MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 17 2016, 8:59 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana
Steven H. Schutte Kelly A. Loy Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyrice Halliburton, October 17, 2016 Appellant-Petitioner, Court of Appeals Case No. 20A03-1604-PC-685 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Terry C. Appellee-Respondent. Shewmaker, Judge Trial Court Cause No. 20C01-1403-PC-7
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 1 of 21 [1] Tyrice Halliburton appeals the denial of his petition for post-conviction relief.
Halliburton raises one issue which we revise and restate as whether he was
denied the effective assistance of trial counsel. We affirm.
Facts and Procedural History
[2] The relevant facts as discussed in Halliburton’s direct appeal from his
conviction for murder follow:
On March 18, 2008, responding to a 911 call, police discovered the lifeless body of Sheena Kiska in her apartment in Bristol, Indiana. The base of her skull was fractured, a stab wound of great force had gone through a rib and organs, and a knife wound had severed her carotid artery as well as the jugular veins on both sides of her neck. In all, Kiska had received more than fifty stab wounds. Multiple bloody knives were found in the apartment, and blood splatters, smears, and droplets were abundant in the apartment. Two days later officers returned to the apartment to conduct further investigation but were unable to gain entry because other officers had changed the lock on the door for security reasons. Halliburton, who lived in the apartment next door, observed the officers having difficulty entering Kiska’s residence and retrieved a tool from his own apartment that appeared to be “a little screwdriver that kind of ha[d] a bend on the top of it.” Tr. at 225. With the officers’ permission, Halliburton used the screwdriver to unlock the door in a manner the officers “had never seen” before. Tr. at 225.
Halliburton was interviewed by the police three different times in the days following Kiska’s death. During the first and second interviews, Halliburton stated that he left for a veterinary appointment at 1:15 the afternoon of the killing but claimed to have seen Kiska and her daughter standing outside by a white truck when he left. During the third interview, Halliburton
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 2 of 21 initially began by reiterating his prior story but then offered a different account of what he had seen that day. During this interview, Halliburton claimed that he saw another resident in the hallway exiting Kiska’s apartment as he was leaving for the veterinarian. He further declared that he heard noises coming from Kiska’s apartment at which point he “propped the door just a little bit,” Tr. at 420, and “saw [the resident] in there cutting her up.” Tr. at 421. Halliburton described the layout of Kiska’s apartment and was “[v]ery detailed” about where the furniture was located and where the attack occurred. Tr. at 426. He identified the exact locations of where she had been stabbed and said that Kiska’s face looked like “a piece of meat.” Tr. at 429. Halliburton also said that Kiska had been attacked because “she came in at the wrong time.” Tr. at 431. After the interview, the investigating officer tried to confirm Halliburton’s claim with respect to where he said he had been standing when he peered through Kiska’s door and purportedly witnessed the attack. However, the officer determined that it would have been physically impossible for Halliburton to have seen the attack from a crack in the door; instead he had to have been at least “two to three feet” inside the apartment. Tr. at 433. Around this same time officers recovered from Halliburton’s car a DVD player that had been taken from Kiska’s apartment about a month earlier.
The investigation continued, and in August 2010, Halliburton sent a letter to the police saying, “I want to clear [the resident’s] name. I didn’t really see him doing it.” Tr. at 433-34.
Halliburton v. State, 1 N.E.3d 670, 673-674 (Ind. 2013).
[3] The State charged Halliburton with murder. Id. at 674. Alleging he committed
the murder by intentionally killing the victim while committing or attempting to
commit burglary, pursuant to Ind. Code § 35-50-2-9(b)(1)(B), the State filed an
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 3 of 21 amended information in January 2012 seeking life imprisonment without
parole. Id. The State also charged Halliburton as an habitual offender. Id.
