Derrick Weedman v. State of Indiana ( 2014 )

Nov 26 2014, 9:03 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMBERLY JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DERRICK WEEDMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 90A04-1311-CR-549
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable Kenton W. Kiracofe, Judge
Cause No. 90C01-1207-FB-8
November 26, 2014
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Derrick Weedman appeals his conviction for Class B felony aggravated battery. We
affirm.
Issues
Weedman raises numerous issues, which we restate as:
I. whether the trial court properly admitted evidence that
Weedman had pursued and later withdrew an insanity
defense;
II. whether the deputy prosecutor committed misconduct;
III. whether the trial court properly allowed an emergency
medical technician (“EMT”) and a detective to testify
about statements made by Weedman’s mother;
IV. whether the trial court properly excluded photographs of
Weedman showing his 2008 traumatic brain injury;
V. whether the State presented sufficient evidence to rebut
Weedman’s claim of self-defense;
VI. whether the trial court abused its discretion when it
sentenced Weedman; and
VII. whether the sentence imposed by the trial court is
inappropriate.
Facts
Weedman suffered a traumatic brain injury in 2008 when he tried to kill himself by
driving his vehicle into his girlfriend’s parked car. After the injury, he lived with his mother
and stepfather, Ted Schlichter. Weedman was diagnosed with depression, schizophrenia, and
bipolar disorder after the brain injury.
2
On July 20, 2012, Weedman’s mother entered the house and found Schlichter on the
floor in the living room bleeding from his face and unconscious. Weedman was in the
kitchen. His drinking glass was broken, and the refrigerator was dented and had blood on it.
Weedman asked his mother to call 911, saying he had tried to but could not.
Paramedics and police arrived, and Schlichter was taken to a hospital with severe
fractures to the bones in his face and swelling in his brain. Weedman was treated at an
emergency room for minor injuries to his hand and feet. He told the medical staff his injuries
occurred because he punched Schlichter in the face. When the police took Weedman to jail,
Weedman spontaneously told an officer, “It was him or me,” “I have a plate in my head and
if I’m hit there I would be a vegetable,” and “I can beat this.” Tr. p. 237. As a result of his
injuries, Schlichter underwent a long rehabilitation and continues to suffer permanent
impairments, including some vision loss, right vocal cord paralysis, and memory loss.
The State charged Weedman with Class B felony aggravated battery. In August 2012,
Weedman filed a notice of insanity defense, and the trial court appointed two doctors to
examine him to determine his competency to stand trial and his sanity at the time of the
offense. Both doctors, Dr. Jere Lieb and Dr. Stephen Ross, reported that Weedman was
capable of understanding the wrongfulness of his conduct and assisting in his defense. In
May 2013, Weedman withdrew the insanity defense and his claim of incompetency.
At the August 2013 trial, Weedman argued that he injured Schlichter in self-defense,
but the jury found Weedman guilty of aggravated battery. At the sentencing hearing, the trial
court found Weedman’s criminal history and the significant harm suffered by Schlichter to be
3
aggravating factors. The trial court found no mitigating factors. The trial court sentenced
Weedman to twenty years in the Department of Correction. Weedman now appeals.
Analysis
I. Admission of Withdrawn Insanity Defense
Weedman argues the admission of evidence that he had asserted an insanity defense
and then withdrew it violated his Fifth Amendment protection against self-incrimination and
was used for other improper purposes. The deputy prosecutor mentioned during opening
statements that Weedman had filed and withdrawn a notice of insanity defense. Specifically,
the deputy prosecutor said:
The Defendant was arrested and he comes into this Court
and he files a Notice of Insanity, files it with the Court and it’s
in the Court’s records which means I did it, but I was insane
when I did it, I wasn’t in my right mind. Well we have two
psychiatrists review him and meet with him and they say no, you
are not insane, you weren’t insane then. Then he files a Notice
of Self-Defense which is I did it, but I was defending myself
when I did it, we’re going to scrap that one about I was insane
when I did it, now we’re going to go with I was defending
myself in self-defense.
Dr. Jere Lieb and Dr. Ross are the two psychiatrists who
evaluated him will tell you 1) that he’s not insane, they will tell
you that the Defendant told them that he thought the victim
came at him so he hit him once, hit him once. Those doctors
will also tell you that the Defendant has anger control problems.
Tr. p. 113. Weedman did not object. During Weedman’s opening statement, his counsel
said, “Now [the deputy prosecutor] makes a . . . big deal about filing an insanity defense and
the withdrawing of that defense, that was not my client, that was not Mr. Weedman’s—”. Id.
at 118. The State objected, and the trial court sustained that objection.
4
The State called Dr. Lieb to testify. Dr. Lieb testified that he met with Weedman to
determine his competency and sanity and that he determined Weedman was both competent
to assist his attorney and sane at the time of the offense. Dr. Lieb extensively discussed
Weedman’s explanation of the incident. The State also called Dr. Ross to testify. Dr. Ross
also testified that he met with Weedman, that he determined Weedman was sane at the time
of the offense, and that he was able to assist with his defense. Dr. Ross testified that
Weedman had previously been diagnosed as being easily angered, being impulsive, and
exercising poor judgment. He also discussed Weedman’s medications, substance abuse
issues, and earlier suicide attempt. During closing arguments, the deputy prosecutor argued:
“Defendant claimed insanity then took that back. Then he claimed self-defense . . . .” Id. at
348.
Weedman did not object to the evidence of his insanity defense and its withdrawal,
and the failure to make a contemporaneous objection to the admission of evidence at trial
generally results in waiver of the error on appeal. See Brown v. State, 929 N.E.2d 204, 207
(Ind. 2010). However, a claim that has been waived by a defendant’s failure to raise a
contemporaneous objection can be reviewed on appeal if the reviewing court determines
there was fundamental error. Id. The fundamental error exception is extremely narrow, and
applies only when the error constitutes a blatant violation of basic principles, the harm or
potential for harm is substantial, and the resulting error denies the defendant fundamental due
process. Id. The error claimed must either make a fair trial impossible or amount to clearly
blatant violations of basic and elementary principles of due process. Id. Weedman claims
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that the admission of evidence related to his withdrawn insanity defense resulted in
fundamental error.
