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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