FILED
Sep 08 2016, 9:21 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott King Gregory F. Zoeller
Russell W. Brown, Jr. Attorney General of Indiana
Scott King Group
Merrillville, Indiana Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason Tibbs, September 8, 2016
Appellant-Defendant, Court of Appeals Cause No.
46A03-1501-CR-19
v. Appeal from the LaPorte Circuit
Court
State of Indiana, The Honorable Thomas J.
Appellee-Plaintiff. Alevizos, Judge
Trial Court Cause No.
46C01-1308-MR-278
Barnes, Judge.
Case Summary
[1] Jason Tibbs challenges his conviction for murder and the trial court’s
subsequent denial of his Indiana Trial Rule 60(B) motion for relief from
judgment. We affirm.
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Issues
[2] Tibbs raises three issues, which we restate as:
I. whether the trial court abused its discretion by excluding
evidence of an alleged third-party perpetrator;
II. whether the trial court abused its discretion by excluding
impeachment evidence; and
III. whether the trial court properly denied Tibbs’s Trial Rule
60(B) motion for relief from judgment.
Facts
[3] On March 26, 1993, sixteen-year-old Rayna Rison was working at the Pine
Lake 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.
[4] 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.
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[5] 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].” Tr. p. 81.
[6] 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.” Id. at 84. 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].” Id. 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.
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[7] 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.”
Id. at 87. 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 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.
[8] 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.”
Id. at 138. 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
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he saw in the trunk of his sister’s car. He did not tell anyone about what he saw
in the pole barn.
[9] Ray McCarty was Rison’s brother-in-law. He was married to Rison’s sister
Lori McCarty (“Lori”). In 1991, McCarty plead 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.
[10] 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 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.
[11] 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. Tr. p. 858. McCarty admitted he told police more than one story
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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.
[12] 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.
[13] 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 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.’” Ex. AA.
[14] 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
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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.
[15] In November 2014, a jury found Tibbs guilty of murder. The trial court
sentenced Tibbs to forty years in the Department of Correction. This appeal
ensued. Before filing his Appellant’s Brief, however, Tibbs requested, and this
court gave him, permission to file a Trial Rule 60(B) motion for relief from
judgment in the trial court. Tibbs filed his motion and argued the State, in
violation of Brady v. Maryland, withheld exculpatory evidence that Rickey
received a benefit as a result of his testimony. The trial court held an
evidentiary hearing on Tibbs’s motion. Shortly after that evidentiary hearing,
Tibbs filed an amended motion for relief from judgment and argued he had
newly discovered evidence to support his contention the State committed a
Brady violation. The trial court denied Tibbs’s requests pursuant to Trial Rule
60(B). Tibbs now appeals his conviction and the trial court’s denial of his
motion for relief from judgment.
Analysis
I. Exclusion of Alleged Third-Party Perpetrator Evidence
[16] Tibbs first contends the trial court denied him his right to present a complete
defense by excluding: 1) testimony that McCarty was indicted for Rison’s
murder; 2) Rison’s 1989 statement that McCarty threatened to kill her if she
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disclosed that he sexually abused her; 3) statements that McCarty asked Lori to
clean out his car; and 4) the details of McCarty’s inconsistent statements
regarding his whereabouts the night Rison disappeared. Tibbs contends this
evidence tends to show McCarty murdered Rison and that its exclusion was not
harmless error.
[17] We review the trial court’s ruling on the exclusion of evidence for an abuse of
discretion. Pitts v. State, 904 N.E.2d 313, 318 (Ind. Ct. App. 2009), trans. denied.
The trial court’s ruling regarding the admission of evidence will be upheld if it is
sustainable on any legal theory supported by the record, even if the trial court
did not use that theory. Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008).
We will reverse only if the trial court’s decision is clearly against the logic and
effect of the facts and circumstances. Pitts, 904 N.E.2d at 318. Generally,
errors in the exclusion of evidence are disregarded as harmless unless they affect
the substantial rights of a party. Id. However, “if error results from the
exclusion of evidence which indicates that someone else had committed the
crime, the error cannot be deemed harmless.” Allen v. State, 813 N.E.2d 349,
361 (Ind. Ct. App. 2004), trans. denied.
[18] “Evidence which tends to show that someone else committed the crime makes
it less probable that the defendant committed the crime and is therefore relevant
under [Evidence] Rule 401.” Dickens v. State, 754 N.E.2d 1, 5 (Ind. 2001) (citing
Joyner v. State, 678 N.E.2d 386, 389 (Ind. 1997)). Such evidence, however, may
be excluded “if its probative value is out-weighed by unfair prejudice, confusion
of the issues, or the potential to mislead the jury.” Pelley v. State, 901 N.E.2d
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494, 505 (Ind. 2009) (citing Ind. Evid. R. 403). “In the context of third-party
motive evidence, these rules are grounded in the widely-accepted principle that
before evidence of a third-party is admissible, the defendant must show some
connection between the third party and the crime.” Pelley 901 N.E.2d at 505.
