William Clyde Gibson, III v. State of Indiana ( 2019 )

FILED
Oct 24 2019, 10:43 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case Nos. 22S00-1601-PD-00009,
22S00-1608-PD-00411
William Clyde Gibson, III
Appellant (Defendant)
–v–
State of Indiana
Appellee (Plaintiff)
Argued: January 10, 2019 | Decided: October 24, 2019
Appeal from the Floyd County Superior Court, No. 22D01-1606-PC-4
The Honorable Susan L. Orth
Appeal from the Floyd County Superior Court, 22D01-1703-PC-4
The Honorable Susan L. Orth
On Direct Appeal
Opinion by Justice Massa
Chief Justice Rush, Justice David, and Justice Goff concur.
Justice Slaughter not participating.
Massa, Justice.
William Clyde Gibson, III was convicted of and sentenced to death for
the brutal murders of Christine Whitis and Stephanie Kirk. After this
Court affirmed those convictions, Gibson, alleging ineffective assistance of
counsel, unsuccessfully petitioned for post-conviction relief. Finding
Gibson’s arguments unpersuasive and largely unsupported by the record,
we now affirm the post-conviction court’s denial of relief. We also hold
that Gibson’s conflict-of-interest claim falls under our standard Strickland
analysis for prejudice, not the presumption-of-prejudice standard under
Cuyler v. Sullivan.
Facts and Procedural History
Victims, Murders, and Arrest
In March 2012, William Gibson invited Stephanie Kirk to his home,
where, in an extended attack, he brutally strangled her to death and
sexually assaulted her corpse. Gibson hid her naked and broken body in
his garage overnight, burying her the next day in a shallow grave in his
backyard. The following month, Gibson invited to his home his late
mother’s best friend, 75-year-old Christine Whitis. As with Kirk, Gibson
violently strangled Whitis to death and sexually abused her corpse. He
then dragged her nude and lifeless body to the garage, where he severed
one of her breasts before leaving for a night out drinking at the bars. The
following day, Gibson’s sisters contacted police after discovering Whitis’s
body. That same evening, police arrested Gibson after a brief car chase,
forcibly removing him from the vehicle when he refused to exit on his
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own. A later search of the vehicle revealed Whitis’s severed breast lying in
the center console. 1
Investigation, Confessions, Charges, and Appointment of Defense
Counsel
While in custody, Gibson repeatedly asked to speak with police,
expressly waiving his Miranda rights each time. On April 20, the day after
his arrest, Gibson confessed to killing Whitis. He also confessed to killing
Karen Hodella, a woman whose murder had gone unsolved since police
had found her decomposed body in early 2003.
In subsequent interviews—on April 23, 24, and 26—Gibson confessed
to murdering Kirk (who, at the time, police did not yet know was dead)
and told police where to find her body in his back yard. Arriving there,
investigators found Kirk’s prescription drugs inside Gibson’s home and,
as with Whitis, found her corpse with a broken back.
The State charged Gibson with Whitis’s and Hodella’s murders on
April 24. That same day, the court appointed J. Patrick Biggs, the Chief
Public Defender of Floyd County, as Gibson’s defense counsel. The public
defender’s office, however, wouldn’t formally receive the order of
appointment for another three days. But on April 26, after receiving direct
notice from the New Albany Police Department, Biggs met with Gibson,
advising him, “in the very strongest possible language,” to remain silent
and to stop talking with police. PCR Tr. Vol. I, p.15. Biggs also told Gibson
that he could be facing the death penalty for his crimes. Gibson signed a
special advisement and waiver form after the trial court advised him of
the potential consequences for speaking with police.
1Our citations to the briefings and to the record are as follows: “GI” refers to State v. Gibson,
No. 22D01-1204-MR-919, the case in which Gibson was convicted for killing Christine Whitis.
“GII” denotes State v. Gibson, No. 22D01-1205-MR-1145, the case in which Gibson was
convicted for killing Stephanie Kirk. “DA” refers to the direct appeal materials for a particular
case. And “PCR” indicates citations to the record in the present post-conviction proceedings.
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Nearly a month later, on May 23 the State charged Gibson with Kirk’s
murder, filed separate death-penalty requests for the murders of Whitis
and Kirk, and refiled Hodella’s murder under a separate cause number. In
late June of that year, the trial court ordered a competency evaluation after
Gibson attempted suicide in jail. In October, the court heard evidence and
found Gibson competent to stand trial.
Trials, Pleas, Convictions, and Sentencing
Gibson first stood trial in October 2013 for Whitis’s murder (Gibson I).
Following his conviction, the jury deliberated on four aggravators during
the penalty phase: two forms of criminal deviate conduct,
dismemberment, and his probation status at the time of the crime. See I.C.
§ 35-50-2-9(b)(1)(D) (2007) (criminal deviate conduct); I.C. § 35-50-2-
9(b)(10) (2007) (dismemberment); I.C. § 35-50-2-9(b)(9)(C) (2007)
(probation status). The jury unanimously recommended a death sentence,
and the trial court sentenced Gibson accordingly in November
(withholding judgment on the jury’s habitual-offender finding in view of
the death sentence). On direct appeal, this Court affirmed Gibson’s
conviction and sentence for the Whitis murder. Gibson v. State, 43 N.E.3d
231, 242 (Ind. 2015).
Gibson’s trial for the murder of Karen Hodella was originally set for
October 2014. But in March of that year, he agreed to plead guilty in
exchange for a 65-year sentence in lieu of the death penalty. The State also
agreed not to use the Hodella murder or conviction as a death-penalty
aggravator in the pending Kirk case. See I.C. § 35-50-2-9(b)(8) (enabling the
State to seek the death penalty for murder by alleging at least one of
several enumerated aggravators, including the defendant’s commission of
“another murder, at any time, regardless of whether the defendant has
been convicted of that other murder”). The trial court accepted the plea
agreement and, in April 2014, entered judgment of conviction and
sentenced Gibson accordingly.
Finally, Gibson stood trial for Kirk’s murder in early June 2014 (Gibson
II). The day after jury selection began, the defense team discussed the
State’s proposal for a guilty plea and a penalty decision by the court
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without a jury in exchange for dismissal of a habitual-offender allegation.
Gibson accepted his counsel’s advice to plead guilty and to “take his
chances with the Judge.” PCR Tr. Vol. I, p.74. At the penalty-phase
hearing, the State presented four aggravators: conviction of the Whitis
murder, the same two forms of criminal deviate conduct as with Whitis,
and his probation status at the time of the murder. The trial court
sentenced Gibson to death in August 2014, which this Court affirmed on
direct appeal. Gibson v. State, 51 N.E.3d 204, 216 (Ind. 2016).
Post-Conviction Proceedings and Appeals
Gibson petitioned for post-conviction relief in all three cases, arguing
ineffective assistance of counsel (IAC). At a consolidated hearing, three
witnesses—a psychiatrist, Gibson’s former attorney, and Gibson’s ex-
wife—testified in support of the defense’s mitigation theory that Gibson
had sustained a traumatic brain injury in a 1991 car crash, an injury which
exacerbated his mental-health and substance-abuse problems. The post-
conviction court denied relief and Gibson appealed.
The non-capital case for the murder of Hodella proceeded to the Court
of Appeals after this Court denied Gibson’s petition for emergency
transfer. See Gibson v. State, No. 22A01-1711-PC-2528, 2018 WL 3421721
(Ind. Ct. App. July 16, 2018) (mem. dec.). 2 The two capital cases for the
murders of Whitis and Kirk—Gibson I and Gibson II, respectively—come to
this Court on direct appeal under Appellate Rule 4(A)(1)(a). After hearing
oral arguments in all three cases, we now deny Gibson’s petition to
transfer in the Hodella case. Our opinion today, without formally
consolidating the cases under Appellate Rule 38(B), addresses Gibson’s
post-conviction appeals in Gibson I and Gibson II.
2In rejecting Gibson’s argument that his guilty plea was not entered knowingly, intelligently,
and voluntarily, the panel—though acknowledging the State may have improperly induced
the plea agreement by using the Hodella case as a threatened death-penalty aggravator in the
Kirk case—concluded in a memorandum decision that Gibson failed to show (1) that such
threat was material to his decision to plead guilty or (2) that he would have proceeded to trial
had counsel properly advised him of the illusory plea. Gibson, 2018 WL 3421721, at *6.
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Standard of Review
Post-conviction proceedings are civil proceedings in which a defendant
may present limited collateral challenges to a conviction and sentence.
Ind. Post-Conviction Rule 1(1)(b); Wilkes v. State, 984 N.E.2d 1236, 1240
(Ind. 2013). The scope of potential relief is limited to issues unknown at
trial or unavailable on direct appeal. Ward v. State, 969 N.E.2d 46, 51 (Ind.
2012). “Issues available on direct appeal but not raised are waived, while
issues litigated adversely to the defendant are res judicata.” Id. The
defendant bears the burden of establishing his claims by a preponderance
of the evidence. P.-C.R. 1(5). When, as here, the defendant appeals from a
negative judgment denying post-conviction relief, he “must establish that
the evidence, as a whole, unmistakably and unerringly points to a
conclusion contrary to the post-conviction court’s decision.” Ben-Yisrayl v.
State, 738 N.E.2d 253, 258 (Ind. 2000). When a defendant fails to meet this
“rigorous standard of review,” we will affirm the post-conviction court’s
denial of relief. DeWitt v. State, 755 N.E.2d 167, 169–70 (Ind. 2001).
