The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Jul 30 2019, 9:22 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Russell W. Brown, Jr. Curtis T. Hill, Jr.
King, Brown & Murdaugh, LLC Attorney General of Indiana
Merrillville, Indiana
Ellen H. Meilaender
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason Tibbs, July 30, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-1085
v. Appeal from the LaPorte Circuit
Court
State of Indiana, The Honorable Thomas J.
Appellee-Respondent. Alevizos, Judge
Trial Court Cause No.
46C01-1705-PC-9
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 1 of 14
Statement of the Case
[1] Jason Tibbs appeals the post-conviction court’s denial of his petition for post-
conviction relief. Tibbs raises two issues for our review, which we consolidate
and restate as whether the post-conviction court clearly erred when it concluded
that Tibbs had not received ineffective assistance from his trial attorneys.
[2] We affirm.
Facts and Procedural History
[3] The facts underlying Tibbs’s conviction for murder were stated by our Court in
his direct appeal:
On March 26, 1993, sixteen-year-old Rayna Rison was working
at the Pine [L]ake Veterinary Hospital (“the clinic”) in LaPorte
County. She had a date scheduled that evening with her
boyfriend, Matt Elser. Rison was scheduled to finish work at
approximately 6:00 p.m., and Elser was waiting for Rison at her
house. When Rison failed to return home, Elser called the clinic
and then began looking for her. Elser first went to the clinic and
noticed Rison’s car was not there.
At approximately 7:30 p.m. that same day, someone observed
what would later be identified as Rison’s car parked along a road
with its hood up. The police recovered the car the next day.
Inside, police found a ring, which was later identified as
belonging to Tibbs. On April 27, 1993, Rison’s dead body was
discovered in a pond. The forensic pathologist who performed
Rison’s autopsy concluded the cause of her death was asphyxia
due to cervical compression—strangulation—and that her death
was a homicide.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 2 of 14
Tibbs and Rison were friends and dated briefly in middle school
or junior high school. By 1993, Tibbs had dropped out of high
school but was still in touch with Rison and still had strong
romantic feelings for her. On the day Rison disappeared, Tibbs
contacted his friend Eric Freeman in the late afternoon and asked
Freeman to pick him up and drive him to the clinic. Freeman
borrowed his girlfriend Jennifer Hammons’s (“Jennifer”) Buick
and picked Tibbs up at his house. Tibbs had previously
introduced Rison to Freeman as his girlfriend, and, on the day
Rison disappeared, Tibbs told Freeman he “wanted to try to
work things out with [Rison].”
When Freeman and Tibbs arrived at the clinic, Tibbs went inside
to speak with Rison. After a short time, Tibbs and Rison came
out of the clinic and talked; then they began to argue about their
relationship. Tibbs and Rison got in the back seat of Jennifer’s
car, and the three “went driving.” Tibbs and Rison continued
arguing. Either Tibbs or Rison asked Freeman to pull over. He
did, and Tibbs and Rison got out and continued arguing behind
the car. According to Freeman, Rison “just didn’t want to be
with [Tibbs].” At some point, Freeman got out of the car and
told Tibbs and Rison that he wanted to leave. Tibbs and Rison
continued to argue, and Freeman observed Tibbs hit Rison then
choke her with his hands. Freeman got back in the car, and
Tibbs told him to open the trunk. Tibbs put Rison in the trunk,
and Freeman drove back to the home of Rick and Judy
Hammons, Jennifer’s parents, where Freeman lived at the time.
When they arrived, Freeman parked the car in the Hammonses’
pole barn. Freeman and Tibbs argued, and Tibbs stated, “If I
can’t have her nobody can.” After a short time, they left to get
Rison’s car. After Freeman and Tibbs left the Hammonses’ barn,
they returned to the clinic. Tibbs drove Rison’s car away, and
Freeman followed him in Jennifer’s car. Together, the men
dumped Rison’s body in a pond, and Tibbs weighed it down with
logs. Freeman, alone, then returned to the Hammonses’ house in
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 3 of 14
Jennifer’s Buick. Later that evening, Tibbs stopped by the
Hammonses’ house, and Freeman gave him the letter jacket that
had been left in the back seat of the Buick. The jacket was later
discovered hanging in a tree and identified as belonging to Elser.