[19] In Joyner v. State, 678 N.E.2d 386 (Ind. 1997), our supreme court concluded the
trial court abused its discretion by excluding Joyner’s proffered evidence that a
third party committed the murder for which Joyner was convicted. In that case,
Joyner unsuccessfully sought to introduce the following evidence with regard to
the third party: he had an affair with the victim; he worked in the same place as
the appellant and the victim; he saw the victim the day before the murder; he
lied to his wife about where he was the night of the murder and later told her he
had an argument with the victim on the last day she was seen alive; and he
went to work late the day after the victim disappeared and lied about his
tardiness on his time card. Joyner also successfully presented evidence that
“was consistent with [his] theory that the crime was committed by [the third
party].” Id. at 389. Joyner’s evidence included expert testimony that a hair
found inside the plastic bag covering the victim’s head excluded Joyner as the
“donor” of the hair and indicated there was a ninety-eight to ninety-nine
percent probability match with respect to the third party. Id. Under those
circumstances, our supreme court concluded “the defendant had sufficiently
connected the third party to the crime, and the excluded evidence could have
also established motive and opportunity” and remanded the case for a new trial.
Pelley, 201 N.E.2d at 505.
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[20] In Lashbrook v. State, 762 N.E.2d 756 (Ind. 2002), our supreme court rejected an
argument similar to that made in Joyner. Lashbrook wanted to introduce
evidence that a third party previously stated the victim “was gonna die.” Id. at
757. Our supreme court concluded, “In stark contrast to Joyner, the defendant
presents no material evidence that [the third party] was connected to the crime.
The phrase allegedly uttered by [the third party] that [the victim] ‘was gonna
die’ does not tend to show that [the third party] committed the murder.” Id.
[21] In Pelley, our supreme court rejected the argument that the trial court denied the
appellant his right to present a defense when it excluded evidence that a third
party had a motive to commit the murders for which Pelly was convicted.
Pelley was convicted of murdering his father, stepmother, and two sisters. He
sought to introduce evidence that his father may have been killed because
someone learned about money laundering at the Florida bank where Pelley’s
father previously worked. Pelley offered statements related to money missing
from the bank and the family’s subsequent move to Indiana, the fact the DEA
closed the bank, and that a neighbor had seen a limousine with Florida license
plates in the area of the Pelleys’ home the night of the murders.
[22] Our supreme court stated, “Pelley’s case falls between Joyner and Lashbrook, but
is much closer to Lashbrook.” Pelley, 901 N.E.2d at 505. The court explained
that Pelley’s offer of proof was comprised of hearsay statements regarding
Pelley’s father’s work at a Florida bank and “hearsay within hearsay” regarding
the limousine. Id. It further explained that Pelley did not show that the
witnesses who could testify regarding the Florida situation were competent to
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do so—they were minors at the time the relevant events transpired in Florida.
“Equally important,” the court concluded, Pelley “failed to present any
evidence connecting the bank or the limousine to the murders. Absent a more
direct connection, the trial court did not abuse its discretion in excluding this
evidence as too speculative.” Id. at 506.
[23] In some cases, our appellate courts have not reached a conclusion regarding a
direct connection between the third party and the crime and, instead, focused
specifically on the exculpatory nature of the excluded evidence.
[24] In Allen v. State, 813 N.E.2d 349 (Ind. Ct. App. 2004), trans. denied, this court
reversed a murder conviction because “Allen had the right to present evidence
that [a third party] was involved in the commission of the crimes.” Id. at 363.
In that case, the trial court excluded testimony that the witness and a third party
“cased” the Osco drug store where the murders took place; the witness
encountered the third party coming from the direction of the Osco; the third
party told the witness “he had just got some money and some people got hurt
and got killed in it”; the third party showed the witness a handgun similar to the
one used in the murders and told the witness it was “‘dirty,’ meaning it had ‘a
body attached to it, or bodies’”; and the witness saw the third party throw the
gun into the river. Id. at 362 (citations omitted). The record, this court
concluded, supported “a conclusion that [the witness’s] testimony was
exculpatory, unique, and critical to Allen’s defense.” Id. at 363.
Such evidence, this court concluded, goes to the very heart of the fundamental
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right to present exculpatory evidence, and the trial court’s exclusion of the
testimony impinged on Allen’s right to present a complete defense. Id. at 363.
[25] We conclude 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.
[26] We note that the evidence of McCarty’s alleged threat to Rison is very similar
to the evidence at issue in Lashbrook—the appellant’s statement that victim “was
gonna die”—which our supreme court concluded was not relevant. Lashbrook,
762 N.E.2d at 757. We further note that, with regard to McCarty’s inconsistent
statements regarding his whereabouts, McCarty himself admitted during his
testimony that he was not forthright when police questioned him. See Herron v.
State 10 N.E.3d 552, 557 (Ind. Ct. App. 2014) (concluding impeachment was
“improper and unnecessary” after witness acknowledged her testimony was
inconsistent with a pretrial statement and admitted she lied). Finally, like
Lashbrook and Pelley, Tibbs wholly failed to establish any direct, material
connection between McCarty and Rison’s murder similar to that which was
established by forensic evidence in Joyner.
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[27] Unlike the evidence at issue in Allen, the evidence Tibbs sought to introduce
was not “exculpatory, unique, and critical” to Tibbs’s defense. Allen, 813
N.E.2d at 363. “‘Exculpatory’ is defined as ‘“[c]learing or tending to clear from
alleged fault or guilt; excusing.”’” Albrecht v. State, 737 N.E.2d 719, 724 (Ind.
