ATTORNEY FOR APPELLANT
I. Marshall Pinkus
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
SUPREME COURT OF INDIANA
JASON WENTZ, )APPEAL FROM THE VANDERBURGH CIRCUIT COURT
Appellant (Defendant/ )
Petitioner Below), )
v. ) Indiana Supreme Court
) Cause No. 82S00-9804-CR-238
STATE OF INDIANA, )
Appellee (Plaintiff/ )
Respondent Below). )
The Honorable Richard Young, Judge
The Honorable Carl A. Heldt, Judge
Cause No. 82C01-9607-CF-718
ON DIRECT APPEAL
AND ON PETITION FOR POSTCONVICTION RELIEF
April 15, 2002
Jason Wentz was convicted of felony murder, kidnapping, burglary, robbery, residential entry, and
two counts of auto theft and sentenced to seventy-nine and one-half years imprisonment.
He raises six issues for review, which we restate as five.
He contends: (1) the trial court erred by telling the jury its understanding
of the case at the beginning of jury selection; (2) the trial court
erred by denying his motion for a change of venue; (3) the trial
court erred by overruling his motion to exclude certain evidence; (4) the trial
court erred by imposing consecutive sentences; and (5) his trial counsel was ineffective.
We affirm the judgment of the trial court and the denial of
postconviction relief in all respects except for Wentzs sentencing. We vacate Wentzs
sentence for kidnapping and remand with instructions to impose concurrent sentences on all
Factual and Procedural Background
At about 3 a.m. on July 26, 1996, Jason Wentz and Joseph Henson
abducted Donna Heseman as she walked through the parking lot of the Bristol-Myers
facility in Evansville where she worked. Henson forced Heseman into her car
with a shotgun while Wentz waited in the car the pair had driven
from Paris, Illinois. At Hensons order, Heseman began driving her car with
Wentz following when Henson shot Heseman and caused the car to crash through
an entrance gate at the facility. Henson abandoned Hesemans car, jumped in
with Wentz, and the two sped away.
The pair quickly abandoned their car and soon came upon Nelson Reynolds trailer,
where Stacy Durham and Chris Freeman were sleeping. Henson and Wentz entered,
demanded the keys to Reynolds truck, and left in that vehicle. Later
that morning, the two unsuccessfully attempted to gain entry to the residence of
Kathryn Kuester, but managed to steal Gregory Epleys car from in front of
his home. That car was later found abandoned in a bean field.
Eventually the pair broke into the empty residence of Orville Childers.
When Childers arrived home, the intruders demanded the keys to his truck and
sped off again. The two were finally apprehended when they crashed Childers
truck into a sheriffs car.
Police recovered evidence from Childers residence and from the various vehicles Henson and
Wentz had occupied that day. Included among these items were the shotgun
used to kill Heseman, a sock cap containing hair, several gloves, a police
scanner, shotgun shells, camouflage sandals, gloves, and a black BB gun in a
duffel bag. Henson was sentenced to a total of 100 years in
a trial that preceded Wentzs. See Henson v. State, 707 N.E.2d 792
Wentzs trial resulted in convictions of felony murder, kidnapping as a Class A
felony, burglary as a Class B felony, robbery as a Class B felony,
residential entry as a Class D felony, and two counts of auto theft
as Class D felonies. The trial court sentenced him to seventy-nine and
one-half years imprisonment. Pursuant to Davis v. State, 267 Ind. 152, 368
N.E.2d 1149 (1977), this Court stayed his direct appeal pending a hearing on
postconviction relief. In this opinion, we address the issues Wentz raises on
direct appeal, as well as his appeal of the denial of his petition
for postconviction relief.
I. Trial Courts Comments to Jury
Wentz contends the trial court erred when it told the jury venire its
understanding of the case at the onset of voir dire. In the
course of addressing the prospective jurors, the trial court made the following statement:
The theory of the caseat least my understanding of the theory of the
case is that the State has alleged that Mr. Wentz was present at
the night of the alleged homicide and participated in the abduction of the
victim and the taking of the car. I do not believe the
State is alleging that Mr. Wentz pulled the trigger here. But what
theyre saying is that he participated in it. And what that is
called is Felony Murder. Okay? If someone is participating in a
felony and a murder results, then the State can actually charge a murder.
