Bivins v. State

Attorneys for Appellant

Lorinda Meier Youngcourt
Special Assistant to the Public Defender of Indiana
Evans & Youngcourt, P.C.
Indianapolis, IN

Janet S. Dowling
Special Assistant to the Public Defender of Indiana
Albuquerque, NM

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Andrew L. Hedges
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

GERALD W. BIVINS,
Appellant (Petitioner below),

v.

STATE OF INDIANA,
Appellee (Respondent below).

)
) Supreme Court No.
) 06S00-9602-PD-173
)
)
)
)
)
)

APPEAL FROM THE BOONE SUPERIOR COURT

The Honorable James C. Detamore, Special Judge
Cause No. 06D01-9104-CF-24

ON DIRECT APPEAL FROM THE DENIAL OF POST-CONVICTION RELIEF

September 26, 2000

SULLIVAN, Justice.

Gerald W. Bivins seeks post-conviction relief from his convictions for
murder and sentence of death arguing, inter alia, that his trial counsel
did not adequately investigate and present evidence in mitigation of a
death sentence. We affirm the post-conviction court’s decision to deny
post-conviction relief, including its determination that trial counsel did
not render deficient performance in investigating and presenting evidence
of mitigating circumstances.

Discussion

Gerald W. Bivins was convicted of murder, robbery, confinement, auto
theft, and theft in connection with the killing of Reverand William
Radcliffe and sentenced to death. We earlier affirmed Bivins’s direct
appeal of these convictions and sentence. See Bivins v. State, 642 N.E.2d
928 (Ind. 1994), cert. denied, 516 U.S. 1077 (1996). As permitted by
Indiana Post-Conviction Rule 1, Bivins sought collateral review by filing a
petition for post-conviction relief. This petition was heard in the Boone
Superior Court and post-conviction relief was denied. Bivins now appeals
the denial of post-conviction relief to this court. In this opinion, we
will refer to the court in which Bivins was originally tried and convicted
as the “trial court” and the court in which the petition for post-
conviction relief was heard and denied as the “post-conviction court.”[1]

Applicable law dictates that we review Bivins’s appeal according to
certain established standards.

First, Indiana Post-Conviction Rule 1(6) requires a post-conviction
court to make findings of fact and conclusions of law. When a court makes
special findings of fact and conclusions of law, the findings must be
supported by the evidence and the conclusions supported by the findings.
See Estate of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind. 1994),
reh’g denied.

Second, because Bivins had the burden of establishing his grounds for
relief at the post-conviction hearing, Indiana Post-Conviction Rule 1(5),
he is now appealing from a negative judgment. And because he is appealing
from a negative judgment, we require him to demonstrate that the evidence
as a whole was such that it leads unerringly and unmistakably to a decision
opposite that reached by the post-conviction court. See Spranger v. State,
650 N.E.2d 1117, 1119-20 (Ind. 1995), reh’g denied. “‘[I]t is only where
the evidence is without conflict and leads to but one conclusion, and the
trial court has reached the opposite conclusion, that’” its findings or
conclusions will be disturbed as being contrary to law. Spranger, 650
N.E.2d at 1120 (quoting Fleenor v. State, 622 N.E.2d 140, 142 (Ind. 1993),
cert. denied, 513 U.S. 999 (1994)).

Third, several of Bivins’s claims for post-conviction relief are
grounded in his contention that he did not receive the minimum level of
effective assistance from his trial counsel that the Constitution requires.
We analyze such claims according to the two-part test announced in
Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., Lowery v. State,
640 N.E.2d 1031, 1041 (Ind. 1994), cert. denied, 516 U.S. 992 (1995). We
require the defendant or petitioner to show that, in light of all the
circumstances, the identified acts or omissions of counsel were outside the
wide range of professionally competent assistance. Id. This showing is
made by demonstrating that counsel’s performance was unreasonable under
prevailing professional norms. Id. (citing Turner v. State, 580 N.E.2d
665, 668 (Ind. 1991), reh’g denied). And we require the defendant or
petitioner to show adverse prejudice as a result of the deficient
performance. This showing is made by demonstrating that counsel’s
performance was so prejudicial that it deprived the petitioner of a fair
trial. Williams v. Taylor, 120 S. Ct. 1495, 1511 (2000) (quoting
Strickland, 466 U.S. at 687); Lowery, 640 N.E.2d at 1041. To establish
prejudice, the defendant or petitioner “‘must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine the confidence in the
outcome.’” Williams, 120 S. Ct. at 1511-12 (quoting Strickland, 466 U.S.
at 694).

I

Bivins contends that he is entitled to post-conviction relief because
his trial counsel failed “to investigate, understand, present, and argue”
evidence in mitigation of the death sentence. Br. of Appellant at 45.
Under the Indiana death penalty sentencing scheme, in order for a jury to
recommend and for a trial court to impose a sentence of death, each must
find that any circumstances that exist in mitigation of the death sentence
are outweighed by specified circumstances in aggravation. See Ind. Code §
35-50-2-9(e) (Supp. 1990).[2] Bivins argues that his trial counsel
conducted insufficient investigation as to the existence of mitigating
circumstances and provided him with ineffective representation during the
death penalty phase. In particular, Bivins contends that an adequate
investigation would have revealed that Bivins was a victim of a parental
neglect, of alcoholism, of Attention Deficit Hyperactivity Disorder (ADHD),
of a central auditory processing disorder, and a speech defect
(stuttering).

As required by Indiana Post-Conviction Rule 1(6), the post-conviction
court made specific findings of fact and conclusions of law. From its
findings, it concluded as a matter of law that trial counsel did
investigate and attempt to present mitigating evidence and that none of the
mitigating evidence presented to the post-conviction court would likely
have changed the sentencing decision of the jury or trial court.

A

Bivins’s counsel lodges several challenges against the post-conviction
court’s findings of fact as

not being supported by the evidence. See Estate of Reasor, 635 N.E.2d at
158 (ruling that when a court makes special findings of fact and
conclusions of law, the findings must be supported by the evidence).

As pointed out recently in State v. Holmes, 728 N.E.2d 164, 168-69
(Ind. 2000), reh’g denied, this Court will accept the post-conviction
court’s findings of fact so long as they are not “clearly erroneous.” See
also Ind. Trial Rule 52(A). We examine only the probative evidence and
reasonable inferences that support the post-conviction court’s
determination and we neither reweigh the evidence nor judge the credibility
of witnesses. Holmes, 728 N.E.2d at 169; Spranger, 650 N.E.2d at 1119.
“Clear error” is that “‘which leaves us with a definite and firm conviction
that a mistake has been made.’” State v. Van Cleave, 674 N.E.2d 1293, 1295-
96 (Ind. 1996) (quoting Spranger, 650 N.E.2d at 1119), reh’g granted in
part, 681 N.E.2d 181 (1997), cert. denied, 522 U.S. 1119 (1998). We begin
by examining each challenge to the post-conviction court’s findings of fact
to determine if the findings are clearly erroneous.

1. In the last sentence of finding of fact no. 46, the post-
conviction court found that Bivins’s relatives testified that his “parents
sometimes got along well with each other but argued at other times.”
Bivins argues that only one relative made that observation and several
relatives testified to a much more turbulent relationship. Bivins contends
that the post-conviction court’s finding minimizes the violent nature of
his parents’ relationship, completely ignores that Bivins was a witness to
this violence, and is not supported by the weight of the evidence.

