MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 16 2018, 10:59 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana
Joanna L. Green Kelly A. Loy Laura L. Volk Supervising Deputy Attorney Deidre R. Eltzroth General Lindsay Van Gorkom Deputies Public Defender Tyler G. Banks Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
William Clyde Gibson, July 16, 2018 Appellant-Petitioner, Court of Appeals Case No. 22A01-1711-PC-2528 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Susan L. Orth, Appellee-Respondent. Judge Trial Court Cause No. 22D01-1703-PC-4
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 1 of 25 Altice, Judge
Case Summary [1] William Clyde Gibson, III, pled guilty to the murder of Karen Hodella and was
sentenced to sixty-five years in the Department of Correction (DOC). Gibson
filed a petition for post-conviction relief and appeals the denial of that petition.
He raises several issues for our review, which we consolidate and restate as
whether the post-conviction court erred in denying his petition for relief.
[2] We affirm.
Facts & Procedural History [3] This appeal stems from Gibson’s murder of Hodella. However, resolution of
this case necessitates an account of the facts and procedural history surrounding
Gibson’s murders of two other women, Stephanie Kirk and Christine Whitis.
As such, we set forth an account of the facts and procedural history of all three
murders.
[4] On October 10, 2002, Hodella met Gibson at a bar located in Jeffersonville,
Indiana. Hodella left the bar with Gibson, and the two went to various other
bars, drank alcohol, and stayed together that night. At some point, Gibson and
Hodella were in a vehicle parked in an apartment complex parking lot in New
Albany, Indiana. The two began to argue when Hodella accused Gibson of
stealing some of her prescription medication. During the argument, Gibson hit
Hodella in the face. A struggle ensued, and Gibson took out his pocket knife
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 2 of 25 and stabbed Hodella in the throat multiple times. Gibson then drove around
before disposing of Hodella’s body. Hodella’s body was found on January 7,
2003; however, her case remained unsolved until April 2012.
[5] Gibson met Stephanie Kirk on March 24, 2012. The next day, he sexually
assaulted, strangled, and ultimately killed her. He then buried her body in his
backyard. On April 18, 2012, Gibson attacked and sexually assaulted,
strangled, and eventually killed seventy-five-year-old Christine Whitis, his late
mother’s best friend. On April 19, 2012, Whitis’s mutilated body was found in
Gibson’s garage by his sisters. In the hours after Whitis’s body was discovered,
police apprehended a drunk Gibson, who was driving Whitis’s vehicle.
[6] On April 20, 2012, New Albany Police Detective Carrie East interviewed
Gibson. After being read his Miranda rights, Gibson signed a waiver-of-rights
form and agreed to speak to police. He admitted killing Whitis and confessed
to murdering Hodella – a death for which he was not previously a suspect.
Over the next several days, the police continued to speak to Gibson at his
request, during which he confessed to Kirk’s murder. At the time of his
confession, the police did not know that Kirk was dead. Her body was
recovered from Gibson’s backyard.
[7] On April 24, 2012, the State charged Gibson with the murders of Whitis and 1 Hodella. On May 23, 2012, the State charged Gibson with the murder of Kirk
1 The State later dismissed the murder charge for Hodella and refiled it under a separate cause number.
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 3 of 25 and filed for the death penalty in the Whitis and Kirk cases. In October 2013,
Gibson was tried for the murder of Whitis. The jury returned a guilty verdict
on October 25, 2013, and unanimously recommended a sentence of death to
which Gibson was sentenced on November 26, 2013.
[8] A jury trial was scheduled to take place on October 27, 2014, in the Hodella
case. However, on March 20, 2014, Gibson pled guilty to the murder of
Hodella. Per the plea agreement, neither the fact of her murder nor the
conviction could be used as an aggravator in any other case, and the parties
agreed that Gibson would receive a sixty-five-year sentence. On April 17, 2014,
the trial court sentenced Gibson to sixty-five years in the DOC.
[9] The trial for the murder of Kirk was set to begin on June 2, 2014. Before the
trial began, however, Gibson pled guilty to murdering Kirk. Under the plea,
Gibson agreed to waive his right to a jury trial for the penalty phase, and further
agreed that the trial court alone would decide whether to sentence him to death,
life imprisonment without parole, or a term of years. After a four-day
sentencing hearing, the trial court, on August 15, 2014, imposed the death
penalty.
