Derrick Weedman v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 23 2019, 10:03 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
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estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
C. Brent Martin Ian McLean
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derrick Weedman, January 23, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-2144
v. Appeal from the Wells Circuit
Court
State of Indiana, The Honorable Kenton W.
Appellee-Respondent Kiracofe, Judge
Trial Court Cause No.
90C01-1603-PC-6
Baker, Judge.
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[1] Derrick Weedman appeals the post-conviction court’s denial of his petition for
post-conviction relief, arguing that his trial counsel provided ineffective
assistance by not requesting a jury instruction containing the complete
definition of self-defense. Finding no error, we affirm.
Facts
[2] On June 20, 2012, a physical altercation broke out between Weedman and his
step-father, Ted Schlichter, at their home. Weedman testified that Schlichter
was the initial aggressor. Appellant’s App. Vol. II p. 104. According to
Weedman, Schlichter “twisted [Weedman’s] pinkie tearing the tendon, then
threw a punch at him.” Id. Weedman allegedly “feared for his life” if he were to
get hit because he had a metal plate in his head from a prior severe head injury.
Id. Weedman claimed that after Schlichter tackled him to the ground,
Weedman hit back at Schlichter a few times to get him off.
[3] After the fight concluded, Schlichter’s wife found Schlichter lying on the living
room floor, bleeding heavily from his head. She placed a towel under his head
and called 911. During this time, Weedman waited in the kitchen. The
paramedics arrived and took Schlichter to the hospital.
[4] Later medical examinations revealed that Schlichter had between eleven and
twelve bones broken in his face and that his face had been flattened and shoved
into the back of his skull. Additionally, Schlichter suffered neurological damage
as a result of severe blunt-force trauma that rendered him unable to remember
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what happened during the incident. As such, Weedman was the sole eye-
witness to the altercation. Schlichter’s eyesight, memory, and facial structure
have been permanently damaged because of Weedman’s actions. One of
Schlichter’s treating physicians testified that Schlichter’s injuries could not have
been caused by just two blows to the head. Id. at 124.
[5] On July 23, 2012, the State charged Weedman with one count of Class B felony
aggravated battery. At the jury trial in August 2013, Weedman claimed that he
acted in self-defense. Therefore, Weedman’s trial counsel requested a self-
defense jury instruction. The trial court prepared the following instruction:
Final Instruction No. 12:
It is an issue whether the Defendant acted in self-defense.
A person may use reasonable force against another person to
protect himself from what the Defendant reasonably believes to be
the imminent use of unlawful force.
However, a person my [sic] not use force if:
He provokes a fight with another person with intent to cause
bodily injury to that person; or he has willingly entered into a fight
with another person or started the fight, unless he withdraws from
the fight and communicates to the other person his intent to
withdraw and the other person nevertheless continues or threatens
to continue the fight.
The State has the burden of proving beyond a reasonable doubt
that the Defendant did not act in self-defense.
Id. at 124-25. Weedman’s trial counsel neither objected to this final instruction
nor requested an instruction that covered the entirety of the self-defense statute.
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The jury found Weedman guilty as charged. The trial court later sentenced
Weedman to twenty years imprisonment. On November 26, 2014, we affirmed
Weedman’s conviction. Weedman v. State, 21 N.E.3d 873 (Ind. Ct. App. 2014).
[6] On March 30, 2017, Weedman filed an amended petition for post-conviction
relief, claiming that his trial counsel provided ineffective assistance by failing to
object to the self-defense instruction or request an instruction containing the
complete definition of self-defense. On August 10, 2018, the post-conviction
court denied his petition. Weedman now appeals.
Discussion and Decision
[7] Weedman appeals the denial of his petition for post-conviction relief, arguing
that his trial counsel provided ineffective assistance with respect to the self-
defense jury instruction.
[8] In post-conviction proceedings, the petitioner bears the burden of establishing
grounds for post-conviction relief by a preponderance of the evidence. Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). A petitioner must show that the
evidence unerringly and unmistakably leads to a conclusion opposite that
reached by the trial court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
Furthermore, we will consider only the evidence and reasonable inferences
supporting the post-conviction court’s judgment. Id.[9] For a claim of ineffective assistance of counsel, we use a two-part test. To
satisfy the first prong, the defendant must show deficient performance:
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representation that fell below an objective standard of reasonableness,
committing errors so serious that the defendant did not have the “counsel”
guaranteed by the Sixth Amendment. Humphrey v. State, 73 N.E.3d 677, 682
(Ind. 2017); see generally Strickland v. Washington, 466 U.S. 668, 687 (1984). To
satisfy the second prong, the defendant must show prejudice: a reasonable
probability (i.e., a probability sufficient to undermine confidence in the
outcome) that, but for counsel’s errors, the result of the proceeding would have
been different. Id. Our Supreme Court has instructed us that “[i]f it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice
. . . that course should be followed.” Wentz v. State, 766 N.E.2d 351, 360 (Ind.
2002).
[10] Weedman argues that his counsel should have requested a self-defense
instruction that included the section of the statute governing claims of self-
defense that discusses when a person may use deadly force. That section of the
statute reads as follows:
. . . However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to
prevent serious bodily injury to the person or a third person or the
commission of a forcible felony. No person in this state shall be
placed in legal jeopardy of any kind whatsoever for protecting the
person or a third person by reasonable means necessary.
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Ind. Code § 35-41-3-2(c). Weedman argues that the result would have been
different had the jury been aware of the section regarding serious bodily injury.
Specifically, he emphasizes that his defense was based on a claim that he had
acted because he feared for his life.
[11] Because Weedman’s counsel did not object, we must determine whether the
instruction was fundamentally erroneous. To determine whether an instruction
is fundamentally erroneous, we will review the record in its entirety to
determine whether an honest and fair-minded jury would have rendered a
guilty verdict absent use of the erroneous instruction. Coleman v. State, 630
N.E.2d 1376, 1378 (Ind. Ct. App. 1994). If a jury instruction is not
fundamentally erroneous, then counsel is not ineffective for failing to object at
trial. Wilcoxen v. State, 705 N.E.2d 198, 204 (Ind. Ct. App. 1999).
[12] The evidence of Weedman’s guilt is overwhelming. The record shows that
Schlichter suffered major injuries that will forever impair his eyesight, memory,
and appearance. Weedman broke at least eleven bones in Schlichter’s face and
shoved his face into the back of his skull. Weedman beat Schlichter within an
inch of his life even after the threat of potential harm to him subsided. One of
Schlichter’s treating physicians opined that it could not have been a few slight
blows that caused Schlichter’s injuries, despite Weedman’s testimony to the
contrary. There is also no indication that Weedman was under threat of serious
bodily injury from Schlichter’s actions. Any evidence demonstrating that
Weedman was justified in using deadly force is scant. All that Weedman
proffered was his own self-serving testimony that he feared being injured
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because he had a metal plate in his head from a prior injury. Based on the
record, we can only conclude that the jury would have rendered a guilty verdict
for Weedman on a charge of aggravated battery even if the jurors had been
instructed on the complete definition of self-defense. In other words, any error
was harmless, and Weedman cannot show that he was prejudiced by counsel’s
failure to object to the instruction.
[13] Therefore, the post-conviction court did not err by denying his petition.
[14] The judgment of the post-conviction court is affirmed.
May, J., and Tavitas, J., concur.
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