Jeffrey A. Weisheit, Appellant (Petitioner Below)
State of Indiana Appellee (Respondent Below)
Argued: September 7, 2017
from the Clark Circuit Court Cause No. 10C01-1601-PC-1 The
Honorable Andrew Adams, Judge
ATTORNEYS FOR APPELLANT Stephen T. Owens Public Defender of
Indiana Kathleen Cleary John Pinnow Anne Murray Burgess
Deputy Public Defenders Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Kelly A. Loy Tyler G. Banks Deputy Attorneys
General Indianapolis, Indiana
Weisheit was convicted of the murders of two children as well
as arson. His convictions were affirmed on direct appeal. He
subsequently sought and was denied post-conviction relief,
alleging that both his trial and appellate counsel were
ineffective. We affirm the post-conviction court, finding
that although counsel made some mistakes, most of them do not
rise to the level of deficient performance pursuant to
Strickland, and in any case, Weisheit fails to
demonstrate that he was prejudiced.
and Procedural History
April 2010, Jeffrey Weisheit was living with his pregnant
girlfriend, Lisa Lynch, and her two children: eight-year-old
Alyssa and five-year-old Caleb. Weisheit was caring for the
children one night while his girlfriend worked. He bound and
gagged Caleb, set fire to the home, and fled the state. Both
children died in the fire.
located Weisheit in Kentucky. Weisheit resisted and officers
had to tase him to effect his arrest. Weisheit fell and hit
his head. He was taken to the hospital and diagnosed with a
2013, a jury convicted Weisheit of two counts of murder and
one count of Class A felony arson resulting in serious bodily
injury. The jury found the State had proven the alleged
aggravating circumstances- multiple murders and that each
child was under the age of twelve- beyond a reasonable doubt,
found the aggravators outweighed any mitigators, and
recommended the death penalty. The trial court sentenced
Weisheit accordingly, and this Court affirmed the convictions
and sentence on direct appeal. Weisheit v. State, 26
N.E.3d 3 (Ind. 2015) (unanimous opinion by David, J.).
sought post-conviction relief, alleging multiple instances of
ineffective assistance by trial and appellate counsel. The
trial court denied Weisheit's petition in November 2016.
Weisheit now appeals. Additional facts will be provided as
proceedings are civil proceedings in which a defendant may
present limited collateral challenges to a conviction and
sentence. Wilkes v. State, 984 N.E.2d 1236, 1240
(Ind. 2013). The defendant bears the burden of establishing
his claims by a preponderance of the evidence. Id.
The defendant must convince this Court that there is "no
way within the law that the court below could have reached
the decision it did." Stevens v. State, 770
N.E.2d 739, 745 (Ind. 2002).
argues that he received ineffective assistance of both trial
and appellate counsel. He faults trial counsel in six areas:
1) errors during the penalty phase of trial; 2) failures
regarding the admissibility of expert testimony; 3) failure
to appropriately question jurors; 4) failure to adequately
present evidence in support of suppressing pretrial
statement; 5) failure to object to opinion testimony about
the nature and origin of the fire; and 6) cumulative errors.
Weisheit faults appellate counsel for failing to sufficiently
identify objectionable jurors on direct appeal.
assistance of counsel claims are evaluated under the two-part
test articulated in Strickland v. Washington, 466
U.S. 668 (1984). To prevail, Weisheit must show: 1) that
counsel's performance was deficient based on prevailing
professional norms; and 2) that the deficient performance
prejudiced the defense. Ward v. State, 969 N.E.2d
46, 51 (Ind. 2012) (citing Strickland, 466 U.S. at
analyzing whether counsel's performance was deficient,
the Court first asks whether, "'considering all the
circumstances,' counsel's actions were
'reasonable [ ] under prevailing professional
norms.'" Wilkes, 984 N.E.2d at 1240
(quoting Strickland, 466 U.S. at 668). Counsel is
afforded considerable discretion in choosing strategy and
tactics, and judicial scrutiny of counsel's performance
is highly deferential. Id.
demonstrate prejudice, "the defendant must show 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." Strickland, 466 U.S. at 694.
is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment. Stevens, 770
N.E.2d at 746. Counsel is afforded considerable discretion in
choosing strategy and tactics and these decisions are
entitled to deferential review. Id. at 746-47
(citing Strickland, 466 U.S. at 689). Furthermore,
isolated mistakes, poor strategy, inexperience and instances
of bad judgment do not necessarily render representation
ineffective. Id. at 747 (citations omitted).
