William Clyde Gibson, III v. State of Indiana

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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