Discussion and Decision
Gibson’s IAC claim consists of several arguments, which we
summarize and restate as follows: (I)(A) unreasonable delay in legal
representation, which led to harmful self-incriminating statements; (I)(B)
unreasonable delay in assembling a defense team and investigating
evidence, which resulted in a deficient mitigation strategy throughout the
proceedings; and (I)(C) failure to challenge certain evidence presented by
the State as false, prejudicial, misleading, or unreliable. Gibson also argues
(II) that trial counsel’s uninformed advice prevented him from entering
his guilty plea in Gibson II knowingly, intelligently, and voluntarily; as
well as (III) that trial counsel—as Chief Public Defender of Floyd
County—labored under a conflict of interest, placing the financial needs of
his office above loyalty to his client.
We address each of these arguments in turn.
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I. Trial counsel was not ineffective.
To prevail on his IAC claims, Gibson must show (1) that his counsel’s
performance fell short of prevailing professional norms, and (2) that
counsel’s deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668 (1984). A showing of deficient performance
under the first of these two prongs requires proof that legal representation
lacked “an objective standard of reasonableness,” effectively depriving the
defendant of his Sixth Amendment right to counsel. Overstreet v. State, 877
N.E.2d 144, 152 (Ind. 2007) (citing Strickland). To demonstrate prejudice,
the defendant must show a reasonable probability that, but for counsel’s
errors, the proceedings below would have resulted in a different outcome.
Wilkes, 984 N.E.2d at 1240–41 (citing Strickland).
When assessing counsel’s performance under Strickland, we rely on
several important guidelines. First, we strongly presume that, throughout
the proceedings, counsel exercised “reasonable professional judgment”
and rendered adequate legal assistance. Stevens v. State, 770 N.E.2d 739,
746 (Ind. 2002) (citing Strickland). Second, defense counsel enjoys
“considerable discretion” in developing legal strategies for a client, and
this discretion demands deferential judicial review. Id. at 746–47. Finally,
counsel’s “[i]solated mistakes, poor strategy, inexperience, and instances
of bad judgment do not necessarily render representation ineffective.” Id.
at 747.
Beyond these broad directives, the American Bar Association’s
Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases (rev. ed. 2003) offer a digest of prevailing professional
norms. This Court will often consult these ABA Guidelines in its analysis.
See, e.g., Ward, 969 N.E.2d at 57 (applying the Guidelines in concluding
“that the scope of counsel’s investigation was reasonable”). At the same
time, we view this source of authority as advisory in nature, “not as
setting out rigid, detailed rules.” Weisheit v. State, 109 N.E.3d 978, 998 n.2
(Ind. 2018) (Rush, C.J., dissenting in part). See also Padilla v. Kentucky, 559
U.S. 356, 366–67 (2010) (quoting Bobby v. Van Hook, 558 U.S. 4, 8 (2009))
(the Guidelines are not “‘inexorable commands’”).
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A. There was no unreasonable delay in legal
representation.
The trial court appointed defense counsel to represent Gibson on April
24, 2012—the same day the State charged Gibson with the Whitis murder
and four days after he first confessed to killing her and Hodella. Biggs
received notice of his appointment on April 26, at which time he went to
visit Gibson in jail.
Gibson argues that this delay in representation led him to make several
self-incriminating statements to police, effectively defeating any leverage
he held in negotiating a “non-death resolution of both cases.” Appellant’s
GII Br. at 23–24. Counsel should have been aware of the cases sooner, he
contends, because of the extensive media coverage surrounding his arrest
for the murders. He quotes the ABA Guidelines in arguing that, “‘barring
exceptional circumstances,’” Biggs should have contacted him
immediately following his arrest. Appellant’s GI Br. at 20 (quoting ABA
Guideline § 10.5(B)(1)); Appellant’s GII Br. at 21 (quoting the same).
For the reasons below, we find no merit in this IAC claim.
As for deficient performance, Gibson fails to show that Biggs, prior to
April 26, actually knew of his arrest, let alone the charges leveled against
him. Biggs testified that he had not heard of the case through media
reports before receiving notice of appointment from the New Albany
Police Department. And, even if Biggs had learned of these events
through the media, Gibson—referred to in the papers only “as a possible
person of interest”—had already confessed to murdering Whitis and
Hodella by the time published news reports circulated. 3 PCR Ex. Vol. 12,
3On April 20, 2012, the Floyd County News and Tribune, in reporting on the investigation of
Whitis’s death, referred to Gibson “as a possible person of interest in the case,” adding that he
“was arrested on preliminary charges of operating while intoxicated and resisting law
enforcement.” PCR Ex. Vol. 12, pp. 13–15. Two days later, the weekend edition of the News
and Tribune reported on the continuing investigation, again referring to Gibson as a “possible
person of interest in the case.” Id. at 16, 20. That same issue, in reporting on Kirk’s
disappearance, simply referred to an unnamed “man” who, although “not a suspect,” police
had “been unable to locate.” Id. at 18.
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pp. 13–15. On top of that, the timely appointment of defense counsel rests
with the trial court. See Powell v. Alabama, 287 U.S. 45, 71 (1932). Here,
Biggs met with Gibson the day before the public defender’s office
received official notice of that appointment, immediately advising his
client, “in the very strongest possible language,” to stop talking to police.
PCR Tr. Vol. I, p.15. Biggs then arranged for a hearing at which the court
also advised Gibson of the potential consequences of his confessions to the
police. These actions fall far short of deficient performance of counsel. See
ABA Guidelines § 10.5(B)(1), (2) (urging defense counsel to contact the
client within 24 hours of “entry into case”). 4
Gibson also fails to show prejudice. Indeed, even if Biggs could have
acted sooner, Gibson offers no evidence or persuasive argument to show
that intervention by counsel would have prevented him from confessing
or that the outcome of the proceedings would have been different. Despite
repeated Miranda warnings from police during his initial custody, Gibson
never asked to speak with an attorney. And after receiving warnings from
both Biggs and the trial court, Gibson—having signed a special
advisement and waiver form—persisted in speaking with police and the
media about his crimes. The privilege against self-incrimination ultimately
belonged to Gibson, not his defense counsel. See Owens v. State, 431 N.E.2d
108, 110 (Ind. 1982) (“The purpose of the Miranda advisement is to make
the suspect aware of his privilege against self-incrimination, right
to counsel, and right to discontinue interrogation.”). And Gibson
knowingly and intelligently chose to waive that privilege.
4Even the capital defense expert Gibson relies on, when asked how soon he meets with a new
client facing the death penalty, stated that it “depends [on] when [he] get[s] notice” of
appointment. PCR Tr. Vol. III, p.173.
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B. We find no ineffectiveness, either at the pre-trial level
or at sentencing, because of any delay by counsel in
assembling the defense team.
Gibson faults trial counsel for unreasonable delay in assembling a
defense team and in consulting with experts. This delay, he insists, (1)
resulted in deficient pre-trial investigation, which, in turn, (2) thwarted
the effectiveness of voir dire, (3) deprived him of leverage in negotiating a
favorable plea, and (4) foreclosed any opportunity to pursue alternative
mitigation theories at the sentencing phase.
1. Pre-Trial Investigation
Biggs started assembling his defense team almost immediately after his
appointment. In late April (or early May) 2012, he contacted George
Streib, a Floyd County public defender qualified to serve as co-counsel in
capital cases. See Ind. Crim. R. 24(B)(2) (listing the qualifications for co-
counsel in capital cases). Streib filed an appearance in June, serving as co-
counsel in Gibson I until his replacement by Andrew Adams in November.
Around the time he contacted Streib, Biggs also spoke with Mark Mabrey,
an experienced investigator recommended by a leading capital defense
attorney. Mabrey started work on the cases in late October 2012, a delay
he attributed to his work in another capital case. Finally, in late September
2012, Biggs hired Michael Dennis, a mitigation specialist, who began work
within a few days.
In addition to these key players, Biggs consulted with several mental-
health experts. In late 2012, he hired an addictions expert and an expert on
correctional systems. And several months later, in June 2013, Biggs—on
the recommendation of the State Public Defender’s Office—hired Dr.
Edmund Haskins, a neuropsychologist, as a mental-health expert.
Despite these efforts, Gibson argues that, because trial counsel “failed
to commence work on the case immediately” the resulting “delayed
investigation fell below the prevailing professional norms.” Appellant’s
GI Br. at 22, 26. As evidence of this alleged deficiency in representation,
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Gibson cites the defense team’s low number of billable hours following
their retention.
We disagree and find no deficient performance.
First, our research reveals no caselaw (and Gibson cites none) finding
IAC based on the timing of trial counsel’s investigation. And we agree
with one of our sister states that a “finding as to whether counsel was
adequately prepared does not revolve solely around the amount of time
counsel spends on the case.” State v. Lewis, 838 So. 2d 1102, 1113 n.9 (Fla.
2002). We recognize the importance of counsel’s prompt assembly of a
defense team for a thorough and effective investigation. See ABA
Guidelines § 10.4(C) (urging lead trial counsel, “as soon as possible” after
appointment, to assemble a defense team); id. § 10.7(A) cmt. (noting that
delayed investigation may affect “first phase defenses,” decisions to
consult with experts, and strategies in negotiating pleas). Here, however,
we find no evidence of a deficient pre-trial investigation. Under the
standard cited by Gibson, the “elements of an appropriate investigation”
consist of (1) reviewing the charging documents; (2) searching for and
interviewing potential witnesses; (3) acquiring information held by the
prosecution or law enforcement, including any relevant physical evidence
or expert reports; and (4) reviewing the crime scene. ABA Guidelines §
10.7(A) cmt.
