MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any
                                                                                Jul 30 2019, 9:22 am
court except for the purpose of establishing
the defense of res judicata, collateral                                             CLERK
                                                                                Indiana Supreme Court
estoppel, or the law of the case.                                                  Court of Appeals
                                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Russell W. Brown, Jr.                                     Curtis T. Hill, Jr.
King, Brown & Murdaugh, LLC                               Attorney General of Indiana
Merrillville, Indiana
                                                          Ellen H. Meilaender
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason Tibbs,                                              July 30, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-PC-1085
        v.                                                Appeal from the LaPorte Circuit
                                                          Court
State of Indiana,                                         The Honorable Thomas J.
Appellee-Respondent.                                      Alevizos, Judge
                                                          Trial Court Cause No.
                                                          46C01-1705-PC-9



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019                           Page 1 of 14
                                        Statement of the Case
[1]   Jason Tibbs appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Tibbs raises two issues for our review, which we consolidate

      and restate as whether the post-conviction court clearly erred when it concluded

      that Tibbs had not received ineffective assistance from his trial attorneys.


[2]   We affirm.


                                  Facts and Procedural History
[3]   The facts underlying Tibbs’s conviction for murder were stated by our Court in

      his direct appeal:


              On March 26, 1993, sixteen-year-old Rayna Rison was working
              at the Pine [L]ake Veterinary Hospital (“the clinic”) in LaPorte
              County. She had a date scheduled that evening with her
              boyfriend, Matt Elser. Rison was scheduled to finish work at
              approximately 6:00 p.m., and Elser was waiting for Rison at her
              house. When Rison failed to return home, Elser called the clinic
              and then began looking for her. Elser first went to the clinic and
              noticed Rison’s car was not there.


              At approximately 7:30 p.m. that same day, someone observed
              what would later be identified as Rison’s car parked along a road
              with its hood up. The police recovered the car the next day.
              Inside, police found a ring, which was later identified as
              belonging to Tibbs. On April 27, 1993, Rison’s dead body was
              discovered in a pond. The forensic pathologist who performed
              Rison’s autopsy concluded the cause of her death was asphyxia
              due to cervical compression—strangulation—and that her death
              was a homicide.



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 2 of 14
        Tibbs and Rison were friends and dated briefly in middle school
        or junior high school. By 1993, Tibbs had dropped out of high
        school but was still in touch with Rison and still had strong
        romantic feelings for her. On the day Rison disappeared, Tibbs
        contacted his friend Eric Freeman in the late afternoon and asked
        Freeman to pick him up and drive him to the clinic. Freeman
        borrowed his girlfriend Jennifer Hammons’s (“Jennifer”) Buick
        and picked Tibbs up at his house. Tibbs had previously
        introduced Rison to Freeman as his girlfriend, and, on the day
        Rison disappeared, Tibbs told Freeman he “wanted to try to
        work things out with [Rison].”


        When Freeman and Tibbs arrived at the clinic, Tibbs went inside
        to speak with Rison. After a short time, Tibbs and Rison came
        out of the clinic and talked; then they began to argue about their
        relationship. Tibbs and Rison got in the back seat of Jennifer’s
        car, and the three “went driving.” Tibbs and Rison continued
        arguing. Either Tibbs or Rison asked Freeman to pull over. He
        did, and Tibbs and Rison got out and continued arguing behind
        the car. According to Freeman, Rison “just didn’t want to be
        with [Tibbs].” At some point, Freeman got out of the car and
        told Tibbs and Rison that he wanted to leave. Tibbs and Rison
        continued to argue, and Freeman observed Tibbs hit Rison then
        choke her with his hands. Freeman got back in the car, and
        Tibbs told him to open the trunk. Tibbs put Rison in the trunk,
        and Freeman drove back to the home of Rick and Judy
        Hammons, Jennifer’s parents, where Freeman lived at the time.


        When they arrived, Freeman parked the car in the Hammonses’
        pole barn. Freeman and Tibbs argued, and Tibbs stated, “If I
        can’t have her nobody can.” After a short time, they left to get
        Rison’s car. After Freeman and Tibbs left the Hammonses’ barn,
        they returned to the clinic. Tibbs drove Rison’s car away, and
        Freeman followed him in Jennifer’s car. Together, the men
        dumped Rison’s body in a pond, and Tibbs weighed it down with
        logs. Freeman, alone, then returned to the Hammonses’ house in

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 3 of 14
        Jennifer’s Buick. Later that evening, Tibbs stopped by the
        Hammonses’ house, and Freeman gave him the letter jacket that
        had been left in the back seat of the Buick. The jacket was later
        discovered hanging in a tree and identified as belonging to Elser.


