David, J.
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 postconviction 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.
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.
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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.).
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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.
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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).
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A. Trial Counsel
1. Errors during the penalty phase of trial
a. Failure to obtain Boys School Records and to prepare certain experts
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. …
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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. …
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. … 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. …
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… 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.
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.” 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. … Weisheit was not prejudiced because another expert capably testified about Weisheit’s mental health conditions.
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.
… 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. … 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. …
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. …
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. 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.” 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)).
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… 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) … Qualified jurors must be willing to consider all of the possible penalties. Burris v. State, 465 N.E.2d 171, 177 (Ind. 1984). …
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.
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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. …
Trial counsel moved to suppress the statement on the basis that Weisheit did not knowingly, intelligently, and voluntarily waive his Miranda rights. … 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. … The court also found Weisheit had not shown a reasonable likelihood of a different outcome had counsel made the argument below.
… 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. … 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.
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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.” …
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.” …
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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
… 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.”
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… 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.
… 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.
Conclusion
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. … 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.
Slaughter, J. concurs in part and in the judgment with separate opinion. 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 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.
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… I agree that trial counsel were not constitutionally ineffective during the penalty phase. The post-conviction court was right to deny Weisheit relief. I join the Court’s opinion affirming his convictions, and I concur in its judgment affirming his sentence.
Rush, C.J., concurring in part and dissenting in part.
There is no question that the murders of Alyssa and Caleb were unequivocally horrific. And Weisheit’s guilt for those disturbingly reprehensible crimes is clear. I thus agree with my colleagues that Weisheit has no right to a new trial on his guilt. His convictions should stand.
I also agree that Weisheit’s many claims of ineffective assistance at the penalty phase of trial fail individually. But in my view, Weisheit has met his burden on his cumulative-effect claim.
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It is entirely possible that without counsel’s performance deficiencies Weisheit would still have received a death sentence—again, these murders were brutal. But there is also a reasonable probability that he wouldn’t have. So the outcome of his penalty phase does not meet the required level of reliability. See Strickland, 466 U.S. at 694. Weisheit was thus denied his Sixth Amendment right to effective assistance at the penalty phase—though not at the guilt phase—of trial.
The post-conviction court reached the opposite conclusion and relied on improper legal standards. For these reasons, I would remand for a new penalty phase untainted by constitutional error before this case undergoes further review. Cf. Baer v. Neal, 879 F.3d 769, 773 (7th Cir. 2018) (finding that this Court unreasonably applied Strickland in denying the defendant relief on claims of ineffective assistance at the penalty phase of trial), petition for cert. filed, (U.S. Aug. 31, 2018) (No. 18-287).
I therefore respectfully dissent in part.