MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      FILED
regarded as precedent or cited before any                        Dec 12 2016, 6:59 am

court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
the defense of res judicata, collateral                              Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Vickie Yaser                                             Justin F. Roebel
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Moses Giger,                                             December 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1602-PC-392
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jerome Frese,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-0501-PC-7



Barnes, Judge.


Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 1 of 31
                                             Case Summary
[1]   Moses Giger appeals the post-conviction court’s denial of his petition for post-

      conviction relief, which challenged his conviction and sentence for murder. We

      affirm.


                                                    Issues
[2]   Giger raises numerous issues, which we consolidate and restate as:


                      I.       whether Giger was denied the effective
                               assistance of trial counsel; and

                      II.      whether Giger was denied the effective
                               assistance of appellate counsel.


                                                     Facts
[3]   The facts, as set out in Giger’s direct appeal, follow:


              On February 2, 2002, Giger went to the home of his neighbor,
              Angela Husband. Husband was a prostitute and Giger paid her
              regularly with either money or drugs for sexual services. When
              Giger arrived at Husband’s, he had only a small amount of crack
              cocaine and told Husband he would return later if he could get
              more cocaine with which to pay her.


              Giger called James Thorpe (also known as “Cash”), a drug
              dealer with whom Giger had regular contact and from whom
              Giger had purchased drugs within the preceding week. Thorpe
              asked Giger to drive him somewhere and Giger picked him up.
              Giger drove Thorpe to a residence. Giger remained in the car
              while Thorpe exited, presumably to approach the house. Thorpe
              took Giger’s keys with him to make sure that Giger would not
              leave him stranded at the house. Giger, in turn, held some of
      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 2 of 31
        Thorpe’s drugs to make sure Thorpe would return. Giger claims
        he saw Thorpe running down the street and Giger chased him
        because Thorpe had Giger’s car keys. Giger claims that he fell
        while chasing Thorpe. After falling, Giger saw a knife on the
        ground and picked it up. He claims that he found Thorpe’s body
        a few feet from the knife and was unable to rouse him.


        Giger took the knife with him and drove home. He left the knife
        by the front door. After noting that he had blood on his hands
        and pants, he washed his hands and changed his pants. He later
        returned to Husband’s house with a handful of cocaine packets.
        Giger, Husband, and Husband’s mother consumed the cocaine.
        After the cocaine was consumed, Giger left and returned with
        more drugs.


        Thorpe’s body was found in a pool of his blood on the morning
        of February 3 at the corner of College and Sibley Streets in South
        Bend. Thorpe had been stabbed twenty-one times with a knife,
        puncturing both lungs, his aorta, and damaging his heart. The
        wounds included several stabs to his back, stabs to his arms
        suggesting defensive wounds and a cluster of stab wounds to the
        chest at least two of which the pathologist classified as
        perimortem or postmortem wounds.


        Husband contacted the South Bend police stating that she
        believed Giger may have killed Thorpe. The police recovered
        several items from Giger’s home including the knife and two
        pairs of Giger’s jeans. Thorpe’s blood was found on Giger’s car,
        jeans, left shoe, and on the knife. Police officers also recovered
        $359.95 in blood-covered currency in Giger’s possession. The
        State performed DNA testing on items taken from Giger as well
        as items recovered from the crime scene. The only recovered
        DNA inconsistent with Giger or Thorpe was from the headband
        of Thorpe’s baseball cap and the outside of Thorpe’s pockets.



Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 3 of 31
      Giger v. State, No. 71A05-0306-CR-286, slip op. at 2-4 (Ind. Ct. App. Apr. 12,

      2004).


[4]   The State charged Giger with murder, and a jury found him guilty as charged.

      The trial court sentenced him to sixty-five years in the Department of

      Correction with five years suspended, thirty years of probation, and $3,500 in

      restitution. Giger appealed his conviction and sentence. He challenged the

      sufficiency of the evidence to sustain his conviction and his sentence, including

      the probationary term and the restitution. We affirmed his conviction and

      sixty-five-year sentence, but we reduced the probationary term and remanded

      regarding the restitution order. Id. at 16.


[5]   In 2005, Giger filed a petition for post-conviction relief, and he filed six

      amended petitions. In general, Giger alleged that his trial counsel, Neil

      Weisman, and appellate counsel, Sean Hilgendorf, were ineffective. After

      evidentiary hearings on three dates in 2015 and 2016, the post-conviction court

      issued findings of fact and conclusions of law denying Giger’s petition for post-

      conviction relief. Giger now appeals.


                                                  Analysis
[6]   Giger argues that the post-conviction court’s denial of his petition is clearly

      erroneous. A court that hears a post-conviction claim must make findings of

      fact and conclusions of law on all issues presented in the petition. Pruitt v. State,

      903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-conviction Rule 1(6)). “The

      findings must be supported by facts and the conclusions must be supported by

      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 4 of 31
      the law.” Id. Our review on appeal is limited to these findings and

      conclusions. Id. Because the petitioner bears the burden of proof in the post-

      conviction court, an unsuccessful petitioner appeals from a negative

      judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a negative

      judgment must show that the evidence as a whole ‘leads unerringly and

      unmistakably to a conclusion opposite to that reached by the trial court.’” Id.

      (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under

      this standard of review, “[we] will disturb a post-conviction court’s decision as

      being contrary to law only where the evidence is without conflict and leads to

      but one conclusion, and the post-conviction court has reached the opposite

      conclusion.” Id.