        Unbeknownst to Freeman and Tibbs, Rickey Hammons
        (“Rickey”), Rick and Judy Hammons’s fourteen-year-old son,
        was in the loft of the barn smoking marijuana when they arrived
        at the Hammonses’ property. Rickey observed someone back
        Jennifer’s car into the pole barn. He saw Tibbs close the barn
        doors and Freeman get out of the driver’s seat. Rickey heard
        Freeman and Tibbs arguing and saw Freeman open the trunk of
        the car. Rickey saw a young, white woman in the trunk. “She
        was an off color, like—she wasn’t moving. She was—I don’t
        know. She didn’t look like she had a lot of color in her face.”
        Rickey did not say anything to Freeman and Tibbs. After the
        men argued about what to do next, Rickey saw them leave in the
        car. When Rickey saw Rison’s picture in the newspaper the next
        day, he recognized her as the girl he saw in the trunk of his
        sister’s car. He did not tell anyone about what he saw in the pole
        barn.


        Ray McCarty was Rison’s brother-in-law. He was married to
        Rison’s sister Lori McCarty (“Lori”). In 1991, McCarty
        plead[ed] guilty to Class D felony child molesting. Rison was the
        victim, and she became pregnant as a result of that molestation.
        McCarty was sentenced to serve three years on probation and
        was still on probation when Rison was killed. McCarty was
        indicted for Rison’s murder near the time she was killed, but the
        State later dismissed the charges.


        For fifteen years, Rison’s murder remained unsolved. In 2008,
        Rickey, who now was serving a sentence for an unrelated
        murder, contacted the police in order to tell them what he saw in
        his parents’ barn in 1993. Rickey testified he neither received nor
        sought any benefit in exchange for his testimony. As a result of
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 4 of 14
        Rickey’s information, investigators located Freeman and granted
        Freeman immunity in exchange for the information he had
        regarding Rison’s murder. In 2013, the State charged Tibbs with
        murder. Freeman gave eyewitness testimony against Tibbs
        during Tibbs’s trial.


        McCarty testified during Tibbs’s case-in-chief that at
        approximately 5:40 or 5:45 p.m. on the night Rison disappeared,
        he looked at a house for sale directly across the street from the
        clinic. McCarty testified that after he left the house, he drove to
        the clinic to ask Rison if she knew where Lori was. McCarty
        testified the exchange with Rison took “[h]alf a minute,” and
        then he left the clinic. McCarty admitted he told police more
        than one story regarding his whereabouts the night Rison
        disappeared. McCarty stated that he initially lied to police in
        order to prevent Lori from learning he had picked up a female
        hitchhiker that night because it might upset her. McCarty
        testified he did not threaten to harm Rison if she told anyone
        about his illegal sexual contact with her. Lori testified she did
        not recall telling a police officer that she vacuumed out the back
        of McCarty’s car before police searched it, nor did she remember
        McCarty asking her to do so.


        During his trial, Tibbs attempted to ask Officer Timothy Short,
        who interviewed both McCarty and Lori, whether McCarty
        asked Lori to vacuum out his car before the police searched it.
        The trial court sustained the State’s objection to the question.
        Tibbs also sought to question McCarty about the details of his
        divergent stories to police, but the trial court prohibited him from
        doing so.


        During an offer of proof, McCarty testified he was indicted for
        Rison’s murder but was not tried. He also testified that he
        initially told police he was at a pig farm in the southern part of
        the county around or at the time Rison disappeared. As part of
        his offer of proof, Tibbs offered Rison’s 1989 statement to police
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 5 of 14
              regarding McCarty’s molestation. The statement states,
              “[McCarty] said that ‘if I didn't do as he asked of me he would
              hurt me, and he said that if I ever told, he would KILL me.’”


              Detective Brett Airy, who began re-investigating Rison’s death in
              2008, testified during an offer of proof that he reviewed the
              reports made during the original murder investigation. He
              testified McCarty did not admit he had contact with Rison at the
              clinic until May 11, 1993, approximately six weeks after Rison
              disappeared, and further testified about the details of McCarty’s
              differing stories regarding his whereabouts at the time Rison
              disappeared.


