Janet S. Dowling
Special Assistant to the Public Defender of Indiana
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Andrew L. Hedges
Deputy Attorney General
Appellant (Petitioner below),
STATE OF INDIANA, Appellee (Respondent below ).
) Supreme Court No.
First, Indiana Post-Conviction Rule 1(6) requires a post-conviction court to make findings of
fact and conclusions of law. When a court makes special findings of
fact and conclusions of law, the findings must be supported by the evidence
and the conclusions supported by the findings.
See Estate of Reasor v. Putnam
County, 635 N.E.2d 153, 158 (Ind. 1994), rehg denied.
Second, because Bivins had the burden of establishing his grounds for relief at
the post-conviction hearing, Indiana Post-Conviction Rule 1(5), he is now appealing from a
negative judgment. And because he is appealing from a negative judgment, we require
him to demonstrate that the ev
idence as a whole was such that it
leads unerringly and unmistakably to a decision opposite that reached by the post-conviction
court. See Spranger v. State, 650 N.E.2d 1117, 1119-20 (Ind. 1995), rehg
denied. [I]t is only where the evidence is without conflict and leads
to but one conclusion, and the trial court has reached the opposite conclusion,
that its findings or conclusions will be disturbed as being contrary to law.
Spranger, 650 N.E.2d at 1120 (quoting Fleenor v. State, 622 N.E.2d 140,
142 (Ind. 1993), cert. denied, 513 U.S. 999 (1994)).
Third, several of Bivinss claims for post-conviction relief are grounded in his contention
that he did not receive the minimum level of effective assistance from his
trial counsel that the Constitution requires. We analyze such claims according to
the two-part test announced in
Strickland v. Washington, 466 U.S. 668 (1984).
See, e.g., Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994), cert. denied,
516 U.S. 992 (1995). We require the defendant or petitioner to show
that, in light of all the circumstances, the identified acts or omissions of
counsel were outside the wide range of professionally competent assistance. Id.
This showing is made by demonstrating that counsels performance was unreasonable under prevailing
professional norms. Id. (citing Turner v. State, 580 N.E.2d 665, 668
(Ind. 1991), rehg denied). And we require the defendant or petitioner to
show adverse prejudice as a result of the deficient performance. This showing
is made by demonstrating that counsels performance was so prejudicial that it deprived
the petitioner of a fair trial. Williams v. Taylor, 120 S. Ct.
1495, 1511 (2000) (quoting Strickland, 466 U.S. at 687); Lowery, 640 N.E.2d at
1041. To establish prejudice, the defendant or petitioner must show that there
is a reasonable probability that, but for counsels unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine the confidence in the outcome. Williams, 120 S. Ct.
at 1511-12 (quoting Strickland, 466 U.S. at 694).
As required by Indiana Post-Conviction Rule 1(6), the post-conviction court made specific findings
of fact and conclusions of law. From its findings, it concluded as
a matter of law that trial counsel did investigate and attempt to present
mitigating evidence and that none of the mitigating ev
idence presented to the post-conviction
court would likely have changed the sentencing decision of the jury or trial
1. In the last sentence of finding of fact no. 46, the post-conviction court
found that Bivinss relatives testified that his parents sometimes got along well with
each other but argued at other times. Bivins argues that only one
relative made that observation and several relatives testified to a much more turbulent
relationship. Bivins contends that the post-conviction courts finding min
imizes the violent nature
of his parents relationship, completely ignores that Bivins was a witness to this
violence, and is not supported by the weight of the evidence.
Our review of the record indicates that Bivins presented testimony or affidavits at the post-conviction hearing from thirteen eyewitnesses of his childhood in Evansville, including his mother and brother. Four of those childhood-era witnesses testified that Bivinss parents did not get along well and fought with each other. One of those witnesses also testified that at other times, Bivinss parents got along well. Another of those witnesses testified that Bivinss parents ran around on each other (R. at 1176-77, 1181) and that Bivins had to see the fights between his parents. (R. at 1180.) The nine other witnesses (including Bivinss mother and brother) made no mention of violence between Bivinss parents in their testimony or affidavits.
The post-conviction court might have included a finding concerning violence in Bivinss childhood home. However, a large majority of the childhood-era witnesses (including his mother and brother) made no mention of it and there was no conclusive evidence of the extent of his awareness of whatever violence was present. The evidence supports the findings made by the post-conviction court.
2. Bivins argues that the post-conviction courts statement in finding of fact no. 46, that he was raised in a lower-middle class neighborhood, is not supported by the record. Rather, he argues it was an extremely poor and dangerous neighborhood. In making this finding, Bivins contends that the post-conviction court focused on one sentence from one witness and ignored all evidence to the contrary.
Our review of the record indicates that four of the thirteen childhood-era witnesses, including Bivinss brother, described the neighborhood in which he grew up in the following ways: Not the nicest neighborhood; (R. at 1083); lower-middle class; (R. at 1092); a rough neighborhood where some of the adults were drug dealers, thieves and alcoholics; (id.); a neighborhood where kids that would get into trouble lived; (R. at 1102); lower class; (R. at 1103); a neighborhood where you had to be able to protect yourself; (R. at 1141); not the high class neighborhood; (id.); pretty rough; (id.); [i]f you were out at night you needed somebody with you; (id.); the poor side of town; (R. at 1166).
