Argued: January 10, 2019
from the Floyd County Superior Court, Nos. 22D01-1606-PC-4,
22D01-1703-PC-4 The Honorable Susan L. Orth
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
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
Justice Rush, Justice David, and Justice Goff concur. Justice
Slaughter not participating.
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.
and Procedural History
Murders, and Arrest
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
own. A later search of the vehicle revealed Whitis's
severed breast lying in the center console.
Confessions, Charges, and Appointment of Defense
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.
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.
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
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.
Pleas, Convictions, and Sentencing
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).
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.
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 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).
Proceedings and Appeals
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.
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.). 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.
Standard of Review
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).
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
address each of these arguments in turn.
I. Trial counsel was not ineffective.
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
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.
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
A. There was no unreasonable delay in legal
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.
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
reasons below, we find no merit in this IAC claim.
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. PCR Ex. Vol. 12, 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
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.
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.
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.
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.
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.
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, Gibson cites the defense team's low
number of billable hours following their retention. We
disagree and find no deficient performance.
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.
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.
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.
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.
Preparation for Jury Selection
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 ...