Trial began April 16, 2012. During the guilt phase, testimony largely from State’s witness Nicole DeFronzo revealed that in early 2008 she and her then-boyfriend Halliburton lived together in an apartment next door to Kiska. On March 18, 2008, Halliburton took his cat to a veterinary appointment where he had arranged to meet DeFronzo. Halliburton told DeFronzo that he had entered Kiska’s apartment when she was not there. However, Kiska came home unexpectedly, and a struggle ensued resulting in her brutal death. More precisely, according to DeFronzo, Halliburton told her that when Kiska came home, “he didn’t want to get caught so he killed her.” Tr. at 523. Halliburton left Kiska’s apartment and changed his bloody clothes. DeFronzo helped dispose of the clothes and they drove to the home of DeFronzo’s mother, a registered nurse, who bandaged a wound on Halliburton’s hand. For over three years DeFronzo did not reveal to anyone what Halliburton had told her about Kiska’s death. Nor had she revealed her own complicity in helping get rid of evidence.
During trial the State introduced numerous exhibits including photographs of the crime scene, pre and post autopsy photographs, and a rib bone of the victim that had been removed during autopsy. The State also introduced evidence that Halliburton had committed a burglary of Kiska’s apartment approximately a month prior to the killing; and for which the trial court gave a limiting instruction. Further the State called DeFronzo’s mother as a witness who testified, among other things, that she had counseled her daughter to come forward with what she knew and “to tell the truth.” Tr. at 484.
Id. at 674-675.
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 4 of 21 [4] The jury found Halliburton guilty of murder. Id. at 675. At the mitigation
evidentiary stage, Halliburton’s trial counsel stated outside the presence of the
jury that his staff had done an extensive amount of work compiling various
records from various institutions and medical facilities and that “[h]aving gone
through all these and having had my staff go through all of these, I have made
the decision to sort of cut down and go basically to the heart issues [sic] that we
believe are here.” Trial Transcript at 710. He also stated that “many of the
things in these records are not, in my opinion, and would not be helpful to my
client in presentation of the mitigation issue.” Id. The court commented that
the stack of materials was about ten inches tall and clarified with defense
counsel that he did not elect to use them because they were not favorable to
Halliburton. Trial counsel stated: “I know that my reading of them suggests
that they would not be favorable at all.” Id. The court asked: “So are you
intending those to be part of the record, or are you just showing them to the
Court now?” Id. at 710-711. Trial counsel stated: “I’m going to show these to
the Court now, and then I could provide the Court with my own staff’s
records.” Id. at 711. The court asked the prosecutors if that was a problem, and
one of the prosecutors said no.
[5] In the presence of the jury, trial counsel then examined Sharon Bryson,
Halliburton’s mother. Bryson testified that Halliburton had no relationship
with his father for most of his life after his father turned his back on him when
Halliburton was about two or three years old and that Halliburton tried to
communicate with his father but his father rejected him. According to Bryson’s
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 5 of 21 testimony, Halliburton walked and talked at an early age and he fell out of a
second floor window and landed headfirst on concrete when he was about two
or three. She took him to the hospital, and the doctors told her that he had a
slight concussion and no broken bones and just to keep an eye on him. In
Halliburton’s young years, Bryson became concerned that he should be
reexamined regarding the head issue because his motor skills started changing
when he was about four years old. She took Halliburton to family doctors, to
the hospital, and different centers including Oaklawn and Koala. Bryson made
attempts to have Halliburton evaluated at various places. The school system
labeled him as having “attention deficit, impulse control, and a learning
disability.” Id. at 722.