All right? Now, what Mr. Wentz is saying is that he
was present at the scene but he didnt know any of this was
going to happen. Okay? So, thats basically the framework of the
case. And, as jurors, it would be your job then to determine
what the participation of Mr. Wentz was in this case and your job
to determine whether or not the State of Indiana has proved its theory
beyond a reasonable doubt before you can vote for conviction.
Wentz contends that this discourse was the equivalent of the trial judges taking
the stand as a witness, placing Wentz at the scene of the murder,
and telling the venire that Wentz participated in the crime. Wentz claims
the trial courts action denied him his right to confront witnesses under the
Sixth Amendment to the United States Constitution
See footnote and Article I, Section 13 of
the Indiana Constitution.See footnote Wentz also argues that the trial courts statement forced
him to testify and explain his presence at the murder scene, which violated
the protection against self-incrimination afforded by the Fifth Amendment to the United States
Constitution.See footnote Although Wentz did not object to the trial courts statement, he
contends the trial court committed fundamental error reviewable without the need to preserve
the error. For the fundamental error doctrine to apply, however, we must
find the alleged error so prejudiced the defendants rights as to make a
fair trial impossible.
Corcoran v. State, 739 N.E.2d 649, 655 (Ind. 2000).
We agree with the general proposition Wentz puts forth: trial judges should refrain
from commenting on what they believe the defendant will or will not argue
at trial. Although a trial judge has broad discretionary power to regulate
the form and substance of voir dire, he or she also has a
concurrent duty to remain impartial and to refrain from making unnecessary comments or
remarks. Williams v. State, 555 N.E.2d 133, 137 (Ind. 1990). Trial
judges should exercise care to avoid an indirect expression of their opinion to
the jury. Jurors respect for the judge can lead them to accord
undue significance to their reading of the judges intimations, whether or not any
are intended. Kennedy v. State, 258 Ind. 211, 226, 280 N.E.2d 611,
620-21 (1972). The judges anticipation of the defense strategy is also a
concern because the trial strategy of a criminal defendant may change at a
moments notice. We understand the trial courts reference to what the defendant
is saying as predicting trial counsels argument, not the defendants testimony. Nevertheless,
neither the decision to testify nor the defenses contentions should be influenced or
painted into a corner by the courts predictions.
Although we agree with these points Wentz raises, we do not agree that
the judges comments require reversal here. At trial, Wentz argued that, although
he was at the scene of the murder, Hensons actions took him by
surprise. Further, although Wentz stated at his postconviction relief hearing that he
felt compelled to testify, it was because of his attorneys advice that it
was his only defense, not because of any action of the trial judge.
Although the trial courts comments were unnecessary, they ultimately were essentially accurate,
and there is no indication that they so prejudiced Wentzs rights as to
make a fair trial impossible. There was no fundamental error; therefore, Wentzs
claim as to this issue fails.
II. Change of Venue
The tremendous amount of pre-trial publicitydue in large part to Hensons earlier trialled
to Wentzs motion for change of venue from Vanderburgh County on August 7,
1996. Three hearings were held on the motion, with the final one
taking place on September 7, 1997. At the conclusion of the hearings,
the trial court denied Wentzs motion, but asked the parties to strike from
a list of three other counties to select an alternate venue if a
panel from Vanderburgh County could not be seated. Wentz concedes, however, that
his trial counsel did not respond to the judges request. Although such
a failure is grounds for waiver, cf. McDaniel v. State, 268 Ind. 380,
382, 375 N.E.2d 228, 230 (1978), Wentz claims the trial court should have
ordered a change of venue sua sponte because of the saturation media coverage.
We address this issue primarily because it is recast in Part V
as an ineffective assistance of counsel claim.
