Susan K. Carpenter
Public Defender of Indiana
Thomas C. Hinesley
Deputy Public Defender
Janet S. Dowling, Special Assistant
J. Jeffreys Merryman, Jr.
Deputy Public Defender
Indianapolis, Indiana

Attorneys for Appellee

Pamela Carter
Attorney General of Indiana
James A. Joven
Deputy Attorney General
Indianapolis, Indiana

SULLIVAN, Justice.

    We review and affirm a post-conviction court's denial of Mark Allen Wisehart's petition for post-conviction relief.

    Petitioner Mark Allen Wisehart appeals the denial of post-conviction relief with respect to his convictions for Murder,See footnote 1 Robbery,See footnote 2 Burglary,See footnote 3 and TheftSee footnote 4 and his sentence of death.See footnote 5 We earlier affirmed Wisehart's direct appeal of these convictions and sentence. Wisehart v. State, 484 N.E.2d 949 (Ind. 1985), cert. denied 476 U.S. 1189 (1986).

    The crimes of which Wisehart was convicted involved the beating and stabbing of an elderly woman, Marjorie Johnson, in her apartment and the taking of a small amount of money. Wisehart was convicted largely on the strength of a detailed confession which we ruled on direct appeal was properly admitted at trial. Of importance to issues facing us in this appeal is that the confession gave no suggestion that Wisehart had any accomplices in the crimes and that all of the other evidence linking Wisehart to the crimes was circumstantial. We refer the reader to our earlier opinion for additional details of the facts.

    Wisehart's most substantial claim of entitlement to post-conviction relief is grounded in a claim of "newly-discovered evidence." He argues that while he was convicted and sentenced on the theory that he acted alone, new evidence presented at his post-conviction hearing shows that he had two accomplices, one of whom was the primary actor in the murder.

    In order for newly-discovered evidence to merit relief, the claimant must establish each of the following: (1) that the evidence was not available at trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not privileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) that the evidence is worthy of credit; (8) that it can be produced upon a retrial of the case; and (9) that it will probably produce a different result. Fox v. State, 568 N.E.2d 1006, 1007 (Ind. 1991).

    During the post-conviction hearing, there was testimony from one Robert Disney that he, one Tony Fuqua, and Wisehart had set out to burglarize the victim's apartment and when she was unexpectedly found to be home, he saw Wisehart and Fuqua physically attack her and Fuqua (but not Wisehart) stab her several times.

    More specifically, Disney testified at the post-conviction hearing that when the threesome entered the victim's apartment, Wisehart grabbed the victim by the arm, spun her around, and put his arm around her neck in a choke hold. Disney testified further that when the victim started to scream, Wisehart said, "[S]omebody shut her up," and Fuqua then punched her in the stomach. (R. at 1386.)See footnote 6 Disney continued that the victim then fell to the floor and Wisehart kicked her; that he saw Fuqua but not Wisehart stab her several times; and that after the stabbing, Wisehart directed Fuqua to "get rid of those items" Fuqua used to stab the victim. Disney testified that he himself never touched the victim, that he "just couldn't deal with whatever it was that was going on," and left during the attack.

    Officer Moberly, a police detective with major responsibility for investigating the crime, testified at the post-conviction hearing that Wisehart had verified most of the details of a substan tially similar account given by Disney in an interview some years after Wisehart's conviction. Moberly also testified that he had come to believe Disney's account.

    Also in evidence at the post-conviction hearing was the transcript from Wisehart's trial and police reports related to the investigation of the crimes.See footnote 7 This evidence, together with the Disney and

Moberly testimony, contains the following additional information relevant to this claim:

    1.    Prior to his trial, Wisehart confessed to the crimes and accepted sole responsibility for them. He specifically admitted stabbing the victim and did not give any indication but that he had acted alone.

    2.    Again prior to Wisehart's trial, Fuqua was arrested and charged with assisting a criminal on the basis that he had admitted being outside the apartment while Wisehart was inside committing the crimes.

    3.    Again prior to trial, Disney was interviewed on several occasions about possible involvement in the crimes. Disney denied involvement and was not considered a suspect.

    4.    Both Disney and Fuqua were on the State's witness list for trial but neither was called.

    5.    At trial during the guilt phase, Wisehart presented testimony from Officer Moberly and from another police officer involved in the investigation, both of whom indicated that it was possible that other people were involved in the crime.

    6.    During the trial but outside the presence of the court, Wisehart was interviewed by the police and told them that he, one Gregory Scott Johnson (no relation to the victim) and a third

person had committed the crimes and that it had been Johnson who had stabbed the victim to death.See footnote 8 During this session, Wisehart apparently inadvertently once indicated that the third person was Disney.

    7.    During the penalty phase, Wisehart's counsel attempted to present testimony through Moberly that other people may have been involved in the crime as a mitigating circumstance. However, the trial judge refused to allow such evidence to be presented to the jurySee footnote 9 and no evidence regarding the possible involvement of others was presented to the jury during the penalty phase. During defense counsel's offer to prove in this regard, Officer Moberly indicated that it was now his belief that no one else was involved in the crimes and Dr. Joy, a defense expert witness, testified that Wisehart had told him others were involved. At the sentencing hearing, a defense investigator testified that Wisehart had told the investigator that others were involved in the crime and that

Wisehart never struck the victim.See footnote 10

    8. After Wisehart was convicted and sentenced, the Anderson Police Department continued investigating the crimes. The record shows that during this investigation, Moberly spoke with Disney who again denied involvement. At the post-conviction hearing, Moberly testified that some months later he again spoke to Disney who changed his story and gave Moberly an account substan tially the same as that which Disney presented at the post-conviction hearing. The record contains a statement signed by Disney containing an account substantially the same as that which Disney presented at the post-conviction hearing.See footnote 11 Moberly testified that he then visited Wisehart in prisonSee footnote 12 and Wisehart "verified" Disney's account. Disney's account remains essentially unchanged from that point forward. But the record indicates that several months later, Moberly again visited Wisehart in prison and Wisehart returned to his account that Johnson was his accomplice and that Johnson had done the stabbing.

    9.    The record contains a police report dated July 31, 1985, in which Moberly wrote that the Madison County prosecutor had decided not to pursue charges against Fuqua because, "although there was enough to sustain a grand jury indictment, he felt that once in trial, there would not be enough for a conviction as the state could only present Robert Disney, and Fuqua probably would testify and it would be down to which witness would be the most credible. It was felt that because of Disney's appearance and background he would not be the most credible." Moberly also wrote: "This case is now suspended: Mark Wisehart is on death row. It is known now that Fuqua and Disney were the other co-conspirators. Fuqua inflicted most of the damage on the victim. Never once have we uncovered any evidence that Wisehart was not involved. Disney will remain to have immunity should he ever testify for the state." (R. at 1256.)

    10.    As indicated at the outset of this section, Disney and Moberly testified at the post- conviction hearing.

    Wisehart contends that the evidence that Disney and Fuqua were involved in the crimes and that Fuqua stabbed the victim constitutes "newly discovered evidence," entitling him to have both his convictions and death sentence set aside. The post-conviction court rejected these claims, finding that this evidence was insufficient to entitle Wisehart to relief from either his convictions or his sentence. As discussed at the outset of this part I, Fox sets forth nine stringent requirements, each

of which a claimant must satisfy in order to obtain relief on grounds of newly discovered evidence.See footnote 13 Fox, 568 N.E.2d at 1007. We conclude that Wisehart has not satisfied at least three of the Fox requirements. He has not established that the evidence was not available at trial. He has not established that due diligence was used to discover this evidence in time for trial. And has not established that this evidence would probably produce a different result on re-trial.

    By definition, a claim for relief based on newly discovered evidence must not be based on evidence or information of which the claimant had knowledge prior to trial. See United States v. Calderon, 127 F.3d 1314, 1351 (11th Cir. 1997), cert. denied sub nom Noa v. United States. 118 S.Ct. 1090 (1998). It has long been the rule in this state that "[a] defendant in possession of evidence, who fails to present the evidence at trial, cannot use such evidence as a basis for a new trial following an unfavorable verdict." Fleener v. State, 274 Ind. 473, 479, 412 N.E.2d 778, 782 (1980) (quoting Riddle v. State, 273 Ind. 112, 116-117, 402 N.E.2d 958, 961 (1980)). See Vacendak v. State, 264 Ind. 101, 109, 340 N.E.2d 352, 357 (1976) (citing DeShone v. State, 207 Ind. 380, 386, 193 N.E. 223, 225 (1934)).