[6] During cross-examination, Bryson testified that the injury occurred about the
time Halliburton’s father left and it was not until he was about four years old
that he started having some differences in his personality. After Bryson’s
testimony, the court asked defense counsel if he had other evidence, and
defense counsel stated that he had one document. The court indicated that the
document would be marked as Defendant’s Exhibit A, the prosecutor stated
that she had no objection to Exhibit A being admitted, defense counsel asked
that the copies be displayed to the jury, and the court indicated that copies of
Exhibit A would be sent into the jury room. Defendant’s Exhibit A consists of
a 1995 record from Oaklawn Hospital when Halliburton was fourteen years old
which states in part that it provided an update since Halliburton’s last
hospitalization in 1990 when he was diagnosed with attention deficit disorder
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 6 of 21 with hyperactivity, oppositional defiant disorder, and a psychotic disorder, that
Halliburton denied any symptoms of psychosis, that a doctor “was requesting a
thorough neurological workup,” that Halliburton’s mother “concurred with this
belief and she based this all on the fact that her son had a significant fall at the
age of three,” and that “[a]lthough the patient may have chronic problems it is
perceived that the acute crisis may center around the patient having an
untreated attention deficit disorder.” Defendant’s Exhibit A.
[7] The jury recommended life imprisonment without parole. Halliburton, 1 N.E.3d
at 675. Halliburton admitted to being an habitual offender. Id. Following a
sentencing hearing, the trial court sentenced Halliburton consistent with the
jury’s recommendation. Id. On direct appeal, Halliburton argued that the trial
court erred in admitting certain evidence and providing a limiting instruction.
Id. The Indiana Supreme Court affirmed. Id. at 684.
[8] Halliburton filed a petition for post-conviction relief on March 3, 2014, and
later amended the petition on June 22, 2015. Halliburton asserted in part that
his trial counsel was ineffective for failing to adequately investigate, prepare for,
and present evidence which would mitigate against a sentence of life without
parole.
[9] On August 20, 2015, the court held an evidentiary hearing. The court admitted
the trial record. Halliburton’s lead trial counsel, Clifford Williams, testified that
he began practicing law in about 1979, that he began handling criminal cases in
1980, that he completed a twelve-hour training seminar for either life without
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 7 of 21 parole cases or death penalty cases prior to Halliburton’s case, and that he was
the Chief Public Defender for Elkhart County. Attorney Williams testified that
he had experience with the concept of developing mitigation and had Minette
Zeitler, a mitigation expert, working for him, and he described her as “well
versed” and “well qualified.” Post-Conviction Transcript at 8. According to
Attorney Williams, Zeitler did a “very, very good job of finding school records,
health records,” and matters that would pertain to Halliburton’s past. Id. He
testified that he spent time with Halliburton’s mother and learned as much as
he could about his childhood and thought process.
[10] When asked why he did not hire a mental health expert, Attorney Williams
stated:
From the standpoint of working the underlying case, at no time did I ever view, or see, Mr. Halliburton as a person who was, number one, certainly he was competent, and, number two, he seemed to be pretty much in charge of – of where he wanted things to go. He was always amenable. Amenable, I mean, he was always good to work with. He seemed to be in complete control of his faculties and the one thing that did arise, during the course of our looking into his past, and whatnot, was that his mom had indicated that he had a fall from a second story window at some point during his childhood.
So, other than that, he was a very engaged participant from the standpoint of a client input and I – I didn’t really see the need for a mental health professional.
Id. at 9-10.
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 8 of 21 [11] During cross-examination, when asked if he took great pains in order to find
any mitigation evidence that he found credible to present to the court for
purposes of consideration during sentencing, Attorney Williams answered:
Credible is the key word. Ideal, hopefully, as much as I can in reality, and some things don’t seem to me to be sensible and particular when attempting to put forth an argument to accord with great experience and even further than that, in a trial it’s not good practice, in my opinion, to attempt to hoodwink a jury. So, I try to stay transparent.
Id. at 15. Attorney Williams testified that he felt very comfortable with the
amount of time that his investigator, Bill Clark, spent with him and
Halliburton, that he spent time with Halliburton’s mother, and that Halliburton
was always amenable, helpful, demonstrative, engaged, and able to express his
view of whatever discovery he would be presenting. Attorney Williams also
testified that he at no time felt that Halliburton “either didn’t get it, or wasn’t
following, or didn’t understand it.” Id. at 20.