                              I. Ineffective Assistance of Trial Counsel

[7]   Giger raises numerous arguments that his trial counsel was ineffective. To

      prevail on a claim of ineffective assistance of counsel, a petitioner must

      demonstrate both that his or her counsel’s performance was deficient and that

      the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State,

      729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668,

      687, 104 S. Ct. 2052, 2064 (1984)), cert. denied. A counsel’s performance is

      deficient if it falls below an objective standard of reasonableness based on

      prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.

      2002). To meet the appropriate test for prejudice, the petitioner must show that

      there is a reasonable probability that, but for counsel’s unprofessional errors, the

      result of the proceeding would have been different. Id. “A reasonable

      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 5 of 31
      probability is a probability sufficient to undermine confidence in the

      outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy

      either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027,

      1031 (Ind. 2006). Most ineffective assistance of counsel claims can be resolved

      by a prejudice inquiry alone. Id.


                                           A. Conflict of Interest

[8]   Giger first argues that his trial counsel was ineffective because he had a conflict

      of interest. Giger contends that, after filing an appearance for him in January

      2002, his trial counsel appeared as a public defender for Demetric Johnson, a

      witness in Giger’s case, in unrelated criminal charges. Johnson was then a

      witness called by the State at Giger’s trial, which occurred after her charges

      were resolved.


[9]   The post-conviction court rejected Giger’s claim and found:

              Petitioner claims that he was deprived of effective assistance of
              counsel because Mr. Weisman also represented Demetric
              Johnson, a witness in the case.


              The evidence showed, however, that Mr. Weisman’s
              representation of Ms. Johnson had ended long before Petitioner’s
              trial was held. There was no indication that Mr. Weisman’s
              prior representation of Ms. Johnson had touched on matters
              relevant to Petitioner’s case at all.


              More importantly, Mr. Weisman explained that he didn’t believe
              there was any conflict because he did not view Ms. Johnson as
              an adverse witness. Although she was called by the State, he

      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 6 of 31
               testified that he would have called her as a defense witness if the
               State had not called her. Mr. Weisman wanted to use Ms.
               Johnson, not attack her.


               Finally, this Court believes Mr. Weisman—and does not believe
               Petitioner—on the issue of disclosure. Mr. Weisman testified
               that he discussed the matter with Petitioner prior to trial.
               Although this is disputed by Petitioner, this Court finds that
               Petitioner has not carried his burden of proof on this issue.


       Appellant’s App. Vol. III pp. 93-94.


[10]   “The federal constitutional right to effective assistance of counsel necessarily

       includes representation that is free from conflicts of interest.” Woods v. State,

       701 N.E.2d 1208, 1223 (Ind. 1998) (citing Wood v. Georgia, 450 U.S. 261, 271,

       101 S. Ct. 1097 (1981)), cert. denied. “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.” Id. (citing Cuyler v.

       Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708 (1980)). Once the two prongs of

       Cuyler are met—actual conflict and adverse impact—prejudice is presumed. Id.

       (citing Burger v. Kemp, 483 U.S. 776, 783, 107 S. Ct. 3114 (1987)).


[11]   We first consider whether Giger established an actual conflict of interest. The

       court in Woods described the difference between the possibility of a conflict and

       an actual conflict:

               “There is the possibility of a conflict, then, if the interests of the
               defendants may diverge at some point so as to place the attorney

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 7 of 31
               under inconsistent duties. There is an actual, relevant conflict of
               interests if, during the course of the representation, the
               defendants’ interests do diverge with respect to a material factual
               or legal issue or to a course of action.” Cuyler, 446 U.S. at 356 n.
               3, 100 S. Ct. 1708 (Marshall, J., concurring in part).


       Woods, 701 N.E.2d at 1223 n.25. Giger argues that his trial counsel had an

       actual conflict because of his representation of Johnson. Trial counsel testified

       at the post-conviction hearing that he discussed his prior representation of

       Johnson with Giger but that he did not view it as a conflict. He testified that he

       did not view Johnson as a witness against Giger; rather, he used her as a

       witness against Greene, who claimed to have found the victim’s body. Trial

       counsel testified, “It was to our benefit to use her to incriminate Mr. Greene

       which in some way she did.” PCR Tr. p. 231.


[12]   The post-conviction court found that Giger had been informed of his trial

       counsel’s prior representation of Johnson, and we cannot reweigh that

       evidence. See McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct. App. 2013) (“We

       will not reweigh the evidence or judge the credibility of witnesses, and will

       consider only the probative evidence and reasonable inferences flowing

       therefrom that support the post-conviction court’s decision.”). Further, his trial

       counsel’s representation of Johnson was unrelated to Giger’s case and ended

       long before Giger’s trial. Trial counsel’s strategy to use Johnson to imply that

       Greene committed the crime was a legitimate strategy, and we simply cannot

       say there was anything more than the possibility of a conflict here.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 8 of 31
[13]   Moreover, even if we were to assume that Giger’s and Johnson’s interests

       diverged and that an actual conflict of interest occurred, Giger has failed to

       demonstrate any adverse impact. An adverse effect on performance caused by

       trial counsel’s failure to act requires a showing of: (1) a plausible strategy or

       tactic that was not followed but might have been pursued; and (2) an

       inconsistency between that strategy or tactic and counsel’s other loyalties, or

       that the alternate strategy or tactic was not undertaken due to the conflict.