Unbeknownst to Freeman and Tibbs, Rickey Hammons
(“Rickey”), Rick and Judy Hammons’s fourteen-year-old son,
was in the loft of the barn smoking marijuana when they arrived
at the Hammonses’ property. Rickey observed someone back
Jennifer’s car into the pole barn. He saw Tibbs close the barn
doors and Freeman get out of the driver’s seat. Rickey heard
Freeman and Tibbs arguing and saw Freeman open the trunk of
the car. Rickey saw a young, white woman in the trunk. “She
was an off color, like—she wasn’t moving. She was—I don’t
know. She didn’t look like she had a lot of color in her face.”
Rickey did not say anything to Freeman and Tibbs. After the
men argued about what to do next, Rickey saw them leave in the
car. When Rickey saw Rison’s picture in the newspaper the next
day, he recognized her as the girl he saw in the trunk of his
sister’s car. He did not tell anyone about what he saw in the pole
barn.
Ray McCarty was Rison’s brother-in-law. He was married to
Rison’s sister Lori McCarty (“Lori”). In 1991, McCarty
plead[ed] guilty to Class D felony child molesting. Rison was the
victim, and she became pregnant as a result of that molestation.
McCarty was sentenced to serve three years on probation and
was still on probation when Rison was killed. McCarty was
indicted for Rison’s murder near the time she was killed, but the
State later dismissed the charges.
For fifteen years, Rison’s murder remained unsolved. In 2008,
Rickey, who now was serving a sentence for an unrelated
murder, contacted the police in order to tell them what he saw in
his parents’ barn in 1993. Rickey testified he neither received nor
sought any benefit in exchange for his testimony. As a result of
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 4 of 14
Rickey’s information, investigators located Freeman and granted
Freeman immunity in exchange for the information he had
regarding Rison’s murder. In 2013, the State charged Tibbs with
murder. Freeman gave eyewitness testimony against Tibbs
during Tibbs’s trial.
McCarty testified during Tibbs’s case-in-chief that at
approximately 5:40 or 5:45 p.m. on the night Rison disappeared,
he looked at a house for sale directly across the street from the
clinic. McCarty testified that after he left the house, he drove to
the clinic to ask Rison if she knew where Lori was. McCarty
testified the exchange with Rison took “[h]alf a minute,” and
then he left the clinic. McCarty admitted he told police more
than one story regarding his whereabouts the night Rison
disappeared. McCarty stated that he initially lied to police in
order to prevent Lori from learning he had picked up a female
hitchhiker that night because it might upset her. McCarty
testified he did not threaten to harm Rison if she told anyone
about his illegal sexual contact with her. Lori testified she did
not recall telling a police officer that she vacuumed out the back
of McCarty’s car before police searched it, nor did she remember
McCarty asking her to do so.
During his trial, Tibbs attempted to ask Officer Timothy Short,
who interviewed both McCarty and Lori, whether McCarty
asked Lori to vacuum out his car before the police searched it.
The trial court sustained the State’s objection to the question.
Tibbs also sought to question McCarty about the details of his
divergent stories to police, but the trial court prohibited him from
doing so.
During an offer of proof, McCarty testified he was indicted for
Rison’s murder but was not tried. He also testified that he
initially told police he was at a pig farm in the southern part of
the county around or at the time Rison disappeared. As part of
his offer of proof, Tibbs offered Rison’s 1989 statement to police
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 5 of 14
regarding McCarty’s molestation. The statement states,
“[McCarty] said that ‘if I didn't do as he asked of me he would
hurt me, and he said that if I ever told, he would KILL me.’”
