance, (iii) must articulate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence, Benirschke, 577 N.E.2d at 579; Evans v. State, 563 N.E.2d 1251, 1254 (Ind.1990), and (iv) must set forth the trial court's personal conclusion that the sentence is appropriate punishment for this offender and this crime. Benirschke, 577 N.E.2d at 579; Woods v. State, 547 N.E.2d 772, 793 (Ind.1989). The requirements for sentencing findings are more stringent in capital cases than in non-capital sentencing situations. Evans, 563 N.E.2d at 1254.

In imposing the death sentence, the trial court found that the State proved beyond a reasonable doubt one of the aggravating circumstances listed in the death penalty statute-that the defendant had committed another murder, to wit, the three murders in this case. The record and the law supports this finding.

The trial court found four mitigating circumstances to exist: (i) defendant had no significant history of prior criminal activity; (ii) defendant was under the influence of extreme mental and emotional disturbance at the time the three murders were committed; (iii) defendant's capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law may have been substantially impaired at the time of the murders because of his abuse of meth-amphetamines; and (iv) defendant grew up in a dysfunctional family which may have been responsible for mental or emotional disturbance.

As required by our death penalty statute, the trial court found that the mitigating circumstances that existed were outweighed by the aggravating circumstance. The trial court also gave consideration to the jury's recommendation and set forth its personal conclusion that the sentence was appropriate punishment for this offender and this crime. We find that the sentencing order entered by the trial court here suffices to meet the requirements imposed by statute and case law.FN30. In doing so, we reject defendant's contention that the sentencing order is deficient in four respects.

First, defendant argues that the trial court provided insufficient support for its conclusion that the multiple murder aggravator had been proved beyond a reasonable doubt. We find such support in the trial court's finding that the jury convicted the defendant of the three murders listed in the aggravator.

Second, defendant argues that the four mitigating circumstances found by the trial court were supported only with “bare-boned” conclusions. While these findings could have been supported in greater detail, they did refer to specific aspects of defendant's upbringing and drug abuse. We find them adequate.

Third, defendant appears to argue that the trial court failed to articulate the specific weight it assigned to the aggravating circumstance and the mitigating circumstances. While such an articulation is welcome, it is sufficient for purposes of both the statute and our review for the trial court to indicate that it has engaged in the weighing of the aggravators and mitigators as required by statute and that the aggravators outweigh the mitigators. That standard was met here.

Lastly, defendant argues that the trial court did not set forth its personal conclusion that the death sentence was appropriate for this offender and this crime. We find such a conclusion in the following excerpt from its findings: “The Court ... now ... finds that the imposition of the death penalty as to the Defendant, Matthew E. Wrinkles, is appropriate and proper....” Based on our review of the record and the law, we agree that the State has proven beyond a reasonable doubt an aggravating circumstance authorized by our death penalty statute and that the mitigating circumstances that exist are outweighed by the aggravating circumstance. We conclude that the death penalty is appropriate for defendant's murder of Debbie Wrinkles, Natalie Fulkerson and Mark Anthony Fulkerson.FN31 We further find this sentence to be proportionate not only to the nature of the offenses and the character of the defendant, but also to the sentences approved for capital Murder in other Indiana cases. See, e.g., Matheney v. State, 688 N.E.2d 883 (Ind.1997); Prowell v. State, 687 N.E.2d 563 (Ind.1997); Baird, 604 N.E.2d 1170; Conner v. State, 580 N.E.2d 214 (Ind.1991).

FN31. In reaching this conclusion, we have considered the arguments made to us in this appeal to the effect that the death penalty is not appropriate in light of the nature of the offense and the character of the defendant. Br. of Appellant at 80-85.

Conclusion

Defendant's convictions and death sentence are affirmed.

SHEPARD, C.J., and DICKSON, SELBY and BOEHM, JJ., concur.

Wrinkles v. State, 749 N.E.2d 1179 (Ind. 2001) (Postconviction)

After his convictions for three counts of murder, and sentence of death, were affirmed on direct appeal, 690 N.E.2d 1156, defendant sought post-conviction relief. The Vanderburgh Circuit Court, Carl Heldt, J., denied petition. Defendant appealed. The Supreme Court, Rucker, J., held that: (1) trial counsel were not ineffective in failing to present insanity defense; (2) counsel were not ineffective in preparing defendant, and neuropsychologist who testified as expert, for trial; (3) use of electrical “stun belts” to restrain defendants is forbidden; but (4) counsel were not ineffective in failing to object to use of such a belt in instant case; (5) fact that attorneys appointed to represent defendant carried a felony caseload in excess of that allowed under Criminal Rules did not by itself establish ineffective assistance; and (6) defendant did not receive ineffective assistance of appellate counsel. Affirmed.

Boehm, J., concurred in part and concurred in the result in part and filed opinion.

RUCKER, Justice.

After a trial by jury, Matthew Eric Wrinkles was convicted of three counts of murder in the shooting deaths of his wife Debbie Wrinkles, his brother-in-law Mark Fulkerson, and his sister-in-law Natalie Fulkerson. Following the jury's recommendation, the trial court sentenced him to death. We affirmed his convictions and sentence on direct appeal. See Wrinkles v. State, 690 N.E.2d 1156 (Ind.1997). Thereafter, Wrinkles filed a petition for post-conviction relief and now appeals the denial of that petition raising several issues for our review, which we consolidate and rephrase as follows: (1) did Wrinkles receive ineffective assistance of trial counsel during the guilt, penalty, and sentencing phases of trial; and (2) did Wrinkles receive ineffective assistance of appellate counsel.

We affirm the post-conviction court's denial of Wrinkles' petition for post-conviction relief.

Factual and Procedural Background

In June 1994, Wrinkles' wife Debbie and the couple's two children, Lindsay and Seth, moved into the Evansville home of Mark and Natalie Fulkerson, Debbie's brother and sister-in-law. Wrinkles filed for divorce on June 30, 1994, and Debbie obtained a protective order that same day prohibiting Wrinkles from having any contact with her and the children.

At a provisional divorce hearing on July 20, 1994, Debbie agreed to a rescission of the protective order, and Wrinkles and Debbie agreed that Debbie would retain custody of the children but Wrinkles would have reasonable visitation rights. Wrinkles and Debbie agreed to meet later that day at a local fast food restaurant so that Wrinkles could see his children, whom he had not seen in over a month. However, Debbie and the children never showed up. Wrinkles called his divorce attorney, who told him that although nothing could be done that night because the courts were closed, he would take care of it tomorrow. Wrinkles, still frustrated, called the Fulkerson home to speak with Debbie, but she was not there. When Debbie returned later that night, she called Wrinkles to set up a meeting for the next day, but there was no answer.

Around 2 a.m. on July 21, 1994, Wrinkles parked his truck a block away from the Fulkerson home, put on camouflage clothing, painted his face, and armed himself with a .357 magnum revolver and a knife. He then climbed over a fence into the Fulkersons' backyard, cut the telephone wires, and kicked in the back door. Wrinkles first approached Mark in his bedroom, shooting him four times in the presence of his three-year-old son. Awakened by the gunshots, Debbie entered the bedroom hallway and saw that Wrinkles had shot her brother. Debbie, who had already grabbed her gun for protection, shot Wrinkles in the arm and then fell to the floor. Lindsay, also awakened by the gunshots, entered the bedroom hallway and, upon seeing her father about to shoot her mother, pleaded, “Dad, please don't shoot Mom.” R. at 2090.FN1 Wrinkles responded “shut up” and then shot Debbie in the chest. R. at 2091. In the meantime, Natalie ran out the front door. Wrinkles followed Natalie onto the front porch and shot her in the face at close range. Subsequent autopsies revealed that Mark, Debbie, and Natalie each died from gunshot wounds.

FN1. “R.” refers to the trial court record, and “P-C R.” refers to the post-conviction court record.

Police apprehended Wrinkles later that morning in Warrick County. The State charged Wrinkles with three counts of murder that same day and filed a notice of its intent to seek the death penalty on July 28, 1994. The trial court appointed salaried, part-time public defenders Dennis Vowels and Michael Danks to represent Wrinkles. The trial was held on May 15-19, 1995. The defense theory at trial was that because of a combination of Debbie depriving Wrinkles of access to his children and his methamphetamine addiction, Wrinkles broke into the Fulkerson home to get his children and shot the victims only after Debbie shot him and the other victims pointed guns at him. The jury found him guilty as charged. The penalty phase was held on May 20, 1995, and the jury returned a recommendation of death. A month later, the trial court, finding that the multiple murder aggravator FN2 outweighed the mitigators, imposed the death penalty. Wrinkles appealed his convictions and sentence, and we affirmed. Wrinkles v. State, 690 N.E.2d 1156 (Ind.1997). Wrinkles then filed a petition for post-conviction relief, which the post-conviction court denied. This appeal ensued.

FN2. The multiple murder aggravator requires that “[t]he defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.” Ind.Code § 35-50-2-9(b)(8). This subsection is considered in cases involving double or multiple murders for which the defendant is being tried in one proceeding. Pope v. State, 737 N.E.2d 374, 381 n. 4 (Ind.2000) (citing Hough v. State, 560 N.E.2d 511, 519 (Ind.1990)).

Wrinkles raises several issues in this appeal, most of which are either waived or are subject to the doctrine of res judicata.FN3 We address the merits of those that remain: (1) did Wrinkles receive ineffective assistance of trial counsel during the guilt, penalty, and sentencing phases of trial; and (2) did Wrinkles receive ineffective assistance of appellate counsel.

FN3. Claims that are available, but not presented, on direct appeal are waived for post-conviction review unless the claimed error is fundamental. Conner v. State, 711 N.E.2d 1238, 1246 (Ind.1999), cert. denied, 531 U.S. 829, 121 S.Ct. 81, 148 L.Ed.2d 43 (2000). In order to avoid waiver, Wrinkles argues that the following “freestanding” issues represent fundamental error: (1) did the trial court err in forcing him to wear a stun belt without establishing a need for it on the record; and (2) did the prosecutor commit prosecutorial misconduct? However, in order to demonstrate fundamental error in a post-conviction proceeding, a defendant must persuade the court, by a preponderance of the evidence, that a violation of basic principles of law caused the defendant's conviction or sentence to be invalid. Id. As for issue (1), Wrinkles merely says “[t]his issue is available on post-conviction. Use of the shock belt constitutes fundamental error....” Br. of Appellant at 22. As for issue (2), Wrinkles proclaims “[t]he State misconduct here, individually and/or cumulatively, constituted fundamental error.” Br. of Appellant at 81. Post-conviction procedures do not provide a petitioner with an opportunity to present freestanding claims that contend the original trial court committed error. Lambert v. State, 743 N.E.2d 719, 726 (Ind.2001). In this case, Wrinkles has failed to meet the standard required to demonstrate fundamental error. The issues he contends are available for review as freestanding claims are waived.

Wrinkles also argues that issue (1) is available for post-conviction review. He asserts that it was unknown and unavailable on direct appeal because there was nothing in the record indicating that Wrinkles wore a stun belt during trial. To the contrary, as even Wrinkles points out, “The shock belt vibrated once during trial,” Br. of Appellant at 21, at which point attorney Danks asked for a recess. After it was determined that the batteries were low, the batteries were replaced, and the trial resumed. P-C R. at 1142-44. Further, attorney Danks was co-counsel on Wrinkles' direct appeal. Therefore, he had knowledge about the use of the stun belt.

Lastly, Wrinkles contends on post-conviction that his death sentence constitutes “cruel and unusual punishment” because of “unfair and unreliable sentencing procedures.” Br. of Appellant at 96. We reviewed Wrinkles' death sentence on direct appeal and found it to be appropriate. Wrinkles, 690 N.E.2d at 1173. To the extent Wrinkles now seeks to relitigate the appropriateness of his death sentence, his claim is barred by res judicata. See State v. Holmes, 728 N.E.2d 164, 168 (Ind.2000) (stating that as a general rule, when this Court decides an issue on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-conviction proceedings), cert. denied, 532 U.S. 1067, 121 S.Ct. 2220, 150 L.Ed.2d 212 (2001). To the extent Wrinkles challenges his sentence on grounds not presented on direct appeal, he has waived his challenge. In this appeal, we address only those claims raised in the context of ineffective assistance of counsel.

Standard of Review for Post-Conviction

Post-conviction procedures do not afford the convicted an opportunity for a “super-appeal.” Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind.2000), reh'g denied, petition for cert. filed, --- U.S.L.W. ---- (U.S. Mar. 14, 2001) (No. 00-9185). Rather, they create a narrow remedy for subsequent collateral challenges to convictions which must be based on grounds enumerated in the post-conviction rules. Id.; Williams v. State, 724 N.E.2d 1070, 1076 (Ind.2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 886, 148 L.Ed.2d 793 (2001). Petitioners must establish their grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner who has been denied post-conviction relief appeals from a negative judgment. Prowell v. State, 741 N.E.2d 704, 708 (Ind.2001). Therefore, the petitioner must convince the court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Id.; Ben-Yisrayl, 729 N.E.2d at 106. Stated differently, “[t]his Court will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion.” Miller v. State, 702 N.E.2d 1053, 1058 (Ind.1998).

In the present case, the post-conviction court entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). A post-conviction court's findings and judgment will be reversed only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake has been made. Prowell, 741 N.E.2d at 708; Ben-Yisrayl, 729 N.E.2d at 106. Wrinkles, however, argues that we should apply the clearly erroneous standard “with a little more bite” because the post-conviction court's findings of facts and conclusions of law are a virtually verbatim copy of those proposed by the State. Reply Br. of Appellant at 2 (quotation omitted). We recently addressed a trial court's wholesale adoption of a party's findings of fact and conclusions of law in Prowell: It is not uncommon for a trial court to enter findings that are verbatim reproductions of submissions by the prevailing party. The trial courts of this state are faced with an enormous volume of cases and few have the law clerks and other resources that would be available in a more perfect world to help craft more elegant trial court findings and legal reasoning. We recognize that the need to keep the docket moving is properly a high priority of our trial bench. For this reason, we do not prohibit the practice of adopting a party's proposed findings. But when this occurs, there is an inevitable erosion of the confidence of an appellate court that the findings reflect the considered judgment of the trial court. This is particularly true when the issues in the case turn less on the credibility of witnesses than on the inferences to be drawn from the facts and the legal effect of essentially unchallenged testimony. Prowell, 741 N.E.2d at 708-09. Although we reiterate the foregoing concerns here, we decline Wrinkles' invitation to modify our standard of review.

Standard of Review for Ineffective Assistance of Counsel

To establish a post-conviction claim alleging violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish before the post-conviction court the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). First, a defendant must show that counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This requires showing that counsel's representation fell below an objective standard of reasonableness and that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed to the defendant by the Sixth Amendment. Id. at 687-88, 104 S.Ct. 2052. Second, a defendant must show that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different. Id. at 694, 104 S.Ct. 2052. A reasonable probability is a probability 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. Ben-Yisrayl, 729 N.E.2d at 106. Counsel's poor trial strategy, bad tactics, a mistake, carelessness, or inexperience do not necessarily amount to ineffective assistance of counsel. Carr v. State, 728 N.E.2d 125, 131 (Ind.2000).

I. Ineffective Assistance of Trial Counsel

A. Failure Adequately to Investigate, Develop, and Present an Insanity Defense

Wrinkles first contended before the post-conviction court that counsel were ineffective for not adequately investigating, developing, and presenting an insanity defense. Wrinkles asserts that if counsel had presented an insanity defense, the jury would have found him guilty but mentally ill and consequently it would not have recommended, and the trial court would not have imposed, the death penalty.

Attorney Vowels testified at the post-conviction hearing that their guilt phase theory was: That [Wrinkles] had been deprived access to his children, that he was manipulated by his deceased wife away from seeing his kids, that she had marshalled [sic] her family in support of her efforts to keep Mr. Wrinkles away from his children, that there had been arrangements made in a recent domestic relations hearing for him to be around his kids, that she had violated the intent and spirit of that agreement, which has happened just a very short time before her death, that he was a frustrated man who had no control over access to his children, that he went off, that it just got to be too much for him. P-C R. at 1205. Attorney Danks supplemented this theory at the post-conviction hearing: “Wrinkles was shot first, was wounded and then however else the shootings occurred was a result of him being wounded.” P-C R. at 1044.

In addition to this basic theory, counsel presented the trial testimony of neuropsychologist Dr. Eric Engum. Dr. Engum evaluated Wrinkles on April 4-5, 1995. On these days, Dr. Engum spent approximately thirteen hours with Wrinkles and performed a battery of psychological tests that included objective psychological testing, neuropsychological testing, and a subjective personality assessment. R. at 2989, 2990-91. Dr. Engum diagnosed Wrinkles with severe Mixed Personality Disorder, Delusional Disorder which became increasingly acute in the last sixty or ninety days before the shootings, amphetamine dependence with the likelihood of amphetamine-induced psychotic disorder with delusions, cannabis dependence, and alcohol dependence-all of which are recognized mental illnesses. R. at 2994-96. Dr. Engum elaborated that people who are highly dependent on methamphetamine, such as Wrinkles who used methamphetamine on a daily basis for ten years, “become very agitated, extremely restless, they don't sleep well, they're easily angered, they have very low frustration tolerance-the slightest thing will set them off. They also develop [a] very highly attuned sense of suspiciousness and paranoia.” R. at 2995, 3008. Dr. Engum ultimately concluded that although Wrinkles' judgment was substantially impaired at the time of the shootings, he was sane; that is, Wrinkles knew what he was doing and could conform his conduct to the requirements of the law. R. at 2997.