[10] Gibson appealed his convictions and sentences for the murders of Whitis and
Kirk, and our Supreme Court affirmed. See Gibson v. State, 43 N.E.3d 231 (Ind.
2015), cert. denied, and Gibson v. State, 51 N.E.3d 204 (Ind. 2016), reh’g
denied, cert. denied. He later filed a petition for post-conviction relief in the
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 4 of 25 2 instant case. The post-conviction court denied Gibson’s petition. He now
appeals. Additional facts will be provided as necessary.
Discussion & Decision
Standard of Review [11] The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Fisher v. State, 810
N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On
review, we will not reverse the judgment unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by
the post-conviction court. Id. Further, the post-conviction court in this case
entered findings of fact and conclusions thereon in accordance with P-C.R.
1(6). Id. “A post-conviction court’s findings and judgment will be reversed
only upon a showing of clear error – that which leaves us with a definite and
firm conviction that a mistake has been made.” Id. In this review, we accept
findings of fact unless clearly erroneous, but we accord no deference to
conclusions of law. Id. The post-conviction court is the sole judge of the
weight of the evidence and the credibility of witnesses. Id.
2 Gibson also filed post-conviction petitions challenging his convictions and sentences in the Whitis and Kirk cases. All three petitions were heard during a consolidated evidentiary hearing.
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 5 of 25 [12] Gibson urges this court to “employ ‘cautious appellate scrutiny’ when
considering the post-conviction court’s findings of fact and conclusions of law”
because the findings and conclusions entered are nearly identical to the
proposed findings submitted by the State. Appellant’s Brief at 13. In Prowell v.
State, 741 N.E.2d 704, 708-09 (Ind. 2001), our Supreme Court acknowledged
that a trial court’s verbatim adoption of a party’s proposed findings may have
important practical advantages and expressly declined to prohibit the practice.
The court noted, however, that the wholesale adoption of one party’s findings
results in an “inevitable erosion of the confidence of an appellate court that the
findings reflect the considered judgment of the trial court.” Id. at 709.
[13] We note that in the instant case, there are some differences between the State’s
proposed findings and those entered by the post-conviction court, and that the
post-conviction court’s extensive findings and conclusions (thirty pages in total)
addressed all of the claims set forth in Gibson’s petition. As such, we decline
Gibson’s invitation to modify our standard of review. See, e.g., Stevens v. State,
770 N.E.2d 739, 762 (Ind. 2002) (court declined to hold post-conviction court’s
utilization of State’s proposed findings constituted failure to provide full, fair,
unbiased adjudication of post-conviction claims where findings and conclusions
extensively addressed all claims, and post-conviction court “added two
sentences to one issue, a couple of paragraphs to another, and corrected some
of the misspellings” in State’s proposed findings and conclusions).
[14] The basis of Gibson’s post-conviction relief petition is that his trial counsel
rendered ineffective assistance of counsel. Claims of ineffective assistance of
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 6 of 25 trial counsel are generally reviewed under the two-part test announced
in Strickland v. Washington, 466 U.S. 668 (1984); that is, a defendant must
demonstrate that his counsel’s performance fell below an objective standard of
reasonableness based on prevailing professional norms and that his counsel’s
deficient performance resulted in prejudice. Id. at 687-88. As for the first
component – counsel’s performance – we have observed that “‘[c]ounsel is
afforded considerable discretion in choosing strategy and tactics, and we will
accord that decision deference. A strong presumption arises that counsel
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.’” Pruitt v. State, 903 N.E.2d 899, 906 (Ind.
2009) (alteration in original) (quoting Lambert v. State, 743 N.E.2d 719, 730
(Ind. 2001)). As for the second component, prejudice occurs when the
defendant demonstrates that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. A reasonable probability arises when
there is a “probability sufficient to undermine confidence in the outcome.” Id.
[15] A claim may be disposed of on either part of the two-part Strickland test.
Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). An inability to satisfy
either part is fatal to an ineffective assistance claim. Vermillion v. State, 719
N.E.2d 1201, 1208 (Ind. 1999). Generally, we need not evaluate counsel’s
performance if the defendant has suffered no prejudice. And most ineffective
assistance of counsel claims can be resolved by a prejudice inquiry alone.