This Court reviews a trial courts denial of a motion for a change
of venue for an abuse of discretion. Specht v. State, 734 N.E.2d
239, 241 (Ind. 2000). To prevail on this claim, Wentz must demonstrate
(1) prejudicial pretrial publicity and (2) the inability of the jurors to render
an impartial verdict. Id. Although Wentz demonstrated the extensive pretrial coverage
of this matter in Vanderburgh County, [t]hat potential jurors were exposed to press
coverage does not satisfy this test. Id. Wentz must also prove
the jurors were unable to disregard preconceived notions and render a verdict based
on the evidence. Id. At the onset of voir dire, the
trial court questioned the prospective jurors about their prior knowledge of the case.
As far as this Court can tell, nearly every jurorif not allresponded
that he or she had heard something about the case. However, the
trial court went to great lengths to question the prospective jurors, and excused
those who, in its judgment, could not render an impartial verdict. Further,
Wentz was afforded ten peremptory juror strikes but used only two, and he
fails to point us to anything, other than his speculation, that remotely suggests
the seated jurors did not render an impartial verdict based upon the evidence.
Wentz has not established that the trial court abused its discretion in
denying his motion for a change of venue.
III. Exclusion of Hair Evidence
Wentz moved to exclude the testimony of State witness Susan Laine. During
the hearing on Wentzs motion, Laine testified that she compared hair found in
a sock cap left at the crime scene to Wentzs, and that the
hair was sufficiently similar to be of possible common origin with Jason Wentz.
Wentz argued that the prejudicial effect of Laines testimony substantially outweighed its
probative value, violating Indiana Evidence Rule 403. However, his motion was denied
and his objection during Laines testimony was overruled. On appeal, Wentz again
argues that Laines testimony violated Rule 403. In addition, Wentz argues on
appeal that (1) Laine was never qualified as an expert and (2) the
procedures she employed were not scientifically reliable, violations of Evidence Rule 702.
This Court will reverse a trial courts Rule 403 determination only when there
is an abuse of discretion. Wheeler v. State, 749 N.E.2d 1111, 1114
(Ind. 2001). Wentz contends that, because Laine could not say with certainty
that the hair from the sock cap matched Wentzs, Laines testimony was so
unreliable and speculative that it was prejudicial to allow its introduction. This
Court has already held that trial courts are generally within their discretion to
permit hair comparison analysis. McGrew v. State, 682 N.E.2d 1289, 1292 (Ind.
1997). Wentz offers nothing specific to distinguish Laines testimony from that which
we found admissible in McGrew. The testimony was that the hair sample
was consistent with Wentzs, not that it was a conclusive match. The
remedy for this is cross-examination, not exclusion. The admission of this evidence
under Rule 403 did not constitute an abuse of discretion.
Wentz raises his Rule 702 arguments for the first time on appeal.
This is a good example of the reason for the requirement of objection
at trial. Because no Rule 702 objection was raised, there was no
need or opportunity to cure any flaw in the foundation for Laines testimony.
Therefore, these arguments are waived. Brown v. State, 728 N.E.2d 876,
878 (Ind. 2000) (A party may not object on one ground at trial
and raise a different ground on appeal.).
Wentz was found guilty of felony murder,
See footnote kidnapping as a Class A felony,
burglary as a Class B felony, two counts of auto theft as Class
D felonies, residential entry as a Class D felony, and robbery as a
Class B felony. When Wentz first appeared before the trial court for
sentencing, the court found the aggravating and mitigating factors balance out in this
situation and imposed a sentence of 55 years for the felony murder conviction,
30 years for kidnapping, 10 years for burglary, 18 months for each auto
theft, 18 months for residential entry, and 10 years for robbery. The
court then ordered that the sentences for each count should run concurrently, except
for the felony murder and kidnapping, which the court determined should run consecutive
to each other. Wentz was sentenced to a total of 85 years.
After the sentence was announced, the State advised the court that, as the
prosecutor understood the law, consecutive sentences for felony murder and kidnapping could not
be imposed because the murder conviction was predicated on kidnapping as the underlying
felony. The trial court disagreed and concluded the sentencing hearing. Later
the same day, however, the court called the parties back for a second
sentencing hearing and informed them that it had made a mistake as to
the consecutive sentences for felony murder and kidnapping. Again, the court found
the aggravating and mitigating factors balanced out and stated that the standard term
on each count was warranted. However, the court then imposed consecutive sentences
for the burglary, robbery, residential entry and two auto theft counts, ordering that
they run consecutive to the felony murder and kidnapping counts and consecutive to
each other. Wentz was then re-sentenced to seventy-nine and one-half years.