A review of the record clearly shows that the defense team met this
standard by the time Gibson first went to trial. During his time as co-
counsel, Streib met with Gibson several times; he reviewed discovery,
Gibson’s statements to police, and his criminal record; and he prepared
waivers, consulted with experts, and helped with jury selection. In the
first two months of his investigation (even as the police investigation
continued), Mabrey interviewed witnesses and reviewed discovery,
photographs, autopsy evidence, charging information, and other
documents. And during his first two months working the case, Dennis
twice met with Gibson, conducted witness and record searches, reviewed
documents and discovery, interviewed witnesses, prepared memoranda,
and coordinated with Mabrey.
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To be sure, the defense team encountered some setbacks in the
investigation early on. Mabrey, for example, testified that his delay in the
investigation made it difficult to locate some witnesses. And Streib added
that, by the time they had arrived at Gibson’s house, they “never really
got to see the crime scene as it . . . originally was,” leaving them only with
photographs to reconstruct the scene. PCR Tr. Vol. I, p.122. But despite
these setbacks, no one on the defense team testified that their belated
involvement in the case precluded a meaningful investigation. To the
contrary, as Biggs attested, the defense team “had everything that [they]
should have had by the time [they] went to trial.” PCR Tr. Vol. I, p.30.
Even if counsel’s delays resulted in deficient pre-trial investigation, we
find no prejudice. Gibson cites “lost” evidence from the crime scene and
missing video footage from the jail “possibly” showing him talking to
police. Appellant’s GI Br. at 23; Appellant’s GII Br. at 24–25. But he
neglects to sufficiently explain what this evidence would have revealed,
let alone how it would have changed the end result. See Cross v. O’Leary,
896 F.2d 1099, 1101 (7th Cir. 1990) (finding “no substantial likelihood that”
alleged evidence, absent “sufficiently precise information,” would have
led to a different outcome). Pure speculation is simply not enough. Id.
2. Preparation for Jury Selection
Gibson next argues that trial counsel’s delay thwarted the effectiveness
of voir dire, leaving him with an unfavorable jury. As evidence of counsel’s
deficiency, Gibson cites (a) the undeveloped mitigation theme found in
the juror questionnaires and (b) the delegation of questioning potential
jurors to a single, inexperienced attorney.
We find neither deficient performance nor prejudice on either basis.
a. Juror Questionnaires
Gibson faults trial counsel for neither conferring with mental-health
experts nor retaining a jury consultant before finalizing the juror
questionnaires. As a result, Gibson contends, the questionnaires lacked a
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cogent mitigation theme necessary to solicit vital information from the
potential jurors.
A juror predisposed to voting automatically for the death penalty,
without considering mitigating evidence, deprives the defendant of a fair
and impartial trial. Morgan v. Illinois, 504 U.S. 719, 729 (1992). And a
“capital defendant may challenge for cause any prospective juror who
maintains such views.” Id. To help uncover potential juror bias, the ABA
Guidelines urge defense counsel, with the assistance of an expert
consultant, to “devote substantial time to determining the makeup of the
venire, preparing a case-specific set of voir dire questions, planning a
strategy for voir dire, and choosing a jury most favorable to the theories of
mitigation that will be presented.” ABA Guidelines § 10.10.2 cmt.
We find no deficiency in performance under these standards.
First, Dennis, the mitigation specialist, spent several hours reviewing
the questionnaires in the week leading up to jury selection in Gibson I.
And considering the evidence he had collected up to that point in the
case—through over forty hours of discovery and document review,
witness interviews, and expert consulting—Dennis, rather than one of the
jury consultants, was arguably the most appropriate person to review the
questionnaire and recommend any changes if necessary.
Second, the questionnaire itself explicitly posed several mitigation-
related questions. In addition to surveying the venire panel’s religious
beliefs, education levels, and general opinions of the criminal justice
system, the twenty-page document asked, among other things, (1)
whether the potential juror favored or opposed the death penalty, (2)
whether the manner of execution made a difference in shaping that view,
(3) whether any particular crime warranted capital punishment, (4)
whether the potential juror considered the death penalty effective in
deterring crime, (5) whether a dangerous criminal should ever be shown
mercy, (6) whether a criminal’s mental capacity should influence the level
of punishment, (7) whether courts should rely on the expert testimony of
mental-health professionals, and (8) whether the potential juror would
ever consider life in prison.
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Once the venire panel completed the questionnaires, trial counsel
analyzed the data to further refine the jury pool during voir dire. To assist
with this process in Gibson I, Biggs hired local counsel, Doug Garner. In
the week leading up to voir dire, Garner scored the questionnaires,
drawing on his personal knowledge of Dearborn County and the potential
biases of the local jury pool. And in Gibson II, Jodie English, a jury
consultant with experience in capital cases, helped process the
questionnaires collected from the venire panel, distilling each response
into a “cheat sheet” for further questioning during jury selection. PCR Tr.
Vol. 2, pp. 140–42. This process, English testified, assisted trial counsel in
determining whether the potential jurors were “mitigation impaired,
whether they were life sentence impaired, whether they were automatic
votes for death, or whether they were automatic votes for life.” Id. at 140-
41. In short, the questionnaire formed part of a larger strategy in the jury
selection process.
To be sure, some of the jury consultants criticized trial counsel for
failing to incorporate their recommended questions. Inese Nieders, for
example, would have asked about the potential jurors’ opinions of sexual
assault and of crimes against the elderly. But the trial court concluded that
similar questions impermissibly exposed the jury pool to case-specific
aggravators. While courts may permit the questioning of potential “jurors’
biases or tendencies to believe or disbelieve certain things about the
nature of the crime itself or about the particular line of defense,” Wisehart
v. State, 693 N.E.2d 23, 45–46 (Ind. 1998) (internal quotation marks
omitted), counsel may not, as we held on direct appeal in Gibson I, pose
questions that “seek to shape the favorable jury by deliberate exposure to
the substantive issues in the case.” 43 N.E.3d at 238 (internal quotation
marks omitted). Even if these questions were permitted, trial counsel may
well have sought to avoid them, for fear of emphasizing the depravity of
Gibson’s crimes. See Bannowsky v. State, 677 N.E.2d 1032, 1035 (Ind. 1997)
(concluding that defense counsel’s “desire to avoid focusing [prospective]
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jurors’ attention upon [certain] questions” during voir dire was reasonable
trial strategy). 5
Because the questionnaires adequately covered the primary areas of
mitigation and because Gibson fails to describe how they should have
been changed, we find no deficiency in the performance of his counsel. See
United States v. Lathrop, 634 F.3d 931, 938 (7th Cir. 2011) (“So long as
counsel’s reasons for not questioning [a potential juror] further were not
so far off the wall that we can refuse the usual deference that we give
tactical decisions by counsel, his performance will not qualify as
deficient.”) (internal quotation marks omitted).
Gibson also fails to show prejudice. While citing the purportedly pro-
death views of several empaneled jury members, as reflected in their
questionnaire answers, Gibson overlooks their “assurances of
impartiality,” as this Court expressly found on direct appeal in Gibson I. 43
N.E.3d at 240.
b. Delegation of Questioning to Co-Counsel
Gibson also faults trial counsel for delegating the questioning of jurors
exclusively to co-counsel: Streib in Gibson I and Adams in Gibson II. As
evidence of IAC, Gibson cites counsel’s deviation from the “Colorado
Method” of jury selection 6 and counsel’s failure to strike for cause several
prospective jurors with strong pro-death penalty views.
5Gibson also argues that trial counsel proved ineffective for failing to amend the juror
questionnaire in preparation for Gibson II. This argument is equally unavailing. Even if
circumstances warranted revision, Gibson fails to explain what those circumstances were, and
we find no significant difference between the two cases.
6 The Colorado Method of capital jury selection applies several basic principles: (1) selection of
jurors based on their life and death views only; (2) attempts to remove pro-death jurors using
for-cause challenges while retaining jurors potentially favoring life; (3) questioning of pro-
death jurors about their ability to respect the decisions of the other jurors; and (4)
prioritization of peremptory challenges based on the prospective jurors’ views on
punishment. Matthew Rubenstein, Overview of the Colorado Method of Capital Voir Dire,
Champion, Nov. 2010, at 18.
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Again, we find no deficient performance.
First, both Streib and Adams received training in the Colorado Method
of jury selection, making them the most qualified defense attorneys to
handle this part of the case. See ABA Guideline § 10.10.2 (stating that
counsel “should be familiar” with techniques to qualify a capital jury). To
be sure, some members of the defense team spoke of their concerns over
co-counsel’s performance. For example, Garner (local counsel employed
by Biggs) testified that Streib, while “reasonably effective” when jury
selection began, ultimately “got worn down, and became less effective as
the days went on and the days got later and later.” PCR Tr. Vol. III, p.81.
Streib was “clearly tired, fatigued, and stressed,” Garner added, and “was
less able to effectively resist the prosecutor’s attempts to challenge persons
for cause.” Id., p.82. English, the jury consultant, lodged similar criticisms
against Adams, faulting him for not asking certain follow-up questions
and other “radical deviations from the [Colorado] method.” PCR Tr. Vol.
