Weedman v. State, 90A04–1311–CR–549.

• Decision Date: 26 November 2014
• Docket Number: No. 90A04–1311–CR–549.,90A04–1311–CR–549.
• Citation: 21 N.E.3d 873
• Parties: Derrick WEEDMAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

21 N.E.3d 873

Derrick WEEDMAN, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 90A04–1311–CR–549.

Court of Appeals of Indiana.

Nov. 26, 2014.

Kimberly Jackson, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES

, Judge.

Case Summary

Derrick Weedman appeals his conviction for Class B felony aggravated battery. We affirm.

Issues

Weedman raises numerous issues, which we restate as:

I. whether the trial court properly admitted evidence that Weedman had pursued and later withdrew an insanity defense;

II. whether the deputy prosecutor committed misconduct;

III. whether the trial court properly allowed an emergency medical technician (“EMT”) and a detective to testify about statements made by Weedman's mother;

IV. whether the trial court properly excluded photographs of Weedman showing his 2008 traumatic brain injury

;

V. whether the State presented sufficient evidence to rebut Weedman's claim of self-defense;

VI. whether the trial court abused its discretion when it sentenced Weedman; and

VII. whether the sentence imposed by the trial court is inappropriate.

Facts

Weedman suffered a traumatic brain injury

in 2008 when he tried to kill himself by driving his vehicle into his girlfriend's parked car. After the injury, he lived with his mother and stepfather, Ted Schlichter. Weedman was diagnosed with depression, schizophrenia, and bipolar disorder after the brain injury.

On July 20, 2012, Weedman's mother entered the house and found Schlichter on the floor in the living room bleeding from his face and unconscious. Weedman was in the kitchen. His drinking glass was broken, and the refrigerator was dented and had blood on it. Weedman asked his mother to call 911, saying he had tried to but could not.

Paramedics and police arrived, and Schlichter was taken to a hospital with severe fractures to the bones in his face

and swelling in his brain. Weedman was treated at an emergency room for minor injuries to his hand and feet. He told the medical staff his injuries occurred because he punched Schlichter in the face. When the police took Weedman to jail, Weedman spontaneously told an officer, “It was him or me,” “I have a plate in my head and if I'm hit there I would be a vegetable,” and “I can beat this.” Tr. p. 237. As a result of his injuries, Schlichter underwent a long rehabilitation and continues to suffer permanent impairments, including some vision loss, right vocal cord paralysis, and memory loss.

The State charged Weedman with Class B felony aggravated battery. In August 2012, Weedman filed a notice of insanity defense, and the trial court appointed two doctors to examine him to determine his competency to stand trial and his sanity at the time of the offense. Both doctors, Dr. Jere Lieb and Dr. Stephen Ross, reported that Weedman was capable of understanding the wrongfulness of his conduct and assisting in his defense. In May 2013, Weedman withdrew the insanity defense and his claim of incompetency.

At the August 2013 trial, Weedman argued that he injured Schlichter in self-defense, but the jury found Weedman guilty of aggravated battery. At the sentencing hearing, the trial court found Weedman's criminal history and the significant harm suffered by Schlichter to be aggravating factors. The trial court found no mitigating factors. The trial court sentenced Weedman to twenty years in the Department of Correction. Weedman now appeals.

Analysis

I. Admission of Withdrawn Insanity Defense

Weedman argues the admission of evidence that he had asserted an insanity defense and then withdrew it violated his Fifth Amendment protection against self-incrimination and was used for other improper purposes. The deputy prosecutor mentioned during opening statements that Weedman had filed and withdrawn a notice of insanity defense. Specifically, the deputy prosecutor said:

The Defendant was arrested and he comes into this Court and he files a Notice of Insanity, files it with the Court and it's in the Court's records which means I did it, but I was insane when I did it, I wasn't in my right mind. Well we have two psychiatrists review him and meet with him and they say no, you are not insane, you weren't insane then. Then he files a Notice of Self–Defense which is I did it, but I was defending myself when I did it, we're going to scrap that one about I was insane when I did it, now we're going to go with I was defending myself in self-defense.