Despite counsels' theory and Dr. Engum's testimony, Wrinkles contends that counsel should have presented an insanity defense for primarily two reasons. First, Wrinkles argues that counsels' theory rings of self-defense, which requires a defendant to be in a place where he had the right to be. Wrinkles asserts that because he broke into the Fulkerson home, he was not in a place where he had the right to be; therefore, self-defense was not legally viable.

It is true that counsels' theory could not have completely exonerated Wrinkles. However, counsel could have employed it in an attempt to avoid murder convictions and the death penalty. There is no requirement that a theory must have the potential to completely exonerate a defendant before it can be used without ineffective assistance of counsel implications. See Allen v. State, 686 N.E.2d 760, 778 (Ind.1997) (finding no ineffective assistance where defense counsel's theory was not completely to exonerate defendant but to avoid murder conviction and death penalty in favor of conviction for voluntary manslaughter).

Second, Wrinkles claims that contrary to Dr. Engum's conclusion, he was indeed insane at the time of the shootings because of methamphetamine-induced psychosis. Wrinkles relies on the post-conviction testimony of toxicologist Dr. Michael Evans and clinical psychologist Dr. Robert Smith. Dr. Evans, who did not interview Wrinkles, testified that methamphetamine is the strongest drug in terms of addiction, it produces paranoia and violence, and long-term use can cause genetic changes in the brain. P-C R. at 2495, 2497, 2507. Dr. Evans then concluded that based on hair samples taken from Wrinkles three weeks after the shootings, Wrinkles was addicted to methamphetamine at the time of the shootings. P-C R. at 2509. Dr. Smith testified that based on tests performed on Wrinkles approximately five years after the shootings, Wrinkles was insane at the time of the shootings because of methamphetamine-induced psychosis. P-C R. at 2567, 2582, 2583.

Although Dr. Evans elaborated more on the adverse effects of methamphetamine use in his post-conviction testimony than Dr. Engum did in his trial testimony, Dr. Engum and Dr. Evans both concluded that Wrinkles was addicted to methamphetamine at the time of the shootings. Similarly, Dr. Engum and Dr. Smith both diagnosed Wrinkles with methamphetamine-induced psychosis; their only point of disagreement concerned Wrinkles' sanity at the time of the shootings. Here, Wrinkles has shown only that two experts came to different conclusions-a fact that can hardly be said to form the basis for an ineffective assistance claim.

In addition, although not officially presenting an insanity defense, counsel presented evidence of Wrinkles' methamphetamine addiction and its role in the shootings throughout trial. They presented it during opening statement, R. at 1824; through four lay witnesses, R. at 2834, 2843, 2861-62, 2931-32, 2935-37; through Dr. Engum, R. at 2994-97, 3002, 3006-07; through Wrinkles, R. at 2711-12, 2715, 2720, 2722-23; and during closing argument, R. at 3141, 3143.

In fact, attorney Vowels testified at the post-conviction hearing that counsel did not want to introduce significant evidence of Wrinkles' methamphetamine use because they thought it would “put an additional layer of bad” on Wrinkles and make him appear as a “heavy doper.” P-C R. at 1211, 1320. Attorney Danks testified at the post-conviction hearing that it was a tactical decision not to put on more evidence about Wrinkles' methamphetamine use because they thought it would be more harmful than helpful. P-C R. at 1145.

Counsel is given significant deference in choosing a strategy which, at the time and under the circumstances, he or she deems best. Potter v. State, 684 N.E.2d 1127, 1133 (Ind.1997); see also Conner, 711 N.E.2d at 1248 (“Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord that decision deference.”); State v. Moore, 678 N.E.2d 1258, 1261 (Ind.1997) (“[A]lthough egregious errors may be grounds for reversal, we do not second-guess strategic decisions requiring reasonable professional judgment even if the strategy or tactic, in hindsight, did not best serve the defendant's interests.”). Such is the case here. We cannot say that the post-conviction court erred in concluding that counsel were not ineffective for failing to present an insanity defense when (i) their own trial expert concluded that Wrinkles was sane at the time of the shootings; (ii) counsel presented evidence of Wrinkles' methamphetamine addiction and its role in the shootings throughout trial; and (iii) counsel stated that it was a tactical decision not to take his addiction any farther. See Holmes, 728 N.E.2d at 172 (finding that counsel was not ineffective for not presenting evidence regarding the defendant's mental ability to plan and carry out the crime when counsel introduced evidence of the defendant's mental illnesses at trial).

B. Inadequate Preparation of Defense Witnesses

Wrinkles asserted before the post-conviction court that counsel were ineffective because they failed adequately to prepare him and Dr. Engum for their trial testimony. In support of this contention, Wrinkles relies exclusively on a discrepancy between his and Dr. Engum's trial testimony concerning the sequence in which the victims were shot. Wrinkles testified that he shot Debbie, Mark, and then Natalie. R. at 2730-32. However, Dr. Engum testified that Wrinkles told him during the April 1995 evaluation that he shot Natalie, Mark, and then Debbie. R. at 3075. Wrinkles seems to argue that if counsel had adequately prepared him and Dr. Engum, they would have been aware of this discrepancy and therefore they would have presented only one sequence of the shootings at trial. Not having done so, Wrinkles alleges that his and counsels' credibility was destroyed.

Wrinkles' argument is not persuasive. Attorney Danks, who examined Wrinkles at trial, testified at the post-conviction hearing that he prepared Wrinkles by talking with him about his testimony and about the defense theory of the case. P-C R. at 1043. Attorney Vowels testified that he engaged in role-play with Wrinkles before trial. P-C R. at 1204. Attorney Danks' billing records reflect that he spent approximately 19.75 hours consulting with Wrinkles prior to trial, including 5.5 hours the day before voir dire started, P-C R. at 1162-68, while attorney Vowels' billing records show that he spent 33.5 hours consulting with Wrinkles prior to trial, also including 5.5 hours the day before voir dire started, P-C R. at 1296-1310.

Attorney Danks, who also examined Dr. Engum at trial, testified at the post-conviction hearing that he went over Dr. Engum's testimony with him. P-C R. at 1044. In like fashion, Attorney Vowels also testified that he discussed Dr. Engum's testimony with him. P-C R. at 1203. Counsels' billing records support their testimony: attorney Danks' billing records reflect that he spent 4.25 hours consulting with Dr. Engum before trial, including 1.5 hours the day before Dr. Engum testified, P-C R. at 1166, 1167, while attorney Vowels' billing records show that he spent 3.5 hours consulting with Dr. Engum before trial, P-C R. at 1307, 1309, 1310.

Wrinkles' real argument seems to be that counsel found out “too late” about the discrepancy and therefore their “desperate attempt to fix the problem” was not sufficient. Reply Br. of Appellant at 9. The record shows that counsel were aware of the two sequences of the shootings-at the very least, the night before Dr. Engum testified. R. at 3071-72. Consequently, Dr. Engum did not testify on direct examination about the sequence of the shootings about which Wrinkles told him during the April 1995 evaluation. However, this information came out on cross-examination. R. at 3071. Dr. Engum then gave a possible explanation for the discrepancy. R. at 3078-79. He testified that Wrinkles' recollection of the sequence of the shootings may have been impaired by methamphetamine and alcohol. R. at 3076, 3078, 3080. Further, Dr. Engum explained that he was hired as an expert to diagnose Wrinkles and evaluate his state of mind at the time of the shootings-not to testify on behalf of the defense as a factual witness regarding the sequence of the shootings. R. at 3076-77. Counsels' performance was not deficient.

Even assuming counsels' performance was deficient, Wrinkles has failed to show prejudice. Basically, the discrepancy in Wrinkles' and Dr. Engum's testimony amounts to a difference between Wrinkles admitting that he shot the victims in one order as opposed to another. It does not change the fact that Wrinkles dressed in camouflage, painted his face, armed himself, cut the phone lines, broke into the Fulkerson home, and shot and killed his wife, brother-in-law, and sister-in-law. The post-conviction court did not err in concluding that counsel were not ineffective on this basis.

C. Failure to Object

Wrinkles alleged before the post-conviction court that counsel acted deficiently by not objecting to various statements made by witnesses and to various evidence proffered by the State. In order to prove ineffective assistance of counsel due to the failure to object, a defendant must prove that an objection would have been sustained if made and that he was prejudiced by the failure. Timberlake v. State, 690 N.E.2d 243, 259 (Ind.1997). The alleged instances can be summarized as follows: (1) the trial court required Wrinkles to wear a stun belt during trial without establishing a need for it on the record; (2) the victim impact statement which was contained in the Pre-sentence Investigation Report; (3) evidence of Wrinkles' prior bad acts; (4) the prosecutor's comments about Wrinkles during closing argument; (5) the testimony of Debbie White, a State's witness whose name was not provided to counsel prior to trial; and (6) admission of the murder weapon.

(1) Stun Belt

Wrinkles contends that counsel were ineffective for not objecting when the trial court ordered him to wear a stun belt during trial because the trial court did not place the reasons supporting the use of the stun belt on the record and no such reasons even existed. Wrinkles asserts that utilization of the stun belt, which was conspicuous to at least seven jurors, undermined [his] presumption of innocence and made him appear dangerous and uncontrollable in front of the jurors who would help decide whether he would live or die. Br. of Appellant at 29; Reply Br. of Appellant at 11. He claims that at the very least he is entitled to a new penalty phase of trial.

A defendant has the right to appear in front of a jury without physical restraints, unless such restraints are necessary to prevent the defendant's escape, to protect those present in the courtroom, or to maintain order during trial. Bivins v. State, 642 N.E.2d 928, 936 (Ind.1994). This right springs from the basic principle of American jurisprudence that a person accused of a crime is presumed innocent until proven guilty beyond a reasonable doubt. Sweet v. State, 498 N.E.2d 924, 929 (Ind.1986), superceded on other grounds by Ind. Evidence Rule 404; see also Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986); Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). For this presumption to be effective, courts must guard against practices that unnecessarily mark the defendant as a dangerous character or suggest that his guilt is a foregone conclusion. Sweet, 498 N.E.2d at 929; see also Holbrook, 475 U.S. at 567-68, 106 S.Ct. 1340; Estelle, 425 U.S. at 503, 96 S.Ct. 1691. As such, “the facts and reasoning supporting the trial judge's determination that restraints are necessary must be placed on the record.” Coates v. State, 487 N.E.2d 167, 169 (Ind.Ct.App.1985), overruled on other grounds by Hahn v. State, 533 N.E.2d 618 (Ind.Ct.App.1989); see also Roche v. State, 690 N.E.2d 1115, 1123 (Ind.1997) (“[T]he trial court should have made a record of the reasons for requiring the restraints....”), habeas corpus conditionally granted by Roche v. Anderson, 132 F.Supp.2d 688 (N.D.Ind.2001).

Typical methods of restraint include handcuffs, shackles, security chairs, and gagging a defendant. See James v. State, 716 N.E.2d 935, 941 (Ind.1999); Kindred v. State, 540 N.E.2d 1161, 1179 (Ind.1989); Avant v. State, 528 N.E.2d 74, 77-78 (Ind.1988); see also Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (“We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant [ ]: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.”). A more recent form of restraint is the stun belt.

The stun belt, also known as the REACT (Remote Electronic Activated Control Technology) security belt, is an electronic shocking device that is secured around the wearer's waist. Shelley A. Nieto Dahlberg, Comment, The REACT Security Belt: Stunning Prisoners and Human Rights Groups into Questioning Whether its Use is Permissible under the United States and Texas Constitutions, 30 St. Mary's L.J. 239, 246 (1998). It was first introduced into the criminal justice system in the early 1990's. Id. Developers of the belt promote it as an alternative to using leg-irons or shackles when transporting potentially dangerous or violent prisoners; however, the belt more recently is being used on defendants in courtrooms during trials. Id. There are approximately 1,000 of these belts in circulation in the United States. Amnesty International, Stopping the Torture Trade 29 (2001).

Two nine-volt batteries connected to prongs that are attached to the wearer over the left kidney region power the belt. Julie Brienza, Stun Belts Zapped by Civil Liberties Groups, 35 Trial 99, 100 (Apr. 1999); Dahlberg, supra, at 247. The belt may be activated from as far away as 300 feet, and once activated it delivers an eight-second, 50,000-volt shock that cannot be stopped. Amnesty International, supra, at 28; Brienza, supra, at 100; Dahlberg, supra, at 247. This high-pulsed electrical current travels through the body along blood channels and nerve pathways. Dahlberg, supra, at 247-48. The belt's electrical emission knocks down most of its victims, causing them to shake uncontrollably and remain incapacitated for up to forty-five minutes. Dahlberg, supra, at 248; Colorado v. Melanson, 937 P.2d 826, 835 (Colo.Ct.App.1996). Activation may also cause immediate and uncontrolled defecation and urination, and the belt's metal prongs may leave welts on the wearer's skin requiring as long as six months to heal. Dahlberg, supra, at 249. Activation may cause some wearers to suffer heartbeat irregularities or seizures. Dahlberg, supra, at 250-52. Manufacturers of the stun belt emphasize that the belt relies on the continuous fear of what might happen if the belt is activated for its effectiveness. Amnesty International, supra, at 29.

In Hawkins v. Comparet-Cassani, 33 F.Supp.2d 1244 (C.D.Cal.1999), a defendant who had a stun belt placed on him prior to a sentencing hearing and later activated at the judge's order filed a civil rights action against the county, judge, sheriff, and others. The defendant sought, among other things, a preliminary injunction against the Los Angeles County Sheriff's Department preventing the placement and activation of stun belts on defendants pending the outcome of trial. In response to this request, the trial judge in the United States District Court for the Central District of California observed:

The stun belt, even if not activated, has the potential of compromising the defense. It has a chilling effect. It is inherently difficult to define in a particular judicial proceeding the boundary between permissible and impermissible conduct-the boundary between aggressive advocacy and a breach of order. An individual wearing a stun belt may not engage in permissible conduct because of the fear of being subjected to the pain of a 50,000 volt jolt of electricity. For example, a defendant may be reluctant to object or question the logic of a ruling-matters that a defendant has every right to do. A defendant's ability to participate in his own defense is one of the cornerstones of our judicial system. A pain infliction device that has the potential to compromise an individual's ability to participate in his or her own defense does not belong in a court of law.

Further, if the defendant is shocked by the stun belt, the defense is likely to be even more compromised. First, it is unreasonable to expect a defendant to meaningfully participate in the proceeding following a shock. Second, having been shocked for a particular conduct the defendant may presume that other conduct, even if appropriate, may result in other shocks. Id. at 1262. Finding a likelihood of success on the merits at trial, the trial judge granted a preliminary injunction prohibiting the Los Angeles County Sheriff's Department “to either place or activate a stun belt on a prisoner in his custody pending the outcome of trial.” Id.

Although not all courts have taken this stance,FN4 we agree with the observations of the federal court judge and thus hold that henceforth stun belts may not be used on defendants in the courtrooms of this State. This is so because we believe that the other forms of restraint listed above can do the job without inflicting the mental anguish that results from simply wearing the stun belt and the physical pain that results if the belt is activated. This, however, does not mean Wrinkles is entitled to relief.

FN4. See, e.g., Young v. Georgia, 269 Ga. 478, 499 S.E.2d 60, 61 (1998) (holding that use of an electronic security measure is permissible where it is shielded from view and defendant is not harmed by its use). Hollaway v. Nevada, 6 P.3d 987, 994 (Nev.2000) (noting that although stun belts are okay in some instances, reversal of the death sentence in this case was necessary because the accidental activation of the stun belt “reinforce[d] the image of [the defendant] as an extremely violent man with whom authorities had to take exceptional security precautions.”).

Before trial began, the trial court informed counsel that Wrinkles would have to wear either shackles or a stun belt during trial. P-C R. at 1139, 1326. Without objection counsel chose a stun belt, and Wrinkles claims they rendered ineffective assistance as a result. We disagree. Although with this opinion we declare that stun belts no longer have a place in Indiana courtrooms, that was not the case at the time of Wrinkles' trial.FN5 Our prohibition is motivated primarily by the potential effect a stun belt may have upon the person wearing the device. However, without the benefit of this declaration, counsel were concerned about the effect on the jurors if they were to observe their client wearing a particular device. Counsel believed that the chance of the jury seeing the shackles was fairly high. P-C R. at 1139. On the other hand, counsel opted for the stun belt because they thought the jurors would not be able to see it. P-C R. at 1139. Obviously, they were later proven wrong. However, at the time the decision was made, it was a prudent one. “Tactical choices by trial counsel do not establish ineffective assistance of counsel even though such choices may be subject to criticism or the choice ultimately prove[s] detrimental to the defendant.” Garrett v. State, 602 N.E.2d 139, 142 (Ind.1992). Rather, “[c]ounsel is afforded considerable discretion in choosing strategy and tactics, and we will accord that decision deference.” Conner, 711 N.E.2d at 1248. Wrinkles has not demonstrated that counsels' strategic decision in choosing a stun belt as opposed to shackles rises to the level of ineffective assistance of counsel.

FN5. For example, in Flowers v. State, 738 N.E.2d 1051 (Ind.2000), reh'g denied, the defendant threatened the trial judge. After conducting a hearing, the judge ordered the defendant to wear a stun belt for the remainder of the trial. The defendant subsequently filed motions for change of judge and mistrial on grounds that the trial court was biased and prejudiced as evidenced by the stun belt. On direct appeal, we found that the trial court was not biased or prejudiced in ordering the defendant to wear the stun belt because of the concern for courtroom safety. Id. at 1061. The defendant did not challenge, and we did not address, the issues raised in the instant appeal.