Detective Brett Airy, who began re-investigating Rison’s death in
2008, testified during an offer of proof that he reviewed the
reports made during the original murder investigation. He
testified McCarty did not admit he had contact with Rison at the
clinic until May 11, 1993, approximately six weeks after Rison
disappeared, and further testified about the details of McCarty’s
differing stories regarding his whereabouts at the time Rison
disappeared.
In November 2014, a jury found Tibbs guilty of murder. The
trial court sentenced Tibbs to forty years in the Department of
Correction. . . .
Tibbs v. State, 59 N.E.3d 1005, 1008-11 (Ind. Ct. App. 2016) (alterations in
original; citations to the record omitted), trans. denied (“Tibbs I”).
[4] On direct appeal, Tibbs raised three issues for our review: “whether the trial
court abused its discretion by excluding evidence of an alleged third-party
perpetrator,” namely, McCarty; “whether the trial court abused its discretion by
excluding impeachment evidence” relating to Freeman’s interview with
Detective Airy; and “whether the trial court properly denied Tibbs’s Trial Rule
60(B) motion for relief from judgment,” which he had filed on the ground that
Rickey had, contrary to his testimony at trial, received a benefit from the State
for that testimony. Id. at 1008.
[5] We affirmed Tibbs’s conviction. On the first issue, we held as follows:
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 6 of 14
the evidence Tibbs sought to introduce—that McCarty was
indicted for Rison’s murder; that in 1989 Rison reported
McCarty threatened to kill her if she disclosed he sexually
molested her; that McCarty allegedly asked Lori to clean out his
car; and the details of McCarty’s conflicting statements related to
his whereabouts around the time Rison disappeared—was
neither sufficiently exculpatory nor relevant evidence of a third-
party perpetrator. None of the excluded evidence made it less
probable that Tibbs murdered Rison or that McCarty was
responsible for her murder as required under Rule of Evidence
401.
Id. at 1013. We further stated:
Assuming, without deciding, that the trial court’s exclusion of the
fact that McCarty was indicted for Rison’s murder did somehow
infringe on Tibbs’s rights to confront and cross-examine, we
conclude such error was harmless. McCarty’s testimony was not
central to (or even part of) the prosecution’s case against Tibbs,
and the State’s case against Tibbs was extremely strong and
included eyewitness testimony. We also note that Tibbs did
successfully present evidence from which the jury could have
concluded McCarty harbored a bias or motive to testify the way
he did. We therefore conclude beyond a reasonable doubt that
the presumed error did not contribute to the verdict.
Id. at 1015.
[6] We addressed Tibbs’s second issue, regarding the alleged impeachment
evidence, as follows:
Tibbs next contends the trial court abused its discretion by
excluding from evidence the transcript of Freeman’s 2013
interview with Detectives Brett Airy and Al Williamson, which
Tibbs states he sought to admit in order to impeach the veracity
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 7 of 14
of the investigation. Tibbs concedes he did not submit his
proposed evidence in an offer of proof and that we must review
his claim for fundamental error.
***
In his Appellant’s Brief, Tibbs states he attempted to introduce
the transcript in order to impeach the veracity of the
investigation. He argues that the transcript contradicts Detective
Airy’s testimony that neither he nor Detective Williamson asked
leading questions or suggested answers during Freeman’s 2013
interview and that the transcript “calls into serious question
whether Freeman’s testimony was based upon what he said he
witnessed as opposed to the details of the investigation that the
detectives shared with him during the subject interview.” But
Tibbs’s line of questions for Detective Airy at the time he sought
to introduce the transcript provides no support for his argument
on appeal. . . . Tibbs concluded that line of questioning by
inquiring whether Detective Airy or Detective Williamson asked
Freeman leading questions or suggested answers during his 2013
interview. But Tibbs did not attempt to introduce the transcript
again, nor did he explain why he wanted to do so in the first
place.