While each of these characterizations suggests a somewhat less attractive environment than the post-conviction courts lower-middle class neighborhood, reasonable inferences from this evidence support the findings made by the post-conviction court. Each of the four witnesses characterizations were brief and quite subjective; none detailed the reasons for his or her descriptions. None of the other childhood-era witnesses commented on the quality of the neighborhood. No empirical evidence of poverty, crime rates, or other socio-economic indicators was presented. And there was evidence that Bivins had good friends in the neighborhood while growing up, including at least one neighbor family with whom he would start each school day and that tried to provide him with a nurturing environment.
3. Bivins takes issue with the post-conviction courts statement in finding of fact no. 47 that, despite being raised in the same environment, Bivinss brother had no convictions for robbery or murder. (R. at 566.) Bivins contends that while it is true that his brother has never been convicted of robbery or murder, the courts finding is misleading because it tells only half the story. Br. of Appellant at 51. He maintains that his brothers life had indeed been troubled, including difficulties with the law.
Bivinss claim here is not that the trial courts finding was wrong but that it was incomplete. While the trial court was accurate in finding that Bivinss brother has no convictions for robbery or murder, that finding is not particularly helpful in evaluating whether trial counsel was ineffective in its mitigation presentation and we disregard it for that purpose.
4. Bivins contends that the post-conviction courts statement in finding of fact no. 48 that his grandfather had an affectionate relationship with him was also only partly true. Bivins argues that all witnesses who testified about his grandfather described him to be a dangerous alcoholic. We do not believe that the post-conviction court's finding is at odds with Bivinss argument on this point: His grandfather had a drinking problem and was described as a disciplinarian. (R. at 566.)
5. Bivins contends that the post-conviction courts statement in finding of fact no. 49 that Lois Chevalier, the mother of a childhood friend of Bivins, did not believe he was being mistreated at home ignored the remainder of her testimony and that of other witnesses that Bivinss physical and emotional needs went unattended. Bivinss principal point here is that neglect of a childs physical and emotional needs constitutes mistreatment as much as physical abuse.
We read the post-conviction courts finding to mean that Bivinss was not subjected to physical abuse at home. Bivins does not contend to the contrary and reasonable inferences from the evidence support the post-conviction courts finding that no physical abuse occurred. The post-conviction court did acknowledge that Bivins endured parental neglect. The post-conviction court determined that Bivinss father was not an affectionate man, and did not spend much time at family gatherings, and spent much time out of town. (R. at 565.) At the same time, we agree that there was substantial evidence of probative value that many of Bivinss physical and emotional needs as a child were neglected. It would have been appropriate for the post-conviction court to have made more extensive findings on this point.
6. Bivins acknowledges the accuracy of the post-conviction courts statement in finding of fact no. 51 that his childhood was marked with discipline problems. He contends that it ignores the evidence regarding the cause of these problems his need for acceptance and friendship, especially in the face of constant ridicule and social isolation because of his stuttering. However, the post-conviction court did recognize that Bivins had a stuttering problem which embarrassed him and lead others to sometimes tease him. (R. at 567.) While the post-conviction court did not discuss the specific cause of the discipline problems, reasonable inferences could be drawn from the evidence that the discipline problems resulted from stuttering and the teasing from others.
7. Bivins takes issue with the post-conviction courts finding of fact no. 52 and the factual statement in conclusion of law no. 97 that his stuttering was not severe. He summarizes the testimony of ten witnesses at the post-conviction hearing which he contends demonstrates the severity of his stuttering and the ridicule that it provoked. The State responds, without citation to the record, as follows: [I]t bears emphasis that most of the evidence presented to the post-conviction court suggested that Bivinss stuttering problem was not severe. Br. of Appellee at 17.
In fact, eight of the thirteen childhood witnesses testified that Bivins had a stuttering problem. Almost all of those eight also testified that Bivins had a speech articulation problem in addition to stuttering and that he was mocked by family members and other children for these difficulties. Three of these eight witnesses testified that they were able to understand Bivins when he spoke though others were not. At the post-conviction hearing, Bivinss mother testified that although speech therapy was of some help with articulation, it did not help his stuttering. Bivinss brother testified that the stuttering problem improved over time. School records introduced by Bivins show that he received speech therapy and made fair progress. The two expert witnesses who testified for Bivins at the post-conviction hearing, Dr. Susan Arnold and Dr. Patricia Chunn, stated that their investigations found that he suffered from stuttering and speech problems as a child. Dr. Chunn testified that Bivinss mother told her that there were many times during his childhood that he stuttered so badly he could not be understood, and that he was often teased. Dr. Chunn also testified that Bivinss speech teacher did not do well with him.
The post-conviction courts findings on stuttering read as follows: He had a stuttering problem which embarrassed him and lead others to sometimes tease him. However, school records from 1965-1972 showed that he received speech therapy and made progress on the problem. Richard Bivins also noticed that the stuttering problem improved over time. (R. at 567.) The problem was not severe. (R. at 596.) While the post-conviction court might properly have said more about Bivinss stuttering, we have reviewed the evidence and find that it does support the findings made by the post-conviction court.
8. Bivins also disputes the post-conviction courts factual statement in conclusion of law no. 97 that speech pathologist Patricia Chunns opinions as to Bivinss auditory processing deficit and speech defect were based on research and information not necessarily available at the time of trial. (R. at 596.) It appears to us that most of the research and information concerning stuttering and speech disorders generally upon which Dr. Chunns opinions were based were, contrary to the post-conviction courts finding, available at the time of trial. At the same time, however, we believe the post-conviction courts finding in this regard is based on Dr. Chunns testimony that there had been new developments in research in her field, that she had kept current on that information, and that her opinion had been affected by her ongoing reading and training.