French v. State, 778 N.E.2d 816, 824 (Ind. 2002).
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 7 of 25 I. Illusory Guilty Plea [16] Gibson challenges his guilty plea. By way of background, Gibson pled guilty to
murdering Hodella on March 20, 2014. Per the plea agreement, neither the fact
of her murder nor the conviction could be used as an aggravator in any other
case, and the parties agreed that Gibson would receive a sixty-five-year
sentence. At the time of Gibson’s plea, the Kirk case was still pending. In that
case, the State (on May 23, 2012) had charged Gibson with Kirk’s murder,
alleged he was an habitual offender, and sought the death penalty based upon
the aggravating circumstance set forth under Ind. Code § 35-50-2-9(b)(8), that
Gibson committed another murder – namely, of Hodella. I.C. § 35-50-2-9(b)
lists the aggravating circumstances the State may allege in order to seek the
death penalty for murder. Subsection (b)(8) provides: “The defendant has
committed another murder, at any time, regardless of whether the defendant has 3 been convicted of that other murder.” (Emphasis added.)
[17] Gibson contends his guilty plea was not entered knowingly, intelligently, and
voluntarily because it was motivated by the State’s improper threat to use
Hodella’s murder as an aggravating circumstance to support the imposition of a
death sentence in the Kirk case. According to Gibson:
The threat of this aggravator was improper because, at the time [he] was offered and accepted the plea agreement, the State did
3 I.C. § 35-50-2-9(b)(8) is not to be confused with I.C. § 35-50-2-9(b)(7) which lists a separate aggravating circumstance the State may allege in order to seek the death penalty for murder, that is, “The defendant has been convicted of another murder.” (Emphasis added.)
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 8 of 25 not have the power under Indiana Code section 35-50-2-9(b)(8) to use Hodella’s murder to support the imposition of the death penalty in [the Kirk case] . . . [because] [t]he law is settled that, when the other murder alleged has not been reduced to a conviction, this aggravator only applies to multiple murders that are related and are tried in one proceeding.
Appellant’s Brief at 16. Gibson also argues that his counsel at trial, J. Patrick
Biggs and Amber Shaw, were ineffective for failing to advise him of the illusory
nature of his guilty plea.
[18] A plea bargain motivated by an improper threat is to be deemed illusory and a
denial of substantive rights. Champion v. State, 478 N.E.2d 681, 683 (Ind. 1985).
At the moment the plea is entered, the State must possess the power to carry
out any threat that was a factor in obtaining the plea agreement. Id. The lack
of that real power is what makes the threat illusory and causes the
representation to take on the characteristics of a trick. Id. “‘[A] threat by a
prosecutor to do what the law will not permit, if it motivates a defendant
ignorant of the impossibility, renders the plea involuntary.’” Munger v.
State, 420 N.E.2d 1380, 1387 (Ind. Ct. App. 1981) (quoting Lassiter v.
Turner, 423 F.2d 897, 900 (4th Cir. 1970), cert. denied).
[19] Our Supreme Court, in Segura v. State, 749 N.E.2d 496 (Ind. 2001), placed a
high burden upon defendants who are claiming that an improper punitive
threat compelled their guilty plea before that plea may be set aside. The court
stated:
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 9 of 25 Whether viewed as ineffective assistance of counsel or an involuntary plea, the postconviction court must resolve the factual issue of the materiality of the bad advice in the decision to plead, and postconviction relief may be granted if the plea can be shown to have been influenced by counsel’s error. However, if the postconviction court finds that the petitioner would have pleaded guilty even if competently advised as to the penal consequences, the error in advice is immaterial to the decision to plead and there is no prejudice.
Id. at 504-05. Relying upon Segura, this court later held, “when an error in
advice supports a claim of intimidation by exaggerated penalty, a petitioner
must establish specific facts that lead to the conclusion that a reasonable
defendant would not have entered a plea had the error in advice not been
committed.” Willoughby v. State, 792 N.E.2d 560, 564 (Ind. Ct. App. 2003),
trans. denied.
[20] Gibson’s particular claim on this point seems to be a hybrid of an outright claim
of involuntary or illusory plea and ineffective assistance of counsel.
