Following final affirmance of his convictions on three counts of murder, and his sentences of death on two counts and 60 years' imprisonment on remaining count, 580 N.E.2d 214, petitioner sought post-conviction relief. The Marion Superior Court, James K. Coachys, Special Judge, denied petition, and petitioner appealed. The Supreme Court, Dickson, J., held that: (1) evidence in post-conviction proceeding established that no improper communication occurred between jury and bailiff during deliberations in underlying prosecution; (2) report prepared by state psychologist had been available to petitioner through exercise of reasonable diligence prior to trial; (3) jury was clearly instructed to acquit in presence of reasonable doubt; (4) post-conviction evidence established that petitioner's confession had been voluntary, reliable, and not product of coercion or misconduct; (5) petitioner's trial counsel was not ineffective; (6) petitioner's appellate counsel was not ineffective; (7) post-conviction evidence was insufficient to support claim of entitlement to presumption of ineffective assistance; (8) mental health evaluations of petitioner ordered and funded by trial court were adequate; (9) petitioner's challenges to constitutionality of death penalty system did not allege fundamental error; and (10) accumulation of errors throughout prosecution, conviction, and sentencing did not constitute fundamental error. Affirmed.

DICKSON, J.

The defendant-appellant, Kevin Conner, appeals the denial of his petition for post-conviction relief. On October 7, 1988, he was convicted of the January 26, 1988, murders of Steven Wentland, Tony Moore, and Bruce Voge at Indianapolis. The jury recommended the death penalty for the murders of Moore and Voge. The trial court ordered the death penalty for these murders and sentenced the defendant to sixty years imprisonment for the murder of Wentland. We affirmed in Conner v. State, 580 N.E.2d 214 (Ind.1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1501, 117 L.Ed.2d 640 (1992). The defendant then sought post-conviction relief. Upon the post-conviction court's denial of post-conviction relief, the defendant instituted this appeal.

The defendant claims thirteen errors, which we regroup into ten topics: (1) ex parte communication to the jury; (2) non-disclosure of exculpatory evidence; (3) jury instructions; (4) admission of confession; (5) assistance of trial and appellate counsel; (6) mental health evaluations; (7) constitutionality of Indiana's death penalty statute; (8) exclusion of evidence at the post-conviction hearing; (9) cumulative effect of claimed errors as violation of due process; and (10) propriety of the death sentence.

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Assistance of Counsel at the Penalty and Sentencing Phases In challenging the assistance of counsel at the penalty and sentencing phases, the defendant contends that trial counsel failed to conduct a reasonable penalty phase investigation, to provide the jury with any meaningful explanation of the crimes, and to present available mitigating evidence of the defendant's childhood traumas, mental disabilities, and intoxication.

The record indicates that in the penalty and sentencing phases defense counsel's strategy was to humanize the defendant, an appropriate strategic decision. Defense counsel presented opening and closing arguments and testimony from several witnesses in order to present evidence of the defendant's background, including alcohol, drug, and family problems, his relationships, his good qualities, his employment history, and his relatively minor criminal history.

Defense counsel also conducted cross-examination, objected to the admission of evidence, and identified mitigating circumstances. Defense counsel requested funds and identified corrections for the pre-sentence report.

We conclude that the evidence does not lead unerringly and unmistakably to a result contrary to that reached by the post-conviction court in rejecting the defendant's claim of ineffective assistance of counsel at the penalty and sentencing stages.

The defendant also contends that trial counsel provided ineffective assistance when they argued that the death penalty should not be imposed so that the defendant could give back to society. During part of their summation in the penalty phase, the defense counsel argued that the defendant's life should be preserved so that experts could study him scientifically to discover how he worked and why people commit such crimes.

The defendant cites two federal circuit court cases for the proposition that asking the jury to spare the defendant's life in order to study him constitutes ineffective assistance. Wade v. Calderon, 29 F.3d 1312, 1324 (9th Cir.1994), cert. denied, 513 U.S. 1120, 115 S.Ct. 923, 130 L.Ed.2d 802 (1995); Waters v. Zant, 979 F.2d 1473, 1497 (11th Cir.1992), vacated in part sub nom. Waters v. Thomas, 46 F.3d 1506 (11th Cir.1995), cert. denied sub nom Waters v. Thomas, 516 U.S. 856, 116 S.Ct. 160, 133 L.Ed.2d 103. Neither of these opinions supports the defendant's argument. [FN4] Arguing that the defendant's life *1252 should be spared in order to provide opportunities for study does not necessarily constitute ineffective assistance. Rather, such an argument could be a reasonable strategy in making the best argument in a hard case.

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The defendant claims that the post-conviction court erred in rejecting his claim that the trial court used an invalid aggravator to impose the death penalty, failed to enter a proper sentencing order, and improperly failed to consider certain mitigators.

The post-conviction court noted that, on direct appeal, this Court had previously reviewed and affirmed the trial court's findings and death penalty decision, and it further found that no additional evidence presented in the post-conviction proceedings indicated that the trial court's findings or judgment were erroneous or inadequate.

In the defendant's direct appeal, we held that, "[i]n reviewing the record of the penalty phase of the trial as well as the court's sentencing order, we hold that the trial court properly considered both aggravating and mitigating circumstances and properly imposed the death penalty in accordance with the Indiana act." Conner, 580 N.E.2d at 221. Finding no compelling argument presented to justify departure from our well-established rules regarding forfeiture and res judicata, we hold that the post-conviction court was correct in denying relief on this claim.

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

Conner v. Anderson, 259 F.Supp.2d 741 (S.D. Ind. January 15, 2003) (Habeas).