Errors during the penalty phase of trial
Failure to obtain Boys School Records and to prepare certain
Court and the United States Supreme Court have found that
capital defendants are entitled to adequate representation at
the penalty phase of trial. See Rompilla v. Beard,
545 U.S. 374, 382-93 (2005); Williams v. Taylor, 529
U.S. 362, 395-98 (2000); Smith v. State, 547 N.E.2d
817, 821-22 (Ind. 1989). "A decision by defense counsel
not to present evidence can be deemed reasonable only if it
is 'predicated on a proper investigation of the alleged
defense.'" Smith, 547 N.E.2d at 821
(quoting Thomas v. State, 242 N.E.2d 919, 924 (Ind.
first argues that he was denied effective assistance during
the penalty phase of trial because trial counsel did not
fully investigate and obtain pertinent mental health records.
Specifically, he faults counsel for not obtaining his records
from the Indiana Boys School. He points to the
post-conviction court's conclusion that these records
(which were obtained for the post-conviction hearing from the
Indiana Archives) contained valuable mitigation evidence that
was not provided to the jury. Weisheit also argues that had
these records been provided to experts, their testimony would
have been more compelling.
trial counsel requested the records, but received a response
from the Boys School that they were not available and that
pursuant to its document retention policy, documents from
that time period would have been destroyed. Nevertheless,
defense counsel found other documents and mental health
records and provided them to mental health experts.
Weisheit faults trial counsel for only making one attempt to
obtain the Boys School records, it does not seem that counsel
was deficient for not making multiple attempts given that
counsel was told by the Boys School that there was no match
for the records and that records over 10 years old were
destroyed, and counsel did obtain other mental health records
from other sources. Had counsel been told the records were
moved to the archives or even told they could not be located,
it would have made sense to fault counsel for not pursuing
them further. However, this is not the case. The dissent
believes that counsel should have followed up by calling the
Department of Correction because the Department noted in
response to the records request to "feel free to
contact" them with "[a]ny further questions."
However, in response to being told there was no match for the
requested records and further that records over 10 years old
would be destroyed, it's not clear what "further
questions" there are to ask at that point. Nor can we
say that if counsel called that they would have been told
that the records were, in fact, available elsewhere or been
given any other new information. All the information pointed
to the records not being available from the Boys School.
also faults counsel for not providing these records to some
of the testifying witnesses (Dr. Henderson-Galligan- licensed
psychologist and Deborah Eccles-Skidmore- Weisheit's Boys
School counselor) because if they had the records and were
prepared using them, they would have been more compelling
mitigation witnesses. While perhaps this is the case, it is
not clear that counsel's performance was deficient by not
preparing witnesses in a more ideal or preferred way.
Weisheit's best claim in this regard is that counsel
failed to appropriately prepare Eccles-Skidmore by failing to
inform her that she would be subject to cross-examination.
Counsel should have done at least that much.
even assuming counsel was deficient in failing to
appropriately prepare Eccles-Skidmore, Weisheit has not
demonstrated prejudice. During trial, counsel did present
evidence of Weisheit's mental health struggles throughout
his life and his various mental health diagnoses. For
instance, Boys School counselor Eccles-Skidmore, testified
that Weisheit was in the Boys School for a time, attempted
suicide while there, and was admitted to Methodist Hospital
as a result. Defense witness, Dr. Price, reviewed records
from throughout Weisheit's life, including academic
records, hospital and other medical records, police records,
prior psychotherapy records, prior evaluation records, etc.
He also personally evaluated Weisheit on four different
occasions. Dr. Price testified regarding the history of
mental illness in Weisheit's family, Weisheit's
history of brain/head injuries, and his diagnoses that
Weisheit had bipolar disorder not otherwise specified (NOS),
attention deficient hyperactivity disorder (ADHD),
predominant hyperactive impulse and cognitive disorder NOS.
He also testified that he disagreed with Dr. Allen (the
State's expert) that Weisheit did not meet the diagnostic
criteria for bipolar disorder and explained why he disagreed.
Henderson-Galligan, who was initially appointed by the trial
court to do a competency evaluation, met with Weisheit on two
occasions and reviewed his background and mental health
records including both Dr. Price and Dr. Allen's reports.