Nevertheless, whether Gibson’s claim is of an involuntary plea or ineffective
assistance, he must demonstrate that the intimidation resulting from his trial
counsel’s failure to properly advise him was material to his decision to plead
guilty. See Segura, 749 N.E.2d at 504; see also Willoughby, 792 N.E.2d at 563
(stating “it is immaterial whether [a defendant’s] claim is of an involuntary plea
or ineffective assistance of counsel”).
[21] As evidence that his plea was induced by an improper threat, Gibson points us
to testimony of his defense attorneys. Biggs testified: “All I remember was the
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 10 of 25 main thing was [Gibson’s murder of Hodella] was not going to be used in the
Kirk case as an aggravator.” Post-Conviction Transcript Vol. I at 70. Shaw
testified:
And the concession that we got with the plea agreement was that it could then not be used in the death penalty cases as a prior circumstance, which was the main win as far as that goes. So that was the reason that we took the plea was because we got that concession from the State, that it could not be used against him for purposes of the death penalty.
Post-Conviction Transcript Vol. II at 115.
[22] Gibson is correct that the aggravator addressed in I.C. § 35-50-2-9(b)(8) is
applicable only in “cases involving double or multiple murders for which the
defendant is being tried in one proceeding.” Hough v. State, 560 N.E.2d 511,
519 (Ind. 1990). Gibson was charged for the murders under three separate
cause numbers. As such, the State could not carry out the threat of using the
I.C. § 35-50-2-9(b)(8) aggravator in another prosecution. Indeed, on April 4,
2014, fifteen days after Gibson pled guilty to the murder of Hodella, the State
acknowledged as much:
[B]ased upon our plea agreement that we had entered into approximately two weeks ago where we had agreed that we would not use the murder of Miss Hodella as an aggravating factor in [the Kirk] case. And [sic] I would also believe for that that we probably were prohibited by law, a[t] least case law. There was an argument that we could not use that, so we have removed that aggravating factor.
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 11 of 25 Transcript from Kirk Case Vol. I at 161-62. However, Hodella’s murder could
have been used as an aggravator for seeking the death penalty in the Kirk case
under I.C. § 35-50-2-9(b)(7), once the murder was reduced to a conviction and 4 without an agreement with the State to the contrary. Gibson’s acceptance of
the plea deal in the Hodella case foreclosed all use of this aggravator in future
prosecutions.
[23] Even assuming that the State’s threat to use the I.C. § 35-50-2-9(b)(8) aggravator
against Gibson was improper, Gibson still must show that such was material to
his decision to plead guilty. We find that Gibson has not met his burden.
[24] The record reveals that Gibson confessed numerous times to different
individuals to killing Whitis, Kirk, and Hodella, and the details of his
confessions were corroborated. He faced the death penalty in two of the three
cases. At the post-conviction hearing, defense counsel Biggs testified that “all
along Mr. Gibson just kind of wanted to get things over with . . . [;] he just
wanted to go ahead, admit everything, and take the death penalty.” Post-
Conviction Transcript Vol. I at 74. At the time Gibson pled guilty to murdering
Hodella, he had been convicted by a jury of murdering Whitis. There was
4 Under Ind. Code § 35-34-1-5, the State had the power to amend the charging information in the Kirk case and change the basis of the death penalty aggravator from Gibson committed the Hodella murder to Gibson had been convicted of the Hodella murder. See Appellant’s Appendix from Kirk Case Vol. I at 47; I.C. §§ 35-50-2- 9(b)(8), (b)(7); see also Gibson, 51 N.E.2d at 211 (the Kirk case) (holding trial court did not commit fundamental error when it allowed State to amend death penalty aggravator in charging information from “Gibson committed the Whitis murder to he had been convicted of it” on same day Gibson pled guilty to the Kirk murder).
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 12 of 25 overwhelming evidence of his guilt in the Hodella case. Gibson benefited
substantially by pleading guilty to the murder of Hodella. The plea agreement
insured that Gibson would avoid the death penalty and be sentenced to a term
of years.
[25] Gibson has not shown that that the State’s threat to use the I.C. § 35-50-2-
9(b)(8) aggravator was material to his decision to plead guilty. He has failed to
demonstrate that he would not have pled guilty even if properly advised
regarding the aggravating circumstance, and he has failed to demonstrate a
showing of facts that support a reasonable probability that the hypothetical
reasonable defendant would have elected to go to trial if properly advised. See
Segura, 749 N.E.2d at 507 (“there must be a showing of facts that support a
reasonable probability that the hypothetical reasonable defendant would have
elected to go to trial if properly advised”). Thus, his claims of an illusory guilty
plea and ineffective assistance on this basis fail.