II, p.145. But even if co-counsel deviated from their training, and even if
they could have been “a little bit more aggressive” in their questioning, as
Garner opined, PCR Tr. Vol. III, pp. 100–01, we find no evidence that they
acted deficiently. As Garner himself acknowledged, “everybody does
things differently” when applying the Colorado method. Id., p.80.
Second, while they may have been the only ones interacting directly
with the jury, both Streib and Adams testified to having the full support of
the defense team. Gibson’s claim to the contrary draws upon select
portions of the record, painting a highly-subjective narrative that fails to
accurately reflect trial counsel’s strategy during jury selection. Indeed,
even those critical of co-counsels’ performance acknowledged the defense
team’s support. Garner, for example, testified to having sat with Streib at
counsel table during jury selection, offering hypothetical questions to
gauge the jury’s response, and recommending which jurors to strike.
“[W]hen the round of questioning was done,” he stated, “everybody
would put their heads together.” PCR Tr. Vol. III, p.94.
Even if co-counsel fell short of prevailing professional norms in their
questioning of jurors, Gibson fails to show prejudice. Indeed, other than
faulting co-counsel for deviating from certain methods and for failing to
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strike certain prospective jurors for cause, he points to no particular action
that would have resulted in a different outcome. And “bald assertions of
prejudice” don’t satisfy the defendant’s burden under Strickland. Timmons
v. State, 500 N.E.2d 1212, 1217 (Ind. 1986).
3. Plea Negotiations
Soon after the State filed its death-penalty allegation in Gibson I, Biggs
approached the prosecution in an effort to negotiate a plea sparing
Gibson’s life. But the prosecutor was “adamant” in seeking the death
penalty, and Biggs made no further effort to negotiate a reduced plea in
either case. PCR Tr. Vol. I, p.25.
Gibson argues that, regardless of the prosecutor’s initial response, trial
counsel had a continuing duty to negotiate a favorable plea “at all phases”
of litigation. Appellant’s GI Br. at 28; See ABA Guidelines § 10.9.1(E)
(“[I]nitial refusals by the prosecutor to negotiate should not prevent
counsel from making further efforts to negotiate.”). “Had counsel
conducted the necessary investigation and consulted with the appropriate
experts,” Gibson adds, “there is a reasonable probability that [the] parties
would have reached an agreed-upon resolution sparing Gibson the death
penalty.” Appellant’s GI Br. at 29.
While there is no constitutional right to a plea offer, criminal
defendants are entitled to “effective counsel during plea negotiations.”
Missouri v. Frye, 566 U.S. 134, 144 (2012). Here, however, we find no
deficient performance. The ABA Guidelines urge defense counsel to
persevere in negotiations despite the prosecutor’s initial refusals, but the
persistence of counsel depends on changing circumstances over the course
of the proceedings. See ABA Guidelines § 10.9.1 cmt. Gibson points to no
change in circumstances that would have prompted trial counsel to
renegotiate a plea deal. To the contrary, as the investigation unfolded, the
overwhelming evidence revealed the horrific nature of Gibson’s crimes,
effectively depriving trial counsel of any leverage in seeking a reduced
sentence.
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Even if Biggs had attempted to negotiate a more favorable plea
agreement, we find no prejudice, as Gibson fails to show that he would
have accepted an offer had one been made—let alone that the prosecution
would have kept that offer on the table. See Lafler v. Cooper, 566 U.S. 156,
164 (2012) (a finding of prejudice requires the defendant to show that he
“would have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances”). In fact, the record
reveals Gibson’s apparent preference for the death penalty—a preference
that manifests itself in his statements to police and the media and in the
“Death Row X 3” tattooed on the back of his head. See GII DA App. Vol. 4,
p.749. As Biggs testified, “all along Mr. Gibson just kind of wanted to get
things over with,” that is, he “just wanted to go ahead, admit everything,
and take the death penalty.” PCR Tr. Vol. I, p.74.
4. Presentation of Mitigating Evidence at Sentencing
Gibson next argues that trial counsel’s “dilatory representation from
the case’s inception” left him with a futile mitigation defense at
sentencing. Appellant’s GI Br. at 35; Appellant’s GII Br. at 29.
The Sixth Amendment entitles capital defendants to the effective
assistance of counsel at the penalty phase of trial. See, e.g., Rompilla v.
Beard, 545 U.S. 374 (2005); Smith v. State, 547 N.E.2d 817 (Ind. 1989). This
includes the investigation and presentation of mitigating factors that may
reduce the defendant’s sentence. Porter v. McCollum, 558 U.S. 30, 40 (2009);
Ward, 969 N.E.2d at 56. While the failure to meet this duty may result in
IAC, trial counsel need not investigate “every conceivable line of
mitigating evidence.” Ritchie v. State, 875 N.E.2d 706, 719 (Ind. 2007).
Rather, “counsel has a duty to make a reasonable investigation or to make
a reasonable decision that the particular investigation is unnecessary.” Id.
at 719–20. And the strategic decision to present or not to present the fruits
of that investigation at trial enjoys broad judicial deference. Id. at 720.
Ultimately, our concern is whether the investigation supporting that
decision is reasonable, “not whether counsel should have presented more
in mitigation.” Id.
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Here, trial counsel’s mitigation theory in Gibson I focused largely on
Gibson’s history of drug and alcohol abuse, his dysfunctional childhood,
his family’s history of mental illness and the negative effect of his
mother’s recent death. Trial counsel also presented evidence of Gibson’s
hobbies and mechanical skills, the friendly relationships he forged with
his neighbors, and his generally good behavior in prison. This narrative
emerged from the defense team’s extensive review of Gibson’s medical
history and the opinions of several experts.
With evidence that Gibson had sustained multiple concussions in the
past, trial counsel ordered an MRI to assess Gibson for possible brain
damage. Dr. Victor Matibag, a neurologist, reviewed the MRI, ultimately
finding no evidence of brain damage. Dr. Haskins, a neuropsychologist
and expert on traumatic brain injuries, likewise found no sign of major
cognitive impairment, concluding that Gibson suffered from bipolar, anti-
social personality, and borderline-personality disorders. At trial, he
testified to the effect of these disorders on Gibson in relation to his history
of drug and alcohol abuse.
In addition to these experts, the defense team presented several lay
witnesses to support its mitigation theory at sentencing. Brenda Ray,
Gibson’s half-sister, testified to their childhood, their family history of
mental illness and substance abuse, and their brother’s suicide. George
Johnson, a correctional officer, attested to Gibson’s suicide attempt and
emotional state during his incarceration. And Thomas Wesley, Gibson’s
neighbor, spoke of Gibson’s help with home maintenance, the time they
spent repairing motorcycles, and Gibson’s dramatic change in personality
following his mother’s death.
With certain exceptions, trial counsel generally stuck with the same
mitigation theory and witnesses in Gibson II. Dr. Barry Hargan, a
psychologist, testified to Gibson’s history of substance abuse. And Dr.
Heather Henderson-Galligan, who replaced Dr. Haskins, testified to her
diagnosis of Gibson’s bipolar disorder.
Despite these efforts, Gibson argues that trial counsel ineffectively
presented mitigating evidence at sentencing. He specifically faults counsel
for failing to secure important lay witnesses and for failing to present his
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complete medical history—including the 2013 MRI—to a qualified mental-
health expert. As evidence of deficient performance, Gibson points to the
allegedly stronger testimony of Dr. Andrew Chambers, an expert in
addictions psychiatry who first testified at the post-conviction hearing. As
with Drs. Haskins and Henderson-Galligan, Dr. Chambers diagnosed
Gibson with bipolar disorder, anti-social personality disorder, and drug
and alcohol abuse. But, in deviating from his expert counterparts at the
trial level, Dr. Chambers—based on his review of the MRI and other
medical records—concluded that Gibson suffered from a possible
traumatic brain injury. This injury, traced to a 1991 car accident, allegedly
went “grossly undertreated” over the years, exacerbating Gibson’s mental
illness and substance abuse problems. PCR Ex. Vol. 18, p.24. Two lay
witnesses—Gibson’s ex-wife, Kelly Fey, and John Carroll, a criminal
defense attorney who represented Gibson on sexual battery charges in
1991—corroborated this theory, testifying to Gibson’s deterioration in
mental health after the accident. This deterioration, Dr. Chambers
explained, left Gibson with a “very disturbed and dysfunctional brain,”
ultimately leading to impulsive criminal behavior devoid of “strategic
premeditation.” PCR Ex. Vol. 18, pp. 15, 16.
This post-conviction testimony, Gibson insists, “presented a much more
accurate and compelling description of [his] addictive and psychiatric
conditions” than that offered at sentencing. Appellant’s GI Br. at 46. Had
trial counsel uncovered and presented this readily-available evidence, he
contends, there is a reasonable probability the court would have spared
him the death penalty. 7
We disagree and find no deficient performance of counsel.
7In determining whether to impose a death sentence or a sentence of life imprisonment
without parole, a court may consider several mitigating circumstances under Indiana Code
section 35-50-2-9(c). Gibson argues that the post-conviction testimony supports two of these
circumstances: (1) that he “was under the influence of extreme mental or emotional
disturbance when the murder was committed” and (2) that his “capacity to appreciate the
criminality of [his] conduct or to conform that conduct to the requirements of law was
substantially impaired as a result of mental disease or defect or of intoxication.” See I.C. § 35-
50-2-9(c)(2), (6).