    What Wisehart claims is "newly discovered" is Disney's account placing Fuqua and Disney in the victim's home with Wisehart at the time the crimes were being committed. Wisehart does not claim that he was not present. As such, to the extent that Wisehart claims that Disney's testimony is accurate, Wisehart knew prior to trial about Fuqua's and Wisehart's relative roles in the crimes because he was there with them. The evidence that Disney and Fuqua were involved in the crimes and that Fuqua stabbed the victim is not newly discovered evidence under Fox because, if it is true, it constitutes evidence or information of which Wisehart had knowledge prior to trial.

    The Fifth Circuit has observed that "newly available" evidence is not necessarily synonymous with "newly discovered" evidence. United States v. Metz, 652 F.2d 478, 480 (5th Cir. 1981). This is particularly the case when a witness comes forward with exculpatory testimony after trial has been completed. As Fox makes clear, evidence is not "newly discovered" if due diligence was not used to discover it in time for trial. Fox, 568 N.E.2d at 1007. We have rejected as not meeting the Fox requirements newly available evidence consisting of post-trial exculpatory testimony from a co- defendant, accomplice or alibi witness where there was no effort made to produce it at trial. See, e.g., James v. State, 613 N.E.2d 15, 25 (Ind. 1993); Bradburn v. State, 425 N.E.2d 144, 146 (Ind. 1981). (James and Butler also stand for the proposition discussed in subsection B-1, supra.)

    Prior to trial, Fuqua had been arrested and charged with assisting Wisehart. Disney had been interviewed. Both Fuqua and Disney were on the State's witness list for trial. Disney had been

identified by Wisehart (in the out of court police interview during trial) as having been involved. And there was evidence and argument during trial that others were involved. The evidence that Disney and Fuqua were involved in the crimes and that Fuqua stabbed the victim is not newly discovered evidence under Fox because, given that Fuqua and Disney had been identified prior to trial but were not called as witnesses, due diligence was not used to discover the evidence.

     Under Fox, newly discovered evidence warrants relief only if the evidence will probably produce a different result. Fox, 568 N.E.2d at 1007; Bradford v. State, 675 N.E.2d 296, 302 (Ind. 1996), reh'g denied. As to Wisehart's convictions, the only direct evidence at trial of Wisehart's involvement in the crime was his confession. The Disney statement places Wisehart in the apartment, holding the victim in a headlock, and directing Fuqua to silence her. It has Wisehart kicking the victim and directing Fuqua to dispose of the murder weapons. If anything, the Disney testimony would have made Wisehart's conviction of the crimes more likely.

    As to the death sentence, our death penalty statute contains several statutory mitigating circumstances that are relevant here. Mitigating circumstances providing that the defendant's participation was relatively minor and that the defendant acted under the substantial domination of another personSee footnote 14 are in no way established by this evidence. There was nothing in Disney's testi mony to suggest that Wisehart's participation was other than major. As to substantial domination,

Wisehart's reported orders to Fuqua to silence the victim and to dispose of the murder weapons point in the opposite direction.See footnote 15 Another statutory mitigator _ the defendant was an accomplice in a murder committed by another personSee footnote 16 _ also is not established by Disney's testimony. One who holds a victim in a choke hold and directs another to silence the victim shares full culpability for the killing even if the other strikes the fatal blow. See Ajabu v. State, No. 71S00-9512-CR-1377, 1998 WL 97849, at *11 (Ind. Mar. 6, 1998); Townsend v. State, 533 N.E.2d 1215, 1227 (Ind. 1989); Resnover v. State, 460 N.E.2d 922, 935 (Ind. 1984), cert. denied 469 U.S. 873 (1984). The kick and the directions on disposing of the weapons reinforce this conclusion.

    The death penalty statute also permits the sentencer to take into account, in addition to the mitigating circumstances specified in the statute, any other circumstances appropriate for consider ation. Ind. Code § 35-50-2-9(c)(7). It is here that Wisehart directs his argument with particular force. He contends that even if he was a principal actor in the murder, he was entitled to have the sentencer take into account testimony to the effect that he was not the only principal actor and that he personally did not stab the victim. Compared to the story presented at trial (Wisehart's own confession), the Disney account does not have Wisehart doing the stabbingSee footnote 17 but does add the following details: that Wisehart brought two others along to perpetrate the crime, that he held the

victim in a choke hold, that he directed another to silence her, that he threw her to the floor and kicked her, and that he directed another to dispose of the weapons used to stab her. We do not find the net effect of the Disney account to reduce Wisehart's involvement to the point that this evidence can be said probably to produce a different result.

    Wisehart's second most substantial claim of entitlement to post-conviction relief is that he was deprived of the effective assistance of counsel to which he was entitled when his trial counsel pursued contradictory theories of defense. While framed in several different ways, the gist of Wisehart's claim is that it was incompetent and prejudicial for his lawyer to argue at the same time that Wisehart was innocent and that he was insane. Wisehart presses his point with the following arguments. First, the jury simply could not accept Wisehart's lawyer's argument that Wisehart did not commit the crime when an insanity defense suggests that a defendant committed the crime but was not responsible for his actions. Second, the jury's ability to assign mitigating weight to Wisehart's mental condition was significantly undermined (if not logically excluded) by his lawyer's contention that he had not committed the crime. Third, any hope that Wisehart's lawyer had to make strategic use of the two defenses was undermined by counsel's alleged failure to explain the reasons for the apparent contradictions and by counsel's alleged failure to advance Wisehart's mental condition as a mitigating circumstance.

    Indiana analyzes claims of ineffective assistance of counsel according to the two-part test

announced in Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994). First, we require the defendant or petitioner to show that, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance. Id. This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Id. (citing Turner v. State, 580 N.E.2d 665, 668 (Ind. 1991)). Second, we require the defendant or petitioner to show adverse prejudice as a result of the deficient performance. This showing is made by demonstrating that counsel's performance was so prejudicial that it deprived the defendant or petitioner of a fair trial. Lowery, 640 N.E.2d at 1041. We will conclude that a fair trial has been denied when the conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unreliable. Id. (citing Best v. State, 566 N.E.2d 1027, 1031 (Ind. 1991)). See also Sanchez v. State, 675 N.E.2d 306, 310 (Ind. 1996).     

    We have never examined whether the simultaneous presentation of innocence and insanity defenses constitutes ineffective assistance of counsel nor does there appear to be other authority precisely on this point.See footnote 18 However, several lines of cases give us some guidance.

    For example, appellants seeking relief from criminal sanctions often contend that their lawyers at trial were ineffective for failing to raise defenses related to their mental condition. Courts _ including ours _ have rejected these claims of ineffective assistance of counsel by observing that such defenses likely would have been counter-productive because they would conflict with the proffered defense of actual innocence.See footnote 19 See Bieghler v. State, No. 34S00-9207-PD-583, 1997 WL 778978, at *15 n.10 (Ind. Dec. 18, 1997); Meredith v. State, 679 N.E.2d 1309, 1312 (Ind. 1997). See also Weeks v. Jones, 26 F.3d 1030, 1039 (11th Cir. 1994); Rose v. State, 617 So.2d 291, 294 (Fla. 1993); State v. Garrett, 386 S.E.2d 823, 830 (W.Va. 1989); Commonwealth v. Mizell, 425 A.2d 424, 426 (Pa. 1981).

    Another type of situation involving a conflict between the defenses of innocence and insanity caused the court to grant relief in Selsor v. Kaiser, 81 F.3d 1492 (10th Cir. 1996). Selsor and Dodson were charged with murder. Selsor's defense was that he was innocent; Dodson's defense was that he was insane. The state public defender was appointed counsel for both men. The trial court denied Selsor's motion that the defendants be tried separately, calling the joint representation problem "an internal problem for the Public Defender's office." The federal appeals court granted

Selsor's petition for habeas corpus relief, finding that the trial court had failed to discharge its constitutional duty to "take adequate steps to ascertain whether the risk [of conflict] was too remote to warrant separate counsel." Id. at 1503 (quoting Holloway v. Arkansas, 435 U.S. 475, 484 (1978)). In explaining its conclusion, the appeals court said:

        There was no inquiry into how Selsor's defense might be adversely affected by the joint representation even though the potential conflict of interest was patent. As defense counsel noted, Dodson would assert an insanity defense which required him to admit his role in the offenses, including his participation with Selsor. Selsor's defense was to deny any involvement. These inconsistent positions could color the judgment of the defense attorneys throughout the trial. An adequate consideration of the conflict would have revealed the impossibility of going forward with the joint representation.