II. Failure to Investigate [26] Gibson claims that his trial counsel provided ineffective assistance for failing to
adequately investigate his murder charge before advising him to plead guilty.
Specifically, he argues that trial counsel (1) failed to properly investigate
whether another individual killed Hodella and (2) failed to investigate the
reliability of his confessions.
[27] While it is undisputed that effective representation requires adequate pretrial
investigation and preparation, it is well settled that we should resist judging an
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 13 of 25 attorney’s performance with the benefit of hindsight. Badelle v. State, 754
N.E.2d 510, 538 (Ind. Ct. App. 2001), trans. denied. Accordingly, when
deciding a claim of ineffective assistance for failure to investigate, we apply a
great deal of deference to counsel’s judgments. Boesch v. State, 778 N.E.2d
1276, 1283 (Ind. 2002).
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitation on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.
Strickland, 466 U.S. at 690-91.
A. Adequacy of Investigation
[28] Gibson maintains that counsel’s performance was deficient for failing to
investigate whether another individual killed Hodella. According to Gibson,
information uncovered by the police, as well as the post-mortem examination of
Hodella (revealing multiple facial fractures in various stages of healing and a
healed right rib fracture), should have prompted counsel to investigate whether
Hodella’s ex-boyfriend Mike Rhodes killed her.
[29] At the post-conviction hearing, defense attorney Biggs testified that he
remembered receiving discovery from the State in the Hodella case; he
reviewed the discovery; and, based upon the discovery, he interviewed
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 14 of 25 Detective Rachel Lee with the Jeffersonville Police Department, who had
investigated Hodella’s disappearance in 2002. Biggs further testified that
“almost a week before” he became involved in Gibson’s case, Gibson “had
already confessed to murdering . . . Ms. Hodella,” and that the details of the
confession had been corroborated. Post-Conviction Transcript Vol. I at 50. Biggs
[T]he Jeffersonville police had talked to various witnesses, we have their statements. She had -- Ms. Hodella had been living in Florida with a fellow named Rhodes. She came up here from Florida. And they had a lot of arguments, according to witnesses, and the last time anybody saw her they had argued in the bar at the River Falls Lounge, it was called Bill’s Lounge. And Mr. Rhodes said he left there, and other witnesses said they saw Ms. Hodella leave with another gentleman that was not Mr. Rhodes. That was the last time anyone saw her.
And [Gibson] had told us that he met Ms. Hodella there that night, said she had been arguing with her boyfriend, and she kind of left him and left with Mr. Gibson. So that matched up with his story. And he described her as a small blond woman, which fit Ms. Hodella’s description.
Id. at 55-56.
[30] Biggs recalled that, when Gibson met with Mark Mabrey, the investigator hired
for his case, Gibson indicated that a tattoo on his arm was “a memorialization
of the killing of Ms. Hodella.” Id. at 57. Biggs answered in the affirmative
when asked if Gibson had “always maintain[ed] that he had, in fact, murdered .
. . Ms. Hodella;” if Gibson communicated the confession to the investigator;
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 15 of 25 and if Gibson sent statements to the media about his involvement in the
murder.” Id. at 50. When asked if there was any competent evidence that a
third party committed the crime, Biggs answered, “No.” Id. at 58.
[31] Based upon the foregoing, we find that given Gibson’s confession and the
corroborating evidence, it was reasonable for trial counsel to not undertake
additional investigation into whether another had murdered Hodella. Gibson’s
counsel adequately investigated whether Rhodes killed Hodella. Gibson has
failed to establish that counsel’s investigation fell below an objective standard of
reasonableness.
B. Reliability of Confessions
[32] Gibson says his counsel were ineffective for failing to investigate the reliability
of his confessions to Hodella’s murder and consult with a false confessions
expert to assess the reliability of his confessions. According to Gibson, the
reliability of his confessions was in question because the police used “suggestive
questioning” during their interrogations; certain details of the confessions
conflicted with police evidence (e.g., Gibson told police he stripped Hodella of
her clothes and threw them out with her body, but Hodella’s body was found
clothed); and Gibson “confessed” to murdering several other people, but it was
determined that he had fabricated those confessions so that he could receive
perks from the police like coffee and cigarettes or time out of general lock-up.