Our review of the record indicates that Bivins presented testimony or
affidavits at the post-conviction hearing from thirteen eyewitnesses of his
childhood in Evansville, including his mother and brother. Four of those
childhood-era witnesses testified that Bivins’s parents did not get along
well and fought with each other. One of those witnesses also testified
that at other times, Bivins’s parents got along well. Another of those
witnesses testified that Bivins’s parents “ran around” on each other (R. at
1176-77, 1181) and that Bivins “had to see” the fights between his parents.
(R. at 1180.) The nine other witnesses (including Bivins’s mother and
brother) made no mention of violence between Bivins’s parents in their
testimony or affidavits.

The post-conviction court might have included a finding concerning
violence in Bivins’s childhood home. However, a large majority of the
childhood-era witnesses (including his mother and brother) made no mention
of it and there was no conclusive evidence of the extent of his awareness
of whatever violence was present. The evidence supports the findings made
by the post-conviction court.

2. Bivins argues that the post-conviction court’s statement in
finding of fact no. 46, that he was raised in “a lower-middle class
neighborhood,” is not supported by the record. Rather, he argues it was an
extremely poor and dangerous neighborhood. In making this finding, Bivins
contends that the post-conviction court focused on one sentence from one
witness and ignored all evidence to the contrary.

Our review of the record indicates that four of the thirteen childhood-
era witnesses, including Bivins’s brother, described the neighborhood in
which he grew up in the following ways: “Not the nicest neighborhood”; (R.
at 1083); “lower-middle class”; (R. at 1092); a “rough neighborhood” where
some of the adults were drug dealers, thieves and alcoholics; (id.); a
neighborhood where “kids that would get into trouble” lived; (R. at 1102);
“lower class”; (R. at 1103); a neighborhood “where you had to be able to
protect yourself”; (R. at 1141); not “the high class neighborhood”; (id.);
“pretty rough”; (id.); “[i]f you were out at night you needed somebody with
you”; (id.); “the poor side of town”; (R. at 1166).

While each of these characterizations suggests a somewhat less
attractive environment than the post-conviction court’s “lower-middle class
neighborhood,” reasonable inferences from this evidence support the
findings made by the post-conviction court. Each of the four witnesses’
characterizations were brief and quite subjective; none detailed the
reasons for his or her descriptions. None of the other childhood-era
witnesses commented on the quality of the neighborhood. No empirical
evidence of poverty, crime rates, or other socio-economic indicators was
presented. And there was evidence that Bivins had good friends in the
neighborhood while growing up, including at least one neighbor family with
whom he would start each school day and that tried to provide him with a
nurturing environment.

3. Bivins takes issue with the post-conviction court’s statement in
finding of fact no. 47 that, despite being raised in the same environment,
Bivins’s brother had “no convictions for robbery or murder.” (R. at 566.)
Bivins contends that while it is true that his brother “has never been
convicted of robbery or murder, the court’s finding is misleading because
it tells only half the story.” Br. of Appellant at 51. He maintains that
his brother’s life had indeed been troubled, including difficulties with
the law.

Bivins’s claim here is not that the trial court’s finding was wrong
but that it was incomplete. While the trial court was accurate in finding
that Bivins’s brother has “no convictions for robbery or murder,” that
finding is not particularly helpful in evaluating whether trial counsel was
ineffective in its mitigation presentation and we disregard it for that
purpose.

4. Bivins contends that the post-conviction court’s statement in
finding of fact no. 48 that his grandfather had an affectionate
relationship with him was also only partly true. Bivins argues that all
witnesses who testified about his grandfather described him to be a
dangerous alcoholic. We do not believe that the post-conviction court's
finding is at odds with Bivins’s argument on this point: “His grandfather
had a drinking problem and was described as a disciplinarian.” (R. at
566.)

5. Bivins contends that the post-conviction court’s statement in
finding of fact no. 49 that Lois Chevalier, the mother of a childhood
friend of Bivins, did not believe he was being mistreated at home ignored
the remainder of her testimony and that of other witnesses that Bivins’s
physical and emotional needs went unattended. Bivins’s principal point
here is that neglect of a child’s physical and emotional needs constitutes
mistreatment as much as physical abuse.

We read the post-conviction court’s finding to mean that Bivins’s was
not subjected to physical abuse at home. Bivins does not contend to the
contrary and reasonable inferences from the evidence support the post-
conviction court’s finding that no physical abuse occurred. The post-
conviction court did acknowledge that Bivins endured parental neglect.
The post-conviction court determined that Bivins’s father “was not an
affectionate man,” and “did not spend much time at family gatherings, and
spent much time out of town.” (R. at 565.) At the same time, we agree
that there was substantial evidence of probative value that many of
Bivins’s physical and emotional needs as a child were neglected. It would
have been appropriate for the post-conviction court to have made more
extensive findings on this point.

6. Bivins acknowledges the accuracy of the post-conviction court’s
statement in finding of fact no. 51 that his childhood was marked with
discipline problems. He contends that it ignores the evidence regarding
the cause of these problems – his need for acceptance and friendship,
especially in the face of constant ridicule and social isolation because of
his stuttering. However, the post-conviction court did recognize that
Bivins “had a stuttering problem which embarrassed him and lead others to
sometimes tease him.” (R. at 567.) While the post-conviction court did
not discuss the specific cause of the discipline problems, reasonable
inferences could be drawn from the evidence that the discipline problems
resulted from stuttering and the teasing from others.

7. Bivins takes issue with the post-conviction court’s finding of
fact no. 52 and the factual statement in conclusion of law no. 97 that his
stuttering was not severe. He summarizes the testimony of ten witnesses at
the post-conviction hearing which he contends demonstrates the severity of
his stuttering and the ridicule that it provoked. The State responds,
without citation to the record, as follows: “[I]t bears emphasis that most
of the evidence presented to the post-conviction court suggested that
Bivins’s stuttering problem was not severe.” Br. of Appellee at 17.

In fact, eight of the thirteen childhood witnesses testified that
Bivins had a stuttering problem. Almost all of those eight also testified
that Bivins had a speech articulation problem in addition to stuttering and
that he was mocked by family members and other children for these
difficulties. Three of these eight witnesses testified that they were able
to understand Bivins when he spoke though others were not. At the post-
conviction hearing, Bivins’s mother testified that although speech therapy
was of some help with articulation, it did not help his stuttering.
Bivins’s brother testified that the stuttering problem improved over time.
School records introduced by Bivins show that he received speech therapy
and made fair progress. The two expert witnesses who testified for Bivins
at the post-conviction hearing, Dr. Susan Arnold and Dr. Patricia Chunn,
stated that their investigations found that he suffered from stuttering and
speech problems as a child. Dr. Chunn testified that Bivins’s mother told
her that there were many times during his childhood that he stuttered so
badly he could not be understood, and that he was often teased. Dr. Chunn
also testified that Bivins’s speech teacher did not do well with him.

The post-conviction court’s findings on stuttering read as follows:
“He had a stuttering problem which embarrassed him and lead others to
sometimes tease him. However, school records from 1965-1972 showed that he
received speech therapy and made progress on the problem. Richard Bivins
also noticed that the stuttering problem improved over time.” (R. at 567.)
“The problem was not severe.” (R. at 596.) While the post-conviction
court might properly have said more about Bivins’s stuttering, we have
reviewed the evidence and find that it does support the findings made by
the post-conviction court.

