*1 non-governmental a host of There are thus today’s make a whom rule will
custodians to nursing hospitals,
dramatic difference: homes,
homes, psychiatric centers. juvenile presumably have at
These custodians least county jailors. If as duty of care as same importance in says, “the conduct of Court dece- the custodian’s and not the tort is id.,
dent’s”, organizations find these will being insurers much closer to
themselves they
than are now. WISEHART, Appellant Allen
Mark
(Petitioner Below), Indiana, Appellee
STATE Below).
(Respondent
No. 48S00-9005-PD-378.
Supreme Court Indiana.
March 1998.
Rehearing July Denied
26
28 *10 death.5 We earlier affirmed
fence of
appeal
these convic
Wisehart’s direct
of
Wisehart v.
tions and sentence.
(Ind.1985),
denied 476
cert.
1189, 106
Discussion I claim enti- substantial Wisehart’s most Defender, Carpenter, K. Public Susan grounded post-conviction relief is tlement to Hinesley, Deputy Public Defend- Thomas C. “newly-discovered evidence.” in a claim Assistant, er, Special Downling, Janet J. S. argues that while he was convicted He Jr., Merryman, Jeffreys Deputy Public De- alone, theory he acted sentenced on the fender, Indianapolis, Appellant. for presented post-conviction new his evidence accomplices, General, hearing he had two Carter, Attorney shows that James Pamela primary actor in the General, was the one of whom Joven, Deputy Attorney A India- murder. Appellee. napolis, for newly-discovered evi In order for SULLIVAN, Justice. relief, the must es merit claimant dence to post-conviction and affirm review (1) following: tablish each peti- of Mark Allen Wisehart’s
court’s denial (2) trial; it evidence was not available for relief. tion (3) relevant; that it is not is material (4) cumulative; merely impeach that it Background (5) incompe ing; privileged is not (6) tent; diligence was used appeals that due Mark Allen Wisehart Petitioner (7) trial; it in time discover post-conviction relief re- the denial of credit; Murder,1 that it can worthy of evidence is Rob- spect to his convictions case; and upon retrial of the produced bery,2 Burglary,3 Theft4 and sen- 35-42-1-1(2X1982). 35-42-5-1. § 2. Unless other- 1.Ind.Code Ind.Code! indicated, to Title 35 wise references published 3. 35-43-2-1. refer to the version Ind.Code! Indiana Code Code which contains the the 1982 Edition pen- 4. Ind.Code 35-43-4-2. death and the ! substantive criminal statutes alty the time the crimes at statute in effect at 35-50-2-9. were committed. Ind.Code! issue *11 probably produce that it will post-conviction different Also in at the evidence result. Fox v. hearing transcript was the from Wisehart’s (Ind.1991). police reports trial and related the investi
gation evidence, togeth of the crimes.7 This Disney Moberly er with testimony, and A following contains the additional information During post-conviction hearing, there relevant to claim: this testimony Disney from one Robert trial, 1. Prior he, to his Wisehart confessed Tony Fuqua, one and Wisehart had set accepted to the responsibility crimes and sole burglarize out apartment the victim’s specifically stabbing for them. He admitted unexpectedly when she was found to be home, give any the victim and did not indication but Fuqua physically he saw Wisehart and (but that he Wisehart) had acted alone. Fuqua attack her and stab her several times. Again trial, 2. prior Fuqua to Wisehart’s charged assisting was arrested and specifically, Disney
More testified at the criminal on the basis that he had admitted post-conviction hearing that when the three- being apartment outside the while Wisehart apartment, some entered the victim’s Wise- committing inside the crimes. grabbed arm, by spun hart the victim the her around, put his arm around her neck in a trial, Again prior Disney 3. was inter- Disney choke hold. testified further possible viewed on several occasions about scream, when the victim started to Disney involvement in the crimes. denied said, “[S]omebody up,” Fuqua shut her involvement and was not considered a sus- (R. punched then her the stomach. pect. 1386.)6 Disney continued that the victim Disney Fuqua 4. Both were on the then fell to the floor and Wisehart kicked State’s witness list for trial but neither was her; Fuqua that he saw but not Wisehart called. times; stab her several and that after the stabbing, Fuqua “get Wisehart directed during guilt 5. At trial phase, Wise- rid of Fuqua those items” used to stab the presented testimony hart from Officer Mob- Disney victim. testified that he himself nev- erly police and from another officer involved victim, “just er touched the that he couldn’t investigation, in the both of whom indicated on,” deal with going whatever it was that was possible people that it was that other were during and left the attack. involved in the crime. Moberly, police
Officer detective with During pres- the trial but outside the major responsibility investigating court, ence of the Wisehart was interviewed crime, post-conviction hearing by he, testified at the police and told them that one (no Gregory Wisehart had verified most of the details Scott Johnson relation to the victim) substantially of a given by similar account person and a third had committed the Disney in years an interview some after crimes and that it had been Johnson who had Moberly Wisehart’s conviction. also testified stabbed the victim During to death.8 Disney’s session, that he had come to believe apparently inadvertently account. (Ind. opinion 6. The record is referred to in this Bacher v. 794 n. 4 ways. 1997); three The record in the except by when offered an accused in a "R;” court is denominated as the record in the 803(8)(a). criminal case. Evid.R. Wisehart of "T.R.;” supplemental trial court as and the rec- reports fered the here. containing ord the record of voir dire at trial as "S.T.R.” place 8.This unusual session took with the active participation of Wisehart's trial counsel. It oc- police reports 7. The were admitted "as a busi- curred after Johnson had testified State. pursuant ness record to Indiana Rule of Evi- impression 803(8).” 803(8) unmistakable of this session is Actually, dence Evid.R. covers records; trying 803(6) get public Wisehart was even with John- Evid.R. covers business testifying against investigative reports son for him. Wisehart by records. We note that makes police personnel and other law enforcement no contention now that Johnson are was involved in 803(8); not rendered admissible Evid.R. see these crimes. *12 Moberly substantially account person gave and the third that once indicated Disney presented which at same as that the Disney. hearing. The record con- the phase, Wisehart’s During penalty 7. the by Disney signed contain- tains a statement present testimony attempted to counsel substantially the same as that ing an account Moberly may have through people other that post-convic- at Disney presented the which mitigating in crime as a the been involved Moberly he hearing.11 testified that tion However, judge re- the circumstance. prison in and Wise- then visited presented be to such evidence to fused allow Disney’s Disney’s account. hart “verified” regarding the jury9 the and no evidence to essentially unchanged from remains account presented involvement of others possible point But the indicates that forward. record penalty phase. Dur- jury during the to the later, Moberly again months vis- that several prove in this ing counsel’s offer to defense prison in and Wisehart re- ited Moberly that it was regard, indicated Officer to account that his his Johnson was turned was involved now his that no one else belief accomplice that had done the Johnson Joy, expert defense in the crimes and Dr. a stabbing. witness, him had testified that Wisehart told police report record contains a 9.The sentencing At the others were involved. Moberly July in which wrote dated investigator that hearing, testified a defense County prosecutor de- that the Madison had oth- investigator told the that Wisehart had charges against Fuqua pursue not to cided and that Wise- ers were involved the crime because, “although enough to there was sus- the victim.10 hart never struck indictment, grand jury felt that tain sen- Wisehart was convicted and 8. After trial, enough there not be for a once would tenced, Department Police con- the Anderson only present as the state could conviction The investigating the crimes. record tinued Disney, Fuqua probably would Robert during investigation, Moberly this shows that testify it would be down to which witness Disney again who denied involve- felt spoke with most credible. It was that would the post-conviction hearing, Disney’s appearance the Mob- and back- ment. At because the erly months later he would not be most credible.” ground testified that some Moberly “This is now changed story also wrote: case sus- again spoke Disney to who 6, supra, accompa- paragraph objected and the of this evidence cussed in 9. The use State nying footnote. grounds not sen- that it was relevant on using tencing arguing support In issue. evidence, said, prose- "[A]s defense counsel Moberly appears that It this is account 11. know, Moberly ... there cutor Officer both although the Wisehart “verified” testified that case, people we’ve arc other involved this as meeting Moberly appears and Wisehart between clearly that told Their evidence shows days them. the date on to have occurred few before true, while it has there And absolute- discrep- [were].... Disney's not this We do find statement. guilty one, ly nothing man to do with whether this is significant. ancy, if it is by of murder related or innocent crime statute, something definitely has to do with Wisehart, Moberly talking with stated 12. Before (R. 2336.) sentencing.” trial court sus- Lawler, prosecutor, was Mr. advised objection grounds evidence tained the Wisehart, plan talk with but told that mitigating level of circum- did not rise question purpose the interview was to 35-50-2-9(c)(4) § Ind.Code stance under either accomplices and about Wise- Wisehart about provisions sen- establish or Those already guilt innocence since that hart’s mitigating may tencer consider as circumstances Moberly also that none determined. stated been (1) accomplice in the defendant was an attorneys were contacted before of Wisehart’s person by another murder which was committed appeal direct was still interview. Wisehart’s this participation was and in which the defendant's argues— pending time now this and Wisehart under relatively minor or the defendant acted duty authority the State’s to dis- without —that person. another domination of substantial after exculpatory continues trial. evidence close partic- the mere concluded that The trial court present any authority on failure to Wisehart's ipation did not rise to the others in the crimes telling holding from point we refrain is but mitigator. required level cither duty. has such a It the State never duty there was no here to hold that sufficient exculpa- referring information itself was both since the appears that this witness was It Johnson, Wisehart. implicate tory was communicated to attempt dis- and it trial, pended: present Mark is on It death row. the evidence at cannot use *13 Fuqua Disney is known now that and were as a such evidence basis for new trial Fuqua co-conspirators. the other inflicted following an unfavorable verdict.” Fleener v. damage State, of 473, 479, 778, most on the victim. Never 274 Ind. 412 N.E.2d 782 (1980) State, once have we uncovered evidence that 112, (quoting Riddle v. 273 Ind. Disney Wisehart was not involved. will re- 116-17, (1980)). 958, 402 N.E.2d 961 See immunity testify main to have should he ever State, 101, 109, Vacendak v. 264 Ind. 340 (R. 1256.) for the state.” 352, (citing N.E.2d 357 DeShone 380, 386, 223, 207 Ind. 193 N.E. 225 10. As indicated at the outset of this sec- (1934)). tion, Disney Moberly and testified at the post-conviction hearing. “newly What Wisehart claims is dis Disney’s placing Fuqua covered” is account B Disney in the victim’s home with Wise- Wisehart contends that the evidence that being hart at the time the crimes were com Disney Fuqua were involved in the mitted. Wisehart does not claim that he was Fuqua crimes and that stabbed the victim such, not present. As to the extent evidence,” “newly constitutes discovered enti- Disney’s testimony claims tling him to have both his convictions and accurate, prior Wisehart knew to trial about post-convic- death sentence set aside. The Fuqua’s and relative in Wisehart’s roles rejected claims, finding tion court these crimes because he was there with them. The this evidence insufficient was to entitle Wise- Disney Fuqua evidence that in were hart to relief from either his convictions or Fuqua volved in the crimes and that stabbed his sentence. As discussed at the outset of newly the victim is not discovered evidence I, part stringent Fox sets forth nine because, true, under Fox if it is it constitutes requirements, each of which a claimant must evidence or information of which Wisehart satisfy in grounds order to obtain relief on knowledge prior had to trial. Fox, newly discovered evidence.13 568 N.E.2d at 1007. We conclude that Wisehart B-2
has not satisfied at least three of the Fox requirements. He has not established that The Fifth Circuit has observed that the evidence was not available at trial. He “newly necessarily available” evidence is not diligence has not established that due was synonymous “newly discovered” evi used to discover this in evidence time for Metz, 478, dence. United States v. 652 F.2d trial. And he has not established that this (5th Cir.1981). particularly 480 This is probably produce evidence would a different case when a witness comes forward with result on re-trial. exculpatory testimony after trial has been B-l completed. clear, As Fox makes evidence is definition,
By
a claim for
“newly
diligence
relief
not
discovered” if due
newly
Fox,
based on
discovered evidence must
used to discover it in time for trial.
be based on
rejected
evidence
information of which 568
1007. We have
as not
knowledge prior
meeting
the claimant had
to trial.
requirements newly
the Fox
avail
Calderon,
See United States v.