She testified that Weisheit was competent to stand trial and
further, she diagnosed him with bipolar disorder NOS,
cognitive disorder NOS and personality disorder NOS with
Cluster B characteristics. During the post-conviction
hearing, Dr. Henderson-Galligan testified that while the
missing records contained significant information, nothing in
those documents conflicted with her opinion at trial.
points to arguments the State made during its closing wherein
it downplayed the impact of his mental illness and argued
that he was a manipulator. He argues that with the additional
information contained in the Boys School records, he could
have forcefully countered those arguments. He also argues
that counsel could have used information from the records to
argue that Weisheit was suffering from a psychotic break at
the time of the murders.
looking at the record, Weisheit's trial counsel did, in
fact, make arguments about Weisheit's significant history
of psychological problems since childhood and possible mania
at the time of the murders. Counsel pointed to Weisheit's
records that are "rife with suicide attempts,
depression, medication. . ." and the fact that during
childhood he was never "totally adequately
treated." (Tr. 2560.) When discussing Weisheit's
mental health, counsel stated that "at some point a
major disruption occurs which pushes one over the edge. . .
to what we call acute mania." (Tr. 2562.) "In this
case, it happened with tragic results." (Tr. 2562-63.)
Accordingly, despite not having the aid of the Boys School
records, counsel was able to present a rather complete
picture of Weisheit's mental health at trial.
as the State notes, Weisheit's Boys Schools records
contained information that was potentially prejudicial to
Weisheit, including multiple references to Weisheit's
lack of remorse and records containing descriptions of
Weisheit's poor behavior that led to several juvenile
adjudications. For instance, Weisheit had adjudications for
burglaries, auto theft, running away, fighting, making
threats, stealing weapons and other misbehavior at school.
The records also make reference to Weisheit's lack of
remorse for his behavior and his cruelty to animals. It is
not clear that introduction of these additional records would
have helped Weisheit. Accordingly, Weisheit has not
demonstrated that counsel was ineffective by not obtaining
the records or using them to prepare witnesses.
Failure to call witnesses
also faults trial counsel for not calling certain witness,
including Dr. Harvey, an expert retained by the defense, and
Dr. Gur, an expert regarding Weisheit's traumatic brain
Harvey performed a mental health assessment of Weisheit in
2010. After that assessment, Dr. Harvey's terms of
employment changed, and he no longer had direct contact with
individuals in forensic cases. Dr. Harvey stated he could
testify only as to his prior assessment and offered to find
someone else who could do a future assessment. Dr. Harvey
sent counsel a memorandum reporting his observations during
his 2010 meeting with Weisheit and detailing his impressions
of Weisheit's mental health. The defense team did not
pursue further services from Dr. Harvey, but instead, engaged
another psychologist (Dr. Price), who received Dr.
Harvey's memorandum, incorporated it into his own
assessment, and testified at trial.
argues that ". . . Dr. Harvey would have tipped the
balance for the jury or sentencing court from finding no
mitigating circumstances to finding they existed."
(Appellant's Brief at 42.) He believes Dr. Harvey's
testimony regarding his first-hand observation of Weisheit in
a manic state was crucial to rebut the State's evidence
and secure a different sentence. However, as discussed above,
even without Dr. Harvey's testimony about the instance of
mania he observed, trial counsel did in fact present evidence
of Weisheit's bipolar diagnosis and possible mania at the
time of the murders. Further, Dr. Price reviewed Dr.
Harvey's report prior to serving as a testifying witness.
Counsel was not ineffective for not pursuing further services
from Dr. Harvey after he contacted counsel, told counsel he
could not do future evaluations and indicated he would
recommend his replacement. Further, even though counsel
mistakenly believed Dr. Harvey could not testify about his
prior assessment, Weisheit was not prejudiced because another
expert capably testified about Weisheit's mental health
Gur, a neuropsychologist with expertise in brain injury and
behavior, testified at Weisheit's PCR hearing regarding
how the multiple brain injuries Weisheit incurred would have
exacerbated his mental health conditions. Weisheit argues
that counsel was ineffective for not presenting this evidence
at trial. However, because Dr. Gur could not point to medical
evidence of Weisheit's alleged brain injuries and another
expert disagreed with his conclusion, Weisheit is asking this
Court to reweigh the evidence on this issue which we will not
post-conviction court determined that evidence of
Weisheit's injuries was available to trial counsel, and
counsel's failure to further investigate the injuries and
their effects was unreasonable. However, the court found that
even at the post-conviction hearing, Weisheit presented no
conclusive medical evidence that he actually suffered from
traumatic brain injuries or the other effects Dr. Gur
suggested could result from such injuries.