As for counsels' failure to object to the trial court's order, it is error for a trial court to require a defendant appearing before the court to wear restraints as a matter of course. Rather, the restraints must be necessary, and the reasons supporting the trial court's determination must be placed on the record. Coates, 487 N.E.2d at 169. Nonetheless, the record reflects that the trial court apparently has a policy of requiring defendants to wear restraints regardless of whether they have previously exhibited any conduct justifying restraints. P-C R. 1139-40. Attorney Danks testified at the post-conviction hearing that neither he nor attorney Vowels objected to the trial court's order because the trial judge would have ordered Wrinkles to wear shackles instead. P-C R. at 1139-40. Thus, even though the trial court's policy would not likely withstand appellate scrutiny if the issue were presented, it is apparent that at least at the time of Wrinkles' trial, an objection to wearing restraints would not have been sustained by the trial judge even if made. Accordingly, Wrinkles has not sustained his burden of demonstrating that counsels' performance on this issue fell below an objective standard of reasonableness.

(2) Victim Impact Statement

The Pre-sentence Investigation Report contained a statement from Mae McIntire recommending that Wrinkles receive the death penalty. FN6 McIntire had been responsible for raising Wrinkles' wife Debbie and her brother Mark. Wrinkles contends counsel should have objected to this statement because it violated Bivins, which provides that victim impact evidence can only be admitted in death penalty cases if it is relevant to an aggravating or mitigating circumstance. See Bivins, 642 N.E.2d at 957. Assuming counsel should have objected to this statement on the ground that it is not relevant to the multiple murder aggravator, which is the charged aggravator in this case, Wrinkles has not shown that the trial court even relied on this statement in imposing the death penalty. In fact, the trial court did not mention this statement in either its sentencing statement or its sentencing order. R. at 399-403, 3372-80. Further, the evidence supporting the multiple murder aggravator is strong in that Wrinkles confessed to shooting all three victims. See Bivins, 642 N.E.2d at 957 (holding that admission of improper victim impact evidence was harmless beyond a reasonable doubt in part because of “the strong evidence of the charged aggravating circumstance....”). The post-conviction court did not err in concluding that counsel were not ineffective for failing to object to Mae McIntire's statement.

FN6. The victim impact statement states in part: Mrs. McIntire feels that the defendant should receive the death penalty. She reports that Lindsay, the defendant's [daughter,] [h]as said she does not feel her father should be put to death but she did not ever want to see him again. The defendant's son has made no comments con[c]erning this sentence. Mrs. McIntire stated that he has shown no remorse and that neither should the Court. R. at 256.

(3) Wrinkles' Prior Bad Acts

The State introduced evidence through two witnesses of Wrinkles' aggressive behavior toward his wife.FN7 Counsel lodged no objections to this testimony. Wrinkles contends that “[o]bjections to any of this testimony would have been sustained because it was inadmissible” and that he was prejudiced because “[the testimony] made him appear violent and dangerous.” Br. of Appellant at 31. The State counters that this testimony was admissible to show Wrinkles' motive and that he was not prejudiced in light of the facts of the shootings-Wrinkles donned himself in camouflage, cut the phone lines, and shot his wife, brother-in-law, and sister-in-law in the presence of children.

FN7. Wrinkles points to the following testimony. Steve Culley, Debbie's divorce attorney, testified that Wrinkles made “harassing” phone calls to the Fulkerson home while Debbie was staying there and that Wrinkles “was concerned that the Prosecutor may be pressing charges and putting him in jail [for those calls because of the protective order that was in place at the time]....” R. at 2248.

David Plemmons, Wrinkles' friend, testified that in May 1994, two months before the shootings, Wrinkles and Debbie got into an argument; Wrinkles retrieved a gun, cocked it, and pointed it at Debbie; Debbie grabbed the gun in defense, and it discharged; a neighbor called police; and when police arrived he and Debbie covered for Wrinkles. R. at 3097-98. When asked on cross-examination if he recalled this incident, Wrinkles responded, “Not really.” R. at 2737. When asked if he denied that the incident happened, Wrinkles responded, “I don't remember it.” R. at 2738.

Although evidence of other crimes, wrongs, or acts is not admissible to show action in conformity therewith, such evidence may be admissible for other purposes, such as motive. Evid.R. 404(b); see also Cook v. State, 734 N.E.2d 563, 567 (Ind.2000) (“[E]vidence of motive is always relevant in the proof of a crime.”), reh'g denied; Charlton v. State, 702 N.E.2d 1045, 1050 (Ind.1998) (finding evidence of a protective order relevant to show the hostile relationship that existed between the defendant and the victim in order to prove motive for the murder and not unduly prejudicial because of the other “damaging” evidence against the defendant). Accordingly, Wrinkles has failed to prove that an objection to such testimony would have been sustained if made. Further, in light of the fact that Wrinkles admitted shooting Debbie, Mark, and Natalie, he has failed to show prejudice. The post-conviction court did not err in concluding that counsel were not ineffective for failing to object to this testimony.

(4) Prosecutor's Comments during Closing Argument

During summation the prosecutor referred to Wrinkles as a “psychopath” and “sociopathic.” FN8 Wrinkles contends counsel should have objected because “[t]here was no evidence to support the prosecutor's labels” and “[t]hese comments could only be meant to inflame the passions or prejudices of the jury.” Br. of Appellant at 32 (quotation omitted).

FN8. The prosecutor stated: So, the only way [Wrinkles] can avail himself of [Voluntary] Manslaughter is if he is an ordinary man-a reasonable man, an average man; although you can decide what ordinary means. In other words, psychopaths, like Eric Wrinkles, don't get the benefit of [Voluntary] Manslaughter. Just because they're sociopathic doesn't mean they can have these feelings that it's okay to kill someone and therefore it's sudden heat. R. at 3172.

Wrinkles has not shown that an objection to the prosecutor's comments would have been sustained if made. There was testimony introduced at trial that Wrinkles had been diagnosed as suffering from at least five mental illnesses. R. at 2994-96. Under those circumstances the comments of the prosecutor were fair characterizations of the evidence. See Miller v. State, 623 N.E.2d 403, 408 (Ind.1993) (finding no error where the prosecutor called the defendant a disparaging name because he was merely commenting on the evidence). Further, counsel may have had a strategic reason for not objecting, such as that an objection would have called even more attention to the prosecutor's remarks. See Charlton, 702 N.E.2d at 1051-52 (holding that counsel was not ineffective for failing to object to the prosecutor's closing argument because counsel could have made a strategic decision not to object). The post-conviction court did not err in concluding that counsel were not ineffective for failing to object to the prosecutor's remarks in closing argument.

(5) Debbie White's Testimony

Although she was not listed as a State's witness, Debbie White, a bookkeeper at Goldman's Pawn Shop, testified without objection that Mark pawned two shotguns in May 1994. R. at 2498-99. This was the substance of her entire testimony. Counsel then briefly cross-examined her. R. at 2501-02. Wrinkles contends that counsel were ineffective for failing to object because “[h]er testimony undermined the defense theory that the Fulkerson's house was heavily armed.” Br. of Appellant at 33. Although had counsel objected, the trial court should have granted either a continuance or an adjournment to allow counsel to depose the witness, see Craig v. State, 737 N.E.2d 442, 444 (Ind.Ct.App.2000), Wrinkles has failed to establish prejudice because he has not shown that counsel would have questioned her differently had she been deposed or a continuance granted. The post-conviction court did not err in concluding that counsel were not ineffective for failing to object to Debbie White's testimony.

(6) Mishandling of the Murder Weapon

When Officer James VanCleave recovered the murder weapon, a .357 magnum revolver, it appeared to be functioning. However, Sergeant Edward Wessel testified at trial that the weapon was inoperable when he received it for testing and that it took him thirty to forty-five minutes to repair it. R. at 2431, 2477. Wrinkles alleges that the State “mishandled” the weapon while in its possession and that counsel were ineffective for failing to object to its admission because “it was not in substantially the same condition as at the time of the crime.” Br. of Appellant at 33 (quotation omitted).

Wrinkles has failed to prove that an objection would have been sustained if made because the weapon was operable when admitted into evidence and Sergeant Wessel, after repairing the weapon, was able to determine that eleven bullets recovered from the crime scene and the victims' bodies were fired by the weapon. R. at 2433-34. Further, Wrinkles has not shown prejudice in that he admitted firing the weapon. R. at 2753. The post-conviction court did not err in concluding that counsel were not ineffective for failing to object to the admission of the murder weapon.

D. Failure to Tender Jury Instruction on Life Without Parole

Wrinkles argued before the post-conviction court that counsel were ineffective for failing to tender a jury instruction on life without parole. Indiana Code section 35-50-2-9(d) requires a trial court in a capital case to instruct the jury on the statutory penalties for murder: death, life without parole, or a term of years. Although the trial court failed to give such an instruction, we held on direct appeal that the error was not reversible. Wrinkles, 690 N.E.2d at 1171. Having reached that conclusion, we also conclude that for the same reasons, counsel did not render ineffective assistance. See Douglas v. State, 634 N.E.2d 811, 821 (Ind.Ct.App.1994) (holding that if there is no reversible error, then the prejudice prong of ineffective assistance of counsel is not met), trans. denied; see also Holleman v. State, 641 N.E.2d 638, 641 (Ind.Ct.App.1994) (holding that absent a showing of any reversible error at trial, the defendant could not establish on post-conviction that counsel was ineffective), trans. denied.

E. Inadequate Penalty Phase Investigation and Presentation

Before the post-conviction court, Wrinkles claimed ineffective assistance based on counsels' alleged inadequate investigation for the penalty phase of trial and insufficient presentation of evidence in mitigation of the death sentence. More specifically, Wrinkles argues that counsel “failed to investigate and present the impact of [his] drug addiction on his mental health, as well as other aspects of his background and personality.” Br. of Appellant at 47. He claims that if such evidence had been presented during the penalty phase, the jury would have sentenced him to a term of years rather than death.

The record shows that before the penalty phase of trial began on May 20, 1995, the trial court incorporated the evidence from the guilt phase of trial. R. at 3193. Counsel specifically requested that Dr. Engum's guilt phase testimony and report be incorporated. R. at 3230. On May 19, 1995, just one day before the penalty phase, Dr. Engum testified in depth about Wrinkles' various mental illnesses, one of which was “amphetamine dependence, with the likelihood of amphetamine-induced psychotic disorder with delusions, which is basically saying he bec[a]me increasingly paranoid when he would abuse the methamphetamine.” R. at 2994-95. Dr. Engum then explained the effects of Wrinkles' amphetamine dependence on his behavior. R. at 2995.

Despite this incorporated testimony, Wrinkles argues that counsel should have called an expert during the penalty phase who could “have explained to the jury how dangerously addictive methamphetamine is and how addicts become violent and paranoid.” Br. of Appellant at 55. However, Dr. Engum testified during the guilt phase to just that-“a pretty typical trait of severe methamphetamine abuse [is that the individual] become[s] increasingly aggressive, angry, hostile; in some cases, violent aggressive, but highly paranoid.” R. at 2995. When mitigating evidence has already been presented at the guilt phase of trial, counsel's failure to duplicate this evidence during the penalty phase of trial does not constitute deficient performance. Wisehart v. State, 693 N.E.2d 23, 48 (Ind.1998); see also I.C. § 35-50-2-9(d) (providing that the jury “may consider all the evidence introduced at the trial stage of the proceedings [during the penalty phase].”); Benefiel v. State, 716 N.E.2d 906, 913 (Ind.1999) (“While hearing the same testimony again at the penalty phase might have reinforced the idea that the mental disease discussed during the guilt phase could have mitigating weight, we cannot say that the failure to reintroduce the testimony created a reasonable probability that the jury would have recommended against death.”), cert. denied, 531 U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000).

Wrinkles' real argument seems to be that counsel should have called an additional expert, such as Dr. Evans or Dr. Smith, during the penalty phase to further explore his methamphetamine addiction. Attorney Vowels testified at the post-conviction hearing that he did not want to dwell on Wrinkles' methamphetamine addiction during the penalty phase because he did not want Wrinkles to appear as a “heavy doper.” P-C R. at 1327. This was a strategy decision that we will not second-guess. See Lambert, 743 N.E.2d at 743 (holding that it was reasonable for counsel to emphasize the defendant's character during the penalty phase instead of relying on complicated mental health issues); Timberlake, 690 N.E.2d at 261 (“As a matter of trial strategy, a defense counsel in a capital case may decide what is the best argument to present during the penalty phase. After an investigation into potentially mitigating evidence, a defense counsel may decide that it would be better for his client not to argue, as mitigation evidence, defendant's background history such as a history of drug abuse and a bad family life.”) (citations omitted); Hayes v. Lockhart, 852 F.2d 339, 352 (8th Cir.1988) (observing that counsel's decision not to present additional mitigating evidence regarding defendant's drinking problem was a “reasonable trial tactic, one that was based upon counsel's calculated assessment that the risk of probable harm exceeded the possible benefit that might have resulted....”), judgment vacated on other grounds, 491 U.S. 902, 109 S.Ct. 3181, 105 L.Ed.2d 691 (1989).

Wrinkles' next contention concerns evidence of his background and personality. During the penalty phase of trial, counsel called Steven Brock, a sentencing consultant and mitigation specialist who, before testifying, interviewed approximately forty people including Wrinkles and his family, friends, and customers. R. at 3231, 3237. He also reviewed Wrinkles' medical and educational records, depositions conducted in the case, and Dr. Engum's report. R. at 3240. Brock testified in great detail about Wrinkles' early years, particularly that he grew up in a troubled home with an alcoholic father who physically and verbally abused his wife and children. R. at 3243-47. Brock also identified other mitigators: Wrinkles' lack of significant criminal history, R. at 3249; he was under extreme mental and emotional disturbance when he committed the murders, R. at 3249; his capacity to appreciate the criminality of his conduct and to conform his conduct to the law was substantially impaired as a result of mental disease or defect, R. at 3249-50; he has a psychological profile as put forth by Dr. Engum as a paranoid individual who sees conspiracies everywhere, R. at 3251; and his daughter Lindsay Wrinkles and the guardians of the Wrinkles and Fulkerson children did not want him executed, R. at 3259.FN9

FN9. In addition to Brock, counsel called Mary Winnecke, Carolyn Casper, and Lindsay Wrinkles at the penalty phase. Mary Winnecke, Natalie Fulkerson's mother and the legal guardian of the Fulkerson children, testified during the penalty phase of trial that Wrinkles had been under the influence of drugs for the last five years and that he thought there was a conspiracy to get him. R. at 3205, 3206. Winnecke testified further that she did not think Wrinkles should be sentenced to death because she is religiously opposed to such punishment. R. at 3208-09. Carolyn Casper, the legal guardian of the Wrinkles children, testified during the penalty phase of trial that she did not want Wrinkles to receive the death penalty because of the adverse effect it would have on the children. R. at 3218-19. Lindsay, Wrinkles' daughter, also testified during the penalty phase of trial that she did not want her father to receive the death penalty. R. at 3229.

In this appeal, Wrinkles challenges Brock's testimony on two grounds. First, he argues that allowing Brock to testify instead of his family, friends, and customers gave the impression “that Wrinkles had no one who cared about him and had to pay someone to testify on his behalf.” Br. of Appellant at 48. However, this was a tactical decision that we will not second-guess. See Wisehart, 693 N.E.2d at 48 n. 26 (“[W]hich witnesses to call is the epitome of a strategic decision.”) (quotation omitted).

Next, Wrinkles argues that Brock left out important information in his summary. For example, Wrinkles points to the following post-conviction witnesses: his mother and brother gave examples of the abuse he received as a child from his alcoholic father; his friends testified that he abused drugs and had not been acting like himself weeks before the murders; and his customers testified that he was a good mechanic who went out of his way for them. However, Wrinkles' family testified to the same events at the post-conviction hearing that Brock testified to during the penalty phase of trial. Compare P-C R. at 378-88, 389-98 with R. at 3244-46. Therefore, their testimony would have been cumulative to Brock's testimony. Further, Wrinkles' drug use was presented during the guilt phase through four lay witnesses, one expert witness, and Wrinkles himself. R. at 2711-12, 2715, 2720, 2722-23, 2834, 2843, 2861-62, 2931-32, 2935-37, 2994-97, 3002, 3006-07. See Wisehart, 693 N.E.2d at 48 (“[W]hen mitigating evidence has already been presented, the failure of counsel to duplicate during the penalty phase the mitigating evidence presented to the jury during the guilt phase does not constitute deficient performance.”). Finally, as far as Wrinkles' customers are concerned, counsel could have made a decision not to call them because they possibly would have been exposed to Wrinkles' bad acts on cross-examination. This was a strategy call that we will not second-guess. See Brown v. State, 691 N.E.2d 438, 447 (Ind.1998) (identifying that “[a] decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess....”). The post-conviction court did not err in concluding that counsel were not ineffective on these grounds.

F. Failure to Present Mitigating Evidence During The Sentencing Phase

Wrinkles argues the post-conviction court erred when it refused to conclude that counsel were ineffective based on their alleged failure to present evidence during the sentencing phase of trial supporting a sentence other than death. Contrary to Wrinkles' claim, the record shows that counsel prepared a thorough and detailed forty-page sentencing memorandum and attorney Danks made an oral argument to the trial court on why the court should not impose the death penalty. R. at 267-307, 3362, 3368-70.