9. Dr. Susan Arnold conducted an extensive neuropsychological evaluation of Bivins and testified at the post-conviction hearing that he suffers from attention deficit hyperactivity disorder (ADHD). Bivins contests the post-conviction courts statement in finding of fact no. 57 and factual statement in conclusion of law no. 97. He contends the post-conviction court questioned her testimony both on grounds that it may have been based on Bivins lying and misrepresenting things and based, in part, on knowledge about ADHD that has developed since Bivinss trial. Bivins points to Dr. Arnolds testimony that she protected against the possibility of his intentionally skewing the results by giving a large number of tests, insuring that Bivins would be unable to tell exactly what she was testing for. He also emphasizes that her diagnosis of ADHD has extensive support in the testimony of at least eight other witnesses. And he notes that ADHD was discovered in 1937 and was clearly a well-known impulse control disorder at the time of trial.
We do not quarrel with Bivinss analysis on either of these points. But we find nothing in the post-conviction courts findings to indicate that it concluded that Bivins successfully skewed Arnolds test results. Furthermore, although the post-conviction court could have reiterated the testimony of other witnesses about Bivinss disorder, the post-conviction court adequately recognized that Dr. Arnold concluded that Bivins suffered from ADHD and that the diagnosis of this disorder was not tainted by lying on the part of Bivins. In reaching this conclusion, we read the post-conviction courts finding to mean that despite Bivinss history of lying and misrepresenting things, Dr. Arnold nonetheless decisively concluded that Bivins has attention deficit hyperactivity disorder. As such, the findings made by the post-conviction court are sufficiently supported by the evidence.
10. Bivins takes issue with the post-conviction courts finding of fact no. 29 and the fa ctual statement in conclusion of law no. 95 that trial counsel Gross recalled talking with family members by phone as part of the preparation for the penalty phase and that Gross believed Charles Keenan, a private investigator, talked to people in Evansville concerning mitigation. Bivins says that Grosss itemized billing records show that he only talked to Bivinss brother and only during trial (not before it). Bivins also characterizes Keenans post-conviction affidavit as standing for the proposition that Keenan believed he had no responsibility for developing penalty phase evidence. Br. of Appellant at 49. We find the trial court accurately characterized Grosss testimony and that Keenans affidavit could easily be read to support Grosss description of Keenans work. Keenan said he was not responsible for the investigative responsibilities in the mitigation phase of the case, though [he] did interview some family. (R. at 1037.) Reasonable inferences from this evidence support the findings made by the post-conviction court.
Because the post-conviction courts findings are supported by the evidence, they are not clearly erroneous, and therefore will not be set aside.
29. Counsel hired Charles Keenan, an investigator, who investigated Bivins[s] accomplices and, Gross believes,
talked to people in Evansville concerning mitigation. Keenan was paid for his services.
Gross recalled talking with family members by phone as part of preparation for
the penalty phase.
30. Richard Bivins, Bivins[s] brother and a veteran honorably discharged from the Air Force,
testified about family history, Bivins[s] problem with drinking and doing drugs and Bivins[s]
prior imprisonment. He also testified about how Bivins tried to counsel a
niece to do well in school and avoid drugs ([T.]R. at 3876-81).
Bivins[s] mother, Marilyn G. Bivins, testified about his school history, his drug and
alcohol abuse and rebelliousness as a youth, and the history of alcoholism in
the family, including Bivins[s] alcoholic grandfather. She also testified about how much
she loves her son ([T.]R at 3884-91). Bivins[s] wife, Patricia Bivins, also
testified ([T.]R. at 3894-3896). Thomas Ulrey, Bivins[s] former employer, testified that Bivins had
the potential to succeed with training as an industrial painter but that he
dismissed Bivins for poor attendance caused by his drinking problem ([T.]R. at 3897-3902).
Bivins testified on his own behalf and apologized, saying that he was sorry
for killing Mr. Radcliffe ([T.]R. at 3903).
(R. at 558-59.)
As suggested by the discussion in part I-A, there was extensive testimony at
the post-conviction hearing concerning Bivinss personal, family, and social history. This testimony
included information on his relationship with his mother, father, and grandfather; his relationship
with his brother, playmates, and neighbors; the neighborhood in which he grew up;
his academic, health, and military records; and his hyperactivity, discipline problems, and stuttering.
The post-conviction test
imony also included the reports of a psychologist and speech
therapist who examined Bivins at the request of post-conviction counsel.
After making findings of fact (many of which are discussed in part I-A
supra), the post-conviction court concluded in part:
95. Counsel was not ineffective at the penalty phase for failing to investigate and present more evidence in mitigation. Counsel competently presented the testimony of Bivins, his relatives and former employer who collectively presented to the jury evidence about Bivins[s] personal and family history, the familys history of alcoholism, his own problem with alcohol and drugs, his rebelliousness as a teenager and his potential to succeed with training as an industrial painter. Counsel cannot be branded as ineffective for not presenting more of the same type of personal, family and social history through other witnesses. Though there may be portions of Bivins[s] school, health and service records that a defense attorney might attempt to characterize as mitigation, any mitigating effect of those portions is counteracted by the records highly unflattering descriptions of delinquency, criminal conduct and unsuccessful attempts to help him in the past, and the notable absence from those records of any diagnosis of substantial mental illness.