127 F.3d
consisting
post-trial
able evidence
exculpa
(11th Cir.1997),
co-defendant,
tory testimony
cert. denied sub nom
from a
accom
—
States,
-,
plice
Noa v. United
U.S.
or alibi witness where there
no
— L.Ed.2d-(1998).
See,
produce
S.Ct.
It has
e.g.,
effort made to
it at trial.
long
(Ind.1993);
in
been the rule
this state that
“[a]
James
613 N.E.2d
evidence,
(Ind.
possession
defendant
who fails Bradburn v.
See,
resources,
judicial
13. The federal courts use similar criteria.
of scarce
courts exercise
States,
e.g.,
'great
setting
Jarrett v. United
822 F.2d
caution’ in
aside a verdict reached
(7th Cir.1987). Judge Ripple
fully-conducted proceedings."
sets forth the ratio
after
United
Kamel,
(7th Cir.1992)
requirements:
nale for these
"Because of the
States v.
F.2d
(footnote
importance
omitted),
repose,
citing
corpus
accorded to considerations of
cases
habeas
denied,
(N.D.Ill.1997).
regularity
decision-making
and conservation
II prevailing mance was unreasonable under professional (citing most Id. Wisehart’s second substantial claim norms. Turner (Ind.1991)). of entitlement relief is that N.E.2d Sec ond, deprived require he was effective petitioner assistance of we the defendant or counsel to which was entitled his prejudice when to show adverse as a result of the pursued contradictory trial counsel performance. theories showing deficient This defense. While framed several demonstrating differ- made perfor counsel’s ways, gist ent of Wisehart’s claim is that prejudicial deprived mance was so that it prejudicial incompetent for his petitioner defendant of a fair trial. Low- lawyer argue at the same time that Wise- ery, at 1041. We will conclude hart was innocent and that he was insane. that a fair trial been has denied when the presses point following with the conviction or sentence has resulted from a *15 First, arguments. jury simply could not process breakdown of the adversarial lawyer’s accept argument (citing rendered the result unreliable. Id. Wisehart did not commit the crime when an State, 1027, (Ind. Best v. N.E.2d 566 1031 insanity suggests defense that a defendant 1991)). State, See also Sanchez v. 675 responsible but committed the crime was not (Ind.1996). 306, 310 Second, jury’s for ability his actions. assign weight mitigating to Wisehart’s men- A (if tal condition significantly was undermined We have never examined whether excluded) logically by lawyer’s con- presentation the simultaneous of innocence tention that he had committed the crime. insanity defenses constitutes ineffective Third, any hope lawyer that Wisehart’s assistance of nor does appear counsel there strategic to make of the use two defenses precisely authority point.18 be other on this by alleged was undermined counsel’s failure However, give several lines of cases us some explain apparent the reasons for the con- guidance. by alleged tradictions and counsel’s failure to advance Wisehart’s mental condition aas example, For appellants seeking relief mitigating circumstance. from criminal sanctions often contend that analyzes lawyers
Indiana
claims of inef
their
were
at trial
ineffective for
fective
according
failing
assistance of counsel
to the
to raise defenses related to their men-
two-part
in
including
test announced
Strickland
tal
v.
condition.
ours—have
Courts —
668,
Washington,
2052,
rejected
466
104
U.S.
S.Ct.
80
these claims of ineffective assistance
(1984). See, e.g., Lowery
by observing
L.Ed.2d 674
v.
counsel
that such defenses
State,
(Ind.1994).
1031,
likely
640 N.E.2d
1041
counter-productive
would have been
First,
require
petitioner
we
they
the defendant or
prof-
because
would conflict with the
that,
circumstances,
to show
of all the
fered defense of actual
innocence.19 See
light
State,
188,
Bieghler
identified acts or omissions of
v.
counsel
690 N.E.2d
203-04
context,
that,
(1974).
suggested
gener
In a different
we have
39 of innocence (Ind.1997); cated trials on issues v. 679 N.E.2d Meredith Landis, (Ind.1997). generally T. 1309, insanity. v. See Debra See also Weeks 1312 (11th 1030, Cir.1994); Annotation, Jones, Propriety Necessity or F.3d 1039 26 of Bifur Insanity (Fla.1993); 291, Trial Issue So.2d 294 cated Criminal Rose v. 617 (1980). 166, Garrett, A claim of Defense, S.E.2d 884 v. 182 W.Va. A.L.R.4th State Mizell, (1989); made proceeding v. such a was Commonwealth entitlement to (1981). 262 Ind. Pa. A.2d to this court Hester not While type involving con Another of situation (C) 42(B) ing Ind.Trial Rule would innocence and flict between the defenses of issues, upon such authorize bifurcated insanity grant relief caused the court to problems our Court also identified certain (10th Kaiser, 81 F.3d Cir. Selsor re arising particular, In we such cases. 1996). charged with and Dodson were Selsor declaring uncon viewed an Arizona decision he was defense was that murder. Selsor’s requiring that state’s statute stitutional innocent; defense was that Dodson’s plea guilty trial where a of not bifurcated public ap defender insane. state insanity asserted: reason of pointed men. The trial counsel both motion that the defen denied Selsor’s difficulty court procedural in ad- Looking to the joint calling separately, trials, dants be tried Arizona ministering bifurcated problem “an internal representation problem trial court could not court noted that the office.” The feder for the Public Defender’s insanity at the consider the evidence of petition granted appeals al court Selsor’s required first trial and would thus *16 relief, corpus finding that the trial habeas solely circumstances find intent from the ‘ * * * discharge its failed to constitution court had The connected with the offense. duty adequate steps ascertain al to “take to only proof first trial then would involve remote [of conflict] whether the risk too had that an of a criminal nature been act at 1503 separate committed, warrant counsel.” Id. commit- and that the defendant Arkansas, 475, Holloway v. 435 (quoting effect, U.S. gives pre- In rise to a ted it. 1173, 1178, 484, 426 98 55 L.Ed.2d intent, S.Ct. or premeditation, mal- sumption of (1978)). conclusion, ap the explaining In its ice runs counter to the common law which peals court said: of law. concepts criminal constitutional solely trial is limited to the inquiry no into how Selsor’s second
There was by insanity, guilt the the might adversely question legal of of affected the defense already though po- having the been deter- joint representation even defendant patent. provision, is nor realis- As There no tential conflict of interest mined. be, noted, tically to determine also as- could there counsel Dodson would defense intent, in reduc- required premeditation, or malice insanity which sert an defense Thus, offenses, degree in in- of the crime. his role tion of him to admit in trial be- presumption raised the first cluding participation with Selsor. Sel- presumption. deny any an irrebuttable Such involvement. comes sor’s defense was to pro- presumption of due positions color the a is violation These inconsistent could * * Shaw,] cess, v. 106 Ariz. attorneys [State *.’ judgment of defense 103, [715,] adequate ]. An 471 724 throughout [ the trial. consid- P.2d of the conflict would have revealed eration insanity although plea of hold that impossibility going of forward may an admission of be viewed as joint representation. inmay of criminal act and commission (footnote omitted). Selsor, F.3d at 1502-03 81 ways burden other ease State’s not, in the absence other proof, it does set of cases are most We believe a third circumstances, entitle a compelling defen- problem to the here. Because relevant view We do not conducting dant to a bifurcated trial. trials the difficulties inherent request- insanity alleged reason for the defendant’s of innocence and are where defenses two-stage trial as circumstance available, by ing the jurisdictions, either some both statute, and substantial giving probable require permit rise bifur- ease law or 40
prejudice required somebody such a variance from don’t go confess. We have to single pro- any They the established and normal farther. That’s true. didn’t re- go any cedure. ally according farther to their evi- They they guy dence. said Hester, 287-88, 262 Ind. 315 N.E.2d at They really it. did didn’t even consider jurisdictions 353. Many have reached the [Wisehart’s] mental condition as kind Hightower, same State result. See 661 why factor bearing say of a he would 948, (R.I.1995); A.2d Commonwealth v. something if he mean it. didn’t And that’s 74, Jermyn, (1987); 516 Pa. 533 A.2d why insanity reason defense is in Ward, State v. N.C. S.E.2d you. trying front of We’re not to excuse (1980); Leick 131 Colo. did, what because he didn’t do it. What Contra, P.2d Holmes v. trying you explain why we’re is (D.C.Cir. States, United 363 F.2d ample said what he did. there’s And evi- 1966). why to show dence he made these ridicu- bottom, At we conclude from lines these lous, self-destructive comments about him- compelling cases that in the absence of other implicated self and in a himself crime he circumstances, a criminal defendant is not do.... didn’t subjected probable preju- “to and substantial (T.R. 2276.) proceeded Trial counsel then dice” when counsel does maintain both de- repeat testimony tending various sup- fenses. port theory such and then also discussed blame-taking B character with the following comments: We find that there was a sound stra acceptance And then last ... of blame. tegic placing reason for Wisehart’s mental history Now there a of that in [Wise- condition at issue this ease. Counsel was Yes, hart]? there is. How do we know maintaining guilty history acceptance there’s of blame in insanity reason of asserting but rather [Wisehart], junior high [Wisehart]? insanity explanation as an for the most dam *17 school, according to Mr. Warmke ... re- aging against evidence the State had Wise- him, boys? member the dean of ... said hart’s of defense con innocence—Wisehart’s he saw [Wisehart] several times. [Wise- fession. Wisehart’s mental condition—his always would hart] admit to whatever he propensity explain blame-taking might for — him doing, accused of he whether had done yet how he be could innocent and confess. not. it or He He said that. said he knew certainly through While counsel suffered sev for a fact that put lots of times kids would rough eral in spots employing strategy, up things. him to But [Wisehart] wanted during especially voir dire and examina accepted, to be so he wanted so much to be Joy, tion closing argument of Dr. counsel’s part of the group a that he would sit there clearly, cogently effectively employed and everybody, and take the blame for whether support Wisehart’s mental condition to his it or example, he did not. That’s one innocence defense. just Mr. Warmke said that wasn’t one B-l He time. remembered several instances of go that. Then we on to his behavior at During closing argument, pro- trial counsel there, Roads.... Cross While was vided a detailed discussion of how the State’s exhibited that same behavior. He’d take prove circumstantial evidence did not that kids, for the blame the other the kids he any Wisehart had committed of the crimes. get trouble, Somebody’d was close to. argued Counsel then that case State’s say, I he’d did it. me for it. I’m Punish solely rested on Wisehart’s confession—and who history the one did it. So we have a false, product confession was of Wise- part. of this sort of his behavior on hart’s mental illness: (T.R. 2283-84.) at problems There of are a lot with this case. happened What jury here was after Trial [Wisehart] counsel informed the confessed, said, oh, boy, got insanity [the State] we of defense was not filed order to state, Wisehart, mental the court did but instead defendant’s provide an excuse insanity need be filed suggest that a notice of provide proof to that Wise- was filed order evidence), present did not trans. denied. falsely confessed to crime he such hart law, approach then-existing statutory find an well and case commit. We such Given vig- expected of defense strate- well have within the bounds effective defense counsel could any place effort Wise- orous resistance gy- jury, alleged mental illness before the hart’s B-2 insanity complying notice of without with the that there was a more Our determination Badgley Ind. See statute. explanation for coun- adequate strategic than (1948); Taylor v. argue both actual innocence sel’s decision to Ind.App. n. insanity jury unneces- to the makes it was not deficient 1183 n. It sary great examine detail insanity proceed performance to under specific numerous claims of ineffective assis- notice statute. to this of trial counsel related issue. tance However, of we elect to address several do Second, Wisehart contends them. having con trial counsel was ineffective First, that, contends while by not jury during voir dire articu fused the may strategy argue it have been sound claims of lating could maintain how Wisehart falsely had confessed due that Wisehart insanity at the same actual innocence and condition, require did not his mental the law dire, jurors During voir a number time. insanity argue file counsel to a notice frankly questioned how a defendant could so, By doing client was insane.20 example, juror prospective For claim both. maintains, performance counsel’s Boyland that he felt was “kind indicated (because deficient he did not know insan contradictory” for a defendant to maintain (because law) prejudicial ity defense innocence; insanity if he and actual both pre inappropriately to deal with an defense, “my insanity first an were to assert claim). today might insanity con sented thoughts I would be that would hand would not have to file clude that defendant ... crime.” admitting the crime insanity insanity pursue a notice (S.T.R. 577.) 