8. Bivins also disputes the post-conviction court’s factual
statement in conclusion of law no. 97 that speech pathologist Patricia
Chunn’s opinions as to Bivins’s auditory processing deficit and speech
defect were based on research and information “not necessarily available”
at the time of trial. (R. at 596.) It appears to us that most of the
research and information concerning stuttering and speech disorders
generally upon which Dr. Chunn’s opinions were based were, contrary to the
post-conviction court’s finding, available at the time of trial. At the
same time, however, we believe the post-conviction court’s finding in this
regard is based on Dr. Chunn’s testimony that there had been new
developments in research in her field, that she had kept current on that
information, and that her opinion had been affected by her ongoing reading
and training.

9. Dr. Susan Arnold conducted an extensive neuropsychological
evaluation of Bivins and testified at the post-conviction hearing that he
suffers from attention deficit hyperactivity disorder (ADHD). Bivins
contests the post-conviction court’s statement in finding of fact no. 57
and factual statement in conclusion of law no. 97. He contends the post-
conviction court questioned her testimony both on grounds that it may have
been based on Bivins “lying and misrepresenting things” and based, in part,
on knowledge about ADHD that has developed since Bivins’s trial. Bivins
points to Dr. Arnold’s testimony that she protected against the possibility
of his intentionally skewing the results by giving a large number of tests,
insuring that Bivins would be unable to tell exactly what she was testing
for. He also emphasizes that her diagnosis of ADHD has extensive support
in the testimony of at least eight other witnesses. And he notes that ADHD
was discovered in 1937 and was clearly a well-known impulse control
disorder at the time of trial.

We do not quarrel with Bivins’s analysis on either of these points.
But we find nothing in the post-conviction court’s findings to indicate
that it concluded that Bivins successfully skewed Arnold’s test results.
Furthermore, although the post-conviction court could have reiterated the
testimony of other witnesses about Bivins’s disorder, the post-conviction
court adequately recognized that Dr. Arnold concluded that Bivins suffered
from ADHD and that the diagnosis of this disorder was not tainted by lying
on the part of Bivins. In reaching this conclusion, we read the post-
conviction court’s finding to mean that despite Bivins’s “history of lying
and misrepresenting things,” Dr. Arnold “nonetheless” decisively “concluded
that Bivins has ‘attention deficit hyperactivity disorder.’” As such, the
findings made by the post-conviction court are sufficiently supported by
the evidence.

10. Bivins takes issue with the post-conviction court’s finding of
fact no. 29 and the factual statement in conclusion of law no. 95 that
trial counsel Gross “recalled talking with family members by phone as part
of the preparation for the penalty phase” and that Gross believed Charles
Keenan, a private investigator, “talked to people in Evansville concerning
mitigation.” Bivins says that Gross’s itemized billing records show that
he only talked to Bivins’s brother and only during trial (not before it).
Bivins also characterizes Keenan’s post-conviction affidavit as standing
for the proposition that “Keenan believed he had no responsibility for
developing penalty phase evidence.” Br. of Appellant at 49. We find the
trial court accurately characterized Gross’s testimony and that Keenan’s
affidavit could easily be read to support Gross’s description of Keenan’s
work. Keenan said he was “not responsible for the investigative
responsibilities in the mitigation phase of the case, though [he] did
interview some family.” (R. at 1037.) Reasonable inferences from this
evidence support the findings made by the post-conviction court.

Because the post-conviction court’s findings are supported by the
evidence, they are not clearly erroneous, and therefore will not be set
aside.

B

Bivins also challenges the post-conviction court’s conclusions of law
in several discrete respects. Although the reviewing court accepts the
post-conviction court’s findings of fact unless “clearly erroneous,” it
does not grant deference to the post-conviction court’s conclusions of law.
Holmes, 728 N.E.2d at 169.

1. Bivins disputes the post-conviction court’s statement in
conclusion of law no. 95 that while there may be mitigating information in
Bivins’s school, health and service records, any mitigating effect is
offset by discussions of his past delinquency, criminal conduct, and
unsuccessful attempts to help him in the past and by the absence of any
diagnosis of substantial mental illness. Bivins responds that he was not
seeking to have those records introduced into evidence but only to provide
source material for a reasonable investigation into his mental and
emotional health. We have difficulty with the logic of this argument.
Bivins seems to contend that these records should have been consulted by
trial counsel but not used as evidence of mitigation (because of the
offsetting negative information they contend). If that is a claim, it is
hard to see how counsel could be found ineffective for failing to consult
records that Bivins acknowledges would have disadvantaged his mitigation
case. Of course, it might be that those records would have provided leads
to other mitigating circumstances but, in the absence of identifying any
such circumstances without offsetting negative evidence, no claim of
ineffective assistance of counsel is made out.

2. In its conclusion of law no. 86, the post-conviction court held
that any weight to be given the mitigating effect of ADHD in this case was
“negligible” because there was no causal connection between ADHD and
Bivins’s crime. (R. at 588-89.) The State reiterates this point in its
brief. But we agree with Bivins that a circumstance need have no
particular causal connection to the crime in order to be entitled to
mitigating effect under the Constitution or the Indiana death penalty
statute. See Lockett v. Ohio, 438 U.S. 586, 605 (1978) (holding that the
Constitution requires that the sentencer in a capital case must be able to
give independent mitigating weight to any aspects of the defendant’s
character and record which may call for a less severe penalty); Ind. Code §
35-50-2-9(c)(8) (1990) (The judge and jury in a capital case may consider,
in addition to seven itemized mitigating circumstances, “[a]ny other
[mitigating] circumstances appropriate for consideration.”). At the same
time, the extent to which there is a causal connection may well affect the
weight it is given.

3. Bivins argues that the post-conviction court conclusion of law
no. 100 is incorrect in holding that trial counsel was not ineffective for
tendering a jury instruction to the effect that jurors should look to their
“own background, experiences, beliefs and convictions as well as [their]
feelings concerning the death penalty in deciding whether or not to
recommend such a sentence in this case.”[3] Br. of Appellant at 61. First,
Bivins contends that this instruction conflicts with another jury
instruction that informs the jury that it could only consider the charged
aggravating circumstances. We find no inconsistency; one’s background,
experiences, beliefs, and convictions do not constitute aggravating
circumstances. Second, Bivins contends that because “death-qualified
jurors are, by definition, in favor of the death penalty and more than
willing to impose it,” an instruction advising jurors to look to their own
feelings concerning the death penalty was to Bivins’s detriment. Id. at
62. We reject the premise that jurors in capital cases are “more than
willing” to recommend a death sentence and agree with the post-conviction
court that this instruction could only have benefited Bivins.[4] As such,
counsel was not ineffective for tendering it.

C

We now turn to the post-conviction court’s conclusion that trial
counsel discharged their constitutional duty to investigate and present
mitigation. Bivins vigorously disputes the conclusion, pointing to the
failure to solicit health, education, and military records or to consult
with members of Bivins’s extended family. Br. of Appellant at 60-61. And
he argues that the additional personal, family, and social history
testimony that would have been available through other witnesses would have
clearly placed him in a more sympathetic light and should have been
presented and considered to the jury. Id.

Trial counsel’s efforts in this regard were described by the post-
conviction court as follows:

28. [Trial counsel] Gross considered the penalty phase
difficult. To him, Bivins seemed “well adjusted,” and nothing “jumped
out” as an explanation for the killing. Gross explained the strategy
to portray the crime as a random, unfortunate, isolated act and to
show that Bivins was not as bad as he was being portrayed. As it was
part of the defense strategy to have Bivins express remorse, counsel
believed that the jury needed to hear from him and view him as a human
being.