[12] Attorney Williams testified that his mitigation expert obtained records from
Oaklawn. He testified that he called Halliburton’s mother to testify at the
mitigation evidentiary stage because he thought “a mother might strike a chord
of sympathy,” she knew him better than anyone, she was articulate, she
presented well, and he was comfortable in giving her the opportunity to try to
show the jury that Halliburton was deserving of something less than life without
parole. Id. at 27. Attorney Williams testified that he thought Halliburton’s
mother testified regarding the injury Halliburton suffered as a child and that a
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 9 of 21 “somewhat subtle goal” would have been to illustrate that perhaps he had some
kind of injury to his brain that might cause issues with his behavior. Id. at 28.
Attorney Williams testified that evidence that Halliburton had some type of an
injury that caused him disconnect or a challenge with his mental processes such
that he might have trouble with impulse control or rage would be a double-
edged sword and that if you inject fear a jury would err on the side of caution
and lock someone up as long as they can. Attorney Williams testified:
If there had been something other than a reported fall, which I, probably because of lack of economic ability, maybe wasn’t followed up on and there did not seem to be a substantial enough basis had his conduct and demeanor and his ability to work with me and my investigator, and I – with whomever he came in contact, it didn’t raise that type of flag. Now, if we now know he has some problem, had an injury that, in fact, is capable of being proven, then I should have done it.
Id. at 34-35. When asked if he had found that Halliburton had issues with
impulse control, rage, anger, or ability to conform and whether that would be
something he would want in front of a jury, Attorney Williams testified that “if
you put what I consider nonsense in front of people, or if you put things that in
gender [sic] fear, it’s – it’s a double edged sword.” Id. at 35. He testified that
adding more fear to the jury would not have been a good tactical move.
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 10 of 21 [13] Dr. Corby Bubp,1 a psychologist and a neuropsychologist, testified that he
evaluated Halliburton on June 13th and 14th and reviewed records from
Halliburton’s psychiatric stays in 1990 and 1995. Dr. Bubp concluded that
Halliburton had some subtle brain damage or subtle cognitive information
processing issues that impact how he sees the world and makes judgments and
influences his actions, that he has an encephalopathy, which is a generic word
for brain damage, that his IQ “in several of his skills, cognizant skills are intact,
or in average range; but he has some very strong weaknesses in planning,
organization.” Id. at 40. He testified that there is a lesion or an impairment, or
part of his brain that is just not working.
[14] Dr. Bubp testified that psychiatric records revealed that a physician or facility
had found a condition called dysdiadochokinesia, which is basically the
inability to replicate or repeat motor movements over and over, and that it
would be standard practice to call for a neuropsychological evaluation on the
basis of the records. He testified that he saw very brief reports of a fall that
Halliburton had when he was two years old, and that “from what was described
as a 12 foot fall – that wouldn’t have been the traditional soccer field accident.
That would have been much more of a force issue.” Id. at 47. He also testified
that “I don’t know that it was a simple concussion. It could have been a mild –
what I call a mild to moderate TPI, which would have been more severe and
had more lasting repercussions.” Id. He stated that he found Halliburton’s
1 The transcript spells Dr. Bubp’s name as Buck, but his curriculum vitae lists it as Dr. Bubp.
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 11 of 21 reading and math abilities to be about the beginning of fourth grade level and
that his memory was generally low average to average.
[15] During cross-examination, Dr. Bubp testified that most people with a front lobe
injury “do not really have a rage issue” and that they actually become more
docile, but that a combination of orbital frontal injury in the context of some
paranoia ideas or distrust of others and a history of violence or abuse “then you
do tend to migrate more towards violent acts and trouble with the law and
things of that nature.” Id. at 51. Dr. Bubp stated that Halliburton had some
impulse control issues, and when asked whether Halliburton displayed some
rage control issues, Dr. Bubp testified: “Mild. He was in context.” Id. at 52.