The record also shows that during the penalty phase of trial counsel presented evidence concerning Wrinkles' drug use, personality, and social history. To the extent Wrinkles argues that counsel should have presented the evidence anew during the sentencing phase of trial, he is mistaken. Where counsel has already presented mitigating evidence during the guilt phase of trial and discussed it during the penalty phase, presenting the evidence again during the judge sentencing phase of trial is cumulative. Wisehart, 693 N.E.2d at 49. We find no error on this issue.

G. Indiana Criminal Rule 24 Violation

For his last allegation concerning ineffective assistance of trial counsel, Wrinkles argued before the post-conviction court that counsel acted deficiently because throughout his representation each lawyer carried a felony caseload far in excess of that permitted under Indiana Criminal Rule 24(B)(3). The Rule provides in pertinent part: “[a]ppointed counsel shall not accept workloads which, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations.” Id. Salaried or contractual public defenders can only be appointed as trial counsel in capital cases if: (i) the public defender's caseload will not exceed twenty (20) open felony cases while the capital case is pending in the trial court; (ii) no new cases will be assigned to the public defender within thirty (30) days of the trial setting in the capital case; (iii) none of the public defender's cases will be set for trial within fifteen (15) days of the trial setting in the capital case; and (iv) compensation is provided as specified in paragraph (C). Ind.Crim. Rule 24(B)(3)(c).

Although attorney Danks was in compliance with subsection (B)(3)(c)(i) of Rule 24 when he was appointed lead counsel on July 21, 1994, he was out of compliance a month later. When attorney Vowels was appointed co-counsel on July 28, 1994, his inventory of public defender cases totaled forty-two open felony cases, more than twice the maximum permitted. At one point attorney Danks' felony caseload reached thirty-three while attorney Vowels' felony caseload reached fifty-six. In February 1995, just three months before Wrinkles' trial began, attorney Vowels finally asked the trial court to remove him from some cases so he could devote more time to Wrinkles' case. P-C R. at 575. The trial court subsequently removed attorney Danks from four cases and attorney Vowels from seven cases. P-C R. at 575. However, because lawyers Danks and Vowels did not inform the trial court exactly how many felony cases were in their inventory or how far they were over the twenty-case limit, see P-C R. at 1186, 1231, these removals still did not put them in compliance with subsection (B)(3)(c)(i). Also, in addition to their public defender felony caseloads, both attorneys maintained substantial private practices, and the record is silent on the number of additional private felony cases that counsel carried during their representation of Wrinkles.

Further, the caseloads of lawyers Danks and Vowels violated subsection (B)(3)(c)(ii) of Rule 24, which prohibits the assignment of new cases to the public defender within thirty days of a capital trial. Attorney Danks was assigned two public defender cases within thirty days of Wrinkles' trial, and attorney Vowels was assigned five public defender cases within thirty days of Wrinkles' trial. Attorney Vowels' caseload also violated subsection (B)(3)(c)(iii) of Rule 24, which specifies that none of the public defender's cases may be set for trial within fifteen days of the capital trial. Attorney Vowels represented Bruce Anthony at trial on a felony battery charge on May 3, 1995, just eight days before voir dire in Wrinkles' case.

Wrinkles contends the foregoing Criminal Rule 24 violations created an actual conflict of interest, violated his equal protection and due process rights, and represented ineffective assistance of counsel per se. According to Wrinkles, a new trial is warranted. We recently addressed the remedy for a violation of Criminal Rule 24 in Prowell. In that case, the trial court appointed lawyers Danks and Vowels, the same attorneys as here, to represent Vincent Prowell in a capital case. Attorney Vowels carried a felony caseload in violation of Criminal Rule 24 throughout his representation of Prowell. We determined that the remedy for a Criminal Rule 24 violation is the withholding of fees and expenses. More specifically, we observed that the State may refuse to compensate a county for attorneys' fees and expenses where a defense attorney is found to be in violation of the caseload limits prescribed by the rule without the court's permission. Prowell, 741 N.E.2d at 716. “Presumably, the county would then penalize the lawyer who violated the rule by withholding payment for time spent on cases where the rule was violated. Experience suggests that lawyers are likely to observe rules if their paychecks depend on it.” Id. We also noted that trial courts are not expected “to police sua sponte the caseloads of the counsel appearing before them. It is incumbent upon defense counsel to raise any issue presented by counsel's workload in excess of the limits laid out in the rule.” Id.

Pointing out that both lawyers in this case violated Criminal Rule 24, Wrinkles suggests that the “paycheck” remedy is not sufficient in this case and insists that he is entitled to a new trial. According to Wrinkles, counsel rendered ineffective assistance precisely because they were in non-compliance with Criminal Rule 24. We disagree. The record shows otherwise. Attorney Danks testified at the post-conviction hearing that his caseload did not allow him adequate time to prepare for Wrinkles' trial. P-C R. at 920. However, he also testified that he never had enough time to prepare for any trial, not just this one. P-C R. at 1147, 1175. Attorney Danks testified further that this lack of time did not interfere with any legal research or interviewing of witnesses. P-C R. at 921. Attorney Vowels testified at the post-conviction hearing that he had enough time to prepare for Wrinkles' trial. P-C R. at 1325.

The record shows that in preparation for trial both lawyers engaged in the following activities: met regularly to discuss the direction and progress of the case, P-C R. at 1207, 1208, 1317; met with Wrinkles several times before trial, P-C R. at 1162-68, 1296-1310; interviewed witnesses, P-C R. at 568, 1171-72, 1316; consulted numerous times with trial investigator Mark Mabrey, sentencing consultant and mitigation specialist Steven Brock, and neuropsychologist Dr. Eric Engum, P-C R. at 567, 1318, 1321, 2396-97; consulted other experts including Paula Sites, P-C R. at 1297, 1304, 1305, 1307; sought discovery and filed multiple pretrial motions, R. at 29-30, 34-37, 39-40, 42-43; P-C R. at 567, 1313; prepared and filed briefs in support of various motions, R. at 47-94; prepared witnesses for trial, P-C R. at 1043, 1044, 1203, 1204; deposed approximately thirty potential witnesses, P-C R. 1165-66, 1200, 1305-06, 1308; visited the crime scene, P-C R. at 1199, 1322; viewed videotapes and pictures of the crime scene, P-C R. at 1322; and read the police and autopsy reports, P-C R. at 1200-01, 1322.

Attorney Danks' billing records reflect that he spent 319 hours on Wrinkles' case, and attorney Vowels' billing records show that he spent 401 hours on Wrinkles' case. P-C R. at 1177, 1302, 1310. Both attorneys testified at the post-conviction hearing that they spent more time on Wrinkles' case than they actually billed for. Norman Lefstein, Dean and Professor of Law at Indiana University School of Law-Indianapolis, testified as an expert on ineffective assistance of counsel and noted that the average time spent on a capital case that goes to jury trial through completion is 1,000 hours for two attorneys. P-C R. at 1702. He testified that that number varies depending on the complexity of the case. P-C R. at 1702. Here, lawyers Danks and Vowels spent more than 720 hours on a capital case in which the defendant confessed. We cannot conclude that the post-conviction court erred in its determination that counsel were not ineffective based solely on their non-compliance with Criminal Rule 24.

II. Ineffective Assistance of Appellate Counsel

The standard of review for a claim of ineffective assistance of appellate counsel is the same as for trial counsel; that is, the defendant must show that appellate counsel was deficient in his performance and that this deficiency resulted in prejudice. Ben-Yisrayl, 729 N.E.2d at 106. This Court has recognized three types of ineffective assistance of appellate counsel claims, namely: (1) counsel denied the defendant access to appeal; (2) counsel waived issues; and (3) counsel failed to present issues well. Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind.1997). As Wrinkles concedes, the second category is the only category applicable here. This category will lead to a finding of deficient performance only when the reviewing court determines that the omitted issues were significant, obvious, and “clearly stronger than those presented.” Id. at 194 (quotation omitted). This is because “the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel.” Id. at 193 (quotation omitted).

Wrinkles contends that the post-conviction court erred in its conclusion that his appellate counsel were not ineffective for not raising the following issues on direct appeal: (1) the trial court committed fundamental error in admitting evidence of Wrinkles' prior bad acts; (2) the trial court committed fundamental error when it considered a victim impact statement which was contained in the Pre-sentence Investigation Report; and (3) the trial court committed fundamental error by not giving an instruction on life without parole. We addressed issues (1) and (2) in the context of ineffective assistance of trial counsel and concluded that trial counsel were not ineffective for failing to object to evidence of Wrinkles' aggressive behavior toward Debbie and the victim impact statement. Therefore, the post-conviction court did not err in concluding that appellate counsel were not ineffective for failing to raise these issues on direct appeal. See Woods v. State, 701 N.E.2d 1208, 1221 (Ind.1998) (“[I]neffective assistance of appellate counsel requires the petitioner to overcome the double presumption of attorney competence at both trial and appellate levels.”). As for (3), counsel raised, and we addressed, this issue on direct appeal. See Wrinkles, 690 N.E.2d at 1171. Again, the post-conviction court did not err in concluding that Wrinkles did not receive ineffective assistance of appellate counsel.

Conclusion

Wrinkles has failed to prove that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Accordingly, we affirm the post-conviction court's denial of Wrinkles' petition for post-conviction relief.

SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.

BOEHM, J., concurs in all parts except Part I.C.1 in which he concurs in result with separate opinion.

I concur in all parts of the majority opinion except Part I.C.1, in which the majority categorically prohibits use of the “stun belt” in Indiana courtrooms. I generally agree with the points the majority makes about the use of the belt, and I certainly agree that trial court findings are required before any form of courtroom restraint is to be used. However, trial courts are often faced with hard choices. It is not at all clear to me that the belt is a less desirable alternative to restraints that are plainly visible and convey to the jury the message that the defendant cannot be trusted to comport himself in a manner consistent with courtroom decorum. Indeed, I would think some defendants might, as did Wrinkles in this case, prefer the belt to a gag or more visible restraints. The majority is surely correct that any of these alternatives is to be used only where necessary and where supported by appropriate findings. But where some form of restraint is to be used, I would not categorically prohibit the belt in favor of others that may be even more hostile to a fair trial.

I concur in the majority's view that Wrinkles has not shown ineffective assistance of counsel for failure to object to the use of the belt. Trial counsel here were faced with a very difficult guilt phase, to say the least. Conviction seems to me to have been virtually a foregone conclusion, with the penalty being the only realistic battleground for defense counsel. To decide not to take issue with the trial judge on this issue would seem to me to be well within the sort of judgment that lawyers are forced to make. Accordingly, I concur in the result reached by the majority.

Wrinkles v. State, 776 N.E.2d 905 (Ind. 2002) (Successive Postconviction)

In proceedings following his conviction of murder and receipt of death sentence, 690 N.E.2d 1156, and denial of his first petition for post-conviction relief, 749 N.E.2d 1179, petitioner sought permission to file successive state court post-conviction petition. The Supreme Court held that: (1) petitioner's trial jury necessarily determined fact of multiple-murder special circumstance beyond reasonable doubt; (2) claims available below were waived; (3) claim of ineffective assistance of first post-conviction counsel presented no cognizable grounds for relief; (4) any erroneous reference by trial prosecutor to uncharged aggravating circumstance was harmless; and (5) petitioner failed to establish viable claim of systematic exclusion of African-Americans from his original venire. Request denied.

Wrinkles v. Buss, 537 F.3d 804 (7th Cir. 2008) (Habeas)

Background: Following affirmance on appeal of prisoner's state convictions for murder and imposition of the death penalty, 690 N.E.2d 1156, prisoner filed petition for writ of habeas corpus. The United States District Court for the Southern District of Indiana, John Daniel Tinder, J., denied petition, and appeal was taken.

Holdings: The Court of Appeals, Kanne, Circuit Judge, held that: (1) petitioner procedurally defaulted claim that his rights to a fair trial were violated when he was required to wear a stun belt without a hearing; and (2) trial counsel's failure to object to stun belt was deficient assistance of counsel; but (3) petitioner was not prejudiced by that failure, as required element of ineffective assistance to overcome his procedural default. Affirmed.

KANNE, Circuit Judge.

This case is before the court on collateral review. In 1995, a Vanderburgh County, Indiana, Circuit Court jury convicted Matthew Wrinkles of murdering his wife, his wife's brother, and his sister-in-law. The jury recommended and Judge Richard L. Young imposed a death sentence. Wrinkles unsuccessfully appealed his conviction and sentence to the Indiana Supreme Court, and thereafter, Judge Carl Heldt of the Vanderburgh Circuit Court denied his request for post-conviction relief. Wrinkles then filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254, in the United States District Court for the Southern District of Indiana. Wrinkles argued that his constitutional rights were violated during the trial and sentencing proceedings because, pursuant to the Indiana trial judge's blanket policy of restraint, he was required to wear a stun belt that he alleges was visible to the jury.

Wrinkles was barred from raising a direct challenge to the constitutionality of the stun belt because he procedurally defaulted the claim in state court. Wrinkles instead claimed that he received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because his counsel failed to object to the imposition of the stun-belt restraint. With respect to the prejudice prong of Strickland, Wrinkles claimed that the jurors saw the stun belt, and that he presumptively suffered prejudice as a result. United States District Judge, John Daniel Tinder, concluded that Wrinkles could not demonstrate prejudice because the jury was not aware of the stun belt.

Wrinkles's habeas claim hinges on whether the jurors saw the stun belt during the trial and the sentencing proceedings. One passage in the Indiana Supreme Court's opinion-actually, one sentence-complicates our review. We ultimately conclude that the Indiana Supreme Court made no factual finding regarding the belt's visibility. The last state-court decision on point-the post-conviction court decision-holds that the jurors did not see the belt. We defer to that finding and agree with the district court that Wrinkles suffered no prejudice from his counsels' failure to object to the stun belt.

I. History

A. Factual history

By the spring of 1994, the marriage of Matthew and Debbie Wrinkles was coming to an end. On May 3, 1994, police were dispatched to the Wrinkles' home in response to a report of gunfire. Wrinkles told the responding officers that he and Debbie were having financial and marital problems and that he would kill Debbie if she ever left him. David Plemmons, a witness to the events, would later testify that Wrinkles pointed a gun at Debbie during the argument and the gun discharged when Debbie grabbed it. According to Plemmons, Wrinkles hid the gun when the police arrived, and Debbie and Plemmons “covered” for Wrinkles by lying to the police about the incident. The Indiana Supreme Court later characterized the Wrinkles' relationship as “stormy and often violent.” Wrinkles v. State, 690 N.E.2d 1156, 1159 (Ind.1997) (“ Wrinkles I”), cert. denied, 525 U.S. 861, 119 S.Ct. 148, 142 L.Ed.2d 121 (1998).

In June 1994, Debbie moved herself and the children-Lindsay, age thirteen, and Seth, age eight-to the home of Mark and Natalie Fulkerson, Debbie's brother and sister-in-law. This move marked the end of Wrinkles and Debbie's marriage, and Debbie filed for divorce on June 30. A few weeks later, on July 20, Wrinkles and Debbie attended a provisional divorce hearing, during which it was decided that Debbie would have custody of the children and Wrinkles would have visitation rights. Wrinkles and Debbie agreed to a meet at a fast-food restaurant later that day so that Wrinkles could see his children. But Debbie did not show that afternoon as scheduled.

Wrinkles had hit a low point in his life. He had a close relationship with his children and he believed that his estranged wife and her family were conspiring to deny him access to the children. In addition to his marital problems, the automotive-repair business that he ran out of his garage was failing. Several zoning complaints had been made against his business and he was forced to shut down. Wrinkles had also been dependent on methamphetamine for some time, and this dependence caused him to become easily agitated and paranoid. In addition to his mental and emotional decay, his drug use caused him to wither away physically. Wrinkles's addiction kept him from sleeping, except sporadically, and he lost sixty pounds in a three-month period.

Wrinkles's obvious decline had begun to terrify Debbie. Her friend would testify at trial that Debbie had become a “nervous wreck.” Id. at 1159. She had begun to take “medication [and] every time she heard a noise she would jump cause she was scared. And ... she had to sleep with a gun underneath her pillow [because] she was scared” of Wrinkles.

Debbie's failure to appear with the children at the fast-food restaurant on July 20 set into motion a tragic series of events. Wrinkles called to complain to his divorce attorney, who told Wrinkles that nothing could be done until the next day because the courts had already closed. Wrinkles then called the Fulkerson home to speak with Debbie, but she was not there. Debbie returned Wrinkles's call later that evening, but she did not get an answer. Eventually, Debbie and the rest of the Fulkerson household turned in for the night on July 20. Given the growing tension in their lives, it was an uneasy rest; both Mark Fulkerson and Debbie had guns with them in their bedrooms.

Wrinkles drove to the Fulkerson home at approximately 2:00 a.m. on July 21, and parked his truck about one block from the home. He was wearing camouflage clothing, had painted his face, and was armed with a .357 magnum revolver and a knife. He climbed over a fence into the Fulkersons' backyard. He cut the telephone wires and kicked in the back door, entering the home.