agree that the evidence of Weisheit's brain injuries is
speculative. Dr. Gur admitted that just because someone has
hit their head, even multiple times, this does not
necessarily mean they suffer a concussion and further, that
even sustaining a concussion does not guarantee permanent
brain injury. He further admitted that he did not interview
Weisheit; his opinion that Weisheit suffered from concussions
was largely based on Weisheit's self-reports and he could
not point to medical records that documented each of the
alleged concussions or other traumatic brain injury. His
testimony was significantly undermined when he stated that it
"seems like" Weisheit suffered from concussions.
(PCR Tr. Vol. I. at 95.) Thus, it is not clear how reliable
or helpful Dr. Gur's testimony would have been during
another expert, Dr. Westcott, disagreed with Dr. Gur that
Weisheit sustained traumatic brain injuries. She testified
that while there were instances where Weisheit suffered
injury to his head, there was no medical evidence to show he
had concussions or traumatic brain injuries, except for the
instance where he hit his head when he was tased during his
arrest for the present crimes.
Weisheit has failed to show a reasonable likelihood of a
different outcome had either Dr. Harvey or Dr. Gur testified.
Dr. Price testified in Dr. Harvey's place and the utility
of Dr. Gur's testimony is questionable at best.
Failures regarding the admissibility of expert
trial, counsel intended to call James Aiken, a former prison
warden and consultant, to testify that Weisheit could be
adequately managed and secured under a life sentence without
presenting danger to prison staff, other inmates, or the
public. Aiken's testimony was not presented, however,
because the trial court found he was not qualified as an
expert under Indiana Evidence Rule 702(b) and counsel
withdrew him. On direct appeal, this Court affirmed the
exclusion of Aiken's testimony because Aiken's
proposed opinion concerned Weisheit's future adjustment
to prison, and counsel neither established Aiken's
qualifications to predict future behavior, nor did he make an
offer of proof as to Aiken's specific predictions of
Weisheit's potential future classification in prison.
See Weisheit, 26 N.E.3d at 10.
now argues that counsel was ineffective for failing to point
the trial court to the correct rule of evidence-702(a)-under
which Aiken would have qualified as an expert. The
post-conviction court agreed that the trial court erred in
excluding Aiken's testimony under 702(b), and found Aiken
was qualified under 702(a). It further found that "[h]ad
the jury heard this mitigating evidence, there is a
reasonable likelihood the jury would have given
Weisheit's case for mitigation greater weight and
returned a verdict for something less than death." (PCR
Order at 14.) Nevertheless, despite making such a strong
statement, the court found that Weisheit did not demonstrate
prejudice and denied his ineffective assistance claim.
contradictory statements in its order, the post-conviction
court came to the correct conclusion. As the State points
out, even assuming Aiken could qualify under 702(a), it is
not clear that he actually would have been allowed to
testify. The trial court is not required to accept the
opinion of experts. Wilkes v. State, 917 N.E.2d 675,
690 (Ind. 2009) (citing Thompson v. State, 804
N.E.2d 1146, 1149 (Ind. 2004)).
case, with regard to his preparation to serve as an expert
witness, Aiken testified that he spent just 30 to 45 minutes
with Weisheit the night prior to appearing in court and that
he reviewed Weisheit's prison records provided by counsel
and some annual reports online. He did not use any structure
or assessment tool when evaluating Weisheit. He struggled to
answer the trial court's questions about his training and
experience. He admitted he had not reviewed anything
regarding how an Indiana prison would house an inmate
convicted of murdering children. It is speculative to say
Aiken's testimony would have been admissible.
even if Aiken had testified, the prior prison records of
Weisheit undercut Aiken's claims and demonstrate
Weisheit's propensity for violence and odd behavior.
Thus, Aiken would not have aided his mitigation cause. For
instance, 35 incident reports were filed regarding Weisheit
from April 2010 to May 2011. Incidents include Weisheit
threatening to kill an EMT who was dispensing medication,
threatening officers and challenging them to fight him,
threatening other inmates, destroying several pieces of jail
property, urinating in the hallway and concealing
"multiple, sharp chicken bones" in his mouth during
a search. (PCR Exhibit L.) Accordingly, it is not clear that
Aiken's testimony would have been given great weight and
that there's a reasonable probability that the outcome
would have been different had Aiken testified.
