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Gibson v. State

Supreme Court of Indiana

October 24, 2019

William Clyde Gibson, III Appellant (Defendant)
State of Indiana Appellee (Plaintiff)

          Argued: January 10, 2019

          Appeal from the Floyd County Superior Court, Nos. 22D01-1606-PC-4, 22D01-1703-PC-4 The Honorable Susan L. Orth

         On Direct Appeal

          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

          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 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.

          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 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.

          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.

          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'").

          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, 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.

          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, 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.

          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 ...

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