2000) (quoting Samek v. State, 688 NE.2d 1286, 1288 (Ind. Ct. App. 1997) (in
turn quoting BLACK’S LAW DICTIONARY 566 (6th ed. 1990)) (alteration in
Samek). None of the excluded evidence was relevant under Rule 401. Without
clearing even that initial hurdle, it could not meet the definition of exculpatory
evidence as required by Allen. The trial court’s exclusion of Tibbs’s proposed
evidence did not impinge on his right to present a complete defense.
[28] In addition to his general contention that the trial court’s evidentiary rulings
impinged on his right to present a defense, Tibbs argues his proffered evidence
that McCarty was charged with Rison’s murder was admissible “to show the
motive or bias of the witness.” Appellant’s Br. p. 19. In support of that
argument, Tibbs directs us to People v. Steele, 288 N.E.2d 355, 359 (Ill. 1972),
and State v. Wills, 476 P.2d 711 (Wash. Ct. App. 1970), review denied.
[29] In Steele, the appellant sought to introduce evidence that a witness in his murder
trial was accused of the same murder, in what appears to have been an attempt
to establish the witness’s bias. The witness was present at the time of the
murder and was called by the State “as [an] occurrence witness[] to the events
which transpired in the apartment prior to the arrival of [the police].” Steele,
288 N.E.2d at 358. The Illinois Supreme Court concluded the trial court should
not have excluded the evidence but noted that the witness denied any promises
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or threats influenced his testimony, with the exception that the prosecuting
attorney agreed to help him enlist in the military and leave the city. The court
further concluded, “[i]n contrast, the jury was presented with overwhelming
evidence of defendant’s guilt . . . After examination of the record we find this
error was harmless beyond a reasonable doubt and the jury would not have
reached a different verdict even if the witness would have responded
affirmatively to the question [of whether he was accused of the murder].” Id. at
360.
[30] In Wills, the appellant was convicted of murder in a case based entirely on
circumstantial evidence. The “most damaging” was testimony from a witness
who stated he observed Wills assault the victim the day before the murder in
the same area of the same warehouse in which the murder took place. The
witness further testified he said to Wills after the assault (which did not result in
the victim’s death), “Wills, you stomped that old man to death,” and that Wills
replied, “You don’t know [the victim] like I do, he’s tough, I’ve stomped him a
lot of times.” Id. at 712. Wills sought to introduce evidence that the witness,
too, had been charged with the victim’s murder, but that the charges had been
dismissed. “The purpose of the proposed inquiry was to determine the effect
the dismissal had upon [the witness’s] testimony as a witness for the state.” Id.
The Washington Court of Appeals reversed Wills’s conviction, concluding:
The defendant was entitled to cross-examine [the witness]
regarding the circumstances of the dismissal of the charges
against him so that the jury could consider and weigh this
testimony in its proper perspective. The scope and extent of that
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cross-examination was within the discretion of the trial court but
its refusal to allow any cross-examination into that area
constitutes reversible error.
Id. at 713.
[31] We conclude these cases are inapplicable. Tibbs seems to rely on Steele and
Wills for the narrow proposition that he had a right to admit into evidence the
fact that the third-party perpetrator he put forth was previously indicted for
Rison’s murder. We, however, read these cases as discussing the constitutional
rights to confront and cross-examine witnesses. See Chambers v. Mississippi, 410
U.S. 284, 93 S. Ct. 1038 (1973). “[T]he main and essential purpose of
confrontation is to secure for the opponent the opportunity of cross-
examination . . . we have recognized that the exposure of a witness’ motivation
in testifying is a proper and important function of the constitutionally protected
right of cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106
S. Ct. 1431, 1435 (1986) (citations omitted) (quotations omitted) (emphases
omitted).
[32] Unlike the witnesses in Steele and Wills, who testified against the appellants,
McCarty did not testify against Tibbs. In Steele and Wills, the appellants sought
to reveal biases that could have motivated the witnesses to give damaging
testimony against them. Tibbs, in contrast, called McCarty as a defense witness
in order to advance his theory of the case. McCarty’s testimony was not
damaging to Tibbs, and Tibbs’s reliance on Steele and Wills is misplaced.
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[33] Neither party directs us to any Indiana cases related to this argument. In
Standifer v. State, 718 N.E.2d 1107 (Ind. 1999), our supreme court noted that
“the constitutionally improper denial of a defendant’s opportunity to impeach a
witness for bias, like other Confrontation Clause errors, is subject to [the]
Chapman [v. California, 386 U.S 18, 87 S. Ct. 824 (1967)] harmless-error
analysis.” Standifer, 718 N.E.2d at 1110 (citing Van Arsdall, 475 U.S. at 684,
106 S. Ct. at 1438).
Whether the trial court’s error is harmless depends on several
factors including the importance of the witness’[s] testimony in
the prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case.
Standifer, 718 N.E.2d at 1111.
[34] 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. See
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Standifer, 718 N.E.2d at 1110. Thus, the trial court did not abuse its discretion
by excluding from evidence the fact of McCarty’s prior indictment for Rison’s
murder.
II. Exclusion of Impeachment Evidence
[35] 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 of the investigation. Tibbs concedes he did not submit his
proposed evidence in an offer of proof1 and that we must review his claim for
fundamental error.
[36] Although we generally review rulings on the exclusion of evidence for an abuse
of discretion, Pitts, 904 N.E.2d at 318, “[f]ailure to make an offer of proof of the
omitted evidence renders any claimed error unavailable on appeal unless it rises
to the level of fundamental error.” Young v. State, 746 N.E.2d 920, 924 (Ind.