Failure to appropriately question jurors
Code Section 35-50-2-9(e) states that the jury in a capital
case "shall recommend to the court whether the death
penalty or life imprisonment without parole, or neither,
should be imposed." See Wrinkles v. State, 749
N.E.2d 1179, 1198 (Ind. 2001) (statute requires that the jury
be instructed as to all three possible penalties). Qualified
jurors must be willing to consider all of the possible
penalties. Burris v. State, 465 N.E.2d 171, 177
(Ind. 1984). This principle flows from United States Supreme
Court jurisprudence, which requires that jurors in capital
cases must be willing to follow the law (including
instructions indicating all of the possible penalties) and
must be excused if their personal views of the death penalty
(whether pro or con) "would prevent or substantially
impair" their ability to follow their oath and the law.
Ritchie v. State, 875 N.E.2d 706, 726-27 (Ind. 2007)
(quoting Wainwright v. Witt, 469 U.S. 412, 420
(1985)); see also Greene v. Georgia, 519 U.S. 145,
146 (1996) ("Witt is the controlling authority
as to the death-penalty qualification of prospective
jurors.") (internal quotation and citation omitted);
Adams v. Texas, 448 U.S. 38, 45 (1980) (Jurors must
be excused if their views on the death penalty "would
prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his
oath."); Witherspoon v. Illinois, 391 U.S. 510,
presumed that jurors follow their instructions.
Richardson v. Marsh, 481 U.S. 200, 206-07 (1987).
Here, the jury was instructed on death, life imprisonment
without parole, and a term of years as the three sentencing
options. Nevertheless, Weisheit alleges that counsel's
performance was deficient when, during voir dire, counsel did
not ask five jurors if they would be willing to consider a
term of years as a sentencing option if they found Weisheit
or potential jurors were asked in their questionnaires about
their thoughts about a sentence of a term of years for a
person convicted of intentionally murdering children. The
responses for the five jurors at issue were as follows:
Juror 7: "I would feel justice was not truly served and
a dangerous person could be set free."
Juror 15: "He should never get out."
Juror 75: "Should include 'without the possibility
Juror 160: "Is not appropriate for crime."
Juror 167: "I don't think this is a fair sentence
especially if they are guilty of murder."
(PCR Ex. 9- Exhibit Supp. 1 & 2.)
alleges that trial counsel did not follow up and ask the
jurors if they would follow the law and consider one of the
three possible sentencing options and that he was prejudiced
by this because jurors went into the trial rejecting a term
of years as a possible sentence.
on this Court's decision in Wilkes v. State, 984
N.E.2d 1236, 1240 (Ind. 2013), the post-conviction court
determined it was reasonable for counsel's strategy to
focus on identifying and screening those jurors that would
automatically vote for the death penalty. The court found
answers on the preliminary jury questionnaire did not
establish prejudice by showing a reasonable likelihood of a
different outcome in the penalty phase, and Weisheit
presented no evidence that any juror indicated he or she
would not fully consider a term of years sentence.
agree. First, Weisheit has not identified any duty or
requirement that trial counsel had to ask specific questions
of jurors for them to be qualified. Additionally, despite
their responses on the questionnaires, several of these
jurors said that they would look at all the evidence and
mitigators when determining punishment, that they would have
an open mind, etc. Juror 7 agreed that the death penalty is
not always the right thing to do and that such a sentence
depends on the facts and circumstances of an individual case.
Juror 15 stated she would consider mitigation evidence
including mental health status when deciding an appropriate
sentence. Juror 75 was instructed about the different
sentencing options and was told "death is
different." (Tr. 646.) He was told about the State's
burden to prove aggravating circumstances to support a death
sentence. He did not say much about his view of the death
penalty; however, he said nothing that would indicate he
would not consider a term of years. Juror 160 stated she
would weigh the evidence and that she couldn't say she
had any particular feelings about the death penalty one way
or the other. She would weigh the evidence presented. She
also stated she would not take the decision lightly. Finally,
Juror 167 stated twice that she would keep an open mind.
was not deficient for not further questioning the five jurors
at issue because they are presumed to follow the law, counsel
was not required to ask certain questions, the jurors were in
fact instructed and asked about the three sentencing options,
and none of them said anything during voir dire to indicate
they would not consider a term of years. The term of years
option was repeatedly mentioned throughout trial.
the jury's verdict was unanimous and of course, a child
murderer would not engender much sympathy from a jury,
despite defense counsel asking about sentencing options.