              In November 2014, a jury found Tibbs guilty of murder. The
              trial court sentenced Tibbs to forty years in the Department of
              Correction. . . .


      Tibbs v. State, 59 N.E.3d 1005, 1008-11 (Ind. Ct. App. 2016) (alterations in

      original; citations to the record omitted), trans. denied (“Tibbs I”).


[4]   On direct appeal, Tibbs raised three issues for our review: “whether the trial

      court abused its discretion by excluding evidence of an alleged third-party

      perpetrator,” namely, McCarty; “whether the trial court abused its discretion by

      excluding impeachment evidence” relating to Freeman’s interview with

      Detective Airy; and “whether the trial court properly denied Tibbs’s Trial Rule

      60(B) motion for relief from judgment,” which he had filed on the ground that

      Rickey had, contrary to his testimony at trial, received a benefit from the State

      for that testimony. Id. at 1008.


[5]   We affirmed Tibbs’s conviction. On the first issue, we held as follows:

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 6 of 14
              the evidence Tibbs sought to introduce—that McCarty was
              indicted for Rison’s murder; that in 1989 Rison reported
              McCarty threatened to kill her if she disclosed he sexually
              molested her; that McCarty allegedly asked Lori to clean out his
              car; and the details of McCarty’s conflicting statements related to
              his whereabouts around the time Rison disappeared—was
              neither sufficiently exculpatory nor relevant evidence of a third-
              party perpetrator. None of the excluded evidence made it less
              probable that Tibbs murdered Rison or that McCarty was
              responsible for her murder as required under Rule of Evidence
              401.


      Id. at 1013. We further stated:


              Assuming, without deciding, that the trial court’s exclusion of the
              fact that McCarty was indicted for Rison’s murder did somehow
              infringe on Tibbs’s rights to confront and cross-examine, we
              conclude such error was harmless. McCarty’s testimony was not
              central to (or even part of) the prosecution’s case against Tibbs,
              and the State’s case against Tibbs was extremely strong and
              included eyewitness testimony. We also note that Tibbs did
              successfully present evidence from which the jury could have
              concluded McCarty harbored a bias or motive to testify the way
              he did. We therefore conclude beyond a reasonable doubt that
              the presumed error did not contribute to the verdict.


      Id. at 1015.


[6]   We addressed Tibbs’s second issue, regarding the alleged impeachment

      evidence, as follows:


              Tibbs next contends the trial court abused its discretion by
              excluding from evidence the transcript of Freeman’s 2013
              interview with Detectives Brett Airy and Al Williamson, which
              Tibbs states he sought to admit in order to impeach the veracity
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 7 of 14
        of the investigation. Tibbs concedes he did not submit his
        proposed evidence in an offer of proof and that we must review
        his claim for fundamental error.


                                                ***


        In his Appellant’s Brief, Tibbs states he attempted to introduce
        the transcript in order to impeach the veracity of the
        investigation. He argues that the transcript contradicts Detective
        Airy’s testimony that neither he nor Detective Williamson asked
        leading questions or suggested answers during Freeman’s 2013
        interview and that the transcript “calls into serious question
        whether Freeman’s testimony was based upon what he said he
        witnessed as opposed to the details of the investigation that the
        detectives shared with him during the subject interview.” But
        Tibbs’s line of questions for Detective Airy at the time he sought
        to introduce the transcript provides no support for his argument
        on appeal. . . . Tibbs concluded that line of questioning by
        inquiring whether Detective Airy or Detective Williamson asked
        Freeman leading questions or suggested answers during his 2013
        interview. But Tibbs did not attempt to introduce the transcript
        again, nor did he explain why he wanted to do so in the first
        place.


        In his Appellant’s Brief, Tibbs highlights several instances in the
        interview during which he contends the detectives “lead
        [Freeman] through his statement.” We note that in these
        portions of the interview Freeman gave answers (e.g., about the
        type of car he was driving when he took Tibbs to the clinic and
        the time he took Tibbs to the clinic) that differ from his trial
        testimony. We also note that Freeman admitted during his trial
        testimony that he was “scared and nervous” during his interview
        and that “at the end of [the interview]” he was honest and
        truthful. We further note that, although Tibbs cross-examined
        Freeman regarding some of the discrepancies between his 2013
        interview and his trial testimony, he did not attempt to introduce
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 8 of 14
              the transcript of the 2013 interview as impeachment evidence
              when he cross-examined Freeman.