Our supreme court recently noted that a finding of fundamental error essentially
means the trial judge erred by not acting when he or she should have, even without being
spurred to action by a timely objection. Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014).
An error blatant enough to require a judge to take action sua sponte is necessarily blatant
enough to draw any competent attorney’s objection. Id. But the reverse is also true: if the
judge could recognize a viable reason why an effective attorney might not object, the error is
not blatant enough to be fundamental. Id.The Fifth Amendment to the United States Constitution states that “no person . . . shall
be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.
The privilege against self-incrimination not only permits a person to refuse to testify against
himself at a criminal trial in which he is a defendant, but also privileges him not to answer
official questions put to him in any other proceeding where the answers might incriminate
him in future criminal proceedings. State v. Cass, 635 N.E.2d 225, 226 (Ind. Ct. App. 1994),
trans. denied.
Weedman relies on Estelle v. Smith, 451 U.S. 454, 468, 101 S. Ct. 1866, 1876 (1981),
where the Supreme Court said “[a] criminal defendant, who neither initiates a psychiatric
evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to
respond to a psychiatrist if his statements can be used against him at a capital sentencing
proceeding.” In Estelle, the trial court had sua sponte ordered a psychiatric examination of
6
the defendant “for the limited, neutral purpose of determining his competency to stand trial . .
. .” Estelle, 451 U.S. at 465, 101 S. Ct. at 1874. The defendant in Estelle did not request a
psychiatric examination, did not raise an insanity defense, and was not informed of his right
to remain silent and the possible use of his statements made during the psychiatric
examination. At the sentencing hearing, the State “offered information obtained from the
court-ordered competency examination as affirmative evidence to persuade the jury to return
a sentence of death.” Id. at 466, 101 S. Ct. at 1874. “To meet its burden, the State used
respondent’s own statements, unwittingly made without an awareness that he was assisting
the State’s efforts to obtain the death penalty.” Id., 101 S. Ct. at 1875. The Supreme Court
held that the admission at the sentencing hearing of the defendant’s statements to the
psychiatrist violated the defendant’s Fifth Amendment rights.
Estelle applies, Weedman says, because the State used the results of his court-ordered
examination “for a much broader objective that [sic] the original purpose of the examination.
The two doctors examined Weedman to determine his competency and sanity. However, the
State used the results of these examinations to prove Weedman’s guilt and character.”
Appellant’s Br. p. 21. To prove Weedman used unreasonable force, Weedman argues, the
State used one doctor’s testimony that Weedman was impulsive and had a temper. The State
tried to show his insanity defense was part of his effort to fabricate a defense, and it used the
testimony to show Weedman had a history of drug abuse, which Weedman says was
irrelevant. Weedman asserts, without explanation, that his statements to the doctors were not
given freely and voluntarily, so the State should not have used them for those purposes.
7
The State distinguishes Estelle on the basis that the defendant there did not request a
sanity evaluation, and such a defendant may not be compelled to respond to a psychiatrist if
his statements could later be used against him. Estelle, 451 U.S. at 468, 101 S. Ct. at 1876.
The State notes Weedman “was not ‘in custody’ and was not ‘compelled’ to travel to Dr.
Lieb’s and Dr. Ross’s offices for mental health evaluations (App.9; Tr. 241, 254).”
Appellee’s Br. p. at 27. Based on its characterization that the evaluations were something
Weedman voluntarily sought, the State argues “nothing in Estelle holds that a defendant can
launch an inquiry into probative evidence of his state of mind and actions during an alleged
offense and then, when the inquiry does not turn out as he likes, hide what he has learned by
‘withdrawing’ his request.” Id.We acknowledge the differences between this case and Estelle, which limit the
relevancy of Estelle here. See Taylor v. State, 659 N.E.2d 535, 540 (Ind. 1995) (noting that
Estelle was limited to cases in which the defendant “neither initiates a psychiatric evaluation
nor attempts to introduce any psychiatric evidence”). However, we find that other Indiana
cases give guidance in this issue of first impression. We begin by noting that Weedman
asserted self-defense at his trial, not an insanity defense. A valid claim of defense of oneself
or another person is legal justification for an otherwise criminal act. Ind. Code § 35-41-3-
2(a); Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). Under Indiana Code Section 35-41-3-
2, a person is justified in using reasonable force to protect himself from what he reasonably
believes to be the imminent use of unlawful force by another person. Gillespie v. State, 832
N.E.2d 1112, 1117 (Ind. Ct. App. 2005). However, a person is not justified in using force if
8
1) he provokes unlawful action by another person with intent to cause bodily injury to the
other person, or 2) has entered into combat with another person or is the initial aggressor,
unless he withdraws from the encounter and communicates to the other person the intent to
do so and the other person nevertheless continues or threatens to continue unlawful action.
Id. A claim of self-defense will also fail if the person “uses more force than is reasonably
necessary under the circumstances.” Sudberry v. State, 982 N.E.2d 475, 481 (Ind. Ct. App.
2013).
The only statutory element of self-defense to which Weedman’s “state of mind” might
be relevant is his “reasonable belief” that he was being subjected to the imminent use of
unlawful force and his “reasonable belief” that his own use of force was necessary to prevent
serious injury to himself. See Gillespie, 832 N.E.2d at 1117. The other elements of self-
defense are plainly objective matters that cannot be determined by reference to the “state of
mind” of the defendant asserting self-defense. Id. at 1117-18. Thus, it is unclear to us how
Weedman’s withdrawn insanity defense or the other matters testified to by the doctors were
at all relevant to the issues in this case.
The State asserts that “[a] request for a psychiatric examination waives the
defendant’s privilege against self-incrimination.” Appellee’s Br. p. 27(citing Fleenor v.
State, 622 N.E.2d 140, 148 (Ind. 1993), cert. denied, abrogated on other grounds by Dill v.
State, 741 N.E.2d 1230 (Ind. 2001)). The State appears to be referring to this language from
Fleenor: “The privilege against self-incrimination bars the State from subjecting the
defendant to a psychiatric examination without a warning of rights. However, the bar is
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waived once the defendant introduces psychiatric evidence in support of an insanity defense.”