Accordingly, Weisheit cannot demonstrate prejudice. His
ineffective assistance of counsel claims related to the
questioning of the jurors fail.
Failure to adequately present evidence in support of
suppressing pretrial statement
suffered injuries, including a concussion, during his arrest
and was hospitalized. During that time, he was interviewed by
police and gave a statement indicating that he was the last
person to see the children alive. That is, he stated that he
left the children in the home because he did not want them
with him, and just started driving. He did not know if he set
the fire or how the fire started. Before giving the
statement, the officer read Weisheit his Miranda
rights and he indicated he understood them. The officer did
not ask if Weisheit was waiving his rights, and though she
had a waiver of rights form, Weisheit "[d]idn't seem
to acknowledge it as far as [ ] wanting to sign it."
(PCR Ex. Vol. III at 52.) The police then questioned Weisheit
until he asked for a lawyer.
counsel moved to suppress the statement on the basis that
Weisheit did not knowingly, intelligently, and voluntarily
waive his Miranda rights. At the hearing on the
motion to suppress, trial counsel focused on Weisheit's
medical condition at the time of the interview. The trial
court denied the motion to suppress, and this Court affirmed
on direct appeal. See Weisheit, 26 N.E.3d at 18.
Weisheit now argues that failure to introduce the
officer's testimony about his response (or lack of
response) to the waiver form was deficient performance.
post-conviction court agreed that the officer's testimony
would have supported an argument that Weisheit's
Miranda waiver was invalid, which trial counsel (and
appellate counsel) did not make. But the court credited trial
counsel's testimony at the post-conviction hearing that
this omission was strategic, because counsel knew that a
waiver could not be invalid solely based on lack of a written
waiver. (PCR Order at 32-34 (citing, e.g., Berghuis v.
Thompkins, 560 U.S. 370, 384-86 (2010)). The court also
found Weisheit had not shown a reasonable likelihood of a
different outcome had counsel made the argument below.
argues the post-conviction court's conclusions were
erroneous. Citing to Mendoza-Vargas v. State, 974
N.E.2d 590, 595 (Ind.Ct.App. 2012), he argues that his not
wanting to sign the acknowledgement form was akin to his
refusal to waive his rights. However, the validity of a
waiver is judged by the totality of the circumstances.
Berghuis, 560 U.S. at 384. In
Mendoza-Vargas, a defendant who spoke Spanish shook
his head no when he was asked if he wanted to answer
questions after being given his Miranda rights.
Mendoza-Vargas, 974 N.E.2d at 593. Nevertheless,
police continued to question him. Id. In contrast,
here, while Weisheit did not seem to want to sign the form,
his conduct indicated that he wanted to answer police
questions. As we noted on direct appeal, he selectively
feigned sleep based on the subject matter of the questions
but was otherwise responsive and the interview, which was
brief in duration, ceased when Weisheit asked for an
attorney. Weisheit 26 N.E.3d at 18. Thus, counsel
was not deficient for not raising the issue of Weisheit
seeming to not want to sign the waiver form because it is not
clear that such a challenge would have been successful in
light of the totality of the circumstances which showed
Weisheit's willingness to speak with police initially.
as the State notes, at the time police spoke to Weisheit,
they did not know where at least one of the child victims
was. Thus, police were authorized to speak to Weisheit and
his statements would have been admitted into evidence
pursuant to the public safety exception.
in light of the overwhelming evidence of Weisheit's
guilt, Weisheit has failed to show a reasonable likelihood
that the outcome of trial would have been different had the
statement not been admitted.
Failure to object to opinion testimony about the nature and
origin of the fire
trial, the State offered three witnesses who testified about
the nature and origin of the fire. The assistant chief of the
local fire department, who was at the scene, opined the fire
was intentionally set. The state fire marshal who
investigated the fire opined the fire was intentionally set.