576; was unde While there falsely he had in order to claim that defense score, niably we find confusion on this some has due to mental illness. But this confessed fully that trial that the issue was aired and law, an unsettled area Indiana been ju steps prospective took to exclude counsel recently. very until See McClain v. least unwillingness to expressed enter rors who (Ind.1997) 104, 105, *18 N.E.2d 109 not find arguments.21 We do tain the dual insanity not (holding that a notice of was performance on this issue dur that counsel’s required to voluntariness of de contest the ing dire voir was deficient. actions), denied.; reh’g Barrett v. fendant’s Third, State, trial counsel’s (Ind.Ct.App. Wisehart faults 675 N.E.2d 1996) (in argument. opening Trial opening counsel’s holding of battered that evidence opening was brief and direct. syndrome negate admissible to statement woman’s was issue, brief, presents prospective legisla- five 21. In his At time of the crimes at unwilling- jurors' insanity demonstrate their comments to defined as the lack of substantial ture strategy. argument But wrongfulness accept the capacity appreciate ness to dual to either from the individuals were struck to the re- four of these or to conform conduct the conduct (Graham, at S.T.R. and did not serve. result a mental venire quirements of the law as a Davidson, 350; 199; Fewell, 35-41-3-6(a) at § Bruns and S.T.R. or defect. Ind.Code disease 584.) (1982). Boyland, whose comments at Juror was not defined S.T.R. Mental disease defect text, part supra, and also in except “abnormality are in the any manifested discussed to exclude X-D, having infra, only been but after only by repeated was seated unlawful or antisocial conduct.” (S.T.R. 577.) 35-41-3-6(b) (1982). ac- general, challenged at We § for cause. In Ind.Code a knowledge did exercise required trial counsel not insanity that that defense statute then our respect Boyland challenge insanity, peremptory to interpose a defense of for a defendant range of discre- that within the counsel’s insanity advance of but find had to be filed in a notice seq. § et tion. trial. Ind.Code 35-36-2-1 argument simply stated that Wisehart was would the blame “It my take for it. my innocent and would that evidence not idea. It was idea.” I’m not sure it beyond was, show reasonable always doubt Wise- but he that’s what would tell (T.R. 1702.) hart committed the Trial crime. counsel me. at insanity plea made no reference or the I consider it kind of when unselfish theory. retrospect, false confession While up give would some of his free time own may it appear that this would have been a given punishment something good theory, time inform of such really Especially someone else did. logical it would have also been counsel to I guy. keep little referring these littler wait for the State to introduce the confession very protective kids. He over them. into it. attacking evidence before they If something had done and he didn’t they get punishment feel that should event, any regularly In we have held just ... I say know ... don’t he would an opening decision to make (T.R. 1762) it, you did know. at statement strategy is matter of trial 2. The of a dean school that Wisehart had support will not an ineffective assistance of attended accept testified that Wisehart would See, State, e.g., counsel claim. Roche v. any discipline form of him exercised even (Ind.1997); Douglas N.E.2d 1124-25 put on the when occasions other children him (Ind.1996) (cit 663 N.E.2d (T.R. 1961.) up things. to do at some ing Nuckles v. (Ind.1990)); Miller 3. Dr. Joy, psychologist, the defense’s (Ind.1989). Likewise, we hold that the testified that a lot of “[Wisehart] fabricates statement, an opening content of absent things.... say I don’t know I could blunder, egregious some is also a matter of confession, specifically to a as but he fabri- strategy. things very cates a lot of and tells elaborate (T.R. 1886.) stories that are not true.” Lastly, Wisehart claims counsel We find that trial counsel deficient failing was ineffective in present sufficient in failing present support sufficient evidence evidence to the false confession support theory. false confession argument claim. noteWe that the here is not that present counsel failed to evi regard only
dence in this but that counsel C present enough failed to evidence. The fol advances a second claim lowing presented: evidence was concerning ineffective assistance of trial respect counsel with to his mental condition. Crossroads, parents house 1.The He contends that constituted deficient and emotionally home for disturbed children prejudicial performance for counsel not to resided, where Wisehart had offered the fol- presented have evidence of Wisehart’s men lowing testimony: tal a mitigating condition as circumstance Well, always has [Wisehart] kinda the de- during penalty phase of the trial. Ad underdog, say. fender of the I would part vanced this claim the assertion little several kids that would do mis- *19 trial erroneously thought counsel things, chievous and ... [Wisehart] and having advancing been unsuccessful in his particular one in little fellow that [Wise- arguments mental guilt condition in the just very, very ... hart] was fond of and phase, they longer were no in available ... if in got would James trouble penalty phase. say, “Well, and would come and [Wisehart] Mom, I was with him. I penalty phase, could’ve ... I At the all from evidence stopped partly my guilt should’ve him. was phase incorporated by It reference. in,” stepped argument, fault. I should’ve In closing some- his prosecutor con- thing. ... verdicts, But and he that on by guilt phase did several tended that its jury rejected different occasions where three or four mental Wisehart’s condi- get they’d together pull mitigating kids would and tion as a In circumstance. re- prank sponse, some pointed mischievous trial [Wisehart] Wisehart’s counsel to of this should not be executed because phase of Wisehart’s mental guilt evidence you you I think if ... if look that it should be crime. And arguing vigorously condition (em- factors, only conclu- mitigating as a circumstance all there’s one considered at those added): reach, phasis you proper can that it is not to sion impose penalty death in this case. you every people one of are Each and to have to make an individual choice going (T.R. original).) (ellipses in at 1871-72 intentionally you can recom- of whether performance at conclude that trial counsel’s die, will then we be mend someone failing not penalty phase was deficient for Judge on to Newman passing the burden place mental condition before final choice to make the and will his mitigating a circumstance. as Mark lives or dies. about whether decision very very, weighty we have It’s a decision Ill sitting talking down here. We’re about of ineffective In addition the claims thinking through going we’re whether the in- assistance of trial counsel related to someone, kill much the same sanity-actual in innocence defenses discussed doing. accusing been Mark of State has II, part lodges supra, numerous rationally Mark sit think Did down complaints about trial counsel’s additional through in this Consid- what he did case? guilt phase performance that he contends long, long a the evidence. Mark has er of coun- him the effective assistance denied history disturbance. There’s no mental of court found that sel. Now, prosecutor doubt about that. not denied the effective assis- Wisehart was well, mitigating a says, not that’s factor. agree. and we tance counsel definitely mitigating Mark It is a factor. born, family, in a consumed raised A problems him. He a sorts of around all factor, matter, only genes, general his his envi- but As line, along experi lack of ronment. Somewhere contends that counsel’s boy. something Are defending penalty short-circuited this a death case and ence is a insanity prejudi to condemn him because he freak presenting we defense was him we to condemn be- per of nature? Are Inexperience to the se is cial defendant something missing cause there’s a claim of ineffec sufficient make out Meredith, ought be there? That character assistance counsel. See tive something wrong with his brain? there [is] (quoting Douglas, at 1154) (“isolated inexperi [sic] poor strategy, ence, necessarily consti or bad tactics do not (T.R. 2409-10.) argument, Later in his counsel”). See tute ineffective assistance (empha- theme returned trial counsel Cronic, 466 U.S. added): United States v. also sis (Su L.Ed.2d 104 S.Ct. prosecutor says mitigat- no are] there [The finding of ineffective preme Court reversed here. Remember all the ing circumstances young in a of counsel case where assistance We had witness evidence we had. after lawyer participat who had never real estate prosecu- both the witness witness for after appointed represent jury trial ed in a who about tor and the State testified fraud). with mail Here charged a defendant Every last one problems. mental Mark’s found that lead post-conviction court Now, reject- admittedly, you them did. thirty- at least at trial had defended counsel mitigating on his possible it as a factor ed cases, and at felony including murder six crime, the law responsibility but cases, persons represented tempted murder you that as to whether allows to consider involuntary commitment mental health *20 proper. And for those of the sentence ten approximately handled proceedings, your you do not feel that Christian who a seminar on that, appeals, and attended criminal strong enough to consider are beliefs post- defending The penalty cases. death whether Consider consider other. had that lead counsel court found that he conviction Marks’ mental condition was such to defend training experience and adequate ... that crime or he not commit this did post-conviction illegally against court mental Wisehart. The found coercion directed only Moreover, felony that one during hearing co-counsel defended [Wisehart].” experience training motion, no or case and had trial presented this counsel testi- defending penalty but mony death cases that this psychiatrist which corroborated experience prejudice lack theory did not Wise- the defense that was Wisehart hart’s We find no inherent confessing. defense. ineffec- coerced into while Wise- And experience tiveness in trial counsel’s or lack alleges hart claim in that counsel did not thereof. suppress motion to that had con- question falsely psychiatrists