96. Much of Bivins[s] personal history detailed in the post-conviction hearing relates to his childhood. The absence of such a detailed depiction of his childhood at the trial does not constitute ineffective assistance because neither the jury nor the judge are required to find a defendants troubled childhood to be a mitigating factor. Lowery v. State, 547 N.E.2d 1046, 1059 (Ind. 1989)[,cert. denied., 498 U.S. 881(1990).] After all, Bivins was an adult when he intentionally murdered Mr. Radcliffe.
97. Counsel did not perform incompetently by failing to present Bivins[s] history of stuttering
as a mitigating factor. The problem was not severe. In any event,
jurors heard him testify and heard recordings of his statement to police and
could draw their own conclusions about the extent of his stuttering problem. Neither
the jury nor the judge are required to find certain factors to be
mitigating factors simply because there is some evidence in the record to support
Bivins, 642 N.E.2d at 952. Stuttering does not mitigate his
intentional killing of Mr. Radcliffe while robbing him. Speech pathologist Chunns opinion
that Bivins suffers from a central auditory processing disorder does not indicate ineffective
assistance either. Like the opinion of Dr. Arnold, Chunns opinion is admittedly
affected by ongoing research and information not necessarily available in 1991-92. Further,
she admitted she found Bivins to be very bright, confessed knowing very little
about Bivins[s] crimes and had no opinion concerning how his disorder would affect
his crimes. This is hardly the type of mitigation evidence that would
support condemning counsel as ineffective.
(R. at 595-96.) We have already reviewed in detail many of the
principal factual statements embodied in these three paragraphs and determined that the findings
were not clearly erroneous.
See part I-A, supra. We now analyze
whether those findings support the post-conviction courts conclusion that trial counsel discharged their
constitutional duty to investigate and present mitigation.
Death sentences are frequently challenged on the basis that trial counsel failed to
investigate or present evidence of mitigating circumstances.
See Rondon v. State, 711
N.E.2d 506, 520-21 (Ind. 1999). In a small number of cases, where
the failure to investigate or present mitigating circumstances was accompanied by a failure
to present much of a defense at the penalty phase at all, we
have granted relief. Id. at 521; Averhart v. State, 614 N.E.2d 924,
930 (Ind. 1993), rehg denied; Burris v. State, 558 N.E.2d 1067, 1074 (Ind.
1990), cert. denied, 516 U.S. 922 (1995); Smith v. State, 547 N.E.2d 817,
822 (Ind. 1989). But we have also affirmed capital sentences in the
face of claims that trial counsel investigated or presented little in the way
of mitigation where trial counsel did pursue a penalty phase strategy of consequence,
or where there was little mitigating evidence available or what there was could
have been viewed negatively by the jury. See, e.g., Brown v. State,
698 N.E.2d 1132, 1140 (Ind. 1998), cert. denied, 526 U.S. 1056 (1999); Timberlake
v. State, 690 N.E.2d 243, 261 (Ind. 1997), cert. denied, 525 U.S. 1073
(1999); Canaan v. State, 683 N.E.2d 227, 234 (Ind. 1997), cert. denied, 524
U.S. 906 (1998). The United States Supreme Court and the Seventh Circuit
have done so as well. See, e.g., Darden v. Wainwright, 477 U.S.
168, 186 (1986); Stewart v. Gramley, 74 F.3d 132, 135-37 (7th Cir.), cert.
denied, 519 U.S. 838 (1996).
The more difficult claims to resolve are those where trial counsel put on
a mitigation case but the post-conviction investigation demonstrates that there was more that
could have been discovered and presented. That is the nature of Bivins
It was also the nature of the claim in
Williams v. Taylor, 120
S. Ct. 1495 (2000), a Virginia capital case in which the United States
Supreme Court vacated Williamss death sentence on grounds of ineffective assistance of counsel.
Williams was decided after this case was taken under submission and neither
the State nor Bivins have claimed Williams as additional authority under Indiana Appellate
Rule 8.4(B). We observe that the claim on which Williams prevailed was
essentially that which Bivins makes here: that trial counsels deficient performance in investigating
and presenting mitigating circumstances caused prejudice within the meaning of Strickland. Notwithstanding
Williams, we find that Bivins is not entitled to relief.
Bivinss trial counsel had a reasonable penalty phase strategy and executed it.
That strategy was to portray Bivinss crime as a random, unfortunate, isolated act
in an effort to show that Bivins was not as bad as he
was being portrayed. (R. at 558, 1661, 1794-95.) That strategy i
putting Bivins on the stand to testify to his remorse.
Williamss counsels performance was quite different. To the extent that counsel had
any penalty phase strategy at all, it appears to have been to focus
on Williamss voluntary confession.
Williams, 120 S.Ct. at 1514. But if
that was the initial strategy, it had been abandoned by closing argument which
was instead devoted to explaining that it was difficult to find a reason
why the jury should spare Williamss life. Id. at 1500. Justice
OConnor described this speech as a generic, unapologetic closing argument, which provided the
jury with no reasons to spare [Williams]s life. Id. at 1525.
A second part of Bivinss counsels penalty phase strategy was to present the
jury and the trial court with what we find to have been at
least the principal contours of Bivinss background, chara
cter, and record. See Roche
v. State, 690 N.E.2d 1115, 1126 (Ind. 1997), rehg denied. The jury
and trial court heard from Bivins brother about Bivinss problem with drinking and
doing drugs and Bivinss prior imprisonment. (T.R. at 3878, 3883.) They
heard Bivinss mother testify about his school history, his drug and alcohol abuse
and rebelliousness as a youth, and the history of alcoholism in the family,
including his alcoholic grandfather. (T.R. at 3885-88.) The post-conviction proceeding showed
that there was more in the way of mitigating circumstances that could have
been discovered. But we are hard pressed to fault counsel, given the
overall pressures of a capital trial timetable and the fact that counsel had
a coherent penalty phase strategy, for failing to delve deeper into Bivinss background.