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First, there is no evidence that the experts at trial received inadequate
information to conduct their analyses or to form their opinions. Dr.
Haskins reviewed volumes of Gibson’s medical records—from Floyd
Memorial Hospital, from Madison State Hospital, from Richmond State
Hospital, from the Kentucky Department of Corrections, and from the
Army. And while the record doesn’t show whether he reviewed the 2013
MRI, Dr. Haskins conducted a “battery” of neuropsychological
evaluations in forming his assessment. GI DA Tr. Vol. XV, pp. 3630, 3636,
3649.
Dr. Hargan, in turn, met with Gibson to assess his level of alcohol and
drug dependence. In preparation for the interview, Dr. Hargan reviewed
Dr. Haskins’s evaluation, Gibson’s medical records from the Madison
State Hospital, and a discharge summary from another hospital visit.
Because of the limited scope of his investigation, he testified, these
documents—along with background information he collected on Gibson’s
family history, childhood, education, employment, and military
experience—provided Dr. Hargan with “enough information” to conduct
his assessments. GII DA Tr. Vol. IV, pp. 1024, 1027.
For her part, Dr. Henderson-Galligan reviewed Gibson’s medical
records from Richmond State Hospital and Madison State Hospital. She
also interviewed Gibson, observing his behavior and collecting
background information on his mental health and other aspects of his life.
This information, she testified, likewise proved sufficient in forming the
basis of her diagnosis.
Second, while evidence of brain damage resulting in impulsive, violent
behavior is certainly relevant to a defendant’s moral culpability, see Porter,
558 U.S. at 36, 41, there’s nothing to conclusively establish the existence of
a TBI. Indeed, neither of the trial experts—Dr. Haskins or Dr. Matibag—
found evidence of brain damage. And Dr. Chambers himself
acknowledged that “just because an individual sustains a head injury does
not mean that they’ve sustained a brain injury.” PCR Ex. 94D, Vol. 18,
p.62. What’s more, he added, even a brain injury can heal over time—the
length of recovery depending on the level of severity. Absent evidence of
impaired cognition, trial counsel may reasonably have decided that a head
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injury sustained nearly three decades ago simply wasn’t worth
investigating further. And while Gibson’s mental health and addiction
issues may have escalated in the intervening years, he also lived a
relatively normal life during this period—fixing motorcycles, creating
artwork, and helping neighbors with home maintenance and repair. Trial
counsel would have had a difficult time reconciling these facts with a
theory attributing Gibson’s violent criminal behavior to a concussion
sustained thirty years ago, especially with evidence of Gibson’s normal
neurocognitive functioning. The recent death of Gibson’s mother, on the
other hand, presented trial counsel with a viable mitigation theory with
supporting testimony from several lay witnesses. See Stevens, 770 N.E.2d
at 746–47 (defense counsel enjoys considerable discretion in developing
legal strategies for his client).
Finally, trial counsel had no reason to question the qualifications of the
experts he employed; they came highly recommended by respected
criminal defense attorneys and nothing suggests that they were wrong in
their assessments. While Gibson suggests that Dr. Matibag was
unqualified in evaluating the MRI for signs of brain damage, he fails to
specify who counts as a “qualified expert” to conduct this analysis, let
alone how Dr. Chambers—an addictions psychiatrist—was any more
qualified than Dr. Matibag. To the extent the expert opinions conflict, such
disagreement does not establish IAC in the investigation and presentation
of mitigating evidence. See Conner v. State, 711 N.E.2d 1238, 1256 (Ind.
1999) (observing that mental-health professionals “disagree widely and
frequently on what constitutes mental illness [and] on the appropriate
diagnosis to be attached to a given behavior and symptoms”).
In short, “[t]his is not a case in which the defendant’s attorneys failed to
act while potentially powerful mitigating evidence stared them in the face
. . . or would have been apparent from documents any reasonable attorney
would have obtained.” Bobby, 558 U.S. at 11. Rather, trial counsel’s
“decision not to seek more mitigating evidence from the defendant’s
background than was already in hand fell well within the range of
professionally reasonable judgments.” Id. (internal quotation marks
omitted). Cf. Patrasso v. Nelson, 121 F.3d 297, 303–05 (7th Cir. 1997)
(counsel’s performance at sentencing was “practically non-existent”);
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Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1991) (holding that defense counsel’s
failure to investigate his client’s psychiatric history before sentencing
phase of trial amounted to IAC).
Even if trial counsel should have investigated further, Gibson fails to
show prejudice. In assessing prejudice, we ask whether there is a
reasonable probability that, but for counsel’s errors, the sentencing court
“would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S. at 695.
Here, the sentencing court faced four significant death-qualifying
aggravators in each case. Gibson committed three murders in the span of
about a decade, two he committed while on probation and which included
extremely violent sexual assaults, and one which involved
dismemberment. Given the severity of these aggravators, we are not
persuaded that the jury in Gibson I, or the judge in Gibson II, would have
imposed anything less than a sentence of death. Indeed, a “few more
tidbits from the past or one more diagnosis of mental illness on the scale
would not have tipped it in [Gibson’s] favor.” Eddmonds v. Peters, 93 F.3d
1307, 1322 (7th Cir. 1996); see also Weisheit, 109 N.E.3d at 995.
C. Trial counsel was not ineffective for failing to raise
specific challenges at the guilt phase.
Gibson raises several IAC claims related to the guilt phase of his
proceedings, namely counsel’s failure to challenge (1) his allegedly
coerced statements to police, (2) the allegedly false testimony from a State
witness, (3) an allegedly prejudicial victim-impact statement, and (4) an
alleged Caldwell error.
A decision to object or not to object is a matter of trial strategy, and
counsel is presumed to have acted effectively in making the decisions.
Myers v. State, 33 N.E.3d 1077, 1099 (Ind. Ct. App. 2015). To establish IAC
in this context, “a defendant must prove that an objection would have
been sustained if made and that he was prejudiced by the failure.”
Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001).
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1. Statements to Police
Statements to police are admissible so long as they are voluntarily
given. Pruitt v. State, 834 N.E.2d 90, 115 (Ind. 2005). In determining
whether a confession was voluntary or coerced, we look to the
circumstances surrounding the interrogation. Id.
Here, Gibson complains of the detectives’ use of coercive techniques
during his post-arrest interrogation, rendering his confessions false and
unreliable. In support of this argument, he cites his vulnerability to
manipulation and points to several statements he made about other
putative victims that ultimately proved untrue. Gibson raises this claim
not to contest his underlying guilt but to challenge the evidence used from
his confessions at the sentencing phase.
We find no deficient performance, as Gibson fails to persuade us that
the trial court would have sustained any objection to the admissibility or
reliability of his statements.
First, the record shows that Gibson’s statements were voluntary. Before
each interrogation, the interviewing detective advised Gibson of his
Miranda rights. And each time, Gibson waived those rights, persistently
agreeing to speak with police about his crimes despite advice to the
contrary from both trial counsel and the court. When asked whether
Gibson seemed “capable of waiving his right to counsel and other Miranda
rights,” Biggs responded in the affirmative, testifying that Gibson
“seemed very composed” and “very at ease” and that “he just wanted to
get it all over with.” PCR Tr. Vol. I, p.59. Co-counsel Adams likewise
testified that Gibson’s recorded statements to police appeared “knowingly
. . . free [and] voluntary.” 8 PCR Tr. Vol. I, p.168.
What’s more, a challenge to Gibson’s police confessions would have
forced counsel to confront at trial the incriminating statements Gibson
8We likewise find the testimony of Gibson’s expert on false confessions unpersuasive, as that
testimony criticized only two tactics used by the police—minimization and leading
questions—neither of which suggested coercion.
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made to the media without evidence of coercion. We agree with the post-
conviction court that the “defense’s credibility would have been
endangered by attempting to challenge these statements in light of
corroborating evidence.” Appellant App. Vol. III, pp. 24–25. See Hardamon
v. United States, 319 F.3d 943 (7th Cir. 2003) (failure to object to damaging
testimony by witness was reasonable trial strategy, since an objection
would have called additional attention to the statements).
The evidence also contradicts the idea that Gibson was vulnerable to
police coercion. To the contrary, it was Gibson—not the police—who
consistently used “manipulative tactics” throughout the investigation.
Gibson II, 51 N.E.3d at 208–09. As Detective Carrie East explained, because
Gibson “had all the information” on his victims, he controlled the
interviews, agreeing to reveal certain facts in exchange for a cigarette
break, a coffee break, or other perks. PCR Tr. Vol. II, pp. 234–35.
Gibson’s tactics also explain the false statements he made about other
putative victims. As Biggs testified, Gibson consistently maintained “that
the statements he gave about Ms. Hodella, Ms. Whitis, and Mrs. Kirk were
true, that they were the only murders he had committed.” PCR Tr. Vol. I,
pp. 26–27, 50 (emphasis added). By confessing to the other alleged
murders, Gibson deliberately misled police, sending “them on a number
of wild goose chases . . . just to get out of his cell, just to drive around.” Id.,
pp. 26–27.
Even if trial counsel should have challenged Gibson’s statements to
police, we find no evidence of prejudice. Substantial independent
evidence of Gibson’s guilt confirms the truth of his admissions. Police
found Whitis’s corpse in Gibson’s garage and, in the hours after her body
was discovered, they apprehended Gibson, who was driving her van with
the severed breast in the console.