Selsor, 81 F.3d at 1502-03 (footnote omitted).

    We believe a third set of cases are most relevant to the problem here. Because of the difficulties inherent in conducting trials where defenses of innocence and insanity are both available, some jurisdictions, either by case law or statute, require or permit bifurcated trials on the issues of innocence and insanity. See generally Debra T. Landis, Annotation, Necessity or Propriety of Bifurcated Criminal Trial on Issue of Insanity Defense, 1 A.L.R.4th 884 (1980). A claim of entitle ment to such a proceeding was made to this court in Hester v. State, 262 Ind. 284, 286, 315 N.E.2d 351, 352 (1974). While noting that Ind.Trial Rule 42(B) and (C) would authorize a bifurcated trial upon such issues, our Court also identified certain problems arising in such cases. In particular, we reviewed an Arizona decision declaring unconstitutional that state's statute requiring a bifurcated trial where a plea of not guilty by reason of insanity was asserted:

Looking to the procedural difficulty in administering bifurcated trials, the Arizona court noted that the trial court could not consider the evidence of insanity at the first trial and would thus be required to find intent solely from the circumstances con nected with the offense. '* * * The first trial then would involve only proof that an act of a criminal nature had been committed, and that the defendant committed it. In effect, this gives rise to a presumption of intent, premeditation, or malice which runs counter to the common law and constitutional concepts of criminal law. The second trial is limited solely to the question of legal insanity, the guilt of the defendant having already been determined. There is no provision, nor realistically could there be, to determine also intent, premeditation, or malice in reduction of the degree of the crime. Thus, the presumption raised in the first trial becomes an irrebuttable pre sumption. Such a presumption is in violation of due process, * * *.' [State v. Shaw,] 471 P.2d [715,] 724 [(Ariz. 1970)].

    We hold that although a plea of insanity may be viewed as an admission of the commission of the criminal act and may in other ways ease the State's burden of proof, it does not, in the absence of other compelling circumstances, entitle a defen dant to a bifurcated trial. We do not view the defendant's alleged reason for request ing the two-stage trial as a circumstance giving rise to probable and substantial prejudice such as required a variance from the established and normal single trial procedure.

Hester, 262 Ind. at 287-88, 315 N.E.2d at 353. Many jurisdictions have reached the same result. See State v. Hightower, 661 A.2d 948, 953 (R.I. 1995); Commonwealth v. Jermyn, 533 A.2d 74, 82 (Pa. 1987); State v. Ward, 272 S.E.2d 84, 87 (N.C. 1980); Leick v. State, 281 P.2d 806, 811 (Col. 1955). Contra, Holmes v. United States, 363 F.2d 281, 284 (D.C. Cir. 1966).

    At bottom, we conclude from these lines of cases that in the absence of other compelling circumstances, a criminal defendant is not subjected "to probable and substantial prejudice" when counsel does maintain both defenses.

    We find that there was a sound strategic reason for placing Wisehart's mental condition at issue in this case. Counsel was not maintaining that Wisehart was not guilty by reason of insanity but rather asserting insanity as an explanation for the most damaging evidence the State had against Wisehart's defense of innocence _ Wisehart's confession. Wisehart's mental condition _ his propensity for blame-taking _ might explain how he could be innocent and yet confess. While counsel certainly suffered through several rough spots in employing this strategy, especially during voir dire and the examination of Dr. Joy, counsel's closing argument clearly, cogently and effectively employed Wisehart's mental condition to support his innocence defense.

    There are a lot of problems with this case. What happened here was after [Wisehart] confessed, [the State] said, oh, boy, we got somebody to confess. We don't have to go any farther. That's true. They didn't really go any farther according to their evidence. They said they had the guy that did it. They didn't even really consider [Wisehart's] mental condition as any kind of a factor bearing on why he would say something if he didn't mean it. And that's the reason why the insanity defense is in front of you. We're not trying to excuse what he did, because he didn't do it. What

we're trying to explain to you is why he said what he did. And there's ample evi dence to show why he made these ridiculous, self-destructive comments about himself and implicated himself in a crime he didn't do. . . .

(T.R. at 2276.) Trial counsel then proceeded to repeat various testimony tending to support such theory and then also discussed Wisehart's blame-taking character with the following comments:

    And then last . . . the acceptance of blame. Now is there a history of that in [Wise hart]? Yes, there is. How do we know there's a history of acceptance of blame in [Wisehart]? [Wisehart], in junior high school, according to Mr. Warmke . . . remem ber him, the dean of boys? . . . said he saw [Wisehart] several times. [Wisehart] would always admit to whatever he accused him of doing, whether he had done it or not. He said that. He said he knew for a fact that lots of times kids would put him up to things. But [Wisehart] wanted to be so accepted, he wanted so much to be a part of the group that he would sit there and take the blame for everybody, whether he did it or not. That's one example, and Mr. Warmke said that wasn't just one time. He remembered several instances of that. Then we go on to his behavior at Cross Roads. . . . While he was there, he exhibited that same behavior. He'd take the blame for the other kids, the kids he was close to. Somebody'd get in trouble, he'd say, I did it. Punish me for it. I'm the one who did it. So we have a history of this sort of behavior on his part.

(T.R. at 2283-84.)

    Trial counsel informed the jury that the defense of insanity was not filed in order to provide an excuse for Wisehart, but instead was filed in order to provide proof that Wisehart falsely con fessed to a crime he did not commit. We find such an approach well within the bounds of effective defense strategy.

    Our determination that there was a more than adequate strategic explanation for counsel's decision to argue both actual innocence and insanity to the jury makes it unnecessary to examine in great detail Wisehart's numerous specific claims of ineffective assistance of trial counsel related to this issue. However, we do elect to address several of them.

    First, Wisehart contends that, while it may have been sound strategy to argue that Wisehart had falsely confessed due to his mental condition, the law did not require counsel to file a notice of insanity or argue that his client was insane.See footnote 20 By doing so, Wisehart maintains, counsel's perfor mance was deficient (because he did not know insanity defense law) and prejudicial (because the jury had to deal with an inappropriately presented insanity claim). We might today conclude that a defendant would not have to file a notice of insanity and pursue an insanity defense in order to claim that he had falsely confessed due to mental illness. But this has been an unsettled area of Indiana law, at least until very recently. See McLain v. State, 678 N.E.2d 104, 105, 109 (Ind. 1997) (holding that a notice of insanity was not required to contest the voluntariness of defendant's actions), reh'g denied.; Barrett v. State, 675 N.E.2d 1112, 1117 (Ind. Ct. App. 1996) (in holding that evidence of battered woman's syndrome was admissible to negate defendant's mental state, the

court did not suggest that a notice of insanity need be filed to present such evidence), trans. denied. Given then-existing statutory and case law, defense counsel could well have expected vigorous resistance to any effort to place Wisehart's alleged mental illness before the jury without complying with the notice of insanity statute. See Badgley v. State, 226 Ind. 665, 676, 82 N.E.2d 841, 845 (1948); Taylor v. State, 181 Ind.App. 392, 394 n.2, 391 N.E.2d 1182, 1183 n.2 (1979). It was not deficient performance to proceed under the insanity notice statute.

    Second, Wisehart contends that trial counsel was ineffective for having confused the jury during voir dire by not articulating how Wisehart could maintain claims of actual innocence and insanity at the same time. During voir dire, a number of jurors frankly questioned how a defendant could claim both. For example, prospective juror Boyland indicated that he felt it was "kind of contradictory" for a defendant to maintain both insanity and actual innocence; that if he were to assert an insanity defense, "my firsthand thoughts would be that I would be admitting to the crime . . . any crime." (S.T.R. at 576; 577.) While there was undeniably some confusion on this score, we find that the issue was fully aired and that trial counsel took steps to exclude prospective jurors who expressed unwillingness to entertain the dual arguments.See footnote 21 We do not find that counsel's perfor mance on this issue during voir dire was deficient.