In his Appellant’s Brief, Tibbs highlights several instances in the
interview during which he contends the detectives “lead
[Freeman] through his statement.” We note that in these
portions of the interview Freeman gave answers (e.g., about the
type of car he was driving when he took Tibbs to the clinic and
the time he took Tibbs to the clinic) that differ from his trial
testimony. We also note that Freeman admitted during his trial
testimony that he was “scared and nervous” during his interview
and that “at the end of [the interview]” he was honest and
truthful. We further note that, although Tibbs cross-examined
Freeman regarding some of the discrepancies between his 2013
interview and his trial testimony, he did not attempt to introduce
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 8 of 14
the transcript of the 2013 interview as impeachment evidence
when he cross-examined Freeman.
Based on our review of the record, it is not clear why Tibbs
sought to have the transcript of Freeman’s 2013 interview
admitted into evidence during Detective Airy’s testimony. To
the extent his purpose was to highlight what he thinks were
questionable interviewing techniques and impeach the officers’
investigation, we conclude he has waived that argument because
there is no support for it in the record. To the extent his purpose
was to impeach Freeman’s testimony, we again conclude Tibbs
has waived that argument because he did not introduce the
exhibit at the appropriate time. Alternatively, we conclude the
trial court’s exclusion of the transcript did not prejudice Tibbs
because the jury was aware that Freeman was not consistently
forthright during his interview and because Tibbs had, and took
some advantage of, the opportunity to cross-examine Freeman
regarding his inconsistent statements. We conclude the
exclusion of the transcript did not infringe on Tibbs’s right to a
fair trial and, therefore, does not rise to the level of fundamental
error.
Id. at 1015-17 (alterations in original; citations to the record and footnote
omitted). We also rejected Tibbs’s third argument regarding the trial court’s
denial of his motion to correct error.
[7] Thereafter, Tibbs filed his petition for post-conviction relief. In that petition,
Tibbs alleged that he had been denied the effective assistance of trial counsel.
In particular, he alleged that his “[t]rial counsel failed to present scientific
evidence that fibers from Ray McCarty’s vehicle were found in Rayna Rison’s
hair.” Appellant’s App. Vol. 2 at 12. That purported “scientific evidence” was
an FBI analysis conducted in the 1990s. Id. According to Tibbs, the failure of
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 9 of 14
his trial attorneys to introduce that evidence at his trial in 2014 “prevented
Tibbs from presenting more compelling evidence of third party guilt” against
McCarty. Id. Tibbs further alleged that his “[t]rial counsel failed to
adequately” preserve in the record “the transcript of Freeman’s interview with
the detectives,” which, according to Tibbs, “forced [Tibbs] to overcome the
heightened standard of fundamental error on appeal.” Id.
[8] The post-conviction court held a fact-finding hearing on Tibbs’s petition.
Following that hearing, the court entered findings of fact and conclusions of
law denying Tibbs’s petition. In its findings and conclusions, the post-
conviction court stated in relevant part as follows:
9. [Tibbs’s trial attorney John] Thompkins testified he was aware
of the FBI “walking back” its findings [regarding fiber analyses]
as a result of the National Academy of Forensic Science’s 2009
article during [Thompkins’s] trial preparation, and that a
substantial challenge to [the FBI’s findings here] was likely.
10. Victim Rison’s sister and wife of Ray McCarty, Lori
McCarty, testified that Victim Rison frequently visited and
stayed at the McCarty residence[] and also was a regular
passenger in their vehicles.
11. The probative value of the “fiber evidence” . . . is diminished
by: the discrediting of forensic conclusions made prior to the
National Academy of Forensic Sciences report published in 2009;
and that the Victim’s sister testified that Victim Rison was a
frequent guest and at times lived at the McCarty residence.
***
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 10 of 14
14. Because of the deference attorneys receive in creating trial
strategy and the dispute in probative value of the fiber
analysis . . . , this Court finds that the defense counsel’s judgment
to not include . . . [the] fiber analysis is reasonable.