Fleenor, 622 N.E.2d at 148. Weedman withdrew his insanity defense prior to trial. It
therefore is not apparent that he could have introduced psychiatric evidence “in support of”
such a defense, which was the step required for him to waive his privilege against self-
incrimination.
In fact, “Indiana has long held that a defendant may not submit evidence relating to
mental disease or defect except through an insanity defense.” Marley v. State, 747 N.E.2d
1123, 1128 (Ind. 2001). Our supreme court held in Cardine v. State, 475 N.E.2d 696 (Ind.
1985), that, where a defendant withdrew his insanity defense and asserted self-defense
instead, the trial court properly excluded evidence of his earlier suicide attempt. The court
held: “When a defendant raises the defense of insanity, the general rule is that there is great
latitude in admitting evidence of other conduct of the defendant, limited to the extent that
such conduct must be relevant to the issue of insanity.” Cardine, 475 N.E.2d at 699. Where
the defendant withdraws his defense of insanity before trial, “the latitude in admitting other
prior conduct [becomes] substantially limited.” Id. Evidence of the suicide attempt was “too
remote and had little if any relationship to his defense.” Id.
Our supreme court addressed a similar argument in Simpson v. State, 269 Ind. 495,
381 N.E.2d 1229 (1978). There, the defendant argued that the trial court should have
admitted a psychologist’s testimony regarding his lack of intent to commit robbery. The
court noted that insanity was not an issue at the trial. The court held: “The question of a
person’s intent at the time of the commission of a crime, not related to an issue of insanity, is
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a question of fact for the jury and not a proper subject of expertise.” Simpson, 269 Ind. at
502, 381 N.E.2d at 1233. The psychologist’s testimony was properly excluded because his
testimony “would have been nothing more than hearsay and was not necessary as an aid for
the jury’s determination of the issue of the presence or absence of criminal intent.” Id.Further, in Phelan v. State, 273 Ind. 542, 406 N.E.2d 237 (1980), the admissibility of
incriminating remarks made to a physician during a compulsory psychiatric examination were
discussed. The court held that, if such remarks were offered to demonstrate the mental
condition of the defendant, then they should be admitted. Phelan, 273 Ind. at 545, 406
N.E.2d at 239. If they were offered to demonstrate the guilt of the defendant, then they
should not be admitted over proper objection. Id. Similarly, in Taylor, 659 N.E.2d at 541,
our supreme court held that the State may not misuse its access to the defendant by
attempting to prove the defendant’s guilt through the testimony of its physician. “If the court
finds that the State is abusing the opportunity and using the defendant’s statements to
demonstrate guilt, it should not hesitate to exclude such statements.” Id. at 541. “There will
be cases, however, in which the defendant makes statements during the interview that are
both probative of his sanity at the time of the crime and incriminating.” Id. “In such cases, if
the prejudice to the defendant does not substantially outweigh its probative value, the
statements may be admitted. This determination we leave to the sound discretion of the trial
judge.” Id.
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Given those cases, we conclude that the admission of evidence concerning
Weedman’s withdrawn insanity defense was erroneous.1 The evidence was simply not
relevant to the issues in the case. Given his withdrawal of his insanity defense, Weedman
would not have been able to admit the evidence at issue; thus, the State’s basis for admitting
the evidence is unclear.2 The State offers no legitimate basis for admitting the evidence.3 We
1
We note that Rule 12.2 of the Federal Rules of Criminal Procedure addresses these issues in federal court
actions. Rule 12.2(c)(4) provides:
No statement made by a defendant in the course of any examination
conducted under this rule (whether conducted with or without the
defendant’s consent), no testimony by the expert based on the statement,
and no other fruits of the statement may be admitted into evidence against
the defendant in any criminal proceeding except on an issue regarding
mental condition on which the defendant:
(A) has introduced evidence of incompetency or evidence requiring notice
under Rule 12.2(a) or (b)(1), or
(B) has introduced expert evidence in a capital sentencing proceeding
requiring notice under Rule 12.2(b)(2).
Further, Rule 12.2(e) provides: “Evidence of an intention as to which notice was given under Rule 12.2(a)
or (b), later withdrawn, is not, in any civil or criminal proceeding, admissible against the person who gave
notice of the intention.”
2
We further note that, even if Weedman had continued pursuing his insanity defense, the admission of the
psychiatrists’ testimony in the manner done here would have been improper. Indiana Code Section 35-36-
2-2 provides that psychologists or psychiatrists appointed to examine a defendant shall testify after “the
presentation of the evidence for the prosecution and for the defense, including the testimony of any mental
health experts employed by the state or by the defense.” Here, the State called Dr. Lieb and Dr. Ross as
part of its presentation of evidence. See Phelan, 273 Ind. at 544, 406 N.E.2d at 238 (holding that “the trial
court erred in allowing the court-appointed physician to testify during the State’s case in chief over the
Defendant’s objection”).
3
Relying on Brewington, 7 N.E.3d 946, the State argues that Weedman’s failure to object to any of the
evidence at issue was a matter of defense strategy. Despite the language in Brewington, we believe such a
“strategy” argument is more properly addressed in the context of an ineffective assistance of trial counsel
issue in post-conviction proceedings. We simply have no information regarding Weedman’s trial
counsel’s thoughts on his strategy. Moreover, we need not address the State’s strategy argument because
we conclude that the admission of the evidence did not result in fundamental error.
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conclude that the State was improperly attempting to prove Weedman’s guilt through the
discussion of his withdrawn insanity defense and the doctors’ testimony.
Although we conclude that the admission of evidence regarding Weedman’s
withdrawn insanity defense was erroneous, we cannot say that the admission resulted in
fundamental error. The evidence supporting the jury’s guilty verdict was overwhelming.