29. Counsel hired Charles Keenan, an investigator, who
investigated Bivins’[s] accomplices and, Gross believes, talked to
people in Evansville concerning mitigation. Keenan was paid for his
services. Gross recalled talking with family members by phone as part
of preparation for the penalty phase.

30. Richard Bivins, Bivins’[s] brother and a veteran honorably
discharged from the Air Force, testified about family history,
Bivins’[s] problem with “drinking and doing drugs” and Bivins’[s]
prior imprisonment. He also testified about how Bivins tried to
counsel a niece to do well in school and avoid drugs ([T.]R. at 3876-
81). Bivins’[s] mother, Marilyn G. Bivins, testified about his school
history, his drug and alcohol abuse and rebelliousness as a youth, and
the history of alcoholism in the family, including Bivins’[s]
alcoholic grandfather. She also testified about how much she loves
her son ([T.]R at 3884-91). Bivins’[s] wife, Patricia Bivins, also
testified ([T.]R. at 3894-3896). Thomas Ulrey, Bivins’[s] former
employer, testified that Bivins had the potential to succeed with
training as an industrial painter but that he dismissed Bivins for
poor attendance caused by his drinking problem ([T.]R. at 3897-3902).
Bivins testified on his own behalf and apologized, saying that he was
sorry for killing Mr. Radcliffe ([T.]R. at 3903).

(R. at 558-59.)

As suggested by the discussion in part I-A, there was extensive
testimony at the post-conviction hearing concerning Bivins’s personal,
family, and social history. This testimony included information on his
relationship with his mother, father, and grandfather; his relationship
with his brother, playmates, and neighbors; the neighborhood in which he
grew up; his academic, health, and military records; and his hyperactivity,
discipline problems, and stuttering. The post-conviction testimony also
included the reports of a psychologist and speech therapist who examined
Bivins at the request of post-conviction counsel.

After making findings of fact (many of which are discussed in part I-A
supra), the post-conviction court concluded in part:

95. Counsel was not ineffective at the penalty phase for
failing to investigate and present more evidence in mitigation.
Counsel competently presented the testimony of Bivins, his relatives
and former employer who collectively presented to the jury evidence
about Bivins’[s] personal and family history, the family’s history of
alcoholism, his own problem with alcohol and drugs, his rebelliousness
as a teenager and his potential to succeed with training as an
industrial painter. Counsel cannot be branded as ineffective for not
presenting more of the same type of personal, family and social
history through other witnesses. Though there may be portions of
Bivins’[s] school, health and service records that a defense attorney
might attempt to characterize as mitigation, any mitigating effect of
those portions is counteracted by the records highly unflattering
descriptions of delinquency, criminal conduct and unsuccessful
attempts to help him in the past, and the notable absence from those
records of any diagnosis of substantial mental illness.

96. Much of Bivins’[s] personal history detailed in the post-
conviction hearing relates to his childhood. The absence of such a
detailed depiction of his childhood at the trial does not constitute
ineffective assistance because neither the jury nor the judge are
required to find a defendant’s troubled childhood to be a mitigating
factor. Lowery v. State, 547 N.E.2d 1046, 1059 (Ind. 1989)[,cert.
denied., 498 U.S. 881(1990).] After all, Bivins was an adult when he
intentionally murdered Mr. Radcliffe.

97. Counsel did not perform incompetently by failing to
present Bivins’[s] history of stuttering as a mitigating factor. The
problem was not severe. In any event, jurors heard him testify and
heard recordings of his statement to police and could draw their own
conclusions about the extent of his stuttering problem. Neither the
jury nor the judge are required to find certain factors to be
mitigating factors simply because there is some evidence in the record
to support them. Bivins, 642 N.E.2d at 952. Stuttering does not
mitigate his intentional killing of Mr. Radcliffe while robbing him.
Speech pathologist Chunn’s opinion that Bivins suffers from a central
auditory processing disorder does not indicate ineffective assistance
either. Like the opinion of Dr. Arnold, Chunn’s opinion is admittedly
affected by ongoing research and information not necessarily available
in 1991-92. Further, she admitted she found Bivins to be very bright,
confessed knowing very little about Bivins’[s] crimes and had no
opinion concerning how his disorder would affect his crimes. This is
hardly the type of mitigation evidence that would support condemning
counsel as ineffective.

(R. at 595-96.) We have already reviewed in detail many of the principal
factual statements embodied in these three paragraphs and determined that
the findings were not clearly erroneous. See part I-A, supra. We now
analyze whether those findings support the post-conviction court’s
conclusion that trial counsel discharged their constitutional duty to
investigate and present mitigation.

Death sentences are frequently challenged on the basis that trial
counsel failed to investigate or present evidence of mitigating
circumstances. See Rondon v. State, 711 N.E.2d 506, 520-21 (Ind. 1999).
In a small number of cases, where the failure to investigate or present
mitigating circumstances was accompanied by a failure to present much of a
defense at the penalty phase at all, we have granted relief. Id. at 521;
Averhart v. State, 614 N.E.2d 924, 930 (Ind. 1993), reh’g denied; Burris v.
State, 558 N.E.2d 1067, 1074 (Ind. 1990), cert. denied, 516 U.S. 922
(1995); Smith v. State, 547 N.E.2d 817, 822 (Ind. 1989). But we have also
affirmed capital sentences in the face of claims that trial counsel
investigated or presented little in the way of mitigation where trial
counsel did pursue a penalty phase strategy of consequence, or where there
was little mitigating evidence available or what there was could have been
viewed negatively by the jury. See, e.g., Brown v. State, 698 N.E.2d 1132,
1140 (Ind. 1998), cert. denied, 526 U.S. 1056 (1999); Timberlake v. State,
690 N.E.2d 243, 261 (Ind. 1997), cert. denied, 525 U.S. 1073 (1999); Canaan
v. State, 683 N.E.2d 227, 234 (Ind. 1997), cert. denied, 524 U.S. 906
(1998). The United States Supreme Court and the Seventh Circuit have done
so as well. See, e.g., Darden v. Wainwright, 477 U.S. 168, 186 (1986);
Stewart v. Gramley, 74 F.3d 132, 135-37 (7th Cir.), cert. denied, 519 U.S.
838 (1996).

The more difficult claims to resolve are those where trial counsel put
on a mitigation case but the post-conviction investigation demonstrates
that there was more that could have been discovered and presented. That is
the nature of Bivin’s claim.

It was also the nature of the claim in Williams v. Taylor, 120 S. Ct.
1495 (2000), a Virginia capital case in which the United States Supreme
Court vacated Williams’s death sentence on grounds of ineffective
assistance of counsel. Williams was decided after this case was taken
under submission and neither the State nor Bivins have claimed Williams as
additional authority under Indiana Appellate Rule 8.4(B). We observe that
the claim on which Williams prevailed was essentially that which Bivins
makes here: that trial counsel’s deficient performance in investigating and
presenting mitigating circumstances caused prejudice within the meaning of
Strickland. Notwithstanding Williams, we find that Bivins is not entitled
to relief.

Bivins’s trial counsel had a reasonable penalty phase strategy and
executed it. That strategy was to portray Bivins’s “crime as a random,
unfortunate, isolated act” in an effort to “show that Bivins was not as bad
as he was being portrayed.” (R. at 558, 1661, 1794-95.) That strategy
included putting Bivins on the stand to testify to his remorse.