       Woods, 701 N.E.2d at 1223. According to Giger, his trial counsel should have

       informed the jury of Johnson’s connections to Thorpe and Greene, pointed out

       discrepancies between her police report, deposition, and trial testimony, and

       discussed her crimes of dishonesty. Giger implies that Johnson may have

       played a role in Thorpe’s death and that his trial counsel’s strategy of using

       Johnson to implicate Greene was ineffective.


[14]   During the post-conviction proceedings, Giger presented absolutely no evidence

       that Johnson was somehow involved in Thorpe’s death. There is also no

       evidence that his trial counsel would have somehow implicated Johnson if not

       for his prior representation of her. His unsubstantiated assertions of an actual

       conflict and unsupported speculation as to Johnson’s involvement in the crime

       are simply insufficient to demonstrate ineffective assistance of counsel. The

       post-conviction court’s finding is not clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 9 of 31
                       B. Failure to Investigate and Cross-Examine Effectively

[15]   Giger next argues that his trial counsel failed to effectively cross-examine and

       investigate Angela Husband, George Greene, Mario Stewart, Adrian Vanison,

       and Rebecca Tobey.


[16]   Husband was Giger’s girlfriend, and she spent time with Giger on the night of

       Thorpe’s murder. Husband reported her suspicions regarding Giger’s

       involvement with the murder to the police. Giger argues that his trial counsel

       failed to cross-examine Husband regarding inconsistencies between her initial

       statements to police, her deposition testimony, and her trial testimony. Giger

       also argues that his trial counsel should have questioned Husband regarding her

       description of a garage with respect to an incident unrelated to the murder.


[17]   Greene found Thorpe’s body. Giger argues that his trial counsel should have

       cross-examined Greene regarding some inconsistencies between his statements

       to the police and his trial testimony and regarding his criminal history. Giger

       contends that his trial counsel missed opportunities to highlight “seemingly

       helpful evidence.” Appellant’s Br. p. 42.


[18]   Stewart was a jail house informant who claimed that Giger confessed to him

       while they were housed together. Giger contends that his trial counsel was

       ineffective for failing to correct or point out inconsistencies, failing to imply that

       Stewart read newspaper coverage of Giger’s case, and failing to point out

       benefits that Stewart received for his testimony.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 10 of 31
[19]   Vanison was a friend of Thorpe and testified regarding Thorpe’s activities on

       the evening of his death. Giger argues that Vanison’s testimony was different

       than his deposition testimony and initial accounts and that his trial counsel

       failed to investigate Vanison’s criminal history.


[20]   Finally, Tobey was a DNA analyst. Giger argues that his trial counsel failed to

       adequately cross-examine her regarding “extraneous possible alleles” found on

       certain pieces of evidence. Appellant’s Br. p. 50.


[21]   Giger also argues that he was “prejudiced by the jury’s lack of information

       relative to the credibility of four witnesses: Husband, Green and Vanison had

       pending cases and Johnson was on probation.” Appellant’s Br. p. 33.


[22]   On the issue of trial counsel’s cross-examination and investigations, the post-

       conviction court found:


               Petitioner complains that his trial attorney, Mr. Neil Weisman,
               did not adequately cross examine and impeach various trial
               witnesses. In fact, a review of the trial record reveals that Mr.
               Weisman DID cross examine the various witnesses, and DID
               argue to the jury that the trial testimony of those witnesses was
               suspect. Although Petitioner acknowledges that fact, he believes
               that Mr. Weisman should have done MORE to impeach and
               attack witnesses, and that his failure to do so amounted to
               ineffective assistance.


               This Court finds otherwise. Mr. Weisman was already an
               experienced trial lawyer at the time of the trial. He explained
               during his testimony at the PCR hearings that he had to
               strategically pick and choose which battles to fight with witnesses
               in front of the jury. He explained that the demeanor of witnesses

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 11 of 31
        could impact whether he allowed various portions of testimony
        to go unchallenged during cross examination. He explained that
        the defense theory of the case also required him to sift through
        the witnesses’ trial testimony, asking the jury to accept some of
        the testimony while rejecting other portions. This strategy would
        have been incompatible with the sort of “no-holds-barred” cross
        examination that Petitioner is now claiming to be essential. The
        Court finds Mr. Weisman’s strategy and tactics—and
        explanation for them—to be reasonable.


        Further, it is essential to point out that Petitioner has not
        demonstrated what the outcome or results of additional cross
        examination would have been. Petitioner repeatedly insists that
        trial counsel should have “explored” issues more fully (either pre-
        trial or during cross examination), or that trial counsel should
        have more fully “impeached” witnesses. But Petitioner has not
        proved how the witnesses would have answered such cross examination
        questions, or how the witnesses would have responded to increased
        attacks on their credibility, or whether the State would have been able to
        effectively counter such tactics. This Court declines the apparent
        invitation to simply assume that the result of “further
        exploration” of the issues suggested by Petitioner with trial
        witnesses would have caused the witnesses to crumble in front of
        the jury.


        The Court finds Petitioner has not met the first prong of the
        Strickland test with respect to Mr. Weisman’s cross examination
        at trial. There was no deficient performance.


        The Court further finds that Petitioner has not met the second
        prong of the Strickland test on this issue. Even if the additional
        cross examination matter suggested by Petitioner during the PCR
        hearing were brought out in front of the jury, there is absolutely
        no reason to believe that the outcome of the trial would have
        been different. The core facts outlined above would have
        remained the same. There was no possible prejudice.
Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 12 of 31
                                                    *****


               One of the State’s witnesses, Angela Husband, made a statement
               about a prior event that occurred in a garage. To be clear, the
               murder did not happen in a garage or at the time of that alleged
               prior event. Still, Petitioner claims that his trial counsel should
               have located and presented witnesses (family members) who
               could have contradicted that statement about the garage, and that
               the failure to do so constituted ineffective assistance.