He also stated that Halliburton would have a quick emotional reactivity, which
he would see the physiological signs of the stress, and that he would always be
able to compose himself in testing, usually within about fifteen to thirty
seconds, which is longer than most people he tests. He testified that
Halliburton met the criteria for borderline to mild personality disorder for
narcissism and was fully inclusive in the antisocial personality disorder. In
terms of “crim[in]alistic behavior,” Dr. Bubp testified that Halliburton is much
more likely to make judgments for himself and much more self-centered than
most without the ability to fully see how consequences fall on others. Id. at 55.
He also stated that Halliburton is more prone to criminal behavior given the
challenges with his frontal lobe processes.
[16] Halliburton’s trial co-counsel, Matthew Johnson, testified that he had received
twenty-four hours of training in a death penalty seminar by the time of the trial,
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 12 of 21 his role was to help the mitigation expert, they requested and received
voluminous records from Halliburton’s past, he spent hours at the jail
interviewing Halliburton, and that they also met with his family. He testified
that he did not hire a mental health expert, and that he did not remember a
reason.
[17] On March 7, 2016, the court denied Halliburton’s petition. The order states in
part:
16. [Halliburton] was represented at trial by Clifford Williams, the Chief Public Defender for Elkhart County, and Deputy Public Defender Matthew Johnson, during both the guilt phase and the enhancement phase. Mr. Williams testified that he has been engaged in the practice of criminal defense law since 1980, and has defended hundreds of criminal defendants at trial, including fifteen (15) to twenty (20) defendants charged with Murder. Mr. Williams testified that he has also participated in other capital cases and has received formal training and experience in defense of Death Penalty and Life Without Parole enhanced cases. Mr. Williams also testified that he retained a Mitigation Expert, Manette Zeitler, a person Mr. Williams believed was “well-versed” and “well-qualified” in capital case mitigation proceedings, for the purpose of researching viable defenses and evidence for the enhancement phase of [Halliburton’s] trial.
17. Additionally, Mr. Williams said he engaged in several hours of interaction and consultation with [Halliburton] and did not view [him] as a person “not competent.” To the contrary, Mr. Williams stated that he believed [Halliburton] “to be in charge of where he wanted things to go” and “in complete control of his faculties.” Further, Mr. Williams advised that [Halliburton] was
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 13 of 21 “very engaged” during their conversations, was very helpful with discovery, and was an active participant in his defense.
18. Further testimony by Mr. Williams revealed that he was aware that [Halliburton] had suffered a closed head injury during a fall as a young child. However, based upon his interactions with [Halliburton], along with reviewing documents and information in preparation for the mitigation evidence during the enhancement phase of the trial, Mr. Williams said he decided not to consult with or retain a mental health expert as he believed the best mitigation evidence would be in the form of sympathetic testimony from [Halliburton’s] mother regarding [his] injury, childhood, decision making challenges, and emotional challenges. Mr. Williams also said that the evidence was overwhelming, and the crime scene was very disconcerting. Mr. Williams went on to say that he believes counsel should be careful what to give a jury because any evidence that might inject fear might cause jurors to err on the side of caution. Mr. Williams said his opinion was that he made a good tactical choice not to raise any unnecessary red flags.
*****
20. Matthew Johnson testified that his primary role in Petitioner’s case was to work with Manette Zeitler, the mitigation expert, who obtained documents and information in the form of school records, records from the Department of Correction regarding [Halliburton’s] behavior and mental health, as well as other health records, and who spent a great deal of time interviewing [Halliburton’s] mother regarding [his] thought process capabilities and childhood. Mr. Johnson said he recalled receiving and reviewing these records and interviewing [Halliburton] and [his] family.