In short, Gibson shows neither deficient performance nor a reasonable
probability of a different outcome had he challenged the admissibility of
his statements. As trial counsel testified, because they “had three bodies to
corroborate the confessions,” they “couldn’t challenge them as being false
confessions.” PCR Tr. Vol. I, p.53.
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2. Testimony from State Witness
At trial in Gibson I, one of the State’s witnesses—a detective—testified
to certain inconsistencies in Gibson’s statements. These inconsistencies left
a 24-hour gap during which Gibson may have held Whitis against her will
before killing her. The detective also suggested that Gibson may have
bound his victim using duct tape. Gibson attacks this testimony as false
and argues that trial counsel acted deficiently by failing to object. As with
his preceding IAC claim, Gibson concedes lack of prejudice at the guilt
phase, arguing instead that counsel’s deficient performance resulted in
prejudice at sentencing.
A conviction based on the State’s knowing use of false evidence violates
a defendant’s Fourteenth Amendment right to due process. Giglio v.
United States, 405 U.S. 150, 153–55 (1972). Here, however, we find no proof
of false testimony. The detective simply attested to the discrepancies
between Gibson’s statements and the physical evidence, suggesting
Whitis may have endured an extended attack before dying. Indeed, the
medical examiner found massive blunt force trauma to the victim’s head,
extensive bruising on her arms, and evidence that she had been sexually
assaulted while still alive. This evidence tends to justify the detective’s
skepticism that Whitis died quickly. And Gibson himself acknowledges
that the detective’s “assertions were speculation.” Appellant’s GI Br. at 51.
An objection by trial counsel on grounds of false testimony would not
have been sustained. See Wrinkles, 749 N.E.2d at 1192 (“[T]o prove
ineffective assistance of counsel due to the failure to object, a defendant
must prove that an objection would have been sustained if made and that
he was prejudiced by the failure.”).
Gibson also fails to show deficient performance because trial counsel
confronted the detective on cross-examination with evidence—namely,
inconclusive DNA analysis of the duct tape—that contradicted the
detective’s tentative conclusions. Rather than lodging a preemptive
objection to the detective’s speculative testimony, trial counsel
strategically challenged the witness on cross examination with conflicting
evidence.
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We likewise find no prejudice. Gibson contends that the prosecutor
adopted the detective’s false testimony in closing arguments “‘in a
manner calculated to inflame the passions or prejudice of the jury.’”
Appellant’s GI Br. at 53 (quoting Neville v. State, 976 N.E.2d 1252, 1264
(Ind. Ct. App. 2012), trans. denied). But those arguments—that Gibson
sexually assaulted Whitis, “then killed her, and then . . . kept her in [his
garage] for 24 hours or so”—simply reflect the facts of the case. GI DA Tr.
Vol. XV, pp. 3416–17. See Cooper v. State, 854 N.E.2d 831, 837 (Ind. 2006)
(the prosecutor may present a “fair commentary on the facts introduced at
trial”). The prosecutor never stated that Gibson bound Whitis for an
extended period of time. And even if there were such an implication, the
severity of Gibson’s crime—involving an extremely violent sexual assault
and dismemberment—outweigh any prejudice.
3. Victim-Impact Statements
In both its opening and closing arguments during the guilt phase in
Gibson I, the prosecution discussed how Whitis had enjoyed spending
time with her children and grandchildren, that she was “active,”
“healthy,” and “vibrant” and showed love “not just to her family, but to
her friends” as well. GI DA Tr. Vol. XII, pp. 2697, 3447–48. These
statements, Gibson contends, improperly influenced the jury by eliciting
emotion and sympathy. Had trial counsel objected, he insists, the court
would have sustained the objection.
Generally, courts allow the introduction of victim-impact statements to
demonstrate the “consequences suffered by a victim or a victim’s family
as a result of a crime.” Laux v. State, 985 N.E.2d 739, 749 (Ind. Ct. App.
2013), trans. denied. But this evidence is generally prohibited in a capital
case, unless relevant to an aggravating or mitigating circumstance. Bivins
v. State, 642 N.E.2d 928, 956–57 (Ind. 1994).
Here, the prosecutor appears to have offered these statements not as
evidence but as an argument, likely to show that Gibson exploited the care
and affection of a family friend for his own deviant ends. See Piatek v.
Beale, 999 N.E.2d 68, 69 (Ind. Ct. App. 2013) (noting that the “arguments of
counsel are not evidence”), trans. denied. And trial counsel could
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reasonably have abstained from objecting to these statements to avoid the
appearance of insensitivity or to avoid drawing more attention to the
underlying facts. See Pennycuff v. State, 745 N.E.2d 804, 812 (Ind. 2001)
(counsel’s decision to waive “perfunctory objections having little chance
of success or no direct or substantial relationship to the main thrust of the
defense is within the realm of reasonable trial strategy”) (internal
quotation marks omitted); Myers, 33 N.E.3d at 1103 (finding no deficient
performance when counsel failed to object “to avoid drawing unfavorable
attention” to certain facts).
Even if we were to characterize the prosecutor’s statements as evidence,
Gibson fails to prove prejudice. The jury received instructions to disregard
counsel’s unsworn statements and “only consider testimony and evidence
. . . [that] comes from the witness stand from a witness placed under
oath.” GI DA Tr. Vol. III, p.576. See Weisheit v. State, 26 N.E.3d 3, 20 (Ind.
2015) (juries are presumed to follow instructions). And to the extent the
jury ignored these instructions, the prosecutor’s statements likely had
little, if any, effect on the jury, considering the overwhelming evidence of
Gibson’s guilt. See Cooper v. State, 687 N.E.2d 350, 353–54 (Ind. 1997)
(relying on “overwhelming evidence of guilt” in finding no prejudice
when defense counsel failed to object to victim-character evidence);
Lambert v. State, 675 N.E.2d 1060, 1065 (Ind. 1996) (reciting the rule that an
“evidentiary error is harmless” if its probable impact on the jury, “in light
of all the evidence in the case, is sufficiently minor so as not to affect the
substantial rights of the parties”). And the admission of facts about a
victim that “does no more than state the victim’s status in life” is no
grounds for reversible error. Burris v. State, 642 N.E.2d 961, 966 (Ind. 1994).
4. Caldwell Error
In capital cases, Indiana law imposes on the jury a duty to “recommend
to the court whether” the defendant should receive “the death penalty or
life imprisonment without parole, or neither.” I.C. § 35-50-2-9(e). And “[i]f
the jury reaches a sentencing recommendation, the court shall sentence
the defendant accordingly.” Id. (emphasis added).
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In its preliminary and final instructions during the penalty phase of
Gibson I, the trial court informed the jury that, in weighing the aggravating
and mitigating factors, it “may recommend the sentence of death or life
imprisonment without parole.” GI DA Tr. Vol. XV, p.3486; DA GI Tr. Vol.
XVI, p.3808 (emphasis added). These instructions, Gibson argues,
improperly suggested to the jurors that their recommendations were
merely “advisory in nature” rather than binding, as the law requires.
Appellant’s GI Br. at 58–59 (internal quotation marks omitted). The
prosecutor compounded this error, Gibson contends, by emphasizing to
the jury in closing arguments that he “shar[ed the] responsibility” in
deciding Gibson’s fate, having “signed the charging document [and]
death penalty papers.” See GI DA Tr. Vol. XVI, p.3788. Had the jury
understood the binding nature of its recommendation, Gibson argues,
“there is a reasonable likelihood it would have voted against death.”
Appellant’s GI Br. at 59.
Under Caldwell v. Mississippi, a statement to the jury that diminishes its
sense of responsibility for imposing a death sentence is constitutionally
impermissible. 472 U.S. 320, 328–29 (1985). 9 The purpose of this rule is to
avoid “creating the mistaken impression” that a higher court, despite “the
limited nature of appellate review,” makes the final and “authoritative
determination of whether death was appropriate.” Id. at 343 (O’Connor, J.,
concurring in part and concurring in the judgment). Caldwell errors apply
only to instructions, argument, or evidence that is inaccurate and
misleading. To prove such an error, a defendant “must show that the
remarks to the jury improperly described the role assigned to the jury by
local law.” Dugger v. Adams, 489 U.S. 401, 407 (1989).
Here, “the jury was not affirmatively misled regarding its role in the
sentencing process.” Romano v. Oklahoma, 512 U.S. 1, 9 (1994). Rather, the
9In Caldwell, the prosecutor argued to the jurors that their decision was “not the final
decision” because the case would be reviewed by a higher court on appeal. 472 U.S at 325.
Caldwell appealed his death sentence, arguing that the prosecutor’s comments diminished
the constitutional responsibility placed on the jurors as the ultimate deciders of his fate. Id. at
325–26.
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prosecutor simply made a factual assertion that he shared in the
responsibility of determining the appropriate sentence since he was the
one who sought the death penalty to begin with. In other words, had the
prosecutor never filed the death-penalty allegation, the dilemma of
whether to impose that sentence would never have presented itself to the
jury. Nothing in the prosecutor’s statements qualified the jury’s role in
sentencing Gibson. To the contrary, he recognized the heavy burden
placed on each of the jurors, “in no way want[ing] to diminish” their
“difficult” role in deciding Gibson’s fate. GI DA Tr. Vol. XVI, p.3788.
