Massa, J.
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.
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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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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.
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).
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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.
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
[O]ur 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).
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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
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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 and counsel’s failure to strike for cause several prospective jurors with strong pro-death penalty views.
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[B]oth 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…”we find no evidence that they acted deficiently.
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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 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
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.
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[W}e 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.
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.
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.
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[[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 [v. Van Hook, 558 U.S. 4, 11 (2009)]. 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).
Even if trial counsel should have investigated further, Gibson fails to show prejudice.
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.
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.
- Statements to Police
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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.
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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.
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.
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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.
We likewise find no prejudice…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.
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 reasonably have abstained from objecting to these statements to avoid the appearance of insensitivity or to avoid drawing more attention to the underlying facts.
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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.”
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).
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.”
These instructions, Gibson argues, improperly suggested to the jurors that their recommendations were merely “advisory in nature” rather than binding, as the law requires.
Here, “the jury was not affirmatively misled regarding its role in the sentencing process.” Rather, the 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.
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.”
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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.
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.”
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.
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.”
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.
Without deciding whether [Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980)] applies exclusively to multiple-representation conflicts, we hold that Gibson’s conflict-of-interest claim falls under our standard Strickland analysis for 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.
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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.
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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 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.
Rush, C.J., and David and Goff, JJ., concur.
Slaughter, J., not participating.