               Petitioner has not demonstrated how his trial attorney should
               have been responsible for doing that. He has not explained why
               he did not give his attorney the information about his family
               members or their possible value as witnesses. He has not
               demonstrated poor performance and thus fails on the first
               Strickland prong.


               Petitioner also fails on the second Strickland prong. The
               condition of the garage—and Angela Husband’s credibility on
               that point—were extremely minor points. The relevance of these
               topics was miniscule compared to the core facts of the case
               outlined above. The outcome of the trial would not have been
               different even if trial counsel had called family members to
               describe the condition of the garage.


       Appellant’s App. Vol. III pp. 88-91.


[23]   “Counsel is afforded considerable discretion in choosing strategy and tactics,

       and we will accord those decisions deference.” Smith v. State, 765 N.E.2d 578,

       585 (Ind. 2002). “A strong presumption arises that counsel rendered adequate

       assistance and made all significant decisions in the exercise of reasonable

       professional judgment.” Id. “We recognize that even the finest, most


       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 13 of 31
       experienced criminal defense attorneys may not agree on the ideal strategy or

       the most effective way to represent a client.” Id. “Isolated mistakes, poor

       strategy, inexperience, and instances of bad judgment do not necessarily render

       representation ineffective.” Id. Whether a lawyer performed reasonably under

       the circumstances is determined by examining the whole of the lawyer’s work

       on a case. Brightman v. State, 758 N.E.2d 41, (Ind. 2001). “A defendant must

       offer strong and convincing evidence to overcome the presumption that counsel

       prepared and executed an effective defense.” Id.


[24]   Giger essentially challenges his trial counsel’s strategy. His trial counsel

       testified at the post-conviction hearing that his strategy was to portray Greene

       as an alternate suspect for the crime. Giger’s trial counsel found Greene’s story

       to be “pretty wild and unbelievable.” PCR Tr. p. 227. At the trial, Giger’s

       counsel cross-examined the witnesses at issue and challenged their credibility.

       Although Giger now argues that his trial counsel should have cross-examined

       the witnesses more extensively on certain topics, his trial counsel had

       significant discretion on strategy, and as a whole, his performance was not

       deficient.


[25]   Even if Giger could show that his trial counsel was deficient, he cannot

       demonstrate prejudice from the alleged deficiencies. In his interview with

       police after the murder, Giger admitted that he was with Thorpe on the night of

       his death and that he was trying to get drugs from Thorpe. Giger claimed that

       he was driving around with Thorpe and that they stopped at a house for

       Thorpe. He claimed that he kept Thorpe’s drugs in the car and that Thorpe

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 14 of 31
       took the car keys into the house. According to Giger, he saw Thorpe running

       down the street a few minutes later and followed him. He claims to have found

       Thorpe dead and claims to have taken his car keys from Thorpe’s pocket.

       Giger was found in possession of the murder weapon (a knife) and cash covered

       in Thorpe’s blood, and he admitted to consuming Thorpe’s drugs. Thorpe’s

       blood was also found on Giger’s car, clothing, and shoe. Thorpe had been

       stabbed twenty-one times, including some postmortem injuries. Even if Giger’s

       trial counsel was deficient for failing to cross-examine the witnesses more

       extensively on certain topics, the overwhelming evidence supported Giger’s

       conviction, and Giger has failed to demonstrate that he was prejudiced by trial

       counsel’s alleged deficiencies.


                                    C. Evidence of Peaceful Character

[26]   Giger argues that his trial counsel was ineffective for failing to present evidence

       of his peacefulness. Giger argues that his trial counsel should have called

       James Williams as a witness. At the post-conviction hearing, Williams testified

       that he had known Giger well when they were children and, to a lesser extent,

       as adults. Williams testified that, in his experience, Giger was a peaceful

       person. However, Williams also testified that he was unaware of Giger’s drug

       usage.


[27]   On this argument, the post-conviction court found:

                Petitioner complains that his lawyer should have called Pastor
                James Williams (or anyone else) to testify to Petitioner’s


       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 15 of 31
               “character for peacefulness” during the trial, and that the failure
               to call such witnesses constituted ineffective assistance.


               The substance of what James Williams would have been able to
               testify to was explored at the January 2015 evidentiary hearing.
               His basis for knowledge was limited, constituting mostly of
               contact with Petitioner from decades earlier (although he had
               some continued, albeit lesser, contact with Petitioner as adults.)
               Mr. Williams lacked knowledge of much of Petitioner’s adult
               lifestyle and activities, and Mr. Williams lacked knowledge of the
               facts of the case.


               Mr. Weisman testified that he successfully conveyed to the jury
               through other witnesses the basic fact that Petitioner was “a good
               guy” even though he didn’t specifically call a character witness
               during trial. He further testified that in his experience, juries did
               not respond well to defense character witnesses. Indeed, this
               Court agrees that attempting to introduce character evidence on
               behalf of a Defendant who smoked crack cocaine (acquired from
               a dead man) with a prostitute after being stained with the dead
               man’s blood would probably have backfired. There was no
               deficient performance, and no possibility of prejudice.


       Appellant’s App. Vol. III p. 91.