Weedman admitted to hitting Schlichter, although he claimed self-defense. Doctors testified
at the trial that Schlichter’s face was essentially “flattened” and that such injuries are
typically seen in car accidents or falls from large heights. Tr. p. 300. Dr. Scott Wagner
testified that there were at least four separate blows to Schlichter’s face but probably more
than seven or eight blows. Weedman claimed that he hit Schlichter once, hit him with a glass
as Weedman fell on Schlichter, and kicked Schlichter a couple times. Dr. Wagner testified
that Weedman’s explanation would not account for Schlichter’s injuries. Rather, Dr. Wagner
testified that, rather than kicking, “it would be more of a stomping type injury . . . .” Id. at
305. According to Dr. Wagner, after the blow fracturing Schlichter’s sinus and causing the
brain bruise, he would have been immediately debilitated. Dr. Donald Reed testified that
there were more than enough strikes to render Schlichter unconscious. The evidence was
overwhelming that Weedman’s reaction to Schlichter’s alleged actions did not qualify as self-
defense because he used more force than was reasonably necessary under the circumstances.
See Halliburton v. State, 1 N.E.3d 670, 683 n.7 (Ind. 2013) (“Where evidence of guilt is
overwhelming any error in the admission of evidence is not fundamental.”). Consequently,
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we conclude that, although the admission of the evidence was erroneous, it did not amount to
fundamental error.
Weedman also argues that, after the State discussed and admitted evidence regarding
the withdrawn insanity defense, Weedman attempted to also discuss the issue and the trial
court sustained the State’s objection. Specifically, during Weedman’s cross-examination of
Dr. Lieb, the trial court sustained the State’s objection to Weedman asking whether
Weedman had any “shortcomings at all with his ability to assist in his defense.” Tr. p. 244.
According to Weedman, “[t]he trial court’s rulings essentially ensured the State freely could
use the worst of the evidence arising from Weedman’s withdrawn insanity defense and
Weedman could not respond.” Appellant’s Br. p. 23.
What might otherwise be inadmissible hearsay evidence may become admissible
where a party “opens the door” to questioning on that evidence. Turner v. State, 953 N.E.2d
1039, 1055 (Ind. 2011). The evidence relied upon to “open the door” must leave the trier of
fact with a false or misleading impression of the facts related. Ortiz v. State, 741 N.E.2d
1203, 1208 (Ind. 2001). Although we might agree that the State opened the door, Weedman
has not demonstrated that the State’s evidence created a false or misleading impression that
should have been corrected with Weedman’s evidence. Moreover, even if the trial court
erred by excluding Weedman’s evidence after having admitted the State’s evidence, we
conclude that the alleged error was harmless for the same reasons already discussed.
II. Prosecutorial Misconduct
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Next, Weedman argues that the deputy prosecutor committed misconduct when he
commented on Weedman’s post-arrest silence and referenced Weedman’s tattoo.4 In
reviewing a claim of prosecutorial misconduct properly raised in the trial court, we
determine: (1) whether misconduct occurred, and if so, (2) “whether the misconduct, under
all of the circumstances, placed the defendant in a position of grave peril to which he or she
would not have been subjected” otherwise. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014)
(quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). “Whether a prosecutor’s
argument constitutes misconduct is measured by reference to case law and the Rules of
Professional Conduct. The gravity of peril is measured by the probable persuasive effect of
the misconduct on the jury’s decision rather than the degree of impropriety of the conduct.”
Id. (quoting Cooper, 854 N.E.2d at 835). To preserve a claim of prosecutorial misconduct,
the defendant must—at the time the alleged misconduct occurs—request an admonishment to
the jury, and if further relief is desired, move for a mistrial. Id.
Our standard of review is different where a claim of prosecutorial misconduct has
been waived for failure to preserve the claim of error. Id. The defendant must establish not
only the grounds for prosecutorial misconduct but must also establish that the prosecutorial
misconduct constituted fundamental error. Id. at 667-68. “Fundamental error is an extremely
narrow exception to the waiver rule where the defendant faces the heavy burden of showing
that the alleged errors are so prejudicial to the defendant’s rights as to ‘make a fair trial
4
Weedman also argues that the deputy prosecutor committed misconduct by discussing Weedman’s
withdrawn insanity defense, but we have previously addressed the admissibility of that evidence and
determined that its admission did not result in fundamental error. Consequently, we will not address that
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impossible.’” Id. at 668 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). In
other words, to establish fundamental error, the defendant must show that, under the
circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors
(a) “constitute clearly blatant violations of basic and elementary principles of due process”
and (b) “present an undeniable and substantial potential for harm.” Id.A. Reference to Tattoo
During opening arguments, the prosecutor said the evidence would show Weedman
“has anger control problems, temper problems, in fact indicative of his philosophy he has the
words “‘total chaos’ tattooed on his arm, his hand, conveniently covered up by a band-aid
today.” Tr. p. 114. Weedman objected and requested a mistrial. The trial court sustained the
objection but denied the request for a mistrial.5
To preserve a claim of prosecutorial misconduct, a defendant must object and request
an admonition. Delarosa v. State, 938 N.E.2d 690, 696 (Ind. 2010). If the defendant is not
satisfied with the admonition, the defendant must move for a new trial. Id. Failure to comply
waives the prosecutorial misconduct claim. Id. Weedman does not argue on appeal that the
reference to his tattoo was fundamental error. Weedman acknowledges that “[t]he
prosecutorial misconduct related to the tattoo evidence, standing alone, likely did not place
Weedman in grave peril . . . .” Appellants’ Br. p. 34. We agree. We cannot say that the brief
evidence further.
5
The PSI indicates that Weedman’s tattoo says, “Anarchy.” App. p. 402.
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reference to the tattoo placed Weedman in grave peril or amounted to fundamental error,
though the remark was dangerously gratuitous.
B. Comments on Weedman’s Post-Arrest Silence
The police gave Weedman a Miranda warning when he was arrested. In Doyle v.
Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976), the United States Supreme Court held
that under the Fourteenth Amendment a prosecutor may not use the silence of a defendant
who has been arrested and given Miranda warnings to impeach the defendant. Sobolewski v.
State, 889 N.E.2d 849, 857 (Ind. Ct. App. 2008), trans. denied. Miranda warnings inform a
person of his right to remain silent and assure him, at least implicitly, that his silence will not
be used against him. Id. An alleged Doyle violation may be reviewed under the fundamental
error doctrine. Id. “Because a Doyle violation is so egregious and so inherently prejudicial,
reversal is the norm rather than the exception.” Teague v. State, 891 N.E.2d 1121, 1126 (Ind.