    Third, Wisehart faults trial counsel's opening argument. Trial counsel's opening statement was brief and direct. The opening argument simply stated that Wisehart was innocent and that the evidence would not show beyond a reasonable doubt that Wisehart committed the crime. Trial counsel made no reference to the insanity plea or the false confession theory. While in retrospect, it may appear that this would have been a good time to inform the jury of such theory, it would also have been logical for counsel to wait for the State to introduce the confession into evidence before attacking it.

    In any event, we have regularly held that the decision not to make an opening statement is a matter of trial strategy and will not support an ineffective assistance of counsel claim. See, e.g., Roche v. State, No. 45S00-9305-PD-588, 1997 WL 796189, at *7 (Ind. Dec. 31, 1997); Douglas v. State, 663 N.E.2d 1153, 1155 (Ind. 1996) (citing Nuckles v. State, 560 N.E.2d 660, 662 (Ind. 1990)); Miller v. State, 541 N.E.2d 260, 263 (Ind. 1989). Likewise, we hold that the content of an opening statement, absent some egregious blunder, is also a matter of strategy.

    Lastly, Wisehart claims that counsel was ineffective in failing to present sufficient evidence to support the false confession claim. We note that the argument here is not that counsel failed to present any evidence in this regard but only that counsel failed to present enough evidence. The following evidence was presented:

    1.    The house parents at Crossroads, a home for emotionally disturbed children where Wisehart had resided, offered the following testimony:

    Well, [Wisehart] has always kinda the defender of the underdog, I would say. We had several little kids that would do mischievous things, and [Wisehart] . . . and one little fellow in particular that [Wisehart] was just very, very fond of . . . and he would . . . if James got in any trouble and [Wisehart] would come and say, "Well, Mom, I was with him. I could've . . . I should've stopped him. It was partly my fault. I should've stepped in," or something. But . . . and he did that on several different occasions where three or four kids would get together and they'd pull some mischie vous prank and [Wisehart] would take the blame for it. "It was my idea. It was my idea." I'm not sure it always was, but that's what he would tell me. (T.R. at 1702.)

    I consider it kind of unselfish when he would give up some of his own free time to be given punishment for something that someone else really did. Especially the little guy. I keep referring to these littler kids. He was very protective over them. If they had done something and he didn't feel that they should get the punishment . . . I don't know . . . he would just say he did it, you know. (T.R. at 1762)

    2.    The dean of a school that Wisehart had attended testified that Wisehart would accept any form of discipline exercised by him even on the occasions when other children put him up to do some of the things. (T.R. at 1961.)

    3.    Dr. Joy, the defense's psychologist, testified that "[Wisehart] fabricates a lot of things. . . . I don't know that I could say specifically as to a confession, but he fabricates a lot of things and tells very elaborate stories that are not true." (T.R. at 1886.)

    We find that trial counsel was not deficient in failing to present sufficient evidence in support of his false confession theory.

    Wisehart advances a second claim concerning ineffective assistance of trial counsel with respect to his mental condition. He contends that it constituted deficient and prejudicial performance for counsel not to have presented evidence of Wisehart's mental condition as a mitigating circum stance during the penalty phase of the trial. Advanced as part of this claim is the assertion that trial counsel erroneously thought that having been unsuccessful in advancing his mental condition arguments in the guilt phase, they were no longer available in the penalty phase.

    At the penalty phase, all evidence from the guilt phase was incorporated by reference. In his closing argument, the prosecutor contended that by its guilt phase verdicts, the jury had rejected Wisehart's mental condition as a mitigating circumstance. In response, Wisehart's trial counsel pointed to the guilt phase evidence of Wisehart's mental condition arguing vigorously that it should be considered as a mitigating circumstance (emphasis added):

Each and every one of you people are going to have to make an individual choice of whether you can intentionally recommend someone die, and then we will be passing the burden on to Judge Newman and it will be his final choice to make the decision about whether Mark lives or dies. It's a very, very weighty decision we have here. We're talking about sitting down and thinking through whether we're going to kill someone, much the same as the State has been accusing Mark of doing. Did Mark sit down and rationally think through what he did in this case? Consider the evi dence. Mark has a long, long history of mental disturbance. There's no doubt about that. Now, the prosecutor says, well, that's not a mitigating factor. It is definitely a mitigating factor. Mark was born, raised in a family, consumed by all sorts of prob lems around him. He is a factor, not only of his genes, but his environment. Some where along the line, something short-circuited in this boy. Are we to condemn him because he is a freak of nature? Are we to condemn him because there's something

missing in his character that ought to be there? That there [is] something wrong with his brain? [sic]

(T.R. at 2409-10.) Later in his argument, trial counsel returned to this theme (emphasis added):

[The prosecutor says there are] no mitigating circumstances here. Remember all the evidence we had. We had witness after witness after witness for both the prosecutor and the State who testified about Mark's mental problems. Every last one of them did. Now, admittedly, you rejected it as a possible mitigating factor on his responsi bility for the crime, but the law allows you to consider that as to whether the sentence is proper. And for those of you who do not feel that your Christian beliefs are strong enough to consider that, consider the other. Consider whether Marks' mental condition was such that he did not commit this crime . . . or that he should not be executed because of this crime. And I think if you . . . if you look at all those factors, there's only one conclusion you can reach, that it is not proper to impose the death penalty in this case.

(T.R. at 1871-72 (ellipses in original).) We conclude that trial counsel's performance at the penalty phase was not deficient for failing to place Wisehart's mental condition before the jury as a mitigat ing circumstance.

    In addition to the claims of ineffective assistance of trial counsel related to the insanity-actual innocence defenses discussed in part II, supra, Wisehart lodges numerous additional complaints about trial counsel's guilt phase performance that he contends denied him the effective assistance of counsel. The post-conviction court found that Wisehart was not denied the effective assistance of counsel and we agree.

    As a general matter, Wisehart contends that trial counsel's lack of experience in defending a death penalty case and presenting an insanity defense was prejudicial to the defendant. Inexperience per se is not sufficient to make out a claim of ineffective assistance of counsel. See Meredith, 679 N.E.2d at 1312 (quoting Douglas, 663 N.E.2d at 1154) ("isolated poor strategy, inexperience, or bad tactics do not necessarily constitute ineffective assistance of counsel"). See also United States v. Cronic, 466 U.S. 648 (1984) (Supreme Court reversed a finding of ineffective assistance of counsel in a case where a young real estate lawyer who had never participated in a jury trial was appointed to represent a defendant charged with mail fraud). Here the post-conviction court found that lead counsel at trial had defended at least thirty-six felony cases, including murder and attempted murder cases, represented persons in involuntary mental health commitment proceedings, handled approximately ten criminal appeals, and attended a seminar on defending death penalty cases. The post-conviction court found that lead counsel had adequate training and experience to defend Wisehart. The post-conviction court found that co-counsel had defended only one felony case and had no experience or training in defending death penalty cases but that this lack of experience did not prejudice Wisehart's defense. We find no inherent ineffectiveness in trial counsel's experience or lack thereof.

    Defendant contends that trial counsel was ineffective during pre-trial proceedings for the following reasons: (1) failing to make several motions; (2) failing to raise the issue of Wisehart's competency; and (3) being confused about the mental health issues.

    Wisehart contends that trial counsel: (1) failed to articulate adequately his need for expert assistance; (2) waited until less than three weeks before trial to file a motion to suppress Wisehart's confession; (3) failed to assert in the motion to suppress that Wisehart was impermissibly coerced to confess and that he falsely confessed; and (4) failed to request a continuance after the motion to suppress was denied.

    First, Wisehart raised the denial of his motion for a private sociologist as error in his direct appeal, but we found none. Wisehart, 484 N.E.2d at 954. The issue is not available for relitigation here.

    Second, he makes no showing of how waiting until three weeks before trial to file this motion (which we held on direct appeal to have been properly denied, Wisehart, 484 N.E.2d at 954) was either deficient or prejudicial.

    Third, he alleges that trial counsel failed to assert that Wisehart was impermissibly coerced into confessing. Contrary to Wisehart's contention, we find that trial counsel made the following argument in support of what he styled a "Motion to Suppress the Involuntary Confession": "The statements sought to be suppressed were obtained as a result of psychological and mental coercion illegally directed against [Wisehart]." Moreover, during the hearing on this motion, trial counsel presented testimony of the psychiatrist which corroborated the defense theory that Wisehart was coerced into confessing. And while Wisehart alleges that counsel did not claim in the motion to suppress that Wisehart had confessed falsely or question the psychiatrists regarding the possibility of a false confession, counsel certainly elicited testimony regarding Wisehart's susceptibility to being easily influenced by others, suggesting that the confession was involuntary. We do not find counsel's performance to be deficient.