Wrinkles went down the hallway and into the Fulkersons' bedroom, where he shot Mark Fulkerson four times, killing him in front of his three-year-old son, Matthew. Debbie was awakened by the gunshots. She grabbed her gun and ran to the hallway where she confronted Wrinkles. She fired and hit him in the arm, knocking herself down in the process. At that point, Lindsay Wrinkles had also awakened and had come upon the confrontation between her parents. She saw that her father was about to shoot her mother and she “pleaded, ‘Dad, please don't shoot Mom.’ ” Wrinkles v. State, 749 N.E.2d 1179, 1186 (Ind.2001) ( “ Wrinkles II”), cert. denied, 535 U.S. 1019, 122 S.Ct. 1610, 152 L.Ed.2d 624 (2002). Wrinkles responded by telling Lindsay to “shut up,” and then he promptly shot Debbie.

During the commotion, Natalie Fulkerson made her way to the living room and out the front door, in an attempt to flee. Wrinkles gave chase and caught Natalie on the front porch, shooting her in her face at close range. Natalie died on the porch. Wrinkles fled. The Fulkersons' ten-year-old daughter, Kimberly, and her 19-year-old cousin, Tracy, ran to neighbors' houses for help.

Wrinkles was arrested later that morning in a neighboring county and was charged with three counts of murder, pursuant to Ind.Code § 35-42-1-1(1), for knowingly killing his victims. The state filed notice of its intent to seek the death penalty on July 28, 1994. Under Indiana law, the state can seek the death penalty when a defendant commits multiple murders. Ind.Code § 35-50-2-9(b)(8).

B. Procedural history

Based on their pre-trial investigations, Wrinkles's attorneys' theory of his defense centered on the fact that, at the time of the crimes, Wrinkles was in the midst of a very difficult period in his life. The attorneys decided to stress the loss of Wrinkles's business, the break-up of his marriage, and his perception that Debbie and the Fulkersons were trying to keep his children from him. The defense argued that Wrinkles had broken into the Fulkersons' home with the intent of retrieving his children because he feared that he would never see them again-a paranoia magnified by his methamphetamine addiction. The paranoia was further enhanced when, according to Wrinkles, his victims confronted him with guns when he entered the home. Wrinkles also would cast Debbie as the aggressor in their confrontation in the hallway; he would testify that Debbie said, “Die, you bastard, die,” when she shot him. Wrinkles I, 690 N.E.2d at 1159.

This strategy was necessary given the facts of the case. First, there was no dispute that Wrinkles had shot the three victims, and therefore Wrinkles's motivation for the shootings would be the primary issue at trial. And Wrinkles's state of mind would likewise be a significant issue for sentencing in terms of whether the death penalty or a lesser sentence was appropriate. In addition, the attorneys concluded that although Wrinkles's mental state might impact his culpability and sentence, the facts did not support an insanity defense. A neuropsychologist enlisted by Wrinkles's attorneys concluded that, while Wrinkles suffered from a Mixed Personality Disorder and a Delusional Disorder that became more intense during the weeks leading up to the shootings, and while Wrinkles's judgment was substantially impaired at the time of the shootings, he was nonetheless sane because he had known what he was doing and was able to conform his conduct to the requirements of the law.

Before trial commenced, the trial judge informed Wrinkles's counsel that Wrinkles would have to wear some sort of restraining device-either shackles or a stun belt. The trial court did not make a specific finding that Wrinkles presented a risk of danger, escape, or courtroom disruption. But “the trial court apparently [had] a policy of requiring defendants to wear restraints regardless of whether they [had] previously exhibited any conduct justifying restraints.” Wrinkles II, 749 N.E.2d at 1195. According to the Indiana Supreme Court in Wrinkles II, a stun belt is a restraining device that is placed around an individual's waist as an alternative to leg-irons or shackles. The battery-powered belt has two prongs that are placed over the wearer's kidney region. A court bailiff or other law-enforcement officer can activate the belt by a remote control and, once activated, it sends a shock to the wearer that cannot be stopped. The electrical shock travels through the body via blood channels and nerve pathways. The shock knocks down most people, incapacitates them for up to 45 minutes, and causes them to shake uncontrollably. The individual may also have uncontrollable defecation and urination, irregular heartbeats, seizures, and welts, due to the shock. Wrinkles's attorneys did not object to the mandatory restraint policy. When faced with the choice of shackles or a stun belt, they opted for the latter, reasoning that there was less likelihood that the jury would see the belt during trial.

A jury found Wrinkles guilty of all three counts of murder, and recommended the death penalty; the trial judge sentenced Wrinkles to death. Wrinkles appealed his conviction and death sentence, raising a number of evidentiary claims and challenging both Indiana's death-penalty statute and his own sentence. He did not, however, appeal the trial court's blanket policy of requiring him to wear the stun belt at trial. Unpersuaded, the Indiana Supreme Court affirmed Wrinkles's convictions and sentence ( Wrinkles I ).

Thereafter, Wrinkles filed a petition for post-conviction relief, in which he challenged the constitutionality of the stun belt and raised ineffective-assistance-of-counsel claims, among other claims. Central to his claim for post-conviction relief were three affidavits from jurors in his trial who claimed to have seen the stun belt. The post-conviction court discounted the reliability of the affidavits and upheld Wrinkles's convictions and sentence:

The trial court did not strip the presumption of innocence from Petitioner by requiring him to wear the belt. The purpose of the belt is to maintain control over a prisoner without the prisoner appearing restrained. Petitioner did not prove that the belt was visible or that the jury knew about it. The affidavits from three jurors that they knew about the belt from the trial court, the bailiff, and/or newspaper articles read after trial, and Petitioner's appearance during trial are insufficient. First, the juror affidavits are inconsistent with each other. One juror stated that the jury was not told why Petitioner wore the belt, while another juror averred that the trial court told the jury about the belt to assure the jurors that they would be safe. Second, some of the juror affidavits are inconsistent with bailiff Todd Woodmansee's affidavit that he did not tell the jury about the belt. Third, both [of Wrinkles's attorneys] testified that the belt was not visible during trial. Fourth, the juror affidavits were not subjected to cross-examination. Because petitioner did not appear restrained during the trial, he was not stripped of the presumption of innocence.

Vanderburgh Circuit Court's Findings of Fact, Conclusions of Law and Judgment on Petition for Post Conviction Relief, Wrinkles v. State, No. 82C01-9407-CF-447 (Sept. 3, 1999) (emphasis in original).

After the post-conviction court rendered its decision, Wrinkles filed with that court a Motion to Correct Error, to which he attached new affidavits from additional jurors, who claimed to have seen the stun belt during trial. The post-conviction court did not grant Wrinkles's motion, nor did it admit the additional juror affidavits into evidence.

Wrinkles then appealed the post-conviction court's ruling to the Indiana Supreme Court. Relying on Indiana law, the supreme court in Wrinkles II prospectively banned the use of stun belts in Indiana courts. The court was specifically concerned with the mental impact on a defendant who might be afraid about the potential infliction of pain from the belt, and how this mental concern could impact the defendant's ability to participate in his own defense. Wrinkles II, 749 N.E.2d at 1194.

But the Indiana Supreme Court denied Wrinkles the benefit of its holding. The court held that Wrinkles's claim was procedurally defaulted because Wrinkles had failed to raise the issue on direct appeal. In addition, the court held that Wrinkles had not suffered from ineffective assistance of counsel when his attorneys failed to object to the use of the stun belt at his trial. The court characterized Wrinkles's attorneys' choice to acquiesce to the stun belt as a “strategic decision”:

Before trial began, the trial court informed counsel that Wrinkles would have to wear either shackles or a stun belt during trial. Without objection counsel chose a stun belt, and Wrinkles claims they rendered ineffective assistance as a result. We disagree. Although with this opinion we declare that stun belts no longer have a place in Indiana courtrooms, that was not the case at the time of Wrinkles' trial. Our prohibition is motivated primarily by the potential effect a stun belt may have upon the person wearing the device. However, without the benefit of this declaration, counsel were concerned about the effect on the jurors if they were to observe their client wearing a particular device. Counsel believed that the chance of the jury seeing the shackles was fairly high. On the other hand, counsel opted for the stun belt because they thought that jurors would not be able to see it. Obviously, they were later proven wrong. However, at the time the decision was made, it was a prudent one.

Wrinkles filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, in the United States District Court for the Southern District of Indiana. He presented a host of arguments, all of which Judge Tinder, rejected. Wrinkles v. McBride, No. IP 01-1668-C-T/K (D.Ind. May 18, 2005) (Entry Discussing Petition for Writ of Habeas Corpus). With respect to the constitutionality of the stun belt itself, the district court held that the claim could not be presented under § 2254 because it had been procedurally defaulted in state-court proceedings. Further, Judge Tinder held that even if the claim had not been waived, it lacked merit. Judge Tinder credited the post-conviction court's finding that the jurors were not aware of the stun belt and the belt was not visible.

Thereafter, Wrinkles filed a Request for Certificate of Appealability (“C.A.”) on two issues: (1) “Whether [he] was unconstitutionally restrained by virtue of wearing a stun belt at his trial,” and (2) “Whether [his] counsel rendered ineffective assistance of counsel at the ‘guilt phase’ of trial.” Judge Tinder granted Wrinkles a C.A. on the issue of the constitutionality of the use of the stun belt, but denied the request as to his ineffective-assistance-of-counsel claims. This appeal followed.

II. Analysis

On appeal, Wrinkles's first argues that the district court erred in finding that his stun-belt claim was procedurally defaulted because the default was the result of ineffective assistance of counsel. As for his freestanding constitutional claim, he argues that his Sixth, Eighth, and Fourteenth Amendment rights were violated when he was forced to wear the stun belt without an independent assessment of the need for restraints.FN2. Wrinkles also seeks an expansion of the C.A. to include his non-stun-belt ineffective-assistance-of-counsel arguments. For the reasons stated by the district court, we deny his request to expand the C.A. to include the additional claims on appeal. See Herrera v. United States, 96 F.3d 1010, 1013 (7th Cir.1996).

A. Procedural default

Before analyzing Wrinkles's substantive § 2254 claims, we must first determine whether Wrinkles procedurally defaulted his argument that wearing the stun belt violated his constitutional rights. Lee v. Davis, 328 F.3d 896, 899 (7th Cir.2003) (“As a threshold matter, we must determine whether Lee has procedurally defaulted his argument....”). The district court decided that Wrinkles had defaulted his argument-a decision we review de novo. Id. As a general matter, considerations of “finality, comity, and the orderly administration of justice” preclude this court from reaching claims that a habeas petitioner has procedurally defaulted in state court. Dretke v. Haley, 541 U.S. 386, 388, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). The criminal trial is a “decisive and portentous event” and, as such, the state has an interest in ensuring timely compliance with those procedures that permit the jury accurately to “decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens.” Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). For these reasons, a valid state procedural rule constitutes an “adequate and independent state ground” for resolving an issue, precluding this court from doing so collaterally. Id. at 86-87, 97 S.Ct. 2497.

Wrinkles sought federal habeas corpus review of federal-law issues that the Indiana Supreme Court disposed of based on adequate and independent state-law grounds. Specifically, Wrinkles's “freestanding” stun belt claims-that his rights to a fair trial under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution were violated when he was required to wear a stun belt without a hearing-were deemed by the Indiana Supreme Court to have been waived as a matter of state law. Wrinkles II, 749 N.E.2d at 1186-87 & 1187 n. 3. The procedural rule cited by the Indiana Supreme Court provides an “adequate and independent state ground” for resolving Wrinkles's constitutional claims. Indiana courts have long recognized, and the Wrinkles II court reaffirmed, that “[c]laims that are available, but not presented, on direct appeal are waived for post-conviction review unless the claimed error is fundamental.” Id. at 1187 n. 3; see also Adams v. State, 575 N.E.2d 625, 628 (Ind.1991). Thus, the district court was correct to conclude that Wrinkles's substantive claim was procedurally barred.

B. Excuse for procedural default

To keep his freestanding constitutional claim alive, Wrinkles argues that his procedural default is excusable under the standard set forth in Wainwright v. Sykes, 433 U.S. at 90, 97 S.Ct. 2497. A defendant may overcome procedural default by showing both “cause” for failing to abide by the state procedural rules, and a resulting “prejudice” from that failure. FN3 Id. at 87, 97 S.Ct. 2497. Specifically, Wrinkles argues that the freestanding stun-belt claim is procedurally defaulted solely because of his trial attorneys' ignorance of the law, a fact that renders his counsel ineffective and that provides cause to excuse a procedural default. Murray, 477 U.S. at 496, 106 S.Ct. 2639.

FN3. The Supreme Court has recognized an additional way to avoid procedural default if the default would result in a “fundamental miscarriage[ ] of justice.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). See generally 6 Wayne R. LaFave, et al., Criminal Procedure 64-65 (2d ed.2004). A miscarriage of justice exists in the “extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496, 106 S.Ct. 2639. In the capital context, one can show “actual innocence” through “clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Wrinkles has not, and cannot, make any claim of innocence. As for his sentence, although Wrinkles has not raised this issue, this analysis closely mirrors our analysis under the prejudice prong of Strickland.

Attorney error rising to the level of ineffective assistance of counsel can constitute cause to set aside procedural default. Franklin v. Gilmore, 188 F.3d 877, 883 (7th Cir.1999) (citing Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Barnhill v. Flannigan, 42 F.3d 1074, 1078 (7th Cir.1994)). When a habeas petitioner seeks to excuse a procedural default through an ineffective-assistance claim, the “cause” and “prejudice” test from Wainwright is replaced by the similar test for ineffective assistance set out in Strickland v. Washington, 466 U.S. at 668, 104 S.Ct. 2052. See Murray, 477 U.S. at 479, 106 S.Ct. 2639 (“So long as a defendant is represented by counsel whose performance is not constitutionally ineffective ... there is no inequity in requiring him to bear the risk of attorney error that results in a procedural default.”); see also Lee, 328 F.3d at 900.

“To establish ineffective assistance of counsel, the [petitioner] must show that counsel's performance was deficient and that the deficient performance prejudiced the [petitioner].” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir.2007) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). A “constitutionally deficient performance is one that falls below an objective standard of reasonableness under prevailing professional norms.” Shell v. United States, 448 F.3d 951, 954-55 (7th Cir.2006) (citing Granada v. United States, 51 F.3d 82, 83 (7th Cir.1995)). And to show prejudice, the defendant must prove that “ ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Raygoza v. Hulick, 474 F.3d 958, 963 (7th Cir.2007) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). In Wrinkles's case, if his attorneys' decision not to object to the stun belt fell short of objectively reasonable performance and prejudiced him, the Sixth Amendment was not satisfied and this court will excuse Wrinkles's procedural default.

Wrinkles's ineffective-assistance claim was preserved for collateral review. Lee, 328 F.3d at 901 (citing Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000)). The Indiana Supreme Court reached-and ultimately rejected-Wrinkles's claim as an excuse for his procedural default. In reviewing the Indiana Supreme Court's decision, we are deferential towards its legal and factual conclusions. Raygoza, 474 F.3d at 963; Neumann v. Jordan, 84 F.3d 985, 987 (7th Cir.1996) (“In reviewing the state court proceedings, we presume that the factual findings of the state court are correct if those findings follow a hearing on the merits and are fairly supported by the record.”). Likewise, the Indiana Supreme Court's legal conclusions will be upheld unless they resulted in a decision that was “(1) contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

1. Substandard performance by counsel

Wrinkles argues, and we agree, that his counsel's performance at trial fell below prevailing norms of professional behavior. The Indiana Supreme Court correctly identified Strickland as the governing law; thus, Wrinkles will only gain relief if the court unreasonably applied the standard to the facts of his case. 28 U.S.C. § 2254(d)(2). In evaluating the reasonableness of the Indiana Supreme Court's application of Strickland, we must ask whether the court was “objectively unreasonable,” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), meaning that its reasoning falls outside of the “ ‘boundaries of permissible differences of opinion.’ ” Raygoza, 474 F.3d at 964 (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.2002)).

The Indiana Supreme Court held that Wrinkles's counsels' decision not to object to the stun belt at trial was strategic and thus adequate. The supreme court first noted that the Indiana trial court had a stated “policy” of “requiring defendants to wear restraints regardless of whether they have previously exhibited any conduct justifying restraints.” Wrinkles II, 749 N.E.2d at 1195. The trial court had given Wrinkles's attorneys the choice of wearing shackles or the stun belt at trial. Because they thought that “the chance of the jury seeing the shackles was fairly high,” Wrinkles's attorneys chose the stun belt. Id. The supreme court characterized this as a “strategic decision” because, unlike shackles, Wrinkles's attorneys “thought the jurors would not be able to see” the belt. Id. In addition, because the trial court would have overruled any objection to the stun belt-per its stated restraint “policy”-Wrinkles could not demonstrate that his trial would have been any different if his attorneys had objected. Id. (“[E]ven though the trial court's policy would not likely withstand appellate scrutiny if the issue were presented, it is apparent that at least at the time of Wrinkles's trial, an objection to wearing restraints would not have been sustained by the trial judge even if made.”). Thus, the supreme court concluded, the decision was strategic and Wrinkles could not show a substandard performance by his trial counsel. We disagree.

At the time of Wrinkles's trial, it was well established that a trial court could not restrain a criminal defendant absent a particularized justification. In Illinois v. Allen, the Supreme Court held that a defendant could forfeit his Sixth Amendment right to be present and unrestrained at his own trial. 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The Court sanctioned the use of physical restraints “as a last resort,” id. at 344, 90 S.Ct. 1057, and articulated a framework for handling “obstreperous” defendants that tied the trial court's response to the seriousness of the defendant's conduct, id. at 343-42, 90 S.Ct. 1057. The Court applied this framework next in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), in which the defendant appeared before the jury in prison garb. Unlike Allen, which recognized “the substantial need to impose physical restraints upon contumacious defendants,” the Court in Estelle decided that forcing “an accused to wear jail clothing further[ed] no essential state policy.” Id. at 505, 96 S.Ct. 1691.