See, e.g., Burger v. Kemp, 483 U.S. 776, 793-95 (1987) (holding that
because counsels strategy did not require a more thorough investigation into [the defendants]
background in search of mitigating circumstances, counsels assistance was not ineffective).
While Williamss counsel also offered some background evidence at his sentencing hearing , that evidence consisted only of brief testimony from Williamss mother and two neighbors that Williams was as a nice boy and not a violent person. (One of the neighbors had not been previously interviewed by defense counsel, but was noticed by counsel in the audience during the proceedings and asked to testify on the spot.) Counsel also played a taped excerpt from a statement by a psychiatrist that did little more than relate Williams[s] statement during an examination that in the course of one of his earlier robberies, he had removed the bullets from a gun so as not to injure anyone. Williams, 120 S.Ct. at 1500.
In contrast to the
Williams case, we concur with the post-conviction court that
by presenting the information that counsel did on Bivinss background, character, and record
as part of a reasonable strategy to try to persuade the jury and
the court not to impose death, Bivins trial counsels penalty phase performance was
not below the range expected of reasonable, professionally competent assistance of counsel.
Because Bivinss post-conviction court found no deficient performance, it did not address the
prejudice prong of his claim. In contrast, the Virginia court that heard
Williamss petition for post-conviction relief found that if his trial counsels performance had
measured up to the constitutionally required standard, there was a reasonable probability that
the result would have been different.
Id. at 1501. This was
also the view of the federal district court judge who heard Williamss petition
for habeas corpus, id. at 1502, and at least six members of the
U.S. Supreme Court, id. at 1516, 1525. Justice Stevens identified the following
evidence of Williams[s] nightmarish childhood that the jury would have learned about had
counsels performance not been deficient:
(1) Williamss parents had been imprisoned for the criminal neglect of Williams and his siblings.
(2) Williams had been severely and repeatedly beaten by his father.
(3) Williams had been committed to the custody of the social services bureau for
two years during his parents incarceration (including one stint in an abusive foster
(4) After Williamss parents were released from prison, he was returned to their custody.
(5) Williams was borderline mentally retarded and did not advance beyond sixth grade in
Id. at 1514. Justice OConnor cited the same factors in reaching the same conclusion. Id. at 1524-25.
The mitigation evidence presented at Bivinss post-conviction proceeding was far more mo
Unlike Williamss case, there was no evidence of physical abuse, no evidence of
criminal neglect, and no evidence of mental retardation. As to educational attainment,
the evidence was that Bivins completed the tenth grade and passed the GED
test. To be sure, Bivins presented the post-conviction court with additional information
about his background to that presented in the penalty phase the strained
relationship with his father, the hard-scrabble neighborhood, and his speech impediment and ADHD.
To the extent that counsels performance was deficient for failing to investigate
and present these additional circumstances, we conclude that they added only detail and
not weight to the mitigating evidence presented at trial. And each of
these are such common circumstances that there is no reasonable probability that their
having been presented to the jury or the sentencing judge would have changed
their respective sentencing determinations.
As to Bivinss argument that counsels performance was deficient for failing to investigate
school, health, and service records, we again observe that Bivins himself acknowledges that
these would not have been used as evidence of mitigation because of the
offsetting negative information they contain.
Cf. Williams, 120 S.Ct. at 1514-15.
The mitigation evidence presented to the post-conviction court does not lead us to
usion contrary to that courts determination that Bivins was not the victim
of deficient performance of counsel. Even if Bivinss counsel rendered deficient performance,
we conclude that there is no reasonable probability that the result of the
sentencing phase would have been different.
Bivins also makes a discrete claim that the post-conviction court erroneously held in
conclusion of law no. 101 that trial counsel provided competent assistance during the
sentencing hearing before the judge. (R. at 598.) In support of
this argument, Bivins cites Averhart v. State, 614 N.E.2d 924 (Ind. 1993).
In Averhart, we vacated a death sentence where counsel essentially abandoned his client
both at the penalty phase before the jury and at judicial sentencing.
Id. at 931. Here, as we have seen, this was not the
case in the penalty phase. Further, after the penalty phase here, counsel
commissioned a psychological evaluation of Bivins. At judicial sentencing, he presented the
evaluation to the court; reminded the court of the mitigating evidence presented during
the penalty phase; and asked the court to consider evidence of intoxication and
Bivinss mental state at the time of the crime. Counsels performance at judicial
sentencing does not lead us to a conclusion contrary to the post-conviction courts
determination that trial counsel provided competent assistance during judicial sentencing.
Our review of the record indicates that there was evidence to support the
post-conviction courts findings of fact. In particular, the prosecutor had been served
a motion to produce all such statements. And our review of the
findings does not lead us to an opposite conclusion. While we are
not prepared to say that in all circumstances, [c]ounsel is not required to
do anything more than file a discovery request to comply with the Sixth
Amendment, here we find the conclusion valid. The request was filed; the
prosecutor had a clear legal obligation to comply with it (see part III,
infra); the prosecutor did in fact supply other statements by these witnesses pursuant
to the request; and in this appeal Bivins himself points to nothing that
suggests that counsel should have suspected that its discovery request was not being
complied with in full. We find that counsels performance in failing to
discover the three pre-trial statements was not deficient within the meaning of the
first prong of the Strickland test and, as such, Bivins was not denied
the effective assistance of counsel to which he was entitled. See Rondon,
711 N.E.2d at 518 (finding no ineffective assistance of counsel where counsel did
not discover information beyond what the State had supplied, which included witnesses statements,
police reports, inventory reports, photographs, lab reports, arrest reports, and an autopsy report).