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 14 of 21 21. Based on the foregoing, there is extensive evidence establishing that trial counsel explored [Halliburton’s] prior education, health, and life experiences relative to his decision making processes and abilities to function in society. Counsel was fully aware of [Halliburton’s] prior head injury and propensity for rash decisions; therefore, prompting counsel to review [Halliburton’s] mental health records, mental and medical health history, educational history, and behavioral history. After considering all these, counsel made a strategic decision to present these through testimony of his mitigation expert Manette Zeitler and [Halliburton’s] mother.
22. [Halliburton] also presented the testimony of a neuropsychologist Dr. Corby Bubp. Dr. Bubp testified that he believed [Halliburton] possessed average IQ and cognitive skills; however, he believed [Halliburton] suffers from a frontal lobe brain impairment which results in [Halliburton] having “quick emotional reactivity,” psychopathic behavior, and challenges with rage impulse control. Accordingly, [Halliburton] poses a danger to himself and others. Dr. Bubp also said that it was his opinion that [Halliburton] is more prone to criminal behavior than others. This evidence, in itself, suggests that [Halliburton] is a significant danger not only to himself, but also to any community to which he may be released in the future. Accordingly, the jury is not likely to have reached a different outcome had expert testimony such as Dr. Bubp’s been presented at trial.
Appellant’s Appendix at 61-63.
Discussion
[18] The issue is whether Halliburton was denied the effective assistance of trial
counsel. Before discussing Halliburton’s allegations of error, we note the
general standard under which we review a post-conviction court’s denial of a
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 15 of 21 petition for post-conviction relief. The petitioner in a post-conviction
proceeding bears the burden of establishing grounds for relief by a
preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);
Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse
the judgment unless the evidence as a whole unerringly and unmistakably leads
to a conclusion opposite that reached by the post-conviction court. Id. Further,
the post-conviction court in this case entered findings of fact and conclusions
thereon in accordance with Indiana Post-Conviction Rule 1(6). “A post-
conviction court’s findings and judgment will be reversed only upon a showing
of clear error – that which leaves us with a definite and firm conviction that a
mistake has been made.” Id. In this review, we accept findings of fact unless
clearly erroneous, but we accord no deference to conclusions of law. Id. The
post-conviction court is the sole judge of the weight of the evidence and the
credibility of witnesses. Id.
[19] Halliburton argues that his trial counsel gathered the proper documents but
failed to appreciate what the data revealed and points to testimony of his trial
counsel that “if Halliburton ‘has some problem, had an injury that, in fact, is
capable of being proven, then I should have’ consulted with an expert.”
Appellant’s Brief at 7 (quoting Post-Conviction Transcript at 35). Halliburton
further contends that a part of his brain does not work properly and that it was
caused by physical structural damage to his brain. Halliburton argues that his
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 16 of 21 trial counsel failed to prepare adequately to present evidence from which to
argue that he committed criminal acts that are attributable to a disadvantaged
background or to emotional or mental problems and that therefore he is less
culpable than defendants who have no such excuse. He cites Wiggins v. Smith
539 U.S. 510, 123 S. Ct. 2527 (2003), and argues that his trial counsel shelved
their investigation and preparation at an unreasonable point in the case. He
also argues that the jury should have known that he has a brain injury that
affects his behavior.
[20] The State argues that trial counsel conducted a reasonable investigation to
develop mitigation evidence, and that trial counsel made a reasonable strategic
decision not to obtain an expert such as Dr. Bubp, and instead present the
testimony of Halliburton’s mother. The State also asserts that Halliburton has
failed to show that he was prejudiced by the decision not to present testimony
from someone such as Dr. Bubp.
[21] Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner
must demonstrate both that his counsel’s performance was deficient and that
the petitioner was prejudiced by the deficient performance. French v. State, 778
N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls
below an objective standard of reasonableness based on prevailing professional
norms. Id. The principal concern in deciding whether trial counsel exercised
reasonable and professional judgment is not whether counsel should have
presented certain evidence, rather we focus on whether the investigation
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 17 of 21 supporting counsel’s decision not to introduce certain evidence was itself
reasonable. See Wiggins v. Smith, 539 U.S. 510, 522-523, 123 S. Ct. 2527, 2536
(2003). In assessing the reasonableness of an attorney’s investigation, a court
must consider not only the quantum of evidence already known to counsel, but
also whether the known evidence would lead a reasonable attorney to
investigate further. Id. at 527, 123 S. Ct. at 2538.