2001). In order to successfully claim an error was fundamental, the appellant
“must show that the error was a substantial and blatant violation of basic
principles which rendered the result of the trial unfair.” Id. (citation omitted).
[37] We first note that the record is confusing, at best, with regard to Tibbs’s attempt
to introduce the transcript of Freeman’s interview and the reason he wanted to
1
Tibbs did append the transcript to his sentencing memorandum, and it is thus part of the record on appeal
and available for our review.
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do so. The State correctly notes that Tibbs did not explain why he introduced
the transcript, and, instead, that the trial court suggested that he could have
used it to impeach Freeman himself. See Appellee’s Br. p. 31, n.2 (citing Tr. pp.
1090-91).
[38] 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.”
Appellant’s Br. p. 27. 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. The following is the testimony preceding Tibbs’s attempt to
introduce the transcript:
Q. Is it fair to characterize you as the lead detective with
respect to the death and disappearance of Rayna Rison?
A. Yes.
Q. And, on occasion, did you have the opportunity to
conduct a recorded interview with Eric Freeman on June 27,
2013?
A. Yes.
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Q. Was that interview transcribed?
A. Yes.
Q. And it was also recorded audibly?
A. Yes.
Q. Have you had an opportunity to review the transcription
and the recordings?
A. Yes.
Q. Were they accurate?
A. Yes.
[Defense counsel identifies the exhibit and the State objects to its
admission.]
Tr. pp. 1089-90. After the trial court sustained the State’s objection to the
exhibit, Tibbs asked Detective Airy, “And you also had interviewed him before
in March of 2008?” and then questioned him, generally, regarding his
experience as a law enforcement officer. Id. at 1092. 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.
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[39] In his Appellant’s Brief, Tibbs highlights several instances in the interview
during which he contends the detectives “lead [Freeman] through his
statement.” Id. at 28. 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. Tr. p. 102. 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 the transcript of the 2013 interview as impeachment evidence when
he cross-examined Freeman.
[40] 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
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 20 of 38
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.
III. Motion to Correct Error
A. Procedural Issues/Standard of Review
[41] Tibbs next argues that the trial court erred when it denied his Trial Rule 60(B)
motion for relief from judgment. After this court gained jurisdiction of this
case, Tibbs filed a motion asking this court to remand his case to the trial court
so he could file a Trial Rule 60(B) motion. This court granted his request.
Pursuant to Logal v. Cruse, an appellant must follow a specific procedure when
he or she requests permission to return to the trial court to file a Trial Rule
60(B) motion, and this court must undertake a specific analysis when it
considers that request. 267 Ind. 83, 368 N.E.2d 235 (1977), cert. denied.
In short a party seeking to file a Rule 60(B) motion must file a
verified petition with the appellate court seeking leave to file the
motion. If the appellate court determines that the motion has
sufficient merit, it will remand the entire case to the trial court for
plenary consideration of the Rule 60(B) grounds.
Whatley v. State, 937 N.E.2d 1238, 1242 (Ind. Ct. App. 2012).
Two considerations underlie our decision in Logal. One is the
unfairness of requiring a litigant to elect either an appeal or
motion for relief as remedy for an improper judgment against
him. The other is the economy of judicial resources which can
be effected by the avoidance of considering appeals made
unnecessary by the granting of Rule 60 relief.
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 21 of 38
Davis v. State, 267 Ind. 152, 156 368 N.E.2d 1149, 1151 (1977).
[42] In Davis, our supreme court concluded that, in some cases, “the interests of
fairness and judicial economy militate in favor of applying the Logal procedure
to post-conviction relief petitions made pending appeal.” Davis, 267 Ind. at
156-57, 368 N.E.2d at 1151. The court held:
where an appellant from a criminal conviction seeks to bring a
petition for post-conviction relief pending resolution of his
appeal, he may obtain leave from the appellate court under the
procedure outlined in Logal when the appellate court can find:
(1) that the grounds for relief advanced in appellant’s petition
have a substantial likelihood of securing appellant relief in the
trial court;
(2) that such relief has a substantial likelihood of rendering moot
the issues raised on direct appeal and would effect a net savings
of judicial time and effort;
(3) that the circumstances of the case are such that undue
hardship would result to appellant were he required to await
completion of his appeal to petition for post-conviction relief.
Id. at 157, 368 N.E.2d at 157. Davis acknowledged its criteria may be “more
stringent than those imposed on civil litigants in Logal,” and explained, “they
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 22 of 38
are imposed because of the differences between Rule 60(B) and Post-Conviction
Rule 1.”2 Id.
In addition to imposing different criteria, we review appeals from Trial Rule
60(B) motions and petitions for post-conviction relief under different standards.
“The standard of review for the granting or denying of a T.R. 60(B) motion is
limited to whether the trial court abused its discretion.” Anderson v. Wayne Post
64, American Legion Corp., 4 N.E.3d 1200, 1205 (Ind. Ct. App. 2014), trans.
denied.
A petitioner who appeals the denial of PCR faces a rigorous
standard of review, as the reviewing court may consider only the
evidence and the reasonable inferences supporting the judgment
of the post-conviction court. The appellate court must accept the
post-conviction court's findings of fact and may reverse only if
the findings are clearly erroneous. If a PCR petitioner was denied
relief, he or she must show that the evidence as a whole leads
unerringly and unmistakably to an opposite conclusion than that
reached by the post-conviction court.