Dr. Jere Lieb and Dr. Ross are the two psychiatrists who evaluated him will tell you 1) that he's not insane, they will tell you that the Defendant told them that he thought the victim came at him so he hit him once, hit him once. Those doctors will also tell you that the Defendant has anger control problems.

Tr. p. 113. Weedman did not object. During Weedman's opening statement, his counsel said, “Now [the deputy prosecutor] makes a ... big deal about filing an insanity defense and the withdrawing of that defense, that was not my client, that was not Mr. Weedman's—”. Id. at 118. The State objected, and the trial court sustained that objection.

The State called Dr. Lieb to testify. Dr. Lieb testified that he met with Weedman to determine his competency and sanity and that he determined Weedman was both competent to assist his attorney and sane at the time of the offense. Dr. Lieb extensively discussed Weedman's explanation of the incident. The State also called Dr. Ross to testify. Dr. Ross also testified that he met with Weedman, that he determined Weedman was sane at the time of the offense, and that he was able to assist with his defense. Dr. Ross testified that Weedman had previously been diagnosed as being easily angered, being impulsive, and exercising poor judgment. He also discussed Weedman's medications, substance abuse issues, and earlier suicide attempt. During closing arguments, the deputy prosecutor argued: “Defendant claimed insanity then took that back. Then he claimed self-defense....” Id. at 348.

Weedman did not object to the evidence of his insanity defense and its withdrawal, and the failure to make a contemporaneous objection to the admission of evidence at trial generally results in waiver of the error on appeal. See Brown v. State, 929 N.E.2d 204, 207 (Ind.2010)

. However, a claim that has been waived by a defendant's failure to raise a contemporaneous objection can be reviewed on appeal if the reviewing court determines there was fundamental error. Id. The fundamental error exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. Id. The error claimed must either make a fair trial impossible or amount to clearly blatant violations of basic and elementary principles of due process. Id. Weedman claims that the admission of evidence related to his withdrawn insanity defense resulted in fundamental error.

Our supreme court recently noted that a finding of fundamental error essentially means the trial judge erred by not acting when he or she should have, even without being spurred to action by a timely objection. Brewington v. State, 7 N.E.3d 946, 974 (Ind.2014)

. An error blatant enough to require a judge to take action sua sponte is necessarily blatant enough to draw any competent attorney's objection. Id. But the reverse is also true: if the judge could recognize a viable reason why an effective attorney might not object, the error is not blatant enough to be fundamental. Id.

The Fifth Amendment to the United States Constitution states that “no person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The privilege against self-incrimination not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also privileges him not to answer official questions put to him in any other proceeding where the answers might incriminate him in future criminal proceedings. State v. Cass, 635 N.E.2d 225, 226 (Ind.Ct.App.1994)

, trans. denied.

Weedman relies on Estelle v. Smith, 451 U.S. 454, 468, 101 S.Ct. 1866, 1876, 68 L.Ed.2d 359 (1981)

, where the Supreme Court said “[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” In Estelle, the trial court had sua sponte ordered a psychiatric examination of the defendant “for the limited, neutral purpose of determining his competency to stand trial....” Estelle, 451 U.S. at 465, 101 S.Ct. at 1874. The defendant in Estelle did not request a psychiatric examination, did not raise an insanity defense, and was not informed of his right to remain silent and the possible use of his statements made during the psychiatric examination. At the sentencing hearing, the State “offered information obtained from the court-ordered competency examination as affirmative evidence to persuade the jury to return a sentence of death.” Id. at 466, 101 S.Ct. at 1874. “To meet its burden, the State used respondent's own statements, unwittingly made without an awareness that he was assisting the State's efforts to obtain the death penalty.” Id . 101 S.Ct. at 1875. The Supreme Court held that the admission at the sentencing hearing of the defendant's statements to the psychiatrist violated the defendant's Fifth Amendment rights.

Estelle applies, Weedman says, because the State used the results of his court-ordered examination “for a much broader objective that [sic] the original purpose of the examination. The two doctors examined Weedman to determine his competency and sanity. However, the State used the results of these examinations to prove Weedman's guilt and character.”...