Again in Holbrook v. Flynn, 475 U.S. 560, 569, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), the Supreme Court applied this framework when evaluating the presence of armed guards at a defendant's trial. The Court concluded that the presence of armed guards was not the “sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial.” Id. at 568-69, 106 S.Ct. 1340. The need for a particularized justification had not gone unnoticed by Indiana courts either. The Indiana Supreme Court held in Coates v. State, that particularized reasoning must support a decision to restrain a defendant, going so far as to require that “the facts and reasoning supporting the trial judge's determination that restraints are necessary must be placed on the record.” 487 N.E.2d 167, 168-69 (Ind.1985).

In Wrinkles's case, his attorneys did not object to the use of the stun belt because they concluded that the trial court was going to require restraints no matter what. But these cases make clear that particularized reasoning must support any decision to restrain a defendant. In light of the wealth of caselaw prohibiting the trial court's blanket policy, by standing mute, Wrinkles's counsel failed to provide adequate legal assistance. Failing to object when a trial court presents two impermissible options-shackles or a stun belt, neither supported by individualized justification-cannot be an objectively reasonable tack under prevailing norms of professional behavior. See Strickland, 466 U.S. at 686, 104 S.Ct. 2052 (“Counsel, however, can also deprive a defendant of the right to effective assistance, simply by failing to render ‘adequate legal assistance.’ ”); see also Barrow v. Uchtman, 398 F.3d 597, 605 (7th Cir.2005) (holding ignorance of relevant law objectively deficient under Strickland); Dixon v. Snyder, 266 F.3d 693, 703 (7th Cir.2001) (same). Counsels' choice between two unconstitutional options is not a strategic choice worth deference. Accordingly, the Indiana Supreme Court unreasonably applied Strickland's first prong.

2. Prejudice

Standing alone, the attorneys' failure to request an inquiry into the justification for the stun belt is not ineffective assistance. Some prejudice is required before a trial counsel's performance falls below the constitutional minimum. Strickland, 466 U.S. at 691-692, 104 S.Ct. 2052. Without demonstrating prejudice, Wrinkles cannot receive relief on the ground of ineffective assistance of counsel, id., or on the basis of his freestanding constitutional claims regarding the stun belt, because the latter claim was procedurally defaulted at the state level.

Wrinkles argues that he was prejudiced because, in his opinion, the jurors were aware that he was restrained by the stun belt and were thus more inclined to view him as a dangerous person. In turn, he argues, the jurors were more likely to determine that he had the requisite mindset to commit murder, instead of a lesser crime, and were more willing to vote for the death penalty. If the jurors did see the stun belt during trial, then Wrinkles could demonstrate prejudice. See Allen, 397 U.S. at 344, 90 S.Ct. 1057; Roche, 291 F.3d at 482-83; Harrell v. Israel, 672 F.2d 632, 635 (7th Cir.1982) (“[C]ourts must guard against practices which unnecessarily mark the defendants as a dangerous character or suggest that his guilt is a foregone conclusion.”). Thus, Wrinkles's habeas petition hinges on the belt's visibility; the belt's visibility is a question of fact that was resolved by the state post-conviction court and upheld by the Indiana Supreme Court.

The post-conviction court determined that Wrinkles had not demonstrated that the jurors had seen the stun belt or that Wrinkles had otherwise been affected by it. The Indiana Supreme Court affirmed the post-conviction court. Wrinkles contends, however, that the supreme court made an implicit factual finding that the belt was visible to the jury. He bases his argument on a statement in Wrinkles II that indicates that Wrinkles's attorneys “were later proven wrong.” FN4 This sentence follows the court's discussion of the attorneys' decision not to challenge the trial court's imposition of the stun belt-restraint:

FN4. Wrinkles also claims that the Indiana Supreme Court recognized that the stun belt was “conspicuous to at least seven jurors.” However, Wrinkles takes this quotation in Wrinkles II out of context. The full sentence is one of three in a paragraph the Indiana Supreme Court uses solely to summarize Wrinkles's ineffective-assistance-of-counsel argument with respect to the stun belt. The entire sentence reads: “Wrinkles asserts that utilization of the stun belt, which was conspicuous to at least seven jurors, undermined his presumption of innocence and made him appear dangerous and uncontrollable in front of the jurors who would help decide whether he would live or die.” Wrinkles II, 749 N.E.2d at 1192 (citing Appellant's Br. at 29; Appellant's Reply Br. at 11). The sentence begins with “Wrinkles asserts.” The preceding sentence in the paragraph, which introduces Wrinkles's argument, begins with, “Wrinkles contends.” The subsequent sentence starts with, “He claims.” Taken in context, it is clear that the Indiana Supreme Court was merely presenting Wrinkles's argument, including his argument that the belt was visible to seven jurors.

We cannot fathom the notion that, in the middle of three paraphrasing sentences, the Wrinkles II court would have perfunctorily inserted a clause containing a factual finding, without indicating it as such. Courts often present a party's argument in order to present the issue it will proceed to consider, and it is apparent that the Indiana Supreme Court was doing this in Wrinkles II. Consequently, we reject Wrinkles's argument that this clause is a finding of fact by the Wrinkles II court that the stun belt was visible to jurors.

Before trial began, the trial court informed counsel that Wrinkles would have to wear either shackles or a stun belt during trial. Without objection counsel chose a stun belt, and Wrinkles claims they rendered ineffective assistance as a result. We disagree. Although with this opinion we declare that stun belts no longer have a place in Indiana courtrooms, that was not the case at the time of Wrinkles' trial. Our prohibition is motivated primarily by the potential effect a stun belt may have upon the person wearing the device. However, without the benefit of this declaration, counsel were concerned about the effect on the jurors if they were to observe their client wearing a particular device. Counsel believed that the chance of the jury seeing the shackles was fairly high. On the other hand, counsel opted for the stun belt because they thought that jurors would not be able to see it. Obviously, they were later proven wrong. However, at the time the decision was made, it was a prudent one. Wrinkles II, 749 N.E.2d at 1195.

Wrinkles believes the “Obviously, they were later proven wrong” sentence amounts to a finding of fact by the Indiana Supreme Court that the jurors saw the stun belt. We disagree with that interpretation of the sentence. To begin, we do not believe the Indiana Supreme Court would have made a factual finding in this manner, especially as it affirmed the post-conviction court and did not overturn any of the post-conviction court's factual findings. More importantly, we do not read this statement to reveal anything about the stun belt's visibility. Rather, the statement reflects the Indiana Supreme Court's opinion that Wrinkles's attorneys could not be faulted for having taken into account only the potential visibility of a particular restraint in deciding whether to object to a court's use of the restraint-because Indiana law at the time focused on the harm stemming from visible restraints.

a. Indiana law on factual findings

In the “deferential and limited review” of 28 U.S.C. § 2254, “state court factual findings are presumed correct.” Williams v. Bartow, 481 F.3d 492, 498 (7th Cir.2007). On the issue of the belt's visibility, the state post-conviction court considered three juror affidavits, affidavits from the trial bailiff, and testimony from Wrinkles's attorneys to decide whether the jurors saw or knew about the stun belt. The court discredited the juror affidavits. The affidavit of one juror stated that at the time she served on the jury, she was aware that Wrinkles was wearing a stun belt-she said it “looked like a cumberbund [sic].” However, she said she was unsure how she learned of the stun belt, and that she may have learned of it through a newspaper article she read after the trial. Another juror said in his affidavit that he was aware that Wrinkles was wearing a stun belt during his trial, and that he believed the trial judge told the jurors about the stun belt to give the jurors confidence in their safety. A third juror, in contrast, said that he thought the bailiff told the jury about the stun belt, but he said the jury was not told why Wrinkles was wearing the belt. The post-conviction court held that the affidavits were insufficient because they were inconsistent with each other-calling into question their credibility-and because they contradicted the bailiff's testimony, as well as Wrinkles's attorneys' testimony. The bailiff swore in his affidavit that he “never communicated to any of the jurors at any time during the trial that [Wrinkles] was wearing a rack belt.”

After it had rendered its judgment denying Wrinkles's request for post-conviction relief, the post-conviction court denied Wrinkles's subsequent motion to correct error, motion to reopen the evidence, and request for leave to amend his petition for post-conviction relief. Wrinkles proffered with each of these pleadings copies of four more juror affidavits. (A fifth affidavit was attached to a motion to supplement the motion to reopen the evidence.) However, these affidavits were never admitted into evidence by the post-conviction court, and there is no indication whatsoever that the Indiana Supreme Court weighed the additional affidavits as part of its analysis in Wrinkles II.

Notably, Wrinkles did not raise as issues on appeal to the Indiana Supreme Court the post-conviction court's denial of his post-judgment motions and request for leave to amend his petition based on the additional juror affidavits. In Indiana, a motion to correct error does not allow a party to present evidence it merely neglected to present at trial, Roach v. State, 695 N.E.2d 934, 940 n. 1 (Ind.1998), and a motion to reopen the evidence lies within the sound discretion of the trial judge, Walker v. State, 587 N.E.2d 675, 677 (Ind.1992). A judge typically does not abuse his discretion in refusing to reopen evidence “when it plainly appears that such evidence could have been offered earlier,” Preuss v. McWilliams, 141 Ind.App. 602, 230 N.E.2d 789, 792 (Ind.Ct.App.1967), or when the proffered evidence is cumulative, Oxendine v. Pub. Serv. Co. of Ind., Inc., 423 N.E.2d 612, 623 (Ind.Ct.App.1980). The additional affidavits Wrinkles sought to have admitted into the evidentiary record of the post-conviction court were never admitted-they remain mere attachments to state-court motions and thus should not form the basis of a federal habeas decision.

Having not appealed the post-conviction court's refusal to admit the additional affidavits into evidence, Wrinkles's reliance on the additional affidavits in his post-conviction appeal to the Indiana Supreme Court seems analogous to the petitioner's reliance on similar affidavits in Patton v. State, 537 N.E.2d 513 (Ind.Ct.App.1989). In Patton, the petitioner felt that because his attorney had failed to present the evidence to the trial court, “he should be allowed to present it by affidavits with his Motion to Correct Errors.” Id. at 516. The Indiana Court of Appeals explained that Indiana Trial Rule 59(H)(1), dealing with motions to correct error, “was not designed for this purpose.” Id. The Patton court went on to conclude that the affidavits “were not properly before the trial court as evidence outside the record”-they did not qualify as newly discovered evidence and Patton had neglected to submit them at trial. Id. Because the affidavits were not properly before the Indiana Court of Appeals, the Patton court declared: “we cannot consider them in reviewing the trial court's action.” Id.(emphasis added).

If under state law the Indiana Supreme Court would not have looked at the additional affidavits in its direct review of the post-conviction court's findings, see Roach, 695 N.E.2d at 940 n. 1; Walker, 587 N.E.2d at 677; Preuss, 230 N.E.2d at 792, certainly we are not at liberty to weigh them on collateral review under § 2254, where our review is limited to arguments that were adjudicated on the merits in state court proceedings, 28 U.S.C. § 2254(d), and arguments that were not procedurally defaulted, id. § 2254(b). Here, Wrinkles did not appeal the post-conviction court's refusal to admit the additional affidavits into evidence. Absent a reversal of the post-conviction court's rulings on these affidavits by the Indiana Supreme Court, and absent any indication by the Wrinkles II court that it nonetheless decided to consider the additional affidavits, we are not free to engage in an independent assessment of the affidavits' weight and the affiants' credibility.

The Wrinkles II opinion itself suggests that the Indiana Supreme Court adopted the post-conviction court's findings of fact in toto. The supreme court acknowledged the post-conviction court's factual findings and identified the standard of review called for under Indiana law:

In the present case, the post-conviction court entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). A post-conviction court's findings and judgment will be reversed only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake has been made. Wrinkles II, 749 N.E.2d at 1188. After reviewing the post-conviction court's findings and conclusions of law with respect to each of Wrinkles's arguments on appeal, the Wrinkles II court ultimately declared that Wrinkles “failed to prove that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Id. at 1203. It then affirmed the post-conviction court's denial of Wrinkles's petition for relief. Id.

The Wrinkles II court did not reverse the findings of the post-conviction court, either explicitly or implicitly. The Indiana Supreme Court has repeatedly noted that a post-conviction court's findings of fact are accepted unless “clearly erroneous,” and that the “postconviction court is the sole judge of the weight of the evidence and the credibility of witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004); Davidson v. State, 763 N.E.2d 441, 444 (Ind.2002); Woods v. State, 701 N.E.2d 1208, 1210 (Ind.1998) (emphasis added); see also Stewart v. State, 517 N.E.2d 1230, 1231 (Ind.1988) (“The judge who presides over the post-conviction hearing possesses exclusive authority to weigh the evidence and determine the credibility of the witnesses. The reviewing court will therefore not set aside the trial court's ruling on a post-conviction petition unless the evidence is without conflict and leads solely to a result different from that reached by the trial court.”) (emphasis added). The Indiana Supreme Court in Wrinkles II did not suggest in any way that it considered the additional affidavits that had never been admitted into the evidentiary record. Nor did the court say it was engaging in a de novo re-weighing of the evidence in Wrinkles II-indeed it appears it would not have done so as a matter of Indiana law. See Fisher, 810 N.E.2d at 679; Davidson, 763 N.E.2d at 444; Woods, 701 N.E.2d at 1210. Finally, nothing in the Wrinkles II opinion indicates that the Indiana Supreme Court was overturning the post-conviction court's factual findings, or that those findings were clearly erroneous.

b. Our reading of “ Obviously, they were later proven wrong.”

Despite a degree of ambiguity surrounding the “Obviously, they were later proven wrong” sentence in Wrinkles II, we conclude that the Indiana Supreme Court was commenting on the process by which Wrinkles's attorneys decided not to object to the stun-belt restraint-as opposed to commenting on the belt's visibility. In the disputed passage, the court first explained that it had just invalidated the use of stun belts based on a type of prejudice unavailable to Wrinkles's counsel at the time of trial-the “potential effect ... upon the person wearing the device.” The court then set out the choice of restraint facing Wrinkles's attorneys at trial in light of the only theory of prejudice then available-the “effect on the jurors.” Lastly, the court explained why, based on this latter theory of prejudice, counsel's decision to choose the stun belt was a “prudent one” even though the attorneys were “later proven wrong” to examine their choice solely based on “the effect on the jurors.”

In rejecting Wrinkles's claim that he had received ineffective assistance of counsel, the court stated, in relevant part: Before trial began, the trial court informed counsel that Wrinkles would have to wear either shackles or a stun belt during trial. Without objection counsel chose a stun belt, and Wrinkles claims they rendered ineffective assistance as a result. We disagree. Although with this opinion we declare that stun belts no longer have a place in Indiana courtrooms, that was not the case at the time of Wrinkles' trial. Our prohibition is motivated primarily by the potential effect a stun belt may have upon the person wearing the device. However, without the benefit of this declaration, counsel were concerned about the effect on the jurors if they were to observe their client wearing a particular device. Counsel believed that the chance of the jury seeing the shackles was fairly high. On the other hand, counsel opted for the stun belt because they thought the jurors would not be able to see it. Obviously, they were later proven wrong. However, at the time the decision was made, it was a prudent one. Wrinkles II, 749 N.E.2d at 1195 (citations omitted).

The last few sentences of this quoted section-particularly the sentence “[o]bviously, they were later proven wrong”-are not entirely unproblematic. One could read this second-to-last sentence as referring back to the court's statement that “the jurors would not be able to see it,” with the “it” referring to the stun belt. So read, this could be seen as an implicit finding that the jurors had in fact seen the stun belt and that Wrinkles's attorneys “were later proven wrong” about their contrary assumption. In turn, this would suggest that the stun belt may have prejudiced the defendant.

We cannot conclude that this is the appropriate reading for two reasons: (1) the quoted section is more consistent with a discussion of the choice facing Wrinkles's attorneys in light of the then-established prejudice associated with restraints; and (2) Indiana law as well as subsequent guidance by the Indiana Supreme Court sheds light on the more plausible reading. Parsing the above-quoted section, the paragraph begins:

Before trial began, the trial court informed counsel that Wrinkles would have to wear either shackles or a stun belt during trial. Without objection counsel chose a stun belt, and Wrinkles claims they rendered ineffective assistance as a result. We disagree. Although with this opinion we declare that stun belts no longer have a place in Indiana courtrooms, that was not the case at the time of Wrinkles' trial. 749 N.E.2d at 1195. The issue before the court was whether Wrinkles's counsel “rendered ineffective assistance” when “[w]ithout objection counsel chose a stun belt” after “the trial court informed counsel that Wrinkles would have to wear either shackles or a stun belt during trial.” In the immediately preceding paragraphs of the opinion, the supreme court had just held that “stun belts no longer ha[d] a place in Indiana courtrooms.” But this did not end the inquiry because “that was not the case at the time of Wrinkles' trial,” when the counsel rendered their assistance. In prospectively banning stun belts, the court had relied on a form of prejudice that was unproven at the time of Wrinkles's trial. The supreme court continued:

Our prohibition is motivated primarily by the potential effect a stun belt may have upon the person wearing the device. However, without the benefit of this declaration, counsel were concerned about the effect on the jurors if they were to observe their client wearing a particular device. Id. In Wrinkles II, the court reasoned that the prejudice from a stun belt resulted not from the jury being able to see the defendant in restraints, but from “the potential effect a stun belt may have upon the person wearing the device.” This form of prejudice marked a departure from preexisting case law, which had only discussed prejudice in terms of the defendant's visibility before the jury in restraints. Id. at 1193-95; see also Stephenson v. Indiana, 864 N.E.2d 1022, 1029, 1032 (Ind.2007) (discussing reasonableness of counsel's choice “given that the case law addressing the issue had largely focused on the visibility of the restraint, and not, as Wrinkles later pointed out, on the belt's potential effect on the defendant's demeanor and ability to participate in the defense”). Understandably then, “without the benefit of this declaration, [Wrinkles's] counsel were concerned” instead with the more established form of prejudice associated with restraints: “the effect on the jurors if they were to observe their client wearing a particular device.”