Williams’s counsel’s performance was quite different. To the extent
that counsel had any penalty phase strategy at all, it appears to have been
to focus on Williams’s voluntary confession. Williams, 120 S.Ct. at 1514.
But if that was the initial strategy, it had been abandoned by closing
argument which was instead “devoted to explaining that it was difficult to
find a reason why the jury should spare Williams’s life.” Id. at 1500.
Justice O’Connor described this speech as a “generic, unapologetic closing
argument, which provided the jury with no reasons to spare [Williams]’s
life.” Id. at 1525.

A second part of Bivins’s counsel’s penalty phase strategy was to
present the jury and the trial court with what we find to have been at
least the principal contours of Bivins’s background, character, and record.
See Roche v. State, 690 N.E.2d 1115, 1126 (Ind. 1997), reh’g denied. The
jury and trial court heard from Bivin’s brother about Bivins’s problem with
“drinking and doing drugs” and Bivins’s prior imprisonment. (T.R. at 3878,
3883.) They heard Bivins’s mother testify about his school history, his
drug and alcohol abuse and rebelliousness as a youth, and the history of
alcoholism in the family, including his alcoholic grandfather. (T.R. at
3885-88.) The post-conviction proceeding showed that there was more in the
way of mitigating circumstances that could have been discovered. But we
are hard pressed to fault counsel, given the overall pressures of a capital
trial timetable and the fact that counsel had a coherent penalty phase
strategy, for failing to delve deeper into Bivins’s background. See, e.g.,
Burger v. Kemp, 483 U.S. 776, 793-95 (1987) (holding that because counsel’s
strategy did not require a more thorough “investigation into [the
defendant’s] background in search of mitigating circumstances,” counsel’s
assistance was not ineffective).

While Williams’s counsel also offered some background evidence at his
sentencing hearing, that evidence consisted only of brief testimony from
Williams’s mother and two neighbors that Williams was as a “nice boy” and
not a violent person. (One of the neighbors had not been previously
interviewed by defense counsel, but was noticed by counsel in the audience
during the proceedings and asked to testify on the spot.) Counsel also
played a taped excerpt from a statement by a psychiatrist that “did little
more than relate Williams’[s] statement during an examination that in the
course of one of his earlier robberies, he had removed the bullets from a
gun so as not to injure anyone.” Williams, 120 S.Ct. at 1500.

In contrast to the Williams case, we concur with the post-conviction
court that by presenting the information that counsel did on Bivins’s
background, character, and record as part of a reasonable strategy to try
to persuade the jury and the court not to impose death, Bivin’s trial
counsel’s penalty phase performance was not below the range expected of
reasonable, professionally competent assistance of counsel.

Because Bivins’s post-conviction court found no deficient
performance, it did not address the prejudice prong of his claim. In
contrast, the Virginia court that heard Williams’s petition for post-
conviction relief found that if his trial counsel’s performance had
measured up to the constitutionally required standard, there was a
reasonable probability that the result would have been different. Id. at
1501. This was also the view of the federal district court judge who heard
Williams’s petition for habeas corpus, id. at 1502, and at least six
members of the U.S. Supreme Court, id. at 1516, 1525. Justice Stevens
identified the following evidence of “Williams’[s] nightmarish childhood”
that the jury would have learned about had counsel’s performance not been
deficient:

(1) Williams’s parents had been imprisoned for the criminal
neglect of Williams and his siblings.

(2) Williams had been severely and repeatedly beaten by his
father.

(3) Williams had been committed to the custody of the social
services bureau for two years during his parents’
incarceration (including one stint in an abusive foster
home).

(4) After Williams’s parents were released from prison, he was
returned to their custody.

(5) Williams was “borderline mentally retarded” and did not
advance beyond sixth grade in school.

Id. at 1514. Justice O’Connor cited the same factors in reaching the same
conclusion. Id. at 1524-25.

The mitigation evidence presented at Bivins’s post-conviction
proceeding was far more modest. Unlike Williams’s case, there was no
evidence of physical abuse, no evidence of criminal neglect, and no
evidence of mental retardation. As to educational attainment, the evidence
was that Bivins completed the tenth grade and passed the GED test. To be
sure, Bivins presented the post-conviction court with additional
information about his background to that presented in the penalty phase —
the strained relationship with his father, the hard-scrabble neighborhood,
and his speech impediment and ADHD. To the extent that counsel’s
performance was deficient for failing to investigate and present these
additional circumstances, we conclude that they added only detail and not
weight to the mitigating evidence presented at trial. And each of these
are such common circumstances that there is no reasonable probability that
their having been presented to the jury or the sentencing judge would have
changed their respective sentencing determinations.

As to Bivins’s argument that counsel’s performance was deficient for
failing to investigate school, health, and service records, we again
observe that Bivins himself acknowledges that these would not have been
used as evidence of mitigation because of the offsetting negative
information they contain. Cf. Williams, 120 S.Ct. at 1514-15.

The mitigation evidence presented to the post-conviction court does
not lead us to a conclusion contrary to that court’s determination that
Bivins was not the victim of deficient performance of counsel. Even if
Bivins’s counsel rendered deficient performance, we conclude that there is
no reasonable probability that the result of the sentencing phase would
have been different.

Bivins also makes a discrete claim that the post-conviction court
erroneously held in conclusion of law no. 101 that trial counsel “provided
competent assistance during the sentencing hearing before the judge.” (R.
at 598.) In support of this argument, Bivins cites Averhart v. State, 614
N.E.2d 924 (Ind. 1993). In Averhart, we vacated a death sentence where
counsel essentially abandoned his client both at the penalty phase before
the jury and at judicial sentencing. Id. at 931. Here, as we have seen,
this was not the case in the penalty phase. Further, after the penalty
phase here, counsel commissioned a psychological evaluation of Bivins. At
judicial sentencing, he presented the evaluation to the court; reminded the
court of the mitigating evidence presented during the penalty phase; and
asked the court to consider evidence of intoxication and Bivins’s mental
state at the time of the crime. Counsel’s performance at judicial
sentencing does not lead us to a conclusion contrary to the post-conviction
court’s determination that trial counsel provided competent assistance
during judicial sentencing.

II

Bivins contends that he did not receive the effective assistance of
counsel to which he was entitled when his trial counsel (a) failed to
discover certain statements made by Bivins’s accomplices, Ronald Chambers
and Scott Weyls, and by Joni Chambers (Chambers’s wife) to police, and (b)
failed to impeach Chambers’s and Weyls’s testimony at trial in several
important respects.[5]

A

During the course of investigating the crimes of which Bivins was
convicted, the Indiana State Police took statements from Chambers on
February 6, 1991, Weyls on January 18, 1991, and Joni Chambers on August 5,
1991. Although Bivins’s trial counsel had requested copies of any
statements made by persons other than Bivins which were relevant to the
proceedings, these statements were not disclosed. (The police had taken
additional statements from these individuals at other times which were
disclosed.) Bivins now argues that, had counsel conducted a reasonable pre-
trial investigation into the backgrounds of Bivins’s co-defendants, rather
than relying solely upon the State to provide impeaching materials, they,
like post-conviction counsel, could have easily discovered the existence of
these statements. In response, the State argues that because trial counsel
had requested all such statements as part of a continuing discovery
request, their performance met the minimum necessary standards of
performance. The State also argues that Bivins was not prejudiced by the
absence of these statements.

The post-conviction court made certain findings of fact from which it
concluded that trial counsel’s performance was not deficient for failing to
discover the three pre-trial statements given by Chambers, Weyls, and Joni
Chambers. (Concl. of law no. 88, R. at 590.) In particular, the post-
conviction court held: “On April 15, 1991, [defense counsel] Gross served
upon the prosecutor a motion to produce all statements made by any persons
relevant to this case. Counsel is not required to do anything more.”
(Id.)