Ct. App. 2008).
An error of this type is harmless only when the court, after assessing the record to
determine the probable impact of the improper evidence on the jury, can conclude beyond a
reasonable doubt that the error did not influence the jury’s verdict. Id. In analyzing whether
a Doyle violation is harmless beyond a reasonable doubt, we examine five factors: (1) the use
to which the prosecution puts the post-arrest silence; (2) who elected to pursue the line of
questioning; (3) the quantum of other evidence indicative of guilt; (4) the intensity and
frequency of the reference; and (5) the availability to the trial court of an opportunity to grant
17
a motion for mistrial or give a curative instruction. Kubsch v. State, 784 N.E.2d 905, 914-15
(Ind. 2003).
Weedman asserts the deputy prosecutor “repeatedly inquired or made statements to the
effect that Weedman had never revealed to the State his version of events presented at trial.”
Appellant’s Br. pp. 30-31. It does not appear Weedman objected to any of the Doyle
violations he now alleges, so he must show any error was fundamental. He points
specifically to: 1) testimony by Detective Betz that she approached Weedman for an
interview but he said he wanted an attorney; 2) Detective Betz’s testimony that she believed
she could not legally continue speaking to Weedman after he said he wanted an attorney; 3)
the deputy prosecutor’s questions on cross-examination asking Weedman why, when police
responded to the home and found Schlichter injured on the floor, he did not “go over to the
officer and give him this story [that he was defending himself from Schlichter],” Tr. p. 340,
and the deputy prosecutor’s question “you do tell somebody I don’t want to talk to my mom
because she can’t keep her mouth shut. Why didn’t you tell this other part of your story?,”
id.; 4) testimony by Deputy Steven Wendling, who asked Weedman what happened and
Weedman replied “I’m taking the Fifth on that,” id. at 227; and 5) the deputy prosecutor’s
reference in closing argument to Weedman’s mother’s inability to keep her mouth shut and
his comment “you don’t have to worry about people keeping their mouth shut if you are
defending yourself and you are innocent. You want everybody to know that stuff . . . you
want to tell them that stuff . . . that’s something you want brought out, not something you
18
want to hide.” Id. at 344. The deputy prosecutor later asked “[w]hy don’t we hear that story
until today[?]” Id. at 347.
Weedman relies on Kubsch, 784 N.E.2d at 915, where there was a Doyle violation.
The State twice played a videotape where Kubsch invoked his right to remain silent:
The use to which the State, in its case in chief, put those portions of the
videotape showing Kubsch invoking his right to silence is rather
apparent: Kubsch was unwilling to talk with police even though his
wife and step-son had just been killed, giving the impression that
Kubsch had something to hide or else he would assist in locating their
killers. And although the amount of other evidence indicative of
Kubsch’s guilt as set forth in the “Facts” section of this opinion is
sufficient to sustain the convictions, that evidence is circumstantial and
was fiercely contested at trial.
Kubsch, 784 N.E.2d at 915.
The State first notes some of Weedman’s statements were made before he received
Miranda warnings, so references to them were not Doyle violations. See Peters v. State, 959
N.E.2d 347, 353 (Ind. Ct. App. 2011) (observing that a defendant’s post-arrest, post-Miranda
silence may not be used to impeach him, but a defendant’s post-arrest, pre-Miranda silence
may be used for impeachment purposes). Weedman asserts those statements that were pre-
Miranda also encompassed Weedman’s silence from the time of arrest through the date of
trial, i.e., Detective Betz’s statement that Weedman never initiated another conversation.
The State admits to only one “real instance of a Doyle problem,” that of an officer’s
testimony that he asked Weedman what happened and Weedman replied, “I’m taking the
Fifth on that.” Appellee’s Br. p. 31; Tr. p. 227. The State characterizes that testimony as
part of a “run-on answer,” that could not have been anticipated or prompted by the
19
prosecutor’s question about what a photograph depicted. Appellee’s Br. p. 31. The State
points out that the deputy prosecutor interrupted Deputy Wendling and told him, “Just stick
to what the pictures are.” Tr. p. 227. Therefore, the State says, there was no prosecutorial
misconduct.
Even if we were to conclude that the deputy prosecutor’s questions and comments
were Doyle violations, Weedman did not object to the questions and comments at issue, and
he has failed to demonstrate that the alleged misconduct amounted to fundamental error. For
the reasons already mentioned, the State presented overwhelming evidence that Weedman’s
self-defense claim failed due to his excessive use of force against Schlichter. Given the
overwhelming evidence of his excessive force, Weedman claim of fundamental error fails.
See, e.g., Sobolewski, 889 N.E.2d at 858 (“Given the overwhelming evidence offered to
impeach Sobolewski, as well as the evidence of his guilt, we conclude that it is clear beyond
a reasonable doubt that any error in the State’s use of Sobolewski’s post-arrest silence to
impeach him did not contribute to his conviction and, therefore, was harmless.”).
III. Admission of Testimony Regarding Statements by Weedman’s Mother
Weedman argues that the trial court abused its discretion by admitting testimony
regarding certain statements made by his mother. The trial court has broad discretion to rule
on the admissibility of evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). We
review a trial court’s rulings for an abuse of that discretion, and we reverse only when
admission is clearly against the logic and effect of the facts and circumstances and the error
affects a party’s substantial rights. Id.20
Weedman argues that the trial court abused its discretion by admitting evidence of
statements made by Cindy Schlichter, Weedman’s mother and Schlichter’s wife, to EMT
Hillary Gaskill and to Detective Diane Betz of the Wells County Sheriff’s Department.
According to Weedman, both EMT Gaskill and Detective Betz’s testimony was hearsay and
was “extremely prejudicial” because it diminished Weedman’s claim of self-defense.
Appellant’s Br. p. 38.