Bivins begins this line of argument by contending that the States theory was
that he had gone on a crime spree with the intent of killing
someone to see how it felt and that evidence of this theory came
exclusively from Chambers and Weyls. Because Chambers and Weyls had accompanied Bivins
on the crime spree, he contends that the State had an interest in
showing him as the most culpable while portraying Chambers and Weyls as less
involved and less culpable. This, Bivins reasons, would have helped the State
by bolstering their credibility to the jury and to the court. As
such, Bivinss a
rgument continues, effective assistance of counsel demanded that the defense prove
that both Chambers and Weyls were lying during their direct examination testimony.
Bivins points to facts in the three undisclosed pre-trial statements and other statements
to which defense counsel had access during trial, and inconsistencies between Chamberss and
Weylss out-of-court statements, all of which Bivins contends demonstrates a much greater degree
of involvement in the crimes than their in-court testimony indicated. Yet, Bivins
says, there was no such cross-examination along these lines. Br. of Appellant
Two examples suffice. Chambers and Weyls both testified that Weyls stayed in
the car during the Dollar Inn robbery. Yet in a sworn statement
taken from Chambers on October 2, 1991, and available to trial counsel at
trial, Chambers told authorities that Weyls was in the hotel room at the
Dollar Inn and that Weyls may have hit one of the robbery victims.
Second, Chambers testified in
itially that all three men went into the restroom
at the rest park and then all three left the building and walked
toward the car. Chambers said that he and Bivins then returned to
the mens room and found Radcliffe washing his hands. But Weyls testified
that he saw Chambers and Bivins approach Radcliffe and that each of them
took a hold of Radcliffe and shoved him into the mens room.
Bivins argues that defense counsel failed to impeach these State witnesses by failing
to point out the contradictions in their testimony. Br. of Appellant at
Bivins also makes a similar argument that it was in the States interest
that Chambers and Weyls be portrayed as extremely cooperative witnesses, again for the
purpose of enhancing their credibility to the jury and the court.
at 68. As such, Bivins contends, effective assistance of counsel demanded that
the defense demonstrate that Chambers and Weyls had not been cooperative and only
agreed to give testimony favorable to the States theory when it was to
their benefit, e.g., when certain charges against them were dropped. Bivins contends
that the three undisclosed statements demonstrate that during previous meetings with authorities, Chambers
and Weyls did not supply information concerning the murder and that Chambers had
denied any involvement in the crimes from the time of his arrest until
he gave his statement on October 2, 1991. Id.
The post-conviction court made certain findings of fact from which it concluded that
the methods of cross-examination are a matter of trial strategy, and that trial
counsel had competently cross-examined Chambers and Weyls:
93. Counsel competently cross-examined Bivins[s] accomplices. [T]he nature and extent of cross-examination is a matter of trial strategy, delegated to trial counsel. Osborne v. State, 481 N.E.2d 376, 380 (Ind. 1985). Counsel thoroughly questioned Chambers about whether he was telling the truth, about his prior convictions and periods of incarceration for burglary, theft, vehicle theft, and possession of stolen property, his parole status at the time of the instant offenses, about the fact that he was charged with murder for the instant offense but that charge was reduced to A felony robbery and four other charges were dismissed as part of a plea agreement with the prosecutor, about the fact that he believed he was testifying under a grant of immunity, about the fact that he had reached a plea agreement concerning his Tippecanoe County case for which he would receive no additional time, about his motivation for testifying, and about details of the charged offenses of January 16, 1991. Counsel questioned Weyls about his present incarceration for two counts of class A felony robbery and three class D felonies, and his prior convictions for theft, auto theft, robbery, second-degree murder and commission of a felony while armed with a deadly weapon ([T.]R. at 3386-88). Through crossexamination, defense counsel also reminded the jury that Weyls was testifying under a grant of immunity ([T.]R. at 3389). Counsel also questioned Weyls about the details and his role in the events of January 16, 1991 ([T.]R. at 3389-3397). Such cross-examination tested the States evidence and cannot be said to be unprofessional or to have deprived Bivins of a fair trial.
(R. at 593-94.)
Our review of the record indicates that there was evidence to support the
post-conviction courts findings of fact. During cross-examination, trial counsel impeached Chamberss testimony,
and thereby attacked his credibility, by presenting evidence of his prior convictions including
theft, burglary and confinement.
Counsel further attacked Chamberss credibility by impeaching his
motivation for testifying against Bivins. In particular, Chambers was forced to testify
that he had entered into a plea agreement in which the murder charge
against him was reduced to a robbery charge and all other charges against
him were dropped completely. Chamberss cross-examination also yielded the fact that Chambers
was testifying against Bivins under the protection of use-immunity that he was
shielded from prosecution for any self-incriminating statements he made to implicate Bivins.
In trial counsels cross-examination of Weyls, counsel asked Weyls about his present inca
for two counts of Class A felony robbery and three Class D felonies,
and his prior convictions for theft, auto theft, robbery, second-degree murder, and commission
of a felony while armed with a deadly weapon. Trial counsel informed
the jury that, similar to Chamberss situation, Weyls was also testifying under a
grant of immunity. Counsel further questioned Weyls about the details concerning his
role in the events of January 16, 1991.