fessed or B possibility regarding the a false confes- sion, certainly testimony counsel elicited re- that Defendant contends trial counsel was garding susceptibility being to Wisehart’s during pre-trial proceedings ineffective for easily by others, suggesting influenced (1) that failing following reasons: to make involuntary. confession was We do (2) not motions; failing several to raise the issue (3) performance find counsel’s to deficient. competency; being Wisehart’s con- fused about the mental health issues. Fourth, suggests he that trial coun B-l requested sel should have a continuance after (1) Wisehart contends that trial counsel: suppress the motion to was denied. We do adequately failed to articulate his need for request find failure counsel’s to contin (2) assistance; expert until waited less than fact, uance to be deficient. In we see no three before trial to file a weeks motion to why reason a continuance have would been (3) confession; suppress Wisehart’s failed to (based necessary upon per since counsel his suppress assert in the motion to that Wise- during suppression formance hearing) hart impermissibly coerced to confess appeared prepared present to be a false falsely confessed; and that he failed theory confession at trial if the confession request a continuance after the motion to suppressed. was not suppress was denied. B-2 First, denial of Wisehart raised the his private sociologist motion for a as error in his Wisehart trial next contends that counsel Wisehart, appeal, but direct we found none. failing ineffective to contest the issue N.E.2d at The issue is not available competence. of Wisehart’s At Wisehart’s relitigation here. competency hearing, stip- counsel Wisehart’s competence ulated as to Wisehart’s to stand Second, showing he makes no how trial psy- and advised the court all the waiting until three weeks before trial to file (and reports chiatrists’ indicated (which appeal direct motion we held on believed) himself compe- Wisehart was denied, Wisehart, properly have been accepted tent to stand trial. court 954) preju N.E.2d at either deficient stipulation and asked that record show dicial. psychiatrists that all the who examined Wise- Third, alleges trial counsel reported competent hart that Wisehart was impermis failed to assert Wisehart was to stand trial.22 sibly confessing. Contrary into coerced contention, find that During hearing, we trial following argument sup argued counsel made the that circumstances indicat port styled Sup competent, of what a “Motion to ed that not been he had that trial press Involuntary stipulated compe “The counsel not have Confession”: should sought tency, suppressed statements to be were should counsel have psychological again obtained as a result of raised of competency the issue when reports competent by attorney 22. While the filed the three court- "[Wisehart] is assist his record, appointed psychiatrists are in the charges defense and understand (a report Joy psychologist Dr. (T.R. 95.) filed who served against him.” Wisehart) expert as an witness for stated that
45 (a Joy psychologist) as ex- quested Dr. apparent. Wise- became such circumstances support pert second-guess We will not witness. presented two witnesses hart decision, First, especially counsel strategic trial with- argument. Wisehart’s counsel’s hearing during showing prejudice. testified out a really” “not able assist Wisehart was that defense, nor was able to
him in the Wisehart C proceed- seriousness understand the following that the actions Wisehart asserts (R. problems.”23 his ings of mental “because during voir constitute ineffective assis- dire 562.) Second, 551; presented Wisehart (1) failing provide the of counsel: tance Ryan, psycholo- testimony of Dr. a clinical (2) theory; jury with an articulable defense gist, and interviewed Wisehart who met jury’s reeeptiveness to failing to discover the (ten April, years after Wisehart had 1993 theory; failing to penalty phase sentenced). upon Based been convicted jurors. strike at least two clinical interview four hours hour Ryan testing, Dr. psychological concluded First, tri Wisehart contends that guess “[Wise- was that that his best educated during al ineffective voir dire counsel was effectively, was still unable to function hart] provide jury cogent defense failing to ..., severely, severely which would would theory. of the record indicates Our review ability help or even interfere with adequately in Trial otherwise. counsel (R. own participate in defense.” [Wisehart’s] theory jury of formed the the defense 2008.) innocent, pled deciding standard such “The insanity that a notice of guilty” “not not competency is whether or the defendant regarding to introduce evidence filed order ability currently possesses to consult ra II, part mental condition. See factually compre tionally with counsel and Additionally, argues that supra. or proceedings against him her.” hend the during voir ineffective dire trial counsel was (Ind. State, 1382, N.E.2d 1384 v. 646 Brewer jury the not introduce to the because did State, 945, 1995) (citing N.E.2d Mato v. 429 This of the case. substantive factual issues (Ind.1982)). pre-trial stipulation performance. deficient does constitute and the trial court’s determina trial counsel State, 1032, Bannowsky v. 677 N.E.2d See upon competence tion of were both based (Ind.1997) State, (quoting Von Almen court-appointed psy conclusions of the three (Ind.1986)) (“Questions N.E.2d post- equivocal In conflict is the chiatrists. shape a favorable which seek to and the statement of trial counsel conviction exposure to the substantive issues deliberate Ryan, own testimony of Dr. defendant’s ex Hopkins v. improper.”); are the case ten pert, on an examination conducted based (Ind.1981) State, (disap 429 N.E.2d these years after time of trial. Under jurors’ implant “voir proving use of dire circumstances, findings psy of the three facts of about the substantive minds ideas support the conclu are sufficient to chiatrists tried”).24 being the case not consti stipulation did sion that counsel’s performance. Second, tute deficient Wisehart contends jury’s re failed discover the trial counsel
B-3
phase theory by
penalty
to the
ceptiveness
evidence to
preparing them for
that trial counsel in
Wisehart claims
have held
at trial. We
psychologist, rather
offered
his confusion hired a
“inquire into
dire to
However,
permissible to use voir
the record
psychiatrist.
than a
deliberately
jurors’
or tendencies to believe
biases
counsel
re-
reflects
trial
why
stipu-
also
24. See McCormick
counsel was asked
23. When trial
(Ind.1982); Everly v.
271 Ind.
competence,
counsel said
996
689,
to Wisehart's
lated
(1979);
Blackburn v.
competent,
probably
395 N.E.2d
that he felt Wisehart was
139, 142,
271 Ind.
his con-
think Wisehart could conform
but didn't
society.
duct to the standards
*22
(3)
things
ny,
object
disbelieve certain
about the nature of
to the admission into evidence
(4)
particular
mugshots,
object
testimony referring
crime itself or about the
line of of
(5)
test,
Hopkins,
polygraph
object
lay
defense.”
jected objection and the been sustained. cially exam were the results of the since declarant.) fact, the State did call disclosed). never object The decision not to was not deficient performance. D-5
D-3 also contends that trial trial counsel should Wisehart contends that objected photo counsel should have objected questioned sev- have when State mug-shot array grounds that a lay abili- regarding Wisehart’s eral witnesses per inad prejudicial. “Mug shots are not se right and ty to know the difference between State, v. 536 N.E.2d missible.” Andrews only conclusory wrong. state- He makes (Ind.1989). They if are admissible objection ment to the effect such (2) they they unduly prejudicial are Consequently, have been sustained. would independent probative have value. substantial appellate review of contention. he waives State, (Ind.1996) 74, 75 v. 672 N.E.2d Cason 8.3(A)(7). Rule See Canaan Ind.Appellate 628, 632 (citing Splunge v. 641 N.E.2d (Ind.1997), reh’g 683 N.E.2d Andrews, (Ind.1994)); at 509. 536 N.E.2d denied; Clemens properly argues has The State that Wisehart (Ind.1993) (appellate review waived photo array failed that the to show authority failed cite where defendant “mug nothing the record shot” and that why counsel’s failure failed to mention photo array re that the was ever indicates object performance or how substandard “mug shot.” to or characterized as ferred prejudiced). he was Furthermore, has post-conviction counsel photo array for provide failed us with the E Thus, finding have basis review. we no trial counsel Wisehart claims fail performance trial counsel’s deficient closing argument because photo was ineffective object ure to to the admission inno- improperly for Wisehart’s array vouched into evidence. test, Newman, my polygraph I did took a During A: When son examination of Alice direct reading say to the house on after she stated that she saw had been [Wisehart] regarding newspaper victim's police article Wednesday to some officer murder, gave 2065.) trial asked her whether she (T.R. counsel station. any police officers and all of this information responded following she in the manner: inadvertently requested cence and then opinion ap- As discussed in our on direct put position not Wisehart in a where peal, permit the court did not counsel to call something his life would be taken “for support witnesses of the second or probably didn’t do.” Our review the rec- arguments. third Counsel cannot be faulted ord doing nothing reveals that counsel was failing present evidence on those two zealously more than advocating his client’s points. As argument, to counsel’s first *24 phraseology innocence. While counsel’s presented testimony counsel multiple wit- best, might not have been the the thrust of during guilt phase nesses the as to Wise- argument his was clear and did not consti- history problems particu- hart’s of mental in performance. tute deficient lar upbringing history and difficult in general. during This evidence admitted the IV guilt phase incorporated penalty was into the In addition to the claims of ineffec phase jury’s for the consideration. The trial tive assistance of trial counsel in discussed jury court instructed the to consider all the III, parts supra, II and Wisehart also con stage togeth- evidence introduced at the trial tends failing that counsel was ineffective for presented er with during new evidence the provide to mitigating during evidence the penalty phase. penalty phase of the trial. Defense counsel II-C, length part supra, As discussed at in present did not additional during evidence However, emphasized mitigating trial counsel penalty phase. the evi- approach dence in closing argument jury taken penalty phase counsel to the to the makes during performance penalty phase. clear that his agree was not deficient. findings court’s that the opinion appeal Our on direct and our re- presentation of additional witnesses at the view of the record both indicate that trial penalty phase on the issue of Wisehart’s pursue counsel to intended three lines of mental condition would have been cumula- argument why as to penalty the death case, tive. Under the circumstances of this First, inappropriate. relying on the evidence mitigating already when evidence has been presented during guilt phase, counsel presented, duplicate the failure of counsel to planned argue to inappropri- that death was during penalty phase mitigating evi- ate long history because of Wisehart’s presented jury dence to during guilt problems. Second, mental relying on a crim- phase perfor- does not constitute deficient inologist clergyman, planned counsel to mance. See Schiro v. argue that inappropriate death was because 1201, (Ind.1989) (no ineffective assis- was not a deterrent to crime and was the where, subject tance of counsel religious Third, insanity because an opposition. rely- raised, ing on the defense was psychologist police defense’s and a the defendant was able case, present evidence, typically officer involved in the planned counsel considered mit- argue inappropriate igating, during guilt that death phase be- without rein- persons cause other were troducing involved commit- the same during pen- evidence ting the crime. alty phase).26 Thomas, evidence); Lockhart,
26. See mitigating also Waters v. Hayes 46 F.3d vant (11th 1995) (court (1) (8th (counsel's 1988) Cir. determined that as a F.2d Cir. decision defense, insanity presented result of an present counsel mitigating not to additional evidence re substantial amount garding of mental drinking problem illness mitigating defendant's was a tactic, required subject evidence and "were not de upon "reasonable trial one that was based fense witnesses to another round of cross-exami counsel’s calculated assessment that the risk of required present nation probable [] nor were counsel possible harm exceeded the benefit that resulted”), might redundant evidence” and judgment which witnesses to have vacated on other decision”); "epitome strategic grounds, call is the of a 491 U.S. 109 S.Ct. Reynolds, (1989); Blackburn, Brecheen v. 41 F.3d 1361 n. 13 L.Ed.2d 691 Celestine v. (10th (counsel 1994) (5th 1984) (no Cir. was not prejudice ineffective for F.2d Cir. results failing present mitigating during additional penalty phase evidence where counsel omits mitigating during adequately developed because evidence during guilt adduced evidence guilt phase incorporated sentencing phase into the and additional evidence which would not phase conclusion). changed and the was allowed jury's to consider relc- have years murder consecutively to 60 for the
V charge. approach have While such would of ineffective In to the claims addition argu- practical problems, the faced obvious II, parts of counsel discussed assistance advocacy, clearly ment constitutes zealous III, IV, as defi- supra, attacks ineffective assistance of counsel. aspects perfor- of counsel’s cient certain sentencing. during judicial mance VI First, trial maintains that inef In to the addition claims mitigating circum present counsel failed presented counsel fective assistance sentencing hearing during the which stances IV, II, III, V, supra, parts less than death.