[28]   Giger’s trial counsel testified at the post-conviction hearing that he did not

       “normally bring three or four or five people up here to say, hey, he’s a good

       guy. [He did not] find that effective.” PCR Tr. p. 479. He thought “it

       sometimes can be taken as pandering to the jury,” so it was not usually his

       course of action to present such evidence. Id. This was a strategic decision, and

       trial counsel is afforded considerable discretion in choosing strategy. Smith, 765

       N.E.2d at 585. Giger has failed to demonstrate that trial counsel’s performance

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 16 of 31
       was deficient. Further, given the overwhelming evidence against Giger, even if

       trial counsel had presented Williams’s testimony, Giger has failed to

       demonstrate that the result of the proceeding would have been different.


                                   D. Failure to Redact Interrogation

[29]   Giger argues that his trial counsel was ineffective for failing to redact certain

       portions of the police interrogation of him. Specifically, Giger complains about

       the following statements by police during the interrogation:


                    You expect I’m gonna sell this story to somebody that’s
                     gonna say now wait a minute, don’t we have some
                     problems here?


                    How are we supposed to sell this story to somebody and
                     believe your story when the most important things about
                     this, you left out!


                    Well I know you were at Angie’s house, you came in there
                     huffin and puffin and all sweating and out of god****
                     breath!


                    And you had blood all over your pants.


                    So all the blood they see on your hands and all the blood
                     they see on your pants, that come from you slipped on
                     your . . . .


                    What would they lie about, why would they lie about you
                     coming in there being all sweaty, out of breath, thumping
                     thumping, acting like something was strange, acting like
                     something’s going on, got blood all over your pants, got

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 17 of 31
                       blood all over your hands and you got a pocket full of
                       money and you’re flashing all this money at ‘em. You
                       gonna tell that they’re lying about that.


                    You know what I see, you think I want to sell this story to
                     somebody else. I’ll tell you what story I’m gonna sell to
                     you, you put yourself in this, and I ain’t got . . . I’m
                     convinced that you ain’t telling me the truth. Ok. You
                     didn’t take nothing but the keys out of his pocket but the
                     money laying up on the god**** dresser’s got blood all
                     over it . . . .


                    So the money you would have gotten would have come
                     from Chicago. Now you need to explain the fact that the
                     victim’s blood is on the . . . let me finish . . . is on the
                     money that you brought back from Chicago after you
                     changed clothes and washed your hands. Shouldn’t be
                     there!


                    So you would have had to have blown $350.00 someplace.


                    This is a hard one man, serious, I want to believe you, I
                     really do. But it’s just not adding up.


                    I’m looking at this knife and it’s got blood on it and I’m
                     thinking to myself it can’t be this easy.


       Appellant’s Br. pp. 53-54. Giger argues that his trial counsel should have

       requested a redaction of the interrogation or sought a limiting instruction.


[30]   The post-conviction court rejected Giger’s argument and found:




       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 18 of 31
               Petitioner’s interview with police was admitted at trial.
               Petitioner claims that his trial lawyer should have attempted to
               have the interview recording redacted, or should have requested
               a limiting admonishment, because the recording contained
               “inadmissible and prejudicial comments made by police.”


               Mr. Weisman testified during the PCR proceedings that he didn’t
               believe that anything on the recording was especially egregious or
               out of the ordinary, and thus that it didn’t require redaction or an
               admonishment. He further testified that he believed that
               allowing the jury to see and consider the interview in its
               entirety—and without comment by the Court—was in
               Petitioner’s best interest. He believed that Petitioner held up very
               well in spite of strong pressure from police, and he wanted the
               jury to see that in an unvarnished way.


               This Court, especially under the deferential review required when
               considering trial attorney’s performance, cannot find that this
               was deficient performance.


       Appellant’s App. Vol. III p. 92.


[31]   Giger’s trial counsel testified at the post-conviction hearing that the “statements

       by the police officers were pretty standard type stuff they are using to try and get

       information or elicit more information or elicit a confession.” PCR Tr. p. 467.

       He thought that Giger did “so well holding up to their . . . browbeating him that

       [he] thought [the interrogation] did him more good than bad.” Id.

       Additionally, Giger’s trial counsel used the interrogation statement regarding

       the investigation being “easy” during his cross-examination of the detective to

       point out that the detective did not look at other suspects after finding the blood

       in Giger’s car. Trial Tr. p. 1006. The admission of the police interrogation was

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 19 of 31
       a matter of strategy, and Giger has failed to demonstrate that his performance

       was deficient.


[32]   To the extent that Giger’s counsel should have requested a limiting instruction,

       we conclude that Giger was not prejudiced by the alleged deficiency. See

       Washington v. State, 808 N.E.2d 617, 624-25 (Ind. 2004) (“[A]lthough a trial

       court has no affirmative duty to consider giving an admonishment in the

       absence of a party’s request, it is error to admit statements by an interrogating

       officer without any limiting instruction or admonishment.”). As the State

       points out, “most of the statements reflect evidence that was ultimately

       produced at trial such as evidence of Petitioner’s shortness of breath and

       statements about the blood evidence.” Appellee’s Br. p. 38. The statements at

       issue merely challenge Giger’s credibility or discuss cumulative evidence. Giger

       failed to demonstrate that, but for trial counsel’s failure to redact or request a

       limiting instruction, the result of the proceeding would have been different.


                                   E. Failure to Object to Instructions

[33]   Giger contends that his trial counsel was ineffective for failing to object to

       certain jury instructions regarding direct and circumstantial evidence.