The lead detective on the case testified it was her opinion
the fire was intentionally set by Weisheit.
post-conviction court found these opinions were inadmissible
and would have been excluded had an objection been made. (PCR
Order at 36.) (citing Ind. Evid. R. 704(b), "Witnesses
may not testify to opinions concerning intent, guilt or
innocence in a criminal case . . . or legal
conclusions.")) The court found counsel's failure to
object was deficient performance because no strategy
supported it, counsel did not object because he was not the
questioning attorney, and he thought co-counsel should have
objected. But the post-conviction court ultimately found no
prejudice, because substantial other evidence-like
Weisheit's flight after the fire and one child's
condition of being bound and gagged-supported the conclusion
Weisheit intentionally started the fire.
State argues that the post-conviction court erred because the
assistant fire chief's and the fire marshal's
opinions were properly admitted. The State is correct that
expert testimony regarding the cause of a fire (that does not
tie the defendant to the fire) does not run afoul of Evidence
Rule 704(b). See Julian v. State, 811 N.E.2d 392,
399-400 (Ind.Ct.App. 2004), trans. denied. (state
fire marshal's opinion that fire was intentionally set
was admissible where testimony did not reference defendant).
Accordingly, counsel was not deficient for not objecting to
the admission of the fire chief and fire marshal's
the lead detective's testimony, as the State notes, this
testimony was elicited on cross by the State in response to
the defense's direct wherein the defense questioned the
thoroughness of the detective's investigation. While
defense counsel arguably could have objected, it is not clear
such an objection would be sustained because defense counsel
may have opened the door. Weisheit does not challenge the
appropriateness of his trial counsel's strategy to
challenge the detective's thoroughness.
case, even if counsel was deficient for not objecting to
and/or opening the door to the detective's testimony,
Weisheit has not demonstrated prejudice. As the
post-conviction court aptly noted, this expert testimony was
"not nearly as persuasive as Weisheit's actions
before, during, and after the crime." (PCR Order at 37.)
trial errors that do not justify reversal when taken
separately also do not justify reversal when taken together.
Smith, 547 N.E.2d at 819. However, in the context of
ineffective assistance of counsel, a reviewing court also
assesses whether "the cumulative prejudice accruing to
the accused" as a result of counsel's errors has
"rendered the result unreliable, necessitating reversal
under Strickland's second prong."
Id. at 819-20 (internal citations omitted).
faults trial counsel on many grounds as discussed above.
Also, this Court notes that in the post-conviction
court's findings of fact, it was critical of trial
counsel in several ways. For instance, it was critical of
counsel's failure to: adequately prepare witnesses,
undertake better efforts to get Aiken's testimony
admitted, investigate Weisheit's alleged traumatic brain
injuries and their effects, and object to testimony about the
ultimate cause of the fire, among other things. However,
despite these findings, the post-conviction court's
conclusions of law were that there was no ineffective
assistance of counsel.
agree that counsel made errors and could have done things
differently or better. Nevertheless, as discussed above,
these errors do not rise to the level of deficient under
Strickland. Further, even assuming counsel was
deficient, Weisheit has not demonstrated prejudice. Indeed,
he has not shown that he would be given a different sentence
even if counsel had committed none of the alleged errors in
light of the nature of this particular crime- the murder of
two small children-and the overwhelming evidence of his
failure to identify objectionable jurors on appeal
standard for gauging appellate counsel's performance is
the same as that for trial counsel. Ward, 969 N.E.2d
at 75. "Claims of inadequate presentation of certain
issues . . . are the most difficult for convicts to advance
and reviewing tribunals to support." Biegler v.
State, 690 N.E.2d 188, 195 (Ind. 1997). Here, Weisheit
contends his appellate counsel performed deficiently
"when he did not cite in the Brief of Appellant the
clearest expression that Juror 7 would automatically vote for
the death penalty." (Appellant's Br. at 71.) That
is, during voir dire, Juror 7 was presented with the
Murder of two children, eight and five, and an arson. No
defenses, no mental illness that would excuse it, no
retardation that would excuse it, no drugs, no alcohol
defenses that you would consider, just kind of stone
cold-blooded killer of two innocent children. Is the death
penalty the only appropriate penalty for that kind of guilty
(Tr. 141.) And Juror 7 responded: "In that hypothetical
situation, yes, I believe so." (Id.) Appellate
counsel did not cite this portion of the transcript. Instead
he quoted the following interaction between trial counsel and
MR. McDANIEL: And I think in your - again, going back to the
magic questionnaires here. You indicated you thought the
death penalty was appropriate if it was premeditated,
multiple murderer, particularly gruesome, and the victims
suffered or were tortured. That would be, I think, what you
JUROR NO. 7: Yes, sir.