The question then became whether effective counsel would have accounted for the new form of prejudice just identified in banning stun belts. But the supreme court said no; the failure to object was not ineffective assistance. In reaching this conclusion, the court first recreated the decision facing Wrinkles's counsel in choosing the restraint to be used:

Counsel believed that the chance of the jury seeing the shackles was fairly high. On the other hand, counsel opted for the stun belt because they thought the jurors would not be able to see it. Wrinkles II, 749 N.E.2d at 1195. In other words, after assuming that they need only consider the effect on the jurors, the attorneys chose the stun belt because it posed the least risk of being seen by the jurors when compared to the shackles.

Immediately following the court's articulation of these two options and the rationale behind the attorneys' choice, the court continued, Obviously they were later proven wrong. However, at the time the decision was made, it was a prudent one. Id. This first sentence refers back to the court's statement that “counsel opted for the stun belt because they thought the jurors would not be able to see it.” Wrinkles's attorneys opted for the form of restraint that they thought would minimize prejudice-the “effect on the jurors.” But the court had just held that its decision was instead “motivated primarily by the potential effect a stun belt may have upon the person wearing the device,” not the “effect on the jurors.” Thus, “[o]bviously, they were later proven wrong” to have evaluated the choice of restraint through the lens of juror-prejudice alone. Nonetheless, because the attorneys could not be faulted for failing to predict the form of prejudice announced in Wrinkles II, “at the time the decision was made, it was a prudent one.”

Placing Wrinkles II within the larger context of Indiana law-both procedural law and a subsequent interpretation laid out by the Indiana Supreme Court-reinforces this reading. When reviewing a state-court decision in federal courts, the resolution of potentially dispositive ambiguities occasioned by a state-court finding should be resolved, where possible, by reference to that state's law. See Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) (direct review); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) (collateral review); Rivera v. Sheriff of Cook County, 162 F.3d 486, 489 (7th Cir.1998) (collateral review post-AEDPA). Thus, in an analogous situation, the Supreme Court has instructed lower courts to examine the state's procedural law closely, or to certify questions to the state's highest court when necessary, Greene, 437 U.S. at 26 n. 8, 27, 98 S.Ct. 2151, or to examine subsequent decisions that may shed some light on the issue at hand, Tibbs, 457 U.S. at 46-47, 102 S.Ct. 2211.

Here, Indiana procedural law and a subsequent supreme court decision support the conclusion that the above reading of Wrinkles II is the proper one. First, as discussed above, it is implausible to view the “Obviously” statement as an implicit factual finding by the the supreme court. Under Indiana law, the supreme court would not have examined additional affidavits contained in a motion to correct error. And the rest of Wrinkles II is more consistent with a blanket affirmance than with an affirmance despite a factual finding contrary to the post-conviction court's. This latter scenario is especially unlikely given that the supreme court was reviewing only for clear error.

But more importantly, this court must credit the Indiana Supreme Court's later interpretation of Wrinkles II in resolving the ambiguity contained in the disputed passage. Tibbs, 457 U.S. at 46-47, 102 S.Ct. 2211 (“Any ambiguity in Tibbs I ... was resolved by the Florida Supreme Court in Tibbs II,” which “binds this Court.”). Although it is not often that an ensuing state supreme court decision affects a disputed finding in a previous decision, it is not unprecedented. This scenario arises with some regularity when reviewing whether a defendant's retrial following a state appellate court's reversal of a conviction raises double jeopardy concerns. And defendants frequently raise these claims before federal courts on collateral review. See, e.g., Rivera, 162 F.3d at 489. If the state appellate court reversed because the evidence in the first trial was insufficient, double jeopardy attached and retrial is improper. But if the appellate court reversed simply because the defendant's first conviction was against the “weight of the evidence,” the defendant's retrial is constitutional. In deciding which basis the state appellate court relied on in reversing, federal courts must often parse the appellate court's decision against the backdrop of the state's procedural law and ensuing case law. Id. (“[S]tate courts should themselves determine the right way to understand their pronouncements.”).

A scenario comparable to the case at hand presented itself to the Supreme Court in Tibbs v. Florida, 457 U.S. at 31, 102 S.Ct. 2211. There, the Florida Supreme Court's first decision reversing Tibbs's conviction did not obviously rest on either the “insufficiency” or the “weight of the evidence.” But a second Florida Supreme Court opinion following Tibbs's retrial clarified matters; the earlier reversal had been based on the “weight of the evidence.” One issue before the Supreme Court on appeal from this latter decision was whether the initial reversal had been based instead on the “weight of the evidence.” The Supreme Court affirmed the defendant's conviction following retrial, noting that the Florida Supreme Court's “construction of its prior opinion binds this Court.” Id. at 46-47, 102 S.Ct. 2211. Because “[a]ny ambiguity in Tibbs I ... was resolved by the Florida Supreme Court in Tibbs II,” id., the Court had to give effect to the decision-meaning that the defendant's retrial had been proper.

In Stephenson v. Indiana, 864 N.E.2d 1022 (Ind.2007), the Indiana Supreme Court provided similar guidance. In Stephenson, the court compared the decision made by Wrinkles's counsel in choosing the stun belt with the same decision made by Stephenson's during his trial. In so doing, the court explained its rationale in Wrinkles II: At the time of Stephenson's trial in 1996 and 1997, no Indiana ruling had addressed the use of stun belts. As in Wrinkles, counsel cannot be faulted for selecting the belt over more visible shackles, given that the case law addressing the issue had largely focused on the visibility of the restraint, and not, as Wrinkles later pointed out, on the belt's potential effect on the defendant's demeanor and ability to participate in the defense. Id. at 1032. The court went on to characterize the decision made by Wrinkles's attorneys as a “tactical decision.” The “only real issue” in Wrinkles's trial was sentencing, so “[t]he decision to challenge the belt [there] arguably fell into the tactical range, balancing the likelihood of success against the risk of alienating the judge by challenging an announced ‘policy.’ ” Id. Because in Stephenson's case, guilt was “vigorously disputed,” a “tactical” classification could not apply. The court went on to hold that the “use of a stun belt, if perceived by the jury, produces all the results that shackling does.” After a careful examination of the post-conviction record, the Stephenson court concluded that the jurors had been aware of the stun belt. Nonetheless, the court upheld Stephenson's convictions and death sentence because he had not demonstrated the requisite amount of “prejudice” to establish his ineffective-assistance claim.

This discussion of Wrinkles II in Stephenson indicates that the above reading is the appropriate one. The section discussing the Wrinkles II decision tracks the Indiana Supreme Court's reasoning in the exact manner discussed above. The court recreated the decision facing Wrinkles's attorneys in light of the established form of prejudice at the time. The court again recognized that Wrinkles's attorneys viewed their decision at trial in light of the “visibility of the restraint,” and not the “belt's potential effect on the defendant's demeanor and ability to participate in the defense.” And just as it had in Wrinkles II, the court concluded that Wrinkles's counsel could not be faulted for failing to predict the prejudice the court would credit in banning the stun belt.

Even with the benefit of this reading, the Indiana Supreme Court unreasonably applied Strickland in evaluating Wrinkles's attorneys' performance in Wrinkles II. The failure to object itself fell below what is expected under professional norms, regardless of the theory of prejudice. A blanket policy of restraint cannot be squared with the case law at the time of trial. But notwithstanding the propriety of the court's conclusion, it is evident that the court did not make a finding that the jurors had seen the stun belt. Instead, the court in Wrinkles II was reconstructing the decision made by Wrinkles's counsel based on the then-established form of prejudice associated with the stun belt.

In light of the nature of the court's reasoning in Wrinkles II, the discussion in Stephenson, and the implausibility under Indiana law of the Indiana Supreme Court making implicit factual findings, we conclude that the Indiana Supreme Court did not make a finding of fact that the jurors had seen the stun belt. The controlling findings of facts are those set forth by the state post-conviction court and adopted by the Wrinkles II court. These findings of fact determined that the jury did not see the stun belt. Additionally, Wrinkles has not presented us with any evidence to demonstrate that the stun belt affected his abilities to properly participate in his own defense. Without evidence that the jurors saw the stun belt, or that he was otherwise affected by the stun belt throughout trial, Wrinkles cannot demonstrate prejudice. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. He therefore cannot show that he received ineffective assistance of counsel, so he cannot demonstrate the requisite cause and prejudice necessary to overcome his procedural default. Guest, 474 F.3d at 930. Thus, this Court is procedurally barred from examining his freestanding stun-belt claim and must deny the writ.

III. Conclusion

The decision of the district court is Affirmed.

ROVNER, Circuit Judge, dissenting.

I agree with my colleagues that Matthew Wrinkles's trial attorneys were deficient in failing to object to the trial court's insistence on the use of restraints absent judicial findings that Wrinkles presented a security threat or otherwise required physical restraints. I cannot agree, however, that Wrinkles was not prejudiced by counsels' error. The natural reading of the opinion of the Indiana Supreme Court in Wrinkles II is that several jurors were aware of the stun belt during the trial. In light of that finding, Wrinkles has shown both the inherent prejudice that accompanies visible restraints and other detriments specific to his case. Only through a tortured interpretation of the Indiana Supreme Court's opinion, with which not even the respondent agrees, does the majority conclude that Wrinkles was not prejudiced by his attorneys' error. I would not wager a man's life on the correctness of the majority's grammatical parsing, and therefore I respectfully dissent.

During the state postconviction proceedings, Wrinkles submitted affidavits from two jurors who attested that, during the trial, they were “aware” that Wrinkles was wearing a shock belt. One juror “believe[d]” that a bailiff told the jurors of the belt and the other was unsure how he became aware but “believe[d]” the judge told the jurors. A third juror (juror Kraft) attested that she was aware of the belt and even saw it on Wrinkles during the trial; she described the belt as looking like a cummerbund. Kraft also stated that she may have become aware of the belt after the trial from a newspaper article. Despite ample time to investigate and prepare counter-affidavits, the state submitted only one, from one of the three bailiffs who worked at Wrinkles's trial. The bailiff attested that he never communicated to the jurors that Wrinkles was wearing a stun belt. Nothing, however, contradicted the three jurors' testimony that they knew about the belt; only how each learned of it remained open to question. Despite the testimony by all three jurors that they knew about the stun belt, and with nothing in the record to the contrary, the postconviction court found that the jurors were not aware of the stun belt. The court reasoned that the affidavits were not credible because of inconsistencies and because the jurors were not subject to cross-examination.FN1

FN1. The court also did not explain why it credited the bailiff's affidavit, which was also not subject to cross-examination. The affidavits are duly sworn under the penalty of perjury. They were prepared four years after the trial. Wrinkles vigorously contested the court's finding. He moved the postconviction court to reopen the evidence and to correct error, and supplemented the record with four additional juror affidavits. Kraft, one of the three original affiants, clarified that she had “no doubt” that during the trial she knew the belt she saw on Wrinkles was a stun belt, although she was still unsure as to how she came by that knowledge. Three additional jurors attested that they were aware of the belt during the trial, although none could recall the source of that information. Two of them supplied the additional detail that they understood that the belt could be activated remotely by a deputy. Finally, in a supplemental filing, one additional juror attested that she saw the stun belt during the trial. The postconviction court declined to revisit the issue and denied Wrinkles's motions.

Wrinkles argued on appeal to the Indiana Supreme Court that the finding that the jurors were unaware of the stun belt was erroneous. In its opinion, the Indiana Supreme Court implicitly accepted that argument by making statements inconsistent with the postconviction court's finding. If the jurors knew about the stun belt, we must presume that Wrinkles was prejudiced, and so the interpretation of the supreme court's statements on this subject is the linchpin of this case.

In its first reference to the issue, the Indiana Supreme Court stated: “Wrinkles asserts that utilization of the stun belt, which was conspicuous to at least seven jurors, undermined his presumption of innocence and made him appear dangerous and uncontrollable in front of the jurors who would help decide whether he would live or die.” Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind.2001) ( Wrinkles II ). The statement is ambiguous at best, and it could be interpreted as the court's recapitulation of one of Wrinkles's arguments. However, Wrinkles's proffered interpretation, that the supreme court itself believed that the stun belt was conspicuous, is also plausible because the court did not specifically ascribe that assertion to Wrinkles. FN2 The sentence reads more naturally as an acknowledgment by the court that seven jurors were aware of the belt.

FN2. As the majority points out, ante at 815 n. 4, the supreme court otherwise consistently used such language as “Wrinkles contends” or “He claims” immediately preceding his arguments. The court's second mention of the critical factual issue is not ambiguous. It first states that Wrinkles's counsel, lacking the guidance of the later decision to ban stun belts outright, reasonably chose between shackles and stun belt based on the effect each might have on the jurors. Id. at 1195. The court continues: “Counsel believed that the chance of the jury seeing the shackles was fairly high. On the other hand, counsel opted for the stun belt because they thought that jurors would not be able to see it. Obviously, they were later proven wrong. However, at the time the decision was made, it was a prudent one.” Id.(emphasis added). Given the preceding sentence, the italicized sentence must be read as an acknowledgment by the supreme court that, despite counsels' pretrial predictions that the stun belt would go undetected, some jurors indeed were aware of it.

The majority, however, concludes that the attorneys were “later proven wrong” in their decision to evaluate “the choice of restraint through the lens of juror-prejudice alone.” Ante at 820. In order to arrive at this tortured result, my colleagues devote no less than ten pages to what they describe, fittingly, as “Our Reading of ‘Obviously, they were later proven wrong.’ ” Ante at 818. The subheading is particularly apt because it is the majority's interpretation and the majority alone. At oral argument, even the State of Indiana did not deny that the statement means that the supreme court believed that jurors were aware of the belt. Cf. McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 680 (7th Cir.2002) (“The verbal admission by SCI's counsel at oral argument is a binding judicial admission, the same as any other formal concession made during the course of proceedings.”). Instead, the State characterized this finding as “an aside” the supreme court inserted while making the point that “the fact that later the jurors may have seen it ... doesn't matter for counsel's decision at the time he made it.” Indeed, nowhere in its brief does the State mention the passage of the Indiana Supreme Court's opinion that divides the panel, a fact which makes the majority's ten-page analysis of the disputed passage all the more extraordinary. See, e.g., Kochert v. Adagen Med. Int'l., Inc., 491 F.3d 674, 679 (7th Cir.2007) (Plaintiff “did not raise, much less develop this argument, and undeveloped arguments are waived.”).

Then my colleagues, who accuse Wrinkles of taking the statement out of context, proceed to rearrange the entire paragraph to reach the conclusion that the Indiana Supreme Court was explaining why “counsel's decision to choose the stun belt was a ‘prudent one’ even though the attorney's were ‘later proven wrong’ to examine their choice solely based on ‘the effect of the jurors.’ ” Ante at 819. Not only does this interpretation strain common sense, it is inconsistent with the supreme court's analysis of counsels' decision. As the majority concedes, the Indiana Supreme Court erroneously concluded that counsel were not deficient for failing to object to the stun belt because in light of the trial court's supposed policy of requiring restraints, “an objection to wearing restraints would not have been sustained by the trial judge even if made.” Wrinkles II, 749 N.E.2d at 1195. Thus, the Indiana Supreme Court excused counsels' failure to know the law with the illogical reasoning that the trial judge's illegal policy obviated the need for an objection.

Given this view, it would make no sense for the Indiana Supreme Court to in the same breath conclude that counsel were “later proven wrong” to have evaluated the situation solely through the lens of Wrinkles's appearance before the jury. Quoting a piece of the disputed sentence and then adding on its own “clarification” the majority comes up with the following conclusion: “Thus, ‘[o]bviously, they were later proven wrong’ to have evaluated the choice of restraint through the lens of juror-prejudice alone. Nonetheless, because the attorneys could not be faulted for failing to predict the form of prejudice announced in Wrinkles II,' at the time the decision was made, it was a prudent one.' ” Ante at 820. But being “proven wrong” about the possibility that the defendant would be prejudiced by the jury seeing him restrained is a nearly nonsensical concept. After all, the fact that the Indiana Supreme Court emphasized the effect of the restraint on the defendant (a form of prejudice long-recognized, not, as both the Indiana Supreme Court and my colleagues seem to believe, a novel proposition) as opposed to the prejudice occasioned by the jury seeing the belt does not mean that prejudice from a visible restraint is no longer a legitimate concern of counsel-i.e., that counsel would be “wrong,” as the majority suggests, for considering that form of prejudice. That borders on the absurd.