              Based on our review of the record, it is not clear why Tibbs
              sought to have the transcript of Freeman’s 2013 interview
              admitted into evidence during Detective Airy’s testimony. To
              the extent his purpose was to highlight what he thinks were
              questionable interviewing techniques and impeach the officers’
              investigation, we conclude he has waived that argument because
              there is no support for it in the record. To the extent his purpose
              was to impeach Freeman’s testimony, we again conclude Tibbs
              has waived that argument because he did not introduce the
              exhibit at the appropriate time. Alternatively, we conclude the
              trial court’s exclusion of the transcript did not prejudice Tibbs
              because the jury was aware that Freeman was not consistently
              forthright during his interview and because Tibbs had, and took
              some advantage of, the opportunity to cross-examine Freeman
              regarding his inconsistent statements. We conclude the
              exclusion of the transcript did not infringe on Tibbs’s right to a
              fair trial and, therefore, does not rise to the level of fundamental
              error.


      Id. at 1015-17 (alterations in original; citations to the record and footnote

      omitted). We also rejected Tibbs’s third argument regarding the trial court’s

      denial of his motion to correct error.


[7]   Thereafter, Tibbs filed his petition for post-conviction relief. In that petition,

      Tibbs alleged that he had been denied the effective assistance of trial counsel.

      In particular, he alleged that his “[t]rial counsel failed to present scientific

      evidence that fibers from Ray McCarty’s vehicle were found in Rayna Rison’s

      hair.” Appellant’s App. Vol. 2 at 12. That purported “scientific evidence” was

      an FBI analysis conducted in the 1990s. Id. According to Tibbs, the failure of
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 9 of 14
      his trial attorneys to introduce that evidence at his trial in 2014 “prevented

      Tibbs from presenting more compelling evidence of third party guilt” against

      McCarty. Id. Tibbs further alleged that his “[t]rial counsel failed to

      adequately” preserve in the record “the transcript of Freeman’s interview with

      the detectives,” which, according to Tibbs, “forced [Tibbs] to overcome the

      heightened standard of fundamental error on appeal.” Id.


[8]   The post-conviction court held a fact-finding hearing on Tibbs’s petition.

      Following that hearing, the court entered findings of fact and conclusions of

      law denying Tibbs’s petition. In its findings and conclusions, the post-

      conviction court stated in relevant part as follows:


              9. [Tibbs’s trial attorney John] Thompkins testified he was aware
              of the FBI “walking back” its findings [regarding fiber analyses]
              as a result of the National Academy of Forensic Science’s 2009
              article during [Thompkins’s] trial preparation, and that a
              substantial challenge to [the FBI’s findings here] was likely.


              10. Victim Rison’s sister and wife of Ray McCarty, Lori
              McCarty, testified that Victim Rison frequently visited and
              stayed at the McCarty residence[] and also was a regular
              passenger in their vehicles.


              11. The probative value of the “fiber evidence” . . . is diminished
              by: the discrediting of forensic conclusions made prior to the
              National Academy of Forensic Sciences report published in 2009;
              and that the Victim’s sister testified that Victim Rison was a
              frequent guest and at times lived at the McCarty residence.


                                                      ***


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 10 of 14
        14. Because of the deference attorneys receive in creating trial
        strategy and the dispute in probative value of the fiber
        analysis . . . , this Court finds that the defense counsel’s judgment
        to not include . . . [the] fiber analysis is reasonable.


                                                ***


        17. [Tibbs] relies on the substance of [Freeman’s interview with
        Detective Airy] in order to attack Witness Freeman’s credibility.


        18. Reliance on the substance of the interview and the ensuing
        analysis of whether the transcripts of that interview were proper
        in its inclusion or exclusion generates a result that either an
        Abuse of Discretion or a Fundamental Error standard applies in
        reviewing the Trial Court’s decision.


        19. No matter which path is taken, a finding of prejudice must
        occur . . . .


        20. . . . [W]hich analysis applies is irrelevant because the jury
        was aware of Witness Freeman’s lack of candor and honesty in
        the police detective interviews. Additionally, [Tibbs] availed
        himself of the opportunity to cross-examine Witness Freeman
        about the prior inconsistent statements.