Our review of the record indicates that there was evidence to support
the post-conviction court’s findings of fact. In particular, the
prosecutor had been served a motion to produce all such statements. And
our review of the findings does not lead us to an opposite conclusion.
While we are not prepared to say that in all circumstances, “[c]ounsel is
not required to do anything more” than file a discovery request to comply
with the Sixth Amendment, here we find the conclusion valid. The request
was filed; the prosecutor had a clear legal obligation to comply with it
(see part III, infra); the prosecutor did in fact supply other statements
by these witnesses pursuant to the request; and in this appeal Bivins
himself points to nothing that suggests that counsel should have suspected
that its discovery request was not being complied with in full. We find
that counsel’s performance in failing to discover the three pre-trial
statements was not deficient within the meaning of the first prong of the
Strickland test and, as such, Bivins was not denied the effective
assistance of counsel to which he was entitled. See Rondon, 711 N.E.2d at
518 (finding no ineffective assistance of counsel where counsel did not
discover information beyond what the State had supplied, which included
witnesses’ statements, police reports, inventory reports, photographs, lab
reports, arrest reports, and an autopsy report).

B

Bivins also argues that he was denied the effective assistance of
counsel to which he was entitled when his trial counsel failed to use the
statements just discussed, other pre-trial statements by Chambers and
Weyls, and the in-court testimony of Chambers and Weyls to impeach their
testimony in several important respects.

Bivins begins this line of argument by contending that the State’s
theory was that he had gone on a crime spree with the intent of killing
someone to see how it felt and that evidence of this theory came
exclusively from Chambers and Weyls. Because Chambers and Weyls had
accompanied Bivins on the crime spree, he contends that the State had an
interest in showing him as the most culpable while portraying Chambers and
Weyls as less involved and less culpable. This, Bivins reasons, would have
helped the State by bolstering their credibility to the jury and to the
court. As such, Bivins’s argument continues, effective assistance of
counsel demanded that the defense prove that both Chambers and Weyls were
lying during their direct examination testimony. Bivins points to facts in
the three undisclosed pre-trial statements and other statements to which
defense counsel had access during trial, and inconsistencies between
Chambers’s and Weyls’s out-of-court statements, all of which Bivins
contends demonstrates a much greater degree of involvement in the crimes
than their in-court testimony indicated. Yet, Bivins says, there was no
such cross-examination along these lines. Br. of Appellant at 65-71.

Two examples suffice. Chambers and Weyls both testified that Weyls
stayed in the car during the Dollar Inn robbery. Yet in a sworn statement
taken from Chambers on October 2, 1991, and available to trial counsel at
trial, Chambers told authorities that Weyls was in the hotel room at the
Dollar Inn and that Weyls may have hit one of the robbery victims. Second,
Chambers testified initially that all three men went into the restroom at
the rest park and then all three left the building and walked toward the
car. Chambers said that he and Bivins then returned to the men’s room and
found Radcliffe washing his hands. But Weyls testified that he saw
Chambers and Bivins approach Radcliffe and that each of them took a hold of
Radcliffe and shoved him into the men’s room. Bivins argues that defense
counsel failed to impeach these State witnesses by failing to point out the
contradictions in their testimony. Br. of Appellant at 67-68.

Bivins also makes a similar argument that it was in the State’s
interest that Chambers and Weyls be portrayed as extremely cooperative
witnesses, again for the purpose of enhancing their credibility to the jury
and the court. Id. at 68. As such, Bivins contends, effective assistance
of counsel demanded that the defense demonstrate that Chambers and Weyls
had not been cooperative and only agreed to give testimony favorable to the
State’s theory when it was to their benefit, e.g., when certain charges
against them were dropped. Bivins contends that the three undisclosed
statements demonstrate that during previous meetings with authorities,
Chambers and Weyls did not supply information concerning the murder and
that Chambers had denied any involvement in the crimes from the time of his
arrest until he gave his statement on October 2, 1991. Id.

The post-conviction court made certain findings of fact from which it
concluded that the methods of cross-examination are a matter of trial
strategy, and that trial counsel had competently cross-examined Chambers
and Weyls:

93. Counsel competently cross-examined Bivins’[s] accomplices.
“[T]he nature and extent of cross-examination is a matter of trial
strategy, delegated to trial counsel.” Osborne v. State, 481 N.E.2d
376, 380 (Ind. 1985). Counsel thoroughly questioned Chambers about
whether he was telling the truth, about his prior convictions and
periods of incarceration for burglary, theft, vehicle theft, and
possession of stolen property, his parole status at the time of the
instant offenses, about the fact that he was charged with murder for
the instant offense but that charge was reduced to A felony robbery
and four other charges were dismissed as part of a plea agreement with
the prosecutor, about the fact that he believed he was testifying
under a grant of immunity, about the fact that he had reached a plea
agreement concerning his Tippecanoe County case for which he would
receive no additional time, about his motivation for testifying, and
about details of the charged offenses of January 16, 1991. Counsel
questioned Weyls about his present incarceration for two counts of
class A felony robbery and three class D felonies, and his prior
convictions for theft, auto theft, robbery, second-degree murder and
commission of a felony while armed with a deadly weapon ([T.]R. at
3386-88). Through cross-examination, defense counsel also reminded
the jury that Weyls was testifying under a grant of immunity ([T.]R.
at 3389). Counsel also questioned Weyls about the details and his role
in the events of January 16, 1991 ([T.]R. at 3389-3397). Such cross-
examination tested the State’s evidence and cannot be said to be
unprofessional or to have deprived Bivins of a fair trial.

(R. at 593-94.)

Our review of the record indicates that there was evidence to support
the post-conviction court’s findings of fact. During cross-examination,
trial counsel impeached Chambers’s testimony, and thereby attacked his
credibility, by presenting evidence of his prior convictions including
theft, burglary and confinement.[6] Counsel further attacked Chambers’s
credibility by impeaching his motivation for testifying against Bivins. In
particular, Chambers was forced to testify that he had entered into a plea
agreement in which the murder charge against him was reduced to a robbery
charge and all other charges against him were dropped completely.
Chambers’s cross-examination also yielded the fact that Chambers was
testifying against Bivins under the protection of use-immunity – that he
was shielded from prosecution for any self-incriminating statements he made
to implicate Bivins.[7]

In trial counsel’s cross-examination of Weyls, counsel asked Weyls
about his present incarceration for two counts of Class A felony robbery
and three Class D felonies, and his prior convictions for theft, auto
theft, robbery, second-degree murder, and commission of a felony while
armed with a deadly weapon. Trial counsel informed the jury that, similar
to Chambers’s situation, Weyls was also testifying under a grant of
immunity. Counsel further questioned Weyls about the details concerning
his role in the events of January 16, 1991.