Our review of the post-conviction courts findings does not lead us to an
opposite conclusion than that trial counsel conducted competent cross-examinations of State witnesses, Chambers
and Weyls. While there were inconsistencies between some of the out-of-court and
in-court statements and between the in-court testimony of these two witnesses that might
have been useful for impeac
hment purposes, counsel is permitted to make reasonable judgments
in strategy. See Olson v. State, 563 N.E.2d 565, 568 (Ind. 1990)
and Fugate v. State, 608 N.E.2d 1370, 1373 (Ind. 1993) (each holding that
the method of impeaching witnesses was a tactical decision, a matter of trial
strategy, and did not amount to ineffective assistance of counsel). Here, trial
counsel repeatedly placed the credibility of Chambers and Weyls into question. In
opening argument, trial counsel vigorously raised its the deal with the squeal theme,
emphasizing the fact that Chambers entered into favorable plea agreement and that both
Chambers and Weyls were granted use-immunity. (T.R. at 2592-93.) As discussed
supra, counsel repeatedly attacked the credibility of Chambers and Weyls using the plea
agreements, the use-immunity arrangements, and their prior convictions. The post-conviction courts findings
support its conclusion that counsels cross-examination of Chambers and Weyls was not deficient
within the meaning of the first prong of the Strickland test and, as
such, Bivins was not denied the effective assistance of counsel to which he
was entitled. See, e.g., Harrison v. State, 707 N.E.2d 767, 780 (Ind.
1999) (ruling that where trial counsel challenged the credibility of two state witnesses
in opening and closing statement, and further conducted a thorough cross-examination of these
witnesses, counsels failure to obtain impeaching evidence offered at post-conviction stage was not
outside the range of acceptable counsel performance under Strickland), cert. denied, 120 S.
Ct. 1722 (2000); Stanely v. State, 479 N.E.2d 1315, 1317 (Ind. 1985) (holding
that where trial counsel attacked the credibility of a State witness by eliciting
information about the witnesss alcohol consumption and prior acts of arson, counsels performance
was not deficient in failing to call a Defense witness for further impeachment).
Bivins argues that this is the case here, using the same reasoning which
we analyzed in the preceding section. That is, Bivins contends that the
documents would have undermined the credibility of the States two witnesses, Chambers and
Weyls, both as to their degree of involvement in the crimes and their
degree of cooperation with the authorities in solving the crimes.
We begin our analysis by describing the three statements at issue.
On February 6, 1991, shortly after the Radcliffe killing, Chambers gave a statement
to Officers Reed and Butler regarding an automobile accident that occurred on December
24, 1990. In the statement, Chambers explained that the truck driven by
him belonged to Bivins, whom he had met while they were incarcerated together.
Chambers also denied being acquainted with Weyls. At the post-conviction hearing,
trial counsel testified that this statement was not very important other than to
show that Ron Chambers knew Jerry Bivins, an issue not disputed at trial.
(R. at 1,658, 1,780-81.)
On January 18, 1991, two days after the Radcliffe killing, Scott Weyls gave a statement to Officer Butler following Weylss arrest for public intoxication. Officer Butler questioned Weyls regarding a liquor store robbery that had occurred in the town of Rossville, Indiana. Weyls denied having committed any armed robberies since August 1990. When questioned about whether he was acquainted with Bivins, Weyls admitted that he knew Bivins from their days of incarceration, and that he had seen Bivins recently. Officer Butler informed Weyls that he (Weyls) was a suspect in the robberies and the Radcliffe killing. Weyls denied having any knowledge regarding the Radcliffe killing other than what he heard in the news media. See footnote At a post-conviction hearing, trial counsel agreed that Weylss January 18, 1991, statement could have been used to contradict Weylss in-court testimony. Counsel testified that even though Officer Butler specifically asked about the murder at the rest park, [Weyls] gave no information for [the murder] at that particular time. (R. at 1782-92.)
Officer Butler also took a statement from Joni Chambers, Chamberss wife, on August
5, 1991. In that statement, Joni Chambers told police about Chamberss account
of the robberies at the Dollar Inn, the Holiday Inn, and the rest
park. Joni reported that Chambers told her that he, Weyls, and Bivins
participated in the robberies. Joni also stated that according to Chambers, Bivins
shot Radcliffe in the back of the head. Joni reported that when
Chambers asked Bivins why he had shot Radcliffe, Bivins responded that he just
wanted to know what it felt like to kill somebody. She also
told the officer about other robberies committed by Bivins. Officer Butler, who
worked in Tippec
anoe County, did not give the statement to the Boone County
The post-conviction court made certain findings of fact from which it concluded that
no Brady violation occurred:
65. The claim concerning non-disclosure of Chambers, February 6, 1991 statement lacks merit because
that statement concerned an automobile accident, not the crime spree for which Bivins
was convicted. As Gross indicated, this statement would not be of much
use, other than to prove Chambers knew Bivins, a fact not disputed at
trial. Any impeachment value in the portion of the statement where Chambers
denies knowing Weyls would have been slight because whether Chambers knew Weyls was
not a disputed issue at trial and could have easily been explained as
the attempt of accomplices to keep quiet about their offenses until implicated.
Counsel thoroughly cross-examined Chambers about other matters and impeached him with evidence of
prior convictions and his plea agreements. Moreover, in light of Bivins[s] confessions
and other evidence implicating him, there is no reasonable probability of a different
result if the statement had been provided to counsel. See House[ v.
State], 535 N.E.2d [103, 107 (Ind. 1989), rehg denied.]