Appellant’s Brief at 30, 31.
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 16 of 25 [33] In support of his argument, Gibson points to Professor Alan Hirsch’s testimony
at the post-conviction hearing regarding the history and reasons behind false
confessions and the police techniques and tactics that can lead to false
confessions. Hirsch testified that he believed he “could have offered the
[defense] team . . . opinions about the case, ways in which the confessions
might be vulnerable and subject to challenge, [sic] background information
about this area.” Post-Conviction Transcript Vol. II at 17. Regarding suggestive
questioning by police, he testified:
There was also a fair amount of leading and suggestive questioning. You know, [the police] would say things like, I think with respect to Ms. Hodella, and then you took her clothes off? And [Gibson] nodded. There was one occasion where [Gibson] was shown a photograph of her and did not recognize her. And [the police] said something like this was at the gas station in 2003. And that was triggering his sense of what they were talking about, and he said, oh, that’s Karen [Hodella]. And before long he was saying I’m pretty sure. And so that’s a classic case of leading, suggestive questioning producing evidence.
So, I would say those are the two main things. There was a fair [5] amount of minimization and there was a fair amount of suggestive and leading questioning.
5 Professor Hirsch explained that “minimization” involves “communicating to the suspect that if you confess things won’t be so bad . . . [;] that the crime isn’t so severe and punishment won’t be so severe.” Post- Conviction Transcript Vol. II at 10.
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 17 of 25 Id. at 18-19 (footnote added). Despite this testimony, we are not convinced that
Gibson’s counsel’s performance fell below an objective standard of
reasonableness regarding investigating whether Gibson’s confessions were
reliable.
[34] Gibson repeatedly initiated contact with the police and agreed to provide
statements regarding Hodella’s murder, even after his counsel advised him not
to, “in the very strongest possible language.” Post-Conviction Transcript Vol. I at
15. Given Gibson’s repeated desire to talk to the police, a special advisement
was created and included in the advisement of rights that the police officers
provided each time. The special advisement reminded Gibson of a hearing that
was held before the trial court, during which the trial court and defense counsel
strongly advised Gibson not to talk with the police. Regarding his statements to
the police, Gibson told attorney Biggs, “I appreciate what you’re doing, but . . .
this is what I want to do.” Id. Biggs reviewed Gibson’s statements to the police
and did not find evidence that he believed supported a finding that Gibson’s
confessions were coerced.
[35] Trial counsel also had Gibson psychologically and neurologically evaluated to
determine whether Gibson had any brain damage, based upon information that
Gibson may have hit his head a few times, that could have cast doubt on the
accuracy of his confession. The neurologist determined that Gibson had no
brain damage. Another neurologist determined that Gibson showed no
evidence of cognitive impairment.
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 18 of 25 [36] At the post-conviction hearing, Biggs testified that the defense team did not
consider a strategy for challenging the reliability of Gibson’s confessions
because Gibson had confessed multiple times. Moreover, Gibson’s confessions
were corroborated. Specifically, Gibson knew and communicated accurate
facts about Hodella; he identified her middle name; he knew she had a distinct
tattoo; and he was able to take the police to within fifty feet of where her body
was found.
[37] Under these circumstances, we cannot conclude that Gibson’s counsel failed to
adequately investigate the reliability of Gibson’s confessions and explore
whether a false confession expert would have been beneficial to Gibson’s case.
We find that Gibson’s trial counsel was not ineffective in this regard.
III. Erroneous Findings [38] Gibson next claims that the post-conviction court erred in making certain
findings. Although we do not defer to the post-conviction court’s legal
conclusions, we review the post-conviction court’s factual findings under
a clearly erroneous standard. Stevens, 770 N.E.2d at 746. We will not reweigh
the evidence or judge the credibility of the witnesses; we examine only the
probative evidence and reasonable inferences that support the decision of
the post-conviction court. Conner v. State, 711 N.E.2d 1238, 1245 (Ind. 1999).