MR. McDANIEL: And that would still be your opinion today; is
JUROR NO. 7: Yes, sir.
MR. McDANIEL: And does that sound like the hypothetical facts
that we were talking about here?
JUROR NO. 7: Very similar, yes.
MR. McDANIEL: All right. And I think that you indicated that
you somewhat agree with eye for an eye. And even though
that's a very common saying, let me ask what's that
mean to you, the eye for the eye?
JUROR NO. 7: Well, it means that if you take someone
else's life, you shouldn't be allowed the privileges
of continuing your own.
Weisheit now prefers a different quotation than the one cited
in his appellate brief, it is not clear that there is a
significant difference between the two. In each passage,
Juror 7 states a strong preference for the death penalty
under facts like the one of this case. But the hypotheticals
discussed by counsel during voir dire, are just that,
hypotheticals. As discussed above, Juror 7 also stated during
voir dire that the death penalty is not always the right
thing to do and that such a sentence depends on the facts and
circumstances of an individual case. Juror 7 was not
presented with all the facts at the time the quoted
statements were made.
appellate counsel not cited either quotation, perhaps we
would be in a different situation. But as it stands, counsel
provided significant relevant information about Juror 7's
views that appears on the same page as the quote Weisheit
prefers. In any case, this Court in reaching its decision is
not limited to only what the parties discuss and cite in
their briefs. Instead, we "review relevant portions of
the record" thoroughly and "often decide cases
based on legal arguments and reasoning not advanced by either
party." See Bieghler v. State, 690 N.E.2d 188,
195 (Ind. 1997.) The language quoted by the parties is only
the starting place for our review and decision-making. Thus,
we cannot say that counsel was deficient for not choosing a
particular quotation that appears on the same page of the
transcript as language that was in fact quoted, nor can
Weisheit claim prejudice as a result of counsel's
decision to include different language in the brief.
Accordingly, Weisheit's ineffective assistance of counsel
claim as to his appellate counsel fails.
Weisheit's trial counsel made mistakes and could have
done things better, counsel's performance was not
deficient. In any case, Weisheit has not demonstrated that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. Accordingly, Weisheit's ineffective
assistance of trial counsel claims fail.
ineffective assistance of appellate counsel claim also fails
because appellate counsel's performance was not
deficient. Counsel made a reasonable decision to quote
certain language from the transcript although it is not
Weisheit's preferred quotation. Further, given the
similarities between the language chosen and the language not
chosen and this Court's thorough review of relevant
portions of the record, Weisheit has not demonstrated
we note that in the post-conviction court's 81-page
order, some of its findings seem to contradict its ultimate
conclusions. However, after an exhaustive review of the
record and in light of our standard of review that requires
us to affirm the post-conviction court unless there's no
way within the law it could have come to the result it did
(Stevens, 770 N.E.2d at 745), we believe the
post-conviction court came to the right conclusion on all
issues. Thus, we affirm the post-conviction court.
and Goff, JJ., concur.
C.J. concurs in part and dissents in part with separate
Slaughter, J., concurring in part and in the judgment.
with the Court that Weisheit is not entitled to
post-conviction relief, and that the trial court's
judgment upholding his convictions and death sentence should
be affirmed. But I reach that result for different reasons.
Unlike the Court, I conclude that trial counsel's
performance during the penalty phase was deficient, but that
Weisheit failed to show prejudice.
performance issue, I share the dissent's view that
Weisheit's trial counsel were deficient during sentencing
for all the reasons the Chief Justice outlines in her
thoughtful and thorough opinion. Counsel's performance
was indeed substandard and not the product of reasonable
professional judgment or strategic choice in three respects:
failure to pursue the Boys School records, failure to call
Dr. Harvey about testifying for Weisheit, and failure to lay
a proper foundation and make a clear offer of proof for
issue of prejudice, the dissent concludes-and I agree-that
none of counsel's "omissions, in isolation, is
prejudicial enough to warrant relief". But where the
dissent and I part company is the Chief Justice's view
that Weisheit was prejudiced by counsel's
cumulative deficiencies. She believes these
deficiencies collectively undermine confidence in the
legality of Weisheit's death sentence. I respectfully
disagree. In my view, Weisheit did not sustain his burden
under Strickland. He failed to show a
"reasonable probability" that, had counsel