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that trial counsel conducted competent cross-
examinations of State witnesses, Chambers and Weyls. While there were
inconsistencies between some of the out-of-court and in-court statements
and between the in-court testimony of these two witnesses that might have
been useful for impeachment purposes, counsel is permitted to make
reasonable judgments in strategy. See Olson v. State, 563 N.E.2d 565, 568
(Ind. 1990) and Fugate v. State, 608 N.E.2d 1370, 1373 (Ind. 1993) (each
holding that the method of impeaching witnesses was a tactical decision, a
matter of trial strategy, and did not amount to ineffective assistance of
counsel). Here, trial counsel repeatedly placed the credibility of
Chambers and Weyls into question. In opening argument, trial counsel
vigorously raised its “the deal with the squeal” theme, emphasizing the
fact that Chambers entered into favorable plea agreement and that both
Chambers and Weyls were granted use-immunity. (T.R. at 2592-93.) As
discussed supra, counsel repeatedly attacked the credibility of Chambers
and Weyls using the plea agreements, the use-immunity arrangements, and
their prior convictions. The post-conviction court’s findings support its
conclusion that counsel’s cross-examination of Chambers and Weyls was not
deficient within the meaning of the first prong of the Strickland test and,
as such, Bivins was not denied the effective assistance of counsel to which
he was entitled. See, e.g., Harrison v. State, 707 N.E.2d 767, 780 (Ind.
1999) (ruling that where trial counsel challenged the credibility of two
state witnesses in opening and closing statement, and further conducted a
thorough cross-examination of these witnesses, counsel’s failure to obtain
impeaching evidence offered at post-conviction stage was not outside the
range of acceptable counsel performance under Strickland), cert. denied,
120 S. Ct. 1722 (2000); Stanely v. State, 479 N.E.2d 1315, 1317 (Ind. 1985)
(holding that where trial counsel attacked the credibility of a State
witness by eliciting information about the witness’s alcohol consumption
and prior acts of arson, counsel’s performance was not deficient in failing
to call a Defense witness for further impeachment).

III

Bivins contends that he is entitled to post-conviction relief because
the State violated its obligation to disclose material exculpatory evidence
by failing to provide defense counsel prior to trial the statements of
Chambers, Weyls, and Joni Chambers discussed in part II, supra. In
preparation for post-conviction proceedings, Bivins obtained the three
statements which he contends are exculpatory. He is, of course, correct
that State has an affirmative duty to disclose evidence favorable to a
criminal defendant. See Kyles v. Whitley, 514 U.S. 419, 432 (1995) (citing
Brady v. Maryland, 373 U.S. 83 (1963)). The State does not defend and we
express our strong disapproval over the failure to provide these documents
to the defense. As both the United States Supreme Court and this Court
have repeatedly said, the right of a criminal defendant to access
information in the defendant’s file is essential to the constitutional
right of due process of law. See Denney v. State, 695 N.E.2d 90, 94 (Ind.
1998) (citing Brady, 373 U.S. at 87); Johnson v. State, 693 N.E.2d 941, 946
(same), reh’g denied; Games v. State, 684 N.E.2d 466, 471-72 (Ind. 1997)
(same), modified on other grounds, 690 N.E.2d 211 (Ind. 2000); Bellmore v.
State, 602 N.E.2d 111, 119 (Ind. 1992) (same).

However, a violation of the State’s pre-trial obligation to disclose
these documents is not enough, in itself, entitle a petitioner post-
conviction relief. That requires a demonstration that the undisclosed
favorable evidence “could reasonably be taken to put the whole case in such
a different light as to undermine confidence” in the trial court’s
judgment. Kyles, 514 U.S. at 435.

Bivins argues that this is the case here, using the same reasoning
which we analyzed in the preceding section. That is, Bivins contends that
the documents would have undermined the credibility of the State’s two
witnesses, Chambers and Weyls, both as to their degree of involvement in
the crimes and their degree of cooperation with the authorities in solving
the crimes.

We begin our analysis by describing the three statements at issue.

On February 6, 1991, shortly after the Radcliffe killing, Chambers
gave a statement to Officers Reed and Butler regarding an automobile
accident that occurred on December 24, 1990. In the statement, Chambers
explained that the truck driven by him belonged to Bivins, whom he had met
while they were incarcerated together. Chambers also denied being
acquainted with Weyls. At the post-conviction hearing, trial counsel
testified that this statement was not “very important other than to show
that Ron Chambers knew Jerry Bivins,” an issue not disputed at trial. (R.
at 1,658, 1,780-81.)

On January 18, 1991, two days after the Radcliffe killing, Scott Weyls
gave a statement to Officer Butler following Weyls’s arrest for public
intoxication. Officer Butler questioned Weyls regarding a liquor store
robbery that had occurred in the town of Rossville, Indiana. Weyls denied
having committed any armed robberies since August 1990. When questioned
about whether he was acquainted with Bivins, Weyls admitted that he knew
Bivins from their days of incarceration, and that he had seen Bivins
recently. Officer Butler informed Weyls that he (Weyls) was a suspect in
the robberies and the Radcliffe killing. Weyls denied having any knowledge
regarding the Radcliffe killing other than what he heard in the news
media.[8] At a post-conviction hearing, trial counsel agreed that Weyls’s
January 18, 1991, statement could have been used to contradict Weyls’s in-
court testimony. Counsel testified that even though Officer Butler
“specifically asked about the murder at the rest park, [Weyls] gave no
information for [the murder] at that particular time.” (R. at 1782-92.)

Officer Butler also took a statement from Joni Chambers, Chambers’s
wife, on August 5, 1991. In that statement, Joni Chambers told police
about Chambers’s account of the robberies at the Dollar Inn, the Holiday
Inn, and the rest park. Joni reported that Chambers told her that he,
Weyls, and Bivins participated in the robberies. Joni also stated that
according to Chambers, Bivins shot Radcliffe in the back of the head. Joni
reported that when Chambers asked Bivins why he had shot Radcliffe, Bivins
responded that he just wanted to know what it felt like to kill somebody.
She also told the officer about other robberies committed by Bivins.
Officer Butler, who worked in Tippecanoe County, did not give the statement
to the Boone County prosecutor.

The post-conviction court made certain findings of fact from which it
concluded that no Brady violation occurred:

65. The claim concerning non-disclosure of Chambers, February
6, 1991 statement lacks merit because that statement concerned an
automobile accident, not the crime spree for which Bivins was
convicted. As Gross indicated, this statement would not be of much
use, other than to prove Chambers knew Bivins, a fact not disputed at
trial. Any impeachment value in the portion of the statement where
Chambers denies knowing Weyls would have been slight because whether
Chambers knew Weyls was not a disputed issue at trial and could have
easily been explained as the attempt of accomplices to keep quiet
about their offenses until implicated. Counsel thoroughly cross-
examined Chambers about other matters and impeached him with evidence
of prior convictions and his plea agreements. Moreover, in light of
Bivins’[s] confessions and other evidence implicating him, there is no
reasonable probability of a different result if the statement had been
provided to counsel. See House[ v. State], 535 N.E.2d [103, 107 (Ind.
1989), reh’g denied.]

66. Nor is there any reasonable probability of a different
result had Scott Weyls’[s] January 18, 1991[,] statement to Officer
Butler been provided to counsel. Even without the statement, counsel
was able to impeach Weyls with evidence of other convictions. Though
the undisclosed statement was inconsistent with Weyls’[s] trial
testimony about events on the night of the murder in that he denies
knowledge of the crimes in the statement, the inconsistency could have
been easily explained at trial as the predictable attempt of
accomplices to keep quiet about his offenses until implicated. Gross
admitted that before trial he had reviewed transcripts of telephone
conversations, conversations between Bivins and Weyls before trial, in
which Weyls had not implicated Bivins in the crimes. Thus, counsel
could have used these conversation, if he had wished, to suggest Weyls
had given statements inconsistent with his trial testimony. The
prosecutor was not attempting to hide Weyls’[s] earlier version of
events. Moreover, Chambers also testified about Bivins committing the
theft at the Lazarus store in Lafayette, committing the robbery at the
Holiday Inn and robbing and shooting Mr. Radcliffe at the rest park
([T.]R. at 3666-83). Most significantly, Bivins himself confessed to
police that he shot Mr. Radcliffe and provided details about the
murder weapon and its location. Bivins, 42 N.E.2d at 937.
Accordingly, there is no reasonable probability of a different result
if Weyls had been impeached with his pretrial statement. See House,
535 N.E.2d at 107. The non-disclosure of this statement did not
undermine the reliability of the verdict or sentence.