2
Notably, Post-Conviction Rule 1(a) provides, in part:
(a) Any person who has been convicted of, or sentenced for, a crime by a court of this
state, and who claims:
*****
(4) that there exists evidence of material facts, not previously presented and heard, that
requires vacation of the conviction or sentence in the interest of justice;
*****
May institute at any time a proceeding under this Rule to secure relief.
(b) . . . Except as otherwise provided in this Rule, it comprehends and takes the place of all
other common law, statutory, or other remedies heretofore available for challenging the
validity of the conviction or sentence and it shall be used exclusively in place of them.
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 23 of 38
Massey v. State, 955 N.E.2d 247, 253 (Ind. Ct. App. 2011) (citation omitted).
[43] It is uncommon for an appellant in a criminal appeal to request permission to
file a Trial Rule 60(B) motion after jurisdiction has transferred to this court.
Most, it seems, request permission to file a petition for post-conviction relief
pursuant to Davis and Hatton v. State, 626 N.E.2d 442 (Ind. 1993). We note that
our supreme court has stated that a Trial Rule 60(B) motion “is a remedy to be
used in civil actions . . . and that the proper procedure [in a criminal matter]
would have been for the appellant to proceed under the post-conviction relief
rules.” Lottie v. State, 273 Ind. 529, 538, 406 N.E.2d 632, 639 (Ind. 1980),
overruled on other grounds by Ludy v. State, 784 N.E.2d 459 (Ind. 2003). Citing to
Davis, the Lottie court further stated, “This Court has provided for procedures
such as this under Ind. R. P.C. 1.” Lottie, 273 Ind. at 539, 406 N.E.2d at 639
(citing Davis). We also note that in McVey v. State, 863 N.E.2d 434 (Ind. Ct.
App. 2007), trans. denied, this court addressed the appellant’s contention that the
trial court abused its discretion by denying his Trial Rule 60(B) motion without
a discussion of Logal, Davis, and/or Lottie. See also Smith v. State, 38 N.E.3d 218
(Ind. Ct. App. 2015).
[44] The State does not take issue with the procedure Tibbs followed here.
Regardless of which procedure Tibbs should have employed, we follow the lead
of our supreme court in Lottie: “The procedure would have been much the
same under either [Trial Rule 60(B) or the post-conviction rules], and since the
same question would have been presented to the trial court and to this Court in
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the way in which it is presented here now, we will decide this issue.” Lottie, 273
Ind. at 539, 406 N.E.2d at 639.
[45] The parties disagree regarding our standard of review given the procedure Tibbs
chose to follow. Tibbs states he was “unable to find a standard of proof directly
applicable to a Trial Rule 60(B) motion,” (presumably in a criminal case) and
argues, “since the issues raised [in his Trial Rule 60(B) motion] are commonly
found in Petitions for Post-Conviction Relief, TIBBS contends that the
preponderance of the evidence standard used i[n] PCR is applicable to his Rule
60(B) Motion.” Appellant’s Br. p. 30, n. 1. The State contends we should
review the trial court’s order for an abuse of discretion. See Appellee’s Br. p. 32-
33.
[46] Because the trial court entered findings of fact and conclusions thereon, we will
employ a two-tiered standard of review. Stronger v. Sorrell, 776 N.E2d 353, 358
(Ind. 2002). First, we determine whether the evidence supports the findings and
then whether the findings support the judgment. Id. We will only set aside the
trial court’s findings and conclusions if they are clearly erroneous. Id. We may
not reweigh the evidence or reassess the credibility of the witnesses. Id.
Instead, “we must accept the ultimate facts as stated by the trial court if there is
evidence to sustain them.” Id. This “clearly erroneous” standard is similar to
that used when we review the denial of a PCR petition. See State v. Hollin, 970
N.E.2d 147, 150 (Ind. 2012). Even if we were to review the trial court’s order
simply for an abuse of discretion, we would reach the same result.
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 25 of 38
B. Newly Discovered Evidence/Brady Violation
[47] Tibbs contends Rickey and the State entered into an agreement under which
Rickey would receive a benefit for his testimony against Tibbs and,
alternatively, that the State offered Rickey a benefit in exchange for his
testimony.3 He argues that the evidence of the offer and agreement is newly-
discovered evidence, the revelation of which entitles him to a new trial. He
further contends the State failed to disclose the evidence in violation of Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
[N]ew evidence will mandate a new trial only when the
defendant demonstrates that: (1) the evidence has been
discovered since the trial; (2) it is material and relevant; (3) it is
not cumulative; (4) it is not merely impeaching; (5) it is not
privileged or incompetent; (6) due diligence was used to discover
it in time for trial; (7) the evidence is worthy of credit; (8) it can
be produced upon a retrial of the case; and (9) it will probably
produce a different result at retrial.
Kubsch v. State, 934 N.E.2d 1138, 1145 (Ind. 2010) (citing Taylor v. State, 840
N.E.2d 324, 329-30 (Ind. 2006)) (alteration in original), cert. denied.