The majority claims its strained interpretation is the more plausible one in light of first, Indiana procedural law, and second, the Indiana Supreme Court's subsequent decision in Stephenson. As for state procedural law, it seems odd indeed to be assessing whether the Indiana Supreme Court breached its own procedural rules in the context of a federal habeas claim, see, e.g., McCloud v. Deppisch, 409 F.3d 869, 875-76 (7th Cir.2005) (construction of state law irrelevant in habeas proceeding), where it goes without saying that state law cannot be the basis for relief. Conversely, if our decision turns on the answer to a question of state law, something is amiss. On the issue of the additional affidavits Wrinkles sought to have admitted in the postconviction court, the state conceded at oral argument that the Indiana Supreme Court reviewed those affidavits “in some fashion.” It seems both unusual and unhelpful to analyze whether we believe the Indiana Supreme Court is allowed under Indiana law to do precisely what the state concedes that it did. Moreover, I do not think the additional affidavits are determinative-the Indiana Supreme Court could easily have rejected the postconviction court's conclusion based on the three affidavits indisputably in the record, making the majority's preoccupation with whether the supreme court had the authority under state law to review the additional affidavits largely irrelevant.

The majority's unlikely interpretation also ignores the procedural context. First, the factual issue was squarely presented to the Indiana Supreme Court. Second, the court suggested that it reviewed all seven juror affidavits despite the postconviction court's refusal to do so; it referred to the belt being conspicuous to “at least seven” jurors. See Wrinkles II, 749 N.E.2d at 1192. Third, because no jurors testified at the postconviction hearing, the supreme court was at no disadvantage compared to the trial court in evaluating the credibility of the jurors' statements, and so there is no reason to defer to the trial court's interpretation. Finally, the supreme court made statements inconsistent with the factual finding of the postconviction court. The only logical conclusion is that the Indiana Supreme Court supplemented the record with its own finding that a number of jurors were aware that Wrinkles was restrained by a stun belt.

The majority protests that such a conclusion cannot be drawn because, “[h]ere, Wrinkles did not appeal the post-conviction court's refusal to admit the additional affidavits into evidence,” ante at 817 (emphasis in original). Not only is this line of argument a red herring, it is simply untrue. In fact, Wrinkles did appeal the post-conviction court's refusal to admit the additional affidavits. Specifically, Wrinkles's brief on appeal to the Indiana Supreme Court states that “Wrinkles attempted to admit affidavits from four additional jurors who knew Wrinkles was restrained. The post-conviction court erroneously denied Wrinkles' motion to supplement the record with these affidavits.” (Brief for Petitioner-Appellant at 19 n. 6, Wrinkles v. Indiana, No. 82C01-9407-CF-447.) The fact that, contrary to the majority's repeated insistence otherwise, see ante at 817, Wrinkles placed the issue before the Indiana Supreme Court makes the court's reference to the jurors' awareness of the belt all the more straightforward.

Moreover, whether the Indiana Supreme Court did or did not formally admit the additional affidavits is in no way as determinative as my colleagues suggest. The three affidavits that were originally admitted all establish the jurors' knowledge of the stun belt; and Wrinkles vigorously argued to the supreme court in a properly preserved appeal that the postconviction court's contrary finding was clearly erroneous. Those three affidavits alone established the jurors' knowledge; it is only the source of that knowledge that was unclear. Neither the testimony of Wrinkles's attorneys (regarding the belt's visibility ) nor the affidavit from one of the bailiffs FN3 (regarding his own communication with jurors and not addressing any other possible source) contradicts the jurors' testimony that they knew about the belt. And the state did not produce a single counteraffidavit from a juror who was not aware of the belt. As I have stated, to the extent there was no oral testimony by the jurors, and the issue was decided on the basis of the affidavits alone, there is no reason to defer to the postconviction court's interpretation of the written testimony over the Indiana Supreme Court's.

FN3. Notably, although the majority emphasizes the bailiff's affidavit, his sworn testimony that he was “sequestered with the jury for the entire duration of the trial” was later shown to be inaccurate. That bailiff eventually submitted a supplemental affidavit clarifying that he was temporarily absent from the trial and another bailiff took over his duties during that time. Nor was this bailiff the only one assigned to the trial; thus there is little to the postconviction court's suggestion that the bailiff's affidavit contradicted Kenneth Ranes's affidavit that he believed “the bailiff” told jurors about the stun belt.

The Indiana Supreme Court's discussion of Wrinkles II in Stephenson likewise does nothing to undercut the plain language of the disputed passage. In a confusing passage devoted to “explaining” why “obviously, they were later proven wrong” means wrong about some other issue than the one identified in the preceding sentence, the majority resorts to yet another Indiana Supreme Court case on stun belts. But it is unclear how Stephenson, which does indeed discuss Wrinkles II, sheds any light on whether the court believed the jurors knew about the stun belt in Wrinkles's case. The majority first explains its reliance on Stephenson by analogizing it to a situation where “an ensuing state supreme court decision affects a disputed finding in a previous decision.” Ante at 821. But the examples cited provide no precedent for resorting to a later opinion to clarify a state court's finding of fact in an earlier, unrelated proceeding. The supposedly “comparable” case relied on by the majority- Tibbs-demonstrates the point. There the United States Supreme Court referred to a later pronouncement by the Florida Supreme Court to resolve ambiguity in the earlier opinion in the same case; to be sure, subsequent pronouncements in the same case may illuminate the basis of a state court decision-as in Tibbs when a case is reversed and then retried and the court in the second appeal comments on its rationale in the first appeal. But using an unrelated subsequent state court opinion to interpret the meaning of case-specific language in a previous case strikes me as, if not unprecedented (certainly the majority points to no truly analogous scenario), highly unusual.

At all events, Stephenson is hardly so illuminating as the majority suggests. My colleagues point out that Stephenson “tracks” the reasoning from Wrinkles II by recreating the decision facing Wrinkles's counsel at the time and their concern with whether the jury would see the belt as opposed to what effect the device would have on Wrinkles. But the fact that the Indiana Supreme Court repeated in Stephenson its mistake in Wrinkles-excusing counsels' objectively deficient performance-sheds no light on the meaning of “obviously, they were later proven wrong.” Notably, the court in Stephenson concluded that the jurors in that case did see the defendant's stun belt. But despite the discussion that “tracks” its reasoning in Wrinkles II, the court nowhere distinguishes Wrinkles II on the basis that the jurors in that case did not know about the stun belt. Stephenson's explicit finding that the jurors in that case were aware of the stun belt still did not lead the court to conclude that counsel were deficient. See Stephenson, 864 N.E.2d at 1034-40. If anything, the supreme court's repetition in Stephenson of its mistake regarding counsels' effectiveness confirms that the court failed, in both Wrinkles II and Stephenson, to see that failure to object to restraints imposed without particularized justification amounts to objectively deficient representation. The court's inability to appreciate this in Stephenson makes it all the more obvious that it recognized in Wrinkles II that the jurors were aware of the belt, but erroneously deemed that fact irrelevant in light of its misplaced focus on the fact that the trial court would have (incorrectly) overruled an objection to the stun belt. Compare Wrinkles II, 749 N.E.2d at 1195 and Stephenson, 864 N.E.2d at 1040-41.

Finally, the majority places great weight on the fact that the Indiana Supreme Court was considering the “choice of restraint facing Wrinkles's attorneys at trial in light of the only theory of prejudice then available-the ‘effect on the jurors.’ ” Ante at 819. But neither the majority nor the Indiana Supreme Court is correct that the jury's diminished impartiality was the only legally recognized form of prejudice at the time of Wrinkles's trial. Both the United States Supreme Court and lower courts have long recognized that the harm flowing from visible restraints is threefold. In addition to the potential effect on the jury's impartiality, the Supreme Court in 1970 recognized that restraints may interfere with the accused's right to assist in his defense. See Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (“[O]ne of the defendant's primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint.”). In Deck v. Mo., 544 U.S. 622, 631, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), the Supreme Court refers to the “ ‘ancient’ English rule” forbidding shackles and bonds absent a compelling justification-a rule formed in part out of concern that the restraints not interfere with a defendant's presentation of his defense: “ ‘If felons come in judgment to answer, ... they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will.’ ” See Deck, 544 U.S. at 626, 125 S.Ct. 2007 (quoting 3 E. Coke, Institutes of the Law of England ). Lastly, Allen points out that the use of visible restraints is an affront to the dignity of judicial proceedings. Allen, 397 U.S. at 344, 90 S.Ct. 1057. Thus, at least from Allen onward, courts have recognized three distinct harms flowing from the use of visible restraints: (1) prejudice to the jury's impartiality, (2) prejudice to the defendant's ability to participate in his defense, and (3) damage to the dignity of the proceedings. See, e.g., Deck, 544 U.S. at 630-32, 125 S.Ct. 2007 (recognizing “three fundamental legal principles ” animating the “judicial hostility” towards visible restraints) (emphasis added); Harrell v. Israel, 672 F.2d 632, 635 & n. 3 (7th Cir.1982) (citing Allen to support three reasons given for the rule against physical restraints); Coates v. State, 487 N.E.2d 167, 169 (Ind.App.1985) (recognizing that restraints distract defendant's “thought process”); People v. Brown, 45 Ill.App.3d 24, 3 Ill.Dec. 677, 358 N.E.2d 1362, 1363 (Ill.App.1977) (recognizing the prejudicial effect of restraints on jury's feelings about defendant, the possibility that shackles would impair defendant's ability to communicate with counsel, and the fact that shackles detract from “dignity and decorum of judicial process”).

Thus, there is no basis for the majority's attempt to explain away the clear import of the phrase “[o]bviously, they were later proven wrong” by reasoning that the Indiana Supreme Court must have been excusing counsels' failure to predict that the effect on a defendant would one day become a legal rationale forbidding the use of restraints at trial. That rationale was available to counsel at the time of Wrinkles's trial. And the fact that counsel failed to “predict” what was in fact a long-settled rule of law is not remotely surprising: lead trial counsel testified at the postconviction hearing that, “I did not know that there was a law about shackling.” If anything, the Indiana Supreme Court's failure to acknowledge the longstanding recognition that restraints also prejudice the accused's ability to participate in his defense simply reaffirms that the Indiana Supreme Court unreasonably applied clearly established law. Cf. Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (state court unreasonably applies Supreme Court precedent when it “unreasonably refuses to extend” a legal principle “to a new context where it should apply”). As this court recently recognized, “law” refers not just to Supreme Court holdings, but “legal principles derived from the holdings in Supreme Court opinions.” Samuel v. Frank, 525 F.3d 566, 569 (7th Cir.2008). Thus, the fact that earlier law may not have addressed stun belts in particular as opposed to restraints generally is of no consequence.

It is well established that our obligation to defer to the factual findings of state courts extends to appellate courts. See Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Miranda v. Leibach, 394 F.3d 984, 999 (7th Cir.2005); Mendiola v. Schomig, 224 F.3d 589, 592-93 (7th Cir.2000); Sprosty v. Buchler, 79 F.3d 635, 643 (7th Cir.1996); Holland v. McGinnis, 963 F.2d 1044, 1048 (7th Cir.1992). The finding that some jurors knew about the stun belt is amply supported by the record, and we must defer to it. See Sprosty, 79 F.3d at 643 (presumption of correctness applies to “implicit resolution of a factual dispute that can be fairly inferred from the state court record”). In contrast, the majority, like the state postconviction court, can point to no record evidence supporting the conclusion that the jurors were not aware of the belt. Instead, it shores up its unlikely interpretation with a foray into state law positing that under Indiana law, the Indiana Supreme Court probably would not do what common sense suggests that it did when it commented that Wrinkles's attorneys did not think jurors would see the stun belt but “they were later proven wrong.”

Of course, even finding that some jurors were aware of the stun belt did not lead the Indiana Supreme Court to conclude that Wrinkles's attorneys were deficient for failing to object. That conclusion, rightly rejected by my colleagues, is largely based on the court's determination that any objection would have been futile due to the trial court's practice of routinely requiring restraints, as well as the fact that Wrinkles's guilt was not in question. I will not dwell on the erroneousness of that analysis, but it is worth emphasizing that counsel's obligation to object for the record was more, not less, urgent where the judge imposed an extralegal burden on Wrinkles without even attempting to justify it. Moreover, counsels' failure to object-whatever the probable ruling-contributed in large part to the procedural hurdles Wrinkles now must clear in order to get relief, compounding their error. The majority appropriately concludes, therefore, that Wrinkles's counsel were deficient for failing to object to the use of restraints without justification.

After parting ways with the Indiana Supreme Court on the first prong of Strickland, however, the majority then relies on its strange interpretation of that Court's factual finding to conclude that Wrinkles was not prejudiced by his attorneys' failure to object. “Without evidence that the jurors saw the stun belt, or that he was otherwise affected by the stun belt throughout trial, Wrinkles cannot demonstrate prejudice.” FN4 Ante at 823. Constrained by the Indiana Supreme Court's finding that a number of jurors knew about the stun belt as well as the record evidence that the stun belt did indeed affect Wrinkles throughout trial, I would reach a different result.

FN4. I have already commented that the majority's interpretation of the Indiana Supreme Court's statements on this matter strains credulity. But, in the face of the juror affidavits admitted into the record, the majority's statement that Wrinkles is “without evidence” that jurors knew about (the more appropriate term than “saw”) the stun belt is wholly inaccurate. It has long been established that visible restraints are so prejudicial that they are permissible only where a “special need” is present. Deck, 544 U.S. at 626, 125 S.Ct. 2007; see Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986); Allen, 397 U.S. at 344, 90 S.Ct. 1057. Routine use of restraints is prohibited; their employment must be preceded by a judicial finding that an essential state interest such as physical security, escape prevention, or courtroom decorum requires the use of restraints on a particular defendant. See Deck, 544 U.S. at 628, 125 S.Ct. 2007. So “inherently prejudicial” are visible restraints, Holbrook, 475 U.S. at 568, 106 S.Ct. 1340, that no “actual prejudice” need be demonstrated by a defendant asserting a deprivation of due process based on their unjustified use, Deck, 544 U.S. at 635, 125 S.Ct. 2007.

Wrinkles's situation cannot be distinguished from the line of cases addressing visible restraints because the stun belt was “visible” in the only meaningful sense to any juror who was aware that he was restrained. See Roche v. Davis, 291 F.3d 473, 483 (7th Cir.2002). In this sense, the majority has seized upon yet another red herring, repeatedly referencing Wrinkles's inability to establish that the belt was “visible” or “seen.” See, e.g., ante at 806-07, 810, 811, 812 n. 3, 815-16, 819. But of course the prejudice caused by restraints stems from the jurors' knowledge of them, not their “visibility,” and the false distinction the majority weaves throughout its opinion is an unfortunate distraction.

Given the jurors' awareness of the belt, every type of prejudice that the Supreme Court has associated with the use of restraints is implicated in this case. First, the message sent by restraints-that the judicial system itself already believes the defendant to be uncontrollably dangerous-undermines the presumption of innocence. Deck, 544 U.S. at 630, 125 S.Ct. 2007. Although Wrinkles admitted to killing the victims, the jury had to decide what level of homicide he had committed, and the burden was on the state to prove that he committed knowing murder. The jury's decision on the level of homicide, as much as any other determination of guilt, could be tainted by their knowledge of the stun belt.

Second, physical restraints can interfere with the defendant's ability to participate in his own defense. Id. at 631, 125 S.Ct. 2007. The most obvious example of that in this case is when Wrinkles's attorney warned him not to “make any sudden moves” in response to Wrinkles asking where he should put his hands while testifying. This exchange came on the heels of an incident midway through trial when the belt began “buzzing.” The trial had to be halted as a result and the same belt was put back on Wrinkles after investigation revealed that the buzzing was caused by a low battery. No doubt this incident and the constant fear of an unannounced, unstoppable 50,000-volt shock impaired Wrinkles's ability to participate in his defense. Not surprisingly, Wrinkles's attorney described his client as “petrified” by the vibrations that accompanied the “buzzing” belt. Third, the dignity of judicial proceedings suffers when a participant is in restraints. Id. at 631-32, 125 S.Ct. 2007. That the trial had to be halted due to the belt's “buzzing” provides a stark example of this last concern.

The prejudice inflicted by restraints is particularly dangerous in a case such as this, where any one factor could have been decisive for the jury in both the guilt and penalty phases given the nature and strength of Wrinkles's defense. As appellate counsel explained, the use of the belt negated the entire theory of the defense: that Wrinkles was not a dangerous or violent person by nature but had “snapped” under extreme circumstances such as the bitter separation from his family, a recent involuntary commitment to a psychiatric facility, and a severe drug addiction. Indeed, sufficient evidence was adduced at trial to instruct the jury on voluntary manslaughter (which entails “sudden heat”) and reckless homicide in addition to knowing murder. Surely a presumption that Wrinkles was so dangerous as to require restraints would make a conviction for knowing murder more likely than it might have been based on the evidence alone. See Harrell, 672 F.2d at 637 (visible restraints “could instill in the jury a belief that the defendant is a dangerous individual who cannot be controlled, an idea that could be devastating to his defense.”) The prejudice was renewed during the sentencing phase, when the jurors who were aware of the stun belt had to decide whether to recommend death or imprisonment while believing Wrinkles was still violent and dangerous. Particularly where the mitigating factors far outnumbered the one aggravating factor allowing for the death penalty, see Roche, 291 F.3d at 484, the potential influence of the stun belt cannot be overstated. Accordingly, I must conclude that Wrinkles was prejudiced by the failure of his attorneys to object to the use of a stun belt.