Wentz argues that this imposition of consecutive sentences was also inappropriate. We
Indiana Code section 35-50-1-2 permits trial courts to determine whether terms of imprisonment
shall be served concurrently or consecutively by considering aggravating and mitigating circumstances.
However, when the trial court finds those circumstances in balance, there is no
basis on which to impose consecutive terms.
Marcum v. State, 725 N.E.2d
852, 864 (Ind. 2000). As in Marcum, the imposition of consecutive sentences
here, where the trial court twice stated the mitigating and aggravating factors were
in balance, was inappropriate. On this point, we remand to the trial
court with instructions to impose concurrent sentences for all counts.
We further note that the trial court entered sentences for both felony murder
and the kidnapping which was the felony supporting the felony murder conviction.
This is impermissible under both state and federal double jeopardy rules. It
amounts to sentencing for a crime and its lesser-included offense. Griffin v.
State, 717 N.E.2d 73, 80-81 (Ind. 1999); Richardson v. State, 717 N.E.2d 32,
52 n.45 (Ind. 1999). This issue was not raised at sentencing, nor
was it raised by Wentzs appellate counsel. However, we address this problem
sua sponte and remand with instructions to vacate Wentzs sentence for kidnapping.
Cf. Jones v. State, 689 N.E.2d 722, 725 (Ind. 1997).
V. Ineffective Assistance of Counsel
Wentzs final two arguments support a claim of ineffective assistance of trial counsel
raised in the postconviction proceeding.
See footnote Wentz contends his trial counsel was ineffective
in the following respects: (1) counsel failed to object to the trial courts
comments to the venire regarding its theory of the case; (2) counsel inadequately
attempted to change venue; (3) counsel failed to object to witness Susan Laines
qualifications as an expert; (4) counsel denied Wentz his right not to testify;
(5) counsel allowed the State to attack Wentzs credibility; and (6) counsel failed
to represent Wentz adequately during sentencing.
This Court reviews claims of ineffective assistance of counsel under the two components
set forth in
Strickland v. Washington, 466 U.S. 668 (1984). First, the
defendant must show that counsels performance was deficient. Id. at 687.
This requires a showing that counsels representation fell below an objective standard of
reasonableness, id. at 688, and that the errors were so serious that they
resulted in a denial of the right to counsel guaranteed the defendant by
the Sixth Amendment, id. at 687. Second, the defendant must show that
the deficient performance prejudiced the defendant. Id. To establish prejudice, a
defendant must show that there is a reasonably probability that, but for counsels
unprofessional errors, the result of the proceeding would have been different. Id.
at 694. A reasonable probability is a probability sufficient to undermine confidence
in the outcome. Id.
A. Claims that Fail to Demonstrate Prejudice
This Court has stated that [i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . .
that course should be followed. Williams v. State, 706 N.E.2d 149, 154
(Ind. 1999) (quoting Strickland, 466 U.S. at 697). Several of Wentzs claims
fail this prong of Strickland.
1. Trial Courts Comments to Venire
We agree with Wentz that his counsel should have objected to the trial
courts comments reporting what Wentz would argue at trial, although we doubt that
this instance on its own amounts to the deficient performance necessary to satisfy
Strickland. In any event, as explained in Part I, Wentz has demonstrated
no prejudice from the trial courts comments. Therefore, this claim fails.
2. Change of Venue
Wentz has a tenable argument that his counsel performed deficiently by failing to
submit a strike to one of the alternate counties listed by the trial
court. McDaniel v. State, 268 Ind. 380, 382, 375 N.E.2d 228, 230
(1978) (failure to strike from list of counties submitted waives right to change
of venue). However, as discussed in Part II, Wentz does not point
to anything suggesting the jurors failed to render an impartial verdict, or that
the result would have been different had the trial taken place in another
county. Therefore, Wentz has not demonstrated any prejudice as to this claim.