    Fourth, he suggests that trial counsel should have requested a continuance after the motion to suppress was denied. We do not find counsel's failure to request a continuance to be deficient. In fact, we see no reason why a continuance would have been necessary since counsel (based upon his performance during the suppression hearing) appeared to be prepared to present a false confes sion theory at trial if the confession was not suppressed.

    Wisehart next contends that trial counsel was ineffective for failing to contest the issue of Wisehart's competence. At Wisehart's competency hearing, Wisehart's counsel stipulated as to

Wisehart's competence to stand trial and advised the court that all the psychiatrists' reports indicated (and Wisehart himself believed) that Wisehart was competent to stand trial. The court accepted the stipulation and asked that the record show that all the psychiatrists who examined Wisehart reported that Wisehart was competent to stand trial.See footnote 22

    During the post-conviction hearing, Wisehart argued that circumstances indicated that he had not been competent, that trial counsel should not have stipulated to competency, and that trial counsel should have raised the issue of competency again when such circumstances became apparent. Wisehart presented two witnesses to support this argument. First, Wisehart's trial counsel testified during the post-conviction hearing that Wisehart was "not really" able to assist him in the defense, nor was Wisehart able to understand the seriousness of the proceedings "because of his mental problems."See footnote 23 (R. at 551; 562.) Second, Wisehart presented testimony of Dr. Ryan, a clinical psychologist, who met and interviewed Wisehart in April, 1993 (ten years after Wisehart had been convicted and sentenced). Based upon an hour clinical interview and four hours of psychological testing, Dr. Ryan concluded that his best educated guess was that "[Wisehart] was still unable to function effectively, which would severely, . . ., would severely interfere with his ability to help or even participate in [Wisehart's] own defense." (R. at 2008.)

    "The standard for deciding such competency is whether or not the defendant currently possesses the ability to consult rationally with counsel and factually comprehend the proceedings against him or her." Brewer v. State, 646 N.E.2d 1382, 1384 (Ind. 1995) (citing Mato v. State, 429 N.E.2d 945, 946 (Ind. 1982)). The pre-trial stipulation of trial counsel and the trial court's determi nation of competence were both based upon the conclusions of the three court-appointed psychia trists. In conflict is the equivocal post-conviction statement of trial counsel and the testimony of Dr. Ryan, defendant's own expert, based on an examination conducted ten years after the time of trial. Under these circumstances, the findings of the three psychiatrists are sufficient to support the conclusion that counsel's stipulation did not constitute deficient performance.

    Wisehart claims that trial counsel in his confusion hired a psychologist, rather than a psychia trist. However, the record reflects that trial counsel deliberately requested Dr. Joy (a psychologist) as the expert witness. We will not second-guess counsel's strategic decision, especially without a showing of prejudice.

    Wisehart asserts that the following actions during voir dire constitute ineffective assistance of counsel: (1) failing to provide the jury with an articulable defense theory; (2) failing to discover the jury's receptiveness to the penalty phase theory; and (3) failing to strike at least two jurors.

    First, Wisehart contends that trial counsel was ineffective during voir dire for failing to provide the jury a cogent defense theory. Our review of the record indicates otherwise. Trial counsel adequately informed the jury of the defense theory that Wisehart was innocent, that Wisehart pled "not guilty" and that a notice of insanity was filed in order to introduce evidence regarding Wisehart's mental condition. See part II, supra. Additionally, Wisehart argues that trial counsel was ineffective during voir dire because he did not introduce to the jury the substantive factual issues of the case. This does not constitute deficient performance. See Bannowsky v. State, 677 N.E.2d 1032, 1034 (Ind. 1997) (quoting Von Almen v. State, 496 N.E.2d 55, 59 (Ind. 1986)) ("Questions which seek to shape a favorable jury by deliberate exposure to the substantive issues in the case are improper."); Hopkins v. State, 429 N.E.2d 631, 635 (Ind. 1981) (disapproving use of "voir dire to implant in jurors' minds ideas about the substantive facts of the case being tried").See footnote 24

    Second, Wisehart contends that trial counsel failed to discover the jury's receptiveness to the penalty phase theory by not preparing them for any evidence to be offered at trial. We have held that it is permissible to use voir dire to "inquire into jurors' biases or tendencies to believe or disbelieve certain things about the nature of the crime itself or about the particular line of defense." Hopkins, 429 N.E.2d at 635. See Bannowsky, 677 N.E.2d at 1034 (quoting Von Almen, 496 N.E.2d at 59) ("jurors are to be examined to eliminate bias but not to condition them to be receptive to the ques tioner's position."). Our review of the record suggests that trial counsel on several occasions questioned the jurors regarding their opinions on (1) the death penalty, (2) the circumstances in

which the death penalty would be justified, (3) whether they could consider mitigating factors to prevent the imposition of the death penalty, and (4) whether insanity was a mitigating factor. To the extent counsel had a duty to discover the jury's receptiveness to the penalty phase theory, we are satisfied that these questions provided a reasonable basis for doing so.

    Finally, Wisehart claims that trial counsel was ineffective for failing to strike at least two jurors. Our review of the record indicates that during voir dire, trial counsel challenged several jurors who (1) were strongly in favor of the death penalty under all circumstances; or (2) had a difficult time accepting psychiatric testimony; or (3) expressed concern over accepting the two alternative defense theories. While we agree that trial counsel could have probed some of the jurors in more depth to discover their ability to be fair and impartial jurors, we do not find such failure to be deficient performance. See May v. State, 502 N.E.2d 96, 103 (Ind. 1986) (declining to find ineffective assistance of counsel when defendant simply stated that "[c]ounsel could have found a more favorably composed jury without stating any support for this contention, or for his allegation that this jury was unfairly composed"). See also Taylor v. State, 480 N.E.2d 924, 926 (Ind. 1985) (court stated that the decision of whether to strike panel members from the jury was a "judgment call on strategy that does not amount to ineffective assistance of counsel.").
    

    Wisehart contends that counsel was ineffective at trial for failing to (1) impeach a State's witness, (2) object to hearsay testimony, (3) object to the admission into evidence of mugshots, (4)

object to testimony referring to a polygraph test, and (5) object to lay witness testimony on insanity.

    Wisehart asserts that trial counsel should have impeached Officer Fancher, a police officer involved in investigating the crimes, with Fancher's prior inconsistent statements in order to under mine the officer's credibility. At trial, Fancher testified that Wisehart had confessed that "[the victim] wouldn't let [Wisehart] in and [Wisehart] had to kill her" (T.R. at 1279). However, at the suppression hearing Fancher testified that Wisehart had stated "I didn't mean to kill her" (T.R. at 604; 608.) While the two statements are somewhat different, they are by no means inconsistent with one another such that impeachment would have been beneficial. In fact, impeachment of Fancher under these circumstances would in no way have undermined his credibility. Instead, impeachment would have provided the jury with an additional incriminating statement, thereby elevating the potential (to Wisehart's detriment) for the jury to believe Wisehart's confession. The decision not to impeach was not deficient performance.

    Wisehart next contends that trial counsel should have objected to the testimony of Detective Tracy when he testified that one of the victim's neighbors recognized Wisehart from a photo array as being present at the apartment building a few days before the crime. Wisehart argues that trial counsel should have objected on the grounds of hearsay. Hearsay is an out of court statement

offered for the truth of the matter asserted. Ind.Evidence Rule 801(c). The State suggests that the testimony was offered for its inferential value of demonstrating that Wisehart was present in the apartment building on the day of the crime. Br. of Appellee at 16. If in fact this was the reason for eliciting this testimony, then it would have been inadmissible hearsay because it would have been offered for the truth of the matter asserted.

    Wisehart points us to our decision in Williams v. State, 544 N.E.2d 161 (Ind. 1989). In that case, a detective testified (apparently over objection) that, based on information he received from an unidentified informant, he included defendant's photo in a photo array to show to the victim. We found that such testimony "provided the jury with a basis for making inferences that the informant had knowledge that [defendant] committed the offense" without the defendant having an opportunity to test these inferences through cross-examination. Williams, 544 N.E.2d at 163. We reversed Williams's conviction.

