109 N.E.3d 978 (Ind. 2018), 10S00-1507-PD-413, Weisheit v. State

Docket Nº:10S00-1507-PD-413
Citation:109 N.E.3d 978
Opinion Judge:David, Justice
Party Name:Jeffrey A. WEISHEIT, Appellant (Petitioner Below) v. STATE of Indiana, Appellee (Respondent Below)
Attorney: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...
Judge Panel:Massa and Goff, JJ., concur. Slaughter, J., concurs Rush, C.J., concurs Slaughter, J., concurring Rush, C.J., concurring
Case Date:November 07, 2018
Court:Supreme Court of Indiana

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109 N.E.3d 978 (Ind. 2018)

Jeffrey A. WEISHEIT, Appellant (Petitioner Below)


STATE of Indiana, Appellee (Respondent Below)

No. 10S00-1507-PD-413

Supreme Court of Indiana

November 7, 2018

Argued: September 7, 2017

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Appeal 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


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

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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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 104 S.Ct. 2052 ).

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, 104 S.Ct. 2052). 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, 104 S.Ct. 2052.

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

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Strickland, 466 U.S. at 689, 104 S.Ct. 2052). 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, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Williams v. Taylor, 529 U.S. 362, 395-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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, 251 Ind. 546, 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

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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...

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