would warrant sentence argues also was denied the effective IV, supra, part we counsel As stated appellate assistance of counsel which during already presented mitigating evidence *25 as claims ineffec was entitled. Just with of during the guilt phase the and discussed counsel, analyze of trial tive assistance we Presenting penalty phase. this evidence appellate of of claims ineffective assistance find again would been cumulative. We have two-part an according to the test counsel performance. no deficient Strickland, 668, 104 nounced in 466 U.S. at Second, trial contends that Wisehart See, e.g., Lowery, at 640 N.E.2d S.Ct. improperly conceded (“standard counsel of for a claim of at review the after presence at the scene of crime appellate counsel ineffective assistance of during vouching penalty for his innocence the counsel”), for trial identical to the standard hearing, coun phase. During sentencing denied, 525, 133 516 U.S. 116 S.Ct. cert. investigator wit as a sel called the defense claiming petitioner A L.Ed.2d 432 witness that Wisehart ness. The testified appellate counsel ineffective assistance of during the present admitted that performance and must show both deficient crime, victim. but that he did not strike the Roche, resulting prejudice. testimony is a alleges that Wisehart either 1120-21. The failure to establish by concession counsel Wisehart fail. And prong will cause the claim to Id. during the crime. We find no defi present appellate counsel was where claim is that already performance. con cient Wisehart failing ap on claim direct ineffective for crime, thereby admitting his counsel, fessed to the of peal the ineffective assistance trial crime, and had presence at the scene of the petitioner both must establish deficient committing of it. Counsel been convicted resulting performance prejudice and on investigator have appears to called appellate coun part of both trial counsel suggest why a sentence Wisehart deserved Conversely, failure establish Id. sel. less than death.27 or prong respect to either trial either with will the entire claim appellate counsel cause Third, argues counsel Wisehart fail. Id. illegal arguing sentence erred uncharged burglaries. based on additional A performance. no Again, find deficient we he was denied the contends that that when Wise- Wisehart reminded the court Counsel murder, appellate of counsel be- assistance he also admit effective hart confessed to the alleged of failure to raise As cause counsel’s committing burglaries. other ted several guilt penalty phase in numerous imposition death errors way to of possible avoid sanction, we no error jury Because find counsel instructions. provide still severe instructions, we giving in the these could sentenced suggested that Wisehart be performance resulting appellate in a find that counsel’s uncharged burglaries, for those regard. in this years imposed not deficient could be sentence of 50 which 2443), respects like was in some arguments Wisehart made several other 27. Counsel (2) why proper less than execute deserved a sentence Wisehart a child and it would not testimony psychiatric showed death: these circumstances. someone under (T.R. problems mental Wisehart serious A-2 A-l phase guilt Wisehart contends guilt phase Wisehart contends the jury erroneously permitted the instructions erroneously failed to advise the instructions Burg Felony to convict him of Murder28 and jury possible guilty by of a “not reason findings of lary29 than unanimous on less insanity” verdict on each count. Wisehart underlying guilt respective on the crimes. court, in the did not raise this issue jury charged Murder instruction on appeal, or in the court. direct jury determining whether appellant’s until brief A claim not advanced simultaneously the murder committed while post-convic appeal in an from the denial of attempting committing or commit Canaan, N.E.2d at tion relief is waived. Burglary Robbery. Wise- crime of either 1, 2 Howard v. (citing jury hart contends that based on the instruc (Ind.1984)). tion, “it is reasonable to infer that some of jurors could have convicted Wisehart A-3 felony burglary allega murder based on the guilt
tion while others convicted based on the rob contends improper bery allegation.”30 Appellant phase Br. of at 109. instructions constituted an However, judicial guilty opinion weight also found about to be ac testimony expert separate Burglary counts of both and Rob corded the of certain witn *26 (and Theft). Thus, First, bery clearly challenges part was a there esses.31 Wisehart Felony jury finding guilt of of Murder of the instruction stated that “the unanimous which necessarily accept respect underlying to the offenses of should not the ultimate (The Robbery. experts Burglary both and same conclusions of the as to the defen count.) sanity insanity.” analysis applies burglary legal to the dant’s or We have However, you jury Felony your 28. The instruction on Murder read as if find from consideration of any propositions follows: all the evidence that of these doubt, proved beyond has not been a reasonable murder, charge To sustain the of the State you guilty. then should find the defendant not prove following: must (T.R. 281.) at committing That the defendant was or First: robbery attempting to commit the crime or of jury 30. Wisehart contends that the should have committing attempt- that the defendant was or guilty find Wisehart been instructed that it could ing burglary. the crime to commit of felony only unanimously finding so, murder of after Second: That when the defendant did guilty burglary robbery, of both and al- him as engaged causing in conduct the death of [the victim], intentional, leged Appel- in the State’s information. Br. of killing whether was lant at 109. unintentional or accidental. you If find from consideration of all the evidence proved propositions that each of these has been challenges following 31. Wisehart three in- doubt, beyond you a reasonable then should find structions: However, guilty. you the defendant if find in expert testimony 1.... You should consider the your all consideration of of the evidence that light testimony presented of all other concern- beyond propositions proved of these has not been doubt, ing development, adaptation functioning you then (T.R. 277.) find the reasonable should process- of the defendant's mental and emotional guilty. defendant not at necessarily es and behavior controls and not jury Burglary 29. The instruction on read as fol- accept experts the ultimate conclusions of the as lows: legal sanity insanity. the defendant's or You charge burglary, must decide the extent of the defendant's mental To the State must sustain disability, any, prove following: if from a consideration of all of relating possible disability. the defendant broke and entered the the evidence (T.R. to such First: That victim]; 295.) building [the or structure of at do, insanity Second: That when the defendant did 2. You are instructed that medical is felony legal insanity commit the or the as as a bar to crimi- intended to felony of Theft not the same Murder; aberration, prosecution. every nal Not mental dwelling. Third: That the structure was a defect or disease will excuse the commission of (T.R. 296.) you your If find from consideration of all the crime. at propositions Lay testimony sanity proper on the is evidence that each of these have issue of doubt, expert proved beyond may then be credited over that of wit- been reasonable (T.R. 297.) you guilty. should find the defendant nesses.
51 value to obligated probative sup- evidence of jury is some “[a] that held before State, in Dudley the issue of v. 480 N.E.2d expert testimony port it.” believe State, (Ind.1985), N.E.2d sanity.” judgment v. 675 vacated on other Gambill 903 (Ind.1996) (citing Duckworth, Bonham by Dudley grounds F.2d (Ind.1994)), reh’g Cir.1988). (7th trial, denied. N.E.2d During Second, improp it was asserts that testimony possibility that it was a elicited jury er the instruction to direct people may other have been involved insanity legal is not the same medical such evidence the crime.32 find every mental disease or insanity and that support an instruction on sufficient as of a crime. excuses commission defect And, aiding, inducing causing or an offense. time direct at the of Wisehart’s At least course, major it is a thrust of Wisehart’s authority controlling there was appeal, claim that he had accom- were statement these statements a correct I, part supra. plices. See State, 468 N.E.2d law. Montano v. See (Ind.1984); Taylor v. A-5 (Ind.1982) (“The existence penalty phase Wisehart contends the ipso deficiency does not of mental disease insane.”). erroneously created a substantial legally instructions a defendant facto render jury that the based its recommen challenges possibility instruction Finally, lay testimony improper aggravators. argu on the issue dation on which stated penalty could be is that several insanity proper and that it ment here because “aggra expert testimony. At least reference to phase over instructions made credited (in appeal, plural) there where vating the time of Wisehart’s direct circumstances” controlling authority alleged, this instruction only there was a substantial one proper penalty statement of the law. See was a based its death risk that (Ind. 1169, 1172 upon multiple aggravating Green v. recommendation *27 State, 678, 1984); 681 Mayes v. 440 N.E.2d referred to factors. While some instructions (Ind.1982). plural, in the aggravating circumstances general those instructions were recitations
A-4
charging
jury
the
principles.
instruction
making
in
it should
the
with what
consider
guilt
the
Wisehart
contends
referred to
penalty recommendation
death
phase
erroneously instructed the
instructions
in the
aggravating
singul
circumstance
the
accomplice liability.
con
jury
Wisehart
as
State,
1170,
v.
604 N.E.2d
given ar.33 See Baird
tends that
these instructions were
(Ind.1992),
resolved
support
where we
the
any credible
1180-81
without
evidence
in
manner.34
only if there
issue
a similar
proper
“An instruction is
exact same
them.
330.)
added).
trial,
(T.R.
(emphasis
guilt phase
Captain
During
the
...
the
32.
possibility that
Moberly
that it was a
testified
State,
committing the
aggravating
did not act alone in
the
cir-
Baird
where
34.In
that he felt
Detective Brown testified
crime.
multiple
the
was a
murder and
court
cumstance
people were
possibility
was a
that other
there
aggravating
repeatedly referred to the
circum-
crime.
involved in the
poten-
plural,
"[a]ny
that
in the
we held
stances
that
arisen in the mind
tial confusion
could have
to above
relevant
instruction referred
33. The
many aggrava-
juror
to how
of a reasonable
following:
the
stated
apply
ting
the
circumstances existed and how
concerning the
making your recommendation
In
separate
murders would
of each
evidence
following
you
penalty,
make the
should
death
by
certainly
dispelled”
have been
instruction
determination:
jury
given
that
State
which informed the
did, beyond
defendant
a reasonable
1. That the
alleged only
aggravating circumstance.
one
committing or at-
kill the victim while
doubt
State,
1170,
(Ind.1992).
604 N.E.2d
Baird v.
burglary,
robbery
tempting to commit
and/or
argues
in his
the instruction
case
that
you
already
have
made.
determination
problem
not as
not cure
because
did
doubt,
That, beyond a
the defen-
reasonable
2.
that it did
specific
Baird
in
as the
instruction
intentionally, and
dant did so
aggravating
point
specifically
out which
circum-
mitigating
exist
That the
circumstances
only
alleged. We
was the
one that was
stance
out-weighed
aggravating circumstance
are
significant.
find Wisehart's distinction
alleged.
fail to
that is
against
aggravating circumstances
A-6
First,
argues
that be-
mitigating factors.
penalty phase
contends the
jury
informed the
cause several instructions
jury
erroneously permitted the
instructions
aggravating
required proof
factors
be-
at tria
consider information not introduced
doubt,
jury may have
yond a reasonable
the in
argument
l.35 Wisehart’s
re-
interpreted mitigating circumstances to
jury
language advising the
that it
struction’s
proof.
have
quire the same burden of
may
“whatever
could determine the law from
rejected
argument.36 See
previously
this
information,”
jury
source of
[its]
Roche,
(citing Miller
A-7 suspended year for He ten sentence Arson. argues that trial should have ad penalty the court contends the Wisehart jury regarding possible the execu erroneously misled the vised the phase instructions procedure weighing tion of this sentence.37 This claim is similar jury regarding the for following § challenges 35-50- the instruction: 36. Wisehart also claims that Ind.Code 35.Wisehart 2-9(c) failing explain is unconstitutional for proof required mitigating for the standard of provides in all The of Indiana Constitution rejected previously circumstances. We have cases, you, jury, right shall have the criminal the State, argument as well. Roche v. 690 N.E.2d In determin- to determine the law and the facts. 1115, (Ind. 1997); 1127-28 Bivins v. law, ing your duty to determine it the it is sworn 928, (Ind.1994). N.E.2d is, correctly, may in whatever and as it fact information, your of the source of or the basis argument, contending the your your duty 37. This as it does that It is to consider and conclusion. weigh given you reject jury more about sen- and if should have information the instructions them, penalty, appears arbitrary tencing rejection alternatives to the death shall not be such argument you regard proper with Wisehart’s that the and sufficient inconsistent without what as by advising prosecutor committed misconduct reason. jury years the maximum term of for Mur- of (T.R. 336.) der. case, judge, who in what capital in to the turn decides sen- claim raised another to a 1092, impose. 1101-02 v. tence to Johnson (Ind.1992). Johnson, In after the defendant Felony Murder convicted of B Arson, Burglary and the trial court of course contends that he was denied the Wisehart jury penalties for possible advised appellate counsel effective assistance of be- argued appeal on The defendant Murder. argue of counsel’s failure to on direct cause have error for the court not to that it was penalty appeal that Indiana death statute penalty for possible of the advised applied. face and as is unconstitutional its well. We that “it was Arson held support theory, In of this now Wisehart rais- more restrict this to the error to instruction challenges for our es several constitutional i.e., potential consequences, those immediate previously This consideration. Court has of mur- stemming guilty from the verdict of posi- disposed of these adverse to his issues support argument der.” Id. at support Because the does not tion. law court’s discretion of the exercise claims, counsel not ineffective for these stronger here convic-
is even
where the arson
failing
appeal.
them
to raise
on direct
unrelated to
at issue.
tion was
the crimes
B-l
A-9
alleges
pen-
that Indiana’s death
penalty
Wisehart contends the
alty statute is unconstitutional because it
erroneously advised the
phase instructions
require
finding
an independent
does not
jury that its verdict was a recommendation
prior
subjecting
cause
a defen-
probable
bind
that did not
the court.38
recently
capital procedures.
dant to
re-
argument
couches his
in the terms
Cald
jected
Matheney
v.
this claim
320, 328-29,
Mississippi 472
well v.