What’s more, the prosecutor made no indication—either expressly or
implicitly—that the ultimate determination of death lies with an appellate
court. See Caldwell, 472 U.S. at 325.
Even if the prosecutor’s comments were objectionable, the trial court
informed the jury—in both its preliminary and final instructions—that the
“law requires that your sentencing recommendation must be followed by
the Judge” and that the “Judge must follow your sentencing
recommendation.” GI DA Tr. Vol. XVI, p.3814; GI DA Tr. Vol. XV, p.3486.
And “[w]hen the jury is properly instructed, we will presume they
followed such instructions.” Weisheit, 26 N.E.3d at 20 (internal quotation
marks omitted). To the extent these instructions proved insufficient, as
Gibson suggests, defense counsel’s arguments in closing—emphasizing
the “the decision [the jury] will have to make” as to life or death—cured
any confusion over the binding nature of the jury’s sentencing
recommendation. GI DA Tr. Vol. XVI, p.3792.
For these reasons, we find neither deficient performance nor prejudice
from trial counsel’s failure to object to the court’s jury instructions or the
prosecutor’s closing arguments. 10
10Because Gibson fails to show deficient performance at the trial level, we decline to address
his argument that appellate counsel was ineffective for failing to raise the unpreserved
Caldwell claim on direct appeal. See Woods v. State, 701 N.E.2d 1208, 1221 (Ind. 1998)
(“[I]neffective assistance of appellate counsel requires the petitioner to overcome the double
presumption of attorney competence at both trial and appellate levels.”).
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II. Gibson’s guilty plea with open sentencing was
knowing, intelligent, and voluntary.
On the second day of voir dire in Gibson II, the prosecutor approached
defense counsel to ask whether Gibson would consider, in lieu of a jury
trial, pleading guilty to the Kirk murder while leaving sentencing to the
court’s discretion. The prosecutor also offered to dismiss the habitual-
offender enhancement. After a “lengthy discussion,” the defense team
presented the offer to Gibson, outlining the “pros and cons” of the plea.
PCR Tr. Vol. I, pp. 179–80. Biggs and Adams, while “ma[king] it clear [to
Gibson] that it was his decision,” urged him to accept the plea, opining
“that it would be better to take his chances with the Judge” rather than
with the jury. Id. at 73–74.
This advice, Gibson contends, amounted to IAC. “The prevailing
professional norm,” he insists, “is to avoid, if at all possible, pleading a
capital client guilty with the death penalty as a sentencing option.”
Appellant’s GII Br. at 67–68 (citing ABA Guidelines § 10.9.2). Further, he
insists, trial counsel’s uninformed advice—given the inadequate
investigation of mitigating evidence—prevented Gibson from entering his
plea intelligently and voluntarily, rendering it void as a violation of due
process.
A valid guilty plea depends on “whether the plea represents a
voluntary and intelligent choice among the alternative courses of action
open to the defendant.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (internal
quotation marks omitted). IAC claims alleging invalid guilty pleas based
on trial counsel’s flawed advice turn on the same two-part test outlined in
Strickland. Id. at 57.
Under the performance prong, “the voluntariness of the plea depends
on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.” Lockhart, 474 U.S. at 56 (internal
quotation marks omitted). Here, the evidence supports the conclusion that
trial counsel met this standard.
In weighing whether Gibson should plead guilty, Biggs recognized the
detrimental effect that the gruesome photos of Ms. Whitis’ corpse had
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played in the outcome of Gibson I. Counsel clearly wanted to avoid the
same effect in Gibson II. Biggs also considered that the judge had never
sentenced someone to death without a binding jury recommendation.
“We didn’t know what the Judge would do,” he testified, “but we felt
virtually certain that that jury was going to impose the death penalty.”
PCR Tr. Vol. I, p.75 Co-counsel Mabrey expressed similar sentiments,
concluding that, because of the death sentence already imposed in Gibson
I, the judge “might consider” a life sentence instead. PCR Tr. Vol. III,
p.134.
While “counsel should be extremely reluctant” to plead a capital client
guilty with open sentencing, the choice ultimately is for the client to make
and “counsel’s role is to ensure that the choice is as well considered as
possible.” ABA Guidelines § 10.9.2 cmt. The deliberation here shows that
trial counsel carefully considered their options. While “ma[king] it clear
[to Gibson] that it was his decision,” they believed Gibson stood a greater
chance of avoiding a second death sentence by pleading before a detached
and unbiased trial judge, rather than a highly-impressionable jury. PCR
Tr. Vol. I, p.74.
Still, Gibson points to critical testimony from some members of the
defense team as evidence of deficient performance. Co-counsel Adams, for
example, “thought that the Judge would probably give [Gibson] death.”
PCR Tr. Vol. II, p.181. Likewise, Dennis was “adamantly opposed” to the
plea and English thought it was “a terrible idea.” PCR Tr. Vol. II, pp. 156,
159–60. But, as with other arguments posed by Gibson, this narrative
paints only a partial picture of the defense team’s deliberations. As Biggs
testified, even English acknowledged the “lousy jury.” PCR Tr. Vol. I,
p.75. And while Adams believed it was likely that the trial court would
impose a death sentence, he concurred with Biggs’s assessment that the
potential jurors were “very antithetical” to Gibson, and considerably more
unfavorable than those picked in Gibson I. PCR Tr. Vol. I, pp. 69–70, 72,
179–80.
Even if trial counsel’s advice were deficient, Gibson fails to show “a
reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Lockhart, 474
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U.S. at 59. He simply insists that, but for counsel’s deficient advice, he
would have proceeded to trial. 11 But a defendant’s alleged propensity to
heed his attorney’s advice, without more, falls short of the prejudice
standard. Gibson never testified—or even appeared—at his post-
conviction hearing, and he never indicated the motivations for his guilty
plea.
III. Trial counsel operated under no conflict of
interest.
Finally, Gibson argues that his cases proceeded under a conflict of
interest, the loyalties of trial counsel divided between Gibson himself and
the Floyd County Public Defender’s Office. Effective legal representation
in a resource-consuming capital case, Gibson contends, stands
irreconcilably at odds with trial counsel’s duty, as Chief Public Defender,
to ensure the efficient administration of public funds. As evidence of this
conflict, Gibson cites several of the alleged deficiencies in representation
discussed above. He also points to a proposed 2013 amendment to
Criminal Rule 24. Drafted by the Indiana Public Defender Commission,
that amendment would have prohibited the appointment of a chief public
defender to a capital case. See PCR Ex. Vol. 12, pp. 8–10.
11Gibson characterizes the prosecutor’s proposal as a mere “suggestion” rather than a formal
plea offer, the implication being that trial counsel should never have presented it to Gibson
for consideration to begin with. Appellant’s GII Br. at 63 (citing Schmid v. State, 972 N.E.2d
949, 953–54 (Ind. Ct. App. 2012) (counsel’s failure to communicate a “possible compromise”
with no firm written offer did not amount to IAC)). But this point is a non sequitur, as
counsel’s advice to plead guilty—whether prompted by the prosecutor’s offer (or suggestion)
or by the defense team’s own strategic reasoning—fell within the realm of effective assistance
of counsel. Furthermore, the ABA Guidelines on which Gibson relies specifically urge counsel
to “inform the client of any tentative negotiated agreement reached with the prosecution, and
explain to the client the full content of the agreement along with the advantages,
disadvantages and potential consequences of the agreement.” ABA Guidelines § 10.9.2(D)
(emphasis added). That’s precisely what counsel did here.
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A. The standard Strickland analysis applies to Gibson’s
conflict-of-interest claim.
The constitutional right to effective assistance of counsel includes
representation free from conflicts of interests. Wood v. Georgia, 450 U.S.
261, 271 (1981) (citations omitted). A conflict-of-interest claim is a category
of an IAC claim. Strickland, 466 U.S. at 692. But, unlike in traditional IAC
challenges, a defendant generally need not show prejudice to prevail in a
conflict-of-interest claim. Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980).
Rather, a limited presumption of prejudice applies when the defendant
shows “that an actual conflict of interest adversely affected his lawyer’s
performance.” 12 Id. at 348. The reason for this presumption stems in part
from the difficulty of measuring the precise effect the conflict has on
counsel’s representation. Strickland, 466 U.S. at 692.
Conflict-of-interest claims typically arise when counsel represents
multiple defendants in the same case. See Wayne R. LaFave et al., 3 Crim.
Proc. § 11.9(a) (4th ed. 2018). Indeed, the concurrent representation of co-
defendants is “fraught with the potential for chaos” and “should be
avoided as the plague.” Ross v. State, 268 Ind. 608, 611, 377 N.E.2d 634, 636
(1978). For example, codefendants may raise conflicting defenses, with one
implicating the other. Or, in the plea bargaining process, one defendant
may offer testimony against the other in exchange for a lesser charge or
reduced sentence. LaFave, 3 Crim. Proc. § 11.9(a).
But conflicts of interest may threaten the effective assistance of counsel
in other contexts as well. For example, a conflict may arise because of
counsel’s representation of a hostile witness, because of counsel’s personal
legal problems, or because of counsel’s previous role as judge pro tempore
in the same case. See, respectively, Cowell v. State, 275 Ind. 252, 254, 416
12The Court in Strickland referred to the Cuyler standard as a “limited” presumption of
prejudice—not quite a per se rule of prejudice but a lesser standard than ordinary IAC claims.