3. Failure to Object to Experts Qualifications
Laine testified that she was employed by the Indiana State Police as a
Forensic Serologist and Hair Analyst, that she held an associate degree and a
bachelor of science degree, that she attended an eighteen-week State Police training program
for hair analysis, that she had passed the required proficiency tests, that she
had attended the FBI Academy of Hairs and Fibers, and that she belonged
to the Midwestern Association of Forensic Scientists. Although the question of Laines
qualification was never presented directly to the trial court, the court was within
its discretion to conclude that Laine was qualified to provide expert testimony.
There was no violation of Indiana Evidence Rule 702. Had Wentzs counsel
objected to her qualifications, the result would have been the same. Thus,
Wentz fails to demonstrate either substandard performance or prejudice from his counsels failure
to object. Cf. Willsey v. State, 698 N.E.2d 784, 794 (Ind. 1998)
(When a claim of ineffective assistance of counsel is based on counsels failure
to object, the defendant must show that a proper objection would have been
4. Inadequate Representation at Sentencing
Wentzs strongest claim is that his counsel inadequately represented him at sentencing.
Indeed, at the initial sentencing it was the prosecutor, not Wentzs counsel, who
first expressed concern regarding the consecutive sentences, although Wentzs counsel did object to
the consecutive sentences imposed at the second hearing. Additionally, his counsel raised
no objection to the imposition of sentences for both felony murder and kidnapping,
the underlying felony. In Part IV, we address and correct the sentencing
errors. The record in this case supports a presumptive sentence for murder.
Therefore, there remains no prejudicial effect from any deficient representation at sentencing.
B. Claims that Fail to Demonstrate Deficient Representation
1. Wentzs Decision to Testify
Counsel is afforded considerable discretion in choosing strategy and tactics, and we will
accord those decisions deference. Strickland, 466 U.S. at 689. A strong
presumption arises that counsel rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment. Id. at 690. Even the
finest, most experienced criminal defense attorneys may not agree on the ideal strategy
or the most effective way to represent a client. Id. at 689.
Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not
necessarily render representation ineffective. Timberlake v. State, 753 N.E.2d 591, 603 (Ind.
Wentzs counsel made a strategic call that it would be in Wentzs best
interest to testify and explain his limited role in this series of crimes.
Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998) (The determination of
whether or not a defendant should testify is a matter of trial strategy.).
Further, although Wentz now contends that he should not have taken the
stand, he did so freely. We cannot say it was unreasonable strategy
to have Wentz testify in an attempt to distinguish himself from Henson.
2. Attacks on Wentzs Credibility
On redirect examination, the following exchange took place between Wentz and his counsel:
Q. Now, at the time you made the statement at the police station, after
the wreck and after these incidents happened, did you have a lawyer?
A. No, I didnt have one.
Q. Were you sworn under oath when you were giving that statement to police?
A. No, I wasnt.
Q. Did you answer all their questions?
A. I believe so, until such time as . . .
Q. Well, did you answer all their questions?
This prompted the following questions from the State on re-cross examination:
Q. Mr. Wentz, Mr. Davis just asked you if you answered all the polices
questions and you said you did; isnt that right?
Q. But, in fact, you didnt; did you?
A. Uh, I did until the point when my dad advised me that
we should go ahead and get a lawyer.
Q. Okay. So, the police were questioning you about this crime and, after
they began questioning you, you said on the advice of your father, I
dont want to answer anymore questions?
A. At that time.
Wentz contends that the States questions concerning his silence following the administration of
Miranda warnings violated Doyle v. Ohio, 426 U.S. 610 (1976), and that his
counsels failure to object to that line of questioning constituted ineffective assistance of
In Doyle, the United States Supreme Court held that using a defendants post-arrest
silence to impeach an exculpatory story told for the first time at trial
violated the defendants due process rights. However, as this Court explained in
Vitek v. State, 750 N.E.2d 346, 350 (Ind. 2001), [a]lthough evidence of a
defendants post-Miranda silence is generally not admissible, the defendant may open the door
to its admission. One example of that opening is when a defendant
testifies on direct examination that he cooperated fully with police. Id. at
351; accord United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975).