[48] “[T]he suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
3
We note that Tibbs initially seems to raise separate contentions that 1) the State committed a Brady
violation by not disclosing evidence of an agreement between Rickey and the State and 2) he had newly-
discovered evidence that the State offered Rickey a benefit in exchange for his testimony against Tibbs. As
he develops his argument, however, Tibbs refers to the alleged agreement and offer interchangeably. In order
to ensure we thoroughly address the arguments he raises, we will assess whether evidence of either the
alleged offer or the alleged agreement were newly discovered or withheld in violation of Brady.
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 26 of 38
punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97. “To prevail on a Brady claim, a
defendant must establish: (1) that the prosecution suppressed evidence; (2) that
the evidence was favorable to the defense; and (3) that the evidence was
material to an issue at trial.” Bunch v. State, 964 N.E.2d 274, 297 (Ind. Ct. App.
2012) (quoting Minnick v. State, 698 N.E.2d 745, 755 (Ind. 1998) (in turn citing
Brady, 373 U.S. at 87, 83 S. Ct. at 1194), cert. denied), trans. denied. “Evidence is
material under Brady ‘only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different. A “reasonable probability” is a probability sufficient to
undermine confidence in the outcome.’” Bunch, 964 N.E.2d at 297
(quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383
(1985)). “‘Favorable evidence’ includes both exculpatory evidence and
impeachment evidence.” Bunch, 964 N.E. 2d at 297-98.
[49] Tibbs alleges the State and Rickey entered into an agreement and that the State
offered Rickey a benefit—“a time cut up to half of his sentence”—in exchange
for his testimony against Tibbs. Appellant’s Br. p. 32. The trial court found:
4. On March 10, 2008, Detectives Al Williamson and Mark
Lochmond met with Rickey Hammons at the Wabash Valley
Correctional Facility . . . Most, but not all, of this interview was
recorded by the law enforcement officers.
5. According to Detective Williamson, the portion of the
interview which was not recorded was not recorded at Rickey
Hammons’[s] request. Whatever the fact of the matter may be, it
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 27 of 38
was during this unrecorded portion of the interview that a
discussion was held about what, if any, consideration Rickey
Hammons was seeking in return for the information he was
providing. According to Hammons’[s] testimony at a clemency
hearing in 2015 and again before this court, the detectives
brought up the subject of a sentence reduction but Hammons told
the detectives that he was not asking for anything in return for
the information he was providing or any testimony he might give
in the future. According to Detective Williamson, Hammons
told the detectives that he did not want anything in return for the
information he was providing or for any testimony he might give
in the future, but for reasons which are unclear to this court
Hammons did not want that statement to be part of the recorded
interview. Detective Williamson testified at the hearings that he
did not have the authority to make any offer to Hammons, that
no offers or promises were made during the interview, and that
the discussion as to any possible benefit to Rickey Hammons
went no further that day or at any time thereafter.
*****
12. Prior to the filing of the charges against Jason Tibbs,
Rickey Hammons hired a private attorney in 2013 to represent
him in efforts to obtain a sentence modification in his own case.
Hammons had previously filed a pro se petition for modification
of sentence in 2010. That petition was summarily denied.
According to the testimony of Hammons and the attorney he
hired, this new petition for sentence modification was to be based
on Hammons’[s] accomplishments and progress in the Indiana
Department of Correction. Both testified that it had nothing to
do with any cooperation Hammons was giving in the Tibbs case.
The new petition for modification of sentence was not filed until
after the Tibbs trial.
13. Prior to the trial of the defendant, Rickey Hammons gave
a deposition which was attended by Deputy Prosecuting
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Attorney Christopher Fronk, the prosecuting attorney who tried
the defendant’s case to the jury. During that deposition, Ricky
Hammons denied that he had been promised or received any
consideration in return for the information he provided to the law
enforcement officers or for his agreement to testify at the Tibbs
trial.
14. Prior to the trial of the defendant, Rickey Hammons also
filed a petition for clemency with the Indiana Parole Board. That
petition made no mention of Hammons’[s] cooperation in the
Tibbs matter.
15. As is standard procedure, the petition for clemency was
presented by the Indiana Parole Board to the trial court judge
and the prosecuting attorney for comment. The letters from
the Indiana Parole Board were sent out prior to the trial of
Jason Tibbs. The trial court judge responded by stating that he
had no knowledge of the case as it had been heard by a
different judge but that he found the timing of the petition
curious in light of the fact that Rickey Hammons was
scheduled to testify during the next month as a state’s witness
in the Tibbs trial. While it is not known for certain whether
the office of the prosecuting attorney ever received the letter
from the Indiana Parole Board regarding Rickey Hammons,
the record is clear that the prosecuting attorney never
responded favorably or unfavorably to the petition for
clemency.
*****
17. While Tibbs’[s] appeal was pending, Rickey Hammons
appeared before the Indiana Parole Board for his clemency
hearing in February, 2015. At that hearing, Rickey Hammons
stressed his progress while in the Indiana Department of
Correction. One of the members of the board, who had
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researched the matter further based on the trial court judge’s
comment that Rickey Hammons was scheduled to be a state’s
witness in another matter, asked Hammons about his
involvement in the Tibbs case. Hammons told the board that
the detectives who first interviewed him in 2008 had made an
offer of leniency to him, but that he had refused it because he
did not want anything in return for his cooperation or
testimony.
18. On August 7, 2015, Rickey Hammons by counsel filed
a petition for modification of sentence with a request for
hearing. The petition and the request were summarily denied
by the trial court.