       Specifically, Giger argues that his trial counsel should have objected to the

       following instructions:


               Circumstantial evidence means evidence that proves a fact from
               which an inference of the existence of another fact may be
               drawn. An inference is a deduction of fact that may logically and
               reasonably be drawn from another fact or group of facts. You are
               entitled to draw reasonable inferences from the evidence. It is not
       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 20 of 31
               necessary that facts be proved by direct evidence. Both direct
               evidence and circumstantial evidence are acceptable as a means
               of proof. The State is not required to prove the essential elements of
               murder by eyewitness observation. Circumstantial evidence may
               establish the guilt of the defendant beyond a reasonable doubt.
               However, in a case such as this where the evidence is entirely
               circumstantial, in order to convict, such circumstantial evidence
               must be so conclusive a character and point so surely and
               unerringly to the guilt of the accused as to exclude every
               reasonable hypothesis of innocence.


       Tr. p. 1378 (emphasis added). Giger takes issue with the portions of the

       instructions in italics. According to Giger, the first and third italicized

       sentences were objectionable “on the basis of repetition,” and the second

       italicized sentence unnecessarily highlighted “the acceptability of the State’s

       lack of eyewitness evidence.” Appellant’s Br. p. 56.


[34]   Giger also challenges his trial counsel’s failure to object to the italicized

       portions of the following instruction:

               You are the only judges of the weight of both the physical
               evidence and the testimony—believability, or “credibility”—of
               each of the witnesses. In considering the testimony of a
               witness—including the testimony of the defendant, who is a
               competent witness in his own behalf—you may take into account
               the witness’s ability and opportunity to observe those things he or
               she testified to, the witness’s memory, manner and conduct while
               testifying, any interest the witness may have in this case, any bias
               the witness may have for or against any party to this suit, any
               relationship with other witnesses or interested parties, and the
               reasonableness of the witness’s testimony when viewed with all
               of the other evidence in the case. The credibility of the defendant’s
               testimony should be evaluated by you according to the same criteria that

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 21 of 31
        you use for any other witness. You should try to fit the evidence to
        the presumption that the defendant is innocent. Each witness in
        a trial takes an oath to testify truthfully. Therefore, you should
        not disregard the testimony of any witness without a reason, and
        then only after careful consideration. The testimony of a witness
        does not have to be corroborated by other evidence for you to believe that
        witness. However, if you find so much conflict between the
        testimony of two or more witnesses that you cannot believe each
        of them, then you must decide which witnesses you will believe
        and which you will disbelieve. Or, if you decide that any witness’s
        testimony is so unreasonable as to be unworthy of belief, you may
        disbelieve that witness. Furthermore, you should evaluate the testimony
        of each witness in light of all relevant physical evidence, and the
        reasonable inferences drawn from such physical evidence. If you have
        drawn reasonable conclusions about the physical evidence that prove
        inconsistent with the testimony of any witness, then you should
        reconsider both the physical evidence and that witness’s testimony in
        order to resolve such apparent inconsistency. In other words, you must
        decide in such a case whether your conclusions drawn from the physical
        evidence are invalid, or whether you disbelieve the witness, or whether
        you are unable to draw any conclusion.


        In weighing the evidence to determine what or whom you will
        believe, you should use your own knowledge, experience and
        common sense gained from day to day living. You may find that
        your determination of the truth is not controlled by the number
        of witnesses who testify to a particular fact, or on one side or the
        other, or the quantity of evidence on a particular point. You
        should give the greatest weight to that evidence which convinces
        you most strongly of its truthfulness.


Id. at 1378-81 (emphasis added). According to Giger, the instruction “pitted

testimonial evidence against physical evidence” and “did not allow for the jury




Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 22 of 31
       to accept both the physical evidence pointing to Giger’s possible guilt but to

       also believe Giger’s testimony that he was innocent.” Appellant’s Br. p. 58.


[35]   On this issue, the post-conviction court found:


               Petitioner complains that his trial counsel should have objected
               to the final jury instructions regarding circumstantial evidence
               and the jury’s responsibility to evaluate evidence. He claims that
               these instructions were erroneous, and that therefore a good trial
               lawyer should have kept the jury from being exposed to these
               instructions.


               Petitioner has waived this argument. He did not raise complaints
               about the instructions on direct appeal. Collateral attacks
               regarding the propriety of the instructions given should have been
               raised on appeal. If an issue was known and available, but not
               raised on direct appeal, it is waived. Timberlake v. State, 753
               N.E.2d 591, 597 [(Ind. 2001)](citing Rouster v. State, 705 N.E.2d
               999, 1003 (Ind. 1999)).


               Secondly, although Petitioner complains that these instructions
               were improper, he has not claimed that they incorrectly state the
               law. He has instead complained that they are inappropriate or
               confusing or repetitive. He has offered no on-point legal
               authority supporting that assertion. This Court is not aware of
               any binding precedent holding that the instructions at issue were
               faulty as a matter of law. This Court continues to find that the
               instructions were appropriate as a matter of law.


               Without demonstrating that the instructions were faulty as a
               matter of law, it is apparent that Petitioner’s claim of ineffective
               assistance on this issue must fail. “Where a subject is properly
               covered by a given instruction, it is not error to fail to give a
               tendered instruction on the same subject.” McCurry v. State, 558

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 23 of 31
               N.E.2d [817, 819] (Ind. 1990). In fact, it is apparent that this
               claim should be more appropriately addressed as a direct
               challenge to the instructions rather than a complaint about
               instructions that is couched in terms of “ineffective assistance.”


       Appellant’s App. Vol. III pp. 89-90.