That is exactly what Wentz attempted to do on redirect examination here, when
he testified that he answered all of the polices questions. Therefore, there
was no Doyle violation. Because there was no Doyle violation, there was
nothing to which Wentzs counsel could object, and therefore no ineffective assistance.
C. Waived Claims
We note that Wentz also presents a blanket claim of inadequate preparation to
support his ineffective assistance of counsel argument. However, except for the contentions
addressed above, Wentz never explains why the other instances of inadequate preparation he
cites satisfy either prong of Strickland. Specifically, Wentz does not explain how
his counsels case preparationadequate or notresulted in prejudice to the outcome of his
case. At no point does he make a cogent argument in support
of a reasonable probability that, but for counsels errors, the result of his
trial would have been different. Therefore, he has waived appellate review of
this claim. Ind. App. R. 46(A)(8); Dye v. State, 717 N.E.2d 5,
13 (Ind. 1999).
Wentz also contends his counsel was ineffective by failing to make timely objections,
allowing the State to ask leading questions, and allowing the State to use
exhibits in opening argument and during trial that had not been admitted into
evidence. However, Wentz cites the entirety of the record to support these
contentions and fails to make any argument as to why these instances constituted
deficient representation or how they were prejudicial to the outcome of his case.
Therefore, appellate review of these claims is also waived. Id.
Wentz contends that his trial counsel elicited damaging testimony from him as well
as other defense witnesses. However, Wentz fails to explain why the cited
portions of the elicited testimony were damaging. We presume he means that
the testimony given, primarily by him and his father, helped establish the fact
that Wentz owned a shotgun and BB gun. However, these facts were
given in the context of an attempt to establish that Wentz used them
for hunting and camping purposes, and that Wentzs plan when he left home
on July 25 was to go camping, not to commit murder. Wentz
also argues that his testimony established that he committed crimes. However, the
cited portions of testimony, though establishing Wentzs role in the commission of some
crimes, are largely explanations attempting to limit his role compared to Hensons.
In any event, the judgment to, in effect, concede responsibility for lesser offenses
in an effort to avoid a murder conviction is not per se deficient
Finally, Wentz claims that, during a break in his cross-examination by the State,
his counsel told him to change his prior testimony as to when he
saw the shotgun taken out of the car at the murder scene.
However, he fails to explain how this action prejudiced the outcome of the
trial. Our review of Wentzs changed testimony finds only a brief exchange
with the prosecutor where Wentz states he wants to clarify earlier testimony.
There is no intimation by the prosecutor in the course of that exchange,
however, that Wentz had lied. The postconviction court concluded that Wentz failed
to meet his burden in claiming that Mr. Wentz changed his account or
testified in any manner based on his attorneys suggestions. We agree.
The judgment of the trial court and the denial of postconviction relief are
affirmed in all respects, except as to sentencing. We vacate Wentzs sentence
for kidnapping and remand with instructions to impose concurrent sentences for all remaining
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, concur.
The Sixth Amendment states, in relevant part, In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .
Footnote: Article I, Section 13 states, in relevant part, In all criminal prosecutions,
the accused shall have the right . . . to meet the witnesses
face to face . . . .
Footnote: The Fifth Amendment states, in relevant part, No person . . .
shall be compelled in any criminal case to be a witness against himself
. . . .
Footnote: This count is referred to at several points in the record as
both murder and felony murder. However, the trial courts final instruction to
the jury, citing Ind. Code § 35-42-1-1(2), was on the elements of felony
A person who kills another human being while committing kidnapping, commits murder, a
To convict the defendant, the State must have proved each of the following
1. on or about July 26, 1996,
3. another human being Donna Heseman
4. while committing kidnapping.
Footnote: Wentz divides his ineffective assistance claim into two issues. First, he
argues that his counsels errors denied him a fair trial under the Indiana
and United States Constitutions. Second, he contends the postconviction court erred in
denying relief due to his trial counsels ineffectiveness.