19. On September 1, 2015, Hammons’[s] attorney filed a
motion to reconsider the denial of the petition for
modification of sentence. This motion was joined by the
deputy prosecuting attorney assigned to handle such petitions
after communications passed between counsel, the deputy
prosecuting attorney who prosecuted Tibbs, and the deputy
prosecuting attorney handling the petition for modification of
sentence.
20. Deputy Prosecuting Attorney Christopher Fronk
testified to this court [during the post-trial evidentiary hearings
on Tibbs’s Trial Rule 60(B) motion] that, although no
promises or hopes of promises had been given to Rickey
Hammons, the deputy prosecuting attorney believed that the
sacrifice Hammons had made in cooperating with the state
deserved consideration.
*****
25. A hearing was held on November 30, 2015, before the
senior judge at which Rickey Hammons testified. Following the
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hearing, the senior judge issued a sua sponte order to the Indiana
Parole Board to disclose to the state and the defendant any
information they might have regarding “any petition for
clemency or parole that may have been filed by or on behalf of
Rickey Hammons . . .” Such information did exist and was
immediately provided by the Indiana Parole Board to the
parties.
*****
27. A second hearing was held before the senior judge on
December 7, 2015. Testimony was again received from Rickey
Hammons and others regarding any possible agreement
between the state and Rickey Hammons in return for his
cooperation with law enforcement officers and his testimony
at the Tibbs trial.
*****
30. Based on the evidence presented at the hearings on the
motion to vacate judgment and amended motion to vacate
judgment, the court finds that no formal or informal promises
were made by the state or its agents to Rickey Hammons in
return for his cooperation with law enforcement or his
testimony at the trial of the defendant.
31. Although witness Rickey Hammons has consistently
stated and testified that he did not come forward with his
evidence regarding Jason Tibbs in return for any agreement or
promise of leniency, even if the court were to assume that he
harbored a hope of special consideration after the fact, such
hopes do not rise to the level of a constitutional disclosure
violation even if there was a discussion of such a possibility
during Hammons’[s] initial interview with the detectives. The
uncontroverted evidence before the court is that there was no
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 31 of 38
agreement and Hammons made it clear from the beginning
that he was not asking for or accepting any agreement. The
evidence regarding the discussions between Hammons and
the detectives at the initial interview additionally does not
appear to rise to even the level of impeachment evidence that
would qualify as favorable evidence which should have been
disclosed by the state to the defense prior to trial.
32. Even if the evidence is considered to have been
favorable evidence which was not disclosed by the state, the
court concludes that the evidence was not material to an issue
at trial. Hammons[‘s] testimony corroborated Freeman’s
testimony on a very important point and cannot be considered
insignificant. But when Freeman’s eyewitness testimony of
the events before, during, and after the killing are taken in
concert with all of the other witness testimony which also
corroborated some parts of Freeman’s testimony, the court
concludes that there is not a reasonable probability that the
evidence of the discussions between Hammons and the
detectives would have made a difference to the result of the
defendant’s trial. When taken in context, the evidence of the
discussions is not sufficient to undermine confidence in the
outcome of Tibbs’[s] trial.
App. pp. 811-22. The trial court concluded the State did not commit a
Brady violation. Id. at 822.
[50] The trial court also concluded:
34. Regarding the defendant’s separate claim that newly
discovered evidence requires a new trial, the court finds and
concludes as follows:
a. The evidence has been discovered since trial.
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b. The evidence is relevant but not material.
c. The evidence is not cumulative to the extent that
it could establish in the minds of some jurors that the
detectives made an offer to Rickey Hammons which he
refused.
d. The evidence is merely impeaching.
e. The evidence is not privileged or incompetent.
f. Due diligence was used to discover the evidence
prior to trial to the extent that evidence of
Hammons’[s] testimony before the Indiana Parole
Board could not have been discovered before trial.
g. The evidence is worthy of credit to the extent that
there were discussion between Hammons and the
detectives at their initial interview about possible
leniency.
h. The evidence can be produced at a new trial.
i. The evidence will not probably produce a
different result at a new trial.
Id. at 822-23. The trial court concluded Tibbs did not establish the existence
of newly-discovered evidence. Id. at 822.
[51] Tibbs does not challenge any of the trial court’s findings of fact. Instead, he
argues generally that the alleged newly-discovered evidence and Brady
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 33 of 38
violation entitle him to a new trial. Specifically, Tibbs contends the
evidence was “beneficial” to his defense, would have “helped the jury better
assess the reliability and honesty of the felon-witness Hammons,” and was
material because there is a reasonable probability that, if it had been
disclosed, the outcome would have been different. Appellant’s Br. pp. 33-
34. He contends the evidence is relevant “to the jury weighing
Hammons’[s] credibility which clearly sheds light on the guilt or innocence
of Mr. Tibbs.” Id. at 35-36.
[52] Because Tibbs does not cogently argue that the trial court’s findings were not
supported by sufficient evidence, he has waived that argument on review. See
City of Whiting v. City of East Chicago, 359 N.E.2d 536, 540, 266 Ind. 12, 19
(1977). “[W]here a party challenges only the judgment as contrary to law and
does not challenge the special findings as unsupported by the evidence, we do
not look to the evidence but only to the findings to determine whether they
support the judgment.” Smith v. Miller Builders, Inc., 741 N.E.2d 731, 734 (Ind.