66. Nor is there any reasonable probability of a different result had
Scott Weyls[s] January 18, 1991[,] statement to Officer Butler been provided to counsel.
Even without the statement, counsel was able to impeach Weyls with evidence
of other convictions. Though the undisclosed statement was inconsistent with Weyls[s] trial
testimony about events on the night of the murder in that he denies
knowledge of the crimes in the statement, the inconsistency could have been easily
explained at trial as the predictable attempt of accomplices to keep quiet about
his offenses until impl
icated. Gross admitted that before trial he had reviewed
transcripts of telephone conversations, conversations between Bivins and Weyls before trial, in which
Weyls had not implicated Bivins in the crimes. Thus, counsel could have used
these conversation, if he had wished, to suggest Weyls had given statements inconsistent
with his trial testimony. The prosecutor was not attempting to hide Weyls[s]
earlier version of events. Moreover, Chambers also testified about Bivins committing the
theft at the Lazarus store in Lafayette, committing the robbery at the Holiday
Inn and robbing and shooting Mr. Radcliffe at the rest park ([T.]R. at
3666-83). Most significantly, Bivins himself confessed to police that he shot Mr.
Radcliffe and provided details about the murder weapon and its location. Bivins, 42
N.E.2d at 937. Accordingly, there is no reasonable probability of a different
result if Weyls had been impeached with his pretrial statement. See House,
535 N.E.2d at 107. The non-disclosure of this statement did not undermine
the reliability of the verdict or sentence.
(R. at 574-75.)
Our review of the post-conviction courts findings does not lead us to an opposite conclusion than that no Brady violation occurred. The prosecutions suppression of favorable evidence upon the defendants request of evidence violates due process where the evidence is material either to guilt or to punishment. Brady, 373 U.S. at 87. The United States Supreme Court in United States v. Bagley, 473 U.S. 667 (1985), determined that material impeachment evidence as well as exculpatory evidence fall within the Brady rule. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. at 682; Ky1es, 514 U.S. at 433-34; Williams v. State, 724 N.E.2d 1070, 1083 (Ind. 2000). A reasonable probability of a different result is demonstrated when the governments evidentiary suppression undermines confidence in the outcome of the of the trial. Kyles, 514 U.S. 434 (quoting Bagley, 483 U.S. at 678); Williams, 724 N.E.2d at 1083. If we find that a reasonable probability exists, then the favorable evidence is material under Brady, and its suppression from the prosecution results in constitutional error thereby warranting a new trial. See Kyles, 514 U.S. at 434-36.
We are not led to a finding opposite the post-conviction courts that there
was no reasonable probabi
lity that had the undisclosed statements of Chambers and Weyls
been available to trial counsel, the outcome of Bivinss trial would have been
As to Chamberss statement given to authorities on February 6, 1991, this statement
ncerned an automobile accident which had occurred almost a year earlier. The
States failure to discover this statement did not prejudice Bivins as trial counsel
testified that he would have used it merely to show that Chambers knew
Bivins an uncontested fact at trial. While Chambers did not voluntarily
disclose his involvement in the Radcliffe killing, our review of the record indicates
that the authorities never questioned Chambers about such information at the time.
Although trial counsel could have used this statement to impeach Chambers on the
basis that Chambers first denied having known Weyls, counsel employed another method of
impeachment by questioning Chambers about his plea agreements, use-immunity arrangements, and prior convictions.
See part II-B, supra.
Weylss statement, in which he had explicitly denied that he was Bivinss accomplice,
could have been used to impeach Weyls on cross-examination. But, as discussed
in part II-B
supra, trial counsel effectively impeached Weyls by attacking his plea
agreement, use-immunity arrangements, and prior convictions.
Although Joni Chamberss August 5, 1991, statement was introduced at the post-conviction hearing,
Bivins failed to advance any argument concerning it in his petition for post-conviction
relief. Accordingly, the argument is not available for review here.
Roche, 690 N.E.2d at 1122-23 (holding that claims not presented until appellants
brief in an appeal from denial of post-conviction relief are waived) (citing Canaan,
683 N.E.2d at 235).
Furthermore, no information contained in either Chamberss or Weylss statement in any way
relieved Bivins of any guilt, portrayed Bivins as having less culpability, or was
in any other way ex
culpatory. And the State presented overwhelming proof that
Bivins killed Radcliffe: Bivins voluntarily confessed to committing the murder, see Bivins, 642
N.E.2d at 941; and Bivins directed the police to the location of the
murder weapon, see id. Thus, in evaluating the significance of the undisclosed
statements, the States case would not have been significantly impaired had they been
available to trial counsel. Because we find that the undisclosed favorable evidence
did not put the whole case in such a different light as to
undermine confidence in the trial courts judgment, we affirm the post-conviction courts conclusion
that no Brady violation occurred. See Games, 684 N.E.2d at 471-72 (holding
that the States failure to give the defendant impeachment evidence did not undermine
the confidence in the trials outcome where trial counsel employed other methods to
impeach a State witness and the evidence against the defendant was overwhelming).
Furthermore, the trial court made certain findings of fact to the effect that
there was no ev
idence showing that any of Bivinss jurors saw the fliers.
(See Finding of fact no. 17.) We find nothing in the
record in conflict with this finding. Indeed, Bivins does not contend that
any juror saw or was otherwise made aware of the fliers. See
Br. of Appellant at 81-85. In the absence of any suggestion that
any juror saw or was otherwise made aware of the fliers, we conclude
that the fliers in no way adversely affected Bivinss right to a fair
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.