[39] Gibson specifically argues that the post-conviction court erred in finding that:
(1) his trial counsel’s investigation into Hodella’s murder included interviewing
a police detective and employing a defense investigator to review discovery and
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 19 of 25 Gibson’s statements to the police; (2) trial counsel acted reasonably by not
further investigating Hodella’s murder; (3) there was no reason to doubt the
reliability of Gibson’s confessions; and (4) trial counsel was not deficient for
failing to pursue a defense that Rhodes was Hodella’s actual killer. Although
Gibson’s arguments overlap, we address each in turn. However, we conclude
that Gibson has failed to carry his burden to show that the post-conviction
court’s findings are clearly erroneous.
A. Police Detective and Investigator
[40] Gibson asserts that, contrary to the post-conviction court’s findings, his counsel
did not interview Detective Rachel Lee (with the Jeffersonville Police
Department) and did not use investigator Mark Mabrey’s services to investigate
Hodella’s murder. However, attorney Biggs testified that he did interview
Detective Lee. Regarding the use of the investigator, the record supports the
post-conviction court’s finding that “Mabrey reviewed the discovery received by
trial counsel and all of Petitioner Gibson’s statements.” Appellant’s Appendix
Vol. II at 210. The post-conviction court’s finding is not clearly erroneous.
B. Murder Investigation
1. Adequacy of Investigation
[41] Gibson contends the post-conviction court’s “finding [that] trial counsel acted
reasonably by not further investigating [Hodella’s murder]” was clearly
erroneous based upon “the information known to trial counsel.” Appellant’s
Brief at 25, 26. We already have determined that trial counsel did not render
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 20 of 25 deficient performance in investigating whether another individual killed
Hodella and the reliability of Gibson’s confessions.
2. Blood-Stained Clothing
[42] Gibson also argues that “[t]o the extent the post-conviction court found that
[bloody clothes found in a dumpster near the time when Hodella was killed]
were evidence of Gibson’s guilt that [justified] trial counsel’s failure to
investigate Hodella’s murder, this finding was clearly erroneous.” Id. at 27.
We disagree.
[43] Blood-stained clothes were found in a dumpster in Corydon, Indiana, on
October 11, 2002, the day after Hodella was killed. When Gibson confessed to
killing Hodella in 2012, he told the police that, after he stabbed her to death, he 6 disposed of his and her clothes in a dumpster in Corydon. The post-conviction
court found, and the facts of the case support, that “bloody clothes were
discovered by police shortly after [the date Hodella was killed], in what was an
independent investigation at the time.” Appellant’s Appendix Vol. II at 211. This
finding was not erroneous. Furthermore, the post-conviction court’s conclusion
that trial counsel adequately investigated Gibson’s murder of Hodella was not
based solely on the evidence of the bloody clothes, but also was based upon
6 DNA testing was performed on the clothing. The laboratory found a DNA profile, but it was determined that the clothes were not connected to any of the murders that Gibson committed.
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 21 of 25 Gibson’s confessions and the corroboration of the details of the confessions.
No error occurred here.
C. Reliability of Gibson’s Confessions
[44] Gibson claims the post-conviction court erroneously found no reason to doubt
the reliability of his confessions. Gibson essentially rehashes the arguments
presented in section II.B. above. There is ample evidence of the reliability of
Gibson’s confessions. The post-conviction court’s finding that there was no
reason to doubt the reliability of Gibson’s confessions is not clearly erroneous.
D. Potential Defense – Another Individual Killed Hodella
[45] Gibson also argues that the post-conviction court erred in finding that his trial
counsel was not deficient for failing to pursue a defense that Rhodes killed
Hodella. The crux of this claim was addressed in section II.A. above. Defense
counsel investigated whether someone other than Gibson committed the
murder but concluded, based upon Gibson’s confessions and the corroboration
of the details of the confessions, that there was no competent evidence that a
third party committed the crime. Gibson has failed to carry his burden to show
that the post-conviction court clearly erred in making this finding.
IV. Conflict of Interest [46] Gibson alleges that he was denied effective assistance because Biggs had a
conflict of interest. Gibson asserts that Biggs’s obligation as Chief Public
Defender to oversee the fiscal demands of the public defender’s office “collided
with his duty of loyalty to Gibson.” Appellant’s Brief at 42. Put another way,
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 22 of 25 Biggs’s obligations regarding overseeing the public defender’s office resulted in
Biggs being pressured to keep costs associated with Gibson’s capital cases as
low as possible, which adversely affected his representation of Gibson in the
Hodella case. Presumably due to the conflict, Biggs did not immediately
assemble critical members of a defense team and did not adequately investigate
the Hodella case.