[36]   We first address the post-conviction court’s finding that Giger waived this

       argument by failing to raise an issue regarding the instructions on direct appeal.

       Giger raises this issue in the context of ineffective assistance of trial counsel, not

       a freestanding issue. Consequently, Giger’s argument is properly raised, and

       the post-conviction court erred by finding that it was waived. See Wilkes v. State,

       984 N.E.2d 1236, 1240 (Ind. 2013) (noting that claims of ineffective assistance

       of counsel may be proper grounds for post-conviction proceedings).


[37]   We conclude, however, that Giger has failed to demonstrate ineffective

       assistance of counsel regarding this issue. The italicized portions of the

       instructions merely expound on the concepts of weighing the evidence, drawing

       inferences from the evidence, and judging a witness’s credibility. Giger has not

       shown that the instructions misstated the law. Further, the instructions do not,

       as Giger asserts, unnecessarily highlight certain pieces of evidence or require the

       jury to choose between the physical evidence and Giger’s testimony. Giger has

       also failed to demonstrate that, but for trial counsel’s alleged deficiency in

       failing to object to these instructions, the result of the proceeding would have

       been different. We cannot say that Giger’s trial counsel was deficient or that

       Giger was prejudiced by any alleged deficiency, and Giger’s claim fails.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 24 of 31
                          F. Failure to Object to Prosecutorial Misconduct

[38]   Giger argues that the deputy prosecutor committed misconduct during closing

       argument by “urg[ing] conviction based on facts it knew or should have known

       were false relative to the connection between Greene, Johnson and Thorpe, and

       reenact[ing] the murder improperly appealing to the jury’s emotions rather than

       their reasoning.” Appellant’s Br. p. 58. Giger does not explain how the deputy

       prosecutor’s closing argument was false, cites no authority for the proposition

       that the deputy prosecutor’s conduct during closing arguments was improper,

       and fails to explain how Giger was prejudiced. Giger has waived this issue by

       failing to support it with cogent argument. See Ind. Appellate Rule 46(A)(8);

       Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005) (holding that an

       argument was waived for failure to support it with cogent reasoning), trans.

       denied.


                              G. Failure to Present Mitigating Evidence

[39]   Giger argues that his trial counsel failed to present mitigating evidence at the

       sentencing hearing. According to Giger, his trial counsel should have called

       Giger’s family and Williams to testify at the sentencing hearing regarding

       Giger’s difficult upbringing, kindness during his younger years, faithfulness,

       and closeness to his family.


[40]   The post-conviction court rejected the claim and found:

                 Petitioner presented evidence during the PCR hearings from his
                 family members and a family friend. They testified that if they
                 had been called to testify during sentencing, they would have

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 25 of 31
               talked about Petitioner’s good character, described him as a good
               man or family man, and that they would have asked the Court to
               have mercy. Petitioner claims that the failure to actually present
               this evidence at his sentencing hearing meant that his trial
               attorney was ineffective.


               First, since the Court of Appeals has already reviewed the
               aggravating and mitigating factors in this case and has found the
               sentence to be appropriate, it appears that issues related to
               sentencing might well be res judicata and thus off-limits for a
               PCR.


               Second, at sentencing this Court already considered Petitioner’s
               connections to family, his employment history, and other
               mitigating factors at sentencing. Having now heard and
               evaluated the testimony available from Petitioner’s family
               members, this Court concludes that such testimony would not
               have made a difference in the sentence imposed.


               Third, Petitioner has not demonstrated why this was his lawyer’s
               responsibility. During his PCR hearing, he admitted that he had
               not asked his lawyer to call these potential witnesses. This Court
               informed him of his right to call such witnesses when the
               sentencing hearing was set.


       Appellant’s App. Vol. III pp. 92-93.


[41]   The post-conviction court first found that the claim was barred by res judicata

       because a sentencing claim was presented on direct appeal. Again, Giger raises

       this claim in the context of ineffective assistance of trial counsel, not as a

       freestanding issue. Consequently, the issue is properly raised, and we will

       address it.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 26 of 31
[42]   At the sentencing hearing, Giger’s trial counsel noted Giger’s “total lack of

       criminal history,” his “solid work history,” and the fact that his income “helped

       to support his mother.” Trial Sentencing Tr. p. 8. The trial court recognized

       that Giger was very helpful to his family, had no prior criminal history, and had

       been working; however, the trial court found the “particular circumstances of

       the day and of the evening . . . to be extremely aggravating.” Id. at 25-26. The

       trial court especially noted the fact that Giger was attempting to obtain cocaine

       on the evening of the offense for himself and for Husband so that he could

       obtain sexual favors. The trial court also noted that Thorpe was stabbed

       twenty-one times, which he found was an “extreme aggravator.” Id. at 26. The

       trial court then found that the “particularly vicious murder [was] a matter of

       great aggravation which outweighs the mitigators . . . .” Id. at 27. On direct

       appeal, we found that the trial court properly sentenced Giger. 1


[43]   Even if Giger’s trial counsel had presented additional evidence regarding fifty-

       one-year-old Giger’s childhood, kindness during his younger years, faithfulness,

       and closeness to his family, it was unlikely to have resulted in a different

       sentence. Each of the witnesses acknowledged that they had limited contact

       with Giger during his later years and either suspected or were aware that he was

       using illegal drugs. The trial court put great weight on the brutality of the

       offense and on Giger’s criminal activity on the evening of the murder. Given



       1
        This court did find the probationary period and the restitution ordered by the trial court to be problematic
       and reduced the probationary period and remanded regarding the restitution. See Giger, No. 71A05-0306-CR-
       286, slip op. at 14-15.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016        Page 27 of 31
       the viciousness of the murder, there is no reasonable probability of a different

       sentence even if trial counsel had presented the testimony from Giger’s sisters

       and Williams.


