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Weisheit v. State

Supreme Court of Indiana

November 7, 2018

Jeffrey A. Weisheit, Appellant (Petitioner Below)
State of Indiana Appellee (Respondent Below)

          Argued: September 7, 2017

          Appeal from the Clark Circuit Court Cause No. 10C01-1601-PC-1 The Honorable Andrew Adams, Judge

          On Direct Appeal

          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


          David Justice.

         Jeffrey 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.

         Facts and Procedural History

         In 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.

         Police 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 concussion.

         In 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.).

         Weisheit 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 necessary.

         Standard of Review

         Post-conviction 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).


         Weisheit 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.

         Ineffective 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 687).

         In 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.

         To 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.

         There 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).

         A. Trial Counsel

         1. Errors during the penalty phase of trial

         a. Failure to obtain Boys School Records and to prepare certain experts

         This 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. 1969)).

         Weisheit 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.

         Here, 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.

         While 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.

         Weisheit 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.

         However, 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.

         Dr. 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.

         Weisheit 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.

         However, 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.

         Finally, 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.

         b. Failure to call witnesses

         Weisheit 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 injuries.

         Dr. Harvey

         Dr. 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.

         Weisheit 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 conditions.

         Dr. Gur

         Dr. 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 do.

         The 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.

         We 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 trial.

         Further, 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.

         In sum, 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.

         2. Failures regarding the admissibility of expert testimony

         At 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.

         Weisheit 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.[1] 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.

         Despite 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)).

         In this 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.

         Further, 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.

         3. Failure to appropriately question jurors

         Indiana 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, 522 (1968).

         It is 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 guilty.

         Jurors 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 of parole.'"
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.)

         Weisheit 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.

         Relying 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.

         We 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.

         Counsel 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.

         Further, 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.

         4. Failure to adequately present evidence in support of suppressing pretrial statement

         Weisheit 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.

         Trial 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.

         The 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.

         Weisheit 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.

         Further, 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.

         Finally, 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.

         5. Failure to object to opinion testimony about the nature and origin of the fire

         At 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.

         The 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.

         The 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 statements.

         As for 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.

         In any 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.)

         6. Cumulative errors

         Generally, 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).

         Weisheit 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.

         We 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 guilt.

         B. Appellate Counsel

         Counsel's failure to identify objectionable jurors on appeal

         The 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 following scenario:

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 murder?

(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 Juror 7:

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 wrote down.
JUROR NO. 7: Yes, sir.
MR. McDANIEL: And that would still be your opinion today; is that right?
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.

(Tr. 141-42.)

         While 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.

         Had 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.


         While 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.

         Weisheit's 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 prejudice.

         Finally, 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.

          Massa and Goff, JJ., concur.

          Rush, C.J. concurs in part and dissents in part with separate opinion.

          Slaughter, J., concurring in part and in the judgment.

         I agree 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.

         On the 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 Aiken's testimony.

         On the 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 ...

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