    In Williams, the declarant of the hearsay statement was anonymous. In this case, the declarant was known. Counsel may have concluded that Wisehart was better off if the declarant was not called to testify. After all, the State might have called her had he objected and the objection been sustained. (In fact, the State did not call the declarant.) The decision not to object was not deficient performance.

    Wisehart also contends that trial counsel should have objected to the photo array on the grounds that a mug-shot was prejudicial. "Mug shots are not per se inadmissible." Andrews v. State, 536 N.E.2d 507, 509 (Ind. 1989). They are admissible if (1) they are not unduly prejudicial and (2) they have substantial independent probative value. Cason v. State, 672 N.E.2d 74, 75 (Ind. 1996) (citing Splunge v. State, 641 N.E.2d 628, 632 (Ind. 1994)); Andrews, 536 N.E.2d at 509. The State properly argues that Wisehart has failed to show that the photo array was a "mug shot" and that nothing in the record indicates that the photo array was ever referred to or characterized as a "mug shot." Furthermore, post-conviction counsel has failed to provide us with the photo array for review. Thus, we have no basis for finding deficient performance in trial counsel's failure to object to the admission of the photo array into evidence.

    A key State witness at trial was Gregory Scott Johnson. During defense counsel's direct examination of Johnson's mother, Alice Newman, she remarked on her son having taken a polygraph test.See footnote 25 Wisehart argues that this created an inference that Johnson passed the polygraph exam,

thereby bolstering Johnson's testimony. Wisehart further contends that it was deficient performance for trial counsel to have "elicited" this testimony from Newman. But as the dialog set forth in note 25, supra, indicates, Newman volunteered the information on the polygraph when answering an entirely unrelated question. As such, counsel's performance in this regard was not deficient (nor was his likely strategic decision not to seek a jury admonishment in order to avoid bringing attention to the remark, especially since the results of the exam were never disclosed).

    Wisehart contends that trial counsel should have objected when the State questioned several lay witnesses regarding Wisehart's ability to know the difference between right and wrong. He makes only a conclusory statement to the effect that such an objection would have been sustained. Consequently, he waives appellate review of this contention. Ind.Appellate Rule 8.3(A)(7). See Canaan v. State, 683 N.E.2d 227, 232 (Ind. 1997), reh'g denied; Clemens v. State, 610 N.E.2d 236, 244 (Ind. 1993) (appellate review waived where defendant failed to cite authority and failed to mention why counsel's failure to object was substandard performance or how he was prejudiced).

    Wisehart claims that trial counsel was ineffective in closing argument because he improperly vouched for Wisehart's innocence and then inadvertently requested that the jury not put Wisehart in a position where his life would be taken "for something he probably didn't do." Our review of the

record reveals that counsel was doing nothing more than zealously advocating his client's innocence. While counsel's phraseology might not have been the best, the thrust of his argument was clear and did not constitute deficient performance.

    Our opinion on direct appeal and our review of the record both indicate that trial counsel intended to pursue three lines of argument as to why the death penalty was inappropriate. First, relying on the evidence presented during the guilt phase, counsel planned to argue that death was inappropriate because of Wisehart's long history of mental problems. Second, relying on a criminol ogist and clergyman, counsel planned to argue that death was inappropriate because it was not a deterrent to crime and was the subject of religious opposition. Third, relying on the defense's psychologist and a police officer involved in the case, counsel planned to argue that death was inappropriate because other persons were involved in committing the crime.

    As discussed in our opinion on direct appeal, the court did not permit counsel to call any

witnesses in support of the second or third arguments. Counsel cannot be faulted for failing to present evidence on those two points. As to counsel's first argument, trial counsel presented testimony of multiple witnesses during the guilt phase as to Wisehart's history of mental problems in particular and difficult upbringing and history in general. This evidence admitted during the guilt phase was incorporated into the penalty phase for the jury's consideration. The trial court instructed the jury to consider all the evidence introduced at the trial stage together with new evidence pre sented during the penalty phase.

    As discussed at length in part II-C, supra, trial counsel emphasized this mitigating evidence in his closing argument to the jury during the penalty phase. We agree with the post-conviction court's findings that the presentation of additional witnesses at the penalty phase on the issue of Wisehart's mental condition would have been cumulative. Under the circumstances of this case, when mitigating evidence has already been presented, the failure of counsel to duplicate during the penalty phase the mitigating evidence presented to the jury during the guilt phase does not constitute deficient performance. See Schiro v. State, 533 N.E.2d 1201, 1206 (Ind. 1989) (no ineffective assistance of counsel where, because an insanity defense was raised, the defendant was able to present evidence, typically considered mitigating, during the guilt phase without reintroducing the same evidence during the penalty phase).See footnote 26

    In addition to the claims of ineffective assistance of counsel discussed in parts II, III, and IV, supra, Wisehart attacks as deficient certain aspects of counsel's performance during judicial sentenc ing.

    First, Wisehart maintains that trial counsel failed to present mitigating circumstances during the sentencing hearing which would warrant a sentence less than death. As we stated in part IV, supra, counsel had already presented mitigating evidence during the guilt phase and discussed it during the penalty phase. Presenting this evidence again would have been cumulative. We find no deficient performance.

    Second, Wisehart contends that trial counsel improperly conceded Wisehart's presence at the scene of the crime after vouching for his innocence during the penalty phase. During the sentencing hearing, counsel called the defense investigator as a witness. The witness testified that Wisehart admitted that he was present during the crime, but that he did not strike the victim. Wisehart alleges that this testimony is a concession by counsel that Wisehart was present during the crime. We find

no deficient performance. Wisehart already confessed to the crime, thereby admitting his presence at the scene of the crime, and had been convicted of committing it. Counsel appears to have called the investigator to suggest why Wisehart deserved a sentence less than death.See footnote 27

    Third, Wisehart argues that counsel erred by arguing for an illegal sentence based on additional uncharged burglaries. Again, we find no deficient performance. Counsel reminded the court that when Wisehart confessed to the murder, he also admitted committing several other burglaries. As a possible way to avoid imposition of death and still provide a severe sanction, counsel suggested that Wisehart could be sentenced for those uncharged burglaries, resulting in a sentence of 50 years which could be imposed consecutively to 60 years for the murder charge. While such an approach would have faced obvious practical problems, the argument clearly constitutes zealous advocacy, not ineffective assistance of counsel.

    In addition to the claims of ineffective assistance of trial counsel presented in parts II, III, IV, and V, supra, Wisehart also argues that he was denied the effective assistance of appellate counsel to which he was entitled. Just as with claims of ineffective assistance of trial counsel, we analyze claims of ineffective assistance of appellate counsel according to the two-part test announced in

Strickland, 466 U.S. at 668. See, e.g., Lowery, 640 N.E.2d at 1048 ("standard of review for a claim of ineffective assistance of appellate counsel is identical to the standard for trial counsel"), cert. denied, 116 S.Ct. 525 (1995). A petitioner claiming ineffective assistance of appellate counsel must show both deficient performance and resulting prejudice. Roche, 1997 WL 796189, at *3. The failure to establish either prong will cause the claim to fail. Id. And where the claim is that appellate counsel was ineffective for failing to claim on direct appeal the ineffective assistance of trial counsel, the petitioner must establish both deficient performance and resulting prejudice on the part of both trial counsel and appellate counsel. Id. Conversely, the failure to establish either prong with respect to either trial or appellate counsel will cause the entire claim to fail. Id.

    Wisehart contends that he was denied the effective assistance of appellate counsel because of counsel's failure to raise alleged error in numerous guilt and penalty phase jury instructions. Because we find no error in the giving of any of these instructions, we find that appellate counsel's performance was not deficient in this regard.

    Wisehart contends the guilt phase instructions erroneously permitted the jury to convict him

of Felony MurderSee footnote 28 and BurglarySee footnote 29 on less than unanimous findings of guilt on the respective underlying crimes. The jury instruction on murder charged the jury with determining whether Wisehart committed the murder while simultaneously committing or attempting to commit the crime of either Burglary or Robbery. Wisehart contends that based on the jury instruction, "it is reasonable to infer that some of the jurors could have convicted Wisehart of felony murder based on the burglary allegation while others convicted based on the robbery allegation."See footnote 30 Br. of Appellant at

109. However, the jury also found Wisehart guilty of separate counts of both Burglary and Robbery (and theft). Thus, there was clearly a unanimous finding of guilt of Felony Murder with respect to the underlying offenses of both Burglary and Robbery. (The same analysis applies to the Burglary count.)