                                            H. Cumulative Effect

[44]   Giger next argues the cumulative effect of the alleged deficiencies discussed

       above resulted in “denying him the advocacy on which our system depends and

       that is promised by the Sixth Amendment.” Appellant’s Br. p. 59. The

       cumulative effect of a number of errors can render counsel’s performance

       ineffective. Grinstead, 845 N.E.2d at 1036. For the most part, however, Giger

       has failed to demonstrate that his trial counsel’s performance was deficient.

       Moreover, given the overwhelming evidence against Giger, any alleged

       deficiency did not result in prejudice to Giger. Consequently, his claim of

       cumulative effect fails. See id. at 1037 (“Most of Grinstead’s contentions of

       deficient performance are not well taken, and the modest nature of counsel’s

       one or two failings make them insufficient to overcome the strong presumption

       that counsel performed adequately within the meaning of the Sixth

       Amendment.”).


                            II. Ineffective Assistance of Appellate Counsel

[45]   Giger next claims that he was denied the effective assistance of appellate

       counsel. Ineffective assistance of appellate counsel claims generally fall into

       three basic categories: (1) denial of access to an appeal; (2) waiver of issues; and

       (3) failure to present issues well. Reed v. State, 856 N.E.2d 1189, 1195 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 28 of 31
       2006). Giger’s claim falls under the third category. Our supreme court has held

       that “[c]laims of inadequate presentation of certain issues, when such were not

       deemed waived in the direct appeal, are the most difficult for convicts to

       advance and reviewing tribunals to support” for two reasons. Bieghler v. State,

       690 N.E.2d 188, 195 (Ind. 1997), cert. denied.


               First, these claims essentially require the reviewing tribunal to re-
               view specific issues it has already adjudicated to determine
               whether the new record citations, case references, or arguments
               would have had any marginal effect on their previous decision.
               Thus, this kind of ineffectiveness claim, as compared to the
               others mentioned, most implicates concerns of finality, judicial
               economy, and repose while least affecting assurance of a valid
               conviction.


       Id. Second, “an Indiana appellate court is not limited in its review of issues to

       the facts and cases cited and arguments made by the appellant’s counsel.” Id.

       As a result, “an ineffectiveness challenge resting on counsel’s presentation of a

       claim must overcome the strongest presumption of adequate assistance.” Id. at

       196. “Relief is only appropriate when the appellate court is confident it would

       have ruled differently.” Id.


[46]   According to Giger, his appellate counsel “misstated the record when he said

       that Giger testified he had seen Thorpe run from the house” and failed to file a

       reply brief to correct the State’s assertion that Giger “testified that he watched

       Thorpe run from the house, he gave chase, and then he found Thorpe’s body.”

       Appellant’s Br. p. 63. Giger asserts he actually testified that he saw Thorpe

       walk to the side of the house and that he pulled the car around to the front

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 29 of 31
       where he smoked crack cocaine in his car. He then saw Thorpe running up the

       street. After a few minutes, he followed Thorpe and found him on the ground.

       This court’s direct appeal opinion stated:


               Giger claims he saw Thorpe running down the street and Giger
               chased him because Thorpe had Giger’s car keys. Giger claims
               that he fell while chasing Thorpe. After falling, Giger saw a knife
               on the ground and picked it up. He claims that he found
               Thorpe’s body a few feet from the knife and was unable to rouse
               him.


       Giger, No. 71A05-0306-CR-286, slip op. at 3. Giger argues that “Appellate

       counsel’s failure to correctly state the facts, correct the State’s inaccurate

       version, and challenge the Appellee’s faulty conclusions prejudiced Giger

       because the incorrect facts may have given rise to the false impression that the

       evidence against Giger was overwhelming.” Id. at 64.


[47]   The post-conviction court rejected Giger’s argument and found:

               Petitioner has argued that appellate counsel was ineffective.
               Petitioner has not offered any facts of testimony or evidence
               regarding these claims, although there have been evidentiary
               hearings held on three separate days over the time span of a year.
               In all aspects, the law is with the State and against the Petitioner.
               The Petitioner is entitled to no relief on any of his claims.


       Appellant’s App. Vol. III p. 94.


[48]   Both Giger’s direct appeal appellant’s brief and the State’s direct appeal

       appellee’s brief summarize the facts and note that Giger saw Thorpe running


       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 30 of 31
       down the street, which is supported by the evidence presented at the jury trial.

       Moreover, in Giger’s statement to the police, he stated that Thorpe was running

       from the house. Neither Giger’s appellate counsel nor the State misstated the

       facts in their briefs. Even if Giger’s appellate counsel misstated the facts or

       should have filed a reply brief to correct the alleged misstatement by the State,

       we cannot say that Giger was prejudiced by the alleged deficiency. Giger’s

       argument concerns a minor piece of evidence presented at the trial. Given

       Giger’s possession of the bloody knife, the DNA evidence, and the other

       evidence of his guilt, he has failed to prove that the outcome of the appeal

       would have been different.


                                                 Conclusion
[49]   The post-conviction court properly denied Giger’s claims of ineffective

       assistance of trial counsel and ineffective assistance of appellate counsel. We

       affirm.


       Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016   Page 31 of 31