U.S.
(Ind.1997).
883, 904
2639,
(1985),
circumstance to
the
we also
unsupported
permits
particular
claim that
the statute
criminal sanction.
jury
mitigating
the
to consider the absence
Third,
§
argues
he
that Ind.Code
35-50-2-
an aggravating
evidence as
circumstance.
9(b)
it fails to
is unconstitutional because
902; Bivins,
Matheney, 688
See
N.E.2d at
only
provide
may
that the sentencer
consider
at 947
642 N.E.2d
sup-
charged aggravating circumstances
Eighth,
argues
that
port
penalty
of a death
recommendation.
35-50-2-9(e) unconstitutionally
§
Ind.Code
recently
adverse to
We
decided this issue
require
jury
on
fails to
be instructed
position. Matheney,
N.E.2d
688
“any
mitigation
of both
definition
other
at 905.
appropriate
circumstances
for consideration”
why
requires
and also on
the law
consider
Fourth,
argues
he
Ind.Code
mitigating
ation of
circumstances.
The
35-50-2-9(c)
§
is unconstitutional because
“mitigation”
“any
other circum
terms
require the
to consider
does not
trier of fact
appropriate
stances
for consideration” are
mitigating
per
proffered
all
The
evidence.
beyond
comprehension
average
of the
language
preamble
of this
missive
contrary
lay juror,
to Wisehart’s contention.
(“[t]he mitigating circumstances
subsection
Matheney,
688
at 907.
In
See
N.E.2d
section”)
may
be considered under this
event,
adequately
the trial court
instructed
(“[a]ny
mitigator
and of the “catch-all”
other
jury
meaning
as to the
those terms.41
appropriate
circumstances
considera
Ninth,
tion”)40
argues
prior
he
that the absence of
optional
does
render
consider
history mitigator
criminal
is unconstitutional-
jury
proffered
miti
ation
relevant
ly vague.
recently rejected this
claim.
gating
Matheney,
evidence.
N.E.2d at
688
v.
Wrinkles
690 N.E.2d
1167-68
(Ind.1998).
Florida,
also
See
v.
428
Proffitt
242, 257,
2960, 2969,
96 S.Ct.
49
U.S.
L.Ed.2d
Fifth,
argues
he
Ind.Code
(1976),
denied,
reh’g
913
429 U.S.
97
35-50-2-9(c)(2), (4), (5),
§§
are un
198, 50 L.Ed.2d
S.Ct.
constitutionally vague
preclude the con
mitigating
of relevant
evidence.
sideration
B-3
mitigator (“[a]ny
catch-all
other circum
aspects
also
attacks several
consideration”)
appropriate
prop
stances
jury
balancing process in
which
en-
jury
erly allows
relevant
consider all
gages
sentencing
reach its
recommenda-
presented
mitigating evidence
to it. See Bi
tion.
vins,
55
Wisehart,
it,
Second,
appeal.
argues
jury
in his direct
See
484
he
that the
recommen-
§§
35-50-2-
grounds, 491 U.S.
105
109 S.Ct.
unwilling to
and the
in
death
second
(1989)); Miller, 623 N.E.2d
L.Ed.2d 691
see
dulge
presumption
him the
of innocence be
at 409.
insanity
of his invocation of the
de
cause
Third,
jury recom
he contends that
grant
challenge
fense. “The
or denial of a
§
provisions of
35-50-2-
mendation
Ind.Code
juror
a
is within the discretion of
they provide
unconstitutional
9 are
because
court,”
decision will be sustained
mandatory
finding
penalty upon
a
death
a
for
“illogical
arbitrary.”
or
unless
Shane v.
previously
facts. This
ad State,
(Ind.1993); Baird,
of certain
Court
425,
615 N.E.2d
426
rejected
claim. Burris v.
dressed
this
1186;
604 N.E.2d at
Jackson v.
597
961,
(Ind.1994),
(Ind.1992).
642 N.E.2d
cert.
950,
968
960
do not
N.E.2d
find
319,
922,
516
133
denied
U.S.
116 S.Ct.
challenge
the trial court’s denial of the
for
(1995); Bivins,
221
N.E.2d at
L.Ed.2d
illogical
arbitrary.
cause to be
may
(jury
mercy and is not
consider
convict).
bound to
dire,
juror
During
prospective
voir
stated that she believed that most
Wiand
Fourth,
argues
recommen
that the
found,
circumstances,
beyond
person
guilty
§
provisions of
35-50-2-9
dation
Ind.Code
taking
doubt of
someone’s life
reasonable
unconstitutionally
require
fail
the sentenc
juror
put to
death.43 This
said
should
ing jury
provide
findings or ver
written
impartial as to
could be fair and
she
sentencing
require
and fail to
dict forms
guilt and that she would
issue of defendant’s
specific
findings. We
to make
written
court
the court’s instructions
various
follow
disposed
argument
previously have
of this
(who
served
Trial
also
matters.
counsel
Harrison,
contrary
position.
to Wisehart’s
counsel)
juror
to have this
appellate
moved
28;
at 1259
n.
Burris
motion was over
for cause but the
excused
denied,
(Ind.1984),
cert.
ruled.
L.Ed.2d 809
105 S.Ct.
469 U.S.
dire,
during
prospective
Later
voir
Fifth,
juror Boyland
§
that he felt was
argues
35-50-2-
indicated
that Ind.Code
9(h) (1982),
contradictory”
a defendant
provision, is
“kind of
the automatic review
innocence;
provide
insanity and actual
it does not
maintain both
unconstitutional because
defense,
insanity
meaningful appellate
capital
of a
if he were to assert an
review
be that
I
“my
thoughts
Wise-
firsthand
would
conviction and sentence.
defendant’s
issue,
...
rejected
admitting
crime
to the
hart
and this Court
would be
raised
Illinois,
imposed,
Morgan
U.S.
the State is not entitled
execute
relies on
43. Wisehart
(1992),
Morgan,
112 S.Ct.
death (who appellate counsel also served as coun- VII sel) juror to moved have this excused to he is entitled Wisehart contends motion overruled. cause but the was post-conviction political na relief because appellate perfor- not think counsel’s We do public appointments ture of the defenders challenge failing mance in the trial court’s County alleged at in Madison counsel’s rulings appeal on deficient. The first was independence tendant from the trial lack of juror say did not she would automatical- that judge justify presumption a of ineffectiveness ly penalty say vote for the death and did that at “Madison trial. He contends that court’s she would follow the instructions. County pro system Defender did not Public juror say not would The second did independent representation recom vide the employ presumption of innocence and mended the American Bar Association say particularly that he did would be cautious standards, thereby saddling with [defendant] deciding guilt penalty in the death because conflicting counsel who labored under being sought. challenges When Appellant duties.” Br. of at 126-27. As did rejected, did cause were trial counsel not use Roche, petitioner opinion, in our recent peremptory challenges to strike either 1134-35, 690 N.E.2d at Wisehart’s claim is jurors despite having challenges these such Cronic, grounded in the dicta of 466 U.S. at available.45 Wisehart does not contend that 659 n. at 104 S.Ct. 2047 n. 80 L.Ed.2d challenge constituted the failure so ineffec- 657, suggests that will be certain there counsel, As trial tive assistance counsel. presume where the will circumstances court good position appellate counsel in as a assistance counsel ineffective without a anyone judgment to make as to whether requiring petitioner meet his or her presence jury on denied his a their client (as burden under Strickland. Here appeal regu- trial. And fair courts have Roche), circumstances, surrounding in larly no trial under found court error similar cluding performance counsel the actual Shane, 615 circumstances. See N.E.2d appeal, trial and on direct rebut claim of Jackson, 427; 961; 597 N.E.2d at Smith v. general presumption. a (Ind.1982). VIII
D alleges makes a brief set of that he is entitled additional relief miscon arguments appellate counsel on di because of prosecutor appeal part was ineffective. As duct on of the at trial. rect we noted matter, petitioner preliminary post- a supra, arguing As we note that ineffective assis appellate may sought re tance of counsel must demonstrate conviction relief performance prejudice. spect that were both deficient issues available on direct denied, Lowery, appeal. main 640 N.E.2d at cert. Here Wisehart asserts testimony part regard appel- discussed in This was also II- 46.Wisehart contends appeal B-2, late was ineffective in his direct counsel supra. argue because counsel failed the false confes- issue; only arguments sion made skeletal as to (Ind. 45. See Shane including selection issues without the tran- (court 1993) deny found error no trial court script; needed; why sociologist explain failed to ing challenge for cause but noted "if [defen to establish of discretion in failed abuse accept juror had been forced to because dant] Joy testimony; Bradshaw and exclusion of failed ty- left, challenges peremptory lack of an issue support arguments several with authori- presented”). might have been
57 testimony against find the raising prosecutorial mis- Wisehart. We basis for these no supports on this contention conflict- collateral evidence claims for the first time on conduct ing post-convic- inferences and so affirm the newly not discovered argue does review—-he no tion court’s determination that there were counsel or ineffective assistance of evidence agreements.48 It from the rec- such is clear ubiquitous error even the fundamental suspect in ord that Johnson was a usual argued that But while the doctrine. State burglaries, up Anderson area often rounded post-eonvic- claims were waived at the these crimes had committed. At after such been level, court to address them on tion elects Tracy post-conviction hearing, Detective here and as well. the merits so we will major par- testified that Johnson had been a reviewing prosecu claim of When a burglary in church occurred ticipant a which “(1) misconduct, torial we must determine: shortly of which Wisehart before murder by prose whether there misconduct filed Charges was convicted. were never misconduct, cutor; un whether against Tracy that anoth- Johnson. testified circumstances, placed the defendant der officer, charge Hay, er Detective who was ‘grave position peril’ a to which the investigation, recommended that subjected.” should have been defendant prosecuted co- not be after Johnson Johnson (Ind.1996) State, 332, Kent v. 675 N.E.2d 335 operated police with case. the Wisehart 1055, State, (citing Smith v. N.E.2d 1063 516 However, Tracy that the recommen- testified State, (Ind.1987)); N.E.2d Schlomer v. prosecute may not to have been made dation (Ind.1991). 950, gravity peril “The charged other because Johnson was with probable persuasive turns on the effect of the Tracy burglaries. testified that he knew decision, jury’s misconduct on the not on the between the murder no connection Kent, degree impropriety of the conduct.” prosecute case and the decision not to John- State, Bradley (citing N.E.2d at 335 v. burglary the church son for and Wisehart (Ind.1995)); testimony Hay 649 N.E.2d 107-8 Marshall presented no from on this State, (Ind.1993). N.E.2d issue. trial, eve of
On the
Johnson
public
was arrested for
intoxication and theft
A
officers,
Reed
Both
two
and Wasilewski.
supra, Gregory
As noted
John
Scott
Moberly
at
Reed and Officer
testified
Officer
key prosecution
a
son was
witness. Wisehart
Moberly
post-conviction hearing that
impermissible prosecutorial
contends
drop
Reed and asked Reed to
these
called
prosecutor
misconduct
when
occurred
charges against Johnson because Johnson
respond
accurately
completely
failed to
in the
In a
was a witness
Wisehart case.
agreements
a motion to
between
reveal
report filed
months later
still
written
some
prosecution
“The
the State
Johnson.47
burglary case
another
in which Johnson
a
agreements
disclose all
made with
must
public
suspect,
Wasilewski wrote that
may
witnesses]
which
witness
influence
charges
had been
intoxication
theft
testimony.”