    Wisehart contends the guilt phase instructions erroneously failed to advise the jury of a possible "not guilty by reason of insanity" verdict on each count. Wisehart did not raise this issue in the trial court, on direct appeal, or in the post-conviction court. A claim not advanced until appel lant's brief in an appeal from the denial of post-conviction relief is waived. Canaan, 683 N.E.2d at 235 (citing Howard v. State, 467 N.E.2d 1, 2 (Ind. 1984)).

    Wisehart contends the guilt phase instructions constituted an improper judicial opinion about the weight to be accorded the testimony of certain expert witnesses.See footnote 31 First, Wisehart challenges the

part of the instruction which stated that "the jury should not necessarily accept the ultimate conclu sions of the experts as to the defendant's legal sanity or insanity." We have held before that "[a] jury is not obligated to believe expert testimony on the issue of insanity." Gambill v. State, 675 N.E.2d 668, 672 (Ind. 1996) (citing Bonham v. State, 644 N.E.2d 1223, 1227 (Ind. 1994)), reh'g denied. Second, Wisehart asserts that it was improper for the instruction to direct the jury that medical insanity is not the same as legal insanity and that not every mental disease or defect excuses the commission of a crime. At least at the time of Wisehart's direct appeal, there was controlling authority that these statements were a correct statement of the law. See Montano v. State, 468 N.E.2d 1042, 1045 (Ind. 1984); Taylor v. State, 440 N.E.2d 1109, 1111 (Ind. 1982) ("The existence of mental disease or deficiency does not ipso facto render a defendant legally insane."). Finally, Wisehart challenges the instruction which stated that lay testimony on the issue of insanity was proper and that it could be credited over expert testimony. At least at the time of Wisehart's direct appeal, there was controlling authority that this instruction was a proper statement of the law. See Green v. State, 469 N.E.2d 1169, 1172 (Ind. 1984); Mayes v. State, 440 N.E.2d 678, 681 (Ind. 1982).

    Wisehart contends the guilt phase instructions erroneously instructed the jury as to accom

plice liability. Wisehart contends that these instructions were given without any credible evidence to support them. "An instruction is proper only if there is some evidence of probative value to support it." Dudley v. State, 480 N.E.2d 881, 903 (Ind. 1985), judgment vacated on other grounds by Dudley v. Duckworth, 854 F.2d 967 (7th Cir. 1988). During trial, Wisehart elicited testimony that it was a possibility that other people may have been involved in the crime.See footnote 32 We find such evidence to be sufficient as to support an instruction on aiding, inducing or causing an offense. And, of course, it is a major thrust of Wisehart's post-conviction claim that he had accomplices. See part I, supra.

    Wisehart contends the penalty phase instructions erroneously created a substantial possibility that the jury based its recommendation on improper aggravators. The argument here is that because several penalty phase instructions made reference to "aggravating circumstances" (in the plural) where only one was alleged, there was a substantial risk that the jury based its death penalty recom mendation upon multiple aggravating factors. While some instructions referred to aggravating circumstances in the plural, those instructions were recitations of general principles. The instruction charging the jury with what it should consider in making the death penalty recommendation referred

to the aggravating circumstance in the singular.See footnote 33 See Baird v. State, 604 N.E.2d 1170, 1180-81 (Ind. 1992), where we resolved the exact same issue in a similar manner.See footnote 34

    Wisehart contends the penalty phase instructions erroneously permitted the jury to consider information not introduced at trial.See footnote 35 Wisehart's argument is that the instruction's language advising

the jury that it could determine the law from "whatever may be [its] source of information," the jury was allowed to consider any evidence or information irrespective of whether the judge admitted it into evidence. While perhaps susceptible of Wisehart's reading, we believe the challenged language was understood to mean that each juror could utilize his or her background, experience, beliefs and convictions in exercising his or her responsibility to determine the law under art. I, § 19, of the Indiana Constitution. See Bivins v. State, 642 N.E.2d 928, 946-47 n.6 (Ind. 1994). In any event, we view this language as favorable to Wisehart and, in fact, have seen appellants in other capital cases challenge the trial court's refusal to employ it. See Fleenor v. State, 514 N.E.2d 80, 86 (Ind. 1987) (although a tendered instruction advising the jury to consider its background, experience, beliefs and convictions was rejected, another instruction was provided which conveyed the same basic message), cert. denied, 488 U.S. 872 (1988). But see Canaan v. State, 541 N.E.2d 894, 910- 11 (Ind. 1989) (a tendered instruction advising the jury to consider its background, experience, beliefs and convictions was rejected).

    Wisehart contends the penalty phase instructions erroneously misled the jury regarding the procedure for weighing the aggravating circumstances against the mitigating factors. First, he argues that because several instructions informed the jury that aggravating factors required proof beyond a reasonable doubt, the jury may have interpreted mitigating circumstances to require the same burden

of proof. We have previously rejected this argument.See footnote 36 See Roche, 1997 WL 796189, at *10 (citing Miller v. State, 623 N.E.2d 403, 409 (Ind. 1993)); Bivins, 642 N.E.2d at 946. Second, he argues that he was denied due process and due course of law because the trial court failed to instruct the jury that the determination of the existence of mitigating factors does not require unanimity. We have previously rejected this claim. See Roche, 1997 WL 796189, at *12 (citing Harrison v. State, 644 N.E.2d 1243, 1259 (Ind. 1995)). See also Bivins, 642 N.E.2d at 947. Thirdly, he argues that the trial court failed to instruct the jury that it could give weight to mental and emotional evidence that did not rise to the level of an insanity finding. We have previously found the trial court's instruction that the jury "can consider as a mitigating circumstance '[a]ny other circumstance appropriate for consideration'" to be sufficient in this regard. See Bivins, 642 N.E.2d at 947.

    Wisehart contends the penalty phase instructions erroneously instructed the jury on the range of possible penalties. At the time of his trial, Wisehart was serving a suspended ten year sentence for Arson. He argues that the trial court should have advised the jury regarding the possible execution of this sentence.See footnote 37 This claim is similar to a claim raised in another capital case, Johnson v. State,

584 N.E.2d 1092, 1101-02 (Ind. 1992). In Johnson, after the defendant was convicted of Felony Murder in the course of Burglary and Arson, the trial court advised the jury of the possible penalties for Murder. The defendant argued on appeal that it was error for the court not to have advised the jury of the possible penalty for Arson as well. We held that "it was not error to restrict this instruc tion to the more immediate potential consequences, i.e., those stemming from the verdict of guilty of murder." Id. at 1102. The argument in support of the exercise of the trial court's discretion is even stronger here where the arson conviction was unrelated to the crimes at issue.

    Wisehart contends the penalty phase instructions erroneously advised the jury that its verdict was a recommendation that did not bind the court.See footnote 38 Wisehart couches his argument in the terms of Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985), where the Supreme Court held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." However, to establish a Caldwell-type violation, "a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." Romano v. Oklahoma, 512 U.S. 1, 9 (1994) (citing Dugger v. Adams, 489 U.S. 401, 407 (1989)); see also Lowery, 640 N.E.2d at 1044. This Court previously has held that it is not uncon stitutional to instruct the jury that the ultimate sentencing responsibility rests with the trial judge,

Lowery, 640 N.E.2d at 1044, because such an instruction accurately reflects the requirements of Indiana law. An Indiana jury does not impose a sentence, but instead makes a sentencing recommen dation to the judge, who in turn decides what sentence to impose.

    Wisehart contends that he was denied the effective assistance of appellate counsel because of counsel's failure to argue on direct appeal that the Indiana death penalty statute is unconstitutional on its face and as applied. In support of this theory, Wisehart now raises several constitutional challenges for our consideration. This Court previously has disposed of these issues adverse to his position. Because the law does not support these claims, counsel was not ineffective for failing to raise them on direct appeal.
    

    Wisehart alleges that Indiana's death penalty statute is unconstitutional because it does not require an independent finding of probable cause prior to subjecting a defendant to capital proce dures. We recently rejected this claim in Matheney v. State, 688 N.E.2d 883, 904 (Ind. 1997).
    

    Wisehart challenges several aspects of the system of aggravating and mitigating factors

contained in the death penalty statute.