(R. at 574-75.)

Our review of the post-conviction court’s findings does not lead us to
an opposite conclusion than that no Brady violation occurred. The
prosecution’s suppression of favorable evidence upon the defendant’s
request of evidence “violates due process where the evidence is material
either to guilt or to punishment.” Brady, 373 U.S. at 87. The United
States Supreme Court in United States v. Bagley, 473 U.S. 667 (1985),
determined that material impeachment evidence as well as exculpatory
evidence fall within the Brady rule. Evidence is material “if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Id. at
682; Ky1es, 514 U.S. at 433-34; Williams v. State, 724 N.E.2d 1070, 1083
(Ind. 2000). A “‘reasonable probability’ of a different result” is
demonstrated “when the government’s evidentiary suppression ‘undermines
confidence in the outcome of the of the trial.’” Kyles, 514 U.S. 434
(quoting Bagley, 483 U.S. at 678); Williams, 724 N.E.2d at 1083. If we
find that a “reasonable probability” exists, then the favorable evidence is
material under Brady, and its suppression from the prosecution results in
constitutional error thereby warranting a new trial. See Kyles, 514 U.S.
at 434-36.

We are not led to a finding opposite the post-conviction court’s that
there was no reasonable probability that had the undisclosed statements of
Chambers and Weyls been available to trial counsel, the outcome of Bivins’s
trial would have been different.

As to Chambers’s statement given to authorities on February 6, 1991,
this statement concerned an automobile accident which had occurred almost a
year earlier. The State’s failure to discover this statement did not
prejudice Bivins as trial counsel testified that he would have used it
merely to show that Chambers knew Bivins — an uncontested fact at trial.
While Chambers did not voluntarily disclose his involvement in the
Radcliffe killing, our review of the record indicates that the authorities
never questioned Chambers about such information at the time. Although
trial counsel could have used this statement to impeach Chambers on the
basis that Chambers first denied having known Weyls, counsel employed
another method of impeachment by questioning Chambers about his plea
agreements, use-immunity arrangements, and prior convictions. See part II-
B, supra.

Weyls’s statement, in which he had explicitly denied that he was
Bivins’s accomplice, could have been used to impeach Weyls on cross-
examination. But, as discussed in part II-B supra, trial counsel
effectively impeached Weyls by attacking his plea agreement, use-immunity
arrangements, and prior convictions.

Although Joni Chambers’s August 5, 1991, statement was introduced at
the post-conviction hearing, Bivins failed to advance any argument
concerning it in his petition for post-conviction relief. Accordingly, the
argument is not available for review here. See Roche, 690 N.E.2d at 1122-
23 (holding that claims not presented until appellant’s brief in an appeal
from denial of post-conviction relief are waived) (citing Canaan, 683
N.E.2d at 235).

Furthermore, no information contained in either Chambers’s or Weyls’s
statement in any way relieved Bivins of any guilt, portrayed Bivins as
having less culpability, or was in any other way exculpatory. And the
State presented overwhelming proof that Bivins killed Radcliffe: Bivins
voluntarily confessed to committing the murder, see Bivins, 642 N.E.2d at
941; and Bivins directed the police to the location of the murder weapon,
see id. Thus, in evaluating the significance of the undisclosed
statements, the State’s case would not have been significantly impaired had
they been available to trial counsel. Because we find that the undisclosed
favorable evidence did not put the “whole case in such a different light as
to undermine confidence” in the trial court’s judgment, we affirm the post-
conviction court’s conclusion that no Brady violation occurred. See Games,
684 N.E.2d at 471-72 (holding that the State’s failure to give the
defendant impeachment evidence did not undermine the confidence in the
trial’s outcome where trial counsel employed other methods to impeach a
State witness and the evidence against the defendant was overwhelming).

IV

Bivins contends that he was denied the fair trial to which he was
entitled when fliers with negative information about him were posted in and
around the courthouse during trial. The fliers were printed on 8½” x 11”
paper and contained comments concerning the expense of Bivins’s clothing
which had been purchased at county expense.

This issue was available to Bivins on direct appeal and so may not be
litigated here. A post-conviction relief proceeding is not available for
issues which could have been raised earlier. See Weatherford v. State, 619
N.E.2d 915, 917 (Ind. 1993), reh’g denied.

Furthermore, the trial court made certain findings of fact to the
effect that there was no evidence showing that any of Bivins’s jurors saw
the fliers. (See Finding of fact no. 17.) We find nothing in the record
in conflict with this finding. Indeed, Bivins does not contend that any
juror saw or was otherwise made aware of the fliers. See Br. of Appellant
at 81-85. In the absence of any suggestion that any juror saw or was
otherwise made aware of the fliers, we conclude that the fliers in no way
adversely affected Bivins’s right to a fair trial.

V

Bivins raises several challenges to the constitutionality of the
Indiana death penalty statute. In his direct appeal of his convictions and
death sentence, he raised multiple challenges to the constitutionality of
the statute which we analyzed at length. See Bivins, 642 N.E.2d at 945-49.
We hold that Bivins has sufficiently litigated the constitutionality of
the statute.

Conclusion

We affirm the post-conviction court’s denial of Bivins’s petition for
post-conviction relief.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

-----------------------
[1] The record of proceedings in the trial court will be identified in this
opinion as “T.R.” and the record of proceedings in the post-conviction
court as “R.”
[2] Unless otherwise indicated, references in this opinion to the Indiana
death penalty statute, Ind. Code § 35-50-2-9, are the version published in
the 1990 Supplement to the Indiana Code. This was the version in effect on
the date of Bivins’s crimes.
[3] Twice previously defendants in capital cases claimed on appeal that
their trial courts erroneously refused to give the instruction that Bivins
claims was erroneously tendered and given in his case. See Canaan v.
State, 541 N.E.2d 894, 911 (Ind. 1989) (holding no abuse of discretion in
trial court’s refusal to give the instruction), cert. denied, 498 U.S. 882
(1990); Fleenor v. State, 514 N.E.2d 80, 86 (Ind. 1987) (holding another
instruction conveyed the same basic message), cert. denied, 488 U.S. 872
(1988).
[4] We suggested as much in our opinion on direct appeal. Bivins, 642
N.E.2d at 946 n.6.
[5] Our opinion on direct appeal recounted that Chambers and Weyls were
with Bivins throughout the evening in which the crimes which are the
subject of this proceeding were committed. See Bivins, 642 N.E.2d at 935.
[6] Trial counsel elicited testimony from Chambers revealing that the State
initially charged Chambers with two counts of child molestation and one
count of rape, but then offered Chambers a plea bargain of eight years for
confinement only.

[7] Where a witness has been granted use-immunity, any evidence given by
that witness in open court “may not be used in any criminal proceeding
against that witness. . . .” Ind. Code § 35-37-3-3(a) (1988).
[8] At the post-conviction hearing, Weyls explained that he had always
denied any involvement in the crimes, and that he and Chambers met the day
after the murder to agree to “keep their mouths shut.” (R. at 1766.)