622 N.E.2d
McCord v.
helping on a
dropped because Johnson “was
(Ind.1993).
504, 509
also McBroom v.
See
(R.
2730.)
2724;
part,
For his
murder.”
(Ind.1988).
But
Moberly
requested
testified
he had
duty
only
a con
to disclose arises
when
dropped
like
charges
be
because he “felt
promise
firmed
exists. Id.
testify
being
Mr. Johnson
scheduled to
witness,
major
I felt
agree
going
that an
and he was
Wisehart contends
him from
discourage
want to
ment existed between
and the State
like we didn’t
Johnson
whereby
pending
testifying
give
or cause or
him reason
the State would dismiss
(R.
1269-70.) Moberly
against
also testified
charges
in return for
to.”
Johnson
(Ind.1985),
appeal
rt. denied 476 U.S.
47. This issue was
on direct
decided
ce
Wisehart,
against
106 S.Ct.
that he
Johnson
reasonable
that
charge and
there had
the
did indicate before trial
fenses to the theft
that
While
State
subpoena Fuqua
might
might
would
and
or
agreement
no
between the
and
been
State
trial,
him
witness at
the trial
not use
as a
testify
dropping
in return
the
Johnson
for
that
also
defense counsel
court
informed
charges.
subpoena Fuqua
well.
could
as
Wisehart
point
Because
evidence does not
clear
the
Fuqua avail-
The failure of the
to have
State
ly
unequivocally
and
in the direction of the
calling
preclude
from
able did
Wisehart
agreement
of an
the
existence
between
State
Fuqua as a
v.
witness. See Jenkins
Johnson,
the post-conviction
we affirm
and
(Ind.1993) (defendant
N.E.2d
793
vio
court’s conclusion that the State did not
calling
may
had burden of
witnesses who
obligations.49
John
late its disclosure
See St.
defense).
have aided
the
(Ind.1988)
v.
N.E.2d
Second,
the
Wisehart claims that
(citing Burgin
(“...
(Ind.1985))
prosecution improperly
turn over
refused to
1156-57
concrete
without
autopsy report
week
the victim’s
until one
understanding
of
have not
evidence
we
disclosure”).
McCord,
post-
supra,
trial.
discussed
the
required
622 before
As
See also
(“When
discovery
conviction court found no
violations
hopes
N.E.2d at
a
for
witness
by the State.
review
the record
leniency
exchange
testimony
Our
of
for favorable
prosecution
indicates that the
Wise-
advised
and the State neither confirms nor denies
autopsy report
that the
hope,
express
hart
was available
agreement
then an
does
exist.”).50
police property
approximately
the
room
weeks
trial.
three
before
B
Third,
that the
Wisehart claims
multiple
prosecution
improper arguments
Wisehart raises
additional
dur
made
by
prosecu
guilt phase.
improper
ing
claims of
behavior
the
the
Wisehart
that the
claims
tor,
prose
prosecutor repeatedly
none of
rise to the
which
level
referred to Wisehart
“scary.”
is
cutorial misconduct such that Wisehart
Our review of the record reveals
First,
prosecutor
entitled
relief.
the
referred to Wisehart’s
prosecution improp
alleged
scary,
that the
call
Wisehart claims
actions as
but did not
Next,
erly misrepresented
key
“scary.”51
alleges
that it
a
would have
prosecutor
agreement
(2)
49. Because
the
vio-
we find
did not
unnecessary
between the State and Johnson and
any
obligations,
late
disclosure
it is
the record reflects that Wisehart's counsel
prosecutor’s
examine
to
placed
whether
conduct
Hay
cross-examined both Johnson and Detective
position
grave peril.
Wisehart in a
question
cooperation
on
of Johnson's
indicating
police,
in-
that Johnson had been
police depart-
The evidence indicates that the
burglaries
a
he
volved in
number of
for which
dropped charges
ment did not
and
file
to secure
charged.
was never
We believe
the cross-
testimony
of Johnson. We believe that
regarding
examination
these witnesses
this
agreement,
whether or
was a
not there
formal
general
by
matter
a
awareness Wise-
indicates
certainly
Johnson was aware of the benefits
police in
hart’s counsel of the conduct of the
securing
receiving
providing
police
for
what
testimony.
Johnson's
See footnote
thought
recognize
testimony.
to be
valuable
infra,
accompanying
text.
437-38,
Kyles Whitley,
that in
514 U.S.
1555, 1567,
(1995),
115 S.Ct.
penalty presume the for Murder.57 We § See Ind.Code 35-38-1-7 statute. the instruction. followed *35 inappropriate prosecutor to It was for the im arguments reasons for advance these as Seventh, contends the Wisehart imposed a death is posing death: sentence during prosecution improperly argued the done, not what he for what the defendant has af penalty acted alone phase that Wisehart However, jurors might do. we believe or she during phase an ac tendering guilt ter the system liti recognize that our of adversarial liability During the complice instruction. overly inevitably gation experience will some guilt phase, there was some evidence Here, advocacy time. zealous from time to in participant not the the Wisehart was sole instructed, jury to a death such, pursuant the liability in accomplice crime.58 As statute, aggravating fac sentence to what requested. Dur appropriately struction was found in tors could be order to recommend a discussed ing penalty phase, the the State presume that the 50—2—9(c)(4), statutory death sentence. § Ind.Code 35— prose such instruction and find no relatively followed minor mitigating circumstance of cutorial misconduct. prosecutor’s argument participation.59 The against mitigator the existence of this IX “absolutely evidence that that there was no participated in crime.” While this Wisehart contends that the sentenc others argument may ing have been it was penalty phase well order was unreliable because guilt phase materially finding in tendering based on incorrect inconsistent “A accomplice liability, mitigating we find there were no factors.60 struction on mitigating argument duty The was made court is under no to deem impact harmless. availability by every alleged comment factor so the defendant specific as a simply supported by it is some evi participation” mitigator. “minor Neither because Bivins, in record.” N.E.2d at penalty phase post-conviction dence 642 at the nor mitigator contend this 952. Our review the record indicates did Wisehart And, course, predi mitigation court did all the the trial consider available. Wisehart, presented by but found cates much of his claim for evidence “newly-discovered mitigating.61 evidence” none of the circumstances to be relief on accomplice by 57. instruction read was an a murder committed as follows: partic- person, and another the defendant’s impris- person A who commits shall be murder relatively ipation was years, minor.” a fixed term of with not more oned for 40 years aggravating circum- than 20 added for raising asserts years 60. Wisehart no basis or not more than subtracted for stances mitigating 10 the first review but claim for time on collateral circumstances ... we address it on the because the State on merits trial, During guilt phase Captain 58. VIII, generally supra. appeal part does so. See Moberly possibility that it testified was a committing did not act alone following findings court 61. The trial made the he felt crime. Detective Brown testified that mitigating that there were no circum- conclude possibility people were there was that other stances: 32, supra, in the crime. involved footnote Cf. (1) sig- had a Evidence showed that defendant accompanying text. history prior conduct. nificant criminal 35-50-2-9(c)(4) was some provides § There evidence defendant Ind.Code that it is problems mitigating defendant emotional from time circumstance where "the some Massiah, we to counsel in violation of under Furthermore, explained in its the trial court analysis set forth Kuhlmann v. to rise take why it not find evidence order did Wilson, 106 S.Ct. with- 477 U.S. mitigating circumstances to the level of Supreme There the penalty L.Ed.2d meaning in the of the death statute.
Court stated that “the Sixth Amendment
by
happen
violated
luck or
whenever —
X
incriminating
stance —the State
obtains
post-
alleges that he is entitled to
right
the accused after the
statements from
relief because
certain errors
conviction
s
to counsel
attached.”
Id. at
ha
during trial.
committed before and
Moulton,
(quoting
at 2630
Maine v.
S.Ct.
159, 176,
477, 487,
106 S.Ct.
88 L.Ed.2d
U.S.
A
(1985)).
A defendant does not make out
post-
that he is
Wisehart claims
entitled
“simply
a Sixth
violation
Amendment
State-impermis-
conviction relief because
informant,
showing
either through
that an
sibly
Gregory
as its
Scott Johnson
used
voluntarily,
prior arrangement
reported
agent
acquire
against
information
Wise-
incriminating
police.
statements to the
hart, in
of Massiah v. United
contravention
Rather, the
must demonstrate that
defendant
States,
U.S.
84 S.Ct.
took
police
and their informant
some
*36
(1964).62 Massiah,
In
the Unit-
L.Ed.2d
action, beyond merely listening, that was de
held
a
Supreme
ed
Court
that
defen-
States
deliberately
signed
incriminating
to elicit
re
counsel is
when the
right
dant’s
to
violated
Kuhlmann,
at
marks.”
477 U.S.
intentionally
government
a situation
creates
in
at
evidence
this ease does
S.Ct.
2630. The
likely
incriminating
induce an
statement
to
sufficiently
not
indicate that the State took
in
charged
from a
defendant
the absence
incriminating
some deliberate action to elicit
Massiah,
at
377 U.S.
84 S.Ct.
counsel.63
statements from Wisehart.
at
contends that
1203. Wisehart
Johnson’s
suggests
the record
that the
Our review of
testimony
trial
that
told
to
Johnson
only
indicating that
the State en
evidence
I’m
“try
crazy”
it look like
falls into
to make
post-
in
was the
gaged
improper conduct
category.64
this
testimony
conviction
of Johnson
this evi
trial
addressing a
a de
dence contradicted Johnson’s
testimon
In
claim that
y.65
trial,
a
right
At
was
star witness for
Sixth Amendment
Johnson
fendant was denied
raising
62.
no basis for
this
no evidence
defendant
Wisehart asserts
time but there was
that
collateral review but
claim for the first time on
or
the influence of extreme mental
was under
the
we address it on the merits because
State on
he
the
disturbance when
committed
emotional
VIII,
appeal
generally part
supra.
does so. See
murder.
(3)
par-
evidence that
was no
the victim
There
States,
377 U.S.
63.
In Massiah v. United
ticipated
consented to the defendant’s
in or
(1964),
S.Ct.
dant,
12 L.Ed.2d
defen-
conduct.
codefendant,
charged
along
was
with a
(4)
possibility
to
there was reference
While
possession
a
with
narcotics aboard U.S. vessel.
may have been
in the
involved
that others
crime,
attorney and was re-
The defendant retained an
proof
no
of such involvement.
there was
Subsequently,
on
the codefendant
leased
bail.
Furthermore,
participation
defendant’s
agreed
cooperate
the State in its contin-
to
with
was not minor.
investigation
defendant. Pursuant to this
ued
(5)
act-
was no evidence
defendant
There
agreement,
to listen to
the State was able
conver-
ed
domination of another
under the substantial
defendant and
sations between the
codefendant
person.
during
defendant made
of which
sev-
course
capacity
appreci-
had the
to
The defendant
incriminating
The statements
eral
statements.
conduct,
criminality
his
conform
ate the
to
eventually admitted into evidence over de-
were
law,
requirements
to the
his conduct
objection.
fendant’s
suffering from a
not
mental disease
was
defect.