***
17. [Tibbs] relies on the substance of [Freeman’s interview with
Detective Airy] in order to attack Witness Freeman’s credibility.
18. Reliance on the substance of the interview and the ensuing
analysis of whether the transcripts of that interview were proper
in its inclusion or exclusion generates a result that either an
Abuse of Discretion or a Fundamental Error standard applies in
reviewing the Trial Court’s decision.
19. No matter which path is taken, a finding of prejudice must
occur . . . .
20. . . . [W]hich analysis applies is irrelevant because the jury
was aware of Witness Freeman’s lack of candor and honesty in
the police detective interviews. Additionally, [Tibbs] availed
himself of the opportunity to cross-examine Witness Freeman
about the prior inconsistent statements.
***
24. The jury’s knowledge of Witness Freeman’s prior
inconsistencies, the attempt to impeach by the Defense, and that
Witness Freeman’s testimony was corroborated by
overwhelming evidence all lead inevitably to two findings: that
[Tibbs] was not prejudiced by the exclusion of Witness
Freeman’s transcript; and that the jury’s findings were reasonably
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 11 of 14
based on the evidence such that any mistake argued by the
Petitioner cannot [now] be said to have influenced the outcome.
Id. at 69-72. This appeal ensued.
Discussion and Decision
[9] Tibbs appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review in such appeals is clear:
“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
“When appealing the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. at 274. In order to prevail on an appeal from the
denial of post-conviction relief, a petitioner must show that the
evidence leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case entered findings of fact and
conclusions of law in accordance with Indiana Post-Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (internal quotation omitted).
Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).
[10] Tibbs asserts that he received ineffective assistance from his two trial attorneys.
As our Supreme Court has explained:
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 12 of 14
When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the defendant must show deficient performance:
representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant
did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Id. at 682.
[11] In particular, Tibbs argues that his trial attorneys were ineffective for two
reasons. First, he asserts that they ineffectively failed to have the FBI’s 1990s
fiber analysis admitted as evidence at his 2014 trial. Second, he asserts that
they failed to more thoroughly impeach Detective Airy with the transcript of his
interview with Freeman, which resulted in our court reviewing that issue under
the heavy burden of fundamental error.
[12] Assuming only for the sake of argument that a reasonable trial attorney would
have done either of those things, Tibbs cannot show that the result of his trial or
direct appeal would have been different had his attorneys done so. There is no
dispute that the forensic fiber analysis conducted by the FBI here was based on
flawed methodologies and that, prior to Tibbs’s 2014 jury trial, it was well
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 13 of 14
known that those analyses were not reliable. A reasonable juror would not
have disregarded the overwhelming evidence of Tibbs’s guilt for the sake of a
flawed and unreliable fiber analysis.
[13] Neither would a reasonable juror have ignored the evidence of Tibbs’s guilt had
his attorneys used the transcript of Detective Airy’s interview with Freeman to
more precisely critique Detective Airy on his interviewing techniques. Had
Tibbs’s trial counsel preserved that issue for our review, we would have held
that reversal was not required because the evidence before the jury of Tibbs’s
guilt was so overwhelming that that transcript would not have mattered. See,
e.g., Williams v. State, 43 N.E.3d 578, 583-84 (Ind. 2015). As we said in Tibbs I,
the State’s evidence against Tibbs was “extremely strong.” 59 N.E.3d at 1015.
Thus, Tibbs’s claim of ineffective assistance must fail as he cannot show
prejudice resulting from any error his trial attorneys may have made on this
issue.
[14] The post-conviction court did not err when it denied Tibbs’s petition for post-
conviction relief. Tibbs cannot show that either of the purported bases for his
ineffective assistance of counsel claims would have been likely to result in
different outcomes than those he received. Accordingly, we affirm the post-
conviction court’s judgment.
[15] Affirmed.
Bailey, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019 Page 14 of 14