                                                ***


        24. The jury’s knowledge of Witness Freeman’s prior
        inconsistencies, the attempt to impeach by the Defense, and that
        Witness Freeman’s testimony was corroborated by
        overwhelming evidence all lead inevitably to two findings: that
        [Tibbs] was not prejudiced by the exclusion of Witness
        Freeman’s transcript; and that the jury’s findings were reasonably


Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 11 of 14
               based on the evidence such that any mistake argued by the
               Petitioner cannot [now] be said to have influenced the outcome.


       Id. at 69-72. This appeal ensued.


                                      Discussion and Decision
[9]    Tibbs appeals the post-conviction court’s denial of his petition for post-

       conviction relief. Our standard of review in such appeals is clear:


               “The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the
               evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
               “When appealing the denial of post-conviction relief, the
               petitioner stands in the position of one appealing from a negative
               judgment.” Id. at 274. In order to prevail on an appeal from the
               denial of post-conviction relief, a petitioner must show that the
               evidence leads unerringly and unmistakably to a conclusion
               opposite that reached by the post-conviction court. Weatherford v.
               State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
               conviction court in this case entered findings of fact and
               conclusions of law in accordance with Indiana Post-Conviction
               Rule 1(6). Although we do not defer to the post-conviction
               court’s legal conclusions, “[a] post-conviction court’s findings
               and judgment will be reversed only upon a showing of clear
               error—that which leaves us with a definite and firm conviction
               that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
               102, 106 (Ind. 2000) (internal quotation omitted).


       Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).


[10]   Tibbs asserts that he received ineffective assistance from his two trial attorneys.

       As our Supreme Court has explained:


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 12 of 14
               When evaluating an ineffective assistance of counsel claim, we
               apply the two-part test articulated in Strickland v. Washington, 466
               U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
               State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
               prong, “the defendant must show deficient performance:
               representation that fell below an objective standard of
               reasonableness, committing errors so serious that the defendant
               did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
               McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
               Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
               second prong, “the defendant must show prejudice: a reasonable
               probability (i.e. a probability sufficient to undermine confidence
               in the outcome) that, but for counsel’s errors, the result of the
               proceeding would have been different.” Id. (citing Strickland, 466
               U.S. at 694, 104 S. Ct. 2052).


       Id. at 682.


[11]   In particular, Tibbs argues that his trial attorneys were ineffective for two

       reasons. First, he asserts that they ineffectively failed to have the FBI’s 1990s

       fiber analysis admitted as evidence at his 2014 trial. Second, he asserts that

       they failed to more thoroughly impeach Detective Airy with the transcript of his

       interview with Freeman, which resulted in our court reviewing that issue under

       the heavy burden of fundamental error.


[12]   Assuming only for the sake of argument that a reasonable trial attorney would

       have done either of those things, Tibbs cannot show that the result of his trial or

       direct appeal would have been different had his attorneys done so. There is no

       dispute that the forensic fiber analysis conducted by the FBI here was based on

       flawed methodologies and that, prior to Tibbs’s 2014 jury trial, it was well


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 13 of 14
       known that those analyses were not reliable. A reasonable juror would not

       have disregarded the overwhelming evidence of Tibbs’s guilt for the sake of a

       flawed and unreliable fiber analysis.


[13]   Neither would a reasonable juror have ignored the evidence of Tibbs’s guilt had

       his attorneys used the transcript of Detective Airy’s interview with Freeman to

       more precisely critique Detective Airy on his interviewing techniques. Had

       Tibbs’s trial counsel preserved that issue for our review, we would have held

       that reversal was not required because the evidence before the jury of Tibbs’s

       guilt was so overwhelming that that transcript would not have mattered. See,

       e.g., Williams v. State, 43 N.E.3d 578, 583-84 (Ind. 2015). As we said in Tibbs I,

       the State’s evidence against Tibbs was “extremely strong.” 59 N.E.3d at 1015.

       Thus, Tibbs’s claim of ineffective assistance must fail as he cannot show

       prejudice resulting from any error his trial attorneys may have made on this

       issue.


[14]   The post-conviction court did not err when it denied Tibbs’s petition for post-

       conviction relief. Tibbs cannot show that either of the purported bases for his

       ineffective assistance of counsel claims would have been likely to result in

       different outcomes than those he received. Accordingly, we affirm the post-

       conviction court’s judgment.


[15]   Affirmed.


       Bailey, J., and May, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1085 | July 30, 2019   Page 14 of 14