466 U.S. at 692.
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N.E.2d 839, 841 (1981); Thompkins v. State, 482 N.E.2d 710 (Ind. 1985);
Hennings v. State, 638 N.E.2d 811 (Ind. Ct. App. 1994), trans. denied.
Not all conflicts of interest, however, present the same concerns. Unlike
the high risk of harm imposed on at least one client in multiple-
representation cases, a conflict implicating counsel’s personal interests
only (e.g., media rights or future referrals) need not compromise the duty
of loyalty—that is, counsel may still act in the client’s best interest even if
detrimental to counsel’s best interest. So, the question is whether a
particular conflict-of-interest claim warrants application of the lower
burden under Cuyler or the traditional prejudice standard under
Strickland.
With the few exceptions noted above, Indiana Courts have long been
reluctant to depart from traditional IAC analysis beyond multiple-
representation conflicts. See, e.g., Johnson v. State, 948 N.E.2d 331, 334 (Ind.
2011) (rejecting the conflict-of-interest exception to Strickland where there
was no “other client or interest to which counsel owed a [conflicting] duty
of loyalty”); McGillem v. State, 516 N.E.2d 1112, 1113 (Ind. Ct. App. 1987)
(applying Strickland prejudice standard despite defendant’s conflict-of-
interest claim against trial counsel who also served as city attorney). This
approach reflects the general view taken by the U.S. Supreme Court. See
Mickens v. Taylor, 535 U.S. 162, 175–76 (2002) (questioning the propriety of
extending the Cuyler standard beyond multiple-representation conflicts);
Holleman v. Cotton, 301 F.3d 737, 742–43 (7th Cir. 2002) (stating that
Mickens “has cast doubt” on whether Cuyler should even apply to
successive-representation cases).
Without deciding whether Cuyler applies exclusively to multiple-
representation conflicts, we hold that Gibson’s conflict-of-interest claim
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falls under our standard Strickland analysis for prejudice. 13 We reach this
conclusion for several reasons.
First, Gibson’s claim is essentially a repackaging of his IAC arguments
above. Indeed, as evidence of counsel’s alleged conflict, Gibson cites (1)
the delay in assembling the investigative defense team, (2) the lack of
preparation for jury selection, (3) the failure to consult with and
adequately prepare qualified mental-health experts for mitigation at
sentencing, and (4) the failure to consult with an expert to properly assess
the reliability of Gibson’s statements to police. If we were to apply the
Cuyler standard to every case involving similar claims, the exception
would effectively swallow the Strickland rule. See Beets v. Scott, 65 F.3d
1258, 1297 (5th Cir. 1995) (coming to the same conclusion).
Second, our conclusion follows precedent implicating similar claims.
See Brown v. State, 698 N.E.2d 1132, 1145, 1145 n.17 (Ind. 1998) (applying
Strickland standard rather than Cuyler standard in rejecting defendant’s
argument that insufficient resources from “the Lake County public
defender system created a conflict of interest for her trial counsel”);
Johnson v. State, 693 N.E.2d 941, 953 (Ind. 1998) (“Irrespective of whether
there were problems with the public defender system, in order to claim
ineffective assistance of counsel, [defendant] must show that his trial
counsel provided deficient performance and that it was prejudicial.”)
And, finally, regardless of the financial burden imposed on the county,
trial counsel’s undivided loyalty remained with Gibson. See Henson v.
State, 798 N.E.2d 540, 543 n.3 (Ind. Ct. App. 2003) (noting that public
defenders’ “allegiance lies with the clients they represent,” not with “the
State or any employee of the State”) (internal quotations omitted), trans.
13To be sure, our Rules of Professional Conduct prohibit a lawyer from representing a client if
there’s “a significant risk that the representation . . . will be materially limited by the lawyer’s
responsibilities to . . . a former client or a third person or by a personal interest of the lawyer.”
Ind. Professional Conduct Rule 1.7(a)(2). But while these rules offer general guidelines to
avoid a potentially-broad range of conflicts, the “[b]reach of an ethical standard does not
necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.”
Mickens v. Taylor, 535 U.S. 162, 176 (2002) (internal quotation marks omitted).
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denied; Wright v. State, 436 N.E.2d 335, 338–40 (Ind. Ct. App. 1982) (noting
the Sixth Amendment requires the state to “respect the independence of
the public defender” and the code of professional responsibility requires
attorneys to resist outside pressure, even from third parties who pay for
the defendant’s representation). See also Wisehart, 693 N.E.2d at 56–57
(holding that the alleged “lack of independence” attendant to “the
political nature of appointments of public defenders” does not create a
presumption of ineffective assistance based on a conflict of interest).
B. There is no evidence that insufficient resources
rendered trial counsel ineffective or resulted in
prejudice to Gibson.
Applying the standard Strickland analysis to Gibson’s claim, we find
neither deficient performance nor prejudice.
The thrust of Gibson’s argument is that trial counsel delayed the hiring
of his defense team to qualify for reimbursement of expenses under
Criminal Rule 24. That delay, he insists, resulted in a deficient mitigation
strategy throughout the proceedings—from the pre-trial level to
sentencing. But, as previously discussed, see supra section I.B., this
contention contradicts the record, which shows that trial counsel and his
defense team began work on the cases soon after their appointments.
Additionally, we have consistently concluded throughout this opinion
that counsel’s performance met the prevailing professional norms.
And to the extent there was a delay, we find no prejudice to Gibson.
Biggs testified that working toward compliance with Criminal Rule 24’s
caseload requirements had no effect on his ability to represent Gibson.
Indeed, had the trial court concluded otherwise, it would have revoked
Gibson’s appointment as lead defense counsel. See Ind. Crim. Rule
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24(B)(3)(d). 14 As for expenses, Biggs testified that “no one [had] ever
questioned the cost” of defending Gibson and he never felt “pressure from
anyone to save the county money when determining the needs of Mr.
Gibson’s defense.” PCR Tr. Vol. I, p.45. Biggs repeated this chorus several
times in his testimony, adding that no claim for reimbursement of
expenses—totaling over $686,000—was ever denied or paid untimely. 15
While obligated not to squander public funds, Biggs considered himself
“morally bound, ethically bound to spend whatever . . . is reasonable to
spend in a capital case.” PCR Tr. Vol. I, p.47. And in defending Gibson, he
added, “[a]ll the money was spent because there was a need.” Id.
To be sure, other members of the defense team offered conflicting
testimony. Adams indicated that funding in Floyd County was generally
“tight.” PCR Tr. Vol. I, p.170. And Streib stated that “Biggs was worried
about the public defender’s office funding” and that he had a hard time
getting paid on a “timely basis.” PCR Tr. Vol. II, pp. 144, 148. But this
conflict in testimony does not lead “unmistakably and unerringly” to a
conclusion reached opposite that of the post-conviction court. Ben-Yisrayl,
738 N.E.2d at 258.
Based on the actual expenditures in representing Gibson and the
employment of co-counsel, an investigator, a mitigation specialist, experts,
and other consultants, we have little doubt that Gibson received quality
14In 2013, this Court amended Rule 24, not by prohibiting the appointment of a chief public
defender to a capital case (as the Indiana Public Defender Commission had proposed) but
rather by placing certain limits on these appointments. See Order Amending Indiana Rules of
Criminal Procedure, No. 94S00-1301-MS-30 (Ind. May 29, 2013), available at
https://www.in.gov/judiciary/files/order-rules-2013-94s00-1301-ms-30b.pdf. Under the revised
rule, a court, before appointing a chief or managing public defender to represent a capital
defendant, must assess the impact of the appointment on the workload of the attorney,
including their administrative duties. See id. (codified at Ind. Crim. Rule 24(B)(3)(b)).
15For Gibson’s capital case, Floyd County received reimbursement for 50% of expenditures
from the Indiana Public Defender Commission. For Gibson’s non-capital case, the county
received 40%.
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representation, not ineffective assistance of counsel prejudicial to his
defense.
Conclusion
For the reasons specified above, we affirm the post-conviction court’s
denial of relief in both Gibson I and Gibson II. 16
Rush, C.J., and David and Goff, JJ., concur.
Slaughter, J., not participating.
16We decline to review Gibson’s argument that trial counsel’s deficiencies resulted in
cumulative prejudice. An appellate court may assess whether the “prejudice accruing to the
accused” from counsel’s individual errors “has rendered the result unreliable, necessitating
reversal under Strickland’s second prong.” Weisheit v. State, 109 N.E.3d 978, 992 (Ind. 2018)
(internal quotations omitted). But here, Gibson’s arguments overlap to such an extent that a
separate analysis on cumulative error would be superfluous. Indeed, the common thread
running through most of his claims is that trial counsel’s delay resulted in the inadequate
development and presentation of mitigating evidence. And to the extent his remaining
arguments break from this pervasive theory, we agree with the State that Gibson fails to
“explain how one particular deficiency worked with another to create unique prejudice.”
State’s GII Br. at 65.
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ATTORNEY FOR APPELLANT
Stephen T. Owens
Public Defender of Indiana
Deidre R. Eltzroth
Joanna L. Green
Steven Schutte
Lindsay C. Van Gorkom
Laura L. Volk
Deputy Public Defender
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Tyler G. Banks
Andrew A. Kobe
Kelly A. Loy
Denise A. Robinson
Deputy Attorneys General
Indianapolis, Indiana
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