Ct. App. 2000) (alteration in original). Although Tibbs does not challenge the
trial court’s findings of fact, he maintains that there existed an offer of leniency
from the State and agreement between Rickey and the State, and he bases his
arguments on appeal on those assertions. Because those erroneous assumptions
are central to his arguments, we find it necessary to, briefly, consider whether
the evidence supports the trial court’s findings that no such offer or agreement
existed. We conclude it does.
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 34 of 38
[53] Our review of the evidentiary hearings on Tibbs’s Trial Rule 60(B) motion
reveals that Rickey; deputy prosecuting attorney Fronk, who prosecuted Tibbs;
David Jones, who represented Rickey in his second request for a sentence
modification; deputy prosecuting attorney John Lake, who represented the
State when Rickey petitioned for a sentence modification; Detective
Williamson; and Detective Airy all testified there was no agreement between
Rickey and the State. Deputy prosecuting attorney Fronk and Detectives
Williamson and Airy all testified no offer was extended to Rickey, and
Detective Williamson testified he did not have the authority to make Rickey an
offer. Although Rickey testified the officers who interviewed him in 2008
mentioned a benefit—“they were like, you know, obviously you want
something or you’re aware that you can get something or whatnot. That was
pretty much the scope of what they talked about and offered”—he explained
that the conversation was not a “formal” offer: “it was vaguely discussed, you
know, guys get deals all the time for this, you know, do you know that that’s an
option, you can ask.” Dec. 7, 2015 tr. pp. 28, 34. Rickey consistently testified
that, not only was there no agreement between himself and the State, he did not
want to receive any benefit in exchange for his testimony against Tibbs. Rickey
also testified he was sentenced to forty-five years—the minimum sentence—for
the murder he committed. Finally, and notably, Rickey’s second request for a
sentence modification, which the State joined and attached to which was a
letter of support from deputy prosecuting attorney Fronk, was denied.
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[54] In short, Rickey did not receive a benefit in exchange for his testimony against
Tibbs. We therefore conclude the evidence clearly supports the trial court’s
finding that no agreement existed between the State and Rickey. We further
conclude that the evidence supports the trial court’s characterization of Rickey’s
2008 conversation with Detective Williamson as “a discussion . . . about what,
if any, consideration Rickey Hammons was seeking in return for the
information he was providing” and note that the trial court did not find that the
State made an offer to Rickey. App. p. 811.
[55] In support of his argument that “an agreement clearly existed,” Appellant’s Br.
p. 32, Tibbs highlights the evidence most favorable to his position. Relying on
Rickey’s vague testimony regarding the possibility of a time cut, Tibbs also
asserts, in contradiction to the trial court’s findings, that the State made Rickey
an offer. Our standard of review does not permit us to reweigh the evidence or
substitute our judgment for that of the trial court. Weaver v. Niederkorn, 9
N.E.3d 220, 222 (Ind. Ct. App. 2014).
[56] Because there was no offer or agreement between the State and Rickey, we
also conclude Tibbs “fails to meet the materiality requirement, thereby
defeating both the initial claim of newly discovered evidence and the claim of
a Brady violation.” Kubsch, 934 N.E.2d at 1145. In order to prove the evidence
of an offer or agreement was material under either theory Tibbs advances, such
an offer or agreement must have actually existed. The trial court found no
agreement existed and stopped short of finding the State made Rickey an offer.
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 36 of 38
Because there was no agreement or offer, there simply was no material evidence
that could have changed the outcome of Tibbs’s trial.
[57] Even if the jury had the benefit of hearing Rickey’s crude characterization
of his 2008 discussion with the detectives as an “offer,” (which Detectives
Williamson and Airy deny was an offer of any sort) it also would have
heard Rickey’s explanation of the context of that conversation—“it was
vaguely discussed, you know, guys get deals all the time for this, you know, do
you know that that’s an option, you can ask.” Dec. 7, 2015 tr. p. 34. We
agree with the trial court that there is not a reasonable probability that that
evidence related to the alleged agreement or offer, when taken in context
with all the other evidence, would have changed the result of Tibbs’s trial.
[58] We are not unmindful of the fact that Rickey’s assistance was likely the linchpin
of the investigation into Rison’s death. Rickey told investigators about
Freeman, and Freeman’s testimony was quite clearly a crucial part, if not the
most crucial part, of the State’s case. And we are aware that the timing of
Rickey’s petition for clemency and second request for a sentence modification is
curious. But the trial court’s findings clearly establish that there was not, in
fact, an agreement between Rickey and the State. Further, the trial court found
that Rickey was already serving a minimum sentence, and the State was not
able to intervene to change Rickey’s placement in the Department of
Correction.
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[59] In light of the foregoing, we conclude the trial court properly denied Tibbs’s
Trial Rule 60(B) motion.
Conclusion
[60] The trial court did not abuse its discretion by excluding the third-party
perpetrator evidence Tibbs sought to introduce, nor was it fundamental error to
exclude evidence Tibbs wanted to use to either impeach the investigation into
Rison’s murder or Freeman’s testimony. The trial court properly denied
Tibbs’s Trial Rule 60(B) motion for relief from judgment. We affirm.
[61] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016 Page 38 of 38
Jason Tibbs v. State of Indiana
Combined Opinion