(7)
to be
64. Wc
this statement
incrimina-
consider
man,
young
regard-
a
The defendant is
but
ting
insanity
suggested that Wisehart’s
because it
youth, defendant led life of crime
his
less of
defense
fabricated.
placed or
in
been
incarcerated
several
and has
trial,
During
alluded
defense counsel
to the
institutions.
(T.R.
ordinarily
2451-55.)
were
al-
fact that former inmates
at
post-conviction
principal
in
his
value was
than Johnson’s
statements
the State. While
took
damaging
suggest
the State
deliberate
introducing highly
letters Wisehart
testimony
elicit
from
actions to
Wisehart.
priso
in
written him when the two were
had
Defense counsel’s cross-examination of John-
n,66’
that he had visited
he also testified
that on several occasions
son at
reflects
Wisehart,
jail
aware that
provided
police
helpful
in-
Johnson
witness,
him,
had told
would be
Johnson
crimes
regarding
formation
other
in order
(T.R.
“Try
crazy.”
like I’m
to make it look
plea
engage
negotiations
for his own bene-
1118.)
prior
Johnson also testified
gives
case
fit.68 The evidence
rise
arrest,
asked Wisehart
alleg-
inference that
Johnson obtained the
killing
old ladies.
whether
had been
edly
on
in-
incriminating statements
his own
testified that Wisehart demonstrat
Johnson
dependent
any alleged police persuasion
from
language (dropping
head
body
certain
his
ed
changed
story at
post-con-
and then
it)
shaking
suggested
which
to Johnson
hearing
against
prose-
viction
retaliate
wrong.”
vigor
something
Despite
“that
cutor.69
attempting
paint
ous cross-examination
self-interest,
accept
Even if we
at face value
acting
Johnson as
out of
John
Johnson’s
testimony that
him to
acting
encouraged
that he
the State
gave
son
no indication
Wisehart,
information
solicit
from
this testi-
the State’s behalf.67
mony
showing
did
constitute
sufficient
hearing,
During
John-
right
In
to counsel was violated.
encouraged by the
testified that he was
son
Kuhlmann,
the court
that a
where
found
go
jailhouse
State
visit Wisehart
police officer instructed an informant to lis-
crime
to solicit information about the
order
regard-
to the
ten
defendant
information
than
and that he visited Wisehart on more
ing
participants,
other
identities of
one occasion. Johnson also contradicted
court held
because the informant never
*37
testimony
given at trial as to the
he had
any questions
asked the defendant
concern-
“[t]ry
crazy”
like
and
to make it look
I’m
only
ing
pending charges
and
listened to
“killing old ladies” statements.
“spontaneous”
the defendant’s
and “unsolicit-
trial,
Subsequent
to Wisehart’s
Johnson
statements,”
no
ed
there was
violation of the
capital
Kuhlmann,
himself was
murder in an
convicted
right
to counsel.
477
at
U.S.
The
460,
unrelated case and sentenced to death.
106 S.Ct.
2630. The
test
Kuhlmann
prosecutor responsible
same
for Johnson’s
has not been met because there
no evi-
was
questioned
questions
Johnson at
specific
conviction
dence as to
Johnson
hearing
post-conviction
alleged
was
Wisehart in
to obtain
Johnson
asked
order
incriminating
There is no
openly hostile.
evidence other
statements.
visitors,
explained
independent
police).
to be
but
never
initiative
lowed
Johnson
own
Darden,
1507,
United
v.
70
See also
States
F.3d
how he was able to visit Wisehart nor did John-
(8th
1149,
Cir.1995),
1541
cert. denied 517 U.S.
suggest
encouraged
the State
such visi-
son
1449,
(1996) (where
116 S.Ct.
68. See v. 1336 Dodson N.E.2d in the of counsel cused absence suffices estab- (Ind.1987) (where a fellow inmate who was lish a Sixth Amendment violation.’’ Maine v. Moulton, incriminating trustee testified about statements 474 U.S. 176 n. 106 S.Ct. defendant, However, by made court found no Sixth n. L.Ed.2d provided Amendment violation because the fellow inmate has with no Wisehart us evidence incriminating analysis. collected the statements on his which to undertake such an (T.R. committing Burglary. the victim support find no while evidence 9.) III, Burglary, improperly set forth the used Count claim either the State deliberately specific that Wisehart contends agent its that it elements or Johnson missing I. the infor- incriminating from were in Count Because tried to obtain statements sufficiently whole notified mation read as violation of Massiah. And even Wisehart charged, crimes we do not improperly did Wisehart of the if we assumed that the State notice, due by using find Wisehart denied information from Wisehart elicit of law. process, due course agent, as its the “conduct does Johnson automatically require reversal.” See Parker (Ind.1989). C “try crazy” like I’m make look While that he is en Wisehart contends have an must be assumed to had statement post-conviction titled to evi relief because insanity adverse effect on Wisehart’s de suggests jury impermissibly dence that the fense, very part it was a minor of Johnson’s polygraph To obtain considered evidence.71 testimony. real value to the Johnson’s State juror exposure relief on a claim of to extrin concerning the testimony in his volumi evidence, appellant sic an must meet correspondence highly damaging which nous three-part test Fox they while sent Johnson were (Ind.1984), by pre showing testimony The prison. rest of his (1) ponderance the evidence that: sideshow. (2) occurred; exposure extrinsic material evidence; exposure supported by B a likelihood that the verdict there is alleges that he is enti was affected. We find Wisehart failed post-conviction relief because the tled to meet this test. charging Felony Mur State’s instrument hearing, During alleges was der was defective.70 Wisehart 31, 1994, January introduced the notice, process, and due denied due course trial, juror in affidavit of a the 1983Wisehart not allege because the did com law State of which follows: the entire substance is as Felony thereby count and pletely the Murder trial, During Mark Wisehart’s I learned eligible the class for the narrow of individuals polygraph that Mark Wisehart taken a penalty. purpose of informa death *38 jury brought had been to the test. The provide tion is to a defendant notice of courthouse, preparing begin was to charged for so that he the crime which he is not court we were told court would when Myers prepare to a defense. v.
is able day. I that learned the court held (Ind.1987). 1360, sup In 510 N.E.2d 1366 Mark session had been canceled because argument, port of his Wisehart contends that I polygraph to take a test. Wisehart was I, Murder, failing for was deficient to Count gave not me the information do recall who (1) into allege that broke the vic Wisehart polygraph. polygraph, After the about the in apartment that Wisehart tim’s continued, and I learned the the trial never felony specific a therein. tended commit polygraph test. results of Mark Wisehart’s specifically the count did not While Murder (R. 2217.)72 point us to in the at Wisehart does not allege that Wisehart broke victim’s any any testimony other specif commit live or evidence apartment with the intent to a kind on felony, charge it did that Wisehart killed this contention. ic newly We note raising claims discovered evidence. Wisehart no basis for this 70. asserts test, on collateral but claim the first time review that to under this Wisehart must succeed the address it on merits because State on we appeal the showing diligence a that due was used to make VIII, part supra. generally so. does See discover the evidence. raising Although no basis for Wisehart asserts acknowledge generally that 72.We references review, we it as this claim on collateral address stipu polygraph a exams are inadmissible absent reasonably a to assert claim for a one understood by parties. Willoughby v. lation See both newly discovered new trial based on evidence. 570, (Ind. 1996) (citations omit- 576 I, part supra, analyzing the test used See 64 averment, may be warning because that silence standing silence conclude that alone, Fifth nothing not entitle Wisehart to than an
as it does
does
more
exercise
Ohio,
holding
Doyle
in Fox
426
post-conviction
right.
relief. Our
See
v.
Amendment
2244-45,
may
610, 617,
2240,
determine the effect
emphasized
we
49
96 S.Ct.
U.S.
only
prov-
after it
the extrinsic evidence
is
exemplar
the
L.Ed.2d
Here
voice
91
of the evidence that
by
preponderance
a
en
had been
give
which
refused
Wisehart
jury
the material com-
saw or heard
the
comparing
sought
purpose of
for the sole
Fox,
N.E.2d
1093. The
plained of.
457
in an
with that recorded
Wisehart’s voice
any
gives
other
affidavit
no indication
anonymous
It was
phone
police.74
call to
juror was
of this information. See
aware
sought
for testimonial75
self-incrimina
1040-41
Butler v.
event,
purposes.
any
compelled pro
ting
In
(Ind.Ct.App.1993) (juror learned that some-
exemplars
not violate
duction of voice
does
gun
prosecution
a
witness on
one fired a
v.
the Fifth Amendment. United States
testify,
morning
supposed
she
Prewitt,
(7th Cir.1977),
553 F.2d
that while there was
the court concluded
135, 54
cert. denied 434 U.S.
98 S.Ct.
juror’s knowledge,
support
evidence
(1977) (citing
L.Ed.2d 104
United States
defendant failed to demonstrate a sub-
Dionisio,
764, 772,
410 U.S.
S.Ct.
jury
possibility
improp-
that the
stantial
(1973),
California,
L.Ed.2d
Gilbert
influenced).
erly
does
contend
Wisehart
266-67,
1951, 1953-54,
388 U.S.
S.Ct.
juror
any
provided
post-con-
other
(1967)).
such,
As
comment
L.Ed.2d
concerning
any
court with
information
viction
ing upon
Doyle.
not violate
them did
Additionally, the
polygraph
a
test.
affidavit
gives no indication
presented
E
juror’s
affected this
at-
that this information
alleges that he is en
any way.
case in
titude toward the
Without
titled
relief because
showing
any
facts
of these
penalty
state’s offer to dismiss
death
impact
or were used
on
verdict
mitigating
verdict,
should
considered
have been
improperly
arriving
at a
no claim
circumstance.76 While Wisehart contends
for relief is established.
offered
State had
to dismiss
D
penalty request
straight-up guilty
for a
death
plea,
suggests that
the record
substantial
contends that he is en
placed
were
on the of
additional conditions
post-conviction relief
titled to
because
event,
In
fail
evi
fer.
we
to see how
jury’s
prosecutor
attention to
called
drop
dence that
the State offered
exempl
supply
refusal to
voice
guilty
penalty charge
exchange
death
for a
argues that this
an im
ar.73 Wisehart
plea
Mitigating
a mitigating
circumstance.
post-arrest, post-
permissible comment
“any aspect
Doyle
circumstances are
of a defen
Miranda silence in violation
v. Ohio.
*39
trial,
may
record
During
dant’s character or
the State
comment
post-Miranda
circumstances of the offense that the defen-
upon
post-arrest,
a defendant’s
3176,
(Ind.
ted);
contempt
v.
and was held in
of court for this refus-
Conn
1989).
al.
Muniz,
582, 589,
raising
Pennsylvania
75.
v.
no basis for
this
See
496 U.S.
73.
asserts
2638, 2643-44,
time on collateral review but
110 S.Ct.
than death.” Lockett
er Street
102, 105(Ind.1991). Furthermore, provisions (prohibiting the admis
such Evid.R. compromise prove
sion offers to claim) §
invalidity and Ind.Code 35-35- agree (prohibiting plea the admission of
3^4 court) by a show a approved
ments not
strong compromise and set policy promoting be undercut
tlement which would
approach Wisehart advocates.
Conclusion affirm the court’s deni- petition post-
al of Mark Allen Wisehart’s
conviction relief. C.J.,
SHEPARD, and DICKSON and
SELBY, JJ., concur.
BOEHM, J., except part I-B- concurs
3; concurs result of nevertheless I forth in
part part for the reasons set I-B-l part I-B-2. al., McKINNEY, Appellants- et
David
Defendants, Indiana, Appellee-Plaintiff.
STATE of
No. 49S02-9709-CV-483.
Supreme of Indiana. Court
March