[47] The federal constitutional right to effective assistance of counsel necessarily
includes representation that is free from conflicts of interest. Wood v. Georgia,
450 U.S. 261, 271 (1981). To establish a violation of the Sixth Amendment due
to a conflict, a defendant who failed to raise the objection at trial must
demonstrate that trial counsel had an actual conflict of interest and that the
conflict adversely affected counsel’s performance. Cuyler v. Sullivan, 446 U.S.
335, 348, 350 (1980); Strickland, 466 U.S. at 692. Gibson has not met his
burden.
[48] Biggs had been the Chief Public Defender in Floyd County for nearly twenty
years, and his duties included overseeing the operation of the public defender’s
office. Biggs was appointed to represent Gibson on or about April 27, 2012.
After his appointment, Biggs reduced his caseload and hired a part-time public
defender to handle new cases assigned to the office. Biggs did not have
concerns about being appointed Gibson’s counsel and serving as Chief Public
Defender because, per Biggs, the chief public defender position “didn’t take that
much of [his] time.” Post-Conviction Transcript Vol. I at 13. The trial court
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 23 of 25 7 reassessed Biggs’s compliance with Crim. R. 24, as it related to his chief public 8 defender administrative duties and determined that Biggs was compliant.
[49] Biggs testified that he did not delay in working on Gibson’s defense and that
meeting the requirements of Crim. R. 24 did not affect his ability to represent
Gibson. Biggs received discovery from the State and conducted interviews.
Biggs hired several individuals to work on Gibson’s defense, including an
investigator, a mitigation specialist, jury consultants, an alcohol use/abuse
specialist, a neurologist, and psychologists. For the Hodella case, Biggs
specifically hired a former chief medical examiner to review autopsy reports
and also hired an expert on correctional systems. Biggs did not hire additional
experts for the Hodella case because “[w]e believed that these cases were going
to come down to a matter of what kind of case we could make for mitigation.
And, basically, you had the same factor in all three cases.” Post-Conviction
Transcript Vol. I at 22.
7 Crim. R. 24 addresses capital cases. 8 After Biggs filed his appearance, the State Public Defender Commission met and discussed whether a chief public defender should be lead counsel in a capital case. On April 9, 2013, Larry Landis, Executive Director of the Indiana Public Defender Council, sent a written memorandum to the Indiana Supreme Court advocating for a change to Crim. R. 24 to prohibit the appointment of a chief public defender in a capital case. David Powell, Executive Director of the Indiana Prosecuting Attorneys Council, also sent a written memorandum to the Indiana Supreme Court advocating for chief public defenders to remain available for appointment in capital cases. Effective in May of 2013, our Supreme Court amended the rule to include that before a chief or managing public defender may be appointed to represent a capital defendant, a court must assess the impact of the appointment on the attorney’s workload, including the administrative duties. See Crim. R. 24(B)(3)(b).
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 24 of 25 [50] Biggs testified at the post-conviction hearing that he was never questioned about
the costs associated with representing Gibson and that he did not feel pressure
to save the county money when determining Gibson’s defense needs.
Specifically, “no one ever spoke to me about it. There was nothing unspoken,
there was no . . . pressure by anyone regarding the costs. As a matter of fact, I
figured the costs, and including the appeal it came to [a very large amount].
And . . . no one ever said anything about it, we just turned in the claims and
they were paid.” Id. at 45. When asked if Biggs believed his role as Chief
Public Defender, and the administrative duties associated therewith, created a
conflict of interest with representing Gibson, Biggs replied: “I am always
morally, ethically and legally bound not to frivol away the funds of the county.
By the same token, I am morally bound, ethically bound to spend whatever I
deem is reasonable to spend in a capital case. . . . All the money was spent
because there was a need.” Id. at 47. Biggs further testified that defense
decisions were not made out of a concern to keep costs low.
[51] Gibson has not demonstrated that his trial counsel had an actual conflict of
interest. His claim that he was denied effective assistance due to a conflict of
interest fails.
[52] The post-conviction court did not err in denying Gibson’s petition for relief.
Judgment affirmed.
Robb, J. and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 22A01-1711-PC-2528 | July 16, 2018 Page 25 of 25