[22] To meet the appropriate test for prejudice, the petitioner must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. French, 778 N.E.2d at 824. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy
either prong will cause the claim to fail. French, 778 N.E.2d at 824. Most
ineffective assistance of counsel claims can be resolved by a prejudice inquiry
alone. Id.
[23] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Clark v. State, 668
N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 18 of 21 Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second
guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly
speculate as to what may or may not have been an advantageous trial strategy
as counsel should be given deference in choosing a trial strategy which, at the
time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d
40, 42 (Ind. 1998).
[24] In considering the reasonableness of trial counsel’s investigation and the
quantum of evidence known to counsel, we observe that Attorney Williams
testified that Zeitler, the mitigation expert, did a “very, very good job of finding
school records, health records,” and matters that would pertain to Halliburton’s
past including records from Oaklawn. Post-Conviction Transcript at 8.
Attorney Johnson testified that they requested and received voluminous records
from Halliburton’s past, that he spent hours at the jail interviewing Halliburton,
and that they also met with his family. At trial, Attorney Williams referred to
the records, and the court commented that the stack of materials was about ten
inches tall. As to whether the known evidence would lead a reasonable
attorney to investigate further, Attorney Williams indicated that he did not see
the need for a mental health professional and that Halliburton was competent,
amenable, always good to work with, a very engaged participant, and someone
who seemed to be in complete control of his faculties. Under the
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 19 of 21 circumstances, we cannot say that the performance of Halliburton’s trial
counsel was deficient.2
[25] In addition, we cannot say that Halliburton demonstrated that the result of the
proceeding would have been different had his trial counsel hired a mental
health expert. Dr. Bubp indicated that Halliburton displayed a mild rage
control issue, that he is much more likely to make judgments for himself and
much more self-centered than most without the ability to fully see how
consequences fall on others, and that he is more prone to criminal behavior
given the challenges with his frontal lobe processes. Attorney Williams testified
that evidence that Halliburton had some type of an injury that caused him
disconnect or a challenge with his mental processes such that he might have
trouble with impulse control, or rage would be a double-edged sword and that if
one injects fear then a jury would err on the side of caution and lock someone
up as long as they can. We cannot say that Dr. Bubp’s testimony undermines
confidence in the outcome or that Halliburton has demonstrated that he was
prejudiced.3
2 Halliburton cites Prowell v. State, 741 N.E.2d 704 (Ind. 2001), and asserts that in that case the sentencer had an incorrect view of the defendant’s mental health because of counsel’s failure to identify their client’s illness and provide an expert with sufficient information. In Prowell, unlike the present case, trial counsel testified at the post-conviction hearing that from the outset of their representation, they believed Prowell to be “mentally unsound” or “mentally ill.” 741 N.E.2d at 713. We find Prowell distinguishable. 3 To the extent Halliburton cites Wiggins, we observe that the mitigating evidence counsel failed to discover and present in Wiggins was “powerful” and included severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. 539 U.S. at 534-535, 123 S. Ct. at 2542. The defendant suffered physical torment, sexual molestation, and repeated rape during his subsequent years in
Court of Appeals of Indiana | Memorandum Decision 20A03-1604-PC-685 | October 17, 2016 Page 20 of 21 Conclusion
[26] For the foregoing reasons, we affirm the post-conviction court’s denial of
Halliburton’s petition for post-conviction relief.
[27] Affirmed.
Robb, J., and Mathias, J., concur.
foster care. Id. at 535, 123 S. Ct. at 2542. We find the evidence presented by Dr. Bubp’s testimony distinguishable.
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