    First, he argues that the felony murder aggravatorSee footnote 39 is unconstitutionally vague and overbroad and fails to meaningfully narrow the class of murderers eligible for the death penalty. This claim was also disposed of adversely to Wisehart's position in Matheney. Id.

    Second, he argues that the felony murder aggravator violates the double jeopardy clause and other provisions of the United States Constitution by allowing an individual to be convicted of felony murder and then allowing the State to use the predicate felony as the basis for the death penalty. We reject this argument. We are unaware of any _ and Wisehart points us to no _ principle of double jeopardy jurisprudence that precludes the use of a felony conviction as an aggravating circumstance to support the imposition of a particular criminal sanction.

    Third, he argues that Ind. Code § 35-50-2-9(b) is unconstitutional because it fails to provide that the sentencer may consider only charged aggravating circumstances in support of a death penalty recommendation. We recently decided this issue adverse to Wisehart's position. Matheney, 688 N.E.2d at 905.

    Fourth, he argues that Ind. Code § 35-50-2-9(c) is unconstitutional because it does not require the trier of fact to consider all proffered mitigating evidence. The permissive language of the preamble of this subsection ("[t]he mitigating circumstances that may be considered under this

section") and of the "catch-all" mitigator ("[a]ny other circumstances appropriate for consider ation")See footnote 40 does not render optional consideration by the jury of relevant proffered mitigating evidence. Matheney, 688 N.E.2d at 907.

    Fifth, he argues that Ind. Code §§ 35-50-2-9(c)(2), (4), (5), and (6) are unconstitutionally vague and preclude the consideration of relevant mitigating evidence. The catch-all mitigator ("[a]ny other circumstances appropriate for consideration") properly allows the jury to consider all relevant mitigating evidence presented to it. See Bivins, 642 N.E.2d at 947.

    Sixth, he argues that Ind. Code § 35-50-2-9(d) fails to limit the jury's consideration of guilt phase evidence to that which is relevant to charged aggravation and to mitigation, on the theory that this permits the jury to consider improper aggravating circumstances. This Court has rejected this claim. Woods v. State, 547 N.E.2d 772, 794 (Ind. 1989), on reh'g, 557 N.E.2d 1325 (Ind. 1990), cert. denied 501 U.S. 1259 (1991).

    Seventh, we also reject Wisehart's unsupported claim that the statute permits the jury to consider the absence of mitigating evidence as an aggravating circumstance. See Matheney, 688 N.E.2d at 902; Bivins, 642 N.E.2d at 947

    Eighth, Wisehart argues that Ind. Code § 35-50-2-9(c) unconstitutionally fails to require the jury be instructed on the definition of both mitigation and "any other circumstances appropriate for

consideration" and also on why the law requires consideration of mitigating circumstances. The terms "mitigation" and "any other circumstances appropriate for consideration" are not beyond the comprehension of the average lay juror, contrary to Wisehart's contention. See Matheney, 688 N.E.2d at 907. In any event, the trial court adequately instructed the jury as to the meaning of those terms.See footnote 41

    Ninth, he argues that the absence of prior criminal history mitigator is unconstitutionally vague. We recently rejected this claim. Wrinkles v. State, No. 82S00-9408-PD-741, 1998 WL 789, at *12-13 (Ind. Jan. 2, 1998). See also Proffitt v. Florida, 428 U.S. 242, 257 (1976), reh'g denied, 429 U.S. 875 (1976).

    Wisehart also attacks several aspects of the balancing process in which the jury engages to reach its sentencing recommendation.

    First, he argues that the jury recommendation provisions of Ind. Code § 35-50-2-9See footnote 42 are unconstitutional because they fail to require the jury to find unanimously the existence of charged

aggravating factors. We have previously held that the jury may recommend the death penalty only if it unanimously finds beyond a reasonable doubt the existence of at least one charged aggravator. Bivins, 642 N.E.2d at 947; Fleenor, 514 N.E.2d at 91 (citing Williams v. State, 430 N.E.2d 759, 765 (Ind. 1982)).

    Second, he argues that the jury recommendation provisions of Ind. Code §§ 35-50-2-9 are unconstitutional because they fail to require the State to prove beyond a reasonable doubt that the aggravators outweigh the mitigators. We rejected this argument in Bivins, stating that "[t]he determination of the weight to be accorded the aggravating and mitigating circumstances is not a 'fact' which must be proved beyond a reasonable doubt, but is a balancing process." Bivins, 642 N.E.2d at 946 (citing Daniels v. State, 453 N.E.2d 160, 171 (Ind. 1983), vacated on other grounds, 491 U.S. 902 (1989)); see Miller, 623 N.E.2d at 409.

    Third, he contends that the jury recommendation provisions of Ind. Code § 35-50-2-9 are unconstitutional because they provide for a mandatory death penalty upon a finding of certain facts. This Court previously addressed and rejected this claim. Burris v. State, 642 N.E.2d 961, 968 (Ind. 1994), cert. denied 116 S.Ct. 319 (1995); Bivins, 642 N.E.2d at 946 (jury may consider mercy and is not bound to convict).

    Fourth, he argues that the jury recommendation provisions of Ind. Code § 35-50-2-9 unconstitutionally fail to require the sentencing jury to provide written findings or verdict forms and fail to require the sentencing court to make specific written findings. We previously have disposed

of this argument contrary to Wisehart's position. Harrison, 644 N.E.2d at 1259 n.28; Burris v. State, 465 N.E.2d 171, 190 (Ind. 1984), cert. denied, 469 U.S. 1132 (1985).

    Fifth, he argues that Ind. Code § 35-50-2-9(h) (1982), the automatic review provision, is unconstitutional because it does not provide for meaningful appellate review of a capital defendant's conviction and sentence. Wisehart raised this issue, and this Court rejected it, in his direct appeal. See Wisehart, 484 N.E.2d at 958-59.

    Wisehart argues that he was denied the effective assistance of appellate counsel when counsel failed to challenge on appeal the trial court's denial of trial counsel's motion to excuse two prospec tive jurors for cause during voir dire. Wisehart contends that the motions should have been granted because, in his view, the first of the two jurors was predisposed to sentence him to death and the second was unwilling to indulge him the presumption of innocence because of his invocation of the insanity defense. "The grant or denial of a challenge to a juror is within the discretion of the trial court," and the decision will be sustained unless "illogical or arbitrary." Shane v. State, 615 N.E.2d 425, 426 (Ind. 1993); Baird, 604 N.E.2d at 1186; Jackson v. State, 597 N.E.2d 950, 960 (Ind. 1992). We do not find the trial court's denial of the challenge for cause to be illogical or arbitrary.
    During voir dire, prospective juror Wiand stated that she believed that in most circumstances,

a person found guilty beyond a reasonable doubt of taking someone's life should be put to death. See footnote 43 This juror said that she could be fair and impartial as to the issue of defendant's guilt and that she would follow the court's instructions on various matters. Trial counsel (who also served as appellate counsel) moved to have this juror excused for cause but the motion was overruled.

    Later during voir dire, prospective juror Boyland indicated that he felt it was "kind of contradictory" for a defendant to maintain both insanity and actual innocence; that if he were to assert an insanity defense, "my firsthand thoughts would be that I would be admitting to the crime . . . any crime. That's just my firsthand thoughts."See footnote 44 (S.T.R. at 576; 577.) This juror also said that he would think of the defendant as innocent until he heard all the evidence and that he would be particularly cautious in deciding guilt or innocence knowing that the death penalty was an issue in the case. Trial counsel (who also served as appellate counsel) moved to have this juror excused for cause but the motion was overruled.

    We do not think appellate counsel's performance in failing to challenge the trial court's rulings on appeal was deficient. The first juror did not say that she would automatically vote for the death penalty and did say that she would follow the court's instructions. The second juror did not

say that he would not employ the presumption of innocence and did say that he would be particularly cautious in deciding guilt because the death penalty was being sought. When the challenges for cause were rejected, trial counsel did not use peremptory challenges to strike either of these jurors despite having such challenges available.See footnote 45 Wisehart does not contend that the failure so to challenge constituted ineffective assistance of counsel. As trial counsel, appellate counsel was in as good a position as anyone to make a judgment as to whether their presence on the jury denied his client a fair trial. And courts on appeal have regularly found no trial court error under similar circumstances. See Shane, 615 N.E.2d at 427; Jackson, 597 N.E.2d at 961; Smith v. State, 432 N.E.2d 1363, 1368 (Ind. 1982).