EMT Gaskill testified that Cindy told her that Weedman wanted to kill himself
because of what he had done to Schlichter, that Weedman and Schlichter did not get along,
and that she had broken up fights between the two men before. Weedman objected, and the
trial court allowed the testimony for impeachment purposes only. Weedman does not argue
that admission for impeachment purposes was error.6 Cindy had earlier testified that she did
not recall telling the EMT that Weedman wanted to kill himself. During closing arguments,
the deputy prosecutor said:
Mother also told the EMT that the Defendant told her “I should
probably just kill myself because I went too far with Mr.
Schlichter.” “I went too far.” Pretty easy word to understand.
“I did more than I should have. I should have stopped here and I
went too far.” “This was enough and I went beyond that.” “I
went too far, I ought to just kill myself.” I’m that upset because
I went too far. Again, not something you say if you are
innocent.
Tr. pp. 344-45.
6
In his reply brief, Weedman asserts the State “is incorrect in claiming that Weedman does not allege the
trial court erred in admitting for impeachment purposes [the EMT’s] testimony.” Appellant’s Reply Br. p.
14. He directs us to page 36 of his Appellant’s brief, but there is no discussion, or even mention, of
impeachment on that page.
21
Evidence admitted only for impeachment may not be used as substantive evidence.
Lawrence v. State, 959 N.E.2d 385, 389 (Ind. Ct. App. 2012), trans. denied. The State does
not argue that the testimony was admissible as substantive evidence, and we agree that the
evidence was improperly used during closing arguments as substantive evidence. Instead, the
State contends that any error in use of the evidence as substantive evidence rather than
impeachment was harmless.
We must disregard errors in the admission of evidence as harmless unless they affect a
party’s substantial rights. VanPatten v. State, 986 N.E.2d 255, 267 (Ind. 2013); Ind. Trial
Rule 61. In determining whether error in the introduction of evidence affected the
defendant’s substantial rights, we must assess the probable impact of the evidence upon the
jury. Id. When a conviction is supported by substantial evidence of guilt sufficient to satisfy
this Court that there is no substantial likelihood that the questioned evidence contributed to
the conviction, the error is harmless. Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App.
2004). Given the overwhelming evidence of excessive force used by Weedman in injuring
Schlichter, we conclude that there is no substantial likelihood that the use of the testimony as
substantive evidence rather than impeachment evidence contributed to the conviction.
As for Detective Betz’s testimony, Detective Betz testified that Cindy told her that,
according to Weedman, Schlichter had “come at” Weedman and was going to hit Weedman.
Tr. p. 206. Cindy told Detective Betz that Weedman would not tell Cindy any more
information “because he knew she couldn’t keep her mouth shut.” Id. Weedman did not
object to this testimony. Because he did not object, he must demonstrate that the admission
22
of the evidence resulted in fundamental error. Brown, 929 N.E.2d at 207. However, the
fundamental error exception is extremely narrow, and applies only when the error constitutes
a blatant violation of basic principles, the harm or potential for harm is substantial, and the
resulting error denies the defendant fundamental due process. Id. The error claimed must
either make a fair trial impossible or amount to clearly blatant violations of basic and
elementary principles of due process. Id.
We need not address whether the testimony was properly admitted because we
conclude that, even if its admission was improper, it did not result in fundamental error. It
was so prejudicial as to be fundamental error, Weedman says, because it diminished
Weedman’s credibility and his claim of self-defense because it suggested his defense was
fabricated and Weedman and Schlichter had a violent history. However, Cindy’s assertion
that Schlichter had “come at” Weedman and was going to hit him was helpful to Weedman’s
self-defense theory. Tr. p. 206. The assertion that Weedman did not believe Cindy could
“keep her mouth shut,” simply does not amount to fundamental error. Id. To the extent that
the testimony diminished his self-defense claim, that claim was diminished much more by the
overwhelming expert medical testimony regarding Schlichter’s extensive injuries and the
amount of times he was hit by Weedman. The testimony did not make a fair trial impossible.
IV. Admission of Evidence of Traumatic Brain Injury
Weedman argues that the trial court abused its discretion by excluding evidence of his
traumatic brain injury. The trial court has broad discretion to rule on the admissibility of
evidence. Guilmette, 14 N.E.3d at 40. We review a trial court’s rulings for an abuse of that
23
discretion, and we reverse only when admission is clearly against the logic and effect of the
facts and circumstances and the error affects a party’s substantial rights. Id.
Weedman sought to admit photographs of himself showing his 2008 brain injury. The
trial court granted the State’s motion in limine to exclude the photographs and would not
allow their admission at trial when Weedman sought to introduce them. He argued at trial
that the photographs were relevant to show the brain injury, which was the basis for his
reasonable belief he would be killed or seriously injured if Schlichter landed a punch to
Weedman’s head. The State argues Weedman presented no doctor as a sponsoring witness
and only a doctor could testify about damage to Weedman’s skull. The trial court noted that
evidence of Weedman’s prior injury had already been admitted and that there had “been no
connection . . . thus far that these injuries in any way relate to the alleged incident in this
case.” Tr. p. 321.
When a defendant asserts self-defense, any fact that reasonably would place a person
in fear or apprehension of death or bodily injury is admissible. Russell v. State, 577 N.E.2d
567, 568 (Ind. 1991). There need not be actual danger—a good faith belief is sufficient.
Shepard v. State, 451 N.E.2d 1118, 1120-21 (Ind. Ct. App. 1983). Weedman relies on Brand
v. State, 766 N.E.2d 772, 782 (Ind. Ct. App. 2002), trans. denied, where we determined the
trial court should not have excluded Brand’s testimony that his victim sold drugs, was a
member of a gang, and had offered to sell Brand a gun. We noted evidence of the victim’s
character may be admitted to show that the victim had a violent character giving the
defendant reason to fear him. Brand, 766 N.E.2d at 780. The victim’s reputation for
24
violence is pertinent to a claim of self-defense. Id. Thus, the victim’s reputed character,
propensity for violence, prior threats and acts, if known by the defendant, may be relevant to
the issue of whether a defendant had fear of the victim prior to utilizing deadly force against
him. Id. Therefore, a defendant is entitled to support his claim of self-defense by
introducing evidence of matters that would make his fear of the victim reasonable. Id.The photos Weedman wanted admitted do not indicate Schlichter had a violent
character, but Weedman argues they, like the testimony in Brand, illustrate “the
reasonableness of [Weedman’s] fear of attack by the victim and the need to defend himself.”
Appellant’s Br. p. 41. The applicability of Brand is questionable as there we explicitly said
the evidence introduced by a defendant to show his apprehension of the victim must imply a
propensity for violence on the part of the victim. Brand, 766 N.E.2d at 780. Weedman’s
evidence indicates why he had reason to fear Schlichter, but it does not show Schlichter had
violent tendencies.
Regardless, we conclude that, even if the photos should have been admitted, any error
was harmless. As the trial court noted, evidence regarding Weedman’s traumatic brain injury
and fear of being hit on the head was repeatedly discussed during the trial. The photos were
merely cumulative of other evidence presented at the trial. “Where the wrongfully excluded
testimony is merely cumulative of other evidence presented, its exclusion is harmless error.”
Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind. 1998). Therefore, Weedman was not
prejudiced by the exclusion of the evidence.
V. Sufficiency of the Evidence
25
Weedman next argues that the State failed to rebut his claim of self-defense. Indiana
Code Section 35-41-3-2(c) provides: “A person is justified in using reasonable force against
another person to protect himself or a third person from what he reasonably believes to be the
imminent use of unlawful force.” A claim of self-defense requires a defendant to have acted
without fault, been in a place where he or she had a right to be, and been in reasonable fear or
apprehension of bodily harm. Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). “However,
the force used must be proportionate to the requirements of the situation.” McKinney v.
State, 873 N.E.2d 630, 643 (Ind. Ct. App. 2007), trans. denied. A claim of self-defense will
fail if the person “uses more force than is reasonably necessary under the circumstances.”
Sudberry, 982 N.E.2d at 481. “Where a person has used more force than necessary to repel
an attack the right to self-defense is extinguished, and the ultimate result is that the victim
then becomes the perpetrator.” Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind. Ct. App.
1999).
The standard of review for a challenge to the sufficiency of evidence to rebut a claim
of self-defense is the same as the standard for any sufficiency of the evidence claim. Wilson,
770 N.E.2d at 800. We neither reweigh the evidence nor judge the credibility of witnesses.
Id. If there is sufficient evidence of probative value to support the conclusion of the trier of
fact, then the verdict will not be disturbed. Id. When a claim of self-defense is raised and
finds support in the evidence, the State has the burden of negating at least one of the
necessary elements. Id. If a defendant is convicted despite his or her claim of self-defense,
26
we will reverse only if no reasonable person could say that self-defense was negated by the
State beyond a reasonable doubt. Id. at 800-01.
Weedman testified that Schlichter initiated the altercation by insulting him and then
twisting his finger. According to Weedman, Schlichter swung at him and missed, and
Weedman was in fear for his life due to his brain injury from 2008. Weedman claimed that
he hit Schlichter once, hit him with a glass as Weedman fell on Schlichter, and kicked
Schlichter a couple times. Even if the jury accepted Weedman’s explanation of how the
altercation started, the State presented more than enough evidence that Weedman responded
with more force than was reasonably necessary under the circumstances. Doctors testified at
the trial that Schlichter’s face was essentially flattened and that such injuries are typically
seen in car accidents or falls from large heights. Dr. Wagner testified that there were at least
four separate blows to Schlichter’s face but probably more than seven or eight blows. Dr.
Wagner testified that Weedman’s explanation would not account for Schlichter’s injuries.
Rather, Dr. Wagner testified that, rather than kicking, “it would be more of a stomping type
injury . . . .” Tr. p. 305. According to Dr. Wagner, after the blow fracturing Schlichter’s
sinus and causing the brain bruise, he would have been immediately debilitated. Dr. Reed
testified that there were more than enough strikes to render Schlichter unconscious. The
evidence was overwhelming that Weedman’s reaction to Schlichter’s alleged actions did not
qualify as self-defense because he used more force than was reasonably necessary under the
circumstances. The evidence is sufficient to sustain Weedman’s conviction.
VI. Sentencing—Abuse of Discretion
27
Sentencing decisions are within the sound discretion of the trial court. Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. However, a trial
court may be found to have abused its sentencing discretion in a number of ways, including:
(1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that
explains reasons for imposing a sentence where the record does not support the reasons; (3)
entering a sentencing statement that omits reasons that are clearly supported by the record
and advanced for consideration; and (4) entering a sentencing statement in which the reasons
given are improper as a matter of law. Id. at 490-91. The reasons or omission of reasons
given for choosing a sentence are reviewable on appeal for an abuse of discretion. Id. at 491.
The weight given to those reasons, i.e. to particular aggravators or mitigators, is not subject
to appellate review. Id.
Weedman argues that the trial court abused its discretion because it found no
mitigating factors. Weedman argues that the trial court should have found that his mental
illness and the fact that Schlichter “induced or facilitated” the offense were mitigators.
Appellant’s Br. p. 50. A trial court is not obligated to accept a defendant’s claim as to what
constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A
claim that the trial court failed to find a mitigating circumstance requires the defendant to
establish that the mitigating evidence is both significant and clearly supported by the record.
Anglemyer, 868 N.E.2d at 493.
The trial court considered but rejected Weedman’s mental health and the fact that
Schlichter instigated the altercation as a mitigating factors. The trial court stated:
28
I believe there’s probably enough testimony during the trial and
[I] certainly believe Mr. Schlichter by all accounts was an
alcoholic. I’m sure that, I think it’s uncontested that his
interaction with Mr. Weedman, Mr. Schlichter’s interaction[s]
with Mr. Weedman were difficult, that there was a lot of
animosity between the two parties, but I have to also consider
looking at the Defendant’s criminal history over this period of
time that he would have lived in Mr. Schlichter’s home probably
fueled some of that animosity. So as much as Mr. Weedman
wants to blame Mr. Schlichter for the way he was treated, Mr.
Weedman needs to probably also consider his own conduct
during that period of time as well.
*****
Also considered Mr. Weedman you have, the injuries you suffer
from that you are asking for leniency on are the result and
counsel wants me to consider the previous injuries to your head,
I can’t not consider the fact that those injuries were self-inflicted
by you when you attempted to commit suicide at one point by
driving your vehicle into another vehicle that had just been
occupied by your girlfriend at that time . . . . The point is you
caused, these injuries to yourself are self-imposed.
Tr. p. 381.
According to Weedman, there was no evidence that his girlfriend had just exited the
vehicle that he hit in 2008. The State concedes that there was no evidence presented that
Weedman’s girlfriend had just exited the vehicle but argues that the trial court was referring
to another woman who was slightly injured when Weedman’s vehicle also hit her vehicle.
Regardless, although the trial court briefly mentioned this fact, its main focus during the
discussion was the fact that Weedman’s injuries were self-inflicted. We are confident that
this error did not affect the sentence imposed by the trial court. See Anglemyer, 868 N.E.2d
at 491 (requiring remand for resentencing “if we cannot say with confidence that the trial
29
court would have imposed the same sentence had it properly considered reasons that enjoy
support in the record”).
Further, Weedman argues that, regardless of the fact that his injuries were self-
inflicted, he was left with a significant brain injury, and that Schlichter verbally abused and
attempted to physically abuse Weedman “for years.” Appellant’s Br. p. 50. The trial court
clearly considered those arguments and rejected them as mitigating factors. Although
Schlichter’s behavior may have left much to be desired, the trial court properly pointed out
that Weedman contributed to the situation too. Although evidence of Weedman’s mental
health issues were presented, “[i]n order for a [defendant’s] mental history to provide a basis
for establishing a mitigating factor, there must be a nexus between the defendant’s mental
health and the crime in question.” Steinberg v. State, 941 N.E.2d 515, 534 (Ind. Ct. App.
2011), trans. denied. Weedman has not established a nexus between his mental health and
the offense. Weedman has not shown that either proposed mitigator was significant or
clearly supported by the record.
VII. Inappropriate Sentencing
Weedman argues that his sentence is inappropriate under Indiana Appellate Rule 7(B).
Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, we find that the sentence is inappropriate in
light of the nature of the offenses and the character of the offender. When considering
whether a sentence is inappropriate, we need not be “extremely” deferential to a trial court’s
sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still,
30
we must give due consideration to that decision. Id. We also understand and recognize the
unique perspective a trial court brings to its sentencing decisions. Id. Under this rule, the
burden is on the defendant to persuade the appellate court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement of
the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—the
aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or
length of the sentence on any individual count.” Id. When reviewing the appropriateness of
a sentence under Rule 7(B), we may consider all aspects of the penal consequences imposed
by the trial court in sentencing the defendant, including whether a portion of the sentence was
suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
The nature of the offense is that thirty-one-year-old Weedman brutally beat his
stepfather, leaving him permanently disabled and legally blind. Although Weedman claimed
that Schlichter was the initial aggressor, Weedman’s response was vicious. One expert
opined that Schlichter sustained “stomping” injuries. Tr. p. 305. Weedman essentially
“flattened” Schlichter’s face. Id. at 300.
A review of the character of the offender reveals that Weedman has a history of
criminal offenses. As a juvenile, he was placed in programs of informal adjustment in 1996
for incorrigibility and illegal possession of an alcoholic beverage and in 2000 for
31
incorrigibility. In 2001, he was placed on a program of formal adjustment for possession of
marijuana and illegal possession of an alcoholic beverage. As an adult, he was convicted of
Class A misdemeanor resisting law enforcement and Class A misdemeanor possession of
marijuana in 2002. In 2003, he pled guilty to Class C misdemeanor operating a vehicle while
intoxicated and Class C misdemeanor illegal possession of an alcoholic beverage. Judgment
was withheld, and the case was later dismissed. In the military, he was charged with
wrongful possession of drugs and received a “punitive discharge.” App. p. 406. In 2008, he
was convicted of Class A misdemeanor invasion of privacy, and he later violated his
probation by committing a new offense. In 2009, he was convicted of Class D felony battery
resulting in bodily injury to a police officer and Class A misdemeanor battery resulting in
bodily injury. We also note that, in 2008, Weedman drove his vehicle into his girlfriend’s
parked car in a suicide attempt. He was charged with Class A misdemeanor criminal
recklessness, but that charge was later dismissed. As a result of the suicide attempt,
Weedman sustained a traumatic brain injury. His PSI notes that Weedman has been
diagnosed with “Substance-Induced Mood Disorder, Antisocial Personality Disorder,
Impulse Control Disorder, Personality Disorder, Bipolar Disorder, and Malingering.” Id. at
404.
Weedman argues that, given his traumatic brain injury and mental illness, we should
reduce his twenty-year sentence to twelve years. However, it appears that, even before his
2008 suicide attempt, Weedman had difficulty conforming to society’s expectations. Given
32
the significant injuries to Schlichter and Weedman’s failure to learn from his past criminal
convictions, we cannot say that the sentence imposed by the trial court is inappropriate.
Conclusion
Although it was erroneous to admit evidence of Weedman’s withdrawn insanity
defense, we conclude that the error did not result in fundamental error based on the
overwhelming evidence of Weedman’s excessive use of force. For the same reason, the
deputy prosecutor’s alleged misconduct did not result in fundamental error. Testimony
regarding statements made by Weedman’s mother to an EMT was harmless, and testimony
regarding statements made by his mother to a detective did not result in fundamental error.
We recognize that a significant amount of evidence was improperly admitted at this trial. At
some point, the cumulative effect of the improper evidence would reach a tipping point and
make a fair trial impossible. See Myers v. State, 887 N.E.2d 170, 196 (Ind. Ct. App. 2008)
(acknowledging “the possibility that the cumulative effect of trial errors may warrant
reversal”), trans. denied. However, given the avalanche of evidence of Weedman’s excessive
force, we conclude that the tipping point was not reached here.
We also conclude that any error in the exclusion of photographs of Weedman’s
traumatic brain injury was harmless because the photographs were cumulative of other
evidence admitted regarding the brain injury. The State presented sufficient evidence to
rebut Weedman’s self-defense claim, and the trial court properly sentenced Weedman.
Finally, we conclude that his twenty-year sentence is not inappropriate. We affirm.
33
Affirmed